[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
MACFARLAN JA: I agree with Hoeben JA.
HOEBEN JA:
Nature of proceedings
On 24 October 2010 the respondent (plaintiff) slipped on a path leading from the appellant's (defendant's) house. The respondent brought proceedings in negligence against the appellant alleging that certain steps on the path were excessively slippery.
Those proceedings were heard by Finnane QC DCJ on 29 July - 1 August 2014, with judgment being delivered on 22 September 2014. The respondent was successful in her claim and was awarded damages in the amount of $736,435. The appellant has appealed and has challenged the judgment in three respects:
1. The finding of negligence against him.
2. The finding that there was no contributory negligence on the part of the respondent.
3. The damages of $387,141 awarded in favour of the respondent for future paid assistance.
Factual background
The following factual matters were either not in dispute or were findings made by the trial judge which have not been challenged.
At the time she was injured, the respondent was aged 57, having been born in December 1956. Her home and that of the appellant adjoined each other. The appellant was an elderly man in his early nineties. The respondent frequently visited the appellant and his wife. This was because the appellant's wife was ill with pancreatic cancer and he had problems with his feet, which the respondent used to treat. The distance between the two houses was about 500 metres.
Approximately 18 months to 2 years before the respondent's fall, the appellant installed steps on a path leading from his home to a street. There were three steps made from a substance known as "Caesarstone" which is used for benches in kitchens. It was common ground that Caesarstone becomes slippery when wet. Tests carried out on the Caesarstone steps by experts produced a BPN (British Pendulum Number) of between 34 (blue 143k) and 25 (blue 230n). The recommended BPN range for an external walkway was between 45 and 54.
A couple of months after he had installed the Caesarstone steps, the appellant was descending them when he slipped . As a result of that slip, he attached squares of carpet to the top of the Caesarstone steps. There was no evidence as to the composition of the carpet, nor as to its capacity to prevent slipping. A single carpet square was placed on each of the steps, but the carpet did not cover the whole of the step at any level. Photograph A of Exhibit P1, which was a photograph of the steps with the carpet squares affixed to them, showed the carpet squares in the middle of the steps leaving a border on each side which was roughly the width of a brick placed lengthways.
Photographs A, B and E of Exhibit P1 were taken from the perspective of someone moving from the appellant's house and travelling in the same direction as the respondent. They showed that the path from the house initially comprised bricks placed into the earth and level with it. The path appeared to slope gently downwards from the house. Approximately half way along the brick portion of the path, a metal handrail commenced and extended to just beyond the first two Caesarstone steps, finishing at the beginning of the third step. The handrail was on the right side of the path as one moved from the house down the path.
Photograph A of Exhibit P1 showed an earth track diverging to the left at the end of the brick portion of the path and slightly before the commencement of the first of the three Caesarstone steps. Again, the perspective is from a person moving down the path from the appellant's house. The earth track was consistent with persons using the path, stepping off it to the left onto the grass before the commencement of the Caesarstone steps and walking on the grass next to, but not on, the Caesarstone steps. The earth track next to the path appeared to continue down to the road.
Before the accident, the respondent had visited the appellant's home on 50 or 60 occasions. Most of the time she would enter and leave by a side entrance. That was not possible on the day of the accident because the appellant had stacked some fire wood in such a way as to block that means of access or egress. This meant that the respondent was obliged to use the front entrance, i.e. the path which has been described. She had used this path to gain entry and leave the appellant's premises about six times before the day of the accident. On none of those occasions had she used the Caesarstone steps, in going to or from the house. She would always walk on the grass rather than use the Caesarstone steps. She maintained that practice even after the appellant had placed carpet squares onto the steps. She did not use the Caesarstone steps because she regarded them as unsafe.
On the day of the accident, the respondent had visited the appellant's house in order to speak to his wife and to treat his feet. It had been raining heavily during the day. It was still raining when she left. She estimated her time of departure at between 7.30pm and 8pm. The respondent knew that the Caesarstone steps were slippery because she had been told, either by the appellant or by his wife, that he had slipped on them and that was why he had attached the carpet squares. At the time of the accident, the respondent was wearing sandals with a rubber sole.
When the respondent left, she was carrying an umbrella in her right hand (she is right handed) and walked along the brick portion of the path. She had the intention of stepping off the path onto the grass and then walking the rest of the way on the grass to the road. She did not use the handrail, which was on her right side. Although her intention was to step off the path before she reached the Caesarstone steps, the respondent inadvertently placed her left foot on a part of the top Caesarstone step which was not covered by carpet. Her left foot slipped sideways causing her to fall and suffer injury.
His Honour found that "her right foot struck part of the steps causing her to slip and suffer injuries" (Red 24N). It was agreed by the parties that his Honour was mistaken in that finding and that there was no evidence that the respondent's foot struck a step. The mechanism of the accident was that her left foot slipped when it came in contact with a part, which was not covered by a carpet square, of the top of the first Caesarstone step.
About 10 days after the respondent fell, workmen from the Department of Veteran Affairs came to the appellant's property and placed non slip strips across the Caesarstone steps and installed another railing down the left side as one walked from the house. This can be seen in photographs X and Y of Exhibit P1. Five strips were attached to each step. The appellant subsequently spoke to the respondent about this and said:
"You'll be happy next time you come up, you'll be able to walk up my path this time because Veteran Affairs have fixed it up and it's okay."
Was the appellant negligent?
The appellant has challenged the finding of negligence against him. He relies upon the following grounds of appeal. Since these grounds raise in different ways the same issue, they can be conveniently dealt with together. I have ignored Ground 1 since it was based on the factual mistake by his Honour which both sides acknowledged.
Ground 2 - The trial judge erred in finding that the risk was foreseeable.
Ground 3 - The trial judge erred in finding that the risk was not insignificant.
Ground 4 - The trial judge erred in finding that a reasonable person in the defendant's position would have:
(a) Either removed or replaced the steps with a ramp.
(b) Placed a barrier around the steps to prevent the likelihood of anyone walking on them.
(c) Totally covered the steps with some non-slip substance.
Ground 5 - The trial judge erred in finding that the state and condition of the steps were causally relevant in circumstances where the plaintiff was not walking on them and had chosen not to walk on them.
Ground 6 - The trial judge erred in failing to have regard to the measures taken by the defendant to render the steps safe for walking on, having regard to the way in which a reasonable person would have anticipated a person using the steps would walk on the steps.
Ground 8 - The trial judge erred in finding that it was reasonably foreseeable that the risk was not insignificant that a person would suffer injury when walking down the grass as a result of the person's foot inadvertently coming in contact with a step.
In relation to liability, the trial judge found that the Caesarstone was appropriate for bench tops in a kitchen, but was not suitable for steps because it was too slippery, particularly when wet. He found that the plaintiff would not step on the Caesarstone but followed the track across the grass because she was concerned that if she stepped onto the Caesarstone, she would slip. His Honour found that the appellant was aware that the Caesarstone steps were slippery because he had slipped on them. It was for this reason that he placed carpet squares in the middle of each of the three steps as a form of protection against slipping.
His Honour rejected the proposition that it would have been perfectly safe for the respondent to walk on the carpet squares while grasping the rail to the right of the steps. This was because the composition of the carpet squares was not known and there was no evidence that they would have been slip resistant in rain and they may have become sodden and dangerous when wet. His Honour found that the respondent was justified in avoiding the steps because she considered them to be unsafe and was entitled to walk on the grass on a track that she was used to walking on and had walked on safely on other occasions.
His Honour found that an appropriate response by the appellant to the known danger associated with the slippery steps was to have removed those steps and replaced them with a concrete ramp, or placed something around them to prevent a person's foot from slipping on them. The formal findings which his Honour made in accordance with s 5B of the Civil Liability Act 2002 (CLA) were:
"In formal terms I find:
The risk of the plaintiff slipping on the steps was foreseeable;
The risk was not insignificant;
In the circumstances, a reasonable person in the defendant's position would have done one of a number of things, either;
Removing and replacing the steps with a concrete ramp or;
Placing a barrier around the steps to prevent the likelihood of anyone walking on them or;
Totally covering the steps with some non-slip substance." (Red 33G -M)
In reaching that decision, his Honour relied upon two statements of principle. The first was that of the plurality (Mason, Wilson, Deane and Dawson JJ) in Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; 162 CLR 479 at 488 where their Honours said:
"12 In the circumstances of the present case, the fact that the respondent was a lawful entrant upon the land of the appellant establishes a relationship between them which of itself suffices to give rise to a duty on the part of the appellant to take reasonable care to avoid a foreseeable risk of injury to the respondent. …"
His Honour also relied upon the observation by Gleeson JA in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 where his Honour said:
"159 The scope of the occupier's duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, "the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case": Roads and Traffic Authority of New South Wales v Dederer and Another [2007] HCA 42; 234 CLR 330 at [45] (Dederer). This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Q'land) Pty Ltd [2005] HCA 19; 221 CLR 234 at [35]."
The appellant accepted as correct the statements of principle relied upon by the trial judge and accepted that he owed a duty to exercise reasonable care to avoid a foreseeable risk of injury to the respondent. He did, however, challenge his Honour's finding that this duty had been breached by him.
The appellant submitted that the relevant risk of harm was that a visitor would use the Caesarstone steps and would slip on them. He submitted that he had adequately responded to this risk by placing onto the steps squares of carpet in circumstances where there was a handrail to the right of the steps as one walked down the path from the house to the road. He submitted that his obligation was not to prevent or eliminate the risk of harm but to reduce that risk. He submitted that in those circumstances, he was not required to cover the whole surface of the steps with the carpet.
The appellant submitted that if the risk of harm were that a person using the steps normally and taking reasonable care for their own safety might slip on them, that risk had been adequately answered by the attachment of the carpet squares. This was because such a person would tread on the carpet squares and not on those parts of the steps which were not so covered. He submitted that in those circumstances, it was not reasonably foreseeable by him that a person would step on those parts of the steps which were not covered by carpet.
The appellant submitted that the obligation which he owed to the respondent was that of a normal home owner to a guest. The same obligation should not be imposed upon him as would, for example, be imposed upon commercial premises where there would be hundreds of persons using the path. He submitted that the correct characterisation of what happened was that he, as an ordinary homeowner, recognised that the Caesarstone steps were slippery, responded to that risk by placing carpet squares upon them and that was all that he was required to do. He could then rely upon persons such as the respondent to take care for their own safety by stepping on the carpet squares and using the handrail. Nothing further was required of him. He submitted that the accident had occurred because the respondent was not using the steps in a normal way. That is how she came to place her foot on a part of the top step which was not covered by carpet. Had she been using the steps in a normal way, she would have placed her foot on the carpet squares and used the handrail.
The appellant submitted that it was trite law that the question of breach had to be looked at prospectively from his point of view, making allowance for what he knew before the accident occurred. He submitted that once he had placed the carpet squares onto the steps, it was not reasonably foreseeable that a visitor would not use those steps but would tread upon an exposed portion of the Caesarstone on the far left of the path. In the alternative, the appellant submitted that even if such an event were foreseeable, the chances of it occurring were so low as to be insignificant thereby relieving him of any obligation to respond.
When considering a breach of duty, regard has to be had to s 5B CLA. That section provides:
"5B(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."
When one applies s 5B to the facts of this case, it is apparent that the appellant's submissions as to primary liability should be rejected.
The risk of harm should not be defined in a narrow way. Here the risk of harm was that a person, moving from the house to the road, would slip on one of the Caesarstone steps, particularly in wet conditions. That risk was not only foreseeable in the sense that it "ought to have been known", it was actually known by the appellant because he had slipped on the Caesarstone steps. His knowledge of that risk was confirmed by the expert opinion given at trial that the dynamic coefficient of friction was between .34 and .25 when the Caesarstone was wet. That is to be compared with the recommended level for the dynamic coefficient of friction of between .45 and .54. It is apparent that the element of slipperiness of these steps was well below the recommended level (Blue 230.J - Q).
The appellant's response to that foreseeable risk was to attach squares of carpet to part, but not all, of the Caesarstone steps. As his Honour pointed out, there was no evidence of what these squares of carpet were made and as to the extent, if any, of their anti-slip qualities. Dr Cooke, the expert retained on behalf of the appellant, was asked to assume that the carpet patches were made of a slip-resistant carpet-like material, but there was no evidence to that effect before the court. It follows that the evidentiary status of those carpet squares was that they were placed on the Caesarstone steps by the appellant following his own fall, but nothing is known about whether they reduced the slipperiness of the steps and if so, to what extent in wet conditions. If they did reduce the slipperiness, there was no evidence that they satisfied the relevant BPN safety standard or that of the dynamic co-efficient of friction. It remained unknown at trial as to whether this response by the appellant was adequate or not. Clearly the Department of Veteran Affairs did not think so, or it would not have intervened to apply non-slip strips to the steps approximately 10 days after the accident.
It follows that there is no evidence that the appellant made the steps safer by adding the carpet squares or that the respondent would have been any safer treading on the carpet squares in the conditions which prevailed on that night, rather than following the course which she did.
There is a further consideration which reinforces the conclusion that the requirements of s 5B have been made out. It is clear from photographs A and C of Exhibit P1 that the respondent was not the only person who regarded the Caesarstone steps with their carpet squares as dangerous and sought to avoid using them. This is apparent from the earth track, diverging to the left of the path, which appeared to be well worn. The worn nature of the track would have been obvious to anyone, including the appellant, who used the path. Accordingly, it was known that some persons were regularly avoiding the Caesarstone steps and using the grassed surface to the left of the steps in order to gain access to the road. Once that was known, it was foreseeable that such persons might miscalculate and inadvertently place a foot on the uncovered part of the Caesarstone, to the left of the top step, and slip. This is particularly so in rainy conditions when the person was holding an umbrella and when light conditions were not "pitch black dark but [were] getting onto night" (Black 37I).
The question of when a risk is "not insignificant" was considered by Campbell JA (with whom Hoeben JA and Tobias AJA agreed) in Sibraa v Brown [2012] NSWCA 328 at [49] where his Honour said:
"49 The standard for a risk being "not insignificant" is not particularly high. In Shaw v Thomas [2010] NSWCA 169 at [44], Macfarlan JA (Beazley and Tobias JJA agreeing) said:
"In Wyong Shire Council v Shirt, Mason J referred to a risk 'which is not far-fetched or fanciful' as being 'real and therefore foreseeable' (at 48). The requirement in s 5B(1)(b) that the risk be 'not insignificant' imposes a more demanding standard but in my view not by very much.""
As noted above, it is clear from the photographs in Exhibit P1 that a number of persons using the path avoided the steps by stepping to the left of the path before reaching them. Because that was a relatively frequent occurrence, there was a risk that one of those persons would inadvertently step on the uncovered portion of the top Caesarstone step and if they did, a significant risk that such a person would slip and be injured. Accordingly, not only was the risk foreseeable in the relevant sense but it was a not insignificant risk, both from the point of view of the likelihood of occurrence, and the consequences if it did occur.
For the reasons indicated, the response by the appellant was not adequate. The appropriate response was to remove or reduce the slipperiness of the Caesarstone steps. This could be done by adding non-slip strips, as did the Department of Veteran Affairs, or by otherwise appropriately covering the steps with a non-slip material or surface (Black 232J - K). The estimate of Dr Cooke for the cost removing and replacing the Caesarstone steps with safe steps was less than $1,000. It follows that a reasonable person in the appellant's position, being aware of the risk of harm, should have taken one of those remedial steps.
By reference to s 5B(2) CLA the probability that the harm would occur was reasonably high given the amount of foot traffic which had apparently created the track in the grass parallel to the Caesarstone steps. The consequences of a slip and fall could be serious and the cost of taking remedial action was modest.
Although causation was raised in the grounds of appeal, it was not an issue in oral argument and it was based upon his Honour's mistaken finding that the fall had been precipitated by a trip rather than by a slip. In any event, the evidence was overwhelmingly to the effect that if it were not for the extremely slippery nature of Caesarstone when wet, the respondent would not have fallen.
It follows that the appellant has failed to establish that his Honour erred in finding that he was negligent and that his negligence caused the respondent's injuries. The grounds of appeal challenging that finding should be dismissed.
Ground 7 - The trial judge erred in failing to find that the plaintiff was guilty of contributory negligence.
His Honour's findings on the issue of contributory negligence were:
"In my opinion she was exercising care for her safety and was choosing not to walk on the path at all because she did not think it was safe." (Red 31X)
"The fact that her foot struck a corner of the first tile was mere inadvertence on her part." (Red 32P)
"Since the plaintiff was taking reasonable care to avoid injury I find no contributory negligence against her." (Red 33E)
Having reviewed the evidence of the respondent as to how she came to fall, I have concluded that his Honour erred in finding that there was no contributory negligence on the part of the respondent. The evidence made it clear that although the respondent was well aware of the slippery nature of the Caesarstone steps and intended to avoid treading upon them, she did not do so. The strong inference is that she was not paying adequate attention to where she was placing her feet. Her failure to take reasonable care for her own safety went beyond mere inadvertence. It cannot be explained by a lack of visibility. When that issue was raised with the respondent, she did not adopt it (Black 37J, 37U).
The evidence relevant to the respondent's understanding of what caused her to fall is as follows:
"Q. When you exited on 24 October 2010 I take it you were conscious of the steps in front of you? Were you?
A. I would say I would be subconscious, not like - I didn't walk out the front door and think "Oh, steps are there."" (Black 36M)
"Q. And where were you intending - what path were you intending to take?
A. The grass.
Q. Why was that?
A. Because it's the - it was the safest route, it was the route I always took.
Q. And were you in a hurry?
A. No.
…
Q. All right, and were you watching where you were going?
A. I thought I was.
Q. Did something happen to you?
A. To be honest, I just inadvertently took one step too many. I think that being inside with my friend and, you know, it's a little upsetting when somebody is passing.
…
Q. You've mentioned that - sorry, let me ask, what actually happened? What foot went where?
A. It happened so very fast, it was a split second. I believe my left foot went on the corner of that first tile and I just went sssshhhh towards the grass." (Black 37C - G, 37M, 37X-Y)
"Q. That noise you just made, could you describe it in words do you think?
A. I put a foot down and I just slid out in that direction.
Q. Now, you're pointing with your hands in a forward motion, do you -
A. Sideways motion because I was walking off to the left.
Q. Right, what foot did you feel slip?
A. My left one." (Black 38C - E)
"Q. I think I may have asked you before lunch, quite awhile before lunch, had you ever walked down the stairs before your fall?
A. I never walk on those steps, I always walk off the grass.
Q. As you were walking down the pavers to get to the grass pathway off
to your left, were you watching where you were going?
A. I would presume so. I was just naturally just walking home." (Black 44L-O)
"Q. As you were leaving the premises, it was your intention not to step on these tiles?
A. Yes.
Q. You walked down the paved area depicted in Exhibit P1, correct?
A. Yes.
Q. And then as you gave evidence yesterday, you went to step onto the grass area?
A. Yes.
Q. Is it correct then that you put your foot in a position that you did not want to put it?
A. Yes.
Q. Your experience of life walking has included walking on wet surfaces, has it not?
A. Yes.
Q. And you know that when one walks on wet surfaces they can become slippery because of water?
A. Yes.
Q. And in fact if there is heavy rain, they can become slippery because there might be greater moisture on there than expected?
A. Yes.
Q. You chose to put your foot on the grass, as I say, not on a tile?
A. Yes.
Q. You knew that there would be potentially water on the tile if you stepped on it?
A. Yes but at the time I wasn't thinking about the tiles, I just walking home, it was just an overstep." (Black 115Q - 116I)
"Q. In any event, you didn't want to step on the hard tiled area when you were leaving Mr Stenning's house?
A. No.
Q. Would you accept that it was a mistake by you as to where you placed your foot that caused you to fall?
A. I think it was just an inadvertent overstep.
Q. But would you accept that it was a mistake by you -
A. Yes.
Q. - where you put your foot, correct?
A. I've taken one step too many. Yes, it's a mistake.
Q. Did you look at the tiles as you were leaving?
A. I can't honestly say to you I was looking down to the ground the whole time I was walking, I just was walking my natural path home." (Black 117G - N)
"Q. Is it correct to assume that you knew the surfaces of the tiles were wet?
A. Yes.
Q. Did you see in fact that they were wet?
A. As I said before, I wasn't looking down to the ground. It was raining. I was looking out straight in front of me to walk home." (Black 117S - U)
"Q. If you had been careful and looked where you put your feet, you would not have put it on the tile?
A. I never intentionally put my foot on the tile.
Q. Because as you left it was obvious to you that there was potentially a slippery surface because of the rain?
A. That's why I headed off to the left so I would avoid the tiles.
Q. You also knew that when there was water on hard surfaces, you needed to take extra care?
A. Yes.
Q. And did you in fact take extra care as to where you placed your foot?
A. I think I took the care that I would normally take when I was walking out of Bob's and just walked down so far and veer off to the left.
Q. If I could perhaps ask you directly?
A. I don't think I deliberately walked out there and thought it's pouring down rain, there's lots of rain, water on the stairs, there's lots of it here, I won't walk down those stairs 'cos it was never my intention to walk down those stairs. This is a freak accident.
Q. Would it be correct to say that when you left these premises, you didn't use any extra care in placing your feet as you left?
A. No, I took my normal route home the same way I would go home." (Black 117Y - 118M)
It is clear from those responses that the respondent failed to take reasonable care for her own safety in making sure that she did not tread upon the wet surface of the Caesarstone, which she knew to be slippery and dangerous.
I do not, however, include in my finding of contributory negligence that the applicant failed to use the handrail on the right side of the path. She was intending to diverge to the left of the path when she reached the end of the brick pavers. She was right handed and carrying the umbrella in that hand. That combination did not make it unreasonable for her to walk towards the left side of the path away from where the handrail was located. Even if she had used the handrail, she would have needed to let it go before she reached the first of the Caesarstone steps to enable her to step off the path onto the grass to the left. In doing so, she may still have inadvertently stepped on the Caesarstone surface. The handrail would not have prevented her fall in those circumstances because she would have already let go of it.
It remains to apportion responsibility for the respondent's injuries between her and the appellant. In the CLA that exercise is not without its difficulties. These were identified by Beazley P (with whom Barrett and Gleeson JJA agreed) in Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 where her Honour said:
"161 The effect of s 5R therefore is to require the court, in determining whether a person is contributorily negligent, to apply the provisions of s 5B and s 5C, being the statutory provisions applicable to determining breach. There may be a question whether any aspect of the common law continues to apply to the determination. However, that question does not need to be determined in this case.
162 As has been remarked in various cases in this Court, there is a conceptual difficulty in applying the general principles identified in ss 5B and 5C to the determination of contributory negligence: the question of breach is directed to whether a person has breached a duty owed to another person; contributory negligence, however, requires a determination whether a person has taken reasonable care for the person's own safety. Once this difference in the fact finding task is recognised, the manner of application of s 5B becomes apparent. Consideration is required to be given to the statutory prescriptions in s 5B. In doing so, it is to be borne in mind that s 5B(2) is not limited to the factors identified in s 5B(2)(a)-(d) and that pursuant to s 5R(2), the standard of care is that of a reasonable person in the position of the plaintiff and the matter is to be determined on the basis of what the person knew. Once a finding of contributory negligence has been made, the Motor Accidents Compensation Act, s 38(3) requires the court to reduce the damages recoverable "by such percentage as the court thinks just and equitable in the circumstances of the case"."
Although this is not a matter involving the Motor Accidents Compensation Act 1999, s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 applies which expresses the test in similar terms:
"9(1) …
(b) The damages recoverable in respect of the wrong are to be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage."
It was the appellant who created the dangerous situation by constructing steps from Caesarstone which was acknowledged in the trial to be completely unsuitable for such a purpose. Even when the appellant became aware of how dangerous the steps were by slipping himself, he did not adequately respond to the risk of harm. Not only did he allow visitors to continue to use the path, but they were given no choice after he blocked the side entrance with fire wood.
It is clear from that analysis that the appellant made a significant contribution to the occurrence of this accident. It is also clear that because he had actual knowledge of the risk of harm but did not adequately respond to it, his moral culpability was high.
In contrast, the contribution by the respondent to the occurrence of the accident was much less. She played no part in bringing about the dangerous situation created by the Caesarstone steps. Her failure to take care consisted of being careless as to where she placed her foot in circumstances where she was aware of the danger. When one has regard to the conditions at the time, i.e. the approach of darkness with heavy rain, her contribution to the accident was much less than that of the appellant. I would apportion liability as to 85% against the appellant and 15% against the respondent.
Future assistance
The following grounds of appeal are relevant to this issue.
Ground 9 - The trial judge erred in failing to have regard to s 15 of the Civil Liability Act in his assessment of damages for care.
Ground 10 - The trial judge erred in failing to have regard to all of the expert evidence on the issue of care.
Ground 11 - The trial judge erred in simply awarding the plaintiff the sum referred to in the plaintiff's occupational therapy report, i.e. $430,156.67 (less 10% discount on account of the possibility of the plaintiff moving to a smaller house) without proper analysis or giving reasons as to the basis of the assessment.
Ground 12 - The trial judge erred in failing to have regard to the evidence of Dr Maxwell and the evidence of the plaintiff in assessing care.
Ground 13 - The trial judge erred in his allowance for past care.
In order to understand the submissions, it is necessary to summarise briefly the injuries suffered by the respondent and her continuing disability. I have based this summary on the medical evidence, which was accepted by his Honour, and on his Honour's specific findings as to the capacity of the respondent.
The respondent was born in December 1956, left school after obtaining her intermediate certificate and worked as a secretary. She married her first husband in 1977 and had three daughters with him. They were divorced in 1985.
She married her present husband in 1988 and in 1994 they had a son, Stephen. He died in 2001 of a meningococcal infection. This caused the respondent immense grief and ultimately she and her husband set up a Foundation named after their son, aimed at ensuring that every child in Australia was inoculated against this disease. She was and is the driving force behind this Foundation.
In 1980 the respondent had a car accident in which she injured her back. That injury does not appear to have produced any significant consequences. She underwent a left knee patellectomy in about 1996. She underwent a left total knee replacement, at the hands of Dr Dixon in 2002. Despite these problems with her left knee, the respondent was very active before the accident. She enjoyed cooking and did all the housework. In 2005 she and her husband moved to their present home which was a large bungalow residence constructed on a five-acre site. She was responsible for clearing the site and establishing gardens and orchards, rose beds and hedges. Her husband was a busy lawyer, who was not able to assist in these matters, although he was home on weekends. The respondent mowed the five acres of lawn on a ride-on mower, looked after her husband and from time to time looked after four of their five children and some grandchildren.
As a result of this accident, the respondent suffered a fracture of her left wrist, damaged her left knee and loosened significantly the knee reconstruction. In December 2011 a Revision Left Total Knee Replacement with a bone graft was carried out by Dr Patterson. This operation was not entirely successful and in February 2013, her left knee was revised again with a new prosthesis placed into position.
From a psychiatric point of view, the respondent became severely depressed following the death of her son and was treated for depression for two and a half years. She became quite depressed following this fall when she realised that she could not do what she had been able to do before being injured. By the time of the trial, however, this episode of depression had largely resolved.
The respondent had resumed using the ride-on lawn mower, but it took her longer than previously because she had to mow the lawns in stages and then had to stop. This was because the vibration caused her injured leg to become painful.
When doing work in the garden, the respondent took a stick or branch to give her steadiness, or she would lean on the arm of her husband or one of her children. The respondent found it difficult to stand for any length of time and still cannot kneel. She is unable to do very heavy work and cannot climb ladders. His Honour concluded (Red 40Q) that the respondent's condition had now plateaued and that she would not experience further improvement.
His Honour found that the respondent could no longer do heavy cleaning work and that she could not do any significant gardening work around the property.
In relation to future assistance, his Honour found as follows:
"75 I have considered the reports of the two occupational therapists and the orthopaedic reports.
…
79 There is a major dispute as to the need for future provision being made for cleaning, gardening and outdoor maintenance. Ms Hammond, basing much of what she recommends on the opinion of Dr Maxwell, says an allowance should be made of $5900 and the defendant adds a further $10,000.
80 Dr Maxwell is of the opinion that the plaintiff will fully recover and get back to her pre accident state. I do not accept this. I consider that his opinion in this regard is not correct.
…
83 … If I accept what she says, she has permanent disabilities. I cannot accept what Dr Maxwell says, because her evidence is contradictory to what he says.
…
86 I accept Miss Flanagan's opinion about her need for provision of future domestic assistance, gardening assistance, outdoor maintenance, gutter clearing, but not including car washing, since there is no evidence that this was done on any regular basis by the plaintiff. The figures provided by her add up to $430,156.67.
87 I have decided to discount that by 10% because there must be a
very real chance that the plaintiff will leave this house before she dies and move to a smaller and more manageable house. The sum I will award to her under this head will be $387,141.00."
One of the challenges to his Honour's assessment of the damages to be awarded to the respondent for future care, is that there was no "proper analysis or giving of reasons as to the basis of the assessment". This criticism has been made out. It was not sufficient for his Honour to simply reject out of hand the report of the occupational therapist, Ms Hammond, and to accept with one small exception the assessment of the respondent's occupational therapist, Ms Flanagan. It was necessary for his Honour to do more by way of analysis of the conflicting opinions to justify the finding which he made. Such an analysis did not need to be lengthy, but there did need to be a better consideration of the competing points of view in the experts' reports under consideration than occurred here.
This issue was comprehensively examined by Ipp JA (with whom Bryson JA and Stein AJA agreed) in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127 where his Honour said:
"56 A miscarriage of justice can arise where what is and is not disclosed in a judge's reasons is a breach of the principle that justice must not only be done but must be seen to be done: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431 (per Mason P). …
…
58 In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 which was followed in Moylan v The Nutrasweet Company [2000] NSWCA 337, Henry LJ said (at 381-382) in regard to the general duty of a judge to give reasons for his or her decision (particularly in relation to expert evidence):
"The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know … whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not."
…
61 But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.
62 In Moylan, Sheller JA (with whom Beazley JA and Giles JA agreed) referred to and adopted much of the reasoning of Henry LJ in Flannery. His Honour quoted the following remarks of Henry LJ (reported in Flannery at 381-382) with approval:
"It is not a useful task to attempt to make absolute rules as to the requirement for the judge to give reasons. This is because issues are so infinitely various. For instance, when the court, in a case without documents depending on eye witness accounts is faced with two irreconcilable accounts, there may be little to say other than that the witnesses for one side were more credible … But with expert evidence: See Bingham LJ in Eckersley v Binnie (1988) 18 Con LR 1, 77-78:
"In resolving conflicts of expert evidence, the judge remains the judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal, unless it can be discounted for other good reasons …'"
And:
"… [w]here the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. …"
63 Sheller JA (at [64]) criticised the trial judge in Moylan for deciding the case virtually solely on the strength of the following remarks:
"I have had the advantage not only of hearing the various witnesses give evidence but also of seeing the way in which they have reacted to the questions that they were asked. Having done so, I prefer the expert evidence that was given for the defendants to that which was given for the plaintiffs."
64 In Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321, in a judgment with which both Meagher and Beazley JJA agreed, Sheller JA again referred to Flannery and Eckersley v Binnie with approval and applied what had been said in those cases. In Archibald v Byron Shire Council (2003) 129 LGERA 311 Sheller JA (with whom Beazley JA agreed) adopted the same approach. His Honour said (at 323, [54]):
"Where a dispute, such as this one, involves something in the nature of an intellectual exchange with reasons and analysis advanced on either side, the parties are entitled to have the judge enter into the issues canvassed before the court and to an explanation by the judge as to why the judge prefers one case over the other. This is particularly so where there is disputed expert evidence. In the present case, the parties were entitled to be told if Dr Button's estimates were to be accepted, on what basis they were to be accepted, in preference to those of Mr Loomes and Mr Thompson. This had to be done if the court was properly to perform the duty of stating with certainty the extent to which the respondent was entitled to rely upon continued use."
See also Papadopoulos v New South Wales Insurance Ministerial Corporation [1999] NSWCA 116 at [17]."
Since Ground 11 has been made out, and since neither occupational therapist gave evidence, this Court is in as good a position as the trial judge to assess what are appropriate damages for future assistance for the respondent.
The recommendations by Ms Flanagan are set out at Blue 81D - M. The challenge to those figures by Ms Hammond is set out at Blue 188. There is agreement between the two occupational therapists as to the assistance which the respondent needs for house cleaning, i.e. 4.23 hours per week. That was generally conceded in the appeal. What was challenged by the appellant was the hourly rate of $40.40.
The basis of the appellant's challenge was the evidence of the respondent that she had been receiving assistance in house cleaning at the rate of 3½ hours per week, up to the time of trial, and had been paying $70 in total for that assistance. The appellant submitted that a figure of $70 for 3½ hours would more accurately represent the cost to the respondent of such assistance in the future.
I do not agree. It is clear from the respondent's evidence that she was unhappy with the standard of the cleaning which was provided. That may well be an explanation for why the respondent has been paying a significantly lower amount than the commercial hourly rate put forward by Ms Flanagan and Ms Hammond. There is another consideration. While the respondent has been able to obtain cleaning assistance for $70 for 3½ hours at the present time, that may not continue indefinitely. If the cleaner presently providing assistance were to cease working for her, the respondent would be obliged to pay the commercial hourly rate identified by Ms Flanagan. Accordingly, even if a figure of $70 for 3½ hours cleaning assistance were accepted, there would have to be a further amount added to allow for the very real chance that a cleaner charging such a low rate might no longer be available and that the respondent would have to pay the higher commercial rate.
Taking those matters into account, and having particular regard to the respondent's evident dissatisfaction with the standard of cleaning assistance which she has been receiving, I am of the opinion that the prescription by Ms Flanagan of 4.23 hours per week, at a rate of $40.40 per hour is reasonable and should be allowed in the respondent's favour.
There was an issue between Ms Flanagan and Ms Hammond in relation to shopping. Ms Flanagan included in her figures 2 hours per week for the next 29 years for assistance when shopping. Ms Hammond did not make any allowance for this on the basis that the respondent currently shared the shopping with her husband, and that this was a reasonable contribution from him. There was evidence that the respondent's husband does assist with the shopping and that he is at home on weekends and therefore available to assist. Shopping is a somewhat personal activity and most people would prefer to choose their purchases, rather than have somebody else do it for them. I accept the analysis of Ms Hammond and reject the assessment of Ms Flanagan of 2 hours per week assistance for shopping.
Ms Flanagan allowed for window cleaning four times per year, at a weekly rate of $38.36. This is clearly a task beyond the respondent and should be allowed in her favour. Ms Hammond supported that recommendation although she would allow assistance twice a year. I prefer the approach of Ms Flanagan which is in accord with the respondent's wishes.
Ms Flanagan calculated the respondent's need for outdoor maintenance (gardening, pruning, weeding, chopping trees/branches; lawn mowing and cleaning guttering) at 4.72 hours per week. Clearly, the respondent can do some lawn mowing, but the other activities are beyond her. It is also reasonable that she receive some assistance with lawn mowing as well, given that she has to rest when her leg becomes painful and performs this activity more slowly. I would allow 4 hours per week of assistance under this heading.
His Honour deducted 10% from the total figure put forward by Ms Flanagan on the basis that the respondent and her husband might, as they get older, move to a smaller house and property which required less maintenance. While there was no evidence to that effect, that is a reasonable matter to take into account. Even if it were not, there would need to be some adjustment to allow for vicissitudes. With a life expectancy of 29 years, the ability of the respondent to engage in her pre-accident activities to the same level would inevitably be reduced as she became older. Accordingly, I agree with his Honour that a 10% deduction for vicissitudes is reasonable.
In summary, the allowance I make for future care is as follows:
House cleaning, including spring cleaning $170.89 per week
Window cleaning $38.36 per week
Outdoor maintenance $181.84 per week
Total $391.09 per week
[3]
Using a multiplier for 29 years of 809.6, less 10% for vicissitudes, I would award damages for future care in the amount of $284,963.81.
This means that the damages to which the respondent is entitled before the deduction for contributory negligence are:
Future care $ 284,963.81
Past domestic assistance and wheelchair hire $ 22,565.00
Past out of pocket expenses $ 103,053.88
Future medical expenses $ 2,880.00
Home aids $ 1,470.00
Non-economic loss $ 220,000.00
Total $ 634,932.69
[4]
After adjusting for contributory negligence, the verdict is $539,692.78.
Costs
The appellant has achieved some success in this matter in that he has obtained a finding of contributory negligence against the respondent and the damages awarded in her favour for future assistance have been reduced. Normally costs would follow the event and the appellant would be entitled to his costs of the appeal. In this case, however, three discrete issues were raised by the appellant which are readily separable. Moreover, the appellant spent a substantial amount of time in the appeal on the issue of primary liability. The appellant failed on this issue and had limited success on the other two issues.
Taking those matters into account, and subject to there being an application for a special costs order, I propose that no order for the costs of the appeal be made.
Orders
The orders which I propose are as follows:
1. The judgment entered in favour of the respondent on 22 September 2014 is set aside.
2. In lieu thereof, judgment is entered in favour of the respondent in the amount of $539,692.78.
3. Subject to any application for a special costs order, there be no order for the costs of the appeal.
GLEESON JA: I agree with Hoeben JA.
[5]
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Decision last updated: 27 July 2015