Brauer v Corporation of the Synod of the Diocese of Brisbane [1993] QSC 340

( ~117 b se qsfs+o ·~· State Reporting Bureau~--\ •• _[1_ ........ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION KIEFEL J No 588 of 1990 JUDITH ANN BRAUER and THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE BRISBANE .. DATE 26/10/93 JUDGMENT 1 'I REVI2~9 CQ?lE3 !SSUEO Stato neps'"ti~i] 8:..;;·.?3U Date 1q I i ;q (f.- Plaintiff Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 18 -- 261093 D.1 Turn 1 AEA (Kiefel J) ~ HER HONOUR: In this action I give judgment for the plaintiff in the sum of $313,326.19. I publish my reasons. os ov 08 oc:: 0~ Further order that the defendant pay the plaintiff's costs of and incidental to the action to be taxed. 2 ORDER () 0 0 u -- 2 of 18 -- ( ( IN THE SUPREME COURT OF QUEENSLAND Writ No. 588 of 1990 Brisbane [Brauer v. Synod of the Diocese of Brisbane] BETWEEN: JUDITH ANN BRAUER THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE JUDGMENT - KIEFEL I Plaintiff Defendant JUDGMENT DELIVERED: 26.10.1993 CATCHWORDS: REPRESENTATION: HEARING DATES: NEGLIGENCE - LIABILITY OF EMPLOYERS - INJURIES AT PLACE OF WORK- CONTRIBUTORY NEGLIGENCE Mr R. Alldridge on behalf of the Plaintiff Mr D. Campbell on behalf of the Defendant 16, 17 and 20 September 1993 -- 3 of 18 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: JUDITH ANN BRAUER THE CORPORATION OF THE SYNOD OF THE DIOCESE OF BRISBANE JUDGMENT KIEFEL I Delivered the 26th day of October 1993. Writ No. 588 of 1990 Plaintiff Defendant On 6th September 1988, the plaintiff was employed as a personal care assistant and recreational officer at the defendant's hostel, St John's Home. She had been employed at the hostel for about five and a half years. Her mother held the position of matron there. There is no doubt that on that date she was injured as she descended a staircase in one of the residential buildings at the hostel. The questions to be determined are how she came to fall and whether the fall is the cause of all or some of the injuries of which she thereafter complained. The stairs the plaintiff descended were made of wood and were constructed with a landing at about half way. The steps themselves had a raised section with a rubber insert which provided an improved grip. The nose of the step was of polished wood. No criticism of their design generally was made by the safety engineer, -- 4 of 18 -- ! ' ( ''--- 2 Mr King. He was however of the view that a non-slip treatment could have been provided for the nose of the step itself, to take account of the circumstance that a person might place the ball of their foot forward of the rubber insert. In this respect the requirements of the British Standard could be applied. The stairs in question do conform to the requirements of the Queensland Building Act and no non- adherence to any applicable Australian Standard was referred to, although it was said that it does not extend to facilities such as the hostel. The evidence did not however go so far as to show that the defendant constructed the stairs contrary to accepted building standards in Australia. The tenor of Mr King's evidence was simply that more could have been done. This case does not however, in my view, turn upon questions concerning the materials chosen in the construction of the stairs, or at least they are not conclusive of it. If water was in fact present on the stairs at the time, the question becomes one of the defendant's failure to warn the plaintiff. In that respect the defendant is unlikely to be able to suggest there was no foreseeable risk to the plaintiff, given the nature of the stairs. The versions of the events leading to the fall are different in almost every critical respect. It is at least clear on the two accounts, of the plaintiff and of Mrs Harris, that the plaintiff was on the stairs, descending to the ground floor from the first and that a conversation with Mrs Harris occurred. The plaintiff says that as she descended she observed Mrs Harris, a cleaner, mopping part of the ground floor adjacent to the bottom of the stairs. She moved to the left of the stairs in the process of speaking. At the conclusion of the conversation she prepared to continue her descent, moving back to the right of the stairs. She recalls having her hand on -- 5 of 18 -- i . 3 the right hand rail. She was putting her foot down to the next step when Mrs Harris called out a warning to the effect that she ought to be careful as she, Mrs Harris, had just mopped the stairs. She recalls next seeing both her feet out in front of her and thinking to herself that that was rather odd. She recalls little else until she regained consciousness, then finding herself lying on the landing with Mrs Harris enquiring as to her well-being. She says that Mrs Harris made the comment that her head had made a deal of noise as it had struck the stairs on falling, but she did not then recall striking her head and did not believe she had done so. She says she felt embarrassed at falling, and was dazed and shaken. She considered this was simply the effect of receiving a fright and thought to return to work after recording the incident in the appropriate forms held in the office. When she did return to work she felt dizzy and suffered a headache. It was when she put her hand to her head at this point that she felt a lump and realised that she had indeed struck her head. That afternoon she consulted a doctor at the Toowong Medical Centre where she usually r attended for general medical treatment. She had a few days off work and then \. returned. She remained then some three or four days and was then absent from work for about six and a half weeks. Mrs Harris however neither agrees that she was in the position indicated by the plaintiff nor that she was mopping. Indeed she emphatically denies that she mopped the floors or the stairwell that morning. She gave ·evidence that she was engaged in the task of counting dirty linen when the plaintiff appeared descending the stairs. When the plaintiff was one step from the landing (not the three steps the plaintiff indicated) she had a good view of the plaintiff. Her eyes were level with that stair and no doubt she was looking up, although it is difficult to estimate how -- 6 of 18 -- ( 4 much of the railings obscured her view. In any event she says that the plaintiff fainted, or to be more accurate, that she observed her simply collapsing on the stairs without warning, striking her head and her right arm as she fell. I should add that it is clear from the later medical evidence that the plaintiff did suffer such injuries to her body. Initially Mrs Harris said that she would not have reached the task of mopping by that time, for she had a large number of other duties to fulfil before it. In sequence, she would make the (numerous) beds, tidy and sweep before she mopped. It did however appear that she commenced work at 8.30 a.m. each day and that another cleaner started before her. Whatever that other cleaner had not completed by the time she presented for work, she would attend to, prior to carrying out what she described as the daily tasks of sweeping and mopping. The incident here is said to have occurred at about 9 a.m. Further, whilst she said that it was generally her practice to wait until the residents were going out or undertaking their activities at other parts of the hostel following breakfast, before she mopped the floor, at times she did mop it whilst they were at breakfast. On her evidence this would mean that she on occasions mopped almost immediately upon her arrival. On the evidence of the plaintiff's mother, breakfast took place between 7.45 a.m. and 9.00 a.m. There was no evidence that persons were moving about the residential building in question at the time the plaintiff descended the stairs. Indeed on her evidence she was going to the breakfast rooms to collect these people. At the least it seems that on some occasions the floors were cleaned at a quite early time, and at about 9 a.m. -- 7 of 18 -- ( 5 The plaintiff and her mother gave evidence that it was the practice, and indeed that the matron had specifically directed, that cleaning staff place signs warning residents that the floors were wet when mopping was taking place, and that stairs were required to be cordoned off by rope during this time. This of course has the ring of commonsense about it, particularly given the age of persons resident in this hostel, although one should not of course thereby assume that it was the case. Indeed the plaintiff's mother gave evidence that she had previously had occasion to remind Mrs Harris of this requirement, the inference being that someone had brought to her attention that Mrs Harris had not complied with the direction on occasions. Mrs Harris however says that no such direction was ever given and that she was not aware of the provision of either ropes or signs. The only sign she knew of was one indicating "wet polish". The provision of only that sign seems somewhat odd. Mrs Harris said that the plaintiff, following her fall, was in a different position from that indicated by the plaintiff herself. She says she accompanied the plaintiff to the office where she, Mrs Harris, indicated to the matron that her daughter had fainted. The plaintiff's mother denies that there was ever any reference to fainting. There was no evidence of versions of the incident recorded at or about that time. Mrs Harris also says that she was aware that loss of consciousness could be a serious matter, but says that she made no enquiry of the plaintiff as to the cause of it or enquired as to her health afterwards. So far as she was aware the plaintiff was not absent from work for any lengthy period of time and she was not aware that she had suffered any severe or serious injury. This is all in the background of a friendly -- 8 of 18 -- 6 relationship having existed between Mrs Harris and the plaintiff and of evidence that in fact the plaintiff was absent from work for some time. I was impressed with both the plaintiff and her mother as witnesses. I observed no artfulness in the plaintiff's demeanour or her evidence and her mother struck me as a very direct woman, likely to be efficient, if not professional, in the conduct of her occupation. It is relevant here then to refer to questions relating to the plaintiff's psychological and general health prior to the incident. Whilst it is perhaps more strikingly relevant to the question of causation of the injuries, the defendant's witnesses painted a very different picture of the plaintiff prior to the ( incident and it was urged upon me that I ought to draw inferences from it affecting the veracity of the plaintiff's evidence and the likelihood that she may have fainted. In essence the picture painted by Mrs Harris, but principally the witness Mrs Smith, another employee at the hospital, was that of an emotionally disturbed, stressed, chronically ill young woman whose mother protected her from a large part of the ( heavier work involved in her daily tasks in recognition of her frail condition. I have ,, however concluded that, as with the evidence of Mrs Harris concerning the events of the day in question, this view is the likely result of a reconstruction by these witnesses of matters they observed subsequent to the accident but which have been translated to the period prior to it. I was particularly unimpressed by Mrs Smith as a witness. The plaintiff said she had good health prior to the accident. The plaintiff's family and medical history did indicate some traumatic events in the past and what might be expected to be associated periods of emotional upset. Further, she had over the years undergone some operations. The plaintiff says her position at the -- 9 of 18 -- 7 hostel required a high level of energy and she was able to cope with it. At times she would be required to awake and attend people during the late evening and still present for work early in the morning. She was very happy in her job, which she found fulfilling, and this appears to be confirmed by Dr Elliot who saw her regularly for some years prior to the accident. Her mother says that rather than "mollycoddle" her, as was suggested, the plaintiff was required to work harder than other employees for the simple reason that she was her daughter. My observation of the plaintiff's mother during evidence left me in considerable doubt that she would tolerate anyone performing to less than an efficient standard. When questioned about some of the events in the plaintiff's history her mother answered that she did not consider that this indicated the plaintiff had had a difficult life. The impression she conveyed was that of a resilient, if not a fairly tough-minded person. It is very difficult to draw the inference that she would be likely to cosset the plaintiff. The plaintiff was engaged to be married at the time of the accident and l) enjoyed an active social life. She says she regularly undertook water sports including swimming, and horse-riding. The picture thus painted was of a capable, energetic and fit young woman who was positive in her outlook and enjoyed her life. This was I \, confirmed by the evidence of her mother and to an extent of Dr Elliot who recognised her as a previously reasonably happy person. It was in particular supported by the evidence of her then fiance, from whom she later separated. I find no reason to doubt his evidence. The evidence of the defendant's witnesses however was to the effect that the plaintiff regularly suffered from headaches and stomach disorders requiring her to rest in the afternoons or to have meals brought to her room; of someone who sought -- 10 of 18 -- 8 assistance for the stress she was suffering from and who related her numerous symptoms to other members of staff and related them to the effects of surgery. The plaintiff's medical history however which is readily apparent from the reports of Drs Elliot and Feros did not indicate a particularly heavy attendance upon doctors in the preceding years. Whilst she did undergo some surgery none of it was of the nature that the defendant's witnesses believed had taken place and she recovered from it on each occasion. She did suffer some emotional upset on the breakdown of her marriage and was referred to a psychiatrist but did not receive treatment. In summary there is nothing in the medical history to indicate that she suffered from a chronic state of less than general good health. There is nothing to suggest that she had ever suffered from dizziness or fainting or had any condition at the time which could be said to be likely to produce it. Whilst, as I will later refer, it may be that her personality was by past events rendered somewhat more vulnerable to the onset of a depressive illness, there was ( nothing in her state of health in the few years prior to the accident observed by her medical practitioners and those close to her, particularly her fiance, which lends any credit to the evidence of the defendant's witnesses. In these circumstances it seems to me that what may have occurred is that these witnesses have, in the considerable time which has now passed, confused events, subsequent to the accident. Following the symptoms which the plaintiff suffered immediately after the fall she developed numerous symptoms including headaches, and aching which she felt from the top of her head to her toes, she experienced poor sleep, poor concentration and became anxious and tearful. She was unable to cope with her employment. In essence she was not functioning properly. Her then general -- 11 of 18 -- ( ( I ( .' 9 practitioner referred her to orthopaedic surgeons concerning her symptoms of physical pain but after receiving some advices from them referred her to a psychiatrist, Dr E. Molnar. The orthopaedic evidence in the action however by Dr Pentis now shows that the plaintiff suffers a residual disability in the sacro- coccygeal region. X-rays show calcification in the area, consistent with injury. He has concluded that in fact the plaintiff suffered soft tissue injuries to her body and an aggravation of the sacro-coccygeal joint as a result of the fall. Surgery is not recommended for the plaintiff and she will continue to suffer some residual disability and pain, imposing amongst other things a restraint upon her ability to work. Additionally, the fall was initially sufficiently emotionally upsetting that the plaintiff's normal menstrual cycle was altered, causing anovulation and resulting in an ovarian cyst. This condition, Dr Elliott noted, cleared after a few months and by December 1988. It may be, as I have said, that the defendant's witnesses recalled the plaintiff's behaviour, inability to work, lethargy and lack of health in this period. The evidence does not suggest to me that it occurred prior to this time. For that reason alone I would have reason to doubt the reliability of the defendant's witnesses. There are however some further aspects of the question of liability of which mention ought to be made. It was submitted for the defendant that the evidence of Mrs Harris is to be preferred because she had a good and detailed memory. However, I considered the detail which she was able to attribute to the incident including her specific observations of which parts of the plaintiff's body struck what part of the stairwell -- 12 of 18 -- 1 0 in what must have been a very short period of time, such that I viewed it with suspicion. Again, it is possible that, later appreciating what parts of the plaintiff's body had been injured in the fall, that she has now constructed an incident which she believes took place. Then again it seems odd to me that she can be so definite in her evidence that the plaintiff collapsed, judging from where she stood. She did not even concede the possibility that what she observed was the plaintiff for instance slipping. She did not for example describe any physical observation of the plaintiff ( or her facial features which might convey the circumstance of a fainting spell. It may be that she now believes the version she has constructed, and it may be that c this was brought about by her own feelings of responsibility for what occurred, but I do not need to speculate about that. Again, on her version, it seems odd to me that she made no enquiry subsequently if, as she says, the plaintiff fainted and she appreciated that could be the sign of something serious. There is no evidence to support the version of Mrs Harris and indeed the evidence on the other aspects I have referred to is to the contrary. It was then suggested that the incident could not have occurred the way the plaintiff said, that is to say that both feet slipped out from her. This overlooks the evidence of Mr King (if it were necessary) who accepted that it could happen in that way. It was further submitted that I ought to regard the plaintiff's evidence as unreliable since she could not now apparently recall what she had said to the doctors about her relationship with the new matron who came to the hostel in the months following the accident. Apart from the passage of time, Dr Molnar explains that it is quite understandable that the plaintiff will not in her condition recall what is -- 13 of 18 -- 11 stressful to her. I do not consider any of the other matters raised concerning the reliability of her evidence cast doubt upon the truthfulness of her version. I consider it likely did occur as she said. Given particularly the terms of Mrs Harris' warning, I consider the plaintiff slipped on the stairs the surface of which were covered by some water and floor cleaners. In that event I find the defendant breached its duty to the plaintiff in failing to warn her, in a timely way, of the presence of the liquid on the stairs, ( whether that be effected by roping off the area or by oral or written warning. ( It was then argued that the plaintiff was herself guilty of contributory negligence in failing to grab the rail or (in the event that I accepted her version) in failing to heed the warning given. The plaintiff's slipping would have been almost instantaneous and the plaintiff could have hardly had any time to consider her position. In those circumstances I do not see that she could have done anything to prevent her fall or the injuries which followed. When the plaintiff attended Or Molnar in May 1989 she had become agitated and depressed. The doctor observed her on a number of occasions suffering severe headaches. She had by then had suicidal ideas. In the interim the plaintiff had ceased her employment at the hostel. Her mother retired from her position and a new matron was appointed, commencing her position on 5th December 1988. That new matron or administrator, Mrs Rookwood, was aware of the plaintiff's accident. Both she and the plaintiff gave evidence that their working relationship was reasonably convivial. Mrs Rookwood however had only been in her position for about four weeks when the plaintiff left and Mrs Rookwood had little to do with her during the working day. The plaintiff said that by this time -- 14 of 18 -- ' ( ( ( 1 2 she was unable to cope with her full duties and Mrs Rookwood agreed that the plaintiff may have said something to this effect at the time that she left. The plaintiff did say to some of the doctors at various times that the new matron was unsympathetic. Putting aside whether Mrs Rookwood said anything directly to that effect, it is not difficult to comprehend that the plaintiff may well have believed this to be the case at the time. In sequence, it seems probable that the plaintiff left her employment as a result of her inability to carry out her duties, itself the consequence of the disability she suffered as a result of the accident. Whilst the loss of her position, an important factor in her life, has as Or Molnar says, significantly contributed to her loss of self- esteem and contributed as an important stressor upon her condition, it seems to me that this was clearly caused by the injuries she suffered as a result of the fall. The defendant urged the submission that the plaintiff's loss of her job was the cause of the following depressive illness. That however takes no account of the fact that she was suffering severe symptoms and an inability to cope with her position prior to her leaving that employment. Drs Molnar and Apel (who later treated the plaintiff) were of the view that the plaintiff suffered post-concussional syndrome or reaction. This was characterised by headaches and depression. It was followed by a major depressive illness precipitated by the concussion and exacerbated by the psycho-social stressors including, as I have indicated, her inability to continue with her employment. One followed the other. As this settled, Or Apel is of the view that she then suffered an adjustment disorder with anxious mood, as she realised the difficulty of resuming her former life. -- 15 of 18 -- 13 By January 1993 there had been some improvement in her condition and outlook. She had stabilised with no further subsequent improvement likely. She is, in the doctor's view, unfit for full-time work and at most could carry out light duties one to three days per week. The conditions she has suffered have left her vulnerable to further stressful features of life as more recent events have indeed shown. One such incident resulted in her hospitalisation. She attends Dr Pandy now as her general practitioner and does so on a weekly basis. She attends Dr Apel on a reasonably regular basis. The plaintiff has been significantly disabled as a result of her injuries. She is ( ' now in a quite different position than she enjoyed prior to the accident. She has withdrawn both socially and from her family. Her relationship with the person to whom she was engaged was lost and she is unable to find fulfilment in recreational pursuits or in her employment. The plaintiff's adjustment disorder has been, and will be in the future, such that obtaining or holding employment is unlikely. In addition ( her orthopaedic injury limits her. It is not susceptible to surgical intervention. At \___ ) present the plaintiff works only a few days a week, in a voluntary capacity and one where, I infer, she is not subject to the usual stressors relating to usual employment. I do not think I would be overstating it to say that the defendant's position at the trial was characterised by a concentration on the issue of liability. Many of the features of quantum were not challenged. In this respect the amount of special damages including interest of $19,646.20 referred to in the supplementary statement of loss and damage, ex. 26, was not the subject of attack nor was the figure for future medical expenses at $11,740.00. The Fox and Wood component is $3,769.70. -- 16 of 18 -- 14 With respect to past economic loss a number of schedules (exs. 30 to 33 inclusive) were admitted by consent. The only question which arises is which is the appropriate rate. It seems clear enough to me however that but for the accident the plaintiff would have continued at St John's Home and in that circumstance her past economic loss is $78,950.50 together with superannuation contributions lost of $2,801.20, as further agreed. With respect to future economic loss counsel for the plaintiff submits that little, if any, deduction ought be made simply because it is acknowledged by the plaintiff and the doctors that she is capable of some part-time work, a few days a ( i week. The defendant, he submits must go further and show not only that the plaintiff is able to do that work but also to obtain it and what the earnings from it would be, and refers to Thomas v. O'Shea (1989) Aust.Torts.Reps. 80-251, 68, 701 and Bruhn v. Power Hotels Pty Ltd (unreported decision of White J, 19.7.93. in action 2899/88) which follows it. If a plaintiff's ability to earn as a consequence of injuries 1 sustained places him/her in a position where there is no real likelihood that moneys \ / will be earned, it seems rather artificial to attribute a monetary value to some 'capacity' to earn, when it means no more than that the plaintiff's physical ability to I \ carry out a task is unlikely to be translated into money. It has been said that a plaintiff recovers "not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss": Graham v. Baker (1961) 106 C.L.R. 340, 347 referred to in Todorovic v. Wailer (1981) 150 C.L.R. 402, 464 per Brennan J. Here there is no evidence that a person in the plaintiff's circumstance, with her history and experience, would likely be employed for remuneration for a few days a week. Discounting on that basis would -- 17 of 18 -- ( 1 5 then elevate speculation to a conclusion based on evidence. I allow only something for the chance that the plaintiff might in any event have had periods of unemployment or employment at lower rates. The plaintiff has submitted that twenty per cent would be an appropriate deduction and I consider that is a reasonable approach. Applied to the present net weekly loss of $310.00 per week (schedule 1, ex. 30) a figure of $163,560.00 is reflected. Neither that calculation in schedule 1 nor the figure of $10,551.20 (present loss of future superannuation contributions, applying the five per cent tables and similarly discounting by twenty percent) is disputed. There will then be judgment for the plaintiff in the sum of$ 313,326.19 which takes account of the following: Pain and suffering Interest on $30,000 at two per cent for five years Special damages, including interest Fox v. Wood Future medical expenses Past economic loss Interest on $50,000 at five per cent for five years Past loss of superannuation contributions Future economic loss Loss of future superannuation benefits Less Workers' Compensation Board refund $ 40,000.00 3,000.00 19,646.20 3,769.70 11,740.00 78,950.50 12,500.00 2,801.00 163,560.00 10,551.20 $ 346,518.60 33,192.41 $ 313,326.19 -- 18 of 18 --