MANSFIELD v NELSON BAY BOWLING & RECREATION CLUB

CATCHWORDS: Liability of club for hole in public open space used by patrons to park and for pedestrian access to club premises.

Bennett v Manly Council & Sydney Water Corporation (2006) 146 LGERA 60, Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241, CASES CITED: Bulmer v Ryde Municipal Council (1976) 34 LGRA 300, Sutherland Shire Council v Heyman (1985) 157 CLR 424, Turnbull v Alm & anor [2004] NSWCA 173 Wyong Council v Shirt (1980) 146 CLR 40

PARTIES: Michelle Ann MANSFIELD NELSON BAY BOWLING & RECREATION CLUB ACN 071 145 287

P J Kirby - Plaintiff COUNSEL: D S Weinberger - Defendant

Rankin Nathan Lawyers - plaintiff SOLICITORS: McCabe Terrill - defendant

1 In this matter Michelle Anne Mansfield fell into a large hole when walking to the home of a friend after attending the Nelson Bay Bowling and Recreation Club. The incident occurred at approximately 11.15pm on 12 September 2002. Alcohol was not an issue in the claim. Ms Mansfield holds the club responsible for the hole into which she fell and seeks damages for injuries that she suffered and from which she claims that she is considerably disabled.

2 The hole was in an area of public open space adjacent to a bitumen covered public car park. It was acknowledged that the car park and the area of open space was owned by Port Stephens Council and that the Council ultimately attended to the restoration of the area of the hole.

3 Ms Mansfield's evidence that she fell into the hole was not challenged. There was no challenge to the evidence that the hole was unbarricaded and that its dimensions were estimated to be more than half a metre deep and 2 to 3 metres wide.

4 There was also unchallenged evidence that the position of the hole was such that it was poorly lit. Issues relating to obvious risks were therefore not raised.

5 The issues went to the cause of the hole, whether there was any duty of care owed by the club to the plaintiff and, if so, whether that duty had been breached, and the extent to which the plaintiff had been injured as a result of the fall having regard to her pre-existing medical history, evidence contained in medical reports, and a demonstrated work capacity both before and after the accident. The issue of contributory negligence, although raised in the defence, was not pressed at the hearing.

6 There was evidence from Mr Harden, who at 12 September 2002 worked at the bistro of the club, that in September 2002 prior to Ms Mansfield's fall he had witnessed a tourist bus which had delivered patrons to the club become bogged to its rear axles in the sandy soil prevalent in the area of the open space adjacent to the bitumenised car park. The car park adjoined one of the boundaries of the club premises. An attempt was made to pull out the bus by another tourist bus. This failed and subsequently a four wheel drive motor vehicle achieved this objective. Mr Harden said he had witnessed the incident from a window within the club building. He said his viewing point was about 100 metres from the site of the bus incident.

7 The defendant tendered a record of complaint made to Port Stephens Council by Ms Mansfield on 17 September 2002 which attributed the hole to the removal of a tree stump. It was argued on the basis of this material that the removal of the tree stump had in fact been the cause of the hole. The Council's record, however, went on to note after inspection that the hole had been caused by a vehicle. This record was consistent with the evidence of Mr Harden that he had noticed tyre marks in the hole when walking to and from the club. I find, therefore, that the bogged bus was the cause of the hole.

8 The second issue went to the question of the duty of care. The statement of claim alleged that the club owed a duty of care as occupier of the land on which the hole was situated.

9 The club did not own the land, nor was there evidence of any lease or licence giving the club rights of occupation or any power of control over the area of open space on which Ms Mansfield fell. The claim was based on evidence that club patrons used the bitumen section of the car park and that at times their motor vehicles and the tourist buses in which patrons arrived at the club were parked on the area of open space immediately adjacent to the bitumen.

10 There was no barrier between the bitumen covered car park and the open space.

11 There was evidence of Mr Harden that the club had barricades which it kept in the greenkeeper's shed. He said these barricades had been used at times to mark off holes that had been refilled in the bitumen area of the car park.

12 There were some difficulties with this argument for Ms Mansfield. Firstly, there was the evidence of Mr Harden that the hole was situated about 100 metres from the club building. The car park was available to the public generally. The club had no exclusive rights to its use. There was evidence that it was also used by members of a tennis club whose premises adjoined the car park, and by persons attending the nearby cemetery. There was no direct evidence that a person in a responsible position in the club was aware of the presence of the hole. The bistro in which Mr Harden worked was operated under lease from the club and Mr Harden was employed by the lessee of the bistro, not the club itself. There was no evidence that any direct employee witnessed the incident involving the tourist bus.

13 In this respect, Ms Mansfield relied upon a number of authorities which were not directly on point. She relied upon Brady v Girvan Brothers Pty Limited (1986) 7 NSWLR 241 as support for the proposition that an inference should be drawn that the club knew or should have known of the existence of the hole and should have taken reasonable precautions to prevent injury to Ms Mansfield. This case, however, involved a defendant who was in fact the occupier of the property in question and who made it available to the public for its own commercial purposes.

14 In Bennett v Manly Council and Sydney Water Corporation (2006) 146 LGERA 60 Hislop J found that both the local council, which was the occupier of Manly Beach, and Sydney Water Corporation, which owned the stormwater pipes upon which the plaintiff was injured and had responsibility for their maintenance, were liable for failing to mark the positions of the pipes. He did so on the basis of the authority of Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 459 to the effect that generally a statutory authority is under no common law duty of care to exercise a power when there is no statutory obligation to do so but that an exception to the general rule arises where the statutory authority's conduct puts it in a position where a duty of care to exercise the power arises.

15 In this case the club was neither the occupier of the land upon which the hazard existed nor was it the owner of any part of any structure which represented the hazard.

16 In Turnbull v Alm and Anor [2004] NSWCA 173 Dubbo City Council was held partially liable for the defective condition of a footpath, although it was not the occupier of that footpath, because it had undertaken repairs to the footpath negligently.

17 The most significant authority referred to by the plaintiff was that of Bulmer v Ryde Municipal Council (1976) 34 LGRA 300. My attention was drawn to an extract said to have been from the judgment of Mahoney J. Having read the extract, I was concerned to read the whole of the decision of the Court of Appeal because it appeared to be inconsistent. Reading the whole of the decision, the inconsistency was explained because part of the extract at page 309 was taken from the dissenting judgment of Glass J, whilst the balance of the extract came from the judgment of Mahoney J.

18 Hutley J in that case found Ryde Municipal Council to be an occupier of a bridge that provided access to a public reserve, notwithstanding that as a matter of law the council had no control over the condition of the bridge, had done no work on it and had taken no positive step to indicate that it took responsibility for the bridge. The facts which resulted in that conclusion were: (1) The bridge provided the only means of access to the public reserve, (2) The bridge had to be crossed by any person going to the public reserve, and (3) Although the evidence on this aspect was regarded as thin, the council technically was a trespasser against the owner of the bridge, namely the Crown, but as against a third party it was the occupier. Glass J, who was in the minority, added the further features: (4) The council had authorised development of the public reserve as a flora and fauna reserve by the Ryde Hunters Hill Flora and Fauna Preservation Society. Work that had been permitted included the construction of a gate and fencing on the track leading to the bridge and the placing of a sign setting out restrictions on the use of the reserve at the same point. The track passed over land not owned by council. In this way council had invited members of the public to enter on foot and to walk along the short track to the bridge giving access to the reserve. (5) Control need not be exclusive. The council had imposed restrictions on the use of the track and reserve indicating that it had a sufficient degree of control. The issue, according to Glass J, was whether the council had taken reasonable precautions and whether it was therefore in breach of its duty. Mahoney J at 318-319 accepted that circumstances might exist where the owner of land owed a duty of care to visitors in relation to the means of access to that land, even though it was outside its boundaries. The circumstances in which a duty of care might arise, he said, were: (1) where persons were directed by signs to take a particular route, so that it could be said there was an inducement to take a particular path, or (2) where the access path had been adopted so as to impose liability for repair.

19 Whilst Bulmer indicated that the owner or occupier of a commercial facility might owe a duty in respect of the means of access to that facility, the facts of that case extended to the direct means of access to the public reserve in question.

20 In this case, the club is being asked to take responsibility for what was effectively an area of unconstructed public footpath. The basis for the alleged duty of care was that it was used from time to time by club patrons to gain pedestrian access or for the parking of cars and tourist buses.

21 This area, however, was also available to the public generally, pedestrians and drivers alike, whether or not they were patronising the club.

22 The question then becomes whether the club as a responsible commercial organisation was negligent in failing to report the existence of the hole to Port Stephens Council or to barricade it or by some other means warn members of the public amongst its patrons of the hazard presented by the hole.

23 I am very doubtful of this proposition. Whilst that might have been a worthy thing to do, I do not think that the neighbour principle or those established in Wyong Shire Council v Shirt (1980) 146 CLR 40 extend to impose such a duty on the club.

24 I have decided that the plaintiff's case against the club fails for the following reasons. (1) This was not land over which the club had control or power and the fact that some of the club's patrons parked on the open space area in my view was insufficient to make it reasonable to impose upon the club a duty to undertake regular inspection to check for potential hazards. I am therefore unable to infer that the hole was a danger of which the club, acting reasonably, ought to have been aware. (2) The hole was on land which was available for use by members of the public generally. (3) There was insufficient evidence upon which to infer that the club management knew or ought to have known of the existence of the hole into which the plaintiff fell. The evidence of Mr Harden was that the building was some distance from the site of the hole. There was no evidence to suggest that any person in a position of responsibility in the club witnessed the incident or was informed of the incident.

25 In the circumstances, there will be a verdict for the defendant.

26 In the event that the matter goes further, I have proceeded to assess the quantum of the plaintiff's case.

27 At the time of the accident the plaintiff was forty one years old. She is now forty six.

28 The plaintiff gave evidence of considerable pain and discomfort from the time of the fall affecting her neck and back. She said that at the time of the fall she felt a sharp pain in her neck which was jarred by the fall. She was assisted to her friend's home, from which she drove home slowly. She was in pain and bedridden for some days afterwards. She complained of heaviness in her head with pain extending into her arms. She said she was assisted by her daughter, the oldest of her three children, and she did not go out very much.

29 On 27 September 2002 she consulted her general practitioner, Dr Lannigan, who prescribed painkilling medication and ordered x-rays and physiotherapy. The plaintiff said the physiotherapy had not helped her.

30 Her condition, in particular that of her head, neck and arm, she said, deteriorated so that by Christmas she had continuous pain in her arms and a 70 per cent loss of the use of the right arm. She is right hand dominant. She said she also had back pain extending into her legs.

31 On 8 February 2003 the plaintiff was taken to John Hunter Hospital by ambulance because of leg and arm pain and difficulty breathing.

32 On 13 February 2003 she was seen by Dr Kuru, a surgeon, when her condition became worse. She was again admitted to the John Hunter Hospital for administration of pain relief. This did not assist her and, thus, on 21 February 2003 Dr Kuru undertook surgery for a fusion at the C5/6 levels of the plaintiff's spine. On 27 February 2003 she was discharged in a neck brace for eight weeks and in considerable discomfort.

33 After surgery, the plaintiff said she had pain in her right arm but that over a period of weeks the pain in her neck and shoulders decreased sufficiently to allow her to use her right arm. She said she remained with pain in her back and legs and in her neck, the range of movement of which was restricted and she suffered from headaches.

34 Her current complaints are of neck pain and an inability to put weight on her arms so that she cannot take the dog for a walk or increase activity levels. She said her back is stiff and she has back and leg pain with increased activity.

35 The consequences of these complaints, she said, are that she is no longer able to participate in the sporting activities of tennis, horse riding, walking up to 60 kilometres per week, and beach walking. This, she said, she has not done since the time of the accident.

36 For pain relief she uses Panadeine Forte and other over the counter medications, and a TENS machine. The plaintiff states that she can work part time only.

37 The defendant argued that the plaintiff's complaints of ongoing pain were inconsistent with or contrary to the medical evidence. X-rays and CT scans taken after the accident indicated that there were no abnormalities other than degenerative changes. However, Dr Kuru reported on the findings of an MRI scan on 25 February 2003 which he said showed a significant disc protrusion at C5/6 consistent with shoulder and right arm pain. There were no abnormalities shown on an MRI of the plaintiff's lumbar spine.

38 The defendant pointed to a clinical note of Dr Lannigan of 25 November 2002 which stated that the plaintiff's neck was slightly improving with physiotherapy and that sciatica was her main problem following a further fall downstairs a few days before. He noted at the time that she was working as a cook. The plaintiff denied that these entries were correct. I have noted that at the same consultation Dr Lannigan also recorded that in the absence of significant improvement for ten weeks he had referred the plaintiff to Dr Kuru.

39 The physiotherapist reported to the general practitioner on 23 October 2002 that the plaintiff's neck symptoms had greatly improved. The plaintiff denied that this report was accurate.

40 Dr Kuru in February, May and August 2003 reported improvement in the plaintiff's condition to the point where her shoulder and arm pain had been relieved, although she had some ache in the neck and some continuing low back pain. On 12 August he said the range of movement in her neck was near to normal, although the plaintiff was reluctant to demonstrate it. The plaintiff denied that these reports were accurate.

41 On 10 February 2004 Dr Kuru reported complaints of pain in the neck and lower back with leg symptoms which he said were consistent with further degenerative disc disease. On 16 July 2003 Dr Kuru wrote to the plaintiff's solicitor that her pain had been substantially reduced, that she still had problems in her low back but they had substantially improved, and her neck was still stiff. A report to the plaintiff's solicitors on 9 October 2006 referred to complaints of continued neck and back problems.

42 Dr Smith reported to the defendant's solicitor on 13 December 2005 that the bulge at the C5/6 level appeared to be nontraumatic and that the disc at this level had been degenerate. He said that it would not take much of an injury to make it bulge. He considered that the surgery had been successful. He worked on the premise that the plaintiff's symptoms had substantially settled before she had been referred to Dr Kuru. In this respect, he had access to the notes of a polyclinic which are not in evidence.

43 This basis for Dr Smith's opinion was contradicted by Dr Lannigan's note of 25 November 2002 of no significant improvement for ten weeks, prompting the referral to Dr Kuru at that time. On 30 January 2007 Dr Smith referred to this note, but read it as indicating that she was referred to Dr Kuru in connection with back pain. I do not read the note in that way and, in any event, it is inconsistent with Dr Lannigan's report of 6 July 2006 and with the letter of referral to Dr Kuru itself.

45 I find that the plaintiff was fit and well prior to the incident. There was a reference to heaviness in the head for which she was investigated in May 2002 by way of a CT scan of her head and her cervical spine. At that time it was reported that there was no indication of degeneration. A slight degenerative change at C5/6 was noted by a scan taken on 24 September 2002. The plaintiff's condition did not resolve, prompting referral to Dr Kuru in November 2002.

46 I find that the plaintiff suffered a disc protrusion at the C5/6 level, causing shoulder and right arm pain as a result of her fall into the hole on 12 September 2002. This finding is based upon the report of Dr Kuru of 25 February 2003 and the report of Dr Smith of 13 December 2005 that it would not take much of an injury to cause the bulge at that level.

47 I find that the arm and shoulder symptoms were considerably relieved by surgery in February 2003.

48 I find that the plaintiff has suffered from continuous discomfort in the cervical spine from the time of the injury to the present date.

49 I find that the complaints of back pain are unsupported by medical evidence. Investigations have shown nothing radiologically. There is evidence of some overstatement in the plaintiff's condition and there were inconsistencies in presentation both to Dr Kuru and Dr Smith. There was inconsistency between the plaintiff's evidence of continuous unremitting back pain and Dr Lannigan's report that on 28 June 2006 she stated that her back symptoms could be absent for periods of one to two months.

50 I find that there are no ongoing symptoms of significance as a result of any back injury caused by this incident. My assessment is therefore made on the basis of injury to her neck only.

51 As far as income loss is concerned, the evidence was that the plaintiff had a good work history consistent with her status as a single parent caring for three children. At the time of the fall she was working part time as a cook in another club. She said she was intending to resign to take up work as a cook in a café known as the Gourmet Groper at Nelson Bay. She in fact resigned shortly after the fall and gave the impression through her evidence that she did not work again until she completed a real estate course at TAFE in 2004.

52 After completing that course, she worked fulltime for two months in a seafood restaurant as a manager which she relinquished because she said she was unable to lift weights of items such as drums of oil.

53 In December 2005 she obtained employment with Quest, a real estate agency. She worked five days a week. She said the driving and computer work involved in this employment aggravated the condition of her neck. In addition, she was paid solely on a commission basis. She resigned from this employment in June 2006.

54 In July 2006 she commenced work with Richardson & Wrench where she was offered a base salary and commission. She said the work was similar to that she had undertaken at Quest but the workload had been heavier than she had anticipated. She had difficulties with various aspects of the work, including hammering in stakes for signs and lifting the signs. She said she left this employment because the business was not flourishing and staff had been reduced, which placed an extra burden on her. She denied that she left because she had failed to secure listings. She agreed that she had earned no commissions in the course of her employment.

55 There was evidence contrary to the plaintiff's that she returned to work shortly after the accident. This appeared in Dr Lannigan's clinical note of 25 November 2002 where he stated that she had been working at the Gourmet Groper as a cook. The plaintiff denied that she had returned to fulltime employment at the Gourmet Groper after her fall. She said she worked one day at weekends to help out the proprietor. This obliged her to open the café, manage staff, and cook on a limited basis only.

57 The plaintiff is currently working fourteen hours a week at a local resort as a receptionist. She said she could do more hours but she could not work fulltime. It was argued by the defendant that the plaintiff had demonstrated a capacity to work full time after the fall but that she had chosen to return to part time employment to attend to her family commitments.

58 In assessing the plaintiff's claim, I have proceeded on the basis of the findings of injury to the neck with surgery relieving symptoms in the arms but not resolving neck pain, so that there is consequent disruption to the plaintiff's enjoyment of life. I have assessed her non-economic loss at 27 per cent of the worst case in the sum of $42,500.

59 For past income loss I have noted that the evidence indicated that she worked for more hours than claimed at the Gourmet Groper and I have therefore allowed 150 weeks at $150 per week in the sum of $22,500.

60 I have allowed past superannuation at 8.5 per cent in the sum of $1,912.50.

61 For the future, I have noted that the neck injury resulted in a fusion at the C5/6 level with the prospect of further deterioration. I assess, therefore, that this injury has affected the plaintiff's capacity to work fulltime. However, the plaintiff herself conceded that she does have the capacity to work more than the current fourteen hours a week. I have therefore preferred a 35 per cent loss of income earning capacity to that of more than 50 per cent claimed in the sum of $239 per week. I have allowed $131,275 for future income loss.

62 Future superannuation has been allowed at 9 per cent in the sum of $11,814.75.

63 Past out-of-pocket expenses are agreed in the sum of $1,684.60. For the future I have allowed a modest buffer of $5,000.

65 Having regard to my findings on the issue of liability, however, there will be a verdict for the defendant.

66 I will stand the matter over to Tuesday 6 March at 9.30 for argument on the issue of costs and to hear any application for a stay.

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