Schneider v State of New South Wales
[2009] NSWDC 108
•16 October 2009
CITATION: Schneider v State of New South Wales [2009] NSWDC 108 HEARING DATE(S): 11, 12, 13, 14, 19 November 2008
JUDGMENT DATE:
16 October 2009JURISDICTION: Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the plaintiff;
2. Damages are assessed in the sum of $1,204,371;
3. After applying a discount of 35 per cent to reflect the findings made pursuant to s 151Z(2) of the Workers’ Compensation Act 1987 the plaintiff’s verdict is adjusted to the sum of $782,841;
4. Judgment for the plaintiff in the amount of $750,000;
5. The defendant is to pay the plaintiff’s costs;
6. The exhibits may be returned;
7. Liberty to apply on 7 days notice if further orders are required, including any application by the plaintiff to have the amount of the judgment varied to an amount beyond $750,000, pursuant to s 51(2)(b) of the District Court Act 1973 by reason of s 51(4) of that Act.CATCHWORDS: TORTS – negligence – occupier’s liability – workplace injury – school cleaner employed by contract cleaner engaged by defendant occupier to clean school – plaintiff required to walk through school playground in darkness in order to access workplace – plaintiff fell into an open drainage pit left uncovered by vandals – whether negligence established – whether contributory negligence established – whether non-party employer would be liable if sued – s 151Z(2) fault calculus - DAMAGES– assessment of multiple heads of damage LEGISLATION CITED: Civil Liability Act 2002
Crown Proceedings Act 1988
Workers’ Compensation Act 1987CASES CITED: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538
Australian Iron & Steel Pty Ltd v Luna [1969] HCA 66; (1969) 123 CLR 305
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Commissioner of Police v Rea [2008] NSWCA 199
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 214 ALR 349
Ghunaim v Bart [2004] NSWCA 28
Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor [2007] HCA 15; (2007) 229 CLR 498
Hackshaw v Shaw [1984] HCA 84
J Blackwood & Son v Skilled Engineering [2008] NSWCA 142
J Blackwood & Son Steel & Metals Pty Ltd v Nichols & Anor [2007] NSWCA 157
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mason v Demasi [2009] NSWCA 227
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254
Papatonakis v Australian Telecommunications Commission & Anor [1985] HCA 3; (1985) 156 CLR 7
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Stannus v Graham (1994) Aust Torts Reports 81-293
State of New South Wales v Moss [2000] NSWCA 133
Stevens v Broddribb Sawmilling Company Pty Ltd [1986] HCA 1; (1986) 160 CLR 16
Stretenovic v Reed [2009] NSWCA 280
Strinic v Singh [2009] NSWCA 15
Tarabay v Liete [2008] NSWCA 259
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40PARTIES: Nadine Schneider (Plaintiff)
The State of New South Wales (Defendant/First Cross-Claimant)
ISS Facility Services Australia Pty Limited (First Cross-Defendant)
Resemo Pty Limited (Second Cross-Defendant)FILE NUMBER(S): 479 of 2008 COUNSEL: Mr P Mooney (Plaintiff)
Mr G J Parker (Defendant/First Cross-Claimant)
Mr Robertson (Second Cross-Defendant)SOLICITORS: Steve Masselos & Co (Plaintiff)
Dibbs Barker (Defendant/First cross claimant)
Stephen Joseph Lee (Second cross defendant)
JUDGMENT
Table of Contents
A. INTRODUCTION Nature of the case [1] The parties [2] – [4] Issues for determination [5] Credit of the plaintiff [6] Assessed heads of damage [7] Summary of findings [8] Witnesses [9] Documentary evidence [10] B. LIABILITY Facts [11] – [53] Plaintiff’s pre-injury circumstances
[11]
Pre-injury work history
[12] – [13]
Pre-injury health and demeanour
[14]
Employment as a cleaner at the school
[15] – [18] Description of the location where the plaintiff was injured
[19] – [20] Circumstances of injury
[21] – [24] Survey of evidence concerning lighting and vandalism issues
[25] – [53]
Evidence of the plaintiff
[25]
Evidence of Mrs Coulthart
[26] – [38]
Evidence of Mr Garland
[39] – [44]
Evidence of Mr Andoni
[45] – [51]
Groundsman’s maintenance book
[52] – [53] Issue 1 – External lighting in the school grounds [54] – [64] Issue 2 – Removal of the covering grates of the drainage pits [65] – [75] Issue 3 – The duty of care owed [76] – [78] Issue 4 – Breach of duty of care [79] – [108] Issue 5 – Causation [109] – [112] Issue 6 – Contributory negligence [113] – [125] Issue 7 – s 151Z(2) and culpability of employer [126] – [158] C. DAMAGES ISSUES Injuries [159] – [160] Initial treatment [161] Evolution of further symptoms [162] Further injury at work in May 2005 [163] Medical investigations and further treatment [164] – [183] Dr Bourke
[164] – [165] Dr Morton
[166] – [168] Dr Crimmins
[169] – [170] Dr Singh-Panwar
[171] Ms Grant
[172] – [176] Dr Butler
[177] – [178] Dr Ciardi
[179] – [183] Assessments at request of plaintiff’s solicitor [184] – [197] Ms Morrow
[184] – [187] Dr Patrick
[188] – [196] Ms Davidson
[197] Assessments at request of workers’ compensation insurer [198] – [212] Dr Kapilla
[198]] Rehab Management
[199] – [201] Mr Stanton
[202] Dr Assem
[203] – [206] Ms Dallen
[207] – [209] A/Prof Oakeshott
[210] – [212] Assessments at request of defendant’s solicitor [213] – [224] Dr Bye
[214] – [216] Dr O’Neill
[217] – [218] Dr Dalton
[219] – [221] Dr Virgona
[222] – [224] Resolution of conflicting medical opinions [225] – [245] Whether plaintiff’s hands or wrists were injured
[226] Cause of plaintiff’s carpal tunnel syndrome
[227] – [238] Defendant’s responsibility for plaintiff’s psychological problems
[239] – [244] Work incapacity and domestic assistance
[245] Disabilities [246] – [251] Physical disabilities
[247] Psychological disabilities
[248] Work history post-injury [249] – [251] Rehabilitation and mitigation [252] Probable life span [253] D. ASSESSMENT OF CLAIMED HEADS OF DAMAGE Non-economic loss [255] – [263] Past loss of earnings [264] – [270] Fox v Wood [271] Future loss of earning capacity [272] – [301] Past loss of superannuation [302] Future loss of superannuation [303] Past domestic care services [304] – [318] Future domestic care services [319] – [343] Future treatment [344] – [357] Past out-of-pocket expenses [358] Tabulated summary of damages assessment [359] E. DISPOSITION AND ORDERS Disposition [360] – [361] Orders [362]
A. INTRODUCTION
Nature of case
1. The defendant is the occupier of the grounds of Toukley Primary School. The plaintiff was employed by a cleaning company contracted to the defendant to work as a cleaner at the school. In order to carry out her duties at various places within the school grounds the plaintiff was required to walk in darkness in the early hours of the morning through unlit areas of those grounds. On the morning of 24 February 2005, as she did so, she fell into an open drainage pit that had been left uncovered by vandals in an unlit area within the school playground. The defendant denied that the area where the plaintiff had fallen was unlit. The defendant also denied that it was aware of the episodic practice of vandals to remove the covers of drainage pits. The defendant therefore denied liability for the incident.
The parties
2. The plaintiff was employed by a cleaning contracting company, Resemo Pty Ltd. She was employed to work as a cleaner at the Toukley Public School. At different times her employer had various names : Tempo Cleaning Services Pty Ltd, Transfield, Resemo Pty Ltd, Davyn Pty Ltd and ISS Facility Services Australia Pty Limited. Ultimately, nothing of significance to the issues in the case turned on these name changes. The plaintiff’s employer was not made a party to these proceedings.
3. The defendant, the State of New South Wales is joined pursuant to s 5 of the Crown Proceedings Act 1988. The defendant is a public authority that occupied the premises known as the Toukley Primary School at Toukley, NSW.
4. There were cross-claims between The State of New South Wales and ISS Facility Services Australia Pty Limited and Resemo Pty Limited, however, these cross-claims were resolved by way of consent orders made and entered at the commencement of the hearing. No further orders are required with regard to those cross-claims.
Issues for determination
5. The following issues arise for determination:
(a) Whether external lighting was operating to illuminate the area of the school grounds where the plaintiff fell and injured herself;
(b) Whether the school authorities either knew or ought to have known that in the months leading up to the plaintiff’s injury, on a number of occasions vandals had removed the covering grates of drainage pits located within the school grounds;
(c) The existence, nature and content of the duty of care owed to the plaintiff by the defendant;
(d) Whether there were relevant breaches of the duty of care owed, and if so in what respects;
(e) If the defendant was in breach of the duty of care owed, whether the plaintiff’s injuries were caused by such breach or breaches;
(f) Whether the defendant has established that there was contributory negligence on the part of the plaintiff, and if so, to what extent should such contributory negligence be apportioned against the plaintiff;
(h) The assessment of the multiple heads of damage claimed by the plaintiff.(g) For the purposes of s 151Z(2) of the Workers’ Compensation Act 1987, whether the plaintiff’s employer, if sued, would have been found to have been negligent, and if so, to what extent should the plaintiff’s damages be reduced on account of such negligence;
Credit of the plaintiff
6. Apart from suggesting that she may have been mistaken about the lighting in the area, a suggestion that was denied by the plaintiff, the defendant made no attack on the plaintiff’s credit. My assessment of the plaintiff is that she was a credible witness. It is significant that in the context of some of the plaintiff’s complaints that were considered to be of a non-organic nature and being psychologically maintained, none of the medical examiners suggested the plaintiff to be feigning or exaggerating her symptoms. On the contrary, several of the defendant’s medical examiners regarded the plaintiff as being genuine in her complaints. Although she was extremely nervous when she gave her evidence and at times tremulous and tearful, I consider that the plaintiff gave her evidence carefully and truthfully. Her descriptions of her injury related problems were moderate, understated and without exaggeration. I accept the plaintiff’s evidence concerning the manner in which she came to be injured, I accept the plaintiff’s account of the effects of the injury upon her and her account of the remaining disabilities from those injuries. Having formed these views I consider that the similarities and consistency in the plaintiff’s evidence and the histories of her complaints as recorded by the various medical and other practitioners who have examined her enables me to comfortably rely upon the detail of those recorded histories in this case as being truthful.
Assessed heads of damage
7. A total of ten claimed heads of damage required assessment. These are listed below together with paragraph references:
Head of Damage
Paragraphs (a) Non-economic loss
[255] - [263] (b) Past loss of earnings
[264] - [270] (c) Fox v Wood
[271] (d) Future loss of earning capacity
[272] - [301] (e) Past loss of superannuation
[302] (f) Future loss of superannuation
[303] (g) Past domestic care services
[304] - [318] (h) Future domestic care services
[319] - [343] (i) Future treatment
[344] - [357] (j) Past out-of-pocket expenses
[358]
Summary of findings
8. For the reasons that follow I have found that at the time of the plaintiff’s injury the external lighting within the school grounds did not illuminate the area where the plaintiff had fallen. I have also found that the school authorities knew and ought to have known in the months leading up to the plaintiff’s injury, vandals had on a number of occasions been removing the covers of drainage pits within the school grounds. I have found that the defendant was in breach of the duty of care that was owed to the plaintiff and the defendant was therefore negligent. In arriving at that finding I have found that the plaintiff has satisfied the requirements of establishing foreseeability and causation as required by ss 5B and 5C of the Civil Liability Act 2002. I have found that the defendant has failed to demonstrate any contributory negligence on the part of the plaintiff. I have found for the purposes of s 151Z(2) of the Workers’ Compensation Act 1987 that if the plaintiff’s employer had been sued, the employer’s responsibility for the plaintiff’s injury would have been assessed at 35 per cent. I have assessed the plaintiff’s damages at $1,204,371. Applying the calculus required by s 151Z(2) of the Workers’ Compensation Act 1987 to that assessment, the assessment of the plaintiff’s entitlement to damages is reduced to the amount of $782,841.
Witnesses
9. The following witnesses were called to give evidence on the issue of liability:
(a) The plaintiff, Mrs Nadine Schneider;
(b) Mrs Barbara Coulthart, a former cleaner at the school and a work colleague and supervisor of the plaintiff;
(c) Mr Derek Garland, a general assistant and groundsman who was employed by the defendant to carry out maintenance work at the school;
(e) Mr Alan Andoni, the principal of the school at the time of the plaintiff’s injury.(d) Mr Joseph Schneider, the father of the plaintiff;
Documentary evidence
10. Bundles of medical reports were tendered as exhibits by each of the parties. No medical experts were called to give oral evidence. The parties also tendered photographs showing different perspectives of the scene where the plaintiff was injured.
B. LIABILITY
Facts
Plaintiff’s pre-injury circumstances
11. In the ensuing paragraphs I have reviewed and set out the facts concerning the plaintiff’s work history, her pre-injury health and her employment as a cleaner at the school as these matters provide a non-contentious and relevant background to the determination of the liability and damages issues.
Pre-injury work history
12. The plaintiff was born in 1957. She was aged 48 years when she was injured and she was aged 51 years at the time of the hearing. She had left school when aged 16 years and shortly afterwards commenced full-time work as a receptionist for a pest control company. She later moved to New Zealand where she lived between 1989 and 1998. She had been married and she has two children who are now adults. Whilst in New Zealand she separated from her husband and following this she returned to Australia with her children to live near her parents on the central coast of NSW. Whilst in New Zealand she had trained as a diversional therapist working with the elderly and she pursued that line of work in a nursing home for about 5 years.
13. Shortly after her return to Australia the plaintiff undertook a TAFE course for 6 months as she wanted to continue to work in the care of the elderly. This gave her the qualification of assistant in nursing. She then obtained employment in a nursing home in Wyong where she worked for about a year until she left that employment because the work did not meet her expectations compared to her experience of such work in New Zealand. She then obtained full-time work as a receptionist for about one year at a local medical centre. She found the work in the medical centre stressful so she decided to leave in order to obtain work as a cleaner. At the beginning of 2005 she secured her pre-injury job as a school cleaner. She had been prompted to seek out that work because her father had worked as a cleaner at a local high school for many years.
Pre-injury health and demeanour
14. Before her injury the plaintiff was in reasonably good physical health. She had however experienced significant periods of stress in her life. She found the experience of marital separation particularly stressful and difficult. In 1998 she underwent a tubal ligation which resulted in her experiencing a long period of adjustment to what proved to be a premature menopause at about age 41 years. She also experienced panic attacks in connection with her menopause and had a pre-injury tendency to anxiety and was vulnerable to the effects of stress. The plaintiff had a prior history of hand symptoms during pregnancy and later in menopause. On occasions she had experienced some episodes of numbness when she slept on her hands which did not cause lasting problems. She had no pre-existing problems with her hands that adversely affected her ability to work or to perform housework. The plaintiff was described by her work colleague Mrs Coulthart as being very friendly, easy to get along with and liking a laugh and a joke. That evidence was not challenged. The plaintiff’s father said in evidence that the plaintiff enjoyed wellbeing and a good quality of life before her injury. His evidence left me with the impression that the plaintiff was a capable and independent person before her injury. That evidence was not challenged.
Employment as a cleaner at the school
15. In January 2005, after the plaintiff had obtained work as a cleaner, she was initially assigned to work at a local high school. Later, after attending an afternoon induction seminar arranged by her employer in Newcastle, at which the plaintiff was taken through the employer’s training manuals concerning the requirements of the work, she was assigned to work as a cleaner at the Toukley Public School. The seminar she attended dealt with the employer’s requirements and procedures for the plaintiff to log on to work, the hours of work she was required to carry out and the nature of the cleaning duties she was required to perform. At that time she did not receive any particular training or orientation concerning the conditions that prevailed in the school grounds and the places within those grounds at which she was expected to carry out her duties.
16. The plaintiff’s assigned working hours comprised a split shift arrangement to commence on weekdays at 5.00am and conclude at 8.30am and to then resume at 2.30pm and continue until 4.45pm. She was given a list of the duties she was expected to carry out. These duties included attending at the administration block of the school grounds first thing in the morning in order to sign on for work. She was then required to take her cleaning materials from a cleaner’s cupboard or storeroom and to then proceed to work in various places from time to time assigned to her by her supervisor from within a group of buildings comprising the administration block and the classrooms of the school. The cleaning materials she was required to carry in the course of her work consisted of a vacuum cleaner back pack, a bucket, a mop, a broom as well as some cleaning materials and cleaning cloths. Her normal cleaning duties required that she carry out the tasks of vacuuming, dusting, wiping desks, mopping, cobwebbing and basic cleaning at the school.
17. The person assigned by the employer to supervise the plaintiff in the performance of her duties at the school was the senior cleaner on site, Mrs Barbara Coulthart, a co-employee. She showed the plaintiff around the site on the day she commenced work which was towards the end of the 2004/2005 school holidays. During the remainder of the January 2005 school holidays the plaintiff’s cleaning duties at the school were initially carried out from 7.00am during daylight hours. However, once school term had commenced in February 2005, the plaintiff was required to start work at the designated time of 5.00am at which time it was still dark. The work system required, if the need arose, that the plaintiff should raise with her supervisor rather than with school authorities, any work-related issues of concern or that required repair or maintenance attention. The plaintiff was aware that there was a logbook for such matters to be recorded.
18. The plaintiff had no difficulties carrying out the work required of her before she was injured. The parties were agreed that the plaintiff’s earnings for the period from 24 January 2005 until 30 June 2005 was at the rate of $400 net per week.
Description of the location where the plaintiff was injured
19. The location within the school grounds where the plaintiff was injured can be seen from the photographs that were tendered. Exhibit “B” shows both a general perspective and a close view of the drainage pit with the grate cover in situ. This was located in a concrete paved apron area adjacent to a small toilet block building. Exhibit “C” comprises two closer views of the drainage pit showing the covering grate having been removed – these two latter views provide a context and understanding to the plaintiff’s description of how at the time of her injury, she stepped forward and fell into the uncovered drainage pit hole.
20. The defendant’s Exhibit “3” reveals another view of the location of the drainage pit with the cover in situ. Relevantly, Exhibit “3” showed the location of a fluorescent light tube that was fitted under the eaves of the building comprising the toilet block. This was one of two such fittings on that building. I infer from the view of the building structure on which the fluorescent light was fitted as shown in Exhibit “B” and Exhibit “3” that the light fitting was above and to the left of the corner of the toilet block and, if it was illuminated during the hours of darkness, it was likely to project some light over the area where the drainage pit in question was located.
Circumstances of the injury
21. At about 5.10am on Thursday 24 February 2005 the plaintiff attended at the school premises in order to commence work on her usual early morning cleaning shift. After entering the grounds she went to the administration block to sign on for work. Shortly afterwards she picked up her work materials from where they had been stored and she then walked towards the classrooms in order to carry out her work. To do this, she described how she had to walk in darkness past the toilet block within the grounds. This was situated about 100m from the administration block. She said she was unaware of the location of the switches to illuminate the lighting in the area in question. She said she could not recall a light being on at the time of her injury. She recalled that in the year following her injury there was an automatic system which operated to turn on the lights in that area.
22. At about 5.15am on the day in question, shortly after she commenced work, the plaintiff walked past the area of the toilet block. The lights of the administration building had been previously switched on but at that time those lights were some distance away from the vicinity of where she was walking and where she came to be injured. I infer from her description this meant that the lights from the administration block did not project illumination into the area of the drainage pit so as to render the drainage pit visible. The plaintiff described how on the occasion in question she walked cautiously and without rushing. She said that she was afraid of the darkness and she said she was concerned about not being able to see in the darkness of the grounds.
23. She said she had walked in a normal manner across the paved area of the playground and she then proceeded to pass over the particular spot where she was injured. She said that as she did so she stepped forward and fell a short distance down and into an uncovered hole, finding herself knee-deep in leaves. She said that she had landed on her tailbone but that in the fall her arms had swung around and she had landed with her hands beside her in a backward position, having come into contact with the concrete surface surround of what I infer from her description was the concrete perimeter of the hole into which she had fallen. She said she found herself sitting on the ground with the vacuum cleaner back pack wedged into her neck. She described the fall as being a heavy one. She said she was aware that her hands were hurting.
24. When her evidence was tested on the issue of whether the area was lit, the plaintiff was adamant that at the time she was injured there was no lighting projected in the immediate vicinity of the toilet block area. She denied she could be mistaken about that issue. In cross-examination the plaintiff agreed that she did not ask her employer for a torch for use at this site before she was injured. She agreed that the employer had provided a torch for use at the site after she was injured. Significantly, the plaintiff agreed with the suggestion that if she had been provided with a torch and if it had been pointing in the right direction at the time it would have made a difference to her being injured. She agreed that her employer had required her to walk in the area where she was injured whilst that area was in darkness. She denied that she had been running at the time that she fell. No evidence was called to contradict her denial.
Survey of evidence concerning lighting and vandalism issues
Evidence of the plaintiff Mrs Nadine Schneider
25. The plaintiff’s initial evidence on the lighting issue was that the area in which she fell was not lit and was in darkness. When the plaintiff’s evidence on this issue was explored in cross-examination it became clear that whilst she was uncertain as to whether or not the lighting over the area she fell had been working during the short time she had been working at the school, she maintained that she was not mistaken in her own mind that the light in question was either not on or not working on the morning she fell into the uncovered drainage pit. She also recalled that when she returned to work several days after her injury the light in question was still not working. The plaintiff said that at the time she was injured she did not know that the covers of the drainage pit could come out of their locations. That evidence was not challenged in cross-examination.
Evidence of Mrs Coulthart – employed cleaner and plaintiff’s work supervisor
26. Mrs Coulthart was employed by Tempo as a cleaner at Toukley Primary School between April 2004 until December 2005. In January 2005 the plaintiff was assigned to work with her at the school. She stated that at the time the plaintiff was injured the school was undergoing some renovations and access to the administration block was partly closed off as it had been condemned.
27. Mrs Coulthart’s duties commenced at 4.45am when she accessed the temporary administration building in order to turn off the alarms. She recalled the plaintiff arriving for work at 5.00am. Mrs Coulthart described the existence of some external lights, some of which were not working. She described the area where the plaintiff was walking, and which was identified by other evidence to be a main thoroughfare within the school grounds. She described that area as having no external lights. She said that the plaintiff called out to her after she had fallen into the drainage pit. Mrs Coulthart then went and saw the open drain hole with the removed covering grate located beside it at the back of the toilet block as shown in the photographic exhibits.
28. Mrs Coulthart identified the light fitting shown in Exhibit “3” and stated that lighting was not working at the time of the plaintiff’s injury. She was in no doubt that at the time of the plaintiff’s injury those lights had never been activated, and had not been working for at least some months. She stated that this had been drawn to the attention of the deputy principal of the school and the general assistant employed at the school on a number of occasions from about the end of May 2004. She described being present at the school before the plaintiff’s injury when a conversation took place on the subject of the lighting and on the subject of vandalism. The relevant conversation was between a relieving deputy principal and another employed cleaner in the following terms:
Q. What was the response?"Q. What was said, do you know?
A. He just said that it's really dark there and that I was worried about - you know, with the vandalism and the problems that we were happy (sic for having), what's the chances of getting it fixed and he said he'd look into it.
A. He'd look into it."
29. Mrs Coulthart gave evidence of other conversations about vandalism and the lighting that took place before the plaintiff’s injury and in which attention was drawn to the state of the lighting:
"Q. Did anything change after that?
A. The GA had attempted on a number of occasions to get a few more lights to go but no. No, they never actually got fixed.Q. In that area?
A. Yep.Q. Was it only one complaint that was made to this individual?
A. I made a further complaint about four or five weeks later, that nothing had happened, they weren't fixed.Q. To whom did you make that complaint?
A. To Col, the deputy principal.Q. And in what terms and what was said, to the best of your ability?
A. I just said to him "Are we going to get anything done with those lights?" and he just said "Gee, that just reminds me." It was sort of like yeah, like he'd forgot.Q. You didn't make an entry in a book at all?
A. No, no.Q. This individual, what was his status in the school did you understand?
A. He was - he was a permanent teacher there but he was the relieving deputy principal at the time.Q. Did you then with the passage of time speak to anybody else in a position of authority?
A. Yes, then when he finished there was another teacher at the school, Murray, he then became the relieving deputy principal as well, took over the position and we mentioned it to him as well.Q. And were you present when that was done?Q. When you say we, could you just tell me--
A. Chris - Chris and I.
A. Yes."
30. Mrs Coulthart’s evidence was that despite such conversations nothing had been done to act upon the complaints concerning the lighting. She said that when Mr Andoni took over the position of deputy principal at the school in the last term of 2004 she also spoke to him about vandalism at the school and about the fact that the lights were not working. Her evidence in this regard was:
“Q. Who do you understand Mr Andoni to be?
A. He took over the deputy principal's position, it was at the end or the last term of 2004.Q. And between that time and February 2005, did you ever speak to him yourself?
A. Yes.Q. On how many occasions?
A. Quite a few, just on a regular basis whenever you could catch him in the playground or in a corridor, just wherever, just saying you know like "We have a lighting problem, we have a security problem here" and the school was at that stage in a terrible state with vandalism and it was very frightening.Q. And what was his response when you said "We have a lighting problem"?
A. He said "We'll get onto it."Q. On how many occasions do you believe you would have spoken to him in that manner from the time he took over until February 2005?
A. At least once - once a fortnight to once a month. Yeah, just depending on how - how much we could get hold of him, yeah.Q. Sitting here today, is there any doubt in your mind as to the conversations you had with Mr Andoni?
A. No, none whatsoever.Q. And in addition to the lighting problem, you've spoken about vandalism. Was there ever a problem with the grates--
A. Always.Q. --before February 2005?
A. Yes, yes.Q. You say always.
A. Always.Q. In April 2004 to February 2005, from your own knowledge, can you tell the court on how many occasions grates would have been interfered with by means of being removed?Q. What do you mean by that, madam?
A. It was a constant problem that the children would come into the school grounds and remove the grates. They'd take them down to use them for skateboard ramps and all that sort of stuff. It was just something they'd take them out and sit them beside them. They'd take them out and stack them on top of one another or they'd take them down and sit them in the playground in the children's grass and playground area.
A. I would say you'd have to say at least once a month. At least once a month.”
31. Mrs Coulthart described how, at some time not long after the plaintiff’s injury, a security representative of the Department of Education attended the school. Mrs Coulthart recalled being summoned by the principal to attend a meeting with the principal, the deputy principal and the teachers. At that meeting vandalism at the school was discussed and the suggestion was made to turn off the school lights at night to deter vandals. She stated that this suggestion was later implemented.
32. In cross-examination Mrs Coulthart stated that before the plaintiff’s injury, that is from around May or June 2004, she had told her own supervisor from her employer’s company of the problems with lighting and with vandalism at the Toukley Public School. She said she discussed with her supervisor the fact that all the lights, meaning the external lights at the school, were not working. She said she had raised these issues with her employer at least once if not twice before the plaintiff was injured. She stated that in response her employer took no action to deal with these hazards and gave no instructions as to how to deal with such hazards.
33. Mrs Coulthart agreed she had not made an entry in the general assistant’s book before the plaintiff’s injury concerning the removal of the drainage pit grate coverings by vandals. She agreed with the proposition that it was a highly hazardous activity to walk through the school grounds in darkness. She said that on several occasions before 24 February 2005 she had asked her employer, Tempo, for a torch but this had not been provided. In these circumstances she said that it was her own practice to open her mobile phone and to use it as a source of light so that she would not fall herself when she had to traverse the school grounds in darkness.
34. Mrs Coulthart stated that she used to speak to the principal Mr Andoni on various occasions about vandalism at the school in connection with clean up activity. Mrs Coulthart said that she had also spoken to the general assistant at the school, Mr Garland, about the effects of vandalism at the school and concerning the need to clean up the debris comprising smashed windows and doors.
35. Mrs Coulthart was unable to state whether the lighting in the area where the plaintiff fell was simply switched off or whether it was broken. She stated that when she saw the lights they appeared to be very dirty and dark and they looked old and disused. She could not say whether the power system to the building was inoperable or whether all that was needed was new light globes.
36. Mrs Coulthart emphatically denied the suggestion that she was mistaken in her evidence as to the state of the lighting in question. She denied the suggestion that those lights were in fact working at the time of the plaintiff’s injury.
37. Mrs Coulthart stated that after the plaintiff’s injury the lights were operated on a timing switch which was not accessible by her. Her evidence in this regard was:
“WITNESS: It was a - a timing switch, I believe, that operated but you must remember that while we were at the school at that time, the school was under refurbishment construction and the main building that housed the electrical board was partially condemned with the exception of one section where you would walk in to turn the alarms off and the small section down one end which was used by the Aboriginal art. So that building was virtually out of bounds other than those two ends, to us anyway, because it was condemned for white ants.”
38. Mrs Coulthart stated that subsequent to the plaintiff’s fall she had herself suffered a fall at the school in darkness. In response to this fall her employer provided cleaners at the school with small penlight torches but these proved to be too difficult to use because the cleaners were required to carry too much other equipment.
Evidence of Mr Garland – general maintenance assistant and groundsman at the school
39. Mr Derek Garland was the general assistant and groundsman at the school. He had been employed at the school since 1995. His duties included working on the school grounds, carrying out minor maintenance work and providing general assistance as and when this was required. He described the system by which cleaners at the school communicated tasks to him that required attention. This was by writing in a book the details of tasks requiring attention. He said he could look at this book daily.
40. Mr Garland confirmed that there were problems with the drainage pit covers in the grounds in that these were at times removed by trespassers or vandals. He said it was his job to replace these drainage pit covers back into their correct position on such occasions. In answer to a question as to his knowledge of this problem occurring well before the plaintiff's injury, he agreed he was aware that this had occurred on about four or five occasions.
41. Mr Garland could not recall whether the lights outside the toilet block were working on the morning the plaintiff was injured. He could not recall Mrs Coulthart making general complaints to him about the lights in that area before the plaintiff was injured. He explained that the external lights were switched on and off by means of a sensor so that the lights came on when it was dark and went off when it became daylight. He also identified the existence of a master switch for the lights. He said this was located in a classroom block near where the plaintiff was injured. The settings on that master switch enabled the lights to be switched to either automatic or manual on or off operation. Mr Garland identified the possibility that the lights may not have worked for some time before the plaintiff’s injury. He had no direct knowledge as to whether the lights had been coming on in the months before February 2005. He said he had no reason to attend the school after dark or before sunrise. His own working hours were between 7.00am and 3.30pm on weekdays. He said he checked the working of the lights by switching them on and off during the day on a haphazard basis. He said when this occurred the switch to the manual setting over-rode the sensors for the lights.
42. It was Mr Garland's job to replace light globes from time to time when they were out but the job of maintaining the lights and checking them to ascertain correct functioning was a task assigned to an independent maintenance contractor whose function was to attend the school on an annual basis. This was to inspect and to change all the lights that were not working. Mr Garland was unable to specifically indicate the time of the year when this maintenance activity occurred. Mr Garland conceded that his memory was poor as to whether Mrs Coulthart may or may not have made complaints to him. I infer from the context of his evidence that he was speaking about the state of operation of the external lights within the school grounds.
43. Mr Garland recalled that someone from the Department of Education had attended the school and had advised that the way to deal with vandalism at the school was to leave the lights off at night. He could not recall when that decision was made in relation to the timing of the plaintiff's injury in February 2005. The uncertainty of the timing of his recollection on the subject was summed up in the following extract from his evidence:
“Q. After that event of the advice being given, were the lights then turned off at night?
A. I don't think it ever happened. I'm not sure. I can't - I can't remember because the lights had to be on at night or at least in the morning for when the cleaners came in.Q. Yes, because if the lights weren't working, obviously they would be exposed to serious risk of falling?Q. And that was, as you understood it, to ensure the safety of the cleaners?
A. So they could see where they were walking.
A. Yes.”
44. It appears from the foregoing answers that Mr Garland was unaware as to whether or not the playground lighting was in fact switched on in the mornings at the time when the plaintiff attended in darkness on the day the plaintiff was injured.
Evidence of Mr Andoni – deputy school principal
45. Mr Alan Andoni is the deputy principal of the Toukley Public School. He has held that position since October 2004. He stated that between October 2004 and 24 February 2005 nobody had reported to him that the light fittings on the eaves of the toilet block were not working. Similarly, he also stated that in that period nobody had reported to him that the covering grate of the drainage pit in Exhibit “C” had been removed. He said in the ordinary course, information concerning events such as the removal of the covering grates or the operation of the light fittings would not come to his attention as a matter of course. Mr Andoni also said that he would not know about day-to-day repairs carried out by the groundsman Mr Garland, however he said that if the repairs were major, they would have been carried out by contractors.
46. In contrast to Mrs Coulthart’s evidence Mr Andoni said that in the period between October 2004 and 24 February 2005 he didn’t receive any complaints that the lights in the area where the plaintiff fell were not functioning.
47. Mr Andoni described the toilet block as P block and identified another area as the RW toilet block situated about “6 metres, 5 metres from that area”. From this evidence and from its context I infer “that area” to be a reference to the area where the plaintiff had fallen. In any event the distance of some 5 to 6 metres does not seem to be significant. Mr Andoni described the area where the plaintiff fell as being the main thoroughfare from the street to the school hall. Mr Andoni also acknowledged that at some time which was not identified in the evidence, he had been requested by the cleaners to leave the lights on. He said that after he was asked to do so he complied with that request, having previously been in the habit of turning the lights off manually as those lights were not on the automatic switch that affected the lighting fro the rest of the school. Presumably this was in order to save electricity costs.
48. Mr Andoni described the presence of about eight removable covering grates in the school grounds. He acknowledged that in the period October 2004 to February 2005 vandalism had occurred regularly within the school grounds. He described the targets of the vandals as being the breaking of windows and the removal of rails from garden fences for use in connection with skateboarding activities. He said that before 24 February 2005 he had never been informed, and did not know, that it was the practice of vandals to remove the covering grates of drainage pits of the kind shown in Exhibit “C”. He acknowledged that if teachers or the groundsman had seen that such covering grates had been removed and needed to be replaced into position, he expected that they would have simply done so. He stated that the groundsman had overall responsibility for such matters.
49. Mr Andoni acknowledged that in the period leading up to the plaintiff's injury the school had a problem with vandalism on a very regular basis. He thought that this was more to do with the smashing of windows. He said no one had reported to him that there was a recurring problem concerning the removal of the covering grates of the drainage pits. He said that if this problem had occurred more than once he would have expected to have been informed about it. He made a distinction between the grates covering the drainage pits and a grille that was fitted to cover a disused sullage pit, the former being removable and the latter being welded down into position.
50. He denied having conversations with Mrs Coulthart regarding lighting problems within the school but he acknowledged having general conversations with her regarding vandalism at the school. He later qualified that evidence by stating that he had no memory of discussions concerning the lighting. He acknowledged that he had periodic conversations with cleaning supervisors concerning cleaning issues but said that the subject of lighting of the premises was not discussed.
51. About 3 years after the plaintiff’s fall Mr Andoni was interviewed by an investigator on behalf of the defendant. Subsequently, on 11 November 2008, on the first day of the trial, he signed a statement that was admitted into evidence as Exhibit “L”. Some of the content of that statement was expressed to have been based on his own knowledge. Other parts of the statement were expressed to have been based on assumptions as to what he understood would have been the actions of another principal and other deputy principals. These persons were not called to give evidence on the matters which Mr Andoni had assumed in his statement.
Groundsman’s maintenance book
52. Exhibit “9” comprises photocopies of selected portions of the school maintenance book which provided a means of recording the date and job description of maintenance problems to be communicated to the groundsman for his remedial attention. The setting out of the book also provided for a notation of the contact name of the person reporting the problem. A column in the book was also reserved for the insertion of a date or initials to signify that a designated task had been completed. The exhibit comprises a very poor photocopy of the original and it contains many entries that are barely legible.
53. Between 24 March 2003 and 8 February 2005 the book contains some 20 discernable entries which concern various lighting and light switch problems. Of those entries, those more contemporaneous to the plaintiff’s injury were dated 31 January 2005, 2 February 2005 and 8 February 2005. These concerned problems with fluorescent tubes. There were two lighting problems reported by the plaintiff on 8 February 2005 concerning a flickering tube at H 13 and lights not working properly in the G 18 area. These areas were not identified in the evidence. Significantly, the entry in the maintenance book for 25 February 2005, which was the day after the plaintiff’s injury, stated: "2 out of 4 lights not working in class room. Can we get new fluoro bulbs?". There were no discernable entries concerning the external lighting.
Issue 1 – External lighting of the school grounds
54. Analysis of the evidence on the external lighting issue reveals a division of views into three groups. The position of the first group, comprising the plaintiff and Mrs Coulthart, was that the area where the plaintiff fell was not externally lit on the morning when the plaintiff was injured. Another position was that of Mr Garland. He did not know whether the external lights were working on that day. Mr Garland also conceded that the lights may not have been working for some time before the plaintiff’s injury. The third position concerning the external lighting issue was that of Mr Andoni who stated that nobody had reported to him that the lights were not working before the plaintiff was injured. Further, Mr Andoni denied that in the period October 2004 and February 2005 he had received any complaints from Mrs Coulthart to the effect that the external lighting was not functioning. There was some doubt in the evidence of Mr Andoni as to whether he had in mind the same area as the other witnesses. In his statement Mr Andoni said:
11. I have received complaints regarding the RW toilet block. We addressed this problem immediately. The toilet lights are permanently on now.”“10. I have not ever received any complaints from cleaners regarding the amount of lighting at and around the location of Mrs Schneider’s fall. This is not in the area where Mrs Schneider allegedly fell.
55. Having considered the whole of the evidence on the issues concerning the state of the external lighting in the school grounds on the morning of the plaintiff’s injury I prefer the evidence of the plaintiff and Mrs Coulthart to that of Mr Andoni and I find that the external lights were not operating to illuminate the area where the plaintiff fell. I have come to this view for a number of reasons.
56. First, Mr Andoni’s evidence on the lighting issue is based on an assumption that was not the subject of evidence. It is apparent from the wording of Exhibit "L’ that Mr Andoni has assumed that the previous principal, Ms Ingram, whom he had relieved for a time during her illness, and the previous deputy principal, Mr Murray, "would have" informed him if there had been a history of complaints from cleaners at the school concerning the adequacy of the lighting on the site. I consider this evidence to have a flawed foundation rendering it to be of no probative value because the persons who could have validated the matters implicitly assumed by Mr Andoni were not called to give evidence along the lines of the matters that he had assumed.
57. Secondly, I consider that Mrs Coulthart’s evidence on the issue of there having been previous complaints over the state of the lighting was inherently credible and not glaringly improbable. It was entirely reasonable that as the cleaning supervisor, she would have had occasion and justification for complaining to the school authorities about the state of the lighting as a safety issue and it was also reasonable that she would also be present when another cleaner voiced his similar complaints to the school concerning the lighting problems as she had described in her evidence.
58. Thirdly, I consider Mr Andoni has confused the lighting issue by reference to complaints about lighting in the vicinity of the RW block within the grounds as distinct from the P block. I consider this to be so because he was not present when the plaintiff fell and in the absence of evidence of him later being shown precisely where the plaintiff had fallen, it has not been demonstrated that he was in a position to authoritatively deny the factual assertion concerning the location where the plaintiff had sustained her injury. In any event I consider that the difference in location between P block and the RW block, described by Mr Andoni to be some 5 or 6 metres, to be of only limited significance given the surrounding conditions of darkness. I did not understand Mr Andoni’s evidence to indicate that the lighting at one block illuminated the area of the other.
59. Fourthly, I consider that Mr Andoni has confused the connection between the history of acknowledged complaints from the cleaners concerning lighting as was made by Mrs Coulthart and his understanding of the place where the plaintiff fell. I consider that confusion has influenced and rendered incorrect his understanding of the location of the where the plaintiff fell. Accordingly, I prefer Mrs Coulthart’s evidence about the complaints she made to the school authorities, including to Mr Andoni and to his predecessors over the absent lighting in the area where the plaintiff fell.
60. Fifthly, although in paragraph 21 of Exhibit "L" Mr Andoni has stated that it had never been the policy of the school to turn off the lights for the toilet blocks in the evening, particularly since the premises were let out to other organisations, including for dancing lessons and, as his evidence also explained, for karate lessons, I consider that his understanding of the lighting policy was not borne out by his oral evidence. In his oral evidence he explained that he had previously made a habit of turning the lights off manually and had ceased doing so when asked by the cleaners not to do so. In these circumstances I am inclined to accept the evidence of the plaintiff and Mrs Coulthart when they say the lights were not on in the area in question in preference to Mr Andoni’s evidence on his understanding of the state of the lighting, such evidence being based on his understanding of the policy rather than the fact of whether or not the lights were working at the time of the plaintiff’s injury. In the context of his evidence I interpret Mr Andoni’s reference to this lighting as the external lighting. In view of Mr Andoni’s evidence concerning the past practice of switching off the lights I consider it more probable than not that Mr Andoni had in fact switched the external lights off at some time before the plaintiff’s injury, as was explained by his evidence on this topic. In my view this explains why the premises were in darkness on the morning of the plaintiff’s injury.
61. Sixthly, I am reinforced in my views as to the absence of lighting on the morning of the plaintiff's injury because Mr Garland confirmed the possibility this may have been the case when he agreed that the lights may not have been working for some time before the plaintiff’s injury. This indicates that Mr Garland’s evidence was not contradictory of the evidence of the plaintiff and Mrs Coulthart when they said the lights were not switched on when the plaintiff fell. I do not regard Mr Garland's evidence concerning the haphazard nature of the process of testing of the lights to be contradictory of this proposition either because the fact of his tests and the method of his testing would not have been necessarily inconsistent with Mr Andoni’s evidence of switching off the lights. The opportunity for Mr Andoni to switch off the lights would have arisen at any time including in the evenings after the school had been used for other activities particularly since Mr Andoni said in his evidence that he had been at the school on such occasions.
62. Seventhly, I do not regard Mr Andoni’s evidence that he did not recall complaints about the lighting not functioning in the period between October 2004 to February 2005 as being definitive of the issue because, as he confirmed, there were some 82 lights in the school and no records were tendered or evidence called as to the maintenance history of these lights. Without such evidence, in my view it is unlikely that his evidence on the lighting issue was likely to be accurate, particularly since he was only asked about these matters by an investigator some three years after the incident and his statement on the matter, which I consider to be the basis of his evidence, was only made on the first day of the trial.
63. Eighthly, I do not consider that because the groundsman's book makes no mention of complaints about lighting, this means that the evidence of Mrs Coulthart and the plaintiff should be discounted or not accepted on the lighting issue. The evidence did not suggest the groundsman’s book to be a definitive log or record, it was simply a record.
64. I therefore find that shortly after 5.15am on 24 February 2005 when the plaintiff fell into the uncovered opening of a drainage pit in the school playground, she did so because the external lights in the area of the drainage pit were not operational. This meant that the plaintiff was required to walk in that area in darkness, which in turn led her to fall and sustain injury.
Issue 2 – Removal of covering grates of drainage pits
65. Analysis of the issue concerning the history of removal of the covering grates of the drainage pits by vandals does not reveal the same degree of division of views within the evidence as does the lighting issue. The area of dispute concerning the grate was not whether the covering grate had been removed in the area where the plaintiff had fallen, but whether the school authorities knew that similar episodes of removal of covering grates had occurred in the past. The plaintiff’s evidence on this issue was non-contributory as there was no real issue that the particular grate had been removed, thus permitting her to fall. The evidence in common to Mrs Coulthart, Mr Garland and Mr Andoni was that there had been a significant history of vandal activity at the school and that this had been a recurring problem for some time. The area of difference in the evidence was one of detail. On the specific issue of vandalism involving the history of the removal of drainage pit grate covers, the difference in the evidence was polarised between the evidence of Mr Andoni on the one hand and Mrs Coulthart and Mr Garland on the other.
66. Both Mrs Coulthart and Mr Garland stated that there had been intermittent past vandal activity at the school and that this had involved removal of the covering grates of the drainage pits. Mrs Coulthart described this practice as a continuing problem where vandals would remove the grates and stack them for use in connection with skateboard activity. She stated that this had occurred approximately monthly. Mr Garland was in general agreement with this evidence in the sense that he agreed there were problems with vandals removing the drainage pit covers although he said that this had occurred on about 4 or 5 occasions before the plaintiff’s injury. In contrast Mr Andoni’s position concerning the grates was that although he agreed there was a problem with recurring vandalism on a regular basis, no one had reported to him that there was a problem with the grates being removed. Earlier, in his statement he said:
“… we had not experienced any drain covers being removed by vandals .”
67. Having considered the whole of the evidence on the issue of the history of vandalism concerning the removal of covering grates of the drainage pits, I prefer the evidence of Mrs Coulthart and Mr Garland to that of Mr Andoni. I have come to this view for a number of reasons.
68. First, I consider that Mr Andoni’s own awareness of the activities of vandals at the school concerning the removal of the drainage pit covers was necessarily limited because, as he said, it was the responsibility of the groundsman to deal with such matters, meaning that such matters would not normally come to his attention. I consider this to be the reason why at paragraph 7 of Exhibit "L" Mr Andoni stated that the school had not experienced any drain covers being removed by vandals. In my view Mr Andoni most probably gave that evidence because when such incidents came to the notice of the groundsman and the teachers they were likely to have been considered to be relatively minor matters and were probably given remedial attention on an as need basis by the groundsman responsible or by teachers, without the need to trouble Mr Andoni or to require the engagement of outside contractors to effect repairs or to incur expense that required the approval of Mr Andoni.
69. Secondly, I infer from the stated weekday work starting times of the cleaners, namely at 5.00am, and the starting time for the groundsman, namely at 7.00am, that they would most probably have commenced their duties well before Mr Andoni would have arrived at the school and therefore these persons were most probably in a better position than Mr Andoni to have personal knowledge of the fact of, and the incidence of, the disruptive activities of vandals in the school grounds.
70. Thirdly, I consider that Mrs Coulthart was in a better position than Mr Andoni, and for that matter Mr Garland, to have an awareness of the fact of, and the incidence of vandals removing the covers of drainage pits in the school grounds. I consider this to be so because she and her colleagues whom she supervised were more immediately and more directly affected by those activities than Mr Andoni. As the cleaning supervisor, Mrs Coulthart also had an interest in knowing these matters and ensuring that they were appropriately dealt with. It is for this reason that I consider that Mrs Coulthart was able to more authoritatively describe a greater frequency of occurrence of such incidents than was the impression conveyed by Mr Garland in his evidence. That said, in substance, I consider that there was no real issue between the evidence of Mrs Coulthart and Mr Garland as to whether or not there was a relevant history of removal of the covering grates of drainage pits by vandals.
71. Fourthly, the description given by Mr Garland of the practice of skateboarders removing and stacking the grates in order to use them as an adjunct to their skateboarding activities seems to me to be more plausible than Mr Andoni’s description of his understanding of the practice of skateboarders removing fence railings for use in those activities.
356. To this sum I would make an additional allowance of $5,000 to cover the cost of installing a ramp and handrails at the place where the plaintiff will live, as is suggested by Ms Davidson. I do not propose to discount this additional allowance as I expected that the plaintiff will move back into her own premises within the a relatively short period after receiving her lump sum compensation or if not, I consider that as an alternative, it is it very likely that she would remain living at her parents home. In either case she will need to have these items installed for reasons of safety as suggested by Ms Davidson.
357. I therefore assess the plaintiff’s damages for future treatment and allied expenses in the amount of $75,000.
Past out-of-pocket expenses
358. The parties are agreed that out-of-pocket expenses comprising some $39,499 have been paid by the workers’ compensation insurer, Allianz and the sum of $2477 has been paid by Medicare. The total of these two amounts is $41,976. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the amount of $41,976.
Summary of damages assessment
359. My assessment of the plaintiff’s damages is summarised as follows:
(a) Non-economic loss (b) Past loss of earnings (c) Fox -v- Wood (d) Future loss of earning capacity (e) Past loss of superannuation benefits (f) Future loss superannuation benefits (g) Past domestic care services (h) Future domestic care services (i) Future treatment (j) Past out-of-pocket expenses Total
E. DISPOSITION AND ORDERS
Disposition - S 151Z(2) calculus
360. I have found that the plaintiff has succeeded on the issue of whether the defendant was in breach of its duty of care it owed to the plaintiff and was therefore negligent. I have found that such negligence was the cause of the plaintiff’s injury. I have found that there that there was no contributory negligence on the part of the plaintiff. I have assessed the plaintiff’s damages in the sum of $1,204,371.
361. My assessment of the culpability of the plaintiff’s employer, if sued, is 35 per cent. Applying the effect of s 151Z(2) of the Act, the plaintiff’s verdict of $1,204,371 must be reduced by that percentage to the amount of $782,841 which is an amount in excess of the ordinary jurisdiction of the Court. In the absence of the filing of a memorandum of consent to the unlimited jurisdiction of the court pursuant to s 51(2) of the District Court Act 1973, any judgment in favour of the plaintiff must be limited to the amount of $750,000.
Orders
362. I make the following orders:-
(a) Verdict for the plaintiff;
(b) Damages are assessed in the sum of $1,204,371;
(c) After applying a discount of 35 per cent to reflect the findings made pursuant to s 151Z(2) of the Workers’ Compensation Act 1987 I adjust the plaintiff’s verdict to the sum of $782,841;
(d) I direct the entry of judgment for the plaintiff in the amount of $750,000;
(e) The defendant is to pay the plaintiff’s costs;
(f) The exhibits may be returned;
(g) Liberty to apply on 7 days notice if further orders are required, including any application by the plaintiff to have the amount of the judgment varied to an amount beyond $750,000, pursuant to s 51(2)(b) of the District Court Act 1973 by reason of s 51(4) of that Act.
TABLE 1
PERIOD 1 – 24.02.2005 to 20.11.2005
PERIOD WEEKS WEEKLY
s 15(4)
RATEHOURLY
s 15(4)
RATEHOURS PER WEEK1. 24.02.2005 to 20.05.2005 12.14 $836.10 $20.90 2. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 3. 20.08.2005 to 20.11.2005 12.85 $863.80 $21.59
TABLE 2
PERIOD 2 – 21.11.2005 to 20.12.2005
PERIOD WEEKS WEEKLY
s 15(4)
RATEHOURLY
s 15(4)
RATEHOURS PER WEEK1. 21.11.2005 to 20.12.2006 4.14 $867.00 $21.67
TABLE 3
PERIOD 3 – 2112.2005 to 27.12.2006
PERIOD WEEKS WEEKLY
s 15(4)
RATEHOURLY
s 15(4)
RATEHOURS PER WEEK1. 21.12.2005 to 17.02.2006 8.28 $867.00 $21.67 2. 18.02.2006 to 15.03.2006 3.57 $856.30 $21.40 3. 16.03.2006 to 19.05.2006 9.14 $856.30 $21.40 4. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 5. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 6. 18.11.2006 to 27.12.2006 5.57 $903.40 $22.58
TABLE 4
PERIOD 4 – 28.12.2006 to 01.06.2007
PERIOD WEEKS WEEKLY
s 15(4)
RATEHOURLY
s 15(4)
RATEHOURS PER WEEK1. 28.12.2006 to 17.02.2007 7.28 $903.40 $22.58 2. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 3. 19.05.2007 to 01.06.2007 1.85 $916.20 $22.90
TABLE 5
PERIOD 5 – 02.06.2007 to 11.11.2008
PERIOD WEEKS WEEKLY
s 15(4)
RATEHOURLY
s 15(4)
RATEHOURS PER WEEK1. 02.06.2007 to 17.08.2007 10.85 $916.20 $22.90 2. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 3. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 4. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 5. 17.05.2008 to 11.11.2008 25.42 $904.70 $22.61
0
26
3