Koch v Lanahmede Pty Ltd No. DCCIV-01-220

KOCH v LANAHMEDE PTY LTD
[2003] SADC 59
Judge Allan
Civil

This case arises out of an incident which occurred at the Lyndoch Hotel on 18 December 1998.
The plaintiff claims damages for injury and loss sustained by him as a result of the incident.
At all relevant times, the hotel was operated as such by the defendant. It was managed by the witness Kevin Blanchard.
The hotel is situated adjacent to the intersection of Gilbert Street and Lyndoch Valley Road at Lyndoch. It occupies an elevated position. A concrete sleeper wall marks the change in elevation between the surface of Lyndoch Valley Road and the hotel. There is a grassed area between the top of the sleeper wall and the verandah area of the hotel building. The sleeper wall is about 12 feet from the building. A doorway from the hotel provides access to the verandah and grassed area. This area is about four feet above the surface of Lyndoch Road.
At all relevant times, there was no fence along the edge of the grassed area adjacent to Lyndoch Valley Road.
Patrons of the hotel would sometimes be on the verandah surrounding the hotel and on the grassed area. The veranda was licensed, but the grassed area was not; nevertheless, people who had been drinking and, sometimes, people in various states of intoxication as a result of what they had drunk, would be on the grassed area. On the day in question, patrons were on the verandah and the grassed area.
The plaintiff and his wife were “regulars” at the hotel.
At the time of the incident the subject matter of these proceedings, the plaintiff was employed at Orlando Winery. He was a leading hand. The day of the incident was the day of the Orlando Winery Christmas “breakup”; an occasion at which food and alcohol was consumed. The function went from about 1.00pm to 4.00pm, after which a number of the employees attending the function adjourned to the hotel, the plaintiff included.
The hotel was crowded. People were drinking and engaging in the spirit of Christmas. One of the employees of Orlando, who need not be named, had probably drunk too much, and he became aggressive: the sort of thing that happens from time to time in hotels. This employee, who was young and known to the plaintiff and for whom the plaintiff felt some responsibility because he was the employee’s immediate supervisor at work, got involved in an altercation with another person in the hotel. Punches were thrown and there were some wrestling. This was not the only incident of that nature at the hotel that day.
The employee concerned was ejected from the hotel. Kevin Blanchard, not unnaturally, wanted him removed from the hotel. The plaintiff assisted in that process. He did not want to see the young man concerned get into trouble. I should say that there is a conflict on the evidence as to the role of the plaintiff in the removal of the man from the bar area of the hotel, but it is a conflict which is unnecessary to resolve. In the event I am wrong about that, I mention that I prefer the evidence of the plaintiff on that topic to that of Kevin Blanchard and his son Kym and would make findings accordingly.
The employee concerned and the plaintiff came to be on the grassed area of the hotel to which I have referred. The employee continued to be aggressive: he wanted to get back inside the hotel to resume what had gone on. The plaintiff was trying to restrain him. They were scuffling. They were rolling about on the grassed area. They fell off the grassed area onto Lyndoch Valley Road. One of the sleepers forming part of the sleeper wall became dislodged and fell onto the plaintiff’s right foot. He sustained the injury for which he seeks damages from the defendant.
An adequate fence around the edge of the grassed area would have prevented the plaintiff, and the other man, from falling onto the road; and that is the basis of the plaintiff’s claim against the defendant; the plaintiff alleging that the defendant was negligent in failing to provide such a fence.
The defendant does not deny that it owed a general duty of care to the plaintiff. It says, however, it discharged that duty; that the incident which caused the plaintiff’s injury was a “freak” event which it could not reasonably have foreseen.
In my view, the defendant was negligent: it breached its duty of care to the plaintiff by failing to provide an adequate fence on the edge of the grassed area; a fence sufficient to prevent people from toppling onto the road. Far from being a “freak” accident, the defendant should have foreseen, reasonably, that a person in circumstances like the plaintiff, in the absence of an adequate fence, could topple from the grassed area onto the roadway. As I have mentioned, incidents such as those involving the plaintiff were not uncommon; and the defendant should have reasonably foreseen that such incidents could spill out onto the verandah and grassed area. The defendant knew that patrons of the hotel who had consumed alcohol, including some affected thereby, would be moving about in that area. As best I can tell on the evidence, there was no impediment to the erection of an adequate fence. The premises were unsafe without one.
I am not satisfied that the plaintiff was guilty of any contributory negligence. In my view, his behaviour in the circumstances was reasonable. He was doing no more than assisting the defendant in attempting to prevent the man concerned from re-entering the bar area of the hotel.
The plaintiff is entitled to recover damages for the injuries sustained by him in the fall, and it is to that matter which I now turn.
In the fall, the plaintiff sustained a fracture of the base of the first metatarsal in his right foot, extending into the articular surface of the metatarsal and for a short distance up the shaft. There was no significant displacement of the fractured segments, save for one segment which was slightly removed. He also had a superficial laceration which did not need suturing.
The plaintiff had pain in his foot the night of the incident and saw his general medical practitioner the following day. His foot was sore and swollen. The pain increased on weight bearing. His foot was x-rayed, the laceration dressed and the foot bandaged. He was given some medication for his pain.
The plaintiff used crutches for about eight weeks after the incident. He was experiencing constant pain in his foot at the site of the fracture, made worse on weight bearing. He spent his time sitting around and having physiotherapy. He took Panadene Forte for the pain.
Gradually, the plaintiff’s symptoms abated and he returned to work. There seems to be no dispute that he returned to work on 13 March 1999. For the first eight weeks or so after the accident, when the plaintiff was on crutches, his wife helped him with his daily requirements and drove him about in their car.
After the fall, and because of its effects, the plaintiff was depressed. He had trouble sleeping and tension arose between him and his wife. Dr Black, a psychiatrist, examined the plaintiff on 1 September 1999. He considered that the plaintiff had suffered a psychiatric condition; an adjustment disorder with mixed anxiety and depressed mood; a condition which, he said, persists. Dr Blakemore, another psychiatrist, examined the plaintiff in August 2001. He considered that, at that time, the plaintiff was not suffering from any psychological or psychiatric condition as a result of the fall and the injuries sustained in it. As I have mentioned, Dr Black’s opinion is that the plaintiff continues to suffer from an adjustment disorder. I prefer the opinion of Dr Blakemore that he does not.
I am not satisfied that the plaintiff suffered a psychiatric condition in the nature of an adjustment disorder. I accept that, following the injury and because of the pain, disability and inconvenience which flowed from it, the plaintiff was depressed; but I am not satisfied that such depression was in the nature of a psychiatric or psychological condition; rather, I am inclined to the view that it was no more than what might reasonably be expected when a fit, healthy, active person, because of the effects of an injury, is reduced to something less than that; a condition which abated as the plaintiff’s physical condition improved and disabilities waned. I also accept that the plaintiff, from time to time, experiences feelings of depression because of the ongoing symptoms in his foot and that this will continue as those symptoms persist; but I should say that none of this means that I am satisfied the feelings of depression suffered by the plaintiff in the past, or that he might suffer from in the future, by themselves, have caused, or are likely to cause, any incapacity for work. They have been, and remain, no more than a concomitant of his physical disabilities as a result of the injury.
The plaintiff continues to have pain in his foot; under the arch, across the top and in his ankle. He wears supports in his shoes prescribed by Dr Pickering, a surgical podiatrist. His pain is constant. It is worse at the end of a working day and on changes in the weather. His foot is stiff and sore in the mornings. It is painful to get it mobile. He does not take medication for pain. He experiences pain on walking on uneven surfaces and on using a ladder. Heavy weight bearing increases his pain. Some shoes irritate the arch of his foot. He rides a motorcycle, but not as much as he use to, because its kick-starter aggravates his foot. He has pain on running and walking for extended periods, and he finds it difficult to stand on his toes and squat. He is not playing any sport.
Dr Pickering considers the plaintiff has a degenerative disease at the site of the fracture and that it is likely to produce an increase in his symptoms with the passage of time; perhaps requiring a fusion of the tarso metatarsal joints for relief from that pain; a procedure which the plaintiff would be prepared to undergo.
Dr Magasdi, who has examined the plaintiff over a period to time, does not share Dr Pickering’s view as to degenerative disease and the possibility of future surgery. He thinks the condition of the plaintiff’s foot is static.
I prefer the evidence of Dr Pickering on this matter. I think it likely that the plaintiff’s condition will deteriorate. I think there is a possibility, but no more, that the plaintiff will undergo a fusion of the kind described by Dr Pickering.
The plaintiff is now aged 38. He left school at age 15 and, after working at various jobs of a manual nature, became a boiler-maker/welder. At the time of the accident, he was doing maintenance work on the production line at Orlando. As I have already mentioned, at the time of the incident, he was a leading hand. He was to have changed duties to that of a projects co-ordinator from 1 January 1999. He would have gone on a salary which would have meant that, initially, he would have taken a drop in income. On his return to work, he assumed the duties of a projects co-ordinator and continued at that work until he resigned from his employment with Orlando in August 2001: he had been working up to 75 hours per week and was “burnt-out”. Since then, he has been working and living on his family’s farm. He does general farm work and is paid $18 per hour. As I understand the position, he is largely responsible for running the farm. He is able to control the physical activity in which he engages.
The plaintiff is married and his wife lives with him on the farm. There are no children. His wife is in employment.
There is no suggestion that, because of his injury and its effects, the plaintiff could not cope with his work at Orlando or that he cannot cope with the work on the farm. The plaintiff does not seek damages by way of economic loss for the period after he returned to work to the present; but there is no doubt, and I find, that his capacity for work has been reduced because of the injuries sustained by him. He is not fit for work which would involve him in prolonged standing, prolonged walking, walking on uneven surface, climbing ladders and lifting heavy weights. So far as the plaintiff’s damages for future economic loss are concerned, he is entitled to an assessment of damages on the basis of that incapacity; the loss of a chance.
The plaintiff has restricted his claim for past economic loss to the period from the date of the accident until his return to work on 13 March 1999. For the financial year ended 30 June 1998, his gross earnings were $34,161. He paid tax of $8.144.15. For the period 1July 1998 to 18 December 1998, his gross earnings were $16,004 and he paid tax on that sum of $3,817.80.
The orthoses that the plaintiff wears in his shoes as prescribed by Dr Pickering require attention on a yearly basis at a cost of about $50 to $75.
The present cost of the fusion surgery referred to by Dr Pickering is about $2,000.
Special damages have been agreed at $2,223.30
The plaintiff is entitled to interest on the damages for past economic loss.
Doing the best I can on the material before me, I assess the plaintiff’s damages as follows:
Non-economic loss  $15,000.00
Past economic loss  5,700.00
Future economic loss  45,000.00
Future medical expenses  2,500.00
Gratuitous services  500.00
Special damages  2223.30
Interest  1200.00
$72,123.30
There will be judgment for the Plaintiff against the Defendant in the sum of $72,123.30. I will hear counsel as to costs.

[2003] SADC 59

24 April 2003