Sims v Farquhar Corporation Pty Ltd & Page Furnishers Pty Ltd
[2006] QDC 301
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- Unreported Judgment
- Sims v Farquhar Corporation Pty Ltd & Page Furnishers Pty Ltd[2006] QDC 301
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Sims v Farquhar Corporation Pty Ltd & Page Furnishers Pty Ltd[2006] QDC 301
Sims v Farquhar Corporation Pty Ltd & Page Furnishers Pty Ltd[2006] QDC 301
DISTRICT COURT OF QUEENSLAND
CITATION: | Sims v Farquhar Corporation Pty Ltd & Page Furnishers Pty Ltd [2006] QDC 301 |
PARTIES: | Thelma Rose Sims (Plaintiff) v Farquhar Corporation Pty Ltd (First Defendant) & Page Furnishers Pty Ltd (Second Defendant) |
FILE NO/S: | 1520/04 |
DIVISION: | Civil |
PROCEEDING: | Hearing |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 25 August 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2-3 August 2006 |
JUDGE: | Forde DCJ |
ORDER: |
|
CATCHWORDS: | NEGLIGENCE – DUTY OF CARE – Occupier’s Liability – where plaintiff fell off stool at hotel – personal injuries – negligence and breach of contract alleged. Civil Liability Act 2003 (Qld), s 60 Ashfield Realty Pty Ltd trading as Ray White Ashfield v Gomes [2005] NSWCA 216 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Neindorf v Junkovic (2006) 222 ALR 631 Raelene Hetherington as Guardian v. Belyando Shire Council and Moranbah Hockey Association Inc. [2006] QCA 209 Spencer v The Council of the City of Maryborough [2002] QCA 250 Thompson v Woolworths (Qld) Pty Ltd (2004-2005) 221 CLR 234 Vairy v Wyong Shire Council [2005] 80 ALJR 1 Wyong Shire Council v Shirt (1980-1981) 146 CLR 40 |
COUNSEL: | Mr Curran for the Plaintiff Mr Atkinson for the First Defendant |
SOLICITORS: | Eaton Lawyers for the Plaintiff Barry & Nilssan for the First Defendant |
Introduction
- [1]On 6 November 2001, the plaintiff attended at the Caxton Hotel, Paddington with her daughter and friends for an outing on Melbourne Cup Day. She was 72 years of age at that time. The first defendant was the owner and operator of the Caxton Hotel. Whilst at the hotel, the plaintiff fell off a stool in the gaming room and suffered personal injuries. The second defendant was the manufacturer of the said stool.
- [2]On the second day of the trial, counsel for the second defendant announced that his client had settled the action with the plaintiff. The terms of the settlement were not disclosed to the court, but may become relevant if the plaintiff succeeds in her action against the first defendant. Both quantum and liability are in issue.
Issues for determination
- [3]Apart from the question of quantum, the main issues are:
- (a)Was the instability of the stool a material contributing factor to the plaintiff’s fall and subsequent injuries
- (b)Were the premises (including the stool) as safe for the purposes as reasonable care and skill could make them.[1]
- (c)Did the first defendant take reasonable care to avoid a foreseeable risk of injury. [2]
Circumstances surrounding the accident
- [4]The plaintiff is of short stature. She is 150 centimetres in height and weighed 51 kilograms. Persons of all ages and sizes are patrons of the hotel according to the manager Ms. Johnson.[3] Ms. Johnson stated that although a record book had been kept, no complaints had been made before or since about anyone falling off the stools provided.
- [5]The stools had a circular base about 450 mm in diameter and a stand about 50 mm in diameter. The footrest was about 400 mm in diameter. On top of the stand was a square seat with a backrest about 470 mm wide and a similar distance from back to front. The height of the seat from the floor was about 710 mm. The height of the footrest from the floor was about 330 mm. The seat could swivel and rotate 360 degrees. The stool weighed 25-30 kg. Exhibit 2 contains a photograph of the stool.[4]
- [6]On arrival at the hotel, the plaintiff had about one and a half glasses of champagne and a beer.[5] After the Melbourne Cup was run, the plaintiff and her friend Mrs. Griffin went to play the poker machines. After playing on one machine for awhile, the plaintiff moved to a second machine which had a higher stool. She put a foot on the footrest and eased herself onto the seat. She stayed there playing for five or ten minutes.[6] She was wearing high heel shoes. The heels were two to three inches in height. Then she gave the following evidence in chief:[7]
Right. Okay. Now, after you had played this machine for a period of time, what happened then? – Well, I wanted to get off it because I thought I would try another one and I thought I will get down off it because I was – it seemed to be very high. So I spun around to put my hands on the seat like this and tried to ease myself down. I put my right foot on to the—
So you moved your bottom forward as you’re holding the stool? – Yes.
I put my foot on and as I tried to ease my left foot on the ground to slide down like this, my right foot must have got caught, or something, and I couldn’t get away from it, so I leaned towards – to the chair and the chair just took me.
You said you leaned where? -- To the right.
Did your body move to the right? -- Yes, and next thing I’m on the ground with a pretty – and my shoulder was out and my right foot was twisted in the chair.
- [7]The plaintiff identified the stool and gave evidence that she had sat on a lower stool then the one she fell off. Ms. Johnson gave evidence that there were two stool heights, the difference being about 5 cm or two inches.[8] The plaintiff was a regular player of the poker machines at different clubs including the Arana Leagues Club and the Gaythorne RSL Club. She had never had trouble getting off stools at other venues. She believed that the stool that she fell of was higher than others she had experienced. In cross examination, the plaintiff gave this version:[9]
The problem you had when you got off this stool – and it is hard for you to remember exactly what happened, I understand, Mrs Sims, because you say that it happened so suddenly? – It did happen so quick. Very quick, but ----
Your recollection is that you decided to leave the stool to go and play another poler machine? – I decided to go because I wasn’t comfortable on it when I got on to the chair I realised how high the chair was and I wasn’t really comfortable on it and I wanted to get off. So then I decided to get down and that’s how I did it, I put my foot on to the bar there and was sliding down with this one and this foot must have got caught or clipped somehow and I couldn’t stop my fall, and I’ve had my hands on the thing like this and say I’ve moved my body, it did happen, my body could have moved and the chair has – hasn’t taken the weight of my body and I’ve just hit the ground and I come from pretty high when I hit the ground because I come on really with a thump and that’s all I remember.
You say – you started that sentence by saying, “My heel must have got caught.”? – My foot was – it was either my foot or my heel. When I put it onto the rim there it has got caught. I’m not sure. It happened really quick. But that’s what happened because my foot was twisted in it, in the rim. When I landed on the ground my foot was twisted in there.
You are easing your way off the chair and you certainly know that a short time later you’re on the floor? – Yeah.
And to some extent you’re speculating about what happened in between? –Well, it happened so quick, I just can’t tell you. But that was -----
Sorry, I understand, Mrs Sims, it’s five years ago. That’s not meant as a criticism, but you don’t have a clear recollection of the mechanics if you like, of how that accident occurred? – I have a clear recollection of my foot getting caught and me going. That’s all I can -----
Expert evidence
- [8]
To dismount from the stool, Ms Sims placed her hands on the seat pan (beside her thighs), slid her body forwards and to her right and started take eight on her right foot on the footrest. As she attempted to slide off the stool, it became unbalanced and tipped over and her right foot became entangled in the rim of the foot rest and she sustained injuries to her right ankle along with injuries to her right shoulder from the impact with the ground.
- [9]The subtle difference between the version given in evidence by the plaintiff and the sequence of events relied upon by Dr. Ludcke is that in the latter situation the stool is assumed to have become unbalanced in the first instance. That is not the sequence given by the plaintiff in evidence in chief. She stated that her foot got caught (or something) and she could not stop her fall. It becomes crucial to this case to determine whether the type of seat being larger than the base, contributed in a material way to the fall. In summary, Dr. Ludcke stated that as the seat was wider than the base, then it was unstable when a person is dismounting. That is, when the person/stool’s centre of gravity moves outside the base of support. There were no Australian Standards for swivel chairs of this type.[12]
- [10]The instability is more likely when a person of small stature is attempting to climb up onto the chair or to dismount as is depicted in Fig.4.[13] Figure 5 is an example of a more stable stool, which is unsuitable for the poker machine room. Dr. Ludcke states that if an audit of the hotel had been undertaken, the potential for instability should have been identified. He stated:[14]
It should have been recognised that the seat pad extended beyond the support base which is not considered good engineering design on the basis of stability. This, combined with the seat height requiring many persons to move to the edge of the seat pad and use the footrest during dismount, provides the opportunity for imparting destabilising forces. This is particularly important for persons of less than average height (Ms Sims at 150 cm) but also for older, less agile people who frequent such gaming and poker machine facilities.
Various alternatives are available. One would be to lower the height of poker machines to allow the use of a more conventional height chair. This has already been done in some areas of casinos to attune to the needs of the elderly, the disabled and those of shorter stature.
- [11]Dr. Ludcke made several suggestions in relation to providing a safer environment in the gaming room. This included lower poker machines and lower stools.[15] At the time of this accident in November 2001, there were no lower poker machines available. The console on which they sit are standard size under the gaming regulations.[16] In relation to the height of stools, it seems that the first defendant had some lower stools in the gaming room. They are shorter by about two inches.[17] The same stools have been there up to the present.
- [12]Other suggestions by Dr. Ludcke included a stool with a larger support base or a smaller seat. A larger support base would present its own problems. As shown in the photograph[18] a larger base might cause people to trip. The type of stool shown in Fig.5 would not be suitable for the gaming room as patrons require a back to the seat for more comfort. The other alternative of a step in front of the chair was not really pursued. It would have to be part of the base of the console on which the poker machine sits. These are standard and their dimensions regulated. This aspect was not really pursued by the plaintiff for that reason.
Evidence of Beverley Ann Griffin
- [13]Mrs. Griffin was in the group of friends who attended at the Caxton Hotel on Melbourne Cup day. She is a retired person. She was also playing the poker machines. Mrs. Griffin did not see the fall. After the incident she continued to play and she also fell off a stool. She described the stool as:
“very high and every, very heavy because I couldn’t shift the chair to – for me to sit down to play the pokies. I had to sit on the chair as it was and when I went to get down I slipped on the bottom of the chair, I think, that had the bottom, then it had the round ring ----”
- [14]Mrs. Griffin identified the stool from the report of Dr. Ludcke. After describing the base and footrest she stated:
“When you were getting off the stool, how did you get off it? --Well, I couldn’t reach the floor, so I put my foot on the steel bit.
The footrest?—Yeah.
And what happened then? That’s when I fell over.
And do you know how you came to fall over, why you came to fall over? -- No, I just think I lost my balance and fell over.”
- [15]In cross examination, Mrs. Griffin was adamant that the particular stool that she fell off was higher than others she had sat on. She denied that she used the footrest to dismount from the stools.[19] She is 5’4” tall. Having considered the evidence of Mrs. Griffin, I cannot be satisfied that the instability of the chair contributed to her fall. She says that she lost her balance and fell.
Evidence of first defendant’s witnesses
Ms. Ann Johnson
- [16]Ms. Johnson was and still is employed by the first defendant as its administration manager. She is also the gaming nominee.[20] In that capacity, she is responsible for anything relating to the gaming room and the machines. Ms. Johnson is also the Workplace Health and Safety Officer. As part of her duties, she carries out six monthly audits of the hotel. As part of her training in that role, she attended a five day course in 2000. There is an examination at the end of the course.[21]
- [17]The lighting in the gaming room was “mood lighting”. It was not bright. Ms. Johnson was responsible for purchasing the stools for the gaming room. She made inquiries of various suppliers and visited other gaming rooms including Jupiters. She is 5’ 5” tall. She chose the swivel stool as it makes it easier for people to get off the stool. It avoids people having to pull the stool out.[22] She practised getting on and off the stool to ensure that it was stable.
- [18]Initially, Ms. Johnson chose the type of stool which the plaintiff used and fell from. She visited various suppliers and established that most of the stools were of standard design.[23] On a second occasion, she chose a different supplier and purchased five extra stools. They were shorter than the subject stool by two inches.[24] They were scattered about the gaming room adjacent to different poker machines. The lower stools were in the gaming room at the Caxton Hotel at the material time. It seems that initially, the plaintiff may have used one on her visit to the gaming room.[25]
- [19]Ms. Johnson gave evidence that she visits the gaming room five days per week. She has not been concerned with the type of stool. The only problem is with young people rocking on the stools. Evidence was led from Ms. Johnson that she had a safety audit carried out. That audit was really concerned with slipping problems and its probative value in relation to the stools was of no weight. The report was marked for identification only.[26] The evidence of Ms. Johnson[27] supports that view. A perusal of the report does not reveal if the audit inspector even visited the gaming room. The reasons for not admitting the report have been given.[28]
- [20]In cross examination, Ms. Johnson gave evidence that she had seen persons as short as five foot getting on and off the stools. She said that they seemed to manage and used the footrail as a step.[29] Although there was a video of the gaming area, Ms. Johnson said that she did not see a need to keep a copy of it, as no other person had fallen off a stool.[30]
Mr Alan Graham Lamb
- [21]Mr. Lamb is employed by All Style Furniture. It supplied the subject stool to the first defendant in 2000. He stated that his firm continues to supply similar stools to the market. The subject stool was known as the “Nevada” model. Mr. Lamb confirmed that there was no Australian standard for swivel stools.[31] He stated that 75 cm. was a standard height for stools. Since 2000 console heights have come down and so have the stool heights. Mr. Lamb stated:[32]
Often you’d have a seat, wouldn’t you, that is within the – or no bigger than the base of the stool?-- Possibly, You know, they’re not a lot smaller in the bottom than the top, obviously you have a stability factor and that’s not in the case with this – with this stool as it is.
- [22]Mr. Lamb has referred to the fact that there was an alternative base for the Nevada stool. It was a five prong base.[33] It would have its own problems as persons would be more likely to trip over the prongs. It was never put to Mr. Lamb that it would be more stable. If Mr. Lamb being in the industry was not aware of any problems with the subject stool and instability, then it is difficult for the plaintiff to prove that the first defendant ought to have known. Moreover, it becomes problematic for the plaintiff to prove that the first defendant has failed in its duty.
Ms Helen Rose Reeve
- [23]Ms. Reeve was the solicitor for the plaintiff. She attended at the Gaythorne RSL Club and measured a stool on 31 July and 1 August 2006. Its height was 68 cm or some 10 cm or 4 inches lower than the subject stool. The seat pad was 43 cm by 43 cm. The subject chair was 46-47 cm. The base of the one at Gaythorne was 44 cm compared to 40 cm. Even if one assumes that that size stool was available in 2001, it still has to be proved that any instability was a material contributing factor to the plaintiff’s fall. Counsel for the plaintiff has argued that the first defendant could have replaced its stools with one similar to the one at the Gaythorne RSL.[34]
Legal Principles Applicable
- [24]In a similar case where a person slipped off a chair, the Court of Appeal in New South Wales held that the duty owed by the occupier was to take reasonable care to avoid a foreseeable risk of injury.[35] It was not its duty to ensure that the stool, for example, was safe to sit upon. Of course that principle had been applied in a different way in Wyong Shire Council v Shirt:[36]
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 fro a consideration of the magnitude of the risk and the degree of the probability of tis 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 fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.
- [25]That passage in its amended state was applied by the Court of Appeal in Queensland in Hetherington.[37] The question for determination in that case was what would a reasonable person, in the position of the occupier do by way of response to the risk.[38] It was accepted in that case that the risk of a small child catching his or her finger in a catch of a gate was not far fetched or fanciful, and hence was a relevantly foreseeable risk.
- [26]A further point to be considered is that the first defendant as occupier was “entitled to assume in considering any question of risk that pedestrians using its footpaths would themselves take ordinary care”.[39] The plaintiff in the present case got her heel caught in the footrest. The stool then toppled over. It could not be said that the plaintiff took ordinary care in the present case. Any risk which accompanied a person getting onto or off a chair in a carpeted gaming room, “was not one of grave or numerically significant proportions”.[40]
- [27]One further matter which requires mention is what the High Court said in Thompson v Woolworths (Qld) Pty Ltd:[41]
The obviousness of a risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response. In the case of some risks, reasonableness may require no response. There are, for instance, no risk-free dwelling houses. The community’s standards of reasonable behaviour do not require householders to eliminate all risks from their premises, or to place a notice at the front door warning entrants of all the dangers that await them if they fail to take care for their own safety. This is not a case about warnings. Even so, it may be noted that a conclusion, in a given case that a warning is either necessary of sufficient, itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care. The whole idea of warnings is that those who receive them will act carefully. There would be no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings.
- [28]The plaintiff’s alternative cause of action is for breach of contract. The duty owed in that situation it was submitted[42] was to have the premises as safe for the purpose as the exercise of reasonable skill and care can make it.[43] The court in Calin’s case was dealing with an entrant for reward. In that case a cinema patron sued for personal injuries when she slipped on a banana skin. The High Court held that in those circumstances an occupier impliedly warrants that the premises are safe for the purpose as the exercise of reasonable skill and care can make them. The present plaintiff was not in that category of entrant. Even if she were, on the view which is taken of the facts, it could not be said that the first defendant was in breach of that duty.
The Plaintiff’s Case
- [29]It was submitted that the following findings were open on the evidence:
- (a)That the stools in question located in the dark or darkened room of the gaming room in front of poker machines represents an open invitation to customers such as the plaintiff to use;
- (b)The use of those stools involves a risk of injury to the elderly, the frail, the disabled and the short. The plaintiff was elderly and short;
- (c)A reasonable hotel operator would not fail to address that risk of injury. (here the hotel operator has literally done nothing to address the risk);
- (d)The reasonable man’s response to the risk given the target customers involves a realisation that the risk is significant and its probability of occurring is high;
- (e)In fact a hotel operator acting reasonably having in mind the range of target customers would not have chosen the stools chosen by Ms Johnston and certainly would not have used her test of safety as the basis for choice;
- (f)Rather stools such as those used as Gaythorne RSL[44] would have been chosen on the basis that they are reasonable, suitable and safe for the entire target customer base.
- [30]The fact that the gaming room had “mood lighting” cannot be said to be a relevant factor as to what happened. There was no evidence to relate the nature of the lighting to how the accident occurred. The type of stool being used made it more difficult for a short person to get on and off. It does not follow that because the first defendant did nothing to address that risk as alleged then it is negligent. The following passage from Neindorf v Junkovic[45] illustrates the point:
Entrants may have differing capacities to observe and appreciate risks, and to take care for their own safety. An ordinary kitchen might be reasonable safe for an adult, and hazardous to a small child. The expression “reasonable response in the circumstances” raises a question of normative judgment which has to grapple with all the practical problems that the law had earlier attempted to solve in the manner described by Professor Fleming. The problems did not disappear. They now require consideration under a somewhat different rubric. The fundamental problem remains the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises. The problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant.
Findings
- (a)The plaintiff was in a category of person who was short in stature and elderly. That type of entrant was to be expected at the Caxton Hotel.
- (b)It has not been shown that there was a foreseeable risk amounting to negligence. Ms. Johnson, whose evidence I accept, had carried out extensive searches for an appropriate stool and tested them. The height of the stool was subject to the height of the console and the poker machines. Although Dr. Ludcke said that an audit would have shown that the subject stool was unstable, the magnitude of any such risk was small except for a limited class of persons.[46]
- (c)Assuming that there was a foreseeable risk, what was a reasonable response to the risk? It is open to find that the magnitude of the risk was slight. It is relevant to observe that there had been no prior accidents. The degree of probability of its occurring was therefore low. The expense involved would be to replace those stools. Those stools were distributed throughout Queensland to numerous clubs. Mr. Lamb, an experienced supplier, had no knowledge of any instability problems.
- (d)It was reasonable, I find, for the first defendant to make no response to any assumed risk. The stools had been purchased from a supplier who continues to supply that type of stool throughout the State. Even if a stool had been provided which was lower, it has not been shown that this would have avoided the accident.
- (e)The plaintiff got her heel caught in the footrest. Any instability of the stool, I find, has not been shown to be something of which the first defendant was aware. Mr. Lamb who worked for the supplier was not aware of any instability relating to that stool.
- (f)It has not been proved that a failure to replace the stool with a different stool has materially contributed to the fall. It is, I find, on the balance of probabilities more likely that the heel caught and the plaintiff leaned to the right causing the stool to overbalance.
- (g)It was submitted that the plaintiff would have been guided by a warning sign. As was discussed in Thompson’s case and referred to in Hetherington’s case,[47] reasonableness may require no response to a foreseeable risk and that occupiers do not ordinarily place notices at their front doors warning entrants of all dangers that await them if they fail to take reasonable care for their safety. In the present case, the plaintiff failed to take reasonable care.[48] Placing signs at the door warning short and/or elderly people was not required in the circumstances.
- [31]Given these findings, the plaintiff’s claim is dismissed.
Quantum of Damages
Nature of Injuries
- [32]The plaintiff suffered moderate to serious injuries as a result of her fall. She landed on her right shoulder and suffered an anterior dislocation of the right shoulder and a fracture of her right ankle. The shoulder dislocation was reduced under sedation. The plaintiff underwent an open reduction and internal fixation of the right ankle fracture under a general anaesthetic. On 12 November 2001, she suffered a repeat dislocation of her right shoulder whilst in the shower. Once again it was relocated under sedation. Her ankle was removed from a plaster on 21 December 2001. By 4 January 2002, she was walking with no aids. By 10 January 2002 following four physiotherapy sessions, she had full movement of her right shoulder without pain.
- [33]The plaintiff had been a patient of Dr. Gundelach for many years. He saw her in relation to her injuries on 1 February 2002. She was limping favouring her right ankle. He prescribed anti inflammatory medication for the swelling. He was informed later that the internal plate in her ankle would be removed by June. Her shoulder was still painful with pain increasing with the abduction of the right arm.[49] He described her as an active and very fit person before the accident.[50] He was of the opinion that as a result of the fall, she would require home assistance which would not have been required for many years but for the accident.
- [34]In oral evidence, Dr.Gundelach expressed the view that the accident had caused the plaintiff to suffer mentally and physically. Her affect was flattened. She has continued on anti inflammatory/pain relief. Dr. Gundelach confirmed that the plaintiff had suffered from lower back pain before the accident but that this had not stopped her from walking for 45 minutes per day and performing her other tasks. She had retired as a cleaner at the age of 65. She had also contemplated having a left knee replacement. That problem had not prevented her walking daily, albeit with difficulty particularly bending and gardening.[51] She had also fell on occasions. Dr. Gundelach did not believe that was unusual for an elderly person.
- [35]Dr. Walters, an orthopaedic surgeon, examined the plaintiff on 27 June 2002. After referring to the history and the difficulties which the plaintiff had around the home, Dr. Walters provisionally assessed the permanent impairment of the right upper limb at 10%. He referred to the fact that the plaintiff’s daughter was helping her with household chores. She suffers symptoms when she has to load or outstretch the right arm. He saw the plaintiff again on 28 June 2004. He described pain which the plaintiff suffered in the lumbar region and also the buttocks and thighs. She had arthritis in her left knee. She had seen a Naturopath in relation to her shoulder. Dr. Walters assessed the residual impairment at 3% of the ankle. Although Dr. Walters refers to the left ankle,[52] his earlier report referred to the right ankle.[53] This was not an issue in the case. In relation to the shoulder, he assessed the impairment at 15% of the right upper limb. The assessment by Dr. Boys was 2% for the right lower limb and 10% for the right upper limb. The difference in the assessment is not significant. It is the effect upon the plaintiff in her day to day life which is of greater significance.
General Damages
- [36]The plaintiff was an active person prior to the accident. She enjoyed going to clubs to play the poker machines. She walked every day. She now walks but for a shorter time. She was an occasional gardener but was active in her household. She now requires ongoing help. The plaintiff suffered two painful injuries, and at her age these were major setbacks. She is a stoic person and I accept her evidence. However, there has to be some discounting because her other medical problems and the fact that she may have become less active in time. I assess the general damages at $25,000.00. 34. Interest is sought. The Civil Liability Act 2003 (Qld) came into effect on 9 April 2003. The Statement of Claim was filed on 29 April 2004. Section 60 of the Civil Liability Act prohibits awarding interest on general damages. Therefore, no interest is allowed. There was no explanation as to why the claim took so long to issue or when demand was made.
Griffiths v Kerkemeyer
- [37]In his written submissions, counsel for the plaintiff provided a convenient summary of the gratuitous services as follows:[54]
PERSON | PERIOD | HOURS OF GRATUITOUS SERVICES |
Julie Griffiths | 6.11.01 to 16.11.01 Plaintiff in hospital | Roughly 20 hours, including travelling time. |
16.11.01 to 30.11.01 Plaintiff at Julie’s home. Julie off work to look after her | Minimum 8 hours per day | |
30.11.01 to 21.12.01 Plaintiff at Julie’s home: Julie back at work. Julie’s fiancée helped with care. | 4-5 hours per day. Julie’s fiancée’s time extra and travel time | |
21.12.01 to when Lee Sims took over care. | Initially 4-41/2 hours per day Wednesday to Saturday and tapered off. (T97/25 onwards) | |
When Lee took over to now | 2 hours per week | |
Lee Sims | From February 2003 to June 2006 | Initially 2 ½ hours per day. Tapered to at least 2 hours per week (see Exhibit 15). In oral evidence, suggested 3-4 hours per week on average but heavy gardening mainly mowing was additional (1-2 hours per week). |
Since June 2006 | Mowing 1-2 hours per week | |
Maureen McKenzie/Dulcie McAuliffe | 6.11.01 to the present | 1 hour per week. Taking the plaintiff to and from shopping, pushing the trolley and carrying the shopping. |
- [38]It was substantially supported by the evidence of each of the witnesses. Bathing the plaintiff, providing assistance with shopping, cooking and cleaning were more demanding at first. Over time these tasks lessened. The agreed rate was $13.00 per hour. Where there was a range given, the lower figure has been selected. The total claimed is in the vicinity of $25,000.00. Counsel for the first defendant submitted that any such figure should be discounted to allow for the fact that family members would visit anyway and chat to the plaintiff. They would have travelled to see her in any event but perhaps not as often. Some of the tasks would have been done by others even if the accident had not occurred as the plaintiff became less robust. Taking all these matters into account, a figure of $15,000.00 for past gratuitous services seems to be reasonable.
- [39]In relation to future gratuitous services, an allowance of three hours per week for say 10 years seems to be reasonable. The assistance involved cleaning particularly above shoulder height, taking the plaintiff to the shops and doing the heavier household tasks. This figure recognises the present hours provided of around four hours but discounting same for the reasons expressed above. There is longevity in the family, but one has to place some weight on the average mortality age of women as well. Allowing a figure of $39.00 per week for say 10 years using the 5% tables[55] amounts to $15,000.00 approximately.
Special Damages
- [40]Exhibit 13 provides the details of the special damages. These seem reasonable and were not really challenged. A summary is as follows:
| Total of out of pocket expenses | |
| Medical Expenses | $758.00 |
| Chiropractic Consultations | 210.00 |
| Naturopath consultations | 165.00 |
| Medications | 928.20 |
| Travel Costs | 303.50 |
| Parking fees | 60.00 |
| Aids | 20.00 |
| Total | $2,444.70 |
- [41]It is accepted that the sum of $758.00 does not attract interest. This leaves a balance of $1686.70. The period over which the expenses were incurred is five and two third years. The percentage rate at present is 5.84%. Using a similar formula to that provided for in s 60 of the Civil Liability Act, the amount of the interest award is $279.00.[56]
| Summary of Quantum | |
| General Damages | $25,000.00 |
| Griffiths v Kerkemeyer | |
| Past | 15,000.00 |
| Future | 15,000.00 |
| Special Damages | 2,444.70 |
| Interest on Special Damages | 279.00 |
| Total | $57,723.70 |
Orders
- The plaintiff’s claim is dismissed.
- It is ordered that the plaintiff do pay the first defendant’s costs including reserved costs (if any) of and incidental to the action to be assessed.
Footnotes
[1]Breach of contract claim: Amended Statement of Claim para. 15A
[2] Negligence claim: Amended Statement of Claim para. 15; Ashfield Realty Pty Ltd trading as Ray White Ashfield v Gomes [2005] NSWCA 216 at [29].
[3] T.204.36-40.
[4] p 2 Fig. 1 and 2.
[5] T.20.40-50.
[6] T.21.10-50.
[7] T.41.18-60.
[8] T. 201.10.
[9] T.41.19-58.
[10] Exhibit 4.
[11] p.2.
[12] Exhibit 2 pp.3-4.
[13] Exhibit 2.
[14] Exhibit 2 p.9.
[15] Exhibit 2 p.9.
[16] Ms. Johnson T.202.20-25;202.50-203.10.
[17] Ms. Johnson T 201.8-10.
[18] Exhibit 2 p. 6, Fig.5.
[19] T.81.30-82.42;84.1-10.
[20] T.196.26-34.
[21] T.197.1-19.
[22] T198-200.60.
[23] T.198.20-36.
[24] T. 201.1-10.
[25] T.21.44-45.
[26] Exhibit B.
[27] T.206.46-48.
[28] T.223.20-60.
[29] T.218.12-22.
[30] T.212.34-36.
[31] T.217.43-45.
[32] T.219.1-10.
[33] T.221.3-7.
[34] Exhibit 14.
[35] Ashfield Realty Pty Ltd. op.cit.[29].
[36] (1980-1981) 146 CLR 40 at 47-48
[37] Raelene Hetherington as Guardian v. Belyando Shire Council and Moranbah Hockey Association Inc. [2006] QCA 209
[38] Ibid. p.4 [9].
[39] Spencer v The Council of the City of Maryborough [2002] QCA 250 at [32]
[40] Ibid.
[41] (2004-2005) 221 CLR 234 at 246-7 at [36].
[42] Written submissions on behalf of plaintiff which are marked Exhibit D. para.23. The submissions for the first defendant are marked “E”.
[43] Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 38 and 40)
[44] Exhibit 14.
[45] (2006) 222 ALR 631 at 633 per Gleeson C.J.
[46] Spencer’s case op.cit.[30]
[47] Op.cit [36] and [16] respectively.
[48] Spencer’s case op.cit. [32]; see also Vairy v Wyong Shire Council [2005] 80 ALJR 1 at [161] per Hayne J. and [214-217] per Callinan and Heydon JJ.
[49] Exhibit 8 p.1.
[50] Exhibit 9 p.1.
[51] T.154.50.
[52] Exhibit 7 p.2.
[53] Exhibit 6 p.1 referred to the right ankle.
[54] Exhibit D p.10.
[55] s 57 Civil Liability Act.
[56] Reserve Bank of Australia - 10 year Treasury Bond as at July 2006.