Savage v Monash University
[2017] VCC 1774
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION GENERAL LIST | Revised Not Restricted Suitable for Publication |
Case No. CI-15-05439
| Shelia Savage | Plaintiff |
| v | |
| Monash University | Defendant |
| and | |
| Programmed Maintenance Services Ltd | Third Party |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14, 16, 17, 20 November 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | Savage v Monash University | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1774 | |
REASONS FOR JUDGMENT
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Subject: DAMAGES
Catchwords: Torts – industrial accident – occupier liability
Legislation Cited: Wrongs Act 1958
Judgment:Judgment for the plaintiff against the defendant. Assess the plaintiffs compensatory damages in the sum of $275,000. Determination of Third Party proceeding reserved pending further submissions.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr M Garnham of Counsel | Slater & Gordon |
| For the Defendant | Mr J Brett QC with Mr Y C Chen of Counsel | HWL Ebsworth |
| For the Third Party | Mr I McDonald of Counsel | Norton Rose Fulbfight |
HIS HONOUR:
1 In this proceeding the plaintiff seeks damages for injury sustained by her on 18 August 2010 whilst walking across a median strip crossover located between two roads at the Monash University campus in Clayton (“the crossover”) where she fell and suffered an injury to her left ankle.
2 Whilst the happening of the incident is not in dispute there were no witnesses to the incident and accordingly the evidence as to the circumstances in which the plaintiff suffered injury is confined to that of the plaintiff.
The evidence as to liability
The evidence given by the plaintiff
3 The plaintiff’s evidence as to the circumstances in which he suffered injury was brief and in its totality may be summarised as follows:
(i) On the morning of 18 August 2010 the plaintiff had parked her car in a car park within the grounds of the Monash University Clayton campus for the purpose of making her way by foot to the building in which she was employed as a security control room operator. The path to be taken by the plaintiff involved one in respect of which she was very familiar, she having undertaken that journey daily for a number of years. It involved her crossing between two divided bitumen roads within the University campus, which in turn were separated by a wide median strip.
(ii) The pathway for pedestrians traversing the median strip consisted of a compacted loose type base surface of a granitic substance variously described in the evidence as “Lilydale topping” or “Dromana topping”.
(iii) The plaintiff described the circumstances of her injury as follows:
· it had been raining the night before. The area of the median strip across which she was to walk was such that “I had to walk through puddles” “…as I got to the middle gravel area my ankle rolled outwards. I stumbled. My colleague John on the other side, waited for me to get across the second part of the road any help me into the building.”
Question: Why did your ankle roll?
Answer: There was puddles on the ground, I stepped into a puddle, not knowing that the ground was uneven underneath it and rolled my ankle.[1]
Question: I should have asked you, you said that you stepped on a puddle and you did not realise that there was an uneven surface underneath?
Answer: I couldn’t see through the puddle, …[2]
(iv) At the time at which the plaintiff suffered her injury she was wearing steel capped work boots.
[1] T 36 L 2-4.
[2] T36 L31-T37 L3.
4 In cross examination on behalf of the defendant the plaintiff was asked whether she could have skirted the puddle and responded “there was puddles all over the area. It is not like I would deliberately walk through a puddle if I could avoid a puddle.”[3]
[3] T61 L26-29.
5 It was put to the plaintiff that areas of the path were worn. She agreed with that proposition. She was asked:
Question: I’m suggesting that if you wanted to skirt that worn area that is the direct line you could have done so
Answer: It is possible.
Question: But instead you went through that and you say there was some puddles there.
Answer: There were puddles on the path yes.[4]
[4] T63 L9-14.
6 In cross examination on behalf of the third-party the plaintiff agreed that she had commenced working at the Monash University Campus in 2008 and that she had generally walked from the car park across the area in which she was injured twice a day.
The email evidence
7 A chain of emails was tendered and is Exhibit B.
8 On 18 August 2010, Mr Garth Percy the plaintiff’s supervisor, wrote to Mr Mark Corea, the defendant’s grounds curator, an email in the following terms:
“Hi Mark,
This morning a staff member rolled/sprained her ankle whilst using the pedestrian crossover outside building 61. There a(sic) some small depressions/potholes on the strip which were the cause of the injury. I have had a look at the crossover and noted that this is the busiest crossover on campus but it isn’t sealed. I discussed this with Trevor Smith and we agree that sealing this median strip would be practical as a lot of water sits on it when it rains which creates the holes.
Is it possible to discuss this with you so that we can find the best solution to rectify the problem?”
9 In response to that email Mr Corea initiated a process of investigating the replacement of the granitic surface of the crossover with a bitumen or concrete surface the most relevant of the steps involved in which were as follows:
(i) on 30 August 2010 a quote was submitted to Mr Corea from Mr Stuart Baker, the defendant’s contract manager, in the sum of $3,725 being the cost of creating a concrete walkway in the crossover.
(ii) On 3 September 2010 a quote was submitted to Mr Corea from Mr Baker the defendant’s contract manager in the sum of $2,575 being the cost of creating a bitumen walkway in the crossover.
(iii) On 6 September 2010 Mr Trevor Smith, the defendant’s security operation manager, addressed an email to Mr Corea in the following terms:
“Hi Joe
Refer attached quotations from Mark Corea for sealing the pedestrian walkway at Bldg 61
Currently there is crushed granite in place which needs constant maintenance due to the volume of pedestrians that use this crossover each day. During my time, there is been a number of pedestrians that have either tripped or fallen because of ruts that have formed in the granite.
Just recently, one of our guards (Sheila) tripped and twisted her ankle as she was using the crossover which resulted in a work cover claim and being off for 2 weeks.
Unfortunately Mark doesn’t have any funding to cover these works and I am assuming this may come under our control?
I will contact you shortly.”
(iv) On 6 September 2010 Mr Corea authorised the laying of concrete surface over the crossover.
10 There is no issue that, notwithstanding the comment made by Mr Smith in his email of 6 September 2010, Mr Smith had not previously notified any servant, agent or employee of the defendant of the fact that prior to the plaintiff’s injury a number of pedestrians had tripped or fallen by reason of the condition of the crossover.
11 Equally there is no issue, however, that Mr Smith is an employee of the defendant and the defendant is vicariously liable for the failure by Mr Smith to pass that information on.
The evidence of Mark Mahinda Corea
12 Mr Corea was at all material times the grounds supervisor of the Monash Campus. He gave evidence that the defendant had entered into a contract for the maintenance of the grounds with the third-party which was a reputable company which managed substantial facilities for entities other than the University.
13 Mr Corea said he was familiar with the area in which the plaintiff fell. He described the crossover as containing a granitic surface, the advantages associated with such a surface being that it was sympathetic to vegetation located adjacent to the crossover as it allowed water to permeate.[5] He described the disadvantages associated with the granitic surface as involving the fact that when there was a lot of traffic it becomes worn, commenting:
[5] T116.
Question: What does that lead to?
Answer: It leads to sometimes little, you know, little surface dips.
Question: If that occurs, can water pool in those in rain?
Answer: Potentially yes.
Question: What does that affect, what effect does that have on pedestrians?
Answer: It becomes more of an inconvenience to pedestrians to have to try to get through and get their shoes wet, muddy.”[6]
[6] T117 L4– 11.
14 Mr Corea described the third party as having in place a maintenance program which involved access to its own supply of gravel at the premises so that ruts which formed in the area of the crossover could be topped up and commented that it was the responsibility of the third-party to do so.[7]
[7] T118. Whilst both Mr Smith in his email and Mr Corea in his evidence made use of the term ruts I am not satisfied that there is any distinction to be drawn between a rut and a depression or that employing such a term either of those witnesses sought to highlight the presence of such a distinction.
15 There is no issue:
a. that Mr Corea inspected the area of the crossover after the plaintiff’s accident, either on 18 or 19 August.
b. that at the time of that inspection the crossover contained no puddles by reason of the fact that the water on the crossover at the time at which the plaintiff suffered injury had either drained away or been dried by the sun: and
c. that Mr Corea did not notice anything in particular which gave him cause for concern when he examined the surface of the crossover.
16 Specifically, Mr Corea commented that if he had observed a danger to be present he would have barricaded the area off but that as the result of his inspection he had no concern and he regarded the appropriate action to be one involving:
Answer: Just talk to program thereafter and instruct them that we were after a quotation.
Question: So what made you decide to get a quotation?
Answer: I think just based on the advice of security that it was a well-used path that students would….
Question: Is that Mr Percy. When you say “security”?
Answer: Yeah, it would have been either Trevor or Garth. I can’t remember who it was I was talking to at the time, but, probably Trevor Smith because he was the supervisor is at the time”[8]
[8] T120 L8 – 18.
17 At the time of his inspection Mr Corea said that although he was not aware of the exact location of the plaintiff’s fall, he did observe “a little bit of unevenness about the path in certain parts… Just very shallow, you know, 1, 2 cm sort of neat evenness… A very gradual sort of thing” which Mr Corea described as involving “a little depression”[9].
[9] T120 L28 – T121 L15.
18 Mr Corea said that:
· at the time at which he inspected the crossover it was his opinion that it had been adequately maintained;[10]
[10] T127 L21 – 22.
· there were possibly one or two other crossovers in the University of a similar type;[11]
· he had never suggested to the third party that the crossover needed an upgrade, qualifying that statement in the following terms “ not until that stage, no”[12].
[11] T128 L19-22.
[12] T1 30 L 17. In making that statement Mr Corea was clearly referring to the investigation he put into place to which I have earlier referred in order to replace the surface of the crossover with either a bitumen or concrete surface.
19 In cross-examination Mr Corea agreed that the surface of the crossover was subject to the formation of ruts and to being washed away.[13] He accepted:
[13] T143 L22.
· that puddles might form on the surface; and
· that the surface that he observed was quite different to that described by the plaintiff because all the water had gone at the time at which he made his observation.[14]
[14] T123.
20 In response to a question posited by myself, Mr Corea agreed:
· that the crossover was designed to give a straight line of access between the two bitumen roadways which it separated; and
· that it was appropriate for the defendant to consider in such circumstances the nature of the surface in a high traffic area and whether the surface should involve a permanent surface or a soft surface.[15]
[15] T146 L9 – 19.
21 Mr Corea agreed when cross-examined by Mr Harrison QC for the plaintiff that:
· Mr Percy, the plaintiff’s supervisor, was well placed to comment upon the effect of rain upon the surface and it was for that reason that Mr Corea had responded to the email from Mr Percy to which I have earlier referred;[16]
[16] T147 L8-T148 L2
· the costs of the rectification works of $2,500 was not a significant sum of money to the defendant;[17]
[17] T149 L23.
· that he did not disagree with the statement made by Trevor Smith that the crushed granite in the crossover required constant maintenance due to the volume of pedestrians that use the crossover each day;[18] but qualified that position explaining, “I wouldn’t say - it is not a daily requirement for maintenance”
[18] T150 L7-12.
Question: Okay so “during my time there has been a number of pedestrians that have either tripped or fallen because of ruts that are formed on the ground,”[19] and you have agreed that it is a risk that ruts can form when water sits on this sort of surface
[19] Here Senior Counsel was quoting from the email by Mr Smith to which I have earlier referred
Answer: Mmm.
Question: Okay that is correct is not it?
Answer: Not because of the water more because of the people walking across that yes.
Question: If it gets a bit soft your foot goes in you have created an indentation, haven’t you?
Answer: Well…
Question: If it dries out?
Answer: Yes correct
Question: Yes okay he says “There has been a number of pedestrians that have either tripped or fallen”. Now as I understand your evidence you were not aware of that having been the case?
Answer: No.
Question: Not every trip or fall is subject of a written complaint is it?
Answer: Yes. Not everyone is.
Question: So you have no reason to disagree with what … Mr Smith says there?
Answer: Yep.
Question: You would accept it I take it?
Answer: I would yes.[20]
[20] T150 L28 - T151 L20.
22 In the course of his evidence I enquired of Mr Corea as to his likely response had the email of Mr Smith been brought to his attention prior to the occurrence of the plaintiff’s injury but in circumstances in which the email contained a statement limited to the effect that there had been a number of pedestrians that had either tripped or fallen because of ruts that had formed in the surface of the crossover, to which Mr Corea responded:
Answer: I suppose we would still have gone out and inspected, sort of made some assessment of it.
Question: But in this case you did go out and make an assessment and it did not concern you?
Answer: No, that’s right.
Question: So what was it that motivated the change?
Answer: I think based on Trevor Smith’s suggestion that, you know, it was well used, tended to get a wet, things like that, so you know, a bit of inconvenience to pedestrians, so I thought why not - let us – let us look at doing something to improve.[21]
[21] T152 L18 – 27.
23 Mr Corea agreed that the works to replace the granitic surface of the crossover with a concrete surface occurred very quickly after the plaintiff’s fall, commenting that concrete was not a friendly surface for vegetation because it denied the vegetation access to the water which was available to it in the presence of the granitic surface.[22]
[22] T154 L3 – 11.
Question: Yes but in terms of pedestrians walking safely they are safer on concrete as long as is properly laid?
Answer: Oh, yes, yeah it could…
Question: Than on a permeable surface that moves?
Answer: Correct yes.
Question: Yes?
Answer: Give that to you[23].
[23] T154 L 18 – 25.
24 At no time did Mr Corea move from his position that an issue to be considered as to the surface of the crossover involved the lack of water which might be available to the plants within the median strip by reason of the installation of a hard surface rather than a permeable surface.
25 I find his evidence as to this issue to be unpersuasive however, having regard to:
a. the large area of permeable surfaces available to the vegetation within the median strip as demonstrated by the photographs of the area’s weight is all you; and
b. the fact that the photographs of the vegetation taken some years after the introduction of a concrete surface for the crossover which do not appear to demonstrate any ill effect which the change in the surface of the crossover has had upon the vegetation immediately adjacent to it.
The evidence of Garth Percy
26 Mr Percy was employed by MSS security as the site supervisor and was stationed in the building to which the plaintiff was walking at the time which was she was injured. He said Trevor Smith was also located within that building.
27 In the course of his evidence Mr Percy said that some 6,000 pedestrian movements occurred over the crossover each day and that up until the time of the plaintiff’s injury, notwithstanding his own regular use of the crossover, he had no cause for concern as to the state or safety of the crossover.[24]
[24] T169 L20 – 25.
28 Mr Percy described having gone out to look at the crossover following the plaintiff’s reported injury and having noticed the presence of very small puddles of water sitting in “very shallow impressions.” He said that having looked at the crossover he did not feel the need to erect barricades or hazard warning signs as he did not consider the crossover to be a hazard.[25]
[25] T174 L19 – 24.
29 He said that in completing the investigation section of Exhibit J he identified the uneven ground in the median strip as being an unsafe condition. He did so because “I just needed to find some cause that possibly contributed to Sheila hurting her ankle”[26], explaining:
Answer: I mean that I believe that Sheila had hurt herself and the area that she stated happened, potentially there was a – a hazard. So the only thing that I could identify that could possibly be considered unsafe were some small uneven impressions in the ground so…..
Question: Did you in fact consider them to be a hazard?
Answer: I don’t – I don’t think that they were dangerous.[27]
[26] T176 L19 – 21.
[27] T177 L10-16.
30 In cross examination Mr Percy was asked a series of questions as follows:
Question: All right. You said that you included, in - I think you said your evidence was that you referred to the uneven ground in the centre median strip because you were looking for - I think looking for an explanation?
Answer: Yes.
Question: You are not saying anything in this report is untrue, are you?
Answer: No.
Question: This report is truthful?
Answer: It's - they were my - what I was told by Sheila at the time, and my findings.
Question: And what were your findings as to what you believed to be true?
Answer: Yes.
Question: And what you believed to be true was that the unsafe condition that was identified was uneven ground in the median strip of the pedestrian crossing?
Answer: Yes, that's the only thing I could identify.
Question: As being unsafe?
Answer: Potentially unsafe.
Question: Well, you haven't said "potentially", it's under the heading, "unsafe", isn't it?
Answer: Yes.
Question: So you were satisfied with the accuracy and the truth of that when you filled this out on the day?
Answer: Ah, with the context of the form, that was the only area that I could put in some cause.
Question: Well, you weren't seeking to mislead anybody by leading this form, were you?
Answer: No, no way at all. There was no reason to.
Question: So the truth of the matter was, what you identified as the unsafe condition was the uneven ground in the median strip of the pedestrian crossing?
Answer: Yes.
Question: All right, thank you. And if we go to Exhibit B please, you did this email at 10.33 in the morning?
Answer: Yes.
Question: So it's about an hour-and-a-half after you got to work?
Answer: Yes.
Question: You said, "This morning, a staff member rolled/sprained her ankle while used the pedestrian crossing outside building 61." Do you believe that to be true?
Answer: Yes.
Question: "There was some small depressions/pot holes in the strip." That's a reference to the median strip, isn't it?
Answer: I believe so, yes.
Question: "Which were the cause of the injury", and you believe that to be true?
Answer: That was what was stated to me by Ms Savage so that's what I believed to be true.
Question: "I've had a look at the crossing and noticed this is the busiest crossing on campus but isn't sealed." That was true as a result of your enquiries? That's a fact.
Answer: Yes.
Question: "I discussed this with Trevor Smith and we agree that sealing this median strip would be practical"?
Answer: Yes.
Question: That's a reference to the median strip in the middle where she came to grief?
Answer: Yes.
Question: "As a lot of water sits on it when it rains"?
Answer: Yes.
Question: That was correct and that had been your observation in the past?
Answer: Yes.
Question: "And that creates the holes." And that was true also?
Answer: Possibly that's right, yes.
Question: Well not possibly, that's what you believed to be true?
Answer: Yes.[28]
[28] T186 L17- T188 L8.
Analysis of the evidence
Did the crossover present a danger to those persons using it
31 Given the location of Mr Percy’s workstation within building 61, I am satisfied he was extremely well placed to comment upon the effect of rain upon the surface of the crossover.
32 I am further satisfied that Mr Corea accepted the above position given:
· his immediate response to the email addressed to him by Mr Percy and his request for a quotation for the works to be undertaken, which was issued by him within 48 hours.
· his acknowledgement of that position in the course of cross examination.[29]
[29] T147 L8-T148 L2.
33 It is clear that in the course of his evidence Mr Percy sought to recant from his contemporaneous entries in the Incident Notification Form[30] (in which he described the presence of uneven ground in the crossover as creating an unsafe condition), on the basis that he held no such opinion immediately after he had undertaken an examination of the crossover.
[30] Exhibit J
34 In the course of making his entries in Exhibit J on 18 August 2010 Mr Percy was presented with a number of pro-forma boxes into which he could choose to insert a statement or decline to do so.
35 Within the five pro-forma boxes available to him Mr Percy chose to make comments in only two, namely:
· within the box headed “Unsafe Conditions-List all the Unsafe Conditions that were identified;” Mr Percy inserted the words: “uneven ground in median strip of pedestrian crossover”
· within the box headed “Agreed Corrective Actions;” Mr Percy inserted the words: Monash Security Operations Manager and Grounds department notified to repair and level the ground”.
36 In my opinion if it was the case that Mr Percy had no concerns as to the safety of the crossover:
(i) it would be unlikely that he would have made the above entries and particularly the entry identifying the corrective action which was required to make the crossover safe; and
(ii) it would be even more unlikely that he would have taken the positive action which he did of notifying the defendant’s operations that repairs to the crossover were necessary.
37 Further:
(i) the content of the email addressed by Mr Percy to Mr Corea on 18 August 2010; and
(ii) the responses by Mr Percy when cross-examined upon this issue
support the position that Mr Percy, upon undertaking an examination of the crossover, was concerned as to its safety.
38 For these reasons I do not accept Mr Percy’s viva voce evidence that he did not form the opinion upon examining the crossover shortly after the plaintiff’s injury that it was unsafe and I prefer and accept the contemporaneous statements made by him in Exhibit J as representing the opinion he formed at the time at which he undertook his inspection of the crossover on the day of the plaintiff’s accident.
39 I am satisfied for the reasons set out above that Mr Percy considered the crossover to be unsafe at the time at which the plaintiff was injured and its condition to be such that it required rectification by either repairing and re-levelling the surface or replacing the surface with an all-weather surface.
40 While it was put on behalf of the defendant that Mr Corea was best placed to assess the safety of the crossover having regard to his training, I do not accept that the process of assessing the safety of the crossover requires any expertise. In my opinion the issue involved really requires only the application of common knowledge and every day common sense, and no particular level of expertise.
41 In undertaking his analysis as to the safety of the crossover Mr Corea did not see the crossover when it was affected by water. Given that it was the combination of:
· the presence and the location of the water upon the crossover; and
· the effect of the water upon the permeable surface of the crossover;
which gave rise to any “danger” with which the plaintiff was presented at the time which she was negotiating the crossover, it follows that Mr Corea was not in any real position to assess that danger, and was certainly in a less advantageous position in undertaking that task when compared with the position of Mr Percy.
42 For the reasons set out above I am satisfied that the crossover was unsafe at the time at which the plaintiff was injured and presented a risk that users of the crossover may lose their footing as they traversed it.
43 Whilst it is put on behalf of the defendant that “given the paucity of evidence, no inference can be drawn from the fact itself that the plaintiff rolled her ankle; without further explanation, this can give no guide to the nature of the supposed “hazard” given:
a. that the plaintiff suffered her injury in circumstances in which:
(i) there is no suggestion that she was hurrying; and
(ii) her footwear was such that it would have provided her with a solid foundation as she traversed the crossover; and
b. the history of pre-previous incidents of trips and falls as persons traversed the crossover into which history the incident suffered by the plaintiff clearly falls;
I am satisfied that it was the unsafe condition of the crossover as identified by Mr Percy which caused the plaintiff to miss her footing and roll her ankle.
Should the danger associated with the crossover have been abated by a reasonable occupier
44 There is no issue that, notwithstanding the comment made by Mr Smith in his email of 6 September 2010, Mr Smith had not previously notified any servant, agent or employee of the defendant of the fact that prior to the plaintiff’s injury a number of pedestrians had tripped or fallen by reason of the condition of the crossover.
45 It is clear that the law fixes the defendant with assumed knowledge of the observations made by Mr Smith.
46 There is no issue:
(i) that the evidence of Mr Corea establishes that had Trevor Smith reported his observations that he had seen a number of pedestrians trip or fall by reason of the presence of ruts which had accumulated within the crossover an inspection of the crossover would have taken place by Mr Corea;
(ii) that Mr Corea inspected the crossover after the plaintiff’s accident either on the 18th or 19th of August, and that at the time of that inspection the crossover contained no puddles, and that Mr Corea did not notice anything in particular which alarmed him when he examined the crossover.
(iii) that any inspection convened by reason of the distribution of a report by Mr Smith in which he reported the matters described in his email of 6 September 2010 may not have revealed the presence of any potential hazard which required rectification (as was the position at the time at which Mr Corea undertook his inspection following the plaintiff’s injury).
47 I am never the less satisfied that, regardless of any failure to detect the presence of any hazard in the course of such an inspection, it is probable that Mr Corea would have acted in the way in which he did in this instance, namely to authorise the relatively small expenditure required to install an all-weather crossover with a bitumen or concrete surface.
48 I have approached the above analysis on the assumption most favourable to the defendant. In reality I am of the opinion that a reasonable occupier would have considered it appropriate to undertake an inspection of the crossover in the condition in which it was most likely to present danger to its users, namely when it was wet.
49 In those circumstances having regard to the behaviour of the crossover in the wet as described by Mr Corea, had an inspection of the crossover been undertaken in the context of knowledge of the content of Mr Smith’s email of 6 September 2010, I am satisfied that is even more likely that Mr Corea would have authorised the installation of an all-weather surface for the crossover without any delay.
50 Whilst at no time did Mr Corea move from his position that an issue to be considered as to the surface of the crossover involved the lack of water which might be available to the plants within the median strip by reason of the installation of a hard surface rather than a permeable surface, I find his evidence on this issue to be defensive and unpersuasive.
51 I make that finding having regard:
(i) to the large area of permeable surfaces available to the vegetation within the median strip: and
(ii) the fact that the photographs of the vegetation taken some years after the introduction of a concrete surface for the crossover do not appear to demonstrate any ill effect of the change in the surface of the crossover upon the vegetation immediately adjacent to it.
52 It follows that I am satisfied that, had Mr Smith forwarded to Mr Corea an email in which he described his observations that a number of pedestrians had tripped or fallen because of ruts which had formed in the surface of the crossover, Mr Corea would have implemented steps to install an all-weather surface regardless of any failure on the part of Mr Corea to detect the presence of a hazard with the crossover.
53 I make that finding on the basis of my satisfaction that an occupier acting reasonably would have done so given:
a. the central location of the crossover;
b. the difficulties identified by Mr Corea in the course of his evidence to which persons employing the crossover were exposed whilst traversing it in the wet;
c. the volume of people who daily traversed the crossover (namely approximately 5000 per day) each of whom:
(i) in wet weather were exposed at a minimum to the inconvenience described by Mr Corea in his evidence; but
(ii) may equally have been exposed to the risk of losing their footing, tripping or falling and the possibility of sustaining the vast range of potential injury associated with an incident of that type;
d. the potential effect which an adverse weather event such as a significant thunderstorm may have upon the loose surface of the crossover by exposing it to a large quantities of water and the potential of immediate degradation by reason of the presence of such water ;[31]
[31]Although there is no specific evidence as to the latter of the two propositions developed by me I make those statements having regard to the evidence given as to the nature of the crossover and the effect which the presence of water could have upon the crossover and applying to that evidence common life experience.
e. the modest cost involved in replacing the crossover with an all-weather surface;
f. the activity undertaken by the defendant to install a concrete surface in the crossover, which activity was initiated no later than 48 hours after Mr Corea examined the crossover following the plaintiffs injury notwithstanding the fact that his examination failed to raise any concern in Mr Corea as to the lack of safety of the crossover.
54 In closing submissions Senior Counsel for the defendant relied upon the evidence that the depression the cause of the plaintiff’s injury had been estimated to involve a depth of no more than 1-2 centimetres. On that basis it was submitted that the irregularity was such that it involved no greater risk than that which would be encountered and accepted as being reasonable in the course of everyday life.
55 In my opinion this is overly simplistic in the circumstances of the present case.
56 When account is taken of:
(i) the well-known extremely high usage of a designated path consisting of a surface which was prone to degradation not only by reason of the number of people using the path but also the weather conditions;
(ii) the knowledge of the defendant of the history of incidents of tripping and falling prior to the plaintiffs injury caused by the nature of the surface of the crossover;
(iii) the potential for the uneven nature of the surface to be masked by reason of the combination of the presence of water and the porous nature of the surface of the crossover;
(iv) the presence of puddles as described by the plaintiff, namely:
“all over the area. It is not like I would deliberately walk through a puddle if I could avoid a puddle.”[32]
it follows that the defendant chose to ignore the potential danger to pedestrians arising by reason of the uneven and potentially unstable surface in which the effect of the porous and wet nature of the surface was to mask the presence of that danger to which users of the crossover were exposed.
[32] T61 L26-29.
57 For these reasons I am satisfied that:
(i) a reasonable occupier would not have considered a granitic surface to be suitable or safe and would have installed an all-weather crossover of either bitumen or concrete; and
(ii)
it is probable that Mr Corea, had he possessed the information known to Mr Smith, would have acted in the way in which he did in this instance, namely to authorise the relatively small expenditure required to install an all-weather crossover with a bitumen or concrete surface.
Analysis in accordance with the provisions of the Wrongs Act
58 Section 14B (4) of the Wrongs Act provides that the following criteria must be considered when determining whether the duty of care of an occupier has been discharged;
a) the gravity and likelihood of probable injury;
b) the circumstances of entry onto the premises;
c) the nature of the premises;
d) the knowledge which the occupier has or to have of the likelihood of persons or property being upon the premises;
e) the age of the person entering the premises
f) the ability of the person entering the premises to appreciate the danger;
fa) …
fb) … [33]
g) the burden on the occupier of eliminating the danger of protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
[33] It is not suggested that the provisions of subparagraphs (fa) or (fb) have any relevance in this instance.
59 The analysis and findings undertaken by me above deals in most respects with the various categories required to be considered under the provisions of the Wrongs Act.
60 I am satisfied however that I should make formal findings with respect to each of the above categories which in my view comprehensively deal with the matters required for my consideration in this instance.
61 In doing I so rely on my previous analysis and findings as set out above which should be incorporated where appropriate within in the summary analysis undertaken by me of the various categories identified by the Act.
(a) the gravity and likelihood of probable injury
62 There can be no issue that a vast number of people made use of a designated pathway created specifically to facilitate their safe access across two roadways on a daily basis.[34]
[34] Namely 5,000 to 6,000.
63 Given the nature of the surface of the crossover, I am satisfied that its users were exposed to a potential of risk of injury arising by reason of:
· deterioration in the surface of the crossover merely by reason of the extreme levels of pedestrian traffic which it carried; and/or
· deterioration in the surface of the crossover when it was wet. In particular it is in my opinion trite that the exposure of the crossover to significant quantities of water being deposited in the course of an extreme weather event such as a thunderstorm must have carried the possibility that a significant degradation of the soft fill surface might occur in circumstances in which persons using the crossover may be running to escape the rain.[35]
[35] As I have previously commented although there is no specific evidence as to the latter of the two propositions developed by me, I make those statements having regard to the evidence given as to the nature of the crossover and the effect which the presence of water could have upon the crossover and applying to that evidence common life experience.
64 Weight, of course, should be given to the fact that the incidence of reported injury associated with the crossover was extremely low given the large numbers of persons using the crossover.
65 It is clear that the relationship between the incidence of injury and the use of the crossover was extremely low having regard to the numbers of persons who access the crossover. I am satisfied however that those figures must be approached with a modest degree of caution to take account of the fact that:
(i) many incidents of tripping or slipping which did not occasion injury may not be reported; and
(ii) the crossover was most probably safe when it was dry and was rendered potentially unsafe by reason of the presence of water or water damage.
66 Equally weight should be accorded to the potential for significant injury in the form of fracture of wrists or other bones in association with unguarded falls, in in the context of the fact that the defendant was on notice that pedestrians had either tripped or fallen because of ruts which had formed in the surface of the crossover, the surface of which was such that require was such that it required:
· constant maintenance on the opinion of Mr Smith;or
· regular maintenance in the opinion of Mr Corea
due to the volume of pedestrians making use of the crossover.[36]
[36] See the content of Mr Smith’s email dated 6 September 2010, about which Mr Corea generally agreed commenting however that in his view the crossover required regular rather than constant maintenance and the evidence of Mr Corea to which I have previously referred.
(b)the circumstances of entry onto the premises;
(c) the nature of the premises; and
(d) the knowledge which the occupier has or to have of the likelihood of persons or property being upon the premises
67 There can be no issue that thousands of people each day were invited to use the crossover by the fact that:
(i) the defendant conducted a tertiary learning institution and established a car park for those users; and
(ii) the defendants created a designated pedestrian crossover between the two bitumen surfaces and effectively directed persons making their way to and from its car park to make use of the crossover.
(e) the age of the person entering the premises; and
(f) the ability of the person entering the premises to appreciate the danger
68 Clearly the majority of persons making use of the property was such that they were of an age which enabled them to appreciate dangers which might be present when negotiating footpaths.
69 The danger in question, namely the presence of an unexpected alteration in the surface in the form of an undulation, which although minor in nature may nonetheless cause a loss of footing, was hidden by the effect of the water on the porous nature of the surface of the crossover.
70 There was no suggestion in cross examination of the plaintiff that she should have been aware of the presence of the depression or that she should have guarded against it.
71 While it was put to the plaintiff that she could have avoided the puddle created by the depression it was not suggested to her that she acted unreasonably in failing to do so.
72 For these reasons I am satisfied that I should take the view that the danger was one which was hidden and of a type which might escape the attention of persons using the crossover by reason of mere inadvertence on their part.
(g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.
73 My earlier findings and analysis deal definitively with this issue.
74 It was Mr Corea’s evidence that the costs associated with creating a concrete surface were of no real significance.
75 The fact that the works were in fact undertaken within a short period of time of the plaintiffs injury demonstrates the relative absence of any burden upon the occupier in eliminating the danger associated with tripping hazards arising by reason of the degradation of the surface of the crossover.
Conclusion as to findings as to liability
76 For the reasons set out above I am satisfied that the plaintiff has established that the defendant is liable to compensate her for the injury sustained by her on 18 August 2010 by reason of its failure to take such care as was in all the circumstances reasonable to see that she would not be injured by reason of the state of the crossover or things done or omitted to be done in relation to the state of the crossover.
Contributory negligence
77 In so far as it is put on behalf of the defendant that the plaintiff failed to take reasonable care for her own safety which was a cause of her injury in my opinion the evidence does not establish that that was the case for three reasons:
a) Firstly, it was the defendant who chose to present a crossover with a permeable, non-all-weather surface which was prone to deterioration, and to accumulating water to various degrees and in various locations, to the thousands of people who employed it every day. To suggest that any person who elected not to jump puddles in some way failed to take reasonable care for their own safety is unreasonable in my opinion;
b) Secondly, the plaintiff described the area as containing the presence of puddles generally and, having regard to the nature of the shoes she was wearing, namely work boots which no doubt would have provided solid and robust footing, I am satisfied it was not unreasonable for the plaintiff to have elected to travel in a straight line across the area rather than to zigzag her way down the path;
c) Thirdly, it is clear that Mr Corea was aware that users of the crossover adopted the type of behaviour given his comment as to the inconvenienced to users associated with the fact that when the crossover was wet the users would be exposed to wet and muddy shoes. That would not be the case if it was the usual practice of persons making use of the crossover to pick their way down the pathway by avoiding areas of water.
78 In that sense the evidence establishes that the plaintiff approached her negotiation of the path in the similar manner to other users of the path and that, in so far as her safety in making that choice was involved, the plaintiff was most probably in a better position than other users of the path having regard to the nature of the shoes she was wearing
Conclusion as to findings as to Contributory Negligence
79 For the reasons set out in my findings above I am not satisfied that the defendant has established the presence of any contributory negligence on the part of the plaintiff.
Damages
80 In this instance I am required to assess only the plaintiff’s general damages.
81 There is no issue that the potentially trifling injury which was initially occasioned to the plaintiff has had a catastrophic effect upon her life and lifestyle and gives rise to an extremely significant level of disability.
82 The plaintiff’s evidence as to that effect was unchallenged and may be summarised as follows;
a. the injury which initially declared itself as involving a minor strain of the ankle was treated by the performance of at an arthroscopy on 20 June 2011 by reason of the presence of continuing symptoms;
b. following her arthroscopy the plaintiff’s condition deteriorated such that she developed a condition of chronic pain disorder which has been managed through rehabilitation and the prescription of medication without any real benefit either in the level of symptoms with which the plaintiff presents or her capacity for activity;’
c. the plaintiff described every day as being a challenge to her. She said she was in constant pain which in the winter months has been excruciating such that she did not want to leave her house. She described warm weather as causing her ankle to swell and making it difficult for her to move around. The plaintiff’s ability to walk is extremely limited. She makes use of a walking stick and a cam walker.
d. The plaintiff said that gave she employed Panadeine forte (two tablets four times a day), Norspan patches weekly and Panadol Osteo as required. She said she now suffers from pain in her lower spine the level of which was variable. The plaintiff described her weight as having increased from 95 kg at the time of the accident to 145 kg at the present time.
e. The plaintiff described herself as being a resilient person before her injury and as being able to cope with the responsibility and emotional pressure associated with working in the security industry. In contrast she described her mental state now as being negative, depressed and anxious with a tendency to be forgetful.
f. The plaintiff said she had lost her ability to work which made her feel sad. She described her ability to cook, clean or work in the garden as basically lost to her.
g. The plaintiff has a 13-year-old son. She can drive him to school and pick him up but she was denied the ability to engage in any real activity with her son in a physical sense describing the fact that she could really only provide her son with sedentary support.
h. The plaintiff said that water falling on her foot when she was having a shower was extremely painful describing the sensation as “like someone throwing nails that it.” The plaintiff said that when she sleeps she lies on her stomach with her ankle hanging over the bed so that it is not touched by the sheets as the pressure of the sheets aggravates her condition. The plaintiff has not been able to share a bed with her husband for many years.
i. The plaintiff’s partner described the plaintiff as being the breadwinner in the family before her injury. He described the plaintiff before the accident as being an active person explaining “… before, she was a very active person. We used to always do a lot of stuff together. Now we do not do anything together because she cannot do anything.”[37]
[37]See the plaintiff’s evidence in chief about which no challenge was made or issue was taken as to her level of activity.
j. The plaintiff’s treating general practitioner described the plaintiff at the present time as presenting with neuropathic pain and resultant depression and anxiety. She described the plaintiff’s prognosis as being very poor, commenting it was unlikely that the plaintiff would make a recovery as there has been no improvement in her condition for over seven years. She said that the plaintiff’s pain was persistent and constant and worse in cold weather or if something touches her foot such as bedclothes. She described the plaintiff’s pain relief as being sub optimal and involving prescription drugs Panadeine Forte, Norspan patches and Panadol osteo, opining:
“Sheila has suffered and continues to suffer severe pain, distress and reactive depression due to the chronic nature of her condition and the lack of progress with any treatment in the past and no prospect of future treatment.
Her sleep is poor due to the pain that she suffers at night in her ankle. This also affects her mood and concentration. She has also gained a great deal of weight due to her sedentary lifestyle which is a direct result of injury. This also increases her depression. The weight gain in seven years is a major distress for her and affects her confidence as well as her mood.
Sheila is able to perform the tasks of daily living and personal hygiene, but is unable to perform domestic tasks or cooking. Her lifestyle and family life has been completely altered by her disability. She must wear a walker on her left ankle and foot, uses stick and is unable to walk any distance.”
83 In the course of the trial no issue was taken with any of the evidence given by the plaintiff as to her level of pain, her need for medication, her incapacity for activity or the permanence of her condition. Nor was any issue taken as to the plaintiff’s evidence as to the effect of her condition upon her lifestyle, her capacity for activity or capacity for work.
84 As to the impact of the plaintiff’s loss of capacity for work I am satisfied that that represents a significant loss to her having regard to her evidence as to that loss.
85 The plaintiff was born on the 17 September 1969. She is currently 48 years old. She sustained her injury shortly before her 41st birthday. Whilst the exact timeframe in which a chronic pain disorder developed is unclear I am satisfied that:
· the plaintiffs symptoms have manifested themselves in their current level of intensity for a period of approximately the last 6 years and
· those symptoms are likely to continue unabated for the balance of the plaintiff’s life.
86 In the circumstances I am satisfied that I should assess the plaintiffs compensatory damages in the sum of $275,000.
The third-party proceedings
87 Given the mistaken position taken by Senior Counsel for the defendant that the third-party proceedings entitled the defendant to some form of contractual relief other than that potentially afforded to it by reason of the presence of a contractual indemnity, I am satisfied that it is appropriate that I should hear that the defendant and the third party further upon the issue of the third party’s liability once the parties have the opportunity of considering my reasons in this instance.
Orders to be made
88 I will hear the plaintiff and the defendant upon the form of the order which should be made in this instance and also upon the issue of costs.
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