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  4. Lloyd v Noosa North Shore Caravan Park - [2007] QDC 281

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Lloyd v Noosa North Shore Caravan Park[2007] QDC 281

Lloyd v Noosa North Shore Caravan Park[2007] QDC 281

DISTRICT COURT OF QUEENSLAND

CITATION:

Lloyd v Noosa North Shore Caravan Park [2007] QDC 281

PARTIES:

LLOYD

Plaintiff

v

NOOSA NORTH SHORE CARAVAN PARK 

Defendant

AND

GEORGE PRESTON

Third Party

FILE NO/S:

2915/02

DIVISION:

Civil

PROCEEDING:

Personal injury allegedly caused by the negligence and/or breach of contract

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 November 2007

DELIVERED AT:

Brisbane 

HEARING DATE:

21 August 2007

JUDGE:

Searles DCJ

ORDER:

  1. the defendant to pay  the plaintiff damages of $23,909;
  2. the defendant’s claim against the third party dismissed.
  3. defendant to pay costs of plaintiff and third party to be assessed subject to the defendant’s right of further argument..

CATCHWORDS:

Occupiers’ Liability ; Statutory Immunity from Liability under s. 184[2] Workplace Health & Safety Act 1995;

LEGISLATION:

Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10                                                       Commonwealth Constitution 1901 s 109                               Law Reform Act 2005 (Qld) ss 5, 10                                              Trade Practices Act 1974 (Cth) ss 6(3), 52                           Workplace Health and Safety Act 1995 (Qld) ss 7, 93(1), 96, 98, 184(2)

Cases considered:

Astley & Ors v Austrust Ltd (1999) HCA 6

Brooks v Ticor Chemical Company Judgment [2003] QSC 180

Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33

Chapman v Luminis (No. 4) (2001) 123 FCR 62

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

Delacour v Australian Meat Holdings Pty Ltd [2005] QDC 109

Hackshaw v Shaw (1984) 155 CLR 614

Henjo Investments Pty Limited v Collins Marrickville Pty Limited (No. 1) (1988) 39 FCR 546

Henley v State of Queensland and Queensland Rail [2005] QDC 094

Ibraham v Myer Queensland Stores Ltd 300 QLD 14

Jones v Dunkel (1959) 101 CLR 298

Kenneth Roy Cooper v Gladstone City Council [2002] QDC 174 

Manwaring v Smorgon Steel Pty Ltd [2000] QDC 413

Murphy v Council of the Shire of Burnett [2006] QDC 20

Ryan & Ors v Etsa & Ors (1987) 47 SASR 220

Treloar v Dache-Haven Pty Ltd (2004) QDC 44

Watson v George [1953] HCA 41; (1953) 89 CLR 409

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

Mr Tony Williams for the plaintiff

Mr Vince Brennen for the defendant

Mr S. Farrell for the third party

SOLICITORS:

K.M Splatt & Associates for the plaintiff

Minter Ellison lawyers for the defendant

CLS Lawyers for the third party

  1. [1]
    This is a claim by the plaintiff for injuries sustained at the defendant’s caravan park/camping ground when she fell over a large rock when returning from the toilet in the early hours of the morning of 1 May 2000. There is no issue that the plaintiff was on the defendant’s premises lawfully and as a paying guest and the defendant accepts that it was an implied term of the contract between it and the plaintiff that the premises would be reasonably safe for the plaintiff’s use for the duration of the period of the agreement. I find that the defendant was the occupier of the premises at all relevant times.
  1. [2]
    The defendant joined the third party, Mr.Preston, and seeks Indemnity or contribution from him if the defendant is found liable to the plaintiff. Mr. Preston was the defendant’s workplace health and safety officer.
  1. [3]
    The plaintiff and her then partner Mr Ferguson arrived in his Nissan Pathfinder Vehicle, and booked into the defendant’s camping ground at around 9.30 am on 30 April 2000, the Sunday of the Labour Day long weekend.  They then visited their friends Mr and Mrs Hall at their caravan site located next to where the plaintiff and Mr Ferguson ultimately pitched their tent later that day.  They remained there for some 30 minutes before driving in convoy with the Halls on a daytrip to the beach.
  1. [4]
    Shortly before dusk, the plaintiff and Mr Ferguson returned from the beach and erected their tent. At some time during or after that they and the Halls were watching some Lorikeets and Galahs which can be seen in Exhibits 6 and 7, being photographs taken by Sonja the daughter of the Halls. The lighting in Exhibit 6 appears more abundant than in Exhibit 7 suggesting to me that the latter was taken some time closer to dusk than was Exhibit 6. Significantly Exhibit 6 shows a dark rock positioned between two posts, one with white paint on it immediately in front of the Maverick four-wheel drive vehicle owned by the Halls and near the front of the plaintiff’s tent.
  1. [5]
    In Exhibit 7 the two posts can be clearly seen but the offending rock is almost invisible to the naked eye because of the fading light.
  1. [6]
    The plaintiff said she and Mr Ferguson erected their three-man silver dome tent and tied the back of the tent to a huge tree-stump which is visible in another photograph, Exhibit 25. She said she saw the two posts but not the rock when erecting her tent.
  1. [7]
    That evening the plaintiff, Mr Ferguson and the Halls went to dinner at the High Tide Hotel on the premises returning to camp at about 9.00 pm.  After chatting with the Halls in their caravan annexe, the plaintiff retired at around 10.00 or 11.00 pm.
  1. [8]
    At about 2.00 am the plaintiff left her tent to visit the toilet facilities in the nearby amenities block. There was no defined path from the plaintiff’s tent to the amenities block. Exhibit 15 is a sketch prepared by the plaintiff showing the location of her camping site, the path she took to and from the amenities block. The front of her tent faced the direction of the rock and the two posts, the former being positioned in a line to the right of the centre of the front exit flaps of the plaintiff’s tent, if one was standing at the rock facing the tent, and about three feet away from them.
  1. [9]
    The plaintiff exited the front of the tent, turned left and walked around the corner of, and then along the left hand side of, the tent leaving the rock behind her. She then continued across a grass covered area leaving a vacant concrete caravan annexe pad on her left before crossing a gravel roadway. The amenities block was on the other side of that roadway.
  1. [10]
    On the return trip she followed generally the same general route in reverse except that, when reaching the tent, she walked along leaving its side on her right but walked a bit further out from it than on the trip to the toilet. As she rounded the front right hand corner of the tent to her right (right hand side facing the front of the tent) she walked wider on that corner than she had earlier and fell over the rock incurring a large gash under her left knee requiring eighteen stitches.
  1. [11]
    Her evidence was that she tripped on a little ledge underneath the rock and ended up landing on top of the rock. The evidence of Mrs Hall was that she also visited the toilet some time earlier than the plaintiff and that at the time of the plaintiff’s accident it was raining and was still raining when she and her daughter reported the incident to the defendant’s office. I consider that Exhibit 6 (photograph of the rock) depicts a dark section at the bottom that could well be the ledge referred to. Certainly that photograph evidences sharp non-rounded edges on the rock near the middle and towards the top.
  1. [12]
    The plaintiff’s claim is framed in negligence and/or breach of statutory duty and/or breach of duty of care and/or breach of contract and the breaches relied upon, in general terms, are: -
  1. (a)
    Failing to have the premises adequately lit;
  1. (b)
    Failing to have the offending rock clearly marked so as to be visible after dark by painting and/or installing reflectors on it;
  1. (c)
    Failing to remove the rock;
  1. (d)
    Locating the rock between two painted and visible guide posts; and
  1. (e)
    A catch-all allegation of failing to take any or any adequate precautions for the plaintiff’s safety.

No statutory duty was particularised and the plaintiff’s claim proceeded in contract and negligence.

  1. [13]
    The defendant in its amended defence admitted the existence of a duty of care owed to the plaintiff in both contract and at common law but denied that there had been any breach of contract or negligence asserting that any injuries the plaintiff suffered were caused or contributed to by her own negligence in: -
  1. (a)
    Failing to keep a proper look out;
  1. (b)
    Failing to pay due care and attention;
  1. (c)
    Failing to observe and avoid the subject rock when it was obvious;
  1. (d)
    Failing to carry a torch or other means of illumination when moving around the defendant’s premises after sunset; and
  1. (e)
    Failing to have due regard for her own safety.

Duty of Care

  1. [14]
    His Honour McGill SC DCJ in Treloar v Dache-Haven Pty Ltd[1] undertook a thorough analysis of recent authorities on occupier’s liability.  Whilst lengthy, the following passage identifies the relevant principles elucidated by His Honour: -

“(28) The starting point for any consideration of the law in this area is the decision of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, where the majority said at p 488 that the circumstances that the respondent was a lawful entry upon the land of the appellant established a relationship between them which of itself sufficed to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent.  It is therefore clear that in the present case there was a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff.  In that case the relevant premises were commercial premises, a supermarket, and the plaintiff respondent had slipped on the vinyl-tiled floor of the foyer area which had become wet or moist because it was a rainy day.  The trial judge had dismissed the claim and the Full Court of Victoria ordered a new trial and that decision was not interfered with on appeal to the High Court, although both the Full Court and the High Court recognised that the result of a trial on the basis of the law which ought to have been applied might well not be any different from that in the first trial where the plaintiff failed.

(29) It was foreseeable that a person might slip and fall in the premises; Phillis v Daly (1998) 15 NSWLR 65 at 74.  People can suffer serious injuries as a result of falling, and indeed if the person happened to be in the vicinity of the top of stairs, might as a result of the slip fall down the stairs.  That follows inevitably from the circumstances that people do slip and fall from time to time, and that falls downstairs can cause injury, indeed serious injury.  But it does not necessary follow that an occupier is negligent for failing to have a particularly slip resistant surface on any flooring where people are likely to be walking.  The question is, what would a reasonable man do in the circumstances by way of response to the foreseeable risk; Hackshaw v Shaw (1984) 155 CLR 614 at 666 per Deane J, adopted by the majority in Zalusna at p 488.

(13) This raises the considerations referred to by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47:

‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.  It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed for the reasonable man placed in the defendant’s position.’

(31) This sort of balance exercise was adopted by the Court of Appeal in Ibraham v Myer Queensland Stores Ltd (Appeal 6505/96, 1.8.97, Unreported) where the court upheld a trial judge’s finding that there was no negligence on the part of a shopping centre occupier in having a small step at the foot of a ramp on one side of a pedestrian crossing within the centre, when the plaintiff had tripped on the step and fallen, suffering injury.  There was no dispute that there was a duty and a foreseeable risk of injury, but the court noted that the small step was readily visible, and accepted that the risk of injury from the step was extremely small.  They were a common feature in the Brisbane area.  Although the ramp could have been easily constructed without a step, and the step could be reduced or eliminated at a small cost, as was done after the accident, there was some disadvantages in this course, in the loss of a warning to blind persons and some impairment of efficiency in the storm water drain after heavy rain.  There is also the consideration that the step was higher than the maximum height specified in the Australian standard on access by the disabled.  Nevertheless, the trial judge considered that in balancing the relevant factors it was not shown that the presence of the step amounted to negligence and that position was upheld on appeal.  My impression overall from that judgment is that the low risk of injury and the obviousness of the condition were important considerations in leading to the conclusion that a reasonable man would not have done more to avoid the risk of injury; that is, would not have been concerned to make the ramp safer, although that could have been relatively easily done.

(32) In Phillis v Daly (1998) 15 NSWLR 65 the New South Wales Court of Appeal allowed an appeal from a judgment in favour of a plaintiff against the occupier of a hotel where the plaintiff had injured her ankle as a result of stepping on to a log in a car park in the course of walking towards the hotel.  The hotel was in a rural area and the log had been there for a long time.  It was clearly visible and the plaintiff knew it was there.  The log was somewhat irregular and when the plaintiff stood on it her ankle twisted over and she fell and suffered injury.  The court held that there was a duty owed to her, the issue was whether there had been a breach of such duty.  Reference was made to Shire Council v Shirt.  The difficulty caused by the irregularity of the log could have been overcome either be removing the irregularity or by removing the log.  However, there was nothing hidden or unusual about the situation.

(33) Mahoney JA said at p 47 that “two relevant factors to take into account were that the risk was ordinary and that it was obvious.”  He also gave an example which illustrated the proposition that it was not negligent merely for there to be some risk of injury which could be but was not minimised or removed.  Samuels JA at p 69 also referred to the circumstance that the probability of such an injury was low and the magnitude of the risk slight and continued: -

‘The logs constitute a traditional, visually agreeably way of serving these functions (keeping motor vehicles away from the front of the motel) and I think that at the present time, where environmental considerations are rightly regarded as an important, aesthetic factors have their place in the calculus of negligence in circumstances such as these.’

However, His Honour said that even disregarding that factor the chance of a visitor coming to grief in such circumstances was so slight as to require no precaution omitted by the occupier: p 69.

(34) All of these decisions were referred to in the judgment of the Court of Appeal in Jaenke v Hinton (1995) AUST Tort Rep. 81-368.  In that case the court held that there was no negligence in circumstances where the plaintiff had fallen as a result of stepping on a garden hose while walking (as a lawful entrant) across the front yard of the defendant’s house.  Pincus JA, at p 62, 808 noted that the test was not that of someone who was most unusually, or obsessively, apprehensive of harm to others.  Although a garden hose could easily have been removed from the lawn, by being coiled up out of the way, and there was no good reason for leaving it lying on the lawn, the court concluded that, as Thomas J said at p 62, 809: -

‘The presence of (a common garden house) presented too small a risk to create a duty to remove it.’

Williams J at p 62, 810 noted that such hose is a common feature found in most suburban yards.

(35) In the light of these authorities it is clear, in my opinion, that, in the area of occupier’s liability at least, it is not enough to establish negligence merely to show that there is some foreseeable risk of injury and that there was some step available which would have been relatively easy and inexpensive which would have reduced that risk.  As to the last of these points, there is the further difficulty in the present case that there is no evidence as to why the plaintiff came to fall, particularly if one rejects, as I do, the evidence of Mr Smolakovs as to the floor being excessively slippery.  There may easily have been something on the floor which made it more than usually slippery, or indeed there may have been something on the plaintiff’s shoe; she said she also had a slip as she was coming into the shop (p 10) and, that must raise that possibility.”

  1. [15]
    Given the concession by the defendant as to the existence of the requisite duty to the plaintiff both in contract and at common law, the sole issue between the plaintiff and the defendant on liability is whether or not there has been breach of that duty. The contractual duty of care is concurrent and co-extensive with the duty of care in tort for the purposes of s 5 of the Law Reform Act 1995 in that the plaintiff relies on the same facts or matters in both causes of action.  The question then is what would a reasonable person have done in the circumstances of the defendant by way of response to the admitted foreseeable risk of injury to the plaintiff.  See Hackshaw v Shaw[2].
  1. [16]
    The relevant considerations in addressing this issue were identified by Mason J in Wyong Shire Council v Shirt[3] as: -
  1. (a)
    The magnitude of the risk to be addressed;
  1. (b)
    The degree of probability of its occurrence i.e. the crystallisation of the risk;
  1. (c)
    The expense, difficulty and inconvenience to the defendant in taking alleviating action; and
  1. (d)
    Any other conflicting responsibilities which the defendant may have.

(A) Magnitude of Risk

  1. [17]
    What was the magnitude, seriousness or degree of risk presented by the rock which caused the injury? It is apparent from the photographs Exhibits 6 and 7 that the subject rock is visible to the naked eye during the day or at least up until when the natural light has receded to the point reached in Exhibit 7. I say this notwithstanding that the rock is a dark colour of similar but darker colour to the road at the time when Exhibit 6 was taken. To exemplify my view that the subject rock was visible during the daytime I refer to Exhibit 27, another photograph taken by the defendant Mrs Day which shows rocks of a similar colour clearly visible during daylight.
  1. [18]
    As evening falls I am satisfied that the visibility of the subject rock diminishes as is evidenced by photograph Exhibit 7. In that photograph the rock in question is barely visible at all. I am satisfied that the colour of the rock would make it very difficult to see in the dark. That may change with the different cycles of the moon and depending on cloud cover but for the present issue of the magnitude of the risk it is sufficient for me to be satisfied on the balance of probabilities that the rock could be difficult to see on evenings where there was no sufficient illumination from the moon to show it up.
  1. [19]
    I mention in passing that Mr Preston the third party said in evidence, relying on his experience of photography, that Exhibit 7 was taken with a flash evidenced by the reflection of the light on the posts inside of the Maverick vehicle. He said it could even have been taken at night and he was not aware of whether it had been digitally enhanced. There is no evidence of either of those speculative matters and I proceed on the basis that the natural light shown through the trees at the top of the photograph shows that it was taken during the same photographic session as was Exhibit 6 but later in the day when the natural light was poorer.
  1. [20]
    Apart from the obvious evidence of the plaintiff’s injury the only direct evidence of the magnitude of the risk came from the third party Mr Preston.  He was the defendant’s Workplace Health and Safety Officer and had work in the area of risk assessment before working for the defendant.  Before dealing with his evidence I should say two things.  Firstly by his qualifications, Mr Preston is a party to the action so lacks the independence which his qualifications and experience may, on another occasion and in another forum, give him.  I treat his evidence on this issue as from a party to the action with an interest in the outcome but one who nevertheless brings some experience to the situation.  The second thing I should say is that, in my view, this is not a case which called for evidence of the degree of risk which is sometimes called in cases where the magnitude of the risk cannot be determined on the basis of common knowledge[4].  I think this is rather a situation where commonsense and ones life experience is sufficient to determine on the evidence the magnitude of the risk under consideration.  Mr Preston’s view was that the rocks of the type which caused the plaintiff’s injuries were not a significant hazard.  Even when asked to assess the risk of the subject rock against the knowledge of the plaintiff’s accident, his response was that it was still a the bush camping ground and any painting of the rock with reflective paint would require a light to reflect and that light, in his view should be a torch every camper should use. 
  1. [21]
    In my view, having regard to the colour of the rock, the sharpness of some of its edges, the absence of any lighting at night to identify it and the general layout of the camping ground I would assess the magnitude of the risk of the subject rock causing an injury of the type which it did as moderate.

(B) Degree of probability of occurrence of risk

  1. [22]
    The matters relevant to this question seem to me to be these: -
  1. (a)
    The incidence of any previous accidents involving the rock;
  1. (b)
    The visibility of the rock at night;
  1. (c)
    Any lighting in the area of the rock;
  1. (d)
    Pedestrian/camper traffic at night in the area of the rock;
  1. (e)
    The probability of campers in the area being aware of the rock;
  1. (f)
    The probability of campers using a torch light when moving around at night in the vicinity of the rock;
  1. (g)
    Absence of painting/reflectors on rock;
  1. (h)
    The effect of the refining the sharp edges of the rock to smooth edges.

(a) Incidence of previous accidents

  1. [23]
    The defendant Mr Ruster gave evidence that the subject rock was placed in the position it was at the time of the accident in or about 1992, 1993 or maybe a bit later. He said to his knowledge there had never been any previous incident of a person tripping over such a rock, or any complaint from any person as to the potential danger of the rocks. The defendant Mrs Day also said to her knowledge there had never been a previous incident reported of someone tripping or falling on the rocks including the subject rock. She was the manager of the caravan park at the relevant time and had been for 18 years. She explained that the procedure in place at the time for reporting an incident such as the plaintiff’s fall was that it would be reported to her office and a report would then be prepared by whoever in her office received the oral report. In this case Mrs Hall had reported the incident and Mrs Day then made an incident report (Exhibit 28).  On the issue of previous incidents involving the subject rock or any rocks of its type, I am satisfied that the plaintiff’s fall was the first event the defendant was made aware of, that, to the knowledge of the defendant, there had been no previous reports of incidents involving the subject rocks and no one had ever complained to the defendant as to the potential danger of the rocks.

(b) Visibility of rock at night

  1. [24]
    I have already dealt with the plain visibility of the subject rocks during the day. It seems to me that at night the rock would have been very difficult to see with the naked eye unassisted by lighting. Of course, that would vary depending on the phase of the moon cycle and any cloud cover.

(c) Any lighting in the area of the rock

  1. [25]
    The defendant Mrs Day gave evidence of power poles around the campsite. Exhibit 24 is a rough plan of the caravan park she prepared and gave to guests when they booked in to assist them in finding their campsite.  That diagram has a series of black dots which denote the locations of a series of six foot high power poles each containing four power points for power access to caravans or tents.  Mrs Day marked with a small cross near campsite 4.3 the approximate position of the plaintiff’s tent.  Site 4.3 was the campsite of the Hall’s caravan and annexe.
  1. [26]
    Exhibit 25 is a photograph taken facing site 4.3 and the concrete slab to the immediate right of the power pole is site 4.3. The position of the photographer taking that photograph is marked with a larger cross on Exhibit 24.
  1. [27]
    Apart from the four plugs on the power pole it also had a light so that there was some lighting around the campsite at night time. Mrs Day under cross-examination from Mr Williams said that the light from the pole would shine down somewhat on the plaintiff’s tent but that it was not supposed to light up the whole camp area. She agreed that the light shone down to give light around the plaintiff’s actual tent area, that closer to the pole it gave a reasonable light but conceded that it certainly wasn’t a big bright light. She explained that there was a light sensor on the pole so that as soon as it became dark the light came on.
  1. [28]
    That was the only other lighting in the caravan park apart from lighting around the amenities block which the plaintiff visited and which was some distance from the plaintiff’s tent. Although the precise distance was not in evidence Exhibit 15, being the plaintiff’s sketch of the route she took to and from the amenities block on the night in question, shows that, between the plaintiff’s tent and the amenities block, there is another campsite and an unsealed roadway. Exhibit 8 is a photograph taken by the plaintiff of the amenities block a year after the accident but there was no suggestion by the defendant that it had changed in the intervening period. That photograph depicts the illuminated amenities block and the road I previously referred to with a grassy camping area in the foreground. I am satisfied that the illumination from the amenities block did not spread to the plaintiff’s campsite and that the only lighting around that site was the subdued lighting from the power pole. When asked by her Counsel Mr Brennan if there was any particular reason why there were no street lights within the camp area Mrs Day said that the caravan park was set up as a natural camping area rather than like in city caravan parks where there was street lighting.
  1. [29]
    Mr Preston described the power poles as being five foot high with a fluorescent light underneath a cap on the top of the pole. He said it would probably throw light out in a twenty foot diameter of the pole but agreed that if there was an annexe attached to a caravan nearby, that annexe would obviously interrupt the light. Mrs Day’s diagram Exhibit 24 showing campsites and the position of the plaintiff’s tent and the power pole, coupled with the evidence of the existence of an annexe on the Hall’s caravan, leads me to the view that the light offered to the plaintiff’s camping area by the pole light was minimal.

(d) Expected pedestrian (camper) traffic in area of the rock

  1. [30]
    Mrs Day gave evidence that the plaintiff’s accident occurred on the May Labour Day long weekend when she estimated that the occupancy level of the park would have been around eighty percent.  The accident occurred in the early hours of Monday, 1 May 2000.  No evidence was given as to the maximum number of people the caravan park could accommodate.  According to Mrs Day the entire enterprise which included a resort section, a hotel, an equestrian centre and the subject caravan park covered fifty acres with the caravan park cover 15 acres.  The diagram Exhibit 24 prepared by Mrs Day for camping customers shows approximately seventy camping sites plus three camping huts.  There is also a mini golf area, games room and swimming pool so the caravan park complex is a sizeable one.  I infer there may have been between 117 and 233 people in the entire camping ground.  I calculate that by assuming between two and four campers per site (there were five in 4.3 – the plaintiff, Mr Ferguson, Mr and Mrs Hall and Sonja Hall) a total of between 146 and 292 (4 x 73; 2 x 73) 80% of which gives the range of 117 to 233. 
  1. [31]
    Focusing now on the probable pedestrian traffic at night one could reasonably anticipate in the vicinity of the subject rock, it seems to me from Exhibit 24 that, logically, the persons who would be walking near that rock other than along the adjacent road would be persons in campsites 4.1, 4.2, 4.4 and the plaintiff’s and the Hall’s site, 4.3. Having said that, given that there are roads near each of those sites 4.1 to 4.4 allowing access for the campers in each site whilst preserving the privacy of others in the No 4 campsite, it seems unlikely to me that there would be any traffic to speak of from camping sites 4.1, 4.2 and 4.4 near the area of the rock. Further, the amenities block which contains the toilet facilities is in such a position that the campers in sites 4.1, 4.2 and 4.4 would walk away from the rock to access the amenities block.
  1. [32]
    For those camp sites across the road from the plaintiff’s campsite which road being immediately adjacent to the rock, their logical access route to the amenities block would be along that road turning left into the road running perpendicular to the road running parallel to the amenities block, along that latter road and into the amenities block. I would not think they would normally walk near the rock. Of course, that assumes normality which life has a habit of distorting at times. As an occupier of such premises one would be aware of two categories of campers on whom the above logic may well be lost. I refer to children who like nothing more than running free in such spacious surroundings and to those who may have drunk alcohol, not sufficient to be inebriated, but enough to result in a momentary lapse of concentration which can result in mishap.
  1. [33]
    I consider that the pedestrian traffic around the rock would be those in campsite 4.3 where the plaintiff and the Halls were located on the evening in question, as well as members of the classes just identified.

(e) The probability of campers in the area being aware of the rock

  1. [34]
    I have already referred to Exhibit 27 which is a photograph of a section of the caravan park showing dark rocks similar to the rocks near the plaintiff’s campsite 4.3. They are clearly visible in daylight. The question is what was the probability of a camper using the plaintiff’s campsite 4.3 becoming aware of the subject rock.
  1. [35]
    The plaintiff gave evidence that she and her friend Neil Ferguson arrived at the defendant’s caravan park on the morning of Sunday, 30 April 2000. It was their first time at that caravan park. Exhibit 17, the plaintiff’s guest registration form, shows that she checked in at around 9.30 am. She then drove to the campsite of her friends Mr and Mrs Hall, site 4.3 where she remained for about half an hour before driving up the beach in Mr Ferguson’s vehicle, a Nissan Pathfinder. She said they would not have unloaded the vehicle before going up the beach.
  1. [36]
    During the time they were at the campsite prior to going to the beach, the plaintiff said her vehicle was parked somewhere in front of the Hall’s caravan on a road which was a little drive through area. She sketched on her diagram Exhibit 15 the approximate position of her Pathfinder in relation to the Hall’s Maverick and by reference to that Exhibit and Exhibit 24 being the defendant’s diagram of the camping ground, I infer that the car was parked on the roadway between campsites four and five shown on Exhibit 24 some short distance from the subject rock and the two white posts on either side of it. That was the first opportunity the plaintiff had to see the offending rock but she said that she did not see it.
  1. [37]
    She said she returned from the beach to the campsite about an hour before dark and set up her tent beside the annexe to the Hall’s caravan. The back of the tent was tied to a large tree stump which can be seen in Exhibit 25. Under cross-examination by Mr Brennan, Counsel for the defendant, she said that she could not recall seeing the power pole. She then assisted Mr Ferguson in putting up their three man tent by hammering in the pegs.
  1. [38]
    The plaintiff had to the opportunity sight the offending rock prior to the erection of the tent during the unloading of the vehicle containing the tent and camping equipment. She told Mr Brennan that her vehicle would have been parked near where she and Mr Ferguson put the tent up and that she had to walk about five feet from the vehicle to where the tent was being erected. Again, she said she failed to see the rock.
  1. [39]
    She agreed, by reference to Exhibit 6, being the photograph of the rock which is visible between the two posts and showing the front corner of her tent, that the rock would have been about three feet from the front of the tent. That was the second opportunity for the plaintiff to see the rock. She said she did not see it.
  1. [40]
    After erecting the tent and before going out for dinner with the Halls, the plaintiff stood for fifteen minutes watching the Hall’s daughter Sonja take what the plaintiff thought were about five photographs of the Lorikeets and Galahs gathering in the campsite. Two of those five photographs are Exhibits 6 and 7 to which I have earlier referred to. During that fifteen minute period another opportunity presented itself for the plaintiff to see the rock but again she said that she did not see it.

(f) Expected use by campers of a torch or other light to move around camping area at night

  1. [41]
    The next question is whether a person in the position of the plaintiff taking reasonable care for her own safety would have embarked on the journey to the toilet, in the rain, without using a torch or other light. She agreed with Mr Brennan that she was an experienced camper, but she did not do very much camping at the time of the trial but used to go once maybe every three months. She said she had been camping at Double Island Point and Inskip Point on Fraser Island. 
  1. [42]
    At transcript page 75 the following exchange occurred between the plaintiff and Mr Brennan: -

“Question: Ok.  And on this particular occasion when you went camping you would have taken a torch, wouldn’t you?

Answer: I don’t recall that I had a torch at the time.

Question: Well you will know that when you go camping it is a wise decision to take a torch, isn’t it?

Answer: Yes.  It is.

Question: But you can’t recall whether you had a torch or not on this occasion?

Answer: Well I didn’t pack the car up so I don’t remember having one there.  But Maureen and Jim did have one.  But I don’t remember having one.

Question: I won’t be a moment.  And when you returned from the toilet the night of the incident, do you recall where you were looking as you were walking back to your tent?

Answer: On the ground in front of me.

Question: And you would have been looking on the ground in front of you in order to identify any dangers such as tent ropes.  That’s correct isn’t it?

Answer: Well the tent ropes – there was no other caravans on the other side so I didn’t have to go past any there.  And I knew there was a big stump behind the tent which one of the back guide ropes was attached to.  So therefore, it wasn’t on the ground.  The only guide ropes that were there were the two little ones on the side of the tent.

Question: So you were looking at the ground in front of you in order to see where there might be some danger?

Answer: Where I was going.  Yes.

Question: And do you recall seeing the posts on your way back?

Answer: Yes I remember the posts.

Question: And you…?

Answer: The posts definitely stood out.

Question: Now do you remember the posts standing out because you’ve looked at a number of photographs with the posts in it since then or do you have a vivid recollection of seeing the posts when you returned from the toilet?

Answer:  I have a vivid remembering – oh yeah – I remember seeing it even before the accident, that the posts were there.

Question: But when you were returning from the toilets?

Answer: Yes I could see them.  Yes.  All three.

Question: And you were looking in front of you?

Answer: On the ground yeah.

Question: And you were looking for any dangers in front of you?

Answer: Yes and I was watching for the tent because I knew the tent was there.

Question: Well, by the time you’d get to the – got to the front of the tent, you knew the tent was there, didn’t you?

Answer: I didn’t get to the front of the tent.  I fell on the ground in front of the tent.”

Later at page 77 this exchange occurred: -

“Question: And you were looking down where the rock was but you simply did not see it?

Answer: I didn’t see it, no.

Question: And you did not have torch with you?

Answer: No I didn’t have a torch.

Question: But you can see that if you had a torch and you shone it in front of you, you would have seen the rock, don’t you?

Answer: I may have.  Yes I may have.

Question: Well, let’s just go back over the mechanics of what you’ve just explained to me.  You were looking in front of me.  Is that correct?

Answer: Yes.

Question: And you were looking for any sort of danger in front of you.  Is that correct?

Answer: Yes.

Question: Now, you say you didn’t – you were looking where the rock was but you could not see it?

Answer: I don’t think I would have been looking where the rock was.  I think I would have been looking closer toward the tent and I would have been sticking closer to the tent.

Question: So you weren’t looking where you were walking, you were looking to the sides.  Is that correct?

Answer: Well I just assumed I was walking alongside the tent, but I was walking a bit further out than what I had done on the previous trip to the toilet.

Question: So you couldn’t see the side of the tent?

Answer: I could see the side of the tent because that’s grey, it’s silver.  The reflective – but I was further over than what I was on the way in.

Question: And if you had a torch, you wouldn’t have seen the rock because you wouldn’t have had it shone on the…?

Answer: Shining on the tent.

Question: On the tent?

Answer: Yes.

Question: To the side of where you were walking?

Answer: Yeah, because I knew they had those couple of guide-ropes there. That’s…

Question: I won’t be a moment, your Honour. I’m almost finished. You can’t recall any light being shone from the power pole?

Answer: No.

Question: Well I put it to you that there was a power pole next to where the – Mr and Mrs Hall annexe was. What do you say to that?

Answer: Well there possibly was. I – I won’t say that there wouldn’t be one there.

Question: And I also put it to you that there is a light on top of that power pole. What do you have to say to that?

Answer: Well that’s possible. That’s probably why I thought it was enough light to walk over to the toilet and back; but I don’t remember seeing it.”

  1. [43]
    Under cross-examination by Mr Farrell for the third party, the plaintiff admitted that she usually took a torch when she went camping but she did not pack it up on this occasion because Mr Ferguson had packed for the trip. She said that she had a list, she usually followed that list and there was a torch on that list. On this occasion, the list was not followed because she did not pack the vehicle. The following exchange occurs between Mr Farrell and the plaintiff at page 82 of the transcript: -

“Question: Well see the trouble is this.  You were very happy to embrace the notion of what you usually do when it comes to your drinks.  But suddenly when I ask you about whether you took a torch on a camping trip, being an experienced camper you suddenly say “Well I don’t know, I didn’t – I don’t specifically recall that”?

Answer: We had a light.  We had a gas light but not a torch.

Question: It was your usual habit when you went on camping trips to take a torch?

Answer: No gas lights we took.

Question: Your usual habit was not to take a torch on a camping trip?

Answer: Well not with Neil it wasn’t.”

  1. [44]
    I find this evidence as to the reliance upon a gas light rather than a torch as being more than a little opportunistic on the part of the plaintiff to address the issue of why she left the tent to visit the toilet that evening without a touch or other light. I find equally opportunistic her above answer that the light on top of the power pole was possibly present which justified her making the trip to the toilet without a touch or other light, when previously her evidence was that she had not seen the power pole.
  1. [45]
    The third party Mr Preston gave evidence that he frequently attended camping sites. He said that he sometimes camped as a family with his daughter, her husband, his son and his wife and kids. Under cross-examination from Mr Williams the following exchange took place at transcript page 51: -

“Question: At night time, having a look at (the rocks) colour, would you agree with limited lighting that that would become a hazard for people walking there?

Answer: If they do not carry a torch yes.

Question: Even if a person was carrying a torch and they were using the torch to, say, outline the ropes of a tent, it doesn’t mean that the torch would show up on that particular hazard, would it.  The torch would have to be in front of the person or depending upon which way the person was walking?

Answer: I know I would carry a torch in front of me.  I’d shine it on the road in front of me where I am putting my feet.  I can only speak for myself.

Question: But if you can see a person is doing that, you do that in the circumstances you have been listening to the evidence in the back of the court for two days and it does happen, does it not, that people look for tripping hazards that they are aware of, that is ropes from tents, and if they had a torch they would be looking at it that way.  What do you say about that?

Answer: If they are not walking towards it what’s the point of shining the torch sideways?”

I agree with the last answer.  To shine a torch other than where one was to place one’s foot when moving would seem to me to diminish or destroy the benefit of having the torch and would be careless.

(g) Absence of painting/reflectors on Rock

  1. [46]
    Would the placing of reflectors or the painting of the rock in a reflective colour have impacted on the probability of occurrence of the type of accident which the plaintiff had? The plaintiff said that she had seen the two posts on either side of the rock as I have outlined. Mrs Day gave evidence that some of the posts in the camping ground were painted white and some had reflectors. From Exhibit 6, being the photograph of the birds showing the two posts on either side of the rock, it is clear to me that both posts had a reflector, that the right hand post looking from the front of the plaintiff’s tent was painted white but that the other, if ever painted, was very faded. When asked by Mr Williams in cross-examination whether she had ever considered painting the rock or putting reflectors on them similar to the posts, Mrs Day said they liked the natural effect and that people liked them in the park with their unpainted natural effect.  Mr Preston made the point that if reflective paint or any kind of paint was used on the rocks it would be useless unless there is some light to be reflected.  He said that that would require area lighting and, as there were no Australian standards covering camping ground lighting, that made it even more incumbent on any user of the campsite at night to use a hand held torch.  Whilst that is an expression of opinion, I agree with that.  Commonsense dictates that, in the absence of other adequate lighting, the use of a torch or other suitable light at night would be an obvious precaution to avoid hazards.

(h) Refining the sharp edges of the rock

  1. [47]
    Given the circumstances of the plaintiff’s accident whereby she caught her foot on a ledge underneath the rock it is not clear to me whether any refinement of the edges of the rocks would impact on the probability of such an accident occurring as opposed to the extent of any injury.

(C) Expense, Difficulty or Inconvenience of taking Alleviating Action

  1. [48]
    Mrs Day gave evidence that the rocks were originally bought in and placed around the park using trucks and tractors. Subsequent to the accident they were removed. Consistent with the decision in Ryan & Ors v Etsa & Ors[5] I do not treat that risk abatement step as, in any way, an admission by the defendant that it was guilty of an earlier breach of duty.  I mention the removal of the rocks only to demonstrate, in conjunction with the fact that they were originally bought into the camp grounds, that, if it was deemed necessary, it would not have been a major difficulty to remove the rocks.  As to the expense there is no evidence of the cost but if the defendants could afford to have the trucks and tractors utilised to place the rocks I am prepared to find that they were equally positioned financially to remove them.

(D) Conflicting Responsibilities

  1. [49]
    In Ibraham v Myer Queensland Stores Ltd[6] the plaintiff fell over a small step at the foot of a ramp in a shopping centre.  In the result the defendant was not found to be negligent but, in considering that issue, the court took into account that, whereas it would be easy to reduce or eliminate the subject step at small cost, nevertheless there was some disadvantages in that reduction or elimination would have resulted in a loss of a warning to blind persons and some impairment of efficiency in the storm water drainage system of the defendant’s premises after heavy rain.
  1. [50]
    In the present case the plaintiff’s evidence through Mrs Day was that the rocks were put there to delineate the road and to make sure people did not wander off the road with their vehicles and drive over the grass, it being the defendant’s objects to keep the grass in as good a condition as possible for campers to put their tents and caravans. There was also the aesthetic aspect of the defendant wanting to keep the appearance of a natural environment which is not an irrelevant consideration[7].  They were not so much conflicting responsibilities as reasons for the placing of the rocks.  There was no evidence, for instance, that they were there to prevent cars driving into camping grounds, thus endangering campers.

Conclusion Re: Breach of Duty

  1. [51]
    Turning now to the question I must determine and that is what would a reasonable person do in the circumstances of this matter by way of response to the clearly foreseeable risk of the dark offending rock in its locations in the camping ground. I am conscious that the mere existence of a hazard giving rise to some risk of injury does not, of itself, render the occupier negligent even if it could be minimised or removed but was not[8].  Further, failure to address readily visible hazards which resulted in a relatively small risk of injury may not amount to negligence especially if the alleged hazard was a common feature in a particular geographical area[9] or type of location[10].  I have found the decision in this matter far from an easy one.  However, in the result, I am satisfied on the balance of probabilities that there was a breach of duty on the part of the defendant in failing to adequately identify the subject rock at night time.  Although I have identified quite light anticipated pedestrian/camper traffic around the subject rock at night given the configuration of the camping ground, nevertheless, as I have alluded to it is notorious that some people, especially young children, do not always act in accordance with commonsense.  Further, I think the risk of an absent minded, mildly inebriated or simply careless camper including children seeking to run or walk through the subject camping site 4.3 rather than taking the very sensible route of a road, is not a risk that could be said to be far fetched or fanciful[11].  I consider that the defendant should have taken steps to ensure that the subject rock was more visible at night, either by the introduction of lighting generally in the area or by way of specific lighting on the rock itself whether or not in conjunction with the painting of the rock with reflective paint.  I do not consider that such a remedy would necessarily mean that the aesthetics and natural environment of the caravan park would have to be impacted.  I take judicial knowledge of the large variety of lighting including subtle landscaping lighting which is available on the market today.  Such lighting can be seen in residential gardens, wedding reception and other outdoor social gathering facilities and, in this caravan park, could have achieved the dual objectives of providing more visibility to the rock yet preserving the amenity of the caravan park.  I accordingly find that the defendant breached its duty of care to the plaintiff resulting in the accident and her injuries.

Contributory Negligence

  1. [52]
    Contributory negligence is the failure of a plaintiff to take reasonable care for the protection of his or her person or property. In my opinion the plaintiff substantially contributed to her injuries by her failure to use a torch or other light on the night in question. She was an experienced camper who, on her own evidence, said that she had a camping list which included a torch and that she usually took a torch on her camping trips. The only reason there was no torch packed on this occasion was that Mr Ferguson had packed for the trip. She attempted to fill the evidentiary gap of the absence of the torch by explaining that she had a gas light in the camp but the presence of a gas light does not address the question of why she left her tent at 2.00 am in the morning in the dark and the rain and walked a substantial distance to and from the toilet in the rain without using a torch, that gas light or a similar light source. In my view, had she been using a torch or other light, in the manner of a reasonably careful person namely by shining it on the ground ahead of where she was going to walk, she may well have seen the rock and avoided the accident.
  1. [53]
    Further, it seems to me that any experienced camper as the plaintiff was, would make it one of the first orders of the day upon arrival at a campsite to identify any hazards or potential hazards which may crystallise into a danger after dark. One does not need evidence on that issue. It is a matter of commonsense and common knowledge. As I have earlier identified on at least four occasions the plaintiff had the opportunity to look to her own interests by identifying hazards on the campsite including the rock. Firstly, when she arrived at the campsite for the half hour before they drove to the beach on the morning of Sunday 30 April. Secondly, upon returning to the campsite when she was unloading the tent and other gear from Mr Ferguson’s Pathfinder vehicle and carrying it five feet to the tent site.  Thirdly, during the erection of the tent which resulted in the front entry flaps of the tent being three feet from the offending rock.  And finally, when she was standing around for fifteen minutes looking at the birds whilst Sonja Hall took photographs, one of which Exhibit 6 shows the rock plainly in sight.
  1. [54]
    The plaintiff relied upon Murphy v Council of the Shire of Burnett[12] which also involved a plaintiff being injured in a caravan park and camping ground when visiting the toilet on a night with little moonlight.  As with the plaintiff here, she did not use a torch and suffered injury when her left foot went down into a depression in the ground, sustaining a fracture of the fifth metatarsal base of the left foot.  On the issue of whether or not there was any contributory negligence on the part of the plaintiff, his Honour held that the nature of the hole into which her foot went was such that a torch beam would not have revealed the hole.  It contained vegetation growing within it, making it increasingly hard to discern.  That is quite a different situation to the present where the rock could easily have been detected by the use of a torch or other light, such as the plaintiff’s gaslight.
  1. [55]
    On balance, but only after much deliberation, do I accept that the plaintiff did not see the rock at any stage prior to the accident but find that a reasonably careful camper would have done so in all of the circumstances. I find that she contributed to her accident and consequent injuries by a factor of 50%, and that the liability of the defendant should be reduced accordingly. This I consider is a just and equitable apportion of liability having regard to the plaintiff’s share of responsibility for her injury[13].

Liability - Contract

  1. [56]
    The plaintiff also claims a breach of contract alleging that there was a condition of the agreement between the plaintiff and the defendant whereby the plaintiff camped in the defendant’s caravan park to the effect that the plaintiff would be safe during the term of her occupation and that as a result of a breach of that condition, she was injured.
  1. [57]
    The appropriate duty owed by the occupier of the premises which the defendant was, to a person who has paid to enter those premises was reaffirmed in Calin v Greater Union Organisation Pty Ltd[14] in which the High Court confirmed that the principle established by Watson v George[15] was still a correct statement of the law.  That statement was:-

“If an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier implicitly warrants that the premises are as safe for the purpose as reasonable skill and care can make them.”

  1. [58]
    For the same reasons I have found a breach of duty of care by the defendant in negligence, I find a breach of the defendant’s contractual duty to the plaintiff. I further find that the plaintiff’s resulting damages be reduced by 50%, as representing what I consider is just and equitable having regard to the plaintiff’s share of responsibility for her injury[16].

Defendant’s claim against third party

  1. [59]
    The defendant served a third party notice on the third party seeking indemnity or contribution in the event that it, the defendant, was found to be liable to the plaintiff. The third party was a workplace health and safety officer appointed by the defendant for reward in or about 1996 until in or around 2002 during which time he was paid fees of approximately $10,000.00. The defendant has conceded the following: -
  1. (a)
    That Mr Preston is and was at all material times a safety officer pursuant to the Workplace Health and Safety Act 1995 (WHSA).  That concession carries the implication that it was an employer within that Act;
  1. (b)
    As part of his obligations under the agreement with the defendant, Mr Preston conducted some 45 safety audits of the camping ground and the resort which included various other advice including advice as to customer safety and customer incidents;
  1. (c)
    But for the circumstances surrounding the incident of the plaintiff’s accident, Mr Preston discharged his obligations under the contract.
  1. [60]
    The only matters in dispute between the defendant and the third party are these:-
  1. (a)
    That it was a term implied into the contract between them that the application of s 184(2) of the WHSA be excluded - amended Statement of Claim paragraph 4D third party Defence paragraph 2;
  1. (b)
    The true nature of the duty owed by the third party to the defendant – Statement of Claim paragraph 5(b), third party Defence paragraph 3;
  1. (c)
    That there was any breach of duty of the part of the third party – third party Statement of Claim paragraph 8, third party Defence paragraph 4;
  1. (d)
    That the plaintiff’s injuries resulted from the third party’s breach of contract – third party Statement of Claim 8(a), third party Defence paragraph 4;
  1. (e)
    That any injuries suffered by the plaintiff were as a result of misleading and deceptive conduct by the third party in breach of s 52 Trade Practices Act 1974 (TPA) – third party Statement of Claim paragraph 8(b), third party Defence paragraph 4;
  1. (f)
    That, if liable to the plaintiff, the defendant is liable to be indemnified by, or is entitled to contribution from, the third party.  Third party Statement of Claim paragraph 9 and 10, third party Defence paragraph 4.
  1. (g)
    That in the event the defendant is held liable to the plaintiff, it is entitled to damages equal to that liability pursuant to s 52 of the TPA. Third party Statement of Claim paragraph 10(a), third party Defence paragraph 4. 

WHSA Statutory Immunity

  1. [61]
    Section 184(2) of the WHSA provides:-

“Protection from liability – others

  (1)  …..

  1. (2)
    A workplace health and safety officer is not civilly liable because of the performance of, or the failure to perform, a health and safety function under Part 8.”
  1. [62]
    Part 8 of the WHSA deals with the appointment of Workplace Health and Safety Officers (Officer) and s 93(1) provides that an employer must appoint a qualified person as Workplace Health and Safety Officer for a workplace prescribed under regulation if 30 or more workers are normally employed at the workplace. A qualified person is one who holds a Certificate of Authority described under a regulation for appointment as a Workplace Health and Safety Officer.
  1. [63]
    Section 96 sets out the functions of such an Officer and provides:-

“96 Functions of Workplace Health and Safety Officers

A Workplace Health and Safety Officer has the following functions:

  1. (a)
    To tell the employer or principal contractor about the overall state of health and safety at the workplace;
  1. (b)
    To conduct inspections at the workplace to identify any hazards and unsafe or unsatisfactory workplace health and safety conditions and practices;
  1. (c)
    To report in writing to the employer or principal contractor any hazard or unsafe or unsatisfactory workplace health and safety practice identified during the inspections;
  1. (d)
    To establish appropriate educational programs in workplace health and safety;
  1. (e)
    To investigate, or assist in the investigation of, all workplace incidents at the workplace;
  1. (f)
    To help inspectors in the performance of the inspectors’ duties;
  1. (g)
    If any workplace incident or immediate risk to workplace health and safety at the workplace happens – to report the incident or risk to the employer or principal contractor;
  1. (h)
    Another function prescribed under a regulation.”
  1. [64]
    Section 98 then provides:-

“98 Appointment of Workplace Health and Safety Officer not to diminish employer’s obligations

An employer’s or principal contractor’s workplace health and safety obligations are not diminished by:

  1. (a)
    The appointment of a Workplace Health and Safety Officer; or
  1. (b)
    Any act or omission of a person acting in the capacity of Workplace Health and Safety Officer.”
  1. [65]
    Finally, section 7 of the WHSA sets out the objective of the Act and relevantly provides:-

“7 Objective of Act

  1. (1)
    The objective of this Act is to prevent a person’s death, injury or illness being caused by a workplace, by a relevant workplace area, by work activities, or by plant or substances for use at a workplace;
  1. (2)
    The object is achieved by preventing or minimising a person’s exposure to the risk of death, injury or illness caused by a workplace, by a relevant workplace area, by work activities, or by plant or substances for use at a workplace.
  1. (3)
    …..
  1. (4)
    …..”
  1. [66]
    The defendant submitted, in relation to the interpretation of s 184(2), firstly that its terms do not purport to extend to contractors whose agreements include an express or implied term to the effect that the indemnity would not extend to the parties’ agreement. The defendant does not support that submission by any authority other than the section itself. I can see nothing in the wording of s 184(2) which would call for it to be interpreted other than on its plain meaning and, in my view, there is nothing in the words of the section which would support such an interpretation. A simple example of such absent wording would be “subject to the terms of any agreement between a contractor and the Workplace Health and Safety Officer…” which would signify that the indemnity was capable of modification or exclusion. I do not accept that either an express or implied contractual term can exclude the operation of s 184(2).
  1. [67]
    Next, the defendant argued that Mr Preston must have been under the impression that a term excluding the statutory indemnity under s 184(2) may be implied into his agreement with the defendant because, otherwise, his indemnity insurance which he admitted he had, would have been pointless. There was no evidence to support the defendant’s argument. Further, I do not think that necessarily follows. It may well be that an Officer, aware of the statutory immunity, would decide nevertheless to take out professional indemnity insurance to cover the possibility that liability may attach notwithstanding the immunity.
  1. [68]
    Next, the defendant argued that, notwithstanding the language of s 184(2), as a matter of common sense it could not have been the Legislature’s intention to indemnify contracting Officers who perform their obligations in a grossly negligent manner. Again I return to the plain language of the section. When one reads s 184(2) and ss 7, 96 and 98 above outlined, to my mind the intention of the legislature becomes clear.  The object of the Act is to prevent death, injury or illness in a workplace and the functions of an Officer in s 96 are extensive.  It seems perfectly feasible to me that the legislature, having in mind the extensive functions of an Officer and the objects of the Act, considered that it was necessary to provide an immunity to the Officers to avoid one or other or both of the following occurring.  Firstly suitable persons may well not be interested in the position of an Officer in the absence of such an indemnity, or secondly, if they were, they may act so cautiously or conservatively to avoid personal liability that the objects of the Act would be severely challenged if not defeated.  For those reasons I think there is a very sensible rational foundation for the granting of the statutory immunity to Officers under s 184(2).  Against that background, s 98 sits comfortably within the Act to make it plain that the appointment of an Officer does not diminish the employer’s or principal contractor’s obligations under the Act.  Without the immunity, those obligations could be diminished by claims made against an Officer for failing to properly carry out the statutory functions in s 96.
  1. [69]
    Finally, the defendant submitted that s 184(2) could only have been intended to protect Officers already in the employ of an employer from proceedings in which the employer attempts to avoid liability to a third party by pleading a delegation of the employer’s common law duties to the Officer. Again I cannot see that any such restricted interpretation of s 184(2) is open on the language of that section. In my view, s 184(2) provides a complete answer to the defendant’s claim against the third party.

Implied term

  1. [70]
    But if I am wrong in relation to the availability of an implied term to defeat the statutory immunity, I shall deal with the argument for an implied term. For a term to be implied, the defendant must establish, by reference to principle, that such a term is capable of implication into the agreement with Mr Preston. Codelfa Construction Pty Ltd v State Rail Authority of NSW[17] determined the test for the implication of terms into agreements, which test requires the proposed implied term to satisfy five criteria:
  1. (a)
    It must be reasonable and equitable;
  1. (b)
    It must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
  1. (c)
    It must be so obvious that ‘it goes without saying’;
  1. (d)
    It must be capable of clear expression; and
  1. (e)
    It must not contradict any express term of the contract. 
  1. [71]
    As to the first of those, in the absence of an identifiable additional benefit, I do not consider it could be said to be reasonable and equitable for one party to a contract to unilaterally forego the benefit of a statutory immunity from liability which would otherwise exist but for the proposed implied term. There was no evidence of any such additional benefit. In my view that criterion is not satisfied.
  1. [72]
    As to the second, I cannot see that the implied term is necessary to give business efficacy to the contract between the defendant and Mr Preston. It was perfectly efficacious as has been demonstrated by the work done by Mr Preston pursuant to it. The only lack of efficacy that could be said to exist is the absence of the mechanism for the defendant to shift liability in whole or part to Mr Preston. That is not the business efficacy the court had in mind in Codelfa.
  1. [73]
    As to the third criterion that the implied term must be so obvious that it goes without saying, again I cannot see that the defendant can satisfy this. If the impartial observer, at point of contract between the defendant and Mr Preston, was to have raised the question “What about the statutory immunity under s 184(2)?” it could not seriously be contended that Mr Preston would have responded “It is so obvious and goes without saying that I am going to abandon my statutory immunity from liability”. The defendant cannot satisfy this criterion.
  1. [74]
    As to the fourth and fifth criteria that the implied term must be capable of clear expression and must not contradict any express term of the contract, those two could be satisfied by the defendant. Overall however, the defendant cannot satisfy all five criteria with the result that, even if on a proper reading of s 184(2) an implied term was possible, the defendant has failed to satisfy the requirements for the inclusion of such a term.

Trade Practices Act 1975 (TPA)

  1. [75]
    The defendant says that, pursuant to s 109 of the Commonwealth Constitution Act 1901, the statutory immunity granted by s 184(2) of the WHSA cannot prevail over s 52 of the Commonwealth Trade Practices Act 1975 (TPA) to the extent of any inconsistency between those sections.  It says there is such an inconsistency and s 184(2) must give way to s 52, if the defendant can establish that Mr Preston has been guilty of a breach of s 52 in that he engaged in misleading and deceptive conduct.  In that event, the argument runs, he will be liable to the defendant notwithstanding the s 184(2) WHSA immunity otherwise available to him.  No detailed argument as to the basis of the so-called inconsistency was advanced.

It will only become necessary for me to consider the inter se question of an inconsistency between two pieces of legislation if I am satisfied that the defendant can establish a claim under s 52 of the TPA against the third party.

  1. [76]
    Section 52 of the TPA provides:-

“Misleading or deceptive conduct

  1. (1)
    A corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
  1. (2)
    Nothing in the succeeding provisions of the Division shall be taken as limiting by implication the generality of subsection (1).”
  1. [77]
    It will be seen that there are three elements to the section namely that a corporation is involved, that the conduct complained of occurred in trade or commerce, and that the person, in this case Mr Preston, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive. The defendant alleges that Mr Preston made the following relevant misrepresentations:-
  1. (a)
    In his various reports to the defendant he failed to identify the rock as a potential hazard such that the reports were apt to mislead and deceive because they led the recipient defendant to believe that there were no other evident hazards but for those identified within the reports; and
  1. (b)
    The reports were silent as to the hazard of the rock when they were obliged to speak of the rock as an identifiable hazard so that by his silence Mr Preston was guilty of misleading and deceptive conduct.
  1. [78]
    Returning to the elements of the s 52 TPA action.  The first element, the involvement of a corporation, is conceded by the third party on the basis that the reports prepared by Mr Preston were communicated to the defendant by post.  Section 6(3) TPA extends the definition of corporation to circumstances where the conduct complained of involves the use by an individual of, relevantly, the Commonwealth postal services.
  1. [79]
    The next requirement is that the conduct complained of must have taken place “in trade or commerce”. That expression was the subject of consideration in Concrete Constructions (NSW) Pty Ltd v Nelson[18] in which at page 603 Mason CJ, Deane, Dawson and Gaudron JJ said that the phrase refers:-

“Only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character.  So construed, to borrow and adapt words by Dixon J in a different context in Bank of NSW v The Commonwealth, the words ‘in trade or commerce’ refer to ‘the central conception’ of trade or commerce and not to the ‘immense field of activities’ in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business.”

  1. [80]
    Later at pp 603 and 604 their Honours continued:-

“Indeed, in the context of Pt V of the Act with its heading ‘Consumer Protection’, it is plain that s 52 was not intended to extend to all conduct, regardless of its nature, in which a corporation might engage in the course of, or for the purposes of, its overall trading or commercial business.  Put differently, the section was not intended to impose, by a side-wind an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities.

What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those with whose interest it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.  Such conduct includes, of course, promotional activities in relation to, or for the purposes of, the supply of goods or services to actual or potential consumers, be they identified persons or merely an identifiable section of the public.

In some areas, the dividing line between what is and what is not conduct ‘in trade or commerce’ may be less clear and may require the identification of what imports a trading or commercial character to an activity which is not, without more, of that character.  The point can be illustrated by reference to the examples mentioned above.  The driving of a truck for the delivery of goods to a consumer and the construction of a building for another pursuant to a building contract are, no doubt, trade or commerce insofar as the relationship between supplier and actual or potential customer or between builder and building owner is concerned.

That being so, to drive a truck with a competitor’s name upon it in order to misled the customer or to conceal a defect in a building for the purpose of deceiving the building owner may well constitute misleading or deceptive conduct ‘in trade or commerce’ for the purposes of s 52.  On the other hand, the mere driving of a truck or construction of a building is not, without more, trade or commerce and to engage in conduct in the course of those activities which is divorced from any relevant actual or potential trading or commercial relationship or dealing will not, of itself, constitute conduct ‘in trade or commerce’ for the purposes of that section.

That being so, the giving of a misleading hand-signal by the driver of one of its trucks is not, in the relevant sense, conduct by a corporation ‘in trade or commerce’.  Nor, without more, is a misleading statement by one of a building company’s own employees to another employee in the course of their ordinary activity.  The position might well be different if the misleading statement was made in the course of, or for the purposes of, some trading or commercial dealing between the corporation and the particular employee.”

  1. [81]
    In Chapman v Luminis (No. 4)[19] the court considered claims for misleading or deceptive conduct against two consultants in respect of reports they had produced regarding alleged aboriginal cultural involvement with Hindmarsh Island in South Australia.
  1. [82]
    Professor Saunders had been engaged, on a commercial basis, to prepare a report under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (C’th).  His Honour Von Doussa J said,[20] in referring to Concrete Constructions:-

“[177] The majority of the High Court at 602-603 rejected a construction of s 52 which would encompass all conduct in the course of a myriad of activities which are undertaken in the course of, or incidental to, the carrying on of an overall trading or commercial business.  In my opinion the applicants’ contention that merely because the report was prepared by Professor Saunders in the course of carrying out the consultancy agreement it was prepared in trade or commerce is a contention that asserts the same broad construction of s 52 that was rejected in Concrete Construction.  Even though it may be accepted that the consultancy agreement to provide professional services for reward was entered into by Professor Saunders in the course of trade or commerce, the question earlier identified remains: was the impugned conduct of Professor Saunders ‘in trade or commerce’? That conduct, with one exception, being the particular pleaded in para 41(n) of the Statement of Claim relates to communications made to Mr Tickner in the Saunders Report.

[178] In making her Report, and in gathering information through the receipt of representations by interested persons, or otherwise, Professor Saunders was carrying out the statutory function of a reporter under s 10(4) of the HPA.  In my opinion that is not a function which is itself an aspect or element of activities or transactions which bear a trading or commercial character.  That the reporter is carrying out work of a professional nature in performing that function, and is being remunerated for doing so, does not transform the function into an activity which bears a trading or commercial character.  Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272, Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41-669, and Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 41-710 provide examples where conduct incidental to the carrying on of an overall trading or commercial business has been held not to be conduct ‘in trade or commerce’ within the meaning of s 52 of the TPA.  In my opinion the making of statements contained in the Saunders Report is not conduct by Professor Saunders in trade or commerce.”

  1. [83]
    In relation to the second consultant Dr Fergie, whose relevant report was prepared to support an application made under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 and had been prepared pursuant to a commercial agreement, his Honour said:-[21]

“[187] The conduct pleaded against Luminis and Dr Fergie as the basis for the causes of action founded on misleading or deceptive conduct relates wholly to representations conveyed by her report.  Whilst Dr Fergie was not performing a function required by statute, her report was prepared for use in connection with an application made to the relevant Minister for Protection under s 10 of the HPA.  The report was concerned with the description and analysis of Ngarrindjeri culture and spiritual matters.  It had nothing to do with the trading or commercial considerations of the Ngarrindjeri people, of the ALRM or of Luminis or Dr Fergie.  There was no element of promotion or indirect protection of commercial interests of the Ngarrindjeri people, of the ALRM, or of Luminis or Dr Fergie.  The purpose of the report was to provide Dr Fergie’s professional assessment and opinion upon the Aboriginal tradition that she was asked to consider.  The report was the intellectual product of her activities.  In this respect the distinction considered by Santow J in Prestia v Aknar at 190, 193 is to be noted.  The distinction is one to be drawn between representations about the intellectual product or about the professional practice which generates it as distinct from the intellectual product itself.  Representations of the former, but not the latter kind, bear a trading or commercial character.  At 193 Santow J cited with approval a passage from an article by Professor Bernard McCabe ‘Re-visiting Concrete Constructions’ (1995) 3 Trade Practices Law Journal 161 at 174:

‘If one examines the conduct of a professional carefully, it is possible to discern two different species of act.  There is first the exercise of intellectual skill, which is typically expressed in the form of advice to the client.  Then there are the representations about the advice and the advisor which are essentially made to promote the business of providing the intellectual skills.  It follows that one may distinguish between the commercial activity of providing the advice (and the representations made in relation to it) and the actual content of the advice….

While the professional relationship clearly bears a trading or commercial character in that a service a provided for reward, the content of the service falls outside the central conception of trade and commerce.  In other words the advice is the product; misrepresentations that are made in relation to it in order to induce the client to enter into the professional relationship will clearly be conduct in trade or commerce.  The content of the advice, however, will relate to some other matter distinct from the professional relationship… so too with lawyers: where the law advises a client on an appropriate structure for their business the lawyer is rendering advice that relates to matters of trade, but which do not directly relate to the terms of the commercial relationship between lawyer and client.’

[188] The distinction has application here.  In negotiating with and entering into contractual arrangements with Luminis and the ALRM for the provision of Dr Fergie’s services, both Luminis and Dr Fergie would have engaged in conduct in trade or commerce.  However that conduct bears a different character to the product of the consultancy service.”

  1. [84]
    It seems to me that the reports generated by Mr Preston fall into the same category as the reports of Professor Saunders and Dr Fergie and lack the essential feature of trading or commercial character so as to qualify the conduct in their production as being conduct “in trade or commerce”. In other words, those reports were prepared pursuant to an agreement which may well have come into existence in trade or commerce but the reports themselves and their delivery to the defendant are but products of that commercial relationship. They could not be said to be representations made to induce the defendant to enter into the relevant agreement. In my view the defendant has failed to establish an essential element of the operations of s 52 of the TPA with the result that s 52 is not relevant to this case.

Alleged misrepresentations

  1. [85]
    Notwithstanding my finding that the defendant cannot rely upon the TPA, lest I be wrong I shall deal with the alleged representations. I have already set them out in above in paragraph 77. In essence, the allegation concerns the absence of any reference to the rock as a potential hazard, when, it is said, Mr Preston was obliged to identify all evident hazards. Further, it is said the silence of the reports on that issue amounted to the relevant misleading and deceptive conduct by silence in circumstances where the reports were obliged to speak.
  1. [86]
    It is first necessary to identify the nature of the reports which are Exhibit 29. I am concerned with those prior to the accident on 1 May 2000. The first report is dated 7 October 1996 and the last report prior to the accident is that of 21 March 2000. There is a report of 19 August 1996 which is the date of the letter from Mr Preston to defendant Mr Ruster offering his services and providing a report on a safety audit he had done. This report was obviously done with the view to satisfying Mr Ruster that he had the requisite knowledge and skills to perform the task of Workplace Health and Safety Officer and to secure a retainer.
  1. [87]
    The relevant section in each report is headed Hazard Report. In the earlier reports from 24 October 1996 to 22 April 1997 the format of the reporting on hazards was a two column one with the Hazard in the left hand column and Required Action in the right hand column. From the 25 June 1997 report onwards, the identification of hazards was to be found in a schedulised Hazard Report to be read in conjunction with the Inspection Report section detailing inspections of various locations in the caravan park. The Hazard Report schedule had four headings; Hazard, Risk, Control, and First Noted. So the risk was identified in the first column, assessed in the second column, recommendations made to eliminate or minimise it were made in the third column and the final column recorded the date when the hazard was first noted. From 23 October 1997 those four columns were Hazard (situation or event with the potential to cause injury), Risk (what can happen to a person exposed to the hazard), and Control (recommended action to eliminate the hazard or minimise the risk).
  1. [88]
    Whilst there are factual matters in each of those reports founding Mr Preston’s expressed opinions, it is clear to me that his reports in relation to hazards represented opinions formed by him both as to the existence of a hazard and as to the action he considered appropriate to eliminate or minimise the risk.
  1. [89]
    In the abovementioned case of Chapman v Luminis (No. 4)[22] Von Doussa J considered the nature of a representation for the purpose of the TPA and said:-

“[193] A representation will be misleading or deceptive if it leads the recipient into error, or is likely to have that consequence.  The statutory prohibitions are not confined to conduct which was engaged in as a result of a failure to take reasonable care.  A respondent who has acted honesty and reasonably may nevertheless by rendered liable if the defendant’s conduct has in fact mislead or deceived or is likely to mislead or deceive: Parkvale Custombuilt Furniture Pty Ltd  v Puxu Pty Ltd (1982) 149 CLR 191 at 197 per Gibb CJ.  It is the objective nature of the respondent’s conduct that is ultimately determinative of liability and not the state of mind of the respondent: Bowler v Hilder Pty Ltd (1998) ATPR 41-625 at 40, 857.  A representation constituted by a statement involving the state of mind of the maker of the statement, e.g. promises, predictions and opinions, ordinarily conveys the meaning that the maker of the statement has a particular state of mind when the statement was made and that there was a basis for that state of mind.  Thus an expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and that there is basis for the opinion.  If these conditions are met, an expression of opinion, however erroneous, misrepresents nothing: see Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 55 ALR 25 and James v ANZ Banking Group Ltd (1986) 64 ALR 347 at 372.”

  1. [90]
    As to the determination of whether or not a statement is an opinion or a statement of fact his Honour continued[23]: -

“[194] It is not always easy to determine whether an expression of opinion will be identifiable as such by the person to whom the representation is directed.  It is necessary in every case to look at the particular reader of class of reader likely to be affected by the representation: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd at 199 and Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisation Inc (1992) 38 FCR 1 at 24-26 per Foster J and at 46 where Hill J said: -

‘No case will afford a guide to any other case, since it must essentially be a question of whether a particular formulation of words expresses merely an opinion or a statement of fact.  However, two observations may be made.  First, the subjective purpose or motivation of the maker of the statement will not be of much significance.  It is the reader’s perception of the maker’s intention which will ordinarily be the significant matter.  The question will generally be resolved by looking to the persons to whom the statement was directed and asking whether any member of that class would reasonably understand the statement to be one of fact or of opinion.’”

  1. [91]
    I consider that the defendant Mr Ruster could not have reasonably concluded other than that Mr Preston’s characterisation of particular things as hazards in his reports was other than an expression of an opinion notwithstanding, the reports obviously obtained facts upon which Mr Preston based his opinions.

This conclusion is supported by the following evidence of Mr Ruster[24]: -

“Question: Ok now in terms of the report that you were then given, you don’t have any problem with the – or complaint about the accuracy of the facts that were described in them?

Answer: No

Question: So you don’t argue for example – or you don’t complain that there were occasions when George got the facts wrong.  And by that I should – I’ll give you an example; if he said, for example, there is a dead branch hanging above a path which should be pulled back, you would have had cause to read a – a complaint like that, go out and find that it wasn’t there?

Answer: No – no everything that George said was always there.”

 And later on[25] he said: -

“Question:  So what you were interested in, in the reports was not the statement of fact about the rocks, it was George’s opinion about whether the rocks constituted a hazard?

Answer:  Well, - if George thought the rocks were a hazard he would have put it in his report.

Question:  Yes that right.  I’m driving at what it is that you specifically wanted from George.  The reason you engaged him was not to tell you that there was a rock there, it was for his opinion as a safety consultant about whether they constitute a hazard or not?

Answer: Yeah, that applies to a lot of other things as well.

Question: Well?

Answer: Not just the rocks yeah.

Question: Yes.  Oh in general – oh, yes, I understand what you say, yes.  Well, what you’re after, in these reports is a statement of opinion from a professional?

Answer: Yes.

Question: I see?

Answer: Yes.”

  1. [92]
    As previously noted, the defendant accepts that, but for the allegations under consideration concerning the rock, Mr Preston satisfactorily discharged his obligations under the contract. Implicit in that concession is the acceptance that opinions expressed by him in those reports had a proper basis. In evidence Mr Preston said that he did not regard the rocks as a significant hazard.  Given that his hazard reports only dealt with hazards which had the potential in his view to cause injury, there is no evidence to suggest that his decision not to include the rocks was other than a result of his opinion that they did not constitute a significant hazard.  Mr Preston said in his evidence-in-chief that, when he started his inspections in 1996, the rocks were then in place, so it was clear he was aware of the rocks but they did not, in his mind, constitute a significant hazard.  Hence, they were not mentioned in any Hazard Report.  The fact that others, including a court, may form another view as to their risk profile does not alter their status as opinions.

Representation by silence

  1. [93]
    Silence can, in the appropriate circumstances constitute an actionable misrepresentation under the TPA. In Henjo Investments Pty Limited v Collins Marrickville Pty Limited (No. 1)[26] the full Federal Court addressed this issue.  In that case the appellant was the vendor of a licensed restaurant, licensed for seating 84 people at 26 tables pursuant to its Refreshment Room licence.  In fact, in contravention of that licence, the appellant had set up 120 chairs at 39 separate tables.  A representative of the respondent purchaser visited the restaurant but before doing so rang the vendor and was told that the business was a “licensed coffee lounge / restaurant with about 120 seats known as New York Deli”.  Four days later the purchaser’s representative visited the restaurant and sat at a table with the appellant’s representative.  It was not asserted that the latter said anything further about the number of seats, but the purchaser’s representatives did observe that the restaurant was set with 39 tables and 128 chairs.  In the result the court found that the vendor sold the business knowing that it was subject to serious limitations upon its lawful seating capacity and knowing that in fact the restaurant was being conducted contrary to law with a substantial element of over-seating.  The court found that these circumstances gave rise to a duty on the part of the appellant as vendor to reveal the true position to the respondent as potential purchaser rather than remain silent before any contract was signed.  Lockhart J with whom Burchett and Foster JJ agreed said:-[27]

“At common law, silence can give rise to an actionable misrepresentation where there is a duty upon the representor to reveal a matter, if it exists, and where the other party is therefore entitled to infer that the matter does not exist from the silence of the representor: W Scott Fell and Co Ltd v Lloyd (1906) 4 CLR 572 per Griffith CJ at 577; Halsburys Laws of England (4th ed, 1980) vol 31, para 1052.  The circumstances in which silence may constitute misleading conduct under the Act were referred to in Rhone-Poulenc Agrochimie Savuim Chemical Services Pty Ltd (1986) 12 FCR 477.  That case established that silence may be relied on in order to show a breach of s 52 when the circumstances give rise to an obligation to disclose relevant facts: see Bowen CJ at 490, Lockhart J at 504 and Jackson J at 508.”

Accordingly, for the defendant to be successful in establishing a misrepresentation by silence (assuming it gets over the above hurdle that the misrepresentation was, in my view, a non-actionable opinion) it must show that there existed the requisite obligation on the part of Mr Preston to disclose the rock.  The respondent had been receiving the reports from Mr Preston since at least as early as 23 October 1997.  They disclosed only hazards which were described by him in the report as a situation or event with potential to cause injury.  Given his evidence of his opinion that the rock did not, to him, amount to a significant hazard, and in the absence of any evidence establishing that a person in Mr Preston’s position, and relationship with the defendant, using reasonable care, would have included the rock in his report, in my opinion no relevant relationship existed obliging Mr Preston to disclose the rock as a significant hazard existed.  Accordingly any alleged misrepresentation by silence could not, in my view, succeed.  The result is that the defendant fails in its TPA claim so that there is no need for me to address the inter se question.

Breach of Contract

  1. [94]
    Again, notwithstanding my finding that Mr Preston is entitled to the statutory immunity from liability under s 184(2) of the WHSA, lest I be wrong I shall consider the defendant’s claim against him for breach of contract. The defendant alleges that Mr Preston was engaged to use due care and skill in performing the following functions set out in paragraph 4 of the Amended Statement of Claim: -
  1. (a)
    Telling the defendant about the overall state of health and safety at the caravan park;
  1. (b)
    Conducting inspections at the caravan park to identify any hazards and unsafe or unsatisfactory workplace health and safety conditions; and
  1. (c)
    Reporting those hazards to the defendant.
  1. [95]
    The allegations of breach of contract are contained in paragraph 80A of the defendant’s amended Statement of Claim against the third party, the particulars of which are:-
  1. (a)
    the third party failed to perform the function referred to in paragraph 4A(a) with due care and skill, in that if he (sic) he failed to tell the defendant about the:
  1. (i)
    inadequate lighting
  1. (ii)
    hazard posed by the rock not being clearly marked so as to be visible during the hours of darkness;
  1. (iii)
    hazard posed by the presence of the rock;
  1. (iv)
    hazard posed by the location of the rock;
  1. (v)
    precautions it could have taken for the plaintiff’s safety.
  1. (b)
    the third party failed to perform the function referred to in paragraph 4A(b) namely to conduct inspections of the caravan park to identify any hazards and unsafe or unsatisfactory workplace health and safety conditions with due care and skill, in that he failed to, during the regular inspections, identify the matters referred to in subparagraphs (a)(i) to (v) hereof.
  1. (c)
    the third party failed to perform the function referred to in paragraph 4A(c) namely to report to the defendant any hazard at all, or with due care and skill, in that he fails to, in the reports, identify the hazards referred to in subparagraphs (a)(i) to (v) hereof.”

(I have transposed the content of paragraphs 4A(b) and 4A(c) into the above paragraphs).

  1. [96]
    The contract between the defendant and Mr Preston was a contract for services and it is now settled law that a person in the defendant’s position may, as a party to such a contract, sue in both contract and negligence which the defendant has done. There is an implied term in such as contract that a person in the position of Mr Preston impliedly promises to exercise reasonable care and skill in the performance of the relevant services.  That term arises by operation of law: Astley & Ors v Austrust Ltd.[28]
  1. [97]
    Did Mr Preston fail to exercise reasonable care and skill in the performance of his contractual obligations? Those obligations must be considered in the context of the contract. It is not sufficient, of course, for the defendant to simply reply upon the absence of references to the rock as a hazard. Rather it must establish that such an absence was a result of Mr Preston’s failure to exercise reasonable care and skill in the performance of his contractual duties[29].
  1. [98]
    The caravan park in question was fifteen acres of a fifty acre Resort. Mr Preston was not a full time Officer which, in any assessment of his contractual performance, is relevant. Obviously, if he was a full time employee he would have had more time to not only inspect the defendant’s premises but to consider and reflect upon matters which may not present as hazards in his mind without further reflection but, with that reflection, may assume a changed characterisation.
  1. [99]
    When he first commenced working for the defendant pursuant to his letter of 19 August 1996 (Exhibit 29) the agreement was that he attend the defendant’s site for inspection purposes every month and provide a report to the defendant after each inspection.  He did that.  From in or about March 1998 this changed by agreement with the defendant to every two months and from February 1999 it was extended to once every quarter.  So, at the time of the accident on 1 May 2000 he was only attending four times a year.  His most recent visit prior to that being 13 March 2000 resulted in his reported dated 21 March 2000.
  1. [100]
    It is not in dispute, absent this present issue of the rock, that Mr Preston performed his obligations appropriately and to the satisfaction of the defendant and the forty-five reports of his testify to that. They appear to me to be the work of a very diligent and thorough person. In the absence of any evidence from an expert in the area to support the view that Mr Preston’s failure to identify the rock as a potential hazard constituted a lack of reasonable care or skill on his part I am not prepared to so find. The defendant’s claim for breach of contract fails.

Negligence

  1. [101]
    Similarly, notwithstanding my findings on s 184(2) of the WHSA, I move now to consider the negligence claim against Mr Preston in the event that I am in error on that finding.
  1. [102]
    In negligence the defendant alleges that the third party was in breach of the duty of care owed by him to the defendant as follows: -
  1. (a)
    Failing to identify all hazards within the caravan park which posed an unreasonable risk of injury to entrants to the caravan park;
  1. (b)
    Failing to advise the defendant of all hazards within the caravan park which posed an unreasonable risk of injury to entrants to the caravan park;
  1. (c)
    Failing to advise the defendant of action to be taken to minimise/eliminate unreasonable risks of injury to entrants to the caravan park;
  1. (d)
    Failing to perform his duties under the agreement and at law with all due care and skill; and
  1. (e)
    Failing to take reasonable care to perform his services under the agreement and his duties at law so as to avoid causing or contributing to injury to entrants to the caravan park.
  1. [103]
    For the same reasons I have outlined in relation to the claim for breach of contract I am not satisfied that the defendant has established that there was any breach of duty of care owed by Mr Preston. Again, the fact of omission to treat the rock as a potential hazard does not, of itself, constitute negligence. What the defendant must establish is that Mr Preston did not observe the standard of care expected of a reasonable work place health and safety officer in similar circumstances. As I have said, there was no evidence led from such a person to establish any such shortcoming. Accordingly, I find that the defendant’s claim in negligence against the third party is not made out.
  1. [104]
    It will be obvious that my findings in relation to all causes of action against Mr Preston, whilst focussing on the categorisation of the rock as a hazard, necessarily involve findings that all other particulars of the breach alleged, which are predicated on that the issue of identification of the rock as a hazard, have, likewise not been made out.

Summary of conclusions re liability

  1. [105]
    The net effect of the above consideration of issues of liability is that the defendant is liable to the plaintiff for fifty percent of her loss and damage and the defendant’s claim for indemnity or contribution against the third party fails.

Quantum

  1. [106]
    I turn now to consider quantum. Immediately after the accident the plaintiff caught a ferry and went to the Noosa Hospital where the wounds were cleaned and sutured.  Eighteen stitches were inserted in the wound.  She then returned to the caravan park, others packed up the tent and she then went home.  She was off work for four weeks during which time she said that there was not much she could do around the house.  She was on crutches and could not bend her leg.  As to the house cleaning she said that Mr Ferguson helped as did her friend Anne-Marie Knight, a cousin and her children particularly her daughter Georgina.
  1. [107]
    Returning to the first month after the accident she received assistance in showering and visiting the toilet from her mother, daughter and girlfriend. I take that to be Ms Lynne Rose referred to in the plaintiff’s further supplementary updated statement of loss and damage.  She did not cook, so all the cooking was done by those who assisted her.  They also took her from bed to the toilet and to the lounge room as required.  She could not do any shopping in that period.
  1. [108]
    During this one month period Mr Ferguson from whom she is now estranged, and her daughters Georgina and Corina lived in her home with her.  She visited her parents’ home for one week in that month.
  1. [109]
    As to the level of assistance she received in that first month she said that the first three weeks were constant when she needed a lot of assistance and she estimated that she received eight hours per day for the first two weeks reducing to six hours and then four hours per day in the following two weeks.
  1. [110]
    At the end of the first month after the accident she returned to work. For a period of a further six months from re-commencement of work she still required assistance with house cleaning, gardening, tending to the lawns and some of the ironing which her cousin did. She had the assistance of Mr Ferguson and other people who popped over and Mr Ferguson particularly assisted with the driving around of her children which she did prior to the accident. Her parents visited once a week except for the weeks when she stayed with them in Brisbane.  She estimated that for that six month period following the expiration of one month after the accident she received approximately eight hours per week assistance of the nature above outlined.
  1. [111]
    Following the expiration of that six month period, that is up to about 1 December 2000, the only area in which she required ongoing assistance was with gardening. The difficulty with gardening was kneeling which hurt her.
  1. [112]
    At the time of the trial she said that she still had trouble kneeling so that she had paid someone to prune back her garden which was something she said she would have done but for her injury. As to the gardening she gave evidence that she required assistance for four hours each week. She said that during the time she was receiving assistance from abovementioned people. She paid for the house cleaning and the ironing at the rate of $10 per hour.
  1. [113]
    She had started belly dancing in 1997 and, whilst she returned to that, she now can not do what she calls floor work which involves a sword dance requiring the dancer to kneel on the floor. She is unable to execute that manoeuvre. She said before the accident she could go down to different height levels when dancing but now she dances within her limitations.
  1. [114]
    As to her work history, she was, at the time of the accident, a customer service officer at Caboolture Centrelink where she had been since 1990, a period of approximately 10 years. She returned to that position one month after the accident and remained there until 2005 when she accepted a voluntary redundancy package unrelated to this accident.  She then commenced working at Fairhaven Care Centre at Wamuran as a night carer mainly with occasional day work and cooking work.  She said that she found on some days during that work the leg really hurt requiring her to lie down and keep it elevated until it settled down.  She wears special shoes which I understand are joggers with inner soles.
  1. [115]
    As a result of the continued pain in her leg she has recently made applications for office work which she says she will find easier because it does not involve standing on her feet. She said that she could not see herself doing any work in the future such as process working, shop work or cooking work all of which involved continual standing.
  1. [116]
    When she returned to Centrelink after the first month post the accident she was still on crutches and was doing processing type work. Being close to the end of the financial year there was in her words ‘lots of overtime on offer’ and she missed out on two overtime shifts which she had been booked in for prior to the accident. Apparently towards the end of each financial year was the only time of the year when Centrelink offered overtime to its staff.
  1. [117]
    She said that prior to the accident she played golf every weekend at the Big Fish at Caboolture but since the accident has not been able to play because the twisting of the leg required was too much for the injured leg. She explained that when her leg plays up she experiences a burning sensation which she usually addresses by rubbing it, and in extreme cases by lying down and elevating the leg.
  1. [118]
    As to the residual scarring, not surprisingly she said that she did not like having it and tended to wear trousers and longer skirts when she never used to do so as much prior to the accident. I personally inspected the scar in the privacy of the hallway behind the courtroom with all counsel and my recollection is that it was a moderately prominent scar.
  1. [119]
    I generally found the plaintiff to be a witness of truth, although there were some items claimed by her in relation to the refund due to HCF which were not referable to the claim. I shall say more of that later. She also admitted in evidence that she had lied when she gave evidence of her gardening needs at variance with that in her statement of loss and damage. I am not prepared to find that she deliberately set out to mislead the court on that and I regard that as a careless error on her part. She did have a tendency at times to seek to fit her case to the best evidence available at the time and that is demonstrated by her attempt to explain the absence of a torch by saying that she had a gaslight in the camp. That was clearly an afterthought, but one which she sought to use to answer the criticism of her not having a torch. However, on balance, I think she endeavoured to give a truthful account in her evidence.

Medical Reports

Dr Pentis – Examination 31 July 2001

  1. [120]
    The plaintiff consulted Dr John Pentis, Orthopaedic Surgeon on 31 July 2001 some fifteen months after the accident. He recorded the plaintiff’s history as having fallen on a rock sustaining a laceration to her left upper tibia which was cleaned and sutured at the Noosa Hospital.  Subsequently, she had pain and was mobilised on crutches and told to keep her leg stiff and straight to allow the wound to heal.  During mobilising the centre of the wound broke and she developed some infection which was treated with antibiotics.  She also developed a rash/allergy to iodine preps.
  1. [121]
    The plaintiff presented as forty-five year old reasonably fit and not overweight person. Dr Pentis recorded that at the time she had difficulty running and jumping, was uncomfortable on uneven ground, had difficulty with stairs, was stiff, could not fully kneel or squat, could walk reasonably well and had some numbness in the region of the wound. He recorded her sporting activities as golf and belly dancing. On examination he found a four to five inch scar over the upper portion of the anterior left tibia which was somewhat tender, with numbness on the inner third of that scar and surrounding tissue. There was some pain on stressing the anterior compartment. The plaintiff had a good range of movement of the knee and ankle with some pain on squatting. Colour and temperature were normal and the x-rays showed no gross abnormality in the bone and no soft tissue foreign bodies. Dr Pentis commented that the plaintiff had sustained a soft tissue injury to the anterior tibial region to the left lower leg which had caused her pain and inconvenience and had required sutures.  He said a subsequent infection had required antibiotic treatment and the plaintiff had been left with a tender tight scar and some numbness in the region of the scar.  He anticipated that she would be left with some tenderness, touchiness and tightness in the region of the scar which would affect her in strenuous activities involving the lower limb.  However he said the condition was not severe enough to warrant operative treatment and it would not be required in the future.  He thought the plaintiff’s condition was unlikely to degenerate further with time but that it had left her with a residual incapacity of approximately three percent to five percent loss of the efficient function of the lower limb on the affected side.

Dr Boys – examination 29 May 2003

  1. [122]
    The plaintiff next saw Dr Peter Boys, Orthopaedic Surgeon on 29 May 2003 at the request of the defendant. At that point a little over two years following the accident, the plaintiff described intermittent burning sensations occurring a few days a week in the region of the left anterior shin just proximal to her scar.
  1. [123]
    She was unable to identify any specific factor initiating this burning sensation. She had local numbness in the scarred region but no distal sensory alteration. Dr Boys said her wound no longer discharged and there was no specific local tenderness to the region. He said the plaintiff related no specific symptoms referable to the knee and her knee movements were preserved. He went on to say that she related to him that she took care with activities such as going down steps or stairs or with belly dancing activities as she experienced some sensations of insecurity within the region.
  1. [124]
    The plaintiff also told Dr Boys that she avoided kneeling in her garden, had discontinued her pre-accident golf activity, was still attending a dance school and was dancing with a belly dancing group though she had somewhat modulated her “moves”. She had no other active hobbies.
  1. [125]
    Dr Boys said that the plaintiff presented as an obese woman which was different to her presentation to Dr Pentis less than two years previously on 31 July 2001 who described her as reasonably fit and not overweight.
  1. [126]
    Dr Boys reported that the plaintiff’s gait was normal. She was able to heel and toe, walk normally and could achieve a full squat, although he conceded he had not asked her to perform a squat. He said that there was an attitude of constitutional valgus of both knees but no evidence of left thigh or calf muscle wasting. There was a good straight leg raise and the patello ligament functioned normally. Knee joint lines were non-tender and there was a full range of movement of the knee. He reported that collateral and cruciat ligament stability was normal.
  1. [127]
    Dr Boys identified a pale thirteen centimetre transverse scar overlying the proximal tibia which was somewhat broadened in mid point but was non tender. There was no local lump or other palpable abnormality in the region though there was some alteration to light touch sensation in the scarred region. He said neurovascular examination distal to the scar was normal and radiographs of the left leg of 31 July 2001 showed no bone or soft tissue abnormality.
  1. [128]
    Dr Boys expressed the opinion that the plaintiff had suffered a transverse laceration of the skin and subcutaneous fat in the proximal left shin which was consistent with the stated cause namely falling over the top of a rock. He said the wound had been slow to heal but had subsequently settled with a cosmetically acceptable scar.
  1. [129]
    Dr Boy’s view was that there was no quantifiable impairment of bodily function evident of a Orthopaedic nature associated with the injury by reference to the standard American Medical Association Guidelines Evaluation to Permanent Impairment. He noted no domestic or work incapacity, said there was no deterioration of function anticipated as a result of the injury and there was no requirement for ongoing care. He finalised his report by noting that the plaintiff had sought Chiropractic treatment for a pre-existing unrelated condition following the fall and that she had protracted massage treatment of the lower limb which he said was not indicated on medical grounds in the light of the injury sustained.

Dr Pentis – examination 6 March 2007

  1. [130]
    Finally then in relation to the medical reports put in evidence, Dr Pentis saw the plaintiff again on 6 March 2007. He reported that she was still having problems with her leg and had to be careful with slopes and uneven ground, could not run, jump or jog on it properly and had difficulty walking distance. She was otherwise comfortable walking but found that she favoured the left leg and used the right one more. He said she could not squat or kneel as it aggravated it which I take to be the overall condition. He said she had a feeling of giving away at times and had to be careful and always had some pain of a burning type below the kneecap, tibial tuberosity region.
  1. [131]
    Dr Pentis reported that the plaintiff had not returned to playing golf, was still belly dancing but could not do the floor walk as she could not get down onto her knees. She was teaching some belly dancing but could not do it fully as it aggravated the knee.
  1. [132]
    On examination he found that there was still a burning feeling below the kneecap, some tenderness in the medial and lateral joint line but no gross clicking on meniscal testing and no gross wasting or gross effusion. There was some crepitus on ranging the knee and slightly decreased flexion with pain on forcing it into flexion. There was no gross laxity of the ligaments. He concluded that the plaintiff had now recovered as best she would from a soft tissue injury sustained to the soft tissue structures around the front of the upper tibia.
  1. [133]
    He said that although the injury was still continuing to give her some difficulties, at that stage it was probably best for her to accept it. The alternative was an arthroscopy of her knee to see if there was any pathology inside the knee, it being possible that, in the scar that formed, she may have irritated the saphenous nerve which could be causing the funny, sensory, burning problems she was experiencing. He said an operative exploration and release of this condition was an alternative but may not be successful and would cost between $4000 and $5000 with a recovery period of up to six months depending on what was found and what treatment was undertaken. He did not recommend this. Finally he expressed the opinion that the plaintiff’s incapacity was approximately 5 – 7.5% loss of the efficient function of the limb on the affected side assuming that she may have some damage to the cartilaginous, meniscal structures of the knee. In summary the consequences of the injury to the plaintiff in the view of Dr’s Pentis and Boys as expressed in their reports were: -

Dr Pentis – examination 6 March 2007

Dr Boys – examination 29 May 2003

  1. problems with uneven ground, an inability to run, jump or jog properly;
  2. difficulty in walking distances;
  3. a preference for the right leg over the left leg;
  4. an aggravation to the injury when she squats or kneels;
  5. a feeling that the left knee is giving way at times so that she has to be careful;
  6. a burning type pain below the knee cap at all times;
  7. a cessation of her pre-accident golfing activities;
  8. a limitation on her belly dancing movements in that she can not go down on her knees.
  1. Intermittent burning sensations occurring a few times per week in the region of the left anterior shin just proximal to the scar;
  2. Unable to identify any specific  factor initiating burning sensation;
  3. local numbness in  the scarred region but no distal sensory alteration.  No specific local tenderness in the region;
  4. care with activities such as going down steps or stairs or with belly dancing activities as she experiences some sensations of insecurity within the region;
  5. voids kneeling in her garden;
  6. discontinued pre-accident golf activities;
  7. modulation of her moves during  belly dancing;
  8. can achieve a full squat;
  9. No quantifiable impairment on bodily function evident of an Orthopaedic nature;
  10. no restriction on work activities;
  11. no specific symptoms referable to the knee;
  12. No domestic or work incapacity;
  13. No deterioration of function would be anticipated as a result of the injury;
  14. No requirement for ongoing care. 
  1. [134]
    Given that Dr Boys has not examined her since 29 May 2003, it is difficult to rely on his report over that of Dr Pentis as to current symptoms.  I accordingly prefer the evidence of Dr Pentis on current symptoms.
  1. [135]
    As to the permanent impact of that condition there is some difference of opinion between the two doctors. Dr Boys in his examination of 29 May 2003 noted that the plaintiff had no domestic or work incapacity.  Dr Pentis in his first report on 8 August 2001 records no work incapacity and simply records that the plaintiff went back to work after four weeks.  When he came to examine her again on 6 March 2007 for the purpose of this trial he made no mention in his report of 15 March 2007 of any work incapacity related to the injury.  That is consistent with his earlier report and that of Dr Boys.
  1. [136]
    However, under cross-examination by Mr Brennan Dr Pentis said his estimate of the plaintiff’s incapacity namely 5%-7% loss of the efficient function of the left leg on the affected side was based upon assumptions he made concerning restrictions in the plaintiff’s work capacity. He said he would assume that a person with the injury the plaintiff had would have that incapacity. He also assumed that the activities of a hospital carer would involve squatting or kneeling.
  1. [137]
    A matter of concern to me is the fact that there is no mention in Dr Pentis’s report of any reported work incapacity. I find that quite odd given that the purpose of the report was to prepare for this trial and Dr Pentis knew that. Dr Pentis explained the absence of any such notation by saying the plaintiff may have mentioned work incapacity and he may have forgotten to write it down. Given the importance of such an issue as incapacity for work in a case of this nature and Dr Pentis’s acknowledgement in evidence of its importance, it seems to me remarkable that, if Dr Pentis discussed such an important issue with the plaintiff knowing its significance to her claim, it was neither noted nor referred to in his report. In all the circumstances I am not prepared to find that the plaintiff told Dr Pentis in her consultation on 6 March 2007 of any work incapacity arising from the injury.
  1. [138]
    Both doctors agreed that there was no Orthopaedic reason for the continuing pain and that it resulted from the surrounding nerves. Dr Pentis thought that the scar may have entrapped a superficial nerve. Dr Boys said, having noted the thirteen centimetre transverse scar on the plaintiff’s leg, he would assume that the burning sensations experienced related to the local cutaneous nerves in the region of the scar.
  1. [139]
    In my view the limitation on the plaintiff’s day to day life resulting from her injury is the burning pain around the scar which has restricted her belly dancing movements and gardening. She also experiences a weakness in the left knee making her think it may give way on her. This seems to be associated with the scar’s effect on the nervous around the scar, given there is no evidence of any orthopaedic problem with the knee. This leads to a preference of the right leg over the left. Her injury has eliminated golf as a recreational past time. This results from her inability to rely as she once did on her left leg and it also involves walking distances which she now cannot do. Dr Pentis in his 2007 report refers to difficulty in running, jumping and jogging but there was no evidence given as to any running, jumping or jogging activities of the plaintiff prior to the injury.

Turning now to the specific heads of quantum.

Pain, suffering and loss of amenities of life.  

  1. [140]
    The plaintiff suffered a serious gash to her left leg below the knee which has left her with a moderately unsightly scar. She still experiences a burning sensation and numbness around the scar. That injury has sounded the death knoll to her recreational golf, has restricted the range of movements in her belly dancing hobby and as a result of pain when kneeling or squatting, has pretty well put paid to her gardening activities.
  1. [141]
    For the first month after the accident she was immobilised and required the assistance of family and friends to carry out basic functions such as dressing, bathing and toiletry. To her credit she returned to work within one month of the injury and has not lost any work as a result of it ever since. I have considered the following cases referred to me by Mr Williams for the plaintiff – Kenneth Roy Cooper v Gladstone City Council Judgment No D143/1999 Wall DCJ, Henley v State of Queensland and Queensland Rail Judgment No 02/256 McGill DCJ, Manwaring v Smorgon Steel Pty Ltd Judgment No 413/2000 McGill DCJ, Brooks v Ticor Chemical Company Judgment No 3/180 Dutney J, Delacour v Australian Meat Holdings Pty Ltd [2005] QDC 109.  In all the circumstances I consider an appropriate figure for general damages, pain, suffering and loss of amenities and cosmetic scar is $25,000 plus interest on that sum at 2% from 1 May 2000.

Special Damages

  1. [142]
    Before dealing with the dollars, it is appropriate to raise the issue of the over-claiming by the plaintiff in her further supplementary updated Statement of Loss and Damages for the HIC refund. Under cross-examination she agreed that payments from HIC in relation to Doctors Calais and MacBride were not related to the accident as she claimed in the Statement. Whilst I found the plaintiff to be a witness who was endeavouring to tell the truth it was of concern to me that she signed her Statement containing illegitimate claims. I do not say that she did that with the intention to mislead as there was no benefit in it for her but rather for HIC. It does point up however the importance of legal advisors ensuring that clients signing such important documents as Statements of Loss and Damage read and fully comprehend the content of those documents by reference to contemporaneous documentation.
  1. [143]
    The defendant submits that the figure of $1,035 claimed for the HIC refund should be reduced by $550 to leave $485 but the plaintiff has only claimed in her final submissions the sum of $382.50 and I allow that sum. In total for special damages I allow: -
  1. (a)
    HIC refund   $382.50
  1. (b)
    Pharmaceutical expenses including interest  $300.00
  1. (c)
    Travel expenses  $100.00
  1. (d)
    Hire of crutches    $12.00
  1. (e)
    Ferry call out fee    $68.00
  1. (f)
    X-rays    $87.00
  1. (g)
    Pre-paid dancing weekend    $80.00
  1. (h)
    Medical expenses  $155.00
  1. (i)
    Vitamin E oil  $100.00
  1. (j)
    Paid assistance provided by Lynne Rose

(3 hours per week at $10 per hour for 6 months)   $720.00

Total    $2004.50

Past Economic Loss

  1. [144]
    The claim here is for overtime of $175 which the plaintiff missed out on together with $60 being the belly dancing teaching fee she missed out on. A total of $235. With interest I allow $300 for this item.

Future Economic Loss

  1. [145]
    The plaintiff had been working as a Customer Service Officer at the Caboolture Centrelink office since 1990, a period of approximately ten years. Upon returning to that position after the accident, although her work was restricted for a time, she remained at Centrelink for a further period of five years or thereabouts until 2005 when she accepted a voluntary redundancy unrelated to her injury. Her job with Centrelink involved interviewing customers who had appointments and reception duties in the main reception.
  1. [146]
    She left Centrelink and took a position as a night carer at an elders’ home Fairhaven Care Centre at Wamuran where she worked mainly at nights but occasionally during the day and occasionally doing cooking. She said that she had decided to leave that position and was now looking for office work because the work at Fairhaven involved a lot of standing which led to pain in her leg.  She also expressed concern that any bumping of her leg on furniture may cause an abscess to form on the scar.
  1. [147]
    The following evidence relates to her redundancy and the work at Fairhaven[30]: -

“Question:  And – so my understanding is you left a more lucrative occupation with Centrelink to take up a job at Fairhaven for less money; is that correct?

Answer:  I took a reduced working in preference to having a stress-related job, which actually got worse after I left.

Question:  Ok.  So the reason why you left your employment with Centrelink was stress-related; is that correct?

Answer:  No.  I was offered the package.

Question:  Yes?

Answer:  I thought about it.  I took it.  I paid some of my mortgage off and took a job which had less hours and more client satisfaction than what Centrelink was giving me.

Question:  Ok?

Answer:  Because you were just part of a number.

Question:  And now you are thinking about leaving Fairhaven; is that correct?

Answer:  Yes.

Question:  And you were thinking about leaving Fairhaven for what reason?

Answer:  Changes in finances.

Question:  Yes?

Answer:  And it is harder to do the work standing all the time but you have to try things before you find out whether it is going to be worth it.

Question:  And you started working with Centrelink in 1990; is that correct?

Answer:  1990, yes.

Question:  And you were a clerical worker there, is that correct?

Answer:  Yes.

Question:  And you would agree with me that – well I withdraw that.  And what were your main tasks associated with being a clerical worker?

Answer:  Same thing as what I was doing all along.  Clerical worker is – you do exactly the same public contact.

Question:  Right.

Answer:  Then the systems that they were implementing and the changes they were making in 2005 weren’t – well I still maintain contact with people at work, and the stress levels within that department has actually got astronomical.

Question:  And you would agree with me that you are much more experienced clerical worker?

Answer:  Yes.

Question:  Than you are a carer?

Answer:  Care, Yes.  But I still like looking after the oldies.

Question:  So the reason why you left the – I’ll withdraw that – the reason why you left your employment at Centrelink was a dual reason of you didn’t like the way Centrelink was starting?

Answer:  The direction yes.

Question:  To operate?

Answer:  Right.

Question:  And?

Answer:  It was…

Question:  Because the financial package was attractive.

Answer:  Yes.  I have a payment which I get each month, so, yes – for my super.

Question:  And now you are going to leave Fairhaven for the dual reasons?

Answer:  Oh well.

Question:  Of improving your finances and because you find the work difficult?

Answer:  Yes.

Question:  And you stated to be fair, that you find the work difficult because you have to stand for long periods of time and that aggravates – according to you?

Answer:  Yes it can aggravate it. 

Question:  Your scar or…?

Answer:  The leg.  Aggravates the leg.  It’s mainly the leg.  It is not necessarily the scar.

Question:  Well, let’s just turn to the leg for a moment.  What do you say you are experiencing with the leg that is reducing your ability to work at Fairhaven?

Answer:  Well, occasionally you will wack your leg.

Question:  Yes?

Answer:  On the beds when you do – making beds, things like that.  So occasionally you will hit your leg there, which – occasionally I have hit the scar and it does hurt.  I don’t really want to get an abscess there and that’s a possibility because of where it is on my leg so I have to look after that to the best of my ability.

Question:  And have you started looking for future employment?

Answer:  No – yeah I have put an application in.”

  1. [148]
    It seems apparent to me from the evidence that the plaintiff voluntarily relinquished her secure employment with Centrelink of some 14 to 15 years’ duration for reasons quite unrelated to her injury. Importantly she worked for another period of up to five years from her return to work after the accident until she accepted the voluntary redundancy. There is no evidence from her as to any incapacity for work during that five year period, apart from when she initially returned to work. There is no evidence that clerical work for which she appears eminently suited and which work she carried out for some ten years prior to and some five years after the accident, is in any way inhibited by her injury.
  1. [149]
    The plaintiff’s chosen work to date has been mainly clerical work apart from her short stint at the nursing home, and which appears to be the work she is best qualified to pursue. Nevertheless her injury has denied her the option of doing other work such as aged care which may involve the risk of her scar being damaged by contact with beds, furniture and the like. Her decision to leave Centrelink was partly related to the stress of the position and that could again be a driver for her in the future to prefer non-clerical work. I consider the plaintiff is entitled to some payment for future economic loss to reflect that small potential future limitation. I assess that at $5000.

Claim for Past Gratuitous Care – Griffith v Kerkemeyer

  1. [150]
    Before dealing with this I address the defendant’s argument that Jones v Dunkel[31] applies to the plaintiff’s failure to call as witnesses all persons who provided gratuitous care to her so that I should draw the inference that, had they been called, their evidence would not have been helpful to the plaintiff.  I do not agree with that.  The plaintiff gave direct evidence of the care she has received and there is no necessity for her to call every single witness to corroborate her evidence.  It was at all times open to the defendant to call those witnesses if it thought it would assist its case.  There was no obligation on her to explain or contradict something in evidence, which is one of the essentials underpinning the rule in Jones v Dunkel.
  1. [151]
    I am satisfied as to the claim made by the plaintiff in relation to this head and allow the sum of $6429 calculated as follows: -
  1. (a)
    8 hours per day for two weeks  

            following the accident at $10 per hour        $1120.00

  1. (b)
    6 hours per day for the next week  $  420.00
  1. (c)
       4 hours per day for the following week $  280.00
  1. (d)
    6 months following the first month of the

            accident i.e. 25 weeks x 8 hours x $10  $2000.00

  1. (e)
    Gardening assistance 2 hours per month

            at $10 for 6.5 years –

            1.5.2000 – 21.8.2007    $1560.00

Total       $5380.00

  1. (f)
    Interest at 3% for 6.5 years   $1049.00

Total with interest     $6429.00

Future Gratuitous Care

  1. [152]
    I award a global figure of $2500 to take account of the plaintiff’s future gardening needs at the rate of two hours per month at $10 per hour. In that figure I have taken into account the exigencies of life which may arise.

Future Medical Expenses

  1. [153]
    I am satisfied that the plaintiff uses Panadol occasionally to ease the pain in her leg associated with scar and uses Vitamin E medication to rub into the scar. I accept the plaintiff’s submission that that costs of the order of $3.50 per week for a period of twenty-nine years assuming a life expectancy of eighty years. Using the $810 multiplier on the five percent table this totals $2,835. On the evidence I am not satisfied that the plaintiff will undergo any further surgery.
  1. [154]
    Accordingly the plaintiff’s damages are as follows: -

Head of Damage

Sum awarded

Pain, Suffering and Loss of Amenities of Life

$25,000.00

Interest from 1 May 2000 at 2%

$   3750.00

Special Damages

$   2004.00

Past Economic Loss including interest

$     300.00

Future Economic Loss

$   5000.00

Past Gratuitous Care with interest

$   6429.00

Future Gratuitous Care

$   2500.00

Future Medical Expenses

$   2835.00

Subtotal

$47,818.00

Less Contribution of 50%

$23,909.00

Net total damages payable to plaintiff

$23,909.00

  1. [155]
    I make the following orders:-
  1. (a)
    that the defendant pay to the plaintiff by way of damages $23,909;
  1. (b)
    that the defendant’s claim against the third party be dismissed.

On the issue of costs as between the plaintiff and the defendant and as between the defendant and the third party, subject to hearing argument and being persuaded to the contrary, I consider that the defendant should pay both the plaintiff’s and the third party’s costs to be assessed.

Footnotes

[1] [2004] QDC 44

[2] (1984) 155 CLR 614 at 666 per Deane J adopted by the majority in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479                

[3] (1980) 146 CLR 40 at 47

[4] Maloney v CMR for Railways (1978) 52 ALJR 292

[5] (1987) 47 SASR 220 at 224-225

[6] Appeal 6505/96, 1.8.97, Unreported 

[7] Phillis v Daley (1988) 15 NSWLR 65 per Samuels JA at 69

[8] Phillis v Daley (1988) 15 NSWLR 65

[9] Ibraham v Myer Queensland Stores Ltd above 

[10] Jaenke v Hinton (1995) Aust Tort Rep. 81-368: A garden hose in a residential yard.

[11] Wyong Shire Council v Shirt (1980) HCA 12 para 13 per Mason J

[12] [2006] QDC 20, a decision of Skoien SJDC

[13] Section 10 Law Reform Act 1995

[14] [1991] HCA 23; (1991) 173 CLR 33

[15] [1953] HCA 41; (1953) 89 CLR 409 per Williams ACJ at 415

[16] Section 10 Law Reform Act 1995

[17] (1982) 149 CLR 337

[18] (1990) 169 CLR 594.

[19] (2001) 123 FCR 62

[20] (2001) 123 FCR 62 at 177

[21] (2001) 123 FCR 62 at 187

[22] (2001) 123 FCR 62 at 193

[23] (2001) FCA 1106 at 194

[24] Transcript page 180 line 48

[25] Transcript page 182 line 10

[26] (1988) 39 FCR 546

[27] Page 557

[28] (1999) HCA 6 at  [46] & [47]

[29] Watson v George (1953) HCA 41; 89 CLR 409 per Williams ACJ at p. 415

[30] Transcript p 55

[31] (1959) 101 CLR 298

Close

Editorial Notes

  • Published Case Name:

    Lloyd v Noosa North Shore Caravan Park

  • Shortened Case Name:

    Lloyd v Noosa North Shore Caravan Park

  • MNC:

    [2007] QDC 281

  • Court:

    QDC

  • Judge(s):

    Searles DCJ

  • Date:

    16 Nov 2007

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Astley v Austrust Ltd (1999) HCA 6
2 citations
Jump To
Cite 1 - (1999) HCA 6
Cite 2 - (1999) HCA 6
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
2 citations
Jump To
Cite 1 - (1987) 162 CLR 479
Cite 2 - (1987) 162 CLR 479
Australian Safeway Stores Pty Ltd v Zaluzna (1986) 162 CLR 479
1 citation
Jump To
Cite 1 - (1986) 162 CLR 479
Bowler v Hilder Pty Ltd (1998) ATPR 4 1-625
1 citation
Jump To
Cite 1 - (1998) ATPR 4 1-625
Brooks v Ticor Chemical Company Pty Ltd [2003] QSC 180
1 citation
Jump To
Cite 1 - [2003] QSC 180
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
2 citations
Jump To
Cite 1 - (1991) 173 CLR 33
Cite 2 - (1991) 173 CLR 33
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23
2 citations
Jump To
Cite 1 - [1991] HCA 23
Cite 2 - [1991] HCA 23
Chapman v Luminis Pty Ltd (2001) 123 FCR 62
5 citations
Jump To
Cite 1 - (2001) 123 FCR 62
Cite 2 - (2001) 123 FCR 62
Cite 3 - (2001) 123 FCR 62
Cite 4 - (2001) 123 FCR 62
Cite 5 - (2001) 123 FCR 62
Chapman v Luminis Pty Ltd No 5 (2001) FCA 1106
1 citation
Jump To
Cite 1 - (2001) FCA 1106
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 C.L R. 337
2 citations
Jump To
Cite 1 - (1982) 149 C.L R. 337
Cite 2 - (1982) 149 C.L R. 337
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
2 citations
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Cite 1 - (1990) 169 CLR 594
Cite 2 - (1990) 169 CLR 594
Cooper v Gladstone City Council [2002] QDC 174
1 citation
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Cite 1 - [2002] QDC 174
Delacour v Australia Meat Holdings Pty Ltd [2005] QDC 109
2 citations
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Cite 1 - [2005] QDC 109
Cite 2 - [2005] QDC 109
Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 4 1-669
1 citation
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Cite 1 - (1999) ATPR 4 1-669
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 55 ALR 25
1 citation
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Cite 1 - (1984) 55 ALR 25
Hackshaw v Shaw (1984) 155 CLR 614
3 citations
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Cite 1 - (1984) 155 CLR 614
Cite 2 - (1984) 155 CLR 614
Cite 3 - (1984) 155 CLR 614
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 39 FCR 546
3 citations
Jump To
Cite 1 - (1988) 39 FCR 546
Cite 2 - (1988) 39 FCR 546
Cite 3 - (1988) 39 FCR 546
Henley v State of Queensland [2005] QDC 94
1 citation
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Cite 1 - [2005] QDC 94
Ibrahim v Myer Queensland Stores Limited [1997] QCA 229
3 citations
Jump To
Cite 1 - [1997] QCA 229
Cite 2 - [1997] QCA 229
Cite 3 - [1997] QCA 229
Jaenke v Hinton (1995) Aust.Tort Rep. 81-368
2 citations
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Cite 1 - (1995) Aust.Tort Rep. 81-368
Cite 2 - (1995) Aust.Tort Rep. 81-368
James v ANZ Banking Group Ltd (1986) 64 ALR 347
1 citation
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Cite 1 - (1986) 64 ALR 347
Jones v Dunkel (1959) 101 CLR 298
2 citations
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Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Maloney v Commissioner for Railways (N.S. W.) (1978) 52 ALJR 292
1 citation
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Cite 1 - (1978) 52 ALJR 292
Manwaring v Smorgon Steel Pty Ltd [2000] QDC 413
1 citation
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Cite 1 - [2000] QDC 413
Murphy v Burnett Shire Council [2006] QDC 20
2 citations
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Cite 1 - [2006] QDC 20
Cite 2 - [2006] QDC 20
NAW Scott Fell and Co Ltd v Lloyd (1906) 4 CLR 572
1 citation
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Cite 1 - (1906) 4 CLR 572
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
1 citation
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Cite 1 - (1982) 149 CLR 191
Phillis v Daly (1998) 15 NSWLR 65
2 citations
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Cite 1 - (1998) 15 NSWLR 65
Cite 2 - (1998) 15 NSWLR 65
Phillis v Daly (1988) 15 NSW LR 65
2 citations
Jump To
Cite 1 - (1988) 15 NSW LR 65
Cite 2 - (1988) 15 NSW LR 65
Proud v Windbigler [2004] QDC 44
2 citations
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Cite 1 - [2004] QDC 44
Cite 2 - [2004] QDC 44
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477
1 citation
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Cite 1 - (1986) 12 FCR 477
Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) ATPR 4 1-710
1 citation
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Cite 1 - (1999) ATPR 4 1-710
Ryan & Ors v Etsa & Ors (1987) 47 SASR 220
2 citations
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Cite 1 - (1987) 47 SASR 220
Cite 2 - (1987) 47 SASR 220
Tobacco Institute of Aust v Australian Federation of Consumer Organisations Inc (1992) 38 FCR 1
1 citation
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Cite 1 - (1992) 38 FCR 1
Unilan Holdings Pty Ltd v Kerin (1992) 35 FCR 272
1 citation
Jump To
Cite 1 - (1992) 35 FCR 272
Watson v George (1953) 89 CLR 409
3 citations
Jump To
Cite 1 - (1953) 89 CLR 409
Cite 2 - (1953) 89 CLR 409
Cite 3 - (1953) 89 CLR 409
Watson v George (1953) HCA 41
3 citations
Jump To
Cite 1 - (1953) HCA 41
Cite 2 - (1953) HCA 41
Cite 3 - (1953) HCA 41
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
3 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40
Cite 3 - (1980) 146 C.L. R. 40
Wyong Shire Council v Shirt (1980) HCA 12
1 citation
Jump To
Cite 1 - (1980) HCA 12

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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