Coatz v Westcourt Limited - [2002] WADC 84

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: COATZ -v- WESTCOURT LIMITED [2002] WADC 84

CORAM: HH JACKSON DCJ

HEARD: 1, 2 & 5 NOVEMBER 2001

DELIVERED : 3 MAY 2002

FILE NO/S: CIV 1205 of 2000

BETWEEN: KENNETH ARTHUR COATZ
Plaintiff
AND
WESTCOURT LIMITED
Defendant

Catchwords:

Occupiers' liability - Negligence - Liability and damages - Building site - Site cleanup - Knee injury

Legislation:

Occupiers' Liability Act 1985, s 5

Result:

Claim dismissed - Provisional assessment of damages

Representation:

Counsel:

Plaintiff: Mr B J Singleton QC with Mr D J Bayly
Defendant: Mr P A Monaco

Solicitors:

Plaintiff: Bradley & Bayly
Defendant: Godfrey Virtue & Co

Case(s) referred to in judgment(s):

Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) A Tort Rep 81‑043
Keogh v Dom‑Uie Pty Ltd, unreported; FCt SCt of WA; Library No 950649; 29 November 1995
Purkess v Crittenden (1965) 114 CLR 164
Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 60 ALJR 194
Thomas v O'Shea (1989) A Tort Rep 80‑251
Watts v Rake (1960) 108 CLR 158
Westralian Caterers Pty Ltd v Eastment Ltd (1992) 8 WAR 139

Case(s) also cited:

Andriolo v G & G Constructions Pty Ltd (1989) A Tort Rep 80-235
Bressington v Commissioner for Railways (NSW) (1947) 75 CLR 339
Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204
Burnie Port Authority v General Jones Pty Ltd (1994) A Tort Rep 81-264
Bus v Sydney City Council (1989) 167 CLR 78
Coles & Ors v Montague Grant Architects Pty Ltd & Anor, unreported; SCt of WA; Library No 950374; 12 June 1995
Hill-Douglas v Beverley [1998] QCA 435
Performing Right Society Ltd v Mitchell & Booker (Palais de Danse) Ltd [1924] 1 KB 762
Sarvanidis v Chicago Bridge & Iron Constructors Pty Ltd (1989) A Tort Rep 80‑292
Scott v Boral Timber Tasmania Pty Ltd [2000] TASSC 120; 30 August 2000
Torette House Pty Ltd v Berkman (1939) 39 SR (NSW) 156
Tressider v Austral Stevedoring & Lighterage Co Pty Ltd [1968] 1 NSWR 566
Turner v State of South Australia (1982) 29 SASR 552
Vozza v Tooth & Co Ltd (1964) 112 CLR 316
Wyong Shire Council v Shirt (1980) 146 CLR 40
Zuijis v Wirth Bros Pty Ltd (1955) 93 CLR 561

HH JACKSON DCJ: This action is brought by the plaintiff who was born on 19 August 1945 and is and was formerly a bobcat operator. The defendant company occupied and controlled a building site at Lot 322 Cessna Drive, Jandakot where it was engaged in building a residential residence, and was at all material times an occupier of the site within the meaning of s 5 of the Occupiers' Liability Act 1985.
The defendant engaged the plaintiff to attend at the building site to complete the removal of building debris and the cleaning of the site.
It is alleged that on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WADC 84
Decision Date: 3 MAY 2002

CaseChat Overview and Summary

The case of Coatz v Westcourt Limited involves the plaintiff, Coatz, who claims damages for injuries sustained on a building site owned by Westcourt Limited. The dispute centres on whether Westcourt Limited was negligent in maintaining the site and whether the plaintiff's injuries were exacerbated by this negligence. The matter was heard in the Supreme Court of Queensland. The primary legal issues revolved around determining the extent of the plaintiff's pre-existing knee condition, assessing the impact of the incident on the site, and quantifying the damages attributable to Westcourt Limited's negligence, if any.

The court examined the medical evidence presented, particularly focusing on the plaintiff's history of knee issues, including a menisectomy some thirty years prior to the incident. The orthopaedic surgeon's report concluded that the plaintiff had significant degenerative arthritis, which was an inevitable consequence of the prior surgery. The court considered whether the injuries suffered during the incident on the site had aggravated the pre-existing condition or caused additional damage. The surgeon's testimony indicated that while the plaintiff did suffer a soft tissue injury, there was no significant new pathology attributable to the incident, and the primary cause of the plaintiff's current symptoms was the long-standing degenerative arthritis.

The court determined that the plaintiff's pre-existing degenerative arthritis was the predominant cause of his disability, and any contribution from the site incident was minimal. The plaintiff's employment history, which involved physically demanding work, likely accelerated the degenerative process. The court held that the plaintiff had made a complete recovery from the site incident, but his work capacity was limited by the degenerative arthritis. The court concluded that the plaintiff's current work as a self-employed bobcat and truck driver was consistent with his medical condition and that he could not perform full-time work as a plant operator or bobcat driver due to his knee condition. The court found that Westcourt Limited was not liable for the plaintiff's injuries or the resulting damages.

In summary, the court awarded the plaintiff nominal damages for the soft tissue injury but found that Westcourt Limited was not liable for the degenerative arthritis or any significant exacerbation of the plaintiff's condition. The plaintiff's ongoing medical needs and the impact on his work capacity were attributed to the pre-existing degenerative arthritis, not the site incident.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr S W Brash, orthopaedic surgeon, saw the plaintiff on 9 October 2001. His report is exhibit 11:"ConclusionThis patient suffered a torn meniscus and had a lateral menisectomy some 30 odd years ago. We know that the inevitable result of a menisectomy, especially an open menisectomy in a young man is degenerative arthritis. Thus, it was completely predictable that this man would have and does have significant moderate degenerative arthritis in the right knee.I say this patient has significant degenerative arthritis because of the following:•genu valgus deformity•significant wasting of the right quadriceps muscle•fixed flexion deformity•lack of full flexion of the knee.Thus, prior to 23 November 1999 this patient did have inevitable and significant degenerative arthritis in the right knee. According to him it was asymptomatic. It was inevitable that sooner or later, even if this patient had not suffered the incident on 23 November 1999 that this degenerative arthritis would have become symptomatic.There is no evidence that I can now see that this patient has any significant pathology that one can attribute to the incident on 23 November 1999. There is no doubt this patient did suffer a soft tissue injury to the right knee. According to the arthroscopy this may have involved some damage to the anterior cruciate ligament because there was some bruising here. However, this ligament would have healed and it is most important to note that there is no sign of any ligament instability at the present time. Thus this patient did not suffer any significant to the anterior cruciate ligament. Likewise he suffered no significant injury to the meniscus.It is therefore my conclusion that this patient's symptoms are now entirely due to the pre‑existing and progressive degenerative arthritis in the right knee which was an inevitable result of the menisectomy that he had some 30 odd years ago....I believe that this patient did suffer a soft tissue injury to this right knee on 23 November 1999. This injury of course was against the background of long standing, pre‑existing and progressive degenerative changes in the right knee....I believe that this patient's are due to the long, pre‑existing and progressive degenerative changes in the right knee.There is no obvious discrepancy between the patient's subjective symptoms and the objective clinical findings.The arthrogram findings are entirely predictable with a previous menisectomy some 30 years ago.The major cause for his disability is the menisectomy some 30 odd years ago. However, this patient has worked for almost his entire working life in a job involving jumping up and down on bobcats, twisting, bending, crouching and lifting. Thus his employment probably contributed to an acceleration in the rate of deterioration of the long standing, pre‑existing degenerative changes.I believe this patient has made a complete recovery from the incident he suffered on 23 November 1999.Clearly Mr Coatz has a current work capacity and he is working on a daily basis, 4‑5 hours a day as a self employed bobcat and truck driver. Quite clearly he could work full‑time if he was not placing a strain upon the right knee with its very significant degenerative arthritis.Because of the significant degenerative arthritis in the right knee it is doubtful whether this patient can work as a plant operator or bobcat driver in a full‑time capacity.The basis on which I formed this opinion is because of the quite obvious moderate degenerative changes in the right knee....At this point in time the patient requires medications. I do not believe at this point in time he requires surgical intervention. It could well be and probably will be that he will come to surgery for this right knee in later life.The patient does have a permanent loss of function of this knee, and I believe that this is due to the pre‑existing progressive degenerative arthritis in this right knee."

Ratio Decidendi

Legal Principle Established

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