Liebeck v Dawsal Pty Limited
[2010] ACTSC 141
•12 November 2010
LIEBECK v DAWSAL PTY LIMITED [2010] ACTSC 141 (12 November 2010)
NEGLIGENCE – Occupier’s Liability – Personal Injury – Tiled external surface – Plaintiff injured after fall on steps outside Kingston Hotel – Serious ongoing leg injury – Allegation that steps were wet and dangerously slippery – Plaintiff acutely intoxicated – Liability contested on basis that the steps were not wet and that the plaintiff did not slip – Whether negligence established – Court not satisfied that steps were wet – Court not satisfied on the balance of probabilities that plaintiff slipped – Negligence not established.
DAMAGES – Personal Injury – Slip and fall – Leg injury – No issue of principle
Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479
Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724
Hackshaw v Shaw (1984) 155 CLR 614
South Tweed Heads Rugby League Football Club Ltd v Cole and Another (2002) 55 NSWLR 113
No. SC 658 of 2003
Judge: Cowdroy J
Supreme Court of the ACT
Date: 12 November 2010
IN THE SUPREME COURT OF THE )
) No. SC 658 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:TREVOR LIEBECK
Plaintiff
AND: DAWSAL PTY LIMITED
Defendant
ORDER
Judge: Cowdroy J
Date: 12 November 2010
Place: Sydney
THE COURT ORDERS THAT:
1. Judgment be entered for the Defendant.
2. The Plaintiff pay the Defendant’s costs.
THE CLAIM
The plaintiff claims damages from the defendant (‘Dawsal’) arising out of an injury sustained by the plaintiff on 14 April 2002. The injury is claimed to have been caused by the negligence of Dawsal. Dawsal denies liability and in the alternative alleges contributory negligence by the plaintiff relating to the cause of his injuries.
PLAINTIFF’S EVIDENCE
Plaintiff’s Evidence in Chief
The plaintiff was born on 24 December 1957 and is currently 52 years of age. At the time of the injury the plaintiff was a regular patron at a hotel known as the Kingston Hotel (‘the Hotel’) located at 73 Canberra Avenue, Griffith, in the Australian Capital Territory. Dawsal is the owner of the Hotel.
On Saturday 13 April 2002 the plaintiff was working as a labourer for a demolition company named Moltoni Adams Pty Ltd. On that day the plaintiff ceased work at approximately 5:00 pm and drove to his home at Chisholm. He changed from his work clothes and then drove to the Hotel, arriving at between 5:30 and 6:00 pm. He met four other fellow workers, including a colleague known as ‘Derek’ at the Hotel. After meeting his fellow workers, the plaintiff began to purchase and consume schooners of Carlton Draught with the others in his group. The plaintiff estimated that he consumed approximately 10 schooners of beer while they played pool. The plaintiff also stated that he did not consume a meal.
Towards the end of the evening three of his colleagues left the Hotel so that at approximately 2:00 am only the plaintiff and Derek remained. Derek and the plaintiff decided to continue their evening by leaving the Hotel and proceeding to Green Square where a number of hotels and nightclubs were located. The plaintiff said that immediately before leaving the Hotel he consumed two shots of Cointreau. He said they were given to him by a hotel employee named Tim.
When it came to leaving the Hotel the plaintiff exited by one of the side exits, known as ‘Maddies’ exit which led onto a covered walkway bordering the Hotel. The walkway was elevated approximately one metre above ground level. His colleague Derek, after exiting via the Maddies exit then parted company with the plaintiff. Derek descended a flight of stairs directly in front of him to the street, whilst the plaintiff made a right hand turn and walked along the covered walkway until he came to a flight of four steps which linked the covered walkway to a gently sloping concrete surface at street level. The covering above the walkway did not extend to covering the steps.
The surface of the walkway was covered in tiles which were described as having a ‘stencil effect’. That surface ended shortly before the commencement of the stairs and instead semi-glazed ceramic tiles formed the surface until the edge of the steps. The tiles continued down the steps to the sloping concrete at ground level. A step tread existed on the edge of each of the steps.
The plaintiff was wearing footwear described as Colorado Boots, which were near new and had a good grip tread.
(a) The Accident
The plaintiff said that as he strolled along the stencilled non-slip area he noticed that there were canvas awnings extending over the walkway. When he reached the steps and walked out from under the canvas awning he testified that he felt a sprinkle [of rain]. He then looked down and saw a sprinkle [of rain] on the tiles.
He says his left foot then ‘went flying past [his] head’ and the next thing he remembers was being on the ground backed up against the retaining wall (of the walkway).
An ambulance was called by an unknown person. The plaintiff states that while being treated at the scene he made a joke with the ambulance driver, saying ‘did you see the car that hit me?’ in an attempt to take his mind off the pain in his right leg. The plaintiff says that he was conveyed by ambulance to Canberra Hospital where his right leg was x-rayed and nothing untoward was revealed. After the hospital staff applied a back slab cast to his leg he was discharged in great pain and was transported to his home where he was placed on his lounge. The plaintiff stated he stayed on his lounge for the next three days. He said he could not telephone anyone because his mobile phone account had no credit.
After three days, the plaintiff’s brother telephoned the plaintiff and was then able to transport the plaintiff to his general practitioner who then referred him back to hospital. He stated that more x-rays were taken and then at the end of the week a cat-scan ultimately found a fracture of his right knee. The plaintiff says that he was then operated upon, spent three days in hospital and was discharged to his home. The plaintiff stated that his mother attended on him for approximately a week, having travelled to be with him from her home on the Gold Coast. He stated that he was unable to place any weight on his right leg for a period of three months and that he required a wheelchair to make himself mobile.
The plaintiff said that during the first week following his discharge he visited the Hotel and saw Mr Stephen Dawn, Hotelier and director of Dawsal. The plaintiff states that in a conversation with Mr Dawn, Mr Dawn asked him how he had injured himself, the plaintiff allegedly responded that his injury was caused outside the bistro, to which Mr Dawn replied with words to the effect of ‘we’re insured, so sue us’.
(b) Subsequent to Accident
The plaintiff was unable to work for over twelve months because of the injury to his right leg. He says he was depressed and had applied to Centrelink for benefits. He states that he has pain in his right leg all of the time, walking downhill particularly and when standing still. He says he used the wheelchair for six months to visit the shops and was often pushed in a wheelchair by his then girlfriend.
During his rehabilitation he states that he did a course through Centrelink to become a driver, since he was incapable of resuming his work as a labourer doing heavy work. He states that he worked as a driver for approximately five months earning approximately four hundred dollars nett per week. He says that during this employment his leg would seize up and he would experience pins and needles because of being required to sit for long periods of time.
The plaintiff then worked for the business known as Roofing Plus. That business required him to fold flashings in a factory. He worked at this business for approximately two weeks.
Thereafter the plaintiff worked as a security guard for Chubb. He was based at the Tidbinbilla Nature Reserve where he was required to sit at a gate. The job also involved a substantial amount of driving which caused him problems of the kind he experienced when he was a driver. He received approximately five hundred dollars per week after tax from such employment. After approximately three months he gave up this work.
The plaintiff then returned to Roofing Plus where he remained for the next two and a half years earning between $700 and $800 per week. He noticed that after stationary periods, his right knee tended to lock up. He felt that his knee was deteriorating and was experiencing pain at night. He said that he was unable to engage in his previous activities of running and cycling.
The plaintiff is now engaged by Stratco, a company which took over the business of Roofing Plus. He works 38 hours per week making garden sheds and gates, and earns approximately $800 dollars per week nett. At this employment he is able to perform his work at waist height on special tables. He does so standing up, and is able to move around while working, but by the end of the working day he finds that his leg has ‘had enough’. He stated that he did not plan to continue in that sort of work because ‘the leg’s slowly getting worse now’.
He uses a walking stick irregularly and says that his knee continues to seize up and that it grinds on occasions. He says that he has lost the agility which he had prior to the accident when he worked as a labourer and he was required to climb under and over reinforcing and building materials. He is currently living with his partner.
Plaintiff’s Medical Evidence
The hospital notes relating to the plaintiff’s initial admission show that the plaintiff was treated in the Emergency Department at Canberra Hospital at 3:02 am on 14 April 2002 for an injury to the right leg and facial abrasions. The cause of the injuries was queried as having resulted from an assault.
The record states ‘Pt [Patient] unable to recall events [and was] unable to remember how he got here’. A diagram shows a haematoma and abrasion to the right cheek.
An x-ray diagnosis is recorded as follows:
There is a minimally displaced comminuted fracture of the distal right femur with extension of the fracture line to the intercondylar groove.
Joint space are maintained and there is minimal joint effusion seen.
The hospital notes confirm that the plaintiff was discharged from hospital on 14 April 2002 but returned on 17 April 2002 where he remained until 26 April 2002. The hospital notes for such dates record that the plaintiff lived alone and was ‘unable to cope at home’. The plaintiff was admitted for rest and analgesia. On 22 April 2002 he underwent surgery of the right knee consisting of an open reduction and internal fixation of right femoral condyle. The diagnosis made at the time is as follows:
An intercondylar fracture extending towards the intercondylar notch is noted. It is associated with minimal displacement. This has been internally fixated with a plate and 13 screws. This appears to be in a satisfactory position. The knee joint space is preserved.
With the exception of the hospital notes, the only remaining medical evidence is a report dated 22 July 2009 of Mr Robin Jackson, Orthopaedic Surgeon and Medico-Legal Consultant. Mr Jackson was instructed by Dawsal to assess the plaintiff and he did so at an interview on 20 July 2009. Dr Jackson noted that the plaintiff attended at the Outpatient Department of Canberra Hospital following his surgery on three occasions, namely 8 May 2002, 5 June 2002 and 3 July 2002. Otherwise the history of the injuries as recorded by the hospital notes is consistent with the report.
It appears that the plaintiff has required no further treatment since 2002.
Mr Jackson stated in his report that the plaintiff complained that his knee ‘locks’ at times. The plaintiff was stated to have difficulty in going down stairs and slopes and to have difficulty kneeling and crouching. The report states that the plaintiff could walk but could not run.
Mr Jackson stated in his report that it was unlikely that the plaintiff would have been able to return to work even on light duties for at least six months after the injury. Thereafter he considered that the plaintiff would have been fit for some form of work on a full-time basis and then within a relatively short period, no greater than one year post-operatively, he should have been able to return to full duties, avoiding heavy manual work involving lifting and carrying. Mr Jackson also considered that the plaintiff was not suited to work where he might have to negotiate rough or uneven ground, ladders or extended number of stairs or where he has to kneel or crouch. Mr Jackson considered the plaintiff’s injuries had affected his ability to lead a normal life for an extended period, namely for at least six months.
Mr Jackson stated that no further treatment was required, apart from continuous use of a static exercycle. He considered that the plaintiff was at an increased risk of developing post-traumatic osteoarthritic change in the knee which, if sufficiently disabling, could lead to a total knee joint replacement at some time in the future. He concurred with the Hospital’s assessment that he would have at least fifteen years good use out of the knee joint before further surgery would be required.
Expert Report
An expert report of Associate Professor DH Morton, Consulting Scientist, was tendered in evidence by the plaintiff. Associate Professor Morton inspected the site where the plaintiff sustained his injuries on 18 December 2002 and states in his report:
3.3 Floor surface and condition
3.3.1 The verandah in the vicinity of the accident site is surfaced with grey semi-glazed 100x200 mm vitrified ceramic tiles laid in a 3 x 1 bond pattern, with 5 mm grouted separation spaces (Figures 8 & 9). The area is essentially horizontal, with only the slightest of drainage slopes (less than 1%), although such downward slope as there is, is directed outwards towards the steps.
3.3.2 The surfaces of the tiles are smooth, with only a slight matte finish.
3.3.3 The tiles are in my opinion well-laid with no irregularities, unevenness or damage such as might be likely to provoke a trip or stumble. As first inspected the tiles were commercially clean and dry.
As to the stairs themselves Associate Professor Morton made the following observation:
3.1.4 The stair treads are surfaced mainly with tiles similar to those in use on the verandah, but are fitted with ribbed bull-nose edging tiles of a “non-slip” pattern. Some of these have sustained minor chipping damage. The verandah is edged with white semi-glazed bull-nose tiles of a different pattern. These are entirely smooth surfaced, with only a slight transverse undulation.
Associate Professor Morton obtained the following history from the plaintiff:
3.2.2 At about 1.30 a.m. Mr Liebeck left the premises by the egress from the “Maddies” nightclub section, turned to his right and walked north approximately 15m along what was then the plain concrete verandah. Intending to use the stairs down to the driveway he walked onto the tiled section of verandah outside the Bistro egress. He recalls observing just as he did so that the tiled surface where he was walking was wet, being spattered or “sprinkled” with what he believes to have been closely spaced raindrops.
3.2.3 Before he was able to react or alter his normal walking gait, his left foot unexpectedly slipped suddenly and violently forward, causing him to fall. The approximate location and direction of the slip indicated by Mr Liebeck is shown in Figures 1, 3 and 4. He is unable to recall details of the immediately subsequent events, and remembers only finding himself lying dazed on the concrete more or less at the base of the steps and deduces rather than recalls that the slip caused him to fall over the edge and onto the steps, and slide down them towards their base. It is said that as a result of the fall Mr Liebeck sustained injuries particularly to his right leg and to his face.
3.2.4 At the time Mr Liebeck was unburdened, was walking at a normal unhurried pace and was wearing a pair of Colorado boots, one of which is depicted in Figures 6 and 7. These have heavily block-treaded polyurethane integral moulded soles and heels, probably of a polyurethane synthetic elastomer compound. The boots have been worn to only a small extent since the accident and remain in good serviceable condition, with only minor wear of soles and heels.
Associate Professor Morton conducted tests to determine the frictional qualities of the tiled area both when dry and when sprinkled lightly with tap water so that a thin but continuous smeared film of liquid covered the tested surface. Having done so he stated his findings as follows:
4.1.3 When wet the floor is treacherously slippery and dangerous for all the test slider sole surfaces, including Mr Liebeck’s boots. The danger arises partly from the moderately high levels of static frictional grip available which allow a substantial sideways force to be applied to the foot, but which fall to much lower levels of grip once the foot has begun to move so that the excess force causes the foot to shoot away violently from under the walker, leading to sudden unexpected and consequently serious falls. These have in my experience been a common cause of injury.
Associate Professor Morton concluded:
5.1 Mr Liebeck would have been very unlikely to slip and fall had the subject tiled floor remained clean and dry.
5.2 When wet the floor is treacherously slippery and dangerous, probably for all conventional footwear sole surfaces, and including Mr Liebeck’s boots. It was therefore very likely for Mr Liebeck to have slipped and fallen if he stepped unawares onto an area of the floor which had become locally wetted due to rain or other causes.
5.3 The low level of lighting prevailing at the time of the accident would have been at least a minor contributory factor to the accident causation in that Mr Liebeck’s ability to perceive and avoid the hazard which caused his fall would have been compromised.
5.4 The accident and injuries to Mr Liebeck were caused by the unsuitable nature and dangerous condition of the locally wet tiled floor provided for his use, the danger probably being aggravated by the difficulty of his perceiving the presence of the liquid under the low illumination provided.
5.5 There are direct causal links between the dangerous nature and condition of the floor provided for Mr Liebeck’s use, his accident, and his consequent injuries.
5.6 The dangers represented by the defects of the floor and lighting were obvious and easily could have been avoided by effective, practical and economic means.
It is worth noting that when tests were made on tiles which were clean and dry, and using the range of footwear sole materials with a spectrum of inherent frictional properties, Associate Professor Morton said:
4.1.1 …For relatively slippery materials such as leather the floor might be considered mildly hazardous but the wearers of inherently slippery footwear could reasonably be expected to be aware of any potential dangers which might be created by their shoes and to be appropriately cautious in their movements for their own welfare.
DEFENDANT’S EVIDENCE
Matthew John O’Neill
Mr Matthew John O’Neill, now a Protective Services Officer engaged by the Australian Federal Police, testified that in 2002 he was employed and worked for Dawsal both at the Hotel and at another site owned by Dawsal named the Civic Club, Lonsdale Street Braddon. Mr O’Neill worked in a number of capacities for Dawsal with his main roles being Duty Manager and Security Manager. Mr O’Neill stated that in 2002 he was Duty Manager at the Hotel on Saturday nights.
Mr O’Neill stated that on such Saturday nights 300 to 750 patrons would attend at the Hotel during the course of an evening and that up to 16 staff were engaged at the Hotel on such nights. His duties as Duty Manager included the monitoring of cash flows, supplies, tidying up the premises and generally surveying the premises.
Mr O’Neill was familiar with the steps where the plaintiff’s accident occurred and described them as one of the main entry and exit points for the hotel. He said he was unaware of any complaints that had been made in respect of individuals slipping on the stairs other than the complaint made by the plaintiff.
Mr O’Neill stated that Dawsal employed another Duty Manager named Tim and both Mr O’Neill and Tim would alternate as duty manager at the Hotel with Tim working weekdays and Mr O’Neill working Saturday nights. Mr O’Neill stated it would have been unusual for Tim to have worked a Saturday night shift at the Hotel.
Mr O’Neill recalls that on the evening of 13 April 2002 he was the Duty Manager at the Hotel. He also recalls seeing the plaintiff at the hotel drinking with a group of friends on that evening.
Mr O’Neill said that he usually closed up the Hotel between 1:30 am and 3:30 am. During the early morning of 14 April 2010, after having escorted the last remaining bar staff to their vehicles and coming back inside the Hotel to do a final light and security check, Mr O’Neill noticed an ambulance outside the Hotel. He walked out of the Hotel and positioned himself at the top of the stairs where he saw a person on the ground being assisted by two ambulance officers. Initially, due to his position and the low lighting, he did not recognise the person but as the ambulance officers assisted the injured person he recognised that it was the plaintiff. The ambulance officers enquired of Mr O’Neill whether he had made the telephone call for the ambulance. Mr O’Neill responded that he did not do so.
Mr O’Neill noticed that the plaintiff was moaning and writhing in pain as he was being asked questions by the ambulance officers. Mr O’Neill recalled that the plaintiff seemed ‘fairly intoxicated’.
Mr O’Neill stated that he looked around for water, debris or rubbish to see what could have caused the plaintiff to fall. Mr O’Neill testified:
…I guess, anytime you happen across an accident or something outside of what you’d call normal you always have a bit of a look around to ascertain what the cause was. I’d asked the ambulance officers what had happened and there was sort of very little information that they’d given me back if anything at all. I’d gone through the process of having a quick look around to see if there was water, debris, rubbish or anything in the vicinity if there was other people in the vicinity of the venue. I wasn’t sure whether it was an accident or whether it was a result of other people.
When asked whether his observations assisted him to evaluate the cause of the accident, Mr O’Neill replied:
--- No not really. From my observations I certainly can’t remember it being a wet night or anything like [that]. There was no ice, glass, any other rubbish on the stairs or in the vicinity of the stairs.
The following exchange then occurred:
HIS HONOUR: When you say you can’t remember it being a wet night do you mean you can’t remember or it wasn’t a wet night? In other words do you have no recollection or do you [have] a recollection that it wasn’t a wet night? That’s what I’m trying to ask you? --- MR O’NEILL: Your Honour, I can’t be 100% sure but from best of my memory, sirs, there was no water or rain on the ground or in the stairs area.
In cross-examination the following exchange occurred:
You say that you didn’t notice any water or rain on the stairs at the time you noticed Mr Liebeck. It’d be fair to say, wouldn’t it, that there may well have been light rain at that time that you didn’t take a lot of notice of?‑‑‑Again, there may have been but I certainly can’t remember it that way.
You don’t remember because it was about eight years ago, is that right?‑‑‑That's correct. I went through a process where I sort of had a look at the surrounding area to try and ascertain the cause of the incident and at that time I didn’t notice that the ground was wet.
A further exchange then occurred:
Well what I want to know is the moment there seems to be conflicting versions. On one hand you said I looked for water, debris and rubbish and you couldn’t remember seeing any there. And in fact you said there’s no water or rain in the stairs area but then you say I didn’t take notice of it. Can you assist us with what your recollection is?‑‑‑Your Honour, given that it was a long period of time ago to the best of my memory I had a look through the area to ascertain if there’d been any rain, any spilt drinks or anything like that on the stairs. I didn’t see any. I didn’t see any evidence of a slip or trip hazard in the area so there was no debris, broken glass or anything like that in the area. But I can’t ascertain 100% categorically say that there was nothing in the area.
Mr O’Neill stated that it was likely a written report was made regarding the incident in an Occurrence Diary held in the Hotel. The Occurrence Diary cannot be located.
Stephen John Dawn
Mr Stephen John Dawn, a Hotelier and the Director of Dawsal, stated that he was familiar with the plaintiff from his patronage at the Hotel and that he had had conversations with him on numerous occasions.
Mr Dawn said he first became aware of the plaintiff’s accident when he was told by the Duty Manager on the day after the accident.
Mr Dawn said that the Hotel catered for approximately two to three thousand patrons per week and that the stairs where the plaintiff sustained his injuries were the main entrance to the Hotel for the bulk of the patrons. There were five entrances to the Hotel in total.
Mr Dawn testified that he was unaware of any other time where a patron had slipped or fallen on the stairs in question.
In answer to the plaintiff’s evidence that a conversation took place between the plaintiff and Mr Dawn following the accident in which Mr Dawn invited the plaintiff to sue the Hotel because it was insured, Mr Dawn stated that he had no such conversation with the plaintiff.
Pharmacology Report
Dawsal also tendered a report by Professor Jason M White, Professor of Pharmacology and Head, School of Pharmacy and Medical Science University of South Australia, dated 20 August 2010.
Professor White was provided with information regarding the level of alcohol present in the plaintiff’s blood when he was admitted to hospital on 14 April 2002. A blood sample was taken at 7:00 am and the ethanol quantity present in the plaintiff’s blood was recorded as 62.3 mmol per litre. Professor White estimated the plaintiff’s blood alcohol concentration at 2.00 am (the time of the accident) would have been 0.362%, with a possible range from 0.337% to 0.387%.
Professor White also took into account the possibility that some of the alcohol consumed by the plaintiff immediately before his fall may not have been absorbed in the blood stream at the time of the accident. Accordingly, Professor White estimated that the plaintiff’s blood alcohol concentration at the time of the fall was 0.332% with a possible range from 0.307% to 0.357%.
Professor White stated the probable effects of plaintiff’s state of intoxication as at 7:00 am on the morning after the accident the accident as follows:
· Impairment of physical movement, usually observed as slurred speech and impaired balance and coordination.
· Some impairment of perception; this would not normally include hallucinations.
· Difficulty thinking and concentrating; marked impairment of intellectual functioning.
· Disinhibition that can lead to risk taking and impulsive behaviour.
· Labile mood; that is, mood can change rapidly and may be extreme in nature.
· Sedation, although this may not be present depending on events in the person’s environment.
· Markedly impaired memory for events that occurred during the period of intoxication; total loss of memory (blackout) is possible.
Further, Professor White stated that:
This concentration of alcohol would have had a profound effect on the plaintiff’s motor skills. He would have had difficulty with any aspect of motor function, even relatively simple abilities like forming words correctly. His balance would have been impaired and he would have had difficulty standing upright without swaying from side to side; this swaying would have been observable. His actions would have appeared uncoordinated and he would have had little ability to make fine motor movements.
Professor White said of the effect upon the plaintiff’s motor skills of the blood alcohol at 2:00 am (the time of the accident):
A blood alcohol concentration around 0.322% would have had effects similar to those described above for the blood alcohol concentration of 0.287%, excepting that the effects would be somewhat more marked. In addition, at this blood alcohol concentration the risk of death becomes significant.
Bureau of Meteorology records
Dawsal tendered Bureau of Meteorology records in respect of daily rainfall observations from stations closest to the area of Kingston for 13, 14 and 15 April 2002. The sites were as follows:
Ÿ Parliament House (1.9 kms from Kingston)
Ÿ Australian National Botanic Gardens (5.5 kms away from Kingston)
Ÿ Ainslie Tyson Street (6.5 kms away from Kingston)
The records show that between 9:00 am on 13 April 2002 until 9:00 am on 14 April 2002, 6 mm of rain were recorded at the Australian National Botanic Gardens site but there was no record of rain at either the Parliament House site or the Ainslie site.
The evidence also disclosed that rainfall was recorded at Canberra Airport from 6:00 am on 14 April 2002 and on 15 April 2002.
The Visual Synoptic observations for Canberra Airport recorded that it was cloudy on the morning of 13 April with cloud increasing in the afternoon and that showers fell on 14 April 2002 at 9:00 am.
CAUSE OF THE ACCIDENT
The Court is satisfied that the plaintiff sustained his injuries in a fall which occurred in the early hours of the morning of 14 April 2002 and that the injury occurred whilst the plaintiff was leaving the Hotel.
The plaintiff acknowledges that at the time of his accident he was intoxicated. The evidence the plaintiff gave concerning his lifestyle suggests that he consumed substantial quantities of alcohol on a daily basis. As 13 April 2002 was a Saturday the plaintiff had spent longer than his usual weekday routine at the Hotel consuming alcohol and playing pool, having been at the Hotel for approximately eight hours. The Court is required to determine whether the plaintiff gave an accurate account of the cause of his injury, namely that he slipped because of the sprinkle of rain on the tiles.
LIABILITY
The plaintiff’s cause of action is founded in negligence. Freudenstein v Marhop Pty Ltd & Ors [2010] NSWSC 724 conveniently summarises the relevant authorities and principles, and accordingly it is not necessary to restate them again individually. It is necessary to state however that Dawsal, as the proprietor of a hotel, owed the plaintiff a general duty to take reasonable care to avoid the foreseeable risk of injury. The test for negligence as stated by the High Court of Australia in Australian Safeway Stores Proprietary Limited v Zaluzna (1987) 162 CLR 479 remains current. In Hackshaw v Shaw (1984) 155 CLR 614 Deane J at 662-663 stated the principle which was adopted by the High Court in Australian Safeway Stores as follows:
[I]t is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship.
In South Tweed Heads Rugby League Football Club Ltd v Cole and Another (2002) 55 NSWLR 113 Ipp A-JA stated at 137:
The fact that a person is a lawful entrant upon premises occupied by another establishes a relationship between occupier and entrant which gives rise to a general duty on the part of the occupier to take reasonable care to avoid a foreseeable risk of injury to the entrant: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
This duty ordinarily concerns risk of injury from the condition of the premises, but this is not an inevitable limitation on the scope of the duty. If, to the knowledge of the occupier, activities conducted on the premises bring about a risk of injury to the entrant, the circumstances may give rise to a duty of care wide enough to encompass a duty to take reasonable care to avoid a foreseeable risk of injury arising from those activities: Canterbury Municipal Council v Taylor [2002] NSWCA 24. Typically, the foreseeable risk of injury in such a case is the risk of physical injury directly caused by the known activities on the premises.
In this instance the Court is satisfied the necessary proximity existed and that Dawsal owed the plaintiff a duty of care. The Court must now determine whether such duty has been breached by an act or omission of Dawsal. This raises the critical question of whether the steps were in fact dangerous as alleged.
The particulars of negligence contained in the Statement of Claim raise fourteen bases of negligence, including claims that the tiles were slippery, especially when wet; that there was no warning signs of the slipperiness of the tiles; that there was no suitable handrail beside the steps; there was no system of inspection to determine whether the tiled steps were safe; and that Dawsal had in place tiles which were dangerously slippery when wet in the knowledge that persons walking on the tiles might well be affected by alcohol. The only evidence relied upon related to the first allegation, namely that the steps were slippery when wet.
The evidence in chief provided by the plaintiff initially made no mention of the fact that he slipped before falling, rather, he said:
I walked out from underneath the covers, I could feel just the sprinkle and I looked down at the pavers and it was too late then. My left foot went flying past my head. And the next thing I knew I was on the ground hanging onto my leg. Backed up to the retaining wall so I had something to lean on, and that’s where I stayed.
In cross-examination it was put to the plaintiff that he had given evidence that he slipped before falling. It was pointed out to the parties by the Court that the plaintiff had given no such evidence. In re-examination he was further questioned in respect of his fall:
Well tell his Honour what you actually – what you did at that time. You looked down, you said you saw sprinkles on the ground, what did you do with your left foot? --- All I seen was the left foot coming up so the right foot must have been slipping but it happened that fast.
Did you feel anything? --- No, there was just sprinkles on the face, looked at the tiles and I’m gone.
The plaintiff acknowledged that he was intoxicated at the time of the fall.
Subsequently the plaintiff in cross-examination gave further evidence on this issue in the following exchange:
Sir, his Honour asked you in relation to best you can recall the mechanism of your fall and as I understand you evidence you indicated to him that as best you can recall your right foot slipped? --- Well the left one was going and here I’m only just surmising that the right one must have been slipping because the left one wouldn’t be fly up.
When further questioned on this testimony, the plaintiff added that ‘Probably both slipped’.
It was then put to the plaintiff that in 2004 when being interviewed by his solicitor for the purpose of preparing a response to a request for particulars, the plaintiff had claimed that it was in fact his left foot that had slipped. The plaintiff then responded:
--- Yes. Well I said the left foot went past my face so it was going straight up in the air so I was obviously falling, was slipping.
The first mention in any of the materials before the Court that the plaintiff had in fact slipped is contained in an entry in hospital notes dated 19 April 2002. That entry, completed by a social worker, relevant records as follows:
Slipped on wet tiles at Kingston Hotel (public liability)
FINDING
The plaintiff bears the onus of proof in satisfying the Court that on the balance of probabilities his injuries were sustained through the negligence of the plaintiff in providing dangerously slippery steps for him to use. The evidence before the Court establishes that it was necessary for the steps in question to be wet before they became dangerously slippery.
The plaintiff’s testimony was not supported by any other witness. Significantly, the plaintiff’s companion on the night in question, ‘Derek’, was not called, although the plaintiff understood him to be in Sydney.
Mr O’Neill’s evidence challenges the assertion of the plaintiff that the steps were wet. Mr O’Neill, as Duty Manager, deliberately observed the accident site in an attempt to determine what had caused the plaintiff to fall. His evidence concerning the condition of the steps therefore carries significant weight. He could not see any water, debris or other cause for the plaintiff’s fall.
The Bureau of Meteorology records state that at Parliament House, a location only 1.9 km away from the hotel, no rain fell on the day that the plaintiff is alleged to have slipped.
In view of the state of intoxication as established by Professor White, the evidence of Mr O’Neill and the Bureau of Meteorology, the Court has no confidence that the plaintiff’s version of the events leading to his fall is reliable. Such conclusion is reinforced by the discrepancy between the particulars provided prior to the hearing compared to the evidence given during the hearing that it was his right foot and not his left foot which slipped, and the fact that the first mention of slipping being the cause of the injury was not made until four days after the accident following an interview with a social worker.
According to the hospital records, the plaintiff had an ethanol quantity in the blood of 62.3 mmol per litre five hours after his accident. Such hospital records state that an ethanol level greater than 20 mmol per litre indicates acute intoxication. There is no question, on the evidence, that the plaintiff was acutely intoxicated at the time of his fall.
The plaintiff claimed that Tim had poured the two Cointreau shots that the plaintiff consumed immediately before departing the Hotel and that he specifically remembered him doing so, ‘because [he was] friends with Tim’. However, since the evidence establishes that Mr O’Neill and Tim alternated their duties as Duty Manager, and the Court accepts that Mr O’Neill was Duty Manager on Saturday nights, it was unlikely that Tim could have done so. Tim was not called to give evidence.
The Court also notes the allegations made by the plaintiff in his oral evidence which had not been made previously. He stated for example that he ‘usually avoided them [the stairs] when they were wet’, and said that he did so ‘Because they were slippery’. The plaintiff continued: ‘they were slippery as soon as anything got spilt on it you seen people go, you know, belly up’. The plaintiff then said that he had seen ‘at least a couple’ of patrons fall on the stairs. In further cross-examination the plaintiff was asked whether he had told anyone he had seen people slip and fall on the stairs and said that he had told ‘friends, people that have seen them as well’. Yet Mr Dawn testified that no complaints had been made about the stairs, despite the fact that there have been between two to three thousand patrons attending the hotel per week over the past 21 years.
Such an allegation had not previously been raised, nor was it mentioned by Associate Professor Morton. The Court is satisfied that the plaintiff’s evidence on this aspect was unreliable.
The Court further considers that the plaintiff’s version of the events at the time of his fall is unreliable. The plaintiff said that he felt a sprinkle and then looked down and saw that there were sprinkles on the steps. Taking into account the acute state of his intoxication, the resultant effect of such intoxication as reported by Professor White and the instantaneous occurrence of the fall, such detailed observations are, to say the least, difficult to accept.
According to the evidence before the Court, the extent of the plaintiff’s intoxication at the time of the accident was such that he was potentially close to death. The consequent impairment to the plaintiff’s faculties leads the Court to conclude that it is unable to place any weight on the plaintiff’s recollection of his fall which he provided to the Court.
As previously stated, the plaintiff possesses the onus of proof on the balance of probabilities to establish that he slipped and fell on the stairs. The Court finds on the basis of the unreliability of his evidence that he has not discharged such onus. Because of the evidence of Mr O’Neill and the records of the Bureau of Meteorology, the Court is unable to conclude that the steps were slippery due to being wet.
Accordingly the Court concludes the injuries did not result from the defendant’s negligence as alleged and that it must enter a judgment for Dawsal in the proceedings.
DAMAGES
Despite the Court’s finding, the Court will indicate its finding on damages had the plaintiff been successful in establishing the liability of the defendant.
The plaintiff’s injuries were disabling and it is not challenged by Dawsal that the injuries he sustained rendered him unable to work for a period of 65 weeks.
The parties agree that if successful the plaintiff would be entitled to an award of general damages arising out of the pain and suffering for his injury. A range has been suggested by counsel between $90,000 and $110,000 for general damages. The Court considered that, subject to contributory negligence, an award of $110,000 would be appropriate general damages.
There is a paucity of medical evidence available in these proceedings. As already mentioned, the only medical evidence relating to the plaintiff’s injuries (except for the hospital clinical notes) is the report of Mr Jackson. Mr Jackson believed that it was unlikely that the plaintiff could have worked for at least six months after the occurrence of the injury and then would only be able to undertake limited work for a further six months. The evidence established that in future he will be restricted in his duties. As he has been a labourer engaged in heavy activities, the impact of the injury could be significant.
Mr Jackson gave a guarded prognosis estimating that approximately 15 years could be expected from the plaintiff’s existing knee but thereafter a total knee replacement may be required.
The Court accepts the complaints of the plaintiff that his knee gives him pain, that it ‘locks up’ and that he has been prevented from undertaking his normal activities. Those activities were limited but nevertheless even cycling (on an exercycle) and walking have caused him problems.
As to loss of wages, there is no dispute concerning the past loss of wages of $52,000. The plaintiff has been motivated to obtain other work but has found that other kinds of work which do not involve heavy labouring may still be unsuitable to him. There is clearly a future wage loss to be incurred.
On the evidence before the Court the plaintiff’s award of damages would be calculated as follows:
General damages $110,000.00 Past wage loss
65 weeks at $800 nett per week$52,000.00 Future Economic Loss
The Court is satisfied that the plaintiff will suffer loss of earning capacity due to his restricted physical ability, possible osteoarthritis and/or knee joint replacement. The Court would allocate one year’s income at the current nett salary of $800 per week.$41,600.00 Interest on general damages
(2% for 8.5 years)$18,700.00 Past medical expenses $582.00 Future Treatment expenses:
Despite the paucity of evidence on the subject, the Court considers that allowance should be made for the prospect of future medical expenses.$5,000.00 Griffiths v Kerkemeyer Claim
A claim has been made under Griffiths v Kerkemeyer (1977) 139 CLR 161 in respect to the five week period during which the plaintiff’s mother and girlfriend attended to him following his release from hospital. The rate is claimed at $22 per hour. Taking into account the fact that there was no one available to assist the plaintiff and the plaintiff’s mother had to travel from Queensland to attend to him, such claim is reasonable.$1,540.00
Future domestic assistance
The Court considers that this claim is too speculative to make an allowance and accordingly declines to do so.- Loss of Superannuation
The Court accepts that there would be a loss of superannuation. Such figure is calculated by the addition of the past and future wage loss assessed at 9%.$8,424.00 Total: $237,846.00
The Court considers however that the award would be reduced by 50% for contributory negligence. Accordingly the Court would have awarded, but for the issue of liability, the amount of $118,923.00.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Cowdroy.
Associate:
Date: 12 November 2010
Counsel for the plaintiff: Mr D.P. Shillington
Solicitor for the plaintiff: Gillespie-Jones & Co
Counsel for the defendant: Mr S.M. Whybrow with Ms C.E. Carnell
Solicitor for the defendant: Moray and Agnew Lawyers
Date of hearing: 20 and 21 September 2010
Date of judgment: 12 November 2010
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