William Ronald Williams v Commonwealth of Australia [1987] ACTSC 71 (27 October 1987)

SUPREME COURT OF THE ACT

WILLIAM RONALD WILLIAMS v. COMMONWEALTH OF AUSTRALIA
S.C. No. 1017 of 1984
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Negligence - master and servant - unsafe place of work - wooden chock on stairway - duty of care - no new matter of principle.

Damages - back injuries - pain and suffering - loss of earning capacity - no new matter of principle.

Vozza v. Tooth & Co. Ltd [1964] HCA 29; (1965) ALR 196; 112 CLR 306

McLean's Roylen Cruises Pty Ltd v. McEwan [1984] HCA 43; (1984) 54 ALR 3

Ferraloro v. Preston Timber Pty Limited (1982) 42 ALR 627

Bankstown Foundry Pty Ltd v. Braistina (1986) 65 ALR 1

Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40

HEARING

CANBERRA
27:10:1987

ORDER

There be judgment for the plaintiff in the sum of $283,280.00.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in the course of his employment as a watchman at Parliament House on 18 January 1984. The plaintiff's case is that at about 1.40 am on 18 January 1984 while descending a staircase in the course of his duties he stood on a door chock on the second stair down from the landing and fell, suffering severe back injuries. He has sued the defendant as his employer, alleging negligence in the following particulars:

(a) Allowing a door chock to be on the staircase.

(b) Failing to have a clear staircase.
(c) Failing to have a safe place of work.
(d) Failing to have a safe system of work and of
keeping doors open and shut.
(e) Failing to have a system for controlling doors
which did not involve the use of free moving door
chocks which could be mislaid or misplaced.
(f) Using door chocks instead of a safe system for
controlling the doors.
(g) Failing to have a system whereby door chocks when
not in use were placed in a particular position of
safety.

2. By its defence the defendant has put in issue the facts of the accident, denied negligence and alleged contributory negligence against the plaintiff. At the end of the case the allegation of contributory negligence was abandoned.

3. In the conduct of the trial there was really no dispute that the accident happened as the plaintiff described it in his evidence. He said that it was part of his duty as a watchman to patrol Parliament House and attend to matters of security. He had been doing that work for ten years. At about 1.40 am on 18 January 1984 he was proceeding to descend a staircase leading to the press gallery on the Senate side of Parliament House. He was not holding the handrail and as he put his right foot on the second step he trod on a wooden chock which caused him to fall on to the stairway and down the stairs. The chock was made of wood, measured approximately six inches by one and a half inches, was shaped to a point at one end and, of course, was of much the same colour as the stairs. There are hundreds, if not thousands, of those chocks in use in Parliament House and their use is to hold open various doors. When the chocks are not in use, they remain on the floor in the vicinity of the doorways.

4. In cross-examination the plaintiff said that he regarded himself as an alert watchman and security officer and that it was part of his duty to check lights left on in the building and the whereabouts of the various persons to be found working in Parliament House at night. He said that he was trained in observing what was happening in Parliament House. If he noticed rubbish or spillages on a floor, he would arrange for cleaners to attend to the matter. Similarly, if he saw a door chock in a passageway he would kick it aside. Parliament House had been open to the public the previous day, but the public were excluded, on the plaintiff's evidence, after 4.00 pm. The area of the stairway where the plaintiff fell was well lit at the time of his fall.

5. The plaintiff called Mr Boris Osman, consulting engineer, to give evidence on his behalf. Mr Osman gave evidence about the use of chocks to keep doors open. He said that the prevalence of the use of chocks for that purpose had been reduced considerably over the last 20 years, because they tended to finish up in different locations and in the way of people. He then outlined different ways in which doors may be held open. He said the simplest way was by means of a hook and staple, a sample of which was produced in evidence (Exhibit 3). They have been available for over 50 years and at present they cost in the order of $3. Another method for fixing doors in an open position, according to Mr Osman, is by use of appropriately designed hinges. They are available and not particularly expensive, ranging from $5 to $10 each.

6. He also demonstrated a door stop which can be attached to doors to fix the door either in a fully open or partly open position (Exhibit 4). They have been available for some 40 years. He also gave evidence of a device for keeping chocks or wedges attached to a door by means of a spring attached to the wedge and the door.

7. He said that any of these means of securing doors is just as positive and secure as chocks and eliminates the difficulties of their being lost or misplaced or becoming a hazard to people using passageways and stairs. He said also that if the colour of the chock is the same as the stairs or passageway they can tend to become invisible.

8. Dr Edward Howell, electronics engineer, gave evidence on behalf of the defendant. He was the security controller at Parliament House from 1982 to 1986 and the head of the section in which the plaintiff was employed. He said that in 1984 there were around 500,000 visitors to Parliament House, and 150,000 - 200,000 visitors would use the subject stairs on visiting the public galleries. He said that there were hundreds of door chocks in use in Parliament House throughout his period there and no accidents had ever been reported to him. All watchmen were given courses, with the assistance of the Australian Federal Police, in observation and noting, both mentally and in writing, the results of their observation.

9. He said in cross-examination that there was no system in operation for the safe stowing of door chocks when the doors were shut and the chocks were not holding doors open. He agreed that the plaintiff had a responsibility while on patrol to be on the lookout for people being in places where they were not supposed to be, doors being left open or doors being shut when they should be open. There were all sorts of hazards to be watched, particularly water and fire hazards and intruders.

10. I accept the submission on behalf of the defendant that Mr Osman's evidence is not of much assistance on the issue of liability. In my opinion it is not relevant that other methods of securing doors in an open position might have been adopted at Parliament House. The issue is whether the presence of a door chock on a stairway created a foreseeable risk of injury to people, including employees of the defendant, at Parliament House. The duty of the defendant as the employer of the plaintiff was to take reasonable care to avoid exposing its employee to unnecessary risk of injury.

11. In a case such as the present, for the plaintiff to succeed "it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant reasonably failed to take measures or adopt means reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment" (Vozza v. Tooth & Co. Ltd [1964] HCA 29; (1965) ALR 196; 112 CLR 306 applied in McLean's Roylen Cruises Pty Ltd v. McEwan [1984] HCA 43; (1984) 54 ALR 3 at 7). The High Court recently restated the employer's duty of care in Ferraloro v. Preston Timber Pty Limited (1982) 42 ALR 627 at 629; 56 ALJR 872 at 873.

12. What ought reasonably to be done to avoid exposing an employee to an unnecessary risk of injury depends upon the circumstances. In Bankstown Foundry Pty Ltd v. Braistina (1986) 65 ALR 1, Mason, Wilson and Dawson JJ. restated the following passage from the judgment of Mason J., as he then was, in Wyong Shire Council v. Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-8:

"The perception of the reasonable man's response (to the
risk of injury) 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 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."

13. In my judgment, the presence of a wooden chock on a stairway which was in use all hours of the day and night to varying degrees did present a risk of injury to people using the stairway which was reasonably foreseeable. The risk of injury from someone treading on a chock was real and substantial and could have been alleviated by regular inspection, for instance, when the last members of the public had been excluded from the building or by having some place where the chock for a particular door could be stowed when not in use. In fact the defendant had no system at all. I find negligence against the defendant.

14. As contributory negligence against the plaintiff was abandoned I need not deal with that issue.

15. The plaintiff is 50 years of age, having been born in Camden, New South Wales, on 14 March 1937. He is married and has two grown up children. He left school at the age of 14 1/2 years, ultimately did a bakers' trade course and carried on a business of a bakery in Cobar, New South Wales, for a period of about 10 years. This was a successful business. He started with a small bakery and took over two other small bakeries. He was fully involved in the business as a baker and supervising the building of a new bakery. His wife helped him in the business by doing the books.

16. At the time of the accident he had been employed as a watchman at Parliament House for 10 years. As a result of the fall he ended up at the bottom of the flight of stairs and immediately noticed pain in his lower back and right hip. He radioed for help and was shortly thereafter taken to Royal Canberra Hospital and admitted under the care of Dr R.L. Newcombe, neuro-surgeon. Apart from a CT Scan at the John James Hospital, he remained in Royal Canberra Hospital for about four weeks. His pain and weakness did not improve with bed rest.

17. X-rays of the lumbar spine revealed a first degree lumbar spondylolisthesis at the lumbo-sacral level with narrowing of the L4/5 and L5/S1 intervertebral disc spaces. On 31 March 1984 Dr Newcombe performed a laminectomy of the L5 neural arch with decompression of the fifth lumbar and first sacral nerve roots on both sides, followed by an alar transverse fusion of the L4 and L5 vertebrae to the sacrum. He was discharged home on 10 February 1984 still suffering pain in the lower back and right leg. In the following period he had difficulty walking and caring for himself, such as showering.

18. When reviewed by Dr Newcombe on 8 March 1984 there was some improvement but he still had backache and soreness at the site of the graft donation from the right iliac crest. When reviewed on 21 May 1984 he still had pain in the lumbo-sacral region and some cold sensation with numbness in the right leg and foot. Dr Newcombe diagnosed the initial injury as aggravation of lumbar spondylolisthesis.

19. He was compulsorily retired on the grounds of invalidity on 18 April 1985. He has not worked since the accident.

20. Since the beginning of 1985 he has been attending the Woden Valley Hospital for hydrotherapy and remedial gymnastics, but he has been very slow to improve.

21. To provide better pain relief it was decided by Dr Newcombe to extend the operation previously performed. A further operation was performed on 1 November 1985 where a full laminectomy of L4 was performed in order to expose the L4/5 disc. When reviewed by Dr Newcombe on 17 December 1985 Dr Newcombe noted considerable improvement with some residual pain re-active depression. The plaintiff himself said in evidence that the second operation improved his posture. By April 1986 the plaintiff was walking much better - up to two kilometres per session - and his ability to stand had improved.

22. In his report to the plaintiff's solicitors of 30 March 1987 Dr Newcombe said that the plaintiff was not fit for employment of any kind at that time but that he would probably be able to seek employment, at least on a part-time basis, in the future in a capacity that did not involve heavy lifting and bending. That still appeared to be Dr Newcombe's opinion in September 1987. I shall return to Dr Newcombe's evidence on that subject when I deal with the claim for loss of earning capacity.

23. Not surprisingly, by November 1986 the plaintiff had become quite depressed about his constant pain. He resented what had happened to him and became, as he described, very physical and violent. This was his main problem during 1986. He was seeing his general practitioner, Dr Maureen Bremner of Kambah, and she prescribed anti-depressants because he was not sleeping and had become chronically depressed. He continued to see Dr Bremner every three or four weeks for prescriptions and check-ups. She referred him to Mrs Cecily Parker, psychologist, at the end of 1985. She treated him for depression since the second operation on his back. In her report to the plaintiff's solicitors, Mrs Parker said that psychologically the plaintiff had improved but that because he was relieved of uncertainty about further operations and with the knowledge that he would have to live with his condition, she expressed the opinion that he may become depressed again intermittently but not as overwhelmingly depressed as before. Psychologically speaking, he is quite fit for work. She finally referred him to Dr Alan Merrifield, psychiatrist, initially on 6 March 1986.

24. Dr Merrifield gave the plaintiff therapy in the form of talking about his grieving for the man he was and how he has had to give up and start a new life. Dr Merrifield noted that the plaintiff had a good basic personality structure and would be able to make an adjustment, although that would take some months.

25. By September 1986 he was suffering from neck problems and commenced physiotherapy treatment. The physiotherapist tried all sorts of treatment without success.

26. At the present time the plaintiff fills in his day by going to hydrotherapy at 8.30 am. He then goes home and sleeps for a couple of hours. He does some domestic chores, then goes back to the hospital gymnasium where he does some rope pulley exercises. He is still taking anti-depressants and digesics when necessary.

27. Despite all the physiotherapy the plaintiff's physical state has not improved for some considerable time. The physiotherapist worked on his neck problems in the beginning of this year. His back has been playing up again and his general practitioner suggested that he try a TENS machine (Transcutaneous Electric Nerve Stimulation). There has been no dramatic improvement but the plaintiff told Dr Bremner that the constant background pain had eased.

28. There is no doubt that the plaintiff's back and neck problems are due to the accident and they will continue for some considerable time. He is chronically limited in his daily activities and in pain. He is unfit for work at the present time.

29. Prior to the accident the plaintiff was a very active man in good health. In addition to employment by the defendant he was driving two days a week for Mayne Nickless as an armoured van driver.

30. In his spare time he was involved in the sport of power weight-lifting. In previous years he had been a member of the New South Wales Power Lifting Association and held the records for New South Wales and nationally for power lifting in his class. He has maintained an interest in weight lifting by coaching juniors at a local gymnasium. In addition he was training to run his first marathon, which was an objective that he wished to achieve. In addition he maintained his home, such as lawn mowing, gardening and odd maintenance jobs. In 1985 he was awarded the Queen's Medal for Bravery for his deeds in 1982 when he broke into a burning vehicle and removed the occupants.

31. All of these activities are now denied to him. Likewise he can no longer go fishing, go to clubs, dances and theatre. His previous satisfactory physical relationship with his wife is no longer satisfactory because of pain. He can drive a motor car, having had a special seat fitted at the expense of the defendant.

32. For pain and suffering, interruption to way of life, loss of his chosen vocation, and loss of enjoyment and of the amenities of life, I provisionally assess the sum of $50,000.

33. Certain figures were agreed between the parties. It was agreed that the plaintiff's past net wage loss as a watchman at Parliament House is $62,427.05 and as an armoured van driver, $18,525. The aggregate of these two figures is $81,000 in round figures. I discount that figure slightly to take account of past vicissitudes between the date of accident and the date of trial, and provisionally assess the sum of $78,000 for past wage loss.

34. Income tax paid on weekly workers' compensation payments was agreed at $12,280 and in accordance with the usual Fox v. Wood approach, I provisionally assess the sum of $12,280.

35. As is usually the case, the most difficult head of damages to assess is the plaintiff's loss of earning capacity. It was agreed that the present rate of earning of a comparable employee is $290.73 per week net without overtime, and $315 net with overtime. There were no precise figures put in evidence in regard to his earnings as an armoured van driver, but the parties have calculated future wage loss assuming an earning rate of $95 per week net.

36. The plaintiff is now 50 years of age. I do not think it is appropriate to calculate loss of earning capacity on the basis that the plaintiff will never return to the work force. He has a lot to offer an employer if he can adjust to pain and disabilities. I accept Dr Newcombe's opinion given in evidence that it is possible that the plaintiff could get back to some sort of employment within two to three years. The type of employment would probably have to be a sedentary job that permits him to move about and indeed he would probably need a sympathetic employer.

37. There was evidence from the defendant that it proposes to introduce rotating shifts of 24 hours in the near future for staff employed at Parliament House. It was submitted that in these circumstances an employee such as the plaintiff would not be able to take a second job. I do not think that that is necessarily correct. It may be that such an employee could not do the work of an armoured van driver. I think, however, that if the plaintiff were fully capable he would find some sort of a second job to supplement the fairly modest wage he would earn at Parliament House.

38. Assuming an earning rate of $400 per week net, the lump sum necessary to compensate the plaintiff for loss of earnings to age 60 years, discounted at 3% with no allowance for interest on the principal sum, is about $180,000. I think the plaintiff is likely to get back to some sort of job which will produce income, even if that takes the form of some sort of self-employment. Doing the best I can, and using that figure of $180,000 as a guide, I provisionally assess the sum of $120,000 for loss of earning capacity.

39. There is a claim for future medical expenses. The evidence is that it is costing the plaintiff at the present time $9.50 per week for medication. I think it is reasonable to allow that sum for say the next five years. I provisionally assess the sum of $2,500 for future medical expenses.

40. There is a claim for house alteration and maintenance. The claim was particularised in a statement of particulars delivered by the plaintiff to the defendant and totals $816. There appear to me to be some elements of exaggeration in the details of the house alteration and maintenance. I think it is reasonable to allow the sum of $500.

41. There is also a claim for provision of domestic services by the plaintiff's wife. In his initial period at home following the first operation, she helped him with his daily toilet and in the first couple of months she had to do most things for him. She still has to assist him on a daily basis and estimates that it takes her a couple of hours a day. If she had not been available to provide those services expense would have been incurred in providing them. In the absence of evidence of the cost of those services, I find it difficult to assess the value of services by way of nursing or housekeeping provision. Nevertheless, I am satisfied that the services have been provided by the wife and to some extent will have to be provided in the future. I provisionally allow the sum of $5,000 under this head.

42. For the purposes of calculating interest, I apportion the general damages as to $30,000 to the past and $20,000 to the future. I also take account of the fact that the plaintiff has received by way of workers' compensation the sum of $30,256.31 net. The amount to be taken into account for interest purposes in respect of past economic loss is therefore $30,000 in round figures. Applying the usual rate of 14% to $60,000 since the date of accident and then halving the result to take account of the fact that the loss was not all suffered at the one time, the figure yielded is approximately $15,000 and I assess that amount for interest.

My provisional assessments therefore are:
General damages $ 50,000.00
Past economic loss 78,000.00
Fox v. Wood component 12,280.00
Loss of earning capacity 120,000.00
Future medical expenses 2,500.00
House alteration and maintenance 500.00
Provision of domestic services 5,000.00
Interest on past general damages
and past economic loss 15,000.00
Total $283,280.00

I have considered that figure as a global sum and confirm my provisional assessments.

43. There will be judgment for the plaintiff in the sum of $283,280. I shall hear counsel on the question of costs.