Jodie Alice Druett v Mccoy Brown Investments Pty Ltd (Formerly Private Bin Pty Ltd) [1997] ACTSC 102 (12 December 1997)

SUPREME COURT OF THE ACT

JODIE ALICE DRUETT v McCOY BROWN INVESTMENTS PTY LTD (formerly Private Bin Pty Ltd)
No. SC 415 of 1994
Number of pages - 5
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

NEGLIGENCE - Occupiers Liability - Plaintiff slipped on floor of nightclub - Breach of duty of occupier to maintain premises in safe condition - No issue of principle.

DAMAGES - Assessment - Personal Injury - Plaintiff slipped on floor of defendant's nightclub - Fractured leg requiring operative procedures and insertion of screws - Scarring on leg - Need for further operation in future - Minor residual disability - No Issue of Principle.

HEARING

CANBERRA, 24 November 1997 (hearing), 12 December 1997 (decision)

12:12:1997

Appearances

Counsel for the Plaintiff: Mr R Crowe

Instructing Solicitors: Carmody Crampton

whose agents are:

Maliganis Edwards Johnson

Counsel for the Defendant: No appearance

ORDER

Order:

1. Judgment be entered for the plaintiff in the sum of $49,102.26.

2. The defendant pay the plaintiff's costs.

DECISION

MASTER CONNOLLY

This is a claim for damages for personal injuries arising from an incident which occurred on the evening of 6 August 1993 when the plaintiff attended the premises of the defendant in Canberra. She slipped and fell on a wet area of floor in the bar area of the defendant's nightclub, and broke her leg. She commenced these proceedings against Private Bin Pty Ltd as the occupier of the premises and operator of the nightclub where the accident occurred. This company has been placed under administration, and on 7 July 1997 I made the appropriate order to permit the matter to proceed to a hearing.

The defendant was not represented at the hearing of this matter on 24 November 1997. Counsel for the plaintiff advised me that the defendant company had changed its name to McCoy Brown Investments Pty Ltd, and tendered a company extract prepared by the Australian Securities Commission to document this name change. I gave leave to amend the pleadings to reflect the change in the name of the defendant company, and the defendant was called outside the court, both in the original and current company names, with no appearance.

Counsel for the plaintiff tendered a letter to the receiver manager of the defendant company dated 25 September 1997 from the plaintiff's solicitors advising them of the hearing of this matter on 24 November 1997, and a letter sent on 17 November 1997 by registered post to Mr Peter McCoy, a director of the defendant company, also advising that the matter would proceed on that date.

The previous solicitors on the record for the defendant had been granted leave by the Registrar to cease to act on 21 July 1997.

In circumstances where a matter is set down for trial and there is no appearance by a defendant, Order 38 Rule 10 of the Supreme Court Rules provides that

"If, when a trial is called on, the plaintiff appears, and the defendant does not appear, then the plaintiff may prove his or her claim, so far as the burden of proof lies upon him or her."

The matter proceeded to hearing on this basis.

The jurisdiction of the Master does not of course extend to all personal injuries claims where liability is in issue. No order has been made in relation to this matter, but I was advised by counsel that the matter was brought before me pursuant to Order 61A Rule 1(f) which provides that the Master may exercise the jurisdiction of the Court in trials and hearings of matters which if commenced in the Magistrates Court would have been within the jurisdiction of that Court. Counsel indicated that the claim was brought on this basis, and accordingly may proceed before me.

The plaintiff was born in November 1972. She completed her education to Year 12 at Young in New South Wales, and gained admission to the accountancy course at the University of Canberra, where she commenced her studies in 1991. This is a three year degree course, but the plaintiff failed some subjects in her first semester, and so had to repeat these, putting her course of studies back a year. She lived with a group of friends in a unit at Bruce in the Australian Capital Territory.

On the evening of the accident the plaintiff had consumed a few drinks at home, and then went, with a group of friends, to the Private Bin at about 10.30 that evening, where she met up with other friends. She said that she consumed some more alcohol at the bar, but was only mildly affected by alcohol. The plaintiff has no clear recall of the accident, and can only recall standing and talking with friends, and then being put in a taxi to return home with a very sore leg.

Ms Belcher was a friend of the plaintiff's who was present on the evening in question, and she gave evidence of the accident. She said that she had been a regular patron of this nightclub and bar over the years. At the time of the accident she was 3[Omega] months pregnant with her first child, and had not consumed alcohol. She had had dinner with her husband, and then attended the Private Bin around 11.30 pm to meet up with their friends, including the plaintiff. She said that she noticed that the floor was wet with spilt alcohol, and that there was also broken glass and cigarette debris on the floor. She herself slipped, and noticed "black scum" on her dress and hands. She said that the floor in the bar area was normally in this condition, and that in her time at the Private Bin she had never seen anyone clean up the floor area. She said that another friend, and the plaintiff, had slipped on the floor on this evening before the accident.

Ms Belcher said that the plaintiff had consumed alcohol on this night, but had said that she had had enough, and had stopped drinking. Ms Belcher said that the plaintiff was not drunk. She described the plaintiff

"...just dancing around..."

when she lost her footing on the damp area, and her feet slipped out in front of her. Ms Belcher said the plaintiff fell heavily, and her leg

"...sort of twisted around."

She said that the plaintiff was knocked out, and Ms Belcher and a young man assisted the plaintiff out of the bar. The plaintiff revived, and everyone thought that she had twisted her ankle. Ms Belcher assisted in calling a cab, and helping the plaintiff to get in, and sent her home.

The plaintiff's case is that the defendant was negligent in that it failed to warn the plaintiff of the presence of slippery substances on the floor, failed to have in place a system to adequately clean the floors of the bar, or at all, failed to properly supervise the uses of the bar area so as to avoid liquid or other substances being dropped to the floor or at all, and failed to construct and or install a floor surface which was safe for the plaintiff to walk upon. The defendant denied negligence, and pleaded contributory negligence by alleging that the plaintiff did not watch where she was walking, and failed to have regard for her own safety.

Where a defendant does not attend and a matter proceeds in their absence pursuant to Order 30 Rule 10, the plaintiff must establish those matters on which they bear an onus of proof. It is thus necessary for the plaintiff to establish negligence. It is for a defendant to establish any allegation of contributory negligence, and of course in a matter where the defendant does not appear, such an allegation is not made out.

The plaintiff says that the evidence of Ms Belcher is sufficient to establish negligence, by showing that the defendant conducted their business in such a way that allowed spilled alcohol and other matter to accumulate on the floor of a busy bar area, and that no efforts were made to clean this area. Counsel for the plaintiff referred me to the decision of Higgins J in Kelly v Lend Lease Retail Pty Ltd ( 1993) [1993] ACTSC 34; 113 FLR 21 where, at pages 24 and following, His Honour set out the law concerning slippery floor cases in this Territory. I respectfully adopt His Honour's analysis, and therefore conclude that, while the mere presence of a hazard on a floor rendering it slippery will not establish liability, there is a duty on an occupier of premises to be conscious of and take reasonable steps to avert injury by slipping and falling to those persons that the occupier knows or ought to know will use the floor.

In the present case the evidence establishes that there was a considerable amount of slippery material on the floor in the bar area of the nightclub, and that a regular patron had never observed efforts made to clean this area during the period of trading. In Kelly Higgins J said that the duty of care would be relevantly breached and liability established where, if it appears that no reasonable system for inspection and cleaning of the floor was in place having regard to expected hazards, it may be inferred that it is probable that if such a system had been in place then the fall would have been avoided. I am satisfied that the evidence in this matter establishes that the defendant failed to maintain a system of cleaning and so breached its duty of care. Accordingly, I find liability made out.

The plaintiff's claim for damages is primarily in respect of general damages for the pain and suffering experienced in this accident. A modest claim for economic loss is also brought, on the basis that the plaintiff was, as a result of this broken leg, prevented from taking part in part time employment from the date of the accident until University resumed in March 1994. A claim was originally particularised for a loss of a year's earnings as an accountant premised on the claim that the accident put the plaintiff's studies back by a year. Counsel for the plaintiff indicated that this aspect of the claim would be abandoned, on the basis that the plaintiff had failed some subjects before the accident, and so in any event would have been required to repeat these subjects and thus add a year to her course. This was a proper concession. The plaintiff did in fact successfully conclude her university studies, and has found employment as an accountant in the ACT Government Service.

The plaintiff was assisted to her bed when she returned home, but woke in extreme pain the next morning. Her flatmates summonsed an ambulance, and the plaintiff was taken to Woden Valley Hospital, where she was diagnosed with a fracture of the tibia distally with a proximal fracture of the fibula in the right leg. She was taken to theatre and the fracture was reduced and fixed with screws under general anaesthetic. She spent 5 days in hospital, before being discharged home on crutches.

The plaintiff returned to her parents home at Young during the initial period of her convalescence, but was able to resume studies with some inconvenience. Her plaster was on for some two and a half months, and she commenced a course of physiotherapy. She was able to resume part time employment when the University year began again in March 1994.

The plaintiff has been left with a scar of about 15cm at the site of the fracture. She still experiences some discomfort from the presence of the screws, which will need to be surgically removed in the future. She has otherwise made a good recovery, and was able to resume aerobics in mid 1994.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation'."

In relation to general damages the plaintiff is to be assessed on the basis of an injury of some severity, requiring surgical intervention under general anaesthetic and a long period of recuperation until full mobility was regained. The plaintiff has had a good recovery, but will face additional distress when the screws are surgically removed. In relation to general damages, I assess the sum of $35,000, with $30,000 of this attributable to past loss, generating interest of $2,600, a total award of $37,600.

Out of pocket expenses are claimed in the amount of $4,178.26 for hospital care, ambulance fees and x-rays, which I award. The plaintiff will need to undergo a further surgical procedure to remove the screws, and her orthopaedic surgeon has estimated the cost of this procedure at $2,024, which I award.

The plaintiff's claim for economic loss is particularised as a loss of some six months earnings as a part time diet aide at a nursing home, based on a loss of $115 a week for six months, amounting to a loss of $2,990. Evidence was tendered of her earnings from this source, and I am satisfied that this is made out. A claim for loss of earnings as a part time cherry picker for the 1993 season was particularised at $1,800, but her tax records indicated that the earnings in the next year from this source were around $1,200, and counsel agreed that this was a more appropriate sum, which I award, leading to a total award for past economic loss of $4,190, which I award. With interest, this amounts to a total award for past economic loss of $5,300.

This amounts to a total award of $49,102.26, which I award with costs.