Bradley Vance v Daramalan College Limited
[2003] ACTCA 13
BRADLEY VANCE v DARAMALAN COLLEGE LIMITED
[2003] ACTCA 13 (6 August 2003)
NEGLIGENCE – occupiers liability – entrant to premises aware of construction work – poor lighting – breach of duty of care.
CONTRIBUTORY NEGLIGENCE – poor lighting – knowledge of condition of surface and of construction work.
Posnet Pty Ltd v Wood & Brown [2002] ACTCA 5 (8 November 2002)
Garvan v ACT [2003] ACTCA 4 (27 February 2003)
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512)
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492; 59 ALR 529
Gloria Jean McFarlane v The Australian National University (FCAFC; Toohey, Davies and Kelly JJ; 17 September 1982; unreported)
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 35 - 2002
No. SC 433 of 1998
Judges: Higgins CJ, Crispin P, Ryan J
Court of Appeal of the Australian Capital Territory
Date: 6 August 2003
IN THE SUPREME COURT OF THE ) No. ACTCA 35 - 2002
) No. SC 433 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BRADLEY VANCE
Appellant
AND:DARAMALAN COLLEGE LIMITED
Respondent
ORDER
Judges: Higgins CJ, Crispin P and Ryan J
Date: 6 August 2003
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The award of $180,866 to the appellant is set aside and, in lieu thereof, the appellant is awarded $414,733. The judgment appealed from is varied accordingly.
The respondent pay the appellant’s costs of this appeal, as well as the whole of the costs of the proceedings before the Master.
IN THE SUPREME COURT OF THE ) No. ACTCA 35 - 2002
) No. SC 433 of 1998
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM THE MASTER OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BRADLEY VANCE
Appellant
AND:DARAMALAN COLLEGE LIMITED
Respondent
Judges: Higgins CJ, Crispin P and Ryan J
Date: 6 August 2003
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from a decision of Master Connolly (as he then was) handed down on 22 November 2002. Judgment was entered for the plaintiff/appellant in the sum of $180,866. On 6 December 2002 a further order was made as to costs. The defendant/respondent was ordered to pay the plaintiff’s costs up to but not after 2 October 2002.
The appellant’s complaint is that the learned Master reduced the damages otherwise payable by the defendant by 50% on account of contributory negligence on the part of the plaintiff. But for that finding, it is conceded that the order for costs would not have been limited as it was.
The respondent had, at the trial, conceded negligence. It does not now resile from that concession but seeks to support the Master’s finding as to contributory negligence.
Neither party seeks now to disturb the factual basis for the Master’s finding as to contributory negligence.
The appellant also contends that the assessment of damages for loss of future earning capacity, assessed by the Master at $75,000, was inadequate.
THE JUDGMENT OF THE MASTER
The appellant was employed as a relief driver for a milk vendor on various early morning rounds. For three days prior to his accidental injury he had been making a delivery of two crates of milk to the tuckshop at Daramalan College at Dickson in the Australian Capital Territory. The three previous deliveries had gone without untoward incident. It was the fourth delivery which resulted in his injury.
He had been instructed to back his milk truck down a driveway open to Cowper Street to a point close to the door of the tuckshop. He was to open the door of the tuckshop, place the milk inside and then close it. There was a light in the rear compartment of the milk truck that illuminated the space between the rear of the truck and the door. There were also perimeter lights illuminating the grounds, but they were timed to go off at about 5.20 am. The appellant’s delivery was at or after 5.30 am. The area would not have been illuminated by the light of the dawn until an hour or so later.
That system, even without the school’s lights being illuminated, was reasonable enough to enable any obvious hazards like bins or boxes to be observed and avoided. Unhappily, the situation did not so remain.
To the right of the driveway and at the end of it closest to the tuckshop entrance, a two storey extension was being constructed to the Sharpe Building.
Progressively, building debris, including rubble, was deposited in the area at the end of the driveway. A low plastic tape barrier, about two feet high, was erected between the end of the driveway and the entrance to the tuckshop.
It seems that this barrier was intended to warn those on the school side of it not to enter the construction site. Vehicles that might wish to remove the rubble and other debris still had unimpeded access to it from Cowper Street. No barrier or warning sign was erected to prevent visitors, including the appellant, from entering the construction site from Cowper Street.
On each of the three previous occasions, the state of the rubble and other debris was different. On 17 July 1997, the fourth occasion, there was more debris than before. The appellant had to stop even further away from the tuckshop entrance than before. Indeed, he stopped on the street. This removed any prospect of assistance from the illumination cast by the rear compartment of the milk truck. The school’s outside lights had gone off at 5.20 am. There was heavy fog.
That did not prevent the appellant from being able to see that there was rubble and building material on the ground in front of him.
As he deposed (AB 60):
“Could you see the ground as you walked along on the day you fell?---Yes.
And could you see that there was rubble and building material on the ground in front of you?---Yes.
And could you see those parts of the ground surface that didn’t have rubble and building materials on it?---There wasn’t much ground area that didn’t have anything on it.
But whatever else has to be said, you could see it, couldn’t you?---Well, what’s directly in front of you, yes.
And well of course, the shadow of your body would be covering what’s directly in front of you, wouldn’t it?---Shadow – virtually no shadow at night.”
To get to the tuckshop door, the appellant had to pick his way over successive piles of rubble. He did not attempt to drive the truck in forwards, with the headlights shining forward. He had been told to back in, which enabled him to emerge front first into Cowper Street. He thought he could see where he was going sufficiently to carry out his duties without mishap.
The injury had occurred when, as the appellant said, he: (AB49)
“…tried to follow the route that I normally go and – or take the truck and I went over a pile of rubble and stumbled over that and landed on marine ply plank, tried to save the milk.
What happened to you when the plank …? --- I stumbled forward trying to save the milk, I had a twinge in my lower back …”
He went down on his knees, holding the crates, though one spilled its contents. He picked them up and continued on, despite the pain in his back.
It was suggested to him he might have deferred the Daramalan delivery until later, but he responded that such a course could have inconvenienced some later customers. He did concede though, that, if Woolworths, a big customer, was blocked by other trucks, its delivery might be deferred in favour of other Dickson customers.
As to his perception of the risk he was asked: (AB 63)
“See, even though if you knew it was going to be unsafe to walk in there, didn’t you – dangerous to walk in there, didn’t you?---I didn’t know it was going to be dangerous to walk in there, no.
But you’d walked in there on the night before and the night before that with heaps of rubble and building materials in a dark place on the ground?---Yes, and nothing happened.”
The appellant agreed that, in hindsight, it had been dangerous for him to have proceeded as he did.
DECISION TO FIND CONTRIBUTORY NEGLIGENCE
The Master first contrasted the situation, as he found it to be in this case, with that in McLean v Tedman (1984) 155 CLR 306. In that latter case it was pointed out that not every act of carelessness on the part of a plaintiff will amount to contributory negligence.
The passage from that case, partly cited by the Master, from p 315, reads as follows:
“As Windeyer J. observed in Sungravure [(1964) 110 CLR 24, at p 37], when an employee in a factory sustains injury, the jury in considering contributory negligence may have regard to ‘inattention bred of familiarity and repetition, the urgency of the task, the man’s preoccupation with the matter in hand, and other prevailing conditions’. It is then for the tribunal of fact to determine whether any of these things caused some temporary inadvertence, some inattention or some taking of a risk, ‘excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man’. His Honour went on to reject the suggestion that the approach applicable in the case of injury sustained in a factory was inapplicable to activities elsewhere, specifically referring to activities upon a highway.”
That case involved a garbage collector suing his employer, who had sanctioned a method of working which involved employees darting across roads in the face of oncoming traffic. In the joint judgment (Mason, Wilson, Brennan and Dawson JJ) it was concluded, as the Master acknowledged, that the appellant had not been guilty of contributory negligence, though he had failed on the occasion of his injury to note an oncoming vehicle. Why?
As their Honours stated at 315-316:
“In concluding that the appellant’s conduct amounted to mere inadvertence, inattention or misjudgment, the following factors have impressed us as being significant: (a) the prevailing condition of poor light unquestionably diminished his ability to pick out the vehicle and locate its speed and position accurately; (b) performance of his task necessarily involved preoccupation with the matter in hand; (c) at the relevant time he was carrying on his right shoulder a humper whose capacity ranged between four and eight household garbage deposits; (d) the carrying of this humper on his right shoulder when running across the road would very considerably restrict his capacity to observe an oncoming vehicle and assess its speed accurately; and (e) in order to retain his employment as a garbage collector he was expected to run across the road and keep up with the truck as it moved forward.”
The Master recognised that these comments were apparently applicable to the situation in which the appellant found himself, but distinguished them on the following basis:
“These are indeed appropriate considerations in the context of a claim against the employer, whose duty to provide a safe system of work is in issue. The present action, however, is not brought against the employer, but the College as occupier of the premises, and it seems to me that the degree of latitude that the courts have given in respect of an employment claim does not necessarily flow on to an occupiers claim. The occupier of land, it seems to me, cannot be expected to know and take into account that an entrant may be an employee who is under pressure or otherwise inadvertent. The occupier is, on High Court authority, entitled to assume that any entrant will be exercising reasonable care.”
The Master concluded that, in any event, the appellant’s “want of due care for his own safety here” went “well beyond mere inadvertence”. He said: [17](AB16)
“The plaintiff here was aware over the prior three mornings that the area near the tuckshop was a building site, and that the light was poor, and yet he elected to walk, in the dark, carrying two crates, over piles of rubble, rather than drive his truck in with the headlights on, or do another delivery and return when the light was better or to use a torch.”
That, the Master found, warranted a finding that each of the parties was equally culpable.
WAS THE FINDING OF CONTRIBUTORY NEGLIGENCE JUSTIFIABLE?
This is the main issue on this appeal.
There are two issues canvassed in the Master’s reasons. The first is the scope of the duty of the respondent.
It is appropriate to observe, as the Master did, that an occupier will, ordinarily, be entitled to assume that entrants on to the premises will act reasonably and not engage in risk-taking behaviour – see for example, Posnet Pty Ltd v Wood & Brown [2002] ACTCA 5 (8 November 2002). That case also illustrates however, that past experience may put an occupier on notice that some forms of risk-taking behaviour should be anticipated and that precautions against them cannot, as a result, be ignored.
It is also reasonable for an occupier to assume that obvious hazards will be avoided by the reasonable entrant. Again, that may well depend on whether the hazard, obvious enough in some circumstances, will be so if obscured by darkness, distractions or other foreseeable circumstances so as to pose a risk that is not obvious and avoidable (see, for example, Garvan v ACT [2003] ACTCA 4 (27 February 2003)).
However, the scope of the duty of an occupier towards an entrant onto the premises does not define the scope of the entrant’s duty to take care for his or her own safety. That duty is owed by the entrant, not to the occupier, but to the entrant himself or herself.
It is only once it is determined that the entrant has been guilty of contributory negligence that the relative degrees of contribution of the respective negligence of the parties to the resultant injury can be assessed.
In this case, it was not open to the Master to find that the respondent had not owed a duty of care to the appellant, nor that it had not breached that duty so as to cause injury to the appellant.
Liability was admitted. Whilst that may have diverted attention from the implication of that admission, that admission necessarily conceded that the test for scope and breach of duty had been met (see Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512).
The Master seems to have treated principles qualifying the scope of an occupier’s duty of care as defining the scope of a correlative duty of care on the part of an entrant towards his or her own safety. Whilst, as we have mentioned, the Master referred to the High Court’s decision in McLean v Tedman, he suggested that the “degree of latitude” that the courts have given in employment claims cannot necessarily be applied in claims against occupiers of land.
We are unable to agree that McLean v Tedman can be distinguished in this manner. It is true that an occupier may not have been responsible for the system of work that gave rise to any risk of inattention due to repetition or the familiarity of the task. However, in considering any issue of contributory negligence the decisive question is whether the defendant has proven that the plaintiff’s injuries were, at least partially, attributable to a failure to take reasonable care for his or her own safety in the circumstances then prevailing. It is, in our opinion, appropriate to take into account all of the circumstances affecting his concentration and judgment, including potential distractions unrelated to any conduct of the defendant such as the need to control boisterous children or, more relevantly, the duties of his or her employment.
In the present case, the duties of the appellant’s employment required him to deliver milk to the respondent’s premises and to do so within a limited time frame. The fact that he was required to cross an area of land which the respondent had negligently permitted to be strewn with building rubble obviously presented him with a dilemma. To have proceeded would obviously have involved negotiating what had become difficult terrain, but to have not proceeded would have involved failing to complete the task allocated to him by his employer and depriving the respondent’s pupils of milk. In these circumstances, he was plainly required to make a judgment as to whether he could safely carry the milk crates to the tuckshop, notwithstanding the rubble in his path.
Whilst his evidence as to the manner in which he assessed the situation was somewhat limited, he did say that he had not known that “it was going to be dangerous to walk in there” and observed that he had safely made the same trip on three previous mornings. The Master did not express any doubt as to the truthfulness of the appellant’s evidence and there is no reason to suppose that the appellant had not believed that he could safely traverse the area again. As it happened, he fell over a pile of rubble and, with the benefit of hindsight, he conceded that it had not been safe. However, the question of whether he was guilty of a lack of reasonable care for his own safety cannot be answered by reviewing his decision in the glow of hindsight.
No-one else was present to form a similar impression of the terrain, in the limited light available at that time of the early morning, and no photographs of the rubble, even in full daylight, were annexed to the appeal books. People have, of course, traversed rough, stony and broken ground for millennia and the mere presence of building rubble did not, of itself, prove that the area would have appeared to the appellant to have been so potentially dangerous that any attempt to cross it would necessarily have involved a failure to take reasonable care for his own safety. Lacking, as we do, the capacity to see the area as the appellant did that morning, we are unable to conclude that his judgment was so flawed that the decision to proceed involved such a failure to exercise reasonable care as to amount to contributory negligence. Issues of judgment, as well as inattention, must be evaluated in context and, if there was some measure of risk, we are unable to say that it was not “excusable in the circumstances because not incompatible with the conduct of a prudent and reasonable man” per Windeyer J in SungravurePty Ltd v Meani (1964) 110 CLR 24 at 37; cited in McLean v Tedman at 315.
The Master considered that the appellant had made three identifiable errors of judgment referred to above which, in his view, supported a finding of contributory negligence.
The first, was in not entering the laneway with his headlights shining down towards the tuckshop entrance. It is true that that would have supplied low level, forward illumination. However, it would not, as a higher light source would, illuminate the downside of a pile of rubble facing the appellant. Indeed it would further obscure it. In any event, it would be a departure from the usual method of doing things, so far as the appellant was concerned.
The second, to delay the delivery until after the light had improved, also required the appellant to depart from his usual practice. Nor was it a departure that was an obvious choice. To delay one delivery would inevitably delay others. It did not occur to the appellant to disrupt the set schedule more than was necessary to achieve the delivery. In any event, the appellant had achieved three previous deliveries without mishap. Although the placement of rubble and debris was different from the previous occasions, it could not be said to have been an apparently unreasonable risk for the appellant to proceed in those circumstances, rather than to delay or abandon the delivery.
The third, that the appellant could have used a torch, is not sustainable. It was not a specific suggestion by the defence. There was no evidence a torch was available. In any event, carrying a torch whilst carrying two crates of milk would be more than a little challenging.
In essence, the criticism of the appellant is no more powerful than that levelled against the plaintiff in Gloria Jean McFarlane v The Australian National University (FCAFC; Toohey, Davies and Kelly JJ; 17 September 1982; unreported).
In that case, the plaintiff became trapped in darkness on an internal staircase when the lights were extinguished. She was carrying two buckets full of cups and saucers. She attempted to descend the remaining stairs in the dark to find a landing on which to place the buckets safely. The trial judge found she was negligent in not first putting down the buckets, in order to use the stair rails, notwithstanding any damage which may then have resulted to the cups and saucers if she had missed placing them squarely on the tread of a step.
The Full Court considered that conclusion unsustainable. (p3)
“Was there, in the present case, a departure from the standard of care to be exercised by a person finding himself or herself in the position of the appellant? Counsel for the respondent rightly pointed out that this was not a case of momentary inattention and that the appellant had time in which to make a considered decision as to what she would do. Nevertheless she had been placed in a position of danger by the negligence of the respondent and she was in a dilemma as to what course she could take. To hold the appellant to have been negligent in those circumstances, it is not enough to show, if it be the case, that a course of action alternative to the one she took might have been taken with greater likelihood of safety.
The same may be said of this appellant. He attended the College at the usual place and time to make the usual delivery of milk. He could have decided that the increased incidence of rubble and debris made it preferable not to continue. However, it was his duty to make the delivery and he had negotiated the previous quantities of rubble and debris. He considered he could do so again. He did not think of the possibility of using the headlights of the truck and, in any event, that would not have diminished the objective risk. The admission of liability conceded the respondent’s foresight of the appellant so proceeding. The appellant was mistaken in his decision and, in hindsight, it would have been safer for him not to have proceeded.
It was, however, a classic case of misjudgment when placed, by the negligence of the respondent, in a dilemma. It does not, in our view, constitute contributory negligence. No question of apportionment therefore arises. The finding of contributory negligence is not sustainable. It must be set aside and the verdict recalculated accordingly.
THE LOSS OF FUTURE EARNINGS
There was no doubt that the injury the appellant sustained was a serious one. The appellant, as noted above, challenges as inadequate only the assessment of the head of damages concerning the diminution of future earning capacity.
There was no dispute concerning the factual basis for the award the Master made. The Master said: [28] AB 19 & [33] AB 21
“28.I accept that the medical condition caused by the accident would have precluded the plaintiff from continuing with heavy physical work. His evidence was that he had not been a great scholar at school, and his only jobs have been labouring type jobs, although he did work as a petrol station attendant for a time in his youth. He agreed that he had made little attempt at retraining until in February and March 2000 he undertook a five-week course at the CIT in computers, and in July 2000 commenced a course in computer servicing. He failed in the first exams, but sought to re enter in 2001, only to learn that the course was not being offered that year. He has enrolled in 2002 in a correspondence course from Sydney TAFE as a computer technician, and he said that he was doing well. He enjoys the work, and has done some computer repair and maintenance work for friends, and has a small workshop at his home. He acknowledged that his wife, who had left the workforce, has gone back to work since he has been out of work, and with his compensation payments the family is not significantly disadvantaged, and Mr Parker submitted that this should be seen as a factor in relation to his lack of efforts to obtain suitable employment that avoids heavy lifting.”
And:
“33The plaintiff’s future economic loss claim was based on four years of ongoing loss at $600 net per week to cover retraining, and then a buffer for the difference between his potential future earnings and his prior earnings. Mr Parker for the defendant submitted that this should be discounted for the fact that he has made no real efforts until recently to undergo retraining, but he accepted that there should be a buffer to reflect the period for retraining for appropriate employment. Mr Vance is interested in computer technician work, and is motivated and apparently doing well in the course. I would award a buffer for future economic loss in the sum of $75,000 inclusive of future superannuation.”
The appellant submits that $75,000 is insufficient, even granted that a “buffer” is appropriate. The term “buffer” may, as the Full Court of the Federal Court in Fry v McGufficke [1998] FCA 1499 (26 November 1998) observed, be better expressed otherwise. However, it is an appropriate means of describing an inexact calculation or valuation of a loss. It reflects an in globo assessment, rather than the conventional approach of assessing the remaining working capacity and valuing that by reference to the relevant actuarial tables. The correct approach to the appellant’s complaint of inadequacy is that endorsed by the Full Court in that latter case.
In that case, their Honours (Black CJ, Foster, Madgwick, Finkelstein and Dowsett JJ) observed:
“There is an interesting debate about whether, in contrast to an award of damages under the head of pain and suffering, an award for future loss of earning capacity is “discretionary” so as to attract the well-known principles that restrain appellate courts from too ready interference with discretionary judgments at first instance: see, for example, the difference of views expressed in Moran v McMahon (1985) 3 NSWLR 700. It may be assumed in the plaintiff’s favour that she need not strictly satisfy those tests. Nevertheless, as Barwick CJ pointed out in Wilson v Peisley (1975) 50 ALJR 207 at 209, the less ‘ponderable the elements of damages under consideration the less likely will there be a case for setting aside the award’. Accordingly, to show demonstrable error of the kind asserted, the plaintiff would need to satisfy us that, granted that (as we have held) an intuitive rather than an arithmetical assessment was permissible, the result nevertheless was quite out of the range of a sound approach to such an assessment.”
The Master appears to have accepted that all previous work occupations in which the appellant had engaged would be denied to him as a result of his injury. However, he was able to re-train. The loss for the period of four years, representing the re-training period, was said to be $600 net per week. The value of that lost four years, before any discount for contingencies, would be $118,200. That is a conventionally calculable part of the total loss. But there was also a continuing loss of earning capacity beyond the re-training period, not susceptible of mathematical calculation, for some time beyond the period of four years until the appellant (date of birth 3 December 1961) reached a conventional retirement age. Some of that would have involved a “catch-up” to his past earnings level, but there would remain greater susceptibility to unemployment or under-employment for the remainder of the appellant’s working life.
There had, the appellant agreed, been some delay before he undertook re-training. He had, however, been undergoing rehabilitation therapy until about mid 2000 (see AB 53). He had commenced a computer servicing course in mid 2000. He found it difficult to continue that course due to the need to sit for four hours at a session and his concentration span had been difficult to maintain. He attempted to re-enrol in 2001 but could not be enrolled until 2002, (AB53-55). More latterly, he has been coping quite satisfactory.
The respondent had submitted, in effect, that the delay in undertaking re-training could and should have reduced the amount otherwise warranted for future loss of earning capacity. Though noting that submission, the Master did not express a view accepting or rejecting it.
For our part, the unchallenged medical evidence and the evidence of the appellant, unchallenged in cross-examination, would not have permitted the acceptance of that criticism made of the appellant. The delay, as the relevant medical experts (for example, Dr R C Hudson AB 148-9) accepted, is consistent with the appellant’s need to be rehabilitated both physically and psychologically, even to get to the stage where he was fit for re-training. That is, he undertook re-training as soon as he was physically and psychologically fit to do so.
There was a calculation of past wage loss up to the date of judgment (22 November 2002). That had included some allowance for the period of the re-training commenced in 2002. It was conceded in argument that allowing for this and a “catch-up” period a present loss of $83,000 to the conclusion of re-training would be a reasonable assessment of the future loss over the balance of the re-training period. It seems to us that a total of $130,000 is appropriate as a “buffer” for the ongoing diminution of earning capacity inclusive of the re-training period. That figure should be substituted for the $75,000 assessed by the Master.
It follows that the appeal should be upheld and the award of $180,866 be set aside. In lieu thereof, there should be an award of $414,733 including that further allowance. The sum for which judgment was entered should be amended accordingly.
The respondent should pay the appellant’s costs of this appeal, as well as the costs of the whole of the proceedings before the Master.
I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 6 August 2003
Counsel for the Appellant: Mr R L Crowe
Solicitor for the Appellant: Pamela Coward & Associates
Counsel for the Respondent: Mr G Parker
Solicitor for the Respondent: Dibbs Barker Gosling Lawyers
Date of hearing: 8 May 2003
Date of judgment: 6 August 2003
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