Wieland v Commonwealth of Australia (Department of Defence)
[2012] WADC 156
•2 NOVEMBER 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WIELAND -v- COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE) [2012] WADC 156
CORAM: BRADDOCK DCJ
HEARD: 5-18 JUNE 2012
DELIVERED : 2 NOVEMBER 2012
FILE NO/S: CIV 3506 of 2010
BETWEEN: ANTON WIELAND
Plaintiff
AND
COMMONWEALTH OF AUSTRALIA (DEPARTMENT OF DEFENCE)
First DefendantTRANSFIELD SERVICES LTD
Second Defendant
Catchwords:
Negligence - Workplace injury - Occupiers liability - Occupation and control - Naval base - Reasonable response to hazard - Failure to inspect workplace - Causation - Whole person impairment - Assessment of damages
Legislation:
Civil Liability Act 2002 s 5C
Occupiers Liability Act 1985 s 5, s 6, s 7
Workers' Compensation and Injury Management Act 1981
Result:
Judgment for plaintiff against second defendant
Action against first defendant dismissed
Representation:
Counsel:
Plaintiff: Mr T Lampropoulos SC
First Defendant : Mr T Offer
Second Defendant : Mr D R Clyne
Solicitors:
Plaintiff: Vertannes Georgiou
First Defendant : Norton Rose Australia
Second Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628
Alvarez Cabrera v PIV'S Engineering Pty Ltd [2012] WADC 62
Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839
Department of Housing and Works v Smith (No 2) [2010] WASCA 25
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18
Hanna-Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174
Houlahan v Pitchen [2009] WASCA 104
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Jones v Bartlett (2000) 205 CLR 166
Kondis v State Transport Authority (1984) 154 CLR 672
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Laing O'Rourke (BMC) Pty Ltd v Kirwan [2011] WASCA 117
Lawson v Flavel [2001] WASCA 272
MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998)
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
O'Connor v Commissioner for Government Transport (1954) 100 CLR 225
Public Transport Commission (NSW) v Perry (1977) 137 CLR 107
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431
Shepherd v Co-Operative Bulk Handling Ltd [2001] WASCA 413
Strong v Woolworths Ltd t/as Big W [2012] HCA 5
Struthers v Harris [1983] WAR 123
Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234
Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213
Traeger v Harris [No 4] [2011] WADC 45
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Waverley Council v Ferreira [2005] NSWCA 418
Wylie v South Metropolitan College of TAFE [2003] WASCA 34
Wyong Shire Council v Shirt (1980) 146 CLR 40
BRADDOCK DCJ:
Introduction
On Sunday morning, 14 December 2008, Mr Anton Wieland fell down four steps at his place of work and injured himself. Mr Wieland was working as a senior chef in the 'Senior Sailors' kitchen' at the naval base, HMAS Stirling, Garden Island, just south of Perth. He had commenced his duties at 6.15 am in the galley, and at around 9.15 am he went from the galley up the corridor to use the toilet. On the way to those facilities, there are four steps going up from the galley. On the way back, Mr Wieland lost his footing on the top step and fell down all four steps. He describes hitting the right side of his head on the wall, and the next thing he knew he was on the floor, in a lot of pain, and hearing music from the kitchen. He was in severe pain, afraid he had done serious damage to his back and lay there as still as he could. He could not reach his phone. He was not found until about 10.15 am.
Ms Ann Gooch, a fellow employee, found Mr Wieland when she got to work. She assisted him and summoned help. She prevented others using the stairs. She observed the rubber strip on the top step had come up and was 'bowed'.
The steps had a rubber strips fixed around the leading edge. On examination later that morning, Mr Atilla Virga found that the rubber strip attached to the leading edge of the top step was coming away. He said it was hard to see at first. He had to move the rubber strip with his hands. He took some photographs later in the following week, in company with the health and safety officer.
Mr Wieland was employed by Transfield Services (Australia) Pty Ltd, (Transfield). Transfield were contracted to provide catering services, included with other 'garrison support services' to the Navy at Garden Island. Transfield employed chefs, kitchen hands, and a manager for the mess. This was Ms Morgan, a naval officer, who was contracted out to Transfield.
Mr Wieland had previously been employed by another company, Spotless P & F Pty Ltd (Spotless), as a chef from April 2006 to July 2008, when Transfield took over the contract for these services from Spotless. Spotless will figure later in these reasons in another guise.
As a result of the fall, Mr Wieland was admitted to Rockingham District Hospital that morning suffering from pain in his right hip and buttocks, his right knee, his neck and bruising and swelling over the whole of his right side. He was discharged on the same day. He made a claim for workers' compensation the following day.
Mr Wieland's claim is framed against both his employer, Transfield and the Commonwealth of Australia, represented by the Department of Defence.
The claims
Mr Wieland claims against both the Commonwealth and Transfield for the injuries he sustained. They are pleaded against both under the Occupiers Liability Act 1985 (OLA), and also against Transfield in negligence, by breach of the Occupational Safety and Health Act1984 (OS&HA), as well as the OLA.
Against both defendants, particulars of breach of duty are in almost identical terms:
It is alleged that each of Transfield and the Commonwealth:
1.failed to secure the rubber strip on the edge of the step;
2.failed to carry out any repairs, servicing or maintenance of the rubber strip on the edge of the step;
3.failed to erect or cause to be erected handrails on both sides of the stairs;
4.failed to adequately illuminate the stairs;
5.failed to warn of the danger of slipping and falling whilst using the stairs;
6.failed to carry out any inspection of the stairs to determine whether the stairs were safe to use;
7.failed to identify and assess the hazard associated with using the stairs;
8.failed to replace the rubber strip on the edge of the step with a metal strip secured by nails or screws;
9.failed to incorporate a stable nonslip service or surface on the edge of the step;
10.failed to adequately supervise the plaintiff in his work and failed to ensure the stairs were safe to use; and
11.permitted the plaintiff to use the stairs despite the unsafe circumstances described in paragraphs above.
As against Transfield only:
12.failed to provide or maintain a workplace system of work not in breach of s 19 of the OS&HA;
13.failed to provide information, instruction and training to and supervision of the plaintiff as was necessary to enable him to perform his work in such a manner as he was not exposed to hazards in breach of s 19 of the OS&HA.
As against the Commonwealth only:
14.permitted the construction of the stairs which were too steep to be safely walked upon and with a rubber strip on the edge of the step which was loose and which constituted a slip/fall hazard when walked on by the plaintiff or any other users.
The defences - Commonwealth
The Commonwealth, whilst admitting being the owner of a Naval Base at HMAS Stirling, denies that it was the occupier of the senior sailors' kitchen at the relevant time.
The Commonwealth relies on an agreement entered into with Transfield, on 8 March 2007, for the provision of services, including Garrison Support Services, and pleads by reason of the terms of that agreement, it is entitled to be indemnified by Transfield against the claim. Further, the Commonwealth claims a complete indemnity pursuant to the Law Reform (Contributory Negligence and Tortfeasor's Contribution) Act 1947 s 7.
The Commonwealth asserted that Transfield had a reasonable system of inspection to identify hazards in the senior sailors' kitchen. As against Mr Wieland, the Commonwealth says that if the Commonwealth is found to have breached this duty, the injury was caused by his own fault and contributory negligence.
The defences – Transfield
Transfield denies all allegations made by Mr Wieland, and pleads that he was himself negligent. There is no issue that Transfield employed Mr Wieland as a chef, or that he fell down the stairs and suffered injury as a result.
Transfield denies that it was an occupier of the premises.
Transfield denies that Mr Wieland sustained a whole person impairment (WPI) of over 25%, under the Workers' Compensation and Injury Management Act 1981 (WCIMA).
Principles relevant to liability
The applicable principles of law are well established and have not been called into question by counsel in this trial. The issues in this matter arise from the application of those principles to the facts.
Duty of care - Occupiers
The duty of care of an occupier is to exercise reasonable care to avoid risks of physical injury to a person on the premises by reason of any danger due to the state of the premises or to anything done or omitted to be done on them: see s 5(1) of the OLA.
An occupier of premises is defined to mean a person occupying or having control of land or other premises. The common law in relation to occupation is not materially altered under the OLA. Occupier's liability is essentially based on control of the premises or part of the premises. A licensee may qualify as well as a tenant, and indeed persons with lesser interests over land have been found to be in occupation. It is trite to say that several people may occupy land concurrently. The liability of a landlord is specifically provided for by s 9 of the OLA, requiring a landlord to show the same care in relation to dangers arising from failure on his part to carry out any responsibilities of maintenance and repair of the premises, as required of an occupier.
The duty arises under s 5 of the OLA in respect of 'dangers which are due to the state of the premises or anything done or omitted to be done on the premises'. The duty of an occupier of premises under the OLA shall not be restricted or excluded by the provisions of any contract to which the person to whom the duty is owed is not a party: s 7 OLA.
In determining whether an occupier has discharged that duty of care, s 5(4) of the OLA sets out a number of matters to which consideration shall be given.
The personal injury amounting to the harm in this case was suffered by Mr Wieland after 1 January 2003. As a result the Civil Liability Act 2002 (CLA) also applies to his claim.
The CLA sets out, in s 5B(2), factors to be considered when determining liability. These differ from those set out in s 5(4) of the OLA.
There is an issue as to the interrelationship between these two provisions, s 5(4) of the OLA and s 5B(2) of the CLA, as they apply to a claim against an occupier, which is yet to be resolved by the Court of Appeal in this State: see Department of Housing and Works v Smith (No 2) [2010] WASCA 25 [19] (Pullin JA) and [63] (Buss JA). Both of these provisions do, however, reflect matters to which the common law has regard when determining breach of duty of care under general common law principles of negligence.
Counsel did not argue that there was any material difference of principle which could affect the considerations in the trial. There was sound sense in this approach. I am of the view that no different result would be reached whether the common law, s 5(4) of the OLA or s 5B(2) of the CLA were to be applied: see Department of Housing and Works v Smith (No 2) [20], [85] ‑ [88]. In my view, it is clear that s 5B(1) and s 5B(2) of the CLA reflect common law principles and that the matters set out in s 5B(2) are, in substance, a reiteration of Mason J's remarks in Wyong Shire Council v Shirt (1980) 146 CLR 40, 47– 48. See also: Waverley Council v Ferreira [2005] NSWCA 418 [27] (Ipp JA) (with whom both Spigelman CJ and Tobias JA agreed).
The duty of care owed by an occupier of premises is a duty of reasonable care: see s 5(1) of the OLA; Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431, 480 (Kirby J); Jones v Bartlett (2000) 205 CLR 166.
At common law, the court is required to identify what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [192]. That is also what the court must do pursuant to s 5B(1) of the CLA: Waverley Council v Ferreira [27]; Department of Housing and Works v Smith (No 2) [87] and [88] (Buss JA).
Reasonable care is assessed prospectively, and not by applying the benefit of hindsight: Jones v Barlett [20]; Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [18], [65] and [66]. The same general principle applies to claims pursuant to the CLA: Adeels Palace Pty Ltd v Bou Najem (2009) 260 ALR 628 [31] and Department of Housing and Works v Smith (No 2) [34] (Pullin JA); [87] and [88] (Buss JA).
On the pleadings, occupation of the premises by Transfield was denied. No argument was presented at trial in support of its position on this issue. In fact, counsel for Transfield impliedly conducted his case on the basis that Transfield was both employer and occupier.
Duties of care - Employers
The legal framework is well established. An employer owes a common law duty to its employees to take reasonable care for their safety: Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 [34].
The duty includes an obligation 'to take reasonable steps to provide … a safe place of work': Kondis v State Transport Authority (1984) 154 CLR 672, 680. The duty is 'that of a reasonably prudent employer': Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301, 307 - 308.
The duty is not to 'safeguard a worker completely from all perils': Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 [19] (French CJ and Gummow J); see also MR & RCSmith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt[No 2] [2012] WASCA 110, [156] (Murphy JA).
The duty to take reasonable care requires an employer to take reasonable care to 'avoid exposing [its employees] to unnecessary risks of injury': Czatyrko v Edith Cowan University [2005] HCA 14; (2005) 79 ALJR 839 [12]; Hamilton v Nuroof (25).
The standard of care is not a low one: O'Connor v Commissioner for Government Transport (1954) 100 CLR 225, 230.
Reasonable foreseeability of a risk is to be determined objectively: Roads and Traffic Authority (NSW) v Dederer [70].
The statutory duty under the OS&HA is found in s 19(1) which provides, relevantly:
19.Duties of employers
(1)An employer shall, so far as is practicable, provide and maintain a working environment in which the employees of the employer (the employees) are not exposed to hazards and in particular, but
without limiting the generality of the foregoing, an employer shall -
(a)provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, the employees are not exposed to hazards; and …..
The word 'hazard' is defined in s 3(1):
hazard, in relation to a person, means anything that may result in -
(a)injury to the person; or
(b)harm to the health of the person;
practicable means reasonably practicable having regard, where the context permits, to -
(a)the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and
(b)the state of knowledge about -
(i)the injury or harm to health referred to in paragraph (a); and
(ii)the risk of that injury or harm to health occurring; and
(iii)means of removing or mitigating the risk or mitigating the potential injury or harm to health; and
(c)the availability, suitability, and cost of the means referred to in paragraph (b)(iii);
risk, in relation to any injury or harm, means the probability of that injury or harm occurring.
As Murphy JA said in Laing O'Rourke (BMC) Pty Ltdv Kirwan [2011] WASCA 117:
It follows from the definition of 'practicable' that the obligation imposed on an employer by s 19(1) is an obligation to provide and maintain a working environment in which its employees are not exposed to hazards only so far as is reasonably practicable. The words 'reasonably practicable' are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, 322 (Gaudron J). Hindsight may mislead. As Harper J said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 - 124, in relation to the equivalent provision in the Victorian legislation:
The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.
That approach has been adopted in Western Australia: MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998) 11; Shepherd v Co-Operative Bulk Handling Ltd [2001] WASCA 413 [55].
The duty imposed on an employer by s 19(1) is not an absolute duty: Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 251 (Brennan J); Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100, 108, 109 (Wallace J, Rowland J agreeing); Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45]; Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213 [59].
Counsel for Mr Wieland referred in opening to the statutory duty overlapping the common law duty, and addressed no further submissions to it. I consider that in this case, there is no material practical difference between the duty of care owed at common law and the statutory duty under the OS&HA.
Similarly, the principles applicable to an occupier and an employer overlap, as far as the allegations in this situation against Transfield are concerned. There were potentially three 'duties' of care existing concurrently, neither displacing the other. All claims are based on the same facts, and would merge together, if occupation by Transfield of the premises is established: Public Transport Commission (NSW) v Perry (1977) 137 CLR 107, 132 (Gibbs J).
Breach of duty
In Wyong Shire Council v Shirt (47 ‑ 48), Mason J referred to the way in which a tribunal of fact might determine a reasonable response to a foreseeable risk. His Honour said (48):
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.
In Roads and Traffic Authority (NSW) v Dederer [69] Gummow J (with whom Heydon J agreed), observed:
What Shirt requires is a contextual and balanced assessment of the reasonable response to a foreseeable risk. Ultimately, the criterion is reasonableness, not some more stringent requirement of prevention.
The obviousness of the risk and the remoteness of the likelihood that others will fail to observe and avoid it, are often factors relevant to a judgment about what reasonableness requires as a response to a foreseeable risk.
In some circumstances, reasonableness may require no response to a foreseeable risk. See Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234 [35] - [36] (Gleeson CJ, McHugh, Kirby, Hayne and Heydon JJ). Their Honours also said [37]:
The factual judgment involved in a decision about what is reasonably to be expected of a person who owes a duty of care to another involves an interplay of considerations. The weight to be given to any one of them is likely to vary according to circumstances. If the obviousness of a risk, and the reasonableness of an expectation that other people will take care for their own safety, were conclusive against liability in every case, there would be little room for a doctrine of contributory negligence. On the other hand, if those considerations were irrelevant, community standards of reasonable behaviour would require radical alteration.
This case involves the application of these principles, which were undisputed, to the facts proved by the evidence.
The issues
Having regard to the pleadings, the evidence and the submissions at trial, I consider that the following issues are those which I need to determine relevant to liability:
1.How did Mr Wieland come to fall down the steps? Did the condition of the stairs in fact cause Mr Wieland to fall?
2.Was the Commonwealth an occupier of the corridor leading to the toilets in the Senior Sailors' Mess at the relevant time?
3.Did the condition of the steps at the time of Mr Wieland's fall constitute a 'danger' within the meaning of the OLA? Did that condition amount to a breach of an employer's duty to provide a safe place of work?
4.What was a reasonable response by either defendant to the condition of the steps? Was there a breach of duty by either of them?
5.If both are liable, what proportion of responsibility do they bear?
6.Is Transfield obliged to indemnify the Commonwealth under contract?
7.Contributory negligence: did Mr Wieland fail to take proper care for his own safety?
Firstly, before considering the evidence in detail, I find that Transfield was obviously in charge of running the Senior Sailors' Mess and was clearly in occupation of the Senior Sailors' Mess, for this purpose, at the time of the fall. Transfield was contracted to provide such services and had a licence to occupy the premises to do so. I find that the work area included the corridor leading to the toilets, as it was used by all kitchen staff during their shifts. No evidence or suggestion contrary to these propositions was put forward on behalf of Transfield at trial. Rightly so, as this much, on the facts, was self‑evident.
The evidence on liability
At the conclusion of the trial, there remained an evidential issue, concerning the admissibility of some of the evidence of Dr Chew. Dr Chew is an engineer and an ergonomist who was called by Mr Wieland and gave evidence prior to the trial. An objection was taken by counsel for both defendants to the admissibility of Dr Chew's response in answer to a question (3 in his second report, 1 December 2011) as to what system of inspection and/or maintenance was required to minimise of the risk of a rubber strip coming loose from the edge of a step in a pedestrian traffic area. He gave an answer in these general terms:
[A] system of inspection where the rubber strips on the stairs are inspected at regular intervals by a person charged with responsibility would minimise the risk of the rubber strip coming loose without being detected. A system of maintenance work prompt remedial action is taken …
The objection was on the basis that the issue was not one for expert evidence, and that any system of inspection required was a matter of commonsense, rather than expertise of the kind possessed by Mr Chew. The objection was expanded by reference to the pleadings further to say that the issue of a proper system of inspection was not pleaded against the defendants, the pleading being limited [at par 11.6], to a failure to carry out any inspection of the stairs to determine whether they were safe to use.
In my view, the objection is well founded. Dr Chew's response to the question was generalised, non-specific, and could be of no assistance in any event. It was not shown to be within his area of expertise, if there is any such area of expertise. The matter was not pleaded, and no evidence was called as to general practice in terms of such inspections, or any evidence of any recommended practices by the suppliers of a rubber stripping for steps or any other source. Clearly, any system of proper inspection depends upon the facts and circumstances, and is a matter for determination by the court, if relevant, having found the facts.
Anton Wieland
Mr Wieland had been working at the premises for over 2 1/2 years at the time of his accident. At first, he had worked five days a week for Spotless, and later with Transfield, he worked mainly weekend shifts, lasting 12 hours each day, in the kitchen and also in the ward room. Occasionally, he also did bar work.
He said that he would use the corridor leading to the toilets between 8 to 10 times in a shift. He had, about eight months prior to his accident, noticed that there was no hand rail originally for the steps, and had identified that one was required. He pointed it out and a rail had been provided.
He said that on the morning of 14 December 2008, he went to grab the rail as he was losing his footing. His evidence was that when he went up the stairs to go to the toilet he did not observe anything unusual. His description of the accident was in the following terms:
I lost my footing on the first step. I did not experience any tripping sensation. I felt my foot slipping on the on the edge of the top of the step.
In cross-examination, he elaborated to say that he believed that he put his left foot on the top step strip, and the sensation did not feel like a slip, it was more of a give way and it was an unusual sensation. He tried to grab the hand rail but he was already falling.
He also said that the stairs at that location were dimly lit and there was only one light on the top landing which was illuminating the steps. There was some natural light also coming in from the side window.
He recalled that a 'Navy person' would attend the senior sailors in the galley every two to three weeks and ask if there was anything in the kitchen that needed repairing. He said that nobody from Transfield did this. He said Transfield employees were expected to report any maintenance problem and there was a daily communication or handover book in the kitchen for this purpose. For urgent maintenance or repairs he would contact Mr Attila Virga or somebody in the Transfield office in another part of the naval base. The problem would then be rectified. Mr Attila Virga was his supervisor.
Ann Gooch
Ms Gooch is a dining room attendant at HMAS Stirling. She started working there in January 2008. On 14 December she arrived at the Senior Sailors' Mess at about 10.10 am, walked through into the kitchen and found Mr Wieland lying on the concrete floor on his back. She said he was at the bottom of the stairs his legs were pointing towards the stairs and he had a cut to his right temple with blood on it. He was very dazed. She stayed with him.
The next person who attended was Ms Mandy Morgan, who assisted. Ms Gooch put out signs to prevent anybody using the steps and said that she realised when she got to the top step that the rubber had come away. She described it as 'it looked like it had come forward and had bowed'. She further said that the next thing she did was write a statement while the events were clear in her head; she gave that statement to a leading seaman; she has never seen it since. She provided a further statement to Mr Virga the following week. He was her supervisor. She describes the stairs as now having 'stripping' across them. The rubber is inside metal stripping. She described that the area lighting was dim.
Ms Gooch impressed me as a 'no nonsense' woman and I have no reason to doubt what she recounted of the events that morning.
Amanda Morgan
Ms Morgan had worked at Garden Island for 5 1/2 years in the senior sailors' bar. She was working in the senior sailors' mess in 2008 and attended work on 14 December. Having arrived at work and logged on, she went down to the kitchen to say good morning to the kitchen staff, and when she got the top of the stairs she saw Mr Wieland on the floor and Ms Gooch hovering around him. She stayed with Mr Wieland when Ms Gooch went off to get help. She did not inspect the area or the steps after the fall.
She described the lighting in the area as being very shadowy, there is room to the left of the stairs, a staff room, where there are sometimes lights, sometimes not, sometimes curtains are drawn. She said the lights would have been on, she was uncertain precisely of the situation.
She confirmed that when there is a maintenance problem it is either reported to the boss, or there is a hotline to ring the Defence Estate Management System (DEMS) for this. It is then attended to by others.
Atilla Virga
Mr Virga was the domestic services coordinator for Transfield at the relevant time. His duties included organising and coordinating the accommodation, cleaning and housekeeping and the catering services on the island and liaising with the client, carrying out work safe audits and food safety audits. As part of his duties, amongst other locations, he inspected the senior sailors' mess. He was aware of the corridor and steps leading to the bathroom facilities. He said he did not specifically inspect the steps, when asked, he said he had instructions to make sure that the access to the kitchen was free from obstructions and nothing was blocking the way. He explained the system of reporting any problems to the DEMS. He said 'I didn't carry out steps inspections or carpet inspections or curtains falling on anyone or whatsoever, sorry'. On the same point, under cross-examination, he said he was concentrating on the accesses (to the premises). He said it would have taken a few days to do a proper inspection if he had to go there and lift up everything and make sure everything was stuck or glued down. The steps were used by chefs, dining room attendants and the mess manager on a daily basis.
On some occasions, he would delegate inspections to the catering manager or the chief petty officer. They were naval officers, who were employed by Transfield. He described the situation has being 'complicated'. Mr Virga said his inspections were weekly. The results were compiled in a workplace inspection form.
He became aware of Mr Wieland's fall when he was telephoned, out of hours. He attended as soon as possible after accident. He then went on to the hospital. He telephoned Denise Wieland and met her at the hospital and then went home. When he attended at the Senior Sailors' Mess, he looked at the stairs. His description was that 'It was coming away … From the … it was hard to see actually a little bit so I - you had to move the rubber edge'. He also said it was coming up and it was not difficult to move. He was somewhat uncertain about how much had come away but said a length of 35 cm to 40 cm and he could lift it 2 cm to 3 cm; he said when he got there the lights were off, he was not sure who had turned them off. Under cross-examination he said it was hard to tell anything was wrong with the step and he actually had to physically lift it up to see if there was something wrong with it. It was secured at the ends.
The following week there was an investigation and photos were taken. Those photographs were tendered in evidence; they were dark, and it is difficult to discern much detail. He was uncertain precisely of the date of the inspection, but he identified his wristwatch in the photographs. He confirmed that there was no work done on the steps between the incident and his inspection. He also identified an example of the checklist that was used for his inspections, this was a version dated September 2003, which would have been used at the time. Those forms were filed in the accommodation office in the Junior Sailors' Mess by himself or the catering manager. His evidence was that he would have done weekly inspections in the months of September, October, November and December of 2008. He never noticed any problem with the strips on the steps and he used the stairs himself at the time. Following the inspection, a DEMS request for repairs was raised, he believes by Mr Carl Waters. As a result, he said he believed that the strip was screwed down, but he was not happy with it.
I found Mr Virga to be somewhat unsatisfactory in his presentation as a witness, he gave the impression of a man who was generally hurried. His response to the (implied) suggestion he should have inspected the steps was, in my view, almost flippant.
John McGuggon
Mr McGuggon was employed by Hartec Engineering to carry out maintenance on defence facilities and had been so for 6 1/2 years. He had done work at the Naval Base on Garden Island. In December of 2008, he said he went over there and found one of the stair noses with nosing coming loose and he 'just ripped it of out of the way'.
He described it peeling up because the glue had given way and he just pulled it up. He said that normally you should not be able to rip up the strips easily. He said there was no point in trying to glue it down again. He described old strips as getting stiff and new ones being nice and flexible and soft. He denied that he inserted any screws to hold it down and said they should never be screwed down. When challenged on this, he said his recollection was not 100% certain. He had himself been in receipt of workers' compensation for two years and taking painkillers. When shown later documents showing that the strip on the stairs was attended to on 24 April 2009, he had considerable uncertainty as to when he had attended and what had been done.
The documents show he attended on instructions of Spotless and completed an urgent job on 16 December 2008. The job was described as 'rubber liner off stairs'.
The accident occurred on 14 December, Sunday. The photographs must have been taken on the Monday or Tuesday before Mr McGuggon arrived. I did not find Mr McGuggon to be a reliable witness in his detailed recollections of what he did to the step at that time.
Renee Ward
This lady was a supervisor for Spotless who allocated jobs to contractors under contract to the Naval Base. In December 2008, Spotless handled any work requests for maintenance from the Naval Base, which may be phoned through. She approved the work on the steps, by which she meant she assigned the job which was urgent requiring to be completed within two days. The work description was 'the rubber liner is coming off the stairs someone has been taken to hospital due to a fall'. She confirmed that the job was completed, urgently and that it was not new work, rather fixing. The document also notes a further communication on 21 January 2009 concerning an issue with the work that was done on the stairs. A further work direction, of a routine nature, [by which she meant 14 days rather than 48 hours], was approved on 18 December 2008 for the replacement of a light above the stair in the galley. This was assigned to an electrical subcontractor. Again on 24 April 2009, she identified a further maintenance request described as '‑ rubber strips coming off and need to be repaired'.
Dr Stephen Chew
Dr Chew is an engineer and ergonomist. He compiled two reports on the steps considering Australian Standards and building codes and he also looked at the lighting. He was asked to comment on the nosing or non‑skid strips for which there are no specifications.
He did not have the benefit of examining the step or strip in question or the fixing of it at the time. His evidence was therefore in general terms. The deterioration of glue is a slow process such that if the rubber has moved it should be able to be seen, because the glue surface will pick up dirt. He said there is a forward force from a pedestrian's leading foot striking the ground and it was possible that Mr Wieland's foot striking the rubber that caused it to come off. His view was it was more likely that if there was a slight movement there would be evidence of dirt building up over time.
Dr Chew's evidence, which was not disputed, was that the steps complied with the relevant Australian standards and building codes, as to dimensions and having a stair tread with a non‑slip finish fitted with an adequate non-skid strip. There are no specifications as to what constitutes a non-skid strip. Such non-skid strips are to be secured to the nosing edges of stair landings or stair treads. It is acceptable to fix rubber strips to stair treads with glue, providing the glue is suitable and the surfaces are properly prepared. A rubber strip so attached firmly would not constitute a slip hazard.
Mellena Morgan
From 2008 to 2010 Ms Morgan was the mess manager of the Senior Sailors' Mess at Garden Island. She was in the Navy, holding the rank of petty officer. But as a member of the defence force she was required to work for Transfield, described as a 'member required in uniform'. She reported to Mr Virga. As mess manager she looked after the bar, the Senior Sailors' recreational area and eating area and had two sailors working for her. She was also in charge of Transfield staff, running the dining room. In terms of occupational health and safety, she would report any concerns through the DEMS system, and would inspect her own area. She believed that each employee inspected their own area, and that the civilian chef would do the kitchen. There were inspections once a month or thereabouts by Transfield staff, which she was not directly involved in. Those who came to do the inspection would report to her office first. They were civilians. She was not sure precisely what they inspected. Her evidence was that there was a sign in the corridor stating that no unauthorised personnel were allowed beyond that point, because it was the galley. It was on the left-hand side wall going down the corridor towards the stairs. She would use the corridor and stairs once a day up and down, and had no issue with the stairs in question. The Transfield cleaner was responsible for cleaning that area, at least three times per week. She assumed that it would include the steps, but she never saw her at that point. The cleaner also cleaned Ms Morgan's office.
The whole mess area came under her responsibilities as a manager, including safety issues.
Christopher Ellery
Mr Ellery was the catering hospitality manager for Transfield. He was the supervisor and Mr Attila reported to him. His job was to ensure that the staff followed Transfield's requirements and defence requirements and complied with occupational health and safety law. He did that by checking the paperwork at the bases, attending toolbox meetings and attending to reports of hazards and collating the paperwork. He confirmed that they were monthly inspections at each workplace, as evidenced by the checklist, exhibit 10. Transfield provided cleaning. Mess toilets were used by kitchen and other staff.
After the incident in December 2008 on the stairs, he inspected the location of accident. This was part of an investigation. 'We handed the results, including inspection sheets and anything relating to it over to HSE people'.
He inspected the steps. He said that he could not see anything wrong until he physically stood on it. He said that it tilted when you stepped on it but then went back into place. He noticed nothing about any detail and never looked at the adhesive. He looked at the step, tried to see how it happened.
He was unclear about the exact cleaning schedule for the floors in the corridor. He believed they should be mopped on a daily basis and swept. He believed that steps should have been inspected as part of the general Transfield inspections, despite exhibit 10.
He did not check that repairs were undertaken, he only checked that the area was cordoned off at that time. He confirmed that DEMS was the system for repairs. Attila Virga was the coordinator for domestic services who should have attended to that at the time. He knew nothing of any ongoing problems with the steps.
He was part of the team that investigated the accident and a report would have been prepared by Mr Waters, the health and safety officer. He did not see the report. The inspection sheets for the month of December 2008 would also have been given to Mr Waters at that time. He has since looked for these documents and cannot locate them.
Bradley Mercer
In December 2008, Mr Mercer was the occupational health and safety advisor to 'defence support' at Fleet Base West. He described defence support as looking after the infrastructure on the defence bases, rather like the landlords to the defence personnel as tenants. The facilities at Garden Island were run by various units, called 'resident units' and had varying chains of command within the Navy. In 2008, he had responsibility for coordinating occupational health and safety programs, advising the manager of defence support in the relevant area and also in relation to common areas such as roads. He knew the Senior Sailors' Mess at Garden Island. He said had no role in relation to the Senior Sailors' Mess, because a contractor had taken over the galley area as an entity and they had their own managers under the contract. There was a system called 'CapMan' to ensure that contractors were carrying out their health and safety requirements. This was a reporting system where they would internally audit processes of the contractor. This amounted to checking what was done on a monthly basis at interview. He could not recall that Transfield were not complying with occupational health and safety guidelines. He looked at the island as a whole, rather than the galley. The checks on the ground were left to Transfield, as they have their own health and safety manager. There was an occupational health and safety management plan for HMAS Stirling. Defence support took charge of the contracts, looked after the buildings and facilities and provided services to HMAS Stirling and the other units on Fleet Base West. It was a complex management structure involving many different entities using Garden Island in different capacities for different purposes. There was a contract manager on Garden Island to look after contractors employed by defence. The occupational health and safety management plan recognised there was a duty of care owed to defence contractors as far as reasonably practicable. The commanding officer had to establish an occupational health and safety committee to achieve the safest possible work environment. There was a health and safety coordinator responsible to the commanding officer. Mr Mercer's duties were to advise defence support base manager at HMAS Stirling. That did not include the messes as they were under the management of Transfield. Checking on how well they were performing at the premises was done through the CapMan system of internal audits. There was no inspection conducted by him or his department of contractors' premises. Contractors were involved by representatives being brought into those committees.
As far as the galley was concerned and the Senior Sailors' Mess, maintenance of the building was carried out by Spotless. If there was an issue a work order called DEMS was raised and then actioned by Spotless. Such requests go through defence support. Any infrastructure issue in any building causes the person in charge of the area to raise a DEMS work order by ringing or logging on‑line which goes to a call centre in Leeuwin on the job gets given the Spotless.
Colemand and the contract for garrison support services
Nigel Colemand described himself as a public servant with the Department of Defence. He was a senior contracts and governance officer for the garrison support services contract. He was responsible for the management of the garrison services contract with Transfield. The contract was tendered in evidence, exhibit 22, in electronic form. The agreement was made on 8 March 2007 and is the Western Australia garrison support contract. Attached to the contract is a licence granted to any contractor to use the areas specified in the contract. This licence gives personal rights to the contractor, does not create any estate or interest in the area concerned, does not create a relationship of landlord and tenant, and does not confer exclusive possession on the contractor. The Commonwealth retains rights to exclude the contractor from the licensed areas, but most endeavour not to deprive the contractor of the whole or a significant part of the area unless, it is necessary to do so for defence purposes or security purposes. The licence provides for the concept of 'shared facilities', shared by the contractor and the Commonwealth or the contractor and other Commonwealth contractors. The specific areas included in the contract at Garden Island are listed in sch 5 pt C of the contract, and include the Senior Sailors' Mess. The schedule records in this instance that the percentage of the building to be used by the contractor is 100%, that the whole area is fully utilised, operated by the contractor and 100% of the floor area of the building is managed by the contractor. There was no suggestion in evidence that the facilities were 'shared' facilities for the purposes of the operations of Transfield, except to the extent that the DEMS system would require Transfield to use Spotless for maintenance purposes and permit access for maintenance purposes. Mr Colemand confirmed that Transfield provided many other services, in addition to hospitality and catering, including cleaning. A separate contract governed maintenance.
The contract provides that the contractor will undertake such maintenance as is necessary to keep the premises in good functional repair and condition, or contribute to the cost of maintenance works carried out by the Commonwealth, gives rights to the Commonwealth to undertake repairs where the contractor fails to do so, and that the Commonwealth is not under any obligation to maintain the area or the fittings [cl 1.1.2]. The contractor is obliged to maintain certain insurances and is required to indemnify the Commonwealth from all claims or liability arising from any damage, loss, injury or death occurring in the licensed area except to the extent that the Commonwealth caused the damage, loss, injury etcetera by a negligent act or omission [cl 7.1].
The contractor is bound to indemnify the Commonwealth against any liability for all claims by a third party in respect of loss of or damage to property or injury to or death of persons caused by or to the extent arising out of the acts or omissions of the contractor in connection with the contractor's activities, provided that the contractor's responsibility to indemnify the Commonwealth would be reduced to the extent that an act or omission of the Commonwealth, the contract authority or another contractor may have contributed to the loss, damage, injury or death.
The contract provides that the commanding officer of the Base has 'command responsibility' to ensure compliance with occupational health and safety requirements for all activities on the site of his responsibility, including the activities of the contractor. In this regard, the contractor is to ensure compliance with site-specific requirements and is to work in consultation with the commanding officer or his representative to provide necessary assurances of the contractor's compliance. The contractor remains responsible for ensuring all activities are undertaken in a safe manner and complying with relevant occupational health and safety legislation (pt C sch 10.5 under the heading 'occupational health and safety').
Findings of fact on liability
The fall
As was observed in Hanna-Pauley v AMP Shopping Centres Pty Ltd[2007] WASCA 174 [29], even properly constructed stairs inherently pose some degree of danger to those who use them.
I find that Mr Wieland fell because he lost his footing on the top step. His evidence was to that effect. He did not give a particularly detailed account, but I accept that the incident would have occurred very quickly. The strip on the leading edge of the top step was seen by Ms Gooch immediately after the fall to be raised. It was found by Mr Virga to be capable of being lifted by his fingers, although at that time it was hard to see any problem and the strip was secured at both ends.
I find that the strip moved under Mr Wieland's foot and contributed to his fall. Stairs are dangerous and it is not hard to cause a loss of a person's footing or balance. I find that a small movement of the strip contributed to such loss of balance and thus is a cause of the accident. I reject the suggestion put forward by Mr Hardcastle that weakness in Mr Wieland's right knee from his prior injury and treatment may have caused his fall. This is not supported by evidence and I regard it as speculative.
Mr Wieland was very familiar with the corridor and the steps. There was nothing out of the ordinary to be seen, prior to the time he fell. I find that, although the lighting in the corridor has been described as dim, and a light globe was replaced shortly after the incident, the lighting in the corridor was not a contributory factor to Mr Wieland falling. He did not complain of any difficulty seeing, in connection with his fall. Although he suggested in his evidence‑in‑chief that only one light was on at the time, the photographs taken by Mr Virga a few days later showed two lights in operation. There was evidence of some natural light in the corridor, both from Mr Wieland and other witnesses. I do not consider the lighting to be a determining factor in this matter.
Nobody who ordinarily used the corridor reported having any issue with the steps or seeing anything amiss. I am satisfied that any defect in the strip was not visible to a person ordinarily using the corridor prior to Mr Wieland falling.
Contributory negligence was pleaded, by both Transfield and the Commonwealth, against Mr Wieland. The matter was not pursued energetically at trial. There is no evidence upon which to base any finding that Mr Wieland failed to take proper care for his own safety, the fact that he fell does not constitute such evidence and I reject the claim.
The occupiers
The question to be determined is whether, on the specific facts, the Commonwealth had control of the premises constituted by the Senior Sailors' Mess when Mr Wieland fell down the steps. I do not consider this to be an overly technical question, but it is one that has to take account of the realities and the complex management structures at Garden Island.
Mr Mercer was clear that Transfield had taken over the Senior Sailors' Mess, including the galley area, and had complete management of the area, under the contract. The 'CapMan' system was to monitor this. Transfield had their own health and safety manager. There was a health and safety management plan for the whole of HMAS Stirling which was implemented in March 2007 and which required commanding officers to establish occupational health and safety committees in their establishments. The system was complex, the evidence of it weighed down by jargon. It was a system for managing contracts and also ensuring compliance by contractors with their obligations for health and safety. There were a number of contractors to the Department of Defence, in addition to the contract with Transfield. One of these was a building maintenance contract with Spotless. The system referred to as 'DEMS' operated to enable one contactor to engage another by request over the telephone or online.
The operation of the Senior Sailors' Mess fell entirely upon Transfield, pursuant to the contractual relationship with the Department of Defence. This was no casual arrangement. Maintenance required could be called for by Transfield and would be attended to by Spotless. The contract provides for payment by Transfield for maintenance, although there was no evidence of what actually occurred in relation to that, in practice.
Senior sailors, members of the Navy, were said to use the mess as 'customers' and consume catering and bar services provided.
I find that the Commonwealth was not an occupier of the Senior Sailors' Mess. I have come to this conclusion for the following reasons:
1.Garden Island is and was a Naval Base. Various arms of the Defence Department occupy the base, both uniformed officers and civilian management. Although, on an initial view, it might seem strange to say that the Department of Defence was not an occupier of the entire naval base, the particular facts and circumstances governing the premises in question have to be carefully considered. Whilst the contract reserves rights to the Commonwealth to exclude a contractor, for defence or security purposes, at the time in question, when Mr Wieland was a chef working for Transfield, I find that such rights were not being exercised. The licence gave 100% management and operation of the mess to Transfield.
2.Maintenance through the DEMS system worked to ensure coordination between contractors, and access to Garden Island for outsiders, amongst other things. Spotless coordinated various trades to attend to specific issues. The Commonwealth, specifically the Department of Defence, naval officers or other defence personnel, were not involved on the ground when the maintenance services were provided. I do not consider that the arrangement to coordinate services amounts to practical control of specific designated areas. I do not find that providing for another contractor in this way affected the issue of occupation. Any liability for the negligent provision of those services would be an entirely separate question, which does not arise on these facts.
3.The Navy members on staff of the Senior Sailors' Mess were 'members required in uniform'. They were described as 'embedded' with Transfield, employed and managed by them, for example Ms Morgan, a Petty Officer, but who was employed by and managed by Transfield. I do not find that this arrangement detracted from Transfield's practical and contractual control of the Senior Sailors' Mess.
4.The provisions made for contractual oversight, and coordination as described by Mr Colemand, were for the purpose of ensuring compliance with the obligations under the contract. Transfield was bound by contract to ensure compliance with all statutory requirements, including workplace safety in connection with its operations in the Senior Sailors' Mess. The Commonwealth had in place mechanisms to ensure compliance by Transfield with these obligations. These arrangements do not detract from the practical control exercised by Transfield over the Senior Sailors' Mess.
5.The arrangements with Transfield involved a detailed licence which governed the rights as between Transfield and the Commonwealth. It could not affect the rights of Mr Wieland. But that is not the question. Pursuant to the contract Transfield had possession and control in practise equivalent to many leasing arrangements.
6. Transfield had been operating the Senior Sailors' Mess since March of 2007, and was conducting health and safety inspections on a regular basis. Transfield controlled that process in those premises, and Transfield's own more senior managers, such as Mr Ellery monitored the system. There was no evidence that the Department of Defence or any naval officer, or contracts officer had independently inspected the state of the steps at any time prior to Mr Wieland's fall. I reject Mr Wieland's recollection that 'a navy' person attended to ask about repairs and Transfield person did not.
I find that the Commonwealth had no actual knowledge of any defect in the step in the corridor of the Senior Sailors' Mess, which could have placed on it any other form of duty.
The condition of the steps
The evidence about the step and strip in question is limited. There is no evidence at all as to the nature or age of the glue, the age or construction of the steps or the installation of the rubber strip. There is no evidence of any problem with the edging to the other steps in this location.
There are no detailed observations of the rubber strip or the condition of its glue, after the accident. Mr Virga's photographs and finger testing are of limited value. There were references during the trial to a report compiled and statements taken by Transfield after the accident, but it appears that these documents could not be found.
There is no evidence of any required routine maintenance for such strips, or of the life span of the strips or glue. There is no evidence of any requirements for periodic replacement of such strips.
Dr Chew's evidence was that, in his experience, with this type of anti‑skid strip, there are occasions when the strip does move a little bit because the glue has failed to hold it in place, where it has not moved totally off the nosing edge, and in those circumstances it will tend to pick up dirt, which by implication would be visible. His evidence was that the failure of glue tended to be a progressive event over time and more likely than not evidence of slight movement building up over time would be visible. He agreed that it was a possibility that the action of the plaintiff walking on the stair could have caused it to move, if it were failing.
I have found that the rubber strip on the edge of the step moved slightly. For this to occur, I find that the glue affixing it to the top step must have failed to hold it securely in place. Mr Wieland did not see that there was anything amiss at the time, nor is there any evidence of any visible defect prior to that time from any other person who used the corridor. I find that there was no defect visible to a casual observer prior to him walking back down the corridor and stepping on it.
Was there a breach of any duty of care?
In these circumstances, what does reasonableness require on the part of those responsible for the safety of people using the steps?
Steps or stairs pose well recognised, inherent risks of falling. There are standards set for their construction accordingly. Commonsense and human experience strongly suggests that any obstruction or defect on or close to a step or steps is a potential hazard. The potential risk here was that of tripping, slipping or being unbalanced on the step or off the edge of it. There was a rubber strip fixed to the leading edge of each step and the floor covering was non‑slip in nature.
Transfield suggested that it would not be reasonable to require that such strips be 'prodded and pressed' on a weekly basis. Checking for the potential failure of glue would require closer examination than is provided by walking down the corridor and would have to involve the physical testing of the adhesive power of the glue. Whether there was a breach of the duty is to be assessed without the benefit of hindsight.
It is foreseeable that if the glue on an anti‑skid strip or rubber nosing fails or comes loose it will cause a hazard. If the strip itself were to become worn or fracture or rise up it would also be a hazard. The evidence of Mr McGuggon, which I do accept, was that these strips start life pliable, but become brittle with age. Commonsense and experience, as well as Mr Chew's opinion, would suggest that if glue was failing to hold the strip on the edge of a step, in most cases, it would be likely to be capable of being observed, if an inspection were made, before the strip became loose or moved far from its position. Similarly, the general condition of the strip could be observed.
Mr Wieland is not, in my opinion, as resilient as Mr Holland thought, in adversity. Quite apart from issues of the availability of work, family circumstances, general economic circumstances, in my view, there was a very high probability that Mr Wieland's working life would have been curtailed, or his working capacity reduced, by some other injury or wear and tear manifesting itself either in his back or his right knee which would likely have resulted in depressive illness. For this reason a substantial discount for contingencies is required. I assess this at 50%.
I award compensation future economic loss of $150,000.
Future loss of superannuation
9% x $1,347 gross per week x 70% x 288 = $24,439.
I consider it appropriate to discount future superannuation in the same way as future loss of earnings is discounted for the same reasons, resulting in a future loss of superannuation of $12,220.
Gratuitous services
Mr Wieland has claimed gratuitous services provided by his wife both in the past and on an ongoing basis. I find that in the immediate post‑operative periods, Mr Wieland would have had the need for help on a daily basis at three hours per day. In addition to the immediate post‑operative periods, I find that for 12 months following his accident, he would have required daily assistance, at the rate of two hours per day. I find that otherwise the plaintiff required and requires domestic or other assistance which he claims at the rate of five hours per week. In part this relates to personal help by his wife and in part to the necessity for assistance with heavier domestic and gardening tasks whether provided by his wife or others. Dr Fong recommended four hours per week of domestic cleaning support and two hours per month of home maintenance and gardening support. I accept this as a reasonable way of looking at the problem. I find the claim of five hours per week for future gratuitous services to be reasonable.
There are 14 weeks that are claimed and I consider this to be immediately post‑operative in the year following the accident. I accept the rate of $25 per hour for such assistance is reasonable. This results in $25 x 14 x 7 x 3 hours = $7,350.
A year at 2 hours per day 52 x 7 x 2 x 25 = $18,200.
Otherwise, there are 2 years and 32 weeks where I allow 5 hours per week to the date judgment; 136 x 5 x $25 = $17,000.
Total past gratuitous services = $42,550.
Future services
25 x 5 x multiplier 664.6 = $83,075. These I also discount by 50% for contingencies resulting in $41,500.
Medical and other expenses
I accept that Mr Wieland will have ongoing need for medication in the future, and that $500 per annum is a reasonable sum for the items he may require, I allow $750 for hydrotherapy based on the cost of Mr Wieland attending the public pool, and six physiotherapy consultations per annum at $75 resulting in a total $450. I allow for GP consultations resulting from these injuries at $260 in total but I do not find any evidence to support the ongoing orthopaedic consultations.
I consider that Mr Wieland requires ongoing psychological consultations, I allow for six visits per year at $195 which is $1,170.
In round figures this equates to $3,130 in annual expenses.
The future total is therefore 3130/52 x 674 = $40,569. These I also discount by 50% for the same reasons as the other payments for the future requirements.
Summary of damages assessed
I therefore award damages as follows:
General damages $90,000
Past economic loss $59,862
Fox v Wood component $28,651
Interest on past loss $6,968
Future economic loss $150,000
Past loss of superannuation $5,968
Future loss of superannuation $12,220
Interest on past loss of superannuation $695
Past gratuitous services $42,560
Interest on past gratuitous services $4,958
Future gratuitous services $41,500
Past special damages [agreed] $2,085
Future medical and treatment expenses $20,284
Future travel allowance $500
Total$466,251
Impact of WCIMA s 93K
As set out above, I am of the view that the plaintiff's degree of permanent impairment is 29%. The court can award damages as assessed to the plaintiff: WCIMA s 93K(4)(d).
Conclusions
I will hear from counsel as to the final form of the orders, including the appropriate manner in which to make provision for the repayment of workers' compensation payments, and any variations in the amounts paid since trial.
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