Cara Hyam v Dallarooma Pty Ltd T/As CBD Chauffeured Transport
[2013] ACTSC 200
CARA HYAM v DALLAROOMA PTY LTD T/AS CBD CHAUFFEURED TRANSPORT
[2013] ACTSC 200 (25 September 2013)
NEGLIGENCE – personal injury – claim by passenger against bus company – plaintiff’s skirt catching on metal lever attached to base of tilted seat while alighting – causing plaintiff to fall to footpath – duty of care established – breach of duty established – no system of inspection for catchpoints
DAMAGES – personal injury – plaintiff falling to footpath while alighting from bus – injury to low back – disc bulge at L 4-5 – permanent low back pain – partial impairment of earning capacity – continuing need for treatment – no issue of principle
Civil Law (Wrongs) Act2002 (ACT), ss 42, 43, 44, 45
No. SC 26 of 2008
Master Harper
Supreme Court of the ACT
Date: 25 September 2013
IN THE SUPREME COURT OF THE )
) No. SC 26 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: CARA HYAM
Plaintiff
AND: DALLAROOMA PTY LTD T/AS CBD CHAUFFEURED TRANSPORT
Defendant
ORDER
Judge: Master Harper
Date: 25 September 2013
Place: Canberra
THE COURT ORDERS THAT:
Judgment be entered for the plaintiff in the sum of $242,250.00.
The plaintiff in this action claims damages for personal injury arising from an incident which occurred at about 10:30 pm on 23 January 2005 outside the Crown Plaza Hotel in Canberra City. The plaintiff was at that time a flight attendant employed by Virgin Blue Pty Ltd. The defendant company operated a small fleet of mini-buses which, among other things, ferried flight crew and other employees of airlines, including Virgin Blue, between Canberra Airport and their overnight accommodation in Canberra.
The plaintiff’s solicitors commenced proceedings by an originating claim which complied with r 52 of the Court Procedures Rules 2006 (ACT). That rule applies in relation to an originating claim that includes a claim for damages for personal injury caused by, or arising out of, the negligent use of a motor vehicle. The rule provides what such an originating claim must include, and further provides that the originating claim is sufficient if it includes the required information. Such a claim is accordingly not required to be pleaded in accordance with the conventional rules of pleading. The overwhelming majority of r 52 claims arise out of collisions between motor vehicles caused by the alleged negligent driving of the defendant’s vehicle. This is not such a case, but r 52 relieves the pleader of the need to plead the cause of action in the traditional way.
The plaintiff’s claim is pleaded in the statement of claim as follows:
On 23 January 2005 at approximately 10.30 pm, whilst on the premises of the Crown Plaza Hotel (1 Binara Street, City, ACT 2601), the plaintiff was exiting a bus whilst working for Virgin Blue Pty Ltd as a flight attendant. In doing so, her uniform became caught on the back seat lever of the bus causing her to fall down the stairs of the bus and out on to the ground. She suffered injury from this fall. The vehicle was stationary at the time of the incident.
Particulars of the defendant’s negligence were set out as follows:
2.1 Failing to provide any or any safe system of exiting the motor vehicle;
2.2 Failing to use appropriate safety measures in exiting the motor vehicle;
2.3 Failing to take any or any sufficient precautions to ensure the motor vehicle was capable of allowing a safe exit;
2.4 Failing to ensure the vehicle’s components were in a state of safe and adequate condition, so as to avoid likelihood of injury;
2.5 Failing to take any or any adequate precautions including failing to ensure a proper and safe system of departure existed; and
2.6 Failing to provide proper and adequate warning regarding risks associated with alighting from the motor vehicle.
2.7 Further or alternatively, the said incident was caused solely by the defendant’s breach of contract with the plaintiff, and the plaintiff relies on the particulars outlined above.
There is no assertion in the statement of claim that the defendant was the owner of the mini-bus from which the plaintiff was alighting, but ownership was conceded by counsel for the defendant at trial.
There was no evidence, or even assertion, of any contract between the defendant and the plaintiff at trial, from which I take it that the foreshadowed count in contract is not pursued. There was evidence that there was a contract between the defendant and Virgin Blue Pty Ltd, but the evidence did not descend into any detail as to the terms of that contract, beyond the fact that it gave rise to an arrangement whereby the defendant provided transport for Virgin Blue flight crew to and from the airport when they stayed overnight in Canberra. The evidence was that the defendant had a similar contract with the other major commercial passenger airline flying in and out of Canberra, Qantas, in respect of its flight crew.
In correspondence between the solicitors, further particulars were provided as follows:
As previously advised, our client has instructed that in order to exit the bus ... the driver of the bus was obliged to push the rear seat forward causing the seat lever to protrude. Our client was then required to step over the back of the seat in order to exit through the sliding door and down a set of pull out stairs. Our client further advises that the lighting in the bus was poor and that there were no warnings provided by either the ... driver or in the form of signage, nor were there easily accessible handrails that would assist in the event of loss of footing when exiting the bus.
The evidence in relation to liability
The plaintiff was born in 1980. After a number of other jobs she joined Virgin Blue as a flight attendant in October 2001. She lived in Queensland. Brisbane Airport was her base. Virgin Blue flew into Canberra from Brisbane, Sydney and Melbourne. When the last plane of the day terminated in Canberra, the flight crew would collect their luggage and walk to the mini-bus which would be waiting for them. There were about six in all, including a captain, first officer, cabin supervisor and flight attendants. Sometimes a spouse or partner of one of the flight crew might have flown in on the plane and would also travel on the bus. In Canberra, the bus service was always provided by the defendant, which had a number of similar buses, some a little smaller than others. The plaintiff’s recollection was that some had four rows of seats and others three, with room for luggage at the back. Her recollection was that on the night in question the bus was full although she was unsure whether there were three or four rows. The crew would take their luggage to the back of the bus and the driver would pack the luggage on board. The plaintiff had no specific recollection of this happening on the night but no reason to recall that there was anything different from the usual.
The driver drove the bus without incident to the Crown Plaza Hotel. The plaintiff was sitting in a rear row and was unable to get out until the driver tilted a seat in front of her forward. She said that normally the driver did this but sometimes it was done by passengers. She could not recall what happened on the night, although she did not remember lifting the seat herself. She had done so on other occasions.
The height of the ceiling of the bus was such that she was unable to stand straight and had to stoop to get out. In addition to her luggage, she was carrying a briefcase-sized handbag. She picked this up and started to get out. As she was stepping out she said “something caught me and it was a quick, like pull back really fast. Because I mean, I wasn’t rushing to get out but obviously I was, you know, trying to get out. So as I went to get out it pulled me back and then I fell down the stairs and landed on my knee and then landed back. That’s how I remember it. And then I looked back to see that my skirt had been ripped”. She had fallen onto a concrete surface. She was helped up by the first officer. She looked around to see what might have caught her. She saw a latch sticking up out of the back of the seat which had been tilted forward. She assumed that that was what she had caught her skirt on. She demonstrated that the chair had been tilted forward at an angle of some 45 degrees.
She had been wearing her Virgin Blue flight attendant uniform, which included a skirt of about knee height. The back panel of the skirt was torn, with a tear about 3 cm in length.
The plaintiff went to the back of the bus to get her suitcase. She told the driver she had just fallen. He asked whether she had been drinking, which she denied. She showed him her torn skirt. Her recollection was that there was no artificial lighting inside the passenger compartment of the mini-bus, although some outside light came in the windows.
The plaintiff conceded in cross-examination that her recollection of the night of her fall (more than seven years before trial) was a little hazy. She was unclear as to the number of rows of seats in the mini-bus behind the driver, and as to the number of steps down to the ground.
The plaintiff had ridden on similar buses on numerous occasions before her fall, but could not be sure that she had ridden on the same bus, although she remembered travelling on it again the next morning on her way back to the airport. She saw the lever again and warned her colleagues to be careful of it.
Counsel for the plaintiff tendered a report by Associate Professor Alexander Churches, who holds the degrees of Bachelor of Engineering and Doctor of Philosophy. Professor Churches is a fellow of the Institution of Engineers, Australia. He initially qualified as a motor mechanic and worked in the automotive trade for ten years, rising from apprentice to foreman. He then qualified as a professional engineer and moved into the academic field in the 1970s. He taught for many years in the School of Mechanical and Manufacturing Engineering at the University of New South Wales, and was head of the design department within that school between 1990 and 1995. He inspected the mini-bus at Queanbeyan in December 2009. It had been converted from a Volkswagen panel van, and had ten passenger seats in addition to the driver’s seat.
There was agreement between counsel that the bus inspected by Professor Churches was the bus from which the plaintiff was alighting when she fell.
The bus had front-hinged opening doors to the driver and passenger seats, and a single sliding door on the passenger side to allow access to the rear seats, with a top-hinged door to the rear luggage compartment. The sliding passenger door gave access to three rows of three seats each. By the time of the inspection, the luggage compartment had a steel mesh barrier to ceiling level, although this may not have been in place at the time of the plaintiff’s injury. The row of three sets immediately in front of the luggage compartment was fixed. The row in front of that had two fixed seats, to the driver’s side of the vehicle, with a seat on the passenger side which could be folded to its left side to allow access to the back row. The row immediately behind the driver had two fixed seats on the driver’s side, with one seat which could be tilted forward to allow access to the rows behind.
When tilted forward, the left of the three seats immediately behind the driver remained at its angle between seat and back. That is, the back did not tilt forward against the seat, but rather the whole seat and back tilted forward, the fulcrum being the tube base below the front of the seat portion. Below the back was a metal tube which was fixed to the floor when down, but released to go up, and which remained at the same angle to the seat and back when tilted. The bottom of this tube was fixed to a latch within the carpet on the floor of the vehicle when in the down position. This latch could be released by a lever with a spring, accessed from its left side, nearest to the sliding door on the passenger side of the vehicle. The engaging mechanism on the floor of the vehicle was described by Professor Churches as a hook, which was not moveable and which held the seat in its travelling position. The release lever, attached to the metal tube which formed the rear base of the seat, was readily accessible to a person in the position of the driver when the sliding door was open, and was probably also accessible to a passenger in the row immediately behind the seat.
The release mechanism was held in place around the tube which formed the rear base of the seat by a bent metal rod, the end of which was horizontal, with its end about 4 cm in from the tubular structure, pointing away from the sliding door and towards the driver’s side of the vehicle. It is the end of that of that rod on which the plaintiff, on her case, probably caught the hem of her skirt.
Professor Churches measured the floor level of the vehicle, at the sliding door, as about 60 cm above ground, with a step 9 cm below floor level, or 51 cm above ground level. He estimated the height of the rod, forming part of the lever, as 30 to 33 cm above floor level. He accepted that the height of the lower edge of the plaintiff’s skirt hem, wearing high-heeled shoes as part of the uniform, would have been 50 cm above floor level when the plaintiff was standing. She would, of course, have been stooped or bending to alight from the vehicle, reducing that height. The plaintiff was about 5 ft 8 in tall or 172 to 173 cm. The skirt she was wearing was straight, neither tight nor flared, with its lower edge above the knee. Her knee height would have been about 50 cm. The lever was accordingly about 20 cm below her skirt edge, if she had been able to stand upright. To alight, she would have needed to lower her head height, and at the same time to negotiate the 9 cm step at the exit. She could have done this by bending forward from the waist, or bending her knees, hips and ankles, or with a combination of these movements. In his opinion it was feasible that this explained the mechanism of her catch and fall.
He thought that the risk of catching clothing on the lever was low but foreseeable. It was, he said, good practice to take care to avoid projections or catch points of any kind, particularly in passageways and exit areas. He noted that the end of the lever was not rounded and was higher than the rest of the seat frame when the seat was tilted, in a position where passengers needed to move past it to exit the vehicle. A skirt or similar garment, in his opinion, had the potential to catch on the lever. It would have been a simple and inexpensive design and manufacturing modification to lengthen the lever by some 3 to 4 cm, and bend the extension down so that its sharp end lay well within the envelope of the seat frame, rather than projecting above it as it did. There was a foreseeable risk of catching on a garment, causing unbalance and a fall to the roadway.
The oral evidence of Professor Churches was that the modification he proposed would have cost less than $100.00 for each vehicle to which it applied.
Professor Churches thought that it was perfectly possible for a passenger in the position of the plaintiff to have her skirt brush over the top of the frame of the seat in front as she passed it, and to catch the edge of the skirt on the lever. It was put to her by counsel for the defendant that she might have just been unlucky in the circumstances. He agreed that there was a potential catch point in position and that months or years might go by without anyone catching it, but sooner or later there was a significant risk that someone would catch a garment on it.
Professor Churches was cross-examined, with reference to the photographs he had taken, and other photographs of the bus in evidence, about another lever which protruded from the passenger-side seat in the next row back. I can dispose of that part of the evidence by saying that I am satisfied that if the plaintiff had caught her skirt on that protrusion, it would not have caused her to fall from the vehicle as she did. It was much further back from the steps, and I am satisfied that she did not catch her skirt on that rod.
Evidence was given in the case for the defendant by Ms Willets, by the time of trial an owner and director of the company and of the business CBD Chauffeured Transport; and by Mr Coggens, the bus driver on the night.
The business was started by Ms Willets’ father, in 1996. The business had been initially based on transporting Qantas flight crew between the airport and hotels in Canberra, and had expanded to include airport transfers generally, and meetings and conferences for government and corporate clients. Ms Willets clearly took some pride in the fact that the business had been used for the purposes of visits by Presidents of the United States of America in 1996 and 2003. This had led to other work for foreign dignitaries.
By the time of the plaintiff’s injury, the business was operating some 23 vehicles, a mix of mini-buses, hire cars and other vehicles. The company had contracts with Qantas and Virgin.
Ms Willets did not become aware of the plaintiff’s injury until the company was served with the Originating Claim in early 2008. She said that it took some time to work out what type of incident it was and who was to represent the company. I take it from this that there was some difficulty involved in determining which insurance policy responded to the claim, and which insurance company would be looking after it.
Ms Willets identified a computer printout which identified the company vehicle which had collected flight crew on the date of the plaintiff’s injury and conveyed them from the airport to the Crown Plaza. The vehicle was identified as mini-bus registered number M0 209, a Volkswagen transporter. Her recollection was that the mini-bus carried nine or ten passengers in addition to the driver. The company had owned that vehicle since October 2003. It had been purchased new as what she described as a shell, and had been modified to fit the seating by Canberra Motor Works. Canberra Motor Works was one of a number of companies used by the defendant to modify vans as passenger transport. Her evidence was that the vans were subjected to detailed inspection by the motor registry each year, at registration renewal time. Her company was running more than 150 jobs per day by early 2005, with Qantas crews of 3000 passengers a month, and Virgin crews of 1000 to 1500 a month.
By 2005, Ms Willets was working four days a week with the company, generally in the office accounts area. She was not made aware of any complaint by the plaintiff of her fall at the time. Her evidence was that the company had never had such an incident reported before, or since.
Ms Willets played no part in inspection of the vehicles. She was not a driver. There were more than 20 drivers employed, some of whom were independent contractors.
Her recollection was that the company had two Volkswagen vans which were identical, as well as many other makes and models of vans.
The defendant company did not have any designated person whose responsibility it was to inspect the vehicles for safety hazards. Maintenance and safety were seen as the responsibility of the individual drivers. Drivers were responsible for maintenance of the vehicles, including fuel, oil, washing and cleaning. They were expected to advise on anything that needed to be done at the next service. Any defects in the vehicle, she said, would have been picked up at the motor registry each year at registration time, and for the rest of the time, the company relied on feedback from the drivers.
The Volkswagen vans were no longer owned by the company by the time of trial. They had been sold, she recalled, during 2009.
It had not been Ms Willets’ responsibility to inspect the vehicles for trip or catch hazards. Her inspections had been restricted to cleanliness.
She had been present when Professor Churches had inspected the vehicle. She agreed that the rod protruding from the seat on the passenger side immediately behind the front row, when tilted forward, was an obvious catch point and should have been identified, but she said that the plaintiff’s injury had been the only incident in 16 years. There had been no other reports or complaints of injury. She was asked whether there had been any system in place for reporting such hazards, or for reporting injuries. Her response was that it had never been necessary to report injuries, because there had never been an injury. They had systems in place to record complaints, and lost and found property, but these were the only regular reports. Otherwise the company relied on the drivers to provide information about risks and injuries.
She said that when the company received the Originating Claim, she contacted the driver and asked him whether he remembered anything about the incident. By the time of trial the vehicles were different. None of them had seats which needed to be tilted forward or sideways to allow entry and egress by passengers.
Ms Willets said that about 30% of the company’s passengers were airline crew. They also had a contract with the Commonwealth Department of Veterans Affairs for hospital appointments.
She was asked what was the company’s revenue in 2005. Her reply was that it was of the order of $2,000,000.00 per annum. The Volkswagen vehicle involved in the plaintiff’s injury had been owned by the company. Some vehicles had been owned by the company and others owned by contractor drivers.
Ms Willets became a director of the defendant company in mid-2006, and by the time of trial was the sole director and, effectively, the owner of the business. During 2007 her father retired and moved out of the area. Before 2007, any complaint would probably have gone to her father and she might not have known about it.
Ms Willets gave evidence that the company had had written contracts with the airlines, Qantas and Virgin Blue. There was no contract in evidence and I am unable to make any findings about the terms of the contract with Virgin Blue.
Evidence was also given in the defendant’s case by Dale Coggens, a chauffeur who had been working for the defendant company for ten years. He had been employed by the company for the first three years, and for the following seven years had been an independent contractor. In January 2005 he had been the driver of the Volkswagen Transporter mini-bus MO 209. He had been the driver of that vehicle on the date of the plaintiff’s injury, but he had almost no recollection of the specific trip. He did recall being made aware that someone had stumbled. At that time he had been at the rear of the vehicle, unloading luggage. He saw the person who had fallen, and saw her walk unaided into the hotel, wearing a Virgin Blue uniform, with the hem of the skirt down. He did not recall noticing any tear as such, but merely noticing that the hem was uneven at the back.
His evidence was that there had been two rows of seats behind the driver in that bus. He was shown the photographs taken by Professor Churches of the seating in the rear of the bus, and in particular of the release handle of the tilting seat, which he recognised. He agreed that it could be released from behind by a passenger using the foot. However, he said that it was his invariable practice to open the sliding door on the passenger side of the vehicle and to release the mechanism to tilt the seat forward. He had never come across passengers doing that for themselves.
He had driven the bus in question since the company had bought it new.
The evidence as to damages
The plaintiff’s evidence was that she bit her tongue as she fell, and hurt her right knee. She felt pain in the lower back. She went up to her hotel room, and rang to reception for Panadol and a heat pack.
The next morning she was conscious of pain in her low back. She was scheduled to fly out of Canberra to Brisbane that morning, and did so. She wore the torn skirt on that sector, and changed it for a fresh skirt in Brisbane. She did a normal days work. She saw her doctor the day after, 25 January 2005. She lodged an injury claim form with her employer.
She continued to work for 15 months, but contrary to her expectations, her low back symptoms did not resolve in that time. By then her knee and tongue and jaw had completely recovered. She saw her general practitioner in April 2006. He gave her a certificate for a month off work. She continued to experience low back pain, sometimes extending into the left leg. She got a lumbar support from a chiropractor which she used while driving, and was prescribed Panadine Forte. She was referred for physiotherapy which she did not find particularly helpful. She was referred for a CT scan which revealed a disc bulge at L4-5.
In late May 2006 she returned to work on light duties, under the supervision of the employer’s workers’ compensation insurer. She commenced to receive Work Cover benefits. She was taken off flight work and given light duties in a uniform hanger in Brisbane, unpacking boxes and hanging uniforms. This work was not helpful for her back pain. She continued with it for about three months. She then took annual leave for a month. During that time her back pain improved.
In September 2006 she resumed work as a flight attendant, and worked for about a month. Her low back symptoms returned.
In October 2006 she was reassigned to light duties in the uniform hanger, and later in the catering department. She was told by her doctor that she would not be able to work again as a flight attendant. In January 2007 the doctor advised Queensland Work Cover that if the plaintiff’s symptoms persisted on returning to full-time work, she would need to look for employment which did not have the same manual component.
In February 2007 she was placed in a return-to-work program. She continued working with Virgin Blue until early May 2007 when she accepted that she would not be able to fly in the future because of back pain. She was by then living on the Gold Coast and driving to work in Brisbane, and found that the long period in the car affected her low back.
In July 2007 she found work as a sales representative with a supermarket wholesale company. She was allocated a company car. Her work involved driving around supermarkets, checking the display of her company’s products, and arranging merchandising displays. The work involved driving and shelf-packing, both of which hurt her back. She gave that job up and found work as an account manager with a radio station in about September 2007 on the Gold Coast. Her job, in her words, involved prospecting new business and selling advertising. Most of the clients were on the Gold Coast, with some in Brisbane. She needed to drive to meetings with clients. Over time she found that her low back would become painful on prolonged sitting, but the job had greater flexibility than her previous work and she could cope with it.
She continued working with the radio station until August 2010, when she applied successfully for a job in Dubai, with similar work seeing clients and selling advertising. She remained in that employment by the time of trial but her intention was to return to Australia within a year. She said that she would like to come home and settle down, to find a husband, get married and have children.
She continued to suffer from back pain, exacerbated by her work and by prolonged driving, for example from Dubai to Abu Dhabi, a trip of about an hour.
By the time of trial, the plaintiff had no symptoms in the jaw or knee, but said that her back was constantly painful, with the level of pain varying from time to time. She described this as a constant ache, with a pinching pain sometimes. She found it depressing. She had become used to the pain. It was aggravated by dancing, running or other exercising. She had put on weight (10 kg) because she had not been able to exercise. She obtained relief from manipulation by an osteopath for a few days. She would have pain in the left leg every three or four months, and would have a bad day with her back once or sometimes twice a month, lasting for up to three or four days. Sometimes she needed to have a day, or even a few days, off work. She said that she would not be able to work in the future as a flight attendant, or as a retail shelf stacker.
When she had been living in Australia, she had been unable to use a vacuum cleaner because of back pain. She had the same difficulty with cleaning bathrooms. This had not been a problem while she had been living in Dubai, where she, in common with other expatriates, had cheap domestic assistance.
For some time she had a boyfriend in Dubai who was an osteopath. He provided her with treatment as needed, which was very helpful, but that relationship had ceased. Since then she had been going to an osteopath about once every two weeks, which she paid for. She avoided taking medication as far as possible but occasionally took Panadol for back pain. She estimated that she had paid about $900.00 for osteopath treatment in Dubai.
The plaintiff agreed in cross-examination that the work of a flight attendant had been hard work, and that it was not the sort of job that she would have been likely to do for a lengthy period.
She was asked about the period of some 15 months between her fall and being certified unfit for work for a month, in April 2006. Her evidence was that during that period she had a number of days off sick, and that her back pain had been getting worse. She saw doctors about her back from time to time in Queensland. She mostly attended bulk-billing practices, which would explain her not having claimed for those attendances on workers’ compensation.
The plaintiff was cross-examined about a form she filled out in April 2007 for employment with a dairy products wholesaler on the Gold Coast. The form asked whether she had suffered from, had treatment for, or experienced symptoms of some 27 listed conditions, one of which was “back/shoulder/hip pain/injury/illness”. She ticked that box but none of the others, and added “lower back soft tissue injury – treatment was physio – fully recovered, not an ongoing problem”.
The plaintiff agreed that she had filled the form out and signed it, including a declaration that its contents were true and correct. She said that the contents were true to the extent that her pain had gone down since she had stopped working with Virgin Blue. She had not felt the need to tell her prospective employer that she might have back problems with some physical activities. She agreed that she had been a little selective in what she put in the form about her back condition.
I should interpolate at this point that I did not regard that evidence as seriously detracting from the plaintiff’s credibility. She had disclosed the back injury, both to the employer and to the doctor who was completing another part of the document. She wanted the job and was hardly likely to present herself as physically or medically unfit to cope with it. Nevertheless I infer that at the time she completed the form, in April 2007, her back symptoms were not particularly severe.
Counsel for the plaintiff tendered a Medicare history statement which confirmed that the plaintiff had a number of attendances during 2005 with various general practitioners in Queensland.
The medical evidence
All of the medical evidence was tendered in report form.
Dr James Powers prepared a report for Queensland Work Cover in November 2006. He noted the history of a fall out of a bus at work in January 2005 causing a back injury, with no previous relevant history. He said that since then the plaintiff had suffered with radicular back pain and pain in the legs, more so on the left side, mainly centred around S2 dermatomes. He referred to a CT scan of 28 April 2006 showing a disc bulge at L4-5. He said that the plaintiff was using anti-inflammatories and analgesics as required, and consulting a local physiotherapist. He recommended an MRI scan and an opinion from a neurosurgeon. He noted that she drove from the Gold Coast to work in Brisbane, a drive of about an hour, which exacerbated her back pain. He said that her condition was stable and not getting worse. He thought that she would continue to need physiotherapy and might come to surgery.
The plaintiff was duly referred to a neurosurgeon, Dr Ross Gurgo. He saw her in January 2007, and referred her for an MRI scan of the thoracolumbar spine. This revealed a central disc protrusion at L4-5 indenting the anterior thecal sac. Dr Gurgo explained to the plaintiff that surgery was not appropriate. She needed to continue with a core strengthening physiotherapy program which should get her back to work full-time in four to six weeks, although she might find herself unable to cope with work as a flight attendant and might need to find other work.
The plaintiff’s solicitors referred her to Dr Scott Campbell, a Brisbane neurosurgeon, for a medico-legal report in September 2008. He noted that it was approaching four years since her injury, and that she continued to complain of low back pain present daily, radiating to both hips and intermittently down the left leg. She had sciatica on the left side about once a month. Her back pain and other symptoms were aggravated by certain physical activities such as mopping and using a vacuum cleaner, carrying a shopping bag, and standing or sitting for prolonged periods. She was still able to jog, cycle and attend a gym. On physical examination Dr Campbell found reduced extension of the lumbar spine with pain at the extremes. His opinion was that she had injured her lumbar spine in her fall, causing the disc bulge at L4-5. She was coping with work as an accounts manager by the time he saw her though she would probably need the occasional day off work with acute exacerbations of the low back injury. She should not in his opinion return to work such as flight attendant work involving lifting of luggage and restocking of carts. He explained that most patients recover from such an injury within days or weeks. Thereafter recovery declines with time. The plaintiff had in his view reached the point of maximum medical improvement. Her symptoms had become chronic despite appropriate treatment and were unlikely to resolve. Deterioration was possible and she should avoid heavy physical activities. There was also an increased risk of arthritis developing at the site of her injured structures. He noted that at a personal level her sleep was sometimes disrupted by pain, and that her symptoms had caused her some psychological distress. She might require physiotherapy, chiropractic or massage in the future for acute episodes of pain which were likely to occur from time to time. She would require assistance with heavier housework and garden tasks.
The defendant’s solicitors sent the plaintiff to Dr Michael Weidmann, a Brisbane neuro surgeon and Associate Professor at the University of Queensland. He saw the plaintiff in May 2009. He took a history and carried out a physical examination. The plaintiff complained to him of continuing pain in the low back, there virtually every day to some extent, and relieved to a degree by the use of a heat pack at home. The pain often interfered with her sleep. She felt stiff in the mornings. She was unable to run, but walked most days with her dog. She had episodic flare-ups, and needed to take one to two days off work each month when these occurred. She took painkillers and anti-inflammatories as required though she tried to avoid these as much as possible. She had a massage or osteopathic treatment about twice a month.
On examination Dr Weidmann found tenderness in the lumbo-sacral region with some limitation of back movements in all directions.
His opinion was that she had sustained musculo-ligamentous injuries to the lumbar spine as a result of her fall. He said that the degenerative changes seen on MRI were of doubtful significance. It was likely that all of her symptoms were caused by the fall. They were quite disabling. Her condition had stabilised. It was unlikely that she would derive any significant benefit from further treatment. Treatments such as massage were not in his view medically essential. She would not require surgery.
He did not think that she required formal domestic assistance around her home but accepted that she would have difficulty working as a flight attendant, or in any employment requiring moderately heavy bending and lifting. He thought it uncertain whether the disc bulge at L4-5 was caused by the fall, or whether it might have been there already.
It does not seem to me of any relevance to my task whether the bulging at L4-5 was caused by the fall, or whether it was a pre-existing condition caused by degeneration resulting from the ageing process. There is no issue that the plaintiff was asymptomatic before her fall, or that she has had continuing back pain and other related symptoms since the fall. The fall must therefore be seen as the cause of her continuing symptoms whichever of those two explanations one were to accept.
Dr Weidmann had a copy of Dr Campbell’s report and did not otherwise disagree with any of the opinions expressed by Dr Campbell, which I accordingly accept.
Liability
The provisions of Chapter 4 of the Civil Law (Wrongs) Act2002 (ACT) (‘the act’), dealing with negligence, are applicable to the circumstances of this case. The chapter applies to all claims for damages for personal injury resulting from negligence, defined as failure to exercise reasonable care and skill.
Section 42 of the act provides that the standard of care to be applied to a defendant is that of a reasonable person who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident.
Section 43 provides that a defendant is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, a risk of which the person knew or ought to have known); the risk was not insignificant; and in the circumstances a reasonable person would have taken those precautions. In deciding whether a reasonable person would have taken precautions against a risk, the court must consider the probability that the harm would happen if the precautions were not taken, the likely seriousness of the harm; the burden of taking the precautions; and the social utility of the activity creating the risk.
Section 44 relevantly provides that the fact that a risk could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done.
Section 45 deals with causation, and provides that a decision that negligence caused particular harm comprises two elements:
(a) that the negligence was a necessary condition of the happening of the harm;
(b) that it is appropriate for the scope of the defendant’s liability to extend to the harm so caused.
In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
On the facts of the present case, there is no doubt that the defendant owed a duty of care to the plaintiff. The defendant had a contractual obligation to the plaintiff’s employer to transport her from the airport to her hotel. The contractual arrangement gave rise to a direct duty to the plaintiff to do so with safety. By reason of the continuing relationship between the defendant and the employer, the defendant knew and must be taken to have known that persons in the position of the plaintiff would be wearing flight attendants’ uniforms, including a skirt of the kind which the plaintiff was wearing. The defendant must also be taken to have known that persons of normal height would need to stoop and bend as they got off the mini-bus.
Sometimes an injury is caused in circumstances where the risk was not apparent to anyone until after the event. I bear in mind that the risk must be assessed prospectively, and that I must not allow myself to be influenced by the knowledge in hindsight that the risk came to pass on the occasion of the plaintiff’s fall.
The evidence is that the defendant purchased the mini-bus as a shell, and engaged another company to fit it out internally with passenger seating. I have no further detail as to whether the fitout followed a format which had been used on many prior occasions, or whether it was designed and developed for the two vehicles owned by the defendant. The evidence does not assist as to whether the defendant had any involvement in approving the design of the fitout, and in particular the design of the latch and release mechanism for the tilted seat on the passenger side in the row immediately behind the driver. I am satisfied on the evidence that the rear hem of the plaintiff’s skirt caught on the lever on that seat which I have previously described, and that this was what caused her to lose her balance and to fall.
I also accept the evidence that the defendant’s management had no record of any injuries arising from such an incident before this, and that the driver of the mini-bus has no recollection of any previous such incidents.
Having said that, it does not seem to me that the defendant had any proper system for recording such incidents, either at its administrative offices, or at the individual bus driver level. There is no suggestion that the driver on this occasion took any steps to record the incident at the time, or to report it to the company office. If passengers had previously caught clothing or handbag straps on the lever and had brought this to the attention of the driver, it seems to me unlikely that the driver would have recorded it or even treated it as a matter of significance. I am satisfied that following the plaintiff’s fall the driver did not treat the matter as one of any importance and did not take any steps to investigate the cause of the plaintiff’s fall.
I am not satisfied on the evidence that the defendant had any system in place for inspection of buses which would have been likely to detect the risk which was the cause of the plaintiff’s fall.
The defendant seems to have relied on the annual motor registry inspection to pick up any problems with its vehicles, and on the individual drivers to report or deal with any safety issues which might arise.
It seems to me a reasonable thing to expect that a company operating a fleet of more than 20 mini-buses and other vehicles, conveying passengers including airline flight crew for profit, would put in place a system of inspection for safety risks, rather than, as effectively what happened here, waiting for the risk to eventuate before doing something about it.
I need to consider, in the light of the expert evidence in particular, whether such an inspection would have picked up the present risk, that clothing might catch on the lever on which the plaintiff’s skirt caught when the seat was tilted in the forward position. It seems to me reasonable to take into account that the seat would have been put into that position on every occasion when there were passengers other than in the front passenger seat and the row immediately behind the driver. That is, every time the mini-bus was full or almost full, the seat would have to have been tilted forward for a number of the passengers to get out. The positioning of the lever where it was when the plaintiff’s skirt caught on it was accordingly far from a rarity, and something which probably happened very frequently.
Because of its position just inside the bus at the top of the steps, I am satisfied that if a passenger’s clothing caught on the lever, the risk of injury to the passenger was not insignificant. It seems to me, doing my best to put out of my mind the benefit of hindsight, quite likely that a catch of that kind might cause a passenger to lose balance and fall on the steps, down onto whatever surface was below. A concrete footpath surface would be very much to be expected in the Canberra airport to hotel scenario. In these circumstances the risk of injury was not insignificant, and the injury was quite likely to be reasonably serious.
Professor Churches suggested in his report one inexpensive way of dealing with the problem: by a physical modification of the lever. Another available precaution would have been for the driver to supervise passengers as they got off the bus. With a likely maximum of eight or nine passengers this would not have been particularly onerous.
It follows that whilst it has not been established that the defendant had actual knowledge of the risk, I am satisfied that the defendant should have known of it, that the risk was not insignificant, and that a reasonable person in the defendant’s position would have taken one of the precautions I have just mentioned, which would probably have avoided injury to the plaintiff. The probability that the harm would happen was clearly quite low, but the potential harm was serious and the burden of taking precautions was not particularly onerous.
I am accordingly satisfied that the defendant committed a breach of its duty of care to the plaintiff, and that the breach resulted in injury to her.
I am required under s 45 of the act to be satisfied that it is appropriate for the scope of the defendant’s liability to extend to the harm caused to the plaintiff, and in the process to consider whether or not, and why, responsibility for that harm should be imposed on the defendant.
The defendant was a commercial operator of passenger transport for profit. The plaintiff was an employee of an airline with which the defendant had a contract to provide that transport. The vehicle involved was registered as a commercial passenger vehicle. The plaintiff to my mind comes precisely within the range of persons to whom the defendant should be regarded as responsible for negligently inflicted personal injury. I am accordingly satisfied that the requirements of s 45 are met on the facts of this case.
The defendant has pleaded in its defence that the plaintiff was guilty of contributory negligence. I am satisfied on the evidence that the lighting inside the mini-bus was poor and that the plaintiff did not see the lever, nor should she reasonably have been expected to see it. I am not satisfied that she was, in all the circumstances, failing to keep a proper lookout or otherwise to take reasonable care for her own safety. I am accordingly not satisfied that the defendant has established that she was guilty of contributory negligence.
Damages
I accepted the plaintiff as an honest and truthful witness. I was impressed by her demeanour. She made no attempt to exaggerate her symptoms, if anything rather understating them.
It is now approaching nine years since her injury. I accept that she has had persistent low back pain since then, present to a varying extent almost every day. Sometimes it is bad enough for her to have to take a day or two days off work, but she generally copes with work and with the rest of her life. She sometimes needs to take medication but tries to avoid it. She gains benefit from massage and osteopathic treatment, which I accept, notwithstanding Dr Weidmann’s view, as caused by the accident and entirely reasonable.
I accept the view of both Dr Campbell and Dr Weidmann that the plaintiff’s condition has stabilised and cannot be expected to improve much in the future. I accept Dr Campbell’s opinion that the plaintiff is vulnerable to aggravating factors which might lead to long-term deterioration of her condition. Such aggravating factors cannot always be avoided and there is the possibility of future deterioration, as well as the risk of arthritis mentioned by Dr Campbell.
There are a number of activities which the plaintiff, still a young woman, has been and will be unable to engage in in the future.
Mr Tuscano of counsel for the plaintiff submitted that an appropriate range for general damages would be $100,000.00 to $120,000.00. Mr Sharwood of counsel for the defendant submitted that on the evidence an appropriate figure would be about $70,000.00. I would not wish to undercompensate the plaintiff in this regard because she did not pitch her own case quite as high as some plaintiffs might, and I take account of the fact that pain, even when it is not at an excruciating level, can make a significant different to a person’s enjoyment of life when it is there almost constantly. I award the plaintiff $90,000.00. I apportion half of that sum to the past and allow interest on it for 8.75 years at 4% per annum, spread fairly evenly over the years since the injury, which I round to $8,000.00.
Loss of earnings to the date of trial were agreed at $22,265.97. To allow for the period from trial to judgment, I award $25,000.00.
It is common ground that the plaintiff’s actual loss, after taking account of workers’ compensation payments, is $9,400.00, and that I should allow interest on two thirds of that amount since about the middle of 2007. In the absence of any specific submissions from counsel about rate of interest, I adopt the conventional 9% per annum and award $3,500.00 for interest on past economic loss.
Neither counsel sought to urge upon me a mathematical approach to the assessment of a figure for loss of earning capacity for the future. Counsel for the plaintiff suggested a figure in the vicinity of $75,000.00 as a buffer for the future, in response to a range put by counsel for the defendant of $10,000.00 to $15,000.00.
I take account of the evidence that the plaintiff needs to take one to two days off each month, and that heavier work is no longer available to her. The latter may become relevant in times of higher unemployment when she may be one of those finding it more difficult to obtain work. I also take account of the possibility of deterioration in her physical condition in future years, and, on the other hand, of her evidence as to her desire to marry and have children, which will, and would in any event, have taken her out of the workforce for some period. The evidence as to the plaintiff’s past earning satisfies me that she has a capacity, on her return to Australia, to earn something of the order of $1,000.00 per week after tax. She is almost 33, and the multipliers to age 60 and age 65 for a woman of 33 are 957 and 1059.
Taking all of that into account, it seems to be reasonable to allow a generalised figure for loss of earning capacity for the future of $50,000.00.
Counsel were agreed that it was appropriate to allow 9% of the past and future figures to compensate the plaintiff for loss of superannuation benefits. For the past I allow $2,250.00 and for the future $4,500.00. There is no claim for interest on the past figure, on the rationale that the loss will not be suffered until retirement, although I have some reservations about whether that is the correct approach.
It was agreed that at the date of trial the workers’ compensation insurer had paid treatment expenses of $6,387.26, and that Medicare had paid expenses recoverable in the action of $2,244.65. It was also agreed that the plaintiff had paid out amounts of $17,290.25. I have checked the list of expenses and am satisfied that all of these amounts are properly recoverable. Counsel for the defendant did not have instructions to admit the amount paid by the plaintiff but did not wish to be heard at any length about it. I am therefore satisfied that to the date of trial the plaintiff had an entitlement to recover as part of her damages past expenses of $25,922.16. To cover the period from trial to judgment, I allow a total sum of $27,000.00.
I allow interest on $18,000.00 of that, at the conventional rate of 9% per annum, spread over the period since injury, which I round to $7,000.00.
The assessment of a figure for future treatment expenses is speculative. The plaintiff is likely to continue to spend money on medication as she needs it, and on massages and visits to the osteopath. Counsel for the plaintiff seeks a figure of $30,000.00 for the future. Counsel for the defendant did not address specifically on this component. I am persuaded that I should allow $25,000.00.
No specific claim was made in particulars for a Griffiths v Kerkemeyer component although counsel for the plaintiff submitted that I should recognise the plaintiff’s need in that regard in assessing general damages, which I have done.
The individual components of the award are accordingly as follows:
General Damages $90,000.00
Interest on past component $8,000.00
Out-of-pocket expenses – past $27,000.00
- Interest $7,000.00
- Future $25,000.00
Economic loss – past $25,000.00
- Interest $3,500.00
- Future $50,000.00
Loss of superannuation benefits – past $2,250.00
- Future $4,500.00
___________
$242,250.00
That total seems to me, on consideration, to represent an adequate reflection of the impact of the defendant’s negligence upon the plaintiff, and a proper sum to compensate her for her injuries and their consequences. There will be judgment for the plaintiff for $242,250.00. I shall hear the parties as to costs, in case there may be factors relevant to that issue which are unknown to me.
I certify that the preceding 112 (one hundred and twelve) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 25 September 2013
Counsel for the plaintiff: Mr F Tuscano
Solicitor for the plaintiff: Porters Lawyers Canberra agents for
Hall Payne Lawyers, South Brisbane
Counsel for the defendant: Mr WL Sharwood
Solicitor for the defendant: DLA Piper Australia
Date of hearing: 28, 29 February 2012
Date of judgment: 25 September 2013
0
0
0