Sandra Neindorf v Marta Junkovic No. Scciv-03-1755
[2004] SASC 94
•30 March 2004
NEINDORF v JUNKOVIC
[2004] SASC 94
Magistrates Appeal: Civil
BESANKO J This is an appeal from a decision of a Magistrate. The appeal is brought pursuant to s 40 of the Magistrates Court Act 1991. The appeal is brought by the defendant in a civil action who was held liable to pay damages to the plaintiff. I will refer to the appellant as the defendant and the respondent as the plaintiff.
The Magistrate delivered judgment on 23rd November 2003 and he ordered the defendant to pay the sum of $24,464.00 in damages to the plaintiff. The Magistrate held that the defendant owed a duty of care to the plaintiff and he found that she had breached that duty. The Magistrate found that the plaintiff had suffered loss and damage as a result of the breach of duty.
The Magistrate’s Findings of Fact, and Conclusions
The accident which was the subject of the plaintiff’s claim occurred on Saturday, 5th February 2000, and the facts which follow relate to the position at that date.
The plaintiff was born on 11th July 1946 and was 53 years old at the time of the accident. The defendant was the owner and occupier of premises at 217 Kelly Road, Modbury Heights in the State of South Australia (“the property”). The defendant lived in a house on the property. The defendant placed an advertisement in a publication called the “Trading Post”. The advertisement advised readers that what is commonly called a garage sale would take place on the property on Saturday, 5th and Sunday, 6th February 2000. The plaintiff went to the property at about 8:40AM on 5th February 2000 to attend the garage sale. She was walking along a concrete driveway at the front of the property when she stumbled because of unevenness between two slabs of concrete. In the course of stumbling, she suffered an injury to her right foot.
At the end of the driveway there was a carport attached to the house. On the day of the accident, there was a table under the carport on the right hand side of the driveway upon which goods were displayed. The evidence suggests that there were also some goods on the ground. The goods consisted of bric-à-brac, toys and a lazy boy chair. The Magistrate found that there were goods on display to the right of the driveway and under or near the carport, and that the plaintiff was looking at those goods at the time of the accident. The Magistrate found that at the point where the plaintiff stumbled there were two slabs of concrete with an expansion joint in between the two slabs. The slab on the left‑hand side was higher than that on the right‑hand side. The plaintiff placed her right foot on the area where the right‑hand slab was lower than the left‑hand slab, and as she did that her foot rolled and she stumbled and the injury occurred. The plaintiff did not fall to the ground.
The Magistrate found that the unevenness in the driveway would have been known to the defendant who had lived on the property for some years. The Magistrate found that the unevenness was a hazard. The Magistrate found that the defendant should have been aware that those attending the garage sale on the property would not be familiar with the property and its features, and that they would be distracted by the goods placed on the right side of the driveway. The Magistrate found that the duty of care “would be higher” (to use the Magistrate’s words) during the garage sale because of the distraction caused by the presence of the goods to the right of the driveway. The Magistrate said:
“In my view it was reasonably foreseeable that the unevenness in the path posed a risk to the attendees at the garage sale.”
The Magistrate identified two means by which the risk could have been minimised, namely, the painting of a line along the unevenness to draw attention to it, or the placing of a table with goods on it over the unevenness. The Magistrate said that the cost of reducing the risk of injury was low. The Magistrate found that the defendant breached the duty of care which she owed to the plaintiff.
The Magistrate rejected a submission that the plaintiff was guilty of contributory negligence. He said that she would have been distracted by the goods to her right and not looking where she was placing her feet. He said the situation may well have been different were it not for the goods placed on display.
The Magistrate found that the plaintiff sustained a fracture of the fifth metatarsal in the right foot as a result of the accident.
The components of the award of damages which were challenged by the defendant on appeal were the award of $10,000 for pain and suffering, the award of $5,428 in relation to orthotics and $2,000 in relation to specialised footwear and the award of $3,024 for the domestic assistance which the plaintiff required and received over the first twelve weeks after the injury was sustained.
The parties were agreed that the Magistrate made an error in awarding $3,512 for the domestic assistance which the plaintiff required and received over the second twelve weeks after the injury, and that the Magistrate had intended to award $1,512 for that component of the plaintiff’s loss.
As to the award for pain and suffering, the Magistrate found that the plaintiff experienced a considerable degree of disability, pain and lack of independence during the three months after the injury and a diminishing degree of disability, pain and lack of independence up until six months after that. I think when the Magistrate referred to “six months after that” he was referring to six months after the injury, not six months after the three month period. That is consistent with his approach to the claim for domestic assistance where he awarded $3,054 for the first twelve weeks, $1,512 for the second twelve weeks and $500 for the period from about August 2000 to August 2003. The Magistrate found that the plaintiff may be particularly sensitive to pain which she thinks she is still experiencing but which is not supported by the medical evidence, and he said he would only allow a very small amount in relation to future pain and suffering.
As to the award in relation to orthotics, the Magistrate appears to have accepted the calculations put forward by the plaintiff which were as follows:
Orthotics
1 pair every 3 years applying Luntz Table 7 @ $600 per pair
27.14 ÷ 3 x $600 = $5,428.00
As to the award in relation to specialised footwear, the Magistrate appears to have adopted a broad axe approach. The plaintiff’s claim was calculated as follows:
Specialised Footwear
$50.00 (being the difference between a $100.00 pair of normal shoes and a $150.00 pair of specialised shoes required to fit her orthotics) x 2 pairs per year x 27.14 years = $2,714.00
In relation to domestic assistance for the first twelve weeks, the plaintiff claimed two to four hours a day at $12.00 per hour for twelve weeks resulting in a range of $2,016.00 to $4,032.00. The Magistrate decided to allow a figure in the middle of this range (ie., $3,024.00) being three hours of domestic assistance per day.
Issues on Appeal
The appeal involved a challenge to the Magistrate’s conclusions on liability and certain components of the award of damages.
Liability
As to liability, the grounds of appeal are:
“1.The learned Special Magistrate erred in finding that in all the circumstances and having regard to the High Court decision in Brodie v Singleton Shire Council (2001) HCA 20 that:
1.1 (abandoned on appeal)
1.2 If a duty was properly owed to the plaintiff, then that duty was breached by the defendant in failing to take precautions such as painting a strip of paint on the relevant unevenness.
2.The learned Special Magistrate erred in finding that it was reasonably foreseeable that the unevenness in the path posed a risk to the attendees at the garage sale.
3.(abandoned on appeal)
4.The learned Special Magistrate erred in finding against the weight of the evidence that the plaintiff was not guilty of contributory negligence.
5.The learned Special Magistrate erred in allowing the evidence of Mr Peter John Madden (sic) to be admitted.
...
8.That the learned Magistrate erred
8.1 in failing to determine whether or not the negligent conduct found by his Honour caused the incident.
8.2 in the alternative, and if such a finding of causation is found to be implicit on his Honour’s reasons in so finding;
8.3 in which case, in failing to find that the negligent conduct identified by his Honour did not cause the incident.”
In this State the liability of an occupier of land for injury, damage or loss caused by the dangerous state or condition of the land is to be determined in accordance with the principles of the law of negligence (s 17C(1) Part 1B Wrongs Act 1936). Part 1B of the Wrongs Act 1936 came into operation on 5th July 1987. At about the same time, a similar position had been reached at common law (Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479).
In this case the defendant as the occupier of the property owed a duty of care to the plaintiff as an entrant onto the property. The issue is what is the scope of that duty, although it must be said that the difference between scope and breach is sometimes difficult to draw (Wilbe v The City of Munno Para (2002) 224 LSJS 323 per Doyle CJ at [36]). The defendant submitted that the duty of care extended only to risks on the property which could be described as dangerous. In the alternative, she submitted that the duty of care extended only to reasonably foreseeable risks to an entrant exercising reasonable care for his or her own safety. The defendant relied primarily on authorities dealing with the liability of local authorities for injuries caused by the condition of footpaths and roads under their control. The plaintiff submitted that the authorities dealing with the liability of local authorities for injuries caused by the condition of footpaths and roads are not directly relevant, and that the relevant principle is that a duty of care arises in relation to all reasonably foreseeable risks of harm, however unlikely it may be that the risk will eventuate (Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J (as he then was) at 47 – 48).
It is convenient to start my examination of the issue with the decision of the High Court in Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 (“Ghantous”). In Ghantous, a pedestrian who was walking along a footpath slipped and fell. She tripped at a point where there was a difference in height of 50mm between a concrete footpath and an adjoining verge. The pedestrian sued the local council. The original construction of the footpath involved no negligence. The pedestrian was unsuccessful in the courts below and her appeal to the High Court was dismissed.
Gleeson CJ agreed with Callinan J that no case of negligence was made out against the Council. His Honour made the observation that in England after the rule of immunity had been abolished, it was not enough to show that the road or footpath could possibly be an occasion of harm; it was necessary to show that the road or footpath was dangerous. His Honour noted that people are regularly required to walk on uneven surfaces on both public and private land. Based on his Honour’s comments, the defendant submitted that the duty of care only arose in relation to risks which can be described as dangerous. I do not think that his Honour was necessarily stating the law in those terms, but in any event, I do not think there is majority support in Ghantous for such a principle.
Gaudron, McHugh and Gummow JJ in joint reasons for judgment said that the duty should be formulated in terms which require that the road be safe not in all circumstances, but for users exercising reasonable care for their own safety. Their Honours said (at [163]):
“As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes.”
Their Honours said that in considering how a pedestrian would exercise reasonable care for their own safety in particular circumstances, it is appropriate to have regard to the extent to which the danger or hazard is obvious. Their Honours said that some allowance should be made for inadvertence. It seems to me that it is not easy to formulate in general terms how much allowance should be made for inadvertence, other than to say that much will depend on the particular facts of the case. Gaudron, McHugh and Gummow JJ agreed with Callinan J’s analysis of the facts.
Kirby J defined the duty in Ghantous as a duty to construct the footpath in question and to keep it reasonably safe for ordinary use. He found that the pedestrian had not established a lack of reasonable care on the part of the Council. Hayne J agreed with Callinan J that the pedestrian had not established a want of care on the part of the Council.
Callinan J said that the Council had not been negligent. He said (at [355]):
“There was no concealment of the difference in height. It was plain to be seen. The world is not a level playing field. It is not unreasonable to expect that people will see in broad daylight what lies ahead of them in the ordinary course as they walk along. No special vigilance is required for this.”
Counsel for the defendant referred to a number of cases in which a court has made a finding of no liability by applying the principles in Ghantous. It is not necessary for me to discuss all of the cases.
In Gondoline Pty Ltd v Hansford [2002] WASCA 214 a pedestrian tripped on a protruding paving stone on a pathway on private property. Miller J (with whom Wheeler J agreed) cited with approval what Cumming-Bruce J said in Littler v Liverpool Corporation [1968] 2 All ER 343 at 345 as follows:
“Uneven surfaces and differences in level between flagstones of about an inch may cause a pedestrian temporarily off balance to trip and stumble, but such characteristics have to be accepted. A highway is not to be criticised by the standards of a bowling green.”
Miller J goes on to say (at [60]):
“Here the pathway was, to all intents and purposes, well laid out and although on a gradient, relatively even. Natural subsidences in the land and rainfall would be likely to cause some unevenness in the paving stones. A raised stone of between half an inch and an inch would not, in my view, be a hazard that a pedestrian would not expect to encounter, particularly in a country location such as that at the Farm. Although the pathway was laid out to enable people to move from the carpark to the shops at the Farm, it was nevertheless in a rural location.”
In Richmond Valley Council v Standing [2002] NSWCA 359, a pedestrian tripped and fell on an irregular paved concrete surface in the vicinity of a school which she had just visited. Heydon JA (with whom Handley and Sheller JJA agreed) discussed the scope of the duty and said (at [29]) that a duty arose if there was a reasonably foreseeable risk of harm to a pedestrian exercising reasonable care for her own safety, bearing in mind the particular advantages of pedestrians:
“The issue of the capacity of the defendant to deal with particular risks and the competition between claims on scarce resources is not specifically relevant to the question of the scope of the duty, but to the question of its breach.”
Heydon JA concluded (at [59]):
“The conditions of the site were so obvious and so typical of those commonly to be encountered in daily life that the defendant was not under any duty to undertake inspections to identify them. Even if the defendant had become aware of the particular conditions of the site, it had no duty to alter them in view of their obviousness.”
I also refer to Lombardi v Holyroyd City Council [2002] NSWCA 252; Burwood Council v Byrnes [2002] NSWCA 343; Roads and Traffic Authority of New South Wales v McGuinness [2002] NSWCA 210.
In view of Ghantous and the cases which have followed it, I think it can be said that with respect to the condition of a roadway or footpath, the duty of care is a duty to exercise reasonable care to eliminate reasonably foreseeable risks of harm to a pedestrian exercising reasonable care for his or her own safety bearing in mind any particular advantages enjoyed by the pedestrian and making some allowance for inadvertence on the part of the pedestrian. The defendant submitted that the principle formulated in these terms was also the principle to be applied in the case of an occupier of private property, and that such an occupier does not owe a duty of care in relation to what is commonplace and obvious or there to be seen and avoided.
The plaintiff referred to two decisions which it said supported the proposition that the duty of care extended to all reasonably foreseeable risks no matter how unlikely it was that the risk would eventuate providing the risk was not far-fetched or fanciful. In Webb v South Australia (1982) 56 ALJR 912 a pedestrian suffered an injury when he stepped into a gap between a permanent kerb and a false kerb on a road. The relevant authority was held liable by a majority (Mason, Brennan and Deane JJ) even though they said the false kerb was obvious, and a pedestrian could avoid the possibility of injury by taking due care. Perhaps not all of the observations of the majority in Webb v South Australia (supra) survive the decision in Ghantous. I note that in the joint reasons in Ghantous (at [163]), Webb v South Australia (supra) is referred to without disapproval as a case where the nature of the danger was such that it may not readily be perceived.
In Roman Catholic Bishop of Broome v Watson [2002] WASCA 7 a school employee tripped on an embedded protruding stone on a pathway on school grounds. The employer was held liable by the trial Judge. The Full Court of the Supreme Court of Western Australia dismissed an appeal. Scott J (with whom Wallwork J and Olsson AUJ agreed) referred to the duty an employer owes to his employees. The employee worked at a small school and traversed the pathway frequently in the course of her employment. I do not think the case takes the plaintiff’s argument very far. It is not binding on me, and it seems to me to be a decision which turns on the duties an employer owes to an employee.
The plaintiff also submitted that the principles in Ghantous should be confined to cases involving the condition of roadways and footpaths because in those cases public authorities are involved, and public authorities often have large areas to administer and limited, and even scarce, resources with which to do so. I do not think one can confine the principles in Ghantous to the condition of footpaths and roadways. The fact that a public authority is involved is a relevant consideration in determining the scope of the duty of care, but it is not decisive of that question (Ghantous per Hayne J at [303]; Wilbe v The City of Munno Para (supra) per Doyle CJ at [27]). As noted by Heydon JA in Richmond Valley Council v Standing (as set out above) other features of a public authority may be relevant to the question of breach, rather than the scope of the duty. Uneven surfaces are as common on domestic properties as they are on roadways and footpaths. They are no less obvious, nor is it less well known that they will be encountered.
In my opinion, the duty of care of the occupier of a domestic property in relation to the static condition of the property does not extend to include risks which are obvious and which it is well known are likely to be encountered and which, in all the circumstances, an entrant may reasonably be expected in all the circumstances to notice and avoid. It is important to note that all the circumstances of the case must be considered, including matters such as the location of the property and the activities being carried out thereon at the time of the accident, particularly any activities which might distract an entrant.
Another way of approaching the issue is to say the risk associated with, for example, unevenness of a driveway or pathway which is not uncommon is not of sufficient magnitude as reasonably to require that steps be taken to eliminate it or prevent its occurrence (Webb v South Australia (supra) per Dawson J at 915).
The fact that uneven surfaces are encountered while walking on domestic properties is well known. In Bartlett v Robinson (1981) 27 SASR 342 a milkman tripped while delivering milk at night to a domestic property. The case was decided according to the law as it stood before the amendments to the Wrongs Act 1936, and the decision in Australian Safeway Stores Pty Ltd v Zaluzna (supra), and it was decided by reference to the obligation to eliminate or warn against unusual dangers owed by an occupier of land to an invitee. To that extent it is no longer relevant. However, there are some observations in the case about the commonly encountered and obvious features of domestic properties which are still relevant today. Wells J said at 346:
“It is in the nature of things that paths and driveways leading to dwelling houses are, or from time to time become, slightly uneven, and it would be placing the ordinary householder under an impossible burden if the common law required him or her to keep the approaches to his house free from such imperfections for the protection of the milkman on his rounds and of other invitees like him. The situation could well be different if the invitee were to be a person who, by reason of age or infirmity, was unsteady on his feet or suffering from defective vision.”
White J said at 347 – 348:
“I think that I can take judicial notice of the fact that paths of domestic premises in the metropolitan area are commonly constructed of cement slabs and of the fact that they are not always perfectly laid. Even where the surfaces of such slab paths are flat, there may be gaps between the slabs, in which case ‘danger’ might be seen in the possibility that a high heel would catch therein. Further, where the slabs are laid flat without gaps, danger might still be seen in a drop of a half inch to three quarters of an inch at the sides of the slabs, where the edges of the slabs meet either a centre strip on the one side or a lawn (or other) surface on the other. Some ‘danger’ might be seen to invitees possibly twisting their ankles if they stepped near the edges of such slabs. For my part, I do not see any danger, let alone unusual danger, in these trivial departures from perfection in the state of domestic premises.”
Before leaving the relevant legal principles, I will deal with the question of the admissibility of, and the weight to be given to, expert evidence that a particular condition on a property created a risk that was dangerous, or unacceptable, or that the state of a property was such that it was unsafe. Such evidence, if it is a matter of ordinary observation such as the readily apparent state of a footpath or driveway, is probably not a matter calling for expert opinion. Even if such evidence is admissible, a court is not obliged to accept such evidence (Ghantous per Callinan J at [355]; Richmond Valley Council v Standing (supra) per Heydon JA at [30] – [31]; Burwood Council v Byrnes (supra) per Handley JA at [19]).
I turn now to apply these principles to the facts of this case. The Magistrate did not make a finding as to the height differential between the two concrete slabs. The evidence of Mr Maddern was that the height differential at about the point where the plaintiff fell was in the order of 10 or 12 millimetres, or in round figures, half an inch. I will proceed on the basis that the height differential was of that order.
As I have said, it is not uncommon for there to be unevenness in concrete driveways, pathways and other paths and areas in premises used for domestic purposes. Tree roots, subsidence and wear and tear are among the reasons this occurs. Of course, as I have already said, in determining the extent to which a potential hazard is common and obvious, much will depend on the particular circumstances including the extent of the height differential and the extent to which the potential hazard was obvious or there to be seen.
The height differential in this case was not unusual. A number of photographs were put before the Magistrate, some taken by Mr Maddern and others taken by the defendant. They show a concrete driveway with expansion joints which is not any different from many concrete driveways of domestic properties throughout the State. The driveway has deteriorated with cracking and differences in height. That is not uncommon.
The deterioration in the driveway including the height differential was clearly visible. The accident occurred at about 8:40AM on a clear sunny day and the plaintiff was an experienced and regular attendee at garage sales. The plaintiff was looking at the goods to the right of the driveway at the time she stumbled. The plaintiff was not looking at the driveway, she was wearing shoes described as “flip flops”, and as she traversed the driveway from left to right, her foot landed on the expansion joint at which time she stumbled and injured her foot. I mention at this point that the type of shoes the plaintiff was wearing has not played any part in the decision which I have reached. The defendant did not argue on appeal that the type of shoes the plaintiff was wearing showed any lack of care on her part.
I think the unevenness at the point where the plaintiff fell was not an uncommon or unexpected feature of a domestic property, and it was clearly visible and obvious. The plaintiff in her submissions emphasised the fact that the defendant was conducting a commercial venture on her property and that as part of that venture, persons of differing capacities and unfamiliar with the features of the driveway would come to the property. She also emphasised the fact that goods were placed in a position which might distract entrants to the property. The plaintiff referred to the reasons for judgment of Kirby P (as he then was) in Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241. Kirby P drew a distinction, in terms of the scope of the occupier’s duty of care, between the occupier of a private dwelling and the controller of a large commercial enterprise. He said (at 246):
“In short, whilst it would be quite unreasonable to expect the occupier of a private dwelling to anticipate, even on a sunny day in school holidays, that a child might drop or throw jelly on a path leading to his dwelling upon which a visitor might fall, the same cannot be said of premises such as those of the respondent. The respondent was in charge of a large commercial enterprise. Undiscriminatingly, it invited members of the public to do business in that enterprise. It derived, by inference, an economic advantage from their presence in its mall. It must anticipate the presence there of members of the public of all ages, inclinations and capacities. It must be taken to be aware of the presence of the confectionery shop. It may be inferred to know of the special risks arising from the fall of such confectionery on a busy thoroughfare. Such risks would be particularly great in summer holidays where there would be likely to be greater demand and enhanced risks of melting and hence an enlarged chance of the dangerous deposit of slippery material in the very passageway where, because of the amount of traffic, risks of mishap would be increased.”
The fact that an occupier is conducting a commercial enterprise and that an entrant might be distracted by the display of goods are related points. In my opinion, both are relevant to whether the particular risk is obvious and one likely to be encountered having regard to the use to which the property is being put and other relevant circumstances. In this case, the commercial activity was a one-off activity, and a low level activity in the sense that large numbers of people were not likely to enter the property. The property was at all times a domestic property. As I have said, unevenness of the type encountered by the plaintiff was a not unexpected feature of a domestic property and the unevenness was obvious. The presence of the goods to the right of the driveway might have been significant in terms of enlarging the scope of the duty of care had it been coupled with a commercial activity involving large numbers of people entering the property, but the latter was not the case.
I do not think the fact that the defendant was conducting a garage sale on the property and that goods were on display to the right of the driveway constitutes a sufficient reason to expand the scope of the duty of care so as to include within it the unevenness at the point where the plaintiff fell.
Mr Maddern’s evidence could not advance the plaintiff’s case. Some of his evidence, such as his observations of physical features was probably admissible, but his evidence as to the degree of risk or danger was not admissible. In any event, a court is not bound to accept it.
I do not think that the unevenness in the driveway at the point where the plaintiff stumbled was within the scope of the duty of care the defendant owed to the plaintiff. The Magistrate erred and the plaintiff’s claim should have been dismissed.
In view of the above conclusions it is not necessary for me to consider the defendant’s submissions in relation to contributory negligence and causation. These issues were not the subject of detailed submissions, but I will deal with them briefly in case there is an appeal.
As to contributory negligence, and assuming the defendant was in breach of a duty of care which she owed to the plaintiff, the latter was not looking where she was going, and the presence of the goods to the right of the driveway does not excuse her failure to take reasonable care for her own safety. Had I held that the defendant was liable to the plaintiff, I would have reduced the damages awarded to her by 30% by reason of her contributory negligence.
As to causation, the Magistrate has implicitly decided that issue in favour of the plaintiff. I would not interfere with the implicit finding of causation. While it might be argued with force that the plaintiff did not establish on the balance of probabilities that she would have seen a painted line, I do not think it can be argued that the other preventative measure identified by the Magistrate – placing a table with goods on it over the unevenness – would not have avoided the accident.
The Award of Damages
As to the award of damages, the grounds of appeal (relevantly) are:
“7. That the learned Special Magistrate erred in his assessment of damages for the plaintiff in that:
7.1 Having regard to the extent of the injury, the sum of $10,000 for pain and suffering was manifestly excessive;
7.2 The evidence in relation to the ongoing cost of orthotics did not support a special damages claim of $5,428 plus $2,000 for specialised footwear.
7.3 …
7.4 The evidence in relation to domestic assistance did not support an award of $7,036.”
In view of my conclusion as to liability, it is not strictly necessary to consider the challenge to the components of the damages awarded to the plaintiff. However, I will do so in case there is an appeal.
I have already referred to the findings the Magistrate made which are relevant to the award for pain and suffering. The defendant did not challenge those findings, but submitted that the award of $10,000 for pain and suffering was manifestly excessive having regard to those findings. I have read carefully the plaintiff’s evidence and the evidence and reports of Mr Stevenson, the orthopaedic surgeon, who examined the plaintiff, in order to fully appreciate the findings of the Magistrate. In essence, the bulk of the award for pain and suffering relates to past pain and suffering – the Magistrate said he would allow only a very small amount for future pain and suffering – and it would seem that the greater part of the past pain and suffering relates to the period of about six months after the accident. The Magistrate found that the plaintiff experienced a considerable degree of disability, pain and lack of independence during the three months after injury and diminishing up until six months after injury. He does not specifically state what degree of disability, pain and lack of independence she suffered between about August 2000 and the trial in August 2003, but it could not have been very significant because he only awarded her the sum of $500 for domestic assistance for that three year period.
A court will only interfere with an award for pain and suffering if satisfied that it is manifestly excessive. Having regard to the matters which I have mentioned, I think an award of $10,000 is manifestly excessive. To my mind, the very maximum which should have been awarded was the sum of $7,500, and I would substitute that figure for the figure of $10,000.
In relation to the awards for orthotics and specialised footwear, the plaintiff gave evidence which supports the cost of the components which form the basis of the awards. The real question is whether awards for the future are justified having regard to the Magistrate’s findings relating to pain and suffering and future domestic assistance. In the end, I am not persuaded the Magistrate has made an error, and I would not interfere with the awards for orthotics and specialised footwear.
In relation to the allowance for domestic assistance for the first twelve weeks, the plaintiff gave evidence of the assistance she required and received from her daughter and to a lesser extent her son, and her daughter gave evidence of the tasks which she performed for her mother. The assistance the plaintiff received from her children included assistance with personal hygiene, household chores and the preparation of meals. As is often the case with this type of claim, the evidence is not very precise, and on my reading of the evidence, the allowance does seem to be somewhat generous. However, I am not satisfied, having regard to the evidence, that there was not a basis for the award made by the Magistrate, and in those circumstances I would not interfere in this component of the award.
Had I upheld the Magistrate’s decision that the defendant was in breach of a duty of care she owed to the plaintiff, I would have set aside his award of damages and awarded in lieu thereof damages of $13,974.80 made up as follows:
$ 1. Pain and suffering
7,500 2. Domestic assistance
(i) First twelve weeks
3,024 (ii) Second twelve weeks
1,512 (iii) Thereafter
500 3. Orthotics
5,428 4. Specialised Footwear
2,000 Reduced by 30% for contributory negligence (19,964) $13,974.80
Conclusions
The appeal must be allowed and the judgment of the Magistrate set aside. There should be an order that there be judgment for the defendant. I will hear the parties as to the costs of the trial and the appeal.
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