Murphy v Burnett Shire Council
[2006] QDC 20
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- Unreported Judgment
- Murphy v Burnett Shire Council[2006] QDC 20
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Murphy v Burnett Shire Council[2006] QDC 20
Murphy v Burnett Shire Council[2006] QDC 20
DISTRICT COURT OF QUEENSLAND
CITATION: | Murphy v Burnett Shire Council [2006] QDC 020 |
PARTIES: | LYNDA JANE MURPHY Appellant v COUNCIL OF THE SHIRE OF BURNETT Respondent |
FILE NO: | 62/2002 |
DIVISION: | |
PROCEEDING: | |
ORIGINATING COURT: | Bundaberg District Court |
DELIVERED ON: | 16 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 30 and 31 January 2006 |
JUDGE: | Skoien SJDC |
ORDER: | Judgment for plaintiff for $66,490 |
CATCHWORDS: | Personal injuries caused by depression in ground of camping ground; negligence of managerial staff; contributory negligence; quantum of damages |
COUNSEL: | Mr A Simpson for the plaintiff Mr R Morgan for the defendant |
SOLICITORS: | Messrs Baker O'Brien & Toll for the plaintiff Messrs HBM Lawyers for the respondent |
- [1]This is an action for damages for negligence, alternatively for breach of contract, giving rise to personal injuries. It concerns a fall suffered by the plaintiff at a Caravan Park and Camping Ground owned and operated by the Council at Burnett Heads on 26 June 2001. Both liability and the quantum of damages are in issue.
Liability - negligence
- [2]On the date in question the plaintiff was aged 47 and she is now aged 51. She lives in a de facto marital relationship with Mr Michael Power.
- [3]The plaintiff and Mr Power had stayed in the camping ground briefly in May 2001 and returned there on about 3 June 2001. They drove there in a car, towing a dinghy on a trailer and erected a tent in an area indicated to them by the manager of the park, Mr Simkins. They were charged, and paid, a fee to camp there.
- [4]Tendered by consent were two scale plans of the camp ground (ex. 2 and 4), a rough sketch plan which is not to scale (ex. 7) and photographs (ex. 5). The scale plans helpfully show the direction north, the location of numbered sites, an amenities block, and set out in a legend a number of measurements. Some of those measurements are said to be related to “incident site” or to “scene” but as there was no evidence how the creator of the legend identified those points and no evidence from any person of the precise place where the plaintiff fell, these measurements can be treated as approximately only. Similarly, the plans and the photographs bear a number of marking arrows, some of which can be understood but some of which are unexplained. The photographs depict some holes in the ground, the dimensions of which can be roughly assessed, but their positions cannot.
- [5]Precisely where the plaintiff and Mr Power camped is not clear. There were plaques set flat in the ground to indicate the numbers of the individual sites but at the time the relevant ones were weathered and indistinct. On this I prefer the evidence of the plaintiff and Mr Power and particularly of Mr Jarvis, who took over as manager from Mr Simkins a few days after the plaintiff’s fall, who said definitely that they needed repainting and that he attended to that himself. Mr Simkins’ evidence that he had re-painted them shortly before then cannot be accepted. It is possible that he painted some, but not in the relevant area. Had he done that I think that the plaintiff and Mr Power would have been sure of the site they camped on. Instead, they were unsure, saying that it was 35, 36, 37 or possibly 38. It probably does not matter greatly precisely which of those sites it was although the condition of the plaques may be symptomatic of the lack of attention to detail of Mr Simkins and his precursors.
- [6]Whichever site it was, I am satisfied that no formed or surfaced footpath ran in its vicinity to provide a delineated passage to the amenities block about 65 metres away. The closest such path, as careful examination of the tendered photographs, the sketch plan and the scale plans show, was a considerable distance away from any one of the possible camp sites occupied by the plaintiff. A roughly calculated estimate from the scale plan suggests that at its closest point it was about 20 metres away and that to reach it from the plaintiff’s site would have meant crossing a grassed lane and then an area large enough to contain a camping site (probably no. 21, 22 or 23). I doubt that the photographs accurately indicate the distance. I do not know what was the focal length of the lens used by the photographer, who was not called.
- [7]Nor do I know when those photographs were taken. However they were tendered by consent and were obviously meant to assist me to understand the general scene. Importantly it was not suggested by any witness that the grass covered ground which they depict was not illustrative of its condition on 26 June 2001.
- [8]Those photographs show, in the relevant area in the vicinity of sites 35-38, a level, grassed, closely mown area. While not of bowling green perfection it was to my mind an area on which one would walk confidently without the necessity of particularly careful consideration of the ground ahead.
- [9]At about 8.30pm or 9.00pm on 26 June 2001, the plaintiff and Mr Power retired to bed in their tent. The sun had by then, of course, fully set and it was dark. The meteorological certificate (ex. 3) suggests that there would have been little moonlight. The plaintiff felt the need to visit the lavatories in the amenities block so she got out of bed and set out to walk there. It had been her normal practice to use a torch on her frequent walks at night time over the past few weeks to and from the amenities block but she could not find the torch so she set off without it.
- [10]The plaintiff’s tent had been erected with its entry, that is its front, facing roughly west or away from the grassed lane between its site and sites 22, 23, 24 (and further away still, the formed road). To reach the formed road by the most direct route she would have had to walk to the east, that is along the side of her tent, towards its rear, then across the grassed lane and through a site (22, 23 or 24). To my mind that would hardly appeal to a reasonable pedestrian.
- [11]To begin with the direction of that walk would not really be towards the amenities block which lay almost due north of her site. Nor would the distance be minor. Importantly, the advantage of using the made up path would not be valuable. First, as the photographs show, the path was not strictly a pedestrian path. It was a roughly laid vehicular track of some form of crusher dust. It was visibly not smooth; in fact it seems to be less smooth, particularly near its borders, than the adjoining grassed area. Furthermore it only extends a short way towards the amenities block, leaving an equal or probably greater distance of natural grassland to be traversed. A pedestrian probably would not scientifically calculate these things but an ordinary person would automatically set off on the most convenient path towards the destination which, on the available evidence would be virtually a direct path to the north. At night that choice would not be influenced by the availability of a lit path (there was none), nor by the presence of intervening occupied camp sites because (with one exception) there were none in any relevant area.
- [12]The occupancy of relevance was a camper van immediately to the rear of the plaintiff’s tent. In fact its campers had taken it on themselves to tie an awning from their van to the plaintiff’s boat, on its trailer, at the rear of the plaintiff’s tent. This provided another reason why the plaintiff chose not to set off in an easterly direction to the crusher dust path.
- [13]Instead she walked along the rear wall of her tent towards the north until she reached its north-east corner and from there set off towards the amenities block. She walked only about two metres before she felt her left foot tread in a depression in the ground. She heard a cracking sound and felt pain in her foot, and she fell.
- [14]She estimated that she had traversed the ground in the general area of the place where she fell several times a day, including at night time. She said she had walked in the general area and never seen a hole, nor could she recall seeing holes in the ground on her way to or from the amenities block.
- [15]The next day she returned to the spot and saw a hole. She described it as slightly longer than 30 centimetres and 5-7 centimetres deep in the centre. She said it had grass “growing through it”. In cross-examination she said it looked “pretty even”. Through her were tendered two photographs of what she said was the hole (and I accept that it was) after it had been repaired by filling with sand a few days later. Vegetation within the filled area is visible. Mr Power described the hole more carefully. He said it was 2-4 metres from the tent, 300 millimetres in diameter and 8-10 centimetres deep:
“Perhaps give his Honour a description about the surrounding area of the hole?-- Nice grass, all grassy. Yep.
Now, what about inside the hole, was there anything you noticed about the hole?-- It was grassed up as well.
And where was the grass level of the hole?-- The same as that, the height as the normal grass.
Okay. Could you see the hole before it was shown to you?-- No.
Okay. All right?-- If you have a close look you might have been able to, but no, not just by glancing and notice there was a hole there.
Okay. Had you seen this hole before?-- No, I had not.
Had you seen other holes around the park before?-- No, I had not.
When you came to the park, did you pay a fee to stay there?-- Yes, we did.
Were you told anything about holes being in or around the park when you came to the park?-- No.
Were you told anything about crab holes?-- No.”
- [16]As the plaintiff said, the hole was filled in a couple of days later. Mr Jarvis, the successor to Mr Simkins as the camping ground manager, gave evidence to the same effect. He said he was shown a hole by the plaintiff, the surface of which he accepted was some 15 centimetres in diameter and the depth about 5 centimetres. He filled it using “about three shovelfuls of soil or about three-quarters of a bucket of soil”. He did not recall the hole having vegetation growing in it.
- [17]I accept that the hole did have vegetation growing within it and that the top of the vegetation was level with the natural ground. That would be consistent with having been cut by the ride-on mower which was regularly used. I accept that it was substantial in surface area (between 30 centimetres and 15 centimetres in diameter) and of a substantial depth (between 5 centimetres and 10 centimetres). Of the greatest assistance in assessing the size of the hole is that it took about three shovelfuls, or three-quarters of a bucket, of soil (or sand) to fill.
- [18]I was favourably impressed by the plaintiff and by Mr Power as witnesses. Neither seemed to me to be exaggerating; each was candid. I also formed a favourable impression of the evidence given by Mr Jarvis. The evidence given by Mr Simkins was not generally acceptable. As I have said his evidence of the repainting of the marking plaques was contradicted by Mr Jarvis whose evidence I preferred. I find the third person wording of Mr Simkin’s statement (ex. 18) to be curious and much of it seems to be designed to paint Mr Power in a bad light. Of more significance is the fact that I simply cannot believe that either Mr Power or the plaintiff attributed the accident in any way to tripping over a tent guy rope, as the statement records. If that was the case, then it must follow that each, particularly the plaintiff, is a liar, which I do not believe. It would be very curious if she said to Mr and Mrs Simpkins (the latter was not called, nor her absence explained) that she tripped on a guy rope when her initial statement at the Bundaberg Hospital, in triage, is recorded as “rolled ankle in hole” which is how she described the incident in evidence. According to Dr Steadman that is a classic way for an injury of the type she sustained to be caused. It is true, as Mr Morgan for the defendant emphasised, that a subsequent entry in the hospital notes records that she “tripped up”. I regard that as a neutral expression, not necessarily casting doubt on her having stepped in a hole. It could well be the wording chosen by the note taker. I have frequently in litigation encountered examples of hospital notes which I have found do not precisely quote the description of the accident given by the patient. In any event, I regard the first entry as more likely to be an accurate record. Furthermore the type of tent described by the plaintiff in evidence did not have guy ropes anywhere in the vicinity of the incident. She would not have given false evidence on this point unless she was determined to add lie upon lie, which I do not accept.
- [19]In my opinion, assisted by Dr Steadman’s description of the mechanism by which the injury can be sustained, she fell just as she put it when in triage and in her evidence. She rolled her ankle in the hole which she, Mr Power and Mr Jarvis described.
- [20]An important feature of the hole was the vegetation within it. Mr Jarvis did not recall vegetation, but the two photographs (ex 10) of the hole, as I accept it to be, show some. By then of course, it had been filled by some three shovelfuls of sand and commonsense would dictate that the vegetation, standing some 5 to 10 centimetres high, would have been partly, even largely, pushed flat by the added sand. But what is visible in the photos supports the evidence of the plaintiff and Mr Power that there was vegetation there which they described as extending up to the natural ground level, indeed perhaps a little higher. I am led to accept their evidence on this.
- [21]The short distance the plaintiff had walked from the back of the tent when she encountered the hole (only a few metres) is significant. The hole must have been within the confines of the site they were occupying, or only just beyond it. During the three weeks they had been there, they must have come and gone in all directions countless times and must have walked by the hole on many of such occasions. I accept their evidence that they had not seen it, the likely explanation being that it contained vegetation, mown flush or nearly flush with the surrounding grass, so that even in daylight it was disguised. What follows from that is that I think it most improbable that it would have been recognisable as a hole at night if a torch beam were shone on it.
- [22]So I find that even in daylight, the hole would probably not have been visible to anyone once the contained grass was up to ground level, unless they trod in it or, if mowing, the wheel of the tractor mower actually drove into it.
- [23]How the hole was formed initially can only be a matter of conjecture. It could have been a collapsed crab hole, as Mr Jarvis thought it could have been (although the apparent dimensions of crab holes shown in the photographs would seem to me to be unlikely to create a hole, when collapsed, large enough to need three shovelfuls of sand to fill). It could have been accidentally created by human intervention (e.g. a wheel spin) or actually been dug by some person for some purpose. Ultimately it does not seem to me to matter. The vital thing is that at some stage in the past the hole was created and at once must have been easily visible. And it would remain easily visible for a considerable time until the contained vegetation reached the stage it was at on 26 June 2001. During that period a reasonably careful manager or groundkeeper would have seen it.
- [24]Given that the hole was actually within, or immediately beside, a designated camp site, it would take only a moment’s thought to realise it posed a risk of personal injury. There was no system of lighting which would illuminate the hole at night. It could not be assumed that campers would floodlight the site; indeed the contrary could be assumed. It should be assumed that campers would wander about within the site, also entering and leaving it, at all hours of day and night and, being familiar with the flat, mown terrain would not always use a torch. It would be obvious to any reasonably thoughtful person that a camper could step in it. And that person, if engaged in the maintenance of the campground, ought to have observed, as time passed, that vegetation growing within the hole was making it increasingly hard to discern.
- [25]In the light of Mr Jarvis’s unfavourable description of the general upkeep of the camping ground when he took over management in early July 2001 it is reasonable to conclude that Mr Simkins did not pay the careful attention to it, particularly to each recently vacated camp site, which he said he did. He was the camp ground manager from Easter (which fell between 13 and 16 April 2001) until the end of June 2001, that is a little over 2½ months. I think it more probable than not that the hole was created within that period. He should have seen it and realised that it posed the risk of personal injury to campers. To remove that risk would have involved the simplest of actions. All he had to do was to fetch ¾ of a bucket of sand and fill the hole.
- [26]Indeed it really does not matter if the hole was created before Mr Simkins took up the management of the camp ground. The Council must have had, or should have had, a manager or curator at the relevant time who should have seen the hole and filled it.
- [27]In Hackshaw v Shaw (1984) 155 CLR 614 at 662-663 Deane J said:
“… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.”
This passage was adopted as the proper test by four Justices of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 162 at 479.
- [28]In Woods v Multi Sport Holdings Pty Ltd (2002) 76 A.L.J.R. 483 at 506 Hayne J said:
“137.Although conventionally described as a finding of fact, to make a finding that there has, or has not, been a failure to meet a standard of reasonable care requires the tribunal (be it the judge or a jury) to translate the relevant legal principle (that the defendant is obliged to take such care as the reasonable and prudent person would take in the circumstances) into what Fleming described as “a concrete standard applicable to the particular case”, and as a process which “involves not a determination of fact, but the formulation of a value judgment or norm”.
138.In undertaking the task the tribunal of fact must first consider whether the reasonable person would have foreseen that his or her conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. The risk is foreseeable if not far fetched or fanciful. The tribunal of fact must then decide what the reasonable person would do in response to that risk. This latter decision requires attention to various considerations, very important among these being the magnitude of the risk of injury, the probability of its occurrence, the expense, difficulty and inconvenience of alleviating action, and any other conflicting responsibilities the defendant may have. Some of these considerations (and there may be others presented by the facts of the particular case) pull in different directions. Taking them all into account requires the striking of a balance.”
and at 489 Gleeson CJ said:
“[41]Where it is claimed that reasonableness requires one person to provide protection, or warning, to another, the relationship between the parties, and the context in which they entered into that relationship, may be significant. The relationship of control that exists between an employer and an employee, or of wardship that exists between a school authority and a pupil, may have practical consequences, as to what it is reasonable to expect by way of protection or warning, different from those which flow from the relationship between the proprietor of a sporting facility and an adult who voluntarily uses the facility for recreational purposes. I say “may”, because it is ultimately a question of factual judgment, to be made in the light of all the circumstances of a particular case”
- [29]There was an obvious proximity of relationship between the plaintiff and the Council. She paid a sum of money (which was apparently at the generally charged commercial rate) to camp at the camp ground. A reasonable system of inspection would have revealed the presence of the hole. The risk of personal injury (not necessarily of the type actually sustained by the plaintiff) was not far fetched or fanciful, but real. A reasonable manager or curator would have responded to the risk by filing in the hole, a task which was not expensive, difficult or inconvenient. The Council by its servant failed to do this, and was therefore guilty of negligence which led directly to the plantiff suffering personal injury.
- [30]Was the plaintiff guilty of contributory negligence? The argument urged by Mr Morgan, for the Council, was based on her failure to use a torch to light her way. But as I have said, I do not accept that a torch beam would have revealed the hole. As I have recorded, both the plaintiff and Mr Morgan denied seeing any crab holes. If they had actual knowledge of their existence it could be argued that the plaintiff ought to have been especially careful where she put her feet and, being especially careful, ought to have seen the hole in daylight hours or even at night. But there was no satisfactory evidence that there was a crab hole, or were crab holes, in the vicinity of their camp site. Those depicted in photographs No 1, No 4 and No 6 (ex. 5) may or may not be in the area of their camp site. Furthermore, I do not know when they were taken. The others (photographs 14-20) appear to be in quite different areas. In those circumstances I do not find that she was guilty of contributory negligence.
Liability - contract
- [31]There is an alternative claim based on breach of contract. In Calin v The Greater Union Organisation Pty Ltd (1991) 173 CLR 33 the majority judgment, at 38, accepted that:
“if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier implicitly warrants that the premises are as safe for the purpose as reasonable skill and care can make them.”
- [32]Even assuming that test to differ from the test in negligence, in the circumstances applying in this action, I have no difficulty in finding that the conduct of the Council, through its servants, breached the implied warranty.
Quantum
- [33]The plaintiff sustained a fracture of the fifth metatarsal base of the left foot. She was taken the next day to the Bundaberg Base Hospital, x-rayed and her leg was placed in a plaster for 6 weeks. During this time she mobilised on crutches. She then had a second cast placed on her foot for a further 6 weeks. The fracture did not unite and an operation to insert a screw at the fracture site was performed in September 2001. She was again mobilised on crutches until Christmas time 2001.
- [34]The plaintiff suffered a good deal of pain from June 2001 until at least Christmas 2001. Initially her pain level was very severe but it gradually improved. She was given pain killers which she took regularly at first, but was able to reduce their consumption over time. Her lifestyle was changed entirely until Christmas 2001 during which time she was really able to do very little for herself requiring mobility. Her condition has improved since then but she still has pain that creates a need for her to be cautious and to take medication.
- [35]She has some touchiness on the side of the foot with some numbness. She describes this as a fizzy feeling, like an electric shock when she strains the region. She has difficulty with slopes and uneven ground and there is slight swelling of the affected area.
- [36]Dr Pentis, a specialist orthopaedic surgeon, examined the plaintiff in August 2002 and found she still had some touchiness in the region with some numbness and thought that there may be a necessity for the removal of the screws in the future. He reviewed her in January 2006 when she complained of some continuing problems, some pain in the foot, difficulty in walking (inability to run), difficulty with stairs or squatting, problems with rough or uneven ground. He assessed the disability at 7.5% of the leg which could rise to 10% if arthritis set in. He recommended removal of the screw, at a cost of $2,000 to $3,000, at which time the possibility of arthritic change could be confirmed or excluded.
- [37]Dr Steadman, an orthopaedic surgeon, examined the plaintiff in April 2003 and January 2006. Her complaints to him were similar to those she made to Dr Pentis. He also thought that the screw should be removed, indeed should have been some time ago. I do not criticise her for failing to have that operation. Having to bear the cost of it was a concern to her, a very reasonable concern in my opinion. Using the AMA Guide (5th Edition), Dr Steadman assessed a 2% foot impairment and was of the view that after the screw removal that should be virtually nil.
- [38]Dr Steadman’s evidence was that radiological reports show no arthritic changes and he would not expect any. On the other hand I accept Dr Pentis’ evidence that one cannot be sure of that until the operation occurs. I propose to assess damages on the basis of a small possibility of the development of arthritis which would be a slight rather than a substantial disability.
- [39]Dr Steadman’s assessment of a 2% impairment of the plaintiff’s foot function is based on the AMA Guide. Because of the date of the injury I am not bound to follow that guide and I see no reason why I should. Indeed I am persuaded by Dr Pentis’ account of his own disability to doubt, as he does, the accuracy of the Guide. I prefer to accept that after the initial six months of considerable incapacity her condition improved and that for the past four years, approximately, her disability has been about 7.5% of the left leg. This will improve greatly after the removal of the screw but there is, as I have said, the possibility that some relatively minor arthritic changes will develop. I assess under the head of pain and suffering and loss of amenities damages of $25,000 and allot $15,000 as the portion suffered to date. Interest on that at 2% per annum for 4.7 years is $1410.
- [40]The plaintiff had intended to obtain work packing tomatoes when she was injured. Although she had not actually been hired, on the evidence of the way the industry works and based on her commendable work ethic since her injuries stabilised I accept that she would have obtained the work and done it for the five months which she estimated. I accept that she would have earned at least $600 a week, after tax, for that period, that is, $12,000. I allow interest on that loss for 4.7 years at 5% per annum, that is $2,820.
- [41]Consistently since early 2002 she has been in steady seasonal employment in the fruit industry, latterly working with grapes in South Australia in which occupation she will continue. She has been able to do the work at the rate and for the hours she would have managed if uninjured, but at the cost of some pain, especially at the end of the day. She takes normal analgesic tablets because of this. So I do not assess a sum for economic loss between early 2002 and the present but have taken the pain and suffering when working into account under that head.
- [42]She is now aged 51 and is unsure how long she will work in future. If the screw removal should be completely successful her future working ability should not be curtailed at all. But I have found that there is a chance it could be. I propose to allow a global sum of $15,000 which is considerably less than a net income of, say $800 a week, for one season of about 8 months, which I accept she can and does earn. Were she younger, the sum would obviously be much greater.
- [43]I accept that when she was in plaster (that is for some six months) Mr Power had to do much of the domestic work which she normally did. It is quite unrealistic to proceed on a mathematically exact basis, but Mr Simpson of counsel’s submission of a total of 370 hours is not unreasonable and the parties agree that $15 per hour is reasonable. That calculates at $5,550 on which interest at 2% per annum for 4.7 years is $520. When she has the operation she will require further assistance which I would not have thought could exceed a couple of hours a day for 4 weeks (Dr Pentis’ estimate convalescence for 4-8 weeks), say $800.
- [44]I propose to allow $3,000 for the cost of the future operation and to cover such things as some travelling expenses and medication.
- [45]Mr Simpson’s submission for other special damages of $330, with interest of $60, was not challenged.
- [46]Damages are therefore:
(a)pain and suffering and loss of amenities$25,000
(b)interest thereon$1,410
(c)past lost income$12,000
(d)interest thereon$2,820
(e)future lost income$15,000
(f)past gratuitous assistance$5,550
(g)interest thereon$520
(h)future gratuitous assistance$800
(i)cost of surgery$3,000
(j)special damages, including interest$390
$66,490
Conclusion
- [47]There will be judgment for the plaintiff for $66,490.