Miles v Brisbane City Council
[2010] QDC 501
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
- Appeal Determined (QCA)
- Miles v Brisbane City Council[2010] QDC 501
- Add to List
Miles v Brisbane City Council[2010] QDC 501
Miles v Brisbane City Council[2010] QDC 501
DISTRICT COURT OF QUEENSLAND
CITATION: | Miles v Brisbane City Council [2010] QDC 501 |
PARTIES: | RICHARD KENNETH MILES (Plaintiff) V BRISBANE CITY COUNCIL (Defendant) |
FILE NO/S: | BD 1105/09 |
DIVISION: | Civil |
PROCEEDING: | Trial |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 21 December 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 11-12 October 2010 (Submissions closed 25 October 2010) |
JUDGE: | R Jones DCJ |
ORDER: | 1. Judgment for the plaintiff against the defendant in the sum of $ 103,733.00 as damages. 2. I will hear from the parties in respect of costs. |
CATCHWORDS: | LIABILITY AT COMMON LAW FOR INJURY AT WORK – CAUSATION AND FORESEEABILITY – where plaintiff was employed by the defendant as a bus driver – where plaintiff working alone at night had to leave parked bus – defendant’s policy was that when bus drivers left bus they had to take with them the bus cash box – plaintiff victim of attempted armed robbery – incident took place in overgrown and poorly lit area surrounding bus driver restroom facilities – where as consequence of assault plaintiff suffered personal injuries including psychological sequelae in the form of post traumatic stress disorder – whether the risk of injury to plaintiff was foreseeable – DAMAGES – pain, suffering and loss of amenity – economic loss. TORTS – Negligence – essentials of action for negligence – employer and employee – duty of employer Anderson v Morris Wools Mills Pty Ltd (1965) Qd R 65 Bankstown Foundry Pty Ltd v Braistina(1986) 160 CLR 301 Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors (2006) Aust Torts Reports 81-834, [2006] NSWCA 45. Kondis v State Transport Authority (1984) 154 CLR 672 Czatyrko v Edith Cowan University (2005) 79 ALJR 839, [2005] HCA 14. English v Rogers [2005] NSWCA 327 Fraser v State Transport Authority (1985) 39 SASR 57 Higgins v B & J Carriers (2000) QDC 443 McLean v Tedman (1984) 155 CLR 306 Nelson v John Lysaght (aus) ltd (1975) 132 CLR 201 Nichols v Telstra Corporation Ltd & Anor (2007) QDC 340 O'Doughty v Gold Coast City Council (2008) QDC 195 Sapwell v Lusk & Anor (2010) QSC 344 Vozza v Tooth & Co Ltd (1964) 112 CLR 316 White v Calstores Pty Ltd (2006) QCA 535 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | Mr L. Stephens for the plaintiff Mr M.X. Keogh for the defendant |
SOLICITORS: | Roberts and Kane for the plaintiff Brisbane City Legal Practice for the defendant |
- [1]This case is concerned with a claim by the plaintiff, Richard Miles, for personal injuries and consequential loss and damage suffered by him as a consequence of an attempted armed robbery. It is alleged against the defendant, the Brisbane City Council, that these injuries were caused by its negligence and/or breach of contract of employment with the plaintiff.
Background
- [2]The plaintiff was employed by the defendant as a bus driver. On 28 June 2006, in the course of his employment, the plaintiff was working a shift which commenced at 11 am and was scheduled to finish at about 9 pm that evening. During his shift the plaintiff, at or about 7 pm, had stopped his bus at the Balmoral bus stop located in Byron Street, Balmoral, near its intersection with Apollo Road.
- [3]Located at the end of Apollo Road, approximately 50 to 60 metres from the bus stop, were toilet facilities. These facilities were only accessible to employees of the defendant and were locked to prevent public use. It was not possible for any bus driver wishing to make use of these facilities to park any closer to them because of the manoeuvring capabilities of the defendant’s buses.
- [4]A short time after parking his bus, the plaintiff made use of the facilities. On his return to his bus the plaintiff was attacked by an unknown assailant armed with a piece of timber. The motive for the attack was robbery. At the time it was the policy of the defendant that when bus drivers had to leave the bus, they were required to take with them the bus’s takings.
- [5]As a consequence of the assault, the plaintiff suffered a number of personal injuries and was unable to continue his shift. He was taken from the scene by an ambulance after treatment on site. At the time of the assault, the plaintiff was aged 37.
The allegations against the defendant
- [6]The plaintiff alleges that the personal injuries and consequential loss and damage suffered by him was the result of the defendant’s negligence and/or breach of contract of employment. In essence, the particulars of these breaches are:
- (a)failing to take any or any adequate steps to provide security measures to protect its bus drivers, including from the risk of assault, including:
- (i)failing to provide adequate lighting at the bus stop and between the bus stop and the restroom facilities;
- (ii)failing to trim the trees and bushes at and between the bus stop and the restroom facilities;
- (iii)failing to fence the area at the bus stop and the footpath between the bus stop and the restroom facilities;
- (iv)failing to provide an adequate footpath;
- (b)requiring bus drivers to carry their cashbox when leaving the bus;
- (c)failing to provide a safe or lockable area on the bus for drivers to store their cash tins;
- (d)failing to provide and maintain a workplace in which the plaintiff could work without the risk of assault;
- (e)failing to warn or adequately warn the plaintiff of the dangers which he was or might be exposed to in the course of his work;
- (f)exposing the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care.
- [7]The particulars of the personal injuries suffered by the plaintiff are:
- (a)injury around his right eye and forehead;
- (b)injury to his right upper arm;
- (c)soft tissue injury to his right shoulder;
- (d)psychological sequelae in the form of post traumatic stress disorder.
- [8]Other loss and damage include:
- (a)loss of income;
- (b)loss of earning capacity;
- (c)future ongoing expenses and other special damage.
Liability of the defendant
- [9]The defendant accepts and admits that, as an employer, it owed a duty of care to the plaintiff. That duty being to take reasonable care to avoid the foreseeable risk of injury to the plaintiff. In Wyong Shire Council v Shirt[1] Mason J (as he then was) said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls 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 responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascertained to the reasonable man placed in the defendant’s position.”
- [10]In order for a risk to be foreseeable it does not have to be probable that the risk of injury will occur. It is sufficient that the risk be not far fetched or fanciful.
- [11]In Sapwell v Lusk & Anor (2010) QSC 344 Atkinson J, after referring to the above passage from Shirt, said:[2]
“The duty of an employer to take reasonable care to protect employees from the criminal behaviour of third parties, random and unpredictable as such behaviour may be, was recognised by Gleeson CJ in Modbury Triangle Shopping Centre Pty Ltd v Anzil … . His Honour referred with approval to Chometowski v Redguard Restaurant Ltd …, Public Transport Corporation v Saratori … and Fraser v State Transit Authority … . The employers were, in each of those cases, found liable for the injury to their employees from the criminal act of a third party because of their failure to implement a safe system of work in circumstances where it was foreseeable that their very failure to do so exposed the employee to an increased risk of injury. It is the very nature of the non-delegable duty of care of an employer to his or her employees that give rise to that duty which does not exist in the ordinary neighbour situation where there is no greater duty to prevent third parties doing harm to another.” (citations deleted)
- [12]If there is a real risk of an injury to an employee, in his capacity as an employee, the employer must take reasonable care to avoid that risk by devising and maintaining a method of operation that eliminates that risk, or by the provision of adequate safeguards.[3]
- [13]
“… the employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employees has no choice but to accept and rely on the employer’s provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee’s safety is in the hands of the employer; it is his responsibility.”
- [14]
“(73) The employer’s duty was not absolute. Since, however there was in my view a real risk of injury to the plaintiff in the performance of his workplace task, the employer was required to “take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards” (Czatyrko at [12]). This passage emphasises that it is for the employer to devise reasonably appropriate measures to eliminate the risk. If such measures are not taken and the risk comes home in consequence of the breach, then liability will generally ensue.”
- [15]The measure of care that needs to be taken increases in proportion with the level of risk and harm involved. In Coca Cola Amatil (NSW) Pty Ltd v Pareezer & Ors,[7] (which involved an employee being shot by an armed robber in the course of his employment) after referring to a number of cases, Young CJ (in Eq) said:
“(111) However, one must assess the risk, the remoteness of it happening and the seriousness of its consequences and consider whether what was done or not done in response to it was reasonable or unreasonable in all the circumstances. In this connection, of course, it must be stressed that where there is a risk of extremely serious harm (as in the present case), then it is unreasonable not to take available precautions to prevent it that might otherwise be excused if the possible harm was less serious.”
And in Sapwell (supra) Atkinson J said:
“[73] The reasonable response to such a risk (sexual assault) depends on weighing up the magnitude of the risk, the degree of probability of its occurrence and the expense, difficulty and inconvenience of taking alleviating action. Here there was no conflicting responsibilities. The risk of an employee being assaulted whilst alone is a serious one, particularly of a woman working alone being sexually assaulted. Of course whilst foreseeable, it is not very likely. Nevertheless, the adverse effects of any such assault are serious and ought be guarded against, particularly if it can be done relatively easily and inexpensively.”
- [16]It is neither farfetched nor fanciful that a man working alone at night carrying cash takings (as required by his employer) in a relatively remote, poorly lit, and materially overgrown dead-end area might be assaulted. That there have been only one or two other assaults of bus drivers outside of their buses might be evidence of the fact that the probability of being the subject of an armed robbery and/or assault might be low, does not mean that the risk is farfetched or fanciful.[8] Nor is it an answer to say that there had been no safety concerns expressed by drivers prior to this incident. This responsibility lies with the employer to consider the safety of its employees.
- [17]In describing the plaintiff’s vulnerability as I have, it is implicit that I accept the following evidence of the plaintiff:
- (i)
- (ii)consistent with the defendant’s policy, he was carrying his cash tray;[10]
- (iii)the plaintiff was effectively ambushed, in that the assailant jumped from a bush between the bus stop and the toilet facilities;[11]
- (iv)at the time of the assault the area was poorly lit;[12]
- (v)at the time of the assault the nearest footpath to the bus stop was in many places overgrown with trees and/or shrubs;[13]
- (vi)the plaintiff could not park his bus any closer to the toilet facilities;[14]
- (vii)the area was one where antisocial behaviour took place including drug taking and vandalism.[15]
- [18]I also find that the plaintiff acted reasonably in the way in which he attempted to defend himself. That the plaintiff acted in the way he did, including not simply handing the bus’ takings and his own wallet to the assailant, is not at all surprising given the suddenness of the attack.
- [19]In the written submissions of Mr Keogh (counsel for the defendant) I was referred to the text “The Liability of Employers”[16] and, in particular, to the author’s identification of the elements of a successful action by an employee against an employer:
- (i)that there was a risk of injury which was reasonably foreseeable (the foreseeability issue);
- (ii)that there were reasonable practicable means of obviating such risk (the preventable issue);
- (iii)that the plaintiff’s injury belonged to the class of injuries to which the risk exposed him (the causation issue);
- (iv)that the defendant’s failure to eliminate the risk showed want of reasonable care for the plaintiff’s safety (for the reasonableness issue).
- [20]
“For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task, without unduly impeding its accomplishment.”
- [21]In Bankstown Foundry Pty Ltd v Braistina[18] Mason, Wilson and Dawson JJ, after considering the above passage from Vozza (supra) said:
“This passage has been repeated more than once in recent decisions of the court … . It seems right to us to caution the reader against interpreting the concluding phrase in the citation, that is, ‘without unduly impeding its accomplishment’, as furnishing an additional qualification to an employer’s liability independently of the question of what is reasonable in the circumstances. If protective measures are reasonably open to an employer then ordinarily they will not unduly impede the accomplishment of the task. The extent to which the proposed measures would unduly impede that accomplishment will bear directly on the question whether it was reasonable to expect them to be undertaken.” (citations deleted)
- [22]On behalf of the plaintiff it was submitted that reasonably practicable means of addressing the risk of injury were available to the defendant. The provision of a lockable area on the bus would allow bus drivers to secure the cash tray within the bus when they had to leave it. Another means was for the defendant to adequately check and maintain all bus terminuses and washroom/toilet facilities. It was submitted on behalf of the plaintiff that if this had occurred, it would have resulted in the trimming of trees and bushes in Apollo Road in the vicinity of the facilities and the provision of suitable lighting and fencing and the construction of footpaths. According to the plaintiff, the first option would have prevented an assailant from being a target. The second option would have alerted Mr Miles to the presence of a potential attacker.
- [23]The defendant argues that no reasonably practicable means of obviating the risk existed. The defendant makes this submission on the following bases:[19]
- “(a)The cost of retrofitting all BCC buses to allow for the storage of cash boxes would have been considerable – this extends beyond simply placing a safe on a bus;
- (b)The cost of installing additional lighting and removing all overhanging branches at all bus termini represents an unreasonable requirement of an employer, particularly in circumstances where they are in control of neither lighting nor overhanging trees on private property.”
- [24]
“(85) Trindale and Cain, Law of Tortes in Australia, 3rd ed. (Oxford University Press Bracket) p 594 says, excluding footnotes:
‘Perhaps the most difficult problem that arises in actions in which failure to provide a safe system of work is alleged is that of proving some alternative was practical and reasonable and that it would have prevented the injury. The onus, of course, rests on the plaintiff, and in some cases courts have been particularly harsh on plaintiffs in requiring a high standard of probative material on this issue. There is an element of risk in most industrial operations, even the simplest, and it is not enough for the plaintiff to show the existence of the risk. Plaintiff [sic] must also show that it was capable of reducing or elimination by some practical precaution or safeguard without unduly impeding the employer's business.’
- (86)In Swain v Waverley MC (2005) 79 ALJR 565 at 575, McHugh J said at [40]:
‘The plaintiff bears the legal and evidentiary burden of establishing a prima facie case of negligence. To prove negligence, the plaintiff must be able to point to a reasonably practicable precaution or alternative course of conduct that could have avoided, or reduced the consequences of, the injury of the plaintiff. The plaintiff does not establish a prima facie case simply by asserting that there 'must be' a practicable alternative, and that it is for the defendant to provide evidence that no such alternative exists. The plaintiff does not prove a case of negligence, for example, by proving the existence of the risk and then alleging that the defendant took no precautions to protect the plaintiff against that risk.’
- (87)McHugh J went on to say, instancing Neill v NSW Fresh Food & Ice Pty Ltd (1963) 108 CLR 362:
‘that it was not enough to make suggestions of what might have minimised the risks; rather, evidence needs to be provided of the practicability of those suggestions and, in the absence of such evidence, it is merely a matter of conjecture whether the suggested precautions would have been practicable or not …’.”
- [25]It is clear that this case involved a very unsophisticated attempt at robbery. However, there is evidence that establishes that at the time of the assault the assailant was aware that the plaintiff had, or was likely to have, in his possession bus fare money as well as his own money. The evidence of the plaintiff was that the assailant demanded “the bus money and your wallet”.[21]
- [26]One can only speculate as to the likelihood of the attempted robbery occurring in circumstances where the defendant’s policy was that the bus money was to remain on the bus. To put it another way, the evidence does not establish that had a lockable space been provided on the bus or it was otherwise the policy of the defendant to require bus moneys to be left on the bus, that that would have probably avoided the injury to the plaintiff. I do note though that now the defendant’s buses do provide a secure place for drivers to leave money on the bus when they are not present.
- [27]Another difficulty for the plaintiff on this issue is that he has failed to establish that the provision of an area to secure bus moneys within the bus was a reasonably practicable precaution or alternative course of conduct. There was evidence from a boilermaker that he could design, manufacture and install a lockable box for a council bus for an amount which would not exceed $500, including goods and services tax.[22] However, this evidence is not convincing. It fails to adequately take into account a number of the difficulties associated with trying to retrofit the defendant’s buses with such lockable spaces at the relevant date. These difficulties in particular included identifying an appropriate location for the boxes to avoid work place health and safety issues and not otherwise interfere with the various existing design and fittings parameters of those buses. According to Mr Mackenzie, the defendant operated about 800 buses at the time and to retro-fit them (or a significant number of them) with such a facility or device would have been prohibitively expensive “in the order of millions of dollars”.[23] His evidence was not seriously shaken in cross-examination.
- [28]The plaintiff has failed to show that the provision of such a space or lockable device was reasonably open, having regard to the expense, likely difficulty and inconvenience of providing it.
- [29]The provision of adequate lighting and otherwise a reasonably safe environment for the location of the facilities is another matter. On behalf of the defendant it is asserted that:[24]
- “(c)the defendant submits that it is impossible to eliminate all risks in the workplace and that to demand that all employers remove all possible hazards is a test which is too onerous and not consistent with the prevailing case law as articulated above;
- (d)the defendant further submits that to require the defendant to remove all overhanging trees at all locations where drivers may be required to alight their bus, particularly in circumstances where such trees are located on private property, is too high a burden;
- (e)the defendant submits that there is no precedent to support the proposition that an employer must compel a utilities provider, such as SEQEB (which was referred to by the plaintiff's witnesses), to ensure adequate lighting is present in every location where that employee may be required to work;
- (f)if it is tortious, which is denied, to allow overhanging trees and inadequate lighting to become or create a risk of assault, then that cause of action must be pursued against
- (i)the owners of the trees/property where the trees are located (here that is not on the BCC); and/or
- (ii)the local authority or utilities provider (again that is not the BCC as an employer).”
- [30]With respect, these submissions tend to miss the point. The defendant would not be required to eliminate all risks or to remove all overhanging trees at all locations nor would it be required to provide (or have installed) “adequate lighting” in every location where an employee might be required to work.
- [31]Those facilities and works would only be required in those locations where it was reasonably necessary to provide a safe place of work. As identified above, it was foreseeable that an attempted robbery and or assault might occur in the subject environment. It is also clear that the consequences of such criminal actions could be very serious. The evidence is clearly to the effect that at the date of the incident, the environment surrounding the facilities was inadequately lit and in an overgrown state, thus providing an environment where a person in the position of the plaintiff at night, was at risk of being robbed. The overgrown nature of the area not only provided a place of hiding but made even more ineffective the inadequate lighting that existed at the time. The fact that some of this growth, indeed even that which provided the initial hiding place of the assailant, was located on private property provides no adequate excuse in my view.
- [32]Following the assault on the plaintiff, a “Report of Workplace Incident and Investigation” was carried out by the defendant.[25] The remedial action identified was to “improve lighting between toilet and bus stop”. In response to that report the defendant carried out, relatively quickly thereafter, works including trimming trees and further lighting.[26] Contrary to the submissions made on behalf of the plaintiff, I do not accept that these additional works included fencing and a new footpath. The latter works may have been carried out at about the same time as the clearing and lighting works but the evidence is that they were not a part of the defendant’s response to the assault.[27] Even disregarding the construction of the fence and new footpath, the physical difference in the environment before and after the proposed works is significant.[28] There is no evidence that on the night of the assault it was anything other than a normal night. On the night of the assault, according to the plaintiff, the area was “very very dark”.[29] After the new lights were installed, it is now “lit up like the Queen Street Mall”.[30]
- [33]There is some evidence that the works carried out cost in the order of $85,000. However, it is not clear whether those works included all of the work shown in Exhibit 1A or only the clearing and lighting.
- [34]Evidence of what occurred after the accident cannot constitute an admission of negligence on the part of the defendant. However, it is relevant in considering what could have been reasonably done to prevent or reduce the risk of injury without interfering with the work requirement of the defendant.[31] The defendants almost immediate response to the assault, contrary to the submissions made on its behalf show that it did have a sufficient degree of control over clearing and the installation of lighting.
- [35]It was also submitted on behalf of the defendant that the plaintiff must fail because he has not established, by expert evidence, a causal link between the alleged breach of duty and the assault. It was suggested that such expert evidence was pivotal.[32] It is no doubt true that in many cases expert evidence is relied on to establish a causal link between breach and consequences. However, it seems to me that expert evidence is not required in every case. It may not be required, for example, where the answer is obvious[33] or where other evidence existed which allowed appropriate inferences to be drawn. For example, where sufficient empirical evidence existed.[34]
- [36]I do not consider it necessary for an expert to give evidence to establish that the prospects of a robbery occurring at night would be materially diminished by the provision of adequate lighting and a significant reduction of hiding places. In my view, it would offend common sense to conclude that expert evidence was required to establish that such works would be likely to achieve a real reduction (even if not elimination) of the risk to the plaintiff. The defendant ought to have provided adequate lighting and otherwise a more open and safe area surrounding the facility, as a “reasonable precaution” to address the risk of robbery at night.[35]
- [37]The provision of adequate lighting and reduction of hiding places would have a two-way effect. First, it would provide a less attractive venue for any person inclined to commit robbery. Second, in the event that such a person was still inclined to commit a robbery, it provided an environment where the intended victim had much better prospects of observing the assailant earlier rather than later and thereby having the opportunity to take appropriate action.[36] As was observed by Bollen J in Fraser v State Transport Authority[37], it would be reasonable to presume that criminals would be less likely to commit offences in circumstances where the chances of success are materially reduced.
- [38]The evidence does not establish that the cost of carrying out the works was unreasonable having regard to the risks involved.
- [39]For the reasons given, I am satisfied that the evidence establishes that the defendant had failed to take measures or adopt means reasonably open to it to protect the plaintiff from the dangers associated with performing his work obligations without unduly impeding his accomplishment of those tasks.
- [40]Accordingly, I find that the defendant is liable. The risk of injury was foreseeable. The defendant failed to put in place reasonable precautionary measures. The breach of its duty of care to the plaintiff was the cause of his injuries.
Quantum
- [41]The plaintiff’s assessment of net damages in the amount of $222,108 is made up as follows:
General damages | $60,000.00 |
Interest on general damages | $3,241.37 |
Loss of income | $33,241.97 |
Interest on lost income | $7,203.04 |
Superannuation on loss of income | $1,529.34 |
Interest on lost superannuation | $331.38 |
Loss of future income | $118,160.00 |
Superannuation on future income | $10,634.40 |
Fox and Wood | $8,357.00 |
Medical and other expenses | $17,629.06 |
Special damages | $1,224.00 |
Interest on special damages | $264.50 |
Medicare Australia | $660.00 |
Future expenses | $100.00 |
Gross assessment | $262,576.06 |
Less agreed refund to City WorkCover | $40,468.05 |
NET DAMAGES | $222,108.00 |
- [42]The defendant’s assessment of net damages in the amount of $69,539.12 is made up as follows:
General damages | $30,000.00 |
|
Interest thereon | $1,298.08 |
|
Past economic loss | $14,927.37 |
|
Interest thereon | $nil |
|
Superannuation on past loss | $1,343.46 |
|
Future economic loss | $35,000.00 |
|
Special damages | $19,426.64 |
|
Future special damages | $100.00 |
|
Fox and Wood | $8,357.00 | $110,452.55 |
Less statutory refund |
| $40,913.43 |
NET COMPENSATION |
| $69,539.12 |
- [43]Following final submissions in this matter the parties were able to agree on a number of items, being:[38]
Fox and Wood | $8,357.00 |
Medial and other agreed refundable expenses | $17,629.06 |
Special damages | $1,224.00 |
Medicare Australia refundable | $660.00 |
Future expenses | $100.00 |
Interest on special damages | $264.50 |
- [44]In support of his assessment of general damages of $60,000, Mr Stephens made the following submissions:
“(55) As a result of the attack, Mr Miles was struck twice in the right side of the face and over the right arm proximally with a wood stake or wicket. He suffered pain in the right hand and skinned his knuckles, swelling and bruising in and around the right eye and bruising of the right arm. He refused to go to hospital. He was off work for five weeks from the date of the incident ... and [is] on light duties for another month until 4 September 2006. Mr Miles used Pandean Forte pain killers to relieve the pain. Despite physiotherapy and conservative treatment from Dr Nutting the injury did not settle and the paid persisted. Dr Nutting tried injections and finally performed an operation on the right shoulder … . After surgery Mr Miles has a permanent impairment of 5% of the upper limb.
- (56)Mr Miles was diagnosed with post traumatic stress disorder by Dr Lubke and by Michael Kearnes. He has been treated for that with medication and counselling. … Mr Miles
- (a)has experienced, does experience and will experience pain, suffering and discomfort;
- (b)has suffered dysfunction and disability of his shoulder;
- (c)has undergone surgical, medical and other treatment;
- (d)has suffered permanent impairment of the shoulder;
- (e)has suffered loss of mobility, agility, strength and dexterity;
- (f)has had his enjoyment of the amenities of life reduced and diminished;
- (g)has suffered curtailment of his recreational and social activities.”[39]
- [45]No authorities were referred to by Mr Stephens in support of his assessment of general damages.
- [46]It is accepted by the respondent that the plaintiff has been left with a permanent impairment of 5% referable to his right shoulder. However, the respondent refutes the assertion that the plaintiff has sustained any psychiatric injury as a consequence of the assault. It is also pointed out that the plaintiff had pre-existing degenerative changes to his right shoulder and had suffered previous injuries including to his left shoulder, multiple lower leg fractures, multiple left knee injuries and a hernia injury. Mr Keogh, after referring to a number of cases,[40] contended for an assessment of general damages in the amount of $30,000.
- [47]In my view, Mr Stephens has had insufficient regard to the pre-existing medical condition of the plaintiff. His ability to enjoy the amenities of life had already been materially affected in a negative way.
- [48]Mr Stephens relied on the report of the clinical psychologist, Mr Kearnes, in support of his contention that, as a consequence of the assault, the plaintiff suffered from a post traumatic stress disorder. In his report, Mr Kearnes at paragraph 8[41] states:
“Based on Mr Miles’ presentation and responses during the clinical interview, he met the diagnostic criteria for a DSM-IV-TR diagnosis of post traumatic stress disorder (309.81).
Mr Miles was a private individual who found it difficult to identify and express his emotions. This impacted on his ability to understand his current emotional and behavioural reactions, which in turn produced feelings of frustration and worry. It also contributed to him not seeking treatment from appropriate health professionals.”
In Mr Kearnes’s opinion the prognosis for recovery appeared to be good.
- [49]In a subsequent report dated 14 May 2007 Mr Kearnes reported:
“On completion of treatment to date, Mr Miles has increased his pleasurable activity with family and generally has improved frustration tolerance in the home environment. He still will experience explosive outbursts of anger on occasion, and the triggers for these have been identified.
Mr Miles has also actively modified several of his work behaviours that had changed following the assault at work. Plans have been developed to continue behavioural modification of remaining changed behaviours.”
- [50]On 16 February 2007 the plaintiff was seen by Dr Kar, a consultant psychiatrist. In his report at p 5[42] under the heading Clinical Findings and Prognosis, Dr Kar reports:
“In my opinion he has suffered emotional symptoms with some mild PTSD-like symptoms but more prominently mood symptoms with an increase in mood instability, anger, irritability, lower tolerance and increased startle, and readiness towards becoming tearful over minor issues. Such mood instability is not part of any specific psychiatric disorder but is due [to] an aggravation of his personality traits due to the effect of the opioid in the penadine.
In my opinion there is a relationship between the emotional symptoms that he has been suffering which are not disabling and not amounting to any specific DSM-IV psychiatric disorder.”
- [51]On the medical evidence before me, I have reached the conclusion that it was more likely than not that as a consequence of the assault the plaintiff did not and does not suffer from any specific psychiatric disorder such as post traumatic stress disorder. However, it is clear that as a consequence of the assault the plaintiff suffered from emotional symptoms and some mild post traumatic stress disorder-like symptoms and also prominent mood symptoms. These symptoms were to an extent exacerbated due to the effect of the opioid contained in the penadine the plaintiff was relying on to ease the pain. That the plaintiff does not suffer from post traumatic stress disorder does not mean that the PTSD-like symptoms and effect on mood caused by the assault has not and will not continue to have a meaningful detrimental impact on the plaintiff, both in his home and work environment albeit, probably at a decreasing level into the future.
- [52]I accept the plaintiff’s evidence that following the assault he suffered significant and negative impacts on his emotion/mood and that this had significant impacts both at home and in the workplace for an extended period after the assault. In this context, it is relevant that when Dr Kar interviewed the plaintiff, the emotional impact of the assault would have been reduced by in the order of 70%.[43]
- [53]While there is some force in Mr Keogh’s submission that the authorities to which he referred support a finding of general damages in the order of $30,000, those submissions are based on the plaintiff having no psychiatric or similar type of injury. None of the authorities to which I was referred, so far as I can tell, involve any mental or nervous symptomatology of the type suffered by the plaintiff here.
- [54]On balance, I consider that the emotional/mood impact on the pain, suffering and loss of amenity of the plaintiff, while significant, was materially less than that caused by his shoulder injury. On the evidence before me, I consider it appropriate to increase the allowance for general damages contended for by Mr Keogh by one-third, to take account of these impacts. This would result in a figure of $40,000 for general damages.
- [55]Interest on damages is calculated at the rate of 2% on one-half, being $1,768.
Past economic loss
- [56]The plaintiff’s claim for past economic loss is based on the following formulation:
“… from about 1 August 2008 to the present time [the plaintiff] has changed shifts to the shorter shift without overtime. He estimates that he brings home $140 net per week. Over the period of 115.95 weeks from 1 August 2008 to present he would have earned another $16 (sic) he would have earned a further $10,669.78. The total claim for lost earnings is $33,241.97.”[44]
- [57]In the plaintiff’s statement of loss and damage[45] the claim for past economic loss was couched in these terms:
“Since August 2008, the plaintiff has only been working 7 hours 36 minutes per day, five days per week because of the subject injuries. Prior to the subject accident, he had been working 10 hours per day, five days per week. His present rate of pay is $21.98 per hour. He has therefore lost $20,425.61 calculated as follows:
553 days x $15.39 net per (hour) x 2.4 hours per day.”
- [58]
- [59]Neither the medical nor the financial evidence supports the plaintiff’s claim for past economic loss.
- [60]The plaintiff’s claim for economic loss is largely dependent upon his assertion that, after the assault, he was unable to work the longer split shifts. In his evidence-in-chief the plaintiff gave the following evidence:[48]
“Q. Were any recommendations made about changes in your method of work?
A. Yes. A couple of times when I hurt the shoulder and I was off for a week on sick leave, not compo, that happened twice. I spoke to a rehabilitation officer at the council – I can’t remember her name, though, sorry. We went through details and in the end they assisted me by not giving me the buses with manual destination signs – have got them up very high where you’ve got to tippy-toe to reach them and that was really something that was aggravating the shoulder.
- Okay. And did you change your shifts that you took?
A. Yes. After consulting with – with Greg – this is after the surgery, he thought if I – if I cut back to shorter shifts it could assist the shoulder. I was doing shifts that approximately started at 7 o’clock in the morning, finished at 7 o’clock at night and had a three to four hour lunch break. Instead, now, I do shifts that mainly start at 5 o’clock in the morning, finish by 1.30 or 2 and I’ve cut it back to – it’s about 7.36 driving and it’s – the shoulder, it’s made it a lot more bearable doing the shorter shifts.
…
Q. Okay. Now, have you been able to do any calculation as to the net amount that you have lost as a result of your changes in shifts?
A. Yeah, the net amount would be – I – approximately, because all the shifts do change slightly each day, I approximately, now, lose about two and a half hours a day from doing the broken shifts which I done for – for five or six years to now swapping my work all the time to get the shorter shifts possible to me.”
- [61]The reference to the “Greg” above is a reference to the orthopaedic surgeon, Dr Gregory Nutting. The evidence of Dr Nutting does not support the plaintiff’s evidence, which infers that he cut back to the shorter shifts on medical advice. Dr Nutting could not recall the matter of split shifts being specifically raised by either him or the plaintiff and in fact expressed the view that he could not think of any reason why the plaintiff could not continue with the split shift.[49]
- [62]Turning then to the financial evidence, notwithstanding his assertion in his statement of loss and damage that he had not performed overtime since August 2008, he conceded under cross-examination that on limited occasions he had in fact worked overtime to build up “time in lieu” and meet bills which arose from time to time.[50]
- [63]The financial records of earnings of the plaintiff for the years 2005/2006 through to 2008/2009 do not support the claim for past economic loss. No objective evidence, for example by way of reference to past and present pay records or overtime records, was produced or referred to in support the amount claimed. The pay records that do exist suggest that the amount of overtime worked by the plaintiff, at least for the years 2008 through to 2010 are at a level consistent with the average amount of overtime being worked by other bus drivers employed by the defendant.[51]
- [64]The plaintiff has not proved his claim for any past economic loss beyond that contended for by the respondent. Accordingly, I determine past economic loss at $15,000.[52] Interest thereon at 5% is $3,300. Superannuation on past economic loss at 9% is $1344.
Future Economic Loss
- [65]The plaintiff’s claim for $118,160 under this heading is based on him having to work shorter shifts until retirement age at 65. That is a loss of $140 per week for 22.83 years.[53] The respondent contends that based on the medical and financial records there is no basis for calculating future economic loss on projected hours worked until retirement age. Instead it is submitted that damages under this heading should be assessed on a global basis to take in to account the increased risks of the plaintiff in the open labour market. The amount of $35,000 is contended for by the defendant.
- [66]Neither the medical evidence nor the financial evidence (such as it is) supports the plaintiff’s claim. The claim also fails to properly take into account the pre-existing health of the plaintiff prior to the assault. It is clear that the plaintiff is a robust and hard working person who, notwithstanding his previous injuries, has maintained a solid and consistent work performance to date. According to Dr Nutting the plaintiff is the sort of person who will “bounce” back after an injury.[54]
- [67]There being no probative evidence supporting the plaintiff’s claim for future economic loss I accept the submission made on behalf of the defendant that damages should therefore be determined on a global basis. The range contended for by the defendant is $30,000 to $40,000. However, again it is really premised on the plaintiff having suffered no psychiatric or psychological damage or injury as a consequence of the assault. For the reasons given above I do not accept that submission. The emotional stability of the plaintiff was affected by this assault and, although there has been a significant recovery in respect of this injury there is evidence that I also accept, that some legacy of the emotional anguish suffered by the plaintiff that night still exists. This injury, in my view, adds another dimension to the risk of the plaintiff’s future employment in the open workforce. On balance I consider a global amount (including superannuation) of $55,000 is appropriate under this heading.
- [68]For the reasons given above damages assessed in the amount of $103,733.00 made up as follows:
General damages | $40, 000.00 |
Interest on general damages | $1,768.00 |
Past economic loss | $15,000.00 |
Interest on past economic loss | $ 3,300.00 |
Superannuation on past economic loss | $ 1,344.00 |
Loss of future income (on a global basis) | $55,000.00 |
Fox and Wood | $8,357.00 |
Other special damages and loss including interest | $19,217.50 |
Medicare Australia (refundable) | $660.00 |
Gross Assessment | $144,646.50 |
Less agreed refund to City WorkCover | $40,913.43 |
NET DAMAGES | $103,733.00 |
- [69]Orders:
- Judgment for the plaintiff against the defendant in the sum of $ 103,733.00 as damages.
- I will hear from the parties in respect of costs.
Footnotes
[1](1980) 146 CLR 40 at 48: cited with approval by Atkinson J in Sapwell v Lusk & Anor (2010) QSC 344 at para [68].
[2]At para [71].
[3]Czatyrko v Edith Cowan University (2005) 79 ALJR 839 at para [12].
[4](1984) 154 CLR 672 at 687-688.
[5][2005] NSWCA 327.
[6]Cited with approval by Atkinson J in Sapwell (supra) and by McColl JA in Tutani Stone Pty Ltd v Povkovic [2007] NSWCA 355.
[7][2006] NSWCA 45.
[8]Fraser v State Transport Authority (1985) 39 SASR 57 at 68, Sapwell v Lusk & Anor.
[9]T1-17 L30.
[10]Ibid.
[11]T1-17 L30-40.
[12]T1-17 L37; T1-19 L35-60.
[13]See Exhibit 1A.
[14]T1-55 L50-55.
[15]T1-2 L40-50.
[16]Glass, McKew and Douglass, “The Liability of Employers” (2nd ed.) The Law Book Company 1979 at p 16.
[17](1964) 112 CLR 316.
[18](1986) 160 CLR 301 at 308.
[19]Defendant’s written submissions at p 13, para [10].
[20]At paras 85, 86 and 87.
[21]T1-35, L 30-40.
[22]Stainless steel would cost 15% extra.
[23]T2-59 L50 – T2-60 L10.
[24]Defendant’s written submissions at p 14.
[25]Exhibit 6.
[26]Evidence of Mr Duke, T1-57 L 30-55.
[27]T1-57 L35-40.
[28]See for example, Exhibit 1A.
[29]T1-17 L 35.
[30]T1-22 L 18.
[31]Nelson v John Lysaght (aus) ltd (1975) 132 CLR 20; Anderson v Morris Wools Mills Pty Ltd (1965) Qd R 65 at 66-67 per Lucas J.
[32]Defendant’s written submissions at pages 15 onwards.
[33]McLean v Tedman (1984) 155 CLR 306 at 313; Sapwell at para [76].
[34]White v Calstores Pty Ltd (2006) QCA 535 at paras [18] and [19].
[35]Ibid at paras [17] and [18].
[36]See Coca Cola Amatil at para [111].
[37]At p. 73.
[38]Email dated 10 November 2010 and Exhibit 13.
[39]Plaintiff’s written submissions at pp. 11-12.
[40]Higgins v B & J Carriers (2000) QDC 443; O'Doughty v Gold Coast City Council (2008) QDC 195; Nichols v Telstra Corporation Ltd & Anor (2007) QDC 340.
[41]Part of Exhibit 7.
[42]Also part of Exhibit 7.
[43]T2-34 L50-55.
[44]Plaintiff’s written submissions at p. 12, para [60].
[45]Exhibit 8.
[46]T1-33 L 1.
[47]T1-32 L 30.
[48]T1-32 L 30-55.
[49]T2-5 L 35-55; T2-7 L 35-55; T2-8 L 1-55.
[50]T1-45 L 10-22.
[51] Evidence of Mr McKenzie (Depot Manager) T2-68 L 20-55
[52] $14,927.37 rounded to $15,000.
[53] Plaintiff’s written submissions at p. 13, para [61].
[54] T2-6 to T2-7.