Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2017
  4. McAllister v Brisbane City Council - [2017] QDC 94

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McAllister v Brisbane City Council[2017] QDC 94

McAllister v Brisbane City Council[2017] QDC 94

DISTRICT COURT OF QUEENSLAND

CITATION:

McAllister v Brisbane City Council [2017] QDC 94

PARTIES:

HELEN LOUISE McALLISTER
(plaintiff)

v

BRISBANE CITY COUNCIL
(defendant)

FILE NO/S:

BD3221/14

DIVISION:

Civil

PROCEEDING:

Trial

DELIVERED ON:

4 May 2017

DELIVERED AT:

Brisbane

HEARING DATE:

27, 28 and 29 March 2017

JUDGE:

Farr SC, DCJ

ORDER:

The claim is dismissed

CATCHWORDS:

TORTS – NEGLIGENCE – PERSONAL INJURY – where plaintiff wishes to recover damages for personal injury from local authority – where plaintiff alleges foot entrapment between protruding stump and footpath in park – where defendant owed duty of care – liability disputed – where mechanism of injury in issue – where obviousness of risk is in issue.

Civil Liability Act 2003, s 55

Civil Liability Regulation 2014

Kelly v State of Queensland [2013] QSC 106

COUNSEL:

R Myers for the plaintiff

D de Jersey for the defendant

SOLICITORS:

Shine lawyers for the plaintiff

Barry Nilsson lawyers for the defendant

  1. [1]
    The plaintiff claims damages for personal injuries that she suffered as a result of an incident at the Forest Lake Parklands at Forest Lake in Brisbane (“the park”).

Liability

Background

  1. [2]
    On 17 September 2012, the plaintiff and her three year old daughter attended the park. The plaintiff’s daughter was riding her bicycle along a concrete walking path whilst the plaintiff followed her on foot.
  1. [3]
    The plaintiff’s daughter lost control of the bicycle and left the path near its end and began to travel down a decline towards a lake. The plaintiff ran after her daughter. The plaintiff claims that when she stepped off the path her right foot became wedged, although she did not see at the time what it was that caused her foot to become trapped as she was focused only on her daughter. She claims that her body twisted due to her forward momentum and she heard two loud snaps emanate from her leg. She did not fall.
  1. [4]
    It is not disputed that the plaintiff suffered a spiral fracture of her right tibia as well as a spiral fracture of her right fibula in the park that day.
  1. [5]
    The plaintiff’s daughter fell into the lake whilst on the pushbike. The plaintiff claims she moved from where her foot became wedged after hearing the snaps, to a nearby tree for support, then to another tree for further support and then to the edge of the lake – a distance of approximately 10 metres of uneven, partially grassed downhill sloping terrain. When she got to the edge of the lake she could see that her daughter was standing on an inside ledge that was itself underwater. She said that she lowered her left leg on to that ledge, leaving her damaged right leg on the embankment and lifted her daughter and the bike from the lake. She then laid beside the lake’s edge unable to walk before removing her mobile telephone from her backpack and calling triple zero.
  1. [6]
    The plaintiff testified that when she moved between the trees and to the lake she placed weight on her damaged right leg. She said:

“… I get away from the tree and kind of step and hobble and I can feel the two ends of the broken bone in my leg grating against each other and I go to the tree to my left and I’m hopping and hobbling trying not to put any pressure on my right foot, get to that tree …”

  1. [7]
    Whilst awaiting the arrival of ambulance officers, the plaintiff also phoned her husband who then attended the scene shortly thereafter.
  1. [8]
    Upon arrival, ambulance officers attended to the plaintiff before transporting her to hospital where she underwent surgery two days later to repair the damage.
  1. [9]
    The plaintiff testified that she next returned to the park on 9 June 2013 where she saw what she thought was the top of a brick just protruding above surrounding soil near the side edge of the pathway in question close to its end. She took a series of photographs of that area and its surrounds at that time and those photographs have been received into evidence.[1]
  1. [10]
    Upon seeing this, the plaintiff has deduced or inferred that her foot became trapped between that brick and the side edge of the concrete path.
  1. [11]
    Brisbane City Council records record that the plaintiff contacted its call centre on 14 June 2013 and advised that she had suffered a broken leg after her foot had become trapped between a brick near to the end of the path and the path itself, as well as identifying other potential hazards that she said existed in the park and asked for the issues raised to be “looked at and made safe”.[2]
  1. [12]
    On 17 June 2013 the plaintiff returned to the park and saw that what she had thought was a brick was in fact the top of what appeared to be a timber post embedded in the ground and which had very recently been painted orange. She took a photograph of it in that condition.[3]
  1. [13]
    Upon seeing the timber post, the plaintiff deduced that her foot became trapped between the top of that post and the edge of the path.
  1. [14]
    As a result of her injuries, the plaintiff claims to have suffered past economic loss, past out-of-pocket expenses and will suffer future economic loss.
  1. [15]
    The defendant submits that the claim should be dismissed because the plaintiff has failed to discharge her onus of proof that the incident occurred as alleged.

The pleadings

Claim

  1. [16]
    On 21 August 2014, the plaintiff filed a Claim and Statement of Claim seeking damages for the injuries she allegedly sustained as a result of the incident. The Statement of Claim is now in its further, further amended version.[4]
  1. [17]
    At paragraph 3 of the Further Further Amended Statement of Claim the plaintiff alleges, as is common ground, that at all material times, the defendant council:
  1. (a)
    was the owner and occupier of the park; and
  1. (b)
    was responsible for the care, control and maintenance of the park.
  1. [18]
    In relation to the duty of care, the plaintiff claims (at paragraph 4), and it is common ground, that the defendant owed her a duty:
  1. (a)
    to take all reasonable precautions for her safety;
  1. (b)
    to not expose her to “any risk of injury of which it knew or ought to have known”; and
  1. (c)
    to warn her of any risk of injury of which it knew or ought to have known.

The defendant in response to the pleaded duty of care notes by way of defence that the duty is to avoid a foreseeable risk of injury and that the extent of the duty is governed by the provisions of the Civil Liability Act 2003.

  1. [19]
    In paragraph 5 of her Further Further Amended Statement of Claim the plaintiff describes the incident as follows:
  1. (a)
    on 17 September 2012, at approximately 11.45 am, the plaintiff and her daughter were at the park;
  1. (b)
    he plaintiff’s daughter was riding her bicycle in a north easterly direction along a concrete footpath, with the plaintiff following behind her on foot;
  1. (c)
    the plaintiff’s daughter lost control of her bicycle and began to travel towards the lake which was approximately 10 metres from the footpath; and
  1. (d)
    the plaintiff ran after her daughter. As she stepped off the footpath, her right foot became entrapped between a wooden post, which was protruding from the ground and the exposed, raised edge of the contiguous footpath;
  1. (e)
    after the entrapment the plaintiff’s forward momentum caused her body to rotate. The plaintiff heard two loud snaps in her right leg and immediately felt agonising pain.
  1. [20]
    In her first Statement of Claim filed in August 2014, the incident allegedly occurred differently:
  1. (a)
    as she stepped off the footpath, her right foot struck a wooden post which was protruding from the ground;
  1. (b)
    as she struck her foot on the wooden post, she fell forwards and heard two loud snaps in her right leg and immediately felt agonising pain.
  1. [21]
    The plaintiff’s sworn Notices of Claim allege a version of the incident consistent with the version that has now been abandoned by the plaintiff when she filed her Further Further Amended Statement of Claim. That is, they make no mention of the entrapment allegation.
  1. [22]
    The defendant denies the incident occurred either by the plaintiff’s foot becoming entrapped or by the plaintiff striking her foot. Its case is that the court would not be satisfied to the requisite standard that the plaintiff did not sustain her leg injury whilst she was attempting to retrieve her daughter from the lake by falling left leg first into the water with her right foot twisted behind her on the embankment.[5]
  1. [23]
    The plaintiff suffered a closed spiral fracture of the distal third of the right tibia and a closed spiral fracture of the distal third of the right fibula. She also claims she suffered a right knee injury.

Defence

  1. [24]
    The defendant admits that it was the owner and occupier of the park and that it:
  1. (a)
    owed the plaintiff a duty of care;
  1. (b)
    denies the incident occurred as alleged by the plaintiff;
  1. (c)
    denies the top of the wooden post was protruding above the ground;[6]and/or
  1. (d)
    denies it was foreseeable that the plaintiff might suffer an injury due to the location and position of that wooden post and denies that it was obliged to highlight the post or erect a warning sign or to remove the post.
  1. [25]
    The defendant denies that it has breached any duty of care that it owed to the plaintiff because:[7]
  1. (a)
    it was not aware of the existence of the wooden post until 11 June 2013 when the plaintiff first lodged a complaint about it;
  1. (b)
    the defendant’s staff attended the park three to four times per week to remove rubbish, perform general repairs and maintenance and identify defects and hazards;
  1. (c)
    any hazard posed by the wooden post (which is not admitted) was not identified during the Council’s inspections and the wooden post was also not identified, because it was covered by soil;
  1. (d)
    the plaintiff first informed the defendant of the incident on 11 June 2013. Prior to that date, no member of the public, nor any members of the defendant’s staff made a complaint in relation to the wooden post;
  1. (e)
    the wooden post was not apparent upon a reasonable inspection of the park;
  1. (f)
    if the hazard posed by the wooden post was capable of detection upon reasonable inspection of the park, it would have been identified before 11 June 2013;
  1. (g)
    it would not have been reasonably practicable for the defendant to highlight the wooden post with paint and/or erect a warning sign for the purpose of alerting persons using the park to its presence as the defendant was not aware of the existence of the wooden post; and
  1. (h)
    it would not have been reasonably practicable for the Council to remove the wooden post from the ground as the Council was not aware of the existence of it.
  1. [26]
    The defendant further contends that it did not breach its duty of care because[8]:
  1. (a)
    it carried out an adequate inspection of the parklands for the purpose of identifying and removing potential tripping hazards, including the wooden post;
  1. (b)
    it was not necessary for it to highlight or remove the wooden post because it did not protrude from the surface;
  1. (c)
    it could not have maintained the surface of the ground level at the same level as the pathway because of the extensive soil erosion to which the relevant area was prone;
  1. (d)
    further, it was not obliged to maintain the ground level of the parklands at the same height as the pathway, as that would have introduced a further hazard consisting of eroded soil and other organic material being washed onto the pathway creating a slip or trip hazard; and
  1. (e)
    the wooden post did not protrude from the ground and did not constitute a trip hazard to uses of the park who were keeping a proper lookout when stepping off the path onto the adjacent generally uneven natural ground.

Issues

  1. [27]
    The first issue for resolution is whether the plaintiff has proved, on balance of probabilities, that the wooden post played any role in causing the injuries sustained by her. Determination of that issue requires assessment and consideration of the relevant evidence.

Evidence – Plaintiff

  1. [28]
    On 15 July 2013 the plaintiff submitted a Form 1 Notice of Claim in which she stated that:

“…as the claimant stepped off the footpath towards her daughter and the lake her right foot struck something solid protruding from the ground, which was later identified as a wooden fence post and she lurched forward. The claimant heard two loud snaps in her leg and felt agonising pain.”[9]

  1. [29]
    Her original Statement of Claim[10]is in almost identical terms other than for alleging that she “fell forwards” as opposed to “lurched forward”. The plaintiff maintained this factual claim in her Amended Statement of Claim and her Further Amended Statement of Claim.[11]
  1. [30]
    In her Further Further Amended Statement of Claim the plaintiff claimed that her foot became entrapped between a wooden post which was protruding from the ground and the exposed raised edge of the contiguous footpath and that her momentum caused her body to rotate when she then heard the two loud snaps.
  1. [31]
    The plaintiff gave evidence:
  1. (a)
    consistent with the allegation contained in the Further Further Amended Statement of Claim as to how she sustained the injury;
  1. (b)
    of the location of the wooden post in relation to the footpath and the surrounding area;[12]
  1. (c)
    that she had taken her daughter to the park on about 200 prior occasions.[13]She was not aware however of the existence of the wooden post prior to the incident. She also said that she did not look at the wooden post or the edge of the footpath on the date of the incident;[14]
  1. (d)
    that before the incident occurred, she was looking towards the lake in the direction her daughter was travelling with her focus being on her daughter;[15]
  1. (e)
    that she was wearing Diadora brand training shoes at the time of the incident which she has since discarded;[16]
  1. (f)
    that she only became aware of the wooden post on 9 June 2013 when she attended the park for the first time since the incident. On that day, the plaintiff states that she took a photograph of the wooden post and states that she brushed some loose leaves off the timber (or what she believed to be a brick) in order to obtain a clear photograph of the hazard for the defendant;[17]
  1. (g)
    that she is unable to say whether the appearance of the wooden post/brick and the footpath edge were similar at that time to their appearance on the day of the incident; and
  1. (h)
    that when her foot became wedged she touched her right knee but she did not know whether she actually needed to use force to lift her leg, or if she was able to use her leg to lift her foot[18].
  1. [32]
    When questioned as to why she made no reference in her Notice of Claim that her foot became trapped she said: “I believe I did”,[19]and that “it’s a question of semantics”.[20]

Evidence – Paul Piper

  1. [33]
    Mr Piper was one of the two paramedics who attended at the park on the day in question to attend to the plaintiff.
  1. [34]
    Mr Piper had little independent recollection of the event. He made contemporaneous notes based on information supplied by the plaintiff and based upon his own observations.[21]He testified that he would have accurately recorded that which he was told.[22]
  1. [35]
    Relevantly, the notes record:

“Patient was running to stop her daughter from falling into the Forest Lake lake when she tripped on the slight lip on the edge of the path falling forward and feeling a brake [sic] in right lower leg. She then landed left foot down in the lake half a metre down. Denies any other injuries from fall into lake. O/e patient alert and orientated, well perfused and breathing normally… Pain managed with 3 ml Penthane, 12.5 ml Morphine and vacuum splint …”

  1. [36]
    Mr Piper testified that after reading his notes he had some recollection of his interaction with the plaintiff and said that his understanding of the plaintiff’s comments were that she tripped on the lip of the path that bordered the lake – not on the edge of a path approximately eight to ten metres away.

Evidence – David Walden

  1. [37]
    Mr Walden was the registered nurse who attended to the plaintiff in the Emergency Department at the hospital. He made notes recording both what he was told by the plaintiff as well as his observations. Mr Walden also had no independent recollection of his interaction with the plaintiff which, given the passage of time and the busy nature of his job, is hardly surprising.
  1. [38]
    Mr Walden testified that he was always careful in his recording of information and observations and that his regular practice was to discuss details of the subject incident in some depth with the patient, sometimes in the presence of ambulance officers, to ensure he has a full and correct understanding of the information being provided.[23]
  1. [39]
    His notes relevantly recorded the following:

“While attempting to stop daughter on bicycle falling into lake, the patient has fallen into lake – patient reports left leg fell in water while right leg stayed on shore. Patient reports hearing ‘snap’ as right foot rolled over...”[24]

Evidence – Triple Zero Call

  1. [40]
    The plaintiff’s triple zero calls were recorded and tendered into evidence.[25]In the first call the plaintiff told the operator that:

“…my daughter was riding her bike, she’s fallen in the lake, I run to try and catch her, I’ve tripped, fallen and I’ve broken my ankle.”

  1. [41]
    When asked how far she fell, the plaintiff replied:

“I just tripped over a pavement, not far at all.”

She also told the operator:

“… I think I’ve done tib and fib – its flapping in the breeze.”

She was also overheard speaking to her daughter when she said:

“… I tripped when I was trying to catch you.”

Later in the conversation she clarified that she believed that she had broken the “lower third tib and fib rather than the ankle”.

Evidence – Dr David Morgan

  1. [42]
    Dr Morgan, Orthopaedic Surgeon, was requested to consult with and prepare a medico-legal report in relation to the plaintiff. In fact, he prepared three such reports being dated 7 November 2013, 2 June 2016 and 20 March 2017.[26]Dr Morgan noted that the plaintiff suffered closed spiral fractures involving the distal thirds of the right tibia and fibula as well as a possible right knee injury and surgical repair by the insertion of an interlocked intramedullary nail on 19 September 2012.
  1. [43]
    Relevantly, Dr Morgan said at page 10 in his report dated 7 November 2013:

“She has described an incident occurring late on the morning of 17 September 2012. It is probable that she has sustained an internal rotation injury of her right shin whilst her foot was caught between the path and the post.”

  1. [44]
    In his report of 2 June 2016, Dr Morgan opined that despite the injury, it would have been possible for the plaintiff to mobilise over a distance of eight to 10 metres noting that several factors could be involved, such as:

“● a markedly heightened anxiety as a result of her child heading towards the lake;

  • an adrenaline surge associated with an injury of this nature which may tend to heighten the flight and fright component;
  • patients often say that there “is an initial numbness after a severe injury of his nature” followed thereafter by the onset and persistence of severe pain; and
  • she may have hopped on the unaffected limb the entire distance and not been obliged to load bear on the fractured limb …”
  1. [45]
    I note that in relation to the last two dot points, the plaintiff’s evidence was that she experienced severe pain immediately after hearing the snaps and that there is no evidence that she mobilised to the lake by only hopping on her left leg.
  1. [46]
    In cross-examination, Dr Morgan said that even if the plaintiff suffered immediate onset pain upon sustaining the injury and assuming her lower leg was “flapping in the breeze” it was still possible for her to traverse eight to 10 metres, but he could not comment on the probability of the plaintiff being able to do that.[27]

Evidence – Dr Anthony Ganko

  1. [47]
    Dr Ganko, Orthopaedic Surgeon, was also requested to provide a medico-legal opinion in relation to the plaintiff and he prepared two reports dated 5 May 2014 and 4 March 2016.[28]Dr Ganko is of the opinion that it would be “extremely unlikely that the plaintiff could have continued to ambulate towards the lake, over that rough 10 metre decline after sustaining the injury to her right leg”. In evidence he said:

“…to continue to ambulate at pace, be it briskly walking or running, directly towards the lake I wouldn’t have thought would be possible after having sustained a spiral fracture of the tibia and fibula, which is very unstable.”[29]

  1. [48]
    In re-examination, Dr Ganko stated that the plaintiff could have crawled, or hopped or rolled to the lake,[30]but he did not think it possible to move at any speed, even walking at pace with an unstable spiral fracture of the tibia and fibula.
  1. [49]
    Two further points of significance arise from Dr Ganko’s evidence. The first is that whilst he accepted that the mechanism by which the spiral fractures could have been occasioned could include her foot becoming trapped in a manner described in her evidence, it also includes her falling into the lake on her left leg and her right leg remaining on the shore. Both mechanisms could cause a severe twisting injury such as that sustained by the plaintiff.[31]
  1. [50]
    The second point is that the plaintiff told Dr Ganko that after she heard a crack she continued to run to the lake.[32]That is significantly inconsistent with her present evidence.

Evidence – Robert John Loch

  1. [51]
    Dr Loch is highly qualified and relevantly holds a Bachelor of Agricultural Science with a specialty in soils and his research career has specialised in soil erosion. He has been working in that area for 45 years.[33]He prepared two reports in relation to this matter dated 29 January 2016 and 24 March 2017.
  1. [52]
    Dr Loch carried out a site inspection on 11 December 2015 and was shown the photographs taken by the plaintiff on 9 June 2013. For reasons provided in his first report, Dr Loch’s opinion is that it is highly unlikely that the top of the wooden post was exposed prior to the 2012-13 wet season. In his opinion, that post was exposed by erosion during that above-average wet season which commenced two months after the plaintiff’s injury was sustained. He said:

“…exposure of the piece of wood on the soil surface in June 2013 cannot be used to infer that the wood was similarly exposed 9 months previously. The high erosion potential in the intervening period makes such an inference untenable.”[34] 

  1. [53]
    Dr Loch did not stray from this view during lengthy cross-examination.

Evidence – Brendan McDougall

  1. [54]
    Mr McDougall is a mechanical engineer and a specialist engineering consultant at Intersafe, an international safety ergonomics and forensic engineering firm in Brisbane. He provided a report dated 13 March 2017.[35]Mr McDougall’s report principally focused on the potential safety issues arising from the top of the wooden post being exposed, on the assumption that it was exposed at the time the plaintiff sustained her injuries. He did offer some criticism of Dr Loch’s methodology in arriving at his opinion, although in evidence Mr McDougall stated that whilst he was of the view that the top of the post had been covered and uncovered by soil a number of times, he was unable to offer any opinion as to whether it was uncovered on 17 September 2012.[36]
  1. [55]
    On another topic, Mr McDougall testified that the plaintiff had told him over the telephone that “she physically had to put her hand underneath her thigh to pull her foot out as it was stuck”.[37]

Evidence – Phillip Byard

  1. [56]
    Mr Byard’s report and evidence is based upon an assumption that the top of the wooden post was exposed by at least 15mm to 20 mm at the time of the subject event. His evidence is therefore of no relevance to the issue of whether or not it was in fact exposed as at 17 September 2012.
  1. [57]
    I note once again that the plaintiff told Mr Byard that “she needed to pull her right foot to free it from the ground whilst stumbling forward”.[38]She also told him that she “hobbled” down the embankment to where her daughter was in the water.[39]

Evidence – Mal Norup

  1. [58]
    Mr Norup has been employed by the Brisbane City Council for 26 years and had held the position of Team Leader of Parks and Gardens at Forest Lake for about 15 years.[40]
  1. [59]
    He keeps a lookout for potential hazards such as broken glass, syringes, tree roots and low-lying tree branches. Anything identified as a potential hazard is removed by his crew where possible, or logged as a job/work request to be actioned by another council crew/contractor.
  1. [60]
    In 2012 he worked in a crew of three people and would spend one full day a week at the park. He would spend most of his time maintaining the pathways around the park.
  1. [61]
    Mr Norup said that most of the area around the lake slopes down towards the pathway at the lake’s edge. Sometimes when it rains, topsoil is carried down the hill onto that path. His crew then shovels the soil off that pathway by hand and moves it back up the slope.
  1. [62]
    In the course of preparing his evidence in this case, Mr Norup was shown a copy of the photograph of the wooden post that the plaintiff took nine months after the incident (exhibit 12). Prior being shown that photograph, he had never seen the wooden post.
  1. [63]
    Mr Norup noted from looking at the photograph that the wooden post does not seem to protrude from the ground. His evidence was that it is unlikely that he would have noticed something like that if he had come across it and even if he had seen it, he would not have removed it or marked it, because it did not protrude from the surface of the ground.

Assessment

  1. [64]
    The first hurdle that the plaintiff must overcome in this matter is that she must prove, on balance of probabilities, that the exposed wooden post played some role in causing the injuries she sustained – either by causing her foot to become trapped between it and the concrete path or perhaps, by causing her to trip over it.
  1. [65]
    Unfortunately for the plaintiff she has failed in that regard. I am not satisfied that her foot became trapped as alleged or that she tripped over the post. Nor am I satisfied that the top of that post was even exposed at the relevant time. Based upon the evidence before the court, it is more probable that she sustained the injury when she fell left-foot into the lake with her right foot remaining on the raised embankment behind her.
  1. [66]
    On this issue, the plaintiff’s evidence is crucial. There were no other eye-witnesses and without the plaintiff’s evidence the defendant would have no case to answer. There are however, many unsatisfactory features about the plaintiff’s evidence:
  1. (a)
    She has been remarkably inconsistent in her descriptions as to what happened. For example: 
  • she told the triple zero operator that she had tripped and fallen and made no mention of her foot becoming trapped;
  • the ambulance officer, Mr Piper, and the emergency department nurse, Mr Walden, have recorded that she told them that she fell left-foot into the lake with her right foot remaining on the raised embankment behind her;
  • she has been inconsistent as to whether she needed to use her hand to physically lift her left leg to free her foot;[41] 
  • she told Dr Ganko that she continued to run after sustaining the injury – rather than hobble or struggle from tree to tree; 
  • she claimed to have tripped and fallen or lurched forward in her Notice of Claim and initial Statements of Claims;
  1. (b)
    She did not see the wooden post at the time of the incident;
  1. (c)
    The first time she complained of her foot becoming trapped was nine months later on approximately 14 June 2013 after she visited the park for the first time since the incident on 9 June 2013 and seeing the brick/piece of wood for the first time; 
  1. (d)
    She did not ask her husband, when he attended at the park to render her assistance on the day of the incident, to check to see what caused her accident, nor did she ask him to do that in the days or weeks that followed. She has provided no credible explanation as to why she failed to do so; and
  1. (e)
    She did not contact the defendant to advise of the incident nor to complain of some hidden or unknown danger for park users until after she next visited the park approximately nine months later.
  1. [67]
    Furthermore, there is other evidence which causes me to have significant doubt that the injury was occasioned in the manner alleged by the plaintiff in evidence:
  1. (a)
    According to the uncontested evidence of Dr Ganko, the injury was no more consistent with the plaintiff’s foot becoming trapped and thereby causing her leg to twist then by her falling into the lake with her other foot remaining behind her up on the embankment. Significantly, I note in that regard that Mr Walden recorded that the plaintiff told him that when she fell left-foot into the water her right leg remained on the shore (this involves a drop of approximately 0.5 m) and she reported hearing a “snap” as her right foot rolled over; 
  1. (b)
    The improbability of the plaintiff being able to ambulate the approximate 10 metres distance to the lake on both legs; and
  1. (c)
    That fact that Dr Loch is of the opinion that the post would have been covered in September 2012 – and there is no evidence to the contrary unless I accept the plaintiff’s version of events as being accurate.
  1. [68]
    The plaintiff’s counsel has submitted that I should place little weight upon the evidence of Mr Piper and Mr Walden as it is apparent that they had simply misunderstood that which the plaintiff had told them on the day. Mr Myers has also submitted that due to the severe nature of the injury, plus the pain she was suffering and the pain relief medication administered, that little reliance can be placed on anything she said at that early stage as the danger of it being unreliable is great.
  1. [69]
    In that regard he has submitted that these “contemporaneous accounts” should be considered in light of the observations of McMeekin J in Kelly v State of Queensland,[42]where in addressing statements of this kind, his Honour said at [32]: 

“(d)  The defendant relies on the statements said to have been made by the plaintiff after the event to an ambulance officer and a treating specialist, Dr Albeitz, that he dived into the water. They each have their difficulties. Even assuming the brief versions to be accurately recorded there is no reason to suppose any real attempt was made to elucidate precisely what happened. The precise mechanism of injury was not of much significance at the time to either the ambulance officer or specialist, or to the plaintiff. The prospect of a badly injured man going to the trouble of attempting to correct a mistaken impression of how he had come to be injured, it being of no great significance, seems to me to be remote. Further the plaintiff had had morphine administered at some point which again lessens the weight that can be given to any remark he may have made, particularly to the specialist.”

  1. [70]
    Of course, whilst the issues raised by McMeekin J must be taken into account and given due consideration, this must occur in the context of all the relevant evidence and each case must depend upon its own facts. The evidence of Messrs Piper and Walden must be considered in light of all the evidence including the plaintiff’s remarkably calm demeanour as exhibited in the triple zero call and the fact that she failed to mention her foot becoming trapped to the triple zero operator, Mr Piper and Mr Walden. I do not consider that omission to be a “matter of semantics”, particularly given that the plaintiff is a fully trained and experienced emergency department nurse and would be expected to understand the need to be accurate when reporting the mechanics of an injury.
  1. [71]
    The issue in this matter is not whether I am persuaded by the evidence of Mr Piper and Mr Walden that the plaintiff sustained her injury in the manner as described to them by her, but rather it is whether upon consideration of all the evidence, am I satisfied, on the balance of probabilities, that the plaintiff sustained her injuries in the way that she has described in evidence.
  1. [72]
    I should note that I found both Mr Piper and Mr Walden to be honest witnesses and I accept that they each were careful in accurately recording in their notes that which they were told.
  1. [73]
    As was observed by McMeekin J, the issues that his Honour identified are relevant only to the weight to be attributed to the evidence in question. In this matter, it is my view that these considerations do little to diminish the weight which should be given to the evidence of Messrs Piper and Walden and to the comments made by the plaintiff to the 000 operator.

Conclusion

  1. [74]
    Upon consideration of all the evidence and the issues referred to above, I am not satisfied to the requisite standard that the plaintiff sustained her injuries as a consequence of her foot becoming wedged between the wooden post and the edge of the concrete pathway or that her foot struck the wooden post and she tripped.
  1. [75]
    Her claim is therefore dismissed.

Duty of care

  1. [76]
    Given my conclusion above, it is not necessary for me to consider this issue.

Damages

  1. [77]
    Notwithstanding my conclusion above, I am nevertheless required to address the question of damages that would have resulted if the plaintiff had been successful in her claim.

General Damages

  1. [78]
    General damages are assessed in accordance with the Civil Liability Regulation 2014 (“the CLR”).
  1. [79]
    The plaintiff claims that her injury falls within Item 135 (moderate lower limb injury) whilst the defendant submits that Item 136 (minor lower limb injury) is more apt, because of the evidence of the plaintiff’s good recovery from her injury. Item 135 has an ISV range of 11-20, which equates to damages of $15,790 – $33,100. Item 136 has an ISV range of 0-10, which equates to damages of nil – $14,000.
  1. [80]
    The CLR indicates that an ISV at or near the top of the range of Item 135 will be appropriate if the injured person is left with impaired mobility or a defective gait. The latest reports show an absence of lasting impaired mobility and an absence of any defective gait.
  1. [81]
    In such circumstances, I am of the view that the plaintiff’s injury falls within Item 136 and that an ISV of 8 is appropriate, equating to $11,040.

Past Economic Loss

  1. [82]
    At the time of the incident, the plaintiff was working three days a week as a registered nurse with Queensland Health. She underwent surgery on 19 September 2012 and thereafter was unable to walk without crutches or artificial assistance until 24 January 2013, after which time she was cleared for a graduated return to work.
  1. [83]
    In her Further Further Amended Statement of Claim, the plaintiff was claiming an amount of $45,691 under this head of damage. By the end of the trial, that claim had increased to $141,559.15.
  1. [84]
    The plaintiff indicates that she returned to normal duties on or around 26 July 2013. Her claim assumes that from early 2014 she would have been working four weekly shifts of eight hours and then five weekly shifts from 2015. The defendant does not accept that the plaintiff would have worked to this level irrespective of her injury.
  1. [85]
    The plaintiff has disclosed tax returns which indicate that she had net earnings for the 2009-2013 financial years as follows:

Financial year

Net earnings

2009

$49,030.00

2010

$27,196.00

2011

$38,714.00

2012

$49,977.00

2013

$11,497.51

  1. [86]
    In the financial year which ended immediately prior to the subject incident, the plaintiff earned $49,977 net, which equates to $961.10 net per week. The defendant submitted that the claim that should be allowed is 22 weeks (being 17 September 2012 to 24 January 2013 and 27 May 2013 to 14 June 2013) at the rate that she was paid for the previous financial year. Upon the evidence before this court, that is an appropriate model to adopt.
  1. [87]
    Conducting that mathematical exercise, the plaintiff would have been allowed the sum of $21,144.20 under this head of damage.
  1. [88]
    Interest at 2 percent for three years is calculated to be $1,268.65.

Past Loss of Superannuation

  1. [89]
    Past loss of superannuation at 9.25 percent would be $1,955.84.

Future Economic Loss

  1. [90]
    In her Further Further Amended Statement of Claim,[43]the plaintiff claimed the amount of $273,650 under this head of damage. By the end of the trial that amount had increased to $584,085.43.[44]The plaintiff submits that that amount assumes full-time employment as a clinical nurse consultant until age 67 but does not take into account any promotion beyond the level of clinical nurse consultant which was contended would have taken place by 1 April 2016.
  1. [91]
    Of course, the opinions of Dr Ganko and Dr Morgan are highly relevant to the issue of determining the plaintiff’s future earning capacity. In Dr Morgan’s view the plaintiff will be unable to work full-time as a registered nurse again. I note, however, that since 2013 she has regularly worked her shifts on three consecutive days – sometimes accompanied by overtime.[45]On other weeks she has worked three shifts, although not consecutively. Her complaint seems to be that she is no longer able to complete overtime nursing work and additional eight hour shifts beyond the three that she usually performs each week.
  1. [92]
    However, there is no evidence before the court demonstrating that she consistently performed overtime prior to the incident or that she worked more than she does now. No doubt the birth of her daughter in 2009 caused her to take some time off at around that time – although there is no evidence as to the period of time.
  1. [93]
    The care of her daughter is nevertheless a continuing demand on her time.
  1. [94]
    Whilst Dr Morgan was originally of the view that the plaintiff would not be expected to return to full-time nursing in a clinical setting, he does not suggest that the plaintiff will be unable to perform more sedentary tasks. In fact he noted that her current regime of working three eight hour shifts per week is a reasonable compromise. He did note however that the plaintiff is obese and would benefit most from a dramatic reduction in weight.
  1. [95]
    In Dr Ganko’s view, the plaintiff will suffer minor interruptions to her working life, but may struggle with “heavy work”. He is of the view that she will be able to continue in her normal employment as a nurse.
  1. [96]
    No evidence has been led suggesting that the plaintiff’s employment is at risk of termination as a result of her injuries. The evidence also shows that she has a sympathetic and accommodating employer who provided her with the opportunity to perform less demanding triage work when she required it.
  1. [97]
    In his report of 5 May 2014, Dr Ganko said:

“I do not think she will have an incapacity from employment. She is back at her normal employment working three days a week at the current time although doing less clinical duties. I expect over time, her ability to spend time on her feet will improve. Whilst the sensory change and paraesthesia in her foot, which is possibly due to damage to the nerve either from the fracture or the tibial nail or locking screws, will persist, the dysesthesia may lesson over time. I expect her swelling will reduce over time given it is of a somewhat variable and non-fixed nature.

On that basis I expect she will continue in her normal employment. I expect she will get back to ambulatory employment as a nurse in the emergency department as she has already begun to do. She may have some limitation if she had to do heavy work, especially if it required squatting, kneeling, climbing or recurrent lifting although this may also improve, although not certainly, after the treatment outlined above.” 

  1. [98]
    The defendant has submitted that the plaintiff has not made out her claim for future economic loss and nil dollars should be awarded.
  1. [99]
    In that regard the defendant relies particularly on the opinion of Dr Ganko, as well as the fact that the plaintiff’s net income has increased since the financial year commencing July 2013 as follows:

Financial year

Net earnings

2014

$56,371.00

2015

$56,022.00

2016

$57,145.00

2017 to date

$33,216.11

  1. [100]
    When compared to her income for the years ending 30 June 2009, 10, 11 and 12, these figures are not indicative of financial loss.
  1. [101]
    The plaintiff’s position seems to be, however, that her intention was to return to full-time five shifts per week employment when her daughter commenced school or soon thereafter. Her daughter commenced prep school in 2014 yet no evidence is before the court showing that the plaintiff has sought additional shifts beyond the standard three eight hour shifts she performs each week, notwithstanding the apparent availability to her of more sedentary work activities.
  1. [102]
    The fact that the plaintiff can complete three eight hour clinical shifts each week is quite at odds with Dr Morgan’s initial opinion, whilst being quite consistent with the opinion of Dr Ganko. In the circumstances I prefer Dr Ganko’s opinion which is suggestive of no future economic loss.
  1. [103]
    In his report of 5 May 2014, Dr Ganko also said:

“I expect her swelling will reduce over time given it is of a somewhat variable and non-fixed nature.

…

I believe that she will be able to continue in her employment as a registered nurse, which she has done for the last 20 years and for which she holds appropriate qualifications. I do not think that she will have any restrictions in her normal employment.”

  1. [104]
    As I have said, Dr Morgan’s view is that the plaintiff will be unable to work full time as a registered nurse again, despite the fact that she has been working up to three eight hour shifts each week, plus overtime, since 2013. At times, she has done this on consecutive days. The plaintiff’s complaint seems to be that she is no longer able to do additional nursing shifts nor additional overtime. No evidence was called however, demonstrating that she consistently performed overtime or that she worked more than she is currently working prior to the park incident.
  1. [105]
    Furthermore, there was no suggestion on the evidence that if the plaintiff wants more work it will not be offered to her, including the less physically taxing triage work.
  1. [106]
    The plaintiff also has the competing demand of caring for a young child and has certain limitations on capacities due to her weight (as recognised by both doctors). Additionally she has a supportive employer and a demonstrably good work history since the incident.
  1. [107]
    For these reasons I am not satisfied that the plaintiff has established to the requisite standard that she will suffer future economic loss due to her injuries and even if liability had been established I would have awarded $nil.

Past and Future Gratuitous Services

  1. [108]
    The plaintiff has abandoned her claims under these heads of damage.

Special Damages

  1. [109]
    The amount of special damages was agreed between the parties at $18,723.95, with interest of $612.60.
  1. [110]
    I will hear the parties as to costs.

Footnotes

[1]  Exhibits 1-14.

[2]  Exhibit 28; (Although it is admitted at paragraph [7] of the Defence that the plaintiff contacted the defendant on 11 June 2013).

[3]  Exhibit 15.

[4]  Court document no. 16 filed 23 March 2017.

[5]  See Amended Defence, para 4(d).

[6]  Paragraph 6(b) of Amended Defence.

[7]  Defence, para 7.

[8]  Defence, para 9.

[9]  Exhibit 16.

[10]  Court document no. 1, para 5(d).

[11]  Court documents no. 6, para 5(d) and 7, para 5(d).

[12]  Exhibits 1-14.

[13]  Transcript, pp 1-67, ll 31-32.

[14]  Transcript, pp 1-29, L 24.

[15]  Transcript pp 1-29, L 24-26.

[16]  Transcript, pp 1-45, ll 4-9.

[17]  Transcript, pp 1-29, L 45.

[18]  Transcript, pp 1-46, ll 40-45; pp 1-47, ll 35-40; pp 1-48, ll 12-15.

[19]  Transcript, pp 1-47, L 15.

[20]  Transcript, pp 1-48, L 38.

[21]  Exhibit 24.

[22]  Transcript, pp 2-28, L 30; pp 2-29, ll 1-3.

[23]  Transcript, pp 2-43, ll 19-33.

[24]  Exhibit 25.

[25]  Exhibit 19.

[26]  Exhibit 18.

[27]  Transcript, pp 1-57, L 40 to pp 1-58, L 5.

[28]  Exhibit 21.

[29]  Transcript, pp 2-14, ll 1-6.

[30]  Transcript, pp 2-14, ll 6 and 7.

[31]  Transcript, pp 2-4, ll 42-45; pp 2-6, ll 14 and 15; pp 2-8, L 40; pp 2-9, ll 24, 25 and 40.

[32]  Report of Dr Ganko dated 5 May 2014, para 1.2 (Exhibit 21); Transcript, pp 2-7, L 7.

[33]  Transcript, pp 2-82, ll 20-30.

[34]  Paragraph 4 of report of Dr Lock dated 29 January 2016 (Exhibit 29).

[35]  Exhibit 20.

[36]  Transcript, pp 1-95, ll 27-36.

[37]  Transcript, pp 1-87, L 5.

[38]  Exhibit 22, para 13.

[39]  Exhibit 22, para 14.

[40]  Transcript, pp 2-56, ll 9 and 18.

[41]  Transcript, pp 1-23, ll 3 and 4; pp 1-46, ll 40-45.

[42]  [2013] QSC 106.

[43]  Court document no. 16.

[44]  Exhibit 32.

[45]  Exhibit 17.

Close

Editorial Notes

  • Published Case Name:

    Helen Louise McAllister v Brisbane City Council

  • Shortened Case Name:

    McAllister v Brisbane City Council

  • MNC:

    [2017] QDC 94

  • Court:

    QDC

  • Judge(s):

    Farr DCJ

  • Date:

    04 May 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Kelly v State of Queensland [2013] QSC 106
2 citations
Jump To
Cite 1 - [2013] QSC 106
Cite 2 - [2013] QSC 106

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.