Smith v Canberra Labor Club [2005] ACTSC 121

Supreme Court of the ACT|2005-12-02|Before: Connolly J

1. There be judgment for the plaintiff in the sum of $449,039.00 with costs.

1. This is a claim for damages for personal injuries arising from an accident that occurred on the evening of 10 November 1998 when the plaintiff fell while leaving the defendant's premises which was known as the Canberra Workers Club (the Club), a licensed club facility in Canberra City. At the time of the accident the Club was operated by the defendant. The plaintiff, who was born in 1951, suffered from poliomyelitis as a child and, as a consequence, had longstanding bilateral lower limb paralysis. Despite this disability, he has been able to live a full and active life, and at the time of the accident was able to get about using callipers and Canadian crutches.

3. While these injuries were in themselves substantial, the plaintiff's case is that the consequences of the damage to his leg has been to very substantially reduce his mobility. It is the plaintiff's case, strongly supported by the medical evidence, that for a person who has sustained poliomyelitis, a long period of immobility following an injury such as this can lead to a very considerable loss of muscle tone in the upper body regions necessary to support a person on crutches and callipers. The nature of the childhood polio is that, for such a person, it can be impossible to recover the pre-existing muscle tone and condition, with the consequence that he will never again regain the threshold of strength necessary to move about independently on crutches and callipers. It is the plaintiff's case that, while before the accident he used a wheelchair at his workplace and occasionally for longer trips, he is now effectively wheelchair bound and has lost the ability to move about relatively freely on crutches and callipers. A consequence of this is that he is significantly impaired in the extent to which he can perform household tasks which he was able to perform before the accident.

4. The plaintiff was an impressive witness, and there was, quite properly, no attack at all on his honesty. He contracted poliomyelitis as a two year old in 1953, and as a consequence has had long-term bilateral lower limb paralysis, with a degree of spinal deformity. He attended a special school for children with polio in Sydney, where he learned to get about independently. The introduction of successful mass vaccination for polio in the mid 1950s means that such places are now no longer necessary, but of course polio was at the time a dreaded condition that could strike a person at any time.

5. The plaintiff attended the special school until Year 4, and then transferred to mainstream schooling. He repeated Year 4 because, he says, the academic standard was higher at his new school. He then continued his education through to matriculation. In 1967 he underwent significant surgery to correct his spinal deformity which involved inserting cables and screws to the lumbar spine. This was a successful procedure, and his mobility on crutches and callipers improved considerably.

6. He was admitted to Sydney University to study Arts/Law, and successfully completed his arts degree. He gave evidence that at that time arts subjects were presented at various lecture rooms scattered across the campus, but he had no difficulty getting about, even with a heavy, specially designed backpack for his books. For a time he regularly commuted by bus from Sydney's northern beaches to Wynyard and then made his way through the chaos of Wynyard to catch a second bus to the University.

7. Part way through his study he obtained clerical employment with the New South Wales Police Service, and he maintained this employment on graduation. In 1979 he moved from Sydney to take up a position as personal assistant to the Superintendent of the Albury Police District, and he and his wife lived on a rural residential one acre block in the Victorian countryside near Albury.

8. During this time he was clearly a very active man, with his work, his growing young family, and in his community and recreational interests. He enjoyed bushwalking, and became involved in a Riding for the Disabled Group, which lead to an involvement with trail development. A series of photographs from the family album were tendered, which showed the plaintiff engaging in many of these activities, particularly bushwalking with family and friends. His companions would take his pack on steeper sections of trails, but his ability to engage in these activities is impressive.

9. He says that he became increasingly interested in environmental issues. This lead to his involvement in early 1983 in public protests in the Franklin River region in Tasmania to oppose the proposed construction of a new dam. This involved camping out in very rough country. On another level, he began graduate studies at the Riverina Murray Institute of Higher Education in conservation and land management studies, which lead him in 1988 to leave the police service and join the Australian Public Service to take up a position in park management in the National Parks and Wildlife Service. The position was based in Kakadu National Park in the Northern Territory.

10. The plaintiff, his wife and three daughters, moved to Jabiru in 1988. His position was office based, but he was required to engage in regular field work, and in particular to accompany official park guests into the wilderness areas. Again, family photographs tendered show the plaintiff cheerfully embarking on walks into relatively wild country, or waving to the camera from vantage points at the top of quite steep walks. One photograph, taken in 1989, shows him rafting on an air-mattress down a waterway in the wilderness area which, he said, is now regarded as dangerous due to crocodile activity.

11. He says that after about five and a half years in Kakadu, the family decided to move to Canberra, primarily due to better educational opportunities for his then high school age daughters, and also because his wife had completed further study, and wished to take up employment beyond what was available as a park guide in Kakadu. The plaintiff says that he greatly enjoyed the lifestyle at Kakadu, and would have happily stayed, but recognised that as a family the opportunities in Canberra were greater.

12. In March 1994 he took up an administrative position in the central office of the Commonwealth Department of Environment and Heritage. In May 1996 he was promoted from the clerical grades to a position as a Senior Officer (now referred to as Executive Level 1) in the Management Branch of the Department.

13. The plaintiff says that at this time he would use a wheelchair at work because he was unable to carry files and the like around an office whilst using crutches, but that apart from the office he would generally get around on crutches. His wheelchair at the time was an older and heavier model, and not the type that could be easily folded into and out of a car. He says that this was sufficient for his needs, because he generally did not need to use the wheelchair.

14. The plaintiff has pleaded his case against the defendant on the basis that, as an occupier of premises open to the public, it failed to provide a safe system of entry or exit, failed to use proper equipment, failed to maintain a safe system of automatic doors, and failed to meet the requirements of the appropriate Australian Standard for the safe operation of sliding doors. The defendant argued that, on the evidence, the plaintiff has failed to establish liability.

15. The plaintiff's case on liability rests on his own largely uncontested evidence as to what actually happened on the night and a report from Mr IP Burn, a consulting engineer. Mr Burn attended the premises with the plaintiff and representatives of the defendant for the purposes of a view on 22 May 2000. Under instructions from the plaintiff, a member of Mr Burn's staff, using Canadian crutches, re-enacted the path the plaintiff took on leaving the Club. This process was video taped, and the tape was tendered and shown in court. There were three views shown of a person on crutches leaving the foyer of the Club through the automatic glass sliding doors and then turning to go down the disabled ramp, in the manner the plaintiff described in his evidence. On the second occasion, the film clearly shows the automatic sliding door closing as the person is moving through the doors, and the door striking the crutch, in broadly the same manner as described by the plaintiff.

16. Mr Burn, in his report and in his oral evidence, said that the proper operation of an automatic sliding door under the appropriate Australian Standard (which was in evidence as exhibit F) was that it should not close on any object larger than the size of a two year old child moving through the doors. The doors rely on ceiling mounted sensors to detect a person approaching the doors, and detectors using a photo electric beam parallel to the doors to detect a person coming through the centre of the doors who might otherwise be outside the zone of the ceiling mounted sensors. The Australian Standard states, entirely reasonably it might be thought, that "the function of safety detectors is to maintain the door in an open position whenever an object is within detector range". It is a requirement of the Australian Standard that an automatic door should operate so as to:

5.2(a) ...

(b) be held in the open position while any person or object remains in the plane of the safety detector(s) anywhere within the clear opening;

(c) commence closing no sooner that 1.0 s after a person or object has moved out of the detector zone or the plane of the doors, whichever occurs last;

17. I am satisfied that on the evening of this accident the door did not remain in an open position as the plaintiff, who would have been within detector range, made his way through the doors. I accept Mr Burn's evidence that a properly maintained automatic sliding door should not fail in this manner and that on the balance of probabilities the door closed on the plaintiff due to a maintenance failure, excessive wear, or a failure to properly clean the sensor detectors. Each of these scenarios, it seems to me, falls squarely within the pleaded particulars of negligence.

18. The defendant lead no evidence on the question of liability. It seems to me that I can be satisfied, on the balance of probabilities, on the basis of the evidence of the plaintiff and Mr Burn, and of the tape, that the door failed to operate to the required safety standards and that, on the balance of probabilities, this was due to a failure to properly maintain the doors. The nature of the plaintiff's case was, it seems to me, quite clear. It would have been open to the defendant to call evidence to show that it did have in place proper and appropriate maintenance arrangements. Schedules of visits by qualified technicians for regular servicing of the doors, and cleaning of the detectors, could well have satisfied the Court that the clear duty cast on the defendant to maintain these doors in a safe condition had been discharged. In the absence of any such evidence, however, I am satisfied that the accident occurred due to the negligence of the defendant occupier of the premises.

19. Although it is unnecessary for me to do so, it seems to me that it is open to me to draw an adverse inference from the failure of the defendant to lead any evidence going to maintenance of the doors. The evidence in the written report of Mr Burn dated 27 July 2000 (at 8), served in advance on the defendant in accordance with the Rules, was that -

To have reduced the risk of accident and injury to people entering/leaving the Canberra Workers Club it is necessary to ensure the automatic entrance doors and safety mechanism are functioning properly at all times. Regular inspection/testing combined with programmed parts replacement would assist in ensuring the risk of premature door closure is minimised.

Alternatively the operating mechanism can be adjusted to increase the time between opening and closing allowing the slowest identified customer more than ample time to proceed through the door before it closes.

20. This clearly placed the defendant on notice that failure to properly maintain and adjust the door mechanism was relied on in the plaintiff's case. The failure to call any evidence concerning the maintenance of the doors is said by Mr Purnell SC, for the plaintiff, to give rise to the inference in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 that any such evidence would not have assisted the defendant's case. The operation of this principle has recently been restated by the High Court where in RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620, Gaudron A-CJ, Gummow, Kirby and Hayne JJ state (at 632):

In a civil trial there will very often be a reasonable expectation that a party would give or call relevant evidence. It will, therefore, be open in such a case to conclude that the failure of a party (or someone in that party's camp) to give evidence leads rationally to an inference that the evidence of that party or witness would not help the party's case and that:

Where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

21. It seems to me that it is open to me to draw such an inference in relation to the maintenance of these doors.

22. I am satisfied that the accident occurred due to the negligence of the defendant in failing to properly maintain the automatic glass sliding doors.

23. I am satisfied that these heavy glass sliding doors at the main entrance to the Club were situated in front of a set of stairs leading from the road and footpath, and that adjacent to these steps there had been constructed a ramp to facilitate access to the entry level and the doors by persons with disabilities. I accept the evidence that this was signposted as the method of disabled access. Given this, it is, it seems to me, entirely foreseeable that persons with disabilities, including persons using crutches, would access the Club through these doors, and that a defect in the automatic door opening mechanism such that the doors would, contrary to appropriate standards, close while a person was going through them, create a clear hazard for such persons, above the general level of hazard for the general community.

24. It seems to me that the risk of injury was entirely foreseeable in accordance with well-established legal principles: The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1979) 146 CLR 40). It follows that the defendant is liable for the consequences of the accident.

25. I am satisfied that, prior to this accident, the plaintiff, despite his medical history of childhood polio and the need to use Canadian crutches and callipers, led a very active and fulfilling life, professionally and personally. He completed tertiary studies and post-graduate qualifications and has been engaged in full-time employment since completing his first degree. He is married and has raised three children and he engaged in a range or recreational and community activities. As Mr Purnell put it in his written submissions, in a manner entirely consistent with the evidence:

He has worked full-time in a range of jobs since about December 1972. This work has included work for about 5 ½ years in the extreme environment of Kakadu.

Despite his disabilities, the Plaintiff was able to lead an almost normal life in that, he had independent access to buildings, campsites, vehicles, toilets, his own kitchen and bathroom and was able to perform household chores, gardening, including heavy digging, and normal sexual activities. His recreational activities included camping, bushwalking and other travelling holidays.

The Plaintiff is not a man to complain about his difficulties and he has lived with a certain level of pain and disability for the great majority of his life.

While he mostly used Canadian crutches and callipers to mobilise with, the Plaintiff occasionally used a wheelchair at work and while undertaking larger shopping trips.

26. It is common ground that the frank injuries sustained in the fall would have been very painful. He was taken to hospital by ambulance, and remained in hospital for some 16 days, during which time he underwent an open reduction of his left knee and femur fracture with internal fixation using two screws. For the next six weeks he was bed-ridden and in a splint before he was able to commence physiotherapy in the middle of January 1999 to increase flexion in his knee. He was able to return to his workplace in May 1999 and has remained in employment with minimal time off work since. Shortly before the accident he had been appointed to act in a more senior position that subsequently became substantively vacant. Although he applied for promotion to this position, it was eventually filled by another officer who had been appointed to act in the plaintiff's place following the accident. It is his case that he has suffered a loss of employment opportunity due to the accident.

27. These would have been significant injuries to any person, but I am satisfied that in the plaintiff's case the consequences of the fracture to the leg and significant period of immobility have been permanent and significant. I am satisfied that the prolonged period of immobility has led directly and foreseeably to a loss of condition such that the plaintiff is permanently unable to recover his previous level of independent mobility and will now be more or less permanently dependent on a wheelchair for mobility.

28. The process by which this has occurred is well set out in the report dated 21 October 2005 of Dr R Brooder, consultant neurologist, in the plaintiff's case. Dr Brooder states:

The reason that Mr Smith became wheelchair bound as a result of the accident of 10 November 1998 is related directly to the prolonged period of immobility that had occurred over a period of 3-4 months following the accident. During this period of time there had occurred a significant loss of muscle bulk, power and conditioning in his upper limbs and particularly his left upper limb, which he was totally dependent upon for the effective use of the forearm crutches to maintain his independent mobility.

In support of my reasoning and my conclusions I would offer the following additional comments:-

(i) Prior to the accident of 10 November 1998 and over a period of more than 10 years Mr Smith's mobility had remained quite stable and he had remained independently mobile with the assistance of callipers and forearm crutches.

Immediately following the accident of 10 November 1998 and over a period of 3-4 months Mr Smith had remained immobile and predominantly on bed rest or dependant upon the use of a wheelchair for his limited mobility. It was during this period of time that his ability to manage the forearm crutches to assist with his independent mobility had deteriorated significantly and he was subsequently only able to stand for brief periods of time with the use of the crutches and callipers. It was during this period of time that there occurred a significant loss of upper limb muscle bulk, power and conditioning, which had resulted in his inability to effectively manage the forearm crutches. He had then remained unable to mobilise as previously.

This conclusion is also supported by the conclusion of Prof J G McLeod in his report of 30 March 2005 which states, "However I believe that he lost muscle bulk and power in the upper limbs as a result of his prolonged immobility following the accident" and in his further report of 21 June 2005 which states, "I believe that the prolonged immobilisation following his injury has contributed to increasing muscle weakness and is a factor in his inability to walk distances with crutches". There had then also occurred a marked loss of self-confidence and heightened anxiety over his risk of falling, which had further contributed to Mr Smith's loss of mobility.

29. I am satisfied that this passage well sets out the process of the plaintiff's disability. I find that, as a consequence of the immobility due to the accident, the plaintiff has lost his previous level of muscle strength which allowed him to mobilise with crutches and callipers. I accept Dr R Buckley's evidence that it is impossible for a person who has sustained childhood polio to recover this muscle strength.

30. Although Professor IG McLeod, neurologist, who reported in the defendant's case, accepted that immobility would have this consequence, he opinioned that the plaintiff would have come to this level of disability in any event due to a condition known as post-poliomyelitis syndrome. He said in his report dated 16 December 2003 that -

I think that it is more probable than not that he has the post-poliomyelitis syndrome. This condition is now well recognised and it is a late progression of muscle weakness including weakness of muscles which were not obviously affected by the poliomyelitis, many years after the infection. The cause of the condition is not known; it is most likely to be unmasking of subclinical damage which was not evident in the earlier years of life by the natural fallout of cells of the lower motor neurone in the spinal cord, but persistent viral infection has not been entirely excluded although it is less likely.

31. Professor McLeod acknowledged that a feature of this syndrome is that it involves a slow and steady progressive muscle weakness. Although he stated in his report that there was a "history of progression", I am satisfied that the plaintiff had had a steady level of functional ability until this accident, followed by a sharp and marked decline in muscle tone which all of the experts explain was as a consequence of prolonged immobility, and now there is a steady but reduced level of muscle tone. There is simply no evidence of what all the experts agree to be a central feature of this syndrome, being a steady progression in weakness over time. As Dr Brooder states in his report -

There is no evidence that prior to the accident of 10 November 1998 Mr Smith had been subject to any slowly progressive muscle weakness and there is no evidence that he has been subject to any additional slowly progressive muscle weakness over the further period of almost seven years since the time of the accident.

32. I am satisfied that, as a long-term polio survivor, the plaintiff has over many years been careful and attentive to his health needs. There were simply no medical notes suggestive of progressive muscle weakness before this accident.

33. It seems to me that, while Professor McLeod has postulated a theory that would ascribe a non-accident related cause to the plaintiff's present disability, this is not made out on the balance of probabilities. I am satisfied on the balance of probabilities that the immobility from the accident has caused a marked degree of muscle weakness, which is permanent, and that this has reduced his upper body strength to below the threshold for regular safe use of crutches. In his closing submissions Mr Weaver, for the defendant, quite properly conceded that the evidence did not establish a finding of post-poliomyelitis syndrome, and addressed me on the basis that (subject to his submissions on liability), the plaintiff fell for assessment on the basis that the accident was the cause of his present level of disability. The plaintiff acknowledged that he can occasionally use the crutches and callipers in a confined space, but that he has lost confidence in using them for general use. This, it seems to me, is entirely reasonable.

34. I therefore assess him on the basis that the accident has brought about a sudden and marked deterioration in his mobility. In submissions in relation to general damages, Mr Purnell, fairly in my view, stated that a starting point would be to consider the levels of general damages to be awarded when a person is confined to a wheelchair as a consequence of a frank spinal injury. He acknowledged, however, that the underlying polio needed to be taken into account, both in that the plaintiff has not gone from fully unhindered mobility to total reliance on a wheelchair, but from generally being able to mobilise on crutches with some use of a wheelchair, to predominant use of a wheelchair.

35. It is also necessary to consider, absent post-poliomyelitis syndrome, which I am satisfied can be excluded as a condition, the underlying likely progression of his long-term polio. There seems to be general agreement among the experts that the plaintiff was always at some risk of becoming wheelchair bound. Dr Brooder in his report again provides what seems to me to be a convenient summary when he states -

As a result of the severe muscle weakness involving his lower limbs and proximal right shoulder and upper limb consequent upon the residuum of his severe poliomyelitis, Mr Smith was always at a long- term risk of eventually becoming wheelchair bound. Age-related degenerative changes and muscle atrophy could potentially eventually result in him becoming wheelchair bound at some stage in the future.

36. This process is certainly not inevitable, and Dr Buckley, who maintains an active practice treating long-term polio patients, said that he has two patients in their 70's and 80's who are still able to ambulate without the use of a wheelchair. The opinions of the experts varied on this question, with Associate Professor R Jones, for the defendant, stating that, in his view, the plaintiff would have come to his present state by now regardless of the accident, and Drs Buckley and Brooder expressing the view that his condition may not have deteriorated to the point that he became wheelchair bound until the plaintiff was in his 60's, if at all. Mr Purnell accepted in his submissions that this must be taken into account.

37. It seems to me that in relation to general damages, I should assess the plaintiff on the basis that the significant frank injuries to his legs lead to a period of prolonged immobility which has had the direct consequence of depriving him of his previous high level of mobility and independent living, and brought him to the near full-time use of a wheelchair. Although it is common ground that he had significant long-term effects from his poliomyelitis, and there was evidence of a degree of longstanding osteoarthritis, which would point towards an earlier onset of loss of mobility, against this, I must have regard to the plaintiff's extraordinary level of determination and activity. This plaintiff was not just able to ambulate on crutches, he was able to bushwalk in rough country, undertake heavy gardening tasks, and maintain a very active lifestyle including working in remote locations. I am satisfied that he would have pushed himself to maintain that level of mobility for as long as possible. While eventually time would have won out, I am satisfied, on the balance of probabilities, that, but for the accident, he would have maintained his pre-accident level of mobility and independent living for the balance of his ordinary working life, that is, until his mid 60's.

38. It seems to me that this finding is consistent with the range of general damages suggested by Mr Purnell in his submissions on the plaintiff's behalf. Taking all of the evidence into account, I award general damages in the sum of $170,000. I would attribute $70,000 of this to the past (taking into account his general life expectancy, the likely eventual onset of reduced mobility, and the high levels of pain and distress during the immediate aftermath of the accident), generating interest of $9,850.

39. There was agreement between counsel that the claimed sum for past out-of-pocket expenses in the sum of $38,766 was appropriate, and I award this sum, which includes interest for those amounts paid by the plaintiff.

40. In relation to future out-of-pocket expenses, counsel for the defendant acknowledged that claims for future wheelchair expenses in the sum of $12,500 and for special cushions for wheelchair use of $4,800 were appropriate. The plaintiff made a claim for home modifications, car modifications and special home equipment in the total sum of $99,959. While much of this was not contentious, being acknowledged as reasonable by expert reports on future care needs commissioned by both the plaintiff and defendant, the defendant did take issue with aspects of the home modification claim going to full air-conditioning of the home and a buffer for future modifications should the plaintiff decide to move in the future. It does seem to me that while air-conditioning for the plaintiff's bedroom is an appropriate accident-related need which must sound in damages, it does not justify full air-conditioning of the home, particularly for bedrooms of other family members, and I think that it is reasonable to adjust this sum. I am also not satisfied, given my findings about the likely long-term prognosis absent the accident, to make a contingency for eventual modifications to a retirement residence as a responsibility of the defendant.

41. The defendant also took issue with the long-term medication costs. While the bulk of this can be fully justified, it does seem to me that it would be appropriate to make an adjustment for contingencies of somewhat more than the conventional 15 per cent to fully reflect the medical evidence as to increasing long-term needs arising from the polio. Taking all of the evidence into account, it seems to me that an award of $85,000 is appropriate, and I award this sum.

42. Past wage loss was claimed on the basis of a definite loss of the acting position that he had to relinquish following the accident, in the sum of $975 which is not disputed, and a claim for $50,780 which is the difference between his actual wages and the salary he would have enjoyed had he been successful in his application for promotion in 1999. There is then an ongoing future loss based on the difference between his present salary and the higher level to normal retirement age.

43. It seems to me that the evidence does not establish that, but for the accident, he would have achieved promotion, and indeed it does not establish that he will not achieve promotion in the future. It is clear that the plaintiff was held in high regard by his employer. His former Branch Head and Section Head both gave evidence that he was so regarded, and would have been suitable for promotion. It is clear from his employment record that he had been given the opportunity to act in higher positions before the accident, and I accept the evidence that when a short-term vacancy occurs, the position is filled by the best available person. I note that in the year shortly before the accident the plaintiff had been seconded to work on a Forestry Policy task force in the Department of the Prime Minister and Cabinet - clearly a position that indicated that he was well regarded.

44. I accept that, had the plaintiff been able to continue to act in the more senior position, his chances of securing the promotion would have been improved. The evidence of his superiors, however, was that nothing is ever guaranteed and all promotions are considered on merit. In the event, the plaintiff applied for that position, but the person who was acting in the position was promoted. While he is now more reliant on a wheelchair, he acknowledged that he used his wheelchair widely at the workplace in the past, and it was also acknowledged that it would be unlawful for his employer, a Commonwealth Government agency, to discriminate in a promotion decision on the basis of his disability.

45. Mr Weaver submitted that the plaintiff's skills in the workplace remain the same after as before the accident, and that accordingly there has been no economic loss shown, save for the small actual loss of the fixed acting appointment that he was required to relinquish. While I accept that his skills as a senior officer remain, and being mindful that his employer would act appropriately in relation to his disability, it seems to me that his increasing reliance on a wheelchair and loss of mobility have had and will have an ongoing impact. He was previously able to travel with little restriction, and indeed some of the photographic evidence showed him engaged in presenting a training program on Norfolk Island, including a long walk to the highest point on the Island. His difficulties with airline travel and accommodation (he is still able to self- care in personal hygiene, but with more difficulty, and requiring wheelchair accessible facilities) will impact on the range of jobs that he would be able to apply for. I would award the sum of $50,000, inclusive of interest for past and future economic loss, being both wage loss and loss of superannuation.

46. It was common ground that the plaintiff required a high level of assistance from his wife in the immediate aftermath of the accident, and that the ongoing reduction of mobility had an ongoing impact on his care needs. Mr Purnell has claimed this on the basis of an ongoing need for six hours additional assistance each week. It seems to me that this is consistent with the medical evidence, and the evidence of the plaintiff and his wife, who impressed me as giving their evidence in an honest manner and without embellishment, and indeed the contrary was never suggested by Mr Weaver. I find that due to his loss of mobility the plaintiff relied (and continues to rely) on his wife to do much of the garden work that he was previously able to do, as well as normal home activities, including preparation of snacks and meals. I award the sum as claimed for past Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, of $36,975. I have adopted a present rate of $17 an hour for the past, thus taking inflation over seven years into account and so no interest should be awarded on this sum.

47. In relation to future loss, Mr Purnell acknowledged, fairly, that the out-of-pocket expenses which will go to home modification will mean that the plaintiff will achieve a greater degree of independence in relation to use of the kitchen, and so the ongoing need for reliance on his wife will reduce by a notional amount of 30 per cent. It seems to me that this is entirely appropriate, and I award the sum for future loss, as claimed, of $57,473.

48. This amounts to an award of damages of $461,053 calculated as follows:

Griffiths v Kerkemeyer for the future $ 57,473.00

49. I order that there be judgment for the plaintiff in the sum of $449,039.00 with costs.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Counsel for the plaintiff: Mr FJ Purnell SC with Mr S Hausfeld

Solicitor for the plaintiff: Maliganis Edwards Johnson

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Cases Cited (4)