| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DINNISON -v- MINDARIE REGIONAL COUNCIL [2005] WADC 252 CORAM : COMMISSIONER ARCHER HEARD : 12-15 APRIL & 1 AUGUST 2005 DELIVERED : 20 DECEMBER 2005 FILE NO/S : CIV 116 of 2004 BETWEEN : GLENDA AMANDA DINNISON Plaintiff
AND
MINDARIE REGIONAL COUNCIL
Defendant
Catchwords: Fatal accident - Causation - Negligence - Breach of duty increasing risk - Damages - Solatium - Working past retirement age
Legislation: Civil Aviation (Carriers Liability) Act 1959
Civil Liability Act 2002
Fatal Accidents Act 1959
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947
Occupational Safety and Health Act 1984
Occupiers' Liability Act 1985
Occupational Safety and Health Regulations 1996
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Result:
Judgment for the plaintiff Representation:
Counsel:
Plaintiff : Mr B L Nugawela
Defendant : Mr J Eller
Solicitors:
Plaintiff : Vertannes Georgiou
Defendant : John Eller
Case(s) referred to in judgment(s):
Caledonian Collieries Limited v Speirs (1957) 97 CLR 202
Chappel v Hart (1998) 195 CLR 232
Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
Commissioner of Probate Duties (Vic) v Stocks (1976) 135 CLR 247
De Sales v Ingrilli (2000) 23 WAR 417
De Sales v Ingrilli (2002) 212 CLR 338
Elders v Devereaux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998
Garcia v National Australia Bank Limited (1998) 194 CLR 395
Lanza v Codemo [2001] NSWSC 845
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Marinovich v The Queen (1990) 46 A Crim R 282
McKenna v Avior Pty Ltd [1981] WAR 255
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Naxakis v Western General Hospital (1999) 197 CLR 269
Parker v The Commonwealth of Australia (1965) 112 CLR 295
Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Public Trustee v Zoanetti (1945) 70 CLR 266
Purkess v Crittenden (1965) 114 CLR 164
Richard Evans & Co Limited v Astley [1911] AC 674
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
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Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317
Thompson v City of Perth [2002] WADC 141
Williams v Commissioner for Road Transport & Tramways (NSW) (1933) 50 CLR 258
Case(s) also cited:
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Albert Ingrilli v De Sales [1998] WASCA 283
Anchor Products Ltd v Hedges (1966) 115 CLR 493
Betts v Whittingslowe (1945) 71 CLR 637
Birkholz v Gilbertson Pty Ltd (1985) 38 SASR 121
Bresatatz v Przibilla (1962) 108 CLR 541
Broadhurst v Millman [1976] VR 208
Brodie v Singleton Shire Council (2001) 206 CLR 512
Cavanett v Chambers [1968] SASR 97
Commissioner of Probate Duties (Vict) v Stocks (1976) 135 CLR 247
Czatyrko v Edith Cowan University [2005] HCA 14
Edith Cowan University v Czatryko [2002] WASCA 334
Edwards v Breeze [1964] NSWR 736
Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49
Fox v Percy (2003) 214 CLR 118
Giorginis v Kastrati (1989) Aust Torts Report 80-233
Graham v Baker (1961) 106 CLR 340
Jones v Dunkel (1959) 101 CLR 298
Kschammer v R W Piper & Sons & Ors [2003] WASCA 298
Leichhardt Municipal Council v Green (2004) Aust Torts Rep 81 753
Lipohar v The Queen (1999) 200 CLR 485
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
McDonald t/as BE McDonald Transport v Girkaid Pty Ltd (2004) Aust Torts Rep 81 768
McGhee v National Coal Board [1973] 1 WLR 1
Monarch Steamship Co Ltd v Karlshamns Oljefabriker (A/B) [1949] AC 196
Paul v Rendell (1981) 34 ALR 569
Pennington v Norris (1956) 96 CLR 10
Pope v Ewendt (1977) 17 SASR 45
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304
Smith v McIntyre [1958] Tas SR 36
Stapley v Gypsum Mines Ltd [1953] AC 663
Swain v Waverley Municipal Council [2005] HCA 4
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Taylor Woodrow Homes Builders Pty Ltd v Chitarra & Anor, unreported; FCt SCt of WA; Library No 940739; 30 December 1994
Thompson v City of South Perth [2003] WASCA 106
TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267
Todorovic v Waller (1981) 150 CLR 402
Ward v Western Australia (1998) 159 ALR 483
Watts v Rake (1960) 108 CLR 158
Watts v Turpin (1999) 21 WAR 402
Western Australia v Watson [1990] WAR 248
Woods v MultiSport Holdings Pty Ltd (2002) 208 CLR 460
Wyong Shire Council v Shirt (1980) 146 CLR 40
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Background 1 The plaintiff seeks damages for the death of her husband on 5 March 2003 at the premises occupied by the defendant. The defendant occupied a rubbish tip in Mindarie ("the tip"). 2 On 5 March 2003, Mr Dinnison and one of his sons, Neil Dinnison, went to the tip to deposit green waste. Mr Dinnison was 65 years old. He was driving his utility ("the ute"). The ute tray was full of green waste, tied down with ropes. 3 The tip had a number of tipping bays for the use of members of the public. Each bay was positioned on the edge of the tip face. Beneath each bay was a large steel skip, which was used to transfer the rubbish to the adjoining landfill site. The evidence as to the distance between the edge of the tip face and the bottom of the skip varied. However, I accept the evidence of the WorkSafe inspector, Steven Trend, who measured the distance as part of his investigation into the death of Mr Dinnison. He found the distance to be 2.7 metres from the edge of the tip face to the bottom of the bin. If a bin wasn't in place beneath a bay, the drop was 3.2 metres. 4 Mr Dinnison parked the ute on the platform at Bay No 1. 5 A 100 millimetre high concrete kerb ran for most of the length of the edge of this tip face. There were also two metal guard rails. The lower of the two rails was 1.4 metres above the level of the edge and .4 metres away from it (in other words, over the bin). Among the photographs tendered was a photograph taken two days after the accident showing Neil Dinnison, the son of the deceased, standing on the edge of the tip face. In the photograph, he is holding the lower rail. To do so, his arm is outstretched and at right angles to his body. He gave evidence that he was "just shy of six feet tall". His father was a little shorter. 6 After parking the ute, both Mr Dinnison and his son, Neil Dinnison, got out of the car. Neil Dinnison walked to the rear of the ute and undid the latch on the rear passenger side. He decided it was too dangerous to walk behind the ute to undo the latch on the other side, so he walked around the front of the ute to get to that other latch. His father was untying the ropes on the driver's side.
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7 Having undone the driver's side latch, Neil Dinnison returned to the rear passenger side of the ute, again by going around the front of the vehicle. He then untied the ropes on the passenger side. The load on the back of the ute was sufficiently high that Neil Dinnison could not see his father over the top of it.
8 Neil Dinnison then grabbed a branch from the back of the ute and pulled it to see whether it would pull some of the load with it. It did not and simply came away. He dropped it into the bin. At that time, he remarked to his father in graphic terms that it was a long way to the bottom. He then walked towards the front of the vehicle and at that time he heard a very loud noise. He went to the back of the vehicle and saw his father lying in the bottom of the bin. His father's head was towards the ute and he was lying face down with his arms underneath his body "as if he was about to do a push up". There was no other material in the bin, apart from the branch Neil Dinnison had thrown in earlier. 9 Neil Dinnison shouted out for help. He then got into the bin by firstly swinging over the edge and hanging on by his hands and then letting go, so that the distance he dropped was significantly reduced. 10 Ultimately, Mr Dinnison was taken to hospital, but died shortly afterwards.
The claim 11 The plaintiff claims that the death of the deceased was caused by: (a) the defendant's negligence; (b) the defendant's breach of s 5 of the Occupiers' Liability Act 1985 ("the Occupiers' Liability Act"), or (c) the defendant's breach of s 21(1)(b) of the Occupational Safety and Health Act 1984 ("the Occupational Safety and Health Act"). 12 In the statement of claim, the plaintiff provided particulars of what she said constituted the negligence and/or the breaches of the Acts. One such particular was an alleged breach of reg 3.55(2)(a) of the Occupational Safety & Health Regulations 1996 ("the Regulations"). However, that regulation relates to a situation where a person could fall three or more metres from an edge at a workplace. In my view, the plaintiff has failed to prove that the edge in this case was three or more metres above the base of the bin. Accordingly, that regulation does not apply here.
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13 Further, while it was not pleaded in the plaintiff's statement of claim, in his closing submission, counsel for the plaintiff argued that the plaintiff also relied on a breach of reg 3.55(1)(a) of the Regulations. However, that regulation also does not apply to this case. The edge here was not "a scaffold, fixed stair, landing or suspended slab at the workplace".
14 The plaintiff also relied on an alleged breach of the "Code of Practice for Safety and Health within the Waste Management and Recycling Industries." Section 57 of the Occupational Safety and Health Act relevantly states that: "(1) For the purpose of providing practical guidance to employers, self-employed persons, employees, and other persons that are subject to a duty under Part III of this Act, the Minister may, upon the recommendation of the Commission, approve any code of practice. … (7) A person is not liable to any civil or criminal proceedings by reason only that the person has not complied with a provision of a code of practice. (8) Where it is alleged in a proceeding under this Act that a person has contravened a provision of this Act or the regulations in relation to which a code of practice was in effect at the time of the alleged contravention — 15 It was submitted on behalf of the plaintiff that a breach of a code would ordinarily place an evidentiary burden on the defendant. In my view, a breach of a code may place an evidentiary burden on a defendant, but it will always depend on the circumstances of the case. 16 On the other hand, I accept that mere compliance with Australian standards and codes of practice does not preclude a finding of negligence. Again, it will depend on the circumstances of the case. Regulations or
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codes of practice may be overtaken by new information or new technology. Further, higher standards of care may be placed on occupiers or employers due to changing community values. 17 As was said in Lanza v Codemo [2001] NSWSC 845 at [169]: "[m]ere compliance with the standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not … Evidence as to practice, or as to the existence of the standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care."
The defence 18 The defendant denies that it was negligent and denies causing the deceased's death. The defendant further states that, if it was negligent, the deceased contributed to his death by his own negligence.
Cause of death 19 It is apparent from the evidence that the deceased died from the injuries he sustained in falling to the bottom of the bin. What is not clear is why he fell. There were no witnesses to the fall. The plaintiff called an expert witness, Dr Stephen Chew, who advanced a hypothesis as to how the deceased may have fallen. 20 Dr Chew expressed the opinion that the position of the deceased's body, namely with his head towards the ute and his feet further away, was consistent with Mr Dinnison falling backwards, striking his body on the upper bar, and falling face downwards. However, Dr Chew readily conceded that he could not exclude other possible explanations. He said he was simply offering an explanation for consideration that was consistent with the position of the deceased's body. 21 In view of that, the opinion is of no value and I disregard it. 22 The question of causation "is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience": Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6. 23 The defence raises the possibility that the deceased fainted or had a seizure at the edge of the drop and that caused him to fall. There is
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evidence that the deceased had ischemic heart disease, high cholesterol, high blood pressure, prostate cancer and other medical conditions. However, Mr Dinnison's cause of death was head and chest injuries. Further, the document from Sir Charles Gairdner Hospital dated 19 January 1998, which referred to the various medical conditions, noted that Mr Dinnison was currently asymptomatic on only a small dose of a particular medication. It further noted that his blood pressure seemed to be currently reasonably controlled. 24 There is no evidence whatsoever to suggest that the diseased was any more likely to faint or have a seizure at that moment than a person in good health. In light of the logical improbability of that event occurring at the precise moment when the deceased was standing at the edge of the tip face, I consider this to be a completely speculative and baseless possibility and disregard it. I should add that, even if such a reason was the cause of the deceased's fall, it would then be necessary to examine the reasons why the fall was fatal. Had there been no drop, or a lesser drop, or some blocking devices, Mr Dinnison may not have died. 25 Neil Dinnison noticed that all of the ropes had been neatly tied, as was his father's habit. He also noticed that there was no other plant material in the bin other than the branch that he had thrown in. That evidence tends to suggest that Mr Dinnison had finished tying the ropes and had not yet begun unloading any of the plant material. 26 It is clear that the deceased must have been towards the rear of the vehicle in order to be in a position where he could fall over the edge. One possibility is that the deceased pulled on a branch to see if he could move some of the load (as his son had done), lost his grip and fell backwards. Another possibility is that he tripped on the kerbing and fell in. It is interesting to note that the Coroner's report referred to injuries to both of the deceased's big toes. However, as that was not referred to by either counsel, nor explained by any witness, it is impossible to draw any inference from that fact. 27 In my view, it is not a reasonable possibility that he simply walked over the edge, due to the position and height of the kerb. 28 The most that can be said is that the deceased accidentally fell into the pit. In other words, I am satisfied that he did not fall due to deliberate action on his part or due to a medical condition.
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29 The plaintiff must prove that the deceased's death was caused by the defendant. As was said by Lord Robson in Richard Evans & Co Limited v Astley [1911] AC 674 at 687:
"…[the] Court must look at all the circumstances to see if they give rise to a reasonable and definite inference on the matter in question. If they give rise to conflicting inferences of equal degrees of probability, so that the choice between them is a mere matter of conjecture, then the applicant has failed to prove her case." 30 However, "If a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring": Chappel v Hart (1998) 195 CLR 232, per McHugh J at [27]. Similar observations were made in the same case by Gaudron J at [8], Gummow J at [68] and Kirby J at [93], and in Naxakis v Western General Hospital (1999) 197 CLR 269 per Gaudron J [31], Kirby J at [76] and Callinan J at [127]. Accordingly, it is necessary to consider whether some wrongful act or omission on the part of the defendant increased the deceased's risk of injury.
Was there a wrongful act or omission on the part of the defendant? 31 It is important to bear in mind that a failure to eliminate a risk that is reasonably foreseeable and preventable is not necessarily negligence: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317, per McHugh J at [99]. In that same paragraph, McHugh J went on to say: "As Mason J pointed out in [Wyong Shire Council v] Shirt (1980) 146 CLR 40 at 47 – 48 in a passage that is too often overlooked: 'The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. [emphasis added]"
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32 In Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, Kirby J said at [123]:
"The entrant is only entitled to expect the measure of care appropriate to the nature of the land or premises entered and to the relationship which exists between the entrant and the occupier. The measure of care required will take into account the different ages, capacities, sobriety and advertence of the entrants. While account must be taken of the possibility of inadvertence or negligent conduct on the part of entrants, the occupier is generally entitled to assume that most entrants will take reasonable care for their own safety." 33 Later, at [128], Kirby J said: "Insufficient attention has been paid in some of the cases, and by some of the critics, to the practical considerations which must be 'balanced out' before a breach of the duty of care may be found. … It is quite wrong to read past authority as requiring that any reasonably foreseeable risk, however remote, must in every case be guarded against. Such an approach may result from the erroneous conflation of the three separate enquiries: duty, scope of duty and breach of duty. Although a reasonably foreseeable risk may indeed give rise to a duty, it is the enquiry as to the scope of that duty in the circumstances and the response to the relevant risk by a reasonable person which dictates whether the risk must be guarded against to conform to legal obligations. Precautions need only be taken when that course is required by the standard of reasonableness." 34 There is no doubt that the defendant owed a duty of care to members of the public utilising the tip. In addition, the defendant owed a duty of care under s 5 of the Occupiers Liability Act and under s 21(1)(b) of the Occupational Safety and Health Act. 35 Section 5 of the Occupiers' Liability Act relevantly provides that: "An occupier of premises is required … to show towards a person entering on the premises in respect of dangers which are due to the state of the premises…such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger."
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36 Section 5(4) relevantly provides that:
"… consideration shall be given to – (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person 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." 37 At the time of the deceased's death, s 21(1)(b) of the Occupational Safety and Health Act relevantly provided that: 38 The defendant is entitled to assume that members of the public would take reasonable care for their own safety. However, even to a person taking such care, there was an obviously foreseeable risk of serious injury or death. 39 Even if members of the public parked their vehicles sideways to the pit, they would still need to be at the pit edge in order to drop the material over the edge. Having the vehicle positioned side-on would not prevent a person tripping over the kerbing nor being snagged by waste material and being pulled over the edge. Given that the gap was easily large enough for a person to fall through and given ordinary human experience, it was a
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dangerous situation, both in terms of the gravity of the potential injuries and the likelihood that a person would fall over the edge. 40 The danger to members of the public in depositing waste from a height at tips appears to have been a danger that has been known to the authorities and to tip operators, including the defendant, for some years. Since the Mindarie tip was opened in 1991, inspectors from the Department of Consumer & Employment Protection worked with the defendant on various proposals designed to reduce the risk to the public. 41 Mr Kevin Poynton gave evidence on behalf of the defendant. He has been the Chief Executive Officer of the Mindarie Regional Council since 1998. He said that, when he took over in that position, there was a concerted "work in progress" between the tip and WorkSafe in relation to the safety of the transfer station. Mr Poynton agreed that he knew there was a risk that people could be fatally injured from falling from the edge of the bay. He agreed he was aware of that risk prior to Mr Dinnison's death. 42 Mr Poynton said he was managing that risk using the Code Waste Management Practice and the appropriate regulations. However, the relevant code of practice at the time stated: "The operator of the transfer station should ensure the area for the public to deposit refuse is at floor level and not over the tip face. Where this is not practicable, appropriate systems of work should be developed to minimise the risk of falling from the tip face. The system must: (a) provide barriers such as concrete kerbing, guard rails or flexible steel wire ropes; (b) position barriers at varying heights to cater for different types of vehicles and trailers ….". 43 It was apparent that WorkSafe had made numerous efforts to get the defendant to improve the safety of its site. An improvement notice dated 29 October 1997 directed the defendant to carry out a risk assessment to address the risk of falling. A number of possible solutions were proposed and trialled. 44 Some proposals were found to be unworkable. Some bays had plinths in place, partly to prevent people falling over the edge. The plinths were made of steel and measured 600 millimetres
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high x 5000 millimetres wide. Mr Poynton said those plinths had been removed from the bays that were used for green waste. He said that they had received complaints which included "I can't get my trailer close enough", "when I sweep the trailer, it all goes on the ground because you've got this plinth there", and "it makes a mess." Other proposed solutions were tried, but were thought to be similarly unsatisfactory. 45 Obviously, the most foolproof method of ensuring public safety would have been to eliminate the drop. Indeed, that was required by the relevant code unless it was "not practicable". 46 After Mr Dinnison's death, the defendant commissioned a report into the accident ("the report"). Mr Poynton admitted that he knew the report concluded that the defendant had been in breach of the legislation. Mr Poynton gave evidence that the report had been in a file that he gave to his solicitors. However, it seems that the report was not discovered by the defendant and only emerged in the course of the trial. Counsel for the plaintiff submitted that the report's conclusion that the defendant had breached s 21(1)(b) of the Occupational Safety and Health Act was significant. In my view, it was not. Whether or not the defendant was in breach of those provisions requires an examination of all the circumstances and is the task of this Court. It is not the same as a factual admission that could be used against a defendant. 47 In any event, after Mr Dinnison's death, the defendant changed its system to achieve floor level deposits by members of the public. The system now involves customers placing their rubbish over a concrete wall of about a metre high. The rubbish is then taken by a loader operated by an employee of the defendant to the edge of the tip face, and then dropped into the bin. The estimated cost of the new design was $55,000. 48 Counsel for the plaintiff submitted that the fact that such a system "was implemented after the deceased's death is also evidence of non-compliance at the material time." I do not accept that submission. In my view, the relevance of this evidence is that it may tend to suggest that such a system would have been reasonably practical to implement prior to the death: Caledonian Collieries Limited v Speirs (1957) 97 CLR 202 at 224. 49 I am satisfied that such a solution was a reasonable one in all of the circumstances. I find that the defendant's failure to eliminate the risk showed "a want of reasonable care" for the safety of the members of the
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public: Tame v New South Wales; Annetts v Australian Stations Pty Ltd (supra) per McHugh J at [99]. 50 I am satisfied on the balance of probabilities that the defendant did breach its duty of care to the deceased. I am satisfied that that breach increased the risk of injury to Mr Dinnison. I am further satisfied that the breach caused the death of the deceased. 51 Counsel for the defendant submitted that the case of Thompson v City of Perth [2002] WADC 141 supported a finding against the plaintiff in this case. However, in my view, the evidence in Thompson's case was of a significantly different quality and character to the evidence in this case. In Thompson's case, the plaintiff had fallen while trying to pull out a railway sleeper from underneath the first layer of material in his trailer. The sleepers were actually protruding over the edge of the drop. In those circumstances, the learned trial Judge found that the plaintiff's own actions were the cause of his fall. In addition, there was no evidence in Thompson's case of any reasonably practical alternative which may have prevented the plaintiff's fall. Accordingly, I do not find that case to be of assistance in determining this matter.
Contributory negligence 52 There is no doubt that the pit represented an obvious danger. This gives rise to the question of whether the deceased was contributorily negligent. 53 The plaintiff's claim is brought under the Fatal Accidents Act and, pursuant to that, under the Occupiers Liability Act 1985. Accordingly, the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 applies to this claim. Under s 4 of that Act, I am required to reduce any damages to such extent as I think just in accordance with the degree of negligence attributable to the plaintiff. 54 It is well settled that the defendant has the onus of proving contributory negligence: Williams v Commissioner for Road Transport & Tramways (NSW) (1933) 50 CLR 258 at 264. 55 In Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563, Mason J said at 570: "... it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and
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prudent man, so the defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury." 56 In Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492, the court said: "The making of an apportionment as between a plaintiff and a defendant of their respective shares and responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage… It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case …" 57 In my view, those considerations are equally applicable to determining whether it is appropriate to reduce damages under the Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act. 58 In this case, there is evidence that Mr Dinnison parked the vehicle in a position whereby the rubbish would be unloaded directly off the back of the vehicle into the pit. This was contrary to the signs that directed vehicles to be parked side on. However, Neil Dinnison said that his father was guided into that position by an employee of the defendant. That evidence was not challenged. Indeed, the report states: "On arrival at the transfer station, Mr Dinnison was directed by Mr Stewart Bryen, sole staff member present, to Bay No 1 to unload. The report also states: "Statements made by witnesses at the incident scene indicate that Mr Barry Dinnison was not in breach of any of the advised Transfer Station Safe Practices prior to falling into the bin at Bay 1." 59 Neither Mr Bryen nor the "witnesses" referred to in the report were called to give evidence, but the contents of the report plainly do not detract from the conclusion that there is an absence of evidence suggesting contributory negligence on the part of the deceased.
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60 The defendant bears the burden of proving contributory negligence. I am not satisfied on the balance of probabilities that it has done so. Apart from the fact that the deceased fell into what was an obvious danger, there is no evidence of contributory negligence.
Damages 61 As was said by Windeyer J in Parker v The Commonwealthof Australia (1965) 112 CLR 295 at 307 – 308: "The damages 'should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life' … [T]he damages 'are given to compensate the recipient on a balance of gains and losses for the injuries sustained by the death' ". 62 As was noted by Gaudron, Gummow and Hayne JJ in De Sales v Ingrilli (2002) 212 CLR 338 at [66]: "To assess the pecuniary loss … it is necessary to take account of what may have happened in the future had the death not occurred and, as well, to take account of what may happen to the relatives in the future even though the death has occurred. These predictions about the 'vicissitudes of life' are 'very much a matter of speculation'. It follows that the pecuniary loss that has resulted from death cannot be calculated with accuracy. The best that can be done is to assess a sum which will, as far as the limits implicit in the task will permit, represent the value of that loss, assessed at the date of the judgment." 63 Mrs Dinnison married Mr Dinnison in 1958. She very frankly described married life as "a little bit hard going at times. I suppose there was good and bad in it really." She said that they had two periods of separation very early in the marriage, probably around the 1960's. It is also clear that there were some periods of separation when her husband was working at Aboriginal communities before she joined him. However, Mrs Dinnison said, and I accept, that she loved her husband. In all of the circumstances, the chance that they would have separated is so remote as to be speculative. In my view, it should not increase the appropriate discount for contingencies. 64 It should also be noted that there was no suggestion that Mrs Dinnison had received any pecuniary benefits arising directly from the death of her husband. While her sons have assisted her financially and
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in the provision of services, those benefits should not be taken into account in assessing the "balance of gains and losses".
Solatium 65 Counsel for the plaintiff submitted that it was open to me to make an award for solatium under the Fatal Accidents Act. Counsel for the plaintiff made a general submission that there were no binding authorities to say that solatium was not available under the Fatal Accidents Act. He explained that submission by arguing that the question of the availability of solatium had not been a matter in issue in any of the cases. Counsel for the defendant's response to that submission was simply to refer the court to par 9.5.42 of the 3rd ed of Luntz "Assessment of Damages". That appears to equate to par 9.5.40 of the current edition of that text. That paragraph asserts that solatium is not available other than in South Australia and the Northern Territory. It does not provide reasons or advance the matter any further. 66 In my view, however, it is unnecessary to search for cases in which the question may have been a matter in issue. That is because I would and should "pay close attention to the opinions on legal principle of individual justices of" the High Court: Garcia v National Australia Bank Limited (1998) 194 CLR 395, per Kirby J at [59]. 67 Counsel for the plaintiff said his submission was supported by the remarks made by Kirby J in the course of the appeal in De Sales v Ingrilli P 57/2001, transcript of 17 April 2002. It is true that in the course of that hearing Kirby J referred to "the English error assuming that all injuries must be pecuniary ….". However, his Honour also clearly accepted that the orthodox notion was that injury under the Fatal Accidents Act meant financial injury and only financial injury. He simply asked counsel for the plaintiff to identify the historical source of that notion. 68 In Public Trustee v Zoanetti (1945) 70 CLR 266 at 276, Dixon J said: "In estimating the damages to be recovered under legislation taken from Lord Campbell's Act… two rules are clearly settled. One is that what is recoverable for the benefit of the widow or other relative of the deceased is the pecuniary loss resulting from his death and that nothing may be recovered by way of solatium for the suffering that his death caused to the widow or relative."
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69 Further, counsel for the plaintiff referred the court to the High Court decision in De Sales v Ingrilli (2002) 212 CLR 338, for the purposes of illustrating the appropriate percentage discount for contingencies. However, in my view, that case is also relevant to the issue of solatium. In that case, various members of the High Court confirmed that solatium was not available under the Fatal Accidents Act (see Gleeson CJ at [11], Gaudron, Gummow and Hayne JJ at [57], McHugh J at [66], [93] - [94], Kirby J at [126] and Callinan J at [183]). It is apparent that each member of the court in De Sales (supra) was of the opinion that solatium is not compensable under the Fatal Accidents Act. Although dissenting in the result, McHugh J pointed out that at [93]:
"So pervading is the notion that 'injury' is concerned with the loss of the chance of financial support that the funeral expenses of the deceased were not recoverable by the relatives in an action under the Act until the legislature intervened in England and some Australian States." 70 McHugh J also noted at [94] that the Western Australian Law Reform Commission had stated that only recovery of economic or material loss is allowed. 71 Further, Callinan J at [183] pointed out: "That 'injury' means 'financial injury' follows not only from the earlier reference in the section to 'damages' but also, and particularly from the references in s 5 to the several, possibly beneficial, financial consequences of death for a dependant survivor which are to be disregarded for the purposes of assessing the damages. Injury has always, and rightly, been so understood in the cases, as financial injury, measured by the value of the support that would have been provided by the deceased to his or her dependants." 72 Paying "close attention" to those opinions, I have no hesitation in finding that solatium is not compensable under the Fatal Accidents Act. 73 Further, in the case of McKenna v Avior Pty Ltd [1981] WAR 255, Smith J was required to consider whether solatium was available under the Commonwealth Civil Aviation (Carriers' Liability) Act 1959. His Honour found that it wasn't. While this case dealt with a Commonwealth Act, Smith J held that the damages were to be assessed on the same principles as claims under the Fatal Accidents Act. In those
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circumstances, this decision on a matter in issue by a Supreme Court Justice is, if not binding, highly persuasive.
Loss of Earnings 74 The evidence disclosed that the deceased spent most of his adult life in various forms of fulltime employment. The tax returns for the years leading up to his death suggested that his level of income was very low. Under cross-examination, Mrs Dinnison agreed that her husband had been on the NewStart allowance at various times. However, in early 2003, Mr Dinnison decided to become a professional taxi driver. He paid just over $1,000 to the Transport & Communications Training Academy of WA and embarked on the qualification course, which involved five stages. 75 Stage 1 required the applicant to obtain a T-class licence from the Department of Transport. Stage 2 was an aptitude and ability assessment conducted by Corporate Counselling, which was engaged by the Department of Planning & Infrastructure, Taxi Unit. Stage 3, the advanced driver training course, involved a full day of theory and a half day on-road practical assessment. Stage 4, the geography assessment, involved a half-day of theory and an approximately two hour practical on-road assessment. Stage 5 was a seven day course consisting of five days of theory and two days of assessment. According to the plaintiff, the deceased was very excited about being a taxi driver and studied diligently. 76 The training manager of the Transport & Communications Training Academy, Mr Donald Sly, gave evidence on behalf of the plaintiff. He remembered Mr Dinnison and said: "He would have been an ideal taxi driver. He had good communication with people. Good people skills. Dealing with the public, he wouldn't have had a problem." 77 Mr Sly said all of the graduates of the Academy got jobs except for one who had decided he didn't want to be a taxi driver. 78 Mr Sly said that he had recommended Mr Dinnison to a private owner, Norman Leslie. Mr Sly said that he would only recommend people to private owners if the person was going to be suitable. He said that most drivers that started with Mr Leslie stayed there.
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79 Mr Sly said that age was not a problem so long as the applicant passed his or her medical. He said there was currently a 75-year-old driver.
80 Mr Sly said that approximately two per cent of applicants failed Stage 3, 10 per cent failed Stage 4 and two per cent failed Stage 5. The deceased had passed Stages 3 and 4. Mr Sly said that the deceased was in the top 10 per cent of students. 81 Mr Sly expressed the unchallenged opinion that Mr Dinnison would not have had any problems passing the fifth stage. Mr Sly was obviously qualified to express that opinion. 82 The plaintiff also called Norman Leslie, the director of Leslie's Taxis. He said that he had interviewed Mr Dinnison but couldn't actually remember Mr Dinnison or the interview. 83 He said he would have put Mr Dinnison on night-shift in Rockingham, and expected he would work six shifts a week. 84 Mr Leslie said that Mr Dinnison's age would have been "a benefit to him because the young blokes know it all and they want to tell you how to do it. Well, he's 60. I've got quite a few 60-year-old drivers working for me and he wanted to work, he wanted a job, plus I needed to put a car into Rockingham." 85 Mr Leslie said he had a number of drivers in their sixties and he also had a driver who was about 73. Mr Leslie also said "I have less trouble with older blokes. They are less liable to go and have a girlfriend or go and have a hamburger and things like this." 86 Mr Leslie said he had had three or four failures in 20 years. He explained that those drivers had failed because "They know it all. You can't tell them, well, they can't learn to be taxi drivers." 87 Mr Leslie said that a poor driver could get $600 or $700 per shift while a good driver could get up to $1,200 or $1,400 clear. Under cross-examination, Mr Leslie clarified that when he said income was "clear" that didn't take account of gas and petrol. Later again, Mr Leslie said that a night shift worker could earn between $700 and $1,400 after payment of expenses including petrol. 88 The basis of Mr Leslie's ability to estimate the earnings of taxi drivers was the subject of challenge. However, it was apparent that
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Mr Leslie had a great deal of information that would allow him to make fairly accurate assessments. Firstly, he was aware of how many kilometres the cars travelled. They were his cars. He obviously knew the price of gas and petrol. He also estimated what proportion of the income came from vouchers compared to cash, namely about 50 per cent. However, he based that estimate on the amount of cash he had seen drivers with at the end of shifts, and various conversations that he had had. Accordingly, part of the factual foundation for his opinion was based on hearsay. 89 Expert evidence that is based in part upon hearsay material may be admissible: Marinovichv The Queen (1990) 46 A Crim R 282. However, in some circumstances, such evidence is not admissible: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370. 90 Apart from the defendant's objection to the evidence of Mr Leslie on the basis that it was "completely hypothetical" as it was based on the premise that the deceased would have become a taxi-driver, neither counsel made any submissions nor cited any authorities in relation to the admissibility of this evidence. Had that evidence been critical as proof of the potential earnings of a taxi driver, then the absence of any submissions would have left me in a difficult position. 91 However, in my view, the evidence of Mr Leslie on this point is unnecessary to prove the plaintiff's claim. This is because of the evidence of Mr Sly, and the conservative amount of the plaintiff's claim under this head of damage. 92 Mr Sly said that he himself drove nightshifts on Friday and Saturday nights. The shifts were 12 hours long. He said that, after expenses he would earn on average $500-$600 per shift. 93 The plaintiff claims only $1,200 net loss per week. That is a very conservative claim in light of the evidence of Mr Sly. I have no hesitation in finding that Mr Dinnison would have earned that amount. 94 Counsel for the defendant relied heavily on of the fact that the deceased's doctor, Dr Bouverie, had certified him as fit to drive a taxi when, counsel submitted, the doctor shouldn't have. However, in my view, that is not relevant in assessing whether the deceased would have become a taxi driver. The simple fact is that the deceased obtained a medical clearance. That medical clearance would have enabled him to drive a taxi assuming he passed the fifth stage. Whether or not
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Dr Bouverie should have provided that clearance is not relevant to this issue. 95 I am satisfied that the deceased would have passed the fifth stage and would have obtained work through Mr Leslie.
To what age would the deceased have worked and contingencies 96 The plaintiff was 65 on the date of his death. However, it is clear that he intended to work for a considerable number of years as a taxi driver. He invested over $1,000 in the course, studied diligently, and had passed four of the five stages by the time of his death. He had obtained a medical clearance and had been interviewed by Mr Leslie. Further, it is clear that he and his wife wished to purchase a house in Port Kennedy and he would have needed a reasonable income in order to meet the mortgage repayments. While the house was ultimately bought by his son, the plan was for the deceased to make the mortgage repayments to his son. Accordingly, while it would usually be assumed, in the absence of evidence to the contrary, that a person would retire and cease to earn income on reaching pension age, the evidence in this case is sufficient to satisfy me that Mr Dinnison would have kept working past that age. 97 I accept that Mr Dinnison would have worked as a taxi driver for quite some time. However, I must take into account the fact that his previous work history was made up of periods of partial employment and regularly changing jobs. Mrs Dinnison thought that the longest period of time he had done a single job for was five years. Accordingly, in my view, a significant discount must be made for the chance that Mr Dinnison would not have continued to work as a taxi driver for as long as he otherwise might. 98 Counsel for the defendant submitted that the deceased would have had a reduced life expectancy or working capacity as a result of various medical conditions. There was evidence that the deceased had a history of ischemic heart disease and had recently been diagnosed with carcinoma of the prostate. However, Dr Bouverie reported that he was stable and well at the time of his death. Dr Bouverie also reported that he was of the opinion that the deceased had every opportunity of a normal life expectancy, despite the cancer, as it was at a very early stage and there was no evidence of any metastatic disease. There was also evidence that Mr Dinnison had suffered from hypercholesterol, hypertension and mild central obesity. However, there was no evidence to suggest that any of those conditions impacted on Mr Dinnison's life expectancy or working
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capacity. Mrs Dinnison said her husband's health was quite good and he did not smoke and was only a social drinker. 99 I have already found that the defendant's negligence materially contributed to the death of Mr Dinnison. In those circumstances – "it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition. … On the contrary … both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence … which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant's negligence": Purkess v Crittenden (1965) 114 CLR 164, per Barwick CJ, Kitto and Taylor JJ at 168. 100 In this case, there was no evidence which would establish what the pre-existing condition was and what its future effects were likely to be. There was not even evidence to show that there was a "real chance" that the plaintiff's medical conditions would have impacted on his life expectancy or working capacity. Any such chance is nothing more than speculative, and accordingly should not be taken into account: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. However, there is a real chance that even a 65 year old of robust health who wishes to work until 75 may be prevented from doing so by deteriorating health. Accordingly, it is appropriate to discount for that possibility. I must also allow for the chance of the death of Mrs Dinnison. 101 While I accept that not all contingencies are adverse, the deceased's work history and age requires a significant discount to be made. In my view, the appropriate discount for past loss of her husband's earnings is 30 per cent and for future loss of her husband's earnings is 50 per cent. 102 I note that in Elders v Devereaux, unreported; FCt SCt of WA; Library No 980183; 9 April 1998, the Court increased a discount of one third to 45 per cent in respect of past economic loss to take into account the chance that the plaintiff in that case would have lost his capacity for work in any event. In respect of future economic loss, the Court increased a discount of 50 per cent to 60 per cent.
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103 Counsel for the defendant raised s 11(3) of the Civil Liability Act 2002 and stated "the defendant does not believe that the plaintiff's projection of future loss of income can under any circumstances apply." However, s 11 merely sets a cap on the amount that can be claimed to, in essence, three times the average weekly earnings. Putting aside the fact that no evidence was led as to what the average weekly earnings are, I have no difficulty in surmising that they would not be less than one third of $1,200 per week. Accordingly, s 11 does not apply.
104 In her schedule of damages, the plaintiff claimed a 60/40 per cent split. In written submissions, the plaintiff claimed 65.6 per cent based on Table 9.1 from the 4th ed of Luntz's text "Assessment of Damages for Personal Injuries and Death". Counsel for the defendant said that claim was "speculative to say the least." He also referred to the well settled principle that where there is a pre-existing condition, which would have ultimately affected the plaintiff in any event, the defendant is only liable for acceleration brought about by the wrongful act. However, as noted above, there was no evidence that the pre-existing condition would have ultimately affected the plaintiff. Accordingly, this proposition is not material. Counsel for the defendant did not put forward any other reason why the percentage would be inappropriate. I am satisfied that, in this case, it is appropriate to use 65.6 per cent.
Award for loss of husband's earnings 105 Accordingly, I award – 106 For past loss from 1 April 2003 to 30 November 2005 (139 weeks): at $1,200 net per week x 139 x .656 (dependency) x .70 (30 per cent discount for contingencies) = $76,594.56 Plus three per cent interest per annum (for 2.67 years) = $6,135.22 For future loss from 1 December 2005 until 10 October 2012 (6.78 years): at $1,200 net per week x 292.05 (weekly multiplier for 6.78 years) x .656 (dependency) x .50 (50 per cent discount for contingencies) = $114,950.88
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Loss of services
107 Mrs Dinnison said that when they lived in properties that they owned, the deceased would "put his hand to anything; brick paving, building a pergola … fixing a gate, putting a gate on … anything that needed to be done virtually." 108 She said when they had lawns, he would mow the lawns every week which would take an hour or two. However, there were no lawns at the Port Kennedy house. 109 Mr Dinnison would also garden, fix dripping taps and check the reticulation. He also serviced and fixed both of their motor vehicles. Mr Dinnison said they never had to take the cars to a service station. 110 Mrs Dinnison gave evidence that her husband helped her make the bed, do the dishes and cook. She said he vacuumed the floors. She estimated he would spend about two to three hours per week working inside the house. However, her estimate was rather tentative. Mrs Dinnison also said that, with her husband's passing, there was a lot less work to be done. 111 Mr Terry Dinnison, another son of the deceased, said that he spent on average four hours a week assisting his mother around the house and in the garden. He said he hadn't done that when his father was alive. 112 Although no evidence was led of normal life expectancy, I accept that judicial notice can be taken that it would have been up to age 82. Table 6 of the Appendix to the 4th ed of Luntz's text "Assessment of Damages for Personal Injury and Death" contains a life table for Australian males for 1997-99. That table showed that a 65 year old had an expectation of 16.61 years more of life. Luntz's tables are routinely relied upon: De Sales v Ingrilli (2000) 23 WAR 417 at [86] (in relation to a dependency table). 113 Counsel for the plaintiff referred to, but did not tender, the Australian Bureau of Statistics Life Tables of 2003. Those tables show that a 65 year old male had a life expectancy of 17.6 years. Life tables were referred to by Gibbs J in Commissioner of Probate Duties (Vic) v Stocks (1976) 135 CLR 247 at 262. 114 Counsel for the plaintiff submitted that I should accept that Mr Dinnison had a life expectancy of reaching 82 years (a further 17 years from his 65th birthday). Counsel for the defendant did not make any
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submissions on this issue. In the circumstances, I do accept that Mr Dinnison had a life expectancy of reaching 82 years of age. 115 In her amended statement of claim, the plaintiff claimed for a loss of services in the past and future of two hours per week up to the year 2020 at a rate of $14 net per hour. In the plaintiff's closing submissions and schedule of damages, the claim was for three and a half hours per week at a past rate of $11.50 per hour, and a future rate of $12.30 per hour until 10 October 2020 (the date on which Mr Dinnison would have turned 82). 116 Counsel for the defendant didn't make submissions on any of these items, other than to say that the evidence was that the deceased performed only normal household duties. 117 It is significant that Mrs Dinnison conceded that, with her husband's passing, there was a lot less work to be done. In my view, it is appropriate to allow for only two hours of services, both in the past and until 10 October 2020. It is then necessary to consider the appropriate discount. Again, counsel for the defendant made no submissions on this issue. However, it seems to me that there should be some discount for contingencies even for the past loss claimed. Mr Dinnison was not a young man, and there is a real chance that his health would have deteriorated to the point that he was unable to provide those services to his wife. Accordingly, for the past loss, it is appropriate to discount that amount by ten per cent. 118 In respect of the future loss claimed, a much higher discount is appropriate. As Mr Dinnison got older, the chances that he would be unable to provide these services would steadily increase. I must also allow for the chance of the death of Mrs Dinnison. Accordingly, I would discount the future loss by 40 per cent. 119 Accordingly, I would award: For past loss from 1 April 2003 to 30 November 2005 (139 weeks) at $11.50 per hour x 2 hours per week x 139 weeks x 0.90 (10 per cent discount for contingencies) = $2,877.30. Plus interest at 3 per cent per annum (for 2.67 years) = $230.47 For the future loss from 1 December 2005 to 10 October 2020 (14.78 years) $12.30 per hour x 2 hours per week x 516.87 (weekly multiplier for 14.78 years) x 0.60 (40 per cent discount for contingencies) = $7,629.
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Special damages
120 The plaintiff paid the following amounts: • $390.50 to the Metropolitan Cemeteries Board for the funeral; • $85.80 to the Metropolitan Cemeteries Board for the preparation of the ashes for collection; • $3,101.10 for the funeral itself; • $150 for ceramic containers to put the ashes in; • $460.07 for a plaque at the Rockingham Cemetery; • $408 for the St John Ambulance; and • an undefined amount for a second plaque for a different cemetery. 121 Excluding the undefined amount for the second plaque, the total of those amounts is $4,595.47. 122 Counsel for the defendant did not challenge any of those items, other than the general denial of liability. In my view, the ambulance expenses are medical expenses recoverable under s 5(1) of the Fatal Accidents Act. The remaining expenses are properly characterised as funeral expenses and are recoverable under the same sub section: De Sales v Ingrilli (2000) 23 WAR 417 at 442 – 443 per Miller J, with whom Parker J agreed. (The appeal to the High Court did not challenge this aspect of the judgment.) 123 Accordingly, I would award the amount of $4,595.47 as special damages. 124 It is appropriate to award interest on each of those amounts from the date on which the payments were made. However, not all of the dates of payment were the subject of evidence. For those payments in relation to which there was evidence, it seems they were paid between March and August of 2003. The plaintiff claims interest at four per cent from the date of death. In my view, that is a conservative claim and I would allow that amount. Again, this was not challenged by counsel for the defendant. 125 The interest is therefore 0.04 x 2.67 x 4595.47 = $490.80.
Total award
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Future loss of husband's earnings $114,950.88 Past loss of services $ 2,877.30 Interest on past loss of services $ 230.47 Future loss of services $ 7,629.00 Special damages $ 4,595.47 Interest on special damages $ 490.80 Total award $213,503.70
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