Dickson v Telstra Corporation Ltd [2005] ACTSC 10 (14 February 2005)

Last Updated: 15 February 2005

PETER JOHN DICKSON v TELSTRA CORPORATION LIMITED

[2005] ACTSC 10 (14 February 2005)

NEGLIGENCE - personal injury - statutory authority - utility - dangerous or unsafe installation in public place - no issue of principle

DAMAGES - personal injury - low back injury -L4-5 and L5-S1 disc and facet joint injuries - no issue of principle

Husher v Husher (1999) 197 CLR 138

Assessment of Damages for Personal Injury and Death, Luntz, 4^th Edition, Butterworths 2002, paragraph 5.5.1 (p336)

No. SC 487 of 2001

Judge: Master Harper

Supreme Court of the ACT

Date: 14 February 2005

IN THE SUPREME COURT OF THE )

) No. SC 487 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: PETER JOHN DICKSON

Plaintiff

AND: TELSTRA CORPORATION LIMITED

Defendant

ORDER

Judge: Master Harper

Date: 14 February 2005

Place: Canberra

THE COURT ORDERS THAT:

Judgment be entered for the defendant.

1. The plaintiff is the principal of Peter Dickson Motors, a used car dealership operating from premises on the corner of Yass Road and Shropshire Street, Queanbeyan. There is a grass verge between the metal security fence enclosing the caryard and the kerb, and it was the plaintiff's habit to maintain the grass verge in an attractive state, as part of the presentation of his business premises. At about 1.00 pm on Friday 6 October 2000, the plaintiff was mowing the grass, using a conventional rotary motor mower, when he stepped on the concrete lid or cover of a Telstra pit. As he put his weight on the lid, it collapsed and he fell heavily, with part of his body falling into the pit. He was injured.

2. His solicitors commenced proceedings in April 2001 in the Magistrates Court against Telstra Corporation Limited as first defendant and Queanbeyan City Council as second defendant. In July 2001, they applied to transfer the proceedings to this Court. The application was granted by the then Master, now Connolly J, in August 2001. The costs of the application for transfer were reserved. In August 2002, the plaintiff discontinued the action against the Council.

3. Following the discontinuance, the plaintiff amended the statement of claim. The amended statement of claim, dated 9 December 2002, asserts that at all material times the defendant was the occupier of and had the care and control of an area of ground near the intersection of Yass Road and Shropshire Street, Queanbeyan, on which was a hole covered with a concrete platform or platforms. The statement of claim sets out the facts of the plaintiff's fall, and asserts that his injuries were caused by the defendant's negligence. The particulars of negligence are pleaded as follows:

a) allowing the concrete platform covering the hole to be in such a condition that it collapsed or became unstable when weight was put on it, thereby constituting a danger to people walking on it;

b) failing to warn the plaintiff of the danger of the concrete platform and its potential to collapse;

c) failing to fence off the said concrete platform;

d) failing to take such steps as were necessary to ensure that the concrete platform would not collapse when weight was put on it;

e) designing and/or constructing the pit and lid in such a way that:

(i) the lid rested on a 15 mm T-shaped steel bar across the centre of the pit;

(ii) there was nothing to restrain the lid from moving sideways and thereby going into a state of imbalance;

(iii) the lid was not resting securely on a concrete or plastic frame which sits around the top of the pit so that the lid would be secured in one position and not be susceptible to moving into a state of imbalance.

The plaintiff

4. The plaintiff was born on 13 July 1954 and is 50 years of age. He was 46 at the time of his fall. He was educated in Sydney to Year 10. He achieved reasonable marks and saw himself as an average student. After leaving school he worked for twelve months with a bank, and then worked with the NSW Department of Main Roads for six months as a surveyor's apprentice. After this, he gained his first employment in the motor vehicle industry. He started work as a cleaner and detailer, and after a time became involved in the purchase of second hand cars for his employer. Following Cyclone Tracy, he went to Darwin and worked replacing roofing and later working in an office. He returned to Sydney where he drove a taxi for six months. In about 1996 he moved to Canberra, and worked as a salesman with a Holden dealership for twelve months. He then joined a Ford dealership, Bryan Pollock Motors, and worked there for almost ten years as a valuer and buyer. His principal duties involved valuation of trade-ins and purchase of second-hand cars. He was promoted to used car manager after a time. Following a falling out with his employer, in April 1986 he started his own business, Peter Dickson Motors, in partnership with his wife at Queanbeyan.

5. Initially the business operated from rented premises in Shropshire Street, on the block adjoining its present site. In 1988, the corner block became available for rental, and the business took a lease and expanded the business to cover the two sites. In 1991, the corner block was placed on the market, and the plaintiff and his wife decided to buy it. To raise the deposit, they liquidated the stock on their original block, and the lease of that block was terminated. Since then, the business has been run on the corner block owned by the plaintiff and his wife. The caryard is paved with concrete and is uncovered with cars on display. There is an office building, where the plaintiff and his wife have offices with glass dividing walls so that they can keep an eye out for customers or visitors.

6. As a young man the plaintiff played various codes of football, but had not played any sport in the twenty years leading up to his fall. He broke a collarbone in a motorcycle accident in 1982 from which he has almost completely recovered: he still notices some localised pain at the fracture site in very cold weather.

7. The plaintiff met his wife in 1976 and they married in 1981. She had two young sons. They are now in their early thirties and independent. The plaintiff has played a significant parental role in their lives. During the year leading up to the plaintiff's fall, his wife developed a frozen shoulder which caused her considerable pain, and reduced her capacity to undertake heavier tasks both at home and at work. The plaintiff and his wife live in their own house at Macarthur, a southern suburb of Canberra. They have a large block of land with an extensive garden. They also have a large dog, described by the plaintiff's wife in evidence as very violent.

8. It was their practice to drive together from home to the caryard by 8.00 am on weekdays and Saturdays. The yard was closed on Sundays. For some three years prior to the fall, they had not had any other employees, though some tasks necessary to the business were undertaken by outside contractors. The caryard formally closed at 5.30 pm but the plaintiff and his wife rarely left before 6.30 pm.

9. The plaintiff took the view that presentation was a very important part of the success of the business. Cars which he had purchased for resale were first placed in the hands of a contract detailer. Once a car was put on sale at the yard, the plaintiff regarded it as extremely important to ensure that the car was clean at all time. The first task in the morning was to wash the cars on site and to dry them using a chamois. It was also important, he said, to be alert inside the yard for weeds, cigarette butts and other rubbish, and also oil stains. He was also concerned that the surrounding grass be mowed and edged regularly, and that weeds be controlled.

10. He explained that a principal part of the business is the selection and purchase of stock in the form of used cars. The business purchased stock from local dealers and also from auctions in Sydney. Typically the plaintiff would visit local (Canberra and Queanbeyan) car dealers to check available stock on Mondays. On Tuesdays and Wednesdays he would drive to Sydney to attend auctions. On Thursdays and Fridays he would check the local car dealers again. The plaintiff takes the view that the major skill he brings to the business is his capacity to assess and value used cars. He has many years of experience doing so. A car may appear superficially to be in good condition, but may have been involved in a major accident, or may have been driven over rocky country or through rivers, or, even worse, salt water. The plaintiff, having identified vehicles of the type which might be of interest to the business, would carry out a thorough physical inspection, which involved checking the interior of the vehicle and the engine compartment, and also climbing underneath the vehicle to check the condition of its base. This presented practical difficulties at some of the Sydney auctions where there might be some hundreds of vehicles going to auction on any particular day, parked in very close proximity to each other. The plaintiff mentioned that prior to bidding at auction, it is necessary to check details on a vehicle's compliance plate, which is often fixed to the firewall, low down behind the engine, requiring him to bend well into the engine bay.

Circumstances of the plaintiff's accident

11. As previously mentioned, the plaintiff regularly mowed the grass between the caryard and the roadway. Because it was a corner block, there was a considerable expanse of grass. There was no footpath, and pedestrians regularly walked on the grass. From time to time people parked vehicles on the grass, though the plaintiff never did so himself. There were on the grassed area, in addition to a timber telegraph post and a metal post supporting a traffic sign, a number of concrete covers used by various utilities for access to underground services. These included stormwater drains, gas lines and a sewerage line in addition to telephone cabling. These presented to the observer as flat concrete shapes flush with the lawn. They included the covers of the Telstra pit into which the plaintiff fell. He mowed the lawn once a week during the summer and less frequently during the rest of the year. When mowing the grass, the plaintiff pushed the mower over these concrete areas, and walked over them. His evidence was that he had walked over the Telstra pit, running the mower over the covers and stepping on the covers himself, on numerous occasions over the years without incident. There was nothing about the appearance of the Telstra pit lid which might have drawn anyone's attention to any problem about it, and the plaintiff had probably walked across it the previous week as well as on many other occasions in the weeks, months and years leading up to the fall.

12. The plaintiff's recollection was that he was about two-thirds through the task of mowing the grass when the fall occurred. He pushed the mower over the top of the concrete lids. As he placed his weight on the right-hand or southern lid, it collapsed into the pit. He fell, landing on his back. His right knee and shin made contact with the lid or some part of the pit. He lay there for a couple of minutes, stunned and in pain, and trying to comprehend what had happened. He then called to his wife, and slowly extricated his right leg from the pit. He was able to get up and walk towards his wife, though he described the pain in his knees and shin as excruciating. He was also conscious of a dull ache in the low back and in the right side of the neck. He went into his office and lay on the floor for a time, sweating profusely and feeling nauseous. His wife got him a cool drink and some Panadol.

13. He and his wife then decided to telephone Queanbeyan City Council to report the incident. The plaintiff made the call, and spoke to the council engineer, Mr Hitchin, who was already known to him. Mr Hitchin was there within fifteen minutes. He came into the office. He and the plaintiff walked out to the pit, which the plaintiff pointed out to him. Mr Hitchin said "That's not a council pit, that is a Telstra pit." Very close to the Telstra pit was a circular concrete cover, which Mr Hitchin identified as a council sewerage pit. Mr Hitchin suggested to the plaintiff that he see his doctor and that he arrange for some photographs of the pit to be taken.

14. The plainitff obtained a telephone number for Telstra, which he rang. He spoke to a man who identified himself as Brendan Cotter. Mr Cotter said that he was based in Wollongong. He asked the plaintiff what had happened, and gave him a complaint number. The plaintiff told Mr Cotter that he intended to see his doctor, and Mr Cotter said "Get back to us and tell us how you went."

15. Shortly after this, the plaintiff receieved a telephone call from a woman who identified herself as Jo Braithwaite, also from Telstra. She told him that she was sorry the accident had happened and asked how the plaintiff was, and what he was intending to do. He explained that he was going to see his doctor and she asked him to ring back and let her know how he got on.

16. Before seeing the doctor, the plaintiff drove into the Queanbeyan shopping centre, about a kilometre away, and bought a disposable camera. He returned to the caryard. He saw a Telstra station wagon parked there, and a Telstra employee who identified himself as John Humphries. The lids had been put back in place. The plaintiff told Mr Humphries that he had fallen into the pit. Mr Humphries said that he had only been in the district for a couple of months and that Telstra would fix the pit. The plaintiff bent down and demonstrated the degree of movement in the right-hand concrete lid. Mr Humphries said that the reason for this was that the pit had widened. He asked the plaintiff whether he parked vehicles in the area. The plaintiff told him that the only vehicles he had seen parked there were Telstra vehicles.

17. Mr Humphries then left, and the plaintiff put the pit lids back into the position in which they had been after his fall. He took some photographs of the pit and of the area generally. He noticed inside the pit a steel bar which looked like a T-shaped star picket. It was vertical and leaning into a corner of the pit. He also observed a number of cracks on the internal side walls of the pit.

18. Mr Humphries had placed a yellow metal barrier around the pit. A little later, an unidentified Telstra employee came to the site and took some photographs. The barrier remained in place for about a month, until one day the plaintiff and his wife came to work to find that it had been removed and that the pit had been replaced with a new one, a large black fibreglass tub, with two new concrete lids. Some of the grass immediately around the pit had been removed so that the surface was lowered. More than a year later, the plaintiff saw Mr Humphries at the site with a garbage tin full of soil and a spade, which he used to fill in the area around the pit.

19. Some time after the pit was replaced, the plaintiff recalled an occasion when a Council subcontractor attended the site and replaced the circular lid to the sewerage pit adjoining the Telstra pit with a new lid. The plaintiff did not recall otherwise seeing any Council workers working on the sewerage pit at any time since he started in business at the site in 1986.

20. On the day of the accident, the plaintiff attended the surgery of his general practitioner, Dr John Sanderson at Deakin. He was given a tetanus injection and a prescription for painkillers, and his wounds were dressed. Dr Sanderson advised him to rest for the weekend, and to return on Monday of the following week, that is in three days.

21. The plaintiff gave evidence that he had seen Telstra vehicles parked on the grass on six or seven occasions in the year leading up to the accident. Whenever this happened, he asked the Telstra employees to move their van off the grass. He did not say that on any of these occasions he saw Telstra employees working near or in the pit where he fell.

22. However, he gave evidence of a specific incident, about six weeks before his fall, or perhaps a little less than six weeks, when he was returning from a café adjoining the caryard in Yass Road, and saw two Telstra employees, one in the pit and one beside it. The lids had been removed. He estimated that the employees were there for at least two hours. As he walked past he said to them "Make sure you look after that grass." The plaintiff was vigorously cross-examined about this piece of evidence, but insisted that it was correct. He agreed that he did not say anything about it to Mr Humphries on the day of the accident, nor did he tell his solicitors about it; nor did he say anything about it to Mr Mark Dohrmann, a consulting engineer and ergonomist who was qualified by the plaintiff's solicitors as an expert witness in the case. Mr Dohrmann had spoken at length to the plaintiff by telephone in May 2001, and obtained a detailed account of the sequence of events, and had travelled to Queanbeyan to conduct a site inspection in August 2002 in company with the plaintiff.

23. The plaintiff's wife gave evidence generally consistent with that of her husband. In particular, she said that some time in the middle of August 2000, four or five weeks before the accident, she saw two young men, one in the pit and one kneeling beside it, and a Telstra van parked in the driveway of a motel on the other side of Shropshire Street. The man in the pit appeared to be holding up cables. Mrs Dickson exchanged pleasantries with the men. She said that she knew some of the other Telstra men and spoke to them from time to time when she saw them at what she described as the other pit, a large pit some distance south along Yass Road close to a Telstra post. She gave the impression that Telstra employees were in attendance at the post and the larger pit fairly regularly.

24. Mrs Dickson was not specifically cross-examined about the incident a few weeks before the fall. I suspect that counsel for the defendant inadvertently overlooked this, and in view of his cross-examination of the plaintiff, I would not regard him as having accepted Mrs Dickson's evidence about the incident without challenge. I have no doubt that, like her husband, if challenged she would have adhered to her evidence in chief. There were, however, some aspects of her evidence which I found a little unsatisfactory. She denied that she had discussed with her husband anything about giving evidence in the case, and specifically denied having discussed the evidence either of them were intending to give. They are clearly a close couple. They have been married for more than thirty years. They live alone together and they work together. I found Mrs Dickson's evidence that she had no discussions with her husband about her evidence difficult to accept.

25. Mrs Dickson also gave the impression at times of seeking to mislead by not giving full answers to questions. She gave evidence about an occasion when she and her husband arranged for the lids to the Telstra pit to be removed so that they could see what work had been done in the pit. Asked what motivated her to do so, her reply was:

To see what work had been done for safety reasons. Because there's a lot of pedestrians and we also have people coming into our caryard. And just concern of the public more than anything.

I found her attempt to attribute the inspection to altruism, rather than to the advancement of her husband's claim, unconvincing.

26. She was asked in chief, in relation to this inspection, where the lids were, and said that they were in place on top of the pit. She was asked how she saw inside the pit in those circumstances, and replied "we had them removed". Cross-examined about this, she was asked whom she rang to have them removed. Her answer was "professional family member." Asked to identify the person, her first response was "just a family member." Further cross-examination identified the family member as her son Rick Dickson, a property manager with the Richard Luton group in Canberra. Asked whether the description as a professional family member was intended to convey that he had some expertise in dealing with Telstra pits, she conceded that he did not, but said that he had a proper tool and removed it correctly. She acknowledged that they had conducted this inspection without notice to or permission from Telstra, and was unable to explain why permission had not been sought. I found her evidence about this incident to be lacking in candour.

27. A little later in her cross-examination, she gave evidence about instructing a Queanbeyan-based engineer, apparently with a view to qualifying him as an expert witness, in the week following the accident. It seems that he was an employee, and that after he had been to the site and conducted an inspection, his superiors decided that they did not want their firm involved in the matter. Mrs Dickson could not remember the engineer's name but said that they had decided to engage him "on advice". Asked on whose advice, her initial reply was "just on advice." The issue was pursued, and she ultimately said "probably our own advice." She then said that this had happened nearly four years earlier and she could not quite remember exactly what had happened. She said that they had found him through the yellow pages.

28. She was asked whether she told the engineer when she first telephoned him that the purpose of the inspection was to determine whether the plaintiff might have a claim against Telstra. She denied this, and said that she just wanted to observe the condition of the pit. Asked whether she had told the engineer that she wanted the inspection because they were intending to sue Telstra, she said that she had not said this. Asked what she had told him, she said "I told him that Peter had had an accident in the pit, that was it." Asked what that had to do with an engineer, she added "and it would possibly mean that we would have to go to court." She was then asked to confirm that she retained an engineer a week after the accident for the purposes of suing Telstra. Her answer was "possibly". In relation to this incident, Mrs Dickson gave the impression that she was attempting to avoid giving an answer to any question which might not assist her husband's case, at any greater length than was absolutely necessary. The effect of these various aspects of her evidence is that I am left with some reservations about her evidence generally, except where it is independently corroborated. I had the impression that her principal motivation was to give evidence in such a way as to assist her husband's case. This is hardly surprising and not necessarily a matter calling for criticism, but detracts from the weight of her evidence.

29. Mr James Hitchin was called in the plaintiff's case. At the time of the fall, he was manager of engineering operations with Queanbeyan City Council, a position from which he had retired by the time of the hearing. He is a qualified professional engineer. He worked for the Council for twenty-seven years, the last nine as engineering operations manager. He confirmed that following a message received by a receptionist at the Council, he took a camera and went to the caryard. It was standard procedure to make a report and take photographs where any incident occurred involving property damage or injury which might result in a claim against the Council. When he arrived, he saw the plaintiff standing on the grass near the Telstra pit. The plaintiff suggested to him that it was a Council pit. He inspected the pit and saw that it was a Telstra pit. He told the plaintiff that he should report the accident to Telstra. He also suggested that the plaintiff see a doctor and have some photographs taken of the pit. In his brief observation of the pit, he noted that both lids appeared to have tilted inwards into the pit, and that the steel central supporting bar was standing vertically in the pit, resting against a wall. He was unable to inspect the condition of the walls of the pit because they were obscured by the lids, and he did not see enough to be able to arrive at any view as to the cause of the collapse of the lids.

30. Mr Hitchin also observed the sewer manhole close to the Telstra pit. He explained that below the manhole was a three-way junction point, with two mains coming in and one going out, eventually discharging to a pump station 150 metres to the north. He had checked council records and satisfied himself that that part of the sewerage system had been built in the late 1960s or early 1970s. He produced a linen plan relating to work to be carried out between October 1972 and January 1973, which showed that the sewerage system, including the pit in question, was already in place at that time. The concrete surround and lid were replaced in about May 2001 following a complaint that contractors for Telstra had damaged them, presumably when they replaced the Telstra pit.

31. Mr Hitchin produced another linen plan relating to work carried out in September 1978, which showed some Telstra pits along Yass Road but no pit in the location at the corner of Shropshire Street. The plan related to major road works being conducted along Yass Road at that time. Mr Hitchin concluded that the Telstra pit had not been in place in 1978.

32. Shown photographs taken immediately after the plaintiff's fall, he agreed that the surround and lid of the sewerage pit had a fairly new appearance at that time. However, he had checked Council records and found no mention of any replacement of the lid or surround as far back as 1990. He did not go any further back in the records, but concluded from this that whilst the surround and cover were not original, they dated from prior to 1990 and were at least ten years old at the time of the fall. Mr Hitchin had been in his present position since 1995 and was able to say from his own knowledge that no work had been done on the sewerage pit from then until the fall. Whilst records were not kept of every inspection made by Council staff of a pit, there was a record made of complaints and of any work involving replacement of components or other major work. He had taken a personal interest in the inspections of the sewerage system in the Yass Road area because he was aware that oil was being disposed of into the sewerage system, and he and the Council plumbing supervisor had conducted inspections frequently to try to determine where the oil was entering the system. It was very rare for Council employees to get into a sewerage pit unless there was a collapse. Routine blockages were cleared with a high pressure jet cleaner, and this could be done from above the manhole without the need for staff members to enter the pit.

33. Counsel for the defendant called Mr C R McDiarmid, a senior manager with Telstra based in Sydney and having national responsibility, inter alia, for pits of the kind into which the plaintiff fell. He explained that there were about 14 million such pits in Australia, and about 7,000 in the Queanbeyan district. Mr McDiarmid attended the scene on three occasions, in August and September 2001 and January 2002. The pit had already been replaced by the time of his first attendance, but he had available some photographs taken a couple of weeks after the fall. He estimated the age of the pit at 35 to 40 years. One was able to place some reliance on logos which could be seen on pit lids and cabling. Until 1975, the telephone system was operated by the Postmaster-General's Department of the Commonwealth, and there were distinctive PMG logos in use. From 1975 until 1993, the role was taken over by Telecom, the business name of a commonwealth statutory authority, and from 1993 by Telstra, originally a government-owned corporation, and still a company with majority government ownership and control. The pit lids seen in the photographs had Telecom logos, and would thus date from 1993 or earlier. Inside the pit were telephone cables of two kinds, air-core plastic cables and grease-filled plastic cables. There were no joins in any of the cables. The reason for the placement of a pit in that area was to lower the depth of the cabling to take it under Shropshire Street. Cabling under footpaths and verges is generally at a shallower level than cabling under roads. Thus the cabling entered the pit from the south, and exited to the north, to another pit on the opposite side of Shropshire Street, where the cables would be brought back up to the next grid.

34. There was another larger pit about 50 metres south, on the grass. Mr McDiarmid described this as a major manhole where major cables intersected. Adjoining it was a pillar which he described as a distribution point for the general area, with four to five hundred customers receiving their services via the pillar. He said that whilst Telstra staff would be likely to require access to the pillar regularly, for example each time a new telephone line was installed to a customer in the area, there was no reason why any Telstra employee would need access to the pit in which the plaintiff fell. The only possible reason would be to install new cable across Shropshire Street. He had checked internal Telstra records and found no record of any work being carried out on the pit, or any cable being installed in or through the pit, during a period of five years leading up to the plaintiff's fall in October 2000.

35. He explained that the air-core cables had been used until 1979, and after that, grease-filled cables had been found to be more effective, and were installed after that date. It would not be necessary to open the pit on the plaintiff's corner to check for damage in the event of a line fault. The method used was to test the cable electrically, providing a reading from which the position of the fault could be located. After 1995, Telstra adopted the practice of placing date stamps on cables. None of the grease-filled cables were date-stamped, which confirmed Mr McDiarmid's opinion that they had been there since prior to 1995. It was possible that cable installed after 1995 from existing stock would not have been date-stamped, which meant that there was a theoretical possibility that an unstamped cable might have been installed up to perhaps 1998, but this was relatively unlikely because of Telstra's policy of minimising stock of cable.

36. Mr McDiarmid also explained that in the 1930s and 40s, it was more likely that telephone technicians would have checked cabling from pit to pit or pole to pole, but in recent decades, time constraints had resulted in technicians being trained to make deductions from plans and by the use of electronic instruments, rather than by conducting physical pit inspections. The only reason a Telstra technician would have any reason to open the pit into which the plaintiff fell would be to haul cable through, or to estimate the requirements of hauling cable through it. There were no records of this having happened, and no physical signs of it in the pit itself. This confirmed Mr McDiarmid's view that Telstra technicians had had no occasion to open or enter the pit for at least five years prior to the plaintiff's fall. He was asked to accept that Telstra personnel had been seen working in the pit and in the corresponding pit on the other side of Shropshire Street early in 2000, and asked how he would explain this. He said that he was unable to offer any explanation, though he agreed that he was not in a position to deny that it had happened.

37. He was asked about a new industrial area which had been developed on the opposite side of Yass Road. He explained that the cabling to the other side of the road did not go through the pit into which the plaintiff fell, but rather through the larger pit fifty metres to its south.

38. Mr McDiarmid was shown in cross-examination the linen plans produced by Mr Hitchin from Queanbeyan City Council. He said that they did not show any of the pit network. He did not agree that the plan was suggestive that the pit in question had been installed some time after September 1978. He adhered to his opinion that the pit was much older than that.

39. Mr McDiarmid was then taken to the photographs of the interior of the pit taken shortly after the accident. He agreed that they showed that the eastern wall of the pit had moved outwards, and that there was cracking and damage to the lip on which the covers rested. At one point the lip could be seen to have broken away, allowing the metal bar and the cover to slip down into the pit. He thought that the expansion of the pit had probably been caused by the application of a load to the top. He agreed that after the fall the pit was unsatisfactory and dangerous and needed to be replaced. He was asked whether the decision to replace the original asbestos cement pit with a plastic one was because the original materials had proved to be brittle and susceptible to damage. He disagreed and said that the reason Telstra had moved to plastic or fibreglass pits was because of their much lower weight, and hence ease of transportation. He said that the original pits had been designed to withstand occasional crossings by motor vehicles, though not regular traffic. He thought from the photographs that some of the damage in the pit appeared to be a number of years old.

40. On 25 October 2000, Mr Humphries completed an internal Telstra health and safety incident notification form. His description of the incident was as follows:

MOP [member of public] mowing lawn on nature strip when number six pit lid collapse causing MOP to fall into pit.

By way of preventative action, he recorded that a request had been approved and forwarded to a contractor to replace the pit, and that meanwhile the pit had been made safe with guards. The authority to the contractor was dated 10 October 2000 and named the requesting Telstra officer and site contact as Steve Little, and the authorising officer as Morrie Butler. The defendant did not call Mr Humphries, Mr Little or Mr Butler to give oral evidence.

41. Mr M F Dohrmann, the consulting engineer and ergonomist previously mentioned, provided a number of reports and gave oral evidence in the plaintiff's case. His initial opinion, based on instructions and photographs before he had visited the site, was that it seemed likely that the design or construction of the pit had been faulty from the outset. By the time he conducted an inspection, in August 2002, the pit had been replaced. He was asked in chief whether he had come to a concluded opinion about the likely cause of the collapse of the lid or lids of the pit. His answer was that he was unable to say why the lid fell. He had offered a number of explanations but could not conclude that any explanation was necessarily his opinion about the fall.

42. He had observed in the photographs some damage to the side wall of the interior of the pit. If that damage had been present at the time of the incident, this would explain the instability of the lid. He initially thought from the photographs that there was no lip for the lid to rest on, and that this was the cause, but the photographs were inconclusive and he could not be sure that there was no lip. If there was no lip, then damage to the pit wall was the more likely explanation. Mr Dohrmann agreed in cross-examination that if one assumed that there had been a lip all the way around the pit, then his opinion as to original poor design and construction had no basis. He also agreed that the pit was probably an old PMG pit, that is to say, pre-1993. The fact that the lids bore Telecom logos was neutral: it was not uncommon to see a new lid on an old pit. Lids were broken and vandalised from time to time. His view was that there were two necessary preconditions for movement of the concrete wall of the pit outwards: firstly there needed to be some movement of earth adjacent to the concrete, so that there would be room for the wall of the pit to move. Secondly, there would need to be some force, for example on top of the pit, applied in such a way as to push the concrete out. He agreed that such a combination of events was the most likely explanation for the deformation of the pit. He thought that the pit and lids "could have been in a condition of teetering in the balance for quite a period and taking quite a small force such as a footfall or a forward movement just to take it to where it went." The scope for sideways movement might have been due to excavation in the vicinity of the pit, perhaps associated with the sewerage pit, or it might have simply been due to erosion caused by weather and water over a long period of time. This might have occurred notwithstanding that the grass all around the pit appeared to be in good condition.

43. Another engineer, Mr K J Halstead, was qualified on behalf of the defendant. Mr Halstead is a civil engineer with a lengthy career in local government and also as a university lecturer. Although the defendant's solicitors had served his report, he was not called in the defendant's case, and his report was tendered on behalf of the plaintiff. He measured the distance between the Telstra pit and the nearest point on the surround of the sewer manhole at 280 mm. The sewer pit is just south-east of the Telstra pit. Mr Halstead conducted his inspection in August 2002. He formed the view that the sewer manhole had been constructed in the preceding five years, and certainly after the Telstra pit. He said that it would have been necessary to use heavy construction plant and trenching equipment when constructing the sewerage pit. He thought it most likely that the Telstra pit was structurally damaged when the sewer manhole and mains were constructed. He did not agree that there was any evidence of subsidence of the Telstra pit, and in particular disagreed with a suggestion made by Mr Dohrmann in one of his reports that perhaps the pit site had not been properly back-filled when it was first excavated.

44. Mr Halstead's preliminary conclusion that the sewerage manhole was installed only some five years or so prior to his inspection is inconsistent with the evidence of Mr Hitchin and also with that of the plaintiff. The plaintiff did not suggest that the sewerage manhole had been installed during his time at the site, that is, since 1986, and Mr Hitchin concluded that it had been in place since prior to October 1972. The lid and surround had a more recent appearance at the time of the fall, and may have been replaced some time prior to 1990. It is not suggested that replacement of the surround and lid would have required the heavy construction equipment referred to by Mr Halstead in his report.

The plaintiff's injuries and the medical evidence

45. I have already referred to the plaintiff's evidence about the day of the accident, and his description of excruciating pain in the knees and right shin, accompanied by a dull ache in the low back and the right side of the neck. His general practitioner, Dr Sanderson, saw him about two hours after the fall. He dressed the plaintiff's wounds and gave him a tetanus injection. He prescribed painkillers. He observed abrasions and contusions to the right leg and recorded complains of pain in the cervical spine and in the lumbo-sacral region, the latter becoming more pronounced with time. He referred the plaintiff for an x-ray of the lumbar spine, which showed narrowing of the L5-S1 disc space and minor retrolisthesis at that level, but no other abnormality. The plaintiff saw Dr Sanderson again on 12 October, still complaining of severe pain, and was referred for physiotherapy and given prescriptions for Panadeine Forte and Voltaren. Dr Sanderson referred the plaintiff for a CT scan of the pelvis which excluded a possible fracture of the iliac crest. In late January, Dr Sanderson referred the plaintiff for a CT scan of the lumbar spine which showed a disc bulge at L4-5 and a disc protrusion at L5-S1 with disc material in contact with the emerging S1 nerve roots.

46. Dr Sanderson referred the plaintiff to Dr R L G Newcombe, neurosurgeon, who saw him on 2 February 2001 and referred him for an MRI scan of the lumbosacral spine. This established that the L4-5 disc was desiccated and reduced in height, with a posterior annular tear associated with disc protrusion to the right, contacting and minimally displacing the right L5 nerve root. The L5-S1 disc was also desiccated and reduced in height, with a moderate posterior disc bulge contacting but not displacing both S1 nerve roots. There was mild facet joint osteoarthrosis throughout the lumbar spine. When Dr Newcombe saw the plaintiff a second time to discuss the MRI findings, his sciatica had improved. Dr Newcombe arranged to review him two months later. When he next saw him in early April, the plaintiff complained of persistent sciatica. Dr Newcombe discussed with him the option of a microsurgical discectomy to decompress the nerve roots. It was Dr Newcombe's opinion that the fall had caused aggravation of pre-existing but asymptomatic lumbar spondylosis. If the injury had not occurred, Dr Newcombe thought that by age 60, the underlying condition would probably have produced symptoms in the form of tolerable back pain without sciatica.

47. In July 2001 Dr Sanderson sent the plaintiff to Dr P W Blum, a neurosurgeon in Sydney, for a second opinion. Dr Blum did not regard the plaintiff as a candidate for surgery but suggested an epidural steroid injection, perhaps accompanied by oral steroid medication.

48. Dr Newcombe saw the plaintiff a year later, in April 2002. The plaintiff's symptoms had persisted despite physiotherapy and facet joint blocks, although the neck pain was considerably improved. Dr Newcombe thought that by this time the plaintiff's condition was stable, and that surgery was not indicated unless the sciatic pain became much worse.

49. The plaintiff attended twenty-five sessions of physiotherapy, commencing about ten days after the fall and concluding at the end of August 2001. He found that the physiotherapy did not provide much help and sometimes aggravated his symptoms, and he opted not to continue with this treatment. Dr Sanderson reviewed him regularly throughout this period, and reported in October 2001, a year after the fall, that the plaintiff was still in considerable pain and unable to work effectively in his business or enjoy his leisure time. He was dependent on powerful medication and quite depressed about his future. Dr Sanderson thought that it would take another two or three years for his condition to improve but that he would suffer permanently from low back and relapsing episodes of sciatica. His paraspinal musculature could be expected to waste over the next five or ten years, leaving him prone to accelerated degeneration of the spine. Dr Sanderson did not think that surgery was likely to be successful.

50. In January 2002, Dr Sanderson referred the plaintiff to Dr Jeremy Price, a radiologist, who administered an epidural block needle injection to the lumbar spine. The procedure was unsuccessful, some of the injectate becoming misplaced into superficial soft tissues. In the same month Dr Sanderson referred the plaintiff to a Sydney orthopaedic surgeon, Dr M M Giblin. Dr Giblin found the plaintiff to be distressed and slightly depressed. After reviewing the radiological reports he recommended a regional bone scan, which showed mild facet joint pathology at L4-5 and probable mild disc disease at T12-L1. Dr Giblin expressed the opinion that the plaintiff was permanently unfit for work which involved repetitive bending, heavy lifting or prolonged sitting or standing. He thought that future surgery was a possibility, and recommended that the plaintiff continue with physiotherapy and with a Pilates exercise program from which he had obtained some benefit, for the next two to three years. He thought that the plaintiff would require physiotherapy two or three times a year, for four to six treatments at a time, for acute exacerbations of pain.

51. In mid-March 2003, at Dr Sanderson's request, Dr Robert Allen, radiologist, administered a right L4-5 facet joint block by needle injection. The plaintiff's evidence and his remarks to doctors at the time were to the effect that this procedure provided little if any relief. By August 2003 Dr Sanderson had prescribed an antidepressant and pain modifier, Dothiepin, as well as Panadeine Forte which the plaintiff required on a continuing basis. Dr Sanderson thought that the plaintiff had developed a reactive depression to three years of failure to improve his pain and disability. His prognosis for full recovery was very poor.

52. Dr Giblin saw the plaintiff again at the request of his solicitors in September 2003 and March 2004. He noted complaints of continuing low back pain with radiation into the legs, and also intermittent neck discomfort and stiffness which was often worse when the back pain played up. Painkillers gave only moderate relief. Aching was worse in cold weather. The plaintiff was able to walk for a kilometre, sit for an hour and stand for an hour, and was able to continue to run his business but in what he described as a light duty capacity. Sleep was interfered with. Sexual activity was painful, and his social life was much restricted since the injury. He continued to gain benefit from Pilates, which Dr Giblin endorsed. Dr Giblin expressed the view that he would need to see his general practitioner every six weeks. On both occasions when he saw Dr Giblin in 2003 and 2004, the plaintiff had driven to Sydney for the purpose and reported that he had had to stop twice for rest breaks on the way. He appeared stiff and sore, and demonstrated a slight limp which he attributed to the long drive.

53. Dr Sanderson noted in February 2004 that since the accident the plaintiff had developed a pain related to the soft tissues over his right hip, associated with a slight limp, which the plaintiff believed was secondary to efforts to reduce the severity of his low back pain. He recorded that the plaintiff had an increasing sense of depression, hopelessness, poor self-esteem, anxiety, insomnia and irritability. Dr Sanderson thought that the plaintiff would continue to experience these symptoms for at least another five to ten years. He thought that the plaintiff was at some risk of self-harm, having had some suicidal ideation when his pain was particularly intrusive.

54. Counsel for both parties relied on written medical reports, and none of the doctors gave oral evidence. For the defendant, the plaintiff was assessed by Dr D M Jensen, neurosurgeon, in June 2001. Dr Jensen found the history consistent with the complaints and presentation, and generally accepted the plaintiff. He thought that surgery had only a limited chance of producing a satisfactory outcome, and that a better result might be achieved through an exercise program and perhaps a multi-disciplinary pain clinic. The prognosis was guarded, but one might expect spontaneous improvement over a period of time. It was quite possible, however, that the plaintiff would continue to be troubled by low back pain and symptoms in the legs, and that he would continue to be restricted in his general activities. Deterioration was unlikely.

55. Dr T A Silva, orthopaedic surgeon, also saw the plaintiff at the request of the defendant's solicitors. He first examined the plaintiff in June 2001. He found some inconsistencies in the plaintiff's clinical presentation, particularly with straight leg raising and the degree of restriction of movement in the back. He noted that the plaintiff had calluses and work-staining on his hands, which he said would be possible only if he had been recently engaged in heavy manual work. He suggested that it might be helpful to observe the plaintiff off-guard. The long-term prognosis was for continuation of back and leg pain, though it was unlikely that the plaintiff would come to surgery. Dr Silva saw the plaintiff again in February 2004. His comments about the plaintiff's presentation were the same. The plaintiff's solicitors had provided him with copies of reports by Dr Newcombe and Dr Giblin, and by and large he agreed with the general thrust of their opinions. He also agreed that the plaintiff would have some difficulty in bending over and looking underneath cars in the course of an inspection. He accepted that the plaintiff would have required some domestic assistance for a month or so after the accident but not thereafter.

56. The plaintiff was also referred by his solicitors to Associate Professor R F Jones, a consultant physician in rehabilitation medicine in Sydney. His conclusion was that the plaintiff had mild degenerative changes in the discs in his low back, which may have been damaged by the fall, and may have impacted on nerve roots. He should not repetitively lift weights of greater than ten kilograms but was independent in personal care and the activities of daily living of a light domestic nature. There were likely to be remissions and exacerbations in his symptoms from time to time depending on activity. With the passage of time the symptoms should become less severe. There was no imminent need for surgery and in any event surgery would not cure him of back pain. He probably required about three hours a week domestic support for the first three months after the fall, but this was no longer required. He should avoid lifting heavy furniture and extensive housecleaning.

57. The plaintiff's solicitors referred him to a clinical psychologist, Ms Georgia Tayler, for assessment. Ms Tayler saw the plaintiff on three occasions between September 2001 and January 2002. She took a very detailed history, describing the plaintiff as an honest and frank historian, loquacious and articulate. Stress and frustration were evident during her discussions with him. The plaintiff felt resentment at the loss of his physical wellbeing. He was something of a perfectionist and found it stressful that he was no longer so capable at keeping the cars in his caryard clean and well presented. He mentioned that he felt enormous frustration at the apparent failure of Telstra to take responsibility for the poor support of the concrete slabs over the pit, and he felt disillusioned as a result of the way Telstra, the Queanbeyan Council and one of the defendant's doctors had behaved towards him. The doctor had spoken to him in an aggressive manner and suggested in a report that he was creating symptoms to support his legal case. The plaintiff said that this was completely untrue.

58. He told Ms Tayler that he had deteriorated over the year or so since the accident, replaying negative scenes of the fall in his mind. He tended to worry about the future of his business. Ms Tayler administered a number of psychological tests and was satisfied that the results were valid. Scores were high in relation to restlessness, impulsivity and high energy, and also irritability. Mild to moderately elevated scores were obtained in relation to somatic complaints and anxiety. The plaintiff had a moderately elevated score on the obsessive-compulsive subscale indicating inflexibility. Symptoms of depression were not clinically significant, and the plaintiff was unlikely to seek psychological treatment. She thought that on balance he did not qualify for a diagnosis of adjustment disorder, though he clearly suffered from significant anxiety and depression. She expected that the accident was primarily responsible for the psychological symptoms of anxiety, stress, depression and increased fragility. His psychological problems were not such as to prevent him from coping with the demands of running his business.

59. The plaintiff was referred by the defendant's solicitors to Dr Tom Sutton, a Canberra-based clinical psychologist of considerable experience. Dr Sutton's report was not tendered and I draw the available inference that the opinion expressed by Dr Sutton would not have assisted the defendant's case.

60. The plaintiff was asked in chief his current view of the viability of his business. He said that he had become more and more frustrated, anxious and angry. He found that this affected the manner in which he related to customers, and was reflected in reduced car sales. He felt that because of his constant pain and his attitude problems, he would probably be looking in the near future at doing something else rather than continue trying to run the business. However, he could not think of any other kind of work he could do.

61. He also gave evidence in chief of domestic activities which he was no longer able to do, and which his wife had taken over. He said that he used to help his wife with scrubbing floors, vacuuming, bedmaking, hanging out washing, lopping trees, lawn edging and climbing ladders to clean gutters. Basically he did not do any of those any more and his wife now did them, probably spending eight to twelve hours a week doing so. One of his sons attended to any heavy lifting which was required.

62. He was cross-examined at some length about this evidence. He conceded that his wife had a frozen shoulder and was not able to wash cars as she previously could. It was put to him that she was unable to scrub floor (answer: "we don't normally scrub floors, sir") or lop trees (answer: "she shouldn't"). He attempted to distance himself from his evidence in chief, saying that he did not believe that he had said that his wife did tasks he could not do, and did not think that he had said that his wife lopped trees. He agreed that she did not climb ladders and clean the gutters and that he remained capable of putting clothes in a washing machine or dryer and hanging them on the line.

63. He was then cross-examined about his activities in the caryard. He was shown five small photograph prints which had been torn from an investigation report, and which were clearly stills from video film. These showed him bending, apparently while drying a car with a chamois. The video was not shown in court or tendered and the investigator was not called to give evidence. I infer that the plaintiff was not filmed, or seen by the investigator, to engage in any other activities inconsistent with his evidence. The activities seen in the photographs were not activities which the plaintiff had denied engaging in. I did not find the photographs damaging to the plaintiff's case.

64. The plaintiff's wife generally supported the plaintiff, though she gave her evidence in very general terms. She confirmed that she had developed a frozen shoulder about the Christmas before the plaintiff's fall, and was unable to undertake heavier duties around the caryard. Her evidence was that the plaintiff enjoyed gardening and that his gardening activities had been reduced. He had not been particularly involved in housework, though he had helped a little, for example hanging washing on the line, after she developed her frozen shoulder. Asked whether there were things which the plaintiff used to do before the fall which she now did she mentioned planting of trees and edging of the lawn at home. She said that they paid someone to come in and spray weeds, and that the two sons helped also. She estimated that she spent eight to ten hours a week undertaking tasks previously attended to by the plaintiff. She did not think that her husband would be able to move into any other kind of business or occupation. Her frozen shoulder had largely recovered by the time of the hearing. It seemed to me that Mrs Dickson exaggerated the time she spent on tasks previously the responsibility of her husband, and the nature of those tasks. As I have previously said in the context of other aspects of her evidence, I did not find her a convincing witness.

65. I find that the plaintiff, in addition to acute but relatively superficial injuries to the legs, suffered a mild neck injury and a severe injury to the low back. I accept that he had degeneration in the lumbar spine before the accident, but that this was asymptomatic and would have remained so until about age sixty when it might have been expected to produce tolerable low back pain. I accept that the fall resulted in injuries at L4-5 and L5-S1 which caused severe low back pain and sciatica resulting in pain and numbness in the legs. I accept that these symptoms have been of marked severity since the fall and that they are likely to remain so. There is in my view little basis for the optimism expressed in some of the medical reports that the plaintiff may recover from these symptoms in five to ten years. It seems to me more likely than not, considering the medical evidence as a whole, that they will persist at their present level indefinitely.

66. I also accept that because of his constant pain, the plaintiff has developed an anxiety depression state, falling short of a recognised psychiatric illness, but requiring antidepressant medication which reduces its impact but does not remove the symptoms entirely. I accept that the plaintiff presents as a different man because of his psychological reaction to his constant pain.

67. It seems to me likely that the plaintiff required considerable domestic assistance during the acute period of three weeks after the accident, and assistance at a reduced level for about three months thereafter. The injuries have created a continuing need in the plaintiff for some assistance from time to time with heavy physical tasks, with which he would have coped without difficulty prior to the fall. He will need to see his general practitioner every six weeks and will need to continue with his Pilates treatment. He may need physiotherapy from time to time. I am not satisfied that he will ever come to surgery. It seems to me highly unlikely that he will give up his present employment in the short term, although the effect of his disability is likely to result in his ceasing work and closing or selling the business perhaps five years earlier than would otherwise have been the case.

The claim for loss of earning capacity

68. In the plaintiff's statement of particulars, the claim is formulated in the following manner:

Past Economic Loss

a) At the date of the incident on 6 October 2000, the plaintiff was the self-employed proprietor of Peter Dickson Motors which was operated by Giona Holdings Pty Ltd ACN 003 511 742 where the plaintiff and his wife were directors. The plaintiff generates 90% of the cashflow of the business.

b) As a consequence of his injuries and disabilities the plaintiff has a diminished capacity to carry out all the physical activities associated with the conduct of his business and continues to suffer a reduced ability to devote his unrestricted fulltime efforts to his business.

c) As a direct consequence of his injuries and the ongoing symptoms he suffers in his low back, neck and lower limbs, the plaintiff's business has been required to incur additional overheads in the form of casual labour to carry out work for his business which but for his injuries the plaintiff would have performed himself. This includes washing and cleaning of motor vehicles, general yard hand maintenance and employing people on commission to search out and recommend the purchase of wholesale motor vehicles.

d) Due to the plaintiff's reduced work capacities since 6 October 2000 and the periods he has been required to take off work, including attendances on specialists, his treating doctors, physiotherapist, psychologist and Pilates exerciser, the plaintiff has been unable to maximise the promotion and the sales in his business. As a consequence the plaintiff's business, of which he is a director and the generator of 90% of the income, has suffered a downturn in its otherwise anticipated profitability. In the year prior to the accident the company's taxable income was $16,354.00. In the year ending June 2000 the taxable income of the company was $3,437.00 and in the year ending June 2001 the taxable income was $4,327.00. It is alleged that the taxable income has reduced by reason of the plaintiff's inability to promote his business and to be on site in order to sell the motor vehicles in the course of that business. The plaintiff therefore makes a claim between 6 October 2000 and 30 June 2001 in the sum of $20,000.00 being the difference between what the company was able to earn prior to the plaintiff's injuries and what it has in fact earned since the plaintiff was injured. The plaintiff claims a continuing loss based on this aspect of the claim from 1 July 2001 to date and continuing at a weekly rate of $240.00.

e) The plaintiff's claim for past economic loss in respect of the additional wages and superannuation paid to casual employees to perform duties otherwise performed by the plaintiff between 6 October 2000 to date making a claim of $8,361.00 and continuing at the rate of $196.00 per week. In addition the plaintiff claims that he is required to pay commission to Ray Martyn Autotraders at the rate of $220.00 per vehicle located by that firm for and on behalf of the plaintiff's business in the wholesale car industry. This is the sort of work the plaintiff would have been able to do prior to his injuries but which he now has to employ other people to do on commission. The plaintiff therefore claims on average a loss of four to six commissions per month from the date of the accident to date and continuing at the rate of $220.00 commission for each vehicle.

Future Economic Loss

a) As a direct consequence of his diminished work capacity resulting from the injuries and disabilities sustained by the plaintiff on 6 October 2000, the plaintiff will continue to be required to employ a casual employee to perform work two days a week that, but for his injuries, the plaintiff would have performed himself. The plaintiff claims a continuing loss of $196.00 per week pursuant to the particulars contained in (b) above as well as the loss of commission he has to pay out being on average $250.00 per week.

b) The plaintiff claims a buffer in respect of his probable past and future loss of earning capacity due to the ongoing entrepreneurial loss from clauses (d) and (e) above.

69. Evidence in relation to this aspect of the claim was given by the plaintiff and his wife, and by their accountant, Mr W L Williams. The plaintiff and his wife purchased the land on which the business is conducted in 1991. They lease the property to Giona Holdings Pty Limited, a company of which they are the shareholders and directors, and which carries on business as Peter Dickson Motors. The company employs the plaintiff and his wife to manage the business. They are paid equal salaries. Any profit made by the company is paid out to the plaintiff and his wife by way of dividend. The accountant, Mr Williams, prepares financial statements and tax returns each year on behalf of the four entities: the partnership between the plaintiff and his wife as lessors, the company, and the plaintiff and his wife as individuals.

70. The plaintiff's evidence is that the most important part of the business, as he sees it, is the selection and purchase of stock in the form of second hand cars. He was in the habit, prior to being injured, of driving to Sydney and attending used car auctions on two days each week on average. His practice was to leave home very early in the morning to drive to Sydney, and to drive back to Canberra at night, even if he was to attend further auctions in Sydney the next day. Following his injuries, he says that he drives to Sydney and attends auctions once or twice a month. He finds that he has to stop, usually on two occasions, on the way to Sydney because his back locks up. The auction houses he attends occupy very large areas, and the selection of cars involves him in a lot of walking, as well as bending and getting under cars as he inspects them. He had had an arrangement since well before the accident with Mr Ray Martyn, a commission agent, to attend auctions in Sydney and bid when the plaintiff is unable to be there, perhaps because there are two auctions at different places at the same time. Mr Martyn would sometimes identify a car he thought might be of interest to the plaintiff, and would telephone him and ask for instructions. At other times, the plaintiff might already have selected a car and would ask Mr Martyn to bid at auction on his behalf up to a specified figure. The arrangement was that Mr Martyn would be paid a commission of $200.00 per car purchased. After 1 July 2000, this was increased to $220.00 to cover GST, though the company was able to recover any GST subsequently as an input credit.

71. The plaintiff also says that the business now employs a person for two days a week to wash and vacuum cars, clean windows, paint tyres and check oil and water, at a cost of $160.00 to $170.00 per week.

72. In cross-examination, the plaintiff said that he generally dealt with customers, although his wife also did so occasionally. Her principal task was bookkeeping and administration. Until 1996, the business employed casual staff in addition, but from then until the plaintiff's injury there were no casual employees. The plaintiff played no part in bookkeeping or record-keeping for the business. The business purchased and sold what the plaintiff described as bread and butter cars, family cars like Holdens, Fords, Toyotas and Mazdas. They did not deal in expensive or luxury cars. The maximum price they would go to was about $30,000.00. The plaintiff's estimate is that before his injury, the business sold about fifteen to twenty cars per month. The plaintiff said in chief that Mr Martyn bought on his behalf, prior to his injury, sixty to eighty vehicles a year, and after his injury, he thought one hundred to one hundred and twenty vehicles per year. In cross-examination, he said that he had misunderstood the question, and that Mr Martyn had sourced something like one hundred to one hundred and twenty vehicles for him over the period of three and a half years since the accident. Counsel for the defendant put it to him that this figure was exaggerated, which he denied.

73. The plaintiff was extensively cross-examined from financial statements and tax returns produced by his accountant in relation to Giona Holdings Pty Limited. Asked to agree with the proposition that the plaintiff's salary from the company was greater for 2000-2001 than for 1999-2000, the plaintiff's answer was "my accountant is the guy that's going to have to explain that because in our wages we also have the rental factor from the property coming back into our wages account." He agreed that the company issued a group certificate each year to him, setting out details of his salary and deducted tax. He was asked whether he was suggesting that the group certificate included the rent paid by the company to the plaintiff and his wife. He said that he could not answer the question because he was not qualified to do so and was not an accountant, and that he did not know how the accountant calculated the wages, though he had a fair idea that part of the wages had something to do with the rental from the property. The plaintiff continued to answer questions about the financial records of the business in a similar fashion, and I had a suspicion that he was deliberately obfuscating. However, the accountant Mr Williams, in his subsequent evidence, described the plaintiff as a very good second-hand car salesman but a babe in the woods when it came to understanding financial numbers and accounts. This was confirmed by the plaintiff's wife, who said that her husband was not involved in bookwork and was hopeless at that side of things. She had suggested that he become more involved in the financial side of the business, but he showed no interest, saying that he was busy with buying and selling and did not have time. I accept that this evidence is generally accurate, and that the plaintiff has a poor understanding of the structure of the business and the financial statements of the entities involved. The plaintiff's evidence about the number of cars he had purchased through Mr Martyn, both before and after his accident, was inconsistent with the records produced, and I am satisfied that the records are accurate and to be preferred to the plaintiff's evidence in that regard. I am not sure that the plaintiff deliberately gave false evidence, and think it equally likely that he was pitching his case, somewhat carelessly, rather higher than was justified, as one might in negotiations for the sale of a second-hand car. This portion of his evidence has caused me to have some doubts about his credibility generally as to matters of detail.

74. Mrs Dickson was cross-examined about the financial statements of the business. She sought to give evidence that the profitability of the business had dropped dramatically, but appeared to me to have little grasp of detail or of the overall financial position of the entities involved. She insisted that profitability had been badly affected, but on matters of detail answered a number of questions "you'd have to ask the accountant, I don't know" and to similar effect. I was left with the impression that although Mrs Dickson for a number of years has been responsible for entry of figures into the books of the business, the raw data has been given to the accountant to prepare financial statements and tax returns, and that she has had little understanding of the big picture.

75. Mr Martyn gave oral evidence. He has been involved in the motor trade for more than forty years and is a qualified motor mechanic and authorised vehicle inspector. For about eighteen years up to 1996, he owned and operated a car dealership in Cooma, and he got to know the plaintiff during his time with Bryan Pollock Motors. Mr Martyn moved to the Canberra region in 1996 and started his present business as a commission buyer of vehicles on behalf of country dealers. He regarded the plaintiff as particularly talented as a purchaser and reseller of used vehicles. He had seen the plaintiff on numerous occasions prior to his injury at auctions in Sydney, and had observed him to be extremely thorough in inspecting vehicles prior to bidding. His evidence was that since the accident, the plaintiff was not as thorough, and appeared to be tense. He constantly complained about being in pain. He began to make mistakes in selecting vehicles through not checking them thoroughly, and it appeared to Mr Martin that the plaintiff was relying on his services more than previously. His personality seemed to have changed.

76. Mr Martyn explained that at a particular auction there might be as many as 350 vehicles from which to select possible purchases on behalf of his dealer clients. He would generally represent between six and ten dealers at a large auction, from all over New South Wales, and he would attend six or seven auctions in Sydney each week. Sometimes he would have specific instructions from the plaintiff to try to find a particular model of vehicle at a particular price. At other times, he might come across a vehicle which he thought would be likely to appeal to the plaintiff, and he would telephone the plaintiff and seek his instructions. Mr Martyn volunteered that on one occasion in the six months before the hearing, he was present when the plaintiff made a blunder, purchasing a vehicle which had been damaged in a collision. His evidence about this incident was a little unsatisfactory. He was unable to explain why, if he realised that the plaintiff was bidding for a damaged vehicle, he did not intervene at the time. He gave some general evidence that the plaintiff had made a number of bad blunders with vehicle purchases, and that he believed that the plaintiff was not inspecting vehicles thoroughly. The plaintiff had given no evidence about these blunders and I found Mr Martyn's evidence about them unconvincing. He gave the impression of tailoring his answers so as to assist the plaintiff's case.

77. The accountant, Mr Williams, appeared to concede that the financial statements did not support the proposition that the business had become less profitable since the plaintiff's accident. Whilst agreeing that the financial statements formed the basis of tax returns certified by the plaintiff as correct, his oral evidence was that he came to realise, as the hearing was approaching, that the financial statements did not accurately reflect the profitability of the business. There were two reasons for this. The first was that the 30 June stock-on-hand figures, based on stocktakes, were inflated, and the second was that the comparable figures for the years under consideration had been distorted by the introduction of the Commonwealth goods and services tax (GST) with effect from 1 July 2000. He prepared schedules adjusting the figures to take account of these distorting factors. He agreed that there was no intention on his part or that of the plaintiff or his wife to amend the annual profit and loss statements for the company, or to lodge amended tax returns. He did not suggest that the changes had any effect on the figures for the partnership or the individuals.

78. Prior to the introduction of the GST, it had been his practice as accountant for the company not to include in the accounts figures for trade-ins. This was because the trade-in figures were notional rather than cash figures, and were revenue-neutral. However, after the introduction of the GST, there turned out to be advantages to the company in recording the agreed trade-in figures in the accounts. This had the effect of increasing both sales and purchases in respect of any particular year.

79. Mr Williams also gave evidence that the profit and loss statements did not accurately reflect the profitability of the business after the accident, by reason of the fact that the rent paid by the company to the partnership was an artificial figure, well below market rent. He adjusted the rent figure by applying, in the 2003 year, a 6% Consumer Price Index adjustment, and similar adjustments for other years. The difficulty with this approach is that there was no evidence as to what might have been an arms-length commercial rent for the land. Mr Williams gave evidence that he had seen a similar approach applied to office buildings in Canberra. It does not seem to me that I can safely assume that the rent for a caryard in an industrial area of Queanbeyan varies with the Consumer Price Index, even if it is accepted that values of office buildings in Canberra increase at that rate. It seemed to me that Mr Williams was adopting a formula likely to assist the plaintiff's case without any evidentiary basis for doing so. Mr Williams has been the accountant to the company, the partnership, the plaintiff and his wife, for a number of years and, perhaps not surprisingly, he appeared to some extent to identify with their interests in the proceedings. It has, after all, been his professional role to provide them with business advice over the years with a view to maximising their return from the business, and one cannot help suspecting that he has approached his task in relation to the action from a similar perspective. He would not, I am sure, see himself as an independent expert witness having a paramount duty to the Court overriding any duty to his clients. This is, I think, only to be expected of an expert witness who is in a professional-client relationship with one of the parties to an action.

80. The defendant relied on a report on the letterhead of Horwath (NSW) Pty Limited, a chartered accounting practice in Sydney. The report is expressed in the first person plural and presents as that of the firm rather than any individual expert witness. The report concludes that the plaintiff, on the accounting documentation, has not made out any economic loss other than, on the part of the company, for casual labour and commission expenses, which, according to the report, are a matter for evidence. The report annexes a copy of a circular by a division of the firm to motor-dealer clients in December 2000 which recorded that the effect of the introduction of GST for dealers in used cars was an almost universal fall in gross takings for the September 2000 quarter. Conversely, that quarter saw record sales of new vehicles.

81. The assessment of damages for loss of earning capacity for a plaintiff conducting a business through a company or partnership structure is notoriously difficult. To quote from the leading Australian text on the subject, Assessment of Damages for Personal Injury and Death, Luntz, 4^th Edition, Butterworths 2002, paragraph 5.5.1 (p336)

Where someone is self-employed, or conducts a business through a company or partnership, ascertainment of the loss sustained as a result of injury to that person often presents considerable factual difficulty. Records of earnings are not always maintained in accordance with best accounting practices; annual income tax returns in previous years, if available, frequently show variations from year to year; rates of expansion are not easily predicted; losses could be due to a general economic downturn . . . Sometimes, notwithstanding the plaintiff's absence through injury, profits of an established business are not less than in previous years and it is impossible to say what difference, if any, the plaintiff's presence would have made . . . The court has to do the best it can in such circumstances to measure the loss that is due to the injury.

This case illustrates some of the difficulties adverted to in that passage, even though the plaintiff has not had time off work.

82. The High Court of Australia in Husher v Husher (1999) 197 CLR 138 endorsed the principle that where a plaintiff exercises his or her earning capacity through a corporate or partnership structure with a view to reducing the impact of taxation, damages should be assessed on the basis of the full value of the plaintiff's earning capacity, and should not be restricted to an amount calculated by reference to the plaintiff's taxable income. That principle was readily applicable in Husher, where the plaintiff was in partnership with his wife but was in practical terms a sole tradesman with no employees. The position in the present case is complicated by the fact that the plaintiff's wife worked full time in the business, and that from time to time, the business employed other people. I am nevertheless satisfied that the plaintiff was the principal of the business enterprise, responsible for selecting and purchasing stock and primarily responsible for sales. True it is that Mrs Dickson came to work with the plaintiff every morning and went home with him every evening, and that she worked full time in the business, but her responsibilities were such, it seems to me, that she could readily have been replaced by a salaried employee. The same was not true of the plaintiff. Without the plaintiff, it would not have been feasible for his wife to employ someone to undertake his tasks, and otherwise to run the business herself. It seems to me that the assertion in the particulars that the plaintiff generates 90% of the cash flow of the business is, whilst impossible to test, almost certainly exaggerated. At the same time, I am satisfied that the plaintiff is essential to the continued operation of the business, and that his wife is not. It seems to me that the business was small enough, and the plaintiff's role within it of sufficient significance, for the Husher principle to be applicable, so that in assessing the plaintiff's earning capacity the Court is not limited to an analysis of his income as emerging from his personal tax returns.

83. I am satisfied that the plaintiff's capacity to undertake the tasks he regularly undertook before the accident has been very considerably diminished. I am satisfied that he has lost much of his capacity to conduct physical inspections of vehicles prior to auction, and much of his capacity to attend to physical work around the caryard such as regular washing of cars. Whilst it is inappropriate to attempt to arrive at a figure on a mathematical basis, it seems to me reasonable and indeed conservative to assess the plaintiff as having had, at the time of his injury, a capacity to earn $600.00 per week after tax, and I propose to adopt that figure in calculating his earning capacity, without making any inflationary adjustment to the date of judgment. It is reasonable to assess him as having lost 25% of his earning capacity, which I value at $150.00 net per week. It is 225 weeks since the plaintiff's fall, and I assess his past loss at $33,750.00 plus interest of $6,500.00.

84. In respect of future economic loss, I have previously said that I think it likely that the plaintiff will retire as age 60 rather than 65. He is now 50. The multipliers are 452 for ten years and 632 for 15 years, assuming 3% interest. After making an allowance for the vicissitudes of life, I allow $90,000.00 for loss of earning capacity for the future.

85. I am not satisfied that it is appropriate to make any further allowance in an award of damages for the plaintiff, for any sum to represent additional expenses paid by the company, whether for casual wages or additional commissions. To the extent that any such losses by the company might have affected the plaintiff's earnings, they should be regarded as reflected in the above figures.

Damages - other components

86. An appropriate figure to compensate the plaintiff for pain and suffering, past and future, and loss of amenities, is in my view $60,000.00 of which $30,000.00 should be apportioned to the past, attracting interest of $3,000.00.

87. In the particulars, the plaintiff claims, for assistance from his family (Griffiths v Kerkemeyer) $600.00 for the first three weeks and $3,040.00 for the next five months, and continuing at $40.00 per week. The claim is based on an hourly rate of $20.00. I indicated during the hearing that I would be prepared to allow $15.00 per hour without evidence, on the basis of common experience, and both parties indicated they would be content with this figure. I have earlier said that I would make an allowance for the acute period and for the ensuing three months. I allow $500.00 for the acute period plus $1000.00 for the next three months, and a further $1,000.00 for the period of almost four years since, to cover the heavier tasks with which the plaintiff would have needed assistance from time to time, a total of $2,500.00. I award interest on that sum of $500.00. For the future, I make a generalised allowance of $2,500.00.

88. I am satisfied that the treatment expenses claimed should be allowed in full, with the exception of the claim for the Neikken Wellness Sleep System, the need for which was not supported by any expert evidence. In particular I am satisfied that the cost of the Pilates treatment should be allowed, having regard to the support for this therapy by Dr Sanderson and Dr Giblin. The amount claimed should be adjusted to take account of the period since the hearing. I allow treatment expenses of $12,000.00. The evidence was a little unclear as to how much of the total of treatment expenses had been paid by the plaintiff, and there was no evidence as to dates of payment. I make a generalised allowance of $600.00 for interest on treatment expenses. The claim for travelling expenses, using the plaintiff's own motor vehicle or vehicles, I thought was perhaps a little inflated but I allow $3,000.00 for travelling expenses, plus $500.00 for interest.

89. For the future, the plaintiff will need to see his general practitioner every six weeks and will continue to incur chemist expenses. He may need physiotherapy from time to time, and there is a possibility, which I regard as remote, that he may ultimately come to surgery. For future treatment expenses I allow $7,500.00.

90. The individual components of the assessment of damages are as follows:

General damages $60,000.00

Interest $3,000.00

Past treatment expenses $12,000.00

Interest $600.00

Travelling expenses $3,000.00

Interest $500.00

Future treatment expenses $7,500.00

Past loss of earnings $33,750.00

Interest $6,500.00

Future economic loss $90,000.00

Griffiths v Kerkemeyer - past $2,500.00

Interest $500.00

Griffiths v Kerkemeyer - future $2,500.00

Total $222,350.00

91. The total appears to me to represent an appropriate reflection of the impact of the injuries upon the plaintiff.

Liability - factual findings

92. Most of the facts are not in dispute. It is common ground that the plaintiff, while mowing the grass outside his caryard, stepped on a lid of a Telstra pit, and that the lid collapsed under his weight. There is no issue that he fell into, or partially into, the pit, and that he was injured. It is not suggested on behalf of the plaintiff that there was anything about the appearance of the pit which gave any hint of its instability or danger.

93. I accept the evidence of Mr Hitchin, the retired Council engineer, that the sewerage line and pit have been in place for many years, though it seems to me likely that its lid and surround were replaced at some point in the late 1980s. It is possible that this process caused some disruption to the soil around the Telstra pit.

94. I accept the evidence of Mr McDiarmid that the Telstra pit had probably been in place for thirty or forty years, though clearly its lids had been replaced at some point during the Telecom era, between 1975 and 1993. There is no evidence which would enable me to find that, at the time of replacement of the lids, there was anything obvious about the condition of the pit which should have put the defendant, or Telecom as it then was, on notice that the pit was unsafe or dangerous, or likely to become so: nor was that suggested by counsel for the plaintiff.

95. It was submitted on behalf of the plaintiff that I should draw inferences adverse to the defendant from the fact that Messrs Humphries, Little and Butler were not called. I am not satisfied that there is any basis for me to infer that the evidence of Mr Little or of Mr Butler would be likely to have been of any assistance to the defendant's case. There is no suggestion that either of them had any direct knowledge of the pit. Mr Little seems to have done no more than complete an instruction to have contractors inspect and if necessary replace the pit, on the recommendation of Mr Humphries. Mr Butler seems to have done no more than endorse Mr Little's instruction.

96. As to the fact that Mr Humphries did not give evidence, it seems to me that I can do no more than find that the evidence of the plaintiff and his wife about their conversations with Mr Humphries, and his attendance at the site, was accurate. According to that evidence, Mr Humphries told them that he was new in Queanbeyan and had been there only a couple of months. It was not suggested that his statement to that effect was false. Accepting it to be true, I cannot see what evidence Mr Humphries might have been expected to give which could have advanced the defendant's case or damaged that of the plaintiff. I cannot see that there is any available inference to be drawn from the fact that Mr Humphries was not called in the defendant's case.

97. The principal significant evidentiary conflict relates to the evidence of the plaintiff and his wife that they saw two Telstra employees at the pit, with the lids off and one of them in the fit, four to six weeks before the fall. I have already explained my reasons for finding Mrs Dickson to be an unconvincing witness. Both she and the plaintiff have much to gain from the acceptance of that piece of evidence. I accept from the evidence of Mr McDiarmid that it is at odds with the defendant's records, and that there was at the time no reason for Telstra employees to have required access to the pit. If it had been true, it is something which I would have expected both the plaintiff and his wife to have had at the forefront of their minds on the day of the fall. If it was true, I would expect both of them to have been very much aware that the pit into which the plaintiff fell was a Telstra pit and not a Council pit, and I would have expected them to telephone Telstra rather than the Council. If it was true, I would have expected them to tell Mr Hitchin about it when he arrived at the site shortly after the fall. If it was true, I would have expected the plaintiff to have told his solicitors about it, so that it would have formed part of the instructions they gave to Mr Dohrmann. If it had been true, I would have expected the plaintiff to have told Mr Dohrmann about it during their preliminary telephone conference, and to have discussed it at length during Mr Dohrmann's site visit. Having regard to all of these factors, I am not satisfied that the incident happened. I think it more likely than not that there was no such incident. This does not amount to a finding that either the plaintiff or his wife gave deliberately false evidence about it. It may well be that each of them believed their evidence about the incident to be accurate, but the plaintiff bears the onus of satisfying the Court on the balance of probabilities that it happened, and he has failed to discharge that onus.

98. As to the evidence by Mrs Dickson that she had seen Telstra technicians on a number of occasions in the area, I accept that evidence but think it more likely than not that the technicians were working at the larger pit to the south of the plaintiff's property, or the adjoining post.

99. It follows that I am not satisfied that any Telstra employee opened the pit into which the plaintiff fell at any time when internal damage to the pit might have been apparent. Having regard to the number of Telstra pits in Australian and even in Queanbeyan, it does not seem to me reasonable to have expected the defendant to have had a system of regular pit inspection which might have detected the danger. In any event, no such system, or breach of it, is pleaded.

100. In summary, it seems to me likely that the pit was initially safe and free from defect. At some indeterminate time, probably over an extended period, it became unsafe and dangerous. The defendant was unaware of this. The defendant did not behave unreasonably in relation to the pit in failing to inspect it and identify the defect, in the absence of anything to suggest that such a defect might be present. It follows that I am not satisfied that the defendant did anything, or failed to do anything, which was capable of amounting to a breach of its duty of care to the plaintiff as a person who, from time to time, lawfully and reasonably walked over the lids of the pit.

101. The plaintiff has failed to establish any negligence on the part of the defendant. There will be judgment for the defendant. I shall hear the parties as to costs, including the reserved costs of the application for removal of the proceedings from the Magistrates Court.

102. Although the cause of action arose in New South Wales, it has not been submitted by counsel for either party that there is any difference between the law of that State and the law of the Australian Capital Territory which might be relevant to the determination of liability or the assessment of damages.

I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 14 February 2005

Counsel for the plaintiff: Mr G J Lunney

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr R A Cavanagh

Solicitor for the defendant: Henry Davis York by their agents Elrington Boardman Allport

Date of hearing: 17, 18 March, 28, 29 June, 8 July 2004

Date of judgment: 14 February 2005