De Candia v Holmes [2005] QDC 242

DISTRICT COURT OF QUEENSLAND CITATION: De Candia v Holmes [2005] QDC 242 PARTIES: ANNABELLA DOUGALL DE CANDIA (ALSO KNOWN AS ANNABELLA CONNOLLY) Plaintiff v ELSIE JANE HOLMES (ALSO KNOWN AS JEAN HOLMES) Defendant FILE NO/S: BD2170 of 2002 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: District Court of Queensland, Brisbane DELIVERED ON: 10 August 2005 DELIVERED AT: Brisbane HEARING DATES: 20,21 July 2005 JUDGE: Robin QC DCJ ORDER: (Subject to submissions) Judgment for the plaintiff for $23,367.85 and costs on Magistrates’ Court scale CATCHWORDS: Defendant occupier held liable in negligence – where plaintiff was injured when she fell in the dark, walking off a low unguarded ramp – ramp gave access to back door of house where plaintiff failed to rouse the defendant who was expecting her arrival – plaintiff’s intention was to walk to front door to attract defendant’s attention – plaintiff’s contributory negligence – she had previously visited (and stayed at) the house, using the ramp, which she had successfully ascended on the night – danger assessed for fractured shoulder of plaintiff (77 at trial) – large Griffiths-Kerkemeyer component – whether plaintiff entitled to recover special damages for treatment and car washing of which defendant was never apprised – UCPR rule 548. COUNSEL: Mr R A Myers for the plaintiff Mr D J Kelly for the defendant SOLICITORS: Shine Roche McGowan for the plaintiff Tress Cox for the defendant REASONS FOR JUDGMENT [1] The parties are sisters-in-law, the plaintiff being married to the defendant’s younger brother. The defendant’s unwillingness to acknowledge liability in respect of a fall -- 1 of 38 -- 2 the plaintiff had at her house on 8 June 1999 (perhaps at the insistence of an insurer) has created a rift in the family. At that date, the plaintiff’s and the defendant’s ages were about 71 and 76 respectively. The defendant was a widow living alone, hard of hearing and apparently very security conscious. [2] On the day in question, the plaintiff’s husband, Mr Connolly, was admitted to the Wesley Hospital for heart surgery. They lived at Wolffdene. As a favour to them, the defendant agreed to take in the plaintiff’s dog, and that the plaintiff might stay with her overnight while the hospitalisation continued. [3] Judging from the photographs in Exhibit 3, the defendant’s property at 9 Balcha Street, Holland Park slopes fairly steeply from left to right from the viewpoint of an observer in the street. It seems also to slope from front to rear. The house (now demolished) was at or close to ground level on the uphill side (at the front at least), and was raised several courses of bricks on the downhill side. There were four or five steps to the centrally located front door, more steps centrally located at the back door, which gave on to a laundry and patio area some three steps down from the main floor level of the house. This external laundry area was able to be locked off (as it was at material times) by means of a batten door. At some time, said to be about 40 years before the plaintiff’s fall, the late Mr Holmes constructed a concrete ramp from the laundry/patio down to the backyard, which featured the ubiquitous Hills Hoist. The ramp appears to be about a metre wide. On the uphill side, it is bordered by concrete or brickwork (to the equivalent of five or six courses at the bottom) supporting the patio and a garden bed raised to be flush with it. On the downhill side, the top metre or so of the ramp is bordered by the brickwork on which the house rests (chamfer boards above), the lower metre or so being open. Where the wall stops, the ramp is about two and a-half bricks’ height above ground -- 2 of 38 -- 3 level. At ground level there is a narrow concrete rim bordering the back wall of the house and the ramp. Beyond it, and at the bottom of the ramp was lawn. The slope of the ramp was estimated to be about 15 degrees. The lawn sloped away to the side and the rear of the property. At the material time there was a driveway along the lower side of the house leading to a garage in the back corner. A more open carport had been constructed on the uphill side of the garage, apparently in a “cut” to permit it to have the same floor level. There may not have been concrete tracks, but one could drive comfortably into the carport. This was a consequence of an associated “cut” to permit the driveable area to fan out to the width of the carport. It created a definite step to the lawn area described above, the height of which is difficult to gauge. The photographs in Exhibit 3, taken in 2001, show a mesh fence in place atop that edge, one end of which is a gate adjacent to the bottom back corner of the house. The evidence was that the fence and gate were installed after June 1999. They appear to be located a considerable distance (six metres or so) from the open side of the ramp. [4] Mrs Holmes had soffit-mounted security lights (two lights in each) in front of the front door and alongside the back wall of the house close to the ramp, but a foot or so on the downhill side, so that the associated sensor device which triggered illumination would not be triggered by a person descending the ramp until at least some part of his or her body protruded beyond the corner of the house there. Sadly, the Plaintiff was engaged in just that manoeuvre when her accident happened. She hit her head (or neck - bringing to light or aggravating symptoms associated with degeneration in her neck) on the house; more seriously, she sustained a “four part fracture of the proximal right humeral head and neck”, to adopt Dr Curtis’ description. -- 3 of 38 -- 4 [5] The Plaintiff in her evidence-in-chief describes, as well as she could do it, what happened at page 19 ff: “I want you to tell his Honour, if you will, about any arrangements that you made on the 7th of June of 1999 with Mrs Holmes. What can you tell his Honour about that?-- Well, I had phoned her because she knew, of course, previously, of the appointment at the Wesley Hospital for her brother, but I rang on the 7th to say that we would call up in the morning and leave my little dog with her, and that I would stay the night. I thought, well, depending on how he was, whether I stayed two or three days or one day, but I had to leave the little dog there, I couldn't take it to the hospital, so I made that arrangement on the 7th. And the next day we called around about lunchtime and left our little dog and went - proceeded to the hospital, where I stayed for the rest of the day, and then I went to my daughter for tea and then I rang Jane Holmes about 7.30, told her I was just leaving Ashgrove, I would be about half an hour----- Right?-- -----which was right. I got there just a couple of minutes after 8 o'clock. Now, just tell his Honour what you - you were going to her home from Ashgrove?-- Yes. … You just take the story up from there?-- Yes. Well, I drove as - when I was staying - if I was just visiting I would park in front and go to the front door but as I was staying, which I'd done on probably three other occasions, I drove down the back and into the car - well, I call it a carport. It was open. Her garage was locked with her car in but this was open, so I went in there and took my things out, locked the car and proceeded back - it's a wall right around but it gets not as high towards the house. It probably was about 14 inches high, from memory, 15 inches, and then I stepped up onto that and went - the light - yes, the sensor light was on, and I went up the ramp to the back door, to the laundry door, and tried to arouse her by knocking and knocking and calling, and, of course, the sensor light had gone off, and so I thought, well, I had better go - try the front door, so I proceeded down, you know, it was very dark because it was a cloudy night and no lights on, and, of course, the sensor light didn't pick me up. I had fallen and was still in the dark lying on the ground at that point. … Now, you have described going up there and banging and calling and the like. Just take it up from there. When you couldn't rouse her, what did you do?-- I decided to go to the front door so I started to proceed back down the ramp----- -- 4 of 38 -- 5 What happened?-- -----in the darkness and I just remember kind of walking in air. I called out to myself, "Oh, my God. I'm falling", and then I was on the ground. Were you conscious of taking any deviation in your path? Were you conscious of turning to the right at any time before you fell?-- Not conscious of it but I would have had to turn to the right to go around to the front. It happened so quickly. What happened next? You were on the ground. Just tell his Honour what parts of your body hit what parts of the ground and anything else about?-- My head hit the wall. Fortunately I wasn't knocked out, and I was kind of buckled up a bit and my arm - I landed on my right arm which was badly fractured, the humerus, and I couldn't move. It was absolutely too painful. What did you do?-- Just called and called for help, called, "Jean, Jean, I've fallen", but it was a long time before anyone responded. No-one responded until the dogs - the whole neighbourhood - the dogs started barking and then my little dog started barking which must have made her decide to come and look. … What happened next?-- She came. She put the lights on and came out and found me lying on the ground. After a time did someone else come?-- Yes. I couldn't move and she said, "I'll get my neighbour", and she proceeded to go to the fence to call and she said, "He wouldn't hear me", and she went back up inside to phone him.” [6] The neighbour was Mr Farrell, who was called in the Defendant’s case. I felt considerable sympathy for him, thinking that those calling him might have taken more trouble to prepare him for some of the questions he was asked. I took it to be by common consent that his evidence that the fence and gate were there in 1999 was wrong. Thus, by default, it is difficult to accept his evidence where it directly conflicts with the Plaintiff’s. Reliance was placed on his assertion that his own dog would have been barking wildly, alerting him if the Plaintiff had really been banging on the house trying to attract the Defendant’s attention. I do not think much turns on supposed conflict between him when he said the Plaintiff was sitting on the -- 5 of 38 -- 6 ramp on his arrival and her (when she said she was sitting on the ground leaning against the back wall); she might have moved while he was being summoned. [7] The defence theory that the Plaintiff’s version is unreliable reconstruction gains some support from the Defendant’s statement made to a loss adjustor on 12 October 2001 which became Exhibit 9. Sadly, during the inordinate amount of time that has passed since the accident, Mrs Holmes has been diagnosed with a large extradural left frontal tumour which is quite aggressive; she suffers some frontal lobe impairment of judgment and would not now be capable of giving evidence coherently. This statement came in under s.92 of the Evidence Act 1977. Mrs Holmes says she was expecting the Plaintiff “around 8pm”; her statement goes on: “8. I did not make any specific arrangements or plans in relation to her arrival. On previous occasions that Mrs De Candia has visited my house she has quite often been running late and I don’t like to keep doors open at night. Also there are sensor lights at the front and rear of the house which would come on when someone came to the front or back doors. 9. I was not aware of Mrs De Candia’s arrival and didn’t hear anything until the next door neighbour’s dog started barking. At that time I went out the back and found Mrs De Candia sitting on the ground near the ramp from the laundry. 10. Mrs De Candia told me that she drove into the yard and parked her vehicle under the carport at the rear. She then collected her possessions from the car and came to the front door, but couldn’t make me hear. 11. She told me she then went to the back door, but again couldn’t make me hear. 12. She told me that she then headed towards the driveway and fell near the exit to the laundry. 13. At the time she blamed her shoes, she said they slipped. I recall that she was wearing a light slip on style of shoe but I don’t know what the sole was made of. 14. Mrs De Candia had both arms full of bags and other items.” -- 6 of 38 -- 7 The statement notes that the front door has a bell on it, but this is of little moment, as the bell could not be accessed when, as was the case on the night of 8 June 1999, a locked security screen precluded access to the front door to allow access to the bell. Mrs Holmes also says: “18. There has been other occasions where Mrs De Candia could not make herself heard when she arrived at my home and using her mobile phone she has called me to say that she was there at the house. 19. Mrs De Candia told me she had been knocking and calling out prior to having the accident … 26. Before the accident Mrs De Candia would visit the house approximately once a week and sometimes stay overnight. This has been occurring for a period of 2 to 3 years. 27. Because Mrs De Candia had stayed at the house on so many occasions I believe she would have been very familiar with the house and its layout. 28. I cannot remember whether Mrs De Candia would have used the washing facilities in the laundry very often. But there is a toilet in the laundry which she would have used and been familiar with. She would also have used the rear exit via the laundry to go to the back yard and the garage area. … 35. In late September 2001 I received a letter of demand from Mrs De Candia’s daughter. I have given that letter of demand to the insurance investigator at the time of providing this statement. 36. In that letter of demand it is mentioned “my mother is too ill to engage in communication at this stage”. I am not aware of any illness that Mrs De Candia may be suffering. 37. I have never found the laundry ramp to be dangerous or slippery and no one else has ever told me that they felt the ramp was dangerous or slippery. There is a handrail attached to the house running alongside the last two thirds of the ramp. 38. There have been no other incidents at the house where persons have been injured.” -- 7 of 38 -- 8 There is no reason to doubt what Mrs Holmes says, but the Defence face a virtual inevitability that oral evidence which can be tested in cross- examination, such as that of the Plaintiff, will be accepted over a s.92 statement in case of a conflict, where there is no inherent improbability or other feature vitiating the tested oral evidence. On analysis, it would not seem to matter whether the Plaintiff went to the front door first or not. I appreciate that Mr Kelly’s point is that if she is vulnerable about that she should not be relied on in other respects. Generally speaking, I would accept the Plaintiff’s evidence on liability issues, except that I think she may have understated considerably her familiarity with the Holmes residence and that Mr Farrell may be correct in asserting that the Plaintiff’s outer garment was removed before the ambulance came for her. [8] It does not matter, in my opinion, whether the loss adjustor, Mr Capper, is correct in saying that the rear sensor lights (which may have been reset after the accident – another respect in which Mr Farrell’s chronology may be awry – here the possible conflict is with hearsay Mr Capper got from Mrs Holmes) were triggered by him on an occasion in 2001 as soon as he (or some part of him) passed the corner of the house in descending the ramp. I do not think that the short sight of the terrain which such operation of the lights would afford would have prevented the Plaintiff’s fall. In my view she was committed to turning right close to the back wall of the house; encumbered with items she was carrying, she would probably not have noted the danger at the side of the ramp. [9] With considerable reservations, I have concluded that the ramp did constitute a danger. There is the unfortunate combination of a vertical fall off the side of the -- 8 of 38 -- 9 ramp, which a stranger might well not expect, and a reasonably steep falling slope, so that the regularity one would expect of conventional steps is missing. There was no guard rail (by way of a continuation of the one fixed to the side wall of the house described by Mrs Holmes) which would prevent a person’s physically stepping off the ramp; there was no highlighting of the edge of the ramp, or continuous illumination. [10] Ordinary householders have some reason for fearing the law as a monster lurking to afflict them with liabilities should anyone suffer injury on their premises, about which there may be nothing extraordinary and which they use in perfectly ordinary, “reasonable” ways. Understandable sensitivity about this may explain the success of the appeal in Jaenke v Hinton [1995] QCA 484. Recently in Thompson v Woolworths (Queensland) Pty Ltd [2005] HCA 19 in para 36 of their reasons, five Judges of the High Court took the opportunity to state that: “The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community's standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety.” See the New South Wales cases of Graham v Dinsdale CA 40427/97, BC 9807638 and MacKinnon v The Proprietors, Strata Title Plan No.14411 CA 40689/98, BC 200001682. [11] What has tipped the balance in the Plaintiff’s favour is that the Defendant was expecting her to arrive, and probably within the hour after the Plaintiff’s phone call. It was obviously dark. I think Mrs Holmes’ duty was to act reasonably to guard against foreseeable risk of injury to the Plaintiff, whether she was at the front door -- 9 of 38 -- 10 or at the back door. Mrs Holmes, understandably, relied on the sensor lights, which functioned. I think it was foreseeable that (as had happened before) the Plaintiff might fail to attract Mrs Holmes’ attention, and that she might move away. I think it was reasonable, if physical arrangements were not in place to make the ramp area safe, to have provided some lighting, for example from the laundry. [12] The Plaintiff was allowed to present evidence of Mr O’Sullivan, an ergonomist, consideration of the question whether he possessed any relevant expertise being reserved. Mr O’Sullivan was not brought in until last year; he had no opportunity to see the premises. He has identified Building Code provisions and Australian Standards, and the like with which arrangements at the Defendant’s premises may not have complied – unsurprising as the premises reached their current state before those codes/standards were adopted. The present context is one in which relevant factors and considerations appear to be obvious. Mr O’Sullivan’s experience is undoubted, but I cannot conclude that he possesses any expertise which qualifies him to express expert views entitled to greater respect than those conclusions which commonsense and common experience would point to. Whatever the outcome of the case, the Plaintiff is not entitled to charge the Defendant with costs in respect of Mr O’Sullivan’s evidence. [13] As it happens, he concluded (as does the Court) that the Plaintiff fell in the circumstances she described. The defence charges her with reconstruction, not only with having no idea of how she fell, but with having given different accounts from time to time, for example to doctors. It was suggested that the Court has no way of knowing whether the Plaintiff stepped off the side of the ramp (into air), or slipped while proceeding down the ramp, or in some other way. It was suggested the Court is asked to “choose between guesses”, contrary to Jones v Dunkel (1959) 101 CLR -- 10 of 38 -- 11 298, 304-05, per Dixon CJ, as referred to and applied in Miller v Livingstone Shire Council [2002] QSC 180, especially at [17]-[18]. As appears there, in West v Government Insurance Office of NSW (1981) 148 CLR 62 at 66, four Judges of the High Court observed that “it is well to recall what was said by Dixon CJ”, noting that Judges below, in attempting to draw inferences from certain facts, had reached opposing conclusions. I find myself here able to reach a state of “reasonable satisfaction” about an “affirmative conclusion” regarding to the Plaintiff’s fall – as the Chief Justice required. [14] [19] in Miller is: “A similar conclusion was by Stephen J in Girlock Sales Pty Ltd v Hurrell (1982) 149 CLR 155, 116-62 where he set out a passage from an earlier decision of the High Court in Bradshaw v McEwans Pty Ltd (Unreported; 27 April 1951) as follows: “‘You need only circumstances raising a more probable inference in favour of what is alleged ... where direct proof is not available it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture ... All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood.’” Here, there is direct evidence from the Plaintiff. I do not think the effect of it is destroyed by her reference to “slipping” in contexts where there was no particular occasion to provide an exact description of the mechanism of her fall. It appears no one had slipped on the ramp in four decades. Even if the Plaintiff’s evidence is discounted to the point where inferences must be relied on, the mechanism of falling which she asserted is, I find, the likely one. -- 11 of 38 -- 12 [15] The two unreported NSW decisions referred to above and Jaenke v Hinton involved plaintiffs, like the present Plaintiff, who had safely got to a location in the defendant’s premises, and then fell while moving away from there. A point of distinction is that Mrs Holmes knew Mrs De Candia was coming, making it foreseeable (not fanciful) that she might leave the back patio via the ramp after failing to be let in. In MacKinnon, the second defendant’s son knew of the plaintiff’s presence, but was not told of her intention to leave, to give him the opportunity (which she had herself) to turn on a conveniently located light switch. In Dinsdale, the defendant was unaware of the plaintiff’s coming: she had gone to the wrong house. In Jaenke Williams J noted that there was “nothing in the evidence suggesting that the No 2 appellants knew the respondent followed that route” when she was delivering the milk (crossing side boundaries rather than return to the road) although “it was the logical way to take.” The judgement sets out the influential statement of Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40, at 47-48: “A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone, [1951] AC 856 may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far fetched or fanciful. Although it is true to say that in many instances the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviated action and any other conflicting responsibilities which the defendant may have. It is only -- 12 of 38 -- 13 when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” Mrs Holmes’ well-founded expectation that the Plaintiff would attend at her premises, in my view, has a bearing on the standard of response to be required of her in respect of the risk of injury to the Plaintiff. It is not a case like Bolton v. Stone where the batsman’s straight drive of a cricket ball out of the ground was so exceptional that while it “might reasonably have been foreseen”, the risk of consequential injury to a person on the road “was so remote that no reasonable person would have anticipated it”. (See the headnote.) [16] The amended statement of claim particularises the Defendant’s negligence as: “(a) failing to have a rail on the side of the ramp where the plaintiff fell; (b) failing to ensure that the area in question was lit; (c) failing to permit the plaintiff to enter via the back door and thereby avoid the necessity of the plaintiff having to exit the premises via the ramp when, as the defendant knew, or ought to have known, the area where the plaintiff was walking was unlit; (d) failing, when she knew or ought to have known that the plaintiff would be in peril if she exited the back of the premises when it was unlit, to suitably warn the plaintiff of the risks associated with such an exit; (e) leaving an internal door (between the laundry and the kitchen) closed and thereby making it more -- 13 of 38 -- 14 difficult for her to hear the plaintiff (when at the back door) attempting to enter the premises; (f) failing to keep a lookout for the plaintiff when she knew or ought to have known that the plaintiff would soon be attempting to enter the back of the premises; (g) failing to ensure that the plaintiff could enter the premises safely without the need for the plaintiff to attempt to make an exit from the back of the premises via the ramp when such area was unlit and when the ramp did not have rails on both sides of it; (h) failing in all the circumstances to take any or any adequate precautions for the safety of the plaintiff; (i) in all circumstances, exposing the plaintiff to a risk of injury which could have been avoided with reasonable care; (j) failing to observe that the plaintiff was in a position of peril in all the circumstances; (k) failing to leave the laundry light on.” The warning envisaged could have been given by marking out the edge of the ramp in some way. It would have been more or less simple for Mrs Holmes to avoid the “failures” complained of in (a)-(g) or (k). In my opinion, she was entitled to regard the Plaintiff as familiar with the ramp and its surrounds, but not to the extent of her own familiarity. It seems unnecessary to identify particular failings from the selection made above; avoidance of any one would probably have prevented the accident and, in my view, would have precluded the Defendant’s liability – which also, I think, would have been precluded, had the sloping ramp-step combination been absent. In Jaenke, reference was made to Bartlett v Robinson (1981) 27 SASR 342, decided under the old law whereby occupiers owed different duties to different categories of entrant. There, the unsuccessful milkman tripped where one slab in a concrete driveway had become raised three- -- 14 of 38 -- 15 quarters of an inch higher than its neighbour. The Court’s treatment of what White J at 348 called “trivial departures from perfection in the state of domestic premises” appears to have hardened in the 30 years since Mr Bartlett tripped. (I think the public footpath cases, culminating in Ghantous v Hawkesbury City Council (2001) 206 CLR 512 may be in a special category.) In Junkovic v Neindorf [2004] SASC 325; BC 200406787, the 57 year old plaintiff was injured on a sunny morning when she fell on the left side of the driveway within the defendant’s property, as Gray J said at [52]: “Ms Junkovic’s attention was drawn to garden goods displayed on the right side of the driveway, probably at or under a carport. She was not looking where she was walking and did not notice the uneven surface. She stepped with her right foot over an expansion of the joint between two concrete slabs where one side was higher than the other. The difference in height caused unevenness. The height differential between the two concrete slabs was approximately 10 or 12 millimetres.” At the trial, the Magistrate found negligence in the defendant, no contributory negligence in the plaintiff. There was a successful appeal to a single judge of the Supreme Court, apparently based on Ghantous, and the defendant’s duty of care being “a duty to exercise reasonable care to eliminate reasonably foreseeable risks of harm to a pedestrian exercising a reasonable care for her own safety, bearing in mind any particular advantages enjoyed by the pedestrian and making some allowance for inadvertence on the part of the pedestrian.” The Judge considered, had there been negligence in the defendant, the plaintiff was guilty of contributory negligence to the extent of 30%. By majority, the Full Court restored the Magistrate’s finding; all three Judges accepted there was contributory negligence to the extent of 30%. In Jaenke, the Court of Appeal made no adverse comment regarding the trial Judge’s apportioning 50% responsibility against the plaintiff. -- 15 of 38 -- 16 [17] Contributory negligence is pleaded against the Plaintiff and ought to be found against her, at least to that extent. She failed to take proper care for her own safety. She had used the ramp (with the benefit of illumination) only minutes before her accident; she had used it previously when staying with the Defendant, which she acknowledged has happened at least three times, and I would think she observed the ramp in its context on dozens of occasions on visits when she did not stay overnight. She knew of the changes of level in the Defendant’s back yard, not only at the ramp, but also at the step down to the driveway. (Compare Callinan J’s observation in Ghantous at 639 that “The world is not a level playing field”.) She did not retrace her steps down the ramp, but ventured into other territory which she must have known from personal observation was not level or free of some drops. She did this knowing she could not see the path she was intent on treading and obviously failed to exercise the caution which self-preservation would require in such circumstances. [18] The Plaintiff was taken to Greenslopes Hospital, but left after three days for the home of her sister, a trained nurse, on the basis that the Hospital could do nothing for her. It seems that the judgement was made that in view of her age, operative intervention which might well have been considered in respect of a much younger person was considered to be unwarranted, having regard to the risks. The fractures were left to heal themselves on the basis of what the radiological examinations revealed, and they did so effectively. The only treatment the Plaintiff undertook was physiotherapy, to assist in mobilisation; she acquired a sling at the physiotherapist’s suggestion, which cost $30. The Plaintiff undoubtedly suffered a good deal of pain as the fracture healed and associated inflammation subsided; continuing intermittent pain at less severe levels is probably due to adhesions of some kind. The Plaintiff cannot work comfortably with her (dominant) right arm above shoulder level. -- 16 of 38 -- 17 [19] Dr Curtis saw the Plaintiff on 10 August 2004 and provided her with a report which concludes as follows: “Mrs De Candia is a 76 year old right handed pensioner who sustained a comminuted facture subluxation of the right shoulder joint in a fall at a home on the 7th June 1999. She was treated conservatively and would have been temporarily totally disabled for many weeks. The facture eventually proceeded to sound bony union, but she remains aware of residual pain and stiffness of the right shoulder which is particularly troublesome at night time. On examination, there is considerable restriction of movements of the right shoulder joint and slight deformity is present. She has some restriction of movements of her neck. X-rays show the facture is united in good overall position. X-rays of her neck show some diffuse degenerative change. Her condition has stabilized and according to the Guide to the Evaluation of Permanent Impairments of the American Medical Association 5th Edition Table 15-5 Category 2, amounts to some 5- 8% impairment of the whole person. However, this is due to degenerative change of the cervical spine which I do not feel has been adversely affected by the fall. The condition in her right shoulder has now stabilised and represents some 9% impairment of the right upper limb as a whole, which could be alternatively expressed as 5% impairment of the whole person. Such impairment is permanent and wholly attributable to the effects of her injury of the 7th June 1999. Her symptoms are contained with conservative measures which she will need to continue indefinitely, including analgesic medication, application of heat, liniment and occasional physiotherapy. There is no indication for operative intervention. Long term complications are not anticipated. She has not been working for a number of years. However, she has difficulty performing household chores and will need certain domestic assistance indefinitely. There will remain permanent curtailment of her recreational and social activities.” -- 17 of 38 -- 18 Dr Curtis noted that the Plaintiff had suffered “crush fractures of the 11th and 12 th thoracic vertebral bodies in a motor accident 35 years ago with persistent back pain.” Also that: “in October 2003 she sustained another fall and fractured the distal end of the right radius. This was treated conservatively.” It seemed an attempt was made in re-examination of Dr Curtis to get him to link the Plaintiff’s neck condition with the accident, on the basis that prior to it, there had been no problems with her neck. The impetus for such an exercise was the defence attempt to relate to the neck rather than to the shoulder, a course of suprascapular nerve injections, which the Plaintiff underwent between March and August 2004. The defence was given no inkling of the Plaintiff’s claiming in respect of those injections until the eve of the trial (literally) – one of the concerning aspects of “ambush”. The conclusion is that the costs of those injections, for want of a better solution, should be allocated equally as between the neck and shoulder. [20] Dr Curtis accepted (as did the Defendant’s expert, Dr Dickinson) as related to the accident on 8 June 1999 the difficulty the Plaintiff has with overhead tasks such as hanging washing out on a high line and attending to her hair, likewise other tasks requiring application of pressure by her right arm, such as cutting hard vegetables like pumpkin or mashing potatoes. It is hard for her to extend her right arm to drive her vehicle for long periods. Like virtually every Plaintiff, Mrs De Candia says she has difficulty vacuuming. Former activities of sewing, knitting and gardening have been curtailed. [21] Dr Dickinson’s opinion was: -- 18 of 38 -- 19 “Mrs de Candia has suffered from a fractured neck of her right humerus from which she has an excellent outcome. She does have some restriction of movement and a little discomfort around the shoulder but, in general, it functions well. She needed some help in the early period following the injury and subsequently when she went home, she had people coming to help her intermittently. She is still restricted from certain of her activities as outlined above. She does have an impairment of her right shoulder which is equivalent to 6% of the right upper limb. She requires no further treatment and will not develop any degenerative change as a result of this injury. She does not have any aggravation of any other pre-existing abnormality as a result of the fall.” He saw the Plaintiff on 16 th July 2003. [22] Although the amended statement of claim complains of “an aggravation of a pre- existing degenerative condition of the neck”, in light of the medical reports, the Plaintiff is limited to the shoulder injury, for purposes of assessment of damages. At the highest, she suffers a 5% whole person impairment. In respect of general damages, Mr Myers, appearing for her, placed reliance on the award of $28,000 general damages for a 6% impairment of bodily function in Kenny v Eyears [2003] QSC 439. Mrs Kenny was only 48 at trial. A pre-existing condition was likely to have rendered her disabled to that extent after not too many years. The Judge’s assessment included an allowance for “the claim for psychiatric injury” (paragraph [46]). I would assess general damages in the sum of $20,000 which seems relatively generous, but, given that it covers damages for pain, suffering and loss of amenities, it is intended to cover compensation for the limitations the Plaintiff is now subject to as noted by Dr Curtis. It seems that she is yet to make adjustments of the kind that Dr Dickinson correctly said injured persons living alone make (such as hanging clothes out to dry on lower structures than a high line), rather than call on assistance -- 19 of 38 -- 20 from other members of their households. Interest should be allowed on half of the general damages for six years in the amount of $1,200. [23] Special damages include $30 for the sling, which was uncontentious, and $250 (admitted) for pharmaceuticals (Panedine and Panamax); $100 interest is allowed. There is a claim for liniment, which the Plaintiff says she uses in copious qualities “practically all the time” for her shoulder. I do not accept her evidence that for the six years since the accident, the price has inevitably been $18 per tub, the amount indicated in the single receipt she produced. The calculated claim (see Exhibit 13) was $3,924. I think it is reasonable to restrict the Plaintiff to her pleaded claims of $1,423 for the three years prior to institution of the claim, and $9 per week thereafter which produces nearly enough an identical sum. The Plaintiff needed taxis to attend appointments, particularly for physiotherapy, until she was able to drive herself, which happened after February 2000. Although the evidence is disturbingly vague, I would have allowed $970 for transport costs as claimed in Exhibit 13, on which, in the circumstances, I would not allow interest.∗ The plaintiff has no records at all. She receives an indulgence insofar as the claim for the later period is allowed for costs of the Plaintiff driving herself, rather than (as pleaded) for taxis. I am not prepared to allow interest on the liniment claim, either, given the lack of documentation about it, and the consequent uncertainty as to the proper quantum. The amounts awarded are very much broad brush assessments. [24] The next special damage claim in Exhibit 13 is for hairdressing services: “From June 1999 to approximately June 2002, a period of 150 weeks, she attended at the hairdresser once a week to have her hair washed and blow-dried at a cost of $20 per ∗ This is subject to reduction of the taxi component by three round trips @ $50 consistently with the observation in [27]. -- 20 of 38 -- 21 visit. The Plaintiff claims 150 visits at $20 per visit, which is a total of $3,000.” The amended statement of claim seeks $10 per week on the basis of a fortnightly visit thereafter. At page 115 of the transcript, Mrs De Candia agreed she could wash her hair quite capably now and, in fact, could do that by the beginning of 2000, although she was not able to blow dry or put curlers in at that stage. She agreed she had to go to the hairdressers every four or five weeks to have her hair cut, which I would take as a description of her lifetime habit. She agreed at 116 that she did not need the service of blow drying. She accepted that the hairdressing was something to make her “feel a bit better”. She has now located (the time was not specified) a hairdresser who charges only $10. A search for decided cases about hairdressing needs of plaintiffs whose limitations are no more than moderate and who, if left to rely on themselves, “can get by very well” (to quote Dr Dickinson at 134) led to Hendrie v Rusli [2000] WASCA 249; BC200005423. The Full Court said: “[38] Finally, it will seen that there is a complaint in ground 5 that his Honour failed to allow the claim for future hairdressing costs. The claim was based on two visits to the hairdresser per week at a cost of $15 each, a cost which the trial Judge said was unsupported by the evidence. His Honour noted that the appellant’s evidence suggested that she could no longer wash and dry her hair daily as she was used to doing, but his Honour concluded that she could indeed do her own hairdressing, although with difficulty. In my opinion, there was evidence to support that conclusion. [39] In the result I think that assistance with hairdressing is the sort of personal domestic service which would be included in the award for gratuitous services which I have already proposed. I too would not make any additional award in relation to hairdressing costs.” [25] I agree with that approach, and would add that the allowance for loss of amenities also recognises the Plaintiff’s limitations in this regard. [26] The final component of the claim for special damages appears from Exhibit 7, a communication from the Department of Veterans’ Affairs of the Australian -- 21 of 38 -- 22 Government to the Plaintiff’s solicitors apparently transmitted by facsimile at 3.35pm the day before trial. The letter purported to enclose a list of expenses recoverable by the Department under s.93 of the Veterans’ Entitlements Act 1986 along with a Notice under subsection (2) rendering the Plaintiff liable to reimburse the Department “for the cost of any accident-related treatment received at Departmental expense.” The list headed “Cost Statement” is as follows (subject to some repetitious items being summarised): “Greenslopes Private Hospital – Greenslopes 8-Jun-99 Accommodation & Misc Fees 3,446.00 $3,446.00 Dr S Lane – Specialist - Sunnybank Item 104 8-Jun-99 Consultation 64.85 47423 8-Jun-99 Fracture Treatment 164.05 105 14-Jul-99 Consultation 32.50 105 25-Aug-99 Consultation 32.50 105 11-Jan-00 Consultation 32.50 $326.40 Dr N Daunt – Radiologist - Greenslopes Item 57509 8-Jun-99 X-ray – Hand/Wrist/Elbow 42.50 57703 21-Mar-02 X-ray – Shoulder/Scapula 45.90 $88.40 Dr P Baxter – Medical Practitioner - Greenslopes Item 44 8-Jun-99 Consultation $57.80 $57.80 Dr A Porter – Radiologist - Kenmore Item 57703 15-Jun-99 X-ray – Shoulder/Scapula 57.70 $57.70 Dr D Gilpin – Specialist - Brisbane Item 104 15-Jun-99 Consultation 64.85 105 7-Jul-99 Consultation 32.50 105 5-Aug-99 Consultation 32.50 105 7-Oct-99 Consultation 32.50 105 1-Mar-00 Consultation 33.00 $195.35 -- 22 of 38 -- 23 Miss J Birckel – Physiotherapist - Milton Item PH30 16-Jun-99 Treatment 47.50 [8 further treatments to 13-Jul-99 @ $31.65] $300.70 Dr G Cowderoy – Radiologist - Sumner Item 57703 6-Jul-99 X-ray – Shoulder/Scapula 57.70 $57.70 Dr J Evans – Radiologist - Beenleigh Item 57515 20-Jul-99 X-ray – Hand/Wrist/Elbow 57.70 $57.70 Dr S King – Radiologist – Spring Hill Item 57703 5-Aug-99 X-ray – Shoulder/Scapula 57.70 $57.70 Mr S Rieck – Physiotherapist – Loganholme Item PH10 15-Dec-99 Treatment 39.40 PH20 20-Dec-99 Treatment 31.65 PH20 24-Dec-99 Treatment 31.65 PH20 21-Jan-00 Treatment 32.10 $134.80 Mrs C Lion – Physiotherapist – South Brisbane Item PH13 7-Jan-02 Treatment 50.50 PH23 8-Jan-02 Treatment 42.35 PH23 9-Jan-02 Treatment 42.35 $135.20 Mrs D Hogg – Physiotherapist – Loganholme Item PH10 11-Mar-02 Treatment 41.35 [7 further treatments to 4-Apr-02 @ 33.20] $273.75 Miss B Davies – Physiotherapist – South Brisbane Item PH13 7-Jan-03 Treatment 51.75 PH23 8-Jan-03 Treatment 43.40 PH23 9-Jan-03 Treatment 43.40 $138.55 Dr Z Boules – Anaesthetist – Meadowbrook Item 18256 15-Mar-04 Suprascapular Nerve Injection 51.95 [5 further injections to 2-Aug-04 @ 51.95] $311.70 -- 23 of 38 -- 24 Pharmaceutical Item 01746X 15-Jun-99 Paracetamol 4.28 01215Y 15-Jun-99 Panadeine 3.66 01215Y 29-Jun-99 Panadeine 3.66 01215Y 8-Oct-03 Panadeine 7.16 01215Y 15-Oct-03 Panadeine 7.16 01746X 22-Dec-03 Paracetamol 7.67 01746X 31-Mar-04 Paracetamol 3.87 01746X 24-Aug-04 Paracetamol 7.71 01746X 31-Aug-04 Paracetamol 7.71 01746X 26-Oct-04 Paracetamol 7.71 $60.59 $5,700.04 [27] Some appropriate observations are that the Exhibit 13 claim for 12 trips to Milton for physiotherapy seems inflated from the nine recorded in Exhibit 7, (the claim for 12 visits to Loganholme is confirmed), the injections administered by Dr Boules on the basis of Dr Curtis’ evidence at 83-84 cannot be related to the Plaintiff’s shoulder problem as opposed to her neck problem, so that the costs ought to be attributed equally, and the pharmaceuticals supplied in October – December 2003 would, on the face of things, be attributable to the Plaintiff’s fracturing her radius, when she fell, having tripped over the dogs’ bowl. She said she was in a plaster that came down over her hand for eight weeks, the medical evidence was that recovery from difficulties and use of the Plaintiff’s right hand could have gone on for three months after removal of the plaster. See p.81. The Plaintiff says she eventually recovered completely from the radius fracture. For five months or so, this incident would have generated a new need for Griffiths v Kerkemeyer type services, had there been someone to sue. [28] It appears that Exhibit 7 is a revised version of a document which the Department made available to the Plaintiff or her advisers at some earlier time, incorporating all costs which the Department had incurred on her behalf. The Plaintiff then went -- 24 of 38 -- 25 through it, making a judgment as to which items were appropriately claimed in the action. I have found there ought to be a couple of revisions, as appears above. The Defendant has never had any earlier version of the “Cost Statement”. It is a matter of speculation whether scrutiny of it would have revealed any basis for challenging the Plaintiff’s conclusions about what services the Defendant could fairly or reasonably be charged with. A glaring feature is that after 1 March 2000, when Dr Gilpin was seen, there is nothing linked with the incident on 8 June 1999 until 7 January 2002, nearly two years later. It is troubling that the Plaintiff could not recall undergoing physiotherapy at South Brisbane at any time. This is something of a curiosity, as there were successive visits over three days, something one would ordinarily expect a person to remember. It seems an odd coincidence that on the precise anniversaries of those three visits, there were further physiotherapy treatments at South Brisbane! It is with considerable misgivings that I accept these items. [29] Mr Kelly, counsel for the Defendant, objected to the court’s reception of Exhibit 7, the dominant component of which is the charge made by Greenslopes Private Hospital in respect of the Plaintiff’s admission after the accident. So far as appears, no claim along those lines had ever been made or foreshadowed. The original statement of claim had stated in para 19(e) that particulars of special damages “will be supplied”. An amended statement of claim filed 9 July 2002 stated in that paragraph that particulars of special damages and interest “are”: “Sling $30.00 Taxis for period 8 June 1999 – 31 July 1999 $500.00 Taxis for period 31 July 1999 – 31 March 2000 $640.00 -- 25 of 38 -- 26 Panadine (8 June 1999 – mid August 2000; calculated at a rate of approximately 8 tablets per day) $100.00 Liniment (31 July 1999 until June 2002; at approximately $9.75 per week) $1,423.00 Hair-dresser (31 July 1999 until June 2002; 1 per week at $20.00) $2,980.00 Physiotherapist (31 July 1999 Until June 2002; 30 visits) $1,200.00 $6,873.00” [30] Rule 548 is: “548 (1) Without limiting rule 547(3)(f), a plaintiff's statement of loss and damage must identify the following documents-- (a) hospital and medical reports; (b) hospital, medical and similar accounts; (c) documents about the refund of workers' compensation payments, social security benefits or similar payments; (d) if there is a claim for economic loss-- … (e) documents about the cost of meeting needs of the plaintiff alleged to have arisen or increased because of the plaintiff's injury; (f) documents about any additional expenses to which it is alleged the plaintiff has been or will be put because of the injury; (g) documents that are or contain a contemporaneous record, account or description of-- (i) the plaintiff's injury, disability, pain and suffering, loss of amenities or treatment; or (ii) the consequences of them; or (iii) the cost resulting from them. (2) If the defendant asks for a copy of a document identified in the plaintiff's statement of loss and damage, the plaintiff-- (a) must give the defendant a copy; and (b) may charge a reasonable amount for giving the copy. (3) If the plaintiff intends to rely at the trial on evidence of the plaintiff's injury, loss (including economic loss) or treatment (including future treatment) not in a report that, if it were in a report, would be required to be identified under subrule (1), the plaintiff must, -- 26 of 38 -- 27 before the request for trial date is filed, serve on the defendant the evidence in the form of a report, or a proof of the evidence. (4) At the trial, the plaintiff may call or tender evidence not identified in the plaintiff's statement of loss and damage or not given to the defendant under this part only if— (a) the evidence is called or tendered by consent; or (b) the evidence is called or tendered in cross- examination; or (c) the court for special reason gives leave.” [31] In respect of Exhibit 7, to a considerable extent at least, rule 548(3) has not been complied with. Mr Myers disputed that. I consider there has been a dreadful instance of the Defendant being ambushed here and that she has had no opportunity of the kind expected under our current practice to prepare for trial, consider offers to settle and the like, on the basis of pertinent information about the claim. Even if Exhibit 7 came very late, one would think that ordinary courtesies among litigants would have required that the Plaintiff provide some kind of preliminary information on the basis of what the Department originally provided. The Defendant’s interest in having full information was established in the steps leading up to Senior Judge Trafford-Walker’s making an order on 18 November 2002 that the Plaintiff provide copies of the documents set out in (f) of the Statement of Loss and Damage to the solicitors for the Defendant within seven days (and pay costs). The terms of (f) have not been placed before the court. It ought to be recorded that the Plaintiff was self- represented until about 3 September 2002, when a solicitor (not any longer the Plaintiff’s solicitor in this proceeding) signed a “notice of appointment of solicitor” which was filed the following day. The Plaintiff’s present solicitors filed notice that they were acting on 29 June 2004. The Claim and the Plaintiff’s original and amended Statements of Claim bespeak involvement of persons with or with access to some legal expertise. -- 27 of 38 -- 28 [32] Without suggesting that the Defendant ought to have anticipated them, the contents of Exhibit 7 are not particularly remarkable. I am expressing no view about the dollar amounts. I think that justice to the Plaintiff makes it appropriate that leave under rule 548(4)(c) be given, if such leave is necessary. About that, it seems unnecessary to make any ruling. Plainly, if matters so turn out that the indulgence the Plaintiff obtains plays a part in producing some prima facie entitlement to a costs order favourable to her and adverse to the Defendant, it might be a monstrous injustice to the Defendant if that went uncorrected. The matter may have to be considered in some detail. The Defendant was given notice of 30 visits to a physiotherapist, for example, although Exhibit 7 shows only 27, including the three in January 2003, which would be some of the so-called “future costs” for physiotherapy of $24 per week sought in the amended statement of claim. [33] Exhibit 7 leads to assessment of special damages for past treatment of $5,522.20 after reducing the Exhibit 7 total by the pharmaceuticals amount for late 2003 and one half of Dr Boules’ fees. No interest should be allowed, since it does not appear the Plaintiff has been out of pocket in this regard. [34] A further item of special damages claimed in Exhibit 13 not reflected, it appears, in any pleading or even Statement of Loss and Damage (unless it be one generated on the eve of the trial) was for car washing. Exhibit 13 states: “The Plaintiff gave evidence that from approximately August 1999 to the present, she has been required to take her vehicle to a carwash. The Plaintiff gave evidence that the average cost is $10 and she takes her car to be washed once a fortnight. The Plaintiff claims $5 per week since 1 August 1999 for car washing services, which is the sum of $1,557.50.” The commencement date ascribed is surprisingly early. The Plaintiff’s husband has his own vehicle; he has not been called on to wash the -- 28 of 38 -- 29 Plaintiff’s. There are no vouchers, dockets or receipts to bear out the asserted expenditure. A search for “car washing” comparables has not been particularly productive. In Rosewarne v Marshall [2004] QSC 283; BC200406648 Byrne J said at [42-43]: “[42] The plaintiff keeps fish for a hobby. When emptying the tanks, he carries a smaller water bucket than was possible previously. He also enlists his father’s help with the heavy jobs involved in caring for the fish. Before the accident, the plaintiff used to wash his car once a week. He would have difficulty doing something like that now. In future, he will have a need for other assistance because of his injury. The plaintiff lives with his parents. When he can afford to do so, he plans to get a house of his own. Depending on the state of the yard, he may well need help in such tasks as mowing the lawn. Mr Hoey estimates that, living independently, the plaintiff will require up to two hours of assistance monthly. [43] The past Griffiths v Kerkemeyer claim is allowed at $1,350 (45 minutes a week for 120 weeks at the agreed rate of $15 per hour), plus interest (at 5% pa.) of $150. For the future, the sum claimed - $11,500 – is allowed, which assumes a need of 45 minutes a week for two years, and thereafter one hour a week for 42 years, with the sum yielded then discounted by 15% for contingencies, and rounded off.” [35] In Vadalma v Orford Pty Ltd (No. 76 of 1998, 22 September 1999) BC9906139, Fryberg J said at [22]: “I do not allow the Plaintiff’s claim for carwashes, as in my view that is subsumed in the award for loss of amenities.” [36] In Mr Myers’ authority of Kenny, there was a claim of $588.10 for “car cleaning from July 2002 – May 2003”, dealt with in association with claims for medical expenses of $798, travelling expenses (agreed at $200), ironing ($35), therapeutic massages ($799.50) and pharmaceutical expenses (which can be identified by process of subtraction as claimed in the sum of $2,021.75). Philippides J said: “[83] Taking a broad brush approach, I allow $1,500 which includes the claim for medical expenses of $798 and the travelling expenses agreed at $200 and a component for interest.” -- 29 of 38 -- 30 [37] Claims for car washing appear to have attracted only modest support from the judges. The Plaintiff’s age is such that she may not have the opportunity to run a vehicle for many years into the future. If inclined to excuse the Plaintiff from the gross unfairness of springing this claim on the Defendant at the last moment, I would respectfully adopt Fryberg J’s approach. The evidence appears to be that, albeit with difficulty, the Plaintiff could clean her vehicle herself, if so minded. A case has not really been made out as to why the Defendant can reasonably be called on the cover the expenses the Plaintiff chooses to incur in this regard. [38] I should say in relation to special damages, that the above conclusions ought to be treated as provisional only. I may have succumbed to misunderstandings, for example as to the date of the fractured radius, or the Plaintiff’s having obtained services of physiotherapists above and beyond those in Exhibit 7. The parties are invited to make further submissions about special damages, indeed generally, before final orders are made disposing of the proceeding. [39] I would not be inclined to permit the Plaintiff to amend her pleading to include a claim for car washing. [40] As pleaded on 9 July 2002, the Plaintiffs Griffiths v Kerkemeyer claim to the end of June 2002 was: • $5,880 (plus 12% interest) for 49 days at 10 hours per day to 31 July 1999. • $32,928 for the thirteen months to the end of August 2000 (7 hours per day) with interest at 12% per annum from the end of August 2000, 6% per annum prior thereto. -- 30 of 38 -- 31 • For the 22 months following to the end of June 2002, $15,960 (two hours per day) with interest at 6%. At that stage, the future claim was “about $67,000” being based on two hours per day for ten years. The rate applied in each instance was $12 per hour. [41] Most would account the foregoing an extravagant claim. It far outstrips the $75,000 (sic) claim for general damages. By the stage of addresses, Mr Myers had (by Exhibit 12) reduced the claim for the initial period to six hours per day. Thereafter, until the end of October 1999 the daily claim was five hours and ten minutes, reducing to “1.5 – 2 hours (say 1.5 hours)” until the end of January 2000, thereafter (and continuing) 1 hour per day. The carer from 11 June 1999, when the Plaintiff discharged herself from hospital, until a date at the end of July 1999 which was never clearly identified, was the Plaintiff’s sister, a trained nurse. That lady did not give evidence, not did the Plaintiff’s husband, Mr Connolly, who was the care provider thereafter. No explanation was given for their failure to give evidence. I think Mr Kelly is correct, that the court should proceed on the basis that their evidence would not have assisted the Plaintiff’s case. [42] A complication in respect of the first period, where services were provided at the care provider’s residence, is that not only did the Plaintiff move in, but Mr Connolly did as well, for his own convalescence. The care provider was attending to her own needs, as well as the Plaintiff’s husband’s, in the preparation of breakfast, lunch, dinner, and morning and afternoon tea and the associated clearing up. Tasks such as laundry were performed for the entire household. (The Defendant, meanwhile, was caring for the Plaintiff’s dog.) Times claimed in Exhibit 12 for the carer’s activities strike me as grossly inflated. While the Plaintiff would have been extremely limited on account of her pain in the early stages, she conceded that she would have been -- 31 of 38 -- 32 capable of getting herself a cup of tea. She could do a certain amount of showering but she would have needed some help, and certainly would have in drying herself properly and dressing. She would have needed assistance in getting ready for bed. In the early stages, she would have needed help with brushing her hair and “cleaning (false) teeth”. She was taken to task by Mr Kelly for not employing tablet dentifrices. Nothing appears to be claimed in respect of this task or hair care, brushing in particular, after July 1999. The Plaintiff said that no services were provided to her during the night, when she was able to manage for herself. [43] Doing the best I can, for the six weeks for which the Plaintiff said and confirmed she stayed with her sister (page 22, line 36, page 24) I would allow for personal services of three hours per day reducing to one hour, for an average of two hours, which produces an entitlement of $1,008 (84 hours at the agreed rate of $12 per hour). Interest on that sum is allowed at $121. For the ensuing six months, I would assess the Plaintiff’s need for Griffiths v Kerkemeyer services as one hour per day, reducing to half an hour per day, for an average of three-quarters of an hour per day. This produces an entitlement of some $1,655, which would attract interest of $192. Thereafter, until trial (5.5 years) I would allow 1.5 hours per week, reducing to one hour. For this period, the agreed rate is $15 per hour. The total is $5,370, on which interest at 2% for 5.5 years would be $591. Total Griffiths v Kerkemeyer damages are $8,033, and total interest (at 2%) would be $804. I would invite submissions from the parties regarding interest. [44] Mr Myers was invited to provide the court with submissions regarding the continued relevance (or otherwise) of observations of Kirby J relatively early in the saga of Griffiths v Kerkemeyer jurisprudence which attracted the concurrence of Gallop and Morling JJ. See Hodges v Frost (1984) 53 ALR 373, at 380ff: -- 32 of 38 -- 33 “Attempted gloss Since the decision in Griffiths v. Kerkemeyer, attempts have been made to refine and clarify the principle which the case enunciated. In the infinite variety of factual circumstances, it is not a simple task to discern clear guiding rules from the judgments of appeal courts which have had to reflect upon the operation of the Griffiths v. Kerkemeyer decision in awarding compensation in respect of gratuitously offered services. Clearly, it is not correct to approach compensation to a victim of injury by adding to all other rights to compensation the new factor comprising money damages calculated by reference to nothing more than commercial rates for household assistance. Great care must be taken in the application of the Griffiths v. Kerkemeyer principle. It is convenient to collect a number of rules suggested by the authorities: (1) The services must be reasonably necessary (Gibbs J, 168). That is, they must go beyond the mere arrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment. (2) The services must be such that, but for the gratuitous and benevolent activities, it would have been necessary to secure assistance at a cost. Obviously, this will be a matter of judgment and degree to be determined upon the facts of each case. (Griffiths v. Kerkemeyer, ibid, Gibbs J, 168). (3) Where gratuitous services have been given, it must be considered whether they should be discounted so that they do not amount to a windfall for the wrongdoer. The plaintiff is not relieved from the general obligation to mitigate loss and to avoid unnecessary costs and extravagance. In some cases of minor residual injuries, sensible rearrangements in the home will be reasonably expected and will relieve the wrongdoer from liability. In Griffiths v. Kerkemeyer Stephen J (ibid, 175) suggested that the defendant would have the task of 'persuading the court' that the charitable subvention of services should be debited against the plaintiff to reduce or extinguish this otherwise established entitlement to damages. He said that this task would be a 'difficult one'. The notion that the defendant bears an onus, whether in a strict legal sense or an evidentiary onus, was suggested by Samuels JA in Kovac v. Kovac & Anor (1982) 1 NSWLR 656,669. (4) The calculation of compensation with reference to charges made for the supply of services on a commercial basis may not always be appropriate. The plaintiff must mitigate his damage (see Gibbs J, Griffiths v. Kerkemeyer, ibid, 164). Services provided by relatives and friends may not be exactly the same as those provided by commercial agencies. The latter will also necessarily have an element of profit in their charges. On the other hand, the former may provide services in a more cost-effective, intensive and prolonged -- 33 of 38 -- 34 manner, thereby reducing the pain, suffering and general damages of the accident victim. (5) The compensation awarded, though referable to the activities of others, is not strictly compensation for them. It must be for the need to look after the plaintiff himself, not the need to look after others. This point was made by Mahoney JA in Burnicle v. Cutelli (1982) 2 NSWLR 26, 37. In that case, the majority (Reynolds and Mahoney JA) disallowed the inclusion in the damages of amounts in respect of the plaintiff's need to look to her daughter to satisfy duties of the plaintiff's husband, son and other daughter, formerly performed by her but after the accident performed by the daughter. Such an entitlement was said to be an unacceptable extension of the principle in Griffiths v. Kerkemeyer. (6) Any award that is made is subject to the over-riding requirement that the component attributable to Griffiths v. Kerkemeyer will be scrutinised against the test that the total verdict must be reasonably proportionate to the magnitude of the loss suffered by the plaintiff. This requires allowance to be made for the ordinary vicissitudes of life and the inevitable uncertainty of calculating damages which have a component referable to the future. But it also requires that regard should be had to the over-riding principle of reasonableness governing assessment of damages at large. See Samuels JA in Kovac v. Kovac, ibid, 669. (7) It now seems clear that interest is not payable on the component of the verdict calculated under this head of damages. Glass JA has explained this rule on the ground that the plaintiff, not being out of pocket, cannot claim interest any more than he could claim such interest on unpaid medical accounts. See Glass JA in Burnicle v Cutelli (1982) 2 NSWLR 26, 30 applying Settree v. Roberts (1982) 1 NSWLR 649. Subsection 53A(1) of the Australian Capital Territory Supreme Court Act 1933 as amended by s 17 of the Statute Law (Miscellaneous Amendments) Act No 176 of 1981 provides for the payment of interest to be included in a sum for which judgment is given in the Supreme Court of the Australian Capital Territory. Subsection 53A(2) provides that the amendment made by subsection 53A(1) does not apply to proceedings initiated before the commencement of the section. The actions giving rise to this appeal were instituted by writs of summons issued on 4 June 1981. Accordingly, apart from the authorities on the payment of interest on the component of the verdict attributable to gratuitous services, no interest is payable in the present matters by reasons of statute. No interest was ordered to be paid. (8) The distinction has been drawn between gratuitous and benevolent services offered by relatives and friends (in respect of which compensation may be recovered) and such services offered free of charge by the State (where it may not). See Gibbs J, Griffiths v. Kerkemeyer,. ibid, 165, 169. Although such services offered by the State may equally evidence a loss of the capacity for which -- 34 of 38 -- 35 compensation is essentially paid, a distinction has been drawn on 'strong grounds of policy' between services offered by the State to everyone and those that result from sacrifices made by relatives and friends. Only the latter are compensable under the Griffiths v. Kerkemeyer rule.” [45] Some of the eight propositions have been overtaken by developments in the cases. For example, interest is now awarded: see Brown v Hale [1996] 1 QR 234, where a rate of 2% was indicated. Recourse to commercial charge-out rates for services is now the standard approach, although there will doubtless be exceptional cases. It is difficult to see any justification for applying commercial rates to the number of hours a less efficient family provider might devote to a caring task. In my view, what Kirby J wrote at (1) and (2) continues to be correct, likewise what was said regarding a plaintiff’s obligation to mitigate and proportionality. [46] Dr Dickinson in cross-examination made comments about what level of assistance might be “realistic” or “reasonable”. In re-examination, a pertinent distinction was drawn between services which might be useful or helpful and those which are “necessary,” which are the ones attracting compensation. They would include help with dressing, cutting up food, work above shoulder or head level, etc, but not those luxuries like morning and afternoon tea, which the Plaintiff could have provided for herself. The Judge in Kenny, considering a statutory requirement of necessity, allowed a gratuitous services claim to the extent of half, distinguishing between what was reasonable and what was necessary, to an extent. “Some allowance ought to be made in recognition of the fact that even after modifying her behaviour, some tasks cannot be performed because they are too painful” ([77]). (Interest was allowed there at 3%, apparently by reference to the Motor Accident Insurance Act 1994. No submissions were received about interest on past Griffiths v Kerkemeyer damages. Rates applied include 2% (Brown v Hale, Powell v Queensland [2001] -- 35 of 38 -- 36 QSC 008 at [45]), 2.7% (Gryss v State of Queensland [2004] QDC 510 at [41]), 2.8% (Walker v Durham [2003] QCA 531 at [3] describing the primary judge’s assessment), 4% (Grincelis v House [2000] 173 ALR 564 – “elements of approximation” are involved: [22]) and 5% (Fine v Geier [2003] QSC 073 at [81] and Boyce v Deem [2002] QSC 402, at [108]). It is not suggested that the foregoing would encompass all interest rates adopted. The parties are invited to make submissions if they wish to contend for a rate other than 2%. [47] For future Griffiths v Kerkemeyer services, one hour (at $15) per week for ten years (as claimed in the amended statement of claim) should be allowed, which is $6,193.50, using the 5% tables I would allow a further sum of $3,600 for “future liniment” and other medication. [48] Summarising, and subject to correction of errors that may have slipped in, damages have been assessed as follows: General damages for pain, suffering and loss of amenities $20,000.00 Interest on half $ 1,200.00 ( Sling 30.00 ( Admitted pharmaceuticals 250.00 Interest 100.00 Liniment 2,846.00 Taxis and self-driving expenses 820.00 Treatment Costs (Exhibit 7) 5,522.20 Past Griffiths v. Kerkemeyer 5,370.00 Interest 804.00 Future Griffiths v. Kerkemeyer 6,193.50 Further liniments/medication 3,600.00 Total $46,735.70 [49] The above should be reduced by 50% to take account of the Plaintiff’s contributory negligence, leading to an order for judgment against the defendant for $23,367.85. It would appear that (even without such reduction) the Plaintiff’s costs should be assessed on the top Magistrate’s Court scale. Orders will not be made until the -- 36 of 38 -- 37 parties have had an opportunity to present further submissions after consideration of these reasons. [50] After preparation of the foregoing, there arrived Mr Myers’ supplementary submissions for the Plaintiff, as invited by the Court. Those submissions and attachments have been considered. They included a marked up copy of “Commentary” from the online Australian Torts Reporter (CCH) reflecting relevant principles governing the award of Griffiths v Kerkemeyer damages following Van Gervan v Fenton (1992) 175 CLR 327, highlighting the principles submitted to be applicable. As it happens, except as noted, Hodges v Frost seems not to require revision; indeed in at least one respect it has triumphed over decisions of appellate divisions of three Supreme Courts. I accept the propositions Mr Myers highlighted. As to the cases of which he supplied copies, Hendrie v Rustli had already been located and is referred to above. McWhaters v Bletich (Supreme Court of WA, appeal FUL 65 of 1998, 3 December 1998, library no. 990184A upheld on appeal as to a global assessment of past and future “gratuitous care” of $25,000, likewise as to an award of $16,720 for loss of amenities, which appears to have been based on application of 8% (presumably representing level of disability) to a statutory maximum amount, which was about $200,000 at the time. The relevant principles for the former assessment are stated in an unexceptional way. The plaintiff was significantly younger than the present Plaintiff. As the appeal court noted, the trial judge “found as a fact that prior to the trial the Plaintiff’s incapacity was to the extent that she was not able to provide any household services.” That was treated as being literally the case for the 150 weeks elapsing between the first provision of care and the trial. That plaintiff’s situation was much worse than Ms De Candia’s: “she was in the position of not being able to provide any countervailing services.” -- 37 of 38 -- 38 [51] Next referred to by Mr Myers to “demonstrate a value that is generally to be attached to the provision of services” was another Full Court decision from Western Australia, Biddulph v Lenegan, appeal FUL 131 of 1997, BC9900509. This was a sad case of a dependency claim by a child both of whose parents died in consequence of a motor accident. Necessary services for the bereaved baby were valued at $625 per week in preschool years, $500 per week until age 6, $400 per week until age 17 and $200 per week thereafter until the period of dependency ended. It is notorious that parenting and other domestic and caring services are undervalued; our economy would change considerably were that to be rectified. I have some difficulty in appreciating the present relevance of this decision. [52] The final enclosure was Curry v Aughey [2001] 1 QR 128 in which the Chief Justice resolved an issue claimed by a defendant to arise under r548(4) in much the same way as that indicated above. There was no suggestion that the plaintiff had deliberately refrained from generating a document for the purpose of avoiding some obligation under the UCPR (see [16]); “the point was sufficiently identified in the statement of loss and damage, and the plaintiff was now seeking merely to make good the point by oral evidence.” ([18]). [53] No reason appears for changing the views expressed above, the conclusions in paragraph [49] in particular. -- 38 of 38 --