Q. Was there a certain urgency about it?
A. That's correct.
25 Following this conversation the Plaintiff said that he, Mr Sarkis Ibrahim, and Mr Sakr commenced to take tools up to a courtyard balcony. They also took there a stepladder borrowed from another tradesman working at the site.
26 The balcony was on the second floor of the building and access to it was gained through the unlocked door of the adjoining unit. There was no fence or railing demarking the edge of the balcony from a drop of some 5.6 metres to a concrete path below. Although there was no evidence as to the precise measurements of the balcony, Mr Sarkis Ibrahim subsequently estimated it as about 1.5 metres wide and about 2.5 - 3 metres in length. Those measurements seem to accord with various photographs tendered in evidence.
27 The Plaintiff found an accumulation of rubble on the balcony, which Mr Ibrahim swept to one side, creating a flat concrete surface upon which to base the stepladder. He set this up close to the wall, as far as possible from the balcony edge. The Plaintiff estimated the distance between the ladder and such edge as between 600 and 800 mm.
28 Asked whether he had safety concerns, he replied that he did not, as in his mind was only the thought that if the job were not done, his employer would not be paid. There was no one senior to him from Chubs on the site to whom he could speak and he did not telephone Mr Charlie Ibrahim to seek further instructions. He claimed that there was nothing on the balcony to which a harness could be attached.
29 As I understand it, the immediate task facing the Plaintiff and his colleagues was to construct a timber frame from the top of the wall of the balcony under the roofline upon which fibro eaves would sit. For this purpose, the Plaintiff, while standing on the ladder took measurements and called them out to Mr Ibrahim with the intention that he would cut timber to size. This had been occurring for some little time with the Plaintiff standing on the second rung of the ladder when the subject accident occurred. At one point, he said that he watched Mr Boswell walk through the courtyard to the back lane in the course of which he had looked up and, according to the Plaintiff, they had "eye contact".
30 Altogether, the Plaintiff said he was on the ladder for about 20 minutes before, as is common ground, the ladder toppled, or the Plaintiff overbalanced and both fell over the edge of the balcony to the ground. At this time, Mr Sakr was in the toilet and Mr Ibrahim was inside the doorway of the adjoining unit.
31 The Plaintiff said that he has no recollection of the mechanics of the fall itself but he does remember trying to grab the edge of the concrete balcony as he fell past it. He thought he was going to die. Subsequently, he has had frequent upsetting flashbacks of his attempt to save himself. He next recalls waking up in St George Hospital.
32 The Plaintiff told Mr Semmler that if the cherry picker had been available he would have used it and that if a harness had been available he would have worn it.
33 He described his general state of health immediately before the accident as "pretty much perfect", although, apart from the car accident mentioned, he had required surgery during 2003 for an infected pilonidal sinus which required surgical intervention on 2 occasions, 25 June 2003 and 30 October 2003. Thereafter, for a period, he required antibiotics and the attendance of a nurse at his home to apply dressings. He took pride in his level of fitness and attended a gymnasium 4 times a week. He also played social sport at weekends. He had a girlfriend, Sharmaine, and their relationship was serious enough for them to contemplate marriage, an event which subsequently occurred. With sport, attendances at the gymnasium, and social engagements with his girlfriend, he had a very busy life outside his work. He also had ambitions for his career in the building industry which, after a few years, he believed would have him as the proprietor of a project building company, although that was contingent upon him first completing further TAFE courses. He loved his work.
34 He was also planning his financial security, in that he had put in train the purchase of a residential unit for investment purposes, which was to be financed through the National Bank. The accident prevented this project proceeding and it cost him of the order of $1,200 to $1,500 in cancellation and other fees.
35 The Plaintiff's testimony was to the effect that he made a substantial contribution to the household of his parents with whom he lived. He mowed lawns, weeded gardens, did general handyman jobs, including house painting, washed the family cars and assisted his mother in household chores such as clothes washing, washing dishes and cleaning.
36 He described himself, in effect, as happy and contented with his life, looking forward to a planned and enjoyable future.
37 Unsurprisingly, the Plaintiff, having fallen more than 5 metres headfirst on to a concrete path, suffered severe and potentially life threatening injuries. It was common ground that this was so, although there was an issue as to the extent of his continuing disabilities. There was also an issue as to whether he suffered organic brain damage, although again it seems to be common ground that he has significant, continuing mental health problems.
38 He remained in hospital from the accident until 20 July 2004. Asked what troubled him most when he first became aware of his predicament, he replied "the state I was in, my leg, my arm, my whole face, my life, my future".
39 Although, understandably vague as to the detail, he was aware that he had emergency surgery to his knee on the day of his admission; surgery on 24 June to his right arm and left wrist, which involved a bone graft and the insertion of plates and screws; a major operation on 26 June to his jaw; and another on 2 July to his face, which posed the worrying risk of him losing his right eye. This last mentioned operation left him with a large scar across the top of his head. He also required dental treatment as there was damage to his teeth, including the loss of a right front upper tooth. Not only were the medical procedures frightening but, according to the Plaintiff, throughout the whole of his stay in hospital he experienced very considerable pain, particularly in his head, right arm and left wrist.
40 Following the surgical procedures in hospital both of his arms were in plaster and his right leg was in a brace. The brace remained for some months following his discharge from hospital, during which time, as his leg was held in a rigid position, he found mobility very difficult.
41 The surgery to his right elbow, left his arm fixed in what he described as a 90-degree angle. It remained thus for about a year until partly released in a further surgical procedure.
42 Whilst in hospital, he said that he felt suicidal, "to me in my eyes my life was over. I couldn't walk, I was all broken, my future was destroyed ….. no more work for me, no more plans that I had. I couldn't do them no more. I looked at it as if it was not worth living, too much pain". He found sleep difficult and when he did sleep he had nightmares about the accident.
43 He also noticed problems with his short-term memory, especially when questioned about people who had been to visit him and he became irascible towards members of his family, "it was just the state I was in". He said that he is still easily frustrated, "sometimes I am happy, some times I am snappy. I get stressed, depressed. Just all them symptoms make me snap". In hospital and subsequently, he has experienced intrusive thoughts of the accident but these, following psychotherapy, have somewhat diminished. Another condition first noticed in hospital which continues to trouble him is blurred or double vision, mainly with his left eye.
44 When the plaster was removed from his right arm, he noticed that the little finger of his right hand remained in a curled position and he is still unable to straighten it. One side of his right palm always feels numb.
45 In the course of treatment, many stitches and staples were inserted n his head which felt as if it was "going to explode and was very painful - when I got out (of hospital) it was a bit better. I still get the headaches and the dizziness".
46 At the time of discharge from hospital he was taking powerful analgesic medication for relief of pain, virtually over the whole of his body. He was mobile with the aid of a forearm crutch.
47 Gradually, there was improvement in his mobility, aided by physiotherapy, although as his ability to walk improved he began to experience intermittent lower back pain, which, at times, could be intense and extend into his right leg. He continued to experience difficulty in sleeping and to have recurring nightmares of the accident. He commenced to consult a general practitioner, Dr Sellathurai (Dr Sella) and continued under the care of orthopaedic surgeon, Dr Hugh Jones.
48 In August 2004, he was returned to hospital under Dr M Klaasen for removal of the metal arch bars which had been inserted in his mouth. He also began to consult a psychologist, Mr V. Herrera. He underwent further dental treatment in relation to his right front upper tooth, which led to Dr P Sibraa replacing it with an implant which was later crowned and is still in place. In September 2004, he consulted an optometrist about his complaint of blurred or double vision.
49 Between 18 October 2004 and 28 May 2005, he had intensive physiotherapy to his right knee and left wrist, some 59 sessions in all. During this period, or most of it, he was driven to medical appointments by a member of the family as he was, at the time, unable to drive himself. Ultimately he became well enough to drive a car once more.
50 In April 2005, he was referred to a neurologist, Dr N Griffith, at Liverpool for the purpose of treating his headaches and dizziness which he was experiencing a few times a week and which, when present, lasted" an hour or two", but he said the medication prescribed by Dr Griffith was ineffective.
51 It was Dr Hugh Jones who operated to release his right arm in September 2005, but the prospect of the operation worried him, in light of advice that there was the possibility of nerve damage. He sought a second opinion before consenting to the surgery. In the event, the surgery was only partially successful, in that while the arm became less restricted in movement, it remained far from what it had been before the accident. The surgery involved an overnight stay in hospital and having his right arm in a brace for about 6 weeks. He was also required to convalesce at home for a fortnight.
52 A month later, in October 2005, Dr Jones removed plates and screws from his right knee but was unable to remove them from his left wrist and they remain in place.
53 As I have indicated, before the accident the Plaintiff and Sharmaine had contemplated marriage. In the result they married on 14 April 2006, somewhat later than they planned, the delay being a direct consequence of the accident. The marriage went ahead, notwithstanding that, according to the Plaintiff, there were strains in their relationship after the accident, "just my moods, my frustration, the way I always was depressed, my physical side, my mental side, just all affected it". He said this was a far cry from their pre-accident relationship.
54 During 2006, the Plaintiff noticed facial twitching in his right cheek and a feeling of numbness, which extended from his top lip up the right side of his face across his skull and down the left side. This feeling continues to trouble him.
55 During 2007, before the birth of his son, Zayne, on 3 July, the Plaintiff and his wife moved from his parent's home where they had been living to the rented premises at Hinchinbrook, referred to above, where they have continued to live.
56 Since May 2007 he has been under the care of Dr Raymond Tint Way, a psychiatrist, who is seeking to control his mood swings and depression. He was referred to Dr Tint Way by Active Occupational Health Services (Active), an organisation retained by his employer's Workers Compensation Insurer, which has been attempting to secure his return to the work force. Dr Tint Way has prescribed medication which the Plaintiff said he takes.
57 In the period the Plaintiff was hospitalised from the accident until 20 July 2004, he was able to do nothing by way of caring for himself. During that period members of his family and Sharmaine visited him extensively. Typically, his mother visited each day arriving during the morning, leaving about 3pm and returning about 6pm for 2 or 3 hours. Sharmaine would come to the hospital after work and spend most of her weekends with him. During hospital visits Sharmaine and members of his family would regularly perform services such as feeding him, dressing him, shaving him and wheeling him in his wheel chair about the hospital. He agreed, however, that given time, most of these services would have been provided by hospital nurses.
58 For three months after discharge from hospital, the Plaintiff needed assistance with virtually every activity of living, including dressing, eating bathing, showering and toileting. He also had to be driven to and from his numerous medical appointments. He required assistance to move about the house and was unable to assist his family in any way with the performance of household chores. He did not keep a record of the time spent by others in performing tasks, which, had he been fit and well, he would have performed himself.
59 For the next nine months until the partial arm release in September 2005, the main impediment to him being able to care for himself was the very limited use he had of his dominant right arm. He was also hampered by a considerable restriction in the range of movement of his right knee. He was unable to bend, kneel or squat and, as a consequence, still needed assistance in dressing, although he was able to undress himself. He often bathed rather than showered, but needed assistance to raise himself out of the bath. He was partly able to shave himself but his double vision necessitated assistance when shaving one side of his face.
60 During this nine month period, he said that he continued to feel "depressed, frustrated, disappointed, shattered". He remained unable to perform even minor domestic chores, even though on occasions he attempted them. Apart from the other disabilities mentioned he found that his grip with both hands was weak.
61 His situation improved to some extent during 2005 when he became able to drive a car again and was able to take himself to most medical appointments. He still felt unable to drive as far as Campbelltown, a round trip of 1½ hours, where he had physiotherapy twice a week. His brother customarily drove him.
62 In the more than 2 years since September 2005, there has been gradual improvement in his general condition but he still need assistance, which his wife provides, in drying after a bath or shower, in shaving, in rising from a bath, in putting clothes on his upper body, in putting on his socks and his shoes when laces are involved and in cutting his toenails. He estimates that his wife provides about half an hour a day on his personal needs directly related to the limited use he has of his right arm.
63 His inability to assist in the performance of household chores remains on going. He helps his wife with the shopping but is only able to lift and carry light items. He said he cannot sweep, vacuum clean, wash clothes, hang out washing or change bed linen, although this is inconsistent with what he told the occupational therapist, Ms Walcot, referred to hereafter. If he could, he said that he would assist his wife with all these activities. She is now engaged full time in household duties, having resigned her employment as a receptionist, two weeks prior to the birth of their son.
64 He estimates that he would have provided assistance to his wife and otherwise attended to household chores to the extent of 5 or 6 hours a week, which he said he would have been able to fit in after work or at weekends. He said that he would also have found time to perform gardening, handyman tasks and car washing as they are "things I love doing". Where he lives now has lawn and garden, back and front. Sometimes, one of his brothers who lives nearby attends to it, other times he pays someone to do it. He estimated that his brothers devote 5 or 6 hours per week to work which he otherwise would have done himself.
65 The Plaintiff also said that he is not able to participate in looking after his son, as he would have wished. Virtually everything required is done by his wife, although he is able to wheel him in a stroller if his wife loads and unloads him. He is unable to place him in, or take him out of a car seat because this involves painful stretching and lifting and for similar reasons he is unable to bath him. When his son wakes at night and needs attention, the Plaintiff, as I understand his evidence, does not hear him if he is in a deep sleep induced by the insomnia medication, which he takes each night. He said that the child, who was only about 6 weeks old when the evidence was given, cries frequently and this makes him irritable to the extent that he will leave the room. He said that he feels "disappointed" that he cannot make a greater contribution to his son and fears that the situation will become worse as the boy grows older and bigger. He estimated that, if he were able, he would spend 2 to 3 hours a day assisting his wife with the child.
66 He continues to take a considerable amount of prescribed medication - Stilnox for insomnia; the antidepressant Cipranol, which also eases feelings of light-headedness; Epilim, a mood stabiliser; Oxycontin, a pain reliever; and Panadol or Panamax several times a week as needed. He said that medication costs of the order of $90 per fortnight, although documentary material tendered shows that the actual cost is much less than that.
67 He also continues to see the psychiatrist, Dr Tint Way once every three weeks and finds the sessions helpful. He consults Mr Herrera every two weeks. Twice a week he has physiotherapy, which consists of a gymnasium program and exercises in a hydra pool but he doubts the benefits of these exercises which significantly increase the level of his pain. However, the treatment was recommended and arranged by the "case manager", appointed by Active and he feels obliged to continue to the end of the program
68 He told Mr Semmler that he was examined by Dr Roldan, a neuro-psychologist, on behalf of Soliman on 21 November 2005. Dr Roldan conducted neurological tests over some hours, in respect of which he said he participated to the best of his ability. He also agreed that he was examined by Dr Gibson, a plastic surgeon, and by Dr Bodel, an orthopaedic surgeon, on behalf of Chubs.
69 Mr Semmler took the Plaintiff, in some detail, through his complaints as at August 2007 when he gave evidence. He still has double vision when he looks to the left out of his left eye. Images overlap. He has an obvious scar from ear to ear across the top of his head. This scar, he said, is the subject of frequent comment and questioning which embarrasses him.
70 He suffers from headaches starting from behind his left eye which last some hours and occur a few times a week. One activity which produces them is operating a computer for more than about half an hour. The frequency and length of the headaches has been virtually unchanged since he left hospital.
71 He believes that his two eyes now differ in appearance as a result of facial surgery and that the appearance or shape of his chin, underneath which there is a scar, has altered. Generally, he said that his face appears "bloated", but was unable to say whether this was simply the result of a general weight gain.
72 He continues to have a feeling of numbness over much of his face which he said is "itchy and annoying". Sometimes he has severe facial pain from his jaw, extending into both cheeks and intermittently there is a twitching in his right cheek, which, he said is visible to observers and lasts about 2 hours. Episodes of facial pain, in frequency and severity, have also largely remained unchanged since he left hospital.
73 As indicated earlier, the Plaintiff lost a tooth in the accident, which was replaced with an implant. He said that he suffers "sore teeth" brought on by drinking anything hot or cold. He cannot chew "hard food" such as steak, apples, carrots, because "my jaw gets tired". Such food has to be chopped into small pieces for him. Sometimes after he has been eating and chewing his mandibular joints, "crack". He is unable to open his mouth as wide as before the accident. He had plastic plates inserted in his mouth following the accident, which were removed in August 2004. While he had the plates they were uncomfortable.
74 He said that his worst continuing problem is the restriction in movement of his right arm and elbow, which he cannot completely straighten, although it has improved since the surgery of September 2005. Apart from the fact that he cannot straighten the arm, the elbow is the site of pain and numbness, which he experiences once or twice a day and which lasts several hours. The pain seems to result from weather changes, from his elbow being bumped or knocked, and from writing. The nature and extent of this pain has been static for some time.
75 As a consequence of the disability in his elbow and right arm he is unable to perform carpentry work; he find it difficult to reach a comfortable sleeping position; he cannot extend his arm to reach for things; and he cannot cut his toe nails or carry anything heavy. There is also scarring which troubles him.
76 He has what he believes is a permanent deformity in his right little finger and a feeling of numbness which extends from that finger into his right arm. He said that he believes the grip of his right hand is not as strong as it used to be, although it is still stronger than the grip of his left hand. He assessed that his right hand grip is between 50% and 75% less than it was before the accident. As a consequence, he has leaned to use his left hand more, despite being right hand dominant.
77 There remains a degree of stiffness and lack of flection in his left wrist, which still contains plates and screws. He has scarring about 10cm long on the wrist and the grip of the hand is weak. The wrist is also the source of pain, "whenever I use it". Again, the condition of the wrist seems to have reached a plateau.
78 He described his second worst problem as his right knee. He cannot extend his leg or bend it without significant pain and as a consequence cannot bend, kneel or squat. He experiences pain in the knee after "a lot of walking, a lot of standing. Pretty much using it". If he sits for any time he has to stretch the leg and rub his knee as he said he did in the course of giving evidence. The knee aches when he is in bed at night, particularly in cold weather. It also gives way on occasions, which are unpredictable. He said that he can walk normally but after a while starts to limp.
79 He suffers intermittent pain in his lower back, which compares in intensity to the pain in his right arm and knee, particularly when it extends down his right leg. He first noticed this pain when he commenced to weight bear after being discharged from hospital. The present situation is that the pain, "comes and goes", but there is never a week when he does not experience it. He also, sometimes experiences pain from the centre of his shoulder extending into his neck.
80 He gave a deal of evidence about his attempts to rejoin the work force, such attempts being overseen by Active from its office at Liverpool. On the face of it, at least, it took its responsibilities quite seriously. Unfortunately, however, neither Active nor the Plaintiff through his own devices has been able to find suitable employment.
81 His contact with Active seems to have commenced with a vocational assessment on 21 March 2006, when he saw a Dr Girdler. Since then he has unsuccessfully applied for about 5 jobs a week. When asked whether he would like to be working now, he replied: