Rosenberger v Meanderham Pty Ltd

[1996] QCA 227

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 244 of 1995

Brisbane

[Rosenberger v. Meanderham Pty Ltd]

BETWEEN

CHERYL LEE ROSENBERGER

(Plaintiff)

Respondent

AND:

MEANDERHAM PTY LTD

(Defendant)

Appellant

Macrossan CJ
Davies JA

Byrne J

Judgment delivered 09/07/1996

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	PERSONAL INJURY - Liability - Whether employer negligent - Whether employee contributorily negligent - Whether evidentiary basis for trial Judge's findings. PERSONAL INJURY - Damages - Quantum - Whether trial Judge made adequate discounting - Whether trial Judge made accurate assessment of damages for past and future economic loss and future care and assistance.
Counsel:	Mr PA Keane QC and Mr CA White for the appellant. Mr CF Wall QC and Mr MA Drew for the respondent.
Solicitors:	Nehmer Davenport McKee for the appellant. Lee Turnbull & Co for the respondent.
Hearing Date:	10 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 244 of 1995

Brisbane

BeforeMacrossan CJ

Davies JA

Byrne J

[Rosenberger v. Meanderham Pty Ltd]

BETWEEN:

CHERYL LEE ROSENBERGER
(Plaintiff)

Respondent

AND:

MEANDERHAM PTY LTD

(Defendant)

Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 09/07/1996

The present respondent as plaintiff claimed damages for personal injuries

against her former employer and succeeded in obtaining an award for $297,756.75

with costs to be taxed. The defendant has appealed against the finding in negligence

and the dismissal of its cross claim for contributory negligence and also against certain

aspects of the assessment of quantum.

The respondent's claim was brought following two falls resulting in injury at her

place of work in the appellant's hotel premises. She was working as a kitchen-hand

when she slipped and fell upon wet tiles in the kitchen area near a dishwasher on 8

August 1990. In the following year she again fell when she slipped on water which had collected upon the floor at the exit to the cold room where she had been attending

to her duties. This second accident occurred on 24 February 1991.

The respondent alleged that in each case the appellant had failed in its

obligation to provide a safe place of work and had also in the circumstances been

guilty of a breach of its statutory duty. The factual basis of her claim at common law

and under statute largely covered the same ground. The relevant statutory provision

was Regulation 141 made under the Workplace Health and Safety Act 1989 and it

dealt with an employer's obligation to provide safe access to all plant. Under both

heads of claim it was contended that the system which the appellant had in place

resulted in wet and slippery conditions which constituted a danger. It was said that the

danger was foreseeable and that it was reasonable for the appellant to have guarded

against it.

On the respondent's case the appellant had notice of the deficiencies in

working conditions and could have remedied them but failed to do so. The

respondent's evidence derived some support from other evidence in the case. The

evidence suggested that the dishwasher which was involved in the first accident had

been leaking for some time and in the second accident that water had been

persistently collecting on the floor at the exit point of the cold room, probably due to

condensation above it because the cold room door was imperfectly sealed. The

deficiency in the dishwasher which allowed water to escape and the tendency of water

to accumulate on the cold room floor were both matters which could, on the evidence,

have been remedied and as well there was evidence that slip-reducing gritty

compounds could have been distributed upon the floors to eliminate or reduce the

danger.

One of the appellant's submissions was that the trial judge over-readily
accepted the respondent on matters of credit and failed to reject her version on

relevant issues when he should have done so. This ground encounters immediate

difficulty because the judge had the advantage of seeing and hearing all of the

witnesses and had a particular advantage in the case of this respondent who was

subjected to an extremely long cross-examination designed to test her version. The

effect, as his Honour found, was that he was able to accept her in relevant areas of

her testimony. On the face of his reasons, he appears to have made a careful

assessment and has given a full explanation why he has done so. In particular, he

explained why certain statements in the medical reports or official records should not

be regarded as displacing the respondent's testimony as the appellant contended.

There is no reason to conclude that the trial judge's findings in this respect lack

support in the evidence. One particular matter urged is that in the assessment of

damages the trial judge failed sufficiently to explain why he did not place greater

reliance upon the testimony of Dr Laister claimed to be relatively favourable to the

appellant or to explain his apparent preference for Dr Lewis. He may of course simply

have found Dr Lewis more convincing but there was one particular area where it might

be thought that Dr Lewis had an advantage over Dr Laister. He had seen a radiology

report on which signs of the relevant spinal injury appeared and this could be regarded

as assisting with his diagnosis.

The trial judge accepted the respondent's evidence that in the first accident she

fell on her buttocks and also struck her head. On a collateral issue he was satisfied

that the respondent had made a due report even though details of the incidents were

then, as she said, entered up in an exercise book by the receptionist, and not noted in

an official register which, under the system in place according to the appellant, was the

legitimate place for details of this kind to be recorded. This involved what is essentially a matter of credit and there is no reason to reject the finding which the trial judge

made.

In the second accident the respondent described how her right foot slid from

under her just as she was placing her left foot down upon the area outside the cold

room. She said that she fell with her right leg folded under her landing on her

buttocks on the floor so that her body moved some distance forward and the side of

her face struck a stove. Notwithstanding the appellant's contention that the

respondent could not have moved forward for the claimed distance to come in contact

with the stove, there is no sufficient reason shown for rejecting the trial judge's

acceptance of her version.

The respondent now has a significantly disabling back injury.

The judge accepted that the respondent sustained an injury to her lumbar spine

in the first accident and the likelihood was that there had been specific injury to the

L5/S1 disc. In the second accident the judge found that the respondent sustained

damage to a spine already made vulnerable and so precipitated a permanent disability

with accompanying pain from which she now suffers. The respondent had sustained

certain back injuries prior to the first of the two incidents described but she had made

an apparent recovery although, as the judge found, those earlier injuries would have

played some part in predisposing her to the disability which finally resulted from her

two accidents. His Honour, in his assessment, has made acceptable efforts to allow

for the interplay of the various factors involved. The back injury is the one which is

significant in the respondent's current state although there were complaints of pain in

her shoulder and neck following the second accident. There is no need to delay

particularly over these additional two matters because of the judge's finding that

although she has symptoms in those areas, he was not satisfied that they have
resulted in a significant problem.

One of the appellant's complaints was that the trial judge wrongly admitted the

reports of Dr Watson and evidence that he gave, but there is no merit in this

suggestion. The reports were admitted without objection and Dr Watson then gave

evidence. It is true that in one particular aspect, namely in respect of his prescription of

addictive drugs, the witness claimed privilege against answering questions. The claim

of privilege was allowed. The limited refusal to provide answers in a particular area of

questioning does not, in these circumstances, carry the consequence that the reports

themselves were wrongly admitted.

The trial judge has found that in some areas of her testimony the respondent

was not fully frank. This concerned the extent to which her lifestyle was affected by

her drug addiction. The judge, having seen and heard the respondent testify at

considerable length, concluded that on the probabilities any lack of candour which

emerged in the respondent's testimony could be regarded as restricted to this aspect

of her existence and did not in the end invalidate her testimony over the full range of

relevant matters.

The judge's acceptance of the respondent's case in negligence and rejection of

the appellant's claim of contributory negligence appear sufficiently justified. The

respondent's description of the circumstances of the two accidents could be regarded

as convincing and the appellant's attempts to shift responsibility for the unsafe state of

the areas in which the respondent was working, were quite justifiably rejected. The

relevant responsibilities lay upon the appellant which itself failed to take the necessary

steps to remedy dangerous conditions of which it had notice. The respondent had

made some attempts to deal with the water collection problem by periodic mopping,

but she worked under the usual pressures in discharging her principal tasks. The judge was fully entitled to find that the respondent had not been shown to have failed

to take reasonable steps in the circumstances to provide for her own safety.

Accordingly the appellant failed to discharge the onus of proving contributory

negligence.

The respondent was born on 16 September 1964 and left school when she was

fourteen years of age, commencing employment at a supermarket. She married for

the first time when she was quite young but that marriage failed. Her subsequent

working career was as a domestic in a general hospital for five years, followed by a

period out of work for about one year before commencing employment at the

appellant's hotel in 1988. Her capacity for hard work was demonstrated by the fact

that for a lengthy period she undertook additional work as a cleaner, putting in long

hours spread over some seven days a week. The respondent was described by the

trial judge as having a dependent personality, a description originally contributed by a

psychiatrist who gave evidence. There was no doubt that the respondent had turned

to over-use of drugs which were prescribed for her, and a full history in this respect is

found in the trial judge's reasons. The judge found that the period of extreme

dependency came to an end when the respondent was referred to an alcohol and

drug services unit at the Townsville General Hospital. The general tendency of the

addiction to drugs to disrupt the respondent's life, as well as a particular episode when

her intravenous injection of one drug resulted in permanent impairment of her lung

function, are matters which have been allowed for by the trial judge in his assessment

of damages. He has made an acceptable attempt to apply discounts to the level of his

damages award due to such factors. He has found that the circumstances in which

the dependency upon drugs and the loss of lung capacity came about were

specifically related to the accident and to the consequential treatment which the respondent received. In concluding that but for the accident those events were

unlikely to have occurred he has thought it proper to exclude from calculation

particular aspects of her induced disability. He has made what can be regarded as a

notional dissection, discounting some of the full range of consequences acting upon

her dependent personality. He has proceeded, in effect, as though the respondent

herself made some contribution to the full extent of her misfortune and decided that

not all of her dependent condition could reasonably be attributed to the consequences

of the appellant's negligence. Any such discounting will necessarily be an imprecise

exercise, but the judge's attempt to approach the matter of assessment in this fashion

reducing the damages which would otherwise have been found, appears acceptable.

He has found that the impairment of lung capacity has not, for practical purposes,

reduced the respondent's capacity to engage in the type of work which, but for the

accidents, she could have continued in. The incapacity to undertake that employment

is due to her orthopaedic injuries and their consequences. Apart from that incapacity,

the judge has found the respondent would have remained in the workforce for many

years to come.

The assessment of general damages was in the sum of $45,000, of which

some $20,000 was allocated to past pain suffering and loss of amenities for the

purpose of the allowance of interest.

The claim made for loss of past earnings, including superannuation

entitlements, was $124,000. This, however, was based on an assumption that the

respondent would have continued in the longer term to work in her full-time

employment and additionally as a cleaner, but the judge thought that was an

unrealistic suggestion. He noted that the usual contingencies had to be allowed for

and in particular the risks attendant upon the respondent's pre-existing vulnerable spine and her dependent personality. Further, the respondent has been left also with

some residual capacity to work. To allow for all of this the judge discounted the claim

for past economic loss to $70,000 from which sum he made a deduction necessary to

allow for payments received from the Workers' Compensation Board and the

Department of Social Security. The net result was an award under this head for

$31,455 and interest. The basis on which his Honour approached the assessment for

loss of past earnings and made his allowance for discounting factors has resulted in

an award under this head which should not be interfered with.

For future economic loss the judge awarded $150,000. In argument before us

it was pointed out that calculations based on $366 per week, a kitchen-hand's net

wages including superannuation, in the respondent's case to age 55 and to age 65,

produced sums in excess of $280,000 and $330,000 respectively. The sum of

$150,000 which was awarded could be produced by allowing $190 a week for thirty

years to age 61, or about $206 per week for thirty-four years to age 65. When viewed

against the background the award under this head cannot be rejected as excessive.

The respondent's evidence was that she had intended to work until aged 65.

The judge also allowed sums for past care and assistance in the amount of

$6,000 plus interest and future care and assistance, totalling $24,000 calculated on a

basis of $27 a week. This was on the assumption that three hours assistance per

week would be provided. Although the making of any award at all for future care was

opposed, the hourly rate figure that was adopted seemed not to be subjected to

particular challenge. In the end there is no sufficient basis for interfering with the

award for future care and assistance.

The special damages allowed were subjected to no particular challenge. The

claim for future medication and all of the amounts otherwise included in the award and
the interest allowed in each case appear justifiable.

The result was an assessment overall of $326,001.85 from which was made a

deduction for payments by the Workers' Compensation Board leaving a judgment sum

of $297,756.75 with costs. This should not be interfered with. The appeal should be

dismissed with costs.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 244 of 1995

Brisbane

[Rosenberger v. Meanderham Pty Ltd]

BETWEEN

CHERYL LEE ROSENBERGER

(Plaintiff)

Respondent

AND:

MEANDERHAM PTY LTD

(Defendant)

Appellant

Macrossan CJ
Davies JA

Byrne J

Judgment delivered 09/07/1996.

Further orders delivered 20/09/1996

Judgment of the Court

APPLICATION DISMISSED. THE RESPONDENT IS TO HAVE JUDGMENT IN HER FAVOUR FOR $297,756.75, TOGETHER WITH COSTS OF THE APPEAL ON A PARTY AND PARTY BASIS, SAVE THAT THE APPELLANT IS TO HAVE AGAINST THE RESPONDENT, THE COSTS OF THIS APPLICATION TO BE TAXED ON A PARTY AND PARTY BASIS.

Counsel:	Mr PA Keane QC and Mr CA White for the appellant. Mr CF Wall QC and Mr MA Drew for the respondent.
Solicitors:	Nehmer Davenport Dean McKee for the appellant. Lee Turnbull & Co for the respondent.

Hearing Date: 10 May 1996

FURTHER ORDERS OF THE COURT

Judgment delivered 09/07/1996.
Further Orders delivered 20/09/1996.

The respondent plaintiff was successful in the appeal brought against the judgment

below where she obtained an award in her favour for $297,756.75 with costs to be taxed.
The appeal had challenged the findings made in the respondent's favour on negligence,
contributory negligence and on some aspects of the quantum assessed.

At the hearing of the appeal, respondent's counsel, in the event that the respondent should be successful, asked for no special costs order nor foreshadowed an application for such an order. When judgment in the appeal was delivered dismissing the appeal with costs, the respondent's representatives, for the first time, asked that the costs order pronounced in her favour be withheld to allow an opportunity for them to make a submission on the form of that costs order. This request was acceded to and both parties took advantage of the opportunity to lodge written submissions on the form of an appropriate costs order.

The respondent now asks that the order for costs made in her favour on the appeal be on a full indemnity basis, or alternatively on a solicitor and client basis. The appellant opposes the making of any such special form of order and contends that the costs order against it, which in the circumstances it does not oppose, should be on the usual party and party basis.

The respondent relies on these grounds. Her costs order obtained below was on a solicitor and client basis because, pursuant to the provisions of Order 26, an offer to settle had been made on her behalf and she obtained a judgment at trial higher than her offer. Also, a number of grounds were taken in the notice of appeal and some were not supported by substantial oral submissions. None of the judge's findings in the respondent's favour were disturbed in the reasons given by this court in disposing of the appeal.

It is not suggested by either side that the offer to settle made below carries any automatic or prima facie entitlement to a specially favourable costs order on the appeal. This obviously is in deference to the decisions in cases such as Tamwoy v. Solomon C.A. No. 76 of 1995, judgment 12/9/95 and 10/10/95 and Ruff v. Milton Appeal 101 of 1995. The respondent's argument relies only on the general discretion of the Court exercised in the particular circumstances of the case. It is said that without a special order the respondent, although successful, will be finally worse off as a result of the appeal, but this is a common consequence of the usual form of party and party orders which successful parties obtain.

There was no evidence that after the appeal was launched the respondent made a further inter-party offer to settle or did anything other than attempt to maintain the full benefit of the judgment and costs order obtained below. In this respect the respondent has been successful.

Nothing sufficiently distinguishes this appeal from the common run of appeals where successful parties obtain costs orders on a party and party basis. It is, no doubt, possible to mount arguments that it would be advantageous by a rule of court to formally introduce a costs provision for appeals parallelling the measures introduced in Order 26 for trials, but this has not been done.

The costs order in the form proposed in the judgment already announced in the appeal should be maintained. The respondent's application should be dismissed.

The respondent should have judgment in her favour for $297,756.75, together with costs of the appeal on a party and party basis, save that the appellant should have against the respondent, the costs of this application to be taxed on a party and party basis.