McDonald v Moama Bowling Club Limited

[2008] NSWDC 230

CITATION:	McDonald v Moama Bowling Club Limited [2008] NSWDC 230
HEARING DATE(S):	16-17 September 2008
EX TEMPORE JUDGMENT DATE:	23 September 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1 Verdict and judgment for the plaintiff in the sum of $302,158.14. 2 The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 6 August 2008 and on an indemnity basis thereafter. 3 The exhibits will be retained for twenty eight days.
CATCHWORDS:	TORT - slip and fall on stairs in Bowling Club - negligence where stairs met Building Code requirements - contributory negligence - assessment of damages for 80 year old plaintiff
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Reece v Reece (1994) 19 MVR 103
PARTIES:	June Alice McDonald - Plaintiff Moama Bowling Club Limited - Defendant
FILE NUMBER(S):	Albury File 134/07
COUNSEL:	B D Dooley SC-J G Stewart - Plaintiff N J Polin - Defendant
SOLICITORS:	Harris Lieberman - Plaintiff Curwoods Lawyers - Defendant

JUDGMENT

1 June Alice McDonald, then aged seventy-six, went to the Moama Bowling Club for Christmas lunch on 25 December 2004. She had not been to the club on any previous occasion. She was accompanied by her husband, her daughter Deborah Ryan, her son-in-law and her two grandchildren.

2 They arrived at twelve noon for the first luncheon sitting at the club. Having eaten, the plaintiff stood to leave. She decided to attend the toilet before leaving. This required the plaintiff to walk a short distance from her table and descend a flight of three steps. She fell on these steps and suffered significant injury to her right upper arm and shoulder. Her right arm is immobilised. She is right hand dominant.

NEGLIGENCE

3 The plaintiff claimed that she fell because she did not see the steps on approach. She claimed that the defendant was responsible for her fall on a number of bases summarised as follows:

1 Failing to warn her of the presence of the stairs.

2 Providing lighting that was inadequate or switching off the lights.

3 The absence of a visible handrail to alert her to the presence of the stairs.

4 Allowing her view of the stairs to be obscured by the presence of too many patrons in the vicinity of the stairs and the positioning of dining tables close to the stairs.

4 The defendant denied that it was in breach of its duty to the plaintiff. It claimed that it was absolved from liability by the provisions of ss 5B, 5F and 5I of the Civil Liability Act 2002. Alternatively the defendant claimed significant contributory negligence on the part of the plaintiff.

5 Evidence that was not in dispute established the following.

6 Christmas Day was a very busy day at the Moama Bowling Club. In order to cater for all of the persons wishing to dine there, it was necessary to arrange two luncheon sittings.

7 The Jubilee Room was set up for this purpose. This room occupied three levels. Patrons entered at the first level. A number of short staircases led to the second level where the plaintiff dined. The third level normally used as a dance floor was accessed by further short staircases. In addition, there was a stage at one end of the room, used in ordinary circumstances by bands and entertainers.

8 There was in evidence a report of Mr Dohrmann marked as exhibit O which contained a number of photographs of the staircase involved in the plaintiff’s accident. Mr Dohrmann reported that the stairs complied with the requirements of the Building Code of Australia in respect of dimensions. One handrail was provided on the right hand side of patrons as they descended the stairs that also complied with the Building Code of Australia.

9 Metal strips were positioned at the edge of the nosings of each step. Lights were positioned in the wall adjacent to each step on the left hand side of descending patrons.

10 The plaintiff, in her evidence, stated that changes had been made to the steps between 2004 and 2007 when the photographs were taken. There was evidence from Mr Evans, a former employee of the club, that no changes had been made.

11 This basically unchallenged evidence leads to the following factual findings:

1 There was no evidence of changes to the Jubilee Room or the various staircases between 25 October 2004 and September 2007 when the photographs in the Dohrmann report were taken.

2 I accept the plaintiff’s evidence that she did not see the staircase leading from the second level of the Jubilee Room to the dance floor. I find that this was the cause of her fall.

3 The staircase upon which the plaintiff fell complied with the technical requirements of the Building Code of Australia .

4 In determining the issue of negligence, it is necessary that the plaintiff persuade me that the defendant did not take reasonable precautions against the foreseeable risk that the plaintiff might suffer harm when using the staircase on which she fell.

12 The defendant relied upon the evidence in the Dohrmann report that the stairs complied with the Building Code requirements, that the photos indicated a high level of visibility of the stairs, and the absence of evidence of a history of falls or accidents involving the staircase. It argued that the risk was obvious and inherent and urged that I take account of the plaintiff’s concession that she would have seen the stairs had she been looking.

13 Notwithstanding these factors to which the defendant pointed, I have concluded that on 25 December 2004 the defendant did not manage the premises appropriately and did not take reasonable precautions to protect the plaintiff against that risk of harm for the following reasons:

14 The capacity to see the staircase was important in alerting a patron to the need to descend the stairs and ascend a staircase on the other side of the room in order to access the toilets. Without that view a patron might be excused for expecting to access the toilets on the same level, or at most by using one ascending staircase.

15 There were three features present on that day that had the potential to affect the plaintiff’s capacity to appreciate the presence of the stairs on which she fell. They were the lighting of the premises; the numbers of persons in the premises; and the arrangement of the dining tables.

16 In respect of lighting conditions, Mr Evans, the former functions coordinator for the defendant, agreed that controls for the Jubilee Room allowed adjustments to be made to the lighting provided in the room. These controls allowed the lights to be dimmed as necessary to set a particular mood and for persons on the stage to be spot-lit.

17 The plaintiff said the lighting in the area where she had lunch was dull or delicate. Her daughter, Mrs Ryan, said that it was soft and romantic and not bright. Mr Smith, an apparently independent witness, said the lighting in this area was reasonably bright.

18 All agreed that the area of the dance floor was in darkness and that a piano player providing entertainment on the stage was in spotlight.

19 The plaintiff claimed not to have seen the metal strips on the nosings of the steps or the wall lights. She stated that the area of the stairs was dark.

20 Mrs Ryan went to the plaintiff’s assistance after the fall. She said the stairs were in darkness to the point where she travelled down them sideways until she was able to hold onto the handrail.

21 Mr Smith saw the plaintiff fall and went to her assistance. He jumped down the steps because he said this was a quicker way to descend them. He described the steps as reasonably dark and in shadow but said he had no difficulty seeing them.

22 He also described shadows cast by lighting that rendered him unable to see the plaintiff’s face when he first attended to her on her right hand side. In order to provide assistance to her, he was required to move to her opposite side.

23 Mr Smith was unable to state if the brass strips were in position on the nosings on 25 December 2004 because he said his attention was focused on the plaintiff and he did not pay attention to the strips.

24 Mrs Ryan similarly said that she did not see the metal strips and that in the dim lighting prevailing at the time she thought the strips were made of rubber.

25 In relation to crowding, the plaintiff said that as she and her family stood to leave, a number of other patrons also started to move because it was necessary to make way for the second sitting. As a consequence, her view of the steps was obscured by these other patrons. She said she had been looking ahead and down, but nevertheless she walked through a gap in the crowd of patrons thinking that she would step onto carpet. Instead she encountered open air and she fell.

26 Mrs Ryan also stated that there were a number of other persons in the area. She said that when she ran to the plaintiff’s assistance after her fall she had to run around them and it was not until she had moved around them that she realised that there were steps present.

27 Mr Smith, qualified in first aid, said that he saw the plaintiff fall from his position at a table adjacent to the balustrade. He said he stood from his table and moved to the top of the stairs and jumped to the foot of them. His recollection was that there were not large numbers of persons in the area of the stairs and that he was able to access and jump down them without obstruction.

28 Photographs provided in the Dohrmann report showed that the dining room tables in the Jubilee Room in September 2007 were set up in a formation that allowed ten persons to be seated at tables that were placed at right angles to the wall on that side of level two that was furthest from the dance floor. This provided for passageways for persons to walk between the tables and the balustrade that topped the waist high wall separating level two from the dance floor. Persons using this passageway were therefore provided with a view of a distinctly different lower level and of the point at which the balustrade turned at a ninety degree angle and became the banister for the stairs leading to the dance floor.

29 This point was described by counsel for the plaintiff as a visual clue to the presence of the stairs and of the need to use those stairs to access the toilets on the far side of the room.

30 On 25 December 2004, the tables were arranged so that six persons could be seated at tables that were placed against the wall on that side of level two that was furthest from the dance floor. Tables for two persons were set up against the opposite wall. This provided space for persons to walk between the two rows of tables.

31 The effect of this arrangement was that persons walking between the tables did not have an immediate view of the lower level dance floor which, on that day, was in darkness, or the visual clue to the stairs provided by the ninety degree turn of the railing.

32 Photograph 5.8 in the Dohrmann report provided unchallenged evidence of the position of the table closest to the stairs on 25 December 2004.

33 Mr Smith said that he was seated at the second table from the staircase against the railing overlooking the dance floor. The defendant relied on his evidence that he was able to see the stairs and able to see the plaintiff at the top of the stairs when she fell.

34 This reliance, in my view, overlooked the obvious point that he was seated against the balustrade overlooking the dance floor and that he had a direct view of the short flight of stairs leading to it.

35 His evidence was that his view at the start of the plaintiff’s fall was across the shoulder of the person seated at the table closest to the stairs.

36 In respect of this material, I make the following findings:

1 I accept that any staircase presents an obvious and inherent risk to a user who does not take care for his or her safety.

2 I accept the principle of which I was reminded by the defendant, that it was not required by law to take steps to guard against any risk of injury to the plaintiff.

3 I find that the dimming of the lights in isolation did not generate a requirement that the defendant take any further step to protect the plaintiff from the risk of harm. It was a reasonable step for it to take to create an atmosphere appropriate to the occasion.

4 There was no evidence that the numbers of patrons in the Jubilee Room at the time of the plaintiff’s fall in isolation generated a requirement that the defendant take any further step to protect the plaintiff from the risk of harm.

5 I find that the defendant did create a risk that persons such as the plaintiff would not be alerted to the presence of the stairs when it placed tables against the wall and the balustrade adjacent to the dance floor. This step, coupled with the fact that the dance floor was in darkness, reduced the capacity of persons unfamiliar with the premises to appreciate the difference in levels in the two parts of the room. The position of a table at the top of the staircase in particular obscured the view of the staircase and its banister and further reduced the capacity of persons unfamiliar with the premises to sight the presence of the staircase and to appreciate the need to use the staircase when walking towards the toilet.

6 Notwithstanding Mr Smith’s evidence that the area at the top of the stairs was not particularly crowded, the defendant accepted that it was probable that there were a number of persons in that area and that it was necessary for the plaintiff to step through them. Thus I find that the presence of persons in that area further obstructed the plaintiff’s view of the stairs.

7 The defendant’s heavy reliance on the plaintiff’s concession that she would have seen the stairs had she been looking, in my view, was misplaced. The plaintiff made this statement in a context where she was shown a photograph of stairs that was contained in the Dohrmann report. This photograph was taken in a fully-lit room without the presence of persons or tables as set up on 25 December 2004. In addition, the plaintiff stated both before and after she made this statement that she did indeed look down but she did not see the stairs because of the presence of persons in that area. I accept that part of her evidence.

8 Ultimately I have reached the conclusion that, acting reasonably to prevent a foreseeable risk, the defendant ought to have ensured that the open view of the staircase afforded by the manner in which the Jubilee Room was designed remained available to persons in the room. In placing tables against the balustrade at the top of the staircase, the defendant failed to take reasonable precautions against the risk. As already stated, this conduct, coupled with the lighting conditions and the number of persons in the room, combined to create the risk that was the cause of the plaintiff’s fall.

9 I find the defendant in breach of its duty of care and liable to the plaintiff for the damage that she suffered as a consequence of her fall.

CONTRIBUTORY NEGLIGENCE

37 In respect of contributory negligence, having reached the conclusion that the defendant’s negligence put the plaintiff in a position where she was not alerted to the presence of the stairs, I do not consider that she failed to take reasonable care for her own safety in not seeing those stairs. I therefore make no finding of contributory negligence.

DAMAGES

38 In assessing the plaintiff’s damages, I note that no medical evidence was relied upon by the defendant and the following is a summary of the opinions of the plaintiff’s medical advisers which was unchallenged and is therefore accepted.

39 After the fall the plaintiff was taken by ambulance to Echuca Hospital where an X-ray indicated fractures of the greater tuberosity of the right humerus with slight displacement and an undisplaced fracture of the surgical neck of the humerus.

40 The plaintiff was admitted, treated and discharged on 28 December 2004.

41 Although the fractures healed with time, the plaintiff has continued with severe pain in her right shoulder and arm region with very limited mobility in the shoulder and minimal capacity in the use of the right arm.

42 Pain management originally was provided by way of medication and physiotherapy was provided in an attempt to restore some degree of movement to the right shoulder.

43 Mr Byrne, orthopaedic specialist, in August 2005 diagnosed adhesive capsulitis resulting from a significant tear in the supraspinatus and retraction of the tendon. He was concerned that the damage might be irreparable.

44 An arthroscopy was undertaken by Mr Byrne in January 2006. He reported that initially the plaintiff’s pain levels were reduced and that with physiotherapy her capacity for movement improved and he expected that there would be further improvement.

45 In June 2008, Mr Byrne reported on a deterioration in the plaintiff’s capacity for movement of her arm with continuing significant pain. At this time he diagnosed a vascular necrosis associated with the right humeral head that was the result of the shoulder fractures. He recommended shoulder replacement surgery in order to reduce pain levels while expressing a lack of optimism that improvement in movement would be achieved.

46 The plaintiff also consulted Professor Marshall who confirmed that the plaintiff remained with significant restrictions in movement and pain levels, forcing her to rely upon medication for pain relief.

47 He confirmed Mr Byrne’s diagnosis and he adopted his recommendation for shoulder replacement surgery.

48 The defendant conceded that the plaintiff had suffered a serious injury and accepted the requirement for the shoulder replacement surgery. It contended that the assessment of the plaintiff’s non-economic loss, domestic care needs and medical expenses should take into account the plaintiff’s age and her pre-existing medical condition.

49 In this respect, the evidence was that immediately prior to the accident at the age of seventy-six, the plaintiff was fully active and independent. She was maintaining her own home which she shared with her husband. Her activities involved daily gardening, table tennis once a week, and a daily walk with her daughter Karen. The plaintiff maintained her driver’s licence and drove regularly. She attended her local club once a week and danced occasionally.

50 The plaintiff stated that her medical conditions at the time were cataracts for which she had been treated and hypertension.

51 Her general practitioner at the time, Dr Lok, and the medical notes of his practice, indicate that the plaintiff was also suffering from hypothyroidism and complex partial seizures.

52 The plaintiff was medicated in respect of the seizures having sought specialist advice, and the clinical notes indicated that by October 2004, there was some improvement in her condition with this medication.

53 The defendant drew my attention to the medical notes indicating that the plaintiff suffered a fall towards the end of November 2004. The plaintiff did not remember this fall, denying that it occurred. I accept from the records that such a fall did occur but in the absence of medical evidence from the defendant to suggest that it was of significance to the assessment of her claim relating to the condition of her right shoulder, I have not taken this material into account.

54 I proceed to assess the plaintiff on the basis that at the time of the accident, as might be expected, she suffered from some background age-related health problems but that she remained active and independent.

55 The plaintiff is now aged eighty. She complained of significant pain. She held her right arm immobilised at the right side of her body. She stated that she rested her arm at all times on a pillow.

56 Her pre-accident activities have all ceased and in 2007 she moved to a house at the rear of Mrs Ryan’s property so that she could be closer to the assistance that Mrs Ryan provides both for her and for Mr McDonald.

57 It was apparent that Mr McDonald was also in ill-health suffering from asthma and a back condition. The plaintiff stated that prior to the accident she had cared for him and she now had the capacity to do so only in a very limited way.

58 The plaintiff was understandably depressed and unhappy about her situation.

59 The defendant reminded me of the principle in Reece v Reece (1994) 19 MVR 103 and suggested that I assess the plaintiff’s non-economic loss at 20 per cent of a most extreme case.

60 I do not consider that this is an appropriate level of assessment having regard to the evidence of considerable disability from which the plaintiff suffers through the virtual loss of use of her right arm and hand and the significant levels of pain from which she continues to suffer.

61 I have concluded that an injury and disability of this type in a young and fit person would warrant an assessment of at least 40 per cent. Having regard to the plaintiff’s advanced age, I have assessed her loss at 30 per cent of a most extreme case and I award her $101,500 for her non-economic loss.

62 In dealing with domestic and personal care, I note that it is agreed between the parties that the allowance for past care should be assessed at 15 hours a week. This amount has been claimed and is allowed in the sum of $63,991.

63 The plaintiff claimed 10 hours a week for the future at a commercial rate of $35 per hour for her life expectancy period of 11 years. I accept the defendant’s contention that there was no evidence that the plaintiff would obtain assistance on a commercial basis in the future and I have therefore assessed this part of the plaintiff’s claim at the current rate for gratuitous assistance of $22.64 per hour.

64 As to the level of care, the plaintiff’s evidence was that the care was provided by her husband and Mrs Ryan. Since Mr McDonald is in poor health, it is likely that most of the burden falls upon Mrs Ryan and that it is considerable.

65 The plaintiff contended that the true requirement for substantially all of her needs for washing, ironing, housecleaning, cooking and shopping was sixteen and a half hours per week but that this figure had been reduced to 10 hours to take account of the need generated in any event by her advancing age and the prospect of some improvement in her shoulder after surgery.

66 I do not accept the figure of 16-1/2 hours as the need generated by this incident. I accept, however, that she needs more substantial assistance than would be provided by the modest cushion suggested by the defendant.

67 Taking account of the plaintiff’s age and limited prospects for improvement in movement after surgery, I have assessed her needs at 8 hours per week. I have allowed therefore the future eight hours at $22.64 per hour, resulting in a figure of $80,435.

68 Past medical expenses have been claimed in the sum of $13,468.14. This includes claims for damages for travel and accommodation expenses associated with visits to specialist medical advisers.

69 The defendant objected to these claims on the basis that they also covered expenses incurred by Mr McDonald when he accompanied the plaintiff to her medical appointments.

70 I have noted, however, that the claims were for mileage that would have been travelled by the plaintiff whether alone or accompanied, and that the claims for accommodation appeared to be modest and basically covering room costs only.

71 I have therefore allowed past out of pocket expenses as claimed in the sum of $13,468.14.

72 In respect of future medical expenses, there is no issue concerning the need for surgery and an allowance is made for the quoted cost of $25,000.

73 I accept the defendant’s argument that the plaintiff consulted her general practitioner on a regular basis prior to the accident and was likely to continue to do so.

74 I do not accept that the medical records indicated that the plaintiff regularly required painkilling medication such as Panadeine Forte. Only one record in May 2003 indicated a prescription of Panadeine Forte to relieve headaches associated with a viral condition.

75 The plaintiff will continue to require medication for which I allow $25.31 per week as claimed. I accept that the plaintiff will incur some additional general practitioner, specialist and travel expenses which are assessed and allowed at the rate of $15 per week.

76 I have therefore assessed future expenses to meet these contingencies at $40 per week, resulting in an award of $17,764.

77 In summary, the damages awarded to the plaintiff are as follows:

Non-economic loss
at 30 per cent of a most extreme case - $101,500.
Past care - $63,991.
Future care - $80,435.
Past out of pocket expenses - $13,468.14.
Future out of pocket expenses - $42,764.

1 Verdict and judgment for the plaintiff in the sum of $302,158.14.

2 The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 6 August 2008 and on an indemnity basis thereafter.

3 The exhibits will be retained for twenty-eight days.

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