Fantis v Abi-Mosleh
[2007] SASC 110
•29 March 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
FANTIS & ORS v ABI-MOSLEH & ANOR
[2007] SASC 110
Judgment of The Full Court
(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Layton)
29 March 2007
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Appeal from a decision of the District Court awarding plaintiffs damages for a breach of a duty to take care - plaintiffs were tenants on defendants' property - defendants were the registered proprietors of the building that contained a number of shops, including the plaintiffs’ shop, as well as a rear car park - first plaintiff tripped in car park and suffered injuries - Judge awarded damages to plaintiffs - whether the risk of tripping in the car park was obvious and so did not call for any steps to be taken on the part of the defendants to warn or protect or remedy the danger - whether there should be a greater apportionment against the plaintiff as a result of his want of care - whether award for loss of earning capacity was excessive - whether award for gratuitous services was excessive - Held: appeal dismissed - risk of tripping in car park was not obvious - damages awarded by Judge were within the appropriate range.
Wrongs Act 1936 (SA) s 17C, s 33, s 34; Civil Liability Act 1936 (SA) s 65, s 66, referred to.
Fox v Percy (2003) 214 CLR 118; Brady v Girvan Bros Pty Ltd (1998) 7 NSWLR 241; Pennington v Norris (1956) 96 CLR 10; Joslyn v Berryman (2003) 214 CLR 552 ; I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; Littler v Liverpool Corporation [1968] 2 All ER 343; Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512; Neindorf v Junkovic (2006) 222 ALR 631, considered.
FANTIS & ORS v ABI-MOSLEH & ANOR
[2007] SASC 110Full Court Bleby, Gray and Layton JJ
BLEBY J: The circumstances giving rise to this litigation are described by Gray J. I will not repeat them. I agree with Gray J that the appeal on liability should be dismissed, largely for the reasons that he gives. I merely add some further comments of my own.
It must be accepted, to borrow the words of Cumming-Bruce J, that an unsealed car park, such as this one was, is “not to be criticised by the standards of a bowling green”.[1] Some unevenness is bound to develop in the surface, along with minor erosion against concrete structures embedded in the ground. This may cause pedestrians to trip or fall. It is clear from decisions such as Brodie & Anor v Singleton Shire Council; Ghantous v Hawkesbury City Council[2] and Neindorf v Junkovic[3] that those unevennesses in themselves will not be sufficient to found liability in negligence against an occupier of land, whether it be in respect of a public footpath, as in Ghantous, or private premises, as in Neindorf. This is so particularly where there is no concealment of the difference in height and where it is plain for all to see.
[1] Littler v Liverpool Corporation [1968] 2 All ER 343 at 345. See also Brodie & Anor v Singleton Shire Council;Ghantous v Hawkesbury City Council (2001) 206 CLR 512 at 639; [2001] HCA 29 at [355], Callinan J.
[2] (2001) 206 CLR 512; [2001] HCA 29.
[3] (2006) 222 ALR 631; [2005] HCA 75.
However, all the relevant circumstances, particularly those listed in s 17C(2) of the Wrongs Act 1936 (SA),[4] must be taken into account. The sump had only recently been installed. The intention to ramp the car park surface to the level of the sump had obviously not been carried out or had not been carried out effectively. The male plaintiff’s usual course through the car park did not expose him to the western edge of the sump where he tripped.
[4] See now s 20(2), Civil Liability Act 1936 (SA).
In considering the provisions of s 17C(2) of the Wrongs Act, the trial Judge noted from photographs tendered that the difference in levels along part of the western edge of the sump was obvious. That was so when, at the time of taking the photographs, the raised portion of the western edge of the sump was in shadow. At the time when the fall occurred (late summer afternoon on a sunny day) it would not have been quite so obvious. However, as the trial Judge observed, it was only obvious in part. The left hand portion of the edge, as the plaintiff approached the sump, was more adequately ramped than the point at which the trial Judge found that the plaintiff tripped, thus presenting a false impression if only one side of the sump was in view. The danger to someone approaching the sump was therefore less obvious.
The sump was located in a public car park associated with the group of shops of which the plaintiffs’ was one. That too must be a factor relevant to the standard of care required of the occupier.[5]
[5] Brady v Girvan Bros Pty Ltd (t/as Minto Mall) (1986) 7 NSWLR 241 at 246-247, Kirby P, 254-255, McHugh JA.
Gray J has identified some simple and practical measures that could have been taken to eliminate or to warn against the danger. The question is whether it would have been reasonable for the occupier to have taken one or more of those measures – an enquiry not to be undertaken in hindsight: Neindorf v Junkovic.[6] There was always a risk that unsealed backfilling or ramping around the sump would settle or erode following installation of the sump. The taking of such measures would have been both practical and reasonable in the circumstances.
[6] (2006) 222 ALR 631 at 655-656; [2005] HCA 75 at [93], Hayne J.
As Gleeson CJ noted in Neindorf v Junkovic,[7] what is reasonable in all the circumstances is essentially a jury question on which minds may differ. No flaw in the reasoning of the trial Judge has been exposed. The conclusion of the trial Judge was open to him on the facts as presented.
[7] Ibid at 634, [10].
As to the question of the assessment of the first plaintiff’s damages, I agree with what Gray J has said and have nothing to add.
The appeal should be dismissed.
GRAY J:
This is an appeal from a decision of a Judge of the District Court awarding a plaintiff damages for a breach of a duty to take care. The appeal challenges the findings with respect to liability, contributory negligence and quantum.
Background
The first plaintiff and respondent, Issam Abi-Mosleh claimed to have sustained injury following a trip and fall on 9 January 2001. The second plaintiff and respondent, the wife of the first plaintiff, Joumana Abi-Mosleh made a claim for loss of consortium[8] as well as damages pursuant to section 34 of the Wrongs Act 1936 (SA).[9] The appeal as to quantum is only with respect to the award in favour of the first plaintiff.
[8] Section 33 Wrongs Act 1936 (SA) – now section 65 Civil Liability Act 1936 (SA).
[9] Now section 66 Civil Liability Act 1936 (SA).
The circumstances giving rise to the claim are within a narrow compass. The plaintiffs carried on the business of a fish and chip shop in an Adelaide suburb. They had done so for about three years prior to the incident, the subject of the claim. They were tenants of the defendants. The defendants were the registered proprietors of the building that contained a number of shops, including the plaintiffs’ fish and chip shop, as well as a rear car park.
Premises adjoining those occupied by the plaintiffs, also forming part of the defendants’ property, were used as a restaurant. The tenants of that business undertook plumbing work to an area forming part of the rear car park. A large sump was created and covered by a metal cover. The cover and its concrete surround were rectangular and raised to a height of about 100 millimetres above the general level of the car park. This created a need for ramping. The sump and cover were immediately adjacent to an alleyway in which a storage bin used by the plaintiffs was located.
The work involved in the installation of the sump and cover included the ramping of soil around the concrete surround so that there was a levelling of the ground from the edge of the surround to the lower ground level. The ramping was designed to create a situation where the sump and the cover did not protrude above ground level. Soil and loose rubble were used to construct the ramping.
At the time of the incident portions of the concrete surround stood proud of the adjoining soil. This exposed a portion of the concrete wall of the sump. Whether this was caused by inadequate fill, inadequate compaction or erosion is unclear. On the plaintiffs’ case, there was a danger that was partly concealed or disguised. On the defendants’ case the danger was said to be obvious.
It was the plaintiffs’ case that at the end of the working day on 9 January 2001, they were closing the business. The first plaintiff went to collect the rubbish bin – a bin on wheels – that was located in the earlier referred to alleyway. He left the fish and chip premises, went to his vehicle on the opposite or western side of the car park to check that it was secure and locked, and then went to get the bin. In the process he says he walked quickly from the car in an easterly direction and his foot caught on the protruding edge of the sump. He tripped, stumbled and fell. He lost consciousness. His wife came and found him on the ground unconscious. He “came to” whilst she was in attendance.
The second plaintiff described the position of the first plaintiff’s body as consistent with his having tripped and fallen in the way that he described in evidence. A sandal that had been dislodged was located in a position that was also consistent with the incident as described by the plaintiffs.
Issues and Findings at Trial
It was accepted by the defendants that they were responsible for the car park area and the sump and cover. It was also accepted that they owed a duty of care. The scope of that duty was in issue.
The defence case was that the first plaintiff did not trip and fall as alleged. It was said that the whole incident was a concoction. In the alternative, it was said that if the plaintiff did trip and fall as alleged, he knew the sump was there and its condition, because he regularly parked his vehicle alongside it. Counsel for the defendants contended that it was an obvious danger and one in which the scope of the duty of care owed by the defendants did not require any step to be taken. It was further contended that the car park was undulating and contained a number of areas of ground that were obviously uneven. It was said to be a generally untidy, unsealed area for the parking of cars. On the defence case, it was an area in which any person would take particular care where they walked and would be on the look out for obvious dangers and would circumvent them.
It was the plaintiffs’ case that the first plaintiff suffered a major depressive illness as a result of the incident. The defendants’ case was that the first plaintiff was a malingerer and should not be believed.
The Judge rejected the defendants’ challenge to the plaintiffs’ submissions in regard to credit. In that respect the Judge found:[10]
In my opinion, the evidence establishes that in January 2001 the First Plaintiff was in a precarious psychological state such that his fall and the associated physical injuries led quite quickly to an almost complete psychiatric collapse evidenced in the major depressive illness suspected by Dr Teh and diagnosed firstly, by Dr Champion, and, subsequently, and currently, by Dr Bem.
Consequently, and notwithstanding the criticisms made of the First Plaintiff and his evidence and his demeanour whilst giving evidence by [counsel for the defendants], I accept the general thrust of his evidence as to his circumstances as it is significantly supported by the evidence of both Dr Bem and the Second Plaintiff, which evidence I accept.
[10] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [103]-[104].
Against this background it is convenient to turn to the Judge’s findings on liability. In that respect, at the outset of his reasons, the Judge observed:[11]
[Counsel for the defendants] was extremely critical of the First Plaintiff, both as he was cross examining him, and in his final address. I shall come to those criticisms subsequently, but suffice it to say, and notwithstanding them, I am satisfied from the evidence of the Plaintiffs, and from the evidence of and the reports of various medical practitioners, that at about 7.45pm on 9 January 2001, in the rear car park of the Defendants’ premises, the First Plaintiff fell over. How and where he fell remains in issue.
The Judge then noted:[12]
The First Plaintiff first consulted Dr Teh after 9 January 2001 on 17 January 2001. On that day, Dr Teh recorded that the First Plaintiff reported that he “had a fall the week before ..... in the car park of the shop but he had no recollection of the fall .....”. The First Plaintiff said, as was noted, “sandal caught on edge”. Examination by Dr Teh revealed bruising on the right side of the First Plaintiff’s head and forehead and bruising of the left arm and right thigh.
...
When he saw various medical practitioners, the First Plaintiff remembered his fall in many different ways. The one constant was that he fell in the rear car park on this day. Because of these many variations, when compared with his initial reporting to Dr Teh, it would be unwise to do other than put those subsequent various and different descriptions aside on the basis that they are but reconstructions. I am not of the view that they possess any sinister characteristic in the context of these proceedings.
[11] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [13].
[12] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [40], [47].
Having made these observations, the Judge concluded that there was no doubt on the evidence that the first plaintiff had fallen. As he said, “how and where he fell remains in issue”. In answering this question, the Judge undertook a careful analysis of the evidence relevant to the issue. The Judge had regard to the first plaintiff’s evidence that he had tripped on the edge, to the evidence of his wife as to where she found him lying on the ground after the incident, and to the position of the sandal. The Judge had regard to the evidence of Mr Potts, a mechanical engineer, as to observations made at the scene, as to photographs that were taken and as to general industry standards. The Judge also had photographs taken by the plaintiffs shortly after the incident – within two to three weeks – depicting the scene. The Judge’s review of the totality of this evidence led to the conclusion that he was satisfied that the first plaintiff’s fall was as a consequence of the exposed and differing levels of the raised western concrete sump and its cover and the car park surface.
A review of the photographs together with other evidence allowed the Judge to conclude that there was a less than properly compacted ramp leading from the car park surface to the concrete edge of the sump and its cover. This allowed for a portion of the western concrete edge to be exposed. It was this exposure that confronted the first plaintiff as he hurried from his vehicle across the sump towards the rubbish bin. The Judge concluded that as the first plaintiff went towards the rubbish bin he stumbled on the exposed portion of the western edge of the sump and its cover, fell forward and sustained physical injuries and then later developed the serious depressive illness.
In reaching his findings, the Judge rejected the submission of counsel for the defendants that the first plaintiff had tripped on a nearby concrete path. In the Judge’s view this hypothesis was unlikely. The Judge accepted the first plaintiff’s evidence that his route on this day took him directly over the sump towards the alley. The Judge took the view that a more probable scenario was that the first plaintiff caught his right sandal on the exposed western edge of the sump and its cover, stumbled forward over the sump and cover and fell onto the concrete path.
The findings of the Judge on credit were not seriously challenged on the appeal. It was accepted that it was open to the Judge to accept the first plaintiff as to credit and to reject the defence submissions that his evidence was dishonest. There was ample evidence on which the Judge could act in reaching his conclusions as to credit. A review of the evidence discloses no basis on which an appeal court could interfere with this finding.
Once the first plaintiff was accepted as to credit, his evidence allowed the conclusion that he tripped on an exposed portion of the sump and cover. This was the clear effect of his evidence. There was a body of other evidence that confirmed that that was probably the case. The Judge accepted this evidence and was prepared to act on it. No basis has been shown to interfere with this finding.
Issues on Appeal
In Fox v Percy,[13] Gleeson CJ, Gummow and Kirby JJ summarised the approach to be taken by intermediate appellate courts:[14]
The “rehearing” does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. …
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”. On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.
This is the approach to be followed by this Court.
[13] Fox v Percy (2003) 214 CLR 118.
[14] Fox v Percy (2003) 214 CLR 118 at [22] – [23], [25] (footnotes omitted)
Liability
The substantive issue advanced by counsel for the defendants with respect to the appeal on liability was that the exposed edge of the sump and its cover was obvious and did not call for any steps to be taken on the part of the defendants to warn or protect or remedy the danger. It was submitted that the scope of the duty owed did not require any steps to be taken to prevent a person from tripping over the exposed edge. Before coming to discuss this submission in detail, it is convenient first to record the Judge’s approach and findings.
The Judge noted that it was appropriate to consider the statutory scheme applicable to occupiers’ liability. In that regard he drew attention to the terms of section 17C(2) of the Wrongs Act.
The Judge characterised the car park as having more in common with a driveway and forecourt in suburban premises to which the public may be invited than it did to a network of a municipality’s footpaths. Against this background the Judge turned to the sub paragraphs of section 17C of the Wrongs Act and made the following findings:[15]
[15] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [74].
I return to the paragraphs of s17C(2):
(a) The nature and extent of the premises:
The car park area was of generally level ground surface with which the First Plaintiff had been familiar since at least 4 April 1998. He used it regularly for the purpose of parking his car. There is no evidence that he knew of or appreciated the existence of the sump edge as a consequence of its recent insertion in the car park.
(b)The nature and extent of the danger arising from the state or condition of the premises:
The danger arose from the sump being inserted into the car park at a level in part different from the surrounding level and the failure to then ramp the adjacent car park surface so as to be level with it. That it was in part obvious is not in dispute. The concrete edge on the western side was, as can be seen in the photographs, Exhibit P5B and P5A, unevenly raised from the surrounding car park level. However, because of this difference in levels there was less “obviousness” about the variance.
(c) The circumstances in which the First Plaintiff became exposed:
The First Plaintiff became exposed as he hurried towards the rubbish bin from his parked vehicle and in doing so walked in a line across the sump. There is no reasonable basis to suggest that he might have taken another route.
(d) The age of the First Plaintiff and his ability to appreciate the danger:
The plaintiff was 58 at the time and even though he knew the sump to be there, because of the variation in the ramp levels from the car park to the western concrete edge, appreciation of the danger may readily have been missed; e.g. as he walked, the left end of the concrete edge was better and more adequately “ramped” than that directly in his path.
(e)The extent to which the occupier was aware of the danger, and the entry of persons onto the premises:
The Defendants were aware of the sump and that it was in a car park used by visiting members of the public (Photos 1-4, Exhibit P13), and by tenants in the course of their daily business. The Defendants were aware that the sump was relatively recent and should have been aware that were it not to be inserted in accordance with general practice in the industry, danger may be created by separate or varying levels. The 1995 Traffic Guide is here relevant.
(f) The measures, if any, taken to eliminate, reduce or warn of the danger:
Bollards were placed at the western edge corners of the sump. No measures were taken to ensure that the sump was uniformly level with the surrounding car park level and no warning was given of the differing levels. It does not appear that any attempt to ensure an all round level surface in the vicinity of the sump was made as is in accord with both the recommended practice and common sense.
(g)The extent, if at all, to which it would have been reasonable or practicable for the occupier to take measures to eliminate, reduce or warn against the danger:
If the occupiers had taken the single precaution of ensuring that, when complete, the surface of the car park and the edge of the sump were either contiguous or ramped in such a fashion so as to eliminate any prominent edge, then that would be sufficient. That would have, if not eliminated the danger, reduced it to almost nil. No warning was then necessary. It was not necessary to in any way alter the remainder of the car park surface.
(h) Any other matter the Court thinks relevant:
Notwithstanding that the existence of the sump was there for all to see, the varying prominence of the unramped western edge was not. This is the more so when it is appreciated that anyone crossing it may be hurrying with their mind on another object or may indeed be carrying some item to or from their parked vehicle to a shop or to the footpath at the rear of the building. There is no comfort to be had from the different coloured surfaces as to an extent they serve to disguise the height variations on the western concrete edge rather than to highlight them.
Following this discussion, the Judge concluded:[16]
The overwhelming conclusion from a consideration of the matters required by s17C(2) is that not only was it practical for the Defendants to eliminate the danger, but that it was also reasonable for them to do so.
I am satisfied that the Defendants have been shown to be in breach of the duty of care which they owed to the First Plaintiff. The injuries to the First Plaintiff flow from this breach, as does any loss he has sustained. The Defendants are also in breach in relation to the Second Plaintiff should she be able to show any loss flowing therefrom.
[16] Abi-Moslehv Fantis & Ors [2006] SADC 75 at [75]-[76].
On the hearing of the appeal specific challenge was made to only two of these findings. The first was the Judge’s conclusion - “there is no evidence that [the first plaintiff] knew of or appreciated the existence of the sump edge as a consequence of its recent insertion in the car park”. [emphasis added] As the argument developed, this challenge was abandoned. It was accepted that the observation was correct.
The other challenge related to the finding - “there is no reasonable basis to suggest that [the first plaintiff] might have taken another route”. Absent any apprehension of danger, there was no reason at all for the plaintiff to take a different route. He was moving directly from his vehicle to the bin. The obvious and direct course to follow was across the sump. There was no reason to skirt around the sump unless danger was apprehended.
In the present case, there was recent building activity that had not been completed in accordance with the general industry approach. The sump had only been installed a few months before the incident in January 2001. The Judge’s finding was that the danger was not obvious and was in fact in part disguised or camouflaged.
Counsel for the plaintiffs drew attention to photographs taken by the plaintiffs in late January 2001 and to those taken by the engineer in May 2001. The evidence disclosed that the conditions in the car park were generally the same both in January and in May. However, it would appear from the photographs that the western concrete edge of the sump may have become more exposed by May 2001.
It was the submission of counsel for the plaintiffs that at a distance it was difficult to discern that the ramping was incomplete or eroded. An examination of the photographs confirms this to be the case. Further, as the Judge pointed out, the entire western edge of the sump and cover was not exposed. Part was adequately ramped and part was not. This fact, together with differences in colour, in the Judge’s view tended to disguise or camouflage the area of concern. These observations and findings were open to the Judge.
Work had been undertaken that had left a dangerous situation with respect to the inadequately ramped sump and cover which could be easily missed being seen by a person on foot. There was, as the Judge found, a degree of disguise or camouflage. The danger was not obvious. It was a danger that was known or ought to have been known by the defendants. Simple steps could have been taken to remedy the problem. Pending remedial work to remove the danger completely, simple fencing around the sump would have prevented the incident. Equally, bollards extending to the west of the sump could have had a temporary tape strung between them and a warning sign attached. Even a simple tape between the bollards would have drawn attention to the area of concern. These simple steps were not taken. The remedial work of proper ramping was uncomplicated. It would be a simple, inexpensive task. This was evident from the photographs.
In Brady v Girvan Bros Pty Ltd,[17] the New South Wales Court of Appeal considered a negligence claim brought by a plaintiff against an occupier. The plaintiff claimed that she suffered injuries as a result of slipping on jelly on the floor of a common passage way in a shopping mall. When determining the standard of care owed by an occupier to an entrant, McHugh J considered the public nature of the premises and the fact that persons were invited into the premises for commercial purposes to be relevant:[18]
One circumstance of great importance is that the Minto Mall was a public place. The number of people who use the premises, the frequency with which spillages occur, the gravity of the danger, and the area to be supervised are also relevant circumstances in determining what standard of care is reasonably required to avoid risk of injury. Equally important in determining what reasonable care requires is the importance to the community of accident prevention. The High Court has recently stated that accident prevention is unquestionably one of the modern responsibilities of an employer: McLean v Tedman … Bankstown Foundry Pty Ltd v Braistina …. Likewise, accident prevention is one of the responsibilities of those who for reward, direct or indirect, invite or permit members of the public to attend their premises. Members of the public are entitled to expect that appropriate steps will be taken to safeguard them against danger in using public places.
Kirby P observed:[19]
The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities.
[17] Brady v Girvan Bros Pty Ltd (1998) 7 NSWLR 241.
[18] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 254
[19] Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 at 246
These were not domestic premises. It was a car park open to the public generally for commercial purposes. The fact that the car park was open generally to the public and tenants and was part of a commercial activity is a relevant consideration.
The Judge’s conclusions concerning duty, scope and breach were amply supported by the evidence. This was a case where the defendants were the proprietors of a car park used by tenants and the public generally. The sump constructed by a tenant was in an area used by the tenants and the public generally. The expert engineering evidence before the Judge established that general industry practice would in the ordinary course lead to the ramping of soil to the edge of a sump and its cover. The same would apply to other protrusions. There needed to be a generally even and flat surface around the perimeter of the cover so that the edge of the sump and its cover did not protrude and cause a danger. In the present case ramping work had been undertaken, but that work was inadequate. The Judge’s conclusions were open and appropriate.
For these reasons the appeal against the finding of liability should be rejected.
Apportionment
The Judge then turned to the question of apportionment. In that respect he reasoned:[20]
It is now necessary to consider whether the First Plaintiff has, in some way, contributed to his present circumstance. In my view, he has and there needs to be an apportionment of liability.
The First Plaintiff was, in my view, distracted from paying proper attention to the way ahead by the task at hand - namely, reaching and then putting out the rubbish bin to the rear of the shop. By such distraction, he has contributed to his fall.
The degree of departure by the Defendants from the appropriate standard of care involved a significantly greater degree of culpability than does the failure of the First Plaintiff to care for himself. Thus, the First Plaintiff is to make a lesser contribution to the loss which he has suffered. I apportion responsibility as between the First Plaintiff and the Defendants at 25% as to 75%.
Counsel for the defendants submitted that if liability was made out there should be a greater apportionment against the plaintiff as a result of his want of care.
[20] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [77]-[79].
In Pennington v Norris,[21] Dixon CJ, Webb, Fullagar and Kitto JJ explained the approach to apportionment:[22]
What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damage. It seems clear that this must of necessity involve a comparison of culpability. By “culpability” we do not mean moral blameworthiness but degree of departure from the standard of care of the reasonable man.
This approach has been recently approved by the High Court.[23]
[21] Pennington v Norris (1956) 96 CLR 10.
[22] Pennington v Norris (1956) 96 CLR 10 at 16.
[23] See Joslyn v Berryman (2003) 214 CLR 552 at [157] (Hayne J); I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at [59] (Gaudron, Gummow and Hayne JJ).
On the face of it there is nothing inappropriate about the apportionment ordered by the Judge. His observations that the defendants’ departure from the appropriate standard of care involved a significantly greater degree of culpability than the first plaintiff’s failure to take care for himself was an appropriate finding to be made. No basis has been advanced to justify any interference with the apportionment made by the Judge. The challenge to this finding should be rejected.
Quantum
As earlier observed, the Judge accepted that the plaintiffs had suffered injury and loss. In that respect the award was made in the following terms:[24]
[24] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [153]-[156].
First Plaintiff
Past non economic loss $ 40,000.00
Interest $ 2,750.00Past Economic Loss $ 66,000.00
Interest $ 11,500.00Future Economic Loss $ 15,000.00
Past Medical Expenses $ 15,128.00
Interest $ 2,600.00
Future Medical Expenses $ 15,000.00
Past Gratuitous Assistance $ 42,500.00
Interest $ 7,500.00
Future Gratuitous Services $ 75,000.00
$ 292,978.00Second Plaintiff:
Consortium $ 7,500.00
S34 Wrongs Act $ 500.00
$ 8,000.00Each of these awards is to be reduced by the contributory negligence of the First Plaintiff, which I have assessed at 25%.
There will be judgment for the First Plaintiff in the sum of $219,733.50, inclusive of interest.
There will be judgment for the Second Plaintiff in the sum of $6,000.00, inclusive of interest.
On appeal, the complaints advanced concerned the awards in respect of loss of earning capacity and for the need for gratuitous services.
Before coming to discuss the matters of complaint, it is convenient to record the relevant findings made by the Judge.
Differences of opinion were expressed by medical experts giving testimony at the trial. Relevantly, the Judge accepted the first plaintiff’s treating psychiatrist, Dr Bem. In that respect the Judge observed:[25]
Dr Bem has been treating the First Plaintiff since February 2003 and sees him each four to six weeks. Dr Teh referred the First Plaintiff to the psychiatrist, Dr Champion, in April 2001. He then saw the First Plaintiff on a regular basis until he left for overseas. He then referred him to Dr Bem.
It is Dr Bem’s view that the First Plaintiff has been in the grip of a major depressive illness for five years, and, having been treated with varying types and doses of relevant medication in that time on a continuing basis, will remain so for the foreseeable future. He allows for not more than about a 20% improvement once the stressor of these proceedings is removed. He maintains this view on the basis that there is no ongoing diagnosable organic cause for the pain from which the First Plaintiff claims to suffer.
Dr Bem attributes this to the collapse of the First Plaintiff’s psychiatric state brought about by the fall. Prior to that time, in his view, the First Plaintiff was fragile in this sense. Dr Bem attributes this fragility to the First Plaintiff’s life experiences since he arrived in Australia. Initially, he was not able to work in his chosen field which was intellectual or academic rather than manual. It became necessary for the First Plaintiff to undertake the unskilled and relentless work of a shopkeeper to provide for his family. He did this from almost as soon as he arrived in Australia and augmented that income by working in the taxi industry for some years before January 2001. In the course of his taxi driving, he was assaulted and robbed at least twice. His shop has also been robbed.
By January 2001, the First Plaintiff, whilst surviving in an economic sense, was not where he had seen himself as being in the community had he been able to use his Lebanese university training. Thus, when he fell and sustained some physical injury to his head, face, teeth, body and knees, he likely let go in the relevant psychological sense.
[25] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [83]-[86].
The first plaintiff’s account was summarised by the Judge as follows:[26]
The First Plaintiff’s explanation for his condition on those occasions was that, because of the stressful nature of attending for such a purpose, he had had a full dose of medication for both pain and anxiety and what was seen was the result. The list of his then current medications, in an approximate sense, is in Exhibit D10. No medical witness who was asked to comment on this list and its likely effect in combination upon the First Plaintiff, said other than it was likely to have an effect upon how he appeared and how he presented. Whilst subjective, and perhaps of little weight, the First Plaintiff described his psychological state in much the same way as Dr Bem.
[26] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [89].
The first plaintiff’s wife’s account was accepted by the Judge and included the following:[27]
The Second Plaintiff gave a like description of ongoing pain and illness and discomfort such as to affect family life in a significant way. I had the clear impression, bearing in mind the age difference between the First Plaintiff and the Second Plaintiff, that she stayed in the marriage principally as a cultural obligation and, to a lesser extent, for her children. The First Plaintiff is now almost totally dependent on her in matters ranging from dressing (choosing his clothes) to the correct taking of medication and to preparing food.
The Judge concluded:[28]
All of these matters are products of Dr Bem’s diagnosis and in his view will remain, even if there is the post action improvement to some extent, because the First Plaintiff has been in the sick role for so many years.
[27] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [90].
[28] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [91].
The Judge then reached the following findings:[29]
In my opinion, the evidence establishes that in January 2001 the First Plaintiff was in a precarious psychological state such that his fall and the associated physical injuries led quite quickly to an almost complete psychiatric collapse evidenced in the major depressive illness suspected by Dr Teh and diagnosed firstly, by Dr Champion, and, subsequently, and currently, by Dr Bem.
Consequently, and notwithstanding the criticisms made of the First Plaintiff and his evidence and his demeanour whilst giving evidence by Mr Stratford, I accept the general thrust of his evidence as to his circumstances as it is significantly supported by the evidence of both Dr Bem and the Second Plaintiff, which evidence I accept.
As a consequence of this illness, the First Plaintiff was required to give up his taxi driving by Dr Champion soon after his first consultation. As a consequence of this trial, Dr Bem has advised the relevant authority that the First Plaintiff should no longer have a driving licence. I shall proceed on the basis that he is, henceforth, unable to drive and will be totally reliant upon his wife and, to a lesser degree, his daughter and perhaps friends, in this regard.
An assessment of the First Plaintiff’s pain and suffering, both past and future, must, of necessity, be broadly based and have regard to real organic discomfort for a short time only after January 2001. Even though there is no real challenge to the finding by Dr Middleton in July 2005 that there was limited ongoing physical damage from the fall, there is no doubt from the evidence of Dr Teh and each Plaintiff that there were physical injuries and a degree of unconsciousness involved.
[29] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [103]-[106].
The first plaintiff developed hearing loss which led to operative intervention. In that respect the Judge concluded:[30]
There is now hearing loss which necessitates the wearing of hearing aids. Complaints about hearing loss led to operative intervention by Dr Frayne on two occasions following testing which revealed marked bilateral sensori neural deafness in October 2001. This deafness is now permanent and has been so since 2002. Dr Frayne’s view was that this, and the dizziness or benign positional vertigo, were brought on by the same trauma. I accept his opinion and am satisfied that that trauma was the fall of 9 January 2001.
The Judge then summarised the first plaintiff’s injuries as follows:[31]
So, in all, the First Plaintiff has the ongoing physical difficulty of deafness in association with a major depressive disorder and a pain disorder. As a consequence, his lifestyle is significantly different from what it would have been had he and his wife remained shopkeepers and he a taxi driver. He has lost the capacity for social intercourse. He no longer is able to read and no longer is able to enjoy listening to music. His relationship with his wife is now such that she covers for him in all regards. There is no normal marital relationship. He is socially avoidant, irritable and demanding.
[30] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [111].
[31] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [113].
In respect of loss of earning incapacity the Judge, in a careful assessment, estimated the past loss from the first plaintiff’s inability to engage in taxi driving at $75,000. This award included interest. The Judge concluded:[32]
There is no reason to assume that the First Plaintiff would not have continued to drive taxis had he not fallen. It was plain from his evidence that he enjoyed the work and that he did it at his pace. From 1 July 2001 until judgment, his loss is ($284.00 x 52 weeks x 5 years) $73,840.00. I should make an allowance for earnings had he not given up his licence when directed by Dr Champion a few weeks before the end of the tax year. I fix the First Plaintiff’s past economic loss from taxi driving at $75,000.00.
Income tax is fixed by law. The relevant rate for his annual earnings is 16.5%. This is to be deducted. Without any degree of absolute arithmetic precision, I assess the First Plaintiff’s past economic loss at $66,000.00.
Interest on this sum in accordance with the average rate from the Third Schedule over the period from January 2001 until judgment must be discounted to reflect the slow aggregation of the loss. Having done so, I allow interest in the sum of $11,500.00.
[32] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [127]-[129].
Given the medical opinion that he was unfit to be a taxi driver and should not hold a driving licence at all and given his poor prospects of finding other employment, this award was fully justified.
The Judge with respect to future loss of earning capacity awarded $15,000.00. He reached the following conclusions:[33]
The First Plaintiff’s future earnings may be calculated on a like basis. There is no reason to infer that he otherwise would not have continued as a taxi driver for the same number of days per week and earned a similar income. There is no evidence of any increase in taxi charge rates since 2001. There is no need to assume that the First Plaintiff would not have continued until at least he reached 65 years of age. He may have gone further, but I think it unlikely in all of the circumstances of his life.
I therefore use the actuarial certificate (Exhibit P21) for this purpose. The lump sum is $284.00, the multiplier is 83, giving $23,572.00. Allowing for the contingencies of life generally, and to reflect the First Plaintiff’s predisposition to a psychiatric illness, I fix this figure at $15,000.00. No interest is payable on this sum.
[33] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [130]-[131].
The approach of the Judge given the findings he had made about the first plaintiff’s ongoing depressive illness was entirely reasonable. No basis has been shown for interfering with either of the awards for past or future loss of earning capacity.
Turning to the issue of gratuitous services, the Judge made the following specific findings:[34]
I accept the evidence of the Second Plaintiff that the needs of the First Plaintiff have increased over time and particularly so in the most recent one to two years. It is now necessary for her to care for his medication several times each day (in a preparatory and supervisory sense), to cook for him rather than they assisting each other in the kitchen, to supervise his choice of clothing and dressing and to provide for him when he calls. Whilst she has driven him to appointments and the like in this period it is apparent from the evidence that the First Plaintiff frequently drove himself. Thus, this topic is less important in this category than in the future in the expectation that henceforth he will be unable to drive at all.
The care given to the First Plaintiff by his wife has increased in an incremental fashion since about the time he was referred to Dr Champion. I have taken as much from the evidence of the Second Plaintiff as to how the First Plaintiff began emotionally to deteriorate a few months after his fall and how that deterioration has peaked in recent years, as I have mentioned.
I am satisfied that the Second Plaintiff spent about an hour per day attending her husband. Whilst the time required may have fluctuated over years and between weeks, I am unable to be satisfied that it significantly increased before about January 2005. From that time I accept her evidence as to what it is now necessary for her to do to care for, and be of service to, the First Plaintiff, and that she spends about three hours each day in so doing.
[34] Abi-Mosleh & Abi-Mosleh v Fantis & Ors [2006] SADC 75 at [138]-[140].
Counsel for the defendants complained that the Judge failed to make allowance when assessing the future award for gratuitous services for the plaintiff’s fragile pre-incident psychiatric state, for the fact that notwithstanding advice to the contrary, he still drove and, because of what was said to be exaggerations about the effects of his condition. In respect of the claim concerning exaggerations, this submission should be rejected. The Judge accepted the first plaintiff’s account and the suggested exaggerations relating to attempted suicides were the subject of evidence and confirmatory evidence.
The Judge when assessing the award for future gratuitous services accepted the first plaintiff’s wife’s evidence that she spent three hours per day caring for her husband in his depressed state, noted the consequence of the application of an actuarial multiplier and then discounted that notional figure by two thirds to arrive at the award of $75,000. Again, given the findings of the Judge, supported by the evidence, this assessment was reasonable. A reduction of two thirds adequately took into account the significant negative contingencies. This ground of complaint should be rejected.
Although the defendants’ notice of appeal challenged other aspects of damages, on the hearing of the appeal contentions were confined to complaints about the allowances for earning capacity and the need for gratuitous services. In any event, the overall award of damages could not be said to be manifestly excessive.
For the foregoing reasons I would reject the complaints in regard to the damages awarded by the trial Judge.
Conclusion
I would dismiss this appeal.
LAYTON J: I would dismiss the appeal. I agree with the reasons given by Gray J. I also agree with the reasons given by Bleby J.
0
10
1