The v AEG Ogden (Convex) Pty Ltd
[2011] QDC 51
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- The v AEG Ogden (Convex) Pty Ltd[2011] QDC 51
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The v AEG Ogden (Convex) Pty Ltd[2011] QDC 51
The v AEG Ogden (Convex) Pty Ltd[2011] QDC 51
DISTRICT COURT OF QUEENSLAND
CITATION: | The v AEG Ogden (Convex) Pty Ltd [2011] QDC 51 |
PARTIES: | Yong-Lip The (Plaintiff) v AEG Ogden (Convex) Pty Ltd (formerly known as Convex (Qld) Pty Ltd) ACN 058298374 (Defendant) And Informa Australia Pty Ltd ACN 086268313 (Third party) |
FILE NO/S: | BD 3198 of 2008 |
PROCEEDING: | Civil |
ORIGINATING COURT: | District Court Brisbane |
DELIVERED ON: | 19 April 2011 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 April 2011 |
JUDGE: | Dorney QC DCJ |
ORDER: |
|
CATCHWORDS: | LIABILITY AND DAMAGES – fall in car park in convention centre in an area used for docking vehicles – duty of care on occupier towards entrants concerned with exhibiting materials in exhibition areas – whether Civil Liability Act 2003 applies Civil Liability Act 2003, ss 4(1), 5(b), 6A, 13, 23, 54, 55, 60, 61, 62 Civil Liability Regulation 2003, Schedule 4, Schedule 6A Workers’ Compensation and Rehabilitation Act 2003 Wrongs Act 1936 (South Australia) Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388 Lusk & Anor v Sapwell [2011] QCA 59 Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 Newberry v Suncorp Metway Insurance Ltd [2006] 1 QdR 519 Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 Vairy v Wyong Shire Council (2005) 223 CLR 422 Warrener v Australian Capital Territory [2004] ACTCA 9 Wellington Shire Council v Steedman [2003] VSCA 115 |
COUNSEL: | M Kehoe for the plaintiff C Harding for the defendants |
SOLICITORS: | Rostron Carlyle Solicitors for the plaintiff Cantwell Lawyers for the defendants |
Introduction
- [1]The plaintiff claims against the defendant damages for negligence arising from personal injury suffered in a fall at the Brisbane Convention and Exhibition Centre at approximately 4.00pm on 4 July 2005 when the plaintiff sustained, directly, an injury to his left ankle.
- [2]The claim made by the defendant against the third party was settled prior to this trial beginning. Furthermore, on 19 July 2010, Irwin DCJ ordered that certain paragraphs of the plaintiff’s Statement of Claim be struck out, removing all references to all claims for breach of contract and breach of statutory duty.
- [3]The trial took place before me on 4 April 2001 when all evidence was led and oral submissions, with some written supplement, were presented. I rejected an application for telephone only evidence as to liability to be led from a person at a remote location who had no access to any of the relevant liability documentation, and who had attached an ‘illegible’ photograph to his statement. But the parties agreed that a further witness, who was also, originally, part of that application, have his evidence accepted by tender of a statement of his, subject to redaction. Consequently, a copy of an original typewritten statement signed by Jonathon Gamez on 2 May 2007 became Exhibit 5. Paragraphs 1, 2 and 8 to 15 (inclusive) were the only ones to be admitted into evidence.
- [4]Thus, besides the issues of negligence and damages, the only other legal matter of concern in this case is whether or not the Civil Liability Act 2003 applies to this “civil claim for damages for harm”.
Circumstances of harm
- [5]There was much common ground between the plaintiff and the defendant about both the physical circumstances of the place where the plaintiff suffered personal injury and the circumstances of how it happened.
- [6]A series of photographs, comprising seven photographs in all, became exhibits. These photographs show an area at the Centre which is called the “Great Hall loading dock.” In the general area where the incident occurred there was a join between two different, but very significantly large, areas of concrete which were originally laid side by side for, respectively, the use of vehicles loading and unloading at that dock and the use of vehicles entering the Centre for either the purpose of actually accessing the dock or accessing the lift servicing that dock (their drivers having, for instance, parked their vehicles elsewhere in the Centre). As described by Mr Chalmers, who was at the time of the trial the facilities manager at the Centre and had been employed at the Centre in various positions from the time that it was opened in 1995, the two different concrete construction slabs were, respectively, for an area which was the service road (being a slab built over fill) and for an area which was the docking area (being a suspended slab with “habitable” areas underneath).
- [7]As all the photographs show, in various degrees of clarity, that there was, by reason of the condition of that join between those two different slabs of concrete, a small lip – at least in the relevant area – of varying height. As described by Mr Chalmers – who I accept made the most thorough examination of the immediate area – that lip was created by the join which laterally had a small gap with mastic infill in it (being the construction material joining the two pieces of concrete together). As Mr Chalmer’s evidence showed, the lip height varied from flush to a maximum of just over 20 millimetres, and ran from that high point back to being flush over “a number of metres” only. In cross-examination, Mr Chalmers conceded only that it was “only just” over two centimetres at its highest.
- [8]As the photographs in Exhibit 2 illustrate, the concrete slab which supported the service road had a yellow and orange striped walkway at its extreme left (being adjacent to the relevant join between the two slabs). The suspended slab, on which the various trucks and other motor vehicles docked, was to the immediate left of the walkway as shown in those photographs.
- [9]It was common ground that as the photographs in Exhibit 1 attempted to depict – without very much clarity – that the lip was one where the docking area was higher than the walkway. As all the photographs show, the edge of the lip was painted on docking area side with a single yellow line. It should be noted at this point that it is only Exhibit 1 which contains photographs taken relatively contemporaneously with the incident. The photographs in Exhibit 2 and Exhibit 3 were taken some considerable, and unidentified, time later. Exhibit 4 is a photograph later than Exhibit 1 and depicts the area after the lip was altered: see below.
- [10]So far in determining what the scene was like at the time, I have not specifically referred to the evidence of the plaintiff. I have gained little by way of illumination of the state of the scene from the statement of Mr Gamez, apart from his observing that the join “gradually” became “slightly” uneven. Although I found the plaintiff to be a straight forward and honest witness, it was clear that he did not examine the area in any close way at the time of the incident, or subsequently. This is demonstrated by his comments about the photographs taken at the later time (conceding that the incident occurred some five years previously) to the effect that while they appeared to be photographs of the location, he could not be 100 per cent certain, noting that it would be “around that … vicinity” and noting that the colours depicted in the later photographs may well have been different from those on the day in question. In particular, with respect to Exhibit 4 (which, like Exhibit 1 shows a close up photograph of the area in question), he stated that it did not look quite like the lip where he actually tripped, describing that lip as a “significant” lip and “certainly not” that which he remembered. This was the photograph referrable to the altered state of the lip.
- [11]With respect to the depth of the lip, the plaintiff stated, variously – although not necessarily inconsistently – at it was “at least” two centimetres high and that it was “two centimetres or more” high. Given that that estimation by the plaintiff accords significantly with the evidence given by Mr Chalmers, although I prefer the evidence of Mr Chalmers as to the accuracy, it can be seen that the plaintiff’s estimation is in the approximate region anyway.
- [12]The path that the plaintiff took, when alighting from the lift which brought him down from the relevant exhibition hall to this level, was not to walk immediately to the multi-coloured walkway but to take a path diagonally across the initial loading bays and then to move from that concrete slab to the concrete slab on which the walkway had been painted. There can be no criticism of that particular path being taken; but it should be noted that the walkway was a designated walkway for the better safety of persons who were moving by foot about this whole docking, driveway and parking area and that that was obvious from the very look of it.
- [13]The witch’s hat which is shown in both Exhibits 2 and 3, although conceded to be in the area where the incident occurred, was not, as I have noted earlier, confirmed by the plaintiff as indicating the exact area where he fell, although he did concede (as I have noted) that it was in that general vicinity.
- [14]Given that description which I have accepted of the scene as it was on 4 July 2005, the plaintiff’s further description about how the incident occurred was, in that context, necessarily brief. As I have indicated with respect to his credibility, I accept his description of the way that it did happen. According to him he “stepped on the lip and fell”. Specifically with respect to his left ankle, his stated that his left foot “stepped on the lip and it rolled over”.
- [15]In cross-examination, the plaintiff conceded that, although paying attention to his surroundings, he was not looking at every single step that he was going to make, nothing that while there was a difference in the actual purpose of the walkway, as marked, from the loading dock, he looked at the marked lines rather than looking at the fact that they were different surfaces. Further, the plaintiff conceded that it was “probably correct” that he looking ahead rather than looking at where he was putting his feet. One thing that he was adamant about was that he was unaware that there was a lip between the level of the loading dock area and the level of the walkway area.
- [16]More generally, and specifically with reference to the applicability of the CL Act, the plaintiff was employed at the time of the incident and was in the process of having delivered exhibition material into an exhibition hall in the Centre as instructed by his employer at the time. The task that he was engaged in when the incident occurred was that of returning to his car after having delivered the exhibition material to the hall. He stated that his car was parked some distance away, which is why he went up to the walkway through the loading dock area so that he could then walk towards his car along the designated walkway.
- [17]The plaintiff’s description of the light in the area in question was that it was a combination of some natural light and some indoor lighting but it was not “very bright”. But he did not assert that he could not clearly see where he was walking.
Particulars of negligence
- [18]The plaintiff’s Statement of Claim, besides alleging that a trip hazard was permitted, or allowed, to remain in an area where persons walked or, alternatively, that there was a failure to remove such a hazard, stated that there was a failure to warn the plaintiff of that hazard.
- [19]With respect to the last particular, no evidence of any kind was led as to what type of warning would have been appropriate, or why it may have been effective if so provided. Since no submission was made in closing addresses also, I have been unable to make any findings or reach any conclusions on that alleged particular.
- [20]With respect to the other particulars, they are all essentially of the same kind. Thus, with respect to them, at least, the determination is directed towards the presence of the alleged danger and whether it was, relevantly, the kind against which any duty placed on the defendant, as an occupier having the care, management and control of the premises, which was, or was not, discharged without breach.
Contributory negligence
- [21]Although the defendant pleaded that the plaintiff failed to look where he was going whilst “walking through the car park of the premises”, the submission made by counsel for the plaintiff during addresses was that the plaintiff either failed or succeeded in full. The defendants’ written submissions contended for a 30% contribution, if liability were to be held against it.
Duty of such an occupier
- [22]It is to Thompson v Woolworths (Q’land) Pty Ltd (2005) 221 CLR 234 that it is necessary to turn for guidance in determining what is the content of the duty of care owed by the defendant to the plaintiff in the present circumstances.
- [23]In the joint judgment in Thompson the High Court held that the status of the person that is occupier of the land on which the other person is injured is one aspect of the relationship that gives rise to the actual duty of care: at 243 [24]. In Thompson, it was held that the status in that case gave the occupier a measure of control that is regarded by the law as important in identifying the existence and nature of the actual duty of care: at 243 [24]. But, unlike this present case, Thompson involved a relationship that concerned more than the physical condition of the occupier’s premises only: at 243 [24]. Thus, in Thompson, the purpose for which and the circumstances in which the entrant was on the occupier’s land constituted a significant aspect of the relationship between them because the entrant, in pursuit of her own business, was delivering goods to the occupier for the purposes of sale in the course of the occupier’s business; and to do that, she was required to conform to a delivery system established by the occupier: at 244 [26]. There was no such system here.
- [24]Thus, stripped of the added aspects that arose in Thompson, the content of the occupier’s duty in a case such as this is to exercise reasonable care for the safety of the entrant, cognisant of the circumstances of entry being to use the car parking and associated facilities to permit exhibition material to be taken to and placed in exhibition areas in the Centre itself. Thus, the status of the defendant here was that it was receiving a commercial benefit from presence of persons such as the plaintiff on its premises; but there was no system established, so that the total area involved was, for an entrant such as the plaintiff, to be treated as a car park in which there was a docking area and an adjacent walkway.
- [25]As in Thompson, the real issue here is not whether a duty was owed – which it clearly was – but whether the duty that was owed was breached, given the content of that duty. Because the risk of injury was not far-fetched or fanciful, a reasonable person in the defendants’ position would have foreseen that this lip did involve a risk of injury to a class of entrant that included the plaintiff.
- [26]Turning then to breach, as observed by the High Court in Thompson, the obviousness of the risk, and the remoteness of the likelihood that other people will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response, observing that, in the case of some risks, reasonableness may require no response: 246 [36]. With respect to the issue of warnings – should it be later seen to be relevant – the High Court noted that the conclusion, in a given case, that a warning is either necessary or sufficient itself involves an assumption that those to whom the warning is addressed will take notice of it and will exercise care, since the whole idea of warnings is that those who receive them will act carefully, as there would no purpose in issuing warnings unless it were reasonable to expect that people will modify their behaviour in response to warnings: at 246-247 [36]. As stated earlier, nothing has been presented to the court which would lead to an engagement by the court of a consideration of the issue of a warning here.
- [27]Perhaps of more immediate assistance in this case is the later decision in 2005 of the High Court in Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341. Although this was a consideration of the Wrongs Act 1936 (South Australia), it is noted that both Callinan and Heydon JJ, comprising part of the majority, held that the application of that Act in general reflected the common law and demanded no different conclusion from what the common law required, it being noted that the case in the courts below was conducted largely on basis of the common law rather than the Act: at [113-114]. As addressed by Gleeson CJ, also in the majority, the fundamental problem in occupier/entrant cases remains to the extent to which it is reasonable to require occupiers to protect entrants from a risk of injury associated with the condition of the premises, even though the problem is no longer addressed by prescriptive legal rules which attempt to establish precise and different standards of care for different classes of entrant: at [8]. Hayne J, also part of the majority, after observing that the relevant danger in the case was presented by the uneven surface of the occupier’s home driveway, held that neither the fact the driveway paving was uneven nor the degree of unevenness (a difference of about 12 millimetres between two sections of concrete) is or was at all uncommon in the driveways of suburban housing: at [94]. He then asked: would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step?: at [94]. But, even given the differences between home owners with an interest in having entrants attend for the purposes of an occasional garage sale and commercial enterprises such as that conducted by the defendant at the Centre, the question remains the same (although the extent of the duty might well change depending upon the actual circumstances of the particular case). Paraphrasing what Hayne J went on to write, it may be only when the particular event such as the entrant’s stumble is known to have happened that it may then appear reasonable to take steps to reduce or eliminate the danger presented by unevenness in the particular driveway surface, but he then instructed that it was necessary to qualify any such conslusion immediately with an identification of the problem to which it gives rise, namely, hindsight: at [97]. As he then goes on to hold, the question that the statute (or common law) presents is what would have been the reasonable response of the occupier “before the accident happened”: at [97].
- [28]Finally, in Neindorf, Callinan and Heydon JJ held that knowledge of the actual joint and unevenness of it is not the same however as an appreciation of it as a danger, observing that there was no evidence of any previous problem or accident caused by the joint and that the unevenness in question was a kind often encountered: at [116]. As further stated by them, it was their opinion that it was an overstatement to describe the “slightly raised concrete on one side” as a “danger” of which the occupier was, or should have been aware, holding that, therefore, it was not unreasonable for the occupier not to have taken measures to guard against the slight risk, at most, that it presented: at [116].
- [29]Although many other cases were brought to the Court’s attention as being relevant, most of those cases were simply decisions made on the basis of factual circumstances which had some similarities with, but also some differences from, the circumstances of the case under consideration here. As emphasised by Gleeson CJ and Kirby J in Vairy v Wyong Shire Council (2005) 223 CLR 422, decided cases are “fact-sensitive” and it is a “sterile exercise”, involving “a misuse of precedent,” to “seek a solution” to one case based on the “facts” in other cases: at 425 [2]. Examples of individual circumstances, as illustrated by the differing outcomes in Wellington Shire Council v Steedman [2003] VSCA 115 and Warrener v Australian Capital Territory [2004] ACTCA 9, both of which involved tripping in a car park, show the difficulty in attempting to apply particular fact situations as guidance to the outcome of a case where the factual circumstances are significantly different. Further, reference to Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388, although containing much that is of universal relevance, involved a case in which Fraser JA, with whom McMurdo P and Mackenzie AJA agreed, held was one where there was no occasion to consider the difference between the measure of the duty of care owed by an occupier of private land to an entrant upon that land and the measure of the duty of care owed by a local authority to users of a public highway, or whether – appropriate to the present case – there is any difference between the content of duty owed by a “commercial occupier” and by a “residential occupier” of land upon a which a plaintiff is injured (which may involve whether it was necessary to decide whether a “commercial occupier” of such land owes a “higher duty” than that are owed by a local authority to users of a footpath within its local government area): at [25]. Nevertheless, in referring to the “Shirt calculus”, Fraser JA held that the correct approach is to judge whether the magnitude of the risk and the degree of probability of an accident were so slight that reasonableness did not require any corrective action on behalf of the occupier: at [29]. What is of use in this case is his further discussion of the relevance of the location of the accident to the negligence issue, referring to the obvious unlikelihood that many pedestrians in that case would walk on the very edge of a footpath where the adjacent surface was appreciably lower than the footpath and that that bore upon the magnitude of the risk that someone would trip on a raised paver (which was a question that was undoubtedly relevant to the reasonableness of the occupier’s failure to notice and correct the defect): at [40]. Lastly, with respect to obviousness of the risk, Fraser JA, after accepting the submission that the possibility that users of the footpath might not act carefully or prudently was a relevant factor, held that it did not mean that a failure by the occupier to notice and correct the raised paver “bespoke negligence”, particularly in circumstances where there was a finding that the unevenness should reasonably have been observed by someone choosing to walk on that border, because that could properly be taken into account as bearing upon the question whether the risk required a response, referring to Thompson at [36]: at [42].
- [30]Before leaving the issue of negligence in a case such as this, it is important to bear in mind recent observations by the Queensland Court of Appeal, concering the role of the primary judge, in Lusk & Anor v Sapwell [2011] QCA 59. There, Muir JA, speaking generally for the court, referred to the inappropriate and impermissible use of the benefit of hindsight in the assessment of liability, holding that it did appear that the primary judge may have focused unduly on the circumstances of the incident rather than on the response of a reasonable person in the position of the employers (in that case) having regard to the prospect of the risk of injury: at [22].
Civil Liability Act Applicable?
- [31]Noting that this incident occurred on 4 July 2005, the CL Act, at the relevant time, contained the following provisions in the following terms.
- [32]Section 4(1) stated that, subject to s 5, the CL Act applies to any civil claim for damages for harm. In turn, s 5(b) provided that the CL Act does not apply in relation to any civil claim for damages for personal injury if the harm resulting from the breach of duty owed to the claimant is or includes an injury defined under the Workers’ Compensation and Rehabilitation Act 2003, other than an injury to which s 34(1)(c) or 35 of that Act applies.
- [33]Most usefully, those sections were considered by the Queensland Court of Appeal in Newberry v Suncorp Metway Insurance Ltd [2006] 1 Qd R 519, particularly in the decision of Keane JA, with whom de Jersey CJ and Muir J (as he then was) agreed. As in that case, the parties here did not contend that either of the sections mentioned in s 5(b) of the CL Act had any relevance.
- [34]Keane JA expressed the effect of the exclusion as concerning those claims which involve the assertion that the personal injury is caused by the breach of duty by a non-employer and occurs in circumstances where the claimant’s employment activities nevertheless also contribute to the occurrence of that injury in a way “which is significant”: at 529 [24]. As Keane JA went on to hold, whether the contribution of the employment activities was, or was not significant, involves a consideration of issues of causation and causal potency in the relationship between the breach of duty and the employment activities and the fact that, on this view, if a claim for damages for breach of duty against a person other than an employer is to be excluded from the purview of the CL Act by this method, the claim must be one where the employment and its significant contribution to the occurrence of the injury “can be seen to be a material ingredient of the claim made against that person”: at 529 [24].
- [35]By way of illustration of this point, Keane JA stated that if the plaintiff’s claim there were to be formulated in a pleading in a way that included an allegation that the plaintiff was a passenger in a motor vehicle “in the course of his employment”, or that the motor vehicle in which he was a passenger was on the road “because of the exigencies of the plaintiff’s employment”, those allegations would be liable to be struck out as immaterial and embarrassing to his claim: at 529 [26].
- [36]In this case, the plaintiff has pleaded not only that the plaintiff was employed as a salesperson but also that he was at the Centre in his capacity as a salesperson and, further, that he was there as part of his employment duties walking through the car park of the Centre when he “tripped over” a raised lip. But the mere fact of pleading allegations about employment does not satisfy the test. The allegations just mentioned are immaterial to the claim, at least in so far as they allege “employment”. Necessarily, the reason that the plaintiff was on the premises was because the defendant had made the Centre available for the purposes of exhibiting the goods and wares of salespersons; but it is not relevant that the plaintiff was walking through the car park because of the “exigencies” of his employment. In other words, the formulation of the plaintiff’s claim here against the defendant does not require any allegation that the plaintiff’s employment made a material contribution to the injury which resulted from the breach of duty owed to the plaintiff, whether as a contributing factor to the breach of duty or to the occurrence of the injury as a result of that breach of duty: see Keane JA at 529 [25].
- [37]Accordingly, since the duty owed by the defendant here to the plaintiff was a duty owed to the plaintiff as a person on the premises who had a commercial interest in attending the premises, the plaintiff’s activities “as an employee” were irrelevant to the duty which was owed, irrelevant to the breach of that duty and irrelevant to the injury caused as a result of that breach: see, again, Keane JA at 530 [28]. Thus, I conclude that this claim is not excluded from the provisions of the CL Act.
- [38]Although that outcome could have some effect on the application of Chapter 2 of the CL Act, it was not argued before me that the provisions of that Chapter, particularly those arising from the meaning of “obvious risk” in s 13 or those arising from the standard of care in relation to contributory negligence in s 23 meant that the applicable law in any way differed from that applying under the general common law. On the other hand, it is clear that the application of the Act does have some effect here in so far as Part 3 of Chapter 3 is engaged in the circumstances.
Liability of Defendant
- [39]Besides the facts already canvassed with respect to the layout of the Centre where the incident occurred and the circumstances of the plaintiff being injured, I conclude, consistently with the evidence led, that the plaintiff has not established that any other incident of tripping, stumbling or other instability occurred to any other person in the area where a difference in height in this lip between the two concrete slabs existed, it being over a number of metres only. Of course, that in itself does not establish the absence of a risk, although it is indicative of the low magnitude of the risk that did exist and is relevant to the probability of occurrence.
- [40]In addition, the defendant, as the evidence of Mr Chalmers indicates, did have a system of inspection of the entire area (for which picking up movement of a joint would be a part of what that system was “looking for”). That system of inspection did not pick up this particular irregular lip. As was observed by Mr Chalmers, he considered that the height of the lip “didn’t jump out and say, yes, there’s a very dangerous situation here”. The addition of such an intensifier does not change the impact of the non-observation about the “danger”, as mere failure of this kind does not of itself bespeak negligence.
- [41]As to the rectification undertaken afterwards, Mr Chalmers stated: that, as a result of his inspection of this section of the lip after the accident, it was decided to get a concrete grinder to take some of the height off the higher section of the concrete; and that when that was done was that a small slope was created or, to use a “better term” (according to Mr Chalmers), a small section was battered back as a transition between the two heights. Mr Chalmers added that, had the accident not occurred, it was doubtful that it would have been identified as work required to be done. That is, it was only done because of hindsight.
- [42]As to the actual cost of what was effected after the accident, Mr Chalmers estimated that it would have been a few hundred dollars, although he could not recall exactly.
- [43]Looking at this issue of negligence with foresight, rather than hindsight, I conclude that the magnitude of the risk in the small area affected – that is, small as relative to the size of the whole of the docking, driveway and parking areas – was slight and the degree of probability of its occurrence was also slight. Firstly, at its highest, the lip was just over 20 mm (being significantly less than 1 inch in height) and it ran from such a “high” point back to being flush over a length of a few metres only. Secondly, this was a parking area where not only cars but also large trucks and, as shown in the photographs, very large vehicles (carrying considerable weights) parked. Thirdly, there was a marked, multi-coloured walkway which was available to the plaintiff and about which there was no contest that it was, relevantly, even over its entire surface. That, at least, has an effect on what should be a reasonable response by an occupier such as the defendant here, although it is noted that drivers, or other persons unloading such vehicles that did park in the dock might, from time to time at least, traverse the area of the lip. Even so, there is no reported case of any incident at all prior to 4 July 2005 (from 1995); and given its purpose it must have been subjected to numerous pedestrian movements. Fourthly, this was a car park, and a docking area, and was not a hallway, or even a large entrance area to the exhibition hall, or halls, itself or themselves. It cannot be unexpected that there might be small differences in height in the various slabs of concrete that are laid in such a vehicle intensive area, which may well move our time to a small degree. As such, any such hazard, if it can be characterised that way, was the kind of hazard that might have been encountered daily by people using car parks such as the one in this Centre. As such, slight unevenness can be said to be a normal hazard of daily life in such a place.
- [44]It should also be concluded that such unevenness which did cause the plaintiff to stumble here was not noted during the defendant’s regular inspections (canvassed earlier). I conclude that that was a result of the slightness of the risk that it presented, rather than that it was un-observable.
- [45]As for the obviousness of the risk, and its attendant factors, it is my conclusion that even if an occasional person might fail to observe the difference in height, a person awake to the fact that this was a car park would thereby take some steps to observe the areas which were being traversed were discernibly different and thereby would have observed that there was a slight drop from the dock area to the designated walkway area. From the photographs that show the lip, it is clear that the gap is itself highlighted by the break between the single continuous yellow painted line in the docking area and the multi-coloured paintwork on the walkway area. This is particularly so in the photographs in Exhibit 1, which were the photographs taken relatively contemporaneously.
- [46]What, then, do these conclusions yield concerning what should have been a reasonable response on behalf of the defendant, as occupier and as having a commercial interest in having persons use these areas for, amongst other things, pedestrian purposes? It is my conclusion that, given the low magnitude of the risk in all of its manifestations, given the degree of probability being low of an accident resulting from this condition of the lip, and given the obviousness of the change of colouration of the surfaces and the remoteness of the likelihood of non-observation when taking the path which the plaintiff did, the reasonableness of response did not require any corrective action, even that undertaken some week, or weeks, later at no greatly significant cost.
- [47]In summary, the plaintiff has not established to the relevant standard that the duty of care that the defendant clearly owed to him was breached by permitting or allowing, or failing to remove, the slight lip that existed in the transition from the concrete slab of the docking area to the concrete slab of the walkway and general driving area. Noting that conclusion, and the reasons expressed for it, it would not be helpful to express any views about contributory negligence.
Damages
- [48]Even though I have found against the plaintiff on liability, it is necessary to canvass the issue of damages. The defendant has agreed that the plaintiff has suffered the following damages under the respective heads of damage:
- (a)Past economic loss$6,567.29
- (b)Interest on past economic loss$283.21
- (c)Superannuation loss on past economic loss$591.96
- (d)Past special damages$11,041.72
- (e)Future special damages$1,000.00
- (f)Fox v Wood damages$2,105.00
Hence, there remains for consideration the heads of damage of: general damages (including pain, suffering, and loss of amenities); and future economic loss.
General Damages
- [49]Because I have held that the CL Act is applicable, s 61 and s 62 require that what is now called “total general damages” are to be calculated on the basis of an assignment of a numerical value (the “injury scale value,” or ISV, on a scale running from 0 to 100, with the scale reflecting gradations of damages for injuries ranging from non-severe to those of the gravest conceivable kind). For this purpose, provisions are specifically prescribed under the Civil Liability Regulation 2003 dealing with the period from 1 December 2002 to 30 June, 2010, being the period within which the injury arose.
- [50]The court has before it the evidence of two medical witnesses. For the plaintiff, the orthopaedic surgeon, Dr Greg Gillett, was called as a witness and his report of 30 May 2008 was tendered as Exhibit 9. For the defendant, after negotiations between the parties’ respective counsel, the report of the other orthopaedic surgeon, Dr Peter Boys, was admitted as Exhibit 10, without the necessity of the specialist being called to give oral evidence. That report was dated 31 August 2007.
- [51]Because the report of Dr Boys was in no way contested, I turn to it first. After referring to the history of the fall, of the treatment had and of the arthroscopic examination on 28 February 2006, he referred to an MRI performed on the left knee on 26 June 2006 that showed changes consistent with Osgood Schlatter’s disease being evident. Then, after canvassing the plaintiff’s complaints, his activities of daily living and the concerns associated with his occupation, he canvassed the results of his examination and of plain radiographs of the left ankle taken on 5 August 2005 as well as the MRI studies of the left ankle done on 18 August 2005 and of the left knee on 26 June 2006. From those matters he moved to his opinion. Utilising the tables of AMA 5, he expressed the opinion that there was 7 per cent impairment of the left lower extremity, being a 3 per cent impairment of the whole person as a consequence to the injury sustained. With respect to the episodic symptoms associated with the Osgood Schlatter’s disease, he concluded that the plaintiff would appear to have developed strain symptoms associated with a long standing pre-existing condition in the region as a consequence of abnormalities of gait which he experienced following his ankle injury. Then, applying other tables under AMA 5, he gave the opinion that there was no quantifiable impairment of bodily function evident which is referable to that left knee. The report of Dr Gillett is, with respect, less than clear concerning the diagnoses reached. Before turning to that, it should be noted that the history and examination, together with review of the effect of the injury on the plaintiff’s daily life and occupation, is little different from that canvassed by Dr Boys, and, relevantly, by the plaintiff in his own brief evidence concerning the injury. In particular, the arthroscopy findings showed a multiple adhesion of the left ankle and a partial tear of the anterior talofibular ligaments which were resected. The diagnosis was of a left ankle sprain with ruptures of ligaments of the ankle joint and aggravation of the previous knee pathology in the form of Osgood Schlatter’s disease. The prognoses were that, in general terms, the plaintiff’s ankle and knee would remain as they were at the time of examination. Turning to the AMA 5 methodology, he advanced a number of different percentages as the impairment of lower limb function, although only in the range of 5 to 7 per cent, concluding that the appropriate measured impairment was a 7 per cent loss of lower limb function or 3 per cent loss of whole person function. He then turned to the left knee and concluded that AMA 5 did not have a adequate assessment of such a pathological process and so he made reference to the tables in the AMA 5 methodology “as a guide”. He stated that, using that methodology, he assessed him at 5 per cent impairment of lower limb function or 2 per cent loss of whole person function “due to the sequelae of this event and injury”. Although this report is not crystal clear, I take the opinions expressed to be two separate assessments, even though, with respect to the left knee, it is expressed in the very general terms of an impairment of the “lower limb.” On that approach, based on the fact that it is open to accumulate the percentages, the plaintiff has been left, on the basis of this report, as having a 5 per cent loss of his whole person function. In cross-examination Dr Gillett considered that it could be the case that an increase in walking over uneven ground by the plaintiff, whether he had originally injured the ankle or not, was the kind of thing that could make the condition of Osgood Schlatter’s disease symptomatic, adding that it was a possibility that that condition became symptomatic whether or not he had injured his ankle and that such a possibility would arise from doing a greater amount of walking, particularly over uneven ground. Given the circumstances of Dr Boys report – being an expert report – not being put in contention, and given the concession by Dr Gillett, I prefer the conclusions reached by Dr Boys that there is no quantifiable impairment of bodily function referable to the left knee arising from the injury on 4 July 2005, particularly where Dr Boys observed that the plaintiff did not suffer station and gait disorder at the time of examination and that physical examination of the left knee was unremarkable.
- [52]In which case, the conclusion reached is that, utilising the AMA 5 methodology, the plaintiff has been left with a 3 per cent whole person impairment as a result of an ankle ligament injury.
- [53]Turning, then, to the relevant Schedule 4 designation, the Civil Liability Regulation 2003 requires the Court to consider the range of injury scale values stated in this Schedule and that, when considering multiple injuries, the court must consider the range of injury scale values for the dominant injury, giving due recognition to the level of adverse impact of multiples injuries. It is also noted that the Court, in assessing an injury scale value, can have regard to matters, to the extent that they are relevant, concerning the person’s age, as well as pain, suffering and loss of amenities of life. Unsurprisingly, in considering the impact of aggravation, if any, the Court is entitled in that regard only to judge the extent to which the pre-existing condition has been made worse. Finally, while the extent of a whole person impairment it is an important consideration, it is not the only consideration affecting the assessment.
- [54]Item 143 of Schedule 4 of the Civil Liability Regulation 2003 has been adopted by both parties as the appropriate item in this case. It deals with a moderate ankle injury and gives as an example of such an injury a ligamentous tear causing moderate disability such as difficulty in walking on uneven ground. The additional comment noted in Item 143 is that an assessment at or near the bottom of the range will be appropriate if there is a whole person impairment for the injury of 6 per cent.
- [55]Given that Item 144 deals with a minor ankle injury but is otherwise not responsive to the injury suffered here, I accept that Item 143 is appropriate.
- [56]Although taking account of both parties’ submissions, given the conclusions by Dr Boys which I have accepted, I assess the injury scale value in this case to be 6.
- [57]Applying, then, Schedule 6A of the Civil Liability Regulation 2003 pursuant to s 6A of the Regulation, and applying paragraph 1 which deals with injuries suffered between 2 December 2002 and 30 June 2010, the general damages calculated are the sum of $5,000.00 and $1,200.00. This, in total, is $6,200.00. Thus, general damages are assessed at $6,200.00.
- [58]By reason of s 60 of the CL Act, no interest can be awarded on these general damages.
Future economic loss
- [59]Section 54 of the CL Act is inapplicable here because the amount to be awarded in a case such as this can only be assessed globally. For that purpose, s 55 states that the factors that the Court must consider. The opinion of Dr Boys about the plaintiff’s future working capacity is that his left ankle condition does not give rise to any working incapacity. Further, concluding similarly to Dr Gillett on this point, Dr Boys was of the opinion that no deterioration of the left ankle function would be anticipated.
- [60]Dr Gillett, for his part, after referring to the difficulties that the plaintiff described to him in relation to site work (being on his feet and travelling) gave the opinion that he thought the plaintiff would be better undertaking work in an office based environment because the pain and discomfort and the limitation associated with how he worked would continue to be a problem leading to losing time from work intermittently, if he did not work from home.
- [61]As I have already indicated a preference for the opinion expressed by Dr Boys, it remains to consider what the plaintiff himself indicated about his work restrictions. Under cross-examination, the plaintiff stated that he was able, from time to time, to take some time off if his leg hurt him to a greater extent than normal; but that he has not lost any money as a result. Further, he conceded that, since the accident, he has never cancelled a trip to a mining site, adding “not (as) yet”. The plaintiff indicated that he had been with his present employer for five years, that his employment was going well and that he was meeting his targets generally, including his bonus targets. His plans for the future were to stay with that employer and that there was nothing to suggest that he would not continue to be employed by that employer. By way of qualification, he stated that he was really trying hard not to let his injury to his ankle get in the way of his career and that his employment as a salesperson relied upon continuing what he had been doing to date.
- [62]I have not had the advantage in this case of any evidence from the plaintiff’s present employer, or any person responsible in that organisation who would be able to give evidence to such effect, that the plaintiff’s continuing employment is in any way in jeopardy because of the minor restrictions that even Dr Boys has noted that the plaintiff suffers in the course of his occupation. The plaintiff in his evidence indicated that he had a fair degree of latitude in his work, with the result that it was up to him to decide about the impact that any difficulty examining mine sites might have.
- [63]In the end, given that the plaintiff is presently aged 48 and that neither specialist orthopaedic surgeon is of the opinion that there will be any deterioration in his condition, it is very difficult to assess the extent of future loss of earning capacity given the plaintiff’s age, work history, absence of loss of earnings and his permanent, but not deteriorating, impairment.
- [64]While noting that the plaintiff has not suffered any loss of earnings in the past but noting that even Dr Boys concedes that he does have to exercise some care when visiting mine sites and that, even so, he does get occasional discomfort climbing on mills and gantries, it would be appropriate in this case to award some relatively low amount which would reflect that there may be some periods, from time to time in the future, when restrictions that flow from his capacity to examine difficult work sites might lead to some loss. Given that approach, I would assess the loss of earning capacity for the future in the sum of $10, 000.00, given that he has many years left in the work force.
Summary
- [65]In light of the conclusion that I have reached concerning liability, it is unnecessary for me to add together the various heads of damage that the plaintiff might otherwise have been awarded if he had been successful on the issue of negligence.
- [66]Because I will be giving judgment for the defendant against the plaintiff in this proceeding, the appropriate order for costs should be that the plaintiff pay the defendant’s costs of this proceeding, including any reserved costs, to be assessed on the standard basis.
- [67]But because the issue of costs might be subject to further arguments, including possible statutory effects, I am going to give that intimation only at this stage and will seek the parties’ submissions on costs on handing down this decision.