Bulmer v Port Stephens Council

[2007] NSWDC 205

CITATION:	BULMER v PORT STEPHENS COUNCIL [2007] NSWDC 205
HEARING DATE(S):	26-27/9/07
EX TEMPORE JUDGMENT DATE:	28 September 2007
JURISDICTION:	CIVIL
JUDGMENT OF:	Sidis DCJ
DECISION:	Stood over to 3 October 2007 at 9.30am for mention to appoint a date to deal with the costs issues and the making of final orders.
CATCHWORDS:	Occupiers liability - foreseable risk - reasonable response
CASES CITED:	Phillis v Daly (1988) 15 NSWLR 65 Wyong Council v Shirt (1980) 146 CLR 40
PARTIES:	Geoffrey BULMER - Plaintiff PORT STEPHENS COUNCIL - Defendant NORTHERN BLUES RLFC INC - Cross defendant
FILE NUMBER(S):	Newcastle 188/06
COUNSEL:	P J Kirby - Plaintiff P R Cummings - Defendant - Cross claimant A J Hourigan - Cross defendant
SOLICITORS:	Turnbull Hill Lawyers - Plaintiff Moray & Agnew - Defendant - Cross claimant Shearman Lawyers - Cross defendant

JUDGMENT

1 Geoffrey Stewart Bulmer retired in 2001 and moved with his wife to Anna Bay. Mrs Bulmer found employment in Newcastle. Mr Bulmer, a man of some experience and skill in management and administration, became involved in the activities of the Northern Blues Rugby League Football Club Inc. He became the secretary of the club in March 2004. The club played its home games at Tomaree sporting complex and used the oval and the building at Tomaree occupied and controlled by Port Stephens Council.

2 The facilities were used pursuant to a sporting facility use agreement between the club and the council dated 19 February 2004, part of which is in evidence as exhibit 6. The building was used during the football season for home games and at various times for functions and meetings. The upper storey of the building comprised a number of components including a main function area, the Elizabeth Waring room, and two storage areas referred to as multi-rooms.

3 On 11 February 2005 in the course of removing equipment stored in multi-room one, a stack of eight collapsible tables fell on Mr Bulmer’s right leg, causing him injury. He claims that the council is responsible for the injury by reason of various acts of neglect in the way in which the tables were stored. The council denies any responsibility for the plaintiff’s injury. A cross-claim against the club has been made, claiming contribution and indemnity. There was no issue that the council was the occupier of the building.

4 The issues were.

1. Precisely how the tables came to collapse on Mr Bulmer’s leg.

2. Whether those circumstances were the result of neglect on the part of the council in any of the respects set out in paragraph 5 of the statement of claim.

3. If so, whether the whole or any part of the council’s liability was the result of neglect on the part of the club.

4. The extent to which Mr Bulmer was injured and the extent of his ongoing disability for the purpose of assessment of compensation.

The precise circumstances of the accident

5 There was evidence that the club’s last home game prior to 11 February 2005 was played on 24 August 2004. After that club equipment was stored in multi-rooms one and two. A small function was held by the club in the Elizabeth Waring room on 25 January 2005 but no equipment was moved from either multi-room for that purpose. Thus, it was established that between 24 August 2004 and 11 February 2005 the club had not had access to multi-room one or multi-room two.

6 There was evidence that the Nelson Bay Bridge Club had some access to multi-room two for the intention of storing its equipment but had not been able to do so because of the club equipment still in that room. There was also evidence that a locksmith had been in multi-rooms one and two on 8 February 2005 to install a lock on the roller shutter which divided the two rooms internally. For this purpose it was apparent from a report (Exhibit K) by Rachel Wood, the council officer with responsibility for management of the building that the locksmith had moved some of the tables in multi-room one in order to access the roller door.

7 On 11 February 2005 Mr Bulmer attended at the building for two purposes. The first was to prepare for a pre-season training match which was to take place the following day, Saturday 12 February 2005. The second was to remove equipment from multi-room two at the request of Ms Wood who had arranged for this room to be made available for the Nelson Bay Bridge Club. He arrived at the complex in the morning of 11 February 2005. Also present were Mr Selwyn Mabbit and Mr Len Plimmer, who were club members and who had arrived to assist on a voluntary basis.

8 Mr Bulmer said that on that morning the equipment in multi-room one comprised:

1. Tables stacked and leaning against the wall to the left of the room and to the right, leaning against the roller shutter, dividing multi-rooms one and two. The tables on the right were stacked so that the folded legs faced away from the roller shutter.

2. Boxes which were component parts of a stand erected on the first floor balcony of the building on days when home games were played. Mr Bulmer’s evidence was that they were arranged across multi-room one in pairs by fitting one box into another. He said there were between eight and nine such boxes in the room.

3. A number of round bar tables.

4. Some tool boxes.

9 It was also apparent that there were some other component parts of the grandstand in the room.

10 Mr Bulmer’s evidence was that upon opening the door he assisted Mr Mabbit to load one of the grandstand boxes onto a trolley. Mr Mabbit then wheeled the box to the balcony. Mr Bulmer said he waited in multi-room one for Mr Mabbit to return, looking around for other component parts of the grandstand. While doing so he said the tables stacked against the roller shutter between the two rooms fell onto his right leg. This caused him to fall to the ground in considerable pain. He described the tables as heavy and their dimensions as of six feet by four feet six and one inch thick. He denied that the tables had been touched by him or Mr Mabbit at any time prior to their collapse.

11 There were two problems facing Mr Bulmer in this part of this claim. The first was in establishing the mechanism by which the tables fell. I have already noted that he denied that he or Mr Mabbit had touched them at any stage. He denied that anyone else had touched them. He stated in his evidence-in-chief that the tables were leaning against the roller shutter door. When tested in cross-examination he stated that they could have been vertical to the wall. He said he did not think that they had been leaning on the boxes. He could not explain how, if they had been leaning against the roller shutter, they had moved from an angle to a vertical position and then overbalanced in the opposite direction.

12 Secondly, there was inconsistency in the evidence concerning precisely what had been done in multi-room one before the tables fell. According to Mr Bulmer the incident occurred very soon after he and his companions had arrived and after only one of the eight to nine boxes had been removed by Mr Mabbit. Mr Bulmer agreed with the comment made in Ms Woods’ report that when all the equipment was in place, the room was congested. Photographs in evidence taken immediately after the accident show the fallen tables extending across the room. Notwithstanding Mr Bulmer’s assertion that only one box had been removed, it was clearly apparent that the room was virtually empty at the time the tables fell. His evidence in this respect was therefore clearly incorrect and it is not accepted.

13 The only other evidence concerning the condition of the room is contained in Ms Woods’ report. In that report she stated that she visited the room on 8 February and noted that the tables had been neatly stacked against the internal roller door. After the locksmith had been present she had returned and inspected the room. The tables had been replaced and stacked horizontally against the internal roller door. She said the room was congested, but it was tidy and it raised no obvious concern. She also said that there had been no previous reports or complaints in relation to the site.

14 Neither Mr Mabbit nor Mr Plimmer were called to give evidence, although they were outside the court at the time of the hearing. I regard their absence from the court as of some significance because obviously they would have been able to assist the court in determining what activities had taken place before the tables fell. I do accept that on the evidence of Mr Bulmer they were not present at the time the tables fell.

15 It was argued for the plaintiff that I ought to take into account the fact that Ms Wood was not called but her statement was tendered in evidence by the plaintiff, without objection by the other parties, so that I do have her evidence of the condition of the room three days prior to this incident.

16 The plaintiff relied upon a report of Dr Adams, which unfortunately for various reasons did not assist him. Importantly, his instructions did not coincide with the plaintiff’s evidence. In his description of how the injury occurred he stated that Mr Bulmer had remained in multi-room one in order to begin preparing the next box and that he was engaged in that process when the table fell, impacting with his leg.

17 He also stated that the tables were leaned against the wall to Mr Bulmer’s right. On page seven, he stated that the tables were apparently leaning at a steeper angle to the floor, probably only slightly less than ninety degrees.

18 On page eight, Dr Adams appeared to proceed on the basis that the roller shutter between multi-rooms one and two was fully open at the time the injury occurred so that the doors which collapsed had been unsupported by this roller shutter and had only a single point of contact with the wall. He then proceeded to state that if they had been almost vertical, contrary to the earlier suggestion that they had been leaning at a steep angle, moving air currents could have destabilised the tables and thus initiated the action.

19 Since Dr Adams conclusions are based upon facts which are not in evidence, they cannot be taken into account.

20 The result is that the evidence is not such that I can make findings as to precisely how the accident occurred. The evidence is such that I can find that it did not occur in the manner described by Mr Bulmer, that is, after only one box had been removed and without any further activity which might have disturbed or destabilised the stack of tables.

Was there negligence on the part of the council?

21 In argument I was referred to the decision of Phillis v Daly (1988) 15 NSWLR 65, and on referring to that case I was reminded of the comments of Mahoney J at 72 when dealing with the test laid down in Wyong v Shirt (1980) 146 CLR 40. Mahoney J said, in dealing with that test:

As far as concerns the court the approach laid down by Wyong Shire Council and Shirt’s case has, in my respectful opinion, the advantages of practicality. A court required to determine whether what the defendant did was wrong may approach the matter in terms of generality, not of generality, but of particularity. The court is required to identify what is the thing which the defendant should or should not have done and to examine, in terms of reasonableness, the acceptability of it. Such an approach does not of course provide a “slot machine” test, that is, a test by the application of which without more, a decision flows; the test of reasonableness involves a value judgment. But by framing the question in terms of what actually happened and what caused it to happen, this approach enables the court to focus upon what precisely it was that the defendant should or should not have done and to judge that.

22 In this case as noted, the discrepancies between Mr Bulmer’s evidence and the photographs are such that I was not able to make findings concerning what actually happened.

23 As to what the defendant should have done the evidence was that Mr Bulmer himself had not appreciated that there was any danger in the way in which the tables were stacked. He said the tables were stable and suitable for the use to which they were put. He did not think it would be a practical proposition to require the tables to be stacked flat on the floor because of the difficulties in lifting and moving them.

24 I have also referred to the evidence of Ms Woods that there was no prior complaint or concern expressed in relation to the way in which the tables were stored.

25 I also note that there was in fact an inspection of the room by Ms Woods, on behalf of the council, three days prior to the incident when everything appeared to be neat and in order.

26 The statement of claim suggests that the council ought to have provided a warning to Mr Bulmer concerning the tables and that it ought to have carried out an inspection. In the circumstances that I have already referred to, it is apparent that these allegations have not been made out. It is also alleged in the statement of claim that the tables should have been laid flat on the floor. Again, in the light of the evidence that allegation has not been made out.

27 There were allegations that the council failed to secure the tables and that it allowed them to be stacked in a manner which was dangerous. I have already noted that there had been no prior incident or complaint concerning the way in which the tables were stored, notwithstanding that they were used not only by the club but by other community organisations.

28 I find that the council neither knew of any danger, nor was any danger reasonably foreseeable. In the circumstances the claim against the council fails on the issue of liability.

Was there negligence by the club?

29 This means there will be no finding of liability on the part of the club. Even were I to have found liability on the part of the council, I would not have concluded that the club itself bore any responsibility by way of negligence for the injuries suffered by Mr Bulmer.

Damages

30 I will deal with the assessment of damages in the event that this matter proceeds further.

31 According to the council, and supported by the club, the damage to the plaintiff was a simple laceration to his right leg with complications which delayed what will ultimately be a complete recovery.

32 The evidence was that Mr Bulmer was an active fifty-eight year old prior to this incident. His activities aside from his voluntary service to the club involved gardening including a vegetable garden, cycling daily, fishing from his aluminium boat, bowling and dancing. He continues to work with the club but his other activities have been relinquished since the time of the accident.

33 After the accident he was taken to the Nelson Bay Poly Clinic where he was in much discomfort until he was transferred to the Newcastle Mater Hospital on 21 February. Surgery was undertaken whilst he was at that hospital, but he was not discharged until 8 March 2005. At that time he was required to use a walking frame. Dressings on his leg were required to be changed and for that purpose a district nurse attended three times a week and the dressings were otherwise attended to by his general practitioner and Mrs Bulmer. There was evidence of ongoing complications and pain and treatment until the wound finally healed towards the end of 2005.

34 Mr Bulmer continued to use the walking frame until December 2005, he then graduated to two walking sticks. He now uses one walking stick. He complains of continuing pain and discomfort with occasional sharp pains extending from his ankle and otherwise dull pain in his leg with swelling. When sitting he elevates his leg. When sleeping he places his leg on a pillow.

35 As far as medical evidence is concerned the orthopaedic specialist, Dr Ostinga, suggested that he could find no orthopaedic explanation for Mr Bulmer’s continuing discomfort and he recommended that the opinion of a vascular surgeon be obtained. Dr Coleman, a vascular surgeon, found nothing to suggest that the discomfort arose through any vascular injury and recommended that an orthopaedic opinion be obtained. Dr Donaldson, in my view put forward the most likely explanation for the ongoing problems, that is soft tissue damage.

36 The defendant’s experts do not take issue with the plaintiff’s injury, but they suggest that to a considerable extent his ongoing complications are the result of pre-existing health conditions suffered by Mr Bulmer. The defendant accepted that it must take Mr Bulmer as it found him at the time of this accident.

37 I am satisfied that Mr Bulmer’s ongoing complaints of pain and discomfort are related to the injury of 11 February 200 and that they affect considerably the quality of his life. Were I to award compensation I would assess it at 28% of the worst case and award $60,000. The figure of $3,431.65 has been agreed for past out-of-pocket expenses. For future out-of-pocket expenses, I accept that Mr Bulmer will be required to visit his general practitioner on a regular basis for the purpose of treating his pre-existing medical conditions and in respect of this particular incident, therefore I would allow the sum of $1,000 for future medical expenses.

38 It is agreed that it is reasonable that Mr Bulmer be compensated in the sum of $9,900 for past domestic assistance to 15 November 2005. As to the period from 16 November 2005 to 27 August 2007 it is argued that the claim of ten hours is somewhat overstated. In my view an average of seven hours over that period would adequately compensate the plaintiff, allowing the sum of $12,880.

39 For outside assistance it is agreed that it is reasonable to allow Mr Bulmer the sum of $2,640 for the period from 15 March 2005 to 15 November 2005. From that date to the present in my view it is appropriate to allow two hours per week in the sum of $3,840. The claim for future outside assistance is not disputed, in the sum of $27,424, nor was the claim for aids in the sum of $7,159.00.

Cross claim

40 I note that the contractual claim was not pressed by the cross claimant. I have already indicated my finding that no negligence was made out on the part of the club in respect of this incident.

41 The cross claim will be dismissed.

Order

42 Stood over to 3 October 2007 at 9.30am for mention to appoint a date to deal with the costs issues and the making of final orders.

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