Carter v Railway Motel Pty Ltd
[2016] WADC 102
•1 JULY 2016
CARTER -v- RAILWAY MOTEL PTY LTD [2016] WADC 102
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WADC 102 | |
| Case No: | CIV:3052/2012 | 5 - 9 OCTOBER 2015 | |
| Coram: | BRADDOCK DCJ | 1/07/16 | |
| PERTH | |||
| 43 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff's claim dismissed Provisional assessment of damages | ||
| PDF Version |
| Parties: | TERENCE JOHN CARTER RAILWAY MOTEL PTY LTD BRIER-ROSE PTY LTD DELLA-BRIDGE PTY LTD |
Catchwords: | Occupiers' liability Falling accident Sloping kerb Painted Danger to users of premises Measures to prevent Reasonableness Turns on own facts Damages Intervening loss of employment for other cause |
Legislation: | Civil Liability Act 2002 s 5B, s 5C Occupiers' Liability Act 1985 s 4, s 5 |
Case References: | Medlin v State Insurance Commission (1995) 182 CLR 1 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
RAILWAY MOTEL PTY LTD
First Defendant
BRIER-ROSE PTY LTD
Second Defendant
DELLA-BRIDGE PTY LTD
Third Defendant
Catchwords:
Occupiers' liability - Falling accident - Sloping kerb - Painted - Danger to users of premises - Measures to prevent - Reasonableness - Turns on own facts - Damages - Intervening loss of employment for other cause
Legislation:
Civil Liability Act 2002 s 5B, s 5C
Occupiers' Liability Act 1985 s 4, s 5
Result:
Plaintiff's claim dismissed
Provisional assessment of damages
Representation:
Counsel:
Plaintiff : Mr D R Clyne
First Defendant : Mr J R Ludlow
Second Defendant : Mr J R Ludlow
Third Defendant : Mr J R Ludlow
Solicitors:
Plaintiff : Simon Walters
First Defendant : HWL Ebsworth Lawyers
Second Defendant : HWL Ebsworth Lawyers
Third Defendant : HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Medlin v State Insurance Commission (1995) 182 CLR 1
- BRADDOCK DCJ:
Introduction
1 On 26 October 2011, Mr Carter travelled from Perth to Kalgoorlie by train, the Prospector, for work purposes. He had done this on a couple of occasions before. He had booked a room in advance at the Railway Motel, which is situated across the road from the Kalgoorlie station. He had stayed there before also. He noticed on the train, after Southern Cross, that it had started to rain and it continued raining most of the way to Kalgoorlie.
2 Mr Carter checked in at the Railway Motel. He took his bag and a carrier bag he had with him and set off from reception to go to his room.
3 The layout of the complex is shown in aerial photograph attached to report of Mr Dunning, a materials engineer. Significantly, the reception area and accommodation are separated by a driveway serving the various units in the complex. Mr Carter had to cross this driveway to make his way to his allocated room. He crossed the driveway at a point where a pathway gives access to the stairs to his room on the first floor.
4 On the edge of the driveway runs a slanting kerb (the Kerb). Across that portion of the Kerb where the pathway intersects the driveway, the Kerb had been painted yellow.
5 Measurements subsequently taken of the Kerb show that it rises a total of 135 mm from the driveway surface. The first 20 mm are vertical, and the rest is at an incline of 29 to 31 degrees. The top section of the kerbstone is horizontal for 54 mm. The length of the slope is 185 mm. Mr Dunning, the engineer who measured it, did not specify the overall width of slope of the Kerb. Pythagoras' theorem remains useful. A calculation shows that the depth of the sloping section is 145 mm, horizontally. See diagram at par [50].
6 As Mr Carter headed for his room, he stepped on the Kerb. He describes what happened next in this way:
I put my left foot on the sloped surface. It went backwards. I went forward (ts 11).
7 As a result, he fell and landed on his right arm. He gave evidence that he injured his elbow, pulled his back and twisted his knee.
8 He claims that the Kerb was wet. On the following day, he returned to the Kerb and felt its surface. He found it to be very smooth. It was then dry. He also observed paint on the stairs leading up to his room. The edge of each step for about 4 inches was painted, not yellow, but with a substance which was darker and rough to the touch.
9 After his fall, Mr Carter was assisted by other patrons at the Railway Motel. An ambulance was called and he was taken to Kalgoorlie Hospital.
10 He had suffered an undisplaced fracture to his elbow. He was given analgesia and a sling. He was sent back to his lodgings. He returned to Perth two days later having spent the two nights at the Railway Motel.
The action
11 On 9 October 2012, Mr Carter issued a writ against the defendants, the Railway Motel Pty Ltd (1), the manager(s) of the Quality Railway Inn at the relevant time, Brier Rose Pty Ltd (2) and Della-Bridge Pay Ltd (3) who were partners in the business and tenants in common of the Quality Railway Inn at Kalgoorlie (the Railway Motel).
12 Mr Carter pleads, in his amended statement of claim of 27 March 2013, that he was a lawful invitee at the Railway Motel when he fell and that the accident was caused by the negligence and/or breach of statutory duty of the defendants, their servants or agents. The particulars of the alleged negligence/breach of duty are given as:
Particulars of Negligence
The First Defendant was negligent in:
(a) failing to institute an adequate procedure involving inspection and maintenance of the premises to ensure it was safe;
(b) failing to erect or place any, or any reasonable, warning signs to warn the plaintiff of the foreseeable risks of walking on the slippery footpath;
(c) failing to observe the existence of the wet footpath ('the hazard') and take action to avoid foreseeable risks to the plaintiff;
(d) failing to ensure that the footpath was slip resistant.
Particulars of Breach of Statutory Duty
(m) Failure to warn of dangers inherent in premises;
(n) Failure to take reasonable precautions to ensure that the Plaintiff would not suffer injury or damage;
(o) Failure to consider the likely gravity of possible injury to the Plaintiff; and
(p) Failure to take steps to warn the Plaintiff of the risk of injury in circumstances where it would be easy to warn of the danger.
13 His injuries are pleaded as:
7. In the aforesaid Accident the Plaintiff sustained fracture of the right elbow joint, injuries to the capsular and ligamentous structures supporting L5/S1 and soft tissue injuries of the right elbow, right forearm and right hand which injuries produced:
(a) pain, stiffness and tenderness of the right hand, right arm, and back;
(b) limitation of movements of the right hand, right arm, and back; and
(c) headaches and discomfort together with sleep disturbance.
Submissions
15 For Mr Carter, the case was put on the basis that the step was painted with inappropriate paint. It was argued that 'Dulux Roadmaster' paint was not designed for this purpose: it was for marking edges, crosswalks etc, for improved visibility. In deciding to paint the Kerb in that position, indicating pathway access to the guest rooms, the defendants created a 'slipping hazard'. That is, they made the situation worse. Thus, it constituted a danger on the premises. It was foreseeable that a fall might result and that any injury could be significant. The measures required to ameliorate the situation were not difficult or onerous. Grit could be added to the paint, as recommended in the manufacturers' specifications.
16 For the defendants, it was conceded that they were occupiers for the purposes of the Occupiers Liability Act 1985 (OLA) and that the standard of care under s 5 of the OCA applied, but they denied there was a danger due to the state of the premises, and denied any breach of duty.
17 It was argued that there had been no accident of a similar kind for at least 10 years. The Kerb was of a type in common use in car parks and similar locations. It was clearly marked.
18 It was also submitted that the Kerb was painted to show it should not be stepped on. It was said that Mr Carter failed to take care for his own safety by stepping on it and that he tripped rather than slipped, by not looking where he was going. It was suggested that other physical conditions which caused numbness in his foot contributed to his fall. It was said that if he tripped, it was due to his own failure to take care.
19 Further, the defendants asserted that Mr Carter should not be believed in his account of the accident because he gave inconsistent versions of how the accident occurred to the ambulance officers, the hospital, his GP and Mr Hardcastle.
20 The defendants submitted that his back injury was pre-existing and he would have required a fusion in any event. Further the defendant said that his evidence that he further injured his back in the fall should not be accepted because he said nothing about it to his treating physician until seven weeks later.
Issues to be determined
21 On the pleadings and the case that was run at trial, the following are the main questions:
1. Did Mr Carter fall in the manner described?
2. Was the Kerb a danger due to its state?
3. Did painting the slope of the Kerb make it more slippery than bare concrete?
4. Could any reasonable measure have prevented such a situation arising?
5. Did Mr Carter fall because of his own lack of care?
6. Was a lumbar spine injury caused or contributed to by the accident?
Liability
How Mr Carter fell
22 The first consideration is what the evidence establishes about the accident itself. No question has been raised but that Mr Carter fell on that afternoon. The issue is, has Mr Carter established on the evidence that he slipped on the Kerb?
23 There is no eyewitness description of his fall nor any other corroboration of his account. He impressed me as an honest witness, doing his best to give an account of an unexpected incident which suddenly resulted in a fall and significant injury. 'Slipped' is a word which connotes a loss of traction leading to uncontrolled or unexpected movement. This is what I understood Mr Carter to describe.
24 Mr Carter was cross-examined on what he had allegedly said on previous occasions about the fall. The statements were said to be inconsistent. They were made to an ambulance officer, the hospital, Dr Farquhar (his GP) and Mr Hardcastle (an orthopaedic surgeon who examined him much later on). He maintained that he told them all what happened in terms of slipping and falling. Dr Farquhar confirmed in his evidence that this is what he was told by Mr Carter. He accepted that he made a mistake in stating otherwise in the first workers' compensation certificate which he provided. His original notes were accurate and he said and there he used the term 'slipped'. There is therefore no proof of inconsistency by Mr Carter here.
25 There was no evidence from the ambulance officer or the hospital. Their respective notes were admitted into evidence. The accuracy of those notes was not tested. Given that Mr Carter was suffering from a painful injury to his elbow, had been given nasal painkilling medications by the ambulance officers at the scene and on the way to the hospital, and that he was receiving emergency treatment, I am unable to rely upon those notations alone to conclude that Mr Carter made any reliable statement, contrary to his evidence on oath. Both sets of notes also record that he had stomach cancer, in remission. That is not factually accurate.
26 Mr Hardcastle's report stated
that as he put his foot on the step, it gave way. He fell, slipping forwards and putting out his right arm.
27 Mr Hardcastle, in evidence, confirmed the content of his contemporaneous note and said that he presumed it was the Kerb that gave way. That is so distinct from any other description of the fall as to be clearly an error or a misinterpretation. I am unable to place any evidential weight on this account. It is not sufficient to satisfy me that Mr Carter made a contradictory statement about how he fell to Mr Hardcastle.
28 For these reasons, none of the alleged statements undermine Mr Carter's credibility to any extent in my mind. I accept that Mr Carter is honest when he says he slipped. Whether this can be accepted as an accurate statement of causation requires further consideration.
29 The Kerb was steep. At a slope of almost 32 degrees, it would produce an awkward position for a human foot. The inclined section is 185 mm long, which I consider to be shorter than an average Australian adult male foot. It was not suggested that Mr Carter approached the Kerb at an angle. He did not say he stepped sideways onto the Kerb. He said he was walking normally and that he put his left foot on the sloped surface. The angle is such that most people would find it at least uncomfortable to put a foot upon the angled section to walk over it. In normal walking, absent any anatomical irregularities or injury, the heel of the foot goes to the ground first. Mr Carter did not specify in evidence-in-chief, nor was he cross-examined, on which part of his foot stepped onto the Kerb or where on the Kerb it was placed. There are four reasonable possibilities.
30 If he put his full foot down, with the metatarsals on the slope, his heel would be either on or against the horizontal driveway. If he put his mid-foot to heel on the incline, the back of his heel would be close to and at an angle to the driveway. In each of these scenarios, it is difficult to see how his foot could have easily slipped backwards. If he put the rear of his foot or his heel on the mid to upper part of the slope, as might occur if a pedestrian almost stepped over the kerb, two things would happen: firstly, the foot would be at an acute angle and secondly, there would be nothing behind the heel to stop it moving backwards and the front of the foot would be in the air, with no traction.
31 Alternatively, it is possible that he placed the front of his foot onto the slope first, rather than the heel, because of the rise in the Kerb and did not put his heel to the ground first, as one would in normal walking on a level surface.
32 On this analysis, it would appear that his foot could have slipped if Mr Carter stepped on the Kerb with either his heel above the road level on the sloping surface, or his forefoot first. Mr Chew refers to human gait in his second report (page 6). Otherwise, neither of the expert witnesses addressed the issue of the positioning of a foot on the Kerb, or the length of the slope in terms of an adult foot, or the mechanism of a fall.
33 Mr Carter was not cross-examined on the mechanism of the fall. He was asked about his shoes. They were three month old 'Adidas' trainers. There was no criticism of his footwear. He did not accept the Kerb was something to be stepped over and said he had walked on it before when it was dry (ts 49). It was suggested to him that it was a risk to step on the inclined surface. Mr Carter did not accept this, wet or dry.
34 I accept on the balance of probabilities that Mr Carter slipped on the kerb when he stepped on it, in one or other of the manners I have described.
35 I accept that the Kerb was likely in general terms to be more slippery when wet than dry. Unpainted smooth concrete would also be more slippery when wet. That much is common sense. The case for Mr Carter is that, not only did he slip on the Kerb, but also that this was the result of a breach of statutory duty by the defendants, particulars of which have been set out above, but bear repetition.
36 Failure to:
1. warn of inherent dangers;
2. take reasonable precautions to ensure that Mr Carter would not suffer injury;
3. consider the gravity of possible injury;
4. take steps to warn of the risk of injury where it would be easy to do so.
The other evidence of fact
37 Mr Yuryevich is the manager of the Railway Motel. His evidence was that the Kerb was painted yellow for the purposes of visibility. It was expected that people would walk that way. He said that this was a sensible precaution to take, particularly at night, to ensure visibility. Mr Yuryevich was aware of the Dulux Roadmaster paint 'properties sheet' (Annexure B to Dr Chew's report #1) and the recommendation in it to consider adding grit in pedestrian areas. He was under the impression that there was some non-slip value to the paint itself. I am not convinced that he considered the issue of a slip hazard, prior to the accident. He considered it to be a kerb, not a walkway. He did not want people to trip over it. He said most people stepped over it. He left it to the 'maintenance man' to sort out the details of the paint with the paint supplier. I do not on balance accept it was painted for the purpose of increasing the co-efficient of friction between the Kerb and pedestrians' shoes.
38 Mr Yuryevich's evidence that the kerb was painted for visibility is cogent. The paint used was yellow. The 'properties sheet' recommends it for road markings, car parks and pavements amongst other uses. He said it was painted for two reasons, to show it was a kerb, and to indicate the path to the rooms. He also said it helped when giving guests directions to their rooms.
39 The obvious potential danger in a kerb, or step of any kind, is that people will either trip up it, over it or fall down it. This was a sloped kerb, but it was still an edging stone. In that sense, Mr Yuryevich's claim that it was to be stepped over is a valid point of view. He described it as 'highlighting' for the stepping areas.
40 The more significant observation is that it was marked by painting it yellow, to draw attention to it and thus to warn of a potential danger.
41 Mr Carter rejected the suggestion that it was 'necessarily risky' to step on the Kerb, when this was put to him. This proposition was urged also upon me in submissions. Using such terminology in cross-examination of a lay witness does not advance the issues. No doubt counsel was trying to suggest a want of care on Mr Carter's part. The evidence was that he was fit and sober, had eaten on the train, was wearing running shoes and socks, carrying an overnight bag in one hand and another bag with his Bible in the other. He walked across the driveway to the pathway. It had been raining but was not at the time. He was thinking only about going to his room, a routine thing. He could see the pathway, he put his left foot there and it 'went backwards and he went forwards'.
42 To my mind, it is obvious that stepping onto an incline of any significance entails greater risks than stepping onto level ground. That much is common human experience. It was a variation in the route to the room which was to be negotiated. It was pleaded by the defence that Mr Carter was negligent, in fairly standard terms: failed 'to keep any or any proper lookout' and failed 'to take an or any proper care for his own safety as he mounted the curb [sic]'. This was a live issue.
43 The suggestion that the Kerb was painted to warn people not to step on it cannot be accepted, in those terms. Mr Yuryevich said he had stepped on it in the wet since the accident, but that he expected people would step over it. There are a number of these kerb stones on edges at the Railway Motel where the management must have expected a high volume of pedestrian traffic, not all of whom would be perfectly steady on their feet or wearing steel capped boots.
44 I accept that kerbs of this kind are common in the construction of car parks and roadways in Australia. Certainly, it was not suggested that there was any breach of the building and construction requirements in Kalgoorlie.
45 Mr Yuryevich's evidence was that there had been no other accident at this location whilst he has been manager in the last 10 years. The kerbs have been painted for those 10 years, annually. That assertion was not contested. I conclude that people using the premises to access the motel rooms stepped up, down or over the Kerb, or otherwise negotiated it safely.
46 In my view the evidence establishes that the Kerb was painted to warn people that it was there; that it was an edging to the pathway where that pathway intersected the driveway. It is not a 'squared off' kerb, which would be almost impossible to step on, but easy to trip over. A square kerb is also difficult to wheel a bag or suitcase over. The semi-mountable kerb design was likely to have been chosen to avoid damage to vehicle wheel rims, whilst facilitating guests with wheeled bags. Access to the disabled rooms had 'cut aways' for wheelchair access.
47 The Kerb was, nevertheless, an obstacle to pedestrians who had to negotiate the driveway to reach the pathway to the guest rooms. The significant point is that it was made visible to pedestrians by painting it.
The slip resistance of the Kerb
48 It was pleaded that the Kerb had been recently painted. The allegation of 'recent' was not pursued. The evidence of Mr Yuryevich established that repainting was an annual event in January or February. The case for Mr Carter was put on the basis that the painting of the kerb made the slope more slippery than naked concrete.
49 Mr Dunning, a materials engineer called for the defendants, examined the scene and tested various surfaces on 8 July 2015. Dr Chew, a mechanical engineer called for Mr Carter, considered photographs and documents supplied to him, including Mr Dunning's reports.
50 Mr Dunning was instructed to test the slip resistance of the surface of the Kerb, an area of unpainted kerb in the car park, and areas of similar painted or unpainted concrete kerbing in the vicinity. He took measurements and photographs at various locations at the premises. He produced a diagram of a cross-section of kerb, with a table of the measurements he had taken at various locations. It can be seen that there are some minor variations in kerb dimensions but essentially they have the same presentation.
Kerb Profile – fig 1 from Dunning report (#1)
Dimensions of selected kerb locations – table 1 from Dunning report (#1)
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51 The incident Kerb had been repainted the day before Mr Dunning's inspection. The new paint contained grit (30 g per litre of aggregate), so although it was tested, another site was used to approximate to the surface of the Kerb at the time of the accident. He was directed to other similar kerbs by Mr Lowe, the maintenance man. However, he had no information as to how long those kerbs had been painted.
52 He formed the opinion that the kerb was a 'semi-mountable type' and that it would be assessed in accordance with AS2876-2000, which is the Australian Standard (AS) for kerbs.
53 To conduct his tests he used the 'Wet Pendulum Test Method' in accordance with AS5663:2004 and a 'TRL' rubber slider. There is a 2013 version of the same AS, but he 'used the earlier one because the accident was in 2011'. The TRL slider he described as 'the traditional rubber slider used for clay and concrete pavers', as stated in note 2 to the AS.
54 He did not test the sloping surfaces, but used the horizontal top section with a width of 54 mm - 55 mm. The pendulum slider is 76 mm in width. A photograph of the pendulum was included in his report at Fig 8. This shows how the machine sits on the top of the kerb. It can be seen that it would not be possible to measure the slope using this method. There is no machine to measure inclines such as this, according to Mr Dunning. He had to 'gross up' his results from his tests to obtain a friction reading appropriate for the published values of required slip resistance. He applied a multiplier of 1.38, being the ratio of 76:55. He then calculated mathematically the slip factors on sloping kerbs, with a formula taking into account the degree of incline. He assumed that the relationship between the result for a narrower portion and the putative result for a full testing width was a linear one. He accepted that he had no guidelines or authority for this approach.
55 He noted in his report that the AS stated 'indicative results show that when testing directly up or down a slope of up to 20% the reading may vary by +/-2% from that obtained if the same surface was horizontal.
56 He also tested the paint on the crosswalk, which enabled a full width test. He assumed that it was the same paint as was used on the kerbs. The crosswalk appears to be on a tarmac surface not on concrete. He said 'it was considered to be similar to a concrete or paved surface'.
57 In addition, he tested the painted surface of a footpath around a memorial in the station car park, across the road from the Railway Motel. This was done using the full surface of the slider. There is no comment in his report as to whether the same type of paint was used here, or about those surfaces.
58 The results are given in 'BPN', which designates 'British Pendulum Number', read from the scale on the machine. The higher the number the greater the friction of the surface.
59 Mr Dunning's results were:
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Location 1 |
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Location 2 |
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Location 3 |
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* Freshly painted with some form of non-slip additive included
60 He conducted further tests off-site, using a concrete paver and the Dulux Roadmaster A1 yellow paint, which he had been informed was the same as that used at the premises. He caused the paver to be painted in five locations with both paint that had aggregate added and paint that had not. They were tested in wet and dry conditions, on two occasions three days apart.
61 His overall conclusions, in summary, were:
1. the kerb was not a ramp;
2. a ramp component of a path is to be a maximum of 10 degrees;
3. the incident Kerb had a slope of 31.9 degrees;
4. there are no Australian Standards or Building Code standards requiring a kerb to have a minimum slip resistance;
5. the incident Kerb (newly painted and gritted) had BPN of 46, the old painted kerb (at room 55), had a BPN of 58, the cross walk had a BPN of 54;
6. the newly painted paver, tested after seven days, had a BPN of 44 plain and a BPN of 67 with aggregate;
7. assuming the kerb outside room 55 was effectively the same as the Kerb, at the time of the accident, it had a very low contribution to the risk of slipping when water wet.
62 Dr Chew, agreed that the Kerb was a 'low impact mountable type'. He referred to the Dulux Roadmaster paint brochure and Australian Standards for pedestrian surfaces and annexed these to his first report. He based his original opinion on a 10 degree gradient on the kerb in wet conditions. His analysis therein was of 'walking down a ramp'. He concluded that such a slope presented a very high slip risk and that non-slip additives should have been used. He clearly had inadequate instructions, at the time of his first report. He did however consider the issue of the slipperiness to a shod pedestrian.
63 In his second report, commenting on Mr Dunning's work, he addressed the suitability of the slider on the pendulum used by Mr Dunning to conduct his friction tests. There are two types of rubber recommended for a slider used in the pendulum testing of wet surfaces. They are described as 4S and TRL rubber, now known as 'number 96' and 'number 55' rubber for sliders. TRL is said to be for concrete pavers. Four S is said to be for pedestrian surfaces (note 2, p 4 AS4663:2004). Mr Chew was of the opinion that 4S should be used because it was concerned with a pedestrian surface. TRL is used, according to Mr Chew, for barefoot pedestrians on wet concrete or paver surfaces. Four S is used for shod pedestrians, as it resembles the rubber on shoe heels.
64 The requirements he referred also appear in Australian Standards, AS4663-2013, only using the numbers 96 and 55 to distinguish the different rubbers.
65 Mr Chew is critical of Mr Dunning's interpretation of the results for the TRL tests. In the AS4663-2004 there are only two categories of result when using TRL rubber: 'Very low', for a BPN over 44, and 'low', for a BPN at 40 - 44. In Mr Dunning's table 3 set out above, he had results for values under 40. Mr Chew pointed out that those results clearly did not come from the AS, in relation to TRL which shows:
TABLE 1
INTERPRETATION OF THE WET PENDULUM RESULTS
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* While either of these rubbers may be used, the test report shall specify which was used.
The term 'notional' has been used to highlight the need to consider all potential contributing factors to a slip incident
NOTE: It is expected that these wet surfaces will be more slip resistive when dry.
66 In my view, Dr Chew's criticism, although accurate, is in this regard of minimal relevance to the facts in this case.
67 Considering the calculations of Mr Dunning, and the grossing up his results for the narrow top of the kerbs, Mr Chew said
in my experience AS4663-2004 had not sanction [sic] Mr Dunning's calculation method. I do not know the scientific basis of Mr Dunning's calculation method except as noted above.
68 He referred to a 2009 report from a study of pendulum slider dimensions prepared by the UK Health and Safety Laboratory looking at 76 mm and 38 mm sliders. The data showed that the relationship between BPN and slider width was not a linear one. He attached an excerpt from the table included in that paper:
Table 3.1 from appendix D
Surface | Surface ID (Figure 4) | Rz (µm) | Mean PTV | |||
Dry | Wet | |||||
76mm | 38mm | 76mm | 38mm | |||
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69 On these figures, his point is clearly demonstrated.
70 Mr Chew also criticised the tests on the newly painted concrete paver conducted off-site by Mr Dunning, due to the use, again, of TRL rubber and the lack of evidence that the bare surface of the test concrete was the same or sufficiently similar to the Kerb. Mr Dunning reported was that it 'appeared' to be similar. Further, the standard requires testing at a minimum of five locations. Five sections of the one paver would not appear to comply to produce a statistically reliable results, according to Dr Chew.
71 He noted the result for the repainted Kerb (gritted), in table 3, given as 46 BPN after adjustment, 33 BPN if the 1.38 multiplication were removed. He pointed out the great variance between these results and the test slab results of 60 and 67 BPN. He suggested that this showed either that the test concrete surface was rougher than the Kerb, or that there were problems with Mr Dunning's methods.
72 Mr Chew concluded that effective measures to minimise the risk to pedestrians slipping on the sloping kerb would require re-profiling the kerb to an angle of 10 degrees or less and ensuring it had an adequate slip resistant surface such as paint with grit added. Mr Dunning and Mr Chew agreed that for a 30 degree angle grit would not have provided sufficient friction, in any event.
73 Considering the evidence of both Mr Dunning and Mr Chew, a number of problems with the results provided by Mr Dunning emerge:
1. the use of the TRL slider;
2. the method adopted by 'grossing up' the actual reading from the narrow section due to the inability to measure the sloping surface or a similar sufficiently wide surface; and
3. the inconsistent results, showing less friction in the 'gritted' new paint than in the old worn paint.
74 Further, there are assumptions made by Mr Dunning underpinning his reasoning and testing which can be validly criticised:
1. that the slip resistance of a 30+ degree slope can be calculated by testing a flat surface – the AS note says results show +/-2 degree variance at 20 degrees. There is no reference to greater inclined surfaces;
2. there is no evidence that a concrete paver that 'appears to be the same' as the Kerb is sufficiently accurate for testing purposes; and
3. that the painted crosswalk, on bitumen, was comparable at all to the Kerb.
75 The Kerb's surface was part of a route to be used by, presumably, shod pedestrians. It was painted. I am unable to understand why Mr Dunning thought that a rubber used to test concrete or pavers for barefoot pedestrians would be the most suitable.
76 When asked about his choice, he said that the '4S rubber was for internal surfaces as well', that 'it can distinguish between different levels of co-efficient of friction on smoother surfaces' and 'the TRL would give a higher reading than the 4S rubber' meaning greater slip resistance. None of these statements indicates to my mind a scientific assessment of the choice of TRL rubber or establishes it was appropriate. In fact, they would appear to indicate the opposite. The result is that his choice of slider produced results suggesting that the co-efficient of friction was greater than it would have been using the other type of rubber (4S) on the slider.
77 His results were tendered to show that the surface of the Kerb, painted or not, had a very low contribution to the risk of slipping on that surface. However and significantly, Mr Dunning produces the only measurements of this kind taken from the premises.
78 I conclude that I can have little confidence in Mr Dunning's figures or opinion, for the following reasons:
(a) I do not accept, without authority or mathematical reasoning and justification, his method of calculation using a narrow sample area with a wider slider. The research referred to by Mr Chew at par [this is set out table 3.1 from app D at page 19 above] shows the relationship was not linear and Mr Dunning gave no basis for his assumption. An expert's opinion should have proven factual foundations and patent reasoning. Without which it is of no evidential value.
(b) It defies reason to obtain a result that the newly gritted, painted surface was more slippery than an unpainted kerb.
(c) I have reservations whether the method and considerations had any relevance at all to a slope around 30 degrees.
(d) Mr Dunning made no comment about the fact that the relevant AS for Kerbs did not require a minimum slip resistance.
Summary of findings of fact
1. Mr Carter slipped when he stepped on the Kerb;
2. the surface of the Kerb was smooth, when contrasted to the stairs on the premises;
3. the Kerb was painted yellow for visibility, on an annual basis;
4. there had been no other accident involving a kerb at the Railway Motel in 10 years, at least;
5. there were a number of similar kerbs on the premises, of dimensions set out in par [50].
79 I am unable to make a finding that the slope of the Kerb was more slippery when painted than naked concrete, on the evidence before me. Mr Dunning's evidence does not establish or negate that fact. Mr Carter's case asserted the fact but lead no evidence to substantiate the propositions. However, I accept that it was slippery when wet and sloped at about 32 degrees.
The law
80 This case falls to be considered under the s 4 OLA. Although pleaded also in negligence, counsel for Mr Carter conceded that the standard of care applicable was that in s 5 OLA and otherwise s 5B and s 5C of the Civil Liability Act 2002 (CLA) applied.
81 Section 5 OLA provides:
5. Duty of care of occupier
(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
83 Section 5(4) OLA provides:
(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a) the gravity and likelihood of the probable injury; and
(b) the circumstances of the entry onto the premises; and
(c) the nature of the premises; and
(d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; and
(e) the age of the person entering the premises; and
(f) the ability of the person entering the premises to appreciate the danger; and
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
85 The second question is whether the Railway Motel took such care as in all the circumstances of the case was reasonable to see that no person suffered injury due to the danger, considering the matters in s 5(4) OLA.
86 Any fall onto a hard surface may be considered to have potentially serious results, in terms of physical injuries and consequential losses. Mr Carter was a guest at the Railway Motel, and thus invited and expected to be there, and to take the route which he did to his room. Mr Carter was an unremarkable member of that class of persons who might stay at the hotel.
87 Section 5(4)(g) OLA is particularly relevant in this scenario.
88 If one accepts that the danger was one of falling due to the presence of the Kerb, and Mr Carter fell, the principles in s 5B of the CLA are also relevant:
5B. General principles
(1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless -
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
- (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) -
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
90 The evidence is that the response of the Railway Motel's management to that risk of falling was, and had been for at least 10 years, to paint kerbs yellow, where people were expected to traverse them.
91 Was that a reasonable response to the risk of falling at the kerb? And what was the burden of otherwise taking precautions against the risk, compared to that risk? It was submitted that grit should have been added to the paint as a precaution.
92 I consider that the likelihood of an accident at the Kerb was very small, due to a number of facts: there had been no similar accident in 10 years; this was one of many kerbs on the premises; and such kerbs are generally commonplace. Thus, the risk itself was of a low probability of occurring. The potential injury from a fall could vary from minor to serious.
93 It is apparent that the response to having the Kerb between the driveway and the pathway was to make it more visible, by applying yellow paint. That was, in my view, a reasonable response to the danger of a person unwittingly falling at the Kerb. Implicit in that response, is an intention or expectation that the guests would be able to negotiate the Kerb, assuming those guests saw it was present.
94 On the afternoon of 26 October 2011 the Kerb was, because it was daylight and the kerb painted yellow, clearly visible. As it was at the border of the driveway, and part of a longer kerb edging that driveway, it cannot be considered to be unexpected. Mr Carter did not claim to have been surprised by it.
95 Counsel for Mr Carter found himself a 'little bemused' by the proposition that the kerb was not meant to be stood on and posed the rhetorical question 'why would you change your gait to go over it?' It was submitted that there was no obvious danger. His case was premised on the proposition that it was more slippery once painted. He relied on a concession said to have been made by Mr Yuryevich (ts 236). But Mr Yuryevich's point was, that the kerb was very steep and he found it quite difficult when he tried stepping on it. He agreed that it was at an angle which could cause a foot to slip. This said nothing about relative traction or the lack of it.
96 This is a case in which language and the manner in which, as a result of language, a situation is conceptualised may colour judgment about an issue. Mr Chew, wrongly, in my view, initially called the Kerb a 'ramp', and then analysed the safety situation from that view. That of course would have resulted from the information he had been initially given.
97 The statement of claim is pleaded in terms of a 'pathway'. However, the critical point was a kerb. A kerb is 'an edging to a pavement or raised path' (Shorter Oxford). In that sense, it could be said to be a part of the pathway. It nevertheless was a boundary and a step up or down, between levels. It could have been a 'squared off' kerb, which may have been inconvenient for guests with wheeled cases, and staff with trolleys.
98 There is no reliable evidence which persuades me that the Kerb was made more slippery by painting it than bare concrete would be in wet conditions. There was also evidence that gritting the surface, at that angle, would be inadequate. According to AS, there is no requirement for kerbs to be non-slip, presumably because of their function.
99 Painting the Kerb was, in my view, a clear warning that it was there. It had clearly been effective as such.
100 There was no evidence adduced of the cost of other remedies, but I consider that completely remodelling this Kerb (and all other similar kerbs on the premises) would not be reasonable in the circumstances. It would necessarily involve considerable work and expense and this was a common or garden kerb.
101 In terms of s 5B(2) CLA, there was a low probability of harm, which if it occurred would be due to falling. That might be serious, but not necessarily so. The Kerb was an edging stone reasonable for its function in that position. Walking from reception to a hotel room was a common unremarkable activity. The further precaution urged by Mr Carter, that of adding grit to the paint, would not be effective to remove the slipping risk. The visibility of the edge had been addressed with yellow paint. Other precautions for ordinary pedestrians might possibly be a remodelling of every such kerb. This was uncosted and no evidence was lead about it. Necessarily it would involve significant work. In my view on that limited evidence, that remedy would be excessive.
102 For the reasons above, it has not been established that the defendants failed to warn of inherent dangers, or take reasonable precautions to ensure no injury or warn of the risk of injury. I find that by painting this Kerb and other similar kerbs with Dulux Roadmaster yellow paint, the management of the Railway Motel warned of the presence of the kerb by making it more visible, so that visitors could safely negotiate it. Neither is it established that management failed to consider the gravity of possible injuries. In making the Kerb more obvious, the purpose, apart from directional guidance, was to avoid falls at the Kerb, particularly in lower light conditions.
103 Accordingly, I am not persuaded that the defendants breached their duty of care under s 5(1) OLA to Mr Carter.
Alleged negligence by Mr Carter
104 If I am wrong about liability, I am persuaded that Mr Carter failed to take care for his own safety. I believe it is more likely than not that he misjudged his stride in the transition from the driveway to the pathway, placing his foot on the 31 degree slope. In my view, this is something that a careful person would be unlikely consciously to choose to do, particularly if the surfaces were wet. It would be awkward, stretch the Achilles tendon and calf muscles and risk slipping, stumbling, or otherwise falling. This is a very good reason to 'change your gait' to step over it. Mr Carter was simply walking to his room. I believe that he misjudged the situation, probably unconsciously, stepped on the Kerb, and unfortunately fell. The pleading that he 'failed to take any, or any proper, care for, his own safety as he mounted the kerb' is thus made out.
105 My conclusions therefore require that Mr Carter's claim be dismissed.
106 Had I found in favour of Mr Carter, I would have assessed his damages as follows.
The medical evidence and injuries
107 Mr Carter's medical history can be summarised as:
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Mr Carter's evidence
108 Mr Carter said that when he went to the hospital, his right arm was 'the issue', that it was X-rayed and found to have an undisplaced fracture of the radius head. He said his right knee was sore as well and he felt a pain in his left lower back.
109 Prior to the accident he said his back was 'fine', although he had earlier had surgery in 2009. He had other medical issues, including lymphoma diagnosed in January 2010. He had received chemotherapy.
110 He has Type 2 diabetes and high blood pressure.
111 He saw Dr Farquhar, his GP, on his return from Kalgoorlie. His arm was checked and immobilised until January. He received painkilling and anti-inflammatory medication. His back caused him pain also and he underwent investigations of it. He saw Dr Michael Kent for 'root sleeve' injections to relieve pain and also saw Mr McClosky, a neurosurgeon. He suffered pain and numbness in his left leg; he had trouble sleeping. Ultimately, he had surgery on 14 August 2014, performed by Mr McClosky. He has slowly recovered. He is taking exercise including walking, physiotherapy and home exercises. He avoids heavy lifting.
112 He took a range of painkilling medications, but said that he had decreased these greatly in the last three months prior to October 2015 to the point that he hardly takes medication.
113 The situation has affected him in other ways, which he described as getting and 'angry and upset' about the accident, 'irritable with people'. He had trouble sleeping and found it frustrating not to be able to do normal physical activities or pick up his grandchildren. He has found these things hard. However, he described working hard to regain his fitness. He said he had some really good days and others when he was quite sore.
114 He resigned as a director from the company employing him in 2011, before the accident, because of his lymphoma. He was receiving chemotherapy which made him ill at that time. He worked, full-time, as the general manager up to the accident, earning about $10,000 per month.
115 After the accident he received workers' compensation payments and was able to work a few hours a day. He held a 'credit provider licence', and was the only person able to approve loans in the business. He did some work from home.
116 In March 2012, he felt he could not go on at work. He found work stressful. Shortly after this time, the business went into liquidation.
117 He approached a job seeking company; 'Seek' online. He applied for work, in credit provision, management and debt collection. He had experience in the printing business in the past and looked for work in this area and various other positions. He did a property management course in 2012. He estimated he had applied for 100 – 150 jobs.
118 He then obtained some work, by chance, in the Riverton TAB, on a casual basis in 2013. He was subsequently offered a position in Cannington TAB. He now works about 50 hours per fortnight and is paid $25 per hour. He has also done some work on Saturdays at Perth Racing.
119 Dr Graeme Farquhar confirmed he treated Mr Carter on his return to Perth, for his broken arm. He also discussed his back pain, on 13 December, at which time Mr Carter told him he had been suffering lower back pain since the accident. Initially, Dr Farquhar said his focus had been on his arm.
120 He said Mr Carter's spinal pain went back to 2006, and he had an operation in 2009. There were, following that, two exacerbations, which settled; one on 21 December 2010, the other in May/June 2011. He had noted these as 'Right L5/S1 facet joint' pain. When asked about Mr Carter's subsequent problems being on the left he said there was a degree of degeneration in his back and it was not uncommon to see this. He said sometimes clinical and radiological observations did not 'marry up'.
121 Dr David Kennedy is a medico-legal consultant approved by WorkCover. He is employed to assess injury and impairment. He assessed Mr Carter in November 2012, September 2013 and 13 August 2015.
122 He summarised Mr Carter's condition on his last assessment in these terms:
Mr Carter still has issues with the right elbow with repetitive upper limb activities and he has difficulties lifting with the right hand and anything above 10 kg is not possible. Mr Carter has had some physiotherapy and continues with some exercises as he notices weakness in the right arm and hand.
There is persistent low back pain with an average pain level of 4/10 but it can go up to 7-8/10 particularly when coughing or sneezing. There is numbness in the left foot involving the four smaller toes and the outer side of the left foot is also numb. The shooting pains down the left leg are less frequent but do occur with any load or stress on the lumbar spine.
Mr Carter has sitting tolerances of only about 30 minutes and standing, about 60 minutes with discomfort, especially leaning forward, and Mr Carter feels that he is now constantly moving around to avoid stiffness in his lower back.
On re-examining Mr Carter's right upper extremity there was tenderness over the lateral epicondyle and the common extensor tendon origin, extending into the common extensor musculature. There was tightness on flexion and particularly extension and supination, but there was a full range of movement with some tenderness over the radial head and the proximal radioulnar joint. With the use of a Jamar dynamometer, the average grip strength test in the left hand was 22.6 kg of force and in the right hand was 8.7 kg of force, but this was associated with significant pain inhibition.
On re-examining the thoracolumbosacral spine there was a linear longitudinal surgical scar from L3 to S1 now measuring 8 cm with an extension of the previous surgical scar which measured 3 cm for the surgery on the L4/5 intervertebral disc and the extended surgical scar was for the posterior fusion of L5/S1. There was tightness and tenseness over the erector spinae and paravertebral musculature with tenderness over the lower lumbar region. There was significant reduction in the range of motion of flexion and, to a lesser extent, extension and lateral flexion. The straight leg raising test was tight to 70 degrees on the left and 80 degrees on the right with an equivocal stretch test. The deep ankle reflexes were very sluggish, worse on the left side. There was altered sensation to light touch over the lateral side of the left foot, extending to the lesser toes, but not the great toe.
…
Mr Carter has restrictions in competing on the open labour market because of the problems involving his lumbar spine and right upper extremity. Provided that he is able to continue with sedentary work, Mr Carter should be able to work up to 30 hours per week provided that he can alternate his work station between sitting and standing as required.
…
Mr Carter's impairment evaluation of his right upper extremity has changed as he now has significant pain inhibition with the reduction in grip strength in his right hand. The injuries to his right elbow region involve the common extensor tendon origin with damage to the common extensor tendon origin which has been assessed under WCWA 3rd Edition Chapter 4, Sections 4-18 to 4-20 and WCWA 3rd Edition Chapter 3, Section 3-26 in relation to equivalent and analogous conditions and Mr Carter has been assessed as having a 2% whole person impairment due to the ongoing problems involving his right upper extremity.
Mr Carter, therefore, has a final whole person impairment, utilising the Combined Values Chart of AMA 5 (p 604), of 24% combined with 2%).
123 There was an issue about the location of the earlier laminectomy surgery. This was resolved when Mr Kennedy accepted a typographical error in his report. Both the 2009 and 2014 operations were at L5/S1.
124 Mr Eamonn McCloskey is an orthopaedic spinal surgeon who treated Mr Carter in 2012 – 2014, after a referral from his GP. Initially, in November 2012, he referred Mr Carter onto Michael Kent for control of pain and symptoms, which was effective at that stage. When Mr McCloskey next saw Mr Carter, he returned with left leg pain in April 2014. They then talked about surgery, which Mr Carter considered and decided to pursue. Although this was planned for October 2014, a decompression fusion was carried out on 14 August 2014, due to a severe exacerbation of his leg pain. The procedure was performed on left L5 nerve.
125 Mr Carter was reported, in January 2015, to be doing extremely well, receiving physiotherapy. Mr McCloskey did not thereafter require to see him. There was no challenge to the surgeon's evidence.
126 Mr Hardcastle is a consultant orthopaedic surgeon practising in Osborne Park. He reviewed Mr Carter on 3 April and 12 November 2012, 20 September 2013 and 13 August 2014 and prepared reports. He was provided with Mr McCloskey's and Mr Vaughan's reports.
127 On 13 August 2014, he took an updated history and full clinical assessment. His written opinion was given as:
The symptoms evidently persisted and he was under Mr McCloskey who had planned to proceed with surgery, but there was an acute exacerbation around June 2014 and surgery was performed shortly after with an L5-S1 fusion. I do not have any specific details or any post-operative x-rays so I have arranged for these to be undertaken.
He has made an uncomplicated recovery in relation to the fusion and reports significant relief of symptoms. He had been able to get a work position with the TAB prior to the fusion and has been able to return to this position now and current treatment is with some regular walking and medication.Reviewing all the radiology and his clinical findings he should have an excellent prognosis in relation to the surgery. The deconditioning effect of the previous chronic low back disability that he had requiring a laminectomy combined with the effects of the chemotherapy including his weight gain would all be considered factors in his deconditioning. It does take a long period of time to fully recondition after these taking into account also he has had the more recent surgery.
…
He still has complaints in relation to his right elbow of a mechanical nature and his low back symptoms are predominantly in the lower back but he does have some thoracic pain now in the lower part with some numbness in the lateral aspect of his left foot.
…
His clinical findings for the right elbow is essentially unchanged appreciating that his grip strength is probably a little less now on both sides but this is not of any specific relevance.
His lumbar examination findings apart from the operative scar being larger are relatively similar with some numbness over the lateral left thigh, leg and foot being present but this was also there at the time of my last assessment and relates most likely to his laminectomy.
…
He did report that he had been asymptomatic since the laminectomy having had excellent relief of pain but there is an MRI scan of 21 April 2011 making reference to a fall backwards in April 2011 with severe back pain. This is important in that it does indicate even at that stage before the subsequent fall that he was susceptible to the degenerative L5-S1 segment causing problems. It would be appropriate to review the clinical files of his treating team in this period as it is a long time ago, and my understanding that when I initially reviewed him on 3 April 2012 he had no previous problems following the laminectomy, but clearly there was at least one other episode.
…
I would be of the opinion that the L5-S1 fusion would have been necessary even without this particular fall. The fall has more likely brought forward the necessity for a fusion by a period of potentially a year. It has to be taken into account that he had a previous fall backwards with severe pain in May 2011.
…
The prognosis for the elbow should be good and there were no adverse clinical findings.
I would also expect an excellent prognosis for his lumbar spine now that he has had a stabilisation as this should overcome any of the issues at the L5-S1 level and he has got a normal spine above which is stable and should not cause any specific problems for a long period of time.
128 In his evidence, the issue explored was the likely time at which he would have come to a fusion without the fall, as his opinion was that it might have been brought forward by a year, whereas Mr Vaughan had reported within a 5 - 10 year period.
129 Dr Hardcastle adverted to the differences between the focus of an orthopaedic or a neurosurgeon, and the large number of variables involved in such an assessment. Not all of his views have been borne out in the time since this opinion, particularly with respect to the elbow.
130 Mr Vaughan is a neurosurgeon who holds the position of emeritus consultant at Sir Charles Gairdner Hospital and is a clinical professor at University of Western Australia. He did an assessment of Mr Carter in October 2014. He concluded:
He had ultimately made a full recovery from the lymphoma and had returned to full time work when he suffered the accident/fall.
He was adamant that he was free of back pain when he had left the train to the time of the fall outside the Railway Motel as described – and was in pain thereafter – with back and leg pain and by his description more into L5, less S1.
Multi-degenerative changes had been discerned on MR post the fall – the accident, but reference made to an examination of April 2011 and to the appearances being unchanged (see earlier comments).
He nevertheless had a back at risk, underlying state though not symptomatic by his history in the preceding time back to 2009. If he was symptomatic in that time then more relevance would be placed on that existing but which he states became so (symptomatically with the fall).
It would seem by his history that the underlying condition has become significantly aggravated by the fall though no new pathology had been discerned early; though later more settling noted (by 2013).
I note Mr Hardcastle's opinion of the expectancy of a good recovery from the lumbar injury but that did not prove to be the case.
…
In relation then to the lower back state, I did not form a view that all the presenting symptoms were the result of the accident alone but nevertheless the accident the fall, has made a significant symptomatic contribution.
…
I believe he may have come to fusion surgery in the longer term over a 5 - 10 year period with the expectancy of continuing degeneration across L5/S1.
What appears to have happened then is the force of the fall significantly aggravated the underlying state to become symptomatic earlier than would have been the position and so earlier surgery.
…
At this time I believe he will be capable of full-time work in a sedentary role-capacity not involving any long periods of driving and where he is able to move around an office. That is, I believe he would be at risk with aggravated pain sitting for any long time but not where he could both sit, walk around, discuss and rise and would think him capable of doing that now if the opportunity was to occur.
He does have progressing discomfort using his right upper limb that should improve with further exercise. I believe in a managerial position he would not require constant computer but adjust to using his left hand/arm as he has in recent times.
131 Further, he was asked about future surgery in evidence and added:
So when you gave your opinion in estimating how long it might take for this man to come to surgery, fusion surgery in the future, what was that based upon? Was it anything particular to do with him or a – a general experience of similar situations? --- Well, it's based on him, but that from a – a knowledge of some years of – or many years of practice and what may happen. Of course, that may be a wrong decision too, but you have to make what is a reasonable decision based on the facts and then come up to a conclusion. It would be good to be tested in some way, but it's not able to be.
Because there are also – presumably may be other external forces at work subsequently that could have a contribution? Absolutely. Absolutely.
Conclusions as to medical consequences of the accident
132 There was little difference of opinion among the medical witnesses.
133 Basic facts were not in dispute. Mr Carter had previously suffered a back problem, had surgery, recovered substantially and worked hard to get fit. Prior to his fall, he suffered exacerbations of back pain and leg pain and had also suffered lymphoma which involved him in chemotherapy.
134 It was common ground that he would be vulnerable to back issues in the future, but clearly he had shown himself motivated to maintain his health and fitness.
135 There was no medical difference of opinion but that he would ultimately require a fusion. The precise timing of this, in my view could not be expected to be predicted with any accuracy, due to the variability in circumstances that might occur, plus Mr Carter's perceptions of them at the time and the choices he made for treatment.
136 The different specialists expressed differing views on that timing based on their respective expertise and assessment. In my view, such attempts to foresee the future were so imprecise as to add little to the assembled useful evidence. I can only conclude that the fall brought forward his ultimate spinal fusion by some years.
137 I accept Mr Carter's account that he suffered back pain after the incident. I see no contradiction in the fact that it was not the most pressing problem initially and that his elbow attracted the most focus. On the whole of his history and presentation, I do not find him to be exaggerating his problems. He is clearly a man who took rehabilitation seriously after his micro-discectomy in 2009 and, despite some aggravations, I accept he was symptom free before the incident. A fall for a man of his age, with a history of back degeneration and injury, was likely to cause aggravation to his spinal processes. He ultimately had a fusion at L5/S1 performed by Mr McCloskey in August 2014, brought forward on by a significant episode of pain and malfunction.
138 I reject the suggestion that the back problem was entirely due to the pre-existing back condition.
139 In my view, he suffered a relevant injury to his back associated with his fall. However, the predominance of the evidence is that he would have come to fusion in any event at some stage. The nature of this evidence is not such as to enable a precise calculation of the acceleration of that surgery.
140 Apart from his back, Mr Carter continues to suffer pain and some loss of strength in his right, and dominant, arm.
141 In my view Mr Carter's earning capacity has clearly been diminished by the consequences of his injuries.
Other factors relevant to assessment
142 In October 2011, Mr Carter was 58 years old. It is suggested he would have worked until he was 70. I do not accept this would be the case having regard to his other health issues, even if well treated, and the vulnerability of his back. I believe 65 to be a more reasonable forecast.
143 The fusion operation in August 2014 was almost three years after the accident. I am persuaded Mr Carter did not on that chronology show a tendency to rush into such treatment. I consider that, but for the accident, it is more likely than not he would have reached retirement age (65) prior to surgery. He had shown a firm commitment to his own health in the past. Of course, there is always the risk that some other untoward incident could have accelerated surgery or his general health or other circumstances might have led to early retirement.
144 Mr Carter had held employment in a business called Aussie Cash Collections Pty Ltd (ACC). This was in effect a 'pay-day lending' business. It was owned through a holding company, together with 17 other companies, in a trust structure controlled by Mr Carter's brother, Rodney, and his wife who gave evidence of these details. Mr Carter held the relevant licence to provide credit to people through the business. Due to complex tax and legal issues, and the security held over ACC in the company structure, the ACC was insolvent, although, if it stood alone, it would have been a viable concern. It ceased trading in April 2012. All other subsidiary companies were also wound up.
145 The result of this was that Mr Carter was unable to continue in that employment after April 2012. He nevertheless received workers' compensation payments until 21 November 2013. He had returned to work part-time from mid-December 2011 until March 2012.
146 The result was that, before and after his workers' compensation entitlements were at an end, he was required to seek employment on the 'open market'. It is not necessary to make any specific findings about what would otherwise have occurred, but one might expect his return to work would have been easier in his pre-accident employment, but for the severe financial problems and ACC's closure, for reasons outside Mr Carter's control. I do not however accept the suggestion that he was not earning his remuneration fully prior to the accident.
147 I accept that Mr Carter encountered genuine difficulties in obtaining alternative employment. I find that he made extensive efforts to do so. He is currently employed by Cannington TAB for 50 hours per fortnight at $25 per hour.
Provisional Assessment of damages
148 I propose to calculate damages on the basis that Mr Carter:
1. would have worked until 65 without the need for a back fusion but for the accident;
2. would have been unable to continue at ACC from April 2012, in any event;
3. had difficulties in finding work thereafter, significantly due to his injuries, but also to the work available;
4. has a current level of employment that is the best he can obtain and perform; and
5. has the residual disabilities set out above.
General damages
149 I have made findings of the physical consequences of the accident for Mr Carter above. I accept the detailed description of Mr Carter's current position as outlined by Mr Kennedy in August of 2015. In summary, I am of the opinion that Mr Carter has made a reasonable recovery from his injuries, but is left with a significant deficit in terms of the lack of strength and pain in his right arm, plus an impaired spine at L5/S1, with significant restrictions. He has suffered the fact of and consequences of surgery. Nevertheless, Mr Carter has made impressive efforts to make the best of his situation.
150 Section 10A of the CLA provides:
(1) In determining damages for non-pecuniary loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceedings.
(2) For that purpose, the parties to the proceedings or their counsel may bring the court's attention to awards of damages for non-pecuniary loss in those earlier decisions.
(3) This section does not alter the rules for the determination of other damages.
151 In closing submissions, neither counsel for Mr Carter or the Defendants referred to cases involving claims for injuries of the kind(s) suffered by Mr Carter, or generally in relation to general damages.
152 I was referred to the provisions of s 9 of the CLA. They apply to this award of general damages and restrict the amount which I can award.
153 Section 9(2) provides that if the amount of non-pecuniary loss is assessed to be more than Amount A but not more than Amount C for the year in which the amount is assessed, damages for non-pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over Amount A.
154 There was no dispute that amount A is presently $20,000 and Amount C is $60,500.
155 In the circumstances, I consider an appropriate award for general damages for Mr Carter's injury would be $48,000.
156 The $48,000 is more than Amount A but less than Amount C. The excess of the amount which I have assessed over and above Amount A is $28,000 ($48,000 less $20,000).
157 Accordingly, Mr Carter's general damages as allowed under s 9(2) of the CLA will be $28,000.
Loss of earning capacity
158 A plaintiff is to be compensated for loss of earning capacity, generally, not loss of earnings: Medlin v State Insurance Commission (1995) 182 CLR 1.
159 Past lost earnings can often be readily quantified and represent a measure of that loss of capacity. Mr Carter claims his past loss of earnings specifically from the date of the accident until judgment. He also claims a sum for a 'diminished perimeter of employment' in the future. The sum specified was $400,000 in the particulars of damage contained in the papers for judge at trial. The submission was also made therein that Mr Carter would have engaged in full time employment until the age of 70.
160 I have determined above that a realistic retirement age for Mr Carter is 65 years. He is now 62.5 years old.
161 His pre-accident earnings were not in dispute. I was provided with a schedule of his income for the tax years 2006 - 2015. Also in evidence were the tax returns and assessments for those years. It was submitted, and I accept, that Mr Carter's average earnings immediately prior to the accident were $1,969.89 gross or $1,437 net per week.
162 Between the accident and trial there were periods both of total incapacity for work and part time employment. During the time that he was paid worker's compensation, he was either fully incapacitated or he was working some restricted hours. He said, in evidence, that he was directed to a rehabilitation provider but he was not given retraining. He went on to seek many alternative jobs and to endeavour to enlarge his range of skills. It is clear that his injuries have produced economic losses.
163 The liquidation of ACC after the accident, meant that Mr Carter would have been seeking alternative employment from April 2012, even without any injury or incapacity. He resigned as a director about four months before the accident because of his lymphoma and its treatment but continued as general manager until the accident. Afterwards he worked what he termed 'small hours' until March 2012, when it appears he found the work too stressful. The company went into liquidation shortly after that. I accept that the company needed a licenced credit provider and this was Mr Carter's role. I do not accept that his injury caused the closure of ACC. A licensed person could have been employed. I consider that there were other powerful financial forces bearing on that situation. Mr Carter has had a varied work history, which he detailed in evidence. He possesses a variety of skills. Notwithstanding that, even without his injuries, I consider it likely Mr Carter would have found it challenging at the age of 58 – 59 to find equivalent or otherwise equally remunerative employment. I believe he has taken every reasonable step available to mitigate his losses.
164 Counsel focused on the family nature of Mr Carter's employment by, in effect, his brother's entity. The reality is that an event occurred which impacted his ability to earn his pre-accident income, independently of the accident. Mr Carter was in the early stages of his recovery at the time ACC ceased trading. I have no doubt that his disabilities, subsequent surgery and limitations would impinge upon his prospects of finding work. The subsequent events bear this out. I consider that his employability has been diminished and continues to be so. For this he is to be compensated.
Calculation of past losses
165 Counsel for Mr Carter calculated losses on the basis of earnings immediately prior to the accident less estimates of his actual earnings post-accident. Given the information available this can be done more precisely. The work he did after the accident until he resigned from ACC was effectively a 'return to work' on workers' compensation. There are distinct periods:
1. From the time of the accident until March 2012, when he resigned from ACC:
26 October 2011 – 30 March 2012
22 weeks @ $1,437 $31,614
2. April 2012 – June 2012 61 weeks x $1,437 $87,657
3. July 2012 – June 2013
52 weeks x $1,437 $74,724
4. From end of October 2013 Mr Carter worked at a TAB in Riverton, on a part-time basis and intermittent basis. Mr Carter's tax returns were tendered in evidence. The document for year ending June 2014 was not in a form that showed the name of his employers. There are 3 employers listed. It can safely be assumed that the larger of the three payments came from 'workers' compensation' income. The total gross payments from other sources were $7,865 gross, or $6,236 net.
With the tax information it is neither possible nor necessary to establish his precise income in any particular period from November 2013 to the end of the tax year. He had intermittent work and increasing back problems. Loss of income over this period can be calculated using his net income from the tax return over that time.
The loss to the end of June 2014 is therefore:
52 weeks @ 1,437 = $74,724 - $6,236 = $68,488
5 The period from July 14 - June 2015 includes a period totally unfit due to back surgery in August and following. The tax returns show that in that whole period he was paid $2,491 gross or $1,955 net by the WA Turf Club and $26,915 gross or $21,825 net by the trustee for the Johnson Family trust. This is $457 per week averaged over the entire tax year.
Lost earnings for this period are therefore
52 weeks x [1437 - 457] = $50,960
6 From July 2015 – June 2016 he has continued working, part time, at TAB Cannington for 50 hours per fortnight at $25 per hour ($500 per week):
52 weeks x $1,437 - 500 = $937 x 52 = $48,724
The total past losses are the sum of these calculations = $362,167
166 These past losses and indeed any future losses have to be considered in the overall context. Mr Carter said that shortly after the closure of ACC he commenced looking for work. He was diligent. In the area of credit provision, management or debt collection, he only obtained one interview in a debt collection role, and he was told that some aspects were not suitable because of his arm injury.
167 He applied for many other jobs and did a property management course in 2012, but was not able to secure employment until 2013 with Riverton TAB.
168 There was no specific evidence from Mr Carter of any other job he could not do because of his injuries.
169 The medical evidence does however support his restrictions in lifting with his right hand and sitting or standing for extended periods of 30 minutes to 60 minutes respectively. McClosky suggested up to 30 hours per week. This would limited his range of occupations requiring him to avoid for example extended driving or standing.
170 The position is that Mr Carter, in my view, would have had difficulty finding other work even without the accident and that a discount of 25% should be applied to the calculated loss, reducing it to $271,625.
Future loses
171 I have already considered Mr Carter's likely retirement age. Given his current age the period of his continuous losses is shorter than submitted. A global or lump sum figure is thus appropriate, although over a shorter period a sum might well be calculated by projecting the current loss. Taking an overview, in round terms, I assess future losses at $150,000.
Superannuation
Past loss of earnings $271,625
Loss is 9.25% of lost earnings $25,125
Interest
From 26 October 2011 – 30 June 2016 at 3% say 5.3 years:
Earnings - $271,625 x 5.3 x 3% = $43,188
Superannuation - $25,153 x 5.3 x 3% = $ 3,999
Future medical expenses
172 A claim for $15,000 is made for a lump sum to include further costs of physiotherapy, reviews by treating specialists and analgesic medications. No submissions were made upon the proper basis to calculate such a sum. I consider that some allowance for occasional physiotherapy, painkillers and medical review appointments is reasonable. Considering the costs of such items and that they are likely to be intermittent but for his lifetime, I will accept the estimate of $15,000 as reasonable.
Special damages
173 Counsel for Mr Carter provided schedules in relation to these losses, and submissions were filed by both counsel in detail upon them. The reality was that, essentially, quantum of these losses was mostly agreed, subject to whether expenses resulting from the back condition as well as the arm injury were to be included.
174 The schedules remained difficult to reconcile. The last provided schedule filed 24 May 2016 in the form of a 'Scott Schedule' carried forward matters that had been earlier withdrawn (eg item 8 – abandoned in submissions filed by the plaintiff in March 2016).
175 The table below is taken from the last provided schedule, adjusting item 7 to $1,040.38 deleting item 8 and item 13 for which proof of earlier payment was attached. Otherwise, items 1 – 16 are shown as 'Medical' below. Item 17 is Pharmacy (2). Workers' compensation accounts (items 18 – 25) are at (3). Item 26 becomes Physiotherapy (4). Hospital costs (5) are taken from item 27 entitled 'lumbar spine surgery expenses'.
176 There remains one matter which is irreconcilable, which relates to BUPA expenses, item 28 on the last schedule. This is stated to be subject to dispute in relation to quantum and liability. In the plaintiff's submissions dated 2 March 2016 at [28] it is asserted that quantum is agreed but liability denied on the basis, presumably, that the expenses related to the spinal injury. The court has never been provided with the documents relating to this item. The quantum had been adjusted, downwards, from an earlier claimed sum apparently. There is no basis upon which the court can determine this issue. Accordingly, BUPA expenses are provisionally included at [6] and I will hear counsel as to whether they should finally be included in the provisional assessment of damage or not.
Type | Agreed Quantum | |
1 |
| $11,105.74 |
2 |
| $321.00 |
3 |
| $29,733.12 |
4 |
| $4,840.30 |
5 |
| $24,523.80 |
6 |
| $5,233.40 |
| $75,757.36* |
177 As I have determined that the back injury was caused or significantly contributed to by the accident, the past expenses should include all relating to treatment of both elbow and spinal injuries.
SUMMARY
General damages $28,000.00
Past loss of income $271,625.00
Future loss of earning capacity $150,000.00
Past superannuation $25,125.00
Interest on past loss of income $43,188.00
Interest on past loss of superannuation $3,999.00
Future medical expenses $15,000.00
Special damages * $75,757.36
Total $612,694.36
Orders
178 By reason of my findings on liability, I dismiss the action against all defendants. I will hear counsel as to costs after these reasons are delivered.