Bamford v Haggett [2004] QSC 453

SUPREME COURT OF QUEENSLAND CITATION: Bamford v Haggett [2004] QSC 453 PARTIES: PETER JOHN BAMFORD (plaintiff) v ROBERT CHARLES HAGGETT (defendant) FILE NO/S: SC No 4647 of 2004 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 14 December 2004 DELIVERED AT: Brisbane HEARING DATE: 11,12 and 13 October 2004 JUDGE: White J ORDER: Judgment for the plaintiff against the defendant in the sum of $254,050.85 CATCHWORDS: TORTS – NEGLIGENCE – DUTY OF CARE – REASONABLE FORSEEABILITY OF DAMAGE – GENERALLY – where the plaintiff sustained personal injury when he fell from a ladder whilst helping the defendant to paint a veranda at the defendant’s - whether a duty of care arose between the plaintiff and the defendant – defendant devising a system of work – whether the defendant owed a duty to take reasonable care to avoid foreseeable risk of injury to the plaintiff TORTS – NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether the plaintiff should have checked the position of the ladder before climbing the ladder TORTS – NEGLIGENCE – DAMAGE – GENERAL – whether the plaintiff suffers from epilepsy brought about by his fall from the veranda - whether the plaintiff’s continuing symptoms are attributable only to a somatoform (conversion) disorder Crooks v Fitzgerald [2002] QCA 307, cited Jones v Bartlett (2000) 205 CLR 166, cited Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313, considered -- 1 of 19 -- 2 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, applied COUNSEL: R A I Myers for the plaintiff G D O’Sullivan with S B Whiten for the defendant SOLICITORS: Shine Roche McGowan for the plaintiff Stewarts Lawyers for the defendant [1] The plaintiff sustained personal injury when he fell from a ladder on Easter Saturday, 30 March 2002 whilst helping his friend, the defendant, to paint a veranda at his home at Lowood. [2] Both liability and quantum are in issue. Liability will largely be decided by the preference of one account of what occurred over the other. This will also dictate whether there should be any apportionment. There are two principle questions for resolution about quantum, namely whether the plaintiff has epilepsy as a consequence of any head injury sustained in the fall or whether his continuing symptoms are attributable only to a somatoform (conversion) disorder. The second concerns the plaintiff’s likely work history had he not been injured. Background [3] The plaintiff is a 37-year-old married man with two children aged 14 and 16 years. He was unemployed at the time of the fall and his most recent employment as at February/March 2002 was as a roofer. He had known the defendant for about 20 years after the defendant had moved into the house next door to that of the plaintiff and his parents. The plaintiff regarded the defendant as a good friend. The men kept in touch and, in due course, they both married. After the defendant moved to Lowood in about 1999 the two families saw more of each other than in the past. The plaintiff and his family would visit the defendant and his family quite regularly alone or with other friends. [4] According to the plaintiff he had done some jobs at the house for the defendant whom he said offered payment which he always refused. He said that he had been able to get “a good price” for the defendant for the materials to be used on the extension through his roofing job. The defendant denied much assistance from the plaintiff in the past and offers of payment. He rather grudgingly conceded the assistance with the price. The close friendship between the two men and their families has not survived this litigation. [5] The plaintiff had decided just before Easter 2002 to take up an offer of roofing work in Sydney so he and his wife contacted the defendant to visit Lowood on Good Friday. He had put a new engine in his car and wanted to give it a run before driving to Sydney. The plaintiff and his family stayed overnight although they had not initially planned to do so. Saturday 30 March [6] The defendant was building a veranda onto the back of his house which was highset on a sloping block (the house plans are exhibit 15 but do not include this extension). The weather, which had been rainy the previous day, had cleared and the defendant decided to paint the new, partially constructed, veranda. The house already had two -- 2 of 19 -- 3 narrow side verandas. The new work comprised the posts, the floor joists running vertically out from the house and adjoining the two side verandas and the roof bearers for the new veranda. The floor had not been laid. The defendant had already set up a system for working on the new veranda. He had placed an old internal door lengthways across the floor joists and placed a ladder on it. The joists were approximately 600mm apart. The door was a standard internal timber door and has been assumed to be 2000mm x 9000mm. It, accordingly, straddled three joists. The defendant had borrowed the ladder from a neighbour. It was a 6 ft aluminium A-frame ladder with metal horizontal arms holding it open. It is said to be the ladder depicted in exhibit 7 which formed part of the loss adjuster’s report. [7] The defendant said the plaintiff was very keen to help with the painting once he had indicated that that was what he was going to do; the plaintiff said the defendant asked if he would give him a hand and offered to pay which the defendant denies. The plaintiff said he was not anxious to stay on as he was planning his departure for Sydney in the near future but agreed to help. Nothing turns on who is correct except for overall issues of credibility. Possibly perceptions of what the other wanted and social nuances may have led each man to the position adopted. Throughout his evidence the defendant seemed concerned to convey a more distant relationship (before the fall) with the plaintiff than the plaintiff suggested in his evidence. I am inclined to accept that the friendship was more as described by the plaintiff and the defendant’s anxieties about the litigation have cause him to take this position. In cross-examination the defendant conceded that he was carrying out the work on his house without having obtained council approval. He did not have insurance to cover paid domestic workers. This may further explain his attitude. [8] The men went to the hardware store and bought another paintbrush and returned. The plaintiff said that he suggested they put down the veranda floorboards first and the painting would thereby be done more easily and safely but the defendant said he did not want to risk paint dropping onto the floor. Neither did he want to use plastic or other drop sheets to protect the floor from paint. He said at trial that he did not have any drop sheets. The defendant denies this conversation took place. He thought that he may not then have taken delivery of the floor timber but was uncertain. He did agree that he wanted the painting done before the floor was laid because he was planning to polish the boards. [9] The defendant had a well known fear of heights. The plaintiff offered to paint the top of the roof bearers reaching down the sides as far as he could while the defendant painted from the ladder underneath. The defendant said that the plaintiff, over his protests, was wearing scuffs or thongs to carry out the work. He said that the plaintiff had dismissed his concerns saying that he was a roofer and he would be fine. The plaintiff could not recall what footwear he was wearing that day. He thought it unlikely he would articulate such a sentiment. His wife said that he did not wear thongs because he did not like them and customarily wore sandals with a side strap. There is no suggestion in the pleadings or in the evidence that the footwear of the plaintiff caused or contributed to his fall. If it is necessary to do so, I find that he was not wearing thongs. [10] The plaintiff climbed the ladder, already positioned by the defendant on the door, onto the roof bearers and painted the top slats and as much of the sides as he could reach to make it easier for the defendant who was painting the underneath sides as far as he could reach using the ladder. The plaintiff carried out this work by -- 3 of 19 -- 4 crouching down and moving across the bearers. The men were using a quick-drying acrylic paint. [11] According to the plaintiff the defendant started in the right-hand far corner looking out from the veranda and, as he finished a portion the defendant would slide the door forward and do the next portion of the underside of the beams. The defendant proceeded in this fashion out to the edge and then moved back in towards the house again. The plaintiff said that the defendant was slower than he was because he had injured hands and was not able to operate the paintbrush as dextrously. [12] The men had been progressing in this fashion about 3 hours with breaks for drinks produced by Mrs Haggett. When the plaintiff finished the whole of the top of the bearers he came down the ladder and started working around the edges. By this stage the defendant as about halfway along the veranda. The plaintiff walked around the edge of the veranda painting the posts which held up the roof bearers and the outside fascia board and the main beam. He then jumped off the veranda to the ground and painted the next level down which was the outside fascia board. [13] The plaintiff said that Mrs Haggett then called out for the defendant to start the barbeque for lunch and, since the plaintiff had just about finished what he was doing, the defendant climbed down the ladder and asked him to finish the corner underneath on the veranda and that he would go to light the barbeque. Whether there was to be a barbeque lunch that day (there was no lunch actually taken as the plaintiff’s fall and visit to the doctor and admission to hospital intervened) assumed considerable importance at the trial. The defendant was adamant they were not having a barbeque lunch that day having been all “barbequed out” the previous day. Mrs Haggett said they were to have salad rolls for lunch. Mrs Bamford said they were having salad rolls or a barbeque. In fact it seems that only one barbeque had been held the previous day, a late lunch/early dinner, but whether the defendant was called to light the barbeque or went away to do something else I accept that he asked the plaintiff to finish off the top corner of the veranda. [14] The plaintiff climbed back onto the veranda, walked across the joists and stepped onto the ladder as it had been left by the defendant and finished the underneath paintwork. He then started to climb down the ladder talking to the defendant as he did so taking one, possibly two, steps and was on the second or third step from the bottom when the ladder tilted and the plaintiff fell backwards through the air hitting another ladder on the ground on the way. He fell about two to two and a half metres. He landed with his face on the ground, his arms behind him, his head bent back and his leg twisted in the ladder, a spike from which had penetrated the front of his shin. He was covered in paint. He felt very embarrassed and tried to get up but felt extraordinary pain. He heard the defendant shout out as he fell. He could not say if he lost consciousness but from what he told others at the time, probably not. [15] The plaintiff said that at no stage had he moved the door or the ladder. He said initially he had ascended the ladder to get on the bearers and had descended when he finished the job. He then climbed up the ladder to finish painting the underside in the corner and did not notice anything insecure or dangerous about its positioning on the door and had not moved it or the door at any time. -- 4 of 19 -- 5 [16] The defendant’s account was rather different. He said he had borrowed three ladders from his neighbour – two 6 ft ladders and another shorter ladder. He said he used only the shorter ladder to paint the underside of the bearers whilst the plaintiff used the 6 ft ladder which was positioned on the door across the joists. The other 6 ft ladder was on the ground. That there was a shorter ladder being used by the defendant to carry out his work and not the 6 ft ladder on the door was not put to the plaintiff in extensive cross-examination. Neither was it mentioned to the loss adjustor although the defendant explained that he was asked only about the ladder from which the plaintiff fell. The defendant said that the plaintiff moved the 6 ft ladder on the door frequently. He described the plaintiff’s method of painting in evidence in chief in the following passage “You saw him move the ladder and the door ---? --- Yes --- both before and after you had used it? ---Yes Why was he moving it, can you explain that to her Honour? --- If you appreciate, when you’re finished painting a certain section you’re going to move along so you have to move everything along to go with it. Okay. He was painting different sections --- ? --- Yes. --- that required him to move. All right.” T 231 Mr O’Sullivan had asked the plaintiff whether he had seen the plaintiff move the ladder and the door both before and after “you had used it”. This is different from the defendant’s evidence in cross-examination when he suggests that he used only the short ladder and not the 6’ foot ladder. [17] In cross-examination Mr Myers asked the defendant “And certainly from the time he [the plaintiff] first went up until the time he descended there was – he didn’t descend at any time did he? --- Yes. What does that mean? --- Yes, he did descend. When was that? --- Well he would have come down for a drink at least.” T 245 The defendant said he could remember the plaintiff coming down the ladder on one occasion but could not say when. This was quite a different recollection from his starting point of seeing the plaintiff moving the door and ladder constantly and reflected in his statement to the loss adjuster dated 2 August 2002 (exhibit 16) “At the time of the accident Peter had been painting for approximately 3 hours. During the three hours Peter was constantly travelling up and down the ladder, moving the ladder and walking on top of the joists he was painting.” The defendant was firm that the plaintiff had moved the ladder and door from the end of the veranda where he ascended to commence the work to the position where it was when he descended but he could not remember when, why or, indeed, how. -- 5 of 19 -- 6 [18] The defendant described to the loss adjustor how the accident occurred as he said the plaintiff had told him. “Peter had positioned the door on the joists and when he did so had left a large overhang. It was this overhang that he stepped onto after he had declined from the ladder. When Peter stepped onto the overhang the door flipped up and he subsequently fell to the ground. I did not know exactly where Peter had positioned the door and I was not aware that it was overhanging.” Exhibit 16. The plaintiff denied that he gave this account to the defendant. The defendant said that at the time of the plaintiff’s fall he was downstairs on the ground about 6m away painting the lower deck fascia. [19] The plaintiff’s wife, Mrs Jean-Anne Bamford, was unable to assist about the way the work was carried out. She said she and the defendant’s wife, Mrs Lisa Haggett, spent the morning chatting and having cups of tea on the side veranda near the kitchen and when Mrs Haggett went into the kitchen to do things they could still talk. They could not see the men working. Mrs Haggett, when asked what she could remember seeing of the plaintiff, answered “He was up on the ladder, up and down the ladder doing the tops.” She could only recall one ladder. When pressed she said she could remember the plaintiff being on the ladder on the veranda just before his fall when she might have put her head out to ask what was wanted for lunch. My impression was that Mrs Haggett had little recollection of where the men were positioned and it was likely that she saw the plaintiff only once on the ladder when he was finishing the work in the corner of the veranda. [20] The defendant seeks to make something of admissions allegedly made by the plaintiff. The plaintiff agreed that he said to the defendant and his wife when they visited him in hospital following the fall that the defendant should not blame himself – that it was an accident. Mrs Haggett said that the plaintiff said that “It was his fault and left it at that”. In cross-examination Mrs Haggett said that when he had fallen he had said “Don’t panic, don’t worry, it was my fault” but she could not recall much of what was said that day. [21] Something was made of a conversation on 7 May 2002 as in some way assisting on the question of credit. The plaintiff telephoned the defendant and told him that he was considering “Putting in a claim” but that he did not wish to sacrifice their friendship and that if bringing a claim would do so he would not. The defendant said that he told the plaintiff that he “didn’t like it” and rang his insurer the next day. The defendant made a diary record of his conversation, he said at the time, and headed it, perhaps unusually in light of their long friendship, “P Bamford liability claim”. He denied that he told the plaintiff that the friendship was over, that it was too late and he also denied that he was very anxious about the claim because he was building the veranda extension without planning permission. It was put to the defendant that this was the occasion to express surprise to the plaintiff because he had already, on the defendant’s case, said that the accident was his fault and therefore would hardly be successful. The defendant agreed that he did not discuss -- 6 of 19 -- 7 this with the plaintiff. This conduct and the statements of fault attributed to the plaintiff add little to the conclusion about whose versions of events is accepted. [22] I prefer the evidence of the plaintiff about how the work was done by him. It made little sense for him to have been climbing up and down the ladder and repositioning it. His explanation of how he carried out the work by moving steadily across the roof bearers seems, eventually, to have been accepted by the defendant as the way in which the work was carried out. The evidence of the defendant shifted greatly from suggesting initially that the plaintiff moved the door and ladder regularly throughout the morning to saying that he remembered seeing him “at least once” coming down the ladder. I accept the plaintiff’s evidence that at no time did he set up the 6 ft ladder from which he eventually fell and that it was arranged as it was by the defendant when he climbed the ladder to paint in the corner prior to lunch. [23] Dr Justin Ludcke, an engineer with expertise in ergonomics, undertook an analysis of the mechanism of the tilt and subsequent fall of the ladder. His assumptions were based upon the account given to him by the plaintiff. Dr Ludcke’s analysis depended upon the leg of the ladder being outside the end joist as depicted in figures 1, 2 and 3 in his report which is part of exhibit 1. Dr Ludcke did not know exactly where the ladder was placed but its placement outside the end joist was critical to the instability of the door. Whether the ladder would tip or not was dependent upon the position of the load on the ladder. Dr Ludcke agreed in cross- examination with the proposition that the danger, so far as being on the ladder was concerned, related to where the ladder was positioned relative to the joist. [24] What needed to be understood was how it came about that the door tilted when the plaintiff descended and had not done so when the defendant descended or when the plaintiff had ascended, if it be accepted, as I have, that the door and ladder had not been moved. Dr Ludcke explained that whilst all of the force (including that of the person on it) runs through the feet of the ladder the higher up the person is positioned the proportion of the weight will be greater on the side of the ladder the person is not climbing than it is on the lower steps when a greater proportion of weight is on the side on which the person is standing. Accordingly, there is a greater risk of tipping over when on the lower steps, accepting the general positioning of the door and the ladder as depicted in Dr Ludcke’s figures 1, 2 and 3. [25] It was assumed that the plaintiff and defendant were of approximately similar weight and carrying a paint can and brush in one hand. The only variable which could explain the door tilting with the plaintiff would be a different manner of descending the ladder by each man. The plaintiff did not recall leaning backwards out from the ladder as he descended but he did describe the defendant as pressing his body in close to the ladder as he ascended and descended which was consistent with his fear of heights and his damaged hands. The defendant did not dispute this. The plaintiff denied that he simply lost his balance and fell which I accept. Dr Ludcke said that had that occurred the ladder only would have moved although the door might do so if the person landed on it in the course of his fall. [26] I accept Dr Ludcke’s opinion that unless the door overlapped the floor joist and unless the ladder was positioned on the door with its climbing side legs positioned outside the joist as depicted in figures 1, 2 and 3 of his report, the ladder would not have tilted. Although I accept the plaintiff’s evidence that he had no particular recollection of leaning out when he commenced his descent I conclude that he did -- 7 of 19 -- 8 so at least to a greater extent than he did ascending and to a greater extent than the defendant with his own method of using a ladder. Whatever the distance, it was sufficient to create a turning moment between the door and the joist and led to the plaintiff’s fall. The plaintiff had experience of working on roofs over an eight month period as a trainee roofer which, he said, did not involve much ladder work but he was quite familiar with using ladders. The defendant, it seems, told the plaintiff that he used ladders at his work teaching metal work as a corrections officer in prisons. [27] The risks associated with the system of work devised by the defendant were obvious to a practical person which both these men were. I accept that the plaintiff mentioned his preference for having the floorboards laid first. Dr Ludcke identified a number of ways in which the risk could be eliminated. They included installing the floorboards prior to painting and using drop sheets. The door could have been screwed to the joist by means of a cordless drill prior to placing the ladder on it. Dr Ludcke said the screws could easily be moved for relocation of the ladder. Clamping the door to the joists would be another method. Liability [28] Mr Myers submitted that the approach to the legal relationship between the plaintiff and the defendant may be likened to that of an independent contractor and entrepreneur referring to the observations of Mason J in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 31 “Although the obligation to provide a safe system of work has been regarded as one attaching to an employer, there is no reason why it should be so confined. If an entrepreneur engages independent contractors to do work which might as readily be done by employees in circumstances where there is a risk to them of injury arising from the nature of the work and where there is a need for him to give directions as to when and where the work is to be done and to co- ordinate the various activities, he has an obligation to prescribe a safe system of work. The fact that they are not employees, or that he does not retain a right to control them in the manner in which they carry out their work, should not affect the existence of an obligation to prescribe a safe system.” That passage makes clear that the obligation to provide a safe system of work is not confined to an employer/employee relationship but the duty of care which arose between the plaintiff and the defendant when the plaintiff commenced to assist the defendant to paint the veranda was that which arises under the ordinary principles of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the plaintiff. As Dawson J noted in Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 at 343, the nature and extent of the duty in the particular instance depends on the circumstances of the case. See also Jones v Bartlett (2000) 205 CLR 166 per Gleeson CJ at 184-5 and Crooks v Fitzgerald [2002] QCA 307. [29] I have accepted the plaintiff’s account of how the work was carried out. The system for accessing elevated places was devised by the defendant. Its risks would have been obvious to any person of ordinary foresight and the defendant (as was the -- 8 of 19 -- 9 plaintiff) was practised in carrying out manual tasks. I accept that the plaintiff mentioned the risks of working across the joists using the ladder and door system to the defendant. Whilst it was open to the plaintiff to decline to assist in such circumstances the realities of social obligation and the relationship of householder and guest meant that he would not. The defendant was in control of the work. [30] At the very minimum, since the work was to be carried out without any of the ways of eliminating the risk being implemented as suggested by Dr Ludcke, the defendant was obliged to check the position of the door and the ladder over the joists very carefully each time they were repositioned. That clearly did not occur when the defendant last moved the door and ladder and before the plaintiff ascended. I conclude that the defendant breached his common law duty of care to the plaintiff. Contributory negligence [31] The further question is whether the plaintiff should bear some responsibility for the event and subsequent injuries which befell him. Mr O’Sullivan suggested to Dr Ludcke that whether the base of the ladder was in a safe position would be obvious. He replied “What’s not obvious about it is if someone was not thinking that the ladder was going to tip up they would not be looking at it and therefore it would not be obvious. But if they did look at it it would be obvious it was a danger? -- If they were concerned with that particular aspect of it and specifically looked at the thing and the ladder was outside the joist to me it would concern me.” T 67. [32] No doubt after three hours the men were weary and may have been less vigilant. Perhaps the plaintiff was, as Mr Myers submitted, lulled into a sense of security because the defendant had successfully negotiated climbing and descending the ladder numbers of times. Nonetheless, I am persuaded that a man prudent about his own safety and with a working knowledge of ladders would have checked the location of the door and ladder each time he ascended. Because the defendant set up the system and positioned the door and ladder which was utilised by the plaintiff the apportionment should be attributed 75 per cent to the defendant and 25 per cent to the plaintiff. Quantum [33] After the plaintiff struck the ground he experienced severe stabbing pains over his whole body and particularly in his mid-thoracic area. He was taken to the local general practitioner who recommended that he be admitted to the Ipswich General Hospital where he was conveyed by ambulance. Apart from the wound to his leg, a CT Scan and other tests revealed no pathology although he was said to have an atypical presentation with reduced power in his limbs. The plaintiff remained in hospital for approximately four days and was discharged on crutches. He used crutches for two to three months. The plaintiff recalls constant headaches and very sore feet. The headaches have remained a constant source of pain and distress but their severity has alleviated and pain is now experienced severely several times a -- 9 of 19 -- 10 week. He continues to experience stabbing pain in his arms and legs particularly on his right side up to four or five times a day. [34] An unusual feature of the plaintiff’s symptoms is his experience of paralysis to various parts of his body. It takes many forms but sometimes he will feel a stabbing pain and he will fall down if the pain is in his leg. It is particularly prevalent on the right side in his face, his leg and his arm and hand. He sometimes gets cramping of the right hand and cannot release what he is holding. The paralysis has affected his speech and on occasions his wife has been so alarmed that she has called an ambulance to admit him to hospital. [35] The plaintiff also “passes out”. This symptom first occurred about 12 – 14 months ago. It sometimes coincides with severe pain. Sometimes he is aware that he will lose consciousness and is able to lie down. He said that this occurs every other afternoon on average but some days it occurs every day. The passing out has sometimes occurred when he has been working with tools in his shed and regularly occurs in the house. [36] Mrs Bamford recalled observing the first instances of paralysis perhaps three months or so after the fall. She said that the paralysis would normally be preceded by extreme pain and if his leg was affected he would fall down and she would need to assist him. There were other symptoms of paralysis on a smaller scale, for example, if he were in the kitchen with a knife or a glass in his right hand it would seize up and it was impossible to move it in any way. Mrs Bamford said she would need to pry things out of his hand because he was unable to let go. [37] Mrs Bamford described the “passing out”, the most recent example of which had been two days before she gave evidence, when he was sitting in a bean bag watching television. She tried to call out to him but he did not hear and had actually “passed out”. She said that that occurred three or four times that day. She said it could be distinguished from dozing off whilst watching television because she calls out at him very loudly, he doesn’t answer and his eyes are fixed and unblinking and his face goes extremely white. When her husband falls, Mrs Bamford gets a pillow to make him comfortable, removes his spectacles and turns his head so that he breathes easily and waits for him to resume consciousness. They have both noted memory deficits. [38] The plaintiff is and has been very concerned about these symptoms for which, so far as he and his wife are concerned, there has been no satisfactory explanation. Consequently he became depressed and socially withdrawn and very anxious about the financial hardship that not working has brought to the family. He is treated with anti-depressants by his general practitioner. [39] The plaintiff was seen at the Princess Alexandra Hospital Neurology Outpatients Clinic in November 2002. The symptoms of spasms particularly down the right side of his body associated with pain in his head and neck were noted together with pain in his feet. The stabbing pains all over his body were recorded and the paralysis which Dr J Fidge, the neurology resident, described as “fixed posturing” when gripping things was also noted. Dr Fidge noted that an electroencephalogram (“EEG”) had raised the possibility of a minor left hemisphere structural lesion but it was thought to be within normal limits. He and Dr Silburn, the visiting neurologist to the clinic, commenced the plaintiff on Lamactil in a relatively low dosage to -- 10 of 19 -- 11 assist with his spasms. The plaintiff said that his medication had no ameliorating effect on his spasms. [40] Dr Silburn described the plaintiff’s episodic neurological events as “quite unusual” after seeing him again in February 2003. Dr Silburn prescribed an increase in the medication dosage for a further trial. The “borderline EEG” showing some left hemispheric slowing but no epileptiform discharges and was not thought to be suggestive of any primary neurological disturbance. Dr Silburn thought these results combined with the plaintiff’s unusual history was suggestive of somatization. He did not think there was any stress or secondary gain involved. [41] Dr Geoffrey Boyce, a consultant neurologist, saw the plaintiff shortly afterwards. He noted a right mild hemiplegia (as had Dr Silburn). Dr Boyce concluded that the plaintiff had some damage to the left parietal region of his brain. He recommended further tests and that the plaintiff see a neuropsychologist. [42] The plaintiff was tested by Dr Maureen Field extensively on 9 and 11 September 2003. She concluded that the plaintiff’s responses to the Personality Assessment Inventory (PAI) indicated that he has concerns about physical functioning and health matters. His complaints focused on neural and musculoskeletal symptoms involving features often associated with conversion disorder such as unusual motor and sensory dysfunctions. Dr Field concluded that the diagnostic possibilities included a conversion disorder or an adjustment disorder with depression. She concluded that the pattern of deficits was not suggestive of brain injury. She thought they probably reflected variability in cognitive functioning as a result of fluctuating physical status, pain and depression and noted that the plaintiff himself had said that his memory deficits depended on how he was going on the day. [43] Dr Field noted that the plaintiff and his wife described his disturbances as though they may have an organic neurological basis which she thought credible even though the symptoms had an unusual quality and could readily be ascribed to a conversion disorder. [44] The plaintiff was seen by two psychologists, Dr Andrew Byth and Dr Roderick Apel. [45] Dr Byth diagnosed the plaintiff as suffering from an adjustment disorder with depressed mood and a conversion disorder under DSM-IV. He based his diagnosis on the plaintiff’s history and the neuropsychological testing by Dr Field. Dr Byth observed that the plaintiff had been distressed by continuing pain, insomnia and restriction of his physical activity and was upset that he could not work or drive and disliked being dependent on other people for assistance. As a consequence, he concluded, he gradually developed a psychological reaction of depressed mood accompanied by social withdrawal, irritability and pessimistic thinking. In conjunction with this depressive condition, Dr Byth concluded that the plaintiff had also developed a conversion disorder, classified in DSM-IV amongst the somatoform disorders. Dr Byth wrote in his report of 29 January 2004 “In this condition, patients develop physical symptoms, usually resembling neurological conditions, for which no adequate, physical (organic) cause is demonstrable, and unconscious psychological factors are thought to play a major contributing part.” -- 11 of 19 -- 12 Dr Byth concluded that the psychological factors contributing to the plaintiff’s conversion disorder appeared to be his difficulty in coping with pain from the original soft tissue injury in the fall and his ongoing depressed state since that injury. There was probably a contribution from the plaintiff’s belief of serious injury in the fall enforced by concerns about his abnormal EEG findings and the “anxiety provoking and drawn out process of medical investigation”. [46] Dr Byth did not find any evidence of factitious disorder (consciously feigning or exaggerating symptoms in order to be granted the sick role) or malingering (similar behaviour but for personal gain). He concluded that the plaintiff’s adjustment disorder had partially improved with anti-depressant therapy but that his conversion disorder “has become chronic and entrenched”. Dr Byth recommended that due to the moderate severity of his symptoms, their duration and the complexity of his case, the plaintiff requires treatment by a specialist psychiatrist for the next two years. The plaintiff’s adjustment disorder should be treated with support counselling, review of his anti-depressant treatment and a trial of cognitive behaviour therapy. His conversion disorder should be managed by his psychiatrist encouraging him to increase his daily activities and slowly resume a more normal life with its responsibilities and to phase out assistance with activities from other people where possible. [47] As a result of his injury Dr Byth concluded that the plaintiff is suffering from a permanent psychiatric impairment of 20-50 per cent considering the person as a whole. He concluded that the plaintiff possibly had a mild predisposition to depression and conversion disorder based on the history of his reaction to losses associated with an earlier business venture. That would suggest that the condition is more difficult to treat successfully. He did not believe that the plaintiff’s symptoms would improve at the end of the trial and that the plaintiff was a person who would return to work if he could. [48] The defence explored the plaintiff’s response to two past events – one medical and one business – to suggest to the relevant medical witnesses that the plaintiff had something of a predisposition to a conversion disorder and depression. In 1997 the plaintiff experienced pain in his right upper limb after lifting at work. After the symptoms had been experienced for some three months the plaintiff saw Dr Christopher Staples, a neurologist, in May 1997. Dr Staples described the ensuing symptoms in a report of 20 May 1997 “Two hours later his hand was swollen and as he attempted to massage his hand he acutely developed upper limb and shoulder pain as well as involving the lateral neck. The swelling lasted at least two weeks and was associated with numbness of the hand, the latter easing after a further couple of weeks. He now has upper limb pain at times aggravated by using the right arm, at least twice a day, lasting between four to five hours. He says there is a shooting pain in the dorsum of the hand and forearm. An ache in the shoulder and lateral neck and this at time is associated with a right occipital headache. At night he can wake with numbness of the arm and pain on shoulder movement. ... -- 12 of 19 -- 13 This is all very strange and I cannot put a label on him at present. I suggested he have nerve conduction studies to exclude carpal tunnel syndrome etc but this would seem unlikely. If he returns, I will let you know the results” [49] Dr Staples comments parallel those of the neurologists who have seen the plaintiff since his fall. This does lend some credence to the idea that the plaintiff was vulnerable to a strong reaction to pain. The plaintiff did not return for further testing because the symptoms resolved. He had only a few days off work on compensation. His wife did not recall the event as being significant. [50] The plaintiff entered into a chrome plating business with partners in about 1999. Initially he put money into the venture but did not work in it. The business did not do well due, in the plaintiff’s opinion, for want of expertise in the operating partners. In due course he himself started working in it to attempt to rescue it financially. There were disputes and a gradual accumulation of bills. The plaintiff had to sell assets to pay the bills. He became very anxious and stressed and consulted his general practitioner. The plaintiff agreed that between about October 2000 and March 2001 his anxiety and depression was such that he was unable to return to remunerative work. [51] Although Mr O’Sullivan opened calling the plaintiff’s general practitioner, no doubt in the expectation of further elaboration of his depression, Dr Johnson was not called. The situation in which the plaintiff found himself was clearly one where a person of ordinary psychological fortitude would have felt anxious and stressed. It might be thought that the plaintiff’s reaction was prolonged but without embarking on an extensive hearing about the break up of the business it is difficult to conclude that the plaintiff’s reaction was outside the range of responses which an ordinary person might have had, allowing “ordinary” to have a fairly wide meaning. [52] Dr Apel saw the plaintiff once on 16 July 2003, although he has prepared four reports in relation to the plaintiff. In his first report he concluded that the plaintiff had a conversion disorder with mixed presentation. He noted that although a factitious disorder was a possible diagnosis he was unable to establish external incentives for the plaintiff’s behaviour such as economic gain or avoiding some legal responsibility. He thought that the plaintiff’s condition was fluctuating and it would be advantageous for him to attend rehabilitation to allow observation of his work strength and to direct him constructively. He noted that he would also benefit from psychiatric and psychological supervision during his rehabilitation which would allow him to return to work. He noted that it was highly desirable to prevent the plaintiff’s symptoms becoming fixed so that there should be an early finalisation of his case. [53] The defendant’s solicitors on receipt of Dr Apel’s report, which they had commissioned, asked Dr Apel to note that the amount of money involved in the plaintiff’s claim was very large. The solicitors found it difficult to make sense of Dr Apel’s conclusion that factitious disorder could be rejected. Dr Apel responded that the diagnosis “at this stage is not final”. He suggested that the plaintiff be referred to a rehabilitation unit where further observation could be obtained. The balance of the report identifies discrepancies within the plaintiff’s various accounts of his -- 13 of 19 -- 14 symptoms and suggests, without expressly doing so, that Dr Apel may have been retreating from his diagnosis. After receiving reports from Dr Byth and Dr Field, Dr Apel embraced his initial diagnosis and concluded that the plaintiff’s psychological impairment was in the higher middle range. He assessed that impairment at 10 per cent based on his psychological difficulty of conversion and adjustment disorders. [54] When Dr Apel gave his evidence he concluded that the plaintiff’s conversion disorder was a reoccurrence of a pre-existing disorder precipitated by the accident based on the plaintiff’s history in 1997 and when his business was in difficulties. Dr Apel thought there was every likelihood that the plaintiff would have decompensated without the fall from the veranda if he had been exposed to other trauma. [55] I found Dr Byth’s approach of more assistance in understanding the plaintiff’s condition and his likely prognosis. [56] Dr Peter Landy, a neurologist for some 50 years, saw the plaintiff on two occasions. He saw him first on 21 March 2003 with his wife. She was able to describe the plaintiff’s paralysis and his “passing out”. During examination the plaintiff had what appeared to be an episode of paralysis. Dr Landy noted that the fingers of the plaintiff’s right hand extended and he held his arm stiffly. There were no convulsive movements. The episode lasted about one minute. Dr Landy concluded that the symptoms did not indicate epilepsy or a neurological condition. In his 8 May 2003 report he suggested a psychiatric assessment might be of assistance. [57] The plaintiff underwent a sleep deprivation EEG by Dr Noel Saines in September 2004. The tracing showed “There are also occasional low amplitude sharp and theta wave complexes in the left temporal region. With hyperventilation these focal discharges increase in prevalence with a few higher amplitude sharp slow discharges and a rare short run of independent theta activity over the right temporal region.” When the tracing had been completed the plaintiff developed an episode of right leg weakness when he stood up. The EEG tracing was immediately recommenced but there was no specific EEG abnormality noted. [58] Dr Landy again saw the plaintiff on 4 October 2004. He received an updated history from the plaintiff and discussed with Mrs Bamford the plaintiff’s “passing out” or “turns”. Dr Landy concluded that the plaintiff was not suffering from epilepsy. Dr Landy was cautious about regarding the sharp waves rather than spikes on the EEG as an epileptogenic focus, particularly since there were no specific abnormalities recorded on EEG after the episode of right-sided leg weakness. [59] Dr Landy regarded the three most important diagnostic tools for epilepsy as the observations of an eye witness, the EGG, and a video of the patient whilst undergoing an EEG. There was no video but the results of the other two were such as to persuade him there was no epilepsy present and a conversion disorder was the likely diagnosis. He also thought that some reduction in the “paralysis” should have -- 14 of 19 -- 15 been evident after being on Lamactil for some months. Dr Boyce thought the dose too low to have been effective. [60] After considering Dr Saines EEG results, Dr Boyce concluded in his report dated 30 September 2004 that on balance “and using reasonable medical certainty” it was his opinion that the plaintiff was suffering epileptic events. His level of impairment was assessed at 35 per cent. Dr Boyce was cross-examined at some length. Whilst he did not resile from this conclusion nonetheless he conceded that there were abnormalities about, for example, the high frequency of the plaintiff’s blackouts. [61] I have concluded, on a consideration of the whole of the evidence, that I am not persuaded to the requisite standard that the plaintiff suffers from epilepsy brought about by his fall from the veranda. Dr Byth and Dr Landy accepted that epilepsy could co-exist with a somatoform disorder. The other specialists were not asked. Heads of Damage Pain and suffering and loss of the amenities of life [62] At the time of his fall the plaintiff was aged 34. He had been married for a number of years and had two teenaged children. He had been in fairly constant employment since leaving school at age 15. His interests had included bushwalking, surfing, scuba diving, drag racing and maintenance of cars. Some of these recreational pursuits involved the whole family and he and his wife enjoyed a good relationship with outside activities and socialising. As a consequence of the plaintiff’s symptoms and financial hardship these activities have been severely curtailed. Whilst he is able to undertake some activities the plaintiff has constant pain from his headaches and in his limbs and his “passing out” and paralysis confines his to home. His quality of life is very poor. He also has the consciousness that his condition had made life miserable for his wife and limited the relationship with his children. [63] It seems likely that if the plaintiff participates in the treatment recommended by Dr Byth there will be a real alleviation of these symptoms and he will be left with only mild residual features of the conversion disorder and the adjustment disorder. The plaintiff has great difficulty in accepting a non-organic basis for his symptoms. In evidence he said “I don’t believe I’m mad I don’t – I find great difficulty in coming to terms with that” T 36. In order for him and for his family to have a much better quality of life it will be necessary for him to recognise and accept his need for treatment and the assessment of his damages is based on the assumption that he will do so. [64] I would allow $35,000 for damages under this head. Interest should be allowed on half of that amount at 2 per cent per annum for two and two thirds years (to judgment), amounting to $933.33. Special Damages [65] Refunds to the Health Insurance Commission, Ipswich General Hospital, travelling expenses to treatment and pharmaceutical expenses have been agreed in the amount of $5,809.00 which is allowed. [66] Interest is awarded on $811.05 of those damages at 5 per cent per annum for two and two third years which amounts to $108.14. -- 15 of 19 -- 16 Past economic loss [67] After the plaintiff left school he obtained a certificate of attainment from Yeronga TAFE in skills for living and working in May 1984. He upgraded his qualifications obtaining a certificate of competency as a crane driver in 1989 and a heavy vehicle driver’s license and St John’s Ambulance qualifications. Since the accident he has been required to surrender his driver’s licence because of his risk of blackouts. His past employment history included a year as a driveway attendant, two years as a brewery technician at Power’s Brewery, two years as a dye setter and 4-5 years with Kings Car Park in Eagle Street in the City. Thereafter he went into partnership with two others operating a chrome plating shop. It ran at a loss and the company was eventually wound-up. This enterprise caused considerable financial loss to the plaintiff and he then took on work as a plasterer. [68] The plaintiff worked as a roofer with Westwind Roofing for 8-12 months. He had had no previous experience as a roofer but learnt on the job. He finished that work in March 2002. One of his fellow employees had been a Mr Aaron Wilson. Mr Wilson was and is a sub-contract roof plumber. When the Westwind Roofing work finished Mr Wilson decided to look for work in Sydney. He told the plaintiff that if he wished to come and work with him there he was welcome. The plaintiff telephoned Mr Wilson just before Easter 2002 that he would be in Sydney in about two weeks. The fall intervened. During the past two and a half years there has been ample work available in and around Sydney. Mr Wilson and his other workers were engaged in carrying out a variety of construction work including shopping centres. At the time when it was anticipated the plaintiff would join him, Mr Wilson was about to start work at the Naval Air Base at Nowra. [69] After the plaintiff’s accident he asked if there was still a job available for him and Mr Wilson indicated to the plaintiff that if he had a doctor’s certificate he could work, but the plaintiff was never well enough to take up the offer. Mr Wilson was offering work seven days a week, 10 hours a day for four weeks and then return home to Brisbane for one week’s holiday. Mr Wilson would have paid the plaintiff $25 per hour being an approximate wage of $1700 gross per week from which would be deducted about $300 for living away from home deductions. The arrangement was that the men would share accommodation, fuel and food to cut costs to make as much money as they could while living away from home. [70] The plaintiff would be offered the work as a sub-contractor providing his own hand and some power tools. The likelihood of this arrangement coming to fruition was challenged by the defence. The plaintiff had been offered roofing work in Brisbane but said he had chosen the Sydney work. Mr Wilson was a very convincing witness. I had no doubt that he expected the plaintiff to join him shortly after Easter and that he could have remained with Mr Wilson as long as the work was available, which it was, until Mr Wilson returned to Brisbane in September 2003. Since his return to Brisbane Mr Wilson has experienced no shortage of roofing work. [71] There is no doubt that this level of remuneration was much greater than anything the plaintiff had managed in the past. He had been earning approximately $540 net per week as a roofer with Westwind Roofing. Prior to that his remuneration was more modest. The plaintiff has made a claim for $800 per week on the basis that he would have remained in employment as a contract roofer, probably with Mr Wilson, discounting the gross figure of $1,400 to take account of tax and the costs -- 16 of 19 -- 17 associated with returning home from time to time as well as the possibility that living away from home over a lengthy period would have proved unsatisfactory for the plaintiff and his family. I do not think $800 adequately reflects the deductions, costs and the return to Brisbane every fifth week for one week without remuneration and the chance that the plaintiff would not have stayed in Sydney. [72] The defendant proposes a figure of $460 net per week. This is much too heavily discounted in light of the evidence. I propose to start with $800 net per week but discount that figure for contingencies. The time from the injury to judgment is a period of 141 weeks. The calculation gives a figure of $112,800. I would discount that figure by 20 per cent to take account of the contingencies which I have mentioned giving a figure of $90,240 for past economic loss. [73] The plaintiff has received approximately $24,840 in Centrelink payments since the accident. Interest should be allowed at 5 per cent per annum for two and two thirds years on $65,400 which amounts to $8,720. Past gratuitous care [74] The plaintiff’s wife now receives a carer’s pension. She has devoted herself to him since his accident. According to some of the medical opinion he has become too dependent upon her. For the first two months or so the plaintiff needed considerable assistance in all aspects of his daily life because he was on crutches. Thereafter necessary assistance was due to his “passing out” and paralysis. To a large extent Mrs Bamford’s role has been a supervisory one to ensure that no harm comes to the plaintiff whilst he is having a “turn” and to assist him if the cramping involves some danger such as holding a knife. She is responsible for most of the driving which hitherto he would have engaged in doing and many other general domestic tasks. The plaintiff claims six hours a day for the first two months when he was on crutches and thereafter three hours a day. The defence proposes three hours a day for the first two months and three hours a week thereafter on the basis that the paralysis occurred two to three times a week from the date of the accident and from June 2003, seven hours a week, presuming an extra one hour a day to deal with the “blackouts” which the plaintiff said had started about 12-14 months ago. The agreed rate is at $15 per hour. [75] Claims of this kind are particularly difficult to evaluate. The dependency the plaintiff has on his wife and her fulfilment of that role tends to make her involvement virtually 24 hours a day. This is not reasonable and the claim is not made on that basis. Keeping in mind the evidence about what was entailed initially in looking after the plaintiff I will allow five hours a day for the first 60 days giving an amount of $4,500. Taking account of the varied quantity and duration of the paralysis and “passing out” as well as the later commencement time of the “passing out” I would allow an average of 2 hours a day over the period from 30 May 2002 to judgment, a period of 133 weeks which gives an amount of $27,930. In my view there is no basis for any deduction under s 54(5) of the Personal Injuries Proceedings Act 2002. [76] Interest is allowed on the total of $32,430 at 5 per cent per annum for two and two third years giving an amount of $4,324.00. -- 17 of 19 -- 18 Loss of future earning capacity [77] Dr Byth considered that the plaintiff would be unlikely to return to work until he had completed two years of psychotherapy. Even then it would not be safe for him to engage in roofing or driving heavy machinery. The plaintiff makes a claim at $800 per week for two years. The defence correspondingly submits that the amount of $460 per week more appropriately reflects the plaintiff’s actual loss. The figure of $800 per week was based on the very high income to be earned working seven days a week in Sydney plus a week off approximately five weekly. Mr Wilson has returned to Brisbane to work and it is highly unlikely that the plaintiff would have remained in NSW without that team. It was not suggested that he would have done so. He was earning just on $540 net per week at Westwind Roofing at the beginning of 2002. Allowing for the better paid work because of more extensive experience and industry contacts but also recognising that once home the plaintiff would more likely have developed a less extensive working week. I would allow a loss of $675 for two years using the 5 per cent tables. This gives a figure of $67,095. [78] Thereafter, according to Dr Byth’s evidence, the plaintiff will have a mild residual adjustment disorder and conversion disorder. This will necessarily preclude him from the higher paying work. I accept the submission that there will be a net loss to the plaintiff as a consequence of the residual effect of the injury sustained in the fall which can only be valued in a global way. [79] The defence submits for a global figure of $25,000 to reflect “some disadvantage in the work force” relying on Dr Apel’s opinion that the resolution of the litigation will lead to considerable improvement in the plaintiff’s condition. Dr Byth’s opinion has been accepted that it will take two years of psychotherapy to bring the plaintiff to a state where he can work regularly. [80] The plaintiff claims a loss of $200 net per week until 65 which takes account of lost superannuation benefits at 9 per cent for the future. This will only apply if the plaintiff is not self-employed. It seems clear from Mr Wilson’s evidence that as sub-contract roofers benefits such as superannuation are the responsibility of the sub-contractor and that if the higher wages are to be earned it would be as a subcontractor. The defence contends that the plaintiff’s past suggest that he would respond to trauma in a way similar to his response to this fall and comes to this litigation as a vulnerable person. I conclude that there is some support for this in his response to the pre-fall incidents. This possible vulnerability can be reflected in discounting the future loss. [81] Taking account of the plaintiff’s past employment history which, until the 8 months prior to injury had been modest so far as remuneration was concerned and taking account of the vicissitudes of life I would allow a loss of $125 per week to age 60 using the 5 per cent tables deferred for two years, that is, $125 x 621.8 (multiplier 721.2 less 99.4) giving a figure of $77,725. [82] The amount to represent loss of future earning capacity is $144,820. Future medical expenses -- 18 of 19 -- 19 [83] Dr Byth has assessed the plaintiff’s future psychiatric treatment as costing approximately $6,000 which is allowed on the basis that he will undertake such treatment. Amounts have been claimed for visits to his general practitioner for the receipt of medication and consultations referred by his psychiatrist in the amount of $350 which is allowed. Future expenses are allowed in the amount of $6,350. Future gratuitous care [84] The plaintiff makes a claim of three hours a day at $15 an hour for the two years he will undergo psychotherapy. That is at the rate which is claimed to trial when he has had no treatment. I am of the view that as a consequence of successfully undertaking and concluding the treatment the plaintiff will be enabled to dispense with the close care of his wife. This will occur gradually. I propose to allow one hour a day over two years to reflect this which I will round off at $10,000. Description $ General damages for pain, suffering and loss of the amenities of life, past and for the future 35,000.00 Interest on one half of general damages 933.33 Special damages 5,809.00 Interest on special damages 108.14 Past economic loss 90,240.00 Interest on past economic loss 8,720.00 Past gratuitous care 32,430.00 Interest on past gratuitous care 4,324.00 Loss of future earning capacity 144,820.00 Future medical expenses 6,350.00 Future gratuitous care 10,000.00 TOTAL: 338,734.47 [85] That sum should be reduced by 25 per cent to represent the plaintiff’s contribution to his own injuries. [86] Judgment is given for the plaintiff against the defendant in the sum of $254,050.85. -- 19 of 19 --