Hornsby Shire Council v King [2005] NSWCA 67 | Case summary

Monday, 21 March 2005 HORNSBY SHIRE COUNCIL v JOANNA KING Judgment 1 MASON P: I agree with Ipp JA. 2 IPP JA: On 21 July 2000 the opponent (Ms King) fell at the intersection of Muriel Lane and Florence Street, Hornsby. She had walked across Muriel Lane where it intersected with Florence Street. She intended to continue walking, in the same direction, along a footpath that ran adjacent to Florence Street. 3 A pram ramp led from Muriel Lane to the footpath in Florence Street. There was a metal box drain between the pram ramp and the end of the verge that ran along Muriel Lane. The lid of the box drain was more or less the same height as the top of the verge. There was a gap between the lid of the box and the surface of Muriel Lane, forming, as it were, a hole in the side of the verge. The box itself extended, to a degree, across the pram ramp. Thus, a pedestrian, intending to cross Muriel Lane opposite Florence Street so as to walk along the Florence Street footpath (as was Ms King), would have to walk over or past the open box drain. 4 As Ms King was so walking, her left foot hooked into the hole of the box drain. This caused her fall. She testified that she was looking where she was going but had not seen the box drain. 5 Garling DCJ found that the box drain was not obvious and constituted a trap to pedestrians. 6 The claimant (the Shire) was the road authority for the area where Ms King fell. It had not installed the box drain. That had been done by a developer more than 30 years before Ms King's accident. His Honour held, nevertheless, by reason of the duty of care the Shire owed "to members of the public, including [Ms King], who were walking in this area", it should have carried out reasonable inspections in the vicinity. The duty in question upheld by his Honour was a common law duty. The judge found in effect that, had the Shire carried out such inspections, the danger constituted by the box drain "could easily and cheaply have been remedied" by it. After Ms King's fall, this is what the Shire did. His Honour held that, by failing to inspect the area in that way and remove the danger, the Shire had breached its common law duty of care. 7 The judge held that the Shire's breach of duty had caused Ms King to fall and, hence, it was liable to her for the damages she sustained in consequence. His Honour assessed her damages in the sum of $29,738 and granted a verdict in her favour in this sum. 8 The Shire seeks leave to appeal against the decision of Garling DCJ whereby it was held liable to Ms King. The matter proceeded on the basis that, if the application for leave to appeal were granted, the appeal would be heard concurrently. 9 There was evidence before the trial judge to the effect that the metal box drain did constitute a danger to pedestrians, but that danger was not obvious. Accordingly, it was open to his Honour to infer that, had the Shire exercised due care (as contended for by Ms King), it should have discovered the metal box drain and removed the danger constituted thereby. For this reason, I am not able to discern any error on the part of the judge in finding that Ms King's injuries were caused by a breach of duty by the Shire. 10 In my view, the Shire has no prospects of succeeding in its proposed appeal. On this ground, I would dismiss the application for leave to appeal. 11 Ms King, in turn, applied for leave to cross-appeal on the basis that, were her application to be granted, the cross-appeal would be heard concurrently with her application. 12 The cross-appeal challenges his Honour's assessment of damages. The draft notice of cross-appeal asserts: "1. His Honour's assessment of damages was too low. 2. His Honour was in error when he assessed: - 2.1 economic loss to the day of trial 2.2 future economic loss 2.3 damages for superannuation loss 2.4 non-economic loss 2.5 future out-of-pocket expenses." 13 The notice of cross-appeal is deficient as it does not set out the grounds on which it is said the judge erred. The written submissions filed on Ms King's behalf, however, do set out her arguments. 14 Ms King's main complaint was directed to the trial judge's decision that he was "unable to find that [Ms King] does have a future loss of earning capacity". This finding was based on the judge's view of the evidence in relation to s 13(1) of the Civil Liability Act 2002 (NSW) which provides: "(1) A Court cannot make an award of damages for future economic loss unless the claimant first satisfies the Court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a Court determines the amount of any such award of damages for future economic loss it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events might have occurred but for the injury." 15 His Honour said: "[I]n my view there is not sufficient evidence when I take into account s 13 to allow me to make any award for future loss of earning capacity." 16 The judge made no findings as required by s 13 and, in particular, made no "assumptions about future earning capacity or other events" in accordance "with the claimant's most likely future circumstances but for the injury". 17 As regards the injuries in fact sustained by Ms King, the judge said: "I find as a result of this accident [Ms King] suffered a significant closed head injury and that the fall dissected the right carotid artery. She suffered a transient left hemiparesis. She also suffered a neck injury. I am satisfied that she has suffered injury to the right frontal region of the brain and as a result she does have difficulty with memory, concentration and with problem solving and some depression. [Ms King] is 51 years of age, she suffered a very serious injury and made quite a good recovery but she continues to suffer with some problems and will suffer those problems in the future as has been set out by Dr O'Sullivan and Mr Taylor." 18 Dr O'Sullivan, a neurologist, had testified that, as a consequence of her closed head injury and a dissection of the right internal carotid artery, Ms King had sustained an injury to the right frontal region of the brain. He said that this resulted in her "having difficulties with her memory, concentration and problem solving". 19 Mr Taylor, a clinical forensic psychologist, said: "[Ms King] is experiencing quite significant impairment in the areas of concentration, attention and memory. It is reasonable that these areas of impairment would have arisen as a direct consequence of her head injury." 20 At the time of her fall, Ms King was studying full-time to become a registered nurse. She had, in the past, been employed as a nurse's assistant. When she was seen by Mr Taylor, she was and had been experiencing difficulties at university in connection with her nursing studies. Mr Taylor said in this regard: "Her results on the tests are quite consistent with the history that she has given with regard to difficulties she is experiencing in her nursing studies. It is felt that the extent to which she is going to be able to efficiently work as a nurse may be compromised due to the difficulties she is experiencing in attention, concentration and memory. It would be expected that when she becomes more fatigued, her abilities in these areas will further weaken. The same may also occur when she is under pressure. The results then do cast some doubt as to her ability to work effectively in many areas of nursing." 21 Ms King testified that she had difficulty with her short-term memory and in comprehending and carrying out instructions. She had difficulties in relation to her studies and, in particular, with new areas of study. She did not take notes as well as she did prior to the accident and was struggling with her university course. In addition, she had experienced some personality problems and had lost friends (although she said that she was rebuilding those relationships). The judge regarded Ms King as an honest and straightforward witness and accepted her evidence. 22 In my opinion, in the light of the evidence of Ms King, Dr O'Sullivan and Mr Taylor and the judge's acceptance of that evidence, his Honour could have made findings as required by s 13 of the Civil Liability Act. 23 In addition, it was open to his Honour to make an award of a buffer. See for example, K'Mart Australia Ltd v McCann [2004] NSWCA 283; The Nominal Defendant v Lane [2004] NSWCA 405 and Briscoe-Hough v AVS Australian Venue Security Services Pty Limited [2005] NSWCA 51. 24 In my view, his Honour erred in considering that he was not able to make an award in respect of future economic loss. This gave rise to an injustice to the claimant and, on this ground, I would grant the application for leave to cross-appeal and uphold the appeal in this respect. 25 The next question concerns the order this Court should make in lieu of the decision refusing to award any amount in respect of future economic loss. 26 Mr G B Hall QC, who, together with Ms Welsh, appeared for Ms King, submitted that a new trial as to damages should be ordered. 27 Mr Davies SC, who, together with Mr Confos, appeared for the Shire, opposed the making of such an order. He drew attention to the fact that at the trial Ms King claimed $34,353 as being her future economic loss for a period of two years only, together with $25,000 as a buffer "for loss of chance to work to her full potential as a nurse". He submitted that this Court was well able to make a decision itself as to the amount of future economic loss that should be awarded. In support of this submission, he said that he would be arguing only that one of the integers Ms King took into account in the calculation of the sum of $34,353 was wrong and, as a general proposition, the sum of $25,000 as a buffer was too high. Mr Davies submitted that these being the only matters at issue in relation to future economic loss, there was little point in ordering a new trial and the delay and the expense to the parties would not justify such an order being made. He submitted that the trial had been conducted on the basis that the claim for future economic loss was confined to the sums of $34,353 and $25,000 and a new trial should not be ordered by reason of any argument on the part of Ms King that she wished, at trial, to put the case differently. 28 In my view, Mr Davies's submissions are cogent and should be upheld. In the light of what, in effect, amounts to limited concessions on his part as to the way in which the future economic loss should be computed, this Court is indeed able to determine what amount should be awarded under this head. 29 Ms King's claim for $34,353 was said by Mr Hall to be "a continuing loss of $347 per week for 2 years until [Ms King] qualifies as a registered nurse". Three hundred and forty seven dollars multiplied by 99.4 (being the relevant number of weeks) equals $34,353. 30 Mr Davies challenged the amount of $347; this was the integer that he submitted was wrong. This amount represents $564 per week (being the net earning of a registered nurse) less Ms King's actual income in 2002 of $217 per week. 31 Ms King only worked part-time in 2002. For the year ending 30 June 2000, she had earned $406 per week. She was then working full-time. Mr Davies submitted that the future loss of earnings should not be calculated by reference to what Ms King earned by working part-time after the accident but by reference to what she was capable of earning at the time of the accident ($406 per week). He argued that this represented her true loss of earning capacity. 32 In my view, Mr Davies's submissions are correct. On the basis contended for by Mr Davies, over the two-year period in question Ms King's continuing loss amounts to $15,705. 33 That period of two years represents the degree to which, according to the way the case was put on Ms King's behalf at the trial, the time she would take to become a registered nurse would be extended by reason of her injuries. Mr Davies submitted that a more reasonable period would be one year. The evidence, however, is to the effect that Ms King's performance at university was hindered for at least two years and Mr Hall's argument as to the period should be upheld. 34 In regard to the buffer, I think that Mr Hall's contention should be accepted and a buffer of $25,000 should be awarded. The amount is relatively small and Ms King's injuries are potentially serious. It is quite possible that, by reason of her brain damage and consequent memory and concentration problems, and also the personal difficulties she appears to experience, she may find it difficult to retain (and, if fired, to obtain) employment as a nurse's assistant. 35 The judge assessed non-economic loss on the basis of 25% of a worst case and awarded $24,000 under this head. In written submissions, Mr Hall contended that this assessment "clearly fell below the range reasonably open on the evidence". I do not agree and would reject the argument in this respect. 36 As regards past economic loss, the judge said: "Whilst [Ms King] was doing a university course full-time she also wanted to work to support herself and she was clearly unfit for a period of time in doing anything. I think she then, as I recall, missed the next semester before returning to university. She then changed from full-time to part-time and she started to do some nursing work in April 2002. She is still studying. [Ms King] returned to work in November 2000, had difficulty, but continued to work on a part-time basis. She was off work from 21 July 2000 to November 2000, say 16 weeks, which I allow her at $329 per week and allow the sum of $5,264." 37 As I understood Mr Hall, the claim for a higher amount was put on the basis that past economic loss should have been calculated by reference to the income Ms King earned for the 12 months ending 30 June 2000. This the judge did not do. It is implicit in his Honour's reasons that he considered that Ms King's decision to work part-time and not full-time during the relevant period was not caused by the accident. I am not persuaded that he was wrong in this respect and I would not uphold the challenge to this head. 38 As regards the complaint about the amount awarded in respect of future out-of-pocket expenses, no argument was addressed to the Court in this respect. 39 As regards the damages for superannuation loss, this needs to be recalculated and I propose that Ms King be given 14 days from delivery of the judgment to file written submissions in this respect and the Shire a further 14 days after the filing of Ms King's submissions. The Court will then give judgment on this issue. 40 Accordingly, I propose the following orders:

Hornsby Shire Council v King

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