Margaret Joyce Staines v Commonwealth of Australia Sca [1990] ACTSC 19; (1990) 100 FLR 242 (7 June 1990)

SUPREME COURT OF THE ACT

MARGARET JOYCE STAINES v. COMMONWEALTH OF AUSTRALIA
S.C.A. No. 386 of 1985
Negligence
[1990] ACTSC 101; (1990) 100 FLR 242

COURT

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

CATCHWORDS

Negligence - duty of care - breach of duty - standard of reasonable care - hole in grassed area of parkland - question whether evidentiary onus upon defendant to prove system of inspection.

Negligence - duty of care - breach of duty - occupier of premises - duty no longer distinct from general duty in negligence.

Australian Safeway Stores Pty. Ltd. v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479

The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40

Jones v. Dunkel and Another [1959] HCA 8; (1958-1959) 101 CLR 298

Australian Iron and Steel Limited v. Krstevski [1973] HCA 42; (1973) 128 CLR 666

Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155

Henderson v. Henry E. Jenkins and Sons and Another (1970) AC 282

Hampton Court Limited v. Crooks [1957] HCA 28; (1957) 97 CLR 367

HEARING

CANBERRA
7:6:1990

Counsel for the Plaintiff: Mr R. Williams

Solicitors for the Plaintiff: Gallens Crowley and Chamberlain

Counsel for the Defendant: Mr R. Crowe

Solicitors for the Defendant: ACT Government Solicitors

ORDER

There be entry of judgment for the defendant.

DECISION

The plaintiff sues for damages for personal injuries sustained on 22 February 1984 when she put her left foot in a hole at or near Southwell Park Oval at Lyneham, a few kilometres at the most from the centre of Canberra. The defendant admits in its defence that at all material times the area of land known as Southwell Park, of which Southwell Park Oval was (except for an area with which the case is not concerned) part, was unleased Commonwealth land of which the defendant had the care, control and management. The defendant denies negligence and alleges contributory negligence.

2. The plaintiff sued alternatively alleging breach of the duty owed by an occupier. She did not allege in what capacity she came on to the defendant's land, an omission which might have been fatal to that alternative claim. However, the law now is that the duty owed by an occupier is subsumed to the duty to take reasonable care owed to a plaintiff who sues in negligence: Australian Safeway Stores Pty. Ltd. v. Zaluzna [1987] HCA 7; (1987) 162 CLR 479.

3. The particulars of negligence were somewhat prolix. The substantial ones were as follows:
"(g) Permitting a hole to remain recessed in

the ground providing access to the oval
when it knew that the said ground would be
used by her to reach the oval;
(h) Permitting a hole to be recessed in the
ground providing access to the oval when
it knew or ought to have known that the
said hole would create a danger to her;
(i) Failing to take any or any adequate
measures to ensure the ground providing
access to the oval was safe;
(k) Failing to cover or guard the said hole to
prevent injury to her."

4. The plaintiff was the secretary of the Wanderers Junior Hockey Club. On behalf of the Club she had on 17 February 1984 obtained approval for the use of Southwell Park for the purpose of hockey training on the day in question. The occasion was used in fact for the registration of players. The weather was fine and dry. There had been rain some time previously but not within the previous four or five days. The grass though dry was lush and green.

5. At the end of the registration procedure towards 5 p.m., the plaintiff was walking back to her car carrying her seven months old baby on her side. She was wearing sandals with an unremarkable heel about a centimetre high. To get to her car she had to go from the playing field area down a grassy slope to the car park. The slope ended in a retaining wall less than half a metre high which divided it from the gravel car park. She was accompanied by her friend, Mrs Raylee Harvey, and they were talking together. When she was about a metre from the retaining wall, the plaintiff caught her left foot in the hole and fell down. She did not see the hole before she fell. Mrs Harvey and other people who were in the vicinity came to her assistance. When the plaintiff recovered herself she noticed that the hole was about four inches deep and just big enough to contain her entire foot. She gave some conflicting accounts of the measurements of the hole, but I find that it was not much bigger than the size of her foot.

6. After the plaintiff had been taken away Mrs Harvey wondered what it was that had caused the plaintiff to fall. Only then did she notice the hole. She observed it much as the plaintiff described it. The plaintiff said that it had sharp edges, but she did not know if there was anything to indicate whether it was freshly formed.

7. The plaintiff went back to look for the hole some weeks later and found the area freshly mowed. The hole was not found.

8. Both witnesses indicated, and I find as a fact, that the grass in the vicinity of the hole was at least ten centimetres high. Moreover there was grass growing in the hole to a height equivalent to that of the surrounding grass. I further find as a fact that, at least to the casual observer, the hole was not easily discernible immediately prior to the plaintiff catching her foot in it.

9. There was no evidence about how long the general area had been in use for the purposes of a sports oval and other associated recreational activity. In particular, there was no evidence whether the slope in question had been artificially constructed or whether it merely followed the general lie of the land. On the other hand, the small retaining wall had been constructed only a metre or so from where the plaintiff fell. The hole was therefore not remote from where activity had taken place which might have affected the stability of the soil. The slope in question was in use by members of the public going between the oval and the car park and the fact that the grass was more or less of a uniform height suggests that it was mowed on occasions.

10. I conclude that the area where the plaintiff met her injury was not an area of natural bushland on which people could be expected to enter only occasionally. Clearly, there was, given knowledge of the existence of the hole, a foreseeable injury of risk to people who might be expected to be walking between the car park and the playing field. However, I am quite unconvinced that the defendant knew of the presence of the hole. The alternative threshold question may be asked whether it should have known of the existence of the hole. It was submitted by counsel for the plaintiff that if the defendant had adopted a proper system of inspection of its land, then the defendant would have become aware of the existence of the hole, that there was accordingly foreseeability of the risk to the plaintiff and that therefore a duty arose to take positive steps to protect the plaintiff from that risk. In my view, that approach begs the question at least in part, because to apply the test of a proper system of inspection assumes the existence of a duty to inspect. I think that there was a duty of care on the part of the defendant owed to the persons in the position of the plaintiff. It arose from knowledge that should be imputed to the defendant that there might be on the lands occupied by it and around Canberra holes that gave rise to a risk of injury to people likely to be walking in the vicinity. That knowledge may or may not have established a standard of care which required the defendant to inspect and maintain such lands but the exact extent of inspection and maintenance would vary according to the nature of the land and its usage, the likely occurrence and nature of holes and the degree to which people might be exposed to the risk of falling into a particular hole. The real question for determination is whether the defendant failed to meet the standard of reasonable care required in the circumstances. In this respect the magnitude of the risk and the measures required to eliminate, or at least minimise that risk, have to be considered.

11. In The Council of the Shire of Wyong v. Shirt and Others [1980] HCA 12; (1979-1980) 146 CLR 40, Mason J., as he then was, said at p 47:

"In deciding whether there has been a breach of the duty of care
the tribunal of fact must first ask itself whether a reasonable man
in the defendant's position would have foreseen that his conduct
involved a risk of injury to the plaintiff or to a class of persons
including the plaintiff. If the answer be in the affirmative, it is
then for the tribunal of fact to determine what a reasonable man
would do by way of response to the risk. 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 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."

12. The defendant called no evidence, a fact from which any inferences favourable to the plaintiff may more easily be drawn, because relevant matters relating to the nature, care, control and maintenance of the land in question lie particularly within the knowledge of the defendant. (Jones v. Dunkel and Another [1959] HCA 8; (1958-1959) 101 CLR 298).

13. It was submitted on behalf of the plaintiff that the standard of reasonable care required the defendant to subject the area to regular inspection, and it was further submitted that the frequency of inspection should be about once per month. Counsel for the defendant did not strongly argue against those propositions, but submitted rather that the sort of inspection that would have been reasonable in the circumstances would not have been sufficient to disclose the presence of the hole.

14. There is support for the proposition that where reasonable care requires some measure of regular maintenance and inspection, the failure of the defendant to devise, institute or maintain any system of maintenance and inspection at all, will in itself be eloquent of negligence on the part of the defendant: see Australian Iron and Steel Limited v. Krstevski [1973] HCA 42; (1973) 128 CLR 666.

15. There is no question that there were practicable alternative means of minimising danger once it was discovered or should have been discovered, for instance by the use of sand to fill the hole, something which appears to have occurred after the plaintiff's injury. Ultimately, the question is then whether a proper system of maintenance and inspection of the particular area would have disclosed the presence of the hole to the defendant.

16. The bald proposition that a proper system would have revealed the presence of the hole is, in my view, circular. The plaintiff must be able to specify in some way what sort of steps would have constituted a proper system of inspection. Those steps need not be identified with precision, but there must be some indication of what it was that the defendant should have done. Such identification should be made with reference to the nature of the steps themselves and not their object or result. The plaintiff has not sought to identify these steps in any relevant way except by reference to the object or result of discerning the presence of the hole. There is, as I have already indicated, an inference that the area was mowed from time to time. But, in my view, regular mowing was not likely to have revealed the presence of the hole. The evidence suggests indeed that, assuming that mowing took place, the mower passed over the hole. In my view, the hole would not have been readily observable once the grass in it had grown to the level of the surrounding grass. When that occurred it is impossible upon the evidence to say. It is also impossible to say when the hole was formed. Whilst it is unlikely that the hole was merely a natural depression in the landscape, the circumstances of its coming into existence are impossible to determine. Even if it is likely that it was a subsidence, the reason for the subsidence is completely unknown. It is consistent with the evidence that if the defendant had instituted a system of regular inspection, the grass in the hole could have grown to the level of the surrounding grass between inspections and thus made its presence not readily discernible to the naked eye except on very close examination. It was not suggested that any system of inspection other than visual observation would have been appropriate.

17. In Rickards v. Australian Telecommunications Commission (1983) 3 NSWLR 155 the NSW Court of Appeal dealt with a case where the plaintiff as it happened had put his foot in a concrete pit which had been constructed by the defendant but the cover of which had, without the knowledge of the defendant, been broken or dislodged. In applying the two tests mentioned by Mason J. in Shirt's case, Priestley J.A., with whom the other members of the Court agreed, said at p 157 that:

"..... the existence of a pit such as the one
described in the present case involves a risk
which, although it may be very slight, is
foreseeable ... it was imposing altogether too
high a standard to say that there was an
obligation upon the defendant periodically to
inspect the large number of pits in order to
determine whether their lids had become
dislodged or broken."

18. His Honour held further that it could not be said, on any balancing of the factors referred to by Mason J. in Shirt's case, that the obligation to inspect would be one to inspect sufficiently frequently to connect the failure to inspect with the injury that befell the plaintiff. In my view, the remarks of Priestly J.A. are appropriate to the facts in this case as I find them.

19. In deference to the arguments of counsel I should say that I see nothing in Henderson v. Henry E. Jenkins and Sons and Another (1970) AC 282, Hampton Court Limited v. Crooks [1957] HCA 28; (1957) 97 CLR 367 or the Safeway Stores case to support the proposition that there is in this case an evidentiary onus on the defendant to show that it carried out a system of inspection of the land in question.

20. In the circumstances, I am not satisfied on the balance of probabilities that the plaintiff's injury was caused by the failure of the defendant to take reasonable care for her safety and there will be judgment for the defendant.

21. In case it may be of assistance to the parties, I will deal briefly with damages. The plaintiff's credibility on this issue was not challenged. She was born on 24 August 1954. In addition to the baby, she had children aged 10 and 5 years. She was in good health. She was taken to the Royal Canberra Hospital shortly after the injury and found to have sustained a fracture of the medial malleolus of the left ankle. That was treated by open reduction and fixation by a pin. The pin was eventually removed on 6 June 1985. The plaintiff's lower leg was in plaster for about nine weeks after the injury and she was on crutches during this period. She resumed work in May 1984. She used a walking stick until then and possibly beyond. She was off work for another week in June 1985 for the removal of the pin.

22. It appears that it was not until August 1986 that it was discovered that the plaintiff had also suffered a fracture of the mid-shaft of the left fibula, but according to the medical evidence that part of her injury required no specific or extra treatment once the ankle joint had been stabilized by fixing the medial malleolus. The injury to the tibula has healed without complications.

23. The plaintiff had physiotherapy threatment for about six months three times a week. The physiotherapy was painful in the early period. During the first seven weeks the plaintiff required full-time help in the house and for two or three months thereafter she was assisted by another lady for about three hours a day for five or six days a week.

24. The plaintiff is a public servant and apart from the time off work immediately after the injury and in 1985 the injury has not affected her work capacity. It is unlikely to do so in the future except to the extent to which I will make reference in a moment.

25. Unfortunately, the operative treatment to the plaintiff's ankle was not completely successful. The ankle is stiff when she rises in the morning but improves during the day. It is painful at irregular intervals, from every two days to about every two months, and is relieved by tablets. The swelling increases during the day and can lead to pain especially if she drinks quantities of fluids. The movement of her left foot is restricted. She cannot stand with her feet together and finds it difficult to walk in bare feet or over uneven ground. She can walk about a kilometer without discomfort but cannot run at all. She was a very active person before her injury and played tennis about once a week. She cannot play tennis any more. Her present condition will not improve. It may get worse.

26. Loss of wages are agreed at $1,854.00 (after adjustment for sick pay paid by the defendant), and out-of-pocket expenses at $1,432.65. For domestic help I would have awarded a sum based on eight hours help a day, five to six days a week for seven weeks at $8 per hour, a round figure of $2,688.00 together with a figure for approximately ten weeks for three hours a day for five or six days a week, approximately $1,440.00 making a total of $4,128.00 for this aspect.

27. For pain and suffering and loss of enjoyment of life I would have awarded the sum of $25,000.00 as to which I would have awarded $10,000.00 for the past.

28. Interest should be calculated on the past loss of wages and the past component of pain and suffering and loss of enjoyment of life. For this I would have awarded $10,241.66.

29. I would have included a figure of $1,000.00 as a buffer for the possibility that the plaintiff may need to undergo an arthrodesis and that figure includes the cost of the operation and any loss of earning capacity that may flow from it.

30. I would have directed judgment for the plaintiff for $43,656.31 without any apportionment for contributory negligence. There was, in my view, no failure on the part of the plaintiff to take reasonable care for her own safety.

31. I direct the entry of judgment for the defendant.

32. Unless the parties wish to be heard I propose to order that the plaintiff pay the defendant's costs.