Van-Der Sluice v Display Craft P/L

Liability 6 In the further amended statement of claim, the plaintiff alleges that the plaintiff's injuries were caused by reason of breach of duty by the defendant as employee and the negligence of its servants or agents. The particulars of negligence are: failed to devise, install and maintain a safe system of work; failed to provide adequate assistance to the plaintiff in the performance of his duties; failed to provide a proper and safe means of installing the overhead display; failed to provide proper equipment to the plaintiff and failed to adequately instruct the plaintiff in the performance of his duties. 7 Further the plaintiff alleges that by an agreement both oral and in writing dated 11 October 1996 (the contract) the plaintiff agreed for consideration to perform visual merchandising and/or display tasks for the defendant at the defendant's direction. The plaintiff alleges that it was an implied term of the contract as a matter of law that any materials and equipment including the ladder which was supplied by the defendant would be safe and proper for the purpose to which they were to be put. The plaintiff puts its case on liability in three ways firstly, the plaintiff was an employer; secondly, that if the plaintiff was a contractor the duty did not change significantly from that owed to an employee; and thirdly, in either event, the plaintiff was owed a duty of care because of the pre-existing knowledge of his collapse on 11 October 1996.

8 The defendant denies liability and alleges that by a contract in writing dated 11 October 1996, the defendant engaged the plaintiff as an independent contractor to carry out work as detailed in installation schedules provided to the plaintiff from time to time by the defendant. The defendant asserts that there was no duty of care as employer to an employee, if there was a duty of care it has not been breached even if it had, causation has not been proved.

The events giving rise to the signing of the agreement dated 11 October 1996 9 The business was started by Tim and Michael Clarkson's great grandfather. Tim Clarkson was the client services director. Michael Clarkson joined the family business in 1995 and is the financial controller. They both gave evidence and were cross examined. Most of their evidence was consistent with the plaintiff's version of events. In September 1996 the plaintiff arrived back in Australia from an overseas trip. On 14 September 1996 the plaintiff telephoned Tim Clarkson of Chas Clarkson (the defendant) and asked if there was any work available. Subsequently the plaintiff attended a meeting with Mr Tim Clarkson in his office at Camperdown. Tim Clarkson outlined the proposed job which would be undertaken by the plaintiff. It was similar to the job he undertook in previous years installing Christmas decorations in shopping centres and clubs. However, for the 1996 year Mr Tim Clarkson wanted the plaintiff to work on a salaried basis because the defendant would bear the responsibility for employing and training staff. 10 At a further meeting attended by the plaintiff and Tim and Michael Clarkson the plaintiff was made an offer of an employment similar to that contained in a document entitled "Employment Officer Instalment Supervisor" (Ex 8). It offered a base salary of $600 a week for normal 38 hour week, overtime, motor vehicle expenses, superannuation, holiday pay and bonuses, that is the plaintiff was being offered employment as an employee of the defendant. 11 The plaintiff's recollection is that he told Mr Clarkson that he was not going to work for that sum of money, and that Mr Tim Clarkson replied that he should go away and think about what he wanted. According to the plaintiff within a couple of days he spoke to Mr Tim Clarkson and indicated that he wanted to be paid $35 per hour. The hourly rate was then the subject of negotiation. The plaintiff told either Tim or both Tim and Michael Clarkson that he wanted to be able to carry out other work such as some work with Barry Moore. The Clarkson brothers agreed that the plaintiff could be engaged on this basis if it did not affect the defendants' schedule. The plaintiff and defendant then agreed to an hourly rate of $25 or $26 per hour. At the time of this conversation the plaintiff did not sign any documents. Mr Tim Clarkson, did however tell the plaintiff that he had to remove his assortment of earrings and chains. He was also instructed to wear a Chas Clarkson T-shirt on the job. Michael Clarkson concluded the meeting by stating that they needed to have something in writing to distinguish the arrangement from that of an employee. He drafted a document to reflect the agreement. 12 Michael Clarkson also recalled that at this meeting he told the plaintiff that as a contractor it was unlikely that he (the plaintiff) would be covered by their workers compensation policy so he should consider taking out some sort of insurance to protect himself. He also recalled telling the plaintiff that he would not receive holiday pay, sick pay or superannuation. The plaintiff told Michael Clarkson that he either already had a policy in place or that if he did not have a policy it was his (the plaintiff's) risk and he would get cover. 13 In the future years Mr Clarkson envisaged that the plaintiff would take over the whole Christmas project. At some time before the contract was signed the plaintiff was told by Tim Clarkson that the following year he (Tim) wanted to go back to the contracting arrangement as before where the plaintiff would be responsible for employing and paying staff. 14 In September 1996, the plaintiff attended the offices of the defendant. The plaintiff and an employee of the defendant interviewed a series of people for job selection. The successful applicants were to assist in putting up the Christmas decorations in the shopping centres and clubs. There were two teams selected each consisting of eight people. The plaintiff was to supervise one team and Dean Geyer was to supervise the other team. On 11 October 1996 he was given a document to sign (Ex C). Michael Clarkson typed the words "t/as Art of Display" under the plaintiff's name, but was not present when this document was signed and the words were liquid papered over. 15 The document reads as follows: "CHAS CLARKSON INDEPENDENT CONTRACTOR AGREEMENT As an Independent Contractor there is no entitlement to Holiday or Sick Leave and superannuation contributions. As a contractor you are free to work elsewhere provided you fullfill (sic) your obligations with us as detailed in the installation schedule. You will also be required to provide your own equipment and transport where necessary. You will be paid on presentation of a detailed business invoice and will not be subject to the P.A.Y.E provisions. The contract may be terminated by Chas Clarkson without notice. As an Independent Contractor you are able to employ others to fullfill (sic) the contract so long as the project is completed within the allotted time frame, cost budget and to the standard required. As an independent contractor you will not be covered by our Workers Compensation policy. Any person you engage to work for you will not be covered by our Workers Compensation Policy either and you will need to consider taking out a Workers Compensation policy to cover this situation. Your remuneration will be as follows: 1. $26.50 per hour payable for actual time spent on installations. 2. You will receive a $2,000 bonus if the projects you are controlling are completed within the allocated labour cost budgets. 3. If the projects are completed under budget you will receive an additional bonus equal to 50 per cent of the cost saving achieved. 4. For your time spent on preparatory work for the Sydney Casino you will be paid $17.00 per hour. For time on installation of the Casino decorations you will be paid $20.00 per hour. I Agree to the above Terms and Conditions

Signature ……………………. Ben Van Der-Sluice (sic) Dated: 11.10.96" 16 On 10 October 1996 the day prior to signing the above contract the plaintiff completed an application for reinstatement of his policy with the insurer, National Mutual. On that application form the plaintiff wrote that his current occupation was visual merchandiser and that he worked 40 hours as a contractor. In relation to the question "Are you covered by workers compensation?" the plaintiff ticked the "no" box and stated that he was entitled to nil days sick leave. He stated that he did not have another occupation but was a contractor for Chas Clarkson doing their visual merchandising. The plaintiff was given an installation and dismantle (I & D) schedule of the works that he had to complete. It listed the location of the jobs and the time that was to be allocated to that job. 17 On 11 October 1996 the plaintiff also attended a training session. None of the employees recruited by the defendant had prior experience in visual merchandising except for a female employee. Dean and the plaintiff had to train the new recruits and prepare for the Sydney Casino job. It was anticipated by both the plaintiff and defendant that the plaintiff would be working 50 to 60 hours per week. The plaintiff was aware from previous experience that he would be expected to work 12 to 15 hours per day 7 days per week. The plaintiff gave evidence that he knew he would not have time to be employed by anyone else except that the schedule provided the plaintiff with five free days. If a job ran over the scheduled time or further jobs came in Tim Clarkson had intended that the plaintiff would be available to do this work. This was understood by the plaintiff. The only equipment which the plaintiff took to those scheduled jobs was a tool box. In the plaintiff's tool box was a tack hammer, wire cutters and a staple gun. The plaintiff used public transport to get to each job. 18 Prior to installing the Christmas decorations an employee of the defendant, known as "Tim's offsider" would deliver to the site the hooks, balls and the ornaments for trees. Tim Clarkson gave the plaintiff directions such as where things had to be positioned, the quantities of the sets of lights to be placed on objects, right down to the number of figurines to be placed on each tree. There were a certain number of decorations allowed per tree and per garland. Tim Clarkson's practice was to attend the site on the first day of the job and discuss with the supervisor what had to be done. He also visited the site from time to time to check that the job was progressing satisfactorily. 19 Mike Clarkson offered to prepare the invoices for the plaintiff as the plaintiff did not have a computer or the means to do so. The plaintiff gave evidence that although he never received a copy of the invoices, he received payment for the jobs he completed. There were three invoices (Ex 9) (t 72), one of which Michael Clarkson prepared after the accident. The prior two invoices were approved by the plaintiff, so the plaintiff's memory of not receiving the invoices was incorrect. 20 On 11 November 1996 Michael Clarkson completed an employer's report of injury. He stated that the plaintiff was not a direct employee but a contractor who was deemed a worker under the act. Payments to be included in their annual declaration. (Ex H). It recorded that the plaintiff whilst applying decorations on awnings fell from the top of a 12' ladder. He noted that the claim was bona fide. 21 In a letter dated 18 November 1996 to Employers Mutual Indemnity (Workers Compensation) Ltd, Michael Clarkson wrote: "…Mr Van-Der Sluice was engaged by our organisation on 4th October 1996 to install Christmas decorations at our clients premises. The period of his engagement was to mid January 1997 and during this time he would be working between 50 & 60 hours per week. Mr Van-Der Sluice was engaged as a contractor and charged us $26.50 per hour. We consider that he is a deemed worker under the Workers Compensation Act 1987, for the following reasons:- 1. We instructed him how to carry out the work. 2. He was required to perform the work personally. 3. We had control over the manner in which the work was performed and when it was carried out. 4. He did not supply any materials or equipment. 5. He was paid on the submission of a weekly invoice. 6. He worked alongside with and under similar conditions to our other employees." 22 In the defendant's payroll activity summary (Ex 10) the plaintiff was shown as an employee once he received workers compensation payments. Michael Clarkson's explained that the plaintiff's workers compensation payments had to be treated this way because the plaintiff needed a group certificate. I accept this explanation. 23 On 27 May 1997 (after the accident), in a claim form submitted to National Mutual completed and signed by the plaintiff he stated that he was self-employed and that he was contracted to Chas Clarkson Pty Limited (Ex 5).

(1) Breach of contract 24 The defendant submitted that the law of contract has primacy and that tort is the default position. This proposition is not correct. The defendant submitted that it is the contract that defines the relationship of the parties. According to the defendant there is no reason why the contract should not declare completely and exclusively what are the legal rights and obligations of the parties in relation to their contractual duties and the parties were free to negotiate their rights. 25 In Astley & Ors v Austrust Limited (1998-99) 197 CLR 1 in a joint decision of the High Court their Honours agreed with the decision of the House of Lords in Henderson v Merrett Syndicates Ltd [1995] 2 AC 145. The essence of that decision was that where concurrent liability in tort and contract exists, the plaintiff has the right to assert the cause of action that appears to be the most advantageous to the plaintiff in respect of any particular consequence. The passage from Henderson quoted by the High Court in Astley is as follows:

"It is however my understanding that by the law in this country contracts for services do contain an implied promise to exercise reasonable care (and skill) in the performance of the relevant services; indeed, as Mr Tony Weir has pointed out in the nineteenth century the field of concurrent liabilities was expanded since it was impossible for the judges to deny that contracts contained an implied promise to take reasonable care, at the least, not to injure the other party'. My own belief is that, in the present context, the common law is not antipathetic to concurrent liability, and that there is no sound basis for a rule which automatically restricts the claimant to either a tortious or a contractual remedy. The result may be untidy; but, given that the tortious duty is imposed by the general law, and the contractual duty is attributable to the will of the parties, I do not find it objectionable that the claimant may be entitled to take advantage of the remedy which is most advantageous to him, subject only to ascertaining whether the tortious duty is so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded." 26 In Astley at paragraphs 47 and 48 at 22 the High Court stated: "History and legal principle combine to indicate that the conclusion of the House of Lords in Henderson is the correct view. The implied term of reasonable care in a contract of professional services arises by operation of law. It is one of those terms that the law attaches as an incident of contracts of that class. It is part of the consideration that the promisor pays in return for the express or implied agreement of the promisee to pay for the services of the person giving the promise. Unlike the duty of care arising under the law of tort, the promisee in contract always gives consideration for the implied term. And it is a term that the parties can, and often do, bargain away or limit as they choose. Rather than ask why the law should imply such a term in a contract for professional services, it might be more appropriate to ask why should the law of negligence have any say at all in regulating the relationship of the parties to the contract? The contract defines the relationship of the parties. Statute, criminal law and public policy apart, there is no reason why the contract should not declare completely and exclusively what are the legal rights and obligations of the parties in relation to their contractual dealings. The proposition that, in the absence of express agreement, tort and not contract regulates the duty of care owed by a professional person to a person hiring the professional services is inconsistent with the historical evolution of professional duties of care which, until recently, could be the subject of action only in contract. Moreover, the conceptual and practical differences between the two causes of action remain of "considerable importance". The two causes of action have different elements, different limitation periods, different tests for remoteness of damage and, as will appear, different apportionment rules.

The theoretical foundations for actions in tort and contract are quite separate. Long before the imperial march of modern negligence law began, contracts of service carried an implied term that they would be performed with reasonable care and skill. Persons who give consideration for the provision of services expect that those services will be provided with due care and skill. Reliance on an implied term giving effect to that expectation should not be defeated by the recognition of a parallel and concurrent obligation under the law of negligence. The evolution of the law of negligence has broadened the responsibility of professional persons and requires them to take reasonable care and skill even in situations where a contractual relationship cannot be established. But given the differing requirements and advantages of each cause of action, there is no justification in recognising the tortious duty to the advantages justification in recognising the exclusion of the contractual duty." 27 While on the topic of Astley, the defendant has claimed that the plaintiff's damage should be reduced for contributory negligence. The apportionment legislation does not apply to claims for breach of contract. - see Astley para 89. 28 By entering into the contract dated 11 October 1996, the parties intended that the plaintiff would be employed by the defendant as an independent contractor to carry out visual merchandising work for the defendant. The contract is headed "Independent Contractor Agreement". It stipulated that as an independent contractor he was not entitled to holiday and sick pay no superannuation contributions and that he would need to take out a workers compensation policy. He was to be paid by way of invoice and not be subject to PAYE provisions. The language of the contract is clear. The plaintiff was engaged by the defendant as an independent contractor. As such, there was an implied term of the contract that the defendant would take reasonable care not to injure the plaintiff.

(2) In tort was the plaintiff an employee or an independent contractor ? 29 In Boral Roof Tiles Limited v O'Brien (NSWCA, 2 December 1994, unreported) it was held that the relationship between Boral and the plaintiff was not one of employer/employee, and the degree of control reserved to, or exercised by Boral was not decisive. While the degree of direction and control that a person who engages another can exercise over the latter is an important and sometimes decisive circumstances, other considerations may prevail. In Hetherington v Mirvac Pty Ltd & Ors [1999] NSWSC 443, Wood CJ helpfully summarised the cases on this issue. I have reproduced some relevant passages from his Honour's judgment. "Similarly, in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, Mason J said, at 24: '...the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v Federal Commissioner of Taxation; Zuijs' Case ; Federal Commissioner of Taxation v Barrett (1973) 129 CLR at 401; Marshall v Whittaker's Building Supply Co (1963) 109 CLR 210 at 218. Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee.' Wilson and Dawson JJ said, at 35: 'The classic test for determining whether the relationship of master and servant exists has been one of control, the answer depending upon whether the engagement subjects the person engaged to the command of the person engaging him, not only as to what he shall do in the course of his employment, but as to how he shall do it: Performing Right Society Ltd v Mitchell and Booker (Palais de Danse) Ltd (1924) 1 KB 762. The modern approach is, however, to have regard to a variety of criteria.' Their Honours added, at 36-37: 'In many, if not most cases it is still appropriate to apply the control test in the first instance because it remains the surest guide to whether a person is contracting independently or serving as an employee. That is not now a sufficient or even an appropriate test in its traditional form in all cases because in modern conditions a person may exercise personal skills so as to prevent control over the manner of doing his work and yet nevertheless be a servant: Montreal v Montreal Locomotive Works (1947) 1 DLR 161 at 169. This has led to the observation that it is the right to control rather than its actual exercise which is the important thing (Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 at 571) but in some circumstances it may even be a mistake to treat as decisive a reservation of control over the manner in which work is performed for another."' The other indicia of the nature of the relationship that they identified as relevant were as follows: 'Those suggesting a contract of service rather than a contract for services include the right to have a particular person do the work, the right to suspend or dismiss the person engaged, the right to the exclusive services of the person engaged and the right to dictate the place of work, hours of work and the like. Those which indicate a contract for services include work involving a profession, trade or distinct calling on the part of the person engaged, the provision by him of his own place of work or of his own equipment, the creation by him of goodwill or saleable assets in the course of his work, the payment by him from his remuneration of business expenses of any significant proportion and the payment to him of remuneration without deduction for income tax.'" 30 It was the defendant who commanded not only as to what the plaintiff should do in the course of his employment but how he should do it. The defendant had a large degree of control over the plaintiff. The control extended to minute details such as the number of figurines to be placed on the Christmas trees and number of decorations to be placed upon each garland. It was the employer who had the right to control the plaintiff, although the plaintiff in turn had the right to control the members of his team. If the traditional and classic test was the sole determinant as to whether the plaintiff was an employee or independent contractor, then the plaintiff would be considered at law to be an employee of the defendant. 31 Additional factors which indicate the plaintiff was an employee are that the plaintiff had to wear a Chas Clarkson T-shirt while on the job and remove his body piercing. Other than the plaintiff's toolbox, the defendant supplied the equipment required for the job. The plaintiff did not create goodwill or saleable assets in the course of his work. He did not have to pay business expenses as the other workers' wages were paid for by the defendant. The defendant had the right to dismiss the plaintiff without notice. While the hours of employment were not stipulated, the plaintiff was obliged to comply with the schedule. The employer dictated which specific days the plaintiff was expected to attend. 32 Other relevant factors which should be taken into account are that the plaintiff was not entitled to holiday, sick pay nor any superannuation contributions. He was not subject to PAYE provisions. He was paid when he rendered an invoice. Nor was he covered by a workers compensation policy. However, more importantly and decisively the parties understood that the plaintiff was employed on the basis of an independent contractor. This arrangement was initiated by the plaintiff who wanted to be employed outside the scope of an employee. It was in furtherance of the plaintiff's belief that he was an independent contractor that he arranged disability insurance cover. From the defendant the plaintiff had sought the freedom to undertake other jobs albeit in a limited time frame and had negotiated payment of a higher hourly rate on the basis that he was an independent contractor. After taking all these indicia into account I am satisfied on the balance of probabilities that the plaintiff was an independent contractor. 33 Even is the plaintiff was an independent contractor, he submitted that the duty of care of essentially the same. The plaintiff referred to a passage from Brodribb, namely: "There is no reason for confining the obligation to provide a safe system of work to an employer. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of work, and where there is a need to give directions as to when and where the work is to be done and to co-ordinate the various activities, he has an obligation to provide a safe system of work. The fact that they are not employees or that he does not retain a right to control them in the manner in which they carry out their work should not effect the existence of any obligation to provide a safe system." 34 The defendant sought to distinguish this passage on the basis that the work carried out did not rely on the interdependence of activities and the need for co-ordination by the defendant. In the case before me, there was a risk arising from the nature of the work and there was some need for co-ordination by the defendant in relation to the delivery of the decorations. But the activities where not interdependent as in Brodribb. Nevertheless, it is my view that the defendant, in tort had a legal obligation to provide the plaintiff with a safe system of work. As previously stated, in contract the defendant had a duty to take reasonable care not to injure the plaintiff. These duties are not inconsistent. - see Astley. I shall return to this topic after dealing with the plaintiff's third basis upon which the defendant is liable to the plaintiff, namely, that the plaintiff was owed a duty of care because of the defendant's pre-existing knowledge of his collapse on 11 October 1996.

(3) First epileptic seizure prior to the accident 35 According to the plaintiff, prior to going overseas in 1996 he was not experienced in drug taking but pursued that activity in England. He took ecstasy for a short period of time. He tried heroin twice but said that he did not inject himself. The night prior to commencing work in England the plaintiff attended a party. He took some ecstasy tablets together with alcohol at the hostel. He blacked out. He was taken by ambulance to hospital where he was observed for two hours. The plaintiff attributed this blackout to his drug taking so he decided to end his journey of experimentation. The defendant had never been given a history of these events.

Second epileptic seizure prior to the accident 36 On 11 October 1996 the plaintiff was supervising the training session. He was untangling and testing some pea Christmas lights when he blacked out. The plaintiff was taken to Royal Prince Alfred hospital where he was placed under observation for a couple of hours.

37 On 12 October 1996 the next day, the plaintiff gave evidence that he felt fine and had no problem performing his work. He helped Dean's team to prepare for the Centrepoint installation. Three days after the seizure the plaintiff attended to the preparatory work on site at the Imperial Arcade. Michael Clarkson spoke to the plaintiff and asked him how he was. The plaintiff replied that it could not be determined whether he had been electrocuted and he was undergoing some tests. Michael Clarkson considered that it was not his responsibility to tell him whether or not he should climb ladders. According to Mr Clarkson, as the plaintiff was an independent contractor it was up to him to assess whether he should be climbing ladders "not us". 38 In these circumstances, it is my view the defendant has discharged its duty of care owed to the plaintiff when it became aware that the plaintiff may have suffered an electric shock. After the plaintiff became unconscious an ambulance was called and the plaintiff was taken to hospital. The plaintiff returned to work the next day and carried out his work in a normal manner. Three days after the accident the plaintiff told his employer he felt fine. The plaintiff also said that although it could not be determined whether he had been electrocuted, he was undergoing some tests. The day the plaintiff blacked out the defendant had the wiring checked by an electrician. Nothing untoward was found. The defendant was entitled to rely on the plaintiff's assurance that he was fine and the observations made by Tim Clarkson that the plaintiff had continued to carry out his work properly after he had been hospitalised. It was up to the plaintiff to decide whether or not he was fit to climb the ladder. There is no breach of duty of care so this part of the plaintiff's claim fails.

The accident 39 On 27 October 1996 the plaintiff and his team carried out the installation work at the Imperial Arcade. The job was due to be completed on that day. Tim Clarkson told the police that it had been raining. He gave evidence that he reached this conclusion because there was a pool of water where the accident occurred. He later found out that the pool of water was created by a cleaner trying to clean the blood away. No other witness gave evidence that it had been raining. I find that it had not been raining at the time of the accident. The ground where the plaintiff was working was not wet due to rain water. 40 The previous day, namely on 26 October 1996, the ceiling hooks, balls and decorations were delivered by Tim Clarkson's offsider Mathew Shaw. After Mr Shaw had opened the storeroom on the Pitt Street level of the Imperial Arcade, the plaintiff took out a ladder that he had used in previous years. It was a 12' aluminium ladder with steps on one side and two stiles holding it together on the other side. There were cross beams holding the stiles together. Tim Clarkson gave evidence that the ladder belonged to the defendant. 41 An employee Joris Smink who was part of the plaintiff's team, was placing Christmas garlands flush against the awning under the barge board on the Pitt Street entrance to the arcade. (see Ex D). In previous years the garland was looped onto the awning. In the 1996 year the garland was placed flush against the awning. To perform this task more hooks were required to be inserted than had been required in previous years. The ladder had to be moved constantly. The ceiling hooks had to be placed on the stepped part of the roof so that the garland could be hung. Mr Smink had carried out this procedure on the lower part of the awning and on the stepped part of the awning. He felt uncomfortable carrying out this task at a higher level and chose not to continue as he thought it was dangerous. 42 The plaintiff decided to personally undertake the work that Mr Smink thought was dangerous. The plaintiff was obliged to carry out the work at height and place the hooks in the higher part of the awning. To carry out this task he climbed the ladder. He placed his feet on the next rung down from the top of the ladder to affix the hooks into the stepped part of the roof overhead. The plaintiff reached up full stretch with one arm and leant forward to clip the hook in. He does not remember whether it was his left or right arm. (t 29.35). He then had to affix the garland. After inserting a number of hooks the plaintiff would descend the ladder and move it along the ground in the direction in which he was working. He would then ascend the ladder in order to place the hooks into the awning. To reach full stretch he could use only one side of his body. He was using one hand to clip the hook in. He would use either his right or left hand to position the hooks depending how far along the stepped awning he could reach. 43 The plaintiff was facing the Imperial Arcade from the Pitt Street Mall entrance on the left hand side. Just prior to falling the plaintiff was standing on the second top step of the ladder. The top of the ladder connected with the bottom of his shin. He can remember reaching out but cannot recall whether or not he put the hook in the slotted part. (t 31). The plaintiff has no recollection of his fall or lying on the ground. His next recollection is being in hospital. 44 Ms Kate Hancock gave evidence. She was a very impressive witness. On the day of the accident she was a Year 11 school student who was shopping in the Pitt Street Mall. She was walking to Town Hall station and remembered walking past a man on a ladder. She says that she was about 20 metres away and for some inexplicable reason turned around. From the corner of her eye she saw the man fall from the ladder. At the time of the accident Ms Hancock did not see anyone standing at the base of the ladder. She observed that the ladder was a normal sized ladder with steps on one side. 45 She immediately ran over to plaintiff who was lying on the ground in a semi-conscious state. When she came up close to him he was awake but was groggy. He was moving as though he had bumped his head. She spoke to him but he did not reply. When about 30 seconds had passed he lapsed into unconsciousness. Ms Hancock screamed to a security officer to call for an ambulance. She inspected the plaintiff to see if he was dead, alive or unconscious. This time the plaintiff was absolutely still and there was no jerking or movement in his body whatsoever. 46 Ms Hancock started screaming for help. There was blood everywhere. It seemed that for a long time although there were people around no one came forward to assist. She was holding the plaintiff's hand and finally two people came forward and told her that the plaintiff was dead. She said that they should try to resuscitate him. They replied that he was dead. She said that it was not good enough and they should at least try. She commenced doing CPR by pressing down on the plaintiff's chest while the man commenced doing mouth to mouth resuscitation. After about a minute the plaintiff regained consciousness. 47 Ms Hancock said to him "What is your name?". He replied "My name is Ben". He responded in a coherent manner and then tried to get up. Ms Hancock successfully talked to him and persuaded him not to get up. She remained with the plaintiff for about 10 minutes until the ambulance arrived. The plaintiff was groggy during this 10 minutes and he was not making much sense but he could still speak and move. She did not observe any spastic movement or seizures. She had witnessed three different people having seizures on three different occasions and would have been able to recognise if he had had one. Ms Hancock sat on the ground cradling the plaintiff's head until the ambulance personnel arrived. Ms Hancock should be publicly acknowledged for saving the plaintiff's life. 48 The ambulance report stated that the plaintiff had a closed head injury post fall. The report noted that on arrival at shopping mall male patient agitated on ground with gross blood loss from head injury and that the patient fell from step ladder approximately 4-5 metres and hit head on ground and was seen to fit leading to an episode of respiratory arrest as per a doctor on scene. On arrival patient thrashing about scene, blood loss from open wound on forehead, nil from ears. Swelling and bruising to both eyes. Patient complained of pain to left wrist. GCS 10/15 Patient verbalising, confused, but observations meant the plaintiff was stable. On route patient settled but very agitated. The doctor who apparently was on the scene did not give evidence. On 7 November 1996 Dr Abeysekera of St Vincents hospital (Ex 3) wrote a referral for the plaintiff stating that in relation to the work accident he had the initial presentation of an epileptic seizure while working and fell 4 to 5 metres. It is not known from whom this history was obtained so little weight should be ascribed to it. 49 There is divided medical opinion as to whether or not an epileptic seizure precipitated the fall from the ladder. All of these medical opinions were expressed without the benefit of Ms Hancock's evidence. Ms Hancock's evidence is taken into account with that of Dr Darveniza it is more likely than not that the plaintiff did not suffer an epileptic fit before he fell. Dr Darveniza stated at (t 153.10) that if the plaintiff had suffered a generalised seizure which caused him to fall from the ladder, someone might have seen a seizure on the ladder or seen him black-out at least and as it continued with the fall immediately after unconsciousness, one would expect to find a tonic-clonic conversion on the ground, a generalised seizure on the ground. Dr Darveniza said that if the plaintiff suffered an epileptic fit while standing on the ladder it was more likely that the plaintiff would have suffered the same type of seizure that he suffered in the past, namely grand mal seizures. As previously stated, Ms Hancock did not observe anything that would lead her to believe that the plaintiff suffered an epileptic fit. 50 There is no evidence to suggest that the plaintiff was suffering an grand mal fit. Mr Smink was not called to give evidence although he most likely would have witnessed the accident. He could have been expected to give the true complexion of whether he observed the plaintiff suffering an epileptic fit. There was not a sufficient explanation given to the court for his absence. Hence an inference is drawn that his evidence would not have assisted the defendant. For these reasons, it is my view, that on the balance of probabilities, the plaintiff did not suffer an epileptic fit which caused him to fall. The plaintiff fell because he was standing on the second top step of the ladder while reaching overhead and outwards at full stretch to put a hook in the slotted part of the awning. He overbalanced and fell from the ladder to the ground suffering serious injuries. 51 So far as these particulars relate to fault directly attributable to the defendant they depend upon there having been a personal duty of care reposed in it to exercise reasonable care to protect the plaintiff from foreseeable risk of injury, which called on it to ensure that they took adequate precautions for the plaintiff's safety while he carried out his visual display work. It may be accepted that a risk of injury attaches in respect of any person who had to go on to work at height in order to install Christmas decorations. It follows from the circumstances that such a person is expected to work at a height as he had to use a ladder. For the security and soundness of the ladder he had to rely upon the defendant. 52 The scope of that duty of care is determined by reference to the circumstances, the foreseeability of the risk and the reasonableness to such a foreseeable risk. What is reasonable will vary with the plaintiff's entry upon the premises. The defendants are entitled to take into account that a person such as the plaintiff who comes onto the premises will take reasonable care for his own safety. In the case of skilled independent contractors who encounter risks ordinarily incident to the work they are invited onto the premises to perform, reasonable men and women in the position of the defendant would not foresee or if they did foresee would not think it reasonably necessary to guard against the occurrence of those injuries which are ordinary incidents of the work - see Papatonakis v Australian Telecommunications Commission (1985) 156 CLR 7 at pp 20-21; Christmas v General Cleaning Contractors Ltd [1952] 1 KB 141, 148; Bates v Parker [1953] 2 QB 231; Pinborough v Minister for Agriculture (1974) 7 SASR 493. Such contractors must provide their own safeguards against the normal incidental risks of their trade (Christmas at 148). 53 Two engineering experts namely Dr Adams and Mr Olsen, provided divergent opinions. Dr Adams wrote reports dated 1 September 1998 and 6 August 1999 (Ex A). He gave evidence and was cross examined. Although Dr Adams in his report thought that the ladder would have been no more than 10' in height the fact that it was 12' made no difference to his opinion. Dr Adams said that the plaintiff's feet would have been approximately 2.7 metres above the pavement. He also remeasured the heights before coming to court and acknowledged that the measurement of 4 metres in his report was incorrect. He measured the distance by using a pillar. Even though there has been some work done on the entrance to the mall, the pillar shown in the photographs is still unaltered. He observed the pavement by placing tape over it. The brackets to which the plaintiff was attaching hooks for Christmas decorations were at varying heights up to 4.8 metres and the distance to the stepped top of the awning where the decorations were to be placed was a further metre. I make a finding that the plaintiff had been working to a height of 4.8 metres from the ground. 54 As previously stated, Tim Clarkson and the plaintiff are about the same height and same build. Later on that day after the accident occurred, Tim Clarkson took over the plaintiff's position. Tim Clarkson used the same ladder to complete affixing the garland. He described the ladder as a solid and very stable ladder. He said that although he cannot recollect which rung his feet were on, he was at a safe level. He raised his hands above his head. His arms were extended, his elbows were bent and his hands were about one foot above the top of his head (t 344). Tim got down and moved the ladder and went up again until the hanging garland on the awning had been completed. He did not experience any sensation of the ladder being unstable. Nor did he find it necessary to request an employee hold the ladder to ensure his safety. 55 In his report dated 1 September 1998 Dr Adams inferred if the plaintiff was attempting to attach as many as three hooks in a row from the one ladder location, he would have been reaching to the side from the ladder on which he was standing and may inadvertently have moved so far as to take his centre of mass beyond the base of support of the ladder. If there was any movement whatsoever in the ladder which was not being held by his fellow worker, then the plaintiff could have been thrown off balance and would have been unable to arrest the fall since there was nothing above or beside him which he could grab. Dr Adams conceded that even if the plaintiff had been standing at the fourth rung from the top, this would have made very little difference to his opinion. 56 Dr Adams gave evidence that a stepladder is not designed to be used as and should not be used as a work platform. It should only be used for the simplest and most physically undemanding of tasks, such as, for example, changing a light bulb. He gave evidence that had the plaintiff been able to reach above or in front of himself, directly within the envelope encompassed by the two styles and without any significant force being required, the ladder could be used. This is on the proviso that the ladder would be standing on a stable surface and was firmly footed or held. (t 267.55). While Dr Adams observed that the floor surface of the accident site was not perfectly level (t 274.45) he did not measure it. 57 Dr Adams referred to a notice that appears on most ladders to the effect that a person using a stepladder should not ascend above the second step from the top. It is not known when this ladder was purchased or whether it actually had a warning sign such as "Do not ascent above this level" on the second step from the top of the ladder. This warning is not of assistance to the plaintiff's case. It is not disputed that the higher a person goes on a ladder and/or the further they lean to the side while standing on a ladder the less stable the system becomes. Dr Adams said that falling from a height at which the plaintiff's centre of mass would have been over 3.6 metres above the ground the plaintiff would have acquired a vertically downward velocity of approximately 8.4 metres per second or about 30 kilometres per hour. Undoubtedly, an impact against an unyielding pavement by a person falling at such a velocity could cause significant injury. 58 Finally, Dr Adams also expressed the view that as the plaintiff was working under some considerable time pressure, attempting to get all of the garlands and decorations hung before Christmas and that the plaintiff had been provided with an unskilled, inexperienced work team the plaintiff should have had available to him at least two other experienced workers who were capable of assisting in making judgments about the safety of the work as well as about the speed and efficiency of the work. It should be noted that the plaintiff attended a training session with his team. 59 The defendant tendered two reports of Dr Johnn Olsen dated 14 May 1999 and 22 December 1999. (Ex 14). In his first report Dr Olsen assumed that the height of the ladder was 3.34 metres, the ladder width .56 metres, there were 11 steps (excluding the board at the top) and the spacing between each step was 300 millimetres. The plaintiff was 6' tall, (the same height as Tim Clarkson). 60 Dr Olsen's referred to CIS information sheet which stated that stepladders can be used during painting, decorating or installation work and that stepladders are particularly recommended where workers are required to remain on a ladder for longer periods of times such as in storerooms, libraries and archives. It was Dr Olsen's view that stepladders remain the most useful access to elevated places including an awning where the time required for access is relatively small and where it is necessary to move from place to place frequently. Consequently, a stepladder was the correct equipment and was suitable for the job in the Imperial Arcade. It was his view that the stepladder would not place the plaintiff at any significant risk of injury. 61 Dr Olsen stated that it could not be expected of an employer of a contractor to check on how the contractor was standing on the ladder, particularly in light of the plaintiff being in charge of the job and being responsible for the work performed by others. It would be reasonable to assume that he would have taken at least rudimentary safety precautions which of course would not include leaning sideways from a ladder or performing vigorous movements whilst standing near the top of a ladder. 62 I accept that the plaintiff was under time constraints and he was the one with the responsibly to ensure that the job was completed by the end of the day. However, the plaintiff had been told by Mr Smink that he (Smink) refused to go any higher on the ladder to carry out the work because it was too risky. The plaintiff nevertheless chose to ascend the ladder to the step nearest the top of the ladder and reach overhead to a full stretch outside the style area of the ladder. The plaintiff was experienced as he had been doing this type of work for a number of years. I infer that the plaintiff knew that this was dangerous and that he was taking a risk, but nevertheless elected to carry on with the job. As the plaintiff was the supervisor in charge of the job, he could have easily requested an employee to hold the ladder for him so that it was more stable. He chose not to give that direction. 63 Alternatively the plaintiff could have moved the ladder in the direction he was working on a more frequent basis thus minimising the area of his reach. Although it may have taken more time he would not be called upon to reach outside the centre of his mass and he would have been securely balanced. This is exactly the mode which Tim Clarkson adopted when he completed the job later that day. 64 It is my view that the accident was caused when the plaintiff elected to place himself in a precarious position at the top of the ladder and over reached. The plaintiff lost his balance and fell with very serious consequences. The plaintiff did not take care of his own safety, and was the author of his own misfortune. 65 It is my view that a reasonable person in the defendant's position would not have foreseen that there was a risk of injury to the plaintiff when he was installing the Christmas decorations on the awning by means of a ladder. The defendant would have expected that the experienced plaintiff would have known to either move the ladder more regularly or would have directed an employee of the defendant to hold the ladder steady. Accordingly, as the defendant did not breach the duty of care it owed to the plaintiff the plaintiff's claim in negligence fails. 66 In relation to breach of contract, it is my view, for essentially the same reasons as above, that the defendant did not breach its contract with the plaintiff. The defendant took reasonable care not to injure the plaintiff. The plaintiff's claim in contract also fails. There will be a verdict and judgment for the defendant. Costs are discretionary. Costs should follow the event. The plaintiff is to pay the defendant's costs. 67 In case I am found to be in error, I will record my findings on the defendant's reasonable response to the risk, contributory negligence and damages. Five cheap and practical responses to the foreseeable risk have been suggested by Dr Adams. They are firstly, the plaintiff's employer could have provided a small, mobile man-lift platform of the scissors lift or "cherry-picker" type. Such machine can be hired for a couple of hundred dollars a day and would have enabled the work to be performed very much more expeditiously and safely. Secondly, at a simpler level there are available for hire mobile scaffolding units which have a work platform generally of the dimensions approximately 1.2 metres by 2.4 metres and capable of providing a work platform at adjustable heights up to about 4 metres. Such mobile scaffolding platforms are mounted on wheels and castors and can be pushed manually and quite quickly to any desired location. This costs about $70 per day. 68 Thirdly, another simple provision would have been to supply a pair of trestles and a couple of planks and lengths of steel railing. Although, technically, it should be the task of a rigger to set up scaffolding using trestles, planks and steel rails or handrails, the very simple work platform required for the work being performed by the plaintiff could have been assembled and disassembled for movement quite quickly and would have provided for much safer access than is possible from a ladder. Fourthly, at the very least the employer could (should) have ensured that the plaintiff was given thorough training in the safe use of stepladders including the importance of having the stepladder firmly held or secured in place as a person was using it for access; and should have provided him with a ladder long enough to enable the plaintiff to reach any of the points at which he was inserting hooks without having to climb to an unsafe height (i.e., above the second step from the top) on the ladder. Dr Olsen's view was that there was no necessity for the defendant to provide the alternatives suggested by Dr Adams. 69 It is my view that a mobile scaffolding platform would have been a cheap and practical response to the foreseeable risk. The trestle and planks could be destabilised by unwary shoppers. The cheery picker alternative is not the best alternative as it is more expensive. It could have been expected that the plaintiff would have been aware of the safe use of stepladders.

Contributory negligence 70 As previously stated contributory negligence is not applicable to a claim for breach of contract. In tort the plaintiff submitted that no contributory negligence can be applied against the plaintiff in this case. The plaintiff was engaged in an operation and using equipment concerning which he had no choice either as to the equipment itself or the manner of its use. In these circumstances, there is no conduct on the part of the plaintiff to which attention can be drawn which makes him at all responsible for the damage in the sense that he departed from the standard of care of the reasonable man. 71 The defendant alleges that the plaintiff was guilty of contributory negligence and should have his damages reduced by 70% in that he firstly, failed to take any or adequate care for his own safety as he performed his duties; and secondly, that the plaintiff failed to take any proper care for his own safety in that he knew or ought to have known that he was subject to fitting and that he should not have climbed the ladder without ensuring that the ladder and/or the plaintiff was adequately supported and climbed too high on the ladder. In considering the question of apportionment the court is required to reduce the damages recoverable "to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage". The inquiry is not concerned with the cause of the accident but with the cause of damage - see Froom v Butcher [1976] QB 298 at 292-293. Tim Clarkson and Dr Adams stated that if the ladder had been properly held there was no reason why the work could not be safely done. While I appreciate that the plaintiff was trying to meet the deadline, he was aware that Mr Smink thought climbing to that height on the ladder was unsafe. The plaintiff should have taken the precaution of having someone hold the ladder. It is my view that the plaintiff's damages should be reduced by 30% for contributory negligence. 72 As previously stated, if I am wrong on the issue of liability, I have given reasons in relation to the assessment of damages on the basis of the Workers Compensation Act although I have found the plaintiff to be an independent contractor and not an employee.

Damages 73 Prior to the accident he had lots of friends and led a fairly active social life. The plaintiff's father gave evidence that while the plaintiff was at school he was interested in sport and was enthusiastic for life but was not the world's greatest student. Prior to the accident he was living in Stanmore. He lived in a defacto relationship for 2½ years and he had a number of other significant relationships. He liked to socialise. He used to go and see live bands with friends. He was interested in cooking. He had a flair with food and cooked exotic meals for friends and family. When he came home from overseas in 1996 to commence Christmas seasonal work, he was very happy and enthusiastic about his trip. Prior to starting work for the 1996 Christmas season that he was the "same old bouncy Benjamin".

Non economic loss 74 I have assessed damages on the basis that the plaintiff was an employee, although I acknowledge I have made findings to the contrary. The plaintiff submitted that non economic damages would be $177,320 which is 80% of a most extreme case. The defendant submitted that the range of damages for non economic loss is between $75,000 to $100,000. The injury to the right eye is uncontroversial. It is not disputed that the plaintiff suffered a broken left wrist. It is the extent of brain damage and the effect it had on the plaintiff's pre-existing epilepsy that is disputed. The defendant submitted that evidence that brain damage was a result of the accident is unconvincing. 75 The plaintiff does not remember much until he woke up in intensive care. He knew that he had been smashed up and was in a lot of pain and did not feel good. He experienced pain at the top of his cheek bone and below his right eye and across his eye and the right side of his forehead. When his cheek bone was operated on he was in a lot of pain when he came out of surgery. After about two weeks the plaintiff started to walk and was discharged from hospital on 9 November 1996. 76 It appears that the plaintiff suffered from post traumatic amnesia for at least two to three days after the accident which is considered a severe head injury. The plaintiff's parents gave evidence that while the plaintiff was in intensive care he was very strange, he was confused and he did not make sense. He was being extremely difficult. The plaintiff suffered a right temporal extradural haemorrhage which was treated conservatively. He injured his right optic nerve resulting in blindness in his right eye. He also suffered a right orbital fracture, fractured left wrist and fracture malar region on his face. He has been left with a sagging of the right lower eyelid and a scar over the right forehead.

Right eye 77 Dr Delaney confirmed that there had been 100% loss of vision of the right eye and that this loss is permanent and due directly to the effects of the injury. This is common ground. I accept Dr Delaney's opinion (see report 7 December 1999). In 1998 the plaintiff had an operation on his cheek to remove the plate from his cheekbone. In June 1999 the plaintiff had an operation to have a nerve reconstruction behind his right eye. The continuing disability that the plaintiff suffers is difficulty in judging depth and distance and he would need to take additional care if he were to work at heights or near moving machinery. I accept that the plaintiff has 100% loss of vision in his right eye and is unable to carry out work which involved fine binocular vision and stereopsis. This injury was caused by the fall from the ladder.

Left wrist 78 Dr Philip Marnie in his report dated 20 January 1999 said that the plaintiff's left wrist showed a healed fracture across distal radius which had united with some impaction. The fracture was caused by the fall. He said that if he was to isolate the orthopaedic component of the injury, the left wrist and right scapula, he thought it would be unlikely that the plaintiff could do work involving a lot of heavy lifting with his arms or forceful pushing and shoving. He would also probably have difficulty with his arms if climbing ladders for any length of time otherwise there would be a wide range of work which he could do. Dr Marnie in his report dated 17 March 2000 assessed that the plaintiff suffered a10% loss of the efficient use of his left arm below the elbow. The plaintiff gave evidence that eventually the left hand strengthened and he currently does not experience any problems with it. I accept this evidence.

Brain injury 79 The changes to the plaintiff's lifestyle after the accident were significant. The plaintiff's father Samuel Van-Der Sluice and the plaintiff's mother Sharon Van-Der Sluice gave evidence and were cross examined on this topic. They have a 23 year old daughter Sarah who suffers with Downs Syndrome and she requires a lot of their care and attention. An independent witness Mr Kevin Welsh also gave evidence both in relation to the changes he observed in the plaintiff after the accident and the plaintiff's current working capacity. 80 Upon discharge the plaintiff moved back to his parents' house and in the first month he could not do anything for himself. He sat in his room and experienced a lot of pain behind his right eye. He was depressed. He had to come to terms with not being the same person that he was prior to the accident. He felt like an invalid. He could not see out of his right eye and his left wrist was a lot weaker. He had difficulties adjusting to the loss of the sight in his right eye because he would forget to make allowances for it and he would bump into doorways and people. (t 37). At times he needed to consult a doctor for an injection of anaesthetic around the eye to alleviate the pain. He consulted his general practitioner on a weekly basis. He consulted a psychiatrist and tried every antidepressant "under the sun" but has since abandoned them all. He continued to experience pain through his neck and right shoulder. 81 For the first six months after the plaintiff left hospital his mother described the plaintiff's behaviour as being a nightmare. The plaintiff spent most of his time in his bedroom. It got to the stage that they did not invite people into their home because the plaintiff would flare up and says outlandish things and stomp off. When he first came home from hospital he was unable to make his own food and his mother used to make him soup because his face was wired and he could not eat much at all. During these first six months the plaintiff's mother spent four to six hours per day supervising the plaintiff. She checked on him to see if he was all right, that he had taken his tablets and to see if he was eating and to check that he did not fall down the stairs. Sometime after the plaintiff was discharged from hospital his parents were called to North Manly centre and spoke to a counsellor. The counsellor told them that the plaintiff was drinking alcohol and taking drugs. The defendant has highlighted the plaintiff's inconsistency with the evidence on this topic. It is my view that the plaintiff has deliberately sought to play down his taking of illicit drugs, but I do not find that he had a drug habit which significantly affected his lifestyle or working capacity. According to the plaintiff's mother the plaintiff's outrageous behaviour that she experienced at this time has now modified but there are still occasional outbursts of unacceptable behaviour. 82 Since the accident, the plaintiff's relationship with his father has become a closer one. The plaintiff's personality has changed. He has more mood changes. At times he can be quite bright and other times he is very moody and its best not to speak to him. Both parents describe living with the plaintiff is "like walking on eggshells". They have to wait to see what he is like on each particular day. Sometimes he is perfectly okay. At other times he has black periods which go on for three or four days and he does not leave his room. They have to ask him if he has eaten and to remind him of different things. His mother has to say "When is the last time you had a shower?" And "it is time you had a shave". She thinks he would attend to these tasks eventually if she did not remind him. Sometimes she asks him if he has had his breakfast and lunch and he will say "No" and she reminds him to have something to eat. He does not cook. 83 The plaintiff's mother has observed that the plaintiff is not motivated. She encouraged him to do a photography course. She asked him to give her some photographs of flowers but it took him six weeks for him to do them for her. He is not reliable complying with deadlines. The plaintiff stays in his darkened bedroom and watches videos constantly. He listens to music and reads books. He has very little energy and if he goes out he comes home and immediately goes to his room and lies down. When his parents do have guests over, the plaintiff will just go to his room and say that he is going, that it is just too much for him. The plaintiff's father said that prior to the accident the plaintiff was on the ball but now his memory is not that great. 84 The plaintiff now only sleeps about four hours per night. When he attempted to travel by public transport he says that would experience anxiety attacks and "freak out" (t 40). He becomes claustrophobic, his balance goes and he cannot cope. He can catch public transport to and from various engagements provided he takes anti-anxiety medication and avoid peak hours. His parents encourage him to leave the house but he feels a lot safer at home. He can go to the local shop. The plaintiff has had an occasional overnight stay away from home. He has gone out socially. He has gone to the beach. His father drives him to medical appointments. However, sometimes he will go out when his friends persuade him to do so but he will come home at 9.00 pm and say that he just could not take it. 85 Mr Keith Welsh is a consultant to a music publishing company and came to know the plaintiff because he lived next door to the plaintiff's family from 1990 to 1996. He is involved in the production of a music magazine. He is an independent witness and I accept his evidence. His evidence largely accords with that of the plaintiff's parents. Mr Welsh observations of the plaintiff prior to the accident was that he was someone who knew his own mind. Although the plaintiff left school early to go to work he was very capable, interested in life and music. Mr Welsh asked the plaintiff how his business was going the plaintiff replied that it was making him enough money to go overseas. 86 It was Mr Welsh's observation that after the accident the plaintiff had changed. Apart from the plaintiff's physical injuries, since the accident there is a reticence and introspection in the plaintiff that he had not seen before. Because Mr Welsh felt that it was unhealthy for the plaintiff to remain at home he asked the plaintiff to undertake some work experience. He asked the plaintiff to call a number of people and obtain information. He was to keep a file note and pass it on to the next person to be entered into a computer. He was also asked to visit some retailers and see if there were things that the business could do for them. He gave evidence that the biggest problem that the plaintiff had was that he seemed to be incapable of concentrating for any extended period of time and did not complete the task which was set for him. For example He was given a list of 30 radio stations to call over a period of two days. he might get through five or ten and then he would get up and wander away from the telephone and drift off. 87 Mr Welsh taught the plaintiff to use a computer program and while the plaintiff was in a room with him the plaintiff would use the program effectively without constant supervision. However then he would forget how to use the computer and the programs and Mr Welsh would have to refresh his memory. At the Christmas party he asked the plaintiff to come in and take photographs so that they could put them in their magazine. Mr Welsh said that in the processing the plaintiff lost part of them. The shots were also not taken well. When the plaintiff came back from seeing people or business associates he had not taken any notes and all that he could remember is that he saw Angel or HMV but he could not remember what the outcome of the conversation was or who he spoke to. 88 In 1997 the plaintiff went overseas for 6 weeks to Italy to visit friends. He thought that if he changed his environment, he may be able to recapture some of his confidence and his life would improve. He had panic attacks and ended up in hospital in Italy on two occasions due to seizures. When the plaintiff returned to Australia he found that nothing had really changed. 89 The plaintiff still has a couple of loyal friends but not as many as he did prior to the accident. At the Christmas party for the music company, the plaintiff took photographs but only a few were of a standard that could be reproduced in the magazine. Recently he has been sleeping over at his friend's house at Ultimo. His attention span is not great but his memory is worse. He has difficulties remembering names. He has not had a seizure for the last 12 months. The tablets he takes make him feel lethargic. Dylantin makes his gums bleed. He takes 27 tablets per day. 90 A video was shown of the plaintiff's activities on 2 December 1999. The plaintiff travelled from Manly to the city by ferry at about 1.00 pm. He appeared to be relaxed. He caught a bus from Circular Quay to a medical appointment with Dr Delaney, one of the defendant's doctors. After attending the medical examination he met a female friend, Alisa Gordezza, who was holidaying from Italy. They had a drink at the Paragon Hotel. They remained there for about 20 minutes. He took her photograph. The plaintiff appeared relaxed and engaged in animated conversation. The plaintiff went into the bookshop at the Museum of Contemporary Art and browsed for about 10 minutes. The plaintiff and Ms Gordezza went on to have a drink at the Australia Hotel. They were joined by Ms Gordezza's boyfriend Roberto, who was also visiting from Italy. They caught a bus to Oxford Street. 91 In Oxford Street they did some window shopping and visited a music store. Oxford Street was fairly crowded and busy at this time. They purchased some wine before enjoying a meal at Betty's Soup Kitchen. They made their way to the upstairs balcony of the Courthouse Hotel where they socialised for about 1 hour. On the way home they detoured to Little Oxford Street where they took turns in smoking a pipe containing marijuana. The plaintiff arrived home at about 9.30 pm. This video showed that the plaintiff is capable of catching public transport and experiences enjoyment from socialising. The activities shown in the video although not inconsistent with the plaintiff's evidence of his capabilities showed the plaintiff is capable of enjoying himself and going about day to day activities in a normal manner.

The extent of brain damage and the effect caused by the fall on the plaintiff's epilepsy 92 It is necessary to determine the effect that the fall had on the plaintiff's epilepsy and the extent of brain damage suffered in the fall. The epileptic attacks have been referred to earlier in this judgment in a different context. It is necessary to examine them in more detail in order to determine the likely course the pre-existing epilepsy would have taken had the accident not occurred.

First epileptic attack 93 Prior to the accident the plaintiff had two seizures, one in England in 1996 and one on 11 October 1996, just over a fortnight prior to the accident. These have already been mentioned in detail earlier in this judgment. The Chelsea hospital emergency department's initial assessment records that the plaintiff had "PC/? EP fit/collapse HPC/? epileptic fit at work ° witnessed working in shop ? collapse ? fit. Found on floor by collegues (sic) Pt can't recall what happened - felt well before & thinks he lost approx 2 hrs. Now feels slightly dizzy & headachey (sic) & anxious about what happened. OE/ colour good. Alert + orientated incontinence injury apparent. Normally fit + well tix of epilepsy" The senior nursing officer's review sheet stated that "Had witnessed toni clonic fit today. First ever fit ° aura now feels fine. Uses illegal drugs - mostly ecstasy - last took - last night". 94 In relation to the episode on 11 October 1996 the Royal Prince Alfred hospital outpatient notes record that the plaintiff was "not completely aware of surroundings for 20 to 30 minutes. Not in contact with circuit during jerking phase. Circuit live but all fittings plastic coated. The plaintiff noted some confusion afterwards and could not remember address but was aware of being brought to hospital. Now feels completely well." The plaintiff underwent an ECG which was identified as being abnormal. The ECG report dated 17 October 1996 stated that it showed several bursts of generalised fast polyspike and wave discharge. 95 In the first month after the accident the plaintiff had one seizure. During the period of six months immediately after the accident the plaintiff experienced 10 seizures. The seizure was precipitated by the plaintiff feeling overwhelmed by a very vague cloudy sensation. Subsequently the plaintiff would lapse into unconsciousness. When the plaintiff awoke he was not aware of his surroundings. He had to sit still for 30 minutes because if he tried to stand up he would over balance and fall. From then until June 1997, the plaintiff has not suffered a further seizure. However, although there has been frequent changes to his high level of medication, the plaintiff has had several severe epileptic seizures over the last year.

96 Dr Darveniza wrote reports on the 20 July 1998, 16 December 1999 and 3 March 2000. Dr Darveniza gave evidence and wrote in his reports that he considered that prior to the accident the plaintiff had mild idiopathic constitutional epilepsy which could be controlled by one form of medication. I accept this view. The fall caused the plaintiff's epilepsy to worsen to a point where he needs large doses of medication to control it. Had the plaintiff not had the accident but had only his pre-existing epilepsy, it is Dr Darveniza's view that the plaintiff would have been able to continue in employment. There would have been certain activities that the plaintiff could not have engaged in such as working heights, driving public transport, swimming alone and scuba diving. The plaintiff has accepted that he would have had these restrictions due to his epilepsy in any event. 97 Dr Darveniza stated that following the head injury sustained in the accident, the plaintiff's seizures have been difficult to control but they have come under control on large doses of medications, one which produced a very severe side effect namely oscillopsia (jumping about the environment) which the plaintiff described as a sensation like vertical hold on the television is jumping up and this is accompanied by nausea, blurred vision and dizziness. In 1997 the plaintiff had almost daily episodes of oscillopsia which would last for a few minutes then go. Dr Graham disagreed with Dr Darveniza because it is Dr Graham's view that oscillopsia may be related to the head injury and not the medication. Dr Darveniza said that the plaintiff's social withdrawal and depression, whether a psychological or organic consequence, was undoubtedly a consequence of the injury. Loss of libido is also a consequence of the injury The plaintiff has a minimal but definite ataxia of gait. (t 158). 98 Dr Darveniza and Dr Graham agreed that the plaintiff remains fit for light sedentary duties in which the seizure or blindness of the right eye would not be a disadvantage or a danger to himself or others. He could not use heavy machinery. In Dr Darveniza's opinion there is a total and permanent loss of vision in the right eye, 20% permanent brain damage, 10% of loss of the efficient use of the left leg at or above knee and a 10% loss of the efficient use of the right leg at above the knee. 99 It is Dr Anderson's, a psychiatrist view that the plaintiff suffered from post traumatic epilepsy and post traumatic anxiety and depression. He attributed the plaintiff's problems of memory and emotional liability as direct results of the direct injury to the brain and not merely results of the need to adjust to changed circumstances. He said that the plaintiff continued grossly disabled occupationally and socially and remained unfit for all types of work and it is his emotional state which precluded him from all forms of work. 100 Dr Eikens a rehabilitation physician wrote reports dated 1 January 1999, 5 March 1999, 4 February 2000 and 9 March 2000. She believed that the plaintiff has sustained a traumatic brain injury resulting in residual cognitive dysfunction specifically affecting visual memory. She also referred to the complication of the development of depression, anxiety, panic attacks and depersonalisation. It was her view that the plaintiff is not fit to resume his previous occupation in the visual merchandising field due to physiological problems as well as epilepsy which would predispose him to further falls and injuries. 101 Further Dr Eikens did not think that the plaintiff was fit to return to alternative light duty work in view of his physiological problems, unless there was some improvement. She did not think that the plaintiff would be successful in formal retraining and tertiary studies due to residual cognitive dysfunction. It is likely in the future that if the plaintiff experiences stressful episodes or physical illness his cognitive function may temporarily decline further and he may require assistance in making decisions and judgments. The plaintiff is predisposed to further episodes of depression and panic attacks in the future depending on life stresses. At best, she thought that the plaintiff would be able to pursue photography as a hobby. In summary, she believes that in the long term it is unlikely that the plaintiff will be able to return to the work force on the open labour market other than in a routine, unskilled capacity with supervision or in a casual hobby or craft situation. (report 5 March 2000). 102 Dr Anthony Dinnen a consultant psychiatrist, wrote reports dated 18 December 1999 and 13 March 2000. He gave evidence and was cross examined. It was Dr Dinnen's opinion that the plaintiff appeared to have a number of problems, only one of which could be considered to have been present before the accident, namely the epilepsy. While the epilepsy may have been present before, it had certainly been of major proportion since the head injury. It was the belief of Dr Dinnen that the plaintiff suffers from a significant degree of chronic brain damage as a result of the injury, as reflected in psychological testing, and more significantly the plaintiff's behaviour at interviews and his general level of social adaptation. Dr Lethlean stated that the level of drugs and alcohol ingested can induce epilepsy although this is not at all common. Dr Lethlean opines that the plaintiff's balance, memory, behavioural and mood changes are consistent with the head injury sustained in the accident at work. Dr Maguire psychiatrist, suggested that the plaintiff's intermittent depressive symptoms do not prevent him from working and that he suffers from agoraphobia with panic disorder, but this was not necessarily caused by the accident. 103 Associate Professor Jones in his report dated 10 June 1998 (Ex 16) stated that the plaintiff did not exhibit obvious stigmata of brain impairment. He believes the plaintiff to be independent in personal care and activities of daily living. The plaintiff had developed psychological effects from his impairments associated with brain impairment of presumed aetiology. At that time Associate Professor Jones considered that the plaintiff would not be capable of returning to his previous or any other employment but has some vocational potential. 104 Dr Cussell has been the plaintiff's general practitioner since 1990. His reports are useful because he has seen the plaintiff as a patient both before and after the accident. In Dr Cussell's report of 23 February 1998 he identified the plaintiff's main problems as psychiatric ones, namely as agitated anxiety and depression and panic attacks which had been resistant to treatment. He had known the plaintiff since 1990 and stated that this illness is totally out of character of the person that he knew before the accident. He viewed the plaintiff as a normally adjusted 23 year old prior to the accident who was very outgoing and very successful in his business to becoming a person who was almost a total recluse in his bedroom unable to work and unable to cope with his anxiety and depressive illness. Dr Cussell considered the plaintiff a very intelligent patient who understands his affliction well, and thus remains frustrated that he cannot control his emotions and feelings by himself. 105 The psychologists, Mr Rawling and Dr Roldan disagree on the plaintiff's pre-accident ability and the cause of the plaintiff's deterioration in the plaintiff's intellectual functioning after the accident. On 10 July 1998 Peter Rawling gave the plaintiff a neuropsychological assessment. The plaintiff had pre-accident intelligence in the average range and this does not appear to be disputed. The primary finding in the neuropsychological testing was that the plaintiff had severe impairment in attentional processes. The plaintiff's concentration span was very limited and he was susceptible to distraction and very slow in the processing of new information. According to Mr Rawling the attentional deficit was primarily responsible for a significant decline in the plaintiff's intellectual and memory efficiency. These symptoms are consistent with the observations of the plaintiff's mother and father and Mr Welsh. 106 Mr Rawling reviewed the plaintiff on 25 February 2000. While there was an improvement in the plaintiff's performance on tests of intelligence and memory, he continued to demonstrate a significant attentional defect involving a reduced memory span, a markedly slow rate of information processing. Mr Rawling attributed the variability seen in the test scores to an attentional deficit. These attentional deficits were either the direct result of the brain injury sustained in the fall or they are attributable to the sedative effects of the high dose of anti-convulsants; either way they are attributable to the accident. The deficits attributable to the head injury and limiting his work prospects include a marked exacerbation of the plaintiff's epilepsy, the blindness in his right eye, the fatigue and reduction in his attention and concentration. It was his opinion that it would be unlikely that the plaintiff would have little real chance of finding any kind of satisfying work in the open employment situation. 107 When the plaintiff was in 3rd grade in primary school he was referred to the school counsellor as he failed to score on the gap reading test and his parents were concerned about his achievement at school. The plaintiff's mother remembers assisting in the classroom including assisting the plaintiff with remedial reading. Neither parent remembers the plaintiff being referred to the school counsellor and being psychometrically tested. It was concluded that the plaintiff had an IQ of 101 and was an underachiever in the basic skills area. The problem was identified as being an emotional one and was related to his sister having Downs Syndrome and requiring the attention that drains the emotional resources of the family. Dr Roldan conceded that the difficulties experienced by the plaintiff may have been conditioned by the events outlined above. 108 Much was made of the result of these school tests by Dr Roldan. The plaintiff did not feel comfortable being interviewed by Dr Roldan. However, Dr Roldan did not perceive that this was the situation. Dr Roldan and Mr Rawling had different views on the plaintiff's pre-accident ability and the cause of the plaintiff being distracted and unmotivated. Dr Roldan stated that there could have been deterioration in the plaintiff's intellectual functioning prior to the accident due to drug and alcohol abuse and pre-accident on set epilepsy and that the fluctuations in the plaintiff's memory score are not necessarily explainable in terms of alleged initial brain damage followed by recovery of functioning and influenced by practice effects. 109 Dr Roldan compared the results of the plaintiff's current psychometric test with his pre-accident test and school performance and concluded that there was not any frank evidence of post-accident deterioration in intellectual ability and memory functioning caused by the head injury on 27 October 1996. He stated that deficits in attentional concentration to some extent may have predated the accident. He acknowledged that the anti-convulsant medication may exacerbate his physical and emotional discomfort, his weakness in attention/concentration, and that the brain damage caused by the fall could not be excluded as a cause of these symptoms. (t 316.25). 110 Dr Roldan is of the view that while it is possible that the plaintiff experiences symptoms of an adjustment disorder with mixed anxious and depressed mood and at times has experienced major depression and general anxiety these symptoms are attributable to the plaintiff's orthopaedic and visual disabilities, epilepsy and changes to his lifestyle. However according to Dr Roldan, the plaintiff prior to the accident had pre-existing personality/emotional difficulties which manifested in academic under achievement as well as his and alcohol and illicit drug dependence. Any need for psychological intervention is likely to be the result of both accident related and unrelated factors. He was of the view that the plaintiff's intellectual ability and memory functioning would permit the plaintiff to return to the workforce. 111 I prefer the views of Drs Anderson, Darveniza, Cussell, Eikens, Dinnen and Mr Rawling to that of Dr Roldan and Associate Professor Jones. It is the reports of Drs Anderson, Darveniza, Eikens and Mr Rawling that accord with the observations of the plaintiff's family, Mr Welsh and Dr Cussens both prior to and after the accident. 112 The injuries the plaintiff suffered as a result of the accident had a very profound effect on the plaintiff's lifestyle. He has gone from an independent young man who enjoyed life to becoming almost a recluse. The injury to his right eye is permanent. He has a scar on his forehead. He has suffered an organic cognitive impairment of the brain due to the fall. He has a lack of motivation, poor memory and his attention span has been reduced. He had pre-existing epilepsy which has become much worse due to the accident. He now suffers from depression, anxiety and panic attacks. He has insight into his condition but is unable to alter it. Taking all of the foregoing factors into consideration I would have assessed general damages at $115,000, if the plaintiff had been an employee. There is no interest on non economic loss under the Workers Compensation Act 1987.

Economic loss - past and future 113 The plaintiff claims past economic loss at the rate of $530 net per week for 193 weeks which totals $102,290. The defendant submitted that the plaintiff would be entitled to 189 weeks at $130 (the average weekly wage from his income tax returns) which equates to $24,570. The defendant submitted that even without the fall he would have been unfit to work in the visual merchandising field and that the plaintiff has been put in much the same position as he would have been even if he had not had the fall. The plaintiff concedes that with his pre-existing epilepsy he would have been unable to continue to work at heights and with heavy machinery. He had never obtained a driver's licence but that is not to say that he would never have obtained a drivers licence.

114 In 1995 the plaintiff's taxable income was $7,450 which equates to $138 net per week. In 1996 the plaintiff's taxable income was $6,146 which equates to $122 net per week. In previous years, the plaintiff was employed by the defendants for the Christmas seasonal work. Prior to that he worked on a full time basis with Grace Bros. It is difficult to predict with any certainty as to whether the plaintiff would have continued as he has in the past few years and undertake only seasonal work and travel or whether he would have resumed full time employment. It is more likely on the balance of probabilities he would have worked for more weeks of the year than the seasonal Christmas period. He liked visual merchandising and most likely would have remained in employment in that field. He does not seem to be motivated to earn a high income. Doing the best I can, I allow the sum of $47,000 as a global sum for past economic loss. 115 For the future the plaintiff claims the average weekly wage for males namely $530 net per week to age 65 years and allow $130 per week net as the plaintiff's residual earning capacity. The defendant submitted that the maximum that should be allowed is for 10 years at $145 per week which equates to $50,889.93. The plaintiff submitted that he is not suitable for employment due to his inability to complete a task now compared to his position before the accident. While he might from time to time have casual work it would be at best spasmodic and it would be unlikely that he would be able to retain employment for any significant period of time. The plaintiff submitted that a sum of $400 per week in respect of future earnings would be a conservative estimate of his lost earning capacity. 116 The report of Vocational Capacity Centre Pty Limited dated 10 August 1999 by Dr Pyror, a vocational psychologist stated that the plaintiff obtained a general intelligence score in the low average range. His visuospatial problem solving appeared to be significantly better than this verbal problem solving. The plaintiff's basic verbal skills such as spelling and reading were in the well below average range. His basic arithmetic calculation score was in the well above average range. The plaintiff's interest pattern suggested a very narrow focus of preference on creative, aesthetic and entertainment oriented activities. His personality results suggested someone who disliked group situations and the demands of academic study but who also liked opportunities for creativity and self expression. He did not report emotional difficulties outside of the average range. 117 Dr Pyror suggested that the plaintiff's most suitable vocation options were to be found in the Tradespersons and Related Workers and Clerical, Sales and Service and Workers Categories of the Australian Standard Classification of Occupations (ASCO). Some of the specific options that he could consider included shop assistant - clothing; shop assistant - music; rental salesperson - videos; gallery attendant; inquiry clerk and booking clerk. With further training suggested possibilities are sound technician; florist; graphic pre-press tradesperson; desktop publishing operator and motion picture projectionist. It must be remembered that the plaintiff tried to use a computer and did some graphic type work but could not concentrate. It is my view that the plaintiff would not be capable of these suggested possibilities even with further training a full time basis. 118 The plaintiff gave evidence he would not be capable of working in retail. He does not think that he could do screen printing as it is a physically very strenuous job and with his level of medication he could not do this and it is not desirable to work with toxic chemicals. He cannot do a lot of work in front of a computer screen. He thinks that he would find working in a music or photography shop too tiring. He has thought of undertaking a photography course at Ultimo which is 40 hours per week as he is interested in photography. The video showed the plaintiff enthusiastically taking photographs. He took photographs at the magazines Christmas party, but, only a few were suitable for reproduction.

119 As previously stated prior to the accident the plaintiff had limitations on the type of work he could do due to his epilepsy. The average wage for males is $530 per week. The plaintiff would have earned less than this amount. I have assessed that the plaintiff would have earned the sum of $380 per week, which the plaintiff would have derived from taking on more seasonal jobs or working in permanent/part time in a visual merchandising position. I do not think that the plaintiff would have taken a job on a full time basis for a number of years. However, while it is difficult to predict, he may have had periods of full time work when he moved into his 30's. In arriving at this weekly amount I have taken this factor into account. 120 Since the accident the plaintiff cannot work with machinery in dangerous situations or do work which involves driving or requiring binocular vision or work that involves him being self-motivated. The plaintiff was unfit for any type of employment after the accident. He had 10 seizures during the last six months After the accident. He was having side effects from the large doses of medicine such as oscillopsia. It is my view that the plaintiff was totally unfit for work until 1997. This was a time when he was able to travel to Italy. The past economic loss should be calculated at $380 per week during this period. Only Dr Roldan thought that the plaintiff could return to the workforce on a full time basis. On the other hand Dr Eikens says that unless the plaintiff's psychological state improves he is unfit for all types of work. It is my view that the plaintiff has difficulties with concentration, memory and attentional defects. He takes large doses of medication which have side effects. He gets tired easily. However, it is my view that plaintiff has some residual capacity. He is capable of doing routine repetitive work that involves some degree of supervision. Alternatively, he may be able to do some casual work such as in the photography field. I would asses the plaintiff's residual capacity at $150 per week until retirement at 65 years of age.

Past loss of superannuation 121 The plaintiff claims the sum of $8,106. The defendant submitted that the plaintiff would have continued to work seasonally as an independent contractor and no amount should be allowed under this heading. For the few years after the accident, it is my view that the plaintiff would have continued working as an independent contractor. However, the plaintiff may have entered the permanent part time workforce and in accordance with Malec v J C Hutton Ltd (1990) 169 CLR 638, I should make some allowance for the possibility. I would have allowed $1,000.

Future loss of superannuation 122 The plaintiff claims 8% to 2002 thereafter at 9% on $530 gross per week = $36,571 . For the same reason as above the defendant submitted that no amount should be allowed under this heading. 123 Although it is my view that it was not likely that the plaintiff would have remained an independent contractor, as stated above, I should make some allowance to reflect the possibility that the plaintiff would have been employed on a permanent part time basis where superannuation was payable. I would have allowed $8,500.

Future medical and pharmaceutical expenses 124 Prior to the accident the plaintiff would have required one drug probably Epilim to control his epilepsy. He would also have needed to consult his general practitioner at least once every three months to renew the Epilim prescription. He would have also needed annual review from a neurologist. 125 After the accident the plaintiff was taking painkillers and sleeping pills and Dilantin for epilepsy. He takes 27 or 28 pills daily. The plaintiff gave evidence that he currently takes Epilim, Neurofen, Xanax, Stemetil and Parapax. The plaintiff continues to take Xanax tablets three times daily to settle oscillopsia and the occasional Valium tablets to help control his anxiety and panic attacks. (Dr Cussell 27 March 2000). In a report from Howard Lipman dated 15 June 2000 the plaintiff's pharmacist listed his current medication as Neurontin, Epilim, Xanax, Dilantin and Stemetil. In a report by Howard Lipman dated 15 June 2000 (Ex K) the plaintiff's current medications and their costs are Neurontin 400 mg 100 4 packs $82.40; Epilim 500 mg 100 2 packs $21.60; Xanax 1 mg 50 2 packs $21.30; Dilation 100 mg 200 1 pack $20.60 and Stemetil 5 mg 25 1 pack $11.47. Total cost per month $157.07. 126 Dr Eikens stated that the plaintiff required ongoing medical supervision by his general practitioner twice per month and a neurologist twice per year or more frequently as determined by his conditional complications. She considered that it would also be advisable for the plaintiff to undergo regular supervision by a psychiatrist approximately three times per year. Associate Professor Jones in his report of 28 May 1999 recommended that the plaintiff required some supportive counselling for an hour or so each week. The plaintiff is currently not consulting a psychiatrist. 127 The increase in epilepsy has meant that the cost of medication has increased from $21.30 to $157.07, ie., an increase of $135.47. Hence, I would have allowed $135.47 per month for medication from the date of the accident for 49.96 years (multiplier 975). Instead of visiting his general practitioner four times per year, he needs to see him 24 times per year, an increase of 20 visits per year. I would allow these visits. There should be some allowance made for the plaintiff to attend either a psychiatrist or counsellor to assist him with his psychological problems caused by the accident. I allow two visits per year.

Past domestic assistance, care and supervision 128 The plaintiff submitted that he required constant supervision with his daily living. He claims $15 per hour for 20 hours per week for 193 weeks which equates to $57,900. The defendant accepted that for three to four months the plaintiff needed some assistance but did not need further assistance beyond that period. 129 To determine the applicable amount to be awarded for domestic assistance it has to be identified which services the plaintiff would reasonably need as a result of the defendant's wrong. Or expressed another way the plaintiff is to be compensated for the loss of his capacity to look after himself which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327. The principles were recently restated by the Court of Appeal in Sullivan v Gordon (1999) 47 NSWLR 319. For the first six months, the plaintiff's parents looked after the plaintiff on an almost full time basis during the day although the plaintiff had problems sleeping. I would allow 6 hours per day for 26 weeks. 130 The plaintiff claims $16 per hour for 10 hours per week with life expectancy at 49.96 years (multiplier 9745) which equates to $256,000. The defendant submitted that nothing should be allowed under this heading because the manner in which the plaintiff conducted himself after the accident was no different to how he had conducted himself before the accident. 131 The plaintiff's mother currently spends two to three hours per day supervising the plaintiff. He does his own washing. He is responsible for his personal hygiene. He is particular with his choice of clothes and appearance. She is concerned that perhaps he is over generous with money and if he got a settlement she would be concerned if he had total control over that. The plaintiff has difficulty remembering to take his medication and his parents have to remind him to take it on a daily basis. The plaintiff's father drives him to medical appointments which are related to the plaintiff's injuries. The plaintiff's father drove the plaintiff around before the accident and I have taken this into account.

132 Dr Eikens considered that if the plaintiff did not have assistance of his family he would require some supervision and assistance for day to day activities to ensure adequate nutrition, continuation of medication, medical supervision and probable assistance with financial decisions. (Report 4 February 2000). I accept that the plaintiff has problems with his memory and motivation which are related to the accident. It is reasonable to make some allowance for his parents, or if he is able to live independently in the future for someone to check on him from time to him to ensure that he is taking his medication and ensure that he is coping with washing, cooking, finances and day to day living. I do not think a weekly sum is the appropriate way to assess this amount. Rather, I would allow a global sum of $50,000.

Workers compensation payback 133 It has been agreed that the workers compensation defence is allowed in the sum of $69,847.02 of weekly payments and $42,733.76 for medical expenses. This totals $112,580.78.

Fox and Wood component 134 Taxation payments made on behalf of the plaintiff are agreed at $13,814.15.

(1) There be verdict and judgment entered in favour of the defendant.

(2) The plaintiff is to pay the defendant's costs. **********

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