New South Wales Supreme Court CITATION : Leslie Colin Casey v Amanda Dawn Robinson & Anor [2003] NSWSC 1155 HEARING DATE(S) : 25/11/03 - 27/11/03 JUDGMENT DATE : 9 December 2003 JUDGMENT OF : Cripps AJ DECISION : (i) There will be a verdict and judgment for the plaintiff ; (ii) The defendants to pay the plaintiff's costs. CATCHWORDS : NEGLIGENCE - duty of care - defendants/lessor's obligation to inform plaintiff/lessee of maintenance and/or upgrade works in progress to the leased property - defendants/lessor knew of plaintiff's regular use of the leased 52 acre property for motorbike riding - - DAMAGES - Civil Liability Act 2002 (NSW) ss 13, 15, regarding damages for non-economic loss and gratuitous services LEGISLATION CITED : Civil Liability Act 2002 Leslie Colin Casey - Plaintiff PARTIES : Amanda Dawn Robinson - 1st Defendant GIO Insurance - 2nd Defendant FILE NUMBER(S) : SC 20183/02 COUNSEL : B J Gross QC and H Bauer - Plaintiff G Parker - 1st and 2nd Defendants SOLICITORS : Carol & O'Dea - Plaintiff Ebsworth & Ebsworth - 1st and 2nd Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIPPS AJ 9 December 2003 20183/02 – Leslie Colin Casey v Amanda Dawn Robinson & Anor JUDGMENT 1 HIS HONOUR: On 24 November 1999 the plaintiff was injured when he fell from a motorbike while test riding it along a motorbike track. 2 The accident took place on a property occupied by the plaintiff and owned by the first named defendant. It was alleged that the second named defendant (the father of the first named defendant) was acting on behalf of the first named defendant when he dug up a portion of the motorcycle track in circumstances where the plaintiff was unaware of it until it was too late to avoid an accident. 3 The second named defendant Mr Jeffrey died in September 2003 and, by consent GIO General Limited has become the second named defendant as the public liability insurer of the first named defendant and the late Mr Jeffrey. 4 The plaintiff has claimed in negligence. He has also alleged, as against the first named defendant, breach of covenant for quiet enjoyment but that claim was abandoned at the hearing. 5 The plaintiff, his wife and two sons went into occupation of part of the first named defendant's fifty-two acre property at Collombatti in or about September 1998. It would seem that the plaintiff's occupancy was regulated by a written lease agreement which has been lost and no attempt has been made to describe the nature of the plaintiff's occupancy other than that he was a tenant of approximately two acres of the property. Included in his tenancy was a house in which the family lived and a driveway leading from Collombatti Road to the house. The driveway was approximately 150 metres long. After leaving Collombatti Road it travelled from north to south to the house in a gentle uphill gradient curving slightly to the west. 6 In or about October 1998 the Kempsey Shire Council was upgrading Colombatti Road. At the request of the late Mr Jeffrey it upgraded the driveway. When doing so it also made two dish-drains on the eastern side of the drive designed to carry water from the road. This case is concerned with the dish drain closest to Collombatti Road. When made it was approximately 10 metres long, 150mm deep and about 100 to 150mm wide. 7 The plaintiff and his two sons were trail bike enthusiasts. The evidence of the plaintiff's eldest son Timothy, which I accept, was that after the drive had been formed and the drains made, the late Mr Jeffrey told them they were not to ride their trail bikes on the newly made gravel drive but that if they wished they could ride their bikes down the western side of the drive, cross the drive near the entrance to Collombatti Road, and return on the eastern side. 8 The case for the plaintiff is that over a period between October 1998 and November 1999 the track (or loop as it came to be called) was used by the plaintiff, his sons and their friends. Over time and well before November 1999 the drain was filled in. It was compacted by the bike riders and was level with the loop. The loop was about the width of a tyre of a trail bike. 9 In November 1999 the loop (except where it crossed the drive) ran through grass upwards of a metre high with the result that any changes in the loop would not have been apparent to a bike rider until he or she came across it. 10 The plaintiff's case is that on the afternoon of 24 November 1999 and after he had serviced a motorbike belonging to his son-in-law he took it for a test drive. He went down the western side of the drive along the bike track, crossed over the drive near the gate and had covered about twenty metres on the eastern side when the front wheel of the bike reared up, threw him to the ground and fell on him. At the time of the accident he was travelling at about thirty kilometres per hour. 11 The plaintiff claims that the drain was dug up by the late Mr Jeffrey and no warning of it was given by him. 12 In his statement of defence the late Mr Jeffrey admitted he did not warn or advise the plaintiff "concerning the existence and location of the trench, but says that the plaintiff having resided at the premises since the construction of the premises in 1998, was aware of its existence and did not require any warning or advice as to its existence". He did not admit that he had dug the drain but did not, in terms, deny it. 13 A statement made by the late Mr Jeffrey on 19 July 2002 was tendered in evidence. In it he referred to the fact that he paid the Council $200 to re-form the drive and make the drains. He said he was not present at the time of the accident to the plaintiff but heard of it from Mrs Casey later. He said that Mrs Casey said that the plaintiff was trying to do a wheel-stand and that the accident was her fault because she had made him give up drinking. Mrs Casey has given evidence denying she made this statement to the late Mr Jeffrey and, as will be seen, I accept her evidence. 14 The late Mr Jeffrey was not clear about what he referred to as the "time frame" of the events. He said, however, that he recalled that the plaintiff resumed work collecting seeds in the summer following the incident which I think is unlikely bearing in mind the medial evidence as to the severity of the plaintiff's injury. He denies digging up the drain. 15 I think it appropriate at this time to mention that the credit of the plaintiff came under attack. I record that generally speaking I have little confidence in the accuracy of his testimony unless it is corroborated by evidence that I accept. I accept the evidence of the plaintiff's wife and his son Timothy. Timothy has said that the late Mr Jeffrey told them that they were not to ride their trail bikes on the newly made gravel drive but they could ride them on the side of the gravel driveway which they did. 16 The plaintiff was taken to hospital immediately after the accident and his wife went with him. Mrs Casey and Timothy Casey have given evidence that the day following the accident they inspected the site and saw that the drain, where it bisected the loop, had been dug up and was about 150mm deep and about 150mm wide over a length of a little over 2 metres. Later they said they noticed that the drain had been filled in and compacted. At the time of the accident the grass was, as I have said, upwards of a metre above the ground and the track of the loop was not much wider than the wheel of a trail bike. 17 Mr Parker on behalf of the defendants submits I could not be satisfied on the evidence that the late Mr Jeffrey dug up the track. As I have said he was the father of the first named defendant who owned the property. He attended the property regularly and did work from time to time. When he did he lived in a caravan on the property. 18 Timothy Casey said that he had ridden around the loop during the weekend preceding 24 November 1999 and there had been no work done to it at that time. I have already recorded my conclusion that the drain was dug up and a short time after the plaintiff's accident it was filled in. It appears common ground between the parties that relations between Mr Jeffrey on the one hand and the plaintiff and his family on the other were not good. 19 It is submitted that I cannot infer that the late Mr Jeffrey dug up the drain or filled it in. Nobody has claimed to have seen him doing either. The plaintiff has given a version of a telephone conversation with the late Mr Jeffrey from which an admission by conduct was said to arise. As I have said the plaintiff's credit worthiness was bruised in the proceedings and had that alleged conversation been the only connection between Mr Jeffrey and the digging up and refilling up of the drain I doubt I would have accepted the plaintiff's case. However both the plaintiff's son Timothy and his wife Mrs Casey deposed to work undertaken by the late Mr Jeffrey in and around the property. Accepting, as I do, that the drain was dug up and shortly after the plaintiff's accident filled in and that that work was not done by a member of the plaintiff's family who, it might be asked rhetorically, other than the late Mr Jeffrey was likely to have been responsible. With respect to the argument advanced by Mr Parker on behalf of the defendants I think it fanciful to conclude that it was just as likely that a trespasser had entered the property, dug the drain and filled it in. Accordingly I find the plaintiff has established that the defendants are liable in negligence because the late Mr Jeffrey caused the drain to be dug up without warning which resulted in the plaintiff's accident. 20 It has also been submitted on behalf of the defendant that even if I were of the opinion the late Mr Jeffrey was responsible for digging up and later filling in of the drain I would not find a verdict for the plaintiff because, it was submitted, the plaintiff by his own reckless conduct was the real cause of his injury. It was also submitted that I should find that the plaintiff was guilty of contributory negligence. 21 The plaintiff has said that he was testing the bike and travelling at about thirty kilometres per hour. He said he could not see a great deal ahead of him because of the long grass. However, in my opinion, it was reasonable for him to think that the track over which he and his sons had ridden over the past year was safe and that had any work been done on any part of it he would have been warned. Accordingly I reject the submission that the plaintiff was the cause of his own injuries. Furthermore in my opinion the defendants have not made out a case of contributory negligence. 22 A difficult issue in this case is the quantification of the plaintiff's damage and it was in this area that the plaintiff's credibility was attacked. 23 It is not disputed that as a result of this accident the plaintiff suffered a serious injury. The consequences of it are described in detail in the medical reports of the treating and examining doctors. No medical practitioners were called and I am bound to say some of what appears in their reports is a mystery to me. However it appears clear that he suffered a burst fracture of L1 and that the accident had exacerbated the consequence of a previous laminectomy at L4/5 and L5/S6 the plaintiff had in late 1987. In November 2000 Professor Ghabrial, his treating doctor performed a decompression of the T11/L2 vertebra with "instrumentation between T10 and L3 vertebrae using the CD system". The plaintiff was also examined by Dr Wolfenden who thought that he would not be able to return to work. In the course of the hearing Mr Gross QC for the plaintiff called for the report of the medical practitioner who examined the plaintiff on behalf of the defendant. Mr Parker objected to producing the document claiming legal professional privilege and that claim was accepted by Mr Gross. 24 I have concluded that as a consequence of the injury on 24 November 1999 the plaintiff will not be able to work for the rest of his life. The plaintiff was born on 21 August 1954. He was forty five at the date of his accident and is now aged forty nine. 25 The damages to which the plaintiff is entitled is regulated by the Civil Liability Act 2002 both as the cap for non-economic loss and the allowances that are permitted for gratuitous services. 26 I access the non-economic loss as being 55% of a most extreme case. 27 The plaintiff has claimed compensation for gratuitous attendant care services which he claims to have received and will continue to receive from his wife. There was some debate in the proceedings as to whether, for example, the plaintiff was entitled to compensation because he could no longer mow the lawn or undertake outdoor maintenance. The plaintiff has always lived in rented accommodation and accordingly ordinarily the landlord would attend to major maintenance matters. Although nothing much turns on it I am of the opinion that his inability to mow the lawn and the need to get another to do it would fall within the scope of s 15(1)(c) being "services that aim to alleviate the consequences of an injury". 28 s 15(2) of the Act provides: "No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: "(a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury". 29 Both sides have submitted lengthy reports from occupational therapists. However at the end of the day these reports are only helpful if the evidence supports the conclusions assumed by them. A great deal of what the plaintiff alleges he cannot do and which he claims has been done for him by his wife was being done for him prior to his accident and, I would infer, would have continued to have been provided to him had he not been injured. 30 Based on the report of Ms Tchan the plaintiff claimed an entitlement of 28 hours of care a week for the past and the future. The parties have agreed that the hourly rate for the past is $18 and for the future $19. The plaintiff no longer claims an entitlement to 28 hours care each week for the past and the future. He claims 14 hours. Even that, in my opinion, is too high. I would conclude that the plaintiff has made a case for gratuitous attendant care services and I would estimate it to be eight hours per week. This would mean that he is entitled to compensation for the past being eight hours per week at $18 per hour for 208 weeks - $29,952. And for the future being 8 hours per week at $19 per hour at an agreed life expectancy of 30.38 years and applying the 5% multiplier (822) - $124,944. 31 I record that, as is apparent from the above, that the plaintiff has justified a finding for the need for care in excess of 6 hours per week and that this will continue for the rest of his life. 32 Medical expenses are agreed at $6,791. Although not agreed I allow the plaintiff an additional $3,120 for pharmaceutical expenses incurred by him to date of trial. Based on the medical expenses over the past 208 weeks I award the plaintiff for the future an amount of $27,126 together with $12,330 (representing $15 per week). Furthermore I allow the plaintiff the sum of $9,999 being the home modification necessary as a result of his injuries. 33 I have already expressed the opinion that, conformably with the views of Dr Wolfenden and Professor Ghabrial I do not think the plaintiff will be able to work again by reason of the injury he sustained. However a significant difficulty with the plaintiff's case is that at least since 1987 he has been in receipt of a disability pension based on an injury he sustained in the 1980's and which resulted in a laminectomy in 1987. He was admitted to the Kempsey District Hospital and later the Hunter District Hospital, in 1995 for a period of nine days because of a flare-up of his back. It appears to be accepted that a person in receipt of a disability pension is entitled to earn $40 per week without disclosing it to the relevant authority. The plaintiff has given evidence that he earned considerably more than that and didn't disclose it. 34 The plaintiff has not lodged a tax return since 1987. He has produced almost no written material in support of his claim for economic loss. He has given evidence that he worked on and off as a mill-hand in timber companies in the local area and in particular for his brother in law Mr Batterson. The plaintiff alleges that had he not been injured he would have commenced full-time employment with Mr Batterson the proprietor of Batterson Saw Mills Pty Ltd and would have earned a gross wage of $534. 35 He produced a letter from his brother-in-law who, on 24 November 2002 wrote to the plaintiff's solicitor as follows: "Les Casey (the plaintiff) worked a couple of days a month for me in the year 1999. He was going to start as permanent in early February 2000. The time he did work we paid him a bit of cash and expenses. The company was more than happy with his work and he got on well with the other employees. Since his accident we have employed six new people. Casey's position would have been Friction and Multi-saw driver". 36 Later and in response to a further letter from the plaintiff's solicitors Mr Batterson said that had the plaintiff commenced work in 2000 he would have been in receipt of a gross wage of $534.10. Later still and in answer to a further query as to the nature of the work the plaintiff would have to have undertaken had he commenced work and whether his present injury would effect what he was required to do Mr Batterson wrote that the work involved "physical strength, stamina and manual handling skills" which would be beyond a person with a bad back. He concluded: "Through the many years I have been involved in the timber industry, it is my opinion that someone who has had a serious back injury is unable to work in a timber mill. They would not only do damage to themselves due to the amount of manual handling skills that are involved in all aspects of the mill but they could cause serious damage to others who work closely with them, as everyone is dependant on the other person to have the physical strength, stamina and manual handling skills to complete their job especially when working on the benches". 37 The plaintiff has given evidence without any supporting documentary material that in the two years prior to his accident he had collected seed from nearby farms during the summer months and sold it to a seed dealer. He said he received approximately $10,000 gross and his outgoings amounted to about $5,000. 38 If I understood Mr Gross' final submission he no longer maintains an argument that his client is entitled to be compensated upon the basis that but for the injury he would have been in constant future employment, earning $534 per week gross. Mr Gross has submitted on his behalf that but for the injury the plaintiff would have been earning approximately $180 per week net which he submits is a fair estimate of value to place on the plaintiff's pre-injury working ability and his capacity to exploit it. 39 The Civil Liability Act, in its application to this claim relevantly provides: "13(1) A Court cannot make an award for damages for future economic loss unless the claimant first satisfies the Court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury". 40 In support of his claim the plaintiff has relied on the evidence of Dr Wolfendon and Professor Ghabrial both of whom assumed that the plaintiff had recovered fully from his 1987 laminectomy. I would infer that neither were given a history of continuing disability payments and that the plaintiff had spent approximately nine days in Kempsey Hospital in 1985 as a result of a flare-up of his back. 41 On behalf of the defendant Mr Parker has submitted that the high water mark of the plaintiff's non-economic loss claim would be $40 per week for the future. It was submitted that, but for the injury that would have been the plaintiff's "most likely future circumstance". 42 Although the plaintiff produced no written material in support of his claim that he can no longer collect and sell seed, his seed collecting has been corroborated by his wife and Mr Jeffrey who thought he had returned to that work in the summer of 1999/2000. 43 Doing the best I can and having formed the opinion that the plaintiff had some work capacity prior to his injury on 24 November 1999 I estimate its value at $100 net per week. On that assumption I would access his past economic loss from 24/11/99 to 24/11/03 (208 weeks at $100 per week) at $20,800 which allowing 15% for vicissitudes totals $17,680. Upon the same assumptions I calculate his future economic loss being $100 per week which by application of the appropriate multiplier (5% multiplier 579) and less 15% for vicissitudes - $49,215. No claim is made for loss of superannuation benefits. 44 My conclusions are as follows: 1. Non-economic loss 55% of $384,500 $211,475.00 (being a most extreme case) Economic loss past $17,680.00 Future $49,215.00 2. Care Past $29,952.00 Future $124,944.00 3. Home modifications $9,999.00 4. Medical expenses (including pharmaceuticals) Past $9,911.00 Future $39,456.00 45 (i) There will be a verdict and judgment for the plaintiff in the sum of $492,632.00 (ii) The defendants to pay the plaintiff's costs. ********** - Last Modified: 12/12/2003 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.