| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LYNN -v- APEX HOLIDAY CENTRE (INCORPORATED) [2003] WADC 169 CORAM : COMMISSIONER GILES HEARD : 25-27 NOVEMBER 2002 DELIVERED : 8 AUGUST 2003 FILE NO/S : CIV 896 of 2001 BETWEEN : DAWN ROSEANNE LYNN Plaintiff
AND
APEX HOLIDAY CENTRE (INCORPORATED)
Defendant
Catchwords: Negligence - Occupier's liability - Scope of duty owed by voluntary organisation providing low cost holiday accommodation - Assessment of damages
Legislation: Occupiers' Liability Act 1985
Result: Liability upheld
Damages awarded
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Representation:
Counsel:
Plaintiff : Mr B G Bradley
Defendant : Mr P E Jarman
Solicitors:
Plaintiff : Bradley & Bayly
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Gondoline Pty Ltd v Hansford [2002] WADC 214
Jones v Bartlett (2000) 205 CLR 166
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Stannus v Graham (1994) A Tort Rep 81-297
Uzabeaga v Town of Cottesloe [2002] WADC 71
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Case(s) also cited:
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Brodie v Singleton Shire Council (2001) 206 CLR 512
Bryant v Fawdon Pty Ltd (1993) A Tort Rep 81-204
Burwood Council v Byrnes [2002] NSWCA 343
Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42
Commissioner for Railways v Ruprecht (1979) 142 CLR 563
Hackshaw v Shaw (1984) 155 CLR 614
Lawson v Charles Hull Contraction Pty Ltd (1997) 20 SR (WA) 174
Lipman v Clendinnen (1932) 46 CLR 550
McHale v Watson (1996) 115 CLR 199
Nance v British Columbia Electric Railway Company Ltd [1951] AC 601
Pennington v Norris (1956) 96 CLR 10
Richmond Valley Council v Standing (2002) A Tort Rep 81-679
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Roman Catholic Archbishop of Perth v Hinchcliffe, unreported; FCt SCt of WA; Library No 980520; 14 September 1998
Rootes v Shelton (1967) 116 CLR 383
State Government Insurance Commission v Hitchcock, unreported; FCt SCt of WA Library No 970089; 11 March 1997
The Commonwealth of Australia v O'Callaghan [2001] WASCA 276
The Council of the Shire of Wyong v Shirt & Ors (1980) 146 CLR 40
Insurance Commissioner v Joyce (1948) 77 CLR 39
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1 COMMISSIONER GILES: The fiftieth annual Norrish family reunion was held at the Apex Holiday Centre at Point Peron, over Easter 2000.
2 The Norrish family is a large farming family from the wheatbelt in Western Australia, spanning four generations. The reunion usually attracts between 100 and 120 people, ranging from the very elderly, to the very young. 3 The reunion has been held on a number of occasions at the Apex Holiday Centre in Point Peron ("the camp"). The camp has beds for about 70 people but additional people can be accommodated in tents and caravans which can be located on the site. The entire site is usually booked for participants in the reunion, as it was on that occasion. 4 The plaintiff attended the reunion in Easter 2000, with her then boyfriend, Mr Michael Andrijasevich, her two adult daughters and her grandson. 5 The plaintiff and Mr Andrijasevich slept overnight in unit number 12 on the Saturday night. At about 2.00 am on Easter Sunday morning which was 23 April 2000, the plaintiff awoke needing to go to the toilet. There were no toilets in the unit, so she had to leave the unit and walk to the ablution block situated elsewhere in the camp. As she left the unit she fell down the steps suffering serious injuries. 6 She now sues the defendant claiming negligence at common law and pursuant to the Occupiers Liability Act1985 ("the Act"). 7 The defendant is an incorporated association. Its committee comprises representatives of Apex, a volunteer organisation, and the Civilian Widows Association. The defendant occupies and operates the camp. The camp is located on about five acres of bush, providing holiday accommodation and camping, close to the beach at Point Peron. It is leased by the defendant from a State Government department, at a peppercorn rental. 8 The committee members serve voluntarily on the committee. The defendant employs a caretaker husband and wife team who live at the camp. The camp is principally used by sporting, charitable, disabled, and children's groups and schools. It is fully booked out on most weekends and sometimes mid-week by school excursions. The defendant charges $7 a night for adults and less for children. Admission for pre-schoolers is free. I gather the philosophy behind the camp has been to provide extremely inexpensive holiday accommodation by the sea for all,
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regardless of their resources, but with particular emphasis on disadvantaged people. 9 The accommodation provided at the camp is very basic. There are a number of fibro buildings, each containing two or three accommodation units, called "huts" or "units" plus a building called "Windy Cottage", which is the only one with cooking and washing facilities. All of the other units simply contain bunk beds and a few basic items of furniture. There is an ablution block, a food hall and a playground situated within the grounds of the camp. While there was no evidence as to when the buildings were constructed, it was agreed that they are some decades old.
The plaintiff's history 10 The plaintiff was 45 years old at the time of the accident, and 47 years old at the time of the trial. 11 She was born and raised in Trayning, a wheatbelt town in Western Australia. Her mother is a Norrish by marriage. She left school at 16. She worked in the Trayning telephone exchange and in her parents' delicatessen for a short time before moving to Perth where she worked at David Jones doing office work for three to four months. She went on to work for Western Underwriters, and did some part-time waitressing. She travelled, and worked for an insurance company in Wellington, New Zealand for three months in 1975. She returned to Trayning and worked as a receptionist and in accounts in a machinery farm dealership. 12 The plaintiff married in August 1976 and had two daughters in March 1977 and May 1980. Between having her two daughters, and afterwards, she worked a total of three years with the farm machinery dealership. 13 In 1986 her marriage ended and she moved to Perth with her two daughters. She worked part-time for Wesfarmers Insurance and later for Royal Life Insurance. In 1990 she did a 12-month course at Balga Technical and Further Education College in accountancy. After qualifying she worked as a part-time bookkeeper for Brad Wright Cartage also taking on other bookkeeping work, which was referred to her by an accountant. She left Brad Wright Cartage in 1994-1995 and worked part-time at the Noranda Community Centre for 12 hours a week, also working part-time for an automotive mechanic business.
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14 Her desire at that time was to work in the real estate industry. In 1996 the plaintiff found work with Martin and Turner, real estate agents in Mt Lawley, as a receptionist/property manager's assistant. She worked full-time in that capacity for about 14 months collecting rents, typing property condition reports and receiving applications for rental properties. She then moved to Marlow & Saraceni, also real estate agents as a receptionist/clerk, first in Stirling and then in Nollamara. The plaintiff's work there included some property managing duties such as visiting and opening up properties.
15 She left Marlow & Saraceni in August 1999 and went on a holiday. 16 In September 1999 she commenced at Rich and Co, also a real estate agency. She started as a receptionist because she found property management tiring, stressful and "too full on". Her employer could not find anyone to be a property manager so eventually she took on the job, full-time, earning $28,000 gross per annum plus superannuation. She was in this employment on 23 April 2000 when she suffered the accident. 17 During the plaintiff's employment with Rich and Co, the owner of the agency had words with the plaintiff concerning her performance as property manager. She confirmed in cross-examination that she had wanted to get out of property management prior to the accident. It also emerged that she departed both from Marlow & Saraceni and Rich and Co on bad terms. There was no clear evidence before the court as to the reason for the plaintiff leaving Marlow & Saraceni. Rich and Co refused to take the plaintiff back on a part-time basis, after her accident. This developed into quite a heated dispute. She agreed that property management was not for her, and that she preferred receptionist, clerical and bookkeeping duties, to which she has returned since the accident. 18 The plaintiff said that before the accident in April 2000 she did everything for herself. This included doing the gardening, painting, weeding and looking after the pool at her house. The only thing that she did not do entirely herself was the lawn mowing and moving of heavy furniture for which she relied on others, such as her brother.
The plaintiff's evidence about the accident and aftermath 19 The plaintiff had attended two or three family reunions before the accident, all of them at the camp.
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20 For the 2000 reunion, she intended to stay on the Saturday night only. Michael Andrijasevich picked up her and her daughter Trudi at 2.00 pm. Mr Andrijasevich drove and they arrived at about 4.00 pm.
21 The plaintiff and Mr Andrijasevich had been allocated hut 12. She had stayed in hut 12 once before at a previous reunion. She said that at the Easter 2000 reunion, she noticed nothing different about the hut compared with her previous visit. She described it as having a wooden door which never closed, and a fly screen door, which did close. There were three old wooden steps leading up to the door. She had noticed that the steps were steep and had no landing, and that "you had to be wary walking up and down those steps". 22 The plaintiff's daughter Trudy had been allocated another hut. The plaintiff and Mr Andrijasevich went to hut 12 where they left their belongings. There were six bunks in unit 12, constituting of three double bed bunks two of which had items of clothing on them indicating that they had been occupied. They put their belongings on the remaining two bunk beds and took their eskies to the food hall where there were between 90 and 100 people gathered. 23 By the time the plaintiff and Mr Andrijasevich arrived at the party itself it was about 5.00 pm. Most people were sitting outside the food hall under the trees. It was a warm day. By that time the plaintiff's other daughter Marnie and her partner and child had arrived. The plaintiff helped for a while in the kitchen, handed around food to others, introduced Mr Andrijasevich to family members and dealt with what she described as "the usual dramas" with her two daughters and her grandson. There was a bush band, dancing, card playing and from all accounts a good deal of alcohol consumed. 24 For the earlier part of the evening the plaintiff cared for her 3-year-old grandchild, Jesse. I gained the impression that the plaintiff takes on the burden of looking after her grandchild more than perhaps she should. At about 9.30 pm Jesse went to bed at the plaintiff's insistence. After that time the plaintiff could relax. She danced, talked to friends and relatives and had in her words "a fabulous time". 25 In answer to interrogatories sworn by the plaintiff prior to the trial she said that she had consumed six glasses of wine that evening. At the trial she maintained that it was only five glasses together with some sips of champagne taken as a toast from a bottle passed around between eight people. She maintained that she was not continuously drinking but was
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also dancing, eating and walking around. She said she was not "really a drinker". 26 The plaintiff and Mr Andrijasevich went to bed just before midnight. The inside light in unit 12 was on as they approached the hut. There was a light some metres from unit 12 on a tall metal pole which threw its light away from unit 12 and towards a circular driveway and playground. The plaintiff said that it was difficult to see. There was no light immediately outside unit 12 to illuminate the steps or the approach to unit 12. The plaintiff said she "approached with caution". When one reaches the top of the stairs the flywire door opens outwards requiring the person to step backwards to accommodate the swing of the door. 27 The only light switch in unit 12 was located immediately above the plaintiff's bunk on a windowsill behind a curtain, opposite the door. There was no light switch near the door. The plaintiff occupied the bottom bunk and Mr Andrijasevich the top. There was no-one there but themselves. The other occupants were still enjoying the revelries at the food hall. The plaintiff turned the light off and fell asleep. 28 The plaintiff woke between 1.30 and 2.00 am needing to go to the toilet. When she woke she did not know which of the other occupants had come into the hut since she had fallen asleep but assumed at least some of them had. The room was in darkness. She could not see the doorframe but she could see the silhouette of the flywire door. 29 The plaintiff got out of bed and walked to the door, treading quietly in order not to disturb the other occupants. She could have easily switched on the light given the proximity of the light switch to her bed but did not want to disturb the other occupants of unit 12. 30 She could not see the door handle of the flywire door and automatically went to the left side to open the door expecting the handle to be on that side. She then found the door handle on the right hand side, cautiously pushed the door open and stepped forward. Having forgotten that there was no landing and the steps were steep she stepped out into the darkness expecting her foot to fall on a landing. Instead, she fell. She said that she "just went". 31 She could not remember actually falling down the steps and assumed she lost consciousness. She remembers lying at the bottom of the steps and her cousin Rhonda bending over her asking whether she was alright. She went to roll over and found she could not move because of pain in her
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left leg and elbow. She tried to use her left elbow to get up but could not because of the pain. 32 The plaintiff was taken to Rockingham Hospital where she stayed overnight. She was discharged in the morning, in great pain. No x-rays were taken at the hospital. A badly pulled groin muscle was diagnosed. 33 The Emergency Department notes from Rockingham Hospital which were tendered by consent appeared to contain a reference to the plaintiff smelling of alcohol. The plaintiff denied being affected by alcohol at the time of the accident. 34 She was conveyed back to Perth in great pain and the following Wednesday, which was the first working day after Easter, her daughter Marnie wheeled her in a wheelchair to her local general practitioner who sent her immediately for x-rays. A hairline fracture to her elbow and a fracture of the neck of her femur was diagnosed. 35 She was admitted immediately to Royal Perth Hospital where she underwent surgery on 27 April 2000. A pin and plate were inserted in her left femur. Her left elbow was treated conservatively. 36 On 2 May 2000 she was discharged on crutches. She did not return to Rich and Co after the accident. The plaintiff continued to be in extreme pain, particularly in her left leg. She stayed on crutches until about January 2001 although her left elbow healed. She continued to tell her specialist that she was in a good deal of pain. 37 On 3 October 2000 and despite her continuing pain the plaintiff commenced employment with Glass Block Constructions as a full-time receptionist/clerk earning $12 per hour. 38 She resumed basic duties in the home although she continued to have difficulties and had to be assisted by friends and relatives. Eventually she was referred to Mr O'Connor, orthopaedic surgeon whom she saw for the first time on 22 August 2001. He diagnosed a vascular necrosis in the left neck of femur and immediately put her off work. He operated on her on 29 August 2001 at St John of God Hospital to insert an artificial hip joint. 39 As it was clear that the plaintiff would not be returning to work for some time she resigned from Glass Block Constructions.
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40 The plaintiff was in hospital for 13 days following the artificial hip joint operation. She was discharged from the hospital on crutches which she used until about February 2002.
41 On 23 November 2001 the plaintiff commenced part-time work at Vee Two Australia which is a Ducati engine rebuilding service. She operates the accounts and acts as receptionist/clerk. She started working 12 hours per week. On 7 January 2002 she increased her hours to full-time. At the time of the trial, she was working at Vee Two Australia earning $16 per hour working a 42 ½ hour week. 42 The plaintiff described the pain that she still suffers in her left leg from time to time. She said that it has improved but her leg still sometimes gets heavy or agitated when sitting for long periods of time. She has trouble with stairs. She tires easily and has been advised to limit her physical activities by her orthopaedic surgeon. In particular he recommends against any bending beyond 90 degrees, squatting or getting up from a squat, heavy digging or lifting. 43 She has a prominent scar between a mid-point of her left outer thigh and her hip joint, as a result of the artificial hip joint operation. She does not wear short dresses because of the scar. 44 It is likely she will have to undergo at least two, if not three revisions of her artificial hip joint during her lifetime. The current artificial hip is expected to last between 10 to 12 years from when it was first implanted. Mr O'Connor says that the second and subsequent implants tend to come around more quickly than the first. Each of these operations will require hospitalisation, and three months away from work. 45 The plaintiff described herself as getting better at various activities but she still "does things in small doses". She has to wait for assistance to lift heavy things in the garden and lift pool chemicals. She says she is "a little bit protective" because of the chance of her hip dislocating through engaging in heavy physical activity. Mr O'Connor confirmed that this may occur. She cannot swim in the ocean, a pastime she loves. She used to entertain a good deal but cannot do so much any more. 46 The plaintiff's social life has been affected, particularly for the first 12 months after the accident when she said she "did nothing". She could not walk, stand or sit in a car for very long and describes herself as having been housebound for about 16 months. She said she does not do all the things she used to do and is limited in her activities with her grandchildren. She takes medication as prescribed by her doctor.
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Other witnesses for the plaintiff
47 Mr Andrijasevich and Ms Jennifer Norrish both gave evidence. They appeared to be witnesses of the truth and gave their evidence in a clear and forthright manner. 48 At the time of the trial Mr Andrijasevich and the plaintiff were no longer in a relationship. 49 Mr Andrijasevich said that on the night in question, he awoke when he heard "the commotion" outside the hut. When he went to assist the plaintiff that he said that the steps were illuminated by "a dull light". 50 Ms Jennifer Norrish is the plaintiff's sister-in-law. She awoke when she heard voices outside unit 12. She said that she could "vaguely" see the steps when she left unit 12 to assist the plaintiff. Neither Mr Andrijasevich or Ms Norrish, both of whom attended the party with the plaintiff, were asked about the plaintiff's level of alcohol consumption. We only have the plaintiff's evidence on this point. 51 Mr O'Connor, orthopaedic surgeon, gave evidence. He described the plaintiff's first attendance on him when the plaintiff's avascular necrosis was diagnosed. He said she was walking with great difficulty. This was because the fracture had not united and the joint was affected by avascular necrosis. 52 He described avascular necrosis as a condition in which the blood supply to the bone or part of it has been interrupted as a consequence of a fracture, and the bone dies. The joint undergoes oesteoarthritic changes and cartilage loss and the cenovial lining becomes inflamed and swollen. The condition is very painful. 53 Mr O'Connor said that the plaintiff would be fit for clerical work for the rest of her working life allowing time off for revision of her hip joint, and recovery thereafter. 54 Mr Saleeba was called. He is a qualified architect. He inspected the steps to unit 12 at the camp in November-December 2000, and prepared a report dated 21 December 2000. Mr Saleeba said that at the time of the inspection the steps did not comply with various aspects of the Building Code of Australia (BCA) which came into force in 1990, or its predecessor the Uniform Building By-Law 1974 (UBBL). In particular these require that landings be provided and that the minimum length of any landing be 750mm. No landing was provided at unit 12. He also
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pointed out that artificial lighting must now be provided in accordance with Australian Standard 1680.0 which requires a minimum of 20 lux on an external stair. 55 It was common ground that the Building Code of Australia did not apply to the building as at the date of its construction. There was no evidence as to the date of the construction of the steps to unit 12. Hence there is no means of identifying which, if any, regulation or building code governed its construction. 56 Mr Saleeba in his evidence described a landing as a "flat area of floor or walking surface before a step", which in this case would be positioned "at the top of the flight of stairs immediately outside the door". This is different to and distinct from the threshold which he described as "the actual doorstep at the foot of the door".
The defendant's case 57 The defendant called Mr Greenwood, who chairs the committee which administers the camp. He said that Apex is a charity, not for profit organisation which assists needy groups and individuals. 58 He is very familiar with the camp having gone there regularly from July 1985. Since 1995 when he became chairman of the committee, he has visited the camp a minimum of six times every year. 59 Mr Greenwood described a process of upgrading the camp which was planned in about January 2000. Actual work commenced in mid-2000 when the steps from unit 12 were removed and a ramp was put in which provides access to both units 11 and 12. A light was also installed on the outside wall of unit 12, near to the steps. This was all done prior to him hearing of the plaintiff's injuries which was about eight weeks after it happened. 60 All the work done on the camp is done by Apex volunteers and their friends with materials either brought by Apex or donated. 61 He said that he had used the unit 12 steps on many occasions and thought they were perfectly fine. He described the visibility at night as "fine". He referred to a very big night light which is the light on a tall pole situated near to unit 12. He agreed that this light faces away from unit 12. He said Windy Cottage had two sensor spotlights which come on with movement.
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62 Mr Greenwood initially denied that the installation of the light outside unit 12 was done to illuminate the steps. He said Apex had received a donation of electrical goods and there had been rewiring throughout the camp. This was in order to make the camp look uniform. He did eventually concede that it was also to improve the lighting.
63 He denied that the replacement of the steps after the accident had been effected because of the accident. He said that these had been a rectification of a long-standing problem. To his knowledge the steps at unit 12 had been there for about 20 years. He had been on a four hour walk around the camp with the committee and the steps at unit 12 were just one of the things that went on the list. He did not believe they were unsafe but had been changed to "make it look beautiful and in with everything else." 64 I note that exhibit 27, tendered by the defendant itself, described the upgrade in 2000 as being "To upgrade the Apex Holiday Centre to medium health requirements and provide disabled access to all facilities at the camp". 65 I found Mr Greenwood quite defensive and over-anxious to favourably portray the defendant. This is perhaps understandable given the hours of voluntary labour he contributes to the management of the camp. It was obvious that the installation of a light would be to improve lighting rather than to make the camp look uniform, a fact he eventually conceded. The absence or presence of a light globe would not add to or detract from the appearance of the camp, the attractions of which basically lie in its location, rather than its physical appearance. 66 It also seemed to me that changes to the steps must have been actuated by the defendant's desire to improve the safety of the camp. Mr Greenwood's reluctance to concede these rather obvious points in my view detracted from the overall value of his evidence about the state of light on the steps to unit 12. The defendant is not to be criticised for improving the safety of the camp. The defendant's efforts to improve the safety of the camp after an accident is not evidence of negligence, whether it was aware of the accident or not. 67 Mr Dominic Seeber was called by the defendant. He is 22, and is studying at the WA Academy of Performing Arts. He is the nephew of the camp caretakers and has stayed there frequently. He stayed in unit 12 around Christmas 1999 and January 2000. He had no difficulty with
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using the steps to unit 12 and found them "fine". He used to jump straight up from the bottom although he took more care going down the steps. 68 He sometimes went to the beach at night. He said it got dark at the beach but as he came over the sand dunes towards the camp, the large light threw light over the steps at unit 12. In fact he described the light on the top of the pole as facing unit 12. This was clearly wrong although this was his honest recollection. He had no recollection of the spotlights on Windy Cottage turning on in the evenings. 69 Mrs Shelley, the caretaker, gave evidence. She and her husband became joint caretakers of the camp in April 1999. They live full-time at the caretakers cottage on the camp and are paid a small amount per month by Apex to run the camp, do the office work, book work, banking and minor maintenance. They are not expected to do the cleaning but she does it anyway. 70 The camp was a mess when she and her husband arrived with a good deal of rubbish strewn in the bush around the camp. She and her husband had cleaned up the rubbish and extended the oval. Like Mr Greenwood she was quick to leap to the defence of the camp and its volunteers. 71 Mrs Shelley said she remembered the fiftieth Norrish family reunion well. She described doing her normal rounds of going around at dusk and turning on all of the available lights including inside lights. That night she had even got out her Christmas lights to light the area around the playground because it was dark. She said that she could remember actually going on her rounds that night and that the sensor lights on Windy Cottage were on, having come on automatically when it became dark. 72 She described the lighting around unit 12 that night as being extremely good and the steps to unit 12 being "quite well lit". 73 I accept that Mrs Shelley would be likely to recall the reunion because it was a big event for the camp, and she helped in the kitchen most of the evening. I find it difficult to believe that she had a clear recollection of turning on the lights at the camp and the extent of lighting around unit 12 on this particular night two years after the event. While she was doing her best to assist the court, I am of the view that this is more likely to be a reconstruction, based on her normal habit. She did not in fact hear of the accident until about six weeks after its occurrence. I think it unlikely that she would have a clear recollection of performing exactly the same duties that she performed every night, on one particular
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night. I think it is likely that Mrs Shelley did switch on all of the available lights. That was her normal practice. But I am not convinced that she would be able to recall that the spotlights at Windy Cottage were on, nor the extent of the lighting on the steps of unit 12. 74 She said the party was fairly noisy with an Irish folk band. She stayed up and assisted with the food preparation and cleaning up, and went back to her cottage with her husband about midnight, but stayed up and watched videos for a while because of the continuing noise. When she went to the toilet at 4.30 am there were still people up talking, with all the outside lights still on. 75 Before turning to the question of negligence the court must make factual findings concerning the state of the steps, the lighting at the time of the accident, and the consumption of alcohol by the plaintiff.
The steps 76 The court had before it a number of photographs of the steps as they were at the time of accident. The photos show a small fibro building with two white fly wire doors adjacent to one another located some feet above ground level. These doors are the entrances to unit 11 and unit 12. The door to unit 11 is higher off the ground than the door to unit 12. 77 The steps to unit 11 constitute five brick stairs with a wooden handrail to the right leading up to the fly wire door with a handle also on the right hand side. There is no landing. The interval between the top step and the threshold appears not to be particularly great. 78 The steps leading to unit 12 are quite different. They comprise three old worn wooden steps with a metal handrail to the left. They lead up to a white fly wire door with its handle on the left of the door frame. The space between the threshold and the first step is quite significant. It is agreed that this is a gap of some 22 cm. There is also no landing at unit 12. There are no external lights on the outside of the wall. The gradient of these steps is considerably more acute than that of the brick steps to unit 11.
The lighting 79 It is very difficult for the court to make a judgment on the basis of the available evidence about the visibility of the steps to unit 12 when the plaintiff attempted to traverse them at 1.30 am on 23 April 2000. There
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was no objective factual evidence before the court about the strength of any of the artificial lights around the camp, the extent to which these lights illuminated the steps, or whether there was any natural moonlight. Instead, the court has a panoply of subjective impressions from various witnesses, each coloured no doubt by their association with one or other of the parties in these proceedings. This is not to suggest any witness set out to mislead the court. Rather, the degree of light on a particular occasion is difficult to convey accurately, and perceptions and memories could well be affected by the surrounding events and circumstances. The familiarity of particular witnesses with the steps is also likely to affect their perceptions. 80 Two things are clear. The first of these is that at the time of the accident there was no direct lighting over the steps. There was no light at all on the side of the building where the accident occurred. The second thing that is clear is that while there was a light inside unit 12, the plaintiff did not turn it on for fear of disturbing other occupants of the hut. Hence, there was no light emanating from inside the hut when she took that ill-fated step over the threshold. 81 The extent to which there was light from other sources on the steps is difficult to determine. It was four days after the full moon so if it was a clear night, one could assume there was significant moonlight. However there is no evidence about this. The most we know about the weather was that it was a warm evening, but this does not assist at all in determining the level of cloud cover. Earlier, Mrs Shelley had thought it so dark that she had put on her Christmas lights around the food hall but this was many hours prior to the accident, and the amount of moonlight could well have changed in the meantime. 82 There were two other potential sources of light. One was the light which was situated on the top of a tall metal pole. Mrs Shelley estimated it was about 5 – 6 metres from unit 12 although Exhibit 6, an agreed document, describes the light as "10 m (?) away." All were agreed, except Mr Seeber who was clearly mistaken, that the light throws its beam directly away from unit 12. This is because the globe rests in a metal cover or backing, which prevents light being thrown behind it. The extent to which light flowed from this beam behind it or to other areas apart from the playground is difficult to determine. Most witnesses agree that it tended to throw at least some light incidentally over the steps of unit 12. However the strength of that light was never established. Mrs Shelley said that it threw extensive light whereas Mr Andrijasevich and Ms Norrish said that the light was insignificant.
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83 The other potential source of light over the steps to unit 12 were two spotlights on the wall of Windy Cottage. Windy Cottage is the cottage situated about 15 metres from unit 12. It had two spot lights, which according to Mrs Shelley were pointed directly at the steps of unit 12. She said that these came on automatically when it became dark. She also said that they were on when she did her evening rounds that night to turn on the lights. As indicated above, I doubt that this recollection is reliable.
84 Mr Greenwood said that the lights on Windy Cottage at the date of the accident were activated by movement not light. Whether the lights on Windy Cottage were activated by light or movement, there clearly were lights one of which at least was directed towards unit 12. There is no factual evidence before me about the strength of those two lights or (if they were movement activated) the distance over which they detected movement. The plaintiff, Mr Andrijasevich and Ms Norrish had no recollection of those lights being on at the time of the accident. Mr Seeber who had stayed at both unit 12 and Windy Cottage had no recollection of seeing the lights at Windy Cottage being activated by him leaving unit 12. 85 As can be seen, this evidence when considered as a whole is rather unsatisfactory. Doing the best I can with the material available to me, I find that there was some dull light on the steps to unit 12 at the time of the accident. This is supported by the accounts of Mr Andrijasevich and Ms Norrish. While their evidence might be slightly coloured by their association with the plaintiff, neither of them struck me as wishing to over enthusiastically advance her case. 86 It is impossible to say whether this light emanated incidentally from the security light, or the lights on Windy Cottage, both or neither. There was obviously some natural light. While the camp is spread out over a considerable area, lights from other cottages, the ablution block and the food hall, which remained on all night must have also had a part to play. In essence, I find that it was not "completely dark" as is suggested by the plaintiff, but there was some dull light illuminating the steps.
Was the plaintiff affected by alcohol? 87 I find that at the time of the accident Ms Lynn was affected to a minor degree by alcohol. On her own evidence she was not accustomed to consuming much alcohol. She had drunk five or six glasses of wine and a small amount of champagne between 5.00 pm and midnight. As she was caring for her grandson in the earlier part of the evening, I surmise
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that the plaintiff probably consumed most of this alcohol after he went to bed at about 9.00 pm even though she denied this was the case. Six standard glasses are the equivalent of one bottle of wine. For a woman of average height and build like Ms Lynn, who was unaccustomed to drinking much, I believe that the wine and champagne probably was still affecting her at the time of the accident to an appreciable, but not major degree. I think it played a small role in the accident, in the sense of affecting her alertness and her balance but only to a small degree.
Liability 88 The claim is brought pursuant to the Occupiers' Liability Act 1985 ("the Act"). The court must determine whether, in all the circumstances, the defendant owed a duty of care under general common law principles of negligence (Uzabeaga v Town of Cottesloe [2002] WADC 71 at [131] and the cases cited therein). 89 In determining the scope of the duty owed by the defendant consideration must be given to a number of factors enumerated in s 4(4) of that Act, which effectively repeat those matters to which the common law has regard. 90 The issues which are central to liability are:- 91 The plaintiff's statement of claim also alleged a number of deficiencies in the construction of the steps to unit 12 including the failure of the defendant to comply with the Uniform Building By-laws and the BCA. 92 During the trial it was conceded by the plaintiff's counsel that on the basis of the evidence, the plaintiff's case revolved around that first step she took over the threshold that night. She did so expecting a landing. If there had been a landing, the accident is likely not to have happened. 93 Furthermore, it was submitted that if there had been external lighting to the steps the plaintiff would have been able to more readily observe the absence of a landing and the drop between the threshold and the first step
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and would probably not have suffered injury. Hence, it is the lack of a landing and adequacy of the lighting around which this claim ultimately focused. 94 The plaintiff says the accident was entirely foreseeable when one looks at the construction of the steps and the surrounding circumstances. Remedying the problem would not be expensive even for a voluntary organisation. The degree of risk vastly outweighs the minor expense and inconvenience of remedying the risk. 95 The defendant argued that the actual cause of the accident was the plaintiff's dangerous act in stepping over the threshold into the darkness after having consumed alcohol to the point that her judgment and balance were impaired. This, it said, negates any accusation of negligence against the defendant because the accident was caused entirely by the plaintiff's own negligence. 96 The defendant also points to recent authority to the effect that the duty owed by an occupier depends very much on the context. The nature of the Apex Holiday Camp, being a bush camp by the sea, with it all the quaintness and charm of rough accommodation, lessens the standard of care owed to those staying at the camp. Visitors stay at the camp expecting basic accommodation, and in fact seek that out on many occasions. The huts do not have ablution facilities. There are only communal eating facilities (except for Windy Cottage). Most of the time is to be spent outdoors. It is really to all intents and purposes a camp, albeit with buildings on it. 97 It was put on behalf of the defendant that even if it breached the duty it owed the plaintiff, that a deduction of up to 90 per cent should be made for her own contributory negligence in failing to take better care for her own safety. The plaintiff had been at the camp before and knew of its nature. She only paid $7 a night to stay there. She used to be a property manager and had inspected properties, including steps. Prior to the accident she had already formed the view that the steps posed a danger.
Findings as to liability 98 I do not agree that it was solely or largely the plaintiff's carelessness that caused the accident. There were certainly some elements of carelessness in her behaviour, which are dealt with under the topic of contributory negligence. All accidents are multifactorial. However, the
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real, proximate and substantial cause of the accident was not her conduct, but the nature of the steps, and the lack of adequate lighting. 99 It would not be reasonable to expect the same standards at a five star hotel as those available at the camp (Gondoline Pty Ltd v Hansford [2002] WADC 214 at [58] per Miller J). A reasonable person would know of the need to proceed with caution, because of her or his unfamiliarity with the steps and the basic nature of the accommodation. However, this consideration is not weighty enough to tip the scales of negligence totally in favour of the defendant. 100 It is necessary then, to turn to questions of the duty, standard of care and breach of duty on the part of the defendant. The defendant concedes that it owed the plaintiff a duty of care, as occupier of the premises to take reasonable care to prevent foreseeable risk of harm. This duty is recognised by the common law and s 5(1) of the Act. 101 The real issue in this case is the scope or standard of care required of the defendant. Steps are inherently but obviously dangerous (Wilkinson v Law Courts Ltd [2001] NSWCA 196 at 32; Stannus v Graham (1994) A Tort Rep 81-297 at 61,566). Steps may be constructed in many ways to minimise their danger, including warning signs, illuminated strips, handrails, predictable and carefully designed dimensions and lighting. However, the duty is not to make the steps as safe as human engineering skill can make them, but only to take such care as is reasonable in the circumstances. 102 What are the relevant circumstances determining the scope of the defendant's duties in this case? In my view, they are: (i) the rough, basic nature of the accommodation, and the low tariff; (ii) the lack of toilet facilities in unit 12 and the need therefore for the steps to be used at night; (iii) the small expense of providing adequate lighting as compared to the risk of danger to the plaintiff; (iv) the gravity and probability of an injury arising from the use of the steps at night. 103 The standard of care owed by the defendant to the plaintiff is to take reasonable care. In determining what is reasonable, one must take into account the circumstances. Notwithstanding the basic nature of the accommodation, the defendant provided the huts and in doing so should have taken reasonable action to prevent foreseeable risk. It was entirely
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foreseeable (indeed obvious) that a person staying at a hut may need to go to the toilet at night, requiring him or her to leave the hut because of the lack of toilets in the huts. 104 I have considered carefully the arguments by the defendant, drawn from the judgments of the High Court in Jones v Bartlett (2000) 205 CLR 166 and Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, about the standard of care owed by defendants responsible for the provision of premises, and public reserves. I understand the dicta in these cases to require a close examination of the actual circumstances surrounding the accident, and of the reasonable expectations of people using the premises concerning the measures to be taken by the occupier for their safety. I am of the view that the provision of adequate lighting to permit a person to safely leave the units at night is a reasonable expectation to have of a voluntary organisation providing low-cost accommodation such as the camp. 105 Undoubtedly, there are questions of degree involved. The steps outside a five star city hotel which might require a handrail, strip lighting under every step, a ramp for disabled access and a 24-hour uniformed porter are obviously different to those to be reasonably expected at the camp. Had the camp simply provided land for camping, with no ablution facilities the standard to be reasonably expected may have indeed be lower. In my view the provision of huts, with steep stairs, without their own toilets, increased the requisite standard to one requiring adequate lighting, to permit the ablution facilities to be used at night. 106 In my opinion the standard of care in this case included the duty to provide adequate lighting in the form of light shining directly on the steps. 107 No evidence was led concerning whether the plaintiff would have used a light had it been there. Even if it had, such evidence is often self-serving and unhelpful. 108 The plaintiff had, however, considered using the internal light and decided not to because of her concern not to wake others. The plaintiff in my view was not a foolhardy or careless person. The overall impression I gained from observing her in the witness box was that she was usually reasonably careful for her own safety. She had a stable background with no indication of poor judgment or impulsivity. 109 I find that had there been a light switch to turn on a light illuminating the steps she would have used it. I also find that such a light would have permitted her to see the steps, reminding her of her observations of the
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day before, and proceeded with great care, thereby preventing the accident. 110 I recognise that the resources of a voluntary organisation are principally the unpaid labour of volunteers. It is important to recognise the actual opportunity cost to the organisation of undertaking these works as opposed to others. Even taking this into account, the cost of installing a light globe would have been minimal. That must be compared with the extent of the risk, which in my view was considerable. I think the defendant ought to have provided adequate outside lighting to unit 12. It did not do so, and this failure resulted in the accident and Ms Lynn's injuries. 111 The lack of a landing also in my view played a part in the accident. Even without adequate lighting, the existence of a landing would have reduced the risk of an accident. That is because there was quite a long drop of about 22 centimetres between the floor of the unit and the first step. 112 While the plaintiff conceded that she stepped onto something she could not see, the state of lighting being what it was meant that this was always going to be the case. She expected a landing, as we tend to do, having obviously forgotten her experience of using the steps twice the day before. She was disoriented because she was in unusual surroundings, had an urgent need to go to the toilet, and was very concerned not to wake the other occupants. With all of these matters preying on her mind, she relied on her usual experience of the construction of steps and landings. Put another way, had there been a landing, with or without lighting, the accident is unlikely to have occurred. Had there been adequate lighting on the steps but no landing, the accident is even less likely, but there would still have been some danger. 113 I think it is reasonable to expect the defendant in all the circumstances to have installed both a landing and an external light. But either a light or a landing would probably have prevented the accident. 114 The defendant submitted that in considering the standard of care, one must consider that standard in relation to the entire camp, not only the steps. It points to remarks by Gleeson CJ in Jones v Bartlett (supra) at [15] about the danger in focusing solely on the accident. If there is a duty to provide adequate lighting over the steps to the unit, that duty applies throughout the camp. It would be unduly onerous, says the defendant to require it to inspect and rectify "the multitude of potential risks, given the
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age and condition of the premises, which could give rise to a foreseeable risk of injury". This rather overstates the question in my view. Furthermore, the defendant did in fact inspect the steps prior to the accident and decided to install a light and to remodel the stairs. This was not a particularly onerous process but one undertaken as part of a cycle of maintenance. 115 As would, no doubt be apparent from the foregoing remarks, I consider that there was not adequate light provided on the steps. The "dull lights" observed by the witnesses were insufficient. Furthermore, the failure to provide a landing was, in my view, a breach of the defendant's duty to the plaintiff. Both of these omissions caused the plaintiff's loss.
What is the significance of the small tariff? 116 It was argued that the nominal tariff paid by the plaintiff of $7 per night reduced the scope of the duty owed by the defendant. 117 I do not agree with this. Had the case been framed in contract, there may have been some basis in this. However, considered as a question of duties owed in the law of negligence, I do not think one can bargain away their duty to take reasonable care for the safety of others. 118 The significance of the amount paid by the plaintiff is that it is an indication (among others) of her reasonable expectations about the level of accommodation to be provided and therefore one of the circumstances to be considered when determining the scope of the duty. Even if no tariff had been charged at all, a reasonable person would be entitled to expect some lighting on steep steps which needed to be used at night.
Contributory negligence 119 I find that the plaintiff did not take as much care for her own safety, as she should have. 120 The relevant factors in reaching this conclusion are:
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(iv) her lack of familiarity with the steps;. 121 All of these factors should have alerted the plaintiff to the need for extreme caution. While she insisted that she was being cautious for her own safety her main preoccupation appeared to be her concern not to wake others. 122 Had she paused to consider her memory of the previous day she would not in my view have stepped so trustingly out into the darkness, but would have taken more care. 123 The plaintiff had already observed on arriving at unit 12 that the steps were steep and she needed to be wary in using them. She had used them twice to enter and leave the hut to join the party. She had used them again on re-entering the hut to go to bed. Hence on these three occasions some hours before the accident she had the lack of a landing and the gap between the door and the first step brought to her attention. She knew the hut was old and basic. 124 I accept the defendant's argument that the plaintiff took less care than was reasonable in all the circumstances, and propose to reduce her award of damages accordingly. In reaching this figure, I am influenced by the plaintiff's consumption of alcohol, and that she had observed the steps were dangerous some hours prior to the accident. I am also influenced by the fact that she failed to switch on the internal light before crossing to the door. I accept she was concerned about the comfort of others, but had she stopped for a moment to consider the situation, her recollection of the steps would have been likely to occur to her. Furthermore, she had a legal duty to take care for her own safety, and not to prefer the comfort of others over that legal duty. It would have been unreasonable of the other occupiers of unit 12 to have begrudged the plaintiff a few moments of disturbed sleep in preference to her placing herself in danger of a devastating accident. 125 Comparing these issues against the circumstances of the defendant's negligence, I am of the opinion that the defendant's omissions played a much greater role in the accident. This relates both to the extent to which the defendant departed from the reasonable standard of care and the relative importance of each of their acts in causing the damage (Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALR 529). 126 In my view a deduction of 30 per cent is reasonable. 127 I now turn to an assessment of the plaintiff's damages.
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Pain and suffering
128 The plaintiff suffered extreme pain at the time of the accident and for several days afterwards until her fracture was diagnosed. She underwent surgery. The complication of avascular necrosis involved extreme and ongoing pain and required a total hip replacement and recuperation from that surgery. She was on crutches for a total of 16 months. 129 She suffered a good deal of pain over that two-year period. She is still in some pain. She can expect two more replacements of her artificial hip, requiring hospitalisation, surgery and recuperation. This would be a daunting prospect for anyone. It will become even more daunting as the plaintiff grows older. 130 The plaintiff commenced working again about eight months after her first operation and three months after her second operation, on both occasions while still on crutches. However I gained the strong impression that these early returns to work were driven by economic necessity, and a determination to be self-supporting rather than evidence that her pain was not as severe as she claimed. 131 She will bear the scars of her surgery for the rest of her life. While not obvious while dressed conservatively, the scarring is severe, restricts the plaintiff's choice of dress, and clearly affects her self-esteem. She wept in court as she spoke of the effect of the scarring on her life. 132 Her mobility, ability to go about her daily activities and her social and recreational activities have been significantly curtailed. 133 All of these matters, including the likelihood of further pain and restriction of movement, and the certainty of further hospitalisation, major surgery on two occasions and the need for lengthy recuperation point to a large award. 134 I award the plaintiff $100,000 for her pain and suffering.
Economic loss (past) 135 The plaintiff is entitled to compensation for her past economic loss sustained during the following periods: (i) From 23 April 2000, which was the date of the accident and 3 October 2000, the date she gained full-time employment with Glass Block Constructions;
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136 The defendant argues that the plaintiff would have lost her job with Rich and Co, regardless of the accident. There is no doubt that the relationship between the plaintiff and Rich and Co was strained immediately prior to the accident. I find there would have been a parting of the ways even had the accident not occurred. However, the plaintiff's history shows an easy ability and determination to find work. I think it is fair to make an overall deduction of two weeks' income to take account of the fact that had the accident not occurred the plaintiff would have left Rich and Co and been out of work for a short period. 137 I calculate the plaintiff's past economic loss as follows:
32 weeks x $448 net per week = $14,336 (iii) For the period the plaintiff worked part-time at Vee Two Australia between 22 November 2001 and 7 February 2002 I award her $2,258 being the difference between her actual earnings and what she would have earned had she been working full-time. 138 The plaintiff's total award for past economic loss is $16,594.
Interest on past economic loss 139 I calculate this at 2.5 years x 3 per cent x $16,594 being $1,244.
Past loss of superannuation benefits 140 On the Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192 formulae, this loss is calculated at $538 gross x 43 weeks x 8 per cent x 70 per cent = $1,295.
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Past gratuitous services
141 These are agreed at $2,250.
Economic loss (future) 142 The plaintiff is now working at Vee Two Australia earning $16 gross per hour. This is a significantly higher rate than that earnt by the plaintiff before the accident. Because of this, there is no basis for an award for future loss of earnings. However, the plaintiff should be compensated for the loss of income she will suffer as a consequence of the need to have her artificial hip revised which will be required during her working life. 143 The defendant says only one revision will be needed during her working life. Mr O'Connor's evidence was that a revision would be required every 10 to 12 years, each subsequent revision tending to come around earlier. I find that one revision will undoubtedly be required and probably a second, during the plaintiff's working life. 144 It is also suggested by Mr Bradley that the plaintiff will have difficulty finding work after her first revision when she is likely to be in her mid-fifties. If she does require a second revision while still working, this would be of even greater concern. The likelihood of this is difficult to determine, but is certainly a possibility, depending on the attitude of the plaintiff's then employer and a range of other factors, which are impossible to predict. 145 Doing the best I can with these two variables, I think the best approach is to allow the plaintiff six months loss of future earnings (three for each revision) and add a small allowance for lost income for the possibility of the plaintiff's future employer refusing to re-employ her after one or other set of surgery, and the likelihood of part-time work after each revision. 146 Calculating future loss on the basis of two periods of three months each I calculate future economic loss as follows:
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(iii) An additional lump sum of $4,147 to bring the total future economic loss award to $10,000 to take into account the possibility of the plaintiff becoming less employable as a consequence of the revisions of her artificial hip.
Future medical and hospital expenses 147 These are agreed at $15,000.
Special damages 148 Special damages are agreed at $24,710. 149 I award interest on that amount of $1,853 making a total of $26,563.
Reduction for contributory negligence 150 I make a 30 per cent reduction to take account of the plaintiff's contributory negligence.
Summary of damages award 151 A summary of the award of damages made is as follows: Pain and suffering $100,000.00 Past economic loss $16,594.00 Interest on past economic loss $1,244.00 Past loss of superannuation benefits $1,295.00 Past gratuitous services $2,250.00 Future economic loss $10,000.00 Future medical and hospital expenses $15,000.00 Special damages plus interest $26,563.00 Total $172,946.00 152 A deduction of 30 per cent for contributory negligence brings the total down to $121,062 (say $121,000).
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