Lloyd v Noosa North Shore Caravan Park
[2007] QDC 302
•16 November 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Lloyd v Noosa North Shore Caravan Park [2007] QDC 302
PARTIES:
LLOYD
Plaintiff
v
NOOSA NORTH SHORE CARAVAN PARK
Defendant
AND
GEORGE PRESTON
Third Party
FILE NO/S:
2915/02
DIVISION:
Civil
PROCEEDING:
Personal injury allegedly caused by the negligence and/or breach of contract
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
16 November 2007
DELIVERED AT:
Brisbane
HEARING DATE:
21 August 2007
JUDGE:
Searles DCJ
ORDER:
(a) the defendant to pay the plaintiff damages of $23,909;
(b) the defendant’s claim against the third party dismissed.
(c) defendant to pay costs of plaintiff and third party to be assessed subject to the defendant’s right of further argument..
CATCHWORDS:
Occupiers’ Liability ; Statutory Immunity from Liability under s. 184[2] Workplace Health & Safety Act 1995;
LEGISLATION:
Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) s 10 Commonwealth Constitution 1901 s 109 Law Reform Act 2005 (Qld) ss 5, 10 Trade Practices Act 1974 (Cth) ss 6(3), 52 Workplace Health and Safety Act 1995 (Qld) ss 7, 93(1), 96, 98, 184(2)
Cases considered:
Astley & Ors v Austrust Ltd (1999) HCA 6
Brooks v Ticor Chemical Company Judgment [2003] QSC 180
Calin v Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33
Chapman v Luminis (No. 4) (2001) 123 FCR 62
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Delacour v Australian Meat Holdings Pty Ltd [2005] QDC 109
Hackshaw v Shaw (1984) 155 CLR 614
Henjo Investments Pty Limited v Collins Marrickville Pty Limited (No. 1) (1988) 39 FCR 546
Henley v State of Queensland and Queensland Rail [2005] QDC 094
Ibraham v Myer Queensland Stores Ltd 300 QLD 14
Jones v Dunkel (1959) 101 CLR 298
Kenneth Roy Cooper v Gladstone City Council [2002] QDC 174
Manwaring v Smorgon Steel Pty Ltd [2000] QDC 413
Murphy v Council of the Shire of Burnett [2006] QDC 20
Ryan & Ors v Etsa & Ors (1987) 47 SASR 220
Treloar v Dache-Haven Pty Ltd (2004) QDC 44
Watson v George [1953] HCA 41; (1953) 89 CLR 409
Wyong Shire Council v Shirt (1980) 146 CLR 40COUNSEL:
Mr Tony Williams for the plaintiff
Mr Vince Brennen for the defendant
Mr S. Farrell for the third party
SOLICITORS:
K.M Splatt & Associates for the plaintiff
Minter Ellison lawyers for the defendant
CLS Lawyers for the third party
This is a claim by the plaintiff for injuries sustained at the defendant’s caravan park/camping ground when she fell over a large rock when returning from the toilet in the early hours of the morning of 1 May 2000. There is no issue that the plaintiff was on the defendant’s premises lawfully and as a paying guest and the defendant accepts that it was an implied term of the contract between it and the plaintiff that the premises would be reasonably safe for the plaintiff’s use for the duration of the period of the agreement. I find that the defendant was the occupier of the premises at all relevant times.
The defendant joined the third party, Mr.Preston, and seeks Indemnity or contribution from him if the defendant is found liable to the plaintiff. Mr. Preston was the defendant’s workplace health and safety officer.
The plaintiff and her then partner Mr Ferguson arrived in his Nissan Pathfinder Vehicle, and booked into the defendant’s camping ground at around 9.30 am on 30 April 2000, the Sunday of the Labour Day long weekend. They then visited their friends Mr and Mrs Hall at their caravan site located next to where the plaintiff and Mr Ferguson ultimately pitched their tent later that day. They remained there for some 30 minutes before driving in convoy with the Halls on a daytrip to the beach.
Shortly before dusk, the plaintiff and Mr Ferguson returned from the beach and erected their tent. At some time during or after that they and the Halls were watching some Lorikeets and Galahs which can be seen in Exhibits 6 and 7, being photographs taken by Sonja the daughter of the Halls. The lighting in Exhibit 6 appears more abundant than in Exhibit 7 suggesting to me that the latter was taken some time closer to dusk than was Exhibit 6. Significantly Exhibit 6 shows a dark rock positioned between two posts, one with white paint on it immediately in front of the Maverick four-wheel drive vehicle owned by the Halls and near the front of the plaintiff’s tent.
In Exhibit 7 the two posts can be clearly seen but the offending rock is almost invisible to the naked eye because of the fading light.
The plaintiff said she and Mr Ferguson erected their three-man silver dome tent and tied the back of the tent to a huge tree-stump which is visible in another photograph, Exhibit 25. She said she saw the two posts but not the rock when erecting her tent.
That evening the plaintiff, Mr Ferguson and the Halls went to dinner at the High Tide Hotel on the premises returning to camp at about 9.00 pm. After chatting with the Halls in their caravan annexe, the plaintiff retired at around 10.00 or 11.00 pm.
At about 2.00 am the plaintiff left her tent to visit the toilet facilities in the nearby amenities block. There was no defined path from the plaintiff’s tent to the amenities block. Exhibit 15 is a sketch prepared by the plaintiff showing the location of her camping site, the path she took to and from the amenities block. The front of her tent faced the direction of the rock and the two posts, the former being positioned in a line to the right of the centre of the front exit flaps of the plaintiff’s tent, if one was standing at the rock facing the tent, and about three feet away from them.
The plaintiff exited the front of the tent, turned left and walked around the corner of, and then along the left hand side of, the tent leaving the rock behind her. She then continued across a grass covered area leaving a vacant concrete caravan annexe pad on her left before crossing a gravel roadway. The amenities block was on the other side of that roadway.
On the return trip she followed generally the same general route in reverse except that, when reaching the tent, she walked along leaving its side on her right but walked a bit further out from it than on the trip to the toilet. As she rounded the front right hand corner of the tent to her right (right hand side facing the front of the tent) she walked wider on that corner than she had earlier and fell over the rock incurring a large gash under her left knee requiring eighteen stitches.
Her evidence was that she tripped on a little ledge underneath the rock and ended up landing on top of the rock. The evidence of Mrs Hall was that she also visited the toilet some time earlier than the plaintiff and that at the time of the plaintiff’s accident it was raining and was still raining when she and her daughter reported the incident to the defendant’s office. I consider that Exhibit 6 (photograph of the rock) depicts a dark section at the bottom that could well be the ledge referred to. Certainly that photograph evidences sharp non-rounded edges on the rock near the middle and towards the top.
The plaintiff’s claim is framed in negligence and/or breach of statutory duty and/or breach of duty of care and/or breach of contract and the breaches relied upon, in general terms, are: -
(a) Failing to have the premises adequately lit;
(b) Failing to have the offending rock clearly marked so as to be visible after dark by painting and/or installing reflectors on it;
(c) Failing to remove the rock;
(d) Locating the rock between two painted and visible guide posts; and
(e) A catch-all allegation of failing to take any or any adequate precautions for the plaintiff’s safety.
No statutory duty was particularised and the plaintiff’s claim proceeded in contract and negligence.
The defendant in its amended defence admitted the existence of a duty of care owed to the plaintiff in both contract and at common law but denied that there had been any breach of contract or negligence asserting that any injuries the plaintiff suffered were caused or contributed to by her own negligence in: -
(a) Failing to keep a proper look out;
(b) Failing to pay due care and attention;
(c) Failing to observe and avoid the subject rock when it was obvious;
(d) Failing to carry a torch or other means of illumination when moving around the defendant’s premises after sunset; and
(e) Failing to have due regard for her own safety.
Duty of Care
His Honour McGill SC DCJ in Treloar v Dache-Haven Pty Ltd[1] undertook a thorough analysis of recent authorities on occupier’s liability. Whilst lengthy, the following passage identifies the relevant principles elucidated by His Honour: -
[1] [2004] QDC 44
“(28) The starting point for any consideration of the law in this area is the decision of the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, where the majority said at p 488 that the circumstances that the respondent was a lawful entry upon the land of the appellant established a relationship between them which of itself sufficed to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. It is therefore clear that in the present case there was a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff. In that case the relevant premises were commercial premises, a supermarket, and the plaintiff respondent had slipped on the vinyl-tiled floor of the foyer area which had become wet or moist because it was a rainy day. The trial judge had dismissed the claim and the Full Court of Victoria ordered a new trial and that decision was not interfered with on appeal to the High Court, although both the Full Court and the High Court recognised that the result of a trial on the basis of the law which ought to have been applied might well not be any different from that in the first trial where the plaintiff failed.
(29) It was foreseeable that a person might slip and fall in the premises; Phillis v Daly (1998) 15 NSWLR 65 at 74. People can suffer serious injuries as a result of falling, and indeed if the person happened to be in the vicinity of the top of stairs, might as a result of the slip fall down the stairs. That follows inevitably from the circumstances that people do slip and fall from time to time, and that falls downstairs can cause injury, indeed serious injury. But it does not necessary follow that an occupier is negligent for failing to have a particularly slip resistant surface on any flooring where people are likely to be walking. The question is, what would a reasonable man do in the circumstances by way of response to the foreseeable risk; Hackshaw v Shaw (1984) 155 CLR 614 at 666 per Deane J, adopted by the majority in Zalusna at p 488.
(13) This raises the considerations referred to by Mason J in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47:
‘The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed for the reasonable man placed in the defendant’s position.’
(31) This sort of balance exercise was adopted by the Court of Appeal in Ibraham v Myer Queensland Stores Ltd (Appeal 6505/96, 1.8.97, Unreported) where the court upheld a trial judge’s finding that there was no negligence on the part of a shopping centre occupier in having a small step at the foot of a ramp on one side of a pedestrian crossing within the centre, when the plaintiff had tripped on the step and fallen, suffering injury. There was no dispute that there was a duty and a foreseeable risk of injury, but the court noted that the small step was readily visible, and accepted that the risk of injury from the step was extremely small. They were a common feature in the Brisbane area. Although the ramp could have been easily constructed without a step, and the step could be reduced or eliminated at a small cost, as was done after the accident, there was some disadvantages in this course, in the loss of a warning to blind persons and some impairment of efficiency in the storm water drain after heavy rain. There is also the consideration that the step was higher than the maximum height specified in the Australian standard on access by the disabled. Nevertheless, the trial judge considered that in balancing the relevant factors it was not shown that the presence of the step amounted to negligence and that position was upheld on appeal. My impression overall from that judgment is that the low risk of injury and the obviousness of the condition were important considerations in leading to the conclusion that a reasonable man would not have done more to avoid the risk of injury; that is, would not have been concerned to make the ramp safer, although that could have been relatively easily done.
(32) In Phillis v Daly (1998) 15 NSWLR 65 the New South Wales Court of Appeal allowed an appeal from a judgment in favour of a plaintiff against the occupier of a hotel where the plaintiff had injured her ankle as a result of stepping on to a log in a car park in the course of walking towards the hotel. The hotel was in a rural area and the log had been there for a long time. It was clearly visible and the plaintiff knew it was there. The log was somewhat irregular and when the plaintiff stood on it her ankle twisted over and she fell and suffered injury. The court held that there was a duty owed to her, the issue was whether there had been a breach of such duty. Reference was made to Shire Council v Shirt. The difficulty caused by the irregularity of the log could have been overcome either be removing the irregularity or by removing the log. However, there was nothing hidden or unusual about the situation.
(33) Mahoney JA said at p 47 that “two relevant factors to take into account were that the risk was ordinary and that it was obvious.” He also gave an example which illustrated the proposition that it was not negligent merely for there to be some risk of injury which could be but was not minimised or removed. Samuels JA at p 69 also referred to the circumstance that the probability of such an injury was low and the magnitude of the risk slight and continued: -
‘The logs constitute a traditional, visually agreeably way of serving these functions (keeping motor vehicles away from the front of the motel) and I think that at the present time, where environmental considerations are rightly regarded as an important, aesthetic factors have their place in the calculus of negligence in circumstances such as these.’
However, His Honour said that even disregarding that factor the chance of a visitor coming to grief in such circumstances was so slight as to require no precaution omitted by the occupier: p 69.
(34) All of these decisions were referred to in the judgment of the Court of Appeal in Jaenke v Hinton (1995) AUST Tort Rep. 81-368. In that case the court held that there was no negligence in circumstances where the plaintiff had fallen as a result of stepping on a garden hose while walking (as a lawful entrant) across the front yard of the defendant’s house. Pincus JA, at p 62, 808 noted that the test was not that of someone who was most unusually, or obsessively, apprehensive of harm to others. Although a garden hose could easily have been removed from the lawn, by being coiled up out of the way, and there was no good reason for leaving it lying on the lawn, the court concluded that, as Thomas J said at p 62, 809: -
‘The presence of (a common garden house) presented too small a risk to create a duty to remove it.’
Williams J at p 62, 810 noted that such hose is a common feature found in most suburban yards.
(35) In the light of these authorities it is clear, in my opinion, that, in the area of occupier’s liability at least, it is not enough to establish negligence merely to show that there is some foreseeable risk of injury and that there was some step available which would have been relatively easy and inexpensive which would have reduced that risk. As to the last of these points, there is the further difficulty in the present case that there is no evidence as to why the plaintiff came to fall, particularly if one rejects, as I do, the evidence of Mr Smolakovs as to the floor being excessively slippery. There may easily have been something on the floor which made it more than usually slippery, or indeed there may have been something on the plaintiff’s shoe; she said she also had a slip as she was coming into the shop (p 10) and, that must raise that possibility.”
Given the concession by the defendant as to the existence of the requisite duty to the plaintiff both in contract and at common law, the sole issue between the plaintiff and the defendant on liability is whether or not there has been breach of that duty. The contractual duty of care is concurrent and co-extensive with the duty of care in tort for the purposes of s 5 of the Law Reform Act 1995 in that the plaintiff relies on the same facts or matters in both causes of action. The question then is what would a reasonable person have done in the circumstances of the defendant by way of response to the admitted foreseeable risk of injury to the plaintiff. See Hackshaw v Shaw[2].
[2] (1984) 155 CLR 614 at 666 per Deane J adopted by the majority in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
The relevant considerations in addressing this issue were identified by Mason J in Wyong Shire Council v Shirt[3] as: -
[3] (1980) 146 CLR 40 at 47
(A) The magnitude of the risk to be addressed;
(B) The degree of probability of its occurrence i.e. the crystallisation of the risk;
(C) The expense, difficulty and inconvenience to the defendant in taking alleviating action; and
(D) Any other conflicting responsibilities which the defendant may have.
(A) Magnitude of Risk
What was the magnitude, seriousness or degree of risk presented by the rock which caused the injury? It is apparent from the photographs Exhibits 6 and 7 that the subject rock is visible to the naked eye during the day or at least up until when the natural light has receded to the point reached in Exhibit 7. I say this notwithstanding that the rock is a dark colour of similar but darker colour to the road at the time when Exhibit 6 was taken. To exemplify my view that the subject rock was visible during the daytime I refer to Exhibit 27, another photograph taken by the defendant Mrs Day which shows rocks of a similar colour clearly visible during daylight.
As evening falls I am satisfied that the visibility of the subject rock diminishes as is evidenced by photograph Exhibit 7. In that photograph the rock in question is barely visible at all. I am satisfied that the colour of the rock would make it very difficult to see in the dark. That may change with the different cycles of the moon and depending on cloud cover but for the present issue of the magnitude of the risk it is sufficient for me to be satisfied on the balance of probabilities that the rock could be difficult to see on evenings where there was no sufficient illumination from the moon to show it up.
I mention in passing that Mr Preston the third party said in evidence, relying on his experience of photography, that Exhibit 7 was taken with a flash evidenced by the reflection of the light on the posts inside of the Maverick vehicle. He said it could even have been taken at night and he was not aware of whether it had been digitally enhanced. There is no evidence of either of those speculative matters and I proceed on the basis that the natural light shown through the trees at the top of the photograph shows that it was taken during the same photographic session as was Exhibit 6 but later in the day when the natural light was poorer.
Apart from the obvious evidence of the plaintiff’s injury the only direct evidence of the magnitude of the risk came from the third party Mr Preston. He was the defendant’s Workplace Health and Safety Officer and had work in the area of risk assessment before working for the defendant. Before dealing with his evidence I should say two things. Firstly by his qualifications, Mr Preston is a party to the action so lacks the independence which his qualifications and experience may, on another occasion and in another forum, give him. I treat his evidence on this issue as from a party to the action with an interest in the outcome but one who nevertheless brings some experience to the situation. The second thing I should say is that, in my view, this is not a case which called for evidence of the degree of risk which is sometimes called in cases where the magnitude of the risk cannot be determined on the basis of common knowledge[4]. I think this is rather a situation where commonsense and ones life experience is sufficient to determine on the evidence the magnitude of the risk under consideration. Mr Preston’s view was that the rocks of the type which caused the plaintiff’s injuries were not a significant hazard. Even when asked to assess the risk of the subject rock against the knowledge of the plaintiff’s accident, his response was that it was still a the bush camping ground and any painting of the rock with reflective paint would require a light to reflect and that light, in his view should be a torch every camper should use.
[4]Maloney v CMR for Railways (1978) 52 ALJR 292
In my view, having regard to the colour of the rock, the sharpness of some of its edges, the absence of any lighting at night to identify it and the general layout of the camping ground I would assess the magnitude of the risk of the subject rock causing an injury of the type which it did as moderate.
(B) Degree of probability of occurrence of risk
The matters relevant to this question seem to me to be these: -
(a) The incidence of any previous accidents involving the rock;
(b) The visibility of the rock at night;
(c) Any lighting in the area of the rock;
(d) Pedestrian/camper traffic at night in the area of the rock;
(e) The probability of campers in the area being aware of the rock;
(f) The probability of campers using a torch light when moving around at night in the vicinity of the rock;
(g) Absence of painting/reflectors on rock;
(h) The effect of the refining the sharp edges of the rock to smooth edges.
(a) Incidence of previous accidents
The defendant Mr Ruster gave evidence that the subject rock was placed in the position it was at the time of the accident in or about 1992, 1993 or maybe a bit later. He said to his knowledge there had never been any previous incident of a person tripping over such a rock, or any complaint from any person as to the potential danger of the rocks. The defendant Mrs Day also said to her knowledge there had never been a previous incident reported of someone tripping or falling on the rocks including the subject rock. She was the manager of the caravan park at the relevant time and had been for 18 years. She explained that the procedure in place at the time for reporting an incident such as the plaintiff’s fall was that it would be reported to her office and a report would then be prepared by whoever in her office received the oral report. In this case Mrs Hall had reported the incident and Mrs Day then made an incident report (Exhibit 28). On the issue of previous incidents involving the subject rock or any rocks of its type, I am satisfied that the plaintiff’s fall was the first event the defendant was made aware of, that, to the knowledge of the defendant, there had been no previous reports of incidents involving the subject rocks and no one had ever complained to the defendant as to the potential danger of the rocks.
(b) Visibility of rock at night
I have already dealt with the plain visibility of the subject rocks during the day. It seems to me that at night the rock would have been very difficult to see with the naked eye unassisted by lighting. Of course, that would vary depending on the phase of the moon cycle and any cloud cover.
(c) Any lighting in the area of the rock
The defendant Mrs Day gave evidence of power poles around the campsite. Exhibit 24 is a rough plan of the caravan park she prepared and gave to guests when they booked in to assist them in finding their campsite. That diagram has a series of black dots which denote the locations of a series of six foot high power poles each containing four power points for power access to caravans or tents. Mrs Day marked with a small cross near campsite 4.3 the approximate position of the plaintiff’s tent. Site 4.3 was the campsite of the Hall’s caravan and annexe.
Exhibit 25 is a photograph taken facing site 4.3 and the concrete slab to the immediate right of the power pole is site 4.3. The position of the photographer taking that photograph is marked with a larger cross on Exhibit 24.
Apart from the four plugs on the power pole it also had a light so that there was some lighting around the campsite at night time. Mrs Day under cross-examination from Mr Williams said that the light from the pole would shine down somewhat on the plaintiff’s tent but that it was not supposed to light up the whole camp area. She agreed that the light shone down to give light around the plaintiff’s actual tent area, that closer to the pole it gave a reasonable light but conceded that it certainly wasn’t a big bright light. She explained that there was a light sensor on the pole so that as soon as it became dark the light came on.
That was the only other lighting in the caravan park apart from lighting around the amenities block which the plaintiff visited and which was some distance from the plaintiff’s tent. Although the precise distance was not in evidence Exhibit 15, being the plaintiff’s sketch of the route she took to and from the amenities block on the night in question, shows that, between the plaintiff’s tent and the amenities block, there is another campsite and an unsealed roadway. Exhibit 8 is a photograph taken by the plaintiff of the amenities block a year after the accident but there was no suggestion by the defendant that it had changed in the intervening period. That photograph depicts the illuminated amenities block and the road I previously referred to with a grassy camping area in the foreground. I am satisfied that the illumination from the amenities block did not spread to the plaintiff’s campsite and that the only lighting around that site was the subdued lighting from the power pole. When asked by her Counsel Mr Brennan if there was any particular reason why there were no street lights within the camp area Mrs Day said that the caravan park was set up as a natural camping area rather than like in city caravan parks where there was street lighting.
Mr Preston described the power poles as being five foot high with a fluorescent light underneath a cap on the top of the pole. He said it would probably throw light out in a twenty foot diameter of the pole but agreed that if there was an annexe attached to a caravan nearby, that annexe would obviously interrupt the light. Mrs Day’s diagram Exhibit 24 showing campsites and the position of the plaintiff’s tent and the power pole, coupled with the evidence of the existence of an annexe on the Hall’s caravan, leads me to the view that the light offered to the plaintiff’s camping area by the pole light was minimal.
(d) Expected pedestrian (camper) traffic in area of the rock
Mrs Day gave evidence that the plaintiff’s accident occurred on the May Labour Day long weekend when she estimated that the occupancy level of the park would have been around eighty percent. The accident occurred in the early hours of Monday, 1 May 2000. No evidence was given as to the maximum number of people the caravan park could accommodate. According to Mrs Day the entire enterprise which included a resort section, a hotel, an equestrian centre and the subject caravan park covered fifty acres with the caravan park cover 15 acres. The diagram Exhibit 24 prepared by Mrs Day for camping customers shows approximately seventy camping sites plus three camping huts. There is also a mini golf area, games room and swimming pool so the caravan park complex is a sizeable one. I infer there may have been between 117 and 233 people in the entire camping ground. I calculate that by assuming between two and four campers per site (there were five in 4.3 – the plaintiff, Mr Ferguson, Mr and Mrs Hall and Sonja Hall) a total of between 146 and 292 (4 x 73; 2 x 73) 80% of which gives the range of 117 to 233.
Focusing now on the probable pedestrian traffic at night one could reasonably anticipate in the vicinity of the subject rock, it seems to me from Exhibit 24 that, logically, the persons who would be walking near that rock other than along the adjacent road would be persons in campsites 4.1, 4.2, 4.4 and the plaintiff’s and the Hall’s site, 4.3. Having said that, given that there are roads near each of those sites 4.1 to 4.4 allowing access for the campers in each site whilst preserving the privacy of others in the No 4 campsite, it seems unlikely to me that there would be any traffic to speak of from camping sites 4.1, 4.2 and 4.4 near the area of the rock. Further, the amenities block which contains the toilet facilities is in such a position that the campers in sites 4.1, 4.2 and 4.4 would walk away from the rock to access the amenities block.
For those camp sites across the road from the plaintiff’s campsite which road being immediately adjacent to the rock, their logical access route to the amenities block would be along that road turning left into the road running perpendicular to the road running parallel to the amenities block, along that latter road and into the amenities block. I would not think they would normally walk near the rock. Of course, that assumes normality which life has a habit of distorting at times. As an occupier of such premises one would be aware of two categories of campers on whom the above logic may well be lost. I refer to children who like nothing more than running free in such spacious surroundings and to those who may have drunk alcohol, not sufficient to be inebriated, but enough to result in a momentary lapse of concentration which can result in mishap.
I consider that the pedestrian traffic around the rock would be those in campsite 4.3 where the plaintiff and the Halls were located on the evening in question, as well as members of the classes just identified.
(e) The probability of campers in the area being aware of the rock
I have already referred to Exhibit 27 which is a photograph of a section of the caravan park showing dark rocks similar to the rocks near the plaintiff’s campsite 4.3. They are clearly visible in daylight. The question is what was the probability of a camper using the plaintiff’s campsite 4.3 becoming aware of the subject rock.
The plaintiff gave evidence that she and her friend Neil Ferguson arrived at the defendant’s caravan park on the morning of Sunday, 30 April 2000. It was their first time at that caravan park. Exhibit 17, the plaintiff’s guest registration form, shows that she checked in at around 9.30 am. She then drove to the campsite of her friends Mr and Mrs Hall, site 4.3 where she remained for about half an hour before driving up the beach in Mr Ferguson’s vehicle, a Nissan Pathfinder. She said they would not have unloaded the vehicle before going up the beach.
During the time they were at the campsite prior to going to the beach, the plaintiff said her vehicle was parked somewhere in front of the Hall’s caravan on a road which was a little drive through area. She sketched on her diagram Exhibit 15 the approximate position of her Pathfinder in relation to the Hall’s Maverick and by reference to that Exhibit and Exhibit 24 being the defendant’s diagram of the camping ground, I infer that the car was parked on the roadway between campsites four and five shown on Exhibit 24 some short distance from the subject rock and the two white posts on either side of it. That was the first opportunity the plaintiff had to see the offending rock but she said that she did not see it.
She said she returned from the beach to the campsite about an hour before dark and set up her tent beside the annexe to the Hall’s caravan. The back of the tent was tied to a large tree stump which can be seen in Exhibit 25. Under cross-examination by Mr Brennan, Counsel for the defendant, she said that she could not recall seeing the power pole. She then assisted Mr Ferguson in putting up their three man tent by hammering in the pegs.
The plaintiff had to the opportunity sight the offending rock prior to the erection of the tent during the unloading of the vehicle containing the tent and camping equipment. She told Mr Brennan that her vehicle would have been parked near where she and Mr Ferguson put the tent up and that she had to walk about five feet from the vehicle to where the tent was being erected. Again, she said she failed to see the rock.
She agreed, by reference to Exhibit 6, being the photograph of the rock which is visible between the two posts and showing the front corner of her tent, that the rock would have been about three feet from the front of the tent. That was the second opportunity for the plaintiff to see the rock. She said she did not see it.
After erecting the tent and before going out for dinner with the Halls, the plaintiff stood for fifteen minutes watching the Hall’s daughter Sonja take what the plaintiff thought were about five photographs of the Lorikeets and Galahs gathering in the campsite. Two of those five photographs are Exhibits 6 and 7 to which I have earlier referred to. During that fifteen minute period another opportunity presented itself for the plaintiff to see the rock but again she said that she did not see it.
(f) Expected use by campers of a torch or other light to move around camping area at night
The next question is whether a person in the position of the plaintiff taking reasonable care for her own safety would have embarked on the journey to the toilet, in the rain, without using a torch or other light. She agreed with Mr Brennan that she was an experienced camper, but she did not do very much camping at the time of the trial but used to go once maybe every three months. She said she had been camping at Double Island Point and Inskip Point on Fraser Island.
At transcript page 75 the following exchange occurred between the plaintiff and Mr Brennan: -
“Question: Ok. And on this particular occasion when you went camping you would have taken a torch, wouldn’t you?
Answer: I don’t recall that I had a torch at the time.
Question: Well you will know that when you go camping it is a wise decision to take a torch, isn’t it?
Answer: Yes. It is.
Question: But you can’t recall whether you had a torch or not on this occasion?
Answer: Well I didn’t pack the car up so I don’t remember having one there. But Maureen and Jim did have one. But I don’t remember having one.
Question: I won’t be a moment. And when you returned from the toilet the night of the incident, do you recall where you were looking as you were walking back to your tent?
Answer: On the ground in front of me.
Question: And you would have been looking on the ground in front of you in order to identify any dangers such as tent ropes. That’s correct isn’t it?
Answer: Well the tent ropes – there was no other caravans on the other side so I didn’t have to go past any there. And I knew there was a big stump behind the tent which one of the back guide ropes was attached to. So therefore, it wasn’t on the ground. The only guide ropes that were there were the two little ones on the side of the tent.
Question: So you were looking at the ground in front of you in order to see where there might be some danger?
Answer: Where I was going. Yes.
Question: And do you recall seeing the posts on your way back?
Answer: Yes I remember the posts.
Question: And you…?
Answer: The posts definitely stood out.
Question: Now do you remember the posts standing out because you’ve looked at a number of photographs with the posts in it since then or do you have a vivid recollection of seeing the posts when you returned from the toilet?
Answer: I have a vivid remembering – oh yeah – I remember seeing it even before the accident, that the posts were there.
Question: But when you were returning from the toilets?
Answer: Yes I could see them. Yes. All three.
Question: And you were looking in front of you?
Answer: On the ground yeah.
Question: And you were looking for any dangers in front of you?
Answer: Yes and I was watching for the tent because I knew the tent was there.
Question: Well, by the time you’d get to the – got to the front of the tent, you knew the tent was there, didn’t you?
Answer: I didn’t get to the front of the tent. I fell on the ground in front of the tent.”
Later at page 77 this exchange occurred: -
“Question: And you were looking down where the rock was but you simply did not see it?
Answer: I didn’t see it, no.
Question: And you did not have torch with you?
Answer: No I didn’t have a torch.
Question: But you can see that if you had a torch and you shone it in front of you, you would have seen the rock, don’t you?
Answer: I may have. Yes I may have.
Question: Well, let’s just go back over the mechanics of what you’ve just explained to me. You were looking in front of me. Is that correct?
Answer: Yes.
Question: And you were looking for any sort of danger in front of you. Is that correct?
Answer: Yes.
Question: Now, you say you didn’t – you were looking where the rock was but you could not see it?
Answer: I don’t think I would have been looking where the rock was. I think I would have been looking closer toward the tent and I would have been sticking closer to the tent.
Question: So you weren’t looking where you were walking, you were looking to the sides. Is that correct?
Answer: Well I just assumed I was walking alongside the tent, but I was walking a bit further out than what I had done on the previous trip to the toilet.
Question: So you couldn’t see the side of the tent?
Answer: I could see the side of the tent because that’s grey, it’s silver. The reflective – but I was further over than what I was on the way in.
Question: And if you had a torch, you wouldn’t have seen the rock because you wouldn’t have had it shone on the…?
Answer: Shining on the tent.
Question: On the tent?
Answer: Yes.
Question: To the side of where you were walking?
Answer: Yeah, because I knew they had those couple of guide-ropes there. That’s…
Question: I won’t be a moment, your Honour. I’m almost finished. You can’t recall any light being shone from the power pole?
Answer: No.
Question: Well I put it to you that there was a power pole next to where the – Mr and Mrs Hall annexe was. What do you say to that?
Answer: Well there possibly was. I – I won’t say that there wouldn’t be one there.
Question: And I also put it to you that there is a light on top of that power pole. What do you have to say to that?
Answer: Well that’s possible. That’s probably why I thought it was enough light to walk over to the toilet and back; but I don’t remember seeing it.”
Under cross-examination by Mr Farrell for the third party, the plaintiff admitted that she usually took a torch when she went camping but she did not pack it up on this occasion because Mr Ferguson had packed for the trip. She said that she had a list, she usually followed that list and there was a torch on that list. On this occasion, the list was not followed because she did not pack the vehicle. The following exchange occurs between Mr Farrell and the plaintiff at page 82 of the transcript: -
“Question: Well see the trouble is this. You were very happy to embrace the notion of what you usually do when it comes to your drinks. But suddenly when I ask you about whether you took a torch on a camping trip, being an experienced camper you suddenly say “Well I don’t know, I didn’t – I don’t specifically recall that”?
Answer: We had a light. We had a gas light but not a torch.
Question: It was your usual habit when you went on camping trips to take a torch?
Answer: No gas lights we took.
Question: Your usual habit was not to take a torch on a camping trip?
Answer: Well not with Neil it wasn’t.”
I find this evidence as to the reliance upon a gas light rather than a torch as being more than a little opportunistic on the part of the plaintiff to address the issue of why she left the tent to visit the toilet that evening without a touch or other light. I find equally opportunistic her above answer that the light on top of the power pole was possibly present which justified her making the trip to the toilet without a touch or other light, when previously her evidence was that she had not seen the power pole.
The third party Mr Preston gave evidence that he frequently attended camping sites. He said that he sometimes camped as a family with his daughter, her husband, his son and his wife and kids. Under cross-examination from Mr Williams the following exchange took place at transcript page 51: -
“Question: At night time, having a look at (the rocks) colour, would you agree with limited lighting that that would become a hazard for people walking there?
Answer: If they do not carry a torch yes.
Question: Even if a person was carrying a torch and they were using the torch to, say, outline the ropes of a tent, it doesn’t mean that the torch would show up on that particular hazard, would it. The torch would have to be in front of the person or depending upon which way the person was walking?
Answer: I know I would carry a torch in front of me. I’d shine it on the road in front of me where I am putting my feet. I can only speak for myself.
Question: But if you can see a person is doing that, you do that in the circumstances you have been listening to the evidence in the back of the court for two days and it does happen, does it not, that people look for tripping hazards that they are aware of, that is ropes from tents, and if they had a torch they would be looking at it that way. What do you say about that?
Answer: If they are not walking towards it what’s the point of shining the torch sideways?”
I agree with the last answer. To shine a torch other than where one was to place one’s foot when moving would seem to me to diminish or destroy the benefit of having the torch and would be careless.
(g) Absence of painting/reflectors on Rock
Would the placing of reflectors or the painting of the rock in a reflective colour have impacted on the probability of occurrence of the type of accident which the plaintiff had? The plaintiff said that she had seen the two posts on either side of the rock as I have outlined. Mrs Day gave evidence that some of the posts in the camping ground were painted white and some had reflectors. From Exhibit 6, being the photograph of the birds showing the two posts on either side of the rock, it is clear to me that both posts had a reflector, that the right hand post looking from the front of the plaintiff’s tent was painted white but that the other, if ever painted, was very faded. When asked by Mr Williams in cross-examination whether she had ever considered painting the rock or putting reflectors on them similar to the posts, Mrs Day said they liked the natural effect and that people liked them in the park with their unpainted natural effect. Mr Preston made the point that if reflective paint or any kind of paint was used on the rocks it would be useless unless there is some light to be reflected. He said that that would require area lighting and, as there were no Australian standards covering camping ground lighting, that made it even more incumbent on any user of the campsite at night to use a hand held torch. Whilst that is an expression of opinion, I agree with that. Commonsense dictates that, in the absence of other adequate lighting, the use of a torch or other suitable light at night would be an obvious precaution to avoid hazards.
(h) Refining the sharp edges of the rock
Given the circumstances of the plaintiff’s accident whereby she caught her foot on a ledge underneath the rock it is not clear to me whether any refinement of the edges of the rocks would impact on the probability of such an accident occurring as opposed to the extent of any injury.
(C) Expense, Difficulty or Inconvenience of taking Alleviating Action
Mrs Day gave evidence that the rocks were originally bought in and placed around the park using trucks and tractors. Subsequent to the accident they were removed. Consistent with the decision in Ryan & Ors v Etsa & Ors[5] I do not treat that risk abatement step as, in any way, an admission by the defendant that it was guilty of an earlier breach of duty. I mention the removal of the rocks only to demonstrate, in conjunction with the fact that they were originally bought into the camp grounds, that, if it was deemed necessary, it would not have been a major difficulty to remove the rocks. As to the expense there is no evidence of the cost but if the defendants could afford to have the trucks and tractors utilised to place the rocks I am prepared to find that they were equally positioned financially to remove them.
[5] (1987) 47 SASR 220 at 224-225
(D) Conflicting Responsibilities
In Ibraham v Myer Queensland Stores Ltd[6] the plaintiff fell over a small step at the foot of a ramp in a shopping centre. In the result the defendant was not found to be negligent but, in considering that issue, the court took into account that, whereas it would be easy to reduce or eliminate the subject step at small cost, nevertheless there was some disadvantages in that reduction or elimination would have resulted in a loss of a warning to blind persons and some impairment of efficiency in the storm water drainage system of the defendant’s premises after heavy rain.
[6] Appeal 6505/96, 1.8.97, Unreported
In the present case the plaintiff’s evidence through Mrs Day was that the rocks were put there to delineate the road and to make sure people did not wander off the road with their vehicles and drive over the grass, it being the defendant’s objects to keep the grass in as good a condition as possible for campers to put their tents and caravans. There was also the aesthetic aspect of the defendant wanting to keep the appearance of a natural environment which is not an irrelevant consideration[7]. They were not so much conflicting responsibilities as reasons for the placing of the rocks. There was no evidence, for instance, that they were there to prevent cars driving into camping grounds, thus endangering campers.
[7]Phillis v Daley (1988) 15 NSWLR 65 per Samuels JA at 69
Conclusion Re: Breach of Duty
Turning now to the question I must determine and that is what would a reasonable person do in the circumstances of this matter by way of response to the clearly foreseeable risk of the dark offending rock in its locations in the camping ground. I am conscious that the mere existence of a hazard giving rise to some risk of injury does not, of itself, render the occupier negligent even if it could be minimised or removed but was not[8]. Further, failure to address readily visible hazards which resulted in a relatively small risk of injury may not amount to negligence especially if the alleged hazard was a common feature in a particular geographical area[9] or type of location[10]. I have found the decision in this matter far from an easy one. However, in the result, I am satisfied on the balance of probabilities that there was a breach of duty on the part of the defendant in failing to adequately identify the subject rock at night time. Although I have identified quite light anticipated pedestrian/camper traffic around the subject rock at night given the configuration of the camping ground, nevertheless, as I have alluded to it is notorious that some people, especially young children, do not always act in accordance with commonsense. Further, I think the risk of an absent minded, mildly inebriated or simply careless camper including children seeking to run or walk through the subject camping site 4.3 rather than taking the very sensible route of a road, is not a risk that could be said to be far fetched or fanciful[11]. I consider that the defendant should have taken steps to ensure that the subject rock was more visible at night, either by the introduction of lighting generally in the area or by way of specific lighting on the rock itself whether or not in conjunction with the painting of the rock with reflective paint. I do not consider that such a remedy would necessarily mean that the aesthetics and natural environment of the caravan park would have to be impacted. I take judicial knowledge of the large variety of lighting including subtle landscaping lighting which is available on the market today. Such lighting can be seen in residential gardens, wedding reception and other outdoor social gathering facilities and, in this caravan park, could have achieved the dual objectives of providing more visibility to the rock yet preserving the amenity of the caravan park. I accordingly find that the defendant breached its duty of care to the plaintiff resulting in the accident and her injuries.
[8]Phillis v Daley (1988) 15 NSWLR 65
[9]Ibraham v Myer Queensland Stores Ltd above
[10]Jaenke v Hinton (1995) Aust Tort Rep. 81-368: A garden hose in a residential yard.
[11]Wyong Shire Council v Shirt (1980) HCA 12 para 13 per Mason J
Contributory Negligence
Contributory negligence is the failure of a plaintiff to take reasonable care for the protection of his or her person or property. In my opinion the plaintiff substantially contributed to her injuries by her failure to use a torch or other light on the night in question. She was an experienced camper who, on her own evidence, said that she had a camping list which included a torch and that she usually took a torch on her camping trips. The only reason there was no torch packed on this occasion was that Mr Ferguson had packed for the trip. She attempted to fill the evidentiary gap of the absence of the torch by explaining that she had a gas light in the camp but the presence of a gas light does not address the question of why she left her tent at 2.00 am in the morning in the dark and the rain and walked a substantial distance to and from the toilet in the rain without using a torch, that gas light or a similar light source. In my view, had she been using a torch or other light, in the manner of a reasonably careful person namely by shining it on the ground ahead of where she was going to walk, she may well have seen the rock and avoided the accident.
Further, it seems to me that any experienced camper as the plaintiff was, would make it one of the first orders of the day upon arrival at a campsite to identify any hazards or potential hazards which may crystallise into a danger after dark. One does not need evidence on that issue. It is a matter of commonsense and common knowledge. As I have earlier identified on at least four occasions the plaintiff had the opportunity to look to her own interests by identifying hazards on the campsite including the rock. Firstly, when she arrived at the campsite for the half hour before they drove to the beach on the morning of Sunday 30 April. Secondly, upon returning to the campsite when she was unloading the tent and other gear from Mr Ferguson’s Pathfinder vehicle and carrying it five feet to the tent site. Thirdly, during the erection of the tent which resulted in the front entry flaps of the tent being three feet from the offending rock. And finally, when she was standing around for fifteen minutes looking at the birds whilst Sonja Hall took photographs, one of which Exhibit 6 shows the rock plainly in sight.
The plaintiff relied upon Murphy v Council of the Shire of Burnett[12] which also involved a plaintiff being injured in a caravan park and camping ground when visiting the toilet on a night with little moonlight. As with the plaintiff here, she did not use a torch and suffered injury when her left foot went down into a depression in the ground, sustaining a fracture of the fifth metatarsal base of the left foot. On the issue of whether or not there was any contributory negligence on the part of the plaintiff, his Honour held that the nature of the hole into which her foot went was such that a torch beam would not have revealed the hole. It contained vegetation growing within it, making it increasingly hard to discern. That is quite a different situation to the present where the rock could easily have been detected by the use of a torch or other light, such as the plaintiff’s gaslight.
[12] [2006] QDC 20, a decision of Skoien SJDC
On balance, but only after much deliberation, do I accept that the plaintiff did not see the rock at any stage prior to the accident but find that a reasonably careful camper would have done so in all of the circumstances. I find that she contributed to her accident and consequent injuries by a factor of 50%, and that the liability of the defendant should be reduced accordingly. This I consider is a just and equitable apportion of liability having regard to the plaintiff’s share of responsibility for her injury[13].
[13] Section 10 Law Reform Act 1995
Liability - Contract
The plaintiff also claims a breach of contract alleging that there was a condition of the agreement between the plaintiff and the defendant whereby the plaintiff camped in the defendant’s caravan park to the effect that the plaintiff would be safe during the term of her occupation and that as a result of a breach of that condition, she was injured.
The appropriate duty owed by the occupier of the premises which the defendant was, to a person who has paid to enter those premises was reaffirmed in Calin v Greater Union Organisation Pty Ltd[14] in which the High Court confirmed that the principle established by Watson v George[15] was still a correct statement of the law. That statement was:-
“If an occupier of premises agrees for reward to allow a person to enter the premises for some purpose, the occupier implicitly warrants that the premises are as safe for the purpose as reasonable skill and care can make them.”
[14] [1991] HCA 23; (1991) 173 CLR 33
[15] [1953] HCA 41; (1953) 89 CLR 409 per Williams ACJ at 415
For the same reasons I have found a breach of duty of care by the defendant in negligence, I find a breach of the defendant’s contractual duty to the plaintiff. I further find that the plaintiff’s resulting damages be reduced by 50%, as representing what I consider is just and equitable having regard to the plaintiff’s share of responsibility for her injury[16].
[16] Section 10 Law Reform Act 1995
Defendant’s claim against third party
The defendant served a third party notice on the third party seeking indemnity or contribution in the event that it, the defendant, was found to be liable to the plaintiff. The third party was a workplace health and safety officer appointed by the defendant for reward in or about 1996 until in or around 2002 during which time he was paid fees of approximately $10,000.00. The defendant has conceded the following: -
(a) That Mr Preston is and was at all material times a safety officer pursuant to the Workplace Health and Safety Act 1995 (WHSA). That concession carries the implication that it was an employer within that Act;
(b) As part of his obligations under the agreement with the defendant, Mr Preston conducted some 45 safety audits of the camping ground and the resort which included various other advice including advice as to customer safety and customer incidents;
(c) But for the circumstances surrounding the incident of the plaintiff’s accident, Mr Preston discharged his obligations under the contract.
The only matters in dispute between the defendant and the third party are these:-
(a) That it was a term implied into the contract between them that the application of s 184(2) of the WHSA be excluded - amended Statement of Claim paragraph 4D third party Defence paragraph 2;
(b) The true nature of the duty owed by the third party to the defendant – Statement of Claim paragraph 5(b), third party Defence paragraph 3;
(c) That there was any breach of duty of the part of the third party – third party Statement of Claim paragraph 8, third party Defence paragraph 4;
(d) That the plaintiff’s injuries resulted from the third party’s breach of contract – third party Statement of Claim 8(a), third party Defence paragraph 4;
(e) That any injuries suffered by the plaintiff were as a result of misleading and deceptive conduct by the third party in breach of s 52 Trade Practices Act 1974 (TPA) – third party Statement of Claim paragraph 8(b), third party Defence paragraph 4;
(f) That, if liable to the plaintiff, the defendant is liable to be indemnified by, or is entitled to contribution from, the third party. Third party Statement of Claim paragraph 9 and 10, third party Defence paragraph 4.
(g) That in the event the defendant is held liable to the plaintiff, it is entitled to damages equal to that liability pursuant to s 52 of the TPA. Third party Statement of Claim paragraph 10(a), third party Defence paragraph 4.
WHSA Statutory Immunity
Section 184(2) of the WHSA provides:-
“Protection from liability – others
(1) …..
(2) A workplace health and safety officer is not civilly liable because of the performance of, or the failure to perform, a health and safety function under Part 8.”
Part 8 of the WHSA deals with the appointment of Workplace Health and Safety Officers (Officer) and s 93(1) provides that an employer must appoint a qualified person as Workplace Health and Safety Officer for a workplace prescribed under regulation if 30 or more workers are normally employed at the workplace. A qualified person is one who holds a Certificate of Authority described under a regulation for appointment as a Workplace Health and Safety Officer.
Section 96 sets out the functions of such an Officer and provides:-
“96 Functions of Workplace Health and Safety Officers
A Workplace Health and Safety Officer has the following functions:
(a)To tell the employer or principal contractor about the overall state of health and safety at the workplace;
(b)To conduct inspections at the workplace to identify any hazards and unsafe or unsatisfactory workplace health and safety conditions and practices;
(c)To report in writing to the employer or principal contractor any hazard or unsafe or unsatisfactory workplace health and safety practice identified during the inspections;
(d)To establish appropriate educational programs in workplace health and safety;
(e)To investigate, or assist in the investigation of, all workplace incidents at the workplace;
(f)To help inspectors in the performance of the inspectors’ duties;
(g)If any workplace incident or immediate risk to workplace health and safety at the workplace happens – to report the incident or risk to the employer or principal contractor;
(h)Another function prescribed under a regulation.”
Section 98 then provides:-
“98 Appointment of Workplace Health and Safety Officer not to diminish employer’s obligations
An employer’s or principal contractor’s workplace health and safety obligations are not diminished by:
(a)The appointment of a Workplace Health and Safety Officer; or
(b)Any act or omission of a person acting in the capacity of Workplace Health and Safety Officer.”
For the first month after the accident she was immobilised and required the assistance of family and friends to carry out basic functions such as dressing, bathing and toiletry. To her credit she returned to work within one month of the injury and has not lost any work as a result of it ever since. I have considered the following cases referred to me by Mr Williams for the plaintiff – Kenneth Roy Cooper v Gladstone City Council Judgment No D143/1999 Wall DCJ, Henley v State of Queensland and Queensland Rail Judgment No 02/256 McGill DCJ, Manwaring v Smorgon Steel Pty Ltd Judgment No 413/2000 McGill DCJ, Brooks v Ticor Chemical Company Judgment No 3/180 Dutney J, Delacour v Australian Meat Holdings Pty Ltd [2005] QDC 109. In all the circumstances I consider an appropriate figure for general damages, pain, suffering and loss of amenities and cosmetic scar is $25,000 plus interest on that sum at 2% from 1 May 2000.
Special Damages
Before dealing with the dollars, it is appropriate to raise the issue of the over-claiming by the plaintiff in her further supplementary updated Statement of Loss and Damages for the HIC refund. Under cross-examination she agreed that payments from HIC in relation to Doctors Calais and MacBride were not related to the accident as she claimed in the Statement. Whilst I found the plaintiff to be a witness who was endeavouring to tell the truth it was of concern to me that she signed her Statement containing illegitimate claims. I do not say that she did that with the intention to mislead as there was no benefit in it for her but rather for HIC. It does point up however the importance of legal advisors ensuring that clients signing such important documents as Statements of Loss and Damage read and fully comprehend the content of those documents by reference to contemporaneous documentation.
The defendant submits that the figure of $1,035 claimed for the HIC refund should be reduced by $550 to leave $485 but the plaintiff has only claimed in her final submissions the sum of $382.50 and I allow that sum. In total for special damages I allow: -
(a) HIC refund $382.50
(b) Pharmaceutical expenses including interest $300.00
(c) Travel expenses $100.00
(d) Hire of crutches $12.00
(e) Ferry call out fee $68.00
(f) X-rays $87.00
(g) Pre-paid dancing weekend $80.00
(h) Medical expenses $155.00
(i) Vitamin E oil $100.00
(j) Paid assistance provided by Lynne Rose
(3 hours per week at $10 per hour for 6 months) $720.00
Total $2004.50
Past Economic Loss
The claim here is for overtime of $175 which the plaintiff missed out on together with $60 being the belly dancing teaching fee she missed out on. A total of $235. With interest I allow $300 for this item.
Future Economic Loss
The plaintiff had been working as a Customer Service Officer at the Caboolture Centrelink office since 1990, a period of approximately ten years. Upon returning to that position after the accident, although her work was restricted for a time, she remained at Centrelink for a further period of five years or thereabouts until 2005 when she accepted a voluntary redundancy unrelated to her injury. Her job with Centrelink involved interviewing customers who had appointments and reception duties in the main reception.
She left Centrelink and took a position as a night carer at an elders’ home Fairhaven Care Centre at Wamuran where she worked mainly at nights but occasionally during the day and occasionally doing cooking. She said that she had decided to leave that position and was now looking for office work because the work at Fairhaven involved a lot of standing which led to pain in her leg. She also expressed concern that any bumping of her leg on furniture may cause an abscess to form on the scar.
The following evidence relates to her redundancy and the work at Fairhaven[30]: -
[30] Transcript p 55
“Question: And – so my understanding is you left a more lucrative occupation with Centrelink to take up a job at Fairhaven for less money; is that correct?
Answer: I took a reduced working in preference to having a stress-related job, which actually got worse after I left.
Question: Ok. So the reason why you left your employment with Centrelink was stress-related; is that correct?
Answer: No. I was offered the package.
Question: Yes?
Answer: I thought about it. I took it. I paid some of my mortgage off and took a job which had less hours and more client satisfaction than what Centrelink was giving me.
Question: Ok?
Answer: Because you were just part of a number.
Question: And now you are thinking about leaving Fairhaven; is that correct?
Answer: Yes.
Question: And you were thinking about leaving Fairhaven for what reason?
Answer: Changes in finances.
Question: Yes?
Answer: And it is harder to do the work standing all the time but you have to try things before you find out whether it is going to be worth it.
Question: And you started working with Centrelink in 1990; is that correct?
Answer: 1990, yes.
Question: And you were a clerical worker there, is that correct?
Answer: Yes.
Question: And you would agree with me that – well I withdraw that. And what were your main tasks associated with being a clerical worker?
Answer: Same thing as what I was doing all along. Clerical worker is – you do exactly the same public contact.
Question: Right.
Answer: Then the systems that they were implementing and the changes they were making in 2005 weren’t – well I still maintain contact with people at work, and the stress levels within that department has actually got astronomical.
Question: And you would agree with me that you are much more experienced clerical worker?
Answer: Yes.
Question: Than you are a carer?
Answer: Care, Yes. But I still like looking after the oldies.
Question: So the reason why you left the – I’ll withdraw that – the reason why you left your employment at Centrelink was a dual reason of you didn’t like the way Centrelink was starting?
Answer: The direction yes.
Question: To operate?
Answer: Right.
Question: And?
Answer: It was…
Question: Because the financial package was attractive.
Answer: Yes. I have a payment which I get each month, so, yes – for my super.
Question: And now you are going to leave Fairhaven for the dual reasons?
Answer: Oh well.
Question: Of improving your finances and because you find the work difficult?
Answer: Yes.
Question: And you stated to be fair, that you find the work difficult because you have to stand for long periods of time and that aggravates – according to you?
Answer: Yes it can aggravate it.
Question: Your scar or…?
Answer: The leg. Aggravates the leg. It’s mainly the leg. It is not necessarily the scar.Question: Well, let’s just turn to the leg for a moment. What do you say you are experiencing with the leg that is reducing your ability to work at Fairhaven?
Answer: Well, occasionally you will wack your leg.
Question: Yes?
Answer: On the beds when you do – making beds, things like that. So occasionally you will hit your leg there, which – occasionally I have hit the scar and it does hurt. I don’t really want to get an abscess there and that’s a possibility because of where it is on my leg so I have to look after that to the best of my ability.
Question: And have you started looking for future employment?
Answer: No – yeah I have put an application in.”
It seems apparent to me from the evidence that the plaintiff voluntarily relinquished her secure employment with Centrelink of some 14 to 15 years’ duration for reasons quite unrelated to her injury. Importantly she worked for another period of up to five years from her return to work after the accident until she accepted the voluntary redundancy. There is no evidence from her as to any incapacity for work during that five year period, apart from when she initially returned to work. There is no evidence that clerical work for which she appears eminently suited and which work she carried out for some ten years prior to and some five years after the accident, is in any way inhibited by her injury.
The plaintiff’s chosen work to date has been mainly clerical work apart from her short stint at the nursing home, and which appears to be the work she is best qualified to pursue. Nevertheless her injury has denied her the option of doing other work such as aged care which may involve the risk of her scar being damaged by contact with beds, furniture and the like. Her decision to leave Centrelink was partly related to the stress of the position and that could again be a driver for her in the future to prefer non-clerical work. I consider the plaintiff is entitled to some payment for future economic loss to reflect that small potential future limitation. I assess that at $5000.
Claim for Past Gratuitous Care – Griffith v Kerkemeyer
Before dealing with this I address the defendant’s argument that Jones v Dunkel[31] applies to the plaintiff’s failure to call as witnesses all persons who provided gratuitous care to her so that I should draw the inference that, had they been called, their evidence would not have been helpful to the plaintiff. I do not agree with that. The plaintiff gave direct evidence of the care she has received and there is no necessity for her to call every single witness to corroborate her evidence. It was at all times open to the defendant to call those witnesses if it thought it would assist its case. There was no obligation on her to explain or contradict something in evidence, which is one of the essentials underpinning the rule in Jones v Dunkel.
[31] (1959) 101 CLR 298
I am satisfied as to the claim made by the plaintiff in relation to this head and allow the sum of $6429 calculated as follows: -
(a) 8 hours per day for two weeks
following the accident at $10 per hour $1120.00
(b) 6 hours per day for the next week $ 420.00
(c) 4 hours per day for the following week $ 280.00
(d) 6 months following the first month of the
accident i.e. 25 weeks x 8 hours x $10 $2000.00
(e) Gardening assistance 2 hours per month
at $10 for 6.5 years –
1.5.2000 – 21.8.2007 $1560.00
Total $5380.00
(f) Interest at 3% for 6.5 years $1049.00
Total with interest $6429.00
Future Gratuitous Care
I award a global figure of $2500 to take account of the plaintiff’s future gardening needs at the rate of two hours per month at $10 per hour. In that figure I have taken into account the exigencies of life which may arise.
Future Medical Expenses
I am satisfied that the plaintiff uses Panadol occasionally to ease the pain in her leg associated with scar and uses Vitamin E medication to rub into the scar. I accept the plaintiff’s submission that that costs of the order of $3.50 per week for a period of twenty-nine years assuming a life expectancy of eighty years. Using the $810 multiplier on the five percent table this totals $2,835. On the evidence I am not satisfied that the plaintiff will undergo any further surgery.
Accordingly the plaintiff’s damages are as follows: -
Head of Damage Sum awarded Pain, Suffering and Loss of Amenities of Life $25,000.00 Interest from 1 May 2000 at 2% $ 3750.00 Special Damages $ 2004.00 Past Economic Loss including interest $ 300.00 Future Economic Loss $ 5000.00 Past Gratuitous Care with interest $ 6429.00 Future Gratuitous Care $ 2500.00 Future Medical Expenses $ 2835.00 Subtotal $47,818.00 Less Contribution of 50% $23,909.00 Net total damages payable to plaintiff $23,909.00
I make the following orders:-
(a)that the defendant pay to the plaintiff by way of damages $23,909;
(b)that the defendant’s claim against the third party be dismissed.
On the issue of costs as between the plaintiff and the defendant and as between the defendant and the third party, subject to hearing argument and being persuaded to the contrary, I consider that the defendant should pay both the plaintiff’s and the third party’s costs to be assessed.
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