Spackman v Stevens[2010] QDC 118

DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff claims damages for personal injuries suffered in an incident that happened on or about 18 January 2005 on the timber pool deck of a residence which her husband rented from the first defendants. The second defendant constructed the deck in about 2001 and became involved in attending to its condition in the weeks or months preceding the incident.

2. [2]
   The claim and statement of claim were filed on 18 January 2008, the latter recording the court’s granting leave on that day to commence a proceeding notwithstanding non-compliance with the Civil Liability Act 2003 and the Personal Injuries Proceedings Act 2002.  That leave was necessary to protect the plaintiff against “limitations” problems.  The brief statement of claim contains the following:

“2. At about 1.30 pm on 18 January 2005 whilst the Plaintiff was on the timber deck, she heard and felt a timber crack under her, it sprang back catching her foot, thereby twisting and wrenching her knee causing her to suffer injury loss and damage.

9. Injury loss and damage was caused by the negligence of the First Defendants, particulars of which are as follows:-

1. (a)
   After complaints being made about the safety of the timber decking, failed to properly inspect the timber decking.

2. (b)
   After complaints being made about the safety of the timber decking, failed to properly repair the timber decking.

3. (c)
   After complaints being made about the safety of the timber decking, failed to replace the timber decking.

10. Particulars of negligence of the Second Defendant are as follows:

1. (a)
   After complaints being made about the safety of the timber decking, failed to properly inspect the timber decking.

2. (b)
   After complaints being made about the safety of the timber decking, failed to properly repair the timber decking.

3. (c)
   After complaints being made about the safety of the timber decking, failed to properly replace the timber decking.

The eccentric paragraph numbering in the statement of claim will be noticed:  2 should be 8.  The filed documents appear to have been prepared in haste.  It is a pity that they were not reviewed, for example to ensure that paragraph “2” accorded more closely with the account the plaintiff had given.

3. [3]
   The plaintiff’s claim is restricted to one in negligence. While claims against landlords at common law (like the present one) may be pursued successfully (Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313), the course of court decisions indicates that the plaintiff’s task may be more straightforward if the claim is based on contract or breach of statutory duty, in particular by reference to s 103(2) of the Residential Tenancies Act 1994 which provides that at the start of a tenancy, the lessor must ensure that the premises are fit for the tenant to live in, that they “and inclusions” are in good repair, etc.  See Gration v C Gillan Investments Pty Ltd [2005] 2 Qd R 267.  As the judgments there noted, the landlord’s corresponding obligations “while the tenancy continues” under subsection (3) to “maintain” are differently expressed, presumably to take account of the responsibility the tenant must have in practice to inform the landlord of relevant issues once in possession.

4. [4]
   In Gration there was a difference of opinion as to whether the use of the word “ensure” imported any change to the earlier statutory obligation to “provide” premises up to standard.  Only Williams JA thought it did, adopting an English judge’s view that the term was “used in a common and colloquial sense in which “making sure” is used, that is, as equivalent to ascertaining or satisfying oneself, and does not mean anything in the nature of a warranty or guarantee” (271).  His Honour adopted (at 272) what Acting Judge Kitchen said in Kneuppel v Zarpas [2004] SADC 162:

“If that is the sense in which “ensure” is used in s 68 then before the tenancy begins the landlord (or at least some person on his behalf) must inspect the premises to ascertain the state of repair in order that the landlord is in a position to make sure they are in a reasonable state of repair at the beginning of the tenancy.  That state of disrepair which such an inspection would reveal to a reasonable observer, the landlord has notice of.”

5. [5]
   In Gration the plaintiff was injured when a stair tread failed.  The majority in the Court of Appeal rejected the landlord’s appeal.  Wilson J, who constituted the majority with Williams JA (at 287) considered that the legislation should be:

“…construed as not imposing an obligation on the landlord to remedy defects beyond those of which he or she has actual or constructive notice.  Here the appellant had no actual notice of the wood rot; whether it had constructive notice was a question of fact which the trial judge must be taken to have determined against it.  Unless that finding should be reversed, the appeal cannot succeed.”

Her conclusion was:

“This was an old house in tropical north Queensland.  The wooden steps were exposed to the weather.  Progressive deterioration from wood rot resulting from exposure to moisture was reasonably foreseeable by someone in the position of the appellant.  That foreseeability was heightened by the fact that at least one tread had been replaced.  The presence of rot could have been detected by relatively simple probing with a screwdriver by someone with experience in home maintenance; it was not something requiring the skill of a professional engineer.  To expect the appellant to have the stairs inspected by someone with experience in home maintenance would require no more of it than the exercise of reasonable care to make sure the premises were in good repair and fit for the respondent and her husband to live in.  In my opinion the trial judge’s conclusion effectively fixing the appellant with constructive notice of the defect was clearly correct.”

6. [6]
   Wilson J’s judgment summarises the historical difficulty which claimants against landlords relying on the common law have faced and which, unsurprisingly, led to legislative intervention. The first defendants, represented by Mr Howe, justifiably insisted on restricting the plaintiff to her pleaded case, which leaves no room for a claim based on s 103 or on negligence in respects other than (a), (b), (c) as set out above. In the result, the court was urged to conclude that the claim must fail, notwithstanding that a claim under the Act against the first defendants might have succeeded and that claims on other bases against Mr James, the second defendant (who was self-represented), for example that there was negligence in the original construction of the deck, may have succeeded.

7. [7]
   Mr Howe’s position could not have been more plainly put. There was no application to amend the plaintiff’s claim or pleading.

8. [8]
   I accept the evidence of the plaintiff, Ms Spackman, also that of her husband and that of Mr Hulles, an experienced carpenter presented as an expert in matters to do with timber, although he has now shifted the focus of his activities to real estate. I was impressed by his evidence, notwithstanding the problematic feature much commented on by Mr Howe, that it was given by reference to photographs rather than based on an inspection of timbers actually in place. In Gration, differing views appear to have been taken of the usefulness of expert evidence given in similar circumstances.  The reasons given do not, in my view, preclude reliance on (or reduce my confidence in) Mr Hulles’ evidence.  It is unfortunate that Mr Pope for the plaintiff, on challenge by Mr Howe, did not persist in eliciting Mr Hulles’ views based on photographs taken relatively recently, in November 2008; that exercise might have undermined or confirmed the assessment which was made by reference to limited photographic evidence from 2005.

9. [9]
   The first defendants, Mr and Mrs Stevens owned and resided in the premises, where they had got Mr James to construct decking around the backyard swimming pool; decking which extends over nearly all of the back yard, the pool itself and a large raised garden bed excepted. There is also on the fence line adjacent to a park the “Bali hut”, which I take to be the same thing as the “cabana” referred to by the plaintiff.  Mr James is a carpenter of many years’ experience.  He recommended a supplier of decking materials in whom he had confidence, told Mr Stevens of the quantities required and left it to him to select what product to use, based on appearance, price, etc.  The deck was raised a foot or so above the ground.  I accept the plaintiff’s evidence that the incident in respect of which she claims occurred where she says it did, close to the Bali hut.  I accept (against the reservations or denials that Mr Stevens and Mr James conveyed to the court) that Mr Spackman’s photograph exhibit 9 shows the timber referred to in paragraph “2” of the statement of claim in a condition where it has fractured diagonally across reasonably close to the joist at one end and broken around the adjoining joist, sliced off (at a shallow angle) to reveal the light coloured interior of the “timber” or board for a few inches – there is a missing piece of board, resulting in a gap through which one can see the ground in exhibit 9.  Mr Spackman’s foot did not go through the hole.  Indeed, her account of the incident was that in an instinctive or spontaneous reaction to the crack, she moved in an awkward way, injuring her left knee.

Complaints

10. [10]
    Mr Spackman signed an agreement for a six month lease commencing 23 August 2004 a calendar month earlier. This followed an inspection by the family (which included two teenage children); they had made a quick visit from Western Australia in preparation for a move to the Gold Coast later in the year.  I am satisfied that there were complaints about the deck to Jennifer Rea, who showed the premises in her capacity as an employee of the Stevens’ letting agent; the response was that the owners were still occupying the premises, that they would fix up the deck prior to commencement of the tenancy.  The Spackman family did not move into the house until late October.  Mr Spackman moved in earlier, but for the first few weeks resided in a hotel, there being no furniture in the house.  He was given an “Entry Condition Report” completed by Jennifer Rea as at 23 August 2004 which he signed on 17 September 2004 and returned.  The defendants set great store by the omission of any comment in respect of “Balcony/Porch/Deck” (which is rather hidden by the form as but one of 14 items in the category “General”, which is alongside other categories for kitchen, lounge-room, bedrooms, and the like).  Significance is attached to Mr Spackman’s own failure where the form invited him to make comments on the agent’s report, to say anything about the deck.  He made comments about other things.  It is taking too much from this document to conclude that the Spackmans had no complaint about the deck.

11. [11]
    It is accepted that Mr Spackman in attending the agent’s office to pay rent on at least one occasion made a complaint verbally along the lines of the July complaints. I accept his evidence that he made a further complaint in writing left at the office. The lady who took over management of the letting, Marion O'Garey, had no recollection of this; she told the court the relevant files of the agent had been consumed by white ants. She was bothered enough by the Spackmans’ persistent complaints about the deck to advise that they complete a “Notice to Remedy Breach” under s 192 of the Residential Tenancies Act, which was done on 17 November 2004.  The notice required “Emergency Repairs to a dangerous situation not completed within a reasonable time i.e.: pool decking”.  While the defence case sought to allege that complaints had been made about particular timbers or parts of the deck, never including the vicinity of the Bali hut (Mrs Spackman acknowledged that area had not been specifically mentioned), I accept that the complaints were about the deck “generally”; this Ms O'Garey appeared to acknowledge, telling the court that she thought the Spackmans wanted the entire deck replaced, and for aesthetic reasons (she thought they were unreasonable):  T 2-13.  It is highly unlikely that the Spackmans, who spent a very limited time residing in the house, vacating it well before the end of the term to move to a new residence that had been purchased, would want the deck replaced for aesthetic reasons.  Although it is difficult to be confident about the terms of spoken complaints, the notice to remedy breach is explicit about safety and I am confident that was the tenor of all complaints. The problem was deterioration in the integrity of the decking with the timbers becoming loose from fastenings with shrinkage; boards were splitting, more importantly from the point of view of safety, were rising at their ends (to the extent of inches); nails were protruding.

12. [12]
    At some point, when the agents had got on to Mr Stevens, the first defendants took this seriously. They engaged Mr James to come along to see what needed to be done; the assessment was that boards needed to be replaced. Mr James returned with boards he apparently had left from the original job (he estimates four), but this was insufficient; he had to acquire more timber from a supplier and continue the exercise (he estimates with another four boards); there seems to have been a good deal of re-nailing. At some point in the story, Mr Stevens painted or lacquered the deck, something which Mr James had recommended from the outset for purposes of preserving the timber and protecting it from the ravages of the elements, especially moisture, but which the first defendants did not do, preferring a “natural” appearance.

13. [13]
    The two men were back after the agent passed on a report of Mrs Spackman’s injury. Mr James had more repair work to do; more nailing.

14. [14]
    The evidence is unsatisfactory as regards the chronology in respect of repairs done to the deck. The defendants refer to an early start, maybe even before the tenants moved in; nothing much turns on this. Given the broad convergence of Mrs Spackman’s evidence of the work she saw done on this deck and the defendants’ evidence about what they did, the probabilities are that nothing was done until after she moved in, if not until after the Notice to Remedy Breach.

15. [15]
    By reference to exhibit 9, Mr Hulles says that the broken timber depicted failed because of a knot which ran right across it on the diagonal mentioned above, causing unacceptable weakness. He says that the particular timber should not have been used at all. He identified in exhibit 9 another timber (three away) which he says exhibits the same deficiency. He was persuasive about this, in my judgment.

16. [16]
    Exhibit 15 is the last page of a statement which someone investigating the incident prepared for Mr James to sign. The author wished him to say:

“I also noted the board had broken in the immediate vicinity of a knot in the timber.  That is unusual in that the area of, and around, a naturally occurring knot is the strongest part of a plank of timber and not an area I would expect to wither at a faster rate or be weaker than the surrounding timber.”

Mr James crossed out the reference to the area around a knot being strong because, as he said, it was wrong:  a knot is a weakness.  He accused Mr Hulles of a counsel of perfection, expressing the view that Radiata Pine, the timber used, has so many knots that too much of it would have to be discarded.

17. [17]
    The court is not asked to decide whether anything about the original construction of the decking was untoward. The plaintiff did not set out to make that case. The case made is that a proper inspection following the complaints would have revealed the defect identified by Mr Hulles and it should have been attended to. Mr Stevens’ painting exercise was suggested to be another opportunity that ought to have been taken to inspect, discover the obvious defect (which I find it was) and attend to it.

18. [18]
    Case law identified by Mr Howe presents difficulty in the way of the plaintiff. He relied in particular on Emery v Foot [1997] QCA 404, a case of a collapsing deck; a party guest was injured.  Pincus JA’s reasons commenced:

“The primary judge found, in effect, that the collapse of the appellants’ timber deck which caused the respondents’ injuries was caused by deficiencies in the construction of the deck; the joists which supported the floor boards were inadequately secured.  But there was no evidence that the appellants were aware of this condition of the joists, which the judge held could not be detected either looking down on the deck or looking up at it from below.  Further, the judge held that a young carpenter (Payne) who inspected the deck within the week before it collapsed at the request of the appellant J E Emery, drew that appellant’s attention to some rot in a joint, but in Payne’s opinion, which the judge was apparently prepared to accept, Payne did not think the rot he observed had anything to do with the collapse of the deck, nor did he think the deck was in imminent danger of collapse.

The judge held that a reasonable person in the appellant’s position would, knowing of the rot, have caused a more thorough investigation of the deck to be made than that which Payne had made; at least implicitly, the judge held it was negligent not to have caused to this to occur before the deck was used again in any substantial way.

…

It has to be said that it is not clear why his Honour thought that a finding of rot in one bearer causing a 1 centimetre drop in that bearer would have necessitated the response mentioned.  An exterior timber deck, close to the Queensland coast, as was the deck in question, would no doubt, be likely to be found on inspection to have a soft spot or two; what the judge has concluded is that the finding of one such spot is enough to require the owner to have the deck thoroughly (and promptly) inspected by a person with appropriate qualifications, not an ordinary carpenter like Payne.  That conclusion is not based upon any expert opinion, but depends upon his Honour’s own view.  I respectfully disagree; I cannot think that a person who failed to be sufficiently alarmed by the finding of the slightly dropped bearer to act as his Honour mentions would be guilty of negligence.”

Cullinane J (with whom Davies JA agreed) concluded his reasons:

“This process of reasoning depends upon a finding of fact which for reasons already given cannot in my view stand and this is sufficient to dispose of the appeal.

However it seems to me that even if the condition which Payne observed did give rise to a foreseeable risk of injury to someone coming on the deck and accepting the conclusion that as a consequence of the steps which might be required of an occupier in addressing the risk the injury to the respondents which arose from a different and unsuspected fault might in the events that happened have been avoided it is impermissible to ascribe a causal connection between the breach of duty arising from one defect which was known to an injury arising from another which was not on the evidence known or foreseeable.  The position will be different if the risk which was realized was so closely connected to the risk to be guarded against as to be able to be regarded as being within the scope of that risk but that is not the case, in my view, here.”

19. [19]
    My mind has fluctuated in respect of the plaintiff’s proving a case in negligence. If the claim had been brought on a statutory basis, as in Gration, liability would have been clearly established.  When addresses were completed, I had it in mind that judgment would be for the defendants.  The matter was reserved to allow Mr Howe the opportunity to locate and inform the court of a decision pertinent to the damages claim in respect of whether anything could be included for future paid assistance, the practice being that it is convenient for a trial judge to assess the plaintiff’s damages even if the claim fails.

20. [20]
    Mr Pope’s response to the barrage of authority excusing owners/occupiers from liability was to rely on the closing paragraph of Wilson J’s reasons in Gration¸ which in my view, did not assist him, being a statement about the Act.

21. [21]
    As the evidence unfolded the focus came to be more and more on “raised timbers” which I had taken to indicate a tripping hazard. Thus, when Mr Spackman was cross-examined at page 46, there were two questions in terms of “raised timbers” (one in association with “sagging”). When Mr Stevens gave evidence-in-chief at page 54 he mentioned a complaint relayed through the letting agent that “there was some bits of wood protruding, or nails protruding from the decking and the decking appeared in poor condition in certain areas.” He went out to inspect “the complete deck and areas around the pool. There was … some nails poking up through the deck … next to the pool where … there was a lot of water and one or two … parts of the deck, there was certain – slight cracking towards the nails, so that’s about all basically.” He said at 55:

“Okay.  Did you inspect the entire deck? – We did inspect the whole deck.

Did you inspect the deck around the Bali hut area? – Certainly did, yes.

All right.  Could the witness be shown Exhibit 4 and those photographs be returned?  Did you inspect the area around where the Bali hut appears in that photograph? – Yes, I did.

How did the decking appear in that area? – The decking was completely solid in that area.

Did it appear to you that there was any issue with deterioration or rotting? – Absolutely not.

Did Mrs Spackman make any complaint to you about that area? – Certainly not.  No.

Did it appear to you if one was using the area of sweeping that there was a problem with it? – Definitely not.

And you didn’t carry out any repairs to that area? – No.  None were required.”

22. [22]
    The accident on January 18 2004 and the damage shown in Exhibit 9 shows that that assessment was disastrously wrong. I do not accept that any assessment of a proper standard could have been made in “that area” either when Mr Stevens opined that it happened (around September 2004) (Transcript 1-53 L57) or when one ought to have been done after the Notice to Remedy Breach.

23. [23]
    Reference to the evidence earlier presented shows that cracking was mentioned in the Particulars; see Mr Howe’s questioning of Mrs Spackman at page 18 where he quoted Further and Better Particulars to the effect that some of the decking “was raised by several inches and some parts of the decking was cracking and sagging and quite dangerous.” The earliest account we have from Mrs Spackman is a statutory declaration of 20 June 2006. The document was an omnibus response in a single answer to a series of questions, which Mr Howe reproduced in his written outline of argument:

“1. With respect to the verbal complaint made on 23 July 2004, what specific defects in the decking were raised and with whom?  Please specify in as much detail as possible the observable defects in the decking at this time and their location relative to the site of the accident.

My husband and I and our 2 kids were present at the premises when we inspected it with one of the letting agent’s female employees.  We were told by the female employee that the owners of the property were still in the process of moving things out when we inspected it.  Apparently, the regular property manager was not available on this day, and the female employee made a point of saying that to us at the time.  We met the woman on site.  We inspected the whole house.  There were a range of other defects inside the house which are not relevant to this claim.

We and the female employee all walked out onto the decking at the rear of the house.  As we walked across the decking, we could feel loose timbers “give” under us.  We both commented to the agent that the deck generally needed to be fixed and that it seemed to be in a dangerous state.  We were told by the female employee that the “owner will look after this”.  There were a number of decking timbers sticking up some 2 or 3 inches throughout the deck, and there were raised and exposed nails and screws all over the deck.  Of the 150 or so boards, perhaps at least 20 of them were quite obviously dried out and cracked and sticking up throughout the deck, including the area of the accident.

The owners were not on site at the time of the inspection on 23 July 2004.

Subsequently, a tradesman (who was apparently a friend of the owner) attended the premises and fixed a couple of the decking timbers.  However, he told us that he did not have enough boards with him at the time to be able to fix all of the problems, and that he had to check with the owner about completing the rest of the work, and he said that he would be back to fix the rest of the deck.  The owner and the tradesman returned several days later and they replaced 1.5 boards and spent several hours screwing boards down, but after this there were still several boards sticking up especially around the pool edge.  The tradesman also told us, on the first occasion when he was there, that the tradesman intended to tell the owner that he should come and paint and treat the deck.  The owner did later attend (before my accident) and painted over the deck, including those defective timbers which we had previously identified.  The painting of the deck was only with an oil or lacquer, and did not really do anything to fix the defective timbers or to conceal any of the problems with them.

Both the owner and the tradesman came back to the premises, after my accident, and saw the broken board which had caused my injury.  I had simply placed a chair over the top of it so that no one else would walk on it.  The owner and the tradesman looked at the broken board, then straightened it up again so that it looked like it was a whole board again, but the problem was never fixed.  They just left it as it was.”

24. [24]
    I accept Mrs Spackman’s evidence and her assertions as set out above. (In respect of the last paragraph, to which Mr James took exception, I am satisfied that the repair to the Exhibit 9 damage which can be seen in the form of the painted board depicted in Exhibit 14 was effected on a return trip, possibly after the Spackmans had vacated the premises (well before the lease terminated).

25. [25]
    In evidence-in-chief, the plaintiff described what the deck area around the swimming pool looked like:

“The deck at the actual pool edging there was tiles to the actual pool then the decking came off the tiled area.  In most areas especially towards the stair end or towards the cabana end, there was numerous boards that were lifted two inches at least, above the tiling so you got out and it wasn’t an even surface.  There was numerous boards that appeared to have cracks.  It looked very dry and it was quite a concern to both my husband and myself.

And did you say anything to the real estate agent to that fact? -- My husband mentioned that he was concerned with the decking and we were assured that because the owners were in the process of moving out, that that would be attended to as would the cleaning of the house.” (Page 8.)

26. [26]
    In cross-examination regarding 23 July 2004 (at page 15):

“We mentioned that we [were] concerned at the state of the decking and there was a few things inside the house that needed repairs as well … she assured us that it would be fixed prior to us moving in.

Well what did you say about the decking? -- We were concerned with the raised edges and the fact that there appeared to be some cracked or – or loose boards.”

27. [27]
    She could not recall whether the word “dangerous” was used. Questioning continued:

“And who said the words?—My husband first brought it up and I mentioned that there was quite a few raised boards at the pool edging.

And whereabouts, just near the pool edging? —No.  There was in front of the cabana … there was quite a few boards there that appeared to have a crack down the – centre of them.  Or you’d get wide gaps where they were obviously quite dry.”

28. [28]
    It is worth noting that if anyone was in occupation of the house at this time it was the first defendants. They had every opportunity to notice the defects or matters of concern that troubled the Spackmans. It cannot be said that they were dependent on notice from anyone else of matters requiring attention.

29. [29]
    They appeared to be mounting a case that the deck had been fixed up much earlier than the plaintiff had it (sometime after mid-November 2004). The cross-examination contains the following at page 24:-

“Is the owner there, Mr Stevens? – He was there, yes.

Do you speak to him? – I did, I took them both a glass of water, it was a very hot day.

All right.  Now, can I – you say this was after the notice to remedy breach in November? – Yes.

Right.  Can I suggest that it was beforehand; would that be the case? – No, I don’t believe so.

Could it be the case because you seem to shrug your shoulders when I first asked that question? – Five years ago is a long time.

No, that’s fine, I’m not being critical but what I’m putting to you is that in fact when you see Mr James and the owner Mr Stevens, it’s before the notice to remedy breach in November? – It’s possible.

All right.  And they replace about four boards, or Mr James does? – I don’t know the exact number but a few were replaced.

And it’s in the – it’s in the area – it’s in the area where you’ve marked on that photograph?  Exhibit 2.  So, it’s in that area, or don’t you know? – Yes.

I suggest you never complained about any problem with any boards in the area where you say you fell.  Is that correct? – Yes.”

30. [30]
    And at page 28:

“Now, when James and the owner are there, I suggest – I suggest you make no complaint about any of the decking in any other – in any part of the – premises and, in particular, nothing around the Bali hut area, do you – you say nothing to the owner or James? – they were there to repair it.

Mmm.  And, the owner indicated to you that’s why he had James there, didn’t he? – ‘Cause they said they were there to have a look at the deck and fix it or repair anything that required to be fixed.  As to what parts, I don’t know.  As I said, I didn’t watch them.  I did offer them a glass of water, but I don’t recall have any lengthy conversations with the owner, no.”

31. [31]
    Mrs Spackman described the accident in the following way (having not noticed an erroneous identification of the relevant month in Mr Pope’s question):

“I was sweeping the deck in preparation for a real estate inspection, ‘cause there was quite a lot of trees on the park side so it looked an absolute mess.  And as I was sweeping at the side of the cabana, I heard a crack and felt something give and – I mean, there was lots of leaves, I wasn’t sure if there was actually something in there or not, so I did jump out of the way and on landing on my knee, it twisted and it was just immediate pain.”

32. [32]
    In this review of the evidence I would note also Mr Spackman’s description of the deck when he first saw it on 23 July 2004:

“The deck was – it seemed dry, it seemed cracked, to me there were cracks in it and there was areas where – where the boards were lifting and there were areas where you could walk, you could hear it squeak and that sort of thing.  Generally speaking, it looked like it was weathered and pretty deteriorated.

And there was an agent at the inspection? – Yes, there was.

And did you make any complaints to the agent about the deck? – We raised the concerns with the deck and a few other bits and pieces around the place as well at the time.”

33. [33]
    References to cracked boards have a significance that did not become clear until Mr Hulles was in the witness box. Although his name was mentioned in Mr Pope’s opening, it was not opened what his evidence would be. The relevant timber failed, broke or cracked along the line of a knot which traversed the full width of the piece so that, in his opinion, it ought never to have been used. Cracking is a suitable description for what is depicted in Exhibit 9. It is a suitable description for the failure that happened leading to the plaintiff being injured. I accept from Mr Hulles that it was an obvious defect in circumstances where the soundness of the deck in general had been complained of (as the Spackmans say and as Ms O'Garey confirms – as does Mr Stevens’ supposed inspection of the whole deck). I cannot accept Mr Howe’s proposition that there was some onus on the plaintiff to identify the particular defective timber, or even its location within a few boards. Mr Howe’s authorities, which seemed so compelling during his address, relate to defendants who had notice of some particular deficiency in a balcony or deck which the court considered insufficient to constitute notice of some wider problem. In Emery it was considered that an isolated instance of rot in one bearer did not require the owner to have the entire deck thoroughly (and promptly) inspected by a qualified person:  it was not considered negligence to fail to be sufficiently alarmed by the finding of a single slightly dropped bearer.  In a case said to be Gregory Stewart Pty Ltd v Domira Pty Ltd Mr Black, whose visitor was injured in a balcony collapse gave evidence of its being as “solid as a rock (he saw nothing which caused him to think any closer inspection [of the underside joists] was required [other than what came in his field of vision when negotiating a spiral staircase]).”  Short v Barrett [1990] NSWCA 164 emphasised Dr and Mrs Short’s entitlement to assume in the house was “perfectly safe unless and until they actually know it is unsafe or else receive a warning that it may be unsafe”.  This is the burden of Mr Howe’s authorities, as set out by him:

“(a) Emery & Anor v Foot & Anor^[1]

2. (b)
   Johnson v Johnson^[2]
3. (c)
   Baker v Gilbert^[3]
4. (d)
   Stannus Graham^[4]
5. (e)
   Short & Anor v Barrett^[5]
6. (f)
   Australian Safeway Stores Pty Ltd v Zaluzna^[6]
7. (g)
   Gove v Black^[7]
8. (h)
   Gregory Stewart Pty Ltd v Domira Pty Ltd^[8]
9. (i)
   Auluwalia v Robinson^[9]

34. [34]
    Mr Howe’s supplementary written submissions of 26 February 2010 contain an additional reference bearing on the liability issue, Palmer v Finnegan (2010) QSC 64, a collapsing balcony railing case.  Significant in the defendants’ avoidance of liability was a lack of warning.  The legal principle applied in such cases (the relevant one here) is the dictum of Deane J in Hackshaw v Shaw (1984) 155 CLR 614 reproduced in the headnote in Zaluzna:

“It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or both of a special duty qua occupier and a general duty of care was owed. It is necessary to determine only whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff.  A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.  The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the entrant or to the class of person of which the entrant is a member.  The measure of the discharge of the duty is what a reasonable man would do in the circumstances by way of response to the foreseeable risk.”

35. [35]
    The reasons in Palmer v Finnigan contain the following:

“[37] The defendants submit that given the relevant applicable law, the plaintiff’s case, as it is pleaded, cannot be sustained and must therefore fail.  I agree with this submission.

[38] Whilst there was clearly a crack in one tile on the balcony, this was not indicative of any structural defects in the balustrade, neither was it indicative of any construction defects or design faults in the balustrade.  The defendants were entitled to assume that the premises were safe.  This conclusion is based on the following specific findings:

1. (a)
   there were no signs or any significant warnings indicating that there was any defect such that it was obvious to a normal householder;

2. (b)
   the balcony was rarely used because of its small dimensions and inferior outlook; and

3. (c)
   neither defendant had any relevant experience or training in safety, building or construction;

4. (d)
   the work on the balustrade had been carried out by tradesmen.

[39] On the basis of the principles outlined in Zaluzna, I do not consider that there was any legal obligation on the defendants to investigate hidden defects. On that basis, there was no duty to effect repairs, or to obtain a safety expert’s opinion as to the structural integrity of the balcony railing when there was no warning that there was a possible defect in the balustrade.”

36. [36]
    A certain amount of consternation arose when it proved impossible to track down a decision attributed to Mackenzie J quoted from extensively in Mr Howe’s original written submissions.  This proved to be Gove v Black [2006] WASC 298, a decision of Templeman J.  There had been a disastrous balcony collapse at a New Year’s Eve party.  One Strawbridge played a role analogous to the second defendant’s here, as the reasons suggest:

“[403] Mr Strawbridge is a carpenter who worked as such from the early 1950’s until his retirement in August or October 1998.  I accept all of his evidence.

[404] Mr Strawbridge carried out small jobs for Mr Black at unit 1 from about 1995 onwards.  This mainly involved work inside the unit.  However, in early June 1995, Mr Black asked Mr Strawbridge to repair one of the battens forming the deck of the balcony which had a ”spongy” feel when walked on.  The batten contained a knot and Mr Black wanted it replaced.  Further, Mr Black asked Mr Strawbridge to check all the other battens.  He did so, and noticed that a longer batten situated towards the centre of the balcony had split along its length.  Mr Strawbridge drew this to Mr Black’s attention and was asked to replace the long batten as well.

[405] Mr Strawbridge’s evidence was that at the time he was standing on the balcony to replace the battens, there were no tell-tale signs of vibration or movement which would have indicated to him that there was any deterioration underneath the balcony, or anything of concern from a safety perspective.  Mr Strawbridge recalled that he walked round the entire surface of the balcony and detected no movement in it.  He recalled lifting his weight on to the balls of his feet and sinking down on to his heels to test how solid the balcony felt.

[406] Mr Strawbridge said that when he was replacing the battens, he observed the joists in the area where they had been removed.  He recalled seeing a short section, perhaps 90 millimetres across about five joins where the longer batten was replaced.  In relation to the shorter batten, he saw a 90 millimetre section of about three joists.

[407] Mr Strawbridge’s observation was that the joists were in a suitable condition and were not showing any signs of deterioration or moisture penetration.  There were no obvious signs of weathering and no evidence of the wood being “soft or puffy”.  Mr Strawbridge was able to nail the new battens into the joists.  He said he would have been unable to do this if the joists had been rotten.

[408] Mr Strawbridge said that from time to time, when he was working outside the unit on the ground floor, he would have casually looked up at the underside of the balcony.  However, at no time did he ever see anything which alerted him to any defect in the joists which would have led him to conclude that the balcony might be unsafe, or even that it should be checked.”

37. [37]
    It was not a case in which the dozen or more injured party guests must succeed against their host, Mr Black, or fail.  There were multiple defendants, of whom the architects and the local government were held liable.  The balcony failed because inferior timber (Oregon pine) was used rather than the Jarrah specified by the architects (who had made insufficient fuss about the substitution); his Honour found the primary causes of the collapse were use of Oregon for the joist and supporting plates and inadequate design of the southern supporting structure of the balcony, matters which were not obvious to Mr Black or Mr Strawbridge.

38. [38]
    I think the present circumstances are different. What went wrong here was not attributable to some hidden defect but a defect or weakness which (on Mr Hulles’ evidence) was obvious and something which came foursquare within the scope of the complaints/warnings of the Spackmans.  Essentially, they wanted a safe surface to move about on.  Deficiencies in the defendants’ inspection in my opinion are established by the supervening accident.  Mr Hulles’ evidence is persuasive that the purported inspection missed an obvious source of foreseeable damage to users of the deck to whom the defendants had a duty of care.  Unfortunately, the Spackmans’ assessment of the problems was shown to be correct.

39. [39]
    My conclusion is that the first defendants are not in the favourable position of the relevant defendants in such circumstances. They were in possession of multiple complaints or warnings, and most recently the Notice to Remedy Breach four months after the initial complaint, two months before the accident. The safety of the decking generally was called into question; it was not for the plaintiff to identify specific problem areas on pain of losing any entitlement to complain if some damage was caused by them. It does not appear that Mr Stevens had any difficulty in obtaining access for himself and Mr James whenever it might have been convenient, notwithstanding the limitations imposed in the Act upon a landlord’s access. The Spackmans’ complaint, of which Stevens was made aware, was about the walking surface of the deck; that is what failed in the accident. The case is unlike one in which a defendant is made aware of a complaint or problem regarding the walking surface but an ensuing accident is attributable to a failure elsewhere, in supporting structures or balustrades, for example. Here, the observations/complaints of “cracking” anticipating and covered the very incident that happened. If the defendants’ case as put to the Spackmans that the deck was inspected and worked on by them about September 2004 before the Notice to Remedy Breach was correct, their situation would be more difficult, as they would be on notice that what they had done was insufficient.

40. [40]
    In the circumstances, I do not think the first defendants can be heard to say that they took all reasonable steps to guard against foreseeable risk of injury to users of the deck so far as their liability to the plaintiff is concerned. They brought proceedings for contribution against the second defendant which were very little mentioned at the trial. Mr James filed nothing by way of defence, but it was accepted that he was free to contest the contribution/indemnity aspect.  He never really put up any basis for contest.  One may speculate that he could have done.  Ms Spackman (T 1-27) said Mr James told her “he wasn’t sure how much the owners wanted to replace” – suggestive of Mr Stevens determining what trouble and expense ought to be gone to, rather than Mr James.  The court has no basis for a full understanding of arrangements as between the defendants; in the ordinary course, assuming Mr James was the skilled person the first defendants turned to, to ensure that their duty of care towards the Spackmans (plaintiff in particular) was carried out, Mr James let them down.  It seems Mr James (looked to as the expert) approved the state of the deck.  It is mere speculation whether the Stevens’ failure to paint or seal the deck in accordance with Mr James’ advice had any relevant consequences.  It follows that, if the first defendants want it, they ought to have a judgment against him entitling them to a full indemnity for the amount of damages and costs they have to pay to the plaintiff (who has established her entitlement against them in that regard), together with their own costs.

41. [41]
    It should be observed that a number of the photographic exhibits show fencing in close proximity to the pool, tending to give an impression that the deck was divided into discrete areas. That notion might give some colour to a proposition that, say, only timbers close to the pool may be examined. It is clear that the fencing mentioned is of recent origin and that at relevant times the “pool fencing” was remote from the pool, on the wall of a raised garden bed, so that the deck was one single open area, rather than, as it subsequently became, a number of separate enclosures.

42. [42]
    The defendants here do not have the comfort of evidence that, as constructed, the deck met or was believed to meet building standards. Their evidence as a whole was surprisingly sparse as to the implications of cracking, for example, and Mr Stevens’ impressions of the soundness of the deck, from use of it; it appears to have needed a surprising amount of attention; one wonders how assiduously it had been maintained.

Quantum

43. [43]
    The parties are apparently agreed on the following special damages:

• Out-of-pocket expenses (pharmaceuticals etc) $152.60 ($2,005 to date);
• Travel expenses $322.00 (all in 2005);
• Medical expenses $2,607.15 (all in 2005 except for $70 on 25 January 2006) $70 was paid as to $31.60 by Medicare (which paid $745.25 overall) the balance being paid by the plaintiff, who paid $1,490.00 overall.  Private health cover accounted for $371.90 overall.

44. [44]
    I would appreciate it if the parties could agree and advise what orders may be appropriate (other than judgment for the plaintiff for those sums) and what interest should be allowed.

45. [45]
    The parties are far apart regarding past economic loss. There is a claim for $30,624.70 from early 2005 to 17 July 2006 when the plaintiff found work with the Red Cross Blood Bank as a nurse (phlebotomist); there is a claim to a further global sum of $20,000 “for the loss of potential earnings for over-time and/or weekend/evening shift work and/or other allowances as an Endorsed Enrolled Nurse”.

46. [46]
    The plaintiff is in fact earning more than she has ever done. She had work in a Doctor’s surgery in Western Australia which appears to have come to an end on 24 June 2004.  She had got back to work once the children were old enough.  The family’s move to Queensland appears to have disrupted employment in the West; it was likely to disrupt employment after the move, while the family settled in and suitable employment was found.  That Mrs Spackman may have had a mind to work and to increase her hours beyond those worked in Perth does not mean she could have counted on getting the employment she wanted.  She felt able to do a full shift by March 2006, but did not start with the Red Cross until late July; her first application to them was unsuccessful.  The situation is too uncertain to permit of arithmetic calculation.  I think there should be a global allowance (inclusive of interest) of $20,000.  This amount takes account of lost superannuation entitlements.

47. [47]
    So far as future economic loss is concerned a substantial claim is made on the basis of 20 years lost earnings as a Registered Nurse, which was pleaded to bring in an additional $215.00 per week and additional superannuation benefits of $28.00 per week compared with what the plaintiff now earns. It was disappointing to hear from her that in Queensland there is no possibility of a person who is not physically fit gaining the practical experience that is a prerequisite of qualification as a RN.  If that is truly the situation, there must be lost to the higher echelon of the nursing profession many who could contribute in spheres not requiring ability to do heavy work or (pertinently to the plaintiff’s situation) ability to have confidence in the stability of one’s knee.

48. [48]
    There are academic requirements to be satisfied as well. The court cannot be satisfied that the plaintiff would for a certainty have the opportunity, ability and application to achieve that career change. Mr Howe accepted that there should be some global allowance made; that, I think, should be $40,000.

49. [49]
    No Griffiths v Kerkemeyer claim is pursued, the plaintiff’s circumstances not satisfying s 59(1)(c) of the Civil Liability Act 2003.  A claim is pursued for future paid services of one hour per week at the agreed rate of $25.00 per hour until age 70, this based on the following paragraph from Mr Zietek’s report (he being an occupational therapist):

“9.3 Current

Ms Spackman reports that she continues to avoid mowing.  She states that this is due to the feeling of instability and frequent “giving way” of the left knee when walking over uneven ground.  Her husband and son provide assistance by digging holes for her to plant trees.  She describes experiencing swelling and aching in the left knee with long periods of work in the garden.  She describes receiving assistance with cleaning the bathroom (scrubbing bath and shower recess) and mowing the lawn.  She does not fill the laundry basket as much when she carries it to the line and she will sit on the ground to avoid kneeling and squatting when cleaning out lower cupboards.  It is my opinion that she requires in the order of 1 hour of assistance per week with the heavier aspects of garden and yard maintenance, and house cleaning.”

50. [50]
    I am not satisfied that this justifies a claim for paid assistance for a woman living in a family situation with a husband and children who are of high school age.

51. [51]
    Turning to general damages, the earliest report is Dr Rackemann’s:

“Thank you for referring this woman for assessment today, the 26^th August 2005.

She is a 38 year old enrolled nurse who also does house duties.

She presents with her left knee collapsing forwards intermittently; she says that this will occur just with normal walking activities.

She denies significant pain at this knee or swelling.

She says that these symptoms continue to occur, following a twisting injury to her left knee in January 2005; at this time she was cleaning a timber deck and one of the boards broke.  She describes jumping and twisting her knee at this time.

Her significant past history is that in 2003 she had surgery to her left knee; she says that she had lateral release to the patella and some cartilage surgery performed by Mr Soo Tee Lim in Perth.

She subsequently returned to netball activities.

I understand that she has been treated by Dr Vertullo following her injury to the left knee this year; she has had a MRI examination, which confirmed previous lateral release surgery; the MRI suggested normal ligament laxity and no evidence of a meniscal tear.

She has had physiotherapy with David Battersby and is currently having physiotherapy with Richard Newton.

My understanding is that non-operative management of her symptoms has been recommended.

On examination today, she stands with neutral alignment of her left knee.  She has a normal gait.

She has patellofemoral discomfort with attempting to squat.

There is mild left patellofemoral crepitus; there is normal tracking of the patella with active extension of the knee from the flexed position.

The patella appears satisfactorily released following her past lateral release surgery.

There is no effusion at this knee.  There is normal ligament laxity and full range of movement.

There are no specific signs localizing to the menisci.

She has a pain free range of movement at the left hip.

Plain radiographs show no significant abnormality.

My assessment is that she continues to be symptomatic of quadriceps inhibition; I would expect her symptoms to be controlled by appropriate strengthening.

I am unable to demonstrate any specific damage that may have occurred at her recent injury, or any permanent partial impairment as the direct result of this injury.

Her current symptoms are consistent with the changes noted at her patellofemoral joint at previous surgery in 2003.”

Unfortunately, Dr Rackemann was unable to give evidence.

52. [52]
    Dr Vertullo (who was said to have treated her) saw the plaintiff on 3 October 2005 and reported:

“HISTORY OF CURRENT INJURY

The patient describes an injury of her left knee while at a rental property in January 2005.  A wooden board broke under her foot and her lower extremity did not go through the resultant defect in the flooring but as a result of the floorboard breaking, she landed awkwardly and twisted her left knee.  She had an onset of pain since that episode which she describes as ongoing and moderate in nature.

In addition to the pain, she describes episodes of the knee giving way multiple times.  In terms of the severity of giving way of the knee, she describes this as giving her more difficulty than the pain in the joint.

PREVIOUS HISTORY

The patient underwent surgery in 2003 by Dr Soo Tee Lim in Perth.  The patient had a history of patellofemoral instability and anterior knee pain and underwent a left knee arthroscopic lateral release and a chondroplasty.

I had the opportunity to review Dr Soo Tee Lim’s operative notes from the surgery and these state that the patient had a chondral defect of Grade IV, i.e. which is a severe full thickness chondral defect on the trochlear, for which a chondroplasty was undertaken and she also had a loose body in the knee.  The patient relates that after the abovementioned surgery she stopped having episodes of patellar subluxation and her pain was significantly improved.  Her only difficulty after the surgery was an inability to kneel directly on the joint.  The distal pulses were intact.

INITIAL EXAMINATION

On initial examination, I noted the patient walked with a normal gait and had neutral alignment to her lower extremities and there was evidence of a positive left patellar apprehension sign with evidence of prior lateral joint release surgery.  Her Q angle was increased and there was some tibiofemoral joint line tenderness medially.  Meniscal provocation signs were equivocal and the ligamentous structures, particularly the ACL, posterior cruciate ligament, medial collateral ligament and posterolateral corner were intact.

INVESTIGATIONS

I arranged for the patient to undergo an MRI scan which was reported by Dr Rob Mason and a copy of this report is enclosed.  Essentially the MRI confirmed that the patient had undergone previous patellofemoral surgery and there were no other internal derangements, particularly with normal meniscus.

MANAGEMENT

The patient was initially referred to David Battersby for a rehabilitation program of the patellofemoral joint.  After this she was referred back to me because of failure to progress.  I then reviewed her again not he 18^th July 2005.  I then referred her to Mr Richard Newton, physiotherapist for a final attempt at improvement through non operative measures.

I last reviewed the patient on the 30^th September.  I noted that the patient had improved since my last consultation with her in July.  Her patellofemoral pain and irritability was resolving but was still complaining of episodes of giving way.

DIAGNOSIS

1. Pre-existing patellofemoral instability which was resolved by patellofemoral surgery in 2003.

2. Pre-existing trochlear defect which underwent clinically successful surgery in Perth.  The trochlear would have remained abnormal but was asymptomatic for the patient until the 2005 injury.

3. Patellofemoral subluxation/dislocation as a result of the January 2005 injury.  The patellofemoral instability is ongoing and the patient is still involved in an active rehabilitation program.

4. exacerbation pre-existing trochlear defect, which is still undergoing therapy and is not stable and stationary.

The patient’s condition is not stable and stationary at this stage.  Further benefit may be gained through the ongoing patellofemoral rehabilitation program.  I am reviewing the patient in early 2006.  At that stage the patient will be stable and stationary and I will be able to calculate a permanent disability as a result of the abovementioned injury.”

53. [53]
    In due course the next report came:

“Her diagnosis remains unchanged from that detailed on my report of 3^rd October 2005.  Her condition is now stable and stationary.

She is still getting episodes of instability of the patellofemoral joint.  Because of feelings of instability and pain she is unable to return to nursing and is currently not working.  She cannot undertake her usual athletic pursuits now [nor?] can she play actively with her children.  She is seeking re-employment in a light semi-skilled sedentary type occupation such as working at the blood bank or in a pathology blood collecting service.

As a result of the patellofemoral subluxation/dislocation which has occurred as a result of the January 2005 incident utilising the AMA Guides for the Evaluation of Permanent Impairment 5^th Edition, Table 17-33, the patient has a 3% whole person impairment and a 7% lower extremity impairment.

This is the most appropriate way to assess her for permanent impairment, as a result of the injury in January 2005.

Note that the pre-existing patellofemoral articular surface damage has not been included as part of the permanent assessment as this predates the January 2005 incident.”

54. [54]
    The most recent assessment is Dr Boys’; he saw the plaintiff a year later at the request of the first defendants’ solicitors and reported:

“Opinion

It is my opinion that Ms Spackman experiences anterior knee strain, insecurity of the left knee and episodic swelling of the articulations as a consequence of osteoarthritis.

This lady has suffered patellofemoral injury in the course of sporting activities in March 2003 and I note the subsequent surgical findings indicating chondral damage to the femoral trochlea, loose body formation and abnormal patella dynamics requiring a surgical procedure releasing the lateral retinaculum to allow normal patella tracking.

This lady would appear to have rehabilitated the knee and does not describe significant disability in the period prior to the claimed incident on 18 January 2005.

It would be my opinion that Ms Spackman suffered a soft tissue strain to the patellofemoral articulation and aggravation of the degenerative condition evidence within this articulation in the course of the unguarded jump performed on the pool decking on 18 January 2005.  This lady would not appear to have suffered patella dislocation or any significant intraarticular derangement at that point.

This lady has however experienced an episode of synovitis and associated local deconditioning of the quadriceps musculature in the period following this incident requiring a further cycle of quadriceps muscle rehabilitation and physiotherapy treatment.

It would be my opinion that Ms Spackman suffered a temporary aggravation of a degenerative condition of the left knee as a consequence of the incident on 18 January 2005.

The pre-existing changes within the patellofemoral articulation are significant and ongoing symptomatology would be anticipated in the light of the documented pathology evident (pre-dating the subject claim).

Ms Spackman would be assessed as suffering a 5% impairment of the left lower extremity (2% whole person impairment) as a consequence of retropatella osteoarthrosis and patella instability (Table 17-33).  It would be my opinion that the impairment evident would have existed notwithstanding the injury sustained on 18 January 2005.  Any soft tissue strain sustained to the left knee on 18 January 2005 has not given rise to additional quantifiable impairment.

I note this lady’s past employment as an enrolled nurse.  It would be my opinion that the injury sustained on 18 January 2005 would not preclude the studies being investigated by her at that time (the medication endorsement course for enrolled nurses).  I note this lady was not in paid employment at the time of the incident on 18 January 2005.  Any specific work incapacity associated with soft tissue strains sustained to the left knee on that date would have resolved within approximately 4 to 6 weeks although some anterior knee strain symptoms would have been ongoing subsequent to that time in the course of this lady’s program of quadriceps rehabilitation.

Ms Spackman will, with the passage of time, develop progressive evidence of patellofemoral osteoarthrosis.  This lady’s propensity to post-traumatic osteoarthritic degenerative change has resulted from injury sustained in march 2003 and may, in the medium to long term, initiate a requirement for further surgery to the knee such as retropatella chondroplasty or, in the worse case, patellectomy.  It would be my opinion that the strain sustained on 18 January 2005 has not given rise to any permanent aggravation of the degenerative condition evident or any additional requirement for future treatment which would not have been present in any event.”

55. [55]
    Although Dr Boys may be thought to have an advantage, in coming last, I prefer the opinion of Dr Vertullo, who specialises in the knee, who had more to do with the plaintiff, and who considered her situation had resolved when he last saw her.  For the exercise of calculating general damages, for purposes of s 62 of the Civil Liability Act 2003, there is no suggestion from any party that the court ought to depart from a strict application of the injury scale of values stated in Schedule 4 of the Civil Liability Regulation, which s 2 requires the court to consider.  For the purposes of s 7, I think there is some element of an existing condition (doubtless attributable to playing netball).  I accept that, from the plaintiff’s point of view, after surgery in Western Australia, the problem settled down.  There is no reason to think she ought to have had a recurrence of long-term problems with her knee but for the incident underlying this proceeding.  Mr Howe submits there is an Injury Scale Value (ISV) of 7 under Item 139 in Division 12 of Schedule 4 – moderate knee injury.  Mr Pope submitted for 24, at the top of Item 138 serious knee injury.

56. [56]
    Division 12 is:

57. [57]
    An assessment of an ISV of 24 would plainly be excessive. On the other hand, the plaintiff had genuine persisting difficulties with instability in the knee which have been a matter of mystification for the various physiotherapists she has seen. Doing the best I can, I regard an ISV of 10 as appropriate. This works out in dollar terms at $9,800 ($5,000 plus $1,200, multiplied by 4).

58. [58]
    Apropos the claim for future paid services, Mr Howe referred to Xu v Thurgood [2008] QSC 288 at [45]-[46].  Ms Spackman’s case is no stronger in this regard than Ms Xu’s.  Kriz v King [2006] QCA 351 establishes that if the threshold of s 59 of the Civil Liability Act is not met, there can be no recovery for past or future gratuitous services.

59. [59]
    The parties will have the opportunity to make submissions to the court as to what orders are appropriate before orders are formally made.