Robertson v Proprieters Points North Building Units
[2000] QDC 337
•26/10/2000
DISTRICT COURT OF QUEENSLAND
CITATION: Peter Noel Robertson v. The Proprietors Points North
Building Units Plan No. 10777 and Fidagu Pty. Ltd. [2000]
QDC 337PARTIES: PETER NOEL ROBERTSON THE PROPRIETORS POINTS NORTH BUILDING UNITS
PLAN NO. 10777FIDAGU PTY. LTD. FILE NO/S: 00/1719 DELIVERED ON: 26/10/2000 DELIVERED AT: Brisbane HEARING 18, 19, 20, 21 September 2000 DATES: JUDGE: Skoien S.J.D.C. ORDER: CATCHWORDS: COUNSEL: Morgan for plaintiff
Howe for first defendant
Morrow for second defendantSOLICITORS:
| [1] | This is an action for damages for negligence, or breach of contractual duty by the defendants causing the plaintiff to suffer personal injury. |
Facts
The first defendant (“the Proprietors”) is the registered body corporate of “Points North” an apartment building on Marine Parade, Coolangatta. The second defendant (“Fidagu”) was at the material time the building manager of Points North.
Points North faces north onto Marine Parade and is bounded on its western and southern sides by Dutton Street and Griffith Street respectively. On its eastern side it adjoins other commercial development. Towards the northern end of the site and facing north is the tower block which contains apartments. The entire balance of the site is covered by two built levels, the lower of which contains, among other things, the entry foyer, on Dutton Street. On level 2, is a large recreation area. A small portion of this recreation area is on the northern or Marine Parade side of the tower block. On the eastern side is a raised mezzanine level. To the south of the tower block is the main recreation area which measures about sixty metres by sixty metres. It contains a tennis court, a pool, a spa, a sauna, lawns and gardens as well as a few free standing structures, for example, a roofed barbecue area. At night the court is lit when needed and there are lights for the pool, the barbecue area, the sauna, the spa as well as for the garden area generally. There are four emergency exits from the recreation area down to the street level. One is on the southern wall of a free standing building to the west of and level with the middle of the tennis court; a second and third are at the southern end of the recreation area, to the south of the pool and spa; a fourth is on the mezzanine level in the north eastern corner of the deck. The former three had illuminated exit signs, the fourth did not. There were no signs pointing to the exits nor any displayed plan showing their whereabouts.
At about 10 p.m. on the night of 10 September 1993 the plaintiff fell from the recreation area, at a point near the south western corner of the tower block, onto the roof over the entrance foyer which projected somewhat into Dutton Street (that is, he fell from the second level to the first level) and injured himself.
At the outset, I record that I accept the plaintiff as a truthful witness. He was in the witness box for a lengthy period and I formed a favourable opinion of his honesty. Interestingly, my opinion is shared by Mr. Hurley (called by the proprietors) who was a former employer of the plaintiff and the only witness who really knew him. I cannot accept that any seeming inconsistencies in, for example, his answers to interrogatories, point to lack of honesty or inability to recall important details accurately. I think any such inconsistencies more likely reflect misunderstood instructions or careless drafting.
On 6 September 1993 the plaintiff with his wife and young children had arrived on the Gold Coast from Victoria. The plaintiff, then a thirty-two year old man, was profoundly deaf from a degenerative condition which first became apparent when he was aged ten. His wife suffered from schizophrenia, a condition which first became apparent a few months before the birth of their second child in September 1989. Since then their marriage had been under severe stress and in fact Mrs. Robertson had left the plaintiff on two occasions, each time abandoning the young children to his care. The trip to the Gold Coast was to be a holiday but they were also looking to make a new start in Southern Queensland.
The plaintiff and his wife and family were shown an apartment on the sixteenth level which they decided to rent. They were also shown the recreation area on the second level. They were conducted on this inspection by Mrs. Beutel, who, with her husband, were the directors and shareholders of Fidagu. The plaintiff paid a week’s rent and received a receipt.
During that inspection I think it probable that Mrs. Beutel mentioned the “pool hours” as being between 7.00 a.m. and 9.30 p.m., but I am not prepared to find that she told them that the pool was “locked” at 9.30 p.m. In her evidence she used the words “closed” and “locked” interchangeably. She was called as a late, unopened, witness at the very end of Fidagu’s case and I am sure she was then aware of the relevance of establishing that the plaintiff had been informed that at 9.30 p.m. each night the access door to the recreation area was locked. In those circumstances a process of reconstruction, albeit an innocent one, could be expected. Furthermore, the relevant answer by Fidagu to an interrogatory disclaims the giving of any warning about the locking of the pool area, merely that he was provided with notice about the pool hours. The plaintiff was not cross-examined about any information given to him by Mrs. Beutel on that occasion. Nor was Mrs. Beutel asked whether she knew the plaintiff was deaf at the time, and if so, what steps she took to ensure he understood what she said. He was a skilful lip-reader but anything Mrs. Beutel said to him when he could not see her lips (for example if she was preceding him) would have been lost on him. So I find that he was never warned about the locking of the access door to the recreation area.
The unit the plaintiff and his family rented had in it a directory which contained a reference to the pool hours but a copy was not tendered nor was any evidence given of precisely what it said on the point. There is no evidence on which I could find that the plaintiff should have read that part of the directory, or that he actually did. There was a sign near the main access door to the recreation area which read “Pool Hours, 7.30 a.m. to 9.30 p.m.” The plaintiff said he did not see that sign and did not know the pool hours. I accept that evidence. In the days between 6 and 10 September he used the pool once, in daylight hours, without incident.
On 9 September he arranged, through the Commonwealth Employment Service, a job interview at a chicken butchery and on the following day, 10 September, he heard that his job application had been successful. He told me that, allowing for time to have his belongings sent up from Melbourne, he intended to start work in that job within a week. After sharing the good news with his wife he left her and the children to have their afternoon sleep and went for a walk. Then he went to a hotel. While his recollection of the situation of the hotel is now confused, I am satisfied that the hotel he visited was the Coolangatta Hotel. There is no satisfactory evidence that he drank at more than one hotel that afternoon. He said that he was at the hotel between about 1.00 p.m. and 6.00 p.m. during which time he drank four glasses of beer and two soft drinks. He then bought a bottle of champagne and took it back to the apartment where he and his wife each drank a couple of glasses of the champagne, ate dinner, fed the children and put them to bed. The plaintiff decided to go for a swim. It was then about 8.15 p.m.
Mr. Chambers, the cleaner at the hotel, gave evidence that he saw the plaintiff at 4.00 p.m. (when he noticed nothing of significance about him) and again at 6.00 p.m. when the plaintiff was having a heated oral altercation with the bar attendant, who had refused to serve him another drink. The manager came and escorted the plaintiff to the door. Mr. Chambers said the plaintiff was “a little bit unstable on his feet” when he left. Unfortunately those details were not put to the plaintiff in cross- examination, merely that he was asked to leave the hotel because of his state of intoxication, a proposition he denied. At about 10.45 p.m. Mr. Chambers was summoned by a co-worker, Mr. Spinks, to the entrance of Points North on the roof of which the plaintiff was lying, injured. Mr. Spinks, Mr. Chambers and others attempted, unsuccessfully, to converse with the plaintiff who became agitated and angry. Finally Mr. Chambers went to telephone the ambulance. The ambulance records state that the call was received at 11.21, so the period during which the group on the footpath observed the plaintiff and attempted to talk to him was probably considerably longer than the ten minutes estimated by Mr. Chambers.
It seems likely to me that the plaintiff cannot now remember some events of the afternoon and evening of 10 September 1993 relating to the circumstances of his leaving the hotel. Nor can he now recall the details of his behaviour when lying, injured, on the roof of the entrance to Points North later that night. That is not remarkable. The hotel at 6.00 p.m. was crowded and noisy. The bar attendant would probably not know that the plaintiff was deaf and could easily have misinterpreted his actions and reactions. I thought that his speaking voice has an unusual tone and is somewhat slurred, which again would be susceptible of misinterpretation. She might well have thought him intoxicated, or unpleasant and if she refused his drink order he might very well get angry at the injustice of it. I do not think any conclusion adverse to the plaintiff’s state of sobriety, can be drawn from his being “a bit unstable on his feet” when leaving a crowded hotel. As to the later events when he was lying injured, a combination of the extreme pain and the apparent lack of action, over quite a lengthy period, of the several people whom he could see but not hear, could well have caused him to lose control and behave inappropriately, apparently aggressively. However I am not prepared to act on these conclusions to make a finding that at any material time he was adversely affected by liquor to the extent that his mental or physical powers were so degraded as to prevent him exercising reasonable care for his own safety.
There are two doors that could be used to gain access from the tower block to the recreation area. One is to the south east of the tower block. From the lifts it is reached by turning to the right, then right again, passing the door to the manager’s apartment, and entering the gym. The door in question is an external door from the gym and leads out to that section of the recreation area on which the pool, the spa and the sauna are located. Another identical door which opens from the games room (which can be reached after turning left from the lifts and proceeding down a corridor) is to the south west of the tower block and it leads out to the area on which the tennis court is located. The plaintiff is not sure which of those doors he used but it was not suggested that anything turns on the point. The former door is closer to the pool but the pool can easily be reached from the latter door.
The plaintiff had a spa bath while he waited for a couple to leave the pool, and then did twenty laps of the pool. He also attempted to use the sauna but found it too hot. He used the spa again a couple of times. It is probably that he spent some considerable time in the spa and it may be that he dozed off. At any event, he seemed to pay little attention to the lapse of time. At some stage he noticed a reduction in the lighting, but nothing dramatic. He then decided to return to his apartment but on reaching the access door through which he had earlier passed, he found it to be locked.
At first he was undecided what to do. It crossed his mind that someone had played a practical joke on him so he waited for a while. He saw an apartment (to the south west corner of the tower block) which had lights on and he looked in those windows but saw no one. This was not the manager’s apartment, it being on the other corner of the tower block, the south east corner. He paced up and down the wall of the lit apartment “quite a few times”, he tapped on the window “a few times”. He checked the door he had used to gain access to the recreation deck five or six times. He looked up to see if there were people on balconies he could summon help from. He felt cold and put his clothes on over his swimsuit and also jogging shoes. He saw some people on Dutton Street but they were on the far side of it and, it seemed to him, too far away. He also felt rather inhibited by the embarrassment of his situation. He walked further to the south west of the tower block, near Dutton Street and came on a lattice gate, about seven feet high, which extended from the wall to a post attached to the parapet wall of the deck. Judging from the photographs that wall stood a little less than a metre high and along the top of it and about fifteen cm. above it ran a tubular metal pipe. That pipe seems to be about ten to fifteen cms in diameter. During his movements after he decided to go back to the apartment, and indeed at no earlier time, he had seen no exit sign. He was not aware of the existence of any of the exits referred to in para [3].
The plaintiff is not sure what went through his mind at this stage, but I am satisfied I understood what he tried to explain to me and what most probably occurred. He wanted to attract attention to his plight and thought that someone could be on the other side of the gate in what he thought was probably a private area. He was reluctant to trespass on that area for fear of alarming any person who might be there. So he was not actually wanting to pass through the gate and this, no doubt, was why he did not notice that it could easily be opened by operating a barred bolt. He also wanted to get a better view of Dutton Street, particularly of people who might be on the closer footpath. So he climbed onto the wall, then onto the pipe and, holding onto the post with one hand (presumably his right) he leaned out. He saw nobody, so he turned to go back. His foot slipped off the tubular steel pipe and he fell. He was able to grab hold of the pipe and briefly clung onto it, but lost his grip and fell to the roof of the projecting entrance on the ground floor, breaking his right ankle (a compound fracture) and a bone in his left foot as well. The pain was immediate and intense. His feet swelled so he removed his shoes to reduce the pain a little. After some considerable time (during which Mr Chambers and others congregated on the Dutton Street footpath and did nothing more useful than to call out questions to him, which he could not understand) the ambulance and fire brigade were summoned, he was carried to the ground and thence to hospital.
I have found that the plaintiff was not actually aware that the “pool hours” were from 7 am to 9.30 pm, and moreover had not been told that the pool was locked at night. But of more importance and relevance is the fact that he was never made aware that the entire recreation area would be locked at 9.30 pm. It seems to me that even if a tenant had information that “pool hours” were 7.00 am to 9.30 pm, that person might well simply take it that those were the hours the pool could be used, the curfew being imposed to prevent the making of loud noise which seems to accompany pool use. It would not necessarily serve as an injunction against other use of the recreation area even, perhaps, to relaxing beside the pool area.
He did not that night see any of the exits, nor was he otherwise aware of their presence. The only one he could physically have seen from any position he occupied that night in the pool and spa area was the one on the southern wall of the free standing building near the mid-point of the tennis court. But that was on the other side of the court from the pool and spa and it faced south. So he would be looking predominantly at the side of it if he looked in that direction. There was no evidence which would satisfy me that it should have been visible to a person in the area the plaintiff occupied. Mr. Murphy, the Points North maintenance man said that it was clearly visible from the pool area but he also said “If you can see the door, you can see the sign” and I cannot accept that the door would be clearly visible to someone in the pool area, considering the distance from which and the angle at which the viewer would be from the sign.
The fact is that the plaintiff did not see that exit nor any other, and that is not really surprising because at the time he was in the pool area he was not looking for an exit. He first became aware of the need to find some way off the recreation area only when he realised that he had been locked out. At that time he was at the back, or southern, wall of the tower block. His search for a possible exit was concentrated along that wall, particularly to the western end of it. That is perfectly understandable to me. The tenant of a building, on finding the ordinary entry door locked would reasonably expect that if there were some alternative means of access to the tower block in which the apartments are located, it would be in the wall of the tower block or near to the tower block. Alternatively he would reasonably think that people who might assist him would be in that vicinity. I consider that the idea of walking more than twenty metres away from the tower block would occur to the tenant only after the earlier investigations had proved fruitless. Furthermore, he said he was reluctant to leave the vicinity of the tower block in case someone came to the door while he was away, and that to me was an understandable attitude.
Liability
The proprietors owed a duty in tort to the occupiers of units to take reasonable care to prevent a foreseeable injury to them when on the common areas. They were aware that Fidagu (Mr. Beutel) locked the doors to the recreation area at 9.30 p.m. That was set out in a management report from Fidagu to a meeting of the proprietors dated 19 February 1993. The minutes do not record any instruction from the proprietors relating to the precautions to be taken by Fidagu to ensure that no person lawfully entitled to be on the area would be locked out. Such an instruction should have been to look to see if anyone was in the pool, spa, sauna and the lavatories. Indeed it could have been to carry out a careful patrol of the entire recreation area. It is a large area and has a number of different levels as well as structures and shrubbery which could conceal a person who might, for example, be at one of the perimeter walls enjoying the night views. Not all entrants on the large recreation area would necessarily be there to enjoy the pool, the court or the barbecue. So the possibility of a person being locked out would not be remote or fanciful.
The proprietors could easily have put a sign at each door saying, for example, “This door is locked 9.30 p.m. – 7.00 a.m”. They could also have provided some sort of physical assistance to a person who was locked out. Press button intercom systems have been commonly used for many years. Tenants could be given a key. Simplest of all would be a sign on each of the doors, facing outwards saying, for example “If this door is locked use an Exit”, with a plan showing those exits. While an intercom might be expensive given the relative risk and giving a key might not always be practical, the suggested signs and plan would be cheap and practical. I note that the minutes of a meeting of the proprietors dated 26 November 1992 (when Mr and Mrs Beutel were managers in a private capacity) empowered Mr Beutel and a proprietor’s representative “to determine and install appropriate common area usage signage”. So it was a matter to which both the proprietors and Fidagu ought to have paid attention.
It is obvious that the plaintiff was on the recreation area when Mr. Beutel locked the two doors to that area. It is not possible to be certain precisely where by the plaintiff was at that critical time. It is most likely that he was lying in the spa, and because he did not notice any activity occurring, it is likely that he was dozing. I accept that Mr. Beutel walked through the area, at about 9.45 p.m. and turned off some lights, but it is an inescapable conclusion that somehow he failed to see the plaintiff. It is an inescapable conclusion that his inspection that night was less careful than it should have been. He had been made aware of the proprietors' concerns about late use of the pool. He was at least fifteen months late that night and might therefore have cut corners. It is clear to me that Fidagu was negligent through the failure of Mr. Beutel to look adequately, and also to warn (either orally or by the provision of an adequate sign) that the access doors to the recreation area were locked at night and in that event to advise the means of escape.
It should have been reasonably foreseeable that a person who is locked out of his accommodation at night might well take physical risks to extricate himself. It would not be such a small risk, when weighed against the simplicity of the steps which could be taken to avoid it and the possible consequences, that the proprietors or Fidagu could ignore it (cf. Jaenke v. Hintour (1995) Aust. Torts Reports 81-368. The display of signs which I proposed in para. [21] would be a simple response to that possibility as, of course, would a proper search on the part of Fidagu. In conducting that search it was common ground that Fidagu would be acting as an independent contractor and the proprietors would not be liable for any breach of Fidagu’s duty to search.
I have been assisted in deciding that the risk was reasonably foreseeable and that the proprietors and Fidagu had a duty of care which each breached by the decision of the High Court in Caterson v. Commissioner for Railways (1973) 128 CLR 99 in which the facts were rather similar to these. Caterson, with his fourteen year old son drove a friend to a railway station to catch a long distance train. He carried the friend’s luggage aboard, leaving his son on the platform. Before he was able to leave, the train began to move. He elected to jump from the train (which was not by then moving very fast) and was injured. A jury’s verdict for him was set aside by the Court of Appeal and the High Court reversed that decision. At p.108 Gibbs J. said:
“With great respect, I am unable to agree that no reasonable jury could find that it was foreseeable that a person other than a passenger, who had found himself on an express train which started to move off without warning, might jump from it, even though he was in no danger by remaining on the train. It would of course be a very considerable inconvenience for anyone to be carried against his will to another town eighty miles away and in some cases the person on the train would have an additional strong reason to wish to avoid being so carried, as for example, if he had left a helpless child on the platform or a sick wife at home. A jury could in my opinion reasonably consider that a person on an express train faced with such a possibility might attempt to leave the train, particularly if it had not yet picked up speed. It is true that the safer course in such a situation would be to pull the communication cord, if one were provided, but people do not always choose the safer course and it was foreseeable that a person wishing to get off the train might try to jump off it while it was moving, because he thought that the speed of the train enabled him to do so without risk of injury, or because he wished to avoid the embarrassment of pulling the communication cord and for that reason was prepared to take a chance of injury, or simple because in the heat of the moment it seemed to him the only thing to do.”
It must be said the statement of claim does not expressly allege the duties and breaches against the defendants which I have found. However I consider that the pleading is wide enough to encompass them. No further and better particulars were placed before me which narrowed the issues.
| [26] | The court in Caterson declined to alter the original verdict of the jury that Caterson had not himself been negligent. At p.111 Gibbs J. said: |
Where a plaintiff has by reason of the negligence of the defendant been so placed that he can only escape from inconvenience by taking a risk, the question whether his action in taking the risk is unreasonable is to be answered by weighing the degree of inconvenience to which he will be subjected against the risk that he takes in order to try to escape from it – cf. per Lord Evershed M.R. in Sayers v. Harlow Urban District Council [1958] 1 W.L.R., at p.626.”
Like Caterson, the plaintiff found himself inconvenienced. They also shared an awareness of family responsibility, Caterson to his son, the plaintiff to his mentally unstable wife and to his children, who might be expected to be worried at his absence. However while Caterson, had he remained on the train, would have been physically comfortable, the plaintiff was not. He was cold and exposed to the elements. Then, they shared the embarrassment of the stranded person. Caterson elected to step off a train moving “not very fast” rather than, for example, to look for and pull the communication cord; the plaintiff elected to explore his possibilities. He did not, it must be remembered, elect to try to scale down the outside of the building; he simply stood on a convenient high point, holding onto a secure post. Having looked and seen no avenue of escape or means of gaining help, he went to return to the recreation area deck. In doing so, his foot slipped and he fell. Just what caused that and precisely how it occurred does not appear. Perhaps there was something slippery on the pipe, perhaps it was the shape of the pipe itself, perhaps he did not put his foot, or keep his foot, squarely on top of it.
In retrospect, with the advantage of hindsight and leisurely consideration of the options, the plaintiff might have acted otherwise. Is it, however, proper to conclude that in the circumstances that prevailed he was careless of his own safety in climbing up on the pipe and then attempting to turn back. It was not an inherently dangerous thing to do. But after careful consideration it seems to me that there was an element of lack of reasonable care in these actions. He was not face, as was Caterson with the realisation that his chance of escape was reducing as the train increased speed. The plaintiff, though anxious, embarrassed and somewhat distracted, should have placed his feet carefully. It is obvious that he did not. Nevertheless his lapse of care was minor in the overall circumstances and I place his responsibility at only 20%.
The plaintiff’s alternative claim against the proprietors for breach of implied contractual duty can be mentioned briefly. The proprietors implicitly warranted to the plaintiff that the premises were as safe for the purpose of recreation in the recreation area as the exercise of reasonable skill and care could make them (Calin v. Greater Union Organisation Pty. Ltd.) (1991) 173 CLR 33). That imposed a duty at least as arduous as the tortious duty which I set out in para [20], and the proprietors breached it in the manner set out in paras. [20] and [21]. However, no one suggested to me that different consequences would flow from a breach of contract, at least not if liability in tort was established.
The proprietors and Fidagu have exchanged notices claiming contribution. While each was guilty of negligence (shared so far as the failure to erect warning signs and plans showing the exits) it seems to me that the act of negligence most causative of the plaintiff’s injury was the failure of Mr. Beutel (Fidagu) properly to search the recreation area before locking the doors. I assess their relative faults as 75% against Fidagu and 25% against the proprietors.
Quantum
The plaintiff was born on 8 April 1961. He left school after year nine and became an apprentice butcher, a four year course, which he successfully completed. He worked as a butcher, on and off, between then and 1993 and estimated that cumulatively he has been in that occupation for about three years. He has also been employed in a family building, contracting, and demolition business for varying periods during which he obtained his operator’s licences for earthmoving equipment and articulated vehicles. He also worked for another demolition company for about two years. Otherwise he worked as a truck driver and that was the occupation he last carried on before his move to Queensland in 1993.
His working life between leaving school and the date of his injury does not seem to have been adversely affected by his severe deafness. It was, however, interrupted by his wife’s schizophrenia and the two occasions on which she abandoned him and the children which I touched on in para [6]. He was married in 1986. The three children were born in 1988, 1989 and 1992. Mrs. Robertson left on two occasions in 1989 and 1992 each time for about nine months. On these occasions he had to give up work to care for the children but on the first occasion he took the opportunity to complete a year-long TAFE course in youth welfare. She finally left him and the children in 1994 and they have had contact since. The overall picture depicted by his history is of a man more than willing to work despite the intervention of misfortunes which might crush less resilient personalities.
The plaintiff was taken to hospital where fractures of the right ankle and the left calcaneus were diagnosed. He also had minor pain in the left wrist. His right ankle was too swollen to be operated on and he had to be treated with bed rest for five days. On 16 September he underwent an operation by Dr. Freeman of open reduction and internal fixation of the right ankle as well as manipulation of the left calcaneal fracture. He was discharged four days later, and remained with both legs in plaster for about two months. He then used crutches for six months. On 4 November 1994 he was reviewed by Dr. Freeman who noted that the ankle fracture was well united but there was evidence of early post-traumatic arthritic changes. There was stiffness of the ankle on dorsiflexion. The plate and screws were removed from the right ankle by Dr. Freeman on 21 November 1994.
On 31 December 1996 Dr. Freeman examined the plaintiff again. The complaints were of pain in the right ankle which tended to swell frequently. The left foot also had some pain in it. The doctor considered that the plaintiff was experiencing a relatively rapid progressive post traumatic arthritic right ankle which would deteriorate until an arthrodesis of the joint could be called for. That would leave him with a 30% disability of the right leg which would make him unsuitable for work requiring prolonged standing or walking. The left leg had a minor (2%) disability arising out of the left heel hyper-sensitivity.
In October 1997 Dr. Boys, another orthopaedic surgeon estimated that the right leg then suffered a 25% impairment of function because of the post traumatic condition and would probably call for an arthrodesis within a further five years. Thereafter he too thought the disability would be about 30% of the right leg. The operation would require about three months in plaster and a further four to six weeks of use of a walking stick. While the plaintiff was then unable to carry out any of the jobs he had been trained for and which he carried out in the past, Dr. Boys thought that after a successful arthrodesis he could work as a butcher, a truck driver or plant operator, or as a welfare worker. He too assessed the left leg disability, from the heel, at 2%.
Dr. Boys saw the plaintiff again in April 2000. He complained of daily right ankle pain and swelling of the foot. He could walk comfortably even on flat ground, only for 15-20 minutes. Rough ground made walking more difficult and he had trouble with slopes and stairs. Dr. Boys considered that an arthrodesis was desirable to relieve the pain (but leaving a 30% leg disability) after which his physical disability would not prevent work as a butcher, truck driver or plant operator, albeit with some loss of agility. He could carry out sedentary work.
The opinions of Dr. Freeman and Dr. Boys are very similar and I accept them. A report by Dr. Gibberd, another orthopaedic surgeon was tendered and it broadly agreed with those two doctors except on the assessment of a percentage disability for the right leg which is quite out of step not only with Dr. Boys and Dr. Freeman, but with many opinions I have seen in the past for comparable conditions. I prefer the opinions of Dr. Boys and Dr. Freeman.
The plaintiff’s physical ability to work is complicated by the condition of tinnitus which, according to the report of Mrs Cole began to affect him in about late 1994. ear, nose and throat specialist, Dr. Hallam, in a letter dated 16 May 1995, referred to the plaintiff’s “dreadful tinnitus”. He suggested only the use of maximum amplification and referred to the possibility of a cochlear implant in the future. That had not been done as at the date of trial nor was it the subject of any expert evidence so I am unable to reach any conclusion on the effect such an operation might have o the tinnitus. I am not prepared to act on the evidence of the plaintiff that he understood it would permit him, for example, to use a phone, a fact which could have had serious consequences in any assessment of his employability.
The plaintiff made his way back to Victoria after his discharge from hospital, and after a couple of months he and his family travelled to northern New South Wales. During this time the pain and lack of mobility in his feet improved. In March 1994 he obtained a job as a sales representative for Sunshine Products, a health food company. He said that his duties, initially, required the taking of orders and he managed that well. However as time went by he was called on increasingly to make deliveries and this he found to be difficult. Some of the goods were heavy and getting them off the back of a truck hurt his right ankle. Ultimately, he said, the employer dismissed him in March 1995 because of his incapacity to manage the work.
On the other hand, Mr. Hurley, the proprietor of Sunshine Products, while conceding that the lifting of goods was a problem for the plaintiff, put at least equal emphasis on the difficulties caused by the tinnitus. He emphasised the personal qualities of the plaintiff’s pleasantness, honesty and popularity and agreed that he had built up the business, but said that the cumulative effect of the tinnitus and the leg disability caused the plaintiff to leave. He denied dismissing the plaintiff and said that the termination was arrived at by agreement.
I think it more likely than not that a combination of both conditions was the cause of the plaintiff’s loss of the job and that while the plaintiff was unhappy to go he did so because he could not properly continue while suffering from both conditions. I thought this was emphasised by him under cross-examination by Mr. Howe of counsel for the proprietors. He said:
“my mind was always thinking about pain and the tinnitus”,
and
“when I’m under pressure, the tinnitus seems to rage in my head. With the pain from my injuries, the workload that I was forced to take in, all combined all together, yes the tinnitus was distracting me from what I was doing.”
It seems to me more probable than not that had he been able bodied and suffering only from the tinnitus he could have continued and would have continued in the job. His tinnitus was bad and no doubt affected his concentration and happiness and it has continued to this day. But he sat in the witness box for a long time, having to concentrate on questions which appeared on a computer screen before him, sometimes at almost conversational speed and sometimes painfully slowly. That would have been trying to anyone’s concentration (and I dare say it was) but on my view of him he coped extraordinarily well while maintaining a calm and pleasant demeanour. I saw no lapse of concentration in him. On the evidence his lip-reading skills were good, and there is no evidence that they have deteriorated. His speech, while not normal in pattern and tone, is intelligible. No expert evidence was led by the defendants that the tinnitus alone would probably have disabled the plaintiff from performing the work he had managed so satisfactorily for a whole year in 1994-1995 and in fact my observation of him, as describe din this paragraph, suggested that he could even now conduct the business of taking orders and delivering the products quite adequately as long as he was orthopaedically able to do so.
| [43] | In Purkess v. Crittenden (1965) 114 CLR 164, the majority of the High Court said this (referring to the earlier judgment in Watts v. Rake (1960) 108 CLR 158):- |
“We understand that case to proceed upon the basis that where a plaintiff has, by direct or circumstantial evidence, made out a prima facie case that incapacity has resulted from the defendant’s negligence, the onus of adducing evidence that his incapacity is wholly or partly the result of some pre-existing condition or that incapacity, either total or partial, would, in any event, have resulted from a pre-existing condition, rests upon the defendant. In other words, in the absence of such evidence the plaintiff, if his evidence be accepted, will be entitled to succeed on the issue of damages and no issue will arise as to the existence of any pre-existing abnormality or its prospective results, or as to the relationship of any such abnormality to the disabilities of which he complains at the trial. It was, we think, with the character and quality of the evidence required to displace a plaintiff’s prima face case that Watts v. Rake was essentially concerned. It was, in effect, pointed out that it is not enough for the defendant merely to suggest the existence of a progressive pre-existing condition in the plaintiff or a relationship between any such condition and the plaintiff’s present incapacity. On the contrary it was stressed that both the pre-existing condition and its future probable effects or its actual relationship to that incapacity must be the subject of evidence (ie either substantive evidence in the defendant’s case or evidence extracted by cross-examination in the plaintiff’s case) which, if accepted, would establish with some reasonable measure of precision, what the pre-existing condition was and what its future effects, both as to their nature and their future development and progress, were likely to be. That being done, it is for the plaintiff upon the whole of the evidence to satisfy the tribunal of fact of the extent of the injury caused by the defendant’s negligence.”
So I accept that had the plaintiff not suffered from the orthopaedic injuries he would probably have been able to continue in employment with Sunshine Products, despite his complaint of tinnitus, there being no evidence to suggest the contrary. So the reason he lost his job in March 1995 was the aggravating feature of his deteriorating right ankle. He was earning, at Sunshine Products about $350 net per week, a figure I take from his tax returns, ex. 25 and 26. That calculates at an after tax loss of $127,400 over the period of about seven years from the date of the accident till now, less the net amount actually earned from Sunshine Products (about $20,000). I round that down, for contingencies, to $100,000. Interest on that at 5% for 32 years is $17,500 and past superannuation benefits lost (at the conventional rate of 7% of past economic loss) is $7,000.
Since March 1995 I accept that the plaintiff has been registered with the Commonwealth Employment Service but has not been placed in employment. That is not very surprising given the nature of his qualifications, his orthopaedic disability and the level of unemployment current over that period. The opinion of Mrs Cole, Dr. Boys and Dr. Freeman is that he was (as at June 2000) seriously disabled for occupations involving prolonged standing, walking, or agility in use of the feet, especially the right foot. After a successful arthrodesis (which is due and I expect the plaintiff to undergo once he gets the money to pay for it) he could work as a welfare worker but with some limitations. Any butchery would, I find, be limited to light work such as chicken butchery. Traditional butchery, involving standing, lifting carcasses and working in cold conditions would probably be beyond him. Working as a rigger, or crane driver or operating heavy plant would be beyond him. Work as a driver of light vehicles in which he would not be required to carry heavy loads or to climb up or down very much would probably be the most likely option for him. His hearing loss complicated by the tinnitus, while not on the evidence his major disqualification for employment, is still a fact which will reduce his chances of getting a job and the defendants must take the plaintiffs as he is.
I propose, without pretending that it is based on any fine calculation, to assess his present net weekly loss of earning capacity at $120 per week, or about a of what, on the evidence, he could earn net of tax. I consider that to be a conservative sum, in the circumstances. He is now aged 39, and could be expected to work for another 25 years again, a relatively conservative sum to reflect contingencies. Capitalised at 5%, that is $90,000 (rounded). Lost future superannuation benefits (at the conventional figure of 8% on the gross sum) is $7,200.
His pain and suffering to date has been substantial. The left heel hurts intermittently. The right ankle has given pain, increasingly, since the date of the accident. It pains and swells on prolonged standing or walking. Cold weather, bumping and load carrying or walking on uneven or sloping surfaces or on stairs aggravates the pain. It disturbs his sleep. He cannot play sport as he used to. After the arthrodesis, assuming it to be successful, there will be no pain but greatly decreased mobility. The operation itself will undoubtedly cause pain and severe loss of mobility for some months. I assess damages for pain and suffering and loss of amenities at $45,000, the past component of what is $30,000. Interest on that at 2% for seven years is $4,200.
Special damages are agreed at $8,965 and interest on that at $295. The cost of the arthrodesis is established at $4,200. The figure for Griffith v Kerkemeyer loss is agreed at $4,480 and interest on that is $630.
In total, damages are:
(a) Pain and suffering and loss of amenities $45,000
(b) Interest thereon 4,200
(c) Past economic loss 100,000
(d) Interest thereon 17,500 (e) Past superannuation benefits 7,000 (f) Future economic loss 90,000
(g) Future superannuation benefits 7,200 (h) Special damages 8,965
(i) Interest thereon 295
(j) Cost of arthrodesis 4,240 (k) Griffiths v. Kerkemeyer 4,480
(l) Interest thereon 630 $289,510
Conclusion
The plaintiff is entitled to judgment against the defendants in the sum of $231,608. I order the defendants to indemnify each other in respect of any sum paid to the plaintiff to satisfy the judgment to reflect a liability of 20% to the first defendant and 80% to the second defendant.
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