Ipec Holdings Ltd v Siemers
[1991] TASSC 99
•5 November 1991
93/1991
List "A"
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: Ipec Holdings Ltd v Siemers [1991] TASSC 99; A93/1991
PARTIES: IPEC HOLDINGS LTD
v
SIEMERS, Sue
FILE NO/S: FCA 105/1990
JUDGMENT
APPEALED FROM: Siemers v Ipec Holdings Ltd B68/1990
DELIVERED ON: 5 November 1991
DELIVERED AT: Hobart
JUDGMENT OF: Underwood, Crawford and Zeeman JJ
Judgment Number: A93/1991
Number of paragraphs: 46
Serial No 93/1991
List "A"
File No FCA 105/1990
IPEC HOLDINGS LTD v SUE SIEMERS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
CRAWFORD J
ZEEMAN J
5 November 1991
Order of the Court
Appeal and cross-appeal dismissed.
Serial No 93/1991
List "A"
File No FCA 105/1990
IPEC HOLDINGS LTD v SUE SIEMERS
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD J
5 November 1991
I am in complete agreement with the reasons for judgment of Zeeman J and the order he proposes.
I would add that initially, I was of the view that the sum of $30,000.00 attributed to pain, suffering and loss of amenities of life was so high that it had led to error in the final judgment sum. This Court has traditionally taken a conservative approach in the assessment of an appropriate sum under this head of detriment. See Chenery v Cole [1985] Tas R (NC) 175. On the facts as found by the learned trial judge $30,000.00 is, at the least, at the very top end of the range of figures within which the discretion could properly be exercised. However, the ultimate question on this issue is whether, in the absence of specific error, the judgment sum of $217,023.27 is so disproportionate to the loss and injury sustained that it warrants appellate intervention. I agree with the opinion of Zeeman J that the sums assessed as compensation for lost past and future earning capacity could have been higher and this must be taken into account on a consideration of this issue as well as the sum assessed for pain, suffering and loss of amenities of life. Doing this leads me to the conclusion that the judgment sum cannot be categorised as a wholly erroneous estimate of the damage.
File No FCA 105/1990
IPEC HOLDINGS LTD v SUE SIEMERS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
5 November 1991
I agree that the appeal and cross–appeal should be dismissed for the reasons stated by Zeeman J I have nothing I wish to add.
File No FCA 105/1990
IPEC HOLDINGS LTD v SUE SIEMERS
REASONS FOR JUDGMENT FULL COURT
ZEEMAN J
5 November 1991
The respondent was employed by the appellant as a bar attendant at the Wrest Point Hotel Casino. The appellant required that the respondent use a particular staff entrance in order to gain access to her place of work. A roadway ran along the southern side of the casino building from a point adjacent to the main entrance to a lower level where the staff entrance was located. During the course of the trial this roadway appears to have been referred to as a "ramp" and the learned trial judge adopted that expression in his reasons for judgment. Whilst negotiating this roadway on her way to work at about 7.55pm on 15 July 1981 the respondent slipped and fell. As a result of her fall, she was injured. She sued the appellant for damages, claiming that her fall had been occasioned by the negligence of the appellant. The appellant denied negligence and, in the alternative, alleged contributory negligence against the respondent.
The learned trial judge found the appellant to have been negligent, and the respondent to have been guilty of contributory negligence. He apportioned liability as to 80% to the appellant and as to 20% to the respondent. He then assessed damages at $217,023.27. After allowing for the contributory negligence and deducting payments made to the respondent pursuant to the provisions of the Workers' Compensation Act 1927, judgment was given for the respondent in the sum of $129,605.95.
The appellant challenges the learned trial judge's finding that the appellant was negligent, and, alternatively, seeks to attack his Honour's assessment of the respondent's damages as being excessive. By her cross–appeal, the respondent attacks the learned trial judge's finding that she was guilty of contributory negligence. If the learned trial judge was right in finding that each of the respondent and the appellant were negligent, then neither the appellant nor the respondent seeks to challenge his apportionment.
The relevant test which fell to be applied by the learned trial judge in considering whether negligence on the part of the appellant had been established was authoritatively laid down by the High Court in Wyong Shire Council v Shirt (1979–1980) 146 CLR 40, and in particular in the judgment of Mason J (with whom a majority of the members of the of the Court concurred) in the following terms, at p47:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far–fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
The learned trial judge made extensive findings of fact. It will be sufficient if I repeat those findings (insofar as they are relevant to the issue of liability) in the following terms:
"... Except insofar as I indicate to the contrary my narrative of events may be taken as being my findings of fact.
The plaintiff commenced employment at the Casino about a fortnight before her accident. She was aged 23 years at the time. When she first took up her job she was told by the Personnel Manager that she had to wear high heels on her shoes at work and that she must use the entrance at the bottom of the ramp both to enter and leave the Casino. She was warned that breach of this rule would result in instant dismissal.
On the evening in question she was wearing a pair of shoes which she had owned since 1977. These were wedges with a heel about 1½ to 2 inches high. The uppers were of patent leather with straps (I infer across the instep). The sole was a synthetic type of material. Whether it was smooth like leather or otherwise I was not told. There were rubber tips upon the heels. The shoes themselves were not produced in evidence, nor was I shown a photo of them. What has become of them is not clear. The plaintiff said that she was accustomed to wearing these shoes during the course of her work as a barmaid at the British Hotel in Adelaide where she had worked before coming to Tasmania, even on occasions when there was 'beer all over the floor' or when she was working 'really fast'. She could not remember slipping or falling whilst wearing those shoes prior to the accident and she did not believe that they contributed in any way to her fall. Mrs Siemers said, 'they were very comfortable, they were ... my favourite pair'.
In the absence of the shoes themselves I must exercise what imagination I have to conjure a vision of them for present purposes. The 'wedge' shape described by the plaintiff suggests a sole lacking flexibility although not perhaps suggesting anything approaching the clog like stilts which were in vogue in the 1960's. As to the heel height it may be said,
'It is certainly not a flat heel, but neither is it one of those elegant structures on which modish women manage to hobble so successfully'
(see Crisp J Turner v Scenic Motels Pty Ltd 69/1967 at p6). It seems to me that such a shoe is not inherently unstable and is not likely to predispose a female wearer to stumble, slip or trip.
…
These were not special working shoes and it is unreasonable in my view to expect female staff to provide a change in footwear to negotiate the entrance to their workplace unless they have been specifically instructed to do so.
Whilst I am confident that the plaintiff would not have fallen had she been wearing gymboots, sandshoes or the like I am equally confident that the shoes she was wearing were within the normal range of female footwear that her employer should have anticipated would be worn by young women coming and going to the staff entrance.
The plaintiff said that she always exercised caution on the ramp and on the evening in question she was walking down at what she considered to be a comfortable and safe speed. She said she was hanging on to the rail on her left hand side and was carrying her handbag in her right hand. She said that she relinquished her hold upon the rail on two occasions because of the presence of bushes overgrowing the rail. She remembers taking her hand off the rail, walking a little further and then slipping and landing awkwardly as I have described above. She was cross examined as to her allegation that the handrail was overgrown. It was pointed out that she made no mention of this factor in the reports which she had submitted in relation to the accident and there were no contemporaneous records to substantiate her claim. Furthermore Mr Peter Browne, the Security Manager at the Casino, at that time could not recall foliage growing over the handrail at any time during several years that he was on the staff. The photographs tendered in evidence although taken in about September 1982, some 14 months after the accident, tend to support the defence submission that the handrail was not overgrown at the relevant time particularly along the section leading down to the point where the plaintiff fell. The plaintiff claimed that on feeling herself falling she reached out to the handrail for support and I think it quite likely that she did so, but it was only in re–examination that she claimed that her left hand had been scratched by the bushes in the course of this attempt to maintain stability.
All in all I am left in considerable doubt as to this aspect of the plaintiff's case and I am not prepared to find that the handrail was obstructed in the manner alleged.
The plaintiff said that she had never received a warning as to the use of the ramp from her employer before the fall. However some days after the accident she spoke to the personnel manager, Mrs Langridge, about the matter and
'she said that ... my fall was unfortunate and they knew it was slippery, and she said that they had been thinking about carving steps in the ramp for the staff to walk down but that would make it more difficult for the delivery trucks to manoeuvre going up and down the ramp, and she said that they were going to rebitumenize it... She just said that she knew it was slippery, that other people there had fallen and she knew it was slippery and so that they were going to do something about it'.
As already mentioned the plaintiff said that when she returned to work after the accident she found 'That they had put that new bit of bitumen down, It's about 3 feet wide, down by the side of the rail'. She indicated this area in the photographs.
…
… I find that such a conversation did occur in substantially the same terms recounted by Mrs Siemers.
Mr Peter Browne's evidence was also of some importance in relation to these issues. He confirmed that for security reasons Casino staff were required to use the lower entrance to the building. His evidence also demonstrated that the only feasible way of reaching that entrance was (and still is) by descending the ramp. He recalled that the portion of the ramp adjacent to the handrail had been resurfaced about two years before he swore an affidavit in answer to interrogatories in July 1983 but he was unable to say whether this had occurred before or after the plaintiff's mishap. He agreed that the fresh bitumen strip had been laid on his suggestion 'As a result of my recommendation, I believe that piece of hot mix was put there. It came about from a number of complaints I'd received from staff members in relation to the slipperiness, slippery surface'. He also conceded that it was possible that the plaintiff's fall was one of the factors which led to the decision to resurface the strip.
Mr Eakins, Group Administration manager at the Casino was called to prove that the defendant's records did not show that this resurfacing work had been carried out at about the time alleged by the plaintiff but, significantly, those records did not show that the job had been performed at any other specific time. In short there are no records showing when it was done. In these circumstances I have no reason to doubt the plaintiff's evidence and I find that the resurfacing was carried out between the date of her fall and the date on which she returned to work.
The plaintiff made it plain that at the time of her fall the ramp surface was dry. It is also apparent that she does not claim to have slipped on any foreign substance on the ramp.
In the answers to interrogatories already referred to, Mr Browne conceded that on the date of the accident the surface was 'slippery' and further that 'It is naturally slippery because of its steepness and bitumen surface'. In his oral testimony Mr Browne qualified this seemingly damaging admission by saying 'It was slippery when it was wet'. Asked about its condition when dry he said, 'I didn't feel that it was anymore slippery than any other roadway or walkway with the same descent'. He agreed that 'It was certainly improved after the hot mix was put on'.
Both he and Mr Eakins said they had no recollection of any one apart from the plaintiff falling and injuring themselves on the ramp. Mr Browne said that there were about 700 full time and 700 or 800 part–time staff members working at the Casino in 1981.
Mr Eakins said that, although he had never fallen over on the ramp 'my footing has moved from the ramp ... during wet conditions'.
…
It is clear enough I think that answers to interrogatories are informal admissions only and may therefore be explained or qualified by other evidence at the trial (see Cross on Evidence 3rd Ausn Edn paras 2.28 and 9.6).
However regard must be had to the whole of the evidence bearing upon the ramp's condition at the relevant time and in this respect the evidence of Mr Roger Locke should not be left out of account. He inspected the ramp on 6 April 1990. He described the surface as 'a fairly open textured bitumen surface, most likely an asphalt'. He took no measurements of friction factors but 'it was quite apparent that the footpath' (ie the bitumen strip referred to previously) 'was much more skid resistant than the road surface itself'. He found the slope to be '1 vertically to 6.4 horizontally at one location and 1 vertically to 6.6 horizontally at the other' giving an average slope of about 8.75o .
He referred to an Australian Standards Association Code for walkways, stairways and ramps in which it is suggested that an uncleated walkway is suitable only up to a slope of 7o or 1:8. Above that slope there should be cleating. He concluded, 'It appears to me that in light of the information in the Code and the Building Regulations that this ramp would be too steep to provide safe regular access.'
When asked in cross examination he said that he found the road surface slippery when dry whilst wearing leather soled shoes. He said, 'I found it quite easy to slide the foot along it'.
I should add that I visited the scene with counsel and whilst I must say that the ramp did not appear to be particularly steep to my unpractised eye I can appreciate that female staff members walking on the original surface in high heels may have difficulty in maintaining a sound footing even in dry conditions."
Having made those findings of fact, the learned trial judge correctly directed himself as to the law in accordance with Wyong Shire Council v Shirt (supra) and then expressed the following conclusions:
"... Although there is no evidence that other employees had injured themselves whilst using the ramp there is strong evidence that it was a source of complaint and was regarded as a potential danger particularly when wet. There is no evidence to suggest that the plaintiff was hurrying, was unusually clumsy or was wearing inappropriate footwear. In my opinion the probability is that her fall was caused by a combination of the excessive slope on the ramp and the smooth surface. Certainly the plaintiff may not have fallen had she been maintaining a loose grip upon the handrail as she descended the ramp but I regard this as relevant to contribution rather than the defendant's primary liability because it must have been foreseen that employees would not always avail themselves of the support and, in any event, there must be occasions when it is impracticable for them to do so, for example when carrying something in both hands.
In my opinion the defendant should have foreseen the risk of injury to an employee using the ramp even in dry conditions and should have taken steps to guard against such an eventuality.
Resealing the area adjacent to the handrail was an obvious method of confronting and avoiding the problem and this solution was in fact essayed soon after the plaintiff's unfortunate experience.
I am therefore of the view that the defendant was negligent and is liable to the plaintiff."
The notice of appeal, by Ground 1, sought to attack certain of the learned trial judge's findings of fact, the weight or lack of weight given to certain evidence and his ultimate conclusions on the issue of liability. That ground was in the following terms:
"1That the learned trial judge erred:
(a)In finding or holding that the Defendant was negligent.
(b)In finding or holding that there was a foreseeable risk of injury to an employee using the ramp in dry conditions.
(c)In finding or holding that the ramp was a source of complaint and was regarded as a potential danger when it was dry.
(d)In drawing an inference as to the ability of employees to negotiate the ramp as it might have existed at the date of the accident from observations made by His Honour in the course of the view taken by His Honour.
(e)In finding or holding that female staff members walking on the original surface in high heels may have difficulty in maintaining a sound footing even in dry conditions.
(f)In finding or holding that there was an excessive slope on the ramp.
(g)In finding or holding that there was a smooth surface on the ramp.
(h)In finding or holding that the Plaintiff's fall was caused by a combination of an excessive slope on the ramp and a smooth surface.
(i)In finding or holding that resealing of the area adjacent to the handrail was an obvious method of avoiding a risk of injury to employees using the ramp.
(j)In finding or holding that the surface of the ramp adjacent to the handrail was resurfaced soon after the Plaintiff's accident.
(k)In failing to give any or sufficient weight to evidence to the effect that complaints and warnings about the condition of the ramp before the Plaintiff's accident were confined to its condition when wet.
(l)In giving weight or undue weight to the evidence of Mr Locke.
(m)In giving weight or undue weight to Mr Locke's evidence as evidence bearing upon the condition of the ramp at the relevant time.
(n)In giving weight or undue weight to the Australian Standards Association Code AS1657–1974."
Paragraphs (a) and (b) are directed to the learned trial judge's ultimate conclusions and it is appropriate to return to those once the matters referred to in the other paragraphs have been considered, which I now proceed to do.
It is implicit from the learned trial judge's findings of fact that he did find as set forth in para(c). The linking of the two matters referred to in this paragraph may have been intended to suggest that the learned trial judge found that there had been complaints about the roadway in a dry condition. However, such a finding would not have been open on the evidence, and the learned trial judge did not so find. The evidence of the respondent as to what she was told by Mrs Langridge and the evidence of Mr Browne, referred to in the learned trial judge's findings of fact, fully supported a finding that the roadway was a source of complaint. Whilst the respondent's evidence was of a hearsay nature, it was admitted without objection, and the learned trial judge was entitled to give it such probative value as he thought it deserved. Whilst the evidence of Mr Browne was silent on the question as to when complaints had been received, it was open to the learned trial judge to infer that at least some of those complaints had been received prior to the respondent's fall. The respondent's answer to an interrogatory in which it said that the ramp was "naturally slippery because of its steepness and bitumen surface" was material upon the basis of which the learned trial judge was entitled to conclude that the roadway was a potential danger insofar as pedestrians were concerned even when dry. Mr Browne's explanation of this answer in his oral evidence did not significantly derogate from what was a most damaging admission. To suggest, as he did, that it was no more slippery when dry than any other roadway or walkway with the same slope, was no answer. It begged the question. The answer to the interrogatory was indicative of the roadway having been seen as a source of potential danger by the appellant regardless of whether it was dry or wet. The learned trial judge's findings were proper findings.
Paragraph (d) attacks the use made by the learned trial judge of a view. His Honour inspected the area of the roadway in the company of counsel. The basis upon which he embarked upon the view was the subject of discussion between his Honour and counsel at the commencement of the trial. It was agreed that a view would be taken so as to enable his Honour to understand the evidence but that it would not constitute evidence in itself. In proceeding to take a view upon that basis, the learned trial judge proceeded in accordance with long established practice. A useful discussion of the nature and purpose of a view is to be found in the article by E Solomon "Views as Evidence" (1960) 34 ALJ 46 and 66. In Scott v Numurkah Corporation (1954) 91 CLR 300 at p313, the High Court approved the rule that:
"... a view is for the purpose of enabling the tribunal to understand the questions that are being raised, to follow the evidence and to apply it, but not to put the result of the view in place of evidence".
Whilst that undoubtedly is the purpose of a view properly so described, misunderstanding has resulted from an assumption that because the tribunal of fact looks at something out of court, what occurs is necessarily a view. Plainly, that is not so. When that which is shown at the "view" is something admissible as an exhibit upon the trial were it convenient to have it brought into court, then that which is inspected may be real evidence. An example is provided by London General Omnibus Co Ltd v Lavell [1901] 1 Ch 135 where omnibuses were examined in the yard of the court, it obviously being inconvenient to bring them into court. The roadway the subject of the present case might well be considered as having been amenable to a "view" of the latter type. In that case, it would have been evidence. Nevertheless, the express basis upon which the view occurred precluded the learned trial judge from treating anything that he saw as being evidence in the case. I do not consider that the use which the learned trial judge made of the view transgressed beyond permissible limits. It should be remembered that photographs of the area of the roadway had gone into evidence. His reference to the slope (which incidentally might be seen as favouring the appellant and about which the appellant did not complain) was no more than an indication of an understanding of the evidence that the slope was from 1 vertically to 6.4 horizontally to 1 vertically to 6.6 horizontally. His Honour's reference to the "original surface" is not indicative of his having substituted what he saw for the evidence relating to the surface at the time of the respondent's fall.
The rather tentative conclusion expressed by the learned trial judge sought to be challenged by para(e) was fully supported by the evidence. The respondent called a professional engineer, Mr R S Locke. Mr Locke gave evidence that he inspected the relevant area shortly before trial. At the time of that inspection, the physical characteristics of the area were somewhat different from those existing when the respondent suffered her injury. What had been a roadway with a more or less uniform surface had had placed upon it a non–slip material along the portion closest to the casino building so as to form a distinct pathway for pedestrian traffic. Mr Locke was asked about the surface of the roadway and the following exchanges occurred:
"QThe surface on the roadway as distinct from the pathway if I can delineate them that way, on the road at the casino is itself not a slippery surface when dry is it?
AI found it so wearing leather soled shoes, I found it quite easy to slide the foot along it.
QYes, but you mean as a deliberate motion?
ATo the extent that I wouldn't like to walk down it with leather soled shoes without some form of support."
Whilst that evidence, standing alone, would provide little or no guidance as to what was the nature of the road surface when the respondent walked upon it, she gave some relevant evidence by reference to the photographs referred to by Mr Locke. That evidence included the following:
"HIS HONOUR: Between the time of your accident and the time those photographs were taken there have been some resurfacing apparently of the driveway adjacent to the handrail?
PLAINTIFF: That's right.
HIS HONOUR: And you said at the time of the accident it was old, very smooth bitumen. I'm not quite sure if you mean by that that it was in a different condition from the older part of the bitumen that you can see in the photographs or not. Would you like to look at the photographs and tell me if that's been resurfaced as well as the pathway or whether that was the nature of the bitumen surface that you were walking on when the accident occurred. Just hand that to Mrs Siemers will you?
PLAINTIFF: Thank you. Um, the part where it's resurfaced .....
HIS HONOUR: Well forget the resurfacing because that's been done since the accident, you tell me, but .....
PLAINTIFF: Yes, so the old part here. It looks similar but it was – it was sort of – it looked smoother then [sic] that, but I'm – it just looks – it looks smoother then [sic] that, it was very worn.
HIS HONOUR: What, it was more worn near the handrail then it is as you see it in the photograph, is it?
PLAINTIFF: Yes, it looks that way. It looks that way.
HIS HONOUR: You keep saying 'it looks that way'. I'm not sure what you mean by that. Forget the photographs for the time being except for the purpose of comparison, what I want to know is whether at the time of the accident the bitumen adjacent to the handrail was rougher or smoother or in about the same condition as the bitumen as it appears to be in the photographs?
PLAINTIFF: I would say that it was a bit smoother.
…
MR JACKSON: The roadway as shown in the photograph, and I'm looking at the vertically framed one, is that pretty much the condition that the roadway was in at the time of your accident?
PLAINTIFF: Ah, I believe so.
MR JACKSON: Right. And you are saying that there was somehow a difference between the surface out in the middle of the roadway and the surface near the handrail at the date of the accident?
PLAINTIFF: It was just a bit – it was smoother, it was like it was smoother near the rail ... Mm."
Taking the whole of that evidence, it was open to the learned trial judge to find that the surface upon which the respondent walked was somewhat smoother than the road surface inspected by Mr Locke. He found that surface one along which it was quite easy to slide the foot and one upon which he would not wish to walk wearing leather soled shoes without having some form of support. That evidence also supports the finding sought to be attacked by para(g) which does not require separate consideration. I do not overlook the respondent's evidence that she had been wearing shoes with soles consisting of a synthetic material (although a security officer's report on the incident, which was in evidence and to which the learned trial judge did not refer in this context, could have justified a finding that the respondent was wearing leather soled shoes). Any risk of injury which the appellant should have foreseen ought not to be circumscribed by reference to the nature of the soles of its employees' shoes.
A finding that "there was an excessive slope on the ramp" is meaningless standing alone so that para(f) does not require separate consideration. The learned trial judge's reference to an excessive slope was in the context of the finding sought to be attacked by para(h). The use of the adjective "excessive" to describe the slope neither adds to nor detracts from the learned trial judge's findings. In reality, he did no more than to conclude that the gradient combined with the road surface were causative of the respondent's fall and that in that sense the slope was "excessive". The respondent gave some evidence about her fall, as follows:
"QNow do you remember how it came about that you slipped?
AWell I just remember just holding the rail and then taking my hand off and then just – I keep walking and I slipped and that's all.
QAll right and what happened when you slipped?
AI – well I can tell you how I landed.
QHow did you land?
AI landed with my left foot out in front of me and my right foot underneath me. In fact I landed on my heel of my right foot first and then went on to the bitumen and I dropped the handbag and tried to cushion my fall with my right hand, sort of, to try and stop yourself from landing heavily."
None of that evidence was challenged in cross–examination. Taken in conjunction with the evidence of the gradient and the slippery nature of the surface, the learned trial judge was perfectly entitled to infer that the respondent fell as a result of a combination of the gradient and smooth surface.
The appellants did not press paras(i) and (j) and plainly his Honour's findings on the matters therein referred to were perfectly open to him.
The remaining paragraphs do not complain of particular findings of fact but of the weight which the learned trial judge attached, or did not attach to, certain evidence. Paragraph (k) proceeds upon an erroneous assumption as to the state of the evidence. Whilst it may be said that the evidence was equivocal as to whether complaints were or were not limited to occasions when the roadway was wet, the evidence did not suggest that the complaints were confined to occasions when the roadway was wet. Paragraphs (l), (m) and (n) may be considered together. I have referred to part of Mr Locke's evidence in the context of para(e). Mr Locke's evidence of and arising out of Australian Standard 1657–1974 ought also to be mentioned. It does not appear as though that standard in its terms has application to a place such as the roadway the subject of the action. It is unclear as to what use, if any, the learned trial judge made of this evidence. Whilst he referred to it in his reasons for judgment, he does not appear to have attached any particular significance to it. Certainly there is no basis for saying that he attached undue weight to it. I do not consider that the evidence relating to the standard can be taken as having affected the learned trial judge's conclusions. Even if I am wrong as to that, my own conclusions on the issue of liability are such that the evidence relating to the Australian Standard need not be considered. Mr Locke's evidence as to the slipperiness of the roadway was relevant for reasons already discussed in the context of para(e). The learned trial judge was entitled to give weight to that aspect of Mr Locke's evidence. There is no basis for suggesting that he gave it undue weight.
I do not consider that any of the challenges to the learned trial judge's findings of fact relating to the issue of liability have been made out and that the appeal on the issue of liability falls to be determined upon the basis of the findings of fact made by the learned trial judge.
Counsel for the respondents submitted that a fall by a female employee using the roadway in dry conditions ought reasonably to have been foreseen by the appellant and for that submission he specifically relied upon the following evidence:
(a)The respondent in fact fell when the roadway was dry.
(b)The report of a security officer employed by the appellant who enquired into the respondent's injury which contained the following:
"Did employee fall/slip/trip etc? Slip
.....
Was floor slippery/wet/greasy etc? Slippery
.....
REPORT BY SECURITY OFFICER
Walking towards loading bay slipped on tar surface – caught hold on hand rail but fell on back with right leg bent under. Conveyed to RHH by ambulance"
(c)Certain of the appellant's answers to interrogatories, verified by the affidavit of the respondent's security manager, Mr Browne:
"14What was the state of the
surface on the said date
[(a) the date upon which
the respondent was injured]
– was it:–
i)dry,
ii)wet, Slippery
iii)very wet,
iv)oily,
v)very oily,
vi)damp."
"26 Describe the condition of the ramp on which the Plaintiff alleges that she fell and in particular state in what way it was slippery
Ramp is in good condition. It is naturally slippery because of its steepness and bitumen surface"
(d)The gradient of the roadway apparent from the photographs in evidence considered in the context of the mandatory use of that roadway by large numbers of employees, including employees, of the category to which the respondent belonged, who were at particular risk because they were required to wear high heeled shoes at work.
(e)The Australian Standard to which I have earlier referred as being something of which an employer such as the appellant employing large numbers of employees ought to have been aware.
(f)The evidence of the respondent that the roadway was smooth.
(g)The evidence of the respondent that the appellant's personnel manager, Mrs Langridge, shortly after the respondent's fall, said that "they knew it was slippery"; "that they had been thinking about carving steps in the ramp for the staff to walk down but that would make it more difficult for the delivery trucks to manoeuvre going up and down the ramp and she said they were going to re–bitumenise it"; and "that other people there had fallen and she knew it was slippery and so that they were going to do something about it."
Whilst Mr Browne was at pains to explain the source of his information in answering interrogatory 14 as having been the security officer's report (which in turn may have been little more than a record of what the respondent had said to that officer), no such explanation was forthcoming as to the answer to interrogatory No 26. The learned trial judge was entitled to accept that answer as being a reflection of the respondent's understanding of the situation. Counsel for the appellant submitted that this answer was explained by the state of the pleadings at the time that the answer was provided. I do not consider that submission to have any merit. I do not attach any weight to the Australian Standard, but the other material relied on by the respondent, taken as a whole, suggests as compelling a conclusion that the appellant should be held liable. The appellant itself said that the combination of gradient and surface was such that the roadway was naturally slippery. When Mr Browne was asked about his own use of the roadway when dry he said that he did not feel that it was any more slippery than any other roadway or walkway "with the same descent" (I infer gradient). The appellant required large numbers of employees to transverse this roadway to and from work. It required certain classes of employees to wear high heeled shoes whilst at work. It ought to have anticipated that numbers of such employees would wear such shoes to and from work. The appellant ought to have foreseen a risk of injury, at least to such employees. The fact that public roadways within the City of Hobart might be as slippery or more slippery through a combination of gradient and road surface (relied upon by the appellant), is beside the point. No one is required to use such roadway. The respondent was required to use this particular roadway on her way to and from work. In any event, the risk of injury through the use of comparable public roadways may be perfectly foreseeable. Acting reasonably, the appellant would have foreseen a risk of injury at least to employees of the category to whom the respondent belonged, ie those required to wear high heeled shoes whilst at work. Up until the time the respondent suffered her injuries, the appellant did nothing by way of response to the risk. As his Honour found, the risk could have been significantly alleviated by quite inexpensive steps, which in fact were taken not long after the respondent's fall. What the appellant did by way of eliminating or reducing the risk of injury to its employees shortly after the respondent was injured was a reasonable response on the part of the appellant and indicative of the standard of response to be ascribed to the reasonable person placed in the appellant's position. The appellant's duty of care towards the respondent required it to take steps having the effect of the steps which it took after the respondent was injured. It did not do so prior to that time. It was in breach of its duty of care towards the respondent. The learned trial judge was correct in finding liability on the part of the appellant.
By way of cross–appeal, the respondent challenged the learned trial judge's finding that the respondent was guilty of contributory negligence. By the notice of cross–appeal, the respondent asserted that the learned trial judge erred in finding contributory negligence upon the basis that she failed to use the hand rail except in grabbing for it as a last resort to prevent her from falling when:
"(a)His Honour did not make a finding as to whether or not the handrail was too overgrown for it to be reasonable for it to be used in the vicinity of the point where the Plaintiff fell; and
(b)the Defendant failed to establish on the balance of probabilities that in the vicinity of the point where the Plaintiff fell, a reasonable person in the position and circumstances of the Plaintiff would have used the handrail without interruption."
The learned trial judge's finding as to the respondent's own negligence was expressed in the following words:
"By failing to use the handrail except in grabbing for it as a last resort to prevent her from falling I think the plaintiff must share in the responsibility for her accident. Had she kept her left hand upon it as she walked down the ramp she may well have regained her footing without falling to the ground."
Clearly, the appellant carried the onus of proof in relation to contributory negligence. It needed to establish upon the balance of probabilities (inter alia) that there was a handrail available for the respondent's use. Incidentally, that required a consideration of the respondent's assertion that the handrail was overgrown at the relevant point, which assertion the learned trial judge found not to have been made out in the context of considering whether or not the appellant had been negligent. It is correct to say that the learned trial judge did not expressly find that the handrail was available and accessible to the respondent at the relevant time. However, I consider that such a finding is implicit in what his Honour said in finding the respondent to have been negligent and that he was not in error in so finding.
As neither the appellant nor the respondent sought to attack the learned trial judge's apportionment of liability, it follows that his Honour's conclusions on the issue of liability should stand.
I turn to the question of the quantum of damages, which was also challenged by the appellant.
The learned trial judge assessed damages as follows:
" SUMMARY
1 Loss of past earning capacity
(including period covered by
weekly workers' compensation
payments) $60,000.002Loss of future earning
capacity 88,500.00
3 Griffiths v Kerkemeyer
component
Past $10,000.00
Future 5,000.00 15,000.00
4Past medical, physiotherapeutic
and chiropractic treatment paid
by plaintiff 1,807.50
5Past hospital medical nursing
and ambulance expenses paid by
defendant's insurers 11,215.77
6Future physiotherapeutic an
chiropractic expenses 2,500.00
7Future pharmaceutical expenses
for analgesics and ointments 8,000.00
8Pain suffering and loss of
amenities 30,000.00
$217,023.27
Less 20% contribution 43,404.65
$173,618.62
Less (i) Item 5 above $11,215.77
(ii) Workers' compensation
paid as per paras 2 & 3
of Memorandum of
Agreed Facts 551990 32,796.90 44,012.67
$129,605.95"
The appellant has submitted that the award of damages was manifestly excessive and that his Honour made specific errors in relation to the amounts referred to in paras1, 2, 3, 6 and 8 of the summary of damages awarded.
Counsel for the appellant submitted that the learned trial judge adopted inconsistent approaches in his assessment of damages for loss of past earning capacity on the one hand and for loss of future earning capacity on the other hand. That submission proceeded as follows. In the context of dealing with the respondent's loss of future earning capacity and clearly limited to that, his Honour found that she had lost one–third of her earning capacity. In assessing damages for the respondent's loss of past earning capacity his Honour arrived at an amount which was significantly greater than that which would have been appropriate if her loss of past earning capacity had been compensated upon the basis that during that period she had lost one–third of her total earning capacity. I do not consider there to be any inconsistency. Merely because his Honour, in the exercise of a discretionary judgment, concluded that insofar as the future was concerned the respondent had lost one–third of what otherwise would have been her earning capacity, logic does not require a conclusion that she had lost the same proportion of her earning capacity during the period prior to trial. Common experience indicates that many plaintiffs will suffer a total loss of earning capacity for some period of time immediately following an injury and will then gradually regain all or some of their former earning capacity. The argument that a percentage diminution adopted in respect of the future necessarily must apply to the past is contrary to logic, is against the weight of the evidence and is devoid of merit.
The respondent was aged 23 at the time she suffered her injuries. She completed her education at year 11. Her early employment was with a firm of solicitors and then with a firm of land brokers. Thereafter she held a variety of positions, most of them in the hospitality industry, including various positions as a bar attendant in Adelaide, Melbourne and Perth. She commenced her employment with the appellant on 2 July 1981, having recently moved to Hobart where she had undergone some of her education. Other than times spent travelling and times when she desired a holiday, the respondent had been in continuous employment since leaving school. As a child she had had the benefit of travelling overseas and spending significant periods attending schools in England and the United States. The evidence suggested that she was a person who readily found employment whenever she sought it. There is no reason to suppose but that her earnings as a bar attendant whilst employed by the appellant represented a fair measure of her earning capacity.
After her fall, the respondent was taken to the Royal Hobart Hospital where she was examined and provided with medication. She thereupon returned home to the flat which she was then sharing with her brother. She remained off work for three weeks, feeling quite sore during this period. She then returned to her position with the appellant, having been told to take it easy and to utilise the services of "bar usefuls" to perform heavy tasks such as lifting trays of glasses. They did so for some time, but the degree of assistance rendered by them gradually diminished, particularly on busy nights. The respondent continued to have time off when suffering from back pain. She last worked for the appellant on 31 October 1981 when she suffered an episode of severe pain resulting in her being taken to the Royal Hobart Hospital by ambulance. She stayed home in bed for some time and consulted a number of medical specialists. It is implicit from her evidence that she did not thereafter feel capable of returning to work at the casino. She made enquiries as to the availability of alternative employment at the casino, but this was not available. It appears that the respondent did not work again until she commenced employment in a position requiring her to train waitresses for Bertie's restaurant in Adelaide on 26 February 1985. The respondent had returned to Adelaide some time earlier. She had decided to undergo surgery. She chose to have that done in Adelaide as her parents resided there. Although the respondent did not in fact undergo surgery she continued to reside in Adelaide. The respondent continued to receive weekly payments of workers' compensation until November 1984 when she received a lump sum by way of redemption of future weekly payments. The respondent gave evidence of continuing symptoms during 1982 and 1983, painting a picture of significant disability caused by frequent severe pain. The learned trial judge was fully justified in assessing damages for loss of past earning capacity upon the basis that until the respondent commenced her employment with Bertie's restaurant, she had been deprived of a very substantial part of the earning capacity which she would have had had she not suffered her injuries. As to the subsequent period, ending at the time of trial, the evidence is that the respondent held a number of positions, most notably a position of a promotional nature with the South Australian State Opera. That employment terminated for reasons unconnected with the respondent's disability, although it had been performed with considerable difficulty occasioned by the injuries.
It was common ground before the learned trial judge that if the respondent had not suffered her injuries and had continued in her employment with the appellant until the date of trial, she would have earned from that employment a net amount of $117,475.00 in addition to that which she in fact earned from her employment with the appellant during that period (leaving aside payments of workers' compensation). Of that amount, a sum in the region of $40,000.00 is notionally attributable to the period ending upon the day upon which the respondent commenced employment with Bertie's restaurant. The learned trial judge would have been fully justified in concluding that during that period the respondent had been deprived of most of her earning capacity. As to the balance of the period up until the date of trial, it cannot be disputed that the respondent was without an important part of her former earning capacity, namely her capacity to engage in bar work and similar types of employment. Such work had formed an important part of her previous capacity to earn income. It was seen by her as potentially providing a foundation for a future career in the hospitality industry with the potential of leading to positions of a supervisory or managerial nature and attendant higher remuneration.
I do not accept the submission made by the appellant that the combined effect of the evidence of all the medical practitioners who gave evidence was that the respondent is, and for a considerable time has been, fit to perform any work of the kind in which she had been engaged prior to being injured. Mr Atkinson, an Adelaide orthopaedic surgeon who first saw the respondent on 29 March 1983, expressed the view that it would not be prudent for the respondent to engage in employment where she would be obliged to do lifting, bending and twisting. He said that the performance of that type of work by the respondent would tend to increase the risk of further injury.
During the course of the evidence of another orthopaedic surgeon, Mr Law, also called by the respondent, the following exchanges occurred:
"QYes. Can you offer any opinion as to – or by way of a diagnosis of the plaintiff's condition?
AYes, I believe that discomfort is discogenic, that is to say it's arising from a derangement or a wearing out process in the lumbar discs.
QCan you say anything as to the cause of that derangement or wearing out of the discs?
AWell having heard the story of the injury in 1981, plus subsequent flare–ups, I attribute a great deal of her present discomfort to what happened when she fell."
Mr Law later expressed the view that he did not consider that the respondent was able to perform the functions of a waitress in a restaurant.
A third orthopaedic surgeon called by the respondent expressed the general view that:
"... anybody with a disc disruption would not want to work where they were required to do heavy work, where they were required to do perhaps a lot of domestic work, where they were required to lift a lot or bend a lot or work in confined spaces."
Whilst it might be said that Mr Schaeffer, an orthopaedic surgeon called by the appellant, disagreed with some of the opinions expressed by the surgeons called by the respondent, the views which he expressed were rather tentative, and in any event, the learned trial judge was not bound to accept them. The learned trial judge was entitled to assess damages upon the basis that the respondent had suffered significant disability. He was entitled to conclude that that disability was of a continuing nature and precluded the respondent from working as a barmaid or a waitress. Her opportunities for employment were thereby significantly circumscribed. Those limitations continued even after she commenced employment at Bertie's restaurant. Her subsequent employment history was marked by periods of unemployment. Whilst her disabilities could not be said to have been directly causative of her ceasing to hold various positions which she did obtain, unemployment for whatever reason is a feature of modern society and a severe physical limitation restricting the type of work that a person is able to perform is clearly productive of loss. The amount which the respondent would have earned had she continued in her employment with the Casino from 26 February 1985 until the date of trial would have been a net amount of about $75,000.00. In the light of the views which I have expressed as to the respondent's loss of earning capacity in respect of the period prior to 26 February 1985, that portion of the sum of $60,000.00 awarded, which might be said to be attributable to the latter period, is plainly within the proper range. Indeed, I would describe it as modest.
I do not consider it necessary to canvass the various mathematical calculations performed by counsel for the appellant which were said to demonstrate error on the part of the learned trial judge. I am not persuaded that any error has been demonstrated. One calculation proceeded upon the basis that if the respondent had suffered a loss of one–third of her earning capacity, one calculated the damages attributable to loss of past earning capacity by way of being one–third of the difference between the amount which the respondent would have earned had she remained in the appellant's employ and the amount which in fact she did earn from various forms of employment. The latter amount is irrelevant because it is only indicative of the extent to which the remaining earning capacity has been utilized. The fallacy is illustrated by a simple example. A plaintiff's past earning capacity is valued at $100,000.00. Half of that capacity is lost. The remaining half is fully utilized so that the plaintiff earns $50,000.00. Such a plaintiff's damages for loss of past earning capacity must be assessed at $50,000.00. If the appellant's submissions were to be accepted such damages would be assessed at one half of the actual loss, ie $25,000.00.
Little more needs to be said in relation to the learned trial judge's assessment of loss of future earning capacity. I have already referred to the limitations placed upon the respondent's capacity to take up employment by reason of her injuries. Her disabilities may be taken as being of a permanent nature. It must not be overlooked that the learned trial judge also made a significant reduction by way of an allowance for contingencies in the figure of 20%. I do not consider that the basis upon which the learned trial judge assessed damages for loss of future earning capacity can be categorised as being other than perfectly reasonable and well within proper limits. The respondent has a significant disability, severely limiting the types of employment open to her. To quantify that by reference to one–third of what she would have earned if she had remained in the employ of the appellant is reasonable. The discount of 20% was a proper discount having regard to the relevant contingencies of life, including the fact that the respondent was a single woman who might, at least for some period, wish to withdraw from the workforce.
In the result, I see no reason to interfere with the learned trial judge's assessment of damages for loss of past and future earning capacity. I consider that the amounts assessed were moderate. The learned trial judge could have assessed somewhat greater amounts without them having been excessive.
I turn to the damages awarded by the learned trial judge upon the basis of Griffiths v Kerkemeyer (1977) 139 CLR 161. The parties placed before the learned trial judge agreed figures as to the cost of services of the type which might have been provided to the respondent over the period 1981 to 1989. By the use of those figures, it is possible to say that an allowance of 2.3 hours per week over the period of nine years up until the date of trial would result in an award of approximately the amount in fact awarded by the learned trial judge in respect of past services under this head. The use of the tables which were in evidence indicate that the amount awarded in respect of future care represents about $5.00 per week (or less than half an hour per week at 1989 rates) from the date of trial until the respondent attains the age of 60. Whilst the evidence was not extensive, there was evidence of services, initially rendered by the respondent's brother and more recently by her de facto husband, of a type properly described as representing care and going beyond tasks which one would normally expect to be performed by other members of a household. The calculations which I have set forth indicate that only minimal amounts have been allowed under this head. There was a basis in the evidence to make some allowance. I cannot conclude that the learned trial judge was in error in awarding the amounts which he did award.
The respondent gave evidence that she planned to continue attending a chiropractor and that she would undergo some physiotherapy. She expressed a disinclination to undergo surgery, although she did not rule out the possibility. The appellant submitted that no allowance for future physiotherapeutic and chiropractic expenses should have been allowed. The amount allowed under this head, $2,500.00, was modest. There was evidence that each visit to a chiropractor cost $22.00. It is not unreasonable for the respondent to seek relief from her pain. She has found temporary relief in the past by resorting to the services of a chiropractor. I see no reason to disturb the modest amount allowed by the learned trial judge under this head.
The final amount which was challenged was the sum of $30,000.00 awarded in respect of pain, suffering and loss of amenities of life. In dealing with this part of the claim, the learned trial judge made the following findings:
"As to pain, suffering and loss of amenities, the plaintiff gave evidence that prior to coming to Hobart in 1981, she was involved with the Adelaide Rowing Club and she intended to resume competitive rowing with the Buckingham Rowing Club in Hobart. She was also fond of walking, both generally and in the bush, and she participated socially in touch football, skating and occasional horse riding. She was fond of swimming when she lived in Adelaide before 1981, and used the pool at her parents' home. She has not participated in any of these activities since her accident with the exception of walking, but even this activity is limited at the present time. Oddly enough she has found that swimming exacerbates the pain in her back. Swimming is usually regarded as good therapy for a back injury, but the plaintiff's experience suggests that she should not be undertaking this activity in future. When she returned to live with her parents in Adelaide, she tried cycling in the hope of regaining her fitness, but she found this caused her back to 'play up' so she stopped. Before the accident she tried scuba diving once and played ten pin bowling occasionally. As a result of an experience when she used scuba equipment for a promotional event in Adelaide, she has decided that further activity of this kind is out of the question. Similarly she has tried ten pin bowling once, but was unable to finish the game. She goes dancing with her husband from time to time, but as she said, 'I always pay for it in the end'. From this I infer that she experiences discomfort in the back after undertaking this activity.
As she and her husband are presently childless, it is not possible to say with any certainty how bearing children and caring for them will affect her back condition. However, I infer that if and when she has a young family, there will inevitably be physical stresses upon her lower back which will cause discomfort or pain. She said that she finds difficulty with numerous household tasks, such as vacuuming and hanging out the washing. She also finds it taxing to carry heavy bags of shopping. In addition to analgesics, chiropractic treatment and manipulation of her back by her husband, the plaintiff obtains some relief from back symptoms by taking a hot shower. She claims that she has suffered emotionally over the years and at one stage was drinking 'far too much' in an attempt to overcome the pain in her back. She has also gained a good deal of weight. The plaintiff has been married since 1987 and although she and her husband enjoy a good relationship, her back condition interferes with their sexual activity to some extent. Generally speaking, however, her husband is very supportive and helpful to her. In my opinion, a proper amount for pain, suffering and loss of amenities is the sum of $30,000.00."
All those findings of fact are unexceptionable. It must be borne in mind that the respondent was aged 23 at the time that she suffered her injuries and that her disabilities are of indefinite duration. It is likely that she will continue to suffer from her disabilities for many years. On the other hand it may be said that the respondent has continued to enjoy the ordinary amenities of life to some degree. I consider the sum of $30,000.00 to be a high figure by way of compensating the respondent for her non–pecuniary losses. Nevertheless I have concluded, not without substantial doubt, that it cannot be said to be a wholly erroneous estimate so as to demonstrate non–specific error on the part of the learned trial judge. The specific errors alleged are not made out.
The views I have expressed as to the appellant's challenges to the assessment of various heads of damage make it plain that I do not consider that the ultimate award of damages was manifestly excessive.
I would dismiss the appeal.
0
2
0