Tully v Council of the City of Townsville

[1992] QCA 117

IN THE COURT OF APPEAL	[1992] QCA 117
SUPREME COURT OF QUEENSLAND	Appeal No.74 of 1991
BETWEEN:

RAYMOND DOUGLAS TULLY

Respondent

- and -

COUNCIL OF THE CITY OF TOWNSVILLE

Appellant

JUDGMENT - FITZGERALD P. and DAVIES J.A.

Delivered the 21st day of May, 1992

At about 10.15 on the morning of 27th December, 1982

the respondent plaintiff, while engaged in his employment by
the appellant defendant as a dump attendant, was injured
when working at the appellant's refuse dump at Queens Road,

Hermit Park, Townsville.

He sued the appellant for damages for injuries then

suffered which injuries he said were caused by the

appellant's negligence.

After a trial in which the issues of negligence and

damages were alive, Kneipp J. found that the respondent's
injuries were caused by the appellant's negligence, found
the respondent not guilty of contributory negligence and
assessed the respondent's damages at $512,615. After
deducting the Workers' Compensation Board of Queensland
Statutory charge of $49,043, His Honour gave judgment for
the respondent against the appellant for $463,572 with costs
of the action to be taxed.

The appellant appeals from that judgment.

Negligence

The learned trial judge accepted the respondent's

account of the incident in which he was injured and his
account of his method of work. It was, as His Honour found,
part of the respondent's work to supervise vehicles drawn up
at or near the face of the tip to see that some sort of
order was preserved and to see that, where it was required,
the dumping was done in appropriate places on the face.

His Honour also accepted evidence of the respondent and

his witnesses involved in the operation of the dump which
operations he found followed a familiar pattern. His Honour
considered two matters significant. First, a high
proportion of the fill used at the dump consisted of clay or
clay like soils. Secondly, operations of the dump during
dry periods raised quantities of dust which were a nuisance
to nearby residents and to prevent this the surface of the
dump was sprayed by water trucks. Kneipp J. found that as a
result of this spraying, those parts of the surface which
were of clay composition often became greasy and slippery
and "this was the cause of the falls and slippings" from
time to time by employees of the appellant and users of the
dump. His Honour concluded, as he was entitled to do on the
evidence, that there was a significant number of such falls
and that that was known to the respondent's superior, the
foreman of the dump.

The respondent's injuries had been caused by his

slipping and falling. It was common ground on the pleadings
that the area on which the respondent slipped had been
watered prior to that accident. This finding was not
challenged.

When wet weather was expected and when weather was wet,

the appellant used what was called cracker dust on the tip;
this dust was laid on slippery areas and if done properly,
was effective in providing a stable surface both for
vehicles and people, thus tending to prevent slips or falls.

This step was principally taken to protect members of the public who used the dump. His Honour expressly found that there was no continuous laying of cracker dust and that cracker dust had not been laid after the area had been watered prior to the respondent's accident.

Turning then to the respondent's method of work, His

Honour, after mentioning the supervisory aspects of his

work, to which reference has earlier been made, said:-

"This meant that he was generally off the area on
which cracker dust was laid when it was in fact
laid. It was generally laid reasonably close to
the tip face on the area in which vehicles would
be parked while their loads were being placed on
the dump. The plaintiff I find, as a necessary
incident of his work, stood back from that area -
off the area bearing cracker dust - when cracker
dust had been laid so as to have an overview of
what was going on and to be in an appropriate
positions [sic] to give signals or instructions to
the drivers of vehicles as they approached the
face of the dump. This work would obviously
require him to be on the move and on the alert,
watching the movement of the traffic, securing the
attention of drivers, giving directions to them
and ensuring that he did not come into contact
with moving vehicles. This in turn would
obviously mean that, at least for significant
periods, he would not be able to give proper
attention to where he was placing his feet. The
risk of placing a foot on slippery ground and
slipping on it was thus fairly high.
I accept his account of the accident. He was
intent on the movements of a vehicle proceeding to
the tip face and was moving towards it in order to
engage the attention of the driver and give him
instructions. He stepped on a patch of damp
clayey soil and then stopped, whereupon his feet
or one of them slipped forward, with the result
that he fell heavily on his buttocks, thus
sustaining a spinal injury which has had serious
consequences."

All findings so far mentioned were open on the evidence before His Honour. His Honour then considered the aspect of foreseeability and said:-

"Leaving aside actual knowledge on the part of the
plaintiff's superior or superiors, I am satisfied,
and I find, that at the relevant time it was
foreseeable for an employer who had taken
reasonable steps in informing himself of relevant
matters that there was a risk that the plaintiff
might slip and fall while he was doing his work,
and that if he did so he would be at risk of
sustaining a significant physical injury. For
reasons which I have already given, the risk of
slipping was comparatively high, and if he did
slip the risk of serious injury was comparatively
high. Evidence was given by Mr. Kahler, the
engineer called by the plaintiff, as to the
incidence of serious spinal injuries as a result
of slips and falls. Those incidents are
comparatively high."

Mr. Williams Q.C., who appeared for the appellant, submitted that His Honour had grossly overestimated the degree of risk of falling as a result of slipping to which the respondent was exposed. He conceded that the risk of slipping was foreseeable but his quarrel was with His Honour's use of the phrase "comparatively high".

Roger John Kahler, a Bachelor of Mechanical Engineering

whose qualifications included intensive training of
management and the workforce of several major mining,
mineral processing and smelting companies in Queensland,
Tasmania and New Zealand in the areas of "slips, trips and
falls", had given oral and written evidence at the trial.
Kahler's evidence amply supported the findings which were
made and it is apparent from a reading of the reasons for
judgment that Kneipp J. accepted Kahler's evidence but, when
speaking of the risks of slipping and serious injury, His
Honour qualified Kahler's opinion that the risk was "high"
by using "comparatively". In short His Honour's use of the
phrase "comparatively high" was open on the evidence.

His Honour went on to consider whether there were

practical means of obviating the risks. He divided this
into two parts - first, what could be done and second, was

it reasonable to do so having regard to the possible costs.

As to the first part His Honour accepted Kahler's evidence

that there should have been a specific system in place in
relation to the laying of cracker dust when the surface of
the dump was slippery, and that it should have been laid in
the area in which the work of an employee such as the
plaintiff was done as well as in the area immediately next
to the face of the tip. He concluded that had this been
done, it would have provided a safe surface and
significantly reduced the risk of slips and falls by
employees of the appellant and areas of the dump making it
more probable than not that the respondent would not have
slipped and fallen on the occasion in question. These
conclusions were plainly open on the evidence.

As to the second part of his enquiry, His Honour found that, "given the risks, the methods suggested by Mr. Kahler to avoid the risks were practicable so far as costs were

concerned". According to Kahler, the cost would have
increased the annual dump operating costs from the budgeted
figure of $700,000 by 7 to 10 percent. His Honour, while
recognising "a considerable element of speculation" was

satisfied Kahler's figures were "particularly conservative".

He said:

"In considering this question of costs one again
must take into account the seriousness of the risk
of slipping and the possible seriousness of the
consequences. In addition to that, I feel that I
am able to take account of the fact that the
defendant, whose resources should be considerable
and which could furnish costs as to what were the
costs of what was done, did not in fact go into

evidence on this issue."

Mr. Williams argued that the costs as disclosed by

Kahler constituted an enormous burden on the appellant in respect of a relatively minor risk, but that is simply not in accordance with the findings which were open on the evidence.

The appeal on the issue of negligence fails.

Damages

Grounds 4 and 5 of the Notice of Appeal are in the following terms:

"4. That the trial Judge's assessment of the
Respondent/Plaintiff's damages was manifestly
excessive in that:-

4.1 the allowance for pain and suffering was

manifestly excessive;

4.2 the allowance for past and future economic loss was manifestly excessive and was not sufficiently discounted for contingencies and the vicissitudes of life;
4.3 the allowance for future care was manifestly excessive and in any event not justified on the evidence before him.

5.   In the circumstances of the case the trial Judge ought to have made no or no substantial allowance for future care."

The respondent was 28 years old when he was injured and almost 37 years old at the trial. In the fall, he suffered significant injuries to the lower spine leaving him permanently disabled. He was absent from work for eighteen months, during which he underwent surgery which it was found was not successful "at any rate in the long term". After he returned to his employment he worked with difficulty and his work mates "carried him" to a significant extent. At the end of 1986 he ceased work because he was not able to carry on even with the support of his fellow employees. He is, for all practical purposes, permanently unemployable.

The amount which his Honour allowed for the matters referred to in grounds 4.3 and 5 was $75,000.

At the time of trial, the respondent had been in a stable de facto relationship for about twelve years, and he and his common law wife, who was then aged 30, have three children, all born since his accident including one who was a 4 months old baby. Prior to the accident, the house work was shared but, since the accident, "practically everything about the house and garden" has been done by the respondent's common law wife. However, the trial judge found that the respondent "is capable of doing more in the house and garden than was suggested", and that "he is able to take personal care of himself".

That finding was supported by evidence which established that the respondent could take care of his own hygiene, dress, undress (although he needed some help with socks), make his own sandwich for lunch, mow the largest part of the lawn on a rider mower, and perform routine household maintenance. The evidence also proved that his capacity to work in the kitchen would be substantially improved if work benches were raised and a microwave oven installed.

In his reasons for judgment, the trial judge said:

"There is no Griffiths v. Kerkemeyer claim for the care of the plaintiff to date. As I have said, he is capable of attending to personal needs and the work around the house and the garden, or most of it is done by his wife. She is in fact not his lawful wife, but they have been together for a very considerable period and they have three children. She has remained with him during what must have been very considerable vicissitudes

since the date of his accident. It therefore seems that the union is as permanent as would be most legal unions. However, of course, what the future holds both in relation to the plaintiff and his wife remaining together and in relation to her capacities can only be a matter of speculation. A Griffiths v. Kerkemeyer claim was put forward for the future. I think, however, that one can only approach this on the basis that the plaintiff is entitled to be compensated for a risk that at some time in the future, which may be sooner than later, or vice versa, he might have to expend amounts in replacing the services of his wife. To put a value on this is obviously very difficult, particularly as one must take into account the value of a present payment. In all the circumstances, in relation to this risk, I allow the sum of $75,000."

Later, in his summary of the "final items" included in his award of damages, the trial judge said that the sum of $75,000 was for "future expenses", and no other part of the judgment made provision for such a claim.

The material paragraphs of the Further Amended Statement of Claim are paragraphs 7 and 8 which respectively provided:

"7. As a result of the said incident the Plaintiff suffered bodily injury which included an injury to the lumber and sacral regions of the spine and associated soft tissues.

8. As a result of the said bodily injury the
Plaintiff:

(a)  Has endured and will endure pain, suffering and inconvenience;

(b)  Has been left with permanent disabilities of the lumber and sacral spine and associated soft tissues;

(c)  Has lost income he would otherwise have earned and will suffer future economic loss;

(d)  Has been deprived of some of the amenities of life;

(e)  Has required and will require care and assistance."

In this Court both parties, like the trial judge in his reasons, referred to the claim in paragraph 8(e) as a Griffiths v. Kerkemeyer claim. As is made plain in Nguyen v. Nguyen (1990) 169 C.L.R. 245, 262-263, the basis of such a claim is that an injured person who needs additional services by reason of the injuries is entitled to compensation related to the value of the services needed irrespective of whether or not payment for them is or will be required. The circumstances that a gratuitous provider of such services might cease to do so and that it might therefore become necessary to pay another person to provide the services are not directly material to such a claim. The cost of similar services, if obtained commercially, is relevant to the assessment of the amount of the compensation which is concerned only with services actually needed, whether presently, prospectively, or perhaps contingently.

As the quoted passage from the reasons for judgment stated, the respondent made no claim for his care to the date of trial. Further, there is no indication in the reasons for judgment that a claim for the future cost of additional services presently needed by the respondent was considered by the trial judge or formed any part of the foundation for the award. Nor is there any indication that the respondent's present capacity to perform services for himself will or might diminish and consequently that, for that reason, the services which he needs to have provided for him will or might increase in the future.

Whether or not correctly described as a Griffiths v. Kerkemeyer claim, the claim with which the quoted passage from the reasons for judgment was concerned related to the possibility of a future need by the respondent to obtain elsewhere and pay for services presently provided gratuitously by his common law wife; that is, to pay for the services which had been provided to the respondent domestically prior to his injuries and any additional services needed by him in consequence of those injuries. If his common law wife's services cease to be available to him in the future, the respondent might have to pay to obtain virtually a full range of domestic services. Evidence was adduced directed to the present cost of providing a full range of "care and assistance" at commercial rates. In considering such a claim, the trial judge was required, following Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638, to assess the respondent's damages in accordance with the degree of probability of any of the contingencies which might occasion such a need.

The reasoning process which led to an assessment of $75,000 is not disclosed. Although, as stated, both parties referred to the respondent's relevant claim as a Griffiths v. Kerkemeyer claim, their competing arguments proceeded on substantially different bases. The point can be readily demonstrated. Paragraph 9(e) of the appellant's outline of argument and paragraph 7 of the respondent's outline of argument were respectively as follows:

"9(e) The allowance of $75,000 represents, at the commercial rates in Exhibit 48 (330) and over a life expectancy of 35 years, the provision of approximately 9 1/2 hours assistance per week continuing unabated to the end of the Plaintiff's life."

"7. So far as the claim for future care is concerned the Plaintiff if he separated from his de facto wife would require the provision of practically all domestic and similar tasks. He is able to attend to his personal care but would on the evidence accepted by the Court and based upon the Report of the Occupational Therapist, Sharon Keesing, have to incur substantial expenditure in providing such services in the event that this became necessary. The Trial Judge assessed damages upon the basis of the contingency that this would be necessary and bearing in mind the Plaintiff's age and the substantial expenditures involved the amount of $75,000.00 falls within the ambit of what a reasonable assessment of such loss might be bearing in mind the difficulties attending such an assessment. The weekly costs of the services that the Plaintiff would require is $450.00 pp. 230 and 330. The Plaintiff is thirty- seven years old. His life expectancy is 36.88 years. The present value of the amount required by the multiplier is $395.686.00. $75,000.00 represents an award of less than one-fifth of what the Plaintiff would require on the evidence for care and assistance if he did not presently have someone to perform these tasks. Such an allowance on a contingent basis can hardly be regarded as too high for a young man."

The appellant's contention appears to relate to additional services presently and prospectively needed and was clearly not the basis upon which the trial judge made his award. However, there is no way of telling whether the trial judge adopted the respondent's course or followed some

quite different approach and, if so, how he arrived at a

figure of $75,000.00.

Such findings as were made by the trial judge in relation to the respondent's incapacity and his present and potential need for services were supported by evidence which it was open to His Honour to accept. The criticisms made of his findings, depending as they did on the trial judge's view of the witnesses, were not matters which could properly persuade this Court to differ. However, they provide no obvious foundation for the award of $75,000.00 which was made.

His Honour's assessment must have been on one or more of the following possibilities:

(1) the relationship between the respondent and his common law wife might end;

(2) the respondent's common law wife might become incapacitated or join the workforce, thus eliminating or reducing her ability to provide services to the respondent,

(3) she might die before him.
The only evidence on the first of these matters, as his

Honour recognised, supported the strength of the relationship. No evidence was adduced concerning the statistical likelihood of separation. In the circumstances, we do not think that on the evidence there was more than a remote possibility that the relationship will fail.

Similarly, there was no evidence of any possibility of
incapacity of the respondent's common law wife and she swore
that she had no present intention of joining the workforce.
Again on the evidence, there was no more than a remote

possibility of her future unavailability to care for the

respondent on this footing.

As to the third of these considerations, we think that, given their respective ages, no substantial allowance should be made for what is another minor possibility.

In our view there was no basis for more than a nominal amount for this component of damage. We adopt the sum of $5000 accepted by the appellant.

It remains to be considered whether that amount should be increased to include a Griffiths v. Kerkemeyer claim related to the respondent's present and future additional needs from his injuries which are being met by additional services presently provided gratuitously by his de facto wife. Although the reasons for judgment contain no express indication that the award of $75,000.00 included an amount related to these services, paragraph 9(e) of the appellant's outline of argument in this Court appears to proceed on the assumption of such a claim. In the confusing circumstances associated with the respondent's claim for future expenses, it seems appropriate to include such a component if it is warranted by the evidence.

It is extremely difficult to decide this question and, if so, to determine the appropriate amount. Neither the conduct of the trial nor the trial judge's findings make it easy to attribute a value to additional services gratuitously provided to the respondent by his de facto wife. Further, the paucity of findings makes it impossible to give any meaningful consideration in this case to the suggested gloss on Griffiths v. Kerkemeyer raised in Kovac v. Kovac (1982) 1 NSWLR 656, as a result of which it seems to be accepted in New South Wales that compensation is not awarded in respect of additional services which are provided to an injured person "as part of the ordinary circumstances and obligations of family life" : Rogers v. Whittaker (1991) 23 NSWLR 600, 620. See also Carrick v. Commonwealth of Australia (1983) 2 Qd.R. 365. No more is possible in this case than a broad assessment which, like the reasons of the trial judge may theoretically be susceptible to criticism for lack of detail.

An amount of $30.00 per week for a period of 25 years seems appropriately conservative. The present value of that amount according to the 5% table is $22,620.00. After allowance of a small discount for contingencies, an amount of $20,000.00 is appropriate.

In aggregate, an amount of $25,000.00 should be

substituted for the $75,000.00 awarded by the trial judge.
The difference is more than 10% of a substantial award and
justifies the Court's interference.

The appellant's other complaints may be dealt with

briefly.

Its submission in relation to the damages awarded for pain and suffering was commendably abrupt. It was simply asserted that the award of $65,000.00 was 'too high" and that $50,000.00 is "proper and adequate compensation". It is a sufficient answer that, as the respondent contended in paragraph 6 of its outline of argument:

"The Trial Judge's assessment of damages for pain, suffering and loss of amenities was, given the severity of the Plaintiff's disabilities and his age, well within the permissible limits of the Court's discretion in awarding damages under this head."

The appellant's submission in relation to past economic loss was that, having regard to the nature of the respondent's employment and his employment history, a discount of only 10% across a five year period was too small and that a discount of 20% would have been more appropriate. However, the respondent had worked for the appellant for a period of years prior to the accident and again for a period after the accident and there is no rational basis for a conclusion that a discount of 20% for contingencies would be more appropriate than the lesser discount selected by the trial judge.

We would allow the appeal with costs, substitute an assessment of $462,615 and give judgment for the respondent for $413,572 with costs in the court below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.74 of 1991
Before the Court of Appeal
The President Mr. Justice Davies Mr. Justice Shepherdson
BETWEEN:

RAYMOND DOUGLAS TULLY

Respondent

- and -

COUNCIL OF THE CITY OF TOWNSVILLE

Appellant

JUDGMENT - FITZGERALD P. and DAVIES J.A.

Delivered the 21st day of May, 1992

MINUTE OF ORDER: ORDER: APPEAL ALLOWED WITH COSTS. SET ASIDE JUDGMENT APPEALED FROM AND, BY MAJORITY, JUDGMENT IN FAVOUR OF RESPONDENT FOR $413,572.00 WITH COSTS OF THE PROCEEDINGS IN THE COURT BELOW.

CATCHWORDS:	Master and servant - Injury of servant - Liability of master for respondent/employee injured whilst working at refuse dump when slipped on wet clay surface - whether finding that risk of injury "comparatively high" open on the evidence - whether finding that costs of minimising risk not unreasonable open
Counsel:	Mr S.C.Williams Q.C. with him Mr J. Webb for the appellant
Mr K. Cullinane Q.C. with him Mr M. Pope for the respondent
Solicitors:	Messrs. King and Co as town agents for City Solicitor for the appellant
Messrs. Dempseys, Townsville for the respondent

Hearing Date: 11/03/92

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No.74 of 1991
BETWEEN:

RAYMOND DOUGLAS TULLY

Respondent

- and -

COUNCIL OF THE CITY OF TOWNSVILLE

Appellant

__________________________________________________

__

THE PRESIDENT
DAVIES JA
SHEPHERDSON J
__________________________________________________
__

Reasons of Fitzgerald P. and Davies JA., with separate reasons of Shepherdson J, delivered on the 21st day of May, 1992

__________________________________________________
__

ORDER: APPEAL ALLOWED WITH COSTS. SET ASIDE JUDGMENT APPEALED FROM AND, BY MAJORITY, JUDGMENT IN FAVOUR OF RESPONDENT FOR $413,572.00 WITH COSTS OF THE PROCEEDINGS IN THE COURT BELOW