Carter v Traralgon Greyhound Racing Club Inc
[2011] VCC 1424
•6 December 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-01237
| LEIGH CARTER | Plaintiff |
| v | |
| TRARALGON GREYHOUND RACING CLUB INC | First Defendant |
| and | |
| LATROBE CITY COUNCIL | Second Defendant |
---
| JUDGE: | HIS HONOUR JUDGE CARMODY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 November 2011 |
| DATE OF JUDGMENT: | 6 December 2011 |
| CASE MAY BE CITED AS: | Carter v Traralgon Greyhound Racing Club Inc & Anor |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1424 |
REASONS FOR JUDGMENT
---
SUBJECT – ACCIDENT COMPENSATION – Damages
CATCHWORDS – Occupier’s liability – contributory negligence – breach of duty – pain and
suffering damages
LEGISLATION CITED – Wrongs Act 1958 (as amended), s.16B and PART X
CASES CITED – Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479;
JUDGMENT – Judgment in favour of the plaintiff in the sum of $82,560.00.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett | Arnold Thomas & Becker |
| For the Defendants | Mr M G Clements | Richard Mole & Associates |
| HIS HONOUR: |
Introduction
1 Mr Leigh Carter is a greyhound racing trainer and dog handler. On 13 July 2007, he attended in his capacity as greyhound trainer and dog handler at the Traralgon Greyhound Racing Club. The greyhound track at Traralgon is in the centre part of Glenview Park. Surrounding the greyhound track is, firstly, the trotting track (now disused) and outside of the trotting track is the turf racing track. The public area surrounds the turf racing track.
2 The plaintiff’s father, who is also a greyhound trainer, was racing ‘Why Not Me’ in the last race at Traralgon on 13 July 2007. Mr Leigh Carter, the plaintiff in this case, was the handler, and standing in the position of his father for ‘Why Not Me’.
3 The plaintiff was leading the dog around to the start of the 298-metre mark at Glenview Park. His dog was in box number 6 and consequently was sixth in the queue of dogs walking out to the starting point. The plaintiff entered into the starting point area behind the starting boxes and immediately, once inside the concrete apron area, stepped on what he described as “slime” and slipped over. As a result of his fall his right leg was bent at a “funny” angle. One of the assistants at the starting point took control of his dog and the plaintiff banged his leg against a fence nearby in order to straighten his leg.
4 The plaintiff was able to regain control of his dog and was able to start it in box number 6.
5 Shortly after the last race on the program at Glenview Park on the evening of 13 July 2007, the plaintiff attended at the venue manager’s office and reported the incident to John Wilkins. On a subsequent date at the Warrigal Greyhound Racing Centre in the following week, Mr Wilkins and the plaintiff completed the Incident Report form which became Exhibit F in these proceedings.
6 As a result of the injury to his knee, the plaintiff was operated on on 2 August 2007. He continues to have pain and difficulties with the use of his right knee.
7 The plaintiff brings this proceeding to recover damages from the first defendant, Traralgon Racing Club Inc, as the occupier of the premises. He brings his claim in negligence and breach of s.14B of the Wrongs Act 1958 (as amended) (“the Act”).
The Issues
8 The issues which require determination in this case are as follows:
(i) Did the first defendant owe a duty of care to the plaintiff? Mr Clements, on behalf of the defendants, appropriately conceded that the first defendant owed a duty of care to the plaintiff both in negligence and pursuant to the provisions of the Act.
(ii) Did the first defendant breach its duty of care to the plaintiff either at Common Law or pursuant to the provisions of the Act?
(iii) Was the cleaning system and ongoing maintenance of the starting stalls appropriate in the circumstances?
(iv) Was the lighting in the area of the starting stalls adequate?
(v) If there was negligence on the part of the first defendant which was a cause of the injury to the plaintiff, was the plaintiff contributorily negligent?
(vi) If the first defendant had breached its duty of care to the plaintiff causing damage injury to him, what was the appropriate level of damages for pain and suffering to be awarded to the plaintiff?
9 The parties agreed special damages in the sum of $3,200.
Applicable Principles of Law
(a) Common Law Negligence
10 The Common Law duty on an occupier is best stated in the authority of Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. In that case, the majority of the High Court of Australia (Mason, Wilson, Brennan, Deane and Dawson JJ) at paragraph 11 stated:
“… It is a mistake to think that the failure of an occupier of dangerous premises to take reasonable care does not encompass an act or omission on the part of the occupier which suffices to attract the general duty. What is reasonable, of course, will vary with the circumstances of the plaintiff's entry upon the premises. We think it is wholly consistent with the trend of recent decisions of this court touching the law of negligence, both in this area of an occupier's liability towards entrants on his land and in the areas which were the subject of consideration in San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (1986) 68 ALR 161 and Cook v Cook (1986) 61 ALJR 25; 68 ALR 353, to simplify the operation of the law to accord with the statement of Deane J in Hackshaw (CLR at 662–3; ALR at 452) ‘… it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk.’”
(b) PART X of the Wrongs Act (as amended) 11 This part of the Act was not pleaded or argued during the course of the proceedings. However, PART X of the Act has application to this particular claim. It is unnecessary to set out the relevant sections in full, but s.47, s.48, s.49, s.50, s.51 and s.52 are applicable in respect of the duty of care and causation. Sections 62 and 63 are applicable to the issue between the parties concerning contributory negligence as alleged by the defendant.
(c) Section 14B(3) and (4) of the Wrongs Act (as amended) 12 Section 14B(3) enlivens the liability of an occupier as follows:
“An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.”
13 In this case, the first defendant admitted that it was the occupier of Glenview Park at Traralgon.
14 The matters to be taken into account to determine whether or not the first defendant has breached its duty to the plaintiff may be constituted by a positive act or by an omission or failure to act. The circumstances that are of assistance in determining whether or not the defendant had breached its duty to the plaintiff are as follows:
(a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry on the premises; (c) the nature of the premises; (d) the knowledge which the occupier has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the persons entering the premises; (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. 15 A consideration of the principles involved in the Common Law, PART X of the Act and s.14B of the Act raise very similar circumstances and principles which have to be considered when determining whether or not there has been a breach of duty by the first defendant in this case.
How did the Accident Happen?
16 The plaintiff gave evidence that he was the handler for the dog named ‘Why Not Me’. ‘Why Not Me’ was dog number 6 racing in the last race at the Traralgon Greyhound Racing Club on 13 July 2007. There were seven dogs competing in this race. The race was to commence at the 298-metre mark.
17 The plaintiff gave evidence that he led his dog from the parade ground across the racetrack then the trotting track onto the actual greyhound racing track. He, along with the other competing dogs and their handlers, walked in a line following an instruction by a track steward. The competitors walk around the outside of the dog track up until the start point at the 298-metre mark.
18 The plaintiff stated that he was wearing black flat-soled dress shoes, which are part of the rules as required.[1]
[1] Transcript (“T”) 12, L15-17
19 Mr Wilkins, who was the Traralgon Greyhound Racing Club Manager at that time, gave evidence that there was a dress code required of all greyhound trainers and handlers. He described the dress code as follows:
“Footwear needs to be black shoes, yes, black pants, white shirt. They used to have a coat in those days; I assume they still do – I have been out of the greyhound industry now for two years – or a vest and black shoes were the requirements.”[2]
[2] T 70, L29 – T 71, L2
20 The plaintiff gave evidence that as he arrived at the 298-metre start point, he was the sixth dog handler of seven in the race. The system was that the dogs and handlers, together with the starting steward and the track steward entered into the area behind the starting boxes. This area was concreted and had a flat tin roof over head.
21 The plaintiff stated that he had proceeded to the outside of the starting area behind the boxes when he slipped in the mud and fell down. He described the accident as follows:
Q: “How did it slip?--- A:
As I have stepped onto the surface my foot has taken off towards the right and all my weight has gone through the centre of the knee joint which has then caused the knee to bend out at a 45- degree angle.”[3]
[3] T 18, L26-29
22 The plaintiff stated that before he stood up the starting steward took his dog from him. The plaintiff hit his leg on the fence nearby in order to straighten it. He stated that he was in excruciating pain. He was able to then place his dog in the starting boxes prior to the race.
23 The plaintiff gave evidence of the substance upon which he slipped as follows:
A: “I saw the slime on the ground after I’d slipped. I’d sort of looked to see what, hang on, what’s going on, because it was like your automatic reaction. It’s like you get hit, you looking to see what hit you, and I looked down to see the surface. Q: What was there?--- A: There was a slime. Q: Consisting of?--- A: It was a mud residue slimy, just a muddy residue, consisting of
sand and clay and water.”[4][4] T 20, L17-24
24 In cross-examination, the plaintiff was not certain of the substances that made up the slippery substance on the concrete. He had given evidence that he thought some of the dirt and clay had come from a pile of rubble which was from a construction site at the rear of the starting point. He stated that after the fall he observed that it was a “slimy, slippery substance” and it was approximately 4 foot by 2 foot in size.[5]
[5] T 33, L5-9
25 The plaintiff gave evidence that this was the first time that he had been to the 298-metre start point on the evening of 13 July 2007. The relevance of this is that he did not have any prior opportunity to inspect or see the area of the starting point behind the starting boxes.[6]
[6] T 30, L26
26 Mr Phillip Pryor gave evidence in this proceeding. Mr Pryor was the trainer and handler of a dog named ‘Straughnie’. Mr Pryor’s dog was starting from box number 3.[7] Mr Pryor was ahead of the dog being led by the plaintiff.
[7] T 52
27 Mr Pryor gave evidence that prior to the race, it had been raining but he was not sure whether or not it was raining at the time of the race. Mr Pryor went on to say that it certainly had been raining and was quite wet.[8] Mr Pryor stated that he entered into the starting area onto the concrete pad behind the starting boxes. He was then asked:
[8] T 46, L2-5
Q: “Did you notice anything about the concrete pad yourself? --- A: Yes, the concrete pad, underneath the boxes it is illuminated towards the rear where we were standing at that time because we had not been called up to the boxes, it was wet, there was sand over it and there was the - I remember one puddle in particular but they may have been more, I don't know. Q: What do you remember about the one puddle in particular? --- A: It was mixed with sand, when I say puddle it wasn't a deep puddle, it was just a shallow depression in the concrete and there was sand mixed in with it and I thought at the time I had better keep clear of that because it looked slippery. Well, it was slippery enough as it was and with the sand in the puddle, it was - a puddle doesn't do it justice, it was a very thin layer of water over some sand.”[9] [9] T 46, L26 – T 47, L10
28 Mr Pryor said no sooner had he thought about the puddle that he then saw the plaintiff slip and fall and that his leg had been twisted “at not a good angle”.[10]
[10] T 47, L14-15
29 Mr Pryor gave evidence that he was conscious of the puddle because he struggled with balance at the best of times. He then went on to say:
“I just thought I just thought this looks slippery, I had better be careful, and I took particular note of that puddle because it did look slippery with the sand in it.”[11]
[11] T 48, L11-14
30 Mr Pryor did notice that there was a pile of dark material near the rear of the starting area some short distance away. He was unable to say whether it was sand or not.
31 Mr John Wilkins was called to give evidence on behalf of the defendant. He was the manager of the Traralgon Greyhound Racing Club at the relevant time. Mr Wilkins stated the cleaning system for the track and in particular, the starting areas, was as follows:
Q: “At the time that you were there was there a system in place with
respect to the cleaning and maintenance of that area? ---A: Yes, the track manager's role was to not only prepare the racing circuit on race days but was to clean out the boxes, that's internally and to clean behind the boxes. Q: Yes? --- A: And to clean behind the boxes, that's the assembly area behind the boxes, that was his role to do that. That could be done the day before, the afternoon before but it would be always - the reason it was done the day before a twilight meeting was to allow it to dry out effectively especially inside the boxes but that area would have been swept again during the course of the day prior to the race meeting.”[12] [12] T 72, L25 – T 73, L7
32 Under cross-examination, Mr Wilkins stated that he thought the system of cleaning was a good system. He was asked, after the accident had been reported to him, as follows:
[13] T 78, L22-25
Q: “But you still didn't have a look behind the boxes or change your
system? ---A: I thought the system of how we cleaned and do things had served us well, I was very, very sorry it happened but we didn't change the system.”[13]
33 Mr Wilkins gave evidence that on the evening of the accident the plaintiff reported the accident to him in his office at the greyhound track. Mr Wilkins stated that the plaintiff wanted to leave the greyhound track as soon as possible because he was in a lot of pain. It was agreed between the two men that the Claim Form or Incident Report would be filled in at a later date. Mr Wilkins gave evidence that the plaintiff filled in the Incident Report at the next meeting of the Warrigal Greyhound Racing Centre on the following Tuesday. The Incident Report is Exhibit F in this proceeding. Mr Wilkins agreed that the plaintiff had told him that he had slipped on mud. Mr Wilkins was unable to recall whether there was a pile of dirt behind the start of the 298-metre concrete apron. He recalled that there was a construction site nearby but was unable to say whether there was a pile of dirt at the rear of the start point. He agreed that on a wet night, sand could create a hazard.[14]
[14] T 79, L9-10
34 When Mr Wilkins was pressed on the effect of the hazard from the pile of dirt or sand, the following evidence was given:
Q: “The hazards of the potential for that concrete pad to become on a
wet night affected by sand and water? ---A:
Well, there is a role of the starter at the boxes, okay, his role after each race if you don't mind me digressing slightly, is to get on the track and brush the track and then got to the starting boxes where they will assemble for the next race. He closes the lids, sees that everything's fine and whilst it's not in his job description if there was a big pile of sand or a big pile of mud there would be an expectation he would clean it, sweep it, it's not in his job description but that would be the expectation of that person, similarly advise the manager, you know, saw some dishes laying around when they walked into the canteen, pick them up and put them on a table.
Q: So there was a brush available for a starter to do that, was there?--- A:
There were brushes, there's rollers of the boxes to roll in front of the boxes and there is a broom and cleaning gear close to the proximity of the boxes.
Q: The evidence doesn't seem to be in dispute that Mr Carter slipped
on watery sand or mud? ---A: Sorry? Q: The evidence doesn't seem to be in dispute that Mr Carter slipped
on watery sand or mud, can you accept that? ---A: Well, Mr Carter has slipped on something. Q:
Yes, and if that's the case and if the starter or someone had the capacity with a brush there to have removed that then obviously the system has failed in some way?
A:
If Mr Carter fell and slipped on sand I would only assume that our person at the boxes didn't think it was sufficiently in bad enough state that required sleeping or cleaning.”[15]
[15] T 80, L17 – T 81, L17
35 Mr Wilkins made the appropriate concession during the course of his evidence as follows:
Q: “You wouldn't consider it acceptable to have a slippery
surface on that concrete pad, would you? ---A: No, not at all. Q: And if it happened then that would be that something had gone
wrong somewhere? ---A: Well, on that particular time, that particular night, he had an accident, very, very sorry he's had an accident but the system of cleaning and maintaining the boxes has stood this club – those clubs I have worked for in good stead over the years and it was very unfortunate that he happened to slip that night but I don't accept the fact that it's good enough to have mud, water or anything you suggest behind the boxes and that would be a no- no..”[16]
[16] T 83, L17-29
36 Mr Michael Fearnley gave evidence on behalf of the defendant. He was the maintenance manager at the Traralgon Greyhound Racing Club in July 2007. Mr Fearnley set out the system of maintenance and cleaning that he used at the time in July 2007. He stated as follows:
[17] T 84, L19-28
Q: “At the track at that particular time what was the system of
maintenance and cleaning that you employed? ---A: On the day before a race meeting we used to trial on the Thursday morning, then after trial go hose out all starting boxes, there's three lots 298, 500, 658, hose behind the boxes and sweep behind the boxes. That was the day before, I did that the day before so they dried for race day and then on race day I would do various chores on the actual track itself and give the lure a test and all that and sweep behind the boxes again.”[17]
37 Mr Fearnley’s evidence about the cleaning process on the day of the race, i.e. sweeping behind the boxes again, was different from the answer given by the defendant to Interrogatory 20 in this proceeding (Exhibit E). I accept Mr Fearnley’s evidence that his system was that on the day of the race, he would, after checking the lure, go back and sweep behind the boxes again.
38 Mr Fearnley stated that he did not know of the accident until some time in the following week. He was positive he never knew of the accident on the night of 13 July 2007.[18] Consequently, he never examined or inspected the scene of the accident after it had been reported to the track manager.
[18] T 86, L3
39 Mr Fearnley then gave evidence in relation to the actual layout of the concrete slab. He was asked:
Q: “Would you agree that the concrete slab is not particularly
even? ---A: Maybe when you get two or three metres back from it there's a
little bit of a rise in it I think just from memory.Q: Two or three metres back from the starting boxes
themselves? ---A: Yes. Q: There was there the potential for water to pool? --- A: I have seen water run across that at times. Q: Yes? --- A: Needs to be raining pretty heavily for that to happen.”[19] [19] T 87, L18-27
40 Mr Fearnley stated that he had no memory of any mud coming down from the rubble and dirt created by the construction site for the administration building which was behind the 298-metre start point.[20]
[20] T 88, L13-15
41 Mr Fearnley then appropriately, in my view, made the following concession in his evidence:
Q: “You would agree it would not be acceptable for the concrete pad
to become slippery with sand and water? ---A: No, whatever happened you clean it up. Q: If someone had seen that, for instance the starter, they should
have cleaned it up? ---A: Yes.”[21] [21] T 89, L3-7
42 I conclude that on the balance of probabilities there was an area of the concrete floor behind the starting boxes at the 298-metre start point that had a slippery substance made up of either water and sand or water, sand and mud. The substance would have been obvious to the starter prior to any of the contestants attending at the starting point for the last race at Traralgon Greyhounds. Whilst it was not in his job description, the starter was charged with, and expected to, clean up any mess or danger behind the starting boxes. Both Mr Wilkins and Mr Fearnley state that was the system. Clearly, the starter has failed to clean up the slippery substance on the concrete pad behind the starting boxes prior to the contestants arriving at the area. Mr Pryor had seen that substance before the plaintiff slipped in it. I find that the defendant has breached its duty of care to the plaintiff in this regard. The defendants system for cleaning had failed to remove the danger from the concrete floor, exposing the plaintiff to risk of slipping and falling.
Lighting
43 There was dispute in this case about the level and adequacy of lighting at the starting point. The plaintiff described the lighting as follows:
“It's dimly lit, it's not overly well it. It's just a - you get a reflective from the track, you get, as you saw the light fitting underneath the fluorescent tube. It wasn't overly great.”[22]
[22] T 41, L9-13
44 Mr Pryor stated that:
“At the rear section where we were it was wet, sandy and it was dull
lighting.[23]
[23] T 48, L5-6
45 Mr Pryor, when directly challenged about the state of the lighting, stated as follows:
Q: “So there was certainly lighting there, you agree with that? --- A: Yes, very dull lighting. Q: You don't think that the lighting had much bearing on the
incident in any event, do you? ---A: I think that it may have because the area where we were standing
was indeed dull.”[24][24] T 50, 16-21
46 Mr Pryor further added that –
“The lighting from the fluorescent light was very dull, and yes, I could see
the puddle.[25]
[25] T 51, L11-13
47 In relation to the light on the light tower, Mr Pryor said:
Well, it wasn't working on the night because it was quite dull. I'm not saying the light wasn't working, I'm saying as far as shining light onto the pad area where we were standing it obviously wasn't.”[26]
[26] T 54, 19-23
48 It was clear from the evidence of Mr Pryor that he considered the lighting was dull and not adequate. However, he conceded that he was able to see the puddle prior to the plaintiff’s accident. It is to be remembered that Mr Pryor was at the head of the queue, so to speak, when entering into the starting section behind the starting boxes.
49 Mr Wilkins’ evidence in relation to the lighting was that he thought it was adequate.[27]
[27] T 72, L16-17
50 Mr Wilkins, later in his evidence, stated as follows:
Q: “And then the dog owners come from the brightly lit area into this area which is shaded by the tin roof and has only that single fluorescent light inside? --- A: When I said before I thought the lighting was adequate under there, certainly it would be not as effective as out on the track, the lights are not as big, as bright and illuminate as much. Q: In fact it's absolutely common experience that when one comes from a bright area to a darker area it takes a moment to adjust, you would agree with that? --- A: It could well do, could well do. As I said earlier I thought the lighting under there was adequate but I guess if you come from a very bright area into a very dull area it takes a while to adjust.”[28] [28] T 83, L3-16
51 Mr Fearnley stated that he thought that the lighting was “satisfactory, good probably”.[29]
[29] T 86, L9-10
52 Exhibits A and B contain photographs of the fluorescent light underneath the tin roof of the starting area. It is a single bar fluorescent light. I also have the advantage of having seen the DVD which is Exhibit C in the proceeding. The dog handlers are visible in part from the lighting of the track. However, it is clear that the roof over the starting area makes it dark or darker within the starting area. The single bar fluorescent light is insufficient lighting for the dog handlers and stewards to properly see under the starting point roof.
53 I find that the lighting under the starting point at the 298-metre mark was not sufficient to properly illuminate the surface of the concrete pad immediately behind the start boxes. Mr Pryor was able to observe the slippery substance on the concrete despite the inadequacy of the lighting.
54 I find that the defendant has breached its duty of care to the plaintiff in failing to have adequate lighting in the area of the starting point at the 298-metre mark. If the lighting was brighter, then the plaintiff, or anyone in his position, would have a greater chance of observing any hazard that may have been left on the concrete floor of the starting point.
55 The state of the lighting is not the biggest factor in this case. The failure by the starter or any other appropriate official to check the state of the concrete apron behind the starting boxes at the 298-metre mark and clean up the slippery substance observed by Mr Pryor and fallen on by the plaintiff is the substantive breach of duty by the defendant. Mr Fearnley has observed water running across this concrete apron because of the lie of the land in the past. Mr Pryor gave evidence that it had been a very wet night and obviously some water and sand or dirt has accumulated on the concrete apron prior to this race. In a setting where there are going to be at least seven dog handlers and two officials plus seven dogs in this confined space, an accident of the kind that the plaintiff suffered was almost inevitable.
56 I find that the defendant has breached its duty of care to the plaintiff.
Contributory Negligence
57 The defendant has the onus of proving contributory negligence on behalf of the plaintiff. In its Defence, the defendant sets out the particulars of contributory negligence as follows:
(i) failing to watch where he was placing her (sic) his feet; (ii) failing to keep any or any proper lookout; (iii) failing to exercise reasonable care for his own safety; (iv) failing to exercise his own commonsense; (v) placing himself in a position of danger; and (vi) unnecessarily exposing himself to the risk of injury. 58 I accept that the plaintiff, when walking his dog to the start and indeed engaging in the starting process at the greyhounds, is under the control and direction of the stewards. The initial part of the process is controlled by a track steward. The starting box area is controlled by the starting steward. The plaintiff is required to follow the directions of the stewards and do what they instruct him to do. I find that he cannot be found liable for placing himself in a position of danger or unnecessarily exposing himself to the risk of injury in circumstances where he is directed as to where he can go.
59 In this case, Mr Pryor was able to observe and avoid the muddy or slippery substance on the concrete apron behind the starting boxes. It may be that Mr Pryor had the best opportunity to have a full observation of the concrete apron prior to walking upon it, as he was at the beginning of the group of dogs and handlers going into that area.
60 I find that the plaintiff has failed to watch where he was placing his feet on entry to the starting area behind the boxes. I find that he had failed to keep a proper lookout, to the extent that he made no observation of the slippery substance or any part of the concrete apron prior to slipping and falling. It is clear that when the plaintiff was behind the starting boxes, there were six other dog handlers, six other dogs and two officials in the same area. It would have been reasonably crowded in that confined space. Nevertheless, he still had a duty to watch out for his own safety and, to a minor degree, he has failed to do so.
61 I assess the plaintiff’s contributory negligence at 20 per cent.
Damages
62 The plaintiff and the defendant have agreed the special damages in the sum of $3,200.00.
Damages for Pain and Suffering
63 The plaintiff gave evidence that immediately after he had slipped and fallen, his knee was bent out at a 45-degree angle. He said that it was excruciatingly painful.[30]
[30] T 18, L26-33
64 After the plaintiff had banged his leg and straightened it he attended to the start of ‘Why Not Me’ in the race. Later he attended at the Traralgon Greyhound Racing Club office to report the incident. Mr Wilkins noted in his evidence that the plaintiff limped into the office and made his verbal complaint about what had occurred. The plaintiff was basically in too much discomfort and in a fair amount of pain so arrangements were made for the Incident Report to be completed at a later time at the Warrigal Club the following week.[31]
[31] T 73
65 I have viewed the DVD, which is Exhibit C in this proceeding, and observed the hobbling manner of movement by the plaintiff immediately after the incident and at the start of the race. It is clear that immediately after the incident Mr Carer was in considerable pain and difficulty.
66 The plaintiff stated that by the time he was about to go to the Frankston Hospital and after he had wrapped up his leg in ice and an elastic bandage, his leg was “throbbing”.[32] Clearly, the plaintiff was in considerable pain in the immediate time after the accident and remained in pain until he arrived at the Frankston Hospital.
[32] T 21
67 A medical report from Peninsula Health, the Frankston Hospital Division, dated 13 October 2010 was tendered as part of Exhibit D.[33] In the report it was noted as follows:
“On examination, he had a right swollen and reddened knee which was tender over the medial and lateral joint margins and suprapatellar bursa. There was no joint effusion. … A diagnosis of soft tissue injury to the right knee was made. He was treated with a Zimmer splint and crutches. He was given pain relief and anti-inflammatory tablets and was discharged to be reviewed by his local medical officer in three to five days.”[34]
[33] PCB 28-29
[34] PCB 28
68 The plaintiff attended at the Casey Medical Centre, where he was then referred to Mr Patrick Byrne. It was conceded by the plaintiff that he had attended at the Casey Medical Centre some fourteen times between July 2007 and the current time and had not made any complaint about his right knee to the doctors at that clinic.[35]
[35] T 34, L26-31
69 Mr Patrick Byrne, orthopaedic surgeon, prepared a report dated 18 October 2011. This report was part of Exhibit D.[36] Mr Byrne first consulted the plaintiff on 23 July 2007. On that date, he made the following observations:
“On examination, Mr Carter had an effusion in his right knee joint. He had an extremely irritable right patello-femoral joint. His patellar apprehension test was positive. There was some tenderness over his medial collateral ligament. I was unable to accurately assess for ligamentous instability in his right knee due to severe spasm in his right quadriceps and right hamstring muscle.”[37]
[36] PCB 24-27
[37] PCB 24
70 On the following day, after and MRI scan on his right knee, the plaintiff was again reviewed by Mr Byrne. Mr Byrne made the following observations on 24 July 2007:
“He was still experiencing a lot of pain in his right knee and said when he stands on his right leg it felt as if his knee was going to give way in a valgus instability, suggesting the medial collateral ligament was incompetent. The MRI scan did not show any specific medial collateral ligament tear. Any attempt at stressing his medial collateral ligament clinically caused excruciating pain and severe spasm in his knee.”[38]
[38] PCB 25
71 The plaintiff underwent surgery at the South Eastern Private Hospital on 2 August 2007. The operating surgeon was Mr Byrne. Mr Byrne reported the following after the operation:
“There was a marginal tear of the anterior half of the lateral meniscus. His medial meniscus was intact and there were no intraarticular loose bodies. There was some chondral damage on the articular surface of the patella.”[39]
[39] PCB 25
72 Mr Byrne diagnosed that the plaintiff had suffered a lateral dislocation of his right patella.
73 Mr Byrne last consulted with the plaintiff on 15 August 2007 where he advised that physiotherapy was needed to assist in mobilisation and range of movement in the right knee.
74 It is to be noted that between the date of the accident and a month approximately after the end of the surgery, the plaintiff was unable to perform his work as a bobcat driver. This was due to the pain and lack of mobility and strength in his right leg.
75 The plaintiff underwent physiotherapy treatment for approximately “a few months”.[40] In the immediate time after the accident he initially used crutches for approximately one month and then a walking stick. At the end of that time he purchased a knee brace so that he could ambulate without the assistance of a walking stick or crutches.
[40] T 23, L9-10
76 In June 2010, the plaintiff had an accident involving his left knee. This knee was surgically repaired and on his evidence, gives him no further difficulties.
77 The plaintiff states that the ongoing pain in his right knee, which he describes as arthritic pain, gives him trouble while sleeping.[41] He stated that the more he works as an earthmoving contractor, then the more pain he suffers. The explanation for that, he said, was that the controls of the bobcat were done predominantly by foot and that he had to use his right and left legs in order to work.[42]
[41] T 23, L27-30
[42] T 24, L7-13
78 The plaintiff gave evidence that he currently takes six to eight Panadol per day to assist with his pain symptoms. He said that he is also prescribed Prednisolone, which is an anti-inflammatory. He said that he took Prednisolone seven days on/seven days off.[43]
[43] T 24
79 The plaintiff gave evidence that he continues to work his bobcat business. He stated that he would be prepared to do as much work as he could get but it was dependent on the market. He also stated that he continued to play cricket. Although he described his role as one of a mentor to younger players, he said that he still batted and fielded in slips. Whilst he was challenged about the pace with which he would run between the wickets when batting, he gave evidence that he would take ones where others might run two.
80 The plaintiff’s evidence was that he had retired from the greyhound business shortly after this accident. He stated that he now has two young dogs that he is trying to get back into the business with.
81 The plaintiff was shown on DVD surveillance film, which is Exhibit 1 in this proceeding, walking those dogs. He had readily conceded that he walked the dogs. He did not wear a knee brace in that surveillance film. Whilst when questioned, the plaintiff said he thought he was limping in the video, on my observation, it appeared that he was walking reasonably normally. The difficulty with that, of course, is the Court does not have the benefit of having seen the plaintiff walk prior to any injury. It is fair to say that he does not have a pronounced limp when he does walk the dogs and it is part of his rehabilitation that he walks for exercise.
82 The plaintiff said that he has no interest in further surgery to the right knee.[44] It is to be noted at this point that Mr Schofield, orthopaedic surgeon, is of the opinion that surgery might be a necessity in the future. I will return to this later in the review of the medical evidence.
[44] T 27, L28-31
83 In conclusion, I find that the plaintiff presents reasonably as a stoical type of man. He has obviously suffered a severe injury and the consequential pain of it. The pain continues and is exacerbated by the use of his legs in the course of his employment. He continues with the work and has stated quite clearly he is going to continue with the work. I find that he does not exaggerate his symptoms or difficulties.
84 Mrs Kerreyne Carter, the plaintiff’s wife, was also called to give evidence in this case. Mrs Carter stated that she has only known the plaintiff since the time of his accident the subject of these proceedings. Her evidence confirmed that the plaintiff took Panadol for pain relief and that he was prescribed anti- inflammatory drugs for his right knee. In her evidence, she noted that the plaintiff was in pain, particularly after work. She also gave evidence that the plaintiff’s sleeping was interfered with. Mrs Carter stated as follows:
Q: “How does he seem to sleep?--- A: Not good. Q: In what way?--- A: He is restless. Q: Does he ever tell you why that is, or make any complaint?--- A: Yes, he often says it's his knee is aching. Q: Does he ever have to have his knee up?--- A: He has had his knee up, yes in bed with a pillow under the knee at
times.Q: What about when you're just around the house watching TV?--- A: Often he'll have his leg up on the couch, elevated.”[45] [45] T 43, L4-11
Expert Medical Evidence
85 I have previously dealt with the treating doctors at Frankston Hospital and the surgeon, Mr Patrick Byrne. I will not repeat that evidence here.
86 Mr Stanley F Schofield, orthopaedic surgeon, was called to give evidence on behalf of the plaintiff. Mr Schofield prepared four reports in respect of the plaintiff, dated 27 May 2009; 30 June 2009; 25 August 2010; and 31 October 2011. These reports were part of Exhibit D.[46]
[46] PCB 30-45d
87 Mr Schofield diagnosed the plaintiff’s condition as suffering from a dislocation of the right patella.[47] Mr Schofield also diagnosed that the plaintiff had suffered lateral collateral ligament damage to his right knee.[48]
[47] T 55, L21-22
[48] T 55, L23-24
88 In his report dated 31 October 2011, Mr Schofield proffered the following opinion:
“As a result of the injury on 13 July 2007, he has suffered a permanent disability. It is quite clear from his current examination and x-ray that there is collateral ligament instability mainly affecting the lateral ligament. …
Diagnosis of injury is an acute rotational stress on the left knee causing instability of the lateral ligament, probable injury to the medial compartment of the knee which requires an up-to-date MRI scan and patellofemoral chondromalacia. …
The likelihood of further deterioration is evident because of the instability which will cause premature osteoarthritis.”
89 Mr Schofield performed two sets of x-rays with the right knee joint under stress. The first time this was performed was 27 May 2009. Mr Schofield diagnosed a Grade I opening in the knee as a result of the injury. In the October 2011 x-ray, the measurements taken under stress by Mr Schofield diagnosed a Grade II opening. In short, Mr Schofield said that the ligamentous laxity had deteriorated in the period 2009 to 2011.[49]
[49] T 58, L2-17
90 Mr Schofield disagreed with the opinion of Mr Schultz, who stated that both knees had suffered from the same level of laxity and consequently there was a constitutional problem rather than a traumatic problem in the right knee. Mr Schofield said that if Mr Schultz had seen the result of the x-ray, he would not make such a diagnosis. Mr Schofield conceded that he had not examined the left knee.[50]
[50] T 64, L1-6
91 In re-examination, Mr Schofield was asked:
[51] T 65, L24-26
Q “But going back to the question that I was asking which was do you think it's more likely than not that he would develop premature arthritis? --- A: Yes, definitely.”[51]
92 Mr Edward Schultz, consultant surgeon, prepared a report in respect of the plaintiff dated 8 November 2010. This report was Exhibit 3 in the proceeding.[52] Mr Schultz, in his report, noted that there were no right knee joint symptoms. He noted however that in the right knee region there was discomfort indicated separate from the knee joint. Mr Schultz agreed with the diagnosis that there was a patellar dislocation as a result of the accident. Mr Schultz was of the opinion that the right knee was at risk of late patellofemoral arthritis. However, the risk is reduced because the evidence points to the form of healing of the patellar cartilage with presumed fibrocartilage. Mr Schultz conceded that the plaintiff does have symptoms in his right knee but finds that they seem to be readily tolerable symptoms.
[52] DCB 125
93 I prefer the evidence and opinion of Mr Schofield as a specialist orthopaedic surgeon, to those of the consultant surgeon, Mr Schultz. The basic difference in the two specialists is that Mr Schofield has performed two sets of radiology under stress in order to determine exactly the range of disability and laxity within the right knee of the plaintiff. He stated that the condition is deteriorating and that as a result of that the risk of arthritis in the right knee is increasing.
94 I note that in forming his view, Mr Schultz took a history that the plaintiff was not taking painkilling medication. Mr Schultz either proceeded on a wrong assumption or for some reason the plaintiff failed to tell him that he was taking painkilling medication. I accept that the plaintiff does in fact take painkilling medication.
Conclusion
95 I accept that the plaintiff is injured in the manner in which he described and to the extent that Mr Schofield has found and given evidence about. The plaintiff presents as a stoical man who, whilst suffering pain, is doing the best he can to get on with his life, both in the form of pursuing his employment as a bobcat operator and his sporting activities of cricket and greyhound racing. The plaintiff will and does face the prospect of premature arthritis in his right knee. Given that his employment is a physical activity involving a great deal of use of both his legs, including his injured one, the pain will be constant and ongoing. In order to ameliorate the pain, the plaintiff is required to take medication on a constant basis. His sleep is interrupted and this is corroborated by the evidence of his wife. The injury required surgery and hospitalisation.
96 In conclusion, taking all of the above matters into account, I assess the appropriate sum for pain and suffering damages in the sum of $100,000. To the general damages sum, the agreed special damages of $3,200.00 is to be added.
97 The total damages of $103,200.00 are to be reduced by the assessed contributory negligence of the plaintiff to the extent of 20 per cent.
98 There will be judgment in favour of the plaintiff for the sum of $82,560.00 (EIGHT TWO THOUSAND FIVE HUNDRED AND SIXTY DOLLARS).
99 I will hear the parties on the question of interest and costs.
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