Supreme Court New South Wales Medium Neutral Citation: Burnett v Manhattan Homes Pty Ltd [2023] NSWSC 1431 Hearing dates: 26 - 29 June, 9 August, 29 September and 27 October 2023 Date of orders: 24 November 2023 Decision date: 24 November 2023 Jurisdiction: Common Law Before: Schmidt AJ Decision: 1 Judgment for Mr Burnett against Manhattan Homes Pty Ltd. 2 The parties are directed to confer about the final calculations, the terms of the final orders including as to costs and to file proposed orders within 14 days. In the event of any remaining dispute, they should also approach within 14 days and file and serve an outline of submissions addressing that dispute. Catchwords: NEGLIGENCE — duty of care — reasonable foreseeability of harm — construction site — plaintiff fell three metres from first story to ground below —statutory notification of incident under Work Health and Safety Act 2011 (NSW), ss 19, 35, 38 — whether notification was an admission under Evidence Act 1995 (NSW), s 82 — whether defect in void protection known — whether plaintiff's use of uncompleted stairs reasonably foreseeable — whether risk of fall and resulting harm reasonably foreseeable — breach of duty established NEGLIGENCE — liability — occupier and subcontractor — duty to exercise reasonable care in relation to safety of building site and to persons coming onto site to avoid foreseeable physical injury — causation — whether injury the result of unauthorised acts of contractor — occupier liable NEGLIGENCE — liability — employer and employee — plaintiff sole director and employee of second defendant — where plaintiff knew of defect in void protection — second defendant's breach of non-delegable duty of care to plaintiff as employee established — whether plaintiff also negligent or his actions resulted from inadvertence — inadvertence established NEGLIGENCE — contributory negligence — not established where plaintiff's actions the result of inadvertence CIVIL PROCEDURE — cross-claims — contribution or indemnity between defendants — Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c) — Workplace Injury Management and Workers Compensation Act 1987 (NSW), s 151Z Legislation Cited: Civil Liability Act 2002 (NSW), ss 3, 5B, 5C, 5D, 5E, 5R, 5S, 1, 13, 15, 16, Div 8 Evidence Act 1995 (NSW), ss 69, 81, 82, 87, 136 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Work Health and Safety Act 2011 (NSW), ss 19, 35, 38, 39 Workers Compensation Act 1987 (NSW), s 151Z Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 4 Cases Cited: Amante v R [2020] NSWCCA 34 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 Blacktown City Council v Hocking [2008] NSWCA 144 Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13 Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343 Commonwealth of Australia v Helicopter Resources Pty Ltd (2020) 270 CLR 523; [2020] HCA 16 Donald v McKeown [2004] NSWCA 285 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fox v Wood (1981) 148 CLR 438; [1981] HCA 41 Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Holland v Jones (1917) 23 CLR 149; [1917] HCA 26 Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Jones v The Queen (1997) 191 CLR 439; [1997] HCA 56 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60 Mead v Kerney [2012] NSWCA 215 Miller v Galderisi [2009] NSWCA 353 Nominal Defendant v Livaja [2011] NSWCA 121 Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460 Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALJR 492 Rabay & Anor v Bristow [2005] NSWCA 199 RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Stevens v Broadribb Sawmilling Co Pty Ltd (1986) 160 CLR 16; [1986] HCA 1 Sungravure Ply Ltd v Meani (1964) 110 CLR 24; [1964] HCA 16 The Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 The Nominal Defendant v Lane [2004] NSWCA 405 The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 Verryt v Schoupp [2015] NSWCA 128 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Watson v Foxman (1995) 49 NSWLR 315 Texts Cited: Harold Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002, Butterworths) Safe Work Australia, Construction work: Code of Practice, (May 2018) Category: Principal judgment Parties: Gary Burnett (Plaintiff) Manhattan Homes Pty Ltd (First Defendant) The Griswold's Outdoor Xmas Pty Ltd (Second Defendant) Representation: Counsel: R Sheldon SC and E Welsh (Plaintiff) J Sleight (First Defendant) I Todd (Second Defendant) Solicitors: Brydens Lawyers (Plaintiff) McMahons Lawyers (First Defendant) Turks Legal (Second Defendant) File Number(s): 2020/207227 table of contents Conclusion Issues Facts Not in issue In issue Other issues Not in issue In issue Was the statutory notification Manhattan gave an admission? Manhattan's notification fell within the statutory definition Manhattan's report involved admissions The credibility and reliability of Mr Burnett's evidence – the cause of the accident and the extent and consequences of the injuries he suffered The Inspector's evidence Mr Burnett's evidence was credible and reliable Did Mr Burnett have any memory of the fall? The parties' cases Mr Burnett did have a recollection of his fall Mr Burnett's evidence about how he came to fall must thus be accepted Manhattan's claimed negligence Applicable principles The parties' cases on duty The duty Did Manhattan breach its duty? What Manhattan's duty generally required The ladder Was there a defect in the void protection? Ought the defect in the void protection to have been known by Manhattan on 27 February 2019? Was the risk of a fall from the first floor to the ground floor in the stair void reasonably foreseeable? Was it foreseeable that Mr Burnett would attempt to use the stairs as he intended when he fell? Breach is established There was a failure to exercise reasonable care What precautions would a reasonable person have taken? Negligence is established Griswold's claimed negligence Griswold's negligence is also established Causation Was Mr Burnett contributorily negligent or only inadvertent? Contributory negligence is not established Apportionment of damages for negligence Manhattan's contributions to the workers compensation payments made by Griswold's and/or indemnity Damages The injuries Mr Burnett suffered as the result of his fall Non-economic loss The parties' cases The evidence The lay evidence The expert evidence Non-economic loss must be assessed to be 45% Past economic loss The parties' cases The evidence Mr Burnett's past economic loss cannot be calculated in the way for which he contended Future economic loss Applicable principles The parties' cases The evidence Mr Burnett has no future earning capacity Mr Burnett does not have the capacity to do the work he formerly did for Manhattan and Griswold's Mr Burnett's capacity for other work Future economic loss is established Past out-of-pocket expenses Future out-of-pocket expenses The parties' cases This claim is established Past care The principles The evidence The claim is established Future care The parties' cases There must be damages for future care Judgment for Mr Burnett Costs Orders JUDGMENT 1. On 27 February 2019, Mr Burnett was seriously injured while working at a construction site where Manhattan Homes Pty Ltd was building a double storied family home, when he fell from the upper floor to the ground floor below. He has not worked again. He now seeks damages for his injuries and their ongoing consequences, which he claims were the result of the negligence of both Manhattan and his employer, The Griswold's Outdoor Xmas Pty Ltd, Manhattan then having had control of the worksite and the trades people and contractors engaged to work there. 2. Mr Burnett's claims are defended. That he was contributorily negligent is also pleaded, which he denies. Manhattan and Griswold's have also both brought cross-claims against each other, which they also both defend. 3. Mr Johnson was Manhattan's working director and Mr Burnett was both the sole director of Griswold's and its employee. Manhattan claims that as Mr Burnett's employer, Griswold's owed him a non-delegable duty of care, which it breached. It thus also seeks indemnity from Griswold's for any damages awarded against it under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) or in the alternative, a contribution to any judgment entered against it. 4. For its part, Griswold's accepts the nature of the duty it owed Mr Burnett, but seeks indemnity and/or contribution under the Law Reform (Miscellaneous Provisions) Act from Manhattan, which it claims breached the duty it owed Mr Burnett and was primarily responsible for the injuries which he suffered as a result. It also advances claims against Manhattan in relation to workers compensation payments it has made to Mr Burnett: s 151Z of the Workers Compensation Act 1987 (NSW). Conclusion 1. For the reasons which follow, I am satisfied that judgment must be entered for Mr Burnett, his claimed contributory negligence not having been established on the evidence. 2. I am also satisfied, however, that Mr Burnett has not established all of the damages which he claimed. The parties also agreed that once these reasons were given, further calculations will have to be undertaken, before final orders can be made. Issues 1. While the parties repeatedly tried to reduce what was in issue between them, over the course of the hearing, the issues developed. 2. Even after the second adjourned hearing, the parties continued their discussions about matters that they were then confident they could resolve. That did not eventuate, with the result a request that the matter be relisted for further directions. That finally resulted in service of further affidavits and after further directions, a limited agreement in relation to past expenses communicated to the Court only in November 2023. Facts Not in issue 1. Before Mr Burnett gave his evidence various facts were agreed. Namely: "1. The defendant, Manhattan Homes Pty Limited was the principal contractor of a residential construction site at 7-9 Shorebird Parade, Greenhills Beach, NSW. 2. Manhattan had subcontracted the various work to The Griswold's Outdoor Xmas Pty Limited, the cross-defendant, of which the plaintiff was a sole director. 3. On the site, Manhattan as principal contractor was constructing a two storey timber framed dwelling. 4. During construction, the staircase void on the first floor was initially protected by floor sheeting supported by steel bars or joists (the void protection). 5. The void protection was installed by Safeworx Group Pty Limited. 6. The void protection had been installed when the frames of the dwelling had been erected prior to the accident. 7. On 27 February 2019, the plaintiff sustained injuries when, attempting to use the stairs, he fell." 1. During his cross-examination, Mr Burnett also made a number of concessions contrary to his interests, both about the circumstances in which he was injured and what surveillance footage which he was shown established. They shed light on his current physical capacity and the domestic assistance he received from his wife. His concessions also reduced what was in issue, establishing that: 1. on the day of his accident, when he used the stairs before his fall from the top floor, Mr Burnett saw that a steel bar supporting boards which covered the void near those stairs had been removed, with the result that he knew that boards near the stairs were no longer supported; 2. while this posed a safety risk, he did not raise this with Manhattan or anyone else; 3. he used the unfinished stairs that day, rather than a ladder which had previously been used to access the first floor; 4. he could have used a bucket and rope to lower tiles he had removed from a bathroom to the ground floor, rather than using the stairs; 5. despite the very serious injuries he suffered when he fell from the first floor, his health continued to improve after the accident to the point, for example, where he was able to use a whipper snipper in the garden, carry shopping and climb a ladder; 6. the domestic assistance his second wife, Ms Sukwong, provides him would be provided even if he had not been injured in the fall. In issue 1. Facts in dispute were identified at the outset to be: "8. Whether during construction whilst the void protection was in place access to the first floor was a ladder. 9. Whether the top of the ladder penetrated the first floor through an access hole that was covered by a trap door. 10. When and was the void protection rendered unsafe and by whom? 11. Was the alternate means of access provided by the ladder in place on the 27 February 2019?" 1. Given the evidence of Mr Burnett and Inspector Holder, the SafeWork NSW inspector who investigated his fall, and the photographic evidence led, there can be no question that at the time that Mr Burnett fell, while not in use, the top of the ladder still penetrated the first floor void protection through an access hole that was covered by a trap door. The inspector's evidence was that when he inspected the site some days after the incident the trap door was screwed shut. Other issues 1. At the commencement of the hearing, the parties also identified other matters which were and were not in issue. Further issues, including as to the credibility and reliability of Mr Burnett's evidence, emerged during the hearing. Not in issue 1. Initially, an evidentiary statement made by Mr Johnson was included in the court book and referred to in Manhattan's written opening submissions. But after evidence was given by Inspector Holder, who had visited the building site in response to Manhattan's notification of the incident to SafeWork, Manhattan announced that Mr Johnson would not be called and his statement was withdrawn. 2. Manhattan did not call any other lay witnesses who could have given evidence about what lay in issue between the parties. As a result, there was no issue between them that Jones v Dunkel inferences would be drawn against Manhattan. That was because it gave no explanation for why those who could have given evidence relevant to its case, who it might be reasonably expected it would call, were not called: RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]-[96]. 3. The result is that while the absence of such witnesses may not fill in gaps in the evidence, Manhattan's forensic decision does permit the inference to be drawn that their evidence would not have helped its case. This inference may be used in deciding first, whether to accept any particular evidence given, either for or against it, which relates to a matter about which such a person could have spoken, and secondly, whether or not to draw inferences of fact which are open in relation to matters about which that person could have spoken: RHG Mortgage Limited at [79]. In issue 1. Other matters in issue between the parties were identified at the outset to be: "12. Was the risk of the plaintiff falling from the first floor to the ground floor in the stair void reasonably foreseeable to an entity in the position of the Defendant? … 13. Did Manhattan know or ought it to have known that there was a risk of harm to the plaintiff by the void protection being not reasonably safe (the risk of harm)? In other words, in all the circumstances, was the risk of harm foreseeable to Manhattan? 14. In all the circumstances, was it foreseeable that the plaintiff would attempt to use the incompletely constructed stairs? 15. Was there a patent defect to the void protection on the 27 February 2019 such that it was or ought to have been known to: (a) the plaintiff; (b) Manhattan; (c) Griswold. 16. If yes, in all the circumstances, what precautions would a reasonable person in the position of (a) the plaintiff; (b) Manhattan; (c) Griswold have taken against the risk of harm? 17. The respective culpability and causal potency of Manhattan's conduct and that of the plaintiff so as to effect a just and equitable reduction of damages, if any, claimed by the plaintiff. 18. The respective culpability and causal potency of Manhattan's conduct and that of Griswold so as to effect a just and equitable apportionment of liability, if any, between them as joint tortfeasors." 1. It emerged at the hearing that it was Manhattan's administration officer, Ms Cameron, who had given its statutory notification of the incident to SafeWork. Whether what was notified constituted an admission under the Evidence Act 1995 (NSW) was also finally in issue. 2. It is convenient to begin with that issue, Manhattan's statutory notification supporting as it does Mr Burnett's evidence about how he came to fall from the first floor to the ground below. Was the statutory notification Manhattan gave an admission? 1. Under the Evidence Act, the hearsay and opinion rules do not apply to admissions: s 81. An "admission" is there defined in the Dictionary to mean "a previous representation that is— (a) made by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceeding), and (b) adverse to the person's interest in the outcome of the proceeding." Manhattan's notification fell within the statutory definition 1. The Work Health and Safety Act 2011 (NSW) imposes duties of care in respect of work health and safety on entities such as Manhattan: s 19. An incident involving serious injury to a person is defined to be a "notifiable incident": s 35. A further duty is imposed on those who conduct a business or undertaking to ensure that notifiable incidents are immediately notified to SafeWork, by the fastest possible means and also to keep records of such incidents: s 38. 2. Manhattan's statutory notification was given by telephone by Ms Cameron and was recorded in SafeWork records which are in evidence. Manhattan did not tender the records it had itself kept of the incident. Nor did it lead any evidence to suggest that the notification Ms Cameron gave was inaccurate, or that she had no authority to make it. 3. The person who has management or control of the workplace at which an incident happens also has a duty to ensure, so far as is reasonably practicable, that the site of the incident is not disturbed until an inspector arrives or any earlier time that an inspector directs: s 39. SafeWork records show that after Manhattan notified the incident, it directed that the site not be disturbed, but the evidence establishes that this was not complied with. 4. Manhattan called no evidence to explain this or to challenge the accuracy of the records SafeWork kept. 5. There is no suggestion that Griswold's gave any notification to SafeWork. That accords with Mr Burnett having been taken to hospital by ambulance soon after his fall, having been assisted by another worker on site who came to his aid. He had suffered multiple injuries, including to his brain and spine. Hospital records reflect that as a result, he suffered amnesia for some 21 days, underwent surgery to his spine and a long period of rehabilitation and was not discharged until May 2019. 6. The SafeWork Incident Notification Report about Mr Burnett's fall on 27 February 2019 records amongst other things that: 1. Ms Cameron that day reported his fall by phone and Inspector Holder became the allocated officer; 2. the hazard recorded was working at heights and the description of the incident, with my emphasis, was: "Carpenter / maintenance contractor onsite – (Grizwold's [sic] maintenance service) Worker was completing clean up of site, crossing stair void via plank put in place Plank has broken when crossing & worker has fallen around 2.7m to the ground level Landing on head & back Transported to hospital via ambulance"; 1. the site had been partially disturbed in order to assist Mr Burnett, but it had been locked at the time of the notification and was to be preserved; 2. Mr Burnett had suffered a cut to the back of his head, first aid having been administered and that he had been admitted to St George Hospital. It should be noted that this advice did not reflect the seriousness of his injuries; and 3. both Mr Johnson and Ms Cameron were Manhattan's primary contacts. 1. At the hearing there was no objection to the tender of the records SafeWork maintained about the incident, relevant as they clearly were to what was in issue. In final submissions it was accepted that they were business records admissible under s 69 of the Evidence Act. That Manhattan's report to SafeWork had involved any admission, as was Mr Burnett's case, was however, still in issue. Manhattan's report involved admissions 1. Manhattan's report of the notifiable incident, which later became the subject of the claims advanced in these proceedings, was communicated by the representations it had Ms Cameron make. Those representations fall within the statutory definition of an "admission", given that Manhattan later became a party to these proceedings and what it had notified was adverse to its interests in their outcome. 2. Section 82 does not prevent the application of the hearsay rule to evidence of an admission, in certain circumstances. But the report Manhattan made must be taken to be an admission if, when Ms Cameron made the representations which SafeWork recorded, she either had authority to make statements on Manhattan's behalf to SafeWork about the incident it was notifying, or being its employee, her representations related to a matter within the scope of her employment or authority: s 87(1) discussed in Commonwealth of Australia v Helicopter Resources Pty Ltd (2020) 270 CLR 523 at 531-534; [2020] HCA 16. 3. The proper inference to be drawn from all the evidence and Manhattan's failure to lead any evidence to dispute this, is that Ms Cameron did have the necessary authority to give Manhattan's statutory report by telephone as she did and that it was within the scope of her employment to do so. Companies like Manhattan can only act through their officers, employees and agents. It elected to have Ms Cameron make its statutory report and advise SafeWork that both she and Mr Johnson were its primary contacts. 4. Manhattan led no evidence to dispute the accuracy of what SafeWork recorded. 5. What was reported accords with Mr Burnett's evidence that Mr Johnson also had relevant information about the incident, having been on site with the owner earlier on the day Mr Burnett fell. So did the site supervisor, Mr Blencowe, who, on Mr Burnett's evidence, had been on site on the preceding Friday. Also on site on the day of Mr Burnett's fall was the unidentified worker who came to his aid before the ambulance attended. None of these witnesses were called by Manhattan and their absence was unexplained. 6. The proper inferences thus include that: 1. Manhattan's report to SafeWork was made by Ms Cameron, a person with the requisite authority and in the course of her employment; 2. its report was accurate, having been made as the result of steps it took after learning of Mr Burnett's fall to ascertain what had happened, so that it could meet its statutory obligations; and 3. Manhattan's enquiries satisfied it about what it reported, namely, that Mr Burnett fell to the ground below when he crossed the stair void via a plank then in place. 1. It follows that Manhattan is bound by its admissions, which are also supported by other evidence, including some of its own records. 2. It is convenient to note that even if not accepted as involving any admission, the contemporaneous SafeWork records accord with the evidence which Mr Burnett later gave by his statement and oral evidence at trial, about how he came to be injured when he stepped onto an unsupported plank near the stairs. They were also supported by photographic evidence. 3. This is all relevant to the conclusions which I have reached about the credibility and reliability of Mr Burnett's evidence. The credibility and reliability of Mr Burnett's evidence – the cause of the accident and the extent and consequences of the injuries he suffered 1. The inspector's evidence also supports the conclusions which I have reached about Mr Burnett's evidence and so it is convenient to now deal with it. The Inspector's evidence 1. On 1 March 2019, Inspector Holder attended the site, where he made notebook entries and took photographs which were also in evidence. His notification report records that he met with Mr Johnson that day, but his evidence was that Mr Johnson was not present when he first arrived at the site and that he carried out his inspection alone, having found the site and building unlocked. He then found that he could not access the first floor via the ladder, so he also used the unfinished stairs. 2. The inspector was later advised that a partial handrail shown in the photograph which he took that day had been fitted after the accident, in order to make the area safe. 3. Inspector Holder spoke by phone to Mr Burnett in hospital on 8 March, Mr Burnett then advising that he had a fractured back and neck. The inspector visited him there on 14 March. 4. What Mr Burnett then told the inspector included that he had some recollection of the fall; that on that day he had used the stairs which had no handrail; that he could not then exactly recall how he fell, but that the work he had to perform included carrying some broken tiles down the stairs. 5. The inspector's report included: "Summary of events: Carpenter/maintenance contractor onsite - (Grizwald [sic] maintenance service) Sub contractor Mr gary [sic] Burnett was undertaking minor maintenance work in the first floor ensuite, completing clean up of area the IP has used the unprotected (no handrails) [sic] internal staircase, crossing stair void via plank put in place, it appears the IP has slipped off the stairs and flallen [sic] 3.mt to the ground floor slab below landing on head & back Transported to St George hospital via ambulance Nature/ extent of injury: cut to back of head 18 staples Back injuries to T 3 - T 7, TIO - L2 laceration to right forearm broken ribs Collapsed lung. Briefly describe systems of work present prior to incident: internal stairs are installed without a handrail system a stair void cover was fitted but had been tampered with to fit the stairs. The IP was carrying out maintene=ance [sic] work in the first floor ensuite and while carrying some broken tiles down the stairs has fallen to the concrete below." 1. It should be noted that the inspector's conclusions were partially incorrect. I am satisfied that consistent with Manhattan's statutory notification, other evidence of which the inspector was not aware established that Mr Burnett did not slip off the stairs. 2. The inspector, however, concluded that the conduct of both Mr Burnett and Manhattan had contributed to his fall, there then being no handrail installed and Mr Burnett having used the unfinished stairs while there was a risk of falling, which would have been eliminated by the installation of a handrail. 3. The inspector's evidence that he was unable to access the first floor using the ladder and trapdoor, despite using the considerable force he described in his evidence, to try to open it, must be accepted. He explained that he had first sought to use the ladder because he did not consider that the unfinished staircase gave safe access to the top floor, despite the handrail which had by then been installed. When it was not possible to use the ladder, he too accessed the top floor using the unfinished staircase. 4. The note the inspector then made indicates that he found that the trapdoor had been screwed shut, although he could not recall having seen that when he gave his evidence. In his cross-examination, Mr Burnett accepted that such a screw could have been removed, but it is apparent that Manhattan had not done so before the inspector attended, despite the work undertaken on the site which was not to be disturbed. 5. The photo the inspector took shows that some of the boards which had covered the first-floor void and which can be seen in a photo taken in January to which Mr Burnett was taken, which Mr Burnett accepted showed the state of the site before his accident, apart from the missing support, were no longer there at the time of his inspection. In the inspector's photo, some supports are seen to be lying on top of the remaining boards. That is consistent with Mr Burnett's evidence. 6. The inspector's photo also shows that holes in the gyprock walls had been repaired following the removal of supporting beams, which had penetrated the wall. That is not shown in the January photo to which Mr Burnett was taken. A later 8 February photo also depicts those holes. 7. I am satisfied that the proper inference to be drawn is that these holes were repaired after 8 February. The inspector explained how such repairs were made and that they would have taken 24 to 48 hours to dry. It follows that the holes could also have been repaired after Mr Burnett's fall. Mr Burnett's evidence was credible and reliable 1. Both the credibility and reliability of Mr Burnett's evidence were challenged. Manhattan's case was that no orders could be made against it, as Mr Burnett had not established the essential facts on which his case turned, given that he had no real memory of his fall. The result, Manhattan contended, was that he could not establish the cause and manner of his fall, nor, consequently, could he establish its breach of duty or negligence, with the result that Mr Burnett's case had to fail. 2. Credibility and reliability were also raised in the context of the ongoing consequences of the undisputed injuries which Mr Burnett claims he suffered as the result of his fall. While those injuries were established by medical records, the damage he suffered as a result was disputed. 3. Manhattan's case was that Mr Burnett had not only exaggerated his injuries in the histories he had given those who later treated him, but also to experts to whom he eventually gave accounts of what had happened to him, as well as in his evidence. 4. This was disputed by Mr Burnett and Griswold's. They both contended that Mr Burnett's evidence, supported as it was not only by the inspector's evidence but also by various contemporaneous documents, had to be accepted. That conclusion is also supported by the various concessions he made in cross-examination, contrary to his own interests. 5. I am well satisfied that Mr Burnett was both a credible and generally reliable witness, supported as his evidence was by other evidence. 6. In cross-examination, Mr Burnett volunteered concessions against his interest, not only about his knowledge that the board which fell under him was unsupported, but also about his ongoing improvement in what has undoubtedly been a very fortunate recovery from his very serious injuries. Such concessions have also helped to persuade me that overall his evidence must be accepted, including in respect of the damages he pursues. 7. I will deal with the latter evidence in the context of what lies in issue in relation to damages. Did Mr Burnett have any memory of the fall? 1. I am satisfied that Manhattan's case that Mr Burnett does not in truth have a memory of his fall cannot be accepted. Rather, his evidence that he does have some memory of what happened to him is consistent with what he told the inspector while he was in hospital and with his documented recovery from a period of post-injury amnesia, and must therefore be accepted. 2. On Mr Burnett's evidence, he fell when he stepped onto the unsupported board near the staircase, while he was carrying a third load of tiles which he had removed from the bathroom, as Mr Johnson had instructed earlier that day. He had earlier left two other loads of tiles near the top of the stairs, intending then to carry them all down those stairs. 3. Mr Burnett's pleaded claim was that he fell after the platform he stepped on moved. That accorded not only with his evidence, but also with Manhattan's notification to SafeWork that a plank had broken when he crossed it and he then fell to the ground level. He was cross-examined, however, on the basis that he could not recall his fall, which he did not accept. The parties' cases 1. To advance its case, Manhattan relied on authorities which discussed the principles applicable to the resolution of issues about a witness's ability to recall past events, referred to in The Nominal Defendant v Cordin (2017) 79 MVR 210; [2017] NSWCA 6 at [165]. They included: 1. in accident cases, it is a truism that with every day that passes memory becomes fainter and imagination more active. For that reason a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the accident. Thus, contemporary documents are always of the utmost importance, and it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, with motive being one aspect of probability: Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403 at 431; 2. there is a need to take into account the unreliability of human memory, including in the case of eyewitnesses. Two common, related errors are to suppose that the stronger and more vivid a feeling or experience of recollection, the more likely the recollection is to be accurate and the more confident another person is in their recollection, the more likely their recollection is to be accurate. This is because memories are fluid, malleable and constantly rewritten whenever retrieved and especially unreliable when recalling past beliefs, which are revised to make them more consistent with present beliefs. Thus, account must be taken of the stake which parties have in civil litigation, in which the processes themselves subject their memories to powerful biases. They include the effect of the lapse of time; memories being refreshed by reference to other documents, which may include argumentative material not available at the time of the events; and the iterations which statements go through before they are finalised: Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]-[20]. This may "cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events": Gestmin at [20]; 3. thus "the best approach … in the trial of a commercial case is … to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts." The value of oral testimony lies largely "in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth": Gestmin at [22]; 4. "All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience": Watson v Foxman (1995) 49 NSWLR 315 at 319; 5. in a circumstantial case it is necessary for the Court to consider all of the evidence and to draw conclusions from it viewed as a whole: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23], citing Kirby J in Jones v The Queen (1997) 191 CLR 439 at 466-467; [1997] HCA 56; State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 at [89]-[95]; 6. the proper approach is not to examine each piece of circumstantial evidence in isolation to demonstrate particular weaknesses, but rather to view all of the evidence as a whole: Plomp v The Queen (1963) 110 CLR 234 at 242; [1963] HCA 44; The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13 at [46]-[48]; The Queen v Keenan (2009) 236 CLR 397; [2009] HCA 1 at [128]; 7. contemporaneous statements and documents, particularly when relatively spontaneous, are likely to be more accurate than a later recollection of events, made at a time when false memories can intrude; and 8. the value of comparison of evidence with known facts has greater merit than a consideration of witnesses' demeanour and conclusions should as far as possible, rest "on the basis of contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy at [31]. 1. Analysis of Mr Burnett's evidence, Manhattan contended, necessarily led to the conclusion that he had no reliable memory of his fall and accordingly, his evidence could not be accepted. It also cautioned about the reliability of the photographic evidence established, despite that evidence supporting Mr Burnett's evidence. 2. That was disputed by both Mr Burnett and Griswold's. They relied on contemporaneous documents, including Manhattan's report to SafeWork, various business records and photographs which established the state of the void cover and stairs, both before and after Mr Burnett's fall, as well as his concessions, to support their case that Mr Burnett's evidence would be accepted as helping to establish his case. Mr Burnett did have a recollection of his fall 1. Approaching what is in issue about the state of Mr Burnett's memory in light of the principles earlier discussed, I am satisfied that it must be accepted that Mr Burnett did have a recollection of his fall when he spoke to the inspector in hospital, when he gave his later accounts to others and also when giving his evidence. 2. I am also satisfied that Mr Burnett fell as he described in his evidence, when he stepped onto a board which he knew was unsupported, as he approached the stairs, carrying his third load of tiles. 3. While orders under s 136 of the Evidence Act were made by consent as to the truth of the histories Mr Burnett gave to others about how he came to be injured when he fell, those accounts were consistent with his evidence about the cause of his fall and also accorded with Manhattan's statutory notification and what photos established. 4. In his first statement in December 2021, Mr Burnett said that his recollection included that before the stairs were installed, he had been on site when the stair void was completely covered with timber supported by metal bracing, and that a ladder which was covered by a trap door was used for access. That accorded with Stairman's earlier advice to Manhattan. 5. Further, he stated that when he was later on site, a section of the temporary floor bracing was removed to install the stairs; that there were then boards supported by metal beams covering the void, except for where the stairs ascended; and that there was no handrail around the void. That also accorded with Stairman's advice and the photos. 6. Mr Burnett also said that: "13. At the time of my accident a staircase had been installed to access the first floor but there was no balustrade either on the staircase or around the first floor opening for the staircase. The void at the top of the staircase was in part covered with flooring sheets at the time my accident occurred. 14. My accident occurred when I was carrying some tiles from the upstairs bathroom intending to take them downstairs. As I stepped onto the temporary flooring over the void it collapsed and I fell through to the ground floor. … 18. I was intending to step onto the boards and then onto the first or second step of the staircase when my accident happened. My last memory is of walking from the bathroom towards the stairwell. There were temporary flooring boards covering the void up to the edge of the stairwell and I remember suddenly feeling that I was falling. My next memory is of Mick from My Kitchens talking to me and I was lying on the floor asking him to move my legs. I couldn't move my hands or feet and I couldn't feel anything. I was next to the wall on the floor downstairs. There was stuff on me. I do not know what it was. I was too distressed to identify it. I was in excruciating pain." 1. The account which Mr Burnett gave in his first statement, namely that the board moved, accords with what he had claimed in his pleadings. It follows that contrary to Manhattan's case, that the fall was caused by a plank falling was not first claimed by Mr Burnett during his cross-examination. 2. In cross-examination, Mr Burnett insisted he had a memory of these matters. When asked about paragraph 13, his evidence included: "Q. That's a true statement of what the first floor looked like after the installation of the staircase? A. Yes. Q. But the stairs at that stage were not complete in that they lacked a handrail, didn't they? A. Yes Q. As I understand it there was a space in the void covering where the final steps came up to meet the first floor, is that right? A. There was a bit of board cut out, yes. Q. There was a space? A. Yes, cut out. Q. And the steps then ascended up to the first floor? A. Correct. Q. In fact, the staircase was in a sort of L-shape because the long ascent of the staircase was along a wall, wasn't it? A. Yes. Q. Then as it came to the first floor, it took a 90 degree turn to the left? A. Correct. Q. And it was that last section the void cover had been removed, yes? A. Correct". 1. Mr Burnett was then shown the 25 January photo which he agreed depicted the state of the stairs when he fell. It showed that a portion of the void cover had been removed and he volunteered that the steel underneath had been removed, which was not shown on that photo. That, however, was established by a later photo taken in February, to which he was not taken. 2. Mr Burnett was also repeatedly cross-examined about what he had said at paragraph 18 of his first statement. His evidence included that: "Q. On the day of your accident, you'd made two or three trips up the stairs? A No. Q. No? A. You've got that wrong. Q. Sorry. Maybe you can just help me because I read this in your statement and maybe I've leapt to some conclusion. 'I'd made two or three trips to the stairs before my accident occurred'. A. Yes. I didn't go up and down them as you asked. Q. You must've gone up them, though, mustn't you? A. Yes. Q. When you went up them, was that when you noticed that the steel beam wasn't there? A. No. Q. When did you notice that the steel beam wasn't there? A. Not sure. I can see it in this picture dated the 27th. Q. And you were very keen to tell this Court that that picture is the same as it was on the day of your accident but no steel beam, yes? A. Mm. Q. Then you told this Court that you didn't revisit the scene of the accident, you just went back to the site? A. Yes. Q. To be able to tell this Court that there was no steel beam present on the day of the accident, you must've noted its absence before your fall, mustn't you? A. Yes." 1. Later he said: "Q. Just so I'm fair, you must've seen before your accident that the steel beam was not there? A. Yes." 1. Later his evidence was: "Q. When you went up the steps or the staircase on the day of your accident, you knew the job you were going to carry out was to remove or take down waste tiles from the bathroom to the ground floor, didn't you? A. There was a rectification to the bathroom, yes. Q. If we break that down into jobs, one of the jobs you had to do was take tiles that weren't needed downstairs? A. Yes. Q. You chose to use the staircase? A. I loaded - I put piles of broken tiles at the top of the stairs. Q. Initially, the first thing you did that morning is you went onsite and you chose to get to the first floor by using the staircase, didn't you? A. I did. Q. If the ladder had been in place, you'd have an option, wouldn't you, to use the ladder? A. Yes. Q. You knew that the ladder was a safe means of access to the first floor, didn't you? A. Yes. Q. You knew that the staircase was not complete, didn't you? A. Yes. Q. You knew the staircase had no balustrade? A. Yes. Q. When you got to the first floor and you got the tiles together, you decided to use the staircase, didn't you? A. Correct. Q. Yes? A. Well I was loading up tiles at the staircase, yes. Q. But when you were loading up the tiles, if you look at that photograph, were you putting the tiles on the boards, the void‑covering boards? A. No. Q. Were you putting the tiles at the head of the stairs? A. Yes. Q. When you got your third load of tiles, you decided to walk across the void board, didn't you? A. Yes. Q. As a shortcut to the stairs? A. Yes. Q. That's a board that you knew the steel support had been removed from, didn't you? A. At the time I was doing that I had what I needed to go and get to do the job, so I had other thoughts in my mind. Q. Are you agreeing with me that at the time you took that shortcut across the board that covered the void, you knew-- A. No. Q. --that the steel support had been removed? A. No. Q. When did you find out that the steel support had been removed? A. When I fell. Q. I beg your pardon? A. When I fell. Q. You didn't know when you fell that the steel board had been removed, did you? A. The reason of the fall was the steel beam had been removed, yes. Q. I'm not asking you to give a reason why you fell. I'm asking you what you knew at the time. You've told this Court that that steel support had been removed? A. Yes. Q. You could've only discovered that before you fell? A. While walking up the stairs I would've noticed, yes. Q. Yes, while walking up the stairs. So when you decided, you put the first two loads of tiles at the top of the stairs, didn't you? A. Yes. Q. You avoided walking over the board? A. Correct. Q. Then on the third occasion you walked over the board, and had you thought about it, you would've known that the steel support had been removed‑‑ A. Yes. Q. --wouldn't you? A. Yeah. Q. I assume the removal of the steel support would've made the void protection unsafe? A. Correct." 1. All of this evidence was consistent with what the 8 February photo, to which Mr Burnett was not taken, showed and involved concessions made against his interest, namely that he had stepped onto a board which he knew was unsafe, unsupported as it was, that resulting in his fall to the ground below. 2. Attached to Mr Burnett's January 2023 statement was the later photo given to him by Inspector Holder, which had been taken during his inspection. It established that after his fall, a temporary balustrade was installed around the void and up the stairs. Consistent with Mr Burnett's evidence, in this photo even more of the void is uncovered than in the photo he was shown in cross-examination. 3. As a result, there was no issue that the balustrade had been installed only after the incident. 4. In his May 2023 statement, Mr Burnett said that earlier on the day he fell he had seen Mr Johnson and the owner walk up the stairs; that he was removing discarded tiles from an upstairs bathroom and Mr Johnson instructed him to do some work required on a niche there; and that Mr Blencowe was not then on site. 5. In cross-examination, Mr Burnett said that he had not referred to Mr Johnson in his earlier statements, because he had not been asked about him. I can see no reason for rejecting that evidence. 6. It was also put to Mr Burnett in cross-examination that Mr Johnson was not on site on the day he fell. He disagreed and insisted that he did have a memory of him being there and could also remember a conversation Mr Johnson then had with the owner. Mr Burnett also disagreed when it was put to him that he had no memory of such a conversation and that it was a recent fabrication. I accept his evidence, unchallenged as it was by evidence which Manhattan could have called. 7. Mr Burnett was also cross-examined about what he told the inspector. Amongst other things he said: "Q. You told him that you were using the stairs without a handrail, didn't you? A. Yes. Q. You could not recall how you fell, you told him that? A. I did not know where I fell through. Q. I'm suggesting to you that you told the WorkCover inspector you did not recall how you fell. A. Okay. Q. Is that true or not, did you tell him that? A. Yes. Q. You told him that because that was the truth of the matter, didn't you? A. No. Q. So you told him that because that wasn't true? A. No. Q. You told him you did not know, you could not recall how you fell because that was the truth of the matter, didn't you? A. I do not recall how I fell on the, at, on, at that statement, yes. Q. That was just some two and a half weeks after the accident. A. Yeah, yeah. Q. Wasn't it? A. Yes". 1. Mr Burnett was further cross-examined: "Q. I just suggest to you that when you saw the WorkCover inspector, you didn't tell him that, you didn't mention a collapse of flooring to him? A. (No verbal reply) HER HONOUR Q. That's a question. A. All right. I was not in a real good state of mind at the time in remembering all the facts after that". 1. Mr Burnett having a limited recollection when he spoke to the inspector accorded with what his May 2019 hospital discharge papers established. They recorded that in the fall he had suffered a traumatic spinal cord injury; poly-trauma, including the spinal cord injury which resulted in the surgical insertion of screws at two levels in his spine; a traumatic brain injury; multi-level cervical and upper thoracic spine injury; cervical fracture of the C7 laminae requiring immobilisation; chest wall/rib fractures; fracture of the right clavicle; bone contusions; post-traumatic amnesia of 21 days duration and lung collapse. 2. These injuries necessitated multilevel spinal surgery, as well as spinal rehabilitation and respiratory, cardiovascular, bladder, bowel, insomnia, psychological and pain management. His follow up included neuro-psychometric evaluation for brain injury, driving and return to work. 3. Nevertheless, I do accept that Mr Burnett recovered sufficiently to have the memory of his fall he explained in his evidence; according to which he stepped onto an unsupported plank as he was approaching the staircase from the bathroom while carrying a third load of tiles. 4. The evidence which showed that the site had been tampered with after Mr Burnett's fall, to which I will return, supports this conclusion. As does Manhattan's failure to lead evidence about this and other matters relevant to what lies in issue between the parties, from witnesses who could have shed light on those issues. 5. In the face of what Mr Burnett volunteered in his evidence, and other contemporaneous evidence, including Manhattan's report to SafeWork, I am well satisfied that not only did he have the memory of the fall which he claimed, but that his evidence about how he fell has to be accepted. 6. Inspector Holder did not speak again to Mr Burnett after his hospital visit. He concluded from his investigations that he was "carrying out maintenance work in the first floor ensuite and while carrying some broken tiles down the stairs has fallen to the concrete below". 7. That conclusion did not accord entirely either with Manhattan's statutory notification or Mr Burnett's later statements and evidence at trial, which establish that he fell when he stepped onto a board which collapsed under him, despite knowing it was unsupported. 8. Given how the site had been altered before the inspector attended, the conclusions which he reached are understandable. The boards and tiles which fell with Mr Burnett must have been removed when the site was cleaned and the temporary handrail installed. 9. Stairman advised Manhattan that part of the void protection had been removed before the fall, with the result that there were unsupported boards over part of the void, which was not protected by a balustrade. Consistent with Mr Burnett's concessions and the photographs, that was what permitted him to fall as he did. 10. While there was an issue about the use which could be made of the photographs, it must be accepted that in cases such as this they can be of assistance. 11. Photographs can "be descriptive of what a witness says he or she saw, being a representation of the witness' knowledge and observations. But they should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural": Blacktown City Council v Hocking [2008] NSWCA 144 at [169]. Further, "care must be taken to ensure that they are not used as the sole source from which a primary fact is to be inferred where that fact is not revealed on the face of the photographs such as the condition of a structure at a time significantly removed from that when the photographs were taken": at [170]. 12. The photographs in evidence in this case do not suffer from such difficulties. Not only did they shed light on the state of the stairs and void protection before and after Mr Burnett's fall, as both he and the inspector explained in their evidence, but they were also consistent with Manhattan's statutory notification and what its business records establish about the installation and alterations made to the void protection before and after his fall. 13. True it is that the photograph taken by the inspector does not show the site in a state consistent with a board having collapsed when Mr Burnett stepped onto fallen to the ground below the void. But that was not only Mr Burnett's evidence, but what Manhattan reported to SafeWork and there was no issue that at the time of the fall the site was not in the state which the inspector found. 14. I am satisfied that the board must have fallen to the ground below, along with the tiles Mr Burnett was carrying, even though the photograph does not show any of the material which Mr Burnett remembered being covered by when he regained consciousness on the ground floor. Nor do the photos depict the other tiles he said he had placed near the top of the stairs, but not yet taken down. The inspector also did not find such material at the site. 15. The other worker on site who came to Mr Burnett's assistance after he fell could have given evidence about its then state. Manhattan could also have led evidence to explain how it came to make its statutory report and what it did to the site, despite SafeWork's instructions that it not be disturbed when it had the temporary handrail installed. But it did not do so. It must be inferred that such evidence would not have assisted Manhattan's case. 16. That inference supports acceptance of Mr Burnett's evidence. As do the other photographs, which show the state of the stairs and void before Mr Burnett's fall. 17. The photos taken before Mr Burnett's fall confirm that the handrail was only installed afterwards. It was when he was taken to the January photograph that Mr Burnett volunteered that before he fell, he had noticed that the boards near the stairs were unsupported. This is what the 8 February photograph showed, but he was not taken to it. 18. These photos are consistent both with Mr Burnett's description of his fall and what he volunteered in cross-examination, according to which he stepped onto the board from which he fell, despite then knowing that it was unsupported. Mr Burnett's evidence about how he came to fall must thus be accepted 1. There is no question that the post-injury amnesia Mr Burnett suffered for a time must be taken into account in resolving what lies in issue about his memory. But as was accepted by Manhattan, that amnesia did not preclude Mr Burnett from recovering more of his memory of what had happened to him on the day he fell, after he spoke to the inspector. On the medical records, he did have such a recovery afterwards, long before he was discharged. 2. Nor did that preclude him from still having the memory of his fall when he later gave others an account of how he came to be injured, or at the time he made his statement and when he gave his evidence. 3. There were, in reality, only three ways that Mr Burnett could have fallen to the ground floor: by stepping onto an unsupported board covering the void which collapsed under him and then falling into the void to the ground below, as Manhattan reported and was his evidence; by missing a board near the stairs and stepping straight into the void; or by falling from the stairs, which like the void, were not protected by a handrail. 4. That the fall was from partway down the stairs, is not consistent with Manhattan's statutory notification, with the very serious injuries which Mr Burnett suffered, with the inspector's view that there had been a fall from three metres, or with what Mr Burnett remembered. Nor was there any suggestion that he missed the board entirely as he was walking towards the stairs and just stepped into the void, unprotected as it was by any railing. 5. Mr Burnett's claimed memory of stepping onto a board as he approached the stairs for a third time carrying a load of tiles accords with what is revealed by photographs taken before the accident; what Stairman later advised Manhattan about alterations which had been made to the void protection before his fall; with Manhattan's notification to SafeWork; and with what the inspector found. 6. As a result, I am satisfied that it must be accepted that Mr Burnett did have the memory of the fall which he persisted in claiming. In fact eventually, Manhattan actually relied on that memory in advancing its cross-claim. Manhattan's claimed negligence 1. The risk of harm on which Mr Burnett's case was advanced against Manhattan was the risk of someone working on the first floor of its building site falling to the ground floor below and then suffering serious injury as a result. 2. On Mr Burnett's case, such injury was both reasonably foreseeable and not insignificant. There was no issue that the risk of harm from a fall from the first floor to the ground below was significant and would likely result in serious harm. But whether his fall was foreseeable was still in issue. 3. Given the then unsafe state of the void protection, which the photographs put beyond argument, I consider that there can be no question about the existence of that risk. Applicable principles 1. In resolving what lies in issue between the parties as to the various claims of negligence advanced, ss 5B and 5C of the Civil Liability Act 2002 (NSW) must be borne in mind. They provide: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless— (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)— (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence— (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. The parties' cases on duty 1. Mr Burnett and Griswold's contended not only that Manhattan was aware of the unsafe state of the void protection before he fell, but that its duty extended to taking into account that a contracted worker might inadvertently do something unsafe while completing work he is given in the vicinity of the void. 2. Manhattan contended that its duty to Mr Burnett as occupier was qualified, relying on s 5B of the Civil Liability Act. It also contended that Mr Burnett had not taken reasonable care for his own safety and that it was not vicariously liable for the unauthorised acts of an independent contractor such as him: Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 at 577-578; [1994] HCA 13. 3. Further, unless there were grounds to suspect unauthorised interference, negligent removal of the void protection by an unknown party did not fix Manhattan with liability: Parkview Constructions Pty Ltd v Abrahim [2013] NSWCA 460. 4. This was disputed. The duty 1. I am satisfied that Manhattan did owe Mr Burnett the duty of care he claimed, given the not insignificant risk of a worker such as he falling some three metres from the first floor into the unprotected void to the ground below and as a result, suffering catastrophic injury, or even death. It thus owed workers who came onto its site a duty to take reasonable care for their safety when working in the vicinity of the void. 2. While Manhattan relied on what was decided in Burnie, it must be noted that what there arose for consideration was far removed from this situation. The negligence alleged there involved damage caused to a very large quantity of frozen vegetables stored in a building owned by the Port Authority, which was destroyed by a fire caused during work undertaken by independent contractors engaged by the Authority's head contractors. 3. There it was explained that "[w]here injurious consequences flow from the negligent manner in which an independent contractor does an authorized act and not from the nature of the act which was authorized, the employer is not liable": Burnie at 578-579. But here it must be accepted that it was Manhattan who gave Mr Burnett the work he was doing near the void it had left unprotected at a time when the unfinished staircase was being used to access the first floor and the ladder was no longer in use, as I will explain. 4. In Parkview Constructions reference was made at [62] to Ilvariy Pty Ltd v Sijuk [2011] NSWCA 12. There it was explained at [19] that a builder having possession of a site owes a duty to tradesmen there engaged, to exercise reasonable care to make a site where people work at heights safe for them to work upon. The Court was of the view that "[a]s the occupier with possession of the site for the undertaking of its contractual obligations for its own commercial benefit, a builder owes a duty to exercise reasonable care to avoid the exposure of persons coming on to the site to risk of injury from the dangerous condition of the site." 5. Further, it was held that "[u]ndoubtedly an occupier, especially a non-technical occupier, is entitled to expect that a tradesman will deal with dangers or defects which his trade skills allow him in the ordinary way to perceive and deal with. That does not mean that a builder is free not to exercise any reasonable care about the safety of the building site of which it has possession": at [21]. 6. In this case, given Manhattan's possession and control of this site, it also had to exercise reasonable care to make its site safe, given the work it engaged contractors to do at height in the vicinity of the unprotected void. 7. That was undoubtedly why Manhattan originally installed the void protection which entirely covered the void, while the ladder was in use. And also why, after Mr Burnett's fall, it installed the temporary balustrade which prevented another fall into the void. Had either been in place on the day when Mr Burnett was injured, he could not have fallen as he did. 8. I am satisfied that given the risk which the unprotected void posed, Manhattan's duty required it to maintain such protection, so that the site remained safe while workers such as Mr Burnett performed work it gave them to do in the vicinity of the void. That duty had to be met, as I will explain, as Manhattan knew that in the ordinary course, workers may be inadvertent to specific risks of which they should be aware, as they are going about their work. Did Manhattan breach its duty? 1. For the following reasons, I am also satisfied that Manhattan did breach the duty it owed Mr Burnett, by failing to maintain the necessary void protection. What Manhattan's duty generally required 1. Mr Burnett performed manual, labouring type work on Manhattan's site. He had qualifications as a tradesman painter, but he was not engaged to use those skills or the skills he used in operating the Christmas tree lighting business which Griswold's undertook for a portion of each year. 2. In summary, there can be no question that so far as a subcontractor such as Mr Burnett was concerned, Manhattan's duty required it to exercise reasonable care in relation to the safety of the building site of which it had possession, including in relation to the access it provided workers to the first floor, who were engaged to work there at height, given the distance to the ground below the void. 3. That is no doubt why the void protection was originally installed. On Manhattan's records, it was later partially dismantled when the staircase was installed, but without a handrail also being installed to prevent a fall into the void. 4. The danger of a person then working on the first floor falling into the void, partially unprotected as it was at least from 8 February 2019, is thus apparent. That was only heightened by the removal of supports for boards remaining near the stairs without the installation of a handrail to prevent someone stepping onto an unsupported board. 5. Consistent with what the 8 February photo showed, Mr Burnett volunteered in cross-examination that on the day of his fall he had noticed that some of the remaining boards partially covering the void near the stairs were unsupported, even though the January photo to which he was taken, showed more of the void covered than it was on 8 February. That photo supported his evidence. 6. His evidence that on 27 February the access ladder was no longer in use and like others on site such as Mr Johnson and the owner, he gained access to and from the first floor by use of the unfinished, uncovered staircase was supported by the inspector's evidence. The inspector also used the still unfinished stairs, the ladder not being usable, although by then the temporary balustrade had been installed. 7. I am satisfied that all this evidence, unchallenged as it was by evidence from witnesses Manhattan could have called, must be accepted. It establishes that when Mr Burnett fell, the condition of this site was dangerous. The ladder 1. It is convenient at this point to deal with the remaining dispute about the ladder. 2. Manhattan was not a "non-technical occupier" of this site, but a builder who engaged subcontractors to undertake the work required on its commercial building project. It had both Mr Blencowe and Mr Johnson attend the site. 3. Inspector Holder's evidence was that he first attempted to access the first floor of the building using the ladder. His report indicated that the trapdoor had been screwed shut and that was his belief when he gave his evidence, given that it would not move, even when he tried to lift it, applying the force he described. He could not, however, remember examining the screw. 4. There is no reason to reject that evidence, no evidence having been led by Manhattan to dispute it. It was not suggested that it was Mr Burnett who screwed the ladder shut, even though in cross examination he accepted that the screw could have been removed. But it had not been. 5. As the head contractor, the use made of the ladder was undoubtedly within Manhattan's control. Having chosen not to call evidence about the ladder, the proper inference is that evidence it could have called would not have assisted its case. It follows that Mr Burnett's evidence that at the time he was injured access to the first floor was no longer being obtained by ladder, must be accepted. 6. In the result, I am satisfied that Manhattan knew or ought to have known on the day Mr Burnett fell that the ladder was no longer being used to access the first floor, but the unfinished staircase was. Was there a defect in the void protection? 1. The evidence also established that there was a defect in the void protection on the day Mr Burnett fell. That is because: 1. the staircase was L shaped. When the inspector used the stairs the temporary balustrade had been installed. While one flight of the unfinished metal spine of the stairs went up to a landing, at least some of the steps of the upper flight leading to the top floor, had been finished. This can be seen on the photos he took; 2. as Stairman advised by its 28 February letter, to which the 8 February photo was attached, it had installed the stair spine on 22 January. The void protection was then in place, meaning access was only permitted to the first floor by use of the ladder and trapdoor; 3. Stairman then also advised that when it installed the spine, the void protection had been left in place for safety, because glass balustrades were only later to be installed. That left the staircase unusable, but the ladder which gave access to the first floor, which was covered by a trapdoor, was then in place; 4. emails earlier exchanged between Stairman and Mr Blencowe, and another photo he had sent to Stairman with his 25 January email, showed the void protection still then in place. Mr Blencowe had then enquired about removing "the horizontal stringer under the landing to create more head height"; 5. the 8 February photograph showed that the void protection near the top of the stairs had by then been partially removed, with both boards and supports over and near the stairs missing and that there was then no balustrade; 6. Stairman advised Manhattan that this established that another party had "tampered" with the void protection between 25 January and 8 February, but the evidence left open that this was the result of steps Manhattan had taken after Mr Blencowe's enquiry; 7. Manhatten called no evidence to establish what it had done or knew about the removal of the void protection and use of the stairs, despite evidence that Mr Johnson was onsite on the first floor on the day Mr Burnett fell and that Mr Blencowe was on site the previous Friday; 8. Mr Burnett's evidence established the unsafe state of the void protection that day, even though he was not taken to the 8 February photo. His evidence about the January photo showed less of the void protection having been removed by that time, but the 8 February photo supported his evidence that more supports under the boards which remained near the stairs had been removed before 27 February, when Mr Burnett fell. 1. There was no suggestion that Manhattan showed the inspector these photos or its correspondence with Stairman. Had it done so, they may have affected his opinion about how Mr Burnett fell, likely confirming his views about the responsibility Manhattan shared for the fall. 2. Nevertheless, I am satisfied on all the evidence that it cannot be doubted that there was a defect in the void protection when Mr Burnett fell. Ought the defect in the void protection to have been known by Manhattan on 27 February 2019? 1. I am also satisfied that this defect in the void protection was not only obvious, but known to Manhattan as well as Mr Burnett, as it was visible when ascending the stairs, as Mr Burnett accepted, as well as from the first floor . 2. Mr Burnett's evidence that Mr Blencowe had been on site in the preceding days and Mr Johnson on the morning of the day he fell, when Mr Johnson used the stairs and instructed him in his work, must be accepted. It follows that it must be inferred that they, like Mr Burnett, also saw the unsafe state of the defective void protection before his fall, with the result that Manhattan also knew of the state it was in. 3. Even if that was not known to Manhattan, in all the circumstances it undoubtedly ought to have been, given its role on this site and the evidence which also establishes that: 1. the uncovered void and unfinished stairs were not protected by a balustrade which could then readily be seen; 2. Mr Blencowe had approached Stairman in January about the removal of a horizontal to improve access to the stairs; 3. consistently with this the January photo showed that some boards had been removed and the 8 February photo showed that a supporting beam as well as more boards near the stairs had been removed; and 4. handrails which would have prevented Mr Burnett's fall into the void were only installed after the fall. Was the risk of a fall from the first floor to the ground floor in the stair void reasonably foreseeable? 1. I am also satisfied that the very significant risk of serious injury which a fall into the unprotected void posed on this site, after the void protection was removed before Mr Burnett fell, was not only foreseeable, but actually foreseen. 2. That is why the entire void was originally covered by supported boards, as Stairman explained in its 28 February letter. The glass balustrade which would have prevented a fall into the void was not due to be installed until later in the construction process, after the staircase had been completed. 3. It was Mr Blencowe who enquired about removal of the horizontals, because of head clearance, when the stairs were to be installed. Some boards and supports were later removed, with resulting risk to those working in the vicinity of the void and stairs, given the absence of any railing around them to prevent a fall into the void. That was a risk which was not only obvious, but materialised when Mr Burnett fell. 4. Anyone who knew about or saw the state in which the void protection had by then been left, or who saw that a board support near the stairs had been removed, as they necessarily must have when they walked up the stairs, would have also been alerted to the resulting risk of a fall, as Mr Burnett accepted he had been on the day he fell. 5. On the inspector's note the fall distance was about three metres. As was Mr Burnett's case, a fall from that height on a construction site gave rise to a serious risk of injury, potentially death. On all the evidence there can thus be no question that risk was foreseeable. 6. That was undoubtedly why the void protection was initially installed, preventing both the unfinished stairs being used, as well as a fall into the void and to the ground below. That was also why access to the first floor had been required to be obtained by use of the ladder and trapdoor which was installed when the void protection was put into place. And why, after the fall, a temporary balustrade was installed, despite SafeWork's instructions not to tamper with the site. 7. Removal of some of the boards and board supports, without the installation of a balustrade, made the risk of harm which materialised when Mr Burnett fell entirely foreseeable. 8. It follows that the risk of a worker such as Mr Burnett falling from the first floor into the stair void to the ground below, when working on the first floor in its vicinity was reasonably foreseeable to an entity in Manhattan's position, given the overall control which it had of this site. It did not have to ensure his safety. But it did have to exercise reasonable care to minimise the risk which accessing the first floor by use of the stairs posed, given the foreseeable risk of injury which the unsafe state of the void protection then posed: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [43]. 9. But this it failed to do. Was it foreseeable that Mr Burnett would attempt to use the stairs as he intended when he fell? 1. I am also satisfied that after the void protection was partially removed and the ladder was no longer in use, it was entirely foreseeable that those who then came on site to work on the first floor, including Mr Burnett, would not only use the stairs to access that floor, but would then work in the vicinity of the unprotected void. 2. That is because the stairs were then the only readily available means of access to the first floor. That is consistent with their use not only by Mr Burnett, but also by the owner and Mr Johnson on the day Mr Burnett fell, and afterwards by the inspector. 3. It must thus be accepted that it was also entirely foreseeable that Mr Burnett would also use the stairs on the day of his fall as he intended, when undertaking the unskilled work he was given by Manhattan to do, as Mr Johnson had directed him earlier that day, to remove tiles from an upper floor bathroom. The foreseeable result was that Mr Burnett was able to step onto an unsupported board over the unprotected void as he approached the stairs, which he intended to use to carry the tiles down, that being the immediate cause of his fall. Breach is established 1. I am also satisfied that Mr Burnett has established that Manhattan breached the duty it owed him. 2. Manhattan's case, that account must be taken of evidence which established that he and thus Griswold's both knew of the defect which led to his fall, but that there was no evidence that Manhattan did, with the result that it did not bear any culpability given the causal potency of their conduct, cannot be accepted. 3. That follows not only from all the evidence I have discussed about what it knew or ought to have known, but also from the inferences which must necessarily be drawn against Manhattan, it having called no evidence to challenge what the evidence which was led established. 4. They also help to lead me to be comfortably satisfied that Manhattan's alleged breach of the duty it owed Mr Burnett has been established. There was a failure to exercise reasonable care 1. I am also satisfied that the evidence establishes Manhattan's failure to exercise the reasonable care which it was required to exercise, given that use of the ladder, which could still have given safe access to and from the first floor, had been discontinued before Mr Burnett fell; the obviously unsafe state of the staircase; and the defective void protection. 2. The possibility of someone working in the vicinity of the void inadvertently falling into it, was particularly important for Manhattan to take into account. That follows from the unfinished state of the stairs; the fact that the void and the stairs were left unprotected by a balustrade; and the fact that some of the boards left over the void, near the stairs, were then unsupported. 3. As I will return to explain further, I have also concluded that Mr Burnett stepping as he did onto a board which he knew was unsupported as he approached the stairs for the third time carrying a load of tiles, can only have been the result of some temporary inadvertence or inattention on his part. 4. That follows plainly from the obvious risk of which he accepted he was aware on the day he fell. Namely, that stepping onto an unsupported board lying over part of the void could cause it to fall into the void, inevitably resulting in his fall to the floor below, with the also very obvious result which followed, the serious injuries which he actually suffered. 5. It must be borne in mind that in Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 at 47-48; [1986] HCA 1, it was held that an entrepreneur who organises an activity involving a risk of injury to those engaged in it, is under a duty to exercise reasonable care to minimise that risk. That duty does not require the entrepreneur to retain control of working systems, if it is reasonable to engage the services of independent contractors who are competent to control their systems of work without supervision. But still, a builder in occupation of a site owes a duty to persons coming onto that site to use reasonable care to avoid physical injury to them, where the risk of that injury is foreseeable. 6. This is what Manhattan failed to do. 7. Consistent with this, in their concurrent evidence Mr Cauduro and Professor Carmichael agreed that a head contractor had overall responsibility for site safety, the Professor referring to requirements of the SafeWork Australia, Construction work: Code of Practice, (May 2018). He gave as an example security fencing and Mr Cauduro referred also to access and egress onto the site. Mr Cauduro said that subcontractors could also bring their own ladders for access onto site, in which case they too had a responsibility. 8. Mr Cauduro and Professor Carmichael agreed that on this site, the general access given to the first floor to multiple tradespeople was Manhattan's responsibility, including as to fall protection in relation to penetrations. In the case of an edge with a fall of three metres into a void, they also considered that obligation to fall on Manhattan. But they considered that both a head contractor and subcontractors had a responsibility under the Code of Practice to safely manage the staging of work. 9. They also agreed that if access was not adequate, a subcontractor had to discuss this with the head contractor and alternatively, had to provide their own access. They also agreed that on this site the ladder could have provided a safe means of access and that the stairs did not. 10. Even if this evidence is accepted, it still supports relevant failure on Manhattan's part. 11. The evidence I have discussed well established that Manhattan failed to use reasonable care to avoid foreseeable physical injury to those such as Mr Burnett, who had to perform their work in the vicinity of the void after part of the void protection had been removed, without a handrail being installed. The result was that the void above and adjacent to the stairs was unprotected, exposing those working in the vicinity to risk of serious harm, which would have been avoided if reasonable care had been taken. 12. It was not. What precautions would a reasonable person have taken? 1. I am also satisfied that the evidence established that the precautions which could reasonably have been taken by Manhattan to deal with the defect which caused the risk to which Mr Burnett was exposed to materialise when he was working in the vicinity of the unprotected void included: 1. not removing the void protection before the staircase was completed; or 2. when it was partially removed: 1. not leaving boards over the void unsupported; and/or 2. preventing access to the unsupported boards by installing temporary balustrades around the void; 1. in the absence of temporary balustrades, requiring continued use of the ladder to move between the first floor and the ground; and 2. directing Mr Burnett not to approach the void or stairs, but to use a bucket and rope to lower the tiles to the ground floor, as he accepted in cross-examination had been possible. Negligence is established 1. While Griswold's negligence and Mr Burnett's claimed contributory negligence must also be considered, I am satisfied that there can be no doubt that had Manhattan adhered to its duty, Mr Burnett would not have worked in the vicinity of the unprotected void as he did. Its breach left the void cover in an unsafe state, as neither the void nor the unfinished stairs which were then being used was unprotected by a balustrade of the kind Manhattan installed soon after Mr Burnett's fall. 2. Manhattan's established negligence permitted Mr Burnett's fall while he was engaged in the work he had been given that day by Mr Johnson to perform in the vicinity of the void. But for its negligence, he would not have been able to step onto the unsupported board left lying over part of the void near the staircase, as he did. 3. In the circumstances, it is entirely appropriate for the scope of Manhattan's liability to extend to the harm it caused Mr Burnett by its negligence in allowing him to fall into the void with the entirely foreseeable result, being the very serious injuries which he sustained. Griswold's claimed negligence 1. I am also satisfied that similar conclusions must be arrived at in relation to Griswold's. 2. The nature of Griswold's duty as Mr Burnett's employer was not in issue. It also accepted that the state of the void protection and stairs was not safe, with the result that Mr Burnett's place of work was also not safe. Further, that even though he was its controlling mind, they are separate legal entities each with their own obligations, which may not be overlooked: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424; [2004] HCA 28 at [49]. 3. Mr Burnett's evidence that he had noticed the missing supports when he walked up the stairs on the day he fell is, as a result of his office, relevant to the question of the breach of Griswold's duty. 4. Despite Mr Burnett having noticed the unsafe state of the void protection before he fell, and Griswold's acceptance that this had unarguably made use of these stairs unsafe and put it on notice of this, Mr Burnett did not raise this problem with Manhattan or anyone else, as he could and undoubtedly ought to have. Griswold's still contended that Mr Burnett's failure amounted only to an act of contributory negligence on his part, and not a breach of its duty as his employer. 5. That was in issue, Mr Burnett denying any contributory negligence and Manhattan contending that Griswold's was also necessarily liable for its own negligence. On Griswold's case, however, account had to be taken of the limited control which it had of this workplace, which was under Manhattan's control. 6. Realistically, it was contended, Griswold's could only either have drawn the unsafe site to Manhattan's attention, which was unlikely to have resulted in any alteration, given that it must have known of the unsafe state of the void protection, or it could have refused to allow Mr Burnett to work there. In the result it had to be concluded that if it too were liable, Manhattan's breach was far more important than that of Griswold's. Mr Burnett supported this. Griswold's negligence is also established 1. I am satisfied that Manhattan is correct about the non-delegable nature of the employer's duty Griswold's owed Mr Burnett. 2. It follows that Griswold's failure to deal with the risk of which it became aware before Mr Burnett's fall, which the use of these unsafe stairs posed to him, given the defective state of the void protection where he was working, necessarily involved a breach of its duty to Mr Burnett. The fact that it permitted him to perform the unsafe work Mr Johnson had given him to do in the vicinity of the unprotected void cannot be overlooked; rather, given the control it exercised over Mr Burnett's work, Griswold's negligence is established. 3. That result cannot be avoided by account being taken of any contributory negligence found on Mr Burnett's part, even though it was he, as Griswold's controlling mind, who necessarily had to ensure that it met the duty it owed its employees. 4. While Griswold's obligations arose to be considered in a context where Mr Burnett was performing labouring work at Mr Johnson's direction, its case also arises to be considered in the context of the principles specified in ss 5B and 5C of the Civil Liability Act. 5. So approached, I am also satisfied of Griswold's liability for breach of its duty, despite its case that it was Manhattan which was primarily and substantially responsible for what befell Mr Burnett. Even accepting that Manhattan had the greater liability, but for its breach, as well as that of Manhattan, Mr Burnett would not have been harmed as he was. It is thus appropriate for the scope of its liability to also extend to the harm it caused Mr Burnett by its negligence. Causation 1. I will return to Mr Burnett's alleged contributory negligence, but have concluded that in the result, both the negligence of Manhattan and Griswold's were a cause of Mr Burnett's fall and the resulting serious injuries which he suffered, both necessarily being a condition of the harm which resulted. 2. That conclusion follows from a consideration of s 5D of the Civil Liability Act, which provides: 5D General principles (1) A determination that negligence caused particular harm comprises the following elements— (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent— (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 1. The test of whether negligence was a necessary condition of the occurrence of the harm Mr Burnett suffered is factual, turning on the balance of probabilities, given all the evidence. The "but for" test of causation is thus relevant: Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14]-[16] and Parkview at [76]. 2. On the evidence I have discussed, I am satisfied that Mr Burnett has also met the onus which falls upon him to establish this: s 5E. 3. The harm Mr Burnett suffered materialised because of the failures of both Manhattan and Griswold's, each having contributed to what caused the very serious injuries which he suffered. They both failed to deal with the serious risk of injury to which his work exposed him, despite both being aware of the defective state of the void protection and the risk to which the work he was given to do in its vicinity exposed him. In both their cases, their negligence was a necessary condition of the harm which he suffered as a result. 4. Manhattan had control of this site and the work it had done there, including in the vicinity of the void. Given the state of the staircase and the ladder and what it engaged Mr Burnett to do in relation to the first floor bathroom at a time when the site was unsafe, exposing him to a foreseeable risk of serious injury, of which it knew or ought to have known, it must also be concluded that its negligence was a necessary condition of the occurrence of the harm Mr Burnett suffered. 5. Griswold's negligence was also a necessary condition of the occurrence of that harm, given its role as his employer; what it knew or ought to have known about the unsafe state of the place Mr Burnett had to perform the work he was given to do on the day he fell; and its failure to act to deal with the obvious risk Mr Burnett himself identified that day, before he undertook that work. 6. I am satisfied on the evidence I have discussed that this is a case where it is appropriate for the scope of both Manhattan's and Griswold's liability to extend to the serious harm to which they both contributed. 7. In the result, orders must be made against both of them. Was Mr Burnett contributorily negligent or only inadvertent? 1. I have reached a different conclusion in relation to Mr Burnett's claimed contributory negligence. 2. That Mr Burnett was negligent was in issue. His case was that he had only been inadvertent and not negligent when he stepped onto the board he knew was unsupported, while absorbed in his work, as he approached the stairs, that resulting in his fall into the void. Manhattan and Griswold's both contended that he was contributorily negligent. 3. That has to be resolved in accordance with the requirements of Div 8 "Contributory negligence" of the Civil Liability Act: ss 5R and 5S discussed in Verryt v Schoupp (2015) 70 MVR 484; [2015] NSWCA 128. The onus falls on Manhattan and Griswold's to establish the claimed contributory negligence. 4. The same principles as those earlier discussed apply to a consideration of Mr Burnett's claimed contributory negligence: s 5R. The standard of care required of him was that of a reasonable person in his position. What is in issue must be determined on the basis of what he knew or ought to have known at the time. That he knew the boards near the stairs were unsupported before he fell was volunteered, as I have explained. 5. As discussed in McLean v Tedman (1984) 155 CLR 306; [1984] HCA 60, when an issue such as this arises, attention has to be paid to the well-recognised distinction between negligence and mere inattention or inadvertence. Whether this is such a case depends on questions of fact. Thus account must be taken of the circumstances and conditions in which the work Mr Burnett was given by Mr Johnson, had to be done. 6. The authorities establish that a duty to take reasonable care extends to the possibility that an employee will act inadvertently or without taking reasonable care for his or her own safety: McLean at 312. Accordingly, reasonable care must be exercised to avoid an employee's exposure to the risk of injury in the event of inadvertence, inattention or misjudgement when performing a task he or she is given: Sungravure Ply Ltd v Meani (1964) 110 CLR 24 at 36-37; [1964] HCA 16. 7. Inattention bred of familiarity and repetition, the urgency of a task, a person's preoccupation with the matter in hand and other prevailing conditions may thus be taken into account in determining whether some temporary inadvertence, some inattention or some taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man", when determining what caused the risk to which Mr Burnett was exposed to materialise: Sungravure at 37. 8. I am satisfied that the evidence establishes that such temporary inattention or inadvertence on Mr Burnett's part rather than negligence, was what caused the materialisation of that risk. Contributory negligence is not established 1. Mr Burnett himself volunteered his knowledge of the missing support for the boards near the stairs in cross-examination. He had noticed this when he went up the stairs earlier on the day of his fall. 2. His case was that despite having this knowledge, later, as the result of inadvertence while he was removing broken tiles from a bathroom, on his third trip carrying a load of tiles he stepped onto one of those unsupported boards as he approached the stairs. The result was that the board moved, causing him to fall to the ground below. 3. For reasons I have explained, I am satisfied that this is what occurred. 4. The risk which materialised when Mr Burnett stepped onto the unsupported board was obvious, given what he had earlier observed, as he accepted. He then not being sufficiently attentive to where he stepped, as he approached the stairs while absorbed in his task, is an entirely likely explanation for him stepping as he did onto the unsupported board over the void which he knew was unsupported and liable to fall as it did. There is no suggestion that he did so being prepared to take the risk that it would not fall, which would undoubtedly have not only involved him in not taking reasonable care for his own safety, but in the circumstances acting in a way that was entirely foolhardy. 5. Mr Burnett was very experienced in the work he was doing for Manhattan. There is no suggestion that he had taken unsafe risks in the past, or even that he had ever been injured while working on a building site. On all of the evidence I have discussed I am not satisfied, on the balance of probabilities, that his fall was the result of his own negligence, uncharacteristic as it appears that would have been to that point. 6. On the evidence, much more likely is that his fall was the result of Mr Burnett's inadvertence, as he was engrossed or preoccupied with the task he had been given to do, as he approached the stairs carrying his third load of tiles, with the result that he did not bear in mind as he needed to the unsupported boards near the stairs. 7. It was the dangerous position in which Manhattan had put this construction site that permitted his inadvertence to result in the materialisation of the risk by which Mr Burnett was harmed. Namely, stepping onto an unsupported board lying over the void near the top of the stairs, rather than continuing to walk safely along the floor, that not having been prevented by installation of a handrail separating the floor and the void. 8. This conclusion is supported by what the photos establish. The remaining boards covering part of the void and the floor where not only lying flush to each other, but were similarly coloured. Because there was no balustrade, temporary railing or anything else separating the floor and the boards, there was nothing to draw to the attention of someone walking along the floor, that part of the void cover remaining near the stairs was then unsupported and thus dangerous. 9. In those circumstances, it must be accepted that someone working like Mr Burnett, could easily have strayed inadvertently from the floor, to step onto an unsupported board near the stairs as he approached them, while engaged in his task. 10. That conclusion is supported by the tear which can be seen in the inspector's photo, near the top of those stairs. That is consistent with it having been torn as the unsupported board and Mr Burnett suddenly fell to the ground below while carrying a load of tiles. That Mr Burnett intended to risk causing such damage, is unlikely. 11. It was the partially uncovered void, the absence of a balustrade and the unsupported board near the stairs which allowed Mr Burnett to fall some three metres to the ground as he did when the board collapsed under him, as Manhattan notified SafeWork had occurred. That also permitted his inadvertence to result in such a fall and the resulting terrible injuries which he suffered. 12. In the result, I am not satisfied, on the balance of probabilities, that the evidence establishes that Mr Burnett's fall was the result of his own contributory negligence, rather than such inadvertence. Apportionment of damages for negligence 1. It follows that there must be an apportionment between Manhattan and Griswold's. 2. Contributions to a damages award by concurrent tortfeasors is an evaluative exercise: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) ALJR 492. Such a finding is not based on a question of principle of fact or law, but of proportion, balance and relative emphasis. That requires the weighing of different considerations and involves an individual choice or discretion, as to which there may well be differences of opinion by different minds. 3. Manhattan's case was that Griswold's contribution was in the order of 50% and that of Mr Burnett himself 50%. Griswold's contended that by comparison to Manhattan's breach, its failures would be found to result in liability at the lower end of the spectrum, in the order of 10% -15% and in final written submissions, 10%. Mr Burnett denied any negligence. 4. On the evidence I have explained, I am satisfied that Manhattan had the primary responsibility for the injuries which its negligence and that of Griswold's both caused. 5. That follows from its control of the site; how it came to be in the unsafe state I have explained; and how that state was maintained until after Mr Burnett fell, when it installed the temporary balustrade which the inspector saw. There was obvious risk created by the early removal of part of the void protection, in order that the staircase could be finished and even before it was, by the removal of part of the support for the remaining boards and the use which was made of the unfinished staircase, without a balustrade being installed, before Mr Burnett was given work to do in the vicinity of the unprotected void. 6. That Manhattan must make the much greater contribution to the damages to which Mr Burnett is entitled than Griswold's, given its responsibilities and failures, necessarily follows. 7. For its part, Griswold's was entitled to expect that the access Manhattan arranged to the first floor would be free of obvious danger. But when it actually became aware of such danger, when Mr Burnett ascended the stairs on the day he fell and observed the unsupported board near the stairs which were then in use, before he was given the work Mr Johnson gave him to do, it was required to act to avoid breaching its own duty. There is no suggestion, however, that like Manhattan must or ought to have been, it had earlier been aware of the dangerous condition into which the site had been put. 8. Still, Griswold's should undoubtedly not have permitted Mr Burnett to use the unprotected and unfinished stairs, or to perform the task he was given by Mr Johnson in proximity to this dangerously unprotected void, as it did. That was unarguably unsafe and risked him suffering serious injury. In all of these circumstances, given that Griswold's took no steps at all to deal with the obvious risk Mr Burnett had noticed, it must be concluded that it also substantially contributed to the materialisation of that risk. 9. In all of the circumstances I have discussed, I have concluded that Griswold's contribution must be assessed to be 20%. That reflects the respective responsibility of Manhattan and Griswold's for the consequences of the negligence which caused Mr Burnett to suffer as he did. Manhattan's contributions to the workers compensation payments made by Griswold's and/or indemnity 1. Both Manhattan and Griswold's pursued contribution under s 5 of the Law Reform (Miscellaneous Provisions) Act and contribution was also pursued by Griswold's under s 151Z of the Workers Compensation Act. It provides for circumstances where a person entitled to workers compensation pursues damages in respect of injury against both the employer and another tortfeasor. 2. The parties propose now to discuss the calculations which flow from the conclusions which I have reached, in respect of these claims, as well as various of the damages which I have concluded that Mr Burnett has established he is entitled to. Damages 1. The nature and extent of both Mr Burnett's injuries and the damages to which he is entitled as a result were, however, also in issue. Initially, apart from Fox v Wood damages, which the parties agreed that they could discuss and resolve, once this judgment is given, all of the damages claimed were in issue. 2. Mr Burnett and Manhattan provided competing schedules of damages which addressed non-economic loss, past economic loss, future economic loss, past out-of-pocket expenses, future out-of-pocket expenses, past care and future care expenses, which differed markedly, for reasons which were not all readily apparent. Griswold's generally supported the case Mr Burnett advanced. 3. Finally, past expenses were also agreed, but further calculations still need to be undertaken to finalise the amount of those damages. The injuries Mr Burnett suffered as the result of his fall 1. By consent, s 136 orders under the Evidence Act were also made in respect of the history of the injuries which Mr Burnett has given the various doctors who treated him and the experts who later examined him. 2. The nature and extent of Mr Burnett's injuries, as well as their ongoing consequences were also in dispute, despite Manhattan's final written submission that there was no doubt that he had suffered significant injuries from which he has made an impressive recovery. 3. In resolving this issue, it is relevant that the histories he has given accorded with the injuries described in the medical records I have already discussed. Much of what was finally disputed turned on what was revealed by surveillance footage, about which Mr Burnett was cross-examined and experts expressed competing opinions. 4. Despite that footage, given Mr Burnett's evidence in cross-examination I do not accept that he set out to exaggerate or feign the consequences of the injuries he suffered, either in the accounts he has given others over time, including experts, or in his evidence, as was Manhattan's case. 5. The nature and extent of his very serious injuries and their ongoing consequences is well established by contemporaneous records. The injuries and treatments he explained in his first statement accorded with those records. In Mr Burnett's second statement he described the medication he had been prescribed and then continued to take. This was also consistent with medical records and parts of the expert evidence. 6. That, as Mr Burnett said in his statement, he had a difficult and complicated period of convalescence after his fall must also be accepted, as must that he: 1. suffered sensory problems in his hands and legs, as well as difficulties with bowel, bladder and sexual function as a result of his fall; 2. was left with problems with temperature regulation and pain in his hands and feet; 3. received treatment for depression and ongoing pain; 4. has tried to take as little pain medication as possible, because of his concern about side effects; 5. is seen in the surveillance footage to be wearing clothing at times which accords with the ongoing problems he said he has with temperature regulation; 6. still has ongoing problems with his balance and gait, which have improved over time, but have still left him not walking normally, which can also be seen in that footage, as well as what could be observed of his movements while in court; and 7. requires various ongoing treatment, including for pain which he still continues to suffer, which continues to adversely affect him. 1. This explains the frustration which he undoubtedly feels about the ongoing extent and consequences of his injuries and some of what he can be seen doing in the footage. The operative who took that footage had been retained for some 92 hours. But only a few hours of footage depicting what Mr Burnett could be observed doing had been recorded. Both he and the experts gave evidence about what could there be seen, which supported the remarkable recovery he has achieved. 2. The footage showed not only the improvements which Mr Burnett acknowledged, but also the challenges which he still has to contend with, to which I will return. For now it is sufficient to indicate that I do not accept that this footage establishes that accounts he has given in the past about his injuries were false, or that his evidence about them and their consequences was not generally credible or reliable. 3. Mr Burnett accepted that when he saw the inspector while he was in hospital, he told him that he had then made a decision to give up maintenance work, even though Mr Burnett could not recollect this when giving his evidence. 4. That was consistent with what Mr Burnett explained he then believed he was facing, having earlier been advised that there was a chance that he would not walk again. His evidence that "At that time I thought I was pretty well finished, unable to do work" and that he was a "cripple", given his injuries and state some weeks after his accident, is understandable and must be accepted. 5. The evidence also establishes that despite this, Mr Burnett has recovered much more than he then expected. It must be accepted that was the result of the way he has pursued his recovery with recommended exercise, including regular attendance at a gym, as well as swimming and physio, other treatments and pain management, which continue. That this recovery was initially affected by the consequences of the COVID-19 pandemic was evident. Still he has had a remarkable degree of success as a result, given the severity of the injuries he suffered, as he accepted in cross-examination. 6. Problems with his gait and strength have improved over time, very considerably from when he was injured, as the experts agreed. Even to the point where he has been able to install Christmas tree lights at his home, with assistance from those who used to work for Griswold's before his fall. His evidence was that by taking care, he is also now able to undertake tasks such as shopping, cooking, household chores and gardening, including using a whipper snipper and he also travels overseas with his wife, whom he married after the breakdown of his first marriage, some months after his fall. 7. Mr Burnett's belief that his fall contributed to the breakdown of his first marriage and that his remarriage has assisted his recovery, must also be accepted. 8. Mr Burnett has been able to reduce his pain medication very considerably, while also increasing the extent to which he is able to undertake things he managed in the past without difficulty, which he could not manage at all immediately after his fall. The video footage also showed his continuing unsteadiness and that he still has to contend with other limitations. Satisfied as I am that his evidence in cross-examination about what the surveillance footage depicts should be accepted, that Mr Burnett still has to live with ongoing pain must also be accepted. 9. In his cross-examination, Mr Burnett explained the efforts he had pursued, despite the pain he still experiences, especially with any exertion. He said that he manages with medication, pursuing exercise and tasks he needs to undertake earlier in the day, albeit later in winter, because he is still more susceptible to the cold than before his fall. He also described the fatigue which he experiences as a result and its consequences for what he can manage to do at different times of the day; the ongoing lack of strength in his thighs and calves, which result in him having to take care about how he lowers himself or bends over; and how he still has to reduce the weight of bags of shopping which he carries, because of the pain caused by carrying fuller ones. 10. The footage showed Mr Burnett undertaking tasks he undoubtedly could not have undertaken immediately after his fall. They include him climbing a six-foot ladder and standing on it for some moments, while he pulled lights from where they were caught on a tree branch above. What he can be seen doing there, while his wife hovered at the foot of the ladder, was both clearly precarious and unsafe, as he accepted. The footage also depicted him helping someone push his empty trailer and closing a garage door. 11. Mr Burnett's evidence in cross-examination that he was not "quite happy" about having climbed up towards the top of that ladder, finally standing with one foot on either side while, as he said, he was "shitting himself", as he attempted to get one light down from a tree, must be accepted. What he did plainly risked a fall and was not sensible, given his ongoing balance problems, which can also be seen on the footage. 12. I am satisfied, however, that what the footage shows is not a proper basis for the conclusion that all of Mr Burnett's other evidence about the nature and extent of what his injuries are still causing him, was either not reliable or credible. I will return to particular issues still lying between the parties in respect of specific evidence which needs to be considered, including his present capacity to undertake work, which he has not attempted. 13. But I note that relevant concessions made by Mr Burnett against his interest in relation to some of these matters, also underscores the credibility and reliability of his evidence and supports the conclusions I have reached about what the evidence does establish. 14. Namely, that the ongoing physical problems and limitations which Mr Burnett still has to manage are as he described. Non-economic loss 1. Mr Burnett is now aged 59 with a life expectancy of some 27 years. There was no issue that he has suffered non-economic loss as the result of his fall. It was its assessment which was in issue. 2. "Non-economic loss" is defined in s 3 of the Civil Liability Act to mean "any one or more of the following— (a) pain and suffering, (b) loss of amenities of life, (c) loss of expectation of life, (d) disfigurement." 1. No damages may be awarded for non-economic loss unless its severity is at least 15% of a most extreme case: s 16 of the Civil Liability Act. This was conceded. Mr Burnett claimed this loss was properly assessed to be 65% of a most extreme case and Manhattan's case was that it would be assessed at 35%. Griswold's supported Mr Burnett's case. 2. I am satisfied that this loss must be assessed to be 45%. The parties' cases 1. Mr Burnett's case was that the accident and its aftermath had had devastating consequences, it being difficult to imagine an array of injuries such as he had suffered, having less than almost catastrophic consequences. 2. After his discharge from hospital in May 2019 he had required ongoing treatment, including repeated nerve block injections and psychological support; he had lost his ability to work and participate in various social activities; what he could do was confined by cold weather, with which the experts had not taken exception; and he faced the prospect of further deterioration in his condition as he ages, more than would result from a normal ageing process, given his increased pain and stiffness. He is also now more vulnerable to further trauma and could also require further spinal fusions. 3. Manhattan accepted that Mr Burnett had suffered significant injury, but argued that he had made such an impressive recovery, greater than he was prepared to acknowledge, such that his case on non-economic loss could not be accepted. The evidence 1. Not only the evidence given by Mr Burnett and his wife, but that of some of the experts, is relevant to this and other heads of damage. The lay evidence 1. In his first December 2021 statement, Mr Burnett said that his accident had brought his first marriage to an end. He also described the ongoing pain and tension he suffered in his neck and upper back and the treatment he pursued to manage those symptoms, which sometimes helped improve his mobility, but not all his ongoing pain. 2. Mr Burnett also described the adverse impact of Botox injections on his hamstrings, which were left feeling like jelly and how distressing and disturbing this had been, with the result that he withdrew, stopped eating and lost 25 kilograms. That, he said, had been his lowest point, but that he had been able since to change his mental outlook, with the result the overall improvements he had achieved. But he said his life was still awful and that he was trying to make the best of a very bad situation. 3. In his January 2023 statement, Mr Burnett explained positive changes in his life as the result of his second marriage, as well as some of his physical improvements. 4. In cross-examination, Mr Burnett accepted that his circumstances had improved in various ways, but also explained how he still could not manage to bend normally, given his lack of strength; the pain he still suffers; and how he is still at risk of falling. He also explained that the activities which he can be seen pursuing in the footage, including for example when stretching over his head to put on a jumper, to pull lights from a tree, lower the garage door, helping to push a trailer, or lowering himself to sit on a milk crate were still painful; that he could not undertake such activities normally; and that he needed to undertake such activities in short intervals. The expert evidence 1. Mr Burnett's evidence was consistent with his medical records and the histories he has given treating doctors and experts in the past. His wife's evidence corroborated aspects of that which he gave, as did what can be seen on the surveillance footage which some of the experts had also considered. 2. There is a great deal of expert evidence, which is relevant to a number of issues. 3. Mr Burnett's continuing disabilities had been agreed by the orthopaedic surgeons Dr Giblin and Dr Maxwell, their joint report relevantly providing: "Injuries The experts agree the plaintiff suffered multiple spinal fractures involving the cervical and thoracic spine and he had a minor spinal cord injury at T11 affecting his lower extremities, mainly his left leg. The experts agree that the specific injuries sustained in the fall were: • Comminuted fracture of the C7 lamina • Comminuted fracture of the T1 lamina and spinous process • Minimally displaced fracture of the T2 transverse process • Minimally displaced fracture of the right T3 transverse process • Fracture of the head of the right 3rd rib • Transverse process fractures of T11 and T12 • Spinous process fractures of T10 and T11 • Compression fracture of T5 • The major injury was a burst fracture of T12, which was an unstable three column fracture associated with a retropulsed fragment and spinal canal narrowing by 40 per cent, causing spinal cord contusion at this level • Fracture of the right distal clavicle • Multiple rib fractures on the right associated with a mild pneumo-thorax • Minor persistent spinal cord injury mainly affecting his left lower extremity, manifested by persistent mild muscle wasting above and below the knee. Initial treatment The experts agree that the initial treatment, post-operative care and rehabilitation were appropriate, including the surgical stabilization of the two different segments using pedicle screws from T3 to T7 and a further stabilisation using pedicle screws from T10 to L2. The plaintiff also had a decompression from T11 to L1. Current Status 1. The experts agree in regard to his current status: •His walking time is reduced to one hour because of persistent dysesthesia and decreased tone in his lower legs, particularly the calf muscles. • He can sit for one hour, then has to change his body position, because of discomfort in his back and legs. • He can stand for up to 20 minutes then he has to move mainly because of discomfort in his legs. 2. The experts agree he has slight urgency with regard to his urological function but no incontinence. With regard to his bowel, he reports slight constipation but there is no incontinence. With regard to sexual function, he initially reported significant problems. This appears to have improved but is not back to normal. 3. Activities of Daily living The experts agree that with regard to activities of daily living he requires one hour assistance per week, mainly for outdoor activities, such [as] hedging and pruning. In a decade's time the amount of requirement will double. The experts agree the plaintiff's driving ability is unrestricted at this point in time. 4. Work capacity The experts agree that being involved in workers compensation and a personal injury claim makes it very difficult for the plaintiff to obtain remunerative work. He does have certain skills and is trying to improve his skills by doing computer courses. He will have difficulty doing his normal pre-accident duties of putting up Christmas lights because of an inability to climb ladders and work on roofs. He also has some difficulty walking on uneven ground which would make it difficult for him to do building inspections, however he would be capable of carrying out sedentary duties, such as office work. He would also be capable of work delivering light parcels on a full-time basis. The experts agree that he should be employed in work where he has the ability to change his body habitus at will and his axial skeleton is unsuitable for constant twisting, turning and bending because of his injuries. 5. Future treatment The experts agree that Lyrica 75 mg BD as necessary is appropriate. Medical The experts agree the plaintiff should have GP visits once every three months for prescriptions of Lyrica at a cost of $145 per visit. No routine visits to the surgeon are necessary, nor does he need continuing Botox treatment. The experts agree future surgical treatment cannot be excluded." 1. As to disagreements the joint report identified: "The first area of disagreement is the need for removal of the 'hardware'. Dr Maxwell Dr Maxwell considers that the internal fixation devices, which have not been reported to be causing any problems currently, are unlikely to cause any problems in the future and therefore elective surgery to remove these devices is not indicated. Dr Giblin Dr Giblin would remove the devices on the basis of ongoing risk management. That is to say, foreign material in the human body is always a source of liability over an extended period of time. The risks associated with this material are primarily infection, loosening and peri-prosthetic fracture. If the material is removed and subsequent medical events occurs, then the clinical situation can be readily re-imaged and treated. The second area of disagreement is adjacent segment disease. Dr Maxwell Dr Maxwell considers adjacent segment disease has been overstated and on reviewing the available literature, there is no evidence that increased degenerative change occurs in adjacent segments over and above the changes seen due to the natural ageing process. Dr Giblin In Dr Giblin's experience adjacent segment disease is understated. It is currently being recognised in the surgical consent processes as a known risk for spinal fusions. Spinal fusions themselves are an obstruction of the normal basic science mechanics of the spine and this produces abnormal extra stress on the immediate adjacent spinal segment." 1. In their concurrent evidence Dr Maxell's view of the footage was that it established that Mr Burnett there displayed an increased range of movement and level of physical activity than when he examined him in 2021, consistent with ongoing improvement in his functional capacity levels. The result was that he considered that Mr Burnett was now capable of carrying out all domestic activities and an increased range of work activities, including heavy lifting and prolonged standing and walking. 2. While agreeing that there had been improvement in Mr Burnett's gait, Dr Giblin strongly disagreed with this assessment of his capacity. That was because he had had his spine severely compromised; had undergone two resulting levels of fusion, as well as a decompression; and his minor underlying neurological disorder still affecting his left leg, in the main. There was also ongoing impact from various underlying soft tissue injuries. The result, Dr Giblin considered, was that his physical and mental stamina remained compromised, consistent with his complaints of weakness by the afternoon, as well as fatigue. He considered that Mr Burnett was good only for the first half of the day. 3. Dr Maxwell disagreed. He considered that his spinal injuries had stabilised, that usually being accompanied by decreasing pain, consistent with the bending and twisting that Mr Burnett could be observed performing in the footage and an overall great deal of improvement in his condition. That was also consistent with Mr Burnett no longer requiring heavy opioid analgesics and his residual neurological impairment being minor. While his balance appeared still to be abnormal, his gait had improved; Dr Maxwell considered it to be pretty well normal. 4. Dr Giblin disagreed, considering that most of the bending and pushing activities which could be observed in the footage were functions of Mr Burnett's lumbar spine, which had not been damaged. 5. The experts did agree that the improvement in Mr Burnett's condition reflected the work he had done to improve his functions, which had been adversely impacted by the pandemic. 6. Dr Maxwell considered that the videos shed more light on Mr Burnett's functioning than his stamina, which Dr Giblin expected would be greater in the morning. Dr Maxwell also agreed that Mr Burnett appeared to have weakness in his quadriceps, evidenced by difficulty in standing and a balance problem, which required him to pull himself up to standing, which Dr Giblin observed was also consistent with him still having a sore back. 7. The experts also agreed that, having suffered motor neurone lesions, initially Mr Burnett's balance had been affected to a fairly significant degree and that had improved with nerve root recovery. 8. Dr Maxwell considered that Mr Burnett's improvement was consistent with his reduced pain treatment, apparent improved mental state and increased physical activity, but that his neurological improvement was probably stationary. Despite his spinal fusions, he did not regard pain to be a large problem for Mr Burnett in the future and considered that he had been left with a fairly minimal neurological deficit, which was not disabling. 9. Dr Giblin again disagreed. His view was that Mr Burnett had not been left with a normal spine; that he was damaged; and that his current situation would not last. 10. That was not Dr Maxwell's experience. He believed that the fusions would not be a problem for 10 to 15 years and that Mr Burnett was not going to get worse. He also considered that he could even improve further and that there was no risk of catastrophic failure or a need to remove the devices inserted into his spine. Further, with continued physical activity, he was not going to deteriorate at any greater rate than he otherwise would have, as he ages. 11. Dr Giblin entirely disagreed. He considered that it was now well known that a group of those who have had a spinal injury and resulting fusion go on to have accelerated progressive degenerative changes adjacent to the fused areas. The result is that surgical consent now requires information to be provided about the risk of fusion disease. 12. Dr Maxwell still considered that there was not a lot of evidence of accelerated degeneration from fusions, rather than treatments for conditions such as scoliosis. He also considered that adjacent segment disease was not a major problem over and above normal degeneration from ageing. 13. Dr Giblin again disagreed, that not being his clinical experience. Dr Maxwell explained that he had not had much clinical experience with thoracic spine fusions such as Mr Burnett had undergone. 14. These experts also disagreed about the risk that Mr Burnett would require surgery to remove the hardware in his spine. Dr Giblin's experience was that over time, that need arises and that such removal was increasingly undertaken, given the availability now of appropriate equipment and because things inevitably went wrong with such hardware, over time. Dr Maxwell disagreed, considering that general medical consensus was still that this should be avoided, because of the risk of complications. Thus removal was still not generally undertaken, unless it was associated with an infection, for example from the skin or a tooth, which is in the first instance treated with antibiotics. 15. Dr Maxwell also considered that the fatigue Mr Burnett experienced would continue to decrease if he pushed himself and that apart from his leg weakness, there was no reason for him to generally feel fatigued, despite the medication he still took to deal with the neurological consequences of the injury to his spine. He also considered that performing remunerative work could help him. 16. Dr Gibson disagreed, given Mr Burnett's ongoing limitations and pain. But they did agree that his self-directed activities, which had resulted in his improvement, reflected that his motivation had been pretty good. 17. Dr Low, a consultant occupational physician had examined Mr Burnett three times, most recently this year and had also seen the footage. In arriving at his conclusions, he took account not only of the histories Mr Burnett gave and his medical records, but also his physical examinations. In cross-examination he said that he considered that his work capacity remained unchanged. 18. In his first August 2020 report, Dr Low noted Mr Burnett then reported problems with his balance; that his walking tolerance was a kilometre and his ability to sit and stand only 30 minutes. He also reported having difficulty with sleep, memory and concentration and his gait not being normal. 19. Dr Low then considered Mr Burnett was unlikely to return to work in the foreseeable future. He could not perform work on a construction site, which would be physically demanding, requiring him to work on uneven ground and remain on his feet throughout the day, adopting a range of positions which he could not tolerate. This would give rise to safety risks to himself and others, given his problems with balance and fatigue. 20. In his September 2021 report, Dr Low noted the treatment and physical rehabilitation Mr Burnett had pursued, but that he had been unable to return to employment. Mr Burnett then reported ongoing pain and stiffness, but some improvement in his symptoms and being able to walk a greater distance with the aid of walking sticks, but being unable to run, squat and having difficulty negotiating stairs, as well as ongoing sleep disruption, memory, concentration and fatigue. 21. Dr Low concluded that Mr Burnett's condition remained essentially unchanged, including his capacity for work, which he was unlikely to undertake in the foreseeable future. 22. In his June 2022 report, Dr Low did not consider that Mr Burnett had recovered sufficiently to perform part-time work of 20 hours per week over four days as Professor Bright had suggested, given his ongoing symptoms and the risks which they presented. He also did not consider the various roles Professor Bright had identified to be suitable for Mr Burnett, given the walking, standing and lifting they would variously require. Sedentary work in a call centre did not accord with his occupational history and would require consideration of how he could commute, as well as whether provision could be made for his need for postural adjustments. 23. In his April 2023 report, Dr Low noted the change in pain medication which had been supervised and the other treatment Mr Burnett was still pursuing. Mr Burnett then reported more manageable pain, but ongoing problems with stiffness and range of motion, as well as with a dead arm. His walking distance had increased, but he still used sticks for longer distances, was still unable to jog or run and still had difficulty negotiating stairs and inclines, as well as sleep disruption, and memory and concentration problems. 24. Dr Low then considered Mr Burnett's inability to work remained unchanged, especially given that it had now been in excess of four years since he had worked. 25. Dr Low agreed that physically Mr Burnett then had a capacity for part-time sedentary type work, but considered that his educational and vocational history did not lend itself to such work and that his continuing problems with sleep, fatigue and concentration, made a return to work unlikely. He remained physically disabled and relied on the assistance of external providers and his wife for normal activities of daily living. 26. In cross-examination about what his reports were intended to convey, Dr Low agreed that in part they depended on what Mr Burnett had told him; that his view that he would have difficulty lifting heavy weights referred to 20 kilogram weights; and that he also considered that he could not perform repetitive manual lifts of lesser weights. 27. Dr Low also did not consider that Mr Burnett could now undertake Griswold's former Christmas light business, given that it involved repetitive and perhaps heavy lifting, pulling, working at height on ladders and with trees, given his ongoing lower leg symptoms. He still had reduced power and restrictions in his range of motion, as well as a chronic back condition, which gave rise to safety risks in performing such work. He would also have difficulty maintaining prolonged postural positions, standing for long periods, or bending down, including to paint or move paint tins. 28. On the video footage, Dr Low had seen Mr Burnett help manoeuvre a trailer, climb a ladder and remove a light, which involved bending. But he said that he was not aware of the degree of discomfort involved and considered those activities to be contrary to medical advice, given Mr Burnett's underlying injuries and the risk which what he had done posed of aggravating them. He also considered that Mr Burnett performing such tasks in full-time employment would involve such risk, given his assessment that he was only capable of some part-time sedentary work. 29. Dr Low also considered that handyman type work carried such risks, given assessments he had undertaken of what such work involved. He agreed that Mr Burnett could use a screwdriver and undertake light gardening work for short periods. 30. Professor Bright provided a vocational assessment report in which he examined Mr Burnett's personal, educational and work history before the accident, as well as his ongoing medical issues and the treatments he was pursuing. He undertook a jobs skills analysis and testing which established that his reading was sufficient for him to undertake clerical tasks, consistent with the computer and office administration course he had undertaken in 2021. 31. Mr Burnett's work constraints were identified to be pain in his legs, difficulty controlling his body temperature and the regular treatment he was pursuing. The adjustment disorder which he had been suffering had been diagnosed in 2020 to be in remission and he was no longer reporting continuing disabilities from psychiatric symptoms. He had also been assessed by Dr Dalton, a rehabilitation specialist, in August 2021 to have a capacity for part-time sedentary work, but it was then noted that he had no motivation to return to work other than his previous occupation. 32. Professor Bright considered that his most suitable vocational options were likely to be less physically demanding than his pre-injury role and that he would most likely be suited to working part-time, possibly up to 20 hours per week over four days for five hours, but that depended on medical opinion. Positions identified for which Mr Burnett had transferable skills and had regard to his psychological perspective, were order clerk; call centre operator helping with renovations such as that run by the Dulux company; security alarm monitor; purchasing officer; gatekeeper; and truck despatcher. 33. I will return to the Professor's evidence in cross-examination when dealing with future economic loss. 34. Other experts whose reports are in evidence were not required for cross-examination. 35. They included Dr Tong, a musculoskeletal consultant, who provided a report in September 2019 when he assessed Mr Burnett's whole person impairment; Dr Parmegiani, who provided a report in August 2020 about the psychiatric sequelae of Mr Burnett's accident; the neurosurgeon Dr Dan's March 2021 and October 2022 reports; that of the consultant physician in rehabilitation; and Dr Dalton. The joint report of Dr Dan and Dr Dalton was also in evidence. 36. Dr Tong's opinions included that the treatment Mr Burnett had received to that point had been necessary, given his injuries; that they and the significant impairment they had caused required him to pursue physiotherapy, pain treatment, and ongoing reviews by a neurosurgeon; and that he was at risk of future complications, including pseudoarthrosis and adjacent segment disease, which might require further surgery. 37. In his first report, Dr Dan considered that Mr Burnett's ongoing limitations would preclude him from his former work. He considered that they would, however, permit light semi-sedentary activities which allowed him to move around from time to time, but did not involve significant periods of concentration, because of the effects of his medications and pain. Dr Dan also noted that he had observed Mr Burnett's resentment and frustration with his incapacity. 38. In his second report, Dr Dan considered reports of other experts who had examined Mr Burnett, agreeing that he was capable of carrying out light semi-sedentary activities not involving lifting, carrying, or repetitive bending. He opined that his vocational options had to be less demanding than pre-injury, but that Mr Burnett saw himself as disabled and unable to work. 39. Dr Parmegiani explained the anxiety and depression Mr Burnett experienced after the accident, when he feared he would be a paraplegic. He described Mr Burnett's weight gain in hospital due to inactivity and his subsequent weight loss, interrupted because his exercise regimen was disrupted by the effects of the pandemic; the medication he had to take; his sleep difficulties; his periods of depression; the treatment he pursued with psychologists; and what he was then pursuing by way of exercise and treatment. 40. Dr Parmegiani concluded that his injuries were best described as an adjustment disorder with mixed anxiety and depressed mood, which had contributed to the breakdown of his marriage. Because he was psychologically resilient, his symptoms improved over time, allowing him to pursue a range of social activities within his physical limitations, as well as the basic computer course he had completed. His psychiatric injuries did not preclude future employment, but allowance needed to be made for further sessions with a psychologist, given the help such treatment provided him with. 41. In his October 2022 report, Dr Brew described the neurological symptoms Mr Burnett was still experiencing at times to his right shoulder at night, once a week; weakness and numbness in his right arm which did not affect its functioning; numbness and pain in his lower back; episodic pain in his neck, up to 10 times a day; and pain which radiates from his buttocks into both legs and toes, which limits his ability to walk, especially on uncovered flooring. He further explained Mr Burnett's hypersensitivity to cold, which extends to his calves; and unsteadiness which affects his walking, and his ability to stand from a chair; and that he requires the use of a stick, when going up an incline. 42. Dr Brew's examination was consistent with the symptoms Mr Burnett described, necessitating, in his opinion, extensive domestic assistance in the period after his injury and a need for ongoing support, despite he then being able to undertake various tasks himself. There had been significant improvement, but more was considered to be unlikely and it was also likely that he would require further surgery and indefinite pain medications. But he was then found to be potentially capable of employment in some administrative capacity. 43. Dr Dalton concluded that Mr Burnett's main disabilities were lack of mobility and agility, particularly on uneven ground; single leg standing; and a reduced tolerance for walking distances or fast, especially when negotiating inclines and uneven ground. He had to carry a stick outdoors because of his balance problems and risk of falls and had a limited tolerance for physical activity because of heaviness, fatigue and neuropathic pain in both lower limbs and his back pain, which reduced his tolerance for prolonged stationary positions. He thus remained dependent on anti-pseudo arthritic and pain medication and also required ongoing treatment such as a graded exercise program, physiotherapy and psychological support. Further surgery could also be needed, for example, if he experienced loosening of hardware. 44. Dr Dalton considered that Mr Burnett would be able to take up suitable work in a sedentary part-time capacity, provided he could move his posture and with manual handling restrictions in place. But he remained focussed on his disability, having no wish or motivation to do anything other than return to his former work. He also required ongoing, identified domestic assistance, given his issues with balance, lifting and squatting, but he could do more than when assessed by iCare, given his improvements. Dr Dalton assessed this to be for a total of four hours per day, no longer eight, if suitable equipment was provided. 45. In their April 2023 joint report, Dr Dan and Dr Brew agreed that Mr Burnett's level of pain varied according to activity, ranging from four to seven out of 10, the latter relating to his upper limb, which had developed after March 2021, but was not related to the subject injuries. They also agreed he had residual symptoms in his lower limbs and required domestic assistance for anything but light cleaning activities. While he could undertake semi-sedentary activities which allowed him to move around, he was not able to undertake activities which required concentration, because of his pain and the medication he was still taking. That situation would continue indefinitely, although there was a small chance he would require further surgery, because of the fusion he had undergone. 46. In his April 2023 report, Dr Lee, the neurologist, explained Mr Burnett's various ongoing symptoms and recommended a trial C6 nerve block to treat his upper right limb radiculopathy. 47. In Ms Sale's December 2022 report, she explained her opinions about Mr Burnett's past needs and that he still had a need for future commercial assistance, then still being unable to safely perform heavier domestic tasks. She considered that this would increase if he had further spinal surgery. She also dealt with his diagnosis with Renaud's disease in 2021 given his ongoing problems with the cold and the treatment he had pursued to deal with that, including swimming, use of spa and medication. 48. Ms Sale described in detail tasks Mr Burnett still had difficulty performing, given his impaired gait and reduced ability to stand and walk; sit; work below knee level; bend or stoop; lift and carry, which was limited to about seven kilograms; use stairs under load without external support; balance; and chronic pain. While he was contributing to domestic tasks within his capacity, which had increased over time due to his adoption of strategies which improved his level of independence, she concluded that he still required commercial assistance for heavier domestic and property maintenance tasks still beyond his capacity, despite living with his second wife and having the assistance she provided. Equipment and home modifications which would be of assistance were also identified. 49. Ms Sale also explained the past assistance he had received, commercially and gratuitously in 10 stages. They commenced with his hospitalisation, with the care he had been provided by iCare ceasing in September 2022 and care then being provided by his wife after she moved to Australia from Thailand to join him. Mr Burnett's capacity at each stage was explained in a table, which also identified what level of gratuitous and commercial care he had received at each stage. 50. Ms Sale considered that he still had a need for future commercial care, observing that his wife was likely to pursue employment and would then not be able to continue providing all the care she was providing. 51. In her November 2021 report, Ms Smith concluded that Mr Burnett required less care than Ms Sale had determined, in some of the various stages identified, as well as more limited future care. She did accept that he required ongoing allied health support, based on her views of medical opinions, as well as occupational therapy advice. She noted that he was still seeing a psychologist fortnightly and that because of problems with his memory, he was using aids such as alarms on his phone. He was then still receiving eight hours of paid assistance per week. 52. In their joint report, Ms Sale and Ms Smith agreed that Mr Burnett had a need for past gratuitous care and that he had received paid care and other assistance as well in the past, which he had begun receiving after his discharge from hospital. They did not agree about the extent of his pre-injury contribution to domestic tasks; his requirements for equipment and home modification; the amount of gratuitous care he had received in the past; and what his future care requirements were. 53. They were not, however, required for cross-examination. Non-economic loss must be assessed to be 45% 1. On all this evidence, it must be accepted that the very considerable pain and suffering which began with Mr Burnett's fall, that bringing his then successful working life to an end, still continues albeit, fortunately, now to a much lesser degree. 2. Despite that improvement, there can be no doubt that Mr Burnett's non- economic loss is substantial, given the ongoing impact of all of his injuries, not only for his working life, but his life as a whole. 3. The consequences of Mr Burnett's fall included the loss of his former healthy active life and the diminished capacity and the ongoing pain and other problems with his memory and concentration which he now has to live with. He is also no longer able to pursue activities such as the running and surfing he earlier enjoyed. Because of his limitations he has also sold his fishing boat and since the accident has gone deep sea fishing only once on a friend's boat, which he found painful, that being another activity he is no longer able to enjoy as he previously did. 4. Mr Burnett can also no longer pursue Griswold's Christmas light business from which he not only derived income, but pleasure, as was his evidence. His resumption of decorating his own house, with the assistance he described and even at risk of injury when he used the ladder to pull a light stuck on a tree, supports this. 5. On all of the evidence, I am unable to accept Dr Maxwell's view that Mr Burnett's position as he ages, will essentially not be more difficult than it would have been, had he not fallen as he did, given the extent of his recovery. 6. Th extent of Mr Burnett's improvement was demonstrated by his own evidence and that of the experts, as well as by the surveillance footage and what can there be seen. Dr Giblin's evidence that ceasing to pursue the regime which brought him to that point risks deterioration even greater than that which would accompany his normal ageing, I am satisfied must be accepted as a matter of both logic and common sense given all of the evidence I have discussed. They cannot be ignored when resolving the experts' dispute I have explained. 7. I am also satisfied that Mr Burnett is now more susceptible to and at real risk of greater deterioration as he ages, than was the case before his fall, given the spinal fusions which he required as a result and the point to which he has been able to recover. On all of the evidence, I am unable to accept that an even better recovery is now likely to result. I also accept that Mr Burnett is now also at risk of requiring further surgery to his spine, a risk which did not exist before his fall. These are all matters relevant to the assessment of his non-economic loss. 8. There can also be no question that Mr Burnett will have to continue actively pursuing the regime which has enabled him to recover to the point that he has, if he is to maintain that improvement and the reduced pain treatment with which he is now able to manage. But what continues to be necessary includes taking medication which adversely affects his ability to concentrate, for example. Consistent with his positive approach, Mr Burnett did undertake a computer course after his fall, but has still not attempted any paid work, to which I will return. That accords with the ongoing problems which he has to manage, including with pain, fatigue and concentration, which he did not previously have to deal with. 9. That he is now incapable of pursuing the life which he would have continued, but for his fall, I am satisfied is well established. The limitations on which the issue over his capacity to successfully pursue even part-time sedentary work turns were simply not present before his fall, but what he must now live with. 10. Having taken all of the evidence and the parties' competing cases into account, I have thus arrived at the conclusion that Mr Burnett has suffered 45% non-economic loss. Past economic loss 1. Mr Burnett calculated this loss to be $351,204, based on claimed net weekly earnings of $1,400 per week and 11% superannuation. His calculations also had regard to some $600 per week in respect of how Griswold's treated certain business expenses and depreciation. Manhattan calculated this loss to be $190,518, based on Mr Burnett's reported actual earnings in the years before his accident of some $843 per week, he having extracted from Griswold's its entire profits, no earnings having been retained in the business and he having not been paid any superannuation. 2. I am satisfied that Mr Burnett's calculations cannot be accepted. The parties' cases 1. The parties relied on what was explained in Assessment of Damages for Personal Injury and Death by Harold Luntz at [6.5.3]: "Loss of Profits must result from injury. Profits that reflect a return on the labour of others, a return on invested capital and the results of an active or inactive market, are not usually subject to the owner's influence and the plaintiff's disability cannot be said to have caused any loss of profits of this sort. Thus, merchants, manufacturers, members of partnerships and industrial executives will seldom have a claim for loss of profits as such. On the other hand, where profits predominantly reflect the pecuniary value of the plaintiff's physical and intellectual labours (as in the case, for example, of private entrepreneurs, self-employed professionals and other persons whose earnings are dependent on fees), the labour of others and the investment of capital are relatively inconsequential and the loss of profits can properly be attributed to the plaintiff's disability." 1. Mr Burnett's case was that he had lost his earning capacity and even now had no likelihood of being able to find work which fits with his limited physical and mental stamina. Quantification of his past economic loss depended on what he could have earned as a handyman and Christmas light installer, as well as choices he had been able to make in structuring the distribution of the income lost to him. That included financial benefits such as his telephone and internet costs which had been met by Griswold's, as well as benefits derived from depreciation and use of a car. 2. The income generated by Griswold's business as the result of his labour had been between $247,917 and $285,000, less materials, supplies and subcontractors. Before the accident such expenditure in 2017 had amounted to some $131,000 and in 2018, $112,624. Depreciation was also claimed to have resulted in Mr Burnett having been some $600 net per week better off. 3. In the result, he contended that it should be accepted that since the accident he had lost some $1,400 net per week, that being a fair estimate when considered in light of average weekly earnings for full-time males in NSW in 2018, of $1,340 net. 4. This was disputed by Manhattan, which relied on the accountant Ms Bateman's opinions, which were based on Griswold's accounts and Mr Burnett's tax returns. She calculated Mr Burnett's net weekly earnings to have been $1,101 in 2017 and $857 in 2018, for reasons explained in her reports, which included that he had not been paid any superannuation. That was submitted to reflect that Griswold's was a shell, it being the vehicle which Mr Burnett used to generate his entire income each year. Decisions he had made translated into a weekly net figure per week on which his damages had to be calculated. 5. But that figure should not be increased to add back for the claimed depreciation, Griswold's not having expended the claimed sum, having earlier paid for the business expenses incurred when assets such as its motor vehicle were acquired. The evidence 1. Mr Burnett explained his working arrangements in cross-examination. They were that between about November and January each year he was heavily engaged in Griswold's Christmas tree light business at places such as McDonalds. Some of his income was derived from profits which this part of the business generated for Griswold's. 2. Otherwise his earnings came from the wages he received from Griswold's while performing work for Manhattan. His income tax returns reflected both these sources of income and Griswold's accounts indicated that it did not retain profits. 3. Griswold's engaged from two up to five assistants for each of its lighting jobs, which Mr Burnett directed and supervised, to design the lights and working hands on to help install them. The invoices were not addressed in Mr Burnett's evidence, but invoices to which he was taken established the main hours worked by the particular number of men engaged on specific jobs. In the case of one January 2018 invoice, for example, that reflected a $50 per hour charge for each man, with those men each being paid $40 per hour. It was his evidence that the invoices reflected what was charged for their work, as well as that which he performed. 4. That is also consistent with Griswold's records, which reflect that in 2018, for example, $41,531 was spent on contractors and subcontractors, as was explored with Ms Bateman in her cross-examination. She agreed that there were no such payments reflected in the 2017 accounts. But she explained that they could have been included in that year's figure for materials and supplies. 5. Ms Bateman said in her first report that she had insufficient post-accident information to calculate Mr Burnett's past economic loss, even though she had considered both Griswold's financial accounts from 2017 to 2021 and Mr Burnett's tax returns for the years from 2017 to 2019. This information showed that Griswold's had continued to trade in a reduced manner after the accident, but had not made profits in 2020 or 2021. 6. In her second report, however, assuming that Mr Burnett had nil residual earnings, Ms Bateman assessed his past economic loss to have been $211,496 to 30 April 2023 in her assessment 1. She there explained that had been based on average net weekly earnings of $979 in 2017 and 2018. Other scenarios were also dealt with, which it is unnecessary to explain. 7. In cross-examination, Ms Bateman was taken to her assessment 1. The annexures to her second report showed that there was also information about earnings and expenditure in 2019, up to the date of the accident in February, but that they had not been taken into account in her calculations. 8. It was put to Ms Bateman that all of Griswold's income was the product of Mr Burnett's labour. She explained that this was not consistent with invoices which had referred to work performed by a number of people, identified for example as person 1 and person 2. She agreed that she had assumed that a number of people had thus been on particular sites and that there had been different charge out rates for Mr Burnett. That accorded with his evidence. 9. Ms Bateman was also cross-examined about depreciation of plant and equipment and benefits such as Mr Burnett's private use of the internet and vehicle. She explained that Griswold's accounts should have only reflected business use, or the payment of fringe benefits tax or reimbursement for private usage. Mr Burnett's past economic loss cannot be calculated in the way for which he contended 1. I am satisfied that Mr Burnett's approach cannot be accepted. 2. The evidence established that but for the negligence, Mr Burnett would have continued working as an employee and director of Griswold's, generating income commensurate with what he was earning before his accident. 3. I do not accept that he had any plans to change his then working arrangements, with the result that Manhattan's case that he had decided to cease performing work for it cannot be accepted. But nor can damages be calculated on average weekly earnings and the superannuation entitlements such earnings would attract. Mr Burnett never earned such a level of income before his fall. 4. What he earned was the result of his own labour, as well as the profit on the income which was generated by the labour of the others whom Griswold's engaged in the Christmas light business. This generated both the wages he was paid and the profits he received from Griswold's, all of which he disclosed in his tax returns. 5. His work and Griswold's profits never generated income of some $1,400 per week, even as the result of the labour of others. Nor did it result in the payment of any superannuation. 6. It follows that reliance on what average weekly earnings were cannot provide a basis for departing from the earnings Mr Burnett actually derived from the work he and Griswold's were pursuing with Manhattan and the Christmas light business. The evidence was that but for his accident, this is what they would have continued doing. That is the basis on which his past economic loss must be calculated. 7. I am also not persuaded that how Griswold's met certain expenses which Mr Burnett would otherwise have had to meet, or the benefits he claimed flowed from certain depreciation can properly be taken into account in determining Mr Burnett's past economic loss, in the way for which he contended. 8. That does not accord with the approach discussed by Luntz, how Griswold's incurred and paid for what was claimed, or Ms Bateman's evidence about how such expenses should be treated. 9. I have thus concluded that Manhattan's calculations of past economic loss, in accordance with Ms Bateman's approach, must be accepted. Future economic loss 1. Section 13 of the Civil Liability Act regulates this claim. It provides: 13 Future economic loss—claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. 1. Mr Burnett claimed this loss to be $675,443, also calculated by reference to the claimed $1,400 net per week income plus superannuation, on the assumption that he has no remaining earning capacity and will not work again. 2. Manhattan contended that he had suffered no future economic loss, given not only his remaining earning capacity and the likelihood that he can obtain paid employment, but because the evidence established that Griswold's could continue to pursue its Christmas tree lights business. That would not require Mr Burnett himself to work at height as Griswold's could employ the same people, whom he could supervise. 3. I am satisfied that the evidence does establish future economic loss; that the conclusion that none has been suffered is not available; that Mr Burnett is unlikely to work again; and that Griswold's is thus also unlikely to be able to resume its Christmas tree lights business. 4. But I also accept that this loss cannot be calculated by the claimed $1,400 net per week income plus superannuation, the evidence not establishing that he had such an earning capacity. Its assessment must also be approached by reference to what he earned in the past. Applicable principles 1. Compensation for loss of earning capacity is awarded because the diminution in an injured plaintiff's earning capacity "is or may be productive of financial loss": Graham v Baker (1961) 106 CLR 340 at 347; [1961] HCA 48. In Rabay & Anor v Bristow [2005] NSWCA 199 it was explained at [73]-[74] and [79] that: * it is for the plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller (1981) 150 CLR 402 at 412; [1981] HCA 72; * but the injured plaintiff need not prove what employment he or she "is not incapacitated from performing": Rabay at [73]; * it is for the defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Luntz, Assessment of Damages for Personal Injury and Death at [1.9.20]; * an employment history of a consistent pattern of full-time employment in work which might fairly be described as having been of a heavy manual nature may be taken into account in such an assessment: Husher v Husher (1999) 197 CLR 138 at 143; [1999] HCA 47; and * the assessment of future economic loss involves reference to future or hypothetical events, by a "process of estimation of possibility" explained in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643; [1990] HCA 20. This is "necessarily an imprecise matter of estimation, carried out within broad parameters": Donald v McKeown [2004] NSWCA 285 at [38]. 1. There is a distinction between "working capacity" and "earning capacity", those terms not being co-extensive. "Earning capacity" recognises the realities of the world of employment: South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]. 2. An individual who has a physical and mental ability to undertake certain tasks, does not necessarily have a significant residual earning capacity. That must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. Thus, a person in middle age "who has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation": Nominal Defendant v Livaja [2011] NSWCA 121 at [65]. The parties' cases 1. Mr Burnett's case was that the evidence established he was not fit to work full-time and that his earning capacity remained hypothetical, even though this claim was also advanced on the basis of net weekly earnings of $1,400 and additional superannuation. The surveillance footage established that he could do certain tasks for limited periods, but what was there to be seen did not establish his capacity for particular work. It followed that Manhattan had failed to discharge its onus on this issue: Mead v Kerney [2012] NSWCA 215. 2. Mr Burnett relied on what was said in Mead at [34]: "His theoretical residual earning capacity was thus of no value to him in this period. Without evidence that the respondent's condition will improve or be accommodated by future employment markets, it cannot be concluded that his theoretical residual earning capacity will be of any use to him in the future. As observed in the State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64] and [71], Kallouf at [80] and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24], evidence of the position between an accident and trial may be a good indicator of current and future earning potential." 1. Manhattan contended that the evidence did not permit this assessment to be undertaken on the basis that Mr Burnett had no residual earning capacity. That was because the surveillance footage established that he was capable of still operating the Christmas tree light installation business in which Griswold's had in the past engaged at least four additional people to undertake installations. His cross-examination established that he still had the capacity to operate that business, because he could avoid himself working at height, by telling others what to do. 2. That business might not have been in operation one year because of his injuries. But there was no reason why it could not have been resumed in the next, given what it involved and what the surveillance footage showed Mr Burnett later doing at his home. 3. Professor Bright's evidence about the occupations which Mr Burnett's injuries still permitted him to pursue, including clerical or call centre work, or working as a security alarm monitor, purchasing officer or truck dispatcher, given his previous experience and testing scores also had to be accepted. 4. What was claimed in relation to losses flowing from how he had structured Griswold's business could also not be accepted, including for example that his vehicle was used 100% for the business. That was because no account had been taken of his personal use, as the evidence of the accounting expert Ms Bateman established was required. 5. Her evidence established that in the years before the accident Mr Burnett had derived income from Griswold's by way of wages and director's fees which effectively constituted the entirety of its earnings. It followed that his earning capacity had to be assessed as being equal to that income, there having been no income splitting or retention of earnings. The evidence 1. Mr Burnett has not worked since his fall and despite the extent of his remarkable recovery, still did not believe that he could. I am satisfied that this is what he does believe and that despite his success in pursuing his rehabilitation, he has not succeeded to the point where even now he considers that he can perform even part-time sedentary work, given his ongoing pain, other limitations and the challenges they continue to present him. 2. I have discussed the evidence of the experts and what the surveillance footage showed. I am not persuaded that it establishes that for which Manhattan contended, doubting as I do that there is a proper basis for accepting Dr Maxwell's opinions about the extent of Mr Burnett's recovery and his current or likely future capacity, given all the other evidence I have referred to, notwithstanding what the footage showed. Mr Burnett has no future earning capacity 1. On the evidence, I am satisfied that Mr Burnett has no future earning capacity. Despite what was pursued with him in cross-examination and what he accepted, that his remaining earning capacity "is or may be productive of financial loss", must be accepted. 2. But for the accident and his resulting injuries, Mr Burnett would have continued the work he was pursuing through Griswold's. But it is now quite unlikely that he will work again in paid employment, or that Griswold's will resume its Christmas light work. 3. What the authorities earlier referred to are concerned with is whether it can be concluded, given Mr Burnett's ongoing pain and limitations, that suitable employment is likely to be practically available to him in the future. Mr Burnett does not have the capacity to do the work he formerly did for Manhattan and Griswold's 1. Mr Burnett was a tradesman painter, but for years had pursued Griswold's business, himself undertaking maintenance work for Manhattan, as well as conducting its Christmas tree lighting business, which it had pursued by engaging a number of other workers, for part of each year. That is what he intended to continue doing, but I am satisfied, no longer has the capacity to do. 2. Mr Burnett denied having decided even before the accident not to do any further maintenance work for Manhattan. I am satisfied this evidence must also be accepted. 3. That was a considerable part of Mr Burnett's work and Griswold's business before the accident and there was nothing in the evidence consistent with him having made a decision before his fall to stop performing that work. That accords with it providing a large part of his livelihood. 4. I also accept that what he told the inspector in the hospital about not returning to such work reflected Mr Burnett's response to the medical advice he had there received soon after the fall. Namely, that the serious injuries he had suffered meant that there was a chance he would not walk again, with the result that he then believed he was a "cripple", as he put it. 5. I am also satisfied that Mr Burnett can no longer undertake the maintenance work which he previously undertook, especially given the heavy manual labour it involved at times. Nor can he pursue the Christmas light business. Even if he did not work at height himself, that such work was sedentary, or capable of being performed only for the part-time hours that he has been found to have the capacity to work, may not be accepted. His disagreement that he could perform such work is supported by the evidence of the problems which the medication he needs to continue taking causes, including for his concentration and the fatigue which he experiences. 6. It was put to Mr Burnett that he was able to undertake property maintenance and painting work, because he could climb a ladder. Despite what the surveillance video showed, his denial must be accepted. What he did that day was precarious and patently risky, given all of his ongoing problems. That such work is not safely available to him in future, given the diminished strength of his legs, altered gait, problems with balance, pain and concentration, as was Dr Low's view, must be accepted. 7. In cross-examination, it was also put to Mr Burnett that he still had the capacity to conduct the Christmas tree light business, still having the truck and equipment he had used in that business and the ability to employ and direct others in the necessary work. He did not accept this, explaining that he now had to avoid heights and had anxiety problems when he saw others working at heights. 8. Mr Burnett also explained how he had once installed Christmas lights at his home after the accident, with the help of those who had previously worked for Griswold's, so that he did not have to work at height. He had later climbed the ladder to remove a light from a tree, at what he volunteered, was great risk. I accept that was apparent from the footage. 9. I am not satisfied that Mr Burnett has the capacity to resume operation of Griswold's lighting business, given the hours of work that would involve on site, even if only supervising others working at height. That conclusion accords with the evidence of Dr Low, which I am satisfied must be accepted. 10. As I explained, despite what was agreed in their joint report, what the video footage showed led to considerable disagreement between Dr Maxwell and Dr Giblin. Dr Low's evidence also conflicts with that of Dr Maxwell. 11. Having considered all of the evidence, I am unable to accept Dr Maxwell's opinions about what the video established about Mr Burnett's current capacity or prospects. I am satisfied that they do not accord with either logic or common sense, given the injuries Mr Burnett suffered and the point to which he has been able to recover; the physical problems he still has to contend with; the treatment he still needs to pursue; and the deterioration and need for further surgery of which he is plainly still at risk of, especially as he ages. 12. I am thus satisfied that Dr Giblin's opinions about Mr Burnett's ongoing lack of capacity must be preferred, supported as they were by the opinions of Dr Lowe and other experts not required for cross-examination. 13. That Mr Burnett's ongoing limitations, pain, and the fatigue which still result from his injuries when he exerts himself and his ongoing problems with concentration and what he has to pursue, in order to maintain the recovery he has achieved, results in him having no residual earning capacity, must be accepted. 14. The need which he has for rest later in the day, after physically exerting himself even to the extent he now does, is consistent with his reduced use of medication for pain management; his problems with the cold and how that impacts what he is able to do even in warmer months; as well as how that impacts the time of day that he can pursue even his various current activities. 15. It follows that Manhattan's case that he has the capacity to resume the Christmas light business cannot be accepted. Mr Burnet's capacity for other work 1. As I have explained, the experts agreed that Mr Burnett now has capacity for some sedentary work. It may thus be accepted that he still does have some working capacity, which might permit him to obtain other work, such as providing advice about home maintenance or painting on a help line, for example. 2. But the evidence does not establish that he has the necessary resulting earning capacity, that depending as it does on the evidence establishing that his working capacity is capable of being accommodated by the employment market. Nor that his working capacity will be of any use to Mr Burnett in the future, despite Professor Bright's experience that other disabled people have found employment. 3. Mr Burnett does have computer skills which he had utilised in conducting Griswold's business, using MYOB software, for example, to issue quotes and invoices. He was asked about clerical work, having undertaken a computer course since his fall, but still having not pursued any work. He had also performed clerical work in the early 1980s which did not involve the use of computers, for a short period before his apprenticeship. He did not, however, believe that he could do clerical or other sedentary work even now, despite the course he completed. 4. Nor did he believe that he could manage retail work such as at Bunnings, where he would have to walk and stand for long periods, even though he had wide experience in maintenance, construction and hardware and accepted that he could give others advice about such matters. 5. Professor Bright accepted that given his age and lack of experience in the various jobs he identified as suitable, Mr Burnett would be slightly less competitive in the market. But he considered that current extremely low levels of unemployment meant that Mr Burnett would not struggle to find work, for example, as an order clerk, the roles of which were specified in Australian standards and for which his experience with Griswold's was relevant. 6. The Professor said that assessment of Mr Burnett's disabilities and ability to perform particular work were beyond his expertise, but that this role was defined to be a sedentary one, he believed involving work on screens. He also considered that Mr Burnett was capable of dealing with customers; had routinely done so before and so was suited to dealing with people on the phone, including members of the public; and so he could also work as a call centre operator. 7. But the Professor had not placed people with Mr Burnett's disabilities into such jobs, or that of a security alarm monitor, which would require him to obtain an appropriate licence. Nor in that of a purchasing officer, gate keeper or truck despatcher, where he would potentially have to work outside in a booth or office linked to a gate. 8. The Professor accepted that injured people faced barriers to employment, but his experience was that they did routinely obtain and maintain employment, even quadriplegics and those in wheelchairs. Factors such as reliability, maturity and experience were also relevant, and he was aware that some community minded employers sought to actively assist the disabled. He also considered that Mr Burnett was capable of performing the core tasks of the jobs he identified. 9. So much may be accepted, but that is not all that must be considered and established in order for it to be concluded that Mr Burnett has the claimed capacity to perform other work. I am satisfied that this was not established. Future economic loss is established 1. Mr Burnett was injured while in middle age, having spent the vast majority of his working life before his fall pursuing skilled or semi-skilled occupations through Griswold's. That work is no longer available to him because of his fall, despite the extent of his recovery. He is rightly proud of having achieved that recovery, which he has pursued with obvious difficulty. He will have to continue pursuing those efforts if he is to maintain what he has achieved. 2. It may also be accepted that he is still frustrated by his circumstances. His evidence revealed how he climbed the ladder when he could not release a light stuck in the branch of a tree beyond his reach, notwithstanding the obvious risk, given his ongoing unsteadiness. 3. Even accepting that the identified occupations on which Manhattan relied are now theoretically available to Mr Burnett, that does not establish that there is a practical likelihood of him obtaining employment in such sedentary occupations. Even if that materialised, it could only be part-time work for limited hours per day. 4. That, however, would necessitate Mr Burnett finding an employer who is not only prepared to support the ongoing consequences of the pain and limitations which he continues to suffer, but also his need to continue pursuing the activities and treatment which have enabled him to recover to the point he has, so that he can maintain that recovery. If he could not, his capacity for even such limited sedentary work would diminish. 5. I am thus not satisfied that the evidence permits the conclusion that he could succeed in finding such an employer, or that Manhattan has met the onus which falls upon it in respect of these matters. 6. To the contrary in this case, like in Sorbello, it must be accepted that the evidence does not establish that Mr Burnett has any real prospect of exploiting his limited capacity to perform some part-time work in a sedentary position. 7. That would require evidence that Mr Burnett would be able to find an employer prepared to accommodate his considerable ongoing physical and other limitations and the treatment which they continue to necessitate, as well as his need to pursue the treatments which help him maintain the physical improvement he has achieved. 8. Without this, his physical limitations will inevitably increase as his physical condition and resulting pain deteriorate, with the result that his ability to work and retain employment will also necessarily decrease, reflecting his reduced capacity. 9. That even some quadriplegics have been able to find suitable employment, as was Professor Bright's experience, is simply incapable of satisfying the evidentiary onus falling on Manhattan which is discussed in the authorities, in respect of Mr Burnett's actual likelihood of being able to exploit his residual earning capacity. 10. It follows that he has established a claimed future economic loss. I am satisfied that it must thus be calculated on the same basis as his past economic loss. Past out-of-pocket expenses 1. In final submissions, Mr Burnett calculated his past expenses for things such as medical, rehabilitation, home modifications and travel to be $427,637. Manhattan calculated this amount as $82,728, sums unexplained in the original written submissions, but later addressed. 2. When they were addressed, it emerged that the difference then lying between the parties reflected that Mr Burnett's figures rested on payments which he, Medicare, EML and iCare had actually made, Mr Burnett receiving lifetime care and support. Manhattan had instead adopted what he had initially claimed, which had only been for payments he and the workers compensation insurer had made. 3. Manhattan's case then was that there was no evidence supporting some of the claimed items for which iCare had paid, such as building modifications, case co-ordinator services, dietician, equipment and travel related expenses. It contended that such payments having been made by iCare did not establish a compensable need, which fell to Mr Burnett to prove and also that such payments did not fall into the definition of "compensation" in s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW). 4. But the evidence established various expenses which had been incurred and variously paid for. What iCare had paid for included things like taxi fares incurred during the time that Mr Burnett was unable to drive, for example, as well as commercial cleaning and other services he was provided with. Mr Burnett's home had also been modified, matters addressed in his own and the expert evidence. 5. Mr Burnett's evidence included the various impacts his injuries have had upon him, including when he travels and the resulting assistance which he has required and received. Mr Burnett's evidence was also supported by that of medical practitioners who had examined him, earlier explained, and other experts. 6. Much of this both Ms Sale and Ms Smith had considered in their reports and some of it had been agreed. 7. By a note only provided on 7 November, the parties revealed the results of their ongoing discussions after the filing and service of further affidavits which explained payments Mr Burnett had received. They had shed light on his claim for out-of-pocket expenses and Griswold's s 151Z claim, and eventually had resulted in an agreement that out-of-pocket expenses had amounted to $567,582.45, as at 28 June 2023. 8. It was also noted that Mr Burnett would continue to receive compensation payments until judgment was entered and damages were paid. It was thus intended that Griswold's would then update the payment figures and the parties would endeavour to calculate any claim under s 151Z and interest, based on my determination of liability and apportionment, if any, as well as costs. 9. In the result, I am satisfied that the damages for the claimed past out-of-pocket expenses which the parties have agreed, were established. I certainly do not accept that Mr Burnett has received more than he needed, given all of his injuries and what he pursued in his recovery, on which Manhattan relied as it did before agreement was reached. 10. Plainly, those expenses would not have been incurred, but for the injuries which the fall caused. Future out-of-pocket expenses 1. The parties' agreement did not resolve the dispute over future expenses. 2. Mr Burnett had calculated these to be $652,239 by reference to expenses he had incurred for things such as medical, rehabilitation, physio, gym, and pharmaceutical expenses. That figure had been calculated by reference to his actual expenses in the preceding 12 months, which were pursued as providing a reasonably typical guide for the future. 3. Manhattan calculated these expenses to be only $47,397. This was not revisited. The parties' cases 1. Mr Burnett's case was that his need to incur such expenses was not only likely to continue, but to increase as he aged and that Manhattan's case depended on it being accepted that in future he would, for example, require less medication and analgesics and fewer consultations, despite his ongoing problems. His calculation had also had necessary regard to a deduction for vicissitudes. 2. Manhattan's case relied on past expenditure not necessarily translating into future need. Its case otherwise rested on the improvements which Mr Burnett had achieved by his pursuit of activities which had resulted in that improvement. This claim is established 1. I have already explained how Mr Burnett successfully pursued his rehabilitation, how he has been able to reduce his pain medication and the treatment and medication he still requires and pursues. That is reflected in the agreement reached in relation to past expenses. I am well satisfied that if he is to maintain his current position, such expenditure will necessarily continue. 2. I am also satisfied that Manhattan's approach did not take necessary account of the need to maintain Mr Burnett's recovery. That depends on his ongoing pursuit of what past expenses were incurred for. That he has a continuing need for medical assistance, pharmaceuticals and the treatment which has enabled his recovery, the need for which is unlikely to diminish further, given what all the expert evidence I have discussed establishes, must be accepted. 3. His approach to the calculation of these damages must thus be accepted. That is supported by the real risk which the evidence establishes exists, that Mr Burnett might in future incur even greater expenses, given the real risk of deterioration which he faces, including because his spine may require further treatment despite all that he does to ensure that he does not have to face this. 4. I consider that the agreement which the parties finally were able to reach in relation to past out-of-pocket expenses, also supports these conclusions. Past care 1. Mr Burnett calculated this to be $97,674 and Manhattan, $50,456. 2. Mr Burnett's calculations reflected not only his evidence about the paid care he had required and received in the past, but what his wife had provided gratuitously, as well as the evidence of the occupational therapists. He contended those past payments would not have been made if he did not require that assistance. 3. Manhattan contended that would not be accepted as necessarily establishing Mr Burnett's need for the care he had received and that s 15 of the Civil Liability Act precluded the damages pursued for the claimed gratuitous care. The principles 1. Section 15(2) of the Civil Liability Act precludes damages for gratuitous attendant care services, defined to include those of a domestic nature, for which a claimant has not paid, "unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury." 1. These are factual questions to be determined on what has occurred or will occur: Coles Supermarkets Australia Pty Ltd v Haleluka [2012] NSWCA 343 at [52]. There it was also explained that s 15 does not require such "services being assessed as though they were performed by professional providers or by reference to any posited objective standard." 2. Further, such services must be provided for at least six hours per week and for a period of at least six consecutive months: s 15(3). There was no issue that the statutory thresholds had been satisfied. The evidence 1. There is no suggestion that before the accident Mr Burnett had any need for gratuitous attendant care services. The evidence establishes the nature of the domestic role he played before his fall, which then ceased, with the result his need for care which Ms Sale and Ms Smith accepted he had after his fall, which decreased over time. 2. Mr Burnett's evidence in his first December 2021 statement included that his accident had brought his first marriage to an end and that he was then receiving a total of eight hours per week domestic assistance from iCare for things such as cleaning, laundry and bed making, which he could not manage himself, as well as with lawnmowing. 3. By September 2022, Mr Burnett was relying on Ms Sukwong for domestic assistance, she providing three hours a day cleaning, with him by then being able to perform a small amount of such work, as well as two hours cooking, lawnmowing and light gardening for four hours per week. He was by then also able to manage some mowing but found that it increased his pain and restricted the movement in his legs. Ms Sukwong's evidence supported that of Mr Burnett, but she was not required for cross-examination. 4. This evidence also accorded with the histories Mr Burnett has given. In his August 2020 report, Dr Low considered that Mr Burnett would continue relying on external assistance for the foreseeable future, given that in his opinion, he was unable to tolerate regular household tasks including mopping, vacuuming, cleaning bathrooms and gardening, given the injuries he had sustained. 5. In his September 2021 report, Dr Low noted Mr Burnett was then living with his 16-year-old son and was able to undertake simple tasks such as hanging out washing, but he continued to have the assistance of cleaners and assistance with gardening. 6. In his June 2022 report, Dr Low did not deal with these matters. In his April 2023 report, he noted that domestic duties were then largely undertaken by Ms Sukwong and that Mr Burnett then reported that "he is unable to vacuum, mop, clean bathrooms or change bed sheets for long periods of time" and that he "may assist with simple tasks such as cooking, unloading the dishwasher and occasional gardening activities." 7. In his cross-examination, Mr Burnett agreed that he could by then do such tasks, including using the whipper snipper he could be seen operating on the footage. 8. This was supported by the conclusions that Ms Sale and Ms Smith reached in their April 2023 joint report. They agreed that Mr Burnett had a requirement for past gratuitous personal care after he was discharged from hospital, as well as a requirement for future domestic care. But they did not agree about all that he required. 9. Ms Smith considered that initially, when Mr Burnett received no assistance at home after his discharge from hospital, given the other residents and his pre-accident reported level of contribution, he required seven hours per week. When he was provided with assistance by iCare, he received eight hours per week for domestic tasks, as well as help with the garden and maintenance. That continued after his first wife left him in October 2019, but Ms Sale considered that he did not then require more assistance. 10. Ms Sale considered that on discharge, when Mr Burnett was mobilising with crutches and had limited standing and walking tolerance and was using a wheelchair outside, he required 11.25 hours gratuitous care. She considered that he needed more assistance than he was later provided by iCare, recommending an additional 6.25 hours, given all he had previously done, his then reported falls and inability to drive. After his separation, 3.25 hours more were recommended, given his psychological deterioration at that point, but later lesser or no requirements at times when he travelled to Thailand. 11. Commercial care had ceased in September 2022 and Ms Sale assessed that Ms Sukwong then provided some 5.65 hours of gratuitous care. Ms Sale and Ms Smith also agreed that his injuries had left Mr Burnett at increased risk of falls, which meant that some home modifications were recommended, but he had not installed railings during his post-accident renovations. Other equipment was also recommended to maintain his current functional capacity. 12. When he was cross-examined Mr Burnett was also asked: "Q. I just suggest to you that had you met your wife before the accident she would still do this amount of housework? A. Well I was married before the accident. Q. I know, but ignoring, it's just a hypothetical. A. Yeah. Q. Had you met her before the accident she would still do this same amount of housework, wouldn't she? A. Yes." 1. Manhattan relied on this to submit that consideration would have to be given to what domestic assistance Ms Sukwong would have provided, but for his accident. The claim is established 1. On all of the evidence I have discussed, I am satisfied that it must be accepted that Mr Burnett did require the care he has received since his fall, as well as care he required after discharge from hospital, but did not receive. Consistent with his recovery, he received less paid care over time, as his capacity to do more himself improved. Eventually, much of his care was provided by Ms Sukwong. 2. I am also satisfied that Mr Burnett's explanation of his improvement over time, but of his ongoing need for the care which he received must also be accepted, given the nature of his injuries, what he had to do to improve his condition and the real risk of deterioration which he faces even now. 3. The evidence certainly establishes that had Mr Burnett not remarried as he did, he would have had to pursue paid care, given his ongoing needs. But his evidence that if he had not been injured, Ms Sukwong would still have undertaken the domestic tasks which she took on must also be taken into account, given the requirements of s 15(2)(b). 4. That must have the result that the order Mr Burnett sought cannot be made in the terms he sought, he not having met the onus which that provision imposes upon him. In the result, the damages awarded cannot comprehend that aspect of his claim. 5. These damages thus must be confined to the past paid care Mr Burnett received and that which he required after release from hospital but did not receive, which should be assessed at the same level as he was initially provided by iCare. That calculation must also now be undertaken by the parties. Future care 1. Mr Burnett calculated this to be $396,002 to $640,592, with the final sum depending on whether the care was gratuitous or commercial. On his approach $500,000 properly balanced the possibilities which had to be considered. Manhattan rejected this, it calculating the appropriate figure only to be $21,986. The parties' cases 1. Mr Burnett's case was that while he was presently receiving the care he still needed on a gratuitous basis from his wife, given that his need for care will last over his lifetime, account also had to be taken of the possibility that he may in future require commercial care, as he had previously. For example, in the event of the breakdown of his marriage or his wife's death. 2. Thus, the proposed compromised figure was pursued as being appropriate in all his circumstances, given all the time that he might still live and approaching the possibilities which arose for consideration in accordance with Malec v Hutton. 3. Manhattan contended that such a sum could not be awarded, given Mr Burnett's concession in cross-examination that had he met his wife before his accident, she would still be doing the same amount of housework and that there was no evidence that he would engage commercial assistance if he had the means to do so. 4. Further, while Dr Giblin and Dr Maxwell had agreed that Mr Burnett required an hour of commercial assistance per week, evidence to which no objection was made, such evidence was "not the kind of 'expertise' which is normally attributed to orthopaedic surgeons" and so was clearly inadmissible: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [93]. There must be damages for future care 1. Damages in respect of a need for commercial domestic assistance likely to arise in the future, after the availability of gratuitous assistance ceases may be awarded: The Nominal Defendant v Lane [2004] NSWCA 405 at [75]. That depends on the evidence. In that case, the evidence established that commercial assistance was likely to be needed after the plaintiff's mother reached age 65, it being unlikely that other gratuitous care would then be available. 2. In Miller v Galderisi [2009] NSWCA 353, the evidence established a need for additional domestic assistance as a result of the accident, of four hours per week, then also being provided by the plaintiff's wife. Account could thus be taken of that circumstance changing in the future, with the result that domestic assistance would foreseeably be required from a commercial provider: at [19]. 3. It was explained that the relevant variables to take into account in such a case were life expectancy, there 24 years, the respondent being aged 61 years old; the respondent's medical history, which demonstrated a significant possibility that he would not survive until age 85 years, with the result a necessary discount; the proportion of disabilities resulting from a pre-existing condition and not from the accident, which gave rise to a significant possibility that further ill health would overwhelm the needs created by the accident; due to that ill health, the fact that age alone was likely to create a similar need for domestic assistance in later years, to that created by the accident; and the ability and willingness of family members to provide assistance: at [20]-[21]. 4. In this case, Mr Burnett was aged 52 at the time of the accident and now has a life expectancy of some 27 years; he had no relevant pre-existing ill health which needs to be considered; it was the accident alone which gave rise to his ongoing need for care, now at the level which is being provided by his wife; there is no suggestion that such assistance would be provided gratuitously by anyone else if her assistance ceased; and there is a real possibility that she will not always be willing or able to continue providing that care in the future. 5. That could result from the breakdown of the marriage, or Ms Sukwong no longer being able to provide the care she now provides him, as the result of her own health, age or if she took up employment, for example; or if she is no longer willing to do so. 6. Determining Mr Burnett's loss on this account in the future must be approached in the way explained in Malec v Hutton. There it was observed at 643: "If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high – 99.9 per cent – or very low – 0.1 per cent. But unless the chance is so low as to be regarded as speculative – say less than 1 per cent – or so high as to be practically certain – say over 99 per cent – the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded." 1. I am not persuaded that the possibility that Ms Sukwong will not continue providing the care Mr Burnett requires in future is so low as to not require any damages being awarded to him on this account. That is because the possibilities which arise for consideration are not fanciful, or even slight. For instance, there are undoubtedly a high number of marriages nowadays which break down and end in divorce. I consider that is a matter of which judicial notice must sensibly be taken. 2. The guiding principle is that "wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court 'notices' it, either simpliciter if it is at once satisfied of the fact without more, or after such information or investigation as it considers reliable and necessary in order to eliminate any reasonable doubt": Holland v Jones (1917) 23 CLR 149 at 153; [1917] HCA 26 recently discussed in Amante v R [2020] NSWCCA 34 at [66]. 3. That currently a very large proportion of marriages end in divorce, I am satisfied, is now so generally well known that ordinary people may reasonably be presumed to be aware of this, so that this does not require either evidence or further investigation. Further, in her report, Ms Sale discussed the possibility of Ms Sukwong taking up employment. 4. In the result, while I am satisfied that damages for future care must be awarded, I am not satisfied that they can be assessed to be $500,000. I have concluded that the damages awarded must be $390,000, having taken into account what has been paid for past care, the evidence of what commercial care now costs, Mr Burnett's ongoing care needs, which are likely to continue, as well as the other considerations earlier mentioned. Judgment for Mr Burnett 1. For these reasons, I am satisfied that there must be judgment for Mr Burnett against Manhattan. 2. Orders necessary to otherwise reflect my conclusions need to be formulated by the parties and some outstanding calculations undertaken. Costs 1. The usual order as to costs under the Uniform Civil Procedure Rules 2005 (NSW) is that costs as agreed or assessed follow the event. In this case, that would be an order in favour of Mr Burnett. 2. The parties should confer about the appropriate orders and in the event of any disagreement, I will hear them. Orders 1. For these reasons I order that: 1. For the reasons given, I now enter judgment for Mr Burnett against Manhattan Homes Pty Ltd. 2. The parties are directed to confer about the final calculations, the terms of the final orders including as to costs and to file proposed orders within 14 days. In the event of any remaining dispute, they should also approach within 14 days and file and serve an outline of submissions addressing that dispute. Amendments 15 December 2023 - On front page of in the Decision section, the following words have been deleted: "both" and "and The Griswold's Outdoor Xmas Pty Ltd". At paragraph 466 the following words have been deleted: "both" and "and Griswold's". At paragraph 470(1) the following words have been deleted: "both" and "and The Griswold's Outdoor Xmas Pty Ltd". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2023