- Notable Unreported Decision
SUPREME COURT OF QUEENSLAND
Palmer & Anor v Finnigan & Ors  QSC 64
BRIAN GRAHAM PALMER
GAYE LESLEY PALMER
JOHN GORDON HEMPSTALK
(first third party)
CHRISTOPHER DAVID ENGLISH
(second third party
GOLD COAST CITY COUNCIL
(third third party)
6033 of 2004
Supreme Court at Brisbane
9 February 2010
2, 3, 4, 5 November 2009
final submissions 2 December 2009.
A Lyons J
The claim is dismissed
TORTS – NEGLIGENCE – DANGEROUS PREMISES – INJURIES TO PERSON ENTERING PREMISES – INVITEE – CONTRACTURAL ENTRANT – LIABILITY OF OCCUPIER GENERALLY – where contractor fell off balcony when railing collapsed – whether occupiers breached duty of care – whether risk was foreseeable – whether in failing to address unknown defect injury could be foreseen
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Baker v Gilbert  NSWCA 113
Emery & Anor v Foot & Anor  QCA 404
Hackshaw v Shaw (1984) Australian Torts Reports 80 312
Jones v Bartlett  CLR 166
King v Stewart (1994) 85 LGERA 384
Lynch v Brzozowski, Supreme Court of ACT, 19 June 1997 unreported
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449
Short v Barrett NSWCA, 5 October 1990, unreported
Stannus v Graham (1994) Australian Torts Reports 81 293
J Webb for the plaintiffs
D Savage SC with P Corkery and A Salzmann for the first and second defendants
P Woods with G Hampson for the second third party
K Howe for the third third party
Robins Watson & Co for the plaintiff
Deacons Lawyers for the first and second defendants
Hynes Lawyers for the second third party
Michael Sing Lawyers for the third third party
A LYONS J
The background to the proceedings
- On 10 July 2001 Bryan Palmer (Palmer) was at the home of Russell and Jessica Finnigan on the Gold Coast, to dye their carpet. At the completion of the work, he was passing a hose to the ground floor from a balcony on the first floor, when a balustrade collapsed as he leant against it for support. The balustrade was connected to the floor of the balcony into base plates, but was not attached to any side wall.
- Palmer sustained a fracture/dislocation of the right elbow and a head injury as a result of the fall of some five metres from the balcony as well as experiencing cervical spine pain. He alleges that his injuries were caused by the negligence and/or breach of duty of the Finnigans in their occupation, control and management of their residential premises.
- At the date of injury, Russell Finnigan was the owner and he and his wife Jessica were the occupiers of the premises (the first and second defendants). The defendants have issued third party notices against three parties. The first third party is John Hempstalk, whom Russell Finnigan purchased the property from in 1993. The second third party, Christopher English, conducted a business of manufacturing and erecting balustrades. Hempstalk says he engaged him to manufacture and erect the balustrade at the premises between July 1987 and April 1988. The Gold Coast City Council is the third third party who signed off on an inspection certificate in relation to renovation works at the premises in May 1988.
The plaintiff’s claim
- The first plaintiff’s action against the defendants is based in negligence and the basis of that action is that the defendants:
- failed to make an adequate inspection of the balcony railing so as to ensure that it was safe and secure for the purposes of which it was erected, namely to act as a physical and security barrier to prevent anyone from falling from the first floor balcony to the deck beneath;
- knew or ought to have known that the railing was secured only at its base plates and failed to fix the vertical posts to the side walls of the balcony, at a height which would prevent the railing from tending to turn about those points, thereby allowing the railing to free itself from its attachments;
- saw or ought to have seen that the railing was attached to the balcony in such a way that it would not have adequate ability to support itself if it were leant upon by anyone who may frequent the balcony and failed to take any adequate steps to more securely attach it;
- saw or ought to have seen from cracking in the tiles leading to the bolts securing the base of the railing that the railing was subject to movement and failed to take any or any adequate steps to ascertain whether the railing was sufficiently secured so as to support the weight of anyone who might reasonably be expected to lean or exert forces on it;
- knew that they lived in an area, namely the Gold Coast region, where there where numerous low, medium and high rise buildings from which it was reported from time to time that persons fell from balconies and failed to take any adequate steps to ascertain whether or not the railing was attached to the house in such a way that would support the weight of anyone who may lean upon or over the said railing.
- The second plaintiff’s action (Gaye Palmer) was settled prior to trial. The action against the first third party was also settled and they were released from the proceedings at the trial. At the commencement of the trial, a Consent Order was made in the following terms:
- the second and third parties be bound by the judgment given by the Court in the proceedings between the first and second plaintiffs and the first and second defendants;
- the evidence in the proceedings between the plaintiffs and the defendants be evidence in the proceedings between the defendants and the third parties;
- the third parties have leave to cross-examine the plaintiffs and any witness called by them in relation to the plaintiff’s action against the defendants;
- the third parties have leave to defend the plaintiff’s claim against the defendants.
- The defendants also settled their proceeding against the third third party and a Notice of Discontinuance was filed. In relation to the proceedings between the defendants and the third parties, there was an agreement between the parties that the third party claim be adjourned to a date to be fixed with costs reserved.
The factual circumstances surrounding the injury
- Mr Palmer gave evidence of the nature of his business and the events which gave rise to his injury. He outlined his actions on the day in dyeing the carpet and how he had brought hoses into the house and had run the extraction hose for the dyeing process over the balcony and back down to the extraction unit on the ground. The hose was similar to a pool hose and weighed about 10 kilos and was about 20 metres long. He had tied it off with an octopus strap on the balustrade. He was assisted on the day by Ronald Kelly and the work had proceeded uneventfully until the end of the work, when he states that he “undid the ocky strap and threaded the gray hose through the balcony until it came to the last bit, and I lifted - I lifted it up and lent over to drop it so that it doesn’t –it doesn’t fall in the dye tank or - or fall in the extraction unit itself”. He was leaning out to drop the hose and the balustrade collapsed. He did not have any warning that the balustrade was “loose or unstable”.
- Mr Finnigan gave evidence that at the time of the accident he had lived in the house for about 10 years and had never had any concerns with the balustrading on either the front or rear balcony. He said he never had any reason to look at it or touch it and it appeared to be in good order. The front balcony, where the accident occurred, was too small for any practical use and faced the east. It was very rarely used as the larger balcony at the rear was more desirable for relaxation as it was on the water. He had observed a small hairline crack in one of the tiles on the balcony as follows:
“No, it’s just when I first moved in, I mean, I don’t have a clear recollection of the exact condition of the railing before the accident. I just have a recollection of when I first moved in because I was renting the premises and I remember thinking that wasn’t my premises and that, you know, I was a bit concerned maybe that I might get charged for that crack or something like that. So, that’s the reason I can remember the crack. As far as the preceding 10 years and whether I lent on the balcony or didn’t, or whether this or that, you know, I really just don’t have a clear recollection.
You said preceding. Do you mean succeeding? -- Yeah, after.
Following? -- Following. Following, yeah, you know.
Right. Well, are you sure there were only cracks around one post, or were there cracks around another post? -- Well, when I first moved into the house, there was mostly just the cracks around the one area.”
- Mr Finnigan stated that he had no specific recollection of leaning on the balustrade, although he could recall being out on the balcony. Whilst he can recall checking the balustrade on the rear balcony which they occupied, he has no recollection of ever checking the front balustrade. He assumed it was safe. He stated that he would not have thought to check the safety aspects of the balustrade when he was asked by Palmer if the hoses could be brought in that way. He indicated that he thought his major concern would be whether the hoses would damage the balcony by being dragged over it. Mr Finnigan stated that after the accident he had all of the balustrading on the house replaced when it became clear that the front balustrade was not suitable to be refitted.
- Mrs Finnigan also gave evidence and indicated that she had lived in the house for about three years prior to the accident. She considered that the balustrading looked normal and that she did not see any evident defects. Whilst she had stood on the balcony at times to smoke and had leant against the balustrade, she had no recollection that it ever moved. She also stated that at no time did she do any testing of the railings by shaking them and she had not noticed the absence of side attachments to the railings. Mrs Finnigan indicated that she had not in fact even noticed that the tiles were cracked.
The nature of the balustrade
- A “Joint Report of Experts” was prepared in May 2009. The experts were Justin O’Sullivan, Dr Justin Ludcke and Dr Frank Grigg. The Joint Report indicated that there was agreement on a number of uncontroversial factual matters which included the following:
- The balustrade consisted of four support posts with top and bottom railings with infill balusters;
- The four support posts were attached to the floor of the balcony with eight fasteners passing through base plates welded to the bottom of the support plates;
- All eight fasteners failed following the incident;
- The balustrade had a dog-leg and was not straight;
- The balustrade was most likely constructed from aluminium but it cannot be ruled out that it was constructed from steel;
- If the balustrade was constructed from aluminium, some flexibility or springy movement would be expected at the top of the balustrade due to the absence of a fixing point;
- There would be less flexibility if it was constructed from steel;
- The base plates were not noticeably bent as a result of the balustrade failure;
- A pull out force of 5.04 kN is considered a reasonable estimate to meet the design requirements of AS1170 (Part1 -1981);
- The method of attaching the balustrade to the floor of the balcony was inadequate to meet the loading requirements of AS1170;
- The presence of a cracked tile does not necessarily indicate concerns of a structural nature;
- Looseness of the balustrade relative to the balcony is likely to be the result of one or more fasteners being partially pulled out of the concrete and tile or one or more fasteners losing grip with the concrete and tile but remaining fully embedded in the hole whilst loose;
- Due to the method of fastening, the head of a bolt in a loose fastener may or may not protrude above a base plate;
- If there was looseness in the balustrade, the forces required to identify the looseness are likely to be significantly lower than the forces required to identify flexibility;
- If the bolts were secure, the balustrade would appear to be flexible under the application of a moderate degree of outward force and the amount of movement would vary, depending on the magnitude of the force applied. The degree of flexibility is not able to be quantified without the dimensions and material properties of the balustrade. Some flexibility would be noted with the application of a 10kg outward force, but the deflection is likely to be measured in millimetres rather than centimetres; and
- The lack of any attachment between the top rail and side walls would have been readily apparent to a person with relevant knowledge (ie architects, engineers, builders, certifiers etc) during any visual inspection.
- That report, however, was also the subject of a number of objections, including objections to conclusions which were not matters for expert opinion. Many of the opinions contained in the Report were excluded by agreement between the parties during the trial. The Joint Report also states that any looseness of the balustrade would have been apparent to the Finnigans during a visual inspection (bolts being raised above base plates) or during light contact. That conclusion is clearly a matter of fact for the court to determine on the evidence and this conclusion should therefore be excluded from the report. The Joint Report also states that the absence of an attachment between the top rail and side rail walls would have been readily apparent during a visual inspection by lay persons such as the Finnigans. This is also a matter of factual inquiry for the court and not a matter of expert opinion. Furthermore, there were views as to what a “reasonable homeowner would do in the circumstances”. It is clear that that question is a question for the court to determine and significantly, I do not consider that that determination falls within a recognised area of expertise.
- The Joint Report specifically referred to the fact that the type of plastic anchors used was not actually known and that information on the pull out strength of the plastic anchors was not known. It was also not known whether the head of a bolt would protrude above a base plate.
- A series of conclusions about the pull out strength and anchorage support required were also made based on scenarios which relied on the presence of facts which had not been proved. I have not therefore, found those conclusions helpful and have not relied on those specific findings.
- In simple terms, however, it would seem that the submission is that the balustrade was not properly installed as there were inappropriate lengths of bolts used and that the bolts were recessed into inappropriate plastic sleeves or anchors.
- The forensic engineering report by one of the joint experts, Dr Frank Grigg, dated 22 April 2009, essentially agreed with the joint findings set out above, however, his conclusions were that:
- the method of attaching the balustrade to the floor was grossly inadequate;
- the manner of attaching the balustrade to the floor relied on the effectiveness of the functional grip of small plastic anchors;
- in his view, the lack of attachment between the top rail and the side walls would have been apparent;
- it would have been expected that the rail would have responded in a flexible manner under the application of a very moderate force; and
- there was a significant risk that in the event of moderate outward force to the top rail, the anchors would be disturbed leaving the balustrade loose at the anchor points.
- Dr Grigg gave evidence that the usual way an expert would check a railing was by giving it “a bit of a shake” and that to prove compliance with a standard “you would need a spring balance”. He testified that the relevant standard which applied was AS1170 of 1981 and agreed that the relevant force for that standard was .56 of a kilo-newton but that most people “would find it fairly difficult to apply a force of that nature horizontally”. He also agreed that a person leaning on a balcony would not necessarily detect looseness. He stated that if one simply leant down on a railing, the rail could in fact withstand the “vertical force quite readily” as there may be no horizontal forces involved.
- Dr Grigg’s view therefore, was that it should have been apparent that there was flexibility or looseness in the balustrade, that there was a broken tile and that there was no attachment between the top rail and the side walls.
- In my view, this opinion is not in fact borne out by the evidence. The plaintiff was on the balcony and near the rail on at least two occasions prior to the accident, once when he affixed the hose to the bottom of the rail and on a second occasion when he undid the strap before he stood up to throw the hose down to the deck. His evidence was that he did not notice any looseness or flexibility and neither did he observe anything “peculiar with the balcony” prior to it giving way. As Mr Savage SC, counsel for the defendants put it in submissions:
“Mr Palmer dragged the hose through. If one accepts that he dragged it through the balustrade and tied up with the Octopus strap, he’s there, he’s inches away from seeing the bolts. If the bolts are pulled out, he would have seen it. If it was loose, he would have seen it. If when he got up and lent over the balcony it was loose, he would have felt it.”
- Mr Palmer stated that he had also checked the balcony out visually when he gave the quote and he states that on that occasion he did “not detect any problem”. Any flexibility or looseness was clearly not apparent to him on a visual inspection.
- Mr Finnigan’s evidence was that whilst he observed the cracked tile, he was not aware of any looseness or flexibility in the balustrade and neither had he observed it. Mrs Finnigan’s evidence was that she had leant against the rail and it had not moved, she had not noticed the lack of side attachments or any flexibility and she had not, in fact, noticed the cracked tile.
- Mr O’Sullivan, a physiotherapist, ergonomist and safety consultant was one of the authors of the Joint Report. He gave oral evidence and stated that Mr Palmer had indicated that he leant lightly on the rail when it gave way and that his first encounter with the rail was a light touch or slight lean on the bottom rail when he first lowered the hose at the start. Mr O’Sullivan also gave evidence in relation to the forces that are applied by the body in certain positions.
- Mr Palmer, however, did not give detailed evidence as to the position of his body in relation to the rail when it gave way. The position of Palmer’s arms, feet and the trunk of his body relative to the rail, or even the mechanics of how he actually stood up, is not known. It is clear that the precise mechanics of the fall have not and cannot be described. The other balustrade did not collapse, nor, on Mr Finnigan’s evidence, did it give signs of looseness or flexibility.
- Having considered the evidence, I consider that the following factual matters were established on the evidence:
- neither defendant had noticed any problems with the balustrade on either balcony;
- the balustrade appeared stable;
- there had been no problems with either balustrade during the 10 years the defendants were in occupation prior to the accident;
- the first defendant had noticed a cracked tile on the bedroom balcony;
- the plaintiff had provided a quote and viewed the premises prior to performing the work;
- the plaintiff had tied a 10kg hose to the balustrade at the commencement of the work and had not noticed anything to indicate it was loose or unstable;
- at the end of the work, the plaintiff untied the bottom strap connecting the hose to the balustrade and stood up. He leant on the balustrade in the process of doing this, but the precise position of his body relative to the rail is not known;
- the experts agreed that the cracked tile did not indicate structural problems;
- the balustrade was constructed with only base plate supports;
- there is no evidence that the Australian Standard required the balustrade to be fixed to vertical walls on either side;
- the renovations had been carried out by workmen and the renovations to the premises had been approved by the third third party, the Gold Coast City Council; and
- the balustrade gave way and the plaintiff fell, but the precise mechanism of the fall is not known.
- I do not consider there is any evidence that there was, in fact, any flexibility or looseness in the balustrade prior to the accident. There is no evidence that even if the balustrade was flexible or loose, that it was evident. There is simply no evidence of any looseness, instability or flexibility in the balustrade prior to the accident such that anyone noticed it, let alone became concerned about it. Neither is there evidence that the bolts were raised or loose.
- I do not consider there is any evidence that the defendants had noticed anything about the anchors, nor that they had any concerns about the anchor points or the integrity of the anchors prior to the accident. There was a single crack in the tile, but the agreement of the experts is that this was not necessarily cause for concern and the defendants did not, in fact, have any concerns because of this. I do not consider there was any reason for the defendants to doubt the integrity of the anchors on the balcony prior to the accident. The essence of the plaintiff’s case is that the balustrade must have been loose and it must have been observably loose. I am not satisfied that this has been established on the evidence before me.
- Accordingly, I am not satisfied that it has been established that the defendants were aware of any defects in the balustrade prior to the accident. Furthermore, I am not satisfied that it has been established that there were any warnings that there were such defects prior to the accident on 10 July 2001.
- The allegations against the defendants are that essentially, they failed to make an adequate inspection of the balustrade to ensure it was safe, that they failed to affix the balustrade to the side walls when they should have done so, that they ought to have ensured that the railing was attached in such a way as to provide adequate support if it was lent against, they ought to have taken some steps when they observed the cracked tile and that, given they lived on the Gold Coast, they should have been aware that people fell off balconies.
- The relevant duty was discussed by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna and clearly the obligation on the defendants was to take reasonable care to avoid the risk of foreseeable injury to a person lawfully on the premises. In deciding whether there has been a breach of the duty of care it is necessary to determine whether a reasonable man in the position of the defendants would have foreseen that their conduct involved a risk of injury to someone like the plaintiff. If so, it is necessary to determine what a reasonable man would do by way of response to the risk posed.
- What is reasonable, of course, will vary with the circumstances of the entry onto the premises. In Zaluzna the High Court adopted the reasoning in Hackshaw v Shaw, where Deane J held that:
“... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances, including the fact of the defendant’s occupation of premises and the manner of the plaintiffs’ entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.” (my emphasis)
- In Stannus v Graham the NSW Court of Appeal held that an occupier of residential premises has no duty to inspect the premises for hidden dangers. Priestley JA stated:
“Before a person can make another legally liable for an accident such as befell Mrs Graham in the present case, the first person must show that the accident was caused by the failure of the other to take reasonable care, (Australian Safeway Stores v Zaluzna (1987) 162 CLR 479) or, if the injured person was a contractual entrant, by the failure of the other to make the premises as safe as reasonable care and skill could make them, (Watson v George (1953) 89 CLR 409). The second way of putting it may, since Australian Safeway Stores was decided, be the same as the first. Either way, the injured person must show some fault in the other, consisting of a failure to take reasonable care, causing the damage.
In the present case I cannot see that the facts in evidence at the trial showed any fault on the part of the owner of the premises. Mrs Graham and her husband said the step on which she fell was loose on the day she fell. There was no evidence that it had been loose before then. There was evidence from which it appeared it had not been loose before then. There was certainly no evidence that either Mrs Stannus or her caretaker knew or should have known the step was loose before the accident. Ordinary experience does not suggest the steps were of a kind needing special testing or inspection from time to time, or needed a handrail, nor was there any evidence to that effect.”
- The decision of the NSW Court of Appeal in Short v Barrett, involves a very similar factual scenario to the present. There, a timber deck gave way causing a guest at Dr Short’s birthday to fall to his death. The owners had bought the house some time before and the balcony existed at the time of purchase. The rails on the front of the balcony were bolted to metal posts, but the rails at the north and south ends were not bolted at any point and where the rails met the fixing was by nails only. Meagher JA held in relation to the owners:
“Neither was a tradesman, and neither was a skilled house handyman. Neither had anything to do with the building of either the house or the balcony. Neither understood carpentry or similar matters. Neither had actual knowledge of how the balcony was constructed, or of whether nails or bolts had been employed at its several junctions. It had never occurred to either of them that any part of the balcony might be unsafe.
It must be, and was conceded that both Dr and Mrs Short knew that: the purpose of railings around a balcony is not cosmetic but to prevent people from falling off; if anyone did fall he would sustain serious and possibly fatal consequences; and, in a general sense timber deteriorates when exposed to weather. It must also, I think be conceded that if a person were minded to undertake the task of ascertaining whether the junctions were affixed by bolts or nails he could have discovered that fact; however no occasion ever arose for essaying this task. In my view, a householder in the position of Dr and Mrs Short is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they actually know it is unsafe or else receive a warning that it may be unsafe.”
- I consider that the authorities support the submission that the defendants were under no duty to inspect their premises for the purpose of discovering unknown or unsuspected defects before the plaintiff entered the premises. In King v Stewart a defect in a balcony rail was not visible to a home owner. In that decision, the NSW Court of Appeal found that there was no liability as a result of a failure to seek expert advice in relation to the safety of the railing because there was no reason to believe that such advice was required. The Court of Appeal confirmed the primary judge’s findings, with Sheller JA (with whom Priestly JA agreed) stating that:
“…in the absence of some indication of instability or a bolt or a bracket standing proud or some other indication that something might be amiss he did not think that an ordinary reasonable householder possessing ordinary reasonable skills at minor household repair tasks, such as Mr Stewart, would be or could reasonably be expected to engage and pay for expert advice in relation to a problem he had no inkling existed.”
- Similarly in the NSW Court of Appeal decision of Baker v Gilbert, Ipp JA held that it is only when an occupier knows or ought to know of the existence of a defect that the obligation to make repair is enlivened. It would seem therefore, that it is only in cases where there are indications that something might be amiss such that they constitute “ample warnings” that the obligation to repair arises. This approach was also endorsed in the Queensland decision of Emery & Anor v Foot & Anor.
- In Jones v Bartlett the High Court held that the landlords were not in breach of their common law duty to the tenants’ son. It was specifically held in that decision that there was no duty to take “affirmative action” in relation to a glass door which was the cause of the injury in that case because it was not a dangerous defect and that a system of inspection for defects is not required by a landlord. Although this decision is distinguishable on its facts in that a lease existed and it was not merely the occupiers’ liability, the court determined that even a landlord should bear no greater common law burden than an ordinary householder. As Gummow and Hayne JJ stated in their joint judgment:
“Mr Fryer (who was the appellant’s expert witness) gave uncontroverted evidence that an ordinary person could not tell whether glass was laminated safety glass or not. There was no evidence to suggest the respondents knew that the glass in the door was annealed; or that they knew of the risks involved in using annealed glass; or, indeed, that there existed different types of glass. Commissioner Reynolds also found that there was no evidence that the respondents knew of the Australian Standards. In such circumstances, ‘ordinary reasonable human conduct’ did not require the taking of steps to ascertain the existence of a dangerous defect which the respondents did not, and had no reason to, suspect might exist.”
- It is therefore clear that there are a number of cases which follow Australian Safeway Stores v Zaluzna. In 2003 in Baker v Gilbert the NSW Court of Appeal reviewed the authorities and outlined the relevant legal principles where householders are the occupiers:
“A review of the abovementioned authorities indicates that there is no rule of law to the effect that householders, who do not know of the existence of a defect in their property that might cause danger to lawful visitors – but who are aware of circumstances which would alert a reasonable person to the danger from the defect may, without negligence on their part, ignore the existence of the defect. The measure of the discharge of the duty of care owed by occupiers to visitors remains what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk. The circumstances may well require, by way of reasonable response, an inspection of the property (or part of it), and a removal or repair of the defect.”
- The defendants submit that given the relevant applicable law, the plaintiff’s case, as it is pleaded, cannot be sustained and must therefore fail. I agree with this submission.
- Whilst there was clearly a crack in one tile on the balcony, this was not indicative of any structural defects in the balustrade, neither was it indicative of any construction defects or design faults in the balustrade. The defendants were entitled to assume that the premises were safe. This conclusion is based on the following specific findings:
- there were no signs or any significant warnings indicating that there was any defect such that it was obvious to a normal householder;
- the balcony was rarely used because of its small dimensions and inferior outlook; and
- neither defendant had any relevant experience or training in safety, building or construction;
- the work on the balustrade had been carried out by tradesmen.
- On the basis of the principles outlined in Zaluzna, I do not consider that there was any legal obligation on the defendants to investigate hidden defects. On that basis, there was no duty to effect repairs, or to obtain a safety expert’s opinion as to the structural integrity of the balcony railing when there was no warning that there was a possible defect in the balustrade.
- The plaintiff’s claim must fail.
- Whilst I consider there has been no relevant breach of duty, I am required to assess the plaintiff’s damages.
- When he fell, the plaintiff states that there was a brief period that he cannot recall and then he felt extreme pain in his back, shoulders, neck and arm. He was taken to hospital by ambulance and was discharged two days later on 12 July 2001. His injuries included a fractured right elbow. He also had extensive bruising over the top half of his body. During his hospital admission, his elbow was manipulated and the fracture was set. When he returned home he needed assistance to dress, wash and toilet himself. Mr Palmer initially had physiotherapy and then encountered problems with his elbow as the bone fragments made it lock up. This necessitated a further operation, which involved cutting and cleaning out the elbow, as well as a five day stay in hospital. He also developed an infection and then developed calcification in his right elbow which required an operation for the removal of the radial head of the elbow. He also needed to use a cast after the operation to try and straighten his arm. Despite this procedure, his elbow still locks up and he feels the movement in his arm is restricted. He considers he has also lost some strength in his right arm and tends to carry things in his left arm. He no longer swims, rides a bike or plays tennis like he used to.
- The plaintiff’s case is essentially that he suffered a serious injury eight and a half years ago which has not improved but has in fact got worse. Mr Palmer states he has continuing neck pain and headaches, as well as soreness in his shoulder, elbow and back. He takes about 10 Panadol a week, as well as Tramodal, Mobic, Endep and at times a sleeping tablet, Meloxicam.
- Mr Palmer gave evidence that his injuries make it difficult for him to sleep at night and he is no longer able to clean the pool, mow or do garden maintenance due to pain. He also states he has difficulty with some aspects of dressing, including putting on his socks. He relies on his wife and sons to do many of the chores he previously performed, which takes them about two hours a week. He can do minor work on his car, such as checking the oil and wiping the windows.
- Mr Palmer considers that the injuries have made him irritable and depressed and have put a strain on his marriage, as have the consequential financial difficulties. He was unable to work for a long time due to the pain from his injuries and only obtained full time employment as a driver/courier for Kalwun Health Service in March 2007. He works 38 to 40 hours per week and earns $680 net per week or $42,000 per year.
The medical reports
- The orthopaedic surgeons, Dr David White, Dr John Morris and Dr Paul Pincus provided reports. Dr Morris and Dr Pincus gave oral evidence, however, Dr White was unable to be contacted to provide evidence. The plaintiff placed reliance on his report which was dated 29 October 2003.
- The medical reports indicate that the plaintiff suffered a posterior dislocation of the right elbow, with a fracture to the radial head. In September 2001, he was readmitted for debridement of scar tissue around the joint and on 29 May 2002, the radial head was excised. He also suffered a neck injury and the x-rays taken in 2003 indicate that he had some pre-existing degeneration in the cervical spine, which was aggravated by the accident. The weakness in the right arm makes it difficult to do heavy lifting.
- Dr Morris considers that the plaintiff has a five per cent impairment to the right arm, which converts to a three per cent whole person impairment. He considers the cervical spine impairment is five per cent, of which 2.5 per cent is due to the accident.
- Dr Pincus considers that he lacks 45 degrees of extension of his right elbow, but otherwise has quite a functional range of movement in his elbow. He also assigns a five per cent upper limb impairment and a three per cent whole person impairment for the upper limb. He assigns a six per cent impairment in relation to his neck, with three per cent attributable to the accident, which gives a total whole person impairment from the accident of six per cent.
- Dr White, in his report, assigns an impairment of 25 per cent for the upper limb, without indicating the basis for such a calculation or the scale he has applied in arriving at that figure. He also assigned a figure of five per cent as the whole person impairment as a result of the problems with his upper spine. Dr White considers he is permanently unfit for work involving heavy physical lifting, repetitive use of the right upper limb for moderate physical tasks and maintenance of the head and neck in fixed positions for extended periods of time.
- Both Drs Morris and Pincus agree that whilst the plaintiff is not able to continue in his employment as a carpet dyer, he has the capacity to work in many occupations including courier driver, taxi driver and sales work. Dr Morris considers that the plaintiff was capable of working at the time of his interview with him in February 2004, which was over two years after the accident. Both Dr Morris and Dr Pincus had viewed a covert video which showed the plaintiff undertaking his daily activities.
- I prefer the evidence of Drs Pincus and Morris to that of Dr White. Dr White was not available to give evidence at the hearing and he had not seen the video of Palmer going about his daily activities. He was also not aware he had returned to full time employment. Furthermore, I am not able to ascertain the basis for his calculation of an impairment of 25 per cent of the upper limb. It would not appear to be based on the AMA Guide 5th Edition, which is the generally accepted method of assessment.
- Dr Alan Chittenden psychologist and Dr Grieg Richardson psychiatrist, consider that the plaintiff suffers from an adjustment disorder. Dr Richardson considers that he needs no treatment, is fit for all duties and provides an assessment of one per cent impairment. Dr Chittenden considers that as well as an adjustment disorder, the plaintiff also has mixed anxiety and depressed mood and he assigns a rating of eight per cent. I prefer the evidence of Dr Richardson, as he had seen Mr Palmer on video and was able to assess him, having viewed him going about his daily activities in full time work. Dr Chittenden’s report was based on a belief that he was only working eight hours per week.
Daily activities and the video evidence
- A video was taken of the plaintiff going about his normal activities during the day. Excerpts of the DVD were played at the hearing and were also provided to Dr Morris and Dr Pincus. The full DVD was also provided as an exhibit. I consider that the video evidence indicates that whilst the plaintiff endeavours to lead a normal life and participate in work and family activities, there are indeed some restrictions in his movements and he does guard his arm during some activities, particularly lifting and carrying.
- The video indicates that Mr Palmer can drive and carry out all tasks in his current employment as a driver. He is clearly able to do light work, such as that of a courier driver or taxi driver. I would accept, however, that participation in these activities causes pain to him, given that the medical experts all agree that the injury to his elbow was “significant” and he clearly has ongoing difficulties as a result of the accident.
- Whilst the DVD establishes that Palmer can wash the windows of a car and carry out routine small tasks on a car such as filling the oil, I do not consider there is any evidence that he could carry out the sustained and repetitive activities of washing a car or mowing a lawn. It is quite clear that he cannot fully extend his arm and Dr Morris agreed that mowing would be difficult for him and that “whipper-snippering” and cleaning the pool were also heavy tasks which he might find difficult. Dr Morris considers that Mr Palmer’s need for voluntary assistance would be of a fairly minor nature, whereas Dr Pincus considers there is no need for voluntary assistance. I accept that the mowing and the cleaning of the pool are domestic activities which Mr Palmer would not be able to undertake, but that these activities would not exceed two hours per fortnight.
- Neither Drs Pincus nor Morris considered that it should be difficult for Palmer to dress or put his socks on and that any inability is not due to his injury but lack of flexion in other areas. The evidence of Dr Pincus was that his musculature in his right arm was of greater circumference than his left and was consistent with continued dominant use of his right arm. It is also clear that in relation to Mr Palmer’s cervical back condition, he had a pre-existing degenerative back condition which causes him pain and difficulty on rotation. This is unrelated to the accident.
- I consider that whilst there has been a degree of over presentation of the symptoms which Mr Palmer suffers, it is not to the extent or degree contended by the defendant.
- It is clear however, that on the evidence, Mr Palmer still suffers from some of the effects of the injury he sustained almost nine years ago. I consider however, that those long term effects are relatively modest and do not prevent full time employment or participation in most activities of daily living. He is, however, precluded from performing heavy duties in a workplace. He has been employed full time since March 2007 and has performed well during that time. On balance, I consider that the evidence supports a finding of an impairment of the whole person of no more than seven per cent, after taking into account both the physical and psychological impacts on Mr Palmer.
- Even though I have found that there has been no relevant breach of duty, it is appropriate that I assess the damages that would have been awarded if such a breach of duty was established.
- The plaintiff’s special damages, inclusive of interest, have been agreed at an amount of $8,467.55 as follows.
- In terms of general damages, the plaintiff claims an amount of $55,000. The defendant, the second third party and the third third party contend that an amount of $40,000 is more appropriate. Clearly, general damages by their very nature are incapable of mathematical calculation. As I have indicated, Mr Palmer suffered a significant and painful injury, which took some time to resolve and which has long term consequences. I will allow $50,000 by way of general damages, inclusive of interest.
Past economic loss
- Palmer is currently 55 years of age and has had an extensive work history in a variety of jobs, which he generally held for a number of years. He has worked as a bank clerk, quality control officer and abattoir supervisor. Mr Palmer experienced a significant injury with three operations, as well as a serious infection. He would therefore have needed a significant period of time for recuperation and rehabilitation. The final surgery on his right elbow was in May 2002. Dr Morris considered he was fit for work in February 2004 when he examined him. I accept this evidence, as it is a clear indication after a thorough examination that Mr Palmer was definitely fit for full time work in February 2004. Furthermore, Mr Palmer has been employed since 2007 in the type of occupation Dr Morris considered he was fit for in 2004. He should not therefore, receive past wages after February 2004.
- In terms of his taxable income in previous years the evidence establishes the following:
1998-1999 Gross Income $19,194.00, Tax $2,538.40, Net $16,655.00
1999-2000 Gross Income $28,084.00, Tax $5,570.00, Net $22,513.00
2000-2001 Gross Income $21,318.00, Tax $2,775.40, Net $18,542.60
- In terms of calculating the past economic loss, it would seem that in 2001 Mr Palmer earned approximately $400 gross per week. There is absolutely no indication that Mr Palmer would have earned in excess of this figure. I do not accept the evidence as to other employment he could have obtained if he had been able to do heavy physical work. I consider that evidence was purely speculative. I will therefore allow $400 per week from 10 July 2001 to February 2004, which is 134 weeks or $53,600, together with interest at eight per cent of $21,120. This is a total of $74,720.
Future economic loss
- Mr Palmer obtained full time employment at the Kalwun Health Service as a driver/courier in March 2007 and he works 38 to 40 hours per week as a transport officer with an income of $680 net per week. His annual salary is currently $42,000 per year. Mr Palmer is clearly unfit to continue his work as a carpet dyer and he cannot undertake heavy work. He can, however, continue his current type of employment well into the future.
- Mr Palmer is currently 55 years of age. In terms of what it is estimated Mr Palmer will lose in terms of earning capacity into the next ten years, given a likely retiring age of 65, I consider that a figure of $50,000 is an appropriate figure ($150 per week applying the five per cent tables for 10 years discounted by 20 per cent for vicissitudes). This figure is based on the fact that Mr Palmer is currently working and earning income which is commensurate with his abilities. The global allowance is based on an allowance for potential disadvantage in the open labour market as contended by the third third party.
Past gratuitous assistance
- Mr Palmer obviously required assistance during his recuperation and rehabilitation, as detailed above. I consider that his needs, particularly in the first 18 months, would have been quite high given the number of operations he needed, as well as the physical therapy which was initially required. I essentially accept the plaintiff’s schedule of past care, which indicates there was extensive assistance required until September 2002, which is three months after the last of his operations. I will, however, only allow one hour per week for mowing, which reduces that component of the claim to $6,172 and the total amount for past care to $14,400.20. I will allow $15,000.
- In my view, the total award for damages is to be assessed as follows.
|(inclusive of interest) –||$ 50,000|
|Past economic loss –||$ 52,800|
|Interest (5% for 8 years) –||$ 21,200|
|Future economic loss –||$ 50,000|
|Past special damages –||$ 8,467.55|
|Past gratuitous services –||$ 15,000|
- The figure of $197,467.55 therefore, represents the total award of damages I would have awarded, had the plaintiff established the relevant breach of duty.
- I will hear from counsel as to the form of the orders and as to costs.
 Amended Statement of Claim dated 3 August 2006 at .
 Transcript day 1 at p 37, ll 18-22.
 Transcript day 3 at p 71, ll 12-33.
 Transcript day 3 at p 74, ll 1-2.
 Exhibit 1.
 Transcript day 2 at p 61, l 10.
 Exhibit 1 at .
 Exhibit 1 at .
 Exhibit 12.
 Transcript day 3 at p 33-34.
 Transcript day 3 at p 34.
 Transcript day 1 at p 62, ll 28-30.
 Transcript day 3 at p 85, ll 15-20.
 Transcript day 1 at p 62, l 55.
 (1987) 162 CLR 479 at 487.
 (1984) Australian Torts Reports 80-312.
 (1994) Australian Torts Reports 81-293 at 61, 564.
 NSWCA, 5 October 1990, unreported at .
 Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 at 477.
 (1994) 85 LGERA 384.
 (1994) 85 LGERA 384.
  NSWCA 113.
 Lynch v Brzozowski, Supreme Court of ACT, 19 June 1997 unreported.
  QCA 404.
  CLR 166.
 Jones v Bartlett  CLR 166 at pp 218-219.
 At 220.
  NSWCA 113.
 At para 38.
 Exhibits 2 and 3.
 Exhibits 34, 35 and 36.
 Exhibits 25 and 26.
 Exhibit 5.
 Exhibit 24.
 Exhibits 19 and 20.
 Exhibits 21 and 22.
 Transcript day 3 at p 54.
- Published Case Name:
Palmer & Anor v Finnigan & Ors
- Shortened Case Name:
Palmer v Finnigan
 QSC 64
A Lyons J
09 Feb 2010
- White Star Case:
No Litigation History