Rigby v James Wren Holdings Pty Ltd
[2004] QDC 207
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- Unreported Judgment
- Rigby v James Wren Holdings Pty Ltd[2004] QDC 207
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Rigby v James Wren Holdings Pty Ltd[2004] QDC 207
Rigby v James Wren Holdings Pty Ltd[2004] QDC 207
DISTRICT COURT OF QUEENSLAND
CITATION: | Rigby v James Wren Holdings Pty Ltd & Anor [2004] QDC 207 |
PARTIES: | CYNTHIA LORETTA RIGBY Plaintiff v JAMES WREN HOLDINGS PTY LTD First Defendant And J BLACKWOOD & SON LIMITED Second Defendant |
FILE NO/S: | 1752/99 |
DIVISION: | Civil Jurisdiction |
PROCEEDING: | Claim for personal injuries |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 13 July 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8,9,10,11 and 12 March 2004 |
JUDGE: | Rackemann DCJ |
ORDER: | Judgment for the defendants |
CATCHWORDS: | NEGLIGENCE – personal injury claim – plaintiff injured by fall down stairs at commercial premises – alleged that fall caused by unsecured mat in mat well at top of stairs – whether failure to secure mat a breach of a duty of care by landlord and/or tenant. DAMAGES – personal injury claim – where plaintiff suffered pre-existing degenerative condition – damages limited. Cases referred to: Wilkinson v. Law Courts Ltd [2001] NSWCA 196 Hopkins v WorkCover Queensland (2003) QSC 257 |
COUNSEL: | Mr R Peterson with Mr J Stevens for the plaintiff Mr D J Kelly for the first defendant Mr P Lane for the second defendant |
SOLICITORS: | Bushnells Lawyers for the plaintiff Gadens Lawyers for the first defendant Barry & Nilsson Lawyers for the second defendant |
- [1]The plaintiff claims damages for personal injuries suffered as a result of an incident which occurred on 17 June 1996 when she fell down a set of stairs at the front entrance of premises occupied by the second defendant as lessee and owned by the first defendant.
- [2]Both liability and quantum were in issue.
Liability
- [3]The stairs consist of seven steps of masonry construction with terracotta tiles. The stairs lead to a landing, of similar construction, immediately outside the front entrance. The landing features a yellow perforated synthetic mat of lightweight construction on supports within a brass edged mat well. The plaintiff claims to have tripped on the leading brass edge, causing the fall which resulted in her injuries.
- [4]On the day in question the plaintiff attended the site in the course of her employment with a supplier of the second defendant, in order to conduct product training. It was not the first time she had done so. Her evidence was that she arrived in the car park just after 4 o’clock in the afternoon, grabbed her bags out of the car, walked up the stairs, across the landing and into the premises to prepare for the training session. As she went through her material she realised that she had left brochures relating to new products in another bag in the back seat of her car and so proceeded to walk out the door and across the landing to descend the stairs to return to her car.
- [5]Her evidence was that, as she proceeded out of the door, she was wary of where she was placing her foot, relative to the mat, because she had previously observed it to be worn and buckled. Her intention was to place one foot on a reasonably level part of the mat and then to step on to the area between the leading edge and the top step. She claims that she put her left foot a short distance on to the mat and, as she went to place her right foot, it became stopped, as her momentum was travelling forwards, thereby causing her to fall. As a result of the incident her right shoe was damaged in that the heel had begun to break away from the body of the shoe. It appears, at the time, she was walking purposefully. The plaintiff described herself as a “strider”.
- [6]The plaintiff did not, at the time, observe her right foot to trip. Rather, her evidence was that she was watching the edge of the step on which she proposed to place her right foot but felt it being caught short. Her conclusion was that her foot had become caught on the edge of the mat well, as there was nothing else she could see which would have caught her foot.
- [7]While there is no doubt that the plaintiff suffered injury as a result of falling down the stairs, that does not, of itself, establish liability, even if the fall resulted from a trip.
- [8]Particulars provided on behalf of the plaintiff in December 1999 alleged that her heel caught on the mat and/or edging of the brass mat well; that the mat was not completely within the well at the relevant time; that the mat was not compatible in size with the mat well; that the edging of the mat well created an unusual danger for the plaintiff and that the brass edging was raised and uneven. By way of an amended statement of claim, the plaintiff deleted a particular of alleged negligence being the failure to provide hand rails. The case was conducted for the plaintiff on the basis that her heel caught on the edging of the brass mat well.
- [9]The contention that the trip was caused by the brass edge was investigated by consultant engineers, namely Mr McDonald, who was called by the plaintiff and Dr Grigg, who was called by the defendant. At the time of their inspections, in April 2002 and January 2003 respectively, the mat was in a reasonable state of repair and substantially flush with the top of the brass edge of the matt well, such that there was no exposed lip. There was no evidence of the mat well or the brass edging having been altered since the incident. Mr McDonald accepted that, so long as the mat was in position and structurally sound, there was no lip which would have caused a trip and the edging did not create an unusual danger or a tripping hazard.
- [10]The plaintiff’s case however, was that, on the day in question, the mat was “worn and buckled” and not sitting flush within the mat well. While there was a suggestion by the plaintiff (which was also recorded in Mr McDonald’s supplementary report), that the mat had been replaced following the subject incident, I do not accept that. On the whole of the evidence it is likely that the mat which was in place at the time of the plaintiff’s incident was the same mat which was subsequently photographed in 1999 and inspected by the engineers in 2002 and 2003 respectively. I do not accept that the mat was changed or that, on the day of the incident, the mat was worn or damaged to any greater extent than observed at the subsequent inspections by the engineers.
- [11]As to the mat’s propensity to dislodge, the plaintiff’s evidence was that on each of the prior occasions that had been to the premises (which included traversing the mat on approximately 40 occasions) the mat had been out of position. Indeed, she expressed surprise at having found the mat sitting in position within the mat well when she attended the premises in 1999. Her evidence was that, on the day in question,
“It was lifted up. It was sort of twisted over … in a wobble sort of thing. It was jammed on one side, slightly twisted, and not straight. It was something that I was just normally used to seeing not sit flat … bits of it were out” (of the mat well) “and half of it was in a skew- whiff on an angle.”
- [12]In order to establish that this situation had been allowed to occur over a period of time, the plaintiff called a former employee, Mrs Euston. Mrs Euston’s evidence in chief, which had been reduced to writing, was that, during her employment, from 1990 to 1995, the mat would be moved from its intended location on a regular basis due to customers taking wheelbarrows and general heavy equipment through the front door and over the mat. Although the back entry to the building would be used to take in freight, her evidence was that contractors and sales people used the front stairs and that, quite often, workmen and/or contractors would catch their boots on the mat and it would lift out of its place and sit up and remain that way until someone saw it and put it back in place. She regarded it a hazard to customers and staff and recalls tripping on it herself before learning to avoid the mat. She claimed to have reported the matter to one of the managers of the second respondent although she could not remember who.
- [13]Mrs Euston is a person who has a friendship with the plaintiff and whose employment with the second defendant was terminated by dismissal. In cross examination it emerged that she had never personally seen the mat being dislodged. Indeed, she worked at a desk with her back to the front door. The most she could say was that, at times, when she walked out the front door she saw that the mat had been dislodged and that from time to time people reported things to her. Her own incident with the mat was not the subject of any formal complaint and occurred when the heel of her stiletto shoes became caught in one of the holes in the body of the mat. On no occasion did she suffer a trip nor did she personally observe any staff member tripping on the mat during her time there.
- [14]I did not find Mrs Euston to be an impressive witness.
- [15]The defendants on the other hand, called evidence to the effect that the mat had not been known or observed to become dislodged from the mat well either prior to the incident or subsequently and that heavy equipment was generally transported through the rear loading area. In this regard, there was evidence from Mr Beer who was formerly employed by the second defendant as the branch manager at the time of the subject incident, Mr Murphy, who is now a police officer but who was formerly employed by the second defendant as its quality assurance officer at the time of the incident, Mr Minney, a current employee of the second defendant who worked at the subject premises prior to the incident in question, Mr Wren who is now deceased but who was the managing director of the first defendant and whose statement was admitted into evidence and Mr Ryan, who cleaned the subject premises for six or seven years from 1998. I prefer their evidence in these matters where it conflicts with that of the plaintiff or Mrs Euston.
- [16]I am satisfied, on the balance of probabilities, that the mat generally stayed within in the mat well and, in particular, was not known or observed to become accidentally dislodged.
- [17]The risk that the mat would become accidentally dislodged was also the subject of expert evidence. Although there was an acceptance by Dr Grigg that dislodgement was possible if some heavy equipment, for example the use of heavily loaded trolleys with metal wheels was moved over it, the evidence from the witnesses for whom I have expressed a preference, particularly Mr Beer, was that such equipment was generally moved through the rear entrance and that, when moved through the front entrance, it was done by means of carrying except for wheelbarrows with pneumatic tyres. As Dr Grigg pointed out, the noses of the treads of the steps show no evidence of damage of the type which one might expect if a heavy steel wheeled trolley or the like had been wheeled up or down.
- [18]As to the propensity of the mat to become dislodged under more usual conditions, there was disagreement between the engineers. Dr Grigg saw no reason why the mat would spring out of the mat well as a result of someone walking over it and could not see the need for it to be further secured. Mr McDonald’s evidence was that, given its light weight and flexibility, it would need to be thoroughly secured and well maintained to function satisfactorily. In this regard, I prefer the evidence of Dr Grigg, which is also consistent with the history of a lack of reported or observed instances of the mat becoming dislodged. Indeed I preferred the evidence of Dr Grigg generally to that of Mr McDonald.
- [19]I am satisfied that the mat was not prone to becoming accidentally dislodged under the conditions of its use and the defendants were not in a position where they knew, or ought to have been aware of a risk in that regard.
- [20]There was also conflicting evidence as to whether the mat had in fact come out of the mat well on the day in question so as to create a trip hazard by exposing the brass edge.
- [21]Following the incident, the second defendant’s former branch manager, Mr Beer and former quality assurance officer, Mr Murphy accompanied the plaintiff outside in order to assist her with retrieving things from her car and to inspect the area where the fall had occurred. While they were not specifically looking to see whether the mat was dislodged (the plaintiff having made no complaint to that effect at the time) both inspected the area and neither could see anything which might have caused the fall and, in particular, did not observe anything out of the ordinary about the mat. The plaintiff’s evidence was that she did not move the mat after her fall. It is likely that Mr Beer and Mr Murphy would have noticed had the mat been as the plaintiff described or otherwise out of the mat well sufficiently to have exposed the brass edge so as to create a trip hazard.
- [22]That the plaintiff’s shoe was broken is not determinative of the cause of the fall. While Dr Grigg questioned whether the force of the heel striking the brass edge would be sufficient to cause the observed damage, much depends on the structural strength of the shoe and the force of the stride. Given the plaintiff’s evidence as to how she walks, I accept that the physical damage to the shoe is not inconsistent with the plaintiff’s version of events. There are however, other possible scenarios which, the engineers accepted, could cause similar damage. They include mis-stepping over the edge of the top step or actions during a recovery attempt.
- [23]As has already been noted, the plaintiff did not see her heel getting caught on the edge of the mat well. Rather, she reached a conclusion that is what happened. Her evidence was that:
“Being that there was nothing else on the stairs, there was only the top of the thing, there was only the mat, there was only the mat well, there was nothing else on the stair that I could have caught it on. Yes, I think that’s what my conclusion is.”
Her evidence was that she had observed the mat, earlier in the day, to be worn and a bit cracked. When asked specifically whether it was outside of the mat well itself, she replied “Bits of it were out and half of it was in and skew-whiffed on an angle”. Subsequently asked by counsel for the first respondent whether she had noticed the mat dislodged out of the mat well she replied “Yes, I suppose so. It was in its normal out of position position.”
- [24]Notwithstanding some evidence from Dr Grigg to the contrary, I would accept that a significant dislodgment of the mat could cause a person to trip.
- [25]The plaintiff’s evidence was that, after her fall, she adjusted herself and scanned to see what it was that she had tripped on and “thought it’s got to have been the mat well” which she said had not changed and was in the same place as before the incident. Nevertheless she did not make complaint to those who subsequently attended upon her and neither Mr Beer nor Mr Murphy saw anything untoward about the mat or mat well on their subsequent inspection.
- [26]While it is possible that the plaintiff’s right foot was in the vicinity of the leading edge of the mat well when she fell[1] and while she might hold a genuine belief that the fall was caused by the mat well, it seems to me that belief might be affected by a degree of reconstruction and, on the whole of the evidence, I was left short of being positively persuaded, even on the balance of probabilities, that the fall occurred in the way contended for by the plaintiff.
- [27]Even had the fall been caused by the mat somehow becoming dislodged and exposing the brass edge on this occasion, I would not have been inclined to find for the plaintiff, given my earlier findings to the effect that the mat fitted within the mat well, was in a reasonable condition, that, when in place, it presented no tripping hazard and was not known, observed or likely to become dislodged in such a way as to become a tripping hazard. I do not consider that the defendant’s duty of care in those circumstances was breached by failing to physically secure the mat to the base of the mat well so as to render accidental displacement impossible. As counsel for the second defendant submitted, merely because one can identify a “failure” to make premises safer does not necessarily mean there was a breach of a duty of care. See Wilkinson v. Law Courts Ltd [2001] NSWCA 196 per Heydon JA at [32]. It follows that there will be judgment for the defendants, but I will undertake a precautionary assessment of damages.
Quantum
- [28]As a result of the fall, the plaintiff, who was born on 8 January 1957, suffered a disc prolapse and underwent a disectomy to remove it. She suffered a deal of pain as a consequence. The surgery was successful but that was not the end of her pain. In subsequent years she suffered from chronic pain which continues to this day. The details of her treatment and condition are set out more fully in the medical reports and were not the subject of any significant dispute. Although she endeavoured to continue with her employment, she found it necessary to cease work in 2000. I am satisfied that she would have continued work if she had been able. At this stage it is unlikely that her condition will improve or that she will be able to return to her previous employment.
- [29]The effects have been particularly distressing for the plaintiff, a confessed over-achiever, and she has suffered psychologically. She consulted Dr Sundin, consultant psychiatrist, with respect to her anxiety disorder. She was prescribed anti-depressant medication and was treated psychotherapeutically for her anxiety disorder. The plaintiff’s condition, in this regard, is related to her physical condition and is ongoing.
- [30]The plaintiff’s present physical and consequent psychological condition is not solely attributable to the subject incident. The plaintiff had, in 1991, suffered an earlier incident of back pain related to twisting to recover something from the back seat of her car. It is evident that, from at least that time, she had a degenerative condition in her lumbar spine which put her at a greater risk of developing a disc prolapse from any number of activities, including something as simple as twisting the wrong way while sleeping. As it happened, it was the subject incident which caused a prolapse which, although repaired, served to exacerbate the degenerative changes already present in her lumbar spine. That exacerbation could however, have otherwise occurred in the absence of the subject incident.
- [31]In seeking to minimise the effect of the pre-existing condition on the assessment of quantum, counsel for the plaintiff referred to the lack of certainty as to when the plaintiff’s condition might otherwise have become symptomatic. In this respect, Dr Hall, an orthopaedic surgeon, had expressed, in his report, the opinion that “without any aggravating factors, and if she were careful with her back she may well have been able to progress to a normal retiring age, especially if her working duties did not involve activities which would put stress through her lumbar spine”. As Dr Hall explained in evidence, the more stress and strain that is put on the spine, the more likely the degenerative process would accelerate.
- [32]Counsel for the plaintiff relied upon Hopkins v WorkCover Queensland (2003) QSC 257 which concerned a plaintiff whose pre-accident X-rays showed “very mild changes of lumbar spondylolysis” which had been asymptomatic prior to the relevant incident. It would appear that the medical evidence was unable to specify a period within which the pre-existing condition would otherwise have become symptomatic. The Court, whilst accepting that it was probable that the pre-existing condition would have interfered at some point, calculated changes for the impairment of future earning capacity on the basis of a continuing loss (discounted at 5%) to age 60 (rather than age 65).
- [33]There are however, differences between this case and Hopkins case.
- [34]In this case, the plaintiff’s pre-existing condition had become symptomatic prior to the incident in question, for which she had received chiropractic treatment. Notwithstanding this, the evidence was that the plaintiff, a “driven”, “overachiever” and “workaholic”, continued an active working and social life which put stress on her spine from time to time. Her work duties involved, amongst other things, lifting objects which placed some strain on her back. Her evidence was that, in this period, “I would find that if I did something silly as it – just lifting something too heavy I would aggravate it …”. She had an active social life including aquatic activities including skiing. In 1994 she suffered an episode of acute lower spinal pain following a bending manoeuvre when exercising at a gym. She was clearly a person who did not and was not likely to be sedentary.
- [35]Dr Toft, an orthopaedic surgeon engaged by the first defendant, expressed the view in his report dated 16 May 2003 that “I would have expected this lady to have reached her current status within five years or so of the operation date, if she had not suffered the subject incident”. Having been asked to accept that the plaintiff performed social activities which were aggravating factors and work activities which would stress her lumbar spine, Dr Hall accepted that the likelihood of the plaintiff being able to work to a normal retiring age was low and that, in all likelihood, she would have been in the same position some five years or a little more down the track, especially taking those matters into account.
- [36]In the circumstances, I accept that on the balance of probabilities, the plaintiff’s condition, both physical and psychological, would likely have been similar in approximately five years even if it had not been for the fall down the stairs which is the subject of these proceedings.
- [37]In light of that finding, the calculation of past economic loss should be limited to the period to 2001 and the plaintiff has no future economic loss. The calculation of general damages is also affected.
- [38]My precautionary assessment of quantum is as follows:
Pain and sufferingInterest (on $27,500 at 2% p.a. over 5 years)Past economic lossAt the time of ceasing work in March 2000, the Plaintiff had a net weekly wage of approximately $639.00. Irrespective of the accident, the Plaintiff would have been in the same situation which she presently occupies within approximately 5 years of the fall. The Plaintiff’s economic loss as a result of the accident, therefore, ended in or around late 2001. Her past economic loss, therefore, is as follows:
Interest (on say $35,000.00 at 5% p.a. over 2 years)Past special damages
InterestGratuitous care (including interest) – agreedPart loss of superannuation (8%)TOTAL | $27,500.00 | |
$2,750.00 | ||
$21,481.55$50,700.00$15,350.32$2,000.00$2,016.00 | $72,181.55$3,500.00$19,366.32$500.00$10,000.00$5,774.00$141,571.87 |
Footnotes
[1] On the expert evidence it is quite possible that her right foot would come down in that approximate position if her left foot had been placed only a short distance on to the mat