Davies v George Thomas Hotels Pty Ltd
[2010] NSWDC 55
•21 April 2010
CITATION: Davies v George Thomas Hotels Pty Ltd [2010] NSWDC 55 HEARING DATE(S): 8, 9 and 14 April 2010
JUDGMENT DATE:
21 April 2010JURISDICTION: Civil JUDGMENT OF: Murrell SC DCJ CATCHWORDS: TORTS - negligence - slip and fall at Hotel - injuries to patron - duty of Hotel occupier to patron - intoxication of plaintiff - contributory negligence - Trade Practices - whether breach of implied warranty in connexion with services LEGISLATION CITED: Civil Liability Act 2002 ss 5B, 5D, 5R and 50
Evidence Act 1995 s 183
Trade Practices Act 1975 (Cth) s 74CASES CITED: Action Paintball Games Pty Ltd Clarke [2005] NSWCA 170
C.A.L. No14 Pty Ltd v Motor Accidents Insurance Board and Anor [2009] HCA 47
Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Harris v Woolworths Ltd [2010] NSWSC 25
Jackson v Lithgow City Council [2008] NSWCA 312
Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
Mason v Demasi [2009] NSWCA 227
Russell v Edwards [2006] NSWCA 19PARTIES: Alan Kenneth Davies
George Thomas Hotels (Bradbury) Pty Ltd (T/As BradburyInn Hotel)
Peter NelliesFILE NUMBER(S): 2175/09 COUNSEL: Mr Lidden SC and Mr Daley of Counsel for the Plaintiff
Mr Heath of Counsel for the First and Second DefendantsSOLICITORS: Brydens Law Office for the Plaintiff
Turks Legal for the First and Second Defendants
The Claim
1 At about 2 or 3 pm on the afternoon of Saturday 12 July 2008, the plaintiff attended the Bradbury Inn Hotel, where he was to meet his friend, Mr Vardy. Just before 10pm, the plaintiff went to the male bathroom adjacent to the public bar. He took a couple of steps inside and then slipped on the floor, landing heavily on his back. His right ankle was fractured.
2 The plaintiff sues the hotel and Mr Nellies, the licensee, alleging breach of their duty of care as occupiers and breach of s 74 of the Trade Practices Act 1974 (Cth). The plaintiff claims that the bathroom floor was wet and there was no warning of the danger.
The Issues3 The defendants admit that, as the occupiers of the hotel, they owed a duty of care to the plaintiff. They claim that there was only a small amount of moisture on the floor – consistent with normal use of the urinal – and that there was a warning sign visible immediately on entering the bathroom. They assert that there was an appropriate cleaning system.
- (1) The circumstances in which the accident occurred, including the cause and extent of the moisture on the floor and the adequacy of the cleaning system.
(2) Whether the defendants breached their duty of care.
(3) Whether the plaintiff’s fall was caused by any breach of duty.
(4) Whether s 50 (2) of the Civil Liability Act applies because the plaintiff was intoxicated.
(5) Contributory negligence.
(6) Whether there was any breach of s74 of the Trade Practices Act.
(6) The extent of the plaintiff’s non-economic loss.
(7) The extent of any diminished future earning capacity.
(8) Whether the plaintiff is entitled to future domestic assistance.
4 As to the plaintiff’s injuries and ongoing disabilities, there is no substantial dispute.
The Witnesses
5 The plaintiff was a very credible witness. Dr Herald, the defendants’ medico legal expert, accepted that the plaintiff gave an accurate account of his injuries and disabilities. The plaintiff is a stoic individual who returned to work while still on crutches. He was not the sort of person who would lie or exaggerate in order to obtain compensation.
6 The plaintiff's friend Mr Vardy is a dour and careful person. He was not inclined to overstatement. He had the prescience to obtain photographs of the plaintiff soon after the accident (Exhibit A, taken after the plaintiff arrived at hospital) and photographs of the bathroom floor on the day after the accident (Exhibit D). Those photographs are strongly corroborative of Mr Vardy's evidence. Exhibit A shows wetness near the cuff of the plaintiff's right trouser leg. Exhibit D shows the bathroom floor covered with water on the day after the accident. Some of the more damaging aspects of Mr Vardy's testimony emerged in cross-examination. For example, in cross-examination it emerged that he had trained as a plumber and was therefore in a good position to express an opinion about the source of the water on the bathroom floor. Mr Vardy was a very reliable witness.
7 Mr Robertson, the hotel employee who was directly responsible for bathroom maintenance on the night of the accident, impressed as an honest witness. He was a simple person who had a genuinely poor memory. He said that it was his usual practice to check the bathroom frequently and clean it diligently. However, he could not specifically recall what he did on the Saturday night in question. It was a “busy night" when there was "strong trade" (Exhibit 8, the defendants’ diary). On a busy night, Mr Robertson was usually "flat out" on a variety of tasks.
8 Mr Nellies gave evidence in an apparently credible way. However, he was an experienced witness, having been a police officer for many years. I formed the view that, as a witness, he was considerably less reliable than the plaintiff and Mr Vardy. For example, although he had seen fit to direct staff to erect a "precautionary" yellow warning sign prior to 8 pm in the evenings, Mr Nellies maintained that, even when wet, the bathroom floor was "not a great slipping hazard". On the other hand, Mr Robertson credibly conceded that, when wet, the floor became slippery and that was why it was his practice to erect the sign soon after he commenced his shift. Mr Nellies account of a conversation with Mr Vardy lacked credibility (paras [12], [15] and [16] below).
The Accident
9 Mr Vardy gave evidence that, at about 5 pm, he entered the bathroom and saw that the floor was wet. He observed that water was leaking from the toilet pan area. It covered "90% of the floor" within the bathroom area. He warned some friends with whom he was drinking about the state of the toilet. Unfortunately, at that stage the plaintiff was not among the group.
10 At about 9:50 pm the plaintiff entered the bathroom area for the first time that day (the ambulance was called at 9:55 pm per Exhibit 10). The plaintiff was wearing leather-soled boots that were not particularly slippery. Having taken a couple of steps into the bathroom, he slipped and fell heavily onto his back, losing consciousness for a few seconds. When he recovered consciousness, his right leg was out to one side and was causing extreme pain.
11 It was the plaintiff's evidence that, when he regained consciousness, he found that he was lying in water. His back felt wet. The floor was "a mess with water and toilet paper". The defendants submitted that the history provided to the hospital was inconsistent with the plaintiff’s evidence. I cannot identify any significant inconsistency. In any event, apparent inconsistencies between evidence and medical records may be discounted for a variety of reasons: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 per Basten JA at [8], Mason v Demasi [2009] NSWCA 227 per Basten JA at [2].
12 Mr Vardy said that, when he entered the bathroom immediately after the accident, the plaintiff was unconscious. The appearance of the bathroom floor was similar to the appearance at 5 pm. There was "a fair amount of water" and toilet paper on the floor. When Mr Nellies entered the room, the following conversation occurred:
- Mr Vardy: "This place is fucked. Peter, have a look at this toilet, it's a disgrace. "
Mr Nellies: ”What do you want me to do?”
13 At about 6 pm on Sunday 13 July, Mr Vardy returned to the premises with a camera. He took photographs (Exhibit D). As to the quantity of water on the floor as depicted in Exhibit D, Mr Vardy said that, on the preceding night, the quantity of water was "the same or worse". Although he did not closely inspect the toilet pan area on the Sunday, he could see that the water was coming from that area. Potential sources of the water were a leaking pan or a leaking tap (there was a tap on the wall behind the pan). The bathroom floor level fell from the toilet pan area to a waste that was located next to the urinal and near to the bathroom door, in the area of the accident.
14 I note that the entry door and the waste are visible in Exhibit 6. The waste is within a couple of steps of the entry door.
15 Mr Nellies said that, when he entered the bathroom area, the only liquid on the bathroom floor was a “splash” near the urinal, "like raindrops". Otherwise, the floor was dry. The plaintiff was lying in a position consistent with having slipped on the small amount of liquid associated with the urinal (as depicted by Mr Nellies in Exhibit 5). Mr Nellies agreed that he had a conversation with Mr Vardy, but said that it was as follows:
- Mr Vardy: "This place is fucked"
Mr Nellies: "What do you mean? I am here helping him. I have a great deal of respect and concern for him.”
16 The position of the plaintiff depicted in Exhibit 5 is consistent with the plaintiff walking towards the bathroom door when he fell. No such a scenario was put to the plaintiff. As to Mr Nellies’ version of the conversation with Mr Vardy, I find it inherently improbable that Mr Nellies would not have made the asserted statement. It would not have been responsive to Mr Vardy's statement (which concerned premises rather than the conduct of Mr Nellies), and it would have been a very polite response, given the robust allegation made by Mr Vardy. I do not accept Mr Nellies’ evidence regarding the position of the plaintiff after the fall, the terms of the conversation with Mr Vardy, or the condition of the bathroom floor. I much prefer the evidence of the plaintiff and Mr Vardy, whom I consider to be conservative and reliable witnesses.
17 I am satisfied that the plaintiff slipped and fell in a large area of water similar to that depicted in Exhibit D. The water emanated from a leak in the toilet pan area and extended to the bathroom waste, which was located within a couple of steps of the door. The defendants had a satisfactory cleaning system that involved regular checking and mopping by a responsible employee (Exhibit 3, evidence of Mr Robertson). One possibility is that, on the evening in question, the system was not implemented because it was a busy night and Mr Robertson was distracted by other duties. The other possibility is that the cleaning system was adequate only to cope with normal cleaning requirements and was inadequate to deal with the volume of water emanating from the leak.
18 Mr Nellies said that he saw the yellow "caution wet floor" sign (depicted in Exhibit 1) clearly displayed when he entered the bathroom area after the accident. The defendants relied upon the register of incidents in relation to 12 July, which states "the slippery when wet sign was clearly displayed where it could easily be seen" (Exhibit 7). Exhibit 8, the written weekly summary that is compiled from the hotel diary contains an entry to the same effect. It seems that the first of the defendants’ employees to enter the bathroom after the accident was Mr O'Brien, the duty manager on the evening of 12 July. He made the relevant entry in Exhibit 7. He has been dismissed from the defendants’ employ and was not called to give evidence. Consequently, the Court has not had the benefit of his evidence as to the circumstances in which he came to make the entry. Mr Nellies placed considerable emphasis on the entry. It may be that his recollection of seeing the warning sign is a mistaken memory, which has been influenced by his knowledge of Exhibits 7 and 8.
19 The plaintiff and Mr Vardy were adamant that no warning sign was erected. I find the plaintiff and Mr Vardy to be reliable witnesses in relation to all aspects of their evidence, including their evidence about the warning sign. I am satisfied that, when the plaintiff entered the bathroom, the warning sign was not positioned so that it could be seen by a patron as he entered the bathroom.
Breach of Duty
20 Among other duties, a hotel occupier owes a patron a duty to take reasonable care to ensure that the hotel premises are physically safe: C.A.L. No14 Pty Ltd v Motor Accidents Insurance Board and Anor [2009] HCA 47 at [31].
21 The plaintiff alleges that the defendants breached their duty of care inter alia by allowing one of the toilets to leak so that a large quantity of water was deposited onto the floor, failing to institute and maintain an appropriate system of floor cleaning, and failing to warn the plaintiff that water and other debris had accumulated on the bathroom floor.
22 The Civil Liability Act 2002 governs the proceedings. Section 5B of the Act provides:
“5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.”
23 In Harris v Woolworths Ltd [2010] NSWSC 25, R A Hulme J considered the decision in Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21, in which the Supreme Court of the ACT reviewed "slippery floor" cases and observed there are three classes of breach of an occupier's duty of care. The first class involves foreign matter that has been on the floor for longer than is reasonable before it should have been removed. The second class is where there is no reasonable system for inspection and cleaning; in those circumstances it is open to be inferred that, had such a system been in place, the fall would be have been avoided. The third class is where the substance should not have been allowed on the floor in the first place; in such cases it does not matter how long the substance has been on the floor or whether the cleaning system is reasonable.
24 The defendants concede that slipping on the bathroom floor was clearly foreseeable and that, given the existence of the warning sign, the risk of slipping could not be said to be insignificant. The defendants submit that the issue is whether, in the circumstances, the defendants should have taken precautions beyond those that were taken.
25 Based on the evidence of Mr Vardy, I infer that a leak commenced in the toilet pan area before 5 pm on 12 July. Between 5 pm and 9:50 pm, a reasonable person in the defendant's position would have taken the precaution of repairing the leak, at least on a temporary basis. Consequently, the matter falls into the third class identified in Kelly and Harris. The water should not have been on the floor for any longer than the brief period required to identify and repair the leak. If it proved impossible to repair the leak within a short period, then a reasonable person would have instituted an emergency cleaning system that ensured that the floor was kept dry, or shut the bathroom and required patrons to use the toilet located in the bistro area. At the very least, a reasonable person would have erected an appropriate warning sign. Given the proximity of the hazard to the bathroom door and the likelihood that the reaction time of patrons may be compromised because of their consumption of alcohol, a reasonable person would have placed the warning sign in a prominent position outside the bathroom door.
Whether the Breach Caused the Fall
26 Section 5 D of the Act provides:
5D General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (“ factual causation ”), and
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (“ scope of liability ”).
(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent:
(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
27 There is no doubt that the defendants’ negligence in failing to repair the leak was a necessary condition of the occurrence of the fall and the plaintiff’s injury. Further, I infer that, had a warning sign been placed in a prominent position outside the bathroom, the plaintiff would have entered the bathroom very carefully and it is likely that he would not have slipped. The defendants did not contend that the difficulty of addressing a leak or placing a warning sign was such that they should avoid liability by reason of the operation of s 5D (1) (b).
Intoxication
28 The defendants rely upon s 50 of the Act, which provides:
"50 (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person’s capacity to exercise reasonable care and skill was impaired.
(2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated .
(3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person’s intoxication did not contribute in any way to the cause of the death, injury or damage.
(4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. “ (emphasis added)
"Intoxication" is defined in s 48 of the Act as follows:
"A reference in this Part to a person being “ intoxicated” is a reference to a person being under the influence of alcohol or a drug (whether or not taken for a medicinal purpose and whether or not lawfully taken).”
29 The reference in section 50 (1) to “the act or omission that caused … the injury" is a reference to the "direct" or "proximate" cause, in the sense of being the effective, dominant or operative cause: Russell v Edwards [2006] NSWCA 19.
30 The plaintiff gave evidence that he had consumed eight or nine standard drinks in the course of the afternoon and evening (a period of six or seven hours from 2 or 3pm to almost 10pm). However, the ambulance and hospital notes (Exhibits 10 and 11) record statements (inferentially, made by the plaintiff) that he had consumed 12 (12 plus) standard drinks. As the ambulance and hospital notes are consistent, I accept that they accurately record statements by the plaintiff. Those contemporaneous statements are likely to be a reasonably accurate account of the plaintiff’s consumption of alcohol. In the course of the evening, the plaintiff consumed food. The plaintiff is a man of medium height and build. The ambulance notes also record "alert orientated intoxicated" and refer to the "patient’s intoxicated state". The hospital notes (Exhibit 11) record "orientated … alcohol smell". At the hospital, the plaintiff’s ethanol (blood alcohol) reading was obtained. However, there was no evidence to explain that reading.
31 I accept the evidence of the ambulance and hospital records to the effect that the plaintiff was "intoxicated". I infer that the plaintiff was "intoxicated" within the meaning of s 48 in that he was " under the influence of alcohol”. The issue is whether he was "intoxicated to the extent that (his) capacity to exercise reasonable care and skill was impaired" within the meaning of s 50(1).
32 In the period preceding the accident, Mr Vardy was not in the plaintiff's company. However, he saw the plaintiff just before the plaintiff went into the bathroom and he did not notice any symptoms of drunkenness. I take this to mean that Mr Vardy did not notice any symptoms of extreme drunkenness, such as staggering. Mr Vardy was not in a position to notice subtle symptoms. On the evening in question, Mr Nellies applied a "responsible service of alcohol" policy, with the consequence that a number of patrons were refused entry or service. The policy was not applied to the plaintiff. I accept the evidence of Mr Vardy to the effect that the plaintiff was not highly intoxicated. Mr Vardy's evidence is consistent with the evidence that the plaintiff was not refused service. It is also consistent with the ambulance and hospital records that describe the plaintiff as "oriented" and "alert".
33 The defendants refer to the High Court decisions in C.A.L No 14 and Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29. In the context of discussing whether publicans owe a duty to monitor and limit the consumption of alcohol by patrons in order to prevent patrons from injuring themselves, in C.A.L No 14 at [54], Gummow, Heydon and Crennan JJ observed: “Virtually all adults know that progressive drinking increasingly impairs one's judgment and capacity to care for oneself”. In Cole at [131] Callinan J observed:
“The (risk of a patron injuring him/herself) begins when the first drink is taken and progressively increases with each further one. Everyone knows at the outset that if the consumption continues, a stage will be reached at which judgment and capacity to care for oneself will be impaired, and even ultimately destroyed entirely for at least a period.”
34 While those observations are undoubtedly true, they do not assist in the determination of whether, in the circumstances of the present case, the plaintiff was intoxicated ”to the extent that his capacity to exercise reasonable care and skill was impaired".
35 The defendants rely on s 183 of the Evidence Act 1995 and Jackson v Lithgow CityCouncil [2008] NSWCA 312 at [9]. Based on the hospital and ambulance records, I am asked to infer that the plaintiff had consumed so much alcohol that his capacity to exercise reasonable care and skill was impaired. There may be cases in which a court would draw such an inference although there was neither expert evidence nor evidence of conduct demonstrating impairment. However, I am not prepared to do so.
36 The question of impairment of reasonable care and skill must be considered in the context of the task in question. It is a matter of common knowledge that, in relation to the performance of complex cognitive functions such as driving, a relatively low level of intoxication may impair reasonable care and skill. However, a relatively low level of care and skill is required to enter a bathroom with reasonable safety. Under s 50(1), the onus is on the defendants. It is not discharged. Consequently, s 50 does not apply.
Contributory Negligence
37 The defendants raise contributory negligence, pleading a failure to take proper care, a failure to keep a proper lookout, the wearing of inappropriate footwear and intoxication.
38 Section 5R of the Act applies.
39 None of the particulars of contributory negligence is made out. The plaintiff had taken only one or two steps inside the bathroom when he encountered the wet floor and slipped. It was an unexpected hazard of which he had no forewarning. There was no evidence that his footwear was inappropriate. While there was evidence of intoxication, there was no evidence that the plaintiff’s level of intoxication contributed to the accident.
Trade Practices Act
40 The plaintiff brings a claim against the first defendant under s 74 of the Trade Practices Act (Cth), which provides:
“74 (1) In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill and that any materials supplied in connexion with those services will be reasonably fit for the purpose for which they are supplied.”
“Services” is defined in section 4 as follows:
“ services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce, and without limiting the generality of the foregoing, includes the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:
a contract for or in relation to:
…
(ii) the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction;
…”
41 The plaintiff claims that there was an agreement between the plaintiff and the first defendant whereby the first defendant would provide the plaintiff with food, drink and a pleasant environment in which to consume those commodities. The plaintiff claims that it was a term of the agreement that the “materials” (the premises, including the bathroom) supplied in connection with those “services” would be reasonably fit for the plaintiff’s use.
42 In Action Paintball Games Pty Ltd Clarke [2005] NSWCA 170, the plaintiff was injured when he slipped during a game of paintball. At the time of the accident, it was raining heavily and the goggles supplied to the plaintiff fogged up. At [21], Basten JA considered but did not resolve the question of whether the playing field fell within the concept of "materials" for the purposes of s74 (1) of the Trade Practices Act (Cth). His Honour doubted that the playing field was "materials".
43 In my view, the "services" that were provided to the plaintiff were food and drink. Each time that the plaintiff purchased food or drink, he contracted with the first defendant or, in the case of food purchased in the bistro, with the independent contractor who supplied that food. The glass in which beer was served to the plaintiff was "materials" supplied in connection with the contract to purchase beer, but the hotel bathroom was not.
Non-Economic Loss
44 The plaintiff sustained a serious trimalleolar fracture to the right ankle. To date, there have been three hospital admissions. Initially, the plaintiff underwent an open reduction and internal fixation of the ankle fracture. A backslab was applied. On 14 July, the plaintiff was discharged on crutches. The plaintiff remained on crutches for about five months.
45 The wound healed slowly. It became infected. The plate became unstable. In August 2008, the plaintiff underwent a second operation in which a larger plate was inserted. He was hospitalised for six days and released with a backslab and antibiotics. In October 2008, a plate and screw were removed from the right ankle. The wound did not heal well. In late 2008, it became infected. The plaintiff was treated with a lengthy course of antibiotics and compression bandages. Thereafter, the wound healed. However, the plaintiff continues to suffer from underlying osteomyelitis and there is an associated risk of future infection. The plaintiff will probably require a fourth procedure to remove hardware from his ankle. There is a possibility that the ankle will require fusion. The plaintiff has undertaken physiotherapy. He attends a gym, where he does exercises to strengthen the right ankle.
46 During the latter half of 2008, the plaintiff had difficulty coping with domestic chores. His former wife and current girlfriend provided some assistance. The plaintiff was in pain, had difficulty sleeping and was worried that the wound was not healing. He became depressed about his condition and the fact that he was unable to work.
47 Prior to the accident, the plaintiff was a jovial person with a good sense of humour. He is now more irritable and easily provoked. He becomes impatient with his adult children and work colleagues. His sense of humour is diminished. He has lost self-confidence.
48 The plaintiff suffers restricted movement in the right ankle. There is ongoing stiffness, weakness and intermittent aching pain in the right ankle. There is numbness and tingling down the lateral side of the ankle and into the foot. There is an unattractive scar on the right ankle (Exhibit B) with altered sensation in the scar area, extending into the foot. The scar is sensitive to knocks. The plaintiff tends to wear thick socks and boots. There is wasting of the right calf. The plaintiff has difficulty walking on slippery surfaces, uneven ground and stairs. The plaintiff’s ankle starts to ache if he stands for about 10 minutes or walks a short distance. He cannot run without aggravating the pain. Kneeling, squatting and pivoting are very difficult.
49 The injury is stable. It is unlikely to improve. Dr Dave, the plaintiff's treating orthopaedic surgeon, referred to the possibility of future osteoarthritis. Dr Herald conceded that possibility. In the opinion of Dr Conrad, the plaintiff's medico legal expert, there is a "probability" that the plaintiff will develop osteoarthritis in the right ankle, which "may become severely symptomatic" within 10 to 15 years.
50 Prior to the accident, the plaintiff had an active lifestyle. He enjoyed surfing, cycling and attending the gym. Since the accident, he has not returned to surfing because his right ankle is unstable. He has tried cycling with little success because his ankle becomes painful and tired. At the gym, the plaintiff's activities are restricted because of pain and weakness in the right ankle. Previously, the plaintiff enjoyed landscape gardening but he has been unable to pursue that recreational interest. His weight has increased. The plaintiff remains upset by the effect of his disabilities upon his lifestyle.
51 The plaintiff has a life expectancy of 30 years.
52 I assess the plaintiff as 31% of the most extreme case.
Future Out-of-Pocket Expenses
53 The plaintiff will need to consult his general practitioner from time to time and may occasionally need to consult a specialist. From time to time, he will need to purchase anti-inflammatory medication. In relation to the underlying osteomyelitis, he may require antibiotic treatment.
54 The plaintiff may require further surgery to remove screws. If he develops arthritis, he may require an ankle fusion or ankle replacement. The estimated cost of any future surgery is $10,000. However, surgery is only a possibility.
55 I propose to allow $15,000 for future out-of-pocket expenses.
Future Domestic Assistance
56 The plaintiff lives with his partner, her teenage children and her elderly parents. His partner works full-time. The plaintiff believes that it is his responsibility to undertake all the mowing and gardening. At some personal cost, he undertakes that work. However the work is not up to the plaintiff’s former high standard. On occasions, his partner has to assist with the mowing. The plaintiff and his partner believe that the plaintiff should assist with housework, perhaps to the extent of undertaking about 20% of the housework. However, because of his disability, the plaintiff is unable to assist with most household tasks. For example, he cannot vacuum for a significant period of time and cannot clean the bathrooms. As the internal cleanliness of the premises was falling "below minimum standards", the couple has employed a cleaner three hours per fortnight at a cost of $90. The plaintiff's partner gave uncontested evidence that such assistance was only necessary because of the plaintiff's disabilities.
57 Dr Herald suggested that the plaintiff should purchase a home with a small yard. He agreed that the plaintiff could require the assistance of a gardener to perform heavy gardening activities, particularly if the plaintiff had a large yard. In Dr Herald's opinion, the plaintiff would require assistance with household tasks and gardening that involved pushing or lifting. Dr Herald accepted that it would be appropriate to allow a small amount for future domestic assistance, depending on the plaintiff's domestic circumstances. In Dr Conrad's opinion, the plaintiff may need about six hours per week of domestic assistance.
58 I allow a sum of $60 per week in relation to domestic assistance. That sum should allow the employment of a cleaner two hours a week and the occasional employment of a lawnmower/gardener.
Past and Future Employment
59 The plaintiff attained his School Certificate. Apart from a significant period working part-time as a club steward, the plaintiff has generally been employed in survey work. For most of the period since 1984, he has worked for Campbelltown City Council as a coordinator of civil works. Normally, the position involves 40% to 50% of work time being devoted to site inspections, including walking on rough surfaces and climbing down into trenches. Prior to the accident, the plaintiff earned considerable overtime. He was entertaining the possibility of starting his own consultancy business. To his observation, there was a shortage of consultants in his field.
60 Apart from a period of one week from 29 September to 6 October 2008, the plaintiff was off work from 12 July to 28 November 2008. Thereafter, he worked in restricted duties. The plaintiff is fortunate to have a sympathetic and supportive employer. Initially, the plaintiff reduced his site inspection work to about 10 to 20% of total work. Later, the site inspection component was increased to its current level of 20 to 30%. However, the plaintiff is permanently unable to resume full site inspection duties because he cannot climb down into trenches or undertake other demanding work. Another employee must undertake those tasks. The plaintiff has dismissed the possibility of starting his own consultancy business because he would be unable to perform all the necessary tasks. Further, he lacks the self-confidence to start a new business.
61 The plaintiff’s overtime payments have fallen from about $6-$10,000 per annum to no more than about $2000. Comparing the 2008 financial year records with those for the 2009 financial year, the defendant has assessed a net weekly difference of approximately $100. The plaintiff claims an amount of up to $150 per week by way of lost overtime. Allowing for some wage increase, I propose to allow the sum of $115 per week by way of lost overtime.
62 In relation to future economic loss, consideration must be given to future loss of overtime, the possibility that the plaintiff will lose his current employment and will be greatly disadvantaged in the open employment market, the loss of the opportunity to become self-employed as a consultant (although there was no evidence as to the financial advantages that might attach to such a consultancy), and the associated loss of superannuation. In addition, the possible impact of osteoarthritis must be considered. I infer that the plaintiff did intend and still hopes to remain in the workforce until 65 years of age. I assess future economic loss on the basis of a loss of $250 per week over 12 years, discounted by 5% and by 15% for contingencies.
Damages
63 I award the following damages:
1. Non-economic loss (31% of most extreme case) 2. Past out-of –pocket expenses (agreed) 3. Future out-of-pocket expenses 4. Past economic loss
a. ordinary wage loss (agreed) $13,546
b. loss of overtime ($115 x approx 1.75 years) $10,500
c. superannuation (11% x $23,846) $2,6235. Future economic loss ($250 x 12, discounted 5% and 15% 6. Future domestic assistance ($60 x 5% over 30 years)
0
9
3