Mudford v Great Lakes Council

[2010] NSWDC 109

CITATION:	Mudford v Great Lakes Council [2010] NSWDC 109
HEARING DATE(S):	01/03/2010, 02/06/2010
JUDGMENT DATE:	17 June 2010
JURISDICTION:	District Court - Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1) Verdict for the defendant. 2) The plaintiff is to pay the defendant’s costs on an ordinary basis up to and including 11 December 2008 and on an indemnity basis thereafter. 3) The exhibits are returned. 4) My reasons are published.
CATCHWORDS:	CONTRIBUTORY NEGLIGENCE - Slip and fall - Adequacy of provision for access - Requirement to prevent access to or warn of dangers of using grassed bank
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Brodie v Singleton Shire Council (2001) 206 CLR 512 Pyrenees Shire Council v Day (1998) 192 CLR 330 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Wyong v Shirt (1980) 146 CLR 40
PARTIES:	Graeme Mudford (Plaintiff) Great Lakes Council (Defendant)
FILE NUMBER(S):	2008/00314693 (Previously 339/08)
COUNSEL:	Mr D Richards (for the Plaintiff) Mr P Cummings (for the Defendant)
SOLICITORS:	Slater and Gordon Lawyers (for the Plaintiff) Moray and Agnew Lawyers (for the Defendant)

JUDGMENT

1 Graeme Mudford slipped on a grassed bank in the Forster Beach Caravan Park on 29 October 2005. He suffered a serious fracture to his right leg in the fall. The caravan park was owned and operated by Great Lakes Council.

2 The plaintiff claimed that the defendant breached its duty of care as a result of which he suffered his injury. The defendant denied negligence, claimed contributory negligence on the part of the plaintiff and disputed the claim for damage and loss.

3 The issues were:

1 Whether the defendant was negligent, having regard to complaints made prior to the plaintiff’s fall concerning the condition of the grassed bank, in failing:

(a) to maintain the bank in a fit and proper condition by allowing grass clippings to remain on it after mowing;

(b) to warn the plaintiff of the presence of the grass clippings;

(c) to make adequate provision for pedestrian movement over the bank;

(d) to protect the plaintiff by installing a fence or other barrier to prevent access to the bank.

2 Whether there was contributory negligence on the part of the plaintiff in walking over a wet, grassed bank.

3 The extent to which any negligence of the defendant was causative of the plaintiff’s claimed ongoing disability.

4 The compensation, if any, to be awarded for non-economic loss, out of pocket expenses and domestic care requirements.

The Circumstances of the Accident

4 The plaintiff and his wife entered the Forster Beach Caravan Park with their caravan on 18 October 2005. They were allocated site 256 which they accessed by road from Barracouta Drive and Tuna Terrace. The site was positioned at the top of a grassed bank. At the foot of the bank was an amenities area for the use of persons staying in the caravan park.

5 Survey drawings and longitudinal sections forming part of Exhibit 3 indicated that the slope of the grassed bank was greatest at the point where the plaintiff’s caravan was parked and that the slope eased and levelled out at the entry to the amenities building. Mr Fogg, an engineer retained by the plaintiff, measured the slope in the area where the plaintiff fell to be between 15 and 20 degrees.

6 On 29 October 2005 the plaintiff left his caravan at about 5.20 am to go on a fishing trip. The sun had not risen but it was daylight and he was able to see. He was wearing thongs that he said had ridged soles that provided the grip he needed for the purpose of his fishing trip.

7 He walked down the bank towards the amenities building and slipped and fell after taking five to six steps.

The condition of the grassed bank

8 The plaintiff said the grass on the bank was wet at the time of his fall. He was able to see that it was covered in what he described as a sea mist within the first two to three of the steps he took when he left his caravan. At the same time he was able to see that the grass was covered in clippings from mowing that had been undertaken on the evening before his fall.

9 The plaintiff and Mrs Mudford both stated that the grass was cut between 4 pm and 8.30 pm on Friday, 28 October 2005 when they were out to dinner. On returning from dinner they noticed the clippings in the area around their caravan. Mrs Mudford swept some of them away from the concrete slab at the side of their caravan. The plaintiff said that some of the clippings were up to 30 cm long.

Provision for pedestrian movement

10 The plaintiff and Mrs Mudford said that during the period that they occupied site 256 they accessed the amenities area by walking up and down the grassed bank on which the plaintiff slipped. The plaintiff said he had walked over the bank up to five times a day prior to his fall.

11 There were two routes provided within the caravan park to the amenities area that did not require them to walk over the grassed bank.

12 They could walk about 60 metres east on Tuna Terrace to Barracouta Parade and about 50 metres south on Barracouta Parade to the amenities building. These approximate measurements were scaled from the survey drawing, Exhibit 3.3.

13 The plaintiff said that on 29 October 2005 access via this route was not available because of road works that were being undertaken in Barracouta Parade. He said the area in which the amenities building was situated was roped off by bunting so that the amenities area was not accessible from Barracouta Parade, Prawn Parade or Drummer Drive. He marked on Exhibit A2 the position in which the bunting was placed. He said the bunting was put up on Monday, 24 October 2005.

14 The plaintiff also claimed that Barracouta Parade had been dug up and suggested that it was not trafficable.

15 The plaintiff agreed that he had not used this route to the amenities area prior to 24 October 2005 when it was free of bunting. He always walked over the grassed slope.

16 Mrs Mudford also said that road works were being undertaken in Barracouta Parade. The road was being retarred or patched and half of it was closed for this purpose. The road was closed two or three times in the week prior to the plaintiff’s accident but it had not been closed daily. Mrs Mudford said nothing about the presence of bunting.

17 Other materials before the Court made it apparent that the claims of the plaintiff and Mrs Mudford that road works in Barracouta Parade prevented them from accessing the amenities area via that road were not true.

18 The plaintiff was prepared to concede that the bunting was not continuous and that there were some openings in it to allow access from Prawn Parade. He agreed that he drove on Barracouta Parade on arrival at the caravan park and that it was the sole means of road access to site 256 and other sites in Tuna Terrace and Taylor Terrace. He said one half of the road was left open for this purpose. Having made these concessions he agreed that he could have used Tuna Terrace and Barracouta Parade for access to the amenities area.

19 In addition, photographs, Exhibits C and 4, taken by Mrs Mudford on 30 October 2005, one day after the plaintiff’s fall, from a point at the top of the grassed bank at the rear of the plaintiff’s caravan provided views of Barracouta Parade to the west. There was no bunting in Barracouta Road adjacent to the amenities area and there was no indication of road works, of road closure or of excavation of any part of the road surface.

20 Exhibit M comprised a bundle of invoices and work orders relating to road repair works within the Forster Beach Caravan Park between September 2005 and November 2005. Those documents indicated that some road work was being undertaken in the caravan park over that period but they did not provide information about the location of those works or the dates on which they were undertaken.

21 The second access route to the amenities area was provided by means of a set of stairs leading from a barbeque area to the east of site 256. The plaintiff said that the stairs were 25 to 30 metres from site 256. He did not accept that the distance was 20 metres, although this was the distance indicated on the survey drawing.

22 The plaintiff said that these stairs were also unavailable as access to the amenities area. This was because they extended only half way down the bank. Further, access to the amenities area was blocked by plant and equipment parked or stored at the foot of the bank for the purposes of the road works. He described this equipment as a bitumen laying machine and two steam rollers.

23 This evidence was also untrue. Photographs Exhibits 5 and 6, depicted a staircase that extended for the full length of the bank to a gently sloping area of grass that was a short distance from the amenities building.

24 The photographs also showed camp site 114 that was at the foot of the staircase. The Daily Cash Report for the caravan park, Exhibit 9, indicated that site 114 was occupied in the period from 27 to 30 October 2005. The photographs demonstrated that when site 114 was occupied it would not have been possible to park plant and equipment for road works in the area at the foot of the staircase.

25 The plaintiff agreed that he was incorrect in his recollection that the staircase extended only half way down the bank. He said it was not shown on the plan given to him when he entered the caravan park site and he did not know that he was permitted to use these stairs. He agreed that he was not told that he could not use them.

26 He agreed that while he occupied site 256 there was no caravan on site 257 and no other occupied camp site between his caravan and the barbeque area. Photographs, Exhibit 6, indicated that the stairs at the barbeque area were readily visible from site 256.

27 The plaintiff also agreed that, contrary to the indication given by his evidence in chief, the road works machinery did not in fact obstruct access from the foot of the staircase.

ISSUE 1 – LIABILITY

28 The defendant accepted that it owed a duty of care to the plaintiff. It relied on a number of authorities directed at the scope of the duty owed by local and other government bodies when exercising their statutory duties. The authorities cited were Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431; Pyrenees Shire Council v Day (1998) 192 CLR 330; Brodie v Singleton Shire Council (2001) 206 CLR 512. While those cases confirmed that general common law principles of negligence applied to public authorities, they noted the limits in resources and funding that must necessarily be considered when determining the precautions that might reasonably be taken by a reasonable person in the position of those entities. In this case the defendant was operating the Forster Beach Caravan Park on a commercial basis and I therefore considered that these authorities were inapplicable in so far as they dealt with principles that applied to the exercise of statutory obligations.

29 The combination of s 5B of the Civil Liability Act 2002 and the principles established in Wyong v Shirt (1980) 146 CLR 40 lead to the following formula:

1 The risk involved must be reasonably foreseeable. The defendant did not argue that the risk in this case was not foreseeable. Indeed its position was that the risk was foreseeable to the point where it was obvious.

2 Nor could it be said that the risk of slipping on a grassed slope was insignificant.

3 The issue was whether in the circumstances of the plaintiff’s accident, the defendant ought reasonably to have taken precautions against the risk of harm to which the plaintiff was exposed.

Prior Complaint

30 In support of the claim that there had been complaints prior to the plaintiff’s accident about the condition of the bank, the plaintiff relied on a memorandum, Exhibit B, dated 24 February 2005 that referred to an incident in which a female slipped on wet grass and injured her ankle. The memorandum stated that the incident occurred in the early morning when the injured party was making her way to the top amenities block. It was claimed that this memorandum established that there was a history of accidents similar to that in which the plaintiff was involved.

31 I did not accept that the memorandum achieved this outcome. It did not indicate where the incident occurred or the circumstances in which it occurred. The only similarity with the incident involving the plaintiff was that an individual slipped on wet grass.

32 There was therefore no evidence of a history of accidents on the grassed bank causing injury of the kind suffered by the plaintiff.

Grass clippings

33 The plaintiff argued that the defendant ought reasonably to have taken two steps in relation to the grass clippings. The first was to ensure that they were removed after the grass was mown. The second was to warn him of the presence of the grass clippings.

34 I rejected this part of the plaintiff’s claim for the following reasons:

1 There was no evidence to indicate that foreseeable risk was increased by the presence of the clippings or that their presence alone was the cause of the plaintiff’s fall.

2 It was therefore not established that removing the clippings would have prevented the plaintiff’s accident or that in not removing the grass clippings the defendant acted unreasonably.

3 The defendant contended that the wet grass on the bank presented an obvious risk to the plaintiff. An obvious risk is defined in s 5F of the Civil Liability Act as a risk that would be obvious to a reasonable person in the position of the plaintiff. I accepted that the wet grass on the bank was an obvious risk.

4 The plaintiff was aware that the grass was wet. He was also aware the night before the accident that there were grass clippings in the area. He saw wet grass and clippings on the bank within two to three steps of starting to walk down the bank.

5 It could not be said that the plaintiff was unaware of the risk because he agreed that he was aware that a wet grassy bank could be slippery. He pointed to the fact that he was wearing thongs with heavily ridged soled to guard against this risk.

35 In the circumstances, s 5H relieved the defendant of any obligation it might have to warn the plaintiff of the risk of walking over the wet grassy bank.

36 In any event, I was not persuaded that, even if a warning had been provided, the plaintiff would have heeded it. As far as he was concerned, he had negotiated the bank safely about 50 times before this incident and he was not deterred from taking the same route although he was aware of the presence of wet grass and wet grass clippings.

Other preventative measures

37 The plaintiff pointed to a bundle of internal memoranda, Exhibit E, dated between July 2006 and November 2007 that referred to a barrier or temporary fence erected at the top of the bank to stop people slipping. The memoranda also dealt with plans to establish a garden bed at the top of the bank to discourage access to the area.

38 Exhibit D comprised a number of photographs of the garden bed that was established in accordance with those plans.

39 The plaintiff’s expert, Mr Fogg, accepted that this was an appropriate means by which the defendant could have prevented the plaintiff’s accident.

40 S 5C(a) of the Civil Liability Act provides that taking action of this nature subsequent to an incident does not of itself give risk to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. Accordingly establishing the garden bed more than two years after the plaintiff’s accident with the intention of discouraging pedestrian movement over the steepest part of the bank did not of itself establish that a reasonable person in the defendant’s position would, prior to the accident, have taken that action.

41 Mr Fogg’s opinion was based on an assumption that visitors to the Forster Beach caravan park commonly and regularly crossed the bank to gain access to the amenities building. There was no evidence that this was the case. The evidence was limited to the practice adopted by the plaintiff and Mrs Mudford who said they only ever accessed the amenities area by walking over the bank.

42 The absence of evidence of a history of accidents occurring as a result of the use of the bank as a means of access to and from the caravans parked at the top of the slope also suggested that this was not a common practice.

43 In the circumstances, I did not consider that the defendant acted unreasonably in failing, prior to the plaintiff’s accident, to provide some form of barrier to prevent or discourage persons from accessing the amenities areas by walking across the grassed bank.

44 Mr Fogg, also on the assumption concerning the regularity with which visitors to the caravan park crossed the bank, proposed that safety could have been improved by the construction of another set of stairs in the centre of the grassed bank. He considered this to be necessary because of the distance of 100 to 150 metres between the two existing routes to the amenities area.

45 There were two problems with this proposition. Firstly, as noted, it was not established that the bank was regularly used for access. Secondly, the distance between site 256, where the plaintiff’s caravan was parked, to the barbeque staircase was about 20 metres. He did not use those stairs. I considered it unlikely in the circumstances that he would use a staircase that was positioned 50 to 75 metres away at the centre of the bank.

46 There were available to the plaintiff two methods by which he could obtain access to the amenities area. His evidence that suggested that in some way he was forced to walk across the bank because these access routes were obstructed or unavailable was proved to be untrue. I considered the provision of these routes to be a reasonable response to the obvious and foreseeable risk of harm to persons if they were forced to rely on the grassed bank for access to their sites within the caravan park.

47 Nor was I persuaded that provision of a third route would have prevented the accident. The fact is that the plaintiff elected to walk over a relatively steep slope that was covered in grass that he knew to be wet and covered in grass clippings.

48 In such circumstances, I did not consider that the defendant was in breach of its duty of care to the plaintiff.

49 In summary my reasons for so finding were:

1 The two access routes that were provided were within a reasonable distance from site 256. They were unobstructed and available for the plaintiff’s use.

2 There was no evidence of a history of accidents to persons using the bank, suggesting that it was not used with the regularity assumed by Mr Fogg.

3 The provision of these access routes was a reasonable response to the foreseeable risk of harm.

ISSUE 2 – CONTRIBUTORY NEGLIGENCE

50 Were it necessary to decide this issue, I would have concluded that the plaintiff was at least equally responsible with the defendant for the harm that he suffered. I would assess his contributory negligence at 50%.

ISSUE 3 – CAUSATION

51 The plaintiff suffered a serious spiral facture of the tibia and fibula of his right leg. He was taken by ambulance to Manning Base Hospital where the fractures were fixed with a rod and cross bolts. He remained at the Hospital for two weeks before returning to his home in Melbourne. He was driven home by Mrs Mudford. During the journey he was forced to sit in the rear seat of their car so that he could extend his leg.

52 At this stage he remained in considerable pain relieved by pain killing medication. A plaster cast was applied to his leg and he mobilised with the assistance of crutches.

53 On his return home he was unable to access his bedroom on the upper floor of his two-storey home and slept in a downstairs room alone for about five months.

54 In Melbourne he consulted Mr Goldwasser, orthopaedic surgeon. The lower cross bolts were removed by Mr Goldwasser in December 2005 after which the plaintiff was treated by physiotherapy and hydrotherapy. He continued in a cast and with the use of crutches for a period of three months after the bolts were removed. He claimed that he required crutches until June 2006.

55 The remaining bolts and the pin were removed in March 2009.

56 The plaintiff claimed that as a consequence of his injury:

1 Prior to the accident he played golf once a week. He returned to golf in early 2008 and plays about six times a month using a differing golf buggy that takes more of the weight.

2 Prior to the accident he enjoyed shooting regularly. He returned to shooting in early 2008 but he no longer participates by walking through rough terrain. He now shoots from the back of a utility.

3 He avoids uneven ground and walks sideways on stairs. He continues to sleep in a downstairs room rather than using the 14 steps to the upstairs bedroom.

4 His right leg is 1 – 1.5 cm shorter than his left leg and the right leg is rotated outwards about 15 degrees.

5 The altered gait resulting from the leg length discrepancy has caused him to develop back pain.

6 He suffered cellulitis in the right leg on two occasions and on one occasion was hospitalised by this condition. He now carries medication with him in the event that he suffers a recurrence.

7 He has limited feeling at the site where the pin was removed. This left him unaware that he knocked his right leg and caused it to bleed.

8 He wears a white knee high pressure stocking daily.

9 He suffers pain when kneeling so that he is restricted in his gardening and other activities around the home.

57 Again, there was material that suggested that the plaintiff was not entirely truthful in this evidence. In contrast to the claim that he required crutches until June 2006, Mr Goldwasser recorded that by April 2006 the plaintiff was walking better and was using a walking stick outside the home for security. There was little evidence of complaint concerning ongoing problems with the leg in the clinical notes of the plaintiff’s general practitioner.

58 In contrast to the claim that he was unable to play golf until early 2008, a chiropractor recorded that the plaintiff suffered back strain when he played golf in July 2006. Dr Doig reported that the plaintiff returned to 12 holes of golf in November 2006 and that he was able to play 18 holes by March 2007.

59 The plaintiff conceded a pre-existing medical history of injury, including a fracture of the right leg in 1988 and of cardio-vascular, coronary and respiratory disease. He said he was unaware of a compression fracture of the L1 vertebra that was reported as a finding on a CT scan.

60 There was little medical support for any connection between the accident and the plaintiff’s complaints of back pain. Dr Doig was told of one episode of back pain in November 2006. He did not think the back pain was related to the injury to the plaintiff’s leg.

61 Dr Doig did not think that the muscle wasting or leg length discrepancy, measured by him to be one centimetre, would cause the plaintiff any significant problem.

62 Dr Searle recorded in May 2009 that the plaintiff complained of constant pain, mainly below the plaintiff’s right knee, that was aggravated by standing or using stairs. Dr Searle’s opinion was that these symptoms were permanent and the cause of a moderately severe degree of disability. The plaintiff said in evidence that he had no right leg pain, except for pain in his knee when kneeling. He said pain was not increased when walking and was increased very little when using stairs. He no longer takes pain relieving medication.

63 Dr Searle agreed with Dr Doig that the plaintiff’s complaints of back pain were unrelated to the injury to his right leg.

64 Dr Cummine in February 2010 reported that there was iron staining of the skin of the anterior aspect of the right shin and low grade mild chronic ulceration over the anterior aspect of the right tibia complicated by two episodes of acute cellulitis. Dr Cummine considered that the plaintiff was predisposed to this ulceration and cellulitis by peripheral vascular disease from which he suffered prior to the accident.

65 Dr Zeman examined the plaintiff in April 2009 and in January 2010. He agreed that the minor leg length discrepancy was not the cause of long term back pain. In his opinion the leg length discrepancy and the rotation of the leg were not of major functional significance. Dr Zeman disagreed with Dr Cummine concerning the attributability of the episodes of cellulitis. He considered they were the result of the plaintiff’s pre-existing vascular disease.

66 Aside from the cellulitis, there was little dispute between the medical experts. The pain and discomfort that was reported to Dr Searle was largely resolved by the time of the hearing. The preponderance of medical evidence rejected the plaintiff’s claim that back pain was a result of this accident.

67 I preferred the evidence of Dr Cummine’s opinion that the ulceration and cellulitis were the result of the accident. They both affected the area of the plaintiff’s right leg in which the injury occurred and, although related to vascular disease, were logically prompted by the aggravation resulting from that injury.

68 The result of this evidence was that I found that the plaintiff suffered the following as a result of the accident:

1 Fractures of the tibia and fibula of the right leg.

2 Pain and discomfort during the period of recovery both from the initial treatment with internal fixation and subsequently from the procedures undertaken to remove the fixation, now significantly resolved.

3 Minor shortening of the right leg measuring between 1 and 1.5 cm.

4 External rotation of the right leg of between 10 and 15 degrees.

5 Muscle wasting in the right thigh and calf.

6 Ulceration and cellulitis affecting the right leg resulting from the aggravation of his pre-existing peripheral vascular disease.

ISSUE 4 – ASSESSMENT

69 At the time of the accident the plaintiff was 64 years old. He is now 69.

Non-economic loss

70 The plaintiff suffered a serious fracture of his right leg and pain and discomfort during an extended period of recovery. His day to day activities were therefore affected but by April 2006 he was sufficiently mobile to require a walking stick only outside his home. He returned to his golfing and shooting activities on a reduced level at the latest by the end of 2006.

71 In assessing the plaintiff’s non-economic loss at 23% of a most extreme case I took into account his age, the evidence that he no longer suffered from significant pain and discomfort as a result of the injury to his right leg and that the leg length discrepancy, muscle wasting and external rotation were of minor consequence.

Domestic care

72 The plaintiff claimed that he required domestic assistance from his wife for a period in excess of six months and to a level in excess of six hours per week after the accident. I was not satisfied that that the evidence established a need to this extent. Although uniting of the fracture was initially delayed, removal of part of the metalware in December 2005 appeared to overcome this problem to the point where the plaintiff was mobile within six months of the accident, by April 2006. I did not accept that by that stage voluntary assistance of six hours per week was required.

73 I was satisfied that there was a need in future for assistance with heavier aspects of gardening and house maintenance. I considered that some of this need related to the plaintiff’s pre-existing medical condition and that an allowance of one hour per week at commercial rates would adequately compensate him for the need generated by the injuries suffered in this accident.

Out of pocket expenses

74 It was agreed that past out of pocket expenses amounted to $22,033.90.

75 I accepted that a lump sum allowance of $5,000 would meet the plaintiff’s ongoing needs for pressure stockings and treatment of any recurrent cellulitis.

ORDERS

76 Verdict defendant.

77 The plaintiff is to pay the defendant’s costs of the proceedings. This order is suspended for a period of 7 days to allow the parties to list the matter for further argument on the issue of costs, if required.

78 The exhibits are returned.

79 My reasons are published.

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