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Kelly v Trentham Holdings Pty Ltd[2012] QDC 141

Kelly v Trentham Holdings Pty Ltd[2012] QDC 141

DISTRICT COURT OF QUEENSLAND

CITATION:

Kelly v Trentham Holdings P/L & Ors [2012] QDC 141

PARTIES:

MAIREAD NORA KELLY
(Plaintiff)

v

TRENTHAM HOLDINGS PTY LTD (AS TRUSTEE FOR THE HAMMOND FAMILY TRUST)
(First defendant)

And

JOSEPH GERARD RICHARDS AND WILLIAM BOWMORE (AS TRUSTEES FOR THE BORRELLI INVESTMENT TRUST – TRADING AS TRENBOR PROPERTIES)
(Second defendant)

FILE NO/S:

857 of 2010

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

14 June 2012

DELIVERED AT:

Brisbane 

HEARING DATES:

4 and 5 June 2012

JUDGE:

Dorney QC DCJ

ORDERS:

  1. Judgment for the defendants against the plaintiff.
  2. All parties have leave to file, and serve, written submissions on costs by 4:00pm on 21 June 2012, if not otherwise agreed.

CATCHWORDS:

Personal injuries – principles of liability – inferential case – voluntary assumption of risk – contributory negligence – obvious risk –intoxication

Civil Liability Act 2003 (Qld) ss 9, 9(1), 9(2), 10, 13(1)-(4), 14, 14(1)-(2), 15, 15(1), 23, 23(2), 24, 46(1)-(4), 47, 55(1)-(3), 56, 59, 60, 61, 62

Civil Liability Regulation 2003 (Qld) ss 6, 7(1), Schedule 3, Schedule 4, Schedule 7

Workplace Health and Safety Act 1995 (Qld) ss 28, 30, 37A, 197

Angel v Hawkesbury City Council [2008] NSWCA 130

Astley v Austrust Ltd (1999) 197 CLR 1

Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469

Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380

Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388

French v QBE Insurance (Australia) Limited [2011] QSC 105

Hirst v Nominal Defendant [2005] 2 Qd R 133 

Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139

Jaber v Rockdale City Council [2008] NSWCA 98

Jones v Dunkel (1959) 101 CLR 298

Lakefox Pty Ltd v State of Queensland [2006] QDC 303 

Laoulach v Ibrahim [2011] NSWCA 402

Malec v J C Hutton Pty Ltd (1990) 169 CLR 638

Miller v Council for the Shire of Livingstone & Anor [2003] QCA 29

Mulligan v Coffs Harbour Council (2005) 223 CLR 486

Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341

Phyllis v Daley (1988) 15 NSWLR 65

Pollard v Trude [2009] 2 Qd R 248

Smith v Charles Baker & Sons [1891] AC 325

Swain v Waverley Municipal Council (2005) 220 CLR 517

Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160

Vairy v Wyong Shire Council (2005) 223 CLR 422

Vale v Eggins (2006) NSWCA 348

Van Eeden v Henry [2005] NSWCA 14

Wyong Shire Council v Shirt (1980) 146 CLR 40

COUNSEL:

J J Wiltshire for the Plaintiff

D L K Atkinson for the First and Second Defendants

SOLICITORS:

Murphy Schmidt Lawyers for the Plaintiff

Barry Nilsson Lawyers for the First and Second Defendants

Introduction

  1. [1]
    The plaintiff, then a 28 year old female, after attending a Christmas function (at which free alcohol was constantly available) at the Chalk Hotel in Stanley Street, Woolloongabba, was injured in the early hours of 9 December 2007 when she fell into a gap between the natural terrain of the land and a stairwell on a property adjoining the Chalk Hotel. She was considerably intoxicated at the time (to the extent that she had no memory at all of the events immediately preceding her fall).
  1. [2]
    The first defendant and the second defendants do not contest that either, or both, of them were occupiers of both of the Chalk Hotel and the adjoining property (“Office Premises”).
  1. [3]
    It is also not in issue that the Chalk Hotel and the Office Premises had adjoining car parking areas, with both areas being open for parking to patrons of the Chalk Hotel.
  1. [4]
    The issues for concern of the Court cover the liability of the defendants and what quantum of damages the plaintiff should receive if she were to be successful. Necessarily, particularly given the element of intoxication, contributory negligence arises as an aspect of the liability issue. I have concluded that there should be judgment for the defendants.

Background

  1. [5]
    The place where the fall occurred and the immediately surrounding areas are the subject of numerous photographs, the content of which is not in dispute. Thus, for present purposes, it is sufficient to describe that place as between a fence along the common boundary between the Chalk Hotel and the Office Premises, adjacent to the south-west corner of the Office Premises, and between the bark covered, natural level of the land between that fence and an external stairway on the western side of the Office Premises. This stairway had been cut into the surrounding ground. It led to an area beneath the building.
  1. [6]
    Although counsel for the defendants contended that the “gap” may have been the effect of the plaintiff’s fall, rather than its cause, it matters little in terms of the fact that an adult human was able to fall in the identified place.
  1. [7]
    As the photographs amply demonstrate, the hard surface areas of the car parks in question differ markedly from the bark covered surface of the land that needed to be traversed before reaching the place where the fall occurred. Additionally, that bark covered area contained some vegetation at the time and, close to the “gap”, there were ground retaining logs and at least one sawn log, also acting as a ground retainer. Although there was no measurement proffered to the Court about the distance between the end of the hard surface of the car park area on the Office Premises and the place where the “gap” was, given the presence of a small motor vehicle in an adjacent area, there would appear to be at least the length of such a small car which would have to be so traversed before the “gap” was reached. Although the photographs show the presence of a fence (at 90° to the main fence) now preventing entry to the place of the fall, it was not there at the time of the incident, but had been erected soon thereafter.
  1. [8]
    A coloured Google photograph which became, depending on particular witnesses being presented with it, Exhibits 5, 10 and 13, depicts where the incident occurred (in an approximate area designated “9”) and where the access way was between the two car parks in question (designated “10”). It can also be seen from that Google photograph, and more amply demonstrated in the other photographs tendered, that, looking towards Hubert Street from where the 2 car parks adjoined, there was a hard surface for the driving of vehicles, as well as for pedestrian movement (although down a ramp) to Hubert Street and that the vision from the designated point “10” to Hubert Street was generally unobstructed (at least down that particular access way).
  1. [9]
    As is also demonstrated from the photographs, there was no “warning” sign erected, whatever content that warning sign might be argued to have appropriately contained.

Principles of duty and breach

  1. [10]
    There is no dispute that there was a duty owed by the relevant occupier of the Office Premises to a lawful entrant, it being clear that the car park in the Office Premises was open as an ingress and egress access way for patrons of the Chalk Hotel. That said, for reasons later canvassed, there is nothing in the evidence which leads to a finding that there was any breach of any duty owed by the occupiers of the Chalk Hotel to the plaintiff.
  1. [11]
    The content of that duty has been succinctly stated by, amongst others, Gleeson CJ in Neindorf v Junkovic[1] where he held that the fundamental problem in occupier/entrant cases remains the extent to which 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].
  1. [12]
    Aspects of the content of that duty of care include the nature of the lawful entrance and the knowledge of persons likely to use such premises. Here, naturally, at that time of night on the changeover from Saturday to Sunday, the circumstances included the use by patrons of the Chalk Hotel of the premises for purposes of, amongst other things, egress in order to obtain transportation to other parts of the City after drinking alcohol.
  1. [13]
    As for breach, s 9 of the Civil Liability Act 2003 (Qld) (“CLA”) has effect in this civil claim for damages for harm. Although its expressed terms differ (at least in the words used) from the “far-fetched” or “fanciful” notion of a risk adopted by the High Court (as initially explained Wyong Shire Council v Shirt[2] at 47), there is, in this proceeding, no discernible difference. Thus, s 9(1) of the CLA states that a person does not breach a duty to take precautions against a risk of harm unless: the risk was foreseeable (that is, there is a risk of which the person knew or ought reasonably to have known); the risk was not insignificant; and, in the circumstances, a reasonable person in the position of the person would have taken the precautions. In deciding whether a reasonable person would have taken such precautions, s 9(2) requires the court to consider (among other relevant things): the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm.
  1. [14]
    The enquiry that is to be made, directed to identifying the reasonable response - if in fact any response is necessary - is prospective: see Mulligan v Coffs Harbour Council[3] per Hayne J at 501-502 [50]. An aspect of such looking forward to the prospect of the risk of injury is that, as Hayne J explained, there is no basis for assuming that the only risk to be considered by the reasonable person is the particular kind of risk “that came to pass at the place and in the way it did”.
  1. [15]
    With particular focus on the obviousness of the risk in question, Fraser JA in Ellis v Uniting Church in Australia Property Trust (Q,)[4] in the context of the possibility that users of a path (although there, a footpath) might not act carefully or prudently, held that it did not mean that a failure by the occupier to notice and correct the source of the risk “bespoke” negligence, particularly in circumstances where there was an express finding that the unevenness in question should reasonably have been observed by someone choosing to walk at that place, because that factor could properly be taken into account as bearing upon the question of whether the risk required a response: at [42].
  1. [16]
    It is, in general terms at least, important to bear in mind the expression by Gleeson CJ in Swain v Waverley Municipal Council[5] that the measure of careful behaviour is reasonableness and “not elimination of risk”, and that, while “to some extent their neighbours’ keepers”, occupiers are not their neighbours’ “insurers”: at 520 [5].
  1. [17]
    Neither side in this proceeding urged upon me – during the oral submissions (supplemented by contemporaneous writing) - that I need consider, apart from the sub-issue of contributory negligence, any further provision of the CLA other than s 14.
  1. [18]
    Section 14 of the CLA was raised in the context of contributory negligence in the Amended Defence. It covers the common law defence of volenti non fit injuria, although the statutory intervention reverses the onus of proof with respect to knowledge of an obvious risk: see s 14(1). As to the effect of s 14(2) of the CLA, a person is aware of a risk if a person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
  1. [19]
    Whether the plaintiff’s response in the Amended Reply that the plaintiff did not breach s 14 of the CLA is sufficient to be a pleading that the plaintiff was unaware of the risk, was not addressed in submissions by either counsel. But I am content to assume that the present response of the plaintiff is to such effect. Nevertheless, it does not relieve the plaintiff of discharging the onus of proving that she was not aware of the risk.
  1. [20]
    In consequence, it is therefore necessary for the Court to explore the following propositions:
  • was the risk an ‘obvious’ risk?;
  • if it was, has the plaintiff proved, on the balance of probabilities, that she was not aware of the risk (because if not, she is taken to have been aware of it)?; and
  • if she is deemed to be aware, has the defendant proved, on balance, that the plaintiff voluntarily accepted this risk?
  1. [21]
    Finally with respect to s 14 of the CLA, the obviousness of the risk falls to be determined in accordance with s 13 of the CLA. By s 13(1), an “obvious risk” is defined as being a risk to a person who suffers harm that, in the circumstances, would have been obvious to a “reasonable person” in the position of that person. Further, it is necessary to consider, in the eventual determination of obviousness, the various aspects contained in sub-sections (2), (3) and (4) of s 13 covering: obvious risks as including risks that are patent or a matter of common knowledge; a risk of something occurring as being able to be an obvious risk, even though it has a low probability of occurring; and a risk as being capable of being an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

“Obvious risk” generally, and concerning a warning

  1. [22]
    The plaintiff’s Statement of Claim raises not only a failure to provide a warning “as to the presence of the gap” by way of a sign or verbal warning but also a failure to provide signage to patrons as to the appropriate routes to “safely exit” the premises of the Chalk Hotel to a street: see sub-paragraphs (d) and (e) of paragraph 11.
  1. [23]
    Despite the above referred to submissions and although the Amended Defence admits both no warning and no signage - even though the matter was not raised directly by reference to any provision of the CLA - this Court is obliged to consider the effect of s 15 of the CLA, if for no reason other than the person (defendant) does not owe a duty to another person (plaintiff) to warn of an obvious risk to the plaintiff: see s 15(1).
  1. [24]
    As earlier observed, an obvious risk also arises for consideration because of s 14 of the CLA.
  1. [25]
    Necessarily, since s 15(1) is in Division 3, the meaning of “obvious risk” in s 13 applies to it as well. In any event, as later analysed, it is necessary, even on the application of common law, to consider the interplay between the obviousness of a risk and a duty to warn.
  1. [26]
    In the Queensland Court of Appeal decision of Pollard v Trude,[6] Holmes JA, writing the major judgment, held, with respect to ss 13 to 15 (inclusive) of the CLA, that the risk concerned is a “risk of harm”, which may vary in degrees of probability and obviousness: at 260 [32]. No cases were cited in any judgment, but Jaber v Rockdale City Council[7] was cited in argument.
  1. [27]
    Quite recently, the New South Wales Court of Appeal in Laoulach v Ibrahim[8] through Tobias AJA, with whom Giles and MacFarlane JJA agreed, referred to Jaber [where Tobias JA (as he then was) had written the major judgment], after noting that the question of “obvious risk” involves the determination of whether the plaintiff’s conduct involved a risk of harm which would have been obvious to a reasonable person in the plaintiff’s position, and noting that the test is an objective one - and thus must take account of the objective circumstances of a person whose conduct is being assessed – held that whether or not a risk is “obvious” may well depend upon the extent to which the probability of its occurrence is or is not readily apparent to a reasonable person in the position of the plaintiff, referring, with citation, to the conclusion that “obvious” means that both the “condition” and the risk are apparent to, and will be recognised by, a reasonable person in the position of a plaintiff, exercising ordinary perception, intelligence and judgment: at [79]-[81]. Elaborating on “condition”, he held that this referred to the factual scenario facing the plaintiff: at [82].
  1. [28]
    In the earlier decision of Sydney Harbour Foreshore Authority & Anor v Perrett & Anor[9] Handley AJA, with whom both Tobias and McColl JJA agreed, referred to a yet earlier decision of the New South Wales Court of Appeal of Angel v Hawkesbury City Council.[10] There it was said that a finding that a risk of harm is an “obvious risk” (within the meaning of the legislation) such that - pursuant to the provision analogous to s 14 of the CLA - the person who suffers harm is presumed to be aware of that risk, does not automatically lead to a finding of no breach of duty. He added that the purpose of the relevant provisions, at least in part, is to make it easier for a defendant to establish the common law defence of voluntary assumption of risk, and that, except with respect to an “obvious risk” which obviates any common law duty to warn (as s 15 of the CLA does), the provisions analogous to ss 13 and 14 of the CLA and, in particular, the statute definition of an “obvious risk” have no relevance to the question of breach of duty: at [24]. Handley AJA, went on to note that the passage in question from Angel was obiter dicta: at [25]. In the end, Handley AJA referring to submissions that the passage from Angel was wrong and should not be followed, held that there was no utility, because of the first instant judge’s findings of fact in that case, in creating further dicta: at [26]-[28].
  1. [29]
    The above referred to the passage from Angel, there being no local appellate consideration of it, permits me to accept that as useful guidance; and I so do.

Credibility of plaintiff and her witnesses

  1. [30]
    Before considering the making of any findings as to what occurred, it is necessary in this case, particularly due to the considerable conflicts in evidence regarding events of that evening, to resolve matters of credibility.
  1. [31]
    The plaintiff’s memory of generally what occurred is patchy (to say the best about it).
  1. [32]
    No medical evidence of any kind was led to explain the condition of her memory. There was nothing pleaded of any kind of neurological insult or of any kind of psychiatric or emotional disturbance relevant to the incident which might seek to explain the condition. Accordingly, the only reasonably probable inference is that the concession she made – reported in Exhibit 3 (which contained agreed documents for tendering) to the staff at the Emergency Department of the Princess Alexandra Hospital (namely, that she had drunk approximately two bottles of wine “tonight”) - means that her level of intoxication was so significant that she was left with this particular state of memory. Such a level of intoxication is consistent with the evidence given by Mr Jason Miller, the supervising security guard on duty at the Chalk Hotel. His evidence was to the effect that when he saw her, particularly the last time, she was intoxicated, even though she was capable of walking and engaging in basic communication, although she was “hostile”.
  1. [33]
    Given that low level of her recollection of that evening, I do find it difficult to accept as a true recollection that events after the exclusion of her then partner (later husband), Mr Michael Ennis, were as she remembered them and not as they were put to her (based primarily upon the evidence of Mr Miller).
  1. [34]
    But even if it were not for that conflict – which for reasons that I will canvass in detail later, I prefer the evidence generally of Mr Miller to those persons whose evidence conflicts with it – the plaintiff’s answers in cross-examination about other aspects of her case leave me with an uneasy feeling that she was less than forthcoming in her responses in the witness box. For instance, although she was claiming as part of her past economic loss that she was unable to work over a period in late December 2007 following her surgery on 18 December 2007, and where she in her evidence-in-chief asserted a significant incapacity to do very much at all, she “forgot” that she was not “laid up in bed” and in fact had travelled to Sydney during that time where she had been out to the hairdressers and to dinner at a friend’s place. She also “forgot” that 6 months ago she had completed a 10km “race”. As well, such previous statements as she had given concerning her recollection were contrary to the detail of the recollection that she had in the witness box, particularly as to events after communicating to Mr Ennis that they should catch a taxi home. There were several other, more minor, discrepancies which would not, of themselves, have proved much but which, in the context of the other concerns I have, reinforce the view that I have formed that I do not place much value on what the plaintiff did say about what she recollects of that evening, at least in so far as it concerns events immediately before and after the expulsion of Mr Ennis from the Chalk Hotel by the security guards.
  1. [35]
    As for the potential for the plaintiff’s case to be supported by the evidence of Mr Ennis, I conclude, also, with respect to him that he was very considerably affected by the alcohol that he had drunk (admitting a consumption in the order of 10 to 12 bottles of Corona beer). Important in this conclusion is the evidence of Mr Ennis’ immediate supervisor and friend, Mr Charlie Green, who finally agreed that Mr Ennis was “very intoxicated”, “incoherent” and “virtually falling asleep” (while leaning up against the wall). Mr Green had to concede that prior inconsistent statements made by him, which were more adverse to Mr Ennis than the oral evidence he originally gave, reflected the reality of Mr Ennis on that evening. The nature of Mr Ennis’ reaction to Mr Miller – who otherwise was seen by Mr Green to be a calming and conciliating influence on the fracas that developed around Mr Ennis when he was first excluded - together with the evidence of the other security guard called, Mr Majid Ahmidi, demonstrate this high level of intoxication. Mr Green was unable to give any evidence about the actual events leading up to the plaintiff’s fall, apart from seeing her enter the Office Premises car park.
  1. [36]
    The fact that Mr Ennis’ recollection of the events that occurred after his exclusion differs markedly from that of Mr Miller (who, as I have indicated, I accept) means that he is also, in the view that I have formed of him from his evidence in the witness box, a poor historian of events that evening. Again, there were many discrepancies between the oral evidence he gave in-chief and prior inconsistent earlier statements.
  1. [37]
    The reasons that I have accepted the evidence of Mr Miller are not only from his general responses as I observed them in the witness box but from the fact that he had no apparent interest in the outcome of the trial in this proceeding (even though there were some general allegations about failing to direct the plaintiff about directions that marginally concerned him, or the company he worked for, which had contracted security services to the corporate occupiers of the Chalk Hotel), together with the general support for his behaviour from Mr Green. This is despite criticisms made of him during the submissions because of alleged inconsistency between an Incident Record he made on the evening and the evidence he gave.
  1. [38]
    Turning to the alleged inconsistencies raised by the plaintiff concerning that Incident Record, there is, indeed, no reference to a “knife” which Mr Miller thought he saw in Mr Ennis’ possession and it does not contain detail of the few times after the initial exclusion of Mr Ennis when Mr Miller saw him and the plaintiff again. Further, it is indeed true that the Incident Report does not refer to an aspect of Mr Miller’s evidence where he stated that at the time he had last seen the plaintiff she had been in the car park of the Chalk Hotel saying that she was “lost”. But it is clear from the Incident Report that he referred to Mr Ennis’ exclusion in the context of Mr Ennis later becoming threatening when he located the plaintiff and, after trying to help, was met with Mr Ennis’ threats, including those of “I’ll stab you. I’ll kill you. I’ll rip your head off”.
  1. [39]
    It is unsurprising that the Incident Report is in such an abbreviated form. It is not a full, detailed statement of what occurred that evening. Furthermore, it contains enough of the history of that evening to link the excluded Mr Ennis (for intoxication and later violent behaviour) with the person whom Mr Miller found in the company of the injured plaintiff. Additionally, I accept as reasonable the response by Mr Miller concerning why he omitted any reference to a knife in the Incident Report, namely: that he was not “100% sure”; that he had no right to “strip search” patrons; and that the person whom he believed had once had the knife (Mr Ennis) no longer had it. In addition, he conceded that there may have been confusion between him seeing the watch of Mr Ennis and mistaking it for a knife.
  1. [40]
    In those circumstances I utterly reject the plaintiff’s submission that Mr Miller “lied” in his testimony and that, where the aspects of Mr Miller’s evidence differed from the plaintiff and Mr Ennis, they were “a subsequent invention”. I accept Mr Miller as a witness of credit.
  1. [41]
    Given the general lack of cross-examination of Mr Ahmidi and given his adamant restatement in cross-examination of Mr Ennis’ aggression and threats at the time of the attempted rescue of the plaintiff, it only adds to the strength of the conclusions that I have reached.
  1. [42]
    The final witness called by the defendants was Mr Jason Titman who was the general manager of the Chalk Hotel at the time. He also observed that Mr Ennis, even while comforting the plaintiff, acted in a “very aggressive manner towards everybody that was in attendance”. Additionally from his experience of 12 years in the hotel industry, he was of the belief that Mr Ennis was “certainly under the influence of alcohol”, describing particular aspects of Mr Ennis’ behaviour that he noticed.
  1. [43]
    In summary, I have formed the conclusion that the evidence both of the plaintiff and Mr Ennis concerning what occurred that evening is manifestly unreliable, except to the extent to which it is confirmed by the evidence of other witnesses, apart from Mr Green. While I accept that Mr Green was relatively forthcoming, he clearly had a partisan view about the treatment by the security guards of Mr Ennis and clearly attempted to play down the extent of the lack of sobriety of Mr Ennis.
  1. [44]
    As I have already indicated, I accept the evidence given by Mr Miller about the various episodic contacts he had with both the plaintiff and Mr Ennis between the time of the exclusion of Mr Ennis and his coming upon the scene of the fall for the first time.

“Warning” under common law

  1. [45]
    Were it to be held by this Court that s 15 of the CLA was inapplicable because the risk in question did no satisfy the “obvious risk” definition, what common law principles would then be applicable?
  1. [46]
    In Vairy v Wyong Shire Council,[11] Gleeson CJ, speaking of the nature of warning signs in general, concluded that warning signs can only serve a purpose if they are likely to inform the person of something the person does not already know, or draw attention to something the person may have overlooked or forgotten, with the obviousness of the danger being potentially important in deciding whether a warning is required: at 47 [7].
  1. [47]
    Although not directly relevant in factual terms, the remarks by Mahony JA in Phyllis v Daley,[12] with respect to a log in a parking area outside a Hotel in a country region - being that it would cause no surprise if logs were to be upon the ground in such an area and any danger from them was obvious and ordinary - are apt: at 75.

Inferential reasoning

  1. [48]
    From the evidence that I have accepted – which will be discussed in more detail later – I find that there is no historian of what occurred once the plaintiff moved from the carpark at the back of the Chalk Hotel to the carpark at the back of the Office Premises. To the extent to which I do accept the evidence of Mr Ennis, given that he was on the scene relatively soon after - accepting as I do that he heard the plaintiff’s screams as she was injured - doing the best that I can from his fuzzy memory of what occurred, he must have been at least a distance behind the plaintiff which would have exceeded any of his estimates (which varied from 4m to 8m), given the distance shown by the photographs between the entry to the carpark of the Office Premises and position “9” on the Google photograph. Mr Ennis was not able to give any evidence of any observance of the plaintiff, even as to the direction she took, immediately after entering that carpark of the Office Premises.
  1. [49]
    A recent illustration of the proper approach to the determination of the question of liability in these circumstances of absence of eyewitness evidence was undertaken by the Queensland Court of Appeal in Miller v Council for the Shire of Livingstone & Anor.[13]  As succinctly noted by McPherson JA, it is not enough to think up competing hypotheses that are “more or less favourable” to the success of the plaintiff’s claim, noting in that case that no one could say that any one of them was more probable than another because no one could say in fact what had happened: at [4]. He then added that, in the absence of evidence, speculation is not enough because it was necessary for the plaintiff in that case to prove how or why he fell and that, while inferences from proved facts will do, mere hypotheses will not: also at [4]. Helman J (with whom both McPherson and Jerrard JJA agreed), quoting from Jones v Dunkel[14] per Dixon CJ, stated that the Court is not authorised “to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others” as “the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied”: at [31]. Helman J added that in reaching that definite conclusion, the tribunal of fact will apply its common sense and general knowledge of the world to the facts and, in doing so, consider explanations of what happened which would spring to the mind of an ordinary, reasonable person: also at [31]. Appropriate to the present case is the further remark by Helman J that ordinary human experience shows that there can be physical effects of the consumption of a large quantity of liquor and effects on mood if that liquor is alcoholic: at [34].
  1. [50]
    Assistance is also derived from a number of decisions referred to in Lakefox Pty Ltd v State of Queensland.[15]  Of particular utility is a summation of McColl JA, with whom Mason P and Giles JA agreed, in Hunt v Knight Frank (NSW) Pty Ltd.[16]  So summarised, the succinct statement encompassed the obligation that it is necessary that the primary judge is able to conclude that the circumstances give rise to a “reasonable and definite inference” rather than “to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture”, while noting that the Court is entitled to draw inferences from “slim circumstantial facts that exist so long as that goes beyond speculation”. Also in Lakefox, reference was made to a remark by Spigelman CJ in Van Eeden v Henry[17] that it is not open to make a determination on the issue of what occurred unless, among competing scenarios, there is one which can stand alone “as a rational and more probable” explanation for that action: at [36].

Competing hypotheses

  1. [51]
    The evidence led did not reveal any examination, much less a thorough examination, of the place where the plaintiff fell. Even where she fell is somewhat speculative in that the only identification of place is where she was located by Mr Ennis and from which the ambulance service, with the help of fire and rescue services, was finally after a considerable time (some 1.5 hours) able to remove her.
  1. [52]
    Even from those photographs tended in evidence which were taken a few days after the incident, it is not possible to say that any particular disturbance, even if it were to be determined as a disturbance, of the surrounding ground next to the stairway has been established by the evidence as having a relationship to the fall.
  1. [53]
    Nevertheless, given the place where the plaintiff was finally located, and given that the last observance of her was entering the carpark of the Office Premises, two competing hypotheses can be advanced as to the path she followed. The plaintiff either could have traversed the bark covered ground adjacent to the erected fence between the two properties or could have gone to the top of the stairway and made her way down the steps. Necessarily, given that she admitted that she was wearing high heels which were at least several inches high, she would have had considerable difficulty with both avenues. Nevertheless, quite a significant difficulty with taking the avenue of the stairway was the grating which led for some distance before the concrete stairs themselves began. Again, it was not the subject of any examination in the evidence but it does seem unlikely that a person wearing high heels would have got very far in attempting to negotiate that initial grate, although she could have placed her weight on the balls of her feet (thereby lifting the heels above any catching point). Another difficulty that faces the scenario of taking the stairway is the mechanism of the fall, with the top rail seemingly being too high for someone to sit upon, or even to lean over so as to become unbalanced.
  1. [54]
    Accordingly, at least at this stage of attempting to determine what avenue was taken, the more probable inference is that she followed the line of traversing the bark covered ground. It is difficult to know what to make of Mr Ennis’ concession that he remarked to officers in the ambulance that both he and the plaintiff were “running” from security guards. Given my reluctance to accept his evidence generally, I conclude that he was simply exaggerating the “fault” of others in relating a version of what occurred. I therefore do not accept, on balance, that the plaintiff was other than moving at a walking, or slower, pace.
  1. [55]
    Of course, even the discussion so far indicates the real difficulty the plaintiff has in establishing negligence on the facts of the case.
  1. [56]
    Accepting then that the path taken was along the bark covered ground, it is impossible to know whether the plaintiff, in her intoxicated state, simply walked to the place where she fell or somehow lost her balance when traversing some unknown part of the avenue that she had taken. She freely conceded in cross-examination that, if you are in a high heel on things like lawn or sand, you “tend to capsize to one side” and, therefore, you would “want an even surface”.
  1. [57]
    But, assuming for the moment that the mechanism of her fall once she had passed some distance along the bark covered earth is consistent with a route that should not have been taken by anyone concerned about their safety, the enquiry leads on to the reason why that direction was taken.
  1. [58]
    Although the plaintiff has submitted that it was “entirely understandable” that the plaintiff went that way, I do not accept that that accords with a more probable inference from the established facts. As previously indicated, I accept, as Mr Miller deposed that he had indicated on several occasions to the plaintiff, in particular, how the couple might have made their way down Reid Street to Stanley Street (Mr Miller having accompanied both of them to Reid Street itself through the western carpark entrance to the Chalk Hotel and, later, after he had returned to the Chalk Hotel carpark and found the plaintiff “lingering” near the boundary fence and having indicated that that carpark was now a “no good zone” for her, having escorted her again to Reid Street and suggested she catch a taxi from Stanley Street). Even on the plaintiff’s own evidence, she had seen the lights on Hubert Street and was “was just going to get a taxi”. It is interesting that, in her marking of Exhibit 5, she placed an arrow that directly faced Hubert Street. In answer to a question in cross-examination, the plaintiff stated that she could offer no explanation for why she did not go to Hubert Street or even to Reid Street, although with respect to the latter she denied that she was aware that there was an exit to Reid Street, despite the fact that it was clearly visible once a person had passed the back of the Hotel Premises.
  1. [59]
    Also importantly, in cross-examination, the plaintiff conceded, with respect to the bark covered ground, that it would be particularly hard to negotiate in a set of high heels such as those which she was wearing, and even conceded that, in retrospect, it was a “crazy place” to go.
  1. [60]
    Before considering the scant evidence provided by the observers on the evening, it is necessary to deal, albeit briefly, with Mr Ennis’ evidence of those last moments. Although it was submitted on behalf of the plaintiff that Mr Ennis saw the plaintiff take a turn to the left “in the direction of Stanley Street”, that is not what his evidence actually states. According to the evidence given by Mr Ennis – about which I have considerable doubt, in any event, as to its specific accuracy – the plaintiff walked in the direction of the exit from the carpark of the Chalk Hotel, with Mr Ennis somewhere behind her, and they both “walked around the corner”. This aspect is somewhat clarified in the cross-examination of Mr Ennis where he stated that the plaintiff had “gone past the gate before me” and that he had lost sight of her. When asked what that term meant, Mr Ennis replied that it was the exit and that he was coming to the exit and the plaintiff was going around ahead of him. Given the angle at which both say they approached this exit (Exhibits 5 and 10), that answer is equally, if not more, consistent with heading in the direction of Hubert Street as heading in the direction of Stanley Street. Nevertheless, given where the plaintiff eventually ended up, I accept that the more probable inference is that she did turn sharply left for some yet to be explained reason.
  1. [61]
    As for the lighting in the immediate area, there was no evidence that any change in the intensity of the lighting caused any, even temporary, lack of vision. Although Mr Ennis maintained that the bark covered ground was “not well lit”, I accept the substantially uncontradicted evidence of Mr Titman. His evidence was that:
  • the carpark at the back of the Chalk Hotel was “extremely well lit”;
  • the exit from the carpark of the Chalk Hotel to Reid Street was “very clearly lit”, being specifically lit up as an entrance both for patron pedestrian access and for vehicle access;
  • the exit from the carpark at the Chalk Hotel to that of the Office Premises had two lights on the right of that opening as a person so exited (which is also shown clearly in the photographs);
  • the carpark of the Office Premises, at the time, had a light at the back of the building shining on to that carpark which was so bright that it caused complaints to be made by residents over the other side of Reid Street about its brightness; and
  • there were a couple of fluorescent lights on the side of the Office Premises which faced the fence between the two carparks.
  1. [62]
    With reference particularly to the area of the bark covered ground (over which I have concluded, on the balance of probabilities, that the plaintiff took), Mr Titman was adamant that it was “well lit” and that every one of the lights that he had mentioned was working that evening.

Conclusions regarding mechanism of fall

  1. [63]
    The defendants submitted that there were many scenarios which were consistent with the evidence, specifically identifying 4 suggested ones: see paragraph [23] of the written Submissions for the Defendants.
  1. [64]
    In contrast, the Plaintiff’s Outline of Submissions had but one, namely, that the plaintiff was intent on getting a taxi, was heading towards Stanley Street to do that and, since there was no reason to go down the stairway, was proceeding past the stairs. Although those Submissions referred to “they”, it is clear that on any acceptable version of events, Mr Ennis was merely trailing at some distance the plaintiff who was at least upset, if not angry, that Mr Ennis had been excluded from the hotel for drunkenness.
  1. [65]
    I conclude that a more probable inference of the mechanism of the injury from the evidence that I have accepted as basal facts is that the plaintiff took the route she did because of her confusion (i.e. being “lost” due to her consumption of alcohol). I conclude that she made no rational decision to take that avenue upon based upon an intention to catch a taxi at Stanley Street. I reach that conclusion because, accepting at least that part of her evidence that acknowledged that she saw lights on Hubert Street, that she wanted to get a taxi, and that the lighting was really very good (disclosing a clear access to Hubert Street) – particularly in circumstances where the plaintiff herself concedes that the bark covered ground over which she proceeded to travel was a “crazy” way to go – I find that she “blindly” proceeded to enter on to the bark covered ground and, given the nature of her footwear, became unbalanced, or otherwise without any real attention to it walked to the place where she fell.
  1. [66]
    Although there are other scenarios open, in the circumstances of this case I conclude that they are merely speculative, and that the one which I have adopted is the more probable of any rational hypothesis.

Effect of intoxication

  1. [67]
    In paragraph 20(b) of the Amended Defence, the defendants have pleaded that, by reason of the plaintiff being intoxicated at the time of her fall, any award of damages should be reduced by operation of s 47 of the CLA.
  1. [68]
    No party referred to s 46 of the CLA. By s 46(1) it is mandated that certain principles apply in relation to the effect that a person’s intoxication has “on the duty and standard of care that the person is owed”.
  1. [69]
    Given that s 46(2) of the CLA does not apply because the place where the plaintiff in fact fell was not “licensed premises” within the meaning of s 4 of the Liquor Act 1992 (Qld) , it is necessary to confine any consideration to sub-paragraphs (a), (b) and (c) of s 46(1). Those provisions have been recently considered, in some detail, by Fryberg J in French v QBE Insurance (Australia) Limited.[18]  With respect to paragraph (a) there, as here - since that applies in deciding whether a duty of care arises - that question was not really in dispute: at [96]. As for paragraph (b), it has not been alleged here, or there, that the plaintiff was owed a duty of care merely because she was intoxicated (where, in fact, the plaintiff has denied she was): at [97]. As for paragraph (c), as Fryberg J noted, this creates “a greater complexity”. His conclusion was that it did not operate to reduce the standard of care which must be exercised by someone owing a duty of care, citing Vale v Eggins.[19]  By reference to Vale, Fryberg J concluded that paragraph (c) operates by reference to the standard of care owed to a person behaving in the same way and in the same condition as the plaintiff, albeit not by reason of intoxication: at [102].
  1. [70]
    Accepting that analysis, there is no reason here to conclude that the standard of care otherwise dealt with above should be modified because of the plaintiff’s intoxication leading to consideration of appropriate legal reaction regarding similar behaviour (though not induced by intoxication).
  1. [71]
    In the scenario that I have accepted, no reasonable person would have attempted to take the path that the plaintiff did, particularly given the state of lighting which permitted, if a person was capable of doing so, easy observation of the surrounding area and its total unsuitability as a means of access. It is difficult to think of a greater contrast between the paved area of the car park and the bark covered area, particularly in circumstances where the lighting and unobstructed view of a person wishing to leave the car park of the Office Premises could either move directly towards Hubert Street or turn back to the way from which that person came and then easily observe Reid Street.
  1. [72]
    I will, later, separately consider the issue of intoxication insofar as it affects contributory negligence. It should be noted that the definition in Schedule 2 of the CLA refers to the fact that a person is under the influence of alcohol or a drug “to the extent that the person’s capacity to exercise proper care and skill is impaired”. What I have concluded here, particularly from the totally unexplained inability for the plaintiff to remember anything of substance about what occurred, that her capacity to exercise proper and skill was certainly impaired.

Liability

  1. [73]
    From the conclusions that I have already reached I find that it was not within the contemplation of any ordinary, rational person that a reasonably well lit area of ground over which bark had been placed and beside which a stairway had been constructed and in front of which was a hard surfaced paved car park would be the avenue to take as being an appropriate and safe access way to anywhere, even if the person was unfamiliar with the layout of the Chalk Hotel and its surrounds. There is, for instance, no evidence at all that the plaintiff had, generally, a good sense of direction which would have guided her to take such a path towards Stanley Street, despite the fact that there were proper and appropriate paths which would lead her to such a destination, particularly for the footwear she was wearing. The fluorescent lighting on the western side of the Office Premises was clearly different from the general car park lighting; and placed merely for the purposes of illuminating, rather than leaving in the dark the different bark covered ground.
  1. [74]
    In terms of the requirements mandated by s 9 of the CLA:
  • the risk of harm was foreseeable in that an occupier ought reasonably to have known that there was a not insignificant risk that a person might – even if rather stupidly – put themselves in a position of traversing the bark covered ground in the immediate vicinity of the stairway;
  • the probability that such harm would occur if care were not to be taken was slight, even though the likely seriousness of the harm was certainly more than minor;
  • the cost of taking the precaution that was effected soon after the incident by the erection of a barrier (by way of the erection of a fence across the potential path) was not heavy; and
  • there is nothing that social utility has to say in this particular case.
  1. [75]
    Expanding on the reason why the probability of harm was slight, I refer again to the more than adequate lighting, the clear vision of other paths of exit, and the ready availability in two directions of a hard surfaced pathway to exit. As for the plaintiff’s submission that the ramp was “fairly steep” on the way to the exit to Hubert Street, there was simply no evidence to that specific effect. The only evidence led about its gradient was from Mr Titman. He expressed the conclusion that it was correct to say that there was “quite a steep ramp” going down from the first car park at the back of the Office Premises to the second car park adjacent to Hubert Street. Neither he nor anyone else was asked to express the view that it was inappropriate, or not, for pedestrian travel. To the contrary Mr Titman indicated that the surrounding lighting was always well lit to depict the car parks and well lit to depict the ramp even though there were not “a great deal of patrons that enter or exit that way, but they do”. Lastly, in re-examination, Mr Titman, when specifically asked what gradient the ramp had, was unable to specify it exactly but stated that all that he knew was that it had a “fairly rough texture” on it, that it “certainly (was) not a slippery gradient” and that it was “walked (on) every day of the week by people coming and going” both in wet conditions and during the night as well, expressing the view that he had no reason to believe there was any issue with walking on it.
  1. [76]
    From a prospective view of what ought to have been a reasonable response, I conclude that the negative factors that I have mentioned did not mean that the occupiers of the Office Premises failed to act carefully and prudently by failing to “fill or cover the gap”. Nothing in evidence demonstrated that it was viable, much less how costly the work would have been to do it. As for “failing” to erect a barrier, it was, to paraphrase Gleeson CJ in Swain, not their obligation to eliminate any risk. The fact that there was no known fall there previously was a factor relevant to a reasonable response. Analogously with Ellis, the very unevenness generated by the bark covered ground was readily observable and when taken with all the other relevant factors did not require a response of a barrier, despite the relatively low cost of implementing that post-incident response. Of course, the fact of doing so does not, amongst other effects, constitute any admission of liability: see s 10(c) of the CLA.
  1. [77]
    The next significant matter that arises is whether a warning sign should have been erected.
  1. [78]
    There was no attempt at all from the plaintiff’s perspective to indicate what the content of such a warning sign would be. It could not, as a sensible measure, simply follow the wording of that particular of negligence, if only because any precluding sign would not simply warn about the “gap” but would, surely, also warn against any walking along the bark covered ground. Apart from the consequence that any such sign would itself act as a barrier, it is difficult to conceive of the nature of the signage. Too much would not precisely inform; and too little might be of little utility. And it is not for the court to speculate on the content of that sign.
  1. [79]
    But even if the content were to be clear, it also would need to be effective. Before turning to a consideration of the circumstances under the CLA, from the common law perspective, any warning sign would be unlikely to inform an entrant such as the plaintiff, if sober, of something that such a person did not already know, or would be likely to draw her attention to something that she might have overlooked or forgotten. As she expressed, herself, in her evidence, it was a “crazy place” to attempt to walk.
  1. [80]
    Turning, then, to the CLA, I conclude that:
  • the risk was patent, in the sense that anybody looking at the area would notice that the stairway was cut into the surrounding ground and that it did not provide a seamless transition of a relatively flat surface, or one capable of being traversed by foot, from such ground to the stairway;
  • the risk of harm, even though I have concluded that it had a low probability of occurring, was still an obvious risk; and
  • while I accept that the condition or circumstance that gave rise to the risk was not prominent or conspicuous, it was physically observable and therefore was properly characterised as an “obvious risk”.
  1. [81]
    By reason of that analysis, the risk here can be properly determined to be an obvious risk. On that conclusion, s 15(1) of the CLA has application and, therefore, the defendants, in the position as occupiers of the Office Premises, did not owe a duty to the plaintiff to warn of that risk.
  1. [82]
    Before leaving the general consideration of signage, the plaintiff also pleaded that the defendants did not provide signage “to direct patrons as to the appropriate routes to safely exit the Hotel Premises to a street”. I have assumed that the exit referred to is any rear exit.
  1. [83]
    The photographs tendered show that signage was erected which, taken together with the more than adequate lighting, permitted all patrons to perceive it at the rear of the Hotel and, thereby, to exit safely, either to Hubert Street or to Reid Street. I conclude there is nothing in that particular of negligence.
  1. [84]
    Staying with the fact of direction, the plaintiff also pleaded that the defendants failed, through their servants or agents to direct the plaintiff “as to which direction to go to safely exit the Hotel Premises to a street”. On the evidence that I accepted, particularly that of Mr Miller, I conclude that that particular has not been established. There was nothing in the evidence to impel the conclusion, on such acceptance, that it was additionally necessary for him to make any specific reference to avoidance of “the gaping hole” (a description preferred by the plaintiff in the Outline of Submissions – which I reject in any event).
  1. [85]
    Finally, the plaintiff pleaded a breach of statutory duty pursuant to ss 28 and 30 of the Workplace Health and Safety Act 1995 (Qld). Not surprisingly, the defendants in their Amended Defence took issue with the applicability of any such statutory duty. In the plaintiff’s Outline of Submissions the plaintiff retreated to a position of abandoning the breach of statutory duty, acknowledging that ss 37A and 197 of that Act expressly provided that any breach did not give rise to a civil cause of action. Nonetheless, the plaintiff maintained the argument that the obligations in that Act would be a reason, in addition to a “civil duty”, why the defendants ought to have given consideration to the safety of the premises and acted accordingly. There is nothing on the material led in the evidence, or in the substance of the arguments made on behalf of the plaintiff, that inclines me in any way to conclude that that Act has traction here. There is no analogy to traffic regulations which apply to all motorists. The point that the defendants quite rightly make is that there is no basis for the assertion that a “basic risk assessment” – as contended for by the plaintiff – “would have identified the risk”. As I have indicated, I have concluded that there was a risk; but that there are reasons in this case why a reasonable response did not call for the measures contended for by the plaintiff.

Voluntary assumption of risk

  1. [86]
    Because the burden of proof is now on this plaintiff to prove that she was not aware of the risk, and since she has no recollection of anything at all which would touch upon the consideration of this matter, it cannot be said that she has discharged that burden cast upon her pursuant s 14(1) of the CLA.
  1. [87]
    The second aspect of voluntary assumption, although strictly out of order according to s 14(1) of the CLA, is whether the risk is an “obvious risk”. For reasons that I have canvassed in detail earlier, I have concluded that it is such a risk.
  1. [88]
    The third aspect is whether the defendant has proved, on the balance of probabilities, that the plaintiff voluntarily accepted the risk of which the plaintiff is deemed to have been aware. The authorities, including Hirst v Nominal Defendant,[20] hold that the conduct must truly be voluntary on the part of the plaintiff: at 143-144 [22], per Keane JA.
  1. [89]
    To my mind, an insuperable problem arises from the lack of any direct evidence of what was in the plaintiff’s contemplation in terms of voluntary acceptance. It is not sufficient to say that she had lost any capacity to make rational judgments because of her intoxication, because that would be insufficient to establish the requirement of such acceptance, unless it could be otherwise inferred.
  1. [90]
    On the inferences that are open, noting that it is for the defendant to prove this particular element of volenti, I am unable to conclude that there is available as a more probable inference of all the competing inferences that the plaintiff voluntarily agreed to accept the risk. After all, as some authorities instruct, the free and voluntary acceptance involves the concept of consent: see, for instance, Lord Halsbury LC’s statement in Smith v Charles Baker & Sons[21] that a “person who relies on the maxim must shew a consent to the particular thing done”: at 336.

Contributory negligence

  1. [91]
    Besides reliance upon s 47 of the CLA, the defendants in their Amended Defence pleaded, in paragraph 19, particulars of contributory negligence. They included:
  • electing to traverse a garden bed rather than making use of the dedicated roads and pathways;
  • failing to take any or any reasonable precaution for her own safety in electing to traverse the garden bed;
  • failing to avoid the accident by exercising reasonable care and skill;
  • failing to keep a proper lookout for her own safety;
  • failing to avoid an obvious risk in breach of s 14 of the CLA; and
  • failing to follow Mr Miller’s directions to safely exit the premises to the street.
  1. [92]
    I will deal with the general allegations of contributory negligence first and then turn to the effect, if any, of the operation of s 47 of the CLA.
  1. [93]
    Even for a person initially unfamiliar with the layout of the two car parks in question at night, the course that the plaintiff took indicates that she was not keeping a proper lookout for her own safety in that she chose a path that, as has already been described by her, was one that took her to a “crazy place”. Even the first few steps on to the bark covered ground should have raised in the mind of a person paying due regard to her own safety that this was an improbable “path” to anywhere, especially given the nearby hard paved surfaces of the car parks.
  1. [94]
    Further, because I have found that the risk of harm was an obvious risk, it cannot be said that a reasonable person in her position would not have been aware, in what was otherwise a reasonably well lit area, that a stairway adjoining the route that she was about to take was not so constructed as to provide a seamless ramp for movement from the adjoining ground to the stairway itself.
  1. [95]
    Considering, then, s 47 of the CLA: s 47(1) is stated to apply if a person who suffered harm was intoxicated at the time of the breach of duty. On my findings, that must necessarily be triggered. Therefore, pursuant to s 47(2), contributory negligence, will, subject to other provisions of s 47, be presumed.
  1. [96]
    The rebuttal of that presumption is dealt with by s 47(3) of the CLA. But it requires the plaintiff as the person the subject of the presumption to establish on the balance of probabilities that: the intoxication did not contribute to the breach of duty; or that the intoxication was not self-induced. Quite obviously, the intoxication was self-induced. Given my earlier findings about the plaintiff’s apparent blindness to what she was doing by reason of her intoxication, it is difficult to escape the conclusion that she has not established, on the balance of probabilities, that she did not contribute to the breach of duty.
  1. [97]
    What consequences then flow? By s 47(4) of the CLA, if the presumption has not been rebutted, the court must assess damages on the basis that the damages to which the person will be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.
  1. [98]
    While recognising that it is, for the purposes of this proceeding, unnecessary to move to making a finding on contributory negligence, since it is appropriate to do so for established reasons, I move to consider – if it is possible - what percentage should be found to be “appropriate”.
  1. [99]
    Because the CLA applies, it is necessary also to take note of s 23 of the CLA. By s 23(2) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person; and the matter is to be decided on the basis of what that person knew or ought reasonably to have known at the time.
  1. [100]
    Additionally, s 24 of the CLA states that, in deciding the extent of a reduction in damages by contributory negligence, a court may decide a reduction of 100% if the court considers it just and equitable to do so, with the result that the claim for damages is defeated.
  1. [101]
    It has been held in the New South Wales Court of Appeal in Consolidated Broken Hill Ltd v Edwards[22] that s 23 does not depart from, but rather only entrenches, the existing law: at [67]-[70].
  1. [102]
    The existing law, as noted by Fryberg J in French, was stated, in terms, by Gleeson CJ in Cole v South Tweed Heads Rugby League Football Club Ltd[23] to be that the law makes intoxicated people legally responsible for their actions and, as a general rule, that they should not be able to avoid responsibility for the risks that accompany a personal choice to consume alcohol: at 476-7.
  1. [103]
    Even though Cole was concerned with negligence, now that ss 9 and 10 of the CLA are made expressly parts of the calculus for determining contributory negligence, they have direct relevance here. As to the determination of the appropriate percentage, the High Court in Astley v Austrust Ltd[24] referred both to the fact that contributory negligence focuses on the conduct of the plaintiff and that the duty owed by the defendant, although relevant, is one only of the many factors that must be weighed in determining whether the plaintiff has so conducted himself, herself or itself that there has been a failure to take reasonable care for the safety of the person: at 15 [30].
  1. [104]
    In the balancing to be undertaken, it is necessary, as already observed, to start with the figure of 25%. It is also important to note that the defendants would have been found to be guilty of negligence themselves. That creates a particular problem here where no finding has been made that they are so negligent.
  1. [105]
    Therefore, the best that I can do is to eschew the balancing and simply indicate that the plaintiff’s behaviour was a very significant aspect of why the breach of duty occurred, although, if a finding were to be made, then the seriousness of the injury shows that there was some important aspect of the case which would have dealt with the failure of the defendants to take reasonable precautions to prevent an injury of that kind occurring.
  1. [106]
    In the circumstances of this case, I cannot make any further sensible conclusions.

Nature of injury, and aftermath

  1. [107]
    The plaintiff is aged 32 (rising 33), having been born on 20 June 1979. The plaintiff alone called expert medical practitioners to speak to the injury, its aftermath and prognoses.
  1. [108]
    Dr David Morgan, an orthopaedic surgeon, examined the plaintiff on 20 August 2009. The summary of his written opinion shows that:
  • the plaintiff suffered a fracture involving the right ankle, as well as generalised cuts, scratches, bruises and abrasions;
  • the clinical examination showed the plaintiff had a normal gait and was able to walk on the heels and balls of both feet, without apparent difficulty;
  • the plaintiff had problems hopping on the right lower limb and had only 90% of a normal squat capacity on the right side;
  • the right calf musculature was wasted with a reduction in girth of 2 cm;
  • the right ankle joint was swollen and the joint had lost 10 degrees of both dorsiflexion and plantar flexion;
  • there was some diminution in right subtalar movement with losses of 10 degrees of both inversion and eversion;
  • radiographs performed on 1 May 2009 showed that a 7 hole plate with 6 screws had been applied to the lower fibula, with an additional screw used in an inter-fragmentary mode and also showed that the fracture complex had healed and that the ankle joint appeared to be normal;
  • on AMA5 there was a 3% loss of whole person function on Table 17-11 as well a further loss of 1% of whole person function which, in combination, exhibited a total loss of 4% as a result of the ongoing right ankle malady; and
  • the plaintiff will have a permanent reduction in her ability to engage in jogging and other “excessive” load bearing activities.
  1. [109]
    I will deal with other aspects flowing from that report when considering specific heads of damage.
  1. [110]
    The other specialist medical practitioner called, Dr T J Harris, a plastic and reconstructive surgeon, examined the plaintiff on 2 November 2009. His description of the scar was that it was on the lateral aspect of the right ankle, being a surgical scar 9 cm in length, running downwards over the lateral malleolus.
  1. [111]
    Dr Harris opined that it was a “reasonable” scar, with some slight irregularity which was then maturing. His prognosis was that the scar would be permanent and that he would not expect any great degree of further spontaneous improvement, noting that the scar may be needed to be entered again if the metal fixation is removed. Using AMA 5, he opined that the impairment of the whole person due to the scar, and the swelling of the limb, was 7%.
  1. [112]
    There is no doubt that the initial difficulties in removing the plaintiff from the position where she fell would have caused her much distress. There was also the excruciating pain which she underwent.
  1. [113]
    From the scene of the incident she was taken to the Princess Alexandra Hospital where she was admitted and where she spent two days, being an overnight inpatient. A plaster of paris backslab was applied for immobilisation and she was issued with crutches.
  1. [114]
    The plaintiff, after resting at home for a week, was readmitted to the Princess Alexandra Hospital on 18 December 2007 where she underwent an open reduction and internal fixation of the right ankle fracture, again being an inpatient for two days. And, again, a plaster cast was applied and maintained for eight weeks. She used the crutches for a total of ten weeks.
  1. [115]
    Treatment involved visits to the Outpatients Department of the Princess Alexandra Hospital and the plaintiff attended a physiotherapist on some eight to ten occasions. As Dr Morgan has noted, the plaintiff has not been in receipt of any other particular treatment until the time of his examination.
  1. [116]
    In terms of disruption to her personal life, the plaintiff made a graduated return to work after three weeks absence from work. She has remained in fulltime duties since then, although she now is an administrative support officer with the Queensland Police Force.
  1. [117]
    Concerning her loss of amenities, the plaintiff had enjoyed walking, jogging and attending a gym prior to the accident. Subsequently, she has also continued her programme of exercise at Curves.
  1. [118]
    Dr Morgan has noted that the plaintiff will continue to have some discomfort with prolonged standing, walking or running and that it is unlikely that she would make an effective return to jogging, although being capable of swimming, bike riding and gym work.
  1. [119]
    The cross-examination of each of Dr Morgan and Dr Harris was brief.
  1. [120]
    Dr Morgan, after noting that AMA5 does not purport to measure disability, as opposed to incapacity or impairment, accepted that the impairment to the plaintiff was “quite confined”. When pressed with his diagnosis that it was unlikely that the plaintiff would make an effective return to jogging yet was able to complete the Bridge to Brisbane 10 km run in September 2011, undertaking it in 91 minutes, he responded that the fact that she had some pain, but did not seek professional help, afterwards would fit within “the gamut of the disability” that he saw.
  1. [121]
    As for Dr Harris, he accepted that the scar could be covered up, for instance, by a sock, even a short sock, and conceded that he did not expect, as a result of the scar, “any degree of affect on her function”, although there would be a few limitations in performance of activities in daily living.
  1. [122]
    It is to be added that the plaintiff, in accordance with the opinion expressed by Dr Morgan, stated that she would undertake further surgery for removal “of the metalwear from the right ankle”.
  1. [123]
    From the plaintiff’s own evidence, which is not inconsistent with the views expressed by Dr Morgan, the symptom that she continues to suffer in her ankle, besides swelling on a regular basis, is aching after walking or standing for significant periods (for example, when shopping). Additionally, the ankle aches in cold weather, it affects her choice of footwear and the scarring has led to some embarrassment, particularly earlier on.

Effect on employability

  1. [124]
    Although Dr Morgan expressed the view that the plaintiff had not been exposed to further remunerative loss after her return to fulltime duties in December 2008, he did express the opinion that her future remunerative prospects had been “marginally reduced”, because she would be unsuited to heavy laborious forms of manual activity or duties requiring prolonged standing, walking, running, jumping or the carrying of heavy objects. He added that, provided the plaintiff can secure sedentary work in an office environment, he could see no orthopaedic contraindication to her continuing in gainful employment through to a normal retirement age.
  1. [125]
    In the evidence given to the court, Dr Morgan admitted that he had no memory of the plaintiff telling him anything about her wanting to join the police service as an enlisted officer, and had no handwritten record of it. As to the categories of work that she could not now do, he indicated that it would cover “a plethora of semi-sedentary or heavy laborious tasks”. In re-examination, with respect to working for the Queensland Police Force, Dr Morgan stated that he could foresee some difficulty but that he was uncertain whether that would preclude her from the force or not, because “that was obviously not in his sphere”.

General damages

  1. [126]
    This, along with several other heads of damage are subject to the provisions of the CLA and the Civil Liability Regulation 2003 (“CLR”). Since by s 7(1) of the CLR the regulation in force immediately before the commencement “continues” to apply to injuries arising before the commencement of the 2008 Amending Regulation - which did so, effectively, from 1 July 2009 - it is to Reprint 1A, not 1B (or later), that reference should be had.
  1. [127]
    Pursuant to s 61(1)(c)(i) of the CLA, s 6 of the CLR designates it and the relevant Schedule as providing the rules under which the court “must” assess the injury scale value (“ISV”) for an injury. In particular, s 6(4) of the CLR provides that Schedule 3 provides matters to which a court should have regard in the application of Schedule 4 which, by s 6(2), provides the ranges of ISVs for particular injuries.
  1. [128]
    By reason of s 62 of the CLA, general damages must be calculated, for an injury arising on or after 2 December 2002 to and including 30 June 2010, by the provisions prescribed for the period under a regulation: see s 62(2). Reprint 1A does not contain ss 6A or 6B. But to prevent an absurdity, noting that an Act prevails over a regulation in the event of conflict, I will take note of s 6A of Schedule 3 of the CLR and calculate according to Schedule 6A, s 1: see Pearce and Geddes, Statutory Interpretation in Australia (7th ed) at [7.17].
  1. [129]
    The relevant provisions of Schedule 3 include s 3 dealing with multiple injuries. I hold that s 4 does not apply because s 4(1) is not triggered as the court does not consider the level of adverse impact of the multiple injuries here is “so severe” that the maximum dominant ISV is inadequate to reflect the level of impact.
  1. [130]
    Hence, pursuant to s 3(1) of Schedule 3 the court must consider the range of ISVs for the dominant injury of the multiple injuries and by s 3(2), in order to reflect the level of adverse impact of multiple injuries, the court may assess the ISV as being higher in the range of the ISVs for the dominant injury than the ISV the court would assess for the dominant injury only.
  1. [131]
    It is important to note that s 9 of Schedule 3 states that, in assessing an ISV, the court may have regard to other matters to the extent that they are relevant in the particular case, with examples referring to age as well as pain, suffering and loss of amenities of life. Section 10 states that the whole person impairment, while an important consideration, is not the only consideration.
  1. [132]
    I accept that Item Injury 143, dealing with a moderate ankle injury, is the appropriate item for it under Schedule 4. I also accept that the relevant Item Injury for the scarring is Item Injury 155.
  1. [133]
    The whole person impairment resulting from the scarring (being 7%) is on its face higher than the whole person impairment relating to the ankle injury (being 4%). But s 3 of Schedule 3 of the CLR provides the relevant trigger for determining whether the dominant injury is in fact the ankle injury (which on the face of the injuries would, apart from the percentages, appear to be more important). By Schedule 7, the Dictionary, the “dominant injury” of multiple injuries is defined to mean, relevantly, the injury of the multiple injuries “having the highest range”. In turn, the “highest range” is defined to mean the “range” of ISVs having the “highest maximum” ISV. “Range” itself, in relation to an ISV for an injury, is defined to mean the range of ISVs for the injuries set out in Schedule 4.
  1. [134]
    Item Injury 143 has, as the highest maximum ISV, 10. Item 155 has, as the highest maximum ISV, 25.
  1. [135]
    Accordingly, as a matter of law, I hold that the dominant injury is the scarring. Because there is overlap between the two percentages given, noting that Dr Harris has also taken the swelling of the right leg into account, I conclude that the relevant ISV for present purposes, noting the factors that I am required to take into account include that an ISV at or near the bottom of the range will be appropriate if there is a single noticeable scar on 1 leg, with some minor cosmetic damage, an ISV of 10 is assessed. Applying s 6A of the CLR, and thereby s 1 of Schedule 6, an award of $11,000.00 would be calculated.

Past economic loss

  1. [136]
    In the plaintiff’s Statement of Claim she claims $2,670.90. That is particularised on a basis that, subject to arguments to be next considered, would generate that loss over that time. The arguments against specific items in that calculation include:
  • on 17 December 2007 the plaintiff admitted that she went to work for a few hours, conceding that she would be paid per hour for the time that she was there; and
  • the risk of harm, even though I have concluded that it had a low probability of occurring, was still an obvious risk; and
  • the plaintiff took a short time for a holiday from 24 to 27 December 2007 (although it should be noted that she did not disagree with the proposition that she took four days off at the end of December “for Christmas”).
  1. [137]
    In the absence of any evidence that the plaintiff’s contractual terms with the National E-Health Authority did not permit her to be paid for public holidays, and in the absence of any evidence that the 4 days over Christmas were not granted by her contractor as such relevant holidays, the only deduction that I will make is for a net loss of two hours on 17 December 2007. That equates to a reduction of $34.00. Accordingly, I would allow, for past economic loss, the sum of $2,636.90.

Interest on past economic loss

  1. [138]
    By s 60(2) of the CLA, interest awarded on damages compensating past monetary loss must not be more than interest at the appropriate rate and must be related in an appropriate way to the period over which the loss was incurred, with the appropriate rate being the rate for 10 year Treasury bonds published by the Reserve Bank of Australia: see paragraphs (a) and (b) of subsection (2); and see subsection (3). I accept that the 10 year Treasury bond rate for the beginning of the current quarter from 1 April 2012 is 4.13%.
  1. [139]
    Although the past economic loss was all suffered by late January 2008, the plaintiff has claimed interest at the established rate of 4.13% as if that loss was accruing over the whole of the 4.5 years from early December 2007. I do not accept that s 60(2)(b) of the CLA requires it to be calculated in quite that way. I hold that the proper application in this case of s 60(2)(b) permits me to allow interest at the rate of 4.13% on the sum of $2,636.90 for 4.25 years. The interest yield would be, therefore, $462.84.

Future economic loss

  1. [140]
    It is accepted by the plaintiff that she is not currently losing income and that she “mostly” copes with her current employment.
  1. [141]
    I accept that while she has not lost any claimable income in the past since she returned to full-time work, she has had, from time to time, had difficulties in her duties both with respect to the National E-Health Authority and with the Queensland Police Service. I accept, therefore, that she has a potential to be at a disadvantage on the open labour market should she find herself unemployed and that she might, even though it would occur rarely, be required to take days off for which she might not have available to her sick leave or recreational leave.
  1. [142]
    The plaintiff in her Outline of Submissions does not, however, seek a loss for the future, in so far as it has an economic base, relying upon such factors. Rather, the plaintiff asserts that she has been unable to fulfil her long term ambition to be a police officer.
  1. [143]
    The problem that I see with this submission is that her application to join the police service in Dublin failed because of a failure to pass a required examination. Although I accept that the plaintiff has made enquiries about joining the New South Wales Police Service, even though she did not proceed at that time, she did not apply to join in Queensland before the incident, although she had also obtained the relevant application forms for it. As she expressly stated, she would not have been successful in either, in that she did not obtain permanent residency until 2008, after the incident occurred.
  1. [144]
    The plaintiff called no evidence from the Queensland Police Service, or from any person who had direct knowledge of what was required for entry into it, both in terms of the examination and in terms of physical fitness.
  1. [145]
    It is not sufficient to rely upon an indication given by Dr Morgan, particularly where he deliberately disassociated himself from having any knowledge about the relevant physical requirements.
  1. [146]
    Accordingly, I do not have sufficient evidence from that which was led at trial which would enable me to conclude, other than on a speculative basis, that the plaintiff could not now join the Queensland Police Service because of her disability and impairment, or that she would have been able to pass the required examinations in any event. There just is not enough evidence presented to the court to permit the court to conclude that she has established any relevant base. It is important also that, because of the application of the CLA, s 55 of the CLA be considered. That particular provision, by s 55(1), provides that s 55 applies if a court is considering making an award for loss of earnings that are unable to be precisely calculated by reference to a defined weekly loss. The section being triggered, s 55(2) provides that the court may only award damages if it is satisfied that the person has suffered or will suffer loss having regard to the person’s age, work history, actual loss of earnings, any impairment and other relevant matters.
  1. [147]
    Although in assessing damages for future economic loss at common law the court will, generally, apply the principles derived from Malec v J C Hutton Pty Ltd,[25] the degree of probability in this case is, as I have indicated, purely speculative so far as the Police Service is concerned.
  1. [148]
    But because of the other grounds that I have mentioned – which I hold can come within s 55(2) of the CLA - I will proceed to a consideration on that basis. In doing so, I must, in accordance with s 55(3), state the assumptions on which such an award is based and the methodology that is used to arrive at the award.
  1. [149]
    I do find that the plaintiff has demonstrated a fair degree of stoicism. I accept that, consistently with the evidence, both written and oral, of Dr Morgan, she continues to suffer pain and discomfort and swelling of the right leg, particularly after engaging in significant activity involving standing or walking.
  1. [150]
    Additionally, Dr Morgan has been clear in his evidence that there are jobs which might otherwise be thought to be within her range of consideration, which are now unavailable to her. Even so, there is no indication given by Dr Morgan that there is likely to be any deterioration in her condition.
  1. [151]
    All this means that it is unlikely that she will seek work outside the administrative/secretarial kind of work in which she has engaged so far. That being so, it is unlikely, except if she is cast upon the open labour market by forced redundancy, or some other similar cause, that she will not continue to work at the kind of employment she has always done. There has been no evidence that other jobs – apart from that in the Queensland Police Service – would give her any more net income per week than her present job does. That leaves for consideration simply the prospect of future unemployment. Since it is not inconceivable that, despite her very good employment history and her stoic attitude to work, there might be periods of unemployment, I conclude that some amount ought to be allowed for this contingency on a Malec basis. But given that no evidence has been led of which I can take note, apart from general judicial notice about Australia’s comparatively low unemployment rate and reasonable economic outlook, it is impossible to do better than assess a global figure on the assumptions that I have made. This would accord with the prospect of loss of employment of some three months. On the present figures of the plaintiff earning almost $40,000.00 net per year, the methodology I use is to take 25% of that, which would generate a figure of $10,000.00.
  1. [152]
    In addition, I accept that the plaintiff will, in accordance with Dr Morgan’s recommendations for surgery, undertake that operative procedure. For that she will require three weeks off work and will sustain a loss of $2,250.00.
  1. [153]
    Therefore, in total, her future economic loss would be $12,250.00.

Superannuation

  1. [154]
    Both for past and future superannuation it is common between the parties, and consistent with s 56 of the CLA, that 9% is chosen.
  1. [155]
    Hence, for past loss that would generate $237.32 and for future loss would generate $1,102.50. In total, the figure would be $1,339.82.

Gratuitous care

  1. [156]
    As a result of the evidence given, it is conceded by the plaintiff that there is no support for a claim that would exceed the threshold mandated by s 59 of the CLA.

Special damages

  1. [157]
    It is, as contended for the plaintiff, admitted on the pleading that the plaintiff incurred pharmaceutical expenses of $127.98 and travel expenses of $73.22.
  1. [158]
    Further, there is a refund to the Princess Alexandra Hospital of $3,802.00.
  1. [159]
    The plaintiff has claimed recent expenses. The first is the sum of $80.00 in respect of a visit to a podiatrist on 7 September 2011. This was alleged to have been necessary following an aggravation of her ankle pain. Unfortunately, there is no medical evidence which supports such an aggravation as needing such treatment. On 18 November 2011 she attended a physiotherapist at a cost of $60.00. She stated that this was because of increased swelling and pain after spending long periods on her leg at and following her wedding. The cost of the physiotherapist is allowed on the basis that it is consistent with Dr Morgan’s opinions concerning the swelling and pain, even though the matter was not addressed with him in his oral evidence.
  1. [160]
    In total, therefore, the special damages to be awarded would be in the sum of $4,083.20.

Interest on special damages

  1. [161]
    On the same basis as interest was awarded before on past economic loss, I allow interest at the rate of 4.13%. Again, while it might be said that sum of $60.00 for the physiotherapist was suffered recently, the other expenses date from a considerable time ago. In consequence, I would intend to allow interest at that rate for 4 years on all sums paid, apart from the $60.00. The sum generated would be $33.23.

Future expenses

  1. [162]
    Because of my early conclusions concerning the future operative treatment advised by Dr Morgan, I will allow the cost of that operative procedure in the sum of $3,000.00.
  1. [163]
    There has been no evidence led about what pharmaceutical, or any other, expenses would be following that surgery. It is impossible to pluck a sum such as $500.00 out of the air. Nevertheless, noting that the plaintiff incurred pharmaceutical expenses originally of $127.98, I would allow an award for such expenses at $150.00.

Award of damages

  1. [164]
    As indicated above, the damages that I would have awarded under each head of damage are as follows:-
  1.  

General damages

$11,000.00

  1.  

Past economic loss

$2,636.90

  1.  

Interest on past economic loss

$462.84

  1.  

Future economic loss

$12,250.00

  1.  

Past loss of superannuation

$237.32

  1.  

Future loss of superannuation

$1,102.50

  1.  

Special damages

$4,083.20

  1.  

Interest on special damages

$33.23

  1.  

Future expenses

$3,150.00

 

TOTAL

$34,955.99

Summary

  1. [165]
    Because I have determined that there is no negligence established in this proceeding, there will be judgment for the defendants against the plaintiff, with costs.
  1. [166]
    Since there are costs outcomes which are dependent upon legislative provisions, unless the matter can be agreed at the time of handing down this judgment, I will give each party time to file, and serve, written submissions on costs.

Footnotes

[1] [2005] HCA 75; (2005) 80 ALJR 341.

[2] (1980) 146 CLR 40.

[3] (2005) 223 CLR 486.

[4] [2008] QCA 388.

[5] (2005) 220 CLR 517.

[6] [2009] 2 Qd R 248.

[7] [2008] NSWCA 98.

[8] [2011] NSWCA 402.

[9] [2010] NSWCA 160.

[10] [2008] NSWCA 130.

[11] (2005) 223 CLR 422.

[12] (1988) 15 NSWLR 65.

[13] [2003] QCA 29.

[14] (1959) 101 CLR 298 at 305.

[15] [2006] QDC 303.

[16] [2005] NSWCA 139 at [42]-[43]: at [35].

[17] [2005] NSWCA 14 at [23].

[18] [2011] QSC 105.

[19] (2006) NSW CA 348.

[20] [2005] 2 Qd R 133.

[21] [1891] AC 325.

[22] [2005] NSWCA 380.

[23] (2004) 217 CLR 469.

[24] (1999) 197 CLR 1.

[25] (1990) 169 CLR 638.

Close

Editorial Notes

  • Published Case Name:

    Kelly v Trentham Holdings P/L & Ors

  • Shortened Case Name:

    Kelly v Trentham Holdings Pty Ltd

  • MNC:

    [2012] QDC 141

  • Court:

    QDC

  • Judge(s):

    Dorney DCJ

  • Date:

    14 Jun 2012

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Angel v Hawkesbury City Council [2008] NSWCA 130
2 citations
Jump To
Cite 1 - [2008] NSWCA 130
Cite 2 - [2008] NSWCA 130
Astley v Austrust Ltd (1999) 197 CLR 1
2 citations
Jump To
Cite 1 - (1999) 197 CLR 1
Cite 2 - (1999) 197 CLR 1
Cole v South Tweed Heads Rugby League Club Ltd (2004) 217 CLR 469
2 citations
Jump To
Cite 1 - (2004) 217 CLR 469
Cite 2 - (2004) 217 CLR 469
Consolidated Broken Hill Ltd v Edwards [2005] NSWCA 380
2 citations
Jump To
Cite 1 - [2005] NSWCA 380
Cite 2 - [2005] NSWCA 380
Ellis v Uniting Church in Australia Property Trust (Q) [2008] QCA 388
2 citations
Jump To
Cite 1 - [2008] QCA 388
Cite 2 - [2008] QCA 388
French v QBE Insurance (Australia) Limited [2011] QSC 105
2 citations
Jump To
Cite 1 - [2011] QSC 105
Cite 2 - [2011] QSC 105
Hirst v Nominal Defendant[2005] 2 Qd R 133; [2005] QCA 65
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 133
Cite 2 - [2005] 2 Qd R 133
Hunt v Knight Frank (NSW) Pty Ltd [2005] NSWCA 139
2 citations
Jump To
Cite 1 - [2005] NSWCA 139
Cite 2 - [2005] NSWCA 139
Jaber v Rockdale City Council [2008] NSWCA 98
2 citations
Jump To
Cite 1 - [2008] NSWCA 98
Cite 2 - [2008] NSWCA 98
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Lakefox Pty Ltd v State of Queensland [2006] QDC 303
2 citations
Jump To
Cite 1 - [2006] QDC 303
Cite 2 - [2006] QDC 303
Laoulach v Ibrahim [2011] NSWCA 402
2 citations
Jump To
Cite 1 - [2011] NSWCA 402
Cite 2 - [2011] NSWCA 402
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
2 citations
Jump To
Cite 1 - (1990) 169 CLR 638
Cite 2 - (1990) 169 CLR 638
Miller v Council of the Shire of Livingstone [2003] QCA 29
2 citations
Jump To
Cite 1 - [2003] QCA 29
Cite 2 - [2003] QCA 29
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
2 citations
Jump To
Cite 1 - (2005) 223 CLR 486
Cite 2 - (2005) 223 CLR 486
Neindorf v Junkovic (2005) 80 ALJR 341
2 citations
Jump To
Cite 1 - (2005) 80 ALJR 341
Cite 2 - (2005) 80 ALJR 341
Neindorf v Junkovic (2005) HCA 75
2 citations
Jump To
Cite 1 - (2005) HCA 75
Cite 2 - (2005) HCA 75
Phillis v Daly (1988) 15 NSW LR 65
2 citations
Jump To
Cite 1 - (1988) 15 NSW LR 65
Cite 2 - (1988) 15 NSW LR 65
Pollard v Trude[2009] 2 Qd R 248; [2008] QCA 421
2 citations
Jump To
Cite 1 - [2009] 2 Qd R 248
Cite 2 - [2009] 2 Qd R 248
Smith v Baker & Sons (1891) , A.C., 325
2 citations
Jump To
Cite 1 - (1891) , A.C., 325
Cite 2 - (1891) , A.C., 325
Swain v Waverley Municipal Council (2005) 220 CLR 517
2 citations
Jump To
Cite 1 - (2005) 220 CLR 517
Cite 2 - (2005) 220 CLR 517
Sydney Harbour Foreshore Authority & Anor v Perrett & Anor [2010] NSWCA 160
2 citations
Jump To
Cite 1 - [2010] NSWCA 160
Cite 2 - [2010] NSWCA 160
Vairy v Wyong Shire Council (2005) 223 CLR 422
2 citations
Jump To
Cite 1 - (2005) 223 CLR 422
Cite 2 - (2005) 223 CLR 422
Vale v Eggins (2006) NSW CA 348
2 citations
Jump To
Cite 1 - (2006) NSW CA 348
Cite 2 - (2006) NSW CA 348
Van Eeden v Henry [2005] NSWCA 14
2 citations
Jump To
Cite 1 - [2005] NSWCA 14
Cite 2 - [2005] NSWCA 14
Wyong Shire Council v Shirt (1980) 146 C.L. R. 40
2 citations
Jump To
Cite 1 - (1980) 146 C.L. R. 40
Cite 2 - (1980) 146 C.L. R. 40

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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