Kumar v Maryborough City Council
[2003] QDC 211
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- Unreported Judgment
- Kumar v Maryborough City Council[2003] QDC 211
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Kumar v Maryborough City Council[2003] QDC 211
Kumar v Maryborough City Council[2003] QDC 211
DISTRICT COURT | No D51 of 2002 |
CIVIL JURISDICTION
JUDGE BRABAZON QC
KYLIE MAREE KUMAR | Plaintiff |
and
MARYBOROUGH CITY COUNCIL | Respondent |
HERVEY BAY
..DATE 17/06/2003
JUDGMENT
HIS HONOUR: On the 27th of December 2001 Mrs Kumar fell and hurt herself on land owned or controlled by the Maryborough City Council. She sues for her damages. Today both liability and the amount of those damages are in issue.
Mrs Kumar, her husband, and two young children had been living for about a year at Lot 56 Annie Street. Her parents lived next door at Lot 47. Beside Mrs Kumar's residence on the north west was a vacant block of land owned by the Council. The end of that vacant block joined onto a much larger piece of land owned by the Crown, but under the control of Council as a reserve.
The land is relatively low-lying and the purpose of the vacant land with an area of 4,758 square metres, and Lot 59, together with other lots to the south is to provide drainage. When one looks at the plan, Exhibit 6, the vacant land looks rather like a battle axe with the head of the axe to the north of Mrs Kumar's residence.
During the 12 months before Christmas 2001 Mrs Kumar did not walk onto the large vacant area. However she had driven over it in her father's car. He, like some other nearby residents, would sometimes drive across Lot 59 to gain entrance to his own property which abutted the Crown land.
It should be explained that this land was not used as a park. It had no improvements such as pathways, seats, swings, or the like. Rather, it was slashed about six times a year, depending on the season and the weather, and so simply had the appearance of vacant land with a somewhat variable amount of grass on its surface. Overall, the land was fairly flat.
There is a boundary between Lot 59 and the larger Crown land. That boundary is in the same line as the northern boundaries of the five residences side by side, of which Mrs Kumar's and her parents' are two. It appears in the photographs that there are presently simple fences of wire and steel posts at the bottom of Mrs Kumar's residence and also at the bottom of the residence on the other side of Lot 59, that is Lot 68.
There has been, in recent times, no fence dividing Lot 59 and the Crown land. It is likely that there was a fence many years ago of which all signs have now completely disappeared. However, at Christmas time 2001 there still remained a wooden post which had been supported by a steel post.
For some unknown reason, the two posts which were wired together were forced almost onto the ground, so that the steel post remained in the soil, but was bent at almost 90 degrees. The result was an old wooden post, a metre or so long, and about 125 millimetres wide, tied to a rather rusty looking steel post with various pieces of wire, with the bottom end still touching the ground, and the top elevated above the ground at what might be about 150 millimetres. So much appears from the various photographs in Exhibit 9-9C. It is this post which has given rise to the present litigation.
Near the post is what can be described as a steel box. At least, that is its appearance from some distance away. It is probably a little less than a metre in height, and would be a cube, roughly, if it had a lid. The sides, on closer inspection, are made of something that look like steel louvres. No-one knows why it was there, but the speculation of some people is as likely as not - that is, it was used by a previous occupant of Lot 59 to hold feed for horses.
The box is close to the north western corner of Lot 59. That is to say, if Mrs Kumar looked out from the landing at the back of her residence, she would look more or less to the north and see the box and indeed, the post lying at the foot of it, and immediately to the left a shrub and a gumtree. So much appears from Exhibit 9, a photograph taken from the landing of her house. As can be seen in that photograph, the various vehicles which entered over Lot 59 from time to time made an obvious track which passed to the right of the box and the fallen post.
Judging by the area of the land and the shape of Lot 59, it might be estimated that the width of the rear boundary to Lot 59 is about 21 metres. Exhibit 9 shows the boundary running from just to the left of the box (which conceals a red surveyors peg) to the corner of Mrs Kumar's property which is marked by a steel post beside an accumulation of rubbish at the end of the lawn which was mowed by Mr Kumar.
The evidence is that the grass was last slashed before Christmas 2001, on the 2nd of November 2001, almost two months before. There was a drought in the area at the time, and that contributed to the appearance of the grass which was not luxuriant. Most of the grass, according to the witnesses, was only a few inches high, with scattered bits of longer grass with seeds on the top. Those bits might have been two or three times that height.
Some witnesses were inclined to suggest that the grass around the fallen post and the box was almost up to their knees, but that should not be accepted as the photographs clearly contradict that suggestion. The photographs were taken one or two days after Mrs Kumar's accident, and before the grass was slashed again.
It was also the job of the Council employee who drove the tractor and slasher to use herbicide around structures and under trees. It seems certain that the bare areas of ground shown around the box and the post in a paddock which is otherwise entirely grassed, is due to the use of the spray.
All of this is being recounted because Mrs Kumar fell over the post when she went for a walk with her husband just before sunset on the 27th of December. She had not been down to that area before, nor had she crossed over the imaginary boundary line and walked from Lot 59 onto the Crown land. She and her husband were intending to cross the vacant blocks and go across to Leslie Drive where they planned to visit a friend. He was pushing their youngest child in a stroller. She was walking on his left. They were talking. The weather was fine. It should be accepted, as both of them said, that the sun was still shining. She remembers that the sun was shining in her face.
Bearing in mind their path, and the orientation of the lots, and the time of year, it is likely that they were facing in a northwesterly direction as they approached the post. It is therefore easy to understand that she might describe the setting sun low in the western sky as shining on her face, Mr Kumar described the sun as being in a similar position, low above the horizon.
It should also be accepted (as he says) that the post was actually in the shade, either of the steel box or of the shrub at the time. However, the evidence indicates that it would have still been a fairly brightly lit area.
There are suggestions that Mrs Kumar might have said shortly after the accident that it happened at night time. That was either a misunderstanding as to how she expressed herself, or perhaps she gave two slightly different versions as to the time.
Sunset on the day in question was at 6.42 p.m. Her account was always that they walked across this land between 6,30 and 7,00 p.m. Her evidence at the trial should be accepted, as should the evidence of Mr Kumar - it is consistent with that time.
There was a good deal of attention paid at the trial as to how long the post had been in its almost horizontal condition. It is not known how exactly it got there, but presumably it was pushed over by somebody. It does not appear to have been run over by a slasher. It is possible that it was pushed over by a vehicle which struck it.
In any event, the preponderance of evidence, especially that given by Mrs Nielson, suggests that the post was probably on its side for more than two months and perhaps up to a year. Also to be taken into account is the appearance of the post. The photographs show that ants had been building their paths or nests against the base of it. They did not seem to have been disturbed for some time.
All things considered, it should be found, on balance, that the post was in that condition when Mr Hardman, the Council truck driver, slashed the grass nearby on 2 November 2001. That may be significant because Mr Hardman had duties which amounted to the Council's system of looking after these pieces of land.
He had to slash the land and do some spraying. He also had to keep an eye out for things lying about such as rubbish and branches of trees that might have fallen down. He said that if the post had been on its side, he would have picked it up because he thought it would have been a danger. He therefore believed that the post had been pushed over some time after the last slashing. However, consistently with the evidence of the other witnesses, especially Mrs Nielson, it should be found that he is mistaken about that. The probabilities are that he had sprayed around the post and then avoided it when slashing the nearby grass which was unaffected by the spray.
What I have said about Mr Hardman's job illustrates the practical way in which the Council officers accepted that they had to do some work to keep these lands in order. They knew that adults and children would go on the land from time to time to walk on it, to play on it, to drive cars on it and it seems, at times, to ride horses.
It was not denied that the Council owed a general duty of care under the common law to take reasonable care to prevent a foreseeable risk of injury to those using the land. That would be consistent with the Council's ownership of Lot 59, and its control of its own land and the Crown lands.
It might be accepted that the occasional slashing and some attention by a worker such as Mr Hardman was an appropriate response to the use of this land. It was vacant land. There was nothing on it to particularly attract people or to invite them to come upon it. It was not a park.
The question here is whether or not the Council failed in the discharge of that duty and whether or not that failure was the cause of Mrs Kumar's injury.
Several other things might be noted. The photographs which are important here were those taken two or three days after the injury, that is, they were taken in mid-afternoon before the grass was slashed again and before the metal box and the fallen post were removed, as they were then were, by Council officers.
As the photographs show, the significant things are the position of the post, the condition of the grass, the state of the light or shadow at the time, the bareness or otherwise of the ground and the presence of the car tracks which showed where vehicles usually crossed the boundary. The Council had received no complaints about the condition of the blocks.
Mention was made of several recent decisions both in the High Court of Australia and in the Queensland Court of Appeal. Some were the recent “footpath” cases, of which mention needs to be made only of the decision in Spencer in the Queensland Court of Appeal - see Spencer v. The Council of the City of Maryborough (2002) QCA 250 (26 July 2002).
With regard to the common law, attention was paid to the decision of the High Court in Romeo v. Conservation Commission of the Northern Territory (1998) 72 ALJR 208. Both the footpath cases and Romeo's case (which also dealt with a reserve open to the public) stressed that the duty was to exercise reasonable care to prevent injury from dangers arising from footpaths or the condition of premises which were not apparent and not to be avoided by the exercise of reasonable care on the part of the entrant.
In this case, attention was paid to the question of whether or not the fallen post was such an obvious hazard that Mrs Kumar should have avoided it.
In reaching a conclusion about that, it should be kept in mind that even though pedestrians are obliged to keep a lookout for their own safety and should exercise such care as is appropriate to their surroundings, some degree of inadvertence may be expected on their part.
The clear fact here seems simply to be that Mrs Kumar was engrossed in conversation with her husband and did not see the post until she fell over it, hurting herself. It might also be kept in mind that it was their first trip across this land. They were not familiar with it.
Here, it is necessary to look at the exact circumstances when the accident happened. That is to say, the situation may have been different if, say, a child had been injured or if this injury had happened at night time. In my opinion, the position of the post and the degree of light at the time and the general condition of the land including the shortness of the grass shows that it was an obvious hazard that Mrs Kumar could have avoided if she had been keeping even some lookout to her front.
As a matter of causation, she was entirely responsible for what happened. There is no reason to find that the Council was negligent. It is true that Mr Hardman should have removed the post as the Council did soon after learning of this accident. However, there is no reason to find that negligence on the Council's part was a cause of this injury. It was an accident, caused by her own lack of attention, which would have revealed an obvious hazard.
It is necessary to say something about her damages.
Mrs Kumar was 27 years old at the time. She had two children, the youngest an infant at the time. She was 27 years old.
There has been some medical evidence, not all consistent, as to the effects of this fall upon her. It should be accepted that after the fall she immediately felt back pain, which became more severe, and she was treated that evening at the Maryborough Hospital. She returned to the hospital several times over the next month or so and had some physiotherapy. The pain persisted.
Within a couple of days of the accident, she had contacted the Council and demanded compensation. The Council officer suggested that she put her complaints in writing. That was done. See Exhibit 10. She complained about the pain then affecting her back, and perhaps at that time her ankle, even though that pain was short lived. She said that the Council, in effect, had neglected to remove the post. She asked the Council to take responsibility. She also threatened the Council with putting the matter in the newspaper. The Council did not respond.
Her general practitioner was Dr Partamen. She had already been seeing Mrs Kumar since 2001 and had been treating her for depression and anxiety. As her reports indicate, that emotional condition, and a later pregnancy which was terminated, were responsible for most of her visits. However, she did indeed complain to her and to her partner about her bad back. Dr Partamen did not link, in effect, the pain in the back substantially to her decision to have a termination of pregnancy for other reasons. She also thought there might have been some link between the termination and the depression which she was suffering. During the earlier consultations about the depression and the pregnancy (which resulted from conception in January 2002) there was at first no mention of the lower back pain, but she did mention that at a recent consultation on 7th May 2002. That is to say, there was not a great deal of mention of it between 22nd February and 7th May 2002.
On a later occasion she complained of pain, which was increased with vacuuming and doing other household duties, with lying down, standing and sitting. Her subjective complaints of pain became quite severe. Her husband was attentive to her needs and left work for a time to care for her. Her mother particularly spent time at her house because she could not attend properly to the children's needs or to her duties in the house.
Specialist opinions have been given by Dr Khursandi and Dr Steadman. Dr Khursandi thought that there was a jar near the lumbar sacral spine leading to muscular ligamentous injury. No doctor was able to see any physical signs of damage on the X-rays. Dr Khursandi thought that overall she had suffered a permanent impairment of five per cent of the total function of her spine or the body as a whole, and that would lead to her having some permanent disabilities.
Dr Steadman was not so confident as Dr Khursandi. Each saw her last a good number of months ago, in last October. Dr Steadman thought that her condition was not stable and stationary because of the relatively short time that had elapsed since the injury. He noted that not all of the signs found at examination were consistent with physical injuries. That is to say, as he put it, “She has signs of a significant non-physical contribution to pain.” He mentioned her difficult circumstances at home with the family and children, her lack of education and occupation, and the current situation with her husband being on a carer's pension to look after her. He thought they were difficulties that may jeopardise her recovery.
He did not support a conclusion such as Dr Khursandi did and was very cautious about the prognosis for the future. He thought, while there was certainly no need for surgery, that a weight loss programme, appropriate pain management strategies in the way of rehabilitation would assist her to understand her current circumstances. In short, though his words were guarded, he was more optimistic about her future, especially, I infer, after the conclusion of this litigation, than Dr Khursandi was.
Overall, in my opinion, the approach of Dr Steadman, which is a cautious and conservative one, should be accepted. It also takes into account, in a way, the other things were causing some difficulties in Mrs Kumar's life. She has had depression and at the time of this accident and since, she has been a good deal overweight. Hence his reference to the benefits of a weight loss programme.
In assessing the quantum of the damages, the above matters might be kept in mind, including the fact that she has only worked, in fact, for relatively short periods of her life. She worked as a kitchen hand for several periods about seven or eight years ago. She has had children to care for and the indications are that she finds that a difficult task. Her eldest child, who is eight, is presently living with the child's grandparents.
It should be accepted that she has had some real pain and suffering, particularly shortly after the accident, and that she has had some real disability which gave rise, in particular, to the need for others to care for her within the family from time to time. Her future, consistent with Dr Steadman's views, is really very much uncertain. It should be accepted that it is likely that she will suffer from some small permanent disability. She will have a reduced capacity to do things like housework and enjoy recreation. She used to enjoy horse riding, for example, before this accident.
It should not be found that she has suffered any economic loss up to trial. The demands of her family alone would make it very unlikely that she would have had employment up to the present time.
With regard to the future, her poor education and work skills indicate that she is not a good candidate to get a job. However, it should be accepted that there is some slight impairment to the capacity that she does have to earn income.
Her damages should be assessed this way: with respect to general damages, the amount of $15,000. Interest, in the usual way, should be added to that at two per cent for one and a-half years, which is $450. Her special damages are, in effect, agreed at $ 125, to which might be added interest of $10. With regard to future economic loss, in my view, though the matter is one of considerable doubt, a global sum might be $10,000, which she should be awarded. With regard to her need for care, in my opinion, that was needed at the time, as illustrated by her husband's and her mother's thoughtful efforts on her behalf. It should be accepted that her mother cared for her for at least two hours for a month or so and, at the agreed rate of $13.50 an hour, that is an amount of $750. The husband, in the early days, spent about 40 hours over the first few weeks caring for her. That would be $540. Later, over a much longer period of time, he spent less time each day, but nonetheless, it would amount to something like 146 hours, according to his evidence, which should be accepted. That would be $2,500. Those estimates are necessarily, of course, somewhat uncertain. Overall she should be allowed $3,800 for care and assistance to trial, together with interest on that sum of $240.
Because of her uncertain prognosis, a small nominal award should be given for the future. In my opinion $2,000 would be appropriate.
That is a total amount, subject to any correction about the arithmetic, of $31,625. They are the damages to which, in my opinion, she would be entitled to if she had succeeded on the question of liability.
Now, I notice that you have had time, gentlemen, as to whether or not that is accurate. I believe it is. I might leave that with you for a moment if you wish to check it.
I suppose there might be a question of costs?
MR MORGAN: I reach the same figure as your Honour indicated.
HIS HONOUR: All right. Well I checked it once so we're probably right. Mr Goodman, if you want to you can enter that.
MR GOODWIN: Your Honour, my instructor's not aware of any reserved costs, or any formal offers of settlement.
HIS HONOUR: I see. She's asked for costs in the usual way.
MR MORGAN: Your Honour, I just submit that costs follow the event.
HIS HONOUR: All right. Anything further to that, Mr Goodwin? Is it just straight forward?
MR GOODWIN: Yes.
HIS HONOUR: All right then.
MR GOODWIN: And I concur with your Honour's arithmetic.
HIS HONOUR: Thank you then. All right. The orders are therefore, these. I should say, gentlemen, when I get chance, I will correct the transcript of what I've said. I'm sure there's some details which are not well expressed and I'll clear them up. And I'll give you copies of the, my Associate will copies of the transcript when it's available.
MR MORGAN: Thank you, your Honour.
HIS HONOUR: The formal orders are:
Dismiss the plaintiff's claim against the defendant.
Order the plaintiff to pay the defendant's costs of the proceedings to be assessed on the standard basis.
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