Shephard v Loxton Hotel-Motel Inc. No. DCCIV-97-30704 Judgment No. D3826

[1998] SADC 4013

SHEPHARD & OTHERS V LOXTON COMMUNITY HOTEL-MOTEL INC.

Civil
Judge Bright

The plaintiff was born in 1933.   She married in 1972 and has four adult children.   Her training was as a nurse and she worked at that calling until 1987.   Her husband is an expert in grafting grape vine cuttings for commercial vineyards.   He and she set up a business to do this.   I will describe it in more detail later.   They live in Loxton.

The defendant is the community owned hotel in Loxton.   Shortly before the events of this case those premises were altered so that poker machines could be installed.   Of relevance, what had been a private function room became the main dining room.   A dance floor which had formed part of the former room was retained.

The natural course for patrons who visited to dine was to cross that dance floor to a counter where the menu could be read and meals could be ordered.   It would have been possible to cross a corner of the dance floor, get onto the carpet and then weave one’s way amongst tables to get to that counter, but that was not the practice.   The defendant expected patrons to traverse the dance floor.

Ms. Cusick was appointed manager in August 1994.   She realised that the dance floor was too slippery to be suitable as a trafficked thoroughfare.   She found that the hotel had some spare carpet matching surrounding areas, but not enough to fully cover the dance floor.   She placed an order for more carpet.   It took some time as it had to be specially made.

On 8 October 1994, the plaintiff, with other members of her family, went to the hotel for dinner.   Her husband and son walked across the dance floor - and had no problem.   Her son’s partner went next and as she crossed slipped a little but caught herself.   The plaintiff noticed this and almost at once herself slipped.   Her feet went forward and she sat down heavily.  She was embarrassed and got up quickly, helped by her husband and son.   Though they ordered and ate dinner, and thereafter she returned to her work, her back soon became painful and it is for that that she claims in this action.

Mr. Maddern, a consulting engineer, has made something of a speciality of examining floors on which people have fallen.   Some time ago he examined a number of premises in Rundle Mall in common use by shoppers to develop a set of background data against which to compare floors said to be slippery.  He recorded the coefficients of friction between a number of floor surfaces (wet and dry) and a number of common shoe sole materials.

The dance floor in this case is of polished timber.   The plaintiff was wearing unremarkable leather shoes.   There is no suggestion of any spills on the floor, or of foreign material adhering to the shoes.   Both were dry.

Mr. Maddern examined the dance floor and ascertained the co-efficient of friction between it and a leather sole.   He has a standard rig consisting of a metal tube to the end of which discs of various shoe sole materials can be attached.   Thus the weight of the rig and the area of shoe sole in contact with a floor are constant.   He then drags the rig across the floor with a spring balance, thereby recording skid resistance.

His tests show this dance floor to be much more slippery than those he tested to get his base data.   He has tested many floors over the years.   He thought this was a particularly slippery one.   He proffered a number of calculations to indicate just how slippery, but accepted that his calculations were not intended to be exact.   He believed them more than sufficient to establish the general proposition that this was a very slippery floor.

That was the view of the plaintiff and of her son’s partner, Ms. Lange.   It was the view of the defendant’s manager - to the extent that she realised she had to do something about it.   I accept the evidence that the plaintiff’s fall was the first of which Ms. Cusick was aware.   I think she acted sensibly in arranging for the area to be carpeted.

There has been no dispute that the plaintiff was a person to whom the defendant owed a duty of care, nor that the possibility of such a fall was forseeable.   The only real dispute has been as to whether, in all the circumstances, the defendant was in breach of that duty - or whether it acted reasonably in awaiting delivery of the new carpet over a period of a few months.

In my view, there was at least one simple precaution which could, and should have been taken.   It was to put down a temporary runner over the trafficked area.   If, because it was only temporary, cost was a serious consideration, I believe a cheap runner would have sufficed.   If it had shown a tendency to curl at its edges (thereby creating a danger) it would have been simple to fasten it down with a strip of adhesive tape at each side.

The evidence does not establish whether the hotel’s own stock of spare carpet could have been utilised until the rest was delivered.   Insofar as there was fear that a cheap carpet might be a danger in a fire, I presume the hotel’s own carpet overcame that.   I repeat that I do not know whether the configuration of the spare carpet permitted that course.   If not, I still believe a cheap runner, adequate on a temporary basis, could have been acquired, would have prevented accidents like the plaintiff’s and could have been installed in such a way as not to pose other unreasonable dangers.  While I am not particularly critical of the defendant, I believe that, in the legal sense, it did not act reasonably in permitting what I have found to be a very slippery floor to be the principal passage for dinner patrons as they arrived and went to order their meals.

I am asked to find that the plaintiff  was guilty of contributory negligence.   It is not suggested that she ran, or walked in any way other than a normal way.  She was not affected by alcohol.   It is simply asserted that she should have, and did, recognise that floor was slippery and so should have walked more carefully.   I accept that she had a duty to take reasonable care for her own safety.   I do not believe it has been proved that she did not do so.   She walked where she was expected to - indeed had little realistic choice about that.   No one has suggested that she walked in any way that was not appropriate, beyond the bald assertion she should have been more careful.   Contributory negligence is not proved.   The plaintiff will have her damages in full.

The plaintiff is a lightly built person.   She has been vigorous and enjoyed such sports as tennis.   Her work as a nurse at the Loxton Hospital would have been demanding.   She led an active social life and involved herself in the community, where she is well respected.   Of direct relevance, I believe her to be a witness of truth and am comfortable in generally relying on her evidence.

In June 1985, while lifting a patient, she strained her neck and back, requiring a short period off work and chiropractic treatment.   This is not thought to have any particular relevance to later events.

In December 1986, she slipped and fell at work.   This precipitated pain in her back and down her legs.   Conservative treatment was followed by a laminectomy and in 1987, by fusion of the L5/S1 joint in 1988.   Two surgical devices called Knodt rods were used to lock her vertebrae in place while fusion occurred.   That operation was unusually successful.   It took a couple of years for her to reach her best state.   By then the fusion had long been solid.   Pain had gone and, albeit with the exercise of a little care, she was leading a virtually normal life.   She still refrained from heavy bending lifting and twisting.   Her family, particularly her daughter-in-law and her husband, helped with some aspects of housework - but she managed well.  She had been cleared to return to light work in 1987 but there was none and she could not keep up normal nursing duties.   She stopped nursing in 1987.   By 1991 she was walking 3 kilometres twice a day.

In 1988 her husband’s business fell on very hard times when a major customer went broke and did not pay for a large quantity of vines supplied to it.   He had to sell everything he could to meet a loan from his bank, including the equipment used in the business.   He survived, partly on unemployment relief.   He was largely resigned to retirement.    However, Southcorp Ltd (as it is now known) persuaded him to go back into business with an offer to finance him in setting up again and with large orders for vines.   Almost reluctantly he agreed - but it has turned out to be a profitable business which has quite changed their fortunes.

Up to this time the plaintiff had tried for a few weeks to pick grapes.   That had proved too much - and it is notoriously awkward, hard work.   She had assisted her husband at work at budding vines in the paddock.   He did the actual grafting after which she taped up the graft.   That was not heavy work, but it did involve a good deal of kneeling to work close to the ground.   She coped pretty well with that.   It was for a period of about 3 weeks.

The new business was started as a partnership with a root stock grower.   He was, in essence, to supply plant material and the plaintiff and her husband were to attend to processing and grafting it.   Each was to help the other in the other’s work.

Accordingly, the plaintiff was involved in sorting and bundling a large quantity of plant material to be grafted, and later with the process of grafting and packing it.   The grafting is done by a machine at bench height.   The operator sits, picks up from nearby the two pieces of wood to be grafted, holds them in the machine and presses a pedal to activate it.   The work is rapid and continuous.   The plaintiff would perform around 2,000 grafts per day.   She did four periods of about 2 hours with breaks for lunch etc.   She also did about 2 hours per day of other work cleaning, tidying and generally managing the operation.   This went on for 6 days per week during a season of approximately 6 months.

A difficulty with the assessment is that the enterprise was new and expanding.   The plaintiff had not worked at this level for a long time.   In 1993, she assisted in sorting and identifying rootstocks during July.   In August she and her husband did a few weeks grafting for a man in Mildura, in return for which he lent them his grafting machines.   She worked on them for about 4 or 5 months.

The first half of 1994 was mainly dealing with book work.   Again she helped in sorting and identifying material as it was collected in the field.   By September she was back on the grafting machine, working long hours.

Her fall was on 8 October 1994.   The medical evidence clearly establishes that most people with an L5/S1 fusion do not recover sufficiently to work so hard.   It had not been expected she would do so.   However, given the fact that she had managed it, there is no medical reason why she could not have expected to continue.  Nothing in her work, or her life generally, was inevitably going to lead to problems.   As against that, a variety of possible incidents, such as the fall on 8 October 1994 was capable of causing trouble such as she in fact suffered.   In short, I find it probable that she would have been fit to continue her work for a number of years, but that there was a substantial contingency that something not itself compensible might have occurred to end or limit it.   I will refer to this later, but it is against this background that I continue the narrative.

The plaintiff had some discomfort in the night.   She saw her G.P. a few days later.   She continued to work her usual long hours.   Her pain gradually increased.   After about a month she had to give up.   In my view she acted reasonably in doing so.

It was assumed that she had sustained some minor soft tissue injury.   It has never been thought that the L5/S1 fusion itself was compromised - it remains secure.  In November, injections of a local anaesthetic into the joint above were tried.   The first, into the facet joint, produced some relief, but a second, more precisely aligned with the top of one of the Knodt rods, produced almost instant relief from almost all pain.   Thus it was considered that that Knodt rod had come loose or had been compromised in some way.

The plaintiff hoped the relief would be lasting, but it was not.   She was reluctant to have the Knodt rod removed as she believed it contributed to the stability of the joint.   I infer that she was frightened of further back surgery generally.   The medical evidence leads me to conclude that the rods have no work to do once fusion is solid.   If left in place, they may or may not cause pain.   If not, there is no need to remove them.   If so, they can easily be removed with a quite minor incision.

The plaintiff’s pain became so bad that she agreed to have the rods removed.   That was done in June 1996.   It has cured the most acute pain, particularly that radiating down her legs.   However, she still has an almost continuous ache in her back.   She cannot sit still or stand for long.   She cannot walk far.   Probably this relates to damage in the facet joint which was not addressed by the removal of the Knodt rods.   I find that the fall caused the facet joint to become painful.

The L5/S1 joint is the most mobile in the lower back.   Fusing it casts an increased load on the joint above.   Fusing that might well resolve the present pain.   But that would only cast further strain on the joint above that - and so on.   The medical advice is against further fusion.

I accept the view that, after all this time, there is little prospect that the plaintiff’s back will improve.   She is stuck with it.   She will not return to the grafting machine, with its long periods of sitting.   She will not be able to resume the other moderate lifting, sorting, cleaning and sweeping she used to do.   She will remain capable of the book work, but will perform virtually no physical work for the business.   She will, with care, and slowly, perform most of her housework, but will need more assistance than she did before the fall. She will not return to long walks.   Nor will she dance or play tennis, though I think she was not going to do either to any extent anyway.   In everyday life, she will be restricted and usually in some pain.   She will need rests.   It will be a great inconvenience to a vigorous determined woman.

I have noted that she was born in 1933.   By 1994 she was 61.   How long would she have worked?   She had no particular plan of her own.   She certainly did not plan to stop at, say, 65.   She and her husband realised that, following the earlier disaster, they now had a chance to make a lot of money in a fairly short time if they worked hard.   Her husband, while not having a definite plan, was thinking in terms of continuing until the year 2000 (with the grafted stock from that year being sold the following year).   It is his view that the market for stock for new vineyards, while it cannot go on forever, is assured at least until then.   He will then be about 70.   They will then, all being well, have put enough money into superannuation to mean that they can live the rest of their lives in decent comfort and not on a pension.

This seems to me to be a reasonable basis for finding that it is unlikely that the plaintiff would have worked longer than the end of the year 2000.   I do not see her being interested in other independent employment.   Would she have lasted that long?   She will then be 67 and the work is hard.   All the medical evidence suggests that, subject to contingencies, she probably would.

It seems to me that all, or almost all, the contingencies are adverse.   This is a highly profitable business - I cannot see her having got more remunerative work elsewhere.   Nor was she going to be promoted within the business to a more lucrative position - she is a part owner.   She was, in my view, vulnerable to further injury.   However well the business is going at present, there must be a possibility of adversities, even over the relatively short time until the last stock is sold in 2001.   I shall calculate on the basis of the cost of replacing her labour and then deduct 30% to allow for these quite significant contingencies.

I deal first with damages for pain and suffering.   The plaintiff has been converted from a person who, by dint of luck and hard work, had achieved an amazingly good recovery from a spinal fusion, to one with the prospect of constant pain and limitation, unable to do what she sees as her share of the work in the business, or to run her home without help.   From soon after the fall, with a brief period of relief after the injections, and until June 1996 she was in frequent acute pain.   Thereafter the level has been much better, but still quite debilitating.

I assess her damages for pain and suffering at $45,000, of which I attribute $20,000 to the past and $25,000 to the future.

Past special damages are agreed at $4,204.45.

For the future, she will need more pain killers and anti inflamatories  than she was taking before the fall.   She will need to visit her G.P. to get scripts.   Accepting her counsel’s calculation, which I do, that, actuarially, comes to about $3,000.   Allowing for the use she was making of these medicines and services anyway, and also for the contingency that she might have needed more, I assess future special damages at $1,200.

She has needed assistance in her house and daily living in excess both of that which she received before the fall and of that which, within the ordinary vicissitudes of married life, she could expect without there being an entitlement to compensation.   She needed more help before the rods were removed.   Somewhat arbitrarily, I assess the help to that date as being 10 hours per week and since then 5 hours per week.   That help has been given partly by paid employees and partly by her family.   I put a value of $10 per hour on that labour.  From the fall to the removal of the rods was a period of about 96 weeks (X 10 hours X $10 = $9,600) and from then to judgment is a further 104 weeks (X 5 hours X $10 = $5,200).   Rounding these figures down for contingencies I allow $10,000 for part assistance.

For the future, the multiplier from Luntz is $669 X $50 p.w. = $33,450. The contingencies are greater - the period is longer, all is in the unknown future and the amount of help anyone needs as they get older increases.   I round that figure down to $15,000.

The plaintiff’s husband is plaintiff in the action in respect of his claim for loss of consortium.   In assessing that I must be careful not to double count for so much as represents his contribution of gratuitous services or for the cost of replacing her work in the business, for which I shall allow separately.   In respect of the other intangible diminution to the quality of the relationship between them, I allow $8,000.   He will have judgment separately for that amount.

This brings me to the claim for economic loss.   In a sense, her motivation and preparedness to work long hours and to do an odd assortment of jobs made her more valuable than an “off the shelf” replacement.   She had skills as a grafter, but they were skills readily taught to others.   She still does book work. She has, in her normal duties, been replaced by a series of employees.   Some have been faster than her at grafting and have had greater physical strength enabling them to do tasks she would not have done.   At least until the year 2000, there is no reason to think replacement labour will be hard to find.   I will start with the cost of replacement labour, but recognise those differences.   I must also discount for the contingency that she would for any other reason, have done none, or less, of that work.   It is a contingency which, having regard to her age is increasing and which, having regard to her pre-existing back condition, is greater than is often the case in these sorts of claims.

Two accountants, Messrs McPharlin and Laundy, have carefully examined the affairs of the business.   They agree in most respects - particularly on the measure of loss being the cost of replacement labour.   There are some differences in how they treat that loss.  Obviously the cost of that labour diminishes the profits of the business.   It happens to be a company, now with two directors and shareholders, though in early stages there were two other directors and shareholders - the “partners” who provided root stock and scion material.   Some profits are distributed to shareholders at ordinary rates of tax.   That is shared equally by the plaintiff and her husband.   Other profits are channelled into a superannuation fund at a far lower rate of tax (15%).  

I propose to assess the loss net of tax - so I must comment on the appropriate tax rate.  The plaintiffs had demonstrated an ability to live very cheaply after the failure of their business and for a few years as they paid back the bank, etc.   The current business has always been seen as relatively short term, with the aim of putting as much as possible into superannuation for the future.   They are living comfortably on their present drawings.   In my view additional profits, had they been made, would have gone into the superannuation fund.   I will therefore deduct 15% from the gross cost of replacement labour.

Following on that finding, I note that interest on past loss should be calculated to equate with what would have been earned in the superannuation fund - rather than on some hypothetical higher rate of earning if re-invested in the business.   This is not a business with unlimited scope for expansion.   It grows and sells plants to order.   It is flat out.   I do not think the lost profits would have been so re-invested.   Indeed, if that is likely, why has not more money been diverted from the superannuation fund?

On this basis the figure for past loss is about $28,603.06.   Of course it assumes that the plaintiff would have worked throughout at her usual rate.   Many contingencies which might have affected the past are now able to be eliminated.   The business has not failed.   The plaintiff has not contracted some other debilitating disease - and so on.   Those relating to her capacity to do the work remain.   They relate principally not to degeneration, but to the risk that in the course of work there would have been an incident of some sort to precipitate problems.   These are risks she has escaped through not working.   Even then, if it had been a work incident, I expect she would have been entitled to compensation of some sort.   I think I will be fair if I round the past loss down to $23,500.  

For the future, we are looking at a period of two years only.   The “raw” figure, after 15% tax for future loss is calculated at $20,979.   There are more contingencies to be allowed for in an assessment of the future.   I round down future loss to $10,000.   I note that I consider only 2 years, as her labour would not have been required to assist in grafting in 2001;  all that will happen in 2001 is to await the growth of stock and then to pull it and sell it.   There will be no grafting.   I acknowledge that the plaintiff is the sort of person who would not have been idle at that time - but I am not satisfied that the company will employ outside labour to overcome that.

I note that the calculation of past loss is expressed to include loss of the income which the superannuation fund might have been expected to generate or that lost investment in it.   Accordingly I do not allow further interest on it.

I summarise:

1)     Mr. Shephard

Loss of consortium  $8,000.00
Interest at 5% X 4 years ÷ 2  $ 800.00
  $8,800.00

2)   

Mrs. Shephard

Pain and suffering

Past  $20,000.00

Future  $25,000.00

Special Damages

Past  $ 4,204.45

Future  $ 1,200.00

Assistance

Past  $10,000.00

Future  $15,000.00

Economic

Past  $23,500.00

Future  $10,000.00

Interest
         On past loss totalling $34,204.45

@ 5% X 4 years ÷ 2  $  3,420.45

TOTAL  $112,324.90

Mr. Shephard will have judgment for $8,800.

Mrs. Shephard will have judgment for $112,324.90

I will hear the parties on costs.  If, for any reason the parties prefer to split the entitlement in respect of Mrs. Shephard’s lost earning capacity, either with her husband, or with their company, I am prepared to vary the judgment to reflect that.