Treloar v Dache-Haven Pty. Ltd.
[2001] QDC 44
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- Treloar v Dache-Haven Pty. Ltd.[2001] QDC 44
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Treloar v Dache-Haven Pty. Ltd.[2001] QDC 44
Treloar v Dache-Haven Pty. Ltd.[2001] QDC 44
DISTRICT COURT OF QUEENSLAND
CITATION: | Treloar v. Dache-Haven Pty Limited [2001] QDC 044 |
PARTIES: | LEONIE MERLE TRELOAR (Plaintiff) v. DACHE-HAVEN PTY LIMITED (Defendant) |
FILE NO/S: | Plaint 1030 of 1997 |
DIVISION: | |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 6 April 2001 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 19, 20 March 2001 |
JUDGE: | McGill DCJ |
ORDER: | Claim dismissed with costs |
CATCHWORDS: | NEGLIGENCE – Dangerous Premises – occupier’s liability – wooden floor – whether use of in commercial premises near stairs negligent Phillis v. Daly (1988) 15 NSWLR 65 - applied Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479 – applied Wyong Shire Council v. Shirt (1980) 146 CLR 40 - applied Hackshaw v. Shaw (1984) 155 CLR 614 - cited Ibraham v. Myer Queensland Stores Ltd (Appeal 6505/96, 1.8.97, unreported) - considered Jaenke v. Hinton (1995) Aust.Tort Rep. 81-368 – considered Madaffari v. Rydges Hotel Ltd (1996) ACTSC 91 Shephard v. Loxton Hotel-Motel Inc (1998) SADC 3826 Harrison v. Joseph (Cairns Writ 179/85, Cooper J, 27.8.91, unreported) Hasell v. Whittred Bread Pty Ltd (Maryborough Writ 1/83, Connolly J, 4.8.87, unreported) Power v. Jan (Cairns Writ 51/92, Williams J, 29.4.93, unreported) |
COUNSEL: | R. N. Alldridge for plaintiff K.S. Howe for defendant (19/3 only) |
SOLICITORS: | J O'Hare & Co for plaintiff Micahel Stewart for defendant |
- [1]This is an action for damages for injuries suffered by the plaintiff when she fell down some stairs in the business premises of the defendant. The plaintiff alleges that the fall was caused by negligence in relation to the state of those premises, and a breach of a statutory duty imposed by the Workplace Health and Safety Act 1991. The plaintiff was not an employee of the defendant at the time, and reliance on the statutory duty was, properly, not pressed in submissions on behalf of the plaintiff. Liability and quantum are both in issue.
Liability: Facts
- [2]The defendant operated a café in Central Brisbane from early 1995 until 1997 when the business was sold: p.103-4. It was located on the ground floor, or part of the ground floor, and basement or part of the basement, of a building on an intersection. Entry was through a doorway into a rectangular area wider than the doorway but relatively shallow; at the right hand end of this away from the door a flight of stairs led down to the basement. Along the rest of the side opposite the door there were two steps up to the main part of the café, at the rear of which was the counter and servery. There were tables and chairs downstairs and in the area above the two steps, and in addition, to the right of the doorway, there was a small wall mounted table or bench and two stools so that two people could sit there. All of this is shown in the photographs which form part of Exhibit 22, which were taken in 1997. Since then there have been some changes made to the furnishings and the bench, as appears in the photographs, Exhibit 24, taken this March: p.12.
- [3]The plaintiff was with her husband on 15 April 1996 when they went into the café for the purpose of his purchasing something to eat: p.10. While he went to the counter, she went around to the right to the small table and sat on a stool, at the end of the table away from the door, where she could watch her husband while he went to the counter and was served: p.10. When she saw that he was coming to go, she got up from the school, turned and bent slightly to push the stool under the wall-mounted table, and then went to turn slightly to the right to move off towards the door when her foot[1] slipped from under her and she fell over backwards: p.13.
- [4]The edge of the table was 1.1 metres from the edge of the stairs (Exhibit 22) and when she fell backwards she fell on to the staircase rather than on to the floor, and slid down the staircase on her back until she reached the foot of the stairs (p.43) where she hit her head on something, she thinks a small wall near the foot of the stairs (p.14), although it may be that it was just the floor at the foot of the stairs. She was left lying on her back at the foot of the stairs with her feet on the stairs: p. 105. She felt pain in a number of places at once, and was unable to get up: p.14. There was pain in her back and her neck, and a brace was put on her neck before she was removed by ambulance: p.15. While lying there she experienced an angina attack: p.14.
The Plaintiff’s Case
- [5]It was not alleged that there was anything spilled on the floor, any contaminant on which the plaintiff had slipped. The plaintiff’s case was simply that the floor was itself so slippery that it was negligent for such a floor to be used in commercial premises, and that the small table and stool were located so close to the top of the stairs leading down to the basement that it was dangerous for them to be positioned there, because of the risk of any person who fell in that area falling down the stairs. There was evidence directed to the former issue, but the latter was argued without the benefit of any specific expert evidence.
- [6]The floor of the area where the plaintiff was standing at that time was a wooden floor which had been sanded smooth and then had a clear gloss coating painted on it, so as to produce a floor which is commonly, although inaccurately, described as a polished wooden floor. The floor was not polished with wax or any other substance; it was swept daily and mopped daily, but was cleaned only with hot water and methylated spirits: p.106. The coating was an ordinary floor coating; it was not specifically a non-slip coating.
- [7]The evidence of the defendant’s director was that it was resurfaced at about the time the plaintiff had her fall, and I think it more likely than not that this occurred before the fall because the plaintiff’s evidence was to the effect that the floor was in quite good condition and appeared shiny and smooth when she was there. It would have been progressively more worn thereafter, and the plaintiff said that when she returned to the premises this year it was different, the floor being dull and not slippery and hard on her shoes: p.12.
- [8]There were some photographs taken of it then (Exhibit 24) although none which show the surface of the floor as clearly do the photographs in Exhibit 22. There was some conflict between this evidence and the evidence of a loss adjustor, Mr. McKinnon, who had seen the floor in June 1996 and again in December 2000 (p.108) and said that on the latter the floor seemed to be similar to the floor on the earlier visit: p.109. There have been some changes to the premises as appears in the photograph as a result of the sale of the business, but, so far as I can tell, there has not been any significant change to the floor other than such wear as one would expect from the passage of time.
- [9]Unless it has been resurfaced, it would certainly be much more worn that it was at the time the plaintiff fell, although I do not accept the plaintiff’s evidence as to the extent of the disparity. She described the state of the floor in 1996 as being “very slippery” and said that she had nearly slipped over when she first went in: p.10. On the other hand, she said that now the floor was “no way slippery”: p.12. It is obvious, as will appear later, that this fall has had a dramatic adverse effect on the plaintiff’s life, and she clearly blames the defendant for this, and I think that this is colouring her perception of the difference between the state of the floor then and the state of the floor now.
- [10]The defendant’s director said that during the time he owned the shop he was not aware of any other falls in it (p.103), and there had not been any complaints about the floor being slippery: p.104. He did not find either the stairs or the floor at the top of the stairs slippery: p.104. I accept that evidence. My distinct impression from the whole of Mr. Smith’s evidence was that he was trying to be accurate about what he said.
- [11]In most matters I think the same is true of the plaintiff; for example, when describing what she did before and after the fall, and describing things that have happened to her or things she has done, I think she was reasonably reliable, and was not trying to mislead me. There was some attack on her credit on the basis of the variation in the versions recorded by the various doctors as to how the accident happened. But Exhibit 3 shows that when she went to the hospital on the day of the accident she gave a version essentially the same as that given to me. I think the variation in the versions in the medical reports is more a tribute to the unreliability of such material. Where her evidence involves some subjective element however, such as how slippery the floor was, I think that is likely to be coloured by her response to the various injuries she suffered in this fall, which have had a very substantial effect on her, and caused her considerable distress and indeed some adverse psychiatric consequences, and in these circumstances, although she may well be telling me the truth as honestly as she recalls things, I am wary about placing too much reliance on features of her evidence which contain a significant subjective element, such as assertions about how slippery or otherwise the floors was.
- [12]There is really no reliable evidence as to what happened to the floor after the defendant sold the business, but the most probable subsequent history is that the floor was just left to become progressively more worn as time when by; that is supported to some extent by the photographs, Exhibit 24, and to some extent by the plaintiff’s evidence. It would not really be inconsistent with the evidence of Mr. McKinnon, and has as well some support from a presumption of continuance.
Expert Evidence
- [13]The coefficient of friction of this floor was measured by Mr. Smolakovs, an engineer with formal qualifications in mechanical engineering (p.74) and lengthy experience in the determination of suitable floor surfaces to minimise the risk of slipping in an industrial context, particularly in oil refineries: p.75-6. I think this adequately qualifies him as an expert. He had performed a test to determine the coefficient of friction between one of the shoes the plaintiff was wearing at the time (p.73 – Exhibit 29) and the surface of the store on 13 December 1996, and obtained a reading of .33: Exhibit 22. He said that it was generally accepted that a coefficient of friction of less than .4 meant that the surface was too slippery and was unsafe, so it followed that this was unsafe at the time when he measured it. He also said that there were means of treating such a surface available, such as a clear coating which had fine particles mixed through it, which would increase the coefficient of friction to a level which would be safe, and which could be applied at a relatively low cost.
- [14]The coefficient of friction for the floor was also derived in a number of tests undertaken in January 2001 by Mr. O'Hara, a laboratory technician employed by the Department of Main Roads, who is experienced in measuring coefficients of friction on pedestrian surfaces using the equipment and technique described in the Australian Standard for slip resistant pedestrian surfaces. His evidence (Exhibit 30) was that the floor, when he tested it, produced a coefficient of .55 according to that standard, which, on the basis of that standard, well exceeded the figure for a safe floor[2]: p.118.
- [15]This evidence presents various difficulties for me. It is not entirely clear that there really is a conflict between these two measurements. Mr. Smolakovs did say that he would expect the test conducted in accordance with the Australian Standards to produce a different result from the result obtained by the method he used: p.79. His evidence was that in his opinion testing in the way he tested produces a more valid measure of the coefficient of friction because what is relevant in the circumstances is the actual coefficient of friction between the particular footwear in use with this plaintiff, and the floor: p.79. Mr. Smolakovs, in a supplementary report (Exhibit 23), was quite critical of the other test: he asserted that it was irrelevant to test anything other than the particular shoes used by the plaintiff because what mattered was the resistance to slip of those shoes on the relevant surface (and see p.79). Indeed, he expressed the view that the standard was inappropriate for use when specific incidents were being investigated.
- [16]The problem with his reasoning is that what I am concerned with is not determining why the plaintiff fell, but determining whether the defendant was negligent in having this floor in this state, that is, a wooden floor sanded smooth with a clear coating. That cannot be something assessed by reference to the coefficient of friction of the particular shoe worn by the plaintiff; it was not reasonably foreseeable that that particular plaintiff with that particular pair of shoes was going to come into these premises. What was reasonably foreseeable was that people would be coming regularly and routinely into these premises with a wide range of footwear, and it was necessary to determine whether that surface in that state was in those circumstances too slippery, that is, involved an unreasonable risk of injury to such people, so that it was reasonable to take some further precaution against slipping. That is something which can only be sensibly addressed by reference to some form of standard test for slipperiness. Obviously the standard test should be one which produces a meaningful result, that is, a floor which according to the standard test is not too slippery should in fact not be too slippery for most people actually using it, but that is essentially a matter of choosing the appropriate standard.
- [17]Because the coefficient of friction varies depending on the two particular surfaces which are in contact, a particular floor will produce a different coefficient of friction depending on the particular substance with which that is measured. If different floors are to be made comparable in some meaningful way, therefore, there has to be some standardised testing procedure which involves testing the various different floor surfaces against a standard testing medium. Plainly, the plaintiff’s shoes are unsuitable as a standard testing medium, and the Australian Standards specifies a standard testing medium, which was the medium used by Mr. O'Hare.
- [18]Exhibit 23 raises a number of issues about the particular medium or substance (described as a slider) used in the test conducted by Mr. O'Hare; essentially it asserts that the test had not been shown to have been conducted properly. I accept Mr. O'Hare’s evidence that he did conduct the test properly, and that appropriate steps were followed to ensure that the test was properly and reliably carried out: p.114. I accept that the figure of .55 was properly derived in accordance with the Australian Standard for the floor at the time it was tested by Mr. O'Hara.
- [19]The real difficulty here is that it is by no means clear that, if the floor had been tested according to the Australian Standard in April 1996, a figure of less than .4 (or indeed less than .55) would have been obtained. Mr. Smolakovs did not offer any opinion as to whether he would expect a worn floor to produce a higher, or indeed a lower, coefficient of friction. When the floor has this clear coat on it, what is really being measured is the coefficient of friction between the test slider (or the shoe) and the coating. Mr. Smolakovs did not say that when a surface such as this was freshly coated it was particularly slippery and therefore dangerous until the surface became worn. His position was really quite different, and much more sweeping.
- [20]He did not regard the plaintiff’s shoe as being one which would be particularly likely to slip; indeed, the thrust of his evidence was that such a shoe was relatively unlikely to slip (p.80), so that it was not that the plaintiff wearing this footwear was more likely to slip than a typical member of the community. Rather, the effect of his evidence was that this floor was too slippery for most common types of footwear, and indeed that any wooden floor was too slippery and unsafe unless it was specially treated with a non-skid surface: p.87, and see p.88 l.15. Indeed, he asserted that it was generally accepted that wooden floors were too slippery to be safe.
- [21]Wooden floors of this kind are very commonly met with, particularly in residential situations. Mr. Smolakovs said that they would be safe enough to walk on barefoot (p.87), but many people wear some form of footwear indoors, and these days, particularly in winter, it is not uncommon for people to get about indoors in socks. Wooden floors are certainly relatively slippery, by comparison particularly with carpet, but I think most people would be surprised by the suggestion that such a floor was unsafe to walk on in footwear. Of course, the standard of safety to be expected in a residence is not as high as that to be expected in commercial premises, but even so the proposition that wooden floors are unsafe in such a situation unless they are specially treated with a non-slip surface is one that certainly came as a surprise to me.
- [22]It also seems to be inconsistent with the implied assertion in the Australian Standard to which reference was made that a floor with a coefficient of friction measured in accordance with that standard of .4 or above is safe, in view of the circumstance that a reading of .55 was attained for this floor in January this year. According to that standard, the floor was then safe. Mr. Smolakovs however did not seek to meet this by any variation between the state of the floor when he tested it and the state of the floor when it was measured in January this year; his argument was rather that the standard was wrong.
- [23]There is another features of Mr. Smolakovs’ evidence which is unsatisfactory. His report, Exhibit 22, does not distinguish between static coefficient of friction and sliding or dynamic coefficient of friction[3]. The technique he used measured a dynamic coefficient of friction, as does the Australian Standard: p.99. But in Appendix 1 to Exhibit 22 he refers to three studies which identify a minimum coefficient of friction of .5; one is expressly identified as a static coefficient of friction, and the coefficient of friction in the others is not made clear. He acknowledged that a static coefficient of friction would be higher: p.99. The use of static rather than dynamic figures will produce a highest figure which will not be directly comparable with a figure measured on a test for dynamic coefficient of friction. It is not comparing like with like.
- [24]It is important to bear in mind that these coefficients really only have any meaning for the purposes of comparison when the material with which they are measured is taken into account. In my opinion it is unsatisfactory to accept, as Mr. Smolakovs does, (p.98) a figure of .4 as an acceptable coefficient of friction on the basis that this is the figure given in the Australian Standard, but then to say that the coefficient of friction should be measured in a different way.
- [25]Overall, I am not impressed with Mr. Smolakovs as a witness. I am not prepared to accept his assertion that a wooden floor of this kind is unsafe for people wearing footwear. That appears to me to be contrary to the circumstance that the floor, when tested recently this year, achieved a figure which was substantially above the limit set by the Australian Standard for a non-slip pedestrian surface. If his evidence was correct, it would follow that the floor was also unsafe for people wearing footwear this year. I also consider his comparison of coefficients of friction derived in different ways without regard to that circumstance, and indeed without much regard to whether they were static or dynamic coefficients, to be intellectually suspect. His approach was essentially the same as the approach of the plaintiff’s expert ergonomist, Dr. Adams, in Madaffari v. Rydges Hotel Ltd [1996] ACTSC91, which was described by Higgins J as “seriously misleading” (para. 31).
- [26]I also had the distinct impression that he was setting a very high standard for slip resistance for pedestrian areas. This may be a consequence of his background in industrial premises; the standard of care required of an employer for the safety of employees is notoriously very high, and in that context it is understandable that walkways, particularly walkways where there is a potential for contamination with oil or other slippery substances, would be expected to display a particularly high level of slip resistance. In my opinion, however, the same standards would not apply in ordinary commercial premises.
- [27]There is also the consideration that ordinarily when people fall on a flat surface it is because they have slipped on something, that is there is some contaminant on the surface, or they have tripped over something. Indeed, this is acknowledged by Mr. Smolakovs on p.4 of Exhibit 22. Because of this, in selection of a floor surface in premises of this nature (café and takeaway food shop) ease of cleaning would have to be an important consideration, and a consideration which would favour a relatively smooth floor over some other kinds. A surface which makes a spill relative easy to detect is also desirable. In my opinion, an occupier is also entitled to have some reasonable regard to aesthetic considerations.
Authorities on Duly of Occupier
- [28]The starting point for any consideration of the law in this area is the decision of the High Court in Australian Safeway Stores Pty Ltd v. Zaluzna (1987) 162 CLR 479, where the majority said at p.488 that the circumstances that the respondent was a lawful entry upon the land of the appellant established a relationship between them which of itself sufficed to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. It is therefore clear that in the present case there was a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. In that case the relevant premises were commercial premises, a supermarket, and the plaintiff respondent had slipped on the vinyl-tiled floor of the foyer area which had become wet or moist because it was a rainy day. The trial judge had dismissed the claim and the Full Court of Victoria ordered a new trial and that decision was not interfered with on appeal to the High Court, although both the Full Court and the High Court recognised that the result of a trial on the basis of the law which ought to have been applied might well not be any different from that in the first trial where the plaintiff failed.
- [29]It was foreseeable that a person might slip and fall in the premises: Phillis v. Daly (1988) 15 NSWLR 65 at 74. People can suffer serious injuries as a result of falling. and indeed if the person happened to be in the vicinity of the top of stairs, might as a result of the slip fall down the stairs. That follows inevitably from the circumstances that people do slip and fall from time to time, and that falls down stairs can cause injury, indeed serious injury. But it does not necessarily follow that an occupier is negligent for failing to have a particularly slip resistance surface on any flooring where people are likely to be walking. The question is, what would a reasonable man do in the circumstances by way of response to the foreseeable risk: Hackshaw v. Shaw (1984) 155 CLR 614 at 666 per Deane J, adopted by the majority in Zaluzna at p.488.
- [30]This raises the considerations referred to by Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47:
“The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience as 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 for the reasonable man placed in the defendant’s position.”
- [31]This sort of balance exercise was adopted by the Court of Appeal in Ibraham v. Myer Queensland Stores Ltd (Appeal 6505/96, 1.8.97, unreported) where the court upheld a trial judge’s finding that there was no negligence on the part of a shopping centre occupier in having a small step at the foot of a ramp on one side of a pedestrian crossing within the centre, when the plaintiff had tripped on the step and fallen, suffering injury. There was no dispute that there was a duty and a foreseeable risk of injury, but the court noted that the small step was readily visible, and accepted that the risk of injury from the step was extremely small. They were a common feature in the Brisbane area. Although the ramp could have been easily constructed without a step, and the step could be reduced or eliminated at a small cost, as was done after the accident, there were some disadvantages in this course, in the loss of a warning to blind persons and some impairment of efficiency in the storm water drain after heavy rain. There is also the consideration that the step was higher than the maximum height specified in the Australian Standard on access by the disabled. Nevertheless, the trial judge considered that in balancing the relevant factors it was not shown that the presence of the step amounted to negligence and that position was upheld on appeal. My impression overall from that judgment is that the low risk of injury and the obviousness of the condition were important considerations in leading to the conclusion that a reasonable man would not have done more to avoid the risk of injury; that is, would not have been concerned to make the ramp safer, although that could have been relatively easily done.
- [32]In Phillis v. Daly (1988) 15 NSWLR 65, the New South Wales Court of Appeal allowed an appeal from a judgment in favour of a plaintiff against the occupier of a hotel where the plaintiff had injured her ankle as a result of stepping on to a log in a car park in the course of walking towards the hotel. The hotel was in a rural area and the log had been there for a long time. It was clearly visible and the plaintiff knew it was there. The log was somewhat irregular and when the plaintiff stood on it her ankle twisted over and she fell and suffered injury. The court held that there was a duty owed to her, the issue was whether there had been a breach of such duty. Reference was made to Wyong v. Shirt. The difficulty caused by the irregularity of the log could have been overcome either by removing the irregularity or by removing the log. However, there was nothing hidden or unusual about the situation.
- [33]Mahoney JA said at p.74 that two relevant factors to take into account were that the risk was ordinary and that it was obvious. He also gave an example which illustrated the proposition that it was not negligent merely for there to be some risk of injury which could be but was not minimised or removed. Samuels JA at p.69 also referred to the circumstance that the probability of such an in jury was low and the magnitude of the risk slight and continued:
“The logs constitute a traditional, visually agreeable way of serving these functions [keeping motor vehicles away from the front of the motel] and I think that at the present time, where environmental considerations are rightly regarded as an importance, aesthetic factors have their place in the calculus of negligence in circumstances such as these”.
However, His Honour said that even disregarding that factor the chance of a visitor coming to grief in such circumstances was so slight as to require no precaution omitted by the occupier: p.69.
- [34]All of these decisions were referred to in the judgment of the Court of Appeal in Jaenke v. Hinton (1995) Aust.Tort Rep. 81-368. In that case the court held that there was no negligence in circumstances where the plaintiff had fallen as a result of stepping on a garden hose while walking (as a lawful entrant) across the front yard of the defendant’s house. Pincus JA, at p.62,808 noted that the test was not that of someone who was most unusually, or obsessively, apprehensive of harm to others. Although a garden hose could easily have been removed from the lawn, by being coiled up out of the way, and there was no good reason for leaving it lying on the lawn, the court concluded that, as Thomas J said at p.62,809:
“The presence of [a common garden hose] presented too small a risk to create a duty to remove it.”
Williams J at p.62,810 noted that such a hose is a common feature found in most suburban yards.
- [35]In the light of these authorities it is clear, in my opinion, that, in the area of occupiers liability at least, it is not enough to establish negligence merely to show that there is some foreseeable risk of injury and that there was some step available which would have been relatively easy and inexpensive which would have reduced that risk. As to the last of these points, there is the further difficulty in the present case that there is no evidence as to why the plaintiff came to fall, particularly if one rejects, as I do, the evidence of Mr. Smolakovs as to the floor being excessively slippery. There may easily have been something on the floor which made it more than usually slippery, or indeed there may have been something on the plaintiff’s shoe; she said she also had a slip as she was coming into the shop (p.10) and, that must raise that possibility.
- [36]Mr. O'Hara conducted a number of tests with his machine, in one of which, on a wooden step, he obtained a reading of only .13 before wiping loose particles from the surface of the step, after which he obtained readings of .50 and .54: Exhibit 30. This illustrates the obvious enough proposition that the presence of loose particles on such a surface would make it a lot more slippery. Hence Mr. Smolakovs’ proposition that falls on such surfaces are ordinarily the result of tripping or contamination. In these circumstances it is difficult to conclude the reason for the plaintiff’s slip was simply that the surface of the floor was too slippery for her to maintain traction. Evidence from Mr. Smith that he was not aware of other falls and people had not complained about the floor being slippery tell against the drawing of such an inference.
- [37]The solicitor for the defendant referred me to two unreported decisions from elsewhere in Australia where plaintiffs had claimed in respect of falls on floors. In Madaffari v. Rydges Hotel Ltd (1996) ACTSC 91, the plaintiff slipped and fell on a wooden dance floor while at a wedding reception, at a time when she was on the floor not to dance but in the course of leaving. There was evidence from four other witnesses that they had also slipped on that floor on that occasion, but later testing of the floor using the method prescribed in the Australia Standard produced a co-efficiency of friction at levels which were, according to the Standard, safe. Higgins J rejected the idea that the floor was necessarily unsafe, but found, as an inference from the number of falls on this occasion and certain other indications, that prior to this incident the floor must have been either cleaned in a way which left a residue of slippery detergent on the floor, or polished with a polish which made it unusually slippery, so that on this particular occasion the floor was unusually slippery, not because of its nature as a wooden floor, but because of some specific thing done to it which made it temporarily unusually slippery. On this basis the defendant was found to be negligent.
- [38]In Shephard v. Loxton Hotel-Motel Inc (1998) SADC 3826, a plaintiff fell and injured herself on a dance floor which she had been crossing to get from her table to a food servery counter; the floor was in a room which had been a function room but had subsequently been made the principal dining room. There was expert evidence of a comparison between the co-efficient of friction of that floor and the co-efficient of friction of the floors in a number of premises in a particular shopping centre which had been measured in the same way and were used to develop a set of background data against which to compare floors this indicated that this particular floor was much more slippery than others which had been tested in this way, and that it was a particularly slippery floor. On the basis of that evidence the defendant was found to be negligent. In infer that in context that was evidence that it was unusually slippery for a wooden floor, or perhaps for the sort of floors commonly found in commercial premises. There was no evidence to that effect before me.
- [39]I have also noted the decision in Harrison v. Joseph (Cairns Writ 179/85, Cooper J, 27.8.91, unreported) where a claim that a plaintiff had suffered injury as a result of falling while playing squash on a wooden floor failed. That floor had been sanded smooth and was coated with solpah oil, and it was found that it could become slippery with an accumulation of dust, or from sweat on the floor, but the defendant had what His Honour regarded as a reasonable cleaning system to deal with that. There had been complaints of the floor being slippery from time to time from various patrons, but on investigation that was found to be related to inappropriate footwear. There was no evidence of any particular contamination of the floor at the time of the fall, and His Honour rejected a claim in negligence based on the proposition that the floor was too slippery in its natural state.
Each of those cases, of course, was decided on particular evidence before the court, which was different from the evidence in the present case. The principal significance for present purposes lies in the fact that the plaintiffs who succeeded proved something more than the mere fact that there was in the commercial premises a wooden floor, while the plaintiff who did not prove more than that was unsuccessful. Most cases that I came across involving injuries alleged to have been caused by slipping and falling involved slips on stairs; these are numerous, and there may be particular considerations involving stairs which make it unhelpful to consider them in detail. Two other cases where there was a fall because of an alleged slip on a floor involved other floor surfaces: Hasell v. Whittred Bread Pty Ltd (Maryborough Writ 1/83, Connolly J, 4.8.87, unreported) where the floor was concrete and wet, and Power v. Jan (Cairns Writ 51/92, Williams J, 29.4.93, unreported) where the surface was dry terrazzo tiles on a veranda. In each case the allegations of negligence were not upheld, each judge noting an absence of other complaints about falls or slipperiness.
- [40]In the present case the floor was aesthetically pleasing, and was relatively easy to keep clean. It was not particularly slippery; it has not been shown that it did not at the relevant time comply with the Australian Standard for slip resistance for pedestrian surfaces. I consider that this is an issue in which the plaintiff carries the onus, and indeed the evidence of Mr. O'Hara provides some basis for a conclusion that it is more likely than not that at the relevant time the coefficient of friction of the floor was .4 or above when measured in the manner specified in the standard, and therefore consistent with the standard. Although compliance with the standard is not necessarily proof against negligence, it would be some evidence of absence of negligence[4], just as a failure to comply with the standard would be some evidence of negligence, although (as shown by Ibraham) not by any means conclusive. Courts always consider all the relevant circumstances, and recognise the possibility that the standard may be too lenient. It is important to bear in mind that the analysis has to be undertaken without the benefit of hindsight: Jones v. Bartlett [2000] 75 ALJR 1 at 31. .
- [41]Although injury from a fall is foreseeable, the defendant was in the circumstances, in my opinion, entitled to take the view that the risk of injury occurring, particularly serious injury, was very small. The type of floor used was common and conventional, and one that had the advantage of being easy to clean. The defendant was not aware of any problem with the floor being too slippery. In all the circumstances, I am not persuaded that a reasonable person, immediately prior to the time when the plaintiff fell, would have concluded that the floor in question was so slippery and therefore so dangerous that it was appropriate to take some further steps to reduce the risk of slipping by the application of some specific slip resistance coating[5]. It has also not been shown that a reasonable person in the position of the defendant would or should have been aware of the slip resistant treatment, or any need for it to be used[6]. Insofar as the plaintiff’s claim is based on the mere use as a flooring material in the premises of a “polished” wooden floor, in my opinion negligence has not been established.
- [42]It was also argued on behalf of the plaintiff that it was negligent to provide seating in this particular area, because of the proximity of the staircase. A person sitting at the table would be about 1 metre, or perhaps a bit less, away from the top of the stairs: Exhibit 22. The fact that the table is fixed to the wall, and that if a person were sitting too far away from it there would be a tendency to obstruct access for people to and from the basement area via the stairs, are factors which would encourage people using that area to sit away from rather than close to the top of the stairs. The stairs are readily visible, and to get into the position in which the plaintiff was sitting, it would be necessary for a person to move from the doorway towards the top of the stairs before turning to the right to sit down, and one would expect that in performing that exercise, the presence of the stairs would have been obvious, so that a person sitting at that table ought to be aware of the presence of the stairs.
- [43]Of course, the plaintiff did not fall because she stepped back on to the stairs; on her account she fell because she slipped at a point which would have been some distance from the stairs, and it was simply unfortunate that when she fell over backwards part of her body fell over the stairs so that she then slid down them. But the proposition that it was negligence to have seating at that point because of the risk of a person falling down the stairs as a result of slipping while getting up from seating at that point runs into the difficulty that not only is the risk of slipping[7], although foreseeable, relatively low, but if there is a fall it will not necessarily result in a fall down the stairs. There are plenty of ways in which a person could fall which would not result in a fall down the stairs. The risk of someone falling down the stairs as a result of sitting at a table in this position must therefore be very small.
- [44]Stairs are a common enough feature in commercial premises, and they are rarely arranged so that people who are not actually using the stairs would ordinarily not have occasion to come into such a position that, if they were to slip and fall, they could not fall down the stairs. The stools of this bench shown in the photograph in Exhibit 22 do not strike me as being particularly close to the top of the stairs, or so close as to involve some particular risk of falling without first slipping when sitting down or getting up from a seat at that bench. The defendant had a conflicting responsibility, namely the desire to make good commercial use of such space as was available to it in order to maximise the income from the business carried on in these premises, for which it was no doubt paying substantial rent. That is not an overriding consideration, but it is a relevant one when considering whether a reasonable person would have responded to this real but slight risk by avoiding encouraging people who did not have to go near the top of the stairs from being in that area. I do not consider that a reasonable person in the position of the defendant would have refrained from putting a fixed bench and stools in this area because of the real but slight risk that a person using them might in connection with such use slip and fall and as a result fall down the stairs and suffer injury. This is essentially a matter of impression, but my impression is that a reasonable person would not take such a precaution. I am not persuaded that the defendant was negligent in this way.
- [45]Although the plaintiff’s pleading is very broad, these were the only grounds of negligence in fact argued on behalf of the plaintiff. The plaintiff’s action therefore fails and is dismissed with costs. In case a different view on the question of liability may be taken elsewhere, however, I will assess damages.
- [46]
Quantum
- [47]The plaintiff has suffered terribly as a result of the fall in the defendant’s premises. Immediately after the fall she was in pain and unable to move, and was taken in an ambulance to the Royal Brisbane Hospital: p.15. She was found to have suffered some bruising and tenderness over the lower part of the lumbar spine with some limitation in straight leg raising, some bruising above the left knee and left ankle, an abrasion to the elbow: Exhibit 3. X-rays of the lumbar spine, pelvis, chest, left ankle and left knee were obtained and revealed no acute abnormality. There was no neurological deficit. She was discharged and advised to take pain killers for symptomatic relief.
- [48]She continued to be in a lot of pain (p.15) and on 19 April she consulted a general practitioner at the Royal Brisbane Place Medical Centre: Exhibit 2. At that stage she had bruising on the right scapula, both buttocks, and the left knee. There was a full range of movement of the left knee with some crepitus, and no abnormality found in the central nervous system. The pain did not subsidise, and she went back to the centre on 9 May complaining of pain in the neck and left arm and left knee; she was prescribed Brufen and referred to an orthopaedic surgeon. The general practitioner thought there was a probable aggravation of some pre-existing degenerative change in the left knee, with musculo-ligamentus injury and possible disc lesion in the cervical spine: Exhibit 2.
- [49]Dr. Nave was seen on 14 June 1996: Exhibit 17. At that stage she was complaining of pain on the left side of the neck and the left lower back, and in the left knee and discomfort in the left ankle; there had also been some swelling of the left hand, left knee and ankle and some burning feeling in the left shin, some soreness in the left wrist and thumb and tingling in some of the left fingers. On examination there was some tenderness in the neck but mobility was close to normal; the left shoulder had good movement without swelling but producing some pain, as did the left wrist. Dr. Nave saw the x-rays taken on 15 April and expressed the view that they were normal, apart from an apparent small avulsion fracture of the tip of the medial malleolus of the left ankle. Dr. Nave thought the plaintiff had suffered a number of muscular-ligamentous injuries. In July 1996 he thought the plaintiff’s condition was not stable, and he recommended physiotherapy.
- [50]The plaintiff began physiotherapy through the Royal Brisbane Hospital on 9 July 1996, at which time she was complaining of worsening lower back pain and left sided neck pain since the fall, aggravated by prolong standing, sitting and car travel and certain body positions: Exhibit 5. There was restricted flex movement in the lumbar spine and cervical spine, with tenderness marked at times over a number of parts. There was moderate swelling and some tenderness in the left wrist on 17 July; x-rays showed no fracture but a bone scan on 6 August indicated that there was some problem in the wrist. With treatment there was slow but steady improvement so that by 16 October there was a full range of cervical and lumbar spine motion, but some persisting tenderness. She was discharged on 31 October 1996 (the reference in Exhibit 5 to 1997 must be a mistake).
- [51]The plaintiff had also been seen during July, August and September 1996 by Dr. Day, an orthopaedic surgeon, who examined her for the purposes of a medical legal report on 29 October 1996: Exhibit 9. She complained at that stage of continuing neck pain which was made worse with any lifting or pegging of clothes, sometimes interfering with her sleep. Her lower back pain was made worse by prolonged walking, sitting, lying flat on her back and lifting any significant weight, with also occasional pain in the ankle although that had improved with recent physiotherapy. On examination movement of the cervical spine was significantly restricted, which seems inconsistent with the assessment performed by the Royal Brisbane Hospital physiotherapy department on 16 October: Exhibit 5. Dr. Day thought the plaintiff was suffering from a slight avulsion fracture of the left ankle, and aggravation of pre-existing (asymptomatic) degeneration in the cervical and lumbar spine, and the left thumb. He thought that the plaintiff had stabilised with what was expected to be intermittent pain, but the condition would be permanent. He thought she was capable of looking after her husband but would be unable to do any opal mining; her husband had prior to a diagnosis of leukemia been an opal miner at Lightning Ridge in New South Wales, and the plaintiff had assisted him in fairly vigorous manual work. Dr. Day did not think the plaintiff would require assistance in the home, but she might require future physiotherapy.
- [52]In early 1997 the plaintiff was seen by Dr. Murphy, a physician, on referral from a general practitioner: Exhibit 16. The complaints to Dr. Murphy included some lack of balance, headaches about twice a week, and a more persistent dull frontal headache, and some stiffness in the left shoulder. A CT scan of the brain revealed no abnormality. Dr. Murphy noted that the head injury suffered in the fall had apparently been sufficiently severe to produce a calcified sub-periostial haematoma near the mid line of the forehead, although this was unlikely to be producing significant symptoms, and had produced some post-traumatic headache, but there was no evidence of problems with her nervous system. The headaches were not very severe and were settling down.
- [53]On 25 March 1997, Dr. Tomlinson, a neurosurgeon, saw the plaintiff on referral from Dr. Murphy: Exhibit 19. Dr. Tomlinson did not think the plaintiff had suffered an organic brain injury.
- [54]The plaintiff was seen on 14 July 1997 by Helen Coles, an occupational therapist, for the purposes of a report: Exhibit 7. At that stage the plaintiff was complaining that any movement of the left arm or shoulder aggravated the constant pain in the left side of the neck, that driving a motor vehicle, even an automatic vehicle, was difficult because pain in the left arm and hand so that she avoided using her left hand wherever possible, pain in the left knee was aggravated by walking, as was pain in the left ankle, and pain in the lower back was aggravated by maintaining a position for any length of time. There were also headaches. Her overall pain had been constant since the accident and Ms. Coles thought that the plaintiff would have required some assistance in personal care for up to two hours per day, and had a continuing need for assistance of a minimum of six to eight hours per week. She thought that the plaintiff had been rendered commercially unemployable by the injuries.
- [55]The plaintiff was reviewed by Ms. Coles on 3 February 1999 but the position had not changed, except the amount of assistance required had been reduced to a minimum of four to six hours per week, since the plaintiff at that time was no longer caring for her husband: Exhibit 8.
- [56]The plaintiff was seen by Dr. Morris, an orthopaedic surgeon, for the purposes of a report to the defendant’s solicitors on 15 October 1997: Exhibit 32. The plaintiff was extremely limited on examination on active movement to the neck or lumbar spine, and in the left ankle, and walked with a pronounced limp. X-rays in October 1997 show various degenerative changes including quite marked degenerative changes in the C6-7 level. Dr. Morris thought the plaintiff was exaggerating her signs on examination, and thought her movements appeared to be freer when she was not being examined. He thought the effect of the fall was to bring forward the onset of degenerative changes, by one or two years.
- [57]Since the accident the plaintiff has attempted to work as an assistant in a food shop in Lightning Ridge (owned by a friend) but found that the work was too physically demanding and had to stop after one day: p.23-4.
- [58]The plaintiff had become very stressed and upset and depressed, because of the injuries she had suffered and their failure to resolve, and on 24 Navember 1997 presented to the Royal Brisbane Hospital Psychiatric Department, being subsequently followed up as an outpatient: Exhibit 6. She took some medication at that time, and made up her mind that she had to get better, and her mental state has improved subsequently: p.21.
- [59]On 29 December 1997, she attended the Royal Brisbane Hospital after a fall as a result of which she fractured the radial head in her right elbow: Exhibit 6. This was successfully treated with a sling, and she was subsequently mobilised. She was expected to have suffered severe pain for about three weeks after the injury during which time she would not have been able to use her right arm, followed by moderate pain for three weeks while she was mobilising: Exhibit 10. However, the plaintiff did not have the physiotherapy recommended and when seen by Dr. Day on 13 February 1998, had a fairly still elbow which he still thought could be mobilised with physiotherapy: Exhibit 11. He noted that at that stage the left knee had a full range of movement.
- [60]The plaintiff fell again in 1999 and twisted her left ankle. She initially saw the Chermside Medical Centre at which stage there was moderate ankle swelling and she was referred to the Royal Brisbane Hospital: Exhibit 15. She subsequently attended the Royal Brisbane Hospital on 4 June 1999, where the ankle was x-rayed and the small avulsion fracture of the lateral malleolus was again noted, the ankle being reversed strapped, presumably on the assumption that that was recent: Exhibit 26.
- [61]The plaintiff saw Dr. Mulholland, psychiatrist, for the purposes of a report on 28 June 1999. At this stage she was still recovering from the recent fall, and was apparently using crutches with a short leg plaster cast, although that does not appear to be consistent with Exhibit 26. Dr. Mulholland thought that at the time when he saw the plaintiff she was suffering a major depressive disorder and was suicidal; indeed, he referred her to the Royal Brisbane Hospital Psychiatry Department for in-patient or intensive out-patient treatment, although she did not attend there until late in the year. He thought her psychological functioning was seriously impaired, and she had suffered a significant degree of emotional pain as a consequence of her injury, and the psychiatrist problems she had developed. It was not possible to give a realistic prognosis. At the interview she was quite emotional and histrionic, overreactive and over-responsive, and at times displaying strong attributional entitlement. Dr. Mulholland thought that this might be related to the continuing litigation.
- [62]The plaintiff at that stage had started to complain of continuing headaches in the neck and left shoulder and lower back pain, discomfort in the left ankle aggravated by walking on an even ground or up stairs. On examination there was mild restriction of motion in the cervical spine and the lumbar spine, with normal motion in the thoracic spine. There was some loss of movement in the left shoulder and some mild restriction in the left ankle, the left elbow, and the left thumb had movement within normal limits. Dr. Tomlinson regarded her injuries suffered in the fall as minor. He thought that she had suffered a whiplash type injury in the cervical spine which was producing continuing disabling symptoms, with the problems in the left shoulder, left elbow, left thumb, left ankle and lumbar spine also being characteristically apparently chronic symptoms of soft tissue injury.
- [63]The plaintiff was seen for an updated report by Dr. Morris on 9 January 2001: Exhibit 34. Dr. Morris noted that there was a marked limp which was not seen when she was observed walking outside later. Dr. Morris said x-rays taken in October 2000 showed degenerative changes in the left wrist and left shoulder, lumbar and cervical spine. Dr. Morris thought that the plaintiff was exaggerating her signs and symptoms quite markedly and that such symptoms as she had related to the degeneration rather than the fall in 1996.
- [64]The plaintiff was seen again by Dr. Mulholland on 14 March 2001: Exhibit 21. Dr. Mulholland reported that current medication, Brufen of four to eight tables a day and two to eight Panadeine Forte tablets a day, which he regarded as excessive. He thought the plaintiff might benefit from attending a pain management clinic. He noted that the plaintiff had not attended the Mental Health Centre at the Royal Brisbane Hospital until some months after she had seen him in June 1999, but eventually she was admitted for two weeks, and it appeared that she made a great improvement following treatment with anti-depressant medication and counselling. She continued to take anti-depressants until about August 2000 when she was eased off them because they made her too sleepy. He thought that she had a major depressive disorder which was in partial remission. Dr. Mulholland thought that the plaintiff’s ability to work had been lost in 1999 for several months due to psychiatric factors alone, but that by March 2001 they were causing only mild interference in any ability to work. Dr. Mulholland thought she should be still taking a low dose of anti-depressant medication.
- [65]The plaintiff also suffered some dental problems as a result of the fall: p.27 She had a number of crowns in her teeth at that time, and as a result of the fall a number of these were loosened and came out. In June 1996, she had some dental work undertaken in Brisbane (Exhibit 18) and there was apparently some other dental work done in Brisbane, but the plaintiff did not find that satisfactory and in April 1997 travelled to a dentist she had previously attended in Canberra who noted that a number of teeth needed work; one crown had come off again and was handed to him loose: Exhibit 13. Subsequently in 1997 he did extensive work on four of her teeth, and also warned of the possibility that there were smaller fractures in other teeth that had not yet come to light: Exhibit 1. Overall, it appears the plaintiff suffered extensive dental problems as a result of this injury, principally in the form of failure of earlier dental restoration work, and this has ultimately been satisfactorily repaired.
- [66]Overall my conclusion is that the plaintiff is someone who has coped very badly with the injuries she suffered and their consequences. The fall produced a range of injuries in various parts of the body which were relatively minor, but which stirred up previously asymptomatic degeneration, and that has subsequently continued to be painful. The plaintiff has coped badly with this pain; she does not seem to have got past the “stop ift it hurts” method of pain management. This, I think, is a consequence of her personality, and the various other difficulties in her life. At the time of the injury she was caring for her husband who had come to Brisbane to receive treatment for leukemia: p.18. Prior to this being diagnosed, the two of them were living in Lightning Ridge where he was working as an opal miner, and she gave him a good deal of assistance, including physical assistance in this work: p.21. Her husband however had become quite ill and moved to Brisbane where he received treatment, including a bone marrow transplant: (p.22), and ultimately the treatment was largely successful so far as the leukemia was concerned: (p.17), although it has left him with various medical problems including diabetes: p.51. Although he has returned from time to time to Lightening Ridge, he has found that he is not able to continue to do the physical work required of an opal miner and since the accident neither has the plaintiff. They went back in 1998 for a trial, and found that they just could not cope: p.21-2. The plaintiff evidently enjoyed that lifestyle, and so did her husband, and understandably they were both distressed by the loss of this activity.
- [67]A combination of this and their reaction to their respective complaints led to a breakdown in their relationship (p.26) and there have been periods of separation, although they are currently reconciled: p.66. It seems to follow from Dr. Mulholland’s reports particularly, that the plaintiff coped much worse during the periods of separation, and indeed her husband used to come and visit her from time to time even when they were separated in order to provide her with some continuing assistance, which he recognised that she needed: p.68. The plaintiff and her husband now are living in a converted bus on a property owned by his parents near Brisbane (p.29), and it appears they do very little there: p.68. She has been encouraged by walk by way of exercise, and she does this when she can, although it has produced a number of falls: p.19. She does little by way of housekeeping, and in these circumstances she has little to distract from her ailments. She reports a long standing fear of doctors and hospitals, and this has led her to avoid appropriate treatment at times, and perhaps also led her into inappropriate and exaggerated responses when being seen by doctors.
- [68]I do not accept that her presenting symptoms accurately reflect her underlying orthopaedic difficulties, and in any case it is clear that her continuing physical problems have much to do with degenerative conditions which preceded the fall, but which were stirred up and made symptomatic by it. It is therefore appropriate that she be compensated on the extent to which her condition has been made worse as a result of the fall, which depends on the likely progress of the degenerative condition had the fall not occurred. The only doctor who addresses this is Dr. Morris; because of the way in which the case was run none of the doctors gave oral evidence, so it was not possible to raise these issues with any of the other doctors who had seen her from time to time. Indeed, some of the doctors, such as Dr. Tomlinson do not even mention the pre-existing degenerative problems, which makes it very difficult to assess to what extent her condition has really been made worse as a result of this.
- [69]In view of the extensive degeneration which was present at the time of the accident, and the extent to which her problems in some areas in particular seem to have become worse since the fall, I think it quite likely that she would at least by now have had some significant problems from this degeneration anyway, even if she had not had this fall, so there ought to be significant discount for the possibility that she would have had problems anyway. The probability of this occurring is one which increased with the passage of time, being very low in the period immediately after the accident. I think that it is quite likely that by now she would have had at least some problems anyway, although they may well not have been as severe or as widespread. They may have been of slow onset or they may have been the response to some other trauma, possibly a relatively mild trauma.
- [70]My impression overall of the plaintiff is that whenever they came on they would be likely to have caused psychiatric problems for her anyway, particularly bearing in mind that the other stressors would still have been present, but if they were not as severe then the psychiatric problems might not have been as severe. A particular difficulty was the timing of her incapacity after the fall, which coincided with a period when her husband was still needing a good deal of care from her. My impression is that the extent of her overall level of disability is significantly affected by psychiatric considerations.
- [71]The plaintiff was born on 3 December 1947, and is now 53 years of age: p.10. She has been married twice, and has four children, although three were adults living separately prior to the time of the fall. The youngest child, a son, was still living at home and provided some assistance after the fall; he was then 15: p.30. She complains now of continuing lower back pain, neck pain and ankle pain, pain in the left wrist and with the left thumb: p.20. The plaintiff needs some assistance with getting dressed, and cannot do heavy cleaning, vacuuming or peg out washing, or cook a large meal: p.17, p.25. She has difficulty in travelling any distance in a car, or for that matter any other form of transport. She cannot play with her grandchildren, and indeed it seems that she does very little except when she can go for walks, which she does with the assistance of her husband.
- [72]In all the circumstances I assess damages for pain, suffering and loss of amenity in the sum of $35,000, which I apportion $25,000 to the past. That will bear interest at 2% per annum for five years. There were various special damages, most of them medical expenses, set out in a schedule, Exhibit 27, and I will allow that amount. Interest was not specifically claimed on the special damages and it is not clear to what extent the plaintiff was actually out of pocket in respect of them.
- [73]There was a claim for past and future economic loss, but it is difficult to see how these injuries have been productive of any such loss. At the time the plaintiff was not working, but was caring for her husband and her evidence was that had she not experienced this fall when she and her husband returned to Lightning Ridge she would have continued to work as an opal miner with the assistance of her son, even if her husband had been too ill to be much help to them: p.27, p.33. There was no suggestion that an inability to work as an opal miner was productive of any economic loss to the plaintiff, and no basis upon which I could make an award of damages for economic loss based on her inability to do that work.
- [74]The plaintiff’s argument really came down to the proposition that had the plaintiff not been injured she would have had some capacity to do other work anyway and there was some possibility that she might have turned to some form of paid employment if her husband proved to be unable to continue to work as an opal miner and other circumstances arose which made it inappropriate for her and her son to continue. They would have to be circumstances other than the development of problems with her degenerative conditions, since if she had developed pain in the neck and back or left hand as a result of some other event making the degenerative condition symptomatic, that would probably also have significantly impaired her ability to do any other work.
- [75]The plaintiff’s evidence at p.27 about what would have happened is, strictly speaking, opinion evidence as to hypothetical facts and may be wrong; there is a possibility that something different would have happened at least, and I think that this argument is, strictly speaking, correct and some allowance should be made for this possibility, although in all the circumstances the allowance should definitely be a moderate one. Bearing in mind my assessment of the probability of the plaintiff having difficulties anyway by now because of her arthritis, I think that little allowance should be made for future loss even on this basis, but I will allow the sum of $10,000 for past economic loss and the sum of $2,500 for future economic loss. Past loss will carry interest at 4% per annum for 3 years (the plaintiff would not, in any event, have been working at the time when her husband was particularly in need of care) and I will allow an additional 6% for loss of superannuation contributions on the total award of economic loss.
- [76]There was also a claim for gratuitous care, and I accept from the period immediately after the fall the plaintiff was in need of quite a deal of care, but I think that the actual need for care did taper off to some extent over the years: p.19. The plaintiff claimed that her husband was still caring for her to the extent of about 3 hours per day (p.24), and her husband’s evidence was to a similar effect, However, these figures are unrealistic: at one stage she suggested that he provided care for half an hour in assisting her to dress: p.54. . She may well take half an hour to dress in the morning, he may well provide care from time to time during that process, but that does not mean that as a result of her injury the plaintiff needs half an hour’s assistance in order to get dressed. Even allowing for her husband taking over all the heavier housework, and any of the more substantial cooking, a much more realistic figure is that given by Ms. Coles in Exhibit 7 of six to eight hours per week.
- [77]The rate for domestic care was agreed at $10 per hour. There were times when the care was provided by the plaintiff’s son rather than the husband (p.25), and in addition there were times when the care was really not being provided during the period of separation, or at least substantially not being provided. Bearing in mind all of these factors, I think a realistic allowance for past care is $16,000, which should be then discounted for the possibility that some of that care would have been needed anyway because of the plaintiff’s degenerative condition had become symptomatic anyway. In all the circumstances I will allow $12,000 for past care, upon which I will allow interest at 4% per annum for 5 years, and $5,000 for future care.
- [78]There was a claim for future medication. The position here is complicated by the fact that to some extent the plaintiff’s current medication level is excessive, and by the fact that the plaintiff would probably have been taking some medication anyway if her degenerative condition was playing up anyway. Particularly in the light of that factor I think an appropriate allowance for future medication is $2,500.
Summary
- [79]I therefore assess damages as follows:
A: Pain, suffering and loss of amenities $35,000
B: Interest on $25,000 at 2% per annum for 5 years $2,500
C: Past economic loss $10,000
D: Interest at 4% per annum for 3 years $1,200
E: Future economic loss $2,500
F: Loss of superannuation (6% of economic loss) $750
G: Past gratuitous care $12,000
H: Interest at 4% per annum for 5 years $2,400
I: Future gratuitous care $5,000
J: Special damages (Exhibit 27) $10,484
L: Future medication $2,500
Total: $84,334
For reasons given earlier however, the plaintiff’s claim fails and there will therefore be judgment for the defendant with costs.
Footnotes
[1] She thought that it was her right foot but she could not be certain about that: p. 13, 41..
[2] The standard specifies that a floor with a coefficient of friction of .4 or greater, measured as specified in that standard, is slip resistant: Exhibit 35. Mr. Smolakovs said that a coefficient of friction of less than .4 indicated that the floor was unsafe, and that a coefficient of .5 or more indicated that the floor was safe: p.80, Exhibit 22. The effect of a reading between these figures was left unclear.
[3] Discussed in McAllister v. Proprietors Strata Plan 8092 [1998] NSWSC 452
[4] McAllister v. Proprietors of Strata Plan 8092 [1998] NSWSC 4521
[5] McAllister v. Proprietors of Strata Plan 8092 [1998] NSWSC 452
[6] Crosthwaite v. Pietila [1999] VSCA 110; and see Jones v. Bartlett (2000) 75 ALJR 1 at 31.
[7] Here the relevant risk is not slipping on the surface of the floor, but slipping on anything, or even tripping, so as to cause a fall.