Schuller v S J Webb Nominees P/L
[2014] SADC 178
•30 October 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
SCHULLER v S J WEBB NOMINEES P/L
[2014] SADC 178
Judgment of His Honour Judge Stretton
30 October 2014
TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE - DUTY OF CARE - SPECIAL RELATIONSHIPS AND DUTIES - OCCUPIERS
TORTS - NEGLIGENCE - DANGEROUS PREMISES - INJURIES TO PERSONS ENTERING PREMISES - LIABILITY GENERALLY
DAMAGES - GENERAL PRINCIPLES - GENERAL AND SPECIAL DAMAGES
The plaintiff attended the Port Broughton Sunnyside Hotel Motel on Friday 17 April 2009. In the course of the evening she drank, socialised and listened to the band which would play in the saloon bar on Friday nights between about 9pm and 12.30am. Near the end of the evening the plaintiff got up on a chair to dance to the music, slipped, fell, and seriously injured her knee. She sued the hotel claiming they sold her too much alcohol and did not prevent her from dancing on the chair and injuring herself. There was a factual dispute in relation to the events of the evening, in particular how much the plaintiff had to drink, whether she was told not to dance on the chair, whether she was cut off from alcohol service, and what other actions the Hotel took in response to her conduct.
HELD:
1. The plaintiff got up on a chair three times. On the first occasion she was immediately told to get down and complied. On the second occasion she was told to get down, cut off alcohol service and given a ‘first and final warning’. On the third occasion bar staff repeatedly yelled to her to get down, which warning she ignored, continued dancing, then slipped and fell.
2. Since the decision in Cal No 14 P/L v Motor Accidents Board [2009] HCA 47, it is clear that in the absence of exceptional circumstances licensed premises owe no duty to protect customers from the consequences of the alcohol they choose to consume. There were no exceptional circumstances in this case.
3. The Hotel maintained and conducted its premises in a safe manner and condition.
4. The Hotel was not negligent and did not breach any duty it had to the plaintiff.
5. The plaintiff is entirely responsible for her own injuries.
6. The plaintiff’s claim is dismissed.
Civil Liability Act (1936) sections 36, 37, 52, 54; Liquor Licensing Act (1997) s 32; Office of the Liquor and Gambling Commissioner Code of Practice , referred to.
Cal No 14 P/L v Motor Accidents Board [2009] HCA 47, applied.
Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29, considered.
SCHULLER v S J WEBB NOMINEES P/L
[2014] SADC 178The plaintiff falls off a chair
At about 8.30pm on Friday 17 April 2009 the plaintiff Bianca Schuller finished working the evening shift at a Port Broughton café. She had arranged for her partner to care for her nine year old daughter Chloe so she could catch up with friends and hear the band at the nearby Port Broughton Sunnyside Hotel Motel.
The Plaintiff arrived at the hotel at around 9pm, met up with friends and enjoyed the evening socialising with them, drinking and dancing to the 2-person band. The band played in a smallish saloon bar area, in which the several small tables had been moved apart to create a small dance floor area. On one or two occasions in the course of the evening when the mood and the music of Cold Chisel took her, she hopped up onto a chair to dance.
As the evening drew to an end, shortly before the band were due to stop at 12.30, the plaintiff hopped up onto a chair to dance a third time. In the course of dancing on the chair she fell to the carpeted floor, unfortunately striking her knee immediately causing very severe pain.
Fortunately the Port Broughton hospital was open opposite the hotel. The plaintiff was taken there by wheelchair, direct from the hotel. It was apparent that the plaintiff’s knee was seriously injured, and she was soon transferred by ambulance to the Royal Adelaide Hospital.
The subsequent legal action
The plaintiff claims that her fall and her injuries were the fault of the hotel, essentially because they sold her too much alcohol and did not prevent her from dancing on the chair.
She claims general damages for her injury, damages for past and future economic loss, special damages, future medical expenses, and the value of gratuitous services provided to her by members of her family.
Conclusions and the law
For the reasons that follow, the court has concluded that the plaintiff’s fall and injuries were entirely her own fault, and that the hotel is therefore not responsible for them and not liable to pay any damages.
Further, it must be understood that after some uncertainty in recent years,[1] a recent High Court case established that unless there are exceptional circumstances, there is no general duty of care at common law to customers to monitor and minimise the service of alcohol or to protect customers from the consequences of the alcohol they choose to consume.[2] In simple terms, hotels are not legally liable to compensate people who get drunk and hurt themselves on hotel premises.
[1] Cole v South Tweed Heads Rugby League Football Club [2004] HCA 29, where the High Court disagreed 2-2 on the issue.
[2] Cal No 14 P/L v Motor Accidents Board [2009] HCA 47 at [52] and [64].
Hotels still have important legal obligations concerning the responsible service of alcohol and to conduct and maintain their premises in a safe way, however they are not liable to pay damages to a person who drinks too much and who, as a consequence of their own actions while drunk, injures them self.[3]
[3] Cal No 14 P/L v Motor Accidents Board [2009] HCA 47 at [52] and [64].
Therefore, unless there are exceptional circumstances, or the hotel fails to conduct and maintain its premises in a safe manner and condition and for that reason the plaintiff is injured, a plaintiff who injures themselves by behaving stupidly while drunk cannot recover damages.
In this case, the plaintiff injured herself by dancing on a chair while drunk, and has not established any exceptional circumstances or that the hotel failed to maintain and conduct its premises in a safe manner and condition. Hence her claim cannot succeed, and is dismissed.
Detailed reasons for these conclusions follow.
The plaintiff’s claim
The plaintiff claims that in the course of the evening at the Port Broughton Sunnyside Hotel Motel, she became obviously intoxicated, and over the course of the evening she and others climbed on tables and chairs to dance. She claims that despite the fact she was obviously intoxicated, the bar staff continued to serve her alcohol throughout the whole evening.[4]
[4] Statement of Claim paras 3-8.
She says that the hotel was responsible for her fall and consequent injury in a number of ways. She claims that the hotel, in breach of its duty, sold alcohol to obviously intoxicated persons including herself, didn’t deal with incidents of intoxication and disorderly or offensive behaviour, failed to ensure that the saloon area including tables, chairs and dance space was safe, failed to respond to patrons’ earlier complaints that nearby chairs and tables posed a hazard to patrons, and that they did pose a hazard, failed to stop patrons dancing on furniture posing a hazard, failed to ensure early intervention on occasions of intoxication or offensive behaviour, or ensure order and safety, and failed to intervene to prevent injury to her.[5]
[5] Statement of Claim para 9. This is only a truncated summary. I have had regard to the full pled and argued parameters of the claim.
Because of these actions, the plaintiff argues the defendant was negligent, and also breached its obligations and statutory duties to the plaintiff under the Civil Liability Act (1936) the Liquor Licensing Act (1997) and the Office of the Liquor and Gambling Commissioner’s Code of Practice, and thereby caused the plaintiff injury, loss and damage.[6]
[6] Statement of Claim paras 10-11. I have had close regard to the duties and obligations imposed by the cited legislation, the detailed claimed breaches pled by the plaintiff, and all the arguments and submissions of counsel thereto, however for brevity do not set them out in this judgment.
Factual issues in the case
There was no dispute that the plaintiff attended the defendant’s hotel on the evening in question arriving at about 9pm, or that she drank and socialised throughout the course of the evening, nor that she danced on furniture on three occasions, and on the third occasion fell and seriously injured her leg.
There was however significant dispute about a number of other issues. The most significant were as follows.
The plaintiff claimed she was served numerous spirit based drinks and was plainly drunk, but that the hotel continued to serve her alcohol without restriction throughout the evening, and that she was never told to get off the furniture or not dance on it. She said the hotel did nothing to warn her, dissuade her or prevent her from dancing on the furniture.
The defendant claimed that its staff only served the plaintiff three beers in the course of the evening, that on the first occasion she got onto a chair she was immediately told to get down which she did and that on the second occasion she got on a chair she was again told to get down, was cut off alcohol service and given a ‘first and final warning’ meaning that if she did it again she would be required to leave the premises. On the third occasion the plaintiff got up on a chair, the defendant says the plaintiff was immediately told to get down and was told she was to leave the hotel, however the plaintiff ignored what she was told, continued dancing, then fell and injured herself.
To resolve these issues it is necessary to briefly summarise the evidence.
Evidence concerning the facts in issue[7]
[7] For brevity and clarity, only a brief overview is given in the body of this judgement. The court has however had regard to all the evidence, and all counsel’s submissions relating to it.
The plaintiff gave evidence to the effect earlier described.
By way of background, she acknowledged that due to an existing back injury that caused her significant ongoing pain, at the time of the accident in question she was on medication. She was taking 20mg of OxyContin twice a day. OxyContin is a strong morphine based slow release pain killing drug.[8]
[8] See the evidence of Dr D’Onise, occupational physician at T353-354.
The plaintiff gave evidence that after her shift she walked the 300 metres straight from the café to the hotel, where she initially met her two friends Rachel Hobbes and Karen Coombes. Matthew Hobbes another friend was also there, as were others she knew.
The plaintiff said she immediately purchased a scotch and soda in a schooner glass, and started drinking. She said she consumed at least 3 drinks an hour, if anything drinking a bit faster than usual to catch up with others who she perceived as already being ‘merry’. She said that she also bought two named ‘shooters’ of spirits to help her catch up with the others, but apart from the shooters she continued to drink scotch and sodas all night, in total consuming maybe about 10 drinks.
She said she spent some of the time in the saloon bar when the band was playing, and being a smoker would also spend time out in the beer garden where one was allowed to smoke. There was no bar in the beer garden, so patrons would need to come inside from the beer garden to purchase drinks.
The plaintiff said that during the course of the evening she recalled getting up on a chair in the saloon bar to dance at least once prior to the occasion when she fell and injured herself. She said she did not recall anyone telling her to get down, nor anyone telling her she would no longer be served, and she did not recall ever being refused service that evening. Indeed she said that immediately prior to her fall she had a scotch and soda in her hand, placing it on a table to enable herself to get up on the chair to dance. She said she did not hear anyone tell her to get down on that occasion either, and she danced for about the duration of a song, so for around 3 minutes, whereupon she then lost her footing and fell to the ground injuring her knee.
In cross examination it was put to her, but she denied, that she had offered anyone money, a car, or any other inducement to give evidence in the case.
The plaintiff did not call either Rachel Hobbes, Matthew Hobbes or Karen Coombes to give evidence. She said that Rachael was still a friend of hers, living in Cairns, but that she had not asked Rachel where her brother Matthew currently was because she didn’t really get on with him anymore.[9]
[9] T193-194.
The plaintiff called Kenneth Higginbottom. Mr Higginbottom is a Port Broughton local who liked to attend the hotel on Friday nights to listen to the music. He does not drink alcohol. He is an acquaintance of the plaintiff. He sat at the bar in the saloon where the band played, and watched the band from there. He said he probably witnessed the plaintiff receiving about four drinks in the course of the evening, but said in evidence that he didn’t see what type of drink it was as he was facing the band. He said he saw her looking slow and tired so thought she was under the influence of alcohol. He said that he saw the plaintiff and Matthew Hobbes dance on a table in the course of the evening, which tilted, so they jumped off. He said he’d seen Mr Hobbes dancing on furniture on previous occasions, but never removed from the hotel for doing so. He said he saw the plaintiff come into the saloon bar around midnight and climb on to a chair, falling off about two minutes later.
In cross examination Mr Higginbottom agreed that when the plaintiff earlier got up onto a table she was told by bar staff to get down, and when she later got up onto the chair he recalled both the bar staff yelling at the plaintiff to get off the chair, with the plaintiff seeming to ignore or not hear them.
Somewhat worryingly, Mr Higginbottom said that there was an occasion when he bumped into the plaintiff at the Crystal Brook pub and she offered him money or a car to give evidence in the case.[10]
[10] T426.
In cross examination Mr Higginbottom agreed that in 2010 he had given both a handwritten statement and eventually a typed statement about the events, which would have been true and correct. Both those statements were tendered pursuant to section 34C of the Evidence Act.
Mr Higginbottom said in his handwritten statement that he saw the plaintiff wobbly on her feet in the course of the evening, then saw the barmen ‘talking to her in a frank manner’, and that at some stage they stopped serving her. He said he saw her climb on a chair and try to dance but ‘she was incohearant (sic) as the barmen were shouting to her to get down. But within less than a minute she lost her balance and toppled forward onto the carpeted floor’.
Mr Higginbottom said in his typed statement that he first saw the plaintiff at about 9.30 at which time she seemed happy and she told him she was ‘half pissed’. She then purchased a beer and walked out to the smoking area. He saw her periodically return to buy a drink or dance. He said she appeared wobbly at times but was not staggering or falling over. He went on to say that a little later he saw her pull out a chair and stand on it, whereupon barman Peter yelled at her and quickly helped her off the chair. Later in the evening he recalled barman “Simmo” refuse to serve her at the bar, at which the plaintiff walked off with an irritated expression on her face. He said that later in the evening nearer closing time he saw her again get up on a chair and start dancing, although one of the girls nearby was telling her to get down. He said that within seconds she fell forward onto the ground and seriously injured herself. He described the events of a few months later at Crystal Brook whereby he said the plaintiff offered him money then a car if he would testify for her in court, which he refused.
The plaintiff called Sonia Anesbury to give evidence. Ms Anesbury is also a Port Broughton local. She knew the plaintiff well and was at the hotel on the evening in question, arriving at about 9.30. She said that she was in the beer garden smoking area, so didn’t see drinks being purchased or the plaintiff dancing or falling in the saloon bar. She said the plaintiff was drinking beer that night, but couldn’t say how many she had or whether others bought any drinks for her. She said the plaintiff was affected by alcohol.
The plaintiff called Simon Hall. He was the plaintiff’s partner at the time. He was not at the hotel that evening but said he had seen people dancing on furniture at the hotel on prior occasions and they were never told to get down or reprimanded. In cross examination he conceded that he had given up drinking, and so he had probably not been to the hotel in the two years prior to the fall when the defendant was running it, and the times he had seen people on furniture would likely have been prior to that.[11]
[11] T486-487.
The defendant called several witnesses on the issue of what happened on the night at the hotel.
The defendant called Natasha Harvey. Ms Harvey said that at the time of the accident she was a friend of the plaintiff. She had lived in Port Broughton three years previously and still used to go there on occasion to catch up with people. She was at the hotel on the night in question.
Ms Harvey said she thought the plaintiff got to the hotel earlier than 8.30. She said that the plaintiff drank beer that night. Ms Harvey agreed that on occasion she used to try and dance on the furniture, but was always told to get off when she did, and when told she would get off. Ms Harvey said that on one occasion during the evening she got up and danced on furniture when the plaintiff did, but they were both told to get down. Ms Harvey said that she recalled the plaintiff being told by bar staff that she was not going to be served any more drinks. Ms Harvey said that later in the evening when the bar staff weren’t looking she and the plaintiff again got up on the furniture to dance, and were told to get down, but that the plaintiff fell off.
Ms Harvey said that some months later she ran into the plaintiff at Bute whereupon the plaintiff asked her if anyone had come to see Ms Harvey about what had happened on the night, to which Ms Harvey replied ‘yeah I had to give a statement’. Ms Harvey said that the plaintiff said that at the end, she the plaintiff would ‘look after’ Ms Harvey. Ms Harvey said she didn’t know what the plaintiff meant by that.
In cross examination Ms Harvey repeated that the plaintiff was drinking beer that night. She said that she and the plaintiff and others had danced on furniture there on prior occasions. Ms Harvey admitted she had about 15 drinks herself that evening. She repeated that when she and the plaintiff got up to dance on the furniture just prior to the fall, her recollection was that both bar staff told them to get down.
The defendant called John Simpson, known to some as “Simmo”. Mr Simpson was an experienced operator of licensed premises, over the years having done a range of courses and having worked at several previous licensed premises. At the relevant time he was the holder of a liquor licensing badge and was duty manager of the hotel that night. He currently works as bar manager and duty manager of two licensed premises in Mount Gambier.
Mr Simpson described his responsibilities towards patrons, and the events of the evening in question. He said that patrons’ behaviour in that hotel was generally pretty good but that if anyone went a little too far, and got up on furniture, which they occasionally did, he would always catch it as quickly as he could to try and stop it, and make sure they hopped down. If necessary he could take further measures which might include excluding people or turning off the music.
Mr Simpson said that on the night of the accident he first saw the plaintiff at about 9.30 when he served her a schooner of beer. He said that she normally drank scotch and soda but that evening she drank beer. He said she seemed in a “Good bubbly mood. (the) Normal Bianca we knew and loved.”[12] He said she returned after about half an hour and he served her another schooner of beer, and he noticed a little bit of intoxication, a little more than he would have expected after two beers but that he didn’t take any action as after only two beers he did not think there was a problem or any need for action to be taken. He recalled her buying a third beer from the other barman Mr Sheldon some time later, probably within the hour.
[12] T645.
Mr Simpson said that in the course of the evening he saw the plaintiff and another woman he did not know, who was likely Ms Harvey, dancing on furniture, and as quickly as he could he ushered them down. He said that whilst others had danced on furniture on prior evenings, he could not recall the plaintiff having done it previously. He said that half to three quarters of an hour later he saw the plaintiff get up on a chair again, whereupon he yelled out from the bar to indicate to her that he was starting to get annoyed and walked straight out from behind the bar to move towards her but she got straight down before he arrived. Mr Simpson said he immediately took the plaintiff aside and told her that he was giving her a ‘first and final warning’, which was his way of saying that if she did it again she would be asked to leave.[13]
[13] T652.
At that point Mr Simpson decided that the plaintiff’s intoxication level was too high, so he decided she should not be served any further alcohol and instructed the only other barman Mr Sheldon that she was not to be served again. A little later he saw her approach Mr Sheldon for a further drink and be refused. He saw Mr Sheldon offer her water, which the plaintiff in turn refused. The plaintiff then walked back out to the beer garden.
Mr Simpson did not see the plaintiff get on furniture a third time, or fall, but saw the immediate aftermath as he returned to the saloon from the beer garden where he had been collecting glasses and notifying people of ‘last drinks’. He noticed her on the floor where she had fallen and together with others rendered assistance.
The final witness as to the events of the evening was the other barman Peter Sheldon. Mr Sheldon said he recalled serving the plaintiff a schooner of beer that night. He also recalled the plaintiff getting up on a chair a couple of times and being told to get down. He said he was told by ‘Simmo’ to cut off serving her alcohol if it happened a second time, which he did. He said that later she got up on the chair a third time and he approached her and tried to tell her that she was kicked out of the pub, but she appeared to ignore him, so he turned to ‘Simmo’ whereupon she fell.[14]
[14] Whilst Mr Sheldon only had a patchy memory of the events of the evening, the defendant sought to tender a statement he made in 2010 about the events. I ruled against that as Mr Sheldon is still employed by the defendant and accordingly has an ‘interest’ in the proceedings within the meaning of section 34C of the Evidence Act as interpreted in the relevant authorities. In those circumstances it is not admissible and I ruled against its tender.
Findings as to reliability and credibility of the witnesses
I have closely considered and assessed the evidence of the witnesses generally and particularly in the crucial areas of disagreement.
All the witnesses gave evidence in an initially straightforward way.
Putting the plaintiff aside momentarily, I assessed that all other witnesses in the trial were honest, and honestly attempted to recollect events the best they could. None had any apparent axe to grind with either the plaintiff or the hotel. There were some differences in detail, however I find that these were simply the result of the passage of time, different vantage points, different observations of the same event and of the evening in question, and exactly what one would expect in the case of honest people doing their best to tell the court about events that occurred over five years ago.
It is clear from the evidence of everyone but the plaintiff that she was drinking beer on the night in question, and purchased no more than three or four. It is also clear from the evidence of a number of witnesses that the plaintiff was asked by hotel staff to get off the furniture on each of the three occasions she got up on it. It is also clear from the evidence of the witnesses that after the second occasion she was cut off from alcohol, and refused service when she attempted to buy another alcoholic drink. It is also clear that when she got up a third time she was told in no uncertain terms to get down.
The plaintiff denies all this. She says that she drank only scotch and soda, plus two shooters, purchasing perhaps 10 or more drinks herself over the course of the evening. She says she was never refused service. She says no-one told her to get down off the furniture on any of the three occasions she got up to dance on a chair.
The vast preponderance of evidence establishes that while the plaintiff normally did drink scotch and soda, she definitely did not do so on the night she fell. I find that her evidence is quite inaccurate about that.
On the issue of whether she was refused service, the evidence is overwhelming that this occurred as well. Both bar staff say so, as did the plaintiff’s own witness Mr Higginbotton, and the plaintiff’s friend Ms Harvey who was called by the defence. I find that the plaintiff’s evidence is inaccurate about that.
On the issue of whether the hotel took action on the occasions when the plaintiff got up on the chair, the evidence is also consistent that they did. Both bar staff say so, as do both Mr Higginbottom and Ms Harvey. I find that the plaintiff’s evidence is also inaccurate about that.
Both Mr Higginbottom and Ms Harvey gave evidence which I find was to the effect that the plaintiff offered them a benefit to give evidence for her. In the case of Mr Higginbottom it was firstly money and then a car, and in the case of Ms Harvey it was to ‘look after her’. I scrutinised this evidence very carefully, and also the plaintiff’s categorical denials that anything like that happened. Neither witness had any reason to make such a thing up, indeed they have nothing whatsoever against her. The plaintiff has an obvious potential financial motive to get people to support her claim for damages from the defendant. After the most careful consideration, I find that the offers were indeed made, and that the plaintiff’s denials are not accurate. This ultimately in my view reflects adversely both on the plaintiff’s reliability and credibility.
The plaintiff’s inaccurate evidence about what she drank that evening does not particularly support her case. It doesn’t really matter what the type of drink was that she was being served, her case is rather that she continued to be served after she was drunk, and was given 10 rather than the three or four drinks the defendant says it served her.
In the final analysis, her evidence that she was drinking scotch and soda was in my view at the very least a reconstruction of what she thinks she might or may or must have had, however, it was so finely detailed and so confidently asserted when it was not actually the case, and could not represent an actual memory of events, it was on balance likely to be conscious embellishment or worse, and as such reflected on both her reliability and credibility.
I find that the plaintiff’s inaccurate evidence about not being asked to get down on all three occasions and about being cut off from alcohol and given a first and final warning in circumstances where her position supported her claim, also reflects on her reliability and credibility as a witness.
There were other aspects on the plaintiff’s evidence that were also unsatisfactory.
In the final analysis, having considered the totality of the evidence assisted by counsel’s helpful and comprehensive submissions, the court concludes that wherever the evidence of the plaintiff conflicts with the evidence of other witnesses in the case, the evidence of those other witnesses is more reliable and credible and is therefore to be preferred on the balance of probabilities.
Factual findings
Accordingly on the basis of the view the court has taken of the evidence and the reliability and credibility of witnesses, I make the following findings of fact on the balance of probabilities.
On the evening in question the plaintiff went to the Port Broughton Sunnyside Hotel Motel at around 9pm.
The saloon bar area featured live music, and after the meal service concluded in the hotel at around that time, a musical duo was set up in the corner of the moderately sized saloon bar. The room was a standard, carpeted room that one might find in innumerable hotels. It had four or five square moderately sized tables with accompanying chairs. These had been or were moved to the sides of the room to clear an open space in front of the band to allow patrons to dance if they wanted to.
After the plaintiff arrived at the hotel, over the course of the next hour or two she purchased three schooners of beer. She spent a lot of her time outside in the beer garden with friends where she could also smoke. It is not clear whether she was bought any alcohol by others during the course of the evening. The plaintiff was on OxyContin for her back pain. That is a strong painkiller, which has the potential to have affect together with alcohol. For some reason, possibly others buying her drinks, possibly due to her medication in combination with alcohol, or possibly for some other reason, the plaintiff became more intoxicated than the number of beers she herself purchased would alone have been responsible for.
Over the course of the evening the plaintiff would periodically come in from the beer garden to listen to the band playing in the saloon bar, and would also dance to the music. At some point she got up on a chair to dance, and was immediately told by Mr Simpson the bar manager to get down, which she did.
Half to three quarters of an hour later she did it again. Mr Simpson saw her and immediately yelled at her to get down, intending to convey that he was starting to be annoyed at her behaviour, and went to approach where she was, however the plaintiff immediately got down from the chair before he arrived.
Mr Simpson took her aside to give her a ‘first and final warning’ about her conduct, intending to convey thereby that if she did it again she would be excluded from the hotel. While doing that he noticed that she was more intoxicated than he thought was appropriate so he determined to cease service of alcohol to her. To ensure this occurred he informed Mr Sheldon, the only other barman there at that stage. That in fact occurred, as the plaintiff later tried to purchase a further drink but was refused service by Mr Sheldon. Mr Sheldon offered the plaintiff water, which she refused, and she walked back out to the beer garden.
Later in the evening, between 12.00 and 12.30, the plaintiff was again in the saloon bar area listening to the band, and decided to get up on a chair again. The moment she did the barman Mr Sheldon approached her and told her to get down, and told her she was kicked out of the pub, but she ignored him, continued to dance, and moments later fell, injuring herself.
Liability for the plaintiff’s fall
As discussed earlier, in layman’s terms the plaintiff can only succeed against the defendant if she can prove that she was injured because the hotel failed to maintain and conduct its premises in a safe manner and condition, or that there were exceptional circumstances relating to her inebriation such that the clear legal principle that a plaintiff who injures themselves by behaving stupidly while drunk cannot recover damages, should not apply.
I find that there was nothing unsafe about the hotel premises on the night in question. The saloon bar was a saloon bar like innumerable others. It was a perfectly safe room with the ordinary tables and chairs you might expect in such a room. The chairs and tables were in good condition. There was nothing unsafe about having a band in the corner and clearing away an area in front of the band to allow patrons to dance. The floor was flat, carpeted, and in apparently good condition. When the band was set up, the tables were moved to the sides of the room, were plainly visible, and posed no material danger to anyone. It was a scene you might see in any country pub on any given weekend, anywhere in Australia. It was perfectly safe.
The actions of the bar staff that evening were also reasonable, adequate, safe and not in breach of any applicable duties. The plaintiff was only served three or four drinks. When she got up on a chair she was immediately told to get down, and complied. When that inappropriate conduct of getting up on a chair was first repeated she was warned and also cut off from alcohol service. She ignored that warning and did it again, at which time she was told to get down and told she was excluded from the pub, but she ignored the warning and fell.
There was nothing unsafe about the way the hotel was conducted that evening by its staff.
The plaintiff was entirely responsible for her accident and her injuries. She did what she did despite repeated warnings from the hotel not to do so.
The plaintiff’s conduct was a direct result of her making a stupid decision to behave the way she did while inebriated, in what were objectively safe premises being run competently by the defendant. There were plainly no exceptional circumstances in this case, within the legal meaning of that phrase.[15]
[15] Cal No 14 P/L v Motor Accidents Board [2009] HCA 47.
Accordingly the plaintiff’s claim must be dismissed.
The defence of voluntary assumption of risk
Whilst because the plaintiff’s claim ought to be dismissed for the above reasons it is strictly unnecessary to consider this defence, I consider that the defendant’s defence that the plaintiff voluntarily assumed the risk she took when she got onto the chair to dance is also made out.
There was an obvious risk in the plaintiff doing what she did after drinking, which I find was obvious to her at the time and was made even more obvious to her on the night in question by the repeated warnings she received from Mr Simpson when she got up the first two times and also from Mr Sheldon when she got up onto the chair a third time.
Any reasonable person in the plaintiff’s position would have taken the obvious step to avoid the risk of not dancing on the chair while inebriated. I find that she simply decided to knowingly take the obvious risk because she was enjoying the latter part of the evening and the music so much.[16]
[16] See sections 36 and 37 of the Civil Liability Act. The court does not accept the plaintiff’s evidence that she gave no thought to the risk at the time. She was being repeatedly warned and on balance the court finds that she heard the warnings but consciously decided to take the risk.
Contributory negligence
Whilst it is also strictly unnecessary to do so, if the court is wrong about all the above, and there was some kind of breach of duty to the plaintiff, or the circumstances were relevantly exceptional, and if the plaintiff contrary to the court’s findings did not consciously and voluntarily assume the obvious risk her conduct posed to herself, in light of the facts concerned the court would adjudge her 90% contributory negligent. In short, she got herself inebriated, and over repeated warnings undertook the actions she did, resulting in her fall and injury.
Assessment of damages
Although the court has dismissed the plaintiff’s claim, in case the court is wrong about that, it is appropriate to assess damages.
It is clear that the plaintiff was genuinely and seriously injured when she fell from the chair in the defendant’s premises.
In dispute is the significance of her pre-existing back injury, the degree to which she actually required the assistance gratuitously given her subsequent to the accident, and whether all the claimed costs of treatment relate to the accident in question as against the pre-existing back injury.
Considerations and general findings relevant to the evidence called about the plaintiff’s injury and loss
The court accepts the expertise and opinions of each of the doctors whose reports were tendered or gave evidence, with some qualification however where the medical opinion was based just or primarily upon the history, symptomatology or functional limitation provided by the plaintiff to the doctor concerned.
The plaintiff’s GP records were also tendered, as were the hospital notes from the Port Broughton Hospital and the Royal Adelaide Hospital. The court accepts that all this material fairly reflects the consultations, treatment and contact the plaintiff had with her GPs and the hospitals concerned.
The court also accepts in general terms the evidence of the lay witnesses called.
Regrettably, however, the Court has some reservations concerning the plaintiff’s evidence relevant to some aspects of the value of her claim, particularly concerning the lack of seriousness she claims in relation her pre-existing back injury, the absence of difficulty she claims it caused her pre and post-accident, and in relation to the degree that the compensable post-accident voluntary assistance she received from others was necessary to the degree she claimed it was.
Firstly, as discussed earlier in these reasons, the plaintiff was not reliable or credible in her evidence concerning significant aspects of events on the evening concerned, leading up to the accident itself.
Secondly, her evidence as to the lack of problem her back injury gave her both before and after the accident was not always consistent with the discovered medical records.
Thirdly, significant aspects of her back injury were not consistently disclosed by her to specialists conducting medico legal assessments of her for the purposes of this case.
Fourthly, the Port Broughton Hospital records that were tendered by consent late in the trial reveal that after a car accident on 8 March 2009 in which the plaintiff was significantly injured, she was admitted and comprehensively lied about the cause of her injuries, fabricating a detailed story to both the admitting doctor and separately to nursing staff about trying to save a child and falling off a jetty, then a day later admitting that in fact her injuries were due to a single-vehicle motor vehicle accident in which she was the driver.[17] The obvious inference, as discussed with Counsel, was that the plaintiff lied on admission to avoid the mandatory blood alcohol testing required of every injured person upon admission to any hospital as a result of a road accident, which such testing may have led to drink-driving charges if she had proven to be over the legal blood alcohol level limit.[18] The plaintiff declined the offer to be recalled and answer questions about the event.
[17] Exhibit D7, pp 288-289.
[18] Road Traffic Act 1961, s47I(1).
Accordingly, for these reasons, and on an overall assessment of her in the witness box, the court is not able to accept the plaintiff as necessarily being a generally reliable or credible witness, notwithstanding that she was genuinely injured in the fall, where her evidence is not independently supported and is in dispute.
Accordingly, having regard to the totality of the evidence, assisted again by both counsel’s comprehensive and helpful submissions, where the plaintiff’s evidence or her presentation to those helping her at home conflicts with medical records or assessments or with the reasonable inferences and conclusions that suggest themselves based on such records, the court prefers the latter.
Factual findings concerning loss and damage
As the primary issue in dispute concerning assessment of damages is the relative seriousness of the plaintiff’s pre-existing back injury, in light of the court’s assessment of the importance of the objective medical records to that issue, it is necessary to set out the medical evidence in a little more detail than otherwise might be required.
The plaintiff’s pre-existing back injury
The plaintiff enjoyed relatively good health at least until 2001, although she did injure her coccyx in November 1988.[19]
[19] See 11 November 1988 X-ray revealing fractures to aspects of the coccyx, p 282 of D5.
On 30 July 2001 the plaintiff first consulted her Port Broughton GP about back pain, and again on 20 February 2002. On 20 November 2002 the plaintiff again consulted her GP about back pain, on this occasion reporting having fallen off her bike, returning for further consultations about it on 26 November 2002 and again in January, April and September 2003. On 11 April 2003 the plaintiff discussed options with her GP to deal with her back pain, and was told to stop upsetting it, and other matters were also discussed. On 30 September 2003 her back pain must have worsened as a CT scan was ordered and exercises recommended, and there were three further consultations concerning her back pain in October 2003. Consultations continued over several subsequent months, with various painkillers being prescribed.
On 17 November 2003 the plaintiff’s Port Broughton GP referred her to a private orthopaedic surgeon Dr Adrian Munyard, in the following terms;
Thank you for seeing (the plaintiff), age 27 yrs, with a history of back pain, severe, and most of the time. She has been going to physio, and on medication, but has no relief. CT scan with her. ??Time to consider further options??
The plaintiff resumed consulting her Port Broughton GP about back pain in early 2005 with appointments in February wherein painkillers were prescribed. Further consultations for back pain occurred on 17 May 2005, and on 30 June she reported back pain this time as a result of a fall while chopping wood, returning for a further consultation on 26 July, three times in August and once in October 2005.
The plaintiff next consulted her Port Broughton GP about back pain in February 2006, seeing them twice in that month, and from March that year also started attending a GP at Crystal Brook about it, attending on 8 March and indicating to that Doctor that she had moved from Port Broughton and was starting a new business that involved ‘lots of physical work’. Her painkilling prescriptions at that stage were Naprosyn and Panadeine Forte. From 18 February 2006 her Port Broughton GP prescriptions noted ‘low back pain not responding to non-narcotic measures’. The doctor noted she was doing physiotherapy exercises. A CT scan was ordered which on 3 March 2006 reported L4-5 disc degeneration and other abnormalities.[20]
[20] D5 page 307.
Clearly the new business involving the foreshadowed ‘lots of physical work’ immediately caused an exacerbation of the plaintiff’s back condition, as she returned to the Crystal Brook GP a month later on 10 April 2006, indicating that her back pain was worse, that she was taking 6 to 8 Panadeine Forte a day, that she was going to restart physiotherapy, and there was a discussion about the plaintiff taking time off work. Panamax was added to her existing prescriptions.
Unfortunately the plaintiff’s back pain continued to worsen, as she returned to the Crystal Brook GP on 2 June 2006 indicating that was the case. The GP added Endep to the plaintiff’s list of prescriptions however that seems to have made her feel ‘dopey’ and caused face swelling, so she returned four days later on 6 June, and the Endep was replaced by Tegretarol. The following day the Crystal Brook GP wrote to the RAH spinal unit indicating that the pain had been getting more severe over the last few months and was radiating down the plaintiff’s right leg.
It seems the plaintiff also consulted her Port Broughton GP about her back pain on 19 June, and on 26 June 2006 that GP also wrote to the RAH spinal unit, in the following terms;
Thank you for seeing (the plaintiff), age 30, with a history of ongoing back pain, related to CT confirmed disc prolapse, becoming worse on follow up CT. The pain is debilitating and interfering with her ability to work in her new business, Bianca is hopeful that surgery could help.
The plaintiff’s pain must indeed have been affecting her quite badly as she returned to her Port Broughton GP again about her back pain on 27 June, and he again referred her to orthopaedic surgeon Dr Munyard, the referral being couched in roughly similar terms to the RAH Spinal Unit letter reproduced above, notwithstanding they were awaiting a reply from the RAH spinal unit.
That referral must have been conducted urgently, as only a few days later on 3 July 2006 Dr Munyard reported back to the GP in the flowing terms:
(The plaintiff) … told me that she has had a bad back for a while. There has been an ongoing niggle but in the last three years it has been much worse. Three years ago she got out of a car and couldn’t move.
She stated the pain is now constant. Sitting and lying are difficult. Nothing seems to be working despite taking Naprosyn and Panadeine Forte.
There is a restriction of movements of her lumbar spine with forward flexion 55 degrees where the normal is 90. Extension is one-third the normal range. Lateral flexion and rotation are about half the normal range.
A CT scan shows she has a central disc prolapse at L4-5. This appears to be a little bit bigger than it was a couple of years ago.
At the present moment I would suggest trying a couple of things; one, I would change her anti-inflammatory and I would also give her some Endep, Dothep or something similar. It is probably worth trying her with some slow release narcotic.
If this doesn’t do her much good then she might be helped by steroid facet joint injections. I would suggest doing the former before the latter.
On the basis of this advice from Dr Munyard, on 7 July 2006 the Port Broughton GP ‘after a long discussion about the pros and cons’ prescribed the plaintiff a slow release narcotic in the form of OxyContin, at a dose of one 10mg tablet daily. Further consultations for back pain and prescriptions of OxyContin and Panadeine Forte continued over following months both at Port Broughton and Crystal Brook GP practices.
On 9 August 2006 the RAH Spinal Unit wrote to the plaintiff indicating they had reviewed information sent to them about the plaintiff and recommended against surgery and in favour of non-surgical treatment.[21]
[21] D5, p74.
On 1 December 2006 and 14 February 2007 the Crystal Brook GP wrote to the Health Commission that the plaintiff had ‘chronic severe disabling pain not responding to non-narcotic analgesia’.
At a Crystal Brook GP consultation on 14 February 2007 the plaintiff said that she had got out of the shop and felt much better, and the pain was well controlled. There is a note ‘wants specialist opinion – will see someone privately’.
At a Port Broughton GP consultation on 30 March 2007, the 10mg dose of OxyContin was doubled to 20mg but to be taken only once daily. Shortly after that, the 20mg dosage of OxyContin was changed to twice daily. She was referred to the RAH Spinal Clinic that day in the following terms;
Thank you for seeing (the plaintiff), age 31 years, with a history of ongoing back pain, related to CT confirmed disc prolapse, becoming worse on follow up CT. The pain is debilitating and interfering with her ability to work. Bianca is hopeful surgery could help.
Attendances for back pain continued, with the notes made on 24 May 2007 that the appointment for back pain at the spinal clinic was the next day. GP notes made a week later indicate she had been advised against surgery at the spinal clinic. Notes indicate that the plaintiff had indicated in her pre-outpatient spinal assessment form that her back pain was ‘a major problem’.[22]
[22] D5, p 304.
The 25 May 2007 report from the ‘Lead Physiotherapist’ at the RAH Spinal Assessment Clinic said;
The patient reports a three year history of right sided low back pain but no symptom referral … Currently prolonged standing provoke(s) the symptoms, which are partially relieved with opioid analgesia. The patient is working part time at a local delicatessen and walks regularly…..
On examination the patient demonstrates a normal gait, flattened lordosis and elevated and body mass. There is marked tenderness on palpation of the lumbar motion segments but the sacroiliac joints appear clear. Poor active lumbar motion is demonstrated with symptom provocation at the limit. The neurological examination and Neural Stress tests … were normal. Deduced abdominal and paraspinal muscle control noted…
ASSESSMENT: Lumbar Disc degeneration (L4/5)
PLAN:
1.An active physiotherapy program involving “trunk stability” exercises is recommended (? local service or Port Pirie Hospital).
2. Review mid-2007 in the Spinal Assessment Clinic.
On an attendance at the Port Broughton GP on 23 November 2007 the plaintiff said that she was ‘finding ways around mopping and vacuuming’, which I find indicated that she must have been having trouble doing those activities at that stage.
She continued to attend concerning her back for OxyContin prescriptions, and periodically for Panadeine Forte throughout 2007 and 2008. On 17 November 2008 the plaintiff was lent a pain management publication by her doctor so that she might explore ‘non drug ways of coping to maybe try less OxyContin’.
On 22 December 2008 the plaintiff consulted her GP about her back pain, indicating she was again having physiotherapy for it. The doctor advised her that she needed to protect herself in the workplace in relation to it, pending some further investigation, and the notes indicate letters being written ‘re Gpmp[23] (Full) Arthritis’ and ‘re Team Care Plan – Arthritis’. That was a reference to a GP Management Plan comprising a comprehensive review and strategy for managing the osteoarthritis that it seems was now a contributing component to the plaintiff’s back condition and pain, and flagged possible referral to a pain clinic.[24]
[23] GP Management Plan.
[24] D5, pp 182-185.
In early 2009 the back condition was causing the plaintiff significant pain, as on 18 February 2009 the plaintiff consulted her GP yet again about it with the notes indicating she was suffering from it, that there had been no follow up to the Spinal Assessment Clinic but that was now being arranged.
On the evening of 8 March 2009 the plaintiff was admitted to the Port Broughton Hospital. As earlier indicated she fabricated a story that she had fallen off a jetty, however a day later told nursing staff that she was a the driver of a car involved in a single-vehicle motor vehicle accident wherein her car slid in the dirt and rolled over. She told Dr Edwards that she recalled losing control but next recalls being out of the car, and that she usually wears a seatbelt but that she may have been thrown from the car. The notes indicate that the doctor chastised her ‘re risk to life of not advising re true mechanism of injury’. Pain including to both knees and to her back was noted. She also had lacerations and other complaints. She was treated variously over several days and released from hospital on 13 March 2009.
On that same day, 13 March 2009 the plaintiff again visited the GP for her back pain and was prescribed Endone, a very strong painkiller, to be taken twice a day.
On 24 March 2009 the plaintiff again consulted her GP for back pain and was referred to the RAH Spinal Clinic in the following terms;
Thank you for seeing (the plaintiff), age 33 yrs, with a history of ongoing back pain. She remains on narcotic medication on a twice daily basis to manage the pain. We are keen for your further advice and input.
The referral noted that the plaintiff was on daily Endone, OxyContin and Panadeine Forte for her pain. Her GP provided a medical certificate to Centrelink that she was unfit for work from 23 March 2009 to 30 March 2009 on the basis of ‘back pain, exacerbated by MVA’.[25]
[25] D5, p192.
On 2 April 2009 the RAH Spinal Assessment Unit wrote to the plaintiff’s GP indicating she had been placed in an appointment booking queue and would be contacted three weeks prior to her appointment date.
What all this indicates is that as at February 2009 the plaintiff had a serious, worsening degenerative back condition that gave her significant, continual, ongoing pain requiring strong painkilling medication, and that notwithstanding that medication, she still had problems and complaints of pain such that she had a consulting orthopaedic surgeon.
That back condition was exacerbated by the road accident the plaintiff had on 8 March 2009, just over a month prior to the incident the subject of her claim before this court.
That exacerbation had required a significant increase in her medication, with Endone being added to other painkillers already being prescribed, and prompted a further referral to the RAH Spinal Unit.
It is clear that the plaintiff’s chronic back pain has continued after the plaintiff’s fall from the chair, as evident from periodic GP consultations relating to it.[26]
[26] For example. see letter from Crystal Brook GP to physiotherapist dated 13 January 2010 at D5 p 64.
The plaintiff gave evidence at trial about her previous back condition, indicating that it in fact did not give her any real difficulty in relation to her work over time. She also said that the March 2009 car accident did not effectively worsen her back pain. The court cannot accept this evidence as accurate or truthful, in light of the totality of the medical evidence which clearly indicates a severe and debilitating back condition, plainly exacerbated by the car accident a little over a month prior the events the subject of this case. The medical evidence and complaints made by the plaintiff to the various medical practitioners over time of pain and incapacity due to her back condition, such as difficulty with domestic tasks such as mopping and vacuuming, and the inability to cope with the more physical job at Crystal Brook which plainly exacerbated her condition, were quite inconsistent with a number of aspects of the evidence the plaintiff gave.
The plaintiff had a debilitating and degenerating back condition requiring considerable ongoing pain medication, which was not fully managing her condition, at the time of the accident.
The plaintiff’s injuries and incapacity from the accident
There is no doubt that the plaintiff was seriously injured when she fell off the chair at the defendant’s premises.
She was immediately in great pain, and was assisted by wheelchair to the Port Broughton Hospital. She remained in pain there, and was transferred to the Royal Adelaide Hospital (“RAH”) the next day, by way of a lengthy and uncomfortable ambulance ride.
Reports from Dr Bogdan Solomon the supervising orthopaedic surgeon at the RAH were tendered, summarising the plaintiff’s injuries and treatment at the RAH.
On 22 November 2010 Dr Solomon reported that the plaintiff was admitted on 18 April 2009 having sustained a right tibial plateau fracture with associated peroneal nerve damage and a leg compartment syndrome. The plaintiff had an emergency fasciotomy after her admission, an open reduction internal fixation of the fracture and was then treated with physiotherapy. Dr Solomon said that her prognosis was good, although osteoarthritis was likely at some time in the future. Dr Solomon reported that the plaintiff was totally incapacitated at the time of injury however made steady progress, with stabilisation expected after 2 years.
Dr Solomon provided a further report shortly prior to trial, dated 29 September 2014. He reported that the plaintiff had been regularly reviewed as an outpatient, and had made the expected progress. In 2011 the metal bracing had been surgically removed, and she had last been seen on 7 August 2014 at which time she complained of knee pain that suggested progression towards osteoarthritis. He explained that the fasciotomy had been to treat the compartment syndrome she had developed on her admission.
He explained that in the long term the plaintiff’s knee would degenerate towards arthritis and may require a total knee replacement. He said that in order to determine if a different type of surgery might be useful a MRI had been organised, but he had not seen that yet.
Dr Solomon concluded that the plaintiff has a permanent residual disability of her right knee and to some degree her right ankle and foot, some of which might be reversible with further surgery. He said that she was potentially incapacitated for work, but could not comment on the extent of that as it would be determined by her pain levels caused by any degenerative joint disease and potential knee instability. He said she could perform any activity that she could tolerate doing.
A medico legal assessment of the plaintiff was conducted by another orthopaedic surgeon Dr Gordon Morrison, in June 2012. Dr Morrison explained that a compartment syndrome is where, due to injury, swelling occurs and muscle compartments are deprived of blood thereby, an emergency surgery to open these compartments with long linear incisions is required. That procedure is a fasciotomy. Dr Morrison recorded that the plaintiff was in the RAH for four weeks then moved back to Crystal Brook where she was on crutches and a brace for two months. She suffered a ‘drop foot’ as a result of nerve damage but that this had gradually recovered.
Dr Morrison’s examination revealed well healed but extensive scarring to the right lower leg, and indeed the plaintiff showed her scarring to the court from the witness box. In his report dated 15 June 2012 he reported;
Her right knee has no loss of extension and no extensor lag when she elevates her leg. The right knee will flex to 105 degrees, the left flexing to 120 degrees. There is some swelling of the right calf compared with the left with the maximum measurement of the right calf being 38.5cm and 37cm on the left. There is no measurable difference of thigh circumference 10cm proximal to the knee. There is a patch of altered sensation over the anterior border of the right tibia measuring some 15cm x 5cm. Ms Sculler has noticed that this area tends to have more hair growth than the rest of her leg. There is no weakness of any muscle group in the right lower extremity. Movements of the right ankle are restricted compared with the left. She has no active dorsiflexion with a fixed 10 degree plantar flexion deformity on the right, but can get to 0 degrees, plantargrade on the left. Active plantar flexion on the right is to 40 degrees being 70 degrees on the left.
Examination of her right knee shows quite marked medial and lateral joint line tenderness. There is no effusion. There is a suggestion of increased AP glide on the right compared with the left, although Lachmann test is negative. There is no undue collateral laxity. There is tenderness of the medial and lateral facets of the patella on the right side.
I have not had the opportunity to view x-rays other than the photocopied right knee x-ray of the 28th May 2009. An up to date x-ray of the right knee would be useful to assess any evidence of post-traumatic osteoarthritis.
Dr Morrison’s report also recounts the plaintiff’s statements to him as to her complaints of pain and lack of function. It also contains the plaintiff’s statements to him about her pre-existing conditions;
There is no significant past medical history. In her 20’s she had a back injury but made a full recovery. Some weeks prior to the accident in question she was the sole driver of a motor vehicle which lost control on a dirt road, hurting her ribs and her left knee. She was off work from some five days. She does not believe that she sustained any injury that had a long term consequence from the accident.
This history by the plaintiff was obviously completely misleading. It was just plainly untrue to tell Dr Morrison that she had made a complete recovery from her back injury at the time of the accident, when in fact she was suffering from a serious, worsening back condition that required serious narcotic medication and was awaiting a spinal unit review as she could not manage the pain adequately as she was, and when she had told Centrelink that she could not work due to her back injury having been exacerbated by her motor vehicle accident. I find that this throws into question the accuracy of anything the plaintiff told Dr Morrison, which is not independently supported.
In July 2014 the plaintiff was referred to a different orthopaedic surgeon, this time Dr David Marshall, for another medico-legal assessment for the purposes of this case. The solicitors’ referral letter documented to Mr Marshall the plaintiff’s lower back injury, this time indicating to the specialist that there had been a road accident which had in fact exacerbated the back condition. At the consultation with Dr Marshall the plaintiff however told Dr Marshall she had ‘fully recovered’ from the ‘minor injuries’ she suffered in the road accident. Dr Marshall was of the view the plaintiff had only a vague memory of her hospitalisation.
Dr Marshall notes that her back pain had increased and a MRI of her lumbar spine had been organised dated November 2009. He notes the plaintiff telling him that her low back pain had become worse since her injury, now seemingly present all day every day, telling Dr Marshall that by contrast before the injury it was less frequent. That is also quite misleading. Her back pain prior to the accident was serious, constant and worsening. In the totality of the circumstances of this case, similarly with Dr Morrison, the court cannot be satisfied of the accuracy of the history or complaints made by the plaintiff to Dr Marshall unless independently supported.
The result of Dr Marshall’s physical examination was as follows;
When I examined this young woman, I noted that she walked with a slight limp and on inspecting the right leg, I noted two well healed surgical incisions involving almost the whole length of the right lower leg. On the lateral side the scar was 26cm in length, while on the medial side, the scar was 30cm in length.
The range of motion of the right knee was 0-100 degrees, compared with 0-120 degrees on the normal left side. There was some minor medial/lateral ligamentous laxity, which is to be expected following such an injury. This is due to stretching of the capsular ligaments. There was a 1+ AP laxity but I could not determine whether this was due to anterior or posterior cruciate ligament disruption. If this was to be determined, then an MRI scan would be required.
I examined the lower limb for sensation loss and noted that there was altered sensation over the lower half of the anterior tibia, ie, between the two surgical incisions and this is to be expected as cutaneous nerves will be damaged as a result of these incisions. There was a vague, minor alteration in sensation over the dorsum of the foot, which corresponds to the lateral popliteal nerve paresis.
Muscle power – I noted that there was normal power of plantar flexion of the right foot. Similarly, there was normal power of inversion and eversion of the right ankle. There was a mild loss of power of dorsiflexion of the ankle, this being slightly less than 5 on a 0-5 scale and I noted that there was continued weakness of dorsiflexion of the great toe and this was assessed at being slightly less than grade 4.
I then examined the left knee, which she claims to be painful and which Ms Sculler claims has developed symptoms as a result of placing increased pressure through that leg.
I was of the opinion, following the examination, that there was a normal range of motion. There was some patellofemoral clicking during knee flexion but this was not painful. There was no swelling and no muscle wasting.
Dr Marshall went on to say that his examination did not substantiate the plaintiff’s claim of a secondary left knee injury. He concluded that she had reached the point of maximum medical improvement. He assessed her loss of function as 20% of the function of the right lower limb at or above the knee, and described the ongoing effect on the plaintiff of her right knee injury as;
… residual effects (minor) of the peroneal nerve palsy; a feeling of instability and weakness in the right knee; continued discomfort and swelling with exercise and severe scarring as a result of the surgery which was required…
Dr Marshall assessed the plaintiff as quite capable of self-care and observed that she was also performing normal home duties. He said she does have limitations in the length of time she is able to stand and walk however he hopes that would improve over time. He was of the view that there is an increased risk of post-traumatic arthritis as a result of the injury, although it is impossible to assess if and when that may occur. If it did, the first step would be an MRI at a current cost of $1,200 and arthroscopic surgery at a current cost of $3,000.
He concluded that the fall would not necessarily accelerate the expected degeneration of the lumbar back condition that had been occurring for years and was continuing.
He assessed her as quite capable of pursuing her current employment, of light manual work and sedentary work, but would be disadvantaged on the open labour market due to her leg injury.
As to further treatment, Dr Marshall concludes;
I do not consider that your client requires any further treatment with regard to her right leg injury. She needs to develop at home, a regular exercise programme to improve her mobility.
In July 2014 the plaintiff was also referred to an occupational physician Dr Roberto D’Onise, who also produced a medico legal report on the basis of his assessment of the plaintiff.
Unfortunately the history the plaintiff provided to Dr D’Onise, particularly concerning her pre-existing back injury was, as with the other two medico legal doctors, quite misleading. She told him that at the time of the accident she was on 10mg of OxyContin twice a day, which was half the dose she was actually on, and made no mention the Panadeine Forte and Endone which she was also being prescribed for her back pain at the time.
Then the plaintiff also misled Dr D’Onise about a supposed significant change in her medication due to the accident at the hotel. She told him that prior to the fall she was on just 10mg of OxyContin twice a day, but said that after the fall she was put on 20mg of OxyContin twice a day plus Endone and Endep. In this way, she presented the situation to Dr D’Onise as if her pain killing medication had been radically increased due to her fall in the defendant’s hotel.[27] This was not the case at all.
[27] Dr D’Onise confirmed in evidence that this is what the plaintiff had told him, see T367-368.
In reality, she had been taking 20mg of OxyContin twice a day since early 2007 for her back injury, together with Panadeine Forte. Further, on 13 March 2009, following the road accident, but over a month prior to her fall at the hotel, Endone had been prescribed for her exacerbated back pain
In relation the motor vehicle accident shortly before the fall at the hotel, which on all other indications exacerbated her back injury, she said to Dr D’Onise, as reported by Dr D’Onise ‘it was a single car rollover and she was wearing a seatbelt. She reports more cuts and bruises than anything with some pain to the right ribs and a sore left knee that she states was bruised. She was hospitalised for 4 days and then the pain resolved.’ This was quite inaccurate and misleading. She had told the hospital she could not remember if she wore a seatbelt and may have been thrown out of the car, told the hospital she injured her back in the car accident, and got increased medication, and time off from Centrelink, on the basis of a back injury exacerbated by the motor vehicle accident.
The subsequent occupational assessment made by Dr D’Onise is based in a significant degree on the range of subjective complaints and description of pain, discomfort and subjective symptoms by the plaintiff. Regrettably, in light of the misleading information given to Dr D’Onise, and that in all the circumstances the court cannot rely on the accuracy of any history or subjective complaint given by the plaintiff to Dr D’Onise, the court can only place very limited weight on his report and evidence as to the plaintiff’s capacities.
I note and accept Dr D’Onise’s evidence as to the current cost of a knee replacement, should it be required by the plaintiff, of $23,000 plus rehabilitation at a cost of between $3,200 and $4,750. In Dr D’Onise’s opinion, such an operation would be required in 7-10 years, however I find this timing is based in part on the plaintiff’s unreliable subjective complaints as to the seriousness of her current pain and impairment of function, however it remains something that the plaintiff may need at some time due to her knee degenerating in the future. Dr D’Onise said that if she had such operation she would need considerable assistance for the first 6 weeks after surgery, and a lesser amount for another six weeks.
In Dr D’Onise’s opinion a biomechanical rehabilitation program with a physiotherapist is recommended, and would cost $5,000. There is some support for this from Dr Marshall, who recommends a regular exercise program in the home.
The court accepts on the basis of all the evidence, that the plaintiff was injured as reflected in Dr Solomon’s objective reports and the RAH and Port Broughton Hospital notes. That was a serious and painful injury which resulted in approximately a month’s admission to hospital. The court accepts the two orthopaedic medico legal assessments in terms of their physical examinations of the plaintiff, but as indicated does not place significant weight on their reiterations of history and subjective complaint from the plaintiff, for the reasons given.
The plaintiff then slowly further improved over the next two years as outlined by Dr Solomon and the other doctors, although the same qualification as to the plaintiff’s subjective history and complaints must be made as earlier discussed and outlined.
In early June 2009 the plaintiff reported to her Crystal Brook GP that her pain was reasonably controlled. In September she reports her leg was more painful but that she might have been doing more as well. In September her Endep painkiller was ceased, and in November her Tramal was also ceased, and she continued with her pre-accident medication of OxyContin twice a day but in December reduced to 10mg, two in the morning and one at night.
At this stage it seems the plaintiff had become fairly active, reporting to her Crystal Brook GP on 20 December 2009 that she had hurt her foot walking through mangroves in the previous week.
Over January her pain medication was again adjusted, with a reduction in OxyContin in January 2010 to 10mg twice a day, her GP noting on 5 February 2010 that she had gone 3 days without it.
On 5 August 2010 the plaintiff presented to her Crystal Brook GOP for a medical clearance for a job, and ‘no obvious deficits identified’ is noted.
On 19 October 2010 the plaintiff reported to that GP that she was working at AWB, with the only observation that her back was a bit stiffer in the ‘am’. As at 19 November 2010, the plaintiff presented for her prescription of 10mg of OxyContin twice a day, on the basis of ‘painful right knee and back, chronic longstanding pain’. Similarly on 21 January 2011 she attended for her prescriptions reporting that ‘Bianca presented for a repeat OxyContin script. She is achieving good analgesia for her back and R shin on 10mg bd’.[28]
[28] Bd presumably stands for with breakfast and dinner.
On 17 May 2011 the Crystal Brook medical practice certified the plaintiff as fit to return to work and resume ‘her usual duties’. That may have been after the surgical removal of the metal support that had been placed in her leg by the RAH during surgery in April 2009.
It is evident from all this that the plaintiff is now on less painkilling medication than for her pre-accident back injury, but that she does suffer some ongoing pain from a combination of the two. Both are likely to degenerate over time as described in the medical evidence, however the likely osteoarthritic leg injury degeneration can be potentially successfully addressed by arthroscopy and/or a knee replacement.
Other evidence about the plaintiff’s injury, pain and incapacity
I have regard to all the evidence given in the case. For brevity I will not summarise all or even most of it.
The plaintiff gave evidence about the course of her injuries, her recovery, pain, lack of function, difficulty and residual disability. Whilst I have regard to all of it, for reasons earlier discussed the court places primary reliance on independent physical assessment and the evidence of third parties as to the plaintiff’s post-accident injury, pain and incapacity.
The plaintiff called her former partner Mr Simon Hall who said that he started a relationship with the plaintiff when the plaintiff’s daughter was about one, and that they moved in together about two years prior to the accident and remained together for about a year after the accident. He said that while he was aware of the plaintiff’s previous back pain, he did not notice the plaintiff having any trouble with it or it preventing her doing things around the house. In cross examination he said he had noticed the plaintiff’s back playing up more in the months leading up to the accident.
Mr Hall said that after the accident when they used to go out on his boat in 2010, that while she had no difficulty in the boat or swimming, she had a bit of difficulty with her leg when climbing back into the boat. The only other thing he noticed was that her mood changed, in that ‘I used to get told off more’. Mr Hall was a straightforward witness who gave apparently credible evidence.
The plaintiff called her work supervisor Mr David Arbon. He gave evidence that in 2010 the plaintiff was employed by his company Cargill Grainflow. In cross examination he confirmed that she started with the company in August 2010.
Mr Arbon gave evidence that the plaintiff underwent a medical assessment prior to employment. He said that document could not now be located. Mr Arbon said that the plaintiff initially worked as a part time administrator for a short time, then worked as a grain sampler during the grain season. When the grain season was over the plaintiff was kept on performing administration work, which he said she did very well. A couple of times in a 12 to 16 month period in the office he said he saw her grab her knee and felt she may have been going to fall. On a couple of occasions over time Mr Arbon told the plaintiff to go home after he noted her under mental stress or in discomfort.
It is plain from Mr Arbon’s evidence that plaintiff did well at Cargill Grainflow. In 2012 the plaintiff was promoted to a head sampler position. At present she is now in a supervisory role, supervising head samplers and also office administration.
Mr Arbon said she did a very good job, that she is a valued employee and that he would not be in a hurry to lose her.
Mr Arbon was also by and large a straightforward witness who gave apparently credible evidence, except on the topic of his failure to locate the plaintiff’s medical clearance. His answers on that topic were quite unsatisfactory, for example saying that it had been sent to the Melbourne office but that in trying to locate it, he did not enquire with the Melbourne office.
The plaintiff called her daughter Ms Chloe Bartley to give evidence. Chloe gave evidence about what her mother the plaintiff could do before the accident, and evidence about the things her mother no longer did after the accident. She said her mother was in hospital for about a month, then when she came they lived with the plaintiff’s mother, her ‘nan’. She said the plaintiff couldn’t do much at first and used a wheelchair, gradually doing more over time. She described how her ‘nan’ used to help the plaintiff, including cooking and helping her shower until they moved out in 2011.
Chloe gave evidence that from about 1-2 years ago she has done most of the cooking, and does the washing up. Chloe said she also does the sweeping, vacuuming, mopping, dusting and cleaning the bathroom, and washes the clothes. She takes turns with her uncle to mow the lawn. She said she liked to go on walks but that her mother did not now come with her. She said they had not been out on a boat since the accident. This evidence was inconsistent with the evidence given on that topic by Mr Lane.
Chloe was a very nervous and constantly upset witness, often verging on tears, indicating on several occasions that she was scared. That presentation gave some cause for concern. She is an obviously intelligent child. She gave evidence in a small courtroom with few people present, was questioned in a quiet and non confrontative way, and periodically reassured by the bench. In light of that, her level of obvious anxiety and fear was difficult to explain, and left the court with a sense of unease about the reliability of her evidence. Her evidence about the boat was not consistent with Mr Hall’s evidence. In the end Chloe was not an entirely satisfactory witness. In the circumstances the court cannot place much weight on her evidence, and prefers the evidence of Mr Hall as to the plaintiff’s post-accident boating.
The plaintiff called her mother Geraldine Schuller to give evidence. She described the plaintiff’s childhood and activities she enjoyed while growing up.
The plaintiff’s mother told the court that in 2006 she set up a takeaway store at Crystal Brook, and that she and the plaintiff ran it as a team together for about eight months. She said that she didn’t observe her daughter having any problems in her duties at that store. The medical evidence is of course all to the contrary.
The plaintiff’s mother described the plaintiff in hospital after the accident and how things went when the plaintiff came to live with her after being discharged from the hospital. She told the court how the plaintiff was in a wheelchair for over a month, and she helped her dress and undress and bathe for around four weeks. After the month in the wheelchair, the plaintiff would use crutches, but still sometimes revert to the wheelchair. She said that cleaning was stepped up for about four to five months due to the risk of infection. She said she did the plaintiff’s washing and ironing for about five to six months. She said she did the cooking for eight to nine months and the washing up as well for six, seven or eight months. She said she did the grocery shopping for five to six months.
She said the plaintiff couldn’t drive for perhaps 12 months, and she drove her to appointments. After 18 months or two years, the plaintiff moved out into her own house. She said that the plaintiff had not been as involved in activities with her daughter as she used to do.
In cross examination the plaintiff’s mother conceded that some of what she did, such as cleaning and cooking, she would have been to an extent doing for herself anyway.
The plaintiff’s mother was a relatively straightforward witness, however appeared keen to support her daughter’s claim. The court by and large accepts her evidence as to what she did for her daughter, however that was for the most part based on what the plaintiff said she could and could not do, rather than an objective assessment of what the plaintiff could and could not do.
I find that after the plaintiff was able to operate without crutches by perhaps three months after the accident, and at that time she could do some things around the house. The court finds that she steadily improved until she resumed work and moved out of her mother’s house in August 2011. I find that at that time or shortly afterwards she was able to perform a full working day of the light physical work of an employed grain sampler. This is consistent with Dr Solomon’s opinion that her injuries would stabilise by about two years after the accident. I find that by that time she likely only suffered the moderate impairments later observed and quantified by Dr Marshall as 20% of the right leg at or above the knee. In light of that, I find that the plaintiff was able to perform house work at least to the degree of her pre-accident capacity, given that I find she had some pre-accident incapacity due to her degenerative back condition, by the time she moved out of her mother’s house in August 2011, although would have still likely tired a little more quickly than before the accident.
Non economic loss
Non-economic loss falls to be determined pursuant to section 52 of the Civil Liability Act.
The court is satisfied that the plaintiff’s ability to live a normal life was significantly impaired by the injury for more than seven days as required by section 52(1)(a), and accordingly an award of damages may be determined.
The court must assign a numerical value to the injured person’s non-economic loss of 0-60, such scale reflecting the scale between no loss and loss of the gravest conceivable kind.
In light of the above findings about the plaintiff’s injury, recovery and residual pain and discomfort from her leg, the court determines the plaintiff’s loss at a scale figure of 15.
If an award were to be made, the agreed amount for such a points assessment in relation to a 2009 injury is $27,840.
Loss of past earning capacity
It was agreed at trial that the plaintiff was unable to work for the period between the accident on 18 April 2009 and when she was employed at Cargill Grainflow in August 2010.
Pursuant to section 54 of the Civil Liability Act, the first week’s economic loss must be excluded.
The plaintiff’s gross earnings from personal exertion for the three tax years up to and including 30 June 2009 were:
· 2007 tax year: $5,757
· 2008 tax year: $11,951
· 2009 tax year: $8,954
The 2009 figure represents earning for only part of the tax year, the period 1 July 2008 to 18 April 2009, which is approximately nine and a half months. Extrapolated to a full year the figure approximates $11,300. The average of $5,757, $11,951 and $11,300 is $9,669. I round that up to $10,000.
I consider that a fair assessment of the plaintiff’s earning capacity at the time of the accident, given that she had a degenerating back condition, and the further back one goes the less her capacity would equate with her capacity at the time of the accident.
Sixteen months at $10,000 per annum, less a week, equates to approximately $13,000. Tax would be payable on that sum, however the plaintiff’s tax returns indicate credits and rebates to the extent that in the plaintiff’s case tax would not be payable upon such sum. The plaintiff is entitled to an agreed superannuation contribution of 11%. Accordingly the plaintiff’s loss of past earning capacity is assessed at $14,430.
If an award were to be made, the plaintiff would also be entitled to interest on this sum at an agreed rate of 6.5%.
Loss of future earning capacity
The plaintiff’s gross earnings from personal exertion since she recommenced work in August 2010 are as follows;
·2011 tax year: $20,482
·2012 tax year: $44,475
·2013 tax year: $43,728
·2014 tax year: $50,339[29]
[29] This is the plaintiff’s taxable income. A tax return was not tendered for this tax year.
Tax must be deducted at the applicable rate to achieve a net figure.
These earnings substantially exceed what the plaintiff was earning prior to the accident. Essentially the plaintiff has ceased her pre-accident career in low paid part time work in the hospitality and food industry, and has secured well paid administrative and grain testing work in the agricultural industry.
The evidence establishes that due to a combination of her leg injury and her non-compensable degenerative back condition, she is not able to undertake moderate or heavy physical labour. Both conditions are subject to deterioration over time, and probably equally contribute to her incapacity for that type of work.
Her current job, although designated casual due to the employment practices of her current employer, is in effect a secure and ongoing job. The plaintiff is a valued and well regarded employee who her employer is keen to keep. There are other companies conducting similar businesses who I find the plaintiff would be qualified to gain employment with should she lose her current employment. She also now has skills in office administration which would enable her to secure that type of work in other industries and businesses.
The plaintiff has however lost capacity to do lower paid moderate to heavy manual labour, should she lose her current job and also be unable to secure the kind of work she currently does, or any other administrative job for which she is currently now also qualified. Only half of this loss is due to the leg injury. In the court’s view, in the totality of the plaintiff’s circumstances, this represents a very modest loss of earning capacity.
In the court’s view, it is likely that the plaintiff will remain gainfully employed in the type of role she currently enjoys, or a similar administrative role, for as long as she wishes to remain in the workforce.
She may need a knee replacement in perhaps 10 years’ time, which if she does will take her out of work for approximately three months, which at her current rate of gross pay equates to $12,500.
I have regard to the plaintiff’s age, and the actuarial evidence tendered, and the totality of the circumstances.
Future loss of earning capacity is assessed at $25,000, to which I add 11% superannuation, totalling $27,750.
Past and future voluntary services
The court finds that the plaintiff was provided with very significant voluntary services by her daughter and mother for the first two months she returned from hospital, then gradually reducing services over the next 12 months until she moved out and took up employment with Cargill Grainflow in August 2010.
The agreed rate for performance of those services is $22 an hour.
From that time, however, whilst the court accepts that the plaintiff’s daughter Chloe has continued to provide substantial assistance around the house, and that has assisted the plaintiff, in fact the plaintiff has been capable with some effort on her part, of performing these services herself.
From that date, accordingly, the services provided by Chloe and anyone else were not reasonably required in a legal sense to have been performed for the plaintiff, nor would it have been otherwise necessary to engage someone to perform them.
I find that for the first month at home the plaintiff would likely have needed perhaps five hours provision of services per day, totalling approximately 150 hours for a 30 day month.
For the second month perhaps three hours per day, totalling 90 hours for a 30 day month.
Then, as an average for the next 12-13 months, perhaps one hour a day assistance, totalling perhaps 390 hours
Six hundred and thirty hours at the agreed rate of $22 an hour would total $13,860, so were an award to be made for past gratuitous services, it would be that sum, plus interest at the agreed rate of 6.5%.
The court finds that there is no ongoing need for voluntary services.
There would be a need for some voluntary service or paid support should the plaintiff undergo a knee replacement which on balance is likely in perhaps 10 years. On the basis of Dr D’Onise’s opinion that she would need considerable support for six weeks then lesser support for a further six weeks, the plaintiff would also be entitled to the present value of the cost of providing such support in 10 years’ time at the agreed future rate of $25 an hour for, in the court’s opinion, four hours a day for 42 days totalling 168 hours, then two hours a day for a further 42 days totalling 84 hours, for a grand total of 252 hours.
Future medical expenses
The court finds on the basis of Drs D’Onise and Marshall that a supervised physiotherapy exercise program to improve the biomechanical function of the plaintiff’s leg is currently justified, and would cost $5,000.
The court finds there is some possibility that following a MRI, arthroscopic surgery might be recommended shortly. If that were the case, the cost would be a total of $4,200.
The court finds that in 10 years a knee replacement is likely albeit not certain, at a current cost of $23,000 plus rehabilitation at a cost of approximately $4,000, totalling $27,000.
The court finds that there is no need for future pain killing medication beyond what the plaintiff would likely in any event be currently taking for her pre-existing degenerative back condition.
Special damages
A schedule of $4,115.21 worth of unpaid special damages was tendered. It was agreed that the plaintiff had incurred these costs, however the defendant submits that some of those costs are self-evidently for the plaintiff’s pre-existing back injury or other complaints.
The court has reviewed that schedule. The plaintiff continued to be prescribed a broadly similar course of pain killing medication as she had been taking for her pre-existing back condition. Some of the consultations and expenses related both to the back and to the leg, whereas many related to the leg alone. Having reviewed the schedule, the court assesses that approximately $3,000 of the incurred expense can be fairly related and apportioned to the accident.
Conclusion
Whilst in an abundance of caution findings of fact relevant to damages, and an assessment of damages to the extent necessary to enable an appeal court to finally dispose of the matter should the judgement on liability be overturned, in the court’s opinion the plaintiff has not succeeded in establishing that the defendant was in any way responsible or liable for the injuries she suffered when she stood on a chair to dance on in the early hours of the morning of 18 April 2009 and then fell to the ground.
As earlier mentioned, there was nothing unsafe about the way the hotel was conducted on the evening in question by its staff.
The plaintiff’s conduct was a direct result of her making an irresponsible decision to behave the way she did while inebriated, in what were objectively safe premises being run competently by the defendant. There were plainly no exceptional circumstances in this case, within the legal meaning of that phrase.
The plaintiff was entirely responsible for her accident and her injuries. She did what she did despite repeated warnings from the hotel not to do so.
Accordingly the plaintiff’s claim is dismissed.
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