| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : JONES -v- DARKAN HOTEL [2013] WADC 70 CORAM : KEEN DCJ HEARD : 15-18 JANUARY 2013 DELIVERED : 17 MAY 2013 FILE NO/S : CIV 1366 of 2011 BETWEEN : LYNDA JONES Plaintiff
AND
DARKAN HOTEL
Defendant
Catchwords: Negligence, Occupiers Liability Act 1985 and Civil Liability Act 2002 - Interaction between competing or complimentary jurisprudence Legislation: Nil Result: Action dismissed
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Representation: Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr A P Hershowitz
Solicitors:
Plaintiff : CLP Legal
Defendant : SRB Legal
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Dept of Housing and Works v Smith (No 2) (2010) 41 WAR 217
Jones v Bartlett (2000) 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Jongen v CSR Ltd (1992) ATR 81-192
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
Smith v Leurs (1945) 70 CLR 256
Town of Mosman Park v Tait (2005) 141 LGERA 171
Town of Port Hedland v Hodder [No 2] [2012] WASCA 212
Watch Tower Society v Sahas (2008) 36 WAR234
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1 KEEN DCJ: On 30 October 2009, in the late afternoon, Ms Jones was playing pool in the bar of the Darkan Hotel. She alleges that as she was leaning over the pool table to take a shot, David Wright, a regular patron of the hotel, tripped her from behind and she twisted and fell to the floor landing on her buttocks, back and right shoulder. As a result she claims to have suffered injury to her lumbar spine, aggravation of pre-existing problems to the right shoulder and psychological distress.
2 The case as put against the hotel is that Mr Wright had a long-standing propensity to indulge in unruly and disorderly behaviour at the hotel including attempting to trip patrons and that the proprietor of the hotel was aware of that propensity and had failed to take any steps to address the risk of injury arising from such behaviour.
The hotel 3 The hotel is adequately depicted in five photographs (exhibit 1). It comprises a single bar with a door leading to an outdoor area or beer garden. 4 Within the bar area itself there is the counter or bar which runs the length of the room with high stools/chairs adjacent to the counter. There is a pool table in the bar area closer to the door which leads to the outdoor area. At the other end of the bar there are doors, both on the customer side of the counter and the serving side, leading to other areas of the hotel. 5 At the material time the proprietor of the hotel was Vincent Alan Angelo and the manager was Lindsay Schumack.
The incident 6 In her evidence-in-chief Ms Jones said that she was playing pool with Noel Brewster. She was standing at the end of the pool table close to the corner nearest to the door to the outside area. She was leaning over the table preparing to take a shot. In this position she demonstrated her left leg to be forward and her right leg stretched out behind her. 7 She said that Mr Wright was at the doorway to the outside area. She said that he tripped her from behind and she twisted and fell between the end of the pool table and the sliding door leading to the outside area. 8 Her playing partner, Mr Brewster, was sitting on the stool at the bar to the far right of the bar as shown in photograph number 2. In cross-examination she agreed that he would have seen the incident. (Page 4)
9 Under cross-examination she agreed that she did not observe Mr Wright hit her. She described being hit above the ankle area in the right leg. She turned to the right so that she was then facing the bar area and fell back. She said that she presumed that it was Mr Wright's foot because that is what it felt like; she said it could have been a leg. 10 Ms Jones said that after she fell Mr Wright was standing over her laughing and pulled her up by the right arm. She said to him words to the effect, 'why the hell did you do it'. Mr Wright laughed and said, 'I picked you up didn't I'. 11 She said that Mr Schumack was at the bar. Serving behind the bar was Tracey Wallis. When she got up Ms Jones looked at them and they just left the bar area. 12 After speaking to Mr Brewster, she collected her belongings and left. 13 In cross-examination she denied that she had tripped over Mr Wright's foot when she stepped back from the pool table; she was leaning over the table. 14 Noel Brewster said that on a Friday night at the end of October 2009 he was playing pool with Ms Jones. He described her as moving back from the table to position herself for a shot when she was tripped by Mr Wright. 15 He said that Ms Jones was holding the cue stick in her right hand. She was moving backwards trying to position herself for her next shot. He gave a demonstration of this in court showing her to be, as he estimated, about 4 feet from the corner of the table. 16 As she was moving backwards Mr Wright, who was on her left, put his foot out. His foot was above the ground. In cross-examination when questioned about the position of Mr Wright's foot in relation to the ground he said it must have been off the ground because if it was on the floor 'how could he trip her'. He said it was a deliberate trip. 17 He said that she fell onto her bottom first and then stretched out on her back. 18 He said that he was certain Mr Wright lifted her up by her left arm and she called him a 'stupid idiot'. He, Mr Wright, was smiling. 19 He said that he was on a stool which he described by reference to photograph number 2 as the third or maybe the second stool from the (Page 5)
right. That was his usual position. He said that the pool table was 4 to 5 feet from him. In cross-examination said that the distance from the corner pocket of the table to the last stool was probably 12 feet. 20 He said that Ms Jones was moving backwards when she fell. Her hands were not on the table. 21 He placed Mr Wright at the end of the pool table and on another copy of photograph 2 showed that to be in a position approximately adjacent to the top right-hand pocket of the table and in front of the Coca-Cola sign on the sliding door. He was standing about 2 feet from the table. He said that the table was approximately 3' 6" wide and that Mr Wright was about 2 feet away from one corner and Ms Jones about 4 feet from the other corner. 22 He said that Mr Wright moved forward and stuck his right foot out and put his foot on to her left ankle or left leg. 23 He said that Ms Jones fell backwards onto her bottom and was stretched out on the floor. She landed on her buttocks. He said that her head was pointing towards the stools - either the last or the second last stool from the right shown in photograph 2. Her head and shoulders were at the door and facing towards the bar area. 24 In further questioning from the bench about the position of Ms Jones after the fall he depicted on a spare copy of photograph 2 the position of Ms Jones by way of a stick figure. He showed a small stick figure which seemed to be going from the back left-hand pocket towards the silver table shown in the photograph under the noticeboard to the left of the door. 25 In further cross-examination on that point he confirmed that her head was not pointing towards the television shown in the photograph. 26 He was also asked about the distance between the corner of the pool table in the door leading to the outside area. He said that it was about the length of two cue sticks and agreed that the sticks shown in photograph 4 were the same. In that photograph they are shown resting at an angle on the table which he said is approximately 7 feet long. 27 Lindsay Schumack said that he usually started work about 5.00 pm. 28 As far as he was aware nothing happened on the night in question. He did not see the incident nor was it reported to him on that night. (Page 6)
Further, he was asked about the plaintiff's evidence of her looking at him and his looking away and said he had no idea about that. 29 Vincent Allen Angelo said that he generally worked the day shift until about 5.30 or 6.00 pm. On the day in question he said that he did not see the incident and the first that he learned of it was some three or four days later when Ms Jones' husband, Woodie, told him she had been injured. 30 His evidence was that he asked Mr Schumack and Tracey Wallis about the incident and he understood they had not seen it. 31 Tracey Wallis worked as a barmaid at the hotel. She described where she would usually position herself that is to say to the left of the bar shown in photograph 3, from which position she could see the whole bar. 32 She was on duty on 30 October 2009 and said that she did not see any incident. She also said that Ms Jones had not looked at her. She (Ms Wallis) had not walked out of the bar as she did not see anything. She said that had she seen Ms Jones trip she would have gone over to see if she was all right. No-one reported the incident to her, she said. 33 Under cross-examination she agreed that nothing happened that night to make her remember what happened. She would have no particular memory of the night. She also said that she had no memory of seeing Ms Jones that night at all. 34 Having made those concessions to counsel, she was taken to a statement that she had made on 31 January 2011. In that statement she said that she was on duty on 30 October 2009 and said 'I remember Lynda was playing pool with Noel Brewster, Kiwi Dave, Vicki Beresford, Pistol Pete …'. Counsel again asked whether her evidence was that she still did not remember anything about that night to which she replied that she did not remember anything happening on that night. She went on to say that she recalled 'bits and pieces' being the matters set out in her statement. 35 She said she was able to remember what happened to the extent that Ms Jones was playing pool with these people even though nothing else happened that night. She did not remember when Ms Jones left the premises. She said she saw her after she had been playing pool. She said that she was playing pool all night until Ms Wallis left at 10 o'clock or 10.30 pm. (Page 7)
Mr Wright's propensity to engage in unruly and disorderly behaviour 36 Ms Jones in her evidence said that from time to time she worked at the hotel and she knew Mr Wright. 37 She said that there had been three previous occasions when Mr Wright had tried to trip her. She said that on one occasion, about six to eight weeks before the incident, she was collecting plates and he hit her in the back of the right knee. She called him a 'bloody idiot'. 38 On another occasion he put his foot in front of her as she was walking. Again she appears to have abused him. 39 On the third occasion, about two to three months before the incident the subject of these proceedings, she was collecting glasses. She was walking from the window depicted in photograph 3. Mr Wright was playing darts and Mr Schumack was seated at the silver table shown in the photograph between the serving area and the window. She said that as she went past Mr Wright he put his leg out and nearly tripped her. 40 On this occasion, she said that she said to Mr Schumack 'for God's sake say something to him'. She said that he just shrugged his shoulders and smirked at her. 41 Under cross-examination she said that she had never seen anyone fall when tripped by Mr Wright. She referred to persons having stumbled. She agreed that his actions were just a playful type act and it was nothing innocuous and that she did not really worry that he was going to cause anybody a serious problem. 42 She was asked about requesting Mr Wright to give her a letter confirming that he had tripped her. She said that it was to 'confirm that he had done this type of stuff before ... in a joking wise, never meant to hurt anybody and that he had never been chastised by the hotel'. At one stage she agreed that Mr Wright was the sort of person who might give someone a gentle nudge but nothing serious to cause them to fall over. 43 Martin Bryant has been a patron of the hotel for many years and knew David Wright. He said that he would see him whenever he went to the hotel. 44 He said that Mr Wright liked to fool around and push people and put his foot out as a joke saying 'I got you'. He said he saw this a couple of times. (Page 8)
45 He said that Mr Wright had pushed him a couple of times and he was sick of it. In re-examination he said that Mr Wright pushed and shoved him many times and had seen him tripping a 'fair few times'. 46 Kim Hamilton worked at the hotel from November 2007 for approximately 18 months. For a period of time, along with her partner, Geoff Richardson, she operated the kitchen. 47 She said that Mr Wright would put his leg out when one went to go past him. She said that he did this to her approximately four times. 48 There was no contact on any occasion. 49 On the first occasion she told him not to be so stupid. 50 On the second occasion she said she asked why he did it and he just laughed. 51 On the third occasion Mr Wright swung the chair, in which he was sitting, around and put his leg out. On this occasion she said that she screamed at him. 52 The fourth occasion occurred in about March 2009 when Ms Hamilton had been working in the kitchen. She was carrying plates of food through the bar to the outside area. She said that Mr Wright was standing approximately where the second chair from the right is shown in photograph 2, with his back to the bar. As she approached he put his leg out. She almost tripped and food started to fall to the floor. Mr Wright grabbed her arm. She kicked him in the leg and called him names. She returned to the kitchen to get more meals to take outside. 53 In cross-examination she agreed with counsel that on no occasion had Mr Wright made contact with her. She was able to avoid this situation. 54 In cross-examination she also said that Mr Wright tripped other people as well. In re-examination she said that she had observed this a few times. 55 Geoffrey Richardson is Ms Hamilton's partner. He frequented the hotel regularly. 56 He said that he had seen Mr Wright trip a person by the name of Rhonda Pollard. He described that trip as Mr Wright sticking his leg out as she walked past. He was not able to say whether any contact was (Page 9)
made. In cross-examination in relation to the incident, he agreed that he did not see any contact and when it was suggested she might have stumbled over something else he said there was nothing else loose on the floor. When asked how he knew it was a trip and said because she patted Mr Wright on the back and was laughing about it. He still had his leg out and she was standing in front of him but he could not say when he had put his leg out. 57 He also gave evidence that he had not observed any other behaviour on the part of Mr Wright but that his partner, Ms Hamilton, had complained to him when she had come home from work that 'the bastard's done it again'. In cross-examination he said that this had happened on two or three occasions. 58 He also described a time when Ms Hamilton came into the kitchen hysterical because Mr Wright had tripped her and she nearly lost a meal. As a result he spoke to Mr Wright and told him that if he did it again he would be paying for any meal that was spilt. 59 In cross-examination he agreed that Ms Hamilton was not hurt, had not hit herself or fallen down nor had she said that he made contact. Her concern was that she nearly lost the meals. 60 That night, after work, he and Ms Hamilton mentioned the incident to Mr Schumack. He said Mr Schumack put his hands in the air and that was all. He agreed in cross-examination that the focus of the complaint was in relation to losing meals. However he did have concern for Ms Hamilton's safety. 61 Mr Brewster was also asked about other tripping occasions. He recounted an occasion when he saw Kim Hamilton coming from the kitchen with plates and almost falling down. As he described it 'she just about came down on her nose with these three plates'. He described this incident as being close to where Ms Jones' incident occurred. He described it as between the pool table and the door to the outside. He said that Ms Hamilton swore at Mr Wright. 62 Under cross-examination he denied discussing this incident with Ms Hamilton. He maintained that he saw this incident. He said that he was sitting in his usual position having a drink. He was facing away from the bar. Ms Hamilton came from the other end of the bar. She was heading out to the outside area when Mr Wright put his foot out and tripped her. (Page 10)
63 He said that Mr Wright was to the right of Ms Hamilton. 64 Again he said that she nearly went down on her nose but she never lost the plates. He presumed there must have been contact otherwise she would not have lurched forward. He said that she then carried on and went out and delivered the plates of food into what he described as the smoking area, that is the outside area. 65 Mr Brewster was questioned about a statement that he had made on 28 May 2012. In that statement he said 'I have heard of Dave tripping other people and staff members of the Darken Hotel. I can recall hearing about him tripping Kim Hamilton who used to work there'. It was put to him that he had not seen this incident but had just heard about it. He said he made a mistake and when pressed he could not say why he had said he had only heard about it.
The hotel's knowledge of Mr Wright's propensity to trip and the response 66 In respect of those incidents of which Ms Jones gave evidence, as I have noted, she said that after the incident where she was collecting glasses from the windowsill she said to Mr Schumack 'for God's sake say something' and his response was to smirk at her. 67 She said that Mr Angelo and Mr Schumack did not patrol the hotel and Mr Schumack placed himself on the customer side of the bar. 68 As I have noted, under cross-examination she agreed that whilst Mr Wright had tried to trip people she had never seen anyone fall or hurt themselves. When it was put to her that it was innocuous she said that people had stumbled but had not fallen to the ground. She agreed that Mr Wright was the sort of person who might give someone a gentle nudge but nothing serious to cause them to fall over. She was not aware of any instance where anybody fell. She also agreed that at that time she did not think that he presented a danger to anyone. Further, she agreed that she did not report those incidents or enter them in the incident book because they were of no moment and nobody was hurt. However she did say that she was not familiar with an incident register at the hotel. 69 She agreed that the only time she said anything was to Lindsay Schumack, and this was on the occasion that I have referred to, and nothing was done. She said that he was sitting at the table looking at Mr Wright when the incident occurred. (Page 11)
70 Mr Bryant had seen Mr Wright sticking his foot out as a joke on a couple of occasions. He said this was both before and after Mr Angelo and Mr Schumack came on the scene, by which I understand him to mean before Mr Angelo acquired the hotel and Mr Schumack started to work for him. He said that he told the publican 'he is going to hurt someone one day doing that'. He did not identify who the publican was but said that he just shrugged his shoulders. He did go on to say that he told Lindsay and Alan. He said that the complaint was about Mr Wright pushing and being a nuisance. 71 In cross-examination he agreed that some of the things concerning Mr Wright could have occurred before Mr Angelo and Mr Schumack took over. However he clarified that by saying that he had seen this both before and after (they took over the hotel). 72 In re-examination, to clarify what he meant by a 'couple' he said 'many times' and 'a fair few times'. 73 In relation to Ms Hamilton I have described the incidents which involved her. After the second incident when Mr Wright put his leg out she told Mr Schumack 'Dave tried to trip me over'. She said Mr Schumack threw his hands in the air and that was it. She also said 'he's done it again. He's tripping people over … You really should talk to him about it … Every time I said something to him he just laughs'. There was no response from Mr Schumack. 74 After the third incident she said that she told Mr Schumack again and asked him to ban Mr Wright for a while or do something. There was no response. 75 As to the fourth incident involving the plates I have already described her evidence as to the complaint made that evening. However prior to that she said she told Mr Schumack straightaway. He was standing at the bar shown in photograph 2. She said that Mr Schumack mumbled that 'Dave was a wanker' and she said 'look, you know something's really got to be done'. 76 Under cross-examination it was put to her that at its highest she would have said to Mr Schumack that Mr Wright had put his leg out but nothing actually happened but he should not be doing that sort of thing. She agreed. Questions then arose as to why there was not a complaint registered in the incident report book. She said it was not there, by which she meant under the bar, and she had been told by Mr Schumack that it was in the office but she could not find it. (Page 12)
77 In relation to all of the incidents she said that she contemplated writing them up in the incident book but the only time she had seen the book was in the first fortnight that she was at the hotel. The incident book which became exhibit 15 is not one that she had seen. 78 She agreed with counsel that she did not know if Mr Schumack had witnessed any of these incidents. 79 It was suggested to her that she and her husband had not complained to Mr Schumack on the night of the fourth incident involving her and that it had not found its way into a statement prepared by her. In re-examination she was taken to a statement made on 31 December 2012 in which reference is made to her and her husband talking to Mr Schumack after the last occasion when Mr Wright tripped her. 80 I have already dealt with the complaint made by Mr Richardson in respect of the incident involving Ms Hamilton and the plates. 81 Tracey Wallis said that she never saw Mr Wright trip anyone and no reports were made to her of such events. Ms Hamilton never reported any incident to her and she never observed behaviour by Mr Wright which caused anyone to say anything to her other than occasions when he had been stirred up by someone. 82 She said that the incident report book would be used if there was something to report but she had never written up any incident concerning Mr Wright. 83 In cross-examination she amplified her evidence on Mr Wright's behaviours and again said that she had not heard of Mr Wright tripping people. The only incident that she had heard of was the one involving Ms Jones - the subject of these proceedings. 84 In a statement made by her dated 31 January 2011 she said: I know Alan's former employee, Julie, and understand she says she was tripped up by Kiwi Dave in a similar fashion to that complained of by Lynda … I don't know anything about Julie being tripped up and she never told me about it. 85 She said that when giving her evidence she had forgotten about that. 86 Lindsay Schumack said that trivial matters would not be written up in the incident book. (Page 13)
87 Evidence was given by other witnesses and confirmed by Mr Schumack that he usually took up a position in the bar on the left-hand side of the bar shown in photograph 3 at about the second chair from the left. In that position he would drink alcohol; in cross-examination said to be four or five beers a night. 88 He denied ever seeing Ms Hamilton being tripped by Mr Wright or that she or anyone else reported that Mr Wright had attempted to trip or had tripped them. 89 Specifically in relation to Ms Hamilton and the incident involving the plates he was certain he did not see anything. Also he did not see the alleged incident near the dart board when Ms Jones was carrying glasses. He denied that Ms Hamilton and Mr Richardson jointly complained to him about Mr Wright. 90 He agreed that there had been occasions when Mr Wright had drunk too much and had been asked to leave the hotel. 91 He was asked the hypothetical question that if Ms Hamilton had been almost tripped and almost hurt herself what would he have done. He said 'I'd have to think about that because it never happened …'. He agreed that if he had observed these things or complaints had been made to him it would warrant some response from him. 92 In cross-examination he said that if Mr Wright had tried to trip someone he could have barred him from the hotel. However again he denied receiving complaints that he had tried to trip people. He was taken to various entries in the incident book, which I need not go into, where people had been barred for periods of time and that included Mr Wright on one occasion for fighting. 93 In re-examination he said he probably would not record a trip if it was not serious and no-one was hurt and no damage was done. He would not have recorded an attempted trip when no-one is actually tripped. 94 Alan Angelo said that the incident book was at the hotel when he started there in February 2009 and remained there. The book was kept in the office. 95 When he was on duty he would place himself on the left-hand end of the bar as shown in the photographs. From there he could see everybody in the bar. (Page 14)
96 On one occasion he had to speak to Mr Wright about his behaviour and asked him to leave the hotel as he was over the limit and rowdy. 97 Prior to 30 October 2009 no-one had reported to him that Mr Wright had tripped anyone – patrons or staff. He never saw Mr Wright trip anybody. As he put it 'this incident (with Ms Jones) is the first time I'd ever heard about David Wright supposedly being a serial tripper-upperer'. Further, he did not think it possible that his staff might have known but not told him about it.
Findings as to propensity to trip and the defendant's knowledge of it 98 I am satisfied that Mr Wright attended the hotel on a regular basis and from time to time acted as a prankster (my description of Mr Wright – Ms Jones described him as 'the clown of the hotel' – Mr Bryant said he was joking and messing around) by pretending to try to trip people. All of the evidence points to that conclusion. Further, the evidence of Mr Bryant was that he would also push people. Ms Jones referred to him nudging people. 99 However, the evidence did not reach point where Mr Wright had actually tripped anyone. It appears, in his playful manner, he mostly put his foot out as someone was passing by in an apparent attempt to trip. Ms Jones agreed that he did not present a danger to anybody. At its highest his actions almost led to a trip or stumble when Ms Hamilton almost lost the plate of food she was carrying. 100 The case as pleaded (par 6.2 statement of claim) alleged that Mr Wright often attempted to overbalance unsuspecting patrons by tripping them, surreptitiously moving their stools or chairs while they were standing and/or sticking his legs in front of them as they walked past. 101 There is no evidence to support the allegation of moving stools or chairs. The allegation of attempting to overbalance unsuspecting patrons by tripping can only be seen, in the light of the evidence, as a pretence, or as counsel for the defendant put it 'a feint' at tripping. Mr Bryant described it as a joke. Ms Hamilton suggested that it was an attempt but she did not fall. 102 There is no evidence of anyone actually being tripped. The pleaded allegation of attempt carries with it an inference that Mr Wright intended his victims to trip over his legs as he put them in front of them as they walked by. Given the alleged frequency of Mr Wright doing this, if he (Page 15)
had intended to succeed in tripping his victims, one would have expected a modicum of success. On the contrary he was a failure – no-one had tripped or come to any harm. 103 I find that he did from time to time stick his leg out in front of either patrons or staff in a pretence of tripping but not with the intention of doing so. 104 I am not satisfied he otherwise pushed and shoved patrons in any serious manner. Such actions would have been likely to result in sequelae of which there was no evidence. 105 Be that as it may, it does not alter the position, that from time to time a victim of the prank may have formed a view that such action was at the least stupid and at its highest might cause a tripping or stumble and cause that person to react. This was the case with the plaintiff with the glasses and Ms Hamilton with a plate of food and their verbal reactions. 106 The fact that none of these incidents were entered into the incident book at the hotel does not, in my view, assist the defendant. The evidence about the existence of the book, its availability to the staff and its whereabouts was vague and I am not satisfied that any member of staff was in a position or required to make use of it. 107 Did those in charge of the hotel know of these activities by Mr Wright? I am satisfied that Mr Schumack did. In particular I accept the evidence of Ms Jones of the time when she was carrying glasses and in full view of Mr Schumack that the incident she described occurred and she complained to him. I also accept the evidence of Ms Hamilton and her partner Mr Richardson of the complaint that they also made to Mr Schumack following the plates of food incident. Both of these incidents occurred prior to the incident the subject of these proceedings. 108 I cannot be satisfied that Mr Angelo was aware of any such incidents either by way of a report or observation. Mr Bryant's complaints of pushing and shoving I do not accept as part of the propensity evidence and in any event it would seem on his evidence that these incidents may have occurred before Mr Angelo took over the hotel and after the present incident. 109 There is no other evidence to establish that Mr Angelo observed any pretence or attempt at tripping or any actual tripping by Mr Wright. Save for the incident with Ms Jones and the glasses the same applies to Mr Schumack. I am not prepared to infer that because they were on duty (Page 16)
in the hotel they would necessarily have seen all that went on in the bar. In addition I accept the evidence of Ms Wallis that she was not aware of Mr Wright's alleged propensity. 110 I accept Mr Angelo's evidence that he did have trouble with Mr Wright from time to time when he drank too much and was loud and boisterous and that he dealt with that behaviour. This demonstrates to me that he was prepared to confront Mr Wright if his behaviour was unacceptable and there is no reason to suppose that if Mr Wright was presenting as a danger to others in the hotel by other conduct he would not have addressed that as well.
Findings as to the incident 111 I accept and find that Ms Jones did suffer a fall at the hotel on 30 October 2009 during the course of a game of pool. Irrespective of how that occurred, she was not seriously challenged on that fact. 112 The issue is as to how this fall occurred. The only witnesses to the fall were Ms Jones herself and Mr Brewster who gave conflicting versions of the event. 113 I will have more to say about the credibility of Mr Brewster later and precisely what parts of his evidence I can accept as being reliable. 114 Each witness described the mechanism of the incident and the positions of Ms Jones and Mr Wright and the final position of Ms Jones after her fall in different ways. 115 As to Mr Brewster, I readily accept that he would have observed some of the events of this incident. The question is what part of his evidence can be accepted and what cannot. 116 First, I accept that he was seated at the bar. His position is different to that stated by Ms Jones but that is a matter of little moment in my view as the differences are not significant. Secondly, there is no reason to suppose that he was not watching what was happening at the pool table – he was engaged in the game of pool and it was Ms Jones' turn to take a shot. 117 His evidence of her position at the table is to a significant extent consistent with her evidence, that is to say she was at or about the top left-hand pocket area nearest to the door leading to the outside area. 118 It is at this point that their evidence diverges. (Page 17)
119 Ms Jones placed Mr Wright at and in the doorway behind her. Mr Brewster placed him more towards the top right-hand pocket of the pool table in photograph 2. 120 Ms Jones said that she was leaning over and on the pool table to take her shot with the cue in her hand with her left leg close to the table and her right leg straight out. She demonstrated this in court and showed the right leg to be extended out behind her. 121 She said that she felt a hit on the back of her right leg and demonstrated about the ankle area on the right side. 122 Mr Brewster said that she had the cue stick in her right hand and she was moving back to position herself for her shot. He demonstrated her position relative to the pool table and said that she was about 4 feet from the top of the left-hand pocket. In my view that distance is an exaggeration - although not a deliberate exaggeration - and my assessment of the distance as per his demonstration would put it at about 2 feet. 123 He said that she moved back and Mr Wright was to her left and he put out his foot as she was moving. He described his foot as being above the ground but I will have more to say about that shortly. 124 He said that she fell and Mr Wright helped her up by the left arm. Ms Jones says it was the right arm. I accept their evidence that he was laughing and said words to the effect that he had helped her up. However, I do not consider that it takes the matter any further. Given the sort of man he appears to be he may have thought that Ms Jones' misfortune was humorous. When she challenged him believing that he had tripped her and he responded that he had helped her up that is not in any way confirmation of her belief. 125 In cross-examination Mr Brewster confirmed that Ms Jones did not have her hands on the table. 126 Mr Brewster also said that Mr Wright was not right next to her but at the corner of the table and he demonstrated by showing on a photograph an area about the position of the right-hand top pocket in photograph 2. He said that he moved towards Ms Jones. 127 Ms Jones said that after being struck she lifted up, twisted to her right so that she was facing the bar and fell backwards with her head away from the bar. Mr Brewster showed (by way of a diagram) her position after she fell as between the top left-hand pocket and the bar. He showed (Page 18)
and said in evidence that her head and shoulders were towards the bar area. 128 Ms Jones' description of how she fell and where she ended up are, as I have noted, at odds with the evidence of Mr Brewster. Mr Brewster placed her landing diametrically opposite to that which she described. He was adamant as to this and I accept his evidence in this regard. He was in a good position to see where she landed. 129 If Ms Jones was leaning over and on the table with both hands on the cue and her legs positioned as described by her, it is difficult to see how she could have been tripped by being hit on the back of the right leg in the ankle area, that being the leg extended away from the table. 130 Without resorting to biomechanics, of which there was no evidence, it seems to me as a matter of common sense and common experience that if one is leaning forward over the table with one's weight forward when struck from behind on the trailing leg it is more probable than not that one would fall either forward or straight down and not as described by her, that is to say lifting upwards, turning to the right and falling straight backwards. 131 Mr Brewster was also positive as to Mr Wright assisting Ms Jones to her feet, which I find as a matter of fact is what occurred. He had Mr Wright assisting her to her feet by lifting her on the left arm; she said it was the right. However, this difference adds nothing to the issue of how and why she fell. 132 I am satisfied that Ms Jones did hurt herself in the fall and that may provide some explanation for her account being inconsistent with Mr Brewster. 133 I prefer Mr Brewster's observation as to what Ms Jones was doing immediately before the incident, that is to say standing at the table and not leaning on it but stepping back preparatory to making her shot. 134 I also accept his evidence as to the position of Mr Wright immediately before the incident, that is to say to Ms Jones' left and not behind her at the door. 135 Further, as I have noted, I accept his evidence as to where she landed and as to how Mr Wright assisted her to her feet. (Page 19)
136 On all the evidence it seems to me that if Ms Jones was moving away from the table and moving back there would be little room for a person such as Mr Wright to position himself directly behind her. 137 Having got to that point, the question is did Mr Wright trip her as she was moving backwards and if so, did he do so deliberately. 138 On any view of Ms Jones' evidence could it be found that Mr Wright deliberately tripped her by knocking her right leg? She did not see the action. She only felt what she assumed to be his leg against her right leg. At best the fact of tripping as a deliberate act could only arise by way of inference. Part of the facts leading to that inference would necessarily include the propensity (if any) of Mr Wright to trip people and I will come to that shortly. Indeed, Ms Jones relies on that propensity in her pleading and presentation of her case. 139 The evidence of Mr Brewster was that he saw Mr Wright's leg go out and it was a deliberate trip. He said the impact was to the left leg (Ms Jones says the right leg). 140 Whilst I accept the evidence of Mr Brewster, that he saw Ms Jones at the pool table and that she was standing (not leaning over the table) and stepping back and falling, I do not accept that he saw Mr Wright move toward her and deliberately trip her. 141 In my view, for reasons which will shortly become apparent, I am of the view that he has tailored his evidence to support Ms Jones' case of tripping. It is quite apparent that he was aware that this case involved an allegation of tripping. 142 I am of the view that his evidence of alleged tripping is unreliable. His evidence must be seen against the background of his evidence relating to Ms Hamilton. 143 Mr Brewster's evidence in relation to Mr Wright tripping people is limited to two incidents; the one involving the plaintiff and the other involving Ms Hamilton. 144 In respect to the matter involving Ms Hamilton he said that he saw the incident, that is to say the incident where she was carrying plates. He had made a previous written statement in respect of this incident in which he had said that he had heard of the incident - not that he had seen it. His evidence in court was that he saw it. His explanation as to this difference was that he had made a mistake. (Page 20)
145 In his evidence he referred to Ms Hamilton coming from the kitchen area towards the outside area carrying three plates of food. 146 He said that he was seated in (semble) the second or third last seat at the bar to the right-hand side of the bar in photograph 2. 147 He said that Ms Hamilton was tripped in about the same area that Ms Jones was tripped. 148 He nominated the time of this incident as being a couple of months before the current incident, i.e., August or September 2009. Ms Hamilton said it was in about March 2009. 149 He said Mr Wright was in the same area as in the present incident, that is to say at the end of the pool table which would put him to the right of Ms Hamilton. Ms Hamilton said that Mr Wright was standing by the second chair, that is to say at the bar and so he was on her left. 150 Mr Brewster said that Ms Hamilton, after the alleged trip, took the plates of food outside. He said he did not recall her losing any of the food but went straight outside with the plates. Her evidence was that she went back to the kitchen in order to get more meals or to sort out the meals with her partner Mr Jeffrey Richardson. 151 These differences are significant and must be seen against the background of his statement. 152 Mr Brewster denied talking to Ms Hamilton about this incident involving her but his statement is quite clear that he had heard about the incident - not that he had seen it. In my view his explanation that he made a mistake is unacceptable and I am not satisfied that he did see this incident but that he has heard about it either from Ms Hamilton or some other person. 153 Accordingly, I do not accept his evidence about this incident. That is not to say that incident did not happen. However the fact that he was prepared to colour his evidence in this way by attempting to reinforce Ms Hamilton's story in my view strongly suggests that he is prepared to tailor his evidence in an attempt to bolster Ms Jones' case against a background where he knew that her case also involving an allegation of tripping. That he is prepared to so do also affects and infects his evidence about the incident involving Ms Jones. (Page 21)
154 Further, his evidence about Mr Wright's foot being above the ground is clearly a reconstruction also against a background of knowing that the case was one of alleged tripping. 155 Accordingly, I am not satisfied that his version, that he saw Mr Wright put out his leg and striking Ms Jones' leg, is truthful and reliable and I do not accept it. 156 Further, the manner of tripping as described by both Ms Jones and Mr Brewster is entirely different to the previous behaviour of Mr Wright as described by them and other witnesses. On the evidence I have found that Mr Wright would pretend to attempt to trip by putting his leg out in front of a person who was passing by. On Ms Jones' evidence that was not the case here; Mr Wright deliberately tripped her by hitting her right leg above the ankle area from behind. She was not walking past him but preparing to take a shot at the pool table. She had her back to Mr Wright and she only assumed it was his leg that struck her. 157 Mr Brewster, on the other hand, had Mr Wright moving towards Ms Jones and deliberately put his foot out to her left leg. 158 Ms Jones' case is predicated on an alleged propensity of Mr Wright to attempt to overbalance people by tripping them and she uses that propensity as part of the proof that that is what occurred on this occasion. My finding is that the previous actions of Mr Wright were no more than a pretence at attempting to trip. I accept that that conduct could misfire and have adverse consequences. However that propensity, as found, has no part to play in a case of alleged deliberate tripping which is how Ms Jones and Mr Brewster have described Mr Wright's actions on the day in question. 159 I have not found, on the evidence, that the nature of the propensity was for deliberate attempts at tripping nor that that deliberate activity was known to the hotel. 160 Both of the descriptions given by Ms Jones and Mr Brewster involve more than just a pretence at tripping, as I have found to exist, but a deliberate tripping – not just an attempt - quite inconsistent with the propensity that I have found. Whilst that propensity might be such that there might be an unintended consequence of falling, that is not the present case. Accordingly, the propensity I have found does not assist Ms Jones' case either on the direct evidence or by way of inference. (Page 22)
161 Neither side strenuously argued that I should draw an inference adverse to the other for the failure by both to call Mr Wright to give evidence (Jones v Dunkel (1959) 101 CLR 298) and I am not prepared to draw any such inference. He was equally available to both sides and could not be said, on the face of it, to be in any particular party's camp. He was no more than a patron of the hotel. If he had been called it would be reasonable to assume that he would have denied this tripping and the alleged propensity. When Ms Jones' asked him to sign the letter, to which I have previously referred, he ultimately declined to do so. Whether he would have accepted the label I have given to him of a prankster is another matter. Given my findings not much turns of the absence of his evidence. 162 Ms Jones' version of how she fell and what led to it not being accepted, I am unable to be satisfied that she fell by reason of any deliberate tripping by Mr Wright. It might be that, when stepping back, she did trip over Mr Wright. It may be that, coupled with the propensity that Mr Wright had to pretend to try to trip people, she believed that whatever caused her to trip and fall was a deliberate act on his part but I cannot be so satisfied. The fact that he may have such a propensity, coupled with him being in the vicinity of Ms Jones and her falling after feeling something on her leg, does not, in my view, lead, to a finding that it was a deliberate trip on his part and that caused her to fall. It could not be said, on the balance of probability, in the sense that it is more likely, to lead to such an inference. 163 On Ms Jones' version it was a deliberate trip. Indeed, this has been the tenor of the history that she has given in the past. By way of example her general practitioner, Dr Saharay, in a report dated 14 April 2010 (exhibit 24) relates the history as given by her as '... she was purposely tripped by another patron when playing pool ...'. 164 Properly analysed, on her story, Mr Wright must have moved towards her and, in effect, hooked her leg away causing her to fall. On Mr Brewster's evidence, Mr Wright also moved towards Ms Jones who was moving backwards and then Mr Wright put his foot out. On either version, the actions of Mr Wright were entirely different to anything he had done before. Even if his propensity to trip was of a more serious nature than I have found and it was an attempt rather than just a pretence, he had never actively stalked the victim to trip that person. 165 If this was a deliberate trip by Mr Wright, that would be an independent act by him as a patron of the hotel and I am not satisfied that (Page 23)
he had a propensity to act in that way and of which the hotel had knowledge. 166 In those circumstances the plaintiff has not satisfied me of the basic facts which lead to the finding of breach of duty such as that alleged.
Legal issues 167 Because of my findings that Ms Jones has not satisfied the burden of proof as to how she came to fall and my finding as to the propensity of Mr Wright to feign tripping no legal issues fall to be determined. 168 The case was opened and run on the basis that the common law, Civil Liability Act 2002 (CLA) and Occupiers' Liability Act 1985 (OLA), all have a part to play and that at some time the interaction of these legal positions needs to be considered: see Town of Port Hedland v Hodder [No 2][2012] WASCA 212. I accept that it is an issue that needs to be resolved but this case is not an appropriate vehicle in which to form a concluded view. 169 However, it is appropriate to me to make some comment as to each of these three competing or complementing pieces of jurisprudence to see whether it would have any effect on the ultimate outcome of this case. 170 Little needs to be said about the common law position. This is a case about foreseeability of harm arising from knowledge of the propensity of Mr Wright to do certain acts and whether there arises a duty to take reasonable care to avoid the risk of injury arising. 171 The defence has correctly observed that Ms Jones' case is based on specific conduct on the part of Mr Wright about which I have made my findings. Irrespective of the seriousness of his behaviour, in the context in which I have described it, Ms Jones did not consider him to present as a danger to anyone. The defence then poses the question 'why then would the defendant need to take any steps to protect patrons from him'. In my view that is too simplistic a view to take; the test is not what Ms Jones knew and what she would have done in response to the risk – it is what a proprietor of a hotel, armed with that knowledge (from all sources), looking prospectively, would have done as a reasonable response to avoid the risk of harm occurring. 172 In her statement of claim at par 4 Ms Jones pleaded: At all material times the Defendant owed the Plaintiff, a lawful patron at the premises, a duty of care to take reasonable measures to safeguard the (Page 24)
Plaintiff from the risk of injury from intoxicated and/or unruly patrons of the premises. 173 There is no suggestion of Mr Wright being intoxicated and the allegation of tripping can be seen to refer to him as being unruly. This pleading is one that mirrors, to some extent, the finding in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 where the duty of care was described as to take reasonable care to prevent injury to patrons from the violent, quarrelsome or disorderly conduct of other patrons. 174 In the present case it is pleaded that the hotel had control over and occupied the premises within the meaning of s 2 OLA - a fact admitted in the defence. 175 Section 4 OLA provides: 4. Application of sections 5 to 7 (1) Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers — (a) to that person; or (b) to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person, which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible. (2) Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent. 176 Section 5 of the Act relevantly provides: 5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers (Page 25)
177 The OLA has a chequered history as to its relationship to the common law of negligence. That history is fully dealt with in Watch Tower Society v Sahas (2008) 36 WAR234. 178 Both Pullin JA and Heenan AJA noted that there were two lines of authority in this State; one to the effect that there is no longer a duty imposed by the common law on occupiers of premises , the other to the effect that the OLA did not create a new statutory cause of action and did no more than to reform the common law by replacing the common law (Page 26)
rules and regulating the standard of care owed by occupiers with a single standard of care: see Pullin JA [9]. 179 His Honour Heenan AJA at [37] noted a number of cases and observed that in Jones v Bartlett (2000) 205 CLR 166 the High Court seem to assume the parallel existence of an action of negligence at law and a statutory cause of action under the OLA. His Honour also observed that in Town of Mosman Parkv Tait (2005) 141 LGERA 171 McLure JA proceeded, in the absence of submissions by the parties, on the assumption that concurrent duties of care existed. 180 At [35] and [54] Heenan AJA observed that there was a difference between an action for damages for common law negligence and an action for damages for breach of statutory duty where the latter involves an action for breach of an Act which confers a cause of action which, otherwise, would not exist. 181 Once again, that was a case where the controversy as to the operation of the Act did not have to be resolved. Whilst for the purposes of that case his Honour was prepared to assume that the OLA did replace and remove an action for damages at common law arising from injury incurred on premises arising from negligence or other breach of duty by an occupier ([42]), his view was that the OLA does nothing more than operate in a complimentary way with the doctrines of common law, except to the extent that it specifically identifies the standard of care which applies in circumstances identified by the Act. At [60] his Honour observed, as to whether the OLA creates an exclusive statutory liability which excludes the general law of negligence: … I certainly incline to the view that it does not have that effect, notwithstanding that, to a significant extent, it supplies the content of the standard of care owed by the occupier. 182 For the purposes of the present action I am, with respect, prepared to incline to the same view. However, given the facts of this case it seems to me that little turns upon the distinction. 183 Having regard to the relevant matters set out in s 5(4) it seems to me that the defendant would not be in breach of the OLA. Having regard to the knowledge that the hotel had of the propensity of Mr Wright, as I have found it to be, the gravity and likelihood of the injury was not foreseeable. Had it been, I am satisfied that the burden on the hotel of eliminating the danger or at least attempting to do so is one which, at first blush, appears not to be onerous. It is argued on behalf of Ms Jones that Mr Wright (Page 27)
could have been warned not to act in that way or even barred from the hotel. It seems to me that the former would be a reasonable step if in fact he did have the propensity to attempt to trip but not the latter. He might be given a warning as to the latter if he failed to adhere to an earlier warning. 184 Given that he had not actually tripped anybody and that nobody had been hurt, it seems to me that a warning which would have the effect of barring him from the hotel was not a reasonable response at the time. 185 The comments that I have just made by reference to the standard of care under the OLA also apply to the hotel's position at common law. 186 It is argued on behalf of Ms Jones that such a warning would have been effective. I am not so convinced – there is nothing before me to so suggest. 187 The position as to the CLA is similar. Its relationship to the common-law and to the OLA has also been considered in other cases, e.g. Dept of Housing and Works v Smith (No 2) (2010) 41 WAR 217, and once again it has yet to be resolved. 188 Section 5A of the CLA provides that pt 1A extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action. 189 Section 5B relevantly provides in relation to a duty of care: 5B. General principles (1) A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless — (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) — (Page 28)
(a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. 190 In Dept of Housing and Works Pullin JA (Newnes JA) referred to Adeels Palace. At [11] he expressed the view that the impression that he gained was that the High Court had regarded the relevant provisions of the New South Wales Act (Civil Liability Act 2002 (NSW)) as supplanting the common law relating to the duty of care, standard of care or causation. In the same case Buss JA appears to have taken a different view as to the duty of care. At [74] his Honour observed that the High Court did not give the impression that the relevant section in that Act had modified or supplanted the common law principles for determining whether the duty of care exists or not. His Honour also went on to note that the question of breach of duty must be considered by reference to the relevant provisions of the CLA. 191 Whilst there are some differences in the wording between the Acts of New South Wales and Western Australia, Buss JA took the view that the difference in language was insufficient to distinguish the authorities which have held or proceeded on the basis that s 5B of the New South Wales Act relates to breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not: [76]. His Honour concluded at [77] that s 5B CLA relates to breach of duty of care and does not modify or supplant the common law principles which determine whether the duty of care exists or not. 192 In Adeels Palace the High Court noted that the heading 'Duty of Care' to s 5B and s 5C in the New South Wales Act was apt to mislead. The same heading appears in the Western Australian legislation. The High Court noted that the provisions were directed to questions of breach of duty. 193 To the extent that Pullin JA referred to the impression that he had as to the way in which the High Court dealt with the duty of care in Adeel's Palace, it seems to me that that was not a finally concluded view contrary to that expressed by Buss JA which was that the Act does not modify or supplant the common law principles which determine whether the duty of (Page 29)
care exists or not. In my view that would be consistent with the High Court in Adeels Palace: [13]. 194 In any event, in the present case, the existence of a duty of care either at common law or under the OLA is not in dispute. Further, there appears to be little in the way of dispute as to the scope of the duty of care both at common law and under the OLA even though the scope as pleaded on behalf of Ms Jones and to which I have referred, was denied. The way in which the case was run and as submitted by the defence was one involving a duty of care to avoid injury in respect of matters of which it had knowledge and to which it was expected to respond by taking reasonable care to prevent injury to patrons. 195 I have already made my findings in relation to breach at common law – that is to say that absent the propensity pleaded and knowledge of that propensity no relevant duty of care arose to which the defendant would be expected to respond. 196 It seems to me from the brief analysis above that questions of breach of duty would fall to be dealt with under the CLA. Again, in view of my findings, it follows that, in terms of s 5B CLA, the probability of harm in the absence of any action by the hotel and the seriousness of the harm was at best minimal. I have already dealt with the burden of taking precautions to avoid the risk. 197 Having regard to those matters, I am of the opinion that the risk of harm in the circumstances of this case was not only not foreseeable it was insignificant. It was not foreseeable, in my opinion, that Mr Wright would move from being a prankster pretending to trip to a person to one who would deliberately trip Ms Jones. Such an action on his part would amount to an assault. In my view that was not foreseeable. 198 Further, that being the case, a reasonable person in the hotel's position would not have taken any further precautions to avoid that which is alleged to have occurred. Perhaps the starting point here is that the general principle is that a person has no legal duty to rescue another from harm at the hands of a third party (Smith v Leurs (1945) 70 CLR 256) even if the risk is foreseeable (Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254). However, it has to be recognised that in some relationships, which may include publican and patron, a duty to prevent physical harm may be recognised. 199 In any event, even if it were the case that the necessary duty of care arose which involved taking steps to address the risk of injury to patrons (Page 30)
by threatening to remove Mr Wright from the premises and/or removing him from the premises as alleged by Ms Jones or take action having regard to the propensity as found as opposed to that alleged, I do not accept that that would have deterred Mr Wright. As in Adeels Palace, there is no basis in the evidence for concluding that any step to prevent Mr Wright acting on his propensity to pretend to trip people would have deterred or prevented him from deliberately tripping Ms Jones which is what is alleged. The court in Adeels Palace observed that in Modbury 'the conduct of criminal assailants is not necessarily dictated by reason or prudential considerations'. The court also stressed at [50] that recognising that changing any of the circumstances in which the shootings occurred might have made a difference does not prove factual causation. The court there concluded that the plaintiff was not able to prove that, but for the absence of security personnel, the shootings would not have taken place. Transposed to the present position I cannot conclude that if Mr Wright had been given a warning about the propensity that I have found he might not have gone on to do the deliberate act alleged. 200 All of the foregoing does not ultimately resolve the way in which the common law, the OLA and the CLA interrelate. However I am of the view that they are complimentary. The OLA does not supplant the common law and, as noted by Heenan AJA in Watch Tower Society, it supplies the content of the standard of care owed by the occupier. The common law still also applies to the existence of the duty of care in negligence which, when found to exist, then forms the basis for further consideration of matters of breach and causation under the CLA. 201 I commenced this section by noting that it was appropriate for me to comment on these matters to see whether or not they would have any effect upon the ultimate outcome of this case. By reason of my findings of fact in relation to the way in which this accident occurred, and the propensity of Mr Wright, Ms Jones' case must fail.
The injuries 202 Ms Jones alleges in her statement of claim that she sustained injury in her fall comprising an injury to the lumbar spine, aggravation of pre-existing problems in the right shoulder, and psychological distress. 203 In her evidence Ms Jones said that she fell onto her bottom and onto 'the whole of my back and shoulder, more to the right and onto the shoulder blade – right shoulder blade'. (Page 31)
204 She said that she suffered immediate pain in the lower sacral area. Not long afterwards she went home. At about 1.30 am the next morning she drove to Collie where she stayed with her mother for a couple of days. In the early hours of the Monday morning she went to hospital where she was admitted and stayed for five or six days. She said that she was hurting in the lower sacrum and chest. 205 After she left hospital she said that she had pain in the lower back and the sacral area. She had injections. 206 She described the pain as getting better but still constant and she was unable to sit properly, bend or stand or walk a long distance without pain. She currently takes Panadol Osteo and other painkillers. She had also been on Valium. 207 She said that she gets little sleep because of the pain to the lower sacrum, lower back and the right shoulder. She admitted to problems with the shoulder before the fall but afterward she had more pain. She said this was about a week after the fall. She said that the shoulder has not got better. 208 She spoke of having injections in the right and also in the left shoulder. The symptoms have ameliorated on the left but the right is still painful. 209 Before proceeding further with making findings generally on her injuries I can dispose of the alleged shoulder injury. Whilst that injury was alleged in the statement of claim and persisted with by Ms Jones in her evidence, I am not satisfied that she suffered any injury to the shoulder in her fall. 210 Mr Phillip Hardcastle, orthopaedic surgeon, had prepared a report dated 7 November 2012 (exhibit 29) in which he observed that it was not his opinion that there had been any specific injury to the right shoulder. His opinion was that the right shoulder symptoms relate to the progression of underlying pre-existing problems in this area with no significant injury as a result of the fall. There was no evidence of complaints of any right shoulder symptoms in the emergency department. 211 Further, Dr Desmond Williams, orthopaedic surgeon called on behalf of Ms Jones, also noted in his evidence that he did not have any record of the shoulders being involved in the fall other than Ms Jones impacted her scapular area on the right side. (Page 32)
212 In his report dated 17 December 2012 (exhibit 27), Dr Williams noted Dr Hardcastle's opinion that there had been no specific injury at the time to the right shoulder. In that report he went on to opine 'from the history of the fall of October 2009, one cannot relate her shoulder problems as directly related to that injury'. He went on to say that he had no evidence that the fall of October 2009 created the pathology seen in the current plain x-rays which reflects some trauma from the past as the impact from the fall was in the scapular area and the pathology is defined to the glenohumeral joint area on the plain x-ray. 213 As I have noted, I am not satisfied that Ms Jones suffered an injury to her shoulder in this fall but the effect of the shoulder problems needs to be considered in the context of the case generally as the problems with her shoulder were run as part of her case and relating to her present capacities. In her evidence she said, as I have noted, that she had had injections to her shoulder and it was still painful. Mr Hardcastle in his report, in relation to her capacity for work, observed she does have a not insignificant right shoulder problem now which is having an impact on her functional capacity and it would restrict her. 214 With regard to her lower back, Ms Jones said that she had not had any significant back problems before her fall. After the fall she had problems and she had had about four injections which had helped for a while. However the pain in her back restricts and affects her walking, sitting and standing for too long. She described the pain as pins and needles in the lower part of the coccyx and aching in the legs and lower back when standing. 215 Dr Williams in his report of 16 September 2010 (exhibit 26) referred to her pain at that time as in the lower lumbar spine and in the para-vertebral area. There was radiation of pain to the left buttock and left posterior thigh to knee level. Previously there had been radiation of pain to her right leg. 216 Dr Williams referred to radiological and other scanning and noted that there was some narrowing of the L3/4 disc space with degenerative changes and scattered degenerative changes elsewhere in the lumbar spine. There was no evidence of compressive fracture. There was no marked facet degeneration and the sacroiliac joints were seen to be preserved. A CT scan of the lumbar spine taken on 29 December 2009 showed no evidence of a fracture. (Page 33)
217 In that report Dr Williams described the injury in the back as being soft tissue contusion injuries with an element of flexion to the lumbosacral spine and an exacerbation of symptoms from underlying degenerative change with no clear documentation of lumbosacral fracture. He formed the view that she had a 10% disability in the lumbosacral spine expressed as a percentage disability of a whole functional spine graded as a mild level of disability but annoying in terms of coping with functional activities. 218 In his later report of 17 December 2012 he again expressed the same opinion as to the nature of the injuries. At this stage he assessed her disability of the lumbar spine as being at 20%. He noted her present problems as including low back and coccygeal pain evident after long sitting and walking activities. There had been some suggestion of a coccyx angulation but he formed the view that there was no evidence to support that that represents an acute fracture. He formed the opinion that the injury to the lumbar spine was a direct soft tissue contusion component which had aggravated symptoms from pre-existing degenerative change which was largely asymptomatic as there was no history of significant lumbar symptoms prior to the fall. 219 In relation to that coccyx angulation, Dr Saharay accepted that there was evidence of a prior injury to that area so that the present injury resulted in an aggravation of that region. 220 Mr Hardcastle in his report had said that there was evidence of an injury to the sacrococcygeal region which was either a significant bruising or contusion or possibly a fracture which would be considered a new injury. He also referred to there being potentially an aggravation of pre-existing degenerative back problems. As I have noted, Dr Williams in his report had said there was no evidence of fracture or disc protrusion. 221 Dr Hardcastle's opinion was that Ms Jones had made some recovery in relation to the lumbar spine and almost certainly to the coccyx region. 222 Dr Saharay, in his evidence, said that he had treated Ms Jones after her fall. She complained of pain in the lumbar spine and sacrum. She was unable to tolerate certain tablets and she had injections to the spine. These relieved her pain to some extent but not to her satisfaction. 223 He described pain travelling into both legs with restriction of movement in the spine and restriction in straight leg raising. (Page 34)
224 As to the progress of her condition he said that she would feel better one day and not so good the next. He went on to say that she reported that she was worse at the present time and she could not function. He said that he saw her once a month or once every two months when she needed more tablets. 225 He said that she was on Panadol Osteo and also anti-inflammatories. 226 On the basis of that evidence I am satisfied and find that Ms Jones did suffer an injury to her lower back and coccyx when she fell in the hotel. I am satisfied that it was a soft tissue contusion type injury as described by Drs Williams and Hardcastle. 227 I now come to the claim for psychological distress. 228 The plaintiff gave evidence that, prior to her fall, she was a happy-go-lucky person. She had been prescribed antidepressant medication in 2005 or 2006. She said that she had problems with her children and upsetting moments when she lost her father and a friend and also had a grandson who had been sick. She said that for the couple of years before her accident her psychological state was fine. 229 She said that she realised her psychological state had altered when she was doing her 90 hours of practical for an aged care course after her fall. She said that she had been looking forward to doing this and enjoyed the work and realised she could not do it and felt useless and hopeless and that she had not achieved anything. 230 Dr Saharay had noted on 28 April 2010 that Ms Jones was 'feeling down'. He was unable to explain that further. However in his notes on 25 August 2011, following review for the purposes of the application for an invalid pension, he noted 'major depression'. He treated her with medication – Cipramil. 231 His notes also revealed that back on 31 January 2006 Ms Jones had 'run out of Lovan 20'. That is an antidepressant drug. The notes revealed a reference to this drug back in November 2005. The note for 25 November 2005 was that her father had passed away and she was depressed and crying and unsettled. In cross-examination he was asked about the entry '12/12' and he said that that indicated that she had had depression for 12 months. She was prescribed Efexor. This was changed to the Lovan. 232 She is currently on Citalopram for her depression. (Page 35)
233 This earlier bout of depression was explored further in cross-examination. Apart from saying that she had had depression for 12 months he observed that depression is a chronic illness with remission in between. Other incidents of life can trigger an old problem. 234 When he completed the appropriate report for Ms Jones' disability pension he omitted to tick a box which said that she had psychiatric disabilities, but in another part of the report he indicated that she was depressed 'most of the time'. 235 Dr Stephen Proud, a psychiatrist, examined Ms Jones and produced a report dated 21 November 2012 (exhibit 2A). His oral evidence was taken de bene esseon 14 December 2012. 236 In his report, Dr Proud assessed Ms Jones on the Social Security Psychiatric Impairment Rating Scale as having a permanent psychiatric disability of 15% and said she would be left with moderate and regular symptoms for the foreseeable future. In his report he diagnosed Ms Jones as having a major depressive disorder, moderate severity in partial remission, DSM-IV criteria. He said that that depression was the result of the ongoing pain and disability and anxiety about her future arising from her accident on 30 October 2009. He said that her depression was as a result of what happened with the accident because of her ongoing pain and her fear regarding her ability to support herself in the future. This was exacerbated by the fact that she was without a partner and had no assets and she was heading into her 50s. 237 Under cross-examination he was questioned about his diagnosis and causation. He was not aware that Ms Jones' treating doctor had provided a report in April 2010, six months after the accident, in which there was no reference to any anxiety, depression, mood or mental problems reported by Ms Jones. Further, he did not have a copy of that doctor's report to Centrelink of 1 November 2011 in which, in answer to a question whether there were any psychiatric problems associated with the plaintiff, he had responded 'Only physical. No psychiatric'. I have dealt with Dr Saharay's evidence as to this which came after Dr Proud's de bene esse hearing. 238 It was put to him that in the absence of such complaints it was less likely these matters were attributable directly to the accident but rather to a multitude of things going on in her life. The doctor thought that was one plausible hypothesis but there could be others. He noted that people sometimes live in hope but that there comes a point when things do not (Page 36)
get better and then the psychiatric disorder presents. He agreed that the drawn out legal process can aggravate things. 239 He also accepted that there were other factors at play and that she was a vulnerable person. He was not aware of any problems with her family relationships, difficulties with her children and her ex-husband. He agreed that those matters could cause anxiety issues. 240 He agreed that the legal process could weigh heavily on her as well and he agreed that once that is resolved one component of her anxiety or depression would be gone, but he also noted another factor which might be her inability to work. 241 He did not agree with the opinion of Dr Spear (which I will come to) who suggested that her condition was likely to improve within six months with appropriate treatment. 242 In reaching his diagnosis he said that he applied the DSM-IV but agreed that he had not set out the criteria for that diagnosis in his report. He said he was satisfied that his finding was most likely attributable to the accident. 243 Dr Jonathan Spear, another psychiatrist, produced a report dated 11 December 2012 (exhibit 28). In that report he set out his diagnosis according to DSM-IV as, amongst other things, generalised anxiety disorder and pain disorder. He set out in the report the relevant clinical features to satisfy the criteria in DSM-IV. 244 With respect to generalised anxiety disorder, he noted excessive worrying on a daily basis for the past two years, difficulty controlling this worry but able to be distracted, restlessness and easily being fatigued and impaired concentration, irritability, sleep disturbances and pain. He noted that the anxiety does not appear to be in the form of a panic attack or other disorders, that the worrying causes distress and impairment in her occupational functioning and that there is no evidence that this is due to psychological effects of substance abuse or general medical condition. 245 As to the pain disorder he noted that she had pain in one or more anatomical sites which causes significant distress and impairment in occupational functioning. He also noted the psychological factors appear to have an important part in the onset, severity, exacerbation and maintenance of the pain. He noted that the symptoms do not appear to be intentionally produced or feigned and the pain is not accounted for by mood, anxiety or psychotic disorder. |