Howard v Holdaway
[2023] ACTMC 26
•1 August 2023
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Howard v Holdaway |
Citation: | [2023] ACTMC 26 |
Hearing Dates: | 30 and 31 March 2023 |
Decision Date: | 1 August 2023 |
Before: | Magistrate Temby |
Decision: | (1) Judgment be entered for the Defendant. (2) The Plaintiff is to pay the Defendant’s costs of the proceedings. (3) Order 2 does not take effect for a period of seven days and, if within that period, either party makes an application for a different order, order 2 does not take effect until further order of the Court. |
Catchwords: | TORTS – NEGLIGENCE – Breach of duty – injury sustained opening sash window– breach of duty of care alleged – evidence does not establish Defendant knew or ought to have known of the risk of harm – breach of duty not established on the evidence |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 42, 43, 44, 45, 46, 99, 102, 168 Court Procedures Rules 2006 (ACT) r 1721 |
Cases Cited: | Cornwall v Jenkins as trustee for iSpin Family Trust [2019] ACTSC 34 Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33 Jones v Barlett [2000] HCA 56; (2000) 205 CLR 166 King v Stewart [1994] NSWCA 164 Limelight Cinemas Pty Ltd v Beatty [2018] ACTSC 18 Mcintosh v Canberra Choral Society [2022] ACTMC 16 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Atherden v Caldipp [2019] ACTSC 29 Primavera Holdings Pty Ltd v Golding [2018] ACTCA 30 Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 Short v Barrett [1990] NSWCA 164 Stannus v Graham (1994) Aust Torts Reports 81-293 |
Parties: | Kerry Howard ( Plaintiff) Edward Holdaway ( Respondent) |
Representation: | Counsel D Shillington ( Plaintiff) B Jones ( Defendant) |
| Solicitors Bradley Allen Love Lawyers ( Plaintiff) Moray & Agnew Lawyers ( Defendant) | |
File Number: | CS 46 of 2021 |
MAGISTRATE TEMBY:
Table of Contents
Introduction
The claim
Summary
Legislation
The Incident
The Plaintiff’s evidence
Defendant’s evidence
Expert evidence
Findings
Liability
Plaintiff’s evidence
Defendant’s evidence
Evidence of Andrew Holdaway
Observations in relation to the Defendant’s evidence
Findings
Application of facts to relevant provisions of the Wrongs Act
Conclusion
Contingent consideration of causation and contributory negligence
Causation
Contributory negligence
Contingent assessment of damages
Documentary evidence
Plaintiff’s evidence
Observations in relation to the Plaintiff’s evidence
Findings
Damages assessment
General damages
Loss of earnings/earning capacity
Out of pocket expenses
Domestic assistance
Summary of damages assessment
Costs
Orders
Introduction
1․Ms Howard, the Plaintiff, and Mr Holdaway, the Defendant, were friends.
2․On 28 July 2020, they agreed that the Plaintiff would stay in the Defendant’s bedroom in his house in Red Hill, ACT, whilst he travelled interstate to Queensland. The Plaintiff was having renovations undertaken at her house at this time. The defendant had four other people living at his house, whom he described as boarders.
3․The Plaintiff was to move in the next day, 29 July 2020. At around lunch time on 29 July 2020, she attended the Defendant’s house to drop off some of her belongings. She unlatched the west-facing sash window in the Defendant’s bedroom (the window) and the top sash suddenly fell, impacting the Plaintiff’s hands (the Incident).
4․The Plaintiff’s right hand was trapped between the upper and lower sashes of the window until emergency services were able to release her hand. The Plaintiff sustained a laceration and swelling of her right index finger, a laceration of the left index finger, as well as a fracture, and pain and swelling, in her left ring finger. She underwent surgery which involved two K-wires being inserted into her left ring finger. The Plaintiff also had a debridement and repair of the lacerations to the left and right index fingers.
The claim
5․On 31 March 2021, the Plaintiff commenced proceedings against the Defendant, seeking damages for alleged negligence on the part of the Defendant. In general terms, the Plaintiff alleges that:
(a)the upper sash in the window fell because the mechanism that balanced the weight of the window sashes (the balancing mechanism) was damaged;
(b)the Defendant knew, or ought to have known, that the balancing mechanism was damaged;
(c)the Defendant failed to take reasonable precautions for the safety of the Plaintiff while she occupied the Defendant’s house, including by failing to undertake an assessment of the risks to the Plaintiff’s health associated with her occupation of the Defendant’s bedroom and by failing to warn her of the danger posed by the window; and
(d)the Plaintiff suffered damage, including and arising from the injuries to her hands noted above, as a result of the Defendant’s negligence.
6․The Defendant’s position is that he did not know that the balancing mechanism was defective, and that there was no reason why he ought to have known of the defect as he did not use the window. The Defendant says that the duty of care that he owed the Plaintiff did not extend to conducting an assessment of his bedroom before permitting the Plaintiff to use it. The Defendant further says that, in any case, he requested that the Plaintiff not open the window because he did not want any insects or spiders getting into the room.
Summary
7․I am not satisfied that the Defendant breached the duty of care he owed to the Plaintiff because I am not satisfied that the risk of harm which eventuated was foreseeable for the purposes of s 43(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act). In particular:
(a)I am not satisfied that the Defendant was aware that the balancing mechanism in the window was defective; and
(b)I am not satisfied that the Defendant ought to have been aware that the balancing mechanism was defective. In this respect, I am not satisfied that there were any facts within the Defendant’s knowledge that should have alerted him to any fault in the window and I do not consider that he was under an obligation to undertake any investigation or inspection of his room, that would have revealed the defect in the balancing mechanism, prior to the Plaintiff’s stay.
8․Accordingly, the Plaintiff has not succeeded in establishing her claim.
Legislation
9․The following provisions of the Wrongs Act are to be applied in the determination of the Plaintiff’s claim.
168Liability of occupiers
(1)An occupier of premises owes a duty to take all care that is reasonable in the circumstances to ensure that anyone on the premises does not suffer injury or damage because of—
(a)the state of the premises; or
(b)things done or omitted to be done about the state of the premises.
(2)Without limiting subsection (1), in deciding whether the duty of care has been discharged consideration must be given to the following:
(a) the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge the occupier has or should have about the likelihood of people or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger;
(g)the burden on the occupier of removing the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
(3)Part 7.1 (Damages for personal injuries—exclusions and limitations) and part 7.3 (Contributory negligence), other than section 102 (2), apply in relation to a claim brought by a person against an occupier of premises in relation to injury or damage.
(4)This section replaces the common law rules about the standard of care an occupier of premises must show to people entering on the premises in relation to any dangers to them.
(5)This section does not affect—
(a) other common law rules about the liability of occupiers to people entering on their premises; or
(b)any obligation an occupier of premises has under another Act or any statutory instrument or contract.
(6)In this section:
“occupier”, of premises, includes the lessor of premises let under a tenancy who —
(a) is under an obligation to the tenant to maintain or repair the premises; or
(b)could exercise a right to enter the premises to carry out maintenance or repairs.
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the Incident out of which the harm arose.
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity creating the risk of harm.
44Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b)the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c)the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.
46Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
102Apportionment of liability—contributory negligence
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong—
(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b)the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
The Incident
The Plaintiff’s evidence
10․The Plaintiff gave evidence that, on 29 July 2020, she left work in the middle of the day to collect some personal items from her house and took them to the Defendant’s house. When she entered the Defendant’s bedroom, she noticed a musty smell, so she opened the windows. She started with the front window, and then opened the western-facing window.
11․She recalled that the window had a latch which she turned clockwise with her right index finger. The window was a sash window and her left hand was resting on the lower sash.
12․The Plaintiff said that the latch moved freely when she moved it. She said, once she unlocked the latch, that the top sash immediately fell down, impacting her left hand (particularly her ring finger and index finger) and trapping her right hand between the top and bottom sashes. The top sash fell down directly behind the front sash (from the Plaintiff’s perspective, standing inside the bedroom).
13․It was suggested to the Plaintiff in cross-examination that, if she moved the latch with her right hand, in the way she described doing, the upper sash window would not have come into contact with her right hand, given that the upper sash fell behind the lower sash. She was reluctant to accept that proposition but, when asked whether she recalled reaching out to try to catch the upper sash window, she conceded that she ‘may have reacted in a startled way and pushed my hands forward’. Nevertheless, she did not agree that she tried to catch the upper sash window.
Defendant’s evidence
14․The Defendant gave evidence that, prior to the Incident, he did not understand the technicalities as to how a sash window operates, but he did make inquiries subsequently. The Defendant said that:
(a)he “vaguely” recalled seeing something in the leaves, five or six years earlier, which may have been a metal rod but he was not sure what it was; and
(b)informed by his research, he looked for a metal rod outside his bedroom window on his return from Queensland, and found two metal rods.
15․In cross-examination, the Defendant said that the thing that he had seen years previously, which may have been a rod from the window, was one to three metres from the window. He said that he was not curious as to where it may have come from and that he never carried out an inspection of the window.
16․This evidence reflects the explanations that the Defendant gave to the Plaintiff in a text message the Defendant sent to the Plaintiff on 23 October 2022 and in an email he sent to her on 11 November 2020. In the email, the Defendant:
(a)noted that he told the Plaintiff, following the Incident, that years previously he had noticed a metal rod lying on the ground near the window when dealing with a redback spider nest in the bushes next to the window and that he thought, when speaking to the Plaintiff subsequent to the Incident, that the rod could have been from the window spring mechanism;
(b)stated that, when he returned from Queensland, he noticed two rods on the ground near the window, with one covered in rust and the other not (a photo of which the Defendant included in his email); and
(c)hypothesised that one of the two spring mechanisms in the window failed some time ago and the second spring mechanism failed when the Plaintiff opened the window.
Expert evidence
17․The Plaintiff engaged Mr Tarek El-Ansary, a structural engineer, to prepare a report in relation to the window. Subject to a limited number of objections, I received his report (dated 15 September 2022) as expert opinion evidence.
18․Mr El-Ansary’s report states that:
(a)double-hung sash windows operate vertically so that, without a counter-balance, the upper sash would fall to the bottom of the frame;
(b)there are several types of window balances. One example is a spiral balance. Spiral window balances are composed of a spiral rod and spring housed within a metal or plastic tube. As a sash is lifted, the balances help to push the window up, reducing the amount of weight the user feels and the strength required to open the window;
(c)spiral balances lose tension progressively over time with use. There would be a commensurate deterioration in function, and the sub-optimal movement of the sash would become more cumbersome gradually;
(d)the probability of losing the spiral balance on one side would likely have prompted the overload of the other side through skewing and asymmetric forces. This would have been a slow and creeping effect;
(e)the top sash weighs approximately 16kg;
(f)at the time of inspection, both the spiral balances were absent from their tubular plastic housings. The loss of both the spiral balance rods meant that there was no counter-balance and any further use of the window would necessitate propping open the upper sash with something like a stick. A user would need to lift the full 16kg top sash in order to secure it with the sash lock;
(g)the upper sash fell because the spiral balances were non-existent. The plastic tubes that house the spiral rods and springs appeared to have detached at the bottom at some point, resulting in the ejection of the rods to the exterior of the window. One of the spiral rods was photographed by the Plaintiff laying on its side in the garden bed beneath the window (Photograph 8 attached to Mr El-Ansary’s report). Once the sash lock was released, there was no resistance to the self-weight of the upper sash; and
(h)the approximate cost to repair the sash window is $300.
19․I note that Photograph 7 attached to Mr El-Ansary’s report is a close-up of the sash lock. It is clear, from looking at that photograph, that:
(a)the sash lock is fixed to the top of the lower sash;
(b)unlatching the lock required the user to swivel the lock anti-clockwise; and
(c)someone opening the lock would necessarily have had their hands in front of the upper sash (that is, on the inside of the window) given the configuration of the window.
Findings
20․Subject to one minor matter, I accept the parties’ evidence, and the evidence of Mr El-Ansary, in relation to the circumstances of the Incident and the window. From their evidence, I consider that the following findings of fact can be made on the balance of probabilities.
21․The Plaintiff attended the Defendant’s house on 29 July 2020. She opened the window on the western side of the Defendant’s bedroom by using her right hand to turn the latch anti-clockwise (it is clear from the photos attached to the expert report that the Plaintiff was mistaken in her recollection that she turned the latch clockwise). Her left hand was resting on the lower sash, which was positioned closer to the Plaintiff than the vertical line of the upper sash.
22․The window was a double-hung sash window. It utilised spiral balances to provide a counter-balance for the upper sash.
23․At some point prior to the day of the Incident, likely some years prior (given the condition of the rod as shown in the pictures taken of it by the Defendant and the evidence of the Defendant as to him having seen a metal rod on the ground outside the window a number of years earlier), the window lost one of the spiral rods. This resulted in the spiral balance on the other side being overloaded, which gradually resulted in the deterioration of that spiral balance.
24․At a more recent point in time, most likely at the time the Plaintiff opened the window latch, the remaining spiral came free from the window. In this respect I note that:
(a)the photo taken of the rods by the Defendant shows one of the rods being obviously more weathered than the other, which indicates that the rods had not fallen out of the window at the same time;
(b)the likelihood that the second rod fell out when the Plaintiff opened the window is supported by the fact that the Plaintiff said that she could open the latch without difficulty. If both spiral rods had fallen out by that time, the latch would have been bearing the entire 16kg of the upper sash, which would have made it difficult to turn; and
(c)further, Mr El-Ansary states in his report that further use of the window, once both spiral rods had been lost, would have required someone to lift the upper sash to secure it with the sash lock and/or supporting the upper sash with something like a stick. For reasons discussed in more detail below, I am not satisfied that the Defendant took either of those steps.
25․The absence of both spiral rods at the point when the Plaintiff opened the window meant that there was no counter-balance for the top sash, which is why the upper sash fell when the Plaintiff unlatched the window.
26․The Plaintiff reached out to try to arrest the fall of the top sash. I am satisfied that it is appropriate to draw this conclusion from the Plaintiff’s evidence that she may have pushed her hands forward as the upper sash fell, and from the fact that the Plaintiff’s hands ended up being impacted by the fall of the top sash when, from my observation of the photos attached to Mr El-Ansary’s report, the top sash would not have impacted the Plaintiff’s hands if she had kept them where they were when she unlatched the lock.
27․As a result of the Plaintiff’s efforts to try to stop the top sash from falling, her hands were impacted by the top sash as it fell and her right hand was trapped between the two sashes.
Liability
28․The primary issues about which findings need to be made, relevant to the Defendant’s liability, are:
(a)whether the Defendant was aware of the defect in the window; and
(b)whether the Defendant ought to have been aware of the defect in the window.
Plaintiff’s evidence
29․The Plaintiff said that she spoke to the Defendant on 28 July 2020 about staying at his house, because she needed to move out of her house until black mould which was found in her house during renovations she was undertaking, could be removed. The Plaintiff was aware from a previous conversation with the Defendant that he was going to go to Queensland the next day, so the Plaintiff asked whether she could stay in his room while he was away.
30․The Plaintiff was aware that the Defendant rented out the other rooms in his house to boarders. The Plaintiff said that they talked about her dog staying at the house, and the Defendant had said that it would be a good opportunity for the household to work out whether or not having a dog was a good idea. They agreed that the Plaintiff would attend the house that evening to meet the Defendant’s boarders (the Plaintiff’s would-be housemates), introduce the Plaintiff’s dog to the household, and make sure everyone was comfortable with the arrangement.
31․This evidence is reflected in a text exchange between the parties on the evening of 28 July 2020. Specifically:
(a)at 6.35pm on 28 July 2020, the Plaintiff contacted the Defendant to ask about using his room while he was away, as her doctor had said that the mould in her house posed a risk to her health. She said that no one she knew would let her stay with them because she had a dog. She noted that she was aware of the Defendant’s no dog policy but asked whether an exception could be made; and
(b)at 8.07pm on 28 July 2020, the Defendant said that two of his housemates were very excited at the idea of the household having a dog. The Plaintiff responded to say that she was going home to pick up the dog and would come over.
32․The Plaintiff said that, after she met the housemates, the Defendant took the Plaintiff to the master bedroom to show her the drawers that he had emptied for her to use, to show her where she could hang clothes, apologised that he had not cleaned and gave the Plaintiff the keys.
33․The Plaintiff said that they agreed on an amount of $350 per week for rent. She thought that the Defendant raised the issue of payment and she asked for receipts in case her insurance company would cover the cost of her temporary relocation arising from the black mould issue in her house.
34․I note that the issue of payment is raised in a text message exchange between the parties subsequent to the Incident. The Plaintiff sent the Defendant a message at around 4pm on the day of the Incident, saying that she had not been able to sort out a bank transfer that day. The Defendant responded to say that he was not sure how the Plaintiff was feeling about everything so he decided not to raise the issue. On 2 August 2020, the Plaintiff sent the Defendant a message confirming that she had paid $700 for two weeks’ rent.
35․The Plaintiff said that she did not discuss the blinds on the windows, or the windows in the room, with the Defendant. In cross-examination, the Plaintiff accepted that the Defendant told her, during their discussion, that she would need to get into the bathtub to open the windows in the bedroom ensuite, but not how to open the ensuite window. She said that there was no discussion about the windows or the flyscreens. She denied that the Defendant told the Plaintiff not to open the western-facing window because there were holes in the flyscreen and bugs would get in.
36․The Plaintiff also denied that the Defendant advised her not to lift the blind in front of the window because he was concerned about her health following shoulder surgery she had undergone in May 2020. The Plaintiff denied that the arrangement for her to pay the Defendant for the use of his bedroom was made after the Incident in a contrived attempt to be classified as the Defendant’s tenant for the purposes of bringing a claim. The Plaintiff said that she did not think it would make any difference to the claim.
Defendant’s evidence
37․I note the Defendant’s evidence in relation to the circumstances of the Incident is also relevant to the issue of liability, insofar as the Defendant’s evidence was that he saw a metal rod outside the western window of his bedroom some years prior to the Incident. His evidence was that he was not curious as to where it may have come from and that he never carried out an inspection of the window.
38․The Defendant gave evidence that he purchased his house in 2009. He said that it was initially rented out, before he moved in at the beginning of 2013. He has used the master bedroom since that time. He said that he has not made any changes to the sash windows in his room since he moved into the property.
39․The Defendant said that he has taken in paying boarders at the house since around 2015 or 2016, subsequent to his ex-wife moving out in 2014, and that there were four such people living in the house with him at the time of the Incident.
40․The Defendant said that he spoke to the Plaintiff in early 2020 about the possibility of him taking an extended holiday in Queensland and him renting out his room during that period. The Defendant indicated that the Plaintiff showed interest in renting his room, but it did not eventuate at the time.
41․The Defendant said that the Plaintiff again raised the possibility of her staying at the Defendant’s house when he went to Queensland, during July 2020. The Defendant said that the Plaintiff repeatedly raised the issue and he repeatedly said no. He said that there were several reasons, although he only gave evidence of one of those reasons, being that the Plaintiff wished to bring her dog with her.
42․The Defendant said that there was a “no-dog policy” at the property. He said that a few months earlier there had been a carpet beetle larvae infestation at another of his properties, in Narrabundah, arising from dogs at that property, which had cost him over $6,000 to address.
43․Relatedly, the Defendant said that one of the boarders had been asking to have a dog at the property for a year and a half and he had repeatedly refused. He was worried about the possible response from his boarders if he agreed to the Plaintiff bringing her dog.
44․Nevertheless, the Defendant said that he ultimately agreed to the Plaintiff’s request following a call he received from the Plaintiff on the evening of 28 July 2020, in which the Plaintiff explained that she and her dog had been exposed to a black mould infestation in her house and had nowhere else to stay. The Defendant said that the Plaintiff was very upset and begged him to let her stay at his house while he was in Queensland.
45․The Defendant said that the Plaintiff came over to his house on the evening of 28 July 2020 to meet his boarders. The Defendant gave evidence that they spoke after the meeting and that, at that time:
(a)he gave the Plaintiff an orientation in relation to the master bedroom, including showing her where the walk-in robe was and discussing the need to air the room to manage the smell from the Plaintiff’s dog. He said that he talked to the Plaintiff about her use of the blinds in the room, given the Plaintiff’s shoulder injury (the Defendant considered the blinds to be heavy), and also instructed the Plaintiff as to which windows to open (in circumstances where he did not want the Plaintiff to open the western-facing window). He said that he did not want that window opened because he had concerns about spiders and insects getting in from a bush that was outside the window. He said that shoots from the bush had damaged the flyscreen that was on the western-facing window and, “if the window was open, insects, including potentially red-back spiders, would pour into the bedroom”;
(b)he advised the Plaintiff that he was very concerned about carpet beetle infestation and the smell of the Plaintiff’s dog. He said that he advised the Plaintiff that she would need to give him some money so that he could organise a professional cleaner; and
(c)there was “nothing specifically discussed around rent but there was discussion … [about] getting a professional carpet clean and I think there might have been some discussion around just sort of a small amount of money for, you know, gas, electricity and all that but it was not rent”.
46․I note that, from early in the morning on 29 July 2020, the Defendant sent the Plaintiff a number of text messages providing instructions in relation to the house and master bedroom. These included:
(a)an article on carpet beetle that the Defendant forwarded from Wikipedia;
(b)directions in relation to the use of the cupboard above the microwave, the walk-in-pantry and the fridge, and their contents, and instruction in relation to how the fridge door catches (with a request that the Plaintiff close the door a particular way to avoid a build up of frost/ice);
(c)a photo of a set of bedside drawers that the Defendant had cleared, noting that he had cleared the drawers and dressing table drawers for her use; and
(d)a request that the Plaintiff not put any heavy items on the soap rack in the shower as the rack would be pulled out of the wall if it has a heavy object on it.
47․I note that the parties also exchanged text messages after the Incident. These included:
(a)a message the Defendant sent to the Plaintiff around the middle of the day on 29 July 2020, noting that one of the housemates had informed him that the Plaintiff had been involved in a bad accident, specifically that “your fingers got caught when opening a window”. The Defendant said “You must have been unlucky?”;
(b)a message the Plaintiff sent the Defendant at 6.09pm on 29 July 2020, saying that what had happened was an accident. She said that she assumed that the Defendant had public liability insurance if it turned into something big but she was not overly stressed about it at that stage;
(c)the message that the Plaintiff sent to the Defendant on 2 August 2020, confirming that she had paid $700 for two weeks’ rent. She also raised the question of an insurance claim, noting that she was going to be immediately without income, and asked the Defendant about contacting his insurer; and
(d)an exchange of several messages between the parties about the possibility of an insurance claim, including a message from the Defendant on 5 August 2020, in which he said that he was not sure what the impact would be by categorising the Plaintiff as a guest versus a border or tenant, and in which he thought it best to keep the claim as simple as possible. He suggested only volunteering information about the Incident and if a question was asked as to whether the Plaintiff was a tenant the answer would be no. The Plaintiff said that she was just a guest.
48․The Defendant said that he and the Plaintiff agreed to the Plaintiff paying him money to stay at the house after the Incident, because the Plaintiff was being aided by the Defendant’s boarders in terms of looking after her dog and preparing meals for her, and she wished to stay longer to take advantage of that assistance. The Plaintiff said that she required a receipt from the Defendant so that she could claim the cost from her house insurer as a cost arising from the black mould at her house. The Defendant said that, but for that agreement, he had intended for his trip to Queensland to be for eight days only, although he had not purchased a return flight because of the volatility of COVID lockdowns.
49․The Defendant said that he had never opened the western-facing window. Initially, that was because his ex-wife had a phobia about insects and spiders. He said that he had encountered red-back spiders a few times, once in 2019 when four red-back spiders had been found underneath the sun lounge near the bush outside the window, and once on another occasion in the organic bin which is also near the bush.
50․The Defendant said that, after the Incident, he put a sticker on the window, which read “Don’t Open”, and inserted two wooden sticks into the window so that it could not be opened. He said that he did that in case someone broke into his house and decided to open the window.
Evidence given under cross-examination
51․In cross-examination, the Defendant said that:
(a)he was not concerned about the window to the ensuite and the eastern-facing window being opened, principally because the flyscreens were not damaged. He said that he had not replaced the flyscreen to the western-facing window because he thought it would just get damaged by the bush outside that window again;
(b)he found “all sorts of spiders in the house” once he returned from Queensland, because the western-facing window to his bedroom had been left open. He said that he needed to have it fumigated; and
(c)the absence of any message from him to the Plaintiff, following the Incident, which raised the fact that he had asked her not to open the western-facing window (which might tend to show that he did not give the Plaintiff that direction), was explicable because, while he was mad with her, he did not think it was appropriate to berate someone who had injured both her hands and was staying in his bedroom. He also said that he had raised the issue in a telephone conversation with the Plaintiff.
52․The Defendant was also asked a number of questions about his evidence that he and the Plaintiff had not agreed on the payment of rent at the meeting on 28 July 2020. He repeatedly denied that any agreement for rent was made at the 28 July 2020 meeting, and said that there was a “vague discussion” about the Plaintiff paying for gas, but that he and the Plaintiff agreed to work that contribution out later.
53․The Defendant was shown the text message referred to above, that the Plaintiff sent to the Defendant on the afternoon of the Incident, in which the Plaintiff said that she had not been able to sort out a bank transfer that day. It was suggested to the Defendant that this reflected the fact that an agreement as to the payment of rent had been made at the meeting on 28 July 2020. The Defendant said that he interpreted the message as meaning that the Plaintiff was going to pay money for the professional carpet cleaning.
54․It was highlighted to the Defendant that her message was sent soon after she had hurt her hand, which suggested that the transfer referred to in the Plaintiff’s text message referred to an agreement for immediate payment. The Defendant stated that the Plaintiff was saying she wanted to pay rent and he was saying no.
55․It was also put to the Defendant that his response to the text message, which was that he wrote to the Plaintiff that he was not sure how she was feeling, so he decided not to raise the issue, also reflected the fact that an agreement had been reached for the payment of money on 28 July 2020, but the Defendant denied that. He said that he could not understand why someone who was sitting in hospital with their hand bandaged “would suddenly want to talk about rent and paying rent and paying money for carpet cleaning and all that”.
56․It was further suggested to the Defendant that he was worried about the Plaintiff being classified as a tenant because, if that was the case, he would not be able to claim on his insurance with respect to her injury. The Defendant denied that. It was put to the Defendant that, regardless of what he called someone staying at his house – guest, paying guest, tenant, or boarder – it would not make a difference because they are paying money. He said that it does matter because there are different legal definitions for each type of person and they all have different duty of care obligations.
57․In subsequent questioning, he accepted that he considered that it was important to know how the Plaintiff was classified because that might affect whether or not he could make a claim for her on his insurance policy.
Evidence of Andrew Holdaway
58․Andrew Holdaway is the Defendant’s son. He said that he had attended the Defendant’s house on two occasions prior to 29 July 2020.
59․Mr Holdaway said that, on the first occasion he attended the house, the Defendant asked him not to open the windows on the pool side (that is, the western side) of the house due to the presence of bugs and spiders that lived in the bushes. Mr Holdaway did not recall the Defendant mentioning that bugs or spiders had come through the window, nor did he know whether there was a fly screen on the window.
60․There was no suggestion that Mr Holdaway was not honest in the evidence that he gave and I accept his evidence.
Observations in relation to the Defendant’s evidence
61․I have concerns in relation to the reliability of aspects of the Defendant’s evidence summarised above. In particular, I consider that his actions subsequent to the injury, including the evidence he gave at the hearing, indicated an attempt to control a narrative that he wished to promote, being that the Plaintiff was not his tenant (regardless of what the true position was). It appears that he took this course in order to minimise his potential liability. In this respect, I note:
(a)the text message exchange between the parties prior to the commencement of proceedings, in which the Defendant identified the extent to which information should be given in relation to any insurance claim, and the Defendant’s statement that the Plaintiff should not describe herself as a tenant;
(b)the Defendant’s evidence as to the significance of the Plaintiff’s classification, in terms of his understanding of the scope of the duty of care he owed, and on whether he could make an insurance claim with respect to the Plaintiff’s injuries; and
(c)that I am of the view (as discussed further below) that the parties did agree, in advance of the Incident, that the Plaintiff would pay the Defendant rent to stay at his house, and that the Defendant’s attempts in cross-examination to interpret the relevant documentary evidence in a way that was consistent with his version of events did not make sense.
62․Accordingly, I have undertaken a detailed consideration of the evidence in order to determine those aspects of the Defendant’s evidence that I do accept.
Findings
63․I consider that the evidence outlined above establishes the following facts on the balance of probabilities.
64․In July 2020 the Plaintiff discovered black mould in her house during the course of a renovation. Her doctor advised her to stay somewhere else whilst the black mould was removed.
65․The Plaintiff was aware that the Defendant rented out the rooms in his house to boarders and was aware that the Defendant soon intended to travel interstate. On 28 July 2020, she asked him whether she could stay in his room while he was away. The Defendant agreed to the request, and the Plaintiff came to the house that evening to meet the Defendant’s boarders.
66․In a conversation between the parties about the Plaintiff’s request, the parties discussed the Plaintiff’s dog.
67․I accept the Defendant’s evidence as to the focus of the conversation with respect to the Plaintiff’s dog, being that he had a “no-dog” policy at the house, arising from his concern with respect to carpet beetle infestations. The Defendant’s evidence in that respect is consistent with the article that the Defendant sent to the Plaintiff early on 29 July 2020 about carpet beetles.
68․I accept the Defendant’s evidence that, following the Plaintiff’s introduction to the Defendant’s boarders, he gave the Plaintiff a brief orientation in relation to where things were in his room and the need to air the room to manage the smell from the Plaintiff’s dog.
69․I prefer the Plaintiff’s evidence that she and the Defendant agreed that she would pay the Defendant the amount of $350 per week whilst she stayed in his room. This is consistent with the message that the Plaintiff sent to the Defendant on 2 August 2020, that she had paid $700 for two weeks’ rent, and is consistent with the text message that the Plaintiff sent the Defendant on the day of the Incident, which said that the Plaintiff had not been able to sort out a bank transfer that day.
70․It is highly unlikely that a person would send such a message, after suffering a serious injury, if agreement had not been reached the night before as stated by the Plaintiff. The message indicates that agreement had been reached on 28 July 2020 for the payment of a particular amount on a particular day. The interpretation that the Defendant said that he gave to the text message sent by the Plaintiff did not make sense.
71․The Plaintiff’s position, that agreement was reached as to the payment of rent, is also consistent with the text message that the Defendant sent to the Plaintiff in reply to hers, which said that he was not sure how she was feeling about everything so he decided not to raise the issue. This message only makes sense if an agreement had been reached for the immediate (or near immediate) payment of money and the Defendant’s explanation to the contrary did not make sense. His text message is also not consistent with his oral evidence that there was a “vague discussion” about the Plaintiff paying for gas but that he and the Plaintiff agreed to work that contribution out later, nor his evidence that the discussion about payment was limited to the need for the Plaintiff to pay for a professional carpet cleaning and “some discussion around just sort of a small amount of money for, you know, gas, electricity and all that but it was not rent”.
72․Whether the Defendant asked the Plaintiff not to open the window on the western side of the bedroom, because he had concerns about insects and spiders coming into the room, is less clear. It is consistent with:
(a)the Defendant’s fear of the Plaintiff’s dog bringing carpet beetles into the house (that is, a general fear of insects getting inside the house); and
(b)the instruction that he gave the Defendant’s son when his son first came to the house, by which the Defendant asked his son not to open the windows on the western side of the house (that is, the Defendant was generally opposed to the window being opened).
73․On the other hand, the fact that neither of the parties made any mention of the Defendant’s request in relation to the window, in their communications following the Incident, does seem inconsistent with him having made that request. After all, the Plaintiff was injured by the very window that the Defendant asserts he asked the Plaintiff not to open.
74․Plausibly, the Defendant gave evidence that:
(a)the parties’ communication was not limited to text messages, and that they spoke about the Incident further over the phone; and
(b)he did not raise the request on the day of the Incident, in acknowledgment of the fact that the Plaintiff had just suffered a serious injury.
75․It is also to be kept in mind that, on the Defendant’s evidence, he had not warned the Plaintiff not to use the window because it was faulty (in circumstances where he was concerned that a failure to comply with the instruction would expose the Plaintiff to injury and potentially expose him to a claim for compensation). If that were the case, the Defendant would be understandably frustrated and, I suspect, more likely to highlight the failure to comply with the instruction than if a mere request had been made. On the Defendant’s evidence, the reason he had asked her not to open the window was because of his concern about insects getting in, such that he would likely not have had the same motivation to raise the issue.
76․Ultimately, I am not satisfied that the Defendant did ask the Plaintiff not to open the window on the western side of the bedroom and I am not satisfied that the Defendant raised any issue with the Plaintiff in relation to the weight of the cedar blinds on the windows. I consider that it is unlikely that the Plaintiff would have opened the window of the Defendant’s bedroom if he had explicitly requested her not to, given that she was a guest in his house (albeit a paying one). The absence of any reference to the request in the parties’ text exchange following the Incident, or in any communication between the parties prior to the commencement of proceedings, fortifies me in that view.
77․However, I accept the Defendant’s evidence that he was not aware that there was any issue with respect to the spiral balances in the western side window. In this respect, I note that:
(a)I do not consider that there is anything inherently implausible in the Defendant’s evidence that he had never opened the window, particularly in circumstances where there were other windows in the room. Further, even if I did not accept the Defendant’s evidence that he had never opened the window, it is clear from the evidence of the Defendant’s son that the Defendant had adopted a position, at least at some point in time, of not opening the window; and
(b)the parties’ common evidence was that the Defendant instructed the Plaintiff in relation to the use of the window in the ensuite and the Defendant’s text messages from the morning of 29 July 2020 show that the Defendant gave the Plaintiff instructions in relation to the use of the cupboard above the microwave, the walk-in pantry and the fridge, and their contents, as to how to close the fridge door without it catching, as to his bedside drawers and dressing table drawers, and as to the limitations of the soap rack in the shower. It is unlikely that he would remember to provide all of those instructions but not provide any instructions in relation to the window if he knew it was defective.
78․I am also of the view that there is no evidence of anything that should have alerted him to the possibility that the window was defective. I am satisfied that the steel rod that the Defendant saw a number of years prior to the Incident was a spiral balance from the window, however I accept the Defendant’s evidence that he did not know then that it was a spiral balance from the window. There is no evidence that there was anything in the appearance of the window which would have revealed that it was missing one of the spiral balances and there was no evidence that the Defendant did know, or should have known, that the rod was a spiral balance.
79․I also accept the Defendant’s evidence that he was not curious as to where the metal rod had come from and made no investigations in relation to the metal rod or the nearby window. This evidence is consistent with the state of the rod which, from the photo taken by the Defendant, appears to have rusted from being left outside over a considerable period of time.
80․As noted above, I consider the fact that the Plaintiff was, on her evidence, able to freely move the latch is indicative of at least one spiral balance remaining in the window at that stage because, if both spiral balances were absent, the weight of the upper window would make the latch hard to turn (it would have been holding the 16kg weight of the upper sash).
81․Further, even if I did not accept the Plaintiff’s evidence as to the ease with which she turned the latch, the evidence does not support the possibility that the window had already lost both spiral balances and that the Defendant was aware of that fact. As noted above, the expert evidence is that, once the window lost both spiral balances, the only way to close the window would be to push up the upper sash, manually insert a support (such as a stick) in the window and then latch it closed. Given that there is no evidence that any supports were found in the window, the Defendant would have needed to insert the supports, latch the window closed and then remove the supports. There would be no reason for him to do that and I do not accept that he did so.
82․I find that the Defendant did not undertake any inspection of his bedroom, in order to identify any hazards or to ensure that everything in the bedroom was in working order, between reaching agreement with the Plaintiff for her to stay there and when he left for his interstate trip the next day.
Application of facts to relevant provisions of the Wrongs Act
83․The relevant provisions of the Wrongs Act are set out earlier in these reasons.
84․In order to apply the facts to those provisions, it is necessary to understand what the risk to be guarded against was. As McWilliam AsJ (as her Honour then was) said in Limelight Cinemas Pty Ltd v Beatty [2018] ACTSC 18, at [55]:
The ‘risk’ that ought to have been considered is the risk of injury being caused by the defendant’s conduct, rather than the risk of an event that, in turn, carries a risk of injury: see Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 per Gummow J at [60]-[61]. This is consistent with s 43(2)(a) of the [Wrongs] Act, set out above. The relevant conduct is a failure to take precautions against ‘a risk of harm’ that was foreseeable and not insignificant. The requisite consideration is the probability that the harm would happen if precautions were not taken.
85․In my view, the risk of harm that was to be guarded against was the risk that the Plaintiff might injure herself when opening the western-facing sash window in the master bedroom of the house because of the defective nature of the balancing mechanism. The risk might be more broadly cast as the risk that someone might be injured if the Plaintiff opened the window, but it suffices for present purposes to focus on the risk as it pertained to the Plaintiff.
86․The question posed by s 168(1) of the Wrongs Act is, what was ‘reasonable in the circumstances’ for the Defendant to have done to guard against that risk.
87․In this respect, McWilliam AsJ (as her Honour then was) said in Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33, at [93]:
There is generally a degree of precision required in identifying what the defendant should have done and this is where a key difficulty with the plaintiff’s case arises. Phillis v Daly provides some assistance in this regard, per Mahoney JA at 72 (emphasis added):
A court required to determine whether what the defendant did was wrong may approach the matter in terms not of generality but of particularity. The court is required to identify what is the thing which the defendant should or should not have done and to examine, in terms of reasonableness, the acceptability of it. Such an approach does not, of course, provide a ‘slot-machine test’, that is, a test by the application of which without more a decision flows; the test of reasonableness involves a value judgment. But, by framing the question in terms of what actually happened and what caused it to happen, this approach enables the court to focus upon what precisely it was that the defendant should or should not have done and to judge that.
88․The Plaintiff submitted that the Defendant was aware of the defect in the balancing mechanism or, at least, ought to have been aware of it from having observed the spiral balancing rod lying on the ground outside the window some years prior to the Incident. She says, with respect to the considerations set out in s 168(2) of the Wrongs Act, that:
(a)the consequences of the falling window were dire – s 168(2)(a) (the Plaintiff did not make any submissions as to the likelihood of injury);
(b)the circumstances of the Plaintiff’s entry was as a paying guest, making the duty higher (presumably than if the Plaintiff was a non-paying guest) – s 168(2)(b);
(c)the nature of the premises was that they were a commercial boarding house – s 168(2)(c);
(d)the defendant was aware of the Plaintiff’s presence at the premises – s 168(2)(d);
(e)the Plaintiff was under no disability – s 168(2)(e);
(f)the Plaintiff could not have been expected to have any appreciation that the window posed a risk – s 168(2)(f); and
(g)there was no burden to remove the danger, noting the expert evidence that the window would have only cost $300 to fix but, at a minimum, the Plaintiff could have placed a warning label on the window as he later did – s 168(2(g).
89․I accept that, had the Defendant known of the risk, or were it the case that he ought to have known of the risk posed by the window, he would need to have taken steps to guard against that risk in order to discharge the duty of care that he owed the Plaintiff.
90․In terms of the s 168 considerations, I do not consider that it was likely that someone in the vicinity of the window would have been injured by the top sash falling, given how close they would need to be to the window to be impacted (whether the person was on the outside or the inside of the window). If they were the person to open the window (as the Plaintiff was) they would need to have been touching the top sash with one hand while opening the latch with the other (which seems unlikely) or to have reached out to touch the top sash as it fell (as the Plaintiff did, which would seem to be an unlikely reaction, albeit foreseeable as a possibility).
91․However, I consider that the possible consequence of being impacted by a 16kg sash window was sufficiently significant to demand that something be done to guard against the risk of harm, given the minor nature of the burden placed on the Defendant to do so. This would be so whether or not the Plaintiff was a paying guest.
92․If the Defendant had known of the risk of harm, or had it been the case that he ought to have known of the risk of harm from facts within his knowledge about the window then, in the circumstances of this case (where the arrangement for the Plaintiff to stay in the Defendant’s bedroom was made the night before the Defendant was to leave for an interstate trip) the step that the Defendant would reasonably have been expected to take would have been to provide a warning to the Plaintiff not to use the window. The warning could have been verbal and/or through the use of a warning label on the window.
93․However, as noted above, I am not satisfied that the Defendant was aware of:
(a)the defect in the balancing mechanism in the bedroom window. That is, I am not satisfied that he knew of the risk of harm posed by the defect; nor
(b)any facts that should have alerted him to the defect in the balancing mechanism.
94․The Plaintiff’s alternative position is that the Defendant should have carried out an inspection of his bedroom before permitting the Plaintiff to use it. In closing submissions, the Plaintiff’s position was that the Defendant should have:
(a)checked everything in the room that had a mechanism that could be manipulated by the Plaintiff, such as light switches and things in the room that opened and closed; and
(b)on discovering the defect in the window, warned the Plaintiff as to the dangers of the window, at least by putting a label next to the window latch warning a user of the room not to open to the window as the Defendant did after the Incident.
95․Alternatively, in the absence of having undertaken an inspection, the Plaintiff says that the Defendant should have directed her not to open the window.
96․In circumstances where I am not satisfied that the Defendant was aware of any facts that should have alerted him to the defect in the balancing mechanism, the Plaintiff’s alternative positions rely on a finding that the Defendant was under a general obligation to undertake an inspection of his room to identify safety risks. However, I am not satisfied that, in the circumstances of this case, an occupier in the Defendant’s position, acting reasonably, would have undertaken an inspection of the kind identified by the Plaintiff.
97․I note that, had I been of the view that the Defendant was obliged to undertake an inspection, that obligation would have extended to undertaking an inspection of the common areas of the house, as well as an inspection of the master bedroom. While I have focused my remarks on the inspection of the bedroom that was argued for by the Plaintiff, my remarks apply equally to any broader inspection of the house that might be said to have been needed.
98․There was no evidence that the Defendant’s bedroom was inherently dangerous. Nor was there anything to suggest that it was a place where hazards would commonly be found, such as to give rise to a need to undertake a safety inspection. It is also to be kept in mind that the arrangement for the Plaintiff to stay at the Defendant’s house was made at short notice, the night before he was to leave for an interstate trip.
99․I note that the Defendant relied on several cases which have considered the obligation of an occupier of residential premises to undertake an inspection of leased premises.
100․In Jones v Barlett [2000] HCA 56 (Jones v Barlett), the High Court had occasion to consider the duty of care owed by a lessor of residential premises to an incoming tenant. While the scope of that duty was not formulated in identical terms by their Honours, I note the following passages of relevance to the present case:
Gummow and Hayne JJ stated, at [173], [174], [186], that:
173.… The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects [which their Honours defined to mean defects that are dangerous in a way not expected by their normal use] will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe …
174.What constitutes the taking of reasonable steps will, as Dawson J noted in Northern Sandblasting, depend on all the circumstances of the case. What is reasonable for premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor. Moreover, the reasonableness of steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched, the obligation the parties allocated inter se and any specification of limited purpose to which the premises be put …
...
186.As Ligertwood J recognised in the above passage [from Watson v George], where the existence of a dangerous defect was merely a possibility (albeit one later realised when the plaintiff was injured), the steps a landlord was required to undertake were only those that would be taken in the course of “ordinary reasonable human conduct”. That matter is not an exercise in hindsight. The identification of the requisite steps will depend, among other things, upon whether an ordinary person in the landlord’s position would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps …
Kirby J held, at [249]:
… Except where legislation imposes a duty with which the landlord must comply, the common theme of contemporary obligations is to hold back from imposing absolute liability. Moreover, it is to limit the statutory obligations of landlords to the standard of reasonable care. It is to impose common law standards of a similar character. Such standards exclude liability for latent defects of which a landlord has no notice and is reasonably unaware.
101․In Short v Barrett [1990] NSWCA 164 Meagher JA (Clarke and Handley JJA concurring) stated at 4, ‘… In my view, a householder in the position of Dr or Mrs Short is not acting unreasonably in taking their house as they find it, assuming it to be perfectly safe unless and until they either know it is unsafe or else receive warning that it may be unsafe’.
102․In King v Stewart [1994] NSWCA 164, the New South Wales Court of Appeal, Shelley JA, with whom Priestley JA agreed, noted at 21, that ‘… this court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purposes of discovering unknown or unsuspected defects’.
103․The same observation was made in Stannus v Graham (1994) Aust Torts Reports 81-293, a case in which the court considered a claim in negligence arising from a tenant slipping on a loose step. There was no evidence that the owner of the property was aware that the step was loose.
Priestly JA found that:
Ordinary experience does not suggest the steps were of a kind needing special testing or inspection from time to time …
Handley JA remarked:
The other question on liability is whether an owner occupier owes any duty to persons in the position of the plaintiff to inspect premises such as this to discover unsuspected defects which might be a source of danger to lawful entrants. …
This Court has hitherto declined to impose any tortious duty on occupiers to inspect their premises for the purpose of discovering unknown and unsuspected defects. In Aslanidis v Atsidakos (13 February 1989 unreported) the trial Judge had found that the defendant, a landlord, neither knew nor ought to have known of the particular defect which had caused the injury to the plaintiff. The only basis on which it was contended that the defendant ought to have known of the defect was “that every landlord has an obligation to make a thoroughgoing inspection of the demised premises immediately before the commencement of a tenancy”. Meagher JA, with whom Hope JA agreed, held that there was no such duty.
104․Based on the above authorities, I do not consider that the Defendant had a general obligation to undertake an inspection of his bedroom.
105․As may be observed from the excerpts set out above, there are several authorities which stand for the proposition that the Defendant had no obligation to inspect his room for the purposes of discovering unknown and unsuspected defects (or, as Kirby J described them, defects of which the Defendant had no notice and was reasonably unaware). I have found above that the defect in the window was of this character.
106․Further, on the more open formulation of a landlord’s obligations set out in the judgment of Gummow and Hayne JJ in Jones v Barlett, I do not consider that the Defendant was obliged to undertake an inspection in the circumstances of this case, having regard to what would be expected in the course of ordinary reasonable human conduct. Relevantly, the Defendant himself was living in the bedroom at the time he agreed to let the Plaintiff stay in it. He had done so since the beginning of 2013. The Defendant’s lack of awareness of any defects needs to be understood in this context – the Defendant could reasonably expect to be aware of any defects in the room – such that an ordinary person in his position would not have undertaken an inspection of the room.
107․This conclusion is supported by the fact that the arrangement for the Plaintiff to stay in the Defendant’s bedroom was made at short notice, the night before the Defendant was to leave for an interstate trip, arising from the Plaintiff’s urgent need for accommodation.
108․In any case, I am not satisfied that, if it was reasonable to expect the Defendant to undertake an inspection of the room, that it would have been reasonable to expect him to do anything more than a visual inspection of the room to identify any obvious hazards, such as an extension cord on the ground that might present a trip hazard, or the fraying of any electrical cords or overloading of power boards that might present a risk of fire. I am not satisfied, in the circumstances of this matter, that if the Defendant had an obligation to inspect the room, that such an inspection would need to have involved the kind of inspection argued for by the Plaintiff.
Conclusion
109․In circumstances where I am not satisfied that the Defendant was aware of the relevant risk of harm, nor that he ought to have been aware of that risk, I do not consider that the risk of harm was foreseeable, as defined in s 43(1)(a) of the Wrongs Act.
110․Pursuant to s 43(1)(a) of the Wrongs Act, the Defendant is not negligent in failing to take precautions against a risk of harm if the risk was not foreseeable. Accordingly, I find that the Defendant was not negligent in failing to take precautions against the risk that the Plaintiff might injure herself when opening the western-facing window in his bedroom because of the damaged nature of the balancing mechanism.
Contingent consideration of causation and contributory negligence
111․In case I am wrong with respect to the above finding, I have given consideration to the issues of causation and contributory negligence that would have arisen if I had found the Defendant liable to the Plaintiff.
Causation
112․The test for causation is set out in sections 45 and 46 of the Wrongs Act.
113․I am satisfied that, if the Defendant had knowledge of facts that ought to have alerted him to the possible defect in the balancing mechanism in the window, sufficient to alert him to the risk that the Plaintiff might suffer harm if she opened the window, such that he had an obligation to warn the Plaintiff not to use the window, his failure to do so caused the harm suffered by the Plaintiff because it was a necessary condition of the happening of the harm (or, to put it another way, but for the failure, the Plaintiff would not have suffered harm), and that it would be appropriate for the scope of the Defendant’s liability to extend to the harm caused.
114․I am satisfied that, if the Defendant had an obligation to inspect his bedroom prior to the Plaintiff’s occupation of it, and if that obligation extended to an inspection of the kind argued for by the Plaintiff, that that inspection would have revealed the defect in the window mechanism, such that he would have had an obligation to warn the Plaintiff not to use the window. I am satisfied that his failure to do so in those circumstances would have been a cause of the harm suffered by the Plaintiff for the same reasons set out above.
Contributory negligence
115․The principles relevant to contributory negligence are set out in section 102 of the Wrongs Act, the wording of which is set out earlier in these reasons.
116․The key questions are, to what extent was the Plaintiff responsible for the harm she suffered and, having regard to the answer to that question, to what extent would it be just and equitable to reduce any damages recoverable for the Defendant’s negligence.
117․I have found above that the Plaintiff reached out in an attempt to stop the fall of the upper sash when she opened the window. The Defendant submits that this action constitutes contributory negligence on the Plaintiff’s part.
118․The Plaintiff submits that everything happened in a millisecond and that it would be a very hard marker to find that there was any negligence on the part of the Plaintiff. She submits that there is no basis for a finding of contributory negligence.
119․The considerations to which the Court needs to have regard in determining a contributory negligence claim are set out in the decision of Penfold J in Atherden v Caldipp [2019] ACTSC 29, at [122]-[126]:
122.A finding of contributory negligence by Mr Atherden required a conclusion that he had failed to take reasonable care for his own safety and that his failure had contributed to the injury he had sustained (Nance v British Columbia Electric Rail Co Ltd [1951] AC 601 at 611; Commissioner of Railways v Ruprecht (1979) 141 CLR 563 (Ruprecht) at 570). The standard of care expected is that of a reasonable man of ordinary prudence (Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 36-37, and Ruprecht, in which Mason J at 573 identified a relevant question as whether the action of the plaintiff was “incompatible with the conduct of a prudent and reasonable man”).
123.Aspects of determining contributory negligence are dealt with in the Civil Law (Wrongs) Act 2002 (ACT) (the Wrongs Act). Section 102(1)(b) obliges a court that finds contributory negligence to reduce the damages recoverable for the wrong “to the extent the court ... considers just and equitable having regard to the claimant’s share in the responsibility for the damage”.
124.In Ghunaim v Bart [2004] NSWCA 28 (Ghunaim), the New South Wales Court of Appeal (McColl JA with whom Giles and Ipp JJA agreed) said at [71] that the statutory requirement in assessing contributory negligence (which is expressed in the ACT in the same terms as were used in NSW):
...requires the trial judge to "compare the culpability of the plaintiff and defendant in the sense of the `degree of departure from the standard of care of the reasonable man' ". The trial judge has to have "regard ...to the `relative importance of the acts of the parties in causing the damage' ". It is " ‘the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' ".
(citations omitted)
Approach to apportionment
125.As to the apportionment of liability ifcontributory negligencewas found, counsel noted the obligation imposed on the court by s 102 of the Wrongs Act (at [123] above) and referred to the joint judgment in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALR 529 (Podrebersek) at 532-533, where the Court said:
A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds".
...
The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man (Pennington v. Norris [1956] HCA 26; (1956) 96 CLR 10, at p 16) and of the relative importance of the acts of the parties in causing the damage.
(citations omitted)
126.Counsel noted that s 47 of the Wrongs Act allows a court to “decide on a reduction of 100% if the court considers it is just and equitable to do so, with the result that the claim for damages is defeated”, and, on specific instructions, sought a reduction of 100% for contributory negligence.
120․In my view, the Plaintiff’s actions, in seeking to arrest the fall of the upper sash window, were not incompatible with the conduct of a prudent and reasonable person. While in hindsight it is easy to say that she placed herself at risk of harm, I note that she had just moved into the Defendant’s bedroom and did not know how heavy the upper sash was. That is, it is not apparent that she appreciated the risk of her actions. Further, while the Plaintiff’s evidence suggested that she had reached out without thinking, she must have at least had the thought that it would be undesirable to let the window fall. Given that she was staying in the Defendant’s bedroom, it is understandable that she would have taken the action that she did in order to prevent damage to the window. In those circumstances, I do not consider that the Plaintiff departed from the standard of care expected of the reasonable person.
Contingent assessment of damages
121․In case I am wrong with respect to my finding that the Defendant did not breach the duty of care he owed to the Plaintiff, I have made an assessment of the damages I would have awarded to the Plaintiff if I had found the Defendant liable to her.
Documentary evidence
122․The parties tendered a number of documents that relate to the Plaintiff’s pre-existing medical conditions, as well as to the impact of the Incident on her.
123․Of significance, the Plaintiff was involved in an accident in 2006 on her way to work. She made a successful claim for compensation to Comcare for injuries she suffered in that accident.
Report of Dr John Sheehy – Comcare claim
124․Dr John Sheehy, Consultant Neurosurgeon, prepared a report for Comcare, dated 9 April 2020. It reports that:
(a)the Plaintiff was struck on her left side by a bus in 1998, resulting in shoulder discomfort;
(b)the Plaintiff was involved in a motor vehicle accident in 2002;
(c)the Plaintiff considered that symptoms arising from the above accidents had resolved by 2006, when she was injured on her way to work. She fell onto her right side from a scooter she was riding. The Plaintiff sustained injuries to her neck, right shoulder, right forearm, right lateral trochanteric region, right calf and left and right thumbs. She also developed bilateral neck and scapular pain with right periscapular discomfort; and
(d)as at the time of consultation:
(i)the Plaintiff continued to complain of ongoing neck pain which radiated down the medial aspects of both scapulae and of pain radiating into the right arm and forearm and two fingers of the right hand. The Plaintiff complained of pain in a similar distribution in the left arm, but of much less severity. She complained of numbness of the right thumb and index finger and of the left thumb and index finger. The Plaintiff reported that she found gym activities improved her symptoms and that she had reduced her work hours in an attempt to obtain relief from her symptoms;
(ii)the Plaintiff reported that she found it difficult to undertake any domestic chores and that she had a cleaner to assist her in that regard. She reported that she was unable to carry her shopping as this made her condition worse and she had difficulty dressing as a consequence of the pain; and
(iii)the Plaintiff was working as a psychologist in private practice. She had worked up to 25 hours per week, but in recent times her hours had been much less.
125․Dr Sheehy was of the view that:
(a)the Plaintiff had a compression of her C6 and C7 nerve roots and suffered from symptoms of nerve compression affecting those nerve roots together with symptoms of injury to her neck. Dr Sheehy stated that this is a progressive degenerative change, the effects of which had been accelerated by the 2006 injury;
(b)the Plaintiff’s prognosis was guarded;
(c)the Plaintiff’s work capacity was 15 hours per week (Dr Sheehy noted that the Plaintiff was working three hours per day, five days per week); and
(d)decompression of the Plaintiff’s C6 and C7 nerve roots could be considered to assist the Plaintiff, as well as avoiding activities which exacerbate her symptoms such as prolonged sitting, lifting or bending.
Records of Dr Sindy Vrancic – treating practitioner
126․Subsequent to the preparation of Dr Sheehy’s report, the Plaintiff underwent surgery to replace discs in her neck. This surgery was conducted by Dr Ow-Yang, Neurosurgeon, in May 2020.
127․The Plaintiff then consulted Dr Sindy Vrancic, Orthopaedic Surgeon. Amongst Dr Vrancic’s records are a number of reports to the Plaintiff’s general practitioner, Dr Rosemary Austen. Relevantly, Dr Vrancic wrote to Dr Austen on:
(a)8 July 2020, to advise that the Plaintiff had had successful cervical disc replacements (the Dr Ow-Yang surgery). Dr Vrancic reported that this surgery had resolved a significant component of her arm pain and that this surgery, in combination with her right shoulder surgery, had addressed a wide range of her pain issues. Nevertheless, the Plaintiff reported ongoing residual left shoulder pain;
(b)19 August 2020, to advise that the Plaintiff underwent surgery at The Canberra Hospital following the Incident. Dr Vrancic described the surgery as involving exploration and closure of a wound on her right index finger, exploration and closure of a wound on her left index finger and a K-wire fixation for bony mallet to her left ring finger. Dr Vrancic reported that the Plaintiff was struggling with the mallet finger splint and the lack of movement in her fingers, which was preventing her from undertaking her normal duties (including writing, taking notes and typing). Dr Vrancic also reported that the Plaintiff’s right hand index finger was swollen and stiff and that her left index finger wound had healed but the digit remained swollen with poor movement. Dr Vrancic advised that she removed the dorsal blocking wire. Dr Vrancic opined that: “I do not expect a [sic] long-term consequences as the result of her injury other than a loss of time while she is rehabilitating. She will continue with hand therapy in the short-term and I will review her as planned to remove that wire”;
(c)19 October 2020, to advise that the Plaintiff’s “left ring finger mallet finger has united, and she has been left with a fixed flexion deformity at the Distal inter phalangeal joint – resulting in a loss of hyper-extension. Her nail is growing abnormally and may always have a ridge due to the injury. She has active flexion which is improving, and with her therapist she can work on regaining active range in this finger. Other than the nail changes and loss of full flexion, there are no long term issues likely to occur. With her left index finger, there remains a swollen lump over the ulnar border of the digit which may be residual scar tissue or perhaps a retained piece of glass … Of greater concern to Kerry is the increased scar tissue and swelling around the Proximal interphalangeal joint of her right index finger”; and
(d)7 December 2020, to advise that the Plaintiff’s left ring finger remained red, and there was a concern that she may have developed chronic osteomyelitis in it. Dr Vrancic said that the redness was most likely related to the Plaintiff’s bony mallett still attempting to heal, and the K wires. Dr Vrancic also stated that, “As a consequence of her hand injuries and immobilisation, this has led to mal-adaptive posturing, and her right radial nerve is now post-traumatically irritated within the radial tunnel … Her mal-adaptive posturing is leading to her radial nerve issues in her right forearm”.
162․The Plaintiff was asked about the statement of particulars that were filed in the proceedings. She said that that document was sent to her by email for review and that she reviewed the document before sending it back. At paragraph 8.1, it records that the Plaintiff was the sole director of Ms Pink Enterprises Pty Ltd since 2013, which the Plaintiff said was correct, and at paragraph 8.2 it records that the Plaintiff was working full time hours as the principal psychologist in her practice. The Plaintiff said that that was not correct because she had not worked full time since 2011.
163․The Plaintiff accepted that she continues to receive payments from Comcare, with the amount of those payments relating to the number of hours that the Plaintiff is certified as being able to work. The Plaintiff was shown a document recording the payments she received from Comcare. She was taken, in particular to the payments made in the period 13 to 19 August 2020 (for which she was paid $1,461.20), and the two previous periods (down to the 30 July to 5 August 2020 period), for which she was paid $1,567.31 during each period.
164․She accepted that these periods were immediately after the Incident and initially accepted that she could not work at all during that period because of the injury she suffered as a result of the Incident. She then said that the Incident-related injuries had resulted in her being unable to work ‘the balance of what was not already involved in my neck and reduced hours regarding my neck’.
165․She then accepted that she could not work at all because of the Incident-related injuries, and accepted that she did not inform Comcare of her injuries, even though she was aware that the amount Comcare paid to her correlated to how many hours she was certified as able to work. She said that the reason she could not work was not Comcare’s problem, and that her incapacities from her hand injuries were unrelated to her Comcare claim.
166․The Plaintiff was also taken to a document prepared by Dr Vrancic, dated 1 March 2021, which stated that the Plaintiff reported that she had been unable to work between 20 August 2020 and 9 September 2020, however she accepted that she was undertaking certain tasks associated with her business. She was asked, ‘when you say you were unable to work, that was just seeing clients was it?’. The Plaintiff said ‘Yes, primarily’, but then accepted that she did see high demand clients if they were in crisis and may have seen those clients during the relevant period. She was also shown a text message exchange with the Defendant in which she told the Defendant on 12 August 2020 that she was seeing clients that afternoon.
167․The Plaintiff was asked about psychological stressors towards the end of 2022, which led to her making her current worker’s compensation claim. She accepted that the mental health condition from which she was suffering prevented her from working at all and she sought compensation for loss of income. Nevertheless, she confirmed that she did not tell Comcare about this worker’s compensation claim. She said that this was because the psychological injury was not the sole reason she is unable to work.
168․The Plaintiff was also asked about a schedule that she prepared for the proceedings which listed invoices she had received from Donna’s Cleaning Service, totalling $6,945. She was asked whether she had made sure that the cleaning services rendered were referable to the injuries to her hands that she sustained in the July 2020 Incident. She said ‘No, all I was asked to do was to provide a copy of all of the invoices that had been taken from Donna over that period. I was not asked to make reference to anything else’.
169․She conceded that she knew the document was to be considered in relation to her claim, and knew that it did not all relate to her hands. She accepted that she was using Donna’s Cleaning Service before the Incident (although not on the regular basis she was afterwards), accepted that, as a result of shoulder surgery she underwent on 7 January 2021, she could not undertake any tasks around the house (regardless of the problems with her hands) and accepted that, for a period of time, she was living with a flatmate and Donna’s Cleaning Service would sometimes be used to clean both their bathrooms.
170․She was asked why she did not tell anyone that the listed expenses did not just relate to her. She stated that: ‘I was never asked anything more than to provide the list of invoices’.
171․The Plaintiff was asked about the report prepared by Dr Eaton and, in particular, Dr Eaton’s record that the Plaintiff reported that she could not ring out a dish cloth. The Plaintiff said that the issue was that she could not clench a cloth with one hand. She said that that was not inconsistent with her capacity to perform Russian swings at the gym as the two tasks involve different movements. The Plaintiff said that she could not wipe down a shower or toilet without pain, given the pressure exerted on her hands by the scrubbing motion. She said she could not vacuum without pain, although she does not have a great need to vacuum between Donna’s Cleaning Service visits as she lives by herself and does not really make a mess. Again, the Plaintiff said that there is a different movement involved in using a vacuum, as compared with using weights at the gym.
Observations in relation to the Plaintiff’s evidence
172․I have considerable concerns in relation to the reliability of the Plaintiff’s evidence summarised above.
173․I consider that the Plaintiff acted dishonestly in order to maximise the compensation she could obtain from the Defendant, in that:
(a)the Plaintiff misrepresented her pre-injury working capacity on the personal injury notification form. She did not satisfactorily explain this discrepancy;
(b)similarly, the Plaintiff misrepresented in her statement of claim that she was working full time hours at the time of the injury. I do not accept that the misrepresentation arose as a result of the Plaintiff’s solicitors misunderstanding any instructions that the Plaintiff gave to them in this respect, as suggested by the Plaintiff. The Plaintiff’s evidence was that she prepared the document with her solicitors and checked it;
(c)similarly, the Plaintiff misrepresented in her statement of particulars, filed in the proceedings, that she was working full time hours; and
(d)the Plaintiff prepared a schedule of invoices she had received from Donna’s Cleaning Services, that she knew would be considered in relation to her claim, and that she knew included amounts that were not referable to her hand injuries. I found her evidence that she “was never asked anything more than to provide the list of invoices” to be disingenuous.
174․I also consider that the Plaintiff exaggerated her evidence in order to maximise the compensation she could receive from the Defendant, in that:
(a)the Plaintiff gave inconsistent evidence as to the extent to which her symptoms resolved following her disc surgery in May 2020 and the impact of her symptoms on her capacity to perform domestic tasks. Initially, in her evidence in chief, she said that her symptoms resolved following the May 2020 surgery, however in cross-examination she conceded that it was not the case that her problems ceased entirely following that surgery, but rather “a good 80 per cent of it and the issues in [the Plaintiff’s] arms resolved”. Similarly, she initially did not accept that she was still having problems undertaking domestic tasks in July 2020, but later qualified this statement under cross-examination by saying that she was able to complete 80 per cent of tasks; and
(b)her claimed current incapacity to undertaken domestic activities is inconsistent with her ability to perform her gym routine and, in particular, her capacity to use a 16kg kettlebell in Russian swing exercises and a 32kg weight in performing bench presses. I do not accept her explanation that the scrubbing motion of cleaning a shower or toilet and the motion of vacuuming is such that she cannot undertake those activities without pain when she can perform weights routines in the gym that would exert significant pressure on her hands and wrists.
175․I also note that the Plaintiff obtained a letter from Dr Vrancic, on or about 1 March 2021 stating that the Plaintiff had reported to Dr Vrancic that she had been unable to work between 20 August 2020 and 9 September 2020, despite performing work during that period.
176․The Defendant also suggested that the Plaintiff had not provided full disclosure of her injuries and claims to Comcare, with the intention of avoiding any reduction in her Comcare payments. While I found the Plaintiff’s evidence in relation to these matters to be somewhat evasive, the Defendant did not tender any evidence or provide any authority which demonstrated that the Plaintiff was under an obligation to advise Comcare of her later injuries and claims prior to receiving any compensation for them.
177․Given my concerns in relation to the reliability of the Plaintiff’s evidence, I have undertaken a detailed consideration of the evidence in order to make factual findings relevant to my damages assessment. I placed considerable importance on the documentary evidence that was tendered by the parties as providing the most objective source of information.
Findings
178․I consider that the following findings of fact can be made, having regard to the above evidence, on the balance of probabilities.
Findings in relation to the impact of the Incident and the Plaintiff’s medical treatment
179․As a result of the Incident, the Plaintiff was in considerable pain and it was approximately 15 minutes before paramedics arrived. She suffered a laceration and swelling of her right index finger, a laceration and fracture of her left index finger, and pain and swelling in her left ring finger.
180․The Plaintiff underwent day surgery on 31 July 2020. She had attended the hospital all day on 29 and 30 July 2020, however her surgery was not able to be accommodated on those days. The surgery involved two K-wires being inserted into the ring finger of the Plaintiff’s left hand, which later became infected. The Plaintiff also had a debridement and repair of the lacerations to her right and left index fingers, including the use of stitches on her left and right index fingers. The Plaintiff was in significant pain following the surgery because of the extent of suturing on her hands, combined with the fracture to her finger.
181․The Plaintiff could not perform many day-to-day activities following the Incident, so the Canberra Hospital arranged for her to have home help between 4 August 2020 and 9 September 2020, in the evenings for around one and a half hours, in the nature of assistance with showering, light domestic tasks and basic meal preparation. In addition, the Plaintiff’s housemates at the Defendant’s house rendered assistance, particularly with meals and feeding and exercising her dog. This additional assistance totalled about one hour per day for the first month, after which time things started to improve.
182․The Plaintiff also attended the Canberra Hospital hand clinic as an outpatient a couple of times per week for around eight weeks. She was having problems with infection in the K-wire at the top of her left ring finger and was prescribed several courses of antibiotics. She had a lot of pain around the infection.
183․The Plaintiff saw Dr Vrancic on 19 August 2020. Dr Vrancic removed the top wire from the Plaintiff’s left ring finger. She performed that procedure under local anaesthetic. At that time, the Plaintiff was struggling with the lack of movement in her fingers, which was preventing her from undertaking her normal duties (including writing, taking notes and typing). Dr Vrancic did not expect any long-term consequences as a result of the injury.
184․The Plaintiff returned to see Dr Vrancic on 9 September 2020 for her to remove the other K-wire from the Defendant’s left ring finger, however she was not able to remove it. The Plaintiff was required to attend the National Capital Private Hospital on 11 September 2020 to have it removed under general anaesthetic.
185․The Plaintiff returned to her own house in September 2020.
186․On 19 October 2020, Dr Vrancic wrote to the Plaintiff’s general practitioner, repeating her view that the Plaintiff was unlikely to suffer any long term issues (other than nail changes and loss of full flexion in her left ring finger). However, at that time, the Plaintiff had a swollen lump in her left index finger and increased scar tissue and swelling in her right index finger.
187․On 7 December 2020, Dr Vrancic wrote to the Plaintiff’s general practitioner to advise that the Plaintiff’s left ring finger remained red, most likely relating to the bony mallett still attempting to heal and the K-wires. Dr Vrancic also wrote that the Plaintiff’s right radial nerve was post-traumatically irritated, leading to radial nerve issues in the Plaintiff’s right forearm.
188․On 17 December 2021, the Plaintiff underwent scar tissue removal and surgery with Dr Vrancic on the Plaintiff’s right index finger. The surgery improved the pain in her finger, but it did not make any difference to her thumb or the back of her hand or her forearm. The scar tissue returned but it was not as bad as it had been.
Findings in relation to the Plaintiff’s disabilities and restrictions
189․In terms of her current symptoms, the Plaintiff said she has permanent numbness in the side of her right thumb into the back of her hand above the index finger. She said that she suffers from pain through the back of her hand, the back of her wrist and up into the forearm. On her left hand, she said that the last knuckle on her ring finger and index finger becomes swollen and painful. She said that she has tightness up her left forearm but it is not as bad as the right arm. She said that she takes anti-inflammatories and pain relief as required. She said that she had not experienced those symptoms in her forearms prior to the Incident.
190․As noted above, the report of Dr Sheehy of April 2020, and the physiotherapist’s records of 17 and 24 July 2020, show that the Plaintiff was experiencing numbness in her thumbs and index fingers, together with pain in her arm that radiated down to her fingers. That is, numbness and pain in the same areas that the Plaintiff claims remain affected by the Incident.
191․While the Plaintiff reported to Dr Vrancic that her surgery in May 2020 had resolved a significant component of her arm pain, and that that surgery, in combination with the Plaintiff’s right shoulder surgery, had addressed a wide range of the Plaintiff’s pain issues, the contemporaneous evidence is not specific as to what areas of pain, beyond her arm, had resolved. The Plaintiff’s evidence that 80% of her symptoms had resolved was similarly general in nature.
192․I also note that the Chenzen Wellness Centre notes of 30 September 2021 record the Plaintiff complaining of repeated pain in her neck, hip and shoulder over the preceding two weeks. These notes cast doubt on the extent to which the Plaintiff’s areas of pain resolved following the May 2020 surgery.
193․The Plaintiff suggested in her evidence that the numbness she now experiences is different from the numbness she experienced previously. It was a feature of the Plaintiff’s evidence that she sought to distinguish the pain she currently suffers, from the pain which she previously suffered in the same area, on the basis that it was not of the same kind, or type, or having arisen from a different cause. In this respect, I note that the Plaintiff is not a doctor and did not have any relevant qualifications or expertise to express an opinion as to the cause of her pain, although I accept that she could give evidence as how she perceived pain at different times.
194․I do not accept the Plaintiff’s evidence that the issue of numbness in her right finger and thumb had resolved by the time of the Incident. Dr Sheehy’s report shows that the Plaintiff was suffering from that issue in April 2020, the general practitioner consultation notes record ongoing numbness on 8 July 2020 and the physiotherapist’s notes record that she will still suffering numbness only 5 days before the Incident.
195․Further, given the range of activities undertaken by the Plaintiff, particularly her gym routines, I do not accept that the Plaintiff now suffers from much pain at all as a result of the Incident, if any.
196․In terms of the Plaintiff’s current restrictions, she said that she struggles with fine motor tasks and cannot, for example, undertake craft activities, needlepoint, crochet, drawing or painting any more. She also said that she does not garden anymore and that it is a bit challenging with tasks such as weeding and activities which involve her forearms. She said that she can use the mower but not the whipper snipper. She employs a gardener to undertake certain tasks. She also said that friends of hers have rendered assistance in the garden, totalling approximately 20 hours in the month leading up to the hearing.
197․She said that she cannot undertake heavy cleaning, which she engages Donna’s Cleaning Service to complete. This is still on a fortnightly basis. She said that her knife skills are not what they used to be, but she has changed the way she eats so that she does not have to undertake a lot of preparation. She reported to Dr Eaton that pain has also affected her sleep.
198․Similar to the issue that arises with respect to the similarities between the Plaintiff’s historical areas of pain and her currently claimed areas of pain, there is similarity between her currently claimed and historical restrictions on her activities of daily living.
199․As at April 2020, the Plaintiff had a range of restrictions with respect to her capacity to undertake domestic chores, errands, leisure activities and work, including vacuuming and yard work, difficulty dressing, difficulty gripping things with her right hand (such as wringing a dishcloth) and being unable to carry her shopping. She said that she had engaged a cleaner to assist her.
200․The Plaintiff’s evidence that, subject to her surgery in May 2020, she was able to perform 80% of her domestic tasks was general in nature and, given my concerns in relation to the reliability of the Plaintiff’s evidence, I am not satisfied as to its accuracy.
201․Further, and contrary to her claimed current restrictions, the extent of travel that the Plaintiff has engaged in, the activities she has engaged in whilst travelling, and the breadth of gym exercises she undertakes, particularly exercises that require her to grip and lift weights of up to 32kg, suggest that whatever impact the Incident had on the Plaintiff, it has little ongoing impact on her capacity to perform domestic chores, if any. Dr Eaton reported that the movement of the Plaintiff’s fingers appeared to be normal and her grip strength was recorded across a number of tests as being 22 to 29 kg in her right hand and 26 to 31.6 kg with her left hand.
202․Dr Eaton reported that the Plaintiff was able to make a full fist in both hands, that her finger movements were all reasonably full, that her thumb movements were reasonably full, and that opposition of the thumbs to all fingertips was normal on both sides. Dr Eaton opined that the Plaintiff’s prognosis was reasonably good for further improvements in her condition, full resolution of her symptoms, and a return to normal functional capacity for her usual day to day activities. However, he also opined that post-traumatic osteoarthritis is likely to develop with time and increasing age.
203․I do not accept that the Plaintiff has difficulty sleeping as a result of the pain in her fingers and hands. As noted above, given the range of activities undertaken by the Plaintiff, particularly her gym routines, I do not accept that the Plaintiff suffers from pain of any significance as a result of the Incident, if any. I also note that the reason the Plaintiff gave her general practitioner on 31 August 2021 for being unable to sleep was not that she was in pain, but because of anxiety, which at that time was related to her employment. In circumstances where the basis for the worker’s compensation claim that the Plaintiff submitted in January 2023 was psychological stressors arising from regulatory proceedings brought against the Plaintiff, which led to her suffering an adjustment disorder in mid-2022, it would seem far more likely that ongoing anxiety is the cause of her sleeping difficulties.
204․I am not satisfied that the Plaintiff has proved, on the balance of probabilities, that she suffers from any ongoing pain of significance, or any restrictions in her activities, as a result of the Incident. I am satisfied, however, that as a result of the Incident she is likely:
(a)to develop post-traumatic osteoarthritis with time and increasing age;
(b)to have permanent loss of full flexion in her left ring finger; and
(c)to have permanent scar tissue issues in her right index finger.
Damages assessment
205․The Plaintiff was born in 1969. She is 53 years old.
206․I have set out above the Plaintiff’s medical history, the impact of the Incident on the Plaintiff, the medical treatment she has received as a result of the injuries she suffered, and my assessment of her disabilities and restrictions.
General damages
207․General damages, or non-economic loss, are awarded to compensate a person for, amongst other things, pain and suffering, loss of amenities of life, loss of expectation of life and disfigurement (see section 99 of the Wrongs Act).
208․The Plaintiff submits that a figure of $120,000 for general damages is appropriate, having regard to the significant level of pain that the Plaintiff initially suffered (at the time of the Incident and over the ensuing months) and to the infection of her wound which led to increased pain levels. She notes that she underwent three surgical procedures and numerous attendances on medical practitioners. The Plaintiff relies on the decision of Magistrate Stewart in Mcintosh v Canberra Choral Society [2022] ACTMC 16 as a case she says is instructive as to the appropriate sum to be awarded for general damages.
209․In that case, Ms Mcintosh suffered:
(a)a displaced fractured wrist, fractured kneecap, permanent aggravation to the left shoulder;
(b)pain, limitation of movement and loss of function, requirement for surgery, multiple x-rays, CT and MRI scans, physiotherapy and requirement for assistance;
(c)the possibility of further surgery to remove a plate from the Plaintiff’s left wrist;
(d)a requirement to undergo radiocarpal fusion of her left wrist;
(e)an accelerated need for a total knee replacement; and
(f)a requirement to undergo left shoulder arthroplasty.
210․Magistrate Stewart awarded $120,000 for general damages, apportioned 50% for the past and 50% for the future.
211․In my view, the impact on the Plaintiff of the Incident, and the injuries she suffered from it, are less severe than those suffered by Ms Mcintosh.
212․The Defendant submits that a figure of $60,000 for general damages is appropriate, having regard, on the one hand, to the extent of the Plaintiff’s injuries, including the need for surgeries to insert and remove the K-wires and, on the other hand, having regard to the fact (as the Defendant submitted) that the effects of the Plaintiff’s injuries have resolved, she has regained full functioning and the Plaintiff’s ongoing complaints are explained by her pre-existing conditions. The Defendant submits, in the alternative, that any ongoing symptoms arising from the Incident are minimal.
213․I note two other cases by way of comparison: Cornwall v Jenkins as trustee for iSpin Family Trust [2019] ACTSC 34 (Cornwall) and Rhodin v Coles Supermarkets Australia Pty Ltd [2019] ACTSC 207 (Rhodin).
214․In Cornwall:
(a)the Plaintiff suffered a fracture of her left and right wrists;
(b)the Plaintiff described suffering unbearable pain in her right wrist (10 out of 10) and pain in her left wrist of 8/10;
(c)the Plaintiff underwent surgery on her right wrist;
(d)the Plaintiff was unable to work for a period as a result of her injuries;
(e)the Plaintiff’s right wrist continued to cause her difficulties for a year after the accident including, impacting her capacity to carry groceries and her capacity to undertake work;
(f)the Plaintiff suffered depression as a result of the consequences of her injuries;
(g)the Plaintiff underwent surgery to remove a plate and screws from her right wrist;
(h)the Plaintiff continued to receive physiotherapy and psychological treatment for over four years after the accident; and
(i)by the time of trial (almost five years after the Incident), the Plaintiff suffered, at most, from mild ongoing pain and discomfort in her right wrist and the possibility of indefinite pain and dysfunction of fluctuating severity. At that point in time, the plaintiff could still not pick up heavy objects, write properly or undertake tasks involving fine motor skills.
215․Mossop J awarded Ms Cornwall $130,000 in general damages, having regard to the above matters and also to the possibility that, due to her psychological vulnerability, other events in her life would have led, in any event, to a disabling psychological condition of the kind she suffered, and to the fact that, with further treatment, the plaintiff might have been able to better manage or overcome her problems.
216․In my view, the impact on the Plaintiff of the Incident, and the injuries she suffered from it, are less severe than those suffered by Ms Cornwall.
217․In Rhodin, the plaintiff:
(a)suffered from chronic regional pain disorder in her left arm, left wrist and left hand as a result of an accident;
(b)suffered bruising to her left wrist and forearm;
(c)suffered irritation of the left ulnar nerve, which caused her pain in her left arm, up until the hearing of the matter, four years after the accident;
(d)suffered right shoulder pain, as a result of overuse because of her inability to use her left arm;
(e)suffered from depression because of her pain, her inability to sleep, the restricted use of her left arm, and the associated restrictions on her life, including her ability to work;
(f)suffered from a reduced capacity to use her left hand and arm because of her pain;
(g)had a reduced capacity to perform domestic and recreational activities, including gardening, shopping, driving, cleaning and socialising; and
(h)was left unfit to return to the workforce.
218․Collier J awarded Ms Rhodin $150,000, apportioning one-third to the past and two-thirds to the future. In my view, the impact on the Plaintiff of the Incident, and the injuries she suffered from it, are less severe than those suffered by Ms Rhodin.
219․There is no doubt that the Plaintiff was in considerable pain following the Incident, and that she continued to suffer some pain and discomfort for several months in her hands, wrists and forearm afterwards.
220․It is also clear that she has had to undergo multiple procedures, including surgery at The Canberra Hospital, surgeries to remove the K-wires in her left ring finger, and scar tissue removal. It is noteworthy two of her surgeries required her to undergo a general anaesthesia, indicative of the seriousness of the surgery. Her left ring finger became infected following her initial surgery, for which she had to take several courses of antibiotics, and she also undertook hand therapy. She was restricted in the activities she could undertake for several weeks.
221․As noted above, I am not satisfied that the Plaintiff suffers from any ongoing pain or restrictions in activities as a result of the Incident. However, I am satisfied that the Plaintiff is likely:
(a)to develop post-traumatic osteoarthritis with time and increasing age;
(b)to have permanent loss of full flexion in her left ring finger; and
(c)to have permanent scar tissue issues in her right index finger.
222․I consider that an appropriate award of general damages is $90,000.
223․Interest on general damages would be $5,400 ($90,000 x 2% x 3 years).
Loss of earnings/earning capacity
224․The Plaintiff did not pursue a claim for loss of earnings or earning capacity.
Out of pocket expenses
225․The Plaintiff claims $7,620.44 for past treatment expenses. The Defendant did seek to cavil with this figure.
226․The Plaintiff did not pursue a claim for future out of pocket expenses.
Domestic assistance
227․The Plaintiff is entitled to recover an amount equivalent to the reasonable commercial cost of domestic services which have been provided in the past, and would be provided in the future.
228․In terms of past domestic assistance, the Plaintiff submits that a reasonable average for the past is two hours per week for the 143 weeks up until the hearing, at $45 per hour. In my view, the evidence does not support that claim.
229․It is simply not possible to calculate with any precision an appropriate award for domestic assistance. I accept that, for at least four weeks after the Incident, the Plaintiff was considerably affected by her injuries, and that she needed a good deal of assistance in that period. This included approximately one hour per day of assistance from her housemates at the Defendant’s house, as well as assistance organised by The Canberra Hospital (at no cost).
230․I accept that she continued to need some assistance after that time. However:
(a)the Plaintiff’s evidence was not clear as to the volume of assistance, in terms of hours, that she received after the first four weeks;
(b)the full value of the amount paid to Donna’s Cleaning Service is not recoverable, given that the Plaintiff’s engagement of that service was not entirely referable to the Plaintiff’s hand injuries; and
(c)there was no evidence led as to the appropriate hourly rate for domestic assistance, nor any submission made as to an acceptable rate. I note that in Cornwall and Rhodin a rate of $35 per hour was used (although I also note that those cases were decided four years ago).
231․The Defendant submits that a buffer of $5,000 is appropriate. That would equate to over 70 weeks at the Plaintiff’s estimate of two hours per week at $35 per hour, or approximately 55 weeks at the Plaintiff’s estimate of $45 per hour. Based on those calculations, and my view as to the limited impact that the injuries the Plaintiff suffered as a result of the Incident had on her capacity to undertake domestic activities, I consider that an amount of $5,000 is an adequate buffer in the circumstances.
232․In terms of future domestic assistance, the Plaintiff submits that an allowance of one hour per week should be made, at a rate of $45 per hour, over the 35 years of the Plaintiff’s remaining life expectancy, less 15% for the vicissitudes of life, totalling $43,529 based on the 3% tables.
233․The Defendant submits that the Plaintiff’s functioning is such that there is no immediate need for domestic assistance by reason of the injuries sustained in the Incident. This submission is consistent with my findings as to the absence of any ongoing restrictions on the Plaintiff’s activities arising from the Incident.
234․The Defendant notes that, while there is the prospect of post-traumatic osteoarthritis developing, that is not a certainty and, in any event, would not arise for many years. In this respect, the Defendant notes that, as people age, some assistance will inevitably be required. While I note that the evidence is that the Plaintiff is likely to develop post-traumatic osteoarthritis, no estimate was given as to when this was likely to occur, or how it would impact the Plaintiff, particularly in relation to other restrictions that are likely to impact the Plaintiff because of age or her pre-Incident injuries.
235․The position taken by the Defendant accordingly has merit. Nevertheless, I consider that it is appropriate to allow a buffer of $5,000 to account for the possible impact on the Plaintiff’s future capacity to perform domestic activities, of the post-traumatic osteoarthritis she is likely to develop.
Summary of damages assessment
236․Accordingly, had the Plaintiff succeeded on liability, I would have awarded damages in the sum of $113,020.44.
Costs
237․As a general rule, costs follow the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72, Primavera Holdings Pty Ltd v Golding [2018] ACTCA 30. This general rule is subject to the power of the Court to make other orders where appropriate. Ultimately, the costs of a proceeding are in the discretion of the court (see rule 1721 of the Court Procedures Rules 2006 (ACT)).
238․Subject to any application being made within seven days of the making of the below orders, the Plaintiff is to pay the Defendant’s costs of the proceedings.
Orders
239․The orders of the Court are:
(1)Judgment be entered for the Defendant.
(2)The Plaintiff is to pay the Defendant’s costs of the proceedings.
(3)Order 2 does not take effect for a period of seven days and, if within that period, either party makes an application for a different order, order 2 does not take effect until further order of the Court.
| I certify that the preceding two-hundred and thirty-nine [239] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby Associate: Mason Britton Date: 1 August 2023 |
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