Jones v White
[2008] VSC 551
•4 December 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT WANGARATTA
COMMON LAW DIVISION
No. 1307 of 2007
| HELEN JONES | Plaintiff |
| v | |
| SHARYN LEANNE WHITE | Defendant |
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JUDGE: | HARPER J | |
WHERE HELD: | SHEPPARTON | |
DATE OF HEARING: | 27-30 OCTOBER 2008 | |
DATE OF JUDGMENT: | 4 DECEMBER 2008 | |
CASE MAY BE CITED AS: | JONES v WHITE | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 551 | 2nd Revision: 5 December 2008 |
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PERSONAL INJURY - Occupiers’ liability – Plaintiff fell in unmade driveway – Broken wrist and sprained ankle – Wrongs Act 1958, Part IIA, s.14B(3) – Negligence – Failure to warn - Neindorf v Junkovic (2005) 122 ALR 631 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne & Gross |
| For the Defendant | Mr M.J. O’Brien | Sparke Helmore |
HIS HONOUR:
On 27 February 2005, the plaintiff, Helen Jones, was seriously injured when she fell in the driveway of 17 Burke Street Wangaratta. Although this property has since been sold, it was then owned by the defendant, Sharyn White. Mrs Jones says that she tripped on the edge of a pothole in the driveway, which was in a state of disrepair for which Ms White is responsible. This, she argues, gives rise to two causes of action. One is based upon Part IIA of the Wrongs Act 1958. The other is founded in negligence. The particulars of negligence include both failing to warn of the existence of potholes, and failing to keep the driveway under repair.
Part IIA of the Wrongs Act is concerned with occupiers’ liability. It applies “in place of the rules of the common law which before the commencement of the Occupiers’ Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.”[1] Otherwise, however, the rules of the common law “with respect to the liability of occupiers to persons entering upon their premises” continue apply.[2]
[1]Wrongs Act 1958, s.14B(1).
[2]Ibid, s.14B(2).
The principal operative provision of Part IIA is s.14B(3). It is in the following terms:
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
Ms White does not dispute the fact that Mrs Jones was injured by a fall on her property. The area of controversy is limited to the cause of the fall. The plaintiff concedes that she was not, at the time, watching either her feet or the ground. Her attention, she says, was focussed on Ms White’s partner, Mr Barry Hartnel. He was waiting to greet both her and her husband, David Jones, as those two – having (as the plaintiff claims) been invited to join Mr Hartnel and Ms White for breakfast before travelling on to Melbourne and the overnight ferry to Devonport – rode on their motor bike into the driveway of 17 Burke Street.
As a result of her fall, Mrs Jones suffered a comminuted Colles’ fracture of the left wrist, together with a badly sprained right ankle.
It is at this point that the accounts given by each side diverge significantly. Mrs Jones maintains that, after the bike came to a halt, she dismounted, removed her gloves and then her helmet, and took a few steps towards her host. She did not then realise, she said, that the driveway might as well have been in an Iraqi war zone. Not knowing how rough was its surface, and therefore not anticipating the danger it posed, she overbalanced in a pothole the existence of which was unknown to her before she fell in it. Not only that, but the pothole would not have been there had the defendant not been in breach of s.14B(3); that is, in breach of her duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises, or of things done or omitted to be done in relation to the state of the premises.
Ms White takes a very different position. She contends that the surface of the driveway had nothing to do with the accident. First, Mrs Jones’ description of it as equivalent to a bombed-out track in Iraq was wildly exaggerated. The driveway may have been unsurfaced, but it was not uneven – certainly, not so uneven as to constitute a danger. Secondly, its condition was in any event irrelevant. It had no role to play in the circumstances giving rise to the plaintiff’s injuries. Mrs Jones did not stumble into a pothole of which she was unaware and then, having been thrown off balance, fall. She did not stumble into a pothole at all. There were no potholes into which she could stumble. On the contrary, she slipped while dismounting from the pillion seat of the motor bike. It was that slip, the result of her own carelessness, which caused her to fall.
A counterclaim has been filed. It does not properly plead the defendant’s case. It alleges contributory negligence on the part of Mrs Jones. In essence, according to the particulars of negligence, she failed to keep a proper lookout and thereby failed to take care of her own safety. There is no allegation to the effect that she slipped while dismounting.
Claim and counterclaim, as argued but not as pleaded, raise a stark dispute about the facts. The resolution of that dispute must, in the circumstances of this litigation, depend upon findings about competing versions of the evidence; and this in turn raises issues of the credibility of the witnesses called on each side. There is therefore no avoiding the necessity to make findings about the reliability of the evidence proffered by those called to give evidence at the trial.
It is likewise necessary to examine much of the evidence with care. Some facts are nevertheless not in dispute, certainly not seriously. I find them to have been established. Mrs Jones and her husband, David Jones, were experienced motor bike enthusiasts. They had ridden together for hundreds of thousands of kilometres in all conditions over a period of almost 20 years, Mrs Jones riding pillion while her husband was in the driver’s seat. On one of these trips, they met Mr Hartnel. Ms White did not accompany him on this journey, however, and so it was not until later that Helen and David Jones first met her. In the meantime, a friendship between those two and Barry Hartnel began. Despite David Jones’ professed dislike for the telephone, it was by this means that he, based in Ballina on the north coast of New South Wales, kept open his lines of communication with Mr Hartnel, who lived in Wangaratta, Victoria.
The narrative now enters territory that, were issues of credit not important, might seem to have peripheral relevance. What immediately follows is an examination of the two versions of the story.
On an occasion some 12 months after the first meeting with Barry Hartnel, another motor bike excursion involving him, together with Helen and David Jones, took place. The trio came to Bega. They visited a local hotel. In its lounge, in the presence of Mr and Mrs Jones and some 30 other patrons of the hotel, Mr Hartnel received, perhaps even welcomed, the attentions of a lap dancer. She later performed a strip-tease for him and others in another area of the hotel, before eventually being evicted by the hotel management. In the meantime, neither Mr Jones nor Mr Hartnel discouraged her. On the contrary, Mr Hartnel participated in the lap dance routines, and Mr Jones – in the presence of his wife - filmed what followed in both locations within the hotel. He says that it was his practice to take video footage of everything that happened on his holidays. In accordance with that policy, he “videotaped that evening.” [3]
[3]Transcript, p.173 line 30.
All this is more or less uncontentious. From this point, however, the stories diverge. According to Mr Jones, Mr Hartnel was keen to have the video footage for himself, while far from keen to let Ms White know of its existence, still less of the activities it depicted.
Mr Hartnel denies that his interest in the video was as Mr and Mrs Jones have claimed. He says that his desire was not for a copy of the scenes in the Bega hotel, but for those shot elsewhere on the trip. Helen and David Jones, by contrast, go on to say that a plan was put in place to achieve each of the objects about which, according to them, Mr Hartnel was anxious: the transfer of the video on the one hand, and its concealment from Ms White on the other. First, Mr Jones edited his film of the holiday as a whole so as to isolate that part of it which captured the interaction with the lap dancer. He also (he says) agreed with Mr Hartnel that, after editing, a copy of the relevant portion would be sent to Wangaratta addressed to a post office box to which Ms White did not have access.
The editing took some time. About 12 months after the Bega incident the VHS tape still had not been forwarded to Mr Hartnel. There then arose an opportunity to deliver it to him. Mrs Jones and her husband had decided to take their bike on a holiday riding around Tasmania. This involved travelling from Ballina, where they lived, to Melbourne via Wangaratta. They planned then to catch the overnight ferry to Devonport.
Mr Hartnel had remained in touch. He acknowledges that he was told about the Tasmanian plans. He invited Mr and Mrs Jones to call in, on the way through, to the home he shared with Ms White in Wangaratta. His guests maintain that this was so that they could deliver the VHS tape at that time. They also maintain that, consistently with this, Mr Hartnel met the travellers in Albury – something about which Mr Hartnel himself gave similar evidence. The trio then followed an indirect route from Albury before reaching Wangaratta on the afternoon of Friday 26 February. Because no bookings had been made in advance, motel accommodation had to be found. Mr Hartnel agrees that he assisted in the search, but when the motel to which he took them turned out to be not what was wanted, he returned home.
Mr and Mrs Jones agree that the motel was rejected as being unsuitable. By contrast with the story as told by Mr Hartnel, however, they contend that its rejection was not at their instigation – it was Mr Hartnel who wished to find them another. The first candidate for the Jones’ accommodation did not have VCR equipment. It therefore could not serve as a venue for that which Mr Hartnel was anxious to do: watch the film of the Bega lap dance and strip tease. Mr and Mrs Jones also gave evidence that Mr Hartnell took them to a second, and then a third, motel - with similar disappointment at each. By this stage, however, the travellers from Ballina were tired. According to them, they settled on the third motel even though it too lacked the desired equipment. It was then, they contend, that Mr Hartnel returned home, only to re-visit the motel later so that Mr Jones, who at that time was an amateur tattooist (he later turned professional) could perform some tattooing on Mr Hartnel. Meanwhile, the video remained unpacked at the bottom of the Jones’ luggage.
Mr Hartnel accepts that the tattooing was done. He does not agree that the tape remained unpacked. He says that it was not only unpacked, but played. He nevertheless agrees that, when he left to go home, he went without the tape. According to him, the viewing convinced him that he did not want that video anywhere near him.
The evidence of Helen and David Jones was that, later in the afternoon, Mr Hartnel returned to their motel for a second time. He collected Mr and Mrs Jones and – still without the tape - drove them to the house in which he lived with Ms White. The trio arrived, well before sunset, at the White premises in Burke Street Wangaratta. The plaintiff and her husband both told the Court that Mr Hartnel parked the vehicle in Burke Street, and that they, then on foot, entered the house by way of a footpath which left the nature strip at the fence line and continued across the front lawn past the front garden to the front door. They did not use, and did not notice the condition of, the driveway. While inside the house they were introduced for the first time to Ms White. They then continued through the house to the back yard and by that route arrived at a converted garage where Mr Hartnel and Ms White entertained them until it was time to leave for the five minute walk to a nearby pizza restaurant for dinner. In order to let the children know of their departure, they began the walk to the restaurant by entering the house from the garage. This had the result that the garden path, and not the driveway, led them into Burke Street. It was again the path, and not the driveway, that they similarly used when returning to 17 Burke Street from the restaurant for post-dinner drinks, and finally (well after nightfall) when leaving by taxi for the journey back to the Jones’ motel.[4] They therefore did not notice, and were otherwise given no warning about, the driveway’s condition.
[4]Mrs Jones could not remember, when she gave her evidence, how at the conclusion of the evening, they travelled from Burke Street to the motel; her husband (transcript, p.181, lines 12-13) said that it was by taxi. Ms White confirmed this. Mr Hartnel’s evidence was that Helen and David Jones returned directly to the motel after dinner, without re-visiting Burke Street.
Mr Hartnel gave a different account. He contended that Helen and David Jones arrived at 17 Burke Street on the evening of 26 February either on foot or by taxi; either way, he did not collect them from their motel. On their arrival, they walked down the driveway. In the circumstances, it being then in full daylight, they must have obtained an accurate knowledge of its condition. They then went directly to the shed, without entering the house. Ms White joined them a short time after that. They enjoyed some drinks before walking to the restaurant, again using the driveway in daylight. After the meal, Mr and Mrs Jones departed for their motel without returning to 17 Burke Street.
Ms White said in her evidence that she first met David and Helen Jones after they arrived at her property in the early evening of 25 February. They were then with Barry Hartnel in the garage. She gave no evidence about the route they took to get there, and could not remember whether, on leaving for the restaurant, the party proceeded by means of the path or the drive. She was similarly unable to remember whether, on their return, they took the one or the other route into the garage. Either way, the sun had by then well and truly set. It was dark.
Several aspects of the evidence about the days’ events stand out as significant. First, Mr Hartnel accepts that the video filmed at the Bega hotel came with Mr and Mrs Jones to Wangaratta, and he viewed it. This, I find, was because he wanted to do so; and that, in turn, is most likely to have been because he requested the film of the lap-dance scenes rather than the more general shots of the holiday. Mr Jones complied with that request. I therefore must characterize as untruthful Mr Hartnel’s evidence that he had only ever asked for the uncontentious portion of the video. Secondly, on no version was the transfer of the Bega tape effected on 26 February. This, if the evidence of Mr and Mrs Jones is correct, is odd. The perfect time to hand the tape to Mr Hartnel was when he was with them in the Wangaratta motel while Ms White was elsewhere; and this remains so even if the video was buried somewhere in the innermost recesses of the Jones’ luggage. Thirdly, three of the four witnesses (one of whom is the defendant herself) gave evidence that, after dinner at the pizza restaurant, the party returned to the garage at 17 Burke Street. Mr Hartnel is alone in denying that return. In my opinion he is wrong, although here the reason may merely be a lapse of memory.
I accept the evidence of the plaintiff and her husband about the route taken by them when they first arrived, driven by Mr Hartnel, at the Burke Street premises. The car having been parked by Mr Hartnel in the street, they entered the garage via the path through the front garden, not by walking along the driveway. I also accept that the path was used as the means of egress on the walk to, and the means of ingress on the return from, the restaurant. I therefore find that neither Mrs Jones nor her husband had any knowledge, before the plaintiff’s accident, of the condition of the driveway.
Mr and Mrs Jones contend that, by an agreement to which Ms White was not a party, it was decided to hand the video to Mr Hartnel on the morning of 27 February. The arrangement was that the VHS tape would be brought from the motel with them, and transferred to a waiting Mr Hartnel outside the house and before the guests went inside and met Ms White.
Here, according to Helen Jones, was sown the seeds of her misfortune. As planned, she and her husband arrived on their motor bike. In accordance with Mr Hartnel’s instructions, given to her by him during a telephone call on the morning of 27 February in which he reminded them to bring the tape, they did not park the bike in the street, but brought it into the White property by riding it into her driveway before parking and dismounting. And they had the tape with them. True to his part of the arrangement, Mr Hartnel was waiting at the front of the house to collect it from them. He had, according to his evidence, earlier that morning moved his vehicles into Burke Street so as to allow room for the visitors to park their bike under the shadecloth which covered the driveway in the vicinity of the house. He then awaited their arrival. Ms White was not in the picture.
It is plain that, immediately after her fall, Mrs Jones lay in the left-hand wheel ruts of the drive as one proceeds (as she had done) from Burke Street towards the house. She was then not wearing helmet or gloves, though she had these on when the bike entered the property. As I have already noted at paragraph 6 above, her evidence is that, as the bike came to a halt, she dismounted and only then took off her helmet and gloves before walking a few steps towards Mr Hartnel. I accept this evidence. It is consistent with a series of video shots taken by Mr Jones after the fall. Yet Mr Hartnel placed the motor bike in the right-hand ruts, and swore that Mrs Jones slipped from the bike directly to the ground. Her accident simply could not have occurred as he described it.
The defendant relied on medical histories taken from Mrs Jones after the accident. It was submitted that these are inconsistent with the account given by Mrs Jones in her evidence in this case.
I do not agree. In the first place, the histories are inherently unreliable for any but medical purposes. The medical professionals who recorded them were only interested in the circumstances of Mrs Jones’ fall to the extent necessary to ensure that her treatment was appropriate. In that context, the question whether she injured her wrist and ankle as a result of slipping from the bike to the ground or as a result of tripping in a pothole was irrelevant. Those providing medical treatment to Mrs Jones would therefore have no reason to bother about the accuracy of that portion of the history taken and recorded by them. For the same reason, Mrs Jones might not have been astute in the choice of her words when giving her account.
Secondly, of the histories relied upon by the defendant, only one entry suggested that Mrs Jones “fell” (not “slipped”) from the bike itself. The others were consistent with her evidence, or – at worst for her - no more or less consistent with her account than they were with that of Mr Hartnel. None described an accident caused when Mrs Jones’ foot slipped from the passenger pedal of the bike. In my opinion, Ms White can obtain no comfort from the medical histories.
I therefore find against the defendant on the question whether Mrs Jones slipped when dismounting (in which case there could be no liability in Ms White) or tripped after she had dismounted (in which case liability remains in issue). The point in contention thus becomes whether a cause of Helen Jones’ fall was the result of a failure by Ms White to take such care as in all the circumstances of the case was reasonable to see that the fall did not occur by reason of the state of the premises.
According to Mrs Jones and her husband, the bike traveled for a short distance along the centre of the driveway before coming to a halt. Mrs Jones dismounted, removed her gloves and then her helmet and, concentrating upon Mr Hartnel, took a few steps towards him. She noticed, she said, that Mr Hartnel was rubbing his hands together. She assumed that this was in anticipation of his long-awaited receipt of the Bega video. At all events, her attention was focused squarely on him. Unaware at that point of the presence of a lurking pothole, she unwittingly stepped into it. As she did, her right ankle twisted. At the same time, she fell heavily, her left arm taking the force of the fall. The pain was instant, and so strong as to make her feel ill.
It is at this point that a description of the driveway becomes important. Both sides accept that it was unsealed. It is reasonable to assume that it was the only means of vehicular access to Ms White’s land from Burke Street, and that it initially came into being when the first vehicle traversed it. Subsequent vehicular journeys along its length were the means by which its existence was consolidated, just as later they were the reason for its deterioration. Both sides accept that it was delineated by wheel lines or, more accurately, ruts with - between those ruts - a slightly raised central, and relatively well grassed, area matching in width the width between the near and off-side wheels of a sedan motor vehicle. I accept that this is about six feet.
A good deal of controversy surrounds the condition of the driveway, and in particular the wheel ruts, when Mr and Mrs Jones rode into it on the morning of 27 February 2005. One witness of the seven who gave evidence on this issue was independent. All the others were either one of the litigants, or were associated with one of the parties as a spouse, or partner, or friend.
I have examined the evidence of them all. Where there is a conflict between the independent witness and the others, I prefer the evidence of the former. He had no reason to partial. What is more, he impressed me, as he gave evidence, with his directness and candour.
The independent witness was Mr Lawrence Harrigan. He is now a resident of Western Australia. For four or five years he lived at 19 Burke Street Wangaratta, next door to Ms White at no. 17. He got to know Ms White and Mr Hartnel, and visited them occasionally. He was then a nurse, and was called to assist Mrs Jones after her fall on 27 February 2005. He was asked about the condition of the driveway at that time. It was, he said, “an unsealed dirt driveway with two pronounced tracks down either side where the wheel base of a car would go with a ridge in the middle.”[5] It was situated near the boundary between his property and that of Ms White. It incorporated “more than two or three”[6] but “probably less than 15”[7] potholes. These were “of varying depths from five to six inches to two to three inches to one inch.”[8] The point in the driveway where Mrs Jones was sitting when Mr Harrigan attended to assist her, was:
… pretty typical of the whole condition of the driveway. There wasn’t one particular area that was worse than the other. It was all pretty crappy.
[5]Transcript, p.189 lines 5-7.
[6]Ibid, p.190, lines 8-9.
[7]Ibid, p.191, line 18.
[8]Transcript, p.191, lines 16-17.
With one exception, Mr Harrigan’s evidence was in my opinion credible and convincing. With that single exception, I accept it. I do not accept his estimate of the depth of the deepest potholes. This was, I find, inaccurate. A pothole six inches deep is, for a pothole over which vehicles travel, very deep indeed. I nevertheless accept the balance of his description of the driveway. It had been carelessly maintained. It included the wheel marks of the vehicles that had driven along it; and these wheel marks contained individual potholes that were deep enough to be a hazard to those who were not watching where they placed their feet.
There was evidence, which I also accept, that pedestrians regularly used the driveway without incident. Children played on and around it, with the occasional fall to which the uneven surface possibly contributed; but children at play will fall no matter what the condition of the surface on which their activities take place. Adults generally negotiated the driveway without difficulty, just as adults commonly walk over rough ground without difficulty, at least when the light is good.
To accept that evidence, however, is not to take the matter very far. The absence of injury does not equate to the absence of risk. In particular, it does not follow from the absence of any injurious incident before Mrs Jones fell on 27 February 2005 that the driveway was maintained in a way which fulfilled Ms White’s statutory duty to take such care as is reasonable in all the circumstances to see that any person on the premises will not be injured by reason of the state of the driveway.
In the context of an action alleging breach of that duty, the expression “in all the circumstances” covers a wide and varied field. This opens the way to differing views about what is relevant and what is reasonable. The dissenting judgment of Kirby J in Neindorf v Junkovic[9] demonstrates the point. Each of the five members of the Court in that case (Gleeson CJ and Kirby, Hayne, Callinan and Heydon JJ) accepted that not all people live, or can afford to live, in premises that are completely free of hazards.[10] All of the judges likewise accepted that unevenness of residential paths and surfaces represent common hazards for those entering private property.[11] There seems to have been similar commonality of opinion that “[w]here a risk is obvious to a person exercising reasonable care for his or her own safety, the notion that the occupier must warn the entrant about that risk is neither reasonable nor just.”[12]
[9][2005] HCA 75 at [18ff]; 80 ALJR 341 at 346; 122 ALR 631.
[10]See, for example, at [8] per Gleeson CJ; at [96] per Hayne J; at [101] per Callinan and Heydon JJ.
[11]Ibid, at [59] per Kirby J; at [101] per Callinan and Heydon JJ.
[12]Ibid, at [71].
These statements are but illustrations of the proposition that, in all cases of negligence, including cases arising under Part IIA of the Wrongs Act, one must – after a duty of care has been established – ascertain whether there has been a breach; and the latter exercise will involve an analysis of such factors as the extent of the risk, its obviousness, the ease or otherwise of avoiding or minimising it, and the nature and extent of any likely harm if it is not avoided or minimised.
The Wrongs Act having established the duty, I must, therefore, embark upon the analysis; and, in doing so, consider whether the duty has, in the circumstances of this case, been discharged. In giving effect to this obligation, I must have regard to the nine factors identified in s.14B(4). I have done so.
The first of them is the gravity and likelihood of the probable injury. Here one must resist the temptation to latch upon the benefit of hindsight. Unless one resists this temptation, error becomes likely: what was, the moment before it happened, no more than a mere remote possibility, may become clothed in a quite unjustifiable inevitability.
Taking that risk into account, I begin the necessary consequential analysis having concluded that the driveway contained the potholes described by Mr Harrigan, albeit that he exaggerated their depth. Such a driveway was one which in my opinion compels the conclusion that both the gravity and the likelihood of Mrs Jones’ injury were foreseeable. She was invited to call at 17 Burke Street. Her husband was told to bring his motor bike onto the property via the driveway, which was cleared of vehicles for that purpose. Mr Hartnel was waiting to greet them both upon their arrival.
It may be that the potholes described by Mr Harrigan would be obvious to anyone walking into the driveway from the street. It does not follow that they were obvious to Mrs Jones. She entered the property not on foot but as a pillion passenger on a motor bike. As a passenger, she had no particular reason to look at the driveway, still less examine its condition. Having dismounted, the possibility that she might be distracted by Mr Hartnel’s presence into looking at him rather than at her footfall was clearly open, and therefore foreseeable. The next link in the chain – that she might trip in a pothole – was equally possible and equally foreseeable. So was a subsequent injury such as she incurred.
I find that Mrs Jones was not aware of the state of the driveway at the time she alighted from her husband’s bike and took a few steps towards her host. I also find that she was then watching him, not her feet. This, however, was the natural thing for her to do. It was to be expected, and therefore to be foreseen. It did not involve any contributory negligence on her part.
Ms White ought therefore to have taken reasonable steps to remove or at least reduce the risk constituted by the potholes. As soon as it was known, or should have been known, (a) that visitors might arrive by motor bike; (b) that they might be unfamiliar with the driveway; and (c) that they might have their attention focussed on someone waiting to greet them, reasonable steps should in my opinion have been taken to ensure that the visitor would not stumble into such a trap.
The second factor (the circumstances of the entry onto the premises) is in this case aligned with the first. I need not examine it further, save to say that the possibility of some distraction drawing a visitor’s attention away from the terrain must be taken into account. The fact that Mrs Jones was concentrating on Mr Hartnel is, accordingly, very relevant; and it is no answer to assert, albeit correctly, that she was not looking where she was going. It cannot be negligent to walk forward while looking at someone and, therefore, while not concentrating on where one’s feet will land (a very different thing from – for example – walking forward onto a roadway and into traffic while looking at a person on the other side of the road).
It must be anticipated that the circumstances in which Mrs Jones found herself will frequently arise. It must likewise be anticipated that, where the terrain includes potholes, falls will happen. If those potholes occur on your property, and have been caused by you (by, for example, driving vehicles over the property), and it is not difficult or expensive to fill the holes, you may be in breach of the duty imposed upon you by s.14B(3) of the Wrongs Act. There may, in the particular circumstances, be no obligation to warn, because to the particular person entering the premises the danger may be obvious. Mrs Jones was not such a person.
The third factor (the nature of the premises) has already been considered, and will be touched upon again. The fourth (the knowledge which the occupier has or ought to have of the likelihood of persons being on the premises) is answered by reference to the invitation which Mr Hartnel extended to Mr and Mrs Jones. The fifth (the age of the persons entering the premises) is not here relevant. The sixth (the ability of those persons to appreciate the danger) has been answered – it was very limited, because the first opportunity Mrs Jones had to observe the surface of the driveway was when the motor bike on which she was a passenger entered the property only moments before she fell. The seventh (the influence of drugs) is in this case irrelevant, as is the eighth (engagement in an illegal activity).
The final issue to which s.14B(4) refers is the comparative burden on the occupier of eliminating the danger, or protecting the entrant from it, when set against the risk. Here, the answer must in my opinion be that the burden was small, and was not proportionately enlarged when compared to the risk of a fall that might result in a nasty injury. That risk, in other words, while not great, was not negligible; but the ease with which it could be avoided was such that this latter consideration took precedence.
I find that steps to avoid the risk were not taken in this case. I also find that this failure (a) was a breach of the duty the subject of s.14B(3) of the Wrongs Act; (b) was a cause of Mrs Jones’ fall; and (c) resulted in her injuries. She did not, as the defendant claims, slip off the passenger foot peg while dismounting from the motor bike.
Given these findings, it is necessary to assess the damages to which Mrs Jones is entitled. I turn first to the issue of general damages.
Mrs Jones, who is right-handed, gave evidence about continuing pain in her left wrist. She also spoke of a reduction in her ability to enjoy activities such as table tennis, beach walking (uneven ground causes discomfort in her right ankle, and she feels insecure and is fearful of falling), riding pillion on her husband’s motor bike and driving a car. Two formerly favoured activities, fishing and playing the pinball machine, are no longer (she said) among the things she does at all. She continues to take medication (Panafen Plus) for the pain in her wrist.
Medical reports by Dr Greg Gillett, an orthopaedic surgeon, were tendered on behalf of Mrs Jones. He examined both her left wrist and her right ankle. In his first report (dated 11 September 2006) Dr Gillett recorded that the treatment she had received had been appropriate. He regarded her condition as “stable and stationary.”
Mrs Jones complained to Dr Gillett about soreness in the thumb of her left wrist and “a burning sensation across the race of the wrist” and on the dorsum over the scapholunate area.[13] She said the strength in the left hand was reduced and “it felt like she will drop things” if she uses it. She said she could not make a tight fist. She told Dr Gillett that she could not play her pinball machine “as that aggravates her condition”; nor did she play table tennis any more. Typing and cleaning cause problems, and she requires assistance with driving and heavier household chores. Dr Gillett added that Mrs Jones “used to travel to work sites and drop off equipment for workers and this is now a problem.”
[13]Report dated 11 September 2006 of Dr Greg Gillett, p.2 (Court Book p.55).
On examination, Dr Gillett found mild deformity of the left wrist, with some restriction of movement and “general diffuse tenderness … but no palpable crepitation”. He also found that Mrs Jones’ grip is reduced, but no neurological deficit or clinical signs of reflex sympathetic dystrophy. X-rays showed a healed fracture of the distal radius “which is united with slight dorsal angulation and slight radial deviation”. There is mild articulation step of 1 mm and, Dr Gillett found, the ulnar styloid had been fractured.
Dr Gillett examined Mrs Jones’ right ankle, and diagnosed a sprain injury. Although he found tenderness over the lateral ligament complex, Mrs Jones had a normal gait pattern and the range of motion was full “apart from mild loss of eversion range”[14].
[14]Ibid, p.4 (Court Book p.57).
Dr Gillett assessed the degree of Mrs Jones’ impairment as a result of her injuries at “more than 5%”.[15] I add, because the defendant submitted at the trial that Mrs Jones should have sought treatment at Wangaratta rather than travel to Tasmania before seeking medical attention, that in Dr Gillett’s opinion her treatment “has been appropriate”.[16]
[15]Certificate of Assessment of Degree of Impairment Arising from Stabilised Injury dated 11 September 2006 (Court Book p.60).
[16]Report dated 11 September 2006 of Dr Greg Gillett, p.5 (Court Book p.58).
In his second report dated 26 October 2007, Dr Gillett recorded that Mrs Jones continued to complain of a sore left wrist, which she said felt “fat” with aching and burning, restricted movement and weakness.[17] Again, on examination he found mild deformity of the wrist with some restriction associated with pain. The muscle bulk was normal but the grip strength was reduced on the left side with a grip of 10kgs while the right side could grip 25kgs. Comparison of X-rays taken in August 2006 and October 2007 showed “no evidence of degeneration that is progressive” and “no progression of any arthritis.[18] On the other hand, she was then as restricted in her activities as she had been on her first visit 13 months before.
[17]Report dated 26 October 2007 of Dr Greg Gillett, p.2 (Court Book p.62).
[18]Ibid, p.3 (Court Book p.63).
The final report from Dr Gillett, which is dated 21 October 2008, records that Mrs Jones complained of experiencing discomfort when driving, necessitating her having to take her left hand off the steering wheel. She continued to have problems with typing, and with gripping things such as a coffee cup or a saucepan. On examination, her injuries appeared stable. Dr Gillett concluded that her symptoms would be ongoing to the current level and that she would be limited to “sedentary book work type activities working at her own pace.”[19]
[19]Report dated 21 October 2008 of Dr Greg Gillett, p.4 (Court Book p.74).
Mr Hugh Weaver, an orthopaedic surgeon, examined Mrs Jones on 28 August 2007 on behalf of the defendant. He concluded that the weakness of her left-handed grip was to an extent “voluntary in character”, and he saw “no convincing clinical evidence” of any problem with her right ankle. He accepted that she suffered a comminuted Colles’ fracture of her left wrist with a considerable deviation in the joint which “did clearly incur a very substantial injury to the wrist itself as a direct consequence of her fall.”[20]. This caused her very severe pain for some weeks. A number of attempts were made to manipulate the fracture before a satisfactory position could be achieved.[21] Nevertheless, the impairment of the wrist function was described by Mr Weaver as “mild”. In his opinion, Mrs Jones “is capable of undertaking her usual business activities, but it is … accepted that her residual symptoms do cause some difficulties for her, both with employment, domestic and recreational activities.”[22]
[20]Report dated 29 August 2007 of Mr Hugh Weaver, p.4 (Court Book p.68).
[21]Ibid.
[22]Ibid, p.6 (Court Book p.70).
Mr Weaver was of the view that no further treatment of any kind was indicated. There remains, however, according to Mr Weaver, an “increased potential for her to develop degenerative (osteoarthritic) changes involving the left wrist in the longer term.” If this potential is realised, it will be accompanied by additional pain.
I am satisfied on the balance of probabilities that Mrs Jones’ suffers from residual pain in her left wrist. Nevertheless, she has not satisfied me that her activities are, by reason of the injury she suffered on 27 February 2006, reduced to the extent she claims. She can drive a manual car; and if she does not play table tennis any more, this is not so much because she cannot, as because she is not willing to take any risk with her ankle, or with her left wrist, although that itself is not used in the game. I am also of the opinion that, even if she has not gone fishing since the accident, she could if she wished still participate to a significant extent in many of the activities involved in a family fishing holiday (I accept that fly fishing and big game fishing would not be open to her).
She continues to ride pillion on her husband’s motor bike. It may be that her technique has changed somewhat, but not in my opinion to the extent required to warrant my taking that into account in assessing the amount of general damages to which she is entitled. Her principal loss, it seems to me, is in her inability to play pinball. This is something from which she formerly derived much pleasure.
I also accept, however, that Mrs Jones cannot now vacuum carpets. It is, I conclude, for that reason that she and her husband were justified in their decision to replace the carpets in their house with floor boards. These can be cleaned with a mop; and a mop is something she can manage.
By the time of Mr Weaver’s examination, the injury to Mrs Jones’ right ankle had resolved without the need for any significant treatment. This therefore adds but a minor component to her general damages. I assess these, including the component for her ankle injury, at $95,000.
There remains the issue of special damages. The first claim under this head is for the expenditure incurred by the partnership in employing a replacement for Mrs Jones during her convalescence.
Husband and wife operate a roof restoration business in their home town of Ballina. They also operate a tattoo parlour. Immediately before the accident, Helen Jones was responsible for the bookwork, managing the phone, and customer relations. When roofing projects were underway, she delivered goods to and from site. Because for health reasons tattoo parlours must be carefully maintained, she was responsible for cleaning and preparing the rooms.
After the accident, these responsibilities had to be discharged by someone else. Between 1 April 2005 and the following 16 September, the partner of the Jones’ son was engaged to undertake these duties. Her salary over that period was $20,334.00.[23] This sum has not been challenged, although the defendant submitted that only half should be attributable to Mrs Jones. In Husher v Husher[24], however, the High Court held that in the case of a partnership such as that operated by Helen Jones and her husband “if a substitute is reasonably employed to replace the injured partner, at least the full cost of engaging that substitute should … be awarded to the injured plaintiff.”[25] I therefore include the sum of $20,334.00 among the special damages to which the plaintiff is entitled.
[23]Transcript, p.498.
[24](1999) 197 CLR 138.
[25]Luntz Assessment of Damages for Personal Injury and Death (4th Ed., 2002, para.[5.5.10]).
Because she could not work, Mrs Jones could not earn. There being no real challenge to the plaintiff’s position at this point, I accept that she suffered as a result a loss amounting to $26,423.00 - that sum being calculated by comparing the profits of the partnership in the year ending 30 June 3004 with those for each of the three following years. In each case, the year after was less profitable than the year before. The differences, when cumulated, add up to the sum claimed ($26,423.00).
I have noted that, in my opinion, the plaintiff is justified in saying that, given her problem with her left wrist, she can no longer operate a vacuum machine. Her solution was to remove carpet in her home and relace it with flooring that can be cleaned with a mop. According to the invoices included in the Court Book,[26] the cost of the new flooring was $1,787.00. There is no other evidence before me, and for that reason I accept it. In any event, I think that this was cheap compared with the cost of hiring someone to operate the machine.
[26]At pp.290-203.
As I understand it, the plaintiff does not pursue a claim for travel expenses in Tasmania. She does, however, press her claim for the cost of having her son’s partner drive from Ballina to Melbourne to collect Mrs Jones and then drive her back to Ballina accompanied by Mr Jones on his motor bike. The cost is said by the plaintiff to be $1,935.60, calculated by multiplying the distance (3,226 kilometres) by the cost per kilometre ($0.60). These figures are not challenged by the defendant.
The defendant, however, submits that air travel would have been cheaper, and was an appropriate alternative. I think that Mrs Jones was justified in wishing to journey home with her husband in the comfort of a car driven by a family member. I accept that the chosen means of return were reasonable.
Medical expenses of $179.05 are not in dispute. The plaintiff claims, in addition, the cost of medication (Panafen Plus) at $1,100.00 for the past and $1,050.00 for the next five years. Those sums total $2,150.00. The use of Panafen for pain relief was not the subject of adverse comment by the medical practitioners, and I am prepared to accept the plaintiff’s calculation of the cost.
There remains only the cost of attendant care during Mrs Jones’ convalescence. She claims that she required such care for 16 hours per day for the first 24 days after the accident. It is agreed that the appropriate hourly rate is $25.
Mrs Jones was not in intensive care during that time. She had many hospital visits, but otherwise she was at her sister’s home in Launceston. She must have spent most of her waking hours sitting or lying, but without the need for constant care during that time. Bathing, feeding, dressing and the like could only be accomplished with assistance; but activities of this kind could not have occupied more than seven hours on the busiest day, with another hour for incidental and ancillary help. Of course, the carer would have been required to be on call for other portions of the patient’s waking hours, but not all of them. If the carer were engaged commercially as such, it might not be possible to make the adjustments necessary to release her or him for those scattered and to an extent unpredictable periods when care was not required. It is different when the patient is the carer’s sibling and is cared for in the carer’s home. And it must be remembered that, consistently with Griffiths v Kerkmeyer,[27] the loss for which the damages are payable is not that of the carer, but that of the plaintiff; and her loss was not the legal liability to pay for the services. It was the loss of physical capacity which occasioned the need for them. At those distinct and relatively lengthy times when any loss of capacity is irrelevant because (for example) the patient is (more or less) happily reading a book, or watching television, or dozing, and the carer can turn to other activities which have nothing to do with care, the justification for an accrual of damages disappears. I am prepared to allow 10 hours per day for 24 days at $25 per hour, a total of $6,000.00.
[27](1977) 139 CLR 161.
Once Ballina was regained, the claim drops to 12 hours per day for the first 84 days and 6 hours per day for the balance of the total of 168 days for which this head of damage is claimed. The way the claim is framed assists in making the point discussed above. It is unlikely that Mrs Jones’ need for immediate and direct personal care, such as with washing and toileting, suddenly dropped by four hours per day once Mrs Jones arrived home. The need for someone to be on call for certain periods, which might not be possible to conveniently segment into distinct blocks of time, would remain. But being at home with a family member as carer, the time each day during which the carer would be required to be either directly assisting Mrs Jones or at the ready to provide assistance would, it seems to me, to drop from 10 hours per day for the first 84 days to eight, and then to six for the balance of 84 days. Again, the rate is agreed at $25 per hour. The result is a figure of $16,800.00 for the initial 84 days and $12,600.00 for the remaining 84 days, a total for the full 164 days of $29,400.00.
The sum to be awarded to Mrs Jones for special damages thus amounts to $29,400.00 + $6,000.00 (Griffiths v Kerkmeyer damages in Launceston) + $179.05 (medical) + $1,935.60 (return travel to Ballina) + $1,787.00 (flooring) + $26,423.00 (loss of income) + $20,334.00 (cost of replacement labour) + $2150.00 Panafen Plus). The total of these amounts is $88,208.65. To this is to be added the amount awarded as general damages ($95,000.00). The total amount to which Mrs Jones is entitled is therefore $183,208.65.
There will be judgment for the plaintiff in the sum of $183,208.65 together with costs and such interest as is properly to be included. I will ask the parties to calculate that interests.
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