Kent v The Body Corporate For ‘Christine Close’ Community Titles Scheme 8291
[2002] QDC 344
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- Kent v The Body Corporate For ‘Christine Close’ Community Titles Scheme 8291[2002] QDC 344
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Kent v The Body Corporate For ‘Christine Close’ Community Titles Scheme 8291[2002] QDC 344
Kent v The Body Corporate For ‘Christine Close’ Community Titles Scheme 8291[2002] QDC 344
DISTRICT COURT OF QUEENSLAND |
|
CITATION: Kent v Body Corporate Christine Close [2002] QDC 344
PARTIES:
ALEXANDRA KENT | Plaintiff |
and
THE BODY CORPORATE FOR ‘CHRISTINE CLOSE’ COMMUNITY TITLES SCHEME 8291 | Defendant |
FILE NO/S: D675/1998
DIVISION: District Court of Queensland
PROCEEDING: Claim
ORIGINATING COURT: District Court, Southport
DELIVERED ON: 18 December 2002
DELIVERED AT: Southport
HEARING DATE: 7 & 8 October 2002
JUDGE: Alan Wilson SC DCJ
ORDER: Judgment for the plaintiff
CATCHWORDS:
TORTS – NEGLIGENCE – PARTICULAR CASES – DUTY OF OCCUPIER – whether plaintiff suffered wrist fracture after fall upon paved driveway in defendant's premises – whether the defendant had breached its duty of care
Cases considered:
Australian Capital Territory v Badcock (2000) 169 ALR 585
Bartlett v Robinson (1981) 27 SASR 342
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Gondoline v Hansard (2002) WASCA 214
Jaenke v Hinton (1995) QCA, 3 November 1995, 37/95
Miners v Town Inns (Pennant Hills) Pty Ltd (NSWSC) per Findlay J, 17 December 1985
New South Wales v Broune (2000) NSWCA 3
Puflett v Proprietors of Strata Plan No. 121 (1987) 17 NSWLR 372
COUNSEL: | Mr A Collins for the plaintiff Mr A S Kitchin for the defendant |
SOLICITORS: | Gall Standfield Smith for the plaintiff Carter Newell for the defendant |
- [1]The plaintiff Alexandra Kent, born 1 September 1946 and aged 56 at the date of trial, claims damages for injuries allegedly suffered when she fell over in the driveway of the defendant's premises at 44 Harley Street, Labrador on the night of 3 August 1997. The defendant not only denies that event occurred, it positively asserts the plaintiff in fact fell at her own home, in some entanglement with her dog[1]. The defendant also argued that, even if it failed to prove that proposition, the evidence it adduced in support of it damaged the plaintiff's credit to such a degree that she must fail in the action. In the further alternative, it denied negligence.
- [2]The defendant's premises at Labrador were comprised of two units owned by a Mr and Mrs Booth who were, at all material times, the only members of the body corporate. One of the units was rented by the plaintiff's friend, Alice Boyle. The plaintiff's case, largely corroborated by Ms Boyle, is that on the night of 3 August 1997 the plaintiff went to visit Ms Boyle and say goodbye to her, because she was moving to Sydney on the following day. The plaintiff parked her car in the street outside the premises, and walked up the driveway and went through a gate to Ms Boyle's unit. After some coffee and conversation the plaintiff left but, while walking down the driveway, she fell in a depression in its paved surface, in darkness, and injured her right wrist. She then returned to Ms Boyle's unit, and the latter telephoned another friend, Jenny, who then came and collected the plaintiff and took her to her own home. The following morning the plaintiff telephoned Ms Boyle and asked that she take her for medical treatment, which she did, spending some hours that day visiting doctors and, ultimately, the Gold Coast Hospital. The plaintiff also asserts, of course, that the existence of the irregularity in the paved surface, in combination with the fact the driveway was unlit, gave rise to a readily foreseeable risk of injury, and the defendants are, therefore, liable to her for damages.
- [3]Against that, the defendant called evidence from a general practitioner, an orthopaedic surgeon, and a hospital nurse, all of whom said that on the day immediately following the night of this alleged incident the plaintiff gave them a version of the circumstances of her fall which was quite different and involved, variously, falling up or down stairs, or tripping, at her home and, in some instances, that the trip or fall involved a dog. In addition, there is a note in the Gold Coast Hospital records made by a doctor (who was not called), to the effect the plaintiff was injured when she tripped over a dog.
Issues
- [4]It is not in issue that, if the plaintiff was injured on the defendant's premises, she was there as a lawful entrant. Nor, that the defendant was the lawful occupier of, and in control of the premises, and owed her the usual duties which flow from an occupier to a lawful entrant. Neither was it in dispute that, when the plaintiff sought medical treatment on the following day, she presented with a fractured right wrist. Rather, as the vividly conflicting scenarios already mentioned show, the first issue concerned questions of credit - where, when and how the fracture occurred - and the truthfulness, or otherwise, of the plaintiff and Ms Boyle. Second, the defendant contended that even if the plaintiff's version was accepted, she had failed to prove where, in the driveway, she had fallen. Third, the defendant argued, even if it was proven she had fallen at a place where the pavers on the driveway surface were irregular, that irregularity did not warrant a finding of negligence, in the circumstances, against the defendant. Fourth and lastly, the parties were also in dispute about the proper measure of the damages.
The Conflict in the Evidence, and Questions of Credit
- [5]On the morning of 4 August 1997 the plaintiff consulted a GP, Dr Pixley. He made a note that her accident occurred the previous night when she fall down steps, onto her wrist. He referred her to an orthopaedic specialist, Dr David Stabler and wrote a short letter to the specialist while, he said, the plaintiff was in his surgery. The letter said the plaintiff “...Fall downstairs over a dog last night”. The plaintiff denied she told Dr Pixley these things. A conflict also arose as to whether or not Dr Pixley arranged, or saw, an X-ray of the plaintiff's wrist. The plaintiff said Dr Pixley had no X-ray machine and promptly sent her off to Dr Stabler. Initially, Dr Pixley said an X-ray service was available on 4 August 1997 but, in cross-examination, conceded his notes, which mention an X-ray, may have been incorrect and it was possible he told the plaintiff to obtain an X-ray and then consult Dr Stabler. That concession was consistent with, and confirmed, the impression I formed during Dr Pixley's evidence that he was a careful, and generally methodical practitioner, and a truthful witness. Of course, more than five years have elapsed between the date of the consultation and his evidence at trial and, not surprisingly, he had no independent recollection, beyond his notes, of the plaintiff's consultation with him[2]. In particular, he had no recollection whether or not the plaintiff was in a distressed state, while conceding she may have been[3]. Obviously the lapse of time placed some limits on the certainty of his recollection, but I was satisfied Dr Pixley's note, and his letter to Dr Stabler, were made contemporaneously with his consultation with the plaintiff, and reflected some words apparently spoken to him by the her; and, I reject her denial that she said anything to that effect.
- [6]The plaintiff says she was then taken, by Ms Boyle, to Dr Stabler's rooms where they waited together for about an hour before Dr Stabler saw the plaintiff (unaccompanied - there was some uncertainty, in the evidence, about this matter but I am satisfied from Dr Stabler's evidence, and Ms Boyle's uncertainty about whether or not she had gone into his room with the plaintiff, that she did not do so). Dr Stabler read the letter from Dr Pixley and, he says, then made his own note (Exhibit 14) that the plaintiff “Fell upstairs when dog stood on shoes last night”. He also dictated a letter back to Dr Pixley (Exhibit 13) which said:
I note that this lady fell up the stairs at home last night when she had some flip-flop shoes on and her dog stood on her shoes as she was walking up the stairs.
- [7]Dr Stabler said, and I accept, that he recalled the plaintiff because the mechanism of injury was unusual, and the history he took differed from that provided by Dr Pixley. In any event, because she had no private health insurance, he referred her to the Gold Coast Hospital. Interestingly, he said the plaintiff had not had an X-ray performed when he saw her[4].
- [8]Dr Stabler could not recall whether or not the plaintiff was crying, or distressed, but conceded that a lot of his patients are, indeed, “extremely distressed”[5]. Save for understandable failures of recollection about matters like that, Dr Stabler otherwise presented as a careful note-taker and witness and - subject again, of course, to the vagaries of memory which must arise when, as here, the witness was giving evidence concerning a patient he had seen, once only, more than five years earlier - I was satisfied his notes and letter recorded some words spoken to him by the plaintiff; and I prefer his evidence in this respect to that of the plaintiff, who denied she told him what he had recorded.
- [9]Ms Boyle then took the plaintiff to the Gold Coast Hospital where, as she said and I accept, they waited some five hours before the plaintiff was treated. Ms Francis Dickins, a registered nurse working in triage at the hospital emergency department that day, made a note in hospital records (Exhibit 22) that the plaintiff told her she “...tripped at home”. She had no specific recollection of the plaintiff and, in particular, no recollection whether or not she was distressed. Again, the plaintiff denied she had spoken to a nurse at the hospital, or anyone else, and told them she had fallen at home. Ms Dickins could not recall whether it was the plaintiff, or some other person who provided her with the information in the note. Ms Boyle said that she approached a person at the desk at the hospital and, while having no precise recollection of the conversation, believed she said to that person that the plaintiff “had a fall”. It is impossible, on Ms Dickins evidence, to determine the source of the version she recorded - but again, the defendant says, it is likely to have been the plaintiff, and that adds to the doubts which beset her case.
- [10]Another note appears in the hospital records, dated 4 August 1997 and written, the defendant asserts, by a Dr Gould who recorded that the plaintiff had “Tripped over dog”. The doctor could not be located, and was not called. The defendant denied she had told that doctor, or anyone else at the hospital, that she was injured when she tripped over a dog. Dr Stabler's letter to the hospital authorities, which is in the hospital records (Exhibit 22) does not record any version of the incident which caused the injury. Ms Boyle did not give evidence at any time that she had been told by the plaintiff the incident involved a dog. Again, the defendant submits - not unreasonably - the plaintiff is the likely source of the information in the note.
- [11]The uncertainty engendered by these references to a dog was compounded by letters written by the plaintiff's solicitors to the defendant's solicitors on 30 August, and 27 September 2001 (Exhibits 9, and 10) both of which contained a denial that the plaintiff actually owned a dog at 3 August 1997. In fact, she did own one then, although that was no longer true when the letters were written last year. Shortly prior to trial her solicitors wrote addressing what were said to be the errors in their previous correspondence (Exhibit 21). Their letter contained a statement to the effect that the solicitor had “...misconstrued instructions from the client in respect of whether or not she had a dog at the time of the accident”. As the letter goes on to note, her ownership of a dog had, at an earlier time, been mentioned in her Statement of Loss and Damage. It is, nevertheless, unsurprising that these letters further excited the defendant's concerns and suspicions.
- [12]Those suspicions were also exacerbated by the plaintiff's diary note concerning the night in question (albeit one made some months later, after she consulted her solicitor), which records her visit to Ms Boyle's home but then says (Exhibit 11):
Left there 10 p.m. Walked down the driveway. Tripped on the uneven paving. Lighting very poor. No lights on as Alice had gone to bed. I have only been over there usually during a day. Thought I had only sprained my wrist. Went home took two Panadol. Wrapped the wrist for comfort and support - went to bed. My wrist gave me hell.
The next part of the post-dated diary, an entry for 4 August 1997 (Exhibit 15) records that she phoned Ms Boyle the next morning and asked if she could drive her to the doctor's. The defendant thought it significant that the note does not mention any return, after the fall, to Ms Doyle's flat.
- [13]But for her wrongful denials about the versions she gave to these witnesses, I would have had no difficulty accepting the plaintiff as a witness whose testimony was truthful. She presented as a quiet, undemonstrative and, generally, non-loquacious person who answered questions in a way which, in terms of her demeanour, suggested both care and candour. She appeared to be a person of, at least, moderate intelligence who must have realised the importance of identifying, with precision, where she fell but, (as discussed later) she was obviously unprepared to say more than her own lights would permit - that is to say, she stopped short of saying more than, it appeared, she could comfortably and truthfully venture. Nor did she, in my view, attempt to overplay or exaggerate either her injuries or their effects. Her demeanour, and these aspects of her evidence contradicted the notion that she was a dishonest witness and suggested there might be some other explanation for what she told the defendant's witnesses.
- [10]It was submitted, on her behalf, that an explanation might have its genesis in a combination of the serious pain she suffered that night and throughout the following day; and, her grave concern that her injury was serious enough to put her off work, and she would be in financial jeopardy; and, embarrassment, as a senior registered nurse, at having fallen over and then being forced to consult medical practitioners; and, growing upset and distress in the course of the following day, rising to something like hysteria, as she sought medical treatment from a variety of sources, each of whom referred her on - combined, of course, with the very long delays she faced, as the day progressed, in circumstances where each of those practitioners denied her pain killers.
- [15]She said, and I accept, that she had very little sleep the previous night because of pain, and worry about her work[6]. She did not receive satisfaction at Dr Pixley's surgery - a situation exacerbated, to her recollection, by her inability to obtain an X-ray there[7]. By that time, she was in a lot of pain[8]. The pain was no better when she waited, for quite a long time, at Dr Stabler's surgery[9]. She was embarrassed, and that embarrassment was compounded by having to see a number of medical practitioners:
What is it you are embarrassed about? - Because I am a registered nurse it's very hard to - what's the word - and I deal with doctors all the time, so I just - I just feel embarrassed about having an accident like that, it's sort of-[10]
These impressions were corroborated by her diary note for 4 August (Exhibit 15) in which she said:
By this time the pain was dreadful. I was on the verge of tears. I was becoming very depressed about the overall problems associated with the disability, work, the house, the dog, being alone; did not know how I was going to cope. So embarrassed. I have never had an accident or a fracture in my life. Didn't know how to handle what had happened. So upset. Feeling devastated. So confused. Couldn't come to terms with what had happened.
- [16]The propositions advanced in argument for the plaintiff are that this combination of physical and mental distress either allowed some erroneous version of the incident to be generated from a misunderstanding on Dr Pixley's part which was then uncorrected, and indeed compounded as she passed from him, through Dr Stabler's hands and to the hospital; or, that her poor condition led to her giving a wrong version of the incident, for illogical reasons.
- [17]Common experience suggests both that the capacity for misunderstanding in human communications is significant and common, and that medical practitioners, being often more concerned with the plaintiff's treatment than the cause of injury or harm sometimes inadvertently record erroneous information about the latter. I am satisfied, however, that this did not occur in the present case. Both Dr Pixley and Dr Stabler impressed, as I found earlier, as careful historians and note-takers and the latter, in particular, expressed a particular interest because the version the plaintiff gave him was rather different from that passed to him by Dr Pixley and, itself, unusual. The logical conclusion is, then, that the plaintiff herself was the source of these versions. That conclusion does leave the plaintiff's credit under a cloud; but it also has the same effect on Ms Boyle's evidence, because she corroborates the plaintiff's version about the sequence of events on the previous night in important respects, and a determination of the question whether she was telling the truth must assist in resolving the concerns raised by the evidence of the defendant's witnesses.
- [18]I found Ms Boyle to be a witness of credit in all respects. She presented as very direct, thoughtful, and careful. She was frank about what she could not remember, and convincing about what she said she could. It was submitted, for the defendant, that her evidence should be treated with a considerable degree of suspicion because she was a good friend of the plaintiff's and, it was asserted, had discussed the case with her, and because she was circumspect, and vague, about the attendances upon the doctors. In fact, she denied any suggestion of collusion, or the possibility of some benefit to her if the plaintiff succeeded, and her evidence in that respect was not challenged[11]. Indeed, the proposition that she was fabricating her evidence was never put to her and it was only suggested that she was “mistaken” which she categorically denied[12]. I thought her lack of precision, in some respects, about precisely what happened at the surgeries of the two doctors, and the hospital was plausible in light of the period of time which had elapsed since those events. In important respects her evidence was, however, precise for reasons which were easily understood: as she said, she remembered the plaintiff coming back into her premises that evening because “if somebody falls over, I mean, it's a little bit of an event, and you do remember it”[13]. Similarly, the interruption of her plans to pack and move to Sydney constituted a feet which made her general recollection of events on the following day unsurprising.
- [19]Importantly, she describes the plaintiff as crying, and quite hysterical when they first arrived at Dr Pixley's surgery[14]. The plaintiff was “concerned about the pain and also that maybe she wouldn't be able to work”[15]. The plaintiff “... lived on her own, she had a mortgage to pay, being out of work would have, you know ... wouldn't have been good”[16]. At Dr Stabler's the plaintiff was in a “state“[17], and was denied pain killers both there, and at the Gold Coast Hospital. At the hospital the plaintiff was “very hysterical“[18]. She was, it is possible, in error when she said that she went into Dr Stabler's surgery with the plaintiff and they spent, in total, only about two minutes there but in light of the length of the wait at that surgery and, later, at the hospital, and the lapse of time and her need to care for a friend who was in pain, and distressed, and hysterical some failure of recollection is to be excused.
- [20]It was suggested, in the defendant's submissions, that Ms Boyle's demeanour was “far from being open”; and, that she was defensive both in examination-in-chief and cross-examination and “decidedly uncomfortable both in body language and her oral evidence”. My observation was in all respects to exactly the opposite effect. I am satisfied she was a witness whose evidence should be accepted, and believe her when she says that the plaintiff did return to her premises that night, very shortly after departing, with apparent signs of an injury; and was, throughout the following day, very upset and distressed. That finding means the version recorded by the doctors must be wrong, and I am satisfied the plaintiff did not fall at her own home.
- [21]Moreover, the weight which I have found should be afforded to Ms Boyle's evidence, combined with the impression I otherwise formed of the plaintiff, gives support to the proposition that there is a simple and acceptable, and logical and compelling, explanation for the plaintiff's conduct in giving incorrect versions of the incident to the defendant's witnesses - that her physical and mental distress, and embarrassment, had the consequence that she was simply careless, or disinterested, in providing an accurate version to them. That conclusion is, I think, strengthened by the variations in the version each defence witness recorded, which is suggestive of a want of care, caused by other factors, rather than deliberate prevarication. It is a conclusion which is not reached without earnest consideration, and a careful weighing of all the evidence, and the concern which naturally attaches when a plaintiff is found to have told untruths; but, ultimately, it is the only inference which sits, in a satisfactory way, with the credit which should be given Ms Boyle's evidence, and the impression left by the plaintiff, and her evidence.
- [22]There remains, of course, the possibility that the version given to the other witnesses contained some, but not all, the truth - for example, that a dog was mixed up in her fall in the defendant's driveway. That seems improbable. The plaintiff might have been expected to mention it immediately she returned to Ms Boyle's unit. It is much more likely the reference to a dog was simply a quick and convenient way for the plaintiff to, albeit untruthfully, accelerate the treatment she needed and, perhaps, avoid the embarrassment she felt at having, in fact, simply fallen over in the night.
- [23]I am persuaded, and find, that the plaintiff fell in the defendant's driveway, but told the defendant's witnesses something else because of her pain and distress and embarrassment. Anything less than the truth is always regrettable, of course, but the circumstances provide an explanation which is logical and acceptable, and ought not lead to a finding she should be disbelieved on her other evidence.
Liability
- [24]The evidence of the plaintiff, Ms Boyle, and the plaintiff's solicitor in 1997, Mr Dzelalija, and some photographs taken not long after the accident and, indeed, a video of the driveway taken shortly before the trial establishes that the driveway, at the time and about the place the plaintiff says she fell, sloped downward and contained pavers which were in a very poor or uneven state. At one particular place, identified by the plaintiff as the general area where she fell, that uneven state was something more than a mere discrepancy in the height of the pavers and included what can properly be described as a depression, or hole. Mr Booth, who gave evidence by telephone, said no work had been done on the driveway at all since 1985 except in connection with a drain, and that was consistent with the more recent exhibits which suggested repairs at some time after 1997.
- [25]Ms Boyle described the condition of the driveway as “pretty bad”, with paving which was “quite uneven“[19]. It was unlit. There is a streetlight nearby, but no evidence suggested it provided illumination in this area. Only Mr Booth thought the driveway was satisfactory but that evidence was contradicted by both the earlier, and more recent exhibits.
- [26]While the plaintiff was less than precise about the exact place at which she fell, she indicated the general area in the photographs (Exhibit 5) and the video (Exhibit 20). (Her refusal to be absolute in her description of the area is, as mentioned earlier, one of the matters which led me to conclude she was, generally, a careful and truthful witness.)
- [27]The evidence of Mr Dzelalija and the photographs (Exhibit 5) taken some time in 1998 established, and I find, that at about the place the plaintiff indicated there was a significant depression in the paving and that, on the balance of probabilities, is where she fell. His evidence, and what the exhibits showed, is entirely consonant with her description of the fall:
...I suddenly ... my right foot just went into some sort of ... not a hole, but something that actually ... the paving just sort of just went down and I just sort of reached out in front me ... [20].
- [28]I am satisfied that the pavers contained, about the area the plaintiff identified, a significant depression of about 15 cm and, although some repairs have since been effected and new pavers put in, the driveway still impresses as inherently unsafe for pedestrians, in darkness.
- [29]I am also satisfied that the area was unlit at the time and, importantly, that since the accident what appear to be sensor lights have been installed on a part of the building at the premises which would, most likely, illuminate the driveway[21].
- [30]It cannot be gainsaid that, in those circumstances, the risk of a fall by a pedestrian traversing the driveway at night was readily foreseeable; as the High Court said in Brodie v Singleton Shire Council (2001) 75 ALJR 992, at para 163 (per Gaudron, McHugh and Gummow JJ), darkness patently reduces the pedestrian's opportunity to see hazards, and the weight of the onus to take care:
As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia) or the surrounding area ... In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety.
- [31]While counsel for each party referred to a number of other authorities, the findings made earlier about the condition of the pavers, the existence of a significant depression at the place where the plaintiff fell, and the absence of lighting means this case simply requires the application of first principles touching the relationship of occupier, and lawful entrant[22]. There is no suggestion, in the defendant's case, that the driveway was satisfactorily illuminated at the time. On any view, the risk of a fell by a lawful entrant on a paved, but quite uneven surface with a significant depression in it, in darkness, is not only reasonably but very readily foreseeable, and something which a prudent occupier ought to have considered, and taken steps to repair. Sensor lighting, providing adequate illumination, is an obvious and comparatively inexpensive step; as, of course, are improvements to make the pavers more regular, and to eliminate significant depressions in the surface. I am satisfied the defendant's failure in these respects constituted a breach of his duty of care to the plaintiff, and constituted negligence.
- [32]Although contributory negligence was raised up in the defendant's pleading (at para 8) it was not pursued in the course of the hearing nor in written submissions provided by the defendant's counsel, Mr Kitchin; and, in any event, there is no basis for a finding against the plaintiff when, on any view, she had no other means of leaving the defendant's premises. I find the defendant is liable to the plaintiff for damages for her injuries.
Quantum
- [33]The plaintiff suffers a Colles' fracture in the right wrist, and was in plaster for six weeks, during which time she was unable to work. While the effects are ongoing, she said in her last Statement of Loss and Damage (September, 2002) that her only major problem in the past 18 months had been soreness in her wrist when she attempted to use a knife for cutting. She has some pain with other heavy tasks. Dr White, orthopaedic surgeon, saw her nine months after the accident and provided a report dated 19 May 1998 (Exhibit 1). He speculated, there, about the risk of future degeneration but conceded, in his evidence at trial, that if there was no evidence of osteoarthritic change now, then the risk was minimal. More recent, and therefore more useful opinions were provided by Dr Langley, 12 February 2002 (Exhibit 2) and Dr Gillett, 12 February 2001 (Exhibit 4), with the former assessing the permanent disability at seven per cent of the right arm, and the latter at five per cent.
- [34]Before the accident the plaintiff engaged in some sporting activities like weight lifting although, as she told Dr Gillett, she had never been a “very sporting person”. She does have some intermittent pain when she stresses her wrist joint with heavy lifting although, generally speaking, she is not now required to do that in her work as a nurse. She has been left with a 5%-7% impairment of the right upper limb for which, the various comparative verdicts provided by each counsel suggest, an appropriate award is $20,000.00. She is now 56 and, so far as the evidence revealed, has no other significant health problems; interest should, then, be awarded on one half of this sum at two per cent for the period since injury, i.e. 5.33 years: $1,066.00.
- [35]Special damages are agreed at $407.00. These outlays attract interest at five per cent, again for 5.33 years: $108.00.
- [36]The parties agreed the plaintiff's lost wages during her convalescence from the injury are properly measured at $2,900.00. This sum, too, will attract interest at five per cent for 5.33 years: $773.00.
- [37]The plaintiff claims that, in the future, she will be at a disadvantage in the open labour market in her chosen vocation as a registered nurse. She has a good work history, and returned to work as soon as possible, albeit initially on lighter duties. She now works as a hostel supervisor, a position she has held since May 2001. She gave evidence that some registered nurses work up to 70 years of age, although she could only give one example. She also said that she would not, now, be able to perform nursing tasks which involved heavy lifting, or turning patients, although she conceded in cross-examination that work of this kind was, ordinarily, not expected and would be performed by staff in inferior positions. I accept, however, her evidence that some opportunities for registered nurses have been closed to her, or she would experience difficulties with: for example, working the night shift in a public hospital would be difficult because the job generally requires the capacity to roll patients on a two-hourly basis. She would also have some problems in nursing jobs where it was necessary to assist patients, as in psychiatric or intensive care wards. While an occupational therapist, Ms Pratt (Exhibit 3), said she was managing her present work and household duties without any obvious difficulties, and limitations in her current employment were “mild” I accept that, if obliged to place herself on the open labour market for nurses, the plaintiff would face some vocational restrictions. This has the potential to cause loss of income because she would miss out, for example, on loadings attached to night-shift work, and would have to choose between a more limited range of nursing jobs. I also accept that she intended to continue to work for as long as she was physically able and, despite her present age, has no plans for retirement in the foreseeable future. Weighing all of these factors, I consider an award of $10,000.00 for future economic loss is the fair and proper measure.
- [38]The value of past care has also been agreed, at $1,600.00. This head, too, should attract interest at five per cent for 5.33 years: $426.00.
- [39]The plaintiff contends she will incur some expense for future care because she is restricted in performing heavier domestic chores, like mowing. She also said that in the past she has been active in performing her own home renovations, but will now require assistance with that, and things like mowing and gardening. Presently her lawn is mowed by a pensioner who lives next door although it appears this area is common property. Dr Gillett said that she could use a motorised lawnmower, as opposed to the hand mower currently being used by the neighbour. Otherwise, she gave no evidence about the nature, or possible duration, of assistance she might require with lawn mowing, gardening, or home renovations in the future. Nevertheless, I am satisfied she suffers some minor limitations, which are ongoing, but the loss is on any view a minor one and, while an award is appropriate it should, in comparative terms, be minimal: I consider an allowance of $2,000.00 is appropriate.
- [40]I set out a summary of the various awards:
General damages | $20,000.00 |
Interest | $1,066.00 |
Special damages | $407.00 |
Interest | $108.00 |
Past economic loss | $2,900.00 |
Interest | $773.00 |
Future economic loss | $10,000.00 |
Past care | $1,600.00 |
Interest | $426.00 |
Future care | $2,000.00 |
TOTAL | $39,280.00 |
- [41]Subject to amendment or any slips in the calculation of damages set out above, I find the plaintiff ought to have judgment against the defendant for damages for $39,280.00. I will hear submissions about costs.
Footnotes
[1] Amended defence filed 15 March 2002, para 3
[2] T 154 11 11-13
[3] T 154, 11 31-33
[4] T 59, 11 1-11
[5] T 61, 11 46-55
[6] T 15, 11 19-42
[7] T 17, 11 36-48
[8] T 17, 11 20-21
[9] T 18, 11 23-24
[10] T 75, 11 40-46
[11] T 87, 130; T 88, 120
[12] T 86, 130; T 88, 120
[13] T 86, 11 38-41
[14] T 80, 11 26-32
[15] T 80, 11 34-36
[16] T 80, 11 39-46
[17] T 81, 142
[18] T 85, 137
[19] T 83, 11 15-27
[20] T 12, 11 52-59
[21] Exhibit 20; Ms Boyle's evidence at T 83, 11 5-10
[22] Discussed in Puflett v Proprietors of Strata Plan No. 121 (1987) 17 NSWLR 372; Miners v Town Inns (Pennant Hills) Pty Ltd (NSWSC) per Findlay J, 17 December 1985; New South Wales v Broune (2000) NSWCA 3; Australian Capital Territory v Badcock (2000) 169 ALR 585; Gondoline v Hansard (2002) WASCA 214; Jaenke v Hinton (1995) QCA, 3 November 1995, 37/95; and Bartlett v Robinson (1981) 27 SASR 342