McEwan v Adpiosus Pty Ltd
[2006] QDC 87
•28 April 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
McEwan v Adpiosus Pty Ltd & Anor [2006] QDC 087
PARTIES:
JOSHUA GARY McEWAN Suing by his Litigation Guardian AMANDA LOUISE McEWAN
Plaintiffv
ADPIOSUS PTY LTD
ACN 010 507 605
First Defendantand
RUSSELL DOUGLAS SKERMAN and
MARGARET ANN SKERMAN
Second DefendantsFILE NO/S:
BD1338 of 2005
DIVISION:
Civil
PROCEEDING:
Claim
ORIGINATING COURT:
Brisbane
DELIVERED ON:
28 April 2006
DELIVERED AT:
Brisbane
HEARING DATE:
28-29 July 2005 and 2-3 February 2006
JUDGE:
McLauchlan QC, DCJ
ORDER:
Judgment for Plaintiff
CATCHWORDS:
Fire, Embers, Injury to Plaintiff’s foot, Negligence, s 74(1) Fire and Rescue Authority Act 1990 (Qld)
COUNSEL:
Mr Geraghty for the Plaintiff
Mr Kimmins for Second Defendants
SOLICITORS:
Hunter Solicitors for the Plaintiff
McCullough Robertson for the Second Defendants
The plaintiff was born on 20 July 1982. In 1997, when he was 14 years old, he lived with his parents in Corsa Street, Beaudesert. In close proximity to his house there was a large undeveloped area of land with a track which crossed it from east to west, leading through the land towards the showgrounds and golf course which abutted the land. The track also forked to give access to the main road, which ran along its northern boundary, the Nerang-Beaudesert Road. The evidence indicates that this land was used by local residents for a variety of purposes. People used it for access to the golf course, and, in that connection at least, vehicles used the track in question. The plaintiff himself used to ride his bicycle along the track to go to school, because it provided easier access than the roads in the area, which were quite steep. Other people used the track for jogging or as a means of access to the main road. The plaintiff and other young people also used the land for recreational purposes.
In March and April 1997, some clearing had been carried out on the land, and cut timber and vegetation had been piled up and was being progressively burnt, in the week commencing 7 April 1997. On 8 April 1997 the plaintiff, at some time after arriving home from school, during daylight hours, entered the land to investigate the remains of a fire which he had observed from the bus on his way home. In the course of this investigation, he trod on some hot embers and suffered a burning injury to his right foot.
The land at the time contained two lots; Lot 1 on registered plan 207468, and Lot 2 on registered plan 840773. These lots had been acquired by the first defendant for development in or around 1995 and were in the ownership and occupation of the first defendant as at April 1997. On 13 March 1997 the first defendant obtained a quote from “R and M Plant Hire”, a partnership conducted by the second defendants, for clearing the site for development. The quotation was for – “selective clearing of approximately 75 acres of site of trees and regrowth, collection and stacking of rock boulders, repair of excavation sites, pushing of all trees and burning of all debris including obtaining Council and fire brigade permits where required.”
The quote was accepted and the clearing work started on 14 March 1997.
There is conflicting evidence as to the state of fencing, and the presence or absence and condition, of a gate on the property at a point where the property was customarily accessed from Corsa Street, and in the vicinity of that street. The evidence indicates, in my opinion, that there was fencing on both sides of the gateway, which was some distance from the cul-de-sac at the end of Corsa Street. This fencing was of a “rural” type, that is, it consisted of posts and three or four strands of barbed-wire. One witness suggested that it would have been adequate to keep out large animals, but not small ones. There also appears to have been some fencing along the main road boundary of the property although, again, the witnesses were in disagreement concerning this. It is clear that there was no fence on the boundary between the property and the golf course and that the property could readily be accessed from the golf course. The fencing was probably adequate in some places but old and broken down in others, so that it did not effectively prevent access to the property at many other points.
According to some witnesses there was a gate opposite the Corsa Street cul-de-sac, but a very old one, whereas according to other witnesses there was no gate there, just two gate-posts. It appears that if there was a gate, it was probably a “rural” gate, that is, constructed in the same way as the fence itself. It was perhaps closed at times but was often open because vehicles went through there, and drove along the track inside the property which I have already referred to. Mr Grant, who was carrying out clearing and burning work for the second defendants on the property, stated that approximately when the work commenced he placed a number of large boulders in front of the gate or the gateway. This was to prevent access to the property by vehicles and, so he said, bicycles. The presence of the boulders was confirmed by evidence from Mr Skerman, one of the second defendants. Other witnesses said they had never seen any boulders near the gate at any time. I think it is likely that boulders were in fact placed generally in the vicinity mentioned by Mr Grant, but they were not intended to prevent access to the property by people on foot and did not have that effect. Mr Grant said that after the work commenced no check was made to ensure that the gate, which he said was there, was kept closed, because his purpose, and that of the second defendants, which was to keep out vehicles, had been achieved by the placement of the boulders.
The second defendants obtained a permit to light the fires required for burning off the vegetation from the relevant authority. The permit originally covered a period from 21 March 1997 to 28 March 1997, but it is common ground that it was extended so as to be in effect when the burning was actually carried out, that is, in the week commencing 7 April 1997.
On the date of the incident the plaintiff walked into the property, from Corsa Street, wearing leather basketball boots and proceeded along the track, which runs along the top of a ridge, until he identified a pile of smouldering timber, which he decided to examine more closely. It is not clear how far along the track he proceeded before turning off the track and approaching the smouldering pile. It may have been 200 metres, as he said at one point in his evidence, or it may have been further. He has indicated somewhat different positions of the pile in question at different points in his evidence, but in my opinion little flows from that. It was said by witnesses on behalf of the defendants that there were steep gullies and rough terrain on the land and that there would have been some difficulty in the plaintiff’s accessing any of the piles which had been or were burning on the land on that date. On the other hand, there was evidence from witnesses that, as one would expect, these piles were formed on relatively flat areas of land, and there was other evidence to the effect that the land on either side of the track was of a moderately gentle slope. I do not consider that the precise nature of the terrain has any particular bearing on the issues in this case. The plaintiff said that when he approached the pile, there was an area around it, blackened, and apparently cold. He approached to within approximately 5 metres of the smouldering wood, walking on the blackened areas, and then turned around to walk back. When he had walked back approximately 10 metres, his right foot went into a hole or depression, which was not visible because it was covered by blackened material, and hot coals came into contact with his foot through the top of his boots and by burning the sides of his boots. He was in considerable pain, and he sat on the ground attempting to get his boot off, in the course of which he also suffered burns to his hands. He suffered no injury from sitting on the ground in such close proximity to where his foot had been burnt. He was, apparently, screaming with the pain but, in any event, was making his way back towards the track when he was observed by his father, who had been jogging around the golf course and was returning home through the same gateway as that used by the plaintiff. Mr Gary McEwan, the plaintiff’s father, said that he used to go for a jog down the track and around the golf course and back after work. It is not clear how often this occurred, but my impression was that it was a regular event for him. He then assisted the plaintiff home. At home the plaintiff was still in severe pain and his mother attempted to give him some relief by placing his foot in water. An arrangement was made that he be taken to the Beaudesert Hospital and he was taken by his parents in the car with his foot in a bucket of water. His wound was cleaned and a bandage applied and he was sent home to return the following day. A few days later the damaged tissue was removed, or “debrided”, and healthy tissue exposed. This was dressed and bandaged. There was then carried out a skin graft, the graft being taken from a site on the plaintiff’s thigh. He was in hospital for approximately 10 days for these procedures and was discharged with bandaging and a stocking on his right leg and on crutches. The whole experience was obviously very painful for the plaintiff.
The plaintiff discontinued against the first defendant in December 2002. The second defendants, in their submissions, invoked the provisions of s 74(1) of the Fire and Rescue Authority Act 1990. Reliance on that section had not been pleaded, contrary to r 149 UCPR, but no objection has been taken by the plaintiff on that basis. That section provides that a person who lights a fire authorised to be lit by a permit, and who, in lighting the fire, complies with any condition or direction contained in the permit and does not contravene any provision of the Act – “does not incur any liability at common law for any loss, injury or damage caused by the fire unless it is shown that the person acted recklessly or maliciously caused the loss, injury or damage.” The provision applies only in respect of a fire lit for the purpose or likely to have the effect of burning off vegetation, but that is clearly the case here. In my opinion the purpose of the provision, relevantly, is to protect someone who has obtained a permit and complied with its conditions and whose conduct, although it may have been negligent at common law, nevertheless has not been reckless; cf, Hart v Commissioner of Taxation (2003) FCAFC 105.
The conditions of the permit include a condition that there be two persons in attendance “at the fire”. Evidence on behalf of the second defendants was generally to the effect that fires were lit early in the morning, around 9.00 a.m., and that the fires then burned throughout the course of the day. As the vegetation burned, the material would be pushed towards the centre so that it was heaped up, and the size of the pile gradually reduced. There was evidence that generally both Mr Skerman and Mr Grant were present during this operation, and that there was a water truck kept on the property to prevent any escape of the fire. The truck was driven at regular intervals between different burning piles and fire breaks were established at the perimeter or beyond the perimeter of each fire, in accordance with the requirements of the permit. The evidence for the most part was to the effect that both Mr Grant and Mr Skerman would be present until the end of the day, 5.00 p.m. or 5.30 p.m., when they would leave the property with the fires smouldering, but little, if anything, in the way of naked flames. In other words, the general thrust of the evidence was that the burning had “completed” and what was left were glowing embers which would gradually die down. However, at one point in his evidence Mr Skerman indicated that the property would be left with active fires still burning. He indicated that a pile that was lit on a given day would probably be reduced in size by 50 per cent by that night, and it would be left to burn out during the night or “burn as much as it could during the night.” He was then asked, in Chief, “And when you left, for example was it just a matter of coals smouldering or … ?” The response was to the contrary, that there would be flames, quite often serious flames, but not 10 and 20 feet high, but there would be logs there four, five and six hundred in diameter which were only “sort of half burnt”, so that there was still “a fair bit of heat and a lot of fire”. Mr Skerman went on to say that some of the timber can take 36, 48 hours to burn. Both witnesses gave evidence that they followed standard practice in the industry, but it seems to me that to leave the property with fires, including “serious flames” still burning overnight, is not a compliance with the condition which I have mentioned above.
In this case, however, I am concerned with one of a number of fires lit by the second defendants under the permit. This is the “fire” which the plaintiff approached, and, as a result suffered a burn to his foot. It is common ground that at the time of that incident, there was no “fire” in the sense of active flames; rather there were glowing embers which in the usual course would die down leaving the burnt material in a cold and blackened state. The question, upon which no submissions were made to me, is whether at the stage where the fire has been reduced to glowing embers and smoke without flames, it is correct to refer to that situation as a “fire”. I take the view that unless a fire has burnt out completely, it remains a fire, albeit a dying fire, for the purpose of the relevant legislation and that the conditions of the permit in this case required that there be two persons in attendance during the whole of that time. Since the question was not the subject of any submissions, however, I give leave to the parties to apply to set the judgment aside for the purpose of making submissions on that point within fourteen days. For the present, I consider that the second defendants were in breach of the condition and are not entitled to the protection of section 74(1).
So far as negligence is concerned, the second defendants were aware of persons entering the property and using the track whilst they were carrying out clearing operations. It may be that they did not observe any children during that period, but it is the fact that the property could be accessed without any difficulty from the golf course end, which is what in fact the second defendants did, and that there was no effective barrier to persons entering the property from the Corsa Street end. The neighbours to the property were advised of the burning operations, but these seem to have comprised the golf club and one other person, and Mr Skerman did some house-knocking in Corsa Street. The second defendants were engaged in a dangerous activity which could reasonably be foreseen to involve a risk of serious injury to persons on the property. That risk may be slight in relation to adults, who could reasonably be expected not to take any risks with their own safety in such a situation, and not to approach a fire or to go anywhere near it. In my opinion, however, the same cannot be said of children, even those in their early teenage years. A schoolboy of the plaintiff’s age might well be expected to have some interest in the existence of fires relatively close to his home and which could be easily and conveniently inspected, by accessing the property on which they were situated. It is not clear that the plaintiff was a trespasser, since no effective steps had been taken to exclude individuals from accessing the property and there were no signs prohibiting entry, which would have been sensible in view of the activity being conducted on the property. Moreover, the second defendants were not the occupiers of the property. They were simply contractors carrying out tasks on the property occupied by the first defendant. In my opinion the second defendants owed a duty to take reasonable care for the safety of the plaintiff, or someone in his position, in carrying out the burning operations on the land. The fact that, as was conceded, the property was left on occasions with some active fires still burning and some left in a dying state, at the end of the day, indicates to me that that duty was not sufficiently observed.
Mr Skerman also conceded, in cross-examination, that because a fire was reduced, in the course of the day, by pushing burning material in towards the centre, and because of the possibility that tree roots might catch fire and burn some distance out from the main fire, it was possible that there may have been holes or depressions in which coals were burning or radiating heat under a ground surface which had cooled and blackened. That possibility was, in my opinion, a risk which called for an appropriate response from the second defendants. One such response would have been to water the area beyond the central point, where the fire was still burning or smouldering, to obviate the risk of burning or smouldering material injuring someone because it could not be seen. That is something which, I infer, could have been done with little expense or trouble. The operation was set up in such a way that water was available for just such purposes. Other steps which could have been taken include the erection of signs warning of the danger of entering the property even when fires were not actively burning, and creating an effective barrier to entry on the property by persons, as distinct from vehicles, from the Corsa Street end. Again these measures would not seem to involve a degree of expense or difficulty disproportionate to the risk created by the activity of the second defendants on the land. In my opinion, the second defendants were in breach of their duty to take reasonable care for the safety of the plaintiff and are answerable to him in damages.
The plaintiff endured considerable pain and suffering over a relatively short period and has a problem with his right foot, which will probably require special arrangements with regard to working and dress shoes, for the rest of his life, or at least for a very long period. It appears that it is essential to keep edges or seams in footwear out of contact with the grafted skin on his ankle and heel, and this must be particularly avoided where the grafted skin is joined to the ordinary skin. He also has a cosmetic blemish on his thigh where the skin grafts were taken from. For general damages I would award the plaintiff the sum of $25,000.
The plaintiff makes a claim for past and future economic loss. He says that he had an ambition to join the Army dating back to the time he was at school and, in fact, in 1999, when he was in Grade 12, he had his first interview with respect to that matter. His interviewer at that time reported that he had limited life skills and that his prospects of success were not particularly good, but recommended that he should be able to sit a preliminary test, designed to discriminate between people who generally were suitable for considerable for appointment and other people who did not fall into this category. In fact, he sat this test early in August of the same year and passed it. He said that he did not proceed further with the matter because at the end of one of those interviews he mentioned his scar to the officer interviewing him and was told, off the record, that it was most unlikely that he would obtain an appointment with that scar on his foot.
Other evidence has been given in the case, particularly by Kylie Fardell, broadly to the effect that a candidate would not be considered medically fit for admission to the Army if, for any reason, he or she could not wear standard issue boots. Further evidence establishes that the plaintiff could not wear such boots unless they were in some way specially modified or unless some form of padding could protect his foot from impact with the boot in the affected area. An orthopaedic boot-maker gave evidence to the effect that the only way to overcome the problem is to have specially made shoes, so that padding could be built into the shoe or boot, and contact between the heel and ankle with seams and ridges eliminated. Padding around the foot, rather than in the footwear itself, is unlikely to be successful and, in any event, would not be effective in wet conditions. There is no prospect, so far as the Army is concerned, of a candidate for admission being able to provide his own boots or of the Army modifying a pair of standard issue boots for his use. It is a reasonable conclusion, in the circumstances, that a career in the Army has not, in truth, been open to the plaintiff since the injury to his foot. Notwithstanding this, the plaintiff made a further application in April 2005 for a position in the Army. He did not proceed with that application because shortly thereafter he fractured his ankle and it appears that the Australian Defence Force will not consider an application within 12 months of the applicant having suffered a significant fracture.
The plaintiff, however, must establish that he had reasonable prospects of success in obtaining a career with the Army if he is to recover damages from the defendants. Although he did pass the ADEFT test, he was not highly considered for appointment, and subsequent events, namely offences relating to the unlawful use of a motor vehicle, and assault occasioning bodily harm whilst armed and in company, have revealed aspects of the plaintiff’s character and personality which make him unsuitable for service in the Armed Forces. Passing the initial test is only the first step in what has been described by an Army witness as a long process leading to appointment. It is apparent that the plaintiff cannot, in the circumstances, establish that it is likely that he would have received and retained an appointment with the Army had it not been for the scar on his foot. At the same time, it does seem to me that he has lost the chance of an appointment with the Army because of his injury and that he should be compensated for that. Details of his earnings are in evidence and the plaintiff has also presented a schedule of what his earnings would have been had he received an Army appointment. That schedule is not in evidence but the figures do indicate a significant discrepancy between what his earnings have been and what he might have earned in the Army. He is still a very young man and could possibly have had a career for some period in the Army if he had managed to obtain an appointment. I think it is appropriate to award the plaintiff for the loss of a chance to obtain such an appointment, a sum of $15,000, of which it is appropriate that $5,000 should bear interest up to the date of trial.
The claim for past and future economic loss is based upon the plaintiff’s “loss” of a career in the Army, a matter which I have dealt with. It is not otherwise contended that the plaintiff has suffered or will suffer economic loss because of the injury to his foot. The plaintiff has, in fact, engaged in other forms of employment, although there is some evidence of difficulty he has experienced with wearing appropriate footwear. He has been working for “Mountain Pumps” from around July, 2005, and wears boots to carry out that employment. I am not persuaded that the plaintiff’s scholastic results were significantly affected by his treatment at school following his return to school with a reduced capacity to engage in some sporting activities. It seems to me, that with appropriately modified footwear, he will suffer little, if any, economic disadvantage, as a result of the scar on his foot. Other than the figure mentioned above, I make no award for past or future economic loss.
There is no dispute as to the amount claimed for special damages, and I award the sum of $570 as claimed. This amount will attract interest of $88.00.
Griffiths v. Kerkemeyer damages are claimed in the sum of $4,576.00. The plaintiff’s mother confirmed the accuracy of the components in her evidence, and she was not cross-examined on the matter. The plaintiff himself was uncertain about some of these, but thought his mother would have a better idea. I consider that the figure claimed has been sufficiently proved, and it is allowed in the above amount, with interest in the amount claimed, that is, $730.
A claim is made in respect of an amount payable to the Health Insurance Commission of $248. The only evidence before me in relation to this is exhibit 31, which refers to an amount of $831.20. In the circumstances I shall award the amount claimed, and if this is incorrect it can be adjusted.
The remaining head of damages is for boots and shoes which the plaintiff is likely to have to purchase for his use in the future as a result of the injury to his foot. The approximate cost of orthopaedically made boots is $800 per pair, and the cost of modifying ordinary shoes is $65 per pair. These may give rise to annual expenses for the plaintiff of about $700 for boots (after making an allowance of $100 which would have been spent on ordinary boots) and the said sum of $65 in respect of modification to shoes. This amounts to about $14 per week, which, calculated over 30 years on the 5% tables produces a present amount of $11,508. Because of the uncertainties which attend this estimate of future expenditure, I consider it appropriate to discount that figure by 25%. The resultant figure is $8,631.00
The remaining issue is the question whether the damages should be reduced because of contributory negligence on the part of the plaintiff. The standard of care which a child may be expected to exercise for his or her own safety is that which may reasonably be expected of a child of similar age, intelligence and experience: McHale v Watson [1966] 115 CLR 199. In my opinion the plaintiff, who was of moderate intelligence and normal experience for a child of his age, could not be expected to appreciate that an area of land surrounding the active part of the fire, which was blackened and gave no appearance or sensation of heat, might nevertheless be dangerous because below the apparently safe surface there may be a “hot spot” where, for some reason, coals were still radiating significant and harmful heat. In my opinion the plaintiff acted with reasonable care for his own safety in wearing boots and in keeping a distance of 5 metres or so from the burning or glowing coals or embers, and in walking only upon ground which gave every indication that in that area the fire had burnt out the ground being blackened and cold.
In the result, damages are awarded in the sum of $59,243.00 calculated as follows:-
General Damages for pain, suffering and loss of amenities $ 25,000.00 Interest at 2% on $15,000 for 8 years $ 2,400.00 Economic Loss $ 15,000.00 Interest at 5% on $15,000 for 8 years
Special Damages
$
$
2,000.00
570.00
Interest thereon
Griffiths v. Kerkemeyer
Interest thereon
$
$
$
88.00
4,576.00
730.00
Health Insurance Commission $ 248.00 Future Expenses $ 8,631.00
0