Hodge v Barham
[2011] WADC 71
•19 MAY 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: HODGE -v- BARHAM [2011] WADC 71
CORAM: DERRICK DCJ
HEARD: 1-3 MARCH 2011
DELIVERED : 19 MAY 2011
FILE NO/S: CIV 1776 of 2009
BETWEEN: ROSEMARY ALICE HODGE
Plaintiff
AND
SUSAN BARHAM
First defendantDAVID JOHN BARHAM
Second defendant
Catchwords:
Negligence - Occupiers liability - Personal injury - Injury suffered by guest at a 21st birthday party - Alleged liability of host of birthday party and person for whom party being held - Liability denied - Assessment of damages
Legislation:
Civil Liability Act 2002 (WA)
Civil Liability Act 2002 (NSW)
Liquor Act 1982 (NSW)
Occupiers Liability Act 1985 (WA)
Result:
Judgment for plaintiff against second defendant
Total award - $373,331
Representation:
Counsel:
Plaintiff: Mr K J Bradford
First defendant : Mr G P Bourhill
Second defendant : Mr G P Bourhill
Solicitors:
Plaintiff: Bradford & Co
First defendant : Tottle Partners
Second defendant : Tottle Partners
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Brett v Rees [2008] WADC 9
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112
Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469
Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1
Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490
Derham v Insurance Commission of Western Australia [2010] WADC 12
D'Vorak v Hiscox [2008] WADC 152
Gove v Black [2006] WASC 298
Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40
Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159
Homestyle Pty Ltd v Perrozzi [2007] WASCA 16; (2007) 33 WAR 209
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kook v Caftor Pty Ltd t/as Mooseheads Bar & Café [2008] 1 ACTSC 101
Mahon v Sutherland [1971] 1 NSWLR 502
Martinez v OCS Services Pty Ltd [2009] WADC 42
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Parissis v Bourke [2004] NSWCA 373
Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180
Phillis v Daly (1988) 15 NSWLR 65
Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330
Raso v Raso [2007] WADC 53; (2007) 51 SR (WA) 1
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Ltd [2009] NSWCA 263
Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121
Schmitz v Pilpel (1988) Aust Torts Reports 80‑178
Shaw v Thomas (by his tutor Thomas) [2010] NSWCA 169
Shire of Manjimup v Cheetham [2010] WASCA 225
Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167
Watch Tower Bible Society & Tract Society of Australia v Sahas [2008] WASCA 51; (2008) 36 WAR 234
Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81‑818
West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515
Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40
DERRICK DCJ:
Introduction
On 25 March 2004 the plaintiff and her older sister went to the second defendant's 21st birthday party. The plaintiff was 17 years old at the time.
The party was held at the first defendant's house situated at 54A Broome Street in Cottesloe (the premises). The first defendant is the second defendant's mother. The second defendant was living with his mother and father at the premises at the time of the party.
The plaintiff and her sister arrived at the party at about 8.00 pm.
During the party people were inside the house on the premises and also outside in the yard of the premises. The yard of the premises was not large.
In the yard of the premises there was a small paved patio area. The patio did not have any furniture on it. The furniture that was usually on the patio had been removed for the party.
In the corner of the patio area was a disc jockey (DJ) and his music playing equipment. During the party the patio was used as a dance floor by the party guests.
At the rear of the yard of the premises, approximately 10 m away from the patio area, was a bar. The bar was manned by a barman. The party guests were able to go to the bar in order to obtain a drink.
At about 12.30 am on 26 March 2004 the second defendant, along with a number of other people, was dancing in the patio area. The plaintiff, who was either on her way to or back from the bathroom, was walking across the patio. The second defendant saw the plaintiff and took hold of her in an attempt to persuade her to dance with him. In doing so he fell onto the plaintiff. The weight of the second defendant falling onto the plaintiff caused the plaintiff to fall with the second defendant to the ground. As the plaintiff was falling she put out her right hand in an attempt to break her fall. Unfortunately her hand and wrist landed on some broken glass (the accident). The broken glass caused a laceration to the plaintiff's right wrist and significant damage to a nerve and tendons in her right hand and wrist (the injuries).
Almost immediately after the accident the plaintiff caught a taxi from the premises to hospital. She was admitted to hospital. She underwent surgical repair of her injuries later on 26 March 2004.
The plaintiff's action
The plaintiff alleges against the first defendant that she was negligent and that her negligence caused the accident and the injuries. The plaintiff also alleges against the first defendant that she, as the occupier of the premises, breached s 5 of the Occupiers Liability Act 1985 (WA) (the OLA) and that the breach caused the accident and the injuries. The plaintiff claims against the first defendant damages for loss allegedly suffered as a result of the injuries.
The plaintiff alleges against the second defendant that he was negligent and that his negligence caused the accident and the injuries. The plaintiff also claims against the second defendant damages for loss allegedly suffered as a result of the injuries.
The witnesses
There were only four witnesses called to give evidence during the trial, namely the plaintiff, the plaintiff's sister Ms Elizabeth Johnson, the first defendant and the first defendant's husband Mr John Barham. Mr Barham is the second defendant's father.
Ms Johnson was called as a witness for the plaintiff. Mr Barham was called as a witness for the first defendant and the second defendant (the defendants).
The second defendant was not called to give evidence. The first defendant and Mr Barham gave evidence that the second defendant lives and works in Melbourne and has done so for a number of years.
As part of its case the plaintiff tendered a number of expert reports without calling the writers of the reports to give evidence. This was done with the consent of the defendants.
The plaintiff's pre‑accident background
The plaintiff was born on 10 August 1986. She was born in Western Australia. The plaintiff's father is an architect. Her mother is a nurse and a part‑time artist.
The plaintiff went to high school at Methodist Ladies College in Perth. She enjoyed school. She was a high achieving student academically. She was also involved in many extracurricular sporting and artistic activities.
The plaintiff was a talented sports person. During her school years she took part in as many sports as she could fit into her schedule. She participated in swimming and diving. She played hockey and volleyball and ultimately became the captain of her school volleyball team. She was selected in the State triathlon team. She participated in athletics and was a very good high jumper. In Year 11 she was accepted into the West Australian Institute of Sport for high jump.
In Year 9 the plaintiff's passion for the arts started to develop. It was at this time that she started to think of the arts as a possible career option. She involved herself in school plays and school house plays. She also played viola and sang in the school choir. In Year 12 she was made the arts captain and play director for her house.
In Year 12 the plaintiff opted to do four base subjects for her Tertiary Entrance Examinations (TEE) and to concentrate on her artistic activities outside of her TEE studies. Her aim was to obtain high enough marks for acceptance into Curtin University's Bachelor of Arts (Fashion and Textile Design) course (the Curtin course). She wanted to become a fashion designer.
The plaintiff did well in her TEE. She was accepted into the Curtin course. Her intention, by the time she had finished her schooling, was to study for her university degree while working part time in the fashion industry. She also intended, on completion of her studies, to leave Perth for a city which had a bigger fashion design industry, such as Melbourne or London.
After finishing her Year 12 exams, and before commencing the Curtin course, the plaintiff obtained a summer holiday job in Yallingup working in a clothing store. At the end of the holiday period she returned to Perth and commenced her studies. At the same time she started working part‑time in a clothing shop in Claremont called Brutus & Moss. She worked approximately eight to 12 hours per week at Brutus & Moss. To her mind working at Brutus & Moss was a good way to 'submerge' herself in the fashion industry while studying.
The evidence as to the party
The plaintiff's evidence
The plaintiff's evidence as to the second defendant's party was as follows.
She was invited to the party as a friend of the second defendant and his sister Rebecca.
She went to the party with her older sister, Elizabeth. She drove herself and her sister to the party. She was on P plates at the time and was therefore not permitted to drink alcohol while driving. The plan was for her to drive her sister and her sister's friends home from the party.
She and her sister arrived at the party at about 8 o'clock. There were about 70 to 80 people at the party.
When she arrived at the party she spoke to the second defendant. He was already under the influence of alcohol. He was extremely affectionate and 'touchy feely'. He was 'uneasy' on his feet. His speech was affected. He became more intoxicated as the night progressed.
During the party a lot of people were crammed into the patio area of the premises. The patio had been cleared of furniture. The patio area was being used as a dance floor.
The majority of the people at the party were in the yard of the premises. The yard was quite crowded. A number of parents of people at the party were inside the house drinking at a table in the dining area. Most of the people at the party were older than her.
The first defendant and Mr Barham were mixing with people at the party.
During the party the only people that she felt comfortable talking to were her sister and some of her sister's friends. She therefore stayed close to her sister and her sister's friends for most of the night. She did not move around very much. She spent most of the evening sitting on a low limestone wall that surrounded a small pond. The pond was directly opposite the patio area and was no more than a metre away from where people were dancing.
During the evening she walked to the bar once or twice. She also went to the toilet a couple of times. However, apart from this she remained close to the pond.
On the occasions that she did leave her position near the pond the patio area was crowded. She had to push her way through the people on the patio.
The lighting in the patio area was just average outdoor lighting.
Given that the pond was right near the dancing area, people would place their drinks down near or on the limestone wall surrounding the pond so that they could dance without holding their drink.
She did not see the first defendant, Mr Barham or anyone else cleaning up during the party. She does not recall if there was any food at the party. She does not recall the first defendant offering food around at the party.
She thinks speeches were made while she was at the party, although she is not clear on this. She is not clear on who made speeches. She does not remember if the second defendant made a speech.
During the course of the party the second defendant asked her on at least two occasions, and perhaps on three or four occasions, to dance. She did not want to dance. She did not feel comfortable dancing and the second defendant was very drunk. She told the second defendant that he was drunk and that she did not want to dance.
At about 12.30 am she was either going to, or making her way back from, the bathroom in the house. She was walking across the patio. It was crowded. There were probably about 25 to 30 people in the patio area.
As she was walking across the patio the second defendant again tried to get her to dance with him. He was not acting aggressively but he physically tried to make her dance with him. She believes he took hold of her arm. She did not give any indication that she wanted to dance with him. She did not start to dance with him.
As the second defendant took hold of her he fell onto her. The next thing she knew she was falling down. She fell because the second defendant fell onto her. It was the weight of the second defendant falling onto her that caused her to fall. It was not a case of her losing her balance. The whole incident happened very quickly.
In order to break her fall she put her right hand out. As her hand hit the ground it landed on what she later found out was the stem of a wine glass.
She immediately noticed a lack of feeling in her right arm. When she looked down she saw blood. She looked up and the first face she saw was that of a Mr Drew Good who was a friend of hers. She got up and walked over to Mr Good. She showed Mr Good her hand. He took her into the kitchen and sent somebody to get her sister.
In the kitchen the people present applied ice in a tea towel to her hand and tried to stop the flow of blood. At this point Mr Barham said that she needed to get a taxi to take her to hospital. Nobody offered to take her to hospital.
Mr Good and her sister took her out the front of the premises. There was a taxi waiting outside the front of the premises. The three of them got into the taxi. The taxi took them to Sir Charles Gairdner Hospital where she was ultimately admitted and operated on for her injuries.
After the accident she did not speak to the second defendant. However, before she left the premises she did see him. He was confused and staggering and making a joke of falling over. This was the last time that she saw the second defendant.
Elizabeth Johnson's evidence
At the time of the party Ms Johnson was 23 years of age. Her evidence as to the party was as follows.
She went to the party with the plaintiff and other friends of the second defendant's older sister Rebecca. She attended the party as a guest of Rebecca. She was a good friend of Rebecca. She knew the second defendant.
She is not sure if the plaintiff drove her and her friends to the party. However, the plaintiff was at the party to drive her home.
When she first arrived at the party most of the people present were in the patio area of the premises. As the evening progressed and more people arrived people congregated both inside and outside of the house. About 80 people attended the party.
Most of the activity at the party took place in the patio area. The DJ was set up in the patio area. Dancing was taking place in the patio area.
During the party it was very crowded. It was so crowded outside that it was hard to get down the side of the house to where the bar was situated. Therefore she and others were walking through the house to get to the bar.
There were no seats in the yard for people to sit on. Some of the older people at the party were sitting inside the house. Everyone who was outside was standing or dancing.
She spent most of the evening dancing in the patio area. She also spent some time in the kitchen talking to friends.
She was drinking alcohol at the party. She would have been over the limit for driving but she was not 'falling over'.
During the evening the second defendant got quite drunk. He got quite drunk pretty early on. It was his party and he was having a good time. He was hugging people. He was slurring his words. He was a bit uncoordinated. He was unsteady on his feet. On one occasion he fell onto her when he was giving her a hug.
If people were dancing and had a glass of drink, they either held onto their glass while dancing or put their glass on the ground. There were no tables in the yard of the premises on which glasses of drink could be placed. Drinks 'got just placed wherever'. Whenever a good song came on and everyone ran to the dance floor drinks 'just got put down'.
The first defendant may have been doing a little bit of cleaning up during the party. However it was hard to 'get around to clean up' because there were so many people in a confined space.
Speeches were made at the party. She cannot remember if the second defendant made a speech.
At the time of the accident she was in the kitchen. She did not see the accident although she heard it. She looked out of the kitchen window and could see people in the courtyard leaning over where the accident had occurred. She then moved nearer to the scene of the accident. Because there were so many people crowded around where the accident had occurred she did not immediately realise that it was the plaintiff who was involved. When she discovered that it was the plaintiff she moved into the kitchen and with the first defendant started grabbing ice and tea towels and putting them on the plaintiff in an attempt to stop the bleeding.
The first defendant's evidence
The first defendant's evidence as to the party was as follows.
On 25 March 2004 she was living at the premises with her husband and the second defendant.
In order to prepare for the party she and her husband arranged for the premises to be generally cleaned up. They had someone tidy up the garden. They removed the pots, the barbeque and the furniture from the patio area. They put fairy lights up in the garden. They put a couple more spotlights at the back of the yard of the premises where the bar was to be situated.
Her husband purchased alcohol for the party from a friend's liquor store. He purchased wine, champagne and beer. She bought soft drinks and water for the party. At the end of the party there was alcohol left over.
The bar for the party was positioned down near the back wall of the yard of the premises. She and her husband hired a barman for the party. The barman was a brother of a friend of the second defendant. He was not a qualified barman.
The barman remained located behind the bar at all times during the party. He did not participate in the party. He helped with the wine. Her husband helped with the distribution of drinks as well. A lot of the boys at the party helped themselves to a beer.
There was music at the party. She cannot recall whether the music was provided by way of a jukebox or DJ. The jukebox or DJ was situated in the patio area where the barbeque ordinarily was.
She prepared quite a lot of food for the party. She would have had sausage rolls, sandwiches, cheese and hand‑around food. She also bought a large piece of beef which was cooked. After the speeches had taken place she put on the table in the dining room hot beef rolls and salad for people to help themselves. She tried to encourage people to eat. She told everyone to come and help themselves. The people at the party did not eat a lot of the beef rolls. About half of the food was left over.
She and her husband hired glasses for the party. The males at the party were probably drinking beer out of stubbies. She thinks that she and her husband hired 50 glasses for use at the party.
She cannot recall exactly how many glasses were returned to the hiring company. However, she does not think that there were many breakages. She thinks there were three or four glasses broken but she is not sure.
Relatives of her family arrived at the party at about 7.00 pm. Other guests started arriving at about 7.30 pm. Some of the younger invitees did not arrive until 8.30 pm or 9.00 pm.
She had invited and was expecting about 80 people to come to the party. She thinks that less than 80 people actually ended up attending the party.
About 14 to 16 of the attendees at the party were people of her age group. Some of these people were her relatives or relatives of younger people at the party. The majority of the people at the party were around the age of 21.
There was some mixing between the older adults and the younger adults at the party. It was not a case of older adults simply remaining in the kitchen area and dining area of the house. People did mix because the older adults were either relatives or parents of some of the second defendant's friends.
Some of the younger adults at the party spent periods of time inside the house talking to their parents and friends of their parents. However, generally speaking, the younger adults at the party remained outside.
It seemed to her that there was enough room for everybody at the party. There was the big dining room, the kitchen and the grassed area. The dining room area had been cleared. The table had been pushed right up against the wall. She had also pushed the couches back in the lounge room but people did not go into the lounge room very much.
She thinks she had met the plaintiff once before the party. She cannot remember where she had met her.
She cannot recall if there were other 17 year olds at the party in addition to the plaintiff. Most of the people at the party were around the second defendant's age. She would not have thought that there was anyone else of the plaintiff's age at the party.
She cannot remember if all of the relatives stayed at the party for the speeches. The speeches took place at about 10.00 pm. She watched the speeches. She thinks that her husband and the second defendant made speeches. However she cannot really recall this.
She thinks that it was after the speeches were made that the dancing started. She does not recall people dancing before the speeches, although they might have been.
There were a few people dancing in the dining room area, but the dancing was mostly taking place on the patio and on the grassed area in the rear yard. Most of the people who were dancing were dancing on the patio. She has no idea of how many people were dancing.
After people had finished eating she started cleaning up paper plates and dealing with the food. She was mainly in the kitchen. Her husband was picking up bottles and doing that sort of thing.
She does recall one glass getting broken during the party. She remembers this because her husband came and asked her for the dustpan and brush which he used to clean up the broken glass. This occurred near the jukebox or DJ.
She does not believe that the second defendant was drinking alcohol during the afternoon before the party. She thinks that he started drinking alcohol at around 6.30 pm to 7.00 pm when his grandparents arrived. She thinks that he was drinking beer. She thinks this because there was only beer or wine to drink and knowing the second defendant he would be more likely to drink beer than wine.
She did see the second defendant from time to time during the evening. At the start of the party he was happy and enjoying himself. However, as the night progressed he did become more intoxicated. He was getting a bit inebriated by the time of the speeches. He was not stumbling but he was 'on his way' and having a good time. By the end of the evening he was inebriated.
At no time before the accident involving the plaintiff did anything untoward happen. There were no arguments or any 'terrible drunkenness'. People were getting a bit happy and a bit drunk. However, she did not see anybody falling over or stumbling. She did not see the second defendant fall over or stumble prior to the accident. There was nothing which occurred that made her concerned for the wellbeing of the second defendant or anyone else.
During the half hour or so prior to the accident she thinks she was cleaning up. She does not recall seeing the second defendant during this time.
She and her husband had arranged for a bus to come to the party from Club Bayview in Claremont in order to take people from the party who wanted to continue on with the night to Club Bayview. She was expecting the bus to arrive at about 12.00 am but it did not arrive until about 12.30 am or 12.45 am.
She and her husband had arranged for the bus because back in 2004 it was common practice for people who attended parties to then go on to a nightclub. She thought it was 'ridiculous' for people to go from a party to a nightclub and to continue drinking through to the early hours of the morning but it was something that everyone seemed to be doing 'in those days'. She thought that arranging for the bus at least ensured that those who wanted to continue on with the night would be able to leave the party safely. She also considered that the arrival of the bus for the collection of the partygoers was a way of ending the party at a reasonable time.
She first became aware of the accident when the plaintiff came into the kitchen area bleeding. She gave the plaintiff a towel or a tea towel to wrap around the injury. Neither she nor her husband could take the plaintiff anywhere. She thinks that her husband took the plaintiff outside the front of the premises where there was a taxi, and that the plaintiff got into the taxi with her sister and another boy and went to the hospital. If a taxi had not been present she would perhaps have called the plaintiff's parents.
Fairly soon after the plaintiff had left for the hospital the Club Bayview bus arrived. It might have arrived at around the same time. The second defendant wanted to get onto the bus but her husband told him that he had had enough to drink and that he could not get on the bus. At this point the second defendant reluctantly went to bed.
If she had to have a party today for 80 people she would have it catered for. She would have the party catered for because she is now in a position to afford catering.
During the evening her husband might have got her an occasional drink. She probably had two drinks during the night.
The party was happy and easy going. There were no signs of a 'brawl or anything'.
She does not think that the second defendant was at any stage during the party unsteady on his feet. However, when the second defendant was making his way to the Club Bayview bus she thought that he was walking a bit funny. This was at about 1.00 am.
The second defendant was not the sort of drunk to throw his arms all over the place. When he is drunk he starts slurring his words and repeating himself.
She cannot remember if she arranged for any tables to be set up for people to put their drinks on. She expected a few glass breakages during the party.
Her husband was continually looking out in the backyard of the premises for bottles and glasses. She does not accept that bottles and glasses that were placed around or on the ledge of the pond area were at no stage removed.
She gave the barman instructions to pick up empty bottles and to put them in the empty boxes in which the bottles had originally been packed. There was also a green rubbish bin at the rear of the premises for empty bottles to be placed into.
The paved area running down the left hand side of the premises as one looks at the front of the premises is about 15 m long by approximately 2 m wide. The patio area is approximately 25 sqm in area. The grassed area at the rear of which the bar was situated was approximately 11 m long by 4 m wide.
After the accident her husband went and looked in the garden to see if he could find what the plaintiff had cut herself on. He could not find anything at that time. However, the next morning her husband found some glass in the mondo grass next to where the DJ or jukebox had been.
John Barham's evidence
Mr Barham's evidence as to the party was as follows.
In order to prepare for the party he and his wife cleaned the premises. They swept the patio area, moved furniture out of the way, put up a table for the bar area at the rear of the yard of the premises on the grassed area, put some floodlights over the bar area, checked all the outside lights were working, and put some fairy lights in the trees that were in the patio area. Inside the house he and his wife moved all of the dining seats out of the way to the edge of the wall. He and his wife moved the furniture because they expected that they were going to have guests both inside and outside the house. In addition, they needed to make room for any dancing that might take place later in the evening.
He was responsible for ordering the alcohol for the party. He ordered beer, wine, champagne, soft drinks and ice. The beer that he ordered for the party was a mix of full strength and half strength beer. No spirits were provided at the party.
He and his wife hired a young barman to assist with the running of the bar and the distribution of the drinks. The bar area was established so that people could get drinks from the bar and be assisted by the barman.
He hired glasses for the party so that people could drink the wine and the champagne. He does not remember exactly how many glasses he hired. He thinks it was about 50.
The glasses were subsequently returned to where they were hired from. His recollection is that there were some breakages at the party and that he returned 47 of the glasses, although he cannot be absolutely sure of this figure.
His wife prepared quite a bit of pass‑around food for the party which was distributed throughout the evening. His mother prepared sandwiches. Later in the evening there was a butt of beef and some rolls provided.
The guests starting arriving at the party at around 7.00 pm. About 60 or 70 people attended the party.
The majority of the people at the party were around the age of 21. However, there were probably about a dozen parents of some of the second defendant's friends at the party. A number of his relatives were also at the party. The older adults who attended the party left around midevening. The ages of the people at the party ranged from about 20 to 80.
The people at the party were on the grassed area between the patio and the bar, on the patio, and in the dining room area of the house. The older adults, that is, the parents and relatives, tended to congregate a little bit more inside the house. However, there was quite a bit of mixing between the various groups.
The guests spent their time drinking and socialising until about 9.30 pm or 10.00 pm. At this time some speeches were made. He made a speech. Some of the second defendant's friends made a speech. The second defendant made a speech in response. He thought that the second defendant made quite a good speech.
After the speeches were made more socialising took place. There was some dancing out on the patio and on the grassed area. There was a DJ at the party.
Prior to the party he and his wife had organised a bus to come to the premises after midnight in order to take people at the party to Club Bayview if they wished to continue on with their evening. His recollection is that the bus arrived at around 1.00 am which was when the party came to an end. Taxis were ordered for some of the other guests.
At the start of the party the second defendant was excited and looking forward to the party. He was not drinking before the party. However he started drinking when the guests began to arrive. He drank throughout the evening.
By the time of the speeches the second defendant had had a few drinks. However the second defendant was very coherent and made a good speech.
After the speeches the second defendant continued drinking. By the end of the evening the second defendant was drunk.
When the bus came at 1.00 am the second defendant attempted to join the party guests who were getting on the bus to go to Club Bayview. However, he and his wife stopped the second defendant from getting on the bus. He told the second defendant that he had had his 'fill'. He and his wife then put the second defendant to bed.
He thought that the second defendant was still reasonably steady on his feet at the time that he attempted to get on the bus. When the second defendant walked out to the bus he was not staggering. However, the second defendant was not walking in a straight line. The second defendant was drunk.
During the evening the second defendant was obviously getting affected by alcohol. The second defendant was happy and enjoying himself. He did not notice the second defendant have any particular difficulties standing up.
During the evening he was mixing with the other guests, both the older adults and the friends of the second defendant. As the host he was trying to look after them. He was trying to make sure that people had a drink and something to eat. He spent about half of his time at the party inside and the other half outside.
He in a 'general sense' did some tidying up. If he saw empty bottles he collected them and put them down behind the bar in the cardboard cartons that the beer had initially come in.
He does not have a clear recollection of coming across any broken glass, but he does recall that there were some breakages. He does recall one glass being cleaned up, but he cannot say where and when that occurred. If he had been made aware of any broken glass he would have picked it up.
His purpose in doing some cleaning up during the party was to keep the premises reasonably tidy. He did what he does at every party. He was just trying to reduce the work that he would have to do the following day. The following morning there was still obviously a great deal of evidence that there had been a party at the premises.
He and his wife did not allocate particular tasks that each other had to perform during the party. He did not carry out any cleaning or tidying up at regular intervals. He simply did so on a 'periodic' basis.
During the party the premises were crowded but he would not describe them as overcrowded. The degree of crowding at the premises was comparable to other parties that he had been to.
He did not see the accident involving the plaintiff.
The plaintiff came into the kitchen area. She had a nasty cut on her wrist. He and his wife got a towel and put it around her wrist. It was obvious that she would need to get stitches. At the time he did not realise how serious the injury was. He and his wife told the plaintiff that she would need to get a taxi to hospital. He cannot remember if he rang a taxi or if a taxi just arrived. In any event within a short time after the plaintiff had come into the kitchen she was able to get into a taxi and go to hospital.
The party was near its end at the time of the accident.
After the accident he was told that the plaintiff had fallen on some glass in one of the garden beds. He went outside to see if he could find the glass. He could not find any glass.
The following morning he went out and searched again for the glass. He found the stem of a wine glass in one of the garden beds in the patio area.
He did not take particular notice of what was occurring on the dance floor or of the second defendant's behaviour. He was aware that the second defendant was becoming more intoxicated as the evening went on. However, the first time he did anything about this was at 1.00 am when the second defendant attempted to get onto the bus. He at no stage thought that the second defendant was posing a danger to himself or anyone else.
He did not notice that the second defendant was unsteady on his feet at around 12.30 am. He did not notice at any stage the second defendant moving his arms around or being a nuisance.
Given that he was drunk, the second defendant was boisterous to a degree. The second defendant was slurring his words to some extent. The second defendant was putting his arms around his friends.
He cannot remember how much alcohol he ordered for the party. He had some alcohol left over at the end of the party. He did not place any limit on how much any of the people at the party could drink.
He does not know how many drinks the second defendant had over the night.
If he had seen the second defendant staggering he would have tried to quieten him down. He would have suggested to the second defendant that he take a break from drinking alcohol or drink some water. He would have done this to prevent the second defendant from being a danger to himself or to others.
During the party he did drink some alcohol. He was not drunk, although he would not have been able to drive.
Second defendant's failure to give evidence
The plaintiff submits that I should draw a 'Jones v Dunkel inference' as a result of the second defendant's failure to give evidence.
The decision in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 is authority for the proposition that the unexplained failure by a party to call a witness may, not must, in appropriate circumstances lead to an inference that the evidence of the uncalled witness would not have assisted the party's case. It is clear from this statement of the 'rule' that the rule does not apply if the failure to call the witness is reasonably explained. The explanation must be established by evidence: West v Government Insurance Office of NSW [1981] HCA 38; (1981) 148 CLR 62, 70.
The rule only applies where a party is 'required to explain or contradict' something: Jones v Dunkel 321 - 322; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; (2000) 200 CLR 121 [51] - [53]. Whether a party is required to explain or contradict something depends on the issues in the case as thrown up in the pleadings and by the course of the evidence. If there is no issue between the parties on the matter there is nothing to answer.
It was properly conceded by counsel for the defendants, that the fact that the second defendant lives and works in Melbourne does not provide an explanation for him not giving evidence in the trial. Accordingly, in the present case the second defendant's failure to give evidence was unexplained. In these circumstances I consider that it is appropriate for me, in any instance that the second defendant is required to explain or contradict something, to draw the inference that his evidence, if he had been called, would not have assisted his case. Counsel for the second defendant did not seek to persuade me to a contrary view.
Assessment of credibility of witnesses and material findings of fact
As is apparent from my above recital of their evidence, the material evidence given by the four witnesses called during the trial was to a large extent consistent.
My assessment of all four of the witnesses called to give evidence is that they did their best to give honest and accurate evidence about events that occurred approximately seven years ago. I did not perceive any of them to prevaricate or do anything other than attempt to answer questions in a forthright way. In my view there was nothing that any of them said that was inherently implausible or which reflected adversely on their credibility generally. Although there were slight differences between some aspects of the evidence of the plaintiff and Ms Johnson on the one hand and the first defendant and Mr Barham on the other, I do not consider that these differences were the result of a deliberate attempt on the part of any of them to tailor their evidence to suit a particular cause. The differences in their evidence, to the extent that they existed, can in my view be put down to the fact that each perceived different things at different times and that the recollections of the plaintiff and Ms Johnson have, not surprisingly, been affected by their knowledge of, and focus upon, the nature of the plaintiff's claims.
Given the nature of the plaintiff's claims and that there is a great deal of common ground between the witnesses called by each party, it is not necessary for me to expressly state every fact which I find to have been proved by the evidence adduced. However, it is necessary for me to make findings of fact in relation to a number of material issues. Accordingly, on the basis of the evidence adduced I make the following findings of fact:
1.Sixty to 70 people attended the party.
2.Most of the people at the party spent the majority of their time in the outdoor area of the premises.
3.The lighting in the outdoor area of the premises was suitable and adequate for the party.
4.The outdoor area of the premises was not large. It was at all times crowded with people but not to such an extent that there were too many people present for the space available. The degree of crowding at the party was comparable to many 21st birthday parties held at residential premises.
5.In the latter part of the evening more people at the party congregated in the area of the patio because this was where the dancing was taking place. Accordingly, at this time the patio area was particularly crowded and it was difficult to walk across the patio.
6.Alcohol consisting of full and mid strength beer, wine and champagne was made available to the party guests. Soft drinks and water were also made available.
7.The plaintiff did not drink any alcohol during the party.
8.The first defendant and Mr Barham, as the party hosts, did not attempt to place limits on the amount of alcohol consumed by people at the party.
9.The first defendant and Mr Barham made available to the party guests a more than adequate amount of food.
10.The majority of those drinking beer at the party drank directly out of the bottle. Other drinks were served in glasses that the first defendant and Mr Barham had hired for the party.
11.There were no tables placed in the outdoor area of the premises for people to put their bottles or glasses of drink on. Accordingly, bottles and glasses were put down by party guests on the ground in the outdoor area of the premises particularly in the vicinity of the patio. Bottles and glasses were also placed on the limestone wall that bordered the pond.
12.During the party the first defendant and Mr Barham did not allocate specific tasks to each other or carry out certain tasks at specified times. However, they did do some cleaning up during the party. The first defendant cleaned up any paper plates and other items associated with the consumption of food during the party. Mr Barham picked up and disposed of used bottles on an irregular basis if he noticed them while he was in the outdoor area of the premises.
13.On one occasion during the party the first defendant or Mr Barham or both were made aware of the existence of some broken glass in the outdoor area of the premises. Mr Barham cleaned up the broken glass. Apart from this occasion, neither the first defendant nor Mr Barham saw any broken glass on the ground either inside or outside the house or were made aware of the existence of any broken glass.
14.During the party and prior to the accident the second defendant had, on at least two occasions, asked the plaintiff to dance with him. The plaintiff refused to dance with the second defendant because she did not feel comfortable dancing and because she believed that the second defendant had consumed too much alcohol.
15.The second defendant drank a considerable amount of alcohol during the party. He was exhibiting signs of being under the influence of alcohol by no later than around 9.30 pm or 10.00 pm. During the hour or so leading up to, and at the time of, the accident he was intoxicated. As a result of his intoxication the second defendant was behaving in a gregarious and affectionate way to people at the party, was slurring some of his words and was sometimes unsteady on his feet. He was not, however, behaving in an offensive manner, or in a way that might be termed disorderly, or in a way that obviously posed a risk to his safety and wellbeing or the safety and wellbeing of other people at the party.
16.The accident occurred at about 12.00 am.
17.The second defendant was dancing in the patio area along with others at the time that he took hold of the plaintiff in an attempt to get her to dance with him. As the second defendant took hold of the plaintiff he lost his balance and fell onto the plaintiff which caused her to fall to the ground.
18.The second defendant's state of intoxication caused or contributed to him losing his balance at the time that he took hold of the plaintiff.
19.At the time of the accident there were the remnants of a broken glass in a garden bed on the edge of the patio. It was this glass that the plaintiff fell on to. It was this glass that caused the injuries.
20.The glass that caused the injuries was not readily visible at the time of the accident.
As is apparent from my above findings of fact I do not accept the plaintiff's evidence that the second defendant was obviously under the influence of alcohol at the time that she arrived at the party. Given that the party did not start until around 6.30 pm or 7.00 pm and that plaintiff arrived with her sister at the party at around 8.00 pm, I do not consider it likely that the second defendant was intoxicated at the time of the plaintiff's arrival. However, as is also apparent from my findings I do accept in preference to the evidence of the first defendant and Mr Barham the plaintiff's evidence that the second defendant was obviously intoxicated well before the time of the accident. It is not in dispute that the second defendant was drinking alcohol throughout the party and therefore it is reasonable to expect that he would have been intoxicated well prior to 12.00 am.
With respect to my finding that as the second defendant took hold of the plaintiff he lost his balance and fell onto the plaintiff which caused her to fall to the ground, I have inferred from the second defendant's failure to give evidence that if he had testified his evidence would not have assisted him in establishing that the cause of his fall was something other than a loss of balance on his part.
As to my finding that the second defendant's state of intoxication caused or contributed to him losing his balance, it is in my view reasonable to infer from my findings that the second defendant was dancing, taking hold of the plaintiff and intoxicated to the extent that on occasions he was unsteady on his feet, that the second defendant's intoxication was a causal factor in his loss of balance. In drawing this inference I have also inferred from the second defendant's failure to give evidence that if he had testified his evidence would not have assisted him in establishing that his loss of balance was not due solely or in part to his state of intoxication.
The plaintiff's common law negligence action against the first defendant – liability
The application and operation of the Civil Liability Act 2002 (WA)
Part 1A of the Civil Liability Act 2002 (WA) (CLA) came into operation on 1 December 2003. Part 1A includes s 5A to s 5D.
Section 5A(1) of the CLA provides, so far as is relevant, that pt 1A applies to any claim for damages for harm caused by the fault of a person. Section 3 of the CLA defines 'harm' to include personal injury. Section 3A(1) of the CLA relevantly provides that pt 1A, or some provisions of pt 1A, do not apply to specified classes of damages.
The classes of damages specified in s 3A(1) do not encompass the plaintiff's claim for damages resulting from the alleged negligence of the first defendant. The plaintiff is claiming damages for personal injury suffered after 1 December 2003. It follows that pt 1A of CLA applies to the plaintiff's negligence claim.
Section 5B of the CLA provides:
(1)[Liability for harm] A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless –
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)[Precautions against risk] In determining whether a reasonable person would have taken precautions against a risk of harm the court is to consider the following (amongst other relevant things) –
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm; and
(d)the social utility of the activity that creates the risk of harm.
The issue of whether or not s 5B of the CLA provides the test for determining if a duty of care exists has recently been the subject of discussion by members of the Court of Appeal in Department of Housing and Works v Smith [No 2] [2010] WASCA 25; (2010) 265 ALR 490 [3] - [16] (Pullin and Newnes JJA), [64] - [83] (Buss JA). However, the issue is yet to be finally determined in this State.
In my respectful opinion s 5B of the CLA does not, for the reasons expressed by Buss JA in Department of Housing and Works v Smith, modify or supplant the common law principles which determine whether a duty of care exists. Rather, s 5B relates to the issue of breach of duty of care: see also Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420 [13]. I therefore propose to approach the matter on this basis. I note in this regard that in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2][2010] WASC 45 [458] Murphy J expressed the view that he found Buss JA's reasoning in Department of Housing and Works v Smith as to the operation of s 5B of the CLA to be 'persuasive'.
Duty of care
Although not clearly pleaded in the amended statement of claim (the statement of claim), the plaintiff's case as explained by counsel at trial is that the first defendant owed to the plaintiff (and all other invitees to the party) a duty to take reasonable care to prevent injury being caused to the plaintiff by violent, quarrelsome or disorderly conduct of the second defendant. The plaintiff's case is that the first defendant owed this duty of care to her because the relationship between the first defendant as the host and controller of the party and the plaintiff as an invitee was such that a reasonable person in the first defendant's position would foresee that a failure on her part to control the conduct of the second defendant would expose the plaintiff to the risk of suffering injury of the same general character as the injury actually suffered by the plaintiff: Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, 44.
The first defendant denies that she owed the alleged duty of care to the plaintiff.
The relationship that existed between the first defendant and the plaintiff on the night of the party does not fall into a category of relationship in respect of which it has been established that a duty of care exists. The plaintiff's counsel acknowledged (as did the defendants' counsel) that there is no decision of a superior court in this country in which it has been held that the host of a private party owes a duty of care to invitees of the party to prevent injury being caused to the invitees by violent, quarrelsome or disorderly conduct of a third party. However, he submitted that the question whether a duty exists in this case should be determined 'ad hoc' and that a decision that the first defendant owed the duty as alleged will not mean that every host of every birthday party in Australia will owe a duty of care to invitees.
Given that the relationship that existed between the first defendant and the plaintiff on the night of the party does not fall into a category of relationship in respect of which it has been established that a duty of care exists, it is necessary for me to consider whether there are a sufficient number of features that are significant to the type of case under consideration, sometimes referred to as 'salient features', which combine so as to constitute a sufficiently close relationship between the plaintiff and the first defendant to give rise to the alleged duty of care. Previous decisions as to whether a particular type of relationship gives rise to a duty of care and the reasons for those decisions may provide an important guide to the determination of whether a novel type of case demonstrates sufficient salient features to warrant the imposition of a duty of care: see generally Hill v Van Erp [1997] HCA 9; (1997) 188 CLR 159, 176 179, 189, 210, 237 239; Pyrenees Shire Council v Day [1998] HCA 3; (1998) 192 CLR 330 [73] - [100], [278]; Perre v Apand Pty Ltd [1999] HCA 36; (1999) 198 CLR 180 [70] - [76], [281] - [282], [332] - [335]; Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; (1999) 200 CLR 1 [3], [71] - [73], [77] - [78], [149], [222], [270] – [274]; Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254 [60] - [61]; Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 [315] - [321]; Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 [42] - [61]; Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 [96] - [108], [268] - [272]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 [81], [99], [234] - [244]; Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16; (2004) 216 CLR 515 [16] - [18].
Depending on the type of case at hand the salient features that are often present in relationships in respect of which a duty of care has been held to exist include the following:
(1)The alleged duty related to a positive act as opposed to a mere failure to act;
(2)The harm suffered by the plaintiff was a direct result of the conduct of the defendant;
(3)The defendant assumed responsibility for preventing injury to the plaintiff;
(4)The defendant knew or ought to have known of the risk of injury to the plaintiff;
(5)The defendant had the ability to control the risk of injury to the plaintiff;
(6)The plaintiff placed reliance on the relevant conduct of the defendant;
(7)The plaintiff was vulnerable to risk of injury from the defendant's conduct, that is, the plaintiff was not able to protect him or herself from the defendant's want of reasonable care either entirely or in a way that would cast the consequences of loss on the defendant; and
(8)The plaintiff's vulnerability, if any, was the result of something done by the defendant: see, for example, Sullivan v Moody [37] [38]; Woolcock Street Investments v CDG [22] - [24], [80], [87], [106] - [113].
Ordinarily the common law does not impose a duty of care on a person to protect another from risk of harm unless that person has created or increased the risk of harm: Smith v Leurs [1945] HCA 27; (1945) 70 CLR 256, 261 262; Hargrave v Goldman [1963] HCA 56; (1963) 110 CLR 40; Mahon v Sutherland [1971] 1 NSWLR 502; Graham Barclay Oysters v Ryan [81]; Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29; (2004) 217 CLR 469 [56].
The plaintiff contends that the statements and reasoning of the High Court in Adeels Palace v Moubarak [23] - [26] support her case that the first defendant owed to her the alleged duty of care. I do not think that the decision in Adeels Palace v Moubarak does provide support for the plaintiff's case. The issue in Adeels Palace v Moubarak was whether the defendant, a licensed premises under the Liquor Act 1982 (NSW) (the Liquor Act), owed to persons attending its premises a duty of care to prevent harm of the kind suffered by the plaintiffs in that case. The provisions of the Liquor Act were central to the question of duty of care in the case: [16]. It was against the statutory background of the Liquor Act that the issue of duty of care was considered by the court: [19] - [22]. Furthermore, the duty of care which the court found that the defendant owed to the plaintiffs was consistent with, and indeed reflected, the obligations of the defendant under the Liquor Act: [25]. In the present case, the premises were obviously not licensed premises and the first defendant did not have the obligations or powers of a licensee under the Liquor Act.
I therefore turn to consider whether there were sufficient salient features which existed in the relationship between the plaintiff and the first defendant to justify the imposition on the first defendant of the duty of care alleged.
The alleged duty asserts an obligation on the part of the first defendant to perform a positive act or acts. Further, the first defendant as the controller and host of the party knew or ought to have known of the risk of injury to the plaintiff and other party guests created by any violent, quarrelsome or disorderly conduct of the second defendant. In addition, although the second defendant was 21 at the time of the party, it would appear from the ability of the first defendant and Mr Barham to prevent the second defendant getting on the Club Bayview bus that the first defendant did have some ability to exercise parental control over the conduct of the second defendant. It might therefore be said that the first defendant did to some extent have the ability to control the risk of injury to the plaintiff created by any violent, quarrelsome or disorderly conduct of the second defendant. These features support the assertion that the first defendant owed to the plaintiff the duty of care as alleged.
On the other hand, there are a number of features of the relationship between the plaintiff and the first defendant which point against the conclusion that the relationship was sufficiently close to warrant the imposition of a duty of care. The harm suffered by the plaintiff in the present case was not the direct result of any conduct on the part of the first defendant. It was the direct result of the conduct of the second defendant. The first defendant did not at any stage assume responsibility for preventing injury to the plaintiff. The plaintiff placed no reliance on any conduct of the first defendant. The plaintiff, even though she was only 17 at the time of the party, was not vulnerable to risk of injury from the first defendant's conduct or the second defendant's conduct in the sense of being unable to protect herself from any want of reasonable care on the part of the first defendant or the second defendant.
I do not consider that it can be said that the first defendant was, by supplying alcohol at the party and thus enabling the second defendant to drink to excess, responsible for creating or increasing the risk that the second defendant would cause harm to the plaintiff. The second defendant was not a teenager. He was a 21 year old man. He was responsible for his own conduct when it came to the amount of alcohol that he consumed at his birthday party in his own home: Parissis v Bourke [2004] NSWCA 373 [8].
In the circumstances I do not consider that there were sufficient salient features in the relationship between the plaintiff and the first defendant so as to justify or require the conclusion that the relationship between them was sufficiently close to give rise to a duty on the part of the first defendant to take reasonable care to prevent injury being caused to the plaintiff by violent, quarrelsome or disorderly conduct of the second defendant. I do not consider that the relationship between the plaintiff and the first defendant, such as it was, is sufficient to justify a departure from the ordinary common law position that there is no duty of care to protect another from risk of harm unless a person has created or increased the risk of harm.
It is further submitted on behalf of the defendants that at the time of the accident the plaintiff was in the very early stages of the Curtin course, and that after only a year's delay she commenced and completed the TAFE course which was substantially the same as the Curtin course and which resulted in an outcome for the plaintiff that was substantially the same to the outcome that she would have achieved if she had completed the Curtin course. It is submitted that the plaintiff's evidence regarding her progress through the WAAPA course indicates that despite the injuries and their impact on her abilities, she has been very successful in the WAAPA course and has already obtained some employment at a high level before she has finished her course. It is submitted that in these circumstances the plaintiff's past and future loss of earning capacity has not been productive of any significant financial loss. It is submitted that while the plaintiff has proved that the permanent nature of her injuries has resulted in a restriction of her earning capacity, it is not appropriate to 'calculate a figure' in respect of either past or future loss of earning capacity. It is submitted that I should instead award only a modest amount of damages for loss of earning capacity based on a global assessment.
The defendants do not assert that the plaintiff has failed to mitigate her loss.
On the basis of the evidence before me I find that if the plaintiff had not suffered the injuries she would have completed the Curtin course and, on completion, would have commenced to work as a fashion designer in 2007. I find that she would have continued to do so until the date of trial. I find that the plaintiff has done what she can since the accident to mitigate her loss arising from her past loss of earning capacity. In particular, I consider that her decision to undertake further study in the form of the WAAPA course was in the circumstances that she found herself in at the end of 2008 reasonable.
I am not satisfied that since the accident the injuries have restricted the plaintiff from obtaining part time work for any period of time beyond the end of 2004. Nor am I satisfied that during the period since 2007 the plaintiff would as a fashion designer have earned an average of $70,000 per annum. In my view as a relatively junior and inexperienced fashion designer the plaintiff's average salary during the period 2007 to the date of trial (217 weeks) would have been $50,000 per annum which represents a weekly gross wage of $962 per week and an after tax net wage of $789 per week.
Accordingly, on the basis of the above findings I calculate damages for the plaintiff's past loss of earning capacity as follows:
Amount plaintiff would have earned from part time work in 2004:
$15 per hour x 10 hours per week x 35 weeks = $5,250
Amount the plaintiff would have earned as a fashion designer from 2007 to date of trial:
$789 x 229 weeks = $180,681
Plaintiff's total net earnings since the accident:
$49,486
Loss of net earnings since the accident:
$5,520 + $180,681 - $49,486 = $136,715
Interest:
$136,715 x 4.4 years x 3% = $18,046
Total loss:
$154,761
I therefore award $154,761 in respect of the plaintiff's past loss of earning capacity.
Financial loss produced by future loss of earning capacity
The plaintiff's case in relation to the quantification of the financial loss produced by her future loss of earning capacity is based on her contention that she has lost the capacity to work as a fashion designer. The plaintiff submits that there will always be a difference between the amount that she will be able to earn working in the costume industry and the amount that she could have earned as a fashion designer, and that based on an average annual salary of $70,000 per annum as a fashion designer the difference is approximately $25,000 per annum or somewhere in the order of $400 net per week over her lifetime. The plaintiff asserts that this amount takes into account superannuation contributions. The plaintiff further submits that no deduction should be made for contingencies because there are no specific adverse contingencies in the plaintiff's case 'but more likely positive contingencies in that the plaintiff has lost the opportunity to reach the top level in fashion design and enjoy the fruits of the income that such a profession enables'. The plaintiff therefore claims damages in respect of future loss of earning capacity in the amount of $300,000 ($400 net per week x 800 (approximation of 6% weekly multiplier to age 65)). The plaintiff contends that the sum of $300,000 is a reasonable lump sum for future loss of earning capacity.
As I have already indicated, the defendants submit that the plaintiff has an entitlement to only a modest global sum for restriction of earning capacity by reason of the injuries.
Given my finding that the plaintiff now has the capacity to work as a fashion designer, I do not accept that it is appropriate to calculate damages for future loss of earning capacity by reference to the difference between what the plaintiff will be able to earn in the costume industry and what she would be able to earn as a fashion designer. Nonetheless, I think it is reasonable to conclude that the plaintiff's loss of capacity will, even if she decides to work in the fashion design industry, be productive of some financial loss. Her limitations will probably result in her earning less in the industry than she would have earned if she had not suffered the injuries either because she will not progress to the highest levels of the industry or because it will take her longer to reach those levels. In these circumstances I consider that the difference between the levels of income earned by a costumier and the levels of income earned by a fashion designer can be used as a very approximate guide in determining what financial loss the plaintiff will suffer as a result of her loss of future earning capacity.
I am not persuaded that the difference in average earnings between a senior level employee in the costume industry and a senior level employee in the fashion design industry is as large as the plaintiff submits. In my view the plaintiff, as a senior level employee in the costume industry, will be able to earn on average a salary of around $65,000 per annum. I therefore conclude that the difference between what the plaintiff will be able to earn in the costume industry and what she could have earned as a fashion designer in the absence of her hand limitations would be approximately $20,000 per annum or $355 net per week.
Given my finding that the plaintiff is not precluded from working as a fashion designer, it is clearly not appropriate to calculate damages for future loss of earning capacity by reference to $355 net per week. In my view it is appropriate to calculate the plaintiff's financial loss caused by her loss of future earning capacity by reference to a figure of approximately one‑third of this amount, that is, $115 per week. I recognise that this approach is somewhat arbitrary. However, in my view it is a less arbitrary and more preferable approach to the calculation of the plaintiff's financial loss caused by her future loss of earning capacity than simply awarding a global sum. I consider that the adoption of my preferred approach is, on the evidence before me, the most appropriate way of reflecting the fact that the plaintiff is capable of working as a fashion designer but may not reach the levels that she would otherwise have reached in the industry if she had not suffered the injuries, or may take longer to reach those levels.
As to the issue of contingencies, the four main contingencies that expose employees to the risk of loss of income are sickness, accident, unemployment and industrial disputes: Wynn v NSW Insurance Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485, 497 – 498. In this State the discount for contingencies that is usually applied to take account of these ordinary vicissitudes of life is between 5% and 10%: Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167 [2], [38], [87]. In the present case there is no evidence to suggest that the plaintiff's earning capacity is at an unusually high risk from the normal range of contingencies. In these circumstances I consider that the appropriate deduction for contingencies is 7%.
The plaintiff was born on 10 April 1986. She is therefore currently a little over 25 years of age. She can be expected to work until around age 65, a further 40 years. The 6% weekly multiplier for 40 years is 808.4.
In light of the above I calculate the financial loss which the plaintiff's future loss of earning capacity will be productive of as follows:
$115 x 808.4 x 93% = $86,458
Past loss of superannuation
In par 50 of the plaintiff's submissions it is asserted that the plaintiff is likely to have lost superannuation contributions on the calculated gross notional earnings at the rate of 9% in the approximate sum of $20,000.
In my view the appropriate discount on loss of superannuation benefits to take account of taxes, administration fees and contingencies is 15%: Raso v Raso [2007] WADC 53 [136]; (2007) 51 SR (WA) 1; Brett v Rees [2008] WADC 9 [115]; Martinez v OCS Services Pty Ltd [2009] WADC 42 [135]; Derham v Insurance Commission of Western Australia [2010] WADC 12 [325] – [329]. I therefore calculate damages for past loss of superannuation as follows:
Loss of superannuation - $962 x 229 weeks x 9% x 85% = $16,853
Interest - $16,853 x 4.4 years x 3% = $ 2,225
I therefore award $19,078 in respect of past loss of superannuation.
Future loss of superannuation
A net income of $115 per week equates to a gross weekly income of $138. I therefore calculate future loss of superannuation as follows:
$138 x 808.4 x 9% x 85% = $8,534
I therefore award $8,534 in respect of future loss of superannuation.
Past medical costs
The parties have agreed damages for past medical treatment costs at $4,000. I therefore award damages of $4,000 for past medical treatment costs.
Past travel costs
The parties have agreed damages for past costs of travelling to and from medical appointments at $2,000. I therefore award damages of $2,000 for past travel costs.
Gratuitous services
The parties have agreed damages for past gratuitous services at $8,500. I therefore award damages of $8,500 for past gratuitous services.
General damages – pain and suffering and loss of enjoyment of life
Division 2 of pt II of the CLA governs the awarding of general damages in personal injury claims of the present type. Specifically, s 9 of the CLA provides the following in relation to the calculation of damages for non‑pecuniary loss:
(1)If the amount of non‑pecuniary loss is assessed to be not more than $17,000, no damages are to be awarded for non‑pecuniary loss;
(2)If the amount of non‑pecuniary loss is assessed to be more than $17,000 but not more than $51,000, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over $17,000; and
(3)If the amount of non‑pecuniary loss is assessed to be more than $51,000 but less than $68,000 (being the sum of $51,000 and $17,000), damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as $17,000 – (amount assessed – $51,000).
Section 10A permits the court to consider other awards for non‑pecuniary loss in determining an appropriate figure for this head of damage.
In the present case there is little difference between the parties in relation to the amount that should be awarded in respect of general damages. The plaintiff claims an amount of $100,000. The defendants accept that given the seriousness of the injuries and the physical and psychological effects that they have had on the plaintiff an award in the vicinity of $90,000 is appropriate.
In my view an appropriate award for the plaintiff's pain and suffering, and loss of enjoyment of life, taking into account the relevant evidence of the plaintiff and the relevant expert medical evidence, is $90,000: Kook v Caftor Pty Ltd t/as Mooseheads Bar & Café [2008] 1 ACTSC 101.
It follows that s 9 of the CLA does not require me to reduce by any amount the award that I consider appropriate.
I therefore award damages in the amount of $90,000 for the plaintiff's non‑pecuniary loss.
Summary of award
I award the plaintiff damages as follows:
| Past loss of earning capacity | $154,761 |
| Future loss of earning capacity | $86,458 |
| Past loss of superannuation | $19,078 |
| Future loss of superannuation | $8,534 |
| Past medical treatment costs | $4,000 |
| Past travelling costs | $2,000 |
| Past gratuitous services costs | $8,500 |
| General damages | $90,000 |
| Total award | $373,331 |
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