Nicholls v Telstra Corporation Ltd
[2007] QDC 340
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Nicholls v Telstra Corporation Ltd[2007] QDC 340
- Add to List
Nicholls v Telstra Corporation Ltd[2007] QDC 340
Nicholls v Telstra Corporation Ltd[2007] QDC 340
DISTRICT COURT OF QUEENSLAND
CITATION: | Nicholls v Telstra Corporation Ltd & Anor [2007] QDC 340 |
PARTIES: | JENNIFER ANNE NICHOLLS Plaintiff AND TELSTRA CORPORATION LIMITED First Defendant AND BRISBANE CITY COUNCIL Second Defendant |
FILE NO/S: | BD67/05 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 19 December 2007 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2, 3, 4 April; 21 May 2007 |
JUDGE: | Tutt, DCJ |
ORDER: | Judgment for the plaintiff against the defendants in the sum of $52,895.95 for damages and I shall hear the parties further in respect of costs. |
CATCHWORDS: | Personal injury – where plaintiff riding her bicycle on footpath and fell into uncovered Telstra pit – where plaintiff sustained injuries to her front teeth, shoulder and neck – breach of duty of care owed to pedestrians and footpath users – liability of Telstra as owner of pit and Brisbane City Council as entity responsible for footpath maintenance considered – mixed industrial and residential usage of area – quantum of damages considered – claims for past and future gratuitous services – contributory negligence of footpath user. Brodie & Another v Singleton Shire Council: Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Webb v South Australia (1982) 56 ALRJ 912; 43 ALR 465. Wyong Shire Council v Shirt (1980) 146 CLR. Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200. Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155. Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492. Ryde City Council v Wendy Joyce Smith (2003) NSWCA 57. Telstra Corporation Ltd v Bisley (2005) NSWCA 128. Staines v Commonwealth of Australia (1990) 100 FLR 242. |
COUNSEL: | Mr T Matthews for the plaintiff. Mr R A I Myers for the first defendant. Mr A M Musgrave for the second defendant. |
SOLICITORS: | Bennett & Philp for the plaintiff. Deacons for the first defendant. King & Co for the second defendant. |
Introduction:
- [1]The plaintiff is a 48 year old married woman who claims damages for personal injury and consequential loss suffered by her as a result of the alleged negligence and/or breach of duty of the first defendant and/or second defendant when she was riding her bicycle along a suburban footpath in Acacia Ridge Brisbane when the front wheel of her bicycle fell into an uncovered pit causing her to fall from the bicycle onto the footpath.
The Facts:
- [2]The plaintiff’s evidence essentially is in the following terms:
- on 17 January 2002 at “7.05 pm“ she was riding her “pushbike“ with her husband along the left-hand or inbound side footpath of Beaudesert Road, AcaciaRidge;
- when she was adjacent to Lot 1121 on the western side of Beaudesert Road the front wheel of her bicycle “fell down a hole” in the footpath and she “went over the handle bars” and fell onto her face sustaining injuries to her front teeth, shoulder, and neck;[1]
- an ambulance was called and the plaintiff was taken to the PrincessAlexandraHospital for treatment;
- the following day John Alfred Nicholls (“the plaintiff’s husband”) took a series of photographs[2] showing the accident site revealing a depression in or about the centre of the footpath between the boundary fence to the left and the kerb alignment to the right facing north and a further photograph “a couple of days later” when the hole in the footpath had been repaired and covered with “a new concrete lid”.[3]
- [3]The evidence is that the front wheel of the plaintiff’s bicycle fell into a pit owned by the first defendant, Telstra Corporation Ltd,[4] located on the western footpath of Beaudesert Road, for which the second defendant, Brisbane City Council, accepts that “it has a general overarching responsibility to maintain (that footpath)”.[5]
- [4]Mr Reseigh (“Reseigh”), the team manager of the first defendant “inspected pit near 1121 Beaudesert Road, Acacia Ridge” and found “lids broken in bottom previously, vehicle tracks on footpath, possibly truck, no previous guards evident” and took photographs of the location and the pit.[6]
- [5]Following his inspection of the incident site, Reseigh prepared an investigation report in which he described the type of pit as a “4 pit” and in answer to the question as to what caused the pit to be in the condition it was when he inspected it, Reseigh stated “lid was broken and in bottom pit. Metal grid was placed over hole. Longish grass in area. Appeared large vehicle may have parked on footpath which possibly caused damage to Telstra pit. See photos.” Reseigh instructed that “urgent” rectification work be completed by one of the first defendant’s contractors and it was anticipated that this work would be completed by “23/1/02”.[7]
- [6]Reseigh gave further evidence that when he inspected the pit on 18 January 2002 (the day following the incident) he saw that the original concrete lid of the pit was broken and the pit contained “various bits of rubbish –you know, like paper – some dirt and there was some grass, etc that had obviously fallen in there. So it was a mixture of, you know, several different things plus the lid as well.”[8] Reseigh also stated that he had inspected “probably easily a hundred…broken lids…in 27 years on these types of installations”[9] and that in his experience the longer any broken pieces of lid are in a pit they become “a bit discoloured”[10] and the concrete lid inspected in this pit on 18 January 2002 “was discoloured and had dirt, etc, in it”.[11]
- [7]Reseigh had also noted on the copy photograph Exhibit 8C attached to his investigation report “broken pits lids have been laying in bottom of pit for some time”.[12]
- [8]Reseigh also gave evidence that on his inspection he noted:
- what appears to be “track marks” on either side of the pit location which may have been caused by a large vehicle or vehicles parking or moving over the footpath area at that point;
- that he did not “recall” there being “any No Standing signs or No Parking signs in the vicinity of this pit.”;[13]
- that in respect of the length of the grass in the vicinity of the pit “definitely the grass around the pit there was longer than as to the other areas” but he did not have any recollection whether the grass in that area had been recently mown;[14]
- that although the first defendant has millions of these types of pits throughout Australia[15] there are “geographical” areas for which a particular depot of the first defendant has responsibility and “these regions are based on the exchanges”.[16]
- [9]The plaintiff’s husband gave evidence that he accompanied the plaintiff on his bicycle on 17 January 2002 and he is a regular cyclist in that area as he regularly rides his bicycle from his home to work along that route and also takes his dog for “a 5km run every afternoon”.[17] On the evening in question he estimates that it would have taken “about 10 minutes” to cycle from his home to the location of the incident and that he was riding “about 20, 30 metres in front of her with the dog”[18] in the “right‑hand side track”,[19] that is the track nearest to the kerb of Beaudesert Road.
- [10]The plaintiff’s husband gave the following further evidence:
- his estimate of the time they left home was “about 20 to 6(P.M)”;
- the incident occurring when he “heard the thud … looked around …” and saw his wife “laying on the ground”;[20]
- he subsequently telephoned the ambulance and his daughter;
- his estimate as to the time when the ambulance arrived as “20 to half past 6”;[21]
- that “… when the ambulance turned up … it was just going on dark and then it was dark when the ambulance turned up”;[22]
- that when the plaintiff had her fall “… it was light because I don’t go riding my bike with my dog at night cause it’s too dangerous”;[23]
- the following day he took photographs and in his description of the length of grass in the vicinity he stated “it was just long grass and it had two tracks down either side (of the hole)”;[24]
- that he had been riding this route “easy 10, 15 years” and during that period he had noted from time to time and particularly in the period “Christmas 2001/January 2002 … machinery trucks, cars parked there because they were working in that area”;[25]
- that in the years that he had ridden along this footpath he “did not know there was a Telstra pit there … never seen it in my life until the day she fell in the hole”.;[26]
- that the distance between the worn tracks on the footpath at that point was “2 ½ metres”.[27]
- [11]Evidence was given by Mr Staude, operations manager for the second defendant’s grass cutting contractor for the area where the incident occurred, who stated that:
- he was the person “detailed to undertake the mowing at that time in about January 2002” on Beaudesert Road, AcaciaRidge;
- he “personally performed” the mowing of that section of Beaudesert Road, Acacia Ridge as depicted in Exhibits and 37 respectively and described in documents numbered 6 and 7 of Exhibit 34, on 2 January and 21 January 2002;[28]
- he did not have “any recollection” of seeing the metal grate depicted in Exhibit 17 on the footpath on 2 January 2002 nor did he recall seeing any “hole in the grass” as is depicted in Exhibit;
- as part of his duties as an employee of the mowing contractor he would move any obstacles in his path during the course of a mow including “rubbish … cans or bottles or things of that nature.”;[29]
- in that section of the footpath depicted in Exhibit 17 he would have made four passes in the course of his mowing that section travelling at a speed of “10-12 kilometres an hour”.[30]
- [12]In cross‑examination Mr Staude conceded by reference to Exhibit 37 in particular he was not obliged to mow the grass adjacent to Lots 1121 or 1123 on Beaudesert Road but from a practical point of view if the blocks were bordered by “a continuous chain wire fence … I would continue to do the whole block because it doesn’t make sense to do half a block”.[31]
The law:
- [13]While the principles of each defendant’s duty of care to the plaintiff may be separated, in that in a strict sense, the first defendant is not the highway authority responsible for that section of Beaudesert Road, Acacia Ridge, and the second defendant is in a similar position but accepts responsibility for the maintenance of the footpath, the duty of the respective defendants to users of the footpath was succinctly stated in Brodie & Another v Singleton Shire Council: Ghantous v Hawkesbury City Council (2001) 206 CLR 512 paragraph [150] (“Brodie and Ghantous”) per Gaudron, McHugh and Gummow JJ that:
“Authorities having statutory powers of the nature of those conferred upon councils by the Local Government Act[32] to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of those powers or failure to exercise them does not create a foreseeable risk of harm to road users. Where the state of a roadway, whether from design, construction, works or non-repair, poses a risk to road users, then to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk is unknown to the authority or latent and only discoverable by inspection, to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.”
- [14]At paragraphs [53] and following of Brodie and Ghantous Gaudron, McHugh and Gummow JJ also referred to submissions made in respect of the previously held “…‘immunity’ conferred on ‘highway authorities’ in decisions of this Court decided in 1936 and 1950 respectively” and in paragraph [54] quoted the dicta of Mason, Brennan and Deane JJ in Webb v South Australia[33]:
“The question then is: What is the response which the reasonable man, foreseeing the risk, would make to it? Is the risk so small that a reasonable man would think it right to neglect it? In Wyong Mason J said[34]: ‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have.’…The respondent created the danger by its artificial construction in the highway. In this situation the application of a reasonable standard of care calls for the elimination of risk of injury to users of the highway presented by that artificial construction, the more so where elimination of the risk can be achieved without undue difficulty and expense. It is well established that it is the duty of highway authorities to keep:’ … the artificial work which they [have] created in such a state as to prevent its causing danger to passengers on the highway which, but for such artificial construction, would not have existed, or, at least, of protecting the public against danger …’[35] It would not be right or reasonable for a highway authority to ignore a risk of injury which it has created by its artificial construction in the highway, if it entails a possible risk of injury to pedestrians which, though small, is not fanciful or farfetched.”
- [15]Further at paragraph [161] their honours said:
“Not all failures to repair will create risks to the users of a road, or at least not risks which would, as a matter of the reasonably foreseeable, pose a risk of injury. Although it has been said many times that the digging of a hole in a roadway constitutes an actionable misfeasance, the size and location of such a hole may vary and must be considered when determining, on the facts of the particular case, whether it will reasonably foreseeably lead to injury or harm to a user of the road. Depending on the conditions of the road, a ‘hole’ caused by removal of a portion of the road surface may not pose any foreseeable risk to cars; signs may provide adequate warning against whatever risks it poses to motor-cyclists or cyclists. On the other hand, a trench in the roadway, whether arising from active digging or decay of the road or structures within it, will more readily give rise to a foreseeable risk of injury, particularly where it cannot easily be seen or avoided by a road user. The nature of the defect, and not the question of whether it arose by action or ‘non-feasance’, should be significant.”
- [16]On the topic of “inspections” at paragraph [165] it was stated:
“Where the danger could not reasonably be suspected to exist, or could not be found except by taking unreasonable measures, generally there will be no breach of duty by the authority. On the other hand, there will be a breach of duty where an authority fails to take reasonable steps to inspect for such dangers as reasonably might be expected or known to arise, or of which the authority has been informed or made aware[36], and, if they are found, fails to take reasonable steps to correct them. In the cases, the danger usually manifests itself in decayed beams or supports of bridges, or drains or culverts, or other structures supporting a road or its surface.”
- [17]Brodie and Ghantous reinforces the principle that road users also have a responsibility to exercise care for their own safety (with some reservations) and referred in paragraph [163] to Callinan J’s comments in his reasons in Ghantous and reiterated that:
“…persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia), or the surrounding area (as in Buckle, where the hole was concealed by grass[37]). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a "trap" or, as Jordan CJ put it, "of a kind calling for some protection or warning" [38]. In Romeo, Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger [39]. Kirby J pointed out in the same case that even an occupier of premises "is generally entitled to assume that most entrants will take reasonable care for their own safety"[40]
- [18]The duty of care required to be exercised by highway authorities vis-à-vis their inter‑reaction with independent contractors which they may engage to carry out certain works was also discussed in the more recent decision of Leichhardt Municipal Council v Montgomery (2007) 233 ALR 200 and while that authority refers at length to the question of “non‑delegability” and its application or not between parties involved in certain contractual relationships with each other for the carrying out of works, Hayne J clearly stated at paragraph [148]:
“In Brodie and Ghantous, the common law rule under which a highway authority was liable for misfeasance, but not for non-feasance, which underpinned this court’s decisions in Buckle[41] and Gorringe v Transport Commission (Tas),[42] was discarded. In Brodie and Ghantous the court heldthat the test for determining a highway authority’s liability was not whether the case was one of misfeasance rather than non-feasance, it was the ordinary test of liability in negligence.”
- [19]I was also referred to a number of other relevant authorities including Rickards v Australian Telecommunications Commission (1983) 3 NSWLR 155; Australian and Overseas Telecommunications Corporation Ltd v McAuslan (1993) 47 FCR 492; Ryde City Council v Wendy Joyce Smith (2003) NSWCA 57; Telstra Corporation Ltd v Bisley (2005) NSWCA 128; and Staines v Commonwealth of Australia (1990) 100 FLR 242.
Counsels submissions on liability:
Second defendant (Brisbane City Council):
- [20]The second defendant admits that it is responsible for the maintenance of the footpath and that its duty of care is to take reasonable care to avoid a foreseeable risk of injury to persons using the footpath.[43]
- [21]The Second Defendant submits that:
- (a)
- (b)it did not know of the absence of the Telstra pit-lid; this allegation is not pleaded against it and further there is no evidence of any complaint having been received about the missing pit-lid prior to the date of incident;[45]
- (c)there is no evidence that the second defendant knew that the pit-lid was missing nor that it ought to have known that it was missing;[46]
- (d)that even if the pit-lid was missing at the time of the incident there can be no liability for the second defendant as it has established a reasonable system of inspection through its mowing contractor whose evidence was that he removes all bottles and other obstructions from his path prior to mowing but did not see the missing pit-lid;[47]
- (e)that in any event there should be a finding of contributory negligence against the plaintiff against whom it is alleged that she was riding her bicycle without a light at 7 pm “… in darkness, or, at the least, twilight was well advanced”;[48]
- (f)as to an apportionment between defendants the second defendant submits that there is no basis upon which any liability should attach to the second defendant and that all liability rests with the first defendant.[49]
First defendant (Telstra Corporation Limited):
- [22]
- [23]The first defendant submits that:
- (a)there is no evidence that it either knew or ought to have known of the broken pit cover and that it was not reasonably foreseeable that the pi-lid was likely to have been exposed to a significant impact which would cause it to break;[52]
- (b)the evidence discloses that the first defendant has the responsibility for “… something in the order of 14 million to 18 million pits throughout Australia” and that it would be “impracticable for there to be any systematic inspection of those pits”;[53]
- (c)it is reasonable that the first defendant responds to any complaints made about pits by way of rectification work as described in the evidence and that this is “an appropriate response to any foreseeable risk”[54] of injury in respect of those pits;
- (d)it relies upon the dicta in Rickards case[55] and that liability for the plaintiff’s injuries rests with the second defendant which has an obligation to control and maintain the footpath which includes the obligation to inspect and as a council should provide suitable pedestrian and bicycle paths for persons using footpaths for either purpose;
- (e)the second defendant ought to have known that it was “a relatively heavily trafficked footpath in a built up area in proximity to a bank and retail outlets”[56] and therefore had an obligation to inspect and maintain which it failed to do;
- (f)in any event there should be a finding of contributory negligence against the plaintiff on the basis that she failed to take reasonable care for her own safety by riding her bicycle at that time in the evening on the footpath as stated, namely in the grassed area between the two worn pathways rather that on either of the pathways.[57]
Plaintiff’s submissions:
- [24]The plaintiff essentially submits that:
- (a)there should be a finding of negligence against both defendants in that the plaintiff fell into a hidden “trap” which was concealed by grass;[58]
- (b)this case can be distinguished from other cases referred to in that it does not concern “obvious hazards such as uneven paving stones, tree roots or holes.”;[59]
- (c)the area in question had been used by heavy machinery;
- (d)it would appear from the evidence that the pit-lid had been broken for some time and that there ought to have been some system in place to inspect the type of footpath in an area such as this where it might reasonably be expected that there would be pedestrians and cyclists using it;[60]
- (e)both defendants have breached their duty of care to the plaintiff and should be held liable; and
- (f)there should be no finding of contributory negligence against the plaintiff.
Findings on liability:
- [25]I make the following findings on liability:
- (i)I am satisfied on the balance of probabilities that the plaintiff sustained personal injury at or about 7 pm on 17 January 2002 when she was riding her bicycle along the western side of Beaudesert Road, Acacia Ridge, Brisbane when the front wheel of her bicycle entered an uncovered pit in the footpath causing her to fall head first onto the footpath;
- (ii)that the plaintiff’s husband is mistaken when he says the incident occurred at approximately at 5.50 pm as his further evidence is that by the time the ambulance arrived at the scene at approximately 6.30 pm it was dark, but this is inconsistent with Exhibit 30 where sunset did not occur until 6.48 pm and civil twilight a further 26 minutes later at 7.14 pm. Further to this there is a notation of the time of the incident at 7.05 pm on Exhibit 15 which is the initial report of the witness Reseigh on 18 January 2002 and it is also noted in the hospital records that the plaintiff was seen at the Princess Alexandra Hospital at approximately 8.30 pm that evening, all of which is more consistent with the incident occurring at the time alleged in the pleadings rather than at any earlier time;
- (iii)that the location of the incident was adjacent to allotment 1121 Beaudesert Road, Acacia Ridge as depicted in the exhibits tendered, particularly Exhibits 7, 8, 17, and 37 respectively;
- (iv)that at the time the incident occurred it was after sunset but before civil twilight and at a time when there was still sufficient natural light to see without the necessity to use artificial lighting;[61]
- (v)that although the grass on the footpath was mown approximately 15 days prior to the incident on the evidence, which I accept, its length at the time of the incident was sufficiently long to obscure the pit in the footpath so that it constituted a “trap” for footpath users at that time;
- (vi)that on the balance of probabilities the pit-lid had been broken for sometime, at least weeks and probably longer, prior to the 17 January 2002 as I accept the evidence of the witness Reseigh as to the broken concrete pieces being discoloured with dirt over them and further evidenced by the photographic exhibits, particularly Exhibit 8C.
(Breach of duty of care by first defendant):
- (vii)that the first defendant breached its duty of care to the plaintiff in that, despite the fact that the evidence is that it may have the control of 14-18 million pits of various dimensions throughout Australia, with some similar to the pit in question in this proceeding, there is further evidence that the first defendant has defined areas of responsibility throughout Australia which are themselves reduced to particular regions for management purposes.[62] Within those regions there is a variety of roadways and footpath areas, some of which are paved while others, such as the location in this proceeding, is a grassed footpath where there is a mix of residential and industrial usage. I further find that the first defendant ought to have known at the very least, that the location of the pit in question was in an area used by heavy industrial machinery and/or trucks which therefore required the first defendant to carry out regular inspections of any such pit location over which it might reasonably be expected that there would be a passage of heavy vehicles or machinery and/or to erect suitable signage to warn of and/or protect so far as possible the presence of the pit from the passage of heavy vehicular traffic over it which had the reasonable likelihood of damage being caused to the pit-lid thereby. More so did the first defendant have such obligations when it had knowledge that broken pit-lids were not uncommon “on these types of installations”[63];
- (viii)that in the alternative to its obligation to inspect and/or to erect suitable signage in an area where it ought reasonably to have known of the presence of heavy vehicular traffic with its potential to cause damage it should have installed a pit cover of sufficient strength to withstand the weight of such heavy vehicular traffic over it, which it failed to do;
- (ix)that in consequence of the above the first defendant is liable to the plaintiff for the injuries she sustained.
(Breach of duty of care by second defendant):
- (x)that the second defendant breached its duty of care to the plaintiff in that being the authority responsible for the maintenance of the footpath it ought reasonably to have known of the presence of the Telstra pit in the footpath and prescribed a regular inspection regime to ensure that the pit did not constitute a “trap” but remained safe for footpath users, by ensuring that it was sealed by a suitable pit-lid at all times, which it failed to do;
- (xi)that the second defendant had a further obligation to ensure that the grass in the area of the pit was mown sufficiently short, particularly during the summer months, to enable the footpath to be inspected to be able to detect hazards and/or traps of the type in question, particularly in circumstances where the second defendant ought reasonably to have known that the area was used by heavy vehicular traffic in a mixed usage area of industrial and residential, which it failed to do;
- (xii)that where the second defendant engaged mowing contractors to maintain the footpath in the area in question, as it did in this instance and where it knew or ought reasonably to have known of the presence of a Telstra pit, it should have prescribed a system of reporting by the contractor to look for and report to it, any hazards and/or traps, of the type in question, for immediate rectification, which it failed to do; not merely rely on the mowing contractor to move any “obstacles” in his path.[64]
- (xiii)that in consequence of the above the second defendant is also liable to the plaintiff for the injuries she sustained.
Contribution between defendants:
- [26]Notices of contribution have been exchanged between the defendants and on the whole of the evidence I find that the liability for the plaintiff’s injury vis-à-vis the first and second defendants should be apportioned 75% against the first defendant and 25% against the second defendant as I find that the primary responsibility to ensure that the pit does not create a hazard or trap from which there is a foreseeable risk of injury to footpath users rests with the owner and installer of the pit and as such the first defendant must accept the greater proportion of blame when injury occurs to such persons.
No finding of contributory negligence against the plaintiff:
- [27]There is also a claim by the defendants for a finding of contributory negligence against the plaintiff. I am not satisfied that the plaintiff was responsible in any way for the injuries she sustained as I find that the incident occurred in daylight hours at a time when the plaintiff was entitled to ride her bicycle on the footpath, in the position she was riding, without her having to anticipate that there would be a hidden hazard or trap in her path, in the nature of an open pit concealed by grass which had grown over the pit opening. I therefore make no finding of contributory negligence against the plaintiff.
Plaintiff’s injuries:
- [28]The plaintiff was seen in the emergency department of the Princess Alexandra Hospital on 17 January 2002 at approximately 8.30 pm where it was reported that “she landed on her face damaging her upper left two incisors, she was not knocked out. She complained at that time of a headache, neck ache, left facial pain and pain in her left shoulder. At that time she was thought to have soft tissue injuries of the shoulder. She was advised to see a dentist in the morning regarding her damaged teeth and was given pain relief and discharged from the hospital. She was subsequently referred to the maxillofacial outpatients department by her local medical practitioner after she complained of ongoing paraesthesia to the left cheek. She was seen by Dr Gary Hoffman in the maxillofacial outpatients department on 30 January 2002 and “At that time he noted that she had chipped teeth, a normal malar prominence, decreased sensation in the left infra orbital nerve, no bony abnormalities, and he had noted that the x‑rays showed no deformity.”[65]
- [29]Professor Monsour examined the plaintiff “for specifically maxillofacial injuries” and provided a report to the court dated 5 December 2003 being Exhibit 4 in the proceedings. He had examined the plaintiff “recently” before his report was prepared. Professor Monsour noted in his report:
- (i)“that the soft tissue compression injury and abrasion almost certainly resulted in some degree of neurotrauma to the substantial left Infraorbital Sensory Nerve emitting onto the facial region in the infraorbital area;”
- (ii)that the plaintiff “experiences some residual tingling suggestive of irregular sensory functions on occasions rather than comprehensive loss of function or anaesthesia in the region;”
- (iii)the plaintiff’s impairment in respect of this aspect of her injuries was “in the order of 5% permanent whole body impairment;”
- (iv)that the plaintiff “sustained comprehensive crown fracture to the left maxillary first and second incisor teeth” and that “she retains a significant aesthetic and functional deficit with the loss of the crown of both of these incisor teeth.”
- [30]Professor Monsour agreed in cross‑examination:
- (i)that the cause of the condition of the teeth pre‑accident at least one of them “… would have required similar treatment regardless of the incident if it were treated optimally;” and
- (ii)that so far as his specialty is concerned and in his assessment of permanent impairment the plaintiff would not be precluded from carrying out ordinary household chores such as shopping, cooking, washing, and cleaning, nor carrying out duties as a school-crossing supervisor.
- [31]The plaintiff was also examined by Dr McNamara on 3 February 2003 one year post incident who stated:
- (i)that the fractures to the plaintiff’s “upper left central and lateral incisor teeth” were consistent with her fall from a bicycle; and
- (ii)that among other things she suffered “a significant aesthetic impact” as a result of the loss of the teeth.
- [32]Dr McNamara suggested two options available to the plaintiff, namely, repair and restoration of the fractured teeth or their removal and replacement “… with a removable denture, bridgework or implants.” He also provided costs estimates for each option but suggested that these estimates should be confirmed by other specialist advice.
- [33]Under cross‑examination Dr McNamara confirmed that the plaintiff’s teeth “were in a very poor state”[66] prior to the incident and that the restoration of the damaged teeth would have needed to be effected at some future time “even without the accident”.[67] Further to this Dr McNamara’s evidence was that although the more expensive remedial option (removal and replacement) was a feasible one because of the incident, whether it was adopted would depend upon the decision of the “individual clinician and patient”[68] but at least the less expensive option of repair of the fractured teeth would be necessary after there had been certain preliminary work carried out “for removing infection in the gums” which was unrelated to the incident. Dr McNamara also provided estimates of costs involved in the remedial work required.
- [34]Dr White, orthopaedic surgeon, examined the plaintiff on 4 February 2003 approximately 12 months post‑incident and reported the following symptoms as provided by the plaintiff namely:[69]
- her discomfort had continued;
- her neck pain was made worse by activities such as lifting her children, housework duties or driving for any distance;
- she was unable to sleep without discomfort. Her neck has been getting worse over the last couple of months. Her left cheek remains numb consequent to the associated nerve injury.
- [35]
- there is no spasm. She did not appear to be tender. With forward flexion she could place her chin to within 3 cm of the chest wall;
- all other movements appeared mildly reduced and associated with complaints of discomfort;
- the power sensation and reflexes of the upper limbs were symmetrical. X-rays taken on the date of incident demonstrated congenital fusion of C-6 and C-7 but no obvious bony injury;
- her facial bones were reported as showing no fractures.
- [36]Dr White’s opinion was that the plaintiff’s “symptoms of which she complains in relation to her neck appear similar in nature to those consequent to low speed rear-end motor vehicle collisions.”[71] Dr White then provided a number of possible scenarios where symptoms persist in persons who suffer such an injury and in particular where “significant symptoms six months post‑injury” persist “a degree of permanent impairment” may be suffered “of the order of five to 10 per cent (5%‑10%) whole person”.[72] Dr White also noted that “on the day of her attendance I would have considered Mrs Nicholls unfit for work involving heavy physical labour or maintenance of the head and neck in fixed positions for extended periods of time.”[73]
- [37]In cross‑examination Dr White agreed that there would be “nothing to preclude” the plaintiff from performing duties as a “traffic control person at the school crossings for an hour and a half or so a day” but that the plaintiff “… may have some discomfort if she is standing still for any length of time or if there is too much head turning.”[74]
Plaintiff’s evidence on her injuries:
- [38]Following the incident the plaintiff’s complaints were:
- pain in face, shoulder (left) and neck;
- cuts and grazes;
- two teeth fractured off at the base.[75]
- [39]The plaintiff described the effect of her injuries in the following manner:
- the appearance of her missing front teeth was embarrassing;
- she covers her mouth a lot when talking to people.
- she previously smiled a lot but now does not;[76]
- that after the incident she “couldn’t hang the washing or vacuum, sweep the floors, clean the bathtub and difficult to make the beds”[77] but her daughter Jamie Lee assumed responsibility for these chores but when her daughter “moved out of home” her two sons “Bradley and Adam did the various chores”.[78]
Plaintiff’s work history:
- [40]The plaintiff’s work history since 1991 is contained in Exhibit 10 which sets out the plaintiff’s “schedule of employers” since that time. She was employed in the capacity of a “tuckshop convenor and “crossing supervisor” in a part-time capacity since 1991 where she earned on the whole, relatively modest amounts per year ranging from $646.00 in 1994 financial year to $5,063.00 in the 1997 financial year. The evidence is that:
- (i)the plaintiff did not work at all between June 1999 and August 2004;
- (ii)the reason for this being that she ceased work to care for her grandchildren, they being the children of her daughter Jamie Lee;
- (iii)at the time the plaintiff ceased work in June 1999 her daughter Jamie Lee was 14 years of age and still at school.[79]
- (iv)the plaintiff resumed work as a “crossing supervisor” in August 2004 with the Queensland Transport Department and works seven and a half hours each alternate week;
- (v)she job shares with another employee who works the same number of hours in the other week;
- (vi)from time to time since she recommenced work in 2004 she has not been able to work her full shift “twice a month – because I get really bad headaches and my neck.”[80]
- [41]The plaintiff’s daughter Jamie Lee gave evidence that following the incident she assisted her mother around the household; that she did “everything from washing to driving her to doctor’s appointments; doing her grocery shopping, vacuuming, cleaning the house.”[81] The witness prepared a “Schedule of Assistance” which became Exhibit 13 in the proceeding which sets out the assistance the witness says she gave her mother since January 2002. It is to be noted that at the relevant time the household consisted of seven people, including the plaintiff and her husband, their three children including the daughter Jamie Lee and her two infant children and the two sons Bradley and Adam.
- [42]Under cross-examination the witness Jamie Lee stated that she left home “the first time” in 2001 for a period of six months and “moved out again in 2004”. The evidence is that Jamie Lee’s children were born on 10 March 2000; 15 June 2002 and 15 October 2005 respectively.
- [43]The witness also stated that after the birth of her second child in June 2002 ( five months post-incident) the plaintiff assisted her with the child and would also accompany her to doctor’s appointments. When asked whether there was anyone else assisting the witness, who stated that she was “doing the cleaning for the whole household” she replied “my brothers are too lazy” and that the witness “was looking after all seven people”.[82] It is to be noted that at the date of the trial the brothers were aged 24 years and 18 years respectively so that at the date of the incident they would have been approximately 19 and 13 respectively.
- [44]Jamie Lee gave further evidence under cross-examination in the following terms:
“Right so in terms of household chores your dad did nothing? – Yes.
And your brothers did nothing? --Yes
The two children you had at that stage did nothing? -- Yes, they were too young.
Yes. And – and so, you and your Mum were doing all of the household chores before the accident? -- Yes, that’s right.
And – what was the – what was the break up between them - how much – how much was she doing as opposed to how much you were doing? -- Well, before the incident she was doing the cook (sic), she was doing the cleaning, I would just help out while I was living there, my children were there I’d help out doing the washing because most of it was ours at the time.
Right? -- So -----
And so you – you kept doing the washing, I take it, on that basis after the accident? --Yes.
Most of it was still yours? -- Yes.
And but what, you had to do some washing – did you – did you also wash your Mum’s and Dad’s clothes before the accident?-- No, I left that to them because – my Dad’s work clothes, my brother’s stuff.
Right. So after the accident you started doing-----?- -Everybody’s.”[83]
- [45]Jamie Lee further stated in cross-examination that even after the incident occurred on 17 January 2002 the plaintiff continued to “help out” with the child, who was then approaching two years of age and continued helping the witness with her children “up until August 2004”[84] at which time the plaintiff returned to her former employment with the Transport Department. Jamie Lee further agreed that during this period she returned to complete her schooling at T.A.F.E. “three days a week – four hours per day and that the plaintiff was “responsible for looking after these two children”[85] in the witness’s absence. She also confirmed that her elder brother is afflicted with epilepsy.[86]
Second defendant’s submissions on plaintiff’s quantum of damages:
- [46]In general terms the second defendant submits that the plaintiff’s damages under all heads should be of very modest proportions on the following bases:
- the plaintiff did not have extensive treatment after the incident and “had significant hygienic issues prior to the fall”;[87]
- her past economic loss is a very small proportion and only the sum of $672 is claimed;
- there is no evidence to support a claim for future economic loss;
- the claim for past and future gratuitous assistance should only attract “a nominal amount”;
- the plaintiff’s special damages should be limited.
First defendant’s submissions on quantum of damages:
- [47]The first defendant submits:
- that the plaintiff is clearly overstating her symptoms (refer Exhibit 22);[88]
- the plaintiff’s claim for past economic loss is of small order;
- the plaintiff’s claim for past and future gratuitous care is not supported by the evidence;
- the award for future dental and medical expenses should be of modest proportions.
Plaintiff’s submission on quantum of damages:
- [48]Generally the plaintiff relies upon the evidence adduced in support of her claim and submits that she is entitled to a substantial award under various heads of damage set out in the schedule tendered for compensation for the injuries and consequential loss the plaintiff has suffered.
Findings on damages:
General damages:
- [49]The assessment of the plaintiff’s damages in this proceeding is not subject to the legislative changes relevant to claims for damages for personal injuries suffered post 18 June 2002 and is therefore to be assessed on the general common law principles applicable to claims arising before that date.
- [50]A summary of the plaintiff’s difficulties and problems has been set out in paragraphs [28] to [39] above and taking all relevant matters into account I assess her general damages for pain and suffering/loss of amenities in the sum of $30,000.00. I allow interest on the sum of $20,000.00 of this amount at the rate of 2% for 5.9 years which amounts to the sum of $2,360.00.
Past economic loss:
- [51]I find that the plaintiff has been restricted to a very limited degree only in respect of her working activities from the subject incident in the light of the medical evidence before me, so that any assessment of damages under this head must necessarily be of very modest, if not miniscule proportions, taking into account the fact that she ceased work in 1999 to care for her grandchild who was born before her daughter reached the age of 15 years and who continued to live with the family and had two more children in June 2002 and October 2005 respectively for whom the plaintiff continued to care while the daughter returned to school. I assess the plaintiff’s past economic loss in the sum of $500.00
I allow interest on this sum at 5% for 3.25 years which amounts to the sum of $81.50.
Past loss of superannuation:
- [52]I allow the plaintiff a past loss of superannuation component calculated at the rate of 9% per annum on her past loss of income of $500.00 that is $45.00.
Future economic loss:
- [53]I do not accept that the plaintiff has suffered any loss of future earning capacity arising from the incident on 17 January 2002 as I consider that all sequelae of the incident have by now resolved insofar as they inhibit, restrict or impair the plaintiff’s capacity to work as a crossing supervisor.
Past gratuitous care:
- [54]The plaintiff claims a total sum of $43,530.00 under this head of damage on the basis that to date of trial the plaintiff was provided with 2,902 hours of gratuitous assistance at an agreed hourly rate of $15 per hour.[89] I have referred to the evidence under this head of damage in paragraphs [41] to [45] above but I do not accept that the plaintiff needed or was provided with anywhere near the number of hours of care claimed, nor from the persons allegedly providing the assistance.
- [55]It was obvious on the evidence and the manner in which the plaintiff presented in court while giving her evidence, that she was the mainstay of her household both before and after the incident and I find that the only assistance the plaintiff received post-incident was from her daughter Jamie Lee who provided some assistance to her mother in the various household chores that the plaintiff was unable to do for herself after the incident, but which she carried out before the incident (my emphasis).
- [56]I base this finding on the fact that the witness Jamie Lee was herself a 16 year old teenager at the date of the incident with one child then aged one year 10 months; was again four months pregnant at this time with her second child born June 2002 and had to rely on the plaintiff’s assistance to look after her then two year old grandchild with the second grandchild born 5 months later. Jamie Lee herself left the household in 2004 at which time the plaintiff returned to work and continued to assist Jamie Lee with latter’s children.
- [57]I do not accept that the plaintiff’s husband nor her two sons Bradley or Adam[90] assisted the plaintiff in any of the household chores post-incident and that the only assistance the plaintiff received post-incident was from her daughter Jamie Lee. After taking into account Jamie Lee’s personal circumstances I find that the assistance she rendered to her mother could only be assessed on a global basis and I will allow a total claim under this head for 350 hours post-incident which therefore equates to a sum of $5,250.00. I will allow interest on this sum at the rate of 5% for 5.9 years which amounts to the sum of $1,548.75.
Future care:
- [58]I am not satisfied that the plaintiff requires any assistance for future care arising out of the incident and I make no allowance under this head.
Special damages:
- [59]I allow past medical expenses as per Medicare notice of past benefits in the sum of $770.95.
- [60]I will allow past pharmaceutical expenses in a global sum of $2,000 as the plaintiff had a history of suffering from headaches for some years prior to the incident but I accept that the incident would have aggravated her condition requiring additional medication for which she is entitled to be compensated.[91] I will allow interest on this sum at the rate of 5% for 5.9 years which amounts to the sum of $590.00.
Future pharmaceutical:
- [61]I allow a global sum under this head of $5 per week for 20 years on the 5% table which amounts to the sum of $3,330.00.
Future dental expenses:
- [62]On the evidence presented I will allow a total amount under this item in the sum of $6,300.00 calculated on the basis that option 1 as set out in Dr McNamara’s report is a reasonable and appropriate option to adopt after taking into account the condition of the plaintiff’s teeth prior to the incident and the dental work which would have been necessary, particularly the periapical surgery, irrespective of the incident.[92]
- [63]In summary I assess the plaintiff’s damages as follows:
Head of Damage | Amount |
General Damages | $30,000.00 |
Interest on $20,000.00 at the rate of 2% for 5.9 years. | $2,360.00 |
Past Economic Loss | $500.00 |
Interest on Past Economic Loss at the rate of 5% for 3.25 years. | $81.25 |
Past Loss of Superannuation | $45.00 |
Future Economic Loss | Nil |
Past Gratuitous Care | $5,250.00 |
Interest on Past Gratuitous Care at a rate of 5% for 5.9 years. | $1,548.75 |
Future Care | Nil |
Special Damages a) Past Medical Expenses b) Past Pharmaceutical Expenses c) Interest on Past Pharmaceutical Expenses at a rate of 5% for 5.9 years. d) Travelling Expenses Total |
$770.95 $2,000.00 $590.00 $120.00 $3,480.95 |
C.F | $43,265.95 |
Future Pharmaceutical | $3,330.00 |
Future Dental Expenses | $6,300.00 |
TOTAL | $52,895.95 |
- [64]I give judgment for the plaintiff against the defendants in the sum of $52,895.95 for damages and I shall hear the parties further in respect of costs.
Footnotes
[1]Exhibits 5, 14, 15 and 37; Trial Transcript (T.T.) p30 line 48.
[2]Exhibit 7A to 7F inclusive.
[3]Exhibit 7G and T.T. p 29 line 5.
[4]Paragraph 2(d) of plaintiff’s amended statement of claim admitted in paragraph 2 of first defendant’s amended defence.
[5]T.T. p 349 lines 47-48.
[6]T.T. p 72 line 35; Exhibits 8 and 14.
[7]Investigation report Exhibit 15.
[8]T.T p 75 lines 40-45.
[9]T.T. p 77 lines 25-30.
[10]Ibid line 42.
[11]Ibid line 55.
[12]T.T. p 77 line 57.
[13]T.T. p 78 lines 25-26.
[14]T.T. p 108 lines 10-15.
[15]Estimate of 14 million.
[16]T.T. p 109 lines 20-25, p 110 line 15.
[17]T.T. p 140 line 60.
[18]T.T. p 141 line 37.
[19]T.T. p 144 line 60.
[20]T.T. p 142 lines 19-24.
[21]T.T. p142 line 45, p 143 line 20.
[22]T.T. p 143 lines 23-25.
[23]Ibid lines 20-30.
[24]T.T p 144 lines 21-25.
[25]T.T. p 145 lines 26-28.
[26]T.T. p 147 lines 11-14.
[27]T.T. p 148 line 3.
[28]T.T. pp 324-327.
[29]T.T. p 331 lines 15-20.
[30]Ibid line 49.
[31]T.T. p 340 lines 20-23.
[32]The then Local Government Act 1919 (NSW).
[33](1982) 56 ALRJ 912; 43 ALR 465.
[34]Wyong Shire Council v Shirt (1980) 146 CLR 40.
[35]Borough of Bathurst v Macpherson (1879) 4 App Cas 256 at 265; Thompson v Brighton Corporation [1894] 1 QB 332 at 339; see also Buckle v Bayswater Road Board (1936) 57 CLR 259 at 283-284.
[36]Hodgson v Cardwell Shire Council [1994] 1 Qd R 357 at 362-363.
[37]Buckle (1936) 57 CLR 259 at 266.
[38]Searle v Metropolitan Water, Sewerage and Drainage Board (1936) 13 LGR 115 at 117.
[39]Romeo (1998) 192 CLR 431 at 455 [52].
[40]Romeo (1998) 192 CLR 431 at 478 [123].
[41](1936) 57 CLR 259; [1937] ALR 50.
[42](1950) 80 CLR 357; [1950] ALR 277.
[43]Paragraphs 22 and 23 of second defendant’s written submissions 15 June 2007. See Fuller v Logan City Council (2006) QDC 305 at [26] —Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Nagel v Rottenest Island (1993) 177 CLR 423.
[44]Paragraph 30 of second defendant’s written submissions.
[45]Ibid paragraph 36.
[46]Ibid paragraphs 59 and 60.
[47]Paragraph 65 of the second defendant’s written submissions.
[48]Paragraph 79 of the second defendant’s written submissions
[49]Ibid paragraph 80.
[50]Paragraph 2 of plaintiff’s amended statement of claim admitted in paragraph 1 of first defendant’s amended defence.
[51]Paragraph 4 of first defendant’s amended defence.
[52]Paragraphs 6 and 7 of the first defendant’s written submissions 21 May 2007.
[53]Paragraph 11 of the first defendant’s submissions.
[54]Paragraph 11 of the first defendant’s submissions.
[55]Paragraph 13 of the first defendant’s written submissions; Rickards v Australian Telecommunications Commission [1983] 3 NSW LR 155.
[56]Paragraph 30 of the first defendant’s written submissions.
[57]Paragraph 33 of the first defendant’s written submissions.
[58]T.T. p 379 and following.
[59]Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Burwood Council v Byrnes [2002] NSWCA 343
[60]T.T. p 382 lines 2-10.
[61]See Exhibit 30.
[62]T.T. p 108 line 55 to p 109 line 36.
[63]Evidence of witness Reseigh see paragraph [6] hereof.
[64]See paragraph [11] hereof.
[65]Exhibit 1, p 1, Dr Batstone’s report dated 17 January 2003.
[66]T.T. p 104 line 2.
[67]T.T. p 104 line 42.
[68]T.T. p 105 line 10.
[69]Exhibit 2, p 1, Dr White’s report.
[70]Ibid p 2.
[71]Exhibit 2, p 2, Dr White’s report.
[72]Ibid.
[73]Ibid p 3.
[74]T.T. p 34 lines 42-50.
[75]T.T. p 31.
[76]T.T. p 38 lines 19-27.
[77]T.T. p 115 line 40-41.
[78]T.T. p 115 line 52-54.
[79]Date of birth 19 March 1985.
[80]T.T. p 40 lines 40-45.
[81]T.T p 59 lines 39-41.
[82]T.T. p 62 lines 24-26.
[83]T.T. p 63 lines 26-56.
[84]The daughter Jamie Lee had 2 children at the time and was then aged only 19 years herself.
[85]T.T. p 69 lines 11-14
[86]T.T. p 69 line 40.
[87]Paragraph 110 of the second defendant’s written submissions.
[88]Medical certificate dated 12 August 2004 accompanying plaintiff’s application for reemployment.
[89]T.T. p 15 line 12.
[90]Neither of the sons was called to give evidence.
[91]See Exhibit 21.
[92]Increases in cost of treatment T.T. p 108 lines 10-20.