Morgan v Owners of Strata Plan 13937 & anor

Morgan v Owners of Strata Plan 13937 & anor - [2006] NSWSC 1019 - NSWSC 2006 case summary — Zoe

[13]

· What are Mr Morgan's damages? How did the accident occur? 3 Mr Morgan had been visiting friends at Bexley. He left them at 8.30 pm and drove home, arriving at the front of the block of flats in which he lived at 8.45pm. He parked in the street, and proceeded to his unit. It was raining very heavily. He walked up the stairs on to the landing at the front door, took his keys from his pocket, opened the front (security) door to the block, walked through and let it close behind him; it was a self-closing door. He walked the short distance along the foyer to the door to his unit, which was located on the ground floor, opened it, walked in and closed it behind him. Then he telephoned his girlfriend, and told her that he would not be coming over to see her, because it was raining too heavily. He was on the phone to her for ten to fifteen minutes. 4 Mr Morgan then realised that he had not locked his car, because he had originally entertained intentions of visiting his girlfriend. He left his unit, pulling the door closed behind him, and entered the foyer. He was wearing a shirt, jeans and Adidas Asic Gel joggers, and had neither raincoat nor umbrella. He looked towards the front security door, which he noticed was open; he saw the outside light shining in, and observed that the rain was coming down quite heavily. He says he walked towards the security door. He was puzzled why it was open; he did not see anything holding it open, and presumes that he did not see the carpet off-cut that he says he later realised was doing so, because the light was coming in from outside. 5 Mr Morgan says that when he was halfway through the security door, his left toe caught something, and he stumbled forward quickly. He tried to bring his left foot forward "to take away the stumble", but it kept slipping, eventually coming to ground 500 to 700cm outside the security door, on the wet tiles of the landing. He tried to bring his right foot forward, to regain his balance, but his left foot kept slipping. Then his right foot made contact with the wet tiles as well, and he began to slide forward, and to fall backwards. He tried to twist his right arm around to the left, to grab the handle rail, but being unable to do so, he kept sliding to and over the edge of the steps, and speared down the stairs, feet first. His feet hit the footpath, to the right-hand side of the steps as one looks down.

[82]

32 The duty of the Owners to Mr Morgan was that general duty of care owed by occupiers to entrants, to take such care as is reasonable in the circumstances for their safety, and to protect them from risks of injury which can be foreseen and avoided [Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; Hackshaw v Shaw (1984) 155 CLR 614, 663]. However, the content of that duty varies according the circumstances of the entrant's presence on the premises, the obviousness of the risk, the probability of the risk occurring, the magnitude of the consequences, and the cost or inconvenience of taking steps to remove, avoid or avert it [Wyong Shire Council v Shirt (1980) 146 CLR 40]. An occupier of premises is required to take only such care as is reasonable in the circumstances, not to make the premises as safe as reasonable care and skill on the part of anyone can make them [Jones v Bartlett (2000) 205 CLR 166, 177, 184-5 (Gleeson CJ); Wilkinson v Law Courts Limited [2001] NSWCA 196, [21] (Heydon JA)]. One must not slide from determination that a risk of injury exists to a consideration of preventability: a defendant will be liable only if its failure to eliminate the risk shows a want of reasonable care for the safety of the entrant [Tame v State of New South Wales (2002) 211 CLR 317, [99] (McHugh J); Cafest v Tombleson [2003] NSWCA 210 (Meagher JA)]. The content of a duty of care in a particular case cannot therefore adequately or usefully be described simply as one to take reasonable care to avoid a foreseeable risk of injury to a person in the situation of the plaintiff, as that leaves open the content of the term 'reasonable' and thus the content of the duty, without which the issue of breach cannot be determined [Jones v Bartlett (2000) 205 CLR 166, 213 [166] - [167] (Gummow and Hayne JJ)]. So it is essential to identify with precision, by reference to considerations of the nature of those indicated in Wyong Shire Council v Shirt, what was a reasonable response to the risk of harm that existed [Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, 611-2 [192] (Gummow and Hayne JJ)], a judgment which is to be made having regard the situation before, not after, the accident [Vairy v Wyong Shire Council [2005] HCA 62, [49], [126]]. It is necessary to consider these questions from the perspective of the defendant, with its state of knowledge, and ask whether the defendant acted as a reasonably prudent person ought to have acted [Woods v Multi-Sport Holdings Ltd (2002) 208 CLR 460].

[85]

34 Preconditions to a finding of a breach of duty in these circumstances are now prescribed by the Civil Liability Act 2002 (NSW), as follows:- 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 35 The circumstances include that the occupier was the body corporate of a home unit building, and the entrant was the inhabitant of one of the units. Although a body corporate has the capacity to inspect the common property, what positive steps it can take is limited by the funds made available to it by the proprietors: it does not have the same resources as a public authority or a commercial entity [Ridis v Owners SP10308 [2005] NSWCA 246, [122]-[123]]. It is much closer to an individual house owner, though even that analogy is imperfect, because it does not have control of the whole property, and it cannot bar access to the common property [Ridis, 121]. Members of the public would not enter upon the common property of a home unit building with the same expectation as to the standard of its maintenance and repair as they might entertain when entering premises pursuant to contract, or on public lands, let alone on commercial premises such as a shopping centre [Ridis, [123]]. Nonetheless, a body corporate does have a substantial degree of control of common areas, and the circumstance that in a home unit block there is a higher density of population, and thus of pedestrian traffic, than in an individual home, may require the taking of precautions, particularly in heavily used common areas, which would not be required of an ordinary homeowner. 36 The first, second, fourth and fifth particulars set out above are all concerned with precautions against the use of the carpet off-cuts to hold open the door. In this case, the carpet off-cuts had been present for some years before the accident, after the carpet had been replaced. Indeed, they remained present for years afterwards. They were used as an internal doormat and, on occasion - after a latch which had been used to hold open the security door had been removed (for security reasons) - they had occasionally been used, presumably by occupants, to hold open the door, by being wedged underneath it. Mr Morgan knew that they were used for this purpose and, before the accident, had drawn this to the attention of officers of the body corporate - not because of any perceived trip risk, but because it was perceived to compromise security.

[91]

41 While one purpose of a doormat is to provide a means persons entering to wipe their shoes, another purpose of a slip-resistant doormat is to prevent persons exiting from slipping as they step down from the doorstep onto the different, lower surface. The entrance in question here was the front entrance to the building. While there was no significant change of level between inside and outside, the exterior surface - the landing - was of tiles. It was not suggested that the tiles themselves were excessively slippery; although at one stage such a case had been contemplated, testing of the tiles demonstrated that their friction coefficient was within acceptable limits. However, even if not unduly slippery, tiles make a surface on which it is easy to slip, especially when wet. This landing was exposed to the elements, and when it rained, water entered under the canopy and the tiles were wet right up to the front door. Although both Mr Baxter and Mr Moodley, former officers of the body corporate, said that they had never noticed any problem with the tiles on the landing when wet, it is notorious that the presence of water on tiles increases the risk of slipping; the Standard itself explains that "Water is arguably the substance which most often makes floors slippery". The landing was located at the top of a flight of five steps, so that a slip on the landing could have potentially serious consequences - as it did in Mr Morgan's case. The provision of a weatherproof external doormat, as the Standard recommended, would have very considerably reduced the risk of a person exiting the premises slipping. Mr Moodley's response, that an external doormat would have simply got wet, overlooks its protective slip-resistant function, and that weatherproof mats were recommended - and, on the evidence, available since at least 1995, at a price of about $25. 42 In my view it was foreseeable that a person exiting the building through the front door in wet conditions might slip on the wet tiles. As was said by Gibbs CJ in Turner v State of South Australia (1982) 42 ALR 669, (at 670): On the one hand, the degree of risk of injury occurring was not shown to be great, and the way of avoiding injury should have been obvious enough to an employee. On the other hand the remedial action suggested involved little or no difficulty or expense. Where it is possible to guard against a foreseeable risk which, although perhaps not great, nevertheless cannot be called remote or fanciful, by adopting a means which involves little difficulty or expense, the failure to adopt such means will in general be negligent.

[99]

53 Dr Nigro referred him to Dr Pattinson, who saw him on 10 April 2000. Mr Morgan identified the area of approximately L2 as the site of his pain and was slightly tender over the interspinous ligament over L2/3. Dr Pattinson thought he might have a compression fracture of the lumbar spine and arranged for a bone scan, which was performed by Dr Dickinson on 11 April 2000, demonstrating a compression fracture at T12 and L1, and revealing markedly abnormally increased tracer uptake at T12 involving the superior intervertebral plate extending from the mid-line to the right, with mild to moderately increased tracer uptake in L1 on the right, again involving the superior intervertebral plate. Dr Dickinson concluded from the bone scan that the appearances were suggestive of recent partial compression fractures of the anterior vertebral bodies of T12 and L1 on the right. Follow up x-rays on 15 May 2000 confirmed compression fractures at that level, with less than 10% loss of height of the vertebral bodies involved. 54 Mr Morgan's back pain worsened, and on 19 June 2000 he was prescribed Mersyndol Forte, and later Celebrex 100mg. Continued severe back pain required the trial of Tramal on 3 January 2001. He was re-examined by Dr Pattinson on 5 October 2000 at the request of Dr Nigro, when he complained of on-going back pain interfering with his work as a carpenter. He localised the thoracolumbar junction as the site of his pain. A follow up bone scan and x-rays showed that the compression fractures had healed. Dr Pattinson thought that his pain was likely to be coming from interspinous and supraspinous ligament injuries, and perhaps from facet joint degenerative changes. 55 For the first 12 months following the accident, Mr Morgan did not work at all. Problems began develop in the relationship with his girlfriend following the accident, largely because he was not working, and the relationship came to an end. He became frustrated and depressed, and occasionally engaged in binge drinking. He had sold his unit before the accident. Living in it as a tenant, and was preparing to buy a house. Not working was chewing into his savings, and he embarked on some share trading in the hope of making some money while not working. This was disastrous, and he lost money. He became increasingly depressed, and one night, about a year after the accident, could see little point in living; after drinking a full bottle of bourbon he tried to lacerate his wrist with a butcher's knife.

[100]

56 Dr Pattinson re-examined him on 9 September 2002. He was complaining of on-going back pain, and had only been able to work as a casual since the time of injury. He had been having physiotherapy. Mr Morgan said that he was unable to jump off small heights, and that lifting and bending caused back pain. He was taking Panadeine Forte and Viox, and having difficulty getting full time work. On examination, spinal alignment was normal; there was a good range of motion and no tenderness. X-rays showed no deterioration in position. Dr Pattinson thought that the main problem was pain control, and that surgery was not indicated. He referred him to the pain clinic at St George hospital on 9 September 2002. 57 Following that referral, on 11 September 2002, Dr Vasic, pain management specialist, reported that Mr Morgan described pain in his lower thoracic spine on both sides, though the left side was worse than the right. While seated he rated it at 3½ out of 10, and at its worst 7 out of 10. There were no neuropathic features. Mr Morgan described difficulties in going to sleep, that he often woke in pain, and that household activities such as washing up and vacuuming exacerbated the pain, so that he was unable to do housework effectively. He was taking Panadeine Forte, two per day. Tramadol was not proving of benefit, nor Viox. He was having physiotherapy weekly. It was concluded that he was suffering chronic pain secondary to vertebral fractures occurring two years earlier, and that the pain should eventually improve. He had continued working as a carpenter, but casually, and using medication to get through his work. 58 On 3 February 2003, Dr Pattinson thought that the prognosis was guarded as it was nearly three years since the initial injury and the on-going back pain continued, interfering with his ability to work as carpenter. He thought that Mr Morgan was unfit to work full time as a carpenter, due to on-going pain related to the compression fractures of T12 and L1. He thought Mr Morgan had a 20% permanent loss of function of the lumbar spine. 59 On 18 February 2003 Dr Nigro reported that Mr Morgan remained unfit for pre-injury (or any) duties, and that the prognosis was poor, as recovery had not occurred since the fall nearly three years earlier. 60 Kevin Hewson, physiotherapist, reported that Mr Morgan had chronic thoracolumbar spine pain, and that he had seen how heavy work and bending could re-aggravate his condition. He thought Mr Morgan may continue to have pain and restricted activities into the foreseeable future, and doubted that there would be complete resolution in the next few years. He recommended that he avoid any work involving lifting or repetitive bending, as that may aggravate his condition. 61 The radiological evidence confirms a spinal injury. While a lumbar spine x-ray on 6 March 2000 showed minimal thoracolumbar scoliosis, with no definite fracture detected, a lumbar spine CT scan on 20 March 2000 showed mild symmetrical posterior disc bulge at L4/5 which slightly indented the thecal sac with mild foraminal narrowing at each side, and also a minimal posterior disc bulge at L5/S1 with some minor osteoarthritic changes L3/4, L4/5, L5/S1; and a thoracolumbar spine x-ray on 15 May 2000 showed some anterior wedging in the low thoracic and upper lumbar spine and evidence of trauma to the superior end plate of T12/L1. 62 Dr Mahony, orthopaedic surgeon, examined Mr Morgan on 24 June 2003. He noted that Mr Morgan had been treated with a Taylor's brace and was off work about 12 months. He recorded that he had subsequently tried to work on several occasions and in the last three years had worked about six months on separate occasions, and that he had required and was still attending for physiotherapy, and complained of persisting symptoms. His present complaints included pain in the back (indicating the lumbar area) associated with a numb feeling in the left thigh; a "tired" feeling in the left leg; occasional soreness of the neck; pain behind the left elbow; and cessation of scuba diving, tennis and golf and motor cycle riding. On examination, flexion of the neck was within normal limits, but there was guarding. Shoulder movements were within normal limits. Spinal movements were possible in flexion, with fingertips reaching to the mid tibial level. Extension and lateral flexion appeared restricted in extremes but rotation was within normal limits. Straight leg raising was possible to about 60 degrees on both sides. Dr Mahony concluded that Mr Morgan had developed symptoms referrable to a cervical strain with nerve root irritation radiating to the posterior aspects of the shoulders. He had also sustained compression fractures of T12 and less so L1, with evidence of discogenic lesions at L4/5 and lumbosacral levels. He considered that the numbness of the outer aspect of the left thigh was associated with tension in the low discs. He recommended that future activities not involve significant bending or lifting, and that it would not be wise to return to carpentry. After allowing for pre-existing changes, he thought that Mr Morgan had a 5% permanent impairment of the neck, 2.5% loss of efficient use of the right upper limb at and above the elbow, 12.5% permanent loss of efficient use of the left upper limb at and above the elbow, 10% permanent impairment of the left upper limb as a result of the left olecranon bursitis, 30% permanent impairment of the back, and 5% permanent loss of efficient use of the left lower limb at and above the knee. In oral evidence, Dr Mahony explained that headaches, of which Mr Morgan complained after the accident but which were not present beforehand, were frequently referred from the neck. He confirmed that there was a likelihood of accelerated arthritic change as a consequence of his injuries. He thought improvement was unlikely, although following correct medical advice might lessen the symptoms. The film evidence of Mr Morgan at work on 11 and 14 February 2005, when he worked two or three hours each morning, did not affect his opinion that it would be unwise for him to return to carpentry duties. 63 Dr Bleasel, neurosurgeon, saw Mr Morgan on 3 August 2005. Mr Morgan complained of intermittent depression, neck pain mainly on the left side, frontal headaches sometimes occipital, low thoracic pain, low back pain (he could not bend) and his legs feeling weak with severe cramps in the calves, particularly the left. On examination there was neck pain with movement, particularly on the left side, and a restriction of rotation to the right. There was obvious muscle spasm on the left on examination of the lumbar spine. Straight leg raising was achieved to 60 degrees causing back pain, not leg pain. Dr Bleasel concluded that he had vertebral fractures, lower thoracic and upper lumbar, and continuing pain "which is common with this type of fracture". He concluded that he was not fit to return to his original work, and though he did small jobs for friends he could not stand for long or work in a bent position or do any heavy lifting. He thought the prognosis for the future was not good. Dr Bleasel was not required for cross-examination 64 Medical opinion tendered in the Owners' case is that he has been left with a small permanent impairment (5% of thoracolumbar spine function), and a risk of developing premature degenerative disc disease, particularly at T12/L1, but is fit for all forms of employment including his previous employment as a handyman/carpenter full time without any specific restrictions.

[101]

65 Video film obtained by the Owners showed Mr Morgan working as a carpenter for about three hours on Friday 11 February, and a couple of hours on Monday 14 February 2005. On 11 February, he kneeled using a hammer, used pliers held in his left and right hands, used a chisel in his left hand, bent at the hips to pick up a piece of scrap metal, squatted, carried a sheet of plasterboard and placed it against the garage, used a grinder to cut a plasterboard sheet, used a drill, carried a large masonry drill and case and bent at the hips to place them on the ground, used a blower vac, used a hacksaw to cut a piece of pipe, bent at the hips to connect power cords, used a masonry drill, and attached plasterboard sheets to the external brick wall of the garage, inserting the garage door mechanism and lock. On 14 February, he was seen standing on a ladder, extending both arms to apply a sealer with paint scrappers held in both hands, climbing up and down two ladders, bending at the hips to apply the sealer to the plasterboard, holding a bucket in his left hand, turning his neck and head, using a hammer in his left hand, using a sealing gun, carrying a sheet of plasterboard, using a measuring tape, using a stringline, placing adhesive glue onto exterior plasterboard sheets, attaching another plasterboard sheet using a hammer and nails, removing nails with a hammer, using a sponge in the left and right hands to wash off excess sealer, attaching a second sheet of plasterboard to the exterior and banging it down using both hands before nailing it, and attaching a third sheet of plasterboard. 66 Mr Morgan described that for a couple of years after the accident he had constant severe pain, about eight out of ten on the pain scale. Since then, it has reduced to three to four, if he does nothing and rests his back; but if he starts work, it ranges from five up to about six and a half or seven. He says that the pain never goes away. He has not returned to golf or tennis or scuba diving. No work he has done as a carpenter or handyman since the accident has been unaccompanied by pain. His mother observed that his attitude and manner had changed and that he was like a broken person. So far as work is concerned, in the first year after the accident he relates having "just done a few favours for friends, not many hours at all, trying to help them out and see if my back would hold up, which it was still in pain". That lead to his breakdown, when he found out he could not sustain it. Subsequently, he has tried to go back to carpentry. He says that he did "days" in 2001, "probably a little bit more" in 2002, and that in 2005 He had "gone back and tried to do a bit".

[102]

67 Mr Morgan accepts that he is much better now than he was a couple of years ago. He accepts that when examined by the Owners' doctors he has been able to perform all requested activities without difficulty, but observing that he was never asked to lift anything heavy or undertake strenuous activities. He was able to sit, dress and undress, stand, turn and walk without difficulty. But he did not accept that he had fully recovered, and had no disability of significance, and could bend and lift and perform heavy work without difficulty and at a fast pace. He says that he can do about 70% of the work of carpenter, but not the heavier aspects, and in particular not heavy continuous work such as lifting beams into place on roofs, formwork on a daily basis full time, and continual heavy manual lifting work. He can maintain a forward bending position probably for half an hour to an hour, and squat for about the same time, whereas in the past he could do so for the best part of a working day. Lifting heavy items brings great pain to his back. The longest consecutive period he has worked since the accident is one to two weeks of general carpentry. He estimates that he is 50% slower at such work than he was, and is in a great deal of pain after it. Of the work which was the subject of the video, he said: Q. The job you were doing for him there, it wasn't a light job, was it? A. No, but it put strain on my back and for the next month or so after that I didn't do anything hardly. I tried to do stuff, but I was in pain. … 68 He conceded that he was able to kneel down, bend forward, reach up and down, climb ladders, carry a fibro sheet and power tools. He pointed out that there were a couple of occasions when he went inside, when he had laid down and rested. He said the film showed him working much slower than he had used to work. He said that his back ached virtually all the Friday night following, and he pointed out that he was not depicted and had not done heavy lifting continually up the ladder and drilling sheets all day long and hammering. 69 Dr Zeman, a rehabilitation specialist who saw Mr Morgan for the Owners, thought that he may have occasional difficulty with extreme heavy manual work, but was medically fit for normal duties for most if not all of his previous work. However, Dr Zeman explained that this did not mean that he was employable: This does not mean that he is able to do this at a level sufficient to be employed, merely that he will not suffer injury, exacerbation or similar problems. His perception of pain is likely to limit his function to light to moderate work until this problem can be addressed.

[109]

78 Mr Morgan, having once had an episode of major depression and with a diagnosis of dysthymia, will require ongoing treatment, including by a psychologist and/or psychiatrist. It seems that he has developed a good therapeutic relationship with Mr Borenstein, which he wishes to continue if financially able to do so. Dr Canaris has suggested that he may well require psychological counselling, weekly to fortnightly, for well in excess of two years. At the current rate of $150 per one-hour consultation, this amounts to between $7,800 and $15,600 for two years. I would allow $10,000. Dr Canaris has proposed that he may also require psychiatric intervention, initially fortnightly and reducing to monthly after the first six months, also for at least two years. At the current rate of $255 per one-hour consultation, this totals $7,650. I would allow a further $4,000 to cover ongoing GP attendances for pain management, and pain relief medication, for which he is likely to have a lifelong requirement. Accordingly, for future treatment I would allow a total of $21,650. 79 In the financial year ending 30 June 1995, Mr Morgan had a taxable income of $37,169, which after tax of $8,659 and Medicare levy of $520 produced a net income of $27,990. In the 1996 financial year, his taxable income was $28,760, which after tax of $5,800 and Medicare levy of $431 left him with a net income of $22,529. In the financial year 1997, his taxable income was $18,367, which after tax of $2,593 and Medicare levy of $312 left a net income of $15,742. In the financial year ending 30 June 1998, his taxable income was $12,915, less tax $1,503 leaving net income of $11,412. In the financial year 1999 his taxable income was $35,106 less tax $7,958 and Medicare levy $526, leaving net income of $27,122. In the year to 30 June 2000, his taxable income was $14,801, less tax $1,880 and Medicare levy $222 leaving net income of $12,699. However, he did not work after the accident, and he had taken about three months off in the first half of the financial year, so annualised his income would probably have been double that, say $25,000. 80 At the date of the accident, Mr Morgan had been an employee for three weeks. He worked 38 hours in first and third weeks, for $674.50 net per week, and 16 hours in the second week, for $347.00 net. At $674.50 net per week he would have earned $35,074 per annum net of tax; or taking the average earnings of the three weeks of $556, he would earn $28,912. The evidence does not explain why he worked only two days in the second week, the only apparent explanation is that he was not a full-time employee in the ordinary sense, but was employed to work as required. Although Mr Hewitt has submitted that there was no certainty that that employment would continue, and that he might have to revert to business on his own account or as a contractor in the future, it is difficult to see why having been put onto wages after working for Absae for three years as a contractor, the new arrangement would not continue. In my judgment the best guide to Mr Morgan's pre-accident earning capacity is his earnings as an employee in the three weeks before the accident. I find that his pre-accident earning capacity was $29,000 per annum, or $558 per week.

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