Freudenstein v Marhop Pty Ltd & Ors

I should, at the outset, identify the issues on liability. At the time of the accident the hotel was undergoing renovations. It was operating out of a bar on the first floor. The plaintiff was a patron of the hotel. He lived nearby and had been to the hotel many times before. On the evening of the accident he consumed at least 13 or 14 schooners of full strength beer. Much of it had been purchased from the hotel. It was not unusual for him to consume that much beer. The hotel continued to serve him alcohol because it did not regard him as drunk (T 119-122).

There was controversy as to the circumstances in which the fall occurred. Mr Freudenstein was, according to the defendants, a very determined entrant, who ignored obvious risks. On the defendants’ case, the door from the hotel bar that led to the building work was closed, if not locked. There was a sign which, in substance, said: “No Entry – Construction Work”. The door opened onto a short corridor. A wall had been knocked out at the end of the corridor, in preparation for the installation of a fire door. According to the builder, the opening for the fire door was blocked by plywood. The plywood was secured by props, which had been fastened to the roof on the other side of the doorway. Hence, on the defendants’ case, Mr Freudenstein had forcefully removed the plywood, displacing the props. Further, to pass through the door, he had to step up 500 mm onto the roof. Beyond the door, there was, according to the defendants, a further barrier. A safety fence had been erected. It was set back a metre and a half from the edge of the roof. The fence was about a metre high. Underneath there was plastic mesh, which had been fastened to the wood of the fence. To get to the edge of the roof and fall, the plaintiff had either to climb over the fence or push the mesh to one side and then climb under it.

The plaintiff’s case was very different. There was no barrier between the interior of the hotel, where he was drinking with his friend, and the edge of the roof from which he fell. The door was not locked. Indeed, it was wedged open. There was no sign. There was no plywood covering the opening. He pushed nothing aside to pass from the corridor to the roof. Certainly he stepped up 500 mm or so. However, there was no barrier on the roof and no plastic mesh.

Further, the defendants argued that, even were these issues resolved against them, and a fortiori if they were not, there was no duty of care. Alternatively, the scope of any duty owed to the plaintiff, did not extend to liability for his fall. The defendants submitted that, in determining whether there was a duty and its scope, the plaintiff’s inebriation was not relevant. It was his own doing (DS [36]) Alternatively, were the Court to find a duty and breach, the plaintiff’s own lack of care was such that his contributory negligence should be assessed at 100% (DS [41]).

On the plaintiff’s case there was a duty. In determining the scope of that duty, it was relevant that the first defendant was a hotel and that patrons may be affected by liquor. There was, it was suggested, a clear breach of duty, both by the builder and the hotel. Any deduction for contributory negligence should be modest (10% - 15%) (Pl’s Subs [44])

Against that background, let me go to the evidence. The plaintiff’s account.

The renovations at the Mona Vale Hotel began in early 2000, that is about a year before the accident (Ex 5, para [11]). It was the plaintiff’s local hotel. Mr Brad Jenkins, the hotel manager and the second defendant, said this: (Ex 4 para [7]) “7 I know the plaintiff, who is known as ‘Fruity’ and who drank at the Hotel during the time I worked there. I know him as he was (is) a regular local customer and by this I mean that he came into the Hotel every day. He would come in and drink at least 10 schooners of full strength beer per day. On a weekend Fruity would drink more. It would not surprise me if Fruity drank between 14 and 17 schooners of full strength beer in a ‘session’. This was typically what Fruity and his friends would do in terms of alcohol consumption per day at the Hotel.”

Mr Jenkins joined the Mona Vale Hotel days before the accident. His comments were based upon observations after the accident. Nonetheless, although there was the suggestion that Mr Freudenstein’s drinking increased after the accident, it was common ground that he also drank heavily before (T 23). I will return to the issue of alcohol below. Mr Freudenstein, as a local, was aware of the building work which was being undertaken.

The building work was suspended on the Thursday before Easter. On Easter Saturday, 14 April 2001, Mr Freudenstein worked as a floor sander with his employer, John Cross, on another building site. His wife, Michelle, was away visiting friends in Wagga Wagga. Mr Freudenstein arranged to meet John Cross at the Mona Vale Hotel at about 5.00 pm. They remained at the hotel until about 7.00 pm, each drinking beer. Mr Freudenstein estimated that he drank about four schooners of beer in that time (Ex A, annex J(2)[14]). He and Mr Cross then took a taxi to the Pittwater RSL, where they met friends and had a meal. They left the RSL Club at about 11.00 pm. In a statement made by Mr Freudenstein six months after the accident (24.10.2001), he said this, providing an estimate which included the beer he had earlier drunk at the Mona Vale Hotel: (Ex A, annex J(2)[14]) “14 ... I estimate that I had consumed ten schooners of beer. I did not drink any other type of alcoholic beverage apart from beer at the Pittwater RSL Club. ...”

Mr Freudenstein and Mr Cross returned to the Mona Vale Hotel soon after 11.00 pm. There was a band playing (T 30). They resumed drinking. The incident occurred at about 1.30 am on the Sunday morning. Between 11.00 pm and 1.30 am Mr Freudenstein estimated that he consumed a further three or four schooners (Ex A, annex J(2)[16]). Mr Cross also continued drinking, although he switched to whisky (Ex A, annex J(3)[5]).

At about 1.30 am it was Mr Freudenstein’s shout. Adjacent to the bar there was a wall with a number of doors (Ex 5, annex I ). Two of the doors provided access to toilets. The door immediately opposite the bar was a fire exit that led to a stairwell (Ex 5, annex J). According to the plaintiff, the fire door was open. Indeed, he had noticed that it was open when he arrived at the bar (Ex A, annex J(2)[17]), presumably a reference to his return at about 11.00 pm. A small triangular wedge had been placed under the door as a chock to keep it open (T 31). There was an Exit sign above the door (T 31), but otherwise no sign (T 46). The door opened inwards onto a landing above the stairwell.

Why did Mr Freudenstein leave the bar and pass through the doorway? In his October 2001 statement, he said this: (Ex A, annex J(2)[17]) “17 ... I went to this door to have a look at the renovation work. I was curious as to the progress that was being made. ...”

The original Defence filed by the defendants on 12 July 2002 provided the following particular of contributory negligence: “(c) Failing to take due heed of his whereabouts, by reason of the fact that he was talking on a mobile phone at the time.”

The Amended Defence, filed on the third day of the trial (24.2.2009), amended that particular as follows: “(c) Failing to take due heed of his whereabouts, by reason of the fact that he was either talking on a mobile phone at the time or because he was curious about the construction work taking place at the hotel whilst grossly intoxicated.”

The issue was taken up with the plaintiff in his evidence in chief. He could offer little assistance. He said this: (T 32) “Q. ... firstly let me ask you this; why was it that you left the bar area and walked through the first door in the first place? A. I don’t know if I got a phone call, or just been inquisitive because the door was open. I can’t tell you.”

Why Mr Freudenstein left the bar is a puzzle. He was about to purchase, or had purchased, two further drinks. The bar was due to close in half an hour (2.00 am) (Ex 4[11]). Diverting through an open door to a nearby landing is rather more plausible in the context of a mobile phone call than curiosity about renovations. There was a band playing. The corridor would provide something of a shelter from that noise.

The evidence included medical reports tendered by the parties without objection. Most reports included a history which had been provided by the plaintiff. The material, when tendered, was not subject to a limitation under Evidence Act 1995 s 136. The report of Dr Alam, dated 20 March 2002, included the following history, which presumbly was the source of the particulars of contributory negligence: (Ex A, annex C, p 2) “He had been at his usual hotel between the time of 5pm and midnight when this accident occurred. Apparently he walked out the side to answer his mobile phone. He saw a large doorway cut into the wall and walked through this. It was dark outside and there was black plastic on the tin roof below and he fell approximately one storey. Fortunately he struck softish turned up ground.”

Returning to the plaintiff’s account, he asserted in his October 2001 statement, that opposite the fire door at the end of a three metre corridor there was a large hole (Ex A, annex J(2)[17]). There was no plywood boarding (Ex A, annex J(2)[22]). He recognised that it was an opening to the building site (T 62). It had rough edges in the shape of a door and had just been knocked through (T 62). To pass through the doorway, he had to step up 500 mm, which was at least twice an ordinary step (T 68) (cf Ex 5, annexs O and S). Mr Freudenstein described what happened in these words: (Ex A, annex J(2)[18]) “18 Once again I became curious regarding the renovation work and I walked through this hole in the wall. It was very dark outside but I could see black builders plastic covering the construction work. It was not raining but the plastic was wet and I remember thinking that this was probably from heavy dew. I walked out onto this plastic and my next recollection was that I was lying on the dirt having fallen from a height.”

When giving evidence, Mr Freudenstein elaborated. He said: (T 33) “Q. What did you do? Take us through your movements after going through the hole in the wall? A. Once I went through the hole in the wall, I could see the renovations they were doing in the new part of the hotel, because I saw the blackout on the windows. So the further I walked the more I could see what they were doing in the new hotel. Q. You say you walked. What happened next? A. I ended up in the car park. Q. Do you recall how you ended up in the car park? A. No, I just walked off a roof. Q. What was your next recollection after coming off the roof? A. Standing up, dusting myself off, and walking back around to the front of the hotel. Q. Are you able to say how you were when you stood up? A. No, I know I was drunk, but-- Q. Do you remember how long you were on the ground for? A. No idea.”

The plaintiff acknowledged that, when he went through the hole, he knew he was stepping onto a roof (T 62). On the roof there were no barriers, no orange mesh, there was nothing at all (T 66). The following was put: (T 68) “Q. You’d forgotten due to your level of intoxication and indeed what happened to you when you fell from the roof about these barriers that were in your way? A. There was no barriers. The bar maid -- ”

The cross examination continued: (T 68) “Q. You may have forgotten? A. I wouldn’t have forgotten.”

Counsel for the defendants also put the following: (T 65) “Q. Those same lights would have made clear to you that the roof had an edge. In other words there were a finish to the roof? A. I wasn't looking at that. I was looking inside the lit area.”

Counsel for the defendants then put the following: (T 65) “Q. As you walked out along the roof you were able to see more and more and would have undoubtedly shown you the edge of the roof? A. Well, I didn't notice the edge of the roof because it was dark. Q. It wasn't dark in the sense that you couldn't see details because there was light coming from the building site? A. Not a great deal. Q. Certainly enough for you to see into the building site as you approached the edge of roof? A. If I had seen the edge of the roof, I wouldn't walked off it.”

The plaintiff acknowledged that he had drunk a lot, but no more than he normally did (T 65).

Mr Freudenstein, in his October 2001 statement, described what then happened in these words: (Ex A, annex J(2)[19]-[21]) “19 I remember standing up and feeling no pain. I walked back around to the entrance to the bar from which I had been drinking with John Cross moments before this fall. I walked up the stairs and met a security person whom I know as ‘Chook’. 20 Chook said, ‘Who hit you?’. I said, ‘No one’. Chook said, ‘What happened?’. I said, ‘Nothing, don’t worry about it.’ Chook said, ‘You’ve got blood all over you, what happened?’ I said, ‘I fell off the roof.’ 21 I then went to the toilet and I washed off the blood. My front tooth had pierced my lip. I recall by this time that people were asking me whether I was all right. I then walked home. It was 2.00 am.”

There was no challenge to that aspect of his account. The evidence of John Cross.

Mr Cross made a statement on 9 November 2001, which was served by the plaintiff. He said this: (Ex A, annex J(3)[6]) “6 At about 1.30 am Doug said to me, ‘It’s my shout, mate. Do you want (a) drink?’ I said that I did and Doug went to the bar. I went to the toilet and when I sat down again Doug had not returned and I could not see him in the bar area.”

He then investigated. He said this: (Ex A, annex J(3)[7]) “7 I stood up and walked around the bar looking for him. I saw an open door just to right of the bar and I saw (a) hole in the wall opposite this door. I thought to myself, ‘Surely he wouldn’t have gone through there.’ I noticed that there was no sign to warn patrons about the hole in the wall and there were no barricades to prevent anyone walking through this hole in the wall.”

When giving evidence, Mr Cross said that there was a rubber doorstop wedging the door open (T 94). There was no sign other than the Exit sign (T 94/5). At the end of the short corridor, there was a “void out into darkness” (T 92). There was no physical barrier (T 95), no black mesh or orange mesh (T 95), there was absolutely nothing (T 95). There was simply black plastic (T 92).

When cross examined, Mr Cross described what he saw, as he peered out the door onto the roof, in these words: (T 99) “Q. How far into the landing did you go? A. To the doorway and looked outside on to the roof. Q. What could you see when you looked out? A. Absolutely nothing, pitch black. Q. Did you see anything on the ground outside the roof? A. No, because the roof goes for about - I am guessing but the roof extended in a U-shape if you like, and it was about eight metres, before there was the U-shape if you like.”

He knew he was looking onto a roof (T 99). Counsel for the defendants then put the following: (T 100) “Q. And you knew there was an edge out there somewhere, is that right? A. Well there would have to be, wouldn't there? Q. And you yourself couldn't see any barricade or anything that would have stopped people going off the roof? A. That's correct. Q. And I take it that is the reason why you said "surely he wouldn't have gone there"? A. Yeah. Q. Because it would be so silly for anybody to go out and on what was clearly a roof which had an unprotected edge, is that right? A. That's correct. Q. And because it was dark you might not know where the edge started in relation to where the hole was? A. It is alright in hindsight. Q. Sorry? A. That is okay in hindsight. Q. I understand that, part of your thinking was 'surely he wouldn't have gone out there' because it was so obviously dangerous? A. Doug wouldn't think the same as me, that was my opinion. Q. That is your opinion, it was obviously dangerous, wouldn't it, that's why you thought surely he wouldn't have gone there? A. Yes.”

Mr Cross said that one had to step down onto the roof (T 91). In cross examination, he said this: (T 101) “Q. I suggest you are incorrect about that. I am not being critical, it may be a failure of recollection; there was in fact a lip there that you had to step over to get onto the roof that was further down there? A. No, the door wasn't working. I used to hang fire doors so I notice these things. The door frame was there, the slab stopped. You had to step 600 down to get on to the roof.”

He acknowledged that there was a lip between the corridor and the base of the door frame, which one had to step over (T 100). But you then stepped down onto the roof (T 101).

According to Mr Cross, the plaintiff re-entered the upstairs bar 15 or 20 minutes later (T 91, 102). He had “blood all over him” (Ex A, annex J(3)[8]). Mr Cross said this: (T 91) “A. ... Fifteen to twenty minutes later Dougie come through the front door. He had a gash in his teeth - in his lower lip I should say where his teeth had gone through his skin on his chin. He was limping, he had abrasions to his head and things like that and I thought someone must have given it to him and like punched him. And I just said to Freudy, I said "mate who do we have to square up", you know, and he said "no no no, I fell off the roof". I laughed at him and I said "what are you doing on the roof", and anyway he was feeling sore and sorry and so we got a cab. I got him home and put him to bed and that. So that was it.”

There was controversy as to whether the plaintiff had lost consciousness. Originally the claim included an allegation of possible brain damage, which was ultimately not pressed. The plaintiff told a number of doctors that he had not lost consciousness. Mr Cross was therefore cross examined in these terms: (T 102) “Q. When you say 15 to 20 minutes, you had not said anything about that period of time in the statement? A. The question was not asked. Q. What you are doing now is you are guessing at the time? A. I am not guessing at the time, I was there. ... Q. I take it you did not look at your watch? A. I don't need to, I still had a drink. If takes 15 to 20 minutes to have a drink, I still had a drink. Q. How many drinks did you have in the period of time you were waiting for Mr Freudenstein? A. Just the one. Q. Had you finished it? A. Pardon? Q. Had you finished? A. Just about, I finished it to get a cab to take Dougie home.”

Elsewhere Mr Cross said that Mr Freudenstein could hardly walk (T 103).

I accept Mr Cross’ evidence as to the elapse of 15 to 20 minutes. It does suggest some loss of consciousness, though Mr Freudenstein may not have been aware. In the light of the claim ultimately pressed, that may not be a matter of great significance.

A week after the accident Mr Cross took a photograph of the roof from which Mr Freudenstein fell (Ex B, photo 5). The photograph showed a door frame, but no door, or at least no visible door. It also showed black plastic on the roof, as described by Mr Freudenstein. There was no barrier or mesh. The roof was four metres above the ground below. According to Mr Cross, the photograph depicted the roof as it was on the night of the accident (T 93). The evidence of the hotel manager.

The hotel manager, Mr Bradley Jenkins, began work on 11 April 2001, a matter of days before the accident. He was not working on the night of the accident. The duty manager was Mr David Dunkerley. The person behind the bar was Ms Joanne Hymas (Ex 4[2]). He was made aware of the incident by Mr Dunkerley a week later (T 112) as he acknowledged in his statement (Ex 4[16] and [20]). Oddly, Mr Jenkins included in the same statement the following, referring to the Statement of Claim issued on 19 April 2002: (Ex 4[23]-[24]) “23 I was not aware of the Hotel area being hazardous. I was not made aware of the alleged accident until after the Statement of Claim was issued and I received the court documents. 24 By this time the construction works had finished. I was therefore unable to inspect the site (at) the time of the alleged accident.”

These paragraphs overlook the earlier reporting to him by Mr Dunkerley.

Neither Mr Dunkerley nor Ms Hymas, nor indeed any staff member on duty that night, was called to give evidence. Mr Jenkins acknowledged that he passed their names to the solicitors for the defendants (T 118). No explanation for their absence was provided. The plaintiff seeks a Jones v Dunkel inference that their evidence would not have assisted the defendants. I will return to that issue below.

Mr Jenkins said that, after joining the hotel and before the incident, he was given a tour of the premises by the licensee, Mr Scott Lane. He said this: (Ex 4[17]) “17 ... I knew that everything was locked down and you could not get into the downstairs bar or other construction areas unless they let you in. ...”

He added: (Ex 4[18]) “18 ... During this tour with Scott Lane you could not access any area where construction work was being undertaken. If there was a closed door to any part of the construction area you would have to ask one of the construction workers to let you through that door. I knew every area of the Hotel from back to front.”

When giving evidence, Mr Jenkins elaborated: (T 124) “A. Everything was key locked on to a different key set by the builders and there was no key access for the management of the hotel, so anywhere where there was construction you could not actually get into that construction area and then they bought in the locksmiths at the end and changed them over.”

When cross examined about that issue, his only reservation concerned whether the door in the upstairs bar was a Fire Exit (T 125). He added: (T 125) “Q. Are you saying, though you don't know the position if it was a fire exit, then it may have been necessary to leave it unlocked; if it wasn't a fire exit then it should have been locked? A. It would have been locked, yeah.”

The main entry foyer operated as a Fire Exit and a further Exit had been created during construction in the south eastern corner (T 125), near the storeroom (T 141). Mr Jenkins later said this, referring to annotations on a plan annexed to his statement: (T 142) “Q. Do you know off the top of your head how many fire escapes the hotel would likely have had? A. I think as a general rule there is one metre for every 100 people. So as far as that area went, I don't think they ever had more than 100 people there, to be quite honest. I don't know what-- Q. So they have got the front steps, which are "F"? A. Yes. So that was a two metre area. Then they had one metre on this side as well (indicated). Q. And they have got this one on the southern side leading near the stage? A. Yes. Q. To the storeroom and down? A. Yes.”

Finally, on this issue, in answer to a question from me concerning the fire door through which Mr Freudenstein passed, Mr Jenkins said this: (T 132/3) “Q ... This area ultimately became an exit for a fire escape; is that right? A. Correct, yes. Q. Whether it was a fire escape on the night you don't know? A. I don't know, no. Q. If it was a fire escape, what you are saying is then you would assume, according to the regulations, that it had to be kept open - sorry-- A. No access, so you can't get through. Q. --unlocked. Not open, but capable of being open? A. Yes. Q. You would still expect it to be kept closed, I assume? A. Yes, it would have been. Q. But if it wasn't being used as a fire escape for the duration of the construction? A. Uh-huh. Q. Then you would expect the system, which you have described, that is locking it off? A. Yes, that would be-- Q. --it would have been in operation? A. Yes. And what I have observed from the builders, they do that, regularly lock down areas and unlock them or put them back to the other keying system.”

Mr Jenkins did not recall the opening in the wall beyond the fire door of the upstairs bar. The opening may not have been created until after his inspection. He therefore could not say whether there was protective boarding covering the hole (Ex 4[19] “C”) The evidence of the builder.

Mr John Duignan is a builder and has been since the age of 18 years, when he completed his apprenticeship. He is now 58 years old. For the last decade or so he has specialised in the construction and refurbishment of hotels (Ex 5[3]). One gathers that the Mona Vale Hotel was one of the earlier hotels that he renovated. He was appointed project manager. He resided in Victoria and, whilst the job was underway, occupied quarters within the hotel itself. In 2001 he typically remained in Sydney three days a week (Ex 5[15]). He worked closely with Mr Paul Mignon, the site supervisor, who likewise came from Victoria and had been provided with quarters at the hotel.

Mr Duignan provided a statement dated 15 December 2009, which was served (Ex 5). The statement was expressed in strong terms, often adopting the language of an advocate rather than a witness. He described, by reference to an annexed plan (Ex 5, annex A), the renovation of the hotel, including the installation of an external fire door, being the hole through which Mr Freudenstein walked. Jackhammers were used to create an opening. Chip board sheeting was placed on the awning roof to provide a platform whilst work was carried out. He said this: (Ex 5[22(a)]) “22(a) ... Essentially, we constructed the temporary platform consisting of the chip board sheeting and a wooden railing so that we could work off the wooden platform in making the door opening in the exterior Hebel wall in a safe and orderly manner.”

Mr Duignan returned to Melbourne on the Thursday before Easter (T 222). One infers that work continued in his absence until the end of the day. He could not say from his own knowledge whether the hole created for the fire door had then been boarded up (T 224). He plainly inferred that it had, based upon what he described as standard industry practice. He said this: (Ex 5[20]) “20 If there was a hole in the exterior Hebel wall it was never left open and it was boarded up with plywood at the end of every day. This is standard practice in the building industry for obvious safety and security reasons and I observed it being boarded up.” (emphasis in original)

Mr Duignan added that, not only was the hole covered with plywood, but it was the practice to secure the plywood by bracing positioned on the outside and attached to the roof (T 246). Props would be placed behind the plywood so that people could not readily get through (T 216). Mr Duignan said this: (T 246/7) “Q. So to get through it you would have to do what? A. You would have to force it to get through it. Q. Force it and push the bracing away. A. Yes.”

Beyond the door and on the awning, safe practice required a safety fence about a metre high with protective mesh, providing a more effective safety barrier. Mr Duignan’s statement included the following: (Ex 5[31(e)]) “31(e) ... I cannot recall whether this was in place at the Hotel but can say that it was always my standard practice to have such protective mesh in place and there would have been no exception made at the Hotel as it is standard industry procedure and protocol, without exception.”

Mr Duignan was then shown the photograph taken by Mr Cross one week after the accident (Ex B, photo 5). It showed black plastic on the awning roof. He acknowledged that it did not include a handrail or barricade (T 219). He provided an explanation. The barricade had been removed shortly before in order to permit the placement of the gantry catwalk, which would connect the fire door with another section of the hotel (T 219). However, there were a number of difficulties with that explanation. First, the photograph showed a door frame but no door. Mr Duignan said that the door frame and the door would have been installed on the same day, as part of the same process (T 221). That was an explanation given without reference to contemporaneous documents, almost nine years after the event. It does not explain why the door was open (and therefore not visible) at the time the photograph was taken. No work appeared to be in progress. On the other hand, the photograph depicting the door frame, with no visible door, was consistent with the description provided by Mr Cross. Secondly, the explanation presupposed that the catwalk had been installed the week following Easter. Again it was an explanation given from memory and without reference to site diaries or contemporaneous documents. The week following Easter was a short week. Monday was a holiday and Tuesday was a rostered day off for building workers (T 254). The language of Mr Duignan’s statement, on the other hand, suggested a rather more protracted process. For instance, he said this: (Ex 5[21]) “21 The area where the plaintiff entered the awning area of the Hotel and marked with the Roman numeral ‘IX’ was to eventually become an additional further fire escape at a later stage of construction. The proposed fire escape marked with the Roman numeral ‘IX’ was to lead to a ‘catwalk’ on the awning roofline ...” (emphasis added)

Later, Mr Duignan annexed a photograph of the catwalk (annex Q) that was described in these terms: (Ex 5[59]) “59 Annexed to this my statement and marked with the letter ‘Q’ is the ‘catwalk’ area that was finally constructed between the exit in the exterior wall (Roman numeral ‘IX’) ...” (emphasis added)

On the other hand, Mr Jenkins in his statement, said the builders were “in the last weeks of construction before all renovations of the hotel were complete” (Ex 4[17]), so perhaps one should not read too much into the choice of words in Mr Duignan’s statement.

Thirdly, one gathers that the gantry or catwalk, once put in place by the crane, then required the construction of a metal handrail, as depicted in the photographs (Ex 5, annexs ‘P’ and ‘Q’) (cf T 228). So there was still work to be done on the roof awning. In this context, Mr Duigan’s statement included the following paragraph: (Ex 5[25]) “25 Prior to excavating the exterior Hebel wall we measured and ordered the steel door frame and the fire door and then measured up the catwalk. Until the fire door is in place and the catwalk was measured up and constructed and installed, the wooden hand rails and protective boarding remained in place as a matter of safety for all workers and as a matter of accepted construction and building industry practice.”

Mr Duignan was taken to that paragraph in cross examination and the following question was put: (T 228) “Q. Your expectation was that that handrail, that safety handrail, was in place until the catwalk was in place? A. That's how that reads, but logically my expectations were until that door was in place and it was lockable and made safe we didn't remove handrails or temporary barriers.”

Finally, and perhaps most tellingly, the implication of Mr Duigan’s evidence concerning the practices which he assumed the company had followed, suggested that there should have been debris as a consequence of Mr Freudenstein’s penetration of the opening. The plywood and the props must have been displaced and presumably were left lying on the roof. The open hole must have been exposed. The wooden barrier and the plastic mesh had either to be broken or penetrated (either under or over). Yet nothing of the sort was drawn to Mr Duignan’s attention. Mr Duignan said this: (T 247) “Q. But did anyone draw to your attention that the plywood had been displaced and the struts supporting it? A. No. Had no knowledge that any incident occurred. No knowledge whatsoever.”

He added that, if someone were to crash through the guardrail or disturb the mesh, he would have expected to have been told (T 251). Nothing of the sort was drawn to his attention (T 251). He said this: (T 247) “Q. When did you find out for the first time that an incident had occurred? A. Again I'm calling on my memory but I believe it was about 18 months later. An insurer rang me and said, "What precautions did you take on that day?" And I was perplexed until I knew what was going on. I was never notified by anybody.” Was the fire door open?

Let me pass to another aspect of Mr Duignan’s evidence. Mr Duignan emphasised that the fire door and stairwell did not operate as a fire escape during construction. It gave access to the ground floor where building work was taking place. Instead, provision was made for an alternative fire escape from the upstairs function room (near the storeroom), which would supplement the capacious entrance as a means of escape from the upstairs bar (Ex 5[34], [36], [37], [44] to [47] and [51] to [55]). Hence, there was no reason for patrons of the upstairs bar to use the fire door. More than that, as asserted by Mr Jenkins in his evidence, he said the door was locked. Mr Duignan’s statement included these words: (Ex 5[36]) “36 It was our policy, and also the policy of the Hotel, to have this door closed at all times but it was specifically our policy to have it locked. This door was not to be used as a fire escape as during the construction process the Hotel utilised an alternative fire escape. This alternative fire escape is marked on the schematic plan by the Roman numeral ‘XII’. ...”

However, the assertion that the door was locked and could only be opened by the builder (as Mr Jenkins believed) was difficult to reconcile with the unchallenged fact that Mr Freudenstein somehow managed to get through the door and ultimately onto the roof. When Mr Duignan gave evidence in chief, he explained what he meant by “locked”: (T 216) “Q. Was it locked off? A. The door shut and being a fire exit and it was a fire exit before we started, when you exit a fire exit you can turn the handle of a door and exit without a key. Once the door shuts behind you, you can't come back in. That's the idea of a fire exit. It wasn't lockable as such. It was a separate system. Q. It wasn't locked during the course of your construction works? A. It wasn't locked, no.”

The door was incapable of being locked from both sides (T 242). It could be opened from the hotel side but, once closed, could not be opened from within the stairwell. So the locking mechanism had nothing to do with the safety of those within the bar. It did not prevent access to the construction zone, as Mr Duignan acknowledged (T 240). Nonetheless, as a matter of policy, Mr Duignan said that he would have expected the fire door to have remained closed (Ex 5[36]). More than that, he would have expected a sign on the door warning patrons. He said this: (Ex 5[33]) “33 ... It was known to all including staff of the Hotel and patrons of the Hotel, as it was a regular or ‘ locals’ pub, that beyond this point there was a construction zone with building works being undertaken beyond this point. To the best of my knowledge we had a sign attached to this existing but unused fire escape door that said either ‘ NO ACCESS’ or ‘ NO ACCESS – CONSTRUCTION ZONE’.” (emphasis in original)

Mr Duignan, of course, could not say whether there was a sign on the door on the night of Mr Freudenstein’s accident, since he was in Victoria (T 227). He also explained that he had no stationery. When he wanted a sign, he would ask the hotel staff to put a sheet of A4 paper in large bold letters on the door, to make it clear that it was a construction zone (T 238/9).

In cross examination, the following was put to Mr Duignan, describing the position as asserted by Messrs Freudenstein and Cross: (T 257) “Q. Well, would you agree if the assumption I put to you is correct, open door, no sign, void in wall, no safety barriers, no mesh, if that was what was happening in reality on the night, that was a woeful breakdown in the system of safety on that site? A. Correct. And if that door was ajar with a wedge I would be very disappointed that somebody had done that. It's not, it wasn't our intent to do something like that.”

Mr Duignan acknowledged that, in such circumstances, there would be a very real risk of injury. His evidence continued as follows: (T 258) “Q. And once through the first door, if the plywood wasn't in place there would have been vastly magnified the risk of injury by the absence of the plywood. Do you agree? A. Yes.”

Suggestions were put concerning alternative systems that might have been employed to prevent entry by patrons through the fire door, or make the position clearer than an A4 sign. The suggestions included a wooden bar suspended between two stands, or a tape. Mr Duignan said this: (T 257) “Q. Numerous other things you could have done to make it abundantly clear to anyone minded to walk through that door that it was a strictly no go zone? A. Your Honour, it's all up to interpretation. He is right. How you want to interpret the security of that area is there are many ways that it could be done. We chose to post a sign on the door expecting people to read it and understand what it said. Maybe we did the wrong thing, I don't know, you know, whatever we did may have been the wrong thing. In some circumstances we have to do the best we can to make sure we secure the site and make it safe.” Evaluation.

Counsel for the plaintiff, in written submissions, drew attention to the failure of the defendants to call anyone from the hotel present on the night of the accident, and someone from the building company familiar with the state of the premises when construction work ceased on the Thursday before Easter. The witnesses included: (PS [18]) The hotel duty manager on Saturday 14 and Sunday 15 April 2001, Mr David Dunkerley. The person serving behind the bar, Ms Hymas. The site supervisor of building works, Mr Paul Mignon.

Counsel asserted that the absence of such witnesses had not been properly explained, or indeed explained at all. A Jones v Dunkel inference should therefore be drawn. The following was said: (PS [20] and [21]) “20 The Defendants were made aware of the Plaintiff’s fall about a week after its occurrence (T110). Records of which hotel staff were working were available (T112). Mr Dunkerley informed the Second Defendant of the incident within a week of the incident (T112). 21. It was incumbent upon the Hotel to make a report of the incident (T113). The Second defendant, a then Manager, later Licensee would have expected an incident report. Rosters were kept (T114). It was available to the Defendants to ascertain which staff were working that evening (T115). Mr Dunkerley was still in the employ of the Hotel when the Statement of Claim was served (T116). The Defendants had the opportunity to make enquiries of staff in relation to the allegation of negligence -- The Second Defendant can’t recall if he made those enquiries (T117). The Second Defendant made available to the Defendants lawyers the names of the staff working on the night in question. He gave the lawyers the names of Mr Dunkerley and Ms (Hymas). He told the lawyers these people were available to make statements. The Second Defendant asked Mr Dunkerley for something in writing – that document was called for and not produced (T118). ‘Matt’ was working at the Hotel that night – his surname was ascertainable from payroll/roster records which were to hand (T119).”

Counsel for the defendants responded that this was not a case where the witnesses “were solely within the feasance province of the defendants” (DS [25]). It was open to the plaintiff to call these witnesses if he chose (DS[25]). However, the witnesses identified were, I believe, very much in the defendants’ camp and their whereabouts capable of being ascertained by the defendants. Mr Paul Mignon, for instance, who was site supervisor and worked closely with Mr Duignan, was clearly well known to Mr Duignan. Mr Duignan said this: (T 239) “Q. But you know where you can get hold of Mr Mignon? A. He's retired now but, yeah, I probably haven't spoken to him for 18 months - two years. Q. But had the solicitors acting for the defendant asked if you could have-- A. Well, I did give them his phone number. Q. So you did give it to the solicitors acting for the defendant? A. Yes.”

There being no explanation for their absence, I infer that the evidence of the witnesses I have identified (amongst a somewhat longer list provided by the plaintiff) would not have assisted the defendants.

I return to the broad issues which were identified at the beginning of this judgment, namely: First, was the fire door open or closed? Secondly, was there a sign on the door? Thirdly, was there plywood covering the hole created for the fire door held in place by props secured to the awning roof? Fourthly, was there a barrier fence, set back from the edge of the roof and plastic mesh fastened to that fence?

Dealing with the first of these issues, it was ultimately common ground that the door was not locked. But was it closed? The plaintiff and Mr Cross said that it was not. Indeed, it was held open by a chock. No-one from the hotel was called to suggest otherwise. Mr Jenkins believed, as it happens wrongly, that the door was closed because it was always locked by the builders and they had the only key. Mr Duignan could only say that it was the policy of the company and of the builders that the door be kept closed.

I accept the evidence of Mr Freudenstein and Mr Cross that the door was open and held open by a chock.

The second issue concerns whether there was a sign saying, in effect: “No Access – Construction Zone”. If the door was open, as I accept, the sign was to some extent irrelevant. An open door was capable of being viewed by patrons as an invitation to enter, or at least permission to enter. The sign, if there was one, was liable to be missed or ignored because, unlike a sign on a closed door, it was not immediately visible. It did not confront the entrant as he sought to pass through the door.

Mr Freudenstein said that there was no sign. Mr Cross said the same thing. No-one from the hotel said that there was a sign in place on that night. The system of posting signs on A4 paper, as described by Mr Duignan, seems to me very haphazard and makeshift. The builder was not the one who affixed the sign. Instructions were given to hotel staff and it was left to them. Somehow, having printed a sign on A4 paper, it was to be affixed to the door. Such a sign, one would imagine, would be liable to fall off. In my view, it was no substitute for a professional sign made from rather more robust material, such as one sees on construction zones and building sites throughout the city.

The third issue concerns whether there was plywood covering the fire door opening, secured by props fastened to the roof. Mr Freudenstein said that there was no such barrier. He simply passed through the door by stepping up. Mr Cross later went looking for him. He saw no barrier, simply a void. However, if one assumes there was a barrier and Mr Freudenstein had pushed it down, then there would have been a void, although there would also have been debris. Mr Cross’ evidence does not therefore take the matter much further.

Mr Jenkins said that he did not know of the opening or of the plywood. Mr Duignan gave evidence concerning the appropriate practice, which required plywood secured by props. One infers that he expected that practice to have been followed. But was it followed? Mr Mignon was not called, nor anyone to say that it was followed. It was Easter and the workers were about to take a five day break. If, upon their return, the building site had been significantly disturbed by forcefully displacing a large sheet of plywood, which had been secured by props, one would have expected that to have been noticed and drawn to the attention of management. The absence of any evidence suggesting that there was such an intrusion, is consistent with the plaintiff’s account that there was no such barrier.

But leaving that aside, the account given by Mr Freudenstein seems to me much more plausible than the alternative. All possibilities must, of course, be viewed in the context of Mr Freudenstein’s considerable intake of alcohol. He said that his curiosity was aroused as to what was happening in respect of the renovations. If you assume that he was standing in the bar, about to order a drink for himself and Mr Cross, and that he looked through the open fire door, it is instructive to ask what he might have seen. If there was a barrier, all he would have seen would be a corridor and an opening covered by a plywood barrier. It is hard to imagine anyone’s curiosity being aroused by that. On the other hand, if he went from the bar through the fire door onto the landing, perhaps to take a mobile phone call, and had there been a barrier, he would still have seen an opening covered by plywood. Again, it would be odd to be so curious about the renovations as to be moved to physically displace the barrier. No doubt displacing the barrier would have been difficult and would have caused significant noise, which would make such behaviour even more odd. On the other hand, if you assume that the plaintiff went from the bar onto the landing to take a mobile phone call and you further assume an opening in the opposite wall, but no barrier, then it is less difficult to understand that someone’s curiosity may have been sufficiently aroused to peer out and even step up in order to have a better look.

Any analysis is to some degree speculative. Nonetheless, Mr Freudenstein struck me as an honest witness. I think it likely that he went onto the landing to take a mobile phone call and found that there was a hole and no barrier. That appears to me far more plausible than the alternative suggestion, made by the defendants, that he removed the barrier.

The final issue concerns the additional barrier fence erected on the roof itself to prevent workmen accidentally falling from the roof. Again, Mr Freudenstein said that there were no such barriers. He had a reasonable recollection of his actions before the fall. Again, it is far more plausible that he accidentally fell off the roof, not appreciating precisely where the edge was, rather than deliberately climbing over or under a barrier which had been placed upon the roof. Certainly he was affected by alcohol, but he knew he was on a roof.

Mr Cross said that there were no barriers. However, he also said that it was very dark. Indeed, he used the expression “pitch black” (T 99). His observations of the roof in these circumstances are of limited assistance. The photograph taken a week later was consistent with there being no barrier, although the possibility that there had been a barrier and that it had been removed to allow the positioning of the gantry must be acknowledged.

On balance, I think it likely that there was no barrier fence (and no plastic mesh) on the roof at the time the plaintiff fell.

So I accept the plaintiff’s account of the way in which the accident occurred. The fire door leading to the corridor and stairwell was wedged open. There was no sign. There was no plywood covering the hole in the exterior wall and no props securing that plywood. There was no barrier on the roof and no plastic mesh.

Against that background, let me turn to the legal issues concerning duty, breach of duty and contributory negligence. The Civil Liability Act 2002.

The Statement of Claim was issued on 19 April 2002. The Civil Liability Act 2002 was passed shortly after, receiving assent on 18 June 2002. Part 2 of the Act (Personal Injury Damages) was expressed to be retrospective in respect of actions commenced after 20 March 2002. It therefore applies to this action.

On 28 November 2002, assent was given to an amending Act, the Civil Liability Amendment (Personal Responsibility) Act 2002, which included, relevantly, Part 1A (Negligence) and Part 6 (Intoxication). The amending Act commenced operation on 6 December 2002, but did not apply to actions which had been commenced before that date. Its provisions therefore do not apply to this action. Instead, one must look to the common law. Was there a duty?

In Australian Safeway Stores Pty Limited v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, the High Court, by majority, abandoned the fine distinctions of occupier’s liability in favour of a general duty, as expressed by Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614. Deane J, in that case, said this: (at 662/3) “... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”

Nonetheless, the relationship between the occupier and the entrant, and the circumstances surrounding his entry, remain important. In Phillis v Daly (1988) 15 NSWLR 65, Samuels JA, having referred to Australian Safeway Stores (supra), said this: (at 67/8) “ ... That means, I take it, that the classical categories of entrant may still be accorded some potency. It is perfectly rational to assume that the degree of care which is appropriate to a trespasser, whose entry may fall at any point in a long continuum of knowledge, perception and expectation on the occupier’s part, may be much less than that which can reasonably (be) demanded by the business visitor, whose appearance is anticipated and welcomed, and less than that owed to someone whose entry is anticipated but merely tolerated. Equally, the nature of the danger will be a necessary constituent in working out whether any breach has occurred since it will be material to the foreseeability and magnitude of the risk, and the requirements of the defendant’s response.”

More recently, in Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330, Gummow J said that duties of care are not owed in the abstract, but are “obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question” (p 345 [43]). His Honour added: ([44]) “ ... a duty of care involves a particular and defined legal obligation arising out of a relationship between an ascertained defendant (or class of defendants) and an ascertained plaintiff (or class of plaintiffs). Sometimes, the determination of that legal obligation is more complicated than it was at the time Lord Atkin announced his ‘neighbour’ principle in 1932. The law now recognises types of loss and kinds of relationships which are different from those of earlier days.”

Here Mr Freudenstein was a lawful entrant. The hotel owed him a general duty to take reasonable care to avoid the foreseeable risk of injury ( South Tweed Heads Rugby League Football Club Ltd v Cole [2002] NSWCA 205; (2002) 55 NSWLR 113, per Ipp AJA at 137 [151]). In the context of an action against an hotel, the High Court in CAL No. 14 Pty Ltd v Motor Accidents Insurance Board [2009] HCA 47; (2009) 239 CLR 390, recently expressed the duty in these terms: “[31] There is no doubt that the Proprietor and the Licensee owed Mr Scott various duties to take reasonable care – for example, a duty to take reasonable care to ensure that the premises were physically safe, and a duty to take reasonable care to ensure that the equipment in operation, like gambling machines and kegs, did not injure him.”

The duty, however, was not limited to the static nature of the premises. An important circumstance, relevant to the scope of the duty, was the activity within the premises, which involved the sale of alcohol. In South Tweed Heads Rugby League Football Club (supra), Ipp AJA said this: (at 137) “[152] This duty ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.”

In the context of a licensed restaurant, the High Court in Adeels Palace Pty Limited v Moubarak [2009] HCA 48; (2009)239 CLR 420, identified a number of matters which pointed to a restaurant owing patrons a duty of care. The circumstances included: (at 436) “[25] ... Secondly the premises concerned were licensed premises where liquor was sold. They were, therefore, premises where it is and was well recognised that care must be taken lest, through misuse and abuse of liquor, ‘harm [arise] from violence and other antisocial behaviour’.” (references omitted)

Of course, the circumstances giving rise to Mr Freudenstein’s injury do not involve violence or aggression. However, another consequence of the sale of alcohol is that, notoriously, it may impair the judgment of those who consume it. In CAL No. 14 Pty Limited (supra), Gummow, Hayden and Crennan JJ said this: (at 414) “[54] ... Virtually all adults know that progressive drinking increasingly impairs one’s judgment and capacity to care for oneself. Assessment of impairment is much easier for the drinker than it is for the outsider.” (references omitted)

That is not to say that the hotel owed Mr Freudenstein (unless his circumstances were exceptional) a duty to monitor and minimise the service of alcohol to him as a customer in order to protect him from the consequences of the alcohol he chose to consume ( CAL No. 14 Pty Limited, supra at [52]). Nonetheless, a relevant circumstance in determining the scope of the duty was the knowledge of the occupier of the characteristics of entrants. Although dissenting as to the outcome, McHugh JA expressed the principle in these words in Romeo v Conservation Commission of the Northern Territory [1998] HCA 5; (1998) 192 CLR 431: (at 460/1) “[76] The duty of care is owed to each entrant personally. It is not owed to entrants as a class. If, for example, the Commission knew that a blind person was about to enter the Reserve, the Commission’s duty would be measured by reference to the particular circumstances of that person’s disability. The commission was not aware that the plaintiff was adversely affected by alcohol. But it was reasonably foreseeable that a person such as the plaintiff, affected by alcohol, might come to the Reserve and go beyond the limit of the car parking area – a limit that was marked by the low posts and logs. That being so, the Commission was under a duty to exercise such care as would reasonably protect a person such as the plaintiff from the reasonably foreseeable consequences of her condition, including the possibility that she might by inadvertence or inattention expose herself to the risk of injury.” (references omitted)

An illustration of the concept is provided by an unreported Full Court decision in Queensland ( Hogan v Rusty Rees Pty Ltd (Supreme Court of Queensland, Connelly, Ryan and Cooper JJ, 8.6.89, unreported). The action concerned an accident on an internal staircase within the hotel involving a person staying at the hotel. Connolly J (Ryan and Cooper JJ agreeing) said this: “The learned trial Judge concluded that the duty of care owed by a proprietor of licensed premises such as these is not limited to a duty owed to the ordinary reasonable person but that he must have in mind inebriated customers or guests, particularly as the hotel provided no desk attendant or night watch system and was at no pains to explain to its customers or guests what the keys they are given are for. In all the circumstances his Honour considered that the steps should have been as effectively sealed off at the bottom as they were at the top. His Honour did not consider that the means taken to block the stairs off went far enough, bearing in mind that people who had been drinking might wish to get back into the hotel.”

In Lanahmede Pty Ltd v Koch [2004] SASC 204, although dealing with an action where alcohol had excited aggression, the South Australian Full Court (Perry, Bleby and Gray JJ) dismissed an appeal. Bleby J made the following comment: “[2] ... There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from time to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others.”

Gray J added the following: “[35] In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons’ attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers.”

Here, the hotel manager, Mr Jenkins, and the builder, Mr Duignan, each foresaw the risk of injury to hotel patrons unless precautions were taken in respect of the renovations then underway at the hotel. It is clear that the defendants were under a duty to take reasonable care for the safety of the plaintiff. Was there a breach of duty?

The classic formulation of breach was provided by Mason CJ in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, where he said: (at 47/8) “In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”

That formulation, with refinement and elaboration, has been adopted in the Civil Liability Act 2002, ss 5B and 5C. Here, a reasonable person in the position of the defendants would have foreseen that the continued operation of the hotel, whilst building work was taking place, involved a risk of injury to patrons using the hotel. The risk was not only foreseeable, but plainly foreseen by the hotel and the builder.

Further, the risk of injury was not insignificant. The hotel was operating at night from a bar on the first floor of the premises, which was roughly four metres above ground level. The renovations were not being undertaken around the clock. The area being renovated was in darkness or semi darkness. Mr Jenkins said there had been no previous incidents during construction (Ex 4 [25]). However, one does not know whether the hotel usually operated from the upstairs bar with the fire door open. Even if it did, the issue is whether a reasonable person would have taken precautions to prevent danger to patrons arising from access to the building work, and whether it was unreasonable to ignore that danger ( Francis & Ors v Lewis [2003] NSWCA 152, per Mason P (Hodgson and Tobias JJA agreeing) at [57]. Here, Mr Jenkins and Mr Duignan each accepted the need for precautions preventing access by patrons to the building work.

However, foreseeability of injury does not determine breach. The Court is obliged to balance the reasonableness of the defendants’ conduct in response to the foreseeable risk. The question is, what would a reasonable person have done in the light of the matters identified by Mason CJ, namely: the magnitude of the risk the probability of its occurrence the expense, difficulty and inconvenience of taking alleviating action. any other conflicting responsibilities which the defendant may have?

Here, unless steps were taken to prevent access to the building work, there was the grave risk of serious injury, including death. As to the probability of its occurrence, it was perhaps moderate. There was I believe, a real risk of injury if a patron from the hotel, and especially one affected by alcohol, entered the building site. The defendants need not foresee precisely how an accident may happen. The risk of injury could not be considered negligible or remote such that a reasonable person would reject it as unworthy of consideration (cf McHugh J in Romeo v Conservation Commission of the Northern Territory (supra) p 461 [78]). Indeed, the hotel and the builder believed that the risk had been addressed by measures which, in fact, had not been taken.

The precautions identified by the plaintiff, which ought to have been taken, included those steps which the defendants asserted (mistakenly, according to my findings) were taken, namely: ensuring that the fire door in the upstairs bar remained closed; providing a sign on the door stating: “ No Access: Construction Zone” ; providing a plywood barrier (secured by props) covering the hole in the external wall; providing a handrail forming a barrier and mesh.

Dealing with each of these measures, there would obviously be no difficulty or expense in closing the door. However, closing the fire door would not prevent access, unless the door were locked. It appears that the door was incapable of being locked because it was a fire door, even though not used as part of a fire escape during construction work. The plaintiff, in these circumstances, suggested the alternative of a tape secured on one side of the door and passing across the door frame to the other side, to make it clear to patrons that entry was forbidden. That message should have been reinforced, according to the plaintiff, by a sign on the door itself. Alternatively, a barrier in the form of a wooden pole slung between two supports, such as one sees at a cinema whilst they are being cleaned, would have been a simple and obvious way of getting the message across. A professional sign stating: “No Access: Building Work” , such as one sees on city building sites, would presumably cost very little. Indeed, so common are they, one assumes such a sign would be available off the shelf from an appropriate store. But, even if that were wrong, I infer it would cost very little to manufacture and properly affix. A paper sign, fixed somehow or other, is plainly no substitute.

The third suggestion (plywood to cover the hole and props to hold it in place) are standard items on any building site.

The final precaution, the barriers and mesh on the roof itself, are rather different from the other precautions suggested. Such barriers were in place to safeguard workers when they were working on site (cf DS [28]). They were not a precaution contemplated in the context of patrons drinking in the bar. No doubt there is expense and inconvenience in erecting such barriers. It would hardly be reasonable, assuming other precautions, to insist upon such a measure in respect of patrons in the hotel.

Leaving the barrier and mesh to one side, it was not suggested by the defendants in respect of the other precautions, that there were competing responsibilities on the part of the hotel or the builder which conflicted with the implementation of such measures.

Balancing these matters with the foreseeable risk of injury, I believe the defendants were in breach of their duty. The primary responsibility for some aspects rested with the builder, especially in relation to blocking the hole in the external wall. One would infer that it was the hotel employees who opened the fire door. There was no issue of apportionment between defendants. It is enough, therefore, to say that the defendants were in breach. Causation.

In March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, Mason CJ said this, concerning the issue of causation: (at 515) “Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact – to be determined by the application of the ‘but for’ test – and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing. It is said that, in determining this second question, considerations of policy have a prominent part to play, as do accepted value judgments. However, this approach to the issue of causation (a) places rather too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact. As Dixon CJ, Fullagar and Kitto JJ remarked in Fitzgerald v Penn : ‘it is all ultimately a matter of common sense’ and ‘[i]n truth the conception in question [i.e, causation] is not susceptible of reduction to a satisfactory formula.” (references omitted)

Here, part of the plaintiff’s complaint concerns the absence of a sign and therefore a failure to warn. In the context of a failure to warn, McHugh J, in Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232, summarised the principles relating to causation, where there is a failure to warn, in a series of propositions which included the following: (237 at [34]) “(1) a causal connection will exist between the failure and the injury if it is probable that the plaintiff would have acted on the warning and desisted from pursuing the type of activity or course of conduct involved; (2) no causal connection will exist if the plaintiff would have persisted with the same course of action in comparable circumstances even if a warning had been given;”

But for the defendants’ breaches, the accident would almost certainly not have occurred. Had the fire door in the upstairs bar been closed with a barrier or tape in front of it, and had there also been a sign on the door, the plaintiff, I believe, would not have gone through the door. Indeed, I think it very likely that, if the fire door had simply been closed with an appropriate sign, it would not have occurred to the plaintiff to go through the door.

Further, even if the fire door had been open with no sign, had there been a plywood barrier covering the hole in the external wall, again I believe it implausible to suggest that the plaintiff would have violated such a barrier to satisfy his curiosity about the renovations.

It was the open fire door leading from the bar which allowed the plaintiff to enter the corridor, and then the absence of a cover over the hole which allowed him to see out onto the building site, thereby arousing his curiosity. As I will shortly describe, in the context of contributory negligence, his actions in seeking a better look were no doubt the product, at least in part, of an impaired judgment, the consequence of alcohol. The issue of policy and scope must be addressed in the context of a hotel serving liquor until late into the night. In that context, a failure to take reasonable care, exposing patrons who may be affected to the risk of serious injury, makes it appropriate, to my mind, that the scope of the defendants’ liability extend to the harm so caused. In other words, approaching the issue in a common sense way, one would identify two causes: the failure of the hotel and builder effectively to insulate the building site from the operating hotel, and the failure of the plaintiff to take reasonable care for his own safety. The defendants’ breach of duty was a substantial and effective cause of the accident and the plaintiff’s conduct contributory negligence, rather than an intervening cause.

The plaintiff has established factual causation and that the scope of the defendants’ liability should extend to the harm so caused. I now turn to the issue of contributory negligence. Contributory negligence.

Contributory negligence at common law is the failure of the plaintiff, in the circumstances, to take reasonable care for his own safety ( Caterson v Commissioner for Railways NSW [1973] HCA 12; (1973) 128 CLR 99). The onus of proving contributory negligence is upon the defendant. Where the damage suffered by the plaintiff is the result, partly of his own failure to take reasonable care (contributory negligence) and partly of the wrong of another person, the damages recoverable are reduced to the extent the Court thinks it just and equitable, having regard to the plaintiff’s share in the responsibility for that damage (s 9(1) Law Reform (Miscellaneous Provisions) Act 1965).

In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25, in the context of the reduction of damages arising under the Law Reform Act , Hayne J adopted the approach described in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529. In that case, the following was said: (at 532) “The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”

Here the plaintiff had consumed a significant amount of alcohol. According to Professor Starmer he would, as an habitual drinker, have developed significant tolerance. Nonetheless, he would still have been “grossly intoxicated” (Ex 1, report 18.10.09, p 4), although that opinion was expressed on an assumption as to Mr Freudenstein’s weight (87 kg), which was less than his actual weight (100 kg). Professor Starmer added that his state of intoxication may explain why Mr Freudenstein chose to inspect renovations in the dark at about 1.30 am (Ex 1, report 18.10.09, p 4).

However, Mr Freudenstein’s impaired judgment and reduced appreciation of danger as a consequence of alcohol, are not matters which ameliorate his culpability when assessing contributory negligence. The test is objective ( Joslyn v Berryman & Anor [2003] HCA 34; (2003) 214 CLR 552).

In forming a view as to what is “just and equitable”, It is instructive to look at Joslyn v Berryman and the determination ultimately made. A passenger in a car (Berryman) sued the driver (Joslyn) as a result of a motor vehicle accident. The passenger, who was severely intoxicated, had originally been driving the car. However, he exchanged places with the driver, who was also intoxicated. He allowed her to drive and soon after the car overturned. He was severely injured.

The trial Judge found the passenger guilty of contributory negligence and reduced the damages by 25%. The Court of Appeal determined that the perception of the passenger, at the time of the changeover, was so impaired that he would not have known the level of impairment of the driver. The Court therefore overturned the finding of contributory negligence.

The High Court allowed an appeal, and remitted the matter back to the Court of Appeal for reassessment on the issue of contributory negligence. McHugh J identified the test in assessing contributory negligence in these words: (at 564) “[32] The test of contributory negligence is an objective one. Contributory negligence, like negligence, ‘eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question’.”

The rule has one exception. In respect of children the standard varies depending upon the age of the child. There were cases which supported a similar concession in the context of old age. An elderly pedestrian, for instance, may not be capable of moving as fast as someone who is younger. However, the rule makes no concessions for other idiosyncrasies, even though they may be material to the accident, such as impaired hearing or sight (at 565). The test to be applied, in determining whether there was contributory negligence in circumstances of intoxication, was formulated by McHugh J in these words: (at 566/7) “[38] Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.”

His Honour then identified the matters in that case which would cause an ordinary reasonable person to infer a lack of care on the part of the passenger, Mr Berryman. The facts were as follows: (at 567) “[40] ... First Ms Joslyn had lost her driver’s licence and probably had not driven for some time. Secondly, she was insisting on driving a vehicle whose speedometer did not work and which had a tendency to roll over and she had had no experience of driving the vehicle. Thirdly, Ms Joslyn had been drinking for about the same length of time as Mr Berryman who was unfit to drive. Fourthly, the amount of alcohol consumed by Ms Joslyn, the time that had elapsed since she stopped drinking and her lack of sleep confirmed that she also was probably unfit to drive. Mr Berryman’s inability to keep awake and his agreement to stop driving increased the probability that her drinking and lack of sleep made her unfit to drive.”

Other members of the Court, with some variations, took a similar view. When the matter was remitted to the Court of Appeal ( Berryman v Joslyn [2004] NSWCA 121), the Court (Mason P, Beazley and Tobias JJA) adopted the matters suggesting culpability on the part of the passenger as set out in McHugh J’s judgment. They assessed the plaintiff’s culpability at 60%. The verdict was reduced accordingly.

Joslyn v Berryman has since been applied a number of times ( The Nominal Defendant v Lane [2004] NSWCA 405 ; Mackenzie v The Nominal Defendant [2005] NSWCA 180; Dos Santos v C Morris Painting & Decorating & Anor [2006] NSWCA 54). One small inroad into the objective test was made by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 402, where the plaintiff had a mild intellectual disability. Her Honour determined that the standard to be applied was objective. However, it was the standard expected of a reasonable adult with a mild degree of intellectual handicap.

I should therefore apply an objective standard, viewing Mr Freudenstein’s actions from the viewpoint of a reasonable (and sober) person. That approach, incidentally, is now reflected in the Civil Liability Act 2002 , and is consistent with the philosophy of personal responsibility stated by Ipp AJA in South Tweed Heads Rugby League Football Club Ltd v Cole (supra) in these words: (at 144) “[182] The recognition that, generally speaking, adult persons must assume responsibility for their own actions while intoxicated (provided that they are sufficiently in control of themselves to be able to exercise their will and to know what they are doing) underlies the treatment of such actions by the law and principles of equity relating to contract and the criminal law. There is no reason why the law relating to negligence should not adopt a similar approach.”

Nonetheless, there is perhaps some tension between such an approach and the duty of the hotel, which is informed by the nature of the entrants of which it has knowledge. Here, the hotel was aware that those who may be exposed to danger may be affected by alcohol. Yet a more exacting standard, that of a sober person, is expected of the persons put at risk.

The parties made short submissions on the question of contributory negligence, which it is convenient reproduce. The plaintiff said this: (PS p 5) “[41] The Defendants allege and particularise contributory negligence in their Amended Defence. [42] The Plaintiff asserted ‘ There was nothing stopping me from walking out there so I walked out there to have a look ’. The obvious inference from this is that had there been anything stopping him either by way of signage or barricade he would not have done so. It was not put to the Plaintiff that his senses were impaired, that he was disorientated, unbalanced, uncoordinated or that his cognition was impaired on the evening in question. The evidence is to the contrary both from the Plaintiff and Mr Cross. The Second Defendant’s evidence, as discussed above, is corroborative. [43] The fact is that although it was the Defendants’ view that the ‘fire door’ was prohibited this fact was not brought to the Plaintiff’s attention. It was never put to him that he knew he was entering a ‘prohibited’ door or that indeed he was travelling in a ‘prohibited area’. If the door was not a proper, accepted or allowed means of egress from the bar then he should not have been allowed to exit from it at all. There was no evidence, nor was it ever put that the Plaintiff had the ‘full and proper knowledge’ and or the cognizance alleged. [44] It is submitted, in all the circumstances, that it would not be appropriate to assess contributory negligence in this case beyond the range of 10-15%.”

The defendants made the following submissions: (p 14) “[41] It follows from what is said above, that even if the plaintiff were to succeed, then contributory negligence must play a very significant part. The defendant submits that contributory negligence would be assessed at 100% or very close to it. In any event, the defendant submits that there should be a verdict for the defendant.”

There can be no question that, by an objective measure, the plaintiff failed to take reasonable care for his own safety. His actions involved: First, stepping up to the door frame, 500 mm. Secondly, stepping down onto what he knew was a roof. Thirdly, doing so in the dark, when it was very black, where he could see black plastic which appeared to be wet and therefore potentially slippery. Fourthly, in order to get a better view of the room downstairs, moving away from the wall across the roof to a point where he fell off the roof. What is “just and equitable”?

What, then, is just and equitable as between the parties, having regard to the “assessed culpability and causal potency” of each (per Giles JA in Mackenzie v The Nominal Defendant (supra) [127])? There were a number of discreet breaches by the defendants, where there ought to have been successive barriers, safeguarding the plaintiff from risk of injury arising from the building work: First, in circumstances where the fire door could not be locked, the failure to erect a simple barrier or tape outside the fire door in the upstairs bar. Secondly, the further failure to close the door and ensure that it remained closed. Thirdly, the failure to place a sign on the fire door saying: “No Access – Construction Zone”. Fourthly, the failure to cover the hole made in the external wall leading to the roof with a plywood barrier, properly secured by props attached to the roof.

The builder acknowledged that such circumstances would amount to “a woeful breakdown in the system of safety on the site” (supra [65]). It is material that the first defendant was operating a hotel, serving alcohol late at night. Such breaches put all patrons at risk, including some who (to the hotel’s knowledge) may be affected (to a greater or lesser degree) by alcohol and their judgment impaired.

Turning to the plaintiff, significant culpability must attach to his actions. Admittedly he did not put others at risk, but he did put himself at risk. I accept that his action in stepping out onto the roof was spontaneous, in circumstances where his curiosity had been aroused. I also accept that, but for the defendants’ negligence, which permitted access through the fire door to the corridor and then to the roof, the accident almost certainly would not have happened. The plaintiff’s actions, to this extent, were opportunistic and probably impulsive. Unlike the plaintiff in Joslyn v Berryman (supra [120]), the situation did not evolve over a number of hours, with many opportunities to think better of what he was doing. I accept that it probably happened fairly quickly.

Having said that, there was not simply one foolish action by the plaintiff, but a succession of such actions where he moved from the corridor, to the door frame, to the roof, and then beyond. He obviously did not know the precise dimensions of the roof. Based upon a vague appreciation of its size, he clearly misjudged. However, he knew he was on the roof. Adopting the objective measure, his actions were clearly dangerous because of the risk of falling.

In my view, it is just and equitable to share responsibility between the plaintiff and the defendants equally. Mr Freudenstein’s damages should be reduced by 50% for contributory negligence.

Let me then turn to the question of damages. 2. DAMAGES The issues.

The claim, as ultimately pressed, concerned three areas of alleged disability: a back injury. an injury to the left shoulder. psychological difficulties which were said to be the product of pain and incapacity, interfering with the plaintiff’s life and relationships (and especially his relationship with his wife).

Damages for non-economic loss (that is, general damages) must be determined in accordance with s 16 of the Civil Liability Act 2002. An assessment is required, in percentage terms, of the level of disability by reference to “a most extreme case”. Where the percentage determined is less than 33%, the amount awarded must be adjusted in accordance with the Table in s 16. Where the disability is assessed at 33% or beyond, no adjustment need be made. The plaintiff is then entitled to the percentage determined.

Here the defendants submitted that the plaintiff’s injuries do not exceed 20% of a most extreme case (DS [56]). On the Table, such an assessment would entitle the plaintiff to 3.5% of the statutory maximum ($473,500), that is $16,572.50. According to the plaintiff, the appropriate percentage was in the range 31% to 33%. A loss of 31% reduces to 26% of the statutory maximum ($123,000) in accordance with the Table. A loss of 33% would entitle the plaintiff to $156,255 in general damages.

The controversy in respect of damages was confined to three issues: First, the extent of the plaintiff’s disablement and his entitlement under s 16. Secondly, the extent to which that disablement has reduced his working capacity, or is likely to cut short his working life. No claim was made in the nature of a continuing wage loss. Thirdly, the level of past and future medical expenses.

Let me first describe the plaintiff’s work before the accident and contrast his work history after. The difference, I believe, provides insight into his disabilities and attitude. I will then deal with the medical evidence. The plaintiff’s background.

The plaintiff was born in May 1963. He was almost 38 years old at the time of the accident. His parents were aboriginal. He was adopted as a small child. He completed the School Certificate in 1978 and thereafter left school.

He has an impressive work history. He worked for a short time at the Mackellar County Council before beginning an apprenticeship as a motor mechanic. He qualified in 1984 (T 17). Soon after, he established a business, Narrabeen High Performance, in partnership with a friend. The business specialised in turbo charged cars. Approximately one and a half years later the partnership was dissolved and each partner went his own way.

In 1986 Mr Freudenstein began work with Narrabeen Tyres, a business owned by John Cross. As the name suggests, he was fitting tyres. Between 1987 and 1991 he worked for Abco Wrecking, using his skills as a motor mechanic in retrieving spare parts from wrecked cars. Between 1992 and 1996 he performed similar work for Holten Spares in Dee Why.

Mr Freudenstein described his work as a mechanic and tyre fitter. Much of it was heavy, involving bending and lifting. He was regularly required to work in confined and awkward spaces. It was common ground that he had performed that work without difficulty. Mr Cross, speaking of the time where Mr Freudenstein was employed by Narrabeen Tyres, said this: (T 89) “Q. And what was the nature of his duties in your employ in that period? A. Back in the day he was fitting tyres for me and doing a little bit of mechanical work as well. ... Q. So he was principally fitting tyres you say? A. Yeah, and a little bit of mechanical work. Q. Did that work involve him contorting his body underneath cars and bending -- A. Yes, bending, leaning over cars into engine bays, rolling under cars off the trolley boards and things like that, also standing upright and to fit tyres and that. Q. Did you notice anything from your observation of his physical doing of that work that suggested to your mind that he was in any way inhibited from doing that work? A. He was since 19, 20, he was in the peak of his life. He had no dramas whatsoever, one of the best workers I ever had.”

By 1997, Mr Cross had established another business installing and sanding wooden floors. Mr Freudenstein left the car wrecking business and again went to work for him. The work was very heavy. Mr Freudenstein operated the large sanding machine. Two people were required to carry it. Often access to building sites was difficult. Sometimes the machine had to be carried considerable distances over unmade ground on what were described as “goat tracks” (T 21). On occasions the floors to be sanded were upstairs and again the machine had to be carried. Once on site, the operation of the sanding machine required significant strength. Mr Freudenstein said this: (T 20) “A. Well, the sanding machine itself probably weighs 80 to 90 kilos. It takes two people to lift it. And when it is cutting the floorboards it is very hard to hold; you have got to have a lot of strength to hold it.”

Sanding a floor may typically take all day (T 20), or at least three or four hours (T 48). Mr Freudenstein said that he performed that work without either back pain or shoulder pain (T 21). After the accident.

It will be remembered that, after the fall, Mr Freudenstein returned to the upstairs bar, where he rejoined John Cross. Having washed the blood from his face, he said he then walked home. John Cross, however, said that together they went home by taxi. It was a detail, but one given some attention by the parties. I prefer the account of Mr Cross, who said that Mr Freudenstein could hardly walk (T 103). It is unsurprising that, following the fall (which probably involved a loss of consciousness (supra [37])), Mr Freudenstein should have an imperfect recollection of the way in which he got home.

However, the next day Mr Freudenstein said he was sore “all over” (T 46), and especially in his lower back, legs and mouth (T 47). He telephoned his wife in Wagga Wagga and told her what had happened. According to her statement, he said this: (Ex A, annex J4[9]) “... He told me that he was in severe pain and that he could not move. ...”

When giving evidence, Mrs Freudenstein added: (T 150) “Q. And did he say anything about how he was feeling? A. He couldn't get off the lounge, because he was supposed to come and meet me at the bus station at Central, but he couldn't because he couldn't move.”

Mrs Freudenstein came back from Wagga Wagga on Easter Sunday. She described her husband in these terms: (T 151) “Q. What did you observe about him on that Sunday night? A. Basically he was in extreme pain. As I said he couldn't move off the lounge and that's where he stayed. Q. Did he complain about any parts of his body to you? A. Yeah, his back. Q. Did you notice anything about his face? A. Yeah, he had a cut on it and some bruising.”

On 23 April 2001, Mr Freudenstein attended Dr Ward, a general practitioner. Dr Ward, in his report, said that Mr Freudenstein “could stand and walk, but was in some pain”, when first seen (Ex A, annex F, p 1). He arranged for xrays of his chest, left shoulder and lumbar sacral spine. The xrays were normal, except for minor degenerative changes in his lower back (Ex A, annex F). Dr Ward thought he had probably suffered soft tissue injuries and would be fit for work in two or three weeks.

Mr Freudenstein remained off work for three weeks. During that time, his wife described him in these terms: (Ex A, annex J4[10]) “10 Doug took three weeks off work and was basically housebound. He was in a great deal of pain and was unable to move around without causing himself pain. During this three week period he became very irritable. We started to argue about little things that we would never have argued about before this incident. Doug started to raise his voice at me and Kirsten, a thing foreign to us prior to the fall.” Resumption of work.

When Mr Freudenstein resumed work, in April 2001, he was still disabled. He said, and I accept, that he was suffering from back pain and restriction of movement in his left shoulder. When asked about his duties, he gave the following evidence: (T 48) “A. Very light duties, I was doing the very minimum.”

That was to improve. However, on Mr Freudenstein’s evidence, he remained disabled, taking pain killers to ease the pain (T 48). In his statement of 24 October 2001, that is six months after the accident, he described his disabilities in these terms: (Ex A, annex J2[26]-[27]) “26 Now I cannot raise my left arm above shoulder height. If I try to force my left arm above this height I suffer intense pain in my shoulder joint. I have difficulty at work using the edger when sanding the floors because I cannot bend for more than five minutes at a time due to the pain in my lower back. 27. I now suffer with a sleep disorder and find that the pain in my left shoulder and lower back disrupts my sleep. I sometimes become moody because of this pain.”

The statement of his employer, John Cross, made on 9 November 2001, provided the following comment: (Ex A, annex J3[9]) “... When he returned to work he could not work as quickly as (he) could before this fall. Many times I saw him wincing in pain. He told me that he had pain in his left shoulder and his lower back.”

His wife, Michelle, in her statement of November 2001, furnished the following description: (Ex A, annex J4[11]) “11. Since this incident Doug has not been able to help me around the house with the normal household tasks such as cleaning and especially carrying the shopping. He always helped me with the shopping before this incident. Moreover, he has become difficult to live with. In the mornings he is particularly unpleasant and he ‘bites my head off’ if I say the wrong thing.”

Mrs Freudenstein added that her husband was, since the accident, drinking more heavily (Ex A, annex J4[12]). She noticed a “big change” in him, adding these words: (Ex A, annex J4[13]) “13. ... Our relationship has suffered greatly and I (attribute) the deterioration of our relationship to the pain he continually endures in his left shoulder.” (parenthesis added)

The plaintiff was given work on what was described as the light truck. He was engaged in coating floors with polyurethane once they had been sanded. He did so using a 12 inch roller (T 48/9). He said he could do the work (T 49). The light truck also picked up rubbish, which was then taken to the tip (T 70). He said that he could not use the heavy sander. His evidence was as follows: (T 48) “Q. What was it about sanding floors that gives you to say you couldn't do it any more? A. The machine, once you engage the sand paper on the floors it pulls and you've got to be able to stop the machine, physically stop it. I couldn't and you can't - it's a four horse power motor with a great big sanding belt on it trying to get away from you and you've got to try and hold it, sand the floor, physically hold it. Q. And you found yourself unable to do that? A. I wouldn't have been able to do that. I know how much it is, strain on your back. I wouldn't even try to do it. Q. Now, what amount of time working as a floor sander did you spend using that big heavy machine? A. From the time I started with John. Q. In terms of the average working day? A. As I said, some jobs were bigger than others. It was the first machine you turned on when you got to the job and it was the last one off. So if we were there for four hours, it would be going for three and a half.”

Mr Freudenstein ceased work with John Cross in March 2005. According to his evidence, he remained on light duties until the end. He did not and could not use the heavy sander.

However, the manager of the Mona Vale Hotel, Mr Jenkins (the second defendant), gave the following statement, referring to Mr Freudenstein by his nickname: (Ex 4[26]) “26 The dance floor in the entertainment room of the Hotel was re-sanded, polished and sealed by John Cross Flooring and the work was done by Fruity, who was at that time employed by John Cross Flooring. This work was done in about October 2001 and Fruity was the one who was operating the belt sander and he even did the edges with the smaller sander, where he was down on all fours to do it. He seemed perfectly capable of performing this activity and exhibited no apparent disabilities or problems whatsoever. He certainly did not look any different whilst performing these duties in October 2001 than he did in April 2001. Fruity did not ever complain to me about any alleged injuries or disabilities.”

Mr Jenkins elaborated when giving evidence. He remembered being startled at seeing the plaintiff and John Cross. He thought it inappropriate to award them the job because “they were out of the local bar” (T 109). The plaintiff was operating the large sander as well as the smaller hand held sander used for edges (T 109). Indeed, he remembered that he was wearing thongs (T 140).

The matter was put to the plaintiff in cross examination. Having drawn his attention to his evidence in which he denied sanding floors, counsel for the defendants put the following: (T 80) “Q. But in fact you did do it at the Mona Vale hotel, didn't you? A. No. Q. In October 2001 you sanded the floor in that very area where you were the night your of your accident, there is a dance floor at the one end of it you may recall? A. I know the dance floor, yes. Q. And you sanded and polished that floor in about October 2001? A. I did the final coat on that floor, I didn't sand it. Q. Well I suggest sir your recollection is wrong, and that you did in fact sand it, not only with the big sander but getting down on your hands and knees and finishing with the smaller sander, the hand sander? A. I know the dance floor and there wouldn't have been no hand sander at all in sanding it.”

The issue was taken up with John Cross, Mr Freudenstein’s employer. Mr Cross said that, when the plaintiff resumed work, he was assigned light duties (T 103). He did not go back to sanding (T 97). The following was then put by counsel for the defendants: (T 104/5) “Q. And he even went and did floor sanding, didn't he? A. Pardon? Q. He went and did floor sanding? A. He may very well. I had a lot of blokes working for me. If someone had a sickie you have to get the job done. Q. And he in fact did a job that year at the Mona Vale hotel at the bar? A. That is quite possible, the downstairs bar. Q. Do you remember the dance floor? A. That is the downstairs bar. Q. That is in the downstairs bar? A. Yes. Q. Do you recall you and Mr Freudenstein did that floor, sanded it and polished it? A. Yeah. Q. And it required hand sanding around the edges and Mr Freudenstein did that on a smaller sander? A. That's the only way to do it. Q. Yes, I understand that, he did that, for example. So it is not fair to say that he didn't go back to floor sanding, he did, didn't he? A. He didn't use the big machinery ever again. Q. What is the smaller machine I am sorry, we haven't heard about this before-- A. There's two machines. One is a big upright machine, it does the main area of the room, and there is a small edging machine that you just run around the edges and spins about 3200 revs per minute. That's what cuts the floor. The machine is not as heavy as the big machine obviously. Q. Is that like a floor polish(er)? A. No, it is not a floor polish(er), it is a floor edger. Q. It is the same dimension? A. You could do. I could teach you to do it. Even if you have a back problem, not a problem, drop to one knee. It hurts like hell but you would get it done.” (emphasis added)

The plaintiff’s daughter, Ms Kirsten Brown, gave evidence that she used to attend work sites with her father during school holidays (T 158). Indeed, she greatly enjoyed doing so. Sometimes she would accompany him for a week at a time. Referring to the period shortly after his resumption of work, she said this: (T 158) “Q. What was his work in that period for John Cross? A. I think he was just doing the floor boards, like he was not doing any of the heavy sanding or anything like that. It was just the general duties that he was doing for John.”

She later added: (T 159) “Q. When you saw him at those work sites, did you ever see him after the accident using the big heavy sander? A. No, never.”

The defendants relied upon video evidence of Mr Freudenstein working, which I will later describe (Exs 2 and 3). The observations were undertaken over a number of days during January 2004 and again in March 2004, that is, almost three years after the accident. On each occasion, Mr Freudenstein was picking up tools and rubbish, which were loaded onto the light duty truck. There was no film of him doing anything in relation to the heavy sander.

The statement of Mr Jenkins, which included the suggestion that Mr Freudenstein had used the heavy sander, was made on 20 November 2009, that is more than eight years after the event he was describing. It is possible that the plaintiff may have been using the small sander, which he said he could use, although with pain (Ex A, annex J2[26]; supra [158]). However, I think it most unlikely that he was using the large sander. I accept the plaintiff’s evidence and that of Mr Cross on this issue. I believe Mr Jenkins was mistaken in that recollection. The investigator’s film.

Reference has been made to the investigation of the plaintiff’s activities undertaken by the defendants in 2004 (supra [169]). The investigator was not called. The breadth and depth of the investigation beyond the film (Exhibits 2 and 3) is therefore not known. The film was shown to the plaintiff in cross examination and to certain doctors. I will later refer to the medical evidence, including the commentary of the doctors upon the film.

Before the film was shown, the plaintiff was asked a number of general questions about his capacity. The cross examination was in these terms: (T 71) “Q. You said to quite a number of the doctors over a long period of time and I will take you individually to them, that you have significant problems with bending? A. Yes. Q. Is that right? A. Yes. Q. Has that remained more or less the same since the date of this accident? A. It is painful, yes. Q. You tried to avoid bending? A. Yes. Q. You also described difficulties of lifting your shoulder above your head, your hand above your head? A. Sometimes. Q. Does that make it worse when you have to exert yourself; in other words, lifting things up? A. It's more painful, yes. Q. Pressure on it? A. More painful, yes. Q. You are not saying it stops you from doing anything? A. Some days, I can't. Other days, I can get it above my head. Q. Some of the equipment, aside the sander, is actually quite heavy. Do you use air compressors and so forth. A. When you’re laying floors, they do, yes. Q. I take it you were involved in the delivery of these to various sites? A. Yes. Q. What does a compressor weigh? A. 30 kilos may be. Q. It is a very heavy piece of equipment to lift? A. No.”

The cross examination continued: (T 72) “Q. What about lifting in and out of the van; do you do that? A. Yes. Q. Wouldn't you avoid doing that? A. If the other guy was there. If I had to do, I do it. Q. If there was somebody else there "please lift this for me" they would? A. Yes. Q. Most jobs they're at least 2 people if not more? A. Yes. Q. There will never be any occasion where you would be required to lift a compressor for example? A. It's - if I was the only one at the truck, yes, I would take it off. Q. You can leave it until the boys came out and get them to do it for you because of your problems? A. Yes.”

The investigation was conducted over six days. There were fragments on each day, sometimes separated by several hours. On each occasion, Mr Freudenstein was assisting in the removal of equipment and rubbish from a building site, being one of his duties when working on the light truck. The high point of Day 1 (27.1.04) (Ex 2) was at 12.51 in a sequence which lasted approximately 13 minutes, which included the following: 12.51.30 to 12.51.49, plaintiff can be seen bending and lifting a compressor from the ground onto the ute, and then moving it into position. 12.54 to 12.59, the plaintiff picked up some carpet rolls and some scrap material, loading the ute. 13.00, plaintiff raised his shoulder above his head whilst putting a carpet roll onto the ute. 13.02, the plaintiff used straps to secure the load.

On Day 2 (28.1.04), there were widely spaced fragments covering the whole day from 9.00 am to 4.00 pm. At 9.09.53, the plaintiff can be seen in a sequence which lasts a little over two minutes, carrying wooden planks, where his hands are sometimes raised above shoulder height. On Day 3 (1.3.04) (Ex 3), there is a sequence which lasts approximately three and a half minutes where the plaintiff can be seen picking up empty wooden pallets and wooden planks, which are then placed onto the ute. In cross examination, the following was put to the plaintiff: (T 76) “Q. You see there you were squatting down using what appears to be a lever. I know it's going in reverse but you can see there you are using a lever on the ratchet? A. Yes. Q. And using considerable force, I might suggest to you, so to do? A. No. A ratchet is not that hard to wind. Q. It might not be when you first start out sir, but towards the end it's obvious that you're asserting might I suggest, quite a lot of force, that you actually lever the lever down and you stand up using your feet, legs? A. Using my legs. Q. To try to get enough pressure on it, is that correct? A. Yes. Q. Like that? A. Yes. His Honour: At that point for the record you are standing. Before that you were squatting.”

Day 4 (2.3.04) (Ex 3), included a sequence of approximately three minutes where the plaintiff pulls down long wooden planks onto his right shoulder, reaching with his left arm above shoulder height (T 77). He is shown reaching with his left hand and then using his right hand to pull down the planks.

Day 5 (4.3.04) (Ex 3), showed nothing of consequence. Day 6 (5.3.04) (Ex 3), showed a sequence of four to five minutes where the plaintiff was carrying and lifting rolls of carpet and underlay. The sequence involved him bending to pick up each new roll, dragging the roll from the pile where that was necessary, and then carrying the carpet to the truck. Once at the truck (which by that stage was fairly full), he was required to lift his arms above the level of his shoulders to get the carpet onto the top of the pile. Once the truck had been loaded, he can be seen adjusting the straps. The work was performed with an offsider.

To my eye, the plaintiff’s actions, especially in the last sequence, appeared to be fairly slow and somewhat guarded, as he performed the work. However, I will later refer to the impressions of the neurologists who also viewed the film.

I should, in this context, refer to other relevant evidence. Mr Cross was a much smaller and lighter man than the plaintiff. When cross examined by the defendants, he was asked about the compressor. He said this: (T 104) “Q. And what drives the nail guns? A. Compressor. Q. And do you carry that as well? A. Yeah I do, yeah. Q. That is pretty heavy, isn't it? A. No, as light as a feather. Q. As light as a feather? A. Yes. Q. What do you call as light as a feather? A. It would be lucky to be 20 kilos. Q. Maybe close to 30? A. I never weighed it, no. Q. It is quite a difficult operation to get that on to a truck, isn't it? A. Not really, no.”

Mr Cross was also asked about the weight of the carpets that had to be moved. He said this: (T 104) “Q. When you remove old carpets and things like that from jobs that you do, they can be quite heavy as well, can't they, rolls of carpet? A. Yeah, sometimes, sometimes not. Q. It varies in weight but generally speaking if you have got a large roll that you have to struggle to get it in the upright position and honk it on to your shoulder, you would be able to say that is a fairly heavy roll of carpet, wouldn't you? A. I would have to agree with you. That's why I cut carpet up into smaller rolls. The smaller you cut the roll the easier it is to get it on to the truck.”

The carpets shown on the film on Day 5 appear to be relatively small rolls.

In re-examination, the plaintiff was asked how he felt after performing such work. The evidence was as follows: (T 84) “Q. Could you tell his Honour how you would feel, for example, the day after doing a series of laps of underlay of carpet such as you were depicted lifting in that video? A. I would have a sore arm, a sore back, I probably had it while I was lifting. I would never said I couldn't lift. It hurts to lift my arm above a point but I won't let one of my mates down either. I would go and do the job that I was employed to do to get my money at the end of the week.” (emphasis added)

John Cross gave the following evidence about the plaintiff’s attitude to work: (T 97) “A. ... He would go to work, do his job. He would come home and he would be in agony. He's a man's man, he would do the job but he would hurt later. He would just get stuck in, you know, my back is killing me-- Q. Stuck in a lot of things by the sound of things? A. My word, you know, you just have a drink when you get home and put yourself to sleep more or less, you know? He's a man's man, and he would just do it because it has got to be done. He has got a family to support and he is just that type of bloke. I would like ten of him, I would like ten of him without a doubt.” (emphasis added)

Mr Cross added: (T 97) “A ... He was sent with his offsider to pick up carpet and the offsider was there to pick up carpet. If there was an underlay or something he would pick up that and throw that on. But he is not that type of bloke, he is head down bum up. He is not a bludger. He is not going to let the kid, you know, outshine him if you like, you know? It is just the nature of the bloke. As I said I would like ten of the bloke.” (emphasis added) Work with United Resources Management.

Having left John Cross in March 2005, Mr Freudenstein began work with United Resources Management. He remains with that company, employed as a permanent casual (T 24). He said that, since he began, he has only taken about ten days off (T 24).

United Resources Management has the contract to collect garbage from parks, beaches and shopping centres on the Warringah Peninsular between Mona Vale and Palm Beach. The garbage is collected by truck, which has a driver and an offsider. Mr Freudenstein works as the offsider.

When he first began, Mr Freudenstein worked between about 6.00 am and 1.00 pm or however long it took to do the run (T 50). Nowadays, he works on a truck operating between 2.00 am and about 8.00 or 9.00 am. The operation is quite unlike the collection of garbage in some suburbs of Sydney, where fit young men run behind a truck, positioning garbage bins so that they can be emptied and then standing on a platform at the rear of the truck. Mr Freudenstein described the job in these words: (T 50) “A. We drive, or the driver drives a truck to a beach, parks it more or less central. We get out, walk round the park, bringing the bins over to the truck, empty them and put them back on their stands. Q. These are parks in the Northern Beaches area? A. Yes.”

They begin at Mona Vale and end at Palm Beach. The bins (which are the plastic wheelie bins) are housed in garbage receptacles in beaches and parks and at shopping centres. Mr Freudenstein said this: (T 51) “A. It's in a steel cubicle. We open the door on it, wheel the bin out, wheel it up to the truck, position the bin on a bin lifter and push a button and everything else is automatic.”

He added: (T 51) “Q. And you just pull the plastic wheelie bin along to the truck? A. To the truck. Q. Is that physically difficult? A. No. Q. And do you have to lift it? A. No.”

The driver and Mr Freudenstein then return to the cabin of the truck. He works six days a week, including Sunday (T 52). In the course of a shift, he shares the work with the driver. There may be 30 or 40 bins at parks and probably 50 in shopping centres (T 87). He is not required to bend (T 87). The bins at shopping centres are smaller (120 litre). Those at parks are the usual plastic wheelie bins and are larger (240 litre) (T 51; 86). On the weekend, especially in summer, they may become “pretty full” (T 86). In cross examination Mr Freudenstein said this: (T 86/7) “Q. So I take it also that they are a lot heavier to drag when they are fuller now than when they are empty? A. Yes. Q. There are a number of parks there where you would have to drag them over grass, and or sandy ground? A. Mainly grass. Q. Up hills? A. No, because we can park the truck. We have got a key to access all the parks and we can drive the truck to that section and park it and then move up to the other end of the park. Q. Even so there would be some rises and so forth within the park that you would have to get these bins over if you were carrying them to a central point? A. Not really, no, they are mostly flat parks out there. Q. Nonetheless wheeling over a heavily laden 240 litre did you say? A. Yes, that's right. Q. Bin over grass? A. Yes. Q. That must require some effort at least? A. Not really, no, it doesn't.”

He also gave the following evidence concerning his performance of the work: (T 53) “Q. How, if at all, do you say that anything you felt about your body from the time of your fall affects the doing of your job these days? Do you feel your back when you are doing this work? A. Getting in and out of the truck sometimes, yes, my back does hurt. But then there's other mornings where it's not hurting, so. Q. Are you able to say whether your back feels one way at the end of the run and another way at the beginning or is there no pattern? A. There is no pattern with it. It might be the way I twist, the way I've slept that night. Sometimes I've got to get up and have Panadol before I go to work. Sometimes I have them when I get home. There is just no pattern to it. Q. In relation to your lower back pain, would you tell us something about the course of it since the time of the fall? Has it been a constant thing? Does it come and go? Are you ever lower back pain free? Just a general description of your subjective experience of that lower back pain. A. Some days it's free, yes. Other days it's twice as bad as some other days. It varies. I know it's there and when it is there, it's sore.”

The pain in the left shoulder is likewise variable (T 54). He thought his back was probably getting worse (T 54) and that he was taking more Panadol for the pain than before. He said, however, that the tablets work and he therefore keeps taking them (T 54). He would average about one or two packs (of 24 tablets) a week (T 54). He has not had physiotherapy or hydrotherapy or other treatment because of the cost (T 56).

Finally, in terms of his work future, it was the plaintiff’s case that there had been a loss of earning capacity. He said that he could no longer perform the work of a motor mechanic (T 53). He was no longer capable of the heavy work he performed as a sander with John Cross (T 48). He was confined to the sort of work that he is now doing, where he is not required to lift or excessive bending (T 53). He said this, in respect of his future: (T 60) “Q. In relation to your expectations about your work life, do you have today any view as to how long you might wish to remain in work force, work being available? A. Till I'm old enough to retire. Q. What age do you understand that to be? A. 65 or 67 I think. I'm not sure.”

In answer to counsel for the defendants in cross examination, he added: (T 87) “Q. And you have no difficulty performing this work I think you said? A. No. Q. And you imagine you will keep going with this work until you retire? A. If I can, yes. Q. And there is nothing from your employer or otherwise to suggest that you wouldn't be able to? A. No.”

Let me then turn to the medical evidence, which was provided by orthopaedic surgeons, neurologists and psychologists or psychiatrists. The orthopaedic evidence.

The orthopaedic evidence was dealt with by way of reports. The solicitors for the plaintiff qualified Dr Graham Marney and the defendants Dr Bodel. Each was an orthopaedic surgeon. Each saw the plaintiff in the first few years after the accident and saw him for a second time in 2009. Both took broadly the same view.

Dr Bodel first saw Mr Freudenstein in October 2002, that is, 18 months after the accident. The plaintiff gave a history of returning to work on light duties. He complained of pain and stiffness in his left shoulder and back (Ex 1, report 23.10.02). On examination, Dr Bodel recorded the following findings in respect to the left shoulder: (Ex 1, report p 2) “He has full shoulder abduction and rotation on the right hand side and there is mild generalised wasting in the left shoulder . Abduction on the left is to 90 degrees and forward flexion to 100 degrees and there is a slight restriction of external and internal rotation. There is no definite instability in the left shoulder but there is weakness on resisted shoulder movement and there is some subacromial impingement .” (emphasis added)

Dr Bodel recorded the following findings in respect of the plaintiff’s back: (Ex 1, report p 2) “The patient has a good range of lateral bending and rotation of the thoracic spine but there is tenderness at the lumbosacral junction. He reaches forward in flexion with his hands to the mid tibia. He has increasing backache at this point and also pain on extension. Straight leg raising is 80 degrees on both sides and there is no evidence of nerve root tension or neurological abnormality in the lower limbs.”

Dr Bodel’s opinion was expressed in these words: (Ex 1, report p 2) “This patient had a fall from a height on 16.4.2001 in the circumstances described above. He has suffered a soft tissue injury to the left shoulder, a soft tissue injury to the neck and lower back although he may have rotator cuff pathology in the left shoulder and possible disc injury in the lumbosacral region. The patient has been able to return to work as a floor sander. He has had to modify his duties because of persisting pain in the back and in the left shoulder. The patient’s complaints are quite genuine and he does have ongoing pathology in both areas but the exact nature of the pathology is uncertain without seeing his investigations.” (emphasis added)

Dr Bodel encouraged the plaintiff to exercise. He saw the possible need for further treatment of the shoulder, either by hydrocortisone injection or surgery. He thought there had been a 12% overall permanent impairment of function of the left upper limb as the result of the fall, and a 10% permanent impairment of the back, also probably due to the fall.

Dr Mahony first saw Mr Freudenstein on 29 April 2003, that is, two years after the accident (Ex A, annex A4). He complained of pain and stiffness in the left shoulder and low back, which did not radiate (Ex A, annex A4, p 2). Left shoulder movements were possible to about 90 degrees of abduction with little rotation. There was some restriction of movement in the back. Dr Mahony expressed the following opinion: (Ex A, annex A4, p 3) “Mr Freudenstein gave a history of sustaining a laceration to the lower lip. He has symptoms referable to a cervical strain, a capsulitis of his left shoulder and a rotator cuff lesion could not be excluded as well as a low lumbar back strain. It is consistent that the incident he described on the 14th April 2001 has produced such lesions.”

Dr Mahony recommended further investigation by CT or MRI with physiotherapy in the meantime. He also made the following comment in relation to Mr Freudenstein’s work: (Ex A, annex A4, p 4) “In order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant use of the left arm above the shoulder level or significant bending or lifting.”

According to Dr Mahony, there was a 15% permanent impairment of the efficient use of the left upper limb (Ex A, annex A5).

Dr Mahony saw Mr Freudenstein again on 20 November 2008. He continued to complain of restrictions of movement in his left shoulder and low back pain. The low back pain radiated to his buttocks on prolonged sitting. On examination, Dr Mahony noted some restriction of movement of both the left shoulder and back. Before he reported, he had access to an MRI which was undertaken on 15 January 2009 (arranged by Dr Milder, neurologist). Dr Mahony summarised what he believed emerged from that investigation in these words: (Ex A, report 20.1.09, annex A3, p 2) “The MRI of the lumbosacral spine suggested a disc lesion at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation.”

Dr Mahony then expressed the following opinion: (Ex A, report 20.1.09, annex A3, p 2) “Mr Freudenstein gave a history of sustaining a laceration to his lower lip. He has symptoms referable to a cervical strain, a capsulitis of his left shoulder and a rotator cuff lesion could not be excluded as well as discogenic lesions at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation.”

He believed it was consistent that the incident of 14 April 2001 had produced such lesions. He recommended physiotherapy and that Mr Freudenstein’s work be modified. He said this: (Ex A, report 20.1.09, annex A3, p 2) “In order to minimise an exacerbation of his symptoms, I would suggest he restrict his future activities to activities not involving significant use of the left arm above the shoulder level or significant bending or lifting.”

Dr Mahony once more estimated the degree of permanent loss. There was, in his view, a 15% permanent loss of the efficient use of the left upper limb above the elbow and a 15% permanent impairment of the back (Ex A, annex A1, report 22.1.09).

Dr Bodel saw Mr Freudenstein once more on 20 April 2009. Mr Freudenstein told him that nothing had changed since the last consultation (Ex 1, report p 2). He made an examination. He had been provided with a summary of the MRI findings of January 2009. He had also been furnished with reports, including that of Dr Mahony. He said this: (Ex 1, report p 4) “A subsequent letter on 20 January 2009 confirms that at that time he still had a restricted range of left shoulder movement and I agree with that.”

Dr Bodel then addressed specific questions which had been posed by the solicitors for the defendants. The first question and answer was as follows: (Ex 1, report p 4) “ 1. What are the plaintiff’s present complaints and disabilities? This gentleman’s main ongoing complaints are the pain and stiffness in the lower part of the back aggravated by prolonged sitting bending or twisting and lifting. He also has pain and stiffness in the region of the left shoulder and pushing, pulling or lifting or use of the left arm overhead aggravates the pain.”

He thought that such complaints were reasonable and that there was a direct causal link to the accident. He believed that the plaintiff was coping quite well with his garbage collection work (Ex 1, report p 5) which “he should be able to continue ... indefinitely” (Ex 1, report p 5). Dr Bodel concluded by saying that ongoing treatment should include analgesic medication. The neurological reports.

The plaintiff qualified Dr Dan Milder, neurologist, to express an opinion concerning the plaintiff’s complaints. Dr Milder saw Mr Freudenstein on three occasions, providing the following reports: report 19.8.03 (Ex A, annex D4) report 19.8.08 (Ex A, annex D3) report 12.3.09 (Ex A, annex D1)

The defendants retained Dr Ronald Fine, neurologist, who saw the plaintiff on 9 December 2002 (Ex 1, report 10.12.02). They then retained Professor Paul Spira to give an opinion concerning Mr Freudenstein’s present complaints. Professor Spira provided a report on 22.4.09 (Ex 1). Dr Milder and Professor Spira were called to give evidence. Each had impressive qualifications. Dr Milder held fellowships with various American universities, including Harvard. He is currently a Conjoint Senior Lecturer at the University of New South Wales. Dr Spira is Conjoint Associate Professor at the University of New South Wales.

Let me first summarise the views expressed in the various reports. I will then deal with the oral evidence of Dr Milder and Professor Spira.

Dr Fine saw Mr Freudenstein on 9 December 2002, that is, 20 months after the accident. Mr Freudenstein complained that he was unable to elevate his left arm beyond 90 degrees and had periodic pain in his lumbar spine (Ex 1, p 1). Dr Fine examined his shoulders and found no wasting. His reflexes were normal (Ex 1, report p 2). There was restriction of movement. He could not elevate his left arm above a right angle, but could perform various other movements. A neurological examination of the lumbar spine did not reveal any abnormality. Dr Fine expressed the following view: (Ex 1, report p 2) “I am unable to explain why this man cannot elevate his left shoulder. There is no evidence of a brachial plexus lesion and there does not appear to be any significant orthopaedic lesion from the straight X-rays which he brought along and from the clinical examination. However, to be absolutely certain there is no neurological involvement I suggest he have nerve conduction studies.”

However, nerve conduction studies were never undertaken.

Mr Freudenstein then saw Dr Milder on 19.8.03. His complaints included pain in the left shoulder and lower back. Panadein Forte gave him some relief. Dr Milder noted the following: (Ex A, annex D4, p 1) “He suffers low back pain, present daily, lasting up to the entire day. It does not radiate.”

On examination movements were limited, but the neurological examination was normal. Dr Milder thought that the shoulder pain should be examined by an orthopaedic surgeon. His opinion in respect of the lumbar spine was as follows: (Ex A, annex D4, p 2) “I feel Mr Freudenstein has sustained lumbar soft tissue and ligamentous injuries. The possibilities of an annular tear and/or protrusion of a lumbar invertebral disc(s) are suggested .” (emphasis added)

Dr Milder added that the outlook was uncertain. Pain may be reduced by appropriate analgesics and anti-inflammatory medication (Ex A, annex D4, p 2). He recommended an MRI which, regrettably, was not carried out for a further five years.

Mr Freudenstein was examined again by Dr Milder on 19 August 2008, commenting only on the low back pain which was said to be present intermittently throughout the day. He provided the following opinion: (Ex A, annex D3, p 1) “I feel Mr Freudenstein continues to suffer lumbar soft tissue and ligamentous injuries. The possibilities of an annular tear and/or protrusion of a lumbar intervertebral disc(s) are suggested.”

Again he thought the prognosis was uncertain. He recommended medication, including analgesia, as well as physiotherapy. He added: (Ex A, annex D3, p 1) “Nevertheless a longstanding tendency to low back pain may remain. A predisposition towards the accelerated development of lumbar spondylosis has resulted.”

Dr Milder again recommended that an MRI scan be undertaken to determine whether there was an annular tear or protrusion. An MRI was undertaken on 15 January 2009. Dr Milder’s subsequent report (12.3.09) included the following summary of the findings: (Ex A, annex D1, p 1) “Scans of the lumbar spine evidenced a protrusion of the L4-5 intervertebral disc, indenting the thecal sac. The protrusion together with facet joint arthropathy, ligamentum flavum hypertrophy and congenitally short pedicles at the same level resulting in canal stenosis at that level. A right paracentral protrusion of the L5-S1 intervertebral disc extended to the right first sacral nerve root. Slight narrowings of the neural exit foraminae at the L4-5 and L5-S1 levels, traversed respectively by the right fourth lumbar and the right fifth lumbar nerve roots were present.”

Arrangements were made for Dr Milder to see Mr Freudenstein once more on 12 March 2009. He reported the same day, expressing the following opinion: (Ex A, annex D1, p 2) “Mr Freudenstein continues to suffer lumbar soft tissue and ligamentous injuries. He continues to suffer protrusions of the L4-5 and L5-S1 intervertebral discs. ‘Irritability’ of the right and left fourth lumbar and/or the right and left fifth lumbar nerve roots is suggested.”

Dr Milder described the prognosis in these terms: (Ex A, annex D1, p 2) “The outlook is uncertain. Low back pain may diminish with physiotherapy and analgesic and anti-inflammatory medications. Nevertheless, a longstanding tendency to low back pain may remain. A predisposition towards the accelerated development of lumbar spondylosis has resulted. ” (emphasis added)

Dr Milder did not believe that Mr Freudenstein should “take part in duties requiring prolonged standing or sitting or stooping or the lifting of heavy objects” (Ex A, annex D1, p 2).

Professor Spira’s report of 22 April 2009 recorded the plaintiff’s complaints of low back pain with some radiation to the posterior proximal thigh as well as left shoulder pain, brought on by abduction or extension beyond 90 degrees (Ex 1, report 22.4.09, p 1/2). Professor Spira then recorded his findings on physical examination. They included the following comment, which was consistent with my own impression of Mr Freudenstein: (Ex 1, report 22.4.09, p 2) “He provided his history clearly and with no element of dramatisation.”

In respect of the left shoulder, Professor Spira noted the following: (Ex 1, report 22.4.09, p 2) “Upper and lower limb muscle tone, bulk and power were normal and symmetrical and, specifically, there was no evidence of atrophy in either the left deltoid or in lower limb musculature. All reflexes were readily elicitable and were symmetrical. The plantar responses were flexor. I examined left shoulder mobility and noted restriction by pain of passive abduction and extension beyond 90 degrees. There was crepitus within the left shoulder joint.”

Professor Spira had been previously furnished with a number of reports, including Dr Milder’s report which incorporated the summary of the MRI findings. He did not have access to the radiographs, which he said was a disadvantage (T 201). He expressed the view that Mr Freudenstein was “carrying left shoulder and low back discomforts as the only sequelae to the fall” (Ex 1, report 22.4.09, p 3). So far as the left shoulder was concerned, he said this: (Ex 1, report 22.4.09, p 3) “ The left shoulder trauma appears to have resulted in some joint dysfunction as there is palpable crepitus present . I did not see radiographs of the shoulder and in any case believe that this aspect should be assessed by either a rheumatologist or orthopaedic surgeon as recommended by Dr Milder.” (emphasis added)

So far as the low back pain was concerned, Professor Spira commented as follows: (Ex 1, report 22.4.09, p 3) “The low back pain is not accompanied by any radicular signs and, as such, the back trauma is presumably of musculo-ligamentous form. Again I did not see the MR films to assess them effectively but in the absence of radicular signs the MR changes are presumably asymptomatic and Mr Freudenstein’s symptomatology is not consistent with spinal canal stenosis which was apparently demonstrated in the MR films. The back pain is far more likely to be related to musculo-ligamentous strains but this aspect requires further investigation, possibly with bone scanning. There may be a case for a trial of physiotherapy to see if Mr Freudenstein can be extended significant relief.” (emphasis added)

Both complaints, in his view, required further investigation and management (Ex 1, report 22.4.09, p 3). So far as Mr Freudenstein’s work was concerned, Professor Spira made the following comment: (Ex 1, report 22.4.09, p 3) “Despite his back and shoulder pains Mr Freudenstein continues to participate in physically demanding work as a garbage collector. He may well benefit from seeking work involving less effort. ” (emphasis added) The oral evidence of the neurologists.

Both Dr Milder and Professor Spira were called to give evidence. Each was shown the investigation of Mr Freudenstein’s activities in January and March 2004 (Exhibits 2 and 3). Each was cross examined on the significance of the MRI findings. In respect of those findings, there were two issues. First, given the accident occurred in March 2001, and the MRI was undertaken in January 2009, could the changes appearing in the MRI be related to the trauma? Secondly, if they could, what was their significance in the context of Mr Freudenstein’s complaints of disability and reduced working capacity?

In answering the first question, it was important to have regard to the context. Before the fall, Mr Freudenstein had continuously performed heavy work without difficulty, whether as a mechanic or as a floor sander. He had done so over many years. The fall was, of course, dramatic, involving a four metre drop. The plaintiff thereafter complained of back pain and restriction which had continued to the present time. He returned to work, although on lighter duties.

Dr Milder, in that context, was prepared to relate, as a matter of probability, the changes to the trauma. In cross examination, various other possibilities were explored, including that the changes were the product of repeated micro-trauma (T 168/9). The cross examination included the following: (T 169/70) “Q. So doctor what we have is an absence of any radicular signs in 2003, we have a MRI which is 8 or so years after the accident which demonstrates a certain pathology as we've been through. There is no way that one can be sure that the protrusion was caused by the trauma complained of, is there? A. No-one can't be certain. All that I would say is that protrusion of a disc that compresses a nerve does not necessarily result in radicular signs. If the patient states at a particular point pain developed and the pain was not present prior and the radiologic studies attest a protrusion, then the clinician usually concludes that one was consequent upon the other, in other words that the protrusion was consequent upon the trauma. That is the usual conclusion, the clinical conclusion. Q. Doctor, it could also be that he sustained, as you suggest, a soft tissue injury responsible for the pain? A. Yes. I have to qualify myself because what you're inferring is correct in a sense that soft tissue ligamentous injury is commonly used as accepted but nevertheless is a non specific term but a protrusion is a very different thing. So it's not uncommon, as you suggest, that someone has a little bit of back discomfort with prolonged heavy work, but it's a different thing if someone says well look something happened and after that or virtually immediately after that or in the days after that a severe pain developed and you find a protrusion, then the likeliest conclusion clinically is that the protrusion is responsible for the pain, and as I say that even if it is compressing a nerve route which it is on this report, it's - the words better used in the report by the radiologist are extended to the right sacral nerve route but you do not have to have radicular signs. Q. Doctor, this is an MRI 8 years after the event? A. (You’re) dependent on the correlation of the history and the radiologic findings and to an extent also your assessment of the patient's reliability. Q. And your clinical examination, is that right? A. Yes, and a clinical examination with a proviso, as I say, that the absence of radicular signs does not negate the significance of a protrusion.”

Professor Spira, addressing the same issue, said this: (T 190) “Q. Is it possible to express any view as to causation, bearing in mind that history of work, (as to) whether or not the MRI represents anything that might have occurred in the accident? A . It's impossible to say when any particular (disc) protrusion occurs. Basically it's usually at times of strain or impact. You can't time it but let me just say that I have not seen the films. Words on a page do not convey the actual significance of these lesions adequately - I mean, they give you a pretty good idea. I would regard what is written on this page as virtually within normal limits for age and occupation.” (emphasis added)

Later in cross examination Professor Spira added: (T 206) “A ... I have never said that the protrusion is not due to his fall, I just do not have any evidence of it being due to his fall. HIS HONOUR Q. You say you don't have any evidence, you don't have any radiological evidence but you have at least the history? A. The history does not fit, that is the very point I am making, that the history is not that of nerve root compression. At no stage has this man provided me a history of anything vaguely suggestive of radiculitis. So if he has got a disc protrusion it is not causing him any problems.”

The two experts disagreed as to the significance of the changes, assuming that they were related to the trauma. There were no radicular signs (that is, symptoms in the legs). Dr Milder, in the passages quoted, repeatedly said that the absence of radicular signs did not necessarily negate the significance of the protrusion (T 170). Professor Spira, whilst agreeing, said that you rarely saw compression without signs (T 205). Professor Spira emphasised that the history provided by Mr Freudenstein was of diffuse pain. The protrusion, if caused by the fall, was therefore asymptomatic. Hence, according to Professor Spira, the cause of the back pain lay elsewhere (T 206). Professor Spira thought the back pain may be caused by ligamentous injury (T 193), or tension myalgia (T 202). Tension myalgia can be treated, especially in the early stages (T 202). Professor Spira acknowledged that Mr Freudenstein’s response to treatment after so many years was not likely to be as good (T 207).

Let me move from that to the DVD (Exhibits 2 and 3) and its significance in assessing Mr Freudenstein’s capacity for work. In examination in chief, Dr Milder said this: (T 167) “Q. ... there has been shown to the Court some video evidence of the plaintiff in late 2003 and early 2004 doing some physical work which involves, amongst other things, his man handling rolls of underlay or carpet on to a truck with the use of arms above shoulder height. The plaintiff's evidence is yes that was done. The plaintiff's further evidence is that he was self medicating with Paracetamols further that after doing that sort of work and he'd as it were suffer with pain from the use. Do you have anything to say in relation to that evidence? Is that reasonable that that should be so? A. There are patients with intervertebral disc protrusions who do all manner of things because they have to. They can do it. It's not that they can't do it but they experience discomfort and so I don't think it's because you have an intervertebral disc protrusion means that you can't do such a thing but you do it with a degree of discomfort and you put stresses on the spine. You feel the effects immediately and in the longer term you almost certainly have a greater rate of progression .” (emphasis added)

In cross examination, Dr Milder was shown the sequence on Day 1 (T 172/3), where the plaintiff lifted the compressor from the ground to the ute and then loaded the truck with building material. Dr Milder said this: (T 174) “HIS HONOUR Q. Perhaps you would like to comment? A. I suppose I would say two things, (a) when he was lifting the rolls of carpet he seemed to me to walk slowly and deliberately. It is a slight observation and he seems to me to have what is called an antalgic gait, in other words, when you tend to - people with a back injury tend to straighten a bit. You don't have the normal curvature, it is an impression, after all I can only see that. In terms of someone with a nerve root compression being able to lift something, yes they can, yes they can. They may not even feel an enormous amount of discomfort when they do it but they are likely to have after effects, to feel stiff later on that day or the following day.”

Dr Milder was taken to the video for 1.3.04 and 2.3.04 (supra [175]). He said he had the impression that the person working with the plaintiff “was moving more easily”, more quickly (T 176). The plaintiff appeared to be taking greater care when lifting loads than did his companion (T 176). Dr Milder added: (T 176) “A. Than the other gentleman, his co-worker, that his movements were a little slow. I can see that he is a fuller individual and so on, but it is an impression. One can't be definite about it. In the various manoeuvres there was more time taken between getting it upright, getting up on to his shoulder, more care in getting it onto the truck. HIS HONOUR Q. This is the plaintiff? A. The plaintiff, and that the other chap was moving quite definitely faster, the other fellow which is why I asked was he younger, that he was carrying the loads faster. That seemed to me to be a distinct impression. The plaintiff's movements were not the movements of someone who easily carries loads and just transfers them. Now he may be by nature that maybe the way he moves, but it could also be he does have an impairment.”

In cross examination, counsel put the following to Dr Milder: (T 177/8) “Q. You saw him some six months before March. He exhibited a severe restriction of movement in his back at the time of your consultation, it is not exhibited there, is it? A. I think there is. If you want my impression, and I don't think you rely on this as a final colloquial judgement, my impression is of a man who has some restriction of movement. I am not trying to be as ambient, but if you measure the philosophy of his movement in mathematical terms, you will find that that man is moving more slowly. If you subdivide the categories of movements as he lifts, as he places something upright, as he then moves, as he then puts it onto the truck, I think you will find mathematically which is said to be the highest form of truth, it is reduced. Q. The range of movement or the speed? A. The speed.”

Counsel for the defendants put that the video was not consistent with a man who had a disc protrusion. Dr Milder responded: (T 177) “A. It is a gentleman who has a disc protrusion doing the best he can.”

Counsel for the defendants, in submissions, was highly critical of Dr Milder’s evidence, stating that “he was quite plainly an advocate in the plaintiff’s case” (DS [47]). I disagree. Dr Milder was invited to give his impressions. He did so tentatively. He repeatedly emphasised that it was an impression. I had the same impression, namely, that the plaintiff was slower and more guarded than his companion.

However, Professor Spira had a different impression. He said this: (T 189/90) “Q. Yes. Having seen his activities and his movements on those DVDs, over the span of time that he appears on those DVDs, are you able to say anything about your estimate of his work capacity? A. He appears to have unrestricted capacity. Q. And insofar as you can determine it from visual observation, have you anything to say about any restriction of movement, either of his shoulder or of his back? A. I observed the shoulder in particular in view of the fact that this is one of the regions of pain and his problems were abduction and extension of the shoulder. He appears to be abducting and extending his shoulder normally particularly when loading the truck up high with rolls of carpet and other things, pallets it looks like, the shoulder seemed to be moving normally. Q. What about the back? A. He didn't have any pain behaviour, he certainly didn't (spare) his back in any way when he was working. Q. What do you mean by "pain behaviour"? A. People who are in pain grimace or stop in their actions for a moment as they feel the twinge of pain. There was no pain behaviour there, he seemed to be working normally.”

Finally, each specialist provided his opinion on the plaintiff’s capacity for work. Dr Milder said that, on the basis of the “whole story and radiological findings”, he would advise against heavy mechanical work (T 167). A description of the work which Mr Freudenstein used to perform as a mechanic, tyre fitter and floor sander, was put to Dr Milder, as an assumption. He was then asked the following: (T 166) “Q ... are you able to say whether in your opinion there has been any reduction in his ability to take part in those duties described by His Honour and me? A. Yes, I think the abilities would be reduced. Q. Are you able to say by what percentage? A. Of the order of 60 to 70 percent.”

That answer was attacked by counsel for the defendants as further evidence that Dr Milder was an advocate for the plaintiff. The defendants, in submissions, said this: (DS [48]) “48. Dr Milder was loathe to give any concessions whatsoever, when such concessions were clearly called for. For example, even if it was discernable that he had some restrictions of movement in the DVD evidence of his activities in January and March 2004, Dr Milder was still prepared to assess him as being 60-70% disabled despite the clear evidence that he was (a) working hard; (b) not claiming any economic loss at the present time in his current occupation which appears to be paying him a significant salary. (c) had only had 3 weeks off in 9 years despite clearly performing some heavy work. It must be borne in mind the plaintiff himself believes that the occupation he currently follows is well within his capacity, and he believes that he is capable of carrying out such an occupation through until retirement age. All of these factors appear to have been ignored by Dr Milder.”

However, that submission misunderstands Dr Milder’s view. He was talking about disability for heavy work which the plaintiff had once routinely performed. Such work, for the reasons he gave was, in his view, contra-indicated, although he was still capable of carrying out certain tasks, with pain.

Professor Spira, having seen the DVD, thought that Mr Freudenstein’s capacity for work was unrestricted. He regarded the suggestion of a 60% to 70% incapacity as “ludicrous” (T 210).

However, an explanation emerged for the difference between the views of Dr Milder and Professor Spira. There was the following exchange between counsel for the defendants and Dr Milder: (T 171) “A. He may be able to work. My own sense of it would be that he might be able to work to the age of 65 with light duties, it's possible, but that he would be able to take part in heavy duties, I think that's most unlikely. Q. You say it depends to the extent on his degree of stoicism and the extent to which any pain might be restricting his activities, is that right? A. Yes, but he does not wish to impose stoicism on people. People do not need to suffer if there's an alternative . Q. And some people have a higher pain threshold? A. Yes, that's true.” (emphasis added)

Professor Spira, more than once in cross examination, drew the distinction between capacity and pain. In answer to questions from me, Professor Spira gave the following evidence: (T210/11) “A. Your Honour, it comes down to definitions now. We are talking about pain. Now equating pain with disability is extremely difficult because we do not feel his pain. We can only assess how much pain he has by what he does, and what we see when we examine him. So therefore I have to go on the evidence that I have got. The evidence I have is on that DVD and on the physical examination that I have performed and on the history that I have obtained. That is my evidence. Now on that evidence I can see no evidence of actual disability. I accept that the man may be in pain but pain does not equal disability. Q. Why do you say that? A. Because of the fact that people in pain can do almost anything depending on the severity. People with migraine for example may go to work. No-one says they are not suffering, I am not denying this man is suffering. I am just saying to what extent does it interfere with his capacity to work? The DVD shows us. Q. What you say puzzles me because in this Court it is common place to hear evidence where doctors recommend that someone should go back to light duties rather than heavy work? A. As a progress. I mean, our aim is put them back to heavy work or to return to their former level of work unless there is evidence of something that would prevent that individual from doing that. Now I don't know what that evidence is here. I accept his pain, I am not denying pain but you can't equate pain with the disability. There are some pains which (are) totally disabling, I accept that. Angina, no-one expects anyone (with) angina pectoris to go and do a full day's work. All I am saying is basically you have got to assess the pain on the basis of what it does to an individual. Q. Would you discount entirely his own assessment, him having done the job that he couldn't go back to working the heavy sander? A. I don't discount that, I am willing to accept that. Q. Isn't that a reduction in his working capacity? A. I would accept that. In that sense it is a reduction in his working capacity.”

Elsewhere, in cross examination, Professor Spira said this: (T 209) “Q. He has got a 60 or 70 percent disability, he is disabled to the extent or to the percent of 60 or 70 percent from doing heavy physical labour now? A. Look, I would have to ignore some very vital evidence that I have seen in this courtroom today and observed in the last 24 hours. In other words to suggest that what you are saying is incorrect. I mean, the fact that - did he look 60 to 70 percent disabled to you on that DVD? Q. Didn't you agree with me earlier that you can do that sort of work with his complaints but he would be doing it in great pain? A. I agree you can be doing it in pain. I doubt great pain because I don't think anyone would continue to work like that in great pain.” The psychological evidence.

The original claim included an allegation of brain damage, which is no longer pressed. The injuries, nonetheless, are said to have had psychological consequences. It is instructive to examine, more or less chronologically, the documentary record of medical examinations undertaken by the plaintiff, ignoring the issue of brain damage.

It will be remembered that the plaintiff’s wife, Michelle, made a statement to investigators about six months after the accident (supra [159]-[160]). She said, at that time, that she had noticed “big changes” in her husband. He was in pain. He was drinking more. Their relationship had deteriorated. He had become difficult to live with (Ex A, annex J4 [11]-[13]).

Almost a year after the accident, the plaintiff was referred to Dr Alam, a general practitioner. Dr Alam’s report included the following: (Ex A, annex C1, report 20.3.02, p 2) “3. He is irritable, cranky and moody. He would argue with the wife. For example over a spaghetti dish which is ‘quite unlike him’. Normally he is even tempered. Even with his young daughter Kirsten, he has been yelling at her. In fact he has separated from the wife, whom he has known for 24 years and they have been married for 13 years.”

More than two years after the accident, the plaintiff saw Dr Phillip Brown, psychiatrist, qualified by the defendants. The history he gave Dr Brown included the following: (Ex 1, report 16.10.03, p 3) “He said that he was angry and irritable at home for about six months after the fall . ‘This was when his pain was intense. I was frustrated. I could not lift my shoulder up. It was hard walking up the stairs at the unit. I was putting s..t on them at home. Little arguments turned to big ones!’ He said that he split up with his wife and left their home unit and moved to his boss’ place. ‘She had had enough of my attitude. She went to stay with her parents!’ There was never any physical violence. They got together again after his mother’s death, which was some six months after separating. He said that his attitude changed after his wife left as he missed her. He said that he no longer had this problem .” (emphasis added)

The report continued: “ He said that (he) does not think that he had any psychiatric or psychological problems. He said that he does not let his pain get to him and frustrate him anymore. He said that his wife and boss did not consider that he has suffered any psychological or mental impairment.” (emphasis added)

Dr Brown canvassed various possible psychiatric conditions, including an adjustment disorder, as well as brain damage. He said this: (Ex 1, report 16.10.03, p 8) “ I found no reason to suspect that Mr Freudenstein was exaggerating his symptoms. In fact he gave direct and simple answers to questions relating to his symptoms and so I needed to be sure that he was not minimising any symptoms and thus I spent time trying to elicit others. His case is unusual in that he is not complaining of any symptoms which he is attributing to a head injury. ...” (emphasis added)

Dr Brown also noted that Mr Freudenstein had not sought psychological treatment. In his view he did not require such treatment (Ex 1, report 16.10.03, p 17).

Meanwhile, the plaintiff’s solicitor had arranged for Mr Freudenstein to see Professor K F Kennett, psychologist. There are a number of reports, mainly concerned with the issue of brain damage, and to that extent, irrelevant. However, Professor Kennett did take a reasonably full history, including from members of the plaintiff’s family, and they are instructive. His clinical notes of 24.4.04 (three years after the accident) included the following from the plaintiff’s wife: (Ex A, annex E1) “Great change in his behaviour since he fell from roof area at the hotel. Relationships strained. Doug has extreme mood swings and is unpredictable. Will be having a normal conversation – if he does not agree he becomes verbally aggressive and physically destructive. He has never hit me but will punch and damage walls and doors. Such behaviour is constant about 2-3 times a week. Alcohol impacts on his moods. Social drinking with me. Easily provoked. For little reasons he will show explosive response patterns. Recently separated but are back together again.”

Professor Kennett’s notes also included the following history provided by the plaintiff: (Ex A, annex E1) “He seems to forget his injuries and will initially say ‘I’m all right’ but when asked about specifics like his back, neck, shoulder he admits they are not very good.”

Professor Kennett also interviewed the plaintiff’s daughter, Kirsten. His notes were as follows: (Ex A, annex E1) “Confused over dad’s behaviour and his rapid mood changes. Impossible to (predict) how he will respond to situations. Concerned about his attitude to mum – always yelling at mum. Dad hard to get along with. Major change in his behaviour since the accident. Always willing to help and seemed to understand. Alcohol drinking has increased – very heavy drinking over Christmas. When told about how he behaves he says he can’t remember. He continues to go to work in pain. Determined to become independent. Dad becomes very abusive and breaking things. Loves dad but can’t cope with his behaviours.” (emphasis added)

Professor Kennett was critical of Dr Brown for having relied exclusively upon the plaintiff without interviewing family members. Dr Brown, on 13 May 2004, responded to that criticism. He said that he found Mr Freudenstein open in his replies and had no reason to doubt his account. He added: (Ex 1, report 13.5.04, p 3) “The commonest cause of irritability is not organic brain damage but a transient psychological reaction to whatever are the frustrations of the time. In his history he clearly attributed these to the limitations his physical condition placed on his work. This type of reactive irritability is more expressed with those in the family or close to them and generally controlled elsewhere. It is the commonest psychological complaint that I ascertain in persons I assess for ongoing physical pain and limitations. I had no reason to see his frustration other than in this light and this was in fact how he described it. Also as he indicated that this had improved it was unlikely to be due to permanent brain damage.” (emphasis added)

Professor Kennett reviewed Mr Freudenstein on 25 October 2008, that is seven and a half years after the accident. The history he took included the following: (Ex A, annex E2, report p 11) “8.8 In 2008 Douglas Freudenstein presented as a more stable individual and appeared to have less extreme mood swings and he reported a happier home environment, with his daughter Kirsten, until recently, living in the apartment adjacent to her parents’ apartment. 8.9 Kirsten has recently moved back to live with her parents who have relocated to a larger apartment in the same street but at the opposite end of the street. 8.10 Douglas added that because of his employment he infrequently or rarely goes to the hotel in the evenings; he prefers to go to the hotel in the mornings and reads the paper and may have one or two drinks prior to lunch. 8.11 Douglas seemed more coherent and better adjusted to his circumstances.” (emphasis added)

He was still, on occasions, verbally aggressive and reluctant to “talk about his on-going injuries” (Ex A, annex E2, report p 12). The defendants arranged for Mr Freudenstein to see Dr James Maguire, psychiatrist, on 11 August 2009. Dr Maguire’s report included the following: (Ex 1, report 11.8.09, p 4) “When I asked Mr Freudenstein how his injury had affected him mentally or emotionally he said – ‘I knew I couldn’t do what I wanted [his job] ... I don’t think I changed ... I drank more ... they said I became more angry ... I was frustrated because I couldn’t do what I wanted to do ... it’s good now ... I’ve got a job I like and the pay is good and I have got great hours.’ ” (emphasis added)

Dr Maguire reported no ongoing psychological or emotional problems (Ex 1, report 11.8.09, p 12).

Let me turn to the evidence given during the trial. Evidence of the plaintiff and his family.

The plaintiff, in the course of his examination, was asked the following questions concerning the psychological impact of pain and reduced capacity upon his life: (T 60) “Q ... Did you notice anything about yourself psychologically in the period after the fall that was different from how you perceived you were before it? A. I get angrier, more aggressive and when my back is hurting I don't want to talk to any one. I want to be left alone. Q. When you say angrier and more aggressive, how did that increased anger and aggression play out in your daily life after the fall? A. My wife finally left me. Q. What sort of things were you doing that you had not done before the accident? A. Arguing a lot, turning small talks into arguments. Q. You say that this comes in your estimation of it from the increased back pain. How often do you experience these back pains. Is it consistently fluctuating? A. It's fluctuating but it's nearly every day but at different levels. Q. Are there any other feelings mentally that you have experienced or you perceive you may experience changes in; emotional matters? A. No.”

Mr Freudenstein was cross examined to suggest that he had been argumentative before the accident. Indeed, it was put to him that he had been barred from a number of hotels (T 81). The plaintiff agreed that he had been barred on one occasion, but for fighting (T 81). It was only after the accident that complaints had been made that he was verbally aggressive to staff (T 81). It was put to him that he had had arguments with a number of his employers before the accident, at Narrabeen High Performance and Holten Spares. Whilst he acknowledged arguments, the rights and wrongs of each argument were not explored. It is difficult to give much weight to that material.

Mr Freudenstein gave the following evidence: (T 54/5) “Q. And insofar as you noticing your back pain these days-- A. Yes. Q. --is it better now than it was after the fall? A. No. Q. Is it the same or is it worse? How would you describe it? A. Probably getting worse, because I'm eating more and more Panadol. It's going on, but they seem to work, so I just keep taking them. Q. They work in what sense? A. Stop the pain. Q. How many Panadol are you taking? A. One to two packs a week. Q. How many are there in a pack? A. Twenty-four. Sometimes you can only get eight, so that varies, depends where you stop and get them. Q. So how many? A. If it was two packs of 24.”

He said that he had not seen doctors or pursued therapy because of the cost (T 55). Michelle Freudenstein, the plaintiff’s wife, gave evidence that she met the plaintiff when she was 16. Her first husband, Stephen Brown, was the plaintiff’s friend and they established a business together, Narrabeen High Performance (supra [145]). She later divorced Stephen Brown. She stayed in touch with the plaintiff and they married in 1990. She described Mr Freudenstein in the years before the accident (15 April 2001) in these terms: (T 148) “A. (He) was a loving husband, loving father to my daughter, or our daughter. He felt that Kirsten was his own, so he did everything for her. He was always a hard worker, always went to work. Yes, generally just a normal family.”

After the accident, and his resumption of work, he would come home and complain about back and shoulder pain (T 152). She said this: (T 153) “A. He would sometimes go to the hotel before he came home. He would drink beer but I noticed that as the days went on or the weeks went on he was very, very moody. He wouldn't speak, I would be lucky to get hello from him, and he would just go - he gets very, very angry with me over, for no reason. Q. In terms of those three things you have just mentioned, moody, angry and non-communicative were they features of his presentation to you as his wife at all before this accident? A. No, no, as I said, you know, if he had a bad day at work he might be in a bit of a bad mood but that was just the way it was. But he was never angry, really, really angry and it was frightening.”

She added: (T 153) “Q. What about relations with his daughter that you observed after the accident, anything to say about those? A. He has always been very, very close to Kirsten. He would do anything for her. The teenage years were very, very hard. He was probably a bit more lenient with her than myself, but he would get angry with her but not as much as with me. He was always a loving father to her.”

When he sat on the lounge, she noticed that it was obviously very hard for him to get off. As to his complaints after a day’s work, her evidence was as follows: (T 154) “A. With his back, with his back. When he went to work and as I said when he came home he would obviously have been in pain. Q. When you say obviously, what gives you to say that? A. If he was sitting on the lounge and he went to get up, it was very, very hard for him to get off the lounge on to his feet. Then he would take the Panadols or the Nurofen or whatever was available, so yeah, he was doing it tough. Q. And apart from what you noticed did he make specific complaint about those areas of his body that you have referred to? A. Yes he did. Q. What sort of things would he say? A. Well he would say 'oh my back's killing me and I can't move.'”

Mrs Freudenstein said that the complaints continued after her husband left John Cross and began working for United Resource Management. She said: (T 154) “Q. What sort of things does he say about his back of recent times? A. The same sort of thing, he said 'my back's killing me' and I would say 'well do you want some tablets' and he would say yes, so I would get him the tablets. He would lie on the lounge, he would fall asleep generally on the lounge. I would be sitting on another chair when he would wake up, he would say to me, he would try and get up and I would say to him 'are you alright', and he said 'no, my back's killing me' and then walk off to bed.”

Later in her evidence, Mrs Freudenstein said this: (T 155) “HIS HONOUR Q. You can give your recent observations of him physically, what have you noticed in terms of his movements, his capacity to do things? A. It seems to be getting harder. Even though he does get up and he will go to work, it just seems to be getting harder and harder and harder for him.”

When cross examined, Mrs Freudenstein acknowledged that she had taken out an AVO against her husband after the accident in 2006 (T 155). Indeed, in 1999, that is before the accident, he had been angry and violent. Alcohol, she acknowledged, fuelled his difficulties (T 156). Counsel for the defendants put the following: (T 156) “Q. And when he gets moody is that also an occasion when you notice he is in pain? A. When he is in pain, when he is tired. Q. And when he gets angry apart from those occasions when it is just alcohol fuelled, do you believe that pain might be driving that as well? A. Yes, I do.”

The plaintiff’s daughter, Kirsten Brown, said that she was 12 years old when the accident occurred (T 157). She said that the plaintiff was “always there for me” and that they did a lot together (T 157). She gave the following evidence: (T 157/8) “Q. Did you notice any changes to your father after the accident physically? A. Yes, his movement wasn't as good as it used to be. Q. In what regard? A. He would always sort of have problems with his back, like he could never - if I wanted him to pick me up or we would go out and do certain things together, his movement was very limited with his arm and his back. Q. What sort of things are you talking about there? A. We used to go swimming together, we used to go and play sports together, we used to do a lot of things together. Q. Did those enjoyable father/daughter occasions continue after the accident or reduce? A. They reduced quite a lot, I didn't do much with him after that.”

She added: (T 158) “Q. Did he make complaint about his back and any other part of his body after the accident to you? A. In certain sort of circumstances when we would be at home he would come home from his day, he would sort of whinge that he was in pain with his back, you know? When he would sit down on the couch and things like that he would always find it hard to get back up off the couch and do certain things around the house.”

Kirsten was then asked about the emotional impact of the injuries which he had sustained. She said: (T 159) “Q. Can I just ask you, we have dealt with the physical side of things. What have you noticed about him psychologically? As his daughter, what have you noticed about any changes to him since the time of this accident? A. He has become a very angry person. He gets quite aggressive and takes his anger out on me and mum a bit. He can't control himself very much. Q. Did he have from time to time anger problems before the accident? A. Yes, but not bad, like if he got angry at me he would kind of just yell at me and that would be it, it would be over. But as the years have gone on he has gotten a lot worse.” Evaluation: disabilities.

A number of doctors commented upon the absence of exaggeration in the plaintiff’s description of his complaints. Dr Bodel, orthopaedic surgeon (qualified by the defendants), saw Mr Freudenstein in October 2002, that is 18 months after the accident (supra [197]). Having recorded his complaints, he said: “The patient’s complaints are quite genuine.” (supra [199]). Dr Brown, psychiatrist, saw Mr Freudenstein a year later, again on behalf of the defendants, and said that he “found no reason to suspect Mr Freudenstein was exaggerating his symptoms” (supra [255]). Dr Maguire, psychologist, qualified by the defendants, said in August 2005 that Mr Freudenstein “provided a straight forward account” (Ex 1, report 11.8.09, p 6). Professor Spira, neurologist, also qualified by the defendants, saw the plaintiff in April 2009. He made the following comment: (supra [225]) “He provided his history clearly and with no element of dramatisation.”

That observation coincided with my own impression. Indeed, it was apparent that, on occasions, Mr Freudenstein understated his complaints. Professor Kennett included the following in the history, which is instructive: (supra [258]) “He seems to forget his injuries and will initially say ‘I’m all right’ but when asked about specifics like his back, neck, shoulder he admits they are not very good.”

I accept the plaintiff’s account of the pain and limitations he has experienced. He was cross examined in advance of the video as to activities that were within his capacity. Nothing in the video that followed contradicted his description of what he could or could not do. Further, it will be remembered that he suffered a head injury. Indeed, I believe it likely that he lost consciousness for a short time. Yet, to his credit, he has consistently said that he had noticed no intellectual impairment (Ex A; Ex 1). Indeed, he stated to Dr Brown, psychiatrist, in October 2003, that he did not believe he had any psychiatric or psychological problems (supra [254]). Aside from anger and irritability, which had manifested in the context of pain, he asserted no other psychological ill effects. His evidence included the following: (T 60) “Q. Are there any other feelings mentally that you have experienced or you perceive you may experience changes in; emotional matters? A. No. Q. What about your memory since this accident. Has there been any change? A. I don’t think so. I’ve sort of got a pretty good memory.”

Mr Freudenstein had an impressive work history before the accident. But, more than that, given his disabilities, his work record after the accident was remarkable. In nine years, as the defendants pointed out, he has had three weeks off work. That says more about him, I believe, than the level of his disabilities. It is clear, on the evidence, that he has worked, notwithstanding pain. I accept his evidence that, after doing the sort of work depicted in the investigation DVD (Exhibits 2 and 3), he would have experienced pain. He performed that work because that was what he was employed to do (supra [182]). John Cross, his employer, described him as “a man’s man”, who would do the job and hurt later (supra [183]). He added: (T 97) “A ... He was sent with his offsider to pick up carpet and the offsider was there to pick up carpet. If there was an underlay or something he would pick up that and throw that on. But he is not that type of bloke, he is head down bum up. He is not a bludger. ...” (emphasis added)

What, then, were the plaintiff’s injuries and what is the level of disability? One of the difficulties each doctor faced was that no real investigation was undertaken in the early stages. Mr Freudenstein simply carried on, performing light duties, relying upon non prescription analgesics and alcohol to deal with the pain. Dr Fine, neurologist, recommended in December 2002, nerve conduction studies in respect to the shoulder (supra [214]). Dr Mahony, orthopaedic surgeon, recommended in April 2003 a CT or MRI of both the shoulder and the back, quite apart from physiotherapy. Dr Milder, neurologist, in August 2003, repeated the recommendation for an MRI. Yet none of these recommendations was taken up.

An MRI was eventually undertaken on 15 January 2009 (almost eight years after the accident) and revealed a disc protrusion at L4/L5, as well as a right paracentral protrusion at L5/S1, quite apart from other defects (supra [221]). Dr Milder was prepared to say, as a matter of probability, that these changes were related to the fall, rather than repeated microtrauma arising from heavy work (supra [232]). It should be noted that, in his first consultation in August 2003, Dr Milder stated the following, having set out the history and clinical findings: (supra [217]) “ ... The possibilities of an annular tear and/or protrusion of a lumbar invertebral disc(s) are suggested.”

That was a comment made almost five years before the MRI in January 2009, which revealed disc protrusions. Professor Spira, however, did not feel that he had evidence that the changes were due to the fall (supra [234]). He, nonetheless, acknowledged that particular disc protrusion usually occurs at times of strain or impact (supra [233]). Dr Mahony, orthopaedic surgeon, saw the MRI in January 2009. He noted the “disco-genic lesions at the L4/5 and lumbosacral levels with possible right L5 nerve root irritation” (supra [205]). He stated his view that it was probable that the fall had produced such lesions (supra [206]).

I accept the opinions of Dr Milder and Dr Mahony and prefer their evidence on this aspect to Professor Spira.

However, the changes revealed by the MRI do not furnish a complete diagnosis for Mr Freudenstein’s back difficulties. It was common ground that there were no radicular symptoms, that is, pain in the legs. Rather, there was diffuse pain in the back, spreading to the buttocks upon prolonged sitting, with stiffness and difficulty in bending and lifting. Actions such as getting out of the truck cabin (supra [191]) or getting off the lounge (supra [276]) were difficult, or often difficult. Dr Milder, neurologist, and Doctors Bodel and Mahony (orthopaedic surgeons) believed there had also been soft tissue and ligamentous injuries. Professor Spira suggested musculo-ligamentous strain was the most likely cause of pain, recommending further investigation, possibly with bone scanning, which has not been undertaken (supra [228]). Alternatively, he suggested that the pain could be due to tension myalgia (supra [235]).

Whatever the cause, I am satisfied that Mr Freudenstein suffers from disabling back pain, which is frequently present and now chronic. It has been going on for so long that it is less amenable to treatment (cf supra [235]). I accept the evidence of the plaintiff’s wife and daughter, who both appeared to be straightforward witnesses, and their description of the considerable difficulties which the plaintiff has experienced since the accident. The pain does fluctuate and is more disabling at some times than at others, but I accept that it is “probably getting worse” as the plaintiff suggested (supra [267]). Mrs Freudenstein said much the same thing. Indeed, it is convenient to repeat part of her evidence: (T 155) “HIS HONOUR Q. You can give your recent observations of him physically, what have you noticed in terms of his movements, his capacity to do things? A. It seems to be getting harder. Even though he does get up and he will go to work, it just seems to be getting harder and harder and harder for him.”

Let me move from the back pain to the left shoulder. Mr Freudenstein was examined by Dr Bodel, for the defendant, in October 2002. Dr Bodel found generalised wasting of the left shoulder, restriction of movement and weakness as well as “some subacromial impingement” (supra [197]). He thought he had a soft tissue injury, although he acknowledged he may have a rotator cuff pathology (supra [199]). Dr Bodel thought the plaintiff’s complaints were quite genuine (supra [199]). He found a 12% permanent impairment (supra [200]).

Dr Fine, on 9 December 2002, could find no explanation for the restriction of movement of the left shoulder on examination, and recommended nerve conduction studies, which were never undertaken.

Dr Mahony, in April 2003, said Mr Freudenstein had “a capsulitis of his left shoulder, and a rotator cuff lesion could not be excluded” (supra [201]). He found a 15% impairment of the left upper limb. Having seen Mr Freudenstein again in late 2008, Dr Mahony reiterated that view (supra [205], [207]). Dr Bodel’s opinion on the left shoulder in April 2009 included these words: (supra [209]) “He also has pain and stiffness in the region of the left shoulder and pushing, pulling or lifting or use of the left arm overhead aggravates the pain.”

Professor Spira reported on the left shoulder on 22 April 2009 in these terms: (supra [227]) “The left shoulder trauma appears to have resulted in some joint dysfunction as there is palpable crepitus present. I did not see radiographs of the shoulder and in any case believe that this aspect should be assessed by either a rheumatologist or orthopaedic surgeon as recommended by Dr Milder.”

When the plaintiff was asked about the left shoulder, he said this: (T 71) “Q. You also described difficulties of lifting your shoulder above your head, your hand above your head? A. Sometimes. Q. Does that make it worse when you have to exert yourself; in other words, lifting things up? A. It's more painful, yes. Q. Pressure on it? A. More painful, yes. Q. You are not saying it stops you from doing anything? A. Some days, I can't. Other days, I can get it above my head.”

The film taken by the investigators on 28 January 2004 certainly depicted the plaintiff with his left arm periodically raised above shoulder level in a relatively short sequence. The plaintiff later said that that movement would be accompanied by pain (supra [182]). I accept that there has been some improvement to the left shoulder. The earlier wasting noted by Dr Bodel appears to have gone. Nonetheless, crepitus and the other matters noted by Professor Spira remain and I accept that it is still disabling.

Moving to the psychological impact upon the plaintiff of his pain and disablement, Mr Freudenstein was, I believe, rather less reliable on this aspect than the observations of his wife and daughter. For instance, he told Dr Brown in October 2007 (more than two years after the accident) that he was angry and irritable at home for about six months after the fall, and that he no longer had “this problem” (supra [253]). However, it is plain from accounts he gave periodically to other doctors, and the observations of his family, that the symptoms persisted and, indeed, are still present. No doubt they were more severe in the first six months. But they are an accompaniment of pain and frustration and it is evident that both have been present, to a greater or lesser extent, throughout. The psychological impact upon the plaintiff was described as “reactive irritability” by Dr Brown, who said this: (supra [260]) “It is the commonest psychological complaint that I ascertain in persons I assess for ongoing physical pain and limitations.”

The evidence given by Mrs Freudenstein and her daughter, Kirsten, about the crankiness and irritability of the plaintiff and the way in which it has intruded upon their lives and their relationships, demonstrates that the plaintiff does still have that problem.

What amount should be awarded for the combined effect of these disabilities, in the context of “a most extreme case”? Mr Freudenstein is not an intellectual. He does not live in his head. He is a very physical man who enjoyed robust health and heavy work before the accident. He is now clearly disabled and suffers a deal of pain, although it fluctuates. It is to his credit that he has not given himself to that pain, but continued to work. The effort has plainly taken a toll on him, his family and his relationships with his family. His disabilities are pervasive, affecting many aspects of his life and leisure.

The submission made by the plaintiff (31% to 33% disability) I believe, was conservative. To my mind, the appropriate level of disability is 33% of a most extreme case ($473,500), being $156,255. Evaluation: loss of earning capacity.

There is a marked contrast between the plaintiff’s capacity for work before the accident and his capacity now. Before the accident he was a qualified mechanic who performed that work from time to time. It was an important string to his bow. It required heavy lifting, prolonged bending and work in awkward and confined spaces (supra [193]). He also worked in the related industries of tyre fitting and car wrecking. At the time of the accident, he was working as a floor sander which was likewise heavy work. He performed the work of a mechanic and a floor sander without difficulty. He now says that he is incapable of doing such work (supra [193]). On his own assessment, he is confined to the sort of work he is now performing with United Resources Management as a garbage collector (that is, work not involving lifting or excessive bending).

The medical evidence, with one exception, supports Mr Freudenstein’s own assessment of his working capacity. Doctors Mahony and Bodel, orthopaedic surgeons, and Dr Milder, neurologist, said that Mr Freudenstein should avoid heavy work, involving heavy lifting and bending. Dr Milder, having been provided with a description of his pre-injury work, expressed the view that he was 60% to 70% incapacitated for such work (supra [243]). Whilst Professor Spira, neurologist, described that assessment as “ludicrous” (supra [246]), it is not entirely clear that he understood that Dr Milder was speaking of incapacity for heavy work, rather than work generally. Professor Spira himself, in his report, concluded by saying these words: (supra [229]) “Despite his back and shoulder pains Mr Freudenstein continues to participate in physically demanding work as a garbage collector. He may well benefit from seeking work involving less effort . ”

Professor Spira was subsequently shown the DVD (Exhibits 2 and 3) depicting Mr Freudenstein working. He then expressed the view that Mr Freudenstein had “unrestricted capacity” (supra [242]). He later moderated that view by acknowledging that he was incapable of performing work with the heavy sanding machine (supra [248]). He explained what he meant by “capacity”. Incapacity did not equate with pain (supra [248]). He was not denying that certain forms of work would cause Mr Freudenstein suffering (supra [248]). The plaintiff, nonetheless, could do that work, albeit with suffering.

I prefer the evidence of Dr Milder and the orthopaedic surgeons. I believe Professor Spira placed altogether too much weight upon the investigation film. The film contained fragments, usually short, some of them separated by hours. There was no evidence as to what happened in between. But one does know from Mr Freudenstein’s evidence, which I accept, that such activity induced pain, which he simply put up with because he believed that he was obliged to do the job. As demonstrated by the evidence of his family members, where they described how he presented at the end of each working day, he has paid a heavy price for the work he has performed. It is not reasonable, in my view, to expect a stoicism beyond that which he has already exhibited (cf Dr Milder, supra [247]). Indeed, as I have already said, his work record since the accident is remarkable. After three weeks off, he has worked continuously. He makes no claim, to this point, of a continuing wage loss. I accept him as a person who has done his very best.

I further accept that he is now incapable of performing work as a mechanic, or the work he used to perform in related industries. He has lost that string to his bow. He also can no longer perform heavy sanding work. Indeed, I accept the medical opinions, that he should not perform heavy lifting or excessive bending.

Mr Freudenstein, again through his own efforts, secured work with United Resources Management as a garbage collector, which he is able to do. He earns $950 per week net, although it should be noted that he is a permanent casual, not an employee. To earn that money, he is required to work six days a week, including Sunday. He has no right to holidays or sick pay. No reference was made to superannuation. As stated, no claim is made in the nature of a wage difference between his pre-injury earnings and his present situation.

Nonetheless, plainly there has been a significant loss of earning capacity. What, then, is his future? Mr Freudenstein stated that he can perform his work as a garbage collector without difficulty, apart from some pain and stiffness occasionally getting in and out of the truck (supra [191]). His job, nonetheless, as Professor Spira remarked, is very physical. It involves a lot of walking and pulling bins across grass, most of which is flat (supra [190]). Mr Freudenstein said that he intended to continue that work until retirement (supra [193]). It is convenient to repeat his answers in cross examination: (T 87) (supra [194]) “Q. And you imagine you will keep going with this work until you retire? A. If I can, yes. Q. And there is nothing from your employer or otherwise to suggest that you wouldn't be able to? A. No.”

Looking ahead, there are a number of imponderables. Mr Freudenstein clearly has a job that suits him and it is likely that he will continue as long as he can. However, things may obviously happen that may throw him back on the open labour market, where his reduced earning capacity is likely to present him with difficulty in finding a suitable job. His company may lose the garbage collection contract. It may introduce a different system, so that collectors are required (as they are in many suburbs) to lift or bend. Or he may fall out with his employer, and find himself out of a job. He may become ill for unrelated reasons, and by the time he recovers there may be no position for him. Effectively, he now only has one string to his bow, light work not involving excessive bending or lifting. He does have the advantage of a very positive attitude.

But, assuming all goes well and he remains with his present employer, is he likely to become more disabled as he grows older? He is now 47 years old. He has, on his own reckoning, about 20 years of wage earning life left. His back is likely to get worse. Dr Milder noted “a predisposition towards the accelerated development of lumbar spondylosis has resulted” from the fall (supra [223]). He has, according to the MRI, disc protrusions and other defects in his spine, where physical effort is likely to take its toll. Dr Milder said this: (supra [236]) A. There are patients with intervertebral disc protrusions who do all manner of things because they have to. They can do it. It's not that they can't do it but they experience discomfort and so I don't think it's because you have an intervertebral disc protrusion means that you can't do such a thing but you do it with a degree of discomfort and you put stresses on the spine. You feel the effects immediately and in the longer term you almost certainly have a greater rate of progression .” (emphasis added)

In the nine years since the accident, Mr Freudenstein has already noticed that his pain is getting worse (supra [267]). I repeat the observation of his wife, which suggests that it is most unlikely that he will be able to perform at his present level until retirement in 20 years: (supra [273]) “Q. You can give your recent observations of him physically, what have you noticed in terms of his movements, his capacity to do things? A. It seems to be getting harder. Even though he does get up and he will go to work, it just seems to be getting harder and harder and harder for him.”

I therefore believe it is likely that his working life will be cut short. It is obviously difficult to say by how much, although I believe it is not unreasonable to infer that, conservatively, he is likely to retire at least two years ahead of the time he would otherwise have retired.

In summary, he has lost earning capacity in the sense of jobs that he is no longer able to perform, including that of a mechanic, and his wage earning life is likely to be shorter than it would have been, but for the accident. What, then, is an appropriate sum for loss of earning capacity, taking account of vicissitudes (15%) and the fact that his loss by early retirement is a loss deferred (which must be discounted at 5%)?

The submissions by the parties on the issue were vastly different. Counsel for the plaintiff drew attention to the evidence of Dr Milder and his comments upon the plaintiff’s likely future, in terms of his back. Dr Milder stated that the level of his disability for heavy work of the sort he used to perform is about 60% to 70% at present (supra [243]), but likely to increase to 70% to 80% in the next decade, as his back deteriorates. Dr Milder said this: (T 167) “Q. So I understand this, you say currently you regard there is a reduction in his physical abilities to perform the work described in the order of 60 to 70 percent? A. Yes. Q. And in 10 years you'd anticipate it would be 70 to 80 percent? A. Yes, but I'd have to say as a clinician were I to advise him on the basis of the whole story and the radiologic findings I would advise him against doing any heavy mechanical work at this time. But that may not be relevant but as a clinician that's what one would say to such a person.”

Counsel suggested that, using Mr Freudenstein’s current wage of $950 per week net, a 30% reduction in earning capacity for the next ten years (age 47 to 57 years) amounts to $285 per week. For the last ten years of his working life (age 57 to 67 years) a 40% reduction will amount to $380 per week. Using the 5% discount tables (deferred in respect of the later loss) and allowing 15% for vicissitudes, the appropriate award for this item, according to the plaintiff, is $181,916.

The defendants’ position was that nothing should be allowed. There was no loss of earning capacity. The defendants said this: (DS [54]) “54. The defendant submits that the plaintiff has not made out a case for a diminution in earning capacity, nor is there any sound foundation for calculating such loss. Whilst this is not definitive of the plaintiff’s loss, and indeed this court can make a finding of economic incapacity if it is thought fit so to do, the defendant says that it is not an appropriate case in which to award a cushion or buffer in this context. The plaintiff is clearly earning a substantial income of $950 per week net and no evidence is sought to be adduced by the plaintiff to suggest that he would do any better working as a mechanic or indeed in any of the other occupations he had previously followed. This is assuming, of course, it is accepted that he could no longer engage in those occupations.”

I find neither submission attractive nor persuasive. The plaintiff, for the last nine years and at the present time, has been receiving no less than he would have earned had he not been injured. I accept that there has been a loss of earning capacity and a probable shortening of his wage earning life. But that does not equate to a weekly loss. I believe it is unrealistic to approach his loss upon that basis. Certainly, it is helpful to calculate the deferred loss of the likely shortening of the plaintiff’s wage earning life. Such a calculation will provide some guidance. Using the deferred discount rate of 5% for the final two years of his working life, the appropriate discount figures (were he to work to the age of 67) are 0.396 and 0.377. However, the plaintiff would not necessarily have worked until the age of 67, although that is becoming the norm. He may have retired earlier. For that reason, I prefer to approach the matter on the basis of a foreshortening of his wage earning life by, say, two years. Were he to retire earlier, then a different discount rate would apply. So the figures are only a guide. On my calculations, using the deferred rates and making the assumption of 67 years as the retirement date, and allowing 15% for vicissitudes, the loss would be of the order of about $31,000 (using a net weekly wage of $950.00).

Taking both aspects of the plaintiff’s loss into account (a loss of capacity and the foreshortening of working life), I believe it is reasonable to allow $65,000 for this aspect. Past loss of wages.

Loss of wages was agreed at $650 per week for three weeks, being $1,950. Past medical expenses.

The only claim made on behalf of the plaintiff in respect of past medical expenses is for non prescription analgesics which he purchased from time to time from chemists (Panadol, Nurofen and Panadeine Forte). The sum of $15 per week is claimed. No submission was made by the defendants on the issue. The claim is modest and, I believe, reasonable. The sum of $7,200 should be allowed for this item. Future medical expenses.

As mentioned previously, the plaintiff’s complaints have never been properly investigated medically, apart from the MRI undertaken in January 2009. Various doctors at different stages have suggested particular investigations that ought to be undertaken to elucidate his problems. The plaintiff has not pursued such matters, nor indeed any therapy (whether physiotherapy or hydrotherapy) because of the expense. Dr Graham Mahony (who was not called and whose reports were tendered by consent) furnished a report in April 2003 which was in these terms: (Ex A, annex A6, report 29.4.03) “I would assess the approximate cost of further investigation to be as follows: Magnetic Resonance Imaging of Left Shoulder & Lumbosacral Spine: $3,200 X-rays & Ultrasound of Left Shoulder: $500 CT Scan of Lumbosacral Spine: $500 General Practitioner & Specialist Consultations: $1,500 Physiotherapy: $3,000 Hydrotherapy: $3,000 TOTAL $11,700

Dr Mahony furnished a further report in January 2009 (having seen the MRI) which was as follows: (Ex A, annex A2, report 22.1.09) “I would assess the approximate cost of further investigation to be as follows: General Practitioner & Specialist Consultations: $5,000 Physiotherapy: $6,000 Hydrotherapy: $6,000 TOTAL $17,000

The reports are certainly broad brush. The issue was not pursued with the doctors who were called to give evidence. On such spare material there are obvious difficulties in making any realistic determination. I think it likely that, whatever else happens, Mr Freudenstein will continue the habit of nine years of taking non prescription analgesic pain relief. Some allowance should be made for that, using his life expectancy of 38.26 years (ABS, published 30/09/09) (cf Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498). He is likely to continue to suffer pain, even when he ceases to work (902.0 x $15.00 = $13,530).

I also believe it is reasonable that some allowance be made for further investigation of his problems, including his left shoulder. It is reasonable that an allowance be made for periodically seeking the assistance of his general practitioner and occasionally a specialist. It is also reasonable that he should have physiotherapy and hydrotherapy to determine whether they help and, if they do, that some amount be allowed for that contingency. Adopting the same broad brush approach as the parties, I believe that the allowance for future analgesics and therapy should be $25,000. Award of damages.

The plaintiff’s award of damages should therefore include the following: General damages $156,255 Loss of earning capacity $65,000 Past loss of wages $1,950 Past medical expenses $7,200 Future medical expenses $25,000 TOTAL $255,405

The slip rule applies.

That award is to be reduced by 50% for contributory negligence. The plaintiff should receive interest to be agreed or, in the absence of agreement, brought back to me for further order. Orders.

I therefore make the following orders: 1. There should be a verdict for the plaintiff in the sum of $127,703, plus interest to be agreed or assessed. 2. The defendants to pay the plaintiff’s costs.