Langendoen v Coolangatta Estate Pty Ltd

Liability 36The first step in considering the question of liability is whether or not the defendant had failed in its duty of care owed to the plaintiff as an occupier. This question does not take into account, at least at this stage, the issue of the plaintiff's intoxication. 37The complaint made by the plaintiff was that the absence of lighting and a railing on the wall rendered the wall, as a place on which a person might reasonably sit, as a source of danger. The duty of care owed by an occupier to a legal entrant was plainly set out in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488. An occupier has a duty to a lawful entrant to "take reasonable care to avoid a foreseeable risk of injury to the person concerned" . This formulation is consistent with Section 5B of the CLA. Even if some distinction could be discerned from the section I am satisfied that the risk of harm to the plaintiff was foreseeable and the risk was not insignificant. I am further satisfied that a reasonable person in the defendant's position would have taken precautions against the risk. 38The defendant ultimately did not make any submissions to resist a finding of breach of its duty as an occupier. I am satisfied that the absence of lighting and a rail on the wall constituted a foreseeable risk which was not insignificant and which a reasonable person in the defendant's position would have guarded against. Constable Walsh's evidence was that the light socket on the verandah did not have a bulb in it. A simple precaution of inserting a bulb would have cast light on the void behind the wall and warned the plaintiff of the drop behind the wall. 39Subject to my consideration of Section 50, I am satisfied that the plaintiff's injury would not have occurred but for the breach of duty outlined above. I am therefore satisfied that the plaintiff, upon whom the onus at this stage squarely lies (Section 5E), has established the issue of causation in accordance with Section 5D. 40Each side relied on an expert report (Exhibits C and 5 respectively). I join with learned counsel for each party in their view that I would not be greatly assisted by these reports. Dr Cook's report contains photographs of the wall as it now is having had a safety screen inserted. Dr Cook's observations about the lighting do not take into account whether or not the curtains were partially drawn or the people sitting on the wall, no doubt obstructing the dispersion of light to the void beyond the wall. The responsible attitude of counsel for the defendant in making no submissions on primary liability is an indication of the clarity of the breach of the duty of care owed by the defendant to provide lawful occupants of its premises with a safe area in which to gather and socialise. 41Turning now to the issue of intoxication, I have already found that the plaintiff was intoxicated within the definition set out in Section 48. Section 50 is in the following terms: "50 No recovery where person intoxicated (1) This section applies when it is established that the person whose death, injury or damage is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the death, injury or damage intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the death, injury or damage to property (or some other injury or damage to property) is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the death, injury or damage. (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) This section does not apply in a case where the court is satisfied that the intoxication was not self-induced." 42My initial reading of Section 50(1) was that the question of whether the plaintiff's "capacity to exercise reasonable care and skill was impaired" should be assessed on a general basis. Having regard to my finding of the plaintiff's intoxication I would have had little difficulty in finding that she was impaired as required. However, this interpretation would clearly be wrong. In Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Allsop P said this in paragraph 36: "The requirement of s 50(1) was not established. The "extent" of the intoxication relevant for such a finding will depend on the circumstances and the subject or subjects in respect of which the reasonable care and skill may be impaired. Operating machinery, driving a car or flying a plane may be tasks where very little alcohol would be required for the person's capacity to exercise skill and care to be impaired (adequately satisfied by six beers and two bourbons). Here, the care and skill was walking over open ground to get to a destination. There was no reason for him, in the dark, to suspect such a danger as befell him." 43In Dries the task being undertaken by the plaintiff was simply walking over open ground. In the present case the task is even simpler. It is no more than the plaintiff sitting down, or having sat down, straightening up after bending to release her dress from her shoes. 44The onus is on the defendant to establish the application of Section 50(1). The defendant relies on the matters I have outlined above in regard to the plaintiff's intoxication together with an expert report from Professor White (Exhibit 4). 45Constable Walsh's evidence, as I have said above, is generally acceptable but it is limited by his concession that his observations would have been influenced by his own intoxication. There are also some inconsistencies with the evidence of other witnesses (for example the degree of the plaintiff's intoxication after dinner) and his lack of knowledge of some matters (for example, whether the plaintiff bent down to untangle her dress immediately before the fall). 46Professor White's report naturally suffers from the unreliability of the material that he was presented with, together with the speculative nature of the comments of people such as Constable Walsh which were either not borne out in oral evidence or subject to their own internal unreliability (for example derived from Constable Walsh's own intoxication). In addition, Professor White had reference to the statement of a Ms Byrne who was not called to give evidence. 47Professor White's ultimate conclusion is that "it is more likely that the loss of balance she described was due principally to alcohol intoxication". I do not think I can reach this conclusion on the evidence before me. I think the following matters arising from Professor White's report highlight my difficulty: (a)Included in his 'Background' Professor White refers to Constable Walsh's statement that the plaintiff was affected by alcohol after dinner. This is entirely inconsistent with the evidence of Ms Moore and Ms Beniuk, both of whom I found to be very reliable witnesses. (b)Professor White refers to the tolerance created by regular alcohol consumption. He recognises that the plaintiff was a regular drinker but I wonder if he was aware of the extent of her regular drinking. (c)Professor White refers to the history given to Dr Samuell, which I think is unreliable, and then himself comments on the unreliability of not knowing the size of the drinks that the plaintiff was taking. (d)Professor White refers to one version of events being that the plaintiff tried to put one or both of her arms around Constable Walsh. He continues: "It seems unlikely that this would have occurred had she not been intoxicated". While I tend to agree that the plaintiff may well have been influenced by what she had had to drink in the friendly gesture, I think it is something of a quantum leap to suggest that it is unlikely that she would not have done so had she not been intoxicated. (e)Professor White then goes on to say that sitting on the wall above a significant drop is itself an indication of the plaintiff's intoxication. The difficulty with this observation is that the plaintiff, by reason of the poor lighting, would not have been aware of the drop behind the wall. She would also have been reinforced in her assumption of the safety of the wall by the other people already sitting on it. 48What I do find useful in Professor White's report is his statement that "the main signs of intoxication are slurred speech, staggering gait and glazed eyes". Not a single witness, including Constable Walsh, suggests observing any of these conditions affecting the plaintiff. 49Bearing in mind that my decision is whether the plaintiff's capacity to sit down, or perhaps straighten up, was impaired by reason of her intoxication I do not think that I can go that far. Had any of the main signs of intoxication referred to by Professor White been present then perhaps the defendant would have proved its case. Ultimately it is to be borne in mind that the only witness to the final events was Constable Walsh and, as I have said above, his observations suffer from the effects of his own intoxication. 50By arrangement between the parties I was provided with a supplementary report of Professor White dated 8 November 2012. He is responding to the plaintiff's expert, Professor Christie. I do not think this report takes the matter much further. It has the same dependence on variables which ultimately are different to my findings. Professor Christie's reports also do not assist for the same reasons. The range of possibilities considered by Professor Christie include variables as to timing, amount of consumption, alcohol content and independent observations all of which were either unknown in my final analysis or not capable of fine calculation. 51Consequently I cannot find that the plaintiff is not entitled to damages by reason of Sections 50(1) and (2). To be quite clear, my findings are firstly that the requisite degree of impairment has not been established and secondly that the accident is likely to have occurred even if the plaintiff had not been intoxicated. 52My finding of intoxication, however, triggers the application of Section 50(3) to the effect that there is a presumption of contributory negligence that is to be assessed at a contribution rate of 25% or more. This presumption does not arise if the court is satisfied that the plaintiff's intoxication "did not contribute in any way to the cause of the ... injury or damage". I am not so satisfied. In my view the plaintiff's condition did contribute because had she not been intoxicated she may well have been able to better control her movements in sitting down or getting up and been able to recover from the loss of balance. 53The defendant submitted that if I assessed contributory negligence it should be at 50%. The plaintiff submitted that I should not exceed the mandatory 25%. One of the difficulties that I face is that having not accepted the plaintiff's evidence about the events after she arrived in Constable Walsh's room, and because of the deficiencies in the balance of the evidence, I am left with little basis upon which to establish exactly how intoxicated the plaintiff was. I have not been able to find the necessary level of intoxication to trigger Section 50(1); however, I do think the plaintiff was significantly more intoxicated than she admits. The assessment of contributory negligence is always difficult but in my view is more difficult where there is uncertainty of the type to which I have just referred. I also need to take into account that the assessment of the plaintiff's negligence is by way of contribution to the cause of her injury. This brings into play the overall cause of her injury, namely the hidden drop behind the wall and the absence of a railing or other barrier. Accepting there is a degree of speculation in my assessment I think that 40% is a fair conclusion arising from the necessary matters to be considered.

Damages 54The plaintiff submitted that non-economic loss should be assessed at 30% of a most extreme case. The defendant suggested 25%. Although the monetary product of these percentages is very different, the percentages themselves display only a 5% difference. This is the extent of the difference referred to by Basten JA in Clifton & Ors v Lewis [2012] NSWCA 229 at paragraph 56. I could not say that either submission is wrong but simply express my view that the two submissions probably represent the appropriate range. I have decided to assess damages closer to the plaintiff's submission at 28% principally because of the dramatic effect the injury has had on the appearance of the plaintiff's shoulders. This is a deformity with which the plaintiff will have to live for the remainder of her life together with the effects of the non-union of her fracture and the associated instability and pain. Pursuant to Section 16 of the CLA, 28% has a monetary equivalent of $75,000. 55In respect of past economic loss, the plaintiff's claim is for $14,470.83 which represents the workers compensation payments she has received. The defendant said this figure was "mathematically agreed". I am not sure what this means but do note, in fairness to learned counsel for the defendant, that no submissions were made that I should not accept the figure. I do accept it. I also allow lost superannuation benefits at 11%. This is $1,591.79. 56For future economic loss the plaintiff submitted there should be a buffer in the order of $40,000 to $50,000, being approximately one year's wages. The defendant submitted that there should be no allowance for future economic loss, principally because the plaintiff said in her evidence that she could do fulltime work. 57The test that I need to apply is whether the plaintiff has an incapacity to work and, if so, whether that incapacity is likely to be productive of economic loss (Rabay v Bristow [2005] NSWCA 199). 58Dr Barrett, who I think has accurately summarised the plaintiff's condition said that the plaintiff is fit to continue work but with restrictions in regard to lifting and use of her arm above chest height. Bearing in mind the plaintiff is right handed, these restrictions indicate an interference with her capacity to work as a teacher's aide; however, I do not think that they are likely to be productive of economic loss to the extent submitted by the plaintiff. I do agree that there is a probability that over time the plaintiff will be at a disadvantage on the open labour market or in need of time off from work due to her injuries so that a buffer is an appropriate method of compensating. I think this buffer should be $15,000. 59In assessing future economic loss I have taken into account, for purposes of Section 13 of the CLA, that I am satisfied that but for the accident the plaintiff would have continued to work in a teacher's aide type role to age 65, that this would have been usually on a part-time basis and would have been subject to the usual vicissitudes of 15%. The buffer I have allowed takes into account the reduction for vicissitudes and also any allowance for the loss of superannuation benefits. 60Past out of pocket expenses were agreed at $24,838.28. In this instance the defendant's agreement was unconditional rather than being mathematical. 61The plaintiff's claim for future medical expenses was not precisely quantified but derived from the schedule in the Second Amended Statement of Particulars. The assessment generally relies on the opinion of Dr Barold whose report is part of Exhibit A. I think Dr Barold's assessment is generally of a "Rolls Royce" regime rather than an indication of reasonable needs. This applies both to his assessment of medical expenses and future care needs. I do, however, accept that the plaintiff will need to see a general practitioner fairly regularly and a specialist from time to time. I do not see why the plaintiff needs to see a general practitioner six times a year or a specialist twice a year. 62I also accept there is a need for some physiotherapy and continuing medication. The plaintiff is not likely to have surgery nor undergo psychiatric consultations. I do not see a need for occupational therapy, hydrotherapy or "future investigations". 63I think an allowance of $50 per week for all medical consultations and the cost of medications is appropriate. The plaintiff's life expectancy is 35 years, which produces a 5% multiplier of 875.6. At $50 per week the result is $43,780. 64The plaintiff's claim for past care is based on the reports of Dr Barold and of Ms Hildebrand. The plaintiff took the approach in evidence of simply saying that she had told Ms Hildebrand the truth about her needs and left the matter there. The assessment of these needs, however, includes not only the investigation of the reasonable requirements of the plaintiff but, as far as gratuitous care is concerned, evidence of the number of hours that have been performed by the person who has done the work. I do not think there is satisfactory evidence of this element. I note Ms Hildebrand herself says: "Whilst assistance required in the past was difficult to estimate exactly, the following was agreed as a reasonable summary of the support required, over time". She then sets out some figures based, as I read them, to a large degree, on her assumptions of the plaintiff's needs rather than the actual time for work that had been provided. 65The plaintiff's approach in submissions was to say that gratuitous domestic care should be averaged at 10 hours per week over the whole period from the date of accident to date. I have no difficulty with the general approach of 'averaging' but I do not think it appropriate in this case. The plaintiff's claim for gratuitous domestic assistance has been made under both Section 15 and Section 15B of the CLA. Each of those sections has a 'six hour/six month' threshold. It follows that by averaging the hours at 10 hours, there cannot be an inclusion of two lots of six hours. There is a further complication, which is that since February 2009 the plaintiff has been paying for four hours per week of commercial assistance. If this is deducted from the number of hours attributed to Section 15 damages then the six month threshold will not be met (the fall was in November 2008). 66When these matters were pointed out to plaintiff's counsel he amended his average to 12 hours per week. I do not think this solves the problem. Firstly I am concerned that figures should not be amended to circumvent the provisions of the CLA and secondly, without a delineation between the Section 15 and Section 15B damages it does not necessarily follow that Section 15 damages will remain available because, after the reduction of the four hours of commercial care, there would not necessarily be six hours remaining. 67In addition, I have difficulty in any event in accepting the views of Dr Barold and Ms Hildebrand. Based on the plaintiff's evidence, as well as the view of Dr Barrett, I think that the four hours of commercial care that she receives meets her requirements. I do accept that the plaintiff would have needed more than four hours per week of assistance in the weeks and months following the accident but I am not satisfied that this would have continued beyond February 2009, at least to a degree that would have allowed for a further six hours in addition to the four hours of paid assistance. Accordingly I think the claims under Section 15 and 15B must fail. 68The plaintiff is, however, entitled to be reimbursed for the four hours per week for which she has been paying, at $20 per hour, since February 2009. Giving her the benefit of this care having commenced at the beginning of February 2009, I allow $80 per week for 197 weeks which is $15,760. 69For the future I think the four hours per week should continue for 30 of the 35 years of the plaintiff's life expectancy. The plaintiff submitted the rate should be $35 per hour. The defendant submitted that $20 per hour was appropriate because this was what the plaintiff was now paying. $35 per hour per is less than the commercial rate suggested by Ms Hildebrand; however, there is also force in the defendant's argument. I think I should take into account both arguments on the basis that sooner or later the plaintiff is likely to lose the beneficial rates that she now pays. Accordingly I will assess future care at $27.50 per hour for 4 hours per week for 30 years. On the 5% tables this is $90,420. 70A summary of the damages I have awarded is as follows: Non-economic loss $75,000.00 Past economic loss $14,470.83 Past lost superannuation benefits $1,591.79 Future economic loss $15,000.00 Out of pocket expenses $24,838.28 Future medical expenses $43,780.00 Past commercial assistance $15,760.00 Future commercial assistance $90,420.00 Total $280,860.90

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Judgment (7 paragraphs)

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Cases Cited (6)