Rogers v Gold Coat City Council

[2000] QDC 382

IN THE DISTRICT COURT  NO:  682 of 1996

HELD AT SOUTHPORT

QUEENSLAND

[2000] QDC 382

Before J M Hanger  DCJ

BETWEEN:             IAN ROGERS

Plaintiff

AND:  THE GOLD COAST CITY COUNCIL

Defendant

REASONS FOR JUDGMENT – HANGER DCJ

Judgment delivered on the 9 day of June 2000

The plaintiff claims damages for personal injuries which he sustained in a fall on 4 August 1995.  The incident occurred in the vicinity of a barbeque area constructed and maintained by the defendant in a park area adjacent to Nobby’s Beach Surf Club.  It is alleged that the injury, loss and damage sustained by the plaintiff were caused by a breach of duty or negligence of the defendant particulars of which are set out in the plaint.  Both liability and quantum are an issue.
Liability
Numerous photos tendered in evidence adequately depict the scene of the incident.  However, a brief description may be appropriate.  The barbeque area is enclosed by a brick wall on three sides.  To the rear of this area and adjacent to the rear wall of the barbeque area is a relatively level paved area designed as a washdown area.  A water tap was attached to the brick wall.  Adjoining the apron on the side away from the wall is a concrete ramp about 450mm wide and there is a step down to this ramp from the apron.  Adjoining that concrete ramp is a concrete footpath on the same level as the concrete ramp.  On each side of the paved apron is a grassed area which roughly slopes from the level of the apron where it adjoins the brick wall to the concrete footpath. 

The result is that if one approaches the apron from the side, on the grassed area, there is a slight step up from one side and a step down the other side to the grass.  The height of the step up and the step down depends roughly on how close one is to the brick wall of the barbeque.  Close to the wall it is virtually non-existent whereas close to the step down from the apron area to the concrete ramp it is closer to the height of the step.

On the day in question the plaintiff was walking towards the apron travelling from west to east.  He apparently approached the apron in such a way that when he stepped onto it there was only a slight step up, if any.  As he was crossing the apron diagonally, going away from the barbeque wall, the step down onto the grass was somewhat greater, up to 110mm.  The actual height of the step from the paved apron to the concrete ramp was some 135mm to 140mm.  The plaintiff fell when he placed the heel of his foot on the far edge of the paved area which resulted in his losing his balance and falling onto the grass.  There is some dispute as to whether there was a projecting piece of jagged concrete protruding from the vertical face of the concrete below the pavers.  The plaintiff suggests that there was and that, although it may not have caused him to lose his balance, it did contribute to his injuries. 

The plaintiff described the accident as follows:

“Can you tell us what part of your foot you placed on that brick you referred to? - -  My heel.

And did you put all your heel on the brick? - - Yes, it went across.

You put all of your heel on? - - Yes, just the edge part, like that. (demonstration)”

And later

“My heel came onto the pavers, it cut off and my foot went down towards the ground and the concrete was at the bottom which twisted my foot up and my momentum was still going and I just went straight over.

What do you mean ‘the concrete’? - - There’s a jagged piece of concrete at the bottom of the pavers there.”

Two expert witnesses gave evidence relevant to liability – a Mr Smolokovs and Dr Olsen.  Each prepared a report setting out what he considered could have caused or contributed to the plaintiff’s fall.  I prefer to accept the evidence and the opinions expressed by Dr Olsen where they differ from those expressed by Mr Smolokovs.  I also accept the evidence of Mr Kocass, a council employee, when he said that no complaints had been received about the area and that no remedial work had been carried out by the council since the incident.
I have doubts about accepting much of the plaintiff’s evidence.  I do not consider he was evasive or dishonest, but inconsistencies in his evidence have lead me to have doubts about his reliability.

On the evidence I accept I find that the area in question was constructed in accordance with acceptable building requirements and that the defendant was not made aware prior to the incident that there was any potential danger or defect which existed where the plaintiff fell.  I am also satisfied that although the area where the plaintiff fell was undoubtedly an area where he was entitled to walk it was not a pathway and consequently somewhat less stringent requirements would apply.

Whether there was any protruding piece of jagged concrete protruding from the vertical face of the step down where the plaintiff fell I am in some doubt.  Even if there was it was not the cause of the plaintiff’s fall.  His fall cannot be attributed to any negligence or breach of duty on the part of the defendant.  It occurred when he placed his heel on the edge of the pavers and probably lost his balance as a result of twisting his ankle.  I do not accept that he slipped.  Even if there had been a properly formed step down it is probable that he still would have fallen.

Quantum
As a result of his fall the plaintiff suffered a severe injury to his right ankle.  It was dislocated and fractured.  He was taken by ambulance to hospital where he remained, according to Dr White, for some eleven days.  After four days he underwent surgery which involved operation on the ankle from both medial and lateral sides.  He subsequently had to return to hospital to have the internal fixation devices removed. 

He undoubtedly suffered severe pain both at the time of the injury and subsequently.  He was in plaster for some ten weeks.  In about December 1995 he returned to work on light duties but left after some four months because he could not “perform to a high standard”.  He says that his pre-accident physical activities have been significantly curtailed and that he still suffers pain when standing for long periods and when walking long distances or over rough ground.

There is a difference of medical opinion as to the extent of the plaintiff’s disability and his future prognosis, in particular whether he is likely to develop arthritis in the future as a result of the injury.  Reports were prepared by a number of orthopaedic specialists including Dr David White, Dr John Pentis, Dr Peter Dodd, Dr Terrence Saxby and Dr Jeff Peereboom.

I find the evidence of Drs Saxby and Peereboom more persuasive and accept their opinions where they differ from those of the other doctors.  Dr Saxby considers the plaintiff has a partial disability of the lower limb in the order of 5% but is capable of fulltime employment until normal retirement age.  Although he will continue to have some discomfort in his ankle this “should not be too progressive” and it is unlikely that he will require further medical treatment.
Dr Peereboom, an orthopaedic surgeon specialising in foot and ankle care, also considers the plaintiff’s disability to be about 5% attributable to the lack of range of motion in his ankle.  He considers he is able to engage in fulltime employment and will be able to continue this until ordinary retirement age.  He considers the nature of the injury is such that it is unlikely arthritis will occur.  His prognosis is good and he expects the plaintiff should be able to resume normal recreational and employment opportunities. 

It is perhaps also significant that Dr Dodd, called on behalf of the plaintiff, considers that, although the plaintiff may get aches periodically, he would not be prevented from working as a groundsman until his retirement age, provided he works on level ground and provided he is conscious of his limitations.

I assess damages for pain and suffering and loss of amenities at $25,000.00.  I allow interest of $1,200.00.

Economic Loss
The plaintiff describes himself as a greenkeeper.  However, he has no formal qualifications other than a traineeship in horticulture.  His employment since 1992 has been erratic.  He was employed for a few months in 1992 at a nursery.  In 1993 he received $7,428.00 gross for work as a gardener/cleaner at the Surfers Paradise Bowls Club.  At other times he received social security payments.  In 1994 he was employed by Broadbeach Bowls Club as a gardener/greenkeeper.  His nett earnings were about $600.00.  From 1 July 1993 to 30 June 1994 he received $6,457.50 from Centrelink.  In 1995 he was employed by the Surfers Paradise Bowls Club from 16 November 1994 to 30 June 1995 and earned some $6,663.00, and at the Surfers Paradise Resort where he earned $2,437.00.  In the same year he received from Centrelink $2,431.00. 

The accident occurred on 4 August 1995. 

After the accident he returned to work at the Surfers Paradise Bowls Club for about four months from December 1995 to March 1996.  He performed light cleaning duties.  He then left because “I was finding that very difficult to do well and there was a lot of walking around”.  Apparently he again worked for the Surfers Paradise Bowls Club for a short period in 1997, as a gardener, for which he received $144.00.  Since then he has been receiving payments from Centrelink.

The plaintiff has made it clear that his interest is in greenkeeping, horticulture and nursery work.  He has made some attempts to find work he thinks he could perform in these fields.  His attempts to look for work in other fields has been very half hearted.

I assess his damages for past economic loss at $20,000.00.  I allow interest of $4,000.00.  Due to his pervious erratic employment history it is not easy to assess his future economic loss.  Clearly his disability has placed him at a significant disadvantage in the work place.  However the reports of the medical experts I accept suggest he is capable of returning to fulltime employment in an appropriate field.  I assess his damages for future economic loss at $25,000.00.  I allow $1,200.00 for past superannuation and $1,500.00 for loss of future superannuation.

Griffiths v. Kerkemeyer
The plaintiff was given nursing and other assistance by his mother, with whom he lives, for some three months after the accident.  It is agreed that $10.00 per hour is a reasonable rate.  I allow an amount for the period to date of $4,280.00 plus interest of $400.00.  I am not satisfied further assistance will be needed in the future.

Special damages have been agreed at $3,660.00.  I allow interest on this amount fixed at $74.00.

The result is that total damages are assessed at $86,314.00 calculated as follows:

Pain and suffering and loss of amenities                   $25,000.00
  Interest on $12,500.00  $  1,200.00
           Past Griffiths v. Kerkemeyer  $  4,280.00
  Interest  $     400.00
           Special Damages  $  3,660.00
  Interest  $      74.00
           Past Economic Loss  $20,000.00
  Interest  $  4,000.00
           Future Economic Loss  $25,000.00
           Loss of Past Superannuation (6%) $20,000.00         $  1,200.00
           Loss of Future Superannuation  $  1,500.00
  $86,314.00

The plaintiff’s claim is dismissed.  I order that the plaintiff pay the defendant’s costs of and incidental to the action to be taxed.