Muir v. Hume [2003] QSC 191 (26 June 2003)

[1] In this action the plaintiff, a disability support pensioner born on 11 February 1958 who resides at Beerwah, claims damages for personal injuries she alleges she suffered as a result of a fall in a house at 30 Gamenya Drive, Chatswood Hills, Queensland owned by the defendant. The plaintiff was the tenant of the house under an agreement entered into with the defendant on 11 July 1990 under which the plaintiff was required to pay rent of $150 per week for the period of the tenancy which was from 14 July 1990 to 13 January 1991. The plaintiff claims that she tripped on a hole in some carpet in the house, fell, and suffered injury.

[2] It is not in dispute between the parties that clause 2(c) of the tenancy agreement provided:

2(c) Landlord's Repairs and Maintenance - to provide and maintain the premises in good tenantable repair and fit for human habitation as required by relevant Local Authority having jurisdiction and to comply with all lawful requirements of appropriate government authorities in regard to health and safety standards with respect to the premises, subject to the obligations of the Tenant herein.

[3] It is also common ground between the parties that it was an implied warranty of the agreement that the defendant would exercise all reasonable care and skill to ensure that the property would be in good and tenantable repair and that the defendant owed a duty of care to the plaintiff to ensure that the property was in good and tenantable repair and not to expose the plaintiff to a risk of injury.

[4] The plaintiff alleges that her injuries were caused by the failure of the defendant and/or her agents and/or servants to take reasonable care and/or in breach of clause 2(c) of the agreement and/or in breach of the implied warranty in the agreement and/or in breach of those terms implied in the agreement between the plaintiff and the defendant by s. 7 of the Residential Tenancies Act 1975 (now repealed). Four particulars of breaches of duty are given in paragraph 7 of the plaintiff's amended statement of claim:

1. Causing or permitting the carpet to remain in situ in an unsafe condition on the floor where it was likely to be, and was, tripped on by the plaintiff;

2. Failing promptly to replace or repair the carpet after requests were made by the plaintiff to the agents and/or servants of the defendant in August and September 1990 and after a further request was made by the plaintiff to the defendant personally in September or October 1990;

3. Failing to take any interim measures to ensure that the carpet could not be tripped over; and

4. Failing, in breach of clause 2(c) of the agreement and of the terms implied by s. 7 of the Residential Tenancies Act 1975, to provide the plaintiff with premises in good, tenantable repair and fit for human habitation.

[5] By operation of s. 7(a)(ii) and (iii) of the Residential Tenancies Act 1975 there were implied in the agreement between the parties these obligations of the defendant:

1. To provide and, during the tenancy, maintain the dwelling-house in good tenantable repair and in a condition fit for human habitation; and

2. To maintain during the tenancy fixtures, fittings, goods and chattels let with the dwelling-house in good tenantable repair.

[6] The defendant denies the alleged tripping and fall, and that she was guilty of the breaches of duty I have numbered 1 and 2. The defendant admits that the interim measures referred to in 3 were not taken, but denies that at all material times the condition of the carpet posed a danger to the plaintiff. The defendant denies that the plaintiff's injuries were caused by her breach of contract and/or negligence and/or that of her agents and/or servants as alleged by the plaintiff or at all. The defendant pleads further or alternatively that, if the plaintiff was injured in the circumstances alleged in the amended statement of claim, the plaintiff caused or substantially contributed to her suffering of the injury complained of in failing to keep any, or any proper, lookout, and in removing the mat which covered the damage to the section of carpet outside the bathroom entrance.

[7] The plaintiff's case rested on the allegation that on Sunday 2 December 1990 she tripped on a patch of worn and damaged carpet in the hallway at the entrance to the bathroom of the house and fell onto the bathroom floor injuring her back. The plaintiff herself gave evidence of the fall but no witness was called who claimed to have seen her fall. The plaintiff's niece, Natasha Akers, gave evidence, however, that on that Sunday she had been at the house, and, though not in the hallway at the time of the alleged fall, had heard the plaintiff call out to her. Ms Akers had then hurried to the hallway to find the plaintiff lying barefooted on the bathroom floor. Ms Akers helped the plaintiff up and to her bedroom where she slept for some hours. I accept the plaintiff's and Ms Akers's account of those events as truthful. In reaching that conclusion I place particular reliance on the evidence of Ms Akers, whose account of what she observed and did has remained consistent, although in some respects the plaintiff's has not, as I shall explain.

[8] Ms Akers made a statutory declaration on 18 February 1991 - when the events in question would no doubt have been fresh in her mind - in support of the plaintiff's claim to the refund of her rental bond in the Small Claims Tribunal, and in the statutory declaration Ms Akers gave 2 December 1990 as the day of the incident. An affidavit Ms Akers swore on 18 May 1995 in this action was to the same effect. I am not persuaded that there is any reason to doubt Ms Akers's honesty then or when she gave evidence at the trial before me. Ms Akers was able to fix the date because it was her cousin Megan Talty's birthday.

[9] The plaintiff has not always alleged that Sunday, 2 December 1990 was the day of her fall. In her application for legal aid dated 11 January 1991, in the plaint issued out of the District Court at Brisbane which began this action on 24 January 1992 and in her accounts to some of the doctors she has consulted she gave the date as that of the previous Sunday, 25 November 1990. I accept that the plaintiff was initially mistaken as to which Sunday was that of her fall. I should mention here too that the plaintiff's father Mr Kieran Talty was recorded by an employee of the defendant's letting agents Raine & Horne, as informing her on 17 December 1990 that the plaintiff had tripped on the carpet in the hallway on 12 December 1990 and hurt her back. That was probably an error by the employee, Ms Natasha Palmer now Mead, in recording the message because 12 December 1990 was the day after the plaintiff had been admitted to the Queen Elizabeth II Jubilee Hospital.

[10] There were other features of the evidence relied on on behalf of the defendant as reflecting on the plaintiff's credibility as a witness, some of which concerned peripheral matters of no great moment on my assessment, e.g. whether the plaintiff did or did not have a pet on the premises, and whether she had or had not visited Sydney while she was a tenant. There are two aspects of the evidence that could be regarded as of some importance, however, but which do not persuade me to reject the plaintiff's account. First, there were discrepancies between on the one hand the plaintiff's evidence that she inspected the house with Ms Palmer before she entered into the tenancy agreement and that she complained often to Ms Palmer about the condition of the carpets and on the other hand Ms Palmer's evidence that she could recall neither inspection nor complaints. Secondly, there was no record of the plaintiff's telling the following doctors of her fall: Dr Clare Harkins, locum of the Springwood Medical Service summoned to the house at 11.04 p.m. on the day of the fall; Dr Joanne Rafe, general practitioner at the Springwood Medical Centre, whom she consulted about her back on 10 and 11 December 1990; and

Dr Mark Robinson who saw her as Orthopaedics Registrar on the evening of

11 December 1990 after her admission to the Queen Elizabeth II hospital.

[11] Ms Palmer could not deny that the plaintiff had inspected the house with her before the plaintiff became a tenant or that the plaintiff had complained about the carpets to her, but, relying on her recollection of her practice at the time and her contemporary notes, said she did not recall the inspection or the complaints and was adamant that she had not been present at the inspection and that the complaints had not been made. I think it likely that the plaintiff's evidence is correct on those matters. The discrepancy between the plaintiff's evidence and Ms Palmer's about the pre-tenancy inspection is of some, but not great, significance, in any event. But as to the plaintiff's alleged complaints about the carpets, I accept that the plaintiff was concerned for the safety of her children, and since Ms Palmer and the plaintiff had frequent conversations concerning the plaintiff's arrears of rent before

2 December 1990, which though not great were persistent throughout the period of her occupation of the house, it is likely that the plaintiff used the opportunities those conversations afforded to complain about the carpet to Ms Palmer. Ms Palmer was well aware of the condition of the carpet, as a letter dated 19 September 1990 to the plaintiff shows, but was probably preoccupied with ensuring that the rent was paid on time and so did not record the plaintiff's complaints.

[12] The plaintiff's failure to mention her fall to Dr Harkins is easily explained because the plaintiff believed that she had suffered merely a muscular injury that would soon clear up, and at the time of Dr Harkins's visit was preoccupied with a panic attack and its apparent effect on her ability to breathe - she had woken with choking sensation. Had Drs Rafe or Robinson asked the plaintiff how she injured her back they would no doubt recorded her account, but it appears they did not. Why they did not is not clear, but I am not persuaded that it reflects badly on the plaintiff's credibility as a witness that there is no record of her telling them of her fall in their notes.

[13] The defendant inspected the house late in June 1990, after the previous tenant had vacated it on or about 13 June, and she cleaned it on 28 and 29 June, noting that there was an oval hole in the carpet outside the bathroom door. Through the hole the underlay could be seen. The hole was, the defendant and her husband said, about 15 cm across. It had frayed edges. The plaintiff's estimate was 30 cm to

46 cm. The defendant trimmed away some of the `bigger threads', as she described them, and then covered the hole with a mat 40 cm by 60 cm. I accept the plaintiff's estimate of the size of the hole as the more likely to be correct, and I also accept her evidence that `on either side of where it was worn there was looping and ravelled edges poking out from the sides', so that the mat did not completely cover the damaged area of the carpet. After the previous tenant had vacated the house

Ms Palmer had inspected it and noted a `Massive tear' in the carpet in front of the bathroom. The defendant made a claim on her insurer in connexion with the carpet, but the claim was refused. She inspected the house again on 27 September 1990 with her husband and the carpet outside the bathroom was in the same condition then as it had been when she saw it in June. The plaintiff on that occasion pointed out to the defendant that the use of a mat was unsafe and said she would be grateful if something could be done about the carpet quickly.

[14] The plaintiff disposed of the mat the defendant had provided because it `buckled' and was not sturdy enough. It also tended to move. She bought a replacement mat for the hole at the entrance of the bathroom which was the same size as that provided by the defendant, but on the day of her fall it was not in place as it was airing.

[15] Raine & Horne had notified the defendant of the state of the carpet on

14 June 1990 and, as the defendant admitted, there had been adequate time to repair it between her becoming aware of its state and the plaintiff's entering into occupation of the house. The cost of replacing it was not great: in January 1991 all of the carpet in the house - in lounge, dining room, hall, and three bedrooms - was replaced for $1,450.

[16] By failing to replace or repair the hall carpet at the entrance to the bathroom the defendant failed to provide and maintain the house at Chatswood Hills in good tenantable repair and fit for human habitation. The defendant thus exposed the plaintiff to a risk of injury. The defendant's breaches of duty resulted in the plaintiff's fall and the serious injury she suffered in that fall. The defendant had notice of the relevant defect in the premises in sufficient time to take remedial action which would have remedied it: cf., Austin v. Bonney [1999] 1 Qd. R. 114. The provision of a mat to try to cover the hole in the carpet was not an adequate interim measure to remove the risk. A mat was likely to constitute as much an obstacle that could be tripped on as the hole itself, and it was likely that it would be displaced or removed for one reason or another from time to time in any event - as happened on the day in question.

[17] So far as the plaintiff's claim is in contract, a plea of contributory negligence is not available to the defendant: Astley v. Austrust Ltd (1999) 197 C.L.R. 1. By operation of s. 21(4) of the Law Reform Act 1995, the law as explained in

Astley v. Austrust Ltd applies to this case, notwithstanding amendments made to that Act by the Law Reform (Contributory Negligence) Amendment Act 2001. So far as the plaintiff's claim is in tort I assess the plaintiff's contributory negligence at fifteen per cent. in failing to keep a proper lookout.

[18] The plaintiff has given accounts of the details of what happened as she fell which may or may not be accurate, but I am satisfied on the evidence that whatever are the true details - i.e., whether her body twisted as she fell or whether it did not, whether she fell directly onto her buttocks or whether she did not - it was her fall after tripping on the defective carpet that caused an acute spinal disc derangement. I accept as correct the opinion given on that subject by Dr Gregory Gillett, orthopaedic surgeon. After the fall the plaintiff felt pain and discomfort in her lower back and right buttock. She suffered increasing lumbosacral pain accompanied, after about three days, by right-sided sciatic pain. The persistence and aggravation of her pain led her to consult Dr Rafe who referred her to the Queen Elizabeth II hospital on 11 December 1990. There was radiological confirmation of an L4-5 disc protrusion with right-sided L5 nerve root compression. She had rest in bed and conservative treatment for approximately one week. Her condition did not improve, so on 19 December 1990 she underwent a right-sided

L-5 discectomy. She was discharged from the hospital on 24 December 1990. Soon after the plaintiff was admitted to hospital Mr Talty moved her belongings out of the Chatswood Hills house and she never returned to it. When she was seen at the hospital's outpatients department on 23 January 1991 she had no weakness in her right leg but did complain of some remaining altered sensation in the L5 distribution.

[19] Although the plaintiff's condition improved for a short time, she has continued to have recurrent episodes of acute low back pain with variable leg pain on a background of chronic low back pain. From time to time she has been admitted to various hospitals - including those at Caloundra and Nambour, and the

Andrea Ahern Private Hospital - for pain relief. On 22 January 1997 at the

Wesley Hospital, Associate Professor Bruce McPhee, spinal surgeon, performed a standard bilateral posterolateral fusion from L4 to the sacrum. The spine was immobilized with pedicle screws. A graft was harvested from the right iliac crest. The fusion was technically successful but has failed to eliminate the plaintiff's pain. The fusion reduced the incidence of leg pain, but lower back pain has persisted with acute recurrences, aggravated by her performing household chores, and prolonged sitting, bending, and lifting. She has resorted to strong analgesics to relieve the pain she feels, becoming dependent on a narcotic. The plaintiff's condition is not likely to improve, the disabilities she suffers are permanent. She is susceptible to further injury in that the lack of mobility in one part of her spine could adversely affect other levels. Aggravating her condition is a mental disorder I shall refer to later.

[20] In March 1990 the plaintiff had suffered lower back pain as a result of moving a wardrobe, but that pain resolved soon afterwards. She was seen on 16 March 1990 at the Springwood Medical Centre by Dr David Mountford who recorded her having tender lumbosacral ligaments. I do not accept her evidence that the pain she complained of was in the upper back only, but that incident of low back pain was in no way a cause of the acute disc derangement she suffered in her fall on

2 December 1990. There is nothing in the radiological evidence to show that before her fall the plaintiff had other than a normal back for one of her age. For her to have suffered a disc protrusion there must have been some degeneration of the disc, but that degeneration would have been minor. Dr Robinson's note of

11 December 1990 was of a six-month history of lower back recently exacerbated. But he had no independent recollection of the consultation, and conceded his note could `reflect an episode of back pain six months ago. It could represent multiple episodes of back pain over that six-month period or it could represent six continuous months back pain'. The first of those possible interpretations is the correct one in this case when other evidence of the plaintiff's condition after the wardrobe incident, which I accept, is taken into account.

[21] From late 1988 the plaintiff had suffered from an adjustment disorder with depressed mood or dysthymic disorder. She suffered intermittently from panic attacks. That disorder was caused largely by the upheaval accompanying the breakdown of the plaintiff's marriage to her first husband, Mr Andrew Muir. There were three children of that marriage, which took place in October 1980: Elise, born in December 1982; Sean, born in February 1985; and Jackson, born in

March 1988. After the failure of the marriage the children remained with the plaintiff. Had it not been for her back injury, her condition would probably have resolved after 1993 or 1994, although she would have had a tendency towards relapse from time to time. Any relapses would probably have been manageable and of short duration, especially with some professional assistance. In early 1992 the plaintiff and Mr Peter Howard, whom she married in March 1994, began cohabiting at Wurtulla near Caloundra. They have lived on the Sunshine Coast ever since. In June 1993 their daughter, Taylah, was born. Jackson and Taylah are the only two children still living with the plaintiff. Had the plaintiff not suffered the back injury her mental disorder would have had only a minor effect on her ability to work. It might from time to time have affected that ability for a few weeks, up to a month or two.

[22] The plaintiff continues to suffer from the mental disorder, which has been aggravated chiefly by the persistence of her back pain, although other stressors have also played a part. The plaintiff's narcotic dependence was an indirect consequence of her back injury, and that dependence would probably not have occurred had it not been for the back injury. Among the other stressors were a miscarriage in 1992, the loss of Mr Howard's fishing lure manufacturing business in about 1996, and her bankruptcy in 1999.

[23] Dr Martin Nothling, consultant physician in psychiatry, in a report dated

27 August 2000, expressed the opinion that the plaintiff probably suffered from a major depressive disorder prior to 2 December 1990. Dr Peter Mulholland, psychiatrist, disagreed with that diagnosis, and assessed her condition before

2 December 1990 as an adjustment disorder with depressed mood or dysthymic disorder. As I have indicated, I accept Dr Mulholland's assessment, which, in my view, is consistent with the plaintiff's history, particularly in 1990: a note made at the Springwood Medical Centre records that by 11 August 1990 anxiety attacks were rarely a problem, although on 20 September 1990 she was found to be depressed. On the night of her fall, however, an anxiety attack was the reason for Dr Harkins's attending her.

[24] The plaintiff was born on 11 February 1958. She completed Year 10 at a Brisbane high school in 1972. Prior to her fall, she had worked as a clerk, a typist, and a secretary, and also as a receptionist and cleaner. In the three years before her fall she worked as a casual clerk in July and August 1988, as a part-time clerk working twenty to twenty-five hours a week between late October 1988 and early

January 1989, as a temporary secretary in April 1989, and as a full-time secretary in May and June 1989 earning on an average of $360 per week after the deduction of income tax, and from early April 1990 to early July 1990 as a casual secretary earning on average about $210 per week after the deduction of income tax. When she was living at the house in Chatswood Hills she was receiving a supporting parent's pension. In 1991 she began a two-year Associate Diploma of Business course at the Logan Technical and Further Education College, intending to return to work after she had completed the course. In 1991 she passed all subjects but one on her first attempt. The one she failed she passed on a second attempt. In

November 1991, after completing the first year of the course, she moved from Brisbane to Wurtulla. She could have continued the course on the Sunshine Coast but found that `physically' she was unable to do so. Her back was painful when she sat in lectures and studied.

[25] In October 1992 the plaintiff began work at Maroochydore as a temporary secretary with the Queensland Building Services Authority. The job began as a

full-time position, but she found she was unable to work the full hours and so her hours of work were reduced. She found sitting at a desk for long periods aggravated her pain, and so she was obliged to give up after about six weeks. She has not worked for reward since then. She has performed unpaid secretarial work for her sister Carol in a leathercraft business, and unpaid secretarial and bookkeeping work for the Landsborough and District Sport and Recreation Club. She also worked without pay in the bar at that club. Although it would be possible for the plaintiff to work intermittently, she would be unable to undertake regular paid employment because of the frequent onset of pain and the effects of her mental disorder. She has therefore been left with no effective earning capacity. Had she not been injured she would have returned to work after the completion of her TAFE course. Had she been able to get work as a business manager or administrator she would have earned substantially more than she would have as an experienced secretary. After the birth of Taylah she would have returned to work part-time at first and then full-time when Taylah was about four years old.

[26] The plaintiff has suffered persistent disabling back pain since her fall and will continue to do so in the future. The pain severely inhibits her ability to do, or to enjoy doing, everyday tasks. She is unable to enjoy tennis, squash, or aerobics. In addition, she has had the effects of the mental disorder aggravated and prolonged chiefly by the pain caused by her back injury. I assess her damages for pain and suffering and loss of amenities at $80,000: $40,000 for the past and $40,000 for the future.

[27] The plaintiff claims damages for past impairment of earning capacity. That part of the claim was formulated on her behalf in a schedule at $180,247 to

24 February 2003 on the premiss of her resuming employment on

1 December 1992, after completing the two-year TAFE course, and receiving from 1 December 1992 to 30 June 1997 (with a gap from 1 April 1993 to 30 June 1994 to allow for the birth of Taylah) income at the rate applicable to a level 3 employee under the Clerical Employees Award and, after that, at the rate applicable to a level 4 employee under the same award. The proposed assessment of $180,247 is conservative in allowing for only part-time work (twenty-five hours per week) until 30 June 1997 (i.e., until Taylah was four years old) and in allowing more than a year off work around Taylah's birth. The calculation is based on an award wage for a secretary with no overtime payments, above-award payments, or promotions, and it does not allow for the plaintiff's employment as a business manager or administrator with a TAFE qualification.

[28] On behalf of the defendant Mr Campbell took no exception to the $180,247 as a figure with which to begin making the assessment, but he submitted that, when such factors as the added burdens `imposed' by the birth of Taylah and the `probability' that the plaintiff would have worked for little gain in Mr Howard's business, that figure should be substantially discounted. Although each of those impediments to her earning capacity was a possibility, I do not think they go much beyond remote possibilities as impediments: the addition of Taylah to her family would have encouraged her to provide more income for the family and encouraged her to overcome any obstacles in achieving that end; and any work for Mr Howard could have been done outside her other working hours. Nonetheless some allowance should be made for the possible negative effects mentioned by Mr Campbell, and also for her earnings when employed by the Queensland Building Services Authority and for contingencies including recurrences of her pre-fall mental disorder. Taking those positive and negative factors into account and bearing in mind the time that has elapsed since 24 February 2003, I conclude that $175,000 is a reasonable assessment of this aspect of her claim.

[29] I assess her damages for future impairment of earning capacity at $220,000. Had she been employed as a level 4 employee under the Clerical Employees Award she would have been earning $468 per week after the deduction of income tax now. That figure too is conservative. She would have approximately another fifteen years of working life left (to the age of sixty). Applying the five per cent. table to the $468, I arrive at $259,740. Discounting for contingencies, and for the possibility of her not working full-time to retirement I shall allow $200,000.

[30] A claim to more than $500,000 is made for the plaintiff's need for assistance and services: $167,000 for the past and $369,810 for the future. A schedule (exhibit 16) was provided for the past to 24 February 2003; and reliance was placed on the evidence of Dr William Meyers, general practitioner who has been consulted by the plaintiff since 1996, that she would require help for three hours a day for the rest of her life and that in the past she had needed help for longer than three hours a day, on occasions all day and all night.

[31] A calculation based on exhibit 16 of $185,629 was not in issue. The plaintiff's claim to the $167,000 was arrived at by discounting the $185,620 by ten per cent. Further discounting was called for, Mr Campbell submitted, to reflect overlapping and exaggeration of the claimed times. While there may have been some overlapping and exaggeration I am not persuaded it was great. The plaintiff's difficulties in performing ordinary household chores and her absences in hospital call for a substantial award for the past, I conclude. Bearing in mind too the time that has elapsed since 24 February 2003, I shall allow $150,000 for the past.

[32] At the agreed rate of $15 per hour the claim for the future need for assistance and services began then with a figure of $315 per week for a life expectancy of

thirty-seven years. Applying the three per cent. table (agreed as the relevant table) to the $315 I arrive at the $369,810. Allowing however for contingencies, the lighter load on the plaintiff when Jackson and Taylah leave home, and the normal effects of ageing, I conclude that that figure should be substantially discounted. I shall allow $300,000 for the future.

[33] For future pharmaceutical expenses $91,772 was claimed, based on an estimate by Dr Meyers of $445 per month (exhibit 30). Applying the five per cent. table to $102.70 per week ($445 x 12 ÷ 52 = $102.69) for thirty-seven years, I arrive at $91,814. Taking into account contingencies, I shall allow $75,000. As to the plaintiff's life expectancy see Luntz, Assessment of Damages for Personal Injury and Death (4th ed., 2002), p. 705.

[34] It was agreed that loss of past superannuation loss should be assessed at five per cent. of the sum allowed for past impairment of earning capacity. I shall accordingly allow $8,750 for that loss.

[35] For future superannuation loss it was agreed that nine per cent. of the sum allowed for future impairment of earning capacity would be appropriate. I shall accordingly allow $18,000 for that loss.

[37] The remaining claims were to interest at agreed rates, in each case for ten years: two per cent. per annum on the sum allowed for past pain and suffering and loss of amenities; five per cent. per annum on the sum allowed for past impairment of earning capacity less benefits paid by Centrelink agreed at $53,480.68, leaving $121,519.32; five per cent. per annum on the sum allowed for past need for assistance and services; and five per cent. per annum on special damages paid by the plaintiff, agreed at $8,079.63. Those sums come to $8,000, $60,760, $75,000, and $4,039.81 respectively.

[38] There will be judgment for the plaintiff against the defendant for $1,248,402.54, which includes $147,799.81 for interest. I shall invite further submissions on costs.