New South Wales District Court CITATION: Steven Jelic v Edward Bader and Gerardina Bader [2010] NSWDC 329 JUDGMENT DATE: 2 July 2010 JURISDICTION: District Court of New South Wales JUDGMENT OF: Cogswell SC DCJ DECISION: Judgment for the plaintiff for $243,250. This has been reversed by the Court of Appeal see Bader v Jelic [2011] NSWCA 255 CATCHWORDS: CIVIL LAW - judgment - claim for damages - plaintiff installing Foxtel equipment in defendants' house at time of accident - plaintiff stumbles into plate glass window - claim that accident was result of defendants' negligence - both parties called opinion evidence involving inspection of site of accident - plaintiff suffers from major depressive disorder as result of accident - plaintiff developed alcohol problem following accident and pre-existing disposition towards gambling was exacerbated - unrelated assault resulting in worsening of plaintiff's psychological disorders and affected functioning - physical limitations as a result of injuries - loss of earning capacity - past out-of-pocket expenses - future out-of-pocket expenses - future wage loss - contibutory negligence LEGISLATION CITED: Civil Liability Act 2002 Homestyle Pty Limited v Perrozzi (2007) 33 WAR 209 CASES CITED: Mason v Demasi [2009] NSWCA 227 Nagle v Rottnest Island Authority (1993) 177 CLR 423 Steven Jelic PARTIES: Edward Bader Gerardina Bader FILE NUMBER(S): 2008/315357 COUNSEL: Mr AJ Lidden S.C. and Ms EEJ Welsh for the plaintiff Mr R Gambi for the defendants JUDGMENT 1. Steven Jelic was a telecommunications mechanic. He had his own contract business and one of his jobs was to remove outdated Foxtel equipment from houses and install new equipment. He was doing just this on 1 March 2005 at the home unit of Mr and Mrs Bader in Balmoral. He had been upstairs with Mr Bader to inspect the equipment and was going back outside to collect the new equipment when a very nasty accident happened. On his way out Mr Jelic fell into a large plate glass window downstairs. His forearms were badly cut and he had to be taken to hospital by ambulance. 2. Nearly three years later Mr Jelic sued Mr and Mrs Bader. He claimed that the accident was caused by the Baders' negligence. He claimed damages. 3. Whether the Baders were negligent and if so what Mr Jelic's damages should be is what this case is about. 4. Mr Jelic was represented by Mr AJ Lidden SC and Ms EEJ Welsh. Mr Lidden called Mr Jelic to give evidence and Mr Jelic's good friend Mr Bukbic. 5. Mr R Gambi represented the Baders. He called Mr Bader to give evidence. 6. Both parties tendered exhibits as well. 7. No one else was in the downstairs room when Mr Jelic had his accident so he is himself the only eyewitness. This is how he said that the accident happened. He was going downstairs and saw an opening which looked like a wide open door. He thought it was the entrance door. He started to walk towards the opening but when he got closer he realised it was not the entrance door but a fixed, full length glass panel. He attempted to turn left towards the real door but stumbled on the rug. He went forward and attempted to regain his balance, but he could not. His hands went instinctively forward. They connected with the glass panel which broke. Glass fell down on to his hands. After the accident he saw the rug wrinkled or bunched up. It was wrinkled in several directions. 8. A number of issues emerged in Mr Gambi's cross-examination of Mr Jelic. Had the rugs changed between the time of the accident and when Mr Jelic went back on an inspection with an expert? Were there curtains over the panels and the door? Was the door itself open or closed? Was there a bar on the left near the kitchen? Was the room well lit? Had he walked down the stairs with the set top unit in his hands? What had he told the ambulance and hospital staff and the expert witness? 9. Mr Jelic's statement of claim, in its amended form, claimed, as I have said, that the accident was the result of the Baders being negligent in a number of ways. The significant ways, he asserted in his amended statement of claim, were that the Baders allowed a trip hazard to remain on the downstairs floor and left on the floor a rug which was not fastened and was bunched up, which caused a trip hazard. He also said that the Baders had not warned him about the trip hazard on the floor and had failed to install toughened or laminated safety glass in the panel which he fell into. He also said that the Baders had failed to make the presence of the glass door obvious by drawing the curtains across it or lowering the blind on it, or otherwise. 10. In Mr Bader's evidence he acknowledged that there were rugs on the ceramic floor tiles in the room where the accident happened. The rugs had been brought from the old house when they moved into the unit in about 2000. He had arranged to put some adhesive material under the rugs because in the old house the rugs used to move on the surface which was carpeted. The adhesive material was still there at the time of the accident. Mr Bader said that he had lots of social visitors at the unit and there had never been an accident. He said the rugs have not been changed since the accident. 11. He said the front door was open and not closed and that Mr Jelic went down the stairs carrying the set top unit in front of him. There was plenty of light downstairs, but some glare in the courtyard. There were no curtains or blinds at the time of the accident. Blinds have now been up for about two years. The glass panel did not look like an open door because the door was different and obvious. 12. In cross-examination by Mr Lidden, Mr Bader was asked about the blinds being up for two years. He was shown a photograph of blinds being there in August 2005. That photograph eventually became exhibit T. Mr Bader acknowledged he might be fallible and said he had checked with his wife regarding the blinds and relied upon what she had told him. He had no real idea himself. He himself is usually out of the house five or six days a week for up to about ten hours a day. He is a senior and busy businessman. He had nothing to do with the cleaning of the unit - his wife or the cleaners did that - and he acknowledged that the cleaners would have to lift the rugs to clean underneath them. 13. The reason the adhesive material is underneath the rugs is to stop them moving on the tiled floor. He acknowledged that the adhesive material under the rugs were smaller than the rugs themselves so there was a gap of, he thought, about twelve inches at the edge which did not have adhesive material beneath it. He said the door was open, despite the risk of a burglar entering when they were both upstairs. 14. The cleaners were not called in the defendants' case. I infer that nothing that they could say would be of assistance to the defendants. Nor was Mrs Bader called, but I do not draw the same inference from that because the plaintiff agreed that it would not be suggested that any adverse inference should be drawn from her absence. 15. Both parties presented opinion evidence in their cases. The Baders arranged for an inspection of the site by a Dr Jacob. Dr Jacob is an engineer and a lecturer at the University of Sydney in glass technology. He provided his report to the Baders' solicitors. He had inspected the property on 9 September 2008, although his photographs are dated 11 September 2008. Photograph 1 shows a view of the glass panel through which there is a view on to the courtyard. Dr Jacob said that the "absence of furniture and carpet in front of the door, coupled with the presence of the carpet in front of the aluminium framed glass assembly, clearly prevents it from being mistaken as a doorway". I must put little weight on that observation made as it was some six months after the accident. Dr Jacob summarised his conclusions at the end of his report, pointing out that when the glass was installed, which was apparently when the building was constructed in 1968, the glass was suitable and there was no legislative requirement at the time to replace it, even though it was not safety glass. Nor has there been any legislative requirement to replace it since then, except in circumstances where it had been broken, as in this case. The requirements for glass was the main point of Dr Jacob's report. 16. Mr Neil Adams is an economist and safety management consultant. He provided a report to Mr Jelic's solicitors. He inspected the site on 24 November 2009. He provided an explanation, over pages four to five of his first report which became exhibit M, of how the accident might have happened. He goes into more detail than Mr Jelic did in evidence. Both he and Mr Jelic are consistent with each other in referring to a bunching or wrinkling in the rug. They also both say that Mr Jelic stumbled forwards. Mr Adams observed that there was apparently a gap of some .3 of a metre not covered by the non-slip material. That is consistent with Mr Bader's evidence. Mr Adams observed that the unprotected part "coincides precisely" with the location Mr Jelic believed "his initial pivoting movement occurred". Mr Adams made a measure of the coefficient of friction but this was based upon the assumption that the floor was wet and that assumption was not correct. 17. Mr Adams expressed the opinion that there were "two main features of the situation that in combination created a significant risk of just the type of trip and fall that he experienced". One was the presence next to the door of the full length clear glass panel that was not fitted with any safety visibility strips. The other was matting on the smooth floor tiles with inefficient anti-slip backing material. Mr Adams thought, from the point of view of perceptual ergonomics, that as the plaintiff walked towards the general area where he knew the entrance was the clear unmarked full length glass could very easily have been perceived as an unobstructed opening. Mr Adams observed that such openings have, for many years, been required to be marked. Mr Adams observed further that it is common knowledge and common experience that floors that are surfaced with smooth tiles can be slippery and the rugs on such surfaces can slip quite readily. In addition, bunching rugs can be trip hazards and clear glass panels can be mistaken for openings. I accept all of those observations. 18. Amongst the reasonable preventable measures the Baders could have taken, in Mr Adams's opinion, were removing the rugs from the pathway and effectively fixing them with anti-slip material. Safety markings could have been placed on the glass panel and blinds fixed. Safety glass could have been installed or a laminate applied to make the glass shatter resistant. Mr Bader might have warned Mr Jelic. Mr Adams observed that Dr Jacob omitted to consider the obvious possibility in his report that one of the things that the Baders could have done could have been to fix markings to the window to make it obvious. 19. Mr Adams, significantly, reached some conclusions about the foreseeability of the accident. He said at para 6.2 of his report that "there is a distinct probability that a person might mistake for an unobstructed opening a clear and unmarked panel of near full height that is fitted in a wall. There is also a distinct probability that a person might trip if they attempt to change direction sharply on a floor that has smooth tiles that are slippery when wet, or otherwise contaminated, and on which is positioned one or more rugs that are not backed, or not adequately backed, with suitable anti-slip material." That last conclusion must be qualified by the fact that there is no evidence in this case that the tiles were slippery when wet. Mr Adams went on to conclude that "there is a very significant likelihood that a person who trips in close proximity to a large panel of glass (or other solid material) might impact with that panel and might sustain injury as a result. That probability will be higher if the panel shatters under the impact and is not safety glass." He referred to publicly available information "about the high incidence of slips or trips and falls" causing injury in work employment and domestic circumstances. For reasons which he expressed, he reached the conclusion that: "it would have been foreseeable to the defendants that visitors to the premises might mistake the glass panel for an unobstructed opening, and that the rugs on the floor might bunch underfoot and thereby create tripping hazards." 20. It is significant that Mr Adams was not cross-examined. None of his opinions or conclusions has been directly challenged by any such cross-examination. 21. Dr Thomas Gibson is a mechanical engineer. He provided a report to the Baders' solicitors. He had inspected the unit on 11 February 2010. Dr Gibson observed at para 36 that the wall to the left of the base of the stairs, down which Mr Jelic had descended, is aligned with the edge of the fixed glass panel. 22. It should be observed here that there were three panels confronting Mr Jelic as he descended the stairs. The panel, so to speak, on the left was the door. The panel on the right was itself a sliding glass door. The panel in the middle, towards which he fell, was the fixed glass panel. 23. Returning to Dr Gibson, he said that pot plants on the other side of the courtyard "give an indication that it is not a doorway". I place little weight on that observation because it is not contemporaneous with the accident. However, there is some significance in my view in the wall to the left of the stairs being aligned with a fixed glass panel. A user of the stairs, such as Mr Jelic, is delivered towards the fixed glass panel rather than towards the door. 24. Dr Gibson undertook some experiments, which he referred to in para 39 of his report, by rotating his own foot on the rug. That experiment produced what he described as a "small" bunching of some twenty millimetres. Dr Gibson did also observe in his report at para 42 of his report that "glass in doors and windows is among the more common building features involved in accidents on domestic premises". 25. Dr Gibson went on to give some detailed consideration to what he calls the biomechanics of the attempted change and direction made by Mr Jelic. Dr Gibson thought that Mr Jelic's description was not consistent with those biomechanics, specifically the biomechanics of walking and turning. The fact of the matter, of course, is that Mr Jelic did not deliberately throw himself into the glass. Somehow, there was an accident. The accident, according to Mr Jelic, involved a stumble. The most likely source of the stumble, it seems to me, was what the plaintiff observed as wrinkling or bunching. That source is consistent with Dr Gibson's experiment of him rotating his foot, producing a bunching. I should conclude by reference to Dr Gibson's opinion that a simpler alternative explanation was that Mr Jelic "was distracted as he crossed the living space and simply walked directly into the centre of the fixed glass panel". 26. Mr Jelic's solicitors asked Neil Adams to respond to Dr Gibson's report. Mr Adams said that the turn which Dr Gibson based his biomechanical observations on was based upon a person making "a normal pedestrian turn", whereas Mr Jelic, as Mr Adams observed, was making an urgent turn. That was likely to induce a higher and more extensive bunching than that induced by Dr Gibson with his experiments. The report I am referring to became exhibit U and was dated 12 May 2010. In it Mr Adams went on to observe that in his earlier report he had pointed out that a height difference between two adjacent surfaces need only be six millimetres for a tripping incident to occur. He went on to say that "therefore the estimate of an overall height of twenty millimetres for the bunching of the rug induced by Dr Gibson indicates that the edge of the rug was raised sufficiently high to cause a real tripping hazard." 27. Mr Gambi, in his submissions on the question whether or not his clients were liable in negligence to Mr Jelic, put forward a number of arguments. One argument was that the accounts given by the Mr Jelic should not be relied upon because of what he told the ambulance officers who had attended the scene and the emergency care staff at the hospital. Mr Gambi pointed to information consistent with Mr Jelic's medical condition being oriented and neurologically intact at the time. Mr Gambi said there was no complaint about the carpet. 28. I place little reliance upon those inconsistencies, that is for a number of reasons. Despite the objective signs of his medical condition Mr Jelic was clearly a man who had just had a significant accident. His main focus was no doubt on his injuries rather than how they happened. I also reduce the significance of those accounts so far as Mr Jelic's reliability is concerned for the reasons pointed out by Basten JA in Mason v Demasi [2009] NSWCA 227 at [2]. 29. Mr Gambi also pointed to exhibit J which were notes taken in a conference between Mr Jelic and a barrister on 19 September 2005. Mr Gambi argued that there is no suggestion in those notes of a moving carpet. The notes record Mr Jelic as saying that he tripped on a wrinkled mat. That, in my opinion, is broadly consistent with what is asserted in paragraph 3 of the statement of claim where Mr Jelic said that he had "tripped on a rug". 30. Mr Gambi argued that the Baders had discharged their duty of care by applying anti-slip material under the rugs. There had been no previous incidents over the five years and over the five years that the Baders had lived there, despite regularly having guests, an ordinary householder would not reasonably do more than was done by the Baders in this case. I will return to that point shortly. 31. Mr Gambi pointed out that the state of the lighting downstairs was not pleaded in the statement of claim. There was no mention of the issue of lighting in Mr Adams' report. If lighting was important it would have been mentioned in that report and in the statement of claim and in particulars supplied and in the solicitor's notes. I agree with him, I do not regard the state of lighting as being a relevant factor in this case. Mr Gambi went on to argue that it was obvious from the photographs which were part of the experts' reports, that the panel was fixed glass and the door was on the left side whether it was opened or closed. No one else visiting the Baders' house had encountered a problem; that was because it was so obvious he has argued. What really happened is that the plaintiff was not paying attention to where he was going. 32. Mr Gambi went on to argue that the scenario of Mr Jelic walking, pivoting his foot causing the rug to bunch and then tripping was not reasonably foreseeable to an ordinary householder who had not experienced any previous incident. He went on to point out that it was therefore a remote or fanciful risk, not a foreseeable one. 33. He argued that in the event that I find for Mr Jelic I should also determine that he was contributorily negligent to the extent of twenty-five per cent. 34. I am satisfied on the balance of probabilities that Mr Jelic has proved that his accident was the result of the Baders' negligence. These are my reasons. It was in my opinion reasonably foreseeable that the large glass panel could be mistaken for a door. Mr Jelic was not a social visitor but a first time visitor who was engaged in his employment at a site which was completely unfamiliar. There were three panels. As I have said, one was the main door, one was the window in question and a third was a glass sliding door. The stairs delivered Mr Jelic into the downstairs room towards the direction of the middle of those three panels. 35. It was not a leisurely social visit that Mr Jelic was involved in. Social visitors might be more measured in their pace and might be engaged in admiring the home, the furniture and the courtyard. 36. The floor surface comprised ceramic tiles with rugs. Mr Bader regarded it as appropriate to place adhesive material underneath to prevent them moving. It had been there for many years. It did not cover the whole of the underneath surface of the rugs. 37. What was in my opinion reasonably foreseeable and far from fanciful was that a focused business visitor might mistake the middle panel for a door. Mr Jelic was not a social visitor but a man with a mission. He had a business task to perform. What was reasonably foreseeable was an accident of some sort arising from a combination of factors. One was an unstable floor surface caused by part of the mat not having adhesive material beneath it. That could produce a fall, an injury. The fall could occur near the glass panel and might pitch the person towards the panel. Even if there was no fall involved there was a risk that a non-social focused visitor might mistake the middle panel for a door. Such accidents are known to happen as evidenced by the markings seen on such doors, like the one which replaced the broken panel and which is now a requirement of law. 38. As Buss J, with whom Martin CJ and Roberts-Smith J agreed, said in the Western Australian Court of Appeal in Homestyle Pty Limited v Perrozzi (2007) 33 WAR 209 at [52]- "The assessment of what would have been reasonable and practicable for an occupier to do must be undertaken on the basis that the occupier had to take into account 'the possibility that one or more of the persons to whom the duty is owed might fail to take proper care for his or her own safety' ." His Honour was quoting from Nagle v Rottnest Island Authority (1993) 177 CLR 423 at 431. His Honour went on to observe in the following paragraph that people will ordinarily be expected to exercise sufficient care by looking where they are going and proceeding and avoiding obvious hazards. His Honour said that some allowance "must, of course, be made for inadvertence. Each case will turn on its own facts". 39. The duty of an occupier was described by Buss J at [34] as one which is owed "to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises." 40. In my opinion, for the reasons which I have given - which include my acceptance of Mr Neal's evidence which was not challenged - there was a reasonably foreseeable risk of some form of physical injury to a visitor such as Mr Jelic arising from the combination of factors to which I have referred. 41. The standard of care of course is, as Buss J described at [36], "what a reasonable person in the position of the occupier, would in the circumstances, do by way of a response to the foreseeable risk". To my mind, I am satisfied that in this case some of the measures which Mr Neal referred to such as warning Mr Jelic about the rugs downstairs and about the presence of the fixed plate glass window could have been taken by Mr Bader. More significantly though, the middle plate glass window could have been affixed by Mr Bader or by the Baders with some form of visual identification to distinguish it from a door. It was not, in my opinion, a remote or a fanciful risk and the Baders, although they had taken some steps towards securing the rugs, remained negligent in failing to take the steps which I have just described. Even if Mr Jelic was to some extent not paying attention, a matter to which I will return, the Baders still owed him a duty of care in the circumstances because of the nature of the reason that he was there that involved him being in business and being focused on his task. 42. I turn therefore to the question of damages and what damages are payable by the Baders to Mr Jelic as a result of breaching their duty of care to him. I need to refer to some of the evidence called on behalf of the plaintiff. Mr Jelic migrated to this country from Serbia in 2001. He was well qualified before coming here and had obtained skills and qualifications in telecommunications networks as well as in massage therapy. He had done a time in the Yugoslavian national army. He came to Australia as a skilled migrant. He had undertaken additional qualifications when he arrived through TAFE courses. 43. He started a small business called Telecomp Pty Limited which was incorporated in 2004. He was the only director and member of staff. He had a client, so to speak, in Foxtel which engaged his company to undertake the replacement of its components in people's homes. Telecomp had subcontracted with an organisation called Service Screen Communications which itself had contracts with Foxtel and Telstra. 44. The work he did before the accident was physical. It required him to use tools and to crawl under houses which he regarded as the hardest work. He had to use heavy tools with his hands. He had work from other sources as well. He had planned to develop his business with Foxtel, Telstra and Optus. He is a right-handed man and relies on his right hand in most jobs. Before the accident he was fairly stable emotionally and enjoyed his life. 45. When the accident happened he saw that there was a wide wound which had opened up on his right arm. It then started to bleed profusely. He was taken by ambulance to the Royal North Shore Hospital where he spent three days and had surgery. He had bandages and plaster on his arms and was off work for a period of time. He has been left with some scars which I have seen in a photograph. The appearance of the scars has improved a lot but he still feels very uncomfortable with them. The accident has had an impact on the function of his arms. He gets pain when he presses with his right arm. Pushing is a problem, particularly using a drill or a hammer or a large screwdriver. When he grips hard it can feel like lightening going through down to his index finger. His right arm has stabilised but he still has those sensations and limitations. His left arm is stiff and tight between the wrist and the arm, but the right is worse than the left. 46. He had some physiotherapy and went back to work towards the end of 2005. He got an opportunity through an employment agency. He found he could not do the work that he used to do because of the physical problems which I have described, using hammers and drills and crawling under houses. He could do some work as a technician testing electronics in new machines and black boxes for trains. It was not heavy work. It did not cause problems with his hands. 47. He went back to work about a year after the accident. He got some more work from SSC. He generally stayed in the telecommunications industry because it was more suited to his background and training. He found he could test equipment and install some equipment but once again, he could not crawl under houses or use hammers and could not use heavy screwdrivers. He could only use small pliers. He found he was having arguments with some customers and with Telstra. He could not explain it. He was getting upset. Beforehand he used to not have arguments. After the accident he felt his emotions were getting bad or worse. 48. He said he started to drink more and to gamble. He said that before the accident he drank socially but not to excess. He said before the accident he was strongly opposed to gambling but would occasionally go on the poker machines and spend twenty or thirty dollars. After the accident he became, he thought, addicted to gambling. The smaller amounts that he used to gamble became much larger. His parents sent him eight or ten thousand dollars to keep him going. He gambled it away. He got into trouble with drink driving and lost his licence for a while. He found himself getting drunk a lot and gambling a lot and thought that he was being discriminated against at work and, as I said, found himself having arguments. He got some more work from Australian Telecommunications Company from the middle of 2007 to about the middle of 2008 but he gambled away a lot of his income. He had been asked to leave licensed premises a number of times. 49. His friend, Mr Bukbic, recommended that he see a doctor. He agreed and he saw a psychiatrist in the middle of 2008. His psychological and emotional problems were getting worse. He saw Dr Kecmanovic because of his friend's recommendation and he realised something was wrong. He also had occasion to see a psychologist, Dr Jacmon, relating to some trouble he got into as a result of drinking. He is still seeing Dr Jacmon. He first saw Dr Jacmon in November 2008. His current GP is Dr Sahagian and he was also sent by his solicitors to a psychiatrist called Dr Bertucen. He is still on some medication for sleep and for depression. He has practically stopped drinking alcohol and practically stopped gambling now after he has been getting this psychiatric and psychological help. 50. He has not worked since his last contract ended in 2008 and has some Centrelink income. His mood at present often depends upon whether he is working or not. He still could not do, he thinks, the work of crawling under a house or using hammers or screwdrivers but he can do physically the work involving some electronic work, for example the work involving the black boxes. But he cannot sit in an office all the time; it affects him mentally. He finds his memory and concentration is worse than before and he is suffering from stress. 51. Mr Gambi cross-examined Mr Jelic about a number of items. One of the issues raised by Mr Gambi was whether Mr Jelic had an alcohol and gambling problem before this accident happened. Mr Gambi referred to a pattern of withdrawals of cash from ATMs at licensed premises before the accident happened. Mr Gambi also challenged Mr Jelic's working capacity, drawing attention to what he had told the barrister in September 2005 about his ability to work and to his tax returns for the years ended 30 June 2006 and 2007. He also drew attention to a communication which Mr Jelic had had with his workers' compensation insurer and the fact that he had very little treatment for his physical condition. 52. Mr Jelic acknowledged that he had been removed from licensed premises as early as 2001 but said that he was not familiar with arrangements in those premises in Australia because he had just arrived. When confronted with a series of cash withdrawals from the licensed premises, Mr Jelic repeatedly asserted that those withdrawals were related either to his need for income and rent but specifically for tools for his business. The amounts withdrawn were often up to $100 and more, sometimes $400 or even more. Often his withdrawals would reduce his account to a very low amount. Mr Jelic's assertion that a significant amount of the withdrawals was for purchase of tools was inconsistent with the relevant tax return at the time which indicated that there was a claim for only $125 in total for tools for that year. In addition, as Mr Gambi pointed out, many of the withdrawals coincided with another financial document which described the withdrawals as wages taken by Mr Jelic. 53. It is significant that Mr Gambi put to Mr Jelic that he had told the police, in 2001 when he reported an incident at a licensed premises, that he had been playing the pokies for a few hours but he did not, in my view, squarely admit that. He did not remember telling the police or giving the police that information in those terms. 54. Exhibit 5, which I referred to earlier, is a letter by Mr Jelic to his business's workers' compensation insurer dated 28 July 2005, that is only a few months after the accident. He estimated his wages to be $60,000 and indicated that he urgently needed a certificate, and I infer that was because he needed to get on with his work. He told the insurer that there were no employees or contractors working for his company and that he himself performs all work as a subcontractor. He said that he was about to get a new contract in the similar sorts of jobs he did before. That turned out to be the case and his earnings were very significant for the years ended 30 June 2006 and 2007. He said in cross-examination that although the work was similar, it was lighter. He said that had the accident not occurred, he would have been able to earn even more from his jobs than the significant amount which he earned in those two years. 55. He was cross-examined by Mr Gambi about the failure to give a history of gambling or alcohol problems before seeing the psychiatrists, nor did he tell one of the psychiatrists that he thought that the gambling and alcohol issues were related to this accident. He said he was willing to look for work but he was somewhat hampered by the fact that he had a criminal record as a result of some of the incidents which he got involved in. 56. I have reviewed medical evidence in this case. It is significant in a number of aspects. Dr Friend, a psychiatrist, provided a report dated 24 June 2009 which diagnosed a depressive disorder following the 2005 accident which this case is about. It became progressively worse, Dr Friend said, and was not recognised or treated until late 2008. As a result of that illness, Dr Friend said "Mr Jelic began to drink alcohol in excessive quantities and also began to gamble". She thought that he would require long term antidepressant treatment and ongoing psychiatric follow-up but she was optimistic about the future. She thought that the symptoms may persist until his circumstances improved. She thought his psychiatric condition was such that he would be able to work within the limitation of his physical disability. She repeated that she thought his prognosis was quite positive. 57. Dr Bertucen thought in his first report dated 7 July 2009 that Mr Jelic suffered a major depressive disorder but he said that it was in partial remission. He attributed the disorder to the accident. He did not feel that the psychological impairment should necessarily be regarded as permanent. He too thought the prognosis was optimistic. He thought he would be fit for some form of part time work two or three days a week. These problems were due to the accident. In a more recent report of 15 October 2010 he confirmed the diagnosis of a major depressive disorder but said that it was in partial remission. He said he had a secondary diagnosis of chronic alcohol dependence/abuse and pathological gambling. Both of those appeared to be in remission. He attributed these conditions to the accident in 2005. Abstinence from alcohol and gambling, in the doctor's opinion, have contributed significantly to the remission of his symptoms. The symptoms would improve if he could find suitable employment. 58. Dr Jacmon was the psychologist whom Mr Jelic saw. Dr Jacmon's reports are somewhat complicated by the fact that he also saw Mr Jelic for reasons unassociated with this accident, namely an incident which resulted in Mr Jelic being charged by police and an incident which resulted in Mr Jelic claiming victim's injury compensation. Nevertheless, when asked about the accident at the Baders' place, Dr Jacmon thought that Mr Jelic was suffering from depression and anxiety as well as post-traumatic stress disorder. The post-traumatic stress disorder he described is now largely resolved. One of the other experts, who is a psychiatrist, thought that there was no indication of post-traumatic stress disorder and I am inclined to agree. Dr Jacmon thought that a significant improvement in Mr Jelic's psychological disorders is largely dependent upon his capacity to return to full time work. He will need to be drawn and challenged in his work environment. Unless that happens, his anxiety and depression are unlikely to lift. 59. An event which occurred last year in February when Mr Jelic was assaulted - an unrelated event - had a marked effect on his functioning and resulted in a worsening of his psychological disorders. It, to some extent, reversed his progress. 60. An orthopaedic surgeon, Dr Peter Conrad, was qualified to give evidence and described Mr Jelic's principal injury as being to his right lower arm and wrist, an injury "dividing several tendons on the dorsum of the right wrist". He thought that he would have "difficulty in doing heavy repetitive work with heavy tools of trade, such as drills, hammers and screwdrivers". That report, however, is dated 13 December 2005. 61. The Baders' solicitors arranged to send Mr Jelic to some doctors who examined him on their behalf. One was a specialist hand surgeon and orthopaedic surgeon, Dr Faithfull. Dr Faithfull described a significant injury to the right wrist, with "partial division of the extensor pollicis brevis and extensor carpi radialis longus tendons and a complete division of the extensor carpi radialis brevis, and all the tendons of the extensor digitorum communis. There was a complete division of the cutaneous branch of the antebrachial nerve." Dr Faithfull was of the view that Mr Jelic would have difficulty using heavy tools and power tools. That opinion was expressed on 22 May 2008. 62. Dr Walker provided a report of 28 July 2008 and diagnosed a laceration of the right wrist with extensor tendon damage, which had been satisfactorily repaired. Dr Walker thought that Mr Jelic was fit to perform his pre-existing job "but chooses to do a lighter job because of some symptoms, so that the accident has really not affected his pre-existing capacity to work much at all." 63. Dr Mitchell, a rehabilitation specialist, said the main problem was weakness for the right hand gripping actions, which could result in fatigue, discomfort in repetitive tasks. He thought that he could manage to avoid much of this by ensuring appropriate hand tools were used. He thought that he was fit for his current pre-injury work "in the manner described above", which was the description of the limitations. He thought that he would be fit to "undertake normal hours of work that did not aggravate his right forearm and hand symptoms." 64. Dr Akerman was a psychiatrist who saw Mr Jelic on behalf of the Baders' solicitors and he diagnosed alcohol abuse unrelated to the fall. It was entirely attributable to constitutional reasons. 65. A consultant neuro-psychologist, Corrine Roberts, mainly concerned herself with whether Mr Jelic had brain injury, and that is not asserted in this case. 66. Significant in this case was the evidence of Mr Jelic's friend, Mr Bukbic. Mr Bukbic was not discredited or rendered unreliable by cross-examination. Mr Bukbic has known Mr Jelic for most of the time that Mr Jelic was in Australia. They are good friends. In fact, they are such good friends that Mr Bukbic drove Mr Jelic around for some three months, six hours a day, to various jobs when Mr Jelic lost his licence as a result of a drink-driving charge. 67. Significantly, Mr Bukbic noticed two changes in his friend. One concerned alcohol. It increased after the accident. Mr Bukbic said he started to see Mr Jelic pretty drunk, but that had not been the case beforehand. In fact, he added he hardly saw him when he was not drunk. 68. The second observation was that after the accident Mr Jelic had become a different person. He was not his original self. From a good personality, his mood changed. He was always complaining and talked about suicide. It was Mr Bukbic who was the friend who suggested he saw a doctor. Mr Bukbic himself said that he was so concerned that he told his friend he had to see a doctor. He was always turning up drunk and talking bullshit, Mr Bukbic said. Mr Bukbic cannot say anything about Mr Jelic's gambling habits because he, himself, does not go to clubs or hotels. 69. It seems to me that alcohol was related to some social problems before the accident. The incidents occurred in 2001 and 2003 at licensed premises. It seems that once he might have been asked to leave, and that may well have been because of an alcohol problem. In another incident he himself was assaulted. But the only information we have about the intake of alcohol on those occasions is from Mr Jelic himself. It is one thing to have a couple of incidents related to licensed premises. It is another thing to have the account of a close friend, Mr Bukbic regarding a significant change in Mr Jelic's drinking habits before and after the accident. True it is that there is no early pleading of alcohol-related problems, but that was probably because it was not realised until Mr Bukbic told him to see a doctor. 70. The gambling issue is a little more problematic in one sense. In another sense, like the alcohol, it is not problematic. The sense in which it is not problematic is that it seems that, to his credit, Mr Jelic is satisfactorily dealing with both significant issues. I say they are significant because of course they can cause huge damage in an individual's life. Either one of those addictions can cause such damage. Mr Jelic is dealing with both, and the doctors observe that he is dealing with them very well. 71. I strongly suspect he was gambling before the accident. I find the explanations for the ATM withdrawals from licensed premises to be frankly unbelievable. This is because of the patterns of withdrawals, the fact they were on licensed premises and his explanation regarding tools being inconsistent with a claim for $125 for tools for that year and with the claim for the withdrawals being all wages. However, I expect that his gambling habit was exacerbated especially since he developed the alcohol problem referred to by Mr Bukbic. 72. True it is that I have just found that Mr Jelic was probably not being truthful to Dr Friend and to me regarding his gambling habits. Hence, I am relying on Mr Bukbic significantly for the assertions about his alcohol problem and the change in his personality. I find that the accident did result in an alcohol problem which is now being satisfactorily dealt with. It also exacerbated a pre-existing disposition to unhealthy gambling. Once again, that is also satisfactorily resolving itself, I have found. It resulted in the depression and anxiety which the doctors have diagnosed, and the pain and suffering which accompanies those conditions. 73. I accept his account, confirmed by the doctors, about the physical limitations which he has. In particular, I rely upon Dr Faithfull and Dr Mitchell. I accept that he suffers some cosmetic deformity of his arms, and I accept that he suffered the injuries which he claims. 74. I turn now to his claim for a loss in earning capacity. He had some time off work and was limited clearly in his capacity to work. There has been, it seems to me, a physical and a psychiatric impact. The physical impact will remain for some time, if not indefinitely. However, the prognosis for the psychiatric impact is very favourable. Dr Jacmon was more guarded in his prognosis, but in that case the recovery was complicated by an unrelated incident. 75. Mr Jelic himself is a man who is resourceful and focussed. He is well-qualified. He has had a successful business. He has a very good work history. He had some significant personal problems with alcohol and gambling and he has managed to take significant steps towards resolving both those major issues. I am of the view that he will make a good effort in rehabilitating himself. 76. I turn now to the question of damages which should be awarded and I commence with general damages. Mr Lidden argues that I should allow a figure of 40 per cent because of the significance of the psychological and psychiatric injury but, as I said, I think his prognosis is good in that area. Mr Gambi thought that something in the area of 25 per cent or a little higher should be allowed. I think Mr Gambi is right. I think the more appropriate percentage is between 25 and 30 per cent. I would allow 28 per cent under s 16 of the Civil Liability Act 2002 which, on my calculations, is an amount of $66,290. 77. The past out-of-pocket expenses are referred to in MFI 7 as being an amount of $2,564. Mr Gambi's position was that the mathematics are correct but they should not be allowed in so far as they related to psychiatric or psychological injuries. I accept that the injuries were brought about by the accident and I will allow that amount of $2,564. 78. The claim for future out-of-pocket expenses is some $20,000. Mr Lidden acknowledged that there is no precise method of calculating them, but that his client would need to cover expenses for a psychologist and a psychiatrist, a GP and for drugs. It is at best, Mr Lidden frankly acknowledged, an educated guess. I think, given the resolving nature of his psychiatric and psychological problems, that $20,000 is too much. I, myself, would allow an amount of $10,000 for future out-of-pocket expenses, given the likely earlier resolution of those particular issues. 79. Mr Lidden has put forward a schedule which became MFI 8 for a past wage loss. It totals some just over $180,000 and the calculations are contained in MFI 8. Mr Lidden claims, on behalf of his client, various periods during which he has lost work, but, to my mind, Mr Jelic has a significant residual capacity and has had that capacity since undertaking very good employment for the years ended 2007 and 2008. The notes taken in conference with counsel in September 2008 are, I accept, consistent, as Mr Gambi argued, with Mr Jelic being ready to return to work, as well as Exhibit 5, which was the letter to the workers compensation insurer. 80. The psychological problems are continuing to some extent and, as the doctors say, there is a link between his employability and those psychological problems. I think he has lost some of his earning capacity in the past, but it is not susceptible to the precise calculation which Mr Lidden suggests. I would allow something just over a third of what is claimed, and I have in mind allowing a figure of $75,000 for wages lost to date. That broad estimate, because, to my mind as I said, Mr Jelic has retained a good deal of his earning capacity, but he has a significant injury which is unlikely to resolve. But he, on the other hand, has been resourceful in getting employment. 81. Turning to the future, the argument of Mr Lidden is that the future wage loss should be allowed at about $750 per week for twenty-five years. That, after appropriate discounts, would come to an amount of just over $480,000. Mr Lidden pointed out that the $750 per week represents about half of his client's current earning capacity. I find, however, that his psychological and psychiatric problems are likely to resolve sooner than later. He is very resourceful and is likely to find suitable sort of work. However, there will be a residual impact. He has had a very serious injury, and his physical limitations will mean that he has some restriction in the kind of work he can now do. He is also vulnerable psychologically and psychiatrically. This could lead to recurrences of his depression and other conditions. I do not think that the amount claimed of $480,000 is appropriate. I think it is too much. I have in mind that an amount of $150,000 as a cushion for the future is a more appropriate way of making an allowance for Mr Jelic's loss in future earning capacity. 82. So far as contributory negligence is concerned, Mr Gambi argued that I should allow discount damages by 25 per cent for contributory negligence and Mr Lidden argued that it should be between 10 and 15 per cent. I think Mr Gambi is closer to the mark, but I would not allow 25 per cent. Mr Jelic was aware that he was in unfamiliar surroundings. He may not have been looking where he was going. He should have been aware of the fact that there were rugs on tiles and that might cause a hazard. I would have in mind that an appropriate figure is 20 per cent for contributory negligence. HIS HONOUR: Gentlemen, what I am going to do now, because I have been talking for an hour and a half, is go and have a cup of tea; and I am going to come back in a quarter of an hour and you can tell me whether there are any legal errors, or whether I have overlooked anything and whether I have got the sums right. SHORT ADJOURNMENT HIS HONOUR: All right I have not done the sums, I have not added it all up and I have not calculated the contributory negligence but let us first see whether there is anything that I have overlooked. There might be one issue which I will raise in a minute, but first I might ask you gentlemen Mr Causer and Mr Hawkes. Mr Hawkes? HAWKES: Your Honour with the assessment for the non economic loss general damages, the figure it may have increased since your Honour has calculated it, it's now at 66,500 I think that's agreed between the both of us. HIS HONOUR: Yes look I. what did I say? HAWKES: Sixty, six two ninety your Honour. HIS HONOUR: I did that calculation, I wondered that Mr Hawkes because Mr Gambi also said 66,500 for twenty-eight percent, now help me here, I calculated it on a figure of $473,500 which was gazetted in September last year, is that your-- HAWKES: I think the problem might be your Honour, I think it rounds up, it's no longer calculated at, well it is calculated as twenty-eight percent of the gazetted figure but it's then rounded, the figure is always rounded up to the nearest five hundred and in the table-- HIS HONOUR: That's what, is that's what's done. HAWKES: --that are published it gets rounded, so yes your Honour, so I think that's where it becomes 66,500. HIS HONOUR: I either didn't realise or I was told and didn't register so instead of 66,290 it will be 66,500 yes. HAWKES: Do you want the calculations your Honour that we've agreed on in total. HIS HONOUR: In a moment yes, anything else, either mathematically or-- HAWKES: Not from the defence. CAUSER: We're agreed in regard to the addings up and the discounting your Honour. HIS HONOUR: For contributory neg. yes okay, there's one point that I realise I had in the back of my mind and I looked at it at morning tea, Mr Gambi made a, I'll just resume my reasons for judgment. 83. Mr Gambi made a submission in reply about the relevance of s.5D(3) of the Civil Liability Act 2002. He also referred to s.5E. I am not satisfied that there is any relevant statement of Mr Jelic's for the purposes of s.5D(3) and of course in determining these questions I have always regarded the plaintiff as having the onus of satisfying me on the balance of probabilities, and the findings which I have made in his favour are based upon those factors. HIS HONOUR: All right now let me get my, let me do it and then see if it agrees. I get a total of, a total before discount of $304,064, yes okay and then I take eighty percent of that and it comes to $243,251.20 does that sound right? CAUSER: Yes your Honour. HIS HONOUR: Which I'll round off to $243,250. All right. I find a verdict for the plaintiff in the sum of, gentlemen help me here I haven't done this process recently do I find a verdict for the full amount and then discount it and enter judgment for it after the discount or do I, or you're not sure? HAWKES: I thought it was for the full amount your Honour. HIS HONOUR: Yes and then I discount it. 84. I find a verdict for the plaintiff in the sum of $304,064, that is based upon general damages of $66,500 which I now find is the appropriate figure. In accordance with my finding of twenty percent contributory negligence I enter judgment for the plaintiff in the sum of $243,250. All right now costs, any issue about costs? CAUSER: No your Honour. HIS HONOUR: Mr Hawkes? HAWKES: Now with respect to your Honour's findings however your Honour there is a reserved costs order, it's arising from the adjournment on 26 November 2008. Justice Levy gave the parties leave to mention the matter again before your Honour, it would be the defendant's submission your Honour that-- HIS HONOUR: I'll just ask my associate for my note, the date was? HAWKES: It was 26 November 2008. HIS HONOUR: Just let me read the note, application for adjournment granted on ground of recent emergence of a psychiatric condition requiring investigation, costs reserved to be determined at the conclusion of the trial following outcome of the issue requiring investigation, direction the matter be placed in the Judicial Registrar's list. Okay so what do you say Mr Hawkes? HAWKES: Your Honour we say that the situation is that the plaintiff sought the adjournment at the last minute, 9.00am on the day of the hearing with no earlier notice to the defendant, we were present with counsel and with our witnesses ready to proceed on that date. We would submit that it's the usual procedure in the court that in such circumstances the party who seeks the late adjournment would pay the party prejudice's costs, thrown away by the adjournment, we'd note that there was a second subsequent adjournment where Judge Garling did in fact make an order on that basis that the defendant be given the costs thrown away by the second adjournment which was in October 2009. It would be the defendant's submission that the costs of the, thrown away by the adjournment on 26 November 2008 should be paid by the plaintiff. HIS HONOUR: Just let me look at those and then I'll hear from Mr Causer in a moment. Mr Hawkes I've got 8 October '09 vacated hearing date and the note here is 'reserve the question of costs until 22/10/09 but prima facie the plaintiff should pay the defendant's costs, stood over DH (whatever that means) 22/10/09 at 9.00am before me and then there's information about legal representatives and then 22/10/09 before Judge Garling on the basis the plaintiff instructed new solicitor, needs more time, reserve the question of costs for either Judicial Registrar, or the matter can be referred back to me." I'm not sure that you've got your order yet for costs thrown away on 8 October. HAWKES: That all occurred your Honour it then came before the Judicial Registrar that's the second occasion before Judge Garling, he referred the matter to the Judicial Registrar where it was a quasi show cause hearing for the plaintiff. The Judicial Registrar then gave an oral judgment wherein she awarded the costs, not only of the show cause hearing and the previous occasions before his Honour Judge Garling but also of the costs thrown away by the second adjournment, I appreciate this was all before my friend's instructing solicitors did come on the record there was a former solicitor at that time but we would submit that the general order would be that the plaintiff pay the defendant's costs thrown away by an adjournment, the plaintiff sought at late notice. HIS HONOUR: Mr Causer what do you say? CAUSER: In the circumstances I don't think I can say very much, I obviously not only don't have any personal knowledge or any instructive knowledge of that your Honour, I don't question at all what's being said by my friend, you have the court file there with the various notations, so I don't think that I -- HIS HONOUR: Why don't I do this, why don't I list it. What I have in mind is this, I will just tell you what I have in mind that I would indicate that I will make an order in chambers at some particular day next week, early next week to the effect of granting, sorry awarding costs thrown away in front of Judge Levy, but I'll give liberty to both parties to apply within a particular time and if I haven't heard from either party I will make the order in chambers. What do you both say to that, it gives Mr Causer an opportunity to get some instructions. CAUSER: Yes your Honour I think that's very reasonable. HIS HONOUR: I can see the force of Mr Hawkes' position okay all right. 85. First I should order the defendants to pay the plaintiff's costs of these proceedings, subject to this notation. After 4pm on Tuesday 6 July 2010 I will make an order that the plaintiff pay the defendant's costs thrown away as a result of the adjournment application granted by his Honour Judge Levy SC on 26 November 2008. However, I give liberty to both parties to apply to be heard in respect of that order, such liberty to be exercised by either telephone contact or email contact with my associate on or before 1pm on Tuesday 6 July 2010. That makes sense gentlemen? HAWKES: Yes your Honour. CAUSER: Yes. HIS HONOUR: My associate will give you her card with the information that you need. All right Mr Causer. CAUSER: Your Honour I thought I just might note for your own records that you referred a couple of times, I think Mr Neil, it's actually Neil Adams just in case that ever causes any confusion. HIS HONOUR: Thank you. CAUSER: The expert from the-- HIS HONOUR: Yes is it father and son, there are two Neil Adams. HAWKES: The older one has retired your Honour. HIS HONOUR: The elder is retired, yes I noticed there's two Neil Adams. CAUSER: I just thought something might come up and someone says 'who's Mr Neil?' HIS HONOUR: Yes Mr Causer you're right, I'll correct the transcript I expect. Thank you for your patience, I always warn people attending for judgment that they'll be here for most of the morning. But it means that you get the judgment sooner rather than later. ADJOURNED ********** 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.