Burton v Brooks

Court of Appeal (NSW)|2011-06-21|Before: Hodgson JA, Macfarlan JA, MacFarlan JA

Judgment 1HODGSON JA : I agree with Macfarlan JA. 2MACFARLAN JA : On 17 February 2008 Mr Troy Brooks, the respondent, fell backwards into an empty swimming pool at a house at Arncliffe owned and occupied by Mr Burton. Mr Burton is married to the sister of Mr Brooks' de facto partner, Ms Rita Paduano. 3At the time of the accident Mr Brooks was assisting Mr Burton to lop trees in the vicinity of the pool. Mr Brooks suffered serious injuries as a result of the accident. 4By the present proceedings Mr Brooks claimed damages from Mr Burton upon the basis that the accident, and hence Mr Brooks' injuries, resulted from Mr Burton's breach of a duty of care that he owed to Mr Brooks. 5The proceedings were heard by Garling DCJ who by judgment dated 12 February 2010 upheld Mr Brooks' claim and awarded him damages totalling $251,448. His Honour arrived at this amount after deducting 25 per cent for contributory negligence of which he found Mr Brooks to be guilty. 6By his Third Amended Notice of Appeal Mr Burton challenged the primary judge's findings as to the existence and content of a duty of care, breach of duty and contributory negligence. The challenge to the finding that a duty of care existed was withdrawn at the hearing of the appeal although the issue as to the content of that duty remained. The only aspect of damages that was the subject of appeal was the primary judge's finding that as a result of the accident Mr Brooks suffered a loss of earning capacity that was likely to cause him future economic loss. By his Notice of Contention Mr Brooks contended that the primary judge should have found that Mr Burton committed an act of negligence additional to those which his Honour in fact found. 7For the reasons that follow, my view is that Mr Burton's challenges fail and that his appeal should be dismissed with costs. It is unnecessary in these circumstances to consider Mr Brooks' Notice of Contention.

THE JUDGMENT AT FIRST INSTANCE 15The primary judge's finding as to how the accident occurred was as follows: "The version I accept is that the defendant, whilst cutting down branches, did not completely cut through a branch. He reached out with his chainsaw, he had got it to the very limit of where it could go, cut the branch but it was not quite cut through and the plaintiff would not have known this. The plaintiff took hold of the branch and went to remove it as he had been doing, the branch not being cut through would have provided some resistance. He then pulled on it in a much heavier and stronger way which is not unusual and he then comes free, goes backwards, loses his balance and falls into the swimming pool which is empty and sustains serious injury to his leg. I am satisfied those are the facts" (Judgment pp 2 - 3). 16Having referred to s 5B, s 5C, s 5G and s 5R of the Civil Liability Act 2002, the primary judge said that Mr Brooks had argued his case in two ways. First he had argued that Mr Burton was negligent in failing to completely cut through the branch in question. Secondly Mr Brooks had argued that Mr Burton "was negligent [in] having the plaintiff [Mr Brooks] work in an area in close proximity to a swimming pool or hole in the ground with no water in it, no cover or nothing to protect the plaintiff from falling into it" (Judgment p 4). His Honour said that "[i]t was totally foreseeable that, if someone tripped, fell, lost their footing, they would fall into the hole. The risk was not insignificant. It was significant" (Judgment p 4). His Honour also said: "It is obvious that, if you are pulling out branches, shrubs, things of that nature, they will from time to time become caught and require a little extra effort to get them out. It is obvious that once one does that, that you can lose your balance or move backwards or step backwards and, in my view, this was an obvious danger. To have a large hole right in the vicinity of where you are working is dangerous" (Judgment p 5). 17The primary judge found that Mr Burton owed a duty of care to Mr Brooks which was "that which a householder will owe to a relative or a friend who has come over to give them a hand with some gardening type work" (Judgment p 5). 18As to preventative action that Mr Burton could have taken, his Honour said the following: "He could have put some boards across the end of the pool where they were working, or a cover across it which would have prevented anyone from falling in but, in particular, it would not, I would have thought, been difficult to take some material, garden furniture, anything, and place it so as it gives a bit of a protective barrier, so if something like this did happen what would have happened to the plaintiff is he would have struck the barrier and not fallen into the pool, or, alternatively, not to do this work in this way in this place. It is a very small area, the work could easily have been done in another way to ensure that no-one was going to trip and fall into the pool. The cost of doing any of those things was minimal" (Judgment p 6). 19The primary judge concluded that Mr Burton had breached his duty of care, apparently upon the second basis argued by Mr Brooks (see [16] above). As to the first basis his Honour said that he was not satisfied that Mr Burton's "failure to cut totally through a branch was negligence" (Judgment p 6). 20The primary judge then found that Mr Brooks was guilty of contributory negligence, adding: "By far, the majority of the negligence must rest with the defendant. It was the defendant's swimming pool, it was the defendant's choice not to have water in it, it was the defendant's choice not to barricade it and the way the job was done was the way the defendant wanted to do it. The plaintiff was simply helping. However, I am satisfied that the plaintiff contributes to his injuries and his damages and I find that he contributes to the extent of twenty-five per cent" (Judgment p 7).

MR BURTON'S LIABILITY IN NEGLIGENCE 21Mr Burton's concession that he owed a duty of care to Mr Brooks was in my view well-founded. As Mr Burton was the occupier of the premises upon which the accident occurred and Mr Brooks was a lawful entrant, Mr Burton owed Mr Brooks a duty to take reasonable care to avoid a foreseeable risk of injury ( Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479 at 488). However, as in Thompson v Woolworths (Qld) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, Mr Burton's status as the occupier of the property was only one aspect of his relationship with Mr Brooks (see [24]). Mr Brooks was on the property for the purpose of assisting Mr Burton to undertake an activity that was for Mr Burton's benefit and, as the primary judge held, "the job was done ... the way the defendant [Mr Burton] wanted to do it. The plaintiff was simply helping" (Judgment p 7 quoted in [20] above). As the organiser of an activity involving a risk of injury to those engaged in it Mr Burton was "under a duty to use reasonable care in organising the activity to avoid or minimise that risk" ( Leighton Contractors Pty Ltd v Fox [2009] HCA 35; (2009) 240 CLR 1 at [20]; see also Thompson v Woolworths at [26] - [27]). The fact that Mr Brooks was not paid for his assistance did not lessen the duty that Mr Burton owed to him. 22Mr Burton's organisation of the activity indicated that he had a measure of control over what occurred. The control that he derived from this organisation supplemented that which arose out of his ownership and occupation of the property. Control is important "in identifying the evidence and nature of a duty of care" ( Thompson v Woolworths at [24]) both in occupier's liability cases (ibid) and in other contexts ( Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [16], [21], [81]; Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at [149] - [150]). 23For the purposes of resolving Mr Brooks' claim it is helpful to define Mr Burton's duty in more specific terms than those of these general formulations. Mr Burton submitted that the primary judge's purported formulation of Mr Burton's duty was, to use the expression that Gummow J used in Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422, "devoid of meaningful content" (at [73]). This submission must be accepted as the purported formulation did not in fact identify the content of the duty. 24As in many cases, formulation of the duty that was owed here is not easy. A path has to be trodden between a formulation that is too general to be of assistance and one which is too specific and is influenced by hindsight (ibid at [70] - [73]; Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; [2007] 234 CLR 330 at [43] - [58]). Bearing in mind that Mr Brooks, in assisting Mr Burton, was working in close proximity to, and with his back to, a dangerous hazard, the duty that Mr Burton owed to Mr Brooks is in my view appropriately described as one to take reasonable care to avoid Mr Brooks falling back into the empty swimming pool. 25In considering whether Mr Burton breached this duty, it is necessary to focus upon the particular circumstances that led to Mr Brooks' accident, that is, those which occurred in relation to the particular mulberry tree branch that Mr Brooks was holding when he fell. 26Prior to the accident the parties had been engaged in the lopping process for half an hour or more without incident. Mr Brooks had been removing severed branches until Mr Burton came to the branch that was almost out of his reach and needed Mr Brooks to hold it so that Mr Burton might use the tip of his chainsaw to cut it. Particularly as the branches were long and to some extent "springy", it was in my view clearly foreseeable, in fact virtually inevitable, that Mr Brooks would have to hold the branch firmly and apply some tension to it in order to facilitate Mr Burton's use of the chainsaw on it. 27This was clearly what Mr Burton intended would happen when he asked Mr Brooks to hold the branch. This created a situation in which there was a significant risk that the tension Mr Brooks applied to the branch would suddenly be released as a result of the branch being severed or as a result of the branch being partially cut and then snapping. In turn this involved a risk of Mr Brooks (who was a large man, of some 130 kilograms in weight) losing his balance in the restricted area available for him to stand and of him falling backwards into the empty pool. A fall into an empty swimming pool would inevitably cause injuries, as did Mr Brooks' fall. 28In these circumstances I consider that it was negligent for Mr Burton to ask Mr Brooks to hold the branch to enable it to be cut without satisfying himself that, for one reason or another, an accident of the type that did occur would not occur. As the primary judge said in relation to the lopping generally, it was open to Mr Burton "not to do this work in this way in this place" (Judgment p 6). Particularly was this so in relation to the branch that Mr Brooks was holding when he fell. If the result was that that branch was not cut on that day, so be it. There was no imperative to cut it without adequate precautions being taken. The lopping of the trees was, as Mr Burton described it, only "an afterthought" (Transcript p 71). 29The magnitude of the risk of serious harm resulting to Mr Brooks was such that Mr Burton was not justified in proceeding with the activity in question without taking precautions to eliminate or substantially reduce that risk. Further, as I have said, the activity was one that it was open to Mr Burton to refrain from undertaking. In these circumstances it was not in my view incumbent upon Mr Brooks to identify the precautions that, if taken, would have enabled Mr Burton to proceed. 30The following observations that I made (with the concurrence of McColl JA and Sackville AJA) in relation to the situation in Agresta v Agresta [2010] NSWCA 330 at [21] are relevant by way of analogy to that in the present case: "Unavailability of a replacement machine, or alternatively lack of proof by Mrs Agresta of the availability of an alternative machine, does not mean that the appellants were not negligent in allowing, or requesting, Mrs Agresta to use the existing machine. The alternative of not letting her use (or requesting her to use) the existing machine was readily available. Knowing of Mrs Agresta's lack of experience and being aware of the real prospect of Mrs Agresta being distracted in her operation of the machine, a reasonable person in the position of the appellants would not in my view have let her, or requested her to, take control of the machine on that day. The fact that there might have been another alternative available to the appellants, namely, to purchase an alternative machine which had appropriate safety features, is in these circumstances beside the point .". 31It is unnecessary in these circumstances to consider what precautions Mr Burton might have taken to reduce the risk sufficiently to enable the activity to proceed and whether the primary judge was entitled to have regard to what Mr Burn, an expert called by Mr Brooks, said about such precautions. The precautions to which the primary judge referred included placing boards across the end of the pool, putting a cover on it, placing a protective barrier near it and taking steps to do the work "in another way" (Judgment p 6). 32Mr Burton submitted that the primary judge's finding of negligence based upon his Honour's conclusion that it was open to Mr Burton "not to do this work in this way in this place" (Judgment p 6) fell outside the case pleaded. Mr Burton contended in this respect that Mr Brooks' counsel had indicated to the primary judge in opening the case that with limited exceptions the particulars of negligence contained in the Statement of Claim, which were in my view expressed broadly enough to encompass his Honour's findings as to negligence, would not be pressed. 33I do not agree that this occurred. The transcript reveals that in the course of the opening there was a lively exchange between counsel and the bench. It concluded with the primary judge saying "[s]o your case is really [put in] two ways", which his Honour identified. Counsel started to respond by adding reference to another matter but was cut off by his Honour saying "[s]afe place for carrying out work and those other matters you set out there" (Transcript p 4). His Honour was in my view clearly referring to the particulars of negligence, to which reference had already been made in the interchange, as set out in the Statement of Claim and was indicating an understanding that Mr Brooks relied upon all of those particulars. 34In any event, the primary judge's description of the second way in which Mr Brooks' argued his case (see [16] above) is a sufficient indication (in the absence of any transcript of Mr Brooks' closing address being available) that Mr Brooks maintained a broadly based case throughout the hearing. The fact that his Honour founded his decision, in the alternative, on the proposition that "the work could easily have been done in another way" itself suggests this. 35Before leaving the question of Mr Burton's liability, I refer to two additional matters that Mr Burton relied upon. 36First Mr Burton submitted that the departure that occurred in relation to the branch in question from the method that the parties had adopted for the previous half hour or so in lopping the trees was purely a matter of choice on the part of Mr Brooks. I do not agree. Mr Burton's evidence was that he asked Mr Brooks to hold this particular branch for him and, more generally, it is clear from the evidence and his Honour's judgment that Mr Burton was the person who determined what occurred in the foliage clearance. This was hardly surprising as Mr Burton was the owner and occupier of the property, the work was for his benefit and he had a ladder and chainsaw with which he undertook the primary role in the clearance. 37Secondly Mr Burton complained that the primary judge did not have sufficient regard to the provisions of the Civil Liability Act 2002. His Honour did however set out various provisions of the Act (see [16] above) and in my view did not fail, in a respect that is material to resolution of this appeal, to address any of the matters that the Act requires to be addressed. As I pointed out in Laresu Pty Ltd v Clark [2010] NSWCA 180; Aust Torts Reports [82-068], a failure by a primary judge to refer to relevant provisions of the Civil Liability Act does not vitiate the judge's decision if in material respects the judge has addressed the matters that the Act requires to be addressed ([41] - [42]).

CONTRIBUTORY NEGLIGENCE 38Mr Brooks did not challenge the primary judge's finding that Mr Brooks was contributorily negligent and was responsible for his injuries to the extent of 25 per cent. However Mr Burton contended that that percentage was too low. In my view, it was open to the primary judge to conclude (see [20] above) that that percentage represented Mr Brooks' responsibility for the accident. Mr Burton's challenge to this aspect of the judgment accordingly fails.

FUTURE ECONOMIC LOSS - EARNING CAPACITY 39The primary judge gave the following description of the limitations that Mr Brooks' injuries imposed on his day to day activities, and would continue to impose into the future: "The plaintiff said that he has difficulty walking up and down stairs, he is slow, he has to hold on, his weight has increased, he cannot go jogging or running, he has difficulty getting in and out of his boat, he has been emotionally affected, he obviously cannot do heavy work or heavy lifting, he has difficulty crouching, he now has to sleep in a separate bed because of these injuries, he does not do as much shopping as he used to, he has some difficulty in travelling over long distances, he cannot exercise his dog as much as he used to and has some difficulty with walking and life in general" (Judgment p 8). 40Mr Brooks gave evidence that he was a sales manager in a company that imported garden stakes and that his job involved a good deal of travel (Transcript p 14). He gave the following evidence concerning the effect of the accident upon his job: "Q. Do you have any difficulties performing aspects of your job and if so what part of your job do you find difficult? A. Yeah, well my role had to change since the accident because from 3.30 until 5 the boys in the factory that manufacture the stakes go home and we still get customers to 5 o'clock. So my job was to go and get the stakes and help the customers put them into their cars. But obviously I can't do that so one of the guys in the factory has to stay back to 5 every day and do that for me. Q. Despite that, [your] income hasn't dropped though, has it? A. No, it hasn't. Q. The company, is it still a viable company? A. Yes" (Transcript p 18). 41In cross-examination Mr Brooks said that since the accident he had in the normal course of his progression through the company become "more of a manager" but it was still his "job to see the distributors" (Transcript p 38). 42Dr Alex Ganora gave evidence, which the primary judge accepted, as follows: ""He is permanently unfit for work that requires prolonged standing or walking, negotiating uneven ground, squatting or climbing stairs or ladders and he is not fit for heavy manual handling or carrying. He is fit for work that avoids these limitations. His current employment involves some difficulties for him with respect to the amount of walking required and he is no longer fit to perform the manual handling components of the work. He is also no longer able to travel as part of the job. His productivity is therefore significantly reduced as a result of the accident he has suffered. Were he to lose employment, he would be at a considerable disadvantage in competing for new employment. His ability to travel by public transport is limited by difficulty with standing, walking, stair climbing, balance and co-ordination. He cannot operate the clutch pedal of a manual vehicle" (Blue Appeal Book p 36). 43The primary judge noted that Mr Brooks was 44 years of age and that the disabilities that he had at the date of trial would affect him for the rest of his life, perhaps worsening to some extent (Judgment p 9). His Honour said that Mr Brooks' net wages at the date of trial were "well in excess of $1,000 per week" and as far as Mr Brooks was concerned "his job is not at risk, the company is quite viable and as long as he continues the way he is, he can continue with his job" (Judgment p 10). 44The primary judge reached the following conclusions on the issue of future economic loss: "Assessing future loss of earning capacity in a case like this is not easy. It is not easy because this man is a good worker, has a good working history. He goes back to work at an early time and he does his work. His work is not physically very demanding. Whilst the business he is in continues, then he probably will not have a lot of problems; he will be able to continue working there and earning what he earns. However, should that business, like many businesses, close down, should it have to put off staff, should something happen to it in the future then the plaintiff will be forced onto the open labour market. There has to be a significant chance that he will not continue working at this business for the rest of his life. He has a working life which is in excess of twenty years. In addition to that, if he does go onto the open labour market, whilst he might be lucky enough to get another similar job, he may be unlucky and not get a similar job. That really restricts him. This man is very restricted. There are numerous types of work which he could never do including driving type work because he cannot do that for lengthy periods of time and none of those types of work I have set out. In my view, the chances of him losing income in the future are in excess of ninety per cent. The difficulty is assessing what it will be. There are no other matters which affect his assessment. Had he not had this accident he could have just kept working. He does not have any other injuries, he does not have any other problems but he does have hanging over his head a distinct possibility that he will lose income in the future. How does one assess it? It is a task Judges face constantly; it is very difficult. It not a matter of multiplying out an amount per week. It is a matter of assessing what is a reasonable way of awarding damages being fair to both parties. On that basis I award the plaintiff for future loss of earning capacity $70,000" (Judgment pp 12 - 13). 45Mr Burton submitted that the primary judge: "... seems to have taken the figure of $70,000 out of the air ... Working backwards, and assuming an ordinary discount for contingencies of 15%, it equates to lump sum compensation reflecting a loss of $120 per week after tax for every week of the plaintiff's working life. There is simply no basis for an award of that size" (Appellant's Submissions [56]). 46I do not accept this submission. The primary judge in effect awarded damages for future economic loss by way of a "buffer" to compensate Mr Brooks for the possibility, which his Honour saw as a real one, of Mr Brooks' future employment being adversely affected by his injuries. The provisions of the Civil Liability Act do not preclude the award of a "buffer" in appropriate circumstances (see Penrith City Council v Parks [2004] NSWCA 201 at [3] - [5], [58]; Stretenovic v Reed [2009] NSWCA 280 at [81]). As Mason P noted in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432: "a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future" (at [2]). 47Mr Brooks' income from his present employment has not been adversely affected by his injuries. However it appears that his employer has been accommodating and there is, as the primary judge found, a significant risk that if in the future he had to find another job he would be prejudiced by the undoubtedly serious disabilities that he has. Mr Burton's submissions indicate that the buffer awarded to Mr Brooks equates to something in the order of ten per cent of his present income. The primary judge was engaged in an evaluative task and the figure at which he arrived was not in my view outside the range of those at which he could reasonably have arrived. In my view Mr Burton's challenge to the primary judge's award of damages fails.

ORDERS 48For the reasons that I have given the appeal should be dismissed with costs. 49TOBIAS AJA : I agree with Macfarlan JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2011

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