Williams v Workcover Authority of NSW & Ors [2004] ACTSC 122 (26 November 2004)

Last Updated: 6 December 2004

GEOFFREY ANDREW WILLIAMS v WORKCOVER AUTHORITY OF NEW SOUTH WALES and AFS CATERING PTY LIMITED and THE COMMONWEALTH OF AUSTRALIA

[2004] ACTSC 122 (26 November 2004)

NEGLIGENCE - employers' liability - personal injury - unsafe system of work - unsafe place of work - injury occurring away from employer's premises - non-delegable duty of employer

NEGLIGENCE - personal injury - occupier's liability - fall on staircase - condition of steps - adequacy of lighting

NEGLIGENCE - personal injury - occupier's liability - slippery substance on floor - no issue of principle

DAMAGES - personal injury - L5-S1 disc excision - lumbar and interbody fusion - no issue of principle

Evidence Act 1995, s 67

No. SC 173 of 1996

Judge: Master Harper

Supreme Court of the ACT

Date: 26 November 2004

IN THE SUPREME COURT OF THE )

) No. SC 173 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: GEOFFREY ANDREW WILLIAMS

Plaintiff

AND: WORKCOVER AUTHORITY OF NEW SOUTH WALES

First defendant

AND: AFS CATERING PTY LIMITED

ACN 004 292 951

Second defendant

AND: THE COMMONWEALTH OF AUSTRALIA

Third defendant

ORDER

Judge: Master Harper

Date: 26 November 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for each of the defendants.

1. The plaintiff claims damages for personal injuries suffered as a result of a fall down an internal flight of stairs at the Treasury Building at Parkes. The plaintiff was employed by GK Sanford Pty Limited as a delivery driver. The company was a delivery contractor in the food services industry. One of its regular customers was the Department of Finance cafeteria in the Treasury Building. The cafeteria was operated by the second defendant, AFS Catering Pty Limited as a tenant of the third defendant, the Commonwealth of Australia, the owner of the building. The staircase on which the plaintiff fell was not within the leased area and was relevantly occupied by the Commonwealth.

2. The plaintiff's employer went out of business in 1996, the year after the plaintiff's injury, and has since been deregistered. Its liabilities for the purpose of the present proceedings have become the responsibility of the Workcover Authority of NSW, a statutory authority of the State of New South Wales, which has been substituted as first defendant in place of the employer. The first defendant concedes that if I find the employer liable to the plaintiff, the plaintiff is entitled to succeed against it.

3. The second and third defendants had previously been separately represented, but by the time the hearing commenced they had agreed to be represented by the same counsel. Although the first defendant was separately represented, agreement had been reached between the three defendants as to apportionment of liability between them in the event of a finding against more than one defendant, relieving me of the task of apportionment between defendants.

4. The plaintiff's case is that his fall occurred on Friday 24 March 1995. The precise date is not the subject of agreement between the parties, though it must have been at about that time. To protect the plaintiff against the risk of failing because of a mistake about the date, counsel with my leave amended the statement of claim at the commencement of the hearing to plead that the incident occurred "on or about" 24 March 1995.

5. The plaintiff was born on 12 December 1961 at Cootamundra, New South Wales. He was thirty-three at the time of his fall and is now forty-two. His job with Sanfords required him to drive a light truck and to deliver such items as drums of cooking oil, bags of sugar and containers of frozen food to a number of cafeterias and restaurants. The Finance cafeteria was one to which he made deliveries regularly, sometimes daily. His base was the company depot at Queanbeyan.

6. For deliveries at the Treasury Building, he needed to reverse his truck down a ramp into a basement-level delivery dock. His usual practice was to unload the items for delivery from the truck and carry them to a goods lift at the end of the dock. He would put the items into the goods lift and direct it to the ground floor, where the kitchen and cafeteria were located. He would then walk up an internal staircase to the cafeteria, take the items out of the lift and deliver them to the kitchen staff.

The staircase

7. The staircase was tiled with ceramic tiles. It consisted of a single flight of about fourteen steps. There was a handrail on the right (ascending). The entire staircase was enclosed, with spring-closure fire doors at top and bottom. The door at the top opened inwards and was set into the wall on the right (ascending) immediately beyond the upper end of the railing, so that when closed it was in line with the direction of the steps.

8. The door at the foot of the steps opened outwards, away from the bottom step. There was a small landing between the bottom step and the door. The lower door was at right angles to the direction of the steps when closed, that is parallel to the bottom step.

9. There was no electric light at the top of the steps. There was a light fitting, consisting of two parallel fluorescent tubes, on the ceiling a little more than halfway down. When the doors were shut, there was no natural lighting, so that if both doors had been shut and the light was off, the entire staircase would be in darkness.

10. The plaintiff's evidence is that the roller door to the basement dock was always open when he went there. I can infer that this would have allowed some natural light into the dock during the day, and a small amount of natural light into the stairwell when the lower door was open. There may also have been some artificial light in the basement dock area, though there is no evidence about this. If there was artificial light in the area, it might also have played some part in lighting the lower part of the staircase when the lower door was open.

11. The upper door was adjacent to a floor-length external window at right angles to its hinged end, that is, its end furthest from the stairs. This permitted the entry of natural light into the stairwell when the upper door was open.

Liability - the plaintiff's evidence

12. The plaintiff's evidence was that on the day of the accident, Friday 24 March 1995, he made two deliveries to the Finance cafeteria. The first was his regular delivery and was free of incident. Later there was a special order, he thought for additional chips and sugar. He got to the Treasury Building at about lunchtime and reversed his van into the loading dock. Because there were only two items, he decided to carry them up the stairs rather than use the goods lift. He noticed when he went up the stairs that the florescent light was not working. The only light in the stairwell came through the lower door, which was wedged open.

13. The plaintiff did not suggest that he experienced any difficulty in taking the items up the stairs to deliver them. At his request the cafeteria manager signed the delivery docket. The plaintiff then went into the kitchen and had a conversation with one of the cooks, with whom he had become friendly over time. This took him past a food preparation bench and into an area where deep fryers were located. After this, he left the kitchen and walked back to the door at the top of the stairs. He had the signed docket in one hand. He opened the door and walked through to the landing at the top of the stairs. He turned to his left to go down the stairs. As he put his foot onto the first step, his feet gave way. The sensation was of his foot not coming to a stop when he put it down, but keeping on going. He fell down the stairs, evidently sliding and bumping on his buttocks. He did not stop until he hit the door at the bottom of the steps. He was unable to get up immediately, and was in considerable pain in the low back area. Eventually he got up, swore and kicked the door. He went out through the door to his van. His oral evidence was that the slip occurred as he put his foot on the step immediately below the landing at the top of the staircase: what I would call the second step. He was unable to say which foot it was, or whether both feet slipped at the same time. He said that he made an observation that the edge of the tiles of the step was chipped.

14. His evidence was that he drove back to the depot at Queanbeyan. By the time he got there, he was feeling very sore in the low back. He said that he walked to the office and reported the accident, and made a telephone call to his wife, who came and collected him and took him home. When he got home, he took his shoes off and noticed an oily or fatty substance on the bottom of one or both shoes. He could not recall whether it was both shoes or, if only one, which shoe. He said that the shoes were Reeboks, only two weeks old.

15. He was asked whether he had observed anything on the floor of the cafeteria when he had been there. He said that he had noticed a piece of lettuce but nothing else.

16. In the course of cross-examination, the plaintiff agreed that the kitchen was usually clean. He agreed that he had told the ergonomic and safety management expert qualified in his case, Dr NL Adams, that his foot had slipped on the top step of the stairs, and that the tiles along that step were chipped at the edge and cracked. Shown a photograph, he identified the step on which he had tripped as the step immediately below the landing, which he described as the first step. He said that as far as he was concerned, the landing was not a step but a landing. He denied that he had told Dr Adams that he slipped on the landing step. Dr Adams in his report says that the history he obtained was that the plaintiff's foot slipped on the top step and he fell down the entire length of the stairway. There may have been room for confusion as to which step the plaintiff slipped on, if indeed the plaintiff habitually described the step immediately below the landing as the top step, whereas Dr Adams regarded the landing itself as the top step. Dr Adams had conducted his inspection, with the plaintiff present, in November 1995, some eight months after the fall.

17. The plaintiff was, however, taken to answers to interrogatories administered by the third defendant, which he had verified on oath in July 2002. These included the following questions and answers:

3.1 Q. Does the plaintiff say that he slipped on the top step of the internal stair?

A. Yes.

3.2 Q. Does the plaintiff admit that photograph five attached to the report of Dr N Adams dated 22 November 1995, a copy of which is annexed hereto and marked with the letter "A", depicts the top step where he slipped?

A. Yes.

3.3 Q. If "yes" to 3.2 please mark the annexure with an "X" at the precise location where the plaintiff slipped.

A. I have marked the annexure in the approximate location where I slipped.

3.5 Does the plaintiff say the slip on the top step was caused by

3.5.1 Q. a greasy substance on one or both of his shoes (saying which)?

A. Yes, one or both shoes.

3.5.2 Q. a broken tile or broke (sic) tiles on the step?

A. Yes.

3.5.3 Q. some other circumstance?

A. Yes.

3.6 If "yes" to 3.5.1

3.6.1 Q. what was the greasy substance?

A. I assume that it was a fatty substance from the kitchen floor.

3.6.2 Q. did the plaintiff observe it on his shoe or shoes after he fell?

A. Not immediately after the fall, but when I returned home approximately two hours later.

3.6.3 Q. Was the plaintiff aware of the substance on his shoe or shoes before he slipped?

A. No.

3.6.4 If "yes" to 3.5.1

3.6.4.1 Q. When did he first become so aware?

A. I refer to answer 3.6.2.

3.6.4.2 Q. Where was the plaintiff when he first became so aware?

A. At home.

3.6.4.3 Q. How did the plaintiff become so aware?

A. I looked at my shoes as I removed them.

3.6.5 Q. How did the greasy substance come to be on the plaintiff's shoe or shoes?

A. I assume the substance came from the kitchen floor at the premises.

3.7 Q. If "yes" to 3.5.2 identify each broken tile said to have contributed to the slip by marking it with a "T" on annexure "A".

A. I slipped on one of the two steps which I have marked T1 and T2.

3.8 If "yes" to 3.5.3

3.8.1 Q. identify each such circumstance said to have contributed to the slip.

A. (a) there was no non-slip surface on the tiles

(b) there was no non-slip strips (sic) on the edge of each step

(c) there were no railings to grasp to avoid falling

3.8.2 Q. Say with respect to each such circumstance precisely how it is said that it contributed to the slip.

A. (a), (b) meant that the step surface was slippery and that

contributed to me losing balance.

(c) contributed to my fall as there was no railing to grasp when I started to fall

3.9 Q. Did the plaintiff slip on one or both feet?

A. My left foot went from under me.

3.10 Did the plaintiff slip on one foot only, was it his

3.10.1 Q. left foot?

A. Yes

3.10.2 Q. right foot?

A. No.

18. The annexure referred to in question 3.2 was a photocopy of a photograph of the landing step. The photograph showed part of the horizontal surface of the next step, but not its nosing or edge. The photograph shows that the staircase was some five and a half tiles wide, with the part-tile on the left (ascending). The plaintiff marked the two central horizontal tiles on the landing step as T1 and T2 and marked an X on the dividing line between those two tiles. The step marked was clearly the landing step, which was inconsistent with the plaintiff's oral evidence, but the point should be made that whilst there were eight photographs contained within Dr Adams's report, most showing a number of the steps on the staircase, the plaintiff was presented in the interrogatories with a photocopy of only one of the photographs, that being a photograph which showed the landing step only, and not the step immediately below, or any other steps. The plaintiff's evidence, supported by other material in the case, is that his reading and writing skills are extremely limited. I am not sure that I can be satisfied on the basis of the answers to interrogatories that there was not some misunderstanding about which step he was identifying. I am not satisfied on the basis of that evidence alone that the plaintiff sought to change his story about which step he had slipped on. The plaintiff explained it as an honest mistake. On the basis of other evidence which I shall come to, the defendants succeeded in casting considerable doubt on the plaintiff's honesty and credit generally, but in relation to this piece of evidence, I think the more likely explanation is that the plaintiff did make a genuine mistake by reason of some misunderstanding.

19. Cross-examined about the greasy substance on his shoe or shoes, he said that he drove the truck back to the depot and went straight home. He did not go anywhere else. He explained the two-hour delay by saying that he had to wait at the depot for his wife to collect him.

20. He conceded in cross-examination that the handrails could have been in place at the time of his fall, and that he may not have noticed them. He said that he had never used the handrails, if they were in place.

21. In his oral evidence, he did not adhere to his interrogatory answer that it had been his left foot that slipped, and not his right. His oral evidence was that he could not say which foot it was. He put this discrepancy down to an honest mistake also. This is a little more difficult to accept. However, although it casts some shadow on his credit, it does not seem to me of much significance. The interrogatories were answered, after all, some seven years after the accident, and it is unlikely that his recollection by that time would have been any more accurate than at the time of trial.

Liability - the other lay evidence

22. Mr IL Sanford was called in the first defendant's case. Mr Sanford was in March 1995 the depot manager at the Queanbeyan depot of GK Sanford Pty Limited. The company ceased operating in about August 1996, and Mr Sanford now lives in Sydney and is employed in property maintenance.

23. His responsibilities in 1995 included management of staff, stock control and keeping of timesheets and vehicle records. He said that the company had three hundred to four hundred customers in the Canberra-Queanbeyan region, including the second defendant. The plaintiff had been employed by the company since about October 1994 as a delivery van driver. He made deliveries to about fifteen regular customers, the majority being cafeterias conducted by the second defendant which included kitchens and food preparation areas. He was required to deliver goods to the Finance cafeteria at least every second day.

24. Mr Sanford recalled the plaintiff telling him in March 1995 that he had slipped down some stairs at the Finance Department. He blamed loose tiles on the steps. The conversation took place in the office at the depot. Mr Sanford's recollection was that after the conversation, the plaintiff did another delivery on that day, and continued to work for a few days into the following week. He produced a copy of two pages extracted from the company's records, showing the hours worked by the plaintiff and a number of other employees during the weeks commencing 20 March and 27 March 1995. Monday 20 March was a public holiday. According to the records, the plaintiff commenced work at 5.30 am on 21, 22, 23 and 24 March. His finishing times on those days were 3.45 pm, 3.00 pm, 3.30 pm and 3.00 pm respectively. The following week, he commenced at 5.30 am on 27, 28 and 29 March, finishing at 3.00 pm on the Monday and Tuesday, and at 12 noon on Wednesday 29 March. The entry for that date includes the word "compo". The records indicate that the plaintiff was not at work on Thursday 30 March or Friday 31 March, "compo" being the explanation.

25. Mr Sanford said that the plaintiff had not made any complaint about the condition of the steps or tiles before his fall. Mr Sanford had first been asked to recollect these events and make a statement in October 1996, from which he refreshed his memory prior to giving oral evidence.

26. Cross-examined on behalf of the plaintiff, Mr Sanford agreed that to the extent that anyone at the Queanbeyan depot of the company was in charge at safety, it was his responsibility, but this did not involve any specific duties. He agreed that the plaintiff was a good worker, and he would have continued to employ him if not for the injury.

27. Mr Sanford occasionally acted as a relief driver and made deliveries. In this role he had been to the Finance cafeteria a few times before the plaintiff's fall. He made a special trip there about two days after the accident to inspect the stairs. He observed that some of the tiles were cracked or broken and that the odd tile was missing. He accepted the proposition that at the time of the inspection, the stairs were unsafe. He agreed that the issue of any complaint about the stairs by the plaintiff prior to the fall had not been dealt with in his 1996 statement, and that his evidence that there had been no such complaint was based on his memory, though he said that reading the statement again on the morning of the hearing had triggered some recollections of the incidents eight years earlier. He had not read the statement between 1996 and mid-2003. Doing his best to recall, he did not believe that the plaintiff had made any complaint about the steps prior to the fall, but conceded that it was a possibility that he had done so.

28. Mr Sanford thought that the last time he had used the stairs in the Treasury Building prior to the plaintiff's fall was probably about a month earlier. He did not notice that any of the tiles on the stairs were cracked, broken or missing at that time, but he said he was simply making a delivery and had not been particularly focused on the condition of the stairs.

29. Counsel for the second and third defendants called Mrs Netalina Innaimo to give evidence. Mrs Innaimo was, in March 1995, employed at the Finance cafeteria as a cook. She had been there for fifteen years, and left in December 1995. Her duties included preparing and serving meals and generally looking after the kitchen, including keeping the sinks, stoves, fryers and especially the floor clean. She was directed by the manager that the floor had to be spotless at all times. She was to clean up any spillage immediately and to mop the floor at the end of her working day. She said that there were about five staff employed in the cafeteria. One staff member helped her in the kitchen and the others served at a sandwich bar and attended to customers. They also washed up, in a separate room. Mrs Innaimo agreed that items of food fell to the floor or were spilt from time to time, and she would clean these up as soon as she became aware of them. She said that there were rubber mats in front of the fryers in case of spillages of fat. She had got to know the plaintiff as he made deliveries to the cafeteria. She remembered him mentioning, the day after his fall, that he had fallen on the stairs. Her evidence was that he said "I fell coming up the steps yesterday". She was unable to remember the day of the week or date of the conversation.

30. She used the stairs herself every day, to take rubbish downstairs. She said that she never saw any damaged or loose tiles. She remembered that there was a period when the staff were not allowed to use the stairs because there were workmen there. She did not know what they were doing. She did not particularly notice the state of the stairs. She had first been asked to recall the events of March 1995 in mid-2003. She named two other women who were present at the time of the conversation with the plaintiff the day after his fall. Neither was called, but I should say that I would hardly expect either of them to have a reliable recollection of a conversation eight years earlier.

31. Mr Richard Pankasz gave oral evidence for the second and third defendants. He was employed as a carpenter from 1994 with Asset Services, a Commonwealth instrumentality. He was responsible for general carpentry maintenance in the Treasury and West Block buildings. He identified a copy of a maintenance request dated 4 May 1995, asking him to report on the state of the canteen stairs at the Treasury Building. He recalled the job. His evidence was confirmed by a computer printout which included a description of the work, and a charge for it. This showed that he had attended at the stairs on 4 May, 18 May and 8 August 1995. His first attendance was to check the stairwell to identify what work needed to be done. He formed the view that about eight tiles were broken or chipped and needed to be replaced. He attempted to find matching tiles of the same colour but was unable to do so, and replaced the tiles with non-matching new ones. The new tiles were lighter in colour than the originals and can clearly be seen in the photographs in evidence. The new tiles were on six levels of the steps, not including the landing or the first step down. The highest level at which the replacement tiles can be seen in the photographs is the third step down from the landing level. Mr Pankasz explained that the work had to be done over two days, to allow time for the glue fixing the tiles to the concrete surface to set before the tiles could be grouted. He conceded that it was possible that some of the existing tiles might have been loose but otherwise undamaged, and he might have reglued and regrouted some existing tiles. He also mentioned that he was not the only person at Asset Services with responsibility for maintenance at the Treasury Building at that time. There was also a plumber who did some floor tiling on occasions.

Liability - the expert evidence

32. Dr Neil Adams was qualified on behalf of the plaintiff. He inspected the stairway in November 1995, took a number of photographs and provided a written report. This was supplemented by oral evidence. Dr Adams is a Sydney-based consultant in ergonomic and safety management. He graduated in science with honours in applied psychology in 1963, and his doctorate was conferred in 1973. He has lectured in graduate courses in applied ergonomics and safety management, and has supervised candidates for masters' degrees and doctorates in the field. He has published extensively and has been engaged by many companies and statutory authorities in relation to safety policy and strategies. The photographs forming part of the report make it clear that the eight contrasting tiles fitted by Mr Pankasz were in place by the time of his inspection. The plaintiff attended the inspection. He told Mr Adams that every one of the tiles along the edge or nosing of the landing or top step was broken at the time of the fall. This was not the case at the time of inspection, although Dr Adams appears to have accepted the history. The plaintiff also told him that he recalled that the floor in the kitchen had been greasy. Dr Adams concluded that the plaintiff's boots or shoes may well have retained some of the lubricating material picked up from the kitchen floor as he made his way to the top of the stairs. The plaintiff did not give Dr Adams at that time a history of having found a greasy or fatty substance on the sole of one or both of his shoes when he got home two hours after the fall. If the plaintiff's evidence in that regard was true, I would have expected him to have emphasised it to Dr Adams, rather than simply saying that he remembered the kitchen floor as having being greasy.

33. Dr Adams recorded that the edge of the landing or top step was level and horizontal across its width, but sloped forward from back to front, that is, towards the front edge of the step. He recorded the fluorescent light as being located above the third step from the bottom, there being fourteen steps in all. He measured the distance between the near side of the upper door opening and the edge of the landing as 260 mm. The stairs were all surfaced with tiles with a textured, embossed pattern, presumably intended to provide anti-slip properties. Dr Adams said that because of the relative narrowness and darkness of the stairway, the stairs appeared to be quite steep. However, on measurement, he satisfied himself that they complied with the relevant Australian Standard. He did not measure their slip resistance, because he was told that they were not in the condition they had been in at the time of the fall. He said that it was a matter of common knowledge and experience that tiled floors could be made hazardously slippery by water, oil or grease. The presence of a lubricating substance on the soles of the plaintiff's shoes could well have negated any increased friction endowed by the anti-slip pattern.

34. Dr Adams expressed the opinion that if one accepted that each of the tiles along the edge of the landing or top step was chipped and broken at its front edge, then in conjunction with the slight forward slope which he found, the likelihood of a forward slip would have been increased, particularly if the sole of the shoes had been made slippery by contamination from the kitchen floor. He also expressed the opinion that, entering the dark stairway with the light from the doorway behind, and with the step ahead obscured by his own shadow, the plaintiff would not have had a clear view of the landing or of the steps he was about to descend. Even a quite minor misperception as to the edge of the steps could have resulted in the plaintiff placing his foot slightly further forward on the edge than would be safe. The position of the upper door was such that a person entering the landing to descend the stairway would not have sufficient space to make a full forward pace through the doorway onto the landing before commencing movement down the stairs. The person would have to make a turning movement virtually as the pace through the doorway was completed. The space available for this type of movement was inadequate and likely to result in the leading foot being placed a little further forward than would be optimally safe. It would have been much safer for the door to have been hinged on the side closer to the top of the stairs, and opening outwards from the landing. This would have provided greater movement space for a person entering the small landing at the top of the stairway.

35. Dr Adams explained that the likelihood of a slip was increased in areas of markedly different frictional resistance. A person walking over an area which offered adequate frictional resistance, who stepped onto an area of less than adequate resistance, would be more likely to slip than a person walking on the less than adequate surface throughout. Dr Adams did not measure the coefficient of dynamic friction of the tiles, but accepted that they had been measured (by the defendant's expert) as in the range 0.30 to 0.40. He said he would not have regarded the measurement as having any relevance, having regard to the description he had obtained from the plaintiff of the mechanics of his fall. Dr Adams thought that it would make no substantial difference if it turned out that the plaintiff had lost his footing on the step below the landing step, rather than on the landing step itself. With the fairly tight turn necessary when entering the landing through the door, there would still be a need for recovery of balance and establishment of a safe gait down the stairway.

36. The expert engaged by the third defendant, Dr Johnn Olsen, inspected the stairway in June 1997. Dr Olsen is a consulting engineer and also an occupational physician. He regarded the landing at the top of the stairs as of adequate size, and thought that a person would take at least one step, and more probably two steps, on the landing before encountering the first step. Dr Olsen said that the slip performance of the stairs was variable. The main area of the top landing was tiled with a smoother form of tile with what he considered borderline slip characteristics. The tiles on the edge of the landing and on the treads of the stairs produced better results, though the main purpose of their surface pattern was to improve wet slip characteristics rather than dry.

37. Dr Olsen thought that the natural lighting from the window at the top of the stairs, available when the door was open, was adequate. He regarded the replaced broken tiles as irrelevant because, according to the history he had been given, they were nowhere near the position at which the plaintiff fell. He thought it irrelevant that the fluorescent lights may not have been working, as these cast no direct lighting on the landing or top step, which was in any event adequately lit during the day by natural light through the open doorway.

38. Mr Olsen's conclusion in summary was that he found no defect in the stairs which might have been responsible for, or contributed to, a risk or hazard which eventuated and caused injury to the plaintiff. The relevant portion of the staircase, being the landing and first step down, were in his opinion safe.

Injuries - the plaintiff's evidence

39. The plaintiff recalled that the fall happened on a Friday (as previously mentioned, 24 March 1995 was a Friday). He was next due to work on the following Monday. He did not carry out any further deliveries after the fall. He went back to the depot and his wife came and collected him, and drove him home. He spent the weekend resting. By Monday, he was still a bit sore but went to work. He worked on the Monday, Tuesday and Wednesday, putting up with a lot of discomfort, but by that time he could not put up with it any further and decided to see a doctor. His general practitioner was Dr Bills of Queanbeyan. Dr Bills was unavailable and the plaintiff was seen by Dr Weekes, another doctor in the practice. The plaintiff was suffering from pain in the lower back and the right elbow. On Wednesday 29 March 1995, Dr Weekes gave him a certificate for time off work and prescribed painkillers and anti-inflammatories. She referred the plaintiff for x-rays and later for physiotherapy. He attended at the Queanbeyan Physiotherapy Centre on fourteen occasions. He relied on his father to take him to the centre and home again. A month after the accident he was referred for a CT scan. On 10 May 1995, Dr Weekes certified the plaintiff as capable of returning to light duties, with lifting limited to 10 kilograms, no repeated bending or stooping, and the opportunity to move around as required.

40. On a date at about that time which the plaintiff was unable to recall, he had a telephone call from Mr Sanford, who told him that he had spoken to his doctor and that he had been cleared to return to work. The plaintiff went back to work the next day but lasted only an hour. He bent over to pick something up and was unable to straighten up, and he left work.

41. Dr Bills referred the plaintiff to Dr RLG Newcombe, neurosurgeon, who saw the plaintiff in June. Dr Newcombe advised surgery in the form of a discectomy at the L5-S1 level, which he carried out in early July 1995. Prior to the surgery the plaintiff said that he was in a lot of pain and unable to straighten up or walk around normally. After his discharge following the operation, he was still in significant pain in the low back, and felt if anything worse. He was unable to do anything to look after himself, and relied on his wife and his mother to change his dressing, to help him to the bathroom, and to attend generally to his needs. His father continued to drive him to medical appointments as required. Two days after the operation, the wound opened and the plaintiff was taken to Woden Valley Hospital where it was restitched. After this, he had a tingling sensation in his left leg. He was referred to an orthopaedic surgeon, Dr ID Farey in Sydney, who advised against further surgery. However, the plaintiff continued to suffer from what he described as unbearable pain in the lower back, and in August 1996 underwent further surgery performed by Dr Newcombe in the form of a further discectomy followed by posterior lumbar interbody fusion employing titanium fusion cages. For some four to six weeks after this operation, he was unable to do much for himself and was looked after as previously by his wife and his mother. The pain was still present but was reduced. He was referred to Dr David McGrath, a rehabilitation consultant, who set him an exercise programme. He still had pain and was unable to bend easily, or lift heavy weights.

42. In February 1996, Dr Bills referred the plaintiff to Dr Robert Tym, psychiatrist, who suspected that he suffered from a condition identified in both his son and daughter, described as hyperkinetic disorder with disturbance of activity and attention, commonly known as attention deficit disorder. It is not suggested that this condition is related to his fall. Dr Tym prescribed medication in the form of dexamphetamines. The plaintiff became addicted to these, and in due course turned to illegal drugs, including another form of amphetamine colloquially known as ice or speed. He said that taking these drugs relieved his pain but ruined his life. His employment with GK Sanford Pty Limited was formally terminated in late 1995, and as previously mentioned, the company ceased to operate in 1996. The plaintiff had few job skills and had only ever done labouring work such as furniture removal and night loading. Both of these involved heavy lifting. The plaintiff has not been in employment since. He has remained on workers' compensation. His literacy skills are poor.

43. He said that in October 2001 he attempted suicide in Sydney, intending to throw himself in front of a train. The police were called and he was taken to the Cumberland Hayes Unit at Parramatta, a psychiatric unit where he spent a week. When he returned to Canberra, Dr Bills prescribed antidepressants. The plaintiff said that since that incident, his pain levels had varied. They were affected by changes in the weather. He was not constantly in pain. Sometimes one leg would give way whilst he was walking.

44. In January 2003 he was a passenger in a motor vehicle involved in a collision, and aggravated his back injury. Since then his pain levels have been stable. In February 2003 he said that he had been admitted to Oolong House, a rehabilitation centre at Nowra, with a view to treating his drug dependence. His admission followed a prosecution for burglary and he spent four months at the centre. He said that it had been successful and he was free of drugs by the time of the hearing, his only medication being an antidepressant. Prior to his treatment at the centre, he had been drinking, getting into trouble and feeling that there was no hope for him. He had contemplated suicide and attempted it on two or three occasions.

45. The plaintiff was taken in cross-examination to a Canberra Hospital Emergency Department record timed at 11.09 pm on 24 November 1996, indicating that he had presented with an injury to the left forearm. The history recorded was that he had fallen off a bar stool. At 12.50am he left the Emergency Department saying that he was checking something in his car. He did not return. The entry does not include any reference to intoxication. The plaintiff's evidence was that he had no recollection of the incident, though he was not saying that it had not happened. He agreed that such a fall could have affected his back.

The medical evidence

46. There were a large number of medical reports in evidence. None of their authors was called except for Dr Olsen, and his oral evidence was limited to his report as an engineer; he was not examined or cross-examined about his medical report.

47. Dr Newcombe recorded a history that in 1981 the plaintiff had had a neck fusion operation following a whiplash injury. He must have been about nineteen at the time and had later played first grade Rugby League. There is no evidence that he had any symptoms or disabilities related to that injury which might have been relevant to the present claim. Dr Newcombe confirmed that, reliant on the history and on CT findings of a large disc protrusion at L5-S1, he performed a microsurgical discectomy on 7 July 1995. He arranged post-operative exercises and physiotherapy, and referred the plaintiff to Dr John Corry for vocational rehabilitation in October 1995. The plaintiff did not improve, and in March 1996 was referred by Dr Bills for a further CT of the lumbar spine, which showed recurrent L5-S1 disc herniation. Dr Newcombe recommended a further operation, which he carried out on 22 August 1996 as previously mentioned. This improved the plaintiff's range of movement and level of pain, although he had some continuing low back pain on bending forward and when doing exercises. Dr Newcombe expected that this would settle gradually with assistance from Dr McGrath, rehabilitation consultant. He thought that it was unlikely that it would ever be feasible for the plaintiff to return to work as a truck driver in any capacity. He should avoid bending and heavy lifting. He might get back to some social golf and ten-pin bowling but his expressed interest in coaching and refereeing rugby league and basketball was unrealistic. Dr Newcombe thought it possible that the plaintiff might one day require surgery at the L4-5 level. In his view the plaintiff had permanent impairment of low back function of the order of 15 percent of an extreme case.

48. Dr Ian Farey, mentioned above, saw the plaintiff on only one occasion, in August 1995, apparently for the purpose of a second opinion about the proposed second operation. Dr Farey did not favour further surgery, which he thought might exacerbate the plaintiff's symptoms. He thought that the plaintiff had a poor prognosis following his first operation. The second operation has been carried out and seems to have resulted in some improvement: Dr Farey's opinion has thus been overtaken by events.

49. The plaintiff was referred by Dr Bills in May 1998 to Dr Nicholas Little, a neurosurgeon in Sydney. His impression was that the plaintiff had significant ongoing mechanical low back pain and many features of a chronic pain syndrome. He thought that he should continue his rehabilitation programme with Dr McGrath. He could see no place for further surgery. He thought it unlikely that the plaintiff would ever return to a job involving truck driving, heavy lifting or repetitive bending, though he ought to be able to cope with a semi-sedentary occupation. The plaintiff was theoretically susceptible to early degeneration of the levels adjacent to the fusion, but the extent and likelihood of degeneration were speculative.

50. Dr Bills, expressed the view in 2002 that the plaintiff's age, education, aboriginality and record of trouble with the law would combine when taken with his injury to make him effectively unemployable. On its own the injury would be likely to prevent his obtaining any work for which he was reasonably qualified by training or experience. Dr Bills thought that the plaintiff's condition would not improve and was more likely to deteriorate gradually over time. I have the impression from reading Dr Bills's reports that he was generally accepting of and sympathetic to the plaintiff.

51. Dr Olsen saw the plaintiff on 5 June 1997, on the same day that he inspected the staircase. Interestingly, he reported that the plaintiff had an incomplete recollection of the exact circumstances of the fall: he was not certain whether it was a trip or a slip, or even of the feel of the stairs in relation to slipperiness. He knew only that he fell down the stairs from the top to the bottom.

52. Dr Olsen's examination of the plaintiff took place less than a year after the second operation. The plaintiff told him that the operation had not been successful and that he remained affected by his back pain. He said that he did not drive a car because of the medication he was on, being eight Panadeine Forte and three Valium tablets a day. Dr Olsen conducted a physical examination, and formed the view that the plaintiff was severely exaggerating his symptoms. He carried out a particular movement to which the plaintiff reacted with a loud exclamation and swearing. Dr Olsen said that the reaction was consistent only with a deliberate misreporting of the symptoms. At the same time, he said that the setting was very complex, and that the mere finding of exaggeration and a degree of fabrication did not rule out underlying impairment. He thought that the plaintiff could be improved considerably with counselling, cessation of medication and an exercise programme, but he thought that the prognosis was dependent to a substantial degree on the plaintiff's motivation.

53. Dr Robert Cameron, consultant surgeon, saw the plaintiff for the first defendant in March 1998. In his opinion the plaintiff had physically recovered from appropriate low back surgery, and his continuing symptoms could not be organically explained. He thought than an exercise programme including walking and swimming would be beneficial, but that rehabilitation was unlikely to be successful due to attitudinal factors. The plaintiff was unfit for work requiring heavy lifting or prolonged bending or stooping, and was thus unfit to work as a delivery driver, but was fit for a wide variety of other employment within his physical limitations.

54. Dr JH Silver, consultant occupation physician, saw the plaintiff on two occasions, in July and August 1999. At the first appointment he asked the plaintiff about his spare-time activities. Dr Silver asked why he did not drive. The plaintiff said that he had not renewed his licence. Dr Silver thought this surprising for a former professional driver and father of young children, and asked the plaintiff if he had lost his licence. The plaintiff replied that that was personal and he was not going to answer questions about it. He terminated the consultation without warning and left. Dr Silver noted that whilst he had limped into the consulting room, favouring his left leg, he moved freely as he got up and left the room.

55. Arrangements were made for the assessment to be completed a month later. Dr Silver was careful not to enquire further into the plaintiff's reasons for not driving. He did ask when he expected to return to driving, and the answer was "not for a while". Dr Silver assumed from this that the plaintiff would be unavailable for employment in any capacity involving driving in the foreseeable future. Following physical examination, Dr Silver formed the view that there was a degree of exaggeration of symptoms. He accepted that the plaintiff had a vulnerable back and was permanently unfit for heavy physical work. He was, however, not totally incapacitated and was fit for a wide range of semi-sedentary activities.

56. Dr Brian Zeman, a consultant in rehabilitation medicine, saw the plaintiff twice, in March 1998 and April 2003. Following the first assessment, Dr Zeman thought that the plaintiff displayed abnormal illness behaviour, likely to be related to a pre-existing learning disorder and to unrelated social problems following the accident. He agreed that the plaintiff was unfit for heavy manual work but thought that he was fit for light to moderate physical work. He thought that further attempts at rehabilitation might be helpful, using a multi-disciplinary approach and pain management techniques. He acknowledged that vocational retraining might not be practical in view of the plaintiff's learning difficulties.

57. In April 2003, the plaintiff was more candid in his history, telling Dr Zeman that he was attending a drug rehabilitation programme at Nowra and was off drugs and alcohol. He denied any drug or alcohol problems prior to his 1995 fall. He said that his wife had cancer and was unlikely to live more than three or four years, and that two of his children were heroin addicts. He said he had lost his licence two years earlier for non-payment of fines, admitting on further questioning that he had been caught driving without a licence. Dr Zeman recorded some inconsistencies on physical examination, indicating some exaggeration which may have been subconscious. He thought that the plaintiff's pain depended on factors unrelated to the degree of underlying organic pathology. Following his spinal fusion, he would have a slight restriction of low back movement permanently, perhaps accompanied by some intermittent pain, but not the level of pain of which he complained. From a physical point of view he was medically fit to drive, and could work as a delivery driver as long as no heavy lifting was involved. It was by then eight years since the fall, and the plaintiff had been out of work and reliant on workers' compensation for that period, limiting the likelihood that he could be assisted back into the workforce.

58. The plaintiff gave oral evidence that he had seen a number of doctors at the request of the defendants or their insurers, including, in addition to those I have previously referred to, Dr Anthony Cairns, orthopaedic surgeon, in May 1995; Dr Brian Andrea, general surgeon, in July 1996; Dr Van Der Rijt, in March 1998; and Dr Nadana Chandran, neurosurgeon, in January 1997. I draw the available inference that the evidence of these practitioners would not have assisted the case of the defendants in relation to quantum of damages.

The plaintiff's police and traffic record

59. Counsel for the plaintiff stated in opening the plaintiff's case that the plaintiff was part aboriginal and came from a deprived background, having being first committed to an institution at the age of seven. By the time of the hearing, he had served some twelve sentences of imprisonment. Counsel tendered an Australian Federal Police printout setting out the plaintiff's police and court record up to 30 October 2003.

60. Prior to the age of eighteen, the plaintiff had Childrens Court convictions in New South Wales for breaking, entering and stealing; malicious injury; stealing motor vehicles; indecent assault; driving under the influence; and resisting arrest. He had been committed to an institution on a number of occasions. After he turned eighteen, the pattern continued. During his twenties, he was convicted in New South Wales on a number of occasions of offences including breaking, entering and stealing; larceny of a motor vehicle; driving whilst disqualified; assaulting police; escaping from custody; driving with the prescribed concentration of alcohol; assault and malicious injury; maliciously inflicting grievous bodily harm; and burglary. From 1986, he began to accumulate convictions in the courts of the Australian Capital Territory. The majority of these convictions related to traffic matters. His last offences prior to his fall were an assault occasioning actual bodily harm on 3 April 1994, and drink-driving whilst unlicensed on 21 August 1994. It appears that the plaintiff had not served a term of imprisonment prior to the fall since 1987, though he had been ordered to perform community service work, and had had suspended prison sentences imposed upon him, as well as numerous fines and driving disqualifications.

61. After the fall, it was not long before the plaintiff again came to police notice. In October 1996 he was ordered to perform seventy-five hours community service for driving while disqualified. Over the ensuing months he was convicted and fined for offensive language and conduct, and assaulting and resisting police. In 1998, he was again convicted of driving while disqualified and sentenced to a further seventy-five hours of community service. On the same date he was convicted of contravening a domestic violence order, and of possessing and administering a prohibited drug. In November 1998, following a conviction for assaulting an officer in the execution of his duty, as well as a number of counts of driving an uninsured and unregistered vehicle while disqualified, he was sentenced to six months imprisonment, reduced on appeal to four months, and it appears that he served this term from late 1999.

62. Further convictions followed in 2000 and 2001, including driving while disqualified, resisting arrest and assaulting police. In April 2001, he was convicted of making and attempting to use a false instrument, and he faced a number of similar charges later in the same year, and during 2002. In that year, further suspended imprisonment sentences were imposed upon him. During 2003 he was convicted of stalking and intimidating with intent to cause physical and mental harm. On 11 August 2003 he was convicted of further offences of possessing stolen property and driving whilst disqualified, and a further suspended prison sentence was imposed. He was prohibited from holding or applying for a driver's licence until further order of the ACT Magistrates Court.

63. The plaintiff was extensively cross-examined about his criminal record. He sought to blame his violent past on alcohol. He said that he had attempted to give up drinking from time to time over the years, generally for fairly short periods. He had tried to give up drinking during 1994-1995 because he had a regular job with Cusacks and later GK Sanford, and he wanted to support his family. He conceded that he had never had a good memory, and that his memory about dates and periods was unreliable. He agreed that he had been convicted of defrauding the Commonwealth in relation to Centrelink payments during the period of his employment with GK Sanford, and that he had obtained benefits to which he was not entitled of the order of $8,000.00, which he was paying back at $140.00 per month out of his workers' compensation. He attempted in his answers to give the impression that he was not personally involved in the commission of this offence, which he sought to blame on his wife. He agreed that he had pleaded guilty to the offence, and that he had been ordered to pay the money back.

64. He also agreed that on numerous occasions he had driven a motor vehicle whilst his licence was suspended or cancelled, and that on at least one occasion he had driven a car which he had known at the time to be stolen. He admitted to prosecutions for a number of offences of exceeding the speed limit, in some cases at dangerously high speeds. He generally attempted, during the course of cross-examination, to justify his unlawful behaviour, often on patently spurious grounds, rather than accept responsibility for it.

65. He agreed that in April 2001, he had been convicted in Sydney of offences of dishonesty. He had won $3,700.00 on a poker machine in a hotel at Liverpool. He received $1,000.00 in cash, and a cheque for $2,700.00. The amount of the cheque was altered to $8,700.00, and the plaintiff used a falsified birth certificate in an assumed name, in an attempt to open a bank account into which to pay the cheque. In October 2001, he committed a further almost identical offence, using a false birth certificate to open a bank account. He refused to offer any explanation to the Court, saying that the matter had already been before a court and was "not for publication". He committed a similar offence in Queanbeyan in June 2002, attempting to obtain $2,000.00 from an AGC branch. In December 2003, he pleaded guilty to possession of stolen property. His explanation before me was that he had bought a camera from someone he knew well, which he did not know was stolen, and which he had attempted to sell to Cash Converters.

66. In summary, the plaintiff has a lengthy record of convictions for serious offences. They include offences against the person, property offences and traffic offences. The offences against property involve dishonesty. Many of the traffic offences suggest a refusal to be bound by the ordinary rules of society, and a refusal to accept court orders. I am left with no alternative but to find the plaintiff a man of poor character and reputation. I would be imprudent to rely on his uncorroborated evidence, especially as to matters affecting his own interests.

The events of August 2003

67. The plaintiff's action was listed for hearing before Justice Connolly on 4 August 2003, and the hearing commenced on that date. The transcript of the hearing was not in evidence before me, but the plaintiff was cross-examined at some length about the events of the days immediately before and after 4 August. The plaintiff agreed that he gave evidence in chief for most of the morning of the first day, by which time, he said, he was so badly affected by flu that he was unable to continue giving evidence. He said that he went to see Dr Bills at Queanbeyan on that afternoon, and again the following day, and that Dr Bills sent him home but offered him no other treatment. It was put to the plaintiff that there was no record in Dr Bills's clinical notes of any attendance on 4 August. The plaintiff insisted that he had attended the surgery on that day, having travelled to Queanbeyan by bus. The plaintiff agreed that he returned to court on the following morning, 5 August, and gave some evidence. It was put to him that on the morning of 5 August, he gave evidence that his ex-wife and four male colleagues had appeared at his daughter's house, pulled guns and demanded money.

68. In his evidence before me, he said that his ex-wife and her associates had demanded money from him in similar circumstances some three or four times. The first occasion was prior to the hearing on 4 August, another was on the evening of Monday 4 August, and another was on the following Sunday. The plaintiff said that he had told them he would try to arrange payment of the money, the amount of which did not emerge from his evidence, but according to a statement by his daughter (see below) was $21,000.00, and he asked them to come back. They gave him seven days but came back five days later. He said that his daughter Ayshia, the tenant of the government flat where the incident took place, telephoned the police, or at least that she told him that she had done so. It was put to the plaintiff that the first report to the police of the incident occurred at 10.27 am on Tuesday 5 August, after the plaintiff had given evidence about it. The plaintiff agreed that he had gone to the police station at about that time, but did not accept that it was the first report, or that he had attended the police station for that purpose. His explanation was that he had attended the police station at the request of his lawyers to obtain the names of the police officers concerned.

69. Mr Crowe of Senior Counsel for the second and third defendants put it to the plaintiff that he was desperate on 5 August to have the action adjourned because he did not wish to have his claim decided by Connolly J, and that to achieve his purpose, he gave untruthful evidence. The plaintiff angrily denied this proposition. He said that he knew that there was no police record of any call from his daughter on the evening of Monday 4 August, or any other complaint about the matter on that date. He said that he had obtained a statement from his daughter, who was unavailable to give evidence, being at a rehabilitation facility in Sydney pursuant to an order of the Queanbeyan Court. The plaintiff agreed that on the morning of 5 August he was in such a bad condition, both emotionally and as a result of his illness, that he was simply unable to continue to give evidence. He instructed his solicitors to apply for an adjournment, which was granted.

70. He was asked what he did after leaving the court. He said that he went to the police station, and then caught the bus to Queanbeyan, which involved a wait of up to an hour. He saw Dr Bills who prescribed Valium. He. He denied being involved in an altercation at the Canberra bus interchange. He agreed that he could not run, a little later saying that he did not know whether or not he was capable of running, but that he had not attempted it.

71. The plaintiff was then shown a recorded videotape, taken on the morning of Tuesday 5 August after the hearing was adjourned. The tape showed the plaintiff walking from the Court to the police station, and later meeting a group of people in whose company he walked to the bus interchange in East Row. The plaintiff at one point was shown running across the road. He said that his intention was to stop his daughter from becoming involved in an altercation, and that he had forgotten this incident until he saw the film. He and his companions, who apparently included his daughter and his girlfriend, were seen to engage in a conversation with police officers. They were then shown walking as a group north along Mort Street and across Haig Park to Northbourne Flats in Henty Street, Braddon, a distance of perhaps a kilometre. On reaching the flats, the plaintiff was seen to climb a railing without difficulty.

72. The plaintiff was next asked about an incident on the early morning of 11 August 2003, the Monday following the adjournment of the hearing. He agreed that he was the driver of a borrowed Daihatsu Applause car, which he later found out was unregistered and uninsured. A passenger in the vehicle was Mr Atkins or Atkinson, his ex-wife's boyfriend, who, according to his earlier evidence, had threatened him on a number of occasions with a pistol. He agreed that he was driving the vehicle in breach of a bail condition that he not drive a motor vehicle. Asked to explain why he was driving Mr Atkins or Atkinson around Canberra on that occasion, he said:

Yes. Well, it's still going before the court and there is in my record of interview and it has been verified, I was in the car at a - with a gun pointed at me to go and collect money and get him the ice, and then the next day he was arrested.

The plaintiff agreed that there were a number of charges pending against him at the time he gave his evidence.

73. He was asked some further questions about the January 2003 motor vehicle collision in which he had been involved as a passenger, and had earlier said that he had aggravated his back injury. He agreed that he had also suffered lacerations to the palm of his left hand when he fell on gravel getting out of the car. He agreed that the police had estimated the speed of the vehicle, which they had been chasing, at 190 kilometres per hour, and that the vehicle had left the road and struck two trees, pulling up adjacent to a house.

74. Over objection, I allowed into evidence a handwritten statement by the plaintiff's daughter, Ayshia, dated 25 November 2003. The plaintiff's evidence was that his daughter had been charged some three weeks earlier with aggravated robbery in Queanbeyan Local Court and had been granted bail on condition that she voluntarily admit herself to the Sydney Rehabilitation Centre for twelve months. The rehabilitation, I accept, relates to her heroin addiction. I accepted that in the circumstances it might be possible to arrange for her to be served with a subpoena and brought to court, but that there were likely to be difficulties with such a course, as well as delay and expense.

75. The statement, omitting an expression of opinion which I excluded, read as follows:

I, Ayshia Williams of Block S Flat 2 Northbourne Flats, Turner ACT swear the following is true.

I live at this address with my partner, my daughter and my father (Geoff Williams) and his partner. On Monday evening, August 4 2003, the four of us were at home with my daughter when between 9 pm and 10 pm my partner answered the door. My mother came in with her boyfriend who I now know to be Jason Atkinson. They demanded that my dad pay $21,000.00 plus half an ounce of the drug "ice" to them within seven days. I clearly saw that Jason had a handgun with which he was threatening my dad. Dad said they should go outside and discuss it... When they went outside I immediately phoned the police as I was very concerned for my dad's safety. I told the police on the phone what had just happened and also said this wasn't the first time such an occurrence had happened. Police had been there to my home for a similar reason not that many days earlier - July 30^th I think.

Yours sincerely

Ayshia L Williams.

76. I acknowledged that had Ms Williams been called to give evidence, counsel for the defendants would have sought to cross-examine her with some vigour. I also noted that the statement would be subject to the comment that a daughter may well be tempted to use words calculated to assist her father. It must be said that the defendants were deprived of the opportunity of cross-examining Ms Williams, which meant that I had no opportunity of assessing her credibility as a witness. It would be unfair to the defendants for me to accord significant weight to the statement, taking account of the fact that the plaintiff's representatives did not give notice of its contents to the solicitors for the defendants as should have been done under s 67 of the Evidence Act 1995, and that the plaintiff's solicitors did not arrange to bring the plaintiff's daughter to the Court to give evidence, or call any persuasive evidence as to why that might have been impractical or impossible.

77. Whilst I did not have the benefit of the transcript of the proceedings before Connolly J on the first day of the hearing, 4 August 2003, counsel for the second and third defendants tendered without objection the transcript of the proceedings on the following morning, which occupied about ten minutes. The tender was limited to the evidence in chief of the plaintiff, and counsel's intention was to ground a submission that the plaintiff's evidence on that morning was inconsistent with the film taken later on the same morning, and with the plaintiff's oral evidence before me that he was aware on 5 August that the police had no record of a complaint about the events of the night before. The plaintiff was referred to an indication he had given after lunch on 4 August that he felt unwell and was unable to proceed. He said that he had had flu which he had been trying to fight for the past week. He then gave evidence that his ex-wife and four male colleagues had appeared at his daughter's house on the evening of 4 August and had "pulled guns on us demanding money". He said that the matter was reported to the police, and that it was part of a pattern of conduct over the last three weeks. He said that the pattern was that his ex-wife would send him a text message by telephone demanding money and making death threats, after which she and her companions would turn up at the house threatening his daughter and girlfriend. Asked whether he felt that he could adequately answer questions in the proceedings, he said that he could not and was too emotional. Connolly J at that point indicated that he had grave concerns about the fairness of the trial proceeding. His Honour's expectation was that defence counsel would wish to cross-examine the plaintiff with proper forensic vigour, as was their entitlement. His Honour said that the plaintiff had to be fit to face such cross-examination, and that it would be unfair for the Court to take any steps to constrain cross-examination. Counsel for the plaintiff then applied for an adjournment. His Honour expressed the view that it would be prudent for the plaintiff to see his general practitioner promptly and he expressed the view to counsel for the plaintiff that it might be prudent to obtain written conformation from the police about the incident the night before. His Honour granted the adjournment and gave leave to the parties to approach the list clerk to obtain a fresh hearing date. The costs of the adjournment, including the costs thrown away, were reserved. It is clear that his Honour regarded himself as part heard in the matter and expected that the further hearing of the matter would be before him.

78. I was informed at the commencement of the hearing before me on 1 December that his Honour had disqualified himself from hearing the matter further, I understand because his Honour between August and December 2003 sentenced the plaintiff's ex-wife to a term of imprisonment. I understand that this was a decision taken by his Honour on his own initiative rather than by reason of an application made by any of the parties, though I note the plaintiff's agreement in cross-examination that he instructed his lawyers to ask Connolly J to disqualify himself and that he did not want the case to go ahead in front of his Honour. The plaintiff's agreement with this proposition appeared to relate to the proceedings on 5 August 2003, before his Honour had sentenced the plaintiff's ex-wife. There was no explanation as to why the plaintiff did not want the case to be decided by Connolly J and preferred to have it determined by another judicial officer.

79. Dr Zeman, who had seen the plaintiff in 1998 and in April 2003, and had reported to the Australian Government Solicitor, was given an opportunity to watch the video of the plaintiff's activities of 5 August 2003. He noted that the plaintiff was shown predominantly walking and standing, but that he was also seen to run swiftly across a road, walk long distances, jump up a small wall, climb twenty-four steps, and use his upper body in various activities. He was seen to bend down briefly on one occasion. He did not display any limp or sign of pain or discomfort. The video revealed a greater range of activity and movement than the plaintiff had engaged in during his assessment, and Dr Zeman thought that this could indicate exaggeration. He concluded that the plaintiff had less limitation than he had previously thought, and that he was physically capable of light to moderate work.

Findings in relation to liability

80. Much of what is asserted on the plaintiff's behalf in the statement of claim, as amended to the time of trial, is non-contentious. There is no issue that the plaintiff was employed as a delivery driver by GK Sanford Pty Limited at the time of his fall, and that the first defendant has inherited its liabilities for the purposes of the action. There is no issue that the second defendant was the occupier of the Finance cafeteria, or that the third defendant was the occupier of the staircase. I accept that the plaintiff's fall probably happened on Friday 24 March 1995. I accept that he made a delivery to the Finance cafeteria, and that he walked up the staircase, carrying the two delivery items. I accept that after making the delivery, he re-entered the staircase, lost his footing and fell down the stairs.

81. Particulars of the negligence alleged against the third defendant are set out in the amended statement of claim as follows:

(a) failing to ensure that the stairs were safe and free from defects;

(b) failing to ensure that broken tiles on the stairs were repaired within a reasonable time;

(c) failing to warn by sign or otherwise that the stairs had broken tiles on them and/or were unsafe;

(d) failing to take any or any adequate steps to ensure that the floor of the kitchen was clean and free from greasy or slippery liquid or substances;

(e) failing to itself warn or in turn require the second defendant to warn of the danger of greasy or slippery liquids or substances on the floor of its kitchen;

(f) failing to ensure that the stairs were adequately lit;

(g) failing to provide a warning that the stairs were not adequately lit;

(h) failing to require, institute, enforce and maintain a proper system of cleaning the floor of the premises.

The premises referred to are those of the cafeteria, not the staircase itself: there is no allegation that the stairs were not clean.

82. The negligence alleged against the second defendant is:

(a) failing to keep the floor of the kitchen clean and free from grease and slippery liquids or substances;

(b) failing to warn of the danger of the floor being greasy or slippery.

83. The action was commenced in March 1996. I have already mentioned that when Dr Adams was qualified as an expert in ergonomic and safety management, and conducted his inspection of the stairway in November 1995, he was not given a history that the plaintiff had found a greasy or fatty substance on the sole of one or both of his shoes when he got home two hours after the fall. The plaintiff was present at the inspection. Had the plaintiff recalled that there was a fatty or greasy substance on the sole of one or both of his shoes two hours after the fall, it would be quite extraordinary if he had not instructed his solicitors to that effect. Had they had such instructions, it would be extraordinary if they had not provided that information as part of the history to Dr Adams. It would be almost equally surprising if the plaintiff had not mentioned the matter to Dr Adams during the course of the inspection, during which time Dr Adams recorded that the plaintiff did tell him that he recalled that the kitchen floor in the cafeteria had been greasy.

84. It also seems to me significant that the assertion about a slippery or greasy substance on one or both of the plaintiff's shoes soles was never put to the second defendant or anyone on its behalf prior to or relatively soon after the commencement of proceedings. There was no reference to any greasy or fatty substance on the plaintiff's shoes in the workers compensation claim form, completed by the plaintiff or by someone on his behalf, and signed by him, on 10 April 1995. There is no mention of a greasy or fatty substance on the soles in any of the early medical reports, and I infer that the plaintiff did not mention this to Dr Weekes when he saw her at Dr Bills's surgery five days after the fall. There is some conflict as to whether the plaintiff carried out any further deliveries after the fall before he went home. Mr Sanford recalled that he did, but his recollection may not be entirely reliable. The plaintiff was adamant that he did not, but he concedes that his memory is poor and he cannot in any event be accepted as a credible witness, particularly where his own interests are affected. It seems to me not unlikely that the plaintiff's recollection about the fatty or greasy substance on the sole of his shoes was a reconstruction well after the event. I am left far from satisfied that there was a greasy or fatty substance under either or both of the plaintiff's shoes when he took them off at home some two hours after the fall.

85. The plaintiff gave a history to Dr Adams that the floor of the kitchen in the cafeteria was greasy, but he did not give oral evidence to this effect, and it is inconsistent with the evidence of Mrs Innaimo, the cook at the cafeteria at the relevant time. I am not satisfied that the floor of the cafeteria kitchen on the day of the fall was slippery or greasy. I am equally unsatisfied that the soles of the plaintiff's shoes were greasy or slippery at the time of his fall.

86. It follows that the plaintiff has failed to make out his case against the second defendant. It also follows that the plaintiff must fail against the third defendant in relation to those particulars of negligence which rely on the cafeteria floor having being greasy or slippery.

87. There remains the plaintiff's claim against the third defendant based upon the condition of the stairs and the lighting of the staircase. Mrs Innaimo, the cafeteria cook, gave evidence that she had worked at the cafeteria for fifteen years before the plaintiff's fall. She used the stairs every day, and saw no damaged or loose tiles. Whilst she was not asked to recollect the events of March 1995 until mid-2003, so that her evidence could not be expected to be reliable as to every detail, I accept that she at no time had any reason to regard the stairs as unsafe or posing any particular hazard.

88. I accept the evidence of Mr Pankasz, the Asset Services carpenter, who replaced some tiles on the staircase between May and August 1995. I had the benefit of photographs taken by Dr Adams in November 1995 and by Dr Olsen in June 1997, from which the eight tiles replaced by Mr Pankasz are clearly identifiable: the highest level with replacement tiles is the third step down from the landing. Mr Pankasz acknowledged that it was possible that when he inspected the staircase in May 1995, he had identified one or more loose but otherwise undamaged existing tiles, and that if he had, he might have reglued and regrouted them. His evidence was that the eight tiles which were replaced required replacement because they were broken or chipped. It seems to me more likely than not that the eight new tiles were the only ones which were reglued. It is inherently unlikely that any tile on the landing or first or second step was on 24 March 1995 otherwise undamaged but so loose as to have contributed to the plaintiff's fall. The plaintiff's own evidence was that the tiles at the top levels were chipped along their edges, not that any of them was loose.

89. In the circumstances it seems to me that the recollection of the plaintiff, of which he gave evidence, that the edges of the landing step and the next step down were chipped along their edges was, if genuine, an inaccurate one, perhaps based on reconstruction. I am satisfied that the tiles on the landing and the next step down were on 24 March 1995 in the same condition as that shown on the photographs in evidence: that is to say, I am satisfied that the tiles on those two steps were in good condition. I am equally satisfied that any broken or damaged tiles on the staircase played no part in the plaintiff losing his footing.

90. The particulars of negligence alleged against the third defendant include failing to ensure that the stairs were adequately lit, and failing to provide a warning that the lighting was inadequate. Considered in the abstract, there is an argument available that the lighting was inadequate, even when the fluorescent tubes were illuminated. As I have said, the staircase had spring-closure doors at top and bottom, and the only artificial lighting consisted of the two fluorescent tubes above the step third from the bottom, there being fourteen steps on the staircase. The evidence does not enable me to make a finding as to whether those fluorescent tubes would have cast any direct light on the landing: it seems possible that they may not have. However, this issue seems of little relevance having regard to the circumstances of the plaintiff's fall. The fall occurred during daylight hours. The plaintiff entered the staircase through the upper door. As he opened the door, natural light would have been cast onto the landing, although his body might have created some shadow. Despite his evidence that the fluorescent lights were not working, the plaintiff had ascended the stairs on arrival without incident or complaint, in circumstances where the upper door must have been closed until he reached the landing and opened it. He must be taken to have been aware of the state of the lighting of the staircase when he returned to it to descend, having used it himself only a short time earlier. He had used the staircase in both directions on many occasions, every day or two, over a period of months prior to the fall.

91. Other people used the staircase: for example, Mrs Innaimo; though it was probably not a staircase subject to a great deal of traffic. Nevertheless, there is no evidence that anyone else had ever lost their footing or fallen on it, and no evidence of any complaints to the third defendant about its condition or about the quality of the lighting.

92. In the circumstances I am not satisfied that the plaintiff's allegations of negligence against the third defendant are made out.

93. The plaintiff must also fail against the first defendant. The particulars of negligence alleged against his employer are:

a) failing to take any or any adequate precautions to ensure that the premises the plaintiff was required to visit in the course of his employment were safe;

b) failing to warn the plaintiff of the state of the premises.

It is unnecessary for me to deal in any detail with the obligation of an employer in respect of premises an employee is required to visit in the course of his employment. It is sufficient to say that in the light of my finding that the plaintiff's injuries were not caused by any defect in the staircase, the plaintiff has not established any causal connection between the alleged failures on the part of the employer and his fall.

94. Although it is unnecessary for me to make any positive finding as to the causes of the plaintiff's fall, it seems to me that the plaintiff probably lost his footing, either on the landing step or the next step down, as a result of momentary inadvertence. He displayed a tendency towards self-justification, even in relation to criminal offences which on any objective analysis could not be seen as other than his own responsibility. It is probably human nature to seek to find some cause other than one's own inattention for an incident such as the plaintiff's fall, the more so for a person with such a personality characteristic. I am entirely satisfied that the plaintiff suffered a genuine fall in the course of his employment. I think that it is important to add, lest any inference be drawn against the plaintiff in the light of his criminal record if I am silent about it, that I do not view this as in any sense a fraudulent claim. The plaintiff has simply failed to establish negligence on the part of the defendants.

Provisional assessment of damages

95. It may be that an appellate court will decide that I have fallen into error in my factual findings and conclusions in relation to negligence. In the circumstances it is desirable that I should proceed to assess the damages which I would have awarded had the plaintiff succeeded.

96. Firstly, I should say that there is no evidence that the plaintiff's 1981 injuries, which were followed by a neck fusion operation, left him with any disabilities, or that the aftermath of those injuries should result in any reduction in the damages which would be assessable had those injuries not been suffered at all.

97. Secondly, I accept that the plaintiff as a result of his fall suffered a severe injury to his low back, causing a protrusion of the L5-S1 disc and requiring surgical treatment. It is by no means unusual for the symptoms of pain following an injury of that kind to take a few days to reach their peak. The plaintiff must have been in severe pain. The surgery carried out by Dr Newcombe in July 1995 was unsuccessful in relieving the symptoms, though the second operation in August 1996 did result in alleviation. This was improved by an exercise programme which the plaintiff undertook under the supervision of Dr McGrath.

98. By mid-1997, when the plaintiff saw Dr Olsen, I am satisfied that his condition had improved considerably, and that he exaggerated the extent of his disabilities when examined, particularly by doctors reporting to the workers' compensation insurer and the defendants. The plaintiff has, since shortly after the fall, been in receipt of workers' compensation payments and has had little incentive to seek remunerative employment. It must be acknowledged that his employment prospects are extremely limited. He is barely able to read and write, and has no formal qualifications. His low back injury and subsequent surgery have left him in a position where he cannot engage in employment which involves repetitive bending, heavy lifting or prolonged sitting or standing. He has a lengthy criminal record. The only jobs he has done in the past which might remain open to him are operating a console in a service station, and driving a small delivery van, delivering light items. There is no evidence as to the availability of such employment. It seems a reasonable assumption that there would be strong demand for such work as may be available and that the plaintiff would not present as a particularly attractive applicant.

99. As against this, consideration must be given to what the plaintiff's employment prospects might have been had it not been for the fall. His criminal history prior to the fall had included terms of imprisonment. At the time of the fall, there were charges pending against him which led to convictions thereafter. He has sought to blame his criminal conduct subsequent to the fall on his injuries and disabilities, but I have been unable to discern any change in the general pattern of his behaviour since the fall. There appeared to be some improvement in his conduct during the time of his employment with Cusacks and Sanfords, but it emerged that he was fraudulently receiving Centrelink benefits during that time, itself a criminal offence. I am not satisfied that by the time of the fall the plaintiff had achieved a point where his life of crime was behind him, or where his frequency of offending was likely to be much reduced.

100. Equally, I am not persuaded that the plaintiff's use of illegal drugs can be blamed on his injuries. He appears to have been mixing in a milieu in which others close to him were users of illegal drugs. Members of his family including his daughter were involved in criminal drug use. The plaintiff has not satisfied me on the balance of probabilities that his own drug use was injury-related or would not have happened if it had not been for the fall.

101. It must follow that the plaintiff's pattern of employment if it had not been for his injuries would probably have been irregular and interrupted by periods of imprisonment and drug rehabilitation.

102. I accept that as a result of the fall, the plaintiff has radiological evidence of compromise of the disc at L4-5. In the view of Dr Newcombe, this may ultimately require surgery. The fusion at L5-S1 is likely in some measure to increase the load on the L4-5 joint, to that extent increasing the chance that the injury at that level will eventually be reflected in symptoms which may warrant surgical treatment.

103. In the absence of psychiatric evidence, and of evidence from anyone associated with the Cumberland Hayes Unit or Oolong House, I cannot be satisfied that any depression from which the plaintiff has suffered since the fall has been causally related to the fall rather than to drug use and pre-existing personality factors. I note that there was in evidence a report by Dr Robert Tym, psychiatrist, dated February 1996, but that Dr Tym made no reference to the injuries suffered by the plaintiff in the fall.

104. I accept that the plaintiff probably continues to suffer from pain in the low back, but having regard to the inconsistency between his oral evidence and his presentation on the video taken in August 2003, I am not satisfied that the pain is constant or severe. I accept that it is likely that it will get worse as the years go by.

105. For general damages for pain and suffering and loss of enjoyment of life I would have awarded $65,000.00, apportioned as to $35,000.00 for the past and $30,000.00 for the future. The past component would attract interest which I assess at $9,000.00, taking account of the fact that the bulk of the past component is referable to the first two years after the fall.

106. I am satisfied that up to 25 November 2003, the workers' compensation insurer had paid ambulance, hospital, medical and related expenses of $28,487.67. Of that sum, about $700.00 had been paid during the last twelve months of the period. It is reasonable to assume that the plaintiff has incurred further expenses of that order since. I would thus have allowed $29,200.00 for treatment expenses. I would have made no allowance for interest, as all expenses have been paid by the insurer and none by the plaintiff personally.

107. I would have awarded an amount of $5,000.00 to cover future treatment, including the possibility in the distant future of further surgery to the lower back.

108. I would have made an allowance for the values of services provided for the plaintiff during the period immediately after the accident, and following his operations by family members of $2,000.00 plus interest of $1,500.00.

109. The allowance for impairment of earning capacity must take account of the interruptions to the plaintiff's periods of employment which would have occurred regardless of his injuries by reason of his use of alcohol and drugs and his criminal behaviour. A claim was made on his behalf, calculated without any reduction for those factors, and on the assumption that he would have continued to earn income at the same rate as at the date of the accident. This was calculated to 3 December 2003 at $211,665.04 net. By 25 November 2003, the plaintiff had received gross weekly payments of workers' compensation of $183,240.75, in addition to which he claimed the tax deducted by the insurer of $28,755.75. These figurers will have increased since then. The net amount of the plaintiff's claim will have increased by some $28,000.00, and the compensation and tax figures will have increased proportionately.

110. In addition to the factors I have mentioned, account must be taken of the cessation of the Sanford business during the year following the accident. This would have placed the plaintiff back on the labour market with the disadvantages I have already mentioned.

111. It is not appropriate to approach the calculation of a figure to compensate for past loss of earnings on a mathematical basis. I would have allowed $150,000.00 for past loss of earnings. As this is less than the total of the workers' compensation benefits, I would not have made any allowance for interest. Notwithstanding that the plaintiff would have been obliged to repay his workers' compensation benefits to the insurer in full, it seems to me that it would operate unfairly to the defendants for me to allow the full Fox v Wood amount claimed, and in that regard I would have allowed $20,000.00.

112. It would have been necessary to make an allowance for loss of superannuation benefits, proportionately to the amount allowed in respect of past loss of earnings. I would have allowed $10,000.00.

113. In arriving at a sum to compensate the plaintiff for loss of earning capacity for the future, my starting point would be the present net equivalent of the amount he was earning at the time of the accident, about $525.00 per week. The plaintiff is almost 43 years of age. Having regard to the nature of his work I would adopt a retirement age of 60. The present value of a continuing loss of $525.00 per week for a man aged 43 to age 60, assuming an interest rate of 3% per annum, is of the order of $365,000.00. For the reasons I have explained, I take the view that this vastly exceeds the value of the plaintiff's earning capacity regardless of his injuries. I have also found a degree of exaggeration in the plaintiff's presentation to the doctors who have treated him and seen him for the purposes of the case. That is to say, I take the view that his residual earning capacity is significantly greater than he would have had the Court and the doctors believe. The plaintiff bears the onus in a case of this nature, and can hardly be heard to complain if a component of his claim is not made out due to his own exaggeration and shortcomings in his credibility as a witness. I would have assessed the value of the impairment of the plaintiff's earning capacity by reason of the injuries sustained in the fall at $100,000.00 including loss of superannuation benefits.

114. The total of the individual components is as follows:

General damages $65,000.00

Interest on past component $9,000.00

Past treatment expenses $29,200.00

Future treatment expenses $5,000.00

Griffiths v Kerkemeyer 2,000.00

Interest thereon $1,500.00

Past loss of earnings $150,000.00

Fox v Wood $20,000.00

Loss of past superannuation benefits $10,000.00

Future loss of earning capacity $100,000.00

Total $391,700.00

115. That figure seems to me to represent a reasonable reflection of the effect on the plaintiff of the injuries and disabilities which resulted from his fall.

Conclusion

116. For the reasons previously stated, there will be judgment for each of the defendants. Normally costs would be expected to follow the event, but I shall hear the parties before making any order as to costs, including the costs reserved by Connolly J on 5 August 2003, in case there are considerations of which I am unaware.

I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 26 November 2004

Counsel for the plaintiff: Mr G A Stretton

Solicitors for the plaintiff: Snedden Hall & Gallop

Counsel for the first defendant: Mr M B Inglis

Solicitors for the first defendant: Hunt & Hunt

Counsel for the second and third defendants: Mr R L Crowe SC

Solicitors for the second defendant: Minter Ellison as agents for Bartier Perry

Solicitors for the third defendant: Australian Government Solicitor

Date of hearing: 1, 2, 3 December 2003

Date of judgment: 26 November 2004