Pascoe v Coolum Resort Pty Ltd
[2005] QDC 39
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- Unreported Judgment
- Pascoe v Coolum Resort Pty Ltd[2005] QDC 39
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Pascoe v Coolum Resort Pty Ltd[2005] QDC 39
Pascoe v Coolum Resort Pty Ltd[2005] QDC 39
DISTRICT COURT OF QUEENSLAND
CITATION: | Pascoe v Coolum Resort Pty Ltd [2005] QDC 039 |
PARTIES: | DIANA URSULA PASCOE Plaintiff COOLUM RESORT PTY LTD Defendant |
FILE NO/S: | D79/2004 |
DIVISION: | Civil |
PROCEEDING: | Claim for damages for personal injuries |
ORIGINATING COURT: | District Court Maroochydore |
DELIVERED ON: | 4 March 2005 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 3 February 2005 |
JUDGE: | Samios DCJ |
ORDER: | Judgment for the plaintiff against the defendant for $132,602.68 |
CATCHWORDS: | Negligence – employment law - personal injuries – breach of statutory duty. Workplace Health and Safety Act 1995 section 28(1); Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 308-9; Hamilton v Nuroof W.A. Pty Ltd (1956) 96 CLR 18, 25; Schiliro v Peppercorn Childcare Centres Pty Ltd No. 2 (2001) 1 Qd R 518, 522); Vozza v Tooth & Co Ltd (1964) 112 CLR 316; Wyong Shire Council v Shirt (1979-80) 146 CLR 40 at 47. |
COUNSEL: | Mr Grant-Taylor SC for Plaintiff Mr McDougall for Defendant |
SOLICITORS: | Schultz Toomey O'Brien for Plaintiff McInnes Wilson for Defendant |
- [1]The plaintiff’s claim against the defendant is for damages for personal injuries, loss and damage caused by the negligence of the defendant, its servants or agents and/or breach of contract of employment by the defendant, its servants or agents and/or breach of statutory duty by the defendant, its servants or agents.
- [2]The plaintiff was born on 6 December 1966.
- [3]The defendant carries on the business of the Hyatt Regency Coolum at Warran Road, Yaroomba, Queensland (the resort). The defendant employed the plaintiff there as a housekeeper.
- [4]The plaintiff’s evidence was that at about 2:20pm on 30 January 2002 at the resort the plaintiff, with two other employees of the defendant, were putting a cleaning trolley away in the Lakes Lounge. Having put the trolley away the plaintiff and the two other employees of the defendant walked down a driveway and came to a point where the driveway met a roadway. The plaintiff said she looked to her left and she went to go around the corner when her ankle got into the edge and her ankle went down. The plaintiff said her knee caught the whole of the cement on the other side where the “big hole” was. The plaintiff fell down and completely lost feeling to her leg (the accident). The plaintiff described the hole as a deep hole 15 to 20cms deep and about 35 to 40cms in diameter. The hole was adjacent to the path.
- [5]The plaintiff claims the injuries she suffered in her fall included injuries to her left ankle, left foot, left hip and left knee. The plaintiff also claims to have suffered psychological consequences.
- [6]One of the two employees with whom the plaintiff was walking before she fell and suffered her injuries was Annette Louise De Roia. Ms De Roia recalled that on 30 January 2002, while she was working in the team with the plaintiff, the plaintiff fell over in a pothole. Ms De Roia turned around to see the plaintiff on the ground holding her knee. She thought the hole was about 30cms wide and possibly about 10 to 20cms in depth.
- [7]Gregory John Dorrington was called by the defendant. He is a landscape superintendent at the resort and has been with the resort since November 1988. His duties include the supervision and rostering of staff and the maintenance of standards around the resort in regard to the landscaped environment. He inspects the landscaped environment on a regular basis. He pays particular attention to the pathways and roadways of the resort as he must be particularly conscious of things that can constitute physical hazards. He said there were about 8½ kms of roadways around the resort and they vary from asphalt, concrete and brick paving.
- [8]He also gave evidence about the garden beds at the resort and the use of mulching. He said the gardens are mulched with an organic mulch in the garden proper and the perimeters of gardens, where they adjoin pathways, are mulched with a river stone mulch. These river stones vary in size from 1 to 3 inches. He knows the location where the plaintiff was indicating she fell.
- [9]He was asked if he was aware of a problem that developed from time to time with the golf carts that are used at the resort to ferry passengers to and from their villas, and their luggage and so on, cutting the corner. He said, “this corner in particular is more specifically trafficked by vehicles servicing the guest lounge. These vehicles were referred to as room attendant vehicles. They were not a golf buggy as such. They were a small Suzuki van with a different configuration. They were a road-going vehicle but a very small van with quite small dimensions. Not a great deal bigger than a golf buggy but they were used to move linen to and from the guest lounge which was used as a housekeeping and storage point. Most of the vehicle movements into this driveway were the house-men vehicles.” He said that the back wheel of these vehicles came off the actual made road and drove over the river stone. This is the reason why a river stone mulch was used adjacent to roadways because it was a lot more stable than pine bark or organic mulch. He said driving across the mulch caused no problems because the river stone was not compactable. Occasionally a vehicle would dislodge a few stones because of the way they drove in there. If they accelerated, being an inside wheel, they would flick stones out. On those occasions the stones would end up on the roadway and they are attended to by the gardener in the area. It was not than uncommon for the odd stone here and there to be dislodged, but generally the river stone was fairly stable. He said when they were displaced they would be swept back into where they came from and put back into place. He said if he saw the stones had been dislodged at that point it would be brought to the gardener’s attention and he would attend to it.
- [10]The defendant also called Jeffrey Aaron Mitchell. He is employed as a gardener at the resort and has been with the resort since 1988. In the year 2002 the area of his responsibility was called Lakes and Huntingdale. As part of his duties he kept a lookout for rocks on the road, rocks displaced by car tyres and depressions in the side of the road. If he sees a depression or rocks displaced by car tyres he kicks them back in with his foot or he uses a shovel, broom or rake to replace them.
- [11]He recalled attending the scene where the plaintiff fell. He said some rocks had been displaced, he would say by tyres, and there was a depression there. He described the depression as a couple of inches deep and about half a metre long which was the standard of a tyre depression at the resort. He thought it had been made by a tyre. He said that it happens a lot that vehicles pass over this spot going off the tarmac. He said he did not see a hole there up to 20cms deep and up to 35cms in diameter at this point on the day of the accident. He also said that it was part of his responsibility to carry out a visual inspection and to notice things as he moved around the resort.
- [12]The defendant also called Louise Josephine Beatson. Ms Beatson is employed by the defendant as a workplace health and safety officer and rehabilitation co-ordinator. She said the resort was an area of 150 hectares. She was aware of slips and trips on the resort. However, she was not aware of any at the place where the plaintiff fell.
- [13]I was favourably impressed by the plaintiff as she gave her evidence. The plaintiff’s evidence of a depression at the place where she fell was also supported by the evidence of Ms De Roia. That a depression can form where the plaintiff fell I consider was also supported by the evidence of Mr Dorrington and Mr Mitchell who were called by the defendant. Further, it was put to the plaintiff when she gave her evidence that she had not made any timely complaint that she was unable to wear shoes. However, the plaintiff called for, and the defendant produced, a report from Dr Parker dated 8 July 2002 in which it was noted that the plaintiff claimed to be unable to wear shoes. This was about five months after the plaintiff claims she fell at the resort. Although Ms De Roia’s evidence about the dimensions of the depression was not identical with the plaintiff’s evidence, I am not persuaded the difference detracts from the plaintiff’s evidence. Further, although Mr Mitchell said he did not notice a depression of the size claimed by the plaintiff I am not persuaded by his evidence to reject the plaintiff’s evidence. I accept the plaintiff’s evidence.
- [14]I am satisfied the defendant, its servants or agents knew or ought to have known that buggies and other vehicles would “cut the corner” at this location and other locations on the resort, and over time a depression would form when the river stone mulch was removed by the buggies and other vehicles. Further, at the time the plaintiff fell the depression at the location where she fell was of the dimensions deposed to by the plaintiff. Further, the defendant, its servants or agents knew or ought to have known that an employee engaged in his or her work at the resort could, while keeping a lookout for vehicles or engaged in conversation with other employees, trip and fall in the depression formed in the manner I have just described. Further, that the depression caused the plaintiff to fall as she placed her foot on the edge of the depression or into the depression, resulting in her personal injuries.
- [15]The duty owed by the defendant to the plaintiff, at common law and under the contract of employment, was to take reasonable care to avoid exposing the plaintiff to unnecessary risks of injury Hamilton v Nuroof W.A. Pty Ltd[1].
- [16]
“Furthermore, it has long been recognized that what is a reasonable standard of care for an employee’s safety is ‘not a low one’ … whether or not it will be found to have been satisfied is always a question of fact to be determined in light of the circumstances of each case … On the other hand, being a question of fact, it is undoubtedly true, as McHugh JA said, that what reasonable care requires will vary with the advent of new methods and machines and with changing ideas of justice and increasing concern with safety in the community. … in every case the tribunal of fact … must determine whether or not in the circumstances of the particular case the employer failed to take those precautions which an employer acting reasonably would be expected to take. What is considered to be reasonable in the circumstances of the case must be influenced by current community standards. Insofar as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer …”
- [17]
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the 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. It is only when these matters are balanced out that the tribunal of act can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
- [18]An employer is not required to safeguard employees completely from all perils. In Vozza v Tooth & Co Ltd[4] Windeyer J with whom McTiernan, Kitto, Taylor & Owen JJ agreed, said at 318:-
“The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. ‘the ruling principle is that an employer is bound to take reasonable care for the safety of his workman, and all other rules or formulas must be taken subject to this principle’. That statement made by Lord Keefe of Avonholm in Cavanah v Ulster Weaving Co Ltd [1960] AC 145 at 165 was repeated and approved by the House of Lords in Brown v Rolls Royce Limited [1960] 1 WLR 210.”
- [19]Section 28 of the Workplace Health and Safety Act 1995 provides:
“An employer has an obligation to ensure the workplace health and safety of the employer’s workers at work.”
- [20]This section imposes a civil liability on an employer who has failed to ensure the health and safety of his or her employees and thereby causes injury to the employee (Schiliro v Peppercorn Childcare Pty Ltd (No. 2))[5].
- [21]I am satisfied the defendant, its servants or agents knew or ought to have known buggies and other vehicles were cutting the corner and creating a depression which was a frequent occurrence and therefore creating a risk of injury to persons such as the plaintiff. This was not a far-fetched or fanciful risk but rather a real and therefore foreseeable risk.
- [22]I am satisfied the defendant, its servants or agents breached the duty of care owed to the plaintiff and breached the contract of employment between the plaintiff and the defendant and the statutory duty owed to the plaintiff by failing to place a concrete raised edge adjacent to the pathway to prevent vehicles including buggies from “cutting the corner” and creating a hole which could pose a risk of injury to users of the pathway or driveway. Further or in the alternative, by failing to extend the driveway or pathway to the garden bed to provide a permanent surface that would not form a depression when driven upon over time.
- [23]I am satisfied the plaintiff’s personal injuries, loss and damage were caused by the negligence of the defendant, its servants or agents and/or by the breach of the contract of employment by the defendant, its servants or agents and/or by the breach of the statutory duty by the defendant, its servants or agents.
- [24]However, I am satisfied the plaintiff failed to take reasonable care for her own safety by failing to keep a proper lookout.
- [25]In all the circumstances I apportion liability 80 per cent to the defendant and 20 per cent to the plaintiff.
- [26]The medical evidence shows that the plaintiff underwent an MRI on her left knee. Dr Lane, an orthopaedic surgeon, concluded that the plaintiff tore her lateral meniscus. Consequently the plaintiff underwent a left knee arthroscopy on 10 April 2002. Dr Lane recommended that the plaintiff continue with her exercise programme and see her physiotherapist to work on a marked strengthening programme. Notwithstanding the operation and the physiotherapy the plaintiff reported to Dr Lane in July 2002 that her pain was just as bad as it had been prior to the operation. When reviewed 5½ months following the operation the plaintiff reported to Dr Lane that she was still having problems with her left knee with persistent pain which would cause aching around her left anterior knee when she woke from sleep, and it was interfering with her ability to walk and do activities.
- [27]The plaintiff was examined by Dr White, an orthopaedic surgeon, on 2 June 2003. Dr White concluded that in view of the elapsed time since injury, the nature of her complaints and the radiological evidence he would, for all practical purposes, regard the plaintiff’s condition as stable and stationary and consider that she has suffered a 15 per cent whole left lower limb permanent impairment in the subject accident. He thought it was likely that she would remain permanently unfit for work involving heavy physical labour, prolonged standing, climbing, squatting or work on rough ground.
- [28]The plaintiff was seen by Dr Cantor, a consultant psychiatrist. In his report dated 2 July 2003 he concludes the plaintiff is suffering from a chronic pain disorder associated with medical and psychological factors (left knee injury), vulnerable personality traits and left knee injury with lesser left ankle and back injuries. He states it should be noted that it is possible that she might, in addition, have a major depressive disorder. However, on the balance of probabilities, he believes her reported mood problems can be sufficiently explained by her chronic pain disorder. He states her chronic pain disorder is having a substantial impact on her lifestyle. Further, at the time of his report, the plaintiff was fearful of losing her employment with the defendant which subsequently occurred. At the time of Dr Cantor’s report he thought that it would be helpful for the plaintiff to have some rehabilitation provider to allay her anxieties about being made redundant by her employer. He also believed a trial of treatment for chronic pain was warranted. Regarding any permanent disability, Dr Cantor thought it was too early to attribute any degree of permanent partial disability to her injury.
- [29]The plaintiff has also been examined by Dr Grant, a psychiatrist. He saw the plaintiff on 16 December 2003. He concluded that the range of symptoms described by the plaintiff would be consistent with an adjustment disorder with anxious and depressed mood. She described that as secondary to the insecurity and anxiety surrounding the reduced hours at work and uncertainty about her future. Dr Grant states, “If one accepts that her perception of a situation were the most important factor, it would be reasonable for her to feel anxious about her situation and to develop some symptomatology.” He states that the plaintiff appears to have responded quickly to the treatment by her general practitioner, and the symptoms of her adjustment disorder have now virtually resolved. On her current presentation Dr Grant thought the plaintiff would not be seen as suffering from any psychiatric disorder. In his opinion the plaintiff would currently be fit to return to work from the psychiatric point of view.
- [30]Dr Ganko, an orthopaedic surgeon, examined the plaintiff on 21 August 2003. He concluded the plaintiff was suffering a 4 per cent whole person impairment (10 per cent impairment of the left lower limb) as a result of the left knee injury. This takes into account the muscle wasting, partial lateral meniscectomy, and range of motion. He states in his report there was no demonstrable impairment due to her ankle injury or back.
- [31]When the plaintiff gave evidence she said she returned to work on 11 July 2002. The work she returned to do was cleaning key cards and did hours of it. Then she went into security which she “absolutely loved”. Regarding housekeeping, which was what she was doing before the accident, she said that she would not be able to go back to that work because she cannot kneel any more. She said that after doing the security-type work her employer was going to put her back into housekeeping. She got depressed about it because she knew she could not do it. She said she could not do it in her own home so she could not do it for someone else. She agreed with the description of what happened when it was proposed she go back to housekeeping. That is, she “lost the plot”. She was prescribed anti-depressants and started thinking about suicide. She has continued taking anti-depressants.
- [32]I am satisfied the plaintiff has suffered a 15 per cent permanent impairment of the left lower limb as a result of the accident. Further, that she has suffered a chronic pain disorder associated with medical and psychological factors (left knee injury) as opined by Dr Cantor. I also accept, having observed the plaintiff, Dr Cantor’s opinion that the plaintiff has a slightly childlike manner of speaking and at times engaged in dramatic exaggerations. Like Dr Cantor, I accept that she is a co-operative person and not overtly attempting to misrepresent the truth. I accept she is a person who can only tell the truth and would not tell a deliberate lie.
- [33]The plaintiff is now 38 years of age. For pain and suffering and loss of amenities of life I allow the plaintiff $35,000.
- [34]I allow the plaintiff interest at the rate of 2 per cent per annum on the sum of $15,000 for past pain and suffering and loss of amenities of life for 3.09 years which is a sum of $927.00.
- [35]I allow the plaintiff $26,100 for past economic loss. I have calculated this using the plaintiff’s tax returns showing her income from work as a housekeeper and cleaner for the years ended 30 June 2001 and 30 June 2002 averaged $261 per week. The plaintiff returned to work in July 2002 and ceased work with the defendant in about July 2003. I consider the plaintiff is well motivated to work and would have actively sought work in areas she had experience in if she ceased work with the defendant had the accident not happened. To date I allow the plaintiff economic loss over a period of 100 weeks.
- [36]I allow the plaintiff interest on past economic loss after deducting net WorkCover benefits of $4,653.51 for 3.09 years at the rate of 5 per cent per annum which is a sum of $718.96.
- [37]I allow the plaintiff loss of past superannuation at 9 per cent which is $2,349.
- [38]I allow interest on the past lost superannuation on $2,239 for 3.09 years at the rate of 2.7 per cent which is $195.97.
- [39]I consider the plaintiff has lost about half her earning capacity. I allow future economic loss in the sum of $72,384 calculated at a loss of $130 net per week discounted at 5 per cent per annum over 22 years, less 20 per cent discount for contingencies.
- [40]I allow the plaintiff for future Griffiths v Kerkemeyer damages the sum of $27,840 calculated at $50 per week discounted at 5 per cent over 22 years, less 20 per cent discount for contingencies.
- [41]For future medical (including psychiatric treatment), pharmaceutical, travelling expenses I allow $2,500.
- [42]For expenses paid by WorkCover Queensland I allow:-
- (a)hospital expenses $1,125.00;
- (b)medical expenses $7,910.74;
- (c)travelling expenses $52.
- [43]I allow for agreed out-of-pocket expenses as per the schedule $2,172.41.
- [44]I allow interest on other agreed out-of-pocket expenses at 5 per cent per annum on $1,420.86 over 3.09 years $219.52.
- [45]I also allow the plaintiff Fox v Wood component of $647.
- [46]That is a total of $180,141.60.
- [47]From that is to be deducted the refund to WorkCover of $14,388.25.
- [48]That leaves a figure of $165,753.35.
- [49]I give judgment for the plaintiff against the defendant for 80 per cent of the sum of $165,753.35 which is the sum of $132,602.68.
- [50]I will hear the parties on the question of costs.