Wickes v Body Corporate for Kabi Kabi
[2007] QDC 312
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- Wickes v Body Corporate for Kabi Kabi[2007] QDC 312
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Wickes v Body Corporate for Kabi Kabi[2007] QDC 312
Wickes v Body Corporate for Kabi Kabi[2007] QDC 312
DISTRICT COURT OF QUEENSLAND
CITATION: | Wickes v Body Corporate for Kabi Kabi [2007] QDC 312 |
PARTIES: | JUDITH ANNE WICKES (Plaintiff) AND BODY CORPORATE FOR “KABI KABI” COMMUNITY TITLES SCHEME 10963 (Defendant) |
FILE NOS: | 107/05 |
DIVISION: | District Court of Queensland, Maroochydore |
PROCEEDING: | Trial |
ORIGINATING COURT: | Maroochydore District Court |
DELIVERED ON: | 23 November 2007 |
DELIVERED AT: | Maroochydore |
HEARING DATE: | 7 November-8 November 2007 |
JUDGE: | Judge J.M. Robertson |
ORDER: | Judgment for the plaintiff in the amount of $56,756.95 |
CATCHWORDS: | Occupiers liability - plaintiff injured in fall down external garden steps in the night time – whether relevant principles for liability for negligence in the Civil Liability Act 2003 accord with common law principles – whether plaintiff by her actions voluntarily assumed risk of falling or contributed by her own negligence. Assessment of damages - assessment undertaken by reference to Civil Liability Act and Regulation 2003, multiple injury case, assessment of ISV whether “mental disorder” which is not subject to a PIRS assessment can be taken into account in a multiple injury claim for the purpose of assessing the ISV. Gratuitous services - Whether threshold in Act reached – whether Act encapsulates the common law on this issue. Legislation: Civil Liability Act 2003 Civil Liability Regulation 2003 Cases: Carrol v Coomber and Anor [2006] QDC 146 De Candia v Holmes [2005] QDC 242 Francis & Ors v Lewis [2003] NSW CA 452 Griffiths v Kerkemeyer (1977) 139 CLR 161 Green v Hanson Construction Materials Pty Ltd [2007] QCA 260 Wyong Shire Council v Shirt (1986) 146 CLR 40 |
COUNSEL: | R Morgan counsel for the Plaintiff D Kelly counsel for the Defendant |
SOLICITORS: | John-Paul Mould Solicitors for the Plaintiff Tresscox Lawyers for the Defendant |
- [1]At around 10:45pm on the 7th January 2003, Judith Wickes fell and injured her right thumb and left wrist while descending a set of steps in a garden area at the eastern end of the defendants unit building at 265 Bradman Avenue, Maroochydore. She also suffered abrasions to her lower limbs. She claims damages for personal injuries. She is a married lady and her date of birth is 9.9.50.
- [2]Earlier that evening at around 7:30pm she had visited her friend Barbara Hocking who lived in Unit 4. She had visited Ms Hocking once or twice before but only in the day time. I accept her evidence that she drove past the block of units from the west because there was no place to park outside on Bradman Avenue, and she then parked on the roadway just past an adjoining set of shops. The steps are the closest point of entry to Unit 4 from the driveway to the units for a person coming from the east. On her earlier visit or visits she had used the same steps without incident. I accept her evidence that because of her lack of familiarity with the lay out of the unit block she was not aware of the main pedestrian entry to the units which is further to the west. Although it is obvious now that this is the main point of pedestrian entry; I accept that it was nevertheless reasonable for a visitor with minimal knowledge of the layout of the units, in the absence of any signage, to use the steps to enter onto the property from the east to visit someone in Unit 4.
- [3]Both liability and quantum are in dispute. The claim stands to be determined by reference to the applicable principles contained in the Civil Liability Act and Regulations 2003
LIABILITY
- [4]Mrs. Wickes most recent amended statement of claim (filed by leave on the 7th November 2007) sets out various particulars of what she says constitutes the defendant’s breach of duty of care as occupier of the property.
- [5]The particulars relied upon at trial are
- (a)the pathway was hazardous for pedestrians due to its narrowness and thefact that it was curved with boulders on wither side forcing a pedestrian to walk around a corner which in combination with other factors particularised herein, made the pathway and steps hazardous;
- (b)the sawn off cuts of the tree trunk which had been set into the ground as the steps failed to comply with guidelines for steps set out in the Building Code of Australia;
- (c)the sawn off cuts of tree trunks set into the ground as steps failed to comply with the guidelines for steps set out in Australian Standard 1657
- (d)the width and height of the sawn off cuts of tree trunks set into the ground did not comply with the Building Code of Australia or Australian Standard 1657 in that they were not uniform and presented an erratic walking surface;
- (e)the centre of each step had decayed and in the first three steps, concrete had been used to fill the hole, however, the bottom three steps had not been filled with concrete with the result that the surfaces of the top three steps and the bottom three steps were not uniform and were likely to take a pedestrian by surprise;
- (f)the tops of the bottom three steps had rotted out and had depressions in them;
- (g)the steps were so inappropriate and hazardous that it would have been safer for pedestrians if they were not there at all and instead the path consisted entirely of gravel;
- (h)the pathway was ill lit with no direct light and the nearest light was approximately 5 metres away which was of no benefit to pedestrians using the pathway at night as any indirect light was blocked off by plants;
- (i)the Defendant failed to properly maintain the pathway and steps;
- (j)the Defendant failed to take proper care for the Plaintiff’s safety.
In his final submission, Mr Morgan concentrated heavily on (g) (h) (i) and (f). No evidence was lead in support of (b)(c) and (d).
- [6]Mrs. Wickes descended from the balcony of Unit 4 by use of the steps depicted in Photo 2 in Exhibit 44 and turned left onto a flat grassed area which lead to the steps.
- [7]I accept her evidence that it was dark at this time. When she entered earlier, the steps were illuminated mainly from the awning street lights on the shop next door. I accept Ms Hockings evidence that the shop lights were extinguished at around 9 p.m. As Mrs. Wickes walked towards the steps her friend was a few metres behind her. I accept her evidence that it was a new moon and the area of the stairs was dark. She was watching her step and wearing proper footwear. She could see the top two steps but not the bottom three. There was a pole light in the garden area which is well depicted in the scale drawing done by Mr Wickes (Exhibit 5); however I am satisfied that this light did not reach the steps because of the positioning of the rocks and intervening foliage.
- [8]In her evidence in chief, she told me she was carrying a folder in her left hand…she was looking down at the steps. She could see the first two, (I am satisfied), because of the minimal light from the overhead street light across Bradman Avenue (depicted in the bottom left corner of Exhibit 5) and perhaps some amount of light from the pole light reflected on the cement centres that had been placed in the first two (I infer) at some earlier time by the Defendant because of the hollowing out of the steps which had occurred over time. The same concrete filling had also been applied to the fourth step down from the grassed area but not stairs 3 and 5. The stairs as they were on the night are well depicted in Exhibit 31 which is obviously a photograph taken in the daytime. The deterioration in the centres of steps 3 and 5 is obvious as it is in Exhibit 2.
- [9]The defendant had previously commissioned Solutions in Engineering Pty Ltd to conduct a workplace health and safety inspection of the whole premises and this inspection and report was undertaken and prepared by Marcus Munsterman who had a certificate as a workplace health and safety officer as a result of undertaking a short course. He gave evidence for the plaintiff but was not qualified as an expert, and his evidence and report (Exhibit 8) was received only insofar as he was able to tell me about the state of the steps at the time of his inspection in January 2003. He gave evidence (consistently with what he wrote under the photograph of the steps on p. 6 of the report) that steps 3 and 5 were hollowed out and he recommended that the centres be filled as soon as possible. It is not suggested that the Defendant was alerted by this inspection to any danger in these steps by the report. It was clearly received by it after the incident.
- [10]In any event, Mrs. Wickes proceeded down the steps being unable to see the bottom three. She recalls going down the third step and then the fourth although she couldn’t see them and she thought it was the last step before the concrete. She thought she was stepping onto the cement and she missed the bottom step and fell. She is unable to give much more detail as to the mechanism of the fall, but I am able to draw reasonable inference from all of the evidence including the state of the steps at the time. In cross-examination she was challenged forcefully by Mr Kelly as to why she continued to walk down the steps when she could not see the last three and it was so dark. He suggested to her that it was dangerous for her to do that and she very guardedly accepted that proposition. Rather than go against her as Mr Kelly submits, this evidence shows me that she is an honest person who is prepared to make concessions. I am satisfied that in making the concessions she did she was acting with the wisdom of hindsight and not from her perspective that night when she was a second or third time visitor to her friends unit (her first at night) and was lulled into a false sense of security by being able to see the first two steps because (I find) the centres had been filled with concrete. She was also forcefully challenged as to why she didn’t take the route to the right which would take her to the better lit main pedestrian entry to the units near the pool. I accept her evidence that she did not realise that there was another way out, and she returned by the way she had entered; reasonably in my view, being the most direct route to where she had parked her car.
- [11]At some time after the incident, the defendant caused the steps to be removed and access through that area blocked by a barrier. This obviously occurred at some time prior to the photographs taken my Mr Wickes on 24.10.2003 which are Exhibit 34. By August 2006 the area was garden with no access as depicted in Exhibit 35. Mr Fleming, a loss adjustor appointed by the Defendants insurers, gave evidence using Exhibits 11 and 23 to refresh his memory of ascertaining that the defendant had had some work done in the area of the steps in November 2003, which involved the removal of the wooden steps and placement of rocks as a garden edge at a total cost of $95. If the steps were, in all the circumstances, a danger to persons leaving the units in January, it was clearly a simple and cheap exercise to completely remove the danger.
- [12]Although this incident is covered by the Civil Liability Act 2003, the pleadings are all couched in terms of common law principles of negligence, and both very experienced counsel argued that the common law should be applied by me as they both conceded (in the circumstances of this case) that the common law accorded with the applicable principles set out in (for example) ss. 9 and 10 of the Act.
- [13]The interaction between the Act and common law principles was recently considered by the Court of Appeal in Green v Hanson Construction Materials Pty Ltd [2007] QCA 260. This case seems to give support to the joint submission of both counsel here (one of whom appeared in the Green case) that in the circumstances here the appropriate test is still that described by Mason J (as his Honour then was) in Wyong Shire Council v Shirt (1986) 146 CLR 40 at 47-48 reproduced by the Court in Green (at paragraph 25)
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable (person) in the defendant’s position would have foreseen that (his) conduct involved a risk of injury to the plaintiff or to a class of persons including the person. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable (person) would do by way of response to the risk. The perception of the reasonable (person’s) response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibility which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable (person) placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.”
- [14]I am also mindful of what has been said in cases such as Francis & Ors v Lewis [2003] NSW CA 452 about the peculiar nature of stairs and the need for persons using stairs to take care for their own safety (see also the cases cited at the paragraphs [23] and [24] of Green).
- [15]I am satisfied on the basis of the plaintiffs evidence and the other evidence which I have preferred that the defendant ought reasonably to have know, that a person such as the plaintiff being unfamiliar with the premises might visit a person in Unit 4 and use the steps as a means of egress in circumstances in which they provided direct access to a persons car if that person had parked where Mrs. Wickes parked on this night The Defendant ought reasonably to have foreseen that there was a risk of injury to a person in these circumstances particularly at night because of the state of the stairs and the defendants failure to provide adequate lighting. The risk was not insignificant; or to use the words of Mason J, was not far fetched or fanciful. The evidence clearly establishes that very simple inexpensive responses, e.g. placing a pole light in a position to actually light the path, or doing what the defendant did later that year; namely removing the steps and landscaping the area so as to ensure it would not be used for access or egress by visitors; would have completely obviated the risk of injury to a person visiting unit 4 from the east.
- [16]In my view, the Defendants submission, which is in effect, that the plaintiff should have turned around, as it were, in mid-flight, when she realised that she could not see the bottom three steps, is entirely unreasonable and does not accord with what happens in the real world. I accept that she simply wasn’t aware of the alternative point of access and certainly there was nothing to alert her at the steps as to the existence of an alternative route.
- [17]I am satisfied that the Plaintiff has proved particulars (g) (h) and (i) of paragraph 7 of her amended statement of claim, and I find that the defendant has failed to prove that the plaintiff either voluntarily assumed the risk of falling, or contributed to her own injuries by her own negligence. Mr Kelly urged me to take a similar approach to that taken by His Honour Judge Robin QC in De Candia v Holmes [2005] QDC 242 a case in which the plaintiff had been injured while leaving the back door of a relatives private home at night by means of a ramp. His Honour found that the Plaintiff and Defendant had contributed equally to the Plaintiffs injury by their own negligence. In my view, the case is distinguishable on many grounds not the least being that the Plaintiff in that case had used the ramp at night on earlier occasions, and appears to have deviated from the path which is not what occurred here. I accept Mr Morgan’s submission to the effect that because of the nature and positioning of the steps, and the inadequate lighting, the plaintiff here was lulled into a false sense of security, which clearly was not the situation in DeCandia.
QUANTUM
- [18]The plaintiff filed a second amended statement of loss and damage at the start of the hearing. The only aspect of her claim that is not the subject of dispute is her claim for special damages of $1978.49 and interest on that of $334.76. She claims $103,714.10 for past economic loss (down to $20,000 in Mr Morgan’s final submission) and associated interest and loss of superannuation benefits; $18,000 for general damages; $9000 for future specials (down to $3000); past gratuitous care $104,538.11 (down to $30,000) with interest; and future care of $139,181.95 (down to $10,000); and future economic loss of $40,000. Clearly the claim as pleaded exceeds this courts jurisdictional limit. I will deal with each head of claim.
GENERAL DAMAGES
- [19]Mrs. Wickes’ claim is advanced as a multiple injury claim, so ss 3 and 4 of the Civil Liability Regulation 2003 apply. She was taken to Nambour General Hospital and only the left wrist fracture was identified and her wrist was placed in a cast. She spent the night in hospital and on the 13 January 2003 she returned to the hospital and an x-ray revealed a fractured trapezium in her right hand which was placed in a short arm cast. The left wrist fracture slipped and had to be reset on the 24 January 2003 when a buttress plate was inserted during surgery and again she spent a night in hospital.
- [20]The report from the hospital (Exhibit 16) indicates that the right forearm was immobilised for a total of 5 weeks following which the trapezium fracture was healing well with only mild residual stiffness. The left arm cast was removed on 3 March, and she was referred to physiotherapy to assist with stiffness in the wrist.
- [21]The hospital records indicate that she attended regularly for occupational therapy until 6.11.03. The notes indicate progressive improvement although on her last visit she reported that she was still experiencing some difficulties with repetitive tasks such as chopping vegetables and her left wrist scar (from the surgery) was still hypersensitive if bumped.
- [22]She also received treatment from her own G.P. Dr Allan Burr during this period and his report is Exhibit 13. He did not give evidence in person.
- [23]There was some emphasis in the Defendants case on Dr Burrs report to the effect that:
“On examination on 7-4-03, the (R) hand had a full range of movement with no tenderness. There was tenderness and mild swelling over the anterior and posterior (L) wrist. There was decreased (L) palmar flexion and dorsiflexion. There was decreased grip strength in the (L) hand. When seen on 6-5-03 Mrs.. Wickes stated that her (L) wrist had improved further, that she had no pain with normal activities, only with heavy lifting, and that she was able to drive without pain. On examination on 6-5-03, there was no tenderness or swelling in the (L) wrist. Mrs. Wickes has 30 degrees pf palmar and dorsal flexion on either direction. There was loss of about 50% of ulnar flexion and a minimal amount of radial flexion. Mrs. Wickes was unable to do her normal work duties from the time of the accident until 7-4-03. She was able to do limited work duties from 7-4-03 to 6-5-03 and full work duties thereafter.”
- [24]This is because one of the main ongoing complaints made by her is the difficulty she says that she has in driving long distances because of weakness and discomfort in her left wrist. She explained that when she told Dr Burr on 6.5.2003 that she “was able to drive without pain” she was then referring to short trips to the shops and not longer trips associated with her work.
- [25]She was able to return to light duties as a social worker or family worker with the Sunshine Cooloola Services against Sexual Violence on 7.4.03 to 6.5.03 when she returned to full duties.
- [26]She has been assessed by a number of orthopaedic specialists for the purposes of these proceedings. At the request of her own solicitors she has been assessed by Dr Pentis and Dr Gillet, and Dr Milroy assessed her on behalf of the defendant.
- [27]Dr Pentis examined her initially on 29.07.2003 but opined that as the left wrist was still healing he would not give a final opinion until her condition had stabilised. She was next seen by Dr Gillet on 10.05.2004. At that time, her right wrist was normal with a full range of movement of the wrist and no associated pain or discomfort. As regards to the left wrist he said this (In Exhibit 18):
“She is left with an impairment of upper limb function of 16 percent using the AMA 5th edition guidelines, upper limb chapter, range of motion tables. This assessment is combined with minor sensory loss. This equates to an impairment of bodily function of 10 percent. She has a pain impairment score, using chapter 18 of a moderate degree and no uplift is required regarding the pain impairment score using the criteria Chapter 18. Her condition is stable and stationary. She will have ongoing discomfort and problems associates with the daily living, recreation and employment as she has at present. She will be able to accommodate the condition putting up with pain and discomfort and generally living with the condition. I do not anticipate she will require surgery as described above or have progressive degenerative osteoarthritis of the wrist.”
- [28]She was next seen by Dr Milroy who, unlike the other doctors, is an orthopaedic surgeon specialising in surgery of the hand and upper limb. He saw her on 25.1.07. He had available to him x-rays of the wrist from 2003, 2004 and one taken on 22.1.07. His opinion (expressed in answer to a question posed by the defendants solicitors) is :
“ I have referred to the Guides to the Evaluation of Permanent Impairment, 5th Edition Medial Associate Figures 16-28, 16-351, 16.37 Left Upper Extremity- There is a permanent impairment of 2% of the left upper extremity which is equivalent to 1% of the whole person (Table 16-3). Right Upper Extremity- There is no measurable permanent impairment. Therefore there is 0% whole person impairment due to the injury of the right wrist person (Table 16-3). There are no relevant pre-existing injuries to contribute. I have considered her age and life expectancy.”
- [29]She was seen again by Dr Gillet (I assume) just prior to his final report dated 20.8.07 (Exhibit 24). At this time he had access to Dr Milroy’s report. His opinion is:
“Her condition has improved from my previous report in relation to motion but she still has some restriction of motion in the left upper limb. Her right upper limb has recovered and she has no residual problems from it. I cannot correlate the swelling that she describes in the left forearm related to this accident. The residuals from the accident reflect the symptomatology associated with the left wrist area. In relation to measured impairment assessment is made with reference to chapter 16 of AMA 5. With regard to range of motion, based on today’s measured assessment with goniometry, reference is made to figure 16-28, 16-31 and 16-37. She has 4% impairment of upper extremity function utilising that methodology. This equates to 2% loss of whole person function. There is no sensory anomaly and no measured impairment associated with that. The ongoing difficulties that she describes in daily life, recreation and her employment in relation to her left upper limb are consistent with the sequelae of the accident and will be ongoing. As time has progressed she has improved from the previous examination by me with regard to range of motion. She is left with residual symptomatology. She will not require surgery.”
- [30]Dr Pentis saw her finally on 11.9.07 when (I assume) he had copies of Dr Milroy’s report and the reports of Dr Gillet although he makes no reference to them. He opined that she will be predisposed to arthritis in both limbs, and he suggests that surgery to remove the plate in the left wrist may be necessary in the future. He says:
“What can be said at present is that she has been left with a residual incapacity and impairment which will be permanent. The incapacity in the thumb would be approximating 5% loss of the efficient function of the affected upper limb. The incapacity in the wrist would be approximating a 15% loss of the efficient function of the affected upper limb on the left side. With respect to using the AMA 5th edition Guidelines, the thumb injury would be a 1-2% whole person impairment and the wrist injury would be a 4-5% whole person impairment using table 16.18”
- [31]Dr Milroy also provided a proof of evidence which forms part of Exhibit 22. In cross-examination Dr Milroy said he would not argue with Dr Gillet’s most recent assessment, although he expresses surprise at the level of impairment assessed by Dr Gillet in his May 2004 report. Both Dr Gillet and Dr Milroy disagreed with Dr Pentis that the plaintiff would suffer arthritis in her left wrist. They based their opinions particularly on the x-ray of 25.1.07 which was over 4 years after the incident. I found Dr Milroy’s evidence very persuasive. He told me that the absence of any signs of arthritis so long after the injury and particularly the good nature of the bone surface would be against future onset of arthritis.
- [32]Overall, I prefer the more or less joint opinion of Drs Milroy and Gillet to that of Dr Pentis.
- [33]It follows that I accept that she now has a 2% whole person impairment of the left wrist and a 0% impairment of the right hand.
- [34]She does have a visible healed scar which I observed during the hearing which I accept can be sensitive if bumped.
- [35]I accept Mrs. Wickes evidence that she still experiences some symptoms in the left wrist which she describe as hurting if she drove distances, and weakness and discomfort with repetitive tasks such as vacuuming and some kitchen tasks such as grating. She does not have to use pain killers and puts up with the inconvenience.
- [36]Mr Morgan also relies on a report of clinical psychologist Steve Brimstone. He did not undertake a PIRS (psychiatric impairment rating scale) assessment. He assessed her over 3 visits in August /September 2004. On the basis of his clinical assessment and self reporting he opines that she has “a psychological/psychiatric condition as defined by DSM-IV for 5-6 months post accident of an Adjustment Disorder with mixed emotional features (namely tension and depressed mood) mild intensity impairment, acute.” Mr Morgan submits that I can take this into account in assessing the ISV pursuant to s 3 of the Regulations. The condition is a “mental disorder” (see definition in schedule 7); however in the absence of a PIRS rating s 6 would not apply. Mr Morgan relies on s 13, however that seems to apply only where there are competing reports (PIRS and otherwise) relating to “permanent impairment caused by a mental disorder”. He did not refer to s 9 which does seem to provide a very wide discretion to a court in assessing an ISV however I hold that because the Regulation specifically deals with mental disorders, a mental disorder which does not have PIRS rating should not be taken into account as “other matters” when assessing the ISV.
- [37]It follows that in assessing the ISV here, the dominant injury is the left wrist impairment which falls within Item 107 namely a moderate wrist injury. Mr Morgan also referred to 113 and there is obviously a degree of overlap but I prefer 107. The other injuries are item 108 for the right thumb injury and item 155 for the scar to the wrist. As Mr Morgan correctly submits, the AMA scales, which must be used by doctors to assess whole person impairment (s 11), do not assess the degree of disability which may be affected by more subjective considerations. Doing the best I can, I assess the ISV for the multiple injuries at 12 i.e. less than the maximum dominant ISV of 15. It follows that the calculation of general damages is governed by s 62(c) and amounts to $13,800.
ECONOMIC LOSS
- [38]Mrs. Wickes clearly lost income from the date of the accident until her return to work on light duties on the 7.4.03 and full duties on 6.5.03. Her Nett average weekly wage at the time was $644.88. She then completed her contract with the Sunshine Cooloola Service on the 30.11.03. Although she was qualified to do that job and probably would have had the job renewed (according to her then manager Karen Aspinall) she did not apply. Mrs. Wickes has an indigenous heritage and her work with this service was especially directed to working with indigenous clients. There is no dispute that the service covered a very wide geographical area from Caloundra to the south, Gympie to the north and Kenilworth to the west. Generally, her duties required her to work from the Maroochydore office for 2 days a week, and from Gympie for 2 or 3 days. A lot of time involved field work which involved home visits. She told me that the difficulties with her wrist when driving the long distances associated with her work, was the primary reason for not renewing her contract. For some time after the plaster was removed she wore a wrist brace for strength and mention is made of this in the hospital notes in the occupational therapy clinic e.g. 18.8.03.
- [39]She returned to study at the beginning of 2004. During this period she did some work as a counsellor for the Alcohol and Drug Foundation Queensland.
- [40]Her claim for past economic loss is made on the basis that she has lost income as a direct result essentially of the ongoing problems with her left wrist. Not surprisingly, neither Dr Gillet or Milroy suggest that there is any physical reason why she should not be able to work as a social worker.
- [41]After completing an Honours degree in Arts at the beginning of 2006, which related to the history of Aboriginal people, she has decided to complete a Masters in an associated topic. It was clear to me that she is passionate about these issues which are important as empirical knowledge of discrimination of Aboriginal people in Australia’s past. She hopes now to pursue an academic career.
- [42]It seems to me that the most significant factor impacting on her claim for past (and indeed future) economic loss is her income as a private counsellor in her own business from an office especially constructed at her home by her husband for this purpose. This was commenced by him in March 2003, so it was clearly contemplated within a few months of the accident that she might go into private practice. In the financial year ending 30 June 2005, at a time when she was studying and receiving Abstudy, she was able to earn gross $42,500 nett $27,973 from her business. As she accepted, although the business was conducted from home, it did involve driving albeit not long distances, as a deduction of $2605 was claimed for use of her car. When it is considered that this was not full time work it is clear that at least by 1.7.04 she was well and truly able to earn more than she was earning at the time of the accident.
- [43]She frankly acknowledged that after her husband retired in 1998 they decided to move to the Sunshine Coast as a lifestyle decision. She qualified as a social worker in 1997 and she accepted that after working as a social worker in Brisbane, upon coming to the Coast she took time off to spend with her husband. The job with Sunshine Cooloola Services was her first full time job on the Sunshine Coast and she had only been in that position for a month when she was injured.
- [44]I find that it is more probable than not that she did not renew her contract in November 2003 partly because of her driving difficulties but also because of choices she had made to continue studies and to earn income as a private practitioner.
- [45]It follows that she is entitled to be fully compensated for the loss of wages from the date of her accident until her return to work and I will allow her a further period up to 1 July 2004 when she started to earn from the business. Taking into account the monies received in that time and discounting for the fact that she was able to earn income as a private practitioner if she chose to do so, I will allow a global sum of $15,125 which I have calculated by allowing her 25 weeks inclusive of her time off work at the nett weekly wage she was earning when injured. She is entitled to interest on that sum at 3.25% for 3.8 years which is $1,819.19. My assumptions for making this calculation which is imprecise are set out above: s 55.
- [46]For the reasons I have enunciated she is not entitled to any award for future economic loss.
GRATUITOUS SERVICES
- [47]This head of damages is governed by s 59 of the Act. The plaintiff must reach the threshold set out in s 59(1)(c) otherwise an award cannot be made. The defendant appears to accept the correctness of His Honour Judge McGill’s interpretation of the threshold in Carrol v Coomber and Anor [2006] QDC 146 [at 66]. As with most issues in this case, the parties could not agree on anything, even the accepted hourly rate for such services. The plaintiff claims an hourly rate of $24.96 based on the evidence of Mr Hoey an occupational therapist whose report is Exhibit 45. As demonstrated by the report and elucidated by Mr Kelly in cross-examination, Mr Hoey’s estimate of $24.96 is based on the Queensland disability support workers award i.e. commercial rates in the market place. Mr Hoey agreed that there are lower rates paid even in the marker place and that to provide these ordinary everyday domestic services does not require any particular training. The defence would have agreed to an hourly rate of $16. I will proceed on the basis of $18 per hour. This approach accords with the conservative approach taken by courts in the wake of Griffiths v Kerkemeyer (1977) 1389 CLR 161 which is described fully in Judge Robin’s judgment in Di Candia at pages 33-34 where His Honour quotes extensively from Hodges v Frost (1984) 53 ALR 373 at 380.
- [48]There can be no doubt that during the period Mrs. Wickes had both arms in plaster she was prevented from doing all domestic tasks. Her husband stepped in and took over most of the duties including cooking, washing and house cleaning and he was also required to dress his wife and assist her with showering and toileting. By the 3rd March, both plasters were removed although clearly there would have been a period of time thereafter when she would have required help particularly in tasks involving lifting and repetitive movements of the arm. What has to be remembered is that Mrs. Wickes is right hand dominant, a factor seemingly ignored in cross-examination and surely relevant to her claims of still having difficultly chopping vegetables, and even in long distance driving. During the first (3) months a lot of other people (including her mother and other relatives) rendered assistance. The claims that were made in the amended Statement of Loss and Damage are clearly excessive, and have been substantially modified in Mr Morgan’s final submission.
- [49]s 59 takes up some of the reservations in the common law including the requirement that the services are necessary i.e. as Gibbs J (as His Honour then was) observed in his judgment in Griffiths v Kirkemeyer (at 164), the services must go beyond the mere arrangement of domestic chores or the tender attention to comfort that can be expected in an affectionate environment. This is particularly relevant here in circumstances in which Mr Wickes, an obviously robust and healthy man, was retired at the time of the fall. Mrs. Wickes estimated that her husband spent 8 hours a day in the initial stages, he estimated 10 hours i.e. 70 hours a week. It is clear from some of the extracts from his diary at the time (Exhibits 47 and 48) that Mr Wickes’ memory as to how much time he spent in the early period is faulty. It is clear from those notes that a lot of friends and family were pitching in to help which is part of the normal reaction of close friends and family to a challenge such as this.
- [50]I am satisfied that extensive assistance was necessary in the first few weeks, and that after the plasters were removed the need for services reduced significantly to a point where such services were no longer necessary because of her improved functioning. Mr Wickes says that he does all the driving still. I infer that he means the long drives on holidays etc and not everyday driving which clearly she manages as evidenced by her claim in the 2005 tax return.
- [51]I am satisfied that Mrs. Wickes has met the thresholds in s 59(c)(i)&(ii) however I intend to discount her claim for past services to reflect my findings and reasoning set out above. I will award $20,000 for past care but make no award for future care. I will allow interest on that sum at 3.525% for 3.8 years which is $2,636.51. In adopting that interest rate and that period of time, I have had regard to s 60 of the Act and Exhibit 25 and the fact that the trial should have proceeded on the 2.10.06. It was adjourned on that occasion back to the call-over and the plaintiff was ordered to pay the defendants costs thrown away as a result, so clearly the adjournment was necessary because of some default on the part of the plaintiff. She should not therefore get any benefit for the interest on past economic loss and services for the 1 year (approx) intervening period. After receiving a copy of the draft judgment and for the first time, Mr. Kelly informed me that the specials interest rate is not, in fact, agreed because the plaintiff has not actually paid $706.00 to the Nambour Hospital and the HIC refund of $109.65. He also relies on my decision to allow interest on other heads of damages for 3.8 years because of the 2008 adjournment. Mr. Morgan does not dispute that the interest as amended would be $155.76.
- [52]The award should therefore be:
General damages | $13,800.00 |
Past economic loss Interest | $15,125.00 $ 1,819.19 |
Past Superannuation | $ 1,242.00 |
Special damages Interest | $ 1,978.49 $ 155.76 |
Past care Interest | $20,000.00 $ 2,636.51 |
| $56,756.95 |
- [53]I will hear the parties on costs.