Lee Ann Ridgway v Narooma Sport and Game Fishing Club

[2013] NSWDC 248

District Court

New South Wales

Medium Neutral Citation:	Lee Ann Ridgway v Narooma Sport and Game Fishing Club [2013] NSWDC 248
Hearing dates:	16, 17, 18 September 2013
Decision date:	29 October 2013
Before:	Judge MJ Finnane QC DCJ
Decision:	See paragraphs [50] and [51]
Catchwords:	CIVIL - liability - negligence - no contributory negligence by plaintiff - injury - accident - ongoing pain - indignation suffered from accident Damages - heads of damage - no award for gratuitous care
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Hill v Forrester [2010] NSWCA 170 Zanner v Zanner [2010] NSWCA 343 Adeels Palace v Moubarak (2009) 239 CLR 420 Calvert v Stollznow [1982] 1 NSWLR 175 Watson v George (1953) 89 CLR 409 Maclenan v Segar 1917 KB 325-33
Category:	Principal judgment
Parties:	Lee Ann Ridgway (Plaintiff) Narooma Sport and Game Fishing Club (Defendant)
Representation:	JE Rowe (Plaintiff) J Gracie LHD Lawyers (Plaintiff) Colin Biggers & Paisley (Defendant)
File Number(s):	2012/266123

Judgment

1. The plaintiff sues for damages for personal injury suffered on 11 February 2012

Facts of the accident

1. She was injured at about 9pm on 11 February 2012, when she was walking back on a jetty at Narooma.

1. She had been attending a function at the Narooma Sport and Game Fishing Club. The club had premises that opened out onto a jetty. Anybody wanting to walk on the jetty who was at the club would first walk out onto a platform and then on to the jetty. There was a gate on the platform, but it was open. At 9pm, there was dim lighting on the jetty.

1. The plaintiff and two of her friends wanted to smoke cigarettes. This was not permissible at the function and they left the club, she walked onto the platform and then on to the jetty. The plaintiff gave evidence that she wanted to ensure that any smoke from the cigarettes did not get into the premises during the party and so she decided that they should walk to the end of the jetty where they would smoke their cigarettes. Some distance along the jetty, there was a step down onto a lower level. There was evidence, that I accept, that this step was a heavy piece of marble placed on what appeared to be two wooden supports. The marble was not secured in any way on these supports and merely rested on them. There was no sign warning that the step was loose or insecure.

1. The plaintiff and her two friends walked along the jetty under the step and down to the end of the jetty where they had their cigarettes. When she was walking back, she stepped on the marble step and it shifted so that she was flung down onto the deck of the jetty on her right side and then into the water. She said that the step "literally threw me off like a seesaw" (T 16.9.13 p 11 line 42). She suffered bruising along her right side and most significantly fractured her left wrist. As well as this, she suffered shock, and pain along her left side, right up her left arm and along her neck while she was immersed in the water and had her clothes filled with sand. She noticed that her left wrist was displaced while she was in the water and within a few days it was diagnosed as fractured.

1. Her body struck the structure of the jetty as she fell. When she was being taken from the water she felt great pain, particularly on her left side and at her left wrist.

1. She had been at the party since 6:40pm and in that time had consumed three glasses of champagne in which there were also cut strawberries. As well as this, she had eaten food and had drunk some soft drink. In the 50 minutes or so before she went out onto the jetty, she had not consumed any alcoholic drinks because she was taking photographs.

Was the defendant negligent?

1. As long ago as 1917 (Maclenan v Segar [1917] KB 325-33, per McCardie J) it was accepted that:

"where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them." (See also Watson v George (1953) 89 CLR 409 at 424 per Fullagar J; Calvert v Stollznow [1982] 1 NSWLR 175 at 177 per Samuels JA).

1. Section 5B of the Civil Liability Act2002 also has application here, since it deals with the duty of care. It is in the following terms:

"5B General principles

A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

in the circumstances, a reasonable person in the person's position would have taken those precautions.

In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm."

1. Causation is also dealt with in section 5D of the Civil Liability Act. The relevant parts of the section are in the following terms:

A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and

(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability").

...

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."

1. In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420, a unanimous bench of the High Court decided that questions of breach of duty must be considered by reference to the provisions of section 5B (p 437 para 27) and that "the first of the two elements identified in section 5D(1) (factual causation) is determined by the "but for" test: but for the negligent act or omission, would the harm have occurred?" (p 440 para 45). See also Zanner v Zanner[2010] NSWCA 343.

1. These are the tests I must apply in this case because clearly the Civil Liability Act applies to this case.

1. In the present case, the defendant owned the premises at which the party was being held and it can be presumed, hired the premises to the persons who conducted the party. The plaintiff thus entered the premises as a contractual entrant. The defendant made available to those at the party the deck outside the main hall and the jetty adjacent to the deck. The plaintiff, like her companions, lawfully walked on the jetty but the defendant failed to make the premises as safe for the purpose of walking on the jetty as reasonable care and skill could make them.

1. The defendant either knew or ought to have known that the step was loose and that anyone walking on the jetty was likely to step on it. It was foreseeable that there was a real risk of injury to someone stepping on that step. That is what the plaintiff did. She did not know that the step was loose. She was given no warning that it was loose. It would have been a simple matter for the defendant to secure the step and it would have been reasonable for it to do so. Equally easily, the defendant could have given a warning that the step was loose. It failed to do so. Any reasonable person in the place of the defendant would have taken steps to secure the step and thus prevent the likely risk of harm occurring to anyone who stepped on it and/ or given an appropriate warning. The defendant did not do anything to secure the step, nor did it give any warning. The Plaintiff suffered injury as a result of stepping on the step.

1. But for the failure of the defendant to secure the step or at the least to warn the plaintiff it was loose and dangerous, the accident would not have happened and thus the provisions of sec 5D are satisfied.

Contributory negligence

1. Section 5R of the Civil Liability Act 2002 is in these terms:

"5R Standard of contributory negligence

The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.

For that purpose:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time."

1. It was suggested by the defendant that the plaintiff's drinking of champagne some time before this accident occurred should cause me to find contributory negligence on the basis that she was under the influence to some extent, but I am not persuaded that this is so. As I have pointed out earlier in this judgment, the unchallenged evidence of the plaintiff was that she ceased drinking champagne 50 minutes or so before she went outside to smoke a cigarette. There was no evidence that she was unsteady on her feet, slurring her words or doing anything suggestive of her being adversely affected by alcohol.

1. In my opinion, the defendant has not discharged the onus upon it of establishing contributory negligence on the part of the plaintiff because it has failed to establish in what way the plaintiff was negligent. The evidence does not show that the plaintiff was intoxicated, nor does the evidence show that any intoxication that may have been present contributed in any way to the plaintiff placing her foot on the loose step.

1. The defendant has not shown that the manner of the plaintiff's putting of her foot on the step, was in some way negligent. She was clearly entitled to assume that the step was properly secured and it was not.

1. The plaintiff is entitled to succeed against the defendant with no discount for contributory negligence.

Damages

1. Following the accident, the plaintiff had to be assisted out of the water and into the club premises. Complaints made by her at the Moruya District Hospital and evidence given by her establish that she struck the right side of her body on some part of the jetty as she fell to her side and when she fell into the water she braced herself with her left hand and damaged her wrist when she fell through the water onto the sand or mud under the water. She damaged her ribs, which were possibly broken, suffered bruising down the right side of her body and a fractured wrist. A backslab was placed on her left arm and wrist on the next day.

1. She suffered very severe pain from these injuries and particularly up her left arm and across her left shoulder. The plaintiff presented in court as someone with an anxious personality. She was clearly very overweight and she is a smoker of cigarettes.

1. By occupation she is a registered nurse with many years of experience, who at the time of the accident was working part time, 20 hours per week, but sometimes doing almost a full working week. I considered she was an honest woman who tried her best to give evidence as clearly and accurately as she could and I accept her evidence that the pain in her wrist and left thumb was so great that she could not go back to work until 11 November 2012. She has suffered pain in the wrist, left thumb, left arm and shoulder since the accident. She has also suffered continuing pain around the ribs that she broke.

1. A considerable attack was made on her reliability and it was suggested that she was fit for work as early as June 2012. An X-Ray report of 30 March 2012 indicated bony union of the distal radius with no residual deformity and no carpal bone fracture. However, she continued to feel pain and a bone scan on 19 June 2012 found "active bone remodelling" at the fracture site of the left distal radius, suggestive of non union. There was also increased activity in the 1st CMC joints in keeping with arthritis.

1. Dr Bodel, whose reports I have read and whom I accept, regarded her as being unable to work until November. This was because of pain and stiffness in her wrist. It was also his opinion that the fall and associated fracture of the wrist caused an aggravation, acceleration, exacerbation and deterioration of the arthritic changes he found in the carpometacarpal joint of her left thumb and that continues.

1. Dr Bodel has examined her three times and has dealt with a report on her by Dr Smith. I consider that Dr Bodel's consideration of Dr Smith's report makes sense. I accept Dr Bodel in preference to Dr Smith, because Dr Bodel's opinions, in my view, are more in accord with the established facts.

1. Furthermore, she was receiving care from her friends the Gleesons and from Mr Bouten until that time, on and off. What was even more striking was that she was unable to pay her debts because of her lack of income and became bankrupt. I accept her evidence that this caused her some distress and that if she had been able to return to work at an earlier time, she would have done so.

1. I also accept that when she returned to work, she found difficulty in doing some of the heavy work associated with nursing and that she will continue to have such difficulty. She continues to accept help from her friends in carrying out various household tasks.

1. She complains of pain in her neck, headaches, soreness still in her ribs, continuing pain in her left wrist and when she breathes, restrictions in movement in her neck and cervical spine and a loss of libido. I accept that she genuinely feels pain in these areas of her body.

1. At the time of the accident, she had a sexual relationship with Mr Bouten. She resumed living with him, broke up with him and then resumed the relationship again. I am not entirely clear on whether she still has no sexual activity or whether it is restricted by pain, but she was certain that it would return to normal in the future. Her problems with loss of libido were genuine and caused her distress.

1. She has spoken also of difficulty in driving long distances, but it seems to me that she can drive for 3 to 4 hours at a time on occasions. On occasions up till the trial, she has driven her car quite long distances, but with the assistance of one or other of her friends.

1. A consideration of these matters has caused me to reject the submissions that she could have returned to work earlier than she did.

Damages - specific heads

1. She is entitled to damages for her non-economic loss. She is also entitled to damages for her economic loss from the date of the accident until she returned to work.

(a) Non-economic loss

1. She suffered a considerable indignity in being dumped in the water at the side of the jetty, while a party was going on, as well as severe pain to those parts of her body that were injured. She had to be helped from the water, cleaned up and taken to hospital for treatment.

1. The consequence of the injury was that she was unable to work until November of that year and she suffered the humiliation of becoming bankrupt because she could not pay her debts. She also became dependent on others to help her to live and she found this humiliating to be so dependent. Until the accident, she led a very independent and fulfilling life.

1. She suffered pain and inconvenience from the date of the accident until she returned to work. She continues to suffer pain and feels her wrist is weak. The arthritis in the thumb of her left hand has been worsened by this accident and that will continue permanently. She can do all the work of a nurse but is anxious about her wrist and calls on others to assist her with the physical aspects of her job. She continues to get assistance of others and this is likely to continue. Her need for this assistance is supported by Dr Bodel. For reasons I give below she is not entitled to damages under section 15 of the Civil Liability Act, but her damages for non economic loss should include something to compensate her for the loss of her independence and her need to rely on others.

1. I have decided she should receive damages of 28% of a most extreme case.

(b) Economic loss

1. In my opinion, the evidence entitles her to damages for her total loss of income as a nurse between the date of the accident and the time she returned to work. She has given evidence that she is moving into supervisory jobs and this will mean that she has no actual economic loss from the time she returned to work.

1. However, it is just and appropriate that I should award her a cushion against the possibility that she cannot continue with her work at a supervisory level. I intend to award her a cushion of $30,000.

(c) Care- Civil Liability Act section 15

1. Section 15 is in the following terms:

"15 Damages for gratuitous attendant care services: general

In this section:

"attendant care services" means any of the following:

(a) services of a domestic nature,

(b) services relating to nursing,

(c) services that aim to alleviate the consequences of an injury.

"gratuitous attendant care services" means attendant care services:

(a) that have been or are to be provided by another person to a claimant, and

(b) for which the claimant has not paid or is not liable to pay.

No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that:

(a) there is (or was) a reasonable need for the services to be provided, and

(b) the need has arisen (or arose) solely because of the injury to which the damages relate, and

(c) the services would not be (or would not have been) provided to the claimant but for the injury.

(3)   Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided):

(a) for at least 6 hours per week, and

(b) for a period of at least 6 consecutive months.

(4)   If the services are provided or are to be provided for not less than 40 hours per week, the amount of damages that may be awarded for gratuitous attendant care services must not exceed:

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(i) in respect of the whole or any part of a quarter occurring between the date of the injury in relation to which the award is made and the date of the award, being a quarter for which such an amount has been estimated by the Australian Statistician and is, at the date of the award, available to the court making the award-that quarter, or

(ii) in respect of the whole or any part of any other quarter-the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

(5)   If the services are provided or are to be provided for less than 40 hours per week, the amount of those damages must not exceed the amount calculated at an hourly rate of one-fortieth of the amount determined in accordance with subsection (4) (a) or (b), as the case requires.

(6)   Except as provided by this section, nothing in this section affects any other law relating to the value of attendant care services."

1. As a matter of the application of the ordinary principles of statutory construction, what the plaintiff must prove is:

1.   Services of at least 6 hours per week

2.   Provided over a consecutive period of 6 months.

1. These two requirements have been called "the intensity requirement" and "the duration requirement" (See Hill v Forrester [2010] NSWCA 170 per Sackville AJA paras 93-98). What must be shown is that services of at least 6 hours per week have been provided during a continuous period of 6 months and if services are provided after the 6-month period they are 6 hours per week.

1. The evidence about this was quite uncertain. For a period of up to 4 months, the plaintiff lived with Mr Bouten who looked after her, but for exactly how many hours per week was uncertain. If I were to find that he cared for her for at least 6 hours per week, there is no basis for concluding that the duration of this was a continuous period of 6 months. The plaintiff's evidence does not bear this out, nor does the evidence of Mr Bouten.

1. I am prepared to find that after she broke up with Mr Bouten, she was assisted by Mr and Mrs Gleeson, but for how many hours per week is not clear and, in my opinion, the evidence establishes that there was a break between the help being provided by Mr Bouten and by the Gleesons.

1. It follows, therefore, that I cannot award her any damages under section 15 of the Civil Liability Act.

1. At the same time, however, it is clearly established, in my opinion, that Mr Bouten provided significant care to her for at least 3 months and then after a gap of some weeks, he continued to provide care again. The Gleesons also provided care to her in their own home when she stayed there and at her home as well. Both Mr Bouten and the Gleesons continue to help her in various ways in her home and with such activities as shopping.

1. She cannot claim damages under sec 15 for this assistance and in my opinion, there is no basis for giving damages to enable her to retain a professional carer or for past services at the rate that would have been charged by a professional carer.

(d) Superannuation

1. She is entitled to an award for loss of superannuation up till the time of her return to work. She has no entitlement to any separate damages for any loss of future superannuation. The lump sum cushion for the future embraces any possible loss.

1. She is entitled to the payment of her out of pocket expenses. These have been agreed.

(e) Future medical expenses

There is a claim for future medical expenses. I am not satisfied that there will be any such need. She does not need any further operative treatment. I make no allowance under this head.

Decision

1. Adding these amounts, the plaintiff is entitled to damages as follows:

Non economic loss 28% of MEC ($551,500) $77,000

Economic loss $38,342

Future economic loss - cushion $30,000

Superannuation $4217

Out of pocket expenses $2652

Total $152,211

1. There will be a verdict for the plaintiff in the sum of $152,211 and judgment accordingly. I will hear the submissions of the parties on costs.

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Decision last updated: 02 January 2014