Alan James Champney v Ashcourt Holdings Limited
[1996] QDC 64
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- Unreported Judgment
- Alan James Champney v Ashcourt Holdings Limited[1996] QDC 64
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Alan James Champney v Ashcourt Holdings Limited[1996] QDC 64
Alan James Champney v Ashcourt Holdings Limited[1996] QDC 64
DISTRICT COURT | No 1320 of 1993 |
CIVIL JURISDICTION
JUDGE ROBIN QC
ALAN JAMES CHAMPNEY | Plaintiff |
and
ASHCOURT HOLDINGS LIMITED | Defendant |
BRISBANE
DATE 15/04/96
JUDGMENT
CATCHWORDS:
Tort - negligence - occupier's liability - pathway in caravan park allowed to remain strewn with “rubble” and twigs from gum trees - plaintiff slipped while returning to his van from shower - found to have fallen (as alleged) on pathway rather than while taking a shortcut down a slope - no system to clear paths shown to have existed - rubble and twigs present for at least a week - defendant found negligent.
Contributory negligence - plaintiff slipped on twigs and rubble present on path to his van in defendant's caravan park for more than a week to plaintiff's knowledge - evidence to that effect emerged for first time in plaintiff's evidence at trial - defendant held entitled to amend particulars of contributory negligence after close of evidence notwithstanding plaintiff's objection, but subject to plaintiff's entitlement to call further evidence - plaintiff found 50% to blame for accident - power of District Court to allow pleading amendments after trial has begun - RSC Order 32, District Courts Rules r 4(a), r 104.
HIS HONOUR: This occupier's liability action is one in which only liability is in issue, both parties having agreed on quantum inclusive of interest at $48,314.26. The plaintiff, who will turn 60 in September, on 16 June 1991 was a resident at the Sheldon Caravan Park at 27 Holmead Road, Eight Mile Plains, which the defendant company operated. He fell and suffered a bad fracture to his right tibia and fibula, the healing of which appeared to take a very long time. There were other minor injuries. Perhaps I should say I do not have enough information to say whether or not an injury to the plaintiff's spine, which was mentioned for the first time in the pleadings on amendment last Friday, was minor or not.
The accident occurred when the plaintiff was returning to his caravan, which occupied site 10A, from the amenities block. The issue between the parties when the trial began, although this did not appear from the pleadings, as the defence was of a non-informative nature, was whether the plaintiff had, as he asserts, followed -----
MR PERKINS: Your Honour, might I just interrupt there? There was in fact an earlier amended Entry of Appearance and Defence.
HIS HONOUR: I was told before there wasn't.
MR PERKINS: I certainly didn't mean to.
HIS HONOUR: Can I find it? We may as well get the pleadings right. I've got one filed by a firm in Cairns, I think.
MR PERKINS: It's been amended since then. I'm afraid I've crossed out and scribbled in part of this. Sorry if I misled you.
HIS HONOUR: I made an inquiry before making comments about how you hadn't pleaded contributory negligence. In fact, you have.
MR PERKINS: There is a pleading - I must have misunderstood Your Honour. There is a pleading of contributory negligence, but not the same pleading of contributory negligence.
HIS HONOUR: So you were then in the favourable situation of the defendants referred to in the note from the Supreme Court rules?
MR PERKINS: Yes, Your Honour. I mistook you in the sense that I thought you were referring to a situation where contributory negligence was alleged in different facts of cause to the contributory negligence.
HIS HONOUR: You are squarely within that note.
MR PERKINS: I think that's right, Your Honour. I say I thought you had that pleading in front of you.
HIS HONOUR: No.
MR PERKINS: I apologise, Your Honour.
HIS HONOUR: Perhaps you did mislead me, but it wouldn't have helped your case. I'm sure it wasn't intentional. You know the pleading I had, filed by Mr Sciacca.
MR PERKINS: An uninformative pleading.
HIS HONOUR: The upshot is that the veiled criticism I made of the defence in the action some time well in the past became inappropriate at the time an amended entry of appearance and defence was filed which clearly set out the case which was that the plaintiff, contrary to his claim in evidence at the trial that he followed the “regulation” paved pathways and/or roads leading from the amenities block to his van, had actually taken a short-cut which involved him walking down a sloped grassed embankment on his way from the shower block to his caravan when he ought to have known that it was wet with dew and slippery. He was charged in this plea of contributory negligence against him with having not worn appropriate footwear.
In support of its version of how the accident occurred, the defendant called Mrs Hartley, who was a resident of the caravan park and also worked as its receptionist. She was summoned by another resident whose attention the plaintiff had attracted about half an hour after falling, which he did early on a Sunday morning. That resident is a Mr Hetton who was not called. Perhaps ironically, given the particulars of contributory negligence pleaded, Mrs Hartley swore that she headed off across the “dangerous” slope to the caravan of the plaintiff, where he had got by pulling himself along on his bottom or in some similar fashion from the place where he said he fell, which is marked with an X on Exhibit 2. This was on a narrow path just outside a fixed cabin occupying site 10, which is erroneously called site 9 in the exhibit.
At the plaintiff's request, Mrs Hartley went to collect his soap which he had dropped in the accident and left behind, while he had managed to get other items such as his toothbrush and toothpaste back to his caravan. It was from the location of the soap which the plaintiff had roughly indicated to her that Mrs Hartley formed the view, which may be natural enough in the circumstances, that the plaintiff was taking a shortcut when he fell. She describes what could have been a slip mark about some nine inches long somewhere near the soap, but agreed it was the plaintiff's information to her about slipping which led her to that conclusion. There is no reason to think the slip mark was a fresh one. The plaintiff, if he had traversed the slope which is in the area of three clothes lines available for use to residents of the caravan park, was certainly not attempting to conceal it on the day in question.
I am intrigued that apparently no conversation occurred between the two witnesses mentioned or between the plaintiff and Mr Hetton as to how he came to fall or exactly where. Part of Mrs Hartley's reasoning, which is quite understandable, is that the plaintiff used the word “slipped” to her. There is only his own evidence as to the path he took and I find the question a close one, but in the end having observed his demeanour have found no reason to disbelieve what he told me.
Mrs Hartley could say nothing about the soap, whether it was “soap on a rope” or a soap in a container of some kind or just a cake of soap. Wherever it might have been, it might have moved some distance from where the plaintiff fell.
It was not for a period of months that Mrs Hartley was asked to recall where she had found the item and place herself there for the purposes of photographs. It is in a slightly different, perhaps a significantly different position from that which the plaintiff indicated, although the two locations are in the same general area. If the plaintiff had, indeed, been taking a shortcut and been prepared to traverse wet grass, it seems to me he would have been saved even more distance by cutting around the back of his caravan rather than moving around the front of it and having to traverse the hazard of the long towbar. On any view, the location of the soap does not suggest the plaintiff had done that.
Against the possibility that the finding might be that the plaintiff had followed the shortcut proposed by the defendant, Mr Perkins referred me to Mr Justice Shepherdson's decision in Warn v. Strutton, Writ 1850 of 1980, 4 April 1989, in particular page 22 in which his Honour, having rejected the truth of the plaintiff's version as to how she had suffered a lifting injury, held it was not incumbent on the Court to offer the plaintiff a second chance of success by entertaining a different history which might have injured the plaintiff. I will add a reference to a similar case of my own where a gentleman sued his employer unsuccessfully in respect of an alleged injury sustained at the Freemasons' Home at Sandgate. As I recall the matter, he was unsuccessful because I rejected his evidence as to the pathway along which he had been manoeuvring a heavy boiler; it did not help him that there may have been other work-related explanations for his back condition. See Hadfield v. Boilerland Pty Ltd, Plaint 2384 of 1990, 11 December 1992. As it happens, there is no necessity for me to resolve issues of this kind.
Mr Rangiah made a submission that it was possible for his client to succeed if he had slipped on the grass. We have certainly come a very long way in our tenderness for those who break their legs if that is enough to create liability in an occupier.
The plaintiff says that on the narrow path along the fixed cabin on lot 10 he slipped on rubble consisting of pebbles or chips of stone or concrete and twigs or broken sections of twigs from a particular large gum tree growing nearby, or perhaps some other gum tree. He has recently been to the site to retrieve samples of such material and those are in evidence.
The caravan park is located in semi-wooded country and I am willing to take judicial notice of the self-pruning proclivities of Australian gum trees. I am also satisfied that in addition to material deposited by the trees, pebbles, gravel or stone chips from the sealed roadways of the caravan park, perhaps from decomposing paved areas, may well be frequently around the place. I assume, although there is no evidence about this, that the distribution of such material on places such as pathways might occur unintentionally by the movement of vehicles or motor mowers or otherwise.
I have the plaintiff's evidence and that of another resident of the caravan park at the time, Mr Brady, suggesting that the defendant was not particularly astute in its maintenance of the pathway. I am not sure Mr Brady was in a position to know what went on from the point of view of observing the operation of any system that the defendant might have had to keep its paths clear.
Whereas the plaintiff has tendered photographs which show what may well be rubble of the kind mentioned on the ground, the defendant has shown photographs which show the area pristine. It is possible that the track or path on which the plaintiff fell is in a special category. It gave access to no van except his own, which in the photographs appears to be of a different kind from the general run of vans on the site. This is perhaps the defendant's way of squeezing in one more resident. It may be the case that the defendant did have an adequate system to keep its pedestrian walkways clear, but that did not apply either generally or at the relevant time to what amounts to a private path of the plaintiff. The risk of residents stumbling or tripping or slipping on paths which they might be traversing at any hour of the day or night is an obvious one. I accept Mr Rangiah's submission that the twigs in particular have a roller effect or are capable of having it on a hard surface.
The essential authority in what it is now anachronistic to call “occupier's liability”, is Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR. Other cases which have also been referred to are Drakos v. Woolworths (SA) Pty Ltd (1991) 56 SASR 431 and Griffin v. Coles Myer Limited (1992) QdR 478.
It is convenient to take from Mr Justice Williams' judgment at page 481 in the latter the questions which may have to be considered in a case like this. Firstly, does it establish a foreseeable risk of injury from slipping on foreign matter on the floor in the general area where the accident occurred? Secondly, what precautions were called for to meet that risk? Thirdly, was the fall in question caused by the occupier's failure to take adequate precautions given the foreseeable risk?
The evidence is consistent with the notion that the defendant took no precautions whatever and had no system. There ought to have been some system, in my view, and I say that notwithstanding that the nature of the location makes it absurd to contemplate that the defendant should have taken the kind of care that the operator of a hospital, for example, might have to take.
Part of the amenity of the area was its semi woodland nature. Inevitably it was going to mean twigs or larger branches would be on the ground. Indeed, the plaintiff on occasion had to remove largish branches so that he could traverse areas where he wanted to walk. The rough nature of the roads and paths and the traversing of them by vehicles also makes it extremely likely in the circumstances that chips of concrete, stones, pebbles and the like may be scattered around the place.
In my view the plaintiff has established an entitlement to answers in his favour in respect of the three questions Mr Justice Williams identified.
The next question is whether contributory negligence is established against him. Under the misapprehension that there was no plea whatever of contributory negligence, I had consulted authorities to ascertain whether or not the Court might nevertheless make a reduction to account for the plaintiff's own negligence, under the Law Reform (Tortfeasors' Contribution, Contributory Negligence and Division of Chattels) Act 1952. In Judge Wylie's District Court Practice at page 3717 reference can be found to cases such as Benjamin v. Currie (1958) VR 259 and Barron v. City and Suburban Tramway Co (1890) 8 NZLR page 393, the reference to which in the Practice contains a misprint.
Those cases on examination do not knock much of a dent in the general rule that contributory negligence ought to be pleaded. The defendant has, contrary to my initial impression, pleaded contributory negligence and comes within the principle of the indulgence allowed to a defendant wishing to change the particulars of contributory negligence pleaded which appears in Ryan, Weld & Lee's Supreme Court Practice at paragraph 23.1.59 which states as follows:
“During the trial of an action for negligence, evidence may emerge and lend support to an allegation of negligence or contributory negligence which are not covered by the particulars as they then stand. When this occurs, it is open to the party seeking to rely upon the new ground disclosed for the first time at trial, to apply for amendment of the particulars and unless prejudice to the opposite party will result, an application will almost invariably be granted unless the prejudice to the opposite party cannot be met by an adjournment or a special order as to costs (Zanardo v. Ford Motor Co of Australia Ltd (1964) VR 769 at 771; Leotta v. Public Transport Commission (1976) 50 ALJR 666)”.
The present case is quite different from Finborough Investments Pty Ltd v. Airlie Beach Pty Ltd [1995] 1 QdR 12, in which there were cogent reasons for refusing to allow a defendant whose defence had failed to amend to add a new defence necessitating the proof and calling of new witnesses at a stage when “counsels' addresses had almost ended”.
Mr Rangiah cast doubt on this Court's jurisdiction to permit amendment of the Defence, referring to Rule 104 which says nothing specific about the Court's power to permit amendments once a trial is underway. That course is commonly taken. If warrant is needed for it in the rules I have no doubt that the combination of Rule 4(a) of the District Court Rules and Order 32 of the Supreme Court Rules permits it. I allowed the defendant to amend its pleading in terms of Exhibit 8, to add a new paragraph 6A. Mr Rangiah indicated that the plaintiff would not avail himself of the opportunity to call further evidence. The defendant comes within the paragraph of the Supreme Court Practice set out in that, contrary to what one might expect, the plaintiff in his evidence clearly said that the rubble on which he fell had been there for a week or two weeks before he fell on it. He knew it was there. This material presented no hidden trap. Indeed, he would have more occasion to notice it and become aware of the necessity to allow for it or remove it than the defendant. However perfect the defendant's system might be for keeping pathways clear, this kind of danger might arise - for example, if there were a wild storm in the night.
In my view a commonsense approach has to be taken to circumstances of this kind. The plaintiff bears a considerable responsibility for taking care of his own safety in the isolated part of the caravan park where he lived. In my opinion, his responsibility for the unfortunate accident is equal with the defendant's. It follows that there should be judgment for him against the defendant for $24,157.13. Presumably, with costs?
MR PERKINS: Yes, I wouldn't argue. I can't say anything about costs. It is obviously less than the $50,000 scale in the District Court Rules.
HIS HONOUR: Mr Rangiah, you are not at risk of the Magistrates Court costs being applied. Mr Perkins has not applied for it.
Judgment for the plaintiff against the defendant for $24,157.13 with costs of the action to be taxed.
I order that at the expiration of the appeal period the Exhibits be returned to the parties who tendered them, except that I suppose Exhibits 5 and 6 go back to the defendant.