Nudd v State of Queensland[2012] QDC 64

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 21 December 2002 the plaintiff, while an inmate at the Sir David Longland Correctional Centre, was in the common area of his unit when he fell heavily onto his right-hand side suffering a fracture of the neck of his right femur.  As it happened a surveillance video camera in the unit was pointing at the area where the plaintiff fell, and his fall was captured on the surveillance tape, although the quality of the picture from the camera in the exhibits put in evidence was quite poor.  Nevertheless, there can be no doubt that the plaintiff fell.  What cannot be ascertained from the video is whether the plaintiff fell, as he claimed, because of the presence of a small quantity of some liquid on the floor, and if so whether the fall was therefore caused by the negligence of the defendant.  Contributory negligence and quantum are also in issue.

Background

2. [2]
   Prior to his incarceration the plaintiff had suffered an injury in September or October 2000 while at work: p 15.  This was a serious fracture of his right ankle, which required surgery, but the plaintiff subsequently developed complications.  As well, his treatment was in a sense complicated by the fact that on 3 May 2001 he was arrested in the United States and extradited to Australia in February 2002.  By the middle of 2002 he had been transferred to the centre, and on 22 September he was hospitalised for further surgery to treat an infection in the fracture site.^[1]He returned to the centre on 9 December 2002, mobilised on crutches.  Because of the ankle condition he was unable to work while in the centre.

3. [3]
   On 21 December 2002 the plaintiff was in K Block, a two-storey cell block housing about 30 inmates, with a large common area:  p 15.  This had a kitchen area where the inmates would prepare their own meals, and other facilities such as bathrooms, toilets, a telephone and at least one television; opposite the television, which was mounted on a high bracket, there were some short metal bench seats which were fixed to the floor:  p 16, p 43.  The entry door to K Block was located between the telephone and the television, a solid door with a glass panel at about eye level.  The surveillance camera could be manipulated so that it could show different areas and to some extent zoom in on what was happening, but it appears that ordinarily it was left pointed at the entrance door.

4. [4]
   The daily routine was that cells were unlocked at about 6 am, the inmates had breakfast after which those who had jobs to go to would ordinarily go to them, while others like the plaintiff spent the day in the unit, also having lunch and dinner before being locked in their cells about 7‑7.30 pm:  pp 16, 17.  The inmates made their own meals and I was told there were tables and chairs where they could eat, though these were not visible in the video that I saw.  The plaintiff tendered a surveillance video of the whole day, Exhibit 2, and edited extracts of Exhibit 2 showing the parts of more significance for the plaintiff’s case:  Exhibit 3.  The defendant tendered an extract which was supposed to show the period leading up to and immediately after the fall in slow motion, though it did not seem to me that it was significantly slower than the other exhibits:  Exhibit 4.

5. [5]
   The tape shows the plaintiff at times sitting on one of the fixed seats facing the television set, generally reading a newspaper.^[2]He is seen at one stage to be picking up a mug of something from time to time from his left and then putting it back there; he told me that he kept a box beside him on the seat where he used to keep snacks, and he also used the box as a sort of table:  p 42.  On a couple of occasions he was seen to move around, when he used crutches and did not appear to be putting any weight on his right foot.  He appeared to be quite adept at using the crutches.

6. [6]
   Shortly before the fall he was seen on the left-hand side of the screen, and then he moved across the screen from left to right, and out of the picture. He subsequently returned to the right side of the picture carrying something in his left hand, which he put down on his seat. He then moved over to the left, and back so that he was standing in front of his seat and facing it; there was another inmate standing behind the seat, and they appear to be in conversation. It is not entirely clear that the plaintiff moved back slightly at this point; he may have simply stood up after bending forward to speak to the other inmate, which would give the impression that he was moving back slightly. The person he was speaking with turned away, and it appears the plaintiff began to move to his right,^[3]although he may have been turning to sit down, as he claimed:  p 19, p 34.

7. [7]
   I was given a bundle of agreed documents which became Exhibit 1, which is in two volumes.  Most of this material did not appear to be directly relevant to anything in issue in the proceeding, but at the back there were a set of five stills which had been taken from the surveillance camera:  Document 16.  In the first, the plaintiff seems to be standing up normally on both crutches; the heads of both crutches are visible under his arms.  The plaintiff said that the end of his right crutch slipped on some liquid on the floor, and went out from under him with the result that he fell to his right:  p 19.  The second image appears to show the point just after something has happened; the plaintiff’s head is lower and to the right, and it is apparent from his right arm that something has happened to the crutch, although the right crutch is not visible at all; it appears no longer to be under the right shoulder, but the lower part of the crutch may be obscured by the other inmate who was standing behind the chair, and who appears at this stage not to have realised what was going on.  If the foot of the crutch did slide out from under the plaintiff, it must have gone to his left or forward more than to his right, otherwise more of the crutch would be visible.

8. [8]
   The following still shows him falling to his right; his right leg is out to some extent, presumably in an instinctive reaction to the fall, though if he did try to use the right leg to break the fall I suspect it would have been of little use and probably very painful. It may be that one of the reasons why he fell so heavily was that he was fighting an instinctive use of his right leg to break his fall. He appears to fall on his right hand side and may have rolled briefly onto his stomach before ending up on his back on the floor. Another inmate came over to him and helped him to a seated position, and then two inmates helped him back to his feet and across to the chair where he sat down again, and put his right foot on a plastic chair which had been positioned nearby all along.

9. [9]
   The plaintiff said that he fell when he moved back and began to turn around, though I cannot see much of this manoeuvre on the video; presumably he fell at an early stage in the process.^[4]He said that he ended up face down on the floor, and in that position he saw a puddle of water which he described, which he said he would not have seen but for the fact that his face was in that position:  p 19.  It does appear from the video that he was briefly face down after the fall, though he did quickly roll onto his back.  When he was face down his head would have been about six feet from where any liquid on the floor would have been if it had been relevant to a loss of traction by the right crutch.  The plaintiff did not actually say that the water he saw was right beside his face, but I am nevertheless wary about this evidence.^[5]

10. [10]
    There was, however, evidence from a prison officer that he saw on the floor a small puddle of liquid, possibly water, about four inches in diameter, though he gave a position for it as being more under a seat near where the plaintiff had been sitting.^[6]Another prison officer said that there was a small quantity of water, apparently condensation from a cold drink, which was under his seat,^[7]but she later had it under the seat to the right of where the plaintiff had been sitting, in a position where it could not have been relevant to the fall:  p 79.

11. [11]
    This all happened a long time ago, and different accounts have been given at different times; generally the earlier the version the briefer and less relevant it was. Ms Cook, one of the defendant’s witnesses and the first officer on the scene, filled in an incident report the same day which said that she had been told by the plaintiff that he had slipped on some water on the floor with his crutches and landed heavily on his right leg, but said nothing about the presence or otherwise of water on the floor based on her own observations.^[8]The report said that she found the plaintiff sitting on the first bench in the common area, and the surveillance video shows that that was the case, but in her evidence she said her recollection was that when she came in he was still on the floor:  p 61, p 73, p 78.  That shows the difficulty in accurate recall of the details of an incident that occurred almost nine years ago.^[9]

12. [12]
    She gave a statement on 2 March 2005 (Exhibit 8), which added the information that she did not see any water present on the floor near where he alleged that he fell.  She said in this statement she was informed of the incident by another prisoner, whereas in the report she made the same day she said she was informed by the movement control officer.  The camera was monitored by movement control (p 55, p 61) and that officer would have been in a position to see the fall as a result of the operation of the camera which produced the video which came into evidence, although the report said he was told by a call from another inmate.  In the 2005 statement she said that when she entered the unit the plaintiff was still on the floor, she called for assistance from another couple of officers and they helped the plaintiff to a chair; all that is falsified by the surveillance video.  She said the only water in the area was underneath the bench where the plaintiff usually sat, apparently condensation from a bottle of frozen water on the bench, and was at least two metres from where the plaintiff fell.^[10]

13. [13]
    The other prison officer who gave evidence was the supervisor that day. He identified himself in the video coming in after the fall: p 57.  In the statement which he made on 28 February 2005 (Exhibit 7) he said that he examined the area where it was believed that the plaintiff had fallen over and he recalled a small amount of water on the floor near to where the plaintiff had fallen.  He assumed at the time the water had come from the plaintiff’s water bottle:  p 60.  The floor had not recently been mopped.  He said in the statement that he had been told at the time the plaintiff complained of slipping as a result of water on the floor, and had therefore examined the floor closely but could not see any water other than a small amount from the water bottle.  He also said that he did not recall seeing anything in the unit other than the water which might have caused the plaintiff to fall as he did.

14. [14]
    In his evidence to me he had the water^[11]that he saw under a seat, about 1½ to 2 metres from where the plaintiff had fallen (pp 53-54), whereas in the statement he spoke of it at one point as being near to where the plaintiff had fallen (para 6)^[12]and elsewhere as being on the floor near to where the plaintiff was sitting (para 7).  He also said at one point that the plaintiff had advised him that he fell as he got up to use the telephone:  para 7.  That could not have been right, because the telephone is visible on the surveillance video, and there was another inmate using the telephone at the time of the fall:  Exhibit 2.  It is also apparent that the fall did not occur while the plaintiff was getting up from the bench.

15. [15]
    The plaintiff signed a Form 1 under the Personal Injuries Proceedings Act 2002 on 31 May 2004:  Exhibit 5.  Paragraph 9 of the statement said that while using the crutches the plaintiff slipped on the wet floor and fell heavily causing him to suffer injury to his right hip.  The plaintiff was subsequently asked to provide a statutory declaration, which he did dated 17 September 2004:  Exhibit 6.  In that he said he was watching TV on a metal bench seat, he stood, placing his crutches under each arm and then proceeded to walk towards the kitchen area but fell very hard on his right hip when he attempted to walk.^[13]The plaintiff may well have been in the process of moving off towards the kitchen at the time, but the fall did not occur immediately after he had stood up or immediately after he had been watching television, though he may have been watching television a little earlier:  p 31.  The television appears to have been turned on only in the late morning.

16. [16]
    The first issue is whether the plaintiff fell because his crutch slipped out from under him, or whether he simply overbalanced and fell to his right. It would I think be possible for someone who was not used to using crutches and who tried to move off to his right to lose his balance in this way and fall over, though the plaintiff had earlier appeared to be quite adept at using crutches satisfactorily. On the other hand, I would expect that someone who was moving off on crutches to his right would begin by putting the right crutch out and then transferring his weight to it, which would to some extent involve a force at the point of contact with the floor back towards the centre of mass of the plaintiff, as well as the force pushing downwards on the floor. If there were a loss of traction while that force was being applied, the tip of the crutch would tend to go to the left, which seems to be essentially what is shown on the video. That would cause a loss of support under the right arm, causing the upper body to drop and move to the right, which is what is seen on the video. As well, I expect an overbalancing process would be slower than a sudden loss of support from the crutch. Overall, my impression is that what I can see happening on the video provides some support for the plaintiff’s evidence that he fell because the tip of his crutch slipped from under him, and I so find.

17. [17]
    The next question is whether he had slipped because of some water or other liquid on the floor. As to that, modern crutches are fitted with non-slip rubber ferrules, and one can see in the video something which looks rather like such ferrules, in white, on the tips of these crutches. They are obviously designed to be slip resistant, and it is difficult to believe that such a rubber ferrule would readily slip on a vinyl floor, even one which was polished once a week, unless there was some contaminant on the surface to act as lubrication.^[14]There is also the consideration that the plaintiff has said from a very early stage that he slipped on water on the floor, and after the fall the plaintiff would have been in considerable pain because of the fracture of the neck of the femur, under which condition he would have been unlikely to have been concerned about inventing a false story.^[15]There is nothing in the incident report made the same day by Ms Cook to falsify it, and the statements that she and Mr Wright made some years later are in other respects inaccurate, as were aspects of their oral evidence.^[16]They do at least confirm the presence of some water on the floor somewhere.^[17]On the whole I am satisfied on the balance of probabilities that the slip and fall occurred because of the presence of a small quantity of water on the floor where the right crutch was at the moment it slipped.^[18]

18. [18]
    The next question is whether the presence of the water and hence the fall were due to the negligence of the defendant. I do not accept that the defendant, through its relevant officers, had any actual knowledge of the presence of the water on the floor before the fall. Ms Cook asserted during cross-examination that she had spoken to the plaintiff before the fall about condensation from his water bottle on the floor under his chair:  p 73.  This was not mentioned in the incident report or Exhibit 8, or in evidence-in-chief.  In these circumstances, I do not regard this evidence as reliable, bearing in mind the other inaccuracies in her evidence.

19. [19]
    The plaintiff’s case was advanced on the basis that the system for inspection of the floors was inadequate as it was actually operating at the relevant time, and that, had there been a proper system of inspection in operation, it was probable that the water would have been cleaned up prior to this time, and in that way the fall would have been averted. The plaintiff’s argument takes as its starting point the statement by the defendant of the system of inspection and cleaning that was said to be in place for this unit at the relevant time.^[19]It was submitted that this was an implied admission that the system outlined was a reasonable one.  I think there is some force in that proposition; the position may be analogous to the evidentiary effect of a new system put in place after a plaintiff’s accident.

20. [20]
    In New South Wales v Bujdoso (2005) 80 ALJR 236 the High Court confirmed that a prison authority was under a duty to take reasonable care to avoid injury to the inmates, and at [46] apparently approved a summary of the common law position according to Halsbury as follows:

“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners.  Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff, or at the hands of another prisoner in consequence of the negligent supervision by the prison authorities, with greater care and supervision, to the extent that that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.”

21. [21]
    In that particular case the prisoner had been injured as a result of being deliberately assaulted by other inmates, and the analysis of the High Court focused on that situation. The only other present relevance of that decision is that it demonstrates that the content of the duty of care in relation to a particular potential plaintiff depends on the factors which are relevant to that individual. In the present case therefore it is relevant that the plaintiff had particular problems of mobility associated with his use of crutches. Although it is possible for anyone to slip on a wet floor, I suspect that a person who is mobilised on crutches will be of greater risk of falling in such a situation, and the consequences of a fall were potentially more serious to the plaintiff than to an average prisoner. There was some evidence that the plaintiff may have suffered the fracture because of some weakening of the bone as a by-product of the continuing problems from the injury to the right ankle.^[20]Even apart from that, the risk of an injury from a heavy fall for a man in his condition was obviously foreseeable.

22. [22]
    It is also relevant to consider whether the risk was not insignificant and whether in the circumstances a reasonable person in the position of the defendant would have taken the relevant precautions: Civil Liability Act 2003 s 9.  A risk will be “not insignificant” unless the risk is insignificant.^[21]In circumstances where the common area was used by the inmates to make and eat meals, and to obtain and consume drinks, the risk of there being some liquid spilled on the floor was in my opinion not insignificant.  Given the nature of the floor, it is I think likely that the presence of liquid on the floor would render it more slippery; there was certainly no evidence that the floor had a surface which would be slip resistant even if wet, and the plaintiff’s accident renders that unlikely.

23. [23]
    I am not aware of any cases involving slips and falls in prison, but there are certainly plenty of cases involving slips and falls in other circumstances. Common examples are shopping centres or supermarkets, and in that context the cases ordinarily proceed on the basis that the duty to take reasonable care requires that some system be put in place for periodic inspection of the floor to guard against the risk of spillage and contamination of the floor in this way. I do not think, however, that the analogy between places of that nature and the common area here is entirely apt, at least if taken at face value.

24. [24]
    People who spill things in shops or shopping centres are I think quite unlikely to try to clean them up themselves, whereas this common area was, for practical purposes, the place where these prisoners lived. Although some of them may have been untidy or indifferent about the effect of spills, I suspect that many of them would not have been. In addition, one of their number was appointed specifically to keep the unit clean (p 17), and this would have been known to the other inmates so that it would have been open to anyone who noticed a spill and did not clean it up himself to draw it to the attention of the unit cleaner.  The officers would also do this.  Presumably, if that were done, the spill would be cleaned up.^[22]In addition, inmates in the unit did not have the same scope for being distracted by their surroundings as shoppers at a shop or shopping centre, since the surroundings for the inmates would have been quite familiar.  The inmates were therefore more likely to be looking where they were walking and hence less at risk from spills.

25. [25]
    There was some issue during the trial about whether the prison officers did carry out regular patrols through the unit. The unit log recorded patrols at 8.10, 9.10, 10.06, 11 am, 11.32, 12.35 pm and 13.02 pm before the fall,^[23]but the video does not show an officer in the unit at about 11.32, and shows Ms Cook there for only 25 seconds at about 13.02 pm,^[24]and Ms Cook agreed that it was most unlikely that she did a patrol in that time:  p 72.  It follows that the last patrol before the plaintiff’s fall was at 12.36 pm,^[25]less than one hour before the plaintiff’s fall.  There was also an issue about whether in the course of those patrols they were inspecting the floor for spillages.  Although Ms Cook claimed she did do so,^[26]it does not appear that she had received specific instructions to do so, either in relation to the plaintiff or generally.^[27]Further, so far as one can see from the surveillance video, she was not while in the unit specifically examining the floor, that is to say looking closely at the floor.  No doubt she was looking generally at what was happening in the unit, and would have been trying to make herself aware of what was going on within the unit, because that was the purpose of the patrols, and I expect for the purpose of guarding against any possible attack against her.  In carrying out a patrol, therefore, she was not in the same position as, for example, a cleaner at a shopping centre, whose task is specifically to concentrate on the floor.

26. [26]
    I suspect this is why counsel for the plaintiff submitted that there was in fact no system of inspection of the floor in place in the unit, because there was no evidence, or at least no reliable evidence, that the prison officers had been told specifically to inspect the floors during their hourly patrols, or indeed that they did so. I think that that is correct; the position was simply that they were supposed to do hourly patrols, and one of the matters which could well be attended to during those patrols would be to tell the unit cleaner to clean up any mess if it were noticed, as one would expect any significant mess would be. The cleaner received some payment in that position,^[28]and I expect if the unit cleaner were not doing a good enough job he could be replaced.

27. [27]
    There was no evidence to support the proposition that in this context reasonable care would require hourly inspections specifically of the floor in order to detect slipping hazards. Given the nature of the establishment and the fact that there was a system in place in the form of a unit cleaner who could be expected to be there all the time the prisoners were in the common area, on the whole I am not persuaded that as a general proposition the defendant’s duty of care required it to make an inspection specifically of the floor in the unit at hourly intervals in order to guard against the risk of contamination which would produce a risk of slipping and falling.

28. [28]
    The situation is complicated in this case, however, by the fact that the plaintiff, unlike the average prisoner, had mobility difficulties. He had had surgery and returned from a lengthy stay in hospital only 12 days earlier. He was obviously using crutches, and it is apparent from the way he was using them, as shown in the video, that he really needed them; he was not putting his right foot to the floor.

29. [29]
    Although there was no specific evidence of this, I consider it obvious that the risk of injury from contamination of the floor would be greater for a person on crutches than for a person with the use of both feet. A foot has a relatively large area of contact with the surface compared with the area in contact at the tip of a crutch, and I suspect that there are more likely to be significant lateral forces acting on the tip of a crutch than on a foot. I accept that surfaces contaminated with liquids, even water, can sometimes pose hazards even to people who are not using crutches, but it seems to me that the hazard posed to a person in that position is going to be somewhat greater. A person who is depending on crutches and whose crutch slips from under him is necessarily going to be in trouble, and the existence of the mobility difficulty in the first place is likely to mean that a slip is more likely to result in a fall, and therefore an injury. Accordingly, in my opinion the content of duty of care owed to an individual with the mobility restrictions that the plaintiff had was higher than to the typical prisoner with no particular mobility restrictions.^[29]

30. [30]
    That is illustrated by this case. Accepting as I do that the plaintiff fell because the tip of his crutch slipped on some water on the floor, the water must have been quite inconspicuous, and therefore quite a small amount of water. This follows from the fact that the plaintiff himself did not see it, even though it is clear from the videotape that he was ordinarily looking where he was going while he was moving around the unit, and that he looked down at his feet immediately before he fell, as is apparent from the first of the stills from the video referred to earlier.^[30]In addition, he had obviously not noticed whatever was there when he approached the bench from the left shortly before he fell.  Nothing happened thereafter which could have led to water being deposited there, so far as I can see from the video, so the water must have been there at that time.  Accordingly, it must have been inconspicuous, otherwise the plaintiff would have seen it himself.  It would not have been noticed by the general inspection carried out by Ms Cook in the way she described.^[31]

31. [31]
    In these circumstances, the content of the duty of care owed to the plaintiff was greater because the risk to him was greater. It is not apparent that there was any recognition of this on the part of the defendant,^[32]or any allowance for this in the system of inspection.  It is not necessary to consider whether as a general proposition there ought in these circumstances to have been a careful inspection specifically of the floor over the whole common area, but in circumstances where spillages were certainly foreseeable, there was at least an obligation to have some periodic inspection specifically of the floor in those areas where the plaintiff was or could be expected to be moving around.  The plaintiff had a particular seat where he ordinarily sat (p 42), and he seems to have spent most of this day sitting on it, so that the areas concerned would have been fairly limited in extent.

32. [32]
    It was not suggested that this could not have been done with the resources already available, or that the defendant had any other obligations which would have conflicted with the ability to carry out such inspections. I accept that the probability that that harm would occur if the floor were not checked in this way was relatively low, even when dealing with someone using crutches, but the likely seriousness of the harm if someone on crutches did slip and fall was I think significant, and the burden of taking precautions to avoid the risk of harm was low. This was not a situation where the harm was caused by any particular activity, but rather where there was a failure to take reasonable steps to guard against the risk of harm from hazards created inadvertently by others.

33. [33]
    In all the circumstances, I consider that a reasonable person in the position of the defendant would have taken the precaution of putting in place periodic specific inspections of the floor in at least that part of the unit where the plaintiff would commonly be moving about.^[33]That would obviously include the area immediately in front of the bench where he usually sat.  This was not done, and it follows that there was a breach by the defendant of its duty to the plaintiff.

Causation

34. [34]
    This has to be determined in accordance with ss 11 and 12 of the Civil Liability Act.  The operation of a provision in the equivalent New South Wales Act, which is in very similar terms, the Civil Liability Act 2002 (NSW) s 5D, has been considered by the High Court in Adeels Palace Pty Ltd v Moubarak (2009) 84 ALJR 19, and, very recently, in Strong v Woolworths Limited [2012] HCA 5.^[34]In the former case it was emphasised that satisfaction of the first limb of the test in subsection (1) required, in the context of a case like this, proof that but for the negligent act or omission the harm would not have occurred:  [45].  It was not sufficient to prove that the harm might not have occurred, that is that the risk of harm would have been reduced, or that if the reasonable precautions had been taken it was likely that the factual situation would have been different in some way:  [50].  Accordingly, it is necessary in this case for the plaintiff to show that it is more probable than not that, but for the absence of a reasonable system of inspection required by the duty owed to the plaintiff, the fall and hence his injury would not have taken place.  This is not shown simply by identifying the fall as the very kind of thing which the duty obliged the defendant to take reasonable steps to prevent:  [51].

35. [35]
    What concerns me here is that it follows from the plaintiff’s evidence, and from the fact that there was no obvious explanation for the presence of water on the floor in that area in the period leading up to the fall, that the water on the floor was quite inconspicuous. A small patch of water on the floor may be a difficult thing to see, even if one is conducting a specific inspection of the floor. Most of the cases deal with the situation where the contaminant on the floor would have been obvious enough if there had been some form of inspection, at least one which did involve specifically checking the floor to see whether there was anything there. In principle, however, there could be a form of contamination which was so inconspicuous that reasonable inspection would fail to detect it, and in those circumstances the absence of that system of inspection would not have caused the injury for the purposes of the first limb of the test in s 11.

36. [36]
    Overall, however, I consider that the evidence suggests that even a small quantity of water on the floor could have been seen by someone who was specifically checking the floor for contaminants. The plaintiff said that he saw the water on the floor after the accident, and both Ms Cook and the supervisor said that they saw some water on the floor, the supervisor saying that he spotted a patch about the size of a 50 cent piece, even though, in the video that shows him in the area at one stage, there is little indication of his having made any searching examination of the floor.  One or both of these witnesses may have seen the water which was relevant to the plaintiff’s fall, as the supervisor’s initial statement suggested, but if that is not the case, the fact that they saw some small quantity of water does indicate that a proper inspection would probably have detected the relevant small quantity of water; it may be consistent with the plaintiff’s evidence that the water was mopped up by someone else before the officers entered the unit after the fall:  p 19.

37. [37]
    The other aspect of factual causation is the issue which was discussed by the court in Strong, what was said to be the familiar difficulty in slipping cases of establishing a causal connection when it is not known when the slippery substance was deposited.  Reasonable care does not require constant surveillance of the relevant area, there is always the possibility that the substance could have been deposited during the period between the last occasion of an inspection prior to the fall and the time when the plaintiff happened upon it.  The decision in Strong demonstrates that in an appropriate case the issue can be determined on the balance of probabilities by reference to the relative lengths of time involved.

38. [38]
    Not much can be said on the evidence as to when the water came to be deposited on the floor. It is unlikely that this was earlier than when the cells were unlocked that morning, because water there from the previous day would have had time to evaporate. I was not referred by either side to any specific event revealed on the surveillance video as a plausible explanation for the presence of such water on the floor.^[35]I have not looked at all of the tapes for that morning up until the point of the plaintiff’s fall, but in the course of the trial and subsequently I have looked at the tape which shows the period particularly leading up to the fall, and there is nothing visible in that period which strikes me as an obvious or even possible explanation for the presence of a small quantity of water on the floor.

39. [39]
    Applying the Strong approach to the present case, the plaintiff fell at about 1.30 pm, so the area had been occupied for about six hours.  Assuming that reasonable inspection would have detected the presence of the water, so long as more than one such inspection would have taken place had there been such a system in place between the time when the prisoners were let out of their cells and 1.30 pm, on the approach in Strong it is more probable than not that the inspection would have detected the water and hence prevented the fall and the plaintiff’s injury.  Hence, so long as reasonable care required a system of inspection of the kind referred to earlier at least every two hours, factual causation has been satisfied.  I consider that reasonable care would have required such an inspection at least every two hours; the obvious way to undertake it would be as part of the regular patrols, which were supposed to take place every hour, and that should have produced an inspection at least every two hours even allowing for some flexibility in the timing of the patrols.  I therefore accept that factual causation has been made out.^[36]

40. [40]
    The second limb depends on whether it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused. This is concerned with policy considerations that inform the judgment of whether legal responsibility should attach to the defendant’s conduct: Strong at [19].

41. [41]
    In the present case there was no particular issue about this raised by the defendant, and it was conceded that there was a duty of care owed to the plaintiff. Apart from specific factual issues, the main matters raised for the defendant were as to the standard of care, and as to factual causation. I suspect that this limitation is principally relevant in circumstances where there are issues as to remoteness, or other grounds such as public policy upon which causation should be excluded even though factual causation can be established. The approach in Strong suggests that there is an onus on the defendant at least to raise the issue, it has not been raised by the defendant in this matter,^[37]and I consider that there is no reason why the scope of liability of the defendant should not extend to the harm suffered by the plaintiff.

Contributory negligence

42. [42]
    The remaining issue is in relation to contributory negligence. The matters relied on by the defendant as establishing contributory negligence were that the plaintiff was mobilising backwards on his crutches when he knew or ought to have known that it was not safe to do so, failing to keep any or any proper look out for hazards on the floor, and failing to notice anything on the floor where he had traversed the area on other occasions on that day and shortly prior to falling.

43. [43]
    It appears that the plaintiff had moved back a little just before the fall, but that the actual slip occurred at a time when he was beginning to move to his right, perhaps in order to turn around. He had been standing immediately in front of the bench where he usually sat. There is nothing obvious to me from the video that the plaintiff was in this process doing anything which would be particularly unsafe for a person on crutches, nor was there any expert evidence to that effect led, and I am not persuaded that this allegation was made out factually.

44. [44]
    As for his failure to keep any proper look out, as I have said the video shows that immediately before the fall the plaintiff was looking down at his feet. Presumably he did not notice the water on which his crutch slipped; from that position it would I think have been a little behind him and to his right, and that may have been a position it was difficult to see even if one were looking down. Evidently he had not noticed it earlier, which suggests that it was not particularly conspicuous. It does not appear from the video that the plaintiff was moving around with his crutches without making some effort to watch where he was putting them, and ultimately I am not persuaded that the plaintiff failed to keep a reasonable look out for hazards on the floor, either at the immediate point when he was moving just before the fall, or earlier. The plaintiff had the difficulty that when mobilising on crutches he was not in a position easily to bend down at all to look more closely at anything he observed on the floor. Ultimately I am not persuaded that contributory negligence is made out on any of the bases relied upon. The plaintiff is therefore entitled to recover damages in respect of his injury caused by the fall.

Quantum

45. [45]
    The plaintiff was born on 12 August 1957, so he was 45 at the time of his injury and he is now 54.  He came to Australia when he was nearly 12, and after school qualified as a painter and decorator, working in that area and running a business over a period of about six years, employing up to 15 people:  p 14.  This involved mainly commercial painting.  In 1987 he moved to the United States where he did similar work, and then became involved in renovating commercial premises.  It was while doing this that he suffered his injury to his right ankle in September 2000:  p 15.  He did not work again, either before or after he was arrested.

46. [46]
    The plaintiff said that after the fall he was in extreme pain: p 25.  A few minutes elapsed before his plight came to the attention of the officers, but nursing assistance was provided reasonably quickly, and the plaintiff said that he was taken to the surgery at first and given an injection of morphine:  p 25.  He was subsequently taken to hospital^[38]and underwent surgery.  Once he had been given the pain relief the pain would have been reduced, but I accept that he was in significant pain thereafter for some considerable time.  He said that he was still in pain from the hip injury even at the time of the trial:  p 25.  For a long time after the injury he had used a walking frame, but in 2010 he changed to a four-pronged stick, which he continued to use.  He took medication to control the pain up until 2004, but he has not been taking it regularly since.

47. [47]
    The plaintiff was seen by Dr Pentis on 20 September 2005 for the purposes of a report.^[39]There was a further report provided on 22 July 2011.^[40]Dr Pentis assessed the plaintiff as suffering a 10%-15% whole person impairment referable to the injury in the hip, and a 5% impairment in relation to his lower back, which was secondary to the problems in the hip and the associated pain in the leg.  He found wasting of the thigh and a decreased range of movement of the hip in all directions.  There was difficulty with walking and balance, and he could not squat.  He also expressed the view that the plaintiff was at risk of requiring a hip replacement, and if that occurred the impairment would rise to between 15%-30%.  It would be normal for someone of his age to get worse with time, because of damage to the chondral surfaces:  p 48.  His current assessment took this into account.

48. [48]
    The plaintiff also complained of lower back pain: Document 3.  Dr Pentis attributed a further 5% whole person impairment to this.  This, however, was not caused only by the injury in the hip; either of the injuries would cause him to walk awkwardly, which puts greater strain on the lower spine:  p 46.  It was hard to say which was the more significant in terms of its effect on the lower back; the ankle problem was worse anatomically and medically but it was hard to say how much was due to one, how much to the other.

49. [49]
    The plaintiff was seen by Dr Tuffley, an orthopaedic surgeon, who wrote a report for the defendant dated 27 June 2007.^[41]He assessed the plaintiff as having a lower degree of impairment, only 1%, largely because he considered that the fracture had healed in a good position, and there was only limited range of motion impairment:  p 5.^[42]He was sceptical of the plaintiff’s claim of continuing significant pain, and did not think that there was any indication of arthritis in x‑rays, despite the passage of time.  It is not clear, however, that he had seen any particularly recent x‑rays, and he seemed to have been relying on there being no joint space narrowing in the x‑rays which had been taken at the hospital after the operation.^[43]He did not see any symptoms of arthritis at the time of his examination:  p 7.  In particular, there was no loss of rotation, which with arthritis is normally lost very early.

50. [50]
    The ankle injury was also the subject of a report of Dr Saxby,^[44]who was not cross-examined, although a diary note of a conversation that the defendant’s solicitor had with him was put in evidence:  Exhibit 1 Document 8.  Dr Saxby was reporting on the injury to the ankle.  Ankle motion was very restricted, and there was calf wasting.  He recommended further treatment, probably an ankle arthrodesis.  The state of his ankle prevented any but sedentary work.  He considered that the plaintiff was unable to work as a painter because of the problems with the ankle,^[45]but his ability to work would be improved by a successful arthrodesis.

51. [51]
    Dr Tuffley also thought that this was a significant fracture of the ankle involving the lower end of the tibia:  p 4.  As a consequence of this, the plaintiff developed a stiff subtalar joint:  p 8.  A fusion of the ankle, or both joints, may well help him by reducing pain in the joints, although they still leave some degree of impairment.  An ankle fusion is a relatively successful fusion usually, and there are investigations which can be done beforehand to determine whether it is indicated in terms of pain relief, and which joints should be fused:  p 9.  Dr Tuffley said that people with an ankle fusion do reasonably well, and he conceded that if the plaintiff undertook the ankle fusion then, assuming no injury to the hip, he may well have been able to get back to his previous work if he was sufficiently motivated and there were no further complications with the ankle injury or the fusion:  p 4.

52. [52]
    Dr Pentis thought the plaintiff’s condition would get worse, and that in time he would probably require a hip replacement:  p 48.  Dr Tuffley on the other hand thought that there was no indication that the plaintiff was developing arthritis, and unless he developed arthritis, which would ordinarily be apparent by now, he would probably not get worse or require a hip replacement:  p 7.  I do not think it is a question of accepting one view rather than the other; Dr Tuffley seems to be assuming that because there are no present indications of the condition deteriorating to require a hip replacement it will not happen, whereas Dr Pentis is taking into account the full range of possibilities, and long term experience with other patients.

53. [53]
    For my purposes, I must assess damages on the basis that the plaintiff may or may not require a hip replacement in the future, but should take into account that as at 2005 there were no clear indications of the development of the condition which suggested that one should be thinking in terms of hip replacement in the more immediate future. The plaintiff may get worse and, if he is in significant pain, may be motivated to have a hip replacement with a view to pain relief at some time if one is indicated, and some allowance should be made for that when assessing his damages.^[46]My impression is that Dr Pentis was having a greater regard to the sort of thing that commonly happens to people over a longer period of time, which is the approach which is more appropriate from my point of view.

54. [54]
    Both counsel submitted that the assessment should be made on the basis that the injury was within Item 127 of Schedule 4 to the Civil Liability Regulation, which provides a range of ISV of 11-25.  Counsel for the defendant emphasised that the whole person impairment suggested that the ISV should be at or near the bottom of the range, whereas counsel for the plaintiff sought an ISV a little over the halfway point.  The range runs from a significant injury with no major permanent disability to one requiring a hip replacement that is only partially successful so that there is the prospect of revision surgery and, presumably, increased disability unless and until that occurs.  The plaintiff obviously falls between those extremes, and in view of the prospect of some back problems in part as a consequence of the injury, the risk of the hip replacement and the extent of the pain (and I accept that the plaintiff does have some continuing pain from the fracture of the hip), I consider that an ISV of 20 is appropriate.  That is the equivalent of $26,000.

55. [55]
    The only special damages claimed was the refund to the Princess Alexandra Hospital of $2,118, which does not appear to be in issue.  The plaintiff sought the costs of anticipated treatment in the form of an operation to remove screws from the hip, and for the possibility that he may require a hip replacement, which would cost about $15,000.  The cost of removing the screws would be $2,000-$3,000, but it was not entirely clear that the plaintiff will necessarily get this done.  Overall, I will allow $7,500 in respect of a possible hip replacement, and $2,000 for a probable operation to remove screws, a total of $9,500.

56. [56]
    With regard to economic loss, the plaintiff at the time was not working anyway because of his ankle injury.^[47]The plaintiff has remained in custody since the injury, so there was no opportunity in any event to earn money on the open market.  There was, however, evidence that a prisoner could earn some amounts doing various kinds of work within the prison.  These were quite modest, but in principle give rise to a compensable loss.  The real issues is whether, as a result of the plaintiff’s ankle injury, he would have been precluded from doing work within the prison anyway, even if he had not suffered the further injury to his hip.

57. [57]
    The plaintiff had been precluded from doing the work in the period up to the fall, even before he developed the complications which led to his hospitalisation and further surgery: p 26.  I expect that there is a relatively limited supply of work available within the prison, compared with a number of prisoners interested in working, though there was no particular evidence on that point.  The plaintiff’s case can be at best that there was a possibility that, but for the injury to the hip, at some time prior to now the plaintiff’s ankle symptoms would have eased to the point where he would have been able to undertake some work within the prison, and he has suffered some, modest, economic loss as a result of the loss of that opportunity.  It is appropriate to take into account the possibilities here.^[48]

58. [58]
    The evidence indicates that if the plaintiff had been able to work in the prison, he would have been earning about $750 more per annum.^[49]I think it can be said with confidence that he would not have been working within the prison for some time after the surgery and hospitalisation in late 2002 in any case.  There were significant continuing problems with the ankle, and I think it probable that they would have precluded him from working in the prison in any event.  Nevertheless, some allowance should be made for the possibility that if this injury had not intervened he may have obtained some work in that period.  In the circumstances, I think that if I allow 20% possibility over the last eight years that is probably realistic; the ankle is expected to get worse rather than better with the passage of time, until he has surgery on it.  That produces an award for past economic loss of $1,200.00.  Interest calculated at 2.755% is $264.48.

59. [59]
    Future economic loss is more difficult to assess. I think it likely that the plaintiff will have an ankle fusion (with or without the subtalar joint) if further investigations indicate that that has significant benefits in terms of pain reduction; he was probably more likely to have the surgery if there had been no other problems and that was the only thing which was preventing him from getting back to work. Dr Tuffley conceded that the plaintiff could have gone back to work as a painter if sufficiently motivated, if he had that fusion (p 4), and I suspect that that is probably the sort of work the plaintiff would attempt to do.^[50]

60. [60]
    As to future economic loss, the position is much the same for work in the prison until the plaintiff is released. It is not clear when that will occur; his full-time release date is not until early 2024,^[51]but he is eligible to apply for parole on 28 February 2013,^[52]and he expects, no doubt on the basis of his experience within the prison, that he will get it then:  p 28.  There was no evidence as to his prospects in relation to parole.^[53]He was not imprisoned for an offence in respect of which I can say from my own experience as a judge that getting parole is likely to be particularly difficult.  There are some offences in that category, but this is not one of them, though I cannot say that I know there will be no particular difficulties.  The defendant did not lead any evidence of any factors likely to impact adversely on an application for parole.  On the face of it, therefore, the position is that he is likely to be released soon after he becomes eligible for parole, though he may not be.  It is probably fair to say that he is quite unlikely to remain in custody until early 2024.  I will allow $500 for future economic loss in prison.

61. [61]
    The plaintiff’s case was that but for the injury to the hip he would have been able, after his release, to resume his trade as a painter, possibly after he had undertaken an ankle fusion. I think it is likely that there would have been some difficulties in the plaintiff’s obtaining employment in that trade anyway, even with an ankle fusion, in view of his ankle problems, but I think it is reasonable to say that it is possible that the plaintiff would have been able to get back to some painting, at least as an employee, in time if it had not been for his additional problems.

62. [62]
    It was submitted for the defendant that the plaintiff’s criminal history makes it unlikely that he would obtain any significant employment in the future anyway, even apart from his injuries. I do not accept that, except in the sense that it is unlikely that he would be considered for any position which involved any serious element of trust. That would exclude him from a managerial position, something which he could still do in principle, although he would lack the ability that he would have had prior to the injury to the ankle of being able to get involved in the work and help out, or show employees how something ought to be done: p 38.  He may be able to practice as a painting contractor, though I assume that such a person would require a certain amount of capital to get started and I suspect he would not have that,^[54]otherwise he would be required to obtain work as an employee.

63. [63]
    His ankle problem and to some extent his age would tell against him even if he had a successful fusion, so he would have had difficulties anyway in the labour market. The plaintiff’s case was put on the basis that he would probably have been able to get some work but for this further injury, but now he is effectively unable to work as a painter at all. He would be unable to undertake repetitive bending, squatting and lifting, and would also have difficulty running, climbing and negotiating uneven ground and slopes. That would certainly make it very difficult for him to engage in house or commercial painting, though he may be still able to engage in industrial painting, such as powder coating. I expect that would be less well paid. It is possible that, if the plaintiff has a hip replacement, that would reduce his hip pain and thus enable him to do further work. The problem here may be one of timing; if his hip does deteriorate in the future it is going to be increasingly difficult for him to get work, and by the time he actually has a replacement, even if it is successful, he may be too old and have been out of the work force for too long to get work.

64. [64]
    I think it is likely the plaintiff would have had significant problems anyway, but there is a possibility that he would have been able to do some work in the future but for the hip injury, and those prospects of future employment have been significantly adversely affected. Assuming he gets out of prison in about 12 months time, he will have a notional 10 years of working life ahead of him, but because of his age and the time out of the industry, and his ankle problems, the appropriate starting point is much less than 10 years’ work as an employed painter.

65. [65]
    There was no evidence about what the plaintiff would earn as an employed painter, but I can take judicial notice of the award rates published in the industrial gazette.^[55]These indicate that if the plaintiff had been working as a painter, he would have earned per week $605 gross or more, depending on experience, overtime, etc; I suspect that in the circumstances he probably would not have been earning much more than that if he were working.  Allowing for tax, this suggests a potential earning capacity if he were in employment as a painter of about $25,000 per annum.  But for the accident to his hip, his practical earning capacity in the future anyway would probably have been more of the order of $80,000, taking into account the various difficulties that he would face.  I do not think he has lost all of this, but I think that he has lost quite a bit of it, which suggests future economic loss of $50,000 over a 10-year period.  This also takes into account the possibility that even if the plaintiff is not able to work as a painter because of his problems, he may be able to obtain other less skilled but less demanding employment which was within his capacity.  That should be discounted for vicissitudes and to some extent for the possibility that the plaintiff will not be on parole throughout that period, though I do not think there needs to be much discount for the latter reason, as I have explained.  Overall, that produces an award essentially on a global basis of $40,000.

66. [66]
    Presumably the plaintiff would have obtained superannuation payments had he been working in the prison, and had he been working as an employed painter, so I will allow an extra 9% for past and future economic loss on this basis.

Summary

67. [67]
    Accordingly, the plaintiff’s damages will be assessed as follows:

68. [68]
    There will therefore be judgment that the defendant pay the plaintiff $83,335.48. Presumably a special order has to be made for the money to be paid to the Public Trustee until he is released from custody, but I will hear submissions about that and about costs when judgment is delivered.