Cecil v Property Unit Nominees (No 3) Pty Ltd [1992] QSC 275

() r I \ , '-._/ \ .J· '~ TRANSCRIPT OF PROCEEDINGS State Reponing Bureau, 4th Floor, The Law Court..~. George Street, BRJSBA.i'\lE. 0. 4000 Tel. (07) 227.4360 (Copyright in this tran..'Cript is vested in the Cro..,."ll. · Copies thereof must not be made or sold ""·ithout the wrinen authority of the Director, State Reporting Bu..reau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION HELMAN AJ No 154 of 1988 DENNIS GREGORY CECIL and PROPERTY UNIT NOMINEES (N0.3) PTY LIMITED BRISBANE .. DATE 25/6/92 .. JUDGMENT Plaintiff Defendant 1 -- 1 of 19 -- -------- --- 250692 JUDGMENT HIS HONOUR: Gentlemen, I have considered this matter and come to the conclusion there should be judgment for the plaintiff for $703,754.15. I will hand you a copy of my reasons. HIS HONOUR: These will be the final orders. There will be judgment for the plaintiff against the defendant for $703,754.15 together with interest in the sum of $36,944. () I order that the defendant pay to the plaintiff his costs of and 1ncidental to the action to be taxed on a solicitor and client basis. ( ) () I 50 JUDGMENT 60 2 ___ _j -- 2 of 19 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: . AND: CATCHWORDS: Counsel: Solicitors: No. 154of1989 DENNIS GREGORY CECIL Plaintiff PROPERTY UNIT NOMINEES (NO. 3) PTY. LIMITED Defendant REASONS FOR JUDGMENT - HELMAN A.J. Delivered the 25th day of June, 1992 Negligence - occupiers' liability - personal injury Mr. S.C. Williams Q.C. and Mr. A. Williams for the plaintiff Mr. R. Mulholland Q.C. and Mr. D. North for the defendant Messrs. Phillips Fox for the plaintiff Messrs. Mcinnes Wilson & Jensen for the defendant Hearing dates: May 13, 14, 15 and 18, 1992 -- 3 of 19 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: No. 154 of 1989 DENNIS GREGORY CECIL Plaintiff PROPERTY UNIT NOMINEES (NO. 3) PTY. LIMITED Defendant REASONS FOR JUDGMENT - HELMAN A.J. Delivered the 25th day of June, 1992 This action arises out of an incident that occurred at about 2.46 a.m. on February 28, 1987 in a building in Queen Street, Brisbane called the Wintergarden Centre. The plaintiff fell over the side of a stationary escalator 7.2 m. to a floor two levels below the place from which he fell. He was severely injured and claims damages for negligence against the defendant which he alleges was the occupier of the relevant parts of the building. The action is framed in the statement of claim as one in contract or tort, but was treated throughout the trial by both parties as being in tort only. The top of the escalator from which the plaintiff fell is shown in a photograph which is contained in a report on the incident which was made by Mr. Kenneth Leslie King, road and occupational safety and ergonomics consultant, which was admitted as exhibit 2 - photograph no. 1 on p. 1 5 . There are two escalators side by side going from the third level, which is what is shown in the photograph, to the second level at an angle of thirty degrees to the horizontal. Underneath those escalators is another set of two going from the second level to the first. -- 4 of 19 -- 2 The escalators go down into a void, part of an atrium in the centre of the building. From the top of the escalators on the third level and looking across the void one can see the New Orleans restaurant at which the plaintiff had been dining before the incident. From an admission made on behalf of the defendant at the beginning of the trial and from the evidence in Exhibit 1 I am satisfied that at the material time the defendant was the occupier of the New Orleans restaurant and of the area of the building in which the escalators are. There is nothing unusual about the escalators. They comply with all relevant building standards and legislation relating to escalators. There was no suggestion that on the day the plaintiff fell they were not properly maintained or cleaned. The treads were approximately 950 mm. vertically below the handrail measured from the nose of the tread, the precise distance varying slightly with the position of the tread on the escalator. The perpendicular distance of a tread from the handrail was of course shorter. It was approximately 890 mm. The New Orleans restaurant stayed open until the early hours of the morning in question. The practice of the defendant, followed on this day, was to cause the escalators to be turned off at 1.00 a.m .. Two places remained open for business in the Centre: the New Orleans restaurant on the third level and a tavern on the lower level. No lights were turned off in those areas still open to the public, including the third level. Those areas were well lit. Throughout the night and after 1.00 a.m. people in various stages of intoxication were in and about the -- 5 of 19 -- 3 Centre. When the escalators were turned off no sign or warning of that fact was erected and no barrier was put across the entrance to the escalators on the third level. From the second level access could be gained to the Queen Street Mall. The practice of the defendant was to stop the escalators from the second level to the first level at 5.00 p.m., at the close of business for the shops in the Centre, and a "no entry" sign and chain were put in place to prevent their being used. There were lifts in the Centre which continued to run after 1.00 a.m. but there was no sign visible to a person leaving the New Orleans restaurant indicating that access could be gained to them from the third level. The position of the doors to the lifts on the third level is indicated by black arrows on photograph no. 5 on p.17 of exhibit 2. They were close to the top of the escalators on the opposite side of the void from the restaurant but not clearly visible from it. The plaintiff, a salesman then 188 cm. tall, had been discussing business with associates from about 6.00 p.m. on February 27. From about 6.00 p.m. to 9.00 p.m. he drank at least ten ordinary light beers and ten 1 0 oz. glasses of beer at Lennons Hotel. He had nothing to drink before 6.00 p.m. and nothing between 9.00 p.m. and 10.00 p.m when he was at an office in the Myer Centre. At about 10.00 p.m. he went with some of his business associates to the New Orleans restaurant. He gained access to it by an escalator from the second level, which was then moving. At the restaurant he ate a steak and drank five or six 10 oz. g;Lasses of light beer and four or five glasses of -- 6 of 19 -- 4 vodka and coca cola. He was drinking alcohol up to the time he left the restaurant, which was about 2.40 a.m. By that time he felt some effect from the liquor he had drunk, but was, he said, in full control of his faculties. He felt tired. By the time of the plaintiff's leaving the restaurant the party had dwindled to three: Mr. Neville Henry Imhoff, Mr. Donald Reid, and the plaintiff. The plaintiff left just before the others. Mr. Imhoff said that as far as he could see the plaintiff was fully in control of his faculties when he left the party. After leaving Messrs. Imhoff and Reid the plaintiff went out of the restaurant and spoke to Mr. Garth Shane de Bruin, then a security officer in the building, in the security room near the entrance to the restaurant. The door to it can be seen on the top right of photograph no. 1 on p.15 of exhibit 2, to which I have referred before. The plaintiff spoke to Mr. de Bruin for three to four minutes about the security system. It was apparent to Mr. de Bruin that the plaintiff had been drinking alcoholic drinks, and he noticed high and low "tonings of voice, slowness of eyelids, tiredness, I suppose, but that's all". There was no indication of a significant degree of intoxication. He did not recall seeing the plaintiff sway. He could not remember "how the speech came out". After the brief conversation, the plaintiff left the security room and walked to the escalators. Not noticing that the escalators had been stopped, the plaintiff, who was wearing leather shoes, took one or two steps on the right hand escalator. He walked onto the escalator as he ordinarily walked onto an escalator. He was moving at an -- 7 of 19 -- 5 ordinary walking pace. He found himself off balance, lurched, put his left hand out to try to regain his balance but was unable to do so and fell to his left over the handrail to a place on the first level below the space between the escalators from the second level to the first level. The plaintiff was not "fooling about" when he stepped on to the escalator. He did not attempt to slide down the handrail. Messrs. Reid and Imhoff were walking down an escalator in front of the plaintiff when he fell. Mr. Reid was in front of Mr. Imhoff. Mr. Imhoff did not see the plaintiff fall, all he could say was that he heard something and saw something out of the corner of his eye- "some sort of flash or something". Mr. Imhoff was then between the top and halfway down the escalator. No other witness saw the fall. The plaintiff lay where he had fallen, semi-conscious. There is conflicting evidence from the two security officers on duty in the building on that morning as to the exact position in which the plaintiff was found. Mr. de Bruin said he was a body's length from the base of the escalators with his head near the base of the escalators. Mr. Douglas Maxwell Macintosh said he was about "halfway or slightly towards the base of the escalator" with his feet "closer to the foot of the escalators". Each saw blood stains at different places on the escalators above. The security officers agree, however, that the plaintiff was lying below the space between the escalators. Dr. John Brendan Lynch, Government Medical Officer and neurologist, gave evidence that about the time of the fall the plaintiff's blood-alcohol level would have been approximately . 05 _____ I -- 8 of 19 -- 6 per cent., given the consumption to which I have referred. With that blood alcohol level his general appearance, behaviour, and muscle co-ordination would all have appeared perfectly normal in clinical tests. The riser heights on an escalator vary at the top and the bottom whether the escalator is moving or stationary. An example of this can be seen in measurements recorded by Mr. King in his report: the first fully exposed tread was level with a partly exposed one before it, the second fully exposed tread fifteen mm. below the level of the first fully exposed one, the next one 136 mm. below that, and then with the next one the maximum descent riser was reached. Two well-qualified experts were called on the subject of stairs, escalators and the dynamics of human movement down them: Mr. King and Dr. Frank William Grigg, a chartered engineer. The danger constituted by a stationary escalator is neatly and completely summarized in the following passage in the cross- examination of Dr. Grigg by Mr. S.C. Williams Q.C. for the plaintiff:- "You would agree with me that there is potential for a trip and a slip when entering on to an escalator? -- Yes. If you were called upon to look at a set of stairs designed and built in the way a stationary escalator appears, but used as stairs, would you condemn them? -- Yes. Do they comply with the Building Act or any standard for stairs? No. They are dangerous, are they not? -- Yes, they would be, if they are stairs. Is not a stationary escalator open and available and used as stairs, a set of stairs?-- Yes, it is, but I think everybody who's ever used an escalator knows they are not the same as a set of stairs when they are stopped. -- 9 of 19 -- 7 When one sees a set of stairs, one has certain body movements when descending stairs which are facilitated by stairs within the parameters of the Building Act and the codes; is that so?-- Sorry? I will put that another way. I put it badly. There are certain movements involved in descending stairs that the human body accommodates reasonably well, such as putting one's foot forward a certain distance, going down a certain distance and repeating that as one walks down a set of stairs. If one creates overly wide treads - that is goings or overly large rises, then the human body has difficulty, mechanically, accommodating a set of such stairs; is that so?-- Well, perhaps I can shorten the thing by just explaining what I believe are the principal aspects of stairs. The height of the riser and the amount of the going that are standardised are, if you like, compromises for the variability of the population. If you go back in the history of stairs, the person who worked out what he thought were good proportions was a Frenchman back in about the 1700's and he basically said a typical step length is - I mean, a stride is a certain amount. If you then have to lift your foot up a certain amount, you have to shorten your stride and he came up with a ratio of riser height to tread line that architects used for many years, but I believe the fundamental point still remains; a tall person is likely to take a bigger stride and is likely to accommodate greater proportions in the steps fairly readily. The thing that catches most people out is a change in the proportions and even the castle builders in history used to put in deliberate changes in riser heights and treads because people would fall over and they would hear them in the night and they would know there was somebody intruding." (transcript, p.242). The dangers of a stationary escalator for those who fail to see that it is not moving is that danger exploited by "the castle builders in history" - the variation in riser heights, at the extremities. It seems obvious that the danger would be greater at the top for someone going down than at the bottom for someone going up. A fall up an escalator presumably would generally speaking have less serious consequences than a fall down one. The plaintiff was a person who was in the habit of walking onto escalators and then continuing to walk. My conclusion as to what happened on the day in question is that the plaintiff, with his senses dulled somewhat by alcohol and fatigue, stepped on the --- ... 1 -- 10 of 19 -- 8 escalator without noticing that it had been stopped since he came into the building on his way to the restaurant. He then almost immediately lost his footing at the top of the escalator because of the variation in riser heights. He tried to retrieve his balance, but, because of his height and the instinctive movement he had made in an effort to retrieve his balance, achieved a force of sufficient moment to overcome the effect of other forces acting on his body and so cause him to topple over the rail. In my opinion there was a real risk that someone in the plaintiff's condition could lose his footing and suffer injury on the escalator after it had been turned off, and that risk was reasonably foreseeable by the defendant. A notice warning that the escalators were stopped and reminding people to use them with caution, or a chain across the entrance coupled with a notice directing people to the lifts, would have been simple, inexpensive precautionary measures. The failure of the defendant to take precautions of the sort I have referred to was in my opinion negligent. Much of the argument advanced to me on behalf of the defendant was to the effect that it was not reasonably foreseeable that someone would fall over the side of the railing of an escalator. It would appear to me that it was reasonably foreseeable, as I have said, that someone could lose his footing on an escalator, particularly on that part of the escalator where the riser heights were uneven, and that that person could then fall and be injured. The precise manner in which injuries would be suffered, whether the person would be more likely to fall down the escalator steps or to fall over the side, is not to the point -- 11 of 19 -- .9 I think. It is not necessary for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable, but he must show that injury from a fall to a class of persons of which he was one might reasonably have been foreseen as a consequence of the defendant's carelessness {see Chapman v. Hearse and Anor. (1961) 106 C.L.R.112, and Hughes v. Lord Advocate [1963] A.C.837). That in my opinion he has done. I am not satisfied that the plaintiff was guilty of any contributory negligence. In the fall the plaintiff suffered a compression fracture of the eighth and ninth thoracic vertebrae and a fracture of the left forearm and a scalp laceration. The fracture of the left forearm and the scalp laceration have healed without permanent after- effects, but the fracture of the thoracic spine has resulted in permanent paraplegia below the eighth thoracic vertebra. The plaintiff was immobilised for about six weeks. He was then allowed to begin mobilisation and was placed on a full programme of physiotherapy and occupational therapy. His bladder was paralysed from the outset and was initially emptied with an in-lying urethral catheter. That was subsequently changed to intermittent catheterisation and eventually he learned the technique of intermittent clean self-catheterisation. By that method he is able to empty his bladder by inserting a catheter under surgically clean conditions every four hours, night and day. When that method of bladder management is practised correctly the urine is maintained bacteriologically sterile and any risk of renal infection and damage is minimised. The plaintiff is able to practise the technique satisfactorily and there should be no -- 12 of 19 -- 10 kidney or bladder disorder for the duration of his life provided he continues to follow the procedure properly. He causes his bowels to move by the use of suppositories every second day. The plaintiff's paraplegia is complete. He has no feeling below the level of the nipples. There has been no neurological recovery since his discharge from hospital on June 3, 1987, and none can be expected in the future. His life expectancy will probably be unchanged as a result of the fall provided he follows the procedure of intermittent clean self-catheterisation and provided he is careful to ensure that proper steps are taken to avoid pressure sores. The plaintiff has suffered a significant degree of physical pain as a result of his fractures. He has permanent neuropathic pain as a result of scarring of the spinal cord. It takes the form of a burning pain in both legs below the knees. It is constant and persistent and not responsive to treatment. He has a dull ache from time to time in his lower back and suffers from spasms from time to time. His stomach is sensitive to the touch at the level of the spinal fracture. He suffers from sexual dysfunction without any form of physical sensation associated with the genital organs. The plaintiff will require at least one wheelchair and preferably two, so that one can be used when the other requires repair and also so that one can be kept in his motor vehicle to reduce the frequency with which a chair has to be loaded into and out of the vehicle. He requires a suitably adapted hand- controlled car. His house will require modification to meet his -- 13 of 19 -- 11 special needs and he will require assistance at home for jobs that he is unable to undertake. After his discharge from hospital, approximately five years ago, his wife and later his mother have helped him with household chores and shopping. His father has also helped him with jobs in the house. The plaintiff will require bacteriological examination of the urine four to six times a year to check for infection. Those examinations could be carried out by a general practitioner. Ultrasound examination of the upper and lower urinary tract will be required for surveillance of kidney function. That can be carried out biennially when normal function and anatomy of the upper and lower urinary tract can be seen to have been maintained by yearly examinations. The plaintiff will probably require treatment in hospital from time to time, as most paraplegics do. To date, however, he has managed his condition well and has not required hospital treatment. The plaintiff was born on June 11, 1948. He left school at the age of sixteen years and then attended night school. He began an apprenticeship as an electrical fitter mechanic, completed three years of the apprenticeship, but failed the examinations. He has worked as a welder, as a member of a seismic crew, a stove tester, a burglar alarm installer, a photocopier technician, and as a salesman of burglar alarms, automatic doors, weather seal and concrete additives, and building automation systems. He was employed as a salesman of building automation systems at the time of his fall. He was in employment at all times after he left school apart from a short period of unemployment about five or six years before the fall. About seven months after the fall he J -- 14 of 19 -- 12 returned to work with his pre-fall employer, Lytmo, and remained for about eight months. He could not do his work satisfactorily. The main difficulty was access to the clients. He then worked for about ten months for an employer called Campbells Security organizing service calls and as a storeman, but left that J employment when Campbells Security moved to another building which had no access for him. Since then he has had no regular employment but has been writing software on his own. He receives an invalid pension. The plaintiff is interested in computers and has completed two six-week Technical and Further Education courses in computer programming. He has written computer programmes and has earned $6,000.00 to $7,000.00 from the sale of programmes. He is able to do that at home. He proposes to try to enter the field of video imaging which would result in his selling hardware and programming and selling software. He sits at his computer for two to four hours at a time and then lies down for thirty minutes to one hour to stretch his legs out and "get the spasms sorted out". The plaintiff lives alone at Yeronga in the former matrimonial home, his wife having left him three years after the fall. They were divorced in about November last year. She lives apart from him with the children of the marriage, a son and a daughter. He attributes the breakdown of his marriage to his fall. He would like to have a permanent association with a woman. He has a number of friends with whom he continues to associate. He goes to the Yeronga Football Club a few nights a week. The injury to the plaintiff's spine has been seriously disabling and painful and will remain so. I assess his damages -- 15 of 19 -- 13 for pain and suffering and loss of amenities at $130,000.00: $30,000.00 for the past, and $100,000.00 for the future. The plaintiff's earning capacity has been impaired. Before his fall his weekly income, after the deduction of income tax, was $480.00 per week (a salary of $26,000.00 per annum before income tax together with a fully maintained motor vehicle available for private use). Had he been able to continue as a salesman he would now be capable of earning about $35, 000.00 per annum before income tax together with commission and a motor vehicle the val-ue of which to him would be about $6,000.00 per annum - say a total of $45,000.00 per annum before the deduction of income tax. That $45,000.00 per annum would give him $865.00 per week before tax and $600.00 per week after the deduction of income tax (see Exhibit 24 which shows the deduction from $865.00 would have been $264.85 with the general exemption). Averaging $480.00 and $600.00 over the period since the fall I arrive at $540.00 for the 5.3 years, giving a total figure of $148,824.00. From that must be deducted $39,864.77, his earnings since the fall- see Exhibit 10. Allowing for other contingencies I arrive at $100,000.00 as my assessment of the impairment of the plaintiff's earning capacity to trial. I assess future impairment of earning capacity at $225,000.00. Had it not been for the fall the plaintiff would at present be capable of earning $600.00 per week after the deduction of income tax. In the 5.3 years since the fall he was able to earn nearly $40,000.00 or approximately $7,500.00 per year. He said in evidence that he hoped to be able to earn $20,000.00 per annum profit before tax out of a new career in video imaging. -- 16 of 19 -- 14 Bearing in mind the physical and commercial difficulties the plaintiff faces I think his earning capacity should be assessed at $200.00 per week after the deduction of income tax. The plaintiff is now forty-four years old, so that a working life of about twenty years appears to me to be appropriate. Applying the five per cent. tables to the $400.00 I arrive at $266,400.00. Taking into account discounting factors I reach my assessment of $225,000.00. The plaintiff requires modifications to his house. The parties have agreed on $40,000.00 as the appropriate sum for that item. The plaintiff has required and will continue to require help with household chores and shopping and in the garden. He is entitled to an item in his award based on the principles explained in Griffiths v. Kirkemeyer (1977) 139 C.L.R.161. The parties have agreed on $7.50 per hour as the appropriate rate . for those services in the past and $10.00 per hour for the future. His need for those services has been and will continue to be six hours per week I conclude. In the future the plaintiff will require the services of someone to mow his lawn, the present cost being $6.00 per week. In addition he will require gardening, which I assess at the same rate. Gardening and mowing are done at present by the same person (see exhibit 9, p.9) who charges $18.00 per hour. In my view, it is reasonable to assess his needs at an average of one visit every three weeks for mowing and one visit every three weeks for gardening. For past services I arrive at $11,700.00 ($7.50 multiplied by six then by fifty-two then by five). For the future the sum will be $55,000.00. Applying the five per cent. tables to -- 17 of 19 -- 15 $72.00 per week for thirty years gives $59,184.00, which I reduce to $55,000.00 to allow for contingencies). The plaintiff will require drugs for the rest of his life, aids such as a wheelchair and other equipment, and hospital and medical treatment. His weekly needs for drugs and associated equipment I assess at $48. 11 : $28.65 as agreed by the parties for penthienate bromide, $2.24 as agreed by the parties for hexamine hippurate, $2.88 for Surgilube lubricating jelly, $2.50 as agreed by the parties for Duralax suppositories, $2. 59 for Coloxy suppositories, $L 50 as agreed by the parties for surgical gloves, 79c for catheters, $5.00 as agreed by the parties for hibitane, and $1.96 for plastic bags. For aids I assess his needs at $22.23 per week made up of $10.40 per week as agreed by the parties for a wheelchair and wheelchair equipment, $3.60 for hygiene equipment, $4.73 for transport and $3.50 for bedding. He will require hospital and medical treatment from time to time. I assess his weekly needs at $57.50: $50.00 for hospitals and $7.50 for medical attention. Adding the $48.11, the $22.23 and the $57.50 I arrive at $127.84 which over thirty years, applying the five per cent. tables, gives $105,084.00, which I reduce to $95,000.00 allowing for contingencies. The parties have agreed on a number of i terns of special damages: $120.00 for hospital pharmaceutical charges, $22,616.00 for the Princess Alexandra Hospital, $1,080.00 for mowing, $95.00 for sheepskins, $25.00 for a shower attachment, $450.00 for a -- 18 of 19 -- 16 Jason recliner chair, $550.00 for travelling expenses, $16,879.10 for medical and other expenses paid by the Workers' Compensation Board, $3,500.00 for modifications to his home by reason of his disability, and $1,739.05 for the item recoverable on the principles explained in Fox v. Wood (1981) 148 C.L.R.438. Those items come to $47,054.15. The plaintiff in addition claims $4,000.00 for modifications made to his parents' beach house to allow him better access to parts of it. It appears to me that that item is outside the area of expenses that a defendant can reasonably be expected to bear. While alterations to the plaintiff's own residence have ·been accepted I think it is too much to expect a defendant to contribute to those in a house of his relatives. I disallow that item. There will therefore be judgment for the plaintiff for $703,754.15. I shall hear further submissions on the subjects of interest and costs. -- 19 of 19 --