Soutter v P & O Resorts Pty Ltd
[1997] QDC 163
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- Soutter v P & O Resorts Pty Ltd[1997] QDC 163
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Soutter v P & O Resorts Pty Ltd[1997] QDC 163
Soutter v P & O Resorts Pty Ltd[1997] QDC 163
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 3265 of 1993 |
[Before Brabazon QC, DCJ]
BETWEEN
MICHELLE ELIZABETH SOUTTERPlaintiff
AND
P. & O. RESORTS PTY LTD
AND
HERON ISLAND PTY LTDSecond Defendant
Delivered the 9th day of May 1997
Catchwords:
Counsel: | Mr M. Grant-Taylor for plaintiff Mr P. Munro for first defendant Mr K. Varley for second defendant |
Solicitors: | Butler, McDermott & Egan for plaintiff O'Mara, Patterson & Perrier for first defendant Ebsworth & Ebsworth for second defendant |
Hearing Date(s): | 28 and 29 January 1997 26 March 1997 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 3265 of 1993 |
BETWEEN
MICHELLE ELIZABETH SOUTTERPlaintiff
AND
P. & O. RESPRTS PTY LTDFirst Defendant
AND
HERON ISLAND PTY LTDSecond Defendant
REASONS FOR JUDGMENT - JUDGE BRABAZON Q.C.
Delivered the 9th day of May 1997
This is a claim for damages for personal injuries. Both liability and the amount of the plaintiff's damages are in issue. The issues are complicated by the fact that the plaintiff had two accidents on the one day. That is why there are two defendants. It is necessary to decide if either or both of those defendants is liable for her injuries, and, if so, the damages that are payable.
Before The Accidents
Ms Soutter was born on 11 February 1968, and so is now 29 years old. She was 22 years old when injured on 7 November 1990.
She attended high school to Year 12. While still at school she worked during holidays in a secretarial position for her father, and as a check-out operator at Coles. After leaving school she worked in a clothing shop until it closed down. She then worked in a business selling poultry, both at Brisbane and at Maroochydore. She was there for about 3 years, and was promoted to manageress. Leaving in about 1989, she did a 7 month full time course in tourism and hospitality in Brisbane. She came top of her class of 18 students. That was much better than she had done at school. While studying she did casual work in Brisbane, such as cleaning and waitressing. She wanted to be in the hospitality industry, particularly in a coastal area. Then, from mid 1989 to January 1990 she was a barmaid in a restaurant, and then worked as a waitress at a coffee shop until late 1990. She then had a period of unemployment for several months, before working for a month at Bullockies Restaurant doing bar work. She left there to take up a job on Heron Island.
Therefore, by the time she took the Heron Island job, she was a young woman who had not done well at school, but who liked her training and jobs in the hospitality industry, was unemployed for only a short time, was enthusiastic about her future and had ambitions of rising to a managerial position. She had no trouble with her back. She enjoyed aerobics, dancing and ten pin bowling. She lead an active life.
The First Fall
She started work on Heron Island on 1 October 1990. She was employed by P. & O. Resorts which operated the restaurant on the island. It served buffet breakfasts and lunch, and a la carte dinners. She was a waitress, and had to work 8 hour shifts, five days a week. On 7 November 1990, she had to work the breakfast and dinner shifts. She started her duties at dinner at 6 o'clock. She job was to serve meals and clear up the plates. When the guests had finished their meals and her job was to stack up the plates on large trays and then carry them through to the kitchen, so that they could be washed up. She was one of about 10 staff in the kitchen.
She carried a heavy tray of dishes through to the kitchen. As she was leaning down to put the tray on to the bench in the kitchen hand's area, she started to slip. She managed to put the tray on the bench and then she fell to the floor. The whole incident happened “in a split second”, and she could not have avoided the fall.
She was wearing rubber soled footwear. The floor was wet at the time. The kitchen staff had the practice of washing down the floor while the plates were still being cleared away. Detergent was used to clean the floor. She is not certain if she slipped because of the wet floor, or because there were still food scraps on the floor - sometimes food scraps would get on the floor in the kitchen area where the staff scraped the plates. It was a tiled floor that ordinarily presented no difficulties to the staff. She had not slipped previously. There was no other way for her to have done her work.
She put one arm out to try to break her fall. She landed on her backside. It seems likely that she did not fall down squarely on her back, or backside, but fell down slightly towards one side of her body. That would be consistent with her having put one arm out to break her fall. It is possible that the weight of her body landed on her coccyx at the base of her spine.
She was only lying on the floor for a few moments. She got up without assistance, and kept on performing her duties. She finished her shift. She felt some pain. Her fall had given her a fright, and a shock, rather than causing her severe pain. There was soreness and stiffness in her lower back. It was not sufficient to stop her working - though she was probably persuaded to keep going by a fear of losing her job if she did not do her work. Her discomfort was then a nuisance to her, rather than disabling.
I accept, as the more probable event, that she slipped on a wet rather than dirty floor, that she was able to get up almost straight away, and that the fall gave her a fright rather than caused severe pain in her lower back. She thought at the time that she would complete her shift and go back to work the next day and hope that the pain went away. She did not report the accident to anyone in authority, as she was scared of doing so. Anyway, she believed that she had just bruised her lower back, and it would get better in a couple of days.
Her fall was at about 8 p.m., and she finished her shift about 9 p.m. She went back to her quarters and had a shower and got changed.
The Second Fall
Now, Heron Island had a hotel called the Heron Hotel. It was operated by the second defendant, Heron Island Limited. It contained a separate area called the Pandanus Lounge. It was described at the trial as a disco, or a nightclub. The expression most used was “disco” and there was no suggestion that such usage was inappropriate. The disco was part of the licensed premises. There was a band playing that evening, and that was a rare event. Ms Soutter's back was sore, but not sore enough to persuade her to give up the opportunity of seeing the band, having a drink with some friends, and having a dance. She arrived at the disco shortly before 10 p.m. She went to the bar and ordered a drink. She had a dance with a man called Grant, a guest at the resort. The state of her back at that time did not restrict her from doing that. It was really more of a nuisance to her, than anything else. She did that, and then went back and stood on the dance floor, near the edge. She could not sit down, so she remained standing. She talked to other guests while standing up, for half an hour or so. That caused no significant difficulty with her back.
Others observed her while she was dancing. Two of them were work mates of Ms Soutter - a Mr McHale and a Ms Poulter. She did not display any limitation of movement while she was on the dance floor, as far as they could see.
While at the disco, Ms Soutter suffered another fall. A patron at the disco, a man called Hoch, collided with her. The collision happened suddenly, and was behind her so that it occurred without any warning to allow her to protect herself. While she was standing on the edge of the wooden dance floor, Hoch collided with her lower back or legs, causing her to fall to the floor. Her feet went out from under her, and she landed on her bottom. She fell heavily. After the incident she was crying and exhibited pain and discomfort. She was assisted from the dance floor by other dancers. She was in obvious pain, went to a chair, and after a time went back to her quarters.
Several witnesses, in addition to the plaintiff, gave evidence about the circumstances of the accident at the disco. Mr Hoch gave evidence, and admitted that the incident occurred. There were conflicts in the evidence, however, about the precise sequence of events at the disco. That was not surprising.
It is essential to describe Mr Hoch's conduct, both on the night of the accident and on his previous visits to the disco.
Mr Hoch was not an impressive witness. He was employed on the island. He recalled finishing work about 5 o'clock, probably having some drinks after work, and then going to the night club about 10 o'clock. This incident followed about half an hour later. During that time he said he had three rum and cokes. He said that he was dancing with a partner on the dance floor. While he admitted to dancing in a manner that was quite erratic and quite athletic on earlier occasions, he said he was quieter this night, because there were a lot of people on the dance floor. He knew that “slam dancing” meant dancers deliberately colliding with each other's bodies, but denied that he was doing that on this evening. He recalled that he and Ms Soutter bumped back to back, and that he turned round and saw her sitting on her backside with her knees up in the air and her hands behind her. He insisted that he helped her up and that she continued dancing straight away. He heard from other staff on the island, after a day or so, that she had been injured that evening. He did not remember how much he had had to drink that evening, and whether or not he was very affected by liquor. He had been to that disco many times before 7 November 1990. He agreed that there were times when he would get quite drunk. He denied ever being a slam dancer.
A fellow employee, Mr M.J. McHale, gave evidence. He was a chef in the restaurant, and knew Ms Soutter well. (He was the only person who was present at each of her falls). He had often observed Hoch at the disco before 7 November. He saw him drinking there. He was often drunk. In Mr McHale's words, Hoch was often “shitfaced” - by which he meant quite drunk. He saw that Hoch danced in a style in which his arms and legs were flung about. It was a wild style which required some space, because he used to move around the dance floor. On earlier occasions, he saw bodily contact between Hoch's arms or legs and other dancers.
On 7 November, McHale arrived at the disco about 9.30 p.m. He himself had four or five pots of beer to drink. He noticed that Hoch was drunk, and was dancing in his usual wild style. He said that he was obviously intoxicated, and was drinking continuously before the incident involving Ms Soutter. He also noticed Ms Soutter dancing. She seemed to be in her usual form, doing normal disco dancing, with her arms and legs moving, but remaining within the same small space. He did not see the actual collision between Ms Soutter and Hoch, but he saw her sitting on the floor. She was crying and appeared to be in pain. She was obviously distressed. She was holding her lower back with her hands. He recalls someone, not Hoch he thought, assisting her to a chair. She may have got up and danced later, but he did not see that.
Ms Valli Poulter also gave evidence. She was another employee. She was first asked to recall these events about three years afterwards. It appeared that her memory of them was not at all good, and she was uncertain about the events of the evening. It seems that she arrived at the nightclub at about 10.30 p.m. and danced together with Ms Soutter, near the stage. She thought that Mr Hoch wasn't slam dancing. After Ms Soutter's fall, she recalled no tears, and that Ms Soutter had some drinks and another dance afterwards. She does recall that Hoch was dancing on the floor before the accident. She recalled that he was indeed a wild dancer, at that disco, but that she had no memory of him slam dancing on this evening.
She could not deny that Hoch might have been slam dancing during the course of the evening. She was confident that he was not doing so when she and Ms Soutter were on the floor, when this incident occurred. She agreed that he was dancing erratically. She described Hoch falling backwards on to Ms Soutter. She did not remember whether Hoch was drunk or not. She did recall that Ms Soutter fell on her bottom. She was sure that Ms Soutter was not crying after the incident. Like Mr Hoch, she recalled her sitting on one of the chairs after she had been helped to her feet. She then recalled, after some time the length of which she could not remember, that they both had another dance together.
She saw Ms Soutter the next morning, and saw that she appeared to be in severe pain - she was holding her back and complained of hurting it. Before this incident, there was nothing to suggest to her that Ms Soutter was in pain from her back. She was dancing away normally. Ms Soutter recalled that she was actually standing still at the end of the dance floor when she was struck by Hoch. She recalled being at the disco that evening for about forty five minutes. She was struck from behind and landed on the bottom of her back. Her feet were knocked from under her and she just went down.
She had visited the disco on earlier occasions and seen Hoch there. She described him as “slam dancing” - by which she meant that he danced erratically, bouncing around the dance floor with his arms and legs flailing. That was the way he always danced, when on Heron Island, she said.
She recalled that Hoch had been dancing in his usual way that evening. She described that as “slam dancing” but it is apparent that she did not adopt the same meaning as those to whom it meant deliberate bodily contact between dancers. When she first arrived, he was at the bar. After she saw him dancing, she did not see him for about half an hour, before her fall. She noticed that he was drunk, but “that was Erwin (Hoch)” His behaviour, which was normal for him, did not particularly attract her attention that evening, or put her on notice that she should beware of him. There were about 15 people on the dance floor.
She recalled being in immediate pain after being knocked to the floor by Hoch. The pain was in her lower back. It was much more severe than the pain after the kitchen fall. She was on the ground for a few minutes, crying, and then she was assisted to her feet. She recalled that two guests helped her up, carried her to her room and she went to bed. She did not have another dance. Next morning she went to see the nursing sister on the island, Sister Catford. She complained of being pushed over by a male dancer in the Pandanus Lounge, and falling, with her weight on her coccyx. She complained of extreme back pain and said that she had been unable to sleep during the rest of the night. An examination revealed pain when pressure was applied about the T6 and L5 joints in her spine. There was severe pain from pressure on her coccyx.
On the whole of the evidence it appears that these are the facts concerning the second fall:
- (a)Hoch was an energetic young man who liked going to the disco, and who liked to drink;
- (b)he often danced wildly about the dance floor, flinging his arms and legs about. He occasionally made contact with other dancers;
- (c)he drank a lot at the night club, and was often drunk before this evening;
- (d)on the evening of 7 November he drank continuously at the night club and was drunk before the incident with Ms Soutter;
- (e)the night club staff serving him would have been able to see that he was intoxicated on 7 November, at least by the time of the collision;
- (f)he was dancing wildly about the dance floor, as was his habit when some part of his back collided with Ms Soutter, who was also looking the other way. That collision knocked her legs from under her, so that she fell on her coccyx;
- (g)the fall caused her pain and distress, considerably more severe than the kitchen fall had done. After going to bed she could not sleep, and was in severe pain the next morning when she visited the sister. She told the sister that she had fallen on her coccyx.
Liability of the First Defendant
It was not alleged that the filed floor in the kitchen was inadequate, or of improper construction. It was a well drained floor.
The clean-up procedure for the kitchen was carried out at the end of the dinner shift. That was a regular and usual event, in which many of the staff assisted. It is clear, at the least, that sometimes the floor would get wet. It is likely that it would usually be wet, as the clean-up with water started before the waitresses finished their shift. A detergent solution was used to clean the floor of the kitchen. That was obviously a dangerous practice. An alternative course would have been to delay the washing down of the kitchen floor until the waitresses had completed their work, of removing the plates from the dining area. Even though Ms Soutter was wearing appropriate footwear, it is plain that the use of water and detergent was the cause of her first fall. It meant a risk of injury that was foreseeable. There was a practicable way of avoiding the risk. No one attempted to excuse the practice. That situation clearly showed a failure on the first defendant's part to eliminate an avoidable risk, and so revealed a want of reasonable care for her safety. It was negligent in its conduct towards her.
There is a plea of contributory negligence, but I cannot see that the plaintiff was in any way guilty of failing to take care for her own safety. She had to walk on the floor, she was appropriately dressed, and the fall was not her fault in any way. She is entitled to recover against the first defendant for any damage which resulted from that fall.
Liability of the Second Defendant
Exhibit 14 shows the layout of a stage, dance floor (marked in yellow on the exhibit), bar surrounded by a service area, and a carpeted lounge area. The whole area was roughly about 14 metres square. Music was supplied by an occasional band, or by a disc jockey. The band was playing on this evening.
It is established that a hotel keeper, or the licensee of other licensed premises, has a common law duty of care to take reasonable care to avoid a foreseeable risk of injury to a patron. It is now part of the general common law duty that an occupier of land has to take reasonable care for the safety to those coming upon the occupier's premises. So much was established for Australia in Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 C.L.R., 479. The application of the general principle to licensed premises can be seen in Chordas v. Bryant (Wellington) Pty Ltd (1988) 20 F.C.R. 91 (Full Court of the Federal Court) and in Wormald v. Robinson and Others (1988) 2 Aust Tort Reports 81-180 (The Queensland Court of Appeal). It was not suggested that the ancient position and duties of an innkeeper now had any different effect in this case.
Here, the defence of the second defendant did not raise any issue of contributory negligence or the voluntary assumption of risk by the plaintiff. At common law, the only question is whether or not the second defendant was negligent in its conduct towards her on the evening of 7 November 1990.
It is established that the collision between Hoch and the plaintiff caused her some injury. The licensee's duty was to take reasonable care to avoid a foreseeable risk of injury to Ms Soutter. The most widely accepted explanation of the nature of that duty is now taken from the judgment of Mason J in Wyong Shire Council v. Shirt (1980) 146 C.L.R. 40 at 47-48, where he explained that:
“A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone (1951) AC 850 may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being ‘foreseeable’ we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question fo breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
It must have been foreseeable by the licensee that Hoch's conduct might have caused injury to another patron on or near to the dance floor. He was in the habit of dancing in a wild fashion, moving about the dance floor, while he was affected by liquor. Such an activity could easily be the cause of injury to another patron. It must have been observed by the licensee's staff. The question here is, what should the licensee have done in response to that risk on this evening? The plaint suggests that the licensee, having observed the risk, should have warned Ms. Soutter of Hoch's presence, or, preferably, should not have allowed Hoch to be at the disco at all - or, if he were there, then his dancing should have been stopped.
There is no evidence that the second defendant had ever received a complaint about Hoch's conduct. There is no evidence that anyone else had been hurt by him. He had bumped into others. There was no evidence about the limits of acceptable conduct at a disco of this kind, as part of a hotel on an island which attracted tourists, holiday makers, and island workers. The range of acceptable conduct while dancing appears to be a large one - from the sedate, to the stylised ballroom dances, to the vigorous free style found at discos, to “moshing” - a form in which dancers hurl themselves from an elevated position into a crowd of patrons who support them with upstretched arms. Much will depend on the style at a particular venue, and what its patrons accept and expect.
There was no evidence that his style of dancing exceeded that which was acceptable at such a disco. While patrons at this disco engaged in “slam dancing” from time to time (that being an indication of the vigour which was displayed by at least some of the dancers, some of the time), Hoch was not doing that sort of dance on this evening. He was not deliberately coming into contact with the bodies of other dancers. He was drunk, but there was no evidence to show that he was behaving in a disorderly or aggressive fashion. His conduct was nothing like that of the man called Robinson in the Wormald case.
The Chordas and Wormald decisions are about the combination of alcohol and violence in hotels were the violence was sudden and unexpected, at least by the victims. This is not a case about violence. It is a case about entertainment during which a participant is hurt by a sudden, though not surprising, event.
It is much closer to the incident at the skating rink, considered in Maynard v. Glideway (1985) 3 S.R. (W.A.) 154. There, a young girl who went to a popular roller skating rink was injured when some other mischievous girls caused her to fall over. The proprietors of the skating rink were held not to be liable in negligence for her injuries. Two important considerations in the judgment were the fact that no complaint had been made about the behaviour of the offending girls, and because, as the learned Judge put it,
“I cannot avoid the conclusion that on a crowded rink some degree of bumping, jostling, stumbling, loss of balance, pushing or falling, must be expected as a risk which all who venture on the rink must be taken to accept, and although that may not be a determining factor, it is certainly relevant to the scope of the defendant's duty to patrons.”
Otherwise, the trial Judge applied the statement of Dixon J in Smith v. Leurs (1945) 70 C.L.R., 256 at 261 and 262, that there may be special relations which are the source of a duty to control another persons actions to prevent harm to strangers. Dixon J concluded by saying:
“The standard of care is that of the reasonably prudent man, and whether it has been fulfilled is to be judged according to all the circumstances, including the practices and usages prevailing in the community, and the common understanding of what is practicable and what is to be expected.”
That passage, though written in 1945, shows a similar approach to that adopted by Mason J in the passage quoted above, with regard to the balancing out of the various factors in deciding the reasonable man's response to a foreseeable danger. Those considerations include contemporary expectations and standards. As the Queensland Court of Appeal pointed out in Jaenke v. Hinton (37/1995, judgment, 3/11/85):
“...the finding of negligence in the present case was quite contrary to contemporary expectations and standards. If the law pretends to impose standards to which reasonable members of the community cannot relate, the law will fall into disrepute. In fact, it is the standard of the reasonable person that courts attempt to uphold. The finding of negligence against the appellants of this case assume an unreasonably high standard of care to protect other persons from danger, and an unrealistic level of forseeability...”.
Here, in addition to the factors mentioned above, may be added the most striking one of all - that Ms Soutter was quite aware of Hoch's habits as a drinker and dancer, saw him in his usual condition when she arrived at the disco this evening, but did not pay him any particular attention, or feel that she should beware of him. She stood towards the edge of the dance floor, with her back towards him. Now, her counsel asserts that the licensee should have done more than she did for herself, by taking steps to protect her from a collision with Hoch. Her own attitude was apparently that shared by the other patrons.
As the court observed in Chordas, there is much authority in the North American cases dealing with negligence claims against hotels, restaurants, bars, and similar establishments brought by patrons who suffer injury as a result of the tortious acts of other patrons. There, the common law principles of negligence have long been applied to the standard of care demanded of the proprietors of such establishments. That case, at p. 95, contains a statement of principle taken from the American cases.
It is helpful to note two United States decisions to illustrate the application of principle to similar cases. Once again, roller skating cases are helpful. It has been held that those who participate in such a sport assume the ordinary risks attendant upon such participation. Some bumping or jostling is an ordinary risk of participation in roller skating. In that case, recovery against the proprietor would not be allowed. Where the danger to the skater is obvious and apparent, then that is part of the ordinary risk of carrying on that sport. On the other hand, where other skaters behave in a dangerous fashion, and that behaviour could be prevented by the proprietor, then the proprietor can be liable. While the operator of a skating rink is not an insurer of the patron's safety, nevertheless it owes a duty to keep patrons from risks other than those normally incident to the sport. The reckless action of other skaters, capable of being prevented by attendants, is not one of the normal risks (see generally, Speiser, Krause and Gans, The American Law of Torts, Vol. 2, para 946, and in particular, the decision in Thomas v. Studio Amusements Inc 50 Cal App 2nd 5, 38, at 555.)
A dance floor may be a source of liability to its proprietor. In Edwards v. Hollywood Canteen 167 Pacific Reporter, 2nd series, 729, a hostess at a dance hall was injured by her partner. He danced with her in a rough and boisterous manner for three or four minutes before the accident, during which time she repeatedly screamed for help. He weaved his way in and out of the crowd on the floor, dancing “fast and furious”, and causing the plaintiff to hit other dancers. It was held that the proprietor, in the exercise of due care, should have observed the dancer's conduct, realised that it was likely to result in injury, and stopped it. The proprietor was liable in negligence.
Adopting those approaches here, it appears that Hoch's conduct falls into what was normally expected at the disco, rather than into the unacceptable category, where the licensee would be expected to intervene. In my opinion, the facts do not allow this court to decide that the licensee failed to take steps to protect the plaintiff, by a warning, or by subduing Hoch or removing him from the premises. The allegations of negligence against the second defendant are not made out.
A Statutory Duty?
Counsel for Ms Soutter also relied on a breach of statutory duty. Section 78 of the Liquor Act 1912 which was then in force, provided that:
“Prohibition of Gaming and Disorderly Persons, et cetera
Any licensed victualler who suffers or permits -
- (a)any person to play any game or sport declared under any law to be an unlawful game or sport in or upon his licensed premises or the appurtenances thereto or;
- (b)prostitutes, thieves, or persons or notoriously bad character or drunken or disorderly persons to be in or upon such premises or appurtenances shall for the first offence be liable to a penalty...”
In Chordas, the Court decided that s. 79 of the A.C.T. Liquor Ordinance did not provide the basis of a statutory right of action in a patron. It was held that the ordinance was enacted in the general public interest, not for the protection of patrons who might be injured by the conduct of intoxicated persons. In the Wormald case, the Queensland Court of Appeal said that s. 79 was distinguishable from the Queensland s. 78, but did not need to go on to decide it conferred a private right of action.
It was submitted by counsel for Ms Soutter that she would need to demonstrate four things, before there could be a recovery of damages based on s. 78:
- (a)proof that s. 78 related to the protection of a particular class of patrons, of whom she was one;
- (b)proof that it imposed an obligation upon the second defendant, in this case;
- (c)proof of breach by the second defendant; and
- (d)proof that the plaintiff was injured as a result of that breach.
It is established that the second defendant was in breach of the section, because it allowed a drunken person, Hoch, to be at the disco.
It is notable that there seems to be no decided authority regarding s. 78, or a prohibition in similar form, from establishing a statutory duty to a particular patron. In Australia, the difficulty in principle is discussed by the High Court in O'Conner v. S.P. Bray Limited (1937) 56 C.L.R. 464 and 478, Darling Island Stevedoring and Lighterage Co v. Long (1957) 97 C.L.R. 36 and Sovar v. Henry Lane Pty Ltd (1967) 116 C.L.R. 397 at 405.
In this case, it may be assumed that s. 78 does provide a private right of action in Ms Soutter, in addition to the common law duty of care, owed to her by the licensee. There is then a question of causation to be considered. Hoch was not disorderly, according to the standards of the disco, but he was drunk. Did his drunkenness cause Ms Soutter's injury? The facts do not show any sufficient connection between the drunkenness and the collision which caused her injury. Rather, it was the manner of his dancing, and her position while standing on the dance floor, near its edge. The collision occurred because of his manner of dancing, not because he was drunk. There can be no recovery because of a breach of statutory duty.
Her Injuries
It will be helpful to consider first the effect of her injuries, regardless of the contribution of each fall to them. That is particularly so, as the injuries were caused on the same day.
The medical reports provide a clear explanation for her continuing difficulties in her lower spine. She has a congenital narrowing of the spinal canal at the lumbosacral level. There is now a central disc bulge or protrusion at L/5 level. That was revealed by the CT scan of 20th May 1992. The same position is shown by the plain x-rays of 9th December 1994. The development of her symptoms is consistent with a blow to her lower spine, such as that caused by a fall. She has had considerable low back pain and left sciatica. The pain radiates to her left buttock and into her left leg. The congenital condition was aggravated by the fall, and that has caused these permanent symptoms.
There is no suggestion in the evidence that her condition will resolve with the passing of time. It is permanent. There was a suggestion about the possibility of surgical treatment, but that was not pursued, presumably because it would be of marginal benefit to her. There was no issue at the trial about her disc injury being a mere acceleration of a condition which was likely to emerge and cause her difficulties in any event - see counsel's disavowal of that position, at T175/57. Also, there was no issue about any emotional or psychiatric condition, unrelated to the falls, having an effect on her earning capacity.
There are some suggestions in the medical reports, that her symptoms at times were not entirely consistent with the observable clinical signs. It would not be surprising if she exhibited symptoms from time to time, connected to her injuries, which had a psychological basis to them. There was no suggestion that she was a malingerer, or someone who deliberately exaggerated her symptoms. In my opinion, she has been quite genuine in her evidence, in describing the continuing impact of this injury upon her life. Nor was there any issue at the trial to the effect that the passing of time, or the end of this litigation, would see her symptoms decrease in severity.
There is evidence that she may have suffered a fracture of the coccyx. It seems clearly established that any symptoms from that would have passed, once the fracture healed. Some of the doctors discount the possibility of such a fracture at all. The opinion of Dr. Keays, an orthopaedic surgeon, who saw her about 7 months after the accident, cannot be ignored. His investigations did not reveal the disc injury. The possible coccyx fracture had healed. However, the truth of the matter was that her ongoing symptoms were almost certainly coming from her disc injury rather than from an injury to her coccyx. It must be noted that an x-ray of her coccyx taken within a week of her falls showed no displacement or fracture.
It therefore seems that any fracture to her coccyx has not been important in her case, and has had no lasting consequences. If it did happen then its effect would have soon resolved. She did have tenderness in that area, for a time. In any case, the evidence does not allow a positive conclusion that such a fracture was caused by the first fall.
After conservative medical treatment, the plaintiff returned to work in February 1991 as a waitress, and continued until June 1991. That work was on Heron Island. She had considerable discomfort, and did only lighter work. She then went to work in a boutique on the island until March 1992. The manager of the shop, a Ms Barlow, gave evidence. She was an impressive witness. She knew that the plaintiff could no longer continue her work as a waitress. She undertook all the usual work in the shop, including bending and lifting cartons up to 8 kilograms in weight. She showed no apparent discomfort, did not complain about her back, and did not take time off work. Most of the duties involved standing at the counter in the shop. Some of the work was of a clerical kind, such as making bookings. Her work was certainly lighter than in the dining room. I accept her evidence - but it did not demonstrate that the plaintiff had no continuing difficulties with her back.
The plaintiff was unemployed between March 1992 and April 1993. During that time she did some work at times in a restaurant while she lived with her parents. She rested for most of the time, by lying down.
In April 1993, she travelled to Japan. She had obtained full time work, mainly as a waitress. She did that until late 1994, a period of about 18 months and earned good money. Her contract ran out - her employment was not terminated because of her injuries. She asserted that her injury meant that her employers did not wish to renew her contract - though there was no evidence that a contract would otherwise have been available.
She then returned to Australia, and worked as a waitress from November 1994 until February 1995. After a period off work she worked for a year as a waitress at the Brisbane Club, averaging 20-30 hours a week. She then obtained a job as a sales assistant at Shoe City, a position she held at the time of the trial. Her wages there are less than she could earn in the sort of jobs she had before her falls.
Her injuries have affected her opportunities to pursue a career in tourism and hospitality. Her work in Japan, and her efforts to learn that language and become a tour guide, have demonstrated her degree of interest and determination in pursuing that sort of work. For a young person entering the hospitality industry, much of the work is necessarily energetic and requires a good level of fitness. Because she has not had that, opportunities have been denied to her.
She is able to perform most of her own domestic chores, with the exception of the heavier tasks, especially those which require bending and lifting. If she has a family in the future, then she will have more difficulty than usual with her pregnancies, and the demands of looking after a household which includes very young children.
I now turn to the particular claims for damages.
She has suffered constant, moderate pain and loss of amenities. Her level of activity has been reduced and her ability to enjoy life has been diminished. That will continue throughout her life.
Before the accident she enjoyed such things as aerobics, ten pin bowling, walking and dancing. She can no longer do such things, though she does go for swims. There is the continuing disappointment of her being less able to do the things she could have done, including jobs, had she not been injured. Her award of damages for pain, suffering and loss of amenities should be $25,000. Interest should be allowed at 2% on half of that amount up to the present time, that is a period of 6½ years. $1,625 is allowed for interest.
The plaintiff claimed past economic loss only from September 1994, when she stopped working in Japan. As Exhibit 3 shows, her actual income up to the end of January this year was $26,232. If it is assumed that she could otherwise have worked full time and earned the average wage of a female waitress, as at May 1994, then her total net income to the end of January would have been $42,421. On that basis, she suffered a net loss to the end of January 1997 of $16,189. Extended to the end of April 1997, that makes a total net loss of some $17,000.
The plaintiff's claim for economic loss up to trial is $30,000. That represents some 60% of her much higher earnings, had she stayed working in Japan. See her accountant's report, Exhibit 4. However, her prospects of continuing to work in Japan were speculative, and should not be taken as a true measure of her loss.
The second defendant says that her past economic loss should be restricted to an allowance for unemployment from September to November 1994, and from March to May 1995, being some 6 months at $200 net per week. That totals $5,200. If interest of $600 is added, that is a total loss of $5,800.
That defendant's submission does not give sufficient recognition to the higher salary she would have earned had she been a physically fit waitress, able to work full time. Allowing some discount for the prospect of her voluntarily deciding to move between jobs, I find her past economic loss to be $15,000. Interest at 6% should be allowed on the $15,000 since September 1994. That amounts to $2,347.
She has a diminution of her future earning capacity. Her accountant's calculations in Exhibit 3 show that she is presently earning less money, as an assistant in a shoe shop, than she would be earning in the hospitality industry. That calculation shows a present net annual loss of income of $3,918. That is a loss of some $75 a week. Her counsel contends for a present weekly loss of $115, on the basis that she would have had a higher earning capacity - such as working in Japan, or being promoted. Making an allowance for such factors, $100 better reflects her weekly loss. She is now 29 years old and it is reasonable to assume that she will probably work for another 35 years. Discounted at 5%, that shows a present loss of $87,600.
Medical expenses, including interest, are agreed at $2,594.35. Travelling expenses are agreed at $925.80. Further medical expenses and treatments (claimed in Exhibit 9) are agreed at $892.10. Interest on those last two amounts (a total of $1,818) should be allowed at 6% over 6½ years, an amount of $709.
The question of her need for assistance with domestic duties was a controversy at the trial. Somewhat curiously, the plaintiff herself gave no evidence of having any particular need for assistance at home, and neither was she cross-examined about that claim. However, Dr. Boys, the orthopaedic surgeon, thought that she would need help for about 1 hour a day to deal with the heavier jobs. It was accepted that the cost of domestic help is $10 an hour.
In fact, so far as the evidence goes she received no domestic assistance until she began to live with her present boyfriend, Mr. Shervey. From 5th November 1995, he has helped her with the heavier work about the house, and he says that he has done that at the rate of 2 or 3 hours a day.
The plaintiff's need for assistance is supported by the evidence of Dr. Curtis, who said that she would have difficulty with household chores, and that assistance for an hour a day might be needed. Indeed, some need for assistance would be expected because of her back injury. The plaintiff now claims the value of Mr. Shervey's necessary services being 1 hour a day over some 1½ years. The claim is for $5,520, up to the date of this judgment. Interest should be allowed at $166. Likewise, the claim for the future, based on the same assumptions and taking a multiplier of 41 years at 3%, was $86,360. The defendants submitted that such claims were misguided, and that the fact that Mr. Shervey performed some domestic tasks was not persuasive evidence of a need for such services. It was suggested that a nominal allowance of $2,000 should be made.
The law for Australia and for this case (it has now been altered by Parliament for later cases) is laid down by the High Court in Van Gervan v. Fenton (1992) 175 C.L.R. 327. There, the majority found that the true basis of a claim for damages with respect to care or services was the plaintiff's need for those services. There was no need to show that the need is or may be productive of financial loss.
The minority paid special attention to the give and take of domestic relationships, where there is often a re-allocation of domestic duties because one partner is injured. On the facts here, there was no examination of that possibility, in any event. This court should award the plaintiff that which she claims. The award should be made from when Mr. Shervey started rendering these services. (It is not asked for before that date.) Up to the present time, that is an amount of $5,000. That figure contains an award of interest,
Therefore, the plaintiff's award of damages can be summarised as follows:
Pain and suffering and loss of amenities | $25,000.00 |
Interest | $1,625.00 |
Past economic loss | $15,000.00 |
Interest | $2,347.00 |
Future economic loss | $87,600.00 |
Agreed medical expenses (including interest) | $2,594.35 |
Agreed travelling expenses | $925.80 |
Other agreed special damages | $892.10 |
Interest on last two amounts | $709.00 |
Past G v. K services | $5,520.00 |
Interest on past G v. K | $166.00 Future G v. K |
| $86,360.00 |
TOTAL | $228,739.25 |
In that total, an amount of $4,847 has been allowed for interest.
The Responsibility of Each Defendant
In Queensland, the responsibility of successive tortfeasors, each causing injury to the plaintiff, is established in the decision of the Full Court in Nilon v. Bezzina (1988) 2 Qd.R. 420. In that case, the medical evidence led to the conclusion that each tortfeasor was responsible for 50% of the plaintiff's cumulative loss. However, the Full Court recognised the possibility, if the trial had been conducted differently, of the effects of the first accident being entirely “submerged” or “swallowed up” or “obliterated” or “overwhelmed” by the second accident, and so made irrelevant in the assessment of the plaintiff's damages, after the time of that second accident. The statement of Windeyer J. in Faulkner v. Keffalinos (1970) 45 A.L.J.R. 1885 was adopted.
“There is I think a critical distinction between the supervening happening that prevents a particular damage occurring as a result of the tort and a supervening happening that causes the harm caused by the tort to have added gravity. In the first class of case the supervening event diminishes the damages which flow from the tort: in the second class it merely adds to them so that the tortfeasor responsible for the first accident remains liable for the harm he caused, which is not merged in the combined result of his wrongdoing and the later event. The distinction is not either easily made or preserved...”.
Here, it seems that only a slight injury resulted from the kitchen fall, and that its effects were subsumed in those resulting from the second fall. There are a number of factors which lead to that conclusion.
- (a)It appears that the plaintiff's subjective pain and distress was considerably greater after the second fall. Her own evidence, and her own accounts to the medical practitioners, shows that. It is also the effect of McHale's evidence, as he observed both falls.
- (b)The plaintiff was able to continue her work in the kitchen, change and get dressed, go to the disco, and have a dance. In doing so she appeared to be acting normally to those who saw her. She did not mention any consequences of the kitchen fall to Miss Poulter.
- (c)In the second fall, it seems that the plaintiff landed heavily and squarely on her backside, or the end of the spine. In the kitchen fall, it seems probable that she was partly able to break the effect of the fall, and fell to one side.
- (d)The plaintiff said in evidence that the consequences of the first fall were “of nuisance value”, but that the consequences of the second fall were much greater.
- (e)She required greater assistance after the second fall, and demonstrated greater distress to those who helped her. I do not accept that she continued to dance.
- (e)The preponderance of medical opinion was to the effect that the second fall gave rise to the more severe consequences. Dr. Bendeich thought that it was probable, that the effects of the disco fall subsumed or overwhelmed the effects of the kitchen fall. Dr. Curtis thought that the second fall in isolation, in producing sciatica, would have produced a level of disability similar to or only slightly less than which she had before. He thought that the second accident subsumed the effects of the first. Likewise, Dr. Boyes thought that her symptoms could have resulted wholly from the second fall, even if there had been no kitchen fall.
- (f)There was no persuasive evidence, to the effect that the first fall had a continuing effect, in that the consequences of the second fall were built upon it.
(Two pieces of evidence which point to a greater significance in the kitchen fall should be mentioned. First, there is Exhibit 13, which is a statement by the plaintiff to the workers' compensation authorities. In that statement, she expresses the view that she damaged her lower back in the first fall, where she definitely sustained an injury. Secondly, there is her interview with Dr. Walters on 12th November 1990, a few days after her injury. She mentioned a fall in the kitchen at work to him, but said nothing about a fall in the disco. In each case, the likely explanation is that Miss Soutter appreciated that she had a greater chance of recovering compensation from her employer than from the licensee of the disco I prefer her later statements, in evidence.)
In the result, the plaintiff is entitled to recover for the effects of the fall in the kitchen, until subsumed by the fall at the disco. Counsel for the first defendant suggests $100, and I adopt that figure.
If I should be wrong on the question of liability as against the second defendant, then the plaintiff would be entitled to all of her damages as assessed, less that $100, as against the second defendant.
The formal orders are:
- (a)The plaintiff have judgment against the first defendant for $100.
- (b)The plaintiff's claim against the second defendant is dismissed.
- (c)That the first defendant pay to the plaintiff her costs of and incidental to the plaintiff's action against the first defendant to be taxed and paid up until 5 February 1995.
- (d)That the plaintiff pay the first defendant's costs on a party and party basis to be taxed on and after 6 February 1995 on the scale appropriate where the amount claimed is above $50,000.
- (e)That the plaintiff to pay the second defendant's costs of the action to be taxed on the scale for claims above $50,000.