Lennard v Ansett Transport Industries (Operations) P/L
[1997] QSC 144
•28 August 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 1813 of 1992
[Lennard v Ansett Transport Industries (Operations) P/L]
BETWEEN:
KEVIN FRANCIS LENNARD
Plaintiff
AND:
ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD
DefendantREASONS FOR JUDGMENT - THOMAS J.
Delivered:28 August 1997
CATCHWORDS: NEGLIGENCE - Occupier’s liability - Plaintiff pushed off left-hand side of jetty - Jetty only had railing on right-hand side - - Quantum - 20%-25% disability of right lower leg.
Counsel:Mr J. Griffin QC, with him Mr G. Thompson for the Plaintiff
Mr D. North SC for the Defendant
Solicitors:Bennett & Philp for the Plaintiff
Drake Walker & Leahy for the Defendant
Hearing date: 18-19 August 1997
IN THE SUPREME COURT
OF QUEENSLAND
No. 1813 of 1992
[Lennard v Ansett Transport Industries (Operations) P/L]
BETWEEN:
KEVIN FRANCIS LENNARD
Plaintiff
AND:
ANSETT TRANSPORT INDUSTRIES (OPERATIONS) PTY LTD
DefendantREASONS FOR JUDGMENT - THOMAS J
Judgment delivered 28 August 1997
On 5 January 1990 the plaintiff, then a 23 year old telecommunications rigger in the air force, was holidaying in the Airlie Beach area. He took an evening excursion to South Molle Island with his companion, Mr Sharp. Such an excursion entailed leaving the mainland by ferry from Shute Harbour on the vessel Capricorn, disembarking on the jetty at South Molle Island between 6.30 p.m. and 7 p.m., walking to the resort, having dinner and drinks, and attending a function which on this particular occasion was called a Polynesian Floor-dance. At 11.10 p.m. the excursion visitors were warned that the vessel would be leaving at 11.30 p.m. from the jetty. In the ordinary course such a visitor would walk back to the jetty, walk along it to the head of the jetty, reembark upon the Capricorn and return to the mainland.
The jetty in question is quite long, probably about 170 metres. As one proceeds from its abutment to the land towards the sea, there is a fence along the right-hand edge but not along the left. I shall refer to the side of the jetty which contains the handrail as the right-hand side of the jetty. The right-hand handrail is about 4'10" high and of solid timber construction apparently designed to withstand a force in the vicinity of 110 kg. The head of the jetty is quite wide, giving the jetty a T-shape. The fence terminates where the head of the jetty commences. The head, which is the area where passengers embark and disembark from vessels, is unfenced.
The head of the jetty is in relatively deep water, but the sea bed rises fairly quickly, and for a considerable distance over the mid-section of the jetty the water is quite shallow, and for a considerable distance from the abutment there is no water at all. The surface beneath the jetty for many metres from the abutment consists mainly of rocks. If one proceeded from the abutment the drop from the surface of the jetty to the ground below increases. By the time one reached the third or fourth pylon the fall would be about thirteen feet.
The right-hand side of the jetty is an obvious enough walkway for pedestrians, about a metre wide, and on its left-hand side has a timber member (about 6" by 6") acting as a “kerb” separating it from the rest of the jetty. The rest of the jetty is a flat surface along which vehicles or pedestrians can travel. The left-hand side of the jetty consists of another horizontal timber member (about 6" by 6") again fulfilling the function of a kerb. There is a plank centre strip in the middle of this part of the jetty, probably for structural purposes, but it looks like another walkway. In point of fact the whole jetty is available for pedestrians unless traffic happens to be using the left-hand section. There are no warning signs or attempts to confine pedestrian traffic to the right-hand section.
On the night in question the plaintiff and his friend had dinner and a certain amount of alcohol, though not apparently an excessive amount. A little after 11.10 p.m., they were walking back to the vessel not far behind a group of four young men with whom they had spoken during the night. All were proceeding towards the jetty. Two other young men, one described as having long blond hair and the other as having short blond hair, were proceeding in the opposite direction. One of those men brushed shoulders with one of the men (named Darren) in the front group of four persons. Darren and the man with whom the jostle had occurred exchanged abuse but each continued on their way. When Darren’s group of four men and the plaintiff and his companion were proceeding along the jetty, probably approaching 10 metres along it, the two blond men returned and commenced physical hostilities. They initially passed the plaintiff and his companion and the long-haired man tackled Darren, both of them falling to the deck of the jetty. The short-haired man aimed a karate kick at the plaintiff’s head and the plaintiff blocked it. Three of the others then subdued that person. Darren and the other man were struggling on the wharf and the plaintiff attempted to break them up. Apparently the short-haired man then was released or broke free from those who were restraining him. He came up behind the plaintiff, took hold of him from behind and pushed the plaintiff over the side of the jetty. The mechanism of that particular assault was the subject of a deal of examination and cross-examination, but in the end I act substantially upon the plaintiff’s description of it, and the description given by Mr Sharp in his statement to the police. In short the plaintiff was propelled in a forward direction. His own feet were still on the ground but he did not manage to get effective purchase in order to resist the propulsion from his rear. Briefly stated, I regard Mr Sharp’s description in his statement of the plaintiff having been pushed off the side of the jetty as a fair description.
The plaintiff fell onto the ground and rocks below, taking the main impact on his right leg. He also suffered a laceration to the chest and a nick to the head.
The jetty was constantly and regularly used by pedestrians. On the day in question the manager of the resort estimates that between 850 and 1000 people would have used it. From time to time there would be crowds on the jetty, sometimes 100 at a time. Events such as the excursion on which the plaintiff came were regularly promoted. The regular Friday night feature was described by management as a South-Sea Island Night and, to the management’s knowledge, was popularly known in the district as the “booze cruise”.
The defendant, which operates the resort, also occupies the jetty and it is the person in control of it and the person primarily responsible for giving consideration to the question whether it was reasonably safe for those who came and went along it and whether steps should be taken to arrange for any alterations that might be thought necessary. The observations that I am about to make are limited to the situation of this particular jetty and the type of usage and clientele of which the management must have been well aware on the evidence in this particular case. Very different considerations might well apply to other jetties.
It was reasonably foreseeable, indeed it was quite obvious that patrons would be leaving the island late at night and there was a strong possibility that such people might be intoxicated. The readily foreseeable circumstances would include fairly large groups of people hurrying to catch the boat back to the mainland, the prospect of jostling, and even of relatively bizarre conduct by persons present. There is also the circumstance that for most of its considerable length, the area beneath the unfenced side of the jetty was covered by rocks, and then by shallow water. Shallow water may itself represent a hazard for a person who might fall, especially as the drop at that point of the wharf is significantly greater.
The erection of a fence on the left-hand side of the jetty, similar to that on the right-hand side, would not have been difficult and it was not suggested that it would have been particularly expensive. It is not suggested on the plaintiff’s behalf that a fence should have been erected at the head of the wharf where boats may tie up or where passengers embark and disembark. That situation would raise far more complex issues. What is suggested is that the straight section of the wharf leading to the head should have been fenced so as to minimise the risk of someone falling from that section. An attempt was made to suggest that the erection of such a fence might somehow interfere with the carrying of loads by vehicles along the jetty, but the evidence completely failed to show any inconvenience of any kind or to any person from the erection of such a fence. The manager of the resort had never seen a load brought in that would have been impeded by the existence of such a fence. There was no other use for this part of the wharf, and in particular it was never used for boats. All boats berthed at the head.
Evidence was called on behalf of the defendant to show that there is no record of any harm having come to anyone by reason of the absence of a fence on the left-hand side of the jetty, during the life of the jetty. The only recorded incidents involving injury in or around the jetty involve quite different considerations. That evidence is of course of assistance to the defendant. Further, evidence was called from Mr Wallace, who has expertise on the design of marine structures. In a concise and useful report, he points out the practices over the past 25 years in the construction and maintenance of jetties around the Queensland coast. Many (probably most) exist entirely without handrailing, some with handrailing on one side (as in the present case) and some with handrails on both sides. This has occurred according to the discretion of the designer or constructing authority.
I am far from suggesting any general need for handrails on both sides of jetties and emphasise that the relevant needs depend very much on location, surrounding risk and ordinary anticipated usage of the structure. Mr Wallace pointed out that there is no Australian marine structures design code, and that in its absence, those concerned with the design of wharves and jetties tend to use the British standard BS.6349 (maritime structures) for reference or guidance. That code includes the recommendation that
“handrailing should generally be provided to both sides of walkways, to the shoreward side of stairways, to the edges of access trestles, and . . [not material].”
Mr Wallace notes that that code refers generally to requirements for industrial wharves rather than recreation or tourist wharves and jetties. That is a relevant observation, but it does not necessarily follow that the needs of a particular tourist jetty would be less than those of an industrial wharf.
Mr Wallace drew attention to design guidelines for wharves and jetties published in New South Wales in August 1990 which included a recommendation for handrails along the perimeter of wharf-decks
“without causing obstruction to berthing vessels and passenger loading and unloading, and especially the section of the access jetty above shallow water, where severe injuries could result from a fall.”
Those guidelines are not directly relevant, because they are guidelines only, they are from another jurisdiction, and they were published after the occurrence of the present accident, although not long after. In my view they simply tend to reinforce what might be thought to be the commonsense notion that it is desirable to provide a protective mechanism, subject to reasonable feasibility, when a sufficient risk or danger can be seen to exist.
Some reasonably foreseeable risks have already been mentioned. To those should be added the fact that children use the jetty along with those who have consumed alcohol and there are risks of slipping, skylarking, bumping and pushing. Those risks are not in my view far-fetched or fanciful (compare Wyong Shire Council v Shirt (1981) 146 CLR 40, 48; Nagle v Rottnest Island Authority (1992) 177 CLR 423, 431). The duty with which I am here concerned is that owed by an occupier to an entrant, and it has been broadly stated as a duty to take reasonable care to prevent injury to entrants from risks that are reasonably foreseeable (Hackshaw v Shaw (1984) 155 CLR 614, 663; Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488).
The defendant submitted (correctly) that the duty of a person in the position of the defendant is not that of an insurer (cf. Jaenke v Hinton (1995) ATR 63, 805). The law does not require prevention of far-fetched or remote consequences, and the measure of its duty is the response of a reasonable person. The prospect of harm however, in the present case, was not in my view so remote (or far-fetched or fanciful if other epithets are to be preferred) as to require no precaution, particularly when a fairly simple precaution could have been taken without significant expense.
Reference was made to Parsons v John Holland-Christiani [1991] 1 Qd R 137, 150, where a finding was upheld that an employer who had failed to provide a barrier that would have prevented a vehicle being driven over the edge of a jetty was not in the circumstances negligent. I agree, with respect, with Dowsett J’s observation that the suggestion that the designer of such a jetty should provide barriers on all seaward edges sufficient to stop any vehicle from being driven over them goes “altogether too far”. However the circumstances in that case are distinguishable on many points, and I do not think it profitable to engage in a comparison of the infinitely different fact situations which arise from case to case. I do not think that the decision in Parsons constrains me to find against the plaintiff in the present matter. A fence along the side of the jetty does not involve the rather more complex problems associated with such a device where ships might berth, and where impediments to free access might have countervailing disadvantages.
Counsel for the defendant also submitted that the extraordinary and criminal nature of the assault in this case produces a break in the causal nexus. Counsel conceded that mischievous acts by third parties may fall within the ambit of foreseeable risk created by a defendant’s negligence (Dorset Yacht Club v Home Office [1970] AC 1004). He submitted however that an intentional and deliberate act such as that in the present case intervenes in effect to make the defendant’s responsibility for the situation negligible or non-existent, citing a passage from Fleming’s “Law of Torts” 7th ed, p 200. That passage concludes with the statement that “the wilful wrongdoing of others cannot ordinarily be accounted a normal risk of the dangerous situation created by the defendant”. The question of causation, however, is to be determined in the end as a question of fact by reference to common sense and experience (March v Stramare Pty Ltd (1990) 171 CLR 506, 515). If a fall from an unprotected and much used structure is foreseeable (as it plainly was here) the fact that the precise way in which the fall happened might not be reasonably foreseeable does not matter. I am satisfied that had a fence similar to that on the other side of the wharf been provided, the present accident probably would not have happened, and in particular that his falling from the jetty to the rocks thirteen feet below probably would not have happened. The existence of a fence would have substantially eliminated the risk to which the plaintiff was subjected; and the attack was not of such a character that it can be said that similarly drastic consequences would have occurred even if the fence had been there.
During argument I raised with counsel the possibility that the plaintiff was guilty of contributory negligence by becoming involved in the hostilities, but counsel indicated that such an issue had not been pleaded and was not regarded as being in issue. Accordingly the only question for me to determine is whether the defendant is guilty of negligence or not.
In my view the defendant was in the circumstances of this particular case guilty of negligence in failing to erect a fence in the area where the plaintiff fell, and that this failure was a cause of the plaintiff’s injury.
Quantum
The plaintiff was born on 21 January 1966. He left school at age 16 and became a TV technician trainee, but did not complete his course before joining the air force in 1984. He enlisted for six years, commencing a course that would qualify him as what he called a Rad Tech. He described this as very difficult and he failed stage three. That meant that he was mustered as a “general hand” and later to telecommunications. He did a tele-communications rigging course in about 1986, and this seems to have been the basis of his work thereafter. He worked at various places including Wagga, Laverton and Glenbrook. He started a few small courses outside the air force, but I do not think that he achieved any particular qualification or expertise through these. His main work for the air force involved duties on out-stations repairing antennas, and “doing microwave links”. Associated with this he did what he called a lineman course. His work was quite physical and he said that it sometimes involved “climbing” approximately six to seven hours a day with the aid of a suspension belt. In 1990 (after over 5 years’ service) he was promoted to LAC.
By the time he went on holidays which led to his accident on 5 January 1990, the time for renewal of his six-year term had not quite arrived, but paperwork had been prepared for his signing up for another six years, and he had decided that he would do so.
His only major injury was a rupture of the posterior cruciate ligament of the right knee. The rupture has left a looseness and instability in the knee joint. He cannot run but can walk for three to five kilometres before the pain is significant. He cannot stay on his feet for long periods and has a problem with steps, slopes and uneven surfaces. Medical experts estimate his loss as between 20% and 25% of the use of the right lower limb. There is also a long-term risk of increased degeneration and Dr Anderson states that there is “a chance” that his working life might be shortened.
After his accident he was treated at Proserpine Hospital where the wound was cleansed and suture and dressings applied. He was discharged after four days. He returned to base at Glenbrook and was on crutches for a time. He returned to work on light duties which involved clerical work. An arthroscopy was performed on 30 July 1990, and reconstructive surgery was performed in November 1990. He was again on crutches for some weeks, and needed a brace for approximately six months. His fiancee cared for him during the convalescence when he needed assistance.
Two months after his operation he was involved in an incident in the company of his brother at a wine saloon. I am not satisfied that the whole story has been told. It seems that his brother was attacked by another man and that afterwards, outside the wine-bar, the plaintiff put his hand through a glass window of the premises. He says that he was trying to get away and that his crutch slipped and that he put up his hand to balance himself. But he is not sure whether he was on crutches or was only wearing a brace. This injury lacerated his radial artery which was eventually repaired with a graft which did not immediately mend. He still had sensory loss and weakness in May 1991. In the end there seems to have been virtually a full recovery from this injury and it does not play any part in any current disability, but it probably contributed to the authorities tending to encourage him to make a decision which led to his discharge from the air force in September 1991. The major basis of his decision was however his leg disability. He had been advised by his doctor that he would not be able to cope with normal duties, particularly his primary role of climbing. Possibly after some influence from those in authority he wrote what was in effect a letter of resignation including the statement
“Due to me being unable to climb and the pain felt doing menial tasks, I feel that I am a burden on my fellow workers, and feel the best solution would be a medical discharge.”
I do not think that the plaintiff can be criticised in any way for making this decision. I accept that even if he were minded to undertake in effect clerical duties, he would be required to be physically fit and from time to time to undertake parades and marching.
Fortunately he has minimised his loss. He was unemployed for one year, but obtained employment, initially in October 1992 as a shop assistant at a delicatessen. He then worked as a process worker for three months and after a brief period of unemployment was engaged as a security guard at the Email factory in Orange. In August 1993 he gravitated to this district because that was where his fiancee and her family lived. Moreover, through a relative of hers, he was recommended for that position in the Email factory and he has retained it to this day. He has some reservations about living in Orange, particularly the cold climate, but is unlikely to leave it unless and until he is sure that he will obtain employment somewhere else. He has now married his fiancee and they are expecting a child.
Overall his work opportunities have been reduced. His expertise as a communications rigger is now of no use to him, and while his earnings in present employment are not substantially lower than those from his former employment, if he were to lose his present employment his chances of reemployment are not as good as they would have been. Further he is physically restricted and is now in the general labour market, lacking particular job skills and training.
Pain, suffering and loss of amenities
This plaintiff was 23 years old when injured and is now 31. He was active in many sports previously, including soccer, but now does not play sport. A more restricted lifestyle and limitation of movement seems necessary in the interests of continued employment. In short, this accident has had a significant effect upon the life of a young plaintiff. I assess damages for pain, suffering and loss of amenities at $40,000. Interest will be allowed on $20,000 at 2% for 7.6 years ($3,040).
Past economic loss
It is probable that but for this accident the plaintiff would have spent another six years in the air force. I do not think it probable that he would have then spent a further term, though it is a possibility. It is more likely that he would at some stage, probably after a second term, have sought employment in the general community.
It is common ground that his loss during 56 weeks when he was unemployed and during 23 weeks when his earnings were substantially lower than they otherwise would have been comes to $24,700. It also seems to be common ground that since he obtained his employment as a security guard his earnings have been roughly comparable with what they would have been in the air force. However, there were certain hidden benefits through continued employment in the air force other than salary. These consisted of free medical care (including payment of his Medicare levy) and a “living out” allowance when he did not live at a base, and some living in benefits when he did. These benefits are difficult to quantify but broadly I regard them as worth approximately $3500 per annum for a period of six years. There should only be a small deduction for contingencies and I shall allow the additional sum of $20,000 for the loss of those benefits up to date of trial.
Past economic loss is therefore assessed at $44,700. Interest will be allowed in accordance with the submission of plaintiff’s counsel, but on the adjusted figures, coming to $15,885.
Past Griffiths v Kerkemeyer damages
This claim is based upon two weeks’ substantial care from his parents in 1990 and his fiancee six weeks later in that year after his operation. Since then it is based upon alleged massages to the knee area totalling at least 1½ hours per week. The plaintiff says that this gives him some relief, but the only medical evidence is that it is a mere placebo. I have some reservation about the quantification of the times spent on such activity, noting that this is an area where in the nature of things contrary evidence or disproof is virtually impossible. I think that in assessments of evidence of this kind courts are entitled to be conservative. I propose to allow a substantial portion of this claim up to the present time but will, in the light of Dr Anderson’s evidence, not allow anything for the future. The nominal claim was for $7,180. Adopting what I have described as a conservative approach, I shall regard it as proved to the extent of $6,000.
The appropriate interest rate is currently a matter of some debate. Counsel indicated that for the purposes of the present case they would not quarrel with the allowance of 2% for the appropriate period. Interest will therefore be allowed at $912.
Future economic loss
This is the area of greatest uncertainty in the case. The principal difficulty lies in predicting his probable career path if the accident had not happened. I do not think that the plaintiff would have been likely to surmount technical courses of any difficulty and it is likely that he had already gravitated into a specialised area of work experience where his future would have been secure, but where the prospects of significant advancement were limited. For a person in his occupation, he seemed to have a poor grasp of distance and perspective. As a witness he did not reveal conceptual ability of any impressive level. However whilst he remained in the air force there were prospects of promotion, with incremental salary increases but these would not have been dramatic. No evidence was called from any of his superiors in the air force as to how he was regarded, and there are some indications in the medical reports and in the limited material which had been obtained from the air force of a less than full satisfaction with his attitude, at least after the accident. These observations are not intended as critical reflections but rather as showing why a conservative approach is called for, and why it would be erroneous to project his future increment and entitlements along the lines that he would have certainly remained in the air force for a given number of years and to assume at the same time that there would be an average achievement in promotion and increased entitlements.
It was submitted that if he had left the air force private courses were available to him and that he could have improved himself and moved into a high income-earning stream. The experience of a former telecommunications rigger (Mr Phillips) who now works for Optus was referred to, but the evidence also indicates that a communications conversion course, which was a one-off programme offered in 1993 to communications riggers to assist them into more main-stream activities, would probably have been necessary. Mr Phillips’ work is mainly in the field of programming works rather than the physical rigging work itself, and he obtained that job after undertaking 12 months’ full-time study. He is still doing a bachelor of building degree course. It is possible that the plaintiff, had he left the air force, would have undertaken and concluded appropriate courses to place him into a higher stream of income, but I do not rate this as a strong prospect. It may be observed that if he has the mental capacity to obtain higher qualifications, employment comparable with that held by Mr Phillips would still be open to the plaintiff.
In my view this plaintiff’s real loss is that of a person whose future income depended principally upon physical fitness. Whilst his loss up to the present time has been successfully minimised, if he lost his present job he might well have significant periods of unemployment before obtaining further work in a competitive labour market. Also he was at the time of his accident engaged in a stable career and that has been interrupted by the accident. He has been placed in a far less protected environment.
It was submitted that there is a continuing future loss of benefits such as those obtained in the air force (accommodation, food and health care) but such a claim is rather speculative beyond the conclusion of a second six-year term, which period had already expired. Of course the possibility that he would have stayed in that employment must be taken into account in his favour, and overall his package in that employment would have been significantly better in those additional respects than that of his present employment. Also, he may have moved into a better stream of employment if he could have controlled his own transition from the air force.
I have performed a number of exercises based upon different criteria. I have not overlooked the possibility of some increase in disability in later years. It is enough to note the results of two quite broad calculations that in my view give some idea of the likely overall level of his loss, recognising that in some respects they err in favour of the plaintiff and in others against him. The present assessment cannot be accompanied by any precise calculations, and in the end a broad calculation is necessary based on broad impressions. It is enough to note that if his loss were taken to be $100 per week for a period of 25 years, the calculation on the 5% actuarial tables would be $75,400, and if at $100 per week over a period of 30 years it would be $82,200.
I assess future economic loss at $80,000.
Other items
Future pain-killers will be allowed at $2,000.
Special damages are established at $9,270.41.
Interest on special damages is $320.
Summary
Pain, suffering and loss of amenities
$40,000.00
Interest thereon
3,040.00
Past economic loss
44,700.00
Interest thereon
15,885.00
Past Griffiths v Kerkemeyer damages
6,000.00
Interest thereon
912.00
Future economic loss
80,000.00
Future pain-killers
2,000.00
Special damages
9,270.41
Interest on special damages
320.00
TOTAL
$202,127.41
There will be judgment for the plaintiff for $202,127.41.
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