District Court New South Wales Medium Neutral Citation: Carroll v Thompson [2014] NSWDC 96 Decision date: 10 March 2014 Before: Cogswell SC DCJ Decision: Judgment for the plaintiff against both defendants in the sum of $552,863. Defendants to pay the plaintiff's costs. Catchwords: CIVIL LAW - Torts - negligence - tenant suffered injury when outside concrete steps collapsed - landlords did not file a defence - default judgment entered during preliminary hearing - added difficulty when one party does not appear - assessment - consideration of "a most extreme case" authorities. Legislation Cited: Civil Liability Act 2002 (NSW) s 16. Cases Cited: Dell v Dalton (1991) 23 NSWLR 528. Jopling v Isaac [2006] NSWCA 299. Thatcher v Charles [1961] HCA 5; 104 CLR 57. Zhang v Golden Eagle International Trading Pty Ltd [2006] NSWCA 25. Category: Principal judgment Parties: Mark Carroll (plaintiff) Stephen Thompson (first defendant) Jeffrey Thompson (second defendant) Representation: Counsel: V Jurisich (plaintiff) File Number(s): DC 2012/00386886 Judgment 1Mark Carroll was taking out some washing from the back door of the house where he lived in Bateau Bay. The steps that he was using to go out of the house gave way and he fell. This happened on 16 December 2009. In fact, the steps might have been in front of the house. Mark Carroll injured himself and has sued the two landlords of the house, claiming damages for his injuries. 2He claims that the landlords, who are brothers Stephen George Thompson and Jeffrey Laurence Thompson, were negligent and breached the duty of care which a landlord owes to a tenant. In a statement of claim issued by Mr Carroll out of this Court, and later amended by my leave on 11 February 2014, Mr Carroll listed ways in which the landlords were negligent. The landlords, the brothers Thompson, did not file any defence to the proceedings commenced by Mr Carroll. During some preliminary hearings in this case, I entered default judgment against one of the brothers. Default judgment had already been entered against the other brother by the Registrar. Accordingly in due course I will enter verdict and judgment for the plaintiff if I have not already done so. 3The case proceeded before me over 5 and 6 March 2014 as an assessment of the amount of damages which should be awarded to Mr Carroll for the injuries that he suffered as a result of the negligence of the brothers Thompson. 4I should mention at the outset that a difficulty in this case has been that it was not defended. That may sound unusual but a judge is assisted when proceedings are defended. The system of justice administered in this state and indeed throughout Australia is adversarial. Evidence is called and assertions made by one party and they are tested and challenged by the other party. Both parties have usually undertaken a good deal of preparation which involves investigations. In particular, a defendant in proceedings will usually investigate the claims made against the defendant by the plaintiff in proceedings. I have not had the benefit of those investigations and challenges but I have had the benefit of a very experienced counsel, Mr V Jurisich, for the plaintiff. He has properly discharged dual responsibilities, indeed duties, both to his client in appearing for him and towards the Court in acknowledging the absence of a challenge to his case and, consistently with his client's case, putting in his submissions propositions which he said might be regarded as appropriate or fair in the circumstances. 5The other benefit I have had in the case are the two witnesses whom Mr Jurisich called. One was the plaintiff, Mark Carroll, and the other was his partner, Leesa Docherty. Neither was challenged in their evidence of course, but nor did either of them leave me with any impression that they were attempting to exaggerate or twist their evidence in ways which would make it more acceptable to me. It also seemed to me that the evidence which Mr Carroll gave was supported by the medical evidence tendered on his behalf. 6I should add here another preliminary observation. I was troubled by the fact that the medical evidence was not up to date. The most recent report was 2012. Mr Jurisich gave an explanation which made sense. He pointed out first that it seemed that his client's condition had stabilised at around about that time. That is consistent with the medical evidence. The second was a more practical problem. Because the case was not being defended, there was obviously some risk to his client in recovering damages which would include costs and expenses. That meant that his client was reluctant to expend funds on paying for medical reports. 7I turn now to the evidence which was tendered. As I said, Mr Jurisich called his client and his client's partner. In addition, he tendered a bundle of medical reports which became exhibit A, a photograph of the broken steps which his client had fallen down which became exhibit B, some rates for home care services which became exhibit C and a schedule of medications and the prices charged as a pharmacy which became exhibit D. 8I should briefly recount Mr Carroll's evidence. He turns 52 next month. He was educated to year 12 and had steady employment in the building industry until 2009. Around then a mental health condition flared up. It seems as though it was quite serious. He stopped work because of that issue and has not worked since. I should add that there is no claim for economic loss so far as it is for lost earning capacity. 9Mr Carroll acknowledged that he had some sciatica which is consistent with the medical reports. He had some pain running down his back and into his right leg a couple of months before the accident. He said that generally he was in good shape physically. He engaged in sports and activities including boxing and touch football. He said the back pain which he had consulted a GP for settled with Panadol. He also used to play squash and swim and engaged in surf lifesaving activities. These activities also led to a very active social life for him. 10He had been living at the house for about three years when the accident happened. He was carrying some washing and the steps just collapsed and gave way. Exhibit B shows the broken steps and the steps do have a not insignificant drop between them. He did a half somersault and his body half twisted under him. It was obviously an awkward fall. He said that the bottom half of his body was on his back and the top half was twisted around and his face was planted in the ground. It happened not long after midday. 11The accident was so serious that those who were in the house, which included one of the landlords, called an ambulance. The ambulance came and attended to Mr Carroll on the spot and took him to Gosford Hospital. The ambulance notes record that Mr Carroll's chief complaint was neck and spinal pain after his fall. It noted that he had severe pain in the cervical and lumbar region. 12When he got to Gosford Hospital, the clinical notes recorded a history that he had been walking on concrete stairs which gave way and that he was complaining of neck and lumbar back pain. He had a neck collar on. Significantly, the hospital notes included that Mr Carroll had been given 10 milligrams of morphine intravenously en route to the hospital. 13Returning to Mr Carroll's evidence, he stayed in the hospital overnight and was discharged, he said, at about 3.00am next morning. He went home and spent the next week in bed. He started a regime of medication for pain relief and was wearing a spinal guard at one stage. He saw a specialist in Gosford Hospital who, he thought, was a specialist in orthopaedics. I do not think I have a report from that specialist. He saw him only once. 14He said that his back pain has remained constant since then. Significantly there is a radiological report which is part of exhibit A. It was taken about six months or so after the accident and is a CT of his lumbar spine. The report, given to Mr Carroll's GP, concludes as follows - "There is disc degeneration in the lower lumbar spine at L4/5 and L5/S1 levels. There is severe facet joint osteoarthritis in the lower lumbar spine and this in combination is causing a significant stenosis of the canal at L4/5 and a marked bilateral foraminal stenosis at L4/5 and L5/S1 levels." The report had earlier noted that the "lumbosacral disc shows a degenerative central vacuum." 15Mr Carroll went on to describe the impact which the accident had on his life. He said that public transport was impossible for several months and he was literally stuck at home. The pain in his back was too much. He attended doctors at the Bay Village Medical Centre and also saw a Dr Singh at Gorokan. 16Mr Carroll said his mental health had stabilised a lot since its rapid deterioration in 2009. That is consistent with a report from Michael Quinn, a registered nurse at Wyong Hospital, dated 28 August 2009 which is part of exhibit A. About 10 days after his admission with what was described as "disturbing psychotic symptoms" and having been stabilised on antipsychotic medication, Mr Carroll had presented "as being mentally stable" and was in "cheerful spirits", his mood being "very good." Michael Quinn observed that there was no observable psychotic symptomatology. He presented and was assessed again at the end of August as "mentally stable with no overt psychiatric phenomena or symptomatology." He had been diagnosed with schizophrenia and it appears to have been successfully treated. 17I make those observations at this stage because Mr Carroll noted that his anxiety a year after the accident was a lot higher. He said it was like he had "lost control over my life." He said he became very anxious. 18I should add that part of the evidence presented on his behalf is that he has been given the benefit of a disability support pension. He suffered a head injury as a result of an assault and also had a heroin and alcohol addiction and was hepatitis B and C positive. That observation was made around 26 May 2009 in a medical certificate provided by Dr Hawkes at the Bay Village Medical Centre in support of his successful application for a disability support pension. 19Returning to Mr Carroll's evidence, he said that after the accident he found he was not able to handle his mental health problems as well. He became more depressed and anxious. His use of medication, he said, increased dramatically. He used not to have to take medication all the time but now did so. He impliedly confirmed his drug habit by stating that he was on the methadone program and had been for many years. 20Asked by Mr Jurisich how he was at present, he says he takes each day at a time but has pain all the time and he struggles to get up in the morning. His back pain radiates from his right hip down into his right leg. He has up to eight different medications which is consistent with a report of Dr Rastomjee dated 9 July 2010 where that doctor lists the medication which is prescribed for Mr Carroll. He confirms that he still takes all of the medication which is listed by that doctor and that medication is the subject of the price list in exhibit D which I have already referred to. That price list is a guide because Mr Carroll only pays $6 because of his pensioner status. The medications have produced a stomach ulcer which he needs to take other medication for and he needs Ventolin which he did not need before the accident. 21Mr Carroll says that the pain in his back and right leg immobilises him and he describes it as "agony to get around." He has put on about 20 kilograms since the accident because he cannot exercise. He cannot do the boxing that he used to do because, as he described it, it is like dancing. His social activities have almost completely gone. His friends stayed in touch for a while but, as he said, they then tend to get on with their own lives. Asked about the impact which it had on his relationship with his partner Leesa Docherty, he said the "relationship is down the toilet" and added that he cannot have sex. 22Mr Jurisich asked him what kind of work he did around the house before the accident. He said he did practically everything including all the housework and the gardening and the cooking. He had the time to undertake these tasks because he has not worked since July 2009. He washed the car and fixed it when necessary but now he cannot do these domestic activities. He cannot look after the bathroom or the garden or mow the lawn. He has grandchildren whom he cannot lift and play with. He cannot wash the car or cook. He says now that his partner Leesa does it all and a mate sometimes helps. Leesa even has to help with his personal needs including showering. She has to help him dress including getting his trousers and socks on and doing up the laces on his shoes. She has to wash his legs and his back and help him dry himself. He cannot bend to pick things up if he drops them. 23Asked how the accident had affected his life, he said that the accident has "destroyed it" and that he could not believe the impact which it has had on him. He cannot even drive the car because he cannot respond quickly enough with the brake or accelerator in circumstances where he would be required to. He cannot get to sleep straight away and his sleep is broken. His relationship has deteriorated in the way that I have said and he is conscious of the strain which the extra duties place upon Leesa. He said that he is forever apologising to her. 24Mr Carroll estimated that the extra work required is somewhere between seven and 14 hours a week, being at least an hour a day where someone else - mostly Leesa - is required to do around the house what he used to be able to do. 25Leesa Docherty confirmed her life partnership with Mr Carroll. It has not been a straightforward relationship. She has left at times and stayed away for up to six weeks. She confirmed however that she loves Mr Carroll and would always come back. She confirmed that Mr Carroll was always physically active before the accident and that his mental health had stabilised. He had an active social and sporting life and described him as a "happy type of person." 26Ms Docherty did not do much work around the house before the accident and he "generally looked after me." Indeed she went on to describe herself without prompting as "a trophy wife." They did some shopping together and made the beds, but he did the overwhelming majority of the work around the house. 27Since the accident Ms Docherty said everything has changed. He needs much more by way of painkilling medication since the accident and he could no longer bend or lift or carry things. She said that his back seems to have become worse as time goes on and that he can hardly bend at all. He would not use public transport for the first year after the accident and now uses taxis. She said that she now herself does "pretty much all" of the housework and that commenced from the time of the accident. She does things such as vacuuming, the linen, the laundry, cooking and shopping and driving around. She looks after him in the ways that she has described and will keep doing it because she "loves him to death." She thought that she does about two hours a day extra work that she used not to do, give or take half an hour. She sometimes actually has to enter the shower with him to assist in washing him from the thighs down. 28Mr Jurisich addressed me about the damages which should be awarded. He took me to some case law. I'll just pause there in my judgment. MATTER INTERPOSED 29Mr Jurisich took me to two kinds of authorities on non economic loss at my request. One concerned the significance of the expression "a most extreme case" in s 16(1) of the Civil Liability Act 2002 (NSW). As Handley JA said in Dell v Dalton (1991) 23 NSWLR 528 at 533G, "[T]he assessment of damages for personal injuries [in] its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of common sense and judgment." Although his Honour was considering different legislation, he was considering the same phrase and said at 533A that the legislation does not "require the impact of particular injuries on a given individual to be ignored." His Honour had earlier quoted at 532F from Windeyer J's judgment in Thatcher v Charles [1961] HCA 5; 104 CLR 57 over 71 - 72, where his Honour had said the following - "Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals." Mr Jurisich also took me to the Court of Appeal's judgment in Jopling v Isaac [2006] NSWCA 299. McDougall J said in a judgment the following at [24] - "Indeed, to say that a determination of non economic loss involves more art than science might be to overstate the degree of logic and precision with which such an assessment is performed. A primary judge has the benefit of considering the whole of the evidence, and of observing the plaintiff in the witness box. A primary judge has the advantage of forming an assessment, not always or wholly based on objective and rational factors, of the plaintiff's credibility, and of assessing the veracity and accuracy of the plaintiff's complaints." His Honour also quoted from Handley JA's judgment in Dell v Dalton. I should add that McColl and Basten JJA agreed with McDougall J. 30Finally, in Zhang v Golden Eagle International Trading Pty Ltd [2006] NSWCA 25, Basten JA (with whom Ipp and McColl JJA agreed) agreed with what Handley JA had said in Dell v Dalton and added at [71] that "the purpose for which the assessment of severity is to be made is to identify the effect of the injuries suffered on the particular plaintiff." 31The second series of cases referred to by Mr Jurisich was to assist me in coming to an assessment in accordance with s 16 of the Civil Liability Act and in support of his submission that the severity of the non economic loss suffered by his client was in the range of 28% to 30% "of a most extreme case" in accordance with s 16 of the Civil Liability Act. 32Mr Jurisich pointed out that there was a minor pre existing orthopaedic disability which the x-ray confirmed and it was rendered extravagantly symptomatic. It was not an insignificant fall as shown by exhibit B and explained by Mr Carroll. Mr Carroll's life changed from the time of the accident and the aggravation of his degenerating back problem continued, and has continued since then. His psychiatric condition was also aggravated and his lifestyle, social and personal, has suffered a severe impact. 33I have considered the cases that he refers me to and I have considered the evidence of his client and of Leesa Docherty and I agree with Mr Jurisich's submission that a fair assessment is that the severity of Mr Carroll's non economic loss is 29% of a most extreme case. 34So far as past economic loss is concerned, the claim is for medical expenses. Although, as I said, exhibit D demonstrates that the medication is expensive, Mr Carroll pays only about $6 for medication overall plus additional expenses such as travel and seeing his GP. 35Mr Jurisich estimated that his client expended about $48 a month, say $12 a week. The period of time since the accident to now is about 215 weeks and he argued that that would throw up a figure of $2580 for medication only. He said I should allow an extra $1000 for his client's travel and consultations with doctors. 36I can see the point in his submission but I am not going to award the whole of that amount. I do not think the expenditures have occurred over the whole of the 215 weeks. I would be prepared to allow about 150 weeks at $12 a week which would come to $1800 and allow an extra $500 so that the total that I would allow for past medical expenses is $2300. 37Mr Jurisich argued that his client's ongoing medical expenses would include medication and treatment. He said that I should use the past expenditure as a guide. I need to take into account that he has additional problems such as his ulcer and may need to see specialists. He suggested an ongoing figure of $15 a week was appropriate. When the appropriate multiplier of 855.7 is applied, it throws up a figure of $12,835. Mr Jurisich argued that it would be appropriate and fair to round that up to $15,000 and I agree with that submission and will allow $15,000 for future medical expenses. 38Mr Carroll claimed damages as well for attendant care services. The evidence suggested that care services are provided by Leesa Docherty for up to two hours a day which might be 14 hours a week. I accept that general estimate. It is clear, and I find, that Mr Carroll used to do almost everything around the house and it has been taken on by Leesa Docherty. 39Dr Bodel, who was an orthopaedic specialist whose report I have not yet mentioned, was qualified by Mr Carroll's solicitors to provide a report. His report is dated 28 April 2012. Dr Bodel diagnosed that Mr Carroll had "suffered a soft tissue injury to the lower part of the back and appears to have also suffered an aggravation of some previous degenerative disc disease at the L5/S1 level. This gentleman was apparently asymptomatic ... at the time of the fall." I accept that diagnosis and his estimate that the "prognosis is guarded." 40Dr Bodel acknowledged that Mr Carroll "does require domestic assistance for household maintenance and cleaning activities." He estimated three hours a week. He thought that Mr Carroll would "require ongoing treatment indefinitely until his symptoms settle." He thought that he would need "intermittent physiotherapy and hydrotherapy." That is the kind of treatment which I had in mind in making provision for his future medical expenses. 41Mr Jurisich needed to deal with a discrepancy between Dr Bodel's estimate of three hours a week and his client and his client's partner's estimate of up to 14 hours a week. Mr Jurisich suggested that Dr Bodel had understated the need perhaps because of the way that Mr Carroll presented. He suggested that Dr Bodel may have thought that Mr Carroll was coping better than he is. It does not seem that Dr Bodel interviewed Leesa Docherty. I have had the benefit of hearing evidence from Leesa Docherty. Mr Jurisich argued that a fair estimate might be 10 hours a week for attendant care services. I accept that submission. I have heard evidence from both Mr Carroll and Lisa Docherty. It is clear that Mr Carroll needs extensive assistance in his personal needs and that he can no longer do the normal domestic tasks that he attended to, being almost all of the tasks around the house. I think Mr Jurisich's estimate of 10 hours a week is about right. 42Mr Jurisich said that if I allow 10 hours a week at the rate of $27.70 for the 215 weeks, that would produce a figure of $59,555 and I will allow that amount. 43I also propose to allow 10 hours a week into the future applying the multiplier and with the assistance of exhibit C and I would allow the amount of $376,508 as submitted by Mr Jurisich. 44Accordingly I would allow the following amounts by way of damages. For non economic loss, $77,000; for past medical expenses, $2300; for future medical expenses, $15,000; for past attendant care services, $59,555; and for future attendant care services, $376,508 being a total, by my calculation, of $530,363. HIS HONOUR: Is that what you get, Mr Farah? FARAH: I'll just double check that, your Honour. The other thing is that non economic loss you mentioned was 29%, is that correct? HIS HONOUR: Mm. FARAH: 29% I think under the current table is a total of 99,500. HIS HONOUR: I've got here - yes, sorry. I was going by - just a second. What did you say it is? FARAH: 99,500, according to the section 16 table that was amended in October 2013 your Honour. HIS HONOUR: And is the figure we take the adjusted, 551,500? FARAH: That's right. HIS HONOUR: And we round up, don't we, to the nearest 500? I got 99,270 but that becomes 99,500 is that right? FARAH: I believe so. It won't make too much of a difference in regards to that rounding up but it was mainly because HIS HONOUR: No it says here, subsection (4), "An amount determined in accordance with subsection (3) is to be rounded to the nearest 500." Rounded up, yes. So 99,500 plus 2300 for past medical expenses plus 15,000 for future medical expenses plus 59,555 for past attendant care services plus 376,508, I get to 552,863. FARAH: So do I. HIS HONOUR: Okay, 552,863. 45The amount of general damages for non economic loss should be $99,500. The total is $552,863. 46Accordingly I enter a judgment for the plaintiff against both defendants in the sum of $552,863 and I order the defendants to pay the plaintiff's costs of these proceedings. HIS HONOUR: Now, is there anything else Mr Farah? FARAH: I don't believe so, your Honour. HIS HONOUR: I'm not saying there should be, but I'm just checking. That's good. Now just let me tidy up here. I'll just give the exhibits to my associate. I'll give her the amended statement of claim, a couple of MFIs. I guess I should order a transcript of this judgment. Yes, I obviously have to so that it can be delivered to the defendants. You need to do that I guess and you need to go and enter judgment. Now I think my associate probably has done something for me to sign. I do that in chambers so if you wait around for a few minutes I will go back and she will give it to me and I will sign it, and she will bring it back for you and then you can go - I think the judgment is entered in the registry. Thank you, I'll adjourn. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2014