Raad v VM & KTP Holdings Pty Ltd as Trustee for VM & KTP Nguyen Family Trust

Supreme Court of NSW|2015-10-30|Before: Davies J

Solicitors: P K Simpson & Co. Pty Limited (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2013/144125

Judgment

The Plaintiff was injured when he slipped on tiles at the rear of the Busby Shopping Village in Busby on 13 June 2011. At the time of the fall it was raining and the tiles were wet.
The Plaintiff fell onto his back and sustained an undoubted injury to the T3 and T5 levels of his thoracic spine. The Plaintiff claims now to have suffered permanent injuries from the fall which, amongst other problems, means that he has been, and will continue to be, unable to work.
Liability was in issue with matters of obvious risk and contributory negligence being relevant.
A significant issue in the case was the extent of the Plaintiff's injuries and disabilities arising from the accident because the evidence suggested that the Plaintiff continues to experience pain, restriction and discomfort, although the extent to which this is functional rather than physical was a further consideration.
A subsidiary issue on damages related to the Plaintiff's immigration status in Australia including his right to work since he first came to Australia and the likelihood or otherwise that he will be required to leave Australia arising, in the first instance, from a divorce from the woman who enabled him to have a spousal visa. In relation to his immigration status the parties agreed on a number of facts which form part of the narrative that follows. I have indicated each instance of an agreed fact.

Background of the Plaintiff

The Plaintiff was born on 1 January 1974 in Lebanon (agreed). He was one of a number of children. His older brother Mouaffak moved to Australia in April 1996. He worked as an electrician in Lebanon and shortly after his arrival in Australia he and another person, George Abouni, established a business as electricians through a company Suncorp Electrical Pty Ltd.
Although the Plaintiff attended school in Lebanon he never learnt to read or write in Arabic. He left school at the age of 14 or 15 years and worked as a labourer and a cement renderer.
On 20 September 2004 the Plaintiff applied for a Class TO, sub-class prospective marriage visa with the Australian embassy in Lebanon. He was sponsored by Ms Nahida Sultan, an Australian citizen. On 2 April 2005 the application was approved and the Plaintiff was granted a sub-class 300 prospective marriage visa (agreed) which permitted him to stay in Australia until 2 January 2006 with full work rights. He arrived in Australia on 22 April 2005.
When the Plaintiff first arrived in Australia he worked as a cement renderer for a short period of time and thereafter he obtained employment with his brother's company as a labourer. The work was said to involve dragging, hammering, heavy lifting and heavy manual handling. The Plaintiff worked for his brother's company until the date of the accident.
On 13 September 2005 he was married to Ms Sultan (agreed). On 14 November 2005 he made a combined application sponsored by Ms Sultan for the following visas: (1) Partner (temporary) (class UK) - subclass 820 partner (provisional) visa; (2) Partner (residence) (class UK) - subclass 801 partner (permanent) visa.
As a result of applying for a combined partner visa he was given a subclass 010 bridging A visa that commenced operation on 23 January 2006 when his subclass 300 visa expired. The bridging A visa allowed an unrestricted right to work.
The marriage appears to have broken down during late 2006 although attempts were made between October 2006 and August 2007 to rectify the problems in the relationship. However, on 22 August 2007 Ms Sultan withdrew her support/sponsorship from the partner visa. She advised the Department that their marriage had been "religiously and culturally annulled". On 24 December 2009 the Plaintiff was advised that his partner visa was refused as his marriage had ended (agreed). On 8 October 2010, the Plaintiff was declared unlawful by the Department of Immigration (agreed).
On 10 October 2014 the Department of Immigration realised an administrative error had been made in 2009 when it advised that he was unlawfully in Australia. It advised that he continued to hold a subclass 010 bridging A visa connected with the subclass 801 visa application made on 14 November 2005(agreed).

The accident

On 13 June 2011 at approximately 2:50pm the Plaintiff drove his car to the rear of the Busby Shopping Village and parked it. He was intending to go to the butcher's shop which was at the left hand end of the shopping centre as the Plaintiff faced the building having alighted from his car. He ran from his car from the car park area through an entrance to a tiled area that adjoined the back of the shopping centre. The part of the tiled area on which the Plaintiff fell had no covering over it. The Plaintiff claimed that he slipped and fell at a point about a metre or a metre and a half onto the tiled area. He agreed that he had taken one step onto the tiles and it was when he was taking the second step that his feet went from under him and he fell onto his back.
He was apparently helped up by some other persons who were present and he was assisted to a Medical Centre which was within the shopping centre about 10 metres or so to the right of where he fell.
The Plaintiff was seen by Dr Raymond Siao at the medical centre. Dr Siao reported that: He was clinically found to show no sign of significant soft tissue injury at the site of his claimed upper back pain. He denied tenderness on firm palpation of the spines processes of the vertical column at the area of claimed pain. Ribcage springing test was again claimed to be not painful. There was nil obvious neurological deficit noted on gross assessment and the patient was able to walk into and out of the surgery albeit with what appears to be a dramatic amthalgic gait.
The doctor advised him to go to the local hospital for assessment because it was a public holiday and the doctor was unable to organise any radiological investigation immediately. The Plaintiff was offered transport via ambulance but he refused the ambulance and was taken home by his brother who attended.
The Plaintiff claims that he suffered various injuries to his back, neck, legs, hips, arms and shoulders in the fall and said also that he had suffered a psychological injury. Despite the claimed psychological injury there was no evidence from a psychologist or a psychiatrist in the proceedings. That evidence is likely to have been useful also because, as will become clear, a number of the doctors considered that the Plaintiff had become addicted to Oxycontin and perhaps other narcotic drugs which have been prescribed for him. The doctors are of the view that he has developed a pain syndrome. It was an issue in the proceedings whether there is a causal connection between the accident and the pain syndrome.

The Plaintiff's credit

The Plaintiff was a difficult witness who found it difficult to answer the questions asked. Although a majority of his evidence was given directly in English there were times when he utilised the services of an interpreter who was, in any event, present with him in the witness box most of the time. A frequently encountered difficulty was the fact that the Plaintiff would respond to the question in Arabic to the interpreter but before the interpreter could translate it into English for the benefit of the Court the Plaintiff would be providing his own answer in English. On many questions he provided non-responsive answers and insisted on making speeches. When he became excited in responding to questions he became uncontrollable by counsel or by the Court.
Although I entertained some suspicions about his honesty, subject to a few matters to be mentioned, I do not find that he was deliberately dishonest in his evidence. On the other hand, a number of matters in the evidence as well as his behaviour when giving evidence leads me to the conclusion that much of his evidence, unless otherwise corroborated is unreliable. It was clear, for example, that his memory for events and their timing was very poor.
The evidence he gave concerning women with whom he has had a relationship, relevant to the issue of his immigration status, was extremely confused and cannot be relied upon without there being contemporaneous material to support it. This evidence comprised one area where I entertained some doubts about the Plaintiff's honesty because the evidence suggested that he was prepared to make false claims in relation to these women for the purpose of ensuring, as far as he was able, that he obtained permanent residence in this country. Bearing in mind, however, that Briginshaw v Briginshaw (1938) 60 CLR 336 requires a high measure of satisfaction where dishonesty is to be found, I do not find that the Plaintiff was dishonest in the claims that were made about these women. However, the evidence was left in such a confused state that it strengthens my view that the Plaintiff's evidence must be scrutinised with considerable care before it can be accepted as being reliable.
The other area where I had doubts about his honesty related to symptoms he claimed to be suffering. He gave evidence that he told Dr Winer that he needed to wear a number of layers of clothing even in hot weather because he felt cold all the time. A number of DVDs of surveillance footage put the lie to that claim. The footage shows the Plaintiff to be lightly dressed, in some cases in a short sleeve T shirt exhibiting no signs of being cold. He gave evidence that bending was so difficult that he had to wear his shoes with the back squashed down so that his heel sat on top of the back of the shoe. Again, the surveillance footage showed that not to be the case at least on the days the footage was taken. Further, his demonstration in the witness box showed that he was able to bend without much apparent difficulty.
He said also that he never goes out without his present partner Thi My Tien Le. She is with him 24 hours a day. He then modified that to say that she is with him 90% of the time he goes out. The surveillance footage, some of which was taken after he commenced his relationship with Ms Le, showed him walking, driving and travelling in trains alone.

The location of the fall

The first significant area where the Plaintiff's lack of reliability arises is the precise location on the tiles of where he fell. The Plaintiff was asked to mark on exhibit 1 (photographs taken by his liability expert, Mr Burn) where it was that his feet went forward and upwards, as he had described, that caused him to fall. He marked a position about the width of two tiles from the pathway onto to the tiled area. The tiles were measured by Mr Burn to be 335mm square tiles. The position marked by the Plaintiff was no more than one metre from the end of the path.
On the other hand, the Plaintiff agreed that when he went with Mr Burn on Mr Burn's first visit to the site in about September 2011, about three months after the accident he showed Mr Burn where he fell. Mr Burn showed that spot as being close to the handrail leading up to steps to a ramp shown on the middle photograph taken by Mr Burn that became exhibit 1. The Plaintiff first agreed that his feet went up, therefore, about one metre from the handrail, being a position some metres onto the tiled surface from the pathway. The Plaintiff then changed his evidence to say that he fell some two to two and a half metres from the handrail, that is, back closer to the end of the pathway.
The significance of the precise location concerned the number of steps taken by the Plaintiff on the tiled surface before his feet went up and he fell. It was the Defendant's submission that, based on the Plaintiff having shown Mr Burn that he fell at a spot about a metre from the handrail, this meant that he had taken a number of steps on the tiled surface before he fell. The taking of a number of steps meant that the Plaintiff should have realised that the tiles were slippery and adjusted his step and pace accordingly. The issue was bound up with the question of whether the risk of slipping on the tiles was an obvious risk and whether there was contributory negligence.
I consider it more likely that the Plaintiff fell in the area that he indicated to Mr Burn when they went to the site together in September 2011. Even if I had not considered that the Plaintiff's evidence was generally unreliable, I would have preferred the account of the location of the fall given at a time far more contemporaneous to the fall than the time of giving evidence some four and a quarter years later. The result is that the Plaintiff had taken a number of steps on the wet tiles before he slipped and fell.

Liability

The Defendant as occupier of the shopping centre owed the Plaintiff as an entrant onto the Defendant's premises a duty to take reasonable care to avoid a foreseeable risk of injury to him on the premise that he was exercising reasonable care for his own safety. The duty included the obligation to take precautions that a reasonable person in the circumstances would have taken by way of response to the risk that a person may slip on the wet tiles which surrounded the entrances into the shops. The risks of slipping on a wet surface are ordinarily avoided by people taking reasonable care for their own safety. In that way the mere fact of a fall on a wet surface is not sufficient to establish that an occupier has been negligent: Schultz v McCormack [2015] NSWCA 330 at [73]-[75].
The risk of harm was a risk that the Plaintiff would slip and fall on the wet tiles and thereby injure himself. The Defendant accepts that this risk was foreseeable but submitted that the risk was insignificant and that a reasonable person would not have taken the precautions discussed in the joint report of the engineers. The Defendant submitted that the precaution of warning the Plaintiff would not have been taken because the risk was an obvious risk.
The basis for the submission that the risk was insignificant was said to derive from evidence of the service of a subpoena on the Defendant. The subpoena sought (inter alia): 6. All documents and records relating to personal injury claims made against you or your relevant public liability insurer as a result of all slip and fall accidents at the Busby Shopping Village in NSW from the period commencing 1 January 2005 to date. 7. All documents and records relating to all slip and fall accidents, including the Plaintiffs accident, which took place at Busby Shopping Village in NSW for the period commencing 1 January 2005 to date including, but not limited to, copies of incident reports, witness statements, investigation reports, slip tests, photographic evidence and CCTV footage. The period in those paragraphs was narrowed by agreement to read "commencing 1 January 2010".
The only document produced in answer to the subpoena was a tax invoice for the application of an anti-slip coating in December 2012. That responded to another paragraph of the subpoena. The Defendant's submission was that the Defendant had to prove a negative and asked, in that regard, for an inference that the absence of any documents concerning slip and fall accidents and personal injury claims for the 18 months prior to the Plaintiff's accident meant that there had been no such falls or claims. In that way it was said that the risk of a slip and fall was insignificant.
Whilst the evidence on the matter is weak (it was open to the Defendant to call a relevant officer to say expressly that there were no such claims or falls) I am prepared to accept that the inference should be drawn. However, that does not lead to the conclusion that the risk of such a slip and fall was insignificant. There was, for example, no evidence about the frequency of pedestrian traffic in the area nor the number of wet days in that period so that any assessment could be made that an absence of falls meant that the risk was insignificant. Nor, significantly, was there any evidence of how frequently, nor at what time prior to the accident, the tiles were treated with an anti-slip coating. It may similarly be inferred from the answer to the subpoena that such a coating was not applied from before 1 January 2010 until December 2012.
In circumstances which suggest that there had been no regular application of a non-slip surface to tiles that were exposed to the weather including the rain it cannot be said that the risk of a person slipping and injuring themselves was an insignificant one.
It is then necessary to consider what the reasonable response to that risk would be. In doing so it is necessary to have regard to the question of whether the risk was an obvious risk which is a risk that in the circumstances would have been obvious to a reasonable person in the position of that person: s 5F Civil Liability Act 2002 (NSW). Such obvious risks relevantly include matters of common knowledge. The Defendant submitted, therefore, that wet tiles being slippery was a matter of common knowledge. The issue concerning an obvious risk goes to the duty of the Defendant to warn the Plaintiff of that obvious risk: s 5H.
Apart from some general particulars of negligence the Plaintiff alleged in the Statement of Claim that there was (iii) a failure to warn, (vi) a failure to cover the tiles, (vii) a failure to inspect to see the tiles were safe, (vii) and (xi) a failure to maintain by a non-slip covering, (x) a failure to prevent the tiles being walked on, and (xii) a failure to provide non-slip tiles. Two of the specific failures were abandoned, namely (v) a failure to keep the tiles dry and (ix) a failure to remove the water from the tiles.
As to the state of the surface of the tiles at the time of the accident, reports were prepared by two engineers, Mr Ian Burn for the Plaintiff and Dr John Cook for the Defendant. Although each provided his own reports, the two engineers met in conclave and prepared a joint report. The essential differences between them were (a) the assumption that Dr Cook was asked to make that at some time prior to the incident the Defendant arranged for an anti-slip product to be applied to the tiles, and (b) the different inspection dates when the surface was examined.
Ultimately, the assumption given to Dr Cook was not pressed by the Defendant. There was no evidence that an anti-slip product had been applied to the tiles some time prior to the incident.
Mr Burn first inspected the site on 9 September 2011 which was a wet day. Mr Burn made observations but he did not conduct a formal co-efficient of friction test. He observed that the surface, whilst not "smooth" showed significant difference in wet friction characteristics between the older tiles installed (more slippery where the slip occurred) and tiles that he understood from his instructions had been replaced due to damage. Those newer tiles were less slippery.
He noted that the tiled surface had been laid with minimal cross fall so any water finding its way onto the surface tended to remain lying on the surface rather than draining away. He said that there was no signage to warn people that the tiled surface was potentially slippery when wet.
It seems that the first testing of the slipperiness of the tiles took place when Dr Cook went to the site on 21 October 2013. That was, however, two years and four months after the Plaintiff's accident. It is difficult to see how any testing carried out in October 2013 and subsequently in November 2013 when Mr Burn reinspected the site, can be of any assistance in determining the state of the tiles in June 2011. The Defendant could have provided evidence of when, prior to the accident, the tiles were treated with non-stick surface as appears to have been done subsequently. However, that evidence was not forthcoming. I am entitled to draw a Jones v Dunkel inference that such evidence would not have assisted the Defendant. Quite apart from that, the best evidence I have is from the Plaintiff who fell and from Mr Burn's observations some three months later that suggest there was no evidence of any non-slip coating applied to the tile surface but there was evidence of poor drainage and water lying around at the site where the Plaintiff fell.
In their joint report the experts agreed that the tiled area could have been made safer by replacing all of the tiles with tiles that had a pronounced surface texture at an estimated cost of $100 per square metre. That would have produced an increased level of slip resistance for a significant length of time. The experts also agreed that the tiled area could have been made safer by ensuring that a surface treatment with certified slip resistance properties was applied and kept in good condition by renewing the treatment from time to time as necessary.
In my opinion, the Defendant breached its duty as an occupier by failing to ensure that the tiles were treated with a slip-resistant surface that was renewed from time to time. I am satisfied that the Defendant, alternatively, breached its duty by not ensuring that the tiles were replaced with tiles with a pronounced surface texture in circumstances where there was inadequate cross fall to enable water run off to occur. Although there was no precise measurement of the area covered by the tiles, I am satisfied that it was not so large an area that a cost of $100 per square metre was an unreasonably high cost as a response to the risk.
I do not consider there was any breach by reason of a failure to warn the Plaintiff of the danger of slipping. First, the risk of slipping on wet tiles was an obvious one. Secondly, the Plaintiff claimed not to be able to read English, even the names of railway stations. Any sign, unless pictorial (and that was not suggested), would have been of no use to him at all.

Causation

It is then necessary to consider what the position would have been had the Defendant not been negligent: Garzo v Liverpool / Campbelltown Christian School [2012] NSWCA 151 at [175]. The Defendant submitted that the Plaintiff must prove that it was the low co-efficient of friction of the surface that caused or materially contributed to his slipping which would not have occurred if the surface had a higher co-efficient of friction. The Defendant submitted that the Plaintiff had not addressed other factors that might contribute to a slip occurrence. The onus was on the Plaintiff in that regard.
The two matters particularly relied upon by the Defendant were the speed of the Plaintiff's travel and the shoes he was wearing at the time. As to the first matter the Plaintiff agreed that he was running from his car to reach the covered portion at the back of the shopping centre. The Plaintiff's counsel suggested that the Plaintiff was not running and that he confused "running" with "raining". At one point late in the cross-examination, when he was being asked about a man that he said he saw near where he fell, this evidence was given (T 170): Q. All right. This man was coming towards you? A. WITNESS: Yeah. Q. Did you take evasive action? Did you move one way or another so you wouldn't hit this man? A. INTERPRETER: He's coming this way, I'm going that way. Not straight directly opposite but sort of parallel but towards me. Q. Did you have to move? A. WITNESS: Mm. Q. Did you have to change direction to avoid him? A. INTERPRETER: No, no need because it was enough we could pass each other. Q. You were still running at the time? When you passed this man? A. INTERPRETER: I wasn't running, I think you said raining. WITNESS: Raining of rain, water coming from up, it's rain. GAMBI Q. No, were you still running as you approached-- A. WITNESS: Yes, raining, water coming from up. Q. No, you, were you running to get out of the rain? A. WITNESS: Start here, now you play with the talk, raining I understand, rain coming from up. HIS HONOUR Q. If you'd listen instead of talking you might understand. A. WITNESS: Yes. ..(foreign language).. INTERPRETER: He's saying I was running, I was not running. It was raining. Raining, that's what I understood. GAMBI Q. Were you walking at a normal pace? A. INTERPRETER: It was only two metres, there were only two metre, how I could run two metres.
However, he gave evidence earlier where there was no confusion at all and he said he was running (T 151): Q. Now, you parked as close to the tiles as you could because it was raining? A. WITNESS: Yes. Q. You were walking quickly to get to undercover to protect yourself from the rain, weren't you? A. WITNESS: Of Course. Q. Were you running? A. WITNESS: Yes. Q. Now, as you were running across the tiled surface, I think you said a man was coming this way-- A. WITNESS: Yeah.
The context makes perfectly clear by the nature of his assent to "walking quickly" and the "running" that he understood what was being asked, and "running" was not confused, as was later claimed (but not consistently with the syntax of the questions) with "raining". I find that the Plaintiff ran from his car and across the tiled floor where he fell.
As to the second matter the Plaintiff said that the shoes he was wearing (at least on the third day of the trial) were the same shoes as he was wearing on the day of the accident. The shoes were examined and a number of photos taken of the shoes that became exhibit 18. At the time of the trial the soles and heels of the shoes showed considerable wear so that the central areas of the soles were smooth. Both the sole and the heel of the shoes were made of rubber. No evidence was given about the extent of the wear of the soles and heels of the shoes at the time of the accident. Because more than four years had elapsed from the accident to the trial no inference can be drawn from examination of the shoes and the photos about the extent of wear at the time of the accident. I accept that the onus in that regard was on the Plaintiff.
Nevertheless, on the basis of Dr Burn's report and what is contained in the joint report of Dr Cook and Mr Burn, seen in the light of what Mr Burn observed in September 2011, I find that the state of the surface materially contributed to the Plaintiff's slipping although his speed of movement was, and the wear on his shoes may have been, a contributing factor to the fall.
Factual causation is, therefore, established. It was not really contested that it was appropriate for the scope of the negligent person's liability to extend to the harm so caused: s 5D(1)(b).

Contributory negligence

In the joint report the experts agreed that the grip provided by the Plaintiff's footwear in wet conditions would have contributed to the risk of slipping whether the tiles were treated or untreated. In the untreated situation the footwear grip would have been a more significant risk factor than in the treated situation.
Both experts also agreed that if the tiles were coated (that is, with a non-slip surface) then excessive speed of movement would be a contributing factor to a slip. Dr Cook explained that this was because the dynamic co-efficient of the treated surface was "non-slip" for a pedestrian walking at normal stride and pace, and paying moderate attention.
That wet tiles can be, and usually are, slippery when wet is something that all reasonable people taking care for their own safety are or should be aware of. As I have determined, the Plaintiff admitted that he was running and did not give evidence that he slowed his pace down when he reached the tiled area after leaving the car park area.
Further, because, as I have found, he took a number of steps on the tiles before he fell, he ought to have adjusted his pace to compensate for the slipperiness of the tiles even if he was only walking quickly.
As mentioned earlier when discussing causation, the precise state of the Plaintiff's footwear at the time of the fall is not known. The onus is on the Defendant to prove contributory negligence and the state of the evidence concerning the Plaintiff's footwear means that the Defendant has not discharged the onus in that regard.
I consider that there should be a reduction for contributory negligence for the Plaintiff not adjusting his speed of travel of 10%.

Subsequent course of the injuries

The Plaintiff's first medical attendance after the accident was a week later at Liverpool Hospital on 20 June 2011. The triage comment was that he presented with back pain between the shoulder blades after a mechanical fall the previous week. He walked slightly slumped and stated he was numb in the right little finger.
When seen by the emergency doctor he said that he had tripped over wet tiles a week before and landed flat on his back. Since then he had had pain in his mid-thoracic spine which was worse on "inspection (sic) and movement". He said he was unable to sleep because of the pain.
A CT scan performed later that evening showed an acute wedge compression fracture through the anterior third of the T5 vertebral body with 40% loss of anterior vertebral body height. It also showed superior end plate depression at the T3 level with cortical irregularity of the anterior superior corner consistent with acute fracture of the superior end plate. The Plaintiff was treated first with paracetamol and then with Endone.
He next saw his local doctor, Dr Tadros on 27 June 2011. He had previously seen Dr Tadros on three occasions in 2006 for chest tightness, high cholesterol and for a referral to a specialist to have a circumcision. On 27 June 2011 Dr Tadros noted the compression fracture at T5 on the CT and X-ray. He prescribed rest and analgesics.
The Plaintiff next consulted Dr Tadros on 19 August 2011 complaining of pain in the back of the chest in cold weather as well as tenderness in the thoracic spine. Dr Tadros prescribed Brufen and Endone. He saw Dr Tadros again on 30 September 2011 but the notes do not disclose what the complaints or treatments were on that occasion.
The Plaintiff was taken to the Villawood Detention Centre on 15 October 2011 (agreed) on the basis that he was unlawfully in Australia. This appears to have been as a result of some error by the Department of Immigration in its record keeping.
While the Plaintiff was in the Villawood Detention Centre he was assaulted on 27 October 2011. Another inmate of the Centre punched him with a closed fist in the side of his head when the Plaintiff refused to play snooker with him.
The Plaintiff was taken to Liverpool Hospital by ambulance after the assault. The ambulance records disclose that his complaints when the ambulance arrived were back pain, neck pain and swelling to the left cheek. The Plaintiff also mentioned back pain from fractures to the back four months earlier.
When seen at Liverpool Hospital he complained of pain to the face, the neck and the upper back. He was observed to have mid-cervical spine tenderness. He was given Celebrex, Valium and Endone and sent back to the detention centre.
Whilst he was in the detention centre he was examined by Dr Jayker Dave, an orthopaedic surgeon on 2 November 2011. The Plaintiff told Dr Dave that when he slipped on the tiles his legs went forward and he "landed on his back and subsequently on his back and head". He said he was apparently knocked out.
Dr Dave reported that the Plaintiff was emotional throughout the interview. He complained of problems with his sexual function as well as bruising and swelling around his testes as a result of constipation. He also complained of stiffness and weakness in the back and an inability to lift any objects. Dr Dave noted that the Plaintiff walked without a limp. He had straight leg raising of 40% and 60% on the right. He had brisk knee and ankle jerks. There was no weakness in the lower limbs. His fractures were quite stable.
I note that there is no mention of the assault in the report of Dr Dave.
The Plaintiff was released from Villawood Detention Centre on 6 January 2012.
The Plaintiff next saw Dr Tadros on 24 January 2012 but nothing in the notes suggests the reason for that consultation except that he was prescribed Tramal and another drug which appears to have been some form of sleeping tablet. It can be accepted that Tramal is a drug used to treat back pain.
He saw Dr Tadros again on 27 February 2012 complaining of chronic pain in his back at what Dr Tadros identified as T3 and T5. He also complained of pain in the neck and headaches. Dr Tadros, apart from prescribing Tramal and Inderal, appears to have sent him for a CT scan of the head and an x-ray of his cervical spine.
The Plaintiff saw Dr Peter Giblin on 18 June 2012 at the request of the solicitors who now act for him. Dr Giblin noted that his chief complaint was continuing pain in the thoracic spine which was aggravated by lifting activities or trying to stand or walk for more than 15 minutes. He said that the pain stopped him from sitting for more than a few minutes. At night he said he could not sleep without taking Tramadol. His sex life was greatly reduced. He said that he lived in a situation where he did no domestic duties because he could not lift baskets of wet laundry or groceries, could not wash his car and did none of the outside maintenance work such as lawns or gardens. He was living in a house owned by his brother and his sister-in-law and their four children.
Dr Giblin observed that his thoracic spine was reasonably straight but percussion in the upper thoracic spine produced the complaint of pain and para-thoracic muscle spasm.
Dr Giblin provisionally diagnosed a fractured T5 reasonably causally related to the subject accident. He also provisionally diagnosed a soft tissue injury to the cervical spine reasonably causally related to the accident. Dr Giblin thought that some symptoms would persist in a recurrent fashion and would be associated with permanent limitation. Dr Giblin assessed him as permanently unfit for heavy labouring work, having to avoid repetitious heavy bending, lifting and twisting or prolonged periods of enforced and uninterrupted sitting and standing.
In a separate report Dr Giblin assessed him under the WorkCover Guidelines as having a 17% whole person impairment.
The Plaintiff saw Dr Conrad Winer, a rehabilitation physician, on 3 July 2012. He told Dr Winer that after going to Liverpool Hospital a week after the accident and having x-rays and a CT scan he stayed in his house for four to six months. Neighbours came in to do cooking, cleaning and shopping. He said the pain killers were so strong that he was not aware of what was happening. He told Dr Winer after four to six months "when he could just walk" he would drive his car 400 metres to the shops for a little shopping. When Dr Winer referred the Plaintiff to some documents he had, the Plaintiff said it was probable he was "just walking" by two months after the fall.
This account given to Dr Winer cannot be accepted. The objective evidence demonstrates that he consulted Dr Tadros during this period and that he was back at Villawood with no apparent inability to walk by October 2011. In fact Dr Dave noted that on 2 November 2011 the Plaintiff walked without a limp. This is another example of why the Plaintiff's uncorroborated evidence cannot be accepted.
The Plaintiff also complained to Dr Winer of mid-thoracic spine pain all the time especially when sitting, pain at the cervico-thoracic junction region whenever he held or carried anything and pain down the medial aspect of his forelegs, especially when cold.
He reported the assault at the Detention Centre and said that ever since that time he had had noises in his head and shaking of his hands. He said he had to wear layers of clothes all the time even in hot weather because it was too painful in his back if it felt cold. He said he had to wear his shoes with the heel on top of the squashed rear of the soft shoe. If he wore his shoes in that way he could walk for ten minutes but if he wore his shoes normally then the pain would be five times more. These matters were noted earlier. He said his back had been much worse in the previous six months and he always needed someone to look after him. Dr Winer noted that he walked with a limp as though he was pulling his left leg through.
Dr Winer thought he was permanently unfit to return to work because, when installing light fittings and laying the wires (as Dr Winer thought he did or was told he did), he would have to be repeatedly reaching upwards from a ladder or working in ceilings or basements where he would have to spend some time partially bending forwards or kneeling. All of those activities would aggravate the thoracic spine.
Dr Winer said that the Plaintiff was in need of, and was receiving, gratuitous assistance with all domestic tasks including shopping and cooking although those activities were being done for four or five other members of the family at the same time so that the extra time needed for the Plaintiff was minimal.
Dr Winer assessed him as having a 23% whole person impairment by reason of the problems with his thoracic spine.

Non-economic loss

A joint report was prepared by Dr Gilblin and Dr Maxwell, the orthopaedic surgeons. The joint report dated 26 August 2015 is significant for causation and the calculation of damages, and is reproduced in full: 1. Your diagnosis/findings on clinical examination. Dr Giblin's diagnosis was a fractured T5 and possibly a minor fracture of the end plate of T3. The main finding on clinical examination was some tenderness in the upper thoracic spine to direct percussion. There was a slightly increased kyphosis and the rotation of the thoracic spine was minimal and asymmetrical and associated with the complaint of pain. There was no evidence of radiculopathy in the lower extremities. Dr Maxwell's diagnosis was a mild fracture of T5. Dr Maxwell's examination showed paradoxical findings with modified pain behaviour suggestive of illness behavioural considerations. There was no radiculopathy. There was some boney soft tissue tenderness with a hyperactive pain response on palpation of all the spinous processes. 2. Your opinion as to the likely cause of any ongoing pain or limitations, Including any pre-existing conditions? Dr Giblin - Residual sequellae of the combination of Scheuermann's disease and the fracture of T5 together with narcotic analgesic dependency. Acknowledgement of pre-existing Scheuermann's disease is noted. Dr Maxwell - the likely cause of any ongoing symptoms and limitations is due to his pain perception which has been altered by prescribed addictive narcotic medication. I don't consider the underlying Scheuermann's changes in the thoracic spine are symptomatic. 3. Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to work? Dr Giblin views the organic injuries as having minimal effect on the capacity for work in terms of pre-existing work environments. Dr Maxwell - views the Plaintiff's injuries as having no effect on his capacity for work. 4. Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to perform domestic duties around the house? Dr Giblin - feels the Plaintiff's injuries would have minimal effect on his capacity to perform domestic duties around the home. Dr Maxwell - has the view there is no effect from the injuries. 5. Whether or not there is a reasonable need for gratuitous care as a result of the accident? If yes, please comment as to whether the need for domestic care services would equate to more than six hours per week for six months or more? Dr Giblin - says there is no need for current or future gratuitous care in terms of routine domestic duties. Dr Maxwell - agrees that there is no need for current or future gratuitous care as a result of the accident. 6. Whether the Plaintiff requires any treatment in the future and the nature and extent of that treatment? Dr Giblin - this gentleman has had sufficient treatment for his organic injuries. Future treatment may be in terms of assistance in relation to his current medication intake. Dr Maxwell - believes that there has been enough treatment for these injuries and he needs to cease his addictive narcotic medication. 7. The Plaintiff's prognosis? Dr Giblin - says there is a reasonable prognosis for the physical injuries but it is uncertain about the effects of the prescriptive medication. Dr Maxwell - considers there is a good prognosis for his physical injuries.
A joint report dated 20 August 2015 was prepared by the three rehabilitation doctors who had seen the Plaintiff, Professor Richard Jones, Dr Winer and Dr Adler. It is also significant in relation to causation and to the damages to which the Plaintiff is entitled and it is reproduced in full: Question 1: Your diagnosis/findings on clinical examination? Answer to Question 1. There was consensus that Mr Raad has constitutional Scheuermann's disease affecting multiple thoracic vertebrae. This opinion is based on the radiology reports supplied to the experts. There was consensus that there was an acute mechanical injury to the mid-to-upper thoracic spine. Professor Jones was of the view that the fall would have caused soft tissue injury with the possibility of an aggravation of a pre-existing condition. Dr Adler was of the opinion that it was probable that the compression deformities of T3 and T5 were aggravated at the time of that injury. Dr Winer was of the opinion that the fall may have aggravated pre-existing wedge deformity due to Scheuermann's disease in T5 and T3. Question 2: Your opinion as to the likely cause of any ongoing pain or limitations, including any pre-existing conditions? Answer to Question 2: There was consensus that the pain of any acute injury should have resolved within three to six months of the accident. Any continuing spinal pain could be associated with the pre-existing Scheuermann's disease, aggravated by psychological dysfunction. Question 3: Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to work? Answer to Question 3. There was consensus that this man does have symptomatic Scheuermann's disease. This is causing a reduction in his work fitness. Mr Raad would never be fit to return to his previous occupation as a labourer. He would have to be more selective in choice of employment, but there is a range of jobs which, with vocational rehabilitation assistance, he would be able to perform, commencing at 20 hours per week, gradually increasing to 30 hours per week, with the possibility of full-time employment. The above opinion is in relation to the Mr Raad's physical impairment. Question 4: Whether the Plaintiff's injuries would have any effect on the Plaintiff's capacity to perform domestic duties around the home? Answer to Question 4. There was consensus that for up to three months from the time of the accident Mr Raad may have required domestic assistance of about an hour a day. At present, he would be capable of most domestic chores, but he would not be able to do heavier chores including lifting, which, in a standard-sized home, might equate to about three hours per month. This prescription is based upon the premise of preventing aggravation of his Scheuermann's disease. Question 5: Whether or not there is a reasonable need for gratuitous care as a result of the accident? If yes, please comment as to whether the need for domestic care services would equate to more than six hours per week for six months or more? Answer to Question 5. There was consensus that there was a need for gratuitous care as a result of the accident. (See the answer to question 4). The need for domestic care services would not equate to more than six hours per week for six months or more. Question 6: Whether the Plaintiff requires any treatment in the future and the nature, extent and cost of that treatment? Answer to Question 6. There was consensus that Mr Raad is in need of continuing psychological/psychiatric support and pain management. Question 7: The Plaintiff's prognosis? Answer to Question 7. There was consensus that Mr Raad's prognosis will be determined by his psychiatric illness and Scheuermann's disease.
None of the doctors was called to give evidence which means that I am heavily reliant on the conclusions expressed in these joint reports. I am assisted, however, in that regard by the fact that the experts within each conclave are largely agreed in their conclusions and that the two conclaves largely agree also. I have also had regard to a folder of medical, hospital and radiology reports. None of the authors of those reports was called to give evidence.
The most important matter to emerge from both joint reports is the fact that the Plaintiff had underlying Scheuermann's disease. Scheuermann's disease is a skeletal disease that usually begins in adolescence in which the vertebrae grow unevenly, resulting in wedge-shaped vertebrae and a hunched back. I would have been assisted by medical evidence about this condition and its relationship to the injuries sustained by the Plaintiff. In the absence of such evidence I am entirely dependent upon the conclusions in the two joint reports.
I have already noted the absence of any evidence from psychologists or psychiatrists. Although the Plaintiff's counsel submitted that there was no functional aspect to the Plaintiff's complaints I am not sure that that submission is correct. I was certainly left with the impression of a strong functional overlay to many of the complaints. My view is strengthened by the apparent acceptance of the Plaintiff's lawyers of a narcotic dependency, and an inference from the joint expert reports that he may be suffering from pain syndrome brought about by excessive consumption of narcotics such as Oxycontin and Endone. The difficulty is that, with no expert giving evidence about the matter, there is no evidence of a causal connection between that syndrome and the accident. The causation problem is highlighted by problems from the subsequent assault in the detention centre and from the fact that most of the experts consider that his Scheuermann's disease is now symptomatic and is likely to be a cause of his ongoing pain.
My findings in relation to damages are chiefly made on the basis of the joint reports of the two conclaves of medical experts and the contemporaneous medical reports produced from time to time after consultations between the Plaintiff and various doctors and hospitals. I cannot place much reliance on the Plaintiff's evidence about what he has experienced at any given time including particular limitations and disabilities brought about by his conditions. His evidence was particularly unreliable as to the timing of events. Further, there was been undoubted exaggeration of what he was experiencing. I accept that cultural matters may have influenced his descriptions of events and I am not suggesting deliberate dishonesty in relation to the exaggerations.
The Plaintiff suffered undoubted fractures at the T3 and T5 level. He also suffered soft tissue injury to the cervical spine. He was no doubt in considerable pain and discomfort for a few months after the fall. He may have needed to remain largely in bed or seated for a period of time after the fall but the reports from Dr Tadros and Liverpool Hospital do not suggest that he was unable to walk during this period. Indeed the triage comment when he first presented to Liverpool Hospital a week after the fall that he was "walking slightly slumped". He did not complain to Dr Tadros a week after the Liverpool Hospital visit nor in August of 2011 that he was unable to walk. At the time he was stopped and taken to the Villawood Detention Centre in October 2011 he was driving a car.
The rehabilitation experts agreed that the pain of any acute injury should have resolved within three to six months of the accident. Any continuing spinal pain would be associated with the pre-existing Scheuermann's disease aggravated by psychological dysfunction. The orthopaedic specialists thought that any ongoing pain or limitations came from the Scheuermann's disease and/or the Plaintiff's narcotic analgesic dependency.
The extent of the Plaintiff's pain and limitations can also be discerned from the view of the rehabilitation experts that he would have required about an hour's domestic assistance a day for up to three months from the time of the accident.
The surveillance evidence was very helpful in assessing, to some extent, the Plaintiff's ongoing disabilities. Whilst in the first of the DVDs taken on 19 March 2014 the Plaintiff is observed to limp ever so slightly some but not all of the time, the later DVDs taken on 20 October and 12 December 2014 and 6 July 2015 show no sign of any limp or other than normal gait. Contrary to his evidence about the difficulty he has walking upstairs, that difficulty was not demonstrated in walking up the stairs at railway stations. The DVDs showed him to sit, stand, bend and lean into cars, as well as enter and alight from cars with no apparent restriction.
The Plaintiff's evidence and the evidence of his partner about the Plaintiff screaming in bed at night bordered on the bizarre. It was not suggested by either of them that this was because the Plaintiff was in pain, and since the Plaintiff seems to have a ready supply of narcotic analgesics prescribed for him, that does not seem the likely explanation. This was some of the evidence that caused me to think that there is a functional overlay to the Plaintiff's problems but since there was no expert evidence to explain it I cannot be satisfied that it is related to the accident and the injuries sustained in that accident.
At various times after the accident the Plaintiff seems to have developed other problems that are difficult to relate to the accident. Some of these might have been caused by the assault at the detention centre; for example, he told Dr Winer in July 2012 that ever since the assault he has had noises in his head and shaking of his hands. In May 2013 he went to Liverpool Hospital to complain of altered sensation and numbness to the left leg. In that regard it should it noted that there was no injury to the lumbar spine in the accident. The doctors do not assert any connection between those matters and the accident.
Neither the rehabilitation specialists nor the orthopaedic specialists relate the Plaintiff's ongoing problems to the accident. Rather they consider that they are a sequelae of the Scheuermann's disease, of his narcotic dependency and of psychological/psychiatric issues not seemingly diagnosed.
For all of these reasons I would assess the Plaintiff's non-economic loss from the accident at 20% of the worst case. That entitles him to $21,000.

Domestic assistance

The rehabilitation experts accept that the Plaintiff had a need for gratuitous care as a result of the accident but that this would have been for an hour a day for a period of three months. Before it became apparent that the Plaintiff had pre-existing Scheuermann's disease Dr Adler considered in July 2012 that the Plaintiff had a need for four hours per week domestic assistance. Neither of those assessments meets the threshold in s 15(3) of the Civil Liability Act 2002 (NSW).
The Plaintiff is not entitled to any damages under this head.

Past economic loss

As noted earlier, the Plaintiff worked in his brother's company. It was variously reported to the doctors that he did electrical work and/or labouring work of a fairly heavy nature. His brother confirmed the heavy labouring work but denied the electrical work. He said that the Plaintiff also drove the apprentices to jobs. He has not worked at all since the accident.
The rehabilitation experts were agreed that because of the Plaintiff's symptomatic Scheuermann's disease he will never be fit to return to his previous occupation as a labourer. The doctors who examined him more contemporaneously to the accident considered that he was permanently unfit for heavy labouring work as a result of this symptomology at that time (Dr Giblin in June 2012 and Dr Winer in July 2012).
In the joint report Dr Giblin considered that the injuries suffered in the accident would have a minimal effect on his capacity for his pre-existing work. Dr Maxwell thought that the injuries had no effect on that work. Those conclusions should be considered alongside the conclusion of all of the rehabilitation experts that the pain and limitations from the accident should have resolved within three to six months of the accident. When those opinions are considered with the conclusions of Dr Giblin and Dr Adler in 2012 that heavy labouring jobs would aggravate the thoracic spine I conclude that the Plaintiff's incapacity for his pre-existing work as a labourer should be regarded as having lasted for a 12 month period.
The rehabilitation experts said that there was a range of jobs which, with vocational rehabilitation assistance, he would be able to perform commencing at 20 hours a week, gradually increasing to 30 hours with the possibility of full time employment if his physical impairments were considered. Dr Matalani, an occupational physician who saw the Plaintiff in August 2013 considered that the Plaintiff was fit for permanently modified duties that did not involve repetitive bending or twisting of the spine, prolonged uninterrupted sitting, prolonged walking and prolonged standing or heavy manual handling activities. He thought, however, it would be difficult for him to find suitable employment in the open labour market because of his limited education, poor English and illiteracy.
When he saw Professor James Bright, a vocational psychologist in February 2014 he listed some of the specific options that the Plaintiff could consider as car park attendant, ticket collector, product tester (light products), product assembler, fast food vending machine attendant. He said that if the Plaintiff could be persuaded to undertake some English language training he might consider options in the sales worker, machinery operators and drivers categories of the Australian and New Zealand Standard Classification of Occupations.
I can understand why, when the Plaintiff is illiterate in Arabic his native language, learning to read and write English would be challenging. However, he has the singular advantage that his spoken English and his ability to understand English are reasonably good. The majority of his evidence was given in English without the aid of an interpreter translating the questions for him. Although he took his nephew along to some interviews, the majority of consultations with doctors were conducted in English between the doctor and the Plaintiff.
The weight of medical evidence points to the conclusion that any relationship between the Plaintiff's incapacity for his pre-accident work ceased at a time no later than 12 months after the accident.
The Plaintiff said in his statement that he was earning approximately $975 net per week before the accident. He was not challenged on that figure. No evidence was led from his brother about how much he was paying the Plaintiff. Moreover, it was not suggested in cross-examination to him that it was less than the Plaintiff claimed. However, the claim in the Plaintiff's Schedule of damages was for $936 net per week. That figure seems to have been accepted by the Defendant.
The Defendant submitted that there was a preliminary issue to be determined in relation to the Plaintiff's entitlement to economic loss.
The issue arose in this way. The Department of Immigration and Border Protection (as it is now known) had previously recorded the Plaintiff's work rights in this way: From To Work rights 22/04/2005 02/01/2006 Mr Raad held full permission to work on the subclass 300 Prospective Marriage visa 30/01/2006 08/10/2010 Mr Raad held full permission to work on a subclass 010 Bridging A visa 09/10/2010 15/10/2011 Mr Raad was unlawful in Australia, and therefore held no permission to work 15/10/2011 05/01/2012 Mr Raad was held in Immigration detention 6/01/2012 12/06/2014 Mr Raad held subclass 050 Bridging E visas subject to condition 8101 "no work" 13/06/2014 14/01/2015 Mr Raad held subclass 050 Bridging E visas subject to no work restrictions 14/01/2015 Current Mr Raad held a subclass 010 Bridging A visa subject to no work restrictions

In January 2015 the Department's records were amended to show retrospectively that the Plaintiff's visa history was as follows: From To Work rights 22/04/2005 02/01/2006 Mr Raad held full permission to work on the subclass 300 Prospective Marriage visa 30/01/2006 Current Mr Raad held full permission to work on a subclass 010 Bridging A visa

The Defendant's immigration expert, David Prince, said that the effect of the change to the Department's records as a matter of deemed operation law is that the Plaintiff is now taken to have held permission to work ever since his arrival in Australia on 22 April 2005.
The Defendant submitted, nevertheless, that during the time the Department's records disclosed that the Plaintiff was not entitled to work, he did so illegally. That was said to have a few consequences. The first was that his past earnings working for his brother should not be taken into account other than to demonstrate a capacity to earn rather than necessarily demonstrating an actual exercise of that capacity and, therefore, loss.
Secondly, and in reliance on cases such as State Rail Authority of NSW v Wiegold (1991) 25 NSWLR 500 and Smith's Newspapers Ltd v Becker (1932) 47 CLR 279, the Plaintiff should not be entitled to recover for any loss of wages because he would have been undertaking an illegal activity in being employed during the period the records showed him disentitled to work. Thirdly, if the Plaintiff had sought work after the accident when capable of doing so, any employer would on enquiry have ascertained that the Plaintiff had no entitlement to work. The Plaintiff would not, therefore, have been employed. The submission appeared to be that the cause of the Plaintiff's inability to earn an income was not the injuries sustained in the accident but the Department's assessment that the Plaintiff was not entitled to work.
The Defendant's submissions in this regard should be rejected. The wrong recording in the Department's records was a mistake as the Department later acknowledged. Mr Prince said that when the records were changed the Plaintiff was deemed always to have had the right to work. That being so the wages he actually earned should be taken as the measure of his loss and any inability to work during that period did not flow from the Department's assessment but, if all other things were established in the Plaintiff's favour, from his injuries in the accident. For the reasons I have already given, the Plaintiff has not established as a matter of causation that his loss of earnings beyond a 12 month period from the accident was referable to those injuries.
Accordingly, I assess the Plaintiff's past loss of earnings at $48,672 ($936 x 52).

Loss of past superannuation

The Plaintiff is entitled to damages for loss of his superannuation on the past wage loss in the sum of $5,354 ($48,672 x 11%).

Future economic loss

Consistently with my findings, the Plaintiff is not entitled to any future economic loss. His present incapacity is not as a result of the accident. It is not necessary, therefore, to reach any view about the Plaintiff's likelihood of being allowed to remain in Australia or return here after an off-shore visa application.

Past out-of-pocket expenses

The parties agreed that should the Court find the Defendant liable for past out-of-pocket expenses relating to the Plaintiff's thoracic spine injury without a narcotic medication addiction the agreed amount would be $1,100. If the Court found the Defendant liable for past out-of-pocket expenses relating to the Plaintff's thoracic spine and any cervical and/or lumbar spine injury without a narcotic medication addiction the agreed amount would be $4,167.37.
I have found (a) no liability for a narcotic medication addiction, (b) a liability for a thoracic spine injury, (c) a liability for a cervical spine injury, (d) no liability for a lumbar spine injury. This does not fit precisely into any agreed category. I will, therefore, allow $3,000 for past out-of-pocket expenses.

Conclusion

The Plaintiff is entitled in the first instance to damages under the following heads: 1. Non-economic loss $21,000 2. Past wage loss $48,672 3. Interest on past wage loss $5,915 4. Loss of superannuation $5,354 5. Out-of-pocket expenses $3,000 6. Total $83,941 Reduced by 10% for contributory negligence - the Plaintiff is entitled to a judgment of $75,547.
Accordingly, there will be judgment for the Plaintiff in the sum of $75,547. In the light of the judgment sum and rule 42.34 Uniform Civil Procedure Rules 2005 (NSW) I will hear the parties on costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2016

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