Lanahmede Pty Ltd v Koch
[2004] SASC 204
•16 July 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
LANAHMEDE PTY LTD v KOCH
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Bleby and The Honourable Justice Gray)
16 July 2004
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - STANDARD OF CARE - PARTICULAR PERSONS AND SITUATIONS
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - REASONABLE FORESEEABILITY OF DAMAGE - PARTICULAR CASES - DUTY OF OCCUPIER
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
Appeal against decision of District Court awarding the respondent damages for personal injury as a result of an action in negligence - the appellant occupied and operated Lyndoch Hotel - the respondent was a patron of the hotel assisting to remove an unruly man from the hotel - respondent and unruly man struggled on grassed area in front of the hotel - respondent fell down embankment and suffered injuries to his foot as a result of being struck by a concrete sleeper - consideration of hotel occupier's duty of care to patrons - consideration of statutory and common law duties of care - consideration of foreseeablity of damage - consideration of contributory negligence - appellant owed the respondent a duty of care - standard of care extended to ensuring grassed area was safe for patrons - risk of harm was reasonably foreseeable - respondent not contributorily negligent - consideration of assessment of damages - consideration of extent of injury and loss of earning capacity - District Court judge not in error in finding breach of duty or in assessment of damages - appeal dismissed.
Liquor Licensing Act 1997 (SA) s 42; Liquor Licensing (General) Regulations 1997 (SA) Reg 9, referred to.
Cole v South Tweed Heads Rubgy League Football Club Ltd [2004] HCA 29; Club Italia (Geelong) Inc v Ritchie (2001) 3 VR 447; Gordon v Tamworth Jockey Club [2003] NSWCA 82; Bragg v R.S.L. (2003) 86 SASR 58; Wyong Shire Council v Shirt (1980) 146 CLR 40, considered.
LANAHMEDE PTY LTD v KOCH
[2004] SASC 204Full Court: Perry, Bleby and Gray JJ
PERRY J. I agree that the appeal should be dismissed for the reasons given by Gray J.
BLEBY J: I am indebted to Gray J for his recital of the facts. There can be no doubt that Lanahmede was under a common law duty of care to its patrons. The content of that duty of care must be informed by the fact that patrons will, from to time, become affected by liquor and may become subject to aggressive, disorderly or offensive behaviour. The duty extends to taking steps to ensure that reasonable precautions are taken to ensure the safety from physical harm of those who may become so affected, as well as those who may be affected by such conduct of others.
There was an allegation in this case that Lanahmede failed to provide the plaintiff with any adequate assistance while the plaintiff was attempting to remove the young man at the manager’s request, and that it failed to take any or any adequate steps to remove the young man from the premises at an earlier time.
The trial Judge made no findings about those allegations. There was a difference between the evidence of the manager and the evidence of the plaintiff as to what happened when the plaintiff acted to eject the young man. The Judge said that, if he had to choose, he would prefer the evidence of the plaintiff to that of the manager. Based on the plaintiff’s evidence, it seems that the young man the plaintiff removed from the hotel was “fairly intoxicated”, but had suddenly become disoriented and aggressive after having been “decked”, or punched so that he fell to the floor, by another patron. It was the plaintiff’s immediate reaction, being near the young man and being his work supervisor, to restrain him and to remove him. He grabbed him round the arms “in like a bear hug”.
The plaintiff’s reaction was natural and responsible. He acted before any hotel staff could possibly have intervened. In the circumstances, it would have been dangerous and impracticable to hand him over to someone else to remove, given that the plaintiff already had the young man in a bear hug in order to restrain him. It was after the plaintiff removed him through the side door, with the assistance of the plaintiff’s own work boss, that when he reached a point near the edge of the concrete path and the verandah he began to slacken his grip on the young man, realised that the man was heading for the retaining wall, so grabbed him again. In endeavouring to hold him the plaintiff slipped on the grass before his foot became caught in the depression. What followed is set out by Gray J from the plaintiff’s evidence.
There was no evidence to show that the manager or the hotel staff had become aware of the young man’s state of intoxication before this incident. There was no evidence on which a finding could be made that the management should have taken some steps to remove him beforehand.
In those circumstances the trial Judge did not find, and I could not find, any breach of a duty of care of Lanahmede or its employees in failing to eject the young man either earlier or at the time when he was first restrained by the plaintiff. Furthermore, without much more evidence as to the available options, I would not be prepared to hold that the duty of Lanahmede or its employees to control unruly patrons extended beyond the boundaries of the licensed premises. There was no evidence to show what might have been reasonable in that regard. Whether such a duty existed beyond the licensed premises and the nature of that duty must, I think, await another day.
The trial Judge held that Lanahmede breached its duty 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. The trial Judge said:
“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.”
In fact, there was no evidence as to the practicality of erecting a fence that would restrain a struggling person at or near the level of the retaining wall. There was no evidence as to how easily that might be constructed, whether it was practicable at all, or as to the cost. There was no evidence as to whether the erection of such a fence would be permitted under the Development Act 1993, whether a fence of the necessary height would be permitted on the corner of a major intersection and whether it could be done in a manner that preserves the character of the hotel building itself. No consideration was given as to whether there was some other method of alleviating the foreseeable risk of somebody falling over the retaining wall and injuring themselves. In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48 Mason J said:
“In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position”.
As there was no consideration in this case of possible alternative methods of removing what, on the face of it, was an inherently dangerous situation, I would prefer not to rest any finding of negligence on a failure to fence. It may be that there were more practical ways of dealing with the difference in levels between the verandah and the road so that the hazard was eliminated.
What caused the inherently dangerous situation in this case was the combination of the existence of the bank and the vertical drop in relatively close proximity to an exit point of the hotel, coupled with an obvious failure on the part of Lanahmede properly to maintain the retaining wall and the immediately adjacent surfaces. There was a failure to ensure that the level of the lawn matched the level of the top concrete sleeper, thus creating the trap which caused the plaintiff to overbalance. There was a failure to ensure that the sleeper itself was properly secured so that if someone did slide, trip or fall over the wall they would not be injured, as happened in this case, by the falling of an unrestrained concrete sleeper. The evidence suggested that the plaintiff’s injuries were not caused by the fall but by the dislodged concrete sleeper falling onto his foot.
It is for these reasons that I would uphold the finding of negligence by the trial Judge against Lanahmede.
As to the issues of contributory negligence and damages, I agree with the reasons of Gray J and have nothing to add.
I agree that the appeal should be dismissed.
GRAY J. This is an appeal against a decision of the District Court awarding a plaintiff damages for personal injury as a result of a breach of duty.
Liability
The Facts
At material times the Lyndoch Hotel was occupied and operated by Lanahmede Pty Ltd the appellant and defendant. The hotel was managed by Kevin Blanchard. The hotel included a building, an attached verandah and an outside grassed area.
The hotel was situated at the intersection of Gilbert Street and Lyndoch Valley Road at Lyndoch. It had an elevated position with frontage to both roads. Both roads were sealed and carried traffic. A doorway from the hotel building provided access to the verandah and the grassed area.
The grassed area lay between the verandah and Lyndoch Valley Road. At the edge of the grassed area was a sheer vertical drop of more than a metre to the surface of Lyndoch Valley Road. The distance across the grassed area from the verandah to the vertical drop was about three metres.
A vertical retaining wall supported the grassed area, and prevented its collapse onto the road surface. The wall was more than a metre in height. A concrete path led from the verandah (and the doorway) across the grassed area to the retaining wall and directly to the vertical drop.
The retaining wall, at its base, met the roadway. Photographs of the retaining wall show that it was comprised of layers of concrete sleepers each separated by concrete blocks. The top sleepers, extended a little above the level of the grassed area, but flush with the level of the concrete path. There was no other fencing or barrier.
The top sleepers were uneven, cracked, chipped and broken. They were in poor condition and obviously so. The top sleepers were unstable. At the site of the fall, where the grassed area abutted the sleepers, at a point adjacent to the concrete path, the ground behind the concrete sleeper appeared worn and free of grass, so that there was a hole or depression in the grassed area abutting the top sleeper. At the deepest point of the depression the whole of the depth of the top sleeper was exposed on the grassed side of the retaining wall. The concrete path leading from the verandah was badly cracked.
The hotel building, including the area of the verandah, was licensed. The grassed area between the verandah and Lyndoch Valley Road was not part of the licensed area. However, it was common for patrons to congregate and consume alcohol on the grassed area.
Stephen John Koch, the plaintiff and respondent, was employed at a local winery as a leading hand. On 18 December 1998 he attended work and participated in a ‘Christmas break-up’. Food and alcohol were consumed. This function continued until about 4.00 pm. Following the function Mr Koch and other employees and their partners attending the workers function adjourned to the Lyndoch Hotel. Mr Koch and his wife were regular patrons. They were well known to Mr Blanchard. When the workers party arrived the hotel was crowded. People were engaged in Christmas celebrations.
There had been unruly incidents at the hotel earlier that day. Late in the afternoon a young man at the hotel, an employee of the winery, had too much to drink. He became aggressive. An altercation developed between the young man and another patron. Punches were thrown and wrestling occurred. Mr Koch attempted to calm the young man. Mr Koch felt some responsibility as he was the young man’s work supervisor. There was no suggestion that Mr Koch was adversely affected by alcohol.
Mr Blanchard decided to remove the young man from the building. Mr Koch was concerned to see that the young man did not get into further trouble and assisted in his removal. Mr Blanchard returned into the hotel building and left Mr Koch and the young man struggling outside on the grassed area.
The young man continued to be aggressive and attempted to return to the hotel building. Mr Koch restrained him and scuffling continued. Both men were struggling on the grassed area adjacent to Lyndoch Valley Road. Mr Koch caught his foot in the earlier referred to hollow undercutting a top sleeper. The men fell onto Lyndoch Valley Road. The concrete sleeper forming part of the top layer of the retaining wall dislodged and fell onto Mr Koch as he lay on the road below. Mr Koch described the incident:
Q. Could you just describe what happened again with your feet.
A.I slipped on the grass and my foot went down into a hole behind the top sleeper, and we overbalanced and went over the wall, I landed on top of [the young man] and the sleeper followed and landed on my foot.
…
Q.You have told his Honour that you caught your foot behind a sleeper.
A.Yes.
…
Q.When the sleeper fell, did it land on you, or [the young man].
A.No, it landed on my right foot.
…
Q.When you went over the wall, did your foot jam behind the sleeper.
A.Yes – well, it slipped into the hole and – yes, basically slipped into the hole and dragged the sleeper over as I fell.
Q.So, when you went over, you dragged the sleeper from behind with your foot.
A.Yes, I sort of loosened it, so it wobbled off the wall, something to that effect.
The Trial Judge’s Conclusion
Lanahmede accepted that it owed a general duty of care to Mr Koch, however counsel submitted that Lanahmede had discharged its duty. It was said that the incident was not reasonably foreseeable. It was described by counsel as a ‘freak’ event.
The judge rejected this submission and found that Lanahmede had breached its duty of care toward Mr Koch. He observed:
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.
…
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.
The Duty and Standard of Care
The standard of care owed by an occupier to its patrons is addressed by section 17C of the Wrongs Act 1936 (SA):[1]
[1] Section 17C was added to the legislation by the Wrongs Act Amendment Act 1987 (SA). The Wrongs Act 1936 (SA) became the Civil Liability Act 1936 (SA) following the enactment of the Law Reform (Ipp Recommendations) Act 2004 (SA).
(1)Subject to this Part, the liability of the occupier of premises for injury damage or loss attributable to the dangerous state or condition of the premises shall be determined in accordance with the principles of the law of negligence.
(2)In determining the standard of care to be exercised by the occupier of premises, a court shall take into account--
(a) the nature and extent of the premises; and
(b)the nature and extent of the danger arising from the state or condition of the premises; and
(c)the circumstances in which the person alleged to have suffered injury, damage or loss, or the property of that person, became exposed to that danger; and
(d) the age of the person alleged to have suffered injury, damage or loss, and the ability of that person to appreciate the danger; and
(e)the extent (if at all) to which the occupier was aware, or ought to have been aware, of--
(i) the danger; and
(ii) the entry of persons onto the premises; and
(f)the measures (if any) taken to eliminate, reduce or warn against the danger; and
(g)the extent (if at all) to which it would have been reasonable and practicable for the occupier to take measures to eliminate, reduce or warn against the danger; and
(h) any other matter that the court thinks relevant.
The standard of care owed by Lanahmede should also be assessed having regard to the relevant provisions of the Liquor Licensing Act 1997 (SA). Section 42 provides that every licensee must comply with codes of practice prescribed or approved under regulations.
Regulation 9 of the Liquor Licensing (General) Regulations 1997 (SA) approves a code of practice published by the Licensing Commissioner for the purposes of section 42 of the Liquor Licensing Act. The code of practice imposes an obligation to comply with the code in addition to any licence conditions imposed by the licensing authority. The code establishes guidelines for practices relating to intoxication, disorderly or offensive behaviour and disturbances. The codes provisions include the following:
(1) A licensee must establish and maintain appropriate practices –
…
(b) to deal with incidents of intoxication or disorderly or offensive behaviour to customers.
(2) In particular –
(a) a licensee must ensure that the manager of the licensed premises and persons engaged in supplying liquor to customers have a detailed knowledge of the provisions of the Liquor Licensing Act 1997 relating to intoxicated persons or persons behaving in an offensive or disorderly manner:
…
(ii)section 124 – empowering an authorised person, if necessary, to use reasonable force to –
remove from licensed premises any person who is intoxicated or behaving in an offensive manner; or
prevent the entry of such a person onto licensed premises;
…
(b)a licensee must establish and maintain appropriate practices designed to –
(i)ensure persons engaged in supplying liquor to customers are alert to the signs of intoxication and the potential for offensive or disorderly behaviour; and
(ii)ensure early intervention in incidents of intoxication or offensive or disorderly behaviour of customers with due regard to the safety of staff and customers; and
(iii)promote the effective use of the powers provided by the Act to deal with incidents of intoxication or disorderly or offensive behaviour of customers.
7. Practices relating to disturbances etc.
(1)A licensee must, if the licence authorises the sale of liquor for consumption on the licensed premises, establish and maintain appropriate practices to –
…
(b) protect the safety, health or welfare of customers and staff; and
The Liquor Licensing Act and the code of practice provide the statutory background against which the existence and scope of the common law duty of care are to be assessed. In Club Italia (Geelong) Inc v Ritchie[2] the Victorian Court of Appeal considered the duty of care owed by a club to its patrons under similar liquor licensing legislation and observed:
Persons in the position of the club realise that in the course of their business they are attracting potential trouble-makers to their premises, and they take steps to deal with the resulting danger of violent and other disorderly behaviour. If a person becomes drunk or criminally disorderly on their premises, then it is they who have invited the potential criminal to their premises and created the environment in which the criminal activity has occurred. They are under a statutory duty – we are not here concerned with rights of action for breach of a statutory duty – to expel drunk and disorderly persons and they recognise that they are under a responsibility to maintain order on their premises.
[2] (2001) 3 VR 447 at 457-8 per the Court – see also Gordon v Tamworth Jockey Club [2003] NSWCA 82, Bragg v R.S.L. (2003) 86 SASR 58 at [14-17]
In Cole v South Tweed Heads Rugby League Football Club Ltd Mc Hugh made the following general observations:[3]
The common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. That duty arises from the occupation of premises. Occupation carries with it a right of control over the premises and those who enter them. Unless an entrant has a proprietary right to be on the premises, the occupier can turn out or exclude any entrant — even an entrant who enters under a contractual right. Breach of such a contract will give an entrant a right to damages but not a right to stay on the premises.
The duty of an occupier is not confined to protecting entrants against injury from static defects in the premises. It extends to the protection of injury from all the activities on the premises. Hence, a licensed club's duty to its members and customers is not confined to taking reasonable care to protect them from injury arising out of the use of the premises and facilities of the club. It extends to protecting them from injury from activities carried on at the club including the sale or supply of food and beverages. In principle, the duty to protect members and customers from injury as a result of consuming beverages must extend to protecting them from all injuries resulting from the ingestion of beverages. It must extend to injury that is causally connected to ingesting beverages as well as to internal injury that is the result of deleterious material, carelessly added to the beverages.
Kirby J agreed and observed:[4]
The law of tort exists not only to provide remedies for injured persons where that is fair and reasonable and consonant with legal principle. It also exists to set standards in society, to regulate wholly self-interested conduct and, so far as the law of negligence is concerned, to require the individual to act carefully in relation to a person who, in law, is a neighbour. The Club had a commercial interest to supply alcohol to its members and their guests, including the appellant. Doing so tended to attract them to an early morning breakfast, to induce them to use profitable gambling facilities in the Club's premises and to encourage them to use the restaurant and other outlets where alcohol would continue to be purchased or supplied to the profit of the Club. As McHugh J points out in his reasons, with which I agree, the common law has long recognised that the occupier of premises owes a duty to take reasonable care for the safety of those who enter the premises. That duty arises from the occupation of premises. It extends to protection from injury from all of the activities on the premises, including, in registered premises such as the Club's, the sale of alcoholic drinks.
[3] [2004] HCA 29 at [30] - [31]
[4] [2004] HCA 29 at [91]
The common law duty of care owed by Lanahmede included a duty to protect the club’s patrons from offensive and disorderly conduct and to maintain adequate practices to deal with any incident arising by reason of intoxication or offensive or disorderly behaviour.
In the present case Lanahmede was under an admitted duty to take care with respect of its patrons. It could be expected that patrons would be affected by alcohol with an attendant risk of aggressive, offensive and disorderly behaviour. Lanahmede could also expect patrons’ attention to be diverted to the social occasion particularly having regard to the Christmas celebrations. Patrons were likely to be relaxed and to have a reduced awareness of possible dangers.[5]
[5] Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 per Kirby J at [84]
Lanahmede had an obligation to take care to protect its patrons against dangers from the consequences of unruly conduct and against the risk of injury that might arise. The risk of some untoward incident occurring was not far fetched. An evident danger was the unstable and damaged top sleeper of the retaining wall, the hole or depression adjacent to the top sleeper of the retaining wall and the unguarded vertical drop to the surface of Lyndoch Valley Road.
Foreseeability
In Wyong Shire Council v Shirt the High Court considered the test of foreseeability. Mason CJ observed:[6]
A risk of injury which is quite unlikely to occur, … may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being "foreseeable" we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.
The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.
[6] (1980) 146 CLR 40 at 47-48
Lanahmede’s manager was aware that the troublesome patron had only been removed from the hotel building and that he continued to behave in an unruly manner. He was aware that Mr Koch has assisted with the removal of the unruly patron. It was foreseeable that difficulties may continue on the grassed area. The manager was aware of the poor condition of the top of the retaining wall. It was Lanahmede’s responsibility to control unruly patrons and to remove or minimise the risk of danger to others.
Lanahmede was aware that patrons made use of the grassed area generally for drinking and ongoing social contact. It was foreseeable that scuffling, fighting and wrestling could occur on the grassed area. It was foreseeable that persons scuffling, fighting and wrestling may fall over the concrete sleepers forming the top of the retaining wall and onto the surface of the Lyndoch Valley Road. It was foreseeable that if this were to occur, personal injury may result.
In the present case, it was not far-fetched or fanciful for Lanahmede to foresee that fighting, scuffling, wrestling and the like might occur between patrons. If this arose on the grassed area the danger created by the condition of the top sleepers, the hollowing of the ground and the lack of any adequate barrier or fencing of the vertical drop was foreseeable.
The precise circumstances of an incident need not be foreseen. The incident that occurred in the present case could not be said to be extremely unlikely to occur. The risk in the present case could be described as an obvious risk. The incident was reasonably foreseeable.
Breach of Duty
Lanahmede did not comply with its duty to control unruly or disorderly patrons. To leave the unruly patron on the verandah and grassed area fighting with Mr Koch was a breach of Lanahmede’s common law duty of care. The situation should have been addressed and the unruly patron either controlled or removed so that he would not be a danger to others.
Other steps could have been taken by Lanahmede to minimise or avoid the earlier identified risk of danger. The top of the retaining wall, an obvious source of danger, should have been repaired. The undercutting of the dirt below the top concrete sleeper should have been filled. The top concrete sleeper should have been stabilised and secured. More adequate barrier or fencing could have been put in place.
The absence of any stable and secure barrier or fencing to prevent persons falling heightened the need for Lanahmede to take steps to control the situation. In the present case the unruly patron was only removed from the hotel building itself. As earlier observed, other practical and expedient steps were available. However nothing was done.
The judge was correct to conclude that Lanahmede was in breach of its duty of care to Mr Koch.
Contributory Negligence
The judge rejected Lanahmede’s argument that Mr Koch was guilty of contributory negligence. He reasoned:
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.
This conclusion was open to the judge on the evidence. On the judge’s findings Mr Koch assisted the manager to control the young man. The code of practice required proper controls to be in place. Mr Koch took on the role of attempting to subdue the young man, a task that should have been addressed by Lanahmede.
In a sense, Mr Koch acted as a ‘good samaritan’. He was attempting to protect the young man from further trouble. At the same time he attempted to subdue the young man in the interests of Lanahmede. These circumstances do not give rise to any basis for a finding of contribution. The judge was correct to reject the claim.
Damages
The Injury
Mr Koch sustained a fracture to his right foot as a result of the fall and of his being struck by a falling concrete sleeper. The fracture was to the base of the first metatarsal and extended to the articular surface of the metatarsal and for a short distance up the shaft. One fractured segment was displaced but otherwise there was no significant displacement.
Mr Koch suffered immediate pain. He consulted his general medical practitioner. His foot was observed to be sore and swollen. Pain increased on weight bearing. Radiological examination disclosed the fracture. A laceration was dressed, the foot bandaged and pain relief provided. Mr Koch used crutches for several months. Gradually his symptoms abated. He was able to return to work on 13 March 1999.
After the incident, Mr Koch developed a condition of mixed anxiety with depressed mood. By August 2001 he had recovered from this condition, however he continued to suffer ongoing health problems. The judge found that Mr Koch:
… 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.
The judge concluded that Mr Koch had developed a degenerative condition at the site of the fracture. This condition was likely to produce increased symptoms over time. There was a possibility of fusion to the tarso metatarsal joints. This would provide relief from pain.
Loss of Earning Capacity
At trial Mr Koch was aged 38 years. He left school at 15 years of age. He later qualified as a boilermaker and welder. In December 1999 he was employed as a maintenance worker at a local winery. He held the position of leading hand. He was due to become a projects co-ordinator from 1 January 1999. On his return to work on 13 March 1999 he worked as a project co-ordinator until August 2001. He then resigned. Mr Koch said that he had been working 75 hours a week and was ‘burnt out’.
Following his resignation Mr Koch commenced farm work on his family’s farm. He was responsible for the running of the farm. This allowed Mr Koch to adjust his working duties and thereby restrict his physical activity to his limitations.
The judge concluded that Mr Koch’s capacity for work had been reduced because of his injuries:
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 judge assessed the plaintiff’s damages at $72,123.30. In making that assessment he included an allowance of $45,000.00 for future economic loss. This component of the damages assessment was challenged by Lanahmede.
As earlier observed, Mr Koch was 38 years of age at trial. He suffered an ongoing loss of capacity. He was unfit for periods of long standing or walking, or those activities that required a pain-free right foot. The evidence established that his disability would worsen with time, and that his pain would increase. This in turn would restrict his ability to perform manual tasks. His decision to leave the winery and work in circumstances where he could control his physical activity has allowed him to work within his limitations.
No error has been shown in the judge’s application of legal principle. It is not suggested that he has overlooked any material fact or failed to have regard to any aspect of the evidence. In these circumstances it cannot be said that an allowance of $45,000.00 is outside the range of damages to be awarded for this head of loss. Persistent ongoing pain can be debilitating. It might be said that the allowance for this loss was modest. The assessment of the judge should be upheld.
Conclusion
This appeal should be dismissed
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