DISTRICT COURT OF QUEENSLAND

1. [1]
   The plaintiff’s claim is for damages for personal injuries which she alleges were caused by the negligence of the defendant. At all material times the plaintiff was the lessee of Queensland Housing Commission (“QHC”) accommodation which she occupied with her adult mentally handicapped son.

2. [2]
   On 14 October 1998, QHC arranged for the construction of a concrete path at the rear of the said accommodation.  The path ran from the rear of the premises to the clothesline.

3. [3]
   On 9 December 2001 the plaintiff was standing on the path when her foot went over the side of the path.  She fell heavily, injuring her wrist.  The plaintiff was born on 2 May 1928 and was aged 73 at the time of the incident.

Complaints

4. [4]
   The plaintiff claims that after the path was constructed she noticed a drop of five to six inches to the ground on the left hand side of the path. She gave evidence that about one week after construction, she telephoned QHC to register concern about the path and to enquire when an inspector would look at it.

5. [5]
   In June 1999 the plaintiff commenced to keep a telephone log. She gave evidence that prior to that time she made two or three other telephone calls to QHC to register concern about the path. She referred to a diary note date 9 June 1999 which reads:  “Phoning re path to DOH no inspection all this time.”  She referred to a note in the telephone log on the same day which reads:  “9.6.99, 8.30 Department of Housing DOH re path.”

6. [6]
   On 1 November 1999 an officer of the QHC attended the premises and the plaintiff wrote a diary note which reads:  “Told them of rust under toilet bowl.  He said maintenance does that nothing to do with paths!!!”

7. [7]
   Ms Barnicoat, the defendant’s employee, gave evidence that a search was conducted of QHC’s files in relation to the plaintiff and the premises and that no complaints about the paths prior to the incident were located. She gave evidence of a system under which calls from tenants were registered. In response to such calls either a work order was raised and forwarded to Q-Build to get works completed or a requisition request was generated for an inspector to attend and inspect the problem. If necessary a work order would be generated.

8. [8]
   At QHC a response of maintenance call list in relation to the premises was generated and recorded that maintenance work was requested on 9 June 1999 in relation to a kitchen tap and a call in July 1999 in relation to a leaking toilet.  No calls or tenant requests in relation to the path were recorded until 2 January 2002.

9. [9]
   Ms Barnicoat located a functional location evaluation report relating to an inspection of the premises and path on 1 November 1999.  She said that according to the system if a defect had been noted at that time, the inspector would write on the back of the report any work required and a work order would be generated.  In this case no such work order was generated.

10. [10]
    Ms Barnicoat, however, did concede that at times one or two calls might not be logged, but she would expect that if there were a number of complaints about one issue there would be a record.

11. [11]
    I have had the opportunity to observe the plaintiff giving evidence. I found her evidence credible. The plaintiff knew how to register a complaint with QHC and did so in respect of a number of matters, such as plumbing. She took steps to avoid the risk of the path by placing pot plants along the left side. She had diary notes of some of her calls. She was naturally concerned for her son’s welfare. In those circumstances I accept her evidence that she sought rectification of the work and complained to QHC about the state of the path.

The state of the path

12. [12]
    Following the plaintiff’s fall she contacted QHC and on 14 January, Mr Morgan came to the premises and built up the level of the surrounding ground.

13. [13]
    After the work was completed by Mr Morgan, the plaintiff used a stick to measure the distance from the original ground level to the top of the path. The stick was marked with a pencil and then painted and showed a gap of five to six inches.

14. [14]
    Mr Morgan estimated that before he performed the work the gap was about 75 millimetres, tapering to 100 millimetres, however, he conceded that the gap could be as much as 100 millimetres to 125 millimetres.

15. [15]
    Mr Dougal, an engineer, recorded measurements on the side of the path between 100 millimetres and 125 millimetres.  He could not remember how he determined those figures, but assumed he dug down to measure.  He was able to say that he was not merely informed of the measurements by the plaintiff.  In light of that evidence I find the gap on the left side of the path was in the vicinity of 125 millimetres.

The incident

16. [16]
    The plaintiff gave evidence that on the day in question she went to take a towel off the clothesline. She said: “My foot just went over the side and I just fell heavily … I just misjudged it I guess.”

17. [17]
    It is submitted on behalf of the defendant that the plaintiff’s credibility is called into issue because her signed notice of claim asserts that she was hanging clothes on the line at the time rather than taking clothes off the line.

18. [18]
    It is true there is some difference in the accounts but I do not accept that the difference negates the plaintiff’s credibility. There is a possibility of confusion in the taking of instructions, the plaintiff is an elderly woman and, as I indicated earlier, I assessed her as a credible witness.

Duty of care

19. [19]
    The plaintiff brings her claim in negligence and/or breach of contract. The lease between the plaintiff and the defendant was entered into on 26 May 1998 and was one to which the Residential Tenancies Act 1994 applied.  The plaintiff submits that QHC contractual obligations to the client are set out in s 133 of the Residential Tenancies Act (“RTA”), which provides that:

“(133) While the tenancy continues the lessor –

1. (a)
   must maintain the premises in a way that the premises remains fit for a tenant to live in;  and

2. (b)
   must maintain the premises in good repair;  and

3. (c)
   must ensure any law dealing with issues about the health or safety of persons using or entering the premises is complied with;  and

4. (d)
   if the premises include a common area – must keep the area reasonably clean.”

20. [20]
    It is not appropriate to qualify the obligations in s 133(b) of the RTA by reference to the standard of reasonableness:  see McKinnon v Kirdy (unreported, Mullins J, 16 September 2003).  Further, QHC owed the plaintiff a common law duty of care as landlord which was summarised by Mullins J in McKinnon v Kirdy (supra) at paragraph [16] as follows:

“A landlord of residential premises has a duty to take reasonable care to avoid a foreseeable risk of injury to the tenant and members of the tenant’s household:  Jones v Bartlett (2000) 205 CLR 184-5 (per Gleeson CJ), 240-241 (per Kirby J).  In that case Gaudron J expressed the duty in terms of a duty to put and keep the premises in safe repair (at 193) and Gummow and Hayne JJ expressed the duty in terms that the premises be reasonably fit for the purpose for which they are let.”

21. [21]
    In any event it is agreed that the defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury, to put the premises in safe repair and to ensure that the premises be reasonably fit for habitation as a domestic residence.

22. [22]
    The plaintiff submits that the defendant:

1. (a)
   failed to carry out the original work with due care;

2. (b)
   ought to have known that the original work needed repair;

3. (c)
   was told by the plaintiff that the work needed rectification;  and

4. (d)
   ought to have ascertained the need for repair work on 1 November 1999 when an officer of the QHC attended the premises.

Did the state of the path carry a foreseeable risk of injury

23. [23]
    Mr Dougal referred to a number of standards to demonstrate that research shows that injuries are likely to occur if the foot comes down on an edge which is raised more than 20 millimetres.  Further, he stated that where a person is walking on a narrow pathway and with visual attention directed upwards, the likelihood of incorrectly placing the foot is increased.  He also pointed out that falls of elderly persons dramatically increase after aged 65.  I accept his evidence and find that the state of the path did carry a foreseeable risk of injury.

What is a reasonable response to the risk

24. [24]
    A reasonable response to the risk was to fill along the side of the path to level the area. As I have found the plaintiff had complained to QHC and asked for rectification. The rectification was done after the incident for a minimal expense of $90.

Contributory negligence

25. [25]
    The defendant submits that the plaintiff knew of the risk but failed to use the centre of the pathway and failed to care for her own safety, making the plaintiff responsible for the incident.

26. [26]
    The onus is on the defendant to establish contributory negligence. The plaintiff submits that mere inadvertence does not constitute contributory negligence and whether the plaintiff was contributively negligent depends on all the circumstances of the case. In this case the plaintiff was alert to the risk. On the other hand she was performing a mundane task. She was looking up and distracted. I am satisfied the accident was attributable to an error of judgment, but not such an error that can be described as negligence on her part.

Damages

27. [27]
    The plaintiff suffered a Collies type fracture with a vertical fracture to the joint space.

28. [28]
    She was examined by Dr White on 30 June 2002.  In his report, Dr White noted that the x-rays taken on 15 January 2002 showed a deformity of the dorsal aspect of the wrist.  He was of the opinion that the symptoms of pain were likely to increase with time.  Further, he expected degenerative change to the wrist in three to five years and assessed the plaintiff’s impairment at 20 percent whole upper limb.

29. [29]
    Dr Morris examined the plaintiff on 22 July 2003. He noticed she was suffering pain in the wrist, and that she had no strength in the left wrist. Flexion in her left hand was significantly less than in the right and she suffered a marked deformity which was cosmetically ugly.

30. [30]
    Dr Morris drew a distinction between impairment and disability and assessed the plaintiff as having a five percent impairment to her left arm based on loss of motion and not taking into account loss of strength, pain or cosmetic deformity.

31. [31]
    I am satisfied that these are all relevant features to be taken into account when assessing the plaintiff’s impairment or disability. For these reason I accept Dr White’s assessment as more realistic. It is true Dr White conceded he had not seen the plaintiff for about two years but the plaintiff said that her condition had not changed much in that time.

General damages

32. [32]
    Immediately after the accident the plaintiff was in severe pain. Her wrist was placed in a back slab for one week and plastered thereafter for six weeks. The injury essentially stabilised after about a year. Prior to the injury the plaintiff was in good health and active, caring for her house, her garden and her son. Now she is much less active and in continual pain.

33. [33]
    The plaintiff refers to the decision of Matheson v Mike O'Leary Design Ltd, a decision of Newton DCJ delivered 11 February 1998 and involving a 58 year old female who suffered a Collies fracture of her right wrist resulting in a nine percent loss of the upper extremity.  The decision is about six years old and involved a lesser impairment.  On the other hand the plaintiff there was significantly younger than the plaintiff here and might be expected to carry her injury for a longer time.  The defendant has provided comparable cases, but these are also relatively dated.  I have come to the opinion that an appropriate award for damages for pain and suffering and loss of amenities of life is $25,000.  Interest should be assessed on one half of the award to date at two percent for 2.8 years, that is $700.

Special damages

34. [34]
    The plaintiff is entitled to the special damages listed in Exhibit 16, except for the claim for gardening which was an expense she had prior to the incident and the cost of the dietary supplement as there is no medical evidence to support that claim.  I allow the sum of $752.05 together with interest at 2.7 percent for 2.8 years, that is $57.

Future special damages

35. [35]
    It is agreed that the plaintiff would be entitled to an amount of $294 for equipment recommended by Ms McCahon, an occupational therapist. She is also entitled to an amount for ongoing pain relief which she presently takes at the rate of one box per three weeks at a cost of $4.75 per box, or $1.58 per week. That amount of painkillers for 12 years on the five percent tables is $749 which I reduce for contingencies by 20 percent.  I do not allow the claim for the heat rub or dietary supplement as there is no medical evidence to support these claims.  I award the plaintiff the sum of $834.40 under this head.

Past Griffiths v Kerkemeyer

36. [36]
    The defendant submits that the plaintiff is not entitled to claim damages under this head as she has not satisfied the threshold requirements of s 54 of the Personal Injuries Proceedings Act 2002 (“PIPA”), which relevantly provided as follows:

“54 Damages for gratuitous services

(1) …

(2) Damages are not to be awarded for gratuitous services if the services are provided, or are to be provided –

1. (a)
   for less than six hours per week;  and

2. (b)
   for less than six months.”

37. [37]
    It is agreed that s 54 PIPA is the appropriate legislative provision in this case.  The plaintiff submits that both (a) and (b) must be met before a person is disentitled to claim damages.  I accept this submission.  The uncontested evidence is that the plaintiff required 35 hours per week assistance for the first three weeks, for 12.5 hours per week for the next six weeks and for four hours per week thereafter.  I find that the plaintiff is not disentitled under s 54 PIPA. 

38. [38]
    It is also submitted that the plaintiff is disentitled by the provisions of s 54(3) PIPA because the assistance given by the plaintiff’s son is of the same kind as before the injury.  The plaintiff’s evidence was clear that her son provided substantially more assistance after her injury and provided assistance in ways that he had not done before.  The plaintiff’s son has been slower at carrying out his tasks before of his disability, however, the plaintiff had no other assistance available and it is fair that the case should be calculated on the basis of the actual hours of assistance provided by her son.

39. [39]
    It is admitted that an appropriate award is at a rate of $16 per hour for care.

40. [40]
    The plaintiff is entitled to an award under this head as follows:

41. [41]
    Interest is allowed at 2.7 percent for 2.8 years a sum of $947.80.

Future Griffiths v Kerkemeyer

42. [42]
    The Australian Life Table suggests that the plaintiff has a further 12 years remaining.  Her wrist is likely to degenerate, resulting in the need for additional assistance but the assistance may involve a carer who works more efficiently than the plaintiff’s son.  A further reduction should be made for contingencies of life.  The calculation has not been one which is able to be assessed by a mathematical formula because of the contingencies mentioned.  Accordingly I make a global award under this head of $20,000.  The damages which have been assessed can be summarised as follows:

43. [43]
    I order that the defendant pay to the plaintiff the sum of $60,825.25.

44. [44]
    I order that the defendant pay the plaintiff costs to be assessed on an indemnity basis.