New South Wales District Court CITATION: Husain Jammal v V & S Tadros [2010] NSWDC 190 02/03/2009 - 05/03/2009 HEARING DATE(S): 23/03/2009 10/08/2009 - 11/08/2009 11/11/2009 JUDGMENT DATE: 30 July 2010 JURISDICTION: Civil JUDGMENT OF: Nicholson SC DCJ 1.Verdict and judgment for the defendant. 2. Verdict and judgment for the cross-defendant. DECISION: 3. The plaintiff will pay the defendant's costs. 4. The cross-claimant will pay the cross-defendant's costs 5. Leave is given for the parties to apply to my Associate within 21 days for a hearing date to vary any cost order I have made. CATCHWORDS: Civil Law - Negligence -slip on wet step - Cross Claim against repairer - newly reparied steps and pathway - street to doctor's consulting rooms - exposed to weather - raining - 3 stairs to pathway -slip on middle step - state of repair and maintenance - causation - failure to establish mud on stair as cause - failure to establish defect of construction as cause - expert report - flaws in testing step surface - validity of expert opinion - query whether constructions pre-Building Code caught by Code - failure to establish alleged breaches caused slip -liability of P not established. LEGISLATION CITED: Evidence Act 1995 Civil Liability Act 2002 Husain Ali Jammal (Plaintiff) PARTIES: V & S Tadros pty Limited (Victor Tadros) (Defendant) V & S Tadros pty Limited (Victor Tadros) (Cross Claimant) Ali Jadid (Cross Defendant) FILE NUMBER(S): 2007/00294564 Plaintiff:R Hanrahan COUNSEL: Defendant/Cross Plaintiff: D. Cutler Cross Defendant:A Hourigan JUDGMENT The Plaintiff's Case 1. The Plaintiff, the eighth of 12 children, was born in The Lebanon in 1944. He is currently about 65 years old. Since the age of eight he has been singing and dancing. In more recent times he has added comedy to his routines. He married at the age of 22. With his wife Sarah, at the age of 43 he migrated to Australia in November 1987. Since their arrival in Australia, their lives have been plagued with misfortune after misfortune as they experience the negligence of others. 2. In June 1989 his wife fell down stairs at a railway station. Subsequently his wife was involved in a motor vehicle accident. Since 1989, as a consequence of these events, he has provided help for her. Even so he was able to continue earning money at night dancing, singing and entertaining as a comedian. In 1999 he was granted a carer's benefit by the Department of Social Security for a period. 3. In 1993, after eating two bowls of Cornflakes to assist him in dieting, he suffered an episode. The consequence was he was unable to walk, vomited, experienced diarrhoea, dizziness, his face changed colour. On returning from the local shops after eating the cornflakes he fell down and had to be taken by ambulance to Prince Alfred Hospital. He was off work for two or three weeks. It would appear the episode was the focus of litigation that resulted in his being paid a small sum of money because he had lost two or three weeks work. 4. On 2nd January 2000 he slipped on a loose piece of concrete and fell while lifting a table at home. He hurt his right shoulder, neck, back and hand. He had an x-ray taken of his little finger. He is still experiencing pain from his back, shoulder and hand. His neck movement is restricted so that he must turn his body when speaking to those within his peripheral vision. This incident was also the subject of litigation, resulting in a sum of money being paid because he stopped working for a month or so. 5. Nonetheless during the tax year 2002-2003 the Plaintiff was able to earn $49,000 as a musician. 6. On Oct 16th 2004, the Plaintiff was offered employment at the Serenade Restaurant & Café, Parramatta as a MC Singer entertainer and a Dancer Comedian for a period of 1 year, commencing on 22nd October 2004. The terms of the contract specified payment of $950 per week gross. Attendance was required on Friday, Saturday and Sunday nights from 10pm to 1am as agreed. 7. Two days after signing the Serenade Restaurant contract he attended Dr Tadros's (the defendant's) surgery for purposes of asking about a certificate relating to his job (T. 02/03/09 p. 18/7) or his wife's back problem (history given to Dr Harvey Sutton) or for the purpose of consulting the defendant (Statement of Claim). He was told to return in half an hour. He left the surgery onto a veranda. From the veranda there were three steps leading to a pathway, which in turn led through a suburban front yard to a small wrought iron gate giving access to the footpath outside. There was a last step down to the final metre and a half leading to the front fence. 8. It was raining. He looked at the steps leading from the veranda; saw nothing dangerous. He was walking normally, and taking care. As he placed his foot on the second step he skidded and fell causing injury. He lost consciousness, the defendant left his surgery and attended upon him in situ. That was the last time Dr Tadros treated the plaintiff. Thereafter he engaged the services of Dr Sarkis Douaihy who attended his home on 26th October 2004. 9. It is useful to have regard to how the evidence came out in the hearing; I reproduce the relevant portions of transcript (T 02/03/09 pp 17/21- 18/22). Q. Can you say in your own words what happened as you were leaving the surgery. A. WITNESS: Yes. When I go outside from the doctor's room, I go outside. I'm walking normal, nothing else than normal. Q. What sort of shoes were you wearing? A. INTERPRETER: Normal shoes. A. WITNESS: Yeah, normal shoes. Q. What happened? A. WITNESS: I slip. A. INTERPRETER: It was slippery. A. WITNESS: My legs coming behind my back. Two broke - two broke in my legs. Q. Can you remember what you noticed just before you slipped? A. WITNESS: No. I don't remember. Q. Do you remember how you came to slip? A. INTERPRETER: I can't remember. I went unconscious at that moment, and after, when the doctor came out to see me. It was raining over me. ….. HANRAHAN Q. Can you say how it was that you came to slip? A. INTERPRETER: Walking normal. A. WITNESS: And after, I slip. Q. Did you look at the steps that you were walking down? A. WITNESS: For sure I look at the step. Q. Were you careful before walking? A. WITNESS: For sure I'm careful. Q. Well, why did you slip? A. WITNESS: I don't know, because water and-- A. INTERPRETER: Mud and water. The tile was too-- A. WITNESS: Slippy, very soft. A. INTERPRETER: --too fine and soft, and the mud. 10. Counsel revisited this topic, he asked: Do you want to say anything to the court… about how you came to fall? The Plaintiff answered: How I fell? I fell normal; how people just fall; I fell. I put my legs (sic) out; fall down…." (T. 02/03/09 p.21/27). Counsel persisted: Q: "Why is it that you say that you fell on those particular steps? A. (Through interpreter) When I was going down the second stair, I put my leg and I slipped." When giving that answer he demonstrated with his hands a kind of skidding motion. (T. pp 21/50 – 22/1-4) 11. Defence counsel, in his submissions has listed other accounts of the fall given by the plaintiff to others, primarily as part of the history taken by those others: Statement of Claim says …"slipped on the tiles laid at the entrance way to the premises…' -expert Mr Grieve 1/2/08 (Exh The Plaintiff's exhibits are identified by a single letter of the alphabet sometimes followed by a number (e.g. A, B, C, D – 1) etc). The Defendant's exhibits are identified by a numeral sometimes followed by a letter of the alphabet (e.g. 1, 2, 3, 4 – A, etc). The Cross Defendant's exhibits are identified by the letters CD followed by a number (e.g. CD 1; CD 2, CD 3 etc). D-25) "As he descended the stairs he slipped on the middle step…" particulars 16/1/08 (Exh 9 ) "..slipped on the steps at the entrance to the premises." Dr Tadros notes 18/10/04 (Exh D-1) "slipped on the surgery steps (rain wet steps)" Dr Douaihy notes 26/10/04 (Exh D-15) "…slipped on some mud and wet surface of the steps." Dr Mahony 11/2/05 (Exh D- 16) "He slipped on some mud at the front door" 12. As a consequence of the fall, the Plaintiff sustained a comminuted fracture through the distal tibial shaft. Simultaneously an oblique fracture through the distal fibular shaft also occurred. He says that as a result of the fall he hurt his legs, back, shoulder and neck. Subsequent to the initial injury to the left leg, he began to feel more pain in his other leg. There was mental sequale, which he described as "pain … in my mind; feeling bad emotionally, and feeling nervous (query "anxious") (T. 2/03/09 p. 24). He elaborated on this aspect: "…when I wake, I wake up I be nerve (sic) – I want to fight, I want to broke (sic) I want to do something bad". (T. 02/03/09 p. 25/21-22). When asked to narrow to the most important parts he selected injury to his left legs (sic), back and right shoulder down to the wrist. (T. 02/03/09 p. 24/1 – 20). 13. The Plaintiff's evidence was there was no handrail near the steps, no sign, no fence (sic) or something, (T. 02/03/09 p. 22/9-11) Ms Badran's (the plaintiff's wife's) Evidence 14. The Plaintiff called his wife, Sarah Badran in his case. She is also known as Sonya. She married the Plaintiff in 1966. In her capacity as his wife she has observed him since the fall at the Defendant's premises, which she says changed him a lot. Previously he was working as a singer, dancer. She worked with him in dancing. Since the fall she has not worked with him. He now sits in front of the TV. When he sees someone singing or performing on TV he starts to cry. 15. Since the fall he is a different person. Before the accident she could speak with him without problem. After the fall he became nervous (meaning irritable or short tempered). He has put on weight. She has been assisting him with personal care, by helping him clothe himself, give him medications. She regards herself as his servant, and is next to him all the time. She bathes and shaves him. She brings him into the shower, puts him on a chair then sponges him with soap – then washes this by pouring water from a container off by hand. She does not have a hand held shower nozzle, and it would make a helpful difference if she had one. There are no handrails, if there were, it would assist. 16. She helps him get out of bed. First she helps get his head up. Then she turns to his legs to dangle from the bed. Then she stands in front of and helps him stand a little bit at a time by lifting him. She said she would be assisted if the Plaintiff had a bed with a remote control which lifted him into a seating position. She also said he would be assisted if he had a recliner chair. 17. She takes him to the toilet, then leaves him. She stays outside the door, which is left open. When he finishes she comes back to help him clean up and put his clothes on. Her evidence was she spends two hours daily helping him and then he sits on a chair. 18. Australia had taught the Plaintiff to help with housework, which he did prior to October 2004, because in their culture men don't. Before the accident he cooked, did the washing, vacuumed the carpet. The two worked together as one. In March 2008 a young man, Mustapha, assisted with the plaintiff's personal care and continued to come for three months. Since the fall he has not assisted with the cooking. 19. In Cross-examination to Mr Cutler, she agreed she had recovered very well from the injury of 1989 when she fell down stairs. There is now nothing troubling her. This recovery had been completed before October 2004; she thought about three years before but added, "Long before, but I can't remember how long. My husband knows all this." She denied telling Dr Sekel on 21 February 2008, "I am disabled because of injuries of my back, legs and most other areas of my body." The effect of her evidence was Dr Sekel did not ask her any questions, but directed himself exclusively to the husband. 20. She did not know whether her husband was receiving a carer's payment. They signed papers and went to the post office to get the money. Her evidence was they didn't apply, she cannot read or write, or do these things. She thought it may have been Dr Tadros who applied for it. She didn't know why and they didn't ask. She went to the post office to collect the carers allowance and other payments made by the government because she had to pay rent, electricity, telephone bills, buy food, and borrow money from friends. She continued to collect money sent by the government for her husband after his injury in October 2004. They had not received letters from the government asking whether her husband was still her carer and whether she was still disabled. 21. Prior to October 2004 the plaintiff did everything for her, vacuuming, her face (make-up), trimmed her nails, combed and styled her hair, everything at the house because she was incapable of doing these things as a result of injuries arising from a motor vehicle accident. 22. He did these things before he fell down. But before he fell down she had become well, the pain had gone, she had taken tablets for it and the pain had gone. Before the fall they were both doing things about the house together. After the fall it was her duty to look after him, as he had done his duties towards her. 23. Her reason for ceasing dancing was not injury related. She wanted to stay home and help her husband with everything. Pleadings 24. Exh F seems to establish that within 3 weeks of the slip, the plaintiff contacted J.M.Thompson, solicitor, about a personal injury claim arising from his fall. It does not appear that solicitor filed any documents. 25. On 17 October 2007 the plaintiff filed proceedings against the defendant alleging negligence. It is his claim that as he was leaving the defendant's premises on 18 October 2004 he slipped on the tiles laid at the entrance way to the premises which were wet and slippery from the rain, whereupon he slipped and fell, thereby sustaining injury, loss and damage. His claim for injury, loss and damage was expressed as both a past and continuing. 26. The particulars of negligence that have been pressed in the hearing appear to be, failure to maintain the premises in a safe condition, failure to warn of the slippery floor surface in event of rain; failure to provide a safe means of access and egress from the premises; failure to alleviate a slipping hazard; failure to guard against a high gloss tiles becoming wet and slippery in rain; failure to maintain non-slip surfaces on the steps, failure to provide sufficient or additional non-slip surfaces upon the tiles, and failure to provide handrails 27. A defence was filed on 31 January 2008. The defendant put in issue that it was the occupier and had care control and management of the relevant premises; that the plaintiff slipped on wet, slippery tiles laid at the entrance way to the premises and thereby sustained loss and damage. He denied any negligence asserted, and notably those asserted in the pleading. The defendant denied past or continuing injury, loss or damage. The Defendant averred that if injury, loss or damage was suffered, it was caused or contributed by the plaintiff's own negligence. He particularised contributory negligence as failing to take any, or any proper care for his safety, and failing to watch where he was walking. 28. I deal with the Cross-Pleadings later. Plaintiff's medical evidence of pre-existing injury Application for Disability Support – Dr Tadros's Report 29. On 12th February 2002, the Defendant, then the Plaintiff's treating doctor completed a Treating Doctor's Report for Centrelink, Exh G. That report appears to have been sighted and returned by CentreLink Marrickville on 2nd April 2002. On that occasion his diagnosis was "muscular ligamentous spraining of the lumbosacral spine with L3/4 and L4/5 disc injuries". Under the heading clinical features he wrote: "accident on 2/1/2000. On-going back pain since then. Date of onset 2/1/2000." Treatment was listed as "physiotherapy, analgesics, local creams." Doctor's prognosis was the condition was Long Term. Likely to persist for at least 2 years. He described the condition as deteriorating and constant. On this earlier occasion there was also a diagnosis of a second condition as "Muscular ligamentous spraining of the cervical spine with evidence of nerve root irritation." The clinical features were written: "again as a result of the accident of 2/1/2000 ongoing (indecipherable) pain and stiffening with radiation to the right upper limb. Date of onset 2/1/2000." The doctor assessed the condition as long term; likely to persist for at least 2 years. The condition was assessed as deteriorating and constant. 30. A third condition relating to a contusion of the right little finger was diagnosed. It was said to be long term, likely to persist for at least two years. 31. A fourth condition was diagnosed, namely post traumatic stress disorder. Its clinical features were set out "As a result of pain and loss of capacity to work, Mr Jammal has been getting progressively more anxious and depressed. Treatment, past, present, and planned was described as Antidepressants, counselling." The condition was described as being long term – likely to persist for at least two years. It was said to be stable and constant. The defendant assessed the plaintiff as being unable to return to work more than 20 hours per week, or indeed any work at all, for a period greater than two years. Likewise he would be unable to engaged in face-to-face study for a period greater than 2 years. 32. When assessing the plaintiff's work ability at this time under headings set out below, the defendant ticked the following boxes: Likely to be absent or several hours late as a result of impairment: four or more days per month (the maximum option available). Persistence at work tasks without unscheduled breaks: unable to work full days because of endurance problems (the maximum option available). Capacity of person to understand and follow work instructions – intellectual functioning only: impairment rarely affects their understanding (second option of disability available). Communication capacity in the workplace: Can communicate, but with diminished speed (the second option of disability available). Capacity to travel to, from and move about the workplace: Mobility would be constrained in some situations (Third option of disability available). Capacity to manipulate objects for work: Substantially diminished dexterity (the maximum option of disability available). Impact of disability on ability to interact with others and behave appropriately at work: inappropriate behaviour would disrupt work for at least 15 minutes per day (second option of disability available). Capacity to undertake a variety of tasks: May be distressed or have difficulty alternating between tasks (third option of disability available). Capacity to lift, carry and move objects: Unable to lift, carry and move objects (the maximum option of disability available). 33. The defendant indicated the plaintiff had been his patient and attending his practice since 22nd September 1988. Other pre- 2004 Reports 34. In support of the application other medical reports accompanied the application. One was from Dr Damien Ryan of the Sydney Hand Surgery Associates. The plaintiff was referred to doctor in November 2000. Dr Ryan diagnosed "fairly significant hypersensitivity of the right hand with numbness affecting all his fingers; some particular stiffness of his little finger; pain more diffuse than only in the little finger. Dr Ryan's opinion was that the pain appears to relate to cervical radiculopathy rather than any local problem around the hand. Nerve conduction studies did not reveal any abnormality of the nerves around wrist and forearm. His neck is certainly very stiff and attempts to move the neck are quite painful. 35. Contained in Exh G is a report dated 24 May 2001 of Dr Medhat Guirgis, a consultant orthopaedic surgeon. The Plaintiff had been referred to him by the defendant. Dr Guirgis first saw him on 9th February 2000. Dr Guirgis took a history that included an account of the plaintiff being taken after falling backwards at the entrance of the veranda to Royal Prince Alfred Hospital, where he remained as an in-patient for 36 hours. He claimed instantaneous extensive swelling to the right lower limb, which was extensively swollen. His trousers had to be cut by ambulance officers to relieve the pressure on the leg because he could not move his toes. His right arm was bruised, his neck, right shoulder, right little finger and lower back were also injured. Dr Guirgis was told the plaintiff continued to complain of persistent pain and stiffness in the neck – a pain which shot to and involved both shoulder blades. There was painful stiffness and heaviness in the right shoulder. There were attacks of radiation down the right arm to the hand. There was painful stiffness in the lower back and attack of radiation of the pain from that site down the right leg to the foot. Similar radiation was present on the left side but to a lesser extent. There was an initial persistence of pain in the right thigh which was swollen and bruised for a few weeks after the accident. During that period he was unable to walk without the aid of a walking stick. The right little finger was injured at the proximal interphalangeal joint which became painful. There was tingling, pins and needles and a numb feeling affecting the right hand and fingers with weakness of gripping power of the hand. He was diagnosed with right carpal tunnel syndrome. 36. Dr Guirgis conducted a clinical examination. He recorded his findings: Cervical Spine: Spasm of the para-spinal collar muscles demonstrated on movements of the cervical spine beyond the half way range in all directions. Movement of cervical spine restricted 35% of the range. Tenderness elicited over mid-cervical spine and relevant spaces. Tenderness also over supraspinous fossae. No motor or reflex neurological deficits. 37. Lumbar Spine: Normal lumbar lordosis was lost. No sciatic listing. Spasm of the para-spinal muscles on stance. Movements of the lumber spine restricted 50%. Straight leg raising positive on right side at 50 and on left at 65. Tenderness elicited over right sacroiliac joint and lower 3 lumbar spines and relevant spaces. No motor or reflex neurological deficits. 38. Right Shoulder: Movement of gleno-humeral component of the shoulder join were lacking their last 10 degrees of abduction and external rotation. Evidence of altered rhythm between gleno-humeral and scapula-thoracic movements. Evidence or reduced abduction power against resistance. Tenderness over supraspinatus insertion in the top of the greater tuberosity of the humerus. Tenderness extended to involve the anterior half of the rotator cuff of the shoulder. 39. PIPJ Right Little Finger: Pain, tenderness and soft tissue swelling demonstrated over the dorsal capsular ligament. 40. Dr Guirgis's opinion was that the 2000 fall at home resulted in the following injuries: Post-traumatic mechanical derangement of the cervical area of the spine; caused by chronic musculo-ligamentous sprain/strain with intervertebral disc involvement. It triggered and aggravated the effects of pre-existing osteospondylosis. Post-traumatic symptoms in the right shoulder joint caused by contusion of the articular surfaces and spraining of the supporting capsular and ligamentous structures. It also triggered the symptoms of &/or aggravated the effects of underlying degenerative changes. MRI evidence of a partial tear of the supraspinatus tendon was noted. That tear was said to have triggered the onset of post-traumatic tendonitis/subacromial bursitis in the right shoulder. Post-traumatic mechanical derangement of the lumber area of the spine, caused by musculo-ligamentous sprain/strain with intervertebral disc involvement. This triggered & aggravated the effects of pre-existing osteospondylosis. Post-traumatic symptoms and signs of irritability of the median nerve in the carpal tunnel. 41. Doctor Guirgis listed areas of permanent impairment experienced by the plaintiff as against a most extreme case of the relevant injury. The figures the doctor came up with were: 25% permanent impairment of the neck. (Add 5% on account of underlying asymptomatic biological changes for age). 25% permanent impairment of the back. (Add 5% on account of the underlying asymptomatic biological changes of age). 20% permanent loss of efficient use of right arm at or above elbow level. (Add 5% on account of underlying asymptomatic biological changes of age). 10% permanent loss of efficient use of right leg at or above the knee level. 10% permanent loss of efficient use of left leg at or above the knee level. 42. Dr Monir B Younan, Consultant Psychiatrist, was the last of the specialists whose report supported the plaintiff's application for Disability Support from CentreLink. His diagnosis was formulated against a history of falling about three months ago while dragging a table from the balcony into a room. Dr Younan noted at interview the plaintiff occasionally appeared detached, but mostly depressed, and at a time he cried. Doctor was told plaintiff frequently cried, mostly felt depressed, he complained of poor concentration, diminished physical energy, outbursts of anger, pervasive feeling of fear and occasion of attacks of anxiety during which he worries about his heart. There was trouble falling and staying asleep. There is bed wetting and lost of interest in sex and a totally loss of erection capacity. 43. Dr Younan's diagnosis was moderate to severe depressive anxiety state with possible dissociative overlay. Doctor was uncertain as to whether the plaintiff's incontinence was organically caused. Treatment of the 2004 Injury occasioned at the Defendant's Premises 44. The Plaintiff had been taken by ambulance from the injury site to Prince Alfred Hospital, where he was operated upon the following day. The discharge letter notes under the heading Operations/Procedures/Hospital Treatment on "19/10/04 – open reduction/internal fixation [left] ankle; insertion of 2 plates & screw." 45. The Plaintiff left hospital within three days because, he was alone, his wife was alone and the hospital would not let her stay with him throughout the night. The Prince Alfred Hospital discharge letter (Exh D 1) confirms "Patient discharged himself today against medical advice." Arrangements were made for him to attend the Outpatients' Clinic a week after discharge. He was advised to take Panadeine and supplied with sufficient for 5 days. (Exh D p.1) 46. The Plaintiff did not attend follow-up at the Outpatients' Clinic. Rather he had Dr Sarkis Douaihy attend upon his home (T. 02/03/05 p. 22/47). Doctor's first visit appears to have been made on 26th October 2004. In this initial visit the Plaintiff complained of immediate pain in lower left leg with a cracking noise, back and right shoulder pain. 47. On the 28th October, Dr Douaihy notes complaints of dizzy spells, on-going headaches, a blood pressure reading of 150/100. There was ongoing pain in the left ankle and the plaster was causing discomfort. Doctor diagnoses a likely viral illness and gives advice regarding blood-pressure management. 48. [Comment: The original evidence of Dr Douaihy is to be found in Exh D 15. As it appears in the exhibit it has been collated without regard to dates. A copy of Exh D 15 was compiled during the hearing. While not strictly in date order it is arranged in an improved chronological order and has been made available to me. The entries that appear in Exh D 15 have been supplemented by entries from the Doctor for 2006-2008. They have been added to Exh D 15 by consent. I have relied upon this document for details of treatment meted out or oversighted by Dr Douaihy. I have not been supplied with any glossary of terms or abbreviations used by this doctor in his notes. Nor has any typewritten version of them been provided. – I have been left to my own devices in interpreting the handwriting and the notes. While I accept it is my task to make what I can of the evidence and to determine the facts upon the evidence as I find it to be – the risk that what I make of it may not be what the doctor intended is one borne by the party tendering the documents. Finally, I should note that some of the papers in the copy version have been highlighted at various points. I have disregarded the highlights in coming to my findings, and the weight I give to those findings. The above comments apply with equal force to the defence Exh 1 – Dr Tadros's clinical notes. 49. There is a second comment that I wish to make applying to both Plaintiff in respect of Exh D 15, and the Defence in respect of The Defence Tender Bundle, which includes Dr Tadros's clinical notes, and the Court file in previous proceedings. In neither party's case has the Court been pointed to any particular passages. These are vast fields of evidence I am required to tramp through to make what I can of the evidential plant-life I find. To some extent I have had regard to the final submissions in determining what the parties regard as important. A good example of the problem raised is to be found in the Plaintiff's evidence in earlier proceedings against a different defendant for a different injury. On my reading of his evidence there were occasions where he was extravagant, and unreliable. Yet no tendency or co-incidence notice pursuant to the Evidence Act 1995 was served. So, I have put any finding I may have made to one side in accordance with the provisions of s97 and s98 Evidence Act 1995 and based my determination of the plaintiff's reliability solely on his sworn evidence before me, and contents of reports made preparatory for these proceedings.] 50. The next recorded visit of Dr Douaihy appears to be the 8th November 2004. There was still on-going pain in the left ankle area, the plaster cast had to be changed for a fibreglass one due to on-going pain and discomfort. Doctor records the Plaintiff as being unable to weight bear. There was tenderness over the lower back; right shoulder movements were painful; there were now complaints of pain in his right lower limb. The Doctor had described him as a well-built anxious looking man. He was prescribed analgesia and anti-inflammatory medication. 51. In what would appear in one of these early visits Doctor records the Plaintiff as describing an "exacerbation of his lower back pain causing him stiffness and limitations of movement as well as his right shoulder pain. The Plaintiff complained to the doctor that his pains and symptoms have been interfering with his sleep, daily living activities, his ability to go to work, that he was anxious about his condition and is virtually house bound; he can't socialise or get out. The doctor's diagnosis is: anxious looking, frustrated, painful right shoulder, lower back; left knee, left ankle and right lower limb. He prescribed a continuation of the medication and rest. 52. On 6th December Dr Douaihy visited the patient who was complaining of nausea, vomiting, diarrhoea, and blood pressure 146/90. Those symptoms may well have been viral. He also noted ongoing symptoms of pain and discomfort and that the Plaintiff was feeling depressed. 53. Dr Douaihy referred the Plaintiff to Dr Graham Mahony at Bankstown. On 15 December Comprehensive Medical Imaging did a Lumbar Spinal x-ray. Dr Kaushik, who interpreted the x-ray concluded: "Extensive facet arthritic change and generalised disc bulging at the L3-4 level has caused spinal canal narrowing." He also noted "small focal central disc protrusions at the L4-5 and L5-S1 levels which abut the thecal sac anteriorly and compress the bilateral proximal L5 and proximal right S1 nerve roots." (Exh D 3). 54. Dr Douaihy saw the Plaintiff on 23rd December. The Plaintiff was complaining of an exacerbation of his symptoms after an attempt to walk around the house. The Plaintiff said he was in pain and feeling stiffness affecting his back and both lower limbs. Blood pressure 140/80. Treatment Continues 2005 55. On 13th January 2005, the Plaintiff told the doctor there was ongoing pain and discomfort in the left knee, left ankle, lower back and right shoulder as well as pain in the right lower limb. Doctor also noted coughing, providing sputum associated with dizziness and tiredness. There was also epigastric pain with acid reflux. The Plaintiff was advised by Dr Douaihy to stop smoking. His blood pressure was 140/70. 56. On 28th January 2005 Dr Douaihy's notes record the plaintiff complaining of ongoing symptoms and limitations causing frustration and depression; still interfering with sleep and daily living. Walking with a frame. Blood pressure 130//70. 57. There appear to have been visits by Dr Douaihy on 1st, 15th and 21st February 2005 where the patient was complaining of on-going symptoms, continued abdominal pain with reflux and high blood pressure. On the 8th March the Plaintiff complained of an escalation of his symptoms and limitations. He complained of depression. Doctor counselled him at length and advised him to start on Avanza and continue with his other medications. The Doctor diagnosed headaches, tiredness, cough and epigastric pain. The blood pressure was 160/90. The doctor noted the Plaintiff would need to start medicating if non-pharmacological means were not working. 58. On 17th February, Dr Grahame Mahony, who had examined the Plaintiff on 11th February, wrote to the treating doctor, opining that the Plaintiff "has developed symptoms referable to a lower lumbar back strain and appears to have sustained fractures involving the left low tibia and fibula. It is consistent that the fall he described has produced such lesions (sic)." Dr Mahony also reported that he had been advised that an ultrasound investigation of the Plaintiff's left calf taken at his (Dr Mahony's) request was normal. 59. On 30th March the Plaintiff was complaining of on-going pain in left knee, left ankle, lower back, right thigh, right shoulder, ongoing depression, frustration and lack of self confidence. He was scheduled to have MRI of upper and lower back and upper limbs. 60. The Plaintiff's evidence is that after the initial hospital treatment he continued to feel "very, very, very bad pain and very bad life" (T. 02/03/09 p. 23/43). The Plaintiff was readmitted to Prince Alfred for further surgery, which occurred on 7th April 2005. The Left Tibial plate and screws were removed and in lieu an IM T2 tibial nail insertion was performed. The Discharge Referral noted under the heading: Major Interventions – Results: "malunion/non-union Left tibial fracture. Rupture of quadriceps tendon noted." 61. Again, the Plaintiff self-discharged on 11/4/05 against medical advice, and "did not wait for [a] second procedure" that was apparently intended. (Exh D pp 2 and 2a). After this second operation, the Plaintiff felt a little different but still in pain (T. 02/03/05). He felt emotionally "very bad", which he clarified as nervous (T 02/03/09 p. 24/1 - 6). He began to feel more pain in his back and shoulder than before; also in his hand because he used a walking stick; he also experienced shivering. 62. On 13th April the Plaintiff complained of worsening of pain lately. Doctor noted the weather had been cold lately. Still having interrupted pain and limitation of movements causing difficulties in performing his normal daily living activities. On this occasion Doctor's medical diagnosis was heartburn, dyspepsia and dry reaching cough plus sputum production. Blood pressure 146/70. 63. On 27th April the Plaintiff complained to Dr Douaihy of ongoing symptoms with few exacerbations mainly after exertion or movement. He was still having interrupted sleep and limitations to daily activities. The Plaintiff was requesting investigation for his right upper limbs. The Doctor diagnosed the medical condition at this time as coughing with sputum. The abdominal pain with reflux was now gone, and the blood pressure was again high 140/80. It would appear a decision was urged to medicate that condition. 64. Dr Douaihy continued to see the plaintiff through the following months of 2005. The situation appears stable throughout those months – continual complaint of ongoing pain, stiffness and limitation of movement interfering with sleep and daily living activities. There was also a consistency in complaining of depression, frustration and lack of self-esteem. Simultaneously with these complaints the Doctor continued to deal with coughing with sputum, abdominal or epigastric pain, reflux symptoms, high blood pressure readings. To these symptoms were, from time to time, added dizzy spells, headaches and weakness. On only one occasion was there a concession by the Plaintiff of obtaining relief from analgesic and anti-inflammatory medications. 65. On 1st June 2005 Dr Mahony again review the plaintiff for Dr Douaihy. On examination of the neck he noted it appear restricted at the extremes – but little remaining movement was carried out because of guarding. On examination, the right shoulder appeared restricted to about 80 of abduction. In the case of the shoulder little rotation was carried out. X-ray of the right elbow showed early degenerate changes, including an olecranon spur. It was Dr Mahony's opinion that the Plaintiff presented with symptoms referable to a cervical strain with nerve root irritation affecting the right upper limb, a rotator cuff lesion of the right shoulder. He found evidence of a discogenic lesion at the L3/4 level with spinal stenosis at this level. There was spinal stenosis also at the L4/5 level and a disc lesion at the lumbosacral level. 66. On 14th July 2005 the Plaintiff attended upon Michael Neuvonen, a physiotherapist with Inner West Physiotherapy & Sports Injury Centre who indicated he had commenced a treatment program consisting of ROM exercises, stretches, electrotherapy, modalities, gait training, strengthening exercises and a home programme. 67. On 19th July 2005 the Plaintiff was trying to get out of bed, felt pain in the lower limb and lower back that caused him to cry. He told Dr Douaihy that with time it started to improve. 2006 – On going medical issues 68. By June of 2006, Dr Douaihy was becoming concerned with ongoing problems with other conditions the plaintiff was presenting with: obesity, hypertension, abdominal pain, borderline blood sugar levels and diabetes or the potential for diabetes to develop. He was seeking a management plan from his patient that would focus upon achieving an ideal body weight, keeping blood pressure and blood sugar levels within reasonable limits. I should note the Plaintiff's complaints at this time were much the same – pain and stiffness in lower limbs and lower back, ongoing depression and frustration. 69. During 2006 there appear to have been 10 visits scattered more or less monthly to Dr Douaihy. Doctor continued to focus on the two sources of illness – the plaintiff's symptoms arising from the fractured tibia and fibula in the lower left leg; and the demise in the general well-being of the Plaintiff as his abdominal/epigastric/reflux, high blood pressure, deteriorating blood sugar levels, pulmonary, smoking and obesity issues continued to plague him. During these visits the Plaintiff's complaints to Dr Douaihy continued to refer to on going pain in his knee, lower back, right shoulder, left lower limbs, interrupted sleep, limitation of movement and interference with daily living activities. He continued to express frustration, depressive symptoms. In January he complained that his sexual life had been affected lately and was given Viagra. 70. He was prescribed Valium, presumably by Dr Onsy Mattar to soothe his nerves and give him less disturbed sleep. He was referred by Dr Douaihy in October 2005 to Dr Mattar for psychological treatment. He appears to have visited Dr Mattar for the first time on 6th February 2006. Dr Mattar diagnosed anxiety depressive disorder, pain disorder and adjustment disorder. The psychological treatment consisted of cognitive behaviour therapy, counselling, pain-management and relaxation and support therapy. The Plaintiff reported symptoms including pain, poor sleep, depression, stress, no sex life, unable to relax, back pain, fear, poor self-confidence, adjustment disorder. From the notes before me it would appear he attended upon Dr Mattar monthly from April 2006 at least until July 2007. The Plaintiff gave evidence of visits to Dr Mattar in January 2009. His evidence was that after these visits he felt a little be relaxed but not much (T. 02/03/09 p. 39/23-33) 2007 More visits to Doctors 71. The first entry in Dr Douaihy's notes for 2007 appears to be 08.01.07: "5 days ago presented to Sydney Eye Hospital – left central retinal …" I am unable to decipher the remainder of this part of the note. But doing the best I can with this evidence, I find that the Plaintiff went to the Sydney Eye Hospital on about the 2nd January with some serious eye complaint. I return to the Doctor's notes. Doctor diagnosed a medical condition of severe headaches, dizzy spells, tiredness, sweating and lethargy. Looks unwell but in no distress…. Likely viral [or] food poisoning. 72. The Plaintiff returned to Prince Alfred Hospital in February 2007. His evidence was his leg had not mended in a good way. He was feeling more pain. He was taking 5 tablets three times daily, six of those were Panadine Forte. In the absence of Panadine Forte he became agitated (my word) with the pain. (T. 02/03/05 p. 29-30). Dr Mark Horsley advised Dr Sarkis (sic – read "Dr Douaihy's" whose given name is Sarkis) that the Plaintiff "underwent a repair of an old quadriceps tear from the left leg today at the RPAH …. He will now be in a splint for six weeks with a range of movement from 0-45 degrees. He will be able to weight bear on this leg as able." 73. On 9th February Dr Douaihy saw the Plaintiff, who listed ongoing pains, depression and limitations as troubling him. Medical condition was described as blood pressure 130/80; dizzy spells, headache, ear ache (no infection). A fortnight later the plaintiff was complaining of an exacerbation of his pains in the last few days. He was asking for more pain relief and psychologic (?) support. Doctor noted he would need referring to the Pain Management Clinic. (Both psychological and pain management at this time were being handled by Dr Mattar.) On this occasion the doctor described the plaintiff's medical condition as flu like chest illness; blood pressure 144/80. 74. On 16th March the plaintiff told Dr Douaihy he felt the pain was worse during the flu illness, there was tenderness over the lower back, left knee and ankle. The doctor diagnosed a viral coughing. Blood pressure was 110/80. 75. On 5th April 2007 Dr Douaihy again saw the Plaintiff. He complained of ongoing pain and symptoms, including visual disturbances. He told the doctor he was suffering social and family (?) interruptions by his symptoms; that he had been compliant with his medication, mainly antidepressants. On this occasion his blood pressure was 120/80. 76. 17th April Doctor received complaints of ongoing pain in the neck, lower back and lower limbs left greater than (?) right interrupting his sleep and daily living activities. 77. On 23rd April 2007 he was reviewed by Dr Horsley, who advised Dr Douaihy that the repair of the plaintiff's ruptured quadriceps tendon "seems to be progressing well, although he still has a small defect which I do not think will be a problem. He now requires strengthening exercise which we can arrange through a physiotherapist. I feel in the long-term he will have a good leg which will not pose him any particular problems." 78. On 25th May there was ongoing back pain, bilateral lower limb pain mainly the left side; also right shoulder pain. There was another visit to the treating doctor on 31st May 07 with complaints of exacerbation of lower limb pain due to a twist while walking. The pain is causing stiffness and limitations of movements. On this occasion he was advised on diet and exercise, no doubt because his blood sugar level was 13.1. 79. Thereafter visits to the treating doctor appear to become less frequent. So far as I can tell the next visit is on 17th August 2007. On this occasion he complained of pain in the left knee, and some swelling (soft tissue (?)) in the middle of the left leg. Again he was advised on diet and exercise – blood sugar level 8.8. 80. There is a visit on 3rd October 2007, when the plaintiff complained of lower back pain and bilateral lower limb pain with stiffness and limitations of movements. This happened as an exacerbation of ongoing pain and discomfort. On examination there was tenderness over the lower back and the left knee. 81. On 12th November, the plaintiff attended his first visit to Dr Douaihy after the pleadings had been filed. Doctor Douaihy noted the patient was complaining of severe lower back pain causing stiffness of the muscles across the whole spine and causing headaches. He was also complaining of left knee pain and lower limb. The pain was worse on the right side of the back and right lower limb. The patient said he was frustrated and fed up with his life, pains and limitations. Examination revealed tenderness across the back, neck and the lower limbs. He was prescribed analgesia, anti inflammitories and rest. 2008 – More of the Same 82. Doctor's notes of the Plaintiff's visit on 5th January 2008 appear in two places in Exh D 15. On the occasion of this visit the patient complained of severe pain in the left leg, mainly the left knee area that is causing him extreme discomfort and inability to walk. There were complaints of lower back pain and stiffness. There was also pain to the neck, shoulders that is causing him stiffness and limitation of movement. He was to continue on with the analgesics, anti inflammatory medication. 83. Notes of a visit on 2nd April 2008 also appear in two places in Exh D 15. They have the plaintiff complaining of exacerbation of his ongoing lower back pain, left knee pain. He said the pain also affected his right lower limb as well as neck pain. There was an examination of him by the doctor, but as far as I can tell the findings of that examination appear to relate to his obesity and issues connected to that, which was followed by advice about diet and fluids. 84. There was a second April visit on 24th. The Plaintiff expressed himself as being frustrated and anxious as well as depressed because of the pain and discomfort and limitation of movement. Doctor was told there was an exacerbation of symptoms, mainly lower back, left lower limb. 85. On 24th June 2008 Doctor notes URTI (Urinary Respiratory Tract Infection) coughing, myalgia (?), headaches, chest wall pain, chest sounds(?) wheezy. There was complaint of an escalation of symptoms relating to his leg injury – mainly in the lower back, left lower limb with tenderness, as best I can tell, in the region of the pre-patellar (kneecap) tendon. 86. On 16th August 2008 Doctor notes ongoing cough and sputum production for the last 2-4 days. Fever shivering. Chest wheezing. On going symptoms of pain, stiffness, depression, panics. Counselled. The Plaintiff's Evidence - Disabilities and other claimed sequale of the trauma 87. The Plaintiff gives evidence of on-going pain from the injury site, lower back, right shoulder, and right leg. He has to wear a leg brace daily – which he described as "something similar to the foot but it's thick and very strong" (T.02/03/09 p.36). When he takes it off at night his leg is swollen, he experiences too much pain and starts crying (ibid). When asked which was [his] worst pain he replied: In my shoulder (left one), back and knee. He modified this answer almost immediately by saying the worst thing in his body was his leg and back, with the leg being the worst of all (T. 02/03/09 p. 47/1-24). There is never one day he is without pain in his leg or back. On a scale of 1 – 10 with 10 being most severe, he put the pain at 8 (T. 02/03/09 p. 47/27-37). There is some scarring to the left leg (T. 02/03/09 p. 48/25-30). 88. It is the Plaintiff's case that he cannot rise from his bed in the mornings without help since breaking his leg (T. 02/03/09 p. 30), nor can he walk without the aid of a walking stick or walking frame. In the absence of one or other of these aids he falls down. When using the walking stick he pushes down on it with such force that he now experiences pain in his hand. (T. 02/03/09 p. 27). 89. He says he is unable to shower without the help of his wife. The carer has now become the cared-for; and the cared-for has now become the carer. She shaves him, and also dresses him. These tasks take her about an hour each day. Prior to his wife taking on the work he engaged a student who came for three or four days from 9 o'clock in the morning to 8 o'clock at night. He cannot now remember how much he paid that student (T 02/03/09 p. 33/13-30). His evidence is it would be better for him if a handrail were installed in the shower (T. 02/03/09 pp. 43/16 – 44/15). Showering was revisited towards the end of examination in chief. The Plaintiff's evidence was he was unable to wash his hair by himself, Sonya washed his hair and fixed it. She assisted in clothing him. When he goes to the toilet she follows him and stays with him because often he has a difficult time (T. 02/03/09 p. 46/37-49). 90. Prior to the fall he helped around the house with tasks such as sharing the cooking, vacuuming, watering the plants and washing duties. Since he fell he is unable to do any of these duties (T. 02/03/09 pp. 33/32 – 35/5). 91. Since his injury he has fallen down many times. He estimated five times in one month, four in another, and as late as the morning he gave evidence he fell because he had not put a brace on his leg (T. 02/03/09 p. 35/7-31). He complained to a doctor at the Royal Prince Alfred Hospital about falling, and was prescribed a brace to wear on his leg so that it would not twist. He wears this device daily, although as events turned out he was not wearing it on 2nd March 2009 when he was giving evidence. 92. He has been unable to drive a car since receiving his injury, because there is insufficient stamina in his legs. He uses taxis. He does not use buses or trains, because he feels bored from the people, by which he may have meant demeaned or patronised (my words), because he explains – "people want to give me a hand …– I feel old man, I feel I'm something else. I'm not feeling Ali Jammal. I'm not feel that man is strong man, is singing in the stage three hour, sing, dancing. I'm not feel singing and dancing on the bus." (T. 02/03/09 p. 37/11-39/6). 93. The Plaintiff's evidence is that he has paid for medications, and taxis that have transported him from money brought to him from a friend, sent to him from siblings in Lebanon, from borrowing money and selling his wife's jewellery (T. 02/03/09 p.39/34-50). 94. The Plaintiff claims to have increased his cigarette consumption from one packet daily to two packets daily. Before the accident he smoked only one, but has increased his cigarette consumption because he doesn't eat, he doesn't want to become fat because he is a singer and dancer (T. 02/03/09 p.40/12-35). His evidence is that he has put on 45 kilo since the incident (T. 02/03/09 p. 46/21-25). 95. He last sang and danced publicly four years ago. He is now unable to perform because he is unable to stand up for two hours or more hours. His evidence is he misses the work and the affection of his audiences. He becomes sad when he watches other performers. (T. 02/03/09 pp. 40/50-43/15). Had he not been injured he would have continued with his work as an entertainer, singer. He reinforced his earlier evidence of missing the work (T. 02/03/09 pp. 47/39-48/5). Exhibit E – a CD video of three Octobers 96. A CD containing video footage of three occasions when the plaintiff was engaged in his work as an entertainer, singer and comic was tendered in evidence. In became Exh E. The three occasions were the 9th October 2000, 9th October 2001 and the 10th October 2002. The only significance those dates have in evidence, thus far, is that the 9th October is a date given as the Plaintiff's birthday. The Plaintiff's evidence of Chapter 12, the last function on the video CD was "Last one before the accident. Because every year I do party special in my name." The CD was not played in the Courtroom, but I have completely viewed it, and viewed parts of it more than once. I am not satisfied these performances were paid performances. 97. The Plaintiff has presented on each occasion in the video footage as offering mealtime, or post mealtime entertainment. In each case his audience was seated at elongated tables arranged in rows, clearly consistent with their being invited to attendance at a celebratory function, rather than random guests at a club or restaurant. He presented attired in up-market double-breasted suits or an ornate sports coat. He was well received by the audience, sang in a language that was probably Arabic. He was confident, moved freely and without any sign of discomfort. In the 2002 performance in particular, he engaged in dance – showing energy, litheness, flexibility in leg, back, neck and shoulder movement. While no performance was as sustained as 2 or 3 hours, the last, which was the longest, occupied about 30 minutes of the CD. On that occasion he performed with an unidentified partner. I have not ruled out the possibility that it may have been his wife. Indeed there was a familiarity his partner took at the end of their act in wiping his face and hair with two hands and then embracing him, which is completely consistent with a level of intimacy found in a wife. 98. He was confident, poised, clearly enjoying himself, and appeared to have good repour with his audience. 99. By contrast in the courtroom the Plaintiff presented as a spectacle of misery. He shuffled from his place in the courtroom to the witness box with extravagant difficulty. He leant heavily on a walking stick as he moved with deliberate slowness and dramatic effort. He is tall, once well built but now a markedly obese man giving off an overstated sense of presence. His discomfort, whenever experienced in the court was floridly displayed. There was no effort to hide or minimise his problems. He took full advantage of his performance skills to emphasise his woes. The contrast between the witness and the performer who was the centre of warmth in the CD of the videoed performances was marked. The Medical Reports generated by 2004 injury Dr Harvey Sutton' Reports 100. The Plaintiff qualified Dr P.L Harvey-Sutton, Consultant Occupational Physician. She saw him in her rooms on 10th July 2007, and 19th February 2009. On the first occasion his wife and an official Arabic-speaking interpreter accompanied him; on the second only his wife accompanied him and interpreted when necessary. 101. On the first occasion he gave an education and occupational history, and a history of his presenting condition. On the second he confirmed those two histories. His educational and occupational history established that he had completed Year 9 in Lebanon and subsequently trained as singer, actor and dancer, which activities he did throughout the Middle East prior to arrival in Australia in 1987. He continued to work here as a singer, and frequently in a belly dancing act with his current wife. At the time of the accident he was performing at the Serenade restaurant three to four nights weekly. 102. In 2002 he fell hurting his neck and back. He had been off work for a year and a half before returning to work. He had not worked since 18th October 2004. 103. The history given by the Plaintiff of his presenting condition as recorded by Dr Harvey-Sutton throws up a number of inconsistencies with the evidence he gave and established objective facts. Even though I am reviewing the Plaintiff's case at this point, it is convenient to interpolate the history given to Dr Harvey-Sutton at this point. He told her he had minor pains in neck and back at the time of the fall at Dr Tadros's premises, but these were controlled with exercise and meditation. From what she was told Dr Harvey-Sutton understood the fall occurred as the plaintiff, who had been at the defendant's premises to collect a certificate in relation to his wife's back problems, walked across the doorstep there were new tiles and he slipped on the tiles and fell, breaking his left leg. He was taken to Royal Prince Alfred Hospital where he immediately underwent surgery to the left leg. He went home, his wife helped him shower and perform personal care and all the activities in and about the house. He attended for medical re-examinations but otherwise did not leave the house. He underwent a second operation about six months later with the insertion of two metal bars, 20 screws and two plates. The left leg was then in plaster for a further six months and he continued to be in a wheelchair. A further six months later he underwent a third operation on his left knee and was again in a wheelchair and on crutches for a further six months before he started mobilising with a walking stick. Now he continues to walk with a walking stick at home and outings. He has developed pains in his neck and lower back and pain in the right shoulder with restriction in movements of the right shoulder. He also developed pain in his neck and lower back and pain in the right shoulder with restriction in movement of the right shoulder. He believes he injured his right shoulder as he fell. 104. He told Dr Harvey Sutton he had been diagnosed with Diabetes in 2008 but otherwise has had no other medical condition except that since the fall he has been unable to control his bowels and wears a pad. He also continues to use his walking stick, which he uses in his right hand. 105. His medication included Brufen, Valium, Panadeine Forte, Panamax and antidepressant medication. 106. When seen in 2007 he complained of severe sharp pains in his neck and back much more than his prior pains. He described severe stabbing pains in the left leg all down its length especially at night. Sometimes there was swelling in the left leg. He had added 25kg to his weight. He was dependant upon the walking stick for mobility. He had become irritable and temperamental. 107. In 2009 he described his condition as "more bad" and "more pains". The pains in the right shoulder were worse and he could not lift up the right arm. Pains in the neck and back existing before the accident were now worse, the neck felt much stiffer and he had to move his whole body to look over his shoulder rather than rotate the neck; he needed assistance getting out of bed; there were now pains in the right leg as well as the left because he had been favouring the left leg. He was unable to sleep without Valium. He continues to have sharp pains which come and go but now occur more frequently and with more severity down the left leg, including the left knee. 108. Activities of daily living also varied between 2007 and 2009. In 2007 he required assistance with self-care, his wife was dressing him and helping with showers. He was doing no household activities, and had ceased to use his home exercise bike because he was no longer able. 109. By 2009 he was not independent in self-care, his wife is washing and dressing him every day. He was still doing no household activities. He used to use a treadmill but now no longer uses the treadmill. He has not driven since the fall. He spends most of his time mainly at home watching TV. He believes he is putting on weight. 110. When conducting her clinical examination in 2007 she observed the Plaintiff was of solid physique, reportedly 165cm in height, and weighed 100kg with a body mass index of 36. In 2009 he believed his weight had increased, but Doctor did not put him on the scales because his overall mobility was too poor. In 2007 he walked with limp holding a walking stick in his right hand. In 2009 he walked using his walking stick with a straight left leg, which was in a brace. 111. In 2007 his wife had assisted him on and off the examination couch. In 2009 even though the wife assisted him, Dr Harvey-Sutton records the plaintiff had difficulty. She notes he had difficulty moving generally. On both occasions his wife assisted him in disrobing and robing, particularly in assisting with removal and putting on his shoes. In 2009 Dr Harvey-Sutton was of opinion that the Plaintiff's overall mobility has deteriorated significantly. 112. On examination of the Plaintiff's neck she found there was generalised reported tenderness over the posterior aspect of the neck and across the shoulder ridges (only the right shoulder in 2007). There was minimal movements of the head and neck displayed on formal examination, but in 2007 a greater range on informal examination. That position had changed in 2009 to a reduced range of movement on informal examination. 113. On inspection of the upper limbs she found no significant wasting or deformity. There was a normal range of left shoulder movement. As to the right shoulder the range of movement was reduced with forward flexion to 90degrees in 2007 down to 70degrees in 2009, abduction 70degrees, minimal extension and half normal range of internal rotation and external rotation. 114. On inspection of the back, the posture, alignment and contour were normal. There was a generalised reported tenderness over the lower lumbar spine. In 2007 Dr Harvey Sutton described minimal ranges of back movement displayed on formal examination and a greater range of back movement displayed on informal examination. 115. On inspection of the upper limbs she found no significant wasting or deformity. There was a normal range of left shoulder movement. As to the right shoulder the range of movement was reduced, with forward flexion to 90degrees in 2007 down to 70 degrees in 2009, abduction 70 degrees, minimal extension and half-normal range of internal rotation and external rotation. 116. On inspection of the back, the posture, alignment and contour were normal. There was a generalised reported tenderness over the lower lumbar spine. In 2007 Dr Harvey Sutton described minimal ranges of back movement displayed on formal examination and a greater range of back movement displayed on informal examination, In 2009 that formal examination was recorded as yielding a one-third normal range of forward f1exion and extension and lateral bending to the right and left. Apparently there was no informal observation of back movement in 2009. 117. Dr Harvey-Sutton noted significant deformity and wasting with the circumference of the thighs in 2007 being 45cm (right = left) and calves 40cm (right) and 38cm (left). This had changed by 2009. The thighs were asymmetrical (50cm for right thigh, 45cm for left). The right calf was 39cm and the left 38cm. 118. Scarring had improved during the two years. In 2007 doctor noted in detail four scars. In 2009 she reported a 12cm vertical scar on the left knee with an area of depression - about1cm above the patella; there was also a 22cm vertical scar over the distal left foreleg and foot. She observed that the other scars had substantially improved. 119. In 2009 Doctor observed that on examination of the left knee there was generalised reported tenderness. It was difficult to test his left knee for instability because of his reactions. Dr Harvey-Sutton interpreted the wasting of the thighs as accounting for feelings of instability and the advice by Dr Horsley to wear the left brace. She recorded flexion of the left knee to 60 degrees, against a norm of 135 degrees or more. In 2007 Doctor had noted the plaintiff was unable to flex the left knee whilst lying on the examination couch and whilst sitting on it he was unable to extend his left knee. The 2009 situation must be seen as an improvement on the 2007 one. 120. In 2007 a range of ankle flexion to 10 degrees dorsiflexion and 20 degrees plantar flexion were recorded. That remained stable in 2009. 121. Her formal examination of his gait was summed up in both reports as walking with a walking stick, and granted his overall level of mobility she did not request him to walk without one. 122. In 2007 she expressed an opinion in relation to the right shoulder that the plaintiff appeared to have developed a frozen right shoulder - right shoulder adhesive capsulitis. She diagnosed the neck and back pain as appearing to be secondary to his prolonged period of immobilisation and consequently his deconditioning. 123. It was Dr Harvey-Sutton's opinion that the fractures and complications arising from non-union, together with the right shoulder adhesive capulitis, were a direct result of the accident. She said the aggravation of neck and back pain were consequent upon a period of significant immobilisation resulting from the nature of the leg injuries sustained. Dr Harvey-Sutton - Level of permanent impairment 124. There was an updated assessment of the plaintiff's level of permanent impairment undertaken by Dr Harvey-Sutton. This report was objected to, and admitted over objection. In 2009 it was Dr Harvey-Sutton's opinion that the Plaintiff's condition appeared to have significantly deteriorated. He appeared not to have remobilised but further de-conditioned to the extent that he now requires a brace on the left leg/knee to avoid falling from a feeling of instability in the left knee. 125. She seeks to support this opinion with what she says is objective evidence- namely the asymmetry and dimensions of the thighs and calves. In other words there are objective signs of his incapacity/disabilities that can reasonably be attributed to the subject accident. That opinion itself seems self-qualified by her observation although he does appear to over-react in his presentation somewhat. 126. In May 2008, based upon her findings in her 2007 report, Dr Harvey-Sutton found the plaintiff had a 20% permanent impairment as compared with that of a most extreme case. In coming to this figure she took into account the nature of the injuries as she had observed them and the age at which these injuries had been sustained. 127. In 2009 she assessed his overall impairment to include 35% for the left leg, 10% for the neck, 10%for the back and 10% for the right shoulder exclusive of the over-reactive component. 128. Dr Harvey-Sutton clarified the basis for upgrading her assessment. It seems there were a couple of further factors she now took into account. Firstly, she understood as a result of further training and experience that the assessment required by the Civil Liability Act 2002 includes the entirety of all physical, emotional and behavioural conditions resulting from the accident when assessing permanent impairment; that is the assessment was not simply confined to evaluating the injury to the body part. 129. Upon this revised basis – and no doubt taking into account his deteriorated condition she assessed the overall impairment from the left leg to be in the order of 35% - excluding any over-reactive component. Further, even when taking account of his over reactive presentation, her opinion was that based upon his overall level of immobility resulting in significant de-conditioning, over and above his pre-existing levels of impairment, she found a further 10% permanent impairment for each of the right shoulder, neck and lower back. Dr Harvey-Sutton – Assessments of on-going needs 130. In 2007 Dr Harvey-Sutton was of opinion that the plaintiff would not regain sufficient mobility to work as a singer/entertainer in the future. It was her opinion that he had regained some mobility and in the foreseeable future should be able to be independent in self-care. But he would not regain full capacity to perform household duties especially gardening and lawn mowing and handyman activities. In coming to that opinion it would seem she had some regard to time taken for the fractures to heal and the plaintiff's level of past immobility including time confined to a wheelchair or crutches which in the history led her to a view of his being immobilised for a period of some 12-18months. 131. Doctor was of a view the plaintiff would need an extensive physiotherapy program to address remobilisation and general fitness. She envisaged a program of three times weekly for three to four months including a gym based exercise program. 132. She estimated he would have required 3 hours daily domestic assistance during the period of immobilisation to cover personal, domestic and handyman activities. Once the period of immobilisation had concluded the need for daily domestic assistance would have reduced to 2 hours. She thought future daily domestic assistance would have fallen to 8 hours as the plaintiff remobilised, but such assistance would be required for the remaining years of his life. Other Medical Information Dr Douaihy's Treating Doctor's Report re a Disability Support Pension 133. Exh G, the Plaintiff's Centrelink file indicates the Plaintiff was granted a Disability Support Pension on 22nd May 2006. Dr Douaihy has provided a Treating Doctor's Report dated 28 /4/ 06. 134. On 28th April 2006, Dr Douaihy answered a series of questions set out on a CentreLink form headed "Treating doctor's report". When asked for a diagnosis Doctor Douaihy answered: "Fracture of left ankle. Disc prolapse lumbar spine and degenerative disease of the spine. He did not specify any date of onset or date of diagnosis. He listed in the "History" section of the form headed "Clinical features": continuous aches and pains associated with stiffness and limitation of movement. Patient had a fall and found to have a fractured ankle and soft tissue injuries to the spine and upper limbs and lower limbs. He listed the "Current symptoms" as: severe pains and limitation of movements. Multiple operations on the ankle. Patient is bound to a wheelchair and a walking stick. Doctor listed current, past and future planned treatment as "analgesia, anti inflammatory medicines". When providing details about how the conditions affected the Plaintiff's ability to function, the doctor wrote, "severe pain, frequent exacerbation and limitation of movements. Unable to walk because of pain and plaster". He said the condition was expected to persist for more than 2 years, and within that time the plaintiff's ability to function in respect of this condition was uncertain. 135. Doctor Douaihy referred to a second condition – severe depression. He did not specify any date of onset or diagnosis. He reported the clinical features as "sad, anxious, teary, loss of social interaction and loss of interest in most of the activities he used to have. Under "current symptoms" doctor wrote, "Seen by Dr Mattar and confirmed his diagnosis. He is on Avanza and counselling therapy. He is low in mood most of the time, lost his motivation and interest in activities and having episodes of loss of concentration". Doctor thought the condition would last more than 2 years and within the next 2 years the plaintiff's ability to function in respect of this condition is expected to fluctuate. 136. When asked if there was other information he would like to provide Dr Douaihy wrote, "patient is genuinely affected by his symptoms and frequent operations causing him limitation to move and even perform his activities of daily living." Occupational Therapist's Report arising out of 2004 injury 137. Anup Kumar Magipudi, an occupational therapist saw the Plaintiff in December 2007. In a report dated 15th May (Exh D-24) the therapist reported findings to the Plaintiff's solicitors. 138. A history was taken of the circumstances in which the injury occurred and treatments received. The Plaintiff told the occupational therapist he experienced severe sharp pain in his neck, lower back, right shoulder and both lower extremities. He was managing the pain with painkillers, but complained the medication made him feel dizzy and sleepy. There were complaints of stress, depression, anxiety and an absence of hopes for recovery. 139. He complained of feeling nervous, angry and upset about the impact of the accident on his life. He complained of loss of memory, financial hardship, poor sex life and now being addicted to smoking (2pkts of cigarettes daily). He complained of putting on weight. He did not report any other major health related issues to the therapist. 140. The Plaintiff reported difficulties with self-care such as showering, grooming, washing his hair, feet and back. He needed assistance from his wife. During the interview he told the therapist he was currently hiring a student from Egypt who assisted him in these tasks on a regular basis. The plaintiff reported having difficulties dressing especially the lower part of his body due to restricted range of motion, and weakness in his right shoulder. He reported difficulty toileting due to ongoing lower back pain. 141. The Plaintiff reported experiencing difficulties with sweeping, vacuuming, making beds, cleaning bathrooms, toilets, window cleaning, washing and hanging out clothes, ironing clothes, cleaning the front or back yard, cleaning gutters, gardening and other general household and maintenance work. His wife and the student were currently assisting him with these. 142. There were difficulties with meal preparation. Prior to the fall he was independent meal preparation (sic). He is now dependent in cooking. He would require assistance with peeling, cutting vegetables and meat, manipulating heavy pots. He relies on frozen food, and on occasions his wife cooks small meals. He needs assistance with shopping, especially when carrying groceries home. His wife assists him with small shopping on daily and weekly basis. 143. The Plaintiff claimed he was currently housebound, did not access transport. He would rely upon taxis when needed. He had difficulty driving due to pain in his neck lower back and legs. He gave up driving temporarily when his drivers' licence expired. He claimed he would like to renew his license if the current situation improved. 144. The therapist took a history from him of only being able to sit, watch TV and attend to phone calls as the catalogue of his leisure activities. 145. Anup Mangipudi assessed the home situation. It was a privately rented two bedroom independent single level house at Marrickville. There were 3 steps in the front yard with a handrail, metal fence on the right side and one step into a large rear yard. There was a small garden in the front. There were no rails near shower, toilet, and hand shower, and shower chair. The therapist described him as "concerned" by these absences. 146. The Plaintiff told Mr Mangipudi he finished Year 11 in Lebanon and moved to Australia in 1987. That he had worked as actor, singer- dancer and entertainer all over the world, including in Australia prior to the accident. He was currently unemployed, unemployable and on a disability support pension. 147. The occupational therapist conducted a clinical examination. Lumbosacral spine (trunk) range of motion was reduced during examination, flexion reduced by 70%, extension reduced by 60% and rotation reduced by 40%. The plaintiff reported pain and stiffness during the assessment. 148. Cervical Spine (Neck) Flexion was reduced by 50%, extension by 45% and rotation by 50%. Slow movements were noted during the assessment said to be associated with pain and stiffness. The Plaintiff would turn his body so as to be able to look right or left. 149. Right shoulder abduction reduced by 60%, extension by 40%, internal, external rotation also restricted. Plaintiff reported mild pain in right shoulder. Left shoulder: abduction reduced by 20%, flexion, extension reduced by 30%, internal, external rotation appeared to be restricted. 150. Left lower extremity: left hip flexion reduced 30%; extension by 20%, internal, external rotation reduced by 20%. Left knee flexion reduced by 60%, extension reduced by 50%. Left ankle – plantar flexion 10%, dorsi flexion by 20%. The Plaintiff reported pain in both lower extremities especially while standing during the assessment. 151. The muscle strength in the upper extremities was measured to be 3 for the right side and 2+ for the left side. In the lower extremities for the right side it was 2+ and for the left 2. The potential range was 0 - 5, 5 being strongest. The therapist found his grip strength in both hands was reduced when compared to other men of same age. 152. During this consultation the Plaintiff reported a constant pain level of 8 out of a potential worst score of 10. 153. During this assessment Mr Mangipudi had available the results of the Lumbar spine x-ray 15/12/04; the right elbow x-ray 4105105 and the ultrasound of the right shoulder taken the same day. 154. The Plaintiff reported activity tolerance as follows: sitting 30 minutes. He was observed to change his position from time to time during assessment. Walking 10 minutes maximum needing supervision and physical assistance. Standing 5 minutes. Mr Mangipudi observed him to be shaky during the assessment which was attributed to pain and medication. Sleeping was limited to 4-5hours. 155. The Plaintiff was able to walk on even services with relative ease providing he took regular breaks. An assumption was made that he would have difficulty with uneven surfaces. He was able to manage small steps using a handrail. An assessment was made that he would need assistance during a flight of stairs. 156. The Plaintiff's capacity to lift weight was limited. The source of the limitation appears to be complaints of pain from the right shoulder when using the right hand, and a pulling pain radiating from his left shoulder when using the left hand. 157. In the summary of Mr Mangipudi's report a note is made that the Plaintiff continued to have ongoing sharp pain in his neck, back right and left shoulder and lower extremities. It was also noted that the functional assessment and other specialist reports indicated that he had restricted range of motion in his neck lower back upper and lower extremities associated with weakness, pain and limitations in personal care task, performing activities of daily living and domestic duties at home. Mr Mangipudi expresses an opinion that the Plaintiff has a reduced capacity to undertake activities of self-care, daily living, work related activities and domestic duties. 158. It was also Mr Mangipudi's opinion that the Plaintiff was dependent in self-care tasks therefore requiring supervision and assistance in washing, showering, dressing, grooming, toileting and washing various parts of his body. He put the quantum of assistance required for these tasks at 30 mins daily. 159. There was also an opinion of the deed for domestic care assistance including cleaning scrubbing toilets and bathroom; washing and hanging clothes on the line; vacuuming and dusting, lawn mowing, window cleaning, rubbish removal and maintenance. The time required for these tasks was set at ten hours weekly. 160. The Occupational Therapist recommended bathroom modifications including installation of two grab rails, shower chair for seating, installation of hand held shower and a raised toilet seat. There was a recommendation for physiotherapy, hydrotherapy for pain management. It was thought the plaintiff may benefit from psychological and vocational counselling and rehabilitation to be able to manage stress and to return to activities as an actor, dancer and singer. 161. It was thought the Plaintiff would benefit from driver assessment-rehabilitation and retraining program for driving and could apply for renewal of his driver's licence. It was thought he may benefit from car modification installation of specialized rear view mirrors and blind spot mirrors in his car, and from Signaller driving aid installation on the steering wheel. Alternatively he may benefit from an electrical rechargeable dual mode scooter to assist in independence in shopping, community access and short distance transportation. 162. Two other potential benefits were also thought to be useful. The plaintiff was considered as possibly benefiting from an electric hi/low remote control operated Recliner with a pressure care cushion. It was also considered he may benefit from an electric hi/lo remote control operated bed with a pressure care cushion to give comfort in sleeping and relief from back pain. 163. Costs of the various recommendations were included in the report. 164. It is likely the Indian doctor referred to by the Plaintiff, T. 02/03/09 p. 29, is Anup Mangipudi, the occupational therapist who saw him in December 2007. THE DEFENDANT'S CASE Testing the Plaintiff 165. The plaintiff was cross-examined by Mr Cutler, counsel for the defendant. The plaintiff's general attitude was one of general uncooperativeness and "playing dumb" based upon an unrelenting suspicion and distrust of every question being asked in cross-examination For example: Q. Have you been to court on any other occasion before coming to court in this case? A. Yes I do Q. Did you tell the truth in that case? A. They didn't investigate me. Q. You gave some evidence in that case, didn't you? A. No. 166. Mr Cutler was intent on putting propositions to the plaintiff in respect of evidence he gave in March 2003 before McLaughlin DCJ. It was the defence case that on numerous occasions in that hearing the accused gave evidence inconsistent with his claims six year later. His Honour Q. The question is, you previously gave evidence in March 2003 before another judge in this court, Judge McLaughlin. Do you agree with that? A. No CUTLER Q. Have you ever been to court seeking damages to the injuries you sustained in the fall at home on 2 January 2000? A. That's right. Q. Was that when you went to court in March 2003? A. As a matter of fact, I went, but I can't remember the date Q. Was it a period of about three years after your fall? Does that sound about right. A. Maybe I can't remember. 167. Mr Cutler was anxious to show inconsistency between the plaintiff's earlier claim to have been immobile subsequent to his slipping and his enjoyment of a carer's pension until 2006. He obtained evidence that after his wife had slipped in 1989 on railway stairs during a short period of employment with State Rail, and subsequently had been hit by a car in 1999 she had an extended period of immobility. During this period the plaintiff's evidence was that he cared for his wife. The plaintiff's evidence was that he cooked, washed clothes, cleaned the house, cleaning and washing his wife, combing her hair, putting her make-up on her. Q. And it was because you were doing all of that help for your wife that you applied for the carer's pension? A. I didn't ask for that. They sent for me because I don't understand about these things.? … Q. It was your understanding, Mr Jammal, that you had been paid this money by CentreLink because you were looking after your wife. Is that right? A. No, I wasn't understanding this thing. I never went to the CentreLink. Q. You understood that you were being paid what was called a carer's pension. Is that right? Q. I don't understand. I never understand these thing. Q. You stayed on what was called the carer's pension up until 2006 A. I don't know anything about this thing? … Q. Was it not paid into your bank account? A. My wife has a book and she was signing the book and then – was signing the book and she was getting the money from the post office. 168. The defence tendered Exh 14, a bundle of documents headed "Plaintiff's Previous Court File" which contained inter alia a transcript of the Plaintiff's evidence before Judge McLoughlin in a matter entitled Jamal Ali Hussein –v- Poppy Sikes. His Honour heard this matter in March 2003. On the 3rd March 2003, the plaintiff gave this evidence: Q. Sir, after the accident did you return to your work as an entertainer? A. No, I didn't and I couldn't. Q. Why not? A. Because I did try only once after the injury and it was the wedding of the secretary from Mrs Mickey(?) and I only sang for five minute. I had to be transported home. I could not carry on my entertainment as usual. Of course, it was free because she's – it was a free service then. (T. 12/3/03 p. 17) 169. In 2003 he was also asked questions about his income stream. Q. Do you earn an income now? A. No income. Q. Do you receive social security benefits? A. Yes, since the day I had the injury the social security has been helping me. Q. Are you on a pension or are your receiving unemployment benefits? A. No, I'm on unemployed benefits and the pension of my wife. Q. You wife is on an age pension? A. She was granted the pension because she was sick and she had a fall or kind of accident then. Q. A disability pension? A. Yes, disability pension. (T. 12/3/03 p. 17) 170. Mr Cutler was critical of the plaintiff's recall in the hearing before me, of his 2000 fall and evidence before Judge McLoughlin. After referring to the relevant page references in the present case, Mr Cutler continued: The evidence can be summarised that on 2nd January, 2000 the plaintiff fell at home and injured his right shoulder, neck and back; he still has pain; after the fall he took a vacation from work but not for long but can't remember; does not recall giving evidence in March 2003; later remember giving evidence; denies having said in March 2003 in court that he did not work and could not work after the 2000 fall; is not correct to say that he did not work at all between January 2000 and 12 March 2003 and that he did not and could not work between January 2000 and March 2003; did not stay out of work for a long time after fall in 2000; concedes that the questions read from the March 2003 transcript were accurate. 171. Mr Cutler accurately encapsulates in that passage the effect of his cross-examination on the 2003 court proceedings and matters which appear inconsistent with his 2009 testimony. 172. On a number of occasions the plaintiff was asked his birth date. He appears to have given two answers: 10th October 1944; (T. 12/3/03 p.5) and 19th October 1944 (T 12/3/03 p.46 and earlier). Apart from my observation about the significance of 9 and 10 October from the point of the performances on those dates as exhibited in the CDs, and the inconsistency in the answers, nothing much else turns on it. The Defendant's Evidence 173. Dr Victor Tadros is a legally qualified medical practitioner carrying on his practice at the relevant premises since 1984. Although he has been at the premises since 1984, he purchased them in 1993. The plaintiff first became his patient in 1989 when the doctor was practicing across the road from his current surgery. The defendant's association with the plaintiff ceased when he slipped and injured himself in October 2004. 174. The defendant sees about 250 plus patients a week, who are usually accompanied by children and relatives. The front pathway and stairs are the only access to the premises. While there is a garage and a back door, the rear access is not available to patients. During his years of conducting the practice at these premises there has never been complaint made about any problem with the front entrance. Since the new tiles have been laid, apart from the plaintiff's fall, the defendant can't remember any others. For his part he has not noticed any difference in the slipperiness between the old and new tiles. 175. The Defendant also relied upon the evidence of the cross-defendant. When the cross-defendant bought tiles from HB Home Improvement, he asked for outdoor quality tiles suitable for a doctor's practice with heavy traffic. He relied upon the recommendation of the shop consultant. The tiles purchased were recommended for outdoor use. He had the services of an ex-tiler when installing the tiles. Step tread fits (nosing tiles) had been installed on the outer edge of steps as an extra precaution. Defendant's Medicals – Pre 2004 medical complaints 176. The plaintiff first consulted Dr Tadros in September 1988. He was last seen by Dr Tadros on 18th October 2004 after having slipped on the surgery steps. He appears to have complained of potency issues as early as February 1997 (Exh 1 p.12) and to have been prescribed Vaigra as early as December 1995 (?) (Exh 1 pp. 8-9) and thereafter on other occasions. 177. There were complaints of migraine and pain in legs in February and March 1999 (Exh 1 p. 23); pain in both lower limbs July 99 (Exh 1 p. 25); painful right shoulder August 99 (Exh 1 p. 26) and October 1999 (Exh 1. p. 21) and continuing. During 1999 his visits to Dr Tadros increased over their frequency in past years. 178. On 4th January 2000 the plaintiff reported to Dr Tadros he had fallen and landed on his back and right shoulder on stairs. He was very tender on the right shoulder and right shoulder blade. Dr Tadros prescribed Valium on that occasion and again thereafter. On 24th January he had an episode of chest pain and "collapsed". There was pain in his right shoulder. He was very nervous. (Exh 1 p. 32). Thereafter there is a continuing history of pain in shoulder and back pain; painful left leg (left calf) and right little finger and pain in right thigh (?). On 18th February 2000 he collapsed in Dr Tadros's surgery on account of back pain followed by dizziness. Complaints of not sleeping during the night – even Valium was not helping; complaints of sudden back pain so severe he "fell down" and "having to be supported by people"; walking particular exacerbates his pain, not sleeping because of the pain; pain radiating to both legs; very nervous and edgy (28/2/00); nervous, edgy. 179. The plaintiff's visits to the Doctor Tadros increased during the first half of 2000, sometimes twice weekly. A constant theme was the intensity of his back pain, the areas to which it radiated – dorsal spine, cervical spine, neck and lower limbs, his swollen right little finger, and his nervousness. There was an episode of right sided chest pain in April 2000 which apparently caused the plaintiff to fall to the floor in the defendant's waiting rooms. In early May there were complaints of his being very nervous and argumentative. 180. By July 2000 there were complainants of neck and back pain, with pain radiating to the right lower limbs. The little right finger continued to be a source of complainants of pain and swelling. During this second half of the year visits were not as frequent as earlier in 2000, but still amounted to one or two times monthly. In November 2000 complaints included neck and back pain, right shoulder pain, back pain radiating to right leg, tries to walk but the pain gets bad. Cannot do any tasks with his arms above shoulder level, very nervous, edgy, angry cannot sleep. 181. A year after his 2000 fall he was complaining of stiffness in both neck and back, badly exacerbated back pain; severe painful stiffness of his neck; headaches, pain and swelling of his right finger, tremors in his right hand, pain radiating to right lower limbs, edgy, nervous and looking dishevelled. Visits to the treating doctor continued at least twice monthly. Eighteen months after the fall he was complaining of painful stiffening of the neck, back pain, insomnia, waking up at 6am, very nervous, restricted neck movement, right shoulder very painful, right little finger pain. In August he had painful swollen right leg, pain from knee down to heel. 182. Two years after his fall he was complaining of cramps in both legs, using a walking stick helps, easy fatigability to a point where he was unable to finish showering, back pain, neck pain, very nervous and edgy, headaches, pain in the right shoulder and right little finger. As he continued to see Dr Tadros through the year to the earlier complaints he added complaints of painful swelling of both forearms, pain radiating to both legs, not sleeping well, restricted back flexibility (hands to mid thighs); being very depressed and upset; tenderness at C5 and C6, dizziness. The plaintiff was visiting Dr Tadros at least three times monthly towards the end of 2002. 183. In January 2003 he saw Dr Tadros once; in February three times; in March three times (March was the time of Court hearing). To that point the complaints were consistent with those made towards the end of 2002. In April there were two visits; in May two consultations, one consultation in each of June, and July. There was a complaint of an assault in August as a consequence of which he lost consciousness when pushed to the ground and was taken to RPA. August saw four visits by the plaintiff to the doctor. In the September visit the plaintiff told Dr Tadros he had to go to court on the day of the consultation (presumably in relation to the assault), not well since yesterday, back pain very bad since yesterday; pain in his right breast. From the clinical notes I am unable to say whether he went to court or provided the court with a medical certificate, but I do not rule out the latter. There were four visits in October The only note in the first October visit is his blood pressure at its usual 120/80 and two short words I cannot decipher. In the second there is complaint of pain both radiating to both legs; the third there is a lower blood pressure, he presents as pain, sweaty, clammy. There is a final visit on 31 October relating perhaps to a cough. On 13th November he complains of aches and pains all over. In December his is complaining of back and neck pain and painful legs and some dizziness. On Christmas Eve he complains of pain in his right flanks. 184. What should be noted in the clinical notes for 2003 is the contrast between the first few months and the remainder of the year. No mention of pain in the right little finger which seems to have ceased worrying the plaintiff since the Court case. Complaints of neck and back pain become minimal. Complaints of depression, being nervous, upset, arguing with spouse, loss of sleep, edginess and the like have ceased. The frequency of the visits decreases or now has another explanation, e.g. assault in August or flu in November. 185. In 2004 there is one visit to the treating doctor in January, February, March and April. In the April visit there is complaint of painful right scapula region radiating to the right upper arm, numbness (?) right hand and fingers. The numbness (?) is still there in first May visit. There are three other visits in May. Other Doctor Reports tendered in Defence case – Pre 2004 Condition 186. Dr Monir Younan, a consultant psychiatrist, saw the plaintiff on 30th March 2000, apparently in relation to the broken step between veranda and lounge room fall some three months earlier. On that occasion he appeared to Dr Younan to be detached but mostly depressed, and at times he cried during the consultation. The symptoms reported to D Younan on that occasion were set out Exhibit 7, a report of 3rd April 2000: "[The plaintiff] stated that most of the time he feels depressed and frequently cries. He reported poor concentration and diminished physical energy. He blames himself for his outbursts of anger. He experiences a pervasive feeling of fear and at times attacks of anxiety during which he worries about his heart… He startles on hearing a noise. He has trouble falling and staying asleep. He is extremely distressed because of the bed-wetting. His appetite has diminished and he has lost interest in sex. He also stated that he has totally lost erection." 187. Dr Younan was interested to know if the incontinence was organically caused. He diagnosed a moderate to severe depressive anxiety state with possible dissociative overlay. 188. The defence rely upon the reports of Dr Damien Ryan earlier referred to and the report of Dr Medhat Guirgis dated 24th May, 2001. 189. The defence tendered two other reports of Dr Guirgis. It tendered the report generated by the visit in February 2000 and a report generated after a consultation on 11th February 2002. On this latter occasion the plaintiff complained of severe exacerbation of the pain and stiffness felt in his lower back. He described persistent radiation of pain down the right leg to the foot. He claimed great difficult turning in bed and his wife having to help in that task. There was complainant of stiffness in the neck, persistent radiation of pain to the right pectoral area, the right scapular and shoulder. Occipital headache attack had become less frequent and severe, but he still suffered from them. There were complaints of pins and needles, numbness and tingling in the right hand and fingers and attacks of swelling in the right hand. His little right finger was still painful and stiff. There were complaints of irritability and nervousness creating marital and social problems. There were also complaints of erectile dysfunction. 190. On examination on 11th February 2002, Dr Guirgis found pain and tenderness over the C3 to C7 spines and spances with extension of tenderness laterally to the right and left supraspinous fossa and medial scapular border. There was 25% restriction of range of movements with appearance of spasm in the collar muscles within that restriction. Neurological signs of nerve root involvement were absent. 191. There was residual tenderness over the soft tissue attachments to the greater tuberosity of the right humerus including the supraspinatus insertion was present. Movements of the shoulder were normal. There was pain and tenderness and soft tissue swelling around the capsular ligament of the proximal interphalangeal joint of the right little finger. 192. Examination of the lumbar spine showed that normal lumbar lordosis was lost. Tenderness was elicited over the lower 2 lumbar spine and spaces. Lumbar spine movements were restricted to 30% of the range, with spasm of the para-spinal lumbar muscles on exceeding that range. Straight leg raising was positive on the right side at 70 and on the left side at 70. There were no neurological deficits in the lower limbs. 193. His findings of permanent injury expressed as a percentage of a most extreme case of injury of that portion of the body remained the same as he had found in 2001 for the neck, back, right arm at or above the elbow, right leg at or above the knee, and left leg at or above the knee. Defence Medicals relating to the 2004 slipping incident Dr Robert J Oakeshott, AM 194. The defence qualified Dr Oakeshott, Consultant Surgeon. He first consulted with the plaintiff on 24th January 2008. He took a history that limited the plaintiff's initial injury to fractured left ankle region. No injury to right arm or any part of his back or other area of the body. Surgery, involving open reduction and internal fixation using plates and screws of the left ankle regions fracture was undertaken on 19th October 2004. The plaintiff discharged himself against medical advice on 21st October 2004. He was followed up, including some physiotherapy, at the RPA Fracture Clinic. The follow-up X-rays revealed non-union of the fractured tibia and further surgery was recommended. That surgery was not undertaken until 7th April 2005. 195. During that surgery Dr Horsley, Consultant Orthopaedic and his team inserted an intramedullary nail down the shaft of the left tibia; a bone graft was applied to the fractured area, and the previous plates and screws were removed. At this time a rupture of the quadriceps tendon above the left kneecap was noted. Arrangements were made for its repair. Six months later, in a third surgical procedure, Dr Horsley repaired the ruptured tendon. 196. The plaintiff told Dr Oakeshott he was taking multiple medication including Panamax and Panadeine Forte for pain relief at lest three times daily. He also takes Tramadol and Brufen for the same purpose. Dr Oakeshott was told Dr Douaihy visited the plaintiff's home three times weekly, and on one occasion gave him an injection to settle him down and allow some sleep. (My review of Dr Douaihy's clinical notes does not support either of these claims for the December 2007- January 2008 period.) The Plaintiff told Dr Oakeshott he wears a resting splint on his right wrist on average four hours daily because of constant pins and needles and pain in the whole of his right arm. The plaintiff, in January 2008 was using a walking stick, usually in his hand, but sometimes in both hands, claiming he cannot walk without one. The plaintiff reported a weekly payment of $160 to a man to shower him four days each week. On the non-shower days he remains in pyjamas. He also requires assistance in dressing. Sexual intercourse is now reduced to once monthly instead of three or four times weekly. He said he was independent in toileting. Most of his time is now spent in the home. 197. On the occasion of his visit to Dr Oakeshott the complainant described his symptom as including a lot of pain in the whole of his back, including neck, upper and lower back, on both sides of the entire back radiating down the whole of the right arm to all fingers of the right hand. He also claimed the taxi fare to the consultation had increased his discomfort (affording Dr Oakeshott the opportunity of observing that particular area of discomfort "is not anatomical"). There was complaint for a stiff neck and pain in the whole of the right thigh. 198. Dr Oakeshott reviewed a number of X-rays reports including an X-ray of the Lumbar Spine (15 December 2004). Dr Oakeshott wrote this report noted "extensive facet arthritic change and generalised disc bulging at the L3/4 level causing spinal canal narrowing. There are small, focal, central disc protrusions at the L4/5 and L5/S1 levels which abut the thecal sac anteriorly and compress the bilateral proximal 5th lumbar and proximal right 1st sacral nerve roots." 199. An MRI scan of the Lumbo-Sacral Spine three months later noted "there is moderately severe degenerative change in the lumbar spine predominantly at the L3/4 and L4/5 levels. At the L3/4 level there is mild to moderate central canal stenosis and at L4/5 there is a moderate central canal stenosis There is no evidence of root nerve impingement within the neural foramina. Both the X-ray and MIR of the Lumbar-Sacral spine area convinced Dr Oakeshott the spinal deterioration was degenerative in nature, constitutional in origin and not injury-related. He did not regard these changes as causing any nerve root compression. 200. There was an ultrasound report of the right shoulder dated 4th May 2005 reviewed by Dr Oakeshott. The report noted "sub-acute tendonitis in the supraspinatus tendon." The report stated that "this would be amenable to steroid infiltration." Dr Oakeshott unstood no such injection had occurred. For his part Dr Oakeshott regarded himself as capable of confirming such a diagnosis at an objective clinical examination on 24th January 2008. Dr Oakeshott was of opinion the plaintiff's medical symptoms and objective clinical signs did not correlate with the earlier reported diagnosis. 201. On the same date as the ultrasound ,an X-ray was taken of the right elbow. The related report noted "osteoarthritic change in the humero-ulnar joint". Dr Oakeshott was unable to confirm this on 24 January 2008. He said the plaintiff demonstrated "good right elbow function". 202. Dr Oakeshott made observations arising from his medical examination. He noted the plaintiff was very symptom and pain focused throughout both consultation and examination. He appeared to sit comfortably through the interview, during which he was able to move his neck through a reasonable range of movement and move around in his chair as he demonstrated various aspects of his symptomatology. The plaintiff, entered and exited the chair without assistance, but was assisted onto a higher clinical examination couch by his wife. He walked without a limp. 203. By contrast during formal examination the plaintiff would not move his neck through any reasonable range of movement; nor his right shoulder or right wrist. He demonstrated what doctor thought was a weak grip strength with the right hand. Doctor consider that a suboptimal effort on the plaintiff's part. The plaintiff stood erect during formal examination and indicated he could not move his back at all; a position which did not correlate with doctor's observations of neck and back at earlier points in the consultation, prior to formal examination. 204. The plaintiff refused to raise his left arm above waist height. Doctor's opinion was he had no left arm symptoms. There was no evidence of any muscle wasting in either shoulder. No evidence of muscle spasm or guarding in any part of his back. Colour and temperature of the whole right arm and hand appeared normal. 205. The plaintiff claimed generalised tenderness over the whole of the back of his neck, both shoulders, the upper and lower back both in the midline and to the sides of the midline. The claimed tenderness was to extremely light touch and was not repeatable. Doctor noticed that when he touched the plaintiff's back during periods when the plaintiff's attention was distracted he did not complain of tenderness. Likewise, extremely light finger on top of the plaintiff's head caused pain to shoot down the whole of the back of the neck and whole of the back. As to the latter reaction, Dr Oakeshott's opinion was the plaintiff's claimed response was not possible from the logical, anatomical and physiological viewpoint. In respect of both scenarios doctor's opinion was the claimed responses reflected abnormal pain behaviour response, and indicated a significant psychosocial component to the symptoms. 206. Dr Oakeshott was unable to detect any neurological abnormality in either leg. The plaintiff refused to move the left ankle through any range of movement. He demonstrated reduced movement of the left knee. Left knee straightening was to some 20 short of full extension. Bending was limited to 90. There was a 2 cm wasting in relation to the circumference of the left thigh muscles when compared with the right thigh muscle at the same level above the knee joint. There was generalised tenderness to light touch over the whole of the right thigh and left lower leg and over the surgical scar above the left kneecap. 207. Dr Oakeshott's opinion was the plaintiff's pleasant and joking presentation throughout the consultation and examination was inconsistent with a person who was experiencing genuine discomfort and pain. He opined the plaintiff had made a good recovery from the fracture to the left tibia and fibula. There was a suboptimal recovery from the tear of the quadriceps tendon just above the left kneecap. The plaintiff has limited left knee function. Doctor also was of a view there was limited left ankle movement, some wasting of the left thigh muscle. 208. Dr Oakeshott felt there was significant psychosocial (symptom magnification/abnormal pain behaviour) in regard to this claimed symptoms. Doctor was unable to identify any injury in his back or either shoulder or his neck. He considered no further investigation or treatment of injuries arising out of the October 2004 fall are called for. 209. As to causation, the only injuries Doctor Oakeshott directly linked to the October 2004 fall are the rupture of the quadriceps tendon and the fracture to the left lower leg. In the doctor's view all other complaints including neck, upper and lower back, shoulders and right arm symptoms are unrelated in any way to any physical injury occurring on 18th October 2004. 210. Dr Oakeshott was unable to identify any objective clinical evidence of any physical injury or underlying pathology in his left leg or any other par of his body arising from the fall in October 2004 that would prevent the plaintiff from returning to his pre-accident level of work as described above. Indeed, doctor thought that such barriers as there may be to the plaintiff returning to work arise from factors other than physical injuries occurring on 18th October 2004. 211. Dr Oakeshott's prognosis was that the plaintiff had achieved the maximum medical improvements he is likely to obtain from the injuries arising from the incident under scrutiny. 212. In a supplementary report dated 2nd October 2008, Dr Oakeshott reviewed Magipudi's Occupational Therapy report dated 15th May 2008 (Exh D–24). Dr Oakeshott regarded all of the recommendations made by the occupational therapist as excessive arising from an acceptance of the plaintiff's widespread complaints. In Dr Oakeshott's view the fractured left tibia and fibula and tear of the quadriceps tendon required none of the items recommended. Such further recovery as is open for these injuries could be achieved with continuing exercises, which in his view were important to promote full recovery. 213. There was a further review of the plaintiff by Dr Oakeshott in June 2009. By this time Dr Oakeshott was in possession of Dr Harvey-Sutton's report of 23 February 2009 (Exh D – 23a – formerly MFI 2). During the consultation, the Plaintiff's wife produced a number of coloured photographs of her assisting him under the shower. Dr Oakeshott noted from the photographs shown that the plaintiff appeared able to elevate his right arm almost to the full extent and was able to bend forward so that his body was almost at a right angle to his legs. No photographs of the plaintiff showering were tendered by either side. Neither the plaintiff nor his wife denied the existence of these photographs. Nor was the description of his pose in them disputed or in any way explained consistent with his claimed injuries. 214. At this time Dr Douaihy was not longer visiting the plaintiff. Rather the plaintiff was attending upon Dr Douaihy at Marrickville on average once a fortnight. Otherwise there was no significant change in treatment. There was no physiotherapy or exercise routine, the latter makes him feel tired.. He was seeing a psychiatrist at intervals of what appears to be three monthly. He takes medication for pain relief. The plaintiff had purchased an electric massage chair, which gives him no benefit for his symptoms and also makes him feel tired. His wife does everything for him, showering, assisting in toileting, and getting him out of bed. He has ceased attending at the mosque, but prays at home. 215. I interpolate here that his non-attendance at the mosque, and his praying at home were not taken up in evidence by either side. What physical movement these home prayers require was not explored – and I am left uninformed as to whether there is any compromise between his praying and the physical postures that accompany the Muslim prayers at the mosque. It may have been a subject thought too sensitive for evidence or outside the pleadings – but it may also be a significant measure of incapacity and loss where a person cannot fully participate with his fellow worshipers in the mosque because of physical injury. 216. Dr Oakeshott noted at the second consultation the plaintiff did not present as a person with significant pain or discomfort during the interview. He walked without a limp, but his walking stick in his right hand. He sat comfortably in a chair and was able to enter and leave the chair without assistance. But he did need maximum assistance form his wife when standing onto a moderately high clinical examination couch – a task that included stepping onto and from a small footstool. 217. There was the same reaction to light skin touch over the back, back of neck, shoulders, right arm and top of head as had previously been demonstrated at the earlier consultation. There was the same restriction of neck, arm and ankle movement. Dr Oakeshott noted, however, significant range of neck movement during discussions between the plaintiff and the Arab interpreter present at the consultation. As a consequence of what the consultation and examination disclosed, Dr Oakeshott was not disposed to alter the opinions he had earlier reached. 218. What he did add to this report was his assessments of permanent loss. As to the efficient use of his left leg at or above the knee, Dr Oakeshott estimated the loss of 10% of a most severe case. He said there was no change in that estimate as against the estimate he made in January 2008. He also assessed 0% impairment of his back, both shoulders, neck and right arm in January 2008. He confirmed that assessment in this latest report. Dr Richard Sekel 219. Dr Sekel consults in Occupational Medicine. Parts of his report, conviently formatted in bold type, read as an Advice on Evidence for the Defence. He says he read and agreed to be bound by the Expert Code of Conduct. Opinion evidence is meant to assist the tribunal of fact reach its ultimate decision. Expert witnesses are entitled to do what other lay witnesses cannot do, give an opinion in their speciality which is likely to be outside the tribunal's knowledge. Holding a position such as that places special responsibility upon, and need for objectivity by the expert witnesses – hence the importance of the Expert Witness Code of Conduct. Experts are not knights taking up the lance in combat for the side that retains them. That particular form of seeking justice was discarded centuries ago. 220. Doctor was retained by the defence and saw the plaintiff on 21st February 2008. He noted the plaintiff's past medical history of lower back and right shoulder injury as: Severe pain in lower back, which was diagnosed as due to a ruptured spinal disc; severe pain in the right shoulder, spreading through the right upper limb; severe pain in the neck. Dr Sekel noted a period of persisting symptoms for a period of about 1½ to 2 years. 221. Dr Sekel distilled from the RPA Outpatient notes of 18/5/04 the following symptoms: + One month ago symptoms commenced as upper arm and should pain that radiates from neck. + Fingertips are now reportedly numb + One month of disturbed sleep. + No difficulties with fine motor. + Pain persists in upper arm. 222. As Dr Sekel points out in his report these symptoms were in existence five months before the slipping incident on the defendant's pathway stairs. 223. In his report Dr Sekel came to a view there were a number of injuries the plaintiff clamed were connected to the October 2004 slipping incident that could not have occurred at that time, or arisen as a consequence of the slipping. These included torn left quadriceps muscle/left knee; lower back pain; neck and right shoulder complaints; and right leg pain. 224. As to the torn quadriceps, Dr Sekel's reasoning was based upon the absence of mention of any such injury in the hospital notes relating to treatment of the plaintiff during October 2004. There was no mention by the treating orthopaedic surgeon on this injury at the time of treatment or for some months after. There is only a passing reference to the left knee "area" until 30th March 2005 in the treating general practitioner's notes. The pain referred to at that time is more likely, says Dr Sekel to have been the type of left knee pain arising from a limp due to left ankle injury. By contrast a rupture of a quadriceps tendon is initially a very painful injury causing instability. A treating physiotherapist, nine months after the slip made no reference to any instability of the left knee, which would have been expected had the ruptured quadriceps existed at that time. Dr Sekel notes the initial X-ray report of the left tibia and fibula while referring to the comminuted fracture of the distal tibial shaft also notes "the knee appears intact." The injury is not repaired until 2007 when it is described as "an old quadriceps tear from the left leg". 225. As to the other injuries excluded by Dr Sekel, his reasoning appears primarily based upon failure to report the relevant injury at the time of initial treatment, and entries suggesting no other injury occasioned other than the fractures. 226. As to the fractures, Dr Sekel appears to regard them as satisfactorily healed by 14th September 2005. He notes that Dr Horsley, the Orthopaedic Surgeon who inserted the intramedullary tibial nail on 7th April 2005 noted on 14th September "Doing well. Non-tender over fracture site. Weight bearing without pain. Plan: continue rehabilitation. See again only if necessary." Dr Sekel notes the left ankle region fractures have not required treatment since August 2005. The quadriceps tear has not required specialist treatment since April 2007. 227. Dr Sekel's diagnosis is the only injury caused by the subject fall was the fractures of the left ankle region. 228. It was his opinion that "for the initial nine months after the subject accident, i.e. until approximately two months after his second operation (April/May 2005) the fractured left tibia and fibula would have prevented Mr Jammal from working as a dancer, and would have reduced his ability to work as a comedian, although he could have continued some components of singing (sitting on a stool)." Dr Sekel opined the plaintiff would have been fit to return to most components of singing and working as a comedian, but may still have had some difficulty dancing. He also regarded the "unrelated old quadriceps tear" would also have impaired his ability to dance, and the quadriceps muscle remains mildly wasted. 229. Dr Sekel assessed the fractured distal tibia and fibula, with entry of fracture line into the tibial plafond, would result in 10% permanent loss of efficient use of the left lower limb. He found no evidence that the plaintiff sustained permanent loss of efficient use of any other part of his body during the accident of 18th October 2004. Meteorological Report 230. Exh D 15 was a certified extract from the official meteorological records of the Commonwealth of Australia for a period from 1st April 2004 to 31st October 2004. The report records inter alia rainfall for the period as it fell at Sydney Airport and Marrickville Golf Club. These disclose rain on eleven occasions in the period from when the tiles were laid in early 2004 until date of slipping incident in October 2004. THE CROSS CLAIM The Cross-Pleadings 231. A week or so after filing his defence, the defendant then filed a Statement of Cross-Claim against the cross-defendant. The Cross-Claimant relied upon the relevant background and aspects of the plaintiff's claim as to injury, loss and damage said to have been suffered by him. The Cross-Claimant then claimed as a fact it (the company) and the cross-defendant had entered a verbal agreement, whereby for consideration the Cross-defendant leased two front rooms of the relevant premises in or about February. At about the same time the cross-claimant consented to the cross-defendant's proposal to renovate the two leased from rooms at the surgery and the front of the premises contingent upon the cross-defendant paying all expenses incurred, which happened. The renovation program ran from approximately February to April 2004 and included inter alia the tiling of the front path, steps and veranda. It is alleged the cross-defendant personally purchased and arranged for the laying of the tiles without the involvement of the cross-claimant. The Cross-claimant asserts that any injury, loss or damage that the Plaintiff may have suffered was caused by the cross-defendant. It relies upon the particulars of negligence asserted by the Plaintiff and added two of its own, including failure to ensure the purchased tiles were safe for use by patients and failure to install the tiles properly. It claimed indemnity and/or contribution together with interest and costs, including the costs of the cross claim. 232. The cross defendant filed its defence at the end of October 2008. He mirrored the defendant's attitude to the original statement of claim filed by the plaintiff. He admitted leasing the two rooms, and the renovation arrangements. The cross-defendant admitted personally purchasing and arranging for the laying of the tiles, but denied that he did so without the involvement of the cross claimant. It is the cross-defendant's plea that the cross-claimant approved the tiles to be used in the renovation prior to his arranging for the tiles to be laid. He denies any injury that may have been suffered by the defendant was caused by his negligence. Indeed he denies any negligence. He denies the cross-claimant is entitled to any relief. 233. Alternatively, if there be any loss or damage it is a case of contributory negligence by the cross claimant. He relies on all the particulars of negligence pleaded by the plaintiff. The cross-claimant goes further, he says the cross-claimant has failed to plead that the risk of the plaintiff falling on wet tiles was an obvious risk, such that the plaintiff is presumed to have been aware of it, and in those circumstances the defendant did not owe a duty of care to warn of the risk. That being so, the cross-claimant has failed to properly plead his defence to the plaintiff's statement of claim The Cross-Claimant's evidence 234. About October 2003, a physiotherapist, practising part-time from the cross-claimant's (here after the defendant's) surgery premises, had determined on a career change. He introduced the defendant to Ali Jadid, the cross defendant, also a physiotherapist. The cross defendant leased a room at the front of the surgery premises and took over the physiotherapy practice of his predecessor. 235. Before the cross-defendant moved in he wanted to do some renovations to the premises in early 2004. This included tiling of the front balcony, the front stairs and pathway, painting of the two rooms he was leasing for his practice and the reception room as well. The tiling work was done either towards the end of 2003 or sometime in 2004. That work was arranged by the cross defendant. The defendant played no part in any decision as to the tiles to be used. The Cross-Defendant's case 236. Mr Hourigan, counsel for the cross-defendant obtained evidence from the defendant that he had not contributed financially in any way to the tiling on the stairs and pathway. So far as he could tell the width and depth of stairs had not changed in any way as a result of the upgrade. Prior to the upgrade there had been cracks in the pathway, and a level of slight soil contamination, which inferentially were no longer there upon completion of the task. Ali Jadid's Evidence 237. Circa January-February 2004 the cross-defendant took over an informal lease to the front of the defendant's premises, for the purpose of conducting a physiotherapy practice. Rent was paid to the defendant. As part of his relationship and practice he undertook some upgrading work in and about the surgery. This included painting and some rendering. He also undertook some tiling work in relation to the entry path and stairs to the surgery premises. The changes undertaken were of a cosmetic kind. The arrangement came about as a consequence of a verbal agreement between the cross-defendant and the defendant, basically to do as he (the cross-defendant) pleased, so long as he accepted full liability for all installation and upgrading costs. 238. As best the cross-defendant remembers there was a great deal of chewing gum and one or two step treads missing from some stairs and the entry to the pathway near the front fence had a ledge broken off the entire width of the path. 239. The cross-defendant selected the tiles. It came down to one of two colours. He took a sample of the chosen tile to the defendant for approval, which was forthcoming. The defendant was not fussy about the colour, so the cross-defendant selected the colour as well as the tile. The tiles were purchased from HB Home Improvement, a tile shop in Merrylands. They were a Spanish tile "Allegreros pizzeria oxidot". The cross-defendant also purchased tiling work spacers and tiling adhesive material, although from another supplier. In addition to the tiles he bought 15 step treads – which I understand to be the grooves and ridges on the nose of each step. It would seem 5 were allocated to the nose of each step. 240. When purchasing the tiles the cross-defendant advised the salesperson the tiles required were of outdoor quality and had to be suitable for a doctor's practice with heavy traffic. He was given some advice from the consultant, and as a result of the advice purchased the tiles referred to above. More than one consultant recommended the purchased tile as a suitable outdoor tile. The cross-defendant also received some help and advice from an ex-tiler. 241. Most of the work was done after hours, usually on a Saturday afternoon or a Sunday. The cross-defendant settled upon an ex-tiler who did most of the precision work, while the cross-defendant was involved in the labouring process. After the tiling had been completed, the cross-defendant sought approval from the defendant as to the completed tiling work. While he cannot recall the exact words, the effect of them was that the defendant did approve of the work done. Cross-Defendant's Medicals. 242. The cross-defendant relied upon the medical reports coming from Associate Professor Robert Oakeshott, and Dr Richard Sekel served in the defendant's case. Additionally, the cross defendant served further reports as set out below. 243. De Victor Tadros, Physician and Surgeon dated 15th November 1999. At that time Dr Tadros noted the plaintiff to be suffering from peptic ulser disease, a respiratory allergy (made worse by his substandard, humid, dark and mouldy accommodation). Doctor also noted the plaintiff's wife was suffering from cervical (?) and lumbo sacral disc disease and an anxiety-depressive disorder. 244. Dr Brian Harrisberg – Ophthalmic Surgeon who reported to Dr Tadros on the plaintiff's eye condition on 1st November 2002. The plaintiff appears to have normal vision in the right eye, but difficulties with the left. His left eye vision was 6/21, there was venous stasis retinopathy in the left eye. Equatorial haemorrhages, vascular tortuosity and cystoid macular oedema was also noted. At that point there had been no identifiable causes for the vein occlusion. Doctor recommended a small macular grid would benefit the left side macula by reducing the oedema. It was planned to do this "in the near future." 245. The North Sydney Orthopaedic & Sports Medicine Centre appears to have a number of campuses. Dr Seamus Dalton, a consultant in rehabilitation medicine is attached to the Sports Medicine campus at 272 Pacific Hwy Crows Nest. His report dated 28th May was based upon a review of the plaintiff on 14th April 2009. At that time the plaintiff complained the injuries occasioned on 18th October 2004 aggravated previous injuries to back, right shoulder and neck resulting from the earlier fall at home. 246. The plaintiff's present complaints to Dr Dalton in April 2009 indicated his main complaint was ongoing pain in his left lower leg and his inability to walk. The pain in his left shin is constant and can affect him at night. There was numbness in the leg. It was painful to get out of bed to go the bathroom. He needs assistance to rise from bed or from the ground. When he is sitting the leg pain is not too bad, but he is unable to walk without a stick even to the bathroom. 247. His back aches with prolonged sitting or standing; he prefers to sit in his electric recliner chair. He needs Valium to sleep because of back pain. His neck is painful to a lesser degree, with the pain radiating across the top of his right shoulder and down the arm to the elbow. His neck is asymptomatic at rest during the day, but the symptoms are active when he uses his walking stick. He cannot elevate his right arm fully without pain. The plaintiff was using a number of medications for pain relief including Zydol SR, Brufen, Panadol, Panadeine Forte. 248. Dr Dalton noted the plaintiff was seen to move his head and neck quite freely without apparent pain or difficulty, and elevate his right hand to the horizontal without any pain or guarding. Dr Dalton opined the plaintiff was overweight and deconditioned. The plaintiff walked with a single walking stick, holding his left leg stiffly , claimed he was unable to walk on heels and tip-toe. 249. Movement of the cervical spine were symmetrically reduced with marked stiffness limiting extension and lateral flexion. Mild stiffness limited forward flexion. Rotation was symmetrical at 45 to either side. Examination of the left shoulder revealed 115 of forward elevation limited by pain. There was mild loss of external rotation in the abducted position with complaint of pain at the end-range. Right shoulder movement was limited by guarding and a tendency to self-limit. Under direct examination active flexion was only possible to 50 with abduction of only 40, whereas during interview he was noted to have far freer movement. External rotation of the arm was resisted in the abducted position, and complaint of pain the right shoulder with passive flexion and extension at the right elbow. Assessment in Dr Dalton's view was hampered by the plaintiff's clear tendency to self-limit. There was "give way" weakness on manual muscle testing of all muscle groups in his right shoulder and elbow. 250. Lumbar flexion was limited to 20stiffness, pain and guarding and there was marked stiffness limiting lateral flexion and extension of his lumbar spine. All movements were symmetrical. He needed his wife's assistance when reclining onto and removing himself from the examination couch. He needed her to lift his legs up to the couch. He was unable to lie supine with legs extended, requiring the bed head raised. His right straight leg raised was limited to 40 by hamstring tightness and a complaint of back pain. His left straight leg raise was 35-40 limited by back pain with considerable guarding and pain behaviours evident. 251. Passive rotation and flexion at right hip limited by stiffness with less than 20 of external rotation associated with back pain. Left thigh circumference was 3cm less than the right, left calf was half a centimetre less than right. Range of motion at right knee was 0-140 flexion; while the left knee was 0-90. He claimed that he was unable to extend his knee against gravity but when attempting to do so there was no visible contraction of the quadriceps muscle. However, when the knee was manually lifted to examine the leg, he was able to hold the left foot off the couch demonstrating antigravity power in the leg. 252. Examination was hampered by considerable pain behaviour whenever the lower left leg and ankle were its focus. Right ankle motion was limited by calf tightness to 0 dorsiflexion and 40 plantar flexion. Subtalar motion was limited by stiffness. Left ankle dorsiflexion was 0, and 15 plantar flexion. Movements were limited by stiffness, calf tightness and pain behaviours and guarding. There was a 20cm surgical scar over the anterior aspect of the left lower leg and ankle with a 13cm scar over the fibula and 2-3cm scar over the medial malleolus. Right knee reflex was reduced, right ankle reflex intact; left knee and ankle reflexes were largely absent. 253. There was reported reduced light touch sensation through left lower limb in a non-determatomal distribution; mild hypoesthesia over the left thigh with dense hypoesthesia over the entire lower leg and dorsum of the foot. Yet he remained ticklish under the sole of the foot. 254. The plaintiff needed his wife's assistance in turning over while on the examination couch. The lumbar region examination revealed diffuse tenderness over the entire lumbar region with overt pain behaviours evident. When alighting from the couch the plaintiff was able to take two steps without the walking stick, apparently weight bearing for that short distance. 255. It was Dr Dalton's opinion that the plaintiff displayed a number of non-organic clinical signs. Significant superimposed pain and illness behaviour was apparent with inconsistencies evident particularly with regard to mobility of neck and right shoulder. 256. There was complaint of pain wherever he was touched and stated that his right leg had become so painful because he weight-bears on that side. 257. The investigation arising from various CT scans, MRIs and reports from other experts continued to reveal the symptomatology earlier referred to in those reports. Dr Dalton had access to reports from Dr Kassar, and Dr Crooks on the right shoulder that I don't recall being referred to by other doctors. The report principally relied upon appears to be that of Dr Medhat Guirgis I have earlier reviewed. There were reports from Dr Mellick, Dr Bentivogilio and Dr Dyball apparently in reporting in relation to the fall in 2000. Those reports will be reviewed shortly. Dr Dalton's Diagnosis 258. Dr Dalton diagnoses fractures to the left distal tibia and fibula, the latter failed union and required revision via internal fixation with a tibial nail and bone grafting. Dr Dalton assesses the fractures progressed to full union. 259. He notes a quadriceps tendon tear was identified at the second admission to hospital, but the plaintiff discharged himself prior to submitting to repair surgery. Dr Dalton notes there are not medical notes indicating any injuries sustained to neck, shoulder or back as a result of the October 2004 slip. 260. Dr Dalton's view was the clinical assessment he attempted was hampered by considerable pain and abnormal illness behaviour. A significant number of inconsistencies and non-organic clinical signs were evident during the assessment; reported disabilities were inconsistent with object findings made by the doctor; there was significant exaggeration and embellishment of symptoms and disabilities. These were demonstrated by inconsistencies present during examination. Included among these inconsistencies were cervical and right shoulder movement clearly apparent, yet denied on examination. Dr Dalton could find absolutely no medical evidence to support the claim the current neck and shoulder symptoms are causally related to the October 2004 slip injury. 261. As to the lumbar spine, Dr Dalton's view was there was evidence of degenerative disc disease with acquired and congenital spinal canal stenosis at the L3/4 and L4/5 levels. These changes he found were long standing and constitutional and degenerative in origin. Doctor found the claimed symptoms relating to the lumbar spine were consistent with the changes, but there had been no material exacerbation or acceleration of the lumbar spine condition arising out of the October 2004 slip. The degenerative lumbar disc disease with secondary spinal canal stenosis may be contributing to the reported back pain. 262. Dr Dalton's opinion in respect of the left leg is more conservative than it otherwise may have been as consequence of the plaintiff's hampering of the examination referred to above. Dr Dalton was satisfied there was restricted dorsiflexion of both ankles, which appears to reflect tightness in the calf muscles. At the left ankle there was significant loss of plantar flexion which may well be a direct result of his fractured ankles and complications arising form it. There was moderate restriction of flexion of the left knee and wasting of muscles of the left thigh. Whether this is a consequence of the quadriceps tendon tear is unclear. Meaningful assessment of the extensor muscle function had been hampered by the plaintiff's inconsistent responses during examination. 263. Likewise, meaningful assessment of the plaintiff's true right upper limb function is hampered by his abnormal illness behaviour. 264. It was doctor Dalton's opinion that the only disabilities causally related to the October 2004 slip are those relating to the fractures of the left ankle. This injury could well have resulted in residual muscle wasting, particular in the light of revision surgery and additional bone grafting. Dr Dalton diagnoses what he describes as Abnormal Illness Behaviour and functional overlay. These he says explain the claimed disabilities including the inability to weight bear without a walking stick. 265. Dr Dalton is unable to determine from the medical reports whether the quadriceps tendon tear is a partial or significant one. Nor does Dr Dalton appear to sheet this injury's cause to the October 2004 slip. He says it appears to have been a pre-existing condition not causally related to the subject slip. 266. As to medical treatment arising from the October 2004 slip, Dr Dalton regarded the plaintiff as benefiting from an exercise program, to assist with weight loss, general mobility and some strengthening exercises for the lower limb. Dr Dalton rejected any need for a walking stick noting appropriate exercise would achieve a greater level of mobility independence. 267. Dr Dalton regarded the only physical restrictions attributable to the injuries sustained in October as mild wasting of the muscles of the left calf, restricted mobility in the ankle and subtalar joint and some pain and stiffness with sustained or prolonged weight-bearing through his left leg. None of the other physical complaints, he said, could be directly or indirectly attributed to injuries sustained at that time. 268. Dr Dalton's view is that the plaintiff was facing minimal impact upon his chosen profession of professional singer. Any impairment would have arisen from stiffness in the ankle and pain associated with weight bearing but would not have impacted upon his ability to return to singing. 269. Dr Dalton rejected any need for domestic or household assistance as a result of injuries sustained on 18th October 2004. Dr Dalton based this finding upon deconditioning, dependant behaviour and other physical complaints not associated with the October 2004 slip. The finding was also based upon Dr Dalton's opinion there was considerable exaggeration and embellishment of the physical complaints and disabilities. 270. Dr Dalton regarded the permanent disability based upon an intra-articular fracture without displacement as being an invalid method of assessment of permanent disability – that is an assessment based upon diagnosis. Assessing impairment based upon loss of range of motion also presents problems because of the plaintiff's presentation at consultation. On a basis of 15 of plantar flexion at the left ankle and 0 of dorsiflexion in both ankles then that would qualify as mild loss of ankle motion, giving an impairment rating of 3% whole person impairment. To that Dr Dalton would add 1% whole person impairment for loss of hind foot motion, giving a combined value of 4% for whole person impairment arising from the fractures. Assessment on the anatomic method yielded a 3% whole person impairment loss according to Dr Dalton. Dr John Bentivoglio's Report 271. Dr John Bentivoglio, an orthopaedic surgeon, medically reviewed the plaintiff for Abbot Tout, solicitors for the defendant in respect of the 2nd January 2000 slip. Dr Bentivoglio listed the current symptoms as including low back pain which radiates down his right lower limb to the knee region. Back and leg symptoms are of equal severity. Sitting and standing causes him equal amount of discomfort. The plaintiff said he felt there had been no improvement in the back symptoms in recent times. 272. There was decreased range of movement present in his neck region as a result of pain – particularly rotation to the right causes his neck symptoms to worsen. At rest he feels quite comfortable. He also has pain radiating down his right upper limb to the elbow region. The pain also radiates to the interscapular region. Again the plaintiff felt there had been no improvement in his neck symptoms in recent times. 273. The plaintiff complained of continuing to experience pain in his right shoulder region and felt his shoulder tended to swell. There was decreased strength in the shoulder. The shoulder symptoms were worse at night. Again he felt there had been no improvement in the shoulder symptoms in recent times. 274. He was experiencing continual pain present in his right little finger, particularly over the radial aspect. It was made worse with activity. He felt it tended to swell and he had discomfort present in all little finger joints. There was decreased strength in the hand as a result of the finger's ongoing symptoms. Again, he felt there had been no improvement in recent times. 275. The plaintiff told Dr Bentivoglio he did little in the way of household duties. Nor at that time had he driven a car recently. 276. The plaintiff's reported symptoms did not live up to Dr Bentivoglio's findings upon examination of the back, neck, right shoulder and right little finger. 277. Dr Bentivoglio gave his diagnosis and opinion relating individually to the various areas of the body. As to the back, he found the plaintiff had aggravated some pre-existing degenerative changes present in the back as a result of the January 2000 injury. Doctor found the plaintiff exaggerated his complaints, including claimed weakness in right lower limb, during the examination. 278. As to the neck he found his ongoing complaints were exaggerations. As to the right shoulder, doctor's opinion was there had been no damage to the rotator cuff tendons and no signs of any impingement syndrome. As to the right little finger, doctor found the plaintiff to have suffered soft tissue injury from which he had completely recovered. There were no signs of ongoing disability. Dr Ross Mellick's Report 279. Dr Ross Mellick, a consultant neurologist also prepared a report for Abbot Tout Solicitors dated 21st January 2002. At that time the plaintiff's current complaints were constant pain in the neck at the midline in the upper cervical region. There was constant pain in the outer aspect of the right upper arm, the region of the right shoulder joint and the upper part of the right shoulder in its lateral half. There was back pain in the lower thoracic and upper lumbar region. This pain was not constant but occurred daily and lasted between two and three hours. There was complaint of pain the right leg extending from the knee upwards lasting between 1½ to 2 hours. It was described as being inside. There was no associated numbness or tingling involving the right extremity. There were 10 episodes of fainting, the first being the fall in January 2000. None of the episodes was associated with tongue biting or incontinence, nor was there any aura preceding any of them. The falls had occurred in circumstances where the plaintiff fell either onto a bed or into a chair. 280. Dr Mellick had regard to X-rays of the right 5th finger, an MRI scan of the right shoulder, another of the lumbar spine, and the descriptions accompanying them. He also examined the plaintiff. 281. Dr Mellick devoted a significant portion of his report to a statement of his opinion. Doctor noted the history given to him relating to the occurrence of the January 2000 fall, namely that it was a sudden fall associated with some 10 other fainting attacks that occurred subsequently, differed from histories given to other professionals. There was also a difference in the recollection pattern, recollection of events subsequent to the fainting came to the plaintiff in hospital, rather than being retained from the time of their occurrence at the scene. 282. Doctor noted inconsistencies and contradictions between claimed symptoms and his findings on examination or observation. Doctor Mellick was left with the opinion that what remained identified after exaggeration and contradiction were excluded were age-related degenerative changes in the lumbar region. His opinion was the MRI features described in the right shoulder were not necessarily of traumatic origin. A feature noted on the surface of the supraspinatus tendon he also thought may be an age related change. Doctor thought any pain suffered by the plaintiff, in close temporal proximity to the January fall, may have been of soft tissue origin. Doctor saw no signs of reflex sympathetic dystrophy. 283. Doctor Mellick was invited to critique other medical reports that the plaintiff may have been relying upon at that time. In my view the outcome of this case will not depend upon critiques made by Dr Mellick of other specialist reports and I put them to one side. 284. Dr K.H. Dyball is a psychiatrist. He also saw the plaintiff at the request of Abbott Tout. Solicitors.. He described the interview with the plaintiff as "a somewhat dramatic one" when his "behaviour had a somewhat theatrical flavour to it". Dr Dyball wrote "Assessing him from a psychiatric point of view is however very much dependant on how disabled he is, for it is his statement that he is so physically disabled that, in effect, he is a complete invalid and that because of this he gets distressed and upset, becomes irritable and is later sorry for it…. From a psychiatric point of view on the history as given he suffers an adjustment disorder with anxiety and depressive features through rather more anxiety than depression." SUBMISSIONS Plaintiff's Submissions – Duty of Care and Foreseeability. 285. The relationship between Plaintiff and Defendant was such that the defendant owed the plaintiff a duty of care, a proposition that the Defendant conceded in submissions. Given the nature of the business being conducted from the premises a large proportion of those entering would not be fit or able-bodied. Such a proposition must be regarded as being reasonably foreseeable. This case does not fall within the "occupier & invitee" cases, but rather attracts the higher standard, namely "an obligation to take reasonable care to prevent damage from unusual danger of which it knew or ought to have known". 286. It was submitted the defendant, with respect to his patients, is in an unequal relationship with the patient, and is obliged to maintain a standard of care relatively higher than might be expected of an occupier of other retail premises. No authority for any of the propositions expressed here is cited. 287. I do not understand the nature of the inequality of the relationship that throws this additional burden of responsibility upon the defendant. It is said to flow from a claimed imbalance of "power" with the greater power favouring the doctor. Employers, superiors in employment, teachers and parents all hold obvious power advantages over employees, inferiors in employment, students and children. But I have difficulty identifying the power imbalance a doctor holds over his patient – at least as the patient is making his way to the surgery. Nor do I accept as a proposition of universal application that any power imbalance a doctor may hold within his consulting rooms transfers higher obligations upon him in respect of his passageways and steps than "might be expected of an occupier of other retail premises." 288. It was submitted the duty of care is to be determined by considering and balancing the magnitude of a foreseeable risk against the degree of probability of its occurrence. He argued, even a remote risk, one that is extremely unlikely to occur, can nevertheless be foreseeable. The plaintiff's counsel conceded it must be foreseeable in a meaningful and practical way. It was argued the foreseeable risk of slipping and falling leading to injury arose as a result of renovation of the pathway and the installation of new and different tiles. It was argued any reasonable person would or ought to foresee that new tiles are capable of presenting a danger after rain when they become wet and more slippery. Why the "newness of the tiles" rather than their construction and composition should be capable of presenting the danger was not explained, other than a passing comparison of the tiles in the evidence of the defendant noted above. I note the evidence did not involve itself with any critical comparison between the old tiles and the new tiles. Nor do I understand the plaintiff to be saying the replacement tiles were more dangerous then tiles previously installed. He argues the very fact of replacing tiles, of itself, raises the issue of whether the replacement tile is capable of presenting a danger when wet. [It is a matter that appears to have been considered at purchase – and at installation. The issue of slipperiness was not established by the testing because it did not consider the nose tiles.] 289. Plaintiff submitted it was reasonably foreseeable the new (and untested) tiles could be dangerous to patients entering the premises. (I am unsure what is meant by "untested". If counsel means untested by years of patients, tradesmen and the like passing over them, that certainly appears to be the evidence. But I fail to see its application to the case. If he means untested in a laboratory in respect of mud and water prior to being placed on the market there is no evidence in support of the need for such a test – and some likelihood in reality of the opposite. If he means there was a duty of the installer to "test" the product once laid on the path by hosing it and putting some dirt on it and then using various forms of footwear on it – that would go to some other form of failure which has not been pleaded. Nor would it be part of the foreseeability issue.) 290. The plaintiff submitted "if the path was prone to be dirty or 'grimy' those circumstances could predictably combine with residue of rain making the surface muddy and more dangerous" particularly to less able bodied individuals. Apart from the plaintiff's claim that he slipped on mud (to which I must necessarily return) and an observation of Hugh McMullen, who conducted the slip resistance measurements, of slight soil contamination on the entrance path and landing at top of stairs, there is no evidence of whether or not the step concerned was prone to be dirty or 'grimy' or had mud upon its surface. Such evidence as there is, at best is inconclusive. As to the presence of mud – I reiterate that I accept the plaintiff's evidence that didn't see anything dangerous. Such a finding is consistent with there being no mud on the second step. 291. There is a submission that the tiles and nosings of the steps were found to be moderately too highly slippery when wet. That submission misstates Mr Grieve's finding. It is to be remembered the nosings were not included in any testing – a matter I will deal with shortly. 292. Counsel submitted the non-slip qualities of the tiles used when renovation was undertaken were matters a reasonable man would consider in choosing tiles for the job. It was argued the defendant was not entitled to rely upon an accident or incident free history since 1993 because new tiles had been laid on the old ones. It is a submission that attracts competing tensions – the renovations were undertaken to make an upgrade – presumably without sacrificing health or safety issues. On the other hand those responsible for the upgrading needed to concern themselves afresh with appropriate qualities for outdoor tiles for the particular premises they were occupying. Mr Hanrahan submitted an accident free history is but one factor to be considered among other circumstances. 293. Plaintiff's counsel argued it was foreseeable that if the doctor didn't take any interest in, or have any time to consider, or want to spend any money on the choice, style design and safety features of any tiles to be newly laid at the entrance of this premises, that he could as a consequence be responsible for the tiles not having a suitable non-slip surface to cope with wet conditions. This submission appears predicated upon a favourable finding for the Plaintiff that the tiles failed to have a suitable non-slip surface to cope with wet conditions. Given that finding the proposition appears to be the defendant is negligent in not being personally involved in selection of the tiles. That was not a particular of negligence pleaded. It would be unfair to permit the plaintiff to advance it as such now. Even if I were to permit it to be advanced, in the circumstances of this case it assumes a knowledge of tile quality, and relevant safety standards that are likely to be outside the defendant's work of life experience. He was always going to rely upon the expertise of some other person or persons in any tile selection and installation. His acceptance of the Cross-defendant's offer was always predicated upon an implied understanding or condition that any tiles selected would be suitable for the task and properly installed. Causation of injury – the Plaintiff's Submissions. 294. Mr Hanrahan relied upon a combination of factors contributing to the plaintiff's injury including: + The descent from the steps was less secure than the ascent; and the perceived risk of falling greater. + The steps were likely to have been wet from rain and more slippery than usual. He relied upon Mr Grieve's opinion of a moderate risk of slipping on the middle step by presence of water. + Lack of any supporting structure, for example a handrail, thereby increasing the risk of falling. + The entrance way conditions in wet whether were likely to increase anxiety and therefore danger to patients not steady on their feet. + The condition of the steps was characterised by an underlying defect of construction in tread on the second step, and risers. + The general standard of maintenance of the entranceway was poor or ignored by the defendant. + Causations dealt with in the Plaintiff's written submissions "G" "H" and "I" were not pleaded – nor is any existing head of claimed negligence capable of embracing them. It would be unfair to the defendant to consider them. Further if I were to consider them, I would have difficulty finding any of them had played any causative role in the plaintiff's fall. 295. In supplementary submissions Mr Hanrahan argued "The plaintiff does not allege that he slipped simply as a result of 'mud on the stairs' but rather due to a combination of factors.. The plaintiff alleges that the defendant failed to provide a safe means of access in order to exit the premises. The plaintiff alleges that he slipped as a result of the slipperiness of the steps which were wet and muddy at the time of the plaintiff's fall. In addition the plaintiff alleges a 'hidden' danger in the irregularity of the steps… and the absence of any other supports or coverings designed to avoid a foreseeable risk." Breach of Duty – the Plaintiff's Submissions 296. The claimed breach of duty, it was argued, arose from the original (2008) construction and maintenance thereafter, in that the relevant stairs failed to provide a safe means of exit, and were not maintained in a safe condition. The absence of maintenance also contributed to the lack of safety. 297. Further, it was said that prior to the renovations the defendant had not considered in advance any safety issues; failed to recognise a patient leaving surgery could be in a position of peril, was unaware of tiles which were made to minimise slipping in rain; means of providing non-slip surfaces to tiles; the need to warn of slippery surfaces in the event of rain; and the need to test the steps and tiles to ensure they were functioning effectively (safely). Intertwined with these claimed absences of awareness, was a claim the doctor had failed to take measures appropriate to address or remedy any of these issues. 298. Finally, it was argued the defendant failed to conduct a safety audit at the time of the renovations, which failure resulted in a failure to provide handrails, make arrangements for assistance by staff, or recognise the steps were not constructed in accordance with current standards. Damages – the Plaintiff's submissions 299. Mr Hanrahan submitted I should find a non-economic loss as being in the region of 30- 40% of a most extreme case. At the time of his submission, that loss sat in a monetary range of $103,500 to $180,000. For past economic loss a sum was sought in the order of $39,988p.a. until the plaintiff turned sixty five; that totalled $199,940 sought from the loss of earning per contract with Serenade Restaurant. It is conceded this sum is subject to some reduction for vicissitudes of life. Given his age, there is no claim for future economic loss. 300. In supplementary submissions Mr Hanrahan submitted the "egg shell skull"principle is sufficiently wide to cover the plaintiff's situation. His vulnerability lead him to experience post-traumatic depression and/or anxiety. The Year 2000 injuries were less debilitating. 301. Past Out of Pocket Expenses are calculated at $19,117. Future out-of-pocket expenses are claimed at $55,919. These include allowances for GP consultations, orthopaedic consultations, medications, physiotherapy, walking aides, counselling, bathroom modifications, car modifications or scooter, recliner chair suitable bed. The plaintiff also claims costs for personal and domestic care of $228,574. Included in that sum is a figure of $62,830 for past care and $164,644 for on-going care. The Defendant's Submissions Duty of Care: 302. The defendant submitted the relevant duty of care is set out in Ridis v Strata Plan 10308 per McColl JA: The duty of care owed by an occupier of premises to entrants is to take such care as is reasonable in the circumstances. Prima facie, an occupier has not breached that duty of care by not inspecting their premises for the purpose of discovering unknown and unsuspected defects. 303. Mr Cutler argued the defendant's duty should be assessed in the context of an 11year history of no complaints about the subject steps, particularly over a period of some six months since the new tiles were laid. (I have dealt with the competing tensions raised by that submission earlier. In any event the entrance way and relevant stairs were probably subject to observation by the defendant not infrequently on those occasions when he used this entrance way in the course of his practice. If there be a breach of duty, it does not seem to me to be occasioned by inadequate inspection of the pathway or steps.) 304. Foreseeability argued Mr Cutler should also be assessed in the light of an eleven year history of no accidents from any source including the complainant. In support of that proposition the defence argued the absence of any complaint from the plaintiff should take on a particular significance because the plaintiff had been prone to fall over for no apparent or explicable reason. 305. It would seem, however, the defendant's knowledge of that particular fact is not established on the evidence at least to the extent that other doctors may have been told – but if the defendant held such a belief, I would have thought it could then be said he should have foreseen such a possibility occurring on the pathway. In any event there are two determinative matters – firstly, I regard the evidence relied upon by the defendant in this submission as arising from an overstatement of his frailty by the plaintiff. Secondly, this fall was not one that fell into this category. It is whether there is a foreseeability issue in relation to the causation of the particular injury before the court that I have focused upon. Causation – the Defendant's submissions 306. The defendant submitted the injury sustained was not caused or materially contributed to by any breach of duty owed by the defendant to the plaintiff. 307. Frankly that question cannot be answered until the causation of the injury is determined. 308. Mr Cutler argued the plaintiff presented and conducted his case on the basis that he slipped and fell on the second or middle of three steps leading from the defendant's premises, and that his perceived reason for the slip and resultant fall was that the step was wet and slippery from rain water, and possibly spots of mud upon it. 309. A considerable portion of Mr Cutler's written submissions focused upon the expert evidence of Mr Grieve. It will be obvious from what is written below that I have determined, in part consistent with defence counsel's submissions, that Mr Grieve's report is of little assistance to the Plaintiff's case. In those circumstances, I do not detail his submission on that topic here. I should note, in the light of further submissions by the plaintiff, that I formed no view of the reliability of Mr Grieve or his report – or indeed of the plaintiff upon the basis of any fee arrangement negotiated between the plaintiff and his legal team. 310. In respect of quality of tile and workmanship, Mr Cutler relied upon evidence from the defendant and cross-defendant. The defendant played no role in the purchase laying or choice of tiles; he neither saw nor heard of any problem or complaint about the tiles or workmanship; he noticed no difference in slipperiness between old and new tiles; he understood the cross defendant would, and the fact is that he did, use a qualified tradesperson and chose appropriate tiles; the depth or width of the stairs and the appearance looks as it did in the past but for the tiles; the cross-defendant sought advice from a tile consultant, the selected tiles were recommended for outdoor use; the new tiles were laid upon the old ones, and nose tiles with ridges and grooves were fitted to the outer edge of each step as an extra precaution were some of the matters that he highlighted. 311. The submission accurately reflects the state of the evidence. The defendant's disengagement from involvement in the selection of tiles and their installation as pathway and stairs does not absolve him from ultimate responsibility to the many persons who used them to access the surgery or building. Further, the primary responsibility for the safe passage of those using the stairs lay upon the owner of the premises, not a lessee of rooms within the building situate on grounds owned by him. Damages – the defendant's submissions 312. The defendant reviews in detail the evidence of injury and lingering disability occasioned in the January 2000 fall. I have extensively reviewed the evidence relating to injury and lingering disability from both falls above. I do not detail the defendant's synopsis of either here. 313. The defendant relies upon his experts' evidence to the effect that the plaintiff has made a good recovery from the fracture to his left tibia and fibula. They have united soundly. As to the plaintiff's other complaints including neck, shoulder and arms, the defendant position is they are not related in any way to the fall on 18th October. It is also argued the plaintiff is fit for his pre-accident level of work so far as the effects of the 2004 fall are concerned. 314. The defence argue the injuries to neck, right shoulder and back were pre-existing injuries and have not been permanently aggravated by the 2004 fall. My understanding is the defence argue the pre-existing injuries are degenerative changes that would have occurred within the plaintiff's normal aging process and/or result solely from the 2000 slipping incident. 315. The defence argue Dr Harvey-Sutton's report constitutes an overstatement of the plaintiff's injuries and their effect upon him. She includes consideration of the pre-existing injuries in her assessments. The history she has taken appears to be factually incorrect and at variance with the plaintiff's evidence. Mr Cutler noted in his written submissions: "…for some reason not made entirely clear, [she] seeks to amend her opinion of 14 May 2008 that the 'symptomatology in his neck, back and right shoulder were temporary aggravations of the regions' to say that any injury to neck, back and right shoulder are in fact permanent aggravations." 316. The defence position is that Dr Harvey-Sutton's opinion should be treated with caution as she has an erroneous history in relation to the plaintiff's pre-accident medical and work situation. The defence argue that the Court would prefer its experts instead. Non –economic loss – the Defendant's submissions 317. The defence concede the plaintiff suffered a dual fracture to the lower left leg. It argues that is the only injury sustained. Alternatively, if there were aggravation of pre-existing injury or conditions, such aggravation was of a temporary nature. It is argued the plaintiff's fractures had soundly united in normal alignment without risk of arthritis and the plaintiff had made a good recovery. My understanding is the defence ague for a basis most favourable to it. It submits the severity of the plaintiff's non-economic loss does not reach the 15% threshold of a most extreme case, with the result he would not be entitled to any award under this head. Economic Loss – the Defendant's submissions 318. The Defendant submitted the only tax return filed by the plaintiff since 2000 was for the 2002-3 tax year. Since then he has not worked. He relies upon a claimed written offer of employment set out in Exc C, dated 16 October 2004. The author of the document and offer has not been called in evidence. There are problems with its contents and form. While the defendant stops short of submitting I should reject it, he does argue I should regard it as suspicious. Although not verbalised in submissions, I understand the submission to be that I would not regard the document as capable of satisfying the Court on the balances that there was a genuine offer of employment. The Plaintiff was also critical of the DVD (Exh E) as being inconsistent with the Plaintiff's evidence before McLoughlin DCJ in March 2003. It was argued the plaintiff had not suffered any economic loss since his fall in October 2004. Domestic Assistance – defendant's submissions 319. Mr Cutler highlighted a number of what I understand to be prior inconsistent statements in the evidence as to who was performing the household duties at varying dates through from October 2004 through to July 2009. Mr Cutler relied upon Professor Oakeshott's opinion, and that of other defence experts that the plaintiff has no need for household assistance of any kind. It was a defence argument that the Court could not ignore that the plaintiff was on a carer's pension for looking after his wife which continued until May 2006. Out of Pocket Expenses – the Defence Submission 320. A concession is made that the defence is liable for out of pockets, but only insofar as they arise from the fractured lower left leg. Future Treatment – Defence submissions 321. The defence argue, put at its highest a modest buffer might be awarded. Submissions on the Cross-Claim Submissions of the Cross – Claimant 322. The defendant submits that in the event a verdict is given for the plaintiff, it is entitled to indemnity or contribution by the cross-defendant upon the basis of the cross-defendant's selection and purchase of the tiles and his arranging for and involvement in the installation of them. The argument hinges upon a finding that the plaintiff's fall and injury were caused by the slippery condition of the middle step brought about by the presence of rainwater in circumstances where the plaintiff's duty of care had been breached. In such a situation, it was argued, a finding that the cross-defendant had breached his duty of care in failing to choose appropriate tiles for the intended purpose and/or in failing to properly apply those tiles. Submissions of the Cross-Defendant 323. The Cross Defendant denies any negligence as raised between Plaintiff and defendant, and denies any negligence by the cross-defendant in the purchase and/or installation of the tiles. It is the cross-defendant's case that the tiles purchased and laid by the cross-defendant were not inherently or inappropriately slippery. It was argued that a finding of slipperiness was not available on the evidence. It was argued the preponderance of evidence confirms the cause of slipping to have been mud on the tiles. To the extent, it was argued that there was any requirement to monitor the presence of mud, that was a matter for the Defendant as owner and occupier, not the cross-defendant. 324. It was argued the evidence favoured a finding the Defendant personally approved the new tiles selected and consented to their being used on the pathway, steps and landing. The cross-defendant was given recommendations for an anti-slip tile in circumstances where it is simply not possible to be guaranteed a "non-slip" tile. 325. It was argued, and I accept that the laying out of the tiles was done with the assistance of an experienced associate. The submission continued, there is no, or at least no persuasive suggestion that the manner of the laying of the tiles contributed to the plaintiff's slipping on them. 326. The cross-defendant aligned himself with the defendant in respect of submissions regarding liability and damages. Resolution 327. The burden of proving the defendant's negligence rests upon the plaintiff. That burden is satisfied on the balances, that is, that it is more probable than not that the defendant was negligent. Whether negligence is established can only be determined after the causation of the initial injury to the plaintiff is established. Once the cause of the injury is established questions of foreseeability and responsibility can then be determined. 328. I am satisfied the pathway from the street to the defendant's surgery had been newly tiled some 6 or so months before. I am satisfied the new tiles were laid over the old tiles. Put another way, I am satisfied there was no reconstruction of the layout of the pathway and stairs. I am satisfied that pathway and stairs layout was essentially the same as it had been ever since the defendant commenced his practice at the relevant premises. I am satisfied the plaintiff had used the pathway and steps when the old tiles were there frequently. I am satisfied he had used the pathway and steps when after the new tiles were laid and had noticed no substantial difference. I am satisfied he had not complained to the defendant at any previous time about the state of the pathway or stairs. State of the steps – mud or no mud 329. The Plaintiff gave evidence there were three steps leading from the veranda of the defendant's premises. There was, he said, no sign, no handrail, or any covering preventing rain from striking the steps (T.02/03/09 p.23/15 – 20). When he came to the surgery on 16th October 2004 he did not notice anything as he came through the front gate. (T. 02/03/09 p.18/20-23). As he left the surgery, "for sure" he looked at the steps. His evidence is he slipped on the second of three steps. (T. 02/03/09 p.20/10) The plaintiff when asked why he slipped didn't know, because of mud and water the tile was too slippy, very soft, too fine and the mud. However, when he was looking at the steps he didn't see anything. (T.02/03/09 p.19/21-25). In cross-examination to Mr Cutler (T.04/03/09 p. 128) the plaintiff said, "The tiles were soft and on it there were mud and water." 330. In re-examination the Plaintiff was asked where did he see the mud. He replied, "It's on the passage way that lead to Dr Tadros's surgery. Not on the steps." (T. 04/03/09 p.155). 331. I am satisfied the Plaintiff's evidence that he saw nothing as he came through the front gate is correct. Had mud been on the pathway or step it would have been there to have been noticed by the plaintiff as he was coming in. For whatever reason he was at the doctor's it is likely his stay in the circumstances was short – perhaps minutes before he was told to return later. I am satisfied the Plaintiff's initial response given in evidence as to the circumstances when he was leaving the surgery that " he looked at the steps he didn't see anything dangerous" is correct. Again, if mud was on the step it was there to be seen by him at that point in time. 332. Further, there is no mention made in para 6 of the Statement of Claim of slipping on any mud. Dr Tadros's notes on 18/10/08 the plaintiff "slipped on the surgery steps (rain wet steps)". The first mention of mud does not come until eight days later when the plaintiff tells Dr Douaihy he "..slipped on some mud and wet surface of the steps." 333. The onus of proving mud on the steps belongs to the plaintiff. Five factors are important in determining whether he has succeeded in proving the presence of mud on the step. Firstly when he looked at the steps on the way in and on the way out he did not see anything. Secondly in re-examination he locates mud "not on the step" but on the "passageway". Thirdly Dr Tadros, whose note is the only contemporaneous note, makes no mention of mud, only a "rain wet step". Fourthly the plaintiff does not mention mud being present until some eight days later to his then treating doctor. In those circumstances he has no doubt been thinking about how the injury occurred and has rationalised the presence of mud must have been how it was he came to slip. Finally there is no allegation in the plaintiff's pleadings of any presence of mud. Even if the mud was on the passageway as distinct from the stairs as the plaintiff appears to have said in re-examination, it could not have played any part in the causation of the injury. 334. The plaintiff is unable to supply a reason why he slipped other than his reliance upon the mud and water. For reasons I have given I am not satisfied there was any mud present on the steps. As noted above I am satisfied the step was wet. That fact alone does not prove negligence. This is not a case where the doctrine of res ipsa loquitur applies. Exhibit D 25 – The Opinion of a Building and Civil Engineer 335. The Plaintiff tendered, over objection, an expert report (Annexure G of Exh D) of Anthony Grieve, a building and civil engineer. If there be any doubt as to whether the report was formally tendered and received into evidence, I should indicate that I have acted upon it upon the basis that any oversight to formally tender the document is a technical rather than a evidentiary issue. No one is unfairly prejudiced by its admission. For my purposes I have treated it as evidence in the plaintiff's case. 336. I should deal here with two matters raised by Mr Hourigan in his written submissions on this topic. The person conducting the slip test is a technician rather than an expert. I have accepted his measurements – where he has expressed an opinion I have disregarded it. In those circumstances there was no need for him to acknowledge the Expert Witness Code of Conduct. As to the presence of mud – it's presence is a question of fact for me. Assuming mud was on the step – I am satisfied that would only act to aggravate any slipperiness of the step. In the circumstances the test conducted, as it was in the absence of mud, may have favoured the defence, but did not prejudice the cross-defendant who was always able to argue a greater likelihood of slipperiness where the surface slipped upon was mud and not tile. 337. Mr Grieve appears to have been retained on 24th January 2008, more than 3 years after the plaintiff slipped. Mr Grieve inspected the site on 1 February 2008 when he took five photographs (Exh A and Exh D) of the stairs and adjacent portion of the pathway. For reasons I give shortly, it is unlikely he took photograph A (assuming his evidence is correct that he took it) on the same day as he took the photographs in Exh D – 25. 338. He, in turn, sought testing and measurements to be undertaken of the tiles and stairs by Industrial Research Services – a Division of Manufacturing & Materials Technology of C.S.I.R.O. A Mr Hugh McMullen of those Services conducted the measurements on 24th April 2008, 3½ years after the slip. 339. It is clear Mr Grieve took his history from the Statement of Claim and Statement of Particulars dated 17 October 2007. He also had two photographs taken "shortly after" the incident. One has the number: 7 6: 17; the other has writing "PHOTOS TAKEN BY PLAINTIFF SOON AFTER THE ACCIDENT". The defence argue these photographs have not been authenticated. My understanding of the plaintiff's case is he took the photographs shortly after the slip, but there is no sworn evidence to that effect. I am satisfied the photographs are of the defendant's steps. Initially, I thought the photograph may have been taken at the same time or near a time when photographs relied upon by Mr Grieve were taken – see Exh D-25. However, I am satisfied the walking stick appearing in photograph Exh A differs from the walking stick in photograph 4 appearing in Annexure A of Exh D –25. That suggests there is general uncertainty as to who took what photographs, and when they were taken. 340. Nonetheless there are markings, probably water-drainage markings, on the two outside perpendicular full sized tiles on the first step up from the path that correspond with the marks to be seen on the same tiles in photograph 4 of Mr Grieve's report. One of the markings to which I refer is to be found immediately below the Plaintiff's left foot. The other is the "Eiffel Tower" shaped marking on the face of the full tile second tile to the right of the plaintiff's left foot. 341. However, I have no sworn evidence who took the photograph, when it was taken, or the circumstances existing at the time it was taken. Nor are the words on the second photograph authenticated by any evidence. The writing is unlikely to be the Plaintiff's. Firstly, he claims a level of illiteracy. Secondly, it is unlikely he would refer to himself as "the Plaintiff". I accept what Mr Grieve observed about the photographs – that is that there was no non-skid strip on the middle step. But in the absence of evidence as to the time and context in which the photographs were taken, it is impossible for me to give the absence of a non-skid strip any context. Mr Grieve's conclusion that there was no non-skid strips installed when the plaintiff slipped is unsupported by any other material, including history, in his report. In those circumstances the absence of a non-skid strip is not proved on the balance of probabilities. Equally the presence of a non-skid strip at the time of the plaintiff's fall has not been proved. The evidence is neutral on the presence or absence of a non-skid strip. 342. It was Mr Grieve's opinion that there were irregularities in the goings and risers of the three steps leading from the veranda to the pathway leading to the gate. Riser mm Going mm Bottom step 147 248 Middle step 180 273 Top step 183 - 343. Mr Grieve noted the risers vary by up to 36mm and the going vary by 25mm. The Building Code of Australia 2007 requires that a stairway must have goings and risers that are constant throughout in one flight. The irregularity shown in the chart, he opined, is a significant non-compliance with the code and could result in a pedestrian missing his step because of the irregularity of the stair dimensions. He notes the requirement that going and risers are constant throughout the building codes has existed since 1973. Those codes are of relevance to designers and builders involved in construction since 1973. Of course, there is every reason to believe these stairs were constructed well before 1973. While I accept these stairs do not comply with current building codes or standards, that fact alone would not necessarily mean they are unsafe. In particular, the plaintiff had left the top step to place his foot on the middle step. The riser distance was 183mm and the going surface was 273mm on the middle step. To that point in his downward journey the plaintiff had not experienced any of the claimed irregularities. It is clear they played no part in his fall. 344. It should be remembered the Plaintiff had been travelling along the relevant pathway and mounting the relevant steps for more than a decade. He was a frequent visitor to the defendant's surgery, no doubt in all sorts of weather. He was familiar with the width, depth and height of each step. There is no evidence to suggest, or reason to believe that any of those dimensions had changed as a consequence of the renovations that were conducted on the pathway and stairs. During the period when the renovation was completed and the falling incident, the defendant had several more experiences of the stairs. There is nothing falling from his evidence of any perceived danger arising to him from the identical goings and risings he had been used to for years. 345. Another requirement of the Building Code of Australia 2007 is that a stairway must have treads which have a non-slip finish or an adequate non-skid strip near the edge of nosings…". Mr Grieve, by referring to the slip test conducted by Hugh McMullan on 24th April 2008, came to a view the "tread of the middle stair did not have a non-slip finish." When Slip Resistance Measurement of the middle stair tile (excluding the nosing tile) was tested it gave a British Pendulum Number (BPN) of the Wet Pendulum Test of 36. As I understand his report, the risk of slipping when water-wet was moderate. That is the equivalent of a 3 out of 5 where 1 is "very low" and 5 is "very high". The difficulty with that evidence is that the slip measurement was done across the step, which is 90 to the direction of the plaintiff's slip, which was from rear to lip of step. There may be circumstances where that would not be a matter of great moment. However, in this case it takes no account of the effect, if any, of the grooves and ridges nose tile found on the outer lip of the step. The other aspect of the measurement not canvassed in evidence is the width of the surface of the measuring instrument as it crosses the tile surface. It is a matter of basic physics that the greater the area of contact the greater the capacity for friction – and hence the greater the capacity for resistance to slip. 346. It is incumbent upon those installing the pathway to eliminate or neutralise risk to others using the stairs. The nosing tiles forming the lip of the steps is a clear attempt to neutralise any risk of slipping that may occur as a consequence of contact with the tile during the wet. The ridges of the nosing tile do their work not unlike the treads upon a tyre by guaranteeing a firm or water-free surface in the wet for the weight of any load transferred onto them. As noted above the 2007 Building Code requires nosing tiles to contribute to the non-slip protection measures in-built into each step. The failure of the plaintiff's experts to include the nosing tiles in their tests deprives the installer (or in this case the defendant) of any consideration of the measures taken to avoid such risk as may be occasioned by the unabsorbed surface water remaining on the tile. 347. These nosing tiles on each of the three steps as shown photograph 3, and the last photograph of Exh D have lateral ridges and grooving. For reasons just given the ridges and grooving I have assumed to be an anti-slip device – yet Mr Grieve does not address the effect, beneficial or otherwise in his report. The wet pendulum test was conducted laterally across a tile – it cannot be seen to encompass the groove and ridges of the nosing tiles. If, one accepts the complainant slipped on this step, in all likelihood his foot would have travelled across this nosing tile. Indeed, it is difficult to resist the inference that some portion of the sole of the plaintiff's footwear would have been in contact with the ridges and grooves almost immediately upon his placing his foot on the second step. An assessment of the safety of the step should have included some consideration of the part the nosing tile played, if any, in the overall assessment of the safety of the step. My sense is Mr Grieve's report as to the state of the second step – which is the crucial step on the Plaintiff's case – is seriously incomplete. If the cause of injury relies upon the state of the step, including the nosing tile, the inadequacy of the surface testing may be fatal to proving fault lies with the plaintiff. 348. Further, I accept the defence submission, at least to the extent that had the wet test been conducted on the middle strip in the same fashion as done on the top step one could not rule out, given the same quality tiles and nosings were being tested, that the result would have been the same or at least very similar – that is 49.3. a reading inside the BPN mean of 45, reflecting a low risk of slipping when wet. 349. Finally, it should be noted that black adhesive non-slip strips were added to the access to the stairs from the surgery door to the top step, across each step and the first point of landing on the tile pathway since the plaintiff's fall. The person responsible for their being put in place is not in evidence. The time when; the circumstances in which and the reasons for this happening were not disclosed in evidence. In the circumstances I am not inclined, nor, in fairness was I requested to regard it as an admission by deed against either the defendant or cross-defendant. Dealing with the Plaintiff's Submissions 350. I am comfortably satisfied the plaintiff left the doctors surgery door, walked across the veranda and made to descend the three steps leading away from the veranda to the pathway below. I am satisfied it was raining lightly as he began to step from the veranda onto the stairs. I am satisfied the second step was exposed to the elements and was wet. I am satisfied the plaintiff saw that it was wet before he stepped from the veranda onto that step. I am satisfied he did not see any danger, including the presence of any mud, on the stairs. I accept a film of slight soil contamination may have settled on the stairs, consistent with the observations of Hugh McMullan. When the rain began this slight soil contamination was capable of being washed away as the rain continued. There is no evidence to suggest a slight soil contamination presented any danger to the plaintiff. On the evidence before me I am unable to say whether it was still present or not, because I am unaware how much rain had fallen. Slight soil contamination is not relied upon in the pleadings – nor in the evidence of the plaintiff. 351. In the Plaintiff's submissions on causation it was argued descent from the steps was less secure than assent. My own view is that is a matter of foreseeability rather than causation. Likewise the plaintiff submission that the perceived risk of fall is greater when descending is a foreseeability issue. The increased slipperiness of steps after rain is also a foreseeability issue. The causation question is whether the plaintiff has proved the response to these issues by the defendant was inadequate. In the light of more than a decade of relatively heavy traffic during surgery hours without incident, my view is no greater response was required by the defendant when the cross-defendant was undertaking the cosmetic upgrading. 352. The plaintiff relied upon Mr Grieve's opinion of moderate risk of slipping on the middle step in the presence of water. By virtue of my findings that reliance is no longer open to the plaintiff. It was argued the wet whether conditions at the entrance way was likely to increase anxiety and therefore danger to patients unsteady on their feet. The nexus between anxiety and increased danger for persons unsteady on their feet has not been proved in evidence, and is not a matter of common experience. 353. A claimed underlying defect of construction in steps and risers was relied upon as a cause of injury. There is no evidence the width or length of the tread of the second step or the riser variation from the Australian building standards played any part in the plaintiff's fall. He does not attribute his fall to either claimed flaw. His evidence is he slipped. There is no evidence to suggest had the step been consistent with the relevant regulations, the difference would have averted, prevented, or ameliorated the slip. The plaintiff had been using these steps for many years in the configuration he encountered on 18th October 2004. There is no other record of his difficulty in negotiating them. 354. The general standard of maintenance of the passageway and stairs was relied upon as causing the plaintiff to slip. I accept in the past the entrance way was flawed as a consequence of maintenance issues – but it was for that reason the cross defendant sought to renovate and upgrade it. At the time of the plaintiff's falling, the evidence as to the standard of maintenance of the entranceway is non-existent. There is no evidence that maintenance of the entranceway played any part in the plaintiff's fall. 355. In his pleadings the Plaintiff nominated various areas of negligence which presuppose various causations of injury. Included among them was a claimed failure to warn of the slippery floor surface in the event of rain. While I am satisfied there was no warning sign in those terms, the need for one was not established by the evidence. 356. Further, I am satisfied the plaintiff saw the wet step – knew from his past experience that wet steps could be hazardous. There is no evidence from the plaintiff suggesting he would have changed anything he did had there been a sign warning him of a slippery surface. Indeed, given my view of Mr Grieve's report I should note I have not been satisfied the plaintiff has proved the step surface was slippery. 357. It was alleged there was a failure to alleviate a slipping hazard. Again I note the plaintiff has failed to prove the step surface was slippery. It was also alleged there was a failure to guard against a high gloss tile becoming wet and slippery in rain. The plaintiff has failed to prove the tiles constituting the step were "high gloss" or had become slippery in the rain. 358. The plaintiff pleaded and argued there was a failure to provide sufficient or additional non-slip surfaces upon the tiles. It is a real possibility (although given the state of the evidence not a probability) that there was no black adhesive non-slip tape affixed to the surface of the second step at the time of the incident. However, given there has been a failure to measure properly the effects of the ridges and troughs nose tiles the plaintiff has failed to prove there was a need for such additional non-slip measures to be taken. 359. It was also alleged there was a failure to provide handrails. It is true no handrails were provided. I am satisfied the half wall at the top step level was within easy reach for any person ascending to or descending from the top step of the veranda who wish to steady himself/herself as he/she climbed to or from the third step to the second step (see photographs 1 and 2 of Mr Grieve's Report Exh D 25). Moreover, the defendant's patients, suppliers and others had used this pathway and stair combination for more than a decade without the need for a handrail. The plaintiff himself had been using the pathway and stairs for as long as the doctor had been resident at these premises without any prior need for a handrail. In those circumstances the need for a handrail has not been proved. Verdict 360. It follows the plaintiff has failed to prove negligence by the defendant. It follows there must be a verdict and judgment for the defendant. It also follows the cross-claim is to be dismissed. There must be a verdict and judgment for the cross-defendant. The plaintiff will pay the defendant's costs. The cross-claimant will pay the cross-defendant costs. Leave will be given on terms for the parties to notify my Associate in respect of any order to vary the cost orders I have proposed. 361. In the event it should be determined on appeal that the evidence established liability by the defendant, then I make the following observations in respect of damages for the plaintiff. I would find the plaintiff's non-economic loss as being 20% of a most extreme case. 362. As to economic loss, that was predicated upon Exh C. I regard Exh C as having been typed in 2005. Both areas were the document provides notation for the date the document was signed by "employer" and "employee" are dated 2005. Raid Alsad was not called to verify the document was his document – nor was he called to give supportive evidence of the details of the so-called employment contract. As I pointed out during the hearing there were other serious issues with this document. While one cannot rule out the possibility of a written contract in situations were the entertainer and local restaurant agree to have weekly performance by the entertainer, the stronger likelihood is the gigs are given on oral arrangement. I accept where paid managers are involved the situation may be more formal, but that is not this case. I would set a figure of about $7000 for economic loss based upon a proposition that some few engagements may well have come the plaintiff's way. 363. Past out of pocket expenses were calculated at $19,117. I have assumed that figure is not disputed. Future out of pockets expenses depends upon the view I take of the plaintiff's recovery. My view is that his evidence of injuries arising from the October 2004 fall are well overstated. Further, I have spent sometime in this judgment reviewing his pre October 2004 medical situation. I am also of a view those injuries were overstated. 364. In any event the ailments he now complains of were subject to equally extravagant descriptions pre-October 2004. I would determine a recovery period for him from the injuries he received in the October 2004 fall of 9 months to a year. I regard such needs as he has for continued medical intervention, aids, modifications to house, or any other personal need arising from this matter as being more than adequately covered by a buffer of $25,000. 365. If damages were to be awarded, I would award to the cross claimant an indemnity or contribution of 45% of the damages ordered to be paid by the cross defendant. ORDERS 1.Verdict and judgment for the defendant. 2. Verdict and judgment for the cross-defendant. 3. The plaintiff will pay the defendant's costs. 4. The cross-claimant will pay the cross-defendant's costs 5. Leave is given for the parties to apply to my Associate within 21 days for a hearing date to vary any cost order I have made. I give notice to the parties that I will be perfecting these orders in 28 days time. 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.