Swindells v Hosking[2012] QDC 6

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In late May 2005 – the exact date is very much in dispute – the plaintiff was a lawful entrant on a rural property situated at 239 Madill Road, Tandur in the State of Queensland for the purpose of inspecting the property, and chattels on it, pursuant to a contract for the purchase by the plaintiff of the vacant land (“the property”) under a Contract of Sale dated 18 May 2005 and pursuant to a contract for the purchase by the plaintiff of a business, partly conducted on the property.  It was common ground between the parties that the land was part of a package which the plaintiff wished to buy for the purposes of conducting a business of furniture manufacture, then known as “Furniture by Nature”, although no contract regarding the business became an exhibit.

2. [2]
   At all material times, the defendants were the registered owners of the property which bore the real property description, Lot 1 on RP 181248, County of March, Parish of Woondum. 

3. [3]
   By the Further Amended Defence – for which I gave leave during the trial (as there was no impediment to factual matters being led in the evidence given, and to be given) – the defendants (who were self-represented for the trial and had filed all pleadings under their own hands) were deemed to have admitted that they were the occupiers of the property, but expressly denied (for reasons to be explored later) that they were responsible for the management of the property or responsible for the care and control of the property or owed a duty of care to entrants on to the property (as were owed or required by law). By leave, the plaintiff filed an Amended Reply on 16 December 2011.

4. [4]
   The plaintiff has claimed that he suffered personal injury on that occasion of being so present on the property. He asserts that the date of the incident was 24 May 2005 (a Tuesday), whereas the defendants contend that it was 26 May 2005 (a Thursday). While, on its face, such a difference does not appear to be significant, for reasons to be explored later, it has assumed significance in this proceeding.

5. [5]
   Thus, subject to a preliminary matter of the application of the Limitations of Actions Act 1974, this is a proceeding which requires the determination of the liability of occupiers to a lawful entrant (having a commercial interest in that entry), and damages (if such liability is determined).

6. [6]
   In determining that liability, the defendants, by that Further Amended Defence, have raised a consequential issue arising from Clause 8 of the Contract of Sale, with respect to the transfer of risk.

Limitation Issue

7. [7]
   This arose from a concern that I had at the commencement of the trial, given the long delay between the expiry of the period of limitation and the filing of the claim. I gave leave to the defendants to file the Further Amended Defence concerning it; and allowed an instanter, oral application by the plaintiff (as detailed below) to be brought: see rule 32(1) of the UCPR.  Even on the basis that the plaintiff was injured on the property on 24 May 2005 (being the earlier of the two potential dates) the following matters are important:

8. [8]
   As also earlier noted, on the same day, I gave leave to the defendants to further amend the Further Amended Defence to rely upon s 11(1) of the Limitation of Actions Act 1974 on the basis that the “action” was not started within three years from the date on which the cause of action arose.

9. [9]
   In a supporting affidavit (for which I gave leave to read and file, instanter) the plaintiff’s solicitor, Shane Andrew Crew, deposed to his “intention” with respect to the order made by Dodds DCJ on 23 May 2008. He deposed that such intention was “to obtain leave for the plaintiff to commence his proceeding once the pre-court proceedings on PIPA had been complied with”: see paragraph 8.

10. [10]
    Because of amendments to PIPA since the seminal decision of Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378, particularly s 59(3) of PIPA, the usual form of orders now made under s 59 is, understandably, that the court allows “a longer period” than the six months after the complying Part 1 Notice is given, coupled with an order that the proceeding is “stayed” until the claimant complies fully with Part 1.  In 2005, absent the equivalent of s 59(3), the order was commonly in the form that compliance be effected within a stated period and, upon such compliance, the claimant/plaintiff then “have leave to commence proceedings”.

11. [11]
    It should be noted that s 59(3) of PIPA, as it applied at 23 May 2008 (and at 30 November 2011), expressly referred to a proceeding being “started” and such proceeding thereafter being “stayed” until compliance.  The order of Dodds DCJ of 23 May 2008 is in accordance with the intent of that wording, even though the present terminology in s 59 is to refer to the “start” (or its derivatives) of a proceeding.  Consequently, those arguments advanced by the plaintiff, consistent with the supposed “intention” of the plaintiff’s solicitor, cannot, on the face of the order made, be sustained.  Such contentions include:  the possible application of “the slip rule” (where no time frame was mentioned to the Court, and given the delay to the present); the adoption of what was the “intent” behind the order; and the proper interpretation of paragraph 1 of the order being that the claimant/plaintiff had “carte blanche” to begin his action at the time of his choosing.

12. [12]
    It must be recognized that paragraph 1 of the order of 22 May 2008 does not set a time based period for the “longer period allowed” by the court.

13. [13]
    Considering that the order was sought “by consent” – even though it must be acknowledged that the court must exercise a discretion – it would appear that the only acceptable approach to the interpretation of the combination of orders made is that either paragraph 1 is subject to an implied “reasonable time” period as “allowed” or that the order has no effect. Since it is unlikely that a proper interpretation would be that the order be ineffective, it would seem that the only interpretation open is the implication of a reasonable period. Given that s 59(2)(a) refers to a period of six months – although admittedly in a completely different context – I interpret paragraph 1 of the orders made 23 May 2008 as allowing the proceeding to be started within six months of the date of the order. This may be an unduly generous time; but it is difficult to see what other longer period could be said to be “reasonable” in the circumstances in question.

14. [14]
    But even given a six months time frame, it is clear that the starting of the proceeding on 25 August 2010 is way beyond what the order could, on its terms, properly contemplate. Further, it is difficult, in light of that interpretation, to know what to make of the later order of 25 June 2010, even given the unlikely interpretation that the claimant/plaintiff did have leave, “subsequent to” compliance with the requirements of PIPA, to start the proceeding.

15. [15]
    Accordingly, by either path of analysis, the application made during trial for a “further” order pursuant to s 59(2) of PIPA must be understood as an application brought for a second time under the same provision, either required by non-compliance by the claimant/plaintiff with the order of 22 May 2008 or by being of no effect.

16. [16]
    I have not been referred to any decision which deals with a second application of this kind; and I have been unable to find any such decision myself. It is clear from Morrison-Gardiner that the general power to extend time given by this provision can be exercised after the expiration of the three year limitation period: see Chesterman J (as he then was):  at 404-405 [88]-[90].  Certainly, if I should refuse this second application, there is nothing in the Amended Reply – for which I also gave leave – filed by the plaintiff which would exclude the application of s 11(1) of the Limitation of Actions Act 1974.  In Morrison-Gardiner it was clearly held that the discretion conferred by this provision is to be exercised with proper attention to the context in which it is conferred:  at 402 [81].  As explained by Chesterman J, the provision is “clearly meant to ameliorate the plight of a claimant who is unable to comply with requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension”: at 402 [82].  Earlier, Chesterman J had stated, essentially, the three reasons why statutes of limitations have been thought to be appropriate, citing:  first, that “claims which are allowed to lie dormant for long periods have more of cruelty than of justice”; secondly, a realization the defendant may lose evidence necessary to disprove a stay or claim, notice of which comes very late; and, thirdly, and the “least persuasive reason”, that persons with good causes of action should pursue them “with reasonable diligence”: at 401-402 [79]. 

17. [17]
    It is not in dispute that the defendants retained legal advisers up until early April 2010: see Exhibit 15 (a letter from the defendants’ then solicitors to the plaintiff’s solicitors, dated 7 April 2010). Furthermore, it has not been contested by the defendants that, as deposed by Mr Crew, following the order of 23 May 2008, the parties continued to attempt to “progress” the matter through the PIPA pre-court procedures and that, as a result of the defendants’ failure to attend a compulsory settlement conference with respect to the claim, the further order of 25 June 2010 was sought, and made.  In addition, there has been nothing proffered by the defendants which shows that, in any way, they have been prejudiced by the “delay” from 2008 to 25 August 2010.

18. [18]
    The consequence of those matters just considered, despite there being a lack of diligence by the claimant/plaintiff, is the claim has not that aspect of cruelty to the defendants if allowed to proceed, particularly where there is no suggestion of lost evidence and when, as has happened, the defendants have, although self-represented, vigorously participated in the trial.

19. [19]
    Although reluctant to permit a further application pursuant to s 59(2)(b) of PIPA, in the particular circumstances of this case, noting that legal representation was had by the defendants up until a short time before the second order of 25 June 2010, I hold that it would be unjust in these very unusual circumstances to dismiss the further application, despite the seemingly incredibly long time between May 2008 and August 2010.

20. [20]
    In consequence, I will order that the applicant be given leave to start his proceeding, based on the claim in the “complying” Part 1 Notice of Claim, on 25 August 2010; and that the order be made nunc pro tunc, there being no identified impediment to such an order.  This means that the defendants cannot succeed on the limitation issue (raised in the Further Amended Defence) which the plaintiff has put in contest by his Amended Reply.  Since, in the circumstances of this case, no further delay sounding in costs has been caused to the defendants, no order for costs should be made with respect to the instanter application made by the plaintiff.

“Risk”

21. [21]
    The defendants’ Further Amended Defence was filed 2 December 2011. Leave was also given to withdraw those deemed admissions in paragraph 2 of the Statement of Claim relevant to this contractual “defence”. No inability to deal with the issue now was raised by the plaintiff. In that new pleading, the defendants, after denying the allegations in paragraphs 2(c), 2(d), 2(f), and 2(g) of the Amended Statement of Claim, alleged that the Contract of Sale dated 18 May 2005, by Clause 8.1, means that, at the date of the alleged incident, “all risk was on the plaintiff”. By his Amended Reply, the plaintiff contests all such allegations.

22. [22]
    Clause 8.1 stated that:

“The Property is at the Buyer’s risk from 5pm on the first Business Day after the Contract Date.”

23. [23]
    From the definitions in Clause 1.1 of the Contract of Sale, the Property, in the context of this case, meant the vacant land situated at 239 Madill Road, Tandur, described as Lot 1 on RP 181248.  Therefore, the only issue in this point concerns that land.  Further, the Buyer was, again in the context of this case, the plaintiff in this proceeding.  Lastly, as the contract date was 18 May 2005, a Wednesday, the land was at the plaintiff’s “risk” from 5pm on Thursday 19 May 2005.  This was clearly before both 24 May 2005 and 26 May 2005. 

24. [24]
    Other sub-clauses of Clause 8 are also important. First, Clause 8.2 stated that, after reasonable notice to the defendants, the plaintiff and its consultants “may” enter the property (for various stated reasons). Secondly, by Clause 8.5, “if” possession was given before settlement, certain consequences applied.

25. [25]
    Before turning to the meaning of “risk” in the context of Clause 8.1 of this Contract of Sale, the actual evidence at trial did not reveal any access, much less possession, being utilised by the plaintiff before the later of the two relevant, incident dates. To the contrary, the only entry by the plaintiff was on the date of the alleged incident, whether that be 24 or 26 May 2005.

26. [26]
    In written argument, the defendants maintained that “risk” was wide enough to embrace liability for the consequence of personal injury suffered by a lawful entrant onto the property. Even if that were to be so, given the factual context of this case, it would be difficult to see how this plaintiff had any possessory rights which would have led to the general law imposing on him an obligation to exercise care towards lawful entrants and releasing the defendants, still in general “possession”, of that obligation.

27. [27]
    But a far more formidable hurdle lies in the defendants’ way. As was noted by Palmer J in Gorgas v Soon Ok Hwang [2010] NSWSC 1121, under the common law the “risk” which is dealt with in such contracts of sale deals with the risk of loss from damage “to a property” where that property passes, in an equitable sense, to a purchaser upon exchange of a specific contract of sale: at [30].  See, also the discussion by Gray J in Napper & Anor v Bultitude & Anor [2009] SASC 37 at [26]-[31], concerning the vendor’s and the purchaser’s obligations in equity to take reasonable care to “maintain” the “real property”.  As further noted by Palmer, J, since it was seen that not all purchasers were aware of the circumstances – and many did not insure the property prior to completion – s 66K of the Conveyancing Act 1919 (NSW) was passed reversing that common law position and providing that “risk in respect of damage to the land” subject to a contract of sale does not pass to the purchaser until completion of the contract, or until an earlier time stipulated by the parties to the contract: at [30]-[31].

28. [28]
    All texts on this subject limit the consideration of “risk” to the “real property”. For instance, according to Legal Online (Thomson Reuters) in its commentary on Clause 8 of the standard REIQ Contract for the Sale of Houses and Land – which was the standard form used in this case – the effect of Clauses 8.1 and 8.5 is that a buyer will bear the risk of “damage (to) or deterioration in the property”, provided it does not arise from the actions or inactions of the seller: at page 1.  The text goes on to note that this means that the risk of “natural disasters” such as flood, bushfire, earthquake or storm pass to the buyer at the time of the contract and, unless modified by contract, a buyer will be required to complete the contract by the payment of the full purchase price, despite damage or destruction, making it essential for a buyer to insure the property immediately upon formation: also at page 1.  Lastly, the commentary notes that since the purchaser has an “insurable interest” in the “property” upon execution of the contract, the purchaser should take out insurance to protect “it” from the “risk” of such damage or loss: also at page 1.

29. [29]
    Although other texts, such as Halsbury’s Laws of Australia (online) (LexisNexis) state that, in some jurisdictions, the risk of damage to land and fixtures does not pass to the purchaser until completion of the sale, or if the parties stipulate otherwise [instancing s 63 of the Property Law Act 1974 (Queensland)], it is clear from the terms of s 63 itself that it simply deals with the application of insurance money on completion of a sale or exchange: see the text’s consideration of the “Creation and Acquisition of Real Property concerning a Vendor and a Purchaser”. 

30. [30]
    Nevertheless, what is important in all these authorities, texts and commentaries is that the transfer of the risk is with respect to accidental damage or loss to the land or improvements on it: not to risks of injury to lawful entrants (which are truly the subject of other legal rights and obligations that may, or may not, arise from any contract of sale, depending on the terms of the contract itself and depending upon the circumstances that apply, particularly the circumstances that concern rights to control, and particularly where they may arise from actual possession).

31. [31]
    In the end, it is just not possible, in context, to read into Clause 8.1 of this Contract of Sale any modification or denial of any obligation concerning the duty owed by an occupier to a lawful entrant by the reference to “risk” in that particular provision. It is unnecessary to reach any conclusion concerning the allegation in paragraph 1A(f) of the Amended Reply that the defendants are “unable” to contract out of their “common law duty” of care to the plaintiff.

32. [32]
    Accordingly, even apart from difficulties (such as whether the obligation continues), where, as here, this particular Contract of Sale was never completed, it is not open to the defendants to argue that their liability as lawful occupiers (which the general law imposes upon them concerning lawful entrants onto the property) has been excluded.

Date of incident, and consequences

33. [33]
    The Statement of Claim, by paragraphs 3 and 4, alleges that the date of the incident was on or about 24 May 2005 and that it occurred at or about 3.30 pm to 4 pm on that date.

34. [34]
    The Further Amended Defence alleges that the plaintiff did not attend the property until 26 May 2005 “as stated on all correspondence prior to September 2010” and that “the plaintiff’s medical records state that the claimant injured himself on 24 May 2005”, adding that the plaintiff arrived at the property at 9.25 am on 26 May 2005 and that the male defendant had himself left the property prior to 3.30 pm on 26 May 2005.

35. [35]
    The Amended Reply repeats the allegation of arriving at the property about 3.30 pm on 24 May 2005: see paragraph 3.

36. [36]
    It is clear from the cross-examination of the plaintiff that he had, for instance, in the Part 1 Notice of Claim, stated the incident occurred on 26 May 2005. He also stated in cross-examination that he “rectified” that mistake when he saw the earlier date on an “x-ray record”. That incontestably refers to the report of Queensland Diagnostic Imaging under the hand of Dr Brian Parkinson, which refers to an x-ray of the left foot and left ankle being done on “26/05/05”: see Exhibit 10, p. 5. That report was directed to Dr J English at the Golden Beach General Practice (at which the plaintiff was a regular patient). The plaintiff, in further cross-examination, was unable to say whether it was 2006, 2007, 2008 or 2009, being not sure, and stating that it “wasn’t that late” but “earlier on”.

37. [37]
    It emerged during that cross-examination that the point of the difference between the dates was relied on by the defendants because the defendants were “going to claim” that the plaintiff “had injured himself prior to coming to the property” (emphasis added).

38. [38]
    As to the different recollections of the time of the day, the plaintiff, in cross-examination, admitted that what was shown in Photograph No. 2 in Exhibit 6 was “fog”. When further pressed as to whether he had ever observed the property to have fog in an afternoon after 3 pm, the plaintiff replied “No, low cloud I have.”.

39. [39]
    Mr Ferguson, the plaintiff’s brother-in-law, attended the property at the same time in late May 2005 as the plaintiff. He was not sure of the exact date; but, with respect to the time, he said it was “after lunch”. It was not put to Mr Ferguson that there was fog around or that the time he arrived was in the morning of the day in question. In cross-examination, Mr Ferguson kept to his time of day estimate as being on the property “in the afternoon”.

40. [40]
    The male defendant was the only witness called in the defendants’ case who was at the property on both 24 May 2005 and 26 May 2005. The female defendant gave evidence about a phone call she made to the plaintiff and about the time when her husband came home on both respective days. With respect to the phone call, she freely admitted that she could not give an exact date. She said that the content of the phone call, which was made in the morning some time, was to the effect that the plaintiff “couldn’t come to the property”. She further stated that the male defendant arrived home on 24 May 2005 “around the 4 o’clock mark”, although she could not be “100% sure”. Later, on the night of 26 May 2005, she stated that the plaintiff came to her house and that he was on crutches. She said that both the plaintiff and the defendants talked that night about his visit to the property “that day”. In cross-examination, the female defendant – in my view quite honestly – said that the dates that she was referring were “so ingrained” in her brain “because so much hinges on a date” and that she was “just trying to think if there was anything beside (her husband) telling (her) at the time that would cause (her) to remember the date”, completing the recollection by stating that she was “really not sure” and that she could not say “with any certainty”.

41. [41]
    As for the male defendant, he stated that he had agreed with the plaintiff to meet at the property on 24 May 2005 at 9 am and that he arrived on that date early. Further, he stated that it was 9.20 am when he looked at the clock that was on his phone and the plaintiff was still not there, but that both the plaintiff and Mr Ferguson arrived 5 minutes after that and that it had been particularly foggy in the morning. When it was pointed out to him that he was referring to 24 May 2005, he then stated that, in fact, on that day they failed to turn up, explaining that he was “just getting confused with the dates”. Thereafter, the male defendant stated that on 24 May 2005 the female defendant had rung him at midday and then later noted that he had a “missed call” from the plaintiff. He stated that he returned that phone call about 1.30 pm, making a new appointment time at 9 o’clock for the Thursday, which was 26 May 2005. Returning to 24 May 2005, he stated that he left the property on that day at 2.30 pm. In cross-examination, when it was suggested to him that he could not possibly recall the exact date, he replied that he knew that he had given the plaintiff the BAS statement on a particular day (which he believed to be 23 May 2005), that he and the plaintiff had made an appointment for the next day, that the plaintiff had failed to turn up, but they then had another appointment and that that was the day when the plaintiff came. When it was again put to the male defendant that it was entirely possible that the plaintiff and Mr Ferguson attended on the afternoon of 24 May 2005, the response was that the photos “prove that they were there in the morning” (to which, unsurprisingly, an objection was taken, and upheld).

42. [42]
    The medical records of the Golden Beach General Practice, at which both Dr Byrne and Dr English practiced, which became Exhibit 10, contained an entry for “Wednesday May 25 2005 16:06:43”. The note, referrable to the plaintiff, is sourced to Dr English and the note refers to a “twisting injury to the left ankle yesterday”, adding that the foot “rolled” in loose sawdust and thereafter referring to other matters concerning the incident and treatment. It then states that the reason for the visit was, “? Ankle sprain” and that Diagnostic Imaging was requested to x-ray both the left ankle and the left foot “to exclude fracture”.

43. [43]
    Dr English was not called as a witness. Nevertheless, Dr Byrne identified the notes as being part of the “business records” of the practice. Section 83 of the Evidence Act 1977 states that, for Division 6, a “book of account” includes any document used in the ordinary course of any undertaking to record anything dealt with by, produced in, held for or on behalf of the undertaking and any particulars relating to any such thing.  Section 94 states that, in all relevant proceedings, a copy of an entry in the book of account shall be evidence of the entry and of the matters, transactions and accounts being recorded: see paragraph (b). 

44. [44]
    Section 85, dealing with proof of a book of account was satisfied by the evidence of Dr Byrne. The verification required by s 86 was also provided by Dr Byrne. Hence, these records of the practice can be held to be part of a “book of account” of an “undertaking” to record things dealt with by that undertaking.

45. [45]
    Accordingly, given that the entry concerning 25 May 2005 not only designates the day of the week but also the time and that it refers to an injury occurring “yesterday” in a description that is not that inconsistent with what the plaintiff has given in evidence, I conclude that, at the very least, the plaintiff had visited the Golden Beach General Practice on 25 May 2005 in the afternoon and saw Dr English, complaining of an injury to his left ankle and for which Dr English requested x-rays of his left ankle and left foot. Taken together with the x-ray, already referred to, of 26 May 2005, I conclude that the plaintiff, on the balance of probabilities, did not attend the property on 26 May 2005 but, rather, attended on 24 May 2005. It is to be noted that the defendants did not dispute that on some day in late May 2005 the plaintiff and Mr Ferguson did come together to the property.

46. [46]
    As for reconciling whether what is shown in the photographs in Exhibit 6 is “fog” or “low cloud”, I accept the evidence of the male defendant that the visit to the property on 24 May 2005 was, in fact, in the morning predominantly, with the pair arriving at approximately 9.30 am.

47. [47]
    In the absence of any contemporary documentary evidence as to time, the reason that I make this conclusion is: that I take the evidence of Mr Ferguson to show a very vague recollection to the events of that day, particularly noting that his “statement” (read to him in evidence) contained a reference to the plaintiff stepping in a “large hole”, whereas his actual evidence was that there was no such “hole” on the property on the day in question; that I generally found the evidence of the plaintiff to be one of a self-serving kind, ready to reinterpret events in a way which fell favourably towards establishing his case; that the evidence of the female defendant was honestly given, conceding difficulties where they existed; and that the male defendant, while clearly ready to interpret documents to favour his version of events, was generally honest, if not always accurate, in his actual recollections. All evidence about how much was done on the property and how that did, or did not, fit into the time frames proffered has been of insignificant help in determining this matter, essentially for the reason just canvassed. As well, without documentary support for the timing and duration of telephone calls, I place little weight on the recollections of such given so long after the events. No application was made by any party to utilise rule 394 of the UCPR, even given that there was “serious dispute” about such calls.

48. [48]
    To the extent to which those comments on credibility are thought to be contrary to the conclusions that I reached as to the date and time that the incident occurred on the property, it suffices to say that I have relied primarily upon what documentary entries were made relatively contemporaneously rather than relying upon all witnesses’ attempts at recollecting the events of that time. Inevitably, without contemporaneous notes, and without any other surrounding feature – such as a birthday, or similar event – which would reinforce the day of the week and date of the month, the Court has had to deal with generally imperfect recollections.

49. [49]
    The defendants have argued that the consequence of the medical entries on which I have primarily relied is reliable proof that the plaintiff was injured earlier (ie on 24 May 2005) and that he then came to the property 2 days later (26 May 2005) where he really suffered no real injury. Although the plaintiff, and his solicitors, for a long time stated that the date of the incident was 26 May 2005 (including in the Part 1 Notice of Claim), I accept that the plaintiff was in error, corrected that error when he saw the relevant medical records, and suffered an injury when attending the property on 24 May 2005.

50. [50]
    For the defendants’ part, although the notification “history” as mentioned, taken together with the medical evidence just canvassed, might raise doubts about the plaintiff’s veracity, there is just nothing of probative value which suggests that there was an “earlier incident” upon which the plaintiff is now falsely basing an attempt to sheet home liability to the defendants.

Nature of incident

51. [51]
    The female defendant was not at the property when the incident occurred. Thus, the basic evidence concerning the incident has been given by the plaintiff, Mr Ferguson and the male defendant.

52. [52]
    Given the conclusion that I have reached that the incident occurred in the morning of 24 May 2005 – it at least being common ground that any such incident that did occur occurred relatively soon after the plaintiff and his brother-in-law came to that area on the property where the male defendant was using the Lucas portable sawmill shown in the photographs in Exhibit 6 – an initial task is to interpret from the pictorial representation, if possible, where the incident occurred, relevant to the areas depicted by the 4 photographs in Exhibit 6.

53. [53]
    While a great deal was attempted to be made by both sides of these photographs, particularly that of Photograph No 3 in Exhibit 6, there are a number of problems that attend this particular photograph.

54. [54]
    Despite the male defendant giving evidence(which I accept) that the plaintiff had taken many more photographs than the 4 which became Exhibit 6, all the court has before it are these 4 photographs. Further, it is somewhat strange, if the plaintiff was injured as badly as he has asserted both in evidence and to Dr English (namely, that he heard a “snapping” sound and was unable to weight bear initially immediately after the incident), why the many more photographs taken by him were photographically deleted when these 4 were not and, especially, why a photograph was not taken with specific attention to the exact area where the incident is stated to have occurred, especially considering that the plaintiff has stated that Photograph 3 was taken while his back was leaning against the car. The best the plaintiff could do relative to this in evidence was to point to an area off the photograph adjacent to the left hand bottom corner of Photograph 3 in Exhibit 6. For his part, the male defendant asserted in evidence that that photograph did show the actual area – and marked it.

55. [55]
    The problem with Photograph 3 in Exhibit 6 is that its central focus is not on the area at or near to where the incident occurred. The significant difference between the plaintiff’s case and the defendants’ case concerning the area of the incident is to what extent, if any, there was, first, sawdust there and, secondly, if so, the depth of that sawdust and whether its depth was of such a nature as to hide underlying off-cuts from the sawing process.

56. [56]
    No matter how hard one looks at the low definition photographic image in Photograph 3 of Exhibit 6, it is impossible from that photograph to tell how much, if any, sawdust is present in the lower left-hand corner, other than the lightest of layers that might have been the residue from it being tracked there from elsewhere, since there is no evidence that actual milling was done in that area. This is particularly so where supposedly “red” material was designated by the plaintiff as “sawn offs”, and denied by the male defendant to be so.

57. [57]
    What, if anything, this photograph shows is that there was an obvious litter, including off-cuts, of scattered small branches, or twigs, lying on top of the earth in that designated area. But not much more can really be established from that pictorial representation.

58. [58]
    Hence, to a large extent, the surface at that area can only be ascertained from the actual evidence given, informed by what Photograph 3 of Exhibit 6 does somewhat darkly reveal. I found the hand drawn diagram (Exhibit 5) to be of little help, primarily due to its lack of scale.

59. [59]
    As earlier indicated, I do not accept that Mr Ferguson was an accurate recounter of what occurred. This is not only because of the inconsistent assertion in his earlier witness statement about the existence of a “large hole” but also because of his inconsistency between the injury sounding “like a loud crack” and his admission, in cross-examination, that the Lucas mobile sawmill was “very loud” and was being used at that time, especially where he was some distance from the plaintiff and that he did not see what happened. It is not consistent that a “large hole” is equivalent to a cavity created by sawdust covering off-cuts, particularly given that Mr Ferguson neither saw the incident nor examined the area later, and given that he expressly denied in his trial evidence that he saw any hole (after doubting that there would really be a hole). To give him his due, he readily conceded that his memory was “not that good, being so far down the track”. Therefore, when Mr Ferguson described the area generally as containing “rubbish and sawdust”, I am unable to discern any assistance on his part as to the depth of that sawdust. More generally, and consistently with what can be detected from Photograph 3 in Exhibit 6, Mr Ferguson stated that there was a fair bit of timber that was in a round shape, which he stated was actually called a burl off the side of the tree, lying around, and that it was all broken up and just mixed in with the rubbish.

60. [60]
    For the plaintiff’s part, after he had travelled some relatively short distance into the property, along a dirt road, he stated that they came to a clearing where the male defendant was working on a portable Lucas sawmill, cutting timber. The plaintiff admitted that he was “overawed by the place” as a result of seeing a lot of huge, tall, straight trees “everywhere”. The plaintiff stated that he had his camera with him and wanted to take some pictures of the sawmill operating and, when he got out of the car, he looked down and there was “sawdust everywhere”. He then just stepped and the next thing he had rolled his ankle and went down to the ground, adding that that was probably after three steps. He described the ground as “very undulating” with “masses of sawdust everywhere, particularly around the saw”. Asked to describe the area that he traversed before his fall, he stated that it “looked flat”, although it was covered with sawdust. He stated that when going to the ground he heard a loud crack, that the pain was intense and that he then went forward down on his knees. He stated that after the incident he looked back to where he had been and there were twigs and branches and scrap timber underneath the sawdust. As to the timber and branches mentioned, he stated that they were not visible at first, prior to the accident, adding that he disturbed the sawdust and “exposed the rubbish that was underneath”, such rubbish not being apparent to him before he fell. Lastly, he described the gradient of the land as sloping away from him and being slightly down.

61. [61]
    In cross-examination, the plaintiff conceded that, until he got to the property, he did not realise how heavily it was timbered but was aware there was a working sawmill on the property. Further, the plaintiff conceded that, when timber is cut, small pieces of timber are produced and that a large sawmill cutting large logs would produce large amounts of sawdust. The plaintiff also admitted that as he pulled up to the mill site he could see the male defendant working at the Lucas mobile sawmill. The plaintiff rejected the suggestion put to him that the area where he fell was not covered in large amounts of sawdust, stating that there was sawdust everywhere.  When asked about an estimate of the thickness of the sawdust where the incident occurred, he stated that it was deep enough to “cover sticks and branches and off-cuts of timber”, but that it was not mounded.

62. [62]
    The evidence of the male defendant was that the first time he saw the plaintiff out of the car – he having remained seated in the car for a considerable period of time – was when the plaintiff was about two metres from the car and was bent over holding his left ankle. He further states that he went over to the plaintiff and asked him what happened, and that the plaintiff replied that he was “too busy looking around everywhere” and that he had “rolled (his) foot (or ankle) on a stick”. The male defendant stated that the plaintiff was not on his knees, he was merely bent over. Later on, the male defendant identified the bottom left hand corner of Photograph 3 in Exhibit 6 as where he saw the plaintiff so bent over. He described that area as “bare dirt” with some “leaves and stuff” on the ground. He later added that the area in question had no sticks on the ground, no hole and no branches. In cross-examination, the male defendant denied that, at the time, with weather “and the like”, sawdust takes on a darker complexion, asserting that it probably goes lighter and fades, specifically denying that the area of darker brown material in Photograph 3 in Exhibit 6 was clearly sawdust. He also denied that the sawdust extended back from the mill to where the photographer was (who took this photograph). Finally, and contrary to the evidence given by the plaintiff, the male defendant denied that he made some sort of gesture with his arm to the plaintiff and Mr Ferguson to come over and join him at the mill.

63. [63]
    Earlier, and with respect to another matter, I made general observations about credibility. Those observations apply equally here.

64. [64]
    I conclude that, on balance, the plaintiff did roll his ankle in an area which was at, or at least not far from, that depicted by the mark that the male defendant made on photograph 3 in Exhibit 6. Assisted in slight part only by that photograph, I accept that what were, essentially, in that area were scattered off-cuts from trees which had been milled, including off-cuts of a small branch size (that might be generally described as a “stick”) which were approximately circular in dimension. I do not accept that the sawdust was of a kind which hid such an off-cut but that, rather, the plaintiff did not direct his attention to the ground immediately in front of him where he was about to walk and rolled his left boot – and therefore the enclosed left ankle – on that “stick” that would have been easily visible to an ordinarily aware person taking the path he did. I accept that the plaintiff was wearing boots which were appropriate for the occasion; but I do not accept that the male defendant gestured with his arm towards the plaintiff and Mr Ferguson.

Occupier’s Duties

65. [65]
    Apart from the impact that relevant provisions of the Civil Liability Act 2003 (“CLA”) have – to be discussed during this analysis – the initial, general guidance comes from Thompson v Woolworths (Q’land) Pty (2005) 221 CLR 234.  There, in the joint judgment of the High Court, it was held that the status of the person who is the occupier of the land on which the other person in injured is one aspect of the relationship that gives rise to the actual duty of care: at 243 [24].  There, as here, the status can give the occupier a measure of control that is regarded by the law as important in identifying the existence and nature of the actual duty of care: also at 243 [24].  Nevertheless, in Thompson, the purpose for which and circumstances in which the entrant was on the occupier’s land constituted a more significant aspect of the relationship than here because, in that case, the entrant, in pursuit of her own business, was delivering goods to the occupier for the purposes of sale in the course of the occupier’s business and, to do that, she was required to conform to a delivery system established by the occupier: at 244 [26]. 

66. [66]
    In the present case, the status of the defendants is that they were receiving a commercial benefit from the presence of a person such as the plaintiff on the property, because the plaintiff had come, at the defendants’ invitation, to examine the land which was to be, and bought as, part of a combined, but separate contractually, land and business deal. Even so, there was no inspection, or visitor-direction, system established because what the defendants conducted, or allowed to be conducted, on their land was a mobile sawmilling activity undertaken in a reasonably heavily forested rural region.

67. [67]
    In Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341, although it involved a consideration of the Wrongs Act 1936 (South Australia), it was noted by both Callinan and Heydon JJ, comprising part of the majority, that the application of that Act in general reflected the common law and demanded no different conclusion from what the common law required: at [113]-[114].  Gleeson CJ, also the majority, held that the fundamental problem in occupier/entrant cases remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises, even though the problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant: at [8]. 

68. [68]
    The content of the duty is thus framed by what the defendants should have, in all these circumstances, as reasonable people exercising a duty to take reasonable care, done by way of response to a foreseeable risk. Such circumstances undoubtedly included the kind of activity the defendants so conducted on the property, the state of the land itself in its rural context (and absent any factory floor context), the fact that the defendant was a lawful entrant with a commercial interest as the purchaser of the land (and prospective purchaser of the associated business, with the knowledge that that entails of sawmilling) and the ability of entrants to observe what lay upon the earth on any path they wished to take.

69. [69]
    While the content of the duty is important, the other question here is not whether a duty was owed – which it clearly was – but whether that identified duty was breached, given its content.

70. [70]
    Turning, then, to what is often termed as the Shirt calculus, how is it to be applied? As demonstrated by Fraser JA, with whom McMurdo P and Mackenzie AJA agreed, in Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388, the correct approach is to judge whether the magnitude of the risk and the degree of probability of an accident are so slight that reasonableness does not require any corrective action on behalf of the occupier: at [29].  It should be noted, at this point, in dealing with foreseeability, that s 9(1) of the CLA refers to the factors of breach as covering: that the risk was foreseeable (that is, it was a risk of which the person knew, or ought reasonably to have known); that the risk was not insignificant; and, in the circumstances, that a reasonable person in the position of the occupier would have taken the precautions.  The second of those factors is slightly different from the “far-fetched” or “fanciful” reference by Mason J (as then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 from which the calculus springs.  The calculus 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 occupier may have.  Relevantly, section 9(2) of the CLA requires the court to consider, among other things: the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the harm.  As can be seen, there is little, if any, difference between the mentioned calculus and the statutory test. 

71. [71]
    In this case, there is no doubt that there was a risk of harm arising from a person standing on an off-cut of a milled tree left on the ground during or after the milling process. It is also true that this risk was one which the defendants ought reasonably to have known, and one which was “not insignificant”. What is important for this case is whether a reasonable person in the position of each of the defendants would have taken precautions. The identification of the pleaded precautions will be discussed later in this analysis.

72. [72]
    Concerning the matter of whether a response in required, it is clear, both from the common law and from s 9(1)(c) [together with s 9(2)] of the CLA, that the obviousness of the risk and remoteness of the likelihood that other people will fail to observe and avoid it are often factors relevant to a judgment about what reasonableness requires as a response, with the obvious corollary that, in the case of some risks, reasonableness may require no response: see Thomspon at 246 [36].

73. [73]
    In Ellis, Fraser JA, with respect to the matter of obviousness of the risk, after accepting the submission that the possibility that users of the path (there, a footpath) might not act carefully or prudently was a relevant factor, held that it did not mean that a failure by the occupier to notice and correct the source of the risk “bespoke negligence”, particularly in circumstances where there was a finding that the unevenness should reasonably have been observed by someone choosing to walk at that place, because that could properly be taken into account as bearing upon the question whether the risk required a response: at [42].

74. [74]
    What is also important in this analysis is that it is both inappropriate and impermissible to use the benefit of hindsight in the assessment of liability. In Lusk & Anor v Sapwell [2011] QCA 59, Muir JA, speaking generally for the court, referred to that principle in holding that it did appear that the primary judge may have focused unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of persons upon whom the duty was cast having regard to the prospect of the risk of injury: at [22].

75. [75]
    The issue of hindsight was addressed in the High Court in Mulligan v Coffs Harbour Council (2005) 223 CLR 486 by Hayne J – uncontroversially, in light of the other judgments in that case.  He held that, although the judgment about what would have been the reasonable response to the risk must be made after the event, the inquiry is directed to identifying what the reasonable response would have been by a person “looking forward at the prospect of the risk of injury” (emphasis added): at 501 [50].  He added that, because the inquiry is prospective, there is no basis for assuming that the only risk to be considered by the reasonable person “is the particular kind of risk that came to a pass at the place and in the way it did”: at 501-502 [50]. 

76. [76]
    As for the matter of warnings, the High Court noted in Thompson that the conclusion, in any given case, that a warning is either necessary or sufficient itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care, since the whole idea of warnings is that those who receive them will act carefully, as there would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings: at 246-247 [36].

77. [77]
    Since the duty of care is one of reasonableness [see, besides the common law, s 9(1)(c) and s 9(2) of the CLA] it is important to be reminded that “living is not risk free and the community does not want nor expect courts to attempt to make it so by imposing unreasonable and unrealistic standards”: per McMurdo P, for the court, in Lynch v Kinney Shoes (Australia) Ltd [2005] QCA 326 at [14].  As also expressed by Gleeson CJ in Swain v Waverley Municipal Council (2004) 220 CLR 517, the measure of careful behaviour is reasonableness, “not elimination of risk”; and while, “to some extent their neighbours’ keepers”, they are not their neighbours’ insurers”: at 520 [5].

78. [78]
    Finally, with respect to the actual identification of the risk, as held by Gummow J in Roads and Traffic Authority of New South Wales v Dederer (2007) 234 CLR 330, unless the actual risk of injury faced is accurately identified, the court both at first instance and on intermediate appeal can be led into error, because it is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be: at 351 [59].  Further, after referring to authority in which it was observed that, in order that the act may be negligent, there must not only be a reasonable possibility of the act happening but also of injury being caused, he held in the case in question that, far from being a risk with a high probability of occurrence, the probability was in truth very low; and that this fact was masked by a characterisation of the wrong relevant risk: at 351 [61].  The risk here is one of standing on an unstable object while walking across the ground around a rural outdoor business activity.

Obviousness of Risk

79. [79]
    Before turning to a consideration of the common law aspects of this concern, s 15(1) of the CLA states that a defendant does not owe a duty to a plaintiff to warn of an obvious risk to the plaintiff.  Exceptions are provided by s 15(2).  But no exception applies in this case.  Section 16(1) states that no person is liable in negligence for harm suffered by another person as a result of the materialization of an inherent risk [which is defined in s 16(2) as a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill].  No such inherent risk has been identified here.

80. [80]
    Returning, then, to the notion of an “obvious risk”, s 13 of the CLA defines, for relevant purposes, such a risk to a person who suffers harm as “a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person”.  The various sub-sections of s 13 then provide some further features of such a risk.  Section 13(2) states that obvious risks include risks that are patent, or a matter of common knowledge.  Section 13(3) states that a risk of something occurring can be an obvious risk even though it has a low probability of occurring.   And s 13(4) states that a risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

81. [81]
    Nevertheless, the only concern here is with the effect of s 15 of the CLA.  Thus, the focus here is more narrow than that which would apply should the full effect of Division 3 of Part 1 of Chapter 2 of the CLA have applied.

82. [82]
    The plaintiff in this case objectively (as a reasonable person) would have been aware that he was entering onto a rural property upon which milling of trees had been, and was being, conducted. There was nothing in his subjective unawareness that precluded the risk – identified earlier – from being obvious. The conclusion is not displaced by the risk not being patent or not a matter of common knowledge. It was patent in the sense that it was manifest in its status as a risk and was a matter of common knowledge because it can be taken to be common knowledge that an off-cut of the type described would be within that ambit of general community understanding. Furthermore, even though the risk had a low probability of occurring, that is not a statutorily defined negativing feature and the same can be said for any lack of prominence, conspicuousness or physical non-observability (although I have found in this case that it was so physically observable).

83. [83]
    Having reached that conclusion, before considering the impact of the common law, I find that s 15(1) of the CLA does apply and that, therefore, the defendants did not owe a duty to the plaintiff to warn of that risk.

84. [84]
    To the extent that the common law is inconsistent with s 15(1) of the CLA it is, necessarily, excluded from operation in a case such as here.

85. [85]
    Nevertheless, should I be wrong about the extent of the application of the CLA, the approach as outlined by the High Court (above) would apply in this case to the extent that warning signs can only serve a purpose if they are likely to inform the person of something that the person does not already know, or to draw attention to something that the person may have overlooked or forgotten, with the obviousness of the danger being potentially important in deciding whether a warning is required: see, for example (although in dissent generally), Gleeson CJ in Vairy v Wyong Shire Council (2005) 223 CLR 422 at 427 [7].

86. [86]
    Here, in terms of obviousness at common law, I would still find that the danger was of a kind which was obvious (at least in the sense that it gave rise to an expectation that persons entering upon the property in the way that the plaintiff did would take reasonable care for their own safety). As indicated in Phillis v Daly (1988) 15 NSWLR 65 by Mahony JA, concerning a log in a parking area outside a hotel in the country, is would cause “no surprise” if logs were to be upon the ground, and any danger was obvious and ordinary: at 75.  Thus, in terms of “purpose”, any warning sign would be unlikely to have informed an entrant such as the plaintiff of something that that person did not already know, or was likely to draw his attention to something that he might have overlooked or forgotten.  It is apparent that the content of such a warning would be difficult to express.  Such difficulty is illustrated by paragraph 6 of the Statement of Claim in that the (absent) warning is blandly alleged to be one which ought to have informed “of dangers or risk to his health or wellbeing whilst using the property”, expanded by paragraph 7(c) to encompass both by signage, and otherwise, “of the existence of the off-cuts of wood in circumstances where they were not visible by virtue of the covering of sawdust” (emphasis added).

87. [87]
    Given my finding about the existence of the visibility of the small branch off-cut because of the absence of any covering of sawdust, it is very difficult to discern what the content of such “signage”, or otherwise, should have been. There was no evidence led at trial as to that detail.

88. [88]
    In the final analysis, a warning that people should “take care” would, to my mind, achieve nothing. It would fall within that excluded variety identified in Thompson, because it would fall short of the expectation of reasonableness about people modifying their behaviour in response.  Accordingly, I conclude that a warning of the kind pleaded by the plaintiff was neither necessary nor, even if given a proper expression, sufficient itself, lacking the requirement that notice would have been taken of it and persons would then have exercised the necessary care for themselves.

89. [89]
    As for the defendants’ contention that there were signs to the effect of keeping clear of the sawmill, it is obvious from Exhibit 19 that the relevant warning attached to the Lucas sawmill was not directed to the relevant purpose. It simply stated that persons without eye or ear protection should stand at least “20 feet away” because failure to do so could result in injury. There was no injury which could be in any way attributed to the actual use of that sawmill in that way.

90. [90]
    Therefore, the issue of liability and its imperfect corollary, contributory negligence, are to be determined against the background that has been canvassed in the discussion of these principles.

Determination of Liability

91. [91]
    Although the cost of implementing steps to fully clear the property immediately around the Lucas sawmill would not have been high, I conclude that the defendants cannot be legally criticised for not taking such steps given the obviousness of off-cuts and sawdust (already discussed), the low magnitude of the risk (of injury from standing on a relatively small object lying on the relatively bare earth of a rural, tree-filled property), the low degree of probability of it eventuating (when it was so ordinary) and the rarity of persons inspecting the property who would not be cognisant of what was being conducted on the land. For the reasons also previously discussed, no warning was necessary. The remaining particulars of negligence are either of no relevance or meaningless (given their generality). Consequently, I hold that there has been no negligence proved. As for contributory negligence, to the extent that the Further Amended Defence raises it by alleging that the plaintiff “has his own duty of care”, it is unnecessary to determine, given the conclusion on negligence. If I should have erred in that, I would have found, noting s 23 of the CLA, that it was 100%, with the same consequence as above.  The plaintiff, by failing to keep any lookout in that area – which called out for such – was the sole author of his own misfortune.  Given the extended time that he took to emerge for the car, he had ample opportunity to observe the terrain and note the condition of this particular rural property.

Injury and Aftermath

92. [92]
    I have found that the plaintiff did roll his boot on a stick on the defendant’s property on 24 May 2005, with consequent immediate injury to the left ankle. But the actual injury suffered has also been the matter of some contest.

93. [93]
    The initial examination of the plaintiff by Dr English on 25 May 2005 led to a preliminary diagnosis of a sprain to the left ankle, subject to a review after x-rays were taken. As also earlier noted, the x-ray taken by Queensland Diagnostic Imaging on 26 May 2005 stated that no definite bony injury had been demonstrated, although a hallux valgus deformity was noted.

94. [94]
    Although there were many further visits by the plaintiff to the Golden Beach General Practice after 24 May 2005 (beginning on 1 June 2005 and going through to 8 December 2005), there is no reference in the Practice notes to any complaint of pain of any kind in the left ankle prior to the mention in the Practice notes by Dr Byrne of Dr Lane on 29 December 2005.  At this point, it should be noted that there is an entry for 30 July 2005, by Dr English, that the plaintiff had a fall the night before and landed heavily on tiles with instant pain in the left knee which led to constant throbbing pain and swelling and an inability to flex the knee.  The x-ray taken at the time (Exhibit 10) detected no fracture, but degenerative changes were noted.  Although the defendants tried to make something of this, there is nothing relevant to the eventual diagnosis concerning the left knee by Dr Cook that would give this incident significance.  At least so far as Dr Byrne is concerned (who did most of the examinations), he gave evidence orally that he did usually make notes of all complaints to him.

95. [95]
    The plaintiff was referred to Dr Lane on 27 October 2005. The letter from Dr Lane is dated 21 November 2005 and was written to Dr Byrne. In it, Dr Lane, an orthopaedic surgeon, refers to Dr Byrne’s request to see the plaintiff regarding an “injury to his left ankle”. Among the plaintiff’s complaints to Dr Lane was stated to be a feeling of sharp pain in the heel with a feeling of the foot giving way, in circumstances where it is noted that the pain is the “biggest issue”. Dr Lane’s “impression” was that the plaintiff had a partial rupture of approximately 50% of the musculotendinous junction of the left tendo-achilles. Dr Lane recommended that the plaintiff get a half inch heel raise to the normal boot and also an ultra-sound of the left tendo-achilles.

96. [96]
    Although there were many more visits to that GP Practice during 2006, there is, again, no reference by any examining practitioner of further complaints of left ankle pain.

97. [97]
    Dr Lane further reported to Dr Byrne on 21 January 2008 that he had reviewed the plaintiff and had caused new x-rays of the left ankle and CT Scans of the left ankle to be taken (which showed that the plaintiff was getting significant osteoarthritis within the ankle joint). A later report of 12 May 2008 from Dr Lane indicates that the left ankle was severely affecting him, with the offer by Dr Lane to speak to his colleagues at the Nambour General Hospital.  It was obviously as a result of that that Dr Parker – referred to below – became involved.  There is no further report of Dr Lane; and he was not called as a witness.

98. [98]
    Before turning to the evidence of the orthopaedic expert called on behalf of the plaintiff, Dr Allan Cook (who was not the plaintiff’s treating doctor), reference is necessary to the report of Dr Parker, an orthopaedic surgeon and director of orthopaedics at the Nambour General Hospital, dated 17 June 2008. This was written between the dates of the examinations conducted by Dr Cook. In that report, Dr Parker notes that the plaintiff complained of severe pain in his left ankle, having had three years of symptoms. He also complained of significant pain in his left knee. The plaintiff did not state that he was wearing any raise such as that suggested by Dr Lane but, rather, that he used a neoprene brace on his ankle. On an examination of new x-rays of his ankle then taken, Dr Parker stated that these showed that he had moderate to severe arthritis in his ankle and that repeat x-rays of the left knee showed a Grade IV lateral compartment osteoarthritis in that left knee. It was suggested, apparently for the first time, that he try to wear a “moonboot” and it is stated that Dr Parker had organised this for him, as well as a repeat of the CT scan. A further report of Dr Parker reports an examination of the plaintiff on 11 August 2008 and advice to him that surgery was “best avoided” because of the “major medical problems of cardiomyopathy”. The report, dated 12 August 2008, states that the plaintiff said that his ankle had been much better in the brace and that he was happy to continue with the moonboot. On further examination by Dr Parker, referred to in his report of 30 September 2008, it is revealed that the plaintiff had been managing “pretty well” in his moonboot, although he had had a “recent” acute exacerbation of his symptoms for a few days. The medical examination showed that he had a reasonable range of motion of the ankle and that it was moderately tender. Dr Parker stated that he had organised an injection of cortisone.

99. [99]
    Following the examinations by Dr Cook, Dr Parker, in a report dated 6 June 2009 stated that the plaintiff indicated that his ankle was “not too bad” in the moonboot, although he was thinking about having a cortisone injection into it, but that he was struggling a bit with his left knee and requested a cortisone injection for that. Importantly, Dr Parker stated that he certainly did not want to do any operations on him.

100. [100]
     The last report which was submitted into evidence, from Dr Parker, who was also not called as a witness in the plaintiff’s case, was one dated 14 January 2011 (although stated as typed on 12 January 2011). He stated that the plaintiff had been seen by Dr Coverdale, a physician, who had assessed him as fit to proceed with surgery and that, as a result, he had booked the plaintiff for a left knee replacement for which the plaintiff was “keen to go ahead”.

101. [101]
     Turning, then, to the reports of Dr Cook. They are dated, respectively, 14 March 2008 and 18 December 2008. For the first, the plaintiff was seen and examined on 28 November 2007 and, for the second, was seen and examined on 26 November 2008. Despite two reports having been given, in terms of the ultimate diagnosis and prognosis, it is more useful to refer to the later. In that report, the plaintiff stated that “over the last twelve months” he had had problems with his left knee which is consistent with Dr Parker’s report of 17 June 2008 - and that this joint had been getting worse over this time “due to his altered gait and favouring his left ankle and foot”. The first report of Dr Cook does not refer to any left knee problems in any specific way and the examination of the left leg and ankle showed the plaintiff was only wearing a left side elasticised ankle support. After examination of the plaintiff’s left knee and left ankle and a consideration of x-rays taken in 2005, 2007 and 2008 and a CT Scan of the left ankle carried out on 10 January 2008, a diagnosis was reached that the plaintiff had sustained, as a result of an incident that occurred in late May 2005, an extensive soft tissue injury and “possible” avulsion fracture and ligament injury to various aspects of the left ankle, as well as extensive bruising and haematoma and tearing of soft tissues, together with a secondary aggravation to pre-existing degenerative changes in the left knee joint.

102. [102]
     Concerning the left knee, Dr Cook, in his second report, stated that, although the wearing of the moonboot was beneficial for the left ankle and foot, it was not helping the left knee. The report, unlike the evidence he gave before me at trial, does not refer to a way of attempting to neutralise the effect on the left knee by also building up the support to footwear worn on the right foot. When Dr Cook was asked what he meant by “possible” fracture and injury in this report, he stated that he was referring to the consistency between the incident as described to him and what he saw on examination and reviewing the x-rays and CT Scan.

103. [103]
     As to the assessment of impairment, it was Dr Cook’s opinion that the plaintiff had a “permanent/partial impairment in the order of 15% taken on the left lower limb as a whole” and that this equated to a “6% whole of person impairment”.

104. [104]
     There was no expert medical evidence called by the self-represented defendants.

105. [105]
     When examined in chief, Dr Cook’s opinion of the effect of what the CT Scan showed was that the plaintiff had a “much more severe ligament and avulsion fracture” of the left ankle joint than the x-rays showed. As to the previously asymptomatic nature of the arthritis in the left knee, Dr Cook’s view was that the knee replacement surgery has been brought forward by a number of years, and that could have been anywhere from 2 to 10 (or 12) years, noting that, in any event, he would eventually have required a total knee replacement. Dr Cook also stated that, if the plaintiff had worn on his right foot the built up sole that he suggested, he thought that the aggravation to the left knee would not have been as rapid or progressive. As to whether he would recommend surgery to the left ankle and left knee, it was his view that he would never recommend surgery to the ankle and would be reluctant to advise surgery to the knee. Lastly, in re-examination, Dr Cook stated that he actually did not give the plaintiff any instruction concerning the effect of wearing of the moonboot alone on the second examination, although he did state that he warned the plaintiff that it could “also aggravate his lower back”. As to what he would advise now, if surgery were not to proceed, he stated that, even though he did not express it in his report, he would be recommending some form of surgical boot to support the left ankle, with an equal weight and thickness of boot on the other side to try and even the plaintiff up and reduce the stress loading on the left knee and lower back. It must be emphasised that the plaintiff cannot be judged on what he was never previously medically advised to do, unless such absence of advice was grossly negligent – which it was not: see Mahoney v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522, at 529.

106. [106]
     Given that there was no contrary expert evidence led from any orthopaedic surgeon, relevant authority requires this Court to accept what Dr Cook has opined unless convinced that there is error either in the assumptions made and proved or in the reasoning adopted: see Heydon J in Dasreef Pty Limited v Hawchar [2011] HCA 21 at [64]-[94].  Neither of those has been demonstrated here.  While it is concerning that there is no notation of any complaint of pain to the plaintiff’s treating General Practitioner for significant periods of time, they are contained in the reports of Dr Lane and Dr Parker and the diagnosis from x-rays and CT scans taken are consistent with what those investigations revealed.  Dr Parker had noted previous knee procedures to both knees.  Therefore, it is unlikely that the observed scarring was missed by Dr Cook.  Further, although the moonboot had been advised in 2008, the plaintiff’s complaint of pain to Dr Cook was of a longer duration.

107. [107]
     Accordingly, I find that the plaintiff’s injury as a result of the rolling of his left boot and, therefore, his left ankle on 24 May 2005 has led to a both an extensive soft tissue injury and avulsion fracture and ligamentous injury to different parts of the left ankle joint, together with a secondary aggravation to a pre-existing degenerative change in the left knee joint. I find, further, that despite the opinion of both Dr Byrne and Dr Cook that the plaintiff should not undergo any further surgery, he intends to do so under the hand of Dr Parker.  According to Dr Cook, while a knee replacement was always inevitable, there has been an acceleration of the requirement for it.  Given that neither Dr Lane nor Dr Parker has given evidence, it is impossible to judge the likely success of such an operation; but the prospects must be good given the complications inherent in operating at all and where the purpose of it would be to relieve the left knee and left ankle pain.

108. [108]
     Therefore, I must bring into account the probability that there will be pain relief, although the trauma and aftermath of the operative procedure have been accelerated by somewhere between 2 to 10, perhaps 12, years. As for the continuing disability, Dr Cook’s prognosis was based on the absence of surgical intervention. But is has not been demonstrated by the defendants that the disability will decrease, despite the pain relief.

Work Capacity

109. [109]
     In the examination-in-chief of Dr Cook, he stated that, as a result of the instability in the left ankle joint, despite efforts to stabilise the ankle, he did not think that the plaintiff would have been able to actually work in a sawmill or be involved in getting the logs mounted on the runners to feed them through the saws. He stated that, at best, the plaintiff would have been able to do a little bit of supervision, but that his main role would have been more office, or administration, type work. With respect to Queensland Ambulance Service (“QAS”) teaching work, Dr Cook was of the view that the plaintiff would not be able to support or carry an injured or disabled person, or anyone on a stretcher, although he would be able to do the lecturing side of it but, even there, he would have difficulty getting down to the ground and demonstrating CPR and first-aid type techniques.

110. [110]
     When cross-examined, Dr Cook said that, apart from the injury, the plaintiff would not have been able to run a sawmill single handedly, although he would have been able to run and supervise a sawmill. In particular, he conceded that the plaintiff would have been able to be actively involved in the making of furniture, the running of the business and general care and maintenance of the business but, because of “his various other medical problems”, he would not have been able to do the particularly heavy work and would have needed to have employed someone to do that. With respect, in particular, to the shoulder injury suffered in 2004 (in a car accident), Dr Cook was of the view that this would have prevented the plaintiff from working above head height and that he would have some pain associated with heavy lifting. See, also, the report of Dr Walsh, orthopaedic surgeon, of 15 February 2005, regarding the problems with that shoulder then: Exhibit 10.

111. [111]
     Dr Byrne, who was, in the main, the day-to-day treating doctor for the plaintiff, dealt with the multitude of problems that the plaintiff experienced both prior to late May 2005, and thereafter. With respect to the left shoulder condition, Dr Byrne expressed the view that: prior to that motor vehicle accident in 2004, while the plaintiff had problems in that shoulder, they were stable; but the accident in 2004 exacerbated that “tremendously” and created a lot of problems for the plaintiff, expressing the view that he probably needed a shoulder replacement (but that his health problems precluded that). He noted that, unfortunately, there was a lot of wear and tear and arthritis in the shoulder and that, for pain relief for both the shoulder and other things, he consulted a pain specialist at the Nambour General Hospital, Dr Paul Frank.  After being taken to a letter from Dr Frank to him dated 14 March 2011, Dr Byrne stated that, although the plaintiff did continue to get pain in the shoulder, most of the pain came from the knee and ankle, but agreed that he was “certainly not out of the woods with his left shoulder”.

112. [112]
     Dr Byrne further agreed that, consistently with the letter he wrote to Suncorp in 2005 concerning the 2004 motor vehicle accident, the plaintiff would never have been able to do full labouring work with the shoulder injury. With respect to the co-morbidities, Dr Byrne stated that in 2006 the plaintiff developed problems with heart failure, subsequently requiring a bi-ventricular pacemaker to improve the condition. Further, besides the matter of severe cardiomyopathy involving heart failure (just discussed), the plaintiff had Chronic Obstructive Pulmonary Disease (“COPD”), hypertension, gout and simple morbid obesity, all superimposed upon a benign prostatic hypertrophy, with medications. Dr Byrne admitted, from a “heart” point of view, the plaintiff really could not be doing heavy labouring work and, with respect to the other co-morbidities, he would not have thought they would have much effect on working capacity as a labourer, although the obesity would contribute.

113. [113]
     Dr Byrne also completed a form relating to the plaintiff applying for a disability pension, dated 6 October 2008. In that, Dr Byrne stated that the main two conditions were COPD and the congestive cardiac failure. Further, on that form, he stated that the plaintiff was unable to work due to shortness of breath and poor energy levels, stating that the then current impact of the condition on the plaintiff’s ability to function was expected to persist for more than 24 months, with the effect deteriorating.

114. [114]
     With respect to a document relating to an application for a carer’s allowance for the plaintiff, dated 29 May 2007, Dr Byrne agreed that the plaintiff had said to him at that time that he needed help to go up and down the stairs.

115. [115]
     In re-examination, Dr Byrne stated that the plaintiff was able to work in the business of the sawmill until he suffered his heart trouble and that that trouble did not stabilize until sometime in 2008, indicating that the plaintiff had some capacity for work even at the time in 2007 when applying for the disability pension. As to the plaintiff’s working capacity at the time of the incident in late May 2005, Dr Byrne stated that the plaintiff had told him that he was buying into the sawmill and the furniture business because he felt that his pain at the time in his right shoulder “might preclude him from getting a job with someone else”.  When directed to whether there was improvement in the left shoulder since 2005, Dr Byrne stated that the shoulder had then certainly not been the focus of the problem as much as the leg, although he still got pain in the shoulder and restriction in movement, and that it did not appear to be the main focus of his health problems now.

116. [116]
     The plaintiff’s own evidence was to the effect that his shoulder injury from the motor vehicle accident did not preclude him from lifting very heavy weights, up to 60 kilogrammes. It is difficult to accept that this is other than a boasting exaggeration, given the medical opinion expressed.

117. [117]
     As far as one is able to detect from the myriad of problems that the plaintiff had before late May 2005, has suffered since then and continues to suffer, it would appear that:-

• as at early May 2005, he had a restricted capacity for labouring work but was not adversely affected by any left leg problem, being able to supervise in a general way and do all administration work;
• as a result of the incident in late May 2005, he had an even more restricted capacity to do any labouring work, but that his supervisory and administrative capacities were unaffected;
• in early 2006, he was admitted between 8 and 17 February to the Nambour General Hospital with cardiomyopathy symptoms, and in late March 2006 had discussions with Dr Byrne concerning his shoulder and a frustration over a “loss of function”;
• in mid 2006, the plaintiff was rendered incapable of working by severe chronic asthma and severe dilated cardiomyopathy and that that incapacity eased somewhat after the complications arising from a pacemaker insertion in October 2006 were resolved by mid 2007, although he was still then disabled by his pulmonary disease;
• in mid to late 2007, according to Dr Andrew Galbraith, a visiting consultant cardiologist, in a report to Dr Bryne dated 18 October 2007, the plaintiff’s biggest problem, apart from his breathlessness, was pain in the left shoulder which was actually impairing his capacity to do things, concluding that, overall, from the cardiac and pulmonary viewpoint, the plaintiff was “holding his own” and was improving from his acute exacerbation of chronic bronchitis;
• as at mid 2008, according to a further report of Dr Galbraith dated 12 June 2008, the plaintiff was “not too bad” from a physical viewpoint, but he was “stressed” because his son was pulling out of the family business making furniture;
• in late 2008, the plaintiff complained of shortness of breath when lying flat or working in the garden and was further diagnosed with “depressive symptoms”, and complained to Dr Byrne that he felt frustrated by “loss of health”;
• during 2009, Dr Byrne noted that he had trouble breathing due to “infective exacerbation of COPD”, was admitted mid year to hospital with a chest infection and secondary right side heart failure, and in late 2009, although the plaintiff’s caridomyopathy was well controlled, his main problem was severe COPD, with an asthmatic component;
• in May 2010, he attended the Emergency Department at Caloundra Hospital for “general unwellness”, while late in the year he had significant right side leg pain (after expressing to Dr Byrne on 25 February 2010 that he “generally hadn’t been well”); and
• in 2011, according to medical reports for that year, the plaintiff’s condition was summed up in the report of Dr Frank to Dr Byrne dated 23 June 2011 to the effect that the plaintiff “is essentially palliative care, with end-stage cardiomyopathy, COPD, pulmonary hypertension etc”, and being significantly opioid dependent, with his functioning as fair and his quality of life as fair for the co-morbidities that he has, while also, according to Dr Byrne, needing a “shoulder replacement”.

118. [118]
     Despite the apparently positive comments by Dr Byrne, it is difficult to see that the plaintiff’s capacity for work of any significant kind has been different from mid 2006 to the date of trial.

119. [119]
     When that is coupled with the fact that the plaintiff’s business, from the time of his incapacity from mid 2006 onwards, was taken over by his son who, even in the plaintiff’s own view, was unsuccessful to a degree to which the business was valueless and which led to the plaintiff’s own bankruptcy, it is difficult to discern any significant loss of earning capacity productive of financial loss apart from late May 2005 to April 2006 (inclusive). And even for that period, given that the plaintiff did, in all medical opinions, still have a capacity to work in the business he had bought, though reduced, the loss of earning capacity productive of financial loss would, at best (given Dr Byrne’s opinion of his non-related work difficulties), be limited to basing the calculation on the amount of $800.00 per week that he paid to John Duffett. The evidence is to the effect that was for three months.

120. [120]
     One of the significant problems – even if not a barrier – in the plaintiff’s case is that there has been no documentary or supporting evidence concerning the monetary extent of loss, apart from oral evidence given by the plaintiff himself. Although the plaintiff blames his lack of documents on his son’s removal of the plaintiff’s briefcase which the plaintiff states to have held all relevant documents, no evidence, even from some other business operator conducting a similar business during the relevant times, was led as indicating the general nature of the loss.

121. [121]
     It cannot be that the causative link between continuing incapacity resulting from the left ankle injury and its effects (including the complications it has generated in the left knee) is not broken by the plaintiff’s son’s ruination of the business in question, even if the plaintiff could have established that he had an ongoing incapacity productive of financial loss after mid 2006. The reason for the plaintiff involving his son was not because of the left ankle/knee problems. He was, as discussed, otherwise quite unwell. In Leschke v Jeffs [1955] QWN 67, the plaintiff was imprisoned some 2 years after the incident which caused him injury.  The Court (Hanger J) held that the loss of earning capacity was not productive of financial loss for the period of imprisonment: at 89.  Windeyer J in Faulkner v Keffalinos (1970) 45 ALJR 80 expressly approved of the outcome: at 85.  Hoare J, in Antonatos v Dunlop, Allsopp and Ors [1968] Qd R 102, held that a plaintiff was not entitled to be reimbursed for the actual loss he had sustained as a result of a sale of his business interest at an undervalue, which he sold because of his injury, although he was entitled to damages to compensate him for the ordinary foreseeable consequences of the injured state that he was reduced to: at 116-117.  Although the reasoning may not have survived Fox v Wood (1981) 148 CLR 438, the circumstances in Antonatos are distinguishable because the business here was not sold at undervalue, rather it was entrsuted to the plaintiff’s son whose own actions led to its demise.

Overview of Quantum

122. [122]
     The plaintiff, in his submissions, correctly submits that the CLA applies to the assessment of quantum for the plaintiff, with appropriate reference to particular provisions of that legislation.  He has made, also, detailed submissions concerning such an assessment, including the provision of various schedules.  They will be dealt with in turn.

General Damages

123. [123]
     In the definitions for the relevant Chapter 3 of the CLA, “general damages” are defined to mean, relevantly for present purposes, pain and suffering and loss of amenities of life.

124. [124]
     By s 61 of the CLA this Court must assess an injury scale value (“ISV”) under the rules provided by the Civil Liability Regulation 2003 and have regard to the injury scale values given to similar injuries in previous proceedings: see s 61(1)(c)(i) and s 61(1)(c)(ii).  Nothing has been given to the Court of the latter kind.

125. [125]
     By s 62 of the CLA and s 1 of Schedule 6A of the Regulation the general damages are calculated, once the particular scale value is assessed, by multiplying the scale value by the designated amount.

126. [126]
     Since I have accepted that the left knee is associated with the left ankle injury, being the second of the two identifiable injuries under Schedule 4 of the Regulation, s 7 of Schedule 3 of the Regulation has application.  By s 7(1), if an injured person has a pre-existing condition that is aggravated by an injury for which the court is assessing an ISV, in considering the impact of the aggravation of the pre-existing condition, the court may have regard only to the extent to which the pre-existing condition has been worse by the injury.  Additionally, s 4 of Schedule 3 states that if a court considers that the level of adverse impact of multiple injuries on a person is so severe that the maximum dominant ISV is inadequate to reflect the level of impact the court may make an assessment of the ISV for the multiple injuries that is higher than the maximum dominant ISV.  Nevertheless, s 4(3)(b) states that the ISV for the multiple injuries should rarely be more than 25% higher than the maximum dominant ISV.  This provision only applies, of course, if s 3 of Schedule 3 is not otherwise applicable.  It provides that, in assessing the ISV for multiple injuries, the court must consider the range of the ISVs for the dominant injury of the multiple injuries and, to reflect the level of adverse impact of multiple injuries on an injured person, the court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the court would assess for the dominant injury only.

127. [127]
     Dr Cook in his report of 18 December 2008 has assessed a permanent partial impairment in the order of 15 per cent taken on the lower left limb “as a whole”, equating to a 6 per cent whole of person impairment according to AMA 5. Sections 9 and 10 of Schedule 3 provide that, in assessing an ISV, a court may have regard to matters other than Schedule 4 to the extent that they are relevant in any particular case and that the extent of a whole person impairment, while an important consideration, is not the only consideration affecting the assessment of an ISV.

128. [128]
     The plaintiff has contended that Items 139 and 143 of Schedule 4 provide the appropriate ISV range. I accept that those Items are appropriate. Nevertheless, it is not clear at all from that report of Dr Cook which is the dominant injury. Nevertheless, comparing the conclusions in that report to that in the earlier report of 14 March 2008, it would appear that the involvement of the left knee has significantly increased both the specific and the general percentages.  But, since the knee “injury” is an aggravation of a condition which has only made the arthritic condition worse by between 2 and 10, perhaps 12 years, I have chosen Item 143, although, as the plaintiff’s written submissions remark, both have the same ISV range.  And, since the impairment of 6 per cent of the whole person (encompassing both injuries) means that an ISV at or near the bottom of the range will be appropriate, the chosen ISV should not be more than an ISV of 8, bearing in mind s 9 of Schedule 3.

129. [129]
     Applying an ISV of 8, the appropriate calculation is $8,600.00.

130. [130]
     There is no satisfactory evidence from the medical opinions expressed in evidence that any orthopaedic surgeon would actually amputate the plaintiff’s left leg, despite the plaintiff having discussed the matter with Dr Byrne. Accordingly, it is not appropriate to allow the maximum possible ISV, or even an uplift.

131. [131]
     Section 60(1) of the CLA precludes a court from ordering interest on any award for general damages.

Past economic loss

132. [132]
     There is clear evidence that the plaintiff bought the sawmilling business through a company, Aussie Niche Timbers Pty Ltd. From Exhibit 7 (the ASIC extract), the company was deregistered on 11 October 2009. Prior to that time both the plaintiff and his wife, Carolyne Ann Swindells, were directors, and both were secretaries, of the company. The only shareholder was the plaintiff.

133. [133]
     From the evidence given to the Court, the plaintiff’s wife was not the controlling mind of the company, with her role limited to obtaining cash for, and paying, wages to employees. Her evidence was of very limited assistance, both because she had little to do with the company and otherwise had a poor recollection.

134. [134]
     As the New South Wales Court of Appeal held in CSR Ltd v Amaca Pty Ltd [2007] NSWCA 107, following Husher v Husher (1999) 197 CLR 138, a plaintiff is worth what he could recover from a business if the corporate business which he was operating was really his own business entirely: at [39], per Young CJ in EQ, with whom Mason P and Hodgson JA agreed.

135. [135]
     I accept that the principle in Husher applies here.

136. [136]
     The plaintiff has claimed two distinct amounts for past economic loss. The first is the sum of $10,400.00 being wage payments made to John Duffett (mentioned earlier), for 13 weeks at $800.00 per week for the period between August 2005 and October 2005.

137. [137]
     Although the plaintiff, for expressed good reason, no longer has any documentary evidence, I do accept that this person was paid that sum over that time, despite the evidence of the plaintiff that that person would not come to Court because of his hostility to the plaintiff.

138. [138]
     But three problems remain with awarding that figure. The first, taken from the evidence of Dr Byrne, is that the plaintiff had expressed to him that, because the pain in his right shoulder might preclude him from getting a job with someone else, he was buying into the sawmill and furniture business. Secondly, it is clear from the evidence of Dr Cook that the plaintiff would have needed to have employed someone to do the particularly heavy work in any event, even without the ankle injury.  Thirdly, in terms of work history, the plaintiff was on a disability pension from 1991 to 2005, admitting in evidence that for the majority of the time, it was because he was “unable to work”.

139. [139]
     The conclusion that I have reached is that the additional factor of the ankle injury would have led to some additional expenditure on the company’s behalf above and beyond that which would have been required if the plaintiff had not been injured in mid 2005. But this matter was not explored, unfortunately, in any detailed way in the evidence. Thus, it is more appropriate in this case to calculate some general figure that covers past economic loss.

140. [140]
     Before that can be done, it is necessary to look at the second aspect of the plaintiff’s claim for past economic loss. That is based upon an alleged inability to operate the business, or take up the option of teaching work with the QAS “at an expected income of $18 per hour for at least 20 hours per week”, for the 198 weeks between 1 January 2008 to the present. Even at a discounted rate (presumably for contingencies) of $250.00 per week, the sum claimed is $49,500.00.

141. [141]
     Again, from my consideration of the plaintiff’s work capacity, it has been difficult to conclude the period from 1 January 2008 to the present time would have been one where the plaintiff had the requisite working capacity productive of financial loss which was causally related to the lower left leg “injuries”. Even if the plaintiff had an ability to operate his business, it no longer existed after his son’s ruination of it. That does not mean, though, that he should not be compensated for the ordinary foreseeable consequences of the injured state that he was reduced to. The only potential basis is the asserted option of teaching work with QAS. No evidence of any kind was led that there was, during the relevant period, teaching work of such a part-time nature constantly available with QAS, or that it was likely to be offered to someone who had the general medical condition of the plaintiff (absent the ankle/knee “injuries”).

142. [142]
     I do not accept the plaintiff’s submission that, had he not been injured, it was open to him to attempt to salvage something from his business in January 2008. While he had some, if very little, of the equipment at his residence, he was personally bankrupt even though the company was stated to be debt free. There is no evidence at all that any finance would have been available to permit him to restart his business, particularly given the general medical condition he was in.

143. [143]
     Section 55 of the CLA deals with the position when earnings cannot be precisely calculated.  By section 55(2), the court may only award damages if it is satisfied that the person has suffered loss, having regard to the person’s age, work history, actual loss of earnings, any permanent impairment and any other relevant matters.  Irrelevant for this case is the limitation imposed by s 54(2). 

144. [144]
     Applying the methodology of Malec v JC Hutton Pty Ltd (1990) 125 CLR 638, though guided by events that have occurred, the best that the Court can do is to conclude that there would be some number of weeks in the relevant period from late May 2005 to late January 2012 in which the plaintiff may have been able, but for the relevant incident, to obtain part time work or, at least in the early part, either been paid by his company or have his company outlay sums for labouring assistance that the plaintiff could not provide himself.

145. [145]
     It is just impossible, given the evidence which was led, to select a particular weekly income, although it is not improbable that the asserted rate of $250.00 per week was attainable, on a net (after tax) basis. It is difficult, on Malec principles, giving proper effect to the balancing of contingencies, to take the number of weeks as any more than 100 in total, particularly given the ongoing pre-existing and continuing morbidities so graphically illustrated by Exhibit 10.

146. [146]
     Doing the best the Court can, it will thus assess past economic loss at $25,000.00. 

Future economic loss

147. [147]
     Section 55(2) also applies to this head of damages. As instructed by Ballesteros v Chidlow [2006] QCA 323, although a global sum may be the end product of the reasoning, some reasoning must be undertaken (a point strongly advanced by Fryberg J).

148. [148]
     Again, the principles in Malec apply.

149. [149]
     Given that the plaintiff is presently 61.5 years of age, regardless of what retirement age is recognized by the Commonwealth government for a pension, it is to the plaintiff’s background of working history and medical condition to which attention needs to be directed.

150. [150]
     Taking the above discussed rate of $250.00 net (after tax) per week, it is difficult to see for a person, who has been described as a person on “essentially palliative care”, and being significantly opioid dependent, that he had much capacity for work (which would have been productive of the financial loss) left in any event, especially given his history of the couple claiming, and obtaining, full pension and carer benefits. The best that one can do, since s 57(2), together with s 57(1)(a), of the CLA mandates the discount rate of five per cent, is to conclude that in all of the circumstances the plaintiff may, until at least aged 65, have applied for, and obtained, remunerative part-time work for several months in any one year.   At 8 weeks, earning $250.00 net (after tax) per week, on a yearly basis, the value per week would be approximately $40.00.  For 3.5 years at a discount rate of 5 per cent, a result of $1,760.00 could be calculated. 

151. [151]
     Although it is a very low figure, bearing all matters in mind, it would be appropriate to allocate $2,000.00 for future economic loss, there being no evidence at all about superannuation entitlements pursuant to s 56 of the CLA.

Out-of-pocket expenses

152. [152]
     Exhibit 11 is a printout from the Golden Beach Pharmacy relating to the plaintiff for the period from 1 January 2006 to 25 November 2011. The plaintiff indicated, in evidence, that he identified the medications which was relevant to treatment both for the left ankle and the left knee.

153. [153]
     Despite the criticism from the defendants in their written submissions, particularly their assertion that Sustanon and Reandron are testosterone based medication and have nothing to do with any ankle or knee injury, there has been no medical evidence which gainsays the plaintiff’s identification of those medications. More concerning are those submissions from the defendants which rely upon the plaintiff having been prescribed many of the medications prior to late May 2005, with examples appearing in Exhibit 10, pages 16 and 47. The earlier page refers to medications prescribed for the plaintiff as at 15 December 2004. The second, taken from notes referable to an appointment with Dr Byrne on 4 May 2005, is potentially highly relevant, particularly as there was a “new” prescription for Panafcort. It is also significant that Dr Parker reported in mid 2008 that the plaintiff’s treatment for his ankle complaint was “occasional” Panadine Forte.

154. [154]
     The plaintiff has asserted that every prescription of each of the particular medications is relevant to his accident-related injuries only. But, given the specific matters raised by the defendants, some scepticism must attend a wholesale acceptance of Exhibit 11.

155. [155]
     Even so, some significant sum should be allowed, particularly given the unshaken evidence given by Dr Byrne. The best that can be done in the circumstances is to reduce the costs identified in Exhibit 11 by some 25 per cent to account for the “other” conditions that needed such medication. That would allow a sum in the order of $450.00.

156. [156]
     Up until 1 January 2006, allowance must be made for both Panadeine Forte and Panafcort. Again, noting the other conditions suffered, some discount must be allowed for, although it should not be as high as for Exhibit 11, considering that some significant medication would have been required for the pain to the left ankle during this time. I allow the sum of $300.00.

157. [157]
     There is no evidence of the cost of a visit to Dr Lane being $130.00, at least in the submissions made to me on behalf of the plaintiff. But the visits have led to recommendations about appropriate strapping to the left ankle and recommendations for further treatment from Dr Parker. Accordingly, given the general costs of medical consultations, it would not be inappropriate to allow the sum of $390.00.

158. [158]
     As for the other matters which are encompassed by miscellaneous expenses, paid assistance and travelling expenses set out in the relevant schedule, given the medical history that has been canvassed extensively in these Reasons, a substantial discount should be made from the amounts claimed for lawn maintenance, garden maintenance and lawn weed spraying. Therefore, based on the same approach as that adopted for economic loss, an amount is allowed in the sum of $500.00. I allow in total the amount sought for the ankle braces, Tiger Balm and moonboots, which totals $890.00. Finally, as for travelling expenses, there is nothing which undermines the claim of $400.00.

159. [159]
     All up, the out-of-pocket expenses are $2,430.00.     

Future out-of-pocket expenses

160. [160]
     The same approach to the amounts claimed in the relevant schedule for these expenses applies as for the past expenses of this kind. For future lawn maintenance, because I have significant doubts about how far that would have been causally related in the future to the lower left leg only in any event (given that his remaining general medical condition would necessitate such help anyway), no sum is allowed with respect to such ongoing services. I am significantly sceptical about the need for 4 moonboots per year, particularly when I have concluded that it is likely that the plaintiff will undergo a left knee replacement. Because a successful outcome of that operation should lead to a significant decrease in pain in the left lower limb, doing the best I can from the limited information provided to me, I assess the weekly expenditure, for the life expectancy of 20 years, as $10.00. On a multiplier of 664.4 (applying the discount rate of 5 per cent) and applying a further discount appropriately contended for in the plaintiff’s written submissions of 15%, the calculation yields $5,664.40. 

Medicare refund

161. [161]
     There is nothing which undermines the validity of the statutory refund claimed to be payable to Medicare Australia in the sum of $2,542.25.  Consequently, that is allowed in full. 

Interest

162. [162]
     According to the written submissions of the plaintiff, half the 10 year Treasury Bond rate for the present quarter is 2%. Accepting that is so, I apply it, pursuant to s 60(2) of the CLA, to both the past economic loss and the out-of-pocket expenses, over 6.25 years.  The resulting figure is $3,428.75.

Damages summary

163. [163]
     Adding together the various amounts assessed, the total is $49,665.40.

164. [164]
     Nevertheless, because I have found against the plaintiff on liability, no amount will be awarded.

Costs

165. [165]
     Given the nature of these cases and given that the plaintiff’s written submissions indicated that the plaintiff would desire to be heard in respect of costs, I will make an order, when handing down the judgment in this proceeding, that each party be given 7 days to file submissions on costs.