Cockburn v The Trust Company Ltd

Liability of the first defendant 6Mr McCarthy pointed out that there was simply no evidence that the first defendant occupied any part of the land or knew or ought to have known about the grate including its state of disrepair. Nor is there any evidence that the first defendant had any obligation in respect of the maintenance of the grate. Mr Lidden, on the other hand, argued that there was "no evidence as to what the first defendant was actually doing in respect of the site" (T304.25). He argued that an "adverse inference arises against the first defendant in that respect." He referred to the High Court's judgment in Jones v Dunkel [1959] HCA 8; 101 CLR 298; 32 ALJR 395. 7I accept Mr McCarthy's submission that there is no or no sufficient evidence of the occupancy by the first defendant of the site or of any duty of care which it may have owed the plaintiff. I do not regard the argument that liability can be established by a process of adverse inference to be sufficient. In due course, I will enter a verdict for the first defendant against the plaintiff.

Liability of the Second Defendant 8The next issue that I propose to deal with is the issue numbered 3 in Mr McCarthy's statement of issues and concerns the second defendant's liability for the actions of the forklift driver and his words. During his evidence, Mr Cockburn said that after his fall down the hole, the forklift truck driver said to him regarding the grate and the missing bar "That's been there for a while, a long time." Mr McCarthy objected to the admissibility of that evidence. I admitted it as evidence of the fact that the words were said and heard argument about whether or not the words could be taken to be an admission. 9The argument was based on s 87 of the Evidence Act 1995 (NSW). In my opinion, the words uttered by the forklift driver, who was not able to be identified, are admissible against the second defendant by virtue of s 87(1)(a) and (b) of the Evidence Act. Turning to subclause (a), I approach the task by identifying "the matter with respect to which the representation was made". In my opinion that "matter" was the hole in the grate. When I ask myself whether the driver "had authority to make statements on behalf of the [second defendant] in relation to" that matter, it seems to me that the answer is obviously yes. The driver would be authorised to warn visitors to the site of any potential dangers at the site. Clearly the driver had authority to make a statement on behalf of the second defendant to Mr Cockburn to point out the hole in the grate so that he would not accidentally fall in. Mr McCarthy argues that his client should not be liable for "every musing of another person." (I refer to [21] of his very helpful written submissions, which I will refer to as DWS.) Although that submission was made in respect of s 87(1)(c), if it were applied as an argument in relation to s 87(1)(a) I would still admit the evidence because it is an assertion "in relation to" the matter which is the existence of the hole in the grate. 10Even if "the matter" is interpreted more narrowly to mean how long the hole had been present, in my opinion it would be within the driver's authority to inform Mr Cockburn about that topic. It could be information relevant to a driver such as Mr Cockburn in assessing whether or not to drive over or near the grate. If the hole had been present for a long time, a driver may assume that it was reasonably safe to drive over it. 11In addition, my opinion is that the words are admissible against the second defendant under s 87(1)(b) of the Evidence Act. That is consistent with the evidence of Mr Clark who was called as a witness on behalf of the second defendant. The driver acted for the second defendant in collecting delivers and signing for them. A matter "within the scope of" the driver's "authority" was clearly to assist in unloading deliveries. It will also be within the scope of his authority to do so safely and to take reasonable steps for his own safety and the safety of others who are involved in the process. The "matter within the scope" of the driver's authority was the existence of the hole in the grate. What he said "related to" that matter. The words "related to" constitute a very broad linking phrase. If the "matter" is more narrowly defined, I would still regard it as admissible because the period of time that the hole had been there would be relevant for a driver such as Mr Cockburn to know for the reasons that I have already given. 12I think there is force in Mr McCarthy's submission that it is too difficult for Mr Cockburn to discharge the onus of proving that the forklift driver was an employee of the second defendant. I accept his written submissions in this regard. 13For completeness, I would not regard the words as being admissible against the second defendant under s 87(1)(c) of the Evidence Act because the words were uttered after the event by way of information given to Mr Cockburn. In the circumstances of this case, they are more to be likened to "a narrative statement of account of some past event", to use the expression of Hall J in Landini v State of NSW [2007] NSWSC 259 at [25].

Causation 14I turn now to issue 2, which is whether Mr Cockburn has satisfied his onus of proof with respect to causation. Accepting, as I do, the words uttered by the forklift driver that the hole in the grate had "been there for a while, a long time", I also accept that, to use the expression used by Mr McCarthy in MFI 7, it "had been missing for a period long enough for the second defendant to have repaired it or at least barricaded it so that the plaintiff could not go near it." 15For completeness, I also add in regard to the question of causation that I accept Mr McCarthy's evidence that there is not sufficient evidence provided by the cross-examination of Mr Clark, by reference to the appearance of the grate, for Mr Cockburn to discharge the burden of proving that it had been in that condition for a sufficient period of time to amount to a negligent omission on the part of the second defendant. I accept Mr McCarthy's submission contained at T285 and I do not regard Mr Lidden's submissions at T303 as being sufficient to discharge his client's onus of proving that the condition of the grate had been present for long enough to establish a case in negligence against the second defendant.

Contributory negligence 16Turning to issue 4 (the question of contributory negligence), in my opinion there was no contributory negligence on the part of Mr Cockburn. He was engaged in cleaning up a spillage which had occurred moments or minutes beforehand. I accept Mr Lidden's description that it was a kind of emergency which had developed. Perhaps the expression "emergency" was putting it a little high, as he acknowledged, but it was an unexpected and immediate "problem at hand" to use the expression at T303.50. Mr Cockburn was working on a sealed and even surface. He was engaged in a task of bending and lifting items. It was not a surface, looking at the photographs, where one would expect there to be any hole or instability underfoot. The point here is that, in my opinion, for reasons which I will come to, the second defendant left the hole there on a surface which was otherwise sealed and even and which was used by persons for driving and walking over. As Mr Cockburn frankly acknowledged, he was "not looking for it", referring to the hole. I ask myself rhetorically why he was not looking for it. The answer is that he would not be expecting that kind of danger. He wouldn't expect the surface to be broken, uneven or to contain a hole such as the one he fell down. 17I bear in mind in this regard the provisions of the Civil Liability Act 2002 (NSW), particularly s 5R. The standard of care required of Mr Cockburn "is that of a reasonable person in the position" of Mr Cockburn and the question of his contributory negligence "is to be determined on the basis of what that person knew or ought to have known at the time." In my opinion, given the task at hand which arose unexpectedly and which involved bending and lifting over a smooth and relatively even surface which was like a car park, Mr Cockburn was exercising an appropriate standard of care in light of what he could see and what he knew. I find that there is no contributory negligence on the part of Mr Cockburn.

Second defendant occupier? 18I turn now to issue 5 which concerns the question of whether the second defendant was an occupier of the place where the accident occurred and its liability in negligence. Mr McCarthy, who acknowledged the assistance of his instructing solicitor Ms E Patrick in this regard, in his written submissions very helpfully and clearly set out the leasehold arrangements affecting the second defendant and the second defendant's responsibilities and limits on the second defendant's responsibilities. The submission concludes that the second defendant "had no right or contractual responsibility to effect repairs on the roadway as defined" (DWS[43]). The argument proceeds that it "follows that the second defendant, at no time, occupied the roadway and therefore did not occupy the grate". 19Mr McCarthy also very appropriately, and in accordance with his duty to the Court, drew my attention to the Court of Appeal's judgment in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364; Aust Torts Reports 82-043. It is clear from the evidence of Mr Cockburn and Mr Clark that the second defendant used the area where the accident occurred in the course of its business including receiving the delivery of goods. When shown a photograph of the broken grate at T230 and asked what he would have done if "at any time it had been brought to your attention that there was a gap in that grate," Mr Clark said that he "would have cordoned off the area with our witches hats or spill kit system". He added that he would then "contact the landlord" (T231). 20It was the landlord's responsibility under the lease to do the repairs. Mr Clark acknowledged again at T234 that he would have cordoned off the area. The "grate is in an area where forklifts would drive backwards and forwards from time to time", Mr Clark agreed at T235. Clearly the second defendant enjoyed a right to invite people to use the area in the vicinity of the grate. That was necessary in order for drivers to deliver goods to the second defendant or for visitors to attend their warehouse. The second defendant clearly had a degree of control over the state of the premises. It is clear from Mr Clark's evidence that there was a system for checking for any risks and reporting them. 21The second defendant was probably one of the main users of this site. If the hazard was reported to the second defendant, then it would have taken action by cordoning of the site and arranging for the appropriate person - in this case, the landlord - to repair the grate. In the meantime, the barriers erected would serve to warn visitors of the hazard and prevent them from approaching it. 22I would respectfully adopt what McColl JA said by way of comparing the case she was determining in Stojan with the High Court's judgment in Gorman v Wills [1906] HCA 84; 4 CLR 764. Her Honour said at [84] that the "facts of this case insofar as Stojan is concerned, bear a resemblance to those considered by the High Court" in Gorman v Wills. Adopting and adapting what Barton J said in Gorman v Wills, for the purposes of their own business the second defendant in this case brought Mr Cockburn into a situation which a prudent person in the second defendant's position would know involved a certain risk given the broken grate. So far as the second defendant could reasonably exercise any control over that situation to prevent injury as a result of the broken grate which they ought to have seen "it was their duty to exercise that measure of control." (I am quoting from the judgment of Barton J extracted in [84] of McColl JA's judgment in Stojan.) That duty, in my opinion, would include in this case cordoning off the area and reporting the broken grate to the landlord. Assuming in favour of the second defendant that it was not entitled in law to exercise the complete physical control which would be involved in keeping or putting this grate into reasonably safe repair and so preventing the risk to Mr Cockburn, I ask rhetorically, as Barton J did, "then were they relieved of all duty?" As Barton J said - "So long as a danger existed which they ought to have known, and which they were inviting business visitors, who knew nothing of it, to incur, it was at least their duty to protect them, as far as possible, against that which they, if their law is good, had no legal right to physically prevent or remove." His Honour went on to observe that the "least onerous form in which they could discharge that duty was to warn the female plaintiff". 23In my opinion, the second defendant was an occupier of the roadway to a sufficient extent to assume a duty of care to Mr Cockburn in this case. Adopting McColl JA's formulation of the duty at [89] of Stojan, the second defendant "owed the plaintiff a duty to take such care as was reasonable in the circumstances". 24What is reasonable will vary but "requires an occupier to protect entrants from risks of injury which can be foreseen and avoided" (at [90] of the judgment in Stojan). The "measure of the discharge of the duty is what a reasonable person would, in the circumstances, do by way of response to the foreseeable risk". 25The hole in the grate had been there for some time. Mr Clark himself acknowledged that it ought to have been reported to him as "a potential trip hazard" and "should have been reported to somebody and that would have come up the food chain to myself". He agreed that it would be the "height of irresponsibility" for a driver to direct a truck driver to stop near the grate and work nearby. He agreed at T244 that the forklift driver "should have warned" Mr Cockburn. Mr Clark agreed at T245 that the area in question "was a thoroughfare...also used for Beaver's purposes of loading, unloading, taking deliveries, parking, all those sorts of things". 26It was negligent, I accept, of the second defendant not to have taken steps to protect people from the hole or not to have warned Mr Cockburn of the presence of the hole given the circumstances of what happened. I agree with Mr Lidden SC when he said at T302 that the "position of danger, that is proximity to this hole, was created by the forklift driver saying, 'Park right there.'" In my opinion, the second defendant owed a duty to Mr Cockburn to take such care as was reasonable in the circumstances. It would have been reasonable to warn Mr Cockburn given the time that the hole was there. It ought to have been reported to the second defendant and it ought to have been cordoned off. This was a duty owed by the second defendant to persons who came to do business with it on that part of its premises. In my opinion, the second defendant breached that duty of care to the plaintiff.

Whether the plaintiff can be accepted as a witness of truth 27I turn now to issue 6 which is whether the plaintiff can be accepted as a witness of truth. Mr McCarthy developed a well-articulated case for not accepting Mr Cockburn as a witness of truth. The attack was based substantially on a comparison between Mr Cockburn's account in the witness box of his physical restrictions and surveillance film taken of him at work earlier this year. Mr McCarthy's point is that Mr Cockburn is not telling the truth and that "when he believed he was unobserved" he was "seen performing multiple tasks with his right arm." (I am referring to DWS [51].) 28What Mr Cockburn made clear in his evidence was that he has to use his left hand a lot more than before. He is naturally right-handed. He said more than once that he is right-handed and instinctively uses that right arm. Such activity, he said, will often result in pain. His responses to the questions in cross-examination about what he was doing on the film to my mind made sense. He made comments about the weights of the loads that he was handling or the straps he was applying or the petrol cap he was unscrewing. He explained that the process of getting out of the truck or flipping himself over involved very little weight bearing. He acknowledged that he had good and bad days. 29When assessing Mr Cockburn's credibility, I take into account that specialist orthopaedic surgeons have diagnosed him with significant pathology in his right wrist and have accepted his complaints of pain and ongoing disability. Another surgeon operated on Mr Cockburn on 11 November 2010, performing a right carpal tunnel decompression. The surgery and the doctors' opinions are consistent with Mr Cockburn's own complaints. 30Another relevant factor to my mind is that he has a very good work history and is obviously determined not to become an invalid or to sit around doing nothing. Mr Cockburn continues with his physical labour despite the pain in his right wrist. He does not claim that he cannot work. He went back to work after the accident and again after the surgery. 31I think when cross-examined, Mr Cockburn demonstrates his limits due to pain. That is what he is asked. He is in a courtroom environment being questioned about his pain and disabilities but when he is at work he does his best to do the work. He will work with pain. There are selected occasions on the film where he is shown to prefer his left hand. They appear in exhibit P. Mr McCarthy argues that "at no time was [he] seen to flinch or exhibit any pain behaviour or avoidance behaviour" (DWS [54]). But it is clear to me that Mr Cockburn is not the flinching or pain-exhibiting type. 32The surveillance film does not cause me to doubt Mr Cockburn as a witness of truth. The medical evidence, his work history and the fact that he is back at work despite pain are not consistent with the second defendant's position that he is not telling the truth.

Non economic loss 33I turn now to an assessment of the damages which the second defendant ought to pay to Mr Cockburn. He has made a claim for non-economic loss. These are the factors which, in my opinion, are relevant to that claim. The medical evidence suggests that there is a poor or guarded prognosis for his recovery. There is evidence given by his partner of a change in his personality and in his day-to-day activities both social and personal. Mr Cockburn himself has made reference to constant pain (for example at T100 and T103). He does not demonstrate that pain because he "prides himself on being a man". Simple things such as walking the dog he can no longer do because he needs the strength of his right arm to control one of his dogs. He is a man who has always worked and worked hard. The satisfaction which he derives from doing hard work is now limited. 34The impact on his life in terms of "pain and suffering" and "loss of amenities of life" (s 3 of the Civil Liability Act) is, in my opinion, relatively extensive. Mr Lidden argues that his client should be assessed at 33% of a most extreme case under s 16 of the Civil Liability Act. Mr McCarthy, on the other hand, suggests that the figure is no more than 15 - 20%. In my opinion, taking into account the medical evidence, Mr Cockburn's own pain and suffering and the changes to his lifestyle, they would be fairly represented by finding that the severity of the non-economic loss as a proportion of a most extreme case is 30%. The corresponding figure for damages for non-economic loss is therefore $127,000.

Past out of pocket expenses 35The past out of pocket expenses were agreed at $1,763.25. I accept that they were reasonably incurred and would award that amount to Mr Cockburn.

Future out of pocket expenses 36As for future out of pocket expenses, on 9 September 2012 Dr Wallace thought that Mr Cockburn would require "intermittent use of analgesic and anti-inflammatory medication". Dr Bodel accepted that he would need "analgesic medication". At T154, Mr Cockburn acknowledged that his medication comprises mainly Panadeine Forte which was needed for "both" the accident-related painful arm and the unrelated pancreatitis. 37There is no evidence of the cost of the medication. Mr Cockburn uses the medication both for his accident-related condition as well as for unrelated conditions. I accept that he will need to spend some money in the future on medication for his accident-related condition. The doctors confirmed that. However, it is very difficult to make an estimate because the medication treats both conditions and because I do not have figures for the cost of medication. 38Mr Lidden SC argues that I could award up to $20,000 for future out-of-pocket expenses. He acknowledges that it is an educated guess. In my opinion, there is no evidence to provide a basis for such a large amount. I would regard an allowance of about $10 or $20 a month as being not unreasonable given the state of the evidence. I think the appropriate figure in the circumstances to allow for future out-of-pocket expenses is $5,000.

Loss in earning capacity 39I turn now to the claim for loss in earning capacity. Mr Cockburn's claim for economic loss, argued by Mr Lidden SC, is based on his lost opportunity to work at PGH. The claim of $600 a week contained in MFI 10 (which is the schedule of past wage loss) is already discounted. Given Mr Cockburn's work history and the impression he made on Mr Davidson from PGH, I accept that he would have kept working at PGH but for the accident. I accept Mr Lidden's calculations which form the basis of the estimate of his lost income from not being able to do the PGH work. Given that differential, I accept that the claim of $600 a week of the loss is reasonable. I therefore accept Mr Lidden's argued claim for his client's past economic loss calculated at $131,040. 40As for the future, Mr McCarthy argues (at DWS [71-72]) that given the nature of the work and Mr Cockburn's general health, he would be unlikely to sustain the PGH work. Mr Cockburn himself accepted that the work was hard and his PGH employer, Mr Davidson, agreed that it was very hard work. I accept Mr McCarthy's submission (at DWS [72]) that a man of Mr Cockburn's age "with his unrelated medical conditions and social habits, would be most unlikely to be involved in heavy physical work into his 60s, whether or not he suffered the accident." Mr Cockburn is now 58. 41I need to consider, according to s 13 of the Civil Liability Act, what are Mr Cockburn's "most likely future circumstances but for the injury". Given his strong work history and his capacity for hard work, I think he would have undertaken the PGH work until the age of 60. As I said, he is now 58. I consider it likely that Mr Cockburn would step back from the hard manual labour involved at PGH to what he is doing now, or perhaps the work at Maxipak. I think he would have stepped back from about the age of 60. For the period from now until he turns 60 - say, for the next two years - I would allow him $600 a week which, when discounted by 5% and an allowance of 15% for vicissitudes, produces a figure of $50,694. 42Next, I accept that for some years in less onerous work Mr Cockburn may have earned in the region of $40,000. That estimate is based upon his 2010 and 2011 earnings, as shown in MFI 10. That would have been instead of his current earnings of about $35,000. That represents a loss of about $100 a week. I would allow that for three years, which produces a figure of $12,376 after being discounted using the 5% tables and allowing 15% for vicissitudes. 43I would make no allowance for any loss after the age of 65. By then, I expect Mr Cockburn's most likely circumstances but for the injury would be as they are now. Rounding up the figures, I would be prepared to allow Mr Cockburn $65,000 for his future loss in earning capacity.

Domestic assistance 44I turn now to Mr Cockburn's claim for domestic assistance. First, I note that the only medical support for assistance is from Dr Wallace and Dr Bodel, who estimate a need for three hours and two hours per week respectively. Dr Bodel's report is dated 30 August 2013 and Dr Wallace's opinion, his more recent one, is dated 9 September 2012. Mr Cockburn and his partner estimate that help was needed for at least eight hours a week. Mr Cockburn thought that his uncle alone provided eight hours a week. It is clear to me that these estimates were not carefully thought out. Under cross examination Mr Cockburn's partner was asked to estimate the time spent on individual activities. I do appreciate that they are mere estimates but I think the cross-examination exposed the inadequacy of the overall estimates. 45Mr Cockburn's uncle said that he did the lawns only and that was not a big job, taking about an hour (T174). Mr Cockburn's uncle stopped helping with the maintenance of the truck when he stopped mowing the lawns (T178). Mr Cockburn acknowledged that his uncle's help stopped about 12 to 18 months ago (T150, 174). Now Mr Cockburn himself is doing the lawn (T148, 149) and his ability around the house has improved to the extent that he can manage things better on his good days. He agreed in response to a question from me that he has had "some good days and some not so good days" (T153). 46I am prepared to accept that Mr Cockburn required at least six hours domestic assistance for about 15 months after the accident. I base that opinion on his own evidence and the evidence of his partner and his uncle. However, by 13 June 2011 when Dr Wallace expressed his opinion about Mr Cockburn's need for domestic assistance, it was no higher than three hours per week, which is below the threshold. I would therefore allow a claim for past domestic assistance for six hours a week for 15 months at $27 an hour. By my estimate, that comes to a figure of $10,530. 47Looking into the future, Mr Cockburn's doctors offer either a "poor" or "guarded" prognosis. Dr Wallace maintains his estimate of Mr Cockburn needing three hours a week domestic assistance in his most recent report dated 9 September 2012. In his report dated 30 August 2013, Dr Bodel estimated that need to be no more than two hours a week. Mr Cockburn's life expectancy is 27 years. The ongoing commercial rate is $40 a week. I would be prepared to allow Mr Cockburn two hours a week at $40 a week for the next 27 years. That produces a figure of $62,640.

Verdict and judgment 48I enter a verdict and judgment for the first defendant against the plaintiff. I enter a verdict and judgment in favour of the plaintiff in the sum of $402,973.25 against the second defendant.

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: 31 July 2014