Drewes v Toowoomba Volleyball Association Inc [2008] QDC 1

DISTRICT COURT OF QUEENSLAND CITATION: Drewes v Toowoomba Volleyball Association Inc [2008] QDC 001 PARTIES: TRACEY LEA DREWES (Plaintiff) v TOOWOOMBA VOLLEYBALL ASSOCIATION INC (Defendant) FILE NO/S: Number 2225 of 2006 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court DELIVERED ON: 17 January 2008 DELIVERED AT: Brisbane HEARING DATE: 23-24 August 2007, 21 November 2007 JUDGE: Searles DCJ ORDER: Plaintiff’s Claim dismissed with costs CATCHWORDS: Occupier’s Liability, Volleyball Court COUNSEL: R. E. Myers for the plaintiff P. D. Lane for the defendant SOLICITORS: Shine Roche McGowan for the plaintiff Barry & Nilsson for the defendant [1] On Wednesday evening 6 March 2002 the plaintiff was warming up with fellow members of her volleyball team the Helitech Wipers at the Harris Town State High School gymnasium, South Street, Toowoomba. From the middle of 1995 the plaintiff had played in the business league of the defendant association which, on the night in question, was the occupier of the gymnasium. -- 1 of 31 -- 2 [2] In the course of that warming up the plaintiff came into contact with the wall of the gymnasium (offending wall) and suffered an injury to her left wrist. The question for determination is whether the plaintiff’s injuries resulted from any relevant want of care on the part of the defendant, and if so, what damages the plaintiff is entitled to recover against the defendant. What actually happened on Wednesday 6 March 2002? Plaintiff’s account of incident [3] The plaintiff’s team on the evening in question had scoring responsibilities in relation to games prior to the plaintiff’s, and the first game was due to start at 7:00 pm. The plaintiff said she arrived between ten minutes and five minutes to 7:00 pm, and took up her position with another scorer and seated herself at the scorers’ desk. She marked with an ‘x’ on Exhibit 5 the position of that desk, Exhibit 5 being a photograph of the subject western volleyball court near the offending wall, looking from the southern end.1 [4] The photograph Exhibit 5 shows three white lines, the middle of which is the divide line between two separate volleyball courts.2 The scorers’ desk was situated inline with the middle white line. [5] The plaintiff gave evidence that about five minutes before the end of the game she was assisting in scoring, one of the male players went for a high ball and as he dived down for the ball and hit it back, he slid along the ground outside the playing area, leaving a big sweat mark on the ground.3 The plaintiff described the dimensions of the sweat 1 Transcript page 35 line 50; page 145 line 20. 2 Transcript page 7 line 15. 3 Transcript page 9 line 10. -- 2 of 31 -- 3 mark as two feet by one foot.4 The photograph Exhibit 2 has a diamond shaped mark (described in the transcript as a square) by the plaintiff identifying the position of that sweat mark. An ‘x’ on that same photograph shows where the plaintiff said the scoring desk was located.5 [6] Once scoring duties were completed, the plaintiff commenced to warm up with other team members, including one Garry Watson who gave evidence. She said she was warming up on the far side of the court from the offending wall she was later to hit and, after doing stretches, she and the other team members were doing what is called digging and setting the ball to each other.6 [7] The plaintiff said that she had her back to the western offending wall and Garry Watson who was ahead of her (which I take to mean in front of her), hit a ball by digging it, causing it to go straight over the plaintiff’s head towards the wall. She said after it passed over her head it hit the ground and was bouncing along toward the wall. She then turned her position from having her back to the wall, and jogged towards the wall to pick up the ball. She said the ball was slowing down but was still in movement, that she wasn’t running flat out but basically in a very slow jog. She bent down to pick the ball up, with her left foot forward and right foot back. As she went to grab the ball she said she felt her left foot slide forward. At that point she was aware of the wall and immediately straightened her left arm, with her right hand almost touching the ball, and then collided with the wall. Not having time to straighten her right arm to share the impact, the left outstretched arm, and specifically her wrist, bore a sizable part of the impact. She said her main concern was not to hit her head on the wall. She slid down the wall a bit and ended up on her right knee with her left leg still straight out in front 4 Transcript page 9 line 50. 5 Transcript page 10 line 10. 6 Transcript page 10 line 45; page 57 line 50, and page 58 line 50 (descriptions of digging and setting). -- 3 of 31 -- 4 of her. The result was the injury to her left wrist she now complains of.7 She claims the slip resulted from the earlier mentioned sweat mark on the floor. Cross-examination of plaintiff [8] The plaintiff was subjected to intense cross-examination by Mr Lane, Counsel for the defendant. It is appropriate to deal with some of the issues the subject of that cross- examination. (a) Size of sweat mark [9] The plaintiff affirmed to Mr Lane that the size of the sweat mark was, as she said in her evidence in chief, two feet by one foot in dimension.8 Earlier Mr Lane had identified the fact that the plaintiff, in paragraph 14 of her 28 August 2002 Notice of Claim (Exhibit 1), given pursuant to the Personal Injuries Proceedings Act 2002, described the sweat mark as a “puddle of sweat”.9 He also relied upon Exhibit 4 being a letter from the plaintiff’s solicitors to the defendant’s solicitors dated 7 June 2004 where again the description “puddle of sweat” was used. In that letter the solicitors said that the puddle was approximately 6 inches in diameter and the plaintiff believed it was one to two millimetres in depth. [10] In the end I do not think it is of significance the dichotomy of language used to describe the pool of perspiration. In seeking to explain the difference of description used initially (puddle of sweat) and at the trial (sweat mark) the plaintiff, I thought sensibly, said that she wouldn’t call it a puddle because most people would have the connotation that a puddle is deep.10 That is true and some people on the other hand may regard it as a puddle whatever its depth, so its description is unimportant. The 7 Transcript page 10 line 50; page 11 lines 1-20. 8 Transcript page 31 line 5. 9 Transcript page 27 line 45. -- 4 of 31 -- 5 important matter to my mind is that, at the trial, the plaintiff’s evidence was that the size of the puddle / sweat mark was two feet by one foot, which is a significant area particularly given its proximity to the court playing area and considerably larger than the six inch diameter size described by her solicitors. The plaintiff said it was positioned half way between the wall and the white line shown in the photograph Exhibit 5, or even perhaps a little closer to the wall.11 The white line referred by the plaintiff is the middle white line in Exhibit 5. (b) Plaintiff’s location vis-à-vis the volleyball court when warming up [11] The plaintiff said in her evidence in chief that she and team members Garry Watson and one Marama were warming up on the far side of the court, away from the offending wall, which would be the opposite side to that part of the court shown in Exhibit 5 and that, when chasing the ball, she traversed literally the whole width of the court before getting to the puddle of sweat on which she says she slipped.12 Mr Watson marked Exhibit 14, being a diagram of the court, with an ‘x’ where he recalls the plaintiff being positioned when warming up, which position is closer to the offending wall than the far side of the court where the plaintiff said she was. [12] In cross-examination the plaintiff initially said that she and her other team members, when warming up, were not actually on the court itself but on the side of the court.13 She was then shown the last page of her Notice of Claim, Exhibit 3, which is a diagram depicting the position of herself and the others. [13] The plaintiff acknowledged that the encircled ‘x’ on that diagram depicted her position which, rather than being off the court, shows her on the court and closer to the wall 10 Transcript page 29 line 15. 11 Transcript page 43 line 5. 12 Transcript page 10 line 40; page 64 line 35. 13 Transcript page 49 line 45. -- 5 of 31 -- 6 opposite the offending wall than to the latter. The following was her evidence in explanation of the inconsistency:- “Q: So Ms Drewes, are you saying that when you and your team mates were warming up, they were not actually on the court itself? A: No. We were warming off – sort on the – like on the side of the court. Q: Ms Drewes, can you look at the Notice of Claim again please? And go to about the last page where there should be a diagram. That’s a diagram prepared by yourself? A: Yes. Q: That’s in your handwriting? A: No. Q: Well, was it a diagram prepared by yourself? A: No. I didn’t draw it. No. Q: Well, what do you mean then, who was prepared by yourself? A: I actually didn’t look at it, to tell you the truth. Its – I did not draw it and that’s not my handwriting. Q: Is it attached to your Notice of Claim? A: Yes. Q: You’ve seen it before? A: Yes. Q: And you submitted that as part of your Notice of Claim? A: Yes. Q: You submitted that as part of a document which you swore to be true and correct in every respect? A: Yes. Q: On there is an ‘x’ with a circle? A: Yes. Q: That’s depicting you, isn’t it? A: Yes. Q: And you are within the volleyball court, aren’t you? A: Yes. Q: There are two other x’s there, including one which has got Garry? A: Yes. -- 6 of 31 -- 7 Q: That is this Garry Watson you are referring to, is it? A: Yes. Q: He was warming up with you? A: Yes. Q: Mr Watson was on the court, as well, wasn’t he? A: On and off the court. We started warming up off the court.”14 [14] Shortly after that evidence Mr Lane suggested to the plaintiff that she had said she had been on the court line to which Mr Myers successfully objected, saying that the plaintiff had given no such evidence. Later the plaintiff said that she was “just sort of on – I was on the line – near the line of the court”, which I take to mean the sideline furthest from the offending wall.15 In another context, a sports person may refer to being on the line when referring to his or her role in marking the boundary line of a sporting field, and in that context standing near the line could adequately describe being “on the line”. That context however is not open to the plaintiff in this case. The issue the subject of Mr Lane’s questioning was quite specific to determine precisely where the plaintiff and her team members were warming up in relation to the boundaries of the court and the offending wall. At the end of the day, it doesn’t really matter whether the plaintiff was seeking to say she was physically on the line or only near the line because, either way, her evidence was that she was some distance away from her position depicted in the diagrams Exhibits 3 (diagram in her Notice of Claim) and 14 (Mr Watson’s diagram). [15] The extract of evidence set out above evidences an attempt on the part of the plaintiff to distance herself from the contents of her Notice of Claim particularly the diagram of her warm up position by attributing the diagram to someone else, presumably someone 14 Transcript page 49 line 45 to page 50 line 30. 15 Transcript page 63 line 50. -- 7 of 31 -- 8 in her solicitor’s office. If that was in any doubt, it was dispelled by the plaintiff’s answer to the opening questions of her Counsel Mr Myers on re-examination, namely:- “Q: Now, you were asked some questions about the Notice of Claim form that was submitted in relation to this matter? A: Yes. Q: I think you said specifically, and correct me if I’m wrong, that as far as the diagram was concerned, you – you weren’t the author of it? A: No. Q: That is, none of your writing on it? A: No. Q: I don’t know that you’ve referred to the actual forms. Were you responsible for any of the typewriting on the form? A: No. Q: Did you have any part to play in the – in the writing of the -? A: No. Q: …document ?” Although the answers to the questions may be strictly correct, taken alone they distance the plaintiff from her own document, even in the sense that she adopted it by signing it. [16] The plaintiff signed the Notice of Claim and no evidence was called on her behalf from the author of the diagram to seek to establish an error on the part of that author. In those circumstances I infer that no such evidence would have assisted the plaintiff’s case and that the diagram was drawn upon instructions from the plaintiff. Her attempt to resile from that responsibility reflects poorly on her. In any event I find that the diagram does not correctly identify the position of the plaintiff during the warming up session and prefer the evidence of Mr Watson as depicted in Exhibit 14 which places the plaintiff closer to the offending wall. I reject the plaintiff’s evidence to the contrary. -- 8 of 31 -- 9 (c) Existence of puddle / sweat mark [17] The plaintiff agreed that when she commenced her warm up she was aware that there was a two feet by one foot body of moisture (I shall henceforth refer to it as a puddle) on the ground just off the playing area. She conceded that from her experience of playing volleyball, players often run off or move off to the side of the courts, even while doing shots. However she sought to draw a distinction between a moisture hazard within the confines of the court and one off the court, saying that in relation to the latter she did not worry about them.16 She agreed she did not bring the puddle to the attention of its creator when he finished his game, and when asked why she did not bring it to the attention of the referee she said that “once the game’s finished the referee runs over, pretty much signs their book and they’re gone, you rarely get to speak to the referee”. [18] She couldn’t recall whether she brought the puddle to the attention of her fellow scorer, and said that she did not look over after the game finished some five minutes after the creation of the puddle, so that she could not say whether it was there when the game finished, and, by inference, when her warm up started.17 [19] The plaintiff conceded that she did not point out the presence of the puddle to anyone, neither her team mates, nor those who were about to warm up with her, and made no inquiry as to whether the puddle had been cleaned up prior to warming up. She conceded that she could not recall seeing the puddle again after first seeing it, and when asked whether common sense would have dictated that she did something about the puddle given that she was about to warm up for a game on the same court in close proximity to it, she said that would be the case only if the puddle was on the court. 16 Transcript page 38 line 50. 17 Transcript page 40 lines 5-35. -- 9 of 31 -- 10 When it was put to her that, at different times, she may run off the side of the court to dig the ball or to spike it or hit it back, she replied that she rarely actually played on the outside of the court, notwithstanding her earlier evidence that players sometimes play out of the court. Further, in answer to the very next question, she agreed that she had regularly seen people go off to the side of the court during the course of playing a point in volleyball. Notwithstanding that, she adhered to her position that she did not worry about spillages off the court because she concentrated on the court and not off the court.18 She also agreed that she, having seen the puddle, made no inquiries of anyone for a towel to clean it up.19 (d) Communication of existence of puddle post-incident [20] The plaintiff said that, after her incident, people came to assist her. Janelle Pullen was the first one, and although she couldn’t recall her team member Garry Watson coming over, she acknowledged that he would have. In fact, Watson’s evidence was that he did.20 She acknowledged that she did not point out to anyone the existence of the puddle or the remnants of the puddle, and did not make any mention of any puddle to any of them.21 Further she acknowledged that, subsequent to the incident she returned to the volleyball courts on a couple of occasions whilst her arm was still bandaged and spoke with Mrs Cheryl Norman, the duty manager on the night of the incident, but did not tell her that the injury had resulted from a puddle which she had fallen over.22 (e) Did plaintiff have hand towel on the night of the incident? [21] The plaintiff gave evidence that when attending volleyball she usually took with her a water bottle, car keys, a mobile phone and, depending on the weather, a hand towel for 18 Transcript page 45 lines 1-20. 19 Transcript page 49 lines 1-30. 20 Transcript page 145 line 1. 21 Transcript page 57 lines 15-45. -- 10 of 31 -- 11 her perspiration because, in her words, she sweated a lot.23 After admitting she had not raised the existence of the puddle with anyone, she said that she could not recall whether she had taken a hand towel on the night in question, but said it was possible. She agreed that she had not used any hand towel to wipe up the spillage, but then said “a towel doesn’t wipe it all up anyway”.24 She gave no further explanation of that statement, which seems to me to have been made to somehow justify why she had not taken steps to wipe the puddle from the floor, with her own towel or otherwise. Evidence of Mr Russell [22] Mr Russell was another volleyball player present on the evening of the incident but not associated with the plaintiff’s team. He was sitting on the concrete steps of court two, closest to the side of court three, where the plaintiff was warming up and near where the incident occurred. Those steps are depicted in the photograph Exhibit 6. Mr Russell said he was sitting a little to the left of the stairs shown in Exhibit 6,25 facing the adjoining court number two, but, just before the subject incident involving the plaintiff, he glanced over to see what was happening on the plaintiff’s court number three, which was to his left. He said the plaintiff was in about four metres from the offending wall, with her back to the wall.26 The evidence he gave as to what he saw was in these words:- “Q: Can you take your time and then tell the Court what you observed? A: Yep. Well I was just sitting with my team mates. I think we’d just finished a game – I’m not real sure on that – and I was at the top of those concrete steps. Now I was looking over – I glanced over to court three, just watching what was happening around on the courts and there was probably, I don’t know, six or seven people on that half of the court closest to me, warming up. Whether they were warming up 22 Transcript page 64 lines 50-60; page 65 lines 1-40. 23 Transcript page 36 line 45. 24 Transcript page 46 line 35. 25 Transcript page 118 line 15; page 119 line 5. 26 Transcript page 119 line 40. -- 11 of 31 -- 12 in groups of two or fours or whatever I’m not sure – I never pay attention to those details – but like – like, shortly after I glanced over, like within seconds, Tracey was on the wall side of that court with her back to it and a ball came from another fellow that was warming up pretty much parallel to the attack line, so parallel to the net, about three-odd metres off the net, and he hit it high over her head at which point she turned straight away to chase the ball with her hands outstretched like that, looking upwards, and she ran straight into the concrete wall. And as soon as she did that she just screamed straight away and just fell like in the photos. Q: And did fall onto the ground? – Yep. Q: Did you observe her slip in any way? A: No. She ran straight into that wall. Q: Did you observe her bend down in any way? A: No. Her arms were outstretched and she was running to catch the ball up high. Q: Did you observe her fall forward before she actually hit the wall? A: No. Q: Approximately how far away were you from her? A: A rough guess is 13-14 metres and I – I just used the volleyball court as a scale – its 9 metres wide. She was about – from the side of her court she was probably about a metre and a half – two metres in and then she steps here and there’s probably another four or five metres from court three edge to where I was sitting. So I was about 13-14 metres from where she was when she first went to chase the ball and probably another three or four to the wall again. Q: Did you observe other people then go over to her? A: Yep, yeah. I didn’t go over because as soon as she let out a big scream and she just fell to the floor the other people that were around this court were just back – they were just straight around her and I – I just stayed where I was. Q: Did you observe her before she hit the ball but from when she turned around looking around on the ground – looking around for some ball which was bouncing around slowly on the floor? A: No. Q: No. Did she do that? A: No. She was chasing the ball which was just hit over her head.”27 27 Transcript page 119 line 50; page 120 lines 1-50. -- 12 of 31 -- 13 [23] Later in his evidence this further exchange took place: “Q: I asked you whether Ms Drewes firstly slipped over before hitting the wall and you said ‘no’. Now are you sure about that? A: Yep. Q: And I’ve asked you whether you (sic) observed Miss Drewes bend down to pick up the ball before she hit the wall and you say that didn’t happen? A: No. Q: Are you sure about that? A: Yep.” 28 [24] Under cross-examination, Mr Russell adhered to his evidence in chief that he had seen the plaintiff run straight into the wall with her arms out.29 He also repeated that he did not see the plaintiff slip at all and that she just ran straight into the wall.30 Evidence of Garry Watson [25] Mr Watson, the plaintiff’s team mate warming up with her at the time of the incident, said that he and the plaintiff were on the western end court, the court identified by Mr Russell and on the southern side of the net, in the same vicinity described by Mr Russell. Mr Watson said, by reference to the diagram Exhibit 14, that the plaintiff was on the offending wall side of the court, facing him with her back towards the wall, he being in a position facing the wall. He said that he did not see any puddle of sweat or any liquid on the ground in front of the wall.31 [26] As to what Mr Watson saw he said:- “Q: OK. Can I take you then to what you were actually doing warming up, please? A: OK. Yes, prior to the game, we were practising setting and digging the ball to each other, which entails using both hands and sometimes digging the ball using your arms. We’d been practising for a few minutes. I dug a ball towards 28 Transcript page 121 lines 50-60; page 122 lines 1-5. 29 Transcript page 135 line 20. 30 Transcript page 135 line 55. 31 Transcript page 144 lines 10-30. -- 13 of 31 -- 14 Tracey which was going well over head. Right at that point in time, she was watching the ball. She turned and headed in the direction of the ball, which was heading in the direction of the wall. OK? I realised that she was not going to get the ball, so I turned at that moment to go and get another ball, which was off to the side of the court. By the time I got to the other volleyball, I heard a scream and a crunch. I turned around and then observed Tracey lying adjacent to the wall of the floor. Q: OK. Now, you say that she was looking at the ball. Can you just – to when she turned, what was she looking at then? A: She was watching the ball travel over her head. Q: OK. And when the ball was travelling over her head, did you observe what she was looking at? A: The ball. Or in the direction of the ball at least. Q: OK. And this was the same ball going over her head? A: Yes. This was the one that – yes.”32 [27] Mr Watson gave evidence that, after her fall, he went straight over to the plaintiff but did not observe anything on the floor which may have caused her to slip. He was asked whether he observed any liquid of any description on the ground, or any evidence or remnants of any liquid or puddle, but he said he did not.33 [28] Mr Myers submitted that the evidence of Mr Russell and Mr Watson were incompatible and that, for that reason, Mr Russell’s evidence should be rejected. I do not agree. On the important issue of the plaintiff facing upwards with her eye on a high ball as opposed to having her head down chasing a bouncing ball, the evidence of Mr Watson is consistent with that of Mr Russell, even though Mr Watson did not witness the plaintiff’s actual impact with the wall. Evidence of Mrs Cheryl Norman [29] As already stated Mrs Norman was the duty manager at the volleyball premises on the night in question. She went over to the plaintiff after she fell, and said that she did not 32 Transcript page 144 lines 35-55. 33 Transcript page 145 lines 5-10 and lines 45-50. -- 14 of 31 -- 15 observe any liquid on the floor and, significantly, when she spoke to the plaintiff the latter did not say anything to her about a puddle on the floor being to blame for her incident.34 Importantly, Mrs Norman saw the plaintiff a couple of weeks after the incident when the plaintiff came along to watch her team play. Consistent with what the plaintiff said, Mrs Norman said that the plaintiff did not on the occasion of those couple of visits ever say anything to Mrs Norman about any puddle on the floor being to blame for her incident. Mrs Norman said that she discussed the incident with the plaintiff and asked her what happened. She said the plaintiff did not seem sure what had happened, and just said “I think I tripped over” or “I ran into the wall, put my arm out to stop it”. Mrs Norman said she was very vague about how the incident had occurred, but there was never any mention of any “slipping on the floor water-wise”. She said the plaintiff told her she thought she may have tripped over her own feet or run (sic) into the wall and put her hand out to stop herself. Later Mrs Norman said the plaintiff said she had stumbled or tripped over her own feet, basically, and then went into the wall. 35 [30] Mrs Norman also gave evidence that she walked across the relevant volleyball court three on the night in question some 10 minutes before the commencement of the first game at 7:00 pm and did not observe any liquid on the court. Nor did anyone report to her about a puddle on the wall-side of the court.36 Evidence of ambulance officer Rod MacDonald [31] An ambulance officer, Mr MacDonald, attended the plaintiff after the incident and was with her for some 30 minutes. He observed that she was alert and orientated as to place 34 Transcript page 152 lines 20-50. 35 Transcript page 152 lines 45-60; page 153 lines 1-10; page 159 line 55; page 161 line 55. 36 Transcript page 153 line 50; page 154 line 20. -- 15 of 31 -- 16 and time.37 Exhibit 28 is a Queensland Ambulance Service report form completed by him on the evening. Importantly there is a notation on the second page in these words:- “Ran then tripped and lost balance. Collided with concrete wall with outstretched L arm”. I am satisfied that that notation was made from information provided by the plaintiff to Mr MacDonald during the time he was tending her. Mr MacDonald gave evidence that he could not recall any water or the like in the vicinity of where the plaintiff fell.38 Conclusion re cause of the incident [32] I have no hesitation in accepting the evidence of Mr Russell and Mr Watson as to how the incident occurred although, as I have earlier said, Mr Watson did not witness the actual collision with the wall. I am satisfied that the presence of a puddle / sweat mark / moisture on the court had nothing to do with the incident and that the plaintiff sustained her injury as a result of her own failure to arrest her momentum when chasing the overhead ball propelled by Mr Watson. Whether or not there ever existed any puddle as alleged by the plaintiff I am not called upon to decide given my finding as to its irrelevance to the cause of the incident. I note however that, had it been an issue which called for determination, the serious issue of whether the plaintiff contrived her account of how the incident occurred involving the puddle, or whether she simply had an imperfect recollection of events, would have had to be addressed. As I have said, that is not necessary given my finding. [33] Even absent the evidence of Mr Russell and Mr Watson however, I would have had real difficulty in accepting the plaintiff’s account of the incident and would not have done so. I say that for these reasons:- 37 Transcript page 214 line 5. 38 Transcript page 215 line 20. -- 16 of 31 -- 17 (a) No other witness, apart from the plaintiff, saw the puddle or had it brought to their attention by any other person on the night; (b) Notwithstanding, on the plaintiff’s account, the absolutely critical significance of the puddle as a cause of the incident, the plaintiff did not mention the puddle to any person either on the night of the incident or to Mrs Norman on subsequent occasions when she attended the volleyball courts when the incident and its cause were discussed; (c) The plaintiff’s evidence as to the size of the puddle, being two feet by one foot, is in conflict with the letter written by her solicitors dated 7 June 2004 (Exhibit 4), which gave the dimension of the puddle of sweat as six inches in diameter and one-two mm in depth. In the absence of any evidence to the contrary I proceed on the basis that that letter was written with the plaintiff’s instructions; (d) The plaintiff’s evidence at trial as to her positioning during warm up which was in clear conflict with Exhibit 14 being the diagram showing her to be on the court contrary to her evidence at trial. Again, in the absence of evidence to the contrary, I proceed on the basis that the diagram, Exhibit 14, was prepared upon instructions of the plaintiff; (e) The plaintiff’s attempt to distance herself from her own document, Exhibit 3 being her Notice of Claim in an endeavour to reconcile her evidence at trial with the content of that document, particularly the last page being the diagram which is Exhibit 14; (f) Her statement in paragraph 21 above to the effect that a towel would not have sufficed to wipe away the puddle; (g) What I view as a silly statement in paragraph 17 above as to why she did not notify the referee of the puddle; -- 17 of 31 -- 18 (h) Her evidence in paragraph 17 that she did not consider puddles situated out of the court as important even though she had given evidence that players move around outside the court during play; (i) Her statement in paragraph 19 that, whilst players played outside the court, she rarely did so. All of those matters collectively presented to me a witness of questionable credit prepared to craft her evidence to seek to shore up her version of events. Has there been a breach of duty by the defendant? The law [34] The obligations of an occupier of premises as the defendant was in this case were succinctly outlined by Mason J in Wyong Shire Council v Shirt39 where his Honour said:- “In deciding whether there has been a breach of duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of probability of its occurrence along with the expense difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position. The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. But, as we have seen, the existence of a foreseeable risk of injury does not in itself dispose of the question of breach of duty. The magnitude of the risk and its degree of probability remain to be considered with other relevant factors.” 39 (1979-1980) 146 CLR 40 at 47. -- 18 of 31 -- 19 [35] More recently, the High Court in Vairy v Wyong Shire Council40 cautioned against falling into error in focusing exclusively upon the way a particular injury came about when considering whether or not there has been a breach of duty. The Court said:-41 “The particular precision of investigations into what happened to the particular plaintiff cannot be permitted to obscure the nature of the questions that are presented in connection with an injury into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an incident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what a reasonable person, confronted with a reasonable risk of injury, would have made to that risk. And one of the possible answers to that inquire must be ‘nothing’.” [36] I am satisfied that the risk of injury to a volleyball player at the subject premises, whether in warming up or participating in a game, is a risk which could not be said to be far-fetched or fanciful so that it is, on the test of Mason J in Wyong Shire Council v Shirt above, a real and therefore foreseeable risk. But that is not the end of the matter. The next question to be decided is whether or not there has been a breach of duty on the part of the defendant. Plaintiff’s case on breach of duty [37] The plaintiff relies upon three bases to establish a breach of duty by the defendant, namely:- (a) That there should have been a system in place to ensure the playing surfaces and surrounding areas were free of contaminants; (b) There should have been a three metre free zone between the outer boundary of the court and the offending wall; and (c) The offending wall should have been padded. 40 (2005) 223 CLR 422 41 (2005) 223 CLR 422 at [124] per Hayne J and [60]-[61] per Gummow J. -- 19 of 31 -- 20 Given my finding as to the irrelevance of the alleged puddle, ground (a) need not be further considered. Three metre free zone [38] The offending court had a distance of 2.17 metres from the sideline to the offending wall. The plaintiff called Mr Justin O’Sullivan an ergonomist and safety consultant as an expert witness. His written report is to be found in pages 87 to 109 of Exhibit 1. He noted that in relation to international volleyball rules, as well as rules for Australia adopted from the international rules, there was a requirement that any wall or structure be at least three metres from the side boundary line of the court. The source of that statement was a document entitled ‘Volleyball Facilities Standards’ taken from the Queensland Volleyball website.42 That document is Attachment 2 to his report and it relevantly sets out five categories of volleyball competition and gives, beside each, the following sideline free space requirements:- Nature of volleyball competition Sideline free space Regional 3 metres State 3 metres National 3 metres International Friendly 5 metres International Championship 5 metres [39] From that he concluded in his report:- “Given the above, the court, on which Ms Drewes played, should be considered to have been too close to the court boundary, having inadequate free zone….”43 [40] Relying upon that conclusion of Mr O’Sullivan, and the uncontroversial fact that the defendant was affiliated with the Queensland Volleyball Association Incorporated, the plaintiff then relied on Object 2(e) of the constitution of that body to visit upon the 42 Exhibit 1 pages 97-98. -- 20 of 31 -- 21 defendant the obligation to provide a three metre free zone. That constitution is Exhibit 16 and Object 2(e) relevantly reads:- “The objects of the QVA shall be: (a) … (b) … (c) … (d) … (e) To ensure that all Volleyball competitions and organised activities, which involve registered members of the member associations or participants in QVA activities do not infringe the Australian Volleyball Federation or Federation International de Volleyball regulations. (f) … (g) … (h) … (i) … (j) …” Of course the breach of the Objects of the QVA constitution does not necessarily constitute a breach of the duty owed by the defendant to the plaintiff.44 But, that said, I am not persuaded there ever was such a breach of the constitution. [41] Mr O’Sullivan’s conclusion that the subject court should have contained a three metre free zone was predicated upon the volleyball competition, of which the plaintiff and her team were a part, being one of the five categories abovementioned, that is Regional, State, National, International Friendly or International Championship volleyball. There was no evidence to establish that. The QVA standard document does not deal with recreational volleyball. I accordingly reject Mr O’Sullivan’s conclusion that the defendant was in beach of QVA requirements in failing to provide a three metre free zone. [42] The point is perhaps exemplified if one turns to Exhibits 9 and 10 relied upon by the defendant. They are respectively a Queensland Department of Education manual of 43 Exhibit 1 page 97 second paragraph. 44 Rootes v Shelton (1967) 116 CLR 383 at 385 per Barwick CJ. -- 21 of 31 -- 22 July 1997 headed ‘Health and Safety HS – 10 – 112 – volleyball – risk assessment criteria – department policy, procedures, practices instructions and guidelines for use by schools centres and administrative offices’ (Exhibit 9) and a document headed ‘Sport Dimensions for Playing Areas re Volleyball’, which has the endorsement on the bottom of the governments of Western Australia, Commonwealth, ACT, Victoria, New South Wales, New Zealand, South Australia and Queensland. [43] Exhibit 10, which sets out the dimensions for sport playing areas, has three categories when dealing with the sideline clear space requirement of a volleyball court. Those categories are:- Competition Sideline clear space requirement Olympic / World championships 5 metres National / Club competition 3 metres Recreational 2 metres [44] Again there was no evidence placed before me to establish which of those categories the plaintiff’s competition fitted in to. It seems to me however that the most appropriate description of the competition in which the plaintiff was playing at the time is recreational. I say that for the following reasons. There was never any mention of a club but only a team name, and the ages of the plaintiff at the time of the incident, namely 38 years, and of the witness Russell who said he had been playing volleyball for 18 or 19 years.45 Further, when one reads the transcript of evidence of the witnesses Russell and Norman, Mr Lane for the defendant referred on no less than seven occasions to social recreational competition, social competition, social and recreational competition, and social or recreational competition, and it is clear all his questions proceeded on the basis that the competition under consideration and under examination of the witness was a social recreational competition.46 More importantly, 45 Transcript page 121 line 30. 46 Transcript page 121 lines 35, 40 and 52; page 141 lines 45 and 48; page 171 line 20. -- 22 of 31 -- 23 in the cross-examination by Mr Myers of Ms Fielding, when it was put to her that a two metre free zone was quite acceptable for schools, she replied “and recreational”.47 Further on Mr Myers sought to have her concede that Objective 2(e) of the QVA constitution referred to recreational games.48 I am satisfied that the plaintiff’s case proceeded on the basis that the competition in which the plaintiff was involved was recreational. As I have said there is no such category in Schedule 2 to Mr O’Sullivan’s report (Volleyball Facility Standards), so that the document does not deal with recreational volleyball. To complete the picture, I mention that Exhibit 9, being the Queensland government risk assessment criteria, also provides in paragraph 5.17 for a minimum space of two metres to surround each court, 0.17 metres less than the subject court. [45] Of course all of the above establishes only that the defendant was not in breach of any QVA or any other regulation in conducting volleyball on a court with a 2.17 metre free zone rather than three metres. It is not determinative of whether or not the defendant breached its duty to the plaintiff. [46] Ms Henderson, Volleyball Queensland’s development manager, gave evidence that the free zone for social volleyball competitions was between two and two and a half metres.49 Ms Fielding, the general manager of Volleyball Queensland, herself the current head coach of the Australian Women’s Volleyball team and an Australian volleyball representative, gave evidence that she had been involved in volleyball for 18 years and said that very few schools or centres within Queensland actually reached three metres in the side free zones, and that the average was about 2.5 metres with the zones sitting between 2 and 2.5 metres.50 As previously pointed out, in cross- 47 Transcript page 186 line 20. 48 Transcript page 189 lines 10-40. 49 Transcript page 180 line 55. 50 Transcript page 185 line 45. -- 23 of 31 -- 24 examination she told Mr Myers that two metres was, in her experience, acceptable for schools and recreational volleyball.51 [47] No evidence was advanced by the plaintiff in support of her argument that the 2.17 metre free zone represented a breach of the duty owed by the plaintiff apart from the documentary evidence I have dealt with above. I have already said the risk of the injury as happened was a foreseeable risk. Having regard to the test enunciated by Mason J in Wyong Shire Council v Shirt,52 I gauge the magnitude of the risk of injury resulting from a collision with the side wall of the court as moderate. As to whether that magnitude of risk is any different from a court with a three metre free zone, I am unable to say. In the absence of any evidence to that effect, I am not persuaded that the risk would be any different than with the three metre zone. [48] As to the degree of probability of the occurrence of the risk, again there was no evidence led on the issue. Mrs Norman for the defendant, said that throughout her 15 years associated with the defendant association she had never seen or heard of a person slipping and colliding with a wall giving injury.53 Although the question asked of her involved both slipping and colliding with a wall, I am satisfied that had Mrs Norman known of incidents of wall collisions which did not involve slippage she would have raised them. [49] Ms Henderson, the Queensland Volleyball Association development officer, gave evidence that the padding of such walls was not a high priority for the QVA in its risk assessment. Although that was said in the context of the issue of padding the walls, it is not inconsistent with a conclusion that the incidence of injuries from wall impacts generally was such as to not warrant padding. Were it otherwise, one would expect the 51 Transcript page 186 line 20. 52 (1979-1980) 146 CLR 40 at 47. 53 Transcript page 153 line 20. -- 24 of 31 -- 25 issue of wall padding would have a higher risk profile in the QVA’s risk assessment regime. [50] As to the expense, difficulty and inconvenience which would be involved to extend the free zone to three metres, again no evidence was led, but common sense would suggest that the problem could be addressed one of two ways. Firstly, by reducing the number of courts in the complex from three to two, or alternatively, undertaking a major renovation to extend the outer wall of the complex. In the absence of any evidence as to the cost and inconvenience of both alternatives, I can take the matter no further except to say that it would not be done free of cost and inconvenience. [51] As to the fourth and final issue identified by Mason J, namely any conflicting responsibilities the defendant may have, no evidence was led on this issue. [52] The plaintiff carries the onus of establishing a breach of duty. In my view she has not satisfied that onus and I find there was no breach of duty by the defendant in allowing the plaintiff to play on the subject court with a free zone of less than three metres. Absence of padding on court wall [53] The plaintiff alleges that the defendant breached its duty in failing to have padding along the length of the offending wall. On that issue Ms Henderson said that she had seen different volleyball courts at private schools, high schools, community centres and leisure centres throughout Queensland, but had not seen padding along the length of a side wall on any court.54 Under cross-examination she said that in her organisation’s risk assessments the padding of walls was not a priority. In her experience she said that in playing volleyball and knowing that there was a wall close to the court or near the 54 Transcript page 179 line 20. -- 25 of 31 -- 26 court, she had enough sense to know not to chase a ball to the wall or to avoid the wall.55 [54] Ms Fielding, the general manager of Volleyball Queensland, said that in 18 years of involvement with volleyball she had never seen the length of a side wall padded on an indoor volleyball court and was not aware of any indoor volleyball courts in Queensland with padding along the length of the wall.56 She took the view that putting pads on the entire wall was a higher risk in that players may then consider that it would be acceptable to hit the wall and to think that it was possibly safe to do so.57 The plaintiff relied upon Exhibit 13 which was a brochure detailing various padding fabrics of an unidentified manufacturer including wall padding. Apart from that however, there was no evidence led by the plaintiff to establish that the absence of wall padding amounted to a breach of duty by the defendant. I have in mind evidence from someone in the volleyball industry to show that padded walls had assisted in reducing the incidence of wall impact injuries. Again, such evidence would not be determinative of the issue, but would be of assistance to the Court. In the absence of any other evidence apart from Exhibit 13, I am not satisfied that the absence of padding on the walls amounted to a breach of duty owed by the defendant to the plaintiff. Conclusion The effect of the above is that the plaintiff has failed to establish her claim against the defendant and the claim is dismissed. On the issue of costs, subject to hearing argument and being persuaded to the contrary, I consider that the plaintiff should pay the defendant’s costs to be assessed. 55 Transcript page 189 line 15. 56 Transcript page 185 line 30. 57 Transcript page 188 line 10; page 190 line 10. -- 26 of 31 -- 27 Quantum [55] Lest my decision be later found to be wrong, I shall proceed to assess quantum. The following quantum items have been agreed between the parties:- Item Amount Pain, suffering and loss of amenities of life $35,000.00 Interest on past component thereof $1,915.00 Future economic loss $61,496.00 Future loss of employers’ contributions towards superannuation $5,534.64 Past care $27,375.20 Interest thereon $3,120.77 Special damages $11,768.35 Interest on the amount of special damages in respect of which the plaintiff has been out of pocket $1,257.98 Future expenses $7,110.00 TOTAL $154,577.94 [56] The items of past economic loss, interest thereon, past loss of contribution towards superannuation and future care are in dispute. Past economic loss [57] The plaintiff suffered a serious Colless fracture to the left wrist. At the time of the accident she was working as an APS3 – Administration Officer III with the defence department, stationed at Oakey Army Aviation Base, and had been employed by the department since January 1995. At the time of the incident she said that her position was that of the technical publications officer for Chinook helicopters.58 In that role she 58 Transcript page 14 line 50. -- 27 of 31 -- 28 was charged with maintaining and amending every manual relating to the Chinook helicopter, including flight manuals, repair manuals and troubleshooting manuals. She gave evidence that these manuals were quite large and stored in six folders of A3 size, each being two and half inches thick.59 The work also involved typing and the plaintiff’s keyboard speed at the time of the incident was 45 words per minute, reducing by the time of the trial to 35 words per minute.60 She resumed full-time duties on 9 April 2002, a little over a month after the incident. She remained until September 2003 but required assistance at work in handling the heavy manuals and spent most of her time, at least initially, typing with one hand.61 [58] She resigned about September 2003. In the 16 months or thereabouts from her return to work to that date, she found it increasingly difficult to deal with her duties. She said that the Chinook helicopters had been sent to a war zone, so that her hours of work increased from seven and a half hours a day to almost ten hours a day, which aggravated the pain in her arm. In cross-examination she agreed that she had told Dr Gillett, her doctor, that she had left her employment for “non-accident related reasons”, and admitted that she had left for her children.62 [59] She claims the sum of $45,000 under this item, calculated as follows:- (a) Income she would have received but for the accident and had she stayed with the department of defence: $122,388; (b) Less amount earned since resignation from the department of defence since September 2003: $30,764. Balance $91,624. She discounted that sum to reflect her residual earning capacity within the relevant period, and claims $45,000 for past economic loss. 59 Transcript page 15 line 5. 60 Transcript page 14 line 35. 61 Transcript page 69 line 10; page 15 line 15. 62 Transcript page 16 line 5; page 68 line 1. -- 28 of 31 -- 29 [60] The defendant accepts that the plaintiff was absent for work for 43 days, and calculates her loss based on her then average daily net wage at $4,118. The defendant denies any further entitlement to the plaintiff on the basis that her decision to leave work and not to work for some two and half years after she resigned from the defence department was not related to the incident but was driven by her family situation. She gave evidence that the increased work load when the Chinook helicopters were called into war service resulted in not only longer working hours as I have set out, but rather an increase in the pain in her wrist which she said she took out on her children.63 Whereas her deteriorating relationship with her children caused through her responses to the increased pain in her wrist may have been a proximate declared cause of her finally terminating her employment with the department of defence, she would never have been presented with that dilemma between her obligations to her children on the one hand and to her employer on the other, but for the incident. I am satisfied that the claim for $45,000 for past economic loss is reasonable. Interest on past economic loss after allowing for the receipt of benefits [61] The plaintiff received $42,876.29 by way of benefits which, when subtracted from the award I have made of $45,000, leaves $2,123.71. She claims interest at four per cent for four years, a total of $424.74 which I consider reasonable. Past loss of contributions towards superannuation [62] The plaintiff claims the loss of her employer’s contributions towards superannuation entitlements calculated at nine per cent of $45,000, total of $4,050 which I consider reasonable. 63 Transcript page 16 line 18. -- 29 of 31 -- 30 Future care [63] The plaintiff claims $59,975 future care, being calculated at the rate of $18 per hour for five hours per week over 20 years. She relies upon a report of Ms Susan de Campo of Lifecare Consultancy Pty Ltd, a consultancy family and relationship counselling and medico-legal assessment firm dated 11 December 2006.64 Ms Campo assessed the plaintiff’s weekly assistance requirements for both indoor and outdoor maintenance and assistance with her car at eight hours per week, reducing possibly to five hours per week on occasion. The plaintiff has claimed for the lesser figure of five hours per week. In evidence the plaintiff said that she cannot sweep her whole house, cannot mop the floor, and has had huge problems cleaning walls. She said she cannot hang clothes on the line because the action of pinching pegs together actually aggravates her injury. At times she said she had difficulties washing up and peeling vegetables.65 So far as outside is concerned, she said she “actually grew up a grease monkey” so was accustomed to carrying out work on her car such as changing the oil, coolant, oil filters, tyres and spark plugs. Now she says it takes a lot of effort and takes two hands to undo a lot of things and she is restricted in those activities. As to her outdoor chores, she said she cannot clean the gutters or maintain her yard or clear rubbish from around the house, which she was accustomed to doing prior to the incident.66 The plaintiff gave evidence that she still experiences constant though tolerable pain, and she has numb spots in her hand with ultra sensations from her index finger down almost to the point of the wrist, up against the knuckle and the thumb, and then along the base of the inside of the palm just above the wrist line. She said her biggest problem is if she over- uses her left hand she gets quite an ache. This has interfered with the driving of her 64 Exhibit 1 page 40. 65 Transcript page 20 line 10. 66 Transcript pages 18 and 19. -- 30 of 31 -- 31 motor vehicle. To deal with the pain she uses panadeine forte and says she buys a box of 24 tablets every six months. She also uses anti-inflammatory cream. [64] It seems to me that the plaintiff, some five years after the injury, still needs some assistance both inside and outside the home. The question is for how long that assistance will be required. Her claim is for a period of 20 years. I consider that the appropriate figure for future care is $35,000. [65] The total damages assessed will be:- Item Damage Pain, suffering and loss of amenities of life $35,000.00 Interest on past component thereof $1,915.00 Past economic loss $45,000.00 Interest thereon after allowing for the receipt of benefits $424.74 Past loss of contributions towards superannuation at nine per cent $4,050.00 Future economic loss $61,496.00 Future loss of employers’ contributions toward superannuation entitlements $5,534.64 Past care $27,375.20 Interest thereon $3,120.77 Future care $35,000.00 Special damages $11,768.35 Interest on the amount thereof in respect of which the plaintiff has been out of pocket $1,257.98 Future expenses $7,110.00 TOTAL $239,052.68 -- 31 of 31 --