DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff, Mr Horne, suffered injuries after he stepped into a defect in the surface of the road within the taxi feeder rank at the Brisbane domestic airport.  That occurred at about 2pm on 17 October 2002. He retained solicitors to prosecute a common law damages claim against the Brisbane Airport Corporation Ltd^[1]. In May 2004, Mr Horne changed solicitors - he retained Gilshenan & Luton Lawyers to conduct his case. The limitation period passed without a claim being filed. An application for leave to start a proceeding pursuant to s. 59(2)(b) of the Personal Injuries Proceedings Act 2002^[2] was refused. The present claim is against the defendants for damages for the loss caused by their negligence and breach of duty.

2. [2]
   I approach the case on the basis outlined by Brennan J in Johnson v Perez (1988) 166 CLR 351 at 371:

When a plaintiff loses his original cause of action by the negligence of his solicitor, what is the extent of his loss? He has lost the monetary compensation for his personal injuries which he would have received at the time when he would have received it but for the solicitor's negligence. That being the extent of the plaintiff's loss, a court which seeks to put him back in the "same position" must assess, as best it can, whether or not the cause of action would have yielded a judgment or a settlement and, if so, how much the plaintiff would have received and when. It may be necessary to conduct a trial within a trial to determine what the cause of action would have produced. That is what the cause of action was worth to the plaintiff.

3. [3]
   The parties have agreed I should adopt October 2007 (5 years after the event giving rise to the injury) as the notional trial date.

Uncontroversial facts

4. [4]
   I accept the following facts, most of which are either admitted on the pleadings or not controversial.

5. [5]
   The plaintiff was born on 18 March 1940. He was, at the time of the event at the airport, a 62 year old right-hand-dominant self-employed taxi driver. The defendants practised in partnership under the registered business name, Gilshenan & Luton Lawyers. The BAC occupied the Brisbane Airport, which included a taxi feeder rank.

6. [6]
   The taxi feeder rank consisted of a bituminised parking area, which was kerbed and guttered and covered by a fabric sail. It contained marked parking bays for up to 140 taxis. There was a line of leafy trees along a footpath on the western side of the rank. There was, as it was pleaded, a hole – a large triangular piece of concrete missing from a section of the gutter. Its greatest depth was 75 millimetres (the defence admitted only 50 mm).

7. [7]
   The plaintiff parked his taxi in a marked bay on the western side of the rank, the driver’s side near the kerb. He then ..

got out of the cab, went back to the boot and got out a banana. I walked up the footpath [to] the garbage bin, I peeled the banana while I was walking up there, started eating it, threw the skin in the bin, came back, finished the banana. I went back to the boot because I wanted to get a drink. As I stepped off the footpath I went down.^[3]

8. [8]
   He suffered injuries, relevantly, a torn supraspinatus tendon in the right shoulder and an adjustment disorder.

9. [9]
   The plaintiff got himself home but later called an ambulance and was taken to the Princess Alexandra Hospital. He was treated at the Emergency Department with analgesia and a sling, advised to see a physiotherapist and discharged. On 16 December 2002, he consulted Dr Mark Robinson, Hand and Upper Limb Surgeon. Dr Robinson administered a cortisone injection. On 14 June 2003, Mr Horne underwent surgery on his right shoulder, when Dr Robinson attempted to repair a 2 x 3 cm tear of the rotator cuff. The repair failed because the stitches were placed in an area of tendon with poor blood supply.^[4]

10. [10]
    The plaintiff consulted Murphy Schmidt Lawyers and instructed them to prosecute a damages claim against the BAC. He incurred costs and outlays of about $5,200 between October 2002 and 24 March 2004. Later in 2004, the plaintiff retained the defendants to conduct his claim. His materials were transferred to Gilshenan & Luton.

11. [11]
    In breach of the client agreement, and negligently, the defendants failed, among other things, to observe the requirements of the PIPA and to commence proceedings before 17 October 2005.

12. [12]
    On 27 July 2007, an application for leave to start a proceeding was refused.^[5]

The disputed issues

13. [13]
    The defendants argue the plaintiff has suffered no loss because any claim that should have been commenced on his behalf had no prospects of success. That was because there was no breach of duty by the BAC or any contractor to it. Or, if some liability could be established the prospects were slight. The plaintiff’s case would have suffered because of issues with his credibility. The defendants also contend that any claim would have been futile because the plaintiff’s damages would have been so little. In that regard, issue was taken with the amount of compensation that might have been awarded for general damages, for loss of earning capacity and for gratuitous services. And, he would be subject to a finding of contributory negligence. Finally, the defendants contend that the BAC had adopted an aggressive approach in denying liability such that there was no prospect of the plaintiff achieving a positive settlement before trial.

Relevant employment and medical history

14. [14]
    Mr Horne’s employment and medical history, as he told it in evidence – the way he told it - gives context to his present claim and helps evaluate it.

15. [15]
    He left school at the age of 14 years, completed an apprenticeship as a carpenter and joiner; went kangaroo shooting for a few years; returned to Brisbane and was a contract builder and then spent some years working for the Bonanza Steakhouse franchise. Over 7 or 8 years working for Bonanza he became Brisbane and Gold Coast supervisor. After that he bought a restaurant in the city, in partnership with his wife. After a couple of years, that business failed. He bought a truck and ran a fruit and vegetable business, driving up the coast of Queensland to Townsville, buying and selling as he went. He and his wife then had a fruit shop at Roma. He also conducted a bread run. The fruit shop business failed. At about the same time his house was burnt down. He sold the bread run and then the couple bought a motor home and travelled around. He did some work at a fishery at Tin Can Bay, staying there for about 3 years. In 1999, his marriage failed – suddenly, as Mr Horne described it:

I went up to Townsville to do - do a little bit of deckhand work on a trawler, just a one-off thing, and we were going to be gone a week to 10 days and we left and everything was rosy. My wife come out the front and kissed me goodbye, put her arms around me and said, "You have a good trip, darling, see you when you get home."  I got home about nine days later and walked into an empty unit. She'd taken off and took the lot.^[6]

16. [16]
    Mr Horne suffered a psychological reaction to the failure of his marriage. He deteriorated through lack of food and sleep to the point where he overdosed on Rohypnol tablets:

I did it at the church where we were married. Up on the front landing before the steps and I must have went in convulsions and rolled down the steps onto the front lawn of the church. A woman walking home there in the early hours of the morning saw me and I don't know whether she rang the police or rang the ambulance but the ambulance were there. I actually - I actually stopped breathing there and they revived me. They got me to the hospital pretty quick smart and I was DOA there and I was on life support and in a coma for four days.

17. [17]
    He recalled being in hospital for 4 or 5 weeks, treated with anti-depressant medication.

18. [18]
    Since 1994, Mr Horne received a disability pension:

And do you know why you were admitted to that type of pension?--  No. I don't have a clue. I went there to apply for a - unemployment benefit and the woman said, "Well, Mr Horne, we'll put you on a pension."  I said, "What sort of pension?"  She said, "A disability pension."  I said, "What for?  There's nothing wrong for me."  "That doesn't matter. It's just the way we do it."^[7]

19. [19]
    If that is Mr Horne’s honest memory of how he came to receive a disability support pension, it must be that, while going through the application process Mr Horne really was not paying attention. His account is, measured against the Centrelink records referred to below, unreliable. The records include Department of Social Security forms, some filled in by Mr Horne and others signed by him. They set out various medical complaints.

20. [20]
    Under cross-examination, Mr Horne explained:

I said there's nothing wrong with me I meant that in the - nothing wrong with me in the context I can't work. I've always been able to work. I just grinned and borne it, you know, never let it stop me.^[8]

21. [21]
    Mr Horne asserted that his historical injuries had little impact on his capacity to work. One condition he had suffered from for years, called Restless Leg Syndrome, was now well controlled by medication which he would take for the rest of his life.^[9] His osteoporosis, he said, was well controlled by medication such that “the bone density is actually increased”.^[10] The whiplash that he suffered in an accident was “pretty well right now”, having been treated with physiotherapy.^[11] He fully recovered from the injury he suffered to his left shoulder in late 2001.^[12]

22. [22]
    The left shoulder injury assumed some importance in the formation of the opinions of doctors Robinson and Steadman about Mr Horne’s work-life expectancy. Mr Horne described the event that gave rise to the injury:

I was putting my Magna car up on mobile car ramps, I was going to do some mechanical repairs on it and do an oil change, and I was leaning right out the door, hand on the steering wheel, and one foot on the accelerator watching the car go up the ramps so I knew when to stop. Being a front wheel drive, I had never put a front wheel drive up on car ramps before and as the wheels just topped it, it just spat - the car ran straight out the back and it hit - the front wheels fell on the concrete at about half throttle which I was with using to climb up those ramps and the car just took off and nearly tore my left arm off. It felt like it was going to tear off.

23. [23]
    Mr Horne started driving taxis in 2000, each fortnight informing Centrelink of his earnings and so receiving an adjusted pension. He enjoyed the work.

24. [24]
    He worked for several operators, one at East Brisbane, another at Wynnum. He worked a night shift until an incident occurred which caused him severe distress. He did not drive taxis for 5 or 6 months, during which time he received counselling. He took up with another taxi owner, Mr Toreaux, in early 2001, driving only day shifts. Mr Toreaux gave evidence and produced records showing Mr Horne’s earnings between January 2001 and the day of the event at the airport, 17 October 2002. Mr Toreaux’s records also show the short periods Mr Horne worked after receiving his injuries.

The airport event

25. [25]
    Although some of his evidence might cause a court to be guarded when assessing Mr Horne’s reliability generally, there was little contest about the essential facts of the event that caused injury. Counsel for the defendants highlighted the apparent inconsistency between statements made to doctors and his solicitors, on the one hand, and his testimony in court on the other - the essential difference being that the earlier statements were to the effect that Mr Horne fell and struck his shoulder on the taxi whereas his evidence in court was that he fell and struck his shoulder on the kerb.^[13] But the more relevant dispute was whether the evidence proved the hole was unusual and obscure. Mr Horne’s evidence included the following:

Before you left the scene did you make any investigation of what caused you to fall?--  Oh, yes, certainly. I had a look and scraped all the leaves away and there was a big hole there.

Well, what did you see?--  I saw this triangular shaped hole that was buried under leaves about three inches deep.^[14]

…………………….

[referring to one of the photographs] I see. Now, Mr Horne, there's shadowing in that photograph?--

That's from all the trees over above, up above. There's trees right along there.

I see?--  And it's all - it's all shadowed. You're flat out seeing anything. It's sort of camouflaged.^[15]

…………………….

[referring to one of the photographs] That's the kerbing and - there and this is the footpath above it and this - this was all full of leaves. The hole was full of leaves, it was completely invisible, you couldn't see it. There was leaves all around the place and, yeah, it was all full of leaves.^[16]

…………………

I see. Now, Mr Horne, can you explain to his Honour, please, why it was that you did not see the hole before you stepped into it?  Do you know?--  Because it was buried in leaves. There's leaves everywhere.^[17]

…………………

[Cross-examination] ………….. The day I had the accident you couldn't see it. It was just leaves, covered in leaves. Leaves and shadow.

What, the whole gutter - the whole gutter was full of leaves?--  That gutter down there was leaves and it was level across the top of there with leaves. There was just no obvious distinction there to show you there was a hole.^[18]

26. [26]
    I received several photographs of the parking area including the footpath and the hole. Mr Horne said he took some photographs perhaps a few days after he was injured and then again in 2004, although it was never quite clear when the various photographs were taken. He went back to the scene with Dr Gilmore, Engineer, on 14 February 2008. The hole was still there. Dr Gilmore’s report includes a useful diagram and some photographs. They show the substantial triangular shape of the defect in the concrete guttering. The size and shape of the hole allows for Mr Horne’s account: he returned to the taxi, walking on the footpath from the bin some distance in front of the car; reaching the rear of the car he had to turn right; with his right foot on the footpath he turned to his right and put his left foot onto the gutter/road surface; placing it on the cusp of one side of the triangle, he fell to his right.

27. [27]
    The photos show the hole in different states of leaf litter and light. It is possible there were leaves in the hole. This may have disguised its depth. On the other hand, one of the photographs shows that the leaves in the hole highlight its shape and presence. It may be that dappled light would obscure it. Of all these possibilities, the photographs do not show that the leaf cover was such as to obscure the boundaries of the hole, setting the kind of trap Mr Horne describes. They do allow, however, for the combination of leave litter and dappled light to render the hole obscure.

The BAC’s duty

28. [28]
    The plaintiff pleads, and the defendants admit, that the BAC owed a duty of care to the plaintiff to ensure his reasonable safety in lawfully using the premises, including a duty to protect the plaintiff from concealed or unusual dangers.^[19] Of course, the BAC might not so readily have admitted that allegation. A court hearing the plaintiff’s claim against the BAC would first have to decide whether the latter’s conduct involved a risk of injury to the plaintiff or to a class of persons including him. If so,

‘……...it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.^[20]

29. [29]
    What Deane J. said in Hackshaw v Shaw (1984) 155 CLR 614 at 662-3 was adopted by the majority in Australian Safeway Stores Pty Ltd v Zaluzna^[21]:

“... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine 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 visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

30. [30]
    In Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234, which was a case of an obvious risk and one which had been complained about, the occupier’s “obligation to exercise reasonable care for the safety of people who came onto its premises extended to exercising reasonable care that its system did not expose people who made deliveries to unreasonable risk of physical injury”.^[22]

31. [31]
    Factors relevant to defining the duty of care include the purpose and circumstances of the plaintiff entering the place. Here the plaintiff entered the taxi feeder rank for his commercial purpose and also that of the BAC. It gains a benefit from the attendance of taxis. It established a system for the efficient conduct of their business for the mutual benefit of the BAC, the drivers and the airport users. The plaintiff was required to abide by the system set up by the BAC.

32. [32]
    Assuming the hole was not easily seen, whether because of its position or colour or the leaves or the dappled light, how was the BAC to know about it? What risk did it represent? What was the BAC to do about it?

33. [33]
    The risk was that if someone did not see it and stepped in or partly in it, they might fall. To remove the risk would not take much effort, so long as the BAC was aware of the risk.

34. [34]
    There is no direct evidence of what system, if any, the BAC had in place.^[23] The plaintiff argues that whether the BAC knew of the hole or failed to know about it, it failed to take measures to reduce the risk of the very type of incident which occurred to the plaintiff. The defendant argues that the BAC, if it knew about the hole, was required to take no action. So, it doesn’t matter whether it had a system.

35. [35]
    A risk may be foreseeable but be unlikely to eventuate.^[24]

36. [36]
    I think it likely that at a trial of this claim against the BAC a court would consider the risk of injury to a taxi driver from the hole in the road to have been real and reasonably foreseeable but very slight.

37. [37]
    It would be foreseeable because there might be a crack or hole in the road near a kerb or on a part of the road a driver might walk on to, say, get lunch out of his boot. In doing so, he might put a foot on the edge of the hole, lose balance and fall. That is more likely to happen where trees drop leaves and cause dappled light.

38. [38]
    The “reasonable man’s response” to the risk:-

“calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have.”^[25]

39. [39]
    The degree of probability of the occurrence of the risk is slight because of the unlikelihood of the combination of the above phenomena with the further possibility that a person would not see the hole, given that people are expected to act reasonably and take care for their own safety.

40. [40]
    The risk, though slight, was of considerable magnitude – a person could suffer a foot injury, perhaps other bodily injury and even psychological injury, with consequent economic loss.

41. [41]
    As to the expense, difficulty and inconvenience of taking alleviating action: there is no evidence of the system apparently in place, nor of the expense of a system of checking for cracks and holes which would have ensured notice of the hole. It was common ground that it would be inexpensive to make the hole safe.

42. [42]
    It is because the factors in this equation are well-balanced that I think a court would consider the risk to be real and reasonably foreseeable but very slight. That is, it is far from clear that a court would be satisfied the BAC was in breach of its duty to the plaintiff by failing to take steps to repair the hole. And a court which found the BAC to have negligently caused the plaintiff’s injuries would then have to consider whether he contributed to his downfall. Was he, again, really was not paying sufficient attention?

43. [43]
    Ultimately, I am satisfied the plaintiff had a chance, though slight, of success, despite the defendants’ powerful arguments based on many cases, perhaps culminating in the words of Callinan J in Ghantous v  Hawkesbury City Council^[26]:

“The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.”

44. [44]
    In that case, a woman sought compensation for injury caused by her falling when she stepped on the edge of a concrete footpath where there was a drop to the earthen footpath. A fuller quotation demonstrates the context of these remarks:

“There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this. The applicant herself admitted in cross-examination that she knew before the day of the accident that the earthen surface was lower than the concrete surface. The photographs tendered at the trial clearly show that there was a discernible difference between the kerb and the earthen verges. There was no negligence on the part of the respondent either in the construction of the footpath or in not keeping the concrete strip and verges level.”

45. [45]
    It would be open to a court hearing the plaintiff’s claim against the BAC to conclude that the danger in this case was different from that in Ghantous. I have been referred to many cases – discussing cracks in enclosed public places and in open private footpaths; of mango leaves on steps and a hose across the grass; of logs in the carpark and the dangers presented by a table in a room. Each case will be different. In this case, it would be open to conclude that the hole presented a foreseeable risk of causing injury, in the circumstances its position near or under the trees with leaf cover and in dappled light.

46. [46]
    In terms of the pleaded defence, I am not satisfied that the plaintiff had no prospect of success against the BAC because the hole was not a concealed or unusual danger.^[27] But I do accept the defendants’ arguments that the plaintiff’s prospects were slight. The plaintiff had stood at the boot of his car shortly before the fall. Such defects in road and gutter surfaces are common. As a taxi driver, the plaintiff must have seen many. Taking into account the prospect of a finding of contributory negligence it is difficult to consider the plaintiff’s prospects of success being better about a one-third chance.

General Damages

47. [47]
    I have already set out some detail of the plaintiff’s physical injuries and treatment. He gave evidence that he felt severe pain in his ankle and pain in the right shoulder with restricted movement. He was treated by Dr Robinson, first by cortisone injection and later by surgical repair. The repair failed and the plaintiff is left with “a partial or full thickness re-tear of the anterior mid supraspinatus tendon”^[28] measuring some 10 by 15 millimetres. He still suffers pain and is left with reduced movement.

48. [48]
    The plaintiff also suffered psychological symptoms. I have referred to his attempted suicide after the collapse of his marriage. Dr John Chalk, Psychiatrist, examined the plaintiff in August 2006. I received Dr Chalk’s report by consent and he was not cross-examined. He concluded the plaintiff was significantly unwell after the marriage break-up and probably was so for several years. The event of October 2002 led to a recurrence of a depressive illness. Dr Chalk described the plaintiff as suffering the residual features of an adjustment disorder with depressed mood. The plaintiff is treated with medication and does not require other psychiatric or psychological treatment.

49. [49]
    The plaintiff gave evidence that his injuries prevented him fishing and surfing.

50. [50]
    There was significant dispute between the medical experts as to the inevitability of the plaintiff suffering right shoulder symptoms even without the fall of October 2002.

51. [51]
    The history Dr Robinson obtained did not include the right shoulder problems Mr Horne apparently suffered in about 1994. Mr Horne had suffered left shoulder symptoms in 2001. Dr Robinson treated him with an injection and later, surgery. He described the injury as a 10 by 15mm tear. The surgery was, essentially, successful. The injury in the left shoulder was significantly less serious than Mr Horne’s right shoulder injury. Dr Robinson described a 2 by 3 cm tear in the right supraspinatus tendon. This was repaired during surgery in June 2003, having failed earlier non-operative treatment. Dr Robinson said such a defect was difficult to repair, the main aim of surgery being to reduce pain.^[29] He said Mr Horne wore a sling for 6 weeks and underwent physiotherapy, but continued to report pain. In February 2004 a “high grade partial or full thickness re-tear” of the tendon was discovered on ultrasound. Dr Robinson thought such a tear, of 10 by 15 mm, was not surprising considering the size of the defect seen at surgery.

52. [52]
    Dr Robinson thought Mr Horne would have “significant weakness for lifting items like suitcases and bags” and difficulty raising his right arm to close the boot of a car. So, his ability to assist taxi customers was significantly impaired.^[30]

53. [53]
    In February 2004, Dr Robinson judged Mr Horne to be left with 11% whole person impairment. He considered that of that impairment, about half would relate to “age-related changes”. So, he considered the fall aggravated pre-existing degenerative changes, causing 6% of 11% whole person impairment. In this regard, there was little in contest between Dr Steadman and Dr Robinson. The controversy was principally whether, given his earlier left shoulder pathology and/or the earlier right shoulder changes, Mr Horne would inevitably have become unfit for work with out the fall of 17 October 2002, and if so, how soon.

54. [54]
    Dr Steadman’s opinion, expressed in his reports dated 11 August 2006 and 31 March 2010, was that Mr Horne’s right shoulder would become symptomatic within two years.

55. [55]
    Clearly Mr Horne also did not tell Dr Steadman of any pre-accident symptoms affecting his right shoulder. Dr Steadman reports that Mr Horne “does not entirely know why he was put on the Disability Support Pension. He was told by Centrelink that this is just how the government did things.” To Dr Steadman, this and other aspects of Mr Horne’s account seemed unreliable – scratches on his arms said to be from tree trimming suggested “he is more capable that he presents”; it was “ironic that the left shoulder has recovered fully but the right [which is the subject of litigation has] not”.

56. [56]
    Centrelink records, tendered by consent, document Mr Horne’s examination by various doctors leading to his receipt of the disability support pension. More than once, reporting doctors’ comments suggest that Mr Horne has exaggerated his problems. In early 1994 he told Dr Geraghty that he sold his bread run because of widespread pain that was aggravated by movement and lifting. Dr Geraghty’s report includes Mr Horne’s complaints that sitting for approximately 30 minutes causes back and leg pains.

57. [57]
    The records contain a report, dated 25 January 1994, of Dr Ivers, Orthopaedic Surgeon at Toowoomba. Mr Horne, then aged nearly 54 years, had “multiple problems”. These included “a continual ache in the knee and limited motion”, which was the long term result of having been kicked in the right knee by a cow at the age of 13 years. He also complained of lower back pain and restricted movement and pain in the right shoulder for the previous 6 months, not due to any particular injury, which made it difficult to comb his hair, reach out, and put things up on shelves. This was described as “his major problem at the present time”. He described “pain and a catch with abduction between 90 and 120 degrees.” Mr Horne also described pain in both hands, wrists and small joints which made it difficult to wash dishes, cut his meal or lift minor items. Dr Ivers describes limitation in the various shoulder movements. Dr Ivers summarised Mr Horne’s condition as “generalised aches and pains which are probably related to degenerative disease. He seems to maximise these symptoms a little. He also has rotator cuff tendonitis on the right side”. Dr Ivers gave Mr Horne an injection to alleviate the right shoulder pain.

58. [58]
    Some months later, on 11 April 1994, a Commonwealth Medical Officer records several permanent medical conditions causing impairment. These included impairment in lower spine, cervical spine, lower limbs and right upper limb. The notes indicate Mr Horne complained of pain in his neck, back, both shoulders, hands and knees.

59. [59]
    On 13 August 2001, Mr Horne wrote in a Centrelink form that his illnesses and disabilities were sleep apnoea, restless leg syndrome, back, arthritis, osteoporosis, nasal problems and tendonitis. He indicated, by filling in a table on the form, that his back and shoulder pain often made lifting difficult and made carrying difficult all the time. His back pain often made bending difficult.

60. [60]
    A medical examiner’s assessment, dated 11 November 2001, which concluded that Mr Horne was fit for full-time work, includes the note that Mr Horne “currently drives a cab for 16-30 hours/week, and is the paid caretaker for his block of units. This involves hedge clipping, lawn mowing and pool cleaning, all of which he seems to accomplish with no undue difficulty.”

61. [61]
    Having been supplied with these materials just before trial, Dr Steadman, while accepting that a fall as described by Mr Horne would aggravate the pre-existing pathology making an asymptomatic condition symptomatic, asserted the predicted outcome was the same. It had had simply been brought forward by the fall. In the absence of the fall, given the information now at hand, Dr Steadman would reduce the two year prediction to six months. The pre-existing condition, as revealed in the Centrelink materials, also explained the “re-tear” phenomenon described by Dr Robinson. Because of the poor condition of the tendon, the operation to repair it was less than successful.^[31]

62. [62]
    Insofar as Dr Steadman’s opinion is based on the pre-existing left shoulder injury predicting right shoulder pathology, he did not seem to allow for Mr Horne’s account of the incident which gave rise to the left shoulder injury. Dr Robinson was much less prepared to predict that right shoulder injury would necessarily follow left shoulder pathology. Dr Robinson based this reluctance on several medical journal articles, copies of which I received, and his experience as a specialist hand and shoulder orthopaedic surgeon. His ultimate view may be understood from the following part of a lengthy answer in re-examination:

The problem is that people with pre-existing pathology have - the rotator cuff tendon itself softens and loses its structural integrity, so when it is - it will fail at a lower load than a normal tendon will, so he is at higher risk of injury from the same level of force, or the force will produce a greater injury to a degenerate tendon than it would to a normal tendon, but there's nothing to suggest that the tendon would have become symptomatic and requiring treatment at any defined point in time in the future.^[32]

63. [63]
    I do not think a court would act upon Dr Steadman’s opinion that Mr Horne would have deteriorated within 6 months to the state of pain and injury which resulted from the incident of 17 October 2002. But a court would be very guarded in its assessment beyond the notional trial date of general damages for pain and suffering.

64. [64]
    My view of the medical evidence is that a court hearing Mr Horne’s claim against the BAC in about October 2007 would be likely to conclude he suffered, as a result of his fall, a serious aggravation of a pre-existing right shoulder problem which resulted in 11% whole person impairment and an adjustment disorder. For those injuries, should he establish liability, he should be compensated. However, he was clearly at greater risk than others of serious injury.

65. [65]
    I think a court would assess damages for pain and suffering in the order of $25,000.

Assessing loss of earning capacity

66. [66]
    I do not think a court would be persuaded that, against the history of his several ailments and, particularly, his left and right shoulder degeneration, he had the capacity to serve customers as a taxi driver until the age of 75.

67. [67]
    From January to June 2001, Mr Horne worked an average of 3.3 shifts per week, taking an average of $106.90 per shift. In the year ending 30 June 2002, he worked for 42 weeks. He averaged 4.17 shifts per week, earning an average of about $115 per shift, or $481.70 a week. His earnings for the year were $20,231.30. In the 2001/02 financial year Mr Horne usually worked 5 or 6 shifts per week until he was injured on 17 October 2002. The average of his shift earnings was $122.26.

68. [68]
    A table of the earnings of other drivers, taken from Mr Toreaux’s records, showed that experienced drivers working an average of 5.46 shifts per week earned an average of $201.30 per shift or $1099.43 per week. The plaintiff relies on this table to demonstrate that taxi drivers’ earnings increased between 2002 and 2006. So little is known of the other drivers a court must be very cautious in such an extrapolation. Mr Horne was – although robust in attitude – an ageing man pre-disposed to the very injury he suffered in October 2002.

69. [69]
    Mr Horne’s tax returns showed his income less expenses to be:

70. [70]
    Although Mr Horne was motivated to work as long as he could,^[33] I think it most unlikely a court would conclude he would have worked past the age of 70 years. The exigencies that might have affected Mr Horne’s capacity to earn an income as a taxi driver include the availability of work – Mr Toreaux returned to driving in about September 2004, and other drivers’ availability may affected Mr Horne’s shifts ^[34], the susceptibility to right shoulder injury degeneration or injury given the medical history and the possible onset of disabilities arising from his other medical problems. Also, once Mr Horne became eligible for the age pension there is the prospect that he would stop or reduce his taxi driving, as Mr Toreaux observed other drivers had done.

71. [71]
    Mr Fitzpatrick, in his written submissions on quantum, allowed a discount for contingencies of 30% on future economic loss, that is, on loss of earning capacity beyond the notional trial date of October 2007. I think it likely a court would consider the contingencies, such as I have outlined above, would be in play much earlier. In the result, I think it would be open to a court to conclude that but for his injury Mr Horne would have continued to earn between $20,000 and $25,000 per year up to a notional trial date of October 2007 and beyond that, a reasonable assessment of his lost earning capacity would be based on his working for a further 3 years to age 70 years. Both past and future losses would then be discounted (the latter, heavily) to take account of the various limiting factors.

72. [72]
    The result might be as follows:

Gratuitous services

73. [73]
    Sharon Halton helped the plaintiff when he was unable to do things for himself. She cooked, cleaned his apartment, made beds, washed clothes and helped him wash. She also shopped for him. He claims damages for gratuitous services provided over 21 weeks after the event of October 2002 and for 8 weeks after his operation in June 2003. In each case, the claim is for 50 hours assistance per week at the rate of $20 per hour.

74. [74]
    Mr Horne and Ms Halton had been close companions. She had previously shared his two bedroom unit. She moved in back with him, to help him, soon after the fall. Mr Horne agreed, in cross-examination, that some of the duties Ms Halton performed were for her benefit too. For example, when she cooked it was for both of them. They both went shopping. She benefited from cleaning the unit. Generally, Mr Horne agreed, Ms Halton may have gained some benefit from their companionship.

75. [75]
    Ms Halton was not called as a witness but her statutory declaration was tendered. She described providing a great deal of assistance to Mr Horne in the first 3 months after he received his injuries. She moved from a caravan into his home to provide assistance. As well as the duties he described, Ms Halton stated she helped Mr Horne dress and undress; and shopped alone, catching taxis to do so because she did not drive. After moving out of his home in February 2003, Ms Halton visited Mr Horne about 4 times a week to help him washing and hanging out clothes, iron, vacuum and mop, cook, wash dishes and clean the home. She did this until April 2003. She helped again after his surgery, going to his place twice a week and helping for 5 or 6 hours at a time.

76. [76]
    Ms Dickson, for the defendants, argues I should give no weight to the statutory declaration because of inconsistencies between Ms Halton’s assertions and the plaintiff’s evidence and because she was unavailable for cross-examination. Also, he argues that the evidence of gratuitous services provided does not reach the threshold required by s.54 of the Personal Injuries Proceedings Act 2002 once account is taken of the “offsetting benefits” to Ms Halton. Among these, Mr Dickson argued, was the improvement in accommodation for Ms Halton, moving from her caravan to Mr Horne’s unit. She described “giving up” the caravan.

77. [77]
    While keeping in mind that Ms Halton’s statements were not tested under cross-examination, I think a court would be satisfied by all of the evidence that the plaintiff did receive assistance for more than 6 hours per week for more than six months. Even if she gained some benefit from cleaning the unit and cooking for the two of them at once, Ms Halton’s assistance to the plaintiff while living with him would have easily exceeded the statutory threshold. When she did not live with him it is unlikely she derived much benefit at all from her visits.

78. [78]
    In the result, had Mr Horne established liability at his trial I think it likely a court would have awarded compensation for gratuitous services. Little should be made of Mr Horne’s concessions regarding the benefits to Ms Halton by helping him or his estimations of the time she spent beyond those benefits assisting him. As he said, he “never took much notice”.^[35] A reasonable award would be for services of 25 hours per week for both periods claimed:

(21 + 8) weeks x 25 hours x $20/hr  $14,500

Interest on past care       1,450

     $15,950

Assessing the value of the lost chance

79. [79]
    Mr Fitzpatrick submitted that, allowing for all reasonable contingencies, including “liability risks”, issues of proof, the stern attitude displayed by the solicitors for the BAC and the prospect of an early settlement, the anticipated award should be discounted to 50% or 60%. Upon a review of relevant cases, the submission was that where an action was lost because of the solicitor’s negligence, prospects rarely exceed a two-thirds chance.

80. [80]
    Mr Dickson argued not only that the plaintiff had no prospects of success against the BAC at trial but also that there was no prospect of a settlement, given the “robust denial” of liability and unyielding attitude displayed by the solicitors for the BAC.

81. [81]
    Mr Horne, although he said any offer of settlement would have to be “a fairly substantial offer”, also said he would always follow the advice of his legal representatives.^[36]

82. [82]
    What might have happened is very difficult to say. The robust denial by the BAC was made in circumstances where the limitation period had already passed. As I have decided, the plaintiff did not have no prospects of success. Cases do settle. Although, having heard him give evidence episodically over several days, I am not sure Mr Horne would have followed his lawyers’ advice to accept too modest a settlement. Other factors include the agreed $20,000 of unrecoverable costs of any litigation and the restrictions on costs recoverable in the case of a small award.^[37]

83. [83]
    I have concluded the plaintiff’s prospect of success against the BAC could have been about a one-third chance. I assess his loss at one-third of the sum of the following:

Out of pocket expenses (uncontested):$  2,521.86

Interest on out of pocket expenses:$     630.46

General damages:$25,000.00

Interest on $20,000 at 2% for 5 years:$  2,000.00

Past loss of earning capacity (incl interest):$73,567.00

Future economic loss:$36,600.00

Gratuitous services (incl interest)$15,950.00

Future medical expenses:$  1,901.35

Total$158,171.67

Less solicitor/client costs unrecoverable($ 20,000.00)

Sub-total$138,171.67

Interest at 10% p.a. from putative trial date (3 years)$  41,451.50

Total$179,623.17

84. [84]
    I assess the plaintiff’s loss at $60,000. I will hear from the parties as to the form of orders.