Josette Joan Badcock v Australian Capital Territory [1998] ACTSC 223 (29 May 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Negligence
- Plaintiff tripped and fell over raised pavers on a walkway in
a carpark - Whether defendant owed plaintiff a duty of care - ACT
Liability -
No issue of principle.

  

   Damages - Assessment - Personal injury - Plaintiff tripped and fell over
raised pavers
- Foreseeability of injury - fractured arm and dislocated
shoulder - Poor mobility of the shoulder and poor strength - Quality of
life -
No issue of principle.

  

   Watts v Australian Capital Territory (1997) Aust Torts Reports 81-431

  

  

   CANBERRA,
13-14 May 1998 (hearing), 29 May 1998 (decision)

   #DATE 29:5:1998

  

   Counsel for the Plaintiff: Mr. C Everson.

   Instructing
Solicitors: Legal Aid (ACT)

   Counsel for the Defendant: Mr. P Walker

   Instructing Solicitors: ACT Government Solicitor's


 

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the plaintiff in the sum of $63,374.00.

   2. The defendant
pay the plaintiffs costs.

  

  

   MASTER T. CONNOLLY

  

   2. This is a claim for damages for personal injuries arising from
an
incident on the morning of 4 May 1995 when the plaintiff, a retired lady of
sixty six, tripped and fell in the carpark area between
Bunda Street in Civic
and the flats in which she resided at the time. In the area where the
plaintiff tripped and fell the walkway
in the carpark, which is made of
concrete paving tiles, was at several points irregular in its surface as a
number of paving tiles
had lifted. The plaintiff says that she tripped on a
raised tile, and as a consequence fractured her arm and dislocated her
shoulder.
The plaintiff brings an action in negligence against the Australian
Capital Territory for failing to maintain the relevant area in
a safe
condition. Such an action is not within my jurisdiction as Master as of right,
but an order was made by a Judge on 3 April
1998 providing that I could hear
and determine the matter.

  

   3. The defendant filed a defence which included, inter alia, a
claim that
the relevant area attracted the so called highway defence, which at common law
provides that a public authority is not
liable for negligently failing to
maintain a public highway in a safe condition. The Territory announced at the
opening of the proceedings
that it would not rely on this defence, and it
appears that the relevant carpark is not a gazetted road and that the highway
rule
would not necessarily be available as a defence in the circumstances of
the present case. It is not necessary, however, for me to
determine that
question, as the defence was abandoned.

  

   4. At the relevant time the plaintiff was living, on her own, in a
flat in
the Currong Flats in Braddon, which is situated to the north of the central
business area of Civic, and separated from it
by the area of land known as the
Bunda Street carpark. Her normal path to the city was by way of a supermarket
area situated near
the intersection of Bunda Street and Ainslie Avenue, but on
this particular morning she wanted to post a letter, and proceeded directly
across the carpark, by way of clearly marked and defined pedestrian paths.

  

   5. The plaintiff impressed me as a totally frank
and honest witness, and
was properly acknowledged as such by counsel for the Territory. She told her
counsel that she had previously
walked through this area, and said:

  

  

   "I knew the paving was uneven and veered to the left of the area to avoid
tripping,
as I thought, and I was thinking of posting the letter and not
looking down continuously."

   6. The plaintiff says that this incident
occurred at around 9.30 am, and
that she had in mind getting to the post box before the morning pick up of
letters. She was wearing
flat comfortable shoes. She says that she tripped and
fell on uneven pavings. She was clutching her handbag as she fell, and recalls
landing on her elbow, and lying on the ground in pain. She was in pain and
upset, but thought she was in control of herself. A young
man who was walking
ahead of her turned as she called out, and came back to help her to sit on a
seat provided in the area. A friend
of the plaintiff came to the scene, and
arranged a taxi to take the plaintiff to the emergency section of Calvary
Hospital. She was
transferred to Woden Valley Hospital, and operated on the
next day by Dr Stubbs for a four part fracture of the proximal right humerus.

  

   7. The plaintiff's medical position is well summarised in a report from Dr
Stubbs of 11 November 1996. Dr Stubbs said:


 

  

   "A four part fracture of the proximal humerus is a fracture of the shoulder
joint. The ball part of the arm is broken into
several pieces, at least four
pieces. This fracture does very poorly so it is treated by replacing the ball
part of the arm bone
with prosthesis. In Mrs. Badcock's case the prosthesis
became unstable and required revision surgery. [Which Dr Stubbs performed
in
August 1995] I last reviewed Mrs. Badcock on 7 March 1996. That was ten months
after her original surgery and six months after
her correction surgery. The
situation in March was she had good pain relief and good stability. There was
no further suggestion of
dislocation. Unfortunately though there was poor
mobility of the shoulder and poor strength. Mrs. Badcock's shoulder has been
impaired
by the fall she suffered. Her effective range of shoulder movement is
only about two thirds that of normal and the efficient use
of her right upper
limb is therefore diminished by this degree. She therefore has a 40% loss of
efficient use of the right upper
limb equivalent to 15% whole person
impairment. This is the consequence of her fall."

   8. A few days after the incident, and while
the plaintiff was still in
hospital, the plaintiff's daughter took a series of photographs of the area
where the plaintiff fell.
These were tendered, and on one of these photographs
the plaintiff marked the point around which she fell. In this area it is
apparent
from the photographs that a series of the pavers have buckled and
raised so that the area is no longer a smooth surface.

  

  
9. The plaintiff's daughter placed a flashgun from her camera next to these
raised pavers, and that item was also placed in evidence.
Mrs. Wynn , the
plaintiff's daughter, said that the paver was raised to about one half to one
third of the height of the flash. This
seems to be an appropriate assessment,
which would mean that the pavers in the photograph, identified by the
plaintiff as being at
the scene of the incident, are raised by about 10mm -
20mm.

  

   10. Further photographs taken by Mrs. Wynn were tendered, which
show that
at November 1997 the relevant area had been re paved and was smooth with no
raised pavers. A document was tendered by the
plaintiff from among a series of
documents obtained under Freedom on Information which showed that a complaint
was received by the
Department of Urban Services on 17 January 1996 that
pavers in the Bunda Street carpark had been uplifted by approximately 20mm
with
a potential pedestrian hazard. The document shows that some 40 pavers
were removed and relayed and that this work was completed on
1 April 1996.

  

   11. Documents tendered by the defendant to demonstrate the methods used by
the Territory to monitor maintenance
requirements included a record of a
complaint that a paver had been lifted by a tree root in the Bunda Street
carpark in February
1994 and that an old lady had tripped over this. It is the
plaintiff's case that this demonstrates that the Territory as occupier
of the
Bunda Street carpark was aware from at least February 1994 that tree roots had
lifted pavers in the general area creating
a potential hazard for pedestrians,
and so was under a liability to ensure that a system of inspection and
maintenance was in place
so that persons using this area, immediately adjacent
to the Canberra city area, were not exposed to this hazard. The plaintiff
acknowledged
that this complaint did not relate to the precise location of
Mrs. Badcock's fall, but that it was in the general carpark area. The
plaintiff argues that because the Territory failed in this duty, she suffered
her injury.

  

   12. The material released to the
plaintiff under Freedom of Information and
tendered as part of the plaintiff's case demonstrated that, when the Bunda
Street carpark
area was resurfaced with pavers in 1990 the relevant authority
of the Territory, the Department of Urban Services, took particular
care to
ensure that the project was completed in a safe manner, with pedestrian safety
being a prime consideration. This is of course
as it should be.

  

   13. The plaintiff tendered two reports from a consulting engineer and a
landscape architect, which suggested
that the likely cause of the buckling of
the pavers was tree root growth lifting the pavers. Mr. Scholtons, the
landscape architect,
said that where a formerly bituminised area with trees
was rebuilt with pavers as the dominant surface, tree root growth could be
expected as a previously generally impervious surface was being replaced with
a new layer of sand and then pavers which would allow
water to seep through,
and so encourage tree root growth. Established trees are present in the Bunda
Street carpark, and indeed the
design of the pedestrian facilities took
advantage of this, with seating provided adjacent to the trees, which provide
a pleasant
shade in the warmer months. Such a seat is visible in one of the
photographs tendered of the accident site.

  

   14. Mr. Scholtons
was asked what system of inspection should be adopted to
ensure that tree root growth did not create a danger and he said:

  


  15. "In an open area that is used in a way that the pavement was designed
to be used, maybe that no inspection is needed for five
years and the once
every year"

  

   16. If this evidence stood alone it would be very damaging to the
plaintiff's case, as it
amounts to an opinion from the plaintiff's expert that
regular inspections would not be needed for five years. The relevant area
was
only subject to final acceptance in November 1990, so the accident occurred
before when Mr. Scholters says an inspection regime
should have been
implemented. However the evidence shows that the Territory was aware of the
problem of raised pavers constituting
a potential hazard from February 1994. I
draw no conclusion as to what, if anything was done in response to the
February 1994 complaint.
Its significance lies in the fact that it alerted the
Territory to the precise type of risk which ultimately occurred.

  

   17.
I find that the pavers were raised by a mechanism of tree root growth,
and that such a mechanism was foreseeable. I find that the
Territory
authorities were aware that such occurrences could occur, at least since
February 1994 when documents tendered by the defendant
showed that a complaint
was received about such an occurrence in this general area, which caused 'an
old lady to trip over this.'

  

   18. The defendant Territory tendered a document, which showed the extent of
the asset, which is managed by the Territory
on behalf of its citizens. There
are about 5,606 kilometers of road lanes, 1001 bridges, 41,800 parking spaces,
1,500 kilometers
of footpaths and approximately 90,000 driveways forming part
of the public infrastructure asset of the Territory, valued at some
$3 billion
in replacement value. It would not be reasonable, argued the Territory, to
expect all of this asset to be meticulously
examined so that no person could
trip over any raised paver, crack or pothole that may appear at any time.

  

   19. The Territory
lead evidence from Mr. Leigh Palmer, the officer in
charge of the Infrastructure Management area of the Department of Urban
Services.
He said that in 1994/5 the Territory allocated some $14 million to
maintenance of the roads, footpaths, bridges and car parks of
the Territory in
order to protect the asset. He outlined the no doubt difficult process by
which a limited sum of public money must
be allocated in the most efficient
and effective manner to protect as significant public asset and to protect the
community. He explained
the system which is now in place, and has been
implemented since about 1990, to log complaints from the public and then come
to a
decision about the appropriate maintenance response.

  

   20. That a public authority would have great difficulty in ensuring
that
all cracks, raised surfaces or potholes are promptly rectified so as to cause
no risk to the public is a matter of common understanding,
and indeed it is
the basis behind the common law highway rule defence, which is not relied upon
in the present case. The plaintiff
argued that the Bunda Street carpark, which
the documents tendered in this case show is not a gazetted public road area,
should be
considered under the ordinary principles of negligence, and so the
liability of the Territory as occupier should be tested against
the principles
of law laid down by the High Court of Australia in Australian Safeway Stores
Pty Ltd v Zaluzna [1987] HCA 7;  (1987) 162 CLR 479 and recently reaffirmed in Romeo v
Conservation Commission of the Northern Territory [1998] HCA 5;  (1998) 151 ALR 263. In
Romeo's case the majority found that a public authority could not be held
liable to safety fence a large
park area included cliffs on the foreshore near
Darwin.

  

   21. Counsel for the plaintiff argued that I should find guidance
in the
decision of this Court of Cooper J in Watts v Australian Capital Territory
(1997) Aust Torts Reports 81-431. In that case
a pedestrian was injured when
she stepped into an uncovered drain in Garema Place, in the centre of
Canberra. His Honour found that,
notwithstanding the fact that Gareme Place
was a gazetted road, the highway rule defence did not apply, and so went on to
assess
the Territory's responsibility on the ordinary principles of
negligence. He found that the type of grille used in the development
of this
area could be dislodged or removed, and that:

  

  

   "In an area developed for and used as a high density pedestrian
precinct
the risk of a pedestrian stepping into an uncovered drain in the event that
the grille was dislocated or removed was both
real and foreseeable."

   22. The area where this incident occurred was immediately to the north of
Garema Place. It was indeed
one of the main car parks, which surround the
central city area of Canberra. It was redeveloped in 1990 to a high standard
with paving
for ease of pedestrian access, and facilities such as seats in the
shade of the pleasant established trees. I find that in such an
area the risk
of a pedestrian tripping on a raised paving block was both real and
foreseeable, as the Territory had notice from at
least February 1994 that
paving blocks had lifted in this area and pedestrians had tripped.

  

   23. It does not follow from such
a finding that any pedestrian who trips or
falls on any part of the vast network of roads, footpaths and urban
infrastructure in
the Australian Capital Territory would have a cause of
action against the Territory. In most cases, of course, the highway rule would
provide a complete defence. In many other areas it may not be possible to say
that the risk of injury was both real and foreseeable.
But in the present
case, in an area so close to the central shopping and commercial centre of the
city, I find liability established.

  

   24. The Territory further argued that the conduct of the plaintiff in
continuing through this area despite being aware that
pavers had lifted in the
general are amounted to contributory negligence. The plaintiff acknowledged in
her evidence, as she had
in interrogatories, that she was aware that the
pavers in the area had become raised. The plaintiff said in her
interrogatories:

  

  

   "I did not use this path often as I preferred to walk towards the shopping
centre from Currong Flats, where I lived at
the time, by another route. One of
the reasons for this was because I had noticed the raised pavers before and
avoided them because
I knew the area generally appeared to be unsafe. On this
occasion however, I was intending to post a letter and this was the most
direct route. I walked up the wheelchair ramp and veered to the left of what I
knew to be the raised pavers, in an attempt to avoid
them. I miscalculated the
distance I needed to walk around the raised pavers and tripped on the paver in
question."

   25. In Meggs
v Liverpool Corporation [1968] 1 All E R 1137 the Court of
Appeal rejected an appeal from a pedestrian who had been injured when
she
tripped and fell over a raised flagstone on a pavement in Liverpool. In
rejecting the claim Lord Denning said:

  

  

   "It
seems to me, using ordinary knowledge of pavements, that everyone must
take account of the fact that there may be unevenness here
and there. There
may be a ridge of half an inch or three quarters of an inch occasionally, but
that is not the sort of thing which
makes it dangerous or not reasonably
safe."

   26. Counsel for the Territory argued that this decision should guide me to
a finding
that, either the raised paving was such a hazard as to create
liability, a view that I have rejected, or that a person should be
aware of
the possibility of such a hazard, and so should be found to be contributorily
negligent in proceeding across an area of
raised pavers.

  

   27. I note the plaintiff's total frankness in admitting that she was aware
that pavers were raised in this
general area. I am not persuaded, however,
that it amounts to contributory negligence for a woman of her years to take
the direct
path through a facility obviously designed to encourage pedestrian
access when she is aware that there are some raised pavers. Her
evidence at
the hearing was consistent with her answer to interrogatories in that she said
that she veered away from the area she
thought most of a hazard, but she was
not looking down all the time. I am not satisfied that this conduct amounts to
contributory
negligence.

  

   28. The principles to be applied in determining compensation in personal
injuries cases where liability is established
have been summarised by McHugh J
in Nominal Defendant v Gardikiotis [1995] HCA 56;  (1996) 186 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
if he had not sustained the wrong for which he is now
getting his compensation."

  

   29. In relation to general damages the plaintiff
is to be assessed on the
basis of an injury of some severity, requiring two operations, and leaving her
with a residual disability
in the use of her arm. The plaintiff obviously
suffered a degree of shock and distress at the time of the incident, but has
done
her best to get on with her life. Indeed, in her evidence it is clear
that Mrs. Badcock is determined to get on with life as independently
as
possible. In the period immediately after the accident her daughter cared for
her in her home before the plaintiff was able to
return to her flat. Her
daughter continued to assist with the heavier jobs for a while, and continues
to see her mother regularly.

  

   30. The plaintiff said that she had been a very keen sewer, but that her
shoulder now restricted her in this activity. The
plaintiff also said that she
had to be very careful in playing with her two grandsons as they were lively,
and could easily inadvertently
hurt her shoulder. She continues her social
card games, and is again able to drive, having had a device fitted to her
steering wheel
to make it easier for her to drive. She has enrolled in
University of the Third Age courses, which she enjoys.

  

   31. In relation
to general damages, I am satisfied that Mrs. Badcock is
entitled to compensation beyond the jurisdictional limit of the Magistrates
Court, which was the primary submission of her counsel. I assess general
damages in the sum of $57,000, of which I would assess $35,000
to past loss,
generating interest of.$2,100.00 making a total award of $59,100.00

  

   32. Out of pocket expenses were agreed
in the sum of $3,274.00 which I
award.

  

   33. The plaintiff made a claim for Griffiths v Kerkemeyer damages relating
to the
care provided to the plaintiff by her daughter. I am satisfied that in
the period immediately after the plaintiff's release from
hospital the Mrs.
Wynn did provide care and assistance going beyond the normal give and take of
family relations described by the
High Court in Van Gervan v Fenton [1992] HCA 54;  (1992) 175
CLR 327 so as to make out such a claim for the period until the plaintiff
resumed living independently. I would award
the sum of $1000 as a
discretionary sum in answer to this aspect of the claim.

  

   34. As the plaintiff was retired no claim
for past or future economic loss
was brought.

  

   35. This amounts to an award of $63,374.00which I consider to be
appropriate
in all of the circumstances, and I award this, with costs.