Chapman v Australian Postal Corporation [2000] QDC 5

IN THE DISTRICT COURT HELD AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Noreen Mary Chapman v. Australian Postal Corporation] Plaint No. 453 of 1998 BETWEEN: NOREEN MARY CHAPMAN Plaintiff AND: AUSTRALIAN POSTAL CORPORATION Defendant Reasons for judgment Delivered on the 10th day of February 2000. This was an action for damages for personal injury. The plaintiff said that on 8 January 1998, she entered the post office at Nambour to transact some business and was injured when she slipped and fell as she was leaving the post office. She said she slipped on the concrete surface of the ramp available for customers to ascend from and descend to the street below the post office. Her case was that the defendant was in breach of its duty to her both because of its negligence and its breach of statutory duty. As to negligence she alleged the surface of the ramp did not provide any adequate grip for persons walking upon it, it did not have a non-slip surface upon it; it had been allowed to become or remain slippery; it was not inspected or adequately inspected to ensure its surface was not slippery; the defendant failed to warn the plaintiff that the surface was slippery. Some other general allegations of negligence were pleaded but they take the matter no further. As to breach of statutory duty it was said to have occurred because the premises were a work place within the meaning of that term as defined in the Workplace Health and Safety Act 1995, the defendant was a person in control of that workplace and (in breach of section 30 of the Act) failed to ensure appropriate safe access to and from the premises for the plaintiff. -- 1 of 8 -- 2 In my view any breach of section 30 of the Workplace Health and Safety Act 1995 does not provide a private right of action for the plaintiff who as a customer had entered upon the premises of the post office. The provision is general in nature not a particular provision prescribing a “higher or even different duty… than obtained under the pre-existing general law”: Smith v. Macquarie Stevedoring Co Pty Ltd (1965) NSWLR 1558 at 1566 nor “a provision prescribing a specific precaution for the safety of others… ”: O’Connor v. SP Bray Ltd (1937) 56 CLR 464 at 478. See also Castle v. Weeks (1999) QCA 450 (5/11/99) I find that the plaintiff slipped and fell as she stepped from the level tiled floor at the exit of the post office on to the descending surface of the concrete ramp. She was wearing leather soled shoes. The leading foot she had placed on the concrete ramp, her right foot, slipped and she fell. Her right foot and leg struck the ramp together with her left buttock and left elbow, the latter having the effect of pushing her left shoulder up. She was helped up and went home feeling quite sore. She returned the next day and reported the fall to the postmaster, Mr O’Neill (O’Neill). O’Neill gave evidence. I accept his evidence. He confirmed that the plaintiff spoke to him the next day. His account of that meeting differed in content to the plaintiff’s account. I find that his account of what was said and done is the more accurate account of that occasion. The defendant owed a duty of care to the plaintiff. She was a customer in its post office and was using a means of access provided. Its duty was to take reasonable care and precaution to avoid foreseeable harm to her. The standard of care required to discharge the duty was that of a reasonable person in the defendant’s position in the light of all the circumstances of the case. The defendant was not an insurer. What was reasonable on its part depended on whether there was a foreseeable risk of a person slipping and then falling on the concrete ramp, the extent of that risk, the likely seriousness of consequences to such a person and the cost and practicability of avoiding or lessening the risk. Although there was evidence that O’Neill knew of no other person slipping on the ramp on any occasion over a reasonably lengthy period, the risk of someone slipping and then falling on the sloping ramp was not remote or fanciful. It was foreseeable: Wyong Shire Council v. Shirt (1979-1980) 146 CLR 40. Moreover as subsequent action has shown it was simple and inexpensive to apply a special non-slip coating to the ramp. I find that such a coating as was applied subsequently reduces the likelihood of a slip. That in itself however, is not sufficient for the plaintiff to succeed. She must also show that the extent of the risk of a person slipping and falling and the likely seriousness of the consequences of that event required, as a reasonable response, the sort of surface treatment which has subsequently been applied and that if done, she would probably not have fallen. -- 2 of 8 -- 3 Plainly a wide variety of persons may be expected to be customers at a post office. Customers may include people who, because of age or other infirmity, are uncertain in balance and step. Customers maybe expected to be wearing leather soled shoes. Typically such a shoe will provide a lesser coefficient of friction with a surface than other material, say rubber. The post office was built above street level. The street was a sloping street. To descend from the floor level of the post office to the street, the ramp was provided. So far as can be deduced from the photographic exhibits, the distance of the ramp from the level of the floor of the post office to the street footpath was in the order of 1.5 to 1.7 metres. The width of the ramp outside the exit was about 2.7 metres. Due to the sloping street its slope varied across its width. At its right hand side, exiting the post office and adjacent to a hand rail, the slope of the ramp was in the order of ten degrees. The slope decreased to the left side of the ramp. A point on its width where the plaintiff estimated in evidence she slipped was about 1.5 to 1.6 metres from the right hand side of the ramp near the hand rail. At this point the slope was probably in the order of eight degrees. The ramp was apparently originally constructed in the 1970’s with a roughened concrete surface. The evidence indicated it was used extensively. O’Neill who had been manager there for about two and a half years said that an average of 1100 people a day used the post office in January 1998, 90 per cent of whom used the ramp instead of a small set of stairs which was available. With that level of use it is a matter of common experience that surface wear would probably occur tending to smooth out parts of the concrete surface and expose aggregate which depending on its type may present either a smooth or angular surface. O’Neill in his evidence, said the ramp surface was “footpath style concrete… certainly a roughened sort of concrete”. He did not consider it had been worn smooth by the extensive pedestrian traffic although in the time he had worked at the post office, since August 1995, no upgrade or maintenance work had been done on the ramp. The evidence regarding maintenance or consideration of maintenance by the defendant was of a formal quarterly health and safety inspection process by staff of the premises. The level floor outside the post office to the upper edge of the ramp had been covered with non-slip tiles to address slipperiness in the wet about two and a half years before the plaintiff fell. I do not know what the surface was before the tiles were laid. Apparently nothing was done to the ramp surface. There was no evidence regarding the coefficient of friction provided by the level surface of the non-slip tiles. However there was evidence about the ramp from a Dr Coyle, in the plaintiff’s case and a Mr Iwanow, in the defendant’s case. Both of these persons had inspected the ramp some months after the plaintiff’s fall and after the non-slip surface coating had been applied. Dr Coyle proceeded on the basis that at the time the plaintiff slipped and fell the -- 3 of 8 -- 4 ramp surface had been worn smooth. Mr Iwanow proceeded on the basis that at the time the plaintiff fell the ramp surface was a rough concrete surface like usual footpath quality. There was general agreement between Dr Coyle and Mr Iwanow about the degree of slope on the ramp. I find that in the area where the plaintiff indicated in evidence she slipped on the ramp, its slope was in the order of eight to nine degrees. On a level surface, Dr Coyle considered a coefficient of friction of 0.5 desirable, with 0.4 – 0.5 being a transitional area. Mr Iwanow relied upon AS3661-1-1993 requiring a mean coefficient for both wet and dry surfaces to be not less than 0.4. On sloping surfaces it is necessary to increase the coefficients. On a ten degree slope, the minimum mean according to Mr Iwanow should be 0.62. Dr Coyle opined that on a wood floated level concrete surface which had been worn smooth, the dynamic coefficient would be likely to be in the order of 0.6 for a rubber soled shoe and 0.3 for a leather soled shoe. If the surface were rougher the coefficient would, of course, be greater. If the same surface were sloped, these coefficients reduce. For instance a coefficient on a level surface of 0.6 reduces to 0.45 on an eight degree slope. I accept this evidence of Dr Coyle. In light of the evidence about the usage of the ramp I find that there probably were areas of wear on the concrete surface of the ramp. There is an enhanced risk or tendency for the leading foot to slip in the transition step from a level surface to a descending slope. Coincidentally that was when the plaintiff slipped. O’Neill’s evidence about putting his foot on the ramp and attempting to make it slip I regard as of little value. It is unlikely to have been precisely where the plaintiff’s foot slipped, the soles of his shoes were not leather, nor was he in the process of stepping from the level non-slip tiles on to the ramp. As observed earlier the risk of a person slipping and falling was foreseeable. A wide variety of people may be expected to be entrants to a post office. No maintenance had apparently been applied to the ramp for a number of years. Given the extent of usage it was likely areas of wear existed which may reduce its frictional efficacy. Reducing the likelihood of that risk by applying non-slip coating was cheap and easy. As I understand it the cost is less that $1,000. On balance I am satisfied the defendant was in breach of its duty of care in not attending to the surface of the ramp to reduce the risk of a slip. There was no evidence the plaintiff did anything other than place her foot on the ramp in a normal manner. I infer on balance that had the defendant applied and maintained the non-slip coating it afterward applied to the ramp, the plaintiff would not have slipped over. There was a plea of contributory negligence. I am not satisfied it is made out. On the evidence I am not satisfied it is shown that the plaintiff was not keeping a proper lookout or walking at an unsafe speed. As for failing to use the handrail provided at the right and steepest side of the ramp exiting the post -- 4 of 8 -- 5 office firstly I am not satisfied the plaintiff stepped on to the ramp at that point. I think her estimate during her evidence about where she stepped onto the ramp was just that, a rough estimate where she was on the width. I think it unlikely she ever knew with any accuracy just where it was on the width of the ramp she was when she slipped. It is not something which would ordinarily be capable of being recalled with any accuracy in the circumstances. Consequently I do not think that any indication she gave to O’Neill can be particularly relied upon. Secondly the ramp was about 2.7 metres wide. Thus it invited people using it to use any part of that width. There was one handrail provided at its right hand (and steepest) end if exiting the post office. I do not regard failure to use the right hand end of the ramp and the handrail a failure to take reasonable care for her own safety in the circumstances. Damages The plaintiff was born on 30 August 1940. She was 57 when she fell. She is 59 now. Assessment of damages is complicated by the fact that the plaintiff had pre- existing health problems and pre-existing symptomatology. In June 1996, the plaintiff had an x-ray examination of her left shoulder after being referred by a Dr Clinton Herd. The history she provided indicated long standing neck and left shoulder pain, suggestive of rotator cuff syndrome. X- ray indicated some degenerative disease in her left shoulder. The plaintiff was involved in a motor vehicle accident on 23 December 1997. This resulted in neck and upper back pain. The plaintiff also has a relatively long standing cardiac condition which considerably limits her physical abilities. The plaintiff has been seen by orthopaedic surgeons Dr Pentis and by Dr Boys, for medico-legal purposes on 23 December 1998 and 1 July 1999 respectively. I find that as a result of the slip and fall at the post office the plaintiff aggravated her neck condition resulting from the motor vehicle accident. In addition she suffered some muscular injury to her right thigh, aggravated pre- existing capsular injury to her left shoulder and suffered a low back strain and an injury to her left hip, the latter resulting in a local bursitis in this area. I find also that with the exception of the local bursitis in her left hip, the other injuries or aggravations either abated or were subsumed in the plaintiff’s pre- existing condition within about six months or so. As to the local bursitis in the left hip the actual disability is not great. However it makes its limiting contribution to her overall physical condition. The plaintiff went to the Nambour Seven Day Medical Clinic on 10 January 1998 and related a history of the fall. She had tenderness to her right thigh and -- 5 of 8 -- 6 lower right leg and pain in her left shoulder. When she re-attended on 19 January 1998, she complained of pain in her upper left arm. Her neck was x- rayed. She returned again on 16 February 1998 and over the next five weeks continued to be treated. She attended at the clinic on 30 June 1998 and complained about her left arm which was diagnosed as inflammation of the tendon in her left shoulder. An ultrasound indicated a possible partial tear of the supra spinatus tendon. It is only necessary to assess damages for the following: Need for assistance The evidence regarding this was sparse. The plaintiff appears to be an independent person who prefers to do things for herself even though that may cause her discomfort. I accept her evidence about the discomfort she experiences in bed-making and working in her yard. The difficulty is in determining to what extent the fall, apart from the motor vehicle accident and her pre-existing condition is responsible for this. I accept her evidence about the limited number of occasions she was provided with transport to attend for treatment after the fall. I think it reasonable to assess an amount of $800.00 to satisfy the need for assistance attributable to the fall. That equates to three hours a week at an hourly rate of $10.00 for about six months. I assess interest in the sum of $32. Special Damages The evidence regarding this also was sparse. It involved the use of 'Panamax' to mitigate discomfort. It is not possible to form any reasonably precise view of the extent of usage attributable to symptoms due to the fall. I assess an amount of $30.00 for this. That is based upon usage at the rate the plaintiff spoke of in evidence for about six months and a lesser usage attributable to symptoms associated with the fall since then to trial. I will not assess any interest. General Damages Damages under this head take into account the plaintiff’s initial shock and discomfort from the fall. They take into account ongoing discomfort from the muscular injury to her right thigh, aggravation of the degenerative condition in her left shoulder and lower back and her neck discomfort from the motor vehicle accident on 23 December 1997 for about a six month period. They take into account the local bursitis in her left hip which continues and which requires some use of analgesics. I assess an amount of $8,000. Five thousand -- 6 of 8 -- 7 dollars ($5,000) of that relates to the period pre-trial. I assess interest in the sum of $200. I give judgment for the plaintiff against the defendant in the sum of $9,070. -- 7 of 8 -- IN THE DISTRICT COURT HELD AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Noreen Mary Chapman v. Australian Postal Corporation] Plaint No. 453 of 1998 BETWEEN: NOREEN MARY CHAPMAN Plaintiff AND: AUSTRALIAN POSTAL CORPORATION Defendant JUDGMENT Judgment delivered: 10 February 2000. Catchwords: NEGLIGENCE – Duty of care – plf slipped and fell on ramp whilst exiting a post office – s30 Workplace Health and Safety Act 1995 does not provide private right of action for customers of workplace. Counsel: P.M. Hoskins for the plaintiff A.P.J Collins for the defendant Solicitors: Boyce Garrick for the plaintiff Clarke & Kann for the defendant Hearing Dates: 8, 9 December 1999 -- 8 of 8 --