Cutts v O'Neil & Anor No. DCCIV-97-1080 Judgment No. D3813

[1998] SADC 4003

CUTTS V O’NEIL & DANN

CIVIL
JUDGE RUSSELL

The plaintiff is a 55 year old pensioner, who was born on 3 October 1942.  She lives in a single storey brick veneer house which stands on a 900 square metre block in Cairns, Queensland.  She has lived there since 1962.  She has four children; the eldest son lives in Ipswich; the eldest daughter lives in Cairns; her second son lives in Melbourne; and the youngest daughter lives on the Sunshine Coast.

The plaintiff separated from her husband in 1988.

In 1994, when she was 51 years of age, the plaintiff made arrangements to visit her second son, Darren, in Adelaide, just before he moved to Melbourne on or about 31 March 1994.

The plaintiff planned to stay with her friends, Mr and Mrs Snell, for a few days after Darren left for Melbourne and then to fly to Brisbane on 6 April 1994 to stay with her son in Ipswich, it being her intention to attend at her youngest daughter’s graduation before returning home to Cairns on or about 16 April 1994.

During her stay with Darren the plaintiff did a lot of walking.  On the day on which Darren left for Melbourne he dropped the plaintiff off at Mr and Mrs Snell’s home.  The plaintiff told Mrs Snell that she had a sore right knee.  She thought it had been caused by all the walking that she had done.

Apparently Mrs Snell had experienced a similar problem with her knees and she gave two voltaren tablets which she had to the plaintiff.

I note in passing that voltaren is an anti-inflammatory drug.

Mrs Snell also suggested to the plaintiff that she ought to see a doctor because they would be doing a lot of walking whilst the plaintiff was staying at her home.

Mrs Snell told the plaintiff that the general medical practitioner whom she consulted, Dr Prabhash Goel, lived just down the road from her home and so the plaintiff went to see him.

Although Dr Goel had no independent memory of the consultation that the plaintiff had with him, he was able to comment on the significance, if any, of his case notes on the consultation which read as follows -

‘Right knee problem.  Arthritis.  Hurting and painful.  Grinding.  Only here for four days.  Advised needs X-ray and ? arthroscopy - says will do it in Cairns - sample voltaren.’

Dr Goel thought that the word ‘arthritis’ indicated an assessment derived by him from the history that he took.  He was unable to say whether the plaintiff told him that she had arthritis and, having regard to the plaintiff’s evidence, I doubt whether she told him that she did suffer from arthritis in the knee.

The word ‘grinding’ was part of the history taken by Dr Goel.

Having regard to the evidence of Dr Goel, I infer that his entry in the notes of ‘advised needs X-ray and ? arthroscopy’ probably indicates the need for further investigatory tests to enable a proper diagnosis of the cause of the symptomatology to be made.  X-rays would be the first step and if that, together with the other results of the first examination, indicated the need for the use of a further diagnostic tool, then an arthroscopic examination could be considered for the purpose of inspecting the knee joint internally, with a view to establishing whether any, and if so what, damage had been sustained and whether any and, if so what, surgical procedure was required for the removal or repair of any part of the knee joint.

Since the plaintiff was returning to Cairns shortly after that and had not consulted Dr Goel for the purpose of prescribing any treatment or further diagnostic tests, he simply gave her a sample packet of voltaren with a view to alleviating the pain until she was able to undergo treatment in Cairns.

Seemingly, the voltaren had the desired effect and the plaintiff was able to go in the days succeeding with Mr and Mrs Snell to such places as the Cleland Reserve, the Art and Craft Show at Morphettville and to go shopping, in particular, for a sewing machine.

Mr and Mrs Snell had been invited by the defendants to join them at a barbecue party to celebrate their daughter’s 24th birthday on 5 April 1994.  That was the day before the plaintiff was due to fly to Brisbane.

Mrs Snell telephoned Mrs Dann to ask if she could bring the plaintiff with her to the party and Mrs Dann said ‘yes’.

And so the plaintiff went with the Snells to the defendants’ home at 10 Indee Crescent, Craigmore, to attend at the party.  They arrived at about 7 pm.  It was dark.  Mrs Snell led the way from the car to the front door.  The plaintiff followed her and Mr Snell followed up a few moments later after he had secured his car.

The defendants’ home has an external light at or near the front door.  It is operated automatically at night by a sensor.  It was in working order on that evening.

A brief description of the interior of the defendants’ home, so far as is relevant to the facts in this action, is needed before going further.

I have had the advantage of taking a view of the house and my description as follows, aided by photographs taken on 22 December 1994, together with oral evidence of certain changes and alterations that have been made to the house since 5 April 1994 relates to the configuration and general layout of the inside of the house as at 5 April 1994.

The front door opened into a passageway, the first metre and a half of which was tiled with brown and white ceramic tiles.  From then on the floor in the passageway was carpeted with the same carpet as existed in a sunken lounge.

On the right hand side there is a bedroom, the door to which opened into the passageway at a point at which the carpeted part of the passage way commenced.

As at 5 April 1994 there was a single electric light in that bedroom which was suspended from the centre of its’ ceiling.  The light had what was described as a chinese lamp shade.

When the bedroom door is open and the light switched on it provided some illumination for the first part of the passageway.

I was not provided with any measurements, but I estimate that on the left hand side of the passageway about three to three and a half metres from the front door there is a balustrade which is about two to two and a half metres long.  That part of the passageway overlooks the sunken lounge on the left.  At the end of the balustrade there are two steps down to the sunken lounge, the floor of which is 310 mm below the surface of the passageway.  The rise from the lounge floor to the first step is 130 mm whilst the rise from that step to the passageway is 180 mm.  The going of that step is 240 mm.

In order that one may descend from the passageway to the lounge one has to turn to the left at the end of the balustrade and on the left side of the step the balustrade is continued downwards at right angles to the balustrade along the passageway, thus providing for one to steady oneself as one descends or rises, as the case may be, from or to the passageway.

Beyond the stairway there is an archway across the passageway which leads to other bedrooms, bathroom and the like.

As may be seen in photographs 1-5 inclusive of Exhibit D1, the balustrade is made of solid timber and upon my observation it is firm and of sound construction.  The right edge on the steps has no balustrade, but the wall of the continuation of the passageway extends from the edge of the floor of the passageway to about 120 mm across the edge of the step that I have described.

As one looks over the balustrade and directly across the sunken lounge there are sliding glass doors on the opposite wall which open out onto a patio beyond which is a garden.

On the left hand side of the lounge there are two steps up to the dining room area beyond which is the kitchen, both of which are at the same level as the passageway.

There is also a sliding door which leads from the dining area to an upper portion of the patio are, there being two steps down from that area to the patio area adjacent to the lounge.

Something needs to be said about the lighting inside the house.  It is and was at the relevant time a dimly lit interior in the lounge and in the passageway.  There is only one light in the passageway, namely a 75 watt yellow globe set in the ceiling adjacent to the steps which lead into the lounge.  That can be seen in the centre top of photograph number 1 of Exhibit D1.

In the lounge one light with a green cone shaped shade above it was suspended from the ceiling in the rear right hand corner adjacent to the steps from the passageway as depicted on the left side of photograph number 1 and the left side of photograph number 5.

The only other light in the lounge was a standard lamp with a shade as depicted to the left of centre of photograph number 6 of Exhibit D1.  That was adjacent to the wall on the left hand side of the door to the patio.

Both the standard lamp and the ceiling light had 100 watt clear globes in them.

The lounge also derived some light from the dining room area and from a fluorescent light immediately outside and across the patio door.  There was also a flood light outside, which was on the opposite right hand side of the patio and directed towards the garden.

And so I return to the arrival of the plaintiff and the Snells at the defendants’ home on 5 April 1994.

As I said earlier in these reasons, Mrs Snell led the way.  The plaintiff walked immediately behind her.  The plaintiff was carrying a container with some food in it and a bottle of wine.  She had a shoulder bag over her shoulder.

Mrs Dann heard them arrive and called out ‘come in’.  As they walked down the passageway Mrs Snell stopped at the bedroom door on the right.  That door was open and the light in the centre of the room fell from it into the passageway.  Mrs Dann’s daughter, Denise, was in the bedroom and Mrs Snell stopped to talk to her.

At the close of that brief conversation Mrs Snell walked on towards the end of the balustrade, turned left and descended into the lounge.

The plaintiff followed her.

The plaintiff said that she could see Mrs Dann who was in the dining room area and who greeted Mrs Snell.  When the plaintiff first saw Mrs Dann she, the plaintiff, was standing almost at the end of the balustrade.  She saw Mrs Snell turn to her left and step into the lounge although, the plaintiff says that she did not know that she had descended into a sunken lounge.

Dimly lit as the lounge and passageway may have been, I find it difficult to accept that the plaintiff could possibly fail to have observed -

(a)that the lounge was at a lower level than the passageway;

(b)that there were two steps down from the passageway into the lounge when one turned left to enter the lounge;

(c)that Mrs Snell descended into the lounge when she turned left in front of the plaintiff;

and

(d)that the continuation of the balustrade at right angles to the balustrade adjacent to the passageway sloped downwards adjacent to the steps.

However that may be, I accept that for some reason the plaintiff lost her balance and fell onto her right knee in the lounge.

True it is that the depth of the going on the step is only 240 mm and when I stepped down onto that step on the view, I noted that the end of the sole of my shoe projected slightly beyond the edge of the step.

Be that as it may, the plaintiff’s complaint is that she did not know that there were any steps into the lounge, nor did she see any steps.

Indeed, her evidence was that other guests were present; they were a boisterous lot of people; and they were making a loud noise.  I find that those people were in the patio area outside the lounge and that, as likely as not, the plaintiff’s attention was distracted from looking to see where she was going.

The plaintiff says that when she fell she felt an excruciating pain in her right knee.

Seemingly, during the evening, Mr O’Neill massaged her knee for her.

When the plaintiff returned that night to the Snell’s home, her knee was still very painful.  She had to catch the 6.30 am aeroplane to Brisbane the next day at Adelaide Airport.

The plaintiff says that the condition of her right knee was worse then.  She was having a lot of problems with walking and experienced difficulty in climbing up the steps into the aeroplane.

The plaintiff stayed in Brisbane for 10-14 days.  She did not seek any medical treatment there.  Seemingly, she did not even consult a medical practitioner in order to obtain a prescription for an appropriate analgesic to relieve what she had described an excruciating pain.

Her explanation for that is that she did not want to start any treatment before she got back to her home in Cairns.

Whilst in Brisbane she stayed at her son’s home at Ipswich, which is a house built on stilts.  And so she had to restrict going up and down as much as she could.

Whilst I can accept that notwithstanding the pain that she might have been suffering immediately following the fall in the lounge, she nevertheless thought that she ought to take the flight on the aeroplane to Brisbane on the following morning, I entertain strong doubts about the extent of the pain to which she deposed.  If the pain that she was suffering from on 6 April 1994 onwards was worse then it had been the night before, why should she want to leave obtaining any medical assistance for a further 10-14 days whilst she was staying with her son at Ipswich on the grounds that she would prefer to wait until she got home?

I cannot help but think that the plaintiff has exaggerated the extent of the pain from which she suffered during that period of time.

When the plaintiff returned to Cairns she did not take any immediate steps to consult a medical practitioner either.  Instead she went to get treatment from a chiropractor, Mr May, and underwent four or five treatments from him before consulting a medical practitioner for the purpose of getting a referral to an orthopaedic surgeon, Mr Graham.

There was then a waiting list of about three weeks before Dr Graham could see her on 27 May 1994.

Mr Graham performed an arthroscopic examination on the plaintiff’s right knee on 31 May 1994.  That examination revealed a torn right lateral meniscus involving a significant section of the posterior horn.  The plaintiff also had an area on the medial femoral condyle that showed some early degeneration, but there was a new chondral fracture approximately 2 cm in diameter, in the weight bearing region of this condyle.

Mr Graham resected the torn lateral meniscus and debrided the ragged chondral fracture of the condyle.

Mr Graham also observed that the plaintiff’s anterior cruciate ligament was intact and the lateral and patella joint surfaces were in good condition.

However that may be the plaintiff had continuing problems with pain and swelling in her right knee and was able to flex to 30° only.  She had an intensive course of physiotherapy and her range of movement improved to near normal but the pain persisted.

Mr Graham decided to perform a second arthroscopy which was to be performed on 2 November 1994.

However, on or about 24 October 1994 the plaintiff fell over in her laundry at her home.  Apparently the water from the washing machine had overflowed and the floor was wet and slippery.

The plaintiff was taken by ambulance to the emergency section of the hospital but after examination it was decided to postpone any further treatment until the already booked arthroscopy was to be performed on 2 November.

That arthroscopy revealed an area of degeneration of the cartilage lining, the lateral femoral condyle and also the lateral tibial plateau.  The medial femoral condyle was also unchanged but there was a small radial tear of the medial meniscus which was excised.

The plaintiff then commenced once again on a course of physiotherapy and apparently felt that she had better extension and less pain.  The plaintiff also entered upon a program of weight loss, aqua aerobics and walking was also commenced and intermittent use of analgesics has persisted since.

It also appears from Mr Graham’s first report that the plaintiff suffers from a valgus deformity in her right leg:  ie her right leg tilts out to the side from the knee.  That deformity is compounded, in the plaintiff’s case, by the fact that she also has a valgus foot:  ie instead of her foot sitting flat on the ground, she tends to roll over onto the inner border of her foot.

In addition to the two written reports from Mr Graham, which were tendered by consent, I heard oral evidence from Mr John Lipert, an orthopaedic surgeon, who first examined the plaintiff on 16 May 1997 and made a further examination on 22 April 1998 before giving his evidence in court.

Mr Lipert made it clear in his evidence in chief that the valgus deformity existed quite independently of either of the two falls.  Moreover, in his later evidence in cross examination and re-examination he seemed to have changed his original opinion and finished up by saying that the two falls increased the angle of the deformity.

Mr Lipert gave detailed and useful evidence to explain the findings made by Mr Graham on both of his arthroscopic examinations.

It was Mr Lipert’s evidence that degenerative changes in the knee joints start to develop in persons aged of 40 years and over.  However, those changes can remain asymptomatic for several years.

Mr Lipert said that he did not place any significance on the pain that the plaintiff experienced in her knee on 31 March 1994.

However, he took the view that the condition in the plaintiff’s knee is worsening because, whilst the plaintiff used to experience a disturbed sleep pattern as a result of the tinnitus from which she suffers, the frequency of the disturbances in her sleep pattern has increased and he put that increase down to an increase in pain in the knee when she changes position.  Moreover, he had observed at 8.45 am on the day that he gave evidence that the plaintiff’s knee was swollen.

That, in his opinion, indicated that there was fluid in the knee.  He explained that fluid in a joint means that a pathological process is going on in the knee joint and that it is nature’s way of trying to minimise the effect of it.

He went on to say that the fact that there is fluid in the knee at that hour of the morning is indicative of the pathological process being at a serious level.

It was Mr Lipert’s opinion that had the plaintiff not fallen and injured her right knee of 5 April 1994, the pathological condition which was developing in her knee might possibly have given rise to a need for a total knee replacement in 12-15 years time.  However, the injury that she suffered on 5 April 1994 is such that it is highly probable that she will need a total knee replacement in about 2-3 years time.

However that may be, the necessity for such an operation will be different according to the circumstances which bring about the need.  Where it is a ‘life or limb saving problem’ Mr Lipert said he would insist on the patient having a knee replacement.

Where, however, it is a ‘comfort problem’, whilst it may give the desired relief from pain, the patient has seriously to take into consideration the complications that may arise as a result of such an operation, before making up his or her mind to undergo the operation.

Mr Lipert’s evidence on this topic was as follows -

’Q.... What might be the complications if she chooses to have it done sooner, rather than later.

A...... The complication is at any time, whether it is sooner or later, and this could ultimately mean in an extreme situation, removal of the prosthesis.  It can heal, but they can have a stiff knee with some restricted movement.  There are risks of deep venous thrombosis and pulmonary aneurism following the operation.  One of the risks of a total knee joint replacement in a younger age group - and she is in the younger age group for a total knee joint replacement - is that once a person’s pain is removed they then act their age and the junction between the prosthesis and the bone cannot put up with those stresses, and it loosens and it would have to be removed and replaced.  The most serious possibility with this is that, first of all, if the infection occurred and became uncontrollable, or the prosthesis had to be removed and it could not be satisfactorily replaced, the end result of that is an above knee amputation.  It is not something to be entered into lightly, and when it is a comfort problem I think you can see that one would not be pushing for the patient to have it done.

Q..... If the joint were to loosen as you say, does that in itself cause any symptoms.

A...... That causes pain, yes; pain with each step.

Q..... As to whether you could refix the joint, what does that depend on.

A...... It depends on the amount of bone stop that is left, that is, the amount of bone, because it has to be attached to that.  This also has to be fitted to a bigger sized artificial joint, so that if it does come loose it is better that it is dealt with early, rather than late, because of the looseness resulting in continual wear of the bone and making it technically more difficult or possibly technically impossible.

Q..... If that were to be required would the cost be about the same.

A...... No, revision is a bit more expensive.  I think that that would probably add another couple of thousand dollars.  It might even add more, because it might require longer in hospital and also, more physiotherapy, so I would probably add another three or four thousand onto that if a revision were necessary.

Q..... If she were to have the knee replacement what would you tell her in the way of restrictions upon her activity.  What shouldn’t she do.

A...... She used to bush walk prior to this injury, she was also a very keen gardener and she would have to be - I would have to talk to her at length about the risks involved in this and how she would have to walk, rather than run and - do you want me to go into all the details of this?

Q..... To take an example, gardening.  If she were fit she would be kneeling down and twisting and digging and reaching and climbing ladders.

A...... Not to climb ladders.  Ladders should be confiscated from all homes of people over 50 or 55.  A twisting movement when she is kneeling down is all right, but if she digs her own garden, which I gather that she used to do, this would not be wise, because the thrusting force of your foot on the spade just as a cumulative factor can just slowly reduce the life of the prosthesis.  She would need to keep off ladders, and if there are different levels in her garden, she would need to take steps to make sure that the access to these is quite safe.

Q..... What about just repeated kneeling and straightening.

A...... That’s a normal movement, and these joints have been tested to many millions of flexions to withstand that.  That’s all right.  The thing where she would be at risk is that if, for example, she could only bend her knee, say, to 110 degrees and then when she was kneeling down she sat back on her heels, it would mean that this stress is being taken up her on the prosthesis.  That would certainly be something to be avoided.  To force its bending like that would be a factor in loosening.’

Having heard Mr Lipert’s evidence, the plaintiff was re-examined on the question as to whether she had made any decision about having a total knee replacement.  Her evidence was as follows -

‘Q.Having spoken to Mr Lipert this morning, are you any closer to making a decision about this knee re-construction, knee replacement.

A.I don’t know, I think I feel devastated, to be honest, to have an operation that I don’t know is going to work, an arthroscopy, I have had two of them, I really don’t want to have more trials.  I really do want to get rid of the pain, but what consideration I have got to give now with the knee replacement as to what the repercussions can be at my age.

Q.You’re still undecided.

A.I’m going to speak to Dr Graham when I go back.  I’d like to have it because I’d like to be pain free.

Q.Your reference to an arthroscopy, I didn’t quite get your meaning.  You’re not too inclined to have an arthroscopy.

A.I have had two, they haven’t worked.  I have considered if I’m going to have an operation, may as well have the knee replacement which I’m going to eventually have to have anyhow.’

Bearing in mind that in the plaintiff’s case the need for such an operation is for the purpose of dealing with a comfort problem only and the plaintiff’s answers to which I have just referred, I take the view that there is not much likelihood of the plaintiff consenting to such a surgical procedure.

I should add that in reaching that conclusion I have taken into account not only the complications referred to by Mr Lipert, but also the general risks that one faces in undergoing any major surgical procedure under anaesthetic, which would no doubt be explained before any decision was made by the plaintiff to undergo such an operation.

Mr Lipert said, and I accept, that the all up cost of a total knee joint replacement is approximately $14,000.  Assuming that the defendants are liable and assuming that a total knee joint replacement operation is to be performed in two and a half years time, by applying Table 1 in the Appendix to the Third Edition of Assessment of Damages by Professor Luntz at 3% compound interest (as was agreed by counsel) the present value of a single payment of $14,000 in two and a half years time would be approximately $13,000.

However, I consider that that figure, which does not make allowance for mortality or other contingencies such as, for example, the plaintiff’s reluctance to say whether she would be likely to decide to undergo the operation, should be discounted by a substantial margin.

Indeed, I think it much more realistic to provide for further arthroscopic wash outs to be performed at a very much lesser cost and risk.

After making an allowance for that I would award $6,500 for future medical and like expenses.

The quantum of a number of items of special damage were agreed.  They amounted to $2,517.35.  The only item that was not agreed was $878.50 for arch supports and special shoes.

I would not allow that item.  The fact of the matter is that the need for those items arises partly from the fact that the plaintiff is flat footed and that, in time, compounds the problem that she has with the valgus deformity in her right leg, neither of which result from the fall that she had on 5 April 1994.

The plaintiff has suffered no pecuniary loss as a result of the injury to her knee.  The fact is that at all material times she was a pensioner as a result of the tinnitus from which she suffers.  That was caused to her whilst in the employment at Telecom as a telephonist.

Although it may be that the plaintiff used to be paid for her work as a seamstress when making bridal wear, I find that she would no longer be engaging in that work because of the tinnitus from which she suffers.  Indeed, when she actually undertook to make the whole of the bridal and bridesmaids gowns together with certain clothing, cravats and the like for the groom and best man some time in the past, she realised that she could never take on such an order again, because it was too much of a strain to her.  In any event, even if she has lost some earning capacity because not only does her tinnitus make it difficult to concentrate in her sewing, but also because she finds that she can no longer sit for long period at her sewing machine, I have no evidence of what capacity she had to earn an income from the sewing that she did.

Rather, I think, the plaintiff enjoyed sewing as a hobby and, seemingly, when her sleep was disturbed at night by her tinnitus, she used to get up and sew to counter the ringing in her ears.

I consider that the loss of her ability to sit for long periods at her sewing machine falls into the category of loss of amenities to which I now turn.

There are a number of activities which the plaintiff used to enjoy in addition to her sewing and from which she derived enjoyment, and which she can no longer undertake.

Her day used to start early in the morning with a brisk one hour walk with friends.  She cannot do that any more.  That was followed by two hours of gardening.  She also gardened again after the heat of the day had finished.  She took a great pride in keeping her large garden in first class condition.  Since the accident she has had to reduce the gardening by planting ground cover.  She can now just potter around the garden and manages to mow the grass.  Friends help her with the rest.

She enjoyed playing ten pin bowls on a regular basis.  She can no longer do that.

She participated in dancing which she enjoyed, but can no longer to that.

She enjoyed camping regularly but has had to give that away.  Sitting in the car and driving for any length of time brings pain in her knee.

She went on an overseas trip to the United States of America.  That proved to be a disaster and she realises now that she cannot cope with holidays of that kind.

The plaintiff used to paint her home regularly and is unable to do that any more.  Nor is she able to clean the house inside and outside to prevent mildew from building up as it does in Cairns.

She can no longer climb ladders to clean the gutters.

Cleaning the inside of the house used to take her one day each week.  However it now takes her three days.

The loss of all these amenities for a person who has been so active and from which she derived such pleasure must be fairly substantial.  Moreover, the pain and suffering that she has endured and is likely to endure in the future, although I think that the plaintiff has exaggerated it to a certain extent, must nevertheless be given its full weight.

On the one hand I bear in mind that the tendency is for this head of compensation to be underestimated and, on the other hand that care must always be taken lest pain in the past should bulk too large in an assessment of damages.  Be that as it may, in the present case the loss of amenities and pain and suffering are likely to continue into the future and that will be so even if the plaintiff had a total knee replacement.  In such a case the pain may go but the restrictions and complication that I have mentioned would remain.

In all the circumstances I would assess the damages for pain, suffering and loss of amenities and enjoyment of life in the sum of $25,000.

After her return to Cairns and since, the plaintiff has received something of the order of two hours per week voluntary help from family and friends.  I think it likely that she will either to continue to receive such help or, in the alternative, may have to engage the services of someone to assist her on a casual basis either in her garden or in her house.

Doing the best I can and taking into account the contingency that she may move to a smaller home where less maintenance is needed, I would award $11,560 under this head of damage for both past and the future.

Assuming as I do, for present purposes, that the defendants are liable, I would reduce the plaintiff’s damages by 20% on account of her contributory negligence.  I do not regard the plaintiff’s fall as having been caused by some momentary inadvertence on her part.  The fact of the matter is that she must have been fully aware that she was entering a house with which she was not familiar.  She was aware that the passageway that she was walking down was dimly lit.  However, the house was not so dimly lit that a person exercising reasonable care for their own safety and keeping a proper look out, would fail to notice that not only was the floor level in the lounge at a lesser level than the floor level in the passageway and that the purpose of the balustrade was to prevent persons walking in the passageway from descending into the lounge other than by the step provided and that when the person in front of such person (in the present case Mrs Snell) had to negotiate the steps at the end of the balustrade.

Summary of Damages

Future medical and like expenses  $ 6,500.00
Agreed special damages  2,517.35
Pain, suffering and loss of amenities and enjoyment of life          25,000.00
Voluntary and paid help  11,560.00
  ________

$45,577.35
Reduced by 20% for contributory negligence  9,115.47
  ________

TOTAL  $46,461.88

However all that may be, the first question to be answered is whether the defendants were negligent at all.

It is an admitted fact that at all material times the defendants were the occupiers of the premises situated at 10 Indee Crescent, Craigmore, South Australia.

It is also admitted that on or about 5 April 1994 at approximately 7 pm the plaintiff attended at the premises of the defendants in order to attend at a birthday party which the defendants had invited her to.

It is also clear on the facts that I have found that on that occasion the plaintiff fell down into the lounge and landed on her right knee.

The law requires an occupier of premises to take reasonable care for the safety of persons entering upon those premises, bearing in mind what is reasonable will vary with the circumstances of the plaintiff’s entry upon those premises.  The duty owed by an occupier is governed by the decision of the High Court of Australia in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, in which the Court applied the following observations made by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at pages 662-663 -

'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.'

Section 17C of the Wrongs Act prescribes the occupiers duty of care as follows -

‘17C.        (1) Subject to this Part, the liability of the occupier of premises for injury, damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence. 

(2)    In determining the standard of care to be exercised by the occupier of premises, a court shall take into account-

(a).... the nature and extent of the premises; and

(b)the nature and extent of the danger arising from the state or condition of the premises; and

(c).... the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and

(d)the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and

(e).... the extent (if at all) to which the occupier was aware, or ought to have been aware, of-

(i).... the danger; and

(ii)   the entry of persons onto the premises; and

(f).... the measures (if any) taken to eliminate, reduce or warn against the danger; and

(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and

(h)... any other matter that the court thinks relevant. 

(3)    The fact that an occupier has not taken any measures to eliminate, reduce or warn against a danger arising from the state or condition of premises does not necessarily show that the occupier has failed to exercise a reasonable standard of care. 

(4)    Subject to any Act or law to the contrary, an occupier's duty of care may be reduced or excluded by contract but no contractual reduction or exclusion of the duty affects the rights of any person who is a stranger to the contract. 

(5)    Where an occupier is, by contract or by reason of some other Act or law, subject to a higher standard of care than would be applicable apart from this subsection, the question of whether the occupier is liable for injury, damage or loss shall be determined by reference to that higher standard of care. 

(6)    An occupier owes no duty of care to a trespasser unless-

(a)the presence of trespassers on the premises, and their consequent exposure to danger, were reasonably foreseeable; and

(b)the nature or extent of the danger was such that measures which were not in fact taken should have been taken for their protection.’

Section 17E makes provision for the exclusion of conflicting common law principles as follows -

‘17E.        (1)    Subject to subsection (2), this Part operates to the exclusion of any other principles on which liability for injury, damage or loss attributable to the state or condition of premises would, but for this Part, be determined in tort. 

(2)    This Part does not apply to a case where an occupier causes a dangerous state or condition of premises, or allows premises to fall into a dangerous state or condition, intending to cause injury, damage or loss to another.’

The premises were residential premises in which the two defendant had lived for some ten years.  During the whole of that time they were unaware of any similar accident being experienced by anyone.  Nor were they aware of any accident of that kind occurring to anyone during the seven years of occupation by the previous owners.

As far as I could make out the house was, at the time of the accident, about thirteen years old.

I consider that an occupier in the position of the defendants is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they actually know it is unsafe or else receive a warning that it may be unsafe (see Short & Anor v Barrett 5 October 1990, NSW Court of Appeal CA40246 of 1989 - CCH Australian Torts Reporter para 10-335).

Although the going on the step between the passageway and the lounge is but 240 mm, I do not consider that to be a danger.  True it is that when I stepped down on to the step myself the end of the sole of my shoe extended beyond the edge of the step.  However, I do not think that that presents as a danger if one is taking reasonable care and keeping a proper look out.  Furthermore, the real cause of the plaintiff falling down into the lounge, in my opinion, was the fact that her attention was somewhat distracted by other people in the patio outside.

I have already described the circumstances in which the plaintiff is alleged to have suffered the injury and need not repeat it.

I have also mentioned that at the time of the accident the plaintiff was 51 years of age.  She was an active and alert person.  If there was any danger, which I doubt, I have no doubt that she would have had the ability to appreciate it.

I have already mentioned that the defendants were not aware of any danger being constituted by the nature of the step into the lounge and nor had they any experience of anyone being injured as a result of the nature of that step.

I have no evidence before me as to the extent (if at all) to which it would have been reasonable and practicable for the defendants to take measures to eliminate or reduce or warn anyone against the danger, if there was a danger in the nature of the step.

In my opinion, it has not been demonstrated that the defendants have failed to exercise a reasonable standard of care and, in those circumstances, the plaintiff’s claim must be dismissed.

Accordingly, there will be judgment for the defendants.