Marshall v Cunningham

[2000] NSWSC 1006

CITATION:	Marshall v Cunningham [2000] NSWSC 1006
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 21441/96
HEARING DATE(S):	19/10/2000, 20/10/2000
JUDGMENT DATE:	17 November 2000
PARTIES :	Chrissie-Joy MARSHALL v Thyrone Gardiner CUNNINGHAM
JUDGMENT OF:	Ireland AJ at 1

COUNSEL :	Ms I Ryan - Plaintiff Mr C Jackson - Defendant
SOLICITORS:	Webb Thom & Associates - Plaintiff Darvall Rynne Ebbett & Associates, Queensland - Defendant
CATCHWORDS:	Damages claim for personal injury - occupier's liability - not taking adequate precautions - failing to provide suitable steps to enter caravan - no breach of duty of care established.
DECISION:	Judgment for the defendant. The plaintiff is to pay the defendant's costs ; I note that in his judgment delivered 17 June 1999 on the motion seeking transfer of the hearing of the case to the Supreme Court of Queensland Justice Barr ordered the defendant to pay the costs of the motion in an amount to be agreed or assessed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

CORAM: IRELAND AJ

FRIDAY, 17 NOVEMBER, 2000

21441/96 - Chrissie -Joy MARSHALL - v - Thyrone Gardiner CUNNINGHAM

JUDGMENT

1 HIS HONOUR: By statement of claim filed 20 December 1996 the plaintiff, Chrissie-Joy Marshall sues the defendant, Thyrone Gardiner Cunningham claiming damages for personal injury allegedly sustained by her on or about 11 January 1994 when the plaintiff was stepping out of a caravan located on the defendant's property "Rodmar", Lupton Road, Beaudesert, Queensland.

2 In her statement of claim the plaintiff alleged the following particulars of negligence:-

(a) Failing to take any or any adequate precautions for the plaintiff's safety;

(b) Putting the plaintiff in a position of peril in the circumstances;

(c) Failing to provide the plaintiff with a proper and safe means of exit from the said caravan;
(d) Providing the plaintiff with only one step to obtain exit from the said caravan;
(e) Failing to provide a handrail to assist the plaintiff in exiting from the said caravan;
(f) Providing a stair or step to the caravan which involved the plaintiff in a large step downwards from the surface of the caravan to the step and then the step to the ground, and required the plaintiff to engage in movements which were unsafe;
(g) Failing to provide a set of steps to the said caravan;
(h) Failing to provide more than one stair or step as means of access to and from the said caravan;
(i) Failing to assist the plaintiff out of the caravan and in the use of the said step.

3 In her evidence-in-chief the plaintiff said that she had first met the defendant in the early 1970s when she had agisted horses on his property "Rodmar" for a period of time. In 1993 following the break-up of the defendant's marriage, they became re-acquainted and spent some time on a holiday together. This holiday, which occurred some three weeks prior to the plaintiff's injury, included some time spent together in the caravan in question which was, on that earlier occasion, parked at a caravan park.
4 The plaintiff gave evidence that following this holiday together the defendant invited her to "come up and spend some time", saying further, that they could stay in the "second house" which was an unfurnished residence adjacent to the defendant's property "Rodmar".

5 Following a number of telephone calls the plaintiff purchased an airline ticket from Sydney to Coolangatta where she was met at the airport by the defendant.

6 Following the meeting at Coolangatta Airport the plaintiff and the defendant visited some friends and then proceeded to the property "Rodmar".

7 The plaintiff gave evidence that upon arrival at "Rodmar" "we pulled up in the car very close to the caravan…The caravan was situated very close to the main house". Clay (the defendant) had said that "we were going to stay in the caravan for that first night" (T5.35).

8 The defendant carried the plaintiff's suit cases to the caravan and from inside the caravan, he, in the words of the plaintiff "pulled me up into the caravan" by taking hold of her arms. The plaintiff was asked the question:

Q. Was there a conversation before you entered the caravan?
A. I said that this wasn't much good to me, that I really needed the steps down and could Clay pull the - "could you pull the steps down"?

9 The plaintiff gave evidence that this conversation occurred when she arrived at the caravan and looked up and realised that she had to take a large step to get up into it. The response which the plaintiff says the defendant gave was:

" We are only staying here one night, we don't really need to ."

10 The plaintiff said that next morning the defendant assisted her to alight from the caravan. They went upstairs in the main house which was constructed in the style known as a "Queenslander" with the living area elevated to the second storey. During preparation of breakfast, the defendant, on the plaintiff's version said that he would like some jam with his toast. She said that she remembered that there was some jam in the caravan saying: "There is some strawberry jam in the caravan, I'll go and get it." The plaintiff said that she went downstairs to the caravan, endeavoured to pull the stairs (of the caravan) down, but was unable to and so climbed up into the caravan and got the jam. When exiting the caravan, holding the jam in her right hand and with her left hand holding "not a handle but a grip on that side that I could grab hold of", she stepped down with her right foot and "went over" on her right ankle. She "screamed" and the defendant came running down and assisted her back upstairs.

11 The plaintiff applied ice and frozen peas from the freezer to her ankle which was "immediately very swollen". She took the medication Mersyndol, an analgesic and some days later attended a doctor on the Gold Coast. No x-ray of her ankle was taken.

12 Although in pain and "teary at times" the plaintiff continued her stay with the defendant, visiting friends and attending the Magic Millions horse sale with the defendant. The plaintiff said that a week or ten days later she returned to Sydney at which time she attended Ryde Hospital.

13 In his report of 30 January 1994 Dr Benjamin Teo, whose report is part of Exhibit "B" disclosed that the plaintiff attended Ryde Hospital on 25 January 1994 when an x-ray of her right ankle "showed a fracture involving the tip of the fibular malleolus in satisfactory position".

14 In cross-examination the plaintiff agreed that the area where the caravan was parked was a level lawn-like grassed area which was mown short.

15 The plaintiff was shown two photographs of a caravan (Exhibit "2(a)" and "(b))" which she was asked to identify as the caravan in question. She said that she would almost have said "yes" but that the awning at the front of the caravan did not look the same. She said "I am not saying it is not the caravan" but that "there are several things that I do not recognise about this photograph". (Exhibit "2(a)").

16 The plaintiff could not recall certain other features of the caravan and ultimately as to it being the caravan in question said "it is possible but not probable" (T24.28).

17 During the course of the plaintiff's cross-examination and in light of her evidence, leave was sought and granted to amend the statement of claim to delete the words in paragraph 3 "by means of a step located at the side of the said caravan" and further, to delete sub-paragraphs 4(d), (f) and (h). An amended statement of claim reflecting the amendments was duly filed in Court.

18 The effect of the amendments to the statement of claim is to change the plaintiff's case from allegations of an inadequate single step as originally pleaded to an allegation of there being no step at all as constituting the negligence sued upon.

19 When asked about there being jam in the caravan, the plaintiff said that she had brought strawberry jam with her from Sydney in her luggage. When she went to get the jam the plaintiff said she tried to pull the step down but was unable to.

20 The plaintiff's case on liability, depends, in its entirety upon her memory of events which occurred almost seven years ago. It is noteworthy that prior to being shown the defendant's photographs Exhibit "2", she referred to "steps" and after seeing the photograph she referred to a single "step". However, later in cross-examination the plaintiff was emphatic that there were two steps accessing the caravan when, on her prior visit, she had spent time with the defendant staying in the caravan in question on holidays.

21 In describing the events which gave rise to her injury the plaintiff said "I was putting my right foot out so that the weight would have been on my right foot; I was hanging on to something in the caravan." (T32.43).

"Q. What were you hanging on to?
A. I believe it was some type of rail there - a rail - perhaps to hang teatowels on or something like that".

22 Exhibit "2(a)" depicts the open door exposing the area where the plaintiff indicated the rail was located, however, there is no rail evident in the photograph.

23 In re-examination the plaintiff said that the minimum height she had to step down from the caravan to the ground was a distance of two feet and that it may have been "a little bit higher than that".

24 The evidence of the defendant is largely in direct conflict with that given by the plaintiff. He identified the caravan in question as being that depicted in Exhibit "2(a) and (b)". He said that he had owned the caravan for fifteen years or longer and that it was the only caravan he had owned. The defendant said that the caravan depicted in Exhibit "2" was the caravan in which he and the plaintiff had spent some time together on holiday some weeks prior to the visit when she injured her ankle on 11 January 1994.

25 The defendant said in evidence that the caravan, as depicted in Exhibit "2" is set up in precisely the same manner in which it has always been set up and that is the position it was in when the plaintiff was injured. The pictures which constitute Exhibit "2" were not taken at the property "Rodmar" but were taken at the caravan's present location. The ground however is level as it was at "Rodmar" and contrary to the plaintiff's impression, the wheel of the caravan is not resting in a depression as stated by the plaintiff but is merely in shadow.

26 The method the defendant described as positioning the caravan consists of winding the jockey wheel at the front of the caravan down to a point where the spirit level which can be seen in the photographs on the inside of the door of the caravan, indicates that the floor is level.

27 The defendant identified the object resting on the ground against the step in Exhibit "2(b)" as being a matchbox. He estimated the height of the door threshold above ground level to be about twelve to fifteen inches without the step being in position but was adamant that at the time the plaintiff "went over" on her ankle, the step was in the position as shown in Exhibit "2".

28 The defendant gave evidence that in January 1994 the mechanism of the step which slides out when in use and slides back under the caravan when in transit, was not damaged in any way. In answer to the question "What degree of force would you say is needed in order to operate it?" He answered "Not a lot, it just slides out". It was necessary only to "grab hold of it, pull it, and slide it out".

29 The incident in which the plaintiff injured her ankle was described by the defendant as having occurred in the mid to late afternoon of their arrival at "Rodmar". He said that he had placed the plaintiff's suit case in the caravan on the bed and gone upstairs in the adjacent house and was having a drink of water at the sink when he heard the plaintiff call out "Oh, I've hurt myself". He had responded "are you all right?" and had received the reply "yeah, I've only twisted my ankle".

30 The defendant said that he did not at that stage go down stairs but noticed after that that the plaintiff walked with a slight limp consistent with having said that "she'd just sprained her ankle". He said that there was no mention of the steps of the caravan whatsoever.

31 It was the defendant's evidence that he and the plaintiff did not stay in the caravan at all on that occasion but stayed in the second house which he said is located some 350 metres away from the main residence. He said that the plaintiff walked backwards and forwards between the two houses to help work at the main house. She wasn't employed in any way. The defendant said that he had five employees on staff feeding 120 horses which were spelling on the property. It was necessary to feed these horses night and morning. They were fed four tonnes of fresh cut lucerne which had to be forked on to a trailer and fed out to the horses. He said that his work is that of travelling around all day every day doing various things with horses including shoeing, drenching, doing their teeth, and handling horses generally and that for a week when she was in Queensland the plaintiff travelled around with him every day while he did this work and that she participated in doing it with him. They also attended the Magic Millions horse sale together.

32 During the week, the defendant said that the plaintiff complained that her ankle was a bit sore but she continued to walk. He discussed with the plaintiff taking her to the doctor to have a look at the ankle which was ultimately agreed upon and this was done.

33 Following the visit to the doctor the defendant gave evidence that the plaintiff had said "they want me to have x-rays and I haven't got time for that". She continued to walk with a slight limp but did not give up any of the activities which he described.

34 Concerning the incident described by the plaintiff in going to the caravan to obtain jam, the defendant said that there was no food in the caravan whatsoever and that he had no recollection of any such incident as described by the plaintiff relating to jam which she claimed to have brought from Sydney in her luggage.

35 There is no issue that the defendant was the occupier of the premises "Rodmar" upon which the caravan was parked nor that the defendant was the owner and in the relevant sense the occupier of the caravan at the material time.

36 In the circumstances the duty of care which devolved upon the defendant was to take all steps reasonably necessary to avoid injury to the plaintiff.

37 The onus which rests upon the plaintiff is to establish breach of duty of care on the part of the defendant on the balance of probabilities.

38 I am satisfied that at a time shortly after her arrival at "Rodmar", most probably on the afternoon of 11 January 1994, the plaintiff experienced an incident during which, in the absence of the defendant and whilst alighting from the caravan into which her luggage had been placed by the defendant she, "went over" on her ankle sustaining an injury which was, at first, thought to be a sprain but which, upon x-ray examination, a fortnight later at Ryde Hospital on 25 January 1994, was established to be "a fracture involving the tip of the fibular malleolus in satisfactory position".

39 The issue of liability was fought on the question of whether or not, at the relevant time, the sliding step which, it is common ground, was fitted below the threshold of the door of the caravan in question, was, at the material time, in its extended as opposed to its retracted position.

40 The plaintiff's evidence on what was seen as the critical issue was, in a number of respects, inconsistent and was unsupported by either expert or lay evidence which suggested any defect in the step mechanism or its design.

41 The plaintiff's evidence regarding the allegation of negligence was compromised by the change of direction in her case as pleaded on the one hand, and as described in her evidence-in-chief, on the other.

42 When confronted with the photographs Exhibit "2", the plaintiff's case changed to one of there being no step at all rather than there being an inadequate number of steps. Her evidence was unconvincing. The evidence of the defendant is to be preferred. I find the step illustrated in the photographs Exhibit "2" to have been in place at the material time and I find further that the plaintiff has failed to discharge the onus of proving breach of duty of care on the part of the defendant.

43 With respect for the views of others, I indicate the damages to which, in my view, the plaintiff would have been entitled had she been successful on the issue of liability.

44 Assessment of Damages

The plaintiff was born on 9 March 1951. At the time of injury on 11 January 1994 she was aged 42 years and 10 months. She is presently aged 49 years and 8 months.

45 Exhibit "G" which is an extract from the personnel file of the plaintiff relating to her employment with the NSW Police Service indicates that the plaintiff is a Senior Communications Officer/Crisis Co-ordinator who reached her year 5 salary increments in 1992 and continues in that employment. She commenced employment with the Police Service in 1988 having obtained a degree in psychology from A.N.U. in 1976. The plaintiff is a widow with one child, a son born in 1978. In 1980 her husband died as a result of injury received when a horse upon which he was playing polo fell.

46 In 1992 the plaintiff obtained a diploma in management from Meadowbank TAFE and in 1993 undertook a forensic technicians course at the University of Technology, Sydney.

47 In the period 1996 to 1999 the plaintiff attended Sydney University where she obtained the degree of Bachelor of Health Science, whilst continuing to work full-time in her employment with the Police Service.

48 Following her injury the plaintiff's first medical attention was offered by Dr Vana, a general practitioner who conducts his practice at 5 Prince Street, Narang. Her attendance upon Dr Vana was unrelated to her right ankle injury. However, during the course of this consultation she mentioned a twisting injury which had occurred some two days before. Dr Vana noticed swelling and tenderness of the right ankle and recommended that an x-ray be performed to exclude fracture. Dr Benjamin Teo first saw the plaintiff on 3 February 1994 at the request of her family physician.

49 At the time of examination Dr Teo noted the plaintiff's right ankle to be immobilised in a posterior plaster cast. She was "ambulant non-weight bearing on crutches". On 15 February 1994 the plaster slab was removed and a fibre glass cast below the knee was applied, the fracture being noted as maintained in an anatomical position. The plaintiff was reviewed periodically and was "mobilising non-weightbearing with crutches until 17 March 1994 when the cast was removed."

50 When last reviewed by Dr Teo on 7 May 1994 the plaintiff was noted as having made satisfactory progress having discarded her crutches on 2 May when she was walking with full weightbearing and without a problem except for a slight antalgic gait favouring the right ankle. Minimal ankle swelling was noted however the fracture site was not tender, the ankle movements were relatively full and sensation and circulation of the foot were normal. Dr Teo observed that "clinically the fracture had united".

51 On 7 July 1994 the plaintiff came under the care of Dr Ed Marel, an orthopaedic and trauma surgeon.

52 Dr Marel had before him an x-ray of 4 June 1994 which showed a non-union of the fracture of the tip of the lateral malleolus of the plaintiff's right ankle. There was also a CT scan which showed that a fragment of the fracture was ununited. At operation on 25 July 1994 Dr Marel reattached the bone fragment by introduction of a screw.

53 Post operatively the plaintiff's ankle was placed in a plaster until removal of sutures on 4 August 1994 after which time the plaintiff was allowed to remain out of plaster but advised not to take weight on the foot for a period of four weeks. The prognosis was for a normal or near normal ankle "with time."

54 In his report of 23 March 2000, Dr Marel reported having seen the plaintiff on 23 December 1999 when, upon examination she had good range of movement in the ankle and the lateral ligaments were non-tender. She was however very tender over the tip of the malleolus and over the tip of the screw. X-rays taken at that time showed that the fracture appeared to be united. The plaintiff was placed on a waiting list as a public patient for removal of the screw. Dr Marel estimated her percentage disability at the ankle (i.e. below the knee) at 5%.

55 On 22 May 2000 the plaintiff was admitted to hospital for a day for the removal of the screw in her ankle. She was discharged home without problems and seen again in the outpatients department on 8 June 2000 for removal of sutures. In his report of 8 September 2000 Dr Marel notes that "at that stage she had already noted an increase in her range of movement, we asked to see her again if there were any problems".

56 X-rays taken on 8 September 2000 showed some deformity resulting from the fracture and from the screw "but these were minor". In this report Dr Marel expressed the opinion that the plaintiff "is coping with work quite well but does have residual disability from her injury despite the two operations". He assessed the on-going percentage of permanent disability at the level of the ankle at between 7% and 10%.

57 Dr Peter Conrad who saw the plaintiff for medico-legal assessment furnished two reports the first of which is dated 3 September 1998. His examination of the x-rays of 17 January 1995 disclosed the previous fracture of the lateral malleolus, transfixed by metallic screw. The alignment he described as "excellent and partial bone union is present though a small residual defect remains". He considered the prognosis to be uncertain and considered the plaintiff to have sustained a 25% permanent loss of the efficient use of the right leg below the right knee. In an up-date report of 11 October 2000 Dr Conrad recounted a history from the plaintiff that she continued to have pain and stiffness in the right ankle which was worse when standing, walking, and going up and down stairs. Once again Dr Conrad offered a prognosis of uncertainty with a 25% permanent loss of the efficient use of the right leg below the right knee.

58 The plaintiff gave evidence of having led an active life in a physical sense prior to her ankle injury which involved horse riding and training and coaching of others in that activity. She gave evidence of having had involvement with horse riding and the training of horses virtually all her life and claims to be unable to participate in this activity as a result of her ankle injury.

59 The plaintiff in evidence said that she has given up her other sporting activities which, at the time of her injury included parachute jumping and water skiing. She said that she sees her general practitioner not on a regular basis but only when she needs to saying "he has never treated me for my leg except to give me pain killers". (T20.20).

60 In assessing general damages I take into account that the plaintiff has given evidence of a physically active lifestyle which has been curtailed by continuing ankle discomfort the aetiology of which is not clearly established by the medical evidence presented in her case.

61 I accept that during the period between injury and stabilisation of the ununited fracture by Dr Marel on 27 July 1994 the plaintiff would have been significantly disabled and that since that time she has suffered lessening disablement and discomfort which has, nevertheless, curtailed her sporting and recreational activities. This curtailment must nevertheless be seen in the light of the fact that the plaintiff is now approaching 50 years of age when the vigorous activities in which she engaged would, in any event, have assumed a less significant role in her lifestyle.

62 I assess the plaintiff's general damages for pain and suffering, past present and future and loss of amenity of life at $25,000 apportioned as to 60% for past pain and suffering on which is allowed interest at 5% for the period from injury to the present time.

$25,000 x 60% = $15,000 @ 5% for 6.8 years = $5,100.00.

A total for general damages including interest of $30,100.00.

63 Out-of-pocket expenses for medical, hospital and physiotherapy services is confined to the amount of $150 for physiotherapy. That sum is allowed.

64 The plaintiff makes no claim for wage loss but claims loss of overtime which she would have earned, absent injury, by comparison between her overtime earnings in 1993 as compared with those for the financial years ending 30 June 1994, 1995 and 1996.

65 Reliance is placed upon Exhibit "G" the New South Wales Police Service Extract from the plaintiff's wages record.

66 The arithmetical calculations submitted by the plaintiff are not contested, however, the plaintiff's entitlement to damages in this regard is an issue.

67 The plaintiff was on holiday in Queensland until the end of January 1994. At best her overtime loss for the financial year ending 30 June 1994 is limited to five months of the twelve month period, i.e. 5/12ths of the sum of $16,740 = $6,975.00.

68 The sum claimed for the financial year ending 30 June 1995 is $5,295.00. The total of these two sums is $12,270.00.

69 The figures provided in Exhibit "G" are gross figures before tax. No attempt has been made to place appropriate figures net of tax before the Court. Allowing 25% for tax produces a figure of $9,205.50 which must be reduced for adverse vicissitudes. I would allow the amount of $8,000.00. In arriving at this figure I note that in 1996 the plaintiff commenced a three year degree course at Sydney University in Health Science which she successfully completed in 1999. This course was undertaken whilst the plaintiff was engaged in full-time employment. I would allow no loss of overtime for 1996.

70 Exhibit "G" details 61.5 days of sick leave said to be referable to the plaintiff's fractured ankle during 1994 and 46.6 hours of sick leave similarly lost in 1995. The calculation of time lost at $105.9 per day and $15.13265 per hour respectively, produces a total figure of $7,218.03. Once again this is a gross figure and no attempt has been made to place before the Court any evidence of the appropriate tax rate for the plaintiff. However, allowing 25% for income tax the amount allowed is $5,414.00.

71 Loss of sick leave entitlements is a lost benefit and does not comprise monies of which the plaintiff has been deprived. No allowance for interest on the loss of this entitlement is applicable.

72 A claim is made for domestic assistance rendered by the plaintiff's sixteen year old son during 1994. The claim is for 3-1/2 hours per day for five days of the week and 6 hours per day for each day of the week-end, i.e. 23.5 hours per week, in which the plaintiff's son is said to have undertaken the household cooking, cleaning and ironing in addition to the outside work of lawnmowing and gardening which it is said, by the plaintiff, he normally carried-out.

73 The plaintiff's son did not give evidence and his absence was not explained. No evidence was called of appropriate rates for domestic assistance. The plaintiff's claim in this regard is in my view significantly exaggerated, however, I accept the need for some domestic assistance during periods of convalescence and would allow the amount of $2,000.00.

74 A claim is made for future analgesic medication. However, there is no evidence as to the cost of this medication and the plaintiff's evidence of frequency of use is quite imprecise. I would nevertheless allow an amount of $500 for future analgesic medication.

75 Summary of Damages

1. General damages (pain and suffering) past, present and future, including interest on past pain and suffering $30,100.00

2. Out-of-pocket expenses (physiotherapy) $ 150.00

3. Loss of overtime earnings $ 8,000.00

4. Loss of sick leave entitlement $ 5,414.00

5. Past domestic assistance $ 2,000.00

6. Future cost of analgesic medication $ 500.00
Total $46,164.00

76 Accordingly had the plaintiff been entitled to a verdict the assessment of damages would have been as appears above.

77 There will be judgment for the defendant. The plaintiff is to pay the defendant's costs. I note that in his judgment delivered 17 June 1999 on the motion seeking transfer of the hearing of the case to the Supreme Court of Queensland Justice Barr ordered the defendant to pay the costs of the motion in an amount to be agreed or assessed.

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Last Modified: 11/21/2000