Cavanagh v Palmwoods Auto Electrics & Ors [2000] QDC 291

DISTRICT COURT OF QUEENSLAND CITATION: Cavanagh v Palmwoods Auto Electrics and ORS [2000] QDC 291 PARTIES BASIL DESMOND CAVANAGH (First Plaintiff) BRONWYN SALLY CAVANAGH (Second Plaintiff) v PALMWOODS AUTO ELECTRICS (First Defendant) ROBERT MICHAEL HARRIS and HELEN MARIE HARRIS (Second Defendant) FILE NO.: Plaint No. 371 of 1997 DIVISION: Civil PROCEEDING: ORIGINATING COURT: DELIVERED ON: 22 September 2000 DELIVERED AT: Maroochydore HEARING DATE: 20 September 2000 JUDGE: J.M. Robertson DCJ ORDER: (1) Defendants to pay to the Plaintiff damages in the sum of $71,850. (2) The Defendants are to pay the Plaintiff’s costs of and incidental to the action, on the standard basis, to be agreed or assessed. CATCHWORDS: DAMAGES; PERSONAL INJURIES; BREACH OF DUTY; OCCUPIER’S DUTY OF CARE; liablity; “reasonably forseeable risk of injury”; customer injured in fall at premises owned/leased by defendants; direction by First Defendant; quantum; loss of amenities and enjoyment of life; past and future economic loss; contributory negligence CASES CITED IN JUDGMENT: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367 Wyong Shire Council v Shirt (1980) 146 CLR 40 Jaenke v Hinton [1995] QCA 484 (3 November 1995) Inverill Municipal Council v Pennington [1993] Aust. Torts Reports 81-234 COUNSEL: M. Taylor for the Plaintiff S. Connor for the First Defendant R. Alridge for the Second Defendant SOLICITORS: Alan Taylor and Associates for the Plaintiff -- 1 of 7 -- 2 McAlister and Cartmill for the First Defendant McInnes Wilson for the Second Defendant Introduction [1] The Plaintiff was seriously injured in a fall at premises owned by the Second Defendant, and partially leased by the First Defendant, on 25 October 1996. He was born on 12 November 1939. From the age of 19 up until the accident he was a truck driver. He had operated his own business for some years. The Facts [2] On the day of the accident, the Plaintiff brought his truck to the premises at 16 Margaret Street, Palmwoods, to have the First Defendant attend to some problems with the starting mechanism. It is common ground that the Second Defendant was the owner and occupier of the premises. They conducted a garage business at the premises, primarily in the upper level area; but including in an area described as “the pit”. This area, which is, in effect, a raised block platform, can be seen in exhibit 9. Above the pit area was a ramp area. Vehicles could be driven onto the ramp and then serviced from the pit area. I accept the evidence of a number of the witnesses that the approximate distance between the floor of the pit area and the upper ramp was 5’, however, there was between 6’and 6’6” head room for persons working on vehicles from beneath. The Second Defendant often stacked drums at the end of the pit area, in the manner depicted in exhibit 9. However, I accept the Plaintiff’s evidence that the area was clear of drums on the day of the accident. [3] It is common ground that the First Defendant occupied a part of the premises on the lower level for the operation of his auto-electric business. It occupied the lower workshop and a ramp area to the left of the pit area, as depicted in exhibit 9. The First Defendant also had a right to use the apron and gravel area in front of the ramp and pit area to enable customers of his business to park vehicles, see exhibit 14. The property to the right of the premises (see exhibit 14) was divided from the Second Defendant’s property by a block retaining wall. On the Second Defendant’s side the wall was only approximately knee high (see exhibit 14), whereas on the other side there was a drop of some 2 metres (see exhibit 2). The First Defendant had an oral agreement with the Second Defendant to occupy his part of the premises; and paid $100 per week for that purpose. [4] On the day of the accident, the Plaintiff, by prior arrangement with the First Defendant, parked his truck on the premises at approximately 7.30am. Another customer, Mr Thorley, arrived some short time later. There is a dispute on the evidence as to exactly where the Plaintiff parked his truck. He says he parked it nose in and slightly into the ramp area, whereas Mr Major (representing the First Defendant) and Mr Thorley say the truck was parked nose in, further to the right, with the front end approximately 2 metres out from the end wall of the pit area, and approximately 1 metre to the left of the knee high dividing wall. I agree with -- 2 of 7 -- 3 Mr Alridge that a resolution of this issue does not really matter in terms of the factual issues to be determined in relation to liability. There is no challenge at all to the truthfulness of any witness. The only issue is reliability, and, on this point, I think it is more probable than not that the truck was parked in the position stated by Mr Major and Mr Thorley. [5] Mr Major immediately began work on the truck. To enable him to work on the engine, the cabin area of the truck had to be moved forwards. Mr Major then entered the driver’s side of the cabin area and, I find, the driver’s door was opened by him to enable him to access the ignition system. The Plaintiff then observed that the door in that position was resting on the side mirror and he commented to Mr Major that it could break the mirror. The Plaintiff says that there was then a brief conversation between he and Mr Major. He says he said words to the effect: “That’ll have to be tied back”. The Plaintiff says that Mr Major then said words to the effect: “Get up there and tie it back”. The Plaintiff is certain these words were spoken. He was an honest and quite impressive witness. I find that Mr Major just does not recall this portion of the conversation. He says that he does not think that he had any such further conversation, but he fairly conceded in his evidence in chief that he really does not recall. I accept that he did say these words to the Plaintiff. I also find that Mr Major then retrieved a piece of rope from the toolbox in the truck and gave it to the Plaintiff. Mr Thorley, who was standing behind the Plaintiff’s truck, says that it was the Plaintiff who got the rope, however, he also says that the door, when opened, was, in effect, flush against the side of the cabin, which is not possible because of the position of the side mirror. I infer, therefore, that at the time Mr Major said these words, it is probable that he was still in the truck. [6] The Plaintiff then took the rope and proceeded to climb up onto the pit area in order to gain sufficient height to enable him to reach the top of the door and tie it back. I accept that he intended to tie the rope onto the top of the door and then descend and tie the door back to another part of the truck. To the right of the truck, very close to the dividing wall and up against the front wall of the pit area, was a drum which, I find, acted as a support for a downpipe from the roof above the ramp area. It was a 20 litre drum, up-ended and, I find, up against the block wall at the end of the pit area. Mr Alridge made submissions to the effect that I could find that, in fact, there were two drums, because the Plaintiff says nothing about the downpipe resting on the drum. As I observed during his address, to so find would be to descend into speculation. I find there was only one drum; the Plaintiff simply did not notice that the pipe was resting on it. Mr Major, who had worked there for years, gave this evidence. He also gave evidence that the downpipe, in effect, was not attached to the building and was leaning on the drum at an angle. [7] The Plaintiff says that he interpreted Mr Majors direction to “get up and tie it back”, as referring to only one possibility, and that was to get up onto the pit area. Mr Connor submits that no reasonable person would take the remark to mean that, but I disagree. The truck was parked quite close to the pit wall, and to the dividing wall. Mr Major must have understood that the Plaintiff would have to gain some elevation to enable him to reach the top of the open door. The 20 litre drum was in a position in which, I find, a reasonable person might assume it was a form of step. I accept Mr Major’s evidence that there are some steps up onto the pit area, these -- 3 of 7 -- 4 can be seen near the entrance door to his workshop, as depicted in exhibit 9. The steps appear to be narrow and roughly erected. The Plaintiff says he had not seen those steps until a few days prior to the trial when he took the photographic exhibits. The Plaintiff had been to that area on approximately 6 occasions over several years prior to 25 October 1996. On the basis of my factual findings, he was not in a position where he could see the steps when Mr Major gave him the direction. I accept the Plaintiff’s evidence that he did not know of the existence of the steps and that Mr Major certainly did not direct him to the steps. [8] There is some dispute as to what the Plaintiff then did. He says he grabbed the downpipe and stepped onto the drum, intending to step up onto the pit area. The downpipe then gave way and he fell head first over the dividing wall and onto the concrete apron of the adjoining property. Mr Alridge submits that I will find that the Plaintiff, in effect, attempted to use the pipe to lever himself up onto the pit area. The Plaintiff says he used it as a means of balancing himself and did not place much weight on it. He says, and I accept, that he was then an agile and fit man and he could have stepped up without placing too much weight on the downpipe. I have already referred to Mr Major’s evidence about the stability of the downpipe. Soon after the accident, the pipe was properly attached, extended and plumbed in. [9] No evidence was called on behalf of the Second Defendant. In such circumstances, the Court may, not must, draw an inference that the evidence would not have assisted the Second Defendant’s case: Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367. It is quite correct, as Mr Alridge submits, that Mr Harris did not witness any of the incident. However, he could, as the occupier and owner of the premises, have given evidence as to the state of the downpipe. In those circumstances, in relation to this aspect of the evidence, I draw the inference that his evidence would not have assisted his case. I accept Mr Major’s evidence that the downpipe was not properly attached to the building. I find that it is more probable than not that the Plaintiff did not exert much pressure on the downpipe at all; that it gave way as he stepped up and onto the drum; and that this caused him to fall to the right, over the short dividing wall and into the adjoining property. Mr Major candidly stated that he and Mr Harris had an understanding that customers would not be allowed onto the pit area, because it was potentially dangerous. I find that he was probably distracted momentarily by his work on the truck; that he gave the direction to the Plaintiff which reasonably caused the Plaintiff to attempt to get up onto the pit area. The Plaintiff, in turn, frankly admitted that he could have achieved the task by asking for a ladder, however, I accept that he was not able to reach the top of the door by climbing up into the cabin. The Plaintiff also said that he realised it was not a high wall close to the area where he was attempting his ascent and that he was aware of the substantial drop into the adjoining property. The Law [10] It is admitted by both defendants that they were the occupiers of the premises. I have referred earlier to the business arrangement between them. In the amended defence of the First Defendant, filed by leave at the start of the trial, it is admitted that the Plaintiff was invited onto the land for the reasons earlier discussed. It is -- 4 of 7 -- 5 accepted that both defendants, therefore, owed a duty of care to people such as the Plaintiff, to act so as to guard against “reasonably forseeable risk of injury”. The classic statement of the correct principle by Mason J (as His Honour then was) in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 48, applies here: “… … a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a forseeable risk. A risk which is not far-fetched or fanciful is real and therefore is forseeable. But, … .., the existence of a forseeable 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”. [11] In addressing the question whether a given situation creates a forseeable risk of injury, it is not legitimate to use hindsight: per Thomas J in Jaenke v Hinton [1995] QCA 484 (3 November 1995). In the same case, by reference to the judgment of Mahoney JA in Inverill Municipal Council v Pennington [1993] Aust. Torts Reports 81-234, Pincus JA concluded that the judgment of Mason J in Wyong (supra) establishes that a defendant does not have to go so far as to remove or neutralise any risk found to be forseeable and not so far-fetched or remote. It simply measures what the defendant is to do by the response of a reasonable person. The question for me, as Mr Alridge correctly submits, is whether reasonable occupiers, in the position of the defendants, would be expected to forsee that, in the circumstances as found to exist here, their conduct, as found, involved a risk of injury to a person in the position of the Plaintiff. Findings on Liability [12] I have concluded that, in the circumstances here, both defendants have breached their duty of care to the Plaintiff. The First Defendant knew that the pit area was potentially dangerous; and by giving the Plaintiff the direction to “get up and tie it off”, the First Defendant must have forseen that the Plaintiff would reasonably have understood this to mean to get up on the pit area. The Second Defendant breached its duty of care by causing a drum to be placed close to a dangerous drop, to support a poorly installed downpipe, in circumstances which a person attempting to climb onto the pit area could have seen the drum as a step; and by failing to properly fence the dividing wall to prevent people falling over. I find the defendants equally responsible for the resulting injuries to the Plaintiff. Contributory Negligence [13] The Plaintiff was aware of the drop. He did not check the downpipe before placing any weight on it. He was not in a hurry. There was no emergency. He accepted that he could have asked for a ladder, or even reversed the process and tied the door back with the cabin in place. For these reasons, I find that the Plaintiff has contributed to his own injuries by his own negligence. An appropriate proportion of the liability for the Plaintiff is 25 per cent. Quantum -- 5 of 7 -- 6 (a) Loss of amenities and enjoyment of life [14] The Plaintiff suffered a serious injury to his right hand and wrist in the fall. He also suffered a severe blow to his head, which affected his recall of events after he fell, but he claims no ill effects from the head injury. He suffered an inter-articular fracture of his distal radius and a dislocation of his right thumb. The wrist was manipulated and placed in a plaster cast at Nambour Hospital. Five days later, he had surgery to his wrist and thumb area. He had an external fixation of his fractured right wrist with a bone graft being taken from his right hip, and he underwent relocation and fixation of his right thumb interphalangeal joint. Eight weeks later he was readmitted to hospital for removal of the external fixation and cast. [15] The Plaintiff is right-hand dominant. He suffers discomfort within the hand with use and activity. He is unable to grip or form a right fist. Dr Winstanley’s report refers to the Plaintiff being unable to enjoy ten pin bowling, but there is no evidence to support that fact. The Plaintiff gave very little evidence of loss of amenities; he impressed me as a robust man embarrassed by his present disability. Dr Winstanley has provided two reports. He was not cross-examined. In his report dated 16 December 1997, he assesses the Plaintiff’s level of permanent disability at 15 per cent, which may increase to 25 per cent with the development of osteo- arthritic change. The Plaintiff was examined by Dr Boys on 8 December 1998 at the request of the solicitors for the Second Defendant, and his report bearing that date is in evidence. Dr Boys was not cross-examined. At that date, the Plaintiff’s condition had stabilised and was permanent. Dr Winstanley’s predictions proved to be accurate. Dr Boys opines that his impairment represents a 30 per cent impairment of the upper extremity, which may increase to 35 per cent in the future. I assess general damages under this head at $30,000. I will allow 2 per cent on $20,000 for 4 years a sum of $1,600. (b) Past and future economic loss [16] At the time of the accident, the Plaintiff was operating a trucking business in partnership with his wife. It was not a highly profitable business. The tax returns of the business for the years 1994-1996 are in evidence. It is generally accepted by all parties that the average weekly nett income for the business was $300. I adopt that figure for the purposes of these calculations. As a mathematical exercise, the Plaintiff has, therefore, lost income at that rate for the 4 years since the accident, less approximately $10,000 declared income in 1997, which produces a figure of $52,400. [17] I find that within six months, the Plaintiff was able to drive a bus or taxi and undertake such duties where heavy lifting or gripping was not involved. He is unable to grip or lift heavy weights, or tie chains or ropes, skills necessary to conduct your own transport business. However, he has not attempted to test the job market at all, despite his strong desire to return to the workforce. It is accepted by the defendants that his age would count heavily against him, however, the fact that he has not tried to obtain alternative employment, or, to use Mr Alridge’s -- 6 of 7 -- 7 terminology, not exercised his obvious residual working capacity, does require me to discount this figure quite significantly. Doing the best I can, I assess his past economic loss at $30,000. For assessment of interest, his social security receipts of $7,500 per annum, as agreed, is to be taken off, leaving a nil figure for interest. [18] I accept the Plaintiff’s evidence that he is, and was, otherwise a fit and healthy man. I accept he would have worked through to the age of 65. It is not a case which is amenable to precise mathematical calculation, and I intend to make a global assessment for future economic loss, discounted for the reasons set out in the above paragraph, and the normal contingencies of $30,000. [19] Specials are agreed at $2,396, and the gratuitous services component at $1,920. The Plaintiff also makes a modest claim for interest paid on a loan obtained partially for the purposes of purchasing his truck. He retained the truck for two years after the accident in the hope that he would be able to return to driving, but it was then sol. I will allow him a component for interest paid on the $12,000 purchase price of the truck, for two years at 18 per cent (rate paid), a sum of $1,480. The award is, therefore: General damages: $30,000 Past Economic Loss: $30,000 + Future Economic Loss: $30,000 + Specials: $ 2,396 + Interest on Truck Loan $ 1,480 + Griffith & Kirkmeyer: $ 1,920 + TOTAL: $95,796 (rounded off) $95,800 (Reduced by 25%) - $23,950 $71,850 The defendants are to be equally responsible for the judgment debt. Before making final orders, I will hear submissions on costs. -- 7 of 7 --