Farmer v Broadspectrum (Australia) Pty Ltd (No.2)

1. [1]

   On 6 November 2016, the plaintiff, Mr William Farmer, was injured when he fell down a flight of stairs at a staff accommodation block at the Regional Processing Centre situated on Nauru (the “RPC”). The RPC was managed, on behalf of the Commonwealth of Australia by the first defendant, Broadspectrum (Australia) Pty Ltd (“Broadspectrum”). At the time, the plaintiff was employed to work at the RPC by the second defendant, Wilson Security Pty Ltd (“Wilson Security”), as a Safety and Security Consultant.

2. [2]

   The plaintiff brings these proceedings against the two defendants, claiming damages for his personal injury.

3. [3]

   In the Amended Statement of Claim, the plaintiff pleads that his claim is to be determined in accordance with the substantive law of the Republic of Nauru (“Nauru”). He pleads his claim as a common law claim for damages for negligence or breach of contract.

Overview

1. [4]

   As against Broadspectrum, the plaintiff pleads that it provided management services pursuant to a contract with the Commonwealth of Australia which included the management of Block E at the RPC on Nauru. He pleads that Broadspectrum was responsible for inspecting, maintaining, and performing repair works at the premises. He alleges that Broadspectrum was negligent because it wrongfully permitted the “non-slip strip” on the edge of the top step to be absent from the generally U-shaped aluminium or metal frame (“U frame”), and failed to ensure that the premises, including the staircase, were inspected at reasonable intervals so as to ensure that the steps were safe. The plaintiff submitted that the steps were not safe because of the absence of the non-slip strip ordinarily inserted into the U frame at the top of the steps.

2. [5]

   As against Wilson Security, the plaintiff pleads that it was his employer and that it also had an obligation to manage and maintain the accommodation buildings in which its employees were housed. He claims that Wilson Security failed to provide him with a safe workplace, including the Block E accommodation.

3. [6]

   The plaintiff’s claim against both defendants arises in two factual respects. First, that the non-slip tread, traditionally coloured yellow, and which ought to have been at the top of the step, was not there, but what was there was the U frame, into which the non-slip strip would ordinarily be inserted. The absence of the non-slip strip thereby posed a safety hazard for people approaching the steps in order to walk down them.

4. [7]

   Secondly, he alleges that the lighting in that area was inadequate because of the absence of any overhead lights in circumstances where the wall-mounted lights were not sufficiently powerful to illuminate the area or avoid shadows.

5. [8]

   In its Defence to the Amended Statement of Claim, Broadspectrum denied any liability to the plaintiff at all. It denied that it owed any duty of care to the plaintiff; it denied that the plaintiff had fallen downstairs in the premises on Nauru although, curiously, it admitted that he had suffered an injury on 6 November 2016. As well, it pleaded that the plaintiff was guilty of contributory negligence.

6. [9]

   Wilson Security admitted that it held a contract with Broadspectrum. It denied that the plaintiff had had a fall at all as he had pleaded, and it denied that it was negligent. It too pleaded that if found liable, the plaintiff was contributorily negligent.

7. [10]

   Although these stances were taken on the pleadings, ultimately, by the time the case was opened and the evidence had been completed, the positions of the two defendants had significantly changed.

8. [11]

   Broadspectrum conceded that it owed the plaintiff a duty which was to take reasonable care to avoid reasonably foreseeable risk of injury to people on the premises arising from the physical state of the property. It accepted that the plaintiff had sustained a fall and it did not dispute that the non-slip strip was not in place at the time. However, it submitted that the injury was not reasonably foreseeable, that the risk ought to be regarded as insignificant and that, on the whole of the evidence, the defective non-slip tread was not the cause of the plaintiff’s accident.

9. [12]

   It also denied any breach of duty because as it was not the plaintiff’s employer, it had acted reasonably by:

10. [13]

    Broadspectrum contended that the plaintiff had been contributorily negligent because he should have put his hand on the handrail as he was approaching the top step and before taking his first step. It submitted that an appropriate percentage of responsibility for the plaintiff was 15%.

11. [14]

    Wilson Security, in its final submissions, accepted that the plaintiff had had a fall, but denied being in any way negligent. It accepted that it owed a duty of care to the plaintiff but submitted that that duty was one which required no more of them than to take reasonable care for his safety. Wilson Security submitted that it had discharged its duty by having in place a reasonable system of inspection of the premises.

12. [15]

    Although there was a cross-claim filed by Broadspectrum against Wilson Security, by the time the hearing had concluded the two defendants had reached an accommodation between themselves with respect to the cross‑claim. For that reason, the Court is not required to deal with the matters raised on the cross-claim including any question of indemnity or contribution.

13. [16]

    Accordingly, the issues which fall for determination are:

    1. (1)

       what was proved in the evidence to be the cause of the plaintiff’s fall;

    2. (2)

       were either Broadspectrum or Wilson Security (or both) in breach of their duty of care to the plaintiff;

    3. (3)

       was the plaintiff guilty of contributory negligence;

    4. (4)

       what injuries did the plaintiff in fact suffer in the fall; and

    5. (5)

       what sum of damages would the plaintiff be entitled.

14. [17]

    In this case, the incident occurred in the Republic of Nauru. The plaintiff and the defendants agreed that the substantive law applicable for the purposes of this case is that of the Republic of Nauru. The parties agreed that no Australian statute applied to this case.

15. [18]

    Nevertheless, with respect to claims in damages for personal injury, no party sought to identify any relevant difference between the law of Nauru and the common law of Australia, save for the issue of damages for gratuitous domestic assistance, to which I will shortly turn. Accordingly, the hearing proceeded, and I proceed, as if the common law of Australia applies to this case.

16. [19]

    Mr Peter Macsporran, called by Broadspectrum, gave expert evidence as to the law in the Republic of Nauru with respect to claims for damages for personal injury. Mr Macsporran deposed that the heads of damage available to be awarded to a plaintiff in Nauru in a personal injury claim are dictated by the law of England that was in force on 31 January 1968, the date on which Nauru became an independent nation. According to Mr Macsporran, a record of the law of England as at this time can be found in the Third Edition of Halsbury’s Laws of England.

17. [20]

    One of the statutes of England at that time was the Law Reform (Personal Injuries) Act 1948 (UK) which sets out five heads of loss under a heading “Damages”. Damages for gratuitous domestic assistance is not amongst those five heads – a position different from that in the common law of Australia (at least since Griffiths v Kerkemeyer (1977) 139 CLR 161). On that basis, Broadspectrum submitted that there is no basis to find that the law of Nauru contemplates damages for loss of that character.

18. [21]

    However, in cross-examination Mr Macsporran said that it was his belief that a court of Nauru today “would probably lean towards the High Court [of Australia] and the Courts in Australia” in relation to a dispute between two Australian parties on the issue of damages for gratuitous domestic assistance, despite the applicable English statute. Broadspectrum submitted that Mr Macsporran’s remark here should be discounted, given that:

19. [22]

    The plaintiff submitted that the Court ought accept the orally expressed view of Mr Macsporran that a court in Nauru would be likely to lean towards or follow the High Court of Australia and, on that basis, the plaintiff submitted that this Court ought to assess damages in favour of the plaintiff which included an allowance for gratuitous domestic assistance.

20. [23]

    I am not disposed to uphold the plaintiff’s submissions. In my view, the unchallenged opinion of Mr Macsporran is that the law of Nauru does not presently recognise as a head of damage for a plaintiff, any sum representing the value of domestic or personal services provided gratuitously after the plaintiff suffered personal injury. His tentative and predictive opinion about what a Nauru court may do is not a statement of the law as it actually exists.

21. [24]

    I have reached that conclusion for a number of reasons. First, as explained by Mr Macsporran, the starting point for the identification of the applicable law of Nauru are the principles and rules of the common law (and equity) of England as they were on 31 January 1968. It is clear that damages for gratuitous domestic assistance formed no part of the laws of England at that time.

22. [25]

    Secondly, there has been no change to English common law with respect to such a head of damages since 1968 and there has been no statute passed by the Parliament of Nauru permitting such a head of damages to be claimed.

23. [26]

    Thirdly, there has been no decision by the Supreme Court of Nauru which has allowed claims for damages for gratuitous care by way of domestic or personal assistance.

24. [27]

    Fourthly, s 4(4) of the Custom and Adopted Laws Act 1971 (Nauru), which is relevant to a claim for damages for personal injury provides that the principles and rules of the common law may be:

25. [28]

    The effect of this was considered by Eames CJ in Halstead & ors v Batiouk [2011] NRSC 11 at [29]-[31]. There the Court accepted that the effect of s 4(4) meant that in making any award of damages, regard must be had to the economic realities of Nauru and the way of life of the people of Nauru. Having such regard tends against any expansion of claims for damages.

26. [29]

    Fifthly, although Mr Macsporran agreed that decisions of the High Court of Australia would be regarded as influential in considering any developments in the common law of negligence, he unequivocally said in his report that the heads of damages available to be awarded in Nauru which do not include damages for gratuitous domestic assistance were “… unlikely to be extended by the Nauru Court”.

27. [30]

    Sixthly, the oral evidence of Mr Macsporran drawn to attention and relied on by the plaintiff, is to be understood in the context of Mr Macsporran’s written report which makes it clear that to the extent that the decisions of the High Court of Australia were of influential effect, that would be generally with respect to the interpretation of the common law of England.

28. [31]

    In summary, the law of Nauru does not specifically include damages of the kind claimed for gratuitous domestic assistance, because the common law of England does not permit such claims. Mr Macsporran’s reference to the persuasive effect of Australian decisions was one directed to the interpretation and understanding of the English common law and does not extend to a Court making a finding that a head of damages available under the common law of Australia would be allowed by a court of Nauru.

29. [32]

    The plaintiff’s claim for damages for the value of past and future provision of gratuitous domestic assistance fails because of the law of Nauru.

30. [33]

    It is convenient to turn to the background and contextual facts and then to deal with the cause of the plaintiff’s fall.

Facts

1. [34]

   On 6 November 2016, the plaintiff was 28 years old. He is now 35 years old. He was employed by Wilson Security as a Safety and Security Consultant at the RPC. He had commenced that role in September 2016.

2. [35]

   Shortly after his commencement, he went on a previously planned holiday with his wife, which meant that by 6 November 2016, he had only been working at the RPC for about a week.

3. [36]

   By 3 November 2016, he had been assigned to a team on the RPC called “2 Charlie”, meaning that he was to be based at an area called RPC2.

4. [37]

   The plaintiff’s role was fly-in/fly-out, meaning that when he worked, he lived on premises in staff accommodation blocks at the RPC. By 6 November 2016, he was housed at RPC2 in “E Block”. The entry to his room was near the top of a staircase, on the second floor. He had been in that specific room for only a few days. He had been in another room in E Block before then.

5. [38]

   On 6 November 2016, the plaintiff had a shift which was to commence sometime between 4:45am and 6am. The precise start time for his shift that day is uncertain. The plaintiff first said that his shift was due to start at about 5am or 6am, but he later accepted that it could have been as early as 4:45am.

6. [39]

   On that day, the plaintiff woke at around 4:00am. He then showered in the bathroom on the floor below his room. He wore thongs to go to the shower. He returned to his room and continued getting ready for his shift.

7. [40]

   The plaintiff realised that he might have left some juice in the other room in E Block he had previously occupied. He left his room to attempt to retrieve it from the new occupant of that room, a man named Warren. The plaintiff encountered Mr Grahame Alexander, who was at the time occupying a room next to the plaintiff. Mr Alexander advised the plaintiff that Warren was probably in the meal room having breakfast.

8. [41]

   In the few days before his accident occurred, during which time he had been in this room, as he told counsel for Broadspectrum, he had had occasions to use the stairs. He had from time to time used a different set of stairs further away from his room. No doubt it depended on where he was going and for what purpose.

9. [42]

   He had previously used the stairs in question whilst wearing the work boots which had been supplied to him by Wilson Security, and which he was required to wear whilst on duty. He told counsel that he had not had any trouble negotiating the stairs on previous occasions and that he had not noticed any missing non-slip strips when he had previously used those stairs.

10. [43]

    After his conversation with Mr Alexander, the plaintiff returned to his room, and again continued getting ready for his shift. He put on his work uniform which included boots that were issued to him by Wilson Security.

11. [44]

    At around 4:45am, the plaintiff left his room. He did not notice anything on the landing or on the stairs. He observed that the lighting and visibility was poor, with no overhead lighting. The plaintiff approached the stairway near the entrance to his room. He was not holding the handrail. He said that he then tripped, which caused him to fall down the nine to twelve steps. He landed heavily on his back. The possible cause of his trip was the subject of extensive evidence and debate. It will be necessary to return to this issue in detail.

12. [45]

    After he fell, the plaintiff felt a burning sensation and a sharp, throbbing pain in the area between his lower back and his left foot. He went into shock. A number of people immediately came to his aid, including Mr Alexander, Ms Batool Zalazala, Ms Gaylene Leonie, and Mr Paul Williams. All were employees of either Broadspectrum or Wilson Security.

13. [46]

    About five minutes later, a medical team arrived and removed the plaintiff by ambulance to a medical facility on the RPC. He was given a “green whistle” for pain relief. A doctor examined him before he was transferred by ambulance to Nauru Hospital. There, he underwent scans. He then returned to the employee medical facility and remained there for the day.

14. [47]

    As I have previously said, the cause of the plaintiff’s fall is a central issue in this case. It was the subject of extensive evidence and submissions.

15. [48]

    As the photographs, which were taken a short time after the plaintiff’s fall, show the staircase consisted of two flights of stairs separated by a mezzanine platform. There were nine steps to the platform and then a further flight of stairs of about the same number.

16. [49]

    On the day in question, the floor of the corridor leading up to the stairs consisted of concrete. The steps themselves consisted of timber, as did the mezzanine level. On the edge of the concrete landing, at the top of the first flight of stairs, and at the edge of each of the steps down to the mezzanine level, there was a non‑slip tread of a commonly seen kind installed. That non-slip tread had two components: an aluminium frame generally of a “U” shape, and a non-slip strip. The frame comprised a flat bottom component which was attached to the concrete platform or wooden step (as the case may be). That flat component had two raised edges. The flat component was about 2” wide (or 50mm) and each of the raised components at its outer edges were measured by Mr Alexander to be ¼” (or 6.25mm).

17. [50]

    The non-slip strip which is generally yellow in colour is inserted into the frame and is ordinarily held in position by glue. In the photographs, remnants of glue can be seen where the non-slip strip once was.

18. [51]

    Clearly, the non-slip tread was in a defective state in that the non-slip strip component was missing and the remnant aluminium frame presented a vertical hazard of 6.25mm (or so) for a person walking in the direction that the plaintiff was.

19. [52]

    The plaintiff’s final position, as pleaded, on the cause of the fall, was that just as he commenced to negotiate the top of the staircase, the tread on his left work boot caught on the exposed aluminium frame on the edge of the top step of the staircase. The frame was “exposed” because it was missing the non‑slip strip. On all of the other steps in the staircase, a non‑slip strip was embedded into the frame (although evidence demonstrated that such a strip was also missing from a number of other steps in other parts of the RPC).

20. [53]

    I should note that different witnesses used different expressions to describe the non-slip strip. Some called it “the yellow strip”, others called it a “grip‑strip”. In this judgment, I have used the term non-slip strip which together with the frame comprises the non-slip tread.

21. [54]

    The plaintiff’s evidence at trial was consistent with his pleading. He said that leading up to his fall, his left foot had been in its forward motion when it stopped at a point at the top of the stairs as he was starting to descend them.

22. [55]

    Initially, however, the plaintiff said that he stepped in a puddle of water on the landing and slipped, causing him to fall. That was his initial understanding. The plaintiff recorded the puddle of water as the cause of the accident in a document called “Arch Insurance Claim Form”, which was completed and signed by him a few days after the incident on 10 November 2016. In that document, the plaintiff wrote:

23. [56]

    Nevertheless, the plaintiff’s understanding later changed. The plaintiff said that the only reason that he initially adopted the puddle of water theory was because it was one suggested to him by others immediately following the incident. He says that one of the people who came to his aid said to him words to the effect of “there was water at the top of the stairs and maybe that’s why you slipped”. The plaintiff was not in a fit state at that time to check the accuracy of that explanation by doing any inspection of the scene.

24. [57]

    In his affidavit, which was filed on 12 September 2018, the plaintiff described what occurred in this way:

25. [58]

    In cross-examination by counsel for Broadspectrum, the plaintiff said that he had a clear recollection of being propelled forward and landing on the stairway before coming to rest on the mezzanine platform. He said he fell in a direct forward motion. It was suggested to him that he had no recollection of whether he slipped or tripped or what the sensation of his feet was at all. The plaintiff rejected that proposition. He gave the following evidence:

26. [59]

    The plaintiff agreed in cross-examination that he had given an account that he had slipped on some water at the top of the stairs. However, he explained that he had given that account at or about the time of his accident because of what he had heard people saying about his fall after he had fallen and whilst waiting or else being treated for his injuries. At that time, he was clearly in significant discomfort and, I accept, easily mistaken.

27. [60]

    It is true that there was a puddle of water on the landing at the top of the stairs. But it was not immediately adjacent to the edge of the landing but, rather, at least insofar as the photographs show, was set back some distance from the edge of the landing. As well, observations made by Mr Alexander, which he repeated in evidence, were that there were no indicators of water on the landing near the top step or on the plaintiff’s boots. He said that there were no water marks on any of the stairs down which the plaintiff had fallen. Mr Williams in his evidence also said that a short time after the fall he walked up the steps and noticed that the pool of water on the concrete floor of the landing “… had not been disturbed …”.

28. [61]

    In his contemporaneous email of 7 November 2016, Mr Alexander informed Mr Holt, his superior as Security Manager, that:

29. [62]

    Although the original email contains a second use of the word “not” in it, from the text and context of the email and the balance of Mr Alexander’s evidence, he clearly was intending to inform his superior that the pool of water had not been stepped in. Use of the double-negative is an unfortunate slip.

30. [63]

    Mr Alexander (called by the plaintiff) and Mr Williams (called by the first defendant) gave evidence of what they observed immediately before and after the incident and later that day. Mr Alexander deposed that after his conversation with the plaintiff before the plaintiff’s incident, he noticed a pool of water on the landing near the top of the staircase near the plaintiff’s room. Immediately after the incident, Mr Alexander observed that there were no water marks on the landing or on the plaintiff’s boots, nor any water marks on any of the descending stairs.

31. [64]

    Mr Alexander said that he returned to the site of the incident on the evening of 6 November 2016. He noticed that he cast a shadow over the stairs as he approached it. He also took some measurements of the stairs using a ruler. He recorded that the depth of the slot into which the stair nosing strip would be embedded was a quarter of an inch. Mr Alexander also conducted an exercise in which he approached the top step on three occasions from the door to the plaintiff’s room, to test whether a trip hazard existed. On two of these occasions, he observed that the tread of his boots (which were issued by Wilson Security, like the boots of the plaintiff at the time of the incident) “locked” into the gap created by the missing non‑slip strip which “checked” his forward progress. On the other occasion, his boot caught on the stair but did not lock in.

32. [65]

    Some of these contemporaneous actions and investigations by Mr Alexander are recorded in an email that he sent to Jim Holt, Security Manager at Wilson Security, which was sent on 7 November 2016 at 5:20pm. The email relevantly includes the following:

33. [66]

    Other contemporaneous documents confirm that the plaintiff’s initial understanding was that a puddle of water caused the fall. However, they also indicate a concern about the exposed aluminium frame and missing non‑slip strip.

34. [67]

    A Wilson Security post-incident report, dated 6 November 2016, records that:

35. [68]

    The same report later notes, under the heading “Details of Post Incident response”, the following:

36. [69]

    A document titled “Nauru Post Incident Review”, dated 6 November 2016, records under the heading “What was the root cause of the incident”, that:

37. [70]

    This document also records as a recommendation an “audit of ‘grip steps’ in other accommodation blocks”.

38. [71]

    A document titled “Job/Stock Request Form”, dated 7 November 2016, records that on the day after the incident, a request was made for eight stair tread “grip strips”. It is apparent from the Job/Stock Request Form that it is a standard form used in the RPC by Broadspectrum.

39. [72]

    Mr Williams was employed by Wilson Security on the island of Nauru at the RPC as the Health and Safety Environment Co-ordinator. Mr Williams heard the plaintiff falling and went outside his room to see what had occurred. He went to assist the plaintiff and was accompanied by two fellow employees – a Ms Zalazala and a Ms Leoni. He took some of the photographs which later became evidence. His first reaction was to assist the plaintiff and he then called an ambulance within a very short space of time. His only discussion with the plaintiff was about the plaintiff’s physical state, including where he felt pain.

40. [73]

    Mr Williams said in his statement that he had inspected the stairs after the paramedics attended to the plaintiff and observed the puddle of water at the top of the stairs. He recorded the presence of the puddle in a Post Incident Review form submitted to his superiors. In his written accounts, either for the purposes of reporting to his superiors or in his statements in this Court, and in his oral evidence, Mr Williams did not suggest that there was anything about the appearance of the puddle of water which indicated that a boot had slipped whilst in it.

41. [74]

    Curiously, in his cross-examination, Mr Williams denied seeing a puddle of water at or about the time of the accident. When he returned a few hours after the accident to the scene where the plaintiff had fallen, Mr Williams observed a stain “… that would have appeared to have been from a wetting of the ground previously …”. He said that the stain appeared to be from “lying water”.

42. [75]

    Mr Williams did not himself connect the puddle of water to the plaintiff’s fall, nor did he express any view at the time connecting the puddle of water and the plaintiff’s fall, although he did record the plaintiff’s statement as to his belief about the fall.

43. [76]

    Having regard to all of this evidence, including the available evidence of the physical environment, together with observations made by the plaintiff after his fall, does not enable a conclusion to be drawn that the plaintiff slipped in the pool of water and fell down the stairs, or that the pool of water had in any way been a causative mechanism for the fall. I accept that the plaintiff was repeating what he had been told by bystanders and was not in a fit state at that stage, having regard to his pain and discomfort and general shock after the fall, to have any clarity as to why he had fallen.

44. [77]

    In coming to this conclusion, I also note according to Mr Williams, he attended with two other people from Wilson Security: one, Ms Leonard, was the plaintiff’s Supervisor; the other, Ms Zalazala, was the occupant of a nearby room which was on the ground floor. Neither Ms Leonard nor Ms Zalazala was called in evidence. They were employees of Wilson Security. I proceed on the basis that they had nothing to add about the pool of water which would have cast light on it being a cause of the fall.

Inspection System

1. [78]

   I have earlier set out the evidence noting that the non-slip strip had been missing for some time. The defendants both submitted that adequate inspections had been made, or else as a matter of proper scheduled routine was adequate.

2. [79]

   The only evidence called about the inspection system and routine was given by Mr Williams. He gave evidence that part of his role as the HSE Co-ordinator was to conduct twice-weekly inspections of the accommodation facilities for the purpose of identifying hazards and any feature of the physical environment that might cause injury to people in that environment. He agreed that the absence of the non‑slip strip “… creates a significant hazard …”. He agreed that that was so because without the non-slip strip, the remaining parts did not perform its intended function as a non-slip tread.

3. [80]

   Mr Williams agreed by reference to one of the photographs, that it was “pretty obvious that there was no yellow strip there”. He gave this evidence in cross‑examination:

4. [81]

   In re-examination, Mr Williams seemed to suggest that whilst conducting the inspections, he was looking for a range of matters such as loose rubbish and suitability including expiration of fire-fighting equipment. However, he did not suggest that his earlier answer, that he was looking for safety hazards, was in any way incorrect. In further cross-examination, he did suggest that he may not have walked over the particular stair where the plaintiff fell twice a week. He suggested it may have been no more frequently than once a month.

5. [82]

   Mr Williams agreed that on 7 November 2016, he had completed a form known as a Job/Stock Request form, requesting maintenance assistance at the RPC where the fall occurred. The request said this: “RPC1 E and J Blocks, 8 x stair tread ‘Grip Strip’ missing yellow plastic insert”. He asked for the maintenance to be attended to “ASAP”.

6. [83]

   The Job Stock Request Form makes it clear that following an inspection of E and J Blocks at the Centre, shortly after the accident, it was found that eight yellow strips were missing. I assume that this included the area where the plaintiff fell.

7. [84]

   Whilst it is conceivably possible that, leaving aside the area where the plaintiff fell, these “grip strips” could all have gone missing in the period after the plaintiff fell and before the inspection which followed shortly afterwards, such a circumstance defies logic and the probabilities. I am satisfied, as I have earlier said, that the appearance of the aluminium frame in the area where the non-slip strip was missing where the plaintiff fell, suggests that it had been missing for a reasonable period of time. Mr Alexander suggested that it may have been missing for up to 18 months or more.

8. [85]

   I have come to the conclusion, from the combination of evidence of the physical environment where the plaintiff fell, my conclusion that the non-slip strip was missing for a period, Mr Alexander’s observation that it had been missing for a reasonable time, and the fact that when an inspection was carried out after the accident eight missing stair treads were found, that whatever the system of inspection which was in place and being undertaken by Mr Williams (or his fellow HSE Co-ordinator), it was wholly inadequate to detect what Mr Williams himself said was a significant hazard to the safety of people using the staircase which required rectification. The failure to detect these missing strips which, as the photographs show, are quite obvious, confirms my conclusion that the safety inspections were entirely inadequate to ensure a safe accommodation block and to identify and either repair or remove the features of the accommodation block which constituted a significant hazard to peoples’ safety.

9. [86]

   The ultimate effect of Mr Williams’ evidence that the stairs in E Block, and those premises generally, would have been inspected only monthly, particularly given the fly-in/fly-out workforce which changed regularly, was a wholly inadequate schedule of inspections. Accordingly, not only was the schedule of safety inspections inadequate, but so too was the content of the actual inspections of the area of the plaintiff’s fall. This last conclusion follows because, as I have just found, the non-slip strip had been missing for a period which must have been longer than a month.

10. [87]

    The next question is whether the absence of the non-slip strip was causally related to the plaintiff’s fall.

11. [88]

    I have earlier noted the plaintiff’s evidence that he felt that his forward movement was impeded.

12. [89]

    It is convenient to repeat his statement:

13. [90]

    His back injury was immediately apparent. It was also the fact that the plaintiff did not always use the stairs where his accident happened on each occasion when he needed to descend from the first floor to the ground floor. There were other staircases available and which he used.

14. [91]

    However, he accepted that he had used these stairs on a number of occasions whilst wearing his work boots and had not had any trouble negotiating the stairs.

15. [92]

    His account was challenged in some, but not all, respects in cross‑examination. He was asked whether, in the context of running late for the start of his shift, he was hurrying for that or any other reason. He denied that he was hurrying. He was asked if he could recall landing on his buttocks on the way down. His answer included the words “I recall propelling forward …”. He said that he had fallen forward and rolled although he had not somersaulted. He said that he felt his fall was in a direct forward motion.

16. [93]

    It was suggested to the plaintiff by senior counsel for Broadspectrum that he did not in fact recall whether he slipped or tripped, or what the sensation of his feet was at all. He rejected such a proposition, saying it was incorrect and that he had a recollection of the fall being that which was set out in his statement.

17. [94]

    He confirmed to senior counsel for Broadspectrum that he had a good recollection, saying that he was sure that it was his left foot which tripped.

18. [95]

    He accepted that he had believed initially, for a period of time, that one of his feet had slipped. He said that it was within one to two weeks after his fall that he came to the realisation that that was not what had happened, but rather he had tripped when his foot had stopped.

19. [96]

    It was suggested to him that he did not have any recollection at all of his foot stopping, which he denied.

20. [97]

    The plaintiff agreed with senior counsel that about four days after his fall, he had completed a claim form on a personal accident policy offered by Arch Insurance, and that he had described his fall as having occurred because he slipped on some water. For reasons which I have earlier explained, I do not accept that he slipped in water. As I have found above, the physical environment and the evidence generally does not support that claim, and it was clearly the product of suggestions being made to him at the time by others who did not see the fall.

21. [98]

    In cross-examination, senior counsel for Broadspectrum established that the plaintiff had not spoken to Mr Alexander about the mechanism of his injury, nor had he read Mr Alexander’s email of 7 November 2016 until about six months after his accident had occurred. It was suggested to him that it was only after his discussion with Mr Alexander, and perusing the 7 November email, that he had come to the view that he had tripped in accordance with the mechanism broadly described by Mr Alexander and had fallen as a result of that trip. He denied that that was so.

22. [99]

    I note that whilst senior counsel for Broadspectrum challenged the plaintiff’s memory as to his account of the fall, noting the initial account given that he had slipped, senior counsel did not put any different version of the facts which suggested any other possible cause of the fall. Either the plaintiff had slipped or tripped causing him to fall, or else he did not have any clear recollection of what it was that made him fall, was the way in which cross‑examination by senior counsel for Broadspectrum unfolded.

23. [100]

    There was also cross-examination about the state of the lighting in the accommodation block at the time, by both senior counsel for Broadspectrum and counsel for Wilson Security. As I later explain, I have not been persuaded that the lighting was inadequate. Nor have I been persuaded that the level of the lighting had any causal effect on the plaintiff’s fall.

24. [101]

    It is appropriate at this juncture to indicate that I found the plaintiff to be an impressive witness who gave truthful evidence. There was nothing about the manner of his giving evidence which caused me to doubt his truthfulness or the overall accuracy of his evidence. I accept his evidence as to how he came to fall – namely that he tripped on the aluminium frame at the top of the flight of stairs, which frame did not contain any non-slip strip which it ought to have.

25. [102]

    The plaintiff retained Mr Grant Johnston, an expert consulting engineer, who undertakes a significant number of investigations relating to accidents, including motor vehicle accidents and incidents involving pedestrians and people on foot falling over and injuring themselves. The defendants retained Mr John Cooke. Professor Cooke has degrees in Architecture, Science and Law. He obtained a Doctor of Philosophy from the University of Sydney in 1994. He is an academic at the Faculty of the Built Environment at the University of Sydney. He has given expert evidence in hundreds of matters involving slip testing and the evaluation of slipperiness of pedestrian surfaces. He has also been retained to give lectures on the design of worksites which are constructed so as to ensure that they are safe.

26. [103]

    Both experts are familiar with giving evidence in cases where a person has fallen and been injured. They are familiar with each other.

27. [104]

    They provided a joint expert report. In that report, neither of them supported a conclusion that the plaintiff had slipped in a pool of water and fallen.

28. [105]

    It should be noted that neither of the experts visited Nauru or inspected the location where the plaintiff had fallen. However, they had available to them photographs taken contemporaneously, which were tendered. Their conclusion was based upon those photographs. Dr Cooke noted in the joint report, that it was his opinion that:

29. [106]

    As well, they both agreed from their observations of the photographs, that the textured type appearance of the surface of the landing would ordinarily be expected to provide adequate-type friction results in the absence of specific contaminants. On the basis that the observations were that there was water on that surface, the experts jointly said that:

30. [107]

    These expert opinions support the conclusion to which I have otherwise come that the pool of water was not implicated as a cause of the plaintiff’s fall.

31. [108]

    When considering a tripping mechanism associated with the aluminium frame without the non-slip strip, and whether it could have caused a trip of the kind described by Mr Alexander, namely, that the tread on the work boots issued to employees and which were being worn by the plaintiff at the time became entrapped within the space of the aluminium frame, Professor Cooke did not think that it would have been possible physically for the heel of the plaintiff’s boot to become entrapped in the aluminium frame. He did not express a view as to whether or not it was possible for part of the tread‑block of the sole of the boot to have become entrapped in the nosing recess. Both experts agreed that there was a further hypothetical fall option – which is that the plaintiff simply over-stepped the landing nose and fell forward as the result of an effective misstep. Such a cause would not have related to any precipitating factor associated with the physical environment.

32. [109]

    In oral evidence, Mr Johnston was asked to assume the correctness of the plaintiff’s account that, as he stepped onto the edge of the landing, he felt his left foot stop and then he fell, tumbling forward. Of that account, Mr Johnston said this:

33. [110]

    In his evidence, Mr Johnston noted that he had available to him the actual aluminium strip which had been on the landing at the top of the stairs at the time of the plaintiff’s fall. He used that strip, which was identical but had a yellow insert in it, to test a boot which he understood to be of the kind which had been worn by staff. The boot which he used, he understood to have been provided by Mr Alexander. He concluded that the description of the fall given by the plaintiff was consistent with a mechanism whereby the boot which he inspected was arrested by the edge of the aluminium frame. He said in such a circumstance, because when a foot stops the weight of a person is going forward, a fall can follow. A groove of the kind he observed would impede that forward motion and the tread would hold the boot in place. He said that that was the mechanism he concluded contributed to the fall.

34. [111]

    Mr Johnston was cross-examined, and it was suggested to him that, having regard to the photographs of the scene and of the relevant items, it would be extremely unlikely for the leading edge of the aluminium frame to impede the forward movement of the boot at all. He disagreed, saying that in his examination and testing on his test equipment, such a phenomenon had clearly happened. He said that the groove he had identified in his reports had kept catching.

35. [112]

    In his evidence in chief, Professor Cooke was taken to Mr Johnston’s report in which he described the mechanism of the tread of the boot catching in the aluminium frame. He said that he did not think that such an occurrence would constitute some risk of misstep or trip.

36. [113]

    In cross-examination, he agreed that the absence of the yellow strip meant that the remaining aluminium frame, in a dry area, created an unevenness in the area where a foot was likely to land prior to a person descending the stairs. He also agreed that there was a clear possibility of a shoe being slightly arrested by the absence of the non-slip strip. He also gave this evidence:

37. [114]

    The question of whether the plaintiff had mis-stepped or tripped in the way he described was pursued in cross-examination. The evidence of Professor Cooke was to this effect:

38. [115]

    My conclusion from the expert evidence is that if one accepted the plaintiff’s account, and had regard to the reasoning of Mr Johnston, and the application of general principle by Professor Cooke in the evidence recently described, then the fall which caused the plaintiff’s injuries was caused by the presence of the raised lip of the aluminium frame which impeded the forward progress of the plaintiff with his heel becoming caught on that unevenness which constituted, in my view, an obstruction, which was sufficient to amount to a safety hazard.

39. [116]

    In those circumstances, I accept the plaintiff’s evidence and I accept that his fall was caused by the presence of the aluminium frame without the non-slip strip in it which impeded the progress of his boot as he reached the top of the stairs intending to walk down them.

Contributory Negligence

1. [117]

   Both defendants alleged and submitted that in the event that the plaintiff has succeeded in establishing a breach of duty, that he was guilty of contributory negligence. At the conclusion of the trial, both defendants submitted that the plaintiff’s failure to hold the handrail as he descended the stairs constituted a failure to take reasonable care for his own safety. There was no other basis relied upon to allege contributory negligence.

2. [118]

   I reject that submission.

3. [119]

   Whilst the plaintiff agreed that there was a handrail in position (as the photographs demonstrate) and that it was possible for him to take hold of it from the place where he tripped, the fact is that he tripped and fell when his left foot became stuck as he was swinging his right foot forward to commence his descent of the stairs. At that point in time, he had not commenced to descend the stairs and was still on the landing and, accordingly, he was not presented with the usual risks encountered whilst actually descending the stairs. The taking of the handrail may, in my view, have been a proper and appropriate precaution once he had commenced descending the stairs. In my view, as he tripped and fell before that point in time, and before his descent started, his failure to take the handrail was not a failure to take care for his own safety in all of the circumstances.

Lighting

1. [120]

   The plaintiff pleaded a case that the lighting was inadequate in the area of his fall.

2. [121]

   Mr Alexander’s evidence was that there was no roof light but, rather, the lighting was only situated on the walls. The contemporaneous photographs support that observation.

3. [122]

   I am not prepared to rely upon the contemporaneous photographs as sufficiently demonstrating either the absence of adequate lighting, or that the lighting was adequate. That is because the lighting was an incidental feature of those photographs. They were taken to show various features of and surrounding the steps. It is unclear to me, and the evidence does not reveal, whether the photographs were taken when it was daylight outside or night‑time. They do not reveal whether some or all of the lights were switched on. The photographs do not clearly reveal the location of the lights in the immediate vicinity of where the photographer was standing at the time the photographs were taken.

4. [123]

   The evidence of each of the experts, Mr Johnston and Professor Cooke, was that they were unable to conclude objectively what the level of the lighting was in the building. In part that was because no objective testing of the light level had been undertaken and, accordingly, neither of them had the results of any such testing. Further, neither of them had visited the premises where the plaintiff’s fall took place.

5. [124]

   To the extent that any of the witnesses present at the time, namely the plaintiff, Mr Alexander and Mr Williams, gave any evidence about the lighting, their observations are necessarily subjective which, in the absence of objective measurements and objectively determined levels of light, are insufficient to enable a conclusion to be drawn that the light was inadequate for the circumstances of the particular location having regard to its anticipated use.

6. [125]

   Finally, I note that nowhere in the plaintiff’s evidence as to how he came to fall did he suggest that the lighting was of a level which meant that he did not observe that which he ought reasonably to have observed, namely, the aluminium frame with the missing non-slip strip.

7. [126]

   In those circumstances, I am unpersuaded that any breach of duty has been established by the plaintiff with respect to the level of lighting in place at the time of his accident.

Dual Liability

1. [127]

   It is to be recalled that although Broadspectrum and Wilson Security had reached an agreement with respect to the cross-claim, which meant that the Court was not obliged to determine on the cross-claim any apportionment between the defendants, Broadspectrum nevertheless maintained an argument that it should not be held to be negligent because, with respect to employees of Wilson Security, it had, by its sub-contract, required Wilson Security to undertake the relevant inspections for the purpose of ensuring that the accommodation blocks, including Block E, were in a safe state.

2. [128]

   It submitted that there was no reason for it to conclude that Wilson Security was not an appropriate independent contractor to undertake that work for it and, accordingly, nothing further was required of it for the purpose of discharging its duty of care to the plaintiff.

3. [129]

   It is of note that the Job Stock Request Form, to which I have earlier referred, was a Broadspectrum form. It appears from that, and the evidence generally, that Wilson Security carried out inspections but when repairs or maintenance of the kind involved in the causative mechanism of the plaintiff’s fall were required, it was Broadspectrum who carried the stock and provided it for replacement.

4. [130]

   It suggests that Broadspectrum continued to have a role in the maintenance of the premises.

5. [131]

   But more particularly, in the circumstances of this case, to succeed on such an argument, more was needed in evidence than the mere tendering of the sub‑contract between Broadspectrum and Wilson Security. There was no evidence as to how Wilson Security was chosen to be the sub‑contractor and to undertake the relevant work. There was no evidence that Broadspectrum had required Wilson Security to submit to it a program for maintenance and safety inspections containing within it the frequency of those maintenance and safety inspections, the standards of performance by which Wilson Security’s inspections were to be assessed, whether there were any time standards for repairs or replacements to be undertaken where safety hazards were found to exist, and no evidence at all that Broadspectrum had done anything other than award the sub‑contract to Wilson Security to suggest that Broadspectrum had taken any steps at all to satisfy itself that Wilson Security was an appropriate sub‑contractor which was capable of fulfilling the obligations in the sub‑contract, nor that Broadspectrum ever checked to see whether Wilson Security was in fact performing its obligations.

6. [132]

   In light of the fact that, shortly after the plaintiff’s accident, it was discovered that eight non-slip strips were missing from various steps throughout the RPC, I would infer that the discharge of the sub‑contractual obligations by Wilson Security was inadequate broadly across the RPC, or certainly at least, the accommodation blocks.

7. [133]

   Broadspectrum had staff located in the RPC. It is not clear from the evidence whether they lived in any of the accommodation blocks at RPC2, however, given the number of non-slip strips missing, and in the circumstances of the one involved in the plaintiff’s fall being missing for a reasonable period of time, such was the performance of Wilson Security of its contractual obligations, that the inadequate performance could not have escaped observation by employees of Broadspectrum.

8. [134]

   Broadspectrum has not satisfied me based upon its arguments about the selection of a proper, independent sub‑contractor, and leaving it to the independent sub‑contractor to take the requisite steps, that it discharged its obligations to the plaintiff as the body responsible to the Commonwealth of Australia for the RPC on Nauru.

9. [135]

   Accordingly, there will be judgment for the plaintiff against each of the defendants.

Damages

1. [136]

   The plaintiff’s evidence was that after he came to rest on the mezzanine level, he immediately felt a severe, burning, sharp and throbbing pain in his lower back. He said that it extended all the way down his hamstring to his left foot. He found that he was unable to use his legs properly.

2. [137]

   A medical team arrived, and the plaintiff was taken by ambulance to the Nauru Hospital and then back to the medical centre at the RPC.

3. [138]

   He was informed that he needed to be flown to Brisbane for hospital treatment. He arrived in Brisbane later on the day of his accident, and was taken to the Princess Alexandra Hospital where he remained until he was discharged on 10 November 2016.

4. [139]

   At the hospital he underwent several tests and scans. They revealed that he had bulging disks at the L5-S1, L4-L5 and L3-L4.

5. [140]

   Prior to his discharge, the plaintiff was taking medication but still found that he suffered pain. Upon discharge, the plaintiff could only mobilise using crutches.

6. [141]

   He was referred by his general practitioner, Dr Joan Henderson, to a physiotherapist for ongoing treatment. He was also referred to a psychologist.

7. [142]

   He attended at the physiotherapy initially three times a week for the first month after leaving hospital, and then less frequently, being one to two days per week, for the next three months or so.

8. [143]

   By June 2017, and in the presence of continuing symptoms, the plaintiff was referred to Dr Neal Cleaver, a specialist orthopaedic surgeon. Dr Cleaver first reviewed the plaintiff in June 2017. At that time, the plaintiff reported back pain and pain going down the back of his left leg. Dr Cleaver examined the plaintiff and found a painful left sacroiliac joint which was consistent with his presentation and injury.

9. [144]

   Dr Cleaver sent the plaintiff for an injection of anaesthetic into his left sacroiliac joint “… to prove the diagnosis …” and noted that the plaintiff was pain-free for the duration of the anaesthetic.

10. [145]

    In a report of July 2017, Dr Cleaver expressed the view that the plaintiff’s prognosis was good, although he thought that future treatment would probably be required by way of multiple injections. He said that if that regime of treatment did not give prolonged analgesic effect, then the plaintiff may require surgery. Dr Cleaver said:

11. [146]

    The cortisone injection given to the plaintiff gave him some relief, according to Dr Cleaver. Dr Cleaver noted that the relief was for about three to four weeks. He said that he repeated that conservative method of treatment on a number of occasions.

12. [147]

    On 5 December 2017, Dr Cleaver performed an arthrodesis (fusion) of the plaintiff’s left sacroiliac joint, at the Gold Coast Private Hospital.

13. [148]

    In addition, after the procedure of 5 December 2017, the plaintiff says that he began to experience a tingling-type sensation, as well as pain, in his left hand and fingers. He lost some control over this hand. According to his doctor, these issues are a consequence of ulnar nerve damage. He was referred to a neurophysiologist but had to cancel the appointment due to the cost.

14. [149]

    When seen, about six weeks after the surgery, the plaintiff gave an account to Dr Cleaver that there had been a significant reduction in his symptoms, although he had some referred pain. He was taking some analgesic drugs.

15. [150]

    At that stage, in a report dated 21 February 2018, Dr Cleaver diagnosed the plaintiff as suffering from a “disruption to his left sacroiliac joint”. He thought that the plaintiff’s prognosis was “very guarded”. Dr Cleaver said that the plaintiff had a capacity for employment in some of his pre-injury duties. Dr Cleaver thought that the plaintiff’s future work activities would need to be limited. He could not carry out heavy lifting. He would have to refrain from repetitive bending, twisting and squatting. Dr Cleaver described the plaintiff’s work capacity in this way: “He essentially is fit and cleared only for supervisory and administrative or educational roles”.

16. [151]

    From the plaintiff’s perspective, he found that the operative procedure relieved some of his pain. In a statement made in August 2018, the plaintiff said that he still frequently had an ache in his lower back, aggravated whenever he performed activities that involving bending, twisting or lifting. He also noted that his backpain was aggravated by walking or sitting for long periods.

17. [152]

    The plaintiff continued to attend for physiotherapy and occasionally hydrotherapy after his operation. The plaintiff’s evidence was that he was restricted in his activities both at work, around the house and socially from 2018 onwards.

18. [153]

    Because of those difficulties and restrictions, in June 2018, the plaintiff’s partner and he moved into a different apartment than the one he had been occupying which was much smaller and required minimal maintenance. In particular, the new apartment did not have stairs in it (which the plaintiff found difficult to negotiate) and did not have a yard requiring lawn or other maintenance. This eased the burden on the plaintiff who was assisted in the outdoor maintenance tasks in his former apartment by his brother.

19. [154]

    In March 2017, the plaintiff was motivated to try and return to work with Wilson Security and hoped to be able to continue working from time to time when pain occurred. On 2 March 2017, he returned with the team that he had been working with prior to his accident to Nauru by plane from Brisbane. He was allocated work for a week by way of nightshifts. The plaintiff described his injuries and disabilities with relation to his work in this way:

20. [155]

    At the request of his employer, he consulted with a psychologist whilst on Nauru. She informed the plaintiff that her examination revealed that he suffered from depression, stress, and high levels of anxiety. She suggested that he consider antidepressant medication. He did not complete his shift that evening and then returned home where he consulted with his GP and physiotherapist, both of whom advised him not to return to work until cleared by them in circumstances where, so it appears, his pain and restriction would have settled down.

21. [156]

    The plaintiff also says that he struggles with anxiety and stress, which he says is a result of his injury and the subsequent effects to his professional and personal life.

22. [157]

    In cross-examination it became clear that prior to seeing Dr Cleaver, the plaintiff’s pain would go away for some time, but that period was limited by the extent of the plaintiff’s activity. He noted that the injections which he had undergone had good effect for a short period of time, and he agreed that the injections had made some but not a complete difference.

23. [158]

    It was also plain from cross-examination that the plaintiff as at the time of the hearing continued to have some difficulty with various activities involving physical effort, although he made attempts to try and keep reasonably fit and active. He swam occasionally, particularly at the beach, he would walk the dog which he shared with his partner, he would undertake Pilates from time to time and at one stage, periodically used a pushbike.

24. [159]

    It was put to the plaintiff that from a physical perspective that, at the time of the hearing in October 2022, he could return to one of his previous jobs as a security coordinator. He said that that was not open to him because of his physical state.

25. [160]

    The plaintiff, by consulting his notes, informed the Court in the course of cross‑examination that since 2020, whilst working for Suncorp (in his most recent employment role), he had taken approximately 25-30 days off because of his pain and difficulty in working. He agreed that the times he took off were about one day a month or a little less. The plaintiff confirmed in his evidence that at the time of trial he was still having physiotherapy from time to time, that he suffered from back pain from time to time – although he had periods without any significant back pain – and he continued to take medication including Endone, a strong morphine‑based painkiller, from time to time. That medication came on prescription from his current GP.

26. [161]

    The plaintiff’s evidence about his injuries and disabilities was corroborated by Ms Aimee Clark who was in a relationship with the plaintiff at the time of his accident. Although I have found that the law of Nauru does not permit an award of damages for gratuitous domestic assistance, evidence as to what help the plaintiff was given, and the circumstances of that help, is relevant to an assessment of the effect of his injuries generally. Since his fall, the plaintiff’s family has been burdened with much of the plaintiff’s domestic chores and duties. Ms Aimee Clarke, the plaintiff’s partner from March 2015 to March 2022, gave evidence of the significant domestic assistance she gave the plaintiff in the months and years following his injury. She also deposed that the injury and its consequences has had a substantial effect on the plaintiff’s happiness, positivity, and motivation, as well as his outlook on life and career goals.

27. [162]

    In 2016, the plaintiff and Ms Clark moved into a house with a large yard. Ms Clark said that she and the plaintiff had moved from the house in the Brisbane suburb of Brassall to an apartment in the Brisbane suburb of Sherwood. They did so because the plaintiff could not manage domestic activities and was completely unable to look after any of the outside areas. The apartment to which they moved did not require any external work and was smaller than their previous house. Ms Clark’s observations were that prior to the accident the plaintiff was a very motivated, happy and positive person. He was active around the house and exercised frequently by jogging or going to the gym. As well, she noted that his work generally was physically demanding.

28. [163]

    By November 2020, Ms Clark had been in the company of the plaintiff when he received advice from his doctors. It was her evidence that the doctors had told the plaintiff that he would not be fit to return to his previous employment, having regard to his ongoing symptomatology, and that by about November 2020, his recovery had reached its maximum level, which Dr Cleaver assessed at the time of the joint expert conclave to be about 80% of his uninjured condition.

29. [164]

    In particular, Ms Clark noted that whilst the plaintiff attempted to work as a real estate agent, he suffered significantly from having to stand for long periods of time, working seven days a week and being on-call without necessarily having sufficient recovery time between working hours. She said that such was the effect on him that he resigned from the job.

30. [165]

    To her observation, the plaintiff continued to take medication when in pain to help control it. She noted that this varied because on some days it was not necessary for him to take medication although her impression was that the plaintiff was never completely out of pain. She also noted that since his injury, the plaintiff had been very susceptible to periods of depression. In conversation with the plaintiff, he informed her that the depression was related to his physical disabilities and the fact that his professional goals could not be fulfilled.

31. [166]

    Ms Clark gave evidence about the impact of the pain and injuries on the plaintiff’s capacity to carry out domestic tasks. Putting it in summary, her observations were that the plaintiff could not vacuum, mop or scrub floors, he could not clean the showers and toilets, he could not really do anything that involved bending or lifting heavy things and could not always reach up to the clothesline to hang washing. She also said that due to his pain and injuries, he could no longer wash his car or do any outside gardening or maintenance work. She also noted that he had trouble driving long distances and continued to take medication as required.

32. [167]

    Of the effect of the injury on the plaintiff, she said:

33. [168]

    By the time she came to give evidence, Ms Clark had qualified and been attested as a police officer in the Queensland Police Service. Although they moved to Ingham in North Queensland to enable her to take up a posting, Ms Clark did not notice any change in the plaintiff’s condition. He was able to work remotely. She noted that their relationship ended in March 2022, and the plaintiff moved back to Brisbane. She concluded her evidence with this statement:

34. [169]

    Ms Clark was cross-examined briefly by senior counsel for Broadspectrum. It is fair to say that the substance and effect of her evidence was not subject to significant challenge. Ms Clark was, I thought, a measured and careful witness whose evidence I entirely accept.

35. [170]

    The plaintiff’s mother, Mrs Ellen Farmer, also gave evidence by a statement. She said that prior to the accident she would describe the plaintiff as a very fit, strong, healthy and active young man who was very enthusiastic about sport and physical activity.

36. [171]

    She said that from the time of his return from Nauru after his accident, she observed a very significant deterioration of his physical well-being and also his mental health. She saw that he no longer conveyed his enthusiastic approach to life which he had previously had and that to her, the plaintiff always appeared to be depressed and disheartened.

37. [172]

    Mrs Farmer noted that after the plaintiff moved back to live with her, having ended the relationship with Ms Clark, that it was quite apparent that he was not able to do a lot of duties around the house of the ordinary kind including both inside and outside the house. She also noted that from her home in Ipswich where the plaintiff was living, that he found the travel to Brisbane to work at Suncorp to aggravate his backpain and she further noted that regularly after he returned home from work the plaintiff would lie down and rest his back. She said that she had seen him taking medication and that he had significant problems sleeping.

38. [173]

    Mrs Farmer was not cross-examined. I accept her evidence.

39. [174]

    I accept the plaintiff’s evidence which is corroborated by Ms Clarke and his mother, about the pain and suffering which he endured and the extent of his personal reactions to the injuries which he sustained. Clearly the pain and suffering which he has had relates to the injuries which he sustained when he fell. No other cause for his pain and suffering was identified in the evidence, nor was any cause put to him for his comment in cross‑examination. The pain from which he suffers restricts his range of activities intermittently, particularly with respect to lifting anything heavy, bending, undertaking domestic activities and undertaking physical recreation activities.

40. [175]

    That does not mean that he does not try. He does. It does not mean that he cannot do some things. He can ride a bike, he can walk for some distance, he can drive motor vehicles and travel on trains. But the fact is that if he does any of these activities to excess or for a lengthy period of time, he suffers from pain. The pain requires him to either undergo physiotherapy or to take medication including, on occasions, quite significant medication such as Endone.

41. [176]

    It is now some seven years since his accident. Although he has undergone surgery in an attempt to improve his condition, the problems which he now faces and from which he now suffers will be with him, in my opinion, for the rest of his life.

42. [177]

    His injuries represent a significant impact upon everything which he does. His injuries have also impacted upon his ability to maintain relationships, including being a contributing factor to the breakdown in his relationship with Ms Clark.

43. [178]

    As well, the injuries and disabilities have impacted upon the range of employment opportunities which the defendant has had.

The Plaintiff’s Diagnosis

1. [179]

   Although I have accepted the plaintiff’s complaints, which were corroborated to a significant extent, it is necessary to come to a view about the diagnosis of his condition. That is because the two expert orthopaedic surgeons who were called to give evidence could not agree about the appropriate diagnosis of the plaintiff’s condition, and could find little, if any, common ground. It was clear to me that such were the differences of opinion and approach to the plaintiff’s injuries, pain and suffering that I could not accept the evidence of both experts on the basis that there was some consensus to be found in their opinions.

2. [180]

   From the first time he saw the plaintiff, Dr Cleaver diagnosed him as having “an injury to his left sacroiliac joint”. It was this joint that he feared would require fusion unless other measures were successful. In his letter to the plaintiff’s lawyer, in October 2017, he described the proposed procedure as a “minimally invasive left sacroiliac fusion”.

3. [181]

   In February 2018, Dr Cleaver described his diagnosis as “pain of left sacroiliac joint origin”.

4. [182]

   At the conclusion of his report of February 2018, Dr Cleaver said that the diagnosis of the plaintiff was of “… a disruption to his left sacroiliac joint”. When challenged as to his opinion by reports from Dr Scott Sommerville, Dr Cleaver said that his diagnosis of pain of sacroiliac origin was made after taking a history about the accident, performing a clinical examination and ascertaining and evaluating the plaintiff’s response to various diagnostic blocks. He referred to published medical literature in support of his opinion. He pointed to a CT scan of the plaintiff’s pelvis and sacroiliac joints, noting indications of degeneration and instability inside the joint. He noted that his diagnosis was a clinical one and that bone scans, MRI scans and plain x-rays in such patients are almost always normal.

5. [183]

   In a more formal and lengthy report of September 2020, Dr Cleaver recorded his diagnoses as:

6. [184]

   The left ulnar nerve neuropraxia seems to be a complication arising from the surgery which Dr Cleaver performed, rather than directly from the plaintiff’s fall. Nevertheless, it is an injury which is causally related to his fall as it was caused during treatment reasonably undertaken by the plaintiff.

7. [185]

   The plaintiff’s solicitors also obtained an expert report from Dr Greg Gillett, an orthopaedic surgeon, who was not required for cross-examination. Dr Gillett reported on 1 June 2018, that the plaintiff’s diagnosis was:

8. [186]

   In general terms, his diagnosis and prognosis broadly agreed with that of Dr Cleaver.

9. [187]

   The first defendant retained Dr Scott Sommerville, an orthopaedic surgeon with a particular expertise in hip, knee and musculoskeletal tumour surgery. Dr Sommerville first reported on 21 February 2019, having examined the plaintiff on 24 January 2019. The summary of Dr Sommerville’s report was in the following terms:

10. [188]

    The report then covers these conclusions in greater detail.

11. [189]

    In the course of his report, Dr Sommerville was critical of the plaintiff’s first GP who treated him originally for about an eight-month period after the fall occurred but retired around the middle of 2017. Of that GP, he said this:

12. [190]

    Dr Sommerville was also highly critical of Dr Cleaver. He referred to a letter dictated about two weeks or so after the surgery by Dr Cleaver. He also referred to the records of the Hospital where the plaintiff was taken when transferred from Nauru. Dr Sommerville said this:

13. [191]

    Dr Sommerville expressed the view, having regard to the material which he had reviewed, that it was unclear why a left sacro-iliac joint fusion was recommended.

14. [192]

    Dr Sommerville’s report contains statements of his opinion that the price quoted for the surgical operation by Dr Cleaver could not be justified, that item numbers which Dr Cleaver had used to describe the procedure undertaken, apparently drawn from the Commonwealth Medicare Item Schedule, were wholly inappropriate, and other items would have been more appropriate for the surgery undertaken.

15. [193]

    Dr Sommerville was critical in his report of the diagnosis of Dr Cleaver of “a disruption to his left sacroiliac joint”. Dr Sommerville opined that there was no clinical evidence of an acute injurious process to the pelvis or sacroiliac joint recorded contemporaneously with the fall. He noted that all investigations of the plaintiff’s left sacroiliac joint were normal, including a normal x-ray. He said that there were three normal CT scans and a normal MRI scan. He expressed this view:

16. [194]

    Dr Sommerville then considered the report of Dr Gillett to which reference has earlier been made.

17. [195]

    In dealing with Dr Gillett’s opinion that the appropriate diagnosis was that of a left sacroiliac joint injury which was consistent with the description of the fall provided by the plaintiff, Dr Sommerville said:

18. [196]

    In a supplementary report dated 23 April 2019, Dr Sommerville did not change or temper any of his opinions or the tone of his comments.

19. [197]

    He, again, in strong language, suggests that Dr Cleaver’s opinion is untenable. Dr Sommerville at one stage “reiterates” that the mechanism of injury and the prior records do not reflect or support evidence of an injury to the left sacroiliac joint. He then takes the opportunity to highlight that “the estimated costs of Dr Cleaver’s proposed surgery … cannot be justified to appropriately reflect cost structures supportable on a time, difficulty or skills required basis”.

20. [198]

    Of Dr Cleaver’s opinion after the surgery, he said that it “dramatically and inexplicably changes”.

21. [199]

    He criticises Dr Cleaver’s operation notes because they record left sacroiliitis. Dr Sommerville says that that expression may reasonably be taken to reflect an inflammatory or degenerative process involving the left sacroiliac joint. He points to the fact that he says that there was no medical evidence to support such a diagnosis, and if there was a degenerative condition present resulting from “the rapid degeneration of the left sacroiliac joint”, that he would have expected the “injury” to have been a significant traumatic event with obvious structural damage.

22. [200]

    In particular, in his second report, Dr Sommerville was critical of the opinion advanced by Dr Cleaver after the surgery – that the plaintiff did not have capacity for his pre-injury duties. Of that opinion, he says that any suggestion that the plaintiff needed to avoid repetitive, bending, twisting or squatting and would only be fit for supervisory, administrative or educational roles, was an assertion that “… cannot be substantiated from an orthopaedic perspective”. Dr Sommerville noted that a solid arthrodesic sacroiliac joint “… would not cause symptomatology consequent upon heavy lifting, repetitive bending, twisting and squatting, the use of heavy machinery”. Dr Sommerville expressed the view that there was simply no reason why, after a successful operation of the kind to which he referred, the plaintiff would not be fit to return to all of his previous work.

23. [201]

    In his second report, Dr Sommerville was also critical of the Statement of Particulars which had been filed on 15 August 2018. Included in his review of those particulars was the material under the heading “Particulars of Future Economic Loss”. He tendentiously compares the claims in the Statement of Particulars to Dr Cleaver’s view that the plaintiff had had “an excellent result” after the operation. He also proffered comments on a letter between lawyers providing particulars of a number of matters including the plaintiff’s claim for injury, loss and damage. He also commented on the plaintiff’s affidavit which had been filed on 15 August 2018. He concluded his second report by reiterating the following:

24. [202]

    The joint oral evidence of both doctors had the result that each seemed to maintain their view. Some clarification of expressions which had been used resulted.

25. [203]

    It became apparent that Dr Cleaver, when using the phrase “injury to his left sacroiliac joint” or similar expression, was not talking about or describing a high impact injury which had resulted in a disruption (ie displacement) of the sacroiliac joint. Equally, it became apparent that when Dr Sommerville was talking about an injury to the sacroiliac joint, he was only talking about a high force impact sufficient to disrupt the sacroiliac joint. Both agree that such high impact injury resulting in a significant disruption of the sacroiliac joint did not occur.

26. [204]

    It was also apparent that Dr Sommerville placed significant weight, in the formation of his opinion, on the absence of a significant high-speed impact causing a disruption to the joint.

27. [205]

    The second factor which Dr Sommerville placed a good deal of weight on, was the absence of any radiological findings. He did not accept that a low force impact leading to disfunction in the sacroiliac joint could occur without radiological findings. He did not regard the presence of gas bilaterally in the sacroiliac joint as being any reliable evidence of the existence of any injury in the sacroiliac joint area.

28. [206]

    Dr Cleaver placed some reliance on the presence of gas which he said demonstrated injury of a kind, because a normal joint which was uninjured would not show the presence of any gas on an image.

29. [207]

    But, importantly, Dr Cleaver drew attention to an article in The Journal of Bone and Joint Surgery, an American peer-reviewed publication, which it appear from the evidence had not been read by Dr Sommerville, although it had been attached to Dr Cleaver’s report of 14 March 2019. Dr Sommerville did not deal with the findings and conclusions of the article explicitly in any report which was in evidence.

30. [208]

    I find the content of that article to be helpful. It notes, for example, that the diagnosis and management of the sacroiliac joint, which is a source of potentially disabling low back pain, is both challenging and controversial.

31. [209]

    It notes that in general, images such as radiographs CT scans and MRI studies:

32. [210]

    It commends the use and diagnostic validity of intra-articular corticosteroid injections for serving as a reference standard. It notes that such injections are often attempted to help to confirm that the pain a patient feels is being generated from the sacroiliac joint.

33. [211]

    It also notes that the evidence in a series of studies suggests that such injections do not always provide definitive treatment.

34. [212]

    The article discusses various treatments and comes to deal with forms of fusion – namely an open fusion, or else a minimally invasive fusion. The operation performed by Dr Cleaver on the plaintiff was a minimally invasive fusion (“MIF”).

35. [213]

    The article provides support for a conclusion that a MIF will provide a substantial benefit to patients with an improvement in pain ratings, disability, quality of life scores and functional outcomes. It also noted that opioid use had decreased by about 30% in the group who had undergone a MIF rather than being managed non-surgically. The article is consistent with there being an improvement in a patient’s pain response without there being necessarily a complete removal of all pain.

36. [214]

    The paper, reviewing studies across a variety of hospitals and locations, including different countries, suggests that Dr Cleaver’s acceptance that the MIF he performed would result in a significant reduction in pain rather than a complete removal of it, is supported by the various studies and literature. The paper does not support the assertion by Dr Sommerville if the procedure had been necessarily and properly conducted, there would have been no pain at all and no restriction on movement.

37. [215]

    The article concludes with this overview:

38. [216]

    On the whole of the evidence, including the article to which I have just referred, I have formed the conclusion on the balance of probabilities that I should accept the diagnosis of Dr Cleaver for the plaintiff’s injuries sustained on Nauru and the ongoing disabilities of which the plaintiff complains. I do so, in summary, for the following reasons:

39. [217]

    Although relied upon as part of the formation of an overall impression of Dr Cleaver and Dr Sommerville as witnesses, my clear observation was that Dr Cleaver’s approach which was based on his regular clinical practice, was a more nuanced and thoughtful approach to orthopaedic injuries in general, and the plaintiff’s injuries in particular. Dr Sommerville’s approach was one which did not admit of any variations in orthopaedic practice. A good example was where Dr Sommerville refused to accept that if a fusion operation had been successfully performed, there should be no ongoing pain of any kind suffered by a patient. That statement does not reflect the common sense of post-orthopaedic surgical procedures where one expects and regularly observes in the course of hearing of cases of this kind, different reactions from different patients to surgery.

40. [218]

    Finally, the tone and content of Dr Sommerville’s reports, which demonstrated more of an ad hominem attack on the plaintiff’s first GP, Dr Cleaver and his clinical performance and of Dr Gillett largely on the basis of his association with Dr Cleaver, rather than expert analysis, were I thought unbecoming and inappropriate for an expert witness to engage in when providing expert reports to this Court in compliance with the Expert Witness Code. I was unimpressed with the oral evidence of Dr Sommerville which seemed to regard the mere statement of his opinion as being an adequate basis for its acceptance. I concluded that his failure to engage with the scientific article referred to above, and clearly relied upon by Dr Cleaver, was because he was not able to refute it with any clear contradictory journal articles or textbook conclusions. Rather, he relied on his own opinion, regarding it as having much greater force than the peer reviewed journal article to which Dr Cleaver referred.

41. [219]

    For all of those reasons, I prefer Dr Cleaver’s opinion, and I accept his diagnosis.

42. [220]

    The consequence of this is that the plaintiff has had a significant injury to his sacroiliac joint which has been fused, an injury to his back, and an ulnar nerve injury as well. The effects have been quite significant and have, to some extent, affected his psychological state to which it is now necessary to turn.

The Plaintiff’s Psychological State

1. [221]

   The plaintiff was reviewed by Dr Stephen Huntsman, a consultant psychiatrist, who reported to his solicitors on 24 September 2018. In that report, which was admitted without objection and the author was not required for cross‑examination, Dr Huntsman diagnosed the existence of a Post‑Traumatic Stress Disorder (“PTSD”) of mild severity, which was chronic and, as well, a major depressive disorder. Dr Huntsman concluded that the PTSD was a consequence of the fall which the plaintiff sustained on Nauru and the subsequent treatment for his injuries. He concluded that the major depressive disorder was a consequence of the plaintiff’s chronic pain, physical impairment, loss of career and relationship difficulties arising as a result of his physical injury sustained in the fall.

2. [222]

   In that first report, Dr Huntsman thought that the plaintiff’s symptoms of PTSD would be likely to settle substantially over one to two years, with minimal long‑term symptoms.

3. [223]

   He thought the prognosis for the plaintiff’s major depressive disorder was less clear, with a risk of ongoing symptoms in the event of continued back pain or the plaintiff’s failure to establish a satisfactory alternative career path.

4. [224]

   Dr Huntsman thought that the plaintiff would benefit from some antidepressant medication and may, if his condition was exacerbated, require assessment and review by a consultant psychiatrist. Dr Huntsman was of the view that the plaintiff would benefit from Cognitive Behaviour Therapy provided by a suitably qualified psychologist for a minimum of 12 sessions or so.

5. [225]

   When Dr Huntsman reviewed the plaintiff for a further report of 30 September 2020, he expressed the view that the plaintiff’s PTSD had largely resolved with infrequent symptoms. He did not think that those residual symptoms met the criteria for PTSD, and he concluded that the plaintiff's condition was in remission.

6. [226]

   He noted however that the plaintiff’s major depressive disorder, whilst it had continued, was now in substantial remission. He noted that the plaintiff had ongoing symptoms of depression and anxiety which were reactive to his chronic pain and the permanent loss of his preferred long-term career options and recreational activities.

7. [227]

   In his final report of March 2021, Dr Huntsman remained of the view that the plaintiff was suffering from a chronic adjustment disorder with depressed mood and anxiety and that his condition had deteriorated. He thought he would remain vulnerable to symptoms of depression and anxiety into the future in the event that he failed to recover from his physical injuries.

8. [228]

   Dr Huntsman remained of the view that the plaintiff would benefit from more intensive treatment, including psychological therapy.

9. [229]

   Dr Huntsman concluded that the plaintiff would not be able to return to his employment in the security industry, even if he recovered from his physical injuries, because he had a loss of confidence and ongoing fear of injury.

10. [230]

    The defendant had the plaintiff examined on one occasion by Dr Alfred Chung, who was also an expert psychiatrist.

11. [231]

    The psychiatrists engaged in a joint conclave and produced a joint report dated 23 September 2020.

12. [232]

    Dr Chung only saw the plaintiff on one occasion.

13. [233]

    The psychiatrists were not called for cross-examination and the joint report was tendered. Both parties accepted that there was no significant difference between the psychiatric opinions.

14. [234]

    It is sufficient to quote from the joint report. It contained the following:

15. [235]

    I am satisfied that, based on these opinions, and the evidence given by the plaintiff, I should find that as a consequence of the fall, the plaintiff suffered from PTSD, the symptoms of which resolved over a period of about two years. I am also satisfied that I should find that he suffered a major depressive disorder which, after a period of about four years, had improved so as to result in the conclusion that he had an adjustment disorder of the kind described. I also note Dr Huntsman’s opinion that it would have an ongoing effect in circumstances where the plaintiff continued to have pain and to have difficulties in his employment.

16. [236]

    On the basis of these diagnoses, it is appropriate now to proceed to an assessment of damages.

Post-Fall Work History

1. [237]

   In March 2017, the plaintiff returned to work. He was allocated his old room in E Block and was scheduled to work a week of night shifts. Initially, he experienced mild discomfort, but this developed into “excruciating” pain by the time he was scheduled to work his final shift. On advice from the workplace psychologist, he did not complete his shift that night.

2. [238]

   On return to Brisbane, his general practitioner advised him not to return to work until she gave him approval.

3. [239]

   In around April 2018, he started full-time sedentary work for a debt buying company as a customer relationship manager. He says the job and the commute caused him significant lower back pain. After his employer declined to allow him to move to part-time hours, he resigned.

4. [240]

   In August 2018, the plaintiff commenced working approximately 27.5 hours per week selling lottery tickets over the phone. Although the shorter shifts were more accommodating to his back injury than his previous role, he had ethical concerns about the nature of his work, which exacerbated his mental health issues. He resigned after just a few weeks.

5. [241]

   Between September 2018 and April 2019, the plaintiff worked in real estate. He worked for several different agencies but had to eventually give up this work because it was too physically and mentally straining, which would exacerbate his back injury and mental health issues.

6. [242]

   In April 2019, he commenced part-time work in the disability sector as a disability support worker. He resigned in January 2020, after he thought that he could not mentally or physically perform the duties required of him.

7. [243]

   In January 2020, he commenced work with Suncorp in a desk role, as a Recoveries and Settlement Consultant, where he has remained, at least until the time of the hearing of these proceedings in October 2022. In October 2021, he was promoted to Investigation Review Officer within Suncorp.

8. [244]

   Although his career has progressed in this intermittent way with a variety of roles, the plaintiff deposed to his disappointment after his injury in losing the career that he envisaged in the security industry. He says that he was going to use the experience he gained working at the RPC to obtain employment in security in the mining industry, which according to him “is very well paid and offers significant benefits”.

Damages

1. [245]

   It is now time to assess the plaintiff’s damages. He is 35 years old, which means that he has about 47 or 48 years of future life expectancy.

2. [246]

   I have earlier set out the evidence which the plaintiff gave about his pain and suffering and his ongoing difficulties continuing with an active life, and with his career. There is no need to repeat those matters. The fact is that, at the time of his fall, the plaintiff was a relatively young man. He was fit and had ambitions to have a fulfilling career which required a degree of physical fitness.

3. [247]

   He is now no longer able to undertake all his previous physical activities and exercise regimes. He can do them, but he has limitations with respect to the length of time during which he is able to perform the activities, for example, with walking or running a particular distance.

4. [248]

   The expert opinion is that he needs to avoid activities such as those which involve strenuous mechanical activities, including repetitive bending, twisting, pushing or pulling heavy machinery.

5. [249]

   His disabilities in the past were greater than they are now and he seems to have reached a stable condition involving, according to Dr Cleaver at the time of the joint expert report, a 20% impairment of his general activities and the ability to undertake a wide range of physical activities.

6. [250]

   He has suffered consequential psychiatric conditions which were largely resolved by the time of the hearing but, depending on his life circumstances, he may be at risk of an acute outbreak.

7. [251]

   The plaintiff will be required to take medication for his physical pain and perhaps during the period of any acute mental illness which he may suffer. He may need further physiotherapy treatments and there seems to be a possibility that he may require further injections into his sacroiliac joint.

General Damages

1. [252]

   An award of general damages should be made to compensate the plaintiff for his pain and suffering, his ongoing disabilities and all of the adverse impacts which his injuries and disabilities have had on his life.

2. [253]

   Unlike statutory schemes for damages for non-economic loss to be found in various states around Australia, this is an assessment, at large, of the appropriate sum to be awarded to the plaintiff for his pain and suffering.

3. [254]

   There are no thresholds of disability against which the plaintiff must establish his claim, nor are there any maximum “worst case” caps on damages for non‑economic loss.

4. [255]

   In assessing the sum for general damages, the Court is not obliged to reach a percentage disability when compared with a whole person impairment range.

5. [256]

   Nevertheless, in light of the fact that there are statutory schemes around Australia providing for non-economic loss, they are a relevant factor to which regard may be had in assessing the appropriate sum for damages for pain and suffering.

6. [257]

   In my assessment, the appropriate sum for general damages to compensate the plaintiff for all that he has suffered and will suffer is $300,000.

7. [258]

   Having regard to the fact that a significant part of the pain and suffering was in the past, but that the plaintiff’s ongoing disabilities (because he was a relatively young man at the time he was injured) will continue many years into the future, I would apportion the sum of $125,000 to the past for general damages.

8. [259]

   The plaintiff is entitled to interest at the rate of 2% per annum on the entirety of that sum attributed to past general damages.

9. [260]

   The period since the accident is 6.91 years and, accordingly, the appropriate sum to be awarded for interest is $17,275.

10. [261]

    Accordingly, I assess the appropriate sum for the plaintiff’s general damages including interest to be $317,275.

Past Out-of-Pocket Expenses

1. [262]

   The plaintiff’s claim for past out-of-pocket expenses commences with the sum paid for medical expenses (including his surgery) by, or on behalf of, Wilson Security. That sum is $75,026.50. In addition, medical treatment arising from his injury has incurred a repayment to Medicare in the sum of $3,802.35. This should be included in any award for past out-of-pocket expenses.

2. [263]

   The plaintiff claims a balance for past out-of-pocket expenses of $8,435. These are round amounts for pharmaceutical prescriptions, physiotherapy, travelling expenses and the cost of having his lawn mown during a period shortly after his accident when he was unable to do so himself. The plaintiff does not provide proof of any of these claims by reference to receipts or invoices or the like. Rather, he submits that the sums he has claimed are a fair and reasonable estimation of costs which he undoubtedly incurred.

3. [264]

   In my assessment, although proof is not available of precise sums which have been expended, a modest allowance should be made for these sums. I would allow $2,000 as being a reasonable sum to cover those past costs.

4. [265]

   Accordingly, the total amount I would allow for past out-of-pocket expenses (which I have rounded) is $80,825.

Future Out-of-Pocket Expenses

1. [266]

   The plaintiff makes a significant claim for future out-of-pocket expenses totalling approximately $163,000. The two most significant items being claimed are the sum of $50,000 for the possibility of future surgery if his sacroiliac joint minimally invasive fusion requires revision, or repetition. The second sum is $67,550 for future medication for his physical pain.

2. [267]

   Finally, a claim is made for monthly physiotherapy for the balance of the plaintiff’s life in a sum of approximately $28,000.

3. [268]

   In my view, for various reasons, each of these significant claims are over‑stated.

4. [269]

   There is no opinion that the plaintiff will certainly require future surgery. Dr Cleaver, in his reports of February 2018 and September 2020, covers the area of surgery and physiotherapy. His opinion does not suggest that future surgery will undoubtedly occur. Rather, he suggests that it is a possibility because it may be required if the fusion which the plaintiff has had turns out to be unsuccessful.

5. [270]

   On the material to date, the fusion has been a technically successful operation and has reached a stable state. I do not think that there is any assessable likelihood that the plaintiff will come to surgery in the future, and I would not be prepared to allow a sum representing a possibility which is simply speculative.

6. [271]

   I am satisfied that the plaintiff will need to spend money on purchasing medication by way of analgesia, but his requirement will be nowhere near the $50 per week sum suggested in the plaintiff’s submissions.

7. [272]

   I would be prepared to allow a global sum of $20,000 for future pharmaceutical expenses, which seems to me to be a reasonable sum for the balance of the plaintiff’s life.

8. [273]

   Equally, I do not think that the amount for physiotherapy ought be allowed on the basis that the plaintiff will require a physiotherapy session every month for the rest of his life.

9. [274]

   Undoubtedly, as Dr Cleaver says, he will benefit from some physiotherapy from time to time in the future.

10. [275]

    In my view, a proper sum to allow for this is $15,000 – which represents about six physiotherapy treatments per year on average. This suggests that perhaps, once or twice each year, the plaintiff will have an incident which requires him to take some physiotherapy for a number of sessions to remedy.

11. [276]

    I am satisfied that this is a reasonable global allowance.

12. [277]

    I do not think it is appropriate to allow for any costs associated with the plaintiff visiting swimming pools, going to the gym for sessions with a personal trainer or some other rehabilitation therapist. The suggestion for these costs comes from the report of Dr Gillet dated June 2018 and arises in the context of the plaintiff having future surgery. As I have earlier indicated, I do not regard the possibility of that being any more than speculative and, accordingly, I would not allow the sum.

13. [278]

    Dr Huntsman recommended that the plaintiff would benefit from cognitive Behaviour Therapy (“CBT”) provided by a suitability qualified psychologist. By the time of the hearing, the plaintiff had not undertaken that therapy because he had been unable to afford it.

14. [279]

    Although his psychiatric state has stabilised and he is now generally psychiatrically well, I do think that the plaintiff’s condition would be improved by having 12 sessions of CBT. The approximate cost of each session is $250.

15. [280]

    Accordingly, I allow $3,000 for the cost of such therapy in the future.

16. [281]

    The occupational therapist in her report has recommended some equipment to assist the plaintiff in his activities of daily living. I do not believe that the evidence would justify the supply of any particular aids to the plaintiff. I disallow this claim.

17. [282]

    Accordingly, I would allow the sum of $38,000 for future medical and other out-of-pocket expenses.

Past Economic Loss

1. [283]

   The plaintiff relies upon the report of the calculations carried out by an expert forensic accountant, Vincents, dated 23 March 2022 which was updated in September 2022. Both of the reports, in estimating any sum for past and future economic loss used, appropriately, net figures, thereby removing the effect of the incidence of personal income taxation. In my assessment, I will follow the same course.

2. [284]

   That report suggests that on average in the past, the plaintiff’s economic loss was in the order of $41,000 per year on average. In part, that calculation is made upon the assumption that the plaintiff would have continued to engage in his employment on Nauru with Wilson Security until 2019, when he would have switched to employment in the mining industry.

3. [285]

   The evidence in support of the mining industry assumption is scant, and I would not be prepared to make a finding on the balance of probabilities that such a course would have been followed. I accept, however, that it was a real possibility, and that the plaintiff has lost the chance of obtaining employment. That possibility needs to be valued and included in the plaintiff’s claim for the past economic loss.

4. [286]

   Making the appropriate adjustment, it seems to me that the proper calculation of the plaintiff’s past economic loss would, in a rounded sum, including the value of the lost chance, be $35,000 on average, per year. I would be prepared to allow that sum for the period to date.

5. [287]

   For the 6.91 years, the sum would be $241,850 which I would round up to $250,000, by way of a reasonable sum for the plaintiff’s past lost earning capacity.

6. [288]

   It is appropriate to allow a further sum by way of past superannuation loss. That is to say, in addition to his wages, the plaintiff would have been entitled to and would have received superannuation guarantee payments by his employer.

7. [289]

   I assess the appropriate rate at which to make allowance for those superannuation payments as being 10% of the plaintiff’s lost wages from the past. I allow $25,000 for this sum.

8. [290]

   Accordingly, in total for past lost earning capacity, including superannuation, I allow $275,000.

Future Economic Loss

1. [291]

   I am satisfied that the plaintiff’s injuries and disabilities will impact upon his future earning capacity. His injuries and disabilities will limit the range of occupations in which he can engage. They will also limit his performance in roles which are generally suitable for him. For example, his current role at Suncorp is one which is generally suited for him, but his evidence was (which I accept) that he requires to take on average about one working day per month by way of unpaid leave from his work because of the trouble he experiences from his pre‑existing injuries.

2. [292]

   On the basis of the expert opinions about the plaintiff’s condition and his experience, I accept that on the balance of probabilities such an impact will continue.

3. [293]

   Equally, it cannot be realistically accepted that the plaintiff would have worked in a fly in/fly out security role in the mining industry for the rest of his life. That was the principal assumption upon which the estimation made by Vincents in both of their reports was made.

4. [294]

   Generally speaking, changes to the plaintiff’s personal relationships and domestic arrangements, perhaps having a family in the future and other like matters, including having to adjust employment to take account of a partner’s career choices, mean that I would not accept that he would be a fly in/fly out worker for the rest of his working career.

5. [295]

   It is also not possible, on the material before me, to simply translate the amount estimated by Vincents for his past lost income for the rest of his life because, as it seems to me, he was not always going to be in the type of job and earning the sort of salary on which those figures are based.

6. [296]

   The plaintiff has a future working life of 32 years to the standard age of retirement of 67. The relevant multiplier for that period is 1079.8.

7. [297]

   It is appropriate to examine a range of damages which may accrue. If the plaintiff’s loss from the past (of about $680 per week) was to continue but lessen over that period of 32 years as the plaintiff grew older and job opportunities change, one could take three-quarters of that figure, which is approximately $500 per week, which means tha,t leaving aside vicissitudes, one measure of the plaintiff’s economic loss would be approximately $539,000.

8. [298]

   Another way of examining the loss would be to assume that had he not been injured, the plaintiff would have continued to work as a security officer doing work as a fly in/fly out worker at remote sites, such as detention centres or a mining environment, and would have earned, as I have assessed in the past, approximately an additional $30,000 over and above his existing earnings. For a period of 10 years the relevant multiplier is 451.8 which would mean that, assessed in that way for that period, his loss would be a little over $270,000. But one would then need to add a sum to represent the overall impact on his injuries and on his ability to obtain employment in the future, together with the fact that he will be required from time to time to take approximately one day per month off work because of his injuries.

9. [299]

   The better way to deal with that would be to add a general allowance by way of a buffer for any potential future loss. If one added a buffer of approximately $100,000 but deferred it for a period of 10 years, the resulting sum would be about $75,000. Combined, that would suggest a loss of about $350,000.

10. [300]

    There are many other ways in which one could estimate the plaintiff’s lost future income. It seems to me that however one broadly approaches the matter, and seeking to be fair to all parties, an appropriate sum for the plaintiff’s future lost income would be $400,000.

11. [301]

    In addition to that sum, one would need to take into account the vicissitudes of life, which are generally accepted to be in the order of 15%.

12. [302]

    Taking that matter into account, the appropriate sum to award the plaintiff for his economic loss is $340,000.

13. [303]

    The plaintiff would be entitled to an allowance for superannuation on that sum. In my view the appropriate allowance is 10%. This would increase the sum for future economic loss to $375,000.

Orders

1. [304]

   I make the following orders:

   1. (1)

      Judgment for the plaintiff against the first defendant in the sum of $1,086,100.

   2. (2)

      Judgment for the plaintiff against the second defendant in the sum of $1,086,100.

   3. (3)

      Defendants to pay the plaintiff’s costs of the proceedings.

   4. (4)

      Liberty to either party to apply to the Court for any different costs order.