Castle v Weeks & Ors [1998] QSC 290

IN THE SUPREME COURT OF QUEENSLAND No. 344 of 1995 Brisbane Before Mr Justice Muir BETWEEN: PAMELA CASTLE Plaintiff AND: SUSAN WEEKS First Defendant AND: EDWARD DUNBAR WEEKS Second Defendant AND: JOANNA WEEKS Third Defendant AND: HELEN PATRICIA GRASSICK Fourth Defendant REASONS FOR JUDGMENT - MUIR J Judgment delivered 18 December 1998 CATCHWORDS: TORT - personal injury - negligence - safe system of work - whether breach of s.9(1) Workplace Health and Safety Act 1989 - employers’ duty to provide a safe system of work - damages. Counsel: Mr G.W. Diehm for the plaintiff Mr M.T. O’Sullivan for the defendants Solicitors: Simmonds Crowley & Galvin as town agents for Lilley Spanner & Stacey for the plaintiff Cleary Hoare for the defendants Hearing dates: 1-3 December 1998 -- 1 of 21 -- IN THE SUPREME COURT OF QUEENSLAND No. 344 of 1995 Brisbane Before Mr Justice Muir BETWEEN: PAMELA CASTLE Plaintiff AND: SUSAN WEEKS First Defendant AND: EDWARD DUNBAR WEEKS Second Defendant AND: JOANNA WEEKS Third Defendant AND: HELEN PATRICIA GRASSICK Fourth Defendant REASONS FOR JUDGMENT - MUIR J Judgment delivered 18 December 1998 1 The plaintiff is a 53 year old woman who was injured on 7 March 1992 when, preparing to place empty milk cartons in a wheelie bin, she fell on her back on a concrete driveway with her right leg caught under her. She said that at the time of the fall she had her left foot on the driveway and had taken, or was in the process of taking, a step forward with her right leg in the direction of the bin. She is unable to say whether her right foot made “firm contact with the ground”. She said that she had a hand on the lid of the bin which was pulled over in the course of the incident. Her recollection is that as she put her right foot down she was “thrown forward”. In further examination in chief, which I permitted after the commencement of the plaintiff’s cross examination, the plaintiff said that her “right leg” slipped and that the leg moved: -- 2 of 21 -- 2 “straight downhill towards the concrete. ... as I stepped and it just slipped me forward. The bin was, as I explained, down but back behind me. Because I slipped forward on the slope, back onto the concrete, the concrete was what caused whatever was under me to push the leg up under me.” 2 I find that the plaintiff’s accident occurred when she was about to deposit empty milk cartons in the bin. I doubt that she has a recollection of the precise sequence of events immediately preceding and during her fall. She has no knowledge of what, if anything, it was on the ground which caused her to lose her footing. 3 The bin was situated within a grassed area (“the median strip”) on a round concrete water meter housing with a cast iron lid positioned about 1.1 m. to the left of the driveway looking from the street towards the house. The driveway is 2.5 m. wide. Its gradient in the vicinity of the place where the accident occurred is 1:4 to 1:35 (or 14-16 degrees). The gradient of the median strip in the vicinity of the location where the accident occurred is about 1:2.7 (or 20 degrees). The gradient between the water metre and the edge of the driveway at right angles to the driveway is 1:4.7 (or 12 degrees). 4 At the time of the accident the plaintiff was employed by the first and second defendants as a live-in companion, nurse and housekeeper for their mother with whom she lived at the latter’s dwelling house at 17 Nairana Rest, Noosa Heads. The mother, in her early seventies, suffered from dementia and was dependent on the plaintiff to perform normal household duties, including the depositing of waste in the bin and the placing of the bin for collection. 5 The house is two storeys in height. The plaintiff resided in a bedroom downstairs whilst the kitchen/general living areas of the house and the defendants’ mother’s bedroom were upstairs. The plaintiff’s practice, according to her, was to position the bin on an unturfed area at the foot of the median strip. It is difficult to say whether that area is an unsealed part of the roadway or part of the footpath, but I think it is probably the former. It does not appear to be part of the yard -- 3 of 21 -- 3 of the house or of the adjoining house. 6 The weather conditions had been relatively dry for some time prior to the accident and the grass between the water meter and the driveway was probably dry and sparse. The plaintiff said that at an unspecified time close to the date of the accident, a large tree had fallen over in the median strip and had resulted in rather more than the usual amount of leaves lying on the median strip and driveway. At the time of the accident the plaintiff was wearing lace-up walking boots with rubber soles with deep treads. The location of the bin at the time of the accident 7 There is some contest on the evidence as to how the bin came to be located on the water meter and, to a lesser extent, as to whether the bin was even in the position asserted by the plaintiff. I find that the bin was on the water meter at the time of the accident. The plaintiff said that she saw the second defendant place the bin in that position after removing it from near the foot of the driveway and that he explained to her that he did so because he did not want to hit it with his four wheel drive vehicle as he turned into the driveway. The second defendant, Mr Weeks, does not recall changing the location of the bin or having any conversation about it. I accept Mr Weeks as a truthful witness but I consider that the plaintiff is more likely than Mr Weeks to have a recollection of an essentially mundane incident after such lengthy period. She has a much greater cause to remember the circumstances surrounding her accident. However, I do not accept her evidence without reservation. 8 I consider that the probabilities are that Mr Weeks moved the bin, perceiving it to be a hazard in its position at the side of the road. I do not accept that he told the plaintiff that his reason for moving it was to give him access into the driveway or that he, in fact, experienced any such difficulty in gaining access. I accept that he did not give any directions to the plaintiff as to the appropriate location of the bin, its use or as to the placing of the empty milk cartons in it. He -- 4 of 21 -- 4 may well have had a discussion with the plaintiff about disposing of the milk cartons. The plaintiff’s working background 9 The plaintiff left school in New South Wales at the age of 16 years, having completed matriculation. From 1960 to 1965 she was employed as a general nurse in New South Wales and as a psychiatric nurse. The evidence suggests that she obtained the appropriate qualifications. From 1965 to 1968 she was manageress and licensee of the Oasis Motel at Alice Springs earning a gross wage of $800 per week. From 1969 to 1972 she was employed on a wage of $800 per week as a public relations officer for an air charter company in Darwin. From 1974 to 1984 she had various other occupations in the hospitality industry and for most of that period was paid at around the rate of $800 per week. From 1984 to 1987 she had her own tourist taxi service in Broome, grossing between $1000 and $1400 per week. She returned to Armidale in 1987 to nurse her parents. She took that opportunity to obtain a degree in psychology from the New England University. On 13 June 1990 she obtained a position with Dial-an-Angel as a companion nurse on a wage of $250 net per week plus petrol, food and accommodation. From 28 December 1990 until 7 March 1992 she was employed as a companion nurse to the fourth defendant on a wage of $250 per week plus a $40 a week food allowance for herself and the fourth defendant. The plaintiff’s pre-accident medical history 10 The plaintiff was involved in a motor vehicle accident in 1975 when she sustained a fracture of her right patella and ultimately underwent a patellectomy. In January 1991 she had a total right knee replacement. Her evidence was that she recovered well from this procedure. She said that she worked hard at her rehabilitation and within about 12 months she was able to pursue vigorous activities for sustained periods without particular discomfort. According to her, she played golf, walked 10 kilometres once a week, swam, danced and “aqua boarded”. She was advised not to play tennis or waterski. I find the plaintiff’s evidence as to her physical activities -- 5 of 21 -- 5 substantially correct, except that her recovery was not as complete as she suggested nor was the recovery period as trouble free as she implied. In my view, she was inclined to minimise the extent of the symptoms and disabilities resulting from the above surgical procedures. The 7 March 1992 injury and treatment On 7 March 1992, in the course of the incident discussed earlier, the plaintiff sustained a supra condylar fracture of the right femur above her total knee prosthesis. She was placed in a cylinder plaster at the Nambour General Hospital. She made a good post operative recovery and on 10 March 1992 was placed in an extended fibreglass cast. The fracture continued to show good progress and the plaintiff was discharged on 18 March 1992. 11 The plaster cast was removed on 1 June 1992 and the plaintiff then had extensive physiotherapy. She attended outpatients at the Prince Charles Hospital on 9 occasions between 13 July 1992 and 5 August 1993. 12 The left knee was not injured in the March 1992 incident. 13 In about December 1993 the plaintiff’s right knee gave way with the result that she was obliged to take more weight on the left knee which became painful over time. On 20 May 1994 an arthroscopy of the left knee was performed at the Prince Charles Hospital which showed some arthritic changes. When seen at Prince Charles Hospital on 9 June 1994 there was no report of pain in her left knee. On a visit to outpatients at the hospital on 27 October 1994, the plaintiff complained of a further injury to her left knee resulting from a giving way of the right knee. A repeat arthroscopy on 11 November 1994 confirmed “patello femoral degenerative changes and an area of bare bone on the medial femoral condyle where her previous injury had occurred”. The medical evidence 14 Dr Wallace, orthopaedic surgeon, expressed the opinion that - “... the patient had a pre existing disability in the right knee prior to her accident -- 6 of 21 -- 6 on 7.3.92 of 20 percent ... She now has a 45 percent disability due to the loss of efficient use of the right lower limb ... She now has degenerative changes in the left knee which have been exacerbated by the injury to her right knee of 7 March 1992. These degenerative changes are on the balance of probabilities likely to have been present before the accident on 7.3.92 but have become increasingly symptomatic due to the increased weight bearing during the rehabilitation of her right knee ... In the fullness of time she may well require a revision of this total knee replacement (right knee) due to loosening as a result of day to day wear. ... The patient has a loss of efficient use of the left knee of 20 percent.” 15 In a report of 2 November 1995 Dr Wallace stated - “As regards the patient’s left knee the degenerative changes were pre-existing but have become increasingly symptomatic due to the increased weight bearing due to the rehabilitation of the right knee, although this accentuated her symptoms it has not dramatically accelerated the degenerative process but it is possible to contribute some of the present loss of efficient use of the left knee to the increased burden it has to bear since the client’s accident. It is difficult to quantify this in terms of percentage.” 16 Dr Wallace had not seen the plaintiff since November 1995. In his oral evidence he accepted that the plaintiff was suited to sedentary work, but expressed reservations about her ability to function as a hospital ward clerk, having regard to the degree of movement involved in that occupation. It was implicit that his previous assessment of the plaintiff’s disability in the right knee prior to her March 1992 accident may need to be increased having regard to the plaintiff’s medical history related by Dr Myer, a general practitioner at Noosa consulted by the plaintiff prior to March 1992. He accepted that much of the plaintiff’s present problems with her left knee relate to a pre-existing degenerative condition and that, in the long term, the plaintiff would have been limited to sedentary work even had she not had the March 1992 accident. 17 Dr Sugars, orthopaedic supervisor at the Prince Charles Hospital, expressed the following opinions. 18 Immediate prior to the accident the plaintiff - “... probably was suffering from a disability of the order of 20 percent loss of -- 7 of 21 -- 7 function of her right leg ... Since that time (January 1991) continued assessment of her knee has revealed that she has regained a range of movement of 0 to 110 degrees and the knee is stable in extension. She has suffered some residual displacement from her fracture which has left her with about 10 or 12 percent valgus deformity of the right knee and she has had ongoing pain and instability in this knee causing her to fall. Objectively she certainly has not lost more than 50 percent of the use of this leg. I can therefore not attribute any further loss of function to her injury in 1992 to be greater than 25 percent. She is going to develop progressive degenerative changes in (the left knee) and I think that these have been speeded up by her injury in December 1993 ... It is difficult at this stage to put any level of incapacity on her left knee problems.” 19 The opinion of Dr Morgan, orthopaedic surgeon, is as follows - 20 The combination of a patellectomy with the plaintiff’s knee replacement “would give rise to a loss of some 40 percent of normal lower limb function”. The March 1992 incident - “... would have been associated with considerable pain and discomfort. It would also have threatened the stability of the femoral component of the knee replacement. The fracture was managed non operatively with prolonged cast immobilisation. Although the fracture has gone onto sound osseous union it has done so with adequate alignment. Mrs Castle continues to note ongoing discomfort and is of the view that her knee function is less efficient than it was prior to the fracture. I remain capable of measuring an impairment of some 50 percent of normal right lower limb function. It is probable therefore that this accident has contributed to a loss of some 10 percent of normal right lower limb function. ... Her left knee joint is characterised by loss of some 10 percent of normal left lower limb function.” 21 In his report of 18 October 1997 Dr Morgan said there were three possible causes for the problems experienced by the plaintiff with her left knee and that only one of these possibilities was related to the injury suffered in March 1992. He said it was difficult to accurately differentiate between the three possibilities and that Dr Sugars was best equipped to do so. He said in the report that - “Mrs Castle remains capable of sedentary work practices and in particular could expect to work as a hospital ward clerk, award receptionist, as a medical -- 8 of 21 -- 8 receptionist or performing sedentary duties in a tourist and travel office.” 22 Dr Morgan had perused video recordings of the plaintiff which are referred to in more detail later. He found the way in which the plaintiff moved in the second recording, which was taken at a motel in Aspley on 18 November 1997, difficult to reconcile with the way the plaintiff moved when he saw her on 17 October 1997, and with the recording depicting her movements outside his rooms on 17 November 1997. In his oral evidence he strongly confirmed his written opinion that the plaintiff was capable of sedentary work. In so doing he pointed out that persons with the type of disability suffered by the plaintiff commonly worked and found ways in which to compensate for such disabilities. He did not appear to set a great deal of store, having regard to the limited types of work which he recommended, by the plaintiff’s apprehension about a leg giving way. He pointed out that such a risk could be redressed by appropriate training in how to move so as to minimize the risk and by the use of aids such as walking sticks. He drew the conclusion that the plaintiff’s conduct, when in his rooms on 17 October 1997, was somewhat unusual and inappropriate. He accepted that the plaintiff’s injury may interfere with her ability to cope with heavy duties around the home but said that, in consequence of her earlier injuries, she would have required help in any event. He had no difficulty in concluding that there was nothing in her physical condition which ought prevent her from doing normal work around the house, such as cooking, cleaning and washing. In his view, the plaintiff would have been restricted to generally sedentary work by the result of the 1991 procedures even if the later accident had not occurred. 23 Dr John Morris, orthopaedic surgeon, saw the plaintiff in December 1994. He concluded that the plaintiff had a 40 percent disability to the right leg prior to her accident which increased the disability by about 10 percent. In his opinion, the degenerative changes in the left knee were probably naturally occurring but may have been slightly accelerated by the fact that she has had -- 9 of 21 -- 9 to put more weight on the left leg than the right. In his view, the symptoms were accelerated only by a year or so. 24 Dr John Cameron, consultant neurologist, saw the plaintiff in July 1998. In a report dated 27 July 1998 he expressed the opinion that there was no evidence of “reflex sympathetic dystrophy”. The point of obtaining a report from Dr Cameron was that Dr Morris had expressed the possibility that “quite massive muscle wasting in the right leg compared to the left” and “weakness of her quadrocepts” may have been associated with “some type of reflex similar to dystrophy”. 25 Dr John Myer, a general practitioner, saw the plaintiff at Noosa in relation to her right knee on 23.4.1991, 21.5.1991, 3.7.1991, 4.9.1991 and 22.10.1991. In a letter to the plaintiff’s solicitors dated 26 October 1993 he observed - “When seen in September 1991 she had increased pain after lifting a heavy weight, whilst she experienced further discomfort in October 1991 after a fall. ... When last seen on the 22/10/91 prior to her fall her right knee joint had not stabilised - it may have done so between then and 7/3/92.” 26 Dr Louis Salzman, clinical neuropsychologist, in a report dated 21 December 1994 concluded that the plaintiff “in her current condition” was unemployable. He recommended that she be seen by an occupational therapist in order to fully evaluate her physical limitations. The reason for his conclusion seems to be as follows - “In her current condition her cognitive abilities are adequate for employment in a sedentary occupation, however, there are a number of factors which suggest that she would not be able to cope with this type of employment. The first is that her pain is quite severe which makes her irritable and affects her concentration and attention, and the second is that her underlying personality is that of a hypomaniac individual who is driven to remain active.” Dr Salzman, in oral evidence, confirmed that the above passage encapsulated the reasons for his conclusion that the plaintiff was unemployable. He had not been asked to update his report. -- 10 of 21 -- 10 27 Helen Coles, occupational therapist, expressed the following opinion in a report dated 1 December 1998 - “1. Mrs Castle continues to be significantly limited in her endurance for mobility, agility and static positioning. 2. She has advised of a further significant fall since last seen, described by her as being causally related to the initial injury, and resulting in further pain to both knees. 3. She has described compensatory, protective weight bearing through her left leg, resulting in heightening of symptoms in her left knee. 4. Mrs Castle presents as living under difficult circumstances since her injury, initially in the caravan, thereafter moving to the flat in which she could not cope because of floor surfaces, and currently variable difficulty in her present residence with absence of reliable on-call support. ... 6. Her interaction was indicative of her experiencing frustration by the impact of her injury on her lifestyle and capacity to engage in former leisure pursuits. 7. Mrs Castle continues to experience mobility limitations, her agility is impaired, and her general endurance and reliability of mobility have deteriorated since she was she was (sic) seen four years ago. 8. Her right leg is impaired and her left leg also contributes to her overall difficulties with mobility. Her present need to mobilise on crutches with two knee splints further impedes her ability to negotiate other flat ground, and to carry and handle items. 9. Her quality of life remains substantially compromised, and her level of support would appear low. 10. Mrs Castle would continue to have limited prospects for realistic employment. 11. Whilst Mrs Castle remains dependent on crutches and whilst her mobility remains so compromised, she has little prospect for being employed as a hospital ward clerk or ward receptionist. 12. It is unlikely now that she would gain realistically remunerative employment as a travel consultant. 13. She continues to have a need, albeit unmet in the past, of domestic assistance of a minimum of six to eight hours per week for her to enjoy -- 11 of 21 -- 11 reasonable quality of life. In the event of further deterioration with age, this could be expected to further increase.” 28 The report notes that the above opinion and observations “are based on information provided by Mrs Castle” and have “not been independently verified”. The plaintiff’s account of her own disabilities 29 The plaintiff says that her right left cannot “load bear”. She constantly experiences pain in that leg. On 16 December 1993 her right leg gave out and, in consequence, both her cartilages “locked up”. That lasted for three weeks and she, on a regular basis since that time, has experienced pain and swelling in her left leg. The pain is said to be slightly less than that experienced in the right leg. In August 1997 she had a severe fall which “tore (the) right knee inside and caused an awful lot of pressure to be put onto the left leg”. Since the accident in 1992 she has taken Valium for spasms and cramps, Dymadon Forte for pain when it becomes severe and Normison for sleep at night. She was not able to estimate the degree of frequency with which she took her medication. It seems, however, that she takes the medication on most days. She says that she intended to work into her seventies and that prior to the accident in March 1992, she planned to return to the tourism industry where she had a public relations job to go to with a new tourist company in Western Australia. She has concluded that she is unemployable because she can “only sit for twenty minutes”, she is on crutches, has a leg which gives way and she does not know if she has the concentration to be able to sit and work for any period sufficient to make her employable. She finds it increasingly difficult to stand and cook a meal for herself and has considerable difficulty with tasks such as taking in the washing and general housekeeping. 30 No corroboration was offered for her assertion that a job was available for her in the tourist industry in Western Australia and I do not accept the evidence. Even if accepted, the evidence would have had little value in the absence of evidence as to terms and conditions of employment. -- 12 of 21 -- 12 Conclusions as to the plaintiff’s “mobility” and level of pain 31 In my view the plaintiff is not a reliable reporter of her symptoms and physical limitations and has not reliably reported those matters consistently to Mrs Coles and to the medical practitioners who gave evidence. She has overstated her lack of mobility and lack of physical capability. On 17 October 1997 the plaintiff went to see Dr Morgan at his surgery. A videotape was made of that visit and of her movements at a motel at Aspley the next day. There is a marked contrast between the way in which the plaintiff moved outside the doctor’s surgery and the way she moved at the motel at Aspley. When moving about at the motel it did not appear that she was reliant on the Canadian crutches, which she held, for support. She got into the front seat of a vehicle twice and out of it once. She appeared to have little difficulty in executing those movements. On the occasion on which she alighted from the vehicle she did so without crutches, walked around the vehicle and got back in, all without any appearance of obvious restriction of movement or discomfort. 32 What she reports of her ability to walk also rather suggests to me that she is inclined to exaggerate her lack of mobility. She said she could walk from the court room to McDonald’s (on the corner of George and Ann Street) without braces or crutches and the leg may not give way, but then again it could give way and she could go “head over heels” after walking only a few metres. That evidence does not suggest that the plaintiff is likely to have the degree of difficulty in moving displayed in the court room and on her visit to Dr Morgan’s rooms, as depicted on the video or narrated by Dr Morgan. I do not accept that the difference can be explained by reference to the plaintiff’s assertion that she went to see Dr Morgan after completing a debilitating car journey from Yarraman. I am also satisfied that the plaintiff exaggerated her symptoms to Dr Morgan. That was Dr Morgan’s impression. Dr Morris could advance no medical explanation -- 13 of 21 -- 13 for the different ways in which the two video recordings showed the plaintiff moving. Conclusions as to the plaintiff’s injuries and disability 33 I accept the evidence of Dr Morgan as to the extent of the plaintiff’s disabilities and, in particular, that evidence which I have set out above. Dr Morgan had the benefit over the other medical practitioners of having seen the plaintiff comparatively recently. He had also seen her as a patient prior to being asked to see her in 1993 on behalf of the Workers’ Compensation Board. His conclusions, in important respects, are shared by Dr Morris. I do not doubt that the plaintiff has suffered a considerable degree of pain as a result of her 1992 injury and that the plaintiff continues to endure a considerable degree of pain and discomfort. But I do not accept that the level of pain is such as to prevent the plaintiff from concentrating sufficiently to enable her to perform most types of office employment. There was no medical support for the plaintiff’s contentions in this regard. The defendants’ duty of care 34 The defendants’ duty, as the plaintiff's employer, was - “... that of a reasonably prudent employer and it is a duty to take reasonable care to avoid exposing the employees to unnecessary risk of injury. The degree of care and foresight required from an employer must naturally vary with the circumstances of the case.”: Hamilton v Nuroof (W.A.) Pty Ltd (1956) 96 CLR 18 at 25, per Dixon CJ and Kitto J. 35 That passage was referred to with approval in the joint judgment of Mason, Wilson and Dawson JJ in Bankstown Foundry v Braistina (1985-1986) 160 CLR 301. In that judgment it was observed that it had long been recognised that what is a reasonable standard of care for an employee's safety is “not a low one”. The employer's obligation is to “establish, maintain and enforce such a system, that is, a safe system of work”: McLean v Tedman (1985) 155 CLR 306 at 313. 36 The employer must take into account the possibility that an employee to whom a duty of -- 14 of 21 -- 14 care is owed might fail to take proper care for his or her own safety: McLean v Tedman (supra) at 312-3 and Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431. Alleged breach by the defendant of its duty of care 37 In my view, the question of whether there was a foreseeable risk of injury to the plaintiff if the bin was placed on the slope in the front yard of the house is not without difficulty. But for there to be a foreseeable risk of injury for present purposes, it is sufficient that the defendants should have reasonably foreseen in a general way that the plaintiff might injure herself by slipping or falling in the yard: Phillis v Daly (1988) 15 NSWLR 65 at 77. The slope, although not great, was distinct. One’s every day experiences tell one that there is a greater risk of slipping on a sloping surface than a flat one. Changing conditions on a sloping grassed surface in the yard of a house property (such as the extent of grass cover, moisture levels and leaf accumulation) will tend to vary the degree of such risks from time to time. Not without hesitation I have concluded that a reasonable person in the position of the defendants would have foreseen that such a risk of injury to the plaintiff or to a class of persons including the plaintiff was not “far fetched or fanciful”: cf. Nagle v Rottnest Island Authority (1992-93) 177 CLR 423 at 431 and Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 48. “While a risk which is farfetched or fanciful is not a real risk, a risk may be real even though it is unlikely to occur or is remote”: Phillis v. Daly (supra) at 65, per McHugh JA, citing Wyong Shire Council v. Shirt at 48 and The Wagon Mound (No 2) [1967] 1 AC 617 at 641-643. 38 That being the case, it is necessary to determine what a reasonable man would have done by way of response to the risk. As was said by Mason J, with whose reasons Aickin J agreed, in Wyong Shire Council v Shirt (supra) at 47-48 - “That the perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and -- 15 of 21 -- 15 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.” 39 In my view a reasonable response would have been not to give any directions or impose requirements as to the handling and placement of the bin. More specifically, a reasonable person would have thought that if the plaintiff wished to move the bin to a location more suitable to her she would do so and that in so doing she would not encounter any risk. The situation was a domestic one. Householders in cities throughout the country are used to placing and using bins on sites which are not ideal. The topography and siting of improvements on many domestic lots limits freedom of action in relation to placement of bins. In this case there was a flat area immediately outside the house where the bin could have been placed but the adoption of this placement would have necessitated the movement of a laden bin down the driveway once a week. If the bin was placed near the end of the driveway, as the plaintiff claimed was her practice, it would have formed an obstacle to traffic and have been exposed to vandalism, theft or damage. A solution advanced on behalf of the plaintiff was that a flat concrete slab could have been constructed at the side of the driveway. That solution had its own limitations. The bin would need to be manoeuvred on and off it. It would have been inconvenient for daily use and would have been prominently exposed to view from the street. 40 In my view, a reasonable person, if he or she had perceived a risk of injury from the positioning of the bin on the water meter, would have regarded the chance of its eventuating as slight. Such a person would also have thought that if a person using the bin fell, the consequences would not be severe. In other words, there would be no reasonable expectation that serious injury would result from a fall on a relatively gently sloping yard. As I have mentioned, the alternative courses of action which could have been taken would have posed disadvantages of their own. -- 16 of 21 -- 16 41 The risk, although real, was small and the circumstances were “such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it”. See Wyong Shire Council v. Shirt (supra) at 45 per Mason J, referring to The Wagon Mound No. 2 [1967] 1 AC 617 at 642-3. 42 In Phillis v. Daly (supra) at 65, the Court of Appeal was concerned with a case in which the plaintiff visitor to a country hotel stepped on a white painted log which served as a border to a car park. The log was rough in areas where branches had been cut from it. The plaintiff was discouraged from walking around the log by the presence of shrubs and when she stood on the log her foot rested on a protrusion causing her to fall. In the course of his reasons, Mahoney JA said at 74 - “There are dangers on any premises. A room may have a desk or a table. There is a danger in that, if I fall, I will hit my head on it and my skull will be fractured. If the desk or table were not there, I would suffer little or no harm. And the danger is obvious: people do slip and fall. And the injury may be serious. But the obvious foreseeability of such an injury and its seriousness does not involve that, if a person falls and hits his head on a table, there must have been a breach of duty by the occupier of the room. And this notwithstanding that people may live without tables and that tables may be easily removed.” 43 A factor to be taken into account in undertaking the balancing exercise referred to in the passage from the judgment of Mason J in Wyong Shire Council v Shirt noted above is the defendants’ duty to provide a safe system of work: Miletic v Capital Territory Health Commission (1995) 69 ALJR 675 at 677. 44 Even having regard to the defendants’ position as employers, I do not accept that they failed to take reasonable care as a result of the placement of the bin on the water meter or by leaving it to the plaintiff to please herself about how she used or positioned the bin. The plaintiff's liability under the Workplace Health and Safety Act 45 The plaintiff claimed also for breach of an alleged duty by the defendant under s.9(1) of -- 17 of 21 -- 17 the Workplace Health and Safety Act 1989. That subsection provides - “An employer who fails to ensure the health and safety at work of all his employees, save where it is not practicable for him to do so, commits an offence against this Act.” Breach of that provision gives rise to a cause of action for damages by a person injured as a result of the breach: Rogers v Brambles Australia Limited [1998] 1 Qd R 212. It was argued on behalf of the defendant that this conclusion was wrong and was not binding on me as the defendant in that case did not argue that the provision did not give rise to a cause of action on the part of an injured employee. Having regard to my conclusions, it is not necessary for me to consider this argument. 46 The onus of establishing impracticability rests on the employer: Kingshott v Goodyear Tyre and Rubber Co Aust Ltd (No. 2) (1987) 8 NSWLR 707 and Rogers v Brambles Australia Limited (supra). 47 “Ensure” in s.9(1) means “make certain” or “make sure”: St Vincent’s Hospital Toowoomba Ltd v Hardy (C.A. No. 7477 of 1997, 6 May 1988, unreported). 48 “Practicable” is defined in s.61 of the Workplace Health and Safety Act 1989 as follows - “‘Practicable’, where the context permits, means practicable having regard to - (a) the nature of the employment or, as the case may be, the particular aspect of the employment concerned; (b) the severity of any potential injury or harm to health or safety that may be inv olv ed, and the deg ree of risk that -- 18 of 21 -- 18 exis ts in rela tion ther eto; (c) the state of knowledge about the injury or harm to health or safety that may be involved, about the risk of that injury or harm to health or safety occurring and about any ways of preventing, removing or mitigating that injury, harm or risk; (d) the availability and suitability of ways to prevent, remove or mitigate that injury or harm to health or safety or risk; and (e) whether the cost of preventing, removing or mitigating that injury or harm to health or safety or that risk is prohibitive in the circumstances.” 49 In my view, for the reasons advanced above, it was not practicable for a system to have been introduced by the defendants in relation to the bin so as to ensure the plaintiff’s safety or for some other placement of the bin to have been made by Mr Weeks prior to the accident. In addition, it is apparent from the evidence that the plaintiff and her elderly charge regularly walked up and down the driveway and around the yard without harm or any apprehension of risk. The defendants had no apprehension of risk to the plaintiff as a result of the placement of the bin whether by Mr Weeks or by the plaintiff on other occasions. Nor would a reasonable person in the position of the defendants have had an apprehension of risk. The plaintiff had the effective management of the household including matters such as the placement of the bin. She was free to move the bin to a preferred location if she chose to do so. She was an intelligent woman and in 1992 so far as the defendants could tell, physically fit in all respects. 50 The plaintiff has the added difficulty that the reasons for her fall are unknown. She says she slipped but it is possible that her bad leg gave way or that, being pre-occupied, the plaintiff lost her footing. Consequently, even if there was a failure by the defendants to ensure the safety of the plaintiff by reference to the positioning of the bin, it has not been shown that any breach -- 19 of 21 -- 19 of duty was causative of the plaintiff’s injury. Damages 51 Had the plaintiff been successful in the action, her damages award would have been assessed on the following basis: $ Pain suffering and loss of amenities 30,000.00 Interest ($15,000.00 - $8,022.00 disability settlement = $6,978) [x 2% x 6.75 years] Economic Loss Past $350.00 per week to December 1994 (2.75 years) Interest (6% x 6.75 years) (Plaintiff had receipt of $12,357.35 net weekly compensation (8.3.92-16.4.93) and DSS April 1993 - deduct $8,632 ($100.00 per week x 52 x 1.66 years) Future economic loss $100.00 per week for 9 yrs discounted by application of the 5% tables and further discounted by 20% Special Damages (as agreed) 18,565.41 Interest (as agreed) 2,914.35 Fox v. Wood 3,946.70 Loss of Superannuation (6% of Past and Future Economic Loss) Griffiths v. Kerkemeyer Past (1 hr per week to present at $10.00 per hour) 3,510.00 Interest at 2% 473.00 Future 5,000.00 Future pharmaceuticals 5,000.00 Less Workers’ Compensation Refund $33,505.25 52 The sum allowed for future economic loss is arrived at with a view to taking into account the plaintiff’s additional loss of earning capacity up to age 60. By “additional” I mean in addition to the loss of earning capacity already resulting from her 1975 accident. I have concluded that -- 20 of 21 -- 20 she would have wished to work until about age 62, but that the award needs to be discounted having regard to general vicissitudes of life and to the possibility that her disabilities arising from the 1975 accident may have caused premature retirement or precipitated premature disablement. Conclusion 53 I give judgment in the action for the defendants. 54 I order that the plaintiff pay the defendants’ costs of and incidental to the action to be taxed. -- 21 of 21 --