By Statement of Claim filed in this Court on 25 August 2020, Neil Carpenter ('the plaintiff') seeks damages, costs and interest as a consequence of injuries alleged to have been sustained in a fall on 13 April 2018 at 20B Werrina Parade, The Entrance ('the property') where he was staying for a social golf weekend.
Damian James Russell and Vivianne Russell ('the defendants') are owners of the property.
The plaintiff's claim is brought pursuant to the Civil Liability Act 2002 (NSW) ('CLA').
[2]
BACKGROUND
On 13 April 2018 the plaintiff travelled with his friends to stay for several days at the property for a golfing trip with other keen golfers and to enjoy a weekend by the coast.
The group, some who were not known to the plaintiff prior to this trip, played a game of golf on the Saturday afternoon of 14 April 2018 and then returned to the property. Shortly after their return, there was a presentation based on the golfing results, and the plaintiff was given a number of golf balls as awards for his golfing success.
This presentation occurred at the back of the property on a verandah with terracotta tiling set above the level of surrounding land by less than one metre. There were no rails around the edges of the verandah. There was a short set of stairs leading down to the ground.
When the plaintiff was receiving the golf balls, he accidently dropped one and saw it bouncing down the stairs, and he believed that the golf ball would then go under a fence and roll some further considerable distance (T138.29; T139.8). The plaintiff then did 'turn and took two steps to go down and get it' (T13.16). He went after the ball and stepped from the terracotta tiling onto the set of stairs. He denies that he was moving quickly (T139.14).
The plaintiff stated that the step felt slippery, like ice (T13.44; T13.49) and he thought the stairs had some salt spray and mould on them (T106.24) or that there may have been moss on the stairs (T140.2-T141.1), and he did not resile from this evidence during cross-examination (T174.47-T175.15).
The plaintiff said he was going at a medium walking pace (T14.23; T139.47). The first step he touched was with his right foot and when he did so, he gave evidence that his foot slipped on the edge of the stair causing him to fall feet forwards and land on his back and elbow (T14.45), however, his main complaint was pain in his lower back (T21.47; T21.50).
The plaintiff denied that he misstepped rather than slipped (T144.15) and he had not been drinking and was not holding a can (T145.1-16).
Shortly thereafter, the plaintiff took some photographs of the stairs, and at some stage well after the fall, he organised for a friend of his to go and collect some of the materials from which the stairs had been made.
The plaintiff's evidence was that after the accident he did not play any golf, and instead laid down to try and recover whilst the others played another game the next day. He was able to drive home on the Sunday, with some difficulty.
He attended his usual general practitioner ('GP') on the Monday following the accident (T20.43-47; T42.15). The plaintiff saw a doctor again on 17 April and was unfit for work from 16-23 April (T43.17; T43.25). He took further unpaid leave from 23 April to 26 April (T44.44; T108.6-14).
He also said that he had put on about 20kg since the accident (T8.39; T8.48; T94.131; T136.39-43).
Prior to the accident, the plaintiff was employed by Redfern Flinn as an electrical fitter in crane maintenance, and earnt approximately $1,400 per week (T57.32) and did not attend work for about a week after the accident. Upon his return, he tried to cope with his job, whilst on restricted duties, but was unable to return to his pre-accident duties.
The plaintiff struggled on until 1 May 2018 when he was required, in the course of his employment, to lift up a ramp which he estimated was about 40kg in weight, onto the bed of a trailer. The reason this task was to be done was so that a scissor lift implement could be driven onto the trailer and be transported to a worksite.
The plaintiff gave evidence that as he lifted up the ramp, he felt sudden pain and a popping sensation in his back. This, in his view, aggravated the injury caused by falling down the stairs on the golf weekend (T159.31) and probably caused further injury.
The plaintiff remained off work until November 2018, and in receipt of workers compensation benefits for an aggravation of his previous injury (T48.38). He was required to pass a medical fitness test certifying him as able to return to his pre-injury duties before he could return to work (T81.18).
In order to undertake these physical assessments, the plaintiff gave compelling evidence that he denied having any symptoms of pain nor injury, and would take Endone before the assessment so as to mask the pain that he was experiencing, from the examining doctor (T66.24). He was then given clearance to work, and turned up at the workplace and intended to do his best. He stated that he did not think he was fit to return to work (T58.15) but wanted to return to work because he needed an income (T58.2; T64.20).
On his first date of return to work, the plaintiff arrived and was called 'fat' by his former workmates. Whilst the plaintiff agreed in evidence that he had put on a lot of weight since the accident, due to his admitted lack of movement and exercise and excessive alcohol consumption, he found the comment unwelcome and insulting. It was readily apparent to me when the plaintiff gave this evidence, this incident had caused him great upset and distress, which is understandable in the circumstances.
The plaintiff went about his work, but unfortunately he was treated very differently as to the way he was treated prior to the incidents, his evidence was that there was a lot of interest taken in him by the other workers. This, he stated, included people insisting that he put ladders on the top of his Mercedes Sprinter van, which was far too high to do that task, even for an uninjured person. The co-workers requesting that the plaintiff do this manoeuvre wanted to film him doing it, for reasons unknown, and kept pestering him for a few days, until they finally gave up.
After that point in time, the plaintiff was also followed around and 'micromanaged' by his employers and suffered a psychological reaction from what he described as bullying. The plaintiff made a further workers compensation claim in respect of the bullying and harassment he was subjected to when he returned to work at Redfern Flinn (T83.8). He said that it caused him to suffer from anxiety and depression and rendered him unable to work (T89.37).
The plaintiff left his employment with Redfern Flinn after about seven months, and tried to work for McColls, a dairy milk transport company (T157). He underwent a health assessment as part of the interview process for this job, and in evidence before me he admitted lying in that assessment about his generalised state of health and need for medication, in order to get the job (T158). The plaintiff got the job but turned it down because he realised he was unable to do the tasks required.
The plaintiff then managed to organise for himself a job as a truck driver for Linfox. In order for him to do this, the plaintiff had to withdraw himself from the very strong schedule 8 pain killers that he was taking (at that point in time, Endone) (T127), but that lead to him suffering pain in his lower back from sitting, constant sciatica, bum pain, leg pain and pins and needles (T127). He knew that he would need to be 'drug free' to fulfil the obligations as a truck driver.
Again the plaintiff admitted to lying in the medical examination at Linfox as he did not disclose the April 2018 fall or the May 1 accident, nor his depression and anxiety (T97.11-21; Exhibit 16). He also admitted to lying about his drinking (T99) as he wanted and needed to work (T117; T158). He was successful and got the job.
Unfortunately, the plaintiff had another incident at Linfox when he rolled his ankle exiting his truck onto a speed hump. He sought no medical treatment for this incident (T115-116).
The plaintiff had a further incident on 31 January 2020 when he fell out of his truck (T116.47).
The second accident occurred when the plaintiff was hanging onto a grip rail from the truck and leaning into the cabin to operate a switch while standing on the step that enables climbing in to the cabin. This accident occurred when the plaintiff was in considerable pain having driven the truck all day. I accept that the plaintiff had had a problematic back, and that this accident was as a consequence of his earlier injury, the subject of these proceedings, as the plaintiff by this point in time lacked dexterity and was working in pain, and as such, performing the task whilst hanging onto the rail was inherently risky.
It was put to the plaintiff in cross-examination that he made a workers compensation claim for injuries to his head, neck, back, shoulder, left arm and left knee. The plaintiff's evidence was adamant that he did not injure his back in that fall, but his previous back injury was the reason he fell (T117-120). This claim was ultimately rejected.
Despite gaining employment with Linfox in November 2019, the plaintiff was unable to cope with the rigours of the vibration and fixed position involved in driving the truck and would end the day in considerable pain. He would then try to ameliorate his pain with alcohol.
The plaintiff has not worked since, and has been in receipt of Centrelink benefits since 8 December 2020.
The plaintiff was cross-examined extensively to suggest to him that he was attributing the fall from the truck for the disability to his lower back, but it is submitted by the plaintiff, and I accept that the focus and investigation at that time was firstly to his neck and then to his knee.
The thrust of the plaintiff's evidence is not to suggest that he aggravated his lower back in the fall at Linfox. His position is that that accident gave him an injury to his neck, but it is still the back that causes most of his pain and consequent disability. The effect of this accident was to give him an injury to the neck which did not exist prior to the incident, but did not meaningfully change his level of disability. I accept that the plaintiff was trying to do his best to provide an accurate history to the doctors, and he should not be criticised when the histories recorded do not match up with the plaintiff's evidence.
Despite his injuries, the plaintiff gave evidence that he continues to play golf (T131-133), but his handicap has increased. He stated that he did not play golf between the end of 2019 and June 2020 as he was off the opiate medication that he had been taking to control his pain (T134). On the June long weekend, the plaintiff played golf and won the C Grade competition at the Nelson Bay Golf Club (T136; Exhibit 27). It was suggested to him that his golf card indicated that he played golf a lot more regularly than he stated. He explained that his brother often used his card to play as he did not have the money to have a gold membership. I accept that explanation.
The defendant made great moment of the various histories taken by various medical practitioners upon whom the plaintiff attended for treatment and the inconsistencies contained therein. Having had the opportunity to see the plaintiff give evidence before me, I accept him as a witness of truth.
The plaintiff impressed me as an open and honest witness. I accept that it can be difficult to remember everything that happened each day with regard to incidents that occurred years ago. More importantly however, there were instances where the plaintiff admitted to not telling the truth to prospective employers. This on one view may be something that could affect his credit. But the plaintiff gave the evidence clearly and in my mind honestly.
The plaintiff, to my observations, is a man who needed to work and still needs to work. He had a bad accident on the golfing weekend, and since then has repeatedly attempted to return to the workforce. On occasion he did not tell the truth to prospective employers and their pre-employment medical assessors. I am satisfied that he did so out of his desperate need for a job.
He took on tasks that were arguably beyond him, given his injuries and pain. He stopped taking his opiate medications before going for some jobs, cognisant that he may be drug tested. He did this not because he did not require the medication to lessen his pain, but again, as he was very keen to find work. It is common knowledge that were a worker to present for a job interview and disclose previous injuries, it is highly unlikely such an application would be successful. I accept that, to the extent that if he did not disclose the whole truth, it was driven by his desperation to obtain employment, and it does not impact negatively on his general credit. His evidence was forthright and he made concessions in the witness box that were against his own interests. He was not rattled at all by cross-examination, and I have no reason not to believe him.
It cannot be disputed that prior to the golfing weekend during which the plaintiff fell, he had a continuous pattern of employment. He had a number of different jobs over the years, but I accept that there were no breaks in between these jobs as a consequence of unemployment or workers compensation.
I find that the plaintiff is clearly a man who would much rather be spending his days working rather than avoiding work. I accept that he has worked very little since April 2018, and has failed twice in his attempts to work with his injuries, which demonstrates to me that his injury in April 2018 to his back was serious.
The plaintiff has claimed damages based on total inability to do his pre-injury occupations and has clearly demonstrated that he is unfit to do so.
Mr Maxwell Walsh ('Mr Walsh') gave evidence to the effect that he was a carpenter who knew the plaintiff from the subject golfing trip, but has not been in contact with him since, except for one occasion to see if the plaintiff wished to have another round of golf, but they did not meet up as the plaintiff was 'still sore from the accident' (T147.50).
Mr Walsh gave evidence about the golfing weekend, and stated that on Friday 13 April 2018, the day before the plaintiff fell, he, Mr Walsh 'walked out onto a [back deck] and slipped…and landed on my back' (T149.10-11; T151.7-9). It was 'pretty dramatic' and Mr Walsh was horizontal on his back after this fall (T151). Mr Walsh further gave evidence that he recalls the plaintiff falling on the stairs and it was a 'big massive thud and it wasn't something that was funny' and he expressed immediate concern for the plaintiff after the fall (T152.38-40).
Mr Walsh stated that he cannot remember if he had a look at the stairs after the fall but believes he probably would have being a carpenter who is involved with construction and safety (T152.45). Mr Walsh was not cross-examined.
[3]
EXPERT EVIDENCE
The plaintiff qualified Ms Sharon Todd, Certified Professional Ergonomist, and her reports of 13 November 2019 and 20 April 2021 were initially marked as MFI 5, and then tendered and marked Exhibit B.
The defendant qualified Mr Carl Strauntins, Certified Occupational Hygenist, Certified Materials Professional, and his report of 13 February 2021 initially was marked as MFI 4, and was then tendered and became Exhibit 31.
A joint expert report from Ms Todd and Mr Strauntins dated 24 May 2021 was initially marked MFI 6, and was then tendered and became Exhibit C.
The issues to be addressed and a Statement of Instruction was given to the experts for the purposes of the conclave and joint report as follows:
'The parties now put to you the following questions to be included in your joint report:
Upon what matters do the experts agree?
Upon what matters do the experts disagree?
In respect of the matters upon which the experts disagree, what are the reasons in support of each expert's position?
Should there be any relevant matters which are not covered by the questions referred to above, but you think are relevant to the proceedings, you should provide details of those matters and the basis upon which you determined their relevance.'
The experts agreed that the surface had a slip resistance value that was reasonably safe.
The experts agreed that at the time of the construction of the stairs, no handrail was required. However, Mr Strauntins stated as follows (page 4):
'The stairway retains tapered winders (wedge shaped step). This is significant as the going is variable in nature and the closer that a person steps to the inner edge of the winder, there is a greater risk of an overstep. This is an obvious risk in my opinion which a fall may result from inadvertence and in my opinion in consideration of the factors presented and my inspection it is more probable than not that this is the explanation as to the cause of the fall.'
Ms Todd opined that whilst a handrail was not required by the National Construction Code, the provision and use of a handrail could further minimise the risk of a slip and fall, and that a handrail can aid in the arrest of a fall where a slip has occurred.
The experts agreed that it is impossible to completely remove the risk of persons slipping on pedestrian surfaces. They agreed that where pedestrians are not aware a surface is wet, they are less likely to reduce their frictional demands, and that intrinsic and biomedical factors can be contributing to falls.
Mr Strauntins opined that the presence of any salt water on the stairs would not make any meaningful difference in the slip resistance, as the viscosity of the liquid would not significantly be different in context of the effect of slipping.
Ms Todd raises the question as to the contamination, if any, at the time of the accident and the time of the testing, which I accept must be of some significant relevance in this instance.
Further, Ms Todd opines as follows (page 6):
'As the cause of slips and falls are multifactorial so must be the controls. A suitable surface slip resistance on its own does not prevent a slip and fall. As the plaintiff was not familiar with the stairs, the application of additional controls can aid in his situational awareness and perception of the risk and can further minimise injury.'
The experts do not agree on the most likely cause of the alleged fall.
Mr Strauntins states there is nothing remarkable about this stair that has contributed a greater risk compared with the inherent risk attributable to stairways when constructed to the National Construction Codes. He further states (page 7):
'In my opinion, it is more probable than not that the fall occurred due to a misjudged overstep on tapered winder (going); I do not agree that the alleged fall was initiated by a slip from the defendant's negligence because the stair meets the requirements of the NCC, the slip resistance of the surface was sufficiently high and the effect of salt water would not have made any measurable difference in the risk of slipping.'
Ms Todd states that it is a matter for evidence as to whether the fall occurred due to an overstep on the tapered winder (going). She states as follows (page 7):
'Where the plaintiff's frictional demands were higher than the available friction on the subject tread a slip is likely. Where the available friction of the first tread or nosing below the landing was lower than the landing service over which the plaintiff had been walking, there is an increased risk of a slip (Christina 2002).'
The experts considered that there were no other matters significant to the proceedings.
Both experts agree that it is very difficult, if not impossible, to determine the cause of the plaintiff's fall. Both agree that it could have been an overstep. I accept that a person using stairs may misjudge their footing and slip or trip (see Stannus v Graham [1994] Aust Tort Reports 81-293). I also accept that it may be categorised as an everyday risk that members of the public avoid by taking care for their own safety.
Section 5B of the CLA states:
'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.'
Under s 5B of the CLA, I must first determine what the relevant risk of harm was in these circumstances. I find that the relevant risk was that of a person slipping or falling on external helical stairs where no handrail was present.
The defendant concedes that the risk of harm was foreseeable within the meaning of s 5B(1)(a) of the CLA.
I find that the risk was significant. External uncovered helical stairs at the rear of a property which is close to the beach, and which could well be coated or contaminated with sea spray, or moss, as noted by the plaintiff are, in my view, likely to accumulate such contaminations, and should a person, unfamiliar with the stairs attempt to descend them, they could easily fall which may well, and in this instance did, have serious consequences borne out by the injuries sustained by the plaintiff.
The evidence of Mr Walsh was that he had slipped on some decking the previous day, but not where the plaintiff fell, is significant. Whilst there is no evidence that the decking Mr Walsh fell on was the same or similar to the decking the plaintiff fell from, I think it would be reasonable for me to assume that more likely than not it was similar.
Whilst Mr Walsh did not depose to the materials being the same, criticism is made by the defendant as to his evidence, and it is suggested by the defendant that it cannot advance the plaintiff's case. However, the defendant chose not to cross-examine Mr Walsh. As such, the defendant cannot advance a case contrary to Mr Walsh's evidence: Browne v Dunn (1893) 6 R 67.
I accept that Mr Walsh was a frank and honest witness. He did not try to gild the lily to support the plaintiff's case. His evidence was clear, concise and uncontested. The previous evening to the plaintiff's incident, he slipped on some external decking at the same property, and nothing further.
The experts gave evidence together.
Both experts conducted slip tests on the material of the stairs. Ms Todd did so through a sample provided to her by the plaintiff. Mr Strautins performed a site visit.
Both experts agree a number of factors are relevant as to whether a surface is likely to result in an accident through either slipping or falling. Mr Strauntins believes that an overstep is more likely on helical stairs. Little more can be gained from their oral evidence, in addition to the joint report.
The pleaded particulars of negligence are as follows:
1. Having on the premises, stairs constructed of material with inadequate slip resistance;
2. Having on the premises stairs constructed of material liable to become excessively slippery when covered with salt spray and other contamination, in circumstances where salt spray from the nearby coastal waters would inevitably accumulate on the stairs;
3. Failing to have cleaned the stairs to limit the slipperiness of the stairs as aggravated by the presence of the salt spray;
4. Having on the premises, stairs constructed without non-slip tread and nosing surface;
5. Having on the premises, constructed of material with lower slip resistance than the slip resistance of the balcony adjacent to it such that the frictional demands the plaintiff was likely to place on the stairs were likely to exceed the friction available;
6. Failure to provide any [sic] or any sufficient warning that the stairs were slippery;
7. Failure to provide the stairs with a handrail to assist and mitigate the consequences of any slippage;
8. Having constructed stairs on the premises with a helical design liable to increase the risk of slipping and tripping;
9. Having constructed on the premises stairs with risers of uneven height; and
10. Failure to block access to the stairs in the event the danger could not otherwise be significantly mitigated.
In circumstances where expert witnesses cannot agree as to how the incident occurred, I accept the plaintiff fell in the manner he described and on the balance of probabilities that occurred because the steps were inherently unsafe, unguarded and no railing was available to arrest his fall.
[4]
LEGAL PRINCIPLES
The defendant owes the plaintiff a duty to take reasonable care to avoid a foreseeable risk of injury to the plaintiff: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479. The obligation to exercise reasonable care to prevent injury extends to an entrant who uses reasonable care for his or her own safety: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [45] (Gummow J); applied in Laresu Pty Ltd v Clark [2010] Aust Torts Reports 82-068 at [38] (Macfarlan JA, Tobias JA and Handley AJA agreeing).
Any person using stairs may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety: Stannus v Graham [1994] Aust Torts Reports 81-293 at 61,566 (Handley JA); Wilkinson v Law Courts Limited [2001] NSWCA 196 ('Wilkinson') at [32] (Heydon JA, Meagher JA and Rolfe AJA agreeing).
In applying s 5B of the CLA, I must determine what the relevant 'risk of harm' to the plaintiff was in a particular case, in order to assess what precautions a reasonable person in the position of the defendants should take - that is, was it foreseeable?: Uniting Church of Australia Property Trust (NSW) v Miller (2015) NSWLR 752 at [106] (Leeming JA); Port Macquarie Hastings Council v Mooney (2014) 201 LGERA 314 at [52]-[54] citing Bellingen Shire Council v Colavon Pty Ltd (2012) 188 LGERA 169; Roads and Traffic Authority (NSW) v Dederer (see [52]); Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151.
Section 5B(1)(b) of the CLA requires that the risk must be 'not insignificant'. This inquiry primarily involves an assessment of the probability of the occurrence of the risk. This must also be judged from the perspective of a reasonable person in the defendant's position, and in prospect not retrospect: Benic v State of New South Wales [2010] NSWSC 1039 at [93] (Garling J), citing Stojan v Kenway [2009] NSWCA 364 at [136] (McColl JA).
In terms of s 5B(1)(c), the CLA speaks in terms of what a person would have done to take precautions for their own safety. Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of the injury: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [126] (Hayne J); applied in Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 at [31] (French CJ, Gummow, Hayne, Heydon and Crennan JJ).
Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome: Mobbs v Kain (2009) 54 MVR 179 at [92] (McColl JA, Macfarlan JA agreeing); see also Marien v Gardiner (2013) 66 MVR 1 at [13] (Meagher JA, Macfarlan and Emmett JJA agreeing).
The test for negligence is always 'whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care': Derrick v Cheung (2001) 181 ALR 301 at [13] (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ).
A failure to eliminate a risk that was reasonably foreseeable and preventable is not necessarily negligence. Rather, it is necessary to determine what a reasonable response to that risk was: Tame v NSW (2002) 211 CLR 317 at [99] (McHugh J) cited in New South Wales Department of Housing v Hume (2007) Aust Torts Reports 81-879 at [91] (McColl JA). This is particularly so when dealing with stairs that are inherently but obviously dangerous: Hilas v Todbern Pty Ltd (t/as Hurstville Supercentre) [2007] NSWCA 315 at [10] (Hislop J, McColl JA and Handley AJA agreeing) citing Wilkinson at [32].
Section 5E of the CLA provides that in proceedings relating to liability for negligence, the plaintiff always bears the onus of proving causation. To satisfy s 5D(1) of the CLA the plaintiff must satisfy the Court on the balance of probabilities, any fact relevant to the issue of causation. To satisfy s 5D(1) of the CLA, the plaintiff must satisfy the Court that on the balance of probabilities, had the precautions been implemented prior to the incident, the risk of harm would have been avoided: Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy [2015] NSWCA 253 at [95-[96] (Leeming JA, McColl and Basten JJA agreeing).
The plaintiff's case, in summary, is that the plaintiff slipped and fell on stairs that were helical, external and slippery, due either to sea spray or moss on the stairs, or a combination of both. Further, they submit that there was a number of reasonably practical measures that could have been taken to ensure that the stairs were safe for use by persons such as the plaintiff.
Those measures have been described above, and discussed by the experts, also above. Primarily, the steps that could have been taken, as asserted by the plaintiff, and to some extent, recommended by Ms Todd were:
1. Cleaning and/or washing of the steps so as to eliminate any sea spray or moss;
2. Installation of a railing so as to arrest a person who may have slipped on the stairs, and to act as a visual cue; and
3. Signage to indicate that there were stairs that may have been dangerous.
I accept that s 5D(1) of the CLA requires that the plaintiff must satisfy me that if the precautions that have been asserted ought to have been implemented, and had been implemented, the risk of harm would have been avoided.
The defendant's case is that the accident occurred as a result of an overstep by the plaintiff. They assert that there is no evidence, including the photographs tendered (Exhibit A) to establish that there was any sea spray or moss on the stairs. Further, the defendant submits that a consideration of the reasonable steps that the defendant could have taken includes physical amenity and aesthetics of the area.
Having regard to the evidence and the principles set out above with regard to liability, I make the following findings:
1. The defendant owed a duty of care to the plaintiff as an invitee to the property and as a consumer of services pursuant to the rental contract.
2. The duty of care included an obligation to ensure that the premises were safe and free of hazards.
3. The obligation in relation to safety was an obligation to ensure that persons present could engage in ordinary social discourse and move around the premises freely and without encountering undue hazard.
4. If the stairs in question were unsafe due to slipperiness caused by the accumulation of sea spray, or moss, or a combination of both, the defendant is in breach of their duty of care regardless of whether the accident eventuated.
5. Accepting as I do that the plaintiff fell as described including his description of the stairs being slippery, the defendant is liable for any injury and damages caused by the fall.
6. The stairs at the premises were slippery at the time of the fall in the way described by the plaintiff in his evidence, either due to the accumulation of sea spray, or moss, or a combination of both.
7. Stairs, and in particular helical and external stairs, are inherently dangerous.
8. The witness, Mr Walsh, slipped on the deck at the back of the property and observed it was very slippery.
9. The deck out the back of the premises was more probably than not made of similar materials as the stairs the plaintiff slipped on.
10. The frictional co-efficient of the material used for the stairs is about 43-45 measured across the grain pattern but a lot less running along it.
11. The frictional co-efficient of the rounded edge of the step was not measured by the pendulum machine used by the experts.
12. It is not possible to say what the amount of friction on the edge might be except that generally a higher profile surface will produce a higher co-efficient of friction than a lower surface.
13. The experts could not agree on how the plaintiff in fact fell, Ms Todd suggesting a slip, and Mr Strauntins suggesting an overstep.
14. The stairs did not have a handrail and a handrail could have assisted in either preventing or mitigating a fall. A handrail would have provided a useful visual cue as to the curvature and the course of the stairs.
15. The Building Code of Australia did not require the stairs to have a handrail when built but when used for commercial purposes SafeWork Australia Code of Practice says they should have a handrail.
16. There were reasonably practicable and inexpensive steps that the defendant could have taken to avoid the risk of someone falling.
I therefore find that the plaintiff's fall and the injuries he sustained in the fall on 13 April 2018 was as a result of the defendant's negligence. There are no grounds for a deduction for contributory negligence.
[5]
ASSESSMENT OF DAMAGES
Having found the plaintiff is entitled to a verdict against the defendant, I will now assess damages, and make the following findings:
1. The plaintiff suffered an injury to his back in the subject fall. The injuries are documented in, and described by his treating medical practitioners.
2. He was certified as unfit for work between 16 and 23 April 2018, and took further leave between 23 and 26 April 2018.
3. Prior to the accident, the plaintiff was employed by Redfern Flinn as an electrical fitter in crane maintenance and earned approximately $1,400 per week.
4. When the plaintiff returned to his job at Redfern Flinn he struggled with the duties involved due to his back injury.
5. The plaintiff suffered a further injury at Redfern Flinn when he was required to lift a ramp.
6. He remained off work until November 2018. This was an aggravation of his previous injury at the golf weekend.
7. The plaintiff was required to pass a medical fitness test before he could return to his pre-injury duties. In order to pass this test, the plaintiff denied any previous injuries and to mask his pain, took Endone before the assessment.
8. The plaintiff was cleared to return to work, and wanted to do so as he needed an income.
9. On his return to work, he was bullied and belittled by his former workmates which upset him greatly.
10. He attempted to perform the work allocated to him but was unable to continue due to his back pain.
11. The plaintiff remained at Redfern Flinn for about 7 months and then applied for work with a dairy transport company, McColls. He underwent a health assessment as part of the interview process and lied about his generalised health and need for medication.
12. Despite passing the assessment, the plaintiff declined the job as he felt he was unable to do the work.
13. The plaintiff organised for himself an interview with Linfox as a truck driver, and in preparation for the interview withdrew himself from his opiate and narcotic medicine, as he knew he would be tested for these drugs. He continued to suffer significant pain.
14. He again lied in the medical examination at Linfox, as he was desperate for work.
15. The plaintiff had two further incidents at Linfox, and ultimately was unable to cope with the rigors of truck driving, would end each day in pain, and self-medicate with alcohol.
16. The plaintiff was a witness of truth, who often gave evidence against his self-interest. I accept he told lies in order to secure employment. He kept trying to get work despite his considerable pain and disabilities, as a consequence of the golf weekend accident.
17. The plaintiff has been completely incapacitated for work since 8 December 2020 as a result of the injuries suffered in April 2018.
18. Despite being motivated to return to work, the plaintiff does not have any capacity for his pre-injury employment, being either electrical fitting and maintenance or truck driving.
19. The plaintiff is totally unfit for his pre-injury duties, despite him trying to do so.
There were strong and genuine reasons which I accept motivated the plaintiff to lie. He was injured, unemployed and needed money. He wanted to get his life back to normal. I find that he had always been a hard worker, and after the golf weekend accident, he did whatever he needed to do to return to the workforce, often working in significant pain. He had never been in receipt of unemployment benefits, up until the accident.
The medical evidence demonstrates evidence of degenerative change to the plaintiff's spine, which I accept was as a consequence of having done heavy work for many years, that the plaintiff was unlikely, but for the accident, to continue doing heavy physical work until his statutory retirement in 15 years' time.
I accept the plaintiff would have managed truck driving until retirement if there was minimal heavy lifting, but may well have looked for other more suitable employment. However, I do accept he would have worked until the statutory retirement date.
The Amended Statement of Particulars claims future loss of earnings at $600 per week, which is a concession as to having a residual earning capacity of about half for the balance of working life, with the addition of a buffer. I accept that the plaintiff has had an ongoing problem with his lumbar spine since the injury sustained on the golf weekend. I also accept that he has had aggravations of the lumbar spine, and other injuries to his arm and psychological sequelae, it is difficult to calculate future economic loss with any real precision.
I accept the figures and calculations as the plaintiff's past loss of earnings at $96,451 and loss superannuation of $11,197, and I propose to make those awards.
The defendant submits that the views of Dr Smith (Exhibit 34) should be preferred, and the opinions expressed in Dr New's report (part of Exhibit E) ought be disregarded as they were based on an incorrect history.
Dr Smith was qualified by the defendant to examine the plaintiff and provide a report. He diagnosed the plaintiff as having sustained a likely aggravation to the cervical and lumbar degenerative disease as a result of the incident, from which he has long since recovered and further opines that the plaintiff's complaints of becoming worse with the passage of time, as somewhat unphysiological. He went on to say there is nothing wrong with the plaintiff, there is no objective evidence of any ongoing incapacity and he is therefore fit to engage in his pre-accident activities and has no need for any care and assistance.
In my view, Dr Smith cannot say, based on the histories given, and does not say, what injuries the plaintiff sustained in the accident. I disagree with his expression that the plaintiff's complaints of worsening are unphysiological. On the contrary, I accept that once pain is elicited in the spine, and activities by the plaintiff continue, the area continues to degenerate and thus causes a worsening of symptoms, consistent with the plaintiff's evidence.
It is clear that the plaintiff suffered injuries to his back in the subject accident. It is clear that he has made many attempts to return to the workforce, but he is totally unfit to do any of the jobs he had done prior to the accident. There can be no question that he is highly motivated to return to the workforce, but it is his injuries sustained in the accident that are preventing him from doing so.
Necessarily, future loss must be estimated and the figure arrived at is a matter of judicial impressions and experience. The plaintiff submits that the final determination is for the Court, but suggests that a buffer of $75,000 is appropriate noting that a significant cushion can be awarded: State of NSW v Moss (2000) 54 NSWLR 536 at [87] (Heydon JA); Jopling v Isaac [2006] NSWCA 229; and Black v Young (2015) MVR 174.
I accept that his pre-injury earnings were approximately $1,400 per week and it has been conceded that his residual earning capacity is about $600 per week. If one was to multiply that out for 14 years on the 5% tables (multiplier 529.3), it would come to a figure well over $300,000. Given the vagaries of what might occur in the future and the uncertainty of whether the plaintiff would remain as a truck driver until retirement age, I propose to allow a buffer for his future loss of earning capacity in the sum of $75,000.
The plaintiff makes a claim for general damages for the loss of enjoyment of life and pain and suffering. His evidence was that after the accident on the golf weekend, he could only pursue golf at a much reduced level, and cannot play without taking some narcotic medication.
The defendant cross-examined the plaintiff with regard to his participation in golfing competitions. The plaintiff's evidence was that sometimes his brother played golf on the plaintiff's golf membership, and that explains the number of golf games the plaintiff has played since the accident. The cross-examination did not shake the plaintiff at all, and I accept that a fair number of the golf games recorded against the plaintiff's number were actually played by his brother, who did not have sufficient funds to maintain his own membership. The plaintiff's capacity for golf was clearly diminished, despite his love of the game, and his brother was the beneficiary of the membership.
The plaintiff's evidence about the effect that the accident has had on him was very sad. It was clear to me that the plaintiff loved his golf before the accident and enjoyed the competitive side of the game. It is plainly obvious that his enjoyment of life has been diminished, and he gave compelling evidence that he continued to play golf despite his physical limitations because it was all he had in life, and he had been advised to do whatever movement he could. He said that he did not play social golf as he was unable to cope.
Whilst there was no evidence as to why social golf might be more arduous than competition golf, I accept that the golfing competitions do not require any qualifying level of ability to play.
The plaintiff's evidence of pain and abandonment of pre-accident activities was not embellished. To the contrary, he was willing to describe the limits of what he could do and the lengths, in terms of painkillers, he went to do it. His living circumstances have also been negatively impacted by his injuries and his lack of income.
In all the circumstances, and having accepted the plaintiff as an open and honest witness, I find that the plaintiff is 25% of a most extreme case pursuant to s 16 of the CLA, which equates to $44,500.
There is no claim for past domestic assistance under s 15A of the CLA.
With regard to future assistance, the plaintiff spoke of the domestic tasks that he cannot do, such as mow the lawns. That is not required of him at present as he lives in a caravan. Sadly, his evidence was that he did not know where he would be living after he has to leave the caravan park at the end of the year. In those circumstances I propose to allow one hour per week of paid care for the balance of his working life, which equates to $46 per hour for 14 years, on the 5% table of multipliers (529.3) = $24,347.80.
The vast majority of the plaintiff's medical expenses to date have been met by Medicare. The plaintiff has given evidence that he has had a number of injections to his lumbar spine, been under the regular care of his general practitioner and continued to take strong opiate medications. The plaintiff has completed a Medicare list of benefits, using his unusual style of ticking boxes which would represent a charge of $1,217.75. I note that the defendant does not concede anything after 1 May 2018, however, the plaintiff concedes that an apportionment of half to the subject accident and half to other conditions is reasonable, and I will allow that.
A claim is also made for an allowance of $1,987.50 for over the counter pain killers, travel to and from medical appointments and prescription medications. Whilst the receipts are not available, given the very modest sum, balanced against the plaintiff's evidence as to the medications that he was taking and the medical appointments he was attending, I will allow this figure.
A claim is made for future medical treatment as a buffer of $30,000 noting the ongoing requirement to consume analgesics and the possibility of a spinal fusion. The plaintiff gave evidence that he continues to take Endone, will have further physiotherapy, and intends to have the spinal fusion if that is recommended to him by his medical practitioners. I will allow that sum.
Thus, damages are assessed as follows:
Non-Economic Loss $ 44,500.00
Past Out-of-Pocket Expenses $ 2,596.38
Future Out-of-Pocket Expenses $ 30,000.00
Past Loss of Earnings $ 107,648.00
Future Economic Loss $ 75,000.00
Future Commercial Care $ 24,347.80
Total: $ 284,092.18
Plus costs as agreed or assessed
[6]
ORDERS:
I make the following orders:
1. Judgment for the plaintiff in the sum of $284,092.18.
2. Defendant to pay the plaintiff's costs as agreed or assessed.
3. Leave to the parties to approach my associate within 14 days if an alternate costs order is sought.
[7]
Amendments
31 August 2021 - Correct spelling of the name Redfern Flynn to Redfern Flinn
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Decision last updated: 31 August 2021