Bell v Humberdross[1995] QDC 149

CIVIL JURISDICTION

JUDGE ROBIN

and

TOOWOOMBA

DATE 04/04/95

JUDGMENT

HIS HONOUR: The plaintiff was born on 24 March 1940 and suffered injury in the defendant's premises in North Street, Toowoomba, known as Toowoomba Garden Ornament Centre on 10 August 1992. The time was about 5 o'clock in the afternoon and Mrs Humberdross has said it was cloudy.

The plaintiff was the victim of what is in effect a trip wire, depicted in Exhibits 12A, 12C and 12D. The offending trap was in fact a dark coloured chain used to steady a post to which it was affixed at roughly head height, running to a piece of box steel forced into the ground at an angle. The ground in question has been covered with what was described as blue metal which, like the other physical features depicted in the photographs, made the chain difficult to observe. The plaintiff had been at the premises only once before on a dark wet evening and did not know the chain was there.

Mr and Mrs Humberdross were aware it constituted a danger to customers using that part of their premises to examine an impressive range of attractive garden ornaments on display. Their technique for avoiding injury to customers was to keep urns, pots and either items they had for sale in the vicinity of the chain. Unfortunately, because of sale of items or some other reason there was no such protection in place on the day of the plaintiff's accident. Having her attention fixed on the defendant's interesting display of wares, which doubtless was the defendant's general intention, the plaintiff was not paying attention to the ground and she tripped over the offending structure and in some way fell.

I respectfully agree with the approach of the Court of Appeal in declining to find contributory negligence against a plaintiff in somewhat similar circumstances in Franz v. The Commissioner for Railways, Appeal 79 of 1991, 27 July 1992.

I am comfortably persuaded that the defendants are guilty of negligence on the tests which nowadays apply. It is common ground that these emerge from Australian Safeway Stores Proprietary Limited v. Zaluzna 1987, 162 CLR 479 at 488.

It is convenient to deal at this point with the defendants' argument that the evidence of Mr Smolakovs and his report, provisionally admitted as Exhibit 20, ought not to be received. Reliance is placed on Taylor v. Harvey 1986 2 Queensland Reports 137 at 143-44. I agree with Mr Hoare's submission that the evidence is, in this instance, not admissible.

I generally find the evidence of Mr Smolakovs, and others working in his field, extremely helpful, particularly in master/servant cases. This is the first occasion on which I have been driven to the conclusion, which I reach quite easily, that in this instance the “expert” is expressing an opinion on an obvious matter which calls for the Court's decision, the Court being well placed to give an answer unaided. It would appear to follow that on taxation the plaintiff should not be entitled to costs of obtaining and adducing that evidence.

The precautions which Mr Smolakovs suggests the plaintiff could have taken to avoid the accident have in fact already been taken by them, and are pictorially represented in Exhibit 12B. The chain has been covered by a light coloured pipe of some kind and the box steel is housed in a suitable covering.

When the plaintiff fell she injured her chest on the left-hand side, and although there may have been doubt expressed about it somewhere in the evidence, I think she did fracture her ribs. She also injured her left knee when she fell heavily on it; the skin was broken and I accept her evidence that pieces of metal became embedded in her leg.

The injury which caused the plaintiff more concern at least initially, was that to her upper body. She had a few years before suffered from breast cancer and undergone a partial mastectomy. A lump developed which one or both of the doctors she saw in Charleville thought it might have become infected; the plaintiff was understandably concerned that her cancerous conditions might be revived.

She was advised to see a number of specialists and did so necessitating travel from Charleville, where she was living at the time, to Toowoomba and Brisbane, which accounts for the rather large quantum of agreed specials in a large measure. The plaintiff's treatment for her cancer had involved excision of part of her lymph glands, and I think this must have produced some weakness in the muscularture of her left upper arm. This did not daunt the plaintiff, however. She has an impressive record of employment, both before and since her early marriage.

She is an extremely presentable woman as well as resourceful and energetic. After her cancer she found herself accompanying her husband, who was a wool presser, in much of his work, taking on the responsibilities of a shearer's cook herself. That employment came to an end after an accident on Mr and Mrs Gibson's property in 1990 or 1991, which caused a significant injury to the plaintiff's right arm. That action is the subject of proceedings in the Supreme Court.

The evidence before me contains the plaintiff's statement of loss and damage under the relevant Practise Direction of the Supreme Court. This document reveals the plaintiff asserting that it said she became commercially unemployable did it not Mr Hoare?

MR HOARE: Yes, well it's - that was her allegation.

HIS HONOUR: Yes, yes thank you. After a year on compensation the plaintiff was assessed as having a permanent injury and paid out. Exhibit 23 is a photocopy of the Orthopaedic Assessment Tribunal's report that ascribes to her arm injury five percent loss of efficient use. In the curious circumstance of this case the document was tendered by Mr O'Grady.

I am not prepared to take the five percent assessment as definitive of the plaintiff's disability in her right arm.

The other evidence which I have, including the plaintiff's evidence and the report and evidence of an occupational therapist, Lesley Stevenson, suggests the right arm disability is considerably more than that, quite apart from the plaintiff's claim in other proceedings above her own signature to have been rendered commercially unemployable by it. She tried to returned to work as a shearers' cook and was unable to manage that because of the condition of her right arm. It is understandable to me that she made the claim to being commercially unemployable.

That did not mean, however, that the plaintiff had lost her income-earning capacity; she was enterprising enough to use the small pay-out she received from the Workers' Compensation Board to purchase stock to enable her to set up a nursery business from her home in Charleville which she had registered as a nursery. She appears to have operated that business from the start enormously successfully, generating a volume of sales which I found surprising but accept. As well as customers in Charleville and outlying towns, she was able to effect sales to the local authority and the hospital and such bodies and it may be that the recovery of the town from the flood partly explains her success. In the 1992/93 year, her taxable income from the business was between $14,000 and $15,000. This relates to part of the year only but did involve the “fire sale” consequent upon the decision to close the business.

In the early part of 1993, after some unpleasantness with the next door neighbours, the plaintiff and her husband found their house in Charleville burnt down and the police had a reasonable fear of a repetition of that disaster which was the basis, along with concerns regarding Mr Bell's health, for the couple moving to Toowoomba and being permitted by the insurance company to use their payout to build in Toowoomba rather than Charleville.

The plaintiff claims that her capacity to operate the nursery was destroyed by her injuries sustained in the fall at the defendant's premises. Her injuries are described in the reports tendered of Dr Pentis, Exhibits 1, 2 and 3, and Dr Martin, Exhibit 27. Dr Martin, at a time before his impression of Mrs Bell had been affected by viewing a video, Exhibit 21, had opined that the plaintiff would have been restored to her ability to conduct a nursery business for a total period of seven months, having regard to an arthroscopy which he in fact performed in January 1993 among other things.

The plaintiff, as a matter of history, was able to operate her nursery business successfully for some months after the fall and that situation was disrupted only by the fire. The plaintiff required assistance of her husband (to the extent he was able to give it with his own severe osteo-arthritis in both knees) and of other family members as well as customers and other helpers.

The video demonstrates her to have impressive flexibility, especially of her spine, for a person of her age but she said she has never claimed that she is limited in movement except when she has to do things repetitively or bear weights.

The video, which I mentioned, shows the plaintiff planting on 11 October 1993. Literally, Mr O'Grady is correct in his submission that it does not really show the plaintiff doing anything which she has asserted she cannot do. It is difficult to see why Dr Martin makes such a savage revision of his assessment of the plaintiff's disabilities but I can understand, in a general sense, his preference for observing orthopaedic cases in unguarded moments in real life rather than in his consulting rooms.

I think it is perfectly reasonable to assess the plaintiff's capacity as something like 15 per cent loss of function of her left leg which is at the bottom of Dr Pentis's range.

The chest injury he assesses as a 10 per cent loss of the efficient function of the thoracic case which would give the plaintiff troubles with heavy lifting, heavy manual work and other strenuous activities with the pectoral musculature.

So far as her leg is concerned, she has problems with bending and squatting activities in particular.

I am aware that the plaintiff has a Supreme Court action still to resolve and I think I have to be careful to identify the basis on which I am treating her. That basis is that the injury to her right arm was the effective cause of her being forced out of the commercial workforce. She had, it must be borne in mind, already some problem with the pectoral musculature on the left hand side because of her cancer problem. The plaintiff, as she has demonstrated, however, still had a residual earning capacity, however unattractive she might have been to potential employers. That capacity has been limited by her injuries suffered in the fall.

The claim for past economic loss is made only from 1 January 1994 to the present. The date of 1 January 1994 is selected as one occurring after a reasonable time had elapsed from the plaintiff's move to Toowoomba with her husband. I am certain that, considering only the circumstances of her nursery business, the plaintiff would have chosen to stay in Charleville and prospered there in that business: however, the unpleasant situation regarding the neighbours and her husband's pressing need to be close to medical assistance in Toowoomba dictated the move. The plaintiff has not re-established herself in business in Toowoomba. Even if she is more limited in her capacity to run some kind of business, I think, observing her, that she still has some capacity, although perhaps some of the heavier work in operating a nursery may be beyond her personally. I think she may find, if she is minded to return to operation of a nursery, that it is feasible to engage assistance of others as necessary. My strong feeling about her is that, perhaps with the assistance of the damages I am going to assess, she will manage if she is so minded to find some income-earning activity in the future.

I do not say there is no future economic loss. I am of the view that she should be compensated for the damage which her fall caused to the income-earning capacity which remained to her when she had injured her right arm.

In assessing the plaintiff's pain and suffering and loss of amenities, I am very conscious and make what I think is a proper allowance for the mental suffering, which the uncertainty of the condition of her left chest created.

I assess her damages in this respect as $26,000 and the past component at $15,000 on which I allow $800 interest. I propose to allow the plaintiff's Griffiths v. Kerkemeyer claim in full, but on the basis that the assistance she required which was centred more on keeping her nursery running than personal care, and should be remunerated or considered as notionally remunerated at nurseryman rates rather than those for domestic assistance.

The Griffiths v. Kerkemeyer claim I allow at $1,623, which as I said is the amount of the claim in the end. Special damages are agreed at $6,350 which is inclusive of interest. In respect of the plaintiff's past economic loss from January, 1994 to the date of trial I allow a round sum of $5,000 inclusive of interest, and in respect of the future $12,500. The total I think is $52,273, in which amount the plaintiff should have judgment against the defendants, and presumably with costs to be taxed.

MR HOARE: Yes, Your Honour, I'd ask for that.

HIS HONOUR: That is the order.

MR HOARE: Your Honour, I don't think there's any reserved costs, this is a matter of prudence, could you say plus reserved costs if any? I mean I don't know of any. Perhaps that's a bit silly isn't it?

HIS HONOUR: There are none endorsed on the file.

MR HOARE: No, no I'm not worried.

HIS HONOUR: Right. Yes, thank you gentlemen.