Tea Tree Plaza Nominees Pty Ltd v Gaulke No. Scciv-03-1469

[2004] SASC 28

TEA TREE PLAZA NOMINEES PTY LTD  v  GAULKE

[2004] SASC 28

Magistrates Appeal

1. ANDERSON J      This is an appeal from a decision of a Magistrate who awarded the respondent $18,000 damages as a consequence of injuries she sustained when she was involved in an accident that occurred on the appellant’s property at Modbury on 16 November 2001.

2. At the time, the respondent was confined to a wheelchair and was a visitor to the appellant’s shopping centre.  The respondent arrived at the shopping centre by taxi and, after alighting, was in the process of ascending a ramp in her wheelchair.  The ramp was between the car park and the entrance to the shopping centre.  Whilst ascending the ramp the respondent fell backwards out of her wheelchair and sustained injuries.  It is suggested by the respondent that the wheelchair became unstable because of the degree of slope of the ramp.

3. The respondent had attended the same shopping centre on many previous occasions and had used the same ramp but on those previous occasions a friend had pushed her wheelchair up the ramp.  She had no assistance on the day of this accident and it was the first time that she had attempted to go up the ramp unaided.  She was in somewhat of a hurry because she had to attend a hairdressing appointment.  It is suggested that the learned Magistrate should have found that Mrs Gaulke caused or contributed to her own injuries because, amongst other things, she was in a hurry and did not take sufficient care for her own safety.

4. The appellant’s duty of care in my view was as expressed by Deane J in Hackshaw v Shaw (1984) 155 CLR 614 at 663 where his Honour said:

   “All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff.”

5. This statement of principle was applied by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. Was there a real risk of someone in a wheelchair being injured in circumstances similar to those in which the respondent injured herself? I believe there was. The appellant knew and in fact encouraged disabled persons to use the ramp in question by providing disabled parking facilities adjacent to the ramp. The appellant knew or should have known that there was a risk of wheelchairs toppling over, if used unaided, because of the slope. The slope of the ramp in question was in fact greater than another ramp at the shopping centre not far away.

6. What could the appellant have done to eliminate or substantially reduce the risk?  Both counsel agree that the only relevant alternatives were a sign warning of using the ramp in a wheelchair unaided by any other person or alternatively a modification of the ramp to provide a gentler slope.  Whilst the former may have prevented an accident had the respondent heeded the warning, the latter certainly would have very largely eliminated the risk in my opinion.

7. It was not an expensive exercise to so modify the ramp.  In my view the appellant breached its duty of care in failing to provide a ramp with a safe slope.

8. A considerable amount of time was taken at the trial with evidence concerning the ramp.  There was technical evidence advanced by experts including evidence as to Australian standards for kerbed ramps and expert evidence generally relating to those standards and as to the safety of the ramp in question.

9. The learned Magistrate made a finding that the ramp did not comply with the 1977 Australian standard in that the gradient exceeded that set out in the standard.  It was submitted that he was wrong in that finding.  I agree that the learned Magistrate erred in making that finding.  The ramp however did not comply with the Australian standard in place at the time of the accident.

10. On the question of standards generally, I believe that too much attention was devoted to the actual standards and which ones may have been relevant at any particular time.  Those standards are not conclusive in answering the questions relating to breach of a duty of care but may be of assistance.

11. I believe that the experts were at cross purposes to a large extent in their respective considerations.  Mr Dodd was relating the standards to those of building regulations whereas Mr Maddern was using what Ms Salerno, for the respondent, called an holistic approach in that he was looking at safety factors generally.

12. I prefer the approach of Mr Maddern and so did the learned Magistrate.  In the end, the error of the Magistrate relating to his finding regarding the 1977 Australian standards is of little or no consequence.

13. The learned Magistrate was entitled to, and did, accept the expert evidence of Mr Maddern.  That evidence showed that from his own testing, which he carried out with the respondent in the actual wheelchair and positioned on the very ramp in question, even when the wheelchair was in a stationary position on the ramp it was marginally tipping.  When the wheelchair was mobile the accelerations involved increased the risk of tipping thus making the wheelchair even more unstable.  The strength of this evidence was not reduced by any cross-examination.  I think it was compelling evidence which the learned Magistrate used as the basis of his findings that the appellant was in breach of its duty.

14. The learned Magistrate found that there was nothing in the actions of the respondent which made her negligent in her use of that ramp.  In my view the learned Magistrate was correct in that the respondent was entitled to assume that it was a ramp which was suitable for the purpose for which she wished to use it, namely pushing herself in her wheelchair from the car park to the shopping centre.

15. In relation to the assessment of damages the notable points are that the respondent in fact attended the hairdressing appointment at the shopping centre but was in some discomfort and after returning home noticed a hard lump on the back of her head and discomfort in the region of her neck and shoulders.  She was seen by her doctor the next day as she was vomiting and had a headache.  During the following week she experienced nausea and pain in the neck and shoulders and a physiotherapist attended to her home to treat her.  She continued to have further physiotherapy treatment until she was unable to pay for any further visits.  At the time of the accident the respondent was aged 51 years.  It was the evidence of the respondent, which was accepted by the Magistrate, that at the time of the trial she was still suffering from neck and shoulder pain when she turned her head in certain movements.  She is now fearful of using the ramp without the assistance of another person lest her wheelchair topple over again.

16. The respondent had been involved in a previous accident.  She sustained a whiplash type injury to her neck and shoulders.  She made a complete recovery from that injury.  Later again she injured her head, shoulders and neck from a fall and again recovered from those injuries.  Prior to this accident the respondent agreed that she had experienced nausea and vomiting from time to time.

17. At the time of the accident the respondent was also unfortunately suffering from a neurological disease and had been administered morphine injections for pre-existing conditions of sciatica, pancreatitis and occasional migraine headaches.  She was visited at home by a general practitioner once or twice a week on a regular basis.  This accident therefore did not significantly change her usage of pain killers.  She did however suffer a whiplash type injury and had some degree of a post-traumatic disorder associated with the accident and anxiety related to the trauma.

18. The learned Magistrate awarded the respondent the sum of $8,000 for her non-economic loss up to the time of judgment.  During the appeal Mr Doyle, counsel for the appellant, conceded that it was within the range of reasonable awards.  This was a proper concession.

19. In relation to the award of $6,000 for future non-economic loss, counsel suggested that the evidence could only support a much lower figure and that $2,000 was appropriate.  I agree that the evidence does not warrant the award made.  I would substitute the sum of $3,000 for this head of damage.

20. Counsel also submitted that there was no evidence at all to support the awards for $3,000 for ongoing medical and physiotherapy treatment and likewise for an award of $1,600 for “professional, medical and other advice and assistance in overcoming her anxiety in using ramps”.

21. I agree that the evidence to support these two heads of the award is hard to find.  The learned Magistrate clearly used a very broad axe.  I think that the respondent was entitled to a nominal amount to cover these matters because of the impressions left from the whole of the evidence rather than from any specific evidence.  I would therefore substitute an amount of $1,000 to cover both of these items.

22. Special damages were agreed in the sum of $731.

23. I would therefore allow the appeal in respect of the assessment of damages and substitute the sum of $12,731 in lieu of the amount of $18,000.

24. I will hear the parties on the question of costs.