Bark v Tylor
[2005] WADC 59
•5 APRIL 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BARK -v- TYLOR & ANOR [2005] WADC 59
CORAM: SLEIGHT DCJ
HEARD: 24 JANUARY 2005
DELIVERED : 5 APRIL 2005
FILE NO/S: CIV 2369 of 2002
BETWEEN: DARRYL PETER BARK
Plaintiff
AND
NEIL ROBERT TYLOR
MICHELLE TRACEY JEFFREY
Defendants
Catchwords:
Occupiers' Liability Act 1985 - Shed converted to entertainment area - Invitee injured hand on edge of doorway - Liability of owner - Assessment of damages - Preexisting Dupuytren's disease
Legislation:
Occupiers' Liability Act 1985, s 4, s 5
Result:
Defendants liable
Damages assessed
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendants: Mr J G Staude
Solicitors:
Plaintiff: Bradford & Co
Defendants: Corser & Corser
Case(s) referred to in judgment(s):
Hughes v Lord Advocate [1963] AC 837
Jaenke v Hinton (1995) A Tort Rep 81–368
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431
Thomas v O'Shea (1989) A Tort Rep 80–251
Wyong Shire Council v Shirt (1980) 146 CLR 40
Case(s) also cited:
Agar v Hyde (2000) 74 ALJR 1219
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54
Birkholz v R J Gilbertson Pty Ltd (1985) 38 SASR 121
Bowen v Tutte (1990) A Tort Rep 81043
Brodie v Singleton Shire Council; Ghantous v Hawkesbury Shire Council (2001) 206 CLR 512
Chance v Alcoa of Australia Ltd (1990) A Tort Rep 81017
Chapman v Hearse (1961) 106 CLR 112
Pesce v Toms Crane & Plant Hire Co (1993) 9 SR (WA) 64
Commonwealth v McLean (1996) 41 NSWLR 389
Frost v Warner [2002] HCA 1
Hackshaw v Shaw (1984) 155 CLR 614
Harvey v Singer Manufacturing Co Ltd [1960] SC 155
Jones v Bartlett (2002) 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) A Tort Rep 81192
Joslyn v Berryman (2003) 77 ALJR 1233
Keogh v DomUie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995
Lapcevic v Collier [2002] NSWCA 300
Mahoney v Mill Properties Pty Ltd [1981] WAR 152
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Medlin v State Government Insurance Commission (1995) 182 CLR 1
State of New South Wales v Moss (2000) 54 NSWLR 536
Perre v Apand Pty Ltd (1999) 198 CLR 180
Prast v Town of Cottesloe (2000) 22 WAR 474
Purkess v Crittenden (1965) 114 CLR 164
Rosenberg v Percival (2001) 205 CLR 434
Stannus v Graham (1994) A Tort Rep 81293
Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Tonich v Macaw Nominees Pty Ltd, unreported; FCt SCt of WA; Library No 940119; 11 March 1995
Watson v George [1953] 89 CLR 409
Watts v Rake (1960) 108 CLR 158
Westralian Caterers Pty Ltd v Eastmet Ltd (1992) 8 WAR 139
Woods v MultiSport Holdings Pty Ltd (2002) 76 ALJR 483
SLEIGHT DCJ: The plaintiff was born on 6 April 1960. He claims damages for personal injuries alleged to have been suffered on 7 April 2001 when he was attending the premises of the defendants at the invitation of the defendants. The injuries were in the nature of lacerations to the plaintiff's right hand. The accident giving rise to the injury occurred in a shed in the rear of the yard of the defendants' premises. The plaintiff lost his balance at the doorway of the shed and grabbed the frame of the doorway of the shed for support. The plaintiff lacerated his hand on the frame of the doorway.
The defendants deny liability.
The issues
By a statement of claim amended at trial the plaintiff pleads the circumstances of him sustaining injuries and the defendants' liability as follows:
"3.On 7 April 2001, the Plaintiff:
(a)attended the premises as an invitee of the First named Defendant;
(b)was resting his hands on the inside frame of a doorway of a shed at the rear of the premises when he turned and lost his balance on a piece of carpet placed at the front of the doorway.
(c)as he was losing his balance he grasped the frame of the doorway of the shed and lacerated his right hand ('the accident').
4.As a result of the accident, the Plaintiff suffered pain and injury.
PARTICULARS OF PAIN AND INJURY
4.1Right middle finger injury.
4.2Injury to index and little fingers of right hand.
4.3Right ring finger injury.
5.The accident pleaded occurred as a result of the Defendant's negligence and/or breach of the Occupiers' Liability Act 1985 (WA).
PARTICULARS OF DEFENDANT'S BREACH
The Defendant:
5.1failed to warn or advise the Plaintiff of the presence of the sharp door frame at the entrance to the shed;
5.2failed to erect an appropriate guard on the sharp door frame of the shed."
The defendants admit they are the registered proprietors of the premises. They admit that the plaintiff attended the premises as an invitee and whilst on the premises the plaintiff tripped and grasped the doorway of the shed resulting in the lacerations of the plaintiff's hand. Otherwise, the defendants do not admit pars 3 and 4 of the statement of claim and deny par 5 of the statement of claim.
The defendants also plead in their defence that the accident occurred as a result of the plaintiff's negligence. The particulars of negligence are pleaded in par 5 of the defence.
"PARTICULARS OF NEGLIGENCE
The Plaintiff was negligent in that he:
(i)Failed to maintain a proper lookout and watch where he was going.
(ii)Grabbed an exposed metal part of the shed whilst falling when he knew or ought to have known that it involved a risk of cutting his hand."
Background
The plaintiff and the first‑named defendant are workmates and also the plaintiff is married to the first cousin of the first‑named defendant, Mr Tylor. The plaintiff's birthday was on 6 April 2001. The plaintiff was invited to the defendants' house as a guest together with other workmates to celebrate the plaintiff's birthday. There were about six to eight people attending the function. The plaintiff went there at about 7.30 pm.
The "get together" was held in a shed in the rear of the defendants' residential premises. The shed had been modified by Mr Tylor for the purposes of watching cricket or football on television and to entertain friends. The shed was adapted for this purpose by the installation of carpet on the floor, a refrigerator, tables and chairs, a television, a stereo system, a clock, a lounge, a bed and posters were placed around on the walls of the shed. The interior of the shed was painted.
The plaintiff's evidence
The plaintiff stated in his evidence he was standing at the doorway just after midnight waiting for a taxi. All the other guests had left. He stated that while he was standing at the doorway he was resting the palms of his hands on the flat surface of the doorframe surrounding the doorway. He said that he turned to his left and he then described what happened as follows (T26–28):
"Were you inside or outside at the time?‑‑‑I was just in the doorway itself.
In the doorway; neither in nor out?‑‑‑No.
You say you turned around to your left?‑‑‑Yes.
Then what happened?‑‑‑There's a mat on the floor and as I've sort of stepped off the mat it's crumpled up and slipped and as I've lost my balance, I've grabbed hold of the side of the door and – yes.
You grabbed hold of the side of the door?‑‑‑That's right, just to ‑ ‑ ‑
So in other words, did you grip the side of the door?‑‑‑Yes.
Was that with your right hand?‑‑‑It was.
And what happened as a result of gripping that?‑‑‑As I've fallen backwards, it's lacerated the inside of my fingers.
Yes?‑‑‑Yes.
Did you actually fall or not?‑‑‑I didn't – that's a little bit hazy but as I've ‑ as it's happened I've gone down and I've realised what I've done but I've – yes, so I suppose I have fallen; yes.
Yes. What happened to your hand?‑‑‑It – on the edge of the frame it's just sliced it just right on the inside of the knuckles.
Yes?‑‑‑It's just sliced through there. It was just like a – almost like a paper cut."
The doorframe is shown in photographs tendered by the plaintiff (exhibit 1). The doorframe consists of 2 L-shaped metal strips (known as stiles) running vertically on both sides of the doorway.
The plaintiff indicated with a cross on photograph 1 the position where his hand gripped the edge of the doorframe. He indicated the position on the outside edge of the metal stile about two thirds of the way up the vertical side of the stile.
The photographs tendered into evidence show immediately to the right of the edge of the metal frame where the plaintiff lacerated his hand, a stereo player. There is a storage area below the stereo player and there appears to be a number of tapes in the storage area.
Immediately above the stereo player on the wall of the shed is a map of Australia. The map has on it various writings in the margin and photographs which appear to depict people of interest.
Immediately to the left of the doorway is a refrigerator. The door of the refrigerator opens back towards the doorway of the shed and when the door of the refrigerator is open it would partly obstruct the doorway.
On top of the refrigerator is a portable fan which has various control buttons at the base of the fan.
The doorway itself is not very wide. From the tendered photographs it appears to be about the same width as the refrigerator. The doorway leads out to a pathway and the backyard of the defendants' residence.
The photographs also show extension leads running up the right hand side of the doorframe (looking at the doorframe from inside the shed), across the top of the doorframe and then diagonally across the wall to the left of the doorframe to a multiple plug adaptor.
The edge where the plaintiff cut his hand was described by the plaintiff as being about 1.5 millimetres thick. (T28)
Under cross‑examination the plaintiff stated as follows: (T48‑49)
"Then the width of that stile, that Mr Bradford has described it as, which is that part of the frame, and looking at the right‑hand side, how wide is that?‑‑‑Just guessing, around that wide –80 mil, I'd say.
So about an arm's breadth?‑‑‑Yes, maybe a little more; maybe 100 mil.
So if you were to put your hand on an angle against it as you would if you were resting your hand up against it, your fingers would come to the edge of the stile, the outside edge?‑‑‑Yes.
And you would feel from that that it was just an exposed edge, wouldn't you, if you thought about it?‑‑‑Yes, I'm not sure whether you would sort of notice it without sort of running your hand on it or – yes.
On the inside of the frame, and then the distal or the furthest ends of your fingers, certainly perhaps your middle and your ring finger, would tend to wrap around the outside?‑‑‑Yes. I don't know about wrap around but certainly a little bit of an ascent, yes.
So you could appreciate from that position that what you had on the right‑hand side, and I dare say it's the same on the left‑hand side although there's no evidence of that at this stage, was just an exposed end of a metal sheet?‑‑‑Yes.
That's as you had observed it to be on the occasions that you had previously come to the Tylor's place?‑‑‑I hadn't noticed that there was an edge there on previous occasions."
At T55 in cross‑examination the plaintiff stated as follows:
"And in those circumstances, feeling that you were losing your balance, you still had your hand resting on the frame, I take it, at that stage?‑‑‑Yes, my left hand had left and my right was still there, but as I've felt myself falling ‑ ‑ ‑
Your left has come away as you have been about to turn?‑‑‑That's right.
Your right is still against the doorframe?‑‑‑Yes.
As you have turned you have felt yourself falling back?‑‑‑And I've grabbed a hold of it.
You have just increased your grip on the doorframe?‑‑‑Yes, just moved my hand around and increased it more.
That's to the second joint of your fingers?‑‑‑Slightly up there and runs through the ‑ ‑ ‑
Did you think you could do that in order to steady yourself?‑‑‑It was a natural reaction to steady myself, yes.
…
Do you know whether it was your sort of falling away from the doorframe with your fingers behind the edge that caused the cut or whether in fact you were going down and your hands slid?‑‑‑I think it was a bit of both."
The plaintiff denied under cross‑examination that alcohol had been a factor in the plaintiff losing balance.
He stated that he had about five to six mid‑strength beers during the course of the evening. He said that he did not believe that he was affected by alcohol and was capable of driving home albeit that he had made arrangements not to take his vehicle to the party.
The plaintiff stated the accident occurred at the time when no other guests were present and the only other person in the shed was the defendant Tylor.
The plaintiff stated that as a result of the laceration his right hand bled profusely. He was taken later that night to the Collie Hospital
A medical report of Dr Andrew Crocker, hand surgeon, dated 16 May 2002 (exhibit 5) stated that the plaintiff sustained lacerations to all four fingers of his right hand. The plaintiff divided both flexor tendons in the middle and ring fingers, but no digital nerve injuries were suffered.
The defendant Tylor's evidence
Mr Tylor gave evidence that he did not see the accident. He said that he had his back to the door. He heard a bit of a noise and by the time he looked around he noticed the plaintiff holding his hand and there was blood present.
He gave evidence that no‑one had previously cut their hand on the door.
Mr Tylor stated the shed had been on the property when the defendants purchased the property from Mr Tylor's sister. At the time of purchase, the shed was being used as a storage shed by his sister. His sister left her belongings in the shed for a period of 12 months after the property had been purchased by the defendants.
Once his sister removed her belongings Mr Tylor converted the shed to an entertainment area and a retreat for himself to watch sport on television. He installed a refrigerator, television, table and chairs, and installed carpet on the floor.
The defendant Mr Tylor said he had not made any modifications to the structure of the shed. However, he did paint the inside of the shed and placed some posters on the walls.
Mr Tylor stated it was the place he used most often when conducting social occasions on the premises.
Mr Tylor stated he retained a work bench in the shed.
Mr Tylor gave evidence that the wiring which appears in the photographs as being tucked in behind the metal doorframe where the plaintiff injured his hand had been placed there by the defendant Tylor.
He said that he had covered the sharp edge on the doorframe after the accident by putting a rubber hose over it. He conceded that it was a simple task and inexpensive. It was a simple way to prevent someone cutting their hand on the door frame.
He stated the edge where the plaintiff cut his hand appeared to have been guillotined and had not been cut back or bent to a rounded edge. He agreed that it would have been preferable if the edge had been bent around so that it did not expose the sharp edge of the doorframe.
He stated in his evidence that the edge where the plaintiff cut his hand was sharp to touch or to slide your hand down.
He worked as a scaffolder and rigger with the plaintiff. Mr Tylor stated he was aware in the course of his employment that it was important that metal scaffolding did not contain sharp edges because of the dangers of workmen cutting their hands.
He conceded that the plaintiff would not have been aware of the sharp edge prior to the accident.
In re‑examination Mr Tylor stated that in his experience the exposed sharp edge was not usual in back yard sheds and sheds he had seen mainly had "boxed – in" metal strips without sharp edges.
Findings
I make the following findings:
1.The plaintiff was an invited guest of the defendants at a social function with a group of workmates to celebrate the plaintiff's birthday.
2.The social function was held in a rear yard shed on the premises of the defendants. The shed had been adapted by the defendant Tylor for social and recreational functions. It had a television, refrigerator, carpeted floor, chairs and a table and other amenities making it suitable to conduct social functions for guests. It was the place that the defendant Tylor used most often when conducting social occasions on the premises.
3.The doorway of the shed had a doorframe made of two vertical metal strips. The metal strips on the inside of the doorway were smooth and created no danger. The outside edge of each metal strip was not rounded or smooth and created a danger by its sharpness.
4.The outside edge of each metal strip was 1 to 2 millimetres in thickness. The metal edge appeared to have been guillotined without the resulting edge being smoothed or bent. In the defendant Tylor's experience this was unusual.
5.The edge was sharp to touch and capable of cutting the hand if the edge was grabbed by the naked hand, particularly if the hand slid down the edge.
6.Prior to the accident the defendant Tylor had ample opportunity to appreciate the danger including when placing an extension lead behind the doorframe edge which cut the plaintiff's hand.
7.The plaintiff had not noticed and was not alerted to the sharp edge on the doorframe prior to the accident.
8.Various adaptations for social functions (the refrigerator, the stereo, a poster) were in close proximity to the doorway.
9.The plaintiff arrived at the social gathering at about 7.30 pm. The social gathering was attended by six to eights guests. The accident happened about midnight. At that time the only persons present were the plaintiff and the defendant Tylor.
10.Just prior to the accident the plaintiff was standing in the doorway facing outwards but positioned slightly in or on the doorway waiting for a taxi. He was resting the palms of both hands on the flat surface of the doorway on either side of the doorway.
The edge of his fingers were slightly over the edge of the frame but he did not appreciate the sharpness of the edge.
11.The plaintiff turned to his left to give the defendant Tylor assistance in cleaning up after the social function and in doing so his feet somehow slipped and he lost his balance. Although the plaintiff had been drinking, his loss of balance was not due to intoxication.
12.As an instinctive reaction he grabbed the edge of the doorframe with his right hand. As the plaintiff fell backwards the sharp doorframe sliced the plaintiff's fingers in his right hand causing serious lacerations.
13.After the accident the plaintiff's hand bled profusely and he was assisted by the defendant Tylor. Medical evidence establishes that the plaintiff suffered lacerations to all four fingers of his right hand. He sliced both flexor tendons in the middle and the ring fingers.
Duty of care
Section 4 of the Occupiers'' Liability Act 1985 provides as follows:
"4. Application of sections 5 to 7
(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers —
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent."
Section 5(1) and (4) of the Occupiers' Liability Act 1985 provide as follows:
"5. Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
The first question under s 5(1) of the Occupiers' Liability Act 1985 is whether the doorframe was "a danger which was due to the state of the premises".
In my view, the sharp edge of the doorframe was clearly a danger. It was capable of cutting a person who came in contact with the sharp edge.
As such under s 5(1) of the Occupiers' Liability Act 1985 the defendants were required to exercise "such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger".
Section 5(4) of the Occupiers' Liability Act 1985, without setting out an exclusive list, sets out a number of factual matters to be regarded when considering whether an occupier has discharged his duty of care under s 5(1). These factors materially mirror considerations relevant to the duty of care at common law.
In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 ‑ 48 Mason J stated as follows:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the 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 matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far‑fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
In Romeo v Conservation Commission of The Northern Territory (1998) 192 CLR 431 Hayne J at 488 stated:
"The fact that an accident has happened and injury has been sustained will often be the most eloquent demonstration that the possibility of its occurrence was not far‑fetched or fanciful. Indeed, often it will be difficult, if not impossible, to demonstrate the contrary to a tribunal of fact. That is why it is of the first importance to bear steadily in mind that the duty is not that of an insurer but a duty to act reasonably.
[157] What is reasonable must be judged in the light of all the circumstances. Usually the gravity of the injury that might be sustained, the likelihood of such an injury occurring and the difficulty and cost of averting the danger will loom large in that consideration."
Kirby J in Romeo (supra) stated at 478:
"The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered into in to the relationship which exists between the entrant and the occupier. The measure of care required will take into account the different ages, capacities, sobriety and advertence of the entrance."
The defendants relied upon the decision of Jaenke v Hinton (1995) A Tort Rep 81–368 in which the Queensland Court of Appeal disallowed a claim by a milk vendor who tripped over a garden hose whilst delivering milk.
Thomas J at 62,809 stated as follows:
"In my view the finding of negligence in the present case was quite contrary to contemporary expectations and standards. If the law pretends to impose standards to which reasonable members of the community cannot relate, the law will fall into disrepute. In fact it is the standard of the reasonable person that courts attempt to uphold. The finding of negligence against the appellants in this case assumed an unreasonably high standard of care to protect other persons from danger, and an unrealistic level of foreseeability. The alleged danger was from a common garden hose, the presence of which presented too small a risk to create a duty to remove it."
However, significantly in that case the plaintiff admitted that it was common to find hoses and sprinklers in the yards of residences to which he delivered milk. In the same case, Williams J at 62,811 went on to quote with approval Mahoney JA as follows:
"Mahoney JA made observations which are relevant for present purposes at Aust Torts Reports p 68,474; NSWLR p 74:
'There are dangers on any premises. The room may have a desk or a table. There is a danger that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious people do slip and fall. And the injury may be serious. The obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this, notwithstanding that people may live without tables and that tables may be easily removed.'
In his reasons he referred to the danger or risk in that case as being 'ordinary'."
Conclusion on liability
The edge of the doorframe in this case created a danger. It was sharp and capable of causing injury.
The sharp edge was located in an area of the shed where there was likely to be a fair amount of traffic. It was proximate to the doorway, to the refrigerator, and the stereo player.
It was not, in my opinion, far fetched or fanciful that a guest in the shed might grab hold of the sharp edge of the doorframe and suffer an injury. It is not unusual for persons to use their hands to lean against a wall or a doorframe, particularly when they are relaxing and consuming alcohol. In my view, it was also foreseeable that someone might lose their balance in the vicinity of the doorway and grab hold of the sharp doorframe for support. The loss of balance might occur due to a collision between two or more people accessing the doorway and the refrigerator at the same time, whilst squatting in front of the stereo immediately to the right of the doorway or for some other reason, such as occurred to the plaintiff.
The issue then is whether the magnitude of such a risk of injury occurring required the defendants to take steps to remove the danger.
Certainly the danger could be easily removed, as in fact was done by the defendants after the accident by simply covering the sharp edge with split hosing.
The danger created by the sharp edge was not an ordinary danger of the type referred to in Jaenke & Anor v Hinton (supra). It was not the sort of inherent danger that one would normally expect from a structure which had been adapted for entertainment of guests.
If the shed had been used simply as a storage and/or work shed, the number of visitors to the shed would have been limited. Also any visitor to the shed would be likely to remain in the shed for a specific task and one would anticipate would be in the shed for a relatively short period of time.
Once the shed was converted to an entertainment area it followed that –
(a)There was likely to be a significant increase in the number of visitors, and there was likely to be a number of visitors at once.
(b)There was likely to be a fair amount of activity around the doorway where the refrigerator and stereo were also located.
(c)There was likely to be people in the shed drinking alcohol and generally relaxing.
As a result of the above, the chances of someone making contact with the sharp edge of the door and injuring themselves increased significantly.
In my view, once the defendant converted the shed for use as an entertainment area he was under an obligation to remove the danger created by the sharp edge on the frame of the doorway so as to prevent injury from a person coming into contact with the sharp edge.
It matters not that the defendants may not have contemplated the actual circumstances of the plaintiff's injury. In Hughes v Lord Advocate [1963] AC 837, Lord Morris of Borth-Y-Gest at 853 stated:
"There was a duty owed by the defenders to safeguard the pursuer against the type or kind of occurrence which in fact happened and which resulted in his injuries, and the defenders are not absolved from liability because they did not envisage the precise concatenation of circumstances which led up to the accident".
I find that the defendants were in breach of their statutory obligation to take care as in all the circumstance of the case was reasonable to see that the plaintiff would not suffer injury by reason of the danger of the sharp edge on the doorframe.
Contributory negligence
Section 10 of the Occupiers' Liability Act provides as follows:
"10.The Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 applies to claims under this Act."
The onus of proving contributory negligence is upon the defendants. The test is whether the plaintiff failed to take reasonable care for his own safety and that depends upon the circumstances. In Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492, the court delivered a joint judgment and at p 492 stated:
"The making of an apportionment as between a plaintiff and a defendant of 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, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in casing the damage will be of little, if any, importance."
The defendants in their pleading allege that the plaintiff was negligent in that he:
(i)Failed to maintain a proper look out and watch where he was going;
(ii)Grabbed an exposed metal part of the shed whilst falling, when he knew or ought to have known that it involved a risk of cutting his hand.
My findings are that the plaintiff lost his balance as he turned around. The reason for this loss of balance is not clear. In any event, it was not the loss of balance which caused the injury to him, but the grabbing of the doorframe.
The grabbing of the doorframe was the result of an instinctive action by the plaintiff to his loss of balance. The plaintiff was not aware at the time he grabbed the doorframe of the sharpness of the edge of the doorframe and the risk of injury.
In such circumstances, I conclude that the plaintiff was not guilty of any contributory negligence.
Assessment of damages
Headings
1.Plaintiff's evidence of his complaints
2.Medical evidence as to disabilities
3.Medical findings
4.Evidence on Dupuytren's disease
5.Findings on Dupuytren's disease
6.Loss of earnings
6.1The plaintiff's evidence
6.2Medical evidence on loss of earning capacity
6.3Other expert evidence on loss of earning capacity
6.4Findings on loss of earning capacity
7.Assessment of past loss of earnings
8.Assessment of earning capacity in the future
9.Superannuation
10.Gratuitous services
11.General damages
12.Summary
Plaintiff's Evidence of his Complaints
The plaintiff's evidence was that as a result of the laceration to his right hand, his right hand bled profusely. Initially he wrapped the wounds in a paper towel.
After returning home he was taken to the Collie Hospital. The wounds were bandaged. The next day he reported to Dr B Saharay. The plaintiff was told that the tendons were cut and he was referred to the Royal Perth Hospital for further treatment. On Sunday, 9 April 2002 the plaintiff was operated on in the Royal Perth Hospital.
The plaintiff came under the care of Dr Andrew Crocker, a plastic surgeon.
A re‑rupture occurred in the ring finger, and as a result, the plaintiff needed further operations.
The plaintiff states that he suffers a loss of dexterity in the right hand. He says that he cannot close his fist fully.
He says that he can hold larger objects without any problems, and with quite good strength but has difficulty holding smaller objects.
He says that he has difficulty using tools such as hammers and spanners, and often drops these tools.
He says handling things generally is awkward and as a result of the awkwardness performing tasks usually takes more time.
He says he can chop wood, but after a while it causes pain in his forearm.
He complains that he gets a lot of stiffness.
He had to undergo physiotherapy and other treatment for about 12 months after the accident.
His wife assisted him when he first came out of hospital and his hand was in bandages. His wife for a period of four to five weeks had to do virtually everything for him, including cutting his food, helping him dress etc.
He complains that the condition of his residence has deteriorated because he has not been able to do maintenance work.
Now because of the slowness of him mowing the lawn, his wife and son help with the mowing of the lawn.
Before the accident he played veterans hockey in Bunbury. He was also a member of the Collie Squash Club. He says that he has not been able to return to either of these sports due to the difficulty of holding the stick and racquet.
He says that prior to the accident he had built and sailed his own yacht, however, now he does not believe he is able to sail alone and requires the assistance of a crew.
Before the accident he played competition darts, but he now believes he is not able to play darts due to the difficulty of holding the dart.
The plaintiff's wife, Mrs Rhonda Jane Bark, gave evidence. She has been married to the plaintiff for 22 years. She stated in her evidence that the plaintiff takes longer to do things and he has difficulties. She gave examples of chopping wood, mowing lawns and painting. She said that she now does any painting required around the house.
She said when her husband first came home from hospital she helped him get dressed, cut up his food, tied his shoe laces up and placed toothpaste on his toothbrush.
She said that he had now slowly over time come to do most tasks himself.
Medical evidence as to disabilities
In the report dated 16 May 2002, Dr Crocker summarised the medical situation as follows:
"Your client sustained lacerations to all four fingers of his right hand. He divided both flexor tendons in the middle and ring finger, but had no digital nerve injury. Repairs of these were undertaken on 9 April 2001, but unfortunately the repairs dehisced, and he required repair of the middle finger on 26 April and the ring finger on 10 May 2001. Subsequently to that his fingers have gone on and healed, but he has significant ongoing, permanent disability."
Dr Crocker reviewed the plaintiff on 28 March 2002, and as a result of that review in his report dated 6 May 2002 concluded as follows:
"3.The findings at his last consultation on the 28th March 2002 were as follows ‑
He indicated to me that he is predominantly right handed and was previously employed as a rigger and scaffolder. He injured his right hand at work on the 7th April 2001 when he cut it on the sharp edge of the door when he tripped on a mat.
Clinical findings were: In the little finger – for him to have a PIP joint range of movement 10‑60º and DIP 0‑30º. In the ring finger – he had a PIP joint range of 15‑55º and DIP 35‑65º. In the middle finger – he had a range of movement 15‑70º at the PIP joint and 20‑45º at the DIP joint. In the index finger – the PIP joint had 0‑90º and DIP 0‑45º. His thumb had normal range of movement.
He had grip assessments done and he had a 22 kilo grip on the right as compared to a 49 kilo average at this age.
On the basis of the above findings I would assess him as having an ongoing permanent disability of ‑
•Right index finger – 17% permanent disability.
•Right middle finger – 35% permanent disability.
•Right ring finger – 46% permanent disability.
•Right little finger – 42% permanent disability.
Further taking into account his significant loss of grip strengths, I would assess him as having a 23% (whole person percentile) permanent disability best classified under 14 of the Second Schedule. Alternatively this could be considered as 28.4% permanent disability below the elbow."
Dr Crocker reviewed the plaintiff on 11 January 2005 and gave a subsequent report dated 12 January 2005. In that report he stated as follows:
"When I reviewed him on 11/1/05 he indicated that he was having problems with the use of his right hand with reduced dexterity and strength. In terms of manual activities this made it difficult for him to hold a hammer or other implements such as an axe. Additionally pulling on ropes was difficult and prolonged use resulted in aching in his hand. He did report having a fairly normal sensation in his fingers and still remains right handed as far as writing is concerned.
In terms of sporting activities he used to play hockey and squash and does not currently do so and feels that it would be difficult to hold a hockey stick or squash racquet in his hand because it is uncomfortable in his grip strength such that they may fly out of his hand. He reports no particular cold sensitivity but does find that the contracted fingers do tend to catch on things.
Clinical examination reveals findings similar to those in the report of Dr Andrew Marsden dated 16/12/2003. However my findings were as follows ‑
Right index finger: MCP normal, PIP 0-80º and DIP 20‑53º.
Right middle finger: MCP normal, PIP 20‑60º and DIP ankylosed at 60º.
Right ring finger: MCP normal, PIP 30‑50º and DIP ankylosed at 70º.
Right little finger: MCP normal, PIP 10‑60º and DIP 10‑60º.
...
Due to the mobility loss of his fingers I have assessed him as follows:
Right index finger: 22% permanent disability
Right middle finger: 57% permanent disability
Right ring finger: 68% permanent disability
Right little finger: 32% permanent disability
These values were reached and used according to the American Medical Association Guides to Valuation of Permanent Impairment."
The defendants called Dr Andrew Marsden as a witness. He examined the plaintiff on 15 December 2003.
In a report dated 16 December 2003, he stated as follows:
"On examination, he presented as a straightforward slim man with a muscular frame. In the right hand he has some Dupuytren scarring in the palm, and in the left hand he had ring finger contraction with a cystic lesion over the proximal phalanx of the ring finger, and a full grip, with a grip power of 47 kg on my simple machine, but with a PIP joint flexion deformity in the left ring finger.
All the finger range of movements were undertaken using an accurate finger goniometer.
In the index finger he had a well healed flexion scar over the PIP joint, with full extension at the DIP and PIP joints, with flexion at the DIP joint to 70º and flexion at the PIP joint to 60º. He had slightly reduced grip in terms of power to the index finger. He had no sensory changes in any of the fingers.
In the middle finger he had a well healed scar from the repair procedure which was non tender. He had an ankylosed interphalangeal joint in the middle finger ankylosed at 50º. In the PIP joint he had an extension lag of minus 10º, and could flex to 60º.
In the ring finger he had a well healed scar which was non tender, and the distal interphalangeal joint was ankylosed at 85º. The PIP joint had an extension lag of minus 20º, and flexed to 45º.
The little finger had a well healed non tender scar, with full extension at the DIP and PIP joints, with flexion to 70º at the PIP joint, and flexion to 70º at the PIP joint.
He had a right hand grip of 20kg which is well down on that expected for a man of his size, build and background.
He has reached a stable and static stage now, and not much has changed over the last year or so although I note some of the range of movements that I have measured are slightly different from those obtained by Mr Andrew Crocker, but may reflect some gradual increase in movement although he said it has been fairly stable and static recently.
Mr Bark has suffered a deep laceration to the 3rd and 4th fingers, sufficient to cut across the deep and superficial flexor tendons for each finger, which have required repair. He has suffered a shallower laceration to the index and little fingers, which did not involve underlying tendon damage.
In terms of loss of efficient function, using standardised tables, he has a 5% loss of efficient function of his index finger, a 66% loss of efficient function of his middle finger, and an 85% loss of efficient function of his ring finger, and an 18% loss of efficient function of his little finger directly due to the lacerations and subsequent healing and recovery.
If those percentages are put into a conversion table converting the loss of efficient function of each individual finger to loss of efficient function of the hand as a whole, which is relevant for his working role, this equates to a 25% loss of efficient function of his hand as a whole. In Workers' Compensation circumstances this would be under item 17 to Schedule 2 of the Workers' Compensation & Rehabilitation Act (1981 as amended).
This 25% loss of efficient function is a fair reflection of why he could not return to work as a scaffolder and rigger, a working role which as described above requires good hand dexterity, grip and efficient function."
Medical Findings
I make the following medical findings:
1.The plaintiff sustained lacerations to all four fingers on his right hand. He divided both flexor tendons in the middle and ring finger, but had no digital nerve injury. Repair of these were undertaken on 9 April 2001, but the repairs dehisced and he required repair of the middle finger on 26 April, and the ring finger on 10 May 2001.
2.The plaintiff underwent therapeutic treatment for a period of up to 12 months after the accident. This treatment included mainly physiotherapy treatment.
3.The plaintiff has suffered a permanent disability in accordance with the report of Dr Andrew Crocker, dated 19 January 2005. The mobility loss of his fingers is as follows:
Right index finger, 22 per cent permanent disability;
Right middle finger, 57 per cent permanent disability;
Right ring finger, 68 per cent permanent disability;
Right ring finger, 32 per cent permanent disability.
I also make findings in accordance with the evidence of the plaintiff's complaints. I find that the plaintiff and his wife to be truthful and reliable witnesses.
I prefer the evidence of Dr Crocker to Dr Andrew Marsden as to the percentage of disabilities arising from the accident. The reason for this is that Dr Andrew Crocker is an experienced plastic and reconstructive hand surgeon who has considerably greater experience and speciality dealing with hand disabilities due to trauma. Dr Andrew Marsden is an occupational physician, and in my opinion does not have the same expertise as Dr Crocker in the assessment of hand injuries.
Evidence on Dupuytren's disease
Prior to the accident the plaintiff had previously suffered in his right hand from Dupuytren's disease.
The plaintiff tendered into evidence the medical report of Dr B Saharay, dated 23 June 2003. In this report Dr Saharay stated as follows:
"Mr Bark attended initially to Dr E S Brill on the 05.01.1995, and 02.07.1996 for Dupuytren in right hand.
He was referred to me for surgical correction of Dupuytren Contracture in right hand. On examination, I found that he had suffered flexion deformity to the index finger by Dupuytren tissue and there was Dupuytren tissue in palm in the direction of the little and the middle fingers but no deformity to these fingers. At operation on 31/07/96 these findings were confirmed and I excised all Dupuytren lesions in the palm. This resulted in full function of right hand and full movements of all the fingers were restored. He returned to full time work as a scaffolder."
The plaintiff also tendered into evidence a medical report of Dr Andrew Crocker dated 12 January 2005 (a part of exhibit 5). In this report he stated as follows:
"There is certainly thickening in the palm partly due to scar tissue but also I think due to concurrent Dupuytren's disease. It is difficult to quantitated how much of his problem is due to scarring and how much due to Dupuytren's but in either case I do not feel that surgery is likely to be of significant benefit at this time and has some risk in terms of loss of sensation within the fingers due to nerve injury.
…
I would agree with Dr Marsden the Dupuytren's contracture would likely progress in Mr Bark's case and it is unlikely that he would be able to continue his occupation as a scaffold or rigger in the long term. However the progress of Dupuytren's contracture is variable and an accurate time frame cannot be determined with any certainty. Generally speaking the onset of disease early in life is associated with an accelerated progress where as late onset Dupuytren's disease tends to have a more benign course. That being the case in this gentleman's case I think that it is likely that his disease would progress as he is relatively young for the onset of this condition. It is possible that the condition can recur and surgery would involve excision of the Dupuytren's tissue to try and release the joints. However a full recovery is unlikely. He would however be able to continue self care and is not likely to be able to continue in a job that requires either significant heavy physical activities such as scaffolding or labouring and may have some difficulty with some fine manipulative tasks as well."
Dr Crocker gave evidence at the trial on behalf of the plaintiff and gave evidence which to some extent departed from the opinion he expressed in his report dated 19 January 2005.
At T101:
"That's fine. I won't ask you any further. If we deal with the issue of Dupuytren's contracture, have you had occasion to examine or look at his right hand to see whether currently there's any evidence of recurrence of the disease?‑‑‑I saw Mr Bark two weeks ago and I have just seen him again just briefly now. My opinion is that most of the thickening in his hand, on his injured hand, that is his right hand, is scar tissue.
Yes, and not related to Dupuytren's?‑‑‑I cannot feel any Dupuytren's disease."
At T103:
"When it is operated on successfully is there any way of determining with any degree of accuracy when it might recur, if it does?‑‑‑I think on an individual basis, no, you really can't say exactly what someone's course is going to be. We would say certainly early onset disease tends to have a worse prognosis in terms of more disease in the years to come than someone that gets it in later life.
Yes?‑‑‑But then some people, as I say, just get a contracture, have an operation and then they never have a further problem. So there seems to be variation in terms of individual response to surgery and suchlike.
I think we know from a medical report that has been handed in of his initial treating surgeon for the disease in 1996 that it has been almost nine years now since that surgery. You have had occasion to look at his right hand. I think you've just given evidence that you don't find any Dupuytren's in that hand. Would that be an indicator as to the likelihood of recurrence in your opinion?‑‑‑I would say if in fact nine years has gone by since his previous surgery and he hasn't had further recurrence, then it's a more benign course, I guess I have to say.
Yes?‑‑‑Certainly in his hand he does have a lot of scar tissue and, as I say, it's not a disease as such, it's a condition, so you can't say that he will never have a problem, but certainly if he has gone nine years and he hasn't had an issue with that, then that makes it less likely to be an issue in the future.
I think he told us yesterday that his father had the disease at the same age, namely at about 36, and that his father had it operated on then and has not had any problems and he is now 66 years old. Does that assist you in any way in determining the likelihood of recurrence?‑‑‑Again you can't necessarily say one follows the other, but generally I guess if the family trend is towards a benign course, then one would say that's probably more likely than the other.
If we go on assumption that at some stage it will recur, is there any way of predicting in what form of severity it might recur or how severely it might recur?‑‑‑Not really, no."
At T104:
"So if we can deal then with his left hand, you've had occasion to examine that as well?‑‑‑Yes.
I think that he told us yesterday that he has had conflicting opinions. He has had one opinion from his initial treating surgeon, Dr Saharay, that it doesn't represent Dupuytren's and I understand from the plaintiff that you don't share that view, that in the left hand there are some signs of it at this stage?‑‑‑Yes. I did just briefly have a look at him again and I would be of the opinion that he has got Dupuytren's disease in that left hand and it is producing a degree of contractual bending."
At T105:
I think you have told us that it's variable. Is it possible to predict any time frame as a surgeon and someone experienced in the condition?‑‑‑Not usually on an individual basis. It's sometimes impossible to predict, when you see someone for the first time, what their disease is going to do, whether it's going to follow a benign course or not. Certainly in Mr Bark's case I would say if he hasn't had a problem with his right hand in terms of Dupuytren's in nine years, that to me would probably indicate that it's probably going to keep following that fashion, with probably less than average likelihood of recurrence, I would suppose."
Under cross‑examination Dr Crocker stated as follows.
At T111:
"You seem to acknowledge in that report that the scarring is due to both?‑‑‑That is true. I certainly would say looking at his hand it is scar tissue. There is a bit of thickening in the mid part of his palm where it's lumpy or – I think one of the other reports regarded it as maybe a cyst and that could be a Dupuytren's nodule, but my opinion is that it's probably more likely to be scar tissue, but it could be Dupuytren's.
Do you agree that the report seems to read more definitely in that respect, scar tissue I think due to concurrent Dupuytren's?‑‑‑Yes, I would say there's certainly thickening in the palm, partly due to scar tissue. Then perhaps you should put in the rider 'possibly due to recurrent Dupuytren's,' because there is a nodule in the palm, but I think that's probably more likely scar tissue but it could be Dupuytren's.
It's still your view as the second statement in that paragraph that it's difficult to quantitate how much of the problem is due to scarring and how much is due to Dupuytren's?‑‑‑It is hard to say there's no Dupuytren's there, that's true, but certainly I would say much more likely is that it's scar tissue.
Have you had cause to reconsider the question of whether there's Dupuytren's since you carried out this examination?‑‑‑Do you mean like today?
Yes?‑‑‑Certainly I did have a look at Mr Bark outside there and reassessed his hand and looked at his other hand as well. My opinion is that it is predominantly scar tissue.
So you have changed your mind?‑‑‑Well, maybe it should read differently to what is written there. The possibility is that the rider should be 'possibly concurrent with Dupuytren's disease,' rather than definitely Dupuytren's disease."
Further at T113:
"So do you stand by the opinion expressed in the last paragraph of your report on page 2, 'It's unlikely that Mr Bark would be able to continue his occupation as a scaffolder or rigger in the long term'?‑‑‑Yes. I mean, it's only a guess on our part because you can't say with any great certainty whether disease is going to progress in an individual case.
No, but you can do so by reference to your experience of other cases and draw on that experience for predictions?‑‑‑He has sort of got a divergence, I suppose, in that he has an early onset disease which would tend to err on the side of a worse prognosis, yet he apparently had it operated on in 1996 and he hasn't had a recurrence since then, though there may be a little bit of disease there, but that would err towards the side of a benign course so it's a bit hard to say exactly which way he is going to go."
At T115 in re‑examination, Dr Crocker states as follows:
"Dr Crocker, my learned friend asked you in page 2 of the booklet – if you look at the fourth‑last line, he emphasised that where you –he asked you questions where you indicated, 'However, a full recovery is unlikely.' That is only if it recurs?‑‑‑Full recovery after surgery.
Yes, after recurring surgery we are talking about because if we read the whole lot, well, the four lines above that you're talking about regression and then the sentence before you say:
'It is possible that the condition can recur and surgery would involve excise of the tissue. Full recovery is unlikely.'
That relates to recurrent surgery?‑‑‑Yes. The more recurrence you have, the worse the prognosis.
I see?‑‑‑Each subsequent surgery, whilst it may be able to correct to some degree the contractures that are present, would involve more scarring and scarring itself may result in some ongoing disability."
Dr Marsden in his report dated 16 December 2003 (exhibit 8) stated as follows:
"I think it is not unreasonable to say that he would probably would not have lasted to the age of 65 as a full‑time scaffolder and rigger due to the progressive nature of the Dupuytren contracture issues. I think it is likely that he would have been affected by this congenital progressive condition to prevent him working much beyond the age of 55 in his scaffolding working role. This would be due to the independent Dupuytren contracture irrespective of his hand injury under the auspices of this claim".
Under cross‑examination Dr Marsden conceded that if there was a reoccurrence of the Dupuytren then it might be corrected by surgery. At T132 he stated as follows:
"Did you see anything about reoperation on the recurrence?‑‑‑Yes. Reoperation can be undertaken and then you get issues associated with further scarring, scar tissue, but it can be done.
And reoperation can be successful in returning normal function to the hand?‑‑‑I don't think it's quite as – I didn't get the impression it was quite as successful as before but better function, yes.
We're not dealing with a long period of time in terms of Mr Bark and there's no reason why it's not possible that he can continue to normal retirement age without recurring symptoms of disease?‑‑‑If he had the problem at 36 and he had the – he had the operation at 36 so the condition came on early. If he had a further, say, 10 to 15 years which would take him to 50 – if he then has recurrence and then a further operation – as I said to your learned colleague, we're starting to move into areas where other issues may start to come in.
We don't know of other issues. If he has another operation at 50, he may well last till 65?‑‑‑From the pure point of his hand, yes, he could."
At T133 he further stated as follows:
"There are two things we don't know?‑‑‑Yes.
The first is whether or not it will recur?‑‑‑Yes.
And the second is if it does, how successful the relieving surgery will be. Is that a fair ‑ ‑ ‑?‑‑‑I think it's very fair. I've got no problem with that.
…
What he (Dr Crocker) said to us today was that if we haven't seen any hard signs of recurrence after nine years then it's more likely to be a benign existence than one which recurs severely?‑‑‑Yes.
Would you agree with that?‑‑‑I don't think I can comment. I would have to defer to that.
You would defer to that?‑‑‑Yes, I think so".
Findings on Dupuytren's disease
I prefer the medical opinion of Dr Crocker where he conflicts with Dr Marsden given Dr Crocker's specialty and experience. I make the following findings:
(1)The plaintiff suffered from Dupuytren's disease in his right hand in 1995 and was operated on 31 July 1996 by Dr Saharay.
(2)The plaintiff has not had any reoccurrence of Dupuytren's disease in his right hand. There is scarring in his right hand which is most probably from his surgery from the accident injuries rather than Dupuytren's disease.
(3)The plaintiff has had a period of nine years without a reoccurrence of Dupuytren's disease in his right hand, and this suggests it is less likely to reoccur in the future.
(4)The plaintiff has some signs of Dupuytren's disease in the left hand, which if it causes restrictions can be operated on.
(5)Even if the plaintiff has a reoccurrence of Dupuytren's disease in the right hand, it can be further operated on but a full recovery is unlikely to be effected by a further operation due to scarring which may result in some ongoing disability.
Loss of earning capacity
6.1 The plaintiff's evidence
The plaintiff's evidence is that he was born on 6 April 1960. At the time of the trial he was aged 45.
He was born in Christchurch in New Zealand. He attended school in England, and left school at the age of 17. After school he travelled to Europe and then eventually back to New Zealand where he worked in an orchard. Eventually the plaintiff settled in Collie in Western Australia where he met his wife and married. That was in about June 1980.
A few months after arriving in Collie he obtained work at Muja Power Station. He had been employed at Muja Power Station off and on up until the time of the accident.
He was employed working with scaffolding and rigging. He started off as an unlicensed rigger, and then progressed through the years. Eventually he obtained a qualification as a scaffolder but remained an unlicensed rigger.
The scaffolding work involved designing and erecting scaffolding for various tasks to be performed. It was generally at the beginning of shut downs for maintenance. Once the shutdown occurred, then he became involved in rigging tasks which might be lifting out components with chain blocks. The work requires strong hands and arms.
He was employed on a contractual basis on demand. The contractual work was very regular and provided regular income, almost equivalent to full‑time employment.
Prior to 1988 the plaintiff worked between contracts at Muja Power Station with Cardinal Constructions as a machine operator, including as a roller operator, a loader operator, and a truck driver.
The plaintiff had aspirations to become an airline pilot, but started fairly late in life. The Collie Aero Club was formed and in 1988 he obtained a pilot's licence through the Collie Aero Club and the Bunbury Aero Club, and then later obtained his commercial licence. He worked for a while as a pilot at Port Hedland and then went back to Collie and obtained seasonal employment with CALM. He worked approximately six or seven seasons with CALM doing fire surveillance work. The season was generally from about late November through to early April.
When he obtained the contractual work with CALM he temporarily resigned from his position at Muja Power Station doing scaffolding and rigging.
It soon became apparent to the plaintiff that he was unlikely to progress further in a career as a commercial pilot, and as he was only obtaining seasonal employment, he decided that he would cease to seek seasonal employment with CALM. His last season with CALM was in the financial year ending 30 June 1997, although there was a small short term aerial photography contract in the financial year ending 30 June 1998.
Since the accident he has been unable to obtain any contractual employment as a pilot.
Immediately prior to the accident he was employed as a scaffolder rigger with Fluors Daniels at the Muja Power Station. He has not worked with them since the accident. Since the accident the plaintiff obtained a crane driver's ticket in the hope that he may be able to obtain work as a crane driver. However, he has not been able to obtain work as a crane driver in the south west.
He has also made enquiries at a boat shed in Bunbury with a view to trying to find work in the boating business. He also underwent a programme with the Commonwealth Rehabilitation Service with a view to seeking some other alternative form of employment. He was introduced to the new Enterprise Incentive Scheme through the Business Enterprise Centre with a view to investigating the possibilities of setting up a business. The plaintiff said that he considered setting up a dive or fishing charter business. This was meant to attract wealthier tourists who would charter a pleasure cruise for a day for one on one diving and fishing type operations. However, nothing came of the proposal because he did not have any capital to set up the enterprise. Also there were doubts about the viability of it as he required the assistance of another person appropriately qualified to conduct such charters. It was difficult to know whether he would be able to obtain a person interested in being in partnership with him.
The plaintiff has not worked in any capacity since the accident. For the first two years after the accident, the plaintiff had the benefit of an Income Protection Policy which reimbursed him for his loss of income.
6.2 Medical evidence on loss of earning capacity
Dr Crocker in his report dated 16 May 2002 stated as follows:
"6.The significant injury to his hand would make it extremely difficult, if not dangerous for him to return to work as a rigger and scaffolder given the fact that he relies on hand for safety when he is working at heights. Serious consideration needs to be given when finding an alternative career that does not expose him to these risks."
Dr Marsden in his report dated 16 December 2003 (exhibit 8) concluded that the plaintiff was permanently unfit to work as a scaffolder and rigger.
6.3 Other expert evidence
The defendants tendered into evidence a report of Professor Charles Mulvey, a labour market expert. This report examined the prospects of the plaintiff obtaining work as a pilot and a crane driver. The report concluded in relation to a position of a pilot that employment prospects for pilots were poor and that a person seeking employment would expect to search for a considerable period of time before obtaining employment. A person seeking employment in the Collie area where the plaintiff resides had very little prospect of securing employment.
In relation of a position of a crane driver, the report concluded as follows:
"A worker seeking employment as a crane operator who is not currently employed in the construction industry will have to be willing to search actively and over a period of time to secure a job. An experienced worker in good standing with employers (and, perhaps the Union), may be able to be considered for internal vacancies in Perth. Jobs will become vacant from time to time in the Collie area, but a worker seeking work in that area only must expect to have to wait for a considerable period of time before finding a job. A worker willing to work in Perth, the North West or Goldfields will enhance their prospects of finding a job."
The defendants also tendered a report of Carina Eileen Della‑Posta, a clinical psychologist with experience in the labour market. The report concluded that vocationally the plaintiff was suitable for the following areas of employment:
Pilot
Scaffolder
Rigger
Trades assistant
Mobile plant operator
Crane Driver
Check‑out operator
Console operator
Sales assistant
Car park attendant
Cleaner
Process worker
However, no indication was given as to the availability of such work in the Collie area where the plaintiff resides, nor the likely income that could be earned. Further, the report did not take into account the plaintiff's disabilities. In view of the above, little or no weight can be attached to this report. In Thomas v O'Shea (supra) at 68,701 Malcolm CJ and Wallace J stated as follows:
"The legal onus of proof of loss of earning capacity rests, of course, on the plaintiff, but once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him from finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings."
The report of Carina Della‑Posta gives no indication as to the labour market and the likely earnings on the vocational alternatives listed, and therefore the contents of this report fails to provide any assistance to the defendants.
6.4 Findings on loss of earning capacity
6.4.1At the time of the accident the plaintiff was employed as a rigger and scaffolder with Fluors Daniels. In the financial year before the accident (1 July 1999 to 30 June 2000) the plaintiff's taxable income was $60,470. In the financial year of the accident, the plaintiff's taxable income was $67,897.
6.4.2The nature of the plaintiff's employment was contractual when scaffolding and rigging work was required. As such it was not a full‑time position of employment. Prior to 1988, the plaintiff supplemented his income during non‑contractual periods as a machine operator with a company, Cardinal Contractors, operating machinery such as a roller, loader and a truck.
6.4.3In 1988 the plaintiff obtained a commercial pilot's licence as a part of a plan to fulfil an ambition to become a full‑time commercial pilot. From about 1992 to 1997 the plaintiff was employed with CALM on a seasonal basis as a pilot operating a fire spotting aerial surveillance scheme. The contractual work was from November to April of each year. During such periods the plaintiff made himself unavailable for scaffolding and rigging work.
6.4.4In about 1997 the plaintiff decided that it was unlikely that he would be able to pursue a full‑time career as a commercial pilot and ceased to work for CALM except on a few isolated occasions.
6.4.5Since the accident the plaintiff has been permanently incapacitated from working as a scaffolder and rigger.
6.4.6Since the accident, the plaintiff has genuinely sought to obtain alternative employment. He has made enquiries with CALM, the Bunbury Aero Club and the Collie Aero Club, but has not been able to obtain employment as a pilot. The job prospects for pilots is generally poor, and there is little prospect of the plaintiff obtaining employment as a pilot.
6.4.7Approximately eight to ten weeks after the accident, the plaintiff sought qualification as a crane driver to improve his chances of later seeking employment as a crane driver. The plaintiff has sought employment as a crane driver but has to date been unable to obtain employment. Obtaining work as a crane driver is likely to take some considerable period of time. The plaintiff will find it difficult competing for limited positions due to his accident injuries.
6.4.8The plaintiff has sought employment in other areas including making enquiries at the Boat Shed in Bunbury and as a yardman at a local hotel.
6.4.9The plaintiff will have difficulty obtaining employment as a plant operator as part of the task of a plant operator includes servicing the vehicles, changing tyres and other tasks which require strength and dexterity in the operator's hand.
6.4.10The plaintiff underwent a Commonwealth Rehabilitation Service Programme in the nature of a New Enterprise Incentive Scheme to establish his own business as a charter boat operator. The plaintiff proposed that he operated a fishing and diving charter service to tourists. This would involve a significant investment in purchasing a boat and also employing adequately qualified people. The plaintiff was unable to proceed with this scheme due to a lack of funds and in any event the scheme is fraught with many difficulties.
6.4.11The plaintiff is a person who has made a genuine effort to obtain employment in the Collie area, but to date has been unsuccessful. If he had not been injured he would have continued to be employed as a scaffolder and rigger, and continued to earn income of the magnitude he earned prior to the accident.
6.4.12It is possible that at some point in the future prior to the plaintiff reaching retirement age, he would have experienced a further episode of Dupuytren's disease in both the left hand and right hand which would require an operation. The left hand operation is likely to be fully successful. However, a further operation on the right hand, if it does occur, will leave the plaintiff with some further disability, the extent of which is difficult to predict.
6.4.13The plaintiff has a good work history and is the sort of person who will continue to seek some form of employment. It is likely to take some time, but at some stage it is likely he will obtain some form of employment or establish his own business producing income.
Assessment of past loss of earnings
The plaintiff and the defendants have agreed that for the purposes of any assessment of damages for past loss of earnings, future loss of earnings and loss of superannuation, that the plaintiff should be treated as having an earning capacity equivalent to $70,000 gross per year which equates to $967 net per week.
In my opinion, the plaintiff is entitled to an allowance for past loss of earnings from the date of the accident until judgment at the rate of $967 per week.
From the period 7 April 2001 to 5 April 2005 equates to close to 208 weeks which equals a total of $201,136.00.
Interest of past loss of earnings
The interest payable on the past loss of earnings is calculated as follows:
$201,136 x 6% x 4 years ÷ 2 = $24,136.32.
Assessment of earning capacity in the future
The starting point in the calculation for future loss is on the basis that a total loss would be equivalent to $967 per week up until the plaintiff reached the age of 65.
The plaintiff is currently aged 45 so that the multiplier for 20 years is 616.3. The total future loss based upon a total incapacity is $595,961.10.
In Thomas v O'Shea (1989) A Tort Rep 80–251 it was stated that where there is a pre‑existing condition and it is not possible to define the extent to which it will limit the claimant's working life, the pre‑existing condition can be taken into account as a part of the normal contingencies.
In this case it is clear that the appellant has lost his earning capacity he had before the accident. The legal onus of proof or loss of earning capacity rests, of course on the plaintiff. But once the plaintiff has proved that he has lost his pre‑accident earning capacity and has been unable to find alternative employment, or that his condition has prevented him finding alternate employment, an evidentiary burden is cast on the defendant to show that alternative employment opportunities were open and including the state of labour market and the likely earnings. [See Thomas v O'Shea (supra) at 68,701].
It is clear that the plaintiff has some residual earning capacity. The reports tendered into evidence by the defendant indicate that it may take some time before the plaintiff may obtain some form of employment.
In my opinion the most suitable way of making an appropriate allowance for the plaintiff's residual earning capacity, the possibility of Dupuytren's disease limiting his earning capacity in the future and other general contingencies is to make a reduction of 40 per cent for contingencies. I therefore allow $357,576.66 for future loss of earnings.
Superannuation
As to superannuation the parties have agreed a figure of $66 per week which reflects the plaintiff's entitlement to employer funded contributions of 9 per cent of the gross wages for a 38 hour week, less a standard deduction for tax and fund administration expenses (30 per cent). Based upon these amounts the calculation for superannuation is as follows:
Past Loss ‑ $66 x 208 weeks = $13,728.00
Interest ‑ $13,728 x 6% x 4 years ÷ 2 = $ 1,647.36
Future ‑ $66 x 616.3 multiplier = $40,675.80
The amount for future superannuation should be reduced by 40 per cent for contingencies which reduces the allowance to $24,405.48.
Gratuitous services
The accident occurred on 7 April 2001. The plaintiff underwent surgery on 9 April 2001, and subsequently had further surgery on 26 April 2001 and 10 May 2001.
I believe it is reasonable to allow a period of three months (12 weeks) when the plaintiff would have required his wife to assist him with domestic tasks such as getting dressed etc. The plaintiff in his evidence said that for a period longer than four to five weeks he required his wife to do his buttons up on his clothing.
I believe a reasonable allowance for gratuitous services is $15 per hour for 2 hours per day or $210 per week for 12 weeks which totals $2,520.
Interest on this amount is calculated as follows:
$2,520 x 6% x 4 years ÷ 2 = $302.40
Although the plaintiff gave evidence that he requires further assistance in household chores, under cross‑examination he admitted that he could still perform these tasks but it simply took him longer.
The sort of tasks he takes longer to perform are tasks such as mowing the lawn, chopping wood and painting. In Newman v Nugent (1992) 12 WAR 119 at 122 Franklyn J stressed that the compensation payable to the plaintiff for gratuitous services was payable for the incapacity of the plaintiff to look after himself. It had to be distinguished from services provided to the family as a unit. Of course, some of the services provided to the family unit could also overlap with the plaintiff's own needs.
However, in view of his evidence that he is able to perform tasks but they take longer, I do not believe any further allowance for future gratuitous services ought to be made.
General damages
For the plaintiff's damages for pain and suffering that the injury has caused him and may cause him in the future, and loss of satisfaction in being unable to pursue recreational interests and his career as a scaffolder and rigger, I allow the plaintiff $45,000.
Summary
In summary therefore I allow the plaintiff damages as follows:
Past loss of earning capacity $201,136.00
Interest on past loss of earning capacity $24,136.32
Future loss of earnings $357,576.66
Past loss of superannuation $13,596.00
Interest on past loss of superannuation $1,631.52
Future loss of superannuation $24,405.48
Gratuitous services $2,520.00
Interest on gratuitous services $302.40
General damages $45,000.00
Total$670,304.38
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