New South Wales Court of Appeal CITATION: KAPPADOUKAS v FRANSEPP PTY LTD [2006] NSWCA 366 HEARING DATE(S): 27 April 2006 JUDGMENT DATE: 15 December 2006 JUDGMENT OF: Tobias JA at 1; Basten JA at 2; Rothman J at 34 DECISION: (i) Appeal allowed;; (ii) Judgment of Rein DCJ of 17 December 2004 be set aside;; (iii) Judgment for the plaintiff in the District Court in an amount of $341,168, such judgment to take effect from 17 December 2004;; (iv) The respondent to pay pre-judgment interest on half the amount of $100,000, at two percent per annum for seven and a half years, being an amount of $7,500;; (v) The respondent to pay the appellant's costs of and incidental to the appeal and the trial, as agreed or assessed;; (vi) The respondent to be granted an indemnity certificate pursuant to the terms of section 6 of the Suitors' Fund Act 1951 if otherwise entitled. CATCHWORDS: EVIDENCE – whether there were inconsistencies in the evidence – whether the trial judge failed to address the corroborative evidence – whether the trial judge failed to deal with probable scenarios that are consistent with all the evidence adduced - - CONTRIBUTORY NEGLIGENCE – whether plaintiff was 'careless' in going onto the first floor in the dark – whether such carelessness was a contributing factor to the accident - - DAMAGES – future economic loss – whether diminution in earning capacity has had and will continue to have an adverse effect on his actual earning which will result in economic loss – whether there should be an allowance for future domestic assistance LEGISLATION CITED: Uniform Civil Procedure Act 2005, s 101 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Fox v Percy (2003) 214 CLR 118 CASES CITED: Graham v Baker (1961) 106 CLR 340 Griffiths v Kerkemeyer (1977) 139 CLR 161 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 PARTIES: Anastasios Kappadoukas - Appellant Fransepp Pty Ltd - Respondent FILE NUMBER(S): CA 40025/05 COUNSEL: Ms S. Norton SC/Ms M. Fraser - Appellant Mr J.L. Sharpe - Respondent SOLICITORS: Peter Baker, Solicitor - Appellant Stacks/Goudkamp Pty Ltd - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 05898 of 1999 LOWER COURT JUDICIAL OFFICER: Rein DCJ LOWER COURT DATE OF DECISION: 17 December 2004 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40025/05 DC 05898/99 TOBIAS JA BASTEN JA ROTHMAN J 15 December 2006 Anastasios KAPPADOUKAS v FRANSEPP PTY LTD Judgment 1 TOBIAS JA: I agree with Rothman J. 2 BASTEN JA: As Rothman J explains, the plaintiff's injuries were undoubted as was the fact that they were caused by a significant fall. The question of liability, so far as relevant to the appeal, turned on the question whether the plaintiff fell off the top of the ladder or whether he had reached the first floor of the premises and fell through a hole in the floor. He gave evidence that he had stepped from the ladder to the first floor, taken two paces and found himself back on the ground floor. He landed on his right leg, and fell on to his right shoulder, causing the injuries to those parts of his body. 3 The plaintiff's account of the accident was supported by the only other person with him at the time, Mr Paul Curtis, who said that he was holding the ladder as the plaintiff climbed it. 4 The defendant's case was that the plaintiff never reached the first floor, but fell as he was climbing the ladder. The defendant's case rested, generally speaking, on the following propositions: (1) the only ladder on the premises was a stepladder which was not capable of being used as an extension ladder, as described by the plaintiff; (2) the ladder which was on the premises was seen by a builder, Mr Boghossian, who arrived whilst the plaintiff was still on the floor where he fell, as being an A-frame ladder lying on its side; (3) there was no plausible reason for the plaintiff to have climbed on to the first floor as the person who was intending to quote for the painting job had already decided that the renovations had not reached a stage which would allow him to provide a useful quotation; (4) the injuries suffered by the plaintiff were not consistent with him having fallen through the floor; (5) the plaintiff told the ambulance officers and, arguably, the triage nurse at Royal North Shore Hospital shortly after the accident, that he had fallen from a ladder. 5 There were a number of unsatisfactory aspects to the case, as presented, which did not make the task of the trial judge an easy one. Thus, evidence as to the kind of ladder available on the premises was largely restricted to descriptions given in Court, seven and a half years after the event, and a photograph of a ladder which was said to be at least similar to the one which may have been there on the evening in question. Further, the evidence of Mr Boghossian in relation to the ladder was by no means conclusive. He was called by the defendant, as its last witness. He did not give evidence about the ladder in chief, but he was asked, after he entered the building and saw the plaintiff on the floor whether he happened to look up and responded, "it was dark, mate, it was dark everywhere": Tcpt, p 235. The questions in relation to the ladder were asked by the trial judge during cross-examination. He said that it was lying on the floor when he saw it: Tcpt, p 237. Unfortunately, however, he was the last witness called and no one else gave evidence to that effect, nor was that evidence put to the plaintiff or any of his witnesses. 6 So far as the purpose of climbing the ladder is concerned, the contention was immaterial. It was not in dispute that the plaintiff did climb the ladder and the only possible purpose was to allow for a preliminary inspection of the premises which he and Mr Curtis might be invited to paint. That he did climb the ladder was unchallenged, as was his Honour's finding that the plaintiff went on to the premises with the knowledge and permission of the defendant "for a purpose connected with a possible quotation": Judgment at [48]. 7 The contention in relation to the plaintiff's injuries was primarily that, if he had fallen through the floor, he must have passed between two supporting beams which were half a metre apart. It was quite unlikely that he could have done that without suffering some form of injury at least to his upper body other than the injury to his shoulder. No such injuries were identified. That was certainly a matter which could have weighed against the plaintiff's case, although it was not listed by the trial judge as one of the matters which he considered undermined the plaintiff's case at [47]. 8 The strongest support for the defendant's case came from the history recorded by the ambulance officers and by the triage nurse at Royal North Shore Hospital, that the plaintiff said he had fallen from a ladder. The inference that the defendant sought to draw was that the story of falling through the floor was a later invention by the plaintiff. The plaintiff, on the other hand, noted that the history given to the ambulance officers must have been given at a time when the plaintiff was in considerable pain and apparently screaming, the plaintiff was a man who, although competent in English, had some limitation on his English language abilities and the ambulance officer was not a person who would have been interested in the precise details of the fall, or how it occurred. There was in truth nothing inconsistent between a history of climbing a ladder and falling and a history of climbing a ladder, stepping on to a floor and falling. Furthermore, the history of falling through a roof was in fact recorded by one of the staff at Royal North Shore Hospital on the same evening as the note by the triage nurse. This tended to contradict any inference of later invention. 9 Although these matters, and some others relied upon by the trial judge, were capable of undermining the plaintiff's case, the difficulty for the defendant lay in the evidence, not only of the plaintiff, and of Mr Curtis, but also the evidence of Mr Katsaounis, who also attended the premises immediately following the fall, and who gave evidence that he had spoken to the plaintiff while he was lying on the ground and the plaintiff had said to him (Tcpt, p 111): "I walk up, I climbed the ladder, I walk one step, it was masonite and I pass through." 10 This account, given by the plaintiff, was consistent with his evidence at Court, consistent with the evidence of Mr Curtis and consistent with one of the notes recorded at 8pm that evening at Royal North Shore Hospital. In addition, and importantly, Mr Katsaounis was not cross-examined on that evidence. 11 The trial judge could have rejected the evidence of Mr Curtis and Mr Katsaounis, on the key points which corroborated the plaintiff, but he did not. His Honour noted some inconsistencies between the plaintiff's witnesses, but he made no credibility finding adverse to Mr Curtis or Mr Katsaounis. The reasons for judgment omit direct reference to the evidence those witnesses gave which was supportive of the plaintiff's case. The passing references to the evidence of Mr Curtis do not confront this issue. 12 It follows that the trial judge has failed to address a significant part of the plaintiff's case, including the unchallenged corroborative evidence of Mr Katsaounis as to the account given by the plaintiff immediately after his fall. This involves appellable error and the judgment in favour of the defendant must be set aside. 13 The next question is whether the matter should be remitted for retrial or whether a finding as to liability can be made by this Court. If the trial judge had given any suggestion that he thought the evidence of Mr Curtis was unsatisfactory or might be subject to adverse findings as to credibility, it would be difficult to avoid the conclusion that a retrial, which would then occur some nine years after the date of the accident, would be necessary. However he gave no indication to that effect, a circumstance which, when taken together with the unchallenged evidence of Mr Katsaounis referred to above, allows this Court to act upon that testimony. The appropriate finding is that the plaintiff established on the balance of probabilities that he fell through the floor, in the manner he described. The trial judge appears to have accepted what was in effect an admission by the defendant that he knew that the plaintiff was "going to visit next door in connection with the work that the Plaintiff hoped he could quote on and perform": at [45]. At [48] he stated: "I find that the Plaintiff did go into the premises with the knowledge and permission of the Defendant for a purpose connected with a possible quotation being given by the Curtis and perhaps the Plaintiff." At the end of that paragraph his Honour said he was not persuaded that the plaintiff "did fall through the roof or that if he did that it was for a purpose connected with the giving of a quotation". The latter part of this statement could be read as contradictory of the passage set out above: the reconciliation is that his Honour may not have been affirmatively satisfied that it was the plaintiff who was intending to give the quotation, as opposed to Mr Curtis. However, on any view, the plaintiff accompanied Mr Curtis and, even if he were not intending to go into partnership with him to do the painting, he was assisting Mr Curtis, who did intend to seek the painting contract. 14 Having reached the conclusion that the plaintiff did not fall as he claimed, the trial judge nevertheless proceeded to deal with other issues "on the basis that the Plaintiff did proceed to the premises with the knowledge of the Defendant that he was doing so and with the knowledge that the upstairs floor was not safe to walk on because the floorboards were rotten, and that a ladder was present which went through the ceiling and that it was the state of the floorboards that caused the Plaintiff to fall": at [50]. 15 His Honour made a further finding that the defendant owed the plaintiff a duty of care to warn him as to the condition of the first floor, "because it would not be obvious to a painter on the upper level that the floorboards were not safe": at [51]. The following discussion as to the apportionment of liability involved at least the implicit finding that there was a breach of duty which materially contributed to the accident in a way sufficient to establish causation. 16 In dealing with the question of contributory negligence, his Honour stated, on the assumptions set out above at [14]: "I would regard the Plaintiff, however, as having been contributorily negligent in undertaking an inspection of the premises where there was no electric light, where he had to light a cigarette lighter in order to see, and where it was obvious that there was building work going on. It was argued that the absence of light and the fact that it was a building site was not causative of the fall because on the Plaintiff's case he fell through floorboards, the state of which he did not know. I think the answer is that had the Plaintiff had due regard for his own safety he would not have undertaken any inspection of the upstairs in such poor conditions, particularly given Curtis's evidence that it was clear that no quotation could be given. I would, on the assumption to which I have referred apportion liability as 70% to the Defendant and 30% contributory negligence to the Plaintiff, given that all of the details relevant to the lack of suitable conditions for inspection were known to the Defendant, but only some to the plaintiff." (at [51]) 17 The challenge to this finding was based on the proposition that the condition of the floorboards was in the nature of a "trap". Little was said by way of extrapolation in relation to this challenge. To label the condition of the premises a "trap" tends to blur into one concept a number of different factors. Matters which might properly be taken into account in assessing the care taken by the plaintiff for his own safety included the following: (a) the plaintiff was on the premises for his own purposes, which could not reasonably have progressed far at that time; (b) it was apparent that the premises involved a building site in the process of renovation; (c) the absence of lighting, making dangers difficulty to detect, was well known to the plaintiff. These factors were properly taken into account by the trial judge, giving rise to a conclusion which is well within a permissible range, given the evaluative nature of the judgment required. Any award of damages must therefore be reduced by 30%. 18 The next question is whether the plaintiff should succeed in his challenge to the finding of the trial judge, made on the basis that he might be in error as to liability, that there had been no loss of earning capacity resulting from the fall. I accept, as Rothman J has explained, that the evidence of Dr John Macarounas contained the following statement: "On 24 February 1997 I saw Mr Kappadoukas and found that his back had improved to the point where I advised him to begin searching for suitable duties. I gave him another 3 month sickness certificate which was to cover him until he found and became established in a new position." As the trial judge noted, Dr Macarounas was not required for cross-examination. 19 His Honour also noted evidence that the plaintiff had applied for a catering job at a club prior to his fall and referred to contemporaneous evidence which tended to support that claim. 20 With respect to the painting work, his Honour stated that there was "no evidence that the Plaintiff would be likely to have obtained any painting work but for the accident": at [99]. In relation to the catering work, his Honour stated at [99]: "It seems remarkable that the plaintiff would move from no work at all for five years (at least) to two jobs at once at precisely the time of the accident, and at a time when his doctor had certified him unfit for work, and according to Katsaounis he was in no fit state to work." 21 With respect, these findings tend to elide the distinction between the plaintiff's ability to work and the likelihood of him obtaining work. The fact that he claimed to have sought work in two areas is supportive of Dr Macarounas' statement that he was now fit to work, rather than the contrary. The fact that the doctor had certified him "unfit" was explained in the doctor's report, quoted above. The comments by Mr Katsaounis that he would not employ the plaintiff because he did not think him fit for work presumably relate to work in the building trade, Mr Katsaounis being a builder, which was not work which he claimed to be seeking. 22 The fact that the plaintiff had not worked for approximately five years from 1992 to 1997 was not unexplained. In 1993 he suffered a back injury, at a time when a daughter, who died in 1995, was also suffering deteriorating health. There was evidence that the death of his daughter in 1995 continued to affect him for some time. It was hardly remarkable that he was seeking work in 1997, but had not worked for five years, if there were explanations for his absence from the workplace, which had, by April 1997, resolved themselves. 23 His Honour found that the plaintiff had exaggerated his injuries, and in particular his state of depression, following the accident, but it does not follow from that finding that he had no earning capacity prior to the accident. Indeed, since the accident clearly increased his disabilities, the proper inference which might have been drawn from post-accident exaggeration was that he had residual earning capacity, but was unwilling or, for other reasons unrelated to the accident, unable to utilise it. 24 As Rothman J has demonstrated, he clearly had some level of earning capacity prior to the accident which has been permanently diminished as a result of the injuries suffered. 25 The real question, in my view, is whether the diminution in earning capacity has had and will continue to have an adverse effect on his actual earnings, and thus be productive of economic loss: see Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 4 (Deane, Dawson, Toohey and Gaudron JJ) and at 16 (McHugh J), referring to Graham v Baker (1961) 106 CLR 340 at 347. 26 The likelihood that the plaintiff might have obtained some painting work but for the accident, appears to have depended upon his relationship with Mr Curtis. His Honour appears to have accepted that Mr Curtis, who was not a professional painter but a general maintenance person, may well have expected to obtain painting work at the defendant's premises. There was evidence to support the conclusion, that had he done so, the plaintiff may have assisted him on a remunerative basis. Mr Curtis was not cross-examined to demonstrate that that was fanciful or unlikely. Accordingly, there was evidence to support the view that the plaintiff might have obtained work assisting Mr Curtis, but for the accident. Beyond that, the likelihood of on-going work was largely speculative. Nevertheless, the evidence of the plaintiff and of Dr Macarounas was that he was fit for and was seeking work. No precise calculation of the loss suffered is possible, but Rothman J's conclusion that a cushion of $80,000 for future economic loss should be allowed should be accepted. 27 The second major challenge with respect to damages was in relation to the allowance for domestic assistance, in accordance with the principles set out in Griffiths v Kerkemeyer (1977) 139 CLR 161. The trial judge allowed an amount of $9,828 for a period of six months after the accident. That allowed in full the plaintiff's claim for that period. However, in his schedule of damages, the plaintiff claimed further assistance at the rate of two hours per day, up to the trial, being a period of approximately seven years. For the future, he claimed an amount calculated at seven hours per week for a period of 21 years, until he reached the age of 70. Presumably other contingencies were accepted as likely to intervene by that stage, so that the causal connection between the injury and the necessary domestic assistance would by then have dissipated. 28 Despite his finding with respect to liability, the trial judge gave careful attention to both medical and lay evidence as to the consequences of the accident in relation to the plaintiff's health and likely prognosis: Judgment at [52]-[98]. For the reasons given by Rothman J, his Honour's finding as to the absence of future economic loss should not be allowed to stand. Nevertheless, his Honour identified a number of respects in which he held that the plaintiff "was not a reliable historian in relation to his health, work history, and the difference between his pre-accident condition and activities and his post-accident condition and activities": at [96]. Whilst the Appellant complained that the trial judge rejected the evidence of two women who provided considerable domestic assistance to the plaintiff, namely Ms Vicki Spathis and Ms Theodora Terzis, without criticism of their evidence, his Honour was entitled at least to discount the effect of their evidence. They spoke, no doubt accurately, of the assistance they provided to the plaintiff: it was nevertheless a matter for judgment as to how much of that assistance was a relevant consequence of the disabilities caused by the accident. Ms Terzis gave evidence that the plaintiff had assisted her hanging out the clothes on a few occasions and had "noticed" that he got "sore shoulders" in undertaking that activity: Tcpt, 21 September 2004, p 176. In cross-examination she agreed that she did his washing and hung it out for him but continued, perhaps somewhat obscurely, "but he can, though sometimes where he can put the washing in it": Tcpt, p 181. More important were the medical reports tendered at the trial which dealt with the physical restrictions caused by the injuries and an assessment of the extent to which, on that evidence, the plaintiff required domestic assistance. 29 Unfortunately, the trial judge did not expressly address the question of future domestic assistance. His Honour's finding in that respect was rolled up in his refusal to allow any amount for past or future economic loss: at [101]. Once it is accepted that there has been a diminution of earning capacity, at least for a person whose earning capacity required physical labour, it is likely, on the probabilities, that there has been some diminution in his ability to care for himself, and thus a need for domestic assistance. Making allowance for his Honour's finding of exaggeration in the plaintiff's complaints, I would nevertheless allow assistance for a period of one hour per day for the period from six months after the accident until approximately the judgment in the District Court, being a period of seven years. The appropriate figure would be $45,864. 30 An allowance for future domestic assistance must be an imprecise calculation. The plaintiff's schedule of damages allowed a period of 21 years, adopting an on-going allowance of one hour per day for that period. Applying the relevant multiplier, the amount claimed was $102,866. 31 I would allow continued domestic assistance for that period, but calculated on the basis of 5 hours per week. Applying the same multiplier, this would give a figure of $73,476. 32 No other challenge was made in the notice of appeal to the assessment of damages and the other findings made by his Honour should stand, including the proposed amount of $100,000 for non-economic loss, to which should be added the agreed interest on one-half of that amount at 2% for 7.5 years. Accordingly, I would allow the following amounts: General damages $100,000 Interest $7,500 Economic loss (past and future) $80,000 Past domestic assistance (for six months post-accident) $9,828 Past domestic assistance (seven years to date of trial) $45,864 Future domestic assistance (post-trial date) $73,476 Past out-of-pocket expenses $25,000 Future expenses $ 7,000 Total $348,668 70% $244,067 33 I would propose the following orders: (1) Appeal allowed and judgment and orders made by the District Court on 17 December 2004 set aside. (2) In lieu thereof, judgment for the plaintiff in the District Court in an amount of $244,067, such judgment to take effect from 17 December 2004 pursuant to r 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW). (3) Defendant to pay the plaintiff's costs of the trial. (4) Respondent to pay the Appellant's costs of the appeal. (5) Respondent to have a certificate under the Suitors' Fund Act 1951 (NSW) in respect of the appeal, unless disqualified under s 6(7). 34 ROTHMAN J: Anastasios Kappadoukas appeals the judgment of Rein DCJ of 17 December 2004, in which his Honour gave judgment and verdict for the respondent (the defendant below), Fransepp Pty Ltd. 35 In the proceedings before Rein DCJ, the appellant sued the respondent for damages for personal injury arising out of an accident, which occurred on 11 April 1997, at premises on the Pacific Highway, Crows Nest, owned by the respondent. The premises were in a state of partial demolition at the time of the accident. The appellant alleged that the accident occurred when the appellant fell through the floor of the upper level of the premises. He had gone to the premises to quote for painting work, for the purpose of which he climbed a ladder to the upper level and then fell through the floor of that upper level to the ground floor. Grounds of Appeal 36 The appeal is principally concerned with the findings of fact by his Honour. The appellant raises 12 grounds of appeal which fall into six categories: (i) grounds 1 – 4 deal with the treatment by his Honour of alleged inconsistencies in the evidence, including inconsistencies in the histories taken by one or more medical practitioners, the ambulance officer and the triage nurse; (ii) grounds 5 – 7 relate to the alleged errors in the findings of fact as to how the accident occurred, including findings on credit in relation to alleged inconsistencies; (iii) grounds 8 and 9 deal with the treatment of the appellant as an experienced tradesperson, and the findings of contributory negligence; (iv) ground 10 alleges a failure to find that the appellant had a diminished earning capacity by reason of the injuries sustained from this accident; (v) ground 11 alleges manifest inadequacy in the award for domestic assistance; and (vi) ground 12 raises a failure to give sufficient reasons. 37 I will deal with these categories and the grounds of appeal, although not necessarily in the order addressed above and not every detail thereof. Before doing so, it is necessary to deal with the principles on appeal and the circumstances and evidence before his Honour. Principles of Appeal 38 The High Court of Australia and this Court have on a number of occasions dealt with the principles to be applied in an appeal against findings of fact. The principles are well established and do not need to be restated at length. It is sufficient to refer to Fox v Percy (2003) 214 CLR 118 and to the principles that an appeal to this Court is by way of rehearing, and that an appeal lies on matters of both fact and law. It is the duty of the Court to form its own judgment on the facts in issue. 39 In the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy the High Court said: "[24] ... Care must be exercised in applying to appellate review of the reasoned decisions of judges, sitting without juries, all of the judicial remarks made concerning the proper approach of appellate courts to appeals against judgments giving effect to jury verdicts. A jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons. [25] Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of 'weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect' ( Dearman v Dearman (1908) 7 CLR 549 at 564). In Warren v Coombes , the majority of this Court reiterated the rule that: '[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.' … [27] … If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute. [28] [T]his Court [has] given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint…. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility finding. … [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of … appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical." It is these principles that inform the exercise of the jurisdiction in these current proceedings. 40 In this case the Trial Judge has not expressly relied upon the demeanour of witnesses. He has reasoned on the basis of alleged inconsistencies and as a consequence determined credibility. Nevertheless, the subtle effect of demeanour cannot be ignored. The appellant challenges those credibility findings and the alleged inconsistencies that underpin them. It is an unfortunate aspect of these proceedings that the errors to which the appellant points seem to arise because his Honour did not have the advantage of having available the transcript of evidence. Circumstances/Facts 41 The appellant was born in 1955 and worked in Greece as both a painter and a chef before coming to Australia in 1973. He continued to work in the painting and catering industries until about 1993. In 1993 he injured his back in a domestic incident. He was divorced in 1994 and in September 1995 his youngest daughter, 12 years of age, died. After that there was a period in which he did very little work and was, as described in the evidence, distraught. 42 Shortly before the accident, which occurred on 11 April 1997, the appellant was on sickness allowance and had commenced looking for work. The uncontradicted evidence of the then treating medical practitioner (Dr Macarounas) was that on 24 February 1997 the appellant's back had improved to the point where the medical practitioner had advised him to begin searching for suitable duties. 43 While the doctor had given him another sickness certificate for the following three months, the certificate was said to have been provided in order to cover him until he found and became established in a new position. The respondent did not require Dr Macarounas for cross-examination. The uncontradicted evidence, although not accepted by the Trial Judge (to which I will return later), was that the appellant had obtained employment as a chef although he had yet to commence that work and had arranged to undertake house painting with Mr Curtis, and had quoted on that work on a previous occasion. 44 In his spare time the appellant worked as a driver for a builder, George Katsaounis, and in that capacity had attended the premises where the injury occurred for the first time a few days before the accident; he had taken Mr Katsaounis to that site. 45 The building site in question (316 Pacific Highway) was adjacent to a pizza shop and was being renovated for the purpose of becoming the new premises for the pizza shop business. The respondent, a company controlled in all relevant senses by the operator of the pizza shop business, Giuseppe Perino, purchased the pizza shop (and the building site). 46 Mr Katsaounis had been asked by the respondent to quote on the renovation work at the property in question, which had previously been used as a fish and chip shop with a residence above. There was a considerable amount of building work to be done, the shop and residence above having been gutted by the former owner and left in a state such that insurance had been declined on the premises. On the basis of the inspection undertaken, Mr Katsaounis described the floor boards in the upper level of the site in the following terms: "Q: What did you notice about the flooring in the upstairs area? A: Well outside the area where the bathroom it was and I look at it was kitchen up there or something – the floor it was rotten. Q: It was rotten? A: Yes. Q: Yes? A: And I, when I, when I saw the job I turn around and that, I, I see, I turn around and I said 'the flooring need repair'. Q: Who did you say this to? A: The person who was in charge of there – the old fella." 47 On the date of the accident, at about 5:00pm, Mr Katsaounis and the appellant returned to the pizza shop so that Mr Katsaounis could give a quote to Giuseppe Perino. The appellant had arranged to meet Mr Curtis at the site for a purpose unrelated to the site, namely, to meet with owners of another property in the area for the purpose of quoting for a painting job. In the course of that afternoon, Mr Perino asked Mr Katsaounis about painting for the site and Mr Katsaounis introduced the appellant and Mr Curtis to Mr Perino. The appellant and Mr Curtis were at that stage waiting at the building site. The Trial Judge found that the appellant and Mr Curtis were invited to give a quote for the painting and went into the premises for that purpose. Mr Curtis took the view that the site was not in a fit state to quote and that any quote would be premature. Nevertheless, with the knowledge of Mr Perino, who for all relevant purposes is the agent of the respondent, Mr Curtis and the appellant went into the premises for a purpose related to a painting quotation. 48 The appellant gave evidence that he climbed a ladder that reached through a gap in the ceiling to the first floor while Mr Curtis held the ladder. The first floor was 3.4 metres above the ground floor level. The appellant said that he took one or two steps away from the ladder and fell through the floor. The only other eyewitness to the events was Mr Curtis. He corroborated the evidence of the appellant and gave evidence that he had held the ladder while the appellant climbed it. Mr Curtis said that he commenced climbing the ladder once the appellant had stepped off the ladder and onto the floor above. There was no other evidence relating to the manner in which the accident occurred. It is not disputed that the appellant was found, in an injured condition, on the ground, on the floor below, with some rubbish on top of him. 49 Apart from the evidence of the appellant, evidence was given by Mr Katsaounis, Mr Curtis, Ms Vicki Stahis (a person with whom the appellant had, at the time, a relationship and who provided assistance during the time shortly after his injury) and Theodora Terzis (a person with whom the appellant was in a relationship after the relationship with Ms Stahis concluded and who provided domestic assistance during that time). The respondent also adduced evidence, which came from Mr Giuseppe Perino and Mr Manuel Boghossian (who was a building maintenance person who happened to be in the pizza shop at the time of the accident and saw the appellant injured on the floor shortly thereafter). 50 As earlier stated, Rein DCJ gave verdict for the respondent (defendant before the Court below) and did not accept the evidence of the only two eyewitnesses to the accident. He did not make a finding as to the manner in which the appellant hurt himself. He rejected the evidence of the appellant and Mr Curtis, it seems, on the basis of inconsistencies that his Honour held were evident in the accounts of the appellant and in the objective material adduced in evidence before the Court. His Honour did not expressly rely upon demeanour, but, often, subtle aspects of demeanour colour the assessment of evidence, even though a trial judge may not make reference to it. Findings of Primary Judge 51 The inconsistencies that the Trial Judge found were significant in the assessment of the evidence stem from records of what was alleged to be an account given by the appellant to ambulance officers and/or the hospital at or about the time of accident. I will deal with those statements shortly. All of the other accounts given by the appellant and (although they are briefer), from Mr Curtis were consistent. There were a number of them, including accounts given to a social worker on 15 April 1997, and at least 16 accounts to various doctors, each of which consistently recorded that the appellant fell after climbing a ladder onto the top level of the building when the floor collapsed beneath him. A typical example is that given to Dr Middleton on 17 April 2000 in which it is recorded that the appellant said: "He had initially inspected the site from the ground level and then climbed a step ladder to inspect the next floor and as he walked on the floor reported that it collapsed and he fell some 3.5 to 4 metres to land on the concrete floor below." 52 While there are other accounts that are less detailed, none except those to which I now refer, are inconsistent with that set out above. One of them is as short as stating that he fell from a height and another that the ceiling collapsed, but none of them are inconsistent with that history. 53 The inconsistent reports derive from an ambulance record relevantly to the following effect: "Fracture right distal tib/fib; patient male fractured leg post fall off ladder; on assessment 41 year old male supine on street at above location; conscious; orientated time and place; patient stated climbed up an approximate 2 metre high ladder; accidentally slided down from top of ladder; landed on right leg. On examination patient well profused, complains of pain in the right leg. Swelling and deformity present … fractured tib/fib. Distal pulse … pain; denied dizziness/headache prior to event; … patient complains of pain in right shoulder stated unable to elevate right arm …." 54 The appellant was taken by the ambulance to Royal North Shore Hospital and the ambulance officers, as is usual practice, handed over the patient to the triage nurse. The note of the triage nurse is typewritten and is to the following effect: " Presenting problem : FALL OFF LADDER, ? FRACTURE RIGHT DISTAL TIB FIB. Nursing assessment : FALL OFF LADDER APPROX. 2 METRES LANDING ON RIGHT FOOT PAIN AND SWELLING DISTAL TIB FIB SPLINT INSITU ALSO COMPLAINS OF RIGHT SHOULDER PAIN CIRCULATION OBSERVE SATISFACTORY, NILL HEAD INJURY NILL NECK PAIN." Handwritten notes were in or to the same effect. 55 It is these records that are said by the Trial Judge to be inconsistent with the version of events given by the appellant. The appellant, in evidence, denies giving the ambulance officers or the triage nurse any such version. The ambulance officers and/or triage nurse were not called. It would not be unusual, in circumstances where the person was brought into hospital by ambulance, for the triage form to reflect the notes from the ambulance officers. 56 Even if the triage nurse's notes were made from a conversation with the appellant it is likely that a treating practitioner would be concentrating on the injury and its treatment rather than the circumstances giving rise to it. In Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Mason P said: "[35] Experience teaches that busy doctors sometimes misunderstand or misrecord histories of accidents, particularly in circumstances where their concern is with the treatment or impact of an indisputable, frank injury. It is possible, and not merely speculatively so, that Dr Middleton misunderstood the precise mechanics of the immediate antecedent of the fall." 57 In this instance, it is more likely that those responsible for the trauma department, and in particular the triage nurse, took the history from the notes of the ambulance. This is normal practice given that a significant number of trauma patients arrive in a state in which they are unable to give their own history. 58 Apart from the appellant denying that he told the ambulance officers the history recorded, so too did Mr Curtis. Further, Mr Perino, called by the respondent, clarified in cross-examination that the appellant was talking in Greek to George Katsaounis who was in turn talking to the ambulance personnel. His Honour commented that it was unlikely that Mr Katsaounis translated for the appellant given that the appellant was more proficient in English than Mr Katsaounis. Nevertheless, if Mr Perino's evidence is accurate, and there seems to be no reason to suggest that in this respect it is not, it may explain a version of events given to the ambulance officers that was inconsistent with the understanding of what happened asserted by both of the eyewitnesses. Further, the notes at the hospital made by a doctor from orthopaedics on the day of his admission refer in handwriting to: "A fall from 3 metres; looking at a new job; currently unemployed". That note was taken at 8.00pm that night, some two hours after the accident and an hour and a quarter after admission to the hospital. The doctor's notes further state: "Patient states fell 3 – 4 metres through roof at 6.00pm tonight; brought by ambulance." 59 Thus, that which is undeniably a contemporaneous note of the representation made by the appellant at or shortly after the time of the accident is wholly consistent with the version of events given in evidence and upon which the appellant relied to establish his cause of action. The other matters to which his Honour refers in discounting the version of events given by the appellant need to be addressed. His Honour recounts them in paragraph [47] of his judgment: (i) The height of the ladder 60 There was, it was held, inconsistent evidence as to the height of the ladder that the appellant climbed in order to gain access to the first floor. Mr Boghossian gave evidence that the only ladder on the premises was a stepladder of approximately 2.4 metres height. Mr Curtis and the appellant gave evidence that the ladder reached the first floor level and was used to gain access. 61 The two versions are not necessarily inconsistent. It has been accepted that the height of the first floor was 3.4 metres. A 2.4 metre stepladder would allow a person to gain access, with some difficulty, to the first floor from its highest rung. In any event, the height of 2.4 metres for the ladder was an estimation. The ladder height is not, of itself, an inconsistency with the version given by the appellant. Further, Mr Katsaounis also gave evidence that the ladder went through a hole in the ceiling. 62 The evidence concerning the nature of the ladder and its height is vague. A picture of the ladder, or a ladder identical to it, was tendered in evidence as exhibit 13. 63 It is a stepladder with a height of approximately 2.4 – 2.8 metres hinged two or three rungs from the top. There are no permanent cross-members joining the two sections of the ladder. There is an adjustable hook the purpose of which seems to be either to fasten the ladder to a wall or to hook the hinged uprights together, or both. The second upright (or supporting piece) of the stepladder has, from the photo, clearly identifiable rungs and the ladder seems, in all respects to be the kind of aluminium stepladder which is capable of being extended (by folding out) and used as an ordinary ladder for heights greater than 2.4 – 2.8 metres. At the very least, there is no evidence that would allow a finding that the stepladder is incapable of reaching up to 3.4 metres, which is the accepted height of the first floor. (ii) The existence of internal stairs 64 The Trial Judge considered that there was an inconsistency between the position of the ladder which was said to be in "the position of the internal staircase area" and the existence of internal stairs. His Honour remarked, correctly on the evidence, that there was no evidence that there were any internal stairs. The only stairs to the first floor were, according to his Honour, external and his Honour cites Exhibit 11. Exhibit 11 is not a full plan of the site, and shows no stairs, internal or external, or at least no stairs leading to the first floor. While this may be an overly pedantic refinement, none of the evidence suggested stairs were in existence; only a gap in the floor, which would eventually become the stairwell for the internal stairs. (iii) Falling through the floor 65 There are a number of aspects of the evidence utilised by his Honour to show that the appellant did not fall through the floor. This aspect of the evidence of the appellant seems to be the most crucial to the conclusion of his Honour as to the reliability of the appellant and the failure by him to prove his case. It is necessary to deal with it in some detail. 66 His Honour recounts that the appellant said he walked on vinyl tiles. It is no criticism of his Honour to reiterate that his Honour did not have access, at the time of writing the judgment, to the transcript of the proceedings and evidence before him. Indeed it is remarkable that the evidence is recounted as accurately and in as detailed a form as it was. However, the evidence in relation to the vinyl tiles is not that the appellant walked on the vinyl tiles. The evidence of the appellant is that on reaching the first floor he saw loose vinyl tiles. It is not apparent from that evidence that the vinyl tiles were being used as flooring. It may well be, and is certainly consistent with his evidence, that the vinyl tiles described as "loose vinyl tiles" were discarded on the floor. At no stage does the appellant testify to the fact that he walked on the vinyl tiles and at no stage was he cross-examined on the basis that he was giving evidence to that effect. 67 Mr Perino gave evidence that the respondent had removed the ceiling and floorings and exposed support beams for the first floor. The respondent's agents had removed two of the beams under the kitchen, which had been affected by moisture, and replaced them. Red board, according to Mr Perino, was laid on top of the exposed beams. Further, Mr Perino gave evidence, consistent with the evidence adduced on behalf of the appellant, that the red board was "loose flooring" and not intended to be permanent. He accepted that when he arrived at the scene there was a gap in the ceiling immediately above where the appellant was laying on the ground. He accepted it was a "hole in the roof" where "a board moved". 68 The second aspect is that both Messrs Katsaounis and Perino testified that floorboards had been placed, being variously referred to as "red board" and/or "masonite". I infer that that which was placed over the beams on the first floor was standard, thick, masonite-like boards traditionally used as either flooring or formwork support on building and construction sites. It is also clear that the "rotten" beams and floorboards identified by Mr Katsaounis on the earlier occasion were replaced and it was at least over these new beams that the traditional formwork boards were placed. 69 His Honour places great significance on the fact that neither the appellant nor Mr Curtis heard a "crack" prior to the fall and that therefore, his Honour deduced, neither the floorboards nor the beams broke. His Honour took the view that it was therefore unlikely or impossible for the appellant to have fallen through the floor. 70 With respect to his Honour, the above approach assumes that the only way in which someone could fall through a floor of that kind is if the floorboards or the beams break. Each of the witnesses testified to the fact that, immediately above where the appellant was found after the injury, there was a gap in the floorboards. This was not the subject of cross-examination. It was the evidence of all of the witnesses that were called by the appellant and the respondent at trial who were on the premises during or immediately after the accident. 71 It seems that his Honour was, with respect, led into error by the number of possibilities that were argued before him. It is clear that the red floorboards were placed on the new beams (and the ones that were not replaced) and not fixed in place. In those circumstances the most likely eventuality is that the floorboards moved when steps were taken by the appellant causing the appellant to fall through the floor. 72 It is necessary to explain the above. The regulations dealing with safe working in the building and construction industry have specific provisions relating to the fixing of floorboards. The purpose of those regulations is to avoid accidents of the kind that may have occurred (and in my view most likely occurred) in this case. The fixing of floorboards, relates to two distinct issues. The first of them is that the floorboards when not fixed will readily move if trodden on in a way that applies lateral force. The second is that it is almost impossible to guarantee that the floorboards, if placed over beams without fixing, do not cantilever over the beam in a way which would result in the floorboards acting like a child's see-saw if the edge of the floorboard were trodden on. The effect of such an occurrence would be that the floorboard would give way sufficiently to allow someone to fall past it and, after the person had fallen from the floorboard, the floorboard would land back in place (probably with a small variation to its original position). 73 For reasons that do not appear on the record, his Honour does not deal at all with either of those two scenarios, which, in the range of possibilities, are the most probable. Further, they provide an outcome that is wholly consistent with the evidence adduced and renders the evidence of each witness on this issue wholly consistent. On a lateral slide or cantilevering scenario, his Honour's inconsistencies disappear. It seems that his Honour took the view, incorrectly, that the only way in which the appellant could have fallen through the floor was if the floorboards or beams had broken. 74 The above scenarios are the only ones consistent with uncontroverted evidence given by witnesses who were not cross-examined in that respect. In those circumstances a finding other than that the accident occurred after the appellant reached the first floor and stepped on Masonite or floorboards that moved (either sideways or temporarily downward) causing the appellant to fall through the floor to the ground below was untenable. 75 I would find that, on the balance of probabilities, the appellant sustained the injury by falling through the floor to the ground below. I do so on the basis that the appellant stepped on floorboards that were in an otherwise good condition but which, not being fixed to the beams, moved in a way that caused the appellant to fall between the beams. 76 The findings of his Honour in relation to the accident are the major basis upon which his Honour determined the credibility of both Mr Curtis and the appellant, and inform all of the judgment. It is necessary, therefore, to revisit the findings in relation to contributory negligence, damage and earning capacity. Contributory Negligence 77 In determining contributory negligence his Honour took the view that any damages to the appellant should be reduced by 30 percent on account of contributory negligence. The apportionment for contributory negligence is a matter on which reasonable minds may differ. An appeal court should not interfere with such an assessment except on one of the well-known bases for disturbing an evaluative judgment. 78 However, in this instance, the existence and assessment of contributory negligence depends on the view taken by his Honour of the cause of the accident necessarily being the breaking of the floorboards (which his Honour found had not occurred). If, as I have found, the accident occurred because of the use of loose floorboards, then a different assessment must be made. His Honour's assessment depends on the capacity of the appellant to ascertain from observation that the floorboards were in poor condition. On either of the scenarios that I have found were most probable, the floorboards would not have been observably dangerous. They were new and in good condition. The fact that they were not fixed would be unobservable even in good light. 79 On the above finding, while it may have been "careless" to go onto the first floor in the dark, that carelessness was not a contributing factor to the accident. "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ( Pennington v. Norris (1956) 96 CLR 10 at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd (1953) AC 663, at p 682; Smith v. McIntyre (1958) Tas SR 36, at pp 42-49 and Broadhurst v. Millman (1976) VR 208, at p 219 and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." ( Podrebersek v Aust. Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494). 80 The appellant was able to see well enough to see the floorboards (and describe them) and the loose vinyl tiles. In the circumstances as I have found them, abundant lighting would not have prevented this accident. Any "carelessness" of the appellant was not a relevant cause (absolutely or comparatively) of the injury, and no adjustment should be made for contributory negligence. Damages 81 As earlier stated, his Honour was not satisfied that after the accident the appellant would have been able to or would have worked as either a painter or kitchen hand or chef for anything but a short period. As to physical capacity, this is contrary to the uncontradicted and unchallenged evidence of Dr Macarounas. As to motivation, it is contrary to the uncontroverted and uncontradicted evidence about his work as a chef commencing at or about the time of his accident and the purpose given for being on the site of the accident, namely making a quotation for another painting job in the area. This evidence was unchallenged. 82 There is little doubt that the view that his Honour took of the appellant on account of the inconsistencies in his evidence (and a less than candid approach to some of the medical practitioners) caused his Honour to take the view that he did in relation to a number of the elements of damage. Nevertheless, his Honour has helpfully set out findings in relation to damage. 83 In relation to ongoing incapacity and economic loss, it is relevant to refer to the opinion of Dr James Bodel, orthopaedic surgeon, qualified by the respondent to report on the appellant. His prognosis was that the appellant should be capable of part-time light work: "although not his pre-injury work as a painter. He needs to be referred to a rehabilitation facility to explore the possibilities of retraining and redeployment in other areas. He would need to be involved in predominantly sedentary work in order to minimise his symptoms." 84 His Honour describes the opinion of Dr Bodel as that the appellant "would be capable of part-time light duty work about 20 hours per week, but would require ongoing physiotherapy – six to eight visits at a time, twice a year". On that basis and the other findings I have here made, it is difficult to understand and impossible to accept that there was no economic loss occasioned by the injury. 85 There is no challenge to the finding of general damages and I accept the finding of his Honour that general damages should be assessed at $100,000. 86 Interest would be payable on half of that amount at two percent for the seven and a half years up to the date of effect of judgment, being an amount of $7,500. 87 While his Honour would not allow any amount for past or future economic loss, this is based upon his Honour's view as to the capacity to obtain work in the past and future and, as made clear above, I take a different view as to these issues. I would calculate the loss of earning capacity (both past and future) at $80,000. 88 As to out-of-pocket expenses, there is no challenge to the finding of his Honour and the assessment of his Honour should stand in this regard, namely, $25,000 for past expenses and $5,000 for the future. 89 In relation to Griffiths v Kerkemeyer I accept, as did his Honour, the past assistance on the basis of six months at 21 hours per week at $18 per hour, being an amount of $9,828. As to future Griffiths v Kerkemeyer amounts I consider that future medical treatment, the expenses of which are now being allowed, will ameliorate the need for care into the future, especially if that is used for treatment of the depressive aspects of his condition. I would consider that a ratio which reduces that claimed for 5 days out of every 7 is appropriate for the period post trial. 90 I would also consider that half of that claimed for the approximately 7 year period prior thereto is appropriate. This results in past assistance as provided, an hour per day average for the next 7 years and thereafter an hour per day for 5 days each week. The Griffiths v Kerkemeyer assistance for the approximately 7 year period between the conclusion of period of past assistance and the date of effect of this judgment is $45,864. Damage for future Griffiths v Kerkemeyer assistance is assessed at $73,476. This would result in a total verdict for the plaintiff of $348,668 (including interest up to the date of effect of judgment). Interest on the judgment for the period following the date of effect of the judgment is in accordance with s101 of the Uniform Civil Procedure Act 2005. 91 I would, on the above basis, order that the respondent pay the appellant's costs of and incidental to the proceedings and the proceedings below. I would grant a certificate under the Suitors' Fund Act 1951. 92 I would propose the following orders: (i) appeal allowed; (ii) judgment of Rein DCJ of 17 December 2004 be set aside; (iii) judgment for the plaintiff in the District Court in an amount of $341,168, such judgment to take effect from 17 December 2004; (iv) the respondent to pay pre-judgment interest on half the amount of $100,000, at two percent per annum for seven and a half years, being an amount of $7,500; (v) the respondent to pay the appellant's costs of and incidental to the appeal and the trial, as agreed or assessed; (vi) the respondent to be granted an indemnity certificate pursuant to the terms of section 6 of the Suitors' Fund Act 1951 if otherwise entitled. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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