Burkhardt v Dackcombe Pty Ltd
[1999] QDC 262
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- Unreported Judgment
- Burkhardt v Dackcombe Pty Ltd[1999] QDC 262
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Burkhardt v Dackcombe Pty Ltd[1999] QDC 262
Burkhardt v Dackcombe Pty Ltd[1999] QDC 262
DISTRICT COURT | Plaint No 1868 of 1998 |
CIVIL JURISDICTION
JUDGE FORDE
ADELINE EVELYN BURKHARDT | Plaintiff |
and
DACKCOMBE PTY LTD | Defendant |
BRISBANE
DATE 29/10/99
JUDGMENT
HIS HONOUR: Judgment is given for the plaintiff against the defendant in the sum of $112,905.80, the defendant to pay the plaintiff's costs of and incidental to the action including reserved costs, if any, to be assessed.
...
HIS HONOUR: Judgment has been given for the plaintiff against the defendant in the sum of $112,905.80. There was an apportionment of 80/20 in the plaintiff's favour reducing the total of $141,132.25 by $28,226.45.
Two offers to settle have been made by the plaintiff on 3 June 1999 to settle for the sum of $7,500 and also in relation to liability that the defendant could be liable for 79 per cent of the subject accident. The plaintiff's offers are therefore relevant and in her favour.
An earlier offer by the plaintiff of $100,000 was made on 23 April 1999 and not accepted. In any event that offer is not relevant given the lapse of time and the new offers. Rule 118 of the District Court Rules it is conceded by both parties applies. The effect of that rule is that if the offer made is more favourable to the plaintiff then it is entitled to its costs on a solicitor and own client basis for the whole of the action unless some other reason is show why that order ought not to be made.
Mr Lee, on the part of the defendant, makes the following points in that respect. Firstly that the quantum of the claim was overstated by the plaintiff. That is not an unusual occurrence in cases of this nature. It is further said that it was reasonable for the defendant to argue liability. That is a correct statement on this case, particularly as there has been an apportionment, but the offer to settle on liability takes that into account in any event.
It is said that the particulars were inadequate. However, the main finding in this case I have relied upon 5(f) of the plaint and in particular the steepness of the slop and poor traction. In relation to the lighting it is discussed in the context of contributory negligence.
The lateness of service of certain documents has been referred to. For example Dr Pentis' report, but I comment in my judgment that it shows nothing of significance by way of new grounds. The Centrelink documents were not available to the defence but an earlier application could have been made and the point argued as to whether the privilege point could be upheld.
In any event there was on the part of the plaintiff cooperation at trial to provide the necessary signature once it was realised that those documents were not forthcoming from Centrelink.
I do not propose to deal with all points made in detail by Mr Lee, but on the facts of this case and in particular the nature of the offer on liability, there seems no reason to depart from the usual rule and therefore the order in relation to costs will include after the word “assessed” to be added “on a solicitor and client basis”.
...
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND |
[Before FORDE DCJ]
[Adeline Evelyn Burkhardt v Dackcombe Pty Ltd]
Plaint No 1868 of 1998
BETWEEN:
ADELINE EVELYN BURKHARDT | Plaintiff |
AND:
DACKCOMBE PTY LTD | Defendant |
JUDGMENT
Judgment delivered: | 29th October, 1999 |
Catchwords: | NEGLIGENCE – personal injuries – occupier's liability-response of the reasonable person to the magnitude of risk – 15% loss of use of the left lower limb – see Wyong Shire Council v Shirt (1980-1981) 145 CLR 40, Jaenke & Jaenke v Hinton (Court of Appeal No 37 of 1995 unreported decision dated 3 November 1995), Castle v Weeks & ors (Unreported Supreme Court of Queensland, 18 December 1998), Morgan v Sherton Pty Ltd (Unreported NSW CA, 24 March 1999), McLachlan v Purchas (Unreported Full Court of WA, 21 December 1998), Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, Phyllis v Dalv (1988) 15 NSWLR 65, Inverell Municipal Council v Pennington (1993) ATR 81, 234, The Public Trustee as Administrator of the Estate of the Late Peter Saroukas v Sutherland Shire Council (CA NSW Unreported, 28 November 1991, 28 February 1992), Cooper v Southern Portland Cement (1972) 128 CLR 427, Bankstown Foundry Pty Ltd v Braistnia (1986) 160 CLR 301, Podreberek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, Hedge & ors v Trenerry (4911 of 1996, Unreported, 7 November 1997), Hvne & Son and anor v Tomlinson (Appeal 8283 of 1997, Unreported, 22nd May 1998). |
Counsel: | Mr T Williams for the Plaintiff Mr S Lee for the Defendant |
Solicitor: | K.M. Splatt & Associates for the Plaintiff Dunhill Madden Butler for the Defendant |
Hearing Dates: | 27, 28 October 1999 |
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 1868 of 1998 |
BETWEEN:
ADELINE EVELYN BURKHARDT | Plaintiff |
AND:
DACKCOMBE PTY LTD | Defendant |
REASONS FOR JUDGMENT - FORDE D.C.J.
Delivered the 29th day of October 1999
- [1]The plaintiff in this action is Adeline Evelyn Burkhardt. She sues the defendant, Dackcombe Pty Ltd, for damages for negligence and/or breach of duty of care as the occupier of the Riverhills Caravan Park, Eagleby. The plaintiff was a long term resident of the said caravan park. On or about the 18th day of June, 1997 at about 3.30pm, the plaintiff was walking from the office at the said caravan park to a toilet or amenities block, when she fell down an embankment. As a result of the fall, the plaintiff suffered personal injuries. The path she was following is shown in Exhibits 2-5 and also Exhibits 15A-C. The path led to the lower road. The path is next to a lot on the plan being Exhibit 14. The plaintiff was anxious to go to the toilet and was proceeding to the pathway as shown on Exhibit 14 between lots 7 and 9 and then to the amenities block. It was her practice to follow a longer route as marked on Exhibit 14. She had not taken the shorter route previously. She had observed other persons proceeding down the embankment on other occasions. The plaintiff gave evidence that she had lived at the said caravan park for about five years. She said that she was unaware of any rule that the path where she fell was not to be used for access to the lower road.
- [2]I generally accept the evidence of the plaintiff. She gave her evidence in a forthright manner and showed on occasions that she was prepared to make concessions. She accepted for example that after the accident, she stated that it was “the first and last occasion that she would use the embankment and that she should not have gone down the path”. She went on to say that she did not expect it to be so sudden. I find that this was not an acceptance of responsibility on her part but a realisation that the embankment was deceptive in nature.
- [3]Other witnesses called by the plaintiff generally supported the plaintiff's evidence that there was no rule prohibiting residents from using this path. The general thrust of the evidence was that other residents used this access as a shortcut. The suggestion put to them that the management told residents not to use that access was rejected. For example, Mr Glyn Mawby stated that he saw the manager Jeff Frost who told him he should not be using the access. When Mawby pointed out to Frost that he, Frost, was using the access nothing further was said and Mawby continued to use the access. Mr Frost accepted this version of events. I accept that evidence of Mr Mawby. It was also accepted by the witnesses for the plaintiff that the incline or steepness of the embankment was plainly visible. Although Brenda McKee accepted that there was a rule not to cut across other sites, it seems that the path taken by the plaintiff passed a caravan which was not always occupied. One can infer from the evidence of the witnesses for the plaintiff that this path was used as an access path between the office and sites lower down. Mrs Atkins, who had lived at the caravan park for some 23 years, observed such a practice. She could see such movement from the kitchen of her caravan and also when watering her garden. She had moved from the said caravan site. I have no reason to doubt her evidence.
- [4]I reject the defence case that there was a rule which was enforced by management that the access used by the plaintiff on this occasion was prohibited. The questions for determination in this case are whether the risk was foreseeable and whether there was some practical means of minimising the risk. The statement of the principle can be found in Wvong Shire Council v Shirt (1980-1981) 146 CLR 40 at 48:
“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 of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
- [5]The defendant submits that the risk of injury to the plaintiff by injuring her ankle was not reasonably foreseeable. Alternatively, it was argued that there was no breach of duty because the risk of injury was so slight as not to warrant the taking of the precautionary measures which it is alleged should have been taken.
Foreseeability
- [6]In Jaenke & Jaenke v Hinton (Court of Appeal No. 37 of 1995, an unreported decision dated 3rd November, 1995) Thomas J stated:
“In addressing the question whether a given situation creates a foreseeable risk of injury, it is not legitimate to use hindsight. Unfortunately the fact that an injury has in fact resulted tends to compromise the exercise, as hindsight of an actual mishap makes it difficult to address the question objectively and realistically. Knowledge of the fact that an injury has occurred commonly makes it difficult for a tribunal to hold that the risk of injury was not foreseeable, or to use the terms of Mason JA in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47-48, to hold that such a risk was “far-fetched” or “fanciful”.”
- [7]When one looks at the steepness of the embankment and the likelihood of use of the path as a short-cut at various times of the day or night, then a reasonable occupier in the position of the defendant should foresee that some residents may have a difficulty negotiating the slope. Both managers, Jeff Evans and Geoff Frost, accepted that residents did use the subject short cut, as did they.
- [8]The defence have made reference to various cases which require some discussion. Muir J in Castle v Weeks & ors. (Unreported Supreme Court of Queensland, 18th December 1998) stated:
“In my view, the question of whether there was a foreseeable risk of injury to the plaintiff if the bin was placed on the slope in the front yard of the house is not without difficulty. But for there to be a foreseeable risk of injury for present purposes, it is sufficient that the defendants should have reasonably foreseen in a general way that the plaintiff might injure herself by slipping or failing in the yard: Phillis v Daly (1988) 15 NSWLR 65 at 77. The slope, although not great, was distinct. One's every day experiences tell one that there is a greater risk of slipping on a sloping surface than a flat one. Changing conditions on a sloping grassed surface in the yard of a house property (such as the extent of grass cover, moisture levels and leaf accumulation) will tend to vary the degree of such risks from time to time. Not without hesitation I have concluded that a reasonable person in the position of the defendants would have foreseen that such a risk of injury to the plaintiff or to a class of persons including the plaintiff was not “for fetched or fanciful”: cf Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431 and Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 48. “While a risk which is farfetched or fanciful is not a real risk, a risk may be real even though it is unlikely to occur or is remote”: Phillis v Daly (supra) at 65, per McHugh JA, citing Wyong Shire Council v Shirt at 48 and The Wagon Mound (No 2) [1967] 1 AC 617 at 641-643.”
- [9]In the present case, I find that a reasonable person in the position of managers of the defendant's caravan park would have foreseen that a risk of injury to a resident such as the plaintiff was not “far-fetched or fanciful”.
- [10]One can contrast the present case to that cited of Morgan v Sherton Pty Ltd (Unreported, New South Wales Court of Appeal, 24th March, 1999). In that case the Court held that it was not foreseeable that a member of the public would run up and jump over a garden dividing bed without ensuring that he would not be tripped by a plant within the garden bed, particularly in poor light. That finding is understandable.
- [11]Similarly, in McLachlan Purchas & Ors. (Unreported Full Court of Western Australia, 21st December, 1998), it was held that it was not a foreseeable risk that an employee would step on wet grass as she alighted from her car. Even if it were a foreseeable risk, then it was not more than an “every day risk or danger with which users of facilities such as grass car parks, must deal by taking care for their own safety”. The facts differ from the present case.
“What a reasonable man would do by way of response to the risk”
- [12]The relevant duty on the defendant as the occupier of land was to take reasonable care to avoid foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488; Williams J in Jaenke & anor v Hinton op.cit. p 14.
- [13]Jaenke's case was not a case of an entrant being unfamiliar with the features of the ground in question. However, the plaintiff, Mrs Burkhardt, was not familiar with that part of the caravan park where she fell, as she had not traversed the path previously. However, it was daylight and the general nature of the ground was visible. The plaintiff did not, I find, appreciate the steepness of the slope. It was not an everyday risk which she experienced in the caravan park. It was not, I find, a slight risk.
- [14]After discussing various cases, Williams J op.cit. p 7 referred to the majority decision in Phyllis v Daly (1988) 15 NSW 65:
“Samuels JA concluded that on the facts of that case “the chance of a visitor to the premises coming to grief in stepping on and over the logs was so slight as to require no precaution omitted by the occupiers.”
- [15]Pincus J in Jaenke's case adopted the test formulated by Mahoney J in Inverell Municipal Council v Pennington (1993) ATR 81, 234 at 62, 401:
“In my opinion, the judgment of Mason J (in Wyong Shire Council v Shirt) establishes that the law does not in every case require a defendant to go so far. It measures what the defendant is to do by the response of a reasonable person.”
- [16]A defendant is “not required to take steps to guard against the risk of injury the result of an entrant's deliberate or reckless behaviour which is likely to cause her injury”: Morgan v Sherton Pty Ltd op.cit. p 4. It could not be said in the present case that the plaintiff, Mrs Burkhardt, acted deliberately or recklessly.
- [17]Muir J in applying the test in Wvong Shire Council v Shirt stated:
“In my view, a reasonable person, if he or she had perceived a risk of injury from the positioning of the bin on the water meter, would have regarded the chance of its eventuating as slight. Such a person would also have the thought that if a person using the bin fell, the consequences would not be severe. In other words, there would be no reasonable expectation that serious injury would result from a fall on a relatively gently sloping yard. As I have mentioned, the alternative courses of action which could have been taken would have posed disadvantages of their own.
The risk, although real, was small and the circumstances were “such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”. See Wyong Shire Council v Shirt (supra) at 45 per Mason J, referring to The Wagon Mound No 2 [1967] 1 AC 617 at 642-3.”
- [18]A balancing exercise in the present case must have regard to the defendant's policy of discouraging access through sites, and on the other hand allowing such a practice to occur which involved negotiating the embankment.
- [19]Muir J also considered that part of the balancing exercise in that case was the duty of the employer to provide a safe system of work. In the present case, it was the duty of the occupier to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.
- [20]The witnesses called by the defence corroborated the plaintiff's version that she was never told not to use the subject path or short cut. The plaintiff's counsel relies on lack of signage or allowing a path to be made in this area. There is no evidence that the plaintiff would have had regard to or would have obeyed the sign: see The Public Trustee as Administrator of the Estate of the Late Peter Saroukas v Sutherland Shire Council CA NSW Unreported 28th November, 1991, 28th February, 1992, p 9-10. On this aspect of alleged negligence, I find in favour of the defendant.
“Allowing a path to be made in this area”
- [21]I find that from time to time, the management advised residents against going through sites as access routes. The plaintiff was not so advised, certainly in respect of the subject path. Residents used the subject path, or short cut, frequently. The worn grass as depicted in the photographs supports this finding. If management had constructed steps it may have encouraged use of the short cut. This was against their policy. However, realising that tenants did use the short cut, a lessening of the steepness of the bank would, I find, have reduced the risk. The failure to do so has materially contributed to the present accident. This could have been done recognising the use both day and night and yet not encouraging such use. It could have been done in a subtle manner as part of some landscaping project.
- [22]Even though the risk of injury is unlikely to occur it can still be plainly foreseeable. The fact that there is no evidence that other persons have fallen is but one factor to take into account. Having observed the photographs and appreciated the nature of the terrain, I find that the risk was plainly foreseeable. Further, little expense or inconvenience would have been suffered by the defendant to provide a more graded path. Having considered the magnitude of the risk and the degree of probability, I am satisfied that the defendant has failed in its duty of care to the plaintiff as a resident of the said caravan park. I find that the defendant failed to take reasonable steps to improve the surface traction of the slope, and by allowing the path to be used as a thoroughfare when it was inherently unsafe by reason of the steepness of the slope and poor traction. It failed in its duty of care to the plaintiff as a resident.
Contributory Negligence
- [23]The standard of care expected of a reasonable man requires him to take account of the possibility of inadvertence and negligent conduct on the part of others: Cooper v Southern Portland Cement (1972) 128 CLR 427, 449.
- [24]The test to be applied in assessing any contributory negligence can be found in Bankstown Foundary Pty Ltd v Braistina (1986) 160 CLR 301 at 311, where the Court applied Podreberek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v. Gypsum Mines Ltd. ( [1953] AC 663, at p 682), Smith v. McIntyre ( [1958] Tas. S.R. 36, pp 42-49) and Broadhurst v. Millman ( [1976] VR 208, at p 219), and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
- [25]The plaintiff did not realise it was so steep. The area was shadowed by the trees; Exhibit 15A shows the nature of the shadows. She stated she “put one foot out and just ... there was nothing there except for the incline and down I went.” I am satisfied that the plaintiff was in a bit of a hurry to get to the toilet and failed to keep a proper lookout. I find her to be 20% responsible for failing to take care for her own safety.
Quantum of Damages
- [26]The plaintiff was born on the 15th day of February, 1941. She was 56 years of age as at the time of the accident. Prior to the said accident, she had had some health problems including high blood pressure, symptoms of menopause, some history of vertigo and emotional problems as a result of the tragic death of her son in 1995. One of the reasons for her leaving work was that she had worked with her son at the brewery cleaning for Mr. Austin and other workers often asked her what had been the result of the autopsy. Also, she had suffered symptoms of osteoarthritis in both of her knees. Mr. Austin had been aware of the problems which she had with the arthritis, but he commented that it did not stop her from carrying out her duties. The plaintiff said that she was able to cope but it did provide another reason for ceasing work when she did, apart from the effects of her son's death. I accept the evidence of the plaintiff generally.
Nature of medical evidence
- [27]As a result of the fall, the plaintiff attended at the Logan Hospital. An X-ray examination revealed a trimalleolar fracture with dislocation of the left ankle. Her left ankle was placed in a plaster of Paris backslab and she was given analgesia. On 19th June, 1997, she underwent the operation of open reduction and internal fixation of the left ankle. On 23rd June, 1997, her ankle was placed in a cast and she was discharged home. By 23rd July, 1997, the plaintiff was walking with full weight bearing. She complained of soreness in the left ankle. It was observed that as at 17th September, 1997, she was still walking with a limp and the hospital advised her to continue with physiotherapy.
- [28]The orthopaedic evidence assesses her residual disability at between 10 and 15%. For some as active as the plaintiff in her job as an industrial cleaner the effect of the injury in practical terms is likely to be, I find, up to 15%. The metal fixation devices have not been removed and it likely that they will remain.
Pain and suffering and loss of amenities
- [29]The plaintiff saw Dr. Pentis on 31st August, 1998. At that time her ankle was still sore and slightly swollen. At trial it was observed that the scarring on each side of the ankle and foot had faded considerably. When she saw Dr. Pentis, the plaintiff stated that she found it difficult going up slopes and walking on uneven ground. She had tried to jump and jog but with difficulty. She walked with a limp and had difficulty negotiating stairs. She was using Feldane at that time. It is an anti-inflammatory medication and painkiller. Dr. Pentis noticed slight wasting of the calf. The ankle was tender and she had difficulty standing on the affected leg. At that time Dr. Pentis was of the view that she could not return to her employment as an industrial cleaner. When Dr. Pentis saw the plaintiff on 23rd September, 1999, the position had not changed significantly. He opined that the plaintiff may suffer some degeneration of her ankle as a result of the injury. He did concede at trial that the fractures have united. Dr. Boys stated that there was no evidence of chondrolysis or post traumatic degenerative change. He saw the plaintiff on 12th February, 1999. Because of the good union of the fractures, I find that degenerative change is unlikely to occur within the foreseeable future.
- [30]The plaintiff is able to perform most of the daily tasks of life but with some difficulty. I find that she is a stoic person who wants to get on with her life and put her problems behind her. If she does return to work, then she will suffer added pain on a daily basis. I assess her loss under this head at $30,000.00. I allow interest at 2% for a period of 2 and one-third years on the sum of $15,000.00. This produces a figure of $700.00.
Economic Loss
- [31]Prior to the accident, the plaintiff had long term employment with Mr. Mark Austin. Mr. Austin was employed by Queensland Breweries at Yatala as a brewery technician. He also held the cleaning contract for some eleven years up until the present time and continues to do so. He was very impressed by the plaintiff as a worker. Her earnings from 1993 show the consistency of her employment and the quantum (Exhibit 10-summary). The plaintiff gave mixed reasons for leaving her employment, but I am satisfied that the main reason was because of her son's death. Just prior to this accident, the plaintiff had approached Mr. Austin with a view to re-employing her. Mr. Austin gave evidence that he had agreed to provide a job from July, 1997. In fact, the number of employees of Mr. Austin's operation has increased from 15 in 1996 to 22 at the present time. I have no doubt that the plaintiff would have been able to return to work for Mr. Austin's business.
- [32]The plaintiff was limited in the type of employment which she would undertake. She had attained grade 5 level education. Her employment had been as a farm hand, shop assistant, bar attendant and cleaner. It was likely that but for this accident, the plaintiff who was getting over her son's death, decided that it would be a positive step to get back to work. Mr.Austin rejected the suggestion that cleaners well into their 50's would not function as efficiently. He confirmed that his female workers continue to 65. He confirmed that he was aware of the plaintiff's problems with her knees but that it did not interfere with her duties.
Her duties included:
• polishing with an industrial polisher
• carrying equipment up and down stairs
• climbing rung ladders to clean the tops of vats
• cleaning a palletiser and walking on and over and under conveyor belts
• squatting under equipment to clean with suds
• working in heavy industrial Wellington boots
• mixing chemicals
• getting onto scaffolding and mobile ladders to clean offices
• scrubbing with caustic soda
- [33]Mr. Austin confirmed that even with limited duties as a cleaner, it was still necessary to get up ladders and clean windows and other items. I am satisfied that as a result of the accident that the plaintiff is incapable of doing this. Dr. Boys conceded that the plaintiff would have discomfort with protracted activity. He believed that she was capable of part time work. The plaintiff is desirous of doing part time work and was probably capable of doing so within 12 months after the accident. I accept that from say June, 1998, that the plaintiff could have carried out part time work for up to 4 hours per day e.g. ironing or domestic cleaning. Dr. Boys in cross examination once he was made aware of the duties of an industrial cleaner resiled from his evidence in chief that the plaintiff could do industrial cleaning for up to 4 hours per day.
Pre-trial economic loss
- [34]For the year ended 30th June, 1996, the plaintiff earned some $19,471.00 net. She worked up until May. It would be reasonable to allow a net loss of $400.00 per week for the year following the accident even without any increase in wages. This would allow time for recovery and at least pursue part time work thereafter. Ms. Coles says that the rate for ironing is $10-12 per hour. If one allows say $11.00 per hour for four hours per day five days per week, then the plaintiff was capable of earning the sum of $200.00 net per week approximately from July, 1998.
- [35]A report was obtained from Messrs. Vincents, a firm of accountants. Mr. Thompson gave evidence in support of the report. As the plaintiff has not worked since the accident, the accountants allowed the full amount of the loss with appropriate increases pursuant to the Award from the accident date to 28th October, 1999. I accept this methodology which produces a net loss of $53,000.00. To be deducted from this figure is a residual capacity to earn from say 1st July, 1998 to 28th October, 1999. This produces a deduction of $13,000.00. Being the stoic person that she is, I am satisfied that the plaintiff would have continued to work for some years. Her health problems were able to be treated. It may be that she had some time off as she grew older because of her arthritis. Her vertigo, I find, was related to sleeping pills which she stopped taking and she had no further problems. Many people continue to work with high blood pressure or the effects of menopause with appropriate treatment. Allowing for some time off work pre-trial, I reduce the figure for pre-trial economic loss to 535,000.00. The assessment by Messrs. Vincents includes an overtime component. Mr. Austin said that overtime was still available. However, one has to allow for the fact that the plaintiff may not have continued to work at the same rate up to the present.
Interest on pre-trial economic loss
- [36]It is conceded by the plaintiff's counsel that the plaintiff received some $15,000.00 by way of Social Security payments. If one deducts this from $35,000.00 then interest can be assessed on S20,000.00 for two and one third years at the rate of 5%. This produces a figure of $2,330.00. The plaintiff claims 5% interest only.
Future economic loss
- [37]Messrs. Vincents have allowed a net figure of $475.00 per week to 30th June, 2000. That figure represents the present value of her earnings. In assessing the length of the balance of her working life, one has to discount for the usual vicissitudes of life such as sickness or accident. Also, in the present case the plaintiff had arthritis to both knee joints. Her symptoms have settled since she gave up work. For those reasons, I find that it was unlikely that she would have continued to earn income past the age of 62. I intend to allow another four years of loss of earnings subject to her residual earning capacity. If one reduces the figure of $475.00 to $275.00 then there is recognition that the plaintiff is capable of earning something in the range of $200.00 per week as discussed previously. Over 4 years, the present value of a loss of $275.00 per week is $52,000.00. The figure does not take into account any increase and so is a conservative one but with due recognition of the discounting factors referred to.
Loss of superannuation
- [38]Mr Thompson provided figures for both past and future loss of superannuation. He calculated that it represented some 6% of earnings. Decisions of the Queensland Court of Appeal support a per cent in that range without the necessity of complex calculations depending upon what is allowed in the judgment figures: Hedge and Ors. v Trenerry (4911 of 1996, unreported, 7th November, 1997); Hyne & Son and Anor. v Tomlinson (Appeal 8283 of 1997, unreported, 22nd May, 1998). I allow for pre-trial 6% on the sum of $35,000.00 and for the future 6% on the sum of $52,000.00 which produces a total of $5220.00.
Past Griffiths v. Kerkemeyer
- [39]The plaintiff suggested that she needed the assistance from her granddaughter for some three to four weeks following her discharge from hospital and thereafter her husband. She required help bathing and with toiletry, washing and doing other household tasks. I accept her evidence and that of her husband. For the first three months, I allow 4 hours per day at the agreed rate of $10.00 per hour. This produces a total of $3,360.00. Thereafter and up to the present, Mr. Burkhardt has provided some assistance. The plaintiff can perform most of the day to day tasks. The plaintiff needs assistance whilst shopping, she cannot now mow the lawn nor do the heavy gardening. Having determined that the plaintiff is capable of working up to four hours per day doing domestic cleaning or ironing, the claim for care on a needs basis is limited. I allow two hours per week from October, 1997 to the present. This would be a figure of $2080.00. The total for pre-trial care is therefore $5,440.00.1 allow 2% interest for say two years: $217.00
Future Griffiths v. Kerkemeyer
- [40]The plaintiff was suffering from osteoarthritis to both of her knees prior to the accident. In her later life she may have required assistance in any event. I reduce the period therefore for future care to say 10 years. Allowing two hours per week at $10.00 per hour over ten years produces a present value of $8,208.00. The plaintiff is a stoic woman who will endeavour to do most tasks herself save for those which are beyond her because of her disability.
Special Damages
- [41]These are not disputed and add up to $1868,25 (Exhibit 16). The defendant's counsel concedes interest of $258.00 is payable. However, plaintiff's counsel correctly deducted the ambulance and the HIC refund and claims interest of $169.00 only.
Summary of Quantum
Pain and suffering and loss of amenities | 30,000.00 |
Interest | 700.00 |
Pre-trial economic loss | 35,000.00 |
Interest | 2,330.00 |
Future Economic Loss | 52,000.00 |
Superannuation | 5,200.00 |
Past Griffiths v Kerkemeyer | 5,440.00 |
Interest | 217.00 |
Future Griffiths v Kerkemeyer | 8,208.00 |
Specials | 1,868.25 |
Interest | 169.00 |
141,132.25 | |
Less 20% apportionment | 28,226.45 |
$112,905.80 |
ORDERS
- 1.Judgment is given for the plaintiff against the defendant in the sum of $112,905.80.
- 2.The defendant do pay the plaintiff's costs of and incidental to the action including reserve costs, if any, to be assessed on a solicitor and client basis.