Blair Robert Kennedy v CCB (ACT) Pty Limited t/as Construction Conrol - [2012] ACTSC 120

MONICA MORALES
v
COMMISSIONER FOR SOCIAL HOUSING
[2012] ACTSC 117 (13 July 2012)

NEGLIGENCE – occupier’s liability – action by tenant against landlord – public housing – concrete path raised by tree roots – height difference of 5 cm – plaintiff tripping and falling – application of Ch 12, Civil Law (Wrongs) Act 2002 – contributory negligence by plaintiff.
DAMAGES – personal injury – trip and fall on concrete path – head, neck, shoulder, low back and knee injuries – no issue of principle.

Housing Assistance Act 1987 (repealed)
Housing Assistance Act 2007
Civil Law (Wrongs) Act 2002, Ch 4, 8, ss 102,168

Neindorfv Junkovic (2005) 80 ALJR 341
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Jandson Pty Ltd v Welsh [2008] NSWCA 317

EX TEMPORE JUDGMENT

No. SC 71 of 2008

Judge: Master Harper
Supreme Court of the ACT

Date: 13 July 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 71 of 2008
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:MONICA MORALES
Plaintiff

AND:COMMISSIONER FOR SOCIAL HOUSING
Defendant

ORDER

Judge:  Master Harper
Date:  13 July 2012
Place:  Canberra

THE COURT ORDERS THAT:

judgment be entered for the plaintiff for $98,471.85.
the defendant pay the plaintiff’s costs.

This is an action for damages for personal injury by the tenant of a government house against the Commissioner for Social Housing, a statutory officer who administered the ACT public housing system under the Housing Assistance Act 1987 (repealed) under the title ‘Commissioner for Housing’ and continues to do so under the 2007 Act of the same title.
The plaintiff is a widow, now aged 54. She was born in Chile and migrated with her husband and four children to Australia in 1985. She has lived in public housing in Canberra since 1986 and at her present house in the northern suburbs of Canberra since about 1990.
The claim arises out of a trip and fall on a concrete path in the front garden of the house on 11 August 2005 at about 5.15 pm. The path consisted of rectangular concrete slabs. The slab on which the plaintiff tripped was cracked and pushed up by underlying tree roots so that its end was about five centimetres higher than the adjoining end of the next slab.
The plaintiff was the tenant of the house, having signed a tenancy agreement on 1 September 1992. The agreement was in a standard form used by the defendant at that time. Her English was and remains poor. Her native tongue is Spanish. She did not have an interpreter or translator to help her when she signed it. It must have been apparent to the officer who witnessed her signature that she was incapable of reading and of understanding the intricacies of the document.
The agreement listed the family members who were to reside at the house. It included the following clauses:
Clause 8
The tenant will keep the said land clean and tidy and maintain any paths and hedges thereon in good order to the satisfaction of the commissioner.
Clause 10
The tenant will permit any responsible officer or representative of the Commissioner to enter at all reasonable times for the purpose of viewing the condition of the premises and upon receiving notice to do so, the tenant will repair and make good all defects therein [subject to exceptions as to fair wear and tear, and damage, for example by fire, flood and earthquake.]
Clause 12
The tenant will permit the Commissioner, his or her agents, servants and workmen at all reasonable times to enter and carry out repairs and for the purpose of ensuring that the terms and conditions of the agreement are being observed.
The roots which caused the damage to the path were the roots of a large deciduous tree which overhung the house, causing other problems; in particular, leaves blocking the gutters leading to water damage. The plaintiff’s daughter gave evidence that she vaguely recollected children tripping on the path hazard in the 1990s. In 2000, the tree was removed. I am satisfied that by then the path was in much the same state as it was at the time of the plaintiff’s fall.
The defendant’s officers included a number of housing managers, each responsible for some 240 rented houses. Each housing manager inspected each house once a year by appointment in the presence of the tenant or an adult resident of the house. The housing manager noted any shortcomings by the tenant in looking after the house and grounds and also noted any complaints made by the tenant as to matters which were the responsibility of the Commissioner to fix under the agreement.
Checklists signed by the housing manager and the tenant as to a number of annual inspections of the plaintiff’s house are in evidence. They demonstrate a number of matters required to be attended to by both the tenant and the Commissioner, for example, painting, and removal of unsightly old motor vehicles, but no record about the path, either of a complaint by the tenant or of any observation of a hazard by a housing manager.
The printed checklist drew the housing manager’s attention to the rooms in the house in some detail, but not to the grounds, except for a line with the word “external”. In particular, there was no reminder to a housing manager specifically to check concrete paths on the block of land.
At 5.15 pm on 11 August 2005 the plaintiff was carrying a bag of garbage from the house to the bin outside. This took her along the concrete path. She tripped on the raised paving slab and fell forward, coming into contact with the bonnet of her car, which was parked on the grass nearby, and with the path itself. She suffered personal injury. She was taken to Calvary Hospital and treated as an outpatient.
On the following day, she notified the housing manager, then Mr Peter Moran. Her recollection is that she attended his office to do that. He went to the house that same day and took photos of the path. He generated a report, which included a description of the hazard in the following terms:
Path to drive has serious trip hazard. Concrete has risen seriously out of alignment. Height difference approximately 5 cm.
The report included what were headed “Special instructions to contractor”, which were as follows:
Requires attention ASAP. Tenant had a serious fall as a result of the trip hazard on the path from house to the driveway. See attached photos.
The photos are in evidence and are consistent with this description. The last inspection by a housing manager had been carried out by Mr Moran on 16 June 2005, a few weeks before the plaintiff’s fall. His inspection report recorded a number of entries as to the various rooms in the house, but nothing about the path or indeed, the property outside the house, except for noting that two broken fence palings needed replacement. Mr Moran at that time also authorised some internal repainting.
He gave evidence that he could explain his failure to notice the path as a hazard only by the assumption that a car must have been parked over it. He conceded that he had no positive recollection of seeing any particular car parked there. The evidence of the plaintiff and her daughter was that cars were never parked across the path. It is apparent from photographs in evidence that cars were parked close to the path, but I accept the plaintiff’s evidence that cars were not parked across it.
The plaintiff’s evidence is that she had complained to housing staff on a number of occasions about the path. I accept that she probably attempted to do so, but her English is poor and it is feasible that she did not succeed in making herself understood. I am satisfied that she did not draw the hazard to Mr Moran’s attention on 16 June 2005. I am sure he would have noted it and recommended remedial action if she had done so, although I recognise that such a hazard may not be seen as so dangerous before a fall as after it. That comment applies to the plaintiff and to her family, as well as to housing managers.
Nevertheless, I am satisfied that the hazard was there to be seen and should have been recognised as a danger which required repair. It was repaired at modest cost within a few weeks of the plaintiff’s fall. Counsel for the defendant does not suggest that the cost of rectification in the context of the funding available to the defendant is a factor relevant to liability.
The plaintiff’s claim has been brought in negligence with reference to s 168(4) of the Civil Law (Wrongs) Act 2002:
This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on premises in relation to any dangers to them.
“Occupier” is defined in subsection (6) to include a lessor under an obligation to a tenant to maintain or repair or a lessor who could exercise a right to enter to carry out maintenance or repairs.
Counsel for the defendant concedes that his client was an occupier as defined, while making the point that the plaintiff was herself also an occupier of the premises. By virtue of s 168(1), an occupier owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury because of the state of the premises or anything omitted to be done about the state of the premises.
Section 168(2) lists a number of matters which must be taken into account in deciding whether the duty of care has been discharged. These include, relevantly, paragraph (a), the gravity and likelihood of the probable injury; paragraph (f), the ability of the injured person to appreciate the danger; and paragraph (g), the burden of removing the danger as compared to the risk.
Chapter 8 of the Civil Law (Wrongs) Act contains provisions as to liability of public authorities in tort. The defendant is a public authority, but nothing in the chapter bears on the issues to be determined in this case.
Chapter 4 of the Act deals generally with negligence, including duty of care, standard of care and causation. It is unclear whether the legislature intended Chapter 4 to apply to claims against an occupier under Chapter 12. Militating against its application is the specification in s 168(3) of other provisions of the Act which do apply. These do not include Chapter 4. I do not need to determine this question in order to decide this case.
I am satisfied that the plaintiff suffered personal injury by reason of the state of the premises and that the defendant owed her a duty to take all care reasonable in the circumstances to ensure that she did not do so. I am satisfied that for at least five years before the fall, the hazard was obvious on inspection and should have been identified by the defendant through the annual inspection process.
Weighing the applicable factors in subsection 168(2), I am satisfied that the defendant failed to discharge its duty of care to the plaintiff and that her injury was a direct consequence of that failure.
Counsel for the defendant relies on the decision of the High Court of Australia in Neindorfv Junkovic (2005) 80 ALJR 341 in seeking to persuade me that the defendant did not breach the standard of care prescribed by the Civil Law (Wrongs) Act. In Neindorf, a visitor to a garage sale at a private house tripped on a concrete driveway because of a height differential of about 12 mm between two slabs. Their Honours considered that a degree of unevenness in suburban driveways was not uncommon. That decision, whilst binding as to principle, can be distinguished on its facts from this case, simply by reason of the height differential. In this case, it is of the order of 5 cm, as compared with 12 mm in Neindorf. That is about four times the differential. Twelve millimetres can be seen as mere unevenness, whereas five centimetres is enough to be a trip hazard, as Mr Moran recognised when he inspected the path the day after the plaintiff’s fall.
The defendant pleads contributory negligence, both in failure to keep a proper lookout and in failure to inform the defendant of the hazard. I am not satisfied that the defendant has established the asserted failure to inform, but I am satisfied that the plaintiff was not looking where she was going. The hazard was there to be seen. It is common ground that it was still daylight and additionally, the plaintiff was well aware of the hazard.
Senior counsel for the plaintiff submits that I should treat the plaintiff’s conduct as mere inadvertence not amounting to contributory negligence, by analogy with the decision of the High Court in the employer-employee decision Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, which was applied by the New South Wales Court of Appeal in an occupier’s liability context in Jandson Pty Ltd v Welsh [2008] NSWCA 317 (unreported).
On the facts of the present case, the plaintiff’s failure to keep a proper lookout went beyond mere inadvertence and amounted, in my view, to a failure to take reasonable care for her own safety. Section 102 of the Civil Law (Wrongs) Act requires me to reduce her damages to the extent I consider just and equitable, having regard to her share in the responsibility for the damage. I am of the view that the appropriate reduction is 25%.
As to damages, the plaintiff suffered a head injury and injuries to the knees and right shoulder. She briefly lost consciousness. She aggravated an injury to the low back she had suffered in 1992, which had then put her out of work as a cleaner, but which by the time of the fall required little, if any, treatment, although she had never returned to the paid workforce.
She injured her neck, probably rendering what had been previously asymptomatic degenerative changes painful and causing restriction of movement. Using her right hand to break her fall, she tore a tendon in the right shoulder. During 2006, she had orthopaedic surgery to the right shoulder and the right knee.
Her recovery was complicated by a car accident in July 2008 when the car she was driving collided with the rear of another car in circumstances which I was told were non-compensable, worsening her low back and neck pain and aggravating the condition of her left shoulder.
In May 2011, her husband died of cancer. Her children have all left home. She lives alone. I have taken into account reports of her treating orthopaedic surgeon, Dr Stubbs, and of Dr Le Leu, an occupational physician qualified by the solicitors for the defendant. Other medical records are also in evidence.
Treatment expenses are agreed at $7,550.80, of which the plaintiff has paid $838.00, attracting interest, which I allow at $500.00 to date. The plaintiff’s claim for $4,500.00 for future treatment expenses was not opposed in closing submissions by counsel for the defendant and I allow that amount. There is no claim for loss of earnings or of earning capacity. A claim is made for assistance, made necessary by the injuries, provided without charge by family members. The amount claimed and not opposed in closing address is $19,075.00 to date, plus interest of $2,670.00, both of which I allow.
For the future, the plaintiff claims $19,915.00 on the assumption that 10% of her continuing needs are due to the injuries sustained in her fall. Counsel for the defendant submits that I should allow no more than $10,000.00 for this future component. This is not an area where a mathematical approach can be made. It is rather an area for the discretion of the court, based on all of the known present factors and a broad overview of what the future may hold for the plaintiff. For the future care component, I allow $15,000.00.
For general damages for pain and suffering, loss of amenities and loss of enjoyment of life, senior counsel for the plaintiff seeks an award of $80,000.00. Counsel for the defendant acknowledges that a substantial award is justified, but submits that $60,000,00 would be adequate. After consideration, I have come to the view that a proper figure for general damages is $75,000.00 and I allow that amount.
The general damages should be apportioned as to two-thirds to the past and one-third to the future for the purposes of the calculation of interest. I arrive at a figure of $7,000.00 for interest on the past component.
The individual components then are: general damages, $75,000.00; interest thereon, $7,000.00; treatment expenses past, $7,550.80; interest thereon, $500.00; future treatment expenses, $4,500.00; Griffiths v Kerkemeyer component past, $19,075.00; interest thereon, $2,670.00; future, $15,000.00.
Those figures make a total of $131,295.80. That sum seems to me to reflect adequately the damage caused to the plaintiff by the negligence of the defendant. The figure must be reduced by 25% for the plaintiff’s contributory negligence, which reduces it to $98,471.85. There will be judgment for the plaintiff for that amount.
I order that the defendant pay the plaintiff’s costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 20 July 2012

Counsel for the plaintiff:  Mr RL Crowe SC
Solicitors for the plaintiff:  Maurice Blackburn
Counsel for the defendant:  Mr SH Pilkinton
Solicitors for the defendant:  ACT Government Solicitor
Date of hearing:  10, 11 July 2012
Date of judgment:  13 July 2012