Shire of Manjimup v Bill
[2000] WASCA 256
•12 SEPTEMBER 2000
SHIRE OF MANJIMUP -v- BILL [2000] WASCA 256
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 256 | |
| THE FULL COURT (WA) | 12/09/2000 | ||
| Case No: | FUL:190/1999 | 14 AUGUST 2000 | |
| Coram: | IPP J PARKER J MILLER J | 14/08/00 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Cross-appeal upheld | ||
| PDF Version |
| Parties: | SHIRE OF MANJIMUP LINDA ANNE BILL |
Catchwords: | Negligence Occupier's liability Open, empty septic tank in parklands controlled by appellant Whether finding of breach of duty was supported by evidence Contributory negligence Turns on own facts Damages Appeal and cross-appeal Whether award for past and future earnings loss was manifestly excessive Contributory negligence Sufficiency of general damages Turns on own facts |
Legislation: | Occupiers' Liability Act 1985 |
Case References: | Nil Bartels v Bankstown City Council [1999] NSWCA 129 Giorginis v Kastrati (1988) 49 SASR 371 Paul v Rendell (1981) 55 ALJR 371 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 Stannus v Graham (1994) A Tort Rep 81-293 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : SHIRE OF MANJIMUP -v- BILL [2000] WASCA 256 CORAM : IPP J
- PARKER J
MILLER J
- Appellant
AND
LINDA ANNE BILL
Respondent
Catchwords:
Negligence - Occupier's liability - Open, empty septic tank in parklands controlled by appellant - Whether finding of breach of duty was supported by evidence - Contributory negligence - Turns on own facts
Damages - Appeal and cross-appeal - Whether award for past and future earnings loss was manifestly excessive - Contributory negligence - Sufficiency of general damages - Turns on own facts
(Page 2)
Legislation:
Occupiers' Liability Act 1985
Result:
Appeal dismissed
Cross-appeal upheld
Representation:
Counsel:
Appellant : Mr J Eller
Respondent : Mr B G Bradley
Solicitors:
Appellant : John Eller
Respondent : Moss Bradley
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bartels v Bankstown City Council [1999] NSWCA 129
Giorginis v Kastrati (1988) 49 SASR 371
Paul v Rendell (1981) 55 ALJR 371
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Stannus v Graham (1994) A Tort Rep 81-293
(Page 3)
1 IPP J: At the conclusion of argument in this matter the Court unanimously dismissed the appellant's appeal and upheld the respondent's cross-appeal. The learned trial Judge's finding that the respondent was guilty of contributory negligence was set aside, the amount of general damages awarded to the respondent was increased by $5,000 to $15,000, and judgment was ordered to be entered in favour of the respondent in the sum of $33,518.02. The Court indicated that it would deliver the reasons for this decision at a later date. I set out below my reasons for joining in this decision.
2 The appeal concerned a trial in the District Court in which the respondent claimed damages for personal injuries sustained in the early hours of 31 May 1998 when she fell into an empty, disused sewerage tank in park grounds near the Imperial football oval in Manjimup. The tank had been covered for a lengthy period, but at the time of the accident the lid had been removed and the tank was open.
3 Over the long weekend commencing Saturday, 30 May 1998, a well-known country and western singer held a well-publicised event in the Manjimup Hotel. Between 10,000 and 15,000 visitors were expected to be attracted to the town and this indeed occurred.
4 On the evening of Saturday 30 May 1998, the respondent, a 36-year-old single mother of three children, drove to the house of a friend with whom she planned to attend the music concert. On finding that her friend was unwell the respondent left her car there and walked alone to the hotel, which was between 1 kilometre and 1.5 kilometres distant. She took a short-cut along a path that, for a distance, ran alongside the eastern and northern boundaries of the football oval (the eastern boundary being the long boundary). East of the path was a grassed, park area, and in the north-eastern corner of this grassed area was an infant health centre. The football oval, the path, and the grassed area formed a single, general recreational area for public use. It was common cause that this area was under the control of the appellant.
5 The entire area was surrounded by a fence, but the gates where the respondent entered the area and exited from it were not closed. Indeed, the policy of the appellant was to leave those gates open, and the path was frequently used by members of the public as a short-cut.
6 The respondent arrived at the hotel at about 9.30 pm. She met up with some female friends and, on the learned Judge's finding, she drank three alcoholic drinks until she left the hotel at about 1 am. She intended
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- to return to the house of her friend where she had left her car, and proceeded along the same path she had taken when walking to the hotel. She was accompanied by a young man who was a friend of one of her daughters. They did not have a torch and the area which the path traversed was in darkness.
7 When the respondent was at a point about midway along the eastern boundary of the football oval, she felt the need to relieve herself. She asked the young man to wait and she walked off the path in an easterly direction towards a bush, the outline of which she could see. She intended to relieve herself behind the bush. Unbeknown to the respondent, the disused, empty, uncovered sewerage tank was located behind the bush. In the darkness she did not see the tank at all. She fell into it and injured herself.
8 The respondent brought proceedings against the appellant, alleging that the appellant and its servants and agents were negligent and in breach of the Occupiers' Liability Act 1985 in failing to cover or fill in the sewerage tank, failing to cordon off or otherwise barricade the tank, failing to illuminate the area of the tank, failing to provide any warning of its existence, and failing to inspect or adequately inspect the area of the football oval in which the tank was located. The case of the respondent, in essence, was that the empty tank constituted a hidden danger and the appellant had breached the Occupiers' Liability Act 1985 in failing to take appropriate steps to remove or warn of the danger.
9 The learned trial Judge upheld the respondent's claim but found her to have been guilty of contributory negligence to the extent of 25 per cent. His Honour determined damages in the overall sum of $28,518.02. This included an award of $10,000 for general damages, $6,672 for loss of past economic capacity and $7,228 for loss of future economic capacity.
10 The appellant appealed against the learned Judge's findings on the following grounds:
1. The learned Judge wrongly found that the appellant breached its duty of care pursuant to the Occupiers' Liability Act.
2. The learned Judge should have found that the degree of contributory negligence on the part of the respondent was greater than 25 per cent.
3. The award of $6,672 for past loss of earning capacity and $7,228 for future loss of earning capacity was manifestly excessive.
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11 The respondent cross-appealed, contending that she should not have been found guilty of contributory negligence and contending that the award of $10,000 made by the learned Judge in respect of general damages was too low.
12 In submitting that the learned Judge wrongly found that it had breached the Occupiers' Liability Act, the appellant made four points:
(a) The evidence established that the appellant had a sound practice for maintenance and inspection of its park.
(b) The evidence of Mr Vellios should have been accepted.
(c) There was no evidence on the part of the respondent to establish or corroborate that the appellant knew or ought to have known that the tank was open at the relevant time.
(d) The learned Judge erred in accepting the evidence of Mr Lenegan when no order to adduce expert evidence had been made.
13 Any examination of the issues raised by the appeal on the merits has to have regard to the nature of the ground where the accident occurred. I have given a brief description of the area traversed by the respondent immediately prior to falling into the tank. I would add that the grounds as a whole were well maintained and, from photographs that were tendered in evidence, had a well manicured and attractive appearance. Apart from the bush (behind which the sewerage tank was sited), there were a few trees sparsely dotted about. The general impression is one of a park-like area, well-suited for general recreational use by the public. Generally, there is nothing suggestive of the presence of a danger to any person walking in the vicinity. The entire area being as it were a park for the benefit of the local inhabitants, it was readily foreseeable that persons would indeed walk in the area.
14 According to Mr Bailey, the parks supervisor of the appellant, a contractor maintained the area "52 weeks of the year". The contractor's task was to pick up rubbish, whipper-snip, prune trees and mow the football oval. On Thursday 28 May 1998, four days before the accident, workers were sent to attend to the oval and surrounds. With respect to the area near the infant health centre where the respondent fell into the tank, rubbish was removed, trees were pruned, and the area was tidied up with a whipper-snipper. Undoubtedly, as at 28 May 1998, the area would have presented itself as a clean, tidy, well-maintained and attractive recreational centre which the respondent expected would be used by members of the public.
(Page 6)
15 On the evidence of Mr Bailey, the appellant indeed had a sound practice for maintenance and inspection of its park. But that does not answer the particulars of negligence relied on by the respondent and the evidence presented by her. The case of the respondent was that the appellant had failed to take due care by neglecting to cover the sewerage tank, or by failing to prevent access to it, or by failing to warn of its presence. The existence of an adequate system of maintenance and inspection does not meet a cause of action in these terms.
16 The respondent called an experienced licensed plumber, Mr Lenegan, to testify. He gave evidence to the effect that the tank would have had four cement lids, each weighing 40 to 50 kilograms. He testified that the lids in question were not designed to take heavy weight. Nevertheless, the removal of a lid would normally require a crowbar or similar lever, and the removal of the lid would have been a difficult exercise to perform. The photographs showed that the tank was empty and Mr Lenegan stated that it must have been pumped out following decommissioning.
17 Mr Lenegan stated, on examination of the photographs that were tendered, that in the bottom of the tank there were broken pieces of cement that seemed to be parts of two of the lids. One lid was on the ground near the opening, apparently upside down, and the other lid was still in place but covered with a pile of soil and rubble. Mr Lenegan said that the broken lids in the bottom of the tank did not look as if they had broken recently. As his Honour explained, Mr Lenegan based this view on the lack of light colouring of the edges of the pieces of broken cement that once comprised the lid. Mr Lenegan said that had the concrete been recently broken, the fractured edges would be much lighter in colour than the other parts of the lids. He said that, because there was no or little difference in the colouring, it was likely that the lids had been broken for a significant period of time. The learned Judge referred to this evidence and observed that:
"It seems to me, on an examination of the photographs … that there is indeed very little difference in the colouring between the edges of fractured concrete and the edges of slab that would have been exposed to the weather. Of course those pieces of concrete that are laying on end, or in what might be called a vertical position, would be exposed to rain if the hole had been uncovered for any significant time which might have had a washing effect. Be that as it may however Mr Lenegan is a very experienced plumber who, I surmise, has seen pieces of
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- cement broken on many occasions and his view was that the pieces had been laying in the hole for a considerable time having regard to the photographs. That observation is not one which figures greatly in my deliberations but I think it is a valid observation."
18 Counsel for the appellant challenged the evidence of Mr Lenegan on the grounds that it was, in essence, expert testimony and no expert notice had been given. I accept that the evidence in question was indeed expert testimony. The point, however, is that no objection was taken to Mr Lenegan's testimony on this ground at the trial. The evidence was led without any objection whatever on the part of the appellant. It is now too late to raise an objection of that kind. Counsel for the appellant did not otherwise challenge the findings to which the learned Judge came based on the evidence of Mr Lenegan and, in any event, in my view those findings were justified.
19 Mr Vellios, a worker employed by the appellant, had on 28 May 1998 been at the ground pruning, mowing and whipper-snipping. Mr Vellios testified that there was no hole to be seen on that date and "everything was covered". Mr Vellios' evidence was not accepted by the learned Judge. His Honour relied on general credibility considerations in coming to this conclusion, as well as the evidence of Mr Lenegan and the photographs which indicated that it was unlikely that the tank was opened between 28 May and 1 June 1998, the latter being the date on which the photographs were taken. The learned Judge noted:
"To start with the pile of soil surrounding the air vent and covering the one lid that remains in place has grass growing through it. Further it can be seen that the grass around the pile of soil and stones is longer than the mown grass nearby.
An examination of the edges of the tank, in particular the tops of the bricks that comprised the walls, reveals the presence of debris of various kinds which I think would be unlikely to be present if the tank was freshly opened."
- Accordingly, his Honour held that the tank was open when Mr Vellios was working in the vicinity on 28 May. His Honour concluded:
"Given the tools required to open up the tank and the fact that the tank must have been pumped out when it was decommissioned, I think it more likely than not that it was opened by a Shire worker or workers unknown. Be all that as it
(Page 8)
- may I am satisfied that the tank was open for a period significantly longer than two days. The [appellant] should have known this."
20 Additionally, the learned Judge stated:
"Further, having regard to Mr Lenegan's evidence, I think the tank should have been filled in with sand or soil when it was decommissioned. More so if the lids were simply replaced without being cemented following the pumping out of the tank. As to this, the evidence is silent but in either scenario the [appellant] seems to me to be at fault."
21 In my opinion, these findings are not open to challenge. They were perfectly justified on the evidence. The evidence giving rise to the finding that the tank was uncovered on 28 May 1998 when Mr Vellios was busy on the scene disposes of the appellant's argument that there was no evidence to "establish or corroborate that the appellant knew or ought to have known that the tank was open at the relevant time".
22 Having held that the appellant should have known about the exposed tank and should have taken action to remove the danger it represented, the learned Judge found that the respondent had made out her allegation that the appellant had been negligent in failing to take reasonable steps for her safety. The learned Judge said:
"I base that view upon my finding that the [appellant] knew or ought to have known about the uncovered tank. Were that not to be my view, however, I think that there is a parallel argument that the [appellant], in decommissioning the tank (as I surmise it must have done at some unknown time), should have covered it more securely or filled it in … "
23 In my opinion, on the basis of the factual findings made by the learned Judge, and in particular the finding that the tank was open on 28 May 1998, the learned Judge's conclusions are unexceptionable. In my opinion, therefore, the appellant's argument that the learned Judge erred in finding that it breached the Occupiers' Liability Act fails.
24 I turn now to the appellant's contention that the learned Judge should have found the respondent to have been guilty of contributory negligence to a substantially greater degree than the 25 per cent found by his Honour, and to the cross-appeal by the respondent by which she argued that the
(Page 9)
- learned Judge erred in finding that she was guilty of contributory negligence at all.
25 The particulars of contributory negligence asserted that the respondent failed to keep a proper look-out and failed to pay sufficient attention to where she was walking, she being in a state of "acute intoxication at the time".
26 As regards the submission that the respondent was intoxicated, the learned Judge accepted her evidence that she had had only three alcoholic drinks during the evening in question. The learned Judge said that he suspected that "she was emboldened by the modest amount of alcohol which she had consumed", but he did not consider that she was intoxicated. These findings of primary fact were open to his Honour and there is no basis for challenging them.
27 In discussing the question of contributory negligence, the learned Judge said:
"The [respondent] went to relieve herself behind a bush in the dark when she could not see properly where she was going. It seems to me that she could not reasonably have expected there to be a deep, unmarked, uncovered hole of the kind represented by the disused septic tank. This was a danger which was hidden in all the circumstances and not one, I think, the [respondent] should have had in mind."
28 I agree entirely with these views. His Honour proceeded, however:
"I must say that given the difficulties with seeing where she was going and appreciating, as she should have done, that she could not see very well, the [respondent] should have been proceeding cautiously. When all is said and done the tank was behind a bush and off the beaten track near a boundary fence.
In my view the [respondent] really should have been more careful wandering as she was into a dark unknown area without light. I think she has been careless for her own safety."
29 With respect to his Honour, the view that the respondent was careless for her own safety cannot be sustained in the light of the earlier finding that the tank was "a danger which was hidden … and not one … the [respondent] should have had in mind". While the area was dark, it was not entirely unknown. It was part of the general recreational area. The
(Page 10)
- respondent had walked past it many times. It was a well-tended and manicured grassed area – parklands intended for the use of the local citizens. I accept that the respondent should have proceeded cautiously, but there is nothing to suggest that she did not. The tank was a hidden trap, and there is nothing to suggest that had she exercised even more caution than she did the accident would not have occurred. In my view, there was no contributory negligence whatsoever on the part of the respondent.
30 I turn now to the question of damages. The notice of appeal challenged the award for past loss of earning capacity of $6,672 and future loss of earning capacity in the amount of $7,228. The respondent had not worked for 11 years until 27 April 1999. In that 11-year period she cared for her three children, who, at the date of the trial, were aged 13, 11 and 10 years. From 27 April 1999 to 31 May 1999, the respondent worked as a shop assistant at $278 net per week. This was after the accident but prior to the trial, which commenced on 18 October 1999.
31 The respondent claimed past economic loss from 1 June 1999 to 18 October 1999. She testified that she was unable to continue with her employment because of her symptoms from her injury. This evidence was accepted by his Honour, who noted that the respondent's evidence in this respect was not seriously challenged by the appellant. This finding is of primary fact, and in my view it cannot now be questioned.
32 The appellant argued that the respondent would not have continued working for any length of time because of the need to care for her children. This proposition was put to the respondent in evidence and denied by her. His Honour accepted that denial. In any event, the amount claimed for future loss of earnings is only based on 26 weeks' loss of employment. In the circumstances, having regard to the facts found by the learned Judge, the claim for future loss of earning capacity was not unreasonable. Accordingly, in my view, there is no substance in the appellant's contentions in regard to these issues.
33 The learned Judge awarded the respondent $10,000 in respect of general damages, and the respondent cross-appealed in this regard. In consequence of her injuries, the respondent suffered a significant injury to the lower lobe of her left kidney, which resulted in bleeding (to the extent that a blood transfusion was required), and hospitalisation, firstly at the Manjimup Hospital and then at Royal Perth Hospital. She also sustained a fracture to her coccyx, soft-tissue injuries and bruising to the low back and her left side, abdominal injuries and an injury to her spleen. She
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- suffered severe pain for several days and will continue to have pain in her left side for some time, although, in the long term, it should stabilise. The injury to her kidney was described by a urologist as "significant renal trauma with a rupture of the lower pole of her kidney causing a retroperitoneal haematoma". According to the urologist, this injury was consistent with the continuing pain the respondent experienced in the kidney area, but he was optimistic about the future. Prior to the trial there was still pain from the coccyx, and various means were recommended for alleviating this, including local anaesthetic and steroids. An orthopaedic surgeon recommended an excision of part of the coccyx. In his opinion, the surgery was necessary, as without it the bony prominence of the coccyx would continue to interfere significantly with her life. The consensus of medical opinion was that her discomfort at the time of the trial would stabilise and, while she might have intermittent minor problems in the future, there would be "nothing that would be debilitating" in the long term.
34 It is apparent from all the medical evidence that the respondent experienced serious injuries in circumstances that must have been terrifying. For some period after the accident she suffered extreme pain, and pain endured thereafter for many months and she continued to have painful episodes at the time of the trial. With her periods of hospitalisation and general pain and discomfort she was disabled significantly for many months. She is likely to be hospitalised again. In the circumstances, I considered that the award of $10,000 was too low and should be increased to $15,000. I did not regard the increase of $5,000 as "tinkering", as it represented an increase of 50 per cent over the award made by the learned Judge.
35 PARKER J: I agree with the orders proposed by Justice Ipp and with his reasons.
36 MILLER J: I agree with the reasons delivered by Ipp J and I have nothing to add.
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