Veitch v State of Queensland

[2002] QDC 83

DISTRICT COURT OF QUEENSLAND

CITATION:

Veitch v State of Queensland [2002] QDC 083

PARTIES:

JANETTE MARGARET VEITCH
Plaintiff

-v-

STATE OF QUEENSLAND
Defendant

FILE NO/S:

D 4778 of 2001

DIVISION:

Civil Jurisdiction

PROCEEDING:

Personal Injury

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8^th May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

12^th , 13^th , 26^th March 2002

JUDGE:

O’Sullivan DCJ

ORDER:

Plaintiff’s claim dismissed

CATCHWORDS:

Personal injuries – negligence- visitor in National Park –duty of care - fall on slippery gravel – failure to erect warning signs

COUNSEL:

Mr W Laurie, for the Plaintiff

Mr G Diehm, for the Defendant

SOLICITORS:

Mark O’Reilly & Associates for the Plaintiff

CW Lohe, Crown Solicitor for the Defendant

1. The plaintiff was visiting the Blackdown Tableland National Park (“the park”) with her husband on 11 September 1992. She was injured when she fell face down onto gravel while alighting from her vehicle within the park. She sues the defendant for negligence.

1. On the day in question the plaintiff and her husband spent some time driving around the park then drove into the carparking area. They visited the toilet and on the way noticed that the surface was slippery and remarked that it was dangerous. They then drove around again, got out of the vehicle to look at orchids, and stopped for lunch at a lookout. No further problems were encountered with slipperiness. They were on their way out of the park when the plaintiff saw a native grass tree in full flower covered in butterflies. She asked her husband to stop because she wanted to take a closer look at it.

1. The plaintiff opened the door of the Landcruiser vehicle, had her right hand on the car door and her left hand on the side of the vehicle, looked down, ‘didn’t see anything wrong with the road’, put one foot down and ‘it went from under me’. She could not stop the fall, fell forwards and landed on her chin. Her husband came to her assistance but had problems getting his foothold, and it took some time before she was back in the vehicle. Her husband took her to the Blackwater Hospital and she was then transferred to the Rockhampton Hospital.

1. The plaintiff alleges that the defendant ought to have erected signs warning pedestrians of the danger of the slippery gravel.

1. The defendant did not contest that it had a duty of care, but denied that it was in breach of that duty and also denied that any breach caused the plaintiff’s injuries.

1. The defendant had erected signs warning of the danger of slippery roads to vehicles, at the entrance to the park and at three other places along the road.

1. There were no signs warning of dangers to pedestrians.

1. Mr Van der Werff, the responsible safety officer for the defendant, did not consider erecting warning signs for pedestrians, as distinct from signs warning of slipping dangers for vehicles.

1. The plaintiff alleges that the defendant was negligent in failing to erect signs to warn pedestrians that the gravel used at the side of the road was ‘pea gravel’ and was particularly slippery and dangerous underfoot.

1. Mr McDonald, a consultant in ergonomics and safety, gave evidence of the need for signs with a person falling over, and a symbol showing rolling elements/stones as the cause of slipperiness. The sign would be at the entrance to the park, with repeaters at intervals to reinforce the message. These signs would be in addition to any signs indicating danger to cars because of slipperiness.

1. Mr Van der Werff could not specifically recall seeing anyone walking along the road but he ‘would say they have’ and he conceded he would ‘expect to see’ people sitting having a picnic in a flat area shown in photograph 12. He agreed that there are any number of reasons why people would pull over to the side of the road, for example, to go to the toilet, or to look at features such as orchids.

1. Mr Van der Werff considered that people could slip on any gravel surface, but he did not think that it was necessary to put up a warning sign. He conceded that pea gravel is very slippery. He had never seen a person at a vehicle stopped by the side of the road slipping over, or having slipped over, nor had any such event been reported to him.

1. I find that it was reasonably foreseeable that the plaintiff would stop by the side of the road, and get out to have a closer look at flora, because of the nature of national parks generally, and the promotion of various items of flora and fauna in the visitor promotional material for the park.

1. I find that the plaintiff’s alighting from her vehicle onto the gravel road was reasonably foreseeable.

1. In considering the nature of the duty owed by the defendant to the plaintiff, I have considered a number of authorities, including Romeo v The ConservationCommissionof the Northern Territory (1998) 192 CLR 431; Secretary to Department of Natural Resources & Energy v Harper [2000] 1 VR 133; Brodie v Singleton ShireCouncil [2001] 180 ALR 145; Scarf v State of Queensland and Council of City of Gold Coast (unreported – White J – 30 October 1998); Percy v Noosa Shire Council (Unreported – Dodds DCJ – 5 October 2001); Miller v McKeon (1905) 3 CLR 50; Schiller v Council of the Shire of Mulgrave (1972) 129 CLR 116.

1. Of particular relevance are the following passages from Romeo v The Conservation Commission of Northern Territory (supra):

‘…Precautions need only be taken when that course is required by the standard of reasonableness.’ (page 480)

‘…courts must “bear in mind as one factor that resources available for the public service are limited and that the allocation of resources is a matter for” bodies accorded that function by law.’ (page 480).

‘The projected scope of the duty must therefore be tested, not solely with the hindsight gained from the happening of the accident to the particular plaintiff but by reference to what it was reasonable to have expected the Commission to have done to respond to foreseeable risks of injury to members of the public generally coming upon any part of the lands under its control which presented similar risks arising out of equivalent conduct.’ (pages 478-9).

1. I agree with Counsel for the Defendant in his written Submissions:

‘Regard must be had to similar or greater risks a pedestrian might be exposed to when walking on or about a roadway anywhere within any similar areas under the control of the defendant.’ (para 58).

Mr McDonald conceded in cross-examination that there was a potential for tripping, from hazards other than pea gravel, such as tripping in a road-side drain.

1. I agree with Counsel for the Defendant in his written Submissions:

‘The Defendant is not obliged ‘to remove all sorts of tripping or slipping hazards including loose gravel, tree roots, uneven surfaces or holes or at the least to warn potential pedestrians of their existence.’ (para 59).

1. I consider that the particular slipperiness of pea gravel was not obvious to anyone by just looking at it. However, I consider that a reasonably prudent person attempting to alight from a vehicle on the side of the road in a remote area ought realise and anticipate that stepping onto loose gravel involves a risk of slipping.

1. The defendant alleges that the plaintiff failed to take reasonable care for her own safety.

1. I consider it relevant that the incident occurred in the outdoors, in a park where a visitor is expected to take reasonable care for her own safety. As Gaudron, McHugh and Gummow JJ said in Brodie v Singleton Shire Council (supra):

‘..persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes.’ (page 192).

I find that gravel is in a similar category.

The plaintiff ought to have been even more careful than a reasonably prudent visitor because of her prior experience of slipperiness in the carpark.

1. The plaintiff said she did not consider, or think about, whether the gravel on the road was the same as the gravel in the carpark, which she had earlier encountered and found to be dangerous. She said she ‘looked at the ground to make sure there were no holes or anything.’ She gave evidence that the gravel on the road looked different from the gravel in the car park because the gravel in the car park was mixed with something else (although her evidence on this point is not clear because she also said that both lots of gravel ‘just looked like gravel’).

1. I find that the experience of the plaintiff in the carpark would have led a reasonably careful person in her position to approach the gravel by the side of the road with an attitude that it was potentially dangerous.

1. I find that a reasonable person exercising reasonable care for her own safety would have appreciated the potential danger of slipping while stepping from a vehicle onto the gravel road.

1. I find that the plaintiff alighted inappropriately from the vehicle, given her earlier experience in the carpark and the fact that she was stepping down from a vehicle onto gravel.

1. I find that the plaintiff failed to exercise reasonable care for her own safety: if she had, she would not have stepped onto the gravel in the manner she did.

1. I find that the plaintiff’s injuries were caused by her lack of reasonable care for her own safety, and not by any breach of duty on the part of the defendant.

1. In her evidence-in-chief the plaintiff said that if a sign indicating the road was slippery for pedestrians had been erected she ‘would not have got out where I did’. ‘If there was a sign saying, you know, ‘Pedestrians take care’, I wouldn’t have got out. I would just simply have asked my husband to back the truck up a bit closer to it and had a look at it through there’. In her cross-examination she said that if there had been a sign telling her words to the effect that pedestrians should be careful because the surface might be slippery she would have given it more thought about the sign and thought, ‘well, I won’t do that’. In re-examination, when shown a diagram of a sign slippery for pedestrians she said it conveyed to her that it was ‘dangerous for people’ and ‘it would have caused me to be very careful’.

1. I find that it is more probable than not that if a sign had been erected, the plaintiff would have read it.

1. I find that it is probable than not that even if she had read the sign, she would still have alighted from the vehicle, and this is the sole basis of negligence pleaded by the plaintiff.

1. I find that she may have alighted with greater care, but this finding does not establish the basis of negligence alleged by the plaintiff.

1. I find that if the sign had said ‘The gravel road is slippery. Do not get out of your vehicle’, then the plaintiff would have remained in her vehicle. However, the plaintiff does not allege that the defendant was under a duty to erect such a sign. In any event, such a sign would be incompatible with the very purposes of a national park, which are to encourage people to explore.

1. The plaintiff has failed to discharge her onus of proving that her injuries were caused by the negligence of the defendant in erecting warning signs as alleged.

1. The plaintiff also alleges that the defendant was negligent in using pea gravel in construction, and material other than the pea gravel ought to have been used.

1. In his report Mr McDonald referred to avoiding the probability of a fall by avoiding using pea gravel in areas where pedestrians could foreseeably alight from vehicles and walk.

1. Mr Lynch gave evidence of the availability of pea gravel, and he and Mr Van der Werff gave evidence of alternative, irregularly-shaped gravel and the practical difficulties and cost of using it.

1. I am not persuaded that the defendant should have used some other type of gravel either by selecting a different source or mixing in other substances to ensure that the gravel was not pure pea gravel. In reaching this view, I have considered the likely cost and practical difficulties.

1. I consider that the defendant is not in breach of its duty to take reasonable care in the use of pea gravel in the park.

Quantum

1. Notwithstanding my finding on liability, I propose to proceed to assess quantum.

1. The plaintiff sustained fractures of her right mandible and left jaw, abrasion, bruising and shock. She was in extreme pain immediately after the fall.

1. Her jaw was fixed and wired and she required prosthodontic treatment and dental treatment.

1. She had further surgery on 18 May 1993 when her jaw was reconstructed using part of her rib. During that operation nerve damage was caused, and she suffered from Bell’s Palsy. She had problems for some months then recovered partially but still has problems with raising her right eyebrow. Future surgery will be necessary to remove an overhanging fold of skin.

1. She suffered bad pain for about 12 months until it became more moderate. After that, for about 6 months, the pain was regular and still required painkillers. Her pain level has been relatively stable for the last 2 to 3 years. She describes it as more than mild but not severe, and she takes Panadeine 2 or 3 times a week. She continues to need to be careful not to bump the graft site otherwise she suffers pain.

1. The plaintiff required extensive medical and surgical treatment and physiotherapy.

1. Had liability been proven, I consider that the appropriate award for pain and suffering and loss of enjoyment of life would have been $40,000.

1. An appropriate award for interest thereon would have been at the rate of 2% from September 1992.

1. The plaintiff does not have a very good bite and cannot bite into anything hard. She will require crowns on her teeth. I find that it is more probable than not that the plaintiff will undergo further dental surgery. The sums of $15,066.00 and $2,302.50 claimed by the plaintiff in the schedule of damages would have been appropriate.

1. The parties have agreed the sums for medical expenses, pharmaceutical expenses, special damages, Griffiths v Kerkemeyer and interest thereon, and travelling expenses.

1. An appropriate award of interest on non-HIC special damages would have been $560.00.

1. At the time of the incident the plaintiff and her husband operated a mobile knife sharpening business and were establishing in the Emerald/Blackwater area. The plaintiff sold knives, answered the mobile phone and attended to ordering and other paperwork. She was not able to be a part of the business after the incident and for 14 months thereafter while receiving medical treatment and physiotherapy in Brisbane. For about 18 months she was not able to resume her past level of involvement in the business, and most of the time her husband attended to the business on his own.

1. Mr Veitch expressed the opinion that it took about 2 years to re-establish the run because country people were cautious when they did not return as expected.

1. The income tax returns do not assist the conclusion that the plaintiff’s injuries had a considerable impact on the business.

1. The particular difficulty is to assess what the income would have been if the incident had not occurred. At the time of the incident the plaintiff and her husband combined their business with touring, but were in the process of building it up.

1. It is impossible to calculate past economic loss with any precision. The sum claimed is $25,000. I consider an appropriate sum for past economic loss would have been $15,000.

1. I consider that future economic loss will be minimal because the plaintiff and her husband can arrange for the surgery to take place at a time when the business can be located in an area which allows reasonable access by the plaintiff’s husband. Some loss will be occasioned by her absence. A sum of $2,000 would have been appropriate for future economic loss.

1. I dismiss the plaintiff’s claim.