Egan v Woy Woy & District Rugby League Football Club Limited

Facts and evidence

1. A closed-circuit television (CCTV) recording of Ms Egan's fall was tendered in the proceedings. It showed Ms Egan being assisted by her partner, Leslie Israel, to descend the stairs at the club. The stairs comprise two runs of about ten steps from the top, with a landing after each run, then a further run of five steps ending on the ground floor. In the recording Ms Egan's gait appears unsteady and irregular. Although the recording is not high definition, it indicates that Ms Egan stumbled on the steps above the first landing. I considered whether Ms Egan's unsteady gait, as appeared in the recording, reflected her movement, or alternatively, was due to the imperfections in the recording. However, I noted that the recording also showed other people descending the stairs, and whilst their gait varied, it did not appear unsteady or irregular.
2. After pausing on the final step above the first landing, Ms Egan and Mr Israel continued across the landing to the second run of steps. About halfway down Ms Egan relinquished her grip on the hand rail and fell forward down to the second landing, which resulted in her injury.
3. Ms Egan's descent down the stairs was also the subject of evidence by herself and Mr Israel, and by Graham Milne, an employee of the club. Neither Ms Egan nor Mr Israel gave a detailed explanation of the cause of the fall. Both of them said that she "tripped and fell". Ms Egan claimed to have noticed that the stair nosings were "high". There was no other evidence to support that the stair nosings were high. Ms Egan said she let go of the hand rail to proceed in the direction of the club's entrance doors, although the video does not indicate that she looked in the direction of the club's entrance doors at any time whilst descending the second run of steps.
4. Mr Milne gave evidence that he saw Ms Egan and Mr Israel descend the stairs. He said that he was sitting inside the entrance on the ground floor and his attention was attracted by the raised voices of Ms Egan and Mr Israel. He attributed the fall to Mr Israel attempting to pull Ms Egan's bag from her left arm. However, the club's incident report completed by Mr Milne records that Ms Egan "lost her balance and fell down approximately three (3) stairs" which does not support Mr Milne's oral evidence that Mr Israel caused the fall by pulling Ms Egan's bag.
5. Ms Egan and Mr Israel denied the relevance of any incident involving the bag. Ms Egan's evidence included the following: "Q. You didn't give your bag to Mr Israel, did you? A. He took it off me. … Q. You don't actually have a recall of what happened, do you? A. Not a hundred per cent due to time, but I know what happened to a point. … Q. As you were walking down the stairs, I've already suggested to you that Mr Israel was trying to take the handbag from you. Do you agree or disagree with that? A. Yes. Q. He was? And you wouldn't let him have it, would you? A. I don't know what happened there. Q. You don't know what happened there? A. No. I was going to give it to him. Q. Isn't it the case that you were trying to stop him taking your handbag? A. I don't think so. Q. Wasn't he grabbing at you just before you fell? A. No, not before I fell, no. … Q. You didn't give your bag to Mr Israel, did you? A. He took it off me. Q. In fact, you fell when he was trying to take it off you. A. No. No. Q. And that caused you to lose your balance. A. No, it didn't, no. Q. You hadn't given your bag at all to Mr Israel before you fell. A. It happened - I had the fall after that."
6. The ambulance and hospital records record that Ms Egan fell when she attempted to jump three steps. The ambulance officer indicated that this information came from Mr Israel. Both Mr Israel and Ms Egan denied this. The CCTV footage is not of sufficient clarity to identify whether Ms Egan attempted to jump although I accept that something to this effect must have been said by Mr Israel and Ms Egan because of the contemporaneous record. I have generally preferred the contemporaneous documentary material and the CCTV footage to the oral recollections and reconstructions of witnesses several years after the fall.
7. I am not persuaded that Ms Egan's fall was caused by her jumping some steps. The suggestion that Ms Egan jumped several steps contemplates an irrational act by Ms Egan and is not supported by the CCTV footage or by Mr Milne's note. Nor does the footage support the suggestion that Ms Egan's fall resulted from Mr Israel pulling her bag. The footage suggests that Mr Israel had obtained possession of the bag shortly before Ms Egan fell. Mr Milne's suggestion about the causative impact of Mr Israel pulling the bag is not supported by Mr Milne's own contemporaneous report. I am not persuaded that Ms Egan fell because Mr Israel pulled at her bag.
8. I am inclined to accept Mr Milne's contemporaneous record in the incident report that Ms Egan lost her balance. Mr Israel receiving the bag may have distracted his attention from Ms Egan, who he had been helping down the stairs, and her failure to retain a grip on the hand rail, together with her unsteadiness, resulted in her losing her balance and falling.
9. The contemporaneous hospital notes and ambulance records do not support any allegation at the time of defective stairs, stair nosings or hand rails. Neither Mr Israel nor Ms Egan at the time appears to have blamed the club for some defect in the stairs causing the fall, nor does the CCTV appear to confirm that Ms Egan tripped. In my view, if any trip on the allegedly defective stair nosings had occurred, there would likely be some mention of it in the contemporaneous records, but there is none. Even at the trial Ms Egan did not attribute her fall directly to either the defective nosings or the inadequate hand railing. Rather, she said that she released the hand rail to proceed in the direction of the entrance, tripped and fell.

The breach

1. Roland Chand, a former employee of the club, gave evidence of irregular maintenance of the stairs, and the need for that maintenance. Mr Chand was retrenched by the club in disagreeable circumstances after an allegation by the club, which it subsequently withdrew, that he had appropriated some club property. His evidence regarding repairs to the stairs at irregular intervals suggested the likelihood of supporting records, but none of these records were in evidence before me. I was not convinced by Mr Chand's evidence of irregular repairs to the stairs, at least in the period immediately before the fall. As I said, there was no documentary evidence to support it and it was given in the face of denials in evidence by William Jackson, the then Secretary Manager of the club, and Mr Milne. In any event, irregular maintenance asserted by Mr Chand is not evidence that the nosings were defective or inadequately secured, even less that they were defective at the time of Ms Egan's fall.
2. As I said, there was no evidence of a defect in the stair nosings at the time of the fall. Indeed, the stair nosings in the location where Ms Egan fell were not the subject of any comment, let alone evidence of a defect. Both Mr Milne and Mr Jackson, who saw the stairs and nosings many times each day, gave evidence that they did not see any defect in the fixing of the stair nosings.
3. The length of the hand rail was also challenged. The right hand rail was not continuous to the foot of the final run of the stairs. It ended just before the lower landing, so that there was no hand rail on the right-hand side (as one descended) of the stairs for the last five steps. I am not satisfied that this was a defect. The Australian Standards indicated a need for a continuous hand rail on steps, not on a landing, and in this case there were three hand rails, one which ran down the left-hand side of the steps, which was largely continuous to the ground floor, a similar hand rail running down the middle of the steps, and on the right-hand side there was a hand rail running down to the lower landing but not continuing across that landing or down the final five steps. Thus, in my view there was a continuous hand rail down the steps. The right-hand hand rail ended at the final landing but this was some distance below the point at which Ms Egan commenced her fall.
4. Further, the expert report of Mr Burn tendered by Ms Egan, did not at any stage recommend a hand rail across the landing. Such a hand rail would be problematic as the landing was not only a gap between the two runs of steps, but also a route providing access to some offices of the club. In my view, the absence of continuity of the hand rail across the landing could not be a defect.
5. Ms Egan's case relied on testimony from Mr Israel and herself that in the two weeks after the accident the stairs and surrounding area were changed. I was unconvinced by this evidence which was not supported by other documents and it was denied by Mr Jackson. The video of the incident compared to photos many months later by Mr Burn, indicated that there was no, or no substantial change to the hand rails. There was some painting and the carpet had changed. However, any change is not probative of whether the stairway was unsatisfactory at the time of the fall.
6. Any change to the stairs has the effect of rendering later recommendations by Mr Burn about the stair nosings irrelevant. The relevant stair nosings positioned where Ms Egan fell were not the subject of adverse comment by Mr Burn.
7. Generally I found Mr Burn's reports unpersuasive. They lacked reasoning and manifested a changing view from one report to the next. They were all the subject of objection because of their content and form, and the final report was also objected to, because of its late service, being provided at the conclusion of the evidence. Nevertheless, I considered his recommendations. I was not persuaded that they were based on a recognised expertise, or that they were supported by appropriate reasoning, so I have been unable to give them significant weight.
8. Mr Burn's initial report did not advocate the need for an additional hand rail on the lower level of the stairs. That recommendation only appeared in his final report, served during the trial. There Mr Burn recommended the installation of a new hand rail on the lowest five steps, about halfway between the middle hand rail and the right-hand side, and also to extend the right-hand hand rail what appears to be about 15 centimetres onto the lower landing.
9. The final report of Mr Burn eventuated after counsel for Ms Egan wished to elicit some further evidence from Mr Burn, and I directed that the nature of the further evidence be provided in writing to the club. As a result, Mr Burn produced a further report with the different hand rail configuration.
10. As I mentioned, there were three hand rails on these steps descending beyond the steps where the fall occurred, one on each side and one in the middle.
11. It may be that any additional hand rail will improve safety to some degree, although that may depend upon the nature of the risk to be considered. However, I do not accept that the absence of the hand rail refinements recommended by Mr Burn constituted a breach of a duty of care. The provisions of s 5B of the Civil Liability Act 2002 require consideration of whether the risk of harm was foreseeable, not insignificant, and whether a reasonable person would have adopted the recommended precautions in respect to the hand rail.
12. Whilst the stairs constituted a not insignificant and foreseeable risk, I am not persuaded that a reasonable person would have added the short extension to the right hand rail and added a hand rail to the lowest stairs.
13. This precaution is not found in Mr Burn's earlier report. This suggests that at that time he did not find these changes reasonable. I am not persuaded that his final recommendation is a reasonable response. In my view, the risk of a patron or person falling was largely ameliorated, so far as hand rails could do, by the three runs of hand rails already in place at the time of the incident.
14. Nor am I satisfied that any greater securing of the nosings was a reasonable precaution that should have been undertaken, as I am not persuaded that the nosings were inadequately secured.

Causation

1. Ms Egan's fall cannot be attributed to the defective stair nosings as I am not persuaded that the nosings were inadequately secured, nor can the fall properly be attributed to the absence of a hand rail further down the stairs because Ms Egan fell before reaching that point.
2. There was no evidence that Ms Egan decided to let go of the hand rail on the right-hand side because that hand rail was due to end within a few steps. Rather, her evidence was to the contrary. She said she decided to head for the doorway to the club and released her grip at that point, which on her own account and in the video occurred some distance before the end of the hand rail. As I indicated, having viewed the CCTV footage I doubt that she let go of the hand rail to proceed to the exit because she does not at any stage appear to look towards the exit. In any event, the absence of a slightly longer hand rail or a new one on the next set of stairs was of no causative significance. Neither the hand rail nor the stair nosings made any contribution to Ms Egan's fall.

Liability conclusion

1. Accordingly, in my view Ms Egan's case must fail.
2. The Club also raised the question of intoxication. Ms Egan had a long history of excessive alcohol consumption. In 2010 she "attended for detox" and an alcohol assessment form at that time recorded that she consumed daily 1 to 2 litres of wine for the past 30 years, and indicated that the only occasion for abstinence was if she was in hospital. The report refers to her as an alcoholic. Another report of the same month also records a similar period and history of alcohol consumption.
3. Ms Egan accepted that she endeavoured to be honest and accurate about her alcohol problems when she attended for detox, and there was no real attack on the reliability of the statements contained in those forms. She also accepted that she had alcohol problems lasting 30 years. However, on this occasion Ms Egan asserted that she had only consumed two to three glasses of wine that evening and none earlier in the day. This evidence is contrary to the ambulance report and the hospital notes recorded immediately after the fall. The ambulance report records that she was heavily intoxicated, had been drinking since 2pm, had approximately six drinks at home, then a carafe of wine "plus more" at the club. The hospital triage form records "10 to 12 glasses of wine". The ambulance report was confirmed by the oral evidence of the ambulance officer, which I accept.
4. In view of the contemporaneous records, and the other evidence, including Ms Egan's unsteadiness in the video, I do not accept Ms Egan's evidence that she only consumed two or three glasses of wine during the day of her fall. I am persuaded that Ms Egan was under the influence of alcohol and thus intoxicated, and that it affected her capacity to exercise reasonable care for her own safety. In my view, her capacity to safely descend the stairs and to retain a grip on the hand rail was a matter affected by her being heavily intoxicated. That conclusion is based upon the level of intoxication recorded by the ambulance officer, the alcohol consumption recorded in the ambulance and hospital records and her unsteadiness in descending the stairs as shown on the CCTV footage.
5. Under s 50(2) of the Civil Liability Act 2002 I am not to award damages unless I am satisfied that the injury (or another injury) "is likely to have occurred even if the person had not been intoxicated". I find this hypothetical question a difficult one to assess. The basis of assessing what likely would have happened to Ms Egan had she not been intoxicated is elusive. However, there was nothing inherently dangerous in the stairs. Other patrons, the old, the young and the middle-aged, in part shown by the CCTV footage, regularly travelled up and down the stairs without incident.
6. There was some evidence that there had been two falls in the decade leading up to Ms Egan's fall. However, I am unable to conclude that an injury was likely, that is, that Ms Egan was more likely than not to have suffered an injury if she was not intoxicated. The other patrons using the steps shown in the footage show that this was not the case.
7. Further, I would conclude that intoxication contributed to Ms Egan being unsteady on the steps, relinquishing her grip on the hand rail, and losing her balance on the occasion of her fall. Accordingly, s 50(2) provides another reason why Ms Egan is not entitled to damages.

Quantum

1. In case I am wrong on liability, I have considered the damages to which Ms Egan would be entitled if she was successful. Those damages largely fall into three heads: non-economic loss, past and future economic loss and cost of care.

Non-economic loss

1. Ms Egan makes a claim for 36% of the maximum case, whereas the club accepts that the loss of sight in an eye is serious and says that 30% is the appropriate percentage. Principally, the damage is the loss of sight in one eye. The difference between the parties is perhaps even less. One recognises that Ms Egan asserts that one aspect of the damage was the exacerbation of depression, but I am not persuaded that the evidence establishes this disability as having been caused by the injury. I am, however, persuaded that the loss of the sight of one eye is significant warranting 33% of a most extreme case, which is an amount of $181,995.

Economic loss

1. Ms Egan resigned from employment about four months after the accident citing the loss of her sight in her right eye and back problems as her reasons. She was not favoured with good health before the fall. Her health problems included excessive alcohol consumption, depression, back pain, neck pain, emphysema and diabetes. These problems increase the likelihood that Ms Egan's employment would have ended earlier than normal in any event. Her reference to back pain upon resignation is further evidence of this. Her employment income of about $14,000 net, as shown in her most recent tax return, was a modest amount, even relative to a disability pension, Social Security benefits and the like. The modest level of that income does not suggest a reason why, when she is afflicted with her various health problems, she would likely continue to work.
2. However, I accept that Ms Egan's eye injury diminished her capacity for work. As I said, her earnings in her most recent tax return were approximately $14,000 net of tax in the year before the fall. I think a further four years of work is a fair assessment of the period she might have been expected to continue to work and accordingly, I have awarded her $56,000 in respect of her lost earning capacity as a result of the injury. This sum is intended to include both economic loss already incurred, and future economic loss, and it is intended to serve as an assessment of the level of buffer that she might be entitled to by reason of her diminished capacity for work. It is also intended to include interest.

Care

1. Finally, I must assess whether Ms Egan is entitled to damages for gratuitous care. Ms Egan continues to drive and regularly minds her grandchildren. In a report by Vision Australia, she did not report any difficulty with managing appliances, pouring, eating, personal care, telephone, handling money or shopping. She stated that she was coping with the change in her vision and did not require any services from Vision Australia.
2. In my view, whilst her capacity to engage in some of these domestic activities has diminished, I am not persuaded that her eye injury prevents her from doing them, nor do I accept that she has chosen not to do them.
3. Ms Egan and Mr Israel, in my view, also tended to exaggerate the effect of the injury upon their daily lives and minimised the extent of the impact of Ms Egan's other significant health problems. The assertion that Mr Israel did 22 hours per week domestic care for Ms Egan because of her eye injury appeared to be a gross exaggeration. I was not impressed with the evidence of Mr Israel or Ms Egan, particularly in relation to the issue of care. Both seemed over-anxious to refer to matters that helped her case, such as her asserted inability to do domestic tasks.
4. Section 15(2) of the Civil Liability Act 2002 provides: "(2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury."
5. Gratuitous attendant care services has been defined as attendant care services: "(a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay."
6. Any services provided by Mr Israel must be within the definition of gratuitous attendant care services insofar as they are services of a domestic nature, or services that aim to alleviate the consequences of an injury (see definition of "attendant care services"). However, I am not satisfied that paragraphs (b) and (c) of s 15(2) are satisfied. Mr Israel may have increased his contribution to household tasks, but in my view that need did not arise solely because of Ms Egan's eye injury, nor could I conclude that those services would not have been provided but for the injury.
7. The medical records after the fall indicate that Ms Egan's pre-existing health problems were the basis of her complaints and medical attention. She sought advice and assistance on matters other than her eye problem, and it is reasonable to conclude that those health complaints were the principal basis for the need for gratuitous care services. I am fortified in this view because of the contents of the report of Vision Australia.
8. In addition, I am not satisfied that Mr Israel provided domestic services solely for Ms Egan for the minimum requirement of six hours per week for six months. What services were provided were largely to alleviate the other health problems of Ms Egan.
9. In my view, Ms Egan would not be entitled to damages for gratuitous care in the event that she succeeded in liability, and thus the appropriate amount of damages, if she were successful, would include $181,995 for non-economic loss, $56,000 for economic loss, past and future, and agreed past medical expenses of $6,297.05.
10. Accordingly, the orders of the Court should be: 1. Judgment for the defendant. 2. Plaintiff pay the defendant's costs.

Indemnity costs application

1. The Club seeks an order that costs be paid on an indemnity basis from 27 June 2012, or alternatively 28 June 2012, on the basis of an offer of compromise served on 27 June 2012, or alternatively the Calderbank offer dated 28 June 2012.
2. Turning first to the offer of compromise. There is no suggestion that the offer is not made in accordance with r 20.26 of the Uniform Civil Procedure Rules 2005. The offer seeks to compromise the proceedings on the basis that there be a verdict for the defendant and that each party bear its own costs. Ordinarily, offers of compromise must not include an amount for costs and must not be expressed to be inclusive of costs (see r 20.26(2)(c)). However, r 20.26(3) states: "(3) An offer under this rule may propose: (a) a judgment in favour of the defendant: (i) with no order as to costs…"
3. Generally an offer which provides that there be no order as to costs is no different in substance from one that provides that each party is to bear its own costs. Thus, notwithstanding the technical non-compliance with r 20.26 because of the reference to each party bearing its own costs, I am not inclined to reject the Club's claim for costs on that basis.
4. However, it is also necessary that the offer be a genuine offer of compromise in order to enliven the special costs provisions, see Tickell v Trifleska Pty Ltd (1990) 25 NSWLR 353; Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358. As is referred to in Ritchie's Uniform Civil Procedure NSW at [20.26.10]: "what constitutes a compromise involves an impressionistic judgment that depends on the totality of the circumstances".
5. The rule does not require that the offer be substantially less than the amount claimed or recovered. At [42.13.14] of Ritchie's it was suggested that a compromise of $10,000 on a $340,000 claim was relevantly genuine, given the strength of the case in light of the evidence. Those cases referred to in Ritchie's at [42.13.14] seem to involve some monetary payment of, in two cases $10,000, and in one case $2,000, flowing from the offeror. A mere invitation for the offeree to surrender might be thought to be insufficient to constitute a true compromise, although in Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368, as Ritchie's indicates, an offer that is almost a mere invitation for the offeree to surrender may involve a sufficient element of compromise, but it is unlikely to do so unless the claim is particularly lacking in merit.
6. Although I have found in favour of the defendant, I am not able to conclude that at the time of the offer the claim was particularly lacking in merit. An offer by a defendant at the commencement of proceedings for the plaintiff to concede a verdict for the defendant, and each party bear its own costs is really an invitation by the offeree to surrender. That circumstance might be distinguished from the same offer made partway through the proceedings, or at least after a defence has been filed. In this case, there is some evidence that by the following day, 28 June, the defendant had incurred "approximately $10,000" costs, which it was proposing to forego in its offer of compromise. However, the material does not establish that as at the date of the offer the defendant had incurred any substantial costs unrelated to the making of the offer. What is apparent is that by 28 June, the day after the offer, the defendant had written a lengthy Calderbank letter and did request some particulars. The substance of that request for particulars is not in evidence before me, and I am unable to assess whether it involved substantial costs or not.
7. In all the circumstances, in respect to the offer of compromise, I am not persuaded that it involved a genuine compromise, principally because it came so early in the proceedings, and the evidence of what costs were incurred does not satisfy me that this was other than an invitation for the offeree to surrender, see generally Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) (No 2) [2014] NSWCA 391.
8. That brings me to the question of the Calderbank offer. It is more difficult for an offeror to succeed in obtaining an indemnity costs order arising from the rejection of a Calderbank offer because it requires proof that the rejection was unreasonable. The offer effectively invited Ms Egan to abandon the claim shortly after commencement without any reward, before the usual curial processes had been undertaken, and before a defence had been filed. At that stage the failure of Ms Egan to accept the offer was not unreasonable.
9. Had the offer of compromise been repeated after the defence had been filed, or at least if there had been more persuasive evidence of substantial costs being undertaken before the offer was made, then the position may well have been different.
10. I am not persuaded to make any special order in respect of costs.

Orders

1. Accordingly, the orders of the Court are: 1. Judgment for the defendant. 2. Plaintiff pay the defendant's costs. 3. The application for indemnity costs is dismissed.

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