Apex Holiday Centre (Inc) v Lynn
[2005] WASCA 58
•31 MARCH 2005
APEX HOLIDAY CENTRE (INC) -v- LYNN [2005] WASCA 58
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 58 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:127/2003 | 5 OCTOBER 2004 | |
| Coram: | WHEELER J EM HEENAN J SIMMONDS J | 31/03/05 | |
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed in part | ||
| B | |||
| PDF Version |
| Parties: | APEX HOLIDAY CENTRE (INC) DAWN ROSEANNE LYNN |
Catchwords: | Tort Occupier's liability Scope of duty owed by voluntary organisation providing budget holiday accommodation Injury from falling down steps in dark Whether negligence from lack of a landing and external lighting Contributory negligence Damages for pain and suffering |
Legislation: | Occupiers Liability Act 1985 (WA) |
Case References: | Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 Australian Capital Territory v Badcock (2000) 169 ALR 585 Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 Cekan v Haines (1990) 21 NSWLR 296 Chapman v Hearse (1961) 106 CLR 112 Cran v State of New South Wales [2004] NSWCA 92; (2004) A Tort Rep 81-737 Cubillo v Commonwealth of Australia (2000) 103 FCR 1; (2000) 174 ALR 97 Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258 Frost v Woolworths Ltd (2000) 144 ACTR 19 Gamser v Nominal Defendant (1977) 136 CLR 145 Geroheev Pty Ltd v Wheare [2004] WASCA 206 Gondoline Pty Ltd v Hanford [2002] WASCA 214 Humberdross v Rapp [1991] 1 Qd R 353 Jamborvic v Australian Capital Territory Health Authority (1992) 108 FLR 8 Jones v Bartlett (2000) 205 CLR 166 Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729 Mahony v J Kruscich (Demolitions) Pty Ltd (1985) 156 CLR 522 McLean v Tedman (1984) 155 CLR 306 Mobilio v Balliotis [1998] 3 VR 833 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 Oliviera v The State of New South Wales, unreported; SCt of NSW (Spender AJ); No 10607 of 1990; 3 July 1995 P Q v Australian Red Cross Society [1992] 1 VR 19 Pene v Murphy [2004] WASCA 103 Pennington v Norris (1956) 96 CLR 10 Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492 Reed v Fleming [2001] WASCA 424 Richmond Valley Council v Standing [2002] NSWCA 343 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997 State of New South Wales v Napier [2002] NSWCA 402 Struthers v Harris [1983] WAR 123 Sungravure v Meani (1964) 110 CLR 24 Watson v George (1953) 89 CLR 409 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Wilson v Peisley (1975) 7 ALR 571 Wyong Shire Council v Shirt (1980) 146 CLR 40 Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Jones v Dunke (1959) 101 CLR 298 Lawson v Charles Hull Contracting Pty Ltd (1997) 20 SR (WA) 175 Stannus v Graham (1994) A Tort Rep 81-293 Temore Shire Council v Stein [2004] NSWCA 236 Uzebega v Town of Cottesloe [2004] A Tort Rep 81-739 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : APEX HOLIDAY CENTRE (INC) -v- LYNN [2005] WASCA 58 CORAM : WHEELER J
- EM HEENAN J
SIMMONDS J
- Appellant (Defendant)
AND
DAWN ROSEANNE LYNN
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER GILES
Citation : LYNN v APEX HOLIDAY CENTRE (INC) [2003] WADC 169
File No : CIV 896 of 2001
(Page 2)
Catchwords:
Tort - Occupier's liability - Scope of duty owed by voluntary organisation providing budget holiday accommodation - Injury from falling down steps in dark - Whether negligence from lack of a landing and external lighting - Contributory negligence - Damages for pain and suffering
Legislation:
Occupiers Liability Act 1985 (WA)
Result:
Appeal allowed in part
Category: B
Representation:
Counsel:
Appellant (Defendant) : Mr P E Jarman
Respondent (Plaintiff) : Mr B G Bradley
Solicitors:
Appellant (Defendant) : Jarman McKenna
Respondent (Plaintiff) : Bradley & Bayly
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Australian Capital Territory v Badcock (2000) 169 ALR 585
Calder v Boyne Smelters Ltd [1991] 1 Qd R 325
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Cekan v Haines (1990) 21 NSWLR 296
Chapman v Hearse (1961) 106 CLR 112
Cran v State of New South Wales [2004] NSWCA 92; (2004) A Tort Rep 81-737
Cubillo v Commonwealth of Australia (2000) 103 FCR 1; (2000) 174 ALR 97
Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258
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Frost v Woolworths Ltd (2000) 144 ACTR 19
Gamser v Nominal Defendant (1977) 136 CLR 145
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Gondoline Pty Ltd v Hanford [2002] WASCA 214
Humberdross v Rapp [1991] 1 Qd R 353
Jamborvic v Australian Capital Territory Health Authority (1992) 108 FLR 8
Jones v Bartlett (2000) 205 CLR 166
Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729
Mahony v J Kruscich (Demolitions) Pty Ltd (1985) 156 CLR 522
McLean v Tedman (1984) 155 CLR 306
Mobilio v Balliotis [1998] 3 VR 833
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201
Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313
Oliviera v The State of New South Wales, unreported; SCt of NSW (Spender AJ); No 10607 of 1990; 3 July 1995
P Q v Australian Red Cross Society [1992] 1 VR 19
Pene v Murphy [2004] WASCA 103
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492
Reed v Fleming [2001] WASCA 424
Richmond Valley Council v Standing [2002] NSWCA 343
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997
State of New South Wales v Napier [2002] NSWCA 402
Struthers v Harris [1983] WAR 123
Sungravure v Meani (1964) 110 CLR 24
Watson v George (1953) 89 CLR 409
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wilson v Peisley (1975) 7 ALR 571
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
Jones v Dunke (1959) 101 CLR 298
Lawson v Charles Hull Contracting Pty Ltd (1997) 20 SR (WA) 175
Stannus v Graham (1994) A Tort Rep 81-293
(Page 4)
Temore Shire Council v Stein [2004] NSWCA 236
Uzebega v Town of Cottesloe [2004] A Tort Rep 81-739
(Page 5)
1 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Simmonds and Heenan JJ. I am in agreement with the conclusions of Simmonds J, generally for the reasons which his Honour gives, and in addition I am in agreement with the reasons of Heenan J, to the extent that they deal with the sum awarded by the learned Commissioner in respect of pain and suffering. However, I wish to make certain additional comments, largely directed to the appellant's concern that the dismissing of the appeal will result in an unacceptable burden being placed upon bodies such as the appellant, with the unfortunate result, so far as the general public is concerned, that there will be a diminution in the services offered by such bodies. In my view, that should not be the case. The present matter involves very particular factual circumstances, for reasons which I explain briefly below.
2 During the course of the appeal, the appellant stressed the "basic" nature of the accommodation provided, its inexpensive nature, and the fact that an examination of the whole of the premises would have revealed a "multitude" of potential risks. Those potential risks were, as I understood them, primarily risks resulting from unevenness of surfaces which might give rise to a risk of tripping or falling. I accept that the fact that the accommodation was very cheap, and of a simple nature, was relevant to the sorts of risks against which the appellant had a duty to guard. There are plainly risks inherent in a simple bush camp which one would not expect in a luxury hotel, and visitors voluntarily assume those risks. This accommodation was more than a "bush camp", but it was rather primitive, and that fact is relevant.
3 As Simmonds J explains, however, it appears that the learned Commissioner did take account of the basic nature of the facilities, which she described.
4 The Commissioner also recognised the importance of considering the potential cost of removing the risk posed by the steps, in considering whether the appellant's duty to take reasonable care for the safety of the respondent would have included works relating to those steps. The appellant submits that she ought not to have found that it was reasonably practicable to obviate the risk to the respondent by installing a light when there was no evidence led in relation to the cost of such an exercise. It seems to me, however, that it was not unreasonable for the Commissioner to take the view that, as a matter of ordinary experience, at a campsite already supplied with electricity, the cost of supplying lighting to a part of the premises was unlikely to be very great. She was particularly entitled to reach that view in the present case, where the evidence showed that the
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- appellant had undertaken works which included the provision of lighting; indeed, it had carried out an upgrading project of the camp which included a good deal more.
5 So far as the "multitude" of potential other risks are concerned, I would not read the reasons of the learned Commissioner as suggesting that the duty of the appellant included the removal of all risks of falling which might be posed to a person moving about the premises. It is important to recall three matters. First, the appellant's campsite was designed in such a way that much of the accommodation was provided separately from the ablution facilities, with the result that it would be necessary for visitors to move from one to the other, including doing so at night. Second, the risk posed in this case was not merely a risk of falling while walking across the ground; rather, it was a risk of falling from a height. The height was not insignificant, being described in exhibit 6 as a height of 76 centimetres between door level and ground. That difference in level both increased the risk of falling at all, as compared with walking over ground, and increased the likelihood that injury of a more than trivial nature might be caused as a result of the fall. Finally, while, as the Commissioner noted, steps are always both inherently and "obviously" dangerous, the circumstance that no light was provided very greatly reduced the respondent's ability to take reasonable care for her own safety in using the steps.
6 I do not read the reasons of the learned Commissioner as suggesting that it was necessary for the appellant to provide both a landing and steps. In my view, the reasons, taken as a whole, suggest that the provision of a light alone would have been sufficient or, if the appellant for some reason was unable to or did not wish to provide a light, then the provision of a landing would have significantly reduced the risk.
7 Because it is of relevance to the comment I wish to make in relation to contributory negligence, I should record my concern about the findings made by the learned Commissioner in respect of the lighting. She observed at [79], obviously correctly, that it was difficult for the Court to make a judgment on the basis of the available evidence about the visibility of the steps at the relevant time. However, over the course of considerable discussion of the evidence, it seems to me that she neither indicated which witness' evidence she accepted, nor decided to reject the evidence of all of the witnesses. Rather, at [85], she observed that the evidence, considered as a whole, was "rather unsatisfactory" and found that there was "some dull light on the steps". Her Honour's reference to the accounts of Mr Andrijasevich and Ms Norrish at that point suggests
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- that she was accepting their evidence. The former said that when he was approaching the steps from the outside, they were "quite dark but if you sort of looked hard enough you could see the outline of the steps, to go inside anyway", while the latter simply said that they were "poorly lit". At the next paragraph, the learned Commissioner found that it was not "completely dark", but that there was "some dull light illuminating the steps". From all this, it appears to me that the relevant finding was that, although the light was not such as to make the steps clearly visible, a person looking carefully at the steps would have been able to discern their outline.
8 So far as contributory negligence is concerned, I would observe that I would have been inclined to have attributed a larger part of the responsibility for the accident to the respondent, than did the learned Commissioner. Only one of the variety of factors listed by the appellant influences me in that view. I would not have expected the respondent necessarily to recall the nature of the steps, even though she had been at the camp previously and although she had used the steps on the day in question a very few times. Nor would I regard her decision not to turn on the internal light in the hut, while perhaps unwise, as being such a disregard for her own safety as to constitute negligence.
9 However, as the learned Commissioner observed at par [122], knowing that she was in unfamiliar surroundings, and obviously knowing that it was dark, and knowing that there were steps, the respondent stepped "trustingly out into the darkness". It seems to me that where a person is moving around in unfamiliar surroundings in darkness, that is a very basic failure to take care for the person's own safety. Every adult person is, or should be, aware that there are risks involved in moving around unfamiliar surroundings in darkness. It is often the case that the surroundings are not accurately recalled, both because they are unfamiliar and because a person who has just awakened may be somewhat disoriented and sleepy. Even in the much less primitive surroundings of an hotel room, a person moving about in darkness runs a risk of walking into forgotten furniture or perhaps slipping or tripping on some other object.
10 In the present case, the respondent knew that there were steps. She must have known that she was not familiar with their exact dimensions, and that there was an obvious risk of falling if she misjudged, for example, the distance between one tread and the next. Even if there had been a landing, as at one point in her evidence the respondent said she had
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expected there would be, it could have been uneven, or might have had on it debris or material left by other occupants of the hut.
11 In those circumstances, a person in the position of the respondent taking reasonable care for her own safety should have taken either or both of two simple precautions. The first would have been to pause briefly, and look carefully to ascertain how much of the steps she was able to see. On the findings of the learned Commissioner in this case, she may well have been able to discern enough of the outline to avoid a fall. Alternatively, she could have taken the course which she had apparently adopted in picking her way across the darkened floor of the hut; that is, she could have moved her foot very carefully forward until it had found a firm surface upon which to rest. The failure to take either of these courses was, in my view, much more than temporary inadvertence, but was a disregard of the most basic rules of prudence.
12 It may be, as it seems to me the learned Commissioner thought, that one reason for the respondent's failure to take these basic precautions was that she had consumed more alcohol than she was accustomed to consume during the course of the evening. The amount consumed, while not extravagant, was not insignificant for a woman of average build who was unaccustomed to drinking much. However, it appears to me that the reason for the respondent failing to take either of these courses is not important. What is important is that she did fail to take such precautions.
13 However, as Simmonds J points out, the authorities are to the effect that there is a very wide discretion allowed to a trial Judge in determining what would constitute a just and equitable apportionment. There is nothing in the learned Commissioner's reasons to suggest that she made any error of principle in the way she went about the task of apportionment. Further, it is of course the case, as the Commissioner noted, that had there been a light, none of the precautions suggested as necessary for the respondent to take for her own safety would have been required. In those circumstances, I am not of the view that the apportionment was "plainly wrong", and I would not disturb it.
14 EM HEENAN J: Three issues arise for determination upon the hearing of this appeal and cross-appeal from the decision of her Honour Commissioner Giles given in the District Court of Western Australia on 8 August 2003 finding the appellant liable to the respondent in damages in the amount of $121,000. They are: Was there negligence by the appellant as found by the learned trial Judge? Was there contributory negligence by
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the respondent and if so to what degree? Were the damages allowed excessive to a degree which justifies alteration on appeal?
15 The action before the District Court concerned liability for injuries which the respondent had suffered when falling down some steps outside Unit 12 at the Apex Holiday Centre, Point Peron, during the early hours of Sunday 23 April 2000. The respondent had been staying with members of her extended family at an annual reunion of the Norrish family attended by some 100 to 120 people at the appellant's premises at Point Peron over Easter. In the fall down the steps the respondent suffered a fracture of the left femur, a hairline fracture of the left elbow, a left wrist injury and mild effusion of the left knee. The fracture of the left femur led to the development of avascular necrosis, which initially went undiagnosed, and then required removal of the necrotic area of bone and the installation of an artificial hip and femur. The respondent has been left with a variety of disabilities, including shortening of the left leg but, most significantly, will probably have to undergo revision of the hip replacement, including replacement of the artificial joint, every 10 to 12 years during her remaining lifetime.
16 At the trial, and on the appeal and cross-appeal, the issues of controversy were whether or not the appellant was negligent as alleged, whether the respondent was contributorily negligent and whether or not the award of damages, including as it did a component of $100,000 for general damages, was erroneous by being so disproportionately excessive as to amount to an error in the proper exercise of the discretionary assessment of the respondent's damages.
17 The learned Commissioner, as already indicated, found that the appellant had been negligent and also that the respondent had been contributorily negligent. This led to the respondent's damages being reduced by a factor of 30 per cent by apportionment for the contributory negligence. The assessment of the respondent's damages, before apportionment, was $172,946 made up as follows:
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18 After reduction for apportionment by 30 per cent and rounded off, this resulted in the judgment of $121,000.00.
The Appeal and the Cross Appeal
19 The appellant challenges the finding of negligence and submits that it was not in breach of any duty of care and that the respondent's action should have been dismissed. Alternatively, the appellant contends that a greater degree of contributory negligence should have been found against the respondent and that damages should, in that eventuality, have been reduced by a factor of 70 per cent. The appellant also contends that the amount in the pre-apportionment assessment which provided for pain and suffering and loss of amenities at $100,000 was excessively high and that no more than $50,000 should have been allowed under this heading. Accordingly, the appellant submits that, if the finding of negligence is affirmed, the judgment should be so reduced in the light of the finding of contributory negligence made by the learned Commissioner or to the greater extent submitted by the appellant on this appeal. The respondent cross-appeals against the finding of contributory negligence and submits that there should have been no such finding and that the appellant is entitled to judgment in the amount assessed by the learned Commissioner before apportionment, namely $172,946.
Appellant's Liability for Negligence
20 The principal submission for the appellant was that there had been no breach of its duty of care towards the respondent as a paying visitor to the camp because, although the steps were old, had no landing, involved a large drop of 22 centimetres (8 inches) from the interior floor level to the level of the tread of the top step, and were poorly lit, this did not amount to a lack of reasonable care having regard to the general basic level of accommodation at the holiday camp, the cheap rates charged for use of the premises and the limited financial resources of the appellant which
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- operated as a charitable organisation. This was amplified by the submission that the Point Peron Holiday Camp had been used by generations of West Australians stretching back over 50 or 60 years and that the same basic level of accommodation was a feature of its entire operations and was part of the "iconic heritage" of social life in the State.
21 It was accepted that the duty owed by the appellant to the respondent was the duty arising under the Occupier's Liability Act 1985 although no suggestion was made that this was in any material sense different from the liability arising at common law. It also seems to have been assumed that the same level of care was owed to the respondent as a contractual visitor – Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33, although no attention appears to have been given to the recognition that the latter status can involve a higher standard of care. That decision is authority for the proposition that if an occupier of premises agrees for reward to allow a person to enter the premises for some purpose the occupier impliedly warrants that the premises are as safe for that purpose as reasonable skill and care can make them: Watson v George (1953) 89 CLR 409.
22 The proposition that the standard of care due by the appellant to the respondent in the circumstances of this camp, with its basic level of accommodation and limited budget, was less than that found by the learned Commissioner confronts the established proposition that limited financial resources do not offer an excuse for failing to meet the requisite standard, P Q v Australian Red Cross Society [1992] 1 VR 19. Some exceptions to this approach have been (according to Fleming, "The Law of Torts" 9th ed, 1998, at 132) "countenanced only regarding liability to trespassers and for conditions of natural origin threatening injury to neighbours. Both situations where a duty to act is exceptionally 'thrust' upon a defendant – compare Stobin v Wise [1996] AC 923 at 933 and 944". In (1992) 108 LQR 9 Fleming wrote that this question had also arisen in relation to the liability of public authorities which did not control their own budget and that one approach is to make some allowance for budgetary constraints whereas another is to distinguish between the mandatory activities of such an authority as contrasted with their voluntary activities – Cekan v Haines (1990) 21 NSWLR 296 at 314.
23 Cekan v Haines (supra) has prompted considerable academic writing and analysis about the extent of liability by a public authority as occupier: see Dugdale, "Public Authority Liability: To What Standard?" (1994) 2 Tort Law Rev 143 and the following cases: Cran v State of New South Wales [2004] NSWCA 92; (2004) A Tort Rep 81-737; State of
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- New South Wales v Napier [2002] NSWCA 402; Frost v Woolworths Ltd (2000) 144 ACTR 19; Cubillo v Commonwealth of Australia (2000) 103 FCR 1; (2000) 174 ALR 97; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313; Oliviera v The State of New South Wales, unreported; SCt of NSW (Spender AJ); No 10607 of 1990; 3 July 1995.
24 For an example of situations in which the cost of measures to take precautions said to be consistent with reasonable care are taken into account, see Australian Capital Territory v Badcock (2000) 169 ALR 585 and Jamborvic v Australian Capital Territory Health Authority (1992) 108 FLR 8 per Higgins J at 12 where his Honour held that the safety of employees must not be subordinated to "penny-pinching budgetary measures". In the present case the learned Commissioner found no great expense would have been involved in eliminating the hazard which caused this accident. Further, the illustrations of the measures adopted since the accident to provide safe access to this unit show how other reasonable and effective measures could readily be taken to eliminate the risk - Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201.
25 I cannot accept the submissions of the appellant in this regard as raising any matter in this case which would diminish or attenuate the standard of care due by the appellant to the respondent. There was no compulsion on the appellant to conduct this operation or to provide the accommodation (unit 12) at which the accident occurred. The premises could, if necessary, had been shut down, that unit could have been closed or the precautions envisaged by the learned Commissioner at trial could have been taken. There was photographic evidence to show that other expedients were readily available to eliminate the danger posed by these steps. I cannot accept that the financial circumstances of the defendant, nor the cheapness of the accommodation could, alone or in combination, produce a situation where the extent of the duty owed by the appellant to the respondent was anything less than an obligation to exercise reasonable care for the safety of the paying visitor.
26 With respect I consider that the learned Commissioner was correct in concluding that the appellant had been negligent on this occasion. The first ground of appeal should be dismissed.
Contributory Negligence
27 The allegations against the respondent that she had been contributorily negligent set out in par 6 of the defence are that she:
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- "(i) exited the cottage in the dark without activating any internal lights;
(ii) failed to use the handrail adjacent to the steps;
(iii) attempted to negotiate the steps when she was under the influence of alcohol or knew or ought to have known that her ability to safely walk down the steps was affected by alcohol
(iv) failed to keep a proper lookout when she knew or ought to have known of the position of and dimensions of the steps."
28 It is acknowledged that the burden of proof of contributory negligence rests upon the appellant and that contributory negligence is different from negligence because there is no legal duty to take care for oneself - see Pennington v Norris (1956) 96 CLR 10.
29 It was established on the evidence that there was an internal light which was not put on by the respondent because she did not wish to disturb the other people who were sleeping in the unit. Furthermore there was no evidence that that light if activated, would have thrown any illumination upon the steps. The photographs show that there was an elementary handrail at waist height on one side of the steps and it was the respondent's evidence that she did not place her hand on that rail before she fell at the time of the accident. There is no suggestion that this was a deliberate omission on her behalf and the inference is open that, in the darkness, she was not aware of the situation of the handrail or had not yet found it.
30 There was no evidence that she was adversely affected by alcohol. She admitted that, on the Saturday night between about 6 pm and after midnight, in the course of the evening festivities which included a barbecue meal for the extended families, she consumed about five to six glasses of white wine and several sips of champagne. This may well be more alcoholic drink than may be wise and may even render one unsafe to drive but there was no evidence the respondent was adversely affected by liquor, was talking too much, was staggering, was behaving in an inebriated fashion before or after the accident although it was noted at that the Rockingham Hospital that she did smell of alcohol on admission. There may be grounds for suspicion that the consumption of alcohol played some part in the events which led to this accident but there is
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- nothing more than conjecture and nothing which amounts to proof where the onus rests upon the appellant.
31 In my view this is a situation in which, rising in the middle of the night to go to the toilet blocks some distance away, the respondent was confronted with a situation of avoiding disturbance to the others sleeping in her unit, so she carefully made her way through the darkened room to the doorway, found this and, largely by feel, opened the door and attempted to descend the steps. In the darkness she missed her footing on what were, plainly, steep, old and dangerous steps. In doing this she simply succumbed to the trap which was posed by this dangerous condition and this does not, in my view, amount to contributory negligence: see Sungravure v Meani (1964) 110 CLR 24; Podrebersek v Australian Iron and Steel (1985) 59 ALJR 492; McLean v Tedman (1984) 155 CLR 306 and Pennington v Norris (supra).
32 Accordingly I would dismiss the appellant's second ground of appeal by which it sought to argue that a greater reduction in the appellant's damages should be made because of the alleged contributory negligence. As I consider that no contributory negligence was established in this situation I would allow the respondent's cross-appeal and vary the judgment of the learned Commissioner by setting aside the finding of contributory negligence and the apportionment of damages made on that account.
Allowance for General Damages
33 The test to be adopted in determining whether or not an award for damages for personal injuries should be set aside or varied on the grounds that the damages awarded are unduly excessive or inadequate has been stated on many occasions. It requires the appellant to demonstrate that there has been an error in the discretionary exercise of the assessment of damages either on some express ground arising from the evidence emerging at the trial which should have been accepted or rejected by the learned trial Judge or from the reasons for decision or because of some implicit error which can be inferred from the disproportion of the award of damages in itself – per Barwick CJ in Wilson v Peisley (1975) 7 ALR 571 and Ipp J in State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA; Library No 970089; 11 March 1997; citing Calder v Boyne Smelters Ltd [1991] 1 Qd R 325 per Cooper J at 346, see also Gamser v Nominal Defendant (1977) 136 CLR 145 per Gibbs J at 148. Only if an ultimate error in the overall assessment is thus revealed
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- should there be any variation on an appeal, see per Burt CJ in Struthers v Harris [1983] WAR 123 at 124.
34 This is a case in which the appellant contends that the disproportionate award of damages is evident from the magnitude of the allowance for the subheading of damages for pain and suffering alone.
35 It does not necessarily follow that because there may be a demonstrated error in one heading or component of an overall award of damages that the overall assessment is therefore wrong and may be varied on appeal. As was said by Burt CJ in Struthers v Harris (supra) at 124:
"But when that is done a revealed error in the calculation leading to the assessment of the pre-trial loss of earning capacity does not necessarily mean that the total assessment of a claim for loss of earning capacity which was sustained when the injuries were received was erroneous. Still less does it necessarily follow that the global assessment of general damages was erroneous. And that must be the question for this Court decide and it can only be answered by this Court looking at the global award and forming its own judgment as to whether or not it is a reasonable assessment what is just and fair compensation for the personal injuries received."
- As I observed in Pene v Murphy [2004] WASCA 103 at [39] this is a long established principle and reflects the possibility that there may be other counterbalancing considerations in the process of calculation of the final judgment or that there is a countervailing proportionality in the judgment as a whole which, although not the subject of direct explanation in the reasons for judgment, means that the final figure awarded is within the range of a reasonable discretion for the award of damages in the particular case - see also Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 per Barwick CJ at 329; and Calder v Boyne Smelters Ltd (supra) per Cooper J at 346.
36 In the present case it is notable that by its notice of appeal the appellant confines its challenge to the alleged excessive nature of the component of $100,000 damages for pain and suffering without contending that the overall assessment of damages (whether before or after apportionment) was wrong or so excessive as to connote disproportion of such an extent that would warrant a variation on appeal. Now that it is the practice and the requirement of Judges to conduct an assessment of damages for personal injuries by identifying different heads of damages and allocating allowances under the various heads in order to
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- show how an ultimate award of damages has been reached, there are some areas where it is possible for an appeal court to undertake a greater degree of scrutiny of an allowance for an individual head of damages.
37 It is now accepted that in relation to the assessment of damages under certain heads there can be greater precision than in others. For example, in many cases the calculation of past loss of earning capacity; special damages; or the cost of future medical care may admit of greater precision, and therefore greater appellate scrutiny, than the allowances for other less precise headings of damages, such as pain and suffering and loss of amenity (whether past or future), and the possible need for an allowance for eventual long-term future care: see Mobilio v Balliotis [1998] 3 VR 833 CA per Brooking JA at 840 - 842. Errors in the former category can be more readily isolated and more readily corrected on appeal: Lai Wee Lian v Singapore Bus Service (1978) Ltd [1984] AC 729 PC. By contrast, allowances for headings of damages which are necessarily less capable of precise estimation have a broader and therefore more discretionary dimension and are less susceptible to variation on appeal.
38 The appellant's challenge to the award of damages in this case involves a challenge to an allocation of damages under a heading where substantial discretion has always been recognised as reposing in the trial Judge and, where because of that, the principle of examining the effect of any alleged error in the assessment process upon the final global award of damages becomes even more important. If taken too far, this distinction between the various headings of damages could lead to inconsistent approaches being taken to the review of those allowances as distinct from the final award on appeal. For this reason, there may be seen a readiness by courts in recent times to allow correction of an error found in a single heading of damages only if that correction is likely to make a substantial difference to the total sum awarded: Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258 and Humberdross v Rapp [1991] 1 Qd R 353.
39 In the present case where the challenge to the quantum of damages is based on an alleged error in assessing one single heading of damages, and that heading being the least susceptible of precise estimation, considerable restraint must be exercised so that proper regard is paid to the advantages which the learned trial Judge undoubtedly had in seeing and hearing the plaintiff and in estimating the actual and probable effects of her injuries upon her personally.
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40 Nevertheless, in the present case, an award of $100,000 for general damages appears to me to be beyond the scope of a sound discretionary judgment and to make out this ground of appeal – Wilson v Peisley (supra) and Gamser v Nominal Independent (supra). True it is that the respondent has suffered a serious injury, has endured complications which may not have occurred had it not been for the delay in correct diagnosis and subsequent treatment and that none of this diminishes the liability of the appellant – see Chapman v Hearse (1961) 106 CLR 112 and Mahony v J Kruscich (Demolitions) Pty Ltd (1985) 156 CLR 522. The situation however, is that the respondent who was a woman in good health, at the age of 45 years, has undergone major surgery, has had an artificial hip implanted, is subject to future long term medical supervision with major surgery at 10 year intervals and now faces significant limitations upon her work and recreational capacities. On the occasions when she does require surgical revision she is likely to be in hospital for a week or so and then will need to convalesce off work for up to three months and undergo significant discomfit, handicap and inconvenience. In my view an appropriate allowance for general damages in these circumstances would have been $75,000. I would, therefore, allow the appeal to this extent by reducing the respondent's damages before apportionment, by the sum of $25,000 to the amount of $147,946.
41 However, as I would allow the cross appeal against the finding of contributory negligence I would not reduce that revised assessment on the grounds of apportionment. It follows, in my opinion, that the appeal should be allowed to the extent of reducing the damages before assessment but that the cross appeal should also be allowed and that the judgment of the learned Commissioner should be varied by increasing it to the sum of $147,946.
SIMMONDS J:
Introduction
42 This is an appeal from a judgment of the District Court awarding damages for pain and suffering as well as economic and other forms of loss suffered by the respondent, the plaintiff below, when she fell as she exited from a hut at the appellant's holiday camp at night. She had missed the stairs leading from the hut to the ground. The basis for the claim for damages was in negligence at common law as well as under the Occupiers Liability Act 1985 (WA). Commissioner Giles found the basis for liability was the negligent failure to provide exterior lighting for the hut or a
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landing at the top of its stairs. The learned Commissioner also found that, while carelessness by the plaintiff was not totally or largely the cause of the accident, she had failed to take reasonable care for her own safety, and 30 per cent of the liability for the accident was apportioned to her.
43 The grounds for the appeal were as to the finding of negligence, the extent of the apportionment of the liability for the accident to the respondent, and the award of general damages for pain and suffering.
44 The respondent cross-appealed against the finding of contributory negligence and, in the alternative, the extent of the apportionment to the respondent.
45 I deal first with the events that gave rise to the claim below, and then with the appeal and the cross-appeal.
The Facts
46 The appellant is an incorporated association. It was formed to operate the Apex Holiday Centre, a holiday camp at Point Peron, south of Perth. The appellant's committee at the material time was made up of representatives of Apex Australia, which is a community service club, as well as members of the Civilian Widows Association. The committee members were volunteers. The appellant's only employees were a husband and wife as caretakers.
47 The Apex Holiday Centre is located close to the beach at Point Peron, on land leased by the appellant from a department of the State Government at a peppercorn rental. The camp is described by the learned Commissioner as follows ([8] – [9]):
"The camp is principally used by sporting, charitable, disabled, and children's groups and schools. It is fully booked out on most weekends and sometimes mid-week by school excursions. The defendant charges $7 a night for adults and less for children. Admission for pre-schoolers is free. I gather the philosophy behind the camp has been to provide extremely inexpensive holiday accommodation by the sea for all, regardless of their resources, but with particular emphasis on disadvantaged people.
The accommodation provided at the camp is very basic. There are a number of fibro buildings, each containing two or three accommodation units, called 'huts' or 'units' plus a building
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- called 'Windy Cottage', which is the only one with cooking and washing facilities. All of the other units simply contain bunk beds and a few basic items of furniture. There is an ablution block, a food hall and a playground situated within the grounds of the camp. While there was no evidence as to when the buildings were constructed, it was agreed that they are some decades old."
48 The accident occurred at 1.30 am on Easter Sunday morning, 23 April 2000, when the respondent was 45 years old. She is a member of the Norrish family, which is a large one, from the wheatbelt of Western Australia. At the time of the accident the plaintiff lived in Perth. That Easter the entire camp had been booked for the fifth annual Norrish family reunion, which the respondent attended with her then boyfriend, and with her two adult daughters and a grandson. She had been to the camp on two or three previous occasions for Norrish family reunions.
49 The particular hut occupied by the respondent and her boyfriend on the night in question, and from which she fell, was Unit 12. It adjoined Unit 11, and these two are the closest huts in the camp to Windy Cottage. The respondent had occupied Unit 12 on one of her previous stays at the camp.
50 On the evening of 19 April 2000, the respondent had been participating with her boyfriend in a party in and around the food hall for the camp. For the first part of the evening, until about 9.30 pm, she had been looking after her grandson. After he had been put to bed, the respondent continued to enjoy the party until just before midnight. Over the course of the party, she consumed five or six glasses of wine and a small amount of champagne drunk from a bottle passed around as a toast. Just before midnight the respondent with her boyfriend returned from the party to Unit 12. The interior light in Unit 12 was on. The respondent switched off the light, and both she and her boyfriend went to bed. She occupied the lower bunk, he the upper bunk. There were other beds in Unit 12, which were then unoccupied, although earlier in the day there had been signs, when the respondent and her boyfriend had entered Unit 12 and placed their belongings on their bunks, that at least two others had been claimed.
51 About one and one-half to two hours later, between 1.30 am and 2.00 am on 20 April 2000, the respondent awakened, needing to go to the toilet. Unit 12 had no toilet facilities. To reach such facilities elsewhere in the camp occupants of Unit 12 had to leave by the steps that led up
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- from the ground to the door to the hut. At the time of the accident there were three wooden steps, with a drop from the door threshold to the first step of 22 centimetres. There was no landing. Nor was a light immediately outside the hut to illuminate the steps or the approach to Unit 12. There was an interior light in Unit 12, with a switch located above the respondent's bunk, but no switch near the door. The respondent did not turn on the interior light because of her wish not to disturb the other occupants, including any who had returned after her and her boyfriend. Unit 12 was in darkness.
52 To leave Unit 12, the respondent had to open a flywire door, whose handle was on her right. The door opened outwards. Once past the door, there was a railing leading down to her right. In the darkness, she could see the silhouette of the flywire door, but not its handle, and she initially tried to open it from the left. Having found the handle on the right, she opened the door, and stepped out. However, she had that forgotten there was no landing and that the steps were steep, and she fell to the ground. She suffered injuries that led to her admission to Rockingham Hospital overnight. She was later diagnosed with more serious injuries than had been first thought. I will return below to those injuries.
53 I turn now to the grounds of appeal.
Grounds of Appeal 1 and 2: Negligence
54 These grounds focused on the matters of the place in the learned Commissioner's reasoning said to be occupied by the lack of an exterior light and of a landing for Unit 12, and by what was said to be her failure to have adequate regard to the state of the camp and the range of risks it posed. As I will explain, these grounds are intertwined.
55 The grounds were:
"1. The learned trial judge erred in law in finding that there was a reasonably practicable method of obviating the risk of the Respondent (Plaintiff) falling down the steps by providing a landing or installing a light when:
a. there was no evidence led in relation to the cost and reasonableness of providing a landing; and
b. there was no evidence led in relation to the cost of installing a light which the learned trial judge assumed was a small expense.
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- 2. The learned judge erred in law in focussing on the landing and the light above without reference to the state of the whole premises and multitude of risks which may have posed a foreseeable risk of injury."
56 The learned Commissioner heavily relied upon her conclusions as to the provision of an exterior light and of a landing in her determination that the appellant had been negligent. She said at [110] – [113]:
"I recognise that the resources of a voluntary organisation are principally the unpaid labour of volunteers. It is important to recognise the actual opportunity cost to the organisation of undertaking these works as opposed to others. Even taking this into account, the cost of installing a light globe would have been minimal. That must be compared with the extent of the risk, which in my view was considerable. I think the defendant ought to have provided adequate outside lighting to unit 12. It did not do so, and this failure resulted in the accident and Ms Lynn's injuries.
The lack of a landing also in my view played a part in the accident. Even without adequate lighting, the existence of a landing would have reduced the risk of an accident. That is because there was quite a long drop of about 22 centimetres between the floor of the unit and the first step.
While the plaintiff conceded that she stepped onto something she could not see, the state of lighting being what it was meant that this was always going to be the case. She expected a landing, as we tend to do, having obviously forgotten her experience of using the steps twice the day before. She was disoriented because she was in unusual surroundings, had an urgent need to go to the toilet, and was very concerned not to wake the other occupants. With all of these matters preying on her mind, she relied on her usual experience of the construction of steps and landings. Put another way, had there been a landing, with or without lighting, the accident is unlikely to have occurred. Had there been adequate lighting on the steps but no landing, the accident is even less likely, but there would still have been some danger.
I think it is reasonable to expect the defendant in all the circumstances to have installed both a landing and an external
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- light. But either a light or a landing would probably have prevented the accident."
57 The grounds of appeal originally included a ground 3, that there was no evidence that the respondent would have used any exterior light had one been provided. However, this ground was not pursued before us.
58 Before us there was some exchange between the parties as to the learned Commissioner's conclusion on her review of the evidence that at the time of her fall it was not "completely dark" outside the hut. Rather there was "dull light illuminating the steps" the result of "some natural light" as well as "lights from other cottages, the ablution block and the food hall, which remained on all night" ([86]). However, this dull lighting was "insufficient" ([115]) to satisfy the "reasonable expectation" of "adequate lighting to permit a person to safely leave the units at night" ([104]). While the adequacy of the exterior lighting on the night in question was not squarely raised by the grounds of appeal, no objection was taken by the respondent to the matter being dealt with.
59 It suffices for me to say that the findings as to the presence of dull lighting as opposed to no light, and its adequacy, appear to me be amply supported by evidence to which the learned Commissioner's review refers: see especially at [85]. Whether the expectation as to adequacy was reasonable, however, goes to the matter raised by ground 2, and I return to it in that context below.
60 The relevance of the learned Commissioner's determinations as to the provision of an exterior light and a landing to a finding of negligence is evident from the frequently cited passage from Wyong Shire Council v Shirt (1980) 146 CLR 40, 47 - 48 per Mason J: see Gondoline Pty Ltd v Hanford [2002] WASCA 214, at [51], per Miller J, Wheeler J agreeing. In Wyong Shire Council, his Honour considered the inquiry that the tribunal of fact must undertake once it has determined a reasonable person in the position of the defendant would have foreseen a risk of injury to the plaintiff or a class of persons including the plaintiff. This inquiry is as to the reasonable person's response to that risk:
"The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these things are balanced out that the tribunal of fact
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- can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
61 The learned Commissioner proceeded on the basis that no distinction should be drawn for this purpose between the two bases for claim in this case, breach of the Occupiers Liability Act (see s 5) and the common law, and the correctness of that approach was not questioned before us (see also Geroheev Pty Ltd v Wheare [2004] WASCA 206, at [51], per McLure J, Roberts-Smith J agreeing).
62 We were not directed to any evidence on the cost of an exterior light or of a landing. The learned Commissioner did appear to indicate that she considered the measure of the cost of an exterior light was that of a globe ([110], above), although we were not directed to any evidence that indicated provision of an exterior light could simply involve the installation of a globe. The learned Commissioner did not provide any indication of the cost she presumably assigned to a landing for the purposes of her determination that it would have been reasonable to expect the defendant to install both a landing and an exterior light ([113], above). That manner of dealing with the matter indicates to me that she was relating the costs she was using to the risks they addressed, as is called for by Wyong Shire Council (supra).
63 I note in that connection that there was an indication in the evidence that the appellant was, at or about the relevant time, in a position to address the matter of the exit from Unit 12 through the installation of an exterior light and a landing or equivalent. Further, this evidence showed that the matter was in fact addressed, and, as the learned Commissioner found, this was done in part at least to improve safety. While this evidence was of a more expensive solution than the cost of a globe, it did, it seems to me, go to the cost of the light and the landing in the balancing process called for by Wyong Shire Council. That balancing process, in my view, forms the basis of ground 2 of the appeal, and the evidence in question is best considered in relation to that ground.
64 In relation to ground 2, the importance of a consideration of the whole camp, heavy reliance was placed on Jones v Bartlett (2000) 205 CLR 166. It appears we were being referred, as the learned Commissioner was referred, to the discussion by Gleeson CJ of the finding of negligence as to the lessor's failure to have an adequate inspection of rented premises that would have revealed the danger represented by a glass door liable to break as a result of a heavy collision.
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- That condition would only be recognised by an expert. His Honour (at [15] – [19]) saw the error in the concentration on the door where that door was an ordinary one, constructed in accordance with then prevailing building standards, there for 30 years without causing any harm, and for which no reason to give it special attention was apparent. In this case, the appellant pointed out there was no evidence the Unit 12 arrangements were not in accordance with building standards at the time of its construction, and there was no evidence of any other accidents over the time those arrangements had been in place.
65 These matters had been put to the learned Commissioner, who responded to them as follows ([114]):
"The defendant submitted that in considering the standard of care, one must consider that standard in relation to the entire camp, not only the steps. It points to remarks by Gleeson CJ in Jones v Bartlett (supra) at [15] about the danger in focusing solely on the accident. If there is a duty to provide adequate lighting over the steps to the unit, that duty applies throughout the camp. It would be unduly onerous, says the defendant to require it to inspect and rectify 'the multitude of potential risks, given the age and condition of the premises, which could give rise to a foreseeable risk of injury'. This rather overstates the question in my view. Furthermore, the defendant did in fact inspect the steps prior to the accident and decided to install a light and to remodel the stairs. This was not a particularly onerous process but one undertaken as part of a cycle of maintenance."
66 It was not put to us that the learned Commissioner's determination, evident in this passage, that there were many other risks of equivalent or greater seriousness in the camp was unsupported by the evidence. Her reference to the inspection of the steps prior to the accident and the decision to install a light and remodel the stairs (by replacing the steps with a ramp, to service both Units 11 and 12) was to an upgrading project for the camp that included more than those works.
67 On the evidence of the chairperson of the appellant, that upgrading project was the result of a determination of its board in January 2000 to "start putting new paths and steps in the camp" (AB 186). It was part of a series of "upgrades" done over the "last few years" (AB 190). Work on this upgrading project began in mid-2000. It included the replacement, by June 2000, of the sets of steps to both Unit 12 and the adjoining Unit 11
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- with a ramp to a landing at the threshold to Unit 12, and a step up to a landing at the threshold of Unit 12. That is, to exit from Unit 12 after the upgrade one stepped on to a landing, and then followed a ramp down. This led to a footpath forming part of a network of new footpaths whose installation was also an aspect of the 2000 upgrading project (AB 192).
68 The 2000 upgrading project also included the installation of an outside fluorescent light above the door to Unit 12. This installation, which involved rewiring, was part of the introduction of new power points and lights across the entire camp, another aspect of the project (AB 193).
69 On the evidence of the appellant's chairperson the project's completion was made possible by the donation of electrical material used in the lighting for Units 11 and 12 (AB 193), and volunteer labour (AB 186).
70 The learned Commissioner concluded, on reviewing this evidence that the changes in the lighting and the access, made after the accident but, on her assessment of the evidence, without knowledge of it, were to improve safety. There was no suggestion before us that this conclusion was unsupported by the evidence.
71 I am of the view, with the learned Commissioner ([66]), that this concern with safety was not itself evidence of negligence. However, also with her, I am of the view that the identification of Unit 12 for the work and its completion indicated distinguish this case from Jones (supra). Further, together with her conclusion on the relative position of the risks from the exit to Unit 12 in the array of risks posed by the camp, that identification and completion could and did appropriately play a significant part in her determination of the standard of response to the risks from Unit 12 from a reasonable person in the appellant's position, as called for by Wyong Shire Council.
72 Before us the appellant laid considerable emphasis on the position of the appellant, by reference to the character of the facility it ran as a camp, which it said should have been given greater weight in the learned Commissioner's determination of what a visitor could reasonably expect. The contrast was with much more elaborate arrangements, such as those for city hotels. The appellant also laid emphasis on the voluntary character of its organisation, which sharply limited what and when it could address matters of camp upgrades.
73 I note that both matters were also addressed to the learned Commissioner, who dealt with them as follows ([96], [99] and [104]):
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- "The defendant also points to recent authority to the effect that the duty owed by an occupier depends very much on the context. The nature of the Apex Holiday Camp, being a bush camp by the sea, with it all the quaintness and charm of rough accommodation, lessens the standard of care owed to those staying at the camp. Visitors stay at the camp expecting basic accommodation, and in fact seek that out on many occasions. The huts do not have ablution facilities. There are only communal eating facilities (except for Windy Cottage). Most of the time is to be spent outdoors. It is really to all intents and purposes a camp, albeit with buildings on it.
…
It would not be reasonable to expect the same standards at a five star hotel as those available at the camp (Gondoline Pty Ltd v Hansford [2002] WADC [sic WASCA] 214 at [58] per Miller J). A reasonable person would know of the need to proceed with caution, because of her or his unfamiliarity with the steps and the basic nature of the accommodation. However, this consideration is not weighty enough to tip the scales of negligence totally in favour of the defendant.
…
I have considered carefully the arguments by the defendant, drawn from the judgments of the High Court in Jones v Bartlett (2000) 205 CLR 166 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, about the standard of care owed by defendants responsible for the provision of premises, and public reserves. I understand the dicta in these cases to require a close examination of the actual circumstances surrounding the accident, and of the reasonable expectations of people using the premises concerning the measures to be taken by the occupier for their safety. I am of the view that the provision of adequate lighting to permit a person to safely leave the units at night is a reasonable expectation to have of a voluntary organisation providing low-cost accommodation such as the camp."
74 In Gondoline (supra) Miller J distinguished from his case the reasonable expectations of a pedestrian using a city pathway, particularly where complaints about it had been made to the relevant authority in his
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- case. His case involved a "well-laid pathway" to and from a car park and the shops conducted on the Lavender & Berry Farm near Pemberton in this State's south-west ([58]). Although there was a finding of an unevenness from a raised paver in the latter pathway which caused the plaintiff her injuries, that aspect was not "a hazard or a trap" ([59]). Another decision concerning an unevenness in a pathway, Richmond Valley Council v Standing [2002] NSWCA 343, stressed the importance of recognising that the reasonable expectations of pedestrians did not include that the pathway, in that case in a "built environment" but far from the "stairways and concourses" of the city of Sydney ([47]), would be smooth. Stress was also laid on the fact that the unevenness in question was "obvious", involving "no concealment", "inadequacy of lighting", or "obscuring of the hazard by grass or otherwise": at [54] per Heydon JA, Handley and Sheller JJA agreeing.
75 It is also clear that, as the learned Commissioner herself noted at ([101]), while steps are "inherently, but obviously dangerous", and many measures might be taken to make them "as safe as human skill could possibly make them", nonetheless "the duty is only to take care which is reasonable under the circumstances" (Wilkinson v Law Courts Ltd [2001] NSWCA 196, at [32], per Heydon JA, Meagher and Rolfe JJA agreeing).
76 The learned Commissioner in my view correctly applied this law when she identified as the "relevant circumstances" determining the scope of the standard of care in this case the following at ([102]):
"(i) the rough, basic nature of the accommodation, and the low tariff;
(ii) the lack of toilet facilities in unit 12 and the need therefore for the steps to be used at night;
(iii) the small expense of providing adequate lighting as compared to the risk of danger to the plaintiff;
(iv) the gravity and probability of an injury arising from the use of the steps at night."
77 I have already commented on the matter of the expense of providing adequate lighting, above, in connection with the upgrading of the exit from Unit 12. That upgrading also answers, in part, the matter of the voluntary character of the appellant as an organisation. That character did not prevent it identifying the need for and undertaking the work in question. It is only a partial answer, however, as it does not address the
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- appellant's argument that insufficient account had been taken by the learned Commissioner of the fact this was a particularly onerous undertaking for a voluntary organisation.
78 The appellant's argument sought to analogise its position to that of a public authority providing the facilities of a public recreational reserve. However, it is not clear to me, from the authority cited both to the learned Commissioner and to us, Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, that the approach to the balancing process for the purposes of determining the standard of response for the reasonable person in the appellant's position is different for such an authority from that described in Wyong Shire Council (supra). Indeed, that case itself involved a public authority. That approach allows for consideration of the "conflicting responsibilities" faced by a defendant, as is recognised in Romeo, at [128] - [130], per Kirby J, which his Honour there indicates may be of particular relevance when the defendant is a public authority discharging its statutory responsibilities. Without determining whether or not the same is true of a voluntary organisation like the appellant, in respect of its responses to the risks in the camp, there is nothing in those authorities which supports giving determinative weight to the outcome of that management process. As I have indicated, the learned Commissioner considered it as part of her determination of what visitors could reasonably expect of the facilities of Unit 12.
79 Further, it is clear that the lack of financial capacity of an appellant to respond to the standard determined as result of the balancing process I have described is not an answer to liability in negligence in a case like this one: P Q v Australian Red Cross Society [1992] 1 VR 19, 32 - 34, McGarvie J, and authorities there cited.
80 It follows that, while I consider it is not evident that the cost of the exterior light was simply the cost of a globe as the learned Commissioner indicated, I consider there is evidence going to the cost of a light and a landing or equivalent on which the learned Commissioner relied that was properly used to determine the issue of negligence. Thus, I would not uphold grounds of appeal 1 or 2.
Ground of Appeal 4 and the Cross-Appeal: Contributory Negligence
81 The appellant's ground 4, as it was put to us, was that the learned Commissioner's allocation of responsibility for the accident should have been reversed, to 70 per cent for the respondent and 30 per cent for the appellant. This was on the basis of the particulars for this ground, which
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- went to the unreasonableness of the respondent stepping out into the darkness outside Unit 12 (particulars a and h) against the background of three considerations that were developed in more detail in the hearing before us:
• She had been at the camp on three previous occasions, including one in Unit 12, and was aware of the character, as old and basic, of the accommodation it provided (particular b);
• She had used the steps at Unit 12 on three occasions in the period immediately leading up to the accident, and had in fact noted the need to be wary because of the gap between the threshold and the first step, a matter which she was particularly equipped to determine as she had worked as a property manager (particulars e and f); and
• She had made a decision not to use the internal light, out of concern for waking up others, but denying her the light which would have relieved some of the darkness into which she stepped (particulars c, d and g).
• Her conduct in not bearing in mind her previous observations of the steps to Unit 12 was reasonable as she was not familiar with the hut, and had just awakened with an urge to answer a call of nature (particulars (iii) and (iv));
• Her prior consumption of alcohol was moderate and reasonable (particular (ii)); and
• Her failure to turn on the interior light was reasonable in the circumstances given the duration of time she would be away answering the call of nature (particular (i)).
83 The basis for the learned Commissioner's determination that the respondent had been contributorily negligent, and the apportionment that should result, is apparent from the following ([124] – [125]):
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- "I accept the defendant's argument that the plaintiff took less care than was reasonable in all the circumstances, and propose to reduce her award of damages accordingly. In reaching this figure, I am influenced by the plaintiff's consumption of alcohol, and that she had observed the steps were dangerous some hours prior to the accident. I am also influenced by the fact that she failed to switch on the internal light before crossing to the door. I accept she was concerned about the comfort of others, but had she stopped for a moment to consider the situation, her recollection of the steps would have been likely to occur to her. Furthermore, she had a legal duty to take care for her own safety, and not to prefer the comfort of others over that legal duty. It would have been unreasonable of the other occupiers of unit 12 to have begrudged the plaintiff a few moments of disturbed sleep in preference to her placing herself in danger of a devastating accident.
Comparing these issues against the circumstances of the defendant's negligence, I am of the opinion that the defendant's omissions played a much greater role in the accident. This relates both to the extent to which the defendant departed from the reasonable standard of care and the relative importance of each of their acts in causing the damage (Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529)."
84 The respondent in submitting that there was no contributory negligence laid heavy emphasis on the learned Commissioner's unchallenged findings that she knowingly stepped out into darkness relying "on her usual experience of the construction of steps and landings", having "forgotten her experience of using the steps twice [in fact, three times] the day before". This came about as "she was disoriented because she was in unusual surroundings, had an urgent need to go to the toilet, and was very concerned not to wake the other occupants" ([112]). We were referred to McLean v Tedman (1984) 155 CLR 306, 315 - 316, per Mason, Wilson, Brennan and Dawson JJ, which is also referred to in Podrebersek(supra), per 531, Gibbs CJ, Mason, Wilson, Brennan and Deane JJ, where the Court notes the distinction between "some temporary inadvertence, some inattention or some taking of a risk, 'excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man'", and contributory negligence (McLean).
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85 It seems to me, however, that the learned Commissioner correctly determined that there was contributory negligence in this case. In terms of the matters on which she placed emphasis, the respondent put to us that there was no evidence she had been influenced by alcohol so as to suggest her alertness as a reasonable person was impaired or her balance leaving the hut affected. The respondent had rejected suggestions that when she got up to go to the toilet she was affected in any way by alcohol (AB 129). However, she had admitted that she was "not really a drinker", and confirmed as a rule she did not drink "very much" (AB 101). The learned Commissioner concluded that the respondent had consumed most of this alcohol after her grandson whom she had been looking after up until that time had been put to bed, at about 9.00 pm, notwithstanding the respondent's testimony that she had consumed most of the alcohol before that time ([87]), an inference that appears to me to be one open on the evidence. The learned Commissioner had also referred to the respondent being "a woman of average height and build who was unaccustomed to drinking much", from which she inferred "that the wine and champagne probably was still affecting her at the time of the accident to an appreciable, but not major degree". There does indeed appear to me to be a sufficient foundation in the evidence for this determination.
86 It also seems to me that whether or not consumption with that effect was "moderate or reasonable", as the respondent contended, it was open to the learned Commissioner to find it was a reason why the respondent made the decision she did, notwithstanding her assessment the previous day of the risk posed by the lack of a landing and the steps, not to put on the interior light and to step out as she had into the conditions she then faced.
87 There was no challenge to the learned Commissioner's finding that the respondent had "noticed that the steps were steep and had no landing, and that 'you had to be wary walking up and down those steps'" ([21]). That finding appears to draw particularly on a part of the respondent's examination-in-chief (AB 65), and of her cross-examination (AB 118). That evidence refers to her experience as a property manager and her noticing the condition of the steps and the absence of a landing on the afternoon before the accident when she and her boyfriend had entered the cottage to deposit their belongings. In her cross-examination immediately after the passage which the learned Commissioner quoted there was the following exchange (AB 118): "You had to be very wary?---Yes".
88 Nor was it unreasonable for the learned Commissioner to find that, had the respondent been looking more carefully in the dull light to which I
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- earlier referred, she would have seen the steps, including the absence of a landing. It was also open to the learned Commissioner to find that the absence of a landing, at least, would more likely have presented itself to her had she switched on the interior light, which was in the central part of the room, the location to which her boyfriend had testified (AB 139). In those circumstances, the decision to put on the interior light was one representing a taking of a risk which could be found to be not the taking of a risk, "excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man" (McLean, (supra), at 531). This is whether or not the having the interior light on for the time it would take for her to use the toilet facilities might have involved, for any one else in Unit 12, more than the "few moments of disturbed sleep" ([124]) the learned Commissioner referred to. The time involved would at most have been relatively short.
89 It was put to us that her boyfriend had in fact testified that the illumination of the steps was not affected by the interior light because of what he had noticed when earlier in the evening he had returned to Unit 12 to pick up a jumper and return to the party. However, his evidence was that he did not know whether or not the interior light was on either then or when he and the respondent returned to Unit 12 together to sleep (examination-in-chief, AB 138; cross-examination, AB 146), although the respondent testified that it was on (AB 121). Further, it seems me that there is a difference between whether the interior light would have shown the absence of a landing for a person stepping out of the unit, and whether that light would have shown the steps when one was approaching the hut, as to which there was testimony from the respondent that the interior light did not enable her to see the steps clearly, as it did not shine down on them (AB 121).
90 The bases for my conclusion as to the respondent's contributory negligence and in relation to the negligence of the appellant go some distance towards disposing of the matter of the reasonableness of the apportionment for contributory negligence at which the learned Commissioner arrived. The standard for review of such determinations is that referred to in Reed v Fleming [2001] WASCA 424, at [52], per Olssen AUJ, Steytler and Hasluck JJ agreeing:
"It is also salutary to commence a review of the competing arguments as to apportionment of liability by recalling what fell from the High Court in Watt V Bretag (1982) 56 ALJR 760 at 761. The majority there made the point that the apportionment legislation 'gives a very wide discretion, and
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- much latitude must be allowed to a trial Judge in deciding what is just and equitable (Pennington v Norris (1956) 96 CLR 10 at 15 - 16). It is only in exceptional circumstances that it is right for an Appellate Court to interfere with a trial Judge's apportionment'. Reference was made to what had been said in A V Jennings Construction Pty Ltd v Maumill (1956) 30 ALJR 100 at 101 and British Fame (Owners) v Macgregor (Owners) [1943] AC 197 at 198 - 199. Similar sentiments were echoed in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529 at 532 and have consistently been applied ever since. This Court is only justified in interfering with an apportionment if it is satisfied that any apportionment of liability made at trial was plainly wrong."
91 It seems to me that there was a basis in the findings the learned Commissioner made to distinguish between the parties in the terms that, as she indicated ([125]), have been referred to, in Podrebersek (supra), at 532, as determinative for this purpose:
" … their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42–49 and Broadhurst v Millman [1976] VR 208 at 219."
92 That basis lay in the unreasonable failure to remedy the conditions in which the respondent suffered her injuries, relative to her inattention to her own safety when attempting to use the facilities the appellant had provided, an inattention which would likely have been harmless had those conditions been attended to in one or more of the ways the learned Commissioner referred to. That basis provided justification for the learned Commissioner's determination that "the defendant's omissions played a much greater role in the accident" ([126]).
93 Thus, I do not find an apportionment of liability as to 70 per cent to the appellant and 30 per cent to the respondent to be "plainly wrong" (Reed (supra)), and so I would not uphold ground of appeal 4, or any of the grounds for the cross-appeal.
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Ground of Appeal 5: The award for pain and suffering
94 This ground was:
"The learned trial judge was wrong in law and in fact in awarding the Respondent an amount of $100,000 for pain and suffering given that it was outside the scope of a reasonable award."
95 There was no suggestion that the learned Commissioner had acted on an error of law, but rather it was submitted that by reason of a misapprehension as to the facts or an erroneous estimate of the damage suffered she had arrived at a figure beyond the range of the exercise of "a sound discretion" (Wilson v Peisley (1975) 7 ALR 571, 575 per Barwick CJ).
96 The learned Commissioner assessed an amount for general damages for pain and suffering of $100,000 ([128] – [134]), as part of her total assessment of $172,946, which she reduced by 30 per cent for the respondent's contributory negligence to $121,062, which she rounded down to $121,000 ([151] – [152]). The appellant put to us that a figure of $50,000 should be substituted for the $100,000 component, which would reduce the overall award from $121,000 to $86,000, a reduction of $35,000. Counsel for the respondent in his written submissions conceded that the award for "general damages" was towards the "upper end of the range" but contended it was not "disproportionately high".
97 As a result of the accident the respondent was admitted to hospital from which she was discharged in the morning, after an overnight stay. However, she continued to suffer considerable pain, and her general practitioner had her x-rayed. The x-rays revealed a hairline fracture of her elbow and a fracture of the neck of the femur of her left leg. Soon thereafter, on 27 April 2000, she underwent surgery at another hospital with a pin and a plate being inserted in her femur. The learned Commissioner found her elbow was treated "conservatively" ([35]). She "continued to be in extreme pain, particularly in her left leg" ([36]). She did not return to work until 3 October 2000, when "despite her continuing pain" she joined a new employer, in a full-time position. She was on crutches until January 2001.
98 However, although her elbow pain had by January 2001 cleared up, she continued to experience pain in her left leg, and in August 2001 she saw an orthopaedic surgeon who diagnosed avascular necrosis in the left neck of the femur that had received the pin and the plate, and had her
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- cease work immediately. On 29 August 2001 she underwent surgery to receive an artificial hip joint. She was 13 days in hospital thereafter until she was discharged on crutches, on which she remained until February 2002. She returned to part-time work, with a new employer, in late November 2001, and in early January 2002 increased her hours to full-time. At the date of trial she was still working full-time with that employer, at a higher rate of pay than she was receiving from another employer immediately before the accident.
99 The respondent continued throughout to suffer pain and some disability, the proper findings as to the extent and pattern of which were a matter of dispute before us.
100 The appellant put to us that the learned Commissioner had overstated the period of time until she resumed work after her first operation, by two months in respect of the first operation, when in the part of her judgment where she set out the basis for her assessment of damages for pain and suffering she stated it was about eight months ([130]), although she set out the correct period, by beginning and end dates, elsewhere in her judgment ([37] and [135]).
101 Although no point was made of this before us, there was also a conflict within the judgment as to when she returned to full-time work after the second operation. The learned Commissioner stated it was 7 February 2002 in the part of her judgment concerned with the calculation of economic loss (see [135](iii)), but elsewhere gave the date of 7 January 2002 ([41]), which was the date to which the respondent testified (AB 85).
102 There was a similar problem with the period of time over which the learned Commissioner said the respondent was on crutches: in the part of her judgment where she set out the basis for her assessment of damages for pain and suffering she stated it was a total of 16 months, presumably made up of the periods after her discharge from hospital following her two operations ([128]). However, elsewhere in her judgment the two periods are given with beginning and end dates that yield no more than nine months ([36]) after the first operation, and no more than six months after the second ([40]). The appellant did not stress this discrepancy, however.
103 Rather counsel's written submissions referred us to the extent of her use of crutches in the first period, of nine months, as indicated in the following passage from her examination-in-chief (AB 77):
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- "How long did you use the crutches for?---I was on the crutches right up until January that year 2000. Sometimes around home I'd do away with them, depending what else I was doing, or I'd use one crutch, depending on how tired I was, but when I went out I always used the two crutches, when I went out, for my own protection. It was sore. It was sore, so I was using the crutches, you know, mainly one crutch, and I came off them around about the end of January, the crutches."
104 This evidence was the subject of some expansion, particularly as to the year in which the end of January fell, in the immediately following examination-in-chief (AB 78):
"As the months went by - and you said you used the crutches though till January 2001?---Yes.
THE COMMISSIONER: I actually made - I made a note the witness said January 2000.
BRADLEY, MR: Sorry?---Sorry, it is 2001. The answer was 2000, yes, sorry, your Honour, but I still used the crutches out in public, you know, if I went down to the shops, that sort of thing, or even in my local shops I always use the crutches for my protection.
What became of the left elbow pain that you had?---That healed up after a while. It took a little while. I had to - because I had aggravated a wrist injury to an old netball - basketball - I used to wear a thing on my wrist, a support bandage, because with the crutches it was aggravating that, but once I went onto the arm crutches, or the hand crutches, it didn't seem as bad as what the under-arm crutches, with the weight bearing. So it slowly became better and it's all right now, yes."
105 However, in my view these matters of the resumption of her work and the progressive reduction in the use of crutches need to be put in the context of the other evidence as to the respondent's pain and suffering and associated disabilities on which the learned Commissioner relied. That evidence was of pain that was considerable in the period after the accident, including unchallenged evidence of a period of increasing pain after October 2000 when she had resumed full-time work (AB 78C, AB 79B). This prevented her reaching "down low", and necessitated help with housework from family members (AB 80). The impact on her pre-
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- accident gardening, walking on the beach and entertaining was "a lot" (AB 81).
106 Counsel for the appellant directed us, however, to evidence of her more recent condition. In particular, we were directed to her examination-in chief as to her pain since her hip replacement in August 2001 (AB 85):
"Right. Now what has become of the pain in your left leg since the surgery for the hip replacement?---It's good now to what it was like. I still have a bit of pain. Sometimes the leg feels heavy. Like, now, my leg gets agitated after sitting so long. It's certainly agitated now. I have trouble walking up and down stairs. I have days where it's tired and days where it's good and days where sort of like - it aches through the joints and I believe it's because have been cut twice within 6, 7 months."
107 We were asked to conclude that this indicated pain had effectively ceased. However, the passage indicates to me that the improvement the respondent is describing is a relative one only. In addition, she is facing the prospect of further surgery to replace the hip, if sometime into the future.
108 We were also directed to her cross-examination as to the transition to her current capabilities (AB 87):
"Mrs Lynn, so far as your every day activities are concerned now, what restrictions do you have now - do you feel now on performance of duties around the home?---Well, the majority of the things I am doing now and I feel as though I am getting - as time goes on, I am getting better and more capable. There, for a long time, I would do a few things and I would quite tired so I do things in small doses, you know, like, whether it be clean the pool, bit of the gardening or the housework, everything done with small doses whereas now I feel as though I am slowly getting better at it and being able to do things a little bit longer and I don't ache. That was my biggest thing after I do certain things I would ache. I still have a little bit of trouble getting down into cupboards, bottom of cupboards, or bending down picking stuff off the floor because the nature of the way I have to bend now. You know, it's not a straight over - bending over to pick something up. I have got to actually hold on to
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- something while I go down to the floor. There's a certain way I have got to move so I don't dislocate the hip."
109 Later in the same examination in chief, she says (AB 88):
"I've got to stay out of the ocean because that's too rough, which I used to love the beach; I love the beach and go to the beach which - yes, that's sort of which beside the way now. Other than that, that's the main things, just to be protective, I think, and his main thing is I could have two hip replacements in my lifetime because of my age. He says I've got to protect it."
110 We were asked to conclude that she had become more capable of doing the majority of the tasks around the home and was getting better and more capable as time went on. This does indeed emerge from this material. At the same time, however, there are clear indications of limits to what the respondent will be able to do into the foreseeable future, limits that are of considerable significance to her because of what she had been used to doing, limits arising out of a need to be protective of her hip, a need which gives her some concern.
111 We were further directed to evidence from her orthopaedic surgeon when he was asked in examination-in-chief (AB 174):
"This case I think it would be true to say that the procedure went well, that you have monitored her over the time since the operation and is it the case she's achieved a good result?---I believe so, yes."
112 We were asked to conclude from this that her resultant condition was not of the order of seriousness that might properly have caused the learned Commissioner to award damages for pain and suffering at the level she did. However, it seems to me that this material, read with the other material to which I have referred, is consistent with a history of significant pain that has recently abated but not disappeared, and that may well recur, at least following the expected hip replacement procedures.
113 As to those procedures, counsel for the appellant directed us to the examination-in-chief of the respondent's orthopaedic surgeon. This was that she would likely have to undergo a further hip replacement, likely in 10 to 12 years, when she would be between 57 and 60 years old. Subsequently, she would likely have to undergo a further one, after a somewhat shorter period (AB 175). Both would involve a stay in hospital
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- of "10 to 14 days" and a period off work "for a number of months", which in cross-examination he put at "approximately three months" (AB 177).
114 In my view this evidence supports the determination of the learned Commissioner ([129]) that:
"She suffered a good deal of pain over that two-year period. She is still in some pain. She can expect two more replacements of her artificial hip, requiring hospitalisation, surgery and recuperation. This would be a daunting prospect for anyone. It will become even more daunting as the plaintiff grows older."
115 In particular, it seems to me to be appropriate for the learned Commissioner to have taken account of the age of the respondent when measuring the impact of the recuperation of period from the replacement of her hip. That period was in any event one which, notwithstanding the submission to the contrary for the appellant, appears to me to be a "lengthy" one, as the learned Commissioner found ([133]).
116 Further, this evidence supports (except as to the periods referred to) her further view ([130]) that:
"The plaintiff commenced working again about eight months after her first operation and three months after her second operation, on both occasions while still on crutches. However I gained the strong impression that these early returns to work were driven by economic necessity, and a determination to be self-supporting rather than evidence that her pain was not as severe as she claimed."
117 And this evidence also supports the learned Commissioner's view that ([132]):
"Her mobility, ability to go about her daily activities and her social and recreational activities have been significantly curtailed."
118 The learned Commissioner also took account of the impact on the respondent of the scarring she received as a result of the surgery she had undergone. The learned Commissioner said (at [131]):
"She will bear the scars of her surgery for the rest of her life. While not obvious while dressed conservatively, the scarring is
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- severe, restricts the plaintiff's choice of dress, and clearly affects her self-esteem. She wept in court as she spoke of the effect of the scarring on her life."
119 We were told that there was no evidence the scarring was severe, and we were directed to a November 2002 photograph of the relevant area of the respondent's hip (exhibit 1, AB 297), which appears to show one scar of some length in her hip region crossed about two-thirds of the way down by another. The scarring is noticeable but not especially prominent. However, it seems to me that such scarring is capable of being described as "severe", at least if the remainder of the learned Commissioner's characterisation of it is supported by evidence.
120 Counsel for the appellant submitted to us that the evidence as to the impact of the scarring on her dress was very limited or ambiguous. There was evidence that because of the scarring she had not worn short dresses (AB 88), although it was put to us it was not clear why scarring of the sort shown in the photograph would preclude such dress. There was evidence as to the wearing of pants after the accident which we were invited to conclude was only because of her self-consciousness of her "really bad limp" (AB 89). There was also evidence that she had ceased to wear swimsuits, but that evidence pointed to the reason for this being the intensity of her work, presumably in the sense of it denying her suitable opportunities to do so (AB 88).
121 However, we were not directed to any challenge to the evidence as to short dresses, and it is not clear to me why the scarring might not have been seen by the respondent as the evidence indicates. The evidence as to the pants was consistent with a combination of reasons for wearing them as she did, including the scarring. The evidence as to the swimsuits does indeed appear not to be clearly related to the scarring. However, the first two dress items, as to short dresses and pants, appear to be me to offer sufficient support for the view taken by the learned Commissioner of the impact of scarring on the way the respondent dressed.
122 Counsel for the appellant submitted, however, that there was no evidence by the respondent or any other witness that the scarring had affected her self-esteem. In view of my conclusion on the issue of dress, I have difficulty with this submission. However, I note the following passage from the examination-in-chief of the respondent immediately preceding (AB 88) the commencement of the evidence as to her not wearing short dresses to which I have referred:
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- "Now, before the surgery and the scars, did you wear swimsuits?---Yes.
Do you continue to do so?---Swimsuits, I don't know; I haven't done it for a while because my work has been pretty full-on. Sorry; I'm sorry about this - - -
Why don't you just take a moment, no-one is rushing you?---I'm sorry.
Does the scarring bother you?---Yes, it's horrible. I haven't worn a dress since it happened."
123 It seems to me that this evidence was capable of being understood, as the learned Commissioner appears to have understood it, as indicating the impact of the scarring on the respondent's self-esteem. I need to remind myself of the advantage the learned Commissioner had to observe the manner in which the respondent gave her evidence, particularly at this juncture.
124 In summary, I consider there is sufficient evidence to support the conclusion the learned Commissioner reached on the appropriate magnitude of an award for pain and suffering ([133]):
"All of these matters, including the likelihood of further pain and restriction of movement, and the certainty of further hospitalisation, major surgery on two occasions and the need for lengthy recuperation point to a large award."
125 Whether a large award should be in the order of $100,000 is a different matter. The appellant appeared to take the position, if (contrary to its other submissions) a large award were considered to be justified, that one of $100,000 would be outside the range of the exercise of a sound discretion. This was put on two bases. One was that, while no tariff for hip replacement cases was evident, in the case of back fusion cases awards fell in the range of $50,000 to $80,000, and hip cases were not as severe, even if the surgery in such cases would likely, unlike the back fusion ones, have to be repeated several times for a person of the respondent's age at the time of the accident. The other basis was that the assessment for pain and suffering of $100,000 formed the bulk of the total assessment of $172,946, which was then reduced by 30 per cent for contributory negligence, as I have indicated. An assessment for pain and suffering of that magnitude would be expected to be a part of a much larger overall assessment.
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126 We were not referred to, and I have been unable to find, any authorities on general damages for pain and suffering arising out of an accident that caused the need for a hip replacement operation with a prospect for further ones, but that was not decided within a regime capping damages of that sort, such as Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3C(2). The matter of the assessment of general damages is, as I have indicated, necessarily one of the exercise of judicial discretion, and it is one that does not lend itself to finely graduated calculations. It follows that the fact that I might not, or would not, have assessed these damages at this amount is not determinative. Accepting the range for back fusion cases is as described, I am not convinced either that $80,000 is the top of that range, or that the matter of repeated future operations for hip replacements should not more than compensate for any other differences between the two.
127 Further, the fact that the assessment of general damages forms the largest part of the award does not, it seems to me, of itself indicate that an award of that size is outside the range of the exercise of a sound discretion. The respondent's successful efforts to find and continue in employment notwithstanding what she was suffering at the relevant times was indeed noted by the learned Commissioner, as an aspect of her response to the conditions brought on by the accident ([130]). That is, the learned Commissioner appears, properly in my view, to have seen the respondent's successful efforts to mitigate her other losses in this case as not having a corresponding effect on her pain and suffering.
128 However, the respondent was a woman of 45 in good health and has managed a substantial recovery from the accident and from her first hip replacement surgery. There is no indication other than greater age that this pattern will not repeat itself following subsequent surgery, without diminishing the difficulties she may undergo prior to such surgery, and need for a recuperation from it of the sort I have referred to. She will be subject to future medical supervision that is based now on a better understanding of her condition and that should help her to address its effects, particularly in the period leading up to and following that subsequent surgery.
129 Bearing those matters in mind, in my view, the assessment of $100,000 for pain and suffering was beyond the scope of a sound discretionary judgment. I would re-assess the damages as did E M Heenan J, whose draft judgment I have had the advantage of reading. That is, I would re-assess the general damages for pain and suffering from $100,000 to $75,000, prior to reduction for contributory negligence.
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130 This has the effect on damages overall of reducing them from $121,062 to $103,562. The latter figure is obtained by taking the difference between $172,946 and $25,000, which is itself the difference between $100,000 and $75,000, then reducing the amount so produced by 30 per cent for contributory negligence, and rounding the final amount.
Conclusion
131 It follows I would not uphold any of the grounds of appeal as to liability, or the cross-appeal. However, I would uphold the ground of appeal as to damages, and change the overall assessment accordingly to $103,562.
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