Corkery & Ors v Kingfisher Bay Resort Village Pt Ltd & Anor [2010] QSC 161

SUPREME COURT OF QUEENSLAND CITATION: Corkery & Ors v Kingfisher Bay Resort Village Pt Ltd & Anor [2010] QSC 161 PARTIES: ROBERT WILLIAM CORKERY (first plaintiff) CYNTHIA DIMITY CORKERY (second plaintiff) RW CORKERY & CO PTY LTD (ACN 002 033 712) (third plaintiff) v KINGFISHER BAY RESORT VILLAGE PTY LTD (ACN 050 542 955) (first defendant) KBRV RESORT OPERATIONS PTY LTD (ACN 010 836 709) (second defendant) FILE NO/S: BS 614 of 2005 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 18 May 2010 DELIVERED AT: Brisbane HEARING DATE: 26 October 2009, 27 October 2009, 28 October 2009, 29 October 2009 JUDGE: Peter Lyons J ORDER: 1. Judgment in favour of the first plaintiff in the sum of $147,494.41. 2. Judgment in favour of the second plaintiff in the sum of $12,996. 3. Judgment in favour of the third plaintiff in the sum of $766,597.50. CATCHWORDS: TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – GENERALLY – where the first plaintiff slipped on stairs at the defendants’ resort – where the first plaintiff was injured as a result of slipping on the stairs – where the plaintiffs alleged that the stairs on which the first plaintiff slipped were slippery – where the plaintiffs alleged that the stairs were slippery because of the negligence of the defendants - whether the defendants were negligent -- 1 of 29 -- 2 TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – GENERALLY – where the plaintiff descended a wet staircase in bare feet – where the defendants alleged that the first plaintiff failed to hold onto the handrail while descending the staircase - where the defendants alleged that the first plaintiff was contributorily negligent – whether the plaintiff was contributorily negligent DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – NON- PECUNIARY DAMAGE – PAIN AND SUFFERING AND LOSS OF AMENITIES – where the first plaintiff suffered a significant back injury – where the first plaintiff has ongoing back problems caused by his back injury – where the first plaintiff suffered a shoulder injury – where the first plaintiff has erectile dysfunction problems caused by his accident – where the first plaintiff has incontinence problems caused by the accident - where the plaintiff suffered high levels of pain in the initial period after his accident – whether the first plaintiff should be awarded damages DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER PECUNIARY DAMAGE – whether the first plaintiff should be awarded an amount for economic loss DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – MEDICAL AND HOSPITAL EXPENSES – where the first and second plaintiff expended money on hospital, medical and travel expenses – where the first plaintiff required some assistance with personal needs in the initial period after the accident – where the first plaintiff has some ongoing need for assistance - whether the plaintiff should be compensated for past medical expenses and care – whether the first plaintiff should be compensated for future medical expenses and care – whether the first plaintiff should be compensated for other expenses arising from his injury DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF CONSORTIUM – whether the second plaintiff should be allowed an amount for loss of consortium DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – OTHER -- 2 of 29 -- 3 PECUNIARY DAMAGE – where the the third plaintiff conducted a professional practice in which it employed the first plaintiff – where the first plaintiff’s injuries prevented him from performing certain work for the third plaintiff - where the third plaintiff alleged that it suffered loss because of the first plaintiff’s inability to perform certain types of work – whether the third plaintiff should be awarded compensation for its alleged loss EMPLOYMENT LAW – RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PARTIES – RIGHTS OF EMPLOYER AGAINST THIRD PERSONS – INJURY TO EMPLOYEE – GENERALLY – whether an injury suffered by an employee as a result of a breach of a contractual duty owed by another can provide a basis for a claim by an employer discussed Evidence Act 1977 (Qld), s 18, s 19, s 101 Personal Injuries Proceedings Act 2002 (Qld) Chicco v The Corporation of the City of Woodville [1990] Aust Torts Reports 66-813, considered Finn v Roman Catholic Trust Corporation for the Diocese of Townsville [1997] 1 Qd R 29, considered Lebon & Lebon v Lake Placid Resort Pty Ltd & Ors [2000] QSC 49 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305, distinguished McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors [2000] QSC 54, cited COUNSEL: C Heyworth-Smith for the plaintiffs R Morton for the defendants SOLICITORS: Murphy Schmidt for the plaintiffs Cantwell Lawyers for the defendants [1] On 25 January 2002, on the eve of his 50th birthday, the first plaintiff (Mr Corkery) fell down the steps of a villa in which he was staying at the Kingfisher Bay Resort and Village on Fraser Island (the Resort). As a result he, his wife (Mrs Corkery), who is the second plaintiff, and the company through which he conducts a geological and environmental consultancy (RW Corkery), who is the third plaintiff, have all sued the defendants. Background [2] There is no issue that, between them, the defendants conduct the Resort. Nor has there been any suggestion that separate consideration should be given to the position of either of them. [3] In January 2002, Mr and Mrs Corkery and their three children, Kate, Amy and Mark, went to the Resort for a holiday. The holiday was, in part, to celebrate Mr -- 3 of 29 -- 4 Corkery’s 50 th birthday. They were staying in villa 18. In the afternoon of 25 January 2002, Mr Corkery, Amy and Mark had been swimming. Amy returned to the villa a little ahead of the others. Mr Corkery and Mark returned to the villa in the late evening, perhaps a little after 6pm. There had been light rain. [4] There is a boardwalk in front of the villa. Wooden steps lead up from the boardwalk to a landing in front of the entry door. Mr Corkery and Mark went up the stairs to enter the villa. Mr Corkery had worn his sandshoes to the top of the stairs, but because they were dirty, he then took them off and decided to take them back downstairs and clean them. He was holding the sandshoes as he went down the stairs. He was conscious that the stairs were wet, and proceeded to descend with some caution. He placed his right foot on the top step, and then his left foot beside his right; he then placed his right foot on the next step, and at about that time fell heavily to the bottom of the steps. There is some debate about the manner in which he fell, which is discussed later in these reasosns. [5] His family quickly came to his assistance. However, his condition was such that he could not be moved for a number of hours. Further assistance came from resort staff and, somewhat later, from ambulance officials. Later that night, he was transferred to Hervey Bay Hospital. Ultimately, he made his way back to the family home in Orange. [6] Mr Corkery is a pre-eminent geological and environmental consultant who practises principally in New South Wales. RW Corkery commenced operation in November 1980. While Mr Corkery is the principal professional person employed by RW Corkery, he is not the only one. Mrs Corkery is the business manager for RW Corkery. [7] Mr Corkery was unable to work for a relatively short period. However, he continued to receive income from the company. RW Corkery’s case is that as a result of the accident, Mr Corkery cannot carry out the geological work which he previously performed, and that has resulted in its suffering loss. However it is a feature of this case that, notwithstanding the injury, the income of the company has increased since the time of the accident. How the accident happened [8] The plaintiff’s case was that Mr Corkery had slipped on the stairs, resulting in his fall. The defendants sought to suggest that he may have tripped or stumbled. [9] In his evidence in chief, Mr Corkery said he remembered his foot slipping, and then being at the bottom of the stairs. [10] In the course of cross-examination, Mr Corkery was referred to his notice of claim dated 23 August 2002 given under the Personal Injuries Proceedings Act 2002 (Queensland) (PIPA). In that document, with reference to the accident, he said that he had put his right foot on the first step and then his left foot on the same step; and then as he put his right foot on the second step, he slipped and fell to the bottom of the steps. That differed a little from his account in evidence, in that on that version his left foot may still have been on the first step, whereas the version he gave in evidence suggested that his left foot had in fact left the first step, at the time when he slipped. In cross-examination he agreed that there was a difference between the -- 4 of 29 -- 5 two versions, but said of them that there was “very little difference.” It was suggested that he did not in fact have a current recollection of slipping, and that he had, in fact, simply missed the step. He accepted that what was in the notice of claim was more likely to be accurate, but, although his evidence is not entirely clear, he appeared to say that his current version was his current “best recollection” of what happened. He did not accept a suggestion that he had simply missed the second step. [11] The notice of claim became exhibit 30. It was tendered without objection. The cross-examination did not precisely follow the course for which provision is made in ss 18 and 19 of the Evidence Act 1977 (Qld), though it rather seemed directed to achieving what is provided for by those sections. The result of proof, in accordance with those sections, of the making of the statement contained in exhibit 30 is that the statement itself is admissible evidence of any fact stated in it.1 An alternative basis for its reception may be s 92 of the Evidence Act. In any event, Mr Corkery accepted that it was his recollection at the time when he completed the notice, and was more likely to be accurate than his current recollection. It therefore seems to me that I can act on the statement in exhibit 30 as evidence of what happened. The statement is consistent with Mr Corkery’s oral evidence that the fall was the result of his right foot slipping, notwithstanding some uncertainty about the position of his left foot at that time. [12] Mr Corkery was asked to demonstrate in court how he fell. His depiction of what happened, and such commentary as he gave on it, are consistent with his having slipped rather than some other explanation for his fall. [13] Mark Corkery was the only witness to the accident. He was 18 years of age when he gave evidence, and 12 years of age at the time of the accident. He accompanied his father back from the beach to the door of the villa. When Mark was standing on the landing at the door of the villa, his father said something to him, and he turned around. His evidence then continued: “I saw him descending the stairs and he took another step onto the next stair below, and he’s – he literally flew off – off the stairs. He didn’t stumble or trip, and he went directly off the stairs and out off the stairs, and then came down and landed at the bottom of the stairs.” [14] In cross-examination, he said that what his father said to him “had to do with his shoes”. He also said that after his father had put his right foot on the first tread, he put his left foot on the same tread; but he did not have both feet on the second tread “when he aquaplaned off the stair”. [15] When further cross-examination, he stated that he could not see his father’s feet, as the incident commenced, while his father’s foot was on the tread; but he also said he could see his father’s foot “in the slipping action”, as it came off the tread. He also gave a demonstration which appeared to me to be completely consistent with his father having slipped off the stair, and inconsistent with the case put forward on behalf of the defendants. Their Counsel identified a number of positions in which Mr Corkery’s foot might have been in relation to the tread immediately prior to the 1 See s 101 of the Evidence Act. -- 5 of 29 -- 6 fall. Mark rejected some of them, on the ground that “there would have been a stumble, not a slip”, if they reflected what had happened. [16] Mark seemed to me to be an honest, sensible and straightforward witness, who attempted to give his evidence accurately. He seemed to have a good recollection of the events immediately associated with the accident. [17] Evidence was given in the defendants’ case by a Mrs Cross (formerly Guines) who in 2002 was the resort nurse at the Resort. She attended on Mr Corkery after his fall. She gave evidence that Mr Corkery said that he could not remember how he fell. When then asked if he described how he fell, she said “I can’t really remember those sorts of details”. In an incident report prepared later she had recorded “fell, reason unknown”. After referring to that, she said Mr Corkery had stated he did not know what actually happened, whether he slipped or tripped. She also gave evidence that, when she asked Mr Corkery to state how the accident happened, he said that he had an umbrella in one hand, and shoes in the other, as he was going down the stairs. [18] Mrs Cross also stated that Mr Corkery said that he should have used the hand rail. Mrs Cross also recorded a statement which she attributed to Mr Corkery that he “also has hurt himself and his son on every other holiday they have been on”. Mr Corkery denied making that statement. [19] Mrs Corkery gave evidence that she was in the villa when she heard a scream and rushed out to find Mr Corkery lying on his back at the base of the stairs. She was present when the resort nurse arrived. She remained with her husband throughout the period when he lay at the bottom of the steps, except for a very brief period. Her evidence was that the resort nurse asked Mr Corkery “medical questions”, about his physical condition; and the resort nurse asked Mrs Corkery about how the accident had happened. She said that Mr Corkery did not tell the resort nurse a number of things recorded in the incident report. Mrs Corkery stated that it was untrue that every time they went on holiday Mr Corkery had an accident. [20] Mark Corkery gave evidence that he was with his father for much of the time when his father was lying at the bottom of the steps, but for not all of that time. He did not recall his father telling the resort nurse a number of things recorded in the incident report. He did however say that his father was in a lot of pain and not in a fit state to talk or communicate. His evidence was that, at the time of the accident, his father did not have shoes in one hand, and an umbrella in the other. [21] Kate Shaw is the eldest of the Corkery children. She gave evidence that she was in the spa when she heard her father call out. She immediately went to the stairs and saw her father lying at the bottom of the stairs on his back. A little later, she went to reception and obtained an umbrella, because of concerns about her father being outside in the rain. She had returned to her father, before the resort nurse arrived. She gave evidence that the resort nurse asked her father questions relating to his physical condition. She stated that he described to the nurse his movements prior to the fall. She could not recall how her father had described how he had fallen, but accepted that she did not hear him say that he slipped. Nor did she hear him say that every time the family had gone on holiday, he had an accident, and she said that in any event that was not the truth. She did not hear her father say to the resort nurse that on one holiday, both Mark and her father had accidents; she also said such a -- 6 of 29 -- 7 statement would not be true. She said that there was no umbrella at the scene, before she fetched one from reception. She did not hear her father say to the resort nurse that he had an umbrella in one hand and shoes in the other as he went down the stairs. [22] There are some difficulties with the evidence of Mrs Cross, and the notes which she made in the incident report. The statement that she attributed to Mr Corkery, that he had hurt himself on every other holiday the family had been on, seems bizarre. Other members of the Corkery family said that the statement attributed by Mrs Cross to Mr Corkery is untrue, and that he did not make it, or in one case, that the witness did not hear him make it, to Mrs Cross. I accept that the content of the statement is untrue. I do not accept the evidence of Mrs Cross that Mr Corkery told her something to the effect that on every other family holiday, he had had an accident. [23] Mrs Cross also attributed to Mr Corkery a statement that on one family holiday, both he and Mark had had an accident. For similar reasons, I accept that the content is untrue; and I do not accept the evidence of Mrs Cross on this point. [24] Mrs Cross has also recorded a statement by Mr Corkery that he was carrying an umbrella. It is inconsistent with Mr Corkery’s own evidence. When asked if he was holding anything in his hands as he commenced to go down the stairs, he said he had his sandshoes. Mark’s evidence was to the same effect. Mrs Corkery and Kate gave evidence that very shortly after the fall, Kate went to get an umbrella. It is unlikely that she would do this if Mr Corkery had an umbrella in his hand as he commenced to descend the stairs. Although there was some reference to an umbrella subsequently being found at the scene, that may well have been the umbrella that Kate fetched from reception. [25] The members of the Corkery family appeared to give their evidence on this issue honestly. I accept that Mr Corkery was not carrying an umbrella when he started to go down the stairs. I accept that he did not tell Mrs Cross that he was carrying an umbrella at that time. [26] Apart from the difficulties which I have mentioned with the content of Mrs Cross’s evidence, she appeared to me at times to be argumentative and defensive. [27] For these reasons, and because of the view I have formed of the evidence, particularly of Mark, but also of Mr Corkery, I accept their evidence that the accident occurred because Mr Corkery slipped, notwithstanding Mrs Cross’s evidence to the effect that Mr Corkery told her that he could not identify the reason for his fall. [28] There was some suggestion on behalf of the defendants that as Mr Corkery was descending the stairs, his foot missed a tread, causing him to fall. There seems to be no doubt that Mr Corkery was moving down the steps by placing first one foot, then the other, on a tread. It seems quite unlikely that a person proceeding in that fashion would miss a step. That explanation of the fall is inconsistent with the evidence of Mark and of Mr Corkery, including their demonstrations. I have accepted the evidence of Mark on this point. I have also accepted the evidence of Mr Corkery. His “best recollection” is generally consistent with Mark’s evidence. It is also generally consistent with exhibit 30, a document prepared about seven months after -- 7 of 29 -- 8 the accident, particularly in relation to whether he slipped, or fell in some other fashion. Were the steps slippery? [29] Counsel for the defendants drew attention to the fact that nobody who was present at the time of the accident said that the stairs were slippery, and that it would have been simple to call evidence to that effect if it were true. He submitted that the case is identical to that which was the subject of “severe criticism” by the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles.2 In that case, the plaintiff had fallen down some stairs at a workplace, and sued her employer in negligence. The trial judge adopted the opinion of an expert that the steps were slippery. That finding was overturned on appeal. [30] Priestley JA considered that the expert’s opinion “contradicted uncontradictable facts that showed that the stairs were not slippery in any ordinary meaning of the word”.3 The expert’s opinion related to the surface of 14 steps in a stairway. Priestley JA noted that in the two and a half year period prior to the accident, the plaintiff had used the stairway at least 500 times, and accordingly had placed a foot on the surface of a stair at least 7,000 times. The plaintiff gave no evidence that she had ever slipped on these occasions. [31] Powell JA pointed out that after the accident, the plaintiff continued to work for the defendant for more than nine years. Yet, the only occasion she identified when she slipped was the occasion in respect of which she sued.4 [32] Heydon JA, like Priestley JA, noted the number of occasions on which the plaintiff had used the stairs without difficulty before the accident. He also noted the length of time for which the plaintiff continued to be employed by the defendant after the accident. Another witness, a Mr Firth, gave evidence in the defendant’s case that he regularly used the stairway, but had no trouble negotiating the stairs and never found them slippery. He was not cross-examined about that evidence. Finally, Heydon JA noted that, in view of the length of time for which the plaintiff continued to work for the defendant after the accident, she “would have good opportunities to hear of any problems in view of her own fall”.5 [33] In the present case, in addition to the absence of evidence from persons present on the day of the accident, the defendants point to evidence from Mrs Cross that she had worked on Fraser Island for a little less than five years, ending in November 2004; and apart from the events involving Mr Corkery, she had not known of anyone falling down that set of stairs.6 [34] Mrs Cross gave evidence that she worked ten days at the Resort, and then spent four days off the Island; and that when she returned, she went through every incident in the Day Book. However, she felt able to deny that incidents could happen at the Resort without her necessarily knowing about them. There are, in my view, some difficulties about this evidence. A perusal of the Day Book would reveal incidents 2 (2001) 52 NSWLR 705. 3 See [4]. 4 Makita at [10]. 5 Makita at [55]. 6 See T 4-87. -- 8 of 29 -- 9 which had been reported and recorded in the Day Book. Mrs Cross’s evidence to the effect that she would “always know about” incidents takes no account of the fact that people may have slipped on the stairs to the unit, and had not reported the incident; or of the fact that, if someone slipped and reported the incident, the person to whom the report was made did not think it of sufficient importance to record it in the Day Book. [35] More generally, the present accident happened in circumstances quite different from those which gave rise to the claim in Makita. In the present case, the stairs are outdoors, and the accident happened in wet weather. The allegation is, in substance, that the stairs were slippery when wet. In Makita’s case, the stairs were indoors. The allegation was, in substance, that the stairs were generally slippery. [36] In Makita’s case, there was an abundance of evidence of repeated, incident-free use of the stairs, by the plaintiff and at least one other witness. There is no evidence in the present case of any significant use of the stairs in wet weather (or otherwise) by anyone. No attempt was made to show that the unit was regularly occupied; or the frequency with which guests stayed at the Resort in wet weather. It is likely that Resort staff serviced the unit, but no one was called to establish that they did so, in wet conditions, without incident; and in doing so, how frequently they used the stairs. In Makita, Priestley JA stated that for the stairs to be slippery in a sense relevant to that case, their condition would have to be such that “persons walking on them … with ordinary care, will from time to time, slip.”7 There was an abundance of evidence to establish the contrary in Makita. That is not true in the present case. Indeed, it is not a test of universal application.8 [37] While Counsel for the defendants is correct to submit that no one who was present at the time of the accident said that the stairs were slippery, and that there is no evidence that anyone else has ever slipped on the stairs, it does not follow that the stairs were not slippery when wet. In September 2002 the insurer for the defendants engaged Mr Armbruster, a mechanical engineer, to inspect and test the stairs. He did so on 24 October 2002. He was not called to give evidence by the defendants, but gave evidence in the plaintiffs’ case. He records that the timber treads had been treated with a varnish containing some grit for slip resistance; but that in high traffic areas, down the middle of the treads, the varnish was worn and “very little or no grip material is still present”.9 He referred to the requirement found in the Building Code of Australia, which is that:10 “A stairway must have … treads which have a non-slip finish or an adequate non-skid strip near the edge of the nosings.” [38] With reference to that provision, Mr Armbruster stated:11 “…the subject stair tread surfaces would not fully comply with the building code in that regard.” 7 See [4]. 8 See Fairfield City Council t/as Prairiewood Leisure Centre v Petro [2003] NSWCA 150, [20]-[21]; cited in Griffin QC and others, Personal Injury Litigation Queensland at [31,560]. 9 See Exhibit 22 p 1. 10 See s D2.13(e): a copy of the provision was included in Exhibit 32; the Building Code of Australia appears to be currently to the same effect. 11 At p 3 of Exhibit 22. -- 9 of 29 -- 10 [39] In addition, and unlike in Makita’s case, there is a not inconsiderable body of evidence relating to Mr Corkery’s fall. There was no dispute about the way in which Mr Corkery initially went down the stairs, prior to the fall. It is apparent that he was in the course of going down the steps, one at a time: that is to say, he placed one foot on a tread, then the other; and then commenced to move to the next tread.12 Such a manner of moving suggests considerable caution, and Mr Corkery’s explanation for it was that “everywhere was wet, you take a bit of caution”. It seems to me that if a person was proceeding down stairs in that fashion, and that person fell in the manner described by Mr Corkery and Mark, the most likely explanation is that the stairs were slippery when wet. [40] Some additional support for that conclusion is to be found elsewhere in Mr Armbruster’s report. In addition to his observations, he carried out “wet slip testing” of the treads of the stairs to villa 18. He did so by reference to the Australian and New Zealand standard “Slip resistance measurement of existing pedestrian surfaces” (AS/NZS4663:2002; for convenience I shall refer to this as “AS4663”). The testing produces results, the units which are referred to as British Pendulum Numbers, or BPNs. For the first, second and third steps, the minimum BPN was 34, 34 and 33; and the mean BPN was 35.5, 35.5 and 35. Under AS4663, a BPN is a measure of the contribution of the tread surface to the risk of someone slipping when the tread is wet. Mr Armbruster indicated, consistent with a Table found in AS4663, that the results placed the treads at the time of testing “between moderate to high”, with reference to the risk of someone slipping on them when they were wet. [41] No objection was taken to any part of Mr Armbruster’s evidence. Technically, I may be entitled, therefore, to act on the view he has expressed by reference to AS4663. [42] However, the plaintiffs called another engineer, Mr Kahler, whose reports were the subject of objection. There was objection to the reference by Mr Kahler in both reports to a British Standard. The basis of the objection was that its applicability had not been established, “especially as an Australian Standard has no legal or evidentiary force”, the authority relied on for that proposition being Finn v Roman Catholic Trust Corporation for the Diocese of Townsville.13 A footnote in the defendant’s written submissions was to the effect that I am bound, by reason of Finn’s case, to find that an Australian Standard has no legal or evidentiary force. [43] In Finn, the issue was whether an employer should have made enquiries to ascertain that the plaintiff had an unusual health condition. Reference was made to an Australian Standard dealing with the provision of services by an Occupational Health Service, to the effect that the services should include a health assessment. The primary point made in Finn was that the Australian Standard referred to had nothing to say about employers seeking medical histories from employees. However, it was also said that the Australian Standard had “no per se legal or evidentiary force”, reliance being placed on Chicco v The Corporation of the City of Woodville.14 12 See T 4-6. 13 [1997] 1 Qd R 29, 36, where reference was made to Chicco v The Corporation of the City of Woodville [1990] Aust Torts Reports 66-813. 14 See Finn at 36. -- 10 of 29 -- 11 [44] In Chicco, the plaintiff, a boy, 11 years of age at the time of the relevant accident, had been on a flying fox with a group of other boys. He slid off safely. Another boy then slid off and landed on top of the plaintiff, injuring him. The plaintiff’s claim failed both at first instance and on appeal. The plaintiff relied upon an Australian Standard relating to adventure playgrounds. It recommended that a seat should not be provided on flying foxes, on the basis that that was an invitation to multiple use of the flying fox. King CJ said that such standards had, of themselves, no legal or evidentiary force, but that an expert on safety might have recourse to them, if he sees fit, as a source from which he informs himself as to matters relating to the area of his expertise. Millhouse J noted that such standards are merely the expression of the opinion of people who speak under the aegis of the Standards Association and considered that it could not properly have been tendered. Cox J, while noting that such standards appear to be hearsay expressions of opinion, considered it unnecessary to determine the question of the admissibility of the standard, or its relevance. [45] The statement in Finn that a standard “has no per se legal or evidentiary force” seems to reflect the statement of King CJ in Chicco. However, his Honour considered that an expert might have recourse to such a standard, if the expert saw fit. That approach was taken in Kent v Gunns Ltd.15 [46] However, there seem to me to be a number of reasons to place limited, but not great, weight on Mr Armbruster’s test results. One reason is that the descriptions “moderate” and “high” are relatively imprecise. Another is that the basis for the Table is not apparent. It may well be the result of statistical studies, but that is not apparent from the Australian Standard itself (which was in evidence); nor from any other evidence in the case. On the other hand, the document reveals that it was issued in draft form for comment; and it was prepared by a Joint Technical Committee, with representatives from a range of organisations including the Australian Building Codes Board, CSIRO, Ergonomics Society of Australia, The Royal Australian Institute of Architects, and the Safety Institute of Australia, as well as a number of organisations which would appear to represent manufacturers of surfaces on which people might walk. [47] It therefore seems to me that the circumstances of the accident, and Mr Armbruster’s observations of the treads of the steps, enable me to conclude that the steps were slippery when wet, a conclusion for which some limited support is to be found in the test results. In my opinion, Mrs Cross’s evidence provides little meaningful assistance on this question. The conclusion is a little more easily reached than it might otherwise be, in view of the fact that there is no evidence of significant use of the steps when wet, without people slipping. [48] I am conscious that Mr Armbruster’s report raises the possibility that the steps may have been less slippery in January 2002, than they were in October 2002 when he saw them. However, that seems to be speculation on his part, there being no evidence to show that significant wear and tear had occurred in the meantime. A change of any significance in the condition of the treads between January and October would be inconsistent with my findings about how Mr Corkery’s injuries occurred. Accordingly, I conclude that there has been no such change. I also note that the defendants, who operate the Resort, did not seek to lead any evidence to 15 [2009] TASSC 30 at [50]. -- 11 of 29 -- 12 establish the condition of the steps at the time of the accident, or any subsequent change in their condition. Were the defendants negligent? [49] The claim made by Mr Corkery is based in part on the existence of a common law duty of care and in part on an implied term of the contract relating to the occupation of the villa. Mrs Corkery’s claim is made on the same basis. Although the claim made by RW Corkery includes a claim for damages “consequent upon … breach of contract”, there is no suggestion of a contractual relationship between RW Corkery and the defendant. [50] There is a question whether an injury suffered by an employee as a result of a breach of a contractual duty owed by another would provide a basis for a claim by an employer. Thus in Balkin and Davis, Law of Torts16, it is said that in the 20th century, all the reported cases in which the plaintiff has relied on this action have involved the negligent infliction of harm to the employee. However, the right of action is long established. Moreover, it is but a short step from granting relief in a case where there has been negligence, to granting relief in a case where there has been a breach of a contractual duty of care. [51] Further, the content of the duty alleged to be owed by the defendants to Mr Corkery is pleaded in the same terms, whether the duty be tortious or contractual; and the same is true of the allegations of breach. [52] In those circumstances, it seems sufficient to deal with the claim of the plaintiffs by reference to the question whether the defendants were negligent. [53] The statement of claim alleged contractual and tortious obligations on the part of the defendants to ensure that the premises, particularly the stairs, were reasonably safe for their use by Mr Corkery; a duty to maintain the premises, particularly the stairs, in a reasonable state of repair; and a duty to keep Mr Corkery safe from risk of injury which the defendants knew or ought to have known about. Somewhat courageously, the defendants admit such obligations as were implied by law, but did not venture further. Their written submissions appear to proceed on the basis that the defendants would not be liable if the stairs were not slippery, but did not suggest that if the stairs were slippery, negligence by the defendants was nevertheless not established. The plaintiffs’ submissions equally seemed to proceed on the basis that, if the stairs were slippery, negligence was established. In those circumstances, and in view of my earlier findings, it may be unnecessary to do more than conclude that negligence on the part of the defendants is shown to have caused Mr Corkery’s injuries. In case I am wrong, I shall consider the question further. [54] There can be little doubt that the defendants owed a duty of care to Mr Corkery. Its content was not explored in submissions. The duty may be said to be a duty to make the premises as safe for the purposes for which they are let as reasonable care and skill on the part of anyone can make them.17 Alternatively, the defendants may 16 Third Edition at p 627. 17 Maclenan v Segar [1917] 2 KB 325, 332-333; Watson v George (1953) 89 CLR 409, 424; See also Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, 340, the effect of these cases is discussed and Balkin and Davis Law of Torts (3 rd ed) pages 249-250. -- 12 of 29 -- 13 have been under a duty to take reasonable care to avoid the risk of injury.18 There will be cases where the difference in formulation does not matter.19 [55] In the present case the defendants had the conduct of the Resort. The Corkery family were there temporarily, and for recreational purposes. It seems to me that the specific content of the duty is higher, and a breach more easily established, in such a case, than in the case of a landlord and tenant. In the case of a resort, those who conduct the resort remain in control of the resort, and retain an ongoing responsibility for its maintenance. It is common experience, and usually very apparent to guests, that resort operators employ staff for maintenance purposes. The cost of doing so is likely to be part of the operating expenses, which are met out of fees charged to guests. [56] The plaintiffs led evidence from Kate Shaw to the effect that Mrs Cross, when she came to assist Mr Corkery, said that she wished “the resort would fix it up so accidents like this would stop happening”; and went on to point out the difference between the type of wood in the stairs in the villa where the Corkerys were staying, and the type of wood in a wooden walkway or boardwalk nearby. Mrs Corkery also gave evidence that the nurse (presumably Mrs Cross) pointed out the difference between the treatment of the timber in the stairs to the villa in which the Corkerys were staying, and the treatment of the timber at the entrance to other villas. In evidence-in-chief, Mrs Cross did not recall discussing with any person whether there had been other falls; or discussing the entrance ways to other villas. In cross- examination, she denied the statement attributed to her by Ms Shaw, or drawing attention to the entries to other villas. [57] In my view, it is likely that someone drew the attention of some members of the Corkery family to different treatments of timber in the stairs providing entry to the villa in which they were staying, and the entries to other nearby villas. That led to the taking of photographs of timber which was treated differently. I have previously expressed some reservations about the reliability of the evidence of Mrs Cross. The evidence of Ms Shaw receives some corroboration from the evidence of Mrs Corkery. My impression of both of them generally was that they were honest witnesses. I therefore accept the evidence of Ms Shaw about the statements made by Mrs Cross. [58] However, the question remains as to whether the evidence can be relied upon as demonstrating knowledge by the defendants of the risks posed by the stairs. [59] In Cross20 it is suggested that the rule is that a statement containing an admission is admissible against a party when made by an agent of the party “as part of a conversation or other communication which the agent was authorised to have with a third party.” While a nurse employed by entities conducting a resort is likely to have authority to discuss the symptoms and treatment of an injured guest, it does not seem to me that that authority would extend to discussing the condition of the premises. I consider, therefore, that the statements attributed to Mrs Cross to be inadmissible to demonstrate the knowledge the defendants of the potentially dangerous condition of the stairs to the villa in which the Corkerys were staying. 18 Harris at 347 per Dawson J. 19 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, 40-41. 20 Heydon Cross on Evidence (7th Aust ed) p 1098. -- 13 of 29 -- 14 [60] It would appear from Mr Armbruster’s report that the absence of grit and the wear to the varnished surface of the treads was apparent from a visual inspection. Although Mr Armbruster was cross-examined by Counsel for the defendants, no attempt was made to show that there would be any difficulty in recognising the state of the treads, by anyone concerned about the general state of the Resort and its maintenance. No evidence was led to establish that any maintenance was in fact carried out, or that there was any program directed to ensuring the ongoing safety of the Resort premises, notwithstanding the allegations in the statement of claim, and and the content of Mr Armbruster’s report (obtained by the defendants’ insurer in 2002). [61] Once Mr Armbruster’s evidence is accepted, and it is accepted that the stairs were slippery when wet, it is not difficult to conclude that Mr Corkery’s injuries were caused by the negligence of the defendants. The condition of the stairs suggests a lack of maintenance, in respect of a matter intended to prevent or reduce the risk of accidents. Their condition was apparent on visual inspection. While the probability of an accident with serious consequences may not be particularly high, it is nevertheless reasonably foreseeable that such an accident might occur. The stairs had been treated in the past in a way designed to ensure that they were not slippery. It seems likely that no extraordinary measure was required to reinstate them. The defendants have not attempted to show that they took reasonable steps to maintain the stairs in a safe condition. It is likely that, had they been maintained, the risk of falling would have been considerably reduced, and Mr Corkery’s accident would not have occurred. [62] I am therefore satisfied that Mr Corkery’s injury was the result of the negligence of the defendants. Contributory negligence [63] The defence of the defendants raises a number of allegations of contributory negligence. Some of them may relate to the version of the accident advanced on their behalf. One is rather generalised, being a failure to take “any reasonable care for his own safety”, which does not require specific consideration. I shall deal with the others in turn. [64] There was no evidence which would establish that Mr Corkery failed to keep a proper lookout. [65] While Mr Corkery was descending the stairs in bare feet, that seems to me to be a likely activity at a beach resort, even in wet conditions, and does not demonstrate a failure by him to take reasonable care to avoid the accident. [66] The remaining allegations are that he should have taken extra care in descending the stairs, and that he failed to hold onto the handrail while doing so. [67] It will be recalled that the evidence established the manner in which Mr Corkery was descending the stairs. In my view, it is clear that he was doing so cautiously. He was descending the stairs, one at a time, placing both feet on a tread before moving one foot to the next tread. The allegation made on behalf of the defendants, therefore, is that he failed to take reasonable care by not taking the additional precaution of holding onto the rail. In my view, the defendants have failed to -- 14 of 29 -- 15 establish that the reasonable standard of conduct of a person in Mr Corkery’s position, taking care to prevent a fall, would require him to do more than he did. [68] In my view, the defendants have failed to establish contributory negligence on the part of Mr Corkery. Mr Corkery’s general damages [69] Mr Corkery was immobile and in pain at the bottom of the stairs for several hours after his fall. Some time passed before he was given pain relief medication. He subsequently spent a week in Hervey Bay Hospital. At this time, his diagnosis included fractures of the transverse processes on the right side at L3 and L4 and an undisplaced fracture of the right scapula. His attempt to return thereafter to his home in Orange in New South Wales was interrupted. The pain he then experienced led to his admission to St Vincent’s Hospital in Toowoomba, for two days. It was there determined that he had avulsion fractures of the transverse processes on the right side at L3 and L4, though there was some doubt about the fracture of the right scapula. His leg pain was suggestive of right lumbar nerve root irritation. There was soft tissue contusion in the region around the lumbar spine. His general practitioner, as a result of x-rays, considered that existing changes in this area were probably aggravated by Mr Corkery’s fall. [70] Apart from his periods in hospital, Mr Corkery was treated with pain relief and medication and made use of a TENS machine. He undertook hydrotherapy, and physiotherapy. [71] Mr Corkery resumed work on a part-time basis in about March of 2002, and was working full-time within a month. However, he experienced pain after his return to work. [72] In addition, Mr Corkery suffered bladder dysfunction as a result of the accident. He was initially very sore in passing urine. He experienced occasional urgency of micturition, on an approximately weekly basis, with occasional incontinence. The evidence indicates that this does not qualify as an assessable impairment. A urologist, Dr Taylor, described these problems as stable. [73] From the time of the accident, Mr Corkery experienced erectile dysfunction with the result that he did not engage in any sexual activity for several months after the accident. There are ongoing problems of this nature. Dr Taylor assessed the permanent impairment of sexual function experienced by Mr Corkery, under the Guides to the Evaluation of Permanent Impairment compiled by the American Medical Association (AMA Guides), at 8%, associated with a degree of difficulty of erection and ejaculation. [74] Mr Corkery has continued to experience difficulties with his back. It aches on long car trips. He is no longer capable of doing some heavy tasks associated with aspects of his professional work, particularly geological investigation. Dr Bodel, an orthopaedic surgeon, considered that, with regular exercise, he should be able to cope with most of his work activities, “in a modified sense”. [75] In September 2003, Dr Bodel expressed the view that Mr Corkery had a 5% overall impairment relating to the function of his neck; and a 15% overall impairment -- 15 of 29 -- 16 relating to the function in his back, of which 12% was a result of the accident. Another orthopaedic surgeon, Dr Meachin, assessed a 12% impairment of the back of which 8% was attributable to the accident. In August 2006, Dr Bodel assessed, under the AMA Guides, a 6% whole person impairment as a result of the injury to Mr Corkery’s back; and a 0% whole person impairment resulting from each of the shoulder injury and the injury to the cervical spine. He subsequently explained the difference between his assessments on the basis that the August 2006 assessment was based solely on the AMA Guides; whereas his earlier assessment related to functional impairment. The condition of Mr Corkery’s back had not changed between the two assessments. [76] Mr Corkery has been reasonably diligent in seeking treatment for his back. He has undertaken physiotherapy, and an exercise regime. He also swims to assist with his problems. He has also had massage therapy, and at times requires pain relief medication and the use of Voltaren, an anti-inflammatory gel. These matters seem to me to provide some measure of Mr Corkery’s ongoing difficulties as a result of the accident. [77] The defendant has submitted that Mr Corkery’s general damages for pain, suffering and loss of amenities should be assessed at $45,000. The plaintiff has submitted that the appropriate amount is $65,000. I have been referred to some decisions which are broadly comparable. They include cases decided up to 10 years ago. Those of greater assistance are the relatively recent cases of Elliott v Spring21 and Suna v Bridgestone Australia22. [78] In the present case the plaintiff has plainly suffered a significant back injury, with high levels of pain initially. As will be discussed more fully, he has been unable to continue in one area of his profession, an area in which he seemed to enjoy working. He has ongoing problems with his back, and I am conscious of the effort he makes to manage them. In addition, he had a shoulder injury which may have well been a fractured shoulder, from which he seems to have recovered well. He also has problems associated with erectile dysfunction, and incontinence. I am conscious that there is a small degree of degenerative change present in Mr Corkery’s back, but there has been no suggestion that it has or would have become symptomatic, had the accident not occurred. Under the circumstances, it seems to me that an award of $60,000 for pain suffering and loss of amenities is appropriate. Interest on $30,000 for 8.3 years at 2% amounts to $4,980, which I award. Mr Corkery’s economic loss [79] From the time of the accident Mr Corkery continued to be employed and paid by RW Corkery. There is no reason to think that the situation will not continue, for the balance of Mr Corkery’s working life. Nor is there any reason to think that the company will not continue to be successful. The medical evidence does not suggest a real risk that Mr Corkery’s injuries may lead to some deterioration of his physical condition, with some risk affecting his future employability. I am conscious that there are some tasks that he can no longer do, but in my view, the evidence demonstrates that this has had no significant effect on his personal capacity to earn income. It is conceivable that the availability of work in the area in which Mr 21 [2009] QSC 118. 22 [2008] QSC 125. -- 16 of 29 -- 17 Corkery continues to be employed (Environmental Investigation) will contract; and that the availability of work in the area where he can no longer work (Geological Investigation) will expand. However, there is no evidence to indicate that this would happen, at least to an extent which would directly affect Mr Corkery’s personal income, and it seems to me to be rather speculative. [80] Accordingly, I do not award an amount to Mr Corkery for economic loss, past or the future. It follows that no amount is awarded in respect of superannuation. Past care [81] The claim under this heading includes amounts for attendance by Mrs Corkery at hospital at Hervey Bay, for the remainder of the period when the Corkery family were on holidays; travelling from Orange to Hervey Bay after the other members of the family had returned to their home; and driving Mr Corkery back to Orange, including time spent at St Vincent’s Hospital in Toowoomba because of the pain he experienced in the course of the trip. By my calculation the amount so claimed is $1,747.50. [82] The defendant acknowledges an entitlement of compensation in respect of attendances in hospital, but submits, relying on Wilson v McLeay23, that the amount awarded should be related to actual expenses. For claims like this Luntz24 indicates that out-of-pocket expenses including fares, accommodation, costs and loss of wages, should be recoverable. [83] There were likely to be expenses involved in Mrs Corkery travelling from Fraser Island to Hervey Bay and back, while Mr Corkery was in hospital there. There were no doubt not insignificant expenses involved in Mrs Corkery’s travelling back from Orange to Hervey Bay, with a view to driving Mr Corkery to the family home. Moreover, while the remainder of the family were at Hervey Bay, Mrs Corkery was unable to enjoy the fruits of the holiday for which, no doubt, payment had been made, because she spent much of her time travelling to and from Hervey Bay and spending time with Mr Corkery. Some allowance for the cost of staying at the Resort should be reflected in the award. It seems to me appropriate, therefore, for this period, to allow $1,500 as a broad estimate of the likely relevant expenditure to be taken into account. [84] On his return to the family home, Mr Corkery required assistance with personal needs. Initially, he assesses the time involved at two hours a day, reducing substantially after some weeks. [85] There is also a claim for driving generally, including medical appointments. Again, this has reduced over time. In addition, Mr Corkery used to assist with the family shopping, but no longer does so, apparently because of the consequences of his injury. He has also attempted to assist in household maintenance, but cannot manage a number of these activities. [86] In all, Mr Corkery claims a total of $19,219.75 including the initial assistance. The defendant submits that the total should be a figure of $12,500. As a broad assessment, I would allow the sum of $15,000, including the amount previously 23 (1961) 106 CLR 523. 24 Luntz, Assessment of Damages for Personal Injury and Death (4 th ed) p 300. -- 17 of 29 -- 18 referred to for the period up to Mr Corkery’s return to the family home in Orange. For this and a number of other instances where an allowance is to be made for interest, I have had the benefit of calculations agreed to by Counsel for the parties. The result of those calculations is that on the sum of $15,000, interest calculated at 5% for 8.3 years amounts to $6,225. Future care [87] Mr Corkery’s claim under this head is generally for care of the kind previously discussed (after his return home). For Mr Corkery it is submitted that, on calculations based on relatively short periods (totalling between two and a half and three hours per week), the present value of future care is a figure approaching $44,000. The defendant submits that Mr Corkery can in fact drive himself; he can do the shopping; and that his inability to do home cleaning and maintenance is quite limited; and accordingly, damages under this head should not exceed $10,000. [88] I accept that there is some ongoing restriction on Mr Corkery’s ability to do home cleaning and maintenance. I also accept that there is some restriction on his ability to do shopping. The effect of the injury on his capacity to drive is likely to be limited to longer trips, which occur less frequently. All in all, it seems to me that an allowance based on the need for assistance for about two hours per week is not unreasonable. By reference to the calculations provided on behalf of Mr Corkery, I assess this amount at $35,000. Other expenses [89] Mr Corkery claims $23,596.46 for medical, hospital, pharmaceutical, travel, and other miscellaneous expenses. Miscellaneous expenses relate to physiotherapy, an orthopaedic mattress to replace a waterbed, gym membership, massages, and some accommodation expenses. [90] In issue are the amount claimed for travel ($3,115.82), and some of the miscellaneous expenses (orthopaedic mattress, gym membership and massages). The defendants, in a document delivered on 25 March 2010, contend for a figure slightly under $21,000. [91] A point taken by the defendant was that the amount claimed for the orthopaedic mattress was not proven. That seems to be correct. Otherwise, it is suggested that there should be reductions of the amounts claimed for gym memberships and massages. These things seem to me to be expenses for appropriate action taken by Mr Corkery to reduce the impacts of his injuries. [92] In all of the circumstances, it seems appropriate to allow an amount of $22,000 for these expenses. Bearing refunds in mind, interest should be allowed on some $15,700. The parties agree that interest on this sum at a rate of 2.875% (half of the rate for the 10 year Treasury Bond at 1 April 2010) for 8.3 years is $3,746.41. [93] A claim for future travel expenses was made in an amount of $2,500. It was at one point not pursued. In any event, I could not find any basis for it. [94] A claim was made for future pharmaceutical expenses in an amount of $543.37. It was admitted. -- 18 of 29 -- 19 -- 19 of 29 -- 20 Mrs Corkery’s claim [95] Mrs Corkery claims damages for loss of consortium. No recent authority has been identified which would be of significant assistance in assessing the amount of this claim. In McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors25 the judgment records that the parties agreed that an amount of $25,000 should be allowed for loss of consortium, but the basis for that amount is not identified. In Lebon & Lebon v Lake Placid Resort Pty Ltd & Ors26 an amount of $4,000 was allowed where a spouse had suffered incomplete tetraplega. However, the parties separated a little under seven years after the accident. In Martin v Nursing Staff Pty Ltd27 an amount of $15,000 was awarded under this head, where the impacts were more significant than in the present case, though some improvement was anticipated on the conclusion of litigation. [96] There is no evidence to suggest that Mr and Mrs Corkery would not continue to be married for many years; rather, the evidence suggests that the Corkery family is a close one. I do, however, accept the evidence of Mrs Corkery about the changes in the marital relationship after the accident. [97] It seems to me appropriate to allow an amount of $12,000 for this claim. In respect of a past component of $6,000, the agreed calculation results in the sum of $996 for interest. Claim by RW Corkery [98] This claim is based on economic loss said to result from the injuries suffered by Mr Corkery. Four components of the claim have been identified: loss resulting from the discontinuance of geological work; loss of other work which it is alleged would have followed from the undertaking of geological work (flow-on work); costs of engaging assistants for Mr Corkery; and losses suffered while Mr Corkery was unable to work. While some parts of the claim are relatively uncontentious, there are major differences between the parties about much of this claim. [99] It is necessary to set out some relevant background. RW Corkery commenced business in 1980. Mr Corkery had graduated in 1972 with a Bachelor of Applied Science with Honours in Geology, and in 1977 had been awarded a Masters Degree of Applied Science in Environmental Pollution Control. He was initially employed with New South Wales Geological Survey, before the consultancy business was established. Over the years, the practice has become very successful, and Mr Corkery is regarded as a pre-eminent consultant in New South Wales. [100] His early employment experience gave Mr Corkery the opportunity to develop a number of skills in relation to clay and shale required for brick and ceramic manufacture. He also has a high level of skill in relation to the identification and investigation of sand deposits. Initially, these skills provided the “cornerstone” for the business of RW Corkery. However, with time, the environmental part of the practice developed considerably. 25 [2000] QSC 54. 26 [2000] QSC 49. 27 Unreported; Plaint No 3468 of 1991; Boulton DCJ, January 1993. -- 20 of 29 -- 21 [101] The geological work involved initial geological mapping of relevant resources, including the taking and analysis of samples of materials. With the commencement of quarrying, more detailed evaluation of the resource was required, including quality control. Not infrequently, the initial engagements led to a further commission to review the nature and extent of the reserves, no doubt as quarrying progressed. In addition, substantial environmental work often followed. Some of that work, however, was closely related to the geological work. It included an assessment of the need for the product, which required an appreciation of the quality of the material, its likely applications, and client requirements. No doubt the work extended to the identification, implementation and ongoing review of environmental protection mechanisms. This work extended, ultimately, to rehabilitation of the site on completion of the project. [102] When Mr Corkery was able to return to fulltime work, he attempted to continue the geological aspect of the practice. However he was not able to do so. The work some times involved long trips; some of the travel was in four-wheel drive vehicles in difficult terrain, followed by walking in rough country; it also involved handling heavy materials and equipment; and bending and twisting. All of these things caused Mr Corkery to experience considerable pain. [103] Attempts were made to maintain this side of the business. One of the non- professional staff provided assistance to Mr Corkery in the early period. On 6 October 2003, RW Corkery employed Mr Warren Cooper, a qualified geological and environmental scientist. It seems to have been hoped that Mr Cooper could take up the geological aspect of the work. In fact, clients came to RW Corkery because of Mr Corkery’s reputation. The evidence was that clients would not accept Mr Cooper as a substitute. That resulted in Mr Cooper performing manual tasks such as lifting, rather than any significant professional work. The attempt was unsuccessful, and Mr Cooper resigned on 2 April 2004. Another non-professional person, Mr Scott Hollamby was employed to assist Mr Corkery. However, it was decided that Mr Corkery could not continue to do this work, even with assistance, and Mr Hollamby only provided assistance to enable the completion of the existing commitments. It should be added that it was the company’s practice not to charge clients for the time of staff whose work simply involved assisting Mr Corkery with things he would formerly have done himself. [104] Subsequently, when a client approached the company with geological work, that aspect of the work was referred to another company. In some cases that appears to have resulted in the loss of environmental work, but much associated environmental work has been retained by the company. However, there is a real prospect for potential clients who might otherwise have approached RW Corkery for geological work, which was likely to lead to other work, no longer do so. [105] Since Mr Corkery’s accident, and notwithstanding the fact that geological work has not been undertaken for a number of years, the business of GW Corkery has continued to grow. [106] Prior to the accident, in addition to Mr Corkery, RW Corkery regularly employed an environmental consultant, though for a period a second environmental consultant was also employed. After the accident, it was common for at least two environmental consultants to be employed in addition to Mr Corkery, though in more recent years the number increased to three, and at times five and even six. -- 21 of 29 -- 22 The number of hours worked by Mr Corkery has also increased, particularly from about 2004. Professional fees have increased in this period, from $1,103,731 in 2002 to $2,063,807 in 2008. However, the increase has been affected by a number of factors. An obvious one is that charge-out rates have increased. For example, in 2002, Mr Corkery’s hourly charge out rate was $145. By 2006 it had increased to $175, and it currently is $210. In addition, some of the work which the company has contracted to perform has been carried out by external consultants. Thus consultant fees were nil in the 2002 year; $101,512 in the 2003 year; for the three years 2004, 2005 and 2006 they averaged about $245,000; and in 2007 were $142,219. [107] Net profits have also increased. Thus in 2001, there was a loss of $65,286. In 2004, there was a profit of $36,702. In 2007, the net profit was $275,134. The picture these figures presents, however, is clouded by the fact that they are influenced by wages paid to Mr and Mrs Corkery, and superannuation contributions made on their behalf. Nevertheless, it is clear that the business of the company has become increasingly successful. [108] Despite this, RW Corkery claims loss related to the fact that it has had to discontinue geological work, as a result of Mr Corkery’s injury. Its case, in essence, is that it has demonstrated that so far as environmental work is concerned, environmental consultants can be employed to perform work which the company is able to attract; whereas for geological work, that has not been so. The result is that the geological work has been lost; whereas if Mr Corkery had not been injured, he could have continued to do that work, and the environmental work which he now does in place of the geological work, could have been performed by an employed environmental consultant. [109] In principle, I consider this approach to be correct. The evidence clearly demonstrates that an attempt was made to continue with geological work, employing a person qualified in this area, at the company’s own expense; but that that was unsuccessful. It would seem that Mr Corkery’s professional reputation in this area is particularly significant, and that clients were not prepared to retain the company unless the work was performed by him. On the other hand, the increase in the number of environmental consultants, and the continued growth in its profitability, demonstrate that this was not true in relation to the environmental work. There is, accordingly, a real reason to think that Mr Corkery’s injury has deprived RW Corkery of the opportunity to earn additional income from geological work. It does not follow that this element of its claim should be allowed in full. [110] It is clear that there has been significant growth in work in the environmental field which RW Corkery has been able to attract. It is by no means certain that this would not have had any impact upon the extent to which Mr Corkery could continue to perform geological work. Further, it is suggested that geological work took up about 20 per cent of Mr Corkery’s time prior to the accident. There are potential difficulties in increasing staff in a way which would have kept the work the company has had since Mr Corkery’s accident, and providing Mr Corkery with the freedom to do that work. The work Mr Corkery did obviously was not a full working week, and was more like one day a week on average; but its demands fluctuated. -- 22 of 29 -- 23 [111] There is also a question as to how long into the future Mr Corkery would have continued to do geological work in any event. He turned 50 very shortly after the accident; and is now 58 years of age. He seems to be enthusiastic about his work generally, and to have been particularly enthusiastic about the geological work. He also referred to one geologist that he knew, who continued to work three days a week well after he had turned 70. [112] The evidence given on behalf of RW Corkery calculating its loss because of the inability of Mr Corkery to continue to undertake geological work is based on an assumption that he would have continued with such work, but for the accident, until 65 years of age. In light of the evidence, there is a real prospect that he might have continued this work for a longer period. It does not seem to me appropriate to make any further discount, by reason of the prospect that he might have ceased this form of work prior to reaching the age of 65. [113] Accounting evidence in support of the claim by RW Corkery was given by Mr Brian McDonald of Pilot Chartered Accountants. It is convenient to deal first with his evidence in relation to past loss attributable to the discontinuance of the geological work. [114] Mr McDonald assessed this loss (to 30 June 2008) by reference to the lost income which would have been generated from the allocation of 20 per cent of Mr Corkery’s hours charged in that period to geological work; from which was deducted an allowance for variable expenses. There was then a further deduction for the cost of employing an environmental scientist for the same period. The result was a figure of $250,914. [115] The basis on which this loss has been assessed is an assumption that, but for the accident, Mr Corkery would have continued to undertake geological work, resulting in the generation of fees; the profit to be generated from those fees was (ignoring any payment to Mr Corkery, and fixed overheads) to be determined by deducting variable expenses; and that an environmental scientist could have generated the income which Mr Corkery actually generated in that period, by performing environmental work. [116] The principal criticism of Mr McDonald’s calculation in the submissions made on behalf of the defendants was that it did not reflect the financial benefit to RW Corkery resulting from the application of Mr Corkery’s time to the environmental side of the business. At least so far as there is an allowance for the cost of employing someone to perform the work which Mr Corkery in fact performed, that submission does not seem to be correct. However, it was also suggested that someone else might not have been able to charge the same hourly rate as Mr Corkery, with the result that the loss calculated by Mr McDonald is overstated. Mr McDonald responded to this by saying that the rate he allowed for the hypothetical environmental consultant was chosen by reference to someone with Mr Corkery’s experience. Given Mr Corkery’s pre-eminence, it seems to me there still remains some doubt about the capacity of such a person to command the same fees as Mr Corkery. [117] Mr Green was retained on behalf of the defendants to consider the claim made by RW Corkery. He raised a number of criticisms of Mr McDonald’s work. -- 23 of 29 -- 24 [118] The primary criticism was that Mr McDonald’s work is based on assumptions derived from the instructions given to him principally by Mrs Corkery. This is, perhaps, reflected in his conclusion that this loss is not “identified”. While, as a matter of fact, the point made by Mr Green is correct, it is only an effective criticism of Mr McDonald’s conclusions to the extent that the assumptions made by Mr McDonald are not otherwise established. As I have indicated, in many respects at least, the factual basis relied upon by Mr McDonald appears to me to have been made out. [119] Mr Green has also noted that, in any event, the number of hours worked by Mr Corkery has increased, since the accident, by approximately 20 per cent. Mr Green suggests that it may have been in the best interest of the company for Mr Corkery to undertake environmental work, which is reflected in his increasing working hours. It should be noted that some of this increase would have occurred prior to the cessation of geological work. Mr McDonald pointed to evidence of the growth in the mining industry generally, supporting the view that there have been favourable economic conditions; and expressed the view that the increased number of hours worked by Mr Corkery was attributable to growth in the mining industry, and not the fact that Mr Corkery ceased undertaking geological work. Again, that seems to be correct. Moreover prior to the accident some 80 per cent of Mr Corkery’s time was devoted to the environmental work. It does not seem to me to be particularly likely that switching the remaining 20 per cent of his time from geological work to environmental work would result in a demand for a further 20 per cent of his time. [120] A consideration of these matters does not lead me to conclude that, if the accident happened, Mr Corkery would not have continued to undertake geological work at approximately the same level as he did before January 2002. I consider the matters raised by Mr Green not to be particularly persuasive. It seems to me that greater weight attaches to the fact that, after the accident, Mr Corkery attempted to continue this work under some difficulty, and at some expense to RW Corkery. There appear to have been a number of advantages to RW Corkery in Mr Corkery continuing to undertake this work, both in terms of connections with potential clients, and the earning of income which, it seems, could not have been earned for RW Corkery by another person with geological expertise. [121] There are, however, specific criticisms made by Mr Green of Mr McDonald’s work. A criticism made of an early report of Mr McDonald’s was that he did not allow for variable overhead costs that would have been incurred in deriving the lost income from geological work. That was acknowledged by Mr McDonald in his report of 23 March 2009, where he made an adjustment for variable expenses. He made no adjustment for fixed overheads, but that approach would seem in principle to be correct. [122] A further criticism made by Mr Green of Mr McDonald’s work was that it had shown that Mr Corkery would have continued this work until age 65. That is a matter to which I have earlier referred. [123] Mr Green expresses the view that the amount allowed in Mr McDonald’s calculation of the cost of staff to perform the environmental work is too low. He produced a calculation (exhibit 19) which showed that the ratio of wages paid to staff other than Mr Corkery, to the fees earned by them, from the date of the accident to 30 June 2008, was approximately 63 per cent. In Mr McDonald’s -- 24 of 29 -- 25 calculations the ratio allowed for the salary of an environmental scientist to the lost fees are slightly below 30 per cent. [124] I am inclined to the view that Mr McDonald’s approach to the amount to be deducted for the cost of staff is likely to be correct, unless it can be demonstrated that some other person (such as someone providing some office support) would have been engaged in assisting him in this work, for whom no fee would have been charged. There was no suggestion that that would be the case. Mr Green’s calculation appears to include all staff other than Mr Corkery, regardless of whether, or to what extent, clients were charged for the hours for which they worked. It was the practice of RW Corkery to charge an hourly rate for the work of both professional and non-professional staff on individual projects. It seems to me that there is a real prospect that the ratio of wages paid to staff to the fees they earned might vary significantly from one staff member to another. Overall, it seems to me that Mr McDonald’s approach is to be preferred. [125] Mr McDonald has calculated the loss to RW Corkery associated with the discontinuance of geological work to be $250,914 up to 30 June 2008. It seems to me to be appropriate, in view of the time which has passed since then, to calculate past loss up to the present, based on his figures. I would therefore allow an additional amount of $135,000 for the additional period of almost two years, resulting in a total loss calculated in accordance with Mr McDonald’s approach of $386,000. [126] I have previously indicated the reasons why that figure may need to be reduced. Taking a broad approach to this question, it seems to me an appropriate amount to allow for past loss of this character as $250,000. [127] This loss dates from 1 July 2004. The agreed calculation for interest on $250,000, at the rate of 2.875% for 6 years, is $43,125. [128] For the future, I again start with Mr McDonald’s calculation. The period over which this loss should be allowed in the future should be reduced by approximately two years. On that basis, it seems that the total calculated by Mr McDonald should be reduced by approximately $94,000, resulting in an adjusted calculation of the net present value of that loss of approximately $380,000. Making a similar adjustment for the facts mentioned previously, I would allow $240,000 for this future loss. [129] RW Corkery also makes a claim for loss of what is described as flow-on work, said to result from the fact that RW Corkery did not continue to undertake geological work after 30 June 2004. [130] I have previously referred to Mr Corkery’s evidence about the significance of this type of work to the company. His evidence was supported by that of Mrs Corkery, who had been the business manager of a company for a period approaching 25 years. She also produced a document, included as an appendix to a report of Mr McDonald dated 9 September 2009, which gave information about the significance of this work to the company, particularly in relation to its capacity to lead to later engagements for other work. [131] The history of the company’s activities, apparent from the evidence given by Mr and Mrs Corkery, tends to support the view that geological work has been important -- 25 of 29 -- 26 in generating other work. The fact that the company was prepared to attempt to continue the work after Mr Corkery’s injury, by engaging an assistant for whose time clients were not charged, and by attempting to have another geologist perform the work in place of Mr Corkery, in my view provides some objective support for the evidence given by Mr and Mrs Corkery. I therefore accept that this work, had it been continued, would have been likely to lead to the engagement of the company for other work. However, I am conscious that these benefits have not been entirely lost. The company has been able to subcontract work of this kind to others on some occasions, though the outcome has not always been satisfactory from the company’s point of view. [132] The document prepared by Mrs Corkery identifies a number of instances where an initial engagement to undertake geological work led to a number of other engagements; and one where Mr Corkery’s inability to perform the work resulted in a very significant reduction in the fees generated by the company (Project 441). [133] It appears from Mr McDonald’s report that his calculation of the amount to be attributed to this claim is based upon an estimate by Mrs Corkery of the value of this loss from 1 July 2004 until 2017 in the sum of $250,000. Mrs Corkery’s evidence was that the figure of $250,000 was simply the amount of gross fees lost in relation to one not particularly large project over a period through to 2017, being a figure which she considers she would be comfortable to claim as indicative of the loss suffered by the company. [134] The submission made on behalf of the defendants was that, in effect, the company has been able to perform other work, in lieu of any lost flow-on work. [135] In my view, at least in one instance, the loss of such work was identified in Mrs Corkery’s evidence. There is likely to have been a loss of net profits to the company as the result of some instances of the loss of such work. I am also conscious that such losses can occur entirely without the knowledge of the party suffering the loss. In those circumstances, I propose simply to make a global award of $50,000, of which I will attribute $20,000 to past loss. The agreed calculation of interest on this amount (at 2.875%, for 8.3 years) is $4,772.50. [136] RW Corkery incurred costs of providing assistance to Mr Corkery during the period when he attempted to continue to undertake geological work. It subsequently made available one of the employed staff to assist Mr Corkery in his environmental work, on a much more limited basis. The defendants submit that these claims should not be allowed to any significant extent, because RW Corkery failed to prove the extent to which staff were engaged in these tasks. [137] Mr Corkery’s evidence demonstrates that, in the early period after the accident, assistance was provided to Mr Corkery on average three days per week, by a person employed fulltime. This rather suggests that an allowance was made for time spent by that employee doing other work. [138] For another employee, Mr Cooper, it would seem that the full amount of his wages for the period of employment has been included in the calculation, though other work was done. For Mr Hollamby, the claim seems limited to relatively small amounts, consistent with it being limited to times assisting Mr Corkery in a capacity for which fees were not charged. The claim includes an amount for an employee -- 26 of 29 -- 27 who had resigned, but who agreed to stay for an extra week if additional expenses were paid for her. [139] This claim is, in total $108,590. The calculation of this amount by Mr McDonald was for the period to 30 June 2008. To allow for the time which has elapsed since then, it seems to me appropriate to add another $7,000. To some extent, the criticism made of the claim on behalf of the defendants has some justification. I therefore propose to allow an amount of $100,000 for past loss of this kind. [140] The most significant part of this claim was incurred prior to 30 June 2004. I therefore propose to award interest on this amount for a period of six years. The agreed calculation of interest on this amount for this period, at a rate of 5.75% (the 10 year Treasury Bond rate at 1 April 2010) is $34,500. [141] There is a claim for future expenses of this kind, based on the need for assistance for Mr Corkery one day a month in performing environmental work. Again, on behalf of the defendants, it is submitted that the claim is likely to be significantly overstated, and that there is no basis to assess the loss. It seems to me that an attempt was made by witnesses called on behalf of the plaintiff, particularly Mr Corkery, to assess the extent to which this will occur. The amount claimed which was calculated by Mr McDonald from 1 July 2008 until Mr Corkery would turn 65. It seems to me that this should be reduced, as a calculation of the present value of a future loss, by about $4,500, resulting in an adjusted calculation of this loss of about $18,000. Because some allowance should be made for contingencies, I would award the sum of $15,000 under this head. [142] The final claim made on behalf of RW Corkery is a claim in respect of the time immediately following the accident, when Mr Corkery was not able to perform any work. [143] The amount claimed initially was $41,418. It was calculated by reference to an average number of hours worked per week by Mr Corkery, and his then current charge out rate. As initially calculated, the amount was $41,418. [144] There are a number of difficulties with this claim. First, it became apparent that the claim should have been made for a period of five weeks, rather than six weeks. That resulted in a reduction in the calculation to $34,515. [145] The principal attack made upon this claim on behalf of the defendants was that, when he returned to work, Mr Corkery worked extra hours, to make up for time lost. In other words, there was no loss because Mr Corkery simply did the work at a later point in time. [146] There is some substance in the submission made on behalf of the defendants. Nevertheless, it does not seem to me that the claim should be disallowed in full for this reason. It would logically follow that, had Mr Corkery not been injured, he would have had time after March 2002, in which to perform additional work and generate additional fees for the company, which in fact was spent catching up for the time when he did not work immediately after the accident. -- 27 of 29 -- 28 [147] I also treat the calculation advanced with a little caution because it reflects a number of hours charged per month which is some what higher than the average in the years 2001, 2002 and 2003 (as shown in exhibit 18). [148] Taking these factors into account, it seems to me appropriate to award a sum of $20,000 for this loss; and to allow interest on it for a period of eight years. The agreed calculation, at the rate of 5.75%, results in interest of $9,200. Summary of damages awarded Mr Corkery General damages $60,000 Interest $4,980 Past expenses $22,000 Interest $3,746.41 Past care $15,000 Interest $6,225 Future care $35,000 Future pharmaceutical expenses $543.00 Total $147,494.41 Mrs Corkery Damages $12,000 Interest $996 Total $12,996 RW Corkery Past loss of income for geological work $250,000 Interest $43,125 Future loss of income for geological work $240,000 Loss of flow on work $50,000 Interest $4,772.50 Past additional wages $100,000 Interest $34,500 Future additional wages $15,000 Other lost income $20,000 Interest $9,200 Total $766,597.50 -- 28 of 29 -- 29 Conclusion [149] I propose to give judgment in favour of the first plaintiff in the sum of $147,494.41. I propose to give judgment in favour of the second plaintiff in the sum of $12,996. I propose to give judgment in favour of the third plaintiff in the sum of $766,597.50. -- 29 of 29 --