Hodgson v Gold Coast City Council
[2003] QDC 15
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- Hodgson v Gold Coast City Council[2003] QDC 15
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Hodgson v Gold Coast City Council[2003] QDC 15
Hodgson v Gold Coast City Council[2003] QDC 15
DISTRICT COURT OF QUEENSLAND
CITATION: | Hodgson v Gold Coast City Council [2003] QDC 015 |
PARTIES: | ALANA HODGSON Plaintiff and Gold Coast city council Defendant |
FILE NO: | Claim 870/2001 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Southport |
DELIVERED ON: | 28 February 2003 |
DELIVERED AT: | Southport |
HEARING DATES: | 22 & 23 January 2003 |
JUDGE: | Alan Wilson SC DCJ |
ORDER: | Claim dismissed |
CATCHWORDS: | NEGLIGENCE – OCCUPIER’S LIABILITY – PUBLIC AUTHORITY – PUBLIC FOOTBRIDGE – crack in asphalt surface of public footbridge, producing an 8-10mm variation in height of asphalt – plaintiff tripping at this crack – defendant had prior knowledge of crack – whether local authority negligent in failing to remove crack – duty of care owed by local authorities to the users of roads, footpaths, footbridges etc. – whether crack dangerous to a pedestrian taking reasonable care for her own safety – relevance of economic issues and defendant’s budgetary allocation for pavement repairs to assessment of breach of any duty of care Cases considered: Burwood Council v Byrnes (2002) NSWCA 343 Garvan v ACT (2002) ACTSC 70 Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Gondoline Pty Ltd v Hansford (2002) WASCA 214 Lombardi v Holyrod City Council (2002) NSWCA 252 Richmond Valley Council v Standing [2002] NSWCA 359 RTA v McGuinness (2002) NSWCA 210 Spencer v Maryborough City Council [2002] QCA 250 Wilkinson v Law Courts Ltd (2001) NSW CA 196 |
COUNSEL: | Mr C Wilson – plaintiff Mr K S Howe – defendant |
SOLICITORS: | Shane Ellis Lawyer – plaintiff O'Keefe Mahoney Bennett – defendant |
- [1]The plaintiff Mrs Hodgson, and her husband and another couple, were running together on the evening of 19 June 2000, training for a fun run the following Sunday, when Mrs Hodgson fell while they were crossing the Currumbin Creek footbridge. She says she tripped over a raised section in the asphalt surface of the footbridge, 8-10mm above the surrounding bitumen. She suffered a fracture of the left elbow, and sues the Council for damages for negligence which arises, she alleges, because of the defect in the surface of the footbridge. She says the Council was negligent in one or more of these respects:
- (a)in its original design, and construction of the footbridge;
- (b)in failing to repair the surface of the footbridge, and remove the raised section;
- (c)in failing to erect a sign warning pedestrians about the rough surface of the footbridge.
- [2]The footbridge spans Currumbin Creek and runs north-south, approximately parallel to the eastern side of the southbound carriageway of the Pacific Motorway, which is about 18m to the west. It was constructed by the defendant’s predecessor Albert Shire Council in about 1994, by the conversion of an abandoned railway bridge. Its basic structure is steel, with an asphalt-lined, plywood deck superstructure. It is 173m long, with 144 construction joints along the timber deck, eight of which are fitted with compressible infill, and 136 of which have fixed joints. At night it is principally illuminated by yellow sodium vapour lights on the motorway, and headlights from southbound traffic on that road. It is used by children from neighbouring schools, patrons of a nearby RSL club and, from what Mrs Hodgson said about other occupants on the evening in question, fishermen, cyclists, and people exercising by walking, jogging or running.
- [3]The plaintiff gave evidence herself and called her husband, Robert, and an engineer, Mr Smolakovs. The defendant called one of its managing engineers, Mr Gunaratne, a safety engineer Dr Johnn Olsen, the Council’s director of engineering services Mr Warren Day, and its manager of maintenance services Mr Andrew Cooper. Medical records, and medicolegal reports from orthopaedic specialists Drs Stabler, White and Martin were all admitted by consent, without any requirement for cross-examination.
Liability
- [4]Mrs Hodgson had run and walked over this bridge before on “numerous occasions” (as, I accept, she told Dr Martin) but, as I also accept, not for some considerable time before the evening of her fall. Both she and her husband acknowledged that irregularities, unevenness and imperfections (of 8-10mm, as here, or more) are encountered when running and walking. The group of which the plaintiff was a member was running across the footbridge from the north, to the south. Some cyclists were approaching from the other direction as they neared the southern end of the bridge and, as Mrs Hodgson frankly conceded, she was watching them and not the surface of the bridge when she fell.
- [5]The evidence, including photographs of the bridge, clearly establishes that the asphalt surface is traversed, at regular intervals, by cracks which, as the evidence also shows, align with gaps in the plywood subsurface. Mrs Hodgson hurt herself in her fall, but was able to continue the run with the group. Her symptoms worsened later. At the time of the fall she and her husband looked for the cause, and her husband marked the railing on the bridge at a point near one of these cracks, about 33.5m from the southern end.
- [6]The accident occurred some time around, or after, natural twilight. The plaintiff said there were no lights on the footbridge itself but there was light falling from the fixed lighting on the motorway, and traffic on it and, she thought, some natural light. In any event, neither Mrs Hodgson nor her husband said the quality of the light was such as to dissuade them from running across the bridge. She was able to see the fishermen as she crossed, and the oncoming cyclists, although their bicycles did not have lights on. Just prior to the fall she was running at her normal pace, watching those cyclists and not looking at the surface of the footpath[1].
- [7]The accident scene was inspected about a month later by the plaintiff and Mr Smolakovs, an engineer, and some other persons. Mr Smolakovs’ report[2] and his evidence was directed towards showing that, at the place Mrs Hodgson fell and her husband marked, one of these cracks in the asphalt contained a gap and a raised section of bitumen above the asphalt surface in the area preceding the crack, from the direction Mrs Hodgson was running.
- [8]Mr Smolakovs’ evidence about this crack, and what he said was a photograph of it in his report[3], is troubling. The body of the report contains a statement that the accident site was 10-15m from the southern end of the bridge, and does not identify the photograph shown at plate III, View B of Exhibit 6 as representing the place identified by Mrs Hodgson and her husband; but, in his evidence, Mr Smolakovs was adamant that it was, and that his reference to a distance of 15m was wrong, and he actually measured the crack shown in that photograph at 33.5m, or thereabouts.
- [9]Notwithstanding reservations about the accuracy of this evidence and what is shown in that photograph I was, ultimately, persuaded to accept that it does show the place where Mrs Hodgson fell by the evidence of her husband whom I found to be, like his wife, a careful and reliable witness. He appeared to have quite a good recollection of the spot at which his wife fell, and was able to identify it in that photograph[4].
- [10]Mr Smolakovs measured the height of the raised section, around the crack at 8-10mm. Dr Olsen measured something of the same order albeit, it appears, at a different place or on the other side of the footpath[5]. The experts did agree that the asphalt surface of the footbridge is, more or less, uniformly cracked, generally along the constructions joints in the deck underneath the asphalt.
- [11]In the absence of some other explanation I accept that Mrs Hodgson fell when her right foot came in contact with the crack in the asphalt surface marked by ridges which were 8-10mm above the asphalt surface. By the time that occurred, however, she had (as I also find) traversed a number of other cracks, quite similar in appearance, as she ran across the bridge. I am satisfied there was some natural and artificial light, but it was insufficient for her to precisely discern the height of the asphalt around each of these cracks or whether it was higher than the surrounding surface; but also that, in any event, she was not looking at the cracks in the interval before she fell but, rather, at the oncoming cyclists.
- [12]The Council was aware of the cracking in the asphalt surface before Mrs Hodgson’s fall. The bridge had previously been inspected by an independent engineer who had reported, rather alarmingly, about the safety of its structure and on other aspects of it, including cracking in the surface[6], and, as a consequence Mr Gunaratne, the Council engineer, had gone out to inspect it and seen the cracking.
- [13]In light of those facts, the critical question in this case is whether or not the Council was negligent in failing to take steps to eliminate the height differences in the asphalt surface; or, at least, to erect warning signs so that users of the bridge would be alert to them. As an element of that negligence the Council is said to have built the bridge, originally, in a defective way.
- [14]The relationship between occupiers and entrants (including local authorities and members of the public) has attracted considerable attention from the Courts in recent years, and, it is appropriate, as Heydon JA[7] did in Richmond Valley Council v Standing [2002] NSWCA 359, at 9, to collect some key points made by the High Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (2001) 206 CLR 512. At para [150] Gaudron, McHugh and Gummow JJ said that persons in the position of the defendant having statutory powers to design or construct roads or carry out works or repairs on them:
…are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk is unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.
- [15]Those Judges went on to say at [151]:
The perception of the response by the authority calls for, to adopt the statement by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 4-48, a consideration of various matters; in particular, the magnitude of the risk and the degree of probability that it will occur, the expense, difficulty and inconvenience to the authority in taking the steps described above to alleviate the danger, and any other competing or conflicting responsibility or commitments of the authority. The duty does not extend to ensuring the safety of road users in all circumstances. In the application of principle, much thus will turn upon the facts and circumstances disclosed by the evidence in each particular case.
- [16]They then said at [160] and [162]-[163]:
In dealing with questions of breach of duty, while there is to be taken into account as a “variable factor” the results of “inadvertence” and “thoughtlessness”…a proper starting point may be the proposition that the persons using the road will themselves take ordinary care.
…
The formulation of the duty of care includes consideration of competing or conflicting responsibilities of the authority. In the circumstances of a given case, it may be shown that it was reasonable for an authority to deal in a particular priority with repairs in various locations. The resources available to a road authority, including the availability of material and skilled labour, may dictate the pace at which repairs may be made and affect the order of priority in which they are to be made. It may be reasonable in the circumstances not to perform repairs at a certain site until a certain date, or to perform them after more pressing dangers are first addressed. Even so, it may well be reasonable for the authority to exercise other powers including, for example, by erecting warning signs, by restricting road usage or, in extreme cases, by closing the road in question. The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian…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…
- [17]In the same case Gleeson CJ said at [6], and [7]:
…when general principles of negligence, unqualified by any rule of immunity, were applied, the Courts insisted that an injured plaintiff had to show that the road or footpath was dangerous. That did not mean merely that it could possibly be an occasion of harm. The fact that there was unevenness of a kind which could result in a person stumbling or falling would not suffice. Not all footpaths are perfectly level. Many footpaths are unpaved. People are regularly required to walk on uneven surfaces in both public and private land.
…
Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green (per Cumming-Bruce J in Littler v Liverpool Corporation [1968] 2 All ER 343 at 345).
- [18]Since the decision in Ghantous the duty of care which obtains for a local authority, in the position of the defendant here vis-à-vis this footbridge, rests in its statutory powers in connection with the safety of pedestrians: in this instance, the Local Government Act 1993, s 901. This characterisation of the duty is preferred to analogies between occupation of privately owned land, or the management and control by statutory bodies of land set aside for public use and enjoyment[8].
- [19]The nature of this duty of care was explained by Heydon JA in Richmond Valley Council (supra) at para [29] as one which turned upon the question whether the defendant’s failure to repair the footpath (or, here, in its manner of constructing the bridge, or failure to put up a warning sign) created a foreseeable risk of harm. In that case the plaintiff was injured when she tripped and fell on an irregular paved concrete surface, in broad daylight and, in finding that no risk of that kind arose his Honour pointed, in particular (at para [54]) to the fact that:
The plaintiff, like pedestrians generally, was in an excellent position to see and avoid imperfections in the surface. There could have been no expectation on her part that the surface would be smooth. The unevenness in the paving slabs, the cracks and the holes at the place where the plaintiff was moving were as obvious as similar features all over the country, and as obvious as other common features like raised tree roots and manhole covers. There was no concealment of any of the features of the site which the trial Judge criticised. There was no inadequacy in the lighting, or obscuring of the hazard by grass or otherwise. It was reasonable to expect the plaintiff to have seen what lay ahead of her as she walked along in broad daylight: what was there was obvious and called for no special vigilance.
- [20]He went on to say, at para [55]:
The condition of the pavement was typical of innumerable kilometres of pavements in the cities, suburbs and towns of this country. The imperfection was of a kind which users of footpaths have from childhood habituated themselves to look out for and avoid, in view of the fact that surfaces which pedestrians use may be uneven, not flat and not smooth. The imperfection was not a danger, a hazard or a trap. Neither Mr Moir nor the trial Judge demonstrate how Mr Moir’s figure of 10mm depth in the hole as the criterion of liability was crucial and, if it was, how that view could be reconciled with the reasoning in Brodie’s and Ghantous’ cases.
- [21]And, then, at para [56]:
The reasoning of Hodgson JA (Foster AJA and Brownie AJA concurring) in Lombardi v Holroyd City Council [2002] NSWCA 252 at [32] applies here:
I do not accept that a plainly visible step of 25mm in a footpath is correctly regarded as high risk or unacceptable risk. It is desirable that even obvious steps of 25mm in footpaths be avoided and eliminated if possible; but that is not to say that the failure of a council to detect and eliminate all such risks is negligent. As a general rule, in my opinion it is not.
- [22]Here, then, the factors relevant to the question of a duty of care will involve the matters set out the passage from Ghantous, recited at para [15][9]. In considering the risk, Council was obliged to take into account, I think, that this footbridge was apparently well-used by the community for a variety of purposes; that it might be used at dusk, or even in darkness; and, that at any given time users might, while traversing it, be called upon to pay attention to the movement of other users (here, cyclists) and, perforce, be distracted from watching the surface itself; or, in circumstances of semi-darkness, not be able to readily discern changes in the level of the surface.
- [23]The defendant referred me to a number of cases from various Australian jurisdictions, and produced a schedule of the various height differentials in footpaths, roads, etc. where other Courts had determined no duty of care arose, or the local authority was not in breach of that duty[10]. While these cases are of interest, each, of course, turned very much upon its own circumstances. It seems to me that, in the present instance, the question whether a duty of care existed involves the answer to a fairly simple question, rooted in first principles: in the prevailing circumstances, including the likely presence of other users and limited light, was there a reasonably foreseeable risk of harm to a person in the position of the plaintiff?
- [24]There is no evidence of any other falls, on this bridge, or of any other circumstances which should have brought home to the Council that these cracks might constitute a danger. This particular crack involved a height differential which is, on any view, very small: 8-10mm or, in the old imperial measure, between about one-third and two-fifths of an inch. Mr Smolakovs gave evidence that “In the course of one’s gait, one’s foot moves, from step to step, within 0-6mm above such a surface”[11] but the assertion, if correct, is not determinative that a duty of care will always arise if a greater variation exists. It is simply another matter to be considered when the question of a possible duty arises.
- [25]In any event the movement involved in running is, plainly, quite different from that when walking and there is no evidence about the height of the average person’s foot in the former exercise. Mr Smolakovs also said that significant injury can occur from “same level” trips and falls[12], but that is hardly germane to what occurred, in this instance, to a running plaintiff on what is, from all the evidence, quite a regular surface with very small variations in height.
- [26]It is difficult to see how, having regard to the very small dimension of the irregularity, a duty of care arises. Nor is this conclusion affected, I think, by any paucity in the light falling on the surface of the bridge at the time. The plaintiff was in a position to observe the state of the light as she began to cross, and the irregularity was a possibility she should, acting reasonably, have anticipated and looked out for. Whether she traversed the bridge in daylight, or at night and whether walking, or running, Mrs Hodgson was obliged to take some care for herself by watching out – and, the Council was entitled to assume she would do so.
- [27]Universal experience is that minor variations in the height of footpaths and the like are always present, and this one was so small that it could not reasonably be described as a risk in daylight, or a concealed trap in semi-darkness. Nor can it be categorised as something which became dangerous in, or because of, reduced light so that even if it was safe in daylight, at night it was a hazard.
- [28]There will, in some cases of this kind, be a point at which it might be said the dimensions of the variation in height of the surface being traversed will constitute a hidden, unusual or unexpected danger which gives rise to a duty of care; but in all the circumstances arising here I do not think this minor variation can be categorised as anything other than common, and insignificant, and typical; and, something which was too small to give rise to the duty the plaintiff seeks to posit in the Council because of it.
- [29]Even if this view is wrong and the circumstances gave rise to a duty of care, I am not persuaded the defendant was in breach of it. The existence of a duty will trigger the type of breach analysis referred to in Wyong Shire Council (supra) at 47-48. The exercise will involve, as Mason, Brennan and Deane JJ said in Webb v South Australia (1982) 56 ALJR 912 at 913:
The question then is: what is the response which a reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said:
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 of taking alleviating action and any other conflicting responsibilities which the defendant may have.
- [30]As explained earlier the exercise will also involve, when a local authority’s duty falls for consideration, its competing or conflicting responsibilities and the resources available to it. The evidence of Mr Gunaratne, Mr Day and Mr Cooper showed this Council has, within its budgetary constraints, introduced policies which are reasonable, and appropriate. Mr Cooper said that, generally speaking, the height differential in such things as footpaths of less than 10mm was regarded as being “relatively insignificant” and:
It is beyond the resources of council to be able to repair all such height differentials. They are pretty common. If you walk around you will see plenty of them in the streets.
…
It would be prohibitive cost wise. It would be many times this amount that we’ve already spent in trying to rectify these defects[13].
He also said, and I accept, that there had been no previous report of any problems with the surface of this footbridge.
- [31]Mr Gunaratne inspected the bridge as a consequence of the earlier report which suggested it required repair and maintenance work, and that inspection included attention to an aspect of the report which noted “asphalt breaking up in all plywood deck joins”. He said:
I have seen asphalt cracks, cracks on asphalt all along the bridge, mostly on joins, then I have noticed the cracks, difference levels at the cracks are about, I mean, less than 10mm.
…
I decided at that stage that the surface is not a dangerous one[14].
- [32]In response to a question about the Council’s policy concerning the 1,000 kilometres of footpaths, cycle-ways and the like within its local authority area, Mr Day said it had a system of dealing with height differentials in the surface of those things which varied with, and was responsive to, the extent of the difference:
We have four different classifications. I think they’re extreme, high, medium and I forget exactly what the terminology is on the other one, but I suppose low. Extreme would be something in excess of 50mm, medium would be, I think, 25-50 – sorry, that was high. Medium is I think 15-25 and then less than 10mm would certainly be very low[15].
…
What we try to do is minimise the risk, obviously, to anybody using it. There would be a physical and an economic constraint to council carrying it out to a much higher standard. What we’ve done is we’ve contacted many other councils across Australia to try to come up with these intervention levels and we are – I suppose I would have to say that at this point in time we’re having a lot of trouble financing these existing intervention levels.
…
We have a number of situations where we do have ones in the medium to high bracket. We certainly deal with them and I believe we are dealing with them in accordance with this standard, but less than 10mm would be a huge number[16].
Evidence about the system and the levels of priority, including response to actual complaints about falls, and other incidents is also contained in Exhibit 15.
- [33]The policy appears, in all its facets, to be reasonable and appropriate. It also accords with remarks made by Holmes J in Spencer v Maryborough City Council[17]:
To say that the council should have committed itself to such close and constant inspection of its footpaths to ensure that any defect was eradicated before reaching dimensions of 9-10mm dictates, in my view, a use of resources which is not rational in relation to the risk posed.
- [34]This defendant had a policy, in the case of a reported incident, of replacing or eliminating something even if it fell into the lower risk categories. There is no evidence of a previous complaint, so that had not occurred here. The policy accords, I think, with the principles of reasonableness considered in Wyong Shire Council.
- [35]Nor, for the sake of completeness, am I persuaded there was any defect in the construction of the bridge, constituting a breach. Mr Gunaratne said, and I accept, that it was constructed in accordance with manufacturer’s specifications and, again, there is no evidence that method had led to earlier problems. I did not, on this count, find Mr Smolakovs’ evidence persuasive. During cross-examination it became apparent that his description of the bridge itself was wrong and, when challenged to say how the construction methods were incorrect, he could only point to the existence of cracking as, itself, an illustration that there must be defects[18]. There was some dispute about the effectiveness of various alternate methods of construction involving, say, metal strips between the plywood panels or the use of tongue and groove planks but the latter, in particular, seemed to me a counsel of perfection in the circumstance where this bridge has, from the photographs, the kind of surface commonly encountered on similar structures and, generally, in the public environment.
- [36]The plaintiff’s contention that warning signs should have been erected is, in light of the very small nature of the change in surface level, excessive and inappropriate. As Mr Day said, a criterion which called for warning signs for a surface with these miniscule differences would create an environment entirely overwhelmed by similar signs – reducing, or extinguishing, their effect. The submission is open to the same criticism as Heydon JA advanced, in respect of a similar argument in Wilkinson v Law Courts Ltd (2001) NSW CA 196, at para [33]:
…the steps are used by many persons who speak English badly, so the warnings would have to be in more than one language. Perhaps there should be other warnings about the danger of descending steps in wet weather, the general need for care in using steps, the need to look out for persons manoeuvring trolleys wheelchairs or television cameras, and so on. The more the warnings, the less the effectiveness of each. The human imagination can conjure up many circumstances in which a user of the steps might suffer injury.
- [37]The plaintiff attempted to meet this argument with the contention that it did not propound the need for signs in all instances within this local authority’s area but, simply, in this one. The proposition cannot stand: if, in the face of this small height differential the Council had a duty to put up warning signs, how could that duty not attach in all similar instances throughout the shire?
- [38]It is unnecessary, in the circumstances, to deal with a plea of contributory negligence raised up by the defendant against Mrs Hodgson, but appropriate to note that had she established a duty of care, and breach of it, she would also have been exposed to a finding of contribution of, I think, a high order. As she frankly conceded, she was well aware of the hazards of running on public footpaths and the like and of the height differentials in them; she had not traversed this particular bridge for some time; as she crossed it she could clearly see there were other users and she needed to watch them to avoid collisions; the ambient light was something less than clear daylight; yet, she chose to run, and continue to run – and, relevantly, to do so notwithstanding the diversion caused by the approaching cyclists, and the need to pay attention to them.
Quantum
- [39]Mrs Hodgson was 50 when injured, and 53 at the time of trial. She suffered an impacted and slightly comminuted fracture of the left radial head, involving the articular surface; damage to the articular cartilage both on the radial head, and on the capitulum; and, grazing to both knees and hands. She underwent four separate operations involving, in total, 12 days in hospital and 27 days off work. She had worked, for some years before the accident, as a medical receptionist and, at the time of the accident, was employed by Queensland Medical Laboratories, part-time, in that capacity.
- [40]Her treating orthopaedic surgeon Dr Stabler, and the other orthopaedic specialists who reported upon her, Dr White and Dr Martin, agree that she has been left with some degree of permanent impairment in the left elbow. Dr White measured it at 25% of loss of function in the left upper limb, or 15% of the whole person, and Dr Martin at 15% of the limb, and 9% of the whole person.
- [41]Dr White also says that Mrs Hodgson may require surgical replacement of the left elbow at some unspecified time in the future which, if necessary, would leave her with a permanent disability of 35-40% of the limb. He was also persuaded she had suffered some damage to her left shoulder causing an additional 5% loss of the left upper limb, and 3% of the whole person; and, some patello-femoral articular damage in the right knee causing a 10% loss of use of that limb, and 4% of the whole person; and, that she aggravated a mild previously asymptomatic degenerative change in her left wrist and thumb which, additionally, left a 5% disability in that limb, and 3% of the whole person. On the Combined Values Chart (Guides, 4th edition, p 322), Dr White says, all these injuries and effects amount to an overall disability of 17% of the whole person.
- [42]Dr Martin found, however, no symptoms attributable to the alleged injuries to the shoulder, wrist or knee and said she would not require any further treatment including, in particular, a surgical replacement in the left elbow.
- [43]I found the plaintiff to be an impressive, and careful witness who did not exaggerate her symptoms or their effects. She spoke about the appearance of symptoms in her right knee and arm which had not troubled her before the accident but which now, she says, persist and are aggravated by her work and domestic activities, and inhibit her formerly active sports and leisure pursuits. In light of her evidence I prefer the conclusions of Dr White and, hence, also accept that she has measurable disabilities in the left shoulder, and wrist and right knee which are related to her fall and would be properly compensable in damages here.
- [44]It does appear, from Dr White’s report, that the prospect of degeneration to the point a surgical replacement of the left elbow joint is necessary is remote and, at the highest, should only be reflected in her damages on that basis. Otherwise in all the circumstances, including her age, and the fact that she has been able to return to employment and does not seem to require on-going domestic assistance, a figure of $30,000.00 for general damages for pain, suffering and loss of amenities is appropriate. In light of the initial pain and discomfort associated with her symptoms, only relieved after a number of operations, interest should be awarded on one half of that sum, i.e. $15,000, at 2% for 2.6 years - $780.00.
- [45]Special damages are agreed at $22,500.00, and interest on those damages is also agreed at $500.00.
- [46]Her claim for past economic loss was initially advanced both for periods referrable to her absence from work and, generally, for the period from 1 August 2001 to trial when, it was suggested, her earnings were reduced as a consequence of her injuries. The latter claim was, however, abandoned in written submissions received after the conclusion of the hearing and the claim now advanced is for $1,333.30 for the initial absences for treatment, which I accept. This figure should attract interest at 5% for 2.6 years, i.e. $173.33.
- [47]A claim for future economic loss was advanced on the grounds Mrs Hodgson could not, now, perform any job in her usual vocational area which involved extended typing, standing, sitting or lifting. This, it is said, has a clear effect on her vocational choices and means she is disadvantaged in the labour market. She said and I accept that it was always her intention to work to age 65. Her present net pay is $363 for a 31-hour week. In submissions her counsel contended for an award under this head in the range $25,000-$35,000. Against that, the defendant submitted that her present employment is, apparently, secure and she gave evidence that she regarded herself as fit to perform her present work, or full-time work in the same job, and believes she will be able to continue until age 65 so there is, at the highest, only a remote possibility of future loss.
- [48]Mrs Hodgson presented as a robust and determined person who, to her credit, has persevered with work despite the effects of her symptoms. While, fortunately, she is trained and experienced for jobs which do not involve a high component of physical effort, I accept that her symptoms do inhibit some elements of the jobs for which she is suited and, with the passing years, there is a growing risk that those effects will be magnified. There is then, I think, a discernible risk she is exposed to some economic consequences but not at a very high level. Weighing these contingencies leads, in my estimation, to a proper award under this head in the sum of $10,000.
- [49]The parties agreed the plaintiff should recover $8,500 for past and future care, and interest (the Griffiths v Kerkemeyer head). A claim was also advanced on her behalf for the cost of possible future joint replacement surgery – identified, a little vaguely, at the present time as involving medical expenses of $3,000, the cost of the actual prosthesis itself at $5,000-$10,000, plus 7-10 days in hospital. The fact that Dr White accepts she is suitable for work in “any lighter occupation” and is “likely to remain so until normal retirement age” suggests, as noted earlier, that the risk this surgery will become necessary is not high. I accept, nevertheless, that it exists and some component should be allowed for it but in a sum reflecting the fairly remote level of the contingency which, I think, is properly measured at $2,000.
- [50]In summary, then, I calculate the plaintiff’s damages as follows:
General damages Interest on general damages Special damages Interest on special damages Past economic loss Interest on past economic loss Future economic loss Past and future care, including interest Future medical expenses | $30,000.00 $ 780.00 $22,500.00 $500.00 $1,333.30 $173.33 $10,000.00 $8,500.00 $2,000.00 | |
TOTAL | $75,786.63 | |
Conclusion
- [51]The plaintiff’s claim is dismissed. I will hear submissions about costs.
Footnotes
[1] Transcript p 43, ll 20-30
[2] Exhibit 6
[3] Exhibit 6, plate III, View B
[4] T pp 65-66
[5] Exhibit 7, p 2 para 2; p 4, l 2
[6] Exhibit 13
[7] As his Honour then was
[8] Ghantous (supra) at para [418]
[9] Wyong Shire Council v Shirt (supra) at 47-48; Ghantous (supra) at paras [162]-[163]
[10] Ghantous (supra); Richmond Valley Council (supra); Spencer v Maryborough City Council [2002] QCA 250; Lombardi v Holyrod City Council (2002) NSWCA 252; Gondoline Pty Ltd v Hansford (2002) WASCA 214; RTA v McGuinness (2002) NSWCA 210; Burwood Council v Byrnes (2002) NSWCA 343; and, Garvan v ACT (2002) ACTSC 70; and see a similar schedule in Proctor, Jan-Feb 2003, p 22
[11] Exhibit 6, p 8, para 1
[12] Exhibit 6, p 8
[13] T 112
[14] T 134
[15] T 180
[16] T 181
[17] (2002) QCA 250, at p 11
[18] T 92, T 93 ll 1-20