Prichard v Honeywell Limited

1. Lee Davyd Prichard (the Plaintiff) sues Honeywell Limited (the First Defendant) and Colliers International (ACT) Pty Ltd (the Second Defendant) in negligence for damages for injuries sustained when he tripped and fell over a manhole cover on the ground in a loading dock while delivering soft drinks to a property on 27 September 2018. At the time, the Plaintiff was employed by Toll Holdings as a truck driver.

2. The property known as the Louisa Lawson Building was owned by Perpetual Corporate Trust Limited. The First Defendant was engaged as the Facilities Manager of the property and the Second Defendant was engaged as the Property Manager of the premises. In broad terms, the Plaintiff sues both defendants as occupiers of the premises on which he fell. The exact nature of each Defendant’s occupation is defined by their contractual obligations however for present purposes, it is sufficient to describe them as joint occupiers for the purposes of the Civil (Wrongs) Act 2002 (ACT) (the Wrongs Act).

3. The Plaintiff contends, and it was not disputed, that at the date of the accident, the First Defendant had an obligation to inspect, maintain and repair the premises including the loading dock and, the Plaintiff contends, and again it was not disputed, that the Second Defendant had an obligation to supervise the performance of the First Defendant’s contractual duties.

4. In the alternative, the Plaintiff argued that both Defendants owed him a common law duty of care to take reasonable precautions against foreseeable risks of injury.

Background

5. The Plaintiff says that on the day of the accident he drove the truck into the loading dock in the Louisa Lawson Building. Having made the delivery, he was walking towards some rubbish bins in the loading dock area when he tripped and fell and was injured.

6. The Plaintiff says that while he did not see what he tripped on at the time, he returned a few days later, on 4 October 2018, and saw that what he had tripped on was the lid of a “Gatic” manhole cover set into the loading dock floor and which had subsided from ground level, leaving a height difference between the top of the manhole cover and the surrounding ground. He took photographs of the manhole cover.

7. The Plaintiff conceded that there may have been warning signs painted on the ground of the loading dock around the area where the manhole cover was located but said that he did not see them because the sunlight on that day was so bright he saw nothing but white concrete.

8. In short, the Plaintiff alleges that the First Defendant failed to inspect or properly inspect the manhole so as to detect the subsidence and the Second Defendant failed to properly supervise the execution of the First Defendant’s duties under the contract.

9. The Plaintiff’s case is that as a result of the fall, he suffered and continues to suffer from disability and pain, and he is unable to find work.

Demeanour and credibility

10. Before turning to the Plaintiff’s evidence it is useful here to observe that his evidence, particularly during cross-examination was accompanied by vulgar and abusive language directed to counsel for the First Defendant; was non-responsive, often being accompanied by childish responses and his conduct generally prompted a number of adjournments during the hearing so that he might be advised by his counsel about his conduct, advice which seemed to fall on deaf ears.

11. It was submitted by the Defendants that the Court, in assessing the reliability of the Plaintiff’s evidence, should take his demeanour into account. Courts have expressed caution about the use of demeanour in fact finding and what was said by Atkin LJ in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83 is particularly apt: ... an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

12. While it is open to a Court to determine facts partially by reference to demeanour, in this case, such were the inconsistencies within the Plaintiff’s own accounts of events, the contradiction of his account by objective evidence and the, at times, improbable nature of his evidence makes it unnecessary to have recourse to his demeanour in finding, as I do that unless his evidence on controversial matters is supported by other, objective evidence, I am unable to accept it as being honest and accurate.

13. Much contradiction of the Plaintiff’s evidence is found in the notes of medical practitioners and in hospital notes. It is understood that notes made by medical and other health practitioners can be inaccurate and it may be that caution should be exercised in making credibility findings based on conflicts between what a witness has said and a clinical or other record. For example, here on a number of occasions over a period of years, medical and hospital notes record that the Plaintiff said he was working as a welder, a fact he denied in his evidence. Equally whether the Plaintiff was “fit as a fiddle” on the day of the accident is directly contradicted by the assessments, treatments and prescribed medications referred to in the medical records compiled over years.

14. By way of further example of the Plaintiff’s evidence and internal inconsistencies, he was taken to a statement he made to an investigator engaged by Toll about the circumstances of his accident.

15. The Plaintiff was asked: Do you remember preparing a statement for the workers compensation insurer in respect of the fall you say you suffered?---The one I was made to sign in duress? Well, Mr Prichard, did you make a statement and sign it?---The one I was made to sign under duress? … And you read that before signing this statement, correct?---I don't remember reading it, no. That's your signature at the bottom of the page, isn't it?---Close to it. Could you turn to the last page, please, which is page 8 of 8, you'll see down the bottom. That's your signature with the date?---That's not my signature. That's not your signature. What about the one on the page before, back on page 7?---That's different again. What about the one on the page before?---That's different again. What about the one on the page before?---Look at that, it's different again. So you say none of those are your signature, do you?---I'm not saying that, no … Do you say that none of those are your signatures?---They could be.

16. No evidence nor explanation was ever advanced as to why the Plaintiff asserted that the statement was signed “under duress” nor why he was unsure whether the signatures on the pages were his.

17. Turning to the part of the statement that concerned the Plaintiff’s previous medical history, he was asked about a right shoulder injury that occurred in 2011 and notwithstanding his assertion in the document that he had completely recovered from it, the Plaintiff said that he had never recovered from it. While the document described him as having an injury in 2015 which he described as a “sprain”, he denied it was ever a sprain.

18. Finally, by way of example, the Plaintiff was asked about his physical condition at the date of his fall on 27 September 2018. In his evidence in chief, the Plaintiff described his physical conditions as “fit as a fiddle”. He was asked: Was it true, as at the time of your fall on 27 September 2018, that you had no issue with regards to either of your shoulders?---I was pretty fit at the time. Was it true, Mr Prichard, that at the time of your fall you had no issue with regards to either of your shoulders?---I don't think I did. Was it correct that there were no pre-existing conditions in respect of your left shoulder that you had failed to disclose to Dr Vrancic?---I don't remember, no. Did you tell her that you had no previous problem with your left shoulder?---I don't remember, no.

19. The Plaintiff was also asked about seeing Dr Powell after this injury to whom he said that following the injuries in 2015 the symptoms had resolved. He was then asked: See, if you did say to Dr Powell that your symptoms had resolved, that would be consistent with you saying to her Honour yesterday that you were as fit as a fiddle by the time of your fall in 2018, wouldn't it?---I did say I was fit as a fiddle, but I've never fully recovered from that. The Plaintiff’s evidence

The accident

20. The Plaintiff said that after leaving school he had a number of jobs and obtained a high-risk forklift licence and a heavy rigid truck licence. He had worked as a driver of a concrete truck before commencing work with Toll Holdings and had other jobs as a delivery driver and as a tow truck driver.

21. The Plaintiff said he was employed by Toll Holdings for a few months before his accident. The Plaintiff’s duties were to drive the truck loaded with drinks and assist with the delivery of those to various customers. He worked with an offsider, who, on the date of the accident was Mr Elliott Luyt.

22. On the day of the accident, the Plaintiff and Mr Luyt were delivering drinks. The delivery to the Louisa Lawson Building was one of the first deliveries to be made, the Plaintiff estimated it was about 6:45 am. The Plaintiff said that once the delivery had been made he gathered up loose plastic which had been wrapped around the pallets of drinks and went to put it in the rubbish bin in the loading dock area when he fell. The Plaintiff said that the toe of his boot caught on the raised concrete lip at the edge of the manhole cover and that caused him to fall. He did not see the difference in height between the two surfaces before he fell because it was a bright morning and the sunlight was reflecting off the concrete.

23. The Plaintiff marked on a diagram of the loading dock where the truck was parked to make the delivery (Ex C). The truck was reversed into the area and the sides of the truck exposed to allow he and Mr Luyt access to the pallets of drinks there. The driver’s side of the truck was closest to the area in which the delivery took place. A photograph of that area shows a doorway with a pathway from it lined with lightweight bollards, ostensibly to delineate a path from the doorway out but which does not intrude into the loading dock area (MFI 5). The Plaintiff said that a person took delivery of the drinks in the area around the doorway.

24. To the right of the loading dock (looking into it from the front of the truck) and around a corner is an area enclosed on three sides and at the rear of that area is a wall with vents in it. The Plaintiff said that there was a row of rubbish bins along that wall.

25. The Plaintiff said that he removed the plastic from the pallets in the truck which were on the passenger side and walked from the passenger side of the truck, around the corner to his left to where the bins were. This path took him over the top of the manhole cover which the Plaintiff said was the most direct route from the truck to the bins.

26. It was when crossing over the manhole cover that the Plaintiff said he tripped on the edge of it and fell. He said he fell close to the corner of the manhole cover near where a yellow triangle is painted on the ground. The yellow triangle is one of two that were painted at the two corners of the manhole cover. On the cover, painted in yellow are the words “DANGER CONFINED SPACE ENTER BY PERMIT ONLY”.

27. The Plaintiff returned to the loading dock on 4 October 2018 and took photographs of the pit cover. He marked those photographs to show where he fell and his marking indicated a corner of the manhole cover which appears to be lower than the surrounding ground surface. The Plaintiff said that he tripped over the raised end with the end of his boot.

28. The Plaintiff said that when he fell, he “smashed” his right arm up to the elbow into the ground and, trying to break his fall, he tumbled onto his right shoulder hitting his head and both shoulders on the ground and his left arm and forearm also struck the ground. In demonstrating how he fell, the Plaintiff said he ended up on his back with both arms spread out. In answer to the question whether he looked around to see where he had fallen, the Plaintiff said he had hit his head pretty hard on the concrete and was pretty shaken up from which I assume he meant that he did not.

29. The Plaintiff said that after the fall, he got up, went to the bins and got rid of the plastic and walked back to the truck. The Plaintiff said that at the time of his fall, Mr Luyt was sitting in the truck with his feet on the dashboard. He asked Mr Luyt whether he had seen his fall, and Mr Luyt said he did not but said that he had seen the Plaintiff on the ground because he had heard a noise. The Plaintiff also said that Mr Luyt had his eyes shut, resting at the time of his fall.

30. The Plaintiff continued working that day and said he was feeling sore. His head, shoulders and arm were sore and he had a large bruise on his right elbow. At the end of his shift the Plaintiff asked to see a doctor and his employer sent him to see a general practitioner. He returned to work the following day although, he said he was not feeling his usual self but “didn’t want to let the team down”. He worked a full day. There followed a long weekend and the Plaintiff said he returned to work on Tuesday with Mr Luyt as his offsider. The Plaintiff said he found it difficult to work because he was in a lot of pain in his shoulders, neck, back and head. He said he had a bruise on his arm and grazes on his arm, shoulders and leg.

31. When the Plaintiff arrived at work on the day of the accident, the truck was already loaded with the products to be delivered that day. It was a truck which could contain 14 pallets of drinks, seven pallets on each side and the sides of the truck were enclosed by a curtain. The pallets were covered in thick “shrink wrap plastic”. In relation to each delivery he and the offsider were given consignment notes telling them where and what was to be delivered. The pallets were packed into the truck in order of delivery. At the point of delivery, the offsider would climb onto the tray of the truck and pass down the order referrable to that delivery. The first delivery of the day required the plastic wrapping of the particular pallet to be cut open as far as necessary to allow those particular items to be removed. The Plaintiff agreed that the shrink wrap remaining on the pallets provided a degree of stability to the load.

32. The delivery to Louisa Lawson building required goods to be removed from the first and third pallets on the passenger side of the truck.

33. On the day of the accident, before going to the Louisa Lawson building, the Plaintiff and Mr Luyt had made several small deliveries. It was suggested to the Plaintiff and denied that at the point that the Louisa Lawson deliveries were made it had not been necessary to remove the whole of the shrink wrap from the particular pallets.

34. Turning then to the physical layout of the loading dock, it was suggested to the Plaintiff that on entering the area at the back of the building where the loading dock was, there was an area to the right of the entry to the driveway with a series of yellow diagonal paint markings over a number of manhole covers between where he parked the truck and where he said he went to put rubbish in the bins. The Plaintiff denied those markings were there but said that all he could see was white concrete because the light in the loading dock was so bright it reflected off the ground blinding him to the presence of the yellow hazard markings and warning signs. It was suggested to him that having backed the truck into the loading dock, the front of the truck was facing north-west and the sun would be behind the building and the loading dock. Without answering the question, the Plaintiff said that it was “really bright”.

35. The photographs taken by the Plaintiff some days after his fall clearly depict the yellow markings although the Plaintiff suggested that the Defendants had “touched up” the yellow paint after his fall despite agreeing that he told no one at the Louisa Lawson building that he had fallen. The Plaintiff continued to assert that he could not see the yellow markings (if they were there) on the day of the accident because it was too bright.

36. The photographs taken by the Plaintiff when he returned to the area on 4 October 2018 clearly show not only the yellow lines but a black metal cover in the middle of the yellow markings which was, on his evidence directly in the path he took to reach the bins which he denied he could see because of the light.

37. Returning to the position of the rubbish bins into which the Plaintiff said he threw the plastic, and by reference to the photographs, the Plaintiff was shown the black metal manhole cover, which was, according to his evidence given the day before, directly in his path. The Plaintiff disagreed that had the bins been where he said they were, the path he took to them was less direct than walking straight from the truck to the bin area using a marked pedestrian area. When pressed, the Plaintiff said that he walked in the area of the manhole cover because he did not know where the bins were and was looking for them.

38. The Plaintiff agreed that loading docks can be dangerous and have specific hazards and that often in loading docks a path is indicated which is designated for pedestrians to walk. The Plaintiff did not agree that from the passenger side of the truck where it was parked to where he said the bins were located, there was a path marked for pedestrians which did not take him over the yellow hatched area. When shown the path on the photographs the Plaintiff said he did not look for it but said that had he had more time he would have noticed it. Other than saying that he had a job to do that day, the Plaintiff did not say why in particular he had insufficient time to check his surroundings for a safe pedestrian path.

39. Mr Luyt, who worked with the Plaintiff on the day of his fall gave evidence. He said that while there was no designated role about who would remove the goods to be delivered from the pallets, he took that responsibility. Once at the delivery site, they would cut part of the plastic off the top of the pallet to take out the goods. He said that he tried to avoid cutting as much of the plastic as possible until the pallet was low to stop the contents of the pallets from moving. Mr Luyt said that when a pallet had been emptied, his standard practice was to ball up the plastic and throw it into an empty bay in the truck to be disposed of later. He carried a knife with him for cutting off the plastic.

40. On the day of the accident, Mr Luyt said he had been working for Toll for a few months and had worked with the Plaintiff on and off for two weeks.

41. Mr Luyt was shown a photograph of the loading dock area which, he said accorded with his recollection of how it was on the day of the Plaintiff’s accident.

42. Mr Luyt said as part of his training he had been advised to use the marked pedestrian areas in loading docks to avoid potential hazards and always have a look around.

43. Although on the day of the Plaintiff’s accident, Mr Luyt said that it was a bright day, he was able to see the yellow markings on the ground of the loading dock as they drove in. There were rubbish bins in the loading dock. They were lined up beside each other not against the wall identified by the Plaintiff, but against the longer wall of that area behind and to the right of the area with the yellow painted markings. Mr Luyt marked the positions of those bins relative to the yellow markings (Ex D1 3). He said, referring to the photograph at page 39 of Ex A, which shows the manhole cover on which the Plaintiff said he tripped, that all of the rubbish bins were to the right of the yellow lines marking the edge of that area the furthest away from where the truck was parked.

44. Mr Luyt said that having made the delivery, he put the trolleys back in the truck and closed the side curtains and got into the passenger side of the truck. He could clearly see the rubbish bins from where he was sitting in the truck. When the Plaintiff got into the truck he told Mr Luyt that he needed to relieve himself and wanted to go over to the bins to do so. Although Mr Luyt suggested he wait until the next delivery stop which was only a short distance away, the Plaintiff insisted.

45. Mr Luyt said that he watched where the Plaintiff went on his way to the bins and said he did not go anywhere near the yellow marked area and he was about one or two metres away from the area in which the manhole was located. Mr Luyt described the manner of his movement as a “very light jog” and said: I saw him kick the back of his own feet and have a fall, where he then proceeded to do a roll, stand back up and continue on his merry way.

46. Mr Luyt said that when he fell, the Plaintiff fell frontwards onto his left side, did a roll and got up and went in the direction of the bins where he indicated he was going to relieve himself at the bins.

47. When the Plaintiff came back to the truck, Mr Luyt asked him if he was alright because, as he said, he saw him fall and the Plaintiff said he was fine. They continued on with the work of the day. Mr Luyt said that he asked the Plaintiff on other occasions during that day whether he was alright and he said he was “fine”. Mr Luyt agreed that when speaking to an investigator about this incident he recalled the Plaintiff rubbing his right arm occasionally.

48. It was not suggested to Mr Luyt that the accident did not occur in the way he described. It is clear that his account and that of the Plaintiff do not accord. Nor was it suggested to him that he had not seen the Plaintiff fall but had heard it nor that he had his eyes shut as the Plaintiff asserted.

49. I do not accept the Plaintiff’s account of how he came to fall. Aspects of his account are in my view implausible such as the light being so bright as to blind him from seeing the yellow hazard lines clearly marking out the manhole covers. He contradicted his evidence about the path he took to take the plastic to the bins, which required him to sweep wide of the passenger side of the truck to take him over the manhole cover and make a sharp left hand turn to get to where he said the bins were located, which he demonstrated in a marking on a plan of the area, against his later evidence that he did not take the shorter route of walking directly beside the wall between the truck and the bins because he did not know where they were when he set out.

50. While I accept that the Plaintiff gave a variety of different descriptions of how he fell, that is whether he tripped on a raised area or a sunken area of the manhole, they are not, in my view particularly persuasive of the issue of his reliability. Other matters, to which I will refer later such as the Plaintiff failing to disclose his 2015 shoulder injury to some doctors and on his job application form for Toll, undermine his reliability and, in my view impinge on his credibility. His evidence, for example about his functional restrictions preventing him from work, is undermined by his conversations in prison in which he is seeking to obtain the very kind of employment he said he was unable to perform. I am persuaded taking into account the whole of the evidence that the Plaintiff was not being honest in his evidence and I do not accept that he fell as he asserted on a part of the manhole cover.

51. Mr Luyt’s account of the Plaintiff’s fall is supported by the report he made to an investigator some weeks after the accident. While in submissions, counsel for the Plaintiff urged the Court to discount Mr Luyt’s evidence because he admitted that he did not like the Plaintiff, that does not cause me to consider his evidence unreliable.

52. I therefore conclude that while the Plaintiff did trip and fall on 27 September 2018, it was not because he tripped on some defect in the manhole cover and I find, accepting Mr Luyt that he fell when he tripped over his own feet some 1 to 2 metres away from the manhole.

53. The Plaintiff has thus failed to make out his case in negligence against either of the two Defendants and there will be a verdict for the Defendants against the Plaintiff.

54. In the event that I am incorrect in this finding I will consider the issue of liability of the Defendants if the Plaintiff did indeed fall on the corner of the manhole cover as he alleged and on the same basis will consider the issue of damages arising from the Plaintiff’s injury.

Condition of the Manhole Cover

55. As I have said, the Plaintiff returned to the loading dock some days after his fall and took photographs of where he said he tripped and fell.

56. The Plaintiff retained an expert to give an opinion on the condition of the manhole and whether it posed a risk of tripping. The expert did not conduct a view of the area but relied on the photographs taken by the Plaintiff on 4 October 2018.

57. Both Defendants argued that the report should not be admitted because it presented nothing more than a series of unsupported conclusions. Well before the hearing, the Defendants’ objections to the report had been sent in writing to the Plaintiff’s solicitor inviting consideration of them. While a second report was served, it addressed none of the raised objections.

58. At the hearing, the Defendants objected to the admission of the report on the same basis as notified to the Plaintiff. The Plaintiff proposed that the expert be called to adduce oral evidence to deal with the raised objections.

59. That proposed course prompted objection from both Defendants because, they fairly pointed out, it created a significant prejudice to the Defendants in challenging the witness without knowing what he was to say and without having the opportunity to obtain instructions from another expert on the matters to be raised.

60. Leave to call oral evidence from the expert was refused.

61. The Defendants’ application to reject the whole of the report was not acceded to nor were the passages in the report to which individual objections were taken excluded from the report at that stage. However given the nature of the objections, the weight to be given to the report and the expert’s conclusions must be considered.

62. Turning then to the particular objections taken to the expert report, there is no better place to start than by reference to Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 where Heydon JA said: 64. The basal principle is that what an expert gives is an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based. If other admissible evidence establishes that the matters assumed are "sufficiently like" the matters established "to render the opinion of the expert of any value", even though they may not correspond "with complete precision", the opinion will be admissible and material: see generally Paric v John Holland Constructions Pty Ltd [1984] 2 NSWLR 505 at 509-510; Paric v John Holland Constructions Pty Ltd [1985] HCA 58; (1985) 59 ALJR 844 at 846. One of the reasons why the facts proved must correlate to some degree with those assumed is that the expert's conclusion must have some rational relationship with the facts proved.

63. I observe that under the heading “Documents and Material”, the expert notes that he interviewed the Plaintiff by telephone and he “gave a clear account of the relevant circumstances”. No summary or transcript of that conversation was provided, and the reader is left in the dark as to what was said and how or to what extent it informed the expert’s opinion.

64. In paragraph 4.23, the expert says that the loading dock area “… is trafficked by trucks of various sizes, loaded or unloaded, which may drive over the manhole”. While it might be a reasonable assumption that there would be trucks in the loading dock areas, there is no apparent basis on which the expert could make the assumption that they would drive over the manhole.

65. At paragraph 4.29, the expert refers to what he calls a “discrepancy” between the height of the lid of the manhole and the surrounding surface; “the depth of the discrepancy between the subsided pit lid and the surrounding concrete is at 25mm, and is probably more”.

66. The Defendants’ objection to this conclusion is twofold. First, it was argued that there is an inherent difficulty in making definitive assessments based on photographs.

67. While it is not impermissible to make a finding of fact based on photographic evidence alone, courts have cautioned care noting that “… they can be deceptive, particularly in relation to perspective and distance. This was the subject of observation in Angel v Hawkesbury City Council (2008) Aust Torts Reports 81-955; [2008] NSWCA 130 where the Court (Beazley and Tobias JJA, Spigelman CJ, Giles and Campbell JJA agreeing) said, at [69]-[72], that photographic evidence could not trump the direct evidence of witnesses that compelled acceptance”: see [93] in Goode v Angland [2017] NSWCA 311; 96 NSWLR 503, as cited in Chandler v Transport for New South Wales [2023] NSWCA 6 at [19].

68. It was argued that there was no evidence from the Plaintiff about the “discrepancy” in heights asserted between the surfaces of the manhole cover and surrounding area notwithstanding that he returned a few days after his fall to take photographs of the area.

69. The Defendants argued that the photographs attached to the expert report appear to be copies of photographs taken by the Plaintiff but of a different, lesser quality which must give cause for greater caution in relying on them to conclude the depth.

70. Secondly, and perhaps demonstratively of the inherent difficulty of using photographs as the basis of factual findings, is the caveat the expert himself put on the assessment of the difference “… probably more”, which in my view clearly shows that the photograph itself did not allow him to conclude what was the asserted height differential.

71. Potent however is the argument that in this regard, and indeed in relation to a number of conclusions contained in the report, there is no foundation or explanation for why the expert came to that view. This, in my view goes considerably to undermining what weight could be attached to the expert’s opinion.

72. Objection was taken to the paragraphs 6.1 to 6.6 in which the expert sets out paraphrased sections of the Wrongs Act which it seems cannot reasonably form part of his assessment of the physical condition of the area and while irrelevant are not of any particular weight.

73. However, the expert follows at paragraphs 6.7 to 6.13 by citing the standards relevant to pedestrian safety without apparent relevance to an area such as a loading dock. There is no basis ascertainable from the report that these standards have application to private areas.

74. The same objection is raised in relation to paragraphs 6.14 to 6.21 which cites standards relating to health and safety at work. The report recites the standards but the author makes no connection between those standards and the loading dock and its surrounds and, of course, as the Defendants submitted, the Plaintiff was not an employee.

75. Under the heading “Discussion and Analysis” the report contains the following passages to which objection was taken: 7.3 The photographs … show plainly that this is a loading dock area evidently trafficked by heavy vehicles, and that they can drive over the manhole cover. This probably contributed to its subsidence. … 7.6 Plainly, it was an area which was likely to be used by pedestrians, and the appearance of an unexpected lip in an area where people were walking created a tripping hazard.

76. There is no evidence in the case about whether pedestrians used or could use or were likely to use the loading dock area and the author gives no basis for the conclusion.

77. The Expert report continued: 7.7 There is nothing in what I learnt from [the Plaintiff] at interview, or in reading the briefing material, which persuaded me that he contributed to his fall by any culpable omissions or action of his own. … 7.9 I consider that the injuries sustained by [the Plaintiff] are consistent with the account of events set out above.

78. The author exposes no expertise nor any facts on which these two assertions could be based.

79. The Defendants objected to the comments of the expert in paragraph 7.10(1) to (5).

80. In paragraph 7.10(1) the author repeats his assertion that the manhole is in “what appears to be a pedestrian-trafficked area” without providing the basis for that opinion.

81. In paragraph 7.10(2) the author says about the state of the manhole: … it is clearly degraded, and its appearance in the photographs provided suggest that it has not fallen below the level of the concrete in a very short time, but over a period.

82. The author continues and says that it is likely that the degradation of the alignment between the lid and surrounding concrete was “contributed largely to by the movement of heavy traffic across the manhole” but he eschews this as an explanation for the discrepancy adding that had the difference in height been noticed, maintenance had evidently not been carried out.

83. How the author could determine when the discrepancy arose is not explained. There is no evidence that traffic of any kind drove over the manhole and, again the author provides no basis for his assumption that it did.

84. In paragraph 7.10(3) the expert speculates the cost of repairing the misalignment between the two surfaces and again supposes the area is accessed by pedestrians and in paragraph 7.10(4) the author contends that “[t]he misaligned manhole was an inappropriate feature compared to usual loading dock designs, and for provision for the avoidance of tripping risks in areas generally used by pedestrians.” He does not indicate what a “usual loading dock design” would be or how it differed from the present one.

85. In short, it was submitted that the expert report ought to be rejected as having no weight. I agree. It is composed of conclusions with no supporting reasoning or evidence, it calls in aid standards apparently unrelated to the nature and use of the area without explanation for how they might be relevant and, in short, provides an inadequate basis for the opinion offered. I do not propose to rely on it in determining this aspect of the matter.

Liability of the Defendants

86. Here, the Plaintiff relied on s 168 of the Wrongs Act to fix the Defendants with liability for his injury that is, the Defendants as occupiers of premises of which the loading dock area formed a part. In the alternative, the Plaintiff alleged that the Defendants owed common law duties to the Plaintiff to take reasonable precautions to guard against foreseeable risk of injury.

87. The Plaintiff contended and it was not disputed that because of the contractual arrangements between the owner of the building and the Defendants, each was an occupier of the premises. The First Defendant was engaged by the owner to be the facilities manager and the Plaintiff asserted, and it was not disputed that this included an obligation to inspect, maintain and repair the premises, which included the loading dock and the Second Defendant was engaged as the property manager of the building which included an obligation to supervise the First Defendant’s performance of that obligation. However, the contractual arrangements for each Defendant limits or places restrictions on their occupation.

88. For example, the First Defendant was obliged to maintain the areas of the building within its remit and repair matters brought to its attention and to provide services in accordance with the various contractual agreements. The Second Defendant was obliged to supervise the First Defendant’s performance of those matters to the extent that the Second Defendant was aware of them. While the terms of the contracts between the First and Second Defendants and the owners of the building limit the extent to which they could be described as “occupiers” of the building, there was no dispute that each was required to exercise their relative responsibilities in relation to the loading dock area.

89. The relevant sections of the Wrongs Act are as follows: 42 Standard of care For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

43 Precautions against risk–general principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person’s position would have taken those precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things): (a) the probability that the harm would happen if precautions were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity creating the risk of harm.

44 Precautions against risk—other principles In a proceeding in relation to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

45 General principles (1) A decision that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’); (b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability). ... 168 Liability of occupiers (1) An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of— (a) the state of the premises; or (b) things done or omitted to be done about the state of the premises. (2) Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following: (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge the occupier has or should have about the likelihood of people or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; (g) the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. ...

90. The interplay between ss 42, 43, 44 and 168 was considered by Master Mossop (as his Honour then was) in Brozinic v ISS Facility Services Australia Ltd [2014] ACTSC 8 at [51] - [52] and concluded that the provisions of Ch 4, in which ss 42 to 44 are included is relevant to assessing whether there had been a breach of duty. His Honour said at [52]: 52. … I proceed on the basis that the provisions of chapter 4 of the Civil Law (Wrongs) Act need to be applied, in addition to s 168, in determining whether or not the second defendant breached its duty of care: s 41. Therefore ss 42, 43 and 44 are relevant to assessing whether or not there has been a breach of the second defendant’s duty of care and the test of causation in s 45 must be applied. What was the risk and was it foreseeable?

91. It is important to bear in mind that the Plaintiff’s evidence of how and where he fell was far from detailed. In his evidence in chief after saying on a couple of occasions that he “tripped and took a tumble” eventually said that he “tripped over on the edge of the manhole, close to the corner on the side where the yellow line was”. Other than saying that he tripped “where it was pretty deep”, the Plaintiff gave no evidence of the difference in height between the surface of the manhole lid and the surrounding surface at that corner. The paucity of his evidence on this point is notwithstanding his return to the loading dock on 4 October 2018 to take photographs of where he said he fell.

92. Equally there is no evidence of what he saw on the day of his fall nor what he saw when he returned.

93. I accept the submission of the Defendants that the photographs do not assist this determination.

94. Certainly the photographs appear to show cracking in and around the manhole lid but, as the Defendants submitted, there is an evidentiary void as to the extent, depth and age of the cracks.

95. The Defendants submitted that in the absence of evidence of the asserted height differentials, two competing considerations arise; that the difference in height was so small as to be not picked up if the area was inspected or that it was so large as to make it obvious to a person walking in the area who was looking out for his own safety.

96. However, in determining whether there was a risk, if it is accepted that there is a height difference between the two surfaces, it would pose a foreseeable risk of harm of someone not noticing the difference in heights tripping and falling. Nor is the risk of a trip and fall not insignificant. Equally the harm that can occur in a trip and fall incident can be serious.

A reasonable response to the risk

97. The submissions of the Defendants and the Plaintiff focussed on the next question which is would a reasonable person in the position of the Defendant have taken precautions against the manifestation of the risk. In considering this question it is necessary to understand that it is not resolved by reasoning from hindsight and to ask what might have been necessary to prevent the Plaintiff’s injury but by considering what would have been the reasonable response to the risk before the Plaintiff’s accident (see Neindorf v Junkovic [2005] HCA 75; 222 ALR 631 at [97] and Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126]).

98. To resolve this issue, one must consider the nature of the loading dock. The evidence establishes that the loading dock area was not one in which it would be contemplated ordinary pedestrians would walk, rather that it was an area in which commercial drivers, such as the Plaintiff and Mr Luyt would come to deliver goods and provide services to the building. Both the Plaintiff and Mr Luyt said that as commercial drivers they had received training about the hazards inherent in loading docks and the need to look around for hazards. Mr Luyt said that in the loading dock there were marked walkways for pedestrians which were provided as a means of avoiding hazards. Equally, Mr Luyt saw the yellow painted areas marking manholes which provided access to the building’s services.

99. The Plaintiff’s counsel submitted that the markings around the perimeter of the loading dock were not necessarily outlining pedestrian walkways, a point not raised either with Mr Luyt or the Plaintiff, and in fact, the Plaintiff’s evidence accepted that a walkway may have been there but he did not have time to look for one. Mr Luyt’s evidence was that they were indicated by the lines on the concrete floor of the loading dock.

100. Further the Plaintiff submitted that it appeared from the photographs that there were lines that may indicate ordinary parking spaces within the area which contained the loading dock in support of a submission that the public could access and park in the loading dock areas. This proposition, that the area made space available for parking of cars was not raised with either the Plaintiff or Mr Luyt and it cannot safely be assumed that there were spaces for general parking or at all.

101. Next it was submitted that there was nothing stopping ordinary pedestrians from entering the area and thus the Defendants had a duty to maintain the area safely for people who did not understand the dangerous nature of the loading dock.

102. I do not accept that submission. True it is that there was apparently no barrier or sign stopping an ordinary pedestrian from wandering in, however, the Defendants were entitled to understand that given the nature and purpose of the loading dock, people using it would be professional drivers and those delivering services who would understand the inherent risks of that space. It was submitted, and the evidence well supports a conclusion that the risk of a pedestrian walking in that area and not heeding the yellow warning signs and ignoring the marked pedestrian walkways, even if that pedestrian was unaware of the other hazards of a loading dock, was extremely low. This is especially so when the area in which the Plaintiff said he fell was delineated with yellow lines and triangles and there is a warning notice on the lid, albeit, directing attention to what was underneath the manhole.

103. The Defendants argued that the risk was extremely low and a reasonable response to it was to do nothing.

104. The evidence established that the Defendants, each in accordance with its contractual obligations had a system of identification of issues requiring repair or attention and the minutes of the regularly held meetings reflect discussion of issues including identified problems and repairs. An audit of all services provided by the First and Second Defendants was commissioned by the owner of the building. In the audit report dated 20 October 2017 the “overall site criteria compliance” was assessed as being 95.9 percent and in relation to the 2018 audit, assessed at 92.3 percent. The Defendants argued that were the systems of identification of and rectification of problems in the building ineffective or inappropriate, the audit report would have identified that.

105. The Plaintiff argued that the photographs showed that the height differential between the lid and the surrounding area had been there for some time and thus ought to have been observed and rectified by the Defendants before the Plaintiff’s accident. The Plaintiff further submitted that the Defendants had not adduced any document relating to an actual inspection of the loading dock area and submitted that the Court would find that there were no inspections of the loading dock area in the time leading up to the Plaintiff’s fall, because had there been, they would have been documented. I note here that the minutes of the meetings between the stakeholders including the First and Second Defendants note that inspections of all areas were done daily or weekly. The Plaintiff submitted that I would reject that evidence and find that it did not happen.

106. There is no basis to reject that evidence, nor indeed to find that the asserted regular inspections did not happen.

107. In the alternative, it was submitted that if the inspections did take place, they were inadequate to detect and remedy the defect. There was no evidence of what a different, more effective system might be and how, if deployed it would have caused the defect to be observed and rectified. A further difficulty attends this submission which is the absence of any evidence which would permit the conclusion about how long the cracking in the lid had been there which, of course is critical to a consideration of the effectiveness of a system of inspection.

108. Thus, given the foregoing, a reasonable response to the risk was to do nothing.

109. If I am incorrect in my conclusion as to liability, it is necessary to first consider the question of contributory negligence.

Contributory Negligence

110. The Plaintiff was well aware of the hazards inherent in a loading dock. He set out, according to him to put rubbish in a bin, not knowing where the bin was and in doing that crossed over an area marked with yellow hazard lines surrounding several manholes. He did not see the yellow lines nor did he see the difference in height between the concrete surrounds and the lid of the manhole. It was not suggested by the Plaintiff that he was not able to see where he was going. The Plaintiff said that he might have been aware of safe pedestrian walkways which would have taken him away from the areas marked by the yellow lines, had he had more time. There was no reason given why he felt pressed for time, however, in the circumstances of his being a professional driver and having driven deliveries before, he would well know the risks in a loading dock, and he did not look for a safe path and in so doing failed to take adequate care for his own safety.

111. I would have assessed the Plaintiff’s contribution to his own injuries as at 50 percent.

112. Again, if I am incorrect in my conclusion as to negligence, I will deal with the question of damages.

Injuries and disabilities

113. Having seen a general practitioner recommended by Toll on the day of his fall, the Plaintiff said that he eventually saw his own general practitioner, Dr Bookallil.

114. The Plaintiff was sent for scans of his right elbow and for his shoulders and head. He was referred to a specialist, Dr Sindy Vrancic, who had performed surgery on the Plaintiff’s right shoulder in about 2011. On Dr Vrancic’s recommendation the Plaintiff had a left shoulder reconstruction in May 2019 which he considered helped him. The surgery was followed by physiotherapy, hydrotherapy and exercises. The Plaintiff said it took a long time to recover from the surgery. His recovery was complicated by the development of a frozen shoulder.

115. He lodged a Workers Compensation claim with Toll who paid for medical expenses and made incapacity payments. The Workers Compensation insurer had the Plaintiff vocationally assessed and the report from the assessment dated December 2020 listed the Plaintiff’s then physical restrictions to which the Plaintiff was taken in examination in chief. He denied that he told the assessor that there were things he could not do, saying that he always tried to do as much as he could and would attempt any task. He said however, that since the accident he is restricted in doing many things such as in lifting, gripping firmly with either hand, in moving either left or right arm, in his ability to perform chores around the house.

116. The Plaintiff said that in the time since the report, his capacity to lift had improved, his grip has improved although he said he experiences cramps in his left hand. He said he had none of these restrictions before the accident.

117. The Plaintiff described his present difficulties. He finds sleeping difficult because of his shoulder locking up when his arm is in particular positions, he does not have a lot of strength in raising his arms above his shoulders, he has pain in his left shoulder around the rotator cuff area and around the top of the biceps.

118. The Plaintiff said that he could not drive a truck professionally because of his injuries and restrictions and because climbing in and out of the truck cab requires him to grip with two hands and use one foot and he cannot safely do that.

119. The Plaintiff said he suffers from headaches and his head shakes when looking at a computer screen which he had to do while still employed by Toll doing light duties.

120. The Plaintiff was shown the Amended Statement of Particulars filed in the case on 29 May 2025, and taken to the list of disabilities set out from paragraph 2.12 of that document. He agreed that the matters particularised reflect his present disabilities. They were said to be: (a) Right shoulder – pain, reduced strength and muscle wasting, supraspinatus tendinopathy, subacromial bursitis and impingement, required steroid injection into right shoulder. (b) Left shoulder – partial thickness, articular side tear in the subscapularis tendon and cortical irregularity, supraspinatus tendinopathy, subacromial bursitis and impingement, underwent surgery, aggravation of a pre-existing left shoulder condition being AC joint degenerative arthritis. (c) Left hand – pain, discomfort, reduced range of movement, reduced strength and paraesthseia to the left hand. (d) Right elbow – pain, discomfort, reduced strength, reduced range of movement and muscle wasting of right elbow. (e) Neck – pain, discomfort, reduced range of movement and reduced strength.

121. The particulars also contend that the Plaintiff has a restriction in his ability to hold, carry, push and pull items with his shoulders and arms of any weight. He is restricted in his ability to move his shoulders in activities such as changing clothes and other activities.

122. It was particularised that the Plaintiff is restricted in obtaining remunerative work, to socialise and maintain relationships with friends and family and in his ability to undertake domestic duties and responsibilities.

123. It was the Plaintiff’s case that, the alleged aggravation of a pre-existing left shoulder complaint and all of these continuing disabilities are directly attributable to the accident on 27 September 2018.

Plaintiff’s pre-existing injuries and physical condition

124. At the commencement of his evidence, the Plaintiff was asked about his state of health before the accident in September 2018 and was asked whether he suffered from any medical conditions that were affecting his overall health and he replied: “No, I was fit - fit as a fiddle”.

125. The Plaintiff said that in 2011 he injured his right shoulder while working at Goodyear Tyre and Auto in which he tore his right bicep and labrum. He said that he had surgery for that injury.

126. The Plaintiff also said that in 2015 he was employed by Home Timber & Hardware and in the course of his work there he hurt his back. He said he did not recall any other injuries and said that after his back injury he received hydrotherapy and physiotherapy and he consulted a surgeon.

127. He was asked: In September 2018, were you suffering from any other disabilities affecting your ability to work as a truck driver for Toll?---No, they loved me because I got it done. And in September 2018, were you suffering from any disabilities affecting your ability to do domestic chores or things around the home?---After September I was. No, before your accident or before the incident?---I - I was pretty strong and willing.

128. The medical records paint a quite different picture.

Right shoulder

129. On 31 January 2011, the Plaintiff was working with Goodyear Tyre and Auto and injured his right shoulder by tearing the bicep and labrum, a ligament in the shoulder joint which contributes to the stability of the shoulder.

130. The Plaintiff was referred to Dr Sindy Vrancic who performed surgery to stabilise his shoulder joint. The accompanying reports indicate that the Plaintiff recovered normally from the surgery.

Thoracic Spine

131. On 10 February 2015 the Plaintiff reported an injury to his thoracic spine while working at Home Timber & Hardware. Dr Wallace, an Orthopaedic surgeon, prepared a report for the purposes of Workers Compensation dated 25 May 2015 noting that at the date of the report the Plaintiff had been referred to a neurosurgeon, Dr Ow-Yang.

132. Dr Ow-Yang diagnosed the Plaintiff with chronic pain syndrome.

133. Dr Wallace records that the Plaintiff complained of persisting pain at the thoracic spine made worse by prolonged activity. He was working on light duties with lifting restrictions. The report noted the Plaintiff’s history that he had restrictions in dressing himself and that his sleep is disturbed by pain. He has difficulty getting in and out of cars.

134. Dr Wallace noted that an MRI did not show acute pathology at the thoracic spine. He thought the Plaintiff was exaggerating his functional disability.

Left Shoulder

135. On 30 September 2015 the Plaintiff again was injured while working light duties at Home Timber & Hardware. The injury report said he was pushing a bundle of timber battens onto a forklift when he felt a sharp pain in his left shoulder.

136. An MRI of his shoulder was conducted and the report noted subdeltoid bursitis.

137. Rehabilitation reports prepared for the Workers Compensation insurer in relation to the 2015 injuries note at the date of report, April 2016, that the Plaintiff complained of no improvement in his thoraco-lumbar spine symptoms with discomfort radiating towards his cervical spine in both directions. He said that the pain was constant being five to six out of ten at best and eight to ten out of ten at worst. He also complained of pain in the front of his left shoulder with abduction and flexion movement.

138. At this point, the report noted that the Plaintiff was using narcotic analgesia in the form of Norspan patches of 15mg and while their effect was intended to last for seven days, the Plaintiff said that they were only effective for three days. The Plaintiff was attending physiotherapy and undertaking exercises.

139. On 9 May 2016 the Plaintiff’s general practitioner referred him to Dr Romil Jain, a pain specialist. The referral noted that despite physiotherapy the Plaintiff has severe subjective pain all over his back and “now complains of low back pain too”. The referral notes that the Plaintiff has been “badgering” the doctor to increase the present prescription for Norspan to 20mg.

140. On 11 May 2016 a patient information questionnaire was completed for the Pain Management Unit. The form included a diagram of a human body and required the person completing the form to indicate where their “main pain” is and to shade the area to which the pain spreads. That diagram shows pain at the front and back of the left shoulder, down the spine from the shoulder blades to the top of the buttocks and a line going most of the way down the left leg and halfway down the right leg. The Plaintiff said he did not remember filling in that diagram.

141. On that form, various words to describe the person’s pain were set out and, on the form the following words were underlined: throbbing, shooting, stabbing, sharp, pinching, pulling, burning, tingling, sore, sickening and tight. The Plaintiff said he did not recall filling in that form.

142. Altius Rehabilitation Services conducted regular assessments of the Plaintiff and provided reports based on those assessments to the Workers Compensation Insurer. The report of 3 November 2016, which appears to be the last assessment report, noted that the Plaintiff had a capacity for some type of employment of two hours per day and three days per week.

143. The report noted that he was not to lift his arm above shoulder height, not to lift more than 5kg with his left arm and 7.5kg with his right. He was advised not to stand or sit still for more than half an hour and not to move his arm repetitively for more than 30 minutes.

144. The report noted the Plaintiff’s then present symptoms were unchanged from previous reports although he said his thoracic spine symptoms were worsening. He said he experienced “constant, deep discomfort” that radiates inferiorly to his lumbar spine. The discomfort is increased by prolonged standing, sitting or walking and is approximately ten out of ten and that resting and using Norspan 15mg patches help to decrease symptoms but only gives him short term relief. The Plaintiff told the assessor that he continues to have difficulty with prolonged sitting, standing and walking and in performing tasks involving bending forward and flexion. He can attend to self-care and domestic duties.

145. On 18 January 2018 the Plaintiff attended a general practitioner at the Hobart Place Medical Centre, Dr Kraus, not his regular general practitioner who was Dr Marianne Bookalil. In a letter to Dr Bookalil, Dr Kraus noted that the Plaintiff’s job had been terminated and he had to find a new truck driving job and noted: “Says his sleep is troubled and taking one to two Temaze a day[.] He asked for Val[i]um but I thought this was not a good idea at the moment”. She provided him with his “routine scripts”, including Targin 5mg, Norspan 10mg and temazepam 10mg.

146. I note that Targin and Norspan are both narcotic analgesics.

147. Dr Bookalil referred the Plaintiff to a psychologist for opinion and management of his depression and anxiety and she referred to recent stressors in his life including chronic pain. She noted that his usual medication included Norspan 10mg and temazepam 10mg.

148. The surgery records for the Hobart Place Medical Centre show prescription of Norspan, Targin and temazepam on 23 February 2018.

149. On 14 September 2018 the Plaintiff attended a general practitioner, Dr Gill, in relation to some skin conditions and her consultation notes show that she prescribed Norspan and Targin for the Plaintiff at that time.

150. Thus it is clear that as recently as two weeks before the accident, the Plaintiff was still receiving significant doses of narcotic analgesia and was described by Dr Bookalil in January of that year as suffering from chronic pain. The rehabilitation reports, albeit to November 2016, note the Plaintiff complaining of unremitting pain and restrictions.

151. Counsel for the Defendants submitted and I accept that the inference to be drawn from these notes is that for years leading up to the accident in September 2018, the Plaintiff had been suffering from intractable pain from his earlier injuries.

152. Dr Sabetghadam’s review of the Plaintiff’s medical records notes that throughout 2017, the Plaintiff attended the Pain Clinic in relation to his back pain.

153. The Plaintiff completed a Pre-Employment Health Disclosure Form to work for Toll which was signed off by a Toll office member on 12 September 2018. The application form asked questions about the Plaintiff’s health and any relevant medical conditions. Where a particular matter was noted, the form invited an explanation: the Plaintiff identified an injury to his right shoulder and to his back and wrote: Shoulder op 7 years ago – tear 1 bicep – workplace physio 2 times a week – 3 months Back strain – workplace, physio, once a week.

154. The form asked: “Do you have any health problems that could affect your ability to perform this job?” and “[d]o you have any difficulty lifting weights?”

155. To both of these questions the Plaintiff answered “no”.

156. The Plaintiff made no mention of the left shoulder injury suffered in 2015. In the hearing he was asked: Do you remember on 1 October 2015 you were working in light duties at 20 Home Timber & Hardware, where you injured yourself?---I don't remember. Do you remember making a second workers compensation claim in 2015 in respect of an injury you sustained at work, Mr Prichard?---No. … Do you remember on that day, September 2015, that you were pushing a bundle of timber battens on a forklift, when you felt a sharp pain in your left shoulder?---Well, why would I push anything on a forklift?

157. In short, the Plaintiff denied any recollection of having injured his shoulder while working at Home Timber & Hardware nor of completing an accident form in relation to it.

158. The Plaintiff’s left shoulder injury was reported by him to his supervisor and the person with whom the Plaintiff was working at the time of the injury made a report dated 1 October 2015 to the effect that the Plaintiff came to where the witness, Jake Czaplinski, was working and assisted him by lifting and sliding battens onto the tines of a forklift. Mr Czaplinski said shortly after giving him that assistance, the Plaintiff complained of a stabbing pain in his left shoulder.

159. The Plaintiff was taken to a consultation with Dr Shelley Gill on 13 September 2017 at the Hobart Place Medical Centre, and he was asked the following: Yes, that you also complained of left shoulder pain, that you had bursitis in your left shoulder and that you'd had a Thai massage but that masseur had torn your shoulder. Do you remember telling that to Dr Gill?---No. You asked whether you should sue the masseuse?---Good on you. Do you remember that?---No. Was it true?---No. But it was true that you still had shoulder pain as at 13 September 2017, correct?---No. What - - She examined you and told you that you appeared to have an impingement syndrome in your left shoulder, do you remember her telling you that?---No. And that she recommended you have an ultrasound of your shoulder and a steroid injection, do you remember that?---Is - is that right, is it? So that's almost two years after the injury to your shoulder on 30 September 2015 that you were still complaining of significant pain and restriction of movement in the left shoulder, correct?---No. And you were prescribed on that day Targin 5 milligram, that's right, isn't it?---I don't know. And you continued to fill prescriptions of Targin from doctors at the Hobart Place General Practice right up until 14 September 2018. That's correct, isn't it?---I don't know. And that was because you had persistent pain in your left shoulder correct?---No.

160. The medical and other records demonstrate that the Plaintiff suffered an injury to his left shoulder while working doing light duties at Home Timber & Hardware in 2015, that it was reported and, as a result he underwent investigations and treatment, including the prescription of narcotic analgesia in the form of Targin.

161. The Plaintiff was arrested in April 2021 and imprisoned, he said that during that arrest he was struck on the head by the arresting officers causing him to lose consciousness. In his evidence, the Plaintiff denied he had claimed that the arresting officers treated him so roughly it “wrecked his shoulders” and that they handcuffed his hands in the front of his body and made him “skip rope” over the handcuffs. In a telephone call from prison to a friend on 1 June 2021, the Plaintiff said “… and [they] fucking tore my shoulders and broke my wrists and hand … ” and further said “… they fucked up all my fucking operation up, big time, they tore my fucking rotator cuff …” When this conversation was put to the Plaintiff, he said he could not remember.

The Plaintiff’s present medical conditions and physical restrictions

162. The Plaintiff was examined by a number of doctors for the purposes of obtaining reports for the hearing. To a number of those he reported that before the accident in September 2018 he had no physical issues relating to his back, neck or shoulders and to other examiners, the Plaintiff made no reference to the 2015 injury to his left shoulder and in his examination by Dr Shahzad made no reference either to the 2015 back or shoulder injuries. To the extent that the experts based their opinions on incomplete accounts of the Plaintiff’s previous injuries and disabilities, the opinions must attract less weight than those based on a complete account of the Plaintiff’s previous conditions.

Dr Vrancic

163. Dr Vrancic who had previously operated on the Plaintiff’s right shoulder in 2011 saw the Plaintiff following the September 2018 accident. Having considered MRI findings, Dr Vrancic in her report of 21 February 2019 said that the Plaintiff had a rotator cuff tear with bursitis in his left shoulder and post traumatic bursitis in his right. She said he had bilateral shoulder pain and weakness secondary to his workplace injury.

164. In relation to his right shoulder, Dr Vrancic said he recovered to pre-injury functioning after the first surgery in 2011. Dr Vrancic said that before the September 2018 accident, the Plaintiff had no issues with either shoulder nor was there any suggestion of pre-existing conditions that have contributed to his current symptoms.

165. Dr Vrancic performed surgery on the Plaintiff’s left shoulder repairing the rotator cuff and biceps tenodesis. In a report dated 27 January 2020 she noted that the Plaintiff had not attended follow up appointments with her and said that his failure to attend was part of his “less than optimal participation in his rehabilitation program”. She observed that he had not participated in any aspect of his rehabilitation.

166. There is no indication in Dr Vrancic’s reports that she was aware of the Plaintiff’s injury to his left shoulder in 2015 and her report makes it clear that she believed that before the accident in September 2018 the Plaintiff had no issues with either shoulder nor any previous injury to his left.

Dr Powell

167. The Plaintiff also saw Dr Powell who prepared a report for the First Defendant dated 25 March 2019. When recording the Plaintiff’s past history, Dr Powell refers only to the 2011 right shoulder injury and the 2015 back injury although it seems from his report that he was aware of the 2015 left shoulder injury because it is mentioned.

168. Dr Powell’s opinion was that the Plaintiff suffers from “impingement syndrome” in his right shoulder consequent of his earlier SLAP repair by Dr Vrancic. Dr Powell thought that the Plaintiff’s present symptoms in the right shoulder were consistent with mild impingement syndrome.

169. Dr Powell noted that the Plaintiff had a rotator cuff tear of the left shoulder with features of impingement and bicipital pathology. Dr Powell noted that the Plaintiff had a soft tissue injury involving the left shoulder in 2015 which resolved with conservative treatment. He said that investigations reveal underlying rotator cuff degeneration and some AC joint degeneration likely to pre-exist the 2018 accident and which had been asymptomatic.

170. Overall Dr Powell thought that the reported accident contributed to the development of the current bilateral shoulder injuries.

171. Dr Powell reviewed the Plaintiff and reported on 1 April 2020. He noted that both shoulders are symptomatic and the surgery on his left shoulder was complicated by the development of a frozen shoulder.

172. Dr Powell considered the Plaintiff had the capacity for work avoiding activities that involved repetitive use of the upper limbs particularly the arm away from the body or above shoulder height.

173. On 26 March 2021 Dr Powell reported on his review of the Plaintiff. Dr Powell noted that the Plaintiff said his right shoulder symptoms had improved although it remains symptomatic and the left shoulder symptoms are more severe.

174. On 31 January 2023, Dr Powell reported on his examination of the Plaintiff and given the injury to his left shoulder in the past, Dr Powell considered that the aggravation of the Plaintiff’s pre-existing condition caused by the accident in 2018 continued and Dr Powell considered that there may have been some deterioration in the condition of both shoulders since his last examination of the Plaintiff.

175. Dr Powell noted that the Plaintiff had not complained of cervical spine symptoms and, in his opinion, the Plaintiff did not suffer any injury to his spine because of the accident. He opined that current symptoms might be due to some secondary postural issues.

Dr Doig

176. Dr Doig examined the Plaintiff at the request of his solicitors. In his report of 20 July 2022 when recording the Plaintiff’s history, Dr Doig makes no mention of either injury incurred by the Plaintiff in 2015. In his report he comments that the Plaintiff appears to have a “new injury” to his left shoulder.

Dr Shahzad

177. Dr Shahzad, an occupational physician, examined the Plaintiff on behalf of his lawyers. In his report dated 13 July 2022, Dr Shahzad concluded that the Plaintiff was unable to return to work as a truck driver and is at high risk of further aggravation or recurrence of the injury and symptoms. In his opinion the Plaintiff could not lift himself up into the cabin or drive because of the shoulder surgery. His current restrictions as identified by Dr Shahzad are no heavy lifting, pulling or pushing more than 5kg, avoid above shoulder level activity and he is able to work part time only. There is no mention in the report of the 2015 injuries.

Associate Professor Miniter

178. The Plaintiff was also examined by Associate Professor Miniter, an orthopaedic surgeon, on behalf of the Defendants. Dr Miniter’s report is dated 11 August 2023. In recounting the Plaintiff’s history, Dr Miniter said that the Plaintiff told him about the injury in 2011 saying that he had made a full recovery. Although not mentioned by the Plaintiff, Dr Miniter raised the Plaintiff’s 2015 shoulder injury about which the Plaintiff said he had no recollection.

179. The Plaintiff told Dr Miniter that he believed he was incapable of returning to work. In Dr Miniter’s opinion there is no reason why the Plaintiff cannot return to work and he said that the only restrictions placed on the Plaintiff would be to avoid repetitive shoulder actions above or at shoulder level.

180. Dr Miniter was further of the opinion that the Plaintiff did not injure his left shoulder in the accident in 2018 and said that the Plaintiff’s complaints of pain are as a result of pre-existing issues in both shoulders and no clear evidence of any injury to either shoulder in the accident. Dr Miniter noted that there was “significant inconsistency” between the investigation findings and his physical examination of the Plaintiff.

Dr Sabetghadam

181. The Plaintiff was also examined by Dr Sabetghadam, an occupational physician, on behalf of the Defendants. His report is dated 23 August 2023. In relation to the Plaintiff’s account of how he fell, Dr Sabetghadam noted what he regarded to be an apparent discrepancy in how his left shoulder became injured and he said: Particularly, in cases where there is a pre-existing right shoulder labrum tear and surgery, the expected impact of the fall, involving the right hand or right elbow making initial contact, would likely result in a significant injury to the right shoulder rather than the left.

182. In terms of his present condition, the Plaintiff told Dr Sabetghadam that he experiences pain on both sides of his neck, more on the right than the left and a pinching sensation in the nerves from his trapezius to the back of his neck. He said he had right and left shoulder pain which “comes and goes”.

183. Dr Sabetghadam reviewed the Plaintiff’s scans and investigations over the years. The report notes that throughout 2017 the Plaintiff attended the Canberra Hospital Pain clinic for back pain.

184. In October 2018 a scan was done on the Plaintiff’s right elbow which showed no apparent abnormality but observed that if there was ongoing concern about an occult fracture, a CT may be warranted.

185. In terms of limitation in daily activities, the Plaintiff told Dr Sabetghadam that he does some cleaning and gardening for his mother, cooks and attends to the grocery shopping. He still experiences backpain but at the date of the assessment said he had no issues with his right shoulder.

186. On examination, Dr Sabetghadam noted that the Plaintiff’s hands were callused consistent with someone accustomed to working on rigid surfaces. He had symmetrical range of motion in both shoulders and noted “suboptimal effort and inconsistency between formal and informal examination”.

187. Dr Sabetghadam said that the Plaintiff’s description of the accident was vague and inconsistent as was his description of his disabilities and injuries. Dr Sabetghadam noted that the Plaintiff did not disclose the 2015 shoulder injury.

188. He concluded that the Plaintiff: [d]id not sustain a substantial traumatic injury as a result of the fall. Although he fell on the right side of his body on the specific day, he subsequently reported an injury to his left shoulder. The biomechanics and forces he described seem highly improbable as causes for a significant injury like a SLAP tear in the left shoulder.

189. Dr Sabetghadam considered that the conditions of the Plaintiff’s right and left shoulder and lower back were probably pre-existing and irrelevant to the accident. He thought that the Plaintiff probably had a temporary exacerbation of the symptoms of the underlying medical conditions for a short time after the accident.

190. Further, he considered that the surgery to the Plaintiff’s left shoulder was probably required regardless of the consequences of the fall which he said was “highly unlikely to contribute to significant trauma to his left shoulder”. He noted that the investigations of the Plaintiff’s left shoulder immediately after the accident reported pre-existing conditions and he noted that the Plaintiff complained of left shoulder pain before the accident. The doctor posited that at around the time of the fall, the Plaintiff could have been developing left shoulder adhesive capsulitis because of his diabetes which can manifest in the non-dominant shoulder.

191. As to the genuineness of the Plaintiff’s complaints, Dr Sabetghadam said that there was a substantial disparity between his formal and informal examinations of the Plaintiff including the indications of the palms of his hands pointing to someone who frequently worked with hard surfaces. The Plaintiff’s well defined musculoskeletal structure in the deltoid and biceps did not align with indications of significant impairment or disability. However, he considered it probable that the Plaintiff had a transient exacerbation of subjective symptoms in both shoulders. He also said that the Plaintiff has a capacity for work and any restrictions because of his shoulders are unrelated to the accident but are of a constitutional nature.

192. Neither Dr Sabetghadam nor any of the other medical experts, was required for cross-examination.

193. Before the accident in 2018 the documents make it clear that the Plaintiff had sustained injury to his right shoulder in 2011 and his back and left shoulder in 2015. As I have indicated, the Plaintiff did not apparently inform each doctor who examined him of each injury, thus leading to Dr Doig, concluding that the injury to his left shoulder was “new”.

194. The objective material leads to a conclusion that before the 2018 accident the Plaintiff complained of symptoms and functional restrictions relating to each of the injuries to his back, right and left shoulders. He was being consistently prescribed quantities of narcotic analgesia and was attending a pain clinic for ongoing back pain.

195. On the whole of the evidence, it is probable that when the Plaintiff fell over in the loading dock area, he caused an exacerbation of his shoulder symptoms. The evidence does not support the fall to be causative of his injuries.

196. As to the Plaintiff’s asserted functional limitations, again the evidence does not support a finding that any limitations he does have arisen from the fall.

197. The medical assessments of the Plaintiff’s physical restrictions do not appear to correlate with other evidence of the Plaintiff’s physical capacity. For example, in about April 2021 the Plaintiff was arrested and imprisoned for a period of about three months over two periods in 2021.

198. While in prison his telephone calls were recorded. He was cross-examined on those conversations.

199. The Plaintiff was asked about a conversation in May 2021 about working for Sydney Tools in Lismore in which he said: look, I'm supposed to be fucken 2 IC of fucken Sydney Tools in Lismore in a week.

200. He was asked: … Do you remember telling your friend Nick Stuart that?---No, but I - I did try and get a job with them. In fact you said you were going to start 'on fucking 70 or 80 grand'?---Did I? That would have been great. Is that true, Mr Prichard?---I don't know. Is it?

201. When it was suggested to the Plaintiff that the only conclusion that could be drawn from that conversation was that he had lined up a job with Sydney Tools as at May 2021 to which the Plaintiff replied: So what? I was trying to help myself get back into the workforce. What’s wrong with that?

202. The Plaintiff agreed that the job to which he was referring was the kind of work he could do and said that when he was released from prison, that opportunity had “dried up”.

203. In another conversation, the Plaintiff said to a friend apropos an apparent application for bail: Alright, well yeah, because I wanted to go back to work, straight, you know, [stutters] I was pretty much getting ready to go to work and fucken the cops fucked my shoulders again but I've been doing weights and shit in here.

204. The Plaintiff was asked whether he was lifting weights in prison and he said: Yes. I had to lift my food tray.

205. When taken to a later part in that conversation in which he told his friend that he “did 105 on the bench press yesterday” to which his friend replied “[t]hat’s good. man. Get your shoulders back into it” to which the Plaintiff replied “[y]es. Fucking oath”, the Plaintiff’s response was both vulgar and non-responsive.

206. There were many such conversations in which the Plaintiff told friends that he was working on his pectorals and shoulders and getting stronger. It was put to him: What you were suggesting in this conversation was, that you were going to continue exercising particularly doing your shoulder presses so you could make your arms larger and lose weight. Correct?---That wouldn't be a bad thing.

207. In re-examination, the Plaintiff said that these conversations were not, in fact true, but were lies told, it seems in the context of being in prison. Quite why saying to friends that he was working out, using a boxing bag and lifting weights carried any cachet in prison was not explored and in any event, the context and content of the conversations are persuasive that at this time the Plaintiff was working out and lifting heavy weights in order to become fitter and stronger and clearly lifting weights heavier than those advised by the doctors who examined him.

208. The Plaintiff denied that at that time he was physically able to drive heavy rigs or dump trucks although a conversation records the Plaintiff asking a friend about him getting work driving heavy rigs and the Plaintiff said: How much do you get paid to do that?

209. To which his friend replies, Well, so its, like first year, I think you’re like $40 and after that you like it can become $45 to $65.

210. The Plaintiff replied: Okay. Because I’ve got HR, non-synchro, forklift, white card … I’ve got a New South Wales licence …

211. When further questioned about this conversation, the Plaintiff said he was probably telling lies, again, why he would tell lies to friends in a phone call was not explained and, in my view cannot be explained by the prison environment and, as the Plaintiff said it was because of “hanging around a whole bunch of bullshitters”.

212. While the Plaintiff denied he was working as a welder for his friend Mr Andy Stodulka, he said that he attended his metal founding factory often but to make things for his own use and occasionally helped out Mr Stodulka.

213. A note by a drug and alcohol counsellor who was seeing the Plaintiff dated 10 November 2021 referred to him starting work as a metal fabricator and the report noted that he likes the work but finds it difficult to get out of bed in the morning to go to work.

214. The Plaintiff continued to see Dr Schmidli, his endocrinologist on his release from prison who noted at a consultation on 22 March 2022: “… now metal founder – learning, nat talent”. Dr Schmidli reported the outcome of the consultation to Dr Bookalil and in that referred to the Plaintiff “training as a “Metal Founder” and is enjoying this very much”.

215. The Plaintiff presented to Calvary Public Hospital and was issued with a medical certificate that he was unfit for work between 12 and either 17 or 19 April 2022 (the date on the document is hard to decipher). The Plaintiff denied that he was working at the time the certificate was provided to him.

216. On 25 July 2022 the Plaintiff again went to Calvary Hospital emergency with burns to his arm and face and complained about having difficulty breathing. The recorded history notes that the Plaintiff was “welding under car and reports fuel tank exploded onto his face”.

217. On 16 September 2022 a worker from the Canberra Health Services Mental Health visited the Plaintiff’s mother’s house wanting to speak to him. The worker noted that she spoke to the Plaintiff’s mother at the door who had attempted to have the Plaintiff get out of bed to speak to the worker without success. The Plaintiff’s mother told the worker that she would be taking the Plaintiff to work later in the day and suggested they call in the afternoon. She said that his work schedule varies and he sometimes works on weekends if they need additional staff. She said he works for a metal manufacturer.

218. The Plaintiff denied the truth of each of these recorded notes and denied he was working for Mr Stodulka.

219. The Plaintiff’s mother Ms Joella Sanson said that she would drive the Plaintiff to Mr Stodulka’s factory several days each week and said that sometimes she saw what the Plaintiff did, which was assisting Mr Stodulka, but she did not say in what way he assisted.

220. Mr Stodulka was not called to give evidence and the Defendants submitted that the failure to call him would more readily enable the Court to conclude that notwithstanding the Plaintiff’s denial, he was, in fact working for Mr Stodulka, The Plaintiff submitted that there is no evidence of the receipt of wages by the Plaintiff for any work done for Mr Stodulka and so it could not be demonstrated that he was working. Whether or not there is evidence of the Plaintiff being paid does not cause me to conclude that he was not working.

221. The evidence persuades me that the Plaintiff was indeed working for Mr Stodulka doing welding which included, as the hospital notes record, lying underneath a car and welding above his head.

222. Whatever the Plaintiff’s doctors had advised as to his functional capacity, the evidence satisfies me that he was able to work and lift weights greater than advised and the observations of Dr Sabetghadam of the calluses on the Plaintiff’s hands, his well-developed and symmetrical musculature also supports the conclusion that he does not have the physical limitations and restrictions he claims resulted from the accident.

223. It is probable that the fall in the loading dock caused a temporary exacerbation of the Plaintiff’s pre-existing injuries. Given the evidence of the Plaintiff’s own account of his fitness while in prison in April to June 2021, it is probable that any exacerbation had settled around that time. The general damages then to be awarded would be limited to a consideration of that period, and would in my view amount to no more than in the order of $25,000 together with interest to be calculated on 60 percent of that sum. Economic Loss

224. The Plaintiff’s employment with Toll was terminated in April 2021 because he was permanently unable to perform the work as a driver. He said he had not received any income from employment since that time.

225. The Plaintiff said that he would have liked to obtain other employment but could not obtain funding to pay for the courses he wanted to do, being, TIG welding, a silica course and an asbestos course which would equip him with the skills to find new employment. He also needed to renew his forklift licence which lapsed but funds were not available to him by Centrelink nor would the Workers Compensation insurer make funds available to him.

226. The Plaintiff stopped receiving Workers Compensation payments towards his medical expenses in August 2021 and since then he has not been able to have the physiotherapy and other treatments that he would like.

227. Although his job network provider had helped him apply for jobs, he has not been successful. He said that he is not reliable and he “pays for what he does afterwards” which I take to mean that he experiences pain or discomfort as a result of the physical activity. He also said he found it hard to get out of bed because he experiences depression. (I note here that while the claim for damages includes damages for psychiatric injury, that was not pressed during the hearing and no evidence was tendered in relation to it.)

228. The Plaintiff’s assertions of being incapable of working were directly contradicted by his phone conversations while he was in prison, by his assertions to various doctors that he was working as a welder and the evidence that he went often each week to Mr Stodulka’s factory and Dr Sabetghadam’s observations of his callused hands and symmetrical musculature. To the extent that the Plaintiff said his physical limitations provided a barrier to being employed, that evidence is contradicted by his conversations in prison about lifting weights and increasing the strength in his shoulders and arms.

229. The Plaintiff’s evidence about his work history before the fall is sketchy and there is no evidence of how long he was employed in any of the previous occupations he nominated, such as working as a security guard, working at the Home Timber & Hardware and the like. There were periods in which the Plaintiff’s earning capacity was impacted by reasons unrelated to his injuries, for example when he was imprisoned and when his driver’s licence was suspended on his being convicted of driving under the influence of drugs.

230. Equally, there is virtually no evidence of what the Plaintiff was earning in the period up to his employment with Toll or what his earning capacity was before the fall in September 2018. In the period he was employed by Toll, the Plaintiff earned $884 per week. The Plaintiff claims 50 percent of that figure over 24 years, his working life, as future economic loss.

231. I do not accept that the Plaintiff is incapable of working nor do I accept that his fall caused or contributed to any loss of income, except perhaps for the period up until he went to prison in April 2021 when it may be that the effects of the exacerbation of his pre-existing injuries affected his capacity to work.

232. The limited evidence is such that were damages for past and future economic loss to be awarded, it would be in the nature of modest buffers, such as $5,000 for the past and $25,000 for the future.

Domestic Assistance

233. At the time of the accident, the Plaintiff was living with his partner and four children, three of whom were from his partner’s previous relationship and one child was from the Plaintiff’s previous relationship. That relationship ended in about April 2021. This was also the time in which the Plaintiff was first taken into custody.

234. The Plaintiff said he did not think he had any disabilities or impairments which stopped him from contributing to the running of the household. The Plaintiff said that before his accident he contributed to the running of the household with his partner, cooking together and involving the children. Equally any home maintenance tasks were shared.

235. After his fall and up until he and the partner separated, the Plaintiff said that she gave him considerable assistance. He said that after he was injured his arm was in a sling and she assisted him in getting into a comfortable position. He said he slept in a chair. He could not estimate the number of hours his partner spent assisting him. It seems that his partner did all of the domestic and family tasks because the Plaintiff was unable to assist.

236. After he and the partner separated, the Plaintiff said that he moved around living at different places, sometimes in shared houses other times in hostels.

237. He moved in to live with his mother in about September 2021 after he had been released from prison. He said given his injuries, his mother gave him considerable assistance, cooking and cleaning, doing the shopping and driving him around. She did the washing for him.

238. The Plaintiff’s mother, Joella Sanson, gave evidence about the assistance she gave him. She said that up to and after the Plaintiff’s injury she saw him several times a week “as required”. While he was living with his ex-partner, Ms Sanson said that he needed her support for several hours a day, between two and six hours depending on whether his partner was there or not. She said the assistance she gave him included assisting him to shower and dress, she would also cook and generally tidy up the house. She said that at this time the Plaintiff was living with his partner and the four children together and the assistance she gave in cooking, washing and cleaning up was for the benefit of the whole household.

239. After the Plaintiff and his partner’s relationship ended, Ms Sanson said that she went every day to where the Plaintiff was living and spent as much as six hours each day assisting him.

240. The Plaintiff moved in and lived with his mother after he was released from prison and in that time he said she did nearly all of the domestic tasks and Ms Sanson estimated she spent about six hours each day doing this. She said that the Plaintiff did what he could to help. In her evidence about how she assisted the Plaintiff, Ms Sanson said that a considerable amount of time was spent in meal preparation that she said could take hours and hours and involve the preparation of a number of dishes. Equally, Ms Sanson said that she washed her and the Plaintiff’s towels every day, separately from each other, and he could not lift a wet bath sheet to the line because it weighed more than 5kg. Further she said that the Plaintiff living with her caused her more cleaning because of the products he used which created more soap scum that needed to be cleaned away.

241. It is tolerably clear that however many hours Ms Sanson spent cooking and washing individual towels, it cannot rationally be because of the Plaintiff’s needs for assistance. It is also pertinent to observe that at the time that she said the Plaintiff was unable to lift a wet bath sheet onto the clothesline, he was working at Mr Stodulka’s welding factory, to which she drove the Plaintiff.

242. If, as a result of his fall, the Plaintiff required domestic help, the evidence of he and his mother does not permit of an assessment of what he did require or what was provided or whether it was reasonable.

243. No damages for domestic assistance would be awarded because the Plaintiff has not demonstrated a need for the provision of those services.

244. However, for the reasons already given, I do not accept that the Plaintiff fell as he alleged nor that he has established any liability for negligence on behalf of either Defendant. Orders

245. For these reasons, I make the following orders: (1) There will be a verdict for the First and Second Defendants against the plaintiff. (2) The Plaintiff will be ordered to pay their costs of and incidental to the proceedings to be agreed or assessed.

I certify that the preceding two-hundred and forty-five [245] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ainslie-Wallace. Associate: Date: