Smith v The Housing Authority - [2008] WADC 171

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SMITH -v- THE HOUSING AUTHORITY [2008] WADC 171

CORAM: KEEN DCJ

HEARD: 23 OCTOBER 2008

DELIVERED : 28 NOVEMBER 2008

FILE NO/S: CIV 1997 of 2007

BETWEEN: IRENE SMITH
Plaintiff
AND
THE HOUSING AUTHORITY
Defendant

Catchwords:

Personal injuries - Negligence - Occupiers liability - Duty of care - Risk of injury and response thereto - Application of Civil Liability Act

Legislation:

Civil Liability Act 2002
Occupiers Liability Act 1985

Result:

Plaintiff successful - damages awarded

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Trewin Norman & Co
Defendant: Downings Legal

Case(s) referred to in judgment(s):

Road & Traffic Authority of New South Wales v Dederer [2007] HCA 42
Wyong Shire Council v Shirt (1980) 146 CLR 40

KEEN DCJ: The plaintiff is a widow who was born on 28 December 1933.
The plaintiff resides at Unit 1, 7 Heyshott Road, Balga which she rents from the defendant.
On 26 September 2006 when she was aged 72 she sustained injury when she fell in the rear garden of the units of which Unit 1 forms part.
The evidence revealed that there were 16 units in the complex of units which were all occupied by tenants all in excess of 55 years old.
The plaintiff gave evidence that she had lived in her unit for some 13 years.
Tendered in evidence was a plan of Units 1 to 6 (Exhibit 2) which shows the layout of the units and a garden area at the rear of the units in which there is a grassed area and washing lines.
A series of 17 photographs were also produced and became Exhibit 3.
In her evidence the plaintiff identified that photographs number 12 and 13 in the bundle showed the back lawn at the premises.
The plaintiff said that it was on that back lawn where she fell.
The plaintiff gave evidence that she was about to go to her club on the day in question when her son telephoned and asked her to go and see another resident at the units, namely Phyllis who lived at number 10 to advise her that he could not come to the premises that day to do certain work for her.
The plaintiff said that she went to see Phyllis. She said that "time was getting on" by which I understood her to mean that it was time for her to leave to go to her club.
She said that she walked from Phyllis' unit, around the other units and past the washing lines. She said she did not use that path often.
She then said that she crossed the lawn and as she did so her left ankle went down. She fell to the ground. She had her mobile phone with her and called her son.
The plaintiff was taken to photograph number 13 and asked if she could indicate where it was that she fell. She said that as far as she could remember it was not shown on photograph number 13. She was then taken to photograph 12 and asked if she could identify on that plan where she fell. She indicated the position by placing a cross on that plan. That cross is situated approximately in the centre of the lawn and at about 3 centimetres from the left-hand edge of the photograph.
She said that there was a hole in the lawn because she had to bring her foot out of that hole.
The plaintiff was taken to hospital and whilst in hospital she thought that where she had fallen was where a bird bath had been on the lawn. She said that she had seen a previous tenant of Unit 3 put a bird bath in the lawn and plant plants around it.
Under cross-examination the plaintiff said that she was rarely in her unit as she went out a lot. She was a member of a country and western club at Morley and also a bowling club at Nollamara and the Balga Autumn Club.
The plaintiff gave evidence about an accident that she had had in 2002 or 2003 when she fell and fractured her right upper leg into which plates and pins were inserted. She said that after that injury she came good and was not unsteady on her feet.
The plaintiff also said that she had trouble with her knees and had knee replacements bilaterally some eight years ago. However she denied having problems with the hips or legs on the day in question and said in re‑examination that when she does get problems she would be sore and get pain.
When cross-examined about the bird bath she recalled it being installed in the same year as her accident. She recalled laughing and joking with other residents about the tenant, Esther, digging a little hole and putting plants around it. She could not recall when the bird bath was taken away.
The plaintiff said that before the accident she did her own washing. She had access to the clothes line at the rear and she would walk around the lawn on the path to get to the clothes line. She did her washing three times a week. In re‑examination she identified the line that was allocated to her as being the left-hand of the five clothes lines. She did not go over the grass to get to the clothes line.
She was re-examined about her mobility as she had had bilateral knee replacements. She volunteered that she was good on her feet and that on the day of the accident she was practically running because she wanted to get to her unit to get to her club. She modified that statement by saying that she was walking quickly.
Christine Hortin lives at Unit 3 which is shown on Exhibit 2. She came to the units in about June 2006.
She knows the plaintiff and described her as a friend.
Ms Hortin was taken to Exhibit 3 and in particular photograph 13. She identified the back door of her unit by a cross on the photograph which is to the right-hand side of the photograph and in the approximate position where a white box can be seen.
Also in relation to that photograph she said that when she had moved into her unit she noticed an indentation in the lawn area opposite her back door. She described it as being approximately 4 centimetres deep, circular in shape and about the size of a saucer – 6 to 8 centimetres. She said it was twice as wide as it was deep.
She identified the position of this hole as being in the grass in approximately the centre of the grass and in a line with the path from her back door. She marked the position on photograph 13.
At the material time, that is to say immediately after the plaintiff's accident, she looked at the depression in the ground and said that it was rather sandy and straggly.
She further described the hole by saying that it looked as if someone had planted something in that area and she described it extending beyond the saucer size to about 24 centimetres across. She described it as a mixture of lawn and sand and very uneven.
Under cross-examination she said that the hole was straight out from the back door of her unit. Since the accident it had not been filled. Grass had continued to grow over it. She walked past the hole to access the washing lines. She observed this depression prior to the plaintiff's accident and made a point of observing it so that she knew where it was.
Evidence was led from the plaintiff's son Anthony Derek Smith. He received a call from his mother on 26 September 2006 that she had fallen and he rushed to her aid. He went out to the back garden area and saw her laying on the lawn. He said initially that he looked down and saw that she was right on top of a hole.
He described the hole as a circle with a diameter of about 2 feet and at its deepest about 4 centimetres. He initially described it as being at its deepest at its sides, that is to say around its circumference.
His mother was right by the hole.
He gave evidence that he and his brother took the photographs in Exhibit 3 in early November 2006. He marked a number of the photographs. Photograph number 1 he marked to show the centre and the perimeter of the hole. He described that photograph as showing more grass in the area than there had been in September 2006.
He also marked photographs 2, 3, 4 and 5 with a cross to show where he said the centre of the hole was.
Mr Smith was also taken to photograph number 13 and asked to mark on that photograph where the hole was and he marked it again approximately in the centre of the lawn area and on a line from the path leading to Ms Hortin's back door. It was in almost the same position as that marked by Ms Hortin.
He was also taken to photographs numbered 14, 15, 16 and 17. He described taking measurements of the length of the hole and the photographs show a tape showing the width of the hole taken in two directions. The photographs also show that a spirit level has been placed on the ground with a measurement taken to demonstrate the depth of the hole. He described that depth as being approximately 1 inch. He said that in the September it seemed to be a little deeper but he did not then test it. He said that between the September and November the grass had grown into the hole and the sides had been squashed down.
Under cross-examination Mr Smith said that he saw the hole in the ground when he tried to lift his mother off the ground. He said that it was clear and obvious. Under cross-examination he described it as being 2 to 2½ inches deep and over a 2 foot area.
It was put to him that it was a depression rather than a hole and he agreed, although he did say that the person who had put the bird bath in place had dug a hole for the bird bath. He would visit his mother almost every day and he had seen the bird bath in the garden in the past and the plantings around it. He agreed that none of the photographs showed any area as having been dug out but commented that the grass was growing back. Nevertheless the photographs showed the lawn as it was when his mother fell.
It was put to him that no part could be described as a hole and he answered that you could see the outline.
It was under cross-examination that he said that it was in the middle of the hole that it was approximately 1 inch deep.
Mr Smith was taken to where his mother indicated she had fallen and he said that that was not the place where the depression was.
When questioned about how the accident occurred he said that he would have thought that she had gone down into the hole.
The following day at hospital he spoke to his mother about the bird bath. He commented "Whoever moved it should be shot".
He agreed that he was expressing an opinion as to what had caused his mother to fall and he formed that opinion by where she was. Again he thought that her foot had gone down into the depression.
The plaintiff also called Mr Peter John Waterson. Mr Waterson is one of the proprietors of Display Lawnmowing Services. He produced a contract he has with the Department of Housing and Works in order to carry out lawnmowing services. That contract and its specification became Exhibit 4.
Under that contract Mr Waterson would cut the grass at 7 Heyshott Road. He was familiar with the premises.
He had seven employees and the cutting was done at intervals – three weekly in the summer and four weekly in the winter.
He said that between June and September 2006 he would have done some mowing at the premises but not all of it.
He said that the grass in this area would be cut by using a cylinder mower and a brushcutter.
He said that if there was nothing to mow then it would be tidied up with a brushcutter.
Mr Waterson was taken to the photographs and in particular photograph number 12 and asked about the condition of the lawn. He said that it was recovering from a dry period. There were brown patches throughout the lawn.
He was taken to photograph number 14 and he noted that the lawn had browned off and weeds were protruding. He described the lawn as recovering; just coming out of its dormancy. He said that at that time the winters had been dry and a lot of lawns had shut down; there was nothing on them. They started to green up when the reticulation was turned on.
Under examination-in-chief he said that under his contract he would have to report to the defendant on a number of matters including things like abandoned vehicles on grassed areas, broken lighting and the like. Under cross‑examination he was taken to the contract and in particular cl 1.14.1.1 of the specification which provides "[t]he Contractor is responsible for notifying the Estate Manager of any problem identified which requires work or attention outside the terms of this contract". He said that as far as he was concerned that related to if he saw something broken like a light or if, for example, Telstra had dug up the ground and left it uneven or there were abandoned cars over grassed areas. It was then that he would have to notify the defendant.
No evidence was called by the defence in relation to matters going to liability.

The injuries

The plaintiff said that prior to the accident she had had no problems with her left arm or hand. This is her dominant side.
She said that immediately she fell the back of her hand and her wrist started to swell.
Her son took her to the doctor. She was sent for x-rays and then taken to Joondalup hospital. At the hospital she underwent surgery on her left arm and pins were inserted in her hand. She was in hospital for some three days. She said that she was in quite a bit of pain after the operation.
She was placed in plaster to her elbow for some six weeks.
She could not do anything for herself and she stayed with her son and daughter-in-law.
Her hand swelled up and her fingers and the thumb were swollen. The hospital removed the plaster and some six weeks after the plaster was removed the pins were removed.
She went for physiotherapy for a period after the accident.
She said that since then the injury has been painful. When she moves her wrist she gets a sharp pain.
She has difficulty raising her left arm and gets pain in the arm.
For the last two years she has been unable to play carpet bowls which she had previously enjoyed and played. She cannot do her floors at her house but she does do her dusting.
One matter that is of distress to her is that she cannot wear rings on her wedding finger.
The plaintiff said that she has no strength in her hand and indeed in recent times has scalded herself by a cup of tea slipping out of her left hand.
She cannot write properly and has to use her right hand on occasions.
She takes tablets for the pain. She takes Tramal in the morning and night and Panamax during the day. She also takes Serepax to help her sleep but admitted that she had been taking this since her husband passed away and before this accident.
Her evidence was that she spends approximately $10 per month on these medications other than Serepax.
The plaintiff produced in evidence the evidence of Dr Jack Edelman which was taken de bene esse on 13 October 2008 together with his report of 3 August 2007 which became Exhibit 1.
In addition the plaintiff produced a number of medical reports. These were produced by consent without the doctors being called and comprised those of Dr Tan being undated (Exhibit 5), Dr Wee dated 20 September 2007 (Exhibit 6), Dr Chee Meng Chang dated 12 December 2007 and 16 April 2008 (Exhibits 7A and 7B) and a radiology report of Dr Boeddinghaus dated 3 January 2007.
Dr Edelman, at his examination, produced his report dated 3 August 2007.
Dr Edelman had seen the plaintiff on that day and noted the history. On examination he said that she still had significant symptoms in the wrist with swelling and the wrist was painful and movements difficult. The plaintiff had lost strength in the wrist and activities caused pain.
He also noted that she had injured her left shoulder and had pain on abduction and internal rotation of her shoulder and therefore most activities were difficult for her.
Further on examination he noted that the plaintiff had lost movement in the wrist especially in flexion. In addition the fourth and fifth fingers were painful with movements.
He noted that x-rays of the wrist showed significant osteoarthritis having developed. He described the plaintiff's problems as due to the fall that she sustained.
Under examination he said the prognosis for the wrist injury was that it would continue to give her problems.
Under cross-examination he agreed that she probably already had pre‑existing arthritis in the hand which was age related. But as to whether or not she was compromised, he noted that she was fully independent before the accident and now she was not.
The undated report of Dr Michael Tan reveals that he first saw the plaintiff on 16 October 2006 (she having previously seen a Dr Murphy at the practice on 4 October 2006). At this stage her left forearm was in a back slab, the fracture having been treated at the Joondalup Health Campus. He treated her by prescribing analgesics being Tramal, Panamax and later on 27 November 2006, because her pain in the wrist and shoulder was severe, he prescribed Panadeine Forte.
By 27 November 2006 the plaintiff had been to see a physiotherapist and the doctor noted that there was no tenderness around the left wrist. However, he noted that as a left-handed person she still found it awkward to sign.
By 19 December 2006 physio had ceased. The plaintiff had complained that her left shoulder area had been hurting and she still did not have strength in her left wrist and could not use it as prior to her fall. The doctor continued to treat her with Panamax for her pain.
On 9 January 2007 he noted that the plaintiff had been depressed for a few weeks, that this was especially after she had heard that her sister‑in‑law had died. He noted that before her fall the fingers of her left hand as well as her left thumb were never sore but now the left hand and left ring finger hurt more when she did things. The doctor noted "but her movements are reasonably good and not too painful. Her left thumb looks swollen and palpable osteophytes. Was able to knit pre the fall. Now cannot as painful thumb".
The doctor noted that the plaintiff did not want to see anyone regarding her left shoulder.
Dr Tan last saw the plaintiff on 12 February 2007 and noted that her left wrist was not better and symptoms seemed to be worse. The wrist seemed to be swollen as was the thumb and there were reduced movements. He felt that she should see a specialist as the symptoms in the left wrist, thumb and left shoulder were quite severe and may become worse in the not too distant future.
Dr Wee gave his reports based upon notes written by Dr Ho at the Joondalup Health Campus following the plaintiff's presentation to the emergency department on 26 September 2006. He noted that x-ray revealed a left Colles' fracture which was angulated. The plaintiff was referred to the orthopaedic team for an operation and manipulation occurred under anaesthesia and K wires were inserted into her left wrist.
Dr Chang in the report of 12 December 2007 noted that the doctor had seen the plaintiff on 7 December 2007 accompanied by her son. The history obtained was that the plaintiff was walking in a common area at her unit. The area was grassed. Previously a bird bath had been installed into the ground but had been removed and the hole not filled in. It had become overgrown with grass and she stepped into the hole, fell and landed on her outstretched left hand injuring her left wrist and upper arm in the process.
Dr Chang noted that x-rays on 3 January 2007 noted moderate osteoarthritis affecting the distal radio-ulna joint and osteoarthritis affecting most of the joints in her fingers of the left hand. It also noted that an ultrasound of the left shoulder and upper arm showed mild supraspinatus tendinopathy and mild subacromial bursitis. It was noted there was a full thickness tear of the long head of biceps. Degenerative changes were also noted at the acromioclavicular joint.
The doctor found that at the left shoulder movements in all directions were limited by pain and stiffness. In the left wrist and hands all the joints were swollen and deformed and grip power was weak.
The doctor diagnosed a displaced Colles' fracture of the left wrist requiring manipulation and reduction with K wire pinning and the development of osteoarthritis in the wrist joint and joints of the fingers of the left hand. The doctor also noted the outcome in relation to the left shoulder.

The doctor noted that some degree of osteoarthritic change in the joints would be expected in a person of the plaintiff's age but that the fall had aggravated and caused the osteoarthritis to advance at a faster rate.
The doctor opined that the pain and joint stiffness were likely to get worse in time and the left shoulder may become frozen. The doctor did not think that surgery would be conducted on the plaintiff's shoulder because of her age. The doctor noted that the plaintiff would require the use of simple analgesia for pain and would have to depend on help with her daily living.
In Dr Chang's final report of 16 April 2008 the doctor noted that it was necessary to increase the plaintiff's dose of Tramal because of inadequate pain relief. The doctor also noted complaint of depression because of the pain and the plaintiff also was given Zoloft being an antidepressant. The plaintiff had also complained of insomnia despite taking Serepax.
The doctor concluded that the plaintiff continued to suffer pain in her left shoulder and forearm, was depressed and had insomnia. Otherwise her condition remained pretty much unchanged since the last report. The doctor felt that the plaintiff's condition was likely to remain unchanged in the foreseeable future and would continue with the same treatment.
The radiological report of 3 January 2007 from Dr Boeddinghaus reports that at the time of this x-ray of the left wrist and left hand the K wires had been removed. The alignment of the distal radial metaphyseal fracture was unchanged with mild dorsal angulation of the distal fragment. It also noted moderate osteoarthritis affecting the distal radio-ulna joint and the thumb and finger interphalangeal joints as well as the triscaphoid carpometacarpal joints.
The ultrasound at that time showed a mild supraspinatus tendinopathy but no evidence of rotator cuff tendon tear. There was mild thickening of the subacrominal subdeltoid bursa but no evidence of bursal impingement or shoulder abduction. The long head of biceps tendon was markedly attenuated with a probable full thickness tendon tear.
The final comments on the radiology report were:
"1.No adverse finding is seen in relation to the healing distal radial fracture.
2.Carpal and hand osteoarthritis as described. No finger fracture demonstrated.
3.Mild supraspinatus tendinopathy on the left with mild to subacrominal bursal thickening. No evidence of a rotator cuff tendon tear, but there is tearing of the long head biceps tendon within its groove."

The plaintiff's arguments

The plaintiff argued that there was a depression in the ground where the plaintiff fell. Grass was starting to cover that depression. The plaintiff did not see the depression prior to her fall. The depression was likely to have been caused by the "anchoring" of the bird bath that was previously in that position.
Despite the lawn being mowed on a regular basis the mowing contact did not provide for any reporting to the defendant of any hazards encountered when mowing the lawn.
It is argued that the plaintiff fell because the depression was sufficiently deep for the plaintiff to lose her balance and was obscured by grass.
The plaintiff relies upon the Occupiers Liability Act 1985 ("OLA") as to the duty and standard of care owed by an occupier and also the Civil Liability Act 2002 ("CLA") in particular s 5B.
The plaintiff says that there was a risk of the plaintiff walking into the depression, losing her balance and falling and this was a risk of which the defendant knew or ought to have known because the depression had been there for many months and it had not been repaired.
The plaintiff says that the risk was not insignificant given the age of the plaintiff. It is relevant, according to the plaintiff, that the premises were set aside for the accommodation of senior citizens.
The response to that risk is a simple one according to the plaintiff. The depression could be filled with sand. The plaintiff's contention is that the probability of harm which the plaintiff suffered was high; elderly people being notoriously unsteady on their feet. The burden of taking precautions to avoid the risk was minimal.

The defence position

The defence position is that under the OLA the defendant's duty is to exercise such care as in all the circumstances is reasonable to see that the plaintiff will not suffer injury or damage by reason of dangers due to the state of the premises or to anything done or omitted to be done on the premises for which the occupier is by law responsible and that that duty is limited in scope by the plaintiff's own obligation to exercise reasonable care for her own safety.
The defendant argues that the duty extends only to such risks of injury or damage as are foreseeable, not insignificant, not apparent and not to be avoided by the exercise of reasonable care by a person such as the plaintiff and finally only requires the defendant as occupier to take such care as is reasonable in the circumstances.
The defendant's position is that the condition of the lawn did not create an unreasonable risk of injury to the plaintiff because:
(a)the condition of the lawn was obvious to the plaintiff;
(b)it was her backyard;
(c)the defendant employed a lawnmowing contractor to mow the lawn regularly;
(d)the plaintiff never reported to the defendant there was anything wrong with the lawn; and
(e)the depression, if it existed and caused the fall, was so insignificant that no reasonable person would describe it as a danger.
The defendant also relies upon the fact that this was an obvious risk and under the provisions of the CLA it does not owe a duty of care in this regard. Further it argues that it is not liable for harm if that harm is as a result of the occurrence of something which cannot be avoided by the exercise of reasonable skill and care by the defendant.

The legal principles

Section 5 OLA relevantly provides:
"5. Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
(2)…
(3)…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to –
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person."
Section 5B CLA provides:
"5B. General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless –
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person's position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) –
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of that activity that creates the risk of harm."
The plaintiff's outline of arguments suggests that the general principles concerning the question of breach of standard of care would be a mixture of the provisions of the OLA and the CLA to which I have referred.
The Acts, to a very large extent, mirror the position at common law as to the existence and scope of a duty of care. Section 5B of the CLA is exclusionary in its terms in as much as in s 5B(1) it is expressed that "a person is not liable for harm …". In those circumstances it is necessary to look at the common law position and then see whether or not the provisions of s 5B apply to exclude a duty of care or breach in the relevant case.
In Road & Traffic Authority of New South Wales v Dederer [2007] HCA 42 Gummow J at [18] helpfully and, with respect, succinctly set out the legal principles relevant to negligence. He said:
"These principles may be re‑stated shortly. First, the proper resolution of an action in negligence depends on the existence and scope of the relevant duty of care. Secondly, whatever its scope, a duty of care imposes an obligation to exercise reasonable care; it does not impose a duty to prevent potentially harmful conduct. Thirdly, the assessment of breach depends on the correct identification of the relevant risk of injury. Fourthly, breach must be assessed prospectively and not retrospectively. Fifthly, such an assessment of breach must be made in the manner described by Mason J in Wyong Shire Council v Shirt."
In Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47 Mason J said:
"In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have."
His Honour went on to say at p 48:
"The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors."
Returning to Dederer, Gummow J also dealt with the position of occupiers and that there is an expectation that plaintiffs will exercise reasonable care for their own safety and this is a "general matter in the assessment of breach in every case" (at 45).
Clearly the defendant did owe a duty of care to the plaintiff under the OLA and at common law. The question is what was the scope of the duty and whether or not there was a breach.
The defendant cited a number of authorities which involve tripping and falling cases. Whilst such cases are illustrative of the way in which the courts have approached the question of breach of duty of care in a particular set of circumstances, it is trite that each case must be decided upon its own particular set of facts.

Findings of fact

It is undisputed that on the day in question the plaintiff fell and sustained the injuries complained of.
As to where the plaintiff fell is a matter in issue. I have noted that the plaintiff marked Exhibit 3, photograph number 12 as to where she fell in a different position to that marked by her son as to where he found her and to that marked by Ms Hortin as to where she says the hole in the ground was.
The defendant argues that on the plaintiff's own case she did not fall where the hole was but some distance away and that being the case the cause of her fall has not been established.
I am prepared to disregard the discrepancy between where the plaintiff said she fell and where her son said he found her. The plaintiff was injured. She remained lying on the grass until her son arrived. She was in pain. It is entirely understandable that she may be mistaken as to the exact position on the grass where she fell.
There is no evidence that the plaintiff moved or was moved from the position where she fell to the position where her son found her. Her son marked photograph number 13 on Exhibit 3 as to where he said he found her and that coincides to all intents and purposes with the same position marked by Ms Hortin as to where the hole was where the bird bath had been.
Accordingly, I find as a fact that the position of the fall was as indicated on photograph number 13 by the plaintiff's son.
It is also clear from the evidence and supported by what can be seen in the photographs that the lawn was not in pristine condition. The evidence of Mr Waterson was that there had been a particularly dry winter and the lawn had suffered as a result. By the time the photographs were taken in November 2006 the lawn was only starting to recover. The lawn shows bare patches and weeds growing in the lawn.
The lawn was clearly not an area which was of bowling green condition.
Generally speaking, the lawn appears from the photographs to be flat. I find as a fact that it was regularly maintained by way of mowing by Mr Waterson. I find as a fact that it was patchy and dried off as indicated by him. As he said, it was coming out of dormancy.
I also accept the evidence of the plaintiff and Ms Hortin that at some time in the past the prior occupant of the unit now occupied by Ms Hortin had placed a bird bath on the lawn and in the approximate area where the plaintiff is shown to have fallen in photograph number 13 on Exhibit 3. I accept that that bird bath had been removed and I find that either a section of the grass had been cut out to receive the base of the bird bath or alternatively the bird bath had caused a depression in the grass in that area.
What is the nature of that depression? There was no evidence from Mr Waterson that he found anything untoward in the grassed area. There is an evidentiary vacuum in that regard. I find that there was a depression in the grass in this area. I am not able to say what, if any, other depressions there were in the grass having noted that it gives the appearance of being flat in the photographs.
I accept there was a depression having regard to the evidence of the plaintiff's son and Ms Hortin and also the photographic evidence at photographs numbered 16 and 17.
The evidence on the plaintiff's side as to the depth of the depression is largely unchallenged. It is only necessary for me to refer to the cross‑examination of Mr Smith when he said that the depth of the hole was approximately 1 inch at its centre. I accept that to be the case.
I do not accept it as being 2 to 2½ inches deep as he once described in cross-examination. That is inconsistent with his other evidence and inconsistent with the photographs which were presented in support of the plaintiff's case.
I also find that the hole or depression was not one with clean cut edges.
I find that the plaintiff was crossing the grass at the time of her accident. So much is not in contest on her evidence. I also find that she was hurrying. That was also the tenor of her evidence. Indeed in re‑examination she said that she was practically running because she wanted to get back to her unit in order to go to her club.
I also find as a fact that the plaintiff was generally familiar with the area. It was right outside her back door. She would go out there regularly in order to hang her washing on the line. Her line was the clothes line which appears in the row of clothes lines closest to her unit. She also spent time in this common area where she would meet with other residents and chat. She said that she would sit out on the lawn. She said that she watched Esther the previous occupier of Unit 3 put the bird bath onto the lawn.
I also accept that notwithstanding the plaintiff visiting this area and spending time in the area there was no evidence to show that she saw or knew of the depression other than that she knew that the bird bath had been there. I refer to it as a depression given my findings previously. It may well have started as a hole dug by Esther when she put the bird bath in place, but it seems from the evidence and from the photographs that since the removal of the bird bath the edges of that hole have been trodden down so that it can now only be described as a depression or a dish shape.
The defence has argued that the risk to the plaintiff was obvious and invokes s 5O CLA which is to the effect "a person (the 'defendant') does not owe a duty of care to another person (the 'plaintiff') to warn of an obvious risk to the plaintiff". In view of my findings I find that this was not an obvious risk to the plaintiff. There is no evidence to suggest such a finding beyond the fact that she knew that there had been a bird bath in the area.
The evidence of Ms Hortin that the units were occupied by, as she put it, senior citizens over 55 was not in any way contradicted. Accordingly, I accept that that is the case. I also accept as a matter of common experience that older persons (not necessarily once they reach 55) tend to be less steady on their feet and perhaps more susceptible to falls. It is also a matter of common experience that when elderly people do fall the sorts of injuries that they sustain can and often are catastrophic.

Application of the facts to the law

Having made this observation that elderly people are more liable to fall the evidence of the plaintiff was that she was good on her feet notwithstanding her previous injury to her leg and having had two knee replacements. She said that on the day in question she was not limping.
Nevertheless the risk of injury to the plaintiff or to a class of persons including the plaintiff, that is to say the elderly, is not far-fetched or fanciful as that expression is used in Wyong Shire Council v Shirt. A grassed area is a natural surface. It is in the normal course of things liable to change with prevailing circumstances and perhaps develop undulations for one reason or another. A lawn such as that at these premises is not kept to bowling green standards.
That being the case there is a risk of a person who is less steady on their feet being subject to a risk of falling if there is a depression in the surface over which that person may traverse.
Accordingly, in my view this case comes down to the consideration of what a reasonable man would do by way of response to the risk.
As was said in Wyong Shire Council v Shirt, that involves a consideration of a number of factors. Firstly, there is the magnitude of the risk and the degree of probability of its occurrence. In this regard the plaintiff's argument that the risk was not insignificant given the age of the plaintiff is a very real consideration. The magnitude of the risk and the degree of probability of its occurrence increases or decreases depending upon the class of persons who are subjected to the risk. In my view the magnitude of the risk and the degree of probability in this case is one which was not insignificant, as the plaintiff put it, having regard to the fact that these premises are occupied by senior citizens.

Nevertheless, notwithstanding that finding one must still consider the response of a reasonable man to the risk. The defence say that the occupier of the premises is to take such care as is reasonable in the circumstances. What is reasonable must be tested by the matters to which I have just referred. The defence says that the plaintiff never reported to the defendant that there was anything wrong with the lawn. The difficulty with that submission is that there was no evidence that the plaintiff knew of the depression and it is therefore difficult to see how she could have reported it. I do not accept that it was a trap in as much as grass had grown over it to disguise the depression. The photographs do not bear out such a finding.
The depression had according to the evidence of Ms Hortin been there for some time. That being the case what is the response of a reasonable person in the defendant's position to that risk? I have already dealt with the considerations of magnitude of the risk and the degree of probability of its occurrence. As I have said, it is not insignificant. Accordingly, the reasonable response would be to take some action to alleviate the risk of an elderly person stepping into the depression and falling in some way or other.
The plaintiff argued that it would have been a simple process to have removed the risk by filling the depression with sand. There was no real argument to the contrary. I did not hear evidence as to what the cost would have been but it seems to me that the reasonable cost would not have been significant.
In coming to my decision on liability I have had regard to the matters set out in s 5(4) of the OLA and in particular subclauses (a), (c), (e) and (g) and have dealt with these above.
I have also had regard to the CLA at s 5B and again all of these are dealt with in my findings above.
Before coming to my conclusion it is necessary for me to have regard to the other matters relied upon by the defendant in the CLA. The defendant relies upon s 5N to the effect that an injured person is presumed to be aware of the risk of harm if it was an obvious risk unless the person proves on the balance of probability that he or she was not aware of the risk. Apart from my finding that this is not an obvious risk, I have noted that there was no evidence that the plaintiff was aware of the depression or of the risks associated with it.
The defendant also relies upon s 5O which I have set out above. Again in view of my finding that this was not an obvious risk as that term is defined in s 5M of the CLA, s 5O does not apply.
The defendant also relies upon s 5B which provides that a defendant is not liable for harm caused if the harm is the result of an occurrence of something that cannot be avoided by the exercise of reasonable skill and care by the defendant. Again in view of my findings about the response of a reasonable person to the risk s 5B does not assist the defendant.

Conclusion on liability

Having made these findings of fact I find that the defendant did have a duty of care to the plaintiff and breached that duty of care. Accordingly, the plaintiff must succeed on her claim.

Contributory negligence

The defendant pleaded that the accident was caused or contributed to by the plaintiff's own negligence in:
(i)failing to keep a proper lookout;
(ii)failing to take any or any adequate care for her own safety when walking over the grassed area; and
(iii)failing to observe and take steps to avoid known hazards which she knew or should have known existed.
I have found that this lawn was not kept to the standard of a bowling green. I find that the defendant's obligation did not extend that far.
If that were the case then a depression such as that described and found by me might be more noticeable and might cause the plaintiff to take more care for her own safety when walking over the grassed area and to take steps to avoid that hazard.
However that was not the case. As I had indicated, the grass itself was bare in places and very dry and scrubby. It seems to me that this depression is something that the plaintiff might well have not noted in the context of the area as a whole. It is the sort of thing that would be easily overlooked by momentary inadvertence.
I am conscious that Ms Hortin said that she observed the hole in the lawn and she would take steps to avoid it. However, the orientation shows that when she comes out of her back door to get to the washing lines she would walked straight across the grass. This was not the plaintiff's position. Her evidence was that she would come out of her back door and use the path to get to her washing line.
In the circumstances I am not satisfied that the plaintiff was guilty of contributory negligence.

Damages

I have already noted the injuries and the effect upon the plaintiff. The plaintiff is now 74 years old and suffers residual disabilities which have taken her from being an independent person to one who is no longer independent. Having said this, there is no claim to gratuitous services and it is apparent that there are things that she can do around the house.
The plaintiff is, however, subjected to pain, discomfort and disability and requires analgesia for her pain.
She has developed osteoarthritis. She will not be undergoing surgical treatment in the future in order to repair her shoulder. That is entirely understandable at her age.
Accordingly here is a plaintiff in advanced years who is now suffering disability and as a result has lost the enjoyment of life that she formerly had. She gave evidence that before the accident she regularly went to her club. She would play carpet bowls and indeed prior to the accident was teaching or about to teach carpet bowls to others in another club.
She gave evidence that she cannot use her left hand, if she does it results in swelling. One matter of some concern to her is that she cannot wear her rings on her wedding finger.
The plaintiff is left hand dominant. She says that she cannot write properly. Indeed I observed that the plaintiff, when asked to mark a photograph with a cross as to where she said she fell, started to mark the photograph and changed hands and marked it with her right hand. I had no reason to doubt her sincerity in doing this.
These injuries were serious injuries made the more so by the age of the plaintiff. They have had a real effect upon her life and I am of the view that a proper measure of damages in respect of these injuries would be $50,000.
Section 9 of the Civil Liability Act places restrictions on the damages for non‑pecuniary loss.
Section 9(3) provides:
"If the amount of non-pecuniary loss is assessed to be more than Amount C but less than the sum of Amount A and Amount C for the year in which the amount is assessed, damages for non‑pecuniary loss are not to be awarded in an amount that is more than the excess of the amount assessed over the amount calculated as follows –
Amount A – (Amount assessed – Amount C)."
It is agreed that at the present time Amount A is $15,500 and Amount C is $47,000. The sum of Amounts A and C is therefore $62,500.
The amount which I have awarded falls within s 9(3). It is in excess of Amount C ($47,000). The calculation at the end of s 9(3) would be:
$15,500 (Amount A) – ($50,000 (amount assessed) ‑ $47,000 (Amount C)) = $12,500
Accordingly, under s 9(3) the maximum amount that may be awarded is $50,000 ‑ $12,500 = $37,500.
The plaintiff also claims the cost of pharmaceuticals. The evidence is that she takes Tramal and Panamax at a cost of approximately $10 per month. There is no claim for past medical expenses. The plaintiff's evidence as to the need for pharmaceuticals is supported on the medical evidence.
No calculations involving life expectancy have been given to me in this regard and I am prepared to make a global allowance of $500 in respect of pharmaceutical expenses in the future.

Conclusion

There should be judgment for the plaintiff for damages in the sum of $38,000.