McDonald v Australian Tourist Park Management Pty Ltd
[2013] NSWDC 201
•18 October 2013
District Court
New South Wales
- Amendment notes
Medium Neutral Citation: McDonald v Australian Tourist Park Management Pty Ltd & Anor [2013] NSWDC 201 Hearing dates: 18, 19 & 20 September 2013; close of submissions 14 October 2013 Decision date: 18 October 2013 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the plaintiff against each defendant in the sum of $299,965.70;
2. The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
3. On the cross-claim the first defendant is to pay 60 per cent of the plaintiff’s damages and the second defendant is to pay 40 per cent of the plaintiff’s damages;
4. No order as to costs of the cross-claims;
5. The defendants are to pay the plaintiff’s costs in the ratio 60 per cent by the first defendant and 40 per cent by the second defendant;
6. The exhibits may be returned;
7. Liberty to apply on 7 days notice if further orders are required.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: TORTS - negligence - occupier's liability - plaintiff injured when in darkness she stepped into a pothole on the unlit roadway of caravan park where she was a resident - whether inherent risk of injury - whether obvious risk of injury - whether breach of duty of care by defendants - whether contributory negligence on part of plaintiff - apportionment of liability between defendants; DAMAGES - assessment of claimed heads of damage Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5F, s 5G, s 5H, s 5I, s 15, s 16, Pt 1A, Pt 2, Pt 5
Evidence Act 1995, s 60
Limitation Act 1969Cases Cited: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Hackshaw v Hackshaw [1984] HCA 84; (1984) 155 CLR 614
Paul v Cooke [2013] NSWCA 311
Phillis v Daly (1988) NSWLR 65
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492
Reece v Reece [1994] NSWCA 259Category: Principal judgment Parties: Gloria McDonald (Plaintiff)
Australian Tourist Park Management Pty Ltd (First defendant)
The Trustee for the North Coast Accommodation Trust t/as The Moonee Beach Holiday Park (Second defendant)Representation: Mr K Andrews (Plaintiff)
Mr W Reynolds (First defendant)
Mr J Turnbull (Second defendant)
Monaco Solicitors (Plaintiff)
Lee & Lyons (First defendant)
McCulloch and Buggy (Second defendant)
File Number(s): 2012/146578 Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [4]
Issues
[5]
Array of witnesses
[6]
Credit
[7]
Factual findings
[8] - [76]
The premises and the relationship of the parties
[9] - [12]
Description of the roads within the premises
[13] - [17]
The plaintiff's background circumstances
[18]
Circumstances of the accident
[19] - [26]
Injuries
[27]
Medical treatment and assessments
[28] - [51]
Analysis of medical and allied opinions
[52] - [57]
Disabilities
[58] - [61]
Mitigation
[62]
Maintenance contract between defendants
[63] - [76]
Issue 1 - Whether claim statute barred
[77]
Issue 2 - Whether materialisation of obvious or inherent risk
[78] - [100]
Issue 3 - Whether breach of the duty of care owed
[101] - [127]
Issue 4 - Alleged contributory negligence
[128] - [137]
Issue 5 - Apportionment between defendants
[138] - [154]
Issue 6 - Assessment of damages
[155] - [190]
Probable life span of plaintiff
[156]
Non-economic loss
[157] - [162]
Past domestic assistance
[163] - [172]
Future domestic assistance
[173] - [182]
Future treatment expenses
[183] - [188]
Past out-of-pocket expenses
[189]
Summary of damages assessment
[190]
Disposition
[191]
Costs
[192]
Orders
[193]
Nature of case
By statement of claim filed on 8 May 2012, the plaintiff, Gloria McDonald, claims damages for personal injuries she sustained as a result of a fall at a caravan park where she was a resident, at Moonee Beach, NSW.
At about 10.00pm on the evening of Friday 19 March 2010, the plaintiff was walking across a bitumen roadway towards an unlit garbage bin storage area of the caravan park when one of her feet became caught in a large pothole located within the premises on the edge of the roadway known as Fourth Avenue.
The plaintiff claimed her fall occurred due to the negligence of the first defendant, Australian Tourist Park Management Pty Ltd ["ATPM"], as the manager of the premises responsible for maintenance of the roadway, as well as the negligence of the second defendant, the Trustee for the North Coast Accommodation Trust, trading as The Moonee Beach Holiday Park ["the MBHP"], as occupier of the premises.
The respective defendants each relied upon a series of defences based on alleged materialisation of claimed inherent and obvious risks, a denial of negligence, and in the alternative, alleged contributory negligence. The defendants have issued cross-claims against each other claiming just and equitable contribution from each other for any responsibility in respect of the damages due to the plaintiff. The provisions of the Civil Liability Act 2002 ["CL Act"] apply to these proceedings.
Issues
The issues for determination in these proceedings can be conveniently stated as follows:
Issue 1 - Whether the plaintiff's claim is statute barred;
Issue 2 - Whether the plaintiff's injury was due to the materialisation of an inherent or an obvious risk of injury within the respective meanings of s 5F, s 5G, s 5H and s 5I of the CL Act;
Issue 3 - Whether the defendants were in breach of the duty of care they respectively owed to the plaintiff so as to amount to negligence within the meaning of s 5B of the CL Act;
Issue 4 - Whether there was contributory negligence on the part of the plaintiff, and if so, to what extent;
Issue 5 - The respective proportions in which the defendants should bear responsibility for payment of any entitlement of the plaintiff to damages;
Issue 6 - The assessment of the plaintiff's entitlement to damages.
Array of witnesses
The oral evidence consisted of the testimony of the plaintiff, Ms Marie Erling, another resident of the caravan park, Ms Alicia Tilton, the regional operations manager of ATPM, the park managers, Mr Dean Scott who was employed by ATPM as a sub-contractor to manage the park, and Mr Gary Ellem, the business development manager of the Trust responsible for an entity known as the North Coast Accommodation Trust, which traded as the Mooney Beach Holiday Park ["MBHP"].
Credit
The credit of the plaintiff was not the subject of challenges. The plaintiff gave her evidence truthfully and I accept her evidence as reliable. I am also satisfied that all the other witnesses did their best to truthfully relate their evidence. The reliability of the evidence of those witnesses must be analysed according to its content and context.
Factual findings
In the paragraphs that follow, unless otherwise qualified, I set out my findings on matters of fact concerning the description of the premises, the relationship of the parties, the plaintiff's background circumstances, the circumstances of the accident, the plaintiff's injuries, matters arising from the medical treatment and assessment of the plaintiff, her remaining disabilities, matters of mitigation of damages, and the reporting and maintenance arrangements that existed between the defendants at the time of the plaintiff's injury.
The premises and the relationship of the parties
The premises where the plaintiff was injured are described as a coastal caravan park on the mid-north coast of NSW that catered for a mixed occupancy of residential on-site caravans as well as transient tourist accommodation. The premises included a series of connected roads between residential caravan sites and adjacent open grassed areas.
Although MBHP occupied the premises, it had contracted the management of the premises, including the day-to-day maintenance of the premises, to ATPM. The employees of ATPM regularly provided management reports to MBHP concerning the state of the premises. This included matters of repair, disrepair, and any significant works required to maintain the premises. The detail of those reports will be the subject of consideration of the plaintiff's claim that the defendants were negligent, and in relation to the issue of apportionment between defendants.
On 8 December 2004, the plaintiff and her husband entered into a residential site agreement entitling them to occupy a caravan site on the premises as permanent residents, pursuant to the terms of the agreement which they had signed.
As occupiers of the premises, each of the defendants owed a duty of care to the plaintiff, and to others in a similar position, to keep the plaintiff safe from foreseeable sources of harm that could be avoided by the exercise of reasonable skill and care as required by the circumstances: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479, at [11], following Hackshaw v Hackshaw [1984] HCA 84; (1984) 155 CLR 614, at [26].
Description of the roads within the premises
The bitumen surfaced roads within the premises had been deteriorating over time. This was due to the effect of a period of heavy rainfall, as well as from wear and tear from vehicular traffic, including from heavy garbage trucks. The plaintiff described the state of the roads as having started to worsen from about 6 months before her accident. I interpreted that evidence to mean it was at around that time she had started to notice such deterioration.
In the months that preceded the plaintiff's injury, heavy rains had washed away road base, which had been used to pack and fill potholes in the roads at various places within the roads of the caravan park.
The practice of ATPM was to regularly inspect the roads on the premises for wear and, when it was considered necessary to do so, road base mix was then obtained and used to landfill the potholes by shovel. However, over time, heavy rain and the effects of wear due to vehicular traffic continued to cause potholes to become washed out, and to then reappear after having earlier been repaired in the manner described above.
The plaintiff described those roads as having deteriorated over time, with the potholes becoming bigger in the months before her accident. The evidence disclosed that before the plaintiff's injury, MBHP had for some time been considering the implementation of plans for upgrading the bitumen seal on the roads.
The residential caravan site unit occupied by the plaintiff and her husband was located generally opposite the garbage bins in the park grounds.
The plaintiff's background circumstances
The plaintiff was born in 1940. She is presently aged 73 years. Since 8 December 2004, she and her husband have lived in retirement at the caravan park. Before incurring her injury, she was in good general health. In her retirement she enjoyed a physically active life and lifestyle. This included an active family life with her children, grandchildren and great grandchildren. Her four children have given her fourteen grandchildren and twelve great-grandchildren. For leisure, she regularly took scenic walks and picnics in the area where she lived, including what I infer were relatively demanding walks to a nearby coastal headland in order to pass the afternoon, watching migrating whales go by.
Circumstances of the accident
At about 10.00pm on the evening of Friday 19 March 2010, the plaintiff had walked down the concrete path leading from her caravan unit site towards the adjacent road. She was intending to cross the road in order to place a bag of garbage in the bins provided on the opposite side of the road for that purpose. There was no provision of artificial lighting in the area. On the night of the plaintiff's accident it was dark and there was no ambient moonlight. As she walked to the bins the plaintiff held a garbage bag in one hand and an illuminated flashlight in the other hand, to guide her way.
In those events, as the plaintiff neared the roadway she turned to her left to walk in the general direction of the bins and she then turned to her right as she intended to walk across the roadway towards the bins. In doing so, and unbeknown to her, she walked towards a large pothole located at the side of the roadway.
The projected beam of the plaintiff's handheld flashlight illuminated some of the ground ahead of her but it did not illuminate the pothole that was located on the edge of the roadway. That pothole extended from the gravel or grass verge on the side of the road and into the surface of the bitumen roadway as if the bitumen edge of the road had crumbled away. As a result of those circumstances, the plaintiff did not see the pothole in the darkness.
As the plaintiff continued to walk across the road, one of her feet became caught on the edge of the pothole and then went down into that pothole. She then fell and landed hard and face down on the hard road surface, thereby sustaining serious injury.
In those events, the plaintiff's glasses had fallen from her face. She felt blood pouring down her face. She stumbled and felt disoriented when she tried to stand up. She then called out to her husband for assistance. He arrived and helped her into a sitting position and wiped the blood from her face. In those events she felt her right knee was becoming increasingly swollen "like a football". An ambulance was summoned and she was then transported to Coffs Harbour Hospital for assessment and treatment.
The plaintiff's husband took a photograph of the pothole the following day. A copy of that perspective photograph, which appears at page 213 of Exhibit "B", is as follows:
A closer view of that pothole, which was measured to be approximately 18 inches across (T50.13), taken from page 197 of Exhibit "B", is as follows:
After the plaintiff's injury, the pothole in question was filled with road base mix on 22 March 2010, which was the day the plaintiff came home from hospital. The following copy of a perspective photograph taken from page 198 of Exhibit "B", shows the filled pothole at the side of the road appearing in the centre of the photograph as follows:
Injuries
In the fall, the plaintiff fell onto her face which struck the hard road surface. She injured her nose, she sustained abrasions to her forehead, her face and to both of her knees. She sustained a concussion as well as grazes to the palms of both of her hands. Her left knee became deformed in appearance and was swollen. Following x-rays being taken at hospital, she was found to have fractured her left patella in multiple places.
Medical treatment and assessments
In the ensuing paragraphs, I have extracted a chronology of the plaintiff's medical treatment and allied attendances that followed her fall.
After the plaintiff's arrival by ambulance at Coffs Harbour Hospital, x-rays showed that she had sustained a comminuted fracture of the left patella with associated haematoma in the subpatellar pouch. On the following day she underwent open reduction and internal fixation of her fractured left patella with the insertion of Kirschner cerclage wires performed by Dr Summersell, an orthopaedic surgeon. The plaintiff then remained as an in-patient at Coffs Harbour Hospital for 3 days until 22 March 2010. She was then discharged home with a leg splint and instructions for care of the external surgical wound clips.
On 24 and 29 March 2010, the plaintiff returned to the hospital fracture clinic for assessment. At that time it was noted that she was having ongoing knee pain.
On 1 April 2010, the plaintiff again presented to the fracture clinic at which time the 20 external clips to her surgical wound were removed from her left leg.
On 6 April 2010, the plaintiff again returned to the hospital fracture clinic for review and physiotherapy treatment.
On 3 May 2010, the plaintiff first consulted her general practitioner regarding her injuries. That day, she also returned to the hospital fracture clinic for review and for physiotherapy treatment.
On 17 May 2010, the plaintiff again returned to the hospital fracture clinic for further review and for physiotherapy treatment.
The plaintiff had used a wheelchair for mobility for the first 8 weeks following her discharge from hospital, and she then commenced using a walking stick. The plaintiff's treating physiotherapist had discouraged her from over-use of her walking stick because developing a dependency upon it was not in her best interests as this could adversely affect her non-injured leg due to possible over-use when weight bearing.
On 15 July 2010, the plaintiff became concerned that the cerclage wires in her left patella had become loose. As a result she presented herself to the Coffs Harbour Hospital fracture clinic. On that occasion it was recorded that she gave a history of 4 months of ongoing knee pain following the earlier wiring procedure. Some delayed fracture union was seen on x-rays taken at that time, and there was an unsuccessful attempt at aspirating the effusion of the left knee. Further rehabilitation was then suggested.
On 5 August 2010, the plaintiff again presented herself to the Coffs Harbour Hospital fracture clinic. On that occasion it was noted that she was using a walking stick and she was experiencing pain in the left patella when at rest. At that time it was also noted that she was unable to climb to the nearby headland as she had previously been able to do.
On 6 August 2010, at the request of her solicitor, the plaintiff underwent an occupational therapy assessment by Ms Carol Lausch. The report of Ms Lausch will be referred to in connection with damages assessment issues.
On 13 September 2010, the plaintiff presented to Coffs Harbour Hospital for surgery to her left knee but this was cancelled due to equipment malfunction. The precise details were not recorded in the hospital notes, but I infer from the circumstances that the intention at that time was to remove the cerclage wires that were later found to have broken.
On 8 December 2010, the plaintiff consulted Dr Summersell, her treating orthopaedic surgeon. He referred her for a CT scan of her left knee following a fall on the previous day.
On 10 December 2010, at the request of her solicitor, the plaintiff was examined by Dr James Bodel, a consultant orthopaedic surgeon, for the purpose of obtaining a medico-legal report for these proceedings. At that time, Dr Bodel reached only tentative conclusions in view of the presenting condition of the plaintiff's left knee. This was presumably due to a fall in the previous days.
On 13 December 2010, the plaintiff again presented to the Coffs Harbour Hospital fracture clinic complaining of the ill-effects of the fall that had occurred 1 week earlier.
On 30 December 2010, Dr Summersell saw the plaintiff to review her following her fall of 7 December 2010. He then wrote to the plaintiff's general practitioner advising that x-rays were required to assess whether the wires to the left patella had broken. He also raised the possibility that the plaintiff's presenting problems were being affected by osteoarthritis that was evident on x-ray examination.
On 31 December 2010, the plaintiff was admitted to Coffs Harbour Hospital for the removal of the Kirschner cerclage wires from her left knee under general anaesthesia. The indication for the procedure was that the wires had become broken. She was discharged home from hospital on the following day, 1 January 2011.
On 1 February 2011, Dr Summersell further reviewed the plaintiff. At that time, he predicted that over time, the plaintiff would experience deterioration of arthritic changes that were seen to have been evident in her left knee. Those arthritic changes had not been symptomatic before the subject accident.
On 5 April 2011, apparently at the request of her solicitor, the plaintiff was seen by Mr Bruce Petersen, a consultant clinical psychologist, for assessment. He concluded that the plaintiff was depressed and anxious due to her ongoing experience of chronic pain and a significantly altered lifestyle.
On 14 June 2011, at the request of her solicitor, the plaintiff underwent an MRI study of her left knee. The ensuing report from that study noted the healed operation. The presence of moderate osteoarthritis in the left patellofemoral joint and moderately advanced osteoarthritis in the tibiofemoral joint were noted, along with thinning of articular cartilage in the left knee, and the presence of a degenerative meniscal tear.
On 9 August 2011, at the request of her solicitor, the plaintiff was re-examined by Dr James Bodel for medico-legal purposes. Dr Bodel's conclusions will shortly be examined in connection with the other medico-legal opinions.
On 12 October 2011, at the request of the solicitor for the defendant, the plaintiff was assessed by Dr Anthony Smith, a consultant orthopaedic surgeon, for medico-legal purposes.
On 1 November 2011, at the request of the solicitor for the defendant, the plaintiff was assessed by Ms Sue Beaver, a consultant occupational therapist. The report of Ms Beaver will be referred to in the course of my assessment of the plaintiff's claim for damages for domestic assistance.
On 22 November 2011, at the request of her solicitor, the plaintiff was examined by Dr Tom Mastroianni, an occupational physician, for medico-legal purposes. He attributed the plaintiff's fractured left patella and osteoarthritis of the patellofemoral joint to the effects of the fall. He considered the plaintiff was a candidate for a total knee replacement surgery, and that she would need further medical management for her ongoing problems.
Analysis of medical and allied opinions
Before stating my findings concerning the plaintiff's injury-related disabilities it is necessary to analyse the relevant medical opinions tendered by the parties.
Dr Bodel's opinion focussed on the plaintiff's ongoing symptoms and treatment needs. He considered that further surgery was not required at the stage when he saw the plaintiff in August 2011. At that time, he expressed the hope that future surgery could be avoided: Exhibit "B", pages 144 to 145.
Dr Smith was of the opinion that when he saw the plaintiff in October 2012, she had pre-existing bilateral osteoarthritis in her knees. Without explicit reasons, he doubted whether the accident could be held entirely accountable for an anticipated future knee replacement procedure. He considered that the plaintiff's fracture "has healed not unreasonably well": Exhibit "1", report page 5. That confusing double negative expression was obscure and provided little in the way of understanding of the significance of the plaintiff's ongoing symptoms. Dr Smith's view of accountability did not represent the required legal test, which is that the defendants must take the plaintiff as she is found.
When Dr Mastroianni saw the plaintiff in November 2011, he considered the prognosis of the plaintiff's condition to be very guarded. He considered the plaintiff to be a candidate for future knee replacement surgery, the timing of which would be dictated by the severity of the plaintiff's symptoms : Exhibit "B", pages 1 to 5.
In considering the above range of opinions I consider that the opinion of Dr Mastroianni should be preferred to the opinion of Dr Smith. This is not only because the opinion of Dr Smith was unpersuasive as it was not supported by clear reasons, as was required by UCPR Sch 7 cl 5(c), but also because the opinion of Dr Mastroianni was based upon a more detailed history. I therefore consider that Dr Mastroianni's opinion is more likely to be apt and reliable in relation to the plaintiff's post-injury circumstances.
The opposing opinions of the occupational therapists retained by the parties will be examined where relevant in connection with the analysis of the claim made by the plaintiff for past and future domestic assistance.
Disabilities
As I am satisfied that the plaintiff gave truthful evidence about the extent of her injuries and her related complaints. I therefore propose to draw upon the medical reports for evidence of the plaintiff's post-injury difficulties, her treatment, and her ongoing disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995. My findings on those matters follow.
The plaintiff continues to experience ongoing pain, discomfort and restriction of movement in her left knee. The pain is made worse on flexing the knee. She finds she can only weight bear, walk or drive for relatively short distances without her knee becoming adversely affected by increased pain and discomfort. She has difficulty bending and reaching into cupboards. She cannot squat or kneel. She has difficulty walking outdoors on uneven surfaces, including on the beach, and when negotiating stairs, at which times she experiences a jarring sensation and shooting pains in her left leg. Her left leg swells intermittently. It occasionally gives way on her. She has sustained post-operative damage to a nerve in her left leg. She has surgical scarring to her left knee. She has reduced standing and walking tolerance. She is no longer able to pursue her favoured past time of daily scenic coastal walks to the nearby headland. She feels that as a result of her altered gait, her left hip is now affected.
The plaintiff's knee pains are worse at night and interfere with her sleep, leaving her sleep deprived. She suffers from headaches, lacks general motivation, and has suffered a diminution in her social life. She has lost her physical fitness. She faces the prospect of knee replacement surgery.
The plaintiff is nervous and fearful of falling because her knee now has a tendency to give way on her without warning when she weight bears on it, and it occasionally locks. She feels unable to hold her young great-grandchildren for fear of dropping them. She feels depressed, anxious, in chronic pain and when she reflects upon her former active self, she feels as if her life has been taken from her. At the hearing her upset at relating that evidence was clearly discernable. She now spends much of her time indoors being inactive. She is now dependent upon others to assist her with the more demanding of her household and domestic tasks, which was not the case before her injury.
Mitigation
The plaintiff pursued prompt medical, surgical and physiotherapy treatment. She has also been taking the appropriate prescribed medications. The defendants did not argue that the plaintiff had in any relevant way unreasonably failed to pursue mitigation of her claimed losses. Accordingly, there should be no finding that the plaintiff had failed to mitigate her damages.
Maintenance contract between defendants
Before dealing with the substantive issues calling for decision in the proceedings it is necessary to say something of the contractual, maintenance and reporting arrangements that subsisted between the defendants.
The arrangements for the maintenance of the premises were the subject of an agreement between the defendants dated 8 October 2003. Whilst the term of that agreement had expired, there was no dispute that the obligations of the parties that arose under that agreement had carried over beyond the expiration of the agreement: T7.4-9; T68.47-49; T98.22-24.
Clause 3.7.1 of the agreement required the manager to ensure, amongst other things, that all improvements, which I infer to include roads within the premises, be kept and maintained in a safe condition: Exhibit "B", Tab 18, p 255.
Clause 3.7.7 of the agreement required the manager to ensure, amongst other things, that any property on the park, which I infer to include roads within the premises, be repaired in a proper and workmanlike manner, for which purpose MBHP would provide and pay for the required materials as and when this was required: Exhibit "B", Tab 18, p 266.
The necessary plant, equipment, tools and materials for fulfilling those maintenance and repair requirements were on site. The evidence disclosed that road base used for filling potholes was readily available, as were the tools required to ensure this was done. ATPM also had available on site some simple safety materials comprising "witch hats" or safety cones, as well as orange coloured plastic safety mesh and star pickets that could be hammered into the ground for use with the safety mesh to highlight, cordon off or limit access to restricted areas, if required.
ATPM also had the ability to engage labour required for maintenance and repairs if outside labour beyond its own resources was required to fulfil any maintenance or safety obligations. For that purpose it had a delegated expenditure authority up to $2000 before it was necessary to obtain approval from MBHP: T128.25.
ATPM staff provided monthly managerial reports to MBHP. Those reports were based on observations of the premises made by ATPM staff who conducted daily inspections of the grounds and the roads within the caravan park. Those reports provided relevant details on maintenance and related issues to MBHP. Those details are extracted as follows:
Date
Maintenance Details
OH&S Details
Reference
July 2009
Roads need urgent replacement and potholes filled in
Roads as per maintenance ...
Exhibit "B", Tab 22, p 280
August 2009
Roads need urgent replacement and potholes filled in
Roads as per maintenance ...
Exhibit "B", Tab 23, p 284
September 2009
Roads need urgent replacement and potholes filled in
Roads as per maintenance ...
Exhibit "B", Tab 24, p 288
October 2009
Roads need urgent replacement and potholes filled in
Roads as per maintenance ...
Exhibit "B", Tab 25, p 291
November 2009
Roads need to be addressed as all the extra traffic over Christmas has caused more potholes and more wear and tear and the roads are looking really bad.
Main concern is the roads in 1st Ave
Exhibit "B", Tab 26, p 295
January 2010
Roads in 1st Ave need attention as is becoming hazard to guests we are cleaning up each day as it crumbles away, plus filling all the potholes ...
Filled and marked the areas of concern on the roadway in 1st Ave ...
Exhibit "B", Tab 27, p 300
February 2010
Roads in 1st Ave need attention as it is becoming a hazard to guests we are cleaning up each day as it crumbles away, plus filling in all the potholes ... Major road work need at bottom sites near 62-64 road washed away
Filled and marked the areas of concern on the roadway in 1st Ave
Exhibit "B", Tab 28, p 304
March 2010
Roads in 1st Ave need attention as it is becoming a hazard to guests we are cleaning up each day as it crumbles away, plus filling in all the potholes ... Major road work need at bottom sites near 62-64 road washed away ... We have filled all potholes and just waiting for Capital Works to start
Filled and marked the areas of concern on the roadway in 1st Ave, 2nd and 4th Ave.
Exhibit "B", Tab 29, p 308
After the plaintiff's fall, on 7 April 2010, ATPM forwarded a safety audit report to MBHP with regard to the caravan park. The safety audit report stated that the hazard which was described as requiring that "a(ll) roads need repairing as pot hole(s) are a major factor of our roads". This hazard was assessed as being of "high risk": Exhibit "B", Tab 30, p 320.
The assessment sheet of that safety audit report identified that the potholes were temporarily filled in, and that this was reported to ATPM and the Lands Department were to fix this, but no time frame was identified for this work: Exhibit "B", Tab 30, p 321.
The safety audit report dated 7 April 2010 also noted that the roadways on the premises were not free of potholes or other trip hazards: Exhibit "B", p 316. That report also asserted that the caravan park had been inspected to identify safety problems. The report also asserted that such problems had been fixed, or that the risks had been minimised, and that the detail of that work was recorded in the safety diary: Exhibit "B", p 313. The safety diary referred to in that report was not in evidence.
The safety audit report went on to identify the need for slippery when wet signs for the amenities block and laundry, as well as emergency evacuation signs for the assembly area and hazardous materials and flammable liquid signs: Exhibit "B", p 320.
It is plain that the potholes identified in the safety audit had been present on the site for some time before the plaintiff's injury. I infer from the audit report on the need for the described signage at the site, that it was well within the resources of the defendants to obtain and appropriately position safety items such as barrier mesh or "witch hat" cones adjacent to significantly potholed areas without necessarily obstructing the roadway whilst awaiting capital works to repair the roadways in the caravan park.
It would appear from the photographs and from the explanatory oral evidence, that at some stage after the plaintiff's accident, light poles had been erected at specific sites within the caravan park. The state of the evidence did not permit meaningful inferences to be drawn from those circumstances with regard to the liability issues in the case.
However, it is plain from the evidence of Ms Erling, who had been a resident of Third Avenue in the caravan park since 2006, that residents had been lobbying management for some time before the plaintiff's accident for some work to be done to address deterioration of the park, including the need to address potholes which were exacerbated by wet weather conditions. In fact some residents issued a petition to management urging rectification work be undertaken. The petition was not in evidence. In response, some of that work was undertaken some two or three years later, and before the plaintiff's accident: T60.20; T60.50 - T61.2.
Issue 1 - Whether claim statute barred
I find the claimed limitation defence is unavailable to MBHP because the plaintiff had only discovered the involvement of MBHP at the time when ATPM had issued its cross-claim against that entity, namely on 14 September 2012. It was the cross-claim that identified the involvement of the second defendant for the plaintiff, who then promptly joined that defendant within time.
Issue 2 - Whether materialisation of obvious or inherent risk
The first defendant, ATPM, pleaded a defence to the plaintiff's amended statement of claim in the following unparticularised terms:
"As to the whole of the plaintiff's claim, the First Defendant relies on the provisions of Part 1(a) (sic for Part 1A), Part 2 and Part 5 of the Civil Liability Act 2002 (NSW)"
The second defendant, MBHP, pleaded a defence to the plaintiff's amended statement of claim, in three component respects.
The first of those components of the defence asserted on behalf of MBHP was to the effect that the plaintiff's claim was statute barred pursuant to the provisions of the Limitation Act 1969. The second and third components of the defences by MBHP were based upon Part 1A of the CL Act, and in particular, the provisions of s 5G, s 5H and s 5I of that Act, which concerned alleged materialisation of obvious and inherent risks.
Those defences are considered in the paragraphs that follow.
Alleged inherent risk claimed by both defendants
Both defendants pleaded a defence of inherent risk within the meaning of s 5I of the CL Act.
An inherent risk is something that cannot be avoided by the exercise of reasonable care and skill: s 5I(2) of the CL Act. The defendants bear the onus of establishing a defence under that section.
The statutory definition of inherent risk within s 5I has been described as circular and ambiguous: Paul v Cooke [2013] NSWCA 311, at [61] to [67]. In that case, s 5I was characterised as being an unyieldingly prescriptive provision: [55]. As a threshold question, it is therefore necessary to determine whether that provision has any application to the facts of this case, particularly as the requirement that reasonable care and skill be exercised is not necessarily confined to the conduct of the defendants: [59].
Applying that discussion to the present case, there is no doubt that from time to time the roadway within the premises was affected by the presence of potholes. Those potholes were periodically repaired. Some of them reappeared as potholes again and were then re-repaired from time to time. The level at which the evidence was left, indicated that those circumstances involved generality and not specificity. In that regard, the evidence did not identify the particular potholes to which those maintenance practices of the defendants applied.
Specifically, on the facts of this case, it has not been shown on the balance of probabilities that at the time the plaintiff was crossing the roadway in question, she in fact specifically knew of the presence of the particular pothole in which she ultimately lost her footing and fell.
In those circumstances it cannot be said, in the required prospective analysis or a "forward-looking way", that the plaintiff was relevantly aware of an inherent risk of losing her footing in the pothole in question, or that when she lost her footing, this occurred due to the materialisation of an inherent risk: Paul v Cooke, at [66].
In my view, the activity of the plaintiff in walking across the road at night in an unlit residential caravan park would not ordinarily be seen as carrying with it the inherent risk of losing one's foothold when encountering a pothole in the roadway as it would be necessary to first establish that she knew of the presence of the particular pothole. This is especially so where the plaintiff was aware that there had been periodic maintenance work carried out on the roads in question, and where there were no warnings of the risks posed by the location of particular potholes, as distinct from potholes generally, which is more relevant to an analysis of alleged contributory negligence: s 5I(3) of the CL Act.
I therefore find that the plaintiff's injury was not caused by the materialisation of an inherent risk within the meaning of s 5I of the CL Act. Accordingly, the defence claimed pursuant to that provision of the CL Act has not been made out.
Alleged obvious risk claimed by both defendants
Obvious risk is defined in section 5F of the CL Act, which provides:
5F Meaning of "obvious risk"
(1) For the purposes of this Division, an "obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
A rebuttable statutory presumption of awareness of an obvious risk of harm arises as a result of the effect of s 5G of the CL Act, which provides:
5G Injured persons presumed to be aware of obvious risks
(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.
(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.
For the defendants to succeed on a pleaded defence of obvious risk, they must show that before her accident, the plaintiff would have known of the risk of falling onto the area adjacent to or on the edge of the pothole, as would a reasonable person in her position. I consider that this must mean that the defendants have to show that she had actual knowledge of the presence of the pothole in which she ultimately lost her footing and fell.
The defendants have not established that the plaintiff had the requisite state of knowledge of the existence of the particular pothole where she fell. Although the plaintiff knew the roads had deteriorated into a state of disrepair in the previous 6 months, the evidence did not suggest that the presence of that particular pothole was a matter or patent or common knowledge. On previous occasions the plaintiff had been out to the bins at night but on this particular night there was no moonlight. On the night of her accident, the pothole in question had not been illuminated nor had its presence been made apparent to her by the illuminating effect of the beam from her flashlight as she walked along her chosen pathway. In those circumstances the plaintiff was in no position to assess possible questions concerning the obviousness or otherwise of the risk posed by the presence of the pothole on the roadway.
Furthermore, although the statute provides that a risk can be obvious although the prevailing condition or the circumstances indicate the risk is not conspicuous or physically observable, as provided by s 5F(2), that provision has to be read in a reasonable context, which in this case, was the prevailing condition of darkness and a lack of knowledge on the plaintiff's part as to the location of the pothole.
In those circumstances of darkness, on the balance of probabilities, I am satisfied that the plaintiff was not aware of the risk posed by the pothole at the side of the road: s 5G(1) of the CL Act.
In this regard, on the facts I have referred to and found as stated above, I do not construe s 5G(2) of the CL Act, which refers to types or kinds of risk, to mean that the plaintiff was aware of the general nature, extent or manner of risk of injury from an encounter with the particular pothole in question.
In my view, a reasonable person in the position of the plaintiff, whilst keeping a proper lookout for her own safety, would be excused from not knowing of the existence of the particular pothole in question in the absence of a warning drawing her attention to its presence, and absent being able to see it in the prevailing conditions of darkness, even when using a flashlight.
I therefore find that the plaintiff's injury was not caused by the materialisation of an obvious risk within the meaning of s 5G of the CL Act. Accordingly, I find that the defence claimed pursuant to that provision of the CL Act has not been made out.
The respective defences also raised allegations of contributory negligence on the part of the plaintiff. Those allegations will be considered separately in connection with my consideration of Issue 4.
I now turn to consider the allegations of alleged breach of the duty of care owed by the respective defendants.
Issue 3 - Whether breaches of the duties of care owed
The plaintiff's amended statement of claim filed on 10 May 2013 particularised multiple allegations of negligence that can be conveniently condensed into the following formulations:
(a) Failure to provide lighting in the area where the plaintiff fell;
(b) Failure to regularly inspect the roadways within the caravan park for potholes and related failure to adequately maintain the roads and repair the potholes;
(c) Failure to respond to resident complaints about the condition of the roads in the caravan park;
(d) Failure to place warning signs, barricades and lighting around the potholes;
(e) Failure of the second defendant to act upon requests by the first defendant to rectify the potholes.
The question of whether or not the defendants were negligent in the circumstances under present review must be determined in accordance with the requirements of s 5B of the CL Act, which provides as follows:
5B General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
The three requirements of s 5B(1) of the CL Act concerning foreseeability, significance of risk of harm and the nature of the precautions a reasonable person would have taken in the circumstances, are satisfied in this case in respect of each of the defendants.
In that regard, in the circumstances of this case, a reasonable person in the position of the defendants would have foreseen that the pothole in question represented a relevant source of harm. This knowledge would have arisen from inspection, from the reports issued by ATPM to MBHP, and from the complaints of residents as to the condition of the roads: s 5B(1)(a) of the CL Act.
The risk of a pedestrian crossing the roadway coming to harm by stepping into the pothole at the edge of the roadway, in darkness, must be seen as being a risk that was "not insignificant": s 5B(1)(b) of the CL Act.
Furthermore, as the pothole in question was located within a residential caravan park that had no artificial lighting in that area, it seems inescapable that precautions ought to have been taken against the risk of harm occurring to someone such as the plaintiff falling when encountering a pothole in the described conditions whilst making reasonable use of the premises by walking across the roadway to deposit rubbish in the bins provided for that purpose: s 5B(1)(c) of the CL Act.
In addition to satisfying the requirements of s 5B(1) of the CL Act, the plaintiff must also satisfy the considerations required by s 5B(2) of the CL Act. For the reasons that follow, I consider that the plaintiff has satisfied those considerations in this case.
Where an unfilled, un-barricaded, un-isolated, unlit pothole is left in the roadway without any placement of warning signs or other devices of similar intent, in an area where it is foreseeable that pedestrians are likely to walk, there must be a significant probability that harm would be likely to be occasioned to pedestrians such as the plaintiff if reasonable care were not taken by the parties responsible for the maintenance and repair of the premises, to guard against such an occurrence. In this case, the exercise of reasonable care demanded either warning pedestrians of the defect, or by isolation of the defect, if not prompt repair by filling the pothole in order to remove the potential danger it posed to pedestrians such as the plaintiff: s 5B(2)(a) of the CL Act.
Where there is scope for a pedestrian such as the plaintiff to step into a pothole at the edge of the roadway, the prospect of such a person falling and sustaining serious bodily injury is plainly self-evident: 5B(2)(b) of the CL Act.
In those circumstances, the maintenance burden to the occupier of commercial residential premises such as a caravan park, in taking adequate precautions to avoid the risk of harm must be seen as being slight, and not representing a true burden in terms of prohibitive cost or effort to avoid the risk of injury to persons walking on or near the roadway within the premises.
In that regard, the defendants had ready access to road base mix for filling the pothole. The defendants also had ready access on the premises of "witch hat" type warning devices which could have been simply placed in or near the pothole, or star pickets and orange plastic warning mesh that could have been used to isolate the pothole or to draw attention to the position of it's location at the side of the road. The latter two options would have been readily seen when illuminated by the plaintiff's flashlight in a way that did not illuminate the pothole: s 5B(2)(c) of the CL Act.
There is a recognisable social utility in the occupiers, proprietors or managers of a residential caravan park providing residents with safe roadways on which to walk, including during the hours of darkness. There is no discernable social utility in leaving such areas in an unlit, uncovered and unsafe condition due to the presence of unfilled and un-repaired potholes resembling something of an obstacle course whilst waiting for a planned capital works programme to commence: s 5B(2)(d) of the CL Act.
On behalf of ATPM, Mr Reynolds argued that special considerations of maintenance applied to the premises as would be in keeping with "environmental considerations" appropriate to a beachside holiday resort: Phillis v Daly (1988) NSWLR 65, at p 68. It was argued that "ATPM took all reasonable steps to maintain the roads within the resort in a manner in keeping with the nature and the environment".
In my view that submission is misplaced and should not be accepted. The authority cited is distinguishable, as is plain from the judgment of Samuels JA at page 68, where the environmental considerations to which he referred, were the aesthetic factors that had their place in "the calculus of negligence" where precautions would have an adverse effect on the visual amenity of the area.
ATPM's submission under present consideration is entirely answered in this case by the remarks of Samuels JA at 68G - 69A, when speaking of the comparative difference between the placement of barrier logs as distinct from the contention for a fence to be erected:
"... It would not do to prefer the beauty of the uncaged tiger notwithstanding the carnage likely to be wrought by its unbridled appetite. But where the risk to be considered is small (as it was here) it is legitimate to take account, for example, of the unappealing character of the alternatives advanced by the judge: a "perhaps waist high or slightly higher cyclone fence" or "a smooth concrete fixture". However, I need not heed aesthetics. I am content to assume that the logs could have been replaced by some safe and suitable though uninspiring substitute. But in my opinion the chance of a visitor to the premises coming to grief in stepping on and over the logs was so slight as to require no precaution omitted by the occupiers."
That description is very far removed from the much higher risk in this case of pedestrians coming to grief when stepping into a roadside pothole in circumstances of darkness in a beachside caravan park which had a significant revenue stream from occupants and which attracted significant management fees.
On behalf of ATPM it was also argued that the plaintiff ought to have walked on "the grass side of the road" instead of electing to walk on the road. In my view that argument should not be accepted. The plaintiff had to cross the road to get to the garbage bins. The unguarded pothole was in line with those bins. Walking on the grass side of the road would not have relevantly kept the plaintiff safe from harm.
The further argument by ATPM that it had discharged its duty to the plaintiff by carrying out regular repairs and informing MBHP of the state of the premises must be rejected. Its duty went beyond merely informing MBHP of the condition of the roads. Its duty to effect repairs was insufficiently discharged in this instance in that the unfilled pothole was allowed to remain as a foreseeable source of harm to users of the caravan park.
In the circumstances of this case, I consider that the plaintiff has satisfactorily demonstrated that the defendants have relevantly breached the duty of care that they each owed to her. Those duties extended to the taking of reasonable care to ensure that pedestrian users of the roadway within the premises were warned of, and protected from, the danger posed by the presence on the premises of unlit, un-repaired and un-barricaded potholes on the roadway.
The breaches of that duty occurred and then continued when the defendants caused or permitted the pothole in question, and others, to remain in situ without placing warning signs, barricades, lighting or coverings for the protection of pedestrian traffic from a foreseeable source of significant harm from stepping into a pothole of significant size. In my view, those breaches of the duty of care owed compels the conclusion that the defendants were relevantly negligent.
It is no answer to say, as was argued on behalf of ATPM, that it had a reasonable system of inspection that resulted in filling potholes when they were found. That description was not fulfilled in this instance.
Accepting that there would have been some inevitable delay between a recognition of the need to effect a repair by filling the pothole, assuming it had been seen, it was unacceptable in the circumstances, to leave the pothole unguarded, unlit or un-barricaded pending the obtaining of the materials required for the pothole to be repaired. This is especially so where it was known that there was no lighting in the area and it was foreseeable that residents would seek to cross the road to obtain access to the garbage bins.
The decision of the second defendant to delay capital works, without in the meantime taking reasonable precautions to guard against the risk of injury to users of the caravan park, provides no excuse or defence to the plaintiff's claim, especially having regard to Mr Ellem's knowledge of the state of the premises, both from the reports sent by ATPM and from his own visits to the caravan park.
No particulars of a pleaded claim of defence available to public authorities pursuant to Pt 5 of the CL Act were presented or argued by MBHP.
Accordingly, I find that not only were the defendants negligent as claimed, but that were it not for such negligence, the plaintiff would not have been injured in the manner that occurred when she lost her footing and fell after stepping onto the edge of the pothole in the roadway: s 5B and s 5D of the CL Act.
The remaining liability issue between the plaintiff and the defendants that requires consideration is whether the plaintiff's injury was due to alleged contributory negligence on her part.
After the resolution of that issue, I will give consideration to the cross-claims that have been exchanged by the defendants.
Issue 4 - Alleged contributory negligence
The combined effect of the particulars of the alleged contributory negligence of the plaintiff as pleaded by the defendants is summarised as follows:
(a) Failure to take proper or reasonable care for her own safety;
(b) Failure to keep a proper lookout;
(c) Failure to exercise any care in the circumstances;
(d) Failure to pay proper attention to her surroundings;
(e) Failure to avoid an obvious hazard.
ATPM argued it must be assumed that the plaintiff had not used her flashlight properly to illuminate the way ahead as she walked towards the garbage bins knowing that there were potholes present on the road that she was crossing in darkness. Accordingly, it was argued that the alleged contributory negligence of the plaintiff should be assessed at 25 per cent.
For the reasons that follow, I consider that the defendants have not made good any aspect of the pleaded defences of alleged contributory negligence.
I consider that the plaintiff did take reasonable care for her own safety by taking a flashlight with her when she walked to the bins. I consider that the plaintiff had also acted reasonably in shining the flashlight ahead and looking ahead to the illuminated area to see where she was walking. She was justified in not walking on the grass because it was all uneven.
Contrary to the argument put against the plaintiff, to the effect that there was no explanation for her not seeing the pothole despite using a flashlight to illuminate the way ahead, in my view the plaintiff's inability to see the pothole in those circumstances is readily explained by the fact that the pothole was not easily seen and the beam from the flashlight did not light up the pothole as the plaintiff was shining her flashlight up ahead of her. Her evidence was that she shone the flashlight in the foreground and also ahead of her. That was a reasonable way for her to proceed in the circumstances.
The plaintiff's flashlight did not provide floodlighting to the area ahead. In my view, it is unremarkable that the plaintiff did not see the hole despite the use of a flashlight. The position would have been different if there was an upright structure standing proud of the level of the roadway, such as a "witch hat" in or near the pothole or some kind of mesh barrier at the side of the road which would have been highlighted by the beam of the flashlight.
The defendants have not established that the plaintiff knew of the presence of the pothole in question. Accordingly, she could not be taken to have been aware of the hazard posed by that pothole.
Given that the plaintiff took reasonable precautions for her own safety, it follows that the defendants have not proven that there was any contributory negligence on the part of the plaintiff.
Issue 5 - Apportionment between defendants
The defendants each seek a just and equitable contribution from each other in respect of their liabilities to the plaintiff for damages.
ATPM argued that MBHP was the owner of the caravan park, and as such was alone responsible for structural repairs and changes within the premises. ATPM invokes clause 3.7 of the contract between the defendants to argue that ATPM was not required to do more than effect temporary repairs to the road surface.
ATPM also argued that the monthly reports in evidence ought to have generated a more active response from MBHP, especially given the regular conversations between Mr Scott, Ms Tilton and Mr Ellem on a weekly basis, as described in the evidence in which complaints about the state of the roads in the caravan park were mentioned. This was also argued in the context of Mr Ellem having also walked around the resort with Mr Scott from time to time before the plaintiff's accident, including walking along 4th Avenue.
MBHP argued that ATPM was contractually obliged to maintain the roads within the caravan park and that the plaintiff's fall was as a result of ATPM's failure to meet that obligation, thereby attracting an argued finding that MBHP's reliance on ATPM for maintenance and lighting was through contractual delegation and should result in a verdict on MBHP's cross-claim against ATPM for 100 per cent contribution.
MBHP was the entity that had the capacity and the role of providing substantive works on the site.
I find that Mr Ellem was well aware of the poor state of all of the roads within the caravan park, and that this was so for some months before the plaintiff's injury. This awareness came from Mr Ellem's contact with Mr Scott, Ms Tilton, and from his own observations of the site from his regular weekly visits over a considerable period of time.
Despite that knowledge, MBHP took no substantive steps to rectify the potholed state of the roadways in the caravan park. I find that the products of the safety audit of the caravan park undertaken in February 2010 revealed longstanding safety problems which should have been acted upon earlier.
Whilst it was commercially understandable to delay major works to ensure appropriate administrative and planning steps were taken for the smooth progress of major remedial works, it was unacceptable to take no safety precautions for residents and users of the caravan park in the meantime.
Instead MBHP simply left it to ATPM to effect temporary repairs on an as need basis. To do so without ensuring that interim safety considerations were implemented was a significant breach of the duty of care owed by MBHP.
MBHP contends there was no expert evidence suggesting the roads were unsafe. In my view that contention is misplaced as expert evidence was not a pre-requisite for such a finding.
In August 2009, the operating report from ATPM to MBHP advised MBHP that there was a problem with potholes throughout the park that needed rectifying as soon as possible, also advising that customers were complaining constantly: Exhibit "C".
The December 2009 operating report from ATPM to MBHP advised MBHP that the condition of the roads had deteriorated even more over the Christmas period following heavy use and the effects of rain. The January 2010 report advised that the park managers were constantly cleaning up the road as it crumbled away and they were continuously filling potholes and "marking dangerous areas": Exhibit "2". Obviously, the area where the plaintiff had fallen had not been so marked at the time of her accident. On 17 February 2010, an email from Ms Tilton on behalf of ATPM to MBHP advised that park maintenance indicated the "roads are in average condition" with the edges having "cracked bitumen" and needing "to be scraped out for better drainage". The email stated that some OH&S issues needed to be "addressed asap": Exhibit "3".
It is plain from the pattern of communication between the defendants and from the lack of urgent remedial activity in response, that ATPM had limited capacity to undertaken major remedial works, and for whatever reason, MBHP chose to delay the required substantive maintenance and improvement works.
In assessing the respective causative culpabilities of the defendants in the circumstances described in the evidence, I consider that the following factors that must be weighed are determinative.
ATPM had the day-to-day exposure and understanding of the risk of pedestrian injury from potholes on the roadway because of its unfettered scope for regular inspections and walk around inspections that it was able to carry out on the site. In that regard, ATPM knew there was no lighting of the grounds at night, it knew that the bins had been placed in the vicinity of a potholed section of roadway such that the plaintiff, if not others, would be likely to walk in the area of the pothole in darkness. It also had the means by which to minimise the risk by filling the pothole whenever it reappeared, and it also had the ready physical means and the required labour to arrange appropriate placement of warning devices such as "witch hat" cones and isolating mesh, if not specific warning signs.
Whilst MBHP personnel were in receipt of regular monthly and other reports of the deteriorated condition of the roadways within the premises, no immediate arrangements or precautions had been taken by MBHP, or requested of ATPM, to minimise the risk of injury to pedestrians due to the presence of potholes. Instead, it sought to delegate its responsibility to ATPM and, in addition, it seems that a decision was made to delay the capital works that would have obviated the problem until a later time. It seems to me that in those circumstances MBHP must bear a significant responsibility for the plaintiff's injury, particularly as it delayed repairs on account of commercial considerations. It did so knowing of the content of the safety reports, and when its employee, Mr Ellem, made regular visits to the park in the course of his employment, he must have had some general appreciation of the need for rectification works
Balanced against those considerations, it was ATPM that had the more immediate day-to-day awareness of the potholed road and the need for regular inspections and repairs. It also had the immediate means at its disposal to put in place the "witch hat" cones and/or isolating mesh near the pothole in question to alert the plaintiff to the existence of a safety issue.
In weighing those respective culpabilities, I find that the day-to-day involvement of ATPM and the clear ability of that company to respond quickly in the face of a recognised safety problem serves to tip the balance away from equal culpability between the defendants in favour of a greater degree of culpability for ATPM as the cause of the plaintiff's injury: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; at [10]; s 5D of the CL Act.
In that regard, on the cross-claims for contribution, I find that the respective culpabilities of ATPM and MBHP should be borne in the ratio 60 per cent by ATPM, and 40 per cent by MBHP.
Issue 6 - Assessment of damages
In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages.
Plaintiff's probable life span
In assessing the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 73 years, the plaintiff has a rounded down probable median statistical life span of a remaining 16 years. The 5 per cent multiplier of 16 years is 579.5.
Non-economic loss
On behalf of the plaintiff it was submitted that her damages for non-economic loss pursuant to s 16 of the CL Act should be assessed at $160,500, which is the equivalent of 32 per cent of a most extreme case according to the provisions of s 16 of the CL Act.
After 1 October 2013, the s 16 rates were increased by indexation. The amount for 32 per cent was increased to $165,500. On behalf of the plaintiff it was submitted that an assessment of 32 per cent of a most extreme case already took into account an appropriate discount due to the plaintiff's advanced age: Reece v Reece [1994] NSWCA 259, at [5].
In contrast, on behalf of the defendants it was submitted that those damages should be assessed at 27 per cent of a most extreme case, which under the current regulation is the equivalent of $55,000.
In assessing this head of damage, I have had regard to my findings as to injury and subsequent treatment at paragraphs [27] to [57], and to my findings as to the plaintiff's ongoing disabilities at paragraphs [58] to [61].
Those matters have had a significant deleterious effect on the plaintiff's life and the amenity of her life. She is no longer physically active. She is substantially restricted in her activities. The effects of her injuries blight all of her activities. She is depressed and she is psychologically affected in an adverse way. She faces the prospect of significant surgery in the form of knee replacement. Her statistical median life span of 16 remaining years is a long time over which to carry her burdensome disabilities. Her remaining years would have been entirely different but for the effects of her injuries from the subject accident. I consider the defendant's submission of 27 per cent of a most extreme case to be manifestly inadequate having regard to the above matters.
In those circumstances, after making due allowance for the effect on such damages as is required by the decision in Reece v Reece, I consider that the appropriate assessment of non-economic loss damages is 30 per cent of an extreme case pursuant to s 16 of the CL Act, which is the equivalent of $127,000. I therefore assess the plaintiff's damages for non-economic loss in the amount of $127,000.
Past domestic assistance
On behalf of the plaintiff it was submitted that she should be awarded damages for past domestic assistance in the assessed sum of $43,170.72. That submission was based on assumptions as to 11 hours of care per week for the first 11 weeks, and then 9 hours of care per week over the remaining period until the time of the trial.
In contrast, the defendants submitted that no damages should be awarded for past domestic assistance as the evidence indicated that the statutory threshold for such damages, namely 6 hours per week for 6 months, had not been reached. Alternatively, the defendants submitted that the value of past domestic assistance provided to the plaintiff is best assessed according to the bottom end of the range of the plaintiff's own estimate of 6.5 hours per week of such assistance.
In my view, the medical and allied evidence provides little useful insight into the plaintiff's claim for domestic assistance.
In his report dated 22 November 2011, Dr Mastroianni considered that the plaintiff would need domestic assistance indefinitely in connection with all activities requiring bending, squatting and lifting. He estimated the need for 4 hours per week just for cleaning the bath, mopping, changing the bed linen and for the washing. That view was not prescriptive and did not refer to all required tasks in which the plaintiff required assistance.
In her report dated 6 August 2012, Ms Lausch estimated the incidence of the plaintiff's need for past domestic assistance and assistance with transport at 11 hours per week.
In contrast, Ms Beaver suggested assistance between 2.5 to 3 hours per week: Exhibit "1", p 15.
Notwithstanding the views of those experts, I consider that the evidence of the plaintiff offers the most useful and reliable insight into her level of need for past, present and future domestic assistance: Coles Supermarkets Australia Pty Limited v Haleluka [2012] NSWCA 343, at [55].
The evidence concerning the incidence of past domestic assistance is not amenable to precise analysis as to differential periods, as was submitted on behalf of the plaintiff. Instead, I consider that a broader and averaged approach is called for on an acceptance of the plaintiff's evidence of the assistance she has received, which I assess as having been between 6.5 and 8 hours per week.
Accordingly, I do not accept the submission that the threshold for damages under s 15 of the CL Act has not been reached in this case. Instead, I find that the plaintiff has received an average of at least 7 hours per week of such assistance as a result of her injuries and her disabilities, and assistance at that level has continued until the time of the trial. I therefore propose to assess those damages at 7 hours per week.
In the Appendix to these reasons, the calculation of the value of 7 hours of care per week, costed at the maximum not to be exceeded rate as specified by s 15 of the CL Act, between 20 February 2009 and 27 August 2013, is quantified in the sum of $33,542. I therefore assess the plaintiff's damages for future domestic assistance in the amount of $33,542.
Future domestic assistance
On behalf of the plaintiff, a claim was made for future paid domestic assistance in the amount of 9 hours per week at the rate prescribed by s 15 of the CL Act, namely the projected and undiscounted sum of $134,935.49. In contrast, on behalf of the defendants, it was submitted that no allowance should be made for future domestic assistance.
In support of the claim for future domestic assistance, the plaintiff relied upon the report of Ms Lausch, who estimated that need at 9.25 hours per week: Exhibit "B", p 179.
In contrast, the defendants relied upon the report of Ms Beaver dated 1 November 2012, which was to the effect that the plaintiff's need for future domestic assistance would be of the order of about 3 hours per week: Exhibit "1", p 16.
I consider the opinions of the occupational therapists and the medical evidence to be of very limited assistance in quantifying the plaintiff's need for future domestic assistance in this case.
Instead, as with the claim for past domestic assistance, at paragraph [171] above, I accept the plaintiff's evidence of between 6.5 hours and 8 hours per week for continuing domestic assistance.
I therefore propose to project the value of a middle range figure of 7 hours of domestic assistance per week over the plaintiff's probable remaining years.
The projection of the value of 7 hours per week at $27.03 per hour or $189.21 per week, at 5 per cent over 16 years (x 579.5) yields the undiscounted sum of $109,647.
I consider that sum should be discounted for several reasons. First, the plaintiff had a degree of pre-existing albeit asymptomatic osteoarthritis in her knees before her accident. She is therefore vulnerable to also developing symptoms in her right knee, in part due to advancing age and in part due to altered gait following the accident in question. An allowance must be made by way of discount for possible non-accident related causes of a need for domestic assistance. Secondly, some discounting allowance must be made for possible alleviation or improvement in symptoms following future knee replacement surgery, which may or may not be successful.
In view of the plaintiff's age, I consider that a discount of 10 per cent would be an appropriate allowance on account of those factors. The amount of $109,647, when discounted by 10 per cent, yields the sum of $98,682.
I therefore assess the plaintiff's damages for future domestic assistance in the amount of $98,682.
Future treatment expenses
On behalf of the plaintiff it was submitted that the plaintiff's award for damages for future treatment should be assessed in the sum of $76,75145, comprising some six components of calculation. In contrast, on behalf of the defendants, it was submitted that those damages should be assessed globally, in the range of between $2000 and $5000.
The evidence in support of the claim for future treatment expenses comes from the report of Dr Mastroianni, whose opinion I accept. He has identified the cost of knee replacement surgery as being of the order of $30,000 including ancillary expenses for hospitalisation and rehabilitation.
The state of the evidence does not permit a precisely reasoned estimate of the likely cost of other ancillary treatment or the timing of such treatment, although given the plaintiff's age and increasing level of discomfort, it seems that this surgery is more likely to occur sooner rather than later. Given the uncertainties involved, I consider that the award of a buffer sum would seem to be the most appropriate method by which to compensate the plaintiff for this head of damage.
That buffer sum should compensate the plaintiff for ongoing medical, pharmaceutical and specialist treatment before any future knee replacement surgery, the cost of such surgery and ancillary expenses, as well as the cost of ongoing intermittent general practitioner and specialist consultations for review, physiotherapy, medications and psychological support. In assessing that buffer sum, I have taken into account that the knee replacement surgery may be deferred for up to several years.
In the circumstances, I consider that, a reasonable buffer allowance for this head of damage to cover the cost of those expenses would be the sum of $40,000.
I therefore assess the plaintiff's damages for future treatment in the buffer amount of $40,000.
Past out-of-pocket expenses
The parties have agreed that the plaintiff's out-of-pocket expenses were in the amount of $741.70. I therefore assess the plaintiff's damages for out-of-pocket expenses in the amount of $741.70.
Summary of damages assessment
My assessment of the plaintiff's damages is summarised as follows:
(a) Non-economic loss
$127,000
(b) Past domestic assistance
$33,542
(c) Future domestic assistance
$98,682
(d) Future treatment expenses
$40,000
(e) Past out-of-pocket expenses
$741.70
Total
$299,965.70
Disposition
The plaintiff has made out her case for damages. She is therefore entitled to a verdict and judgment to be entered in her favour for a damages assessment of $299,965.70. On the cross-claims, the responsibility for the plaintiff's damages is apportioned to be 60 per cent by ATPM and 40 per cent by MBHP.
Costs
As the plaintiff has been successful in the proceedings, she should have her costs paid by the defendant on the ordinary basis, unless a party can show an entitlement to some other order. As each defendant is substantially responsible for the plaintiff in damages, there should be no order for costs on the cross-claims.
Orders
I make the following orders:
Verdict and judgment for the plaintiff against each defendant in the sum of $299,965.70;
The defendants are to pay the plaintiff’s costs of the proceedings on the ordinary basis unless otherwise ordered;
On the cross-claim the first defendant is to pay 60 per cent of the plaintiff’s damages and the second defendant is to pay 40 per cent of the plaintiff’s damages;
No order as to costs of the cross-claims;
The defendants are to pay the plaintiff’s costs in the ratio 60 per cent by the first defendant and 40 per cent by the second defendant;
The exhibits may be returned;
Liberty to apply on 7 days notice if further orders are required.
APPENDIX
CALCULATION OF VALUE OF PAST GRATUITOUS DOMESTIC ASSISTANCE / CARE ACCORDING TO THE CIVIL LIABILITY ACT 2002, s 15
(7 hours per week between 22 March 2010 and 18 September 2013)
PERIOD
WEEKS
WEEKLY
s.15 RATE
HOURLY
s.15 RATE
AMOUNT FOR
7 HOURS PER WEEK
1.
22.03.2010 to 21.05.2010
08.57
$989.90
$24.74
$1484.15
2.
22.05.2010 to 20.08.2010
12.85
$986.90
$24.67
$2219.06
3.
21.08.2010 to 19.11.2010
12.85
$985.50
$24.63
$2215.46
4.
20.11.2010 to 18.02.2011
12.85
$996.40
$24.91
$2240.65
5.
19.02.2011 to 20.05.2011
12.85
$1025.90
$25.64
$2306.31
6.
21.05.2011 to 19.08.2012
12.85
$1026.00
$25.65
$2307.21
7.
20.08.2012 to 18.11.2011
12.85
$1027.10
$25.67
$2309.01
8.
19.11.2011 to 17.02.2012
12.85
$1016.30
$25.40
$2284.73
9.
18.02.2012 to 19.05.2012
12.85
$1054.70
$26.36
$2371.08
10.
20.05.2012 to 16.11.2012
25.71
$1054.50
$26.36
$4744.00
11.
17.11.2012 to 17.05.2013
25.85
$1081.20
$27.03
$4891.07
12.
18.05.2013 to 18.09.2013
22.00
$1081.20
$27.03
$4162.62
TOTAL
$33,542.35
**********
Amendments
21 October 2013 - Slip Rule amendment - Decision orders modified and omitted text added
Amended paragraphs: Coversheet
Decision last updated: 21 October 2013
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