| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : NAIKEN -v- CITY OF GOSNELLS [2005] WADC 177 CORAM : COMMISSIONER ARCHER HEARD : 13-17 JUNE 2005 DELIVERED : 16 SEPTEMBER 2005 FILE NO/S : CIV 3145 of 2001 BETWEEN : JANNETTE MARIE NAIKEN Plaintiff
AND
CITY OF GOSNELLS
Defendant
Catchwords: Negligence – Causation – Competing inferences – Res ipsa loquitur – System of inspection and maintenance – Contributory negligence – Damages – Turns on own facts
Legislation: Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947
Occupiers' Liability Act 1985
Result: Judgment for the defendant
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Representation:
Counsel:
Plaintiff : Mr G T Stubbs
Defendant : Mr J G Staude
Solicitors:
Plaintiff : Dwyer Durack
Defendant : Mullins Handcock
Case(s) referred to in judgment(s):
1. Blundell v Musgrave (1956) 96 CLR 73
1. Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563
1. Diamond v Simpson (No.1) (2003) Aust Torts Reports 81-695
1. Giorginis v Kastrati & Anor (1988) 49 SASR 371
1. Griffiths v Kerkemeyer (1977) 139 CLR 161
1. Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21
1. Kocis v SE Dickens Pty Ltd (T/as Coles New World Supermarket [1998] 3 VR 408
1. Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
1. Medlin v State Government Insurance Commission (1995) 182 CLR 1
1. National Insurance Co of New Zealand Limited v Espagne (1961) 105 CLR 569
1. Pennington v Norris (1956) 96 CLR 10
1. Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492
1. Redding v Lee; Evans v Muller (1983) 151 CLR 117
1. Roman Catholic Archbishop of Perth & Ors v Hinchcliffe [1998] WASCA 244
1. Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
1. Voli v Inglewood Shire Council (1963) 110 CLR 74
1. Williams v Commissioner for Road Transport & Tramways (NSW) (1933) 50 CLR 258
1. Case(s) also cited:
Bresatz v Przibilla (1962) 108 CLR 541
Bryant v Fawdon Pty Ltd (1993) Aust Tort Reports 81-204
Burrum Corporation v Richardson & Gehrmann (1939) 62 CLR 214
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Davis v Bunn (1936) 56 CLR 246
Demczuk v Polish Soc Dom Mikolaja Inc (1987) 46 SASR 223
Godfrey's Ltd v Ryles [1962] SASR 33
Grant v Australian Knitting Mills Ltd (1935) 54 CLR 49
Lipman v Clendinnen (1932) 46 CLR 550
McKrill v Lincoln Constructions (WA) Pty Ltd [2003] WADC 84
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Scott v London & St Katherine Docks Co (1865) 3 H & C 596
Thatcher v Charles (1961) 104 CLR 57
The Council of The City of Maitland v Myers (1989) Aust Torts Reports 80-243
Wheat v E Lacon & Co Ltd [1996] AC 552
Wilkinson v Joyceman [1985] 1 Qd R 567
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Background 1 The plaintiff was born on 26 June 1952 and is nearly 53 years of age. She is a qualified diversional therapist, which means she is qualified to aid occupational therapists, physiotherapists and speech therapists. 2 Prior to May 2000, she was working 27 hours a week as a diversional therapist. In May she stopped working in order to care for her partner and to study. Her partner, Emmanuel Hoareau ("Manny"), suffers from atypical Parkinson's disease. His condition is degenerating and he requires significant assistance from the plaintiff. The plaintiff also wished to study as she had decided to set up her own aromatherapy business and leave the field of diversional therapy.
The claim 3 The plaintiff claims damages from the defendant in relation to injuries she suffered when she slipped in the Gosnells Civic Centre on New Year's Day 2001. The defendant concedes that it owed a duty of care to the plaintiff either as the occupier or the landlord of the premises. However, the defendant denies that it breached that duty of care and says further that, in any event, any such breach did not cause the plaintiff to slip. Alternatively, the defendant contends that the plaintiff was contributorily negligent.
The accident 4 In 2000, the plaintiff was the secretary of the Seychelles Club of WA. The club had booked the Gosnells Civic Centre for its New Year's Eve function in 2000. As secretary, the plaintiff was responsible for organising functions, setting up and cleaning up afterwards. 5 The club had used the Gosnells Civic Centre on prior occasions for dances and meetings. On those occasions, there were no problems with the floors. 6 On the Friday before New Year's Eve, the plaintiff received the keys from the Gosnells Civic Centre. She went to the premises to check that the keys opened the doors, which they did. On New Year's Eve itself, she went back to the Centre at around 2.00 pm with her cousin, Neil Raymond, to prepare for the party. A number of others followed shortly afterwards.
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7 When they entered the main hall, the plaintiff could see what she described as swirls on the floor, shown up by the sunlight coming through the windows. She said they appeared to have been made by a machine and looked recent, as there were no scuffs or smudges in the swirls. Throughout that afternoon, she said she noticed a number of other things about the floor. She said a number of people were commenting on its slipperiness, but she could not remember who they were. She said that a group of them had to hold a ladder to keep it stable while it was being used. She also said that more than half of the balloons were bursting on contact with the floor. The plaintiff appeared to be suggesting that that was somehow caused by the slipperiness of the floor. However, there was no other evidence about the balloons bursting in this way. Nor was there any expert evidence that a slippery floor could have that effect. The plaintiff said that as a result of all of her observations, she took extra care and was walking a bit more slowly.
8 Once the function began, the plaintiff's role was to prepare and serve the food. She spent much of her time in the kitchen and bar area, occasionally taking food out to the main hall. She said that she felt that her shoes were not "a good match" with the concrete floor in the kitchen, so she borrowed some from somebody else. 9 The plaintiff did not drink any alcohol on that night. 10 Shortly before midnight, the plaintiff's duties were finished and she was able to enjoy the party herself. She danced a couple of times with her cousin, by this time back in her own shoes. Those shoes were tendered as an exhibit and had a relatively flat and broad heel of about an inch and a half in height. The plaintiff said that while she was dancing, she and her partner both slipped and fell on to the ground. However, they continued to dance after that. 11 The plaintiff also noticed during the evening a lot of young children sliding in the main hall annexe area. She said they would take a couple of running steps and then slide on their shoes, knees or bottoms. 12 Not long after midnight, the plaintiff began to clean up after the party. She was moving through the main hall annexe area with a V-shaped broom intending to sweep around into the main hall area. She said she was looking ahead and the lighting was fairly dim. She said she slipped, in that her left foot went forwards. As she fell, her right leg went underneath her body. She landed on the ground with her right leg underneath her and her left leg out in front of her. She also put her arm
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out and claims to have sprained her right wrist on the floor. However, no other evidence was led of that apparent injury. 13 She said she went into shock and could not get up. Ultimately, she was taken to Royal Perth Hospital by ambulance. She was found to have broken her ankle, and required an operation. During the operation, various plates and screws were inserted, and her foot was put into a cast. She was discharged three days later on crutches and with Panadeine Forte. 14 The plaintiff denied seeing anything that she might have slipped on. She said she did not know if there might have been a residue of food on the floor. She was cross-examined about the answers to the interrogatories in which she said she had fallen on wax. She said that that is what she had assumed. 15 A number of other people who attended the dance on New Year's Eve were called to give evidence. Phillipe Lavigne said he had seen children sliding in their shoes a distance of about a metre. He himself danced about 10 dances and did not slip. He also said none of his dance partners slipped nor did he see anyone else slip throughout the evening. 16 Jocelyn Rowe said that she did feel the dance floor was slippery. However, she herself did not slip and nor did any of her dance partners. When asked whether anybody else had slipped, she said she had a vague feeling that somebody had ended up on the floor but did not know how. She said she was wearing leather soled shoes and explained it was very difficult to dance with rubber soled shoes on a wooden floor. 17 Pascal Lemarchand said that he had done a lot of dancing himself. 18 He had also seen children sliding, including his own two children. He said he could not remember if the children were sliding on their feet or their bottoms but thought perhaps both. He said his children were definitely wearing shoes, which he described as sneakers. He said one of his children had sneakers with leather soles that were fairly new. The other had plastic rubber soles. 19 He also said that when he saw the plaintiff on the floor, there was nothing else on the floor. 20 Marie Nella Calais said she had seen children sliding for up to 3 metres, but did not say whether the children had shoes on at the time. She said she did not hear of anyone else falling over that night, nor did anyone complain to her about the floor.
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21 She said when she saw the plaintiff on the ground, there was nothing else there other than the broom, and certainly no mess.
22 She agreed that on previous functions when she had cleaned up, there would sometimes be a bit of food on the floor which would require mopping up. 23 Francois Sauzier said that he had felt that the floor was slippery, so thought it would be good to dance on. He was wearing rubber soled shoes with a heavy tread. He said he had had a few dances, and felt that the dance floor was "alright". 24 Mr Sauzier said that when he saw the plaintiff on the ground, he did not notice anything on the floor in her immediate vicinity. 25 In addition to going to the party, Mr Sauzier had been one of the people who had helped prepare the hall that afternoon. 26 He agreed that the ladder had been held in place, but said that had been done for safety reasons and that nothing had happened with the ladder. 27 Neil Raymond is the plaintiff's cousin. He had also helped setting up the hall, and had noticed there were swirls on the floor. He described them as circular swirls, like scuff marks or buff marks. 28 Under cross-examination, he said that he thought the swirls appeared to have been made by a machine, due to the pattern. He agreed that they looked like they had been made by polish or wax. He agreed he had thought there was too much wax on the floor and indeed he had told the plaintiff that while they were setting up. 29 Mr Raymond described how he had tried to set up the trestle tables. Initially, he had stood them on their sides and tried to pull the legs out. He said the tables kept sliding. He said the legs were metal but he did not know what was on the feet of the tables. He said that, after he set them up, they were still slipping. Under cross-examination, Mr Raymond agreed that the top and edges of the tables were laminated. 30 In relation to the ladder, Mr Raymond said that two of the legs had rubber feet but did not know about the other two. He said the ladder was moving forward along the floor as the man was going up it. He said that is why he got up to hold the ladder. He said that the ladder had also
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moved when the man was putting the balloons in the net, even though at that time people were holding the ladder. 31 Mr Raymond also said he took particular care because he was concerned about slipping on the floor as he had a neck injury. Despite that apparent concern, Mr Raymond danced three to four times. He said that on one occasion when he was dancing a slow dance with the plaintiff, they both slipped and fell on the floor. Mr Raymond also described slipping in a different part of the dance floor while dancing a fairly fast dance. On this occasion, he said he was able to regain his balance when he slipped, and didn't fall. Mr Raymond said he was wearing rubber soled boots. 32 He also noticed the children sliding in the annexe. He said they were sliding on their feet and bottoms and that they had shoes on. He agreed some had socks on. He said they would take a few steps, stop and then slide to the end of the annexe. 33 Mr Raymond said he did not see the children go into the annexe with food. He said that when he had slipped, he had not slipped on anything on the ground. He said people were not taking food on the dance floor. 34 He said when he had seen the plaintiff on the ground, there was nothing else around her apart from the broom. 35 The plaintiff tendered a witness statement of Bernadette Hoareau who was also a guest at the party. Ms Hoareau was unable to attend court for medical reasons. 36 In her statement, Ms Hoareau stated that she slipped and fell forwards when she attempted to cross the width of the main hall. Ms Hoareau also stated that the floor seemed very slippery. While her state of health at that time is not known, the medical certificate which explained her non-attendance indicated that she has a neurological condition which affects her ability to walk and an inner ear tumour that causes severe imbalance. 37 It is difficult to know what weight to put upon this evidence. The defendant has not had the opportunity to cross-examine Ms Hoareau and there is no evidence as to any effect that her medical condition may have had on her slipping on the night or her ability to assess the slipperiness of the floor. Accordingly, I put little weight on this evidence, and accept that it simply demonstrates that another party goer subjectively felt the floor to be slippery.
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38 Ms Hoareau also stated that she had seen children playing sliding games, but her statement did not indicate what they had been wearing on their feet if anything. Accordingly, that evidence does not add to the evidence of the other guests.
Expert evidence 39 The plaintiff called Dr Chew to give expert evidence about the slipperiness of the floor. Dr Chew is an engineer. He was unable to test the actual floor surface of the Gosnells Civic Centre as it was common ground that the Centre had been demolished. However, he was apparently able to obtain floorboards from the Centre. 40 He tested those floorboards in four different conditions. Firstly, in the condition in which he received them ("the received condition"), secondly, the received condition with water on it ("received condition and wet"), thirdly, the received condition with wax on it ("waxed") and finally, the received condition with wax and water ("waxed and wet"). He explained how he conducted those tests and how the results compared to the Australian Standards. 41 In summary, the boards in received condition failed the Australian Standards. In waxed condition, they passed, by quite a substantial margin. Wet, they failed, whether in their received condition or waxed. Accordingly, while it is perhaps counter-intuitive, Dr Chew's evidence was that a floor was less slippery the more wax it had on it. This was not disputed by the defendant, and indeed was the view of the defendant's expert. 42 Dr Chew pointed out that the tests were done with rubber that was designed to represent typical rubber shoes. He had seen the shoes the plaintiff was apparently wearing on the night and saw no reason to vary his conclusion based on the type of shoes she was wearing. 43 He was asked about the risk of slipping if the floor was in various conditions. He said that he would not expect children could have slid with rubber shoes on the waxed surface it if was dry, unless they were wearing brand new shiny leather soles. He later qualified that to "near new" shiny leather soles, and said that by "near new" he meant within the first few wears. 44 He said that the received condition planks showed no wax residue, but the wax could have been absorbed into the wood.
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45 He agreed that greasy food residue or small hard bits of food could make a floor slippery.
46 The defendant called Martin Simms, another engineer. He did not test floorboards from the Gosnells Civic Centre, but rather tested the floorboards at a venue with apparently similar flooring. He tested the flooring in three states, namely with minimal wax and signs of significant wear, with normal wax and with excessive wax. The last category was not buffed. 47 Mr Simms used the same test that Dr Chew used. Each of the types of flooring he tested passed the Australian minimum standards. 48 In relation to wet tests, he said virtually all surfaces fail the Australian standards other than smooth concrete. He said that that fact has been recognised to an extent by changes in the Australian standards. 49 Mr Simms also gave evidence about a number of other matters. He explained that wax was water soluble. Therefore, if the boards from the Gosnells Civic Centre had been stored so as to be exposed to the weather, the boards would go back to virtually the bare wood. If that had occurred, the result of 0.33 would not surprise him. (This was the coefficient of friction obtained by Dr Chew on the received condition wood). While this evidence was unchallenged, Mr Simms' qualifications would not seem to entitle him to give expert evidence as to the solubility of wax in water. Accordingly, I disregard that evidence. 50 Mr Simms said his subjective impression of the floor he tested was that it gave good grip. 51 He was shown the plaintiff's shoes and explained that it would be very easy to test the shoes to see if they were of similar drag to the rubber stopper used in the tests. Having said that, however, he said he would expect the shoes to perform like an ordinary rubber shoe. 52 In a relation to the children sliding, Mr Simms said relevant variables were the speed at which the children were travelling before they stopped to skid, what they were wearing and where they had been beforehand. In respect of the latter, he pointed out that if their shoes were contaminated with grass residue that would affect their resistance. He said that other variables included whether there was liquid or food on the floor. 53 Mr Simms also said he would be very surprised if a child wearing a rubber soled shoe could slide at all. As to whether a person wearing
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leather soled shoes could slide, he said he didn't know, but it wouldn't surprise him if they could. 54 When asked about the likelihood of children in sneakers with "plastic rubber" soles (the description give by Pascal Lemarchand) sliding on particular surfaces, Mr Simms said that that description was meaningless. However, he did expect plastic would be more slippery. 55 Mr Simms also said that if children were sliding around on a surface with their clothing, that would remove wax from the floor. 56 Mr Simms said the type of light affects how the floor looks. He said that buffing left close circular swirls on the surface. He said he saw unbroken line swirls in the buffed area and also in the well trafficked area. He said there were broken line swirls in the excessively waxed areas. 57 In re-examination, Mr Simms said he wouldn't expect to see any buffing marks if there was no wax on the floor, even if the floor had then been buffed. 58 Mr Simms said that the fact that the tables had been sliding around didn't indicate anything about the slipperiness of the floor. He said he had a lot of experience with these sorts of tables. He said there were two reasons why it did not indicate anything. Firstly, he said that the edges of these tables tend to be plastic edged, which means they are low friction surfaces. He said they were prone to slide even on rough concrete. Secondly, he explained that the legs would be locked up under the table and requires some force to pull them out. That force contrasted to the very light weight of the table meant that it wouldn't be surprising if the table slid around during that process. 59 Neither counsel challenged the expertise of Mr Simms to offer opinions about trestle tables. While part of his evidence was based on his engineering qualifications, part of it seemed also to be based on his general knowledge of trestle tables. Although he said that he had a lot of experience with trestle tables, no evidence was led as to what sort of experience that was. Nor was there any evidence that he had seen the tables in issue. Trestle tables vary in size, construction, weight and mechanisms. Accordingly, I disregard Mr Simms' opinion as to why these particular tables were sliding. However, in the absence of appropriate expert evidence on this issue, it is not known why the tables were sliding, if they were. The plaintiff failed to lead evidence that the tables may have been sliding due to the slipperiness of the floor, rather than for the reasons expressed by Mr Simms. Accordingly, in my view,
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even if I was to find that the tables were sliding, that would not tend to prove that the floor was slippery. 60 In relation to the ladder, Mr Simms said he had done many tests on ladders. He said that once a person was on a ladder it was impossible for it to move unless the person was "waggling", and that the movement of the ladder had nothing to do with the slipperiness of the floor. 61 He said it was well known that ladders could "walk" and there was even an Australian standard for ladders called "the walk test". He said this was because the ladders were made from materials such as aluminium that distorted when a person moved on it. He said it had nothing to do with friction. He said the amount that a ladder walked would depend on the material of the ladder, the height of the ladder on which the person was, the amount of waggling being done by the person and the weight of the person. 62 Again, some care must be taken with this evidence. There was no evidence that Mr Simms had seen the actual ladder in issue. However, his evidence does have the effect of reducing the probative value of the evidence that the ladder was moving. In my view, it goes so far as to destroy the probative value, but for reasons which I will later explain, it is unnecessary to go that far. 63 There was little challenge to the evidence of the experts, and apart from the areas I have mentioned, I accept their evidence.
The cleaners 64 Kevin Smith has been a cleaner for the City of Gosnells for the last 12 years. He gave evidence for the defendant. He spent his first 10 years working with the City of Gosnells cleaning the Gosnells Civic Centre. He cleaned it every day except Wednesday. He said that the floor of the Centre was jarrah and he would put a polish down on the first Monday of every month or as needed. If a function was particularly hard on the floor, he would either re-polish it or spot polish it where necessary. The floor was buffed every day. 65 He said he had a general calendar that he marked off every month when he polished the floor and he kept that calendar in the storeroom on the wall. 66 Mr Smith said that the less polish that was on a floor, the more slippery the floor was. That is consistent with the expert evidence.
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Mr Smith also said that you could see swirls on a waxed floor after it had been buffed, and the swirls would be more noticeable the more wax was on the floor. He also said that buffing doesn't remove the wax, it just spreads it out. 67 Mr Smith said he could tell just by looking at the floor if more polish was needed. For example, if hot water had been used to get something off the floor, it would leave a white mark. 68 Mr Smith wasn't aware of any falls on the floors. Nor was he aware of any complaints about the floors, other than the boot scooters complaining it was a bit grippy on one occasion. 69 Under cross-examination, Mr Smith said he had been on holidays shortly before Christmas of 2000 up until late January. Whenever he went on holiday, a Mr O'Doherty would fill in for him. Mr O'Doherty relieved Mr Smith over an eight year period at least once a year. Mr Smith said he had never had cause to comment on Mr O'Doherty's work. 70 Mr Smith said that the only training he received was on the job training. He said when someone was filling in he would take them through what was required step by step and that they would be with him for about a fortnight before he went on holidays. Later, he said that Mr O'Doherty would have been with him in the week before. 71 He agreed it was conceivable that he hadn't polished the floor in December before he left for his holidays. 72 Michael O'Doherty also gave evidence for the defendant. He has been a cleaner with the City of Gosnells for 11 years. He said the floors were buffed every day and they would be polished every three to four weeks unless they had "a bad show". 73 He said he could tell whether he had covered the whole surface of the floor with the wax polish because it went on wet. He could also tell if he had covered the whole floor with the buffing machine as it got shiny. He described the look as being wavy and even somewhat shyly volunteered that it looked "really nice". He agreed that the more polish that was on the floor, the less slippery it would be. 74 He said you could tell if the floor needed to be re-waxed if it felt less grippy and if there were a lot of drink spillages. He also commented that if the polish had been removed, it would come up white.
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75 He said that the cleaners had been shown how to use the polish when they changed over to the Gold Mist variety.
76 As far as filling in for Mr Smith, Mr O'Doherty said that if he had a gap between jobs, he might spend a few days with Mr Smith. 77 I am satisfied that Mr O'Doherty was capable of properly waxing the floor. A properly waxed floor would pass the Australian Standards by a substantial margin. The plaintiff did not suggest that such a floor would have been so slippery as to be unsafe. On the contrary, the allegation was that the floor had not been properly waxed. Further, that allegation appeared to be based on the suggestion that the floor had not been waxed for some time prior to the accident. 78 Mr O'Doherty agreed he couldn't be certain that he had put a coat of polish on during this period. However, he was emphatic that if he hadn't, that would have been because it didn't need it. He was emphatic that he wouldn't leave it dangerous. When asked how long the job would take and if he ever ran out of time, he was again emphatic in saying that he would stay and do the job properly. His evidence as to these matters was quite compelling and I am satisfied that he took professional pride in his work and would have done it to the best of his ability. 79 Michael Hamlin then gave evidence for the defendant. He became the manager for the Parks and Building Services in November of 2000. While the cleaning was within his area of responsibility, the actual cleaning team was self-managed. He said the only issue that he was aware of in relation to the floors was that the dancers said that they didn't give them "enough slip".
Duty of care 80 The defendant conceded that it owed a duty of care to the plaintiff as an entrant to the premises. Whether that duty was owed by reason of the defendant being an occupier or a landlord is immaterial, as the content of the duty is the same under the Occupiers' Liability Act 1985 (see s 5 and s 9).
Alleged breach of duty
81 The plaintiff alleges that the defendant breached its duty of care by:
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"1. allowing the floor to be unacceptably slippery; 2. failing to check and inspect the floor to ensure that it was not unacceptably slippery; and 3. failed (sic) to apply material or substance to the surface of the floor to prevent it from being unacceptably slippery."
Causation 82 There is no doubt that the floor was slippery at the location at which the plaintiff slipped. There is no dispute that the plaintiff slipped. 83 The critical issue is what caused the floor to be slippery at that location. If it was slippery at that location due to the negligence of the defendant, the defendant will be liable. If not, the defendant will not be. 84 It is for the plaintiff to prove on the balance of probabilities that the defendant's negligence caused the floor to be slippery at that location. 85 The question of causation "is essentially one of fact to be resolved, on the probabilities, as a matter of common sense and experience": Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 6. 86 At least in negligence claims against an occupier, there are no special principles that apply to "slipping cases": Kocis v SE Dickens Pty Ltd (T/as Coles New World Supermarket [1998] 3 VR 408, per Ormiston JA at 409. 87 The plaintiff submitted that, where it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided. If that inference can be drawn, the plaintiff submitted that the occupier's duty to take reasonable steps to avoid slipping injuries will have been breached. 88 In support of that proposition, the plaintiff cited Kelly v Lend Lease Retail Pty Ltd (1993) 113 FLR 21 at 28.However, that comment was made in the context of a slip occurring due to the presence of a foreign material on the ground which an adequate cleaning system may well have detected prior to the slip. Accordingly, it is not directly relevant to these facts. Here, it is not known what caused the floor to be slippery at the location at which the plaintiff fell.
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89 Counsel for the plaintiff submitted that the fact that the children were able to slide along the annexe demonstrated that the floor was insufficiently waxed. However, there is simply insufficient evidence as to what the children were wearing on their feet. The fact that they were sliding would not be surprising if they were wearing only socks or nearly new leather soled shoes, or sliding on their bottoms. The only witnesses who said that the children were wearing shoes were the plaintiff, her cousin Mr Raymond, Mr Lavigne and Mr Lemarchand.
90 I have some reservations about the evidence of the plaintiff and her cousin. 91 The plaintiff initially claimed to have slipped on wax. It then became apparent that wax in fact decreases the slipperiness of a floor. The plaintiff's claim then became an allegation of an insufficiency of wax. 92 In addition, some of the plaintiff's evidence was not consistent with the evidence of the orthopaedic surgeon, Mr Collopy. For instance, the plaintiff said she had a plaster on for two to three months, during which time she used crutches. However, Mr Collopy said the cast was on for six weeks. 93 Further, the plaintiff said she needed elbow crutches for two to three months after the cast came off. She said she then progressed to a walking stick and then walked unaided. Mr Collopy said that he would have expected her to have been off crutches two weeks after the cast was removed. 94 In addition, the plaintiff's evidence as to her level of physical restriction was different to what Mr Collopy would have expected, for example as to for how long she could walk. 95 It may well be that the plaintiff simply was suffering a lack of confidence, or suffering from more severe symptoms than the usual person. On its own, this evidence would prove nothing. However, in combination with some of the other evidence, it causes me to have reservations about the plaintiff's evidence. 96 The plaintiff was cross-examined about a CV she had prepared after the accident in which she described her health as excellent. She was asked whether that was truthful and she said: "Well, that was done in 2001, no, it wasn't, but, you know – well, I mean, I'm familiar with it myself. Well, as far as I'm
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concerned is that – I mean, I saw that as my health, I would say my general health as opposed to my leg. I was employed by Thomas Scott knowing that I had an ankle problem. They were fully aware of that." 97 Under "Work History", the CV said that from 2001 to the present the plaintiff had been working at the Thomas Scott Hostel. Accordingly, the CV must have been prepared between 2001 and February 2003 while the plaintiff was working at the Thomas Scott Hostel. 98 Further, there is a discrepancy between the plaintiff's oral evidence as to the amount of standing up work she does compare to her own business records. 99 Finally, the plaintiff's evidence in relation to the balloons, given that that apparent phenomenon was not even mentioned by any of the other partygoers, was odd. In all of the circumstances, I cannot rely on the plaintiff's evidence. 100 I also have some reservation about the evidence of Mr Raymond. Mr Raymond conceded that he had originally said that he thought there was too much wax on the floor. He also claimed that he was taking particular care because he was concerned about slipping as he had a neck injury. However, it seems Mr Raymond still danced on several occasions, including after having apparently slipped for the first time. In addition, his evidence as to the movement of the ladder seemed to be inconsistent with Mr Simms' evidence as to the circumstances and manner in which a ladder would move. While Mr Simms did not see the actual ladder, his evidence as to the movement of ladders generally suggests Mr Raymond's account was not accurate. Even without the evidence in relation to the ladder, I would not accept the evidence of Mr Raymond. 101 Mr Lemarchand could only recall his children wearing shoes which he described as sneakers. His description of the soles of those shoes does not permit any useful inference to be drawn from his evidence as to the slipperiness of the annexe. 102 Mr Lavigne said that he thought that the children had shoes on their feet, but it was possible they were only wearing socks. He said "I know they had shoes on but I don't know what kind of shoes on. They weren't allowed to take their shoes off." Mr Lavigne also said he had only seen the children sliding a few times. He said he though they were sliding a metre or may be a metre and a half but he was not sure. It was apparent that Mr Lavigne did not have a clear recollection of the children sliding.
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103 In any event, there is no evidence that the children's shoes were not leather soled other than the evidence of the "plastic rubber" soles on the shoes of one of Mr Lemarchand's children. While it is perhaps unlikely that all of the other children were wearing "nearly new" leather soled shoes, it is not impossible. This was a New Year's Eve function, and the children may well have been wearing their best clothes.
104 However, it is unnecessary to speculate as to the types of shoes. There is no doubt that the children were also sliding on their bottoms and some in their socks. It is therefore entirely possible that the wax that was on the floor in that area was removed by the children sliding. It is not known at what point the children were sliding in shoes, if they were. There is no reason to assume that they were sliding in their shoes initially, rather than after they had already been sliding on their clothing. 105 On its own, the evidence of the children sliding is inconclusive. However, it is one of the circumstances that must be taken into account. 106 I do note that numerous partygoers said that there had been no foreign material on the floor at the location at which the plaintiff slipped. However, in my view, that evidence is insufficient to prove that the cause was insufficient wax rather than a foreign material. Such material may have been virtually undetectable, such as a smear of oil. Any such material could also have been absorbed by the plaintiff's footwear or clothing when she fell to the ground. Further, it is unlikely that any of the guests were looking for such foreign material. It is more likely that their attention was focused on the plaintiff. There was certainly no evidence to the contrary. Accordingly, this evidence is also inconclusive, but is a circumstance to be taken into account. 107 The plaintiff also relied on the evidence of the tables sliding when they were being set up and the ladder moving. For the reasons expressed earlier, I do not accept that either of those matters suggest that the floor was inadequately waxed, even when taken in combination with all of the evidence. 108 The plaintiff also relied on the evidence from some of the witnesses that the floor felt slippery. I accept that it is possible to have a subjective impression of slipperiness. However, it is not known over what areas the other witnesses felt the floor to be slippery. Nor is it known whether those witnesses thought the floor was slippery all over, or simply slippery in patches.
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109 A finding that the floor was slippery all over would be inconsistent with the actions of the partygoers that night and in particular with the actions of Ms Naiken. Most of those who said they perceived the floor to be slippery still danced. There is no evidence that anybody did not dance due to concerns with the floor. On the contrary, there was evidence that the floor was perceived to be good to dance on. In addition, the fact that the plaintiff and Mr Raymond continued to dance after apparently having slipped once speaks volumes.
110 Further, the plaintiff's failure to take any action is inconsistent with the floor having been slippery all over. She did not make any effort to contact the defendant to report the state of the floor. 111 Counsel for the plaintiff submitted that the plaintiff was not in a position to fully appreciate any danger that the floor might present. She had attended the Centre on previous occasions without a problem, and was obviously not experienced in the polishing and buffing of hardwood floors. 112 However, the plaintiff has considerable experience in ballroom dancing and would undoubtedly have had a great deal of experience in the surfaces of wooden floors. 113 The plaintiff was the secretary of the club and responsible for the organisation of the party. The plaintiff's history and demeanour when giving evidence demonstrated that she is an assertive, capable and responsible person. 114 The fact that she did not make any effort to contact the defendant, or to warn guests that the floor was slippery, again suggests that it wasn't, apart from the isolated locations at which perhaps foreign material had been deposited. 115 There was ample evidence that there was finger food at the party. The children had access to that food and to drinks. The children were playing in the annexe area, but also in the dance area when no one was dancing. Accordingly, it is possible that food or liquid was dropped in the dance area and in the annexe. Simply because Mr Raymond said that he did not see children taking food on to the annexe, nor the presence of food on the dance floor, does not exclude the possibility that there was, at the very least, some residue of food or perhaps liquid. 116 Counsel for the plaintiff submitted that, had there been any food or liquid on the floor, the plaintiff would have swept it up with the broom
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she was pushing in front of her. However, that is by no means a certainty. In any event, there is no evidence that the broom used would have swept up all residues of oil or liquid left on the floor after the larger particles of food have been swept away. 117 Kevin Smith maintained a calendar that showed when the floor had been waxed. There was evidence that it was possible to detect when the floor needed to be re-waxed. There was no evidence that determining whether a floor needed to be re-waxed was something that could be done scientifically. Indeed, the evidence was to the contrary. Accordingly, any failure on the part of the defendant to provide formal training to the cleaners would not have obviated this risk. Further, the entire floor was buffed everyday, or at least every day except Wednesday. 118 Counsel for the plaintiff suggested that the daily buffing could remove wax from the floor. The only evidence that that could occur came from a document apparently written by a manufacturer of the relevant floor wax. In that document (Exhibit P28), it was recommended that strip maintenance be performed where there appeared to be a build up of wax on the floors. The document said "this is evident when the buffing pad becomes clogged with the wax when polishing." The document went on to say that excess wax would only occur if there had been too much applied. 119 Mr Stubbs argued that that proved that buffing would remove wax. In my view, all it proves is that when there is excess wax on the floor some of the excess may be lifted into the buffing pad. As there was no suggestion that the buffing pad itself would be cleaned from time to time, the logical inference is that a certain amount of wax might be picked up in the buffing pad, but it would reach a point at which it could no longer absorb any more wax. In any event, it is unnecessary for me to make a finding one way or the other. That is because in my view Mr O'Doherty would have applied more wax if he believed it was necessary. 120 There is no reason to suppose that Mr O'Doherty did not have the expertise to determine whether the floor needed to be re-waxed, nor any evidence to suggest he would have been derelict in his responsibilities. On the contrary, Mr O'Doherty was an experienced cleaner and, as I have found, one who took his responsibilities seriously. Undoubtedly, the defendant could have had a system of regular checks to ensure the cleaners were properly performing their duties. Further, it is apparent that some of the cleaners were not always cleaning up to the necessary standards. However, in all of the circumstances, I am satisfied on the
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balance of probabilities that this floor was sufficiently waxed, else Mr O'Doherty would have re-waxed it. 121 Counsel for the plaintiff submitted that Mr O'Doherty's veracity as a witness was undermined "by the fact that his evidence has been influenced by the solicitors for the defendant." In examination-in-chief, Mr O'Doherty was asked "Do you know what function if any occurred at the Civic Centre on 31 December 2000?" Mr O'Doherty responded "Well, this is Seychelles, isn't it?" He was then asked whether he had done anything in relation to the floor. He then gave evidence of what he "would have" done based on his normal schedule. In cross-examination, he was asked how he could remember it was the Seychelles Club. Mr O'Doherty replied "Because it's in our statement or whatever I've got from the lawyer what they sent out that said it's Seychelles or whatever it is." He said that he had known it was the Seychelles Club at the time, but would not have recalled that had it not been for the statement. In my view, there is nothing inevitably sinister in that answer. Furthermore, Mr O'Doherty gave his evidence in a straightforward and credible fashion. He did not attempt to claim that he had definitely waxed the floor between Christmas and New Year. He simply gave evidence as to his usual practice and the fact that he would have waxed it had it needed it. In all the circumstances, I have no hesitation in accepting his evidence. 122 Additionally, of particular significance is the evidence of the plaintiff and her cousin as to what they had seen on the floor when they attended that afternoon. That evidence supports the conclusion that the floor was sufficiently waxed. 123 Counsel for the defendant also pointed out that the plaintiff's evidence about walking carefully also tended to disprove that the slip was caused by insufficient wax. That is because if the floor was insufficiently waxed, and the plaintiff was taking due care, one would not have expected her to slip. On the other hand, if there was foreign material on the floor, the slipperiness at that location would be greater than the general slipperiness of the floor. In such circumstances, even a person taking proper care could slip. I accept that there is some force in that proposition, and it is another piece of circumstantial evidence to take into account. 124 In my view, in light of all of the evidence, the plaintiff has failed to prove that she slipped because the floor had been insufficiently waxed by the defendant. In Roman Catholic Archbishop of Perth & Ors v
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Hinchcliffe [1998] WASCA 244, Malcolm CJ, with whom Kennedy and Ipp JJ agreed, said: "In my opinion, as in that case, in this case also, in the absence of any other evidence of causation the mere presence and design of the step combined with the evidence of the respondent was not capable of leading to an inference on the balance of probabilities that the respondent tripped or slipped while negotiating the step because it constituted a hazard. As I have mentioned, there were other possible causes which could not be excluded on the balance of probabilities. This was not a case in which the circumstances of the accident spoke for themselves, putting an evidentiary burden on the appellant to show how the accident could have happened without negligence on its part or to exclude any part played by the step in causing the accident. In my view, unfortunately for the respondent who suffered severe injuries in the accident, she failed to discharge the onus of proof that the accident was caused by the presence or design of the step being such as to constitute a hazard, which could have been removed by the exercise of reasonable care. It remains a matter of conjecture how the fall occurred and what caused it. In these circumstances, regrettably, the respondent failed to discharge the onus of proof that the accident was caused by the negligence of the appellant." 125 In my view, similar observations can equally be made in this case.
Res ipsa loquitur 126 Counsel for the plaintiff submitted that the doctrine of res ipsa loquitur could assist the plaintiff in proving that the accident was caused by negligence. I do not accept that submission. I do not accept that the accident was "of such a kind that it does not ordinarily occur without negligence": Schellenberg v Tunnel HoldingsPty Ltd (2000) 200 CLR 121, per Gleeson CJ and McHugh J at 134. 127 The doctrine is not a rule of law, nor does it shift the onus of proof. It is merely an application of an inferential reasoning process: Schellenberg (supra), per Gleeson CJ and McHugh J at [22]. 128 There is no doubt that the cause of the plaintiff slipping may have been inadequate wax on the floor. However, that does not necessarily mean that the floor had been insufficiently waxed. The wax may have
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been removed by the children sliding on the floor or by somebody cleaning up a spillage. In addition, the floor may have been properly waxed, but the plaintiff may have slipped on a piece of food, patch of liquid or a residue of food or liquid. This was a New Year's Eve party involving food and drink and dancing. There were children present. Some of the party goers had eskies. It is not known whether those eskies contained ice, nor whether the children were taking drinks from the eskies and moving around the hall with them. However, none of these possibilities are any less speculative than the possibility that the plaintiff slipped because the floor was insufficiently waxed. In those circumstances, the doctrine has no application: Schellenberg (supra), per Gleeson CJ and McHugh J at [25], [44], [45] and per Kirby J at [116] – [118]. See also Hayne J at [150] – [151]. 129 Of course, the fact that the principle is inapplicable does not mean that the plaintiff cannot rely on inferential reasoning to prove negligence: Schellenberg (supra), per Gleeson CJ and McHugh J at [37]. 130 The defendant could not be expected to prepare the floor in such a way that it would not become slippery should food or liquids be deposited on it. Indeed, the expert evidence made it clear that would be an impossible task. Nor was it suggested, nor could it be, that the defendant ought to have foreseen that wax would be removed by children sliding on the floor and take steps to somehow prevent that from occurring. Further, because the accident may have been caused by food or liquid, or by the removal of the wax by the sliding children, it cannot be said that the accident would have occurred if proper care had been taken.
Breach of duty 131 Assuming I am wrong, and that the floor had been insuffiently waxed by the defendant, it is necessary to consider whether that was a breach of the defendant's duty in all of the circumstances, including the circumstances set out in s 5(4) of the Occupiers' Liability Act. 132 The Occupiers' Liability Act sets out the care which an occupier is required to show. Section 5(1) states: "(1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall,
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except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger." 133 Section 5(4) states: "(4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to - (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person." 134 The defendant was well aware that its premises were used for a variety of activities, including dancing. The defendant had a duty to make the premises as safe for the purpose of the New Year's Eve party as reasonable care and skill on the part of anyone could make them: Voli v Inglewood Shire Council (1963) 110 CLR 74. There is no doubt that the defendant would have known that it was necessary to ensure that the floors were not so slippery as to be unsafe, so far as that was reasonably possible, in order to prevent falls from occurring. 135 Accordingly, if the entire floor was insufficiently waxed by the defendant, I would find that that was due to the breach of the defendant's duty of care. It would mean that the defendant had failed to employ
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cleaners who would properly prepare the floors and who were properly trained as to how it needed to be done, and had failed to have an adequate system to ensure that the floors were properly prepared.
Contributory negligence 136 By virtue of s 10 of the Occupiers' Liability Act, the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947 applies to this claim. Accordingly, I would be required to reduce any damages "to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff" (s 4 of the Law Reform (Contributory Negligence and Tortfeasors Contribution) Act). 137 It is well settled that the defendant has the onus of proving contributory negligence: Williams v Commissioner for Road Transport & Tramways (NSW) (1933) 50 CLR 258 at 264. 138 In Commissioner for Railways (Qld) v Ruprecht (1979) 142 CLR 563, Mason J said at 570: "... it has been repeatedly asserted that the standard of care in contributory negligence, like the standard of care in negligence, depends on foreseeability and is that of the reasonable and prudent man, so the defendant is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable and prudent man, he would expose himself to risk of injury." 139 In Podrebersek v Australian Iron & Steel (1985) 59 ALJR 492, the court said "The making of an apportionment as between a plaintiff and a defendant of their respective shares and responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage… It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case …" 140 In my view, those considerations are equally applicable to determining whether it is appropriate to reduce damages under s 10 of the Occupiers Liability Act 1985.
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141 In this case, the plaintiff gave evidence that she thought that the floor was slippery and indeed was purporting to take extra care to avoid slipping. Evidence was given by various witnesses of a subjective sensation of slipperiness. Both expert witnesses agreed that people do have an ability to detect the slipperiness of a surface subjectively.
142 If she believed the floor was slippery, it was incumbent on the plaintiff to take steps to protect her own safety. A number of options were available to her. 143 Firstly, a "reasonable and prudent" person in the position of the plaintiff, who detected that the floor was slippery at 2.00 pm, would have contacted the defendant about the state of the floor. 144 The plaintiff says she adjusted her walking to take extra care. If the floor was slippery due to having been insufficiently waxed, it would have been slippery throughout the hall. Indeed, that was the plaintiff's case. It has not been suggested on the part of the plaintiff that the floor was simply insufficiently waxed in one or two places. That being so, if the plaintiff had adequately adjusted her walking to account for the slippery floor, it is highly unlikely she would have fallen. I find she was taking insufficient care. 145 On the other hand, at the time that the plaintiff slipped, she was walking at a normal pace in sensible shoes. It is not as if she was sprinting across the floor at the time. 146 While it is a difficult task to assess an appropriate level of contributory negligence, I would assess the plaintiff's contributory negligence as being 25 per cent.
Assessment of damages 147 Assuming I am wrong, and that the defendant is liable for the plaintiff's injury, the plaintiff would be entitled to damages.
Impact of the injury 148 At the time of the accident, the plaintiff's partner Manny was in Sir Charles Gairdner Hospital. From time to time, he had to be hospitalised so that the medication for his condition could be changed. He had been admitted to hospital about a week before the plaintiff's accident. On previous occasions when he had been hospitalised for that purpose, he was kept in hospital for a couple of weeks. However, the plaintiff said
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that on this occasion he had to stay longer because he had suffered post-traumatic stress due to what had happened to her. 149 The plaintiff was not required to pay any money for Manny's stay in Sir Charles Gairdner Hospital. After Manny left the hospital, he was placed in Gracewood Respite Home in Como, again at no cost to the plaintiff. However, from 30 January 2001 to 11 February 2001, Manny was in Dundas House, and this did cost the plaintiff a small amount of money. 150 The plaintiff said that while the cast was on, she was not coping very well and was unable to care for Manny. However there was no evidence that that was the reason why Manny did not come home. 151 The plaintiff said the crutches were interfering with an old shoulder and neck injury by causing aches and pains in those areas. She said her ankle was also painful due to some swelling. As she was not coping with the crutches, she hired a wheelchair. 152 She said she could not do general household duties such as sweeping, mopping, cleaning and cooking. She said she had difficulty showering and dressing and exiting the home. A friend of hers, Marilyn Neilson, assisted her with a number of these matters. Ms Neilson cleaned intermittently and assisted with cooking every couple of days. She took the plaintiff shopping a couple of times a week, and took the plaintiff to visit Manny almost every day. 153 The plaintiff says she had the plaster on for two to three months. After the plaster was removed, the plaintiff started attending physiotherapy, initially a couple of times per week. She said that the treatment was quite painful at first, but it became less so as her mobility increased. 154 Once the cast was off, the plaintiff's capacity to cope increased a little. She said she was able to use elbow crutches and could do the basics around the house. Her friend did not need to help much around the home, but still drove the plaintiff to physiotherapy and medical appointments, to the shops and to visit Manny. 155 The plaintiff said she used elbow crutches for two to three months progressing down to using only one. She then progressed to a walking stick and then walked unaided.
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156 She said at one point she got an infection on the outside of her ankle which caused a small amount of pain. She went to her GP on 30 June 2001 and was given penicillin. She suffered an allergic reaction to the penicillin. She said this caused her foot and toes to swell up and the appearance of what she described as hives on her toes, back and shoulder. She went back to her GP on 6 July 2001 and was given a different antibiotic. When seen by her doctor four days later it was thought she was "responding to the antibiotics well and she was given Elocon cream for her eczema rash".
157 The plaintiff said that she still had some of those marks on her shoulders and back. While giving evidence, she showed the marks on her left shoulder. The marks were quite prominent red circular marks, each approximately the size of a 5 or 10 cent piece. 158 However, under cross-examination, she agreed that the allergic reaction had been treated satisfactorily at the time. She agreed that she had not seen a doctor after that time in relation to it. Interestingly, at another point in the plaintiff's evidence, she said that the cream was for her ankle and that later on when she was diagnosed with thyroid problems she needed it for the eczema she suffered on her hands. In his closing submission, counsel for the plaintiff properly conceded that the evidence was equivocal as to whether the ankle injury caused the hives. In light of the plaintiff's own evidence, I am not satisfied that it did. 159 The plaintiff completed her correspondence course in aromatherapy in February 2001. 160 In mid to late March 2001, Manny was returned to her care. The plaintiff said that she had difficulties in providing the care that Manny needed. This was particularly when Manny fell, as the plaintiff was in fear of breaking her own ankle again when helping him up. She described Manny as six feet tall and quite heavily set. She said he could have three falls a day on "bad days". The plaintiff said she was able to pick him up once or twice in one day but three times was hard, particularly if it was in confined areas. She was unable to explain why the ankle injury impeded her. She said there were times when she would have to leave him on the floor and just make him comfortable. If it was daytime, she would usually be able to get a neighbour to help. 161 She said that, prior to her injury, she was able to help Manny with all of his activities of daily living. This including showering, dressing and helping him move around. She said she got help with showering Manny
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three times a week from Silver Chain and otherwise had no difficulties in caring for him. 162 She agreed that, prior to the accident, her partner was ambulatory and it was in 2001 that he deteriorated. She claimed that that deterioration was partly due to her accident because she could not help him as much. She did agree, however, that some was due to the degenerative nature of his condition. 163 She conceded that prior to the accident Manny had never fallen and so she had never had to help him up from falling before. 164 In June 2001, she returned to work as a diversional therapist, as she did not feel able to manage setting up the aromatherapy business. She started working in a hostel, initially with a walking stick. She said she suffered some discomfort from having to wear shoes due to her allergic reaction, but said she otherwise managed. While she was working, Silver Chain arranged carers for Manny at no cost to the plaintiff. 165 In September 2002, she had an operation to remove the hardware in her ankle except for one pin. She said she was unfit for work for a period of time, but believed she took holidays for a couple of weeks. She said that this operation caused a bit of stress at home and she also suffered some pain for a few weeks. 166 Meanwhile, Manny's condition had deteriorated and he was put into Sir Charles Gairdner Hospital. The plaintiff was still managing to do her own housework, but Silver Chain came once a fortnight to do the substantial cleaning. 167 In December 2002, Manny was placed back into her care. Apparently, when the plaintiff accompanied Manny to a session with his psychologist, the psychologist said that the plaintiff also had some issues that needed to be addressed. The plaintiff saw the psychologist for a couple of months but then stopped as she could not afford it. She went back again when she could afford it. 168 The plaintiff said that initially she suffered pain if she walked for more than 10 minutes, or moved in unusual ways or in confined spaces. She said she would get shooting pains up her heel radiating to her knee like a razorblade, with a lot of aching and a lot of swelling. She said it depended on what she was doing and it did not happen every day. She would get similar pains if she stood still for too long. She said that she did not sleep very well and sometimes woke up with pain or cramps in her
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foot. She did not wake up every night, but sometimes woke up more than once from the pain. 169 The plaintiff said that when she first woke up her foot would be stiff, particularly if it was cold. She said her exercise programme could be quite painful at times. 170 The plaintiff said her pain levels varied depending on what she was doing and the weather. She said in extreme heat her legs swell and in extreme cold her foot aches. 171 She said she sometimes had problems with physical pain when she was working, such as when they had to take patients out on excursions or she had to do jobs involving more than half an hour standing or walking. She tried to structure her work so that she was working within her limits. 172 She said she was not studying now as she had deferred study last year after getting her certificate 4. However, she said she wants to complete her diploma.
Employment 173 Up until February 2003, the plaintiff continued to work at Anglican Homes. She then started her business with clients that she had been seeing privately in her home while working with Anglicare. She said that she was practising on those clients for only a small monetary gain. 174 The plaintiff explained that her business involved massage, ear canal work, facials, body exfoliants and hand manicures. 175 In August 2004, the plaintiff entered into a contract with "Rejuvenators", a company that provided massage services to four and five star hotels. Therapists such as the plaintiff were rostered on at times they were available to work. When Rejuvenators got a call from a client, it would contact a therapist and give them the job. For an average massage, Rejuvenators charged $85, of which the therapist got $40. Some services were charged at higher rates if they took longer to perform. In general, the therapists got slightly less than 50 per cent of what the client was charged. 176 The plaintiff said there were four or five occasions when she was unable to accept an assignment and referred it to a friend called Elky. 177 She said she believed she could earn $2,000 to $2,500 per month from Rejuvenators, which would require roughly 60 massages per month.
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178 The plaintiff also said she had an arrangement with Thomas Scott Hostel in which she saw three to four clients a week for a total income of $75 to $100 per week.
179 The plaintiff said she was originally working five days a week, occasionally six. When she had quiet periods, she would study. 180 She said before she got the contract with Rejuvenators, she was doing about one or two massages a day, to a maximum of three, three days a week. Occasionally she would work on other days. 181 After she got the contract with Rejuvenators, she said she was doing four to five massages a day. However, the tables that were tendered in evidence told a different story. They indicated that, since commencing the contract with Rejuvenators, the plaintiff usually did only one massage a day. She rarely did more than two or three. The tables were prepared from the plaintiff's own records and tendered by her as accurate representations of the work that she had done. Accordingly, I would prefer the evidence of the tables to that of the plaintiff. 182 Most treatments provided by the plaintiff took an hour, but some could be done in half an hour. 183 She said 90 to 95 per cent of her work time was spent in massages that had to be done standing up. However, she did acknowledge that she could sit down for parts of those massages, when massaging the scalp and feet. 184 When asked what percentage of her work required her to be standing, she said it would be up to seven hours plus. However, after this was explored, it seems that the most she ever did of standing work was five hours and fifteen minutes on 26 December 2004. Further, the tables tendered during the trial indicate that the average was significantly less than that. 185 She said that since she had obtained a contract with Rejuvenators, she had let her own business drop a bit. She had stopped advertising and did not plan to renew the lease. She intended to do any non-Rejuvenators work from home. She said that her business was not viable as she had been lied to by the agent as to the amount of referrals she would get and as to the number of previous customers. She agreed that, on its own, the business would not show much of a profit, if any.
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186 In the first year she had made a loss. In the second year, she was going to make what would be very small profit. However, when her lease expires, she should make more of a profit.
187 She said she was able to survive financially as she was on a carer's payment and carer's allowance. She estimated it was approximately $14,000 per year. She expected that it would be cut off in the next financial year. 188 She said Manny got a disability pension of about $470 to $500 a fortnight and she would sometimes pay for things when he could not afford it. 189 While she worked, Silver Chain provided care for Manny three times a week for five to six hours each time. In total, it was 22.5 hours per week. She said she donates $40 per month to Silver Chain in return. She said she also had a private carer she could use, at $15 an hour. She conceded that the need to care for Manny did limit her availability to take work. 190 She said she decided to leave the occupation of diversional therapist because it was poorly paid and not recognised by the Government. She also said she was "pretty much burnt out" from it. She became upset when describing how living with a partner who had disabilities and working with people who had disabilities did not give her a break. 191 She said that she loved working as an aroma-therapist although admitted she did get a little bit stressed. 192 She said she would like to work until she was 70 because she could not afford to do otherwise. She said her superannuation would not be sufficient to allow her to maintain her lifestyle. 193 The plaintiff said her plan was to work full-time and that that had always been her intention. However, in cross-examination, she agreed that she had not worked full-time since sometime before 1986. Since then, she had worked 25 to 27 hours a week.
Present restrictions 194 The plaintiff claimed that before the accident she was walking 40 to 60 minutes almost every day. She said now she could only walk for a maximum of 20 minutes and she had problems with uneven ground (due to a fear of falling over and rebreaking her ankle). She said she also had
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problems walking up and down hills and after a while her foot would get stiff and uncomfortable. 195 She said she was now unable to continue ballroom dancing, which she had been doing for up to six nights a week since 1994. She said she cannot wear high heels and she needs those to be able to pivot. She says she is only able to do slower dances. 196 She said that she can no longer do renovation work. She said she used to do a lot of renovation work, including painting and tiling. She described having tiled numerous rooms in various homes. She explained the reason she could not tile now was because spending extended periods of time on the floor causes her foot to get stiff. 197 She said that she can no longer use a shovel when gardening and has problems when she kneels for any length of time. She said that is because she cannot get up like she used to be able to do. 198 She said she has difficulties with stairs and now always uses the rail.
Psychological impact 199 The plaintiff said she suffered psychological effects from the injury, including anger, stress, upset, depression and anxiety, nervousness, irritability, a lack of tolerance, sleeping difficulties and "comfort food" eating. 200 The plaintiff said she was getting angry in situations at home. She said she got angry, upset and depressed at not being able to manage Manny the way she used to be able to. 201 The plaintiff said her stress related to the Court case, Manny, and juggling work and study. She later said it was also caused by the pain she was in. 202 She said that she gets tremors in her hands and suffers from panic attacks. The plaintiff said she is not as rational and her memory is not as good as prior to the accident. She said she suffered those symptoms when her pain level had been exacerbated and, because she would have to deal with her partner, she couldn't sit down and rest when she needed to. 203 The plaintiff showed three scars on her foot. She also gave evidence about the amount of travel she was required to do to attend her various appointments.
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204 She referred to the thyroid deficiency which she believes was caused by the stress she was under. She said that, in turn, caused the eczema.
205 She agreed she was able to manage the work at Thomas Scott. However, she said she could because she was not on her feet all the time and they understood what her limitations were. 206 She was asked about her symptoms of tiredness and lethargy and she agreed that her hypothyroidism was the cause of those symptoms and that that had been treated.
Medical evidence 207 Mr Collopy is a specialist orthopaedic surgeon who supervised the plaintiff's recovery at Royal Perth Hospital immediately following the injury and subsequently performed the operation which removed the hardware from her ankle on 10 September 2002. 208 Mr Collopy provided two reports. The first was dated 17 March 2003. In that report, he indicated that the plaintiff had made an excellent recovery from the injury and had regained full movement of the ankle joint after the initial operation. 209 He said that after the second operation (to remove the hardware) she had regained a full range of movement within two weeks. 210 In his second report of 8 June 2005, Mr Collopy noted signs of very early post-traumatic arthritis developing within the ankle joint. He said he believed that the plaintiff would go on to develop post-traumatic arthritis over the next 5 to 10 years. He said her ability to spend long hours standing on the foot had been compromised "according to her". He believed she would be able to work as a massage therapist indefinitely but that her working capacity may be restricted as a result of the foot condition. He estimated that her capacity was about 75 to 80 per cent of full capacity. 211 Mr Collopy said that he was estimating that percentage on the basis of a 40 hour week. He also made it clear that he was talking about the ability to stand without a break. That qualification is particularly significant in light of the fact that the plaintiff is able to take breaks during a massage when she massages the head and the feet and she also drives from most appointments to the next. 212 Mr Collopy pointed out that the effects of arthritis on a person vary greatly, depending on a number of variables. However, he said the usual
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effects are activity related pain and stiffness. He explained it was a "wear-and-tear" form of arthritis, so the more time that the joint was used, the more pain a person would be in. 213 Mr Collopy estimated that in five years time the plaintiff would have at least 50 to 60 per cent capacity. 214 He anticipated that 10 years from now she would have some stiffness and pain but would still be able to work. 215 He said that she might be assisted by orthodics, anti-inflammatory tablets and glucosamine. She also might be assisted by a Cortisone injection once or twice a year for a few years. It might also assist her to do physiotherapy exercises. In order to learn those exercises, she would need six to eight visits to a physiotherapist and then a few visits every year after that to renew the knowledge. However, the plaintiff gave evidence that she didn't need to go to the physiotherapist, due to her own training. 216 He assessed her permanent loss of function as being a mild permanent restriction of motion with a loss of 10 per cent of function below the knee. He said the percentage was a guess and was intended to represent mild post-traumatic arthritis with mild persisting symptoms. 217 He said it was unlikely the plaintiff would ever need major surgery. He said there was a less than 30 per cent chance she would need an arthroscopy in the next five years (and there would be less chance after that as activities reduce with age). He said that there was a less than 10 per cent chance, indeed "an extremely low" chance, that the plaintiff would need a fusion or replacement. 218 Mr Robinson, an orthopaedic specialist, also gave evidence. He had seen the plaintiff at the request of her lawyers for the purposes of providing a report. 219 Mr Robinson said that the plaintiff had said she had difficulty standing for lengthy periods, walking for a long period of time and that she would have to give up dancing. He said that her disability would impinge on all of those things. He said four to five hours would be a long enough period for the plaintiff to experience symptoms. 220 He said that by the time he had seen her in May of 2005, her permanent residual disability was 10 to 12½ per cent. That put it in the moderate range.
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221 He said presently her arthritis was mild. He anticipated it would get worse in the next 10 to 15 years. If it did, her disability would be in the 15 to 20 per cent range, which is severe, depending on her symptoms and signs. If it got to that level, she would be able to walk only 5 to 10 minutes at a time, and would have more problems with stairs and uneven surfaces.
222 Mr Robinson recommended that the plaintiff get inserts in her shoes. He said that one of her feet goes out when she walks, which may be causing some of the pain. 223 He said there was about a 5 per cent chance she would require a fusion or replacement. He said an arthroscopy was more likely than not, and later said about 50 per cent. He said his findings were based on what he was told, supported by the x-ray and clinical signs. 224 It was evident that there was little disagreement between Mr Robinson and Mr Collopy. However, where there was disagreement, I would prefer the evidence of Mr Collopy. Mr Collopy has had a far greater involvement with the plaintiff's injury, supervising her initial recovery and performing the subsequent operations to remove the hardware. By contrast, Mr Robinson has seen the plaintiff only twice, and each time for the purpose of providing a medico legal report. He saw her for the first time on 23 March 2004. |