Gilmour v State of Queensland
[2013] QDC 199
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- Gilmour v State of Queensland[2013] QDC 199
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Gilmour v State of Queensland[2013] QDC 199
Gilmour v State of Queensland[2013] QDC 199
DISTRICT COURT OF QUEENSLAND
CITATION: | Gilmour v State of Queensland [2013] QDC 199 |
PARTIES: | NEROLI KAY GILMOUR (Plaintiff) v STATE OF QUEENSLAND (defendant) |
FILE NO/S: | BD 2886/2012 |
DIVISION: | Civil |
PROCEEDING: | Claim |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 6 September 2013 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 19, 20, 21 August 2013 |
JUDGE: | Dorney QC, DCJ |
ORDER: |
|
CATCHWORDS: | Liability – employment relationship – teacher – defect in walkway (undetected before incident) – causation Quantum – measure of damages – personal injuries Workplace Health and Safety Act 1995, s 27A Bagiante v Bunnings Group Limited [2012] QDC 120 Bankstown Foundry P/L v Braistina (1986) 160 CLR 301 Caledonian Collieries Ltd v Speirs (1957) 97 CLR 202 Czatyrko v Edith Cowan University [2005] HCA 14 Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18 Judge v RH Grey & Son Pty Ltd & Ors [2012] QDC 33 Kocis v SE Dickins P/L [1998] 3 VR 408 Leighton Contractors P/L v Fox (2009) 240 CLR 1 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 Pascoe v Coolum Resort P/L [2005] QCA 354 Podrebersek v Australian Iron & Steel P/L (1985) 59 ALJR 492 Queensland Corrective Services Commission v Gallagher [1998] QCA 426 Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 Strong v Woolworths Ltd & Anor (2012) 246 CLR 182 Wyong Shire Council v Shirt (1980) 146 CLR 40 |
COUNSEL: | R Morton for the plaintiff B Charrington for the defendant |
SOLICITORS: | Morton & Morton Solicitors for the plaintiff Crown Law for the defendant |
Introduction
- [1]On 3 March 2010 the plaintiff (then aged 39) was a teacher at the Yarrilee State School in the Hervey Bayarea of Queensland. She fractured her right ankle when completing her traversal of a pedestrian crossing within the school grounds (in the circumstance of accompanying a large class of children from the school proper to an adjacent area where buses parked for the conveyance of those children to swimming lessons).
- [2]This proceeding considers whether the State of Queensland, as her employer (in the circumstance of the incident occurring on the school grounds), is liable concurrently, or solely, in negligence or breach of contract.
- [3]The fundamental issue in this case is: approximately when, on the probabilities, did the undisputed cause of the plaintiff’s fall (and consequent fracture) come to be in the state that it was at the time of the incident? On that hangs the outcome of this case (for the reasons later discussed).
Circumstances of the fall
- [4]Exhibit 2 provides an aerial view – or, rather, a Google Map in photographic form – of the crossing in question. As well, photographs (Exhibits 3A and 3B) taken some short time after the incident, from a side angle, close-up and (unfortunately) not providing a photographic representation of the view had by a pedestrian moving across that crossing from left to right in the photographs (as was the direction Mrs Gilmour took), undisputedly show how the “defect” was at the relevant time. Exhibit 5 shows the rectification work done to the particular area (which was completed, at the latest, by early June 2010).
- [5]While Exhibit 12, a statutory declaration of Mrs Gilmour made 22 December 2011 became evidence in this case - and although she was not cross-examined on the contents of it – and while it contains her description of the hole at the time, it must be remarked that: she had not seen the “defect” at any time before her fall (although as the statutory declaration declares, she would have “traversed the pathway prior to the subject event … once or twice per week”); she did not observe where she put her right foot immediately prior to her fall; and her distress later (understandable in terms of the pain she suffered) seems to have distracted any further attention by her on that hole. Additionally, she did not return to the school until August 2010. In those circumstances, any estimation by her of the dimensions of the “defect” must be subject to some careful scrutiny. Nevertheless, even taking into account the fact that some of the higher estimations are 100% greater than the corresponding lower dimension, on the lower part of the range of dimensions used, she declared a length of 18'', a width of 1'' and a depth of 1/2''. As noted, the photographs have no surrounding contrasting feature which gives an ability to discern, in any accurate way, the precise dimensions. Despite that, the dimensions just canvassed appear to be ones which can be accepted with reasonable satisfaction (although, obviously, the width is somewhat variable overall).
- [6]It is not in dispute: that the incident occurred sometime in the middle of the day; and that the day was fine and sunny.
- [7]Since neither party submitted anything other than each and every one of the witnesses attempted to recall honestly as best each could, it is unnecessary to canvass the issue of credibility. Despite that, given the way in which the incident occurred, and the context of the supervision of a large number of children either going to, or returning from, the bus waiting area, reliability is a little more difficult to determine.
- [8]Mrs Gilmour freely admitted that she had walked across that particular crossing “hundreds” of times and had “never noticed” any cracking in the concrete, although she added that she normally walked across it with students. In an attempt to recall the actual mechanics of her fall, she stated:
- in examination-in-chief, that she had put her right foot “onto the yellow strip”, then turned to her left to have a passing conversation with Mrs Dubroy (a fellow teacher), whereupon her left foot “went down onto the white part underneath the gutter down the bottom” and she then “turned” and felt that she “couldn’t move any further”, stating that her right foot was stuck;
- in cross-examination, that she put her right foot on the yellow painted area, turned to the left and “commenced turning back” towards the direction she was travelling in and when she went to move she “couldn’t move (her) right foot”, with her “sandshoe” being “trapped in the lip” – while noting that she could not really feel the broken surface below her right foot and acknowledging that she was not looking down at her feet because her focus was on ‘‘(her) kids … getting out the gate” ahead of her; and
- in answers to questions asked by me, that after putting her right foot on the yellow strip she “just kind of stepped backwards”, actually moving back to put her left foot “in the dip” between the roadway and the rise, momentarily stopping her forward movement and, as she went to move her left foot past her right, her right foot “just was caught” and that she fell “up” and “not backwards into the gutter.”
- [9]A little contrary to that, Mrs Dubroy (who was the other party engaged in the conversation with Mrs Gilmour immediately before the incident), while agreeing that she was talking with Mrs Gilmour as they passed each other on the pedestrian crossing, stated that her recollection was that she stopped and that she thought Mrs Gilmour had also stopped. Her next recollection is that, when she had finished her conversation, Mrs Gilmour “took a step … backwards, ready to turn to go out the gate” and as she took that step “her heel seemed to twist and she just simply crumpled to the ground and grabbed her ankle immediately”. When asked about in what part of the “defect” that she saw Mrs Gilmour’s heel “end up”, Mrs Dubroy stated that she thought it was “probably that middle part” (the “gappy part”). When specifically cross-examined about what her best recollection was of where Mrs Gilmour’s heel went, Mrs Dubroy agreed with the suggestion that it was “into” the broken concrete. In answer to a question by me, Mrs Dubroy stated that Mrs Gilmore was wearing “runners” - the statement consistent with an Accident Report (Exhibit 4 – p. 1) by her and apparently made on the day of the incident. The reason why I am a little concerned about the reliability of the reference to the “heel” is not only because there is no reference in this witness’s Accident Report to any “heel” but also because, at trial, the witness herself admitted considerable doubt about specific matters of recollection on that day, in the context that it all “happened so fast”.
- [10]Since, as earlier noted, it is undisputed that an incident occurred in which Mrs Gilmour suffered a significant fracture to her right ankle while wearing “sandshoes” (or “runners” or “joggers”), despite the lack of clear recollection of participants and observers what did occur, I find, on balance, that the plaintiff inadvertently placed some part of the footwear that she was wearing on her right foot (the most probable inference being that it was the right hand side of the footwear) into the demonstrated hole whereby she was unable to achieve any lateral forward movement, causing her to twist and fall. Thus, the “defect” was of a kind that a teacher, immediately after conducting an otherwise normal conversation with another passing teacher in the circumstances of very many children being supervised and moving both ways up to, on and through the crossing, could place her foot in a hole in a normal pathway on school grounds, such that the event caused her to fall and injure herself (significantly).
Immediate aftermath
- [11]The evidence in documentary form shows that a work request to fix this “defect” and (nearby, additional problems) was made on 9 April 2010 and that the relevant work order resulting from that request was “closed” on 4 June 2010.
- [12]Mrs Dubroy gave uncontested evidence that after Mrs Gilmour’s fall the whole area was barricaded off and, from her recollection, that “happened very quickly”, although she could not be certain whether it was “actually that afternoon or the next day”. The groundsman, Mr Edwards - who then had the job title or description of “Schools Officer, Grounds and Facilities” - was on holidays at the time and was, therefore, unable to give evidence as to this, apart from the fact that there was relevant material for barricading in the supplies kept on the school grounds. He was, also, unable to recall exactly when the repairs, which are shown in Exhibits 5 and 6 were effected. The relevant photograph of the area of the fall, after rectification, is Exhibit 5.
- [13]Ms Greiner, who was deputy principal at the time (although, at trial, she was the acting principal) and who had been at this school since it opened in 2000, while admitting that the area was barricaded, was “not sure exactly” when this occurred, although she conceded that the usual process would be that it would be done “very quickly” after the fall. Ms Greiner could also not remember when the work done (shown in Exhibits 5 and 6) was completed, though she did “believe” that the barricading remained in place until the work was completed, with it being of such a kind that no one could walk across the pedestrian crossing.
- [14]It is also clear from the evidence of Ms Greiner and Mr Schultz (who was the Regional Facilities Manager for Education Queensland for that relevant region at the time) that the allocation of money for the rectification of the relevant area was approved relatively quickly, despite negotiating the various approval channels that were necessary to achieve that end. The funds were obtained (amounting to $12,814.00, and covering a much larger area than the area of the “defect”) not from the usual “maintenance budget” but under “a different funding arrangement” (for such contingencies).
Pre-incident activity and “knowledge”
- [15]As earlier indicated, the timing of the presence of the “defect” in its form as at 3 March 2010 was much in dispute. Consequently, it is important to determine what facts there are from which inferences, if any, can be drawn to the appropriate standard of probability.
- [16]Because the plaintiff’s Statement of Claim had alleged, in paragraph 5, that the State of Queensland had known of the existence of the hole “for at least a period of one year prior to 3 March 2010” and had “approximately one year prior to 3 March 2010 painted yellow paint around the edges of the hole”, the State led significant evidence about inspections, particularly by QBuild.
- [17]It is common ground that the 3 Maintenance Assessment Reports of QBuild (Exhibits 21 to 23, inclusive) which were completed, respectively, on 13 February 2008, 8 October 2008 and 15 September 2009, contain no reference to either the pedestrian crossing in question, or any part immediately adjacent to it.
- [18]It was submitted by the State that such a conclusion excludes the “defect” being present at any time up to 15 September 2009 and, moreover, that an assessment on a yearly basis satisfies any standard of appropriate inspection for the detection of such defects as the one the subject of this case.
- [19]The submission on behalf of Mrs Gilmour, derived from cross-examination of both Mr Schultz (who was the person through whom those Maintenance Assessment Reports were tendered) and Mr Edwards, the groundsman, was that QBuild did not conduct appropriate inspections – not even inspecting paths until after the incident – and that any inspection by Mr Edwards was on an ad hoc system. There was no convincing evidence that Mr Edwards had conducted any such inspection in the first term of 2010 up until the date of the incident.
- [20]The criticism of the inspections done by the QBuild inspectors garners some support from qualifications contained at the beginning of each report under the title “Assessment Scope Limitations”. In particular, it was stated that, “although some obvious safety issues and statutory non-compliances may be identified during the assessment it is nota formal compliance inspection, audit or survey relating to health and safety, building codes & regulations, fire safety, or any other fitness-for-purpose issues” (emphasis added). It further stated that the findings of the report were based principally on the visual inspection of buildings and building-related assets “by tradespeople who are competent within their field of expertise”. Additionally, in the section entitled “Disclaimer”, it stated that any advice provided “should notbe construed as a substitute for professional legal, engineering or risk management advice” (emphasis added).
- [21]In cross-examination, Mr Edwards - although somewhat reluctantly - accepted that he “start(ed) to wonder about QBuild sometimes”, exemplifying that by reference to more recent inspections done by a couple of painters who “possibly” made only painting recommendations and by an inspector who he “sort of” thought might be a butcher, and that he was “still waiting for the candlestick maker as well”. While it can not be given much weight, it has a tendency to support the lack of any reference in any QBuild document to “paths” as indicative of the limited (for present purposes) nature of such inspections.
- [22]A more detailed examination of those Maintenance Assessment Reports shows that, even where certain “Paved Areas” were examined and even where they were shown to be “a tripping concern”, a not unusual response was to opt for marking the raised edges of the pavers “with yellow highly visual paint”, although it must be noted that in the report dated 15 September 2009, possibly because the problem was termed as “an injury concern”, the option advised was to barricade the corner around the loose pavers and to suggest that additional “condition based maintenance” was required.
- [23]Mr Edwards accepted that it was “only recently” that he had been given the task to “do all of those inspections that QBuild should have been doing in the first place”, adding, in re-examination, that “to be honest” he “would probably have to say ‘yes’” to the question that it was after this particular incident that he first had such a responsibility as this.
- [24]The more probable conclusion that can be drawn from the relevant evidence about inspections, taking the evidence as a whole, is: that QBuild did not include areas such as this relevant pedestrian crossing in such inspections, particularly given that it never represented that it was doing any formal compliance inspection, audit or survey relating to health and safety; and that Mr Edwards had no designated task to inspect such paths until after the incident. Thus, there is no direct evidence upon which this Court can necessarily conclude that the “defect” was not in existence, at the time of the last QBuild inspection completed on 15 September 2009 (as asserted by the State), on the conclusion (later addressed) that it had been there for some significant time.
- [25]It is, now, necessary to consider the casual inspections done by the school teachers and staff. First, it is clear from Mr Edwards’ evidence that I cannot find, on balance, that there was any inspection done by him from the beginning of school year in 2010 up to 3 March 2010.
- [26]Turning, then, to what passing visual observations were made concerning this area, it is not in dispute that there is no witness who was called (including Mrs Gilmour, Mrs Dubroy, Ms Greiner and Mr Edwards) who has any earlier recollection of seeing the “defect” in the state it was in on 3 March 2010. Nevertheless, it is significant that Ms Greiner, when speaking of the “defect” in evidence, was quick to endorse the view that something needed to be done to it immediately, given the state it was then observed to be in. This was even though she did not “notice” it before, in traversing the area “once a month”.
- [27]So far as the teachers themselves were concerned, the only evidence led at trial would support a conclusion that, given that their focus of attention would have been on the many children that they were supervising on the journey across this area, it is unlikely that they would have ascertained the condition, given that no one experienced any difficulty in so walking. It is also unsurprising, even if the condition prevailed for some considerable time, that no teacher would have experienced a problem with it. This is because a path which generally involved walking across the pedestrian crossing, then up the slope and over the top of the “defect” would not, except perhaps in a rare (but not far-fetched) instance, lead to any sensation which would have alerted any such walker to the presence of a problem. This leads on to the subject of the Maintenance Book kept in the teacher’s Common Room. Entries were made by teachers, and other staff, of complaints which Mr Edwards would attend to. The book, at least in a copied form, belatedly, became an exhibit in the case. It contained no entry referable to this particular crossing or any area immediately adjacent to it. But, again, it is unsurprising given the nature of the “defect” and the circumstances which would have caused teachers with many supervised children – there being no evidence as to whether other staff regularly ever crossed this particular crossing – not to have noticed, and therefore reported on, this aspect of the crossing.
- [28]On the plaintiff’s behalf, it was submitted that a magnified examination of, in particular, Exhibit 3B showed paint of a different colour to that which was used to cover this section generally. By reference to another photograph, Exhibit 10, which also photographed the area near the gate which was beyond the pedestrian crossing, Mr Edwards was able to identify a darker coloured yellow paint as paint that he had applied himself at a much earlier time. Mr Edwards had no recollection of applying the lighter coloured yellow paint. Although it does appear as if the darker coloured yellow paint had been originally applied to the general area of the “defect”, Mr Edwards, who I took to be a truthful, if reluctant, witness about this aspect, denied that it showed that the earlier, darker paint had been applied to the “defect” in the actual form it was in as shown in Exhibit 3B.
- [29]There was no expert evidence led as to how paint is likely to behave when applied, for instance, to a hairline crack (such - but perhaps not the same - as that shown at the bottom end of the yellow painted area on Exhibit 3B). Thus, it may well be that, to the extent to which the darker yellow paint can be observed, it is simply a product of such paint seeping in when the area in question was, at least relatively, intact. In conclusion on this issue, I cannot find that it is a more probable inference than any other competing inference that the darker yellow paint in the area in question was always in that state from the time, much earlier, that Mr Edwards applied that darker paint.
- [30]There is, additionally, the matter of the removal of the rubble from the “defect” area. As described by Mr Edwards, the whole section “(had) gone”, adding that it was correct that it had been swept or moved by a wheel or something else, even “picked out by the kids” or “picked out by the garbage truck”. From the photographs exhibited, it is clearly open to conclude that it was not fresh broken concrete. Mr Edwards also gave evidence that garbage trucks were accustomed to drive over that particular end of the area in question to collect the industrial bins (such as are shown in Exhibit 3A). Such bins could “sometimes” be cleared twice a week, although he would not admit, except as a possibility, that the bins that were picked up were “bang(ed)” down, particularly in that area.
- [31]Given the absence, as shown in Exhibits 3A and 3B, of any rubble in the nature of the usual broken concrete pieces that could have come from the area of the “defect”, it is open to infer that the probabilities are that the hole in the nature as shown in those photographs was there for some considerable time. For instance, one would expect that, if the rubble was moved by the wheels of garbage trucks, it would be progressive, or at least show some evidence of it having partly occurred if it were to have been an occurrence of recent times before the incident. While Mr Edwards doubted that it would have been swept out, at least by him (because he would not have left it like that), it would tend to suggest that the state of the “defect” was (as shown in those photographs) present for at least the whole of the 2010 year to that time, if not from sometime later in the year before. Necessarily, if it was cleaned out by an employee or contractor of the State, given its importance in the flow of children and adults to the adjacent area, not only should a report have been made but also, consistently with Ms Greiner’s evidence, remedial/preventative steps should have been taken; and the absence of any such activity - it being in the ability of the State to lead it – suggests the likelihood of a gradual decay of the hole in question over a considerable time.
Employer’s duty
- [32]As cogently stated by Fullager J in Hamilton v Nuroof (WA) Pty Ltd,[1]an employer’s duty can be stated as “a duty to ensure that all reasonable steps are taken to provide a safe system of working”: at 34.
- [33]The reference to “ensure” reflects the nature of the non-delegable duty of care owed by an employer to its employees. As held in Czatyrko v Edith Cowan University,[2]such a duty requires that, if there is a real risk of injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of a task that eliminates the risk, or by the provision of adequate safeguards. It was added that the employer must take into account the possibility of thoughtlessness or inadvertence, or carelessness, particularly in the case of repetitive work: at [12].
- [34]Because this occurred in what might otherwise seem to be an analogous set of circumstances to that concerning a local authority in its relationship with users of highways, it needs to be noted that Keane JA, with whom Jerrard JA and Cullinane J agreed, was clear in rejecting any such analogy in (Pascoe v Coolum Resort P/L[3]). He described the degree of care necessary for an employer to discharge its obligation – there considering the duty in circumstances where the employer had the ability to monitor the state of the walkways around its resort and to control the extent to which they were kept in proper repair for the safety of its employees and guests in the course of the conduct of its business – as being “of a higher order”: at [20]. He added that, in this regard, it is well established that in such a context the exercise of reasonable care includes “recognition of the possibility of inadvertence or even careless lack of attention by its employees”: also at [20], relying upon cited authority, including Czatyrko.
- [35]While the plaintiff has not suggested, or pleaded, that an action for breach of statutory duty is available, it was submitted, by particular reference to, amongst other sources, Leighton Contractors P/L v Fox,[4]that obligations under statutory or other enactments have relevance in determining the existence and scope of the duty owed: at 22 [49]. But it is salutary to observe that the High Court also remarked that it is necessary to exercise caution in translating the obligations imposed on employers under acts and regulations dealing with occupational health and safety into a duty of care to common law because (with reference to cited authority) “whatever their scope, all duties of care are to be discharged by the exercise of reasonable care. They do not impose a more stringent or onerous burden”: also at 22 [49]. In the present proceeding, the plaintiff specifically identified s 27A of the Workplace Health and Safety Act 1995. In particular, reference was made to the obligation to properly manage exposure to risks by, amongst other things, identifying hazards, assessing the risks that may result because of such hazards, deciding on appropriate control measures to prevent, or minimise the level of such risks, implement control measures, and monitor and review the effectiveness of such measures.
- [36]It is difficult to see, in the context of this case, what that particular obligation adds to the already identified existence and scope of the duty here. It must always be the case, as is exemplified by references to such cases as Pascoeand the Roman Catholic Bishop of Broome v Watson,[5]that an employer faced with employees who fall on the premises supplied by the employer must have been able to identify, and have implemented, a system of inspection of the thoroughfares used by their employees, particularly those that are used on a constant basis and exist in places where damage may be occasioned to them by significant external forces. Since, as Leighton Contractors instructs, no more stringent or onerous burden is imposed than the discharge of relevant duties of care by the exercise of reasonable care on the employer’s part, I have difficulty in determining the relevance of s 27A as extending either the existence or the scope of any relevant duty.
Breach of duty
- [37]At this stage of the analysis, the principles derived from Wyong Shire Council v Shirt[6]take hold: see Mason J at 47. Thus, the risk of injury being foreseeable contains the implicit assertion that the risk is not one that is far-fetched or fanciful, as it was not here. Foreseeability does not require the identification of the precise chain of events that leads to the relevant injury, it being enough if the employer, as here, ought to have foreseen in a general way the kind of event that did occur: see Caledonian Collieries Ltd v Speirs.[7]As outlined by Hayne J in Mulligan v Coffs Harbour City Council,[8]the enquiry into the causes of an accident is wholly retrospective, seeking to identify what happened and why; whereas the enquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk - and one of the possible answers to that enquiry must be “nothing”: at 461 [124]. In considering that part of the question which involves a consideration of the degree of probability, Hayne J went on to add that the probability of occurrence of a risk that is not apparent on casual observation of a locality, or of a set of circumstances, may be higher than the probability of occurrence of a risk that is readily apparent to even the casual observer; but that, even so, the focus of the enquiry must remain upon the putative tortfeasor, not upon the person who has been injured, and not upon others who may avoid injury. This is because in looking at the reasonable response to a foreseeable risk, it is necessary to recall that there will be times when others do not act carefully or prudently: at 470 [163].
- [38]The importance of a prospective, rather than retrospective, enquiry is intrinsically involved in identifying what a reasonable response would have required. It must be remembered that the enquiry, besides having regard to the degree of probability, looks also to the magnitude of the risk, the expense, the difficulty and the inconvenience of taking alleviating action and any other conflicting responsibilities.
Causation
- [39]The factor of causation arises here because, as identified recently in Strong v Woolworths Ltd & Anor[9]– though the High Court’s primary focus there was upon the statutory requirements for this factor – in negligence alleged to lie in a failure to employ a system for periodic inspection and identification, proof of the causal link between an omission of that type and the occurrence requires consideration of the probable course of events had the omission not occurred: see the majority, at 196 [32]. Although that was a case involving a system of periodic inspection and cleaning (requiring proof that it was likely that the offending “chip” would have been detected and removed beforehand) outside an employer/employee relationship, the relevant principle applicable here is, as there, that it was incumbent upon the plaintiff to prove that it was more probable than not that the defence’s negligence was a necessary condition of her fall. The court held that this onus could be discharged by consideration of the probabilities (in circumstances in which the evidence did not establish when the chip was deposited): at 196 [34]. By reference to Kocis v SE Dickins P/L,[10]the majority adopted the observation of Hayne JA (as he then was) to the effect that the plaintiff must prove his or her case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is another possibility open, because the determination of the question turns on a consideration of the probabilities: 196-197 [34].
Contributory negligence
- [40]A cogent expression of what constitutes contributory negligence is that given by the plurality in Bankstown Foundry P/L v Braistina.[11]As stated by Mason, Wilson and Dawson JJ, a worker will be guilty of contributory negligence if the worker ought reasonably to have foreseen that, if the worker did not act as a reasonable and prudent person, the worker would expose himself or herself to a risk of injury, though such conduct must be judged in the context of a finding that the employer had failed to use reasonable care and thereby exposed the worker to unnecessary risks: at 310. It is important in determining that guilt whether, in the circumstances and under the conditions in which the worker was required to work, his or her conduct amounted to “mere inadvertence, inattention or misjudgement” or “to negligence rendering (the worker) responsible in part for the damage”: also at 310. By reference to Podrebersek v Australian Iron & Steel P/L[12]the plurality adopted the statements that the determination involves comparison both of culpability (i.e. of the agreed departure from the standard of care of a reasonable person) and of the relative importance of the acts of the parties in causing the damage, holding that it is the whole conduct of each party in relation to circumstances of the accident which must be subjected to comparative examination: at 311.
Resolution on liability
- [41]Since the State has conceded the existence of the duty of care in this case is concurrent with an implied contractual term to the same effect, and since there is no suggested difference in damages, I will concentrate on negligence (i.e. on breach, causation and contributory negligence only).
- [42]Because it is not necessary to foresee the precise chain of events that led to an injury such as that suffered by Mrs Gilmour, I conclude that the particular incident in question that led to the injury was foreseeable, in the sense of not being far-fetched or fanciful. This is because, for the reasons I canvassed earlier, given the task to be undertaken by Mrs Gilmour in the shepherding of the children, under relatively constant supervision, from the school premises to the point of departure for their swimming lesson, inadvertence, or pre-occupation, by Mrs Gilmour in that task is an important fact. It is obvious that the hole being of the dimensions that I have found to exist, aided by Mrs Gilmour’s own “estimations” and the photographic evidence, leads, in my view, inevitably to that conclusion.
- [43]In other aspects of breach, in light of the fact that a teacher shepherding children such as Mrs Gilmour can not permanently be on the lookout for hazards on a step-by-step basis, the magnitude of the relevant risk was significant because a trip and fall on the concreted area in question would most likely lead to the sustaining of some personal injury. With respect to the probability of the occurrence, the evidence shows that the dimensions of the hole, together with its uneven features, were more likely to cause sudden tripping, falling and an injury than from an expected relatively even surface. Thus, steps needed to be taken to inspect, properly and adequately, and take preventative measures accordingly.
- [44]Although the State submits that the “small size of the broken area” simply “constitutes an everyday hazard faced by people in all areas of life” and it “did not require the urgent and excessive response of barricading the access pathway to the bus”, I find to the contrary. Knowledge of the existence of this “defect” would have demanded action, particularly if it were to be true that a considerable time would be taken before remedial action could be undertaken because of approval procedures (rather than a temporary solution by the use of concrete filler, say, undertaken by Mr Edwards). So, to leave the area in the particular condition if detected without any, for instance, barricading offends against the response that a reasonable person would have taken (stripped of any hindsight considerations). The presence of yellow paint I find to be simply the result of, inferentially, a decision to highlight the difference in height between the actual pedestrian crossing and the curb at the far end of it for a person such as a teacher who approached the area leading to the gate and then onto the bus collection section. To the extent that it matters, Ms Greiner, Mr Schultz and Mrs Dubroy understood that to be the purpose. But I reject any conclusion that it was unnecessary to provide barricading once this particular hole was detected simply on the basis that the area, in general, was highlighted by the application of such yellow paint.
- [45]The next matter for consideration is the other “conflicting responsibilities” which the State had. This was explored in some detail in Queensland Corrective Services Commission v Gallagher[13]in the judgment of de Jersey J (as he then was). He held, with the agreement of Pincus JA and White J (as she then was), that it was of some importance to appreciate the actual framework where a claim in negligence is based on administrative or managerial type decisions made within a bureaucratically based organisation to which an employee voluntarily subjects himself or herself (which organisation is subject to budgetary limitations and government policy): at [6]. The narrow submission made by the State concerning this matter is not that the broken concrete in question could not be repaired due to impecuniosity but, rather, that the reasonableness of any system of inspection and its capacity to respond to risks must be viewed for the viewpoint of bureaucratic and budgetary constraints. Given the specific qualifications, and expressions of limitation, contained in the documentation produced by QBuild, it could not be concluded, on the basis of the pre-incident reasonable response by an employer, that QBuild’s system of inspection was both proper and adequate for detecting defects of the kind demonstrated in this case. Consequently, even given budgetary constraints, on the whole of the evidence led at trial, I conclude that a properly directed inspection undertaken by Mr Edwards, or an equivalent employee, would not have strained the budgetary allocation, particularly where such an obligation was in any event cast upon Mr Edwards subsequent to the incident in question. A comparatively simple examination of all pathways to be used by teachers, other staff and students prior to the term commencing in each term of a relevant year would, on the evidence led at this trial, be easily achievable. Similarly, bureaucratic restraints neither would have stopped that particular system of inspection nor constrained the prompt placement of appropriate barricading around any detected area of safety concern. Given Ms Greiner’s responses canvassed earlier, I conclude that such an inspection would have been effective for its purpose.
- [46]The next consideration is that of causation. As correctly submitted by the State, the evidence must be such as to lead to the probable inference that the hole was extant for a sufficient time to enable it to be detected and barricaded (rather than repaired, in circumstances where I have found that barricading would have been effective to preclude further safety concerns). For the reasons canvassed earlier about the particular features of this hole, I conclude that Mrs Gilmour has proved, after a consideration of the probabilities of the length of the hole’s existence prior to this incident, that it was there at least since before, if not at, the beginning of the school year in 2010. The fact that there is a possibility open that by some action of some vehicle involved with the adjacent rubbish bins might have more recently than that produced such an effect does not negative that outcome. In the end, its state (as amply demonstrated by the photographs) leads me to the conclusion that the more probable inference is that the condition existed for that period of time and that an proper and adequate system that a reasonable employer should have implemented (by way of a reasonable response to the likelihood of risk) was an inspection by someone such as Mr Edwards; and that such would have detected in that period of time the “defect”.
- [47]While it is unnecessary for the conclusion that I have reached to canvass the plaintiff’s submission that since the State knew, or ought to have known, that trucks were being driven over the area in question and that large rubbish bins were being “bang(ed)” down in the general area reasonably frequently (and that that created a foreseeable risk of damage to the concrete in that area), if I had to consider it I would have determined that there was not sufficient evidence led of any other significant damage to the whole of the concreted area which would have been involved with such activity of a kind which would have led to the State being put on notice to take a course of ensuring some special inspection of the area on a more frequent basis (though knowledge of that kind reinforces the conclusion that an inspection once a year would be inadequate).
- [48]Turning, then, to the subsidiary issue of contributory negligence, the State has directed no specific submissions to me about that. Even if it had, I still would have been satisfied, as I am, that the actions by Mrs Gilmour at the relevant time reflected mere inattention or inadvertence, particularly when regard is had to the activity she was necessarily engaged in (namely the absolutely orthodox position of having a discussion with another teacher, momentarily, in passing by her on such a pedestrian crossing). I do not find that she exposed herself to a risk of injury, particularly in circumstances where no other person had detected this area as being in any way a hazard to an ordinary path of travel. Thus, on the whole of the conduct of both parties, any comparison both of culpability and of the relevant importance of the acts of the parties causing damage, I find that there is no case for a conclusion of contributory negligence on her part.
Quantum
Pain, suffering and loss of amenities
- [49]Despite Doctors Campbell, Fitzpatrick and Van Der Walt being cross-examined, the main outcome of their oral evidence was simply a concession by Doctors Campbell and Van Der Walt that, certainly as at 2012, the plaintiff did not satisfy the criteria for a diagnosis of Complex Regional Pain Syndrome (“CRPS”). Of course, that was based upon a diagnosis under AMA5 (Table 16.16 – which requires the satisfaction of some 8 separate criteria).
- [50]Even so, as contended for by the plaintiff, regardless of any diagnosis of CRPS that the plaintiff may have suffered, at least from time to time some of the criteria forming that syndrome were evident on an examination of her by medical practitioners. To the extent that she had such, then the assessment under this head of damage must take account of it, to the extent to which her credibility is accepted on these and similar issues.
- [51]As to the plaintiff’s credibility, no attack was made upon that by the defendant – and rightly so. While I accept that Mrs Gilmour has at times (and often as the result of advice given to her) focused perhaps too heavily on, for instance, her day-to-day pain, I accept that she gave her evidence in a genuine and forthright manner and did not exaggerate in any discernible way either her pain or her restrictions. Importantly, no doctor expressed an opinion to the contrary.
- [52]To the extent that the different specialist medical practitioners gave different percentage estimates of disability - putting any diagnosis by any such practitioner of CRPS to one side - there really is not a significant difference between the assessments made by each of the relevant specialist orthopaedic surgeons and neuro-surgeon concerning this or the physical manifestations of pain and restriction. There is no evidence that I accept that the extent of pain will worsen. As I indicate later, I do not accept either Dr Fitzpatrick’s over-optimistic or Dr Campbell’s relatively downbeat prognosis.
- [53]With respect to the matter of constipation, I am a little perplexed, in the end, about the seeming contradiction between the gastroenterologist’s (Dr Kostic’s) “reports”. In his first, dated 15 June 2011, he concluded that Mrs Gilmour’s problems “are purely functional” and that he was “glad” that she responded to treatment “nicely”, having encouraged her to continue the same dietary regime and taking probiotics from time to time. This was in the context in which Mrs Gilmour had told Dr Kostic that she had taken no pain killers for the eight months prior to that time. On the basis that the problems were “purely functional”, it would appear that, at least according to that report, there was no pharmacological reason for the constipation, much less resulting from the intake of pain medication. But in a facsimile transmission by Dr Kostic to WorkCover Queensland dated 28 September 2011, he proffered the clear view that pain killers, including codeine, did affect the function of Mrs Gilmour’s bowel, with the constipation resolving after withdrawal of pain killers and undertaking a “proper dietary regime”. Further, in his last report dated 19 October, 2011, Dr Kostic reported that Mrs Gilmour had taken pain killers “a few weeks ago” and “noticed significant deterioration in her bowel function”. This report was produced as a result of a follow-up visit. It contains no further diagnosis but does not contain any comment that the plaintiff’s reported effects of taking pain killers were medically inaccurate. Thus, I accept that there is a relationship between Mrs Gilmour taking pain medication and consequent constipation. Her evidence is, generally, to the effect that she therefore avoids pain killers. To the extent that she does and that this causes her additional pain which is not capable of relief by such medication, some allowance must be made.
- [54]Taking, as I must, the plaintiff as she is, with all the after effects that she has suffered, it is necessary then to determine what sum should be awarded for pain, suffering and loss of the amenities of life. I have, from different sides, been urged to accept, as the most recent decisions available, two different decisions of mine (namely, Judge v RH Grey & Son Pty Ltd & Ors[14]and Bagiante v Bunnings Group Limited[15]).
- [55]Dealing with Bagiante first, although it involved, as here, a fracture of the ankle (though to the left, rather than to the right), I found that an arthroscopy should and would be conducted, based upon the acceptance of that plaintiff’s complaints of pain. I also found that she would undergo that operative procedure. With respect to its prospects of success, they were, necessarily, guarded. There, as here, the plaintiff relied upon Judge. [As I noted in Judge (at [53]), although the plaintiff had made a good recovery, the injury that he suffered was extremely distressing and that plaintiff’s continuing problems involved significant restrictions on his ability to enjoy the amenities of life, especially because of the amputation of four of his five toes on the right foot. Additionally he was aged 26 at trial.] I assessed general damages at $45,000.00 in Bagiante.
- [56]In Judge I set these damages at $70,000.00.
- [57]The plaintiff contends, here, for $90,000.00. And the defendant contends, here, for $40,000.00.
- [58]The plaintiff here (born 30 March 1971) was aged 42 at trial. Noting that there are no truly recent comparable decisions, given that I have accepted Mrs Gilmour’s complaints and restrictions, particularly those at the end of a teaching day, upon factoring in that she will continue to suffer (from her present 42 years of age) for the rest of her life (which includes restrictions on home/garden activities), I assess damage under this head at $65,000.00 (where the nature of the continuing pain cannot be relieved by medication without disconcerting bodily effects).
Interest on past pain, suffering and the loss of amenities
- [59]Assigning $25,000.00 for the period from 10 March 2010 to the present time, at 2% per annum for 3.5 years, the yield is $1,750.00.
Past loss of earning capacity
- [60]This has been agreed between the parties in the sum of $60,416.77.
Interest on past loss of earning capacity
- [61]Interest on past loss, less the net workers’ compensation benefits ($39,528.78), at 5% per annum since August 2011 (which is the first date of reduction in what the plaintiff received), yields $2,043.20.
Past superannuation loss
- [62]It is common ground that, at the rate of 12.75%, the yield on $20,431.96 is $2,605.00.
Future loss of earning capacity
- [63]Mrs Gilmour’s clear evidence is that she considers herself restricted to four days teaching per week. Given that I have accepted her statements both of pain and restriction, and given my acceptance that she does need elevation of her right leg which makes a three day weekend somewhat of an imperative rather than simply desired, I consider that her future loss of capacity to earn income is affected to that extent, at least.
- [64]The plaintiff contends that the second aspect of this loss is compensation for the prospect that, as she gets older, she will suffer a further diminution in her earning capacity beyond the loss of one working day (which is also productive of financial loss) and consequential employment problems resulting from that. On this score, I do not accept the opinion of Dr Campbell that Mrs Gilmour’s part-time work should be 15 to 25 hours per week. It is clearly not so at the moment; and Dr Campbell’s opinion applied to that as well. While I accept his observation that chronic pain makes it difficult to work full-time and maintain a high level of work commitment, I am impressed by Mrs Gilmour’s resilience. I also reject Dr Fitzpatrick’s diagnosis and projection of fitness for “normal hours”, given her answers about the subjective notion of pain. Taken together with what I judge to be her devotion and affection for the work that she undertakes, and the satisfaction that she gets from teaching children, since there is nothing in those parts of the medical opinions that I have accepted about any worsening of the pain, I see no real basis for Mrs Gilmour to either be unable to continue to work four days per week, much less that she will give up work entirely in the future (except as part of her own decision to retire), particularly given her sympathetic and accommodating employer.
- [65]While I accept that she does presently need the income to meet her financial commitments, I do not see in any way that that militates against my conclusion that she is dedicated to her teaching life, has made significant adjustments to accommodate that and is likely, subject to her own decision to retire, to continue at the current rate of four days a week.
- [66]Further, the plaintiff contends that as Mrs Gilmour is forced to reduce her working hours, it will become harder for her to be fitted into the mainstream teaching scenario and, therefore, become harder for her to maintain employment. As I have indicated, I do not accept the premise on which that is based.
- [67]As for her likely retirement, even though she is only now aged 42, her husband is effectively in retirement having finished his service with the armed forces. On her present symptoms, projected forward, I find that she is likely to keep working until her early 60’s. Since I also have to view Mrs Gilmour’s prospects from the position of what she would have done but for this incident, the conclusion I reach is that, while she was clearly dedicated to teaching and enjoyed it, she nevertheless would have seriously considered retirement well before the date of retiring age of 67 years, maybe even before some five years earlier than that (i.e. before 62 years of age).
- [68]In considering the probabilities of what future employment the plaintiff will now engage in, I reject the defendant’s contention that she, acting reasonably in the circumstances, ought to apply for jobs which would increase her annual salary. Considerable examination was conducted at trial of the physical requirements of each of the positions which the defendant suggests would be open to her. Given Ms Greiner’s evidence about who presently undertakes those positions at Yarilee State School (and therefore the marginal likelihood of her obtaining such positions at the Yarilee State School) and given that Mrs Gilmour would, therefore, need to seek such positions elsewhere where the flatness of the school grounds and one storey height of the buildings would not be available to her, I reject any conclusion that she will be able to take better paying positions within the primary school teaching system of the State. It does sit a little ill in the defendant’s submission to argue that Mrs Gilmour ought, reasonably, to seek out these better paying positions, when it is clear from her evidence that these were not positions that she would have, but for the accident, sought in her primary school teaching career, especially considering her less than enthusiastic response for it in stating that she “toyed with” the idea of advancement, in circumstances where the career path narrows significantly (as shown, for instance, for this school).
- [69]I also reject any contention based upon Ms Greiner’s evidence that the 3,000 to 4,000 “steps” per day that she undertook in her acting principal position were simply a result of her attitude to walking, rather than carrying out in an appropriate manner her responsibilities. Even if one were to reduce those figures by 50%, it would still be way beyond Mrs Gilmour’s future capacity. In any event, according to Mrs Greiner, any major promotional advancement would require a person who worked only four days a week to enter into some kind of sharing arrangement. This kind of arrangement was in no way properly investigated as likely to eventuate in this mitigation aspect examined in the defendant’s case.
- [70]The last remaining element of this head of damage is the discounting for “usual contingencies”. Although the plaintiff has canvassed some Supreme Court decisions which favour a discount rate – special circumstances apart – other than of the order of 15%, I am inclined, like McMeekin J in Craddock v Anglo Coal (Moranbah North Management) Pty Ltd [2010] QSC 133 (at [72]-[76]) not to vary from that as a base. Furthermore, as has been frequently noted, not all contingencies are adverse. But any movement from 15% can, and ought, be specifically reflected by a reasoned determination as to why, including dependence upon the age of the plaintiff (who is the subject of the relevant assessment).
- [71]I intend to use a multiplier of 25 years. But taking the plaintiff to the projected age that I have discussed above as to her likely intent, pre-incident, concerning her retirement, given that she is 42 years of age and noting the likelihood of continuing problems of the present kind (but not worse), I still intend to apply a discounting of 15% as she may, taking Malec principles into account, have times where she is unable to work her full 4 days per week or may seek part-time work post-retirement, balancing the unchanged prospect of retirement on both scores.
- [72]Since past loss of earning capacity was based upon a present weekly figure of $201.12, I see no reason on the information before me as to why that should not also be the basis for future loss of earning capacity.
- [73]The multiplier on the 5% tables for 25 years is 753.6. That calculation generates the sum of $151,564.03. After deduction of 15% for all contingencies, the loss is $128,829.43.
Loss of future superannuation entitlements
- [74]At the rate of 12.75%, the resulting entitlement is $16,425.75.
Taxation instalments
- [75]This is an appropriate way to cover those particular amounts which satisfy a Fox v Wood analysis or are other taxation instalments. The total is agreed by both parties to be $12,021.71.
Past special damages
- [76]This is comprised of several components.
First, agreed WorkCover expenses are $22,885.03.
Secondly, the “Medicare refund” is agreed at $914.85.
Thirdly, there are travel expenses. Accepting the defendant’s submissions on this point, particularly noting that many visits to the chemist involved trips for things other than appropriate medication or that in addition, an appropriate allowance, doing the best one can from the information, is to award the sum of $300.00.
Fourthly, in terms of the expenditure incurred, considering that there is no express evidence from Mrs Gilmour that she has followed in any way the recommendations made by Ms Melissa Walter, I have no basis on which to allow for any of the costs of any past therapy.
Fifthly, there is the matter of medication. I accept the analysis made by the defendant that the appropriate established expense is $800.00.
Interest on past special damages
- [77]On the basis that payments, post-WorkCover, equal $1,100.00, interest at the rate of 5% per annum since such cessation yields $110.00.
Future special damages
- [78]As already noted, the plaintiff gave no evidence that she had undertaken, at her own cost, any of the kind of therapy suggested by Ms Walter. Even so, I think it is likely that she will, from time to time, need some of the kinds of treatment outlined by Ms Walter in Schedule D of that occupational therapist’s report. Accordingly, I will allow a global sum of $1,000.00.
- [79]With respect to future medication, while it is clear that the plaintiff identified an ongoing expense in the purchase of Osmolax, no medical expert gave evidence as the likelihood of the necessity for that to continue. Even so, given my acceptance of the plaintiff’s ongoing complaints, and the necessary likelihood that such will continue right through the rest of her life, I will allow a further sum, globally, of $1,000.00.
- [80]Hence, since no other such thing as, for instance, equipment aids were touched upon by the plaintiff as necessary for her life, in either the reduction or alleviation of her pain, there is just no evidence to back up those aspects in Schedule B of Ms Walter’s report dealing with assistance in overcoming difficulties with tasks.
Table of damages
- [81]On the conclusions that I have reached, the following tabulates the various heads of damage, the relevant WorkCover deduction and the total awardable for quantum:
No. | Head of damage | Amount |
1 | Pain, suffering and loss of amenities of life | $65,000.00 |
2 | Interest on past pain, suffering and loss of amenities of life | $1,750.00 |
3 | Past loss of earning capacity | $60,416.77 |
4 | Interest on 3 | $2,043.20 |
5 | Past superannuation loss | $2,605.00 |
6 | Future loss of earning capacity | $128,829.43 |
7 | Future superannuation | $16,425.75 |
8 | Taxation instalments | $12,021.71 |
9 | Past special damages | $24,899.88 |
10 | Interest on special damages | $110.00 |
11 | Future special damages | $2,000.00 |
12 | Less WorkCover refund | $74,891.55 |
| Total | $241,210.19 |
Judgment
- [82]On the findings that the defendant is liable, that no contributory negligence is found and that the damages are assessed at $241,210.19, there will be judgment for the plaintiff against the defendant in the sum of $241,210.19.
Costs
- [83]Because costs are subject to a statutory regime, I will hear submissions from both sides as to costs, either on delivery of the judgment, or by written submissions within an allocated time.
Footnotes
[1] (1956) 1960 CLR 18.
[2] [2005] HCA 14.
[3] [2005] QCA 354.
[4] (2009) 240 CLR 1.
[5] [2002] WASCA 7.
[6] (1980) 146 CLR 40.
[7] (1957) 97 CLR 202 at 222.
[8] (2005) 223 CLR 486.
[9] (2012) 246 CLR 182.
[10] [1998] 3 VR 408.
[11] (1986) 160 CLR 301.
[12] (1985) 59 ALJR 492.
[13] [1998] QCA 426.
[14] [2012] QDC 33.
[15] [2012] QDC 120.