DISTRICT COURT OF QUEENSLAND

1. [1]
   On 11 April 2002 the plaintiff was injured in the course of his employment when he fell on a footpath at Westgate Avenue, Springwood.  He and others had attended at that site to remove two trees.  He had driven a cherry picker, and a truck had been parked facing the incorrect way against the kerb nearby.  He had climbed into the cab of the truck to collect some safety gear, and as he climbed down from the cab he put his right foot on the step, grabbed the handle of the truck with his left hand and put his left foot on the ground, let go with his right hand and went to turn around.  However, he spun around and fell over.  As a result he suffered an injury.  The plaintiff claimed that he fell because when he stepped down from the truck his left foot went on to the corner of a piece of concrete which was largely buried in the ground.  The plaintiff said that prior to that time he had not realised that the concrete was there, not having noticed it as he was approaching the truck cab and climbing into the truck.  The plaintiff claims that his injuries were caused by the negligence of the defendant as occupier of the footpath at the relevant time.  Liability and quantum are both in issue.

Background – footpath

2. [2]
   The footpath at this point was adjacent to a vacant lot; there was a house on the lot next door, and apparently both blocks were owned together at some time. There was no paved footway in the footpath, and it did not have a developed lawn typical of suburban footpaths. Its appearance at the time of the accident^[1] is illustrated by some photographs in Exhibit 3.  These show grass which is somewhat longer and coarser than ordinary footpath grass, but not very long grass at this point.  The photographs show what looks like the corner of a concrete block (or part of a concrete block) most of which is submerged under the soil of the footpath, and the plaintiff said that this is what caused him to fall.  The grass in the part of the footpath where the concrete is looks to be about 100 millimetres long, but very uneven; closer to the fence, and further along the footpath on the other side of a driveway which appears to have been paved with bricks, the grass looks much longer.^[2]

3. [3]
   There was evidence from a number of neighbours that the footpath outside this block has been unkempt, overgrown and obstructed with rubble to some extent for some time. Mr Forfang lived at the house next to the vacant block, which is number 24, from May 1996 until after the time of the accident:  p 91.  He said that the footpath was generally overgrown, with debris (including cement blocks) in the grass:  p 91.  He said that he used to walk daily past the block, and that he did not recall ever seeing it mown or in a cleared state:  p 92.  He never fell on anything:  p 93.  His wife said that there were mounds of rubble overgrown with grass onto the footpath, coming from the property which was very overgrown, with what seemed like rocks and cement protruding:  p 94.  There were also smaller pieces in the grass:  p 97.  She said its condition did not change from the time she was there up until building works began.^[3]  She also said she walked there every day, walked on the footpath provided she walked close to the kerb.^[4]  At times the grass was really high.  Prior to the recent building works she had never noticed any clearing work on the footpath:  p 95.

4. [4]
   Their daughter, who also lived at the premises, was also called. Her recollection of the footpath was that dirt had been put there and there were rocks in it, and there was grass growing around it: p 100.  She did not recall it changing during the time she was there prior to some building work relatively recently.  There was what she described as rubble, bits of cement and rocks and things.  She said that she would regularly walk past it, and would walk on the street to avoid it:  p 101.  She never saw any clearing work being undertaken on the footpath.  When shown the photographs Exhibit 3, she said that by the time they were taken, some trees had been cleared from the block and the footpath was “probably” much better:  p 103.  In what way it was better was not explored.

5. [5]
   Mr Ducret lived across the road from 1989 to 2005:  p 105.  He said that for almost the entire time the footpath outside the vacant block was overgrown, at times one to two feet tall:  p 105.  Every now and again it would be cut, but that was very rare.  He did not know what was under the grass; he never went there or inspected it closely:  p 106.  He did recall at times seeing branches sticking out of it.  The photographs Exhibit 3 were taken after the block had been cleared up somewhat for sale:  p 108.  Despite the answer at line 20, which did not distinguish the block and the footpath, I think this evidence was really directed to the state of the block, and is consistent with that of Ms Forfang.  His wife also said that the footpath was generally overgrown with bricks and concrete in it; every now and then it was mowed or slashed by someone, but the concrete and bricks that were in it did not change:  p 109.  Again, there was an answer on p 114 about the photographs which, taken literally, is inconsistent with the other evidence and I reject it; I suspect the witness really had in mind the block rather than the footpath.

6. [6]
   There was evidence that the defendant was aware that there were problems with this location. Notices to clear lot 202 were issued by the council on 10 March 1997 and 23 February 1998:  Exhibit 13.^[5]  Presumably at that time, someone from the council came and had a look at the site, and was aware or ought to have been aware of the state of the footpath as well as the state of the vacant lot.  Presumably someone followed up the notices, or ought to have done so.  There was also evidence in Exhibit 20 that there had been inspections between December 2000 and July 2001.

7. [7]
   A council officer who had inspected the lot on four occasions in 2001 was called;^[6] in the course of his evidence he accepted that it was part of his duty to report dangers on the footpath:  p 176.  It does appear, however, that his inspections focused on the state of the lot rather than the state of the footpath and were concerned with whether the property was overgrown or had been moved:  p 168;^[7] p 173.  It does not appear that he in fact engaged in any careful examination of the footpath to detect hazards in it.  Indeed, the evidence at one point suggested that his inspection consisted of little more than driving past the lot and having a superficial look at it from his car:  p 172-3.  It appears that he was essentially concerned with the question of whether a further notice to clear should be issued rather than the question of whether the footpath presented any hazards to people using it.^[8]  Nevertheless, this does indicate that the defendant had notice that there was a particular problem at this section of the footpath.  The defendant knew the owner of the adjoining land was not maintaining this part of the footpath properly.  Insofar as there were hazards on the footpath here, it follows that they were matters of which it ought to have been aware.

8. [8]
   There was a further inspection on 9 April 2003, in connection with the arrangements to have the trees removed, which led to the presence of the plaintiff at the site:  p 190.  On this occasion, I expect that the inspection was essentially concerned with identifying the work to be done, and it does not appear that any particular attention was paid to the question of whether there were any hazards in the footpath at that time.  Nevertheless, to the extent that the footpath was obviously a problem, or obviously unsatisfactory, this was a further occasion when some officer of the defendant became aware of the state of the footpath, at least so far as that was visible :  p 193.^[9]

9. [9]
   There was no evidence as to how long the piece of concrete had been in the footpath, but I think it likely that it had been there for some time. The evidence of the neighbours was that no work had been carried out on the site which would be likely to produce any rubble for some years prior to the plaintiff’s accident, it is obvious from the photographs in Exhibit 3 that the areas has not been recently disturbed, and overall the evidence suggests that it is more likely than not that the piece of concrete was buried, to the extent that it was buried at the time of the accident, for some years prior to the accident.  Accordingly, I find that it was something which was there to be found if the footpath had been inspected with sufficient care from 1997 to the date of the accident.  It follows that in respect of all of the inspections that took place during that period on behalf of the defendant, either the inspection did not involve any attempt to identify something of this nature, or the inspection was insufficiently thorough to identify it, or the person who conducted the inspection did identify it but did not take any action as a result.

Events of 11 April 2002

10. [10]
    As at 11 April 2002 the plaintiff was employed by Vinton Tree Services: p 22.  An arrangement had been made with that business to remove two trees from the footpath, trees which were in fact outside no. 26, next to the vacant lot.  The plaintiff drove to the site in a cherry picker, which he parked near the trees; co‑worker Mr Smith drove a truck, towing a chipper, which was parked close to the cherry picker, with the back of the truck near to the trees, but the front facing away from the cherry picker, so that the truck was parked on its incorrect side:  p 22. 

11. [11]
    The plaintiff got out of the cherry picker and walked along the footpath beside the truck and the chipper to the driver’s side door, to get his safety gear and a drink of water out of the cabin of the truck: p 24.  He also passed a container of water to Mr Smith, who had a drink and passed it back, and he put it back in the vehicle.  He climbed backwards out of the truck with his hand on the seat and then on the door, his right foot on the step, held a handle with his left hand and put his left foot on to the ground, let go with his right hand, went to turn around, but spun around and fell over:  p 25.^[10]  He said this was the normal way that people climb down out of such trucks and there was no evidence to the contrary.  He said, “I probably got a quarter of the way around, my ankle laid over and I fell to the ground.”  He said that he was able to see that his foot had come in contact with a piece of grey concrete, the piece which was shown in the photograph in Exhibit 3.  He had not seen it before he fell:  p 26.^[11]  He had not been to the premises before.

12. [12]
    Mr Smith, who was working for that business as a foreman, also gave evidence:  p 83.  He confirmed that he had driven the truck, and that Mr Fuller had climbed into the truck to retrieve some items.  He saw the plaintiff step out of the truck down on to the ground, and he fell over or hit the ground.  He went up and found that the plaintiff was in pain.  He noticed a triangular shaped piece of old busted concrete on the ground in the long grass:  p 83.  It is not clear that he actually saw the plaintiff step on to the concrete; rather, the effect of his evidence was that he concluded that the plaintiff had fallen because he had stepped on to the concrete.  He confirmed that it was normal to climb down from the truck backwards.  He said the grass on the footpath was unkempt, and you could not see the concrete unless you looked for it; it was hidden amongst the grass.  He did not recall seeing other pieces of concrete in the area.  It is apparent that he had not noticed the concrete himself prior to the plaintiff’s fall, although he must have got out of the truck at about the same point, since he had driven the truck to the site and climbed out of it before the plaintiff climbed in.  That supports the conclusion that the concrete was not obvious.

13. [13]
    I should say something about credibility. As a general proposition, I accept the evidence of the plaintiff. I accept that his evidence was honest, although there were some limitations on his reliability simply because of his memory in respect of events that had happened some time ago. His answers during cross‑examination need to be treated with some care, because it became apparent at one point that he would sometimes say “yes” when a proposition was put, meaning that he understood what was being put to him, rather than that he actually agreed with it:  p 57.  I do not know that the reliability of the evidence of any of the other witnesses was particularly challenged; I have mentioned elsewhere one aspect of the evidence of the plaintiff’s wife which I do not accept.

Medical evidence

14. [14]
    The plaintiff was seen by a neurologist, Dr Todmann, on 9 December 2003 for the purposes of a report in relation to his motor vehicle accident:  Exhibit 12.  It referred also to the accident the subject of the present action, noting that x-rays showed an avulsion fraction of the tip of the left lateral malleolus.  It referred to continuing neck pain and stiffness extending to both shoulder girdles, increasing with neck movements in certain postures.  By the end of the workday the pain had been intense, associated with headaches.  There was intermittent pain in the left ankle and he wore an ankle support.  He noted pain with heavier domestic tasks such as mowing, or driving for longer than half an hour to an hour.  At that time, he thought the plaintiff was still working as a tree lopper.^[12]  On examination, he had restricted cervical spine movements and tenderness, and muscle spasm.  Dr Todmann thought that the neck symptoms had plateaued and would remain permanent,^[13] and were equivalent on the AMA guidelines to a 5 per cent whole person impairment.  He recommended alternative employment, preferably light sedentary work, although he expected difficulty in obtaining such work in the open market.

15. [15]
    The plaintiff was seen by Dr Fraser, an orthopaedic surgeon, on 2 February 2004 for the purposes of a report to the insurer in relation to the motor vehicle accident:  Exhibit 11.^[14]  It also recorded complaints of constant neck pain, associated with headaches, but no radiation (except to the left trapezius muscle) and no neurological symptoms.  It referred to the earlier ankle fracture which was said to be making it difficult for him to cope as a tree lopper.  He had neck pain after driving for more than 30 or 40 minutes, or on elevating his arms, but reported no limitation in domestic activities.  On examination the cervical spine was straight, not tender, and there was no muscle spasm.^[15]  There was restricted motion in all directions in the cervical spine,^[16] but a full range of motion in the shoulder girdles.  Dr Fraser diagnosed a strain of the supporting soft tissue structure of the cervical spine which produced no measurable impairment of bodily function, and something which did not adversely affect his capacity for work or working life,^[17] or require any assistance.  However, looking up or working with his arms raised could aggravate his symptoms:  p 143.

16. [16]
    I did not find Dr Fraser’s approach to the assessment of the effect on the plaintiff’s future employment helpful.  An analysis which determined whether there is an effect on employment prospects, or indeed anything else, simply on the basis of the degree of impairment under the AMA scales was in my opinion misconceived.

17. [17]
    The plaintiff was seen on 1 October 2003 by Dr Williams, an orthopaedic surgeon, for the purposes of a medical report:  Exhibit 9.  This appears to relate to both incidents.  Dr Williams reported complaints of ongoing pain particularly referable to the left ankle, which swelled with prolonged activity, making walking for any distance difficult.  The plaintiff was unable to wear a work boot and had particular difficulty with uneven ground.  He walked with a substantial limp.  The pain was always present, some times worse than others.  There was also neck pain, though this was said to be not as severe.  He undertakes a home exercises program for the ankle, and uses an ankle support where necessary; he takes Mersyndol and anti‑inflammatories, including Brufen, and uses Nurofen Gel.

18. [18]
    On examination there was normal upper limb power and sensation; movement in the cervical spine was measured by a digital inclinometer.^[18]  The left calf muscle was thicker than the right calf muscle, the left ankle joint was stiff, there were specified degrees of flexion identified, the subtalar joint was somewhat stiff, and the joint was particularly tender at the insertion of the lateral ligament complex on the distal fibula.  An MRI scan in July 2003 demonstrated left lateral ligament complex disruption but no intra-articular disruption.^[19] 

19. [19]
    Dr Williams diagnosed a severe lateral complex disruption to the left ankle, and musculo-ligamentus cervical spine injury; the prognosis was for ongoing pain and stiffness, particularly in respect of the left ankle joint.  There was a whole person permanent partial impairment of 6 per cent, all of which was said to relate to the fall on 11 April 2006.^[20]  He did not recommend surgical intervention and did not think physiotherapy or a brace would help at this stage:  p 76.  He thought that in the long term the plaintiff could not work as a tree lopper due to the continuing symptoms in the left ankle.  On the assumption that his symptoms were stable, he did not expect any improvement, and there was a high likelihood of arthritis developing at some stage:  p 75.

20. [20]
    The plaintiff was seen by a psychologist, Mr Stoker, in October 2003 for the purposes of a report:  Exhibit 10.  This referred to both accidents.  The plaintiff reported feeling upset, moody, depressed, agitated and frustrated because of his inability to work, and he did not know what he would do in the future.  There were some other psychological effects specific to the motor vehicle accident, flashbacks, avoidance of the accident site and sleep disturbance.  On testing he was found to have normal verbal and performance intelligence, and personality testing suggests a stable introverted personality.  A Beck Depression Inventory suggested moderate depression, which was said by the psychologist to be consistent with the clinical observations; there were also mild levels of anxiety detected on testing.

21. [21]
    The psychologist expressed the opinion that as a result of the accident at work the plaintiff had developed an adjustment disorder with depressed mood, and a pain disorder due to physical and psychological factors. He required psychological counselling to attenuate his reaction to the pain and his circumstances in life. He also thought that a pain management program would assist; this is a three-week outpatient course at a cost of $3,000. Mr Stoker thought that the anger, depression and anxiety were enhancing his pain through a process of somatisation.  The depression was likely to continue unless he could return to commercial employability.  He thought that the plaintiff had a permanent partial psychological disability attributable to this accident of the order of 10 per cent.  He thought there was a further permanent partial psychological disability attributable to the motor vehicle accident, as a result of mild post-traumatic stress disorder.

22. [22]
    The plaintiff had had previous injuries but of no lasting significance. At some point he had an injury to his left wrist: p.37. On 8 September 2000 he attended his general practitioner, Dr Sandhu, after some injury to an ankle:  p 153.  An x-ray detected no abnormality, and Dr Sandhu prescribed painkillers and rest, and gave him one week off work.  The x-ray report (Exhibit 14), which was with the doctor’s records, referred to an x-ray of the left foot and ankle; Dr Sandhu’s own notes of his consultation referred to the right ankle and foot:  Exhibit 15.  There were no further attendances in connection with this problem (p 154), so presumably whichever ankle was injured got better.  Dr Sandhu was unable to clarify this discrepancy.  In January 2003, he wrote to someone at WorkCover to the effect that there was no history of previous injury to the left ankle:  Exhibit 18.  It may be, however, that this was simply a perpetuation of the earlier error in the notes.

23. [23]
    There was a further argument based on a letter written in March 2004 by Dr Sandhu:  Exhibit 17.  This referred to “a fracture to his left ankle in the early 90s at work.”  Dr Sandhu conceded that the reference to the early 90s could be a mistake, and that the letter might in fact be referring to the subject accident:  p 154.  Reading the whole of the letter, in context I think it more likely that this was a reference to the subject accident, and that the dating of this to the early 90s was a mistake on the part of Dr Sandhu.  It was apparently sent to the plaintiff’s solicitors – note the “received” stamp on it and Exhibits 9 and 12 – so it would be expected to be about this injury.  It is consistent with the general pattern revealed in Dr Sandhu’s notes of attendances, which are Exhibits 15 and 16, and were gone through in some detail in cross‑examination.  The plaintiff denied such an injury in the 90’s: p.58.

24. [24]
    The onus is on the defendant to show that the plaintiff had a relevant pre‑existing problem with his left ankle before the relevant injury, and on the whole, the defendant has not discharged that onus.

25. [25]
    I accept the evidence of the psychologist, which was not disputed. Among the doctors called, I accept the evidence of the plaintiff’s general practitioner, so far as it went. Among the specialists, I preferred the evidence of Dr Williams, and accept that where there is a conflict between him and the other doctors.  As I have indicated elsewhere, I was not impressed by the approach of Dr Fraser, and he did not particularly investigate the ankle injury.  Dr Todman’s evidence as to the symptoms in the ankle was not consistent with the evidence of the plaintiff or what was reported to the other doctors, and his focus appeared to be more on the neck injury than the ankle injury.

Liability of the defendant as occupier

26. [26]
    The defendant admitted that it was the occupier of the footpath and that it owed the plaintiff a duty of care.^[21]  The duty was to take reasonable care to avoid a foreseeable risk of injury to persons using the footpath.^[22]  There are some recent decisions which throw some light on the content of this duty, and which indicate that it does not follow that a local authority is liable just because a person has suffered an injury because of the state of a footpath.  One limitation is that the duty does not extend to the removal of obvious hazards, such as uneven paving stones, tree roots or holes.^[23]  Those decisions are distinguishable, because in the present case the hazard posed by the lump of concrete was not an obvious one.  For practical purposes it was concealed by the grass, at least unless one was quite close to it or looking for it.  That was the effect of the evidence of the plaintiff and Mr Smith, there was no evidence to the contrary, and it is supported by the photographs in Exhibit 3 apart from those where grass had been cleared away by the plaintiff’s wife to make the lump of concrete more readily visible.^[24]  The defendant is not assisted by the cases dealing with obvious hazards.

27. [27]
    A further limitation appears to be that the local authority is liable only for hazards of which it knows or ought to have known. Although the point is perhaps not entirely clear on the authorities, for present purposes I am prepared to assume that the duty does not extend to a general obligation to examine all footpaths for which a local authority is responsible to locate hazards, or at least hazards which are not obvious.^[25]  Again, however, the defendant is not assisted by this limitation.  Although I accept that this particular hazards was not in fact known to the defendant, in my opinion the defendant ought to have been aware of it.  There was evidence which I accept that, for years prior to this incident, not only was the footpath overgrown, but also it had builders’ rubble, such as rocks and bricks and pieces of concrete, on it. 

28. [28]
    The defendant knew this particular location as a problem, and people had inspected with a view to considering whether to issue vegetation control orders. Such orders were at times issued, but it appears that the focus of these inspections was on whether the lot was sufficiently overgrown to justify such an order, not whether the footpath was hazardous to users. Indeed, it may be that a footpath covered in grass half a metre high would be less of a hazard simply because everyone would avoid it, so it might not matter very much what was under the grass. The footpath becomes a particular danger to users, in the nature of a trap, if the grass is short enough so that people are not actually deterred from using it, but long enough to conceal the presence of hazards which might cause them to fall.

29. [29]
    This was a matter mentioned in the joint judgment in Ghantous (supra) at [163]:

“Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v State of South Australia (1982) 56 ALJR 912), or the surrounding area (as in Buckle v Bayswater Road Board (1936) 57 CLR 259, where the hole was concealed by grass).  In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety.  These hazards will include dangers in the nature of a ‘trap’…”

30. [30]
    In Webb, the hazard was an open gap between a false kerb and a permanent kerb created when the false kerb was constructed.  The defendant was liable because it had created the hazard by works which could easily have been undertaken differently so as to avoid creating the hazard.  In Buckle, the plaintiff suffered an injury as a result of putting his foot in a hole which was caused by a break in a pipe drain, and which was concealed by a growth of grass.  It is not unusual for a person injured as a result of stepping into a hole, the presence of which is concealed by grass, to recover damages for that injury.

31. [31]
    In the present case, the hazard in the footpath was not a hole, but because of the length of the grass it was not an obvious hazard. That it was a hazard is clear enough. In Roman Catholic Bishop of Broome v Watson [2002] WASCA 7, a rock protruding one and a half inches above the surface of a pathway was described (at [36]) as “a significant hazard which was not an ordinary everyday risk which the [plaintiff] could have been expected to guard against.”  In that case, it does not appear that the presence of the rock was even concealed by grass.  That case was cited without disapproval by the Court of Appeal in Pascoe v Coolum Resort Pty Ltd [2005] QCA 354 at [25].  The employee of the defendant who conducted the inspection of the footpath on 9 April 2002 referred to in paragraph 6A of the second further amended defence of the defendant did not dissent from the description of this lump of concrete as a hazard, and said that if she had seen it, she would have arranged to have it removed, and that it could cause trouble for anyone who chose to walk along that point of the footpath:  p 193.  In fact, she did not see it on that occasion, because she did not on that occasion examine the footpath for hazards which might be concealed in the grass.  Indeed, it seems unlikely that she even got out of her car at the site.

32. [32]
    No doubt she did not do so because she made the same mistake that others, including the plaintiff, made in relation to this site, of treating it as being an ordinary footpath which was therefore as safe as an ordinary footpath might be expected to be. This is not the sort of hazard one would expect to find in a footpath.^[26]  Mr Smith said as much at p 87, and at p 88 that there was no indication that there might be a lump of concrete like that on the ground.  No other evidence of builders’ rubble is apparent in the photographs Exhibit 3, probably because other rubble was concealed by the grass, which is fairly long in places, particularly closer to the fence.

33. [33]
    There was, however, evidence from the neighbours, which I accept, that there was or at least had been, quantities of builders’ rubble on the footpath in the past, as well as the footpath being overgrown. The defendant submitted that before the time of this accident the footpath had been cleaned up, and in these circumstances it was not reasonable for the defendant to expect that there might still be hazards associated with builders’ rubble on the footpath. That depended on the evidence of Mr and Mrs Ducret, after being shown Exhibit 3, but as I have indicated that evidence was not clear, and it is contrary to the evidence of the Forfangs.  If it is necessary to resolve this, I prefer the evidence of the Forfangs, and find that the builders’ rubble generally had not been cleared off the footpath prior to the time of the accident.

34. [34]
    The evidence was to the effect that at some point after the accident there was some building work on the vacant lot, and the property was cleaned up in connection with that. There was also evidence that prior to the accident there had been some clearing in the vacant lot. That is apparent from the evidence of the neighbours, and indeed from the evidence of the aerial photographs Exhibit 2.  Although these are unfortunately not dated, two of them show a heavy canopy on the vacant lot and indeed around the house on no. 26, and the two footpath trees outside no. 26, while the third, presumably taken after the accident, shows the footpath clear of trees outside no. 26 and with few trees in that lot, and relatively few trees in the vacant lot.  The photographs Exhibit 3 appear to show less growth over the vacant lot than appears in the earlier two aerial photographs, and I accept that there was some clearing of the vacant lot some time before the accident, although it was obviously not cleaned up completely.  But that must have occurred after this site had first come to the attention of the council.^[27]

35. [35]
    The person who inspected the site on a number of occasions in 2001, on some if not all of the other inspections identified in paragraph 6A, also conceded that it was part of his duty to report dangers on the footpath, although apparently he would confine himself to visible dangers:  p 176.  In circumstances where one is dealing with overgrown footpaths, it is obvious that there may be hazards present which may be concealed by the grass.  If the long grass is providing de facto protection from those hazards while it exists, having it cleared may expose those hazards.  But that seems not to have been accommodated by the defendant’s systems, or at least by the way in which those systems were implemented.

36. [36]
    In my opinion, in circumstances where there had been complaints made about the state of this lot, and there had been inspections, the defendant ought to have known that there was some building rubble on the footpath in such a position as to create a hazard, at least if the footpath was not so overgrown that nobody would use it anyway. That there was building rubble on the footpath ought to have been apparent on a proper inspection, and if the defendant failed to detect the presence of the rubble, that indicates that the inspection was inadequate. It may be possible to tell in a general way how overgrown a particular block is just by driving past it, but obviously that is not going to detect any hazards lurking in the grass for users of the footpath. Given that the defendant’s attention had been drawn to this particular block, and that there was an overgrown footpath which potentially concealed hazards, it ought to have been inspected properly to determine whether there were hazards concealed by the grass.

37. [37]
    I do not proceed on the basis that this particular piece of concrete was an isolated problem in what was otherwise a somewhat overgrown but hazard-free footpath. The effect of the evidence of the Forfangs, which I accept, was that there was a significant quantity of builders’ rubble on the footpath, and even a fairly cursory inspection should have revealed that. Once that stage was reached, the possibility of something of this nature ought to have been apparent and a proper inspection ought to have been undertaken which ought to have detected this piece of concrete. It is probable that no proper inspection was undertaken, because this hazard was apparently never located.^[28]

38. [38]
    In my opinion, to say that the duty of care of the defendant did not extend to detecting and dealing with a hazard of this nature given the particular circumstances of this site would really amount to a submission that there was no content to the duty of care at all. I do not accept that. In my opinion, in the particular circumstances of this case, the defendant knew enough about this site to be put on notice about the possibility of there being hazards for ordinary users of this footpath prior to the time when the plaintiff attended on the site. Because the grass was long enough to conceal it from ordinary observation, it was not a hazard which could have been seen or avoided by the exercise of reasonable care by such users of the footpath. It was not submitted that the hazard was not one which could have been easily dealt with or removed, and in these circumstances there was in my opinion a breach of the defendant’s duty to the plaintiff as occupier of the footpath.

39. [39]
    There was some debate about the effect of s 30 of the Workplace Health and Safety Act 1995.  It is established that a breach of this section does not create a right of action for breach of statutory duty:  O'Brien v T. F. Woollam and Sons Pty Ltd [2002] 1 Qd R 622.  In these circumstances, it is not entirely clear how the presence of this provision is relevant to the existence of liability at common law, at least in the circumstances of this case.  This was not a workplace in the conventional sense, even if it amounted to a “workplace” for the purposes of the Act, and the fact that the plaintiff was at this site in order to do some work was really incidental to the injury.  Anyone who happened to stand on the piece of concrete could just as easily have been injured.  It seems that in practice the defendant left it to the contractor to take such steps as were appropriate to ensure the safety of its employees.

40. [40]
    No doubt people such as the plaintiff frequently have to work on uneven ground, or indeed ground where there may well be concealed hazards and obstacles.^[29]  The difficulty is that at the time the plaintiff was on a footpath, a somewhat overgrown footpath, but nevertheless a footpath and one where one would not expect to find a lump of concrete sticking out of the ground.  It is not the sort of hazard one would expect to find in a footpath.  The problem was that the grass was long enough to conceal this piece of concrete, and indeed any other concrete rubble on the footpath.  That was what made it in the nature of a trap.  That created the hazard, and made a superficial inspection inadequate.

41. [41]
    It was submitted on behalf of the defendant that the way in which the plaintiff was getting out of the truck was somewhat awkward and that he ought to have been watching where he put his foot. It may be that it is a manoeuvre which is easier to perform than to describe, but the uncontradicted evidence was that this was the way one gets out of such trucks, and there was no evidence that the plaintiff was doing anything unnatural or unusual at the time when he fell. I think it would be natural enough for a person stepping down in this way to do so without actually watching whether the foot was going to hit the ground, unless there was some reason to be concerned about the footing at that point.^[30]  The hazard in the present case was not obvious, there was no particular reason for the plaintiff to suspect it or to be looking for it, and in my opinion there was no failure to take reasonable care on his part in failing to observe it.  The fact that Mr Smith must have got out of the truck at that point without encountering the lump of concrete was I think simply his good fortune.  I cannot find that there was any contributory negligence on the part of the plaintiff; he was in the circumstances exercising reasonable care for his own safety.  It is unnecessary to consider whether there was any negligence or breach of statutory duty on the part of the plaintiff’s employer.

The plaintiff’s injury

42. [42]
    After the plaintiff fell he found his left ankle very painful: p 28.  The plaintiff was driven back to the business premises, and from there to the QEII Hospital.  He was there for some three or four hours.  His foot was x-rayed, and ultimately was put in a plaster cast which remained on for eight to 10 weeks.  He found it difficult to manage, and most of the time it was very painful.  He took painkillers, and tried to keep the leg elevated; he could use crutches but was essentially stuck at home.  After the plaster cast came off he was better able to move around, but felt he made slow progress.  He had physiotherapy for several months:  p 155.  The pain continued for a number of months, and there was then a period when there was some improvement, although he said that for the last two years it had just stayed about the same:  p 29.  He tries to spend time with his foot elevated to relieve the pressure and the swelling; it swells if he is on it for a long time.  He takes painkillers, Mersyndol, where necessary, generally every second day.^[31]  He has given up off-road driving in a four-wheel drive, and boating, because of the difficulty with any uneven ground or instability.

43. [43]
    The plaintiff was born on 8 September 1968 (p 22) so that he was 33 at the time of the accident.  He was educated to year 9, having found high school very hard:  p 29.  He subsequently worked in a range of positions, normally labouring jobs:  p 13.^[32]  He had some training as a spray painter but found the chemicals in the paint stirred up asthma and had to give that up.  He then worked for a different tree lopping company, then after a period of unemployment began to work for Vinton Tree Services, where he had been since about late 1999: p.31; Exhibit 4.   He was not one of those who would actually climb trees to lop them; rather, his work involved maintenance of equipment, and dealing with the branches lopped off the trees.  The job was quite strenuous, and required wearing safety boots, and walking over uneven ground:  p 33.  By the time of the accident he was not working at the most basic level, and was doing some cutting of trees and less labouring work.

44. [44]
    After the accident, he was off work for a time, then returned on light duties: p 34.  He continued until Christmas 2002, though there were considerable restrictions on his work.  For example, he was not able to cope with safety boots, and wore joggers at work,^[33] but that meant he could not go anywhere that required safety boots.  In addition, he was not able to help with any of the carrying work, and he felt somewhat embarrassed about not being able to help the others.  In January 2003 he was off work for a time:  p 156.  In February 2003 he was involved in a motor vehicle accident, and suffered an injury to his neck and upper back so that he was off work for a period of time:  p 35.  He did not return to work following this.  He has had some continuing problems as a result, pain in the neck and headaches; this was particularly relevant for work which involved looking up, which did apply with some of the tree-lopping work:  p 36.  There was some further physiotherapy for the ankle in 2003 (p 159) and some further investigations:  p 160.  He has not been employed since then.^[34]  He does not know what sort of work he could now do (p 37), his experience having been essentially with physical work.  He has had difficulty coping with his situation, and indeed his general practitioner, Dr Sandhu, has prescribed anti-depressants, which he has been taking.^[35]  Dr Sandhu was of the opinion that the ankle injury was the most significant factor contributing to his depression:  p 163.  He finds that his ankle limits the amount of walking he can do, and the ankle is worse in cold weather, in cold air-conditioning, or even in a supermarket near the refrigerated section:  p 41.

45. [45]
    The plaintiff suffered what would have been quite a painful injury at the time requiring a plaster cast for some weeks and keeping him away from work for some months. It was some time before the pain stabilised, and it remains painful, becoming stirred up with any unusual activity. This is in circumstances where the plaintiff is not working, and no doubt it would be aggravated if he were working and required to be on his feet for any extended period of time. There is a likelihood that in time the ankle will deteriorate further because of arthritis. Overall, the plaintiff has suffered a significant physical injury. He has also suffered a psychiatric injury in the form of a reaction to the consequences of various things, but particularly this accident, and its interference with his ability to work. It appears the plaintiff was reasonably successful in his position with Vintons, and the job suited him, and he is obviously distressed at having to give it up. I find that this injury caused the psychiatric injury identified by Mr. Stoker.

46. [46]
    I accept that the plaintiff suffered a fracture of the tip of the distal fibula, which has since healed, and a severe lateral complex disruption of the left ankle, which has left him with a 6 per cent whole person impairment, and a good deal of disability because of pain.  The plaintiff’s real physical symptoms are being enhanced by psychiatric problems, and although the psychologist offers some hope of improvement there, I think that will largely depend on his prospects of obtaining further employment, something which is likely to be very difficult because of his injuries, and will probably be made more difficult by the psychiatric problems.^[36]

47. [47]
    The condition is not susceptible to treatment, and it was conceded, I think, correctly, that this injury means that the plaintiff is generally unfit to work as a tree lopper. Although the plaintiff’s evidence was that he did not return to work after the motor vehicle accident, an examination of Dr Sandhu’s records reveal that there had been times before this when he had been unable to work because of the ankle injury, and I think it very doubtful that he would have continued with that work even had the motor vehicle accident not occurred.  The medical history is essentially of someone not coping, rather than of someone who is slowly learning to cope and work around his problems.  It may be that the plaintiff has lost some chance of continuing to work as a tree lopper because of the motor vehicle accident, but in my opinion the plaintiff’s prospects of continuing work with Vintons, or in an equivalent position, were essentially lost because of the injury to the ankle.

48. [48]
    Plainly, the plaintiff’s condition has been made worse by the motor vehicle accident. But the bulk of the plaintiff’s problems, particularly in relation to prospects of employment, date in my opinion from the accident the subject of this action, and are properly compensable under it.^[37]  The effect of the motor vehicle accident was to narrow even further what was already a fairly narrow category of potentially available positions for the plaintiff, and to make it even less likely that he would actually obtain a position within his capacity.  As a result of the ankle injury and the psychiatric complications, it was going to be difficult for the plaintiff to respond to the loss of his ability to work as a tree lopper at Vintons, even apart from the worsening of his condition in the motor vehicle accident.  The defendant has to compensate the plaintiff for the problems that it has caused; assuming someone else is liable in respect of the motor vehicle accident, that defendant is liable to the extent that the problems have been made worse.  That accident does not have the effect of intercepting or taking over the defendant’s liability.

49. [49]
    The plaintiff has suffered a painful injury which is continuing to give him symptoms, has produced some impairment in the function of his left ankle, and his pain and impairment is likely to get worse in time with the development of arthritis. He has had to give up more active recreational activities. In all of the circumstances, I assess damages for pain and suffering and loss of amenities at $40,000. In making this assessment, I have had regard in particular to the following recent decisions: Hobbs v Wapshott [2005] QSC 359; Casey v Quabba & Anor [2004] QSC 17; Henley v State of Queensland [2002] QDC 256.  I apportion $10,000 of that to the past, on which I allow interest at 2 per cent for four and one-third years, in the amount of $867.

Economic loss

50. [50]
    Following the accident, the plaintiff was unable to work for a time, and then returned to work on light duties. It appears that the plaintiff was again unfit for work for a time prior to the second accident. In the year ended 30 June 2002, the plaintiff received $33,740 net from his employer (Exhibit 4), an average of just under $650 per week.  The figure was almost the same as in the previous year, and there is no reference to any payment being received from WorkCover in that financial year.  In the following tax return there is a total net payment from Vinton Tree Services of $25,578, and there are also two other payments which I assume are WorkCover payments.  Unfortunately, it is not clear over what period the Vinton income ran, and of course during this period it may have been adversely affected by the limitations in the work the plaintiff could do.

51. [51]
    The WorkCover printout, Exhibit 5, suggests that no payments of compensation were made to the plaintiff, the only entry said to be paid to the plaintiff being reversed the following week, although there were payments made to the plaintiff’s employer identified as compensation in respect of the period from 18 April 2002 to 17 May, 24 May and 28 May to 12 July 2002.  Unfortunately, I do not have any details about what payments were made and in respect of what period by WorkCover thereafter.

52. [52]
    The plaintiff submitted that the amount received in the 2003 tax return was for a period of 32 weeks, but it is by no means clear that that was so.  There is no really clear evidence of when the plaintiff was and was not working during that period, or, perhaps more importantly, when the plaintiff was and was not being paid by Vintons, either directly or by its passing on worker’s compensation payments or subsidies.  It is also not clear what level of earnings the plaintiff might have expected in 2002-3 if he had not been injured.  Overall, the evidence as to the plaintiff’s actual earnings before and after the accident is quite unsatisfactory.  Doing the best I can, however, I proceed on the basis that the plaintiff’s pre‑accident earning rate was $650 net per week.

53. [53]
    It is also difficult to know just when the period for economic loss should start. If the plaintiff was unable to work but was still being paid by his employer, he will not have suffered economic loss as a result of the accident. It does not appear that he actually received any WorkCover payments himself prior to 30 June 2002, which suggests that the plaintiff was being paid by his employer notwithstanding his injuries, at least during this period.  Obviously, at some point WorkCover payments started, but there is no clear evidence as to when this was.  One assumes that if they had not started before they started after the motor vehicle accident, although again it is not clear when Vintons stopped paying the plaintiff.  The evidence is that there were periods after 1 July 2002 and before the motor vehicle accident when the plaintiff was unable to work, but it is not clear that he was suffering economic loss during these periods.  All I can really say is that the plaintiff has been suffering past economic loss over a period of about three and a half years.

54. [54]
    There was no allegation pleaded or proved of failure to mitigate loss. Nevertheless, there should be some discounting of the plaintiff’s claim to allow for the possibilities that, but for the accident, the plaintiff might not have continued to be employed with Vintons or elsewhere anyway, or that he might have been able to return to Vintons to some extent had he not suffered the injury in the motor vehicle accident, or that he might have obtained some other employment had he not suffered that injury. There should also be some allowance for the ordinary vicissitudes of life, although not too much because of the short period involved. In all the circumstances, I think a discount of 50 per cent is appropriate, which also makes some reasonable allowance for uncertainty as to just when the period starts.  With some rounding, I therefore award $60,000 for past economic loss.

55. [55]
    The plaintiff conceded that the net WorkCover payment should be deducted before allowing interest, which is correct, but the figure referred to, $7,219.05 (from Exhibit 5), is I think the gross payment rather than the net payment.  That is because the entry for the Australian Tax Office is only in respect of the period where there was a payment directly to the plaintiff, which was then reversed.  This suggests that the net payment covered by this benefit was about $5,600, and I will deduct that amount.  The Centrelink payment has not been proved and so cannot be deducted.  I therefore allow interest on $54,400 at 2.7 per cent for three and a half years, $5,140.  I will allow a further 9 per cent of $60,000, $5,400, for loss of superannuation entitlements.

56. [56]
    Future economic loss is uncertain. A loss of $650 per week discounted by 5 per cent over 27 years^[38] produces an amount just above $500,000.  Obviously, however, that figure must be substantially discounted.  As further time passes, the prospect of the plaintiff’s not working with Vintons, or another similar employer, would have increased.  The fact that the plaintiff had significant periods of unemployment in the past would become more significant, and the ordinary vicissitudes of life would become more significant.  The prospect of the plaintiff’s finding some suitable employment which he can now do, notwithstanding his various problems and a background essentially limited to physical work, increase.  Hopefully the psychiatric problems will be reduced by treatment.  Attention must be paid as well to the effect of the later injury in contributing to his current problems, or rather making them worse than they otherwise would have been.  As time passes the effect of the various discounting factors referred to earlier becomes more significant, but on the other hand in time the development of arthritis in the ankle will produce a more disabling condition anyway.  The plaintiff submitted that a global award for future economic loss of approximately $100,000 would be appropriate, and in all the circumstances, in my opinion that is a reasonable, indeed someone moderate, assessment and I allow that amount.  Since the assessment of future economic loss is global, no additional amount should be allowed for future loss of superannuation benefits.

Special damages

57. [57]
    It was agreed that special damages included an amount refundable to the Health Insurance Commission of $875.05, and medical and other expenses paid by WorkCover in the amount of $1,390.60: p 40, Exhibit 5.  The plaintiff has been using painkillers, at a cost of about $6 per week, for about four years, for which I allow an amount of $1,200.  He has also been taking anti-depressants for about 18 months, at a cost of about $42.  He has purchased two braces, for which I allow $130.  Special damages therefore total $3,638.  I will allow interest on $1,372 at 2.7 per cent for four years, $148.

Future medical expenses

58. [58]
    The psychologist suggested psychological counselling and a pain management program as a means of reducing the psychological consequences of the ankle injury, with a view to mitigating the adverse effect on the plaintiff’s employment prospects: Exhibit 10.  I accept this would be reasonable as a way of mitigating the plaintiff’s future economic loss, and indeed have made some allowance for the effect of this in assessing future economic loss.  It suggests future expenses of this nature of $7,000.  I think it will be reasonable to allow a further two years for antidepressant medication, plus some allowance for the risk that further such medication will be required in the future, so for anti-depressants, I will allow a lump sum of $100.  For future painkillers, there are a number of factors.  Hopefully the pain management program will reduce his reliance on painkillers.  On the other hand, in the long term the development of arthritis is likely to make the ankle more painful, which will be likely to increase the need for painkillers.  On balance, I will allow somewhat less than the equivalent of the current rate of use discounted at 5 per cent over the period of his life expectancy; I will allow $3,000.  There is no particular evidence about future travel needs, although I suppose there would be some travel necessary in connection with the various treatments, and $200 is reasonable for that.  This produces a total for future medical expenses of $10,300.

Gratuitous care

59. [59]
    The defendant pleaded that damages for gratuitous care were excluded by s 54 of the Personal Injuries Proceedings Act 2002:  para 8(e).  On the interpretation of that section adopted by the Court of Appeal in Grice v State of Queensland [2005] QCA 272, there is no relevant exclusion in the circumstances of this case, and ultimately the contrary was not pressed in argument.  The plaintiff’s evidence would support an allowance of 14 hours per week for eight weeks:  p 40.  His wife, who provided the assistance,^[39] gave an estimate of two hours per day for six weeks or a little longer, with some reduced care tapering off over a long period, although it appears that after a time the care was essentially limited to some massage, which was not shown to be necessary:  pp 118‑19.  I accept that there was a time when care was being provided for more than the six hours per week, and that was probably a period of eight weeks; I think it likely that there was some additional care provided after that time, tapering off as the plaintiff’s wife indicated, and overall I will allow 150 hours which at the agreed rate of $20 per hour comes to $3,000.  This will carry interest at 5 per cent per annum for four years, $600.

Summary

60. [60]
    I therefore assess the plaintiff’s damages as follows:

61. [61]
    I therefore assess the plaintiff’s damages at $229,093, which includes $6,755 by way of interest. There will be judgment that the defendant pay the plaintiff $229,093. Unless some other order is appropriate, I will order the defendant to pay the plaintiff’s costs of and incidental to the action to be assessed.