Brian Moores v The Australian Capital Territory and The Royal Life Saving Society ACT Branch Inc (Third Party) [1998] ACTSC 250 (7 July 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

  

  

   Occupiers Liability
- slippery tiles at swimming pool - disabled entrant
injured by fall - issue of contributory negligence - third party claim against
employer.

  

   Damages - difficulties in assessment due to pre-existing disability and
paucity of evidence as to loss of income.

  

  

   CANBERRA, 22 and 29 June 1998 (hearing), 7 July 1998 (decision)

   #DATE 7:7:1998

  

   Counsel for the Plaintiff:
Mr G Lunney

   Instructing Solicitors: Higgins Solicitors

   Counsel for the Defendant: Mr G Stretton

   Instructing Solicitors:
ACT Government Solicitor's Office

   Counsel for the Third Party: Mr R Crowe

   Instructing Solicitors: Pamela Coward & Associates

  

  

   THE COURT ORDERS THAT:

  

   1. There be judgment for the plaintiff in the sum of $90,874.45.

   2. The third party
claim is dismissed.

  

  

   CRISPIN J

  

   1. This is a claim for personal injuries which the plaintiff sustained
during an
accident on 11 October 1993 at the Tuggeranong Pool and Recreation
Centre which was occupied by the defendant. The plaintiff had
attended at the
reception area of the pool and asked to see the Manager, Mr Renee Bol. Mr Bol
then proceeded to show him through
the pool complex. As he approached the top
of three stairs leading down to the pool area his feet went out from
underneath him and
he landed heavily on the stairs. He subsequently noticed
that the bottom of his trousers and his jacket were wet and it was obvious
that he had slipped on wet tiles.

  

   2. A central issue in the case was whether the tiles were unduly slippery.
Apart from any
inferences that might have been available from the
circumstances of the accident the plaintiff relied upon admissions as to
previous
complaints and the defendant's own perception of their slipperiness.
Competing expert reports were also tendered.

  

   3. Dr Neil
Adams' report of 25 January 1996 contained the "confident"
assertion that the smooth tiles in the area of flooring adjacent to the
top of
the stairs would have had a dynamic coefficion of friction under most types of
footwear of less than 0.3 and would have been
hazardously slippery. However,
this opinion was apparently based upon earlier reports concerning unrelated
matters in which he had
measured and calculated dynamic coefficience of
friction for "much similar tiles" when wet. In these circumstances it did not
seem
to me that Dr Adams' opinion could be given any significant weight.

  

   4. On the other hand, Mr Richard Bowman provided a report
which indicated
that plain tiles of the type used in the relevant area had a coefficient of
friction when wet of 0.53. This exceeded
the coefficient of 0.4 for horizontal
surfaces when wet which was the standard required by the Australian/New
Zealand standards for
slip resistance of pedestrian surfaces. Mr Bowman
apparently tested some spare tiles which had been stored rather than those
which
were in fact on the floor where the plaintiff slipped. There was no
evidence as to the uniformity of the co-efficient of friction
of tiles of a
particular type nor as to whether they might become more smooth as a result of
wear and tear. Furthermore, the standards
to which Mr Bowman referred apply
generally to horizontal surfaces intended to bear pedestrian traffic. There
was no evidence as
to the existence of any special standard for tiles to be
used near swimming pools where one might reasonably expect them to be
constantly
wet and for people to be walking or running over them in a variety
of footwear or with bare feet.

  

   5. Whatever Mr Bowman may
have deduced from tests which he apparently
conducted in early 1997 it is clear from contemporaneous records that the
defendant had
itself accepted that the tiles were too slippery. The records
revealed that during the construction of the Tuggeranong Pool and Recreation
Centre it was discovered that the Project Manager had ordered insufficient
"non-slip" floor tiles. In order to meet deadlines and
to ensure that the
Centre opened on schedule some floor tiles, "not of a non-slip nature" were
used. Work on replacement of these
tiles which the General Manager, Bureau of
Sport Recreation and Racing, described as "defective" had been due to commence
after the
school holiday in July 1994. The General Manager's minute noted that
as the tiles were defective the cost of their replacement would
be borne by
the builders. The defendant also conceded in his interrogatories that there
had been about six complaints concerning
the slippery nature of these tiles.
When asked about the substance of any opinion it had formed as to the
slipperiness of the relevant
portion of the floor area the defendant said that
the area "where other than non-slip tiles had been laid was apparently
slippery
when wet".

  

   6. I do not accept that this evidence can be satisfactorily dismissed as a
contemporaneous misconception shared
by the unknown complainants, the
defendant and, apparently, the builder but now revealed by Mr Bowman. I am
satisfied that the tiles
were unduly slippery when wet.

  

   7. I also accept the plaintiff's evidence that there were no signs warning
entrants that the
tiles might be slippery. That assertion was not challenged
in cross-examination and Mr Bol who was immediately in front of the plaintiff
at the time of the accident was not called to give any evidence to the
contrary.

  

   8. In the circumstances I am satisfied that
the accident was caused by the
defendant's negligence.

  

   9. The defence of contributory negligence and the third party claim
both
involved an allegation that the third party had directed the plaintiff not to
go to the Tuggeranong Pool during working hours.

  

   10. At the time of the accident the plaintiff already had a significant
disability caused by injuries to his spine which
he had suffered as a result
of an accident whilst playing football in 1980. He had been left with
incomplete quadriplegia and whilst
he had gradually recovered the ability to
walk, he was able to do so only with a pronounced and awkward gait,
characterised by a
pronounced lurching of the shoulders from side to side.

  

   11. The plaintiff had taken up swimming and had achieved notable
success in
national and international competitions for disabled people. Unfortunately,
his success in the pool was not matched by
equal success in obtaining
employment. He had a series of casual jobs but for long periods was unable to
secure any employment at
all. In 1990 he was employed by the third party as a
casual swimming instructor and during the following year was promoted to a
position
which required him to supervise the school swimming program which the
third party conducted. There were three such programs each
year and they were
conducted in the second, third and fourth school terms.

  

   12. The Tuggeranong Pool was opened in 1993 and
the third party decided
that it would use that pool for the fourth term program in lieu of the
Erindale Pool which it had used in
the past. During the latter part of that
year Mr McGibbon, the Executive Director of the ACT Branch of the third party,
approached
the plaintiff about taking on a new role as Manager - Schools,
Marketing and Recruitment. This role involved liaison with schools
and other
bodies and generally promoting the swimming programs conducted by the third
party. Mr McGibbon gave evidence that he raised
this matter with the plaintiff
because a private swimming school had been "poaching" schools which had
formerly participated in its
programs and he needed someone to promote those
programs. He had also been to the Tuggeranong Pool and had become concerned
that
it may not be safe for the plaintiff because of the steps. He said that
he had conversations with the plaintiff about these matters
during early and
mid September. The plaintiff initially objected because he saw it as a
demotion and felt that other members of staff
would see it in the same light.
He also expressed the view that his suggested replacement would not be
suitable. Nonetheless, he
eventually agreed to Mr McGibbon's proposal.

  

   13. Mr McGibbon said he had a further conversation with the plaintiff on
the
morning of the accident. During that conversation he gave the plaintiff a
memorandum outlining the new proposal and instructing the
plaintiff not to go
to the Tuggeranong Pool during working hours. He said that the plaintiff
mentioned that he might drop in at the
pool to see how the other swimming
instructors were coping with the new program but that he told him not to do
so.

  

   14. There
was also evidence that shortly before Christmas that year the
plaintiff had lunch with Mr McGibbon and Mr Cox who was then the Society's
treasurer. Mr McGibbon said that the plaintiff told them that he was intending
to seek compensation from the defendant for the injuries
he received in the
accident but that he would not be making any claim against the third party
because he had been told in writing
not to go to the pool.

  

   15. Mr Cox gave evidence supporting Mr McGibbon's account of this
conversation. He also said that
when he was served with the writ, which
initially joined the third party as a second defendant, he approached Mr
McGibbon, reminded
him of the assurances which the plaintiff had given them
shortly before Christmas and asked him to contact the plaintiff by telephone.
The third party's offices had a speaker phone facility and Mr Cox was able to
hear the conversation. He said that the plaintiff confirmed
that it had been
his intention to take proceedings only against the defendant and that he would
speak to his solicitors about the
matter. Mr McGibbon had not been asked about
any such conversation.

  

   16. The plaintiff denied that he had been told not to
go to the Tuggeranong
Pool. He said that he did receive the memorandum but it was handed to him only
after the accident. He also
denied having subsequently acknowledged that he
had been told not to go to the pool.

  

   17. Both Mr McGibbon and Mr Cox seemed
forthright and honest witnesses.
However Mr Lunney for the plaintiff submitted that I would prefer the evidence
of the plaintiff.
Mr McGibbon had conceded that he had subsequently discovered
that the third party did not have any subsisting insurance policy which
would
provide cover in relation to any damages awarded to the plaintiff. He did not
suggest that either Mr McGibbon or Mr Cox had
given their evidence dishonestly
but did submit that this consideration may have coloured their recollection of
the relevant events.
Furthermore, it was always difficult to recall
conversations which had occurred several years earlier and, since they were of
particular
importance to the plaintiff it was more likely that he would
remember them accurately than Mr McGibbon and Mr Cox for whom the
conversations
would have related to only one of many management issues.

  

   18. The only document relied upon as a contemporaneous record is
the
memorandum which Mr McGibbon said that he gave to the plaintiff. That document
was dated 24 September 1993 and on any view there
was a significant delay in
handing it to the plaintiff. Mr McGibbon was not asked to explain that delay.
It might also have been
thought to have been an extraordinary coincidence for
Mr McGibbon to have given a direction to the plaintiff about staying away from
the pool on the very day that the accident occurred. However, the plaintiff
did not demur from the proposition put to him in cross-examination
that the
accident had occurred on the first day of the fourth term and there is no
evidence to suggest that he was employed during
the school vacations. There is
nothing inherently improbable about the plaintiff being given instructions
about his new role on the
first day of term or about being handed a memorandum
relating to that role, even if it had been prepared during the last few days
of the previous term. Nor would it have been surprising if, having instituted
this new arrangement in part because of his concern
that the plaintiff may not
be safe at the Tuggeranong Pool, Mr McGibbon had then directed him to stay
away from it.

  

   19. Whilst
I formed the impression that the plaintiff was also an
essentially honest witness, his memory of past events was vague and he
exhibited
considerable confusion even in relation to incidents which had
occurred quite recently. For example, when asked to explain why he
stopped
attending a course at the Bruce TAFE on 16 October 1997 he said that he left
it to commence employment with Byvan Management
Pty Ltd working in a car park.
In cross-examination it was put to him that that employment had commenced on
21 July 1997 and had
concluded by the end of August that year. The plaintiff
agreed that he believed that that was correct and suggested that it might
have
been a job with the Council of Small Business Organisations of Australia
(COSBOA). It was then put to him that his employment
with COSBOA had commenced
on 21 August 1997 and the plaintiff conceded that he could not say what job
had induced him to leave the
course. Nor could he explain how he had been able
to maintain employment with COSBOA whilst continuing with the course for a
further
two months.

  

   20. I did not form the view that the plaintiff was dissembling. On the
contrary, he seemed to be struggling to
remember what had occurred. However,
his obvious confusion as to events which occurred as recently as eight months
ago necessarily
raises real doubts as to the accuracy of his memory in
relation to conversations which had occurred some four years earlier. I think
the plaintiff's memory may have been affected by any of a number of factors
including chronic pain, the drugs he has been obliged
to take to alleviate it,
his excessive consumption of alcohol, difficulties in family relationships
and, perhaps, a natural tendency
to reconstruct things in the most favourable
light.

  

   21. Accordingly, I am satisfied on the balance of probabilities that
the
plaintiff was told that Mr McGibbon was concerned about his safety at the
Tuggeranong Pool and directed not to visit it during
working hours.

  

   22. Mr Stretton for the defendant conceded that in the event of such a
finding the third party claim could
not be sustained.

  

   23. He submitted, however, that it would give rise to a real issue of
contributory negligence. It is difficult
to see why this should be so. The
direction was given to the plaintiff by the third party and there is no
evidence to suggest that
the defendant was aware of it. The plaintiff had
introduced himself at the reception area of the pool and at the time of the
accident
was being conducted around the pool complex by its manager. It was
not suggested that he should be regarded as a trespasser or that
the duty of
care owed to him had been in some way diminished by the direction which he had
been given. I accept that it provided
the plaintiff with a timely warning that
if he went to the pool complex he was likely to encounter steps and ramps
which might pose
a risk to his safety. Any suggestion that he failed to take
due care for his own safety should be determined in the light of that
clear
warning. However, apart from the mere fact of the accident, there is nothing
to indicate that he failed to exercise due care.

  

   24. The plaintiff said that he had noticed that there was water
"everywhere" and, in any event, had visited pools in Australia
and all over
the world and was aware of the possibility of water being on the floor. When
asked whether he had taken any particular
precautions when walking around, he
said that "you always, you know, check that, you know, if it's not slippery"
and added "I mean,
there was non-slip tiles everywhere so you felt safe". He
agreed that at the time of the accident he was not looking down at his
feet to
see where they were, but rejected the suggestion that he may not have had his
foot properly on a stair. He explained that
as a person with a disability he
had to know where his feet were and that he would have known if he had lost
his footing. It seems
relatively clear that he slipped on an area of tiled
flooring as he approached the stairs but before he commenced to descend them.
There were no railings in the vicinity which the plaintiff might have grasped
and he obviously felt more comfortable with the stairs
than with the
wheelchair ramp nearby.

  

   25. In these circumstances, the only possible element of contributory
negligence lay
in his failure to look at the floor as he approached the top of
the stairs. However, there is no evidence to suggest that his failure
to do so
contributed in any way to the accident. The position would have been different
if he had fallen as a result of tripping
over some unseen object or failing to
place his foot squarely upon a stair but the evidence does not suggest any
mechanism of that
kind. Nor does it suggest that the plaintiff's failure to
look at the floor was in any sense a contributing cause to the accident.
I
accept the plaintiff's evidence that he had noticed water in the area and was
conscious of the position of his feet. I am not satisfied
that he would have
made the fateful step any differently had he been looking at the floor. Nor,
given the level of his disability,
am I satisfied that he could have done so
more safely than he did.

  

   26. Accordingly, I am not satisfied that the plaintiff
has been guilty of
contributory negligence.

  

   27. As a result of the accident the plaintiff suffered an injury to his
back.
I am satisfied that this has left the plaintiff with a legacy of
continuing pain and that this has had a significant impact upon
his lifestyle.
It has further eroded his already limited capacity for employment and
prevented him from swimming. It is true, as
Mr Stretton pointed out, that his
competitive career seems to have been completed prior to this accident but he
had continued to
swim regularly and been able to maintain a significant level
of fitness. His added incapacity has eroded his self esteem and that
factor
together with the pain has no doubt contributed to his excessive use of
alcohol and the tension which occurred within his
family.

  

   28. The real difficulty lies in seeking to measure the extent of any
additional incapacity that has been caused to
a man already severely disabled.
Apart from his obvious physical disabilities the plaintiff had limited
literacy and numeracy skills.
An assessment by a clinical psychologist, Mr E A
Petroni, which was apparently carried out in 1996 also suggested that the
plaintiff
had a severe neurotic personality or one under acute stress. Mr
Petroni said that the plaintiff was having problems with acceptance
by other
people and with his own perception of himself. He expressed the view that the
plaintiff would have been inadequate in most
areas of his life. There was an
alternative but tentative diagnosis of a high anxiety reaction in a schizoid
personality. In his
report of the 2 October 1996 Mr Petroni described the
cardinal features of the plaintiff's personality profile as feelings of
inadequacy,
a sense of truncated future, covert hostility, poor work
adjustment, blunted and appropriate affect with schizoid features and high
autonomic nervous system discharge. It is difficult to exclude the possibility
that these psychological difficulties were present
at least to some degree
prior to the accident. However, Mr Petroni concluded that fears of the
ultimate consequences which the recent
injury would have had on his already
limited physical integrity and impaired mobility had no doubt contributed
significantly to this
personality profile. He also suggested that the injury
would have had a greater psychological effect on the plaintiff than it may
have had on another person lacking his pre-existing disability. Of course, it
is also true that the injuries would have had a greater
impact on the
plaintiff's physical capacity than they would have had on a person without any
other relevant disability.

  

   29.
In addition to these difficulties I am obliged to take into account the
likelihood that the plaintiff would have developed low back
pain at some stage
because of the gait which his pre-existing disability forced him to adopt. He
had experienced an episode of low
back pain in 1984 which was apparently not
attributable to any accident or other cause that the plaintiff could identify.
Dr Newcombe
expressed the view that his gait could have been responsible for
that episode and that on the balance of probabilities he would have
been a
candidate for back pain of some description because of his quadriparesis.

  

   30. It is by no means certain that his present
condition will be permanent
and there is some prospect that his pain may be alleviated by cortisone
injections. The plaintiff has
not been willing to accept treatment of that
nature because he has a phobia about injections. Having regard to the evidence
of his
psychological state and the fact that he was seeking assistance from Mr
Petroni to overcome that phobia as early as 1996 I am not
prepared to find
that his refusal is unreasonable. On the other hand, it seems to me that I am
obliged to take into account the likelihood
that he may be able to accept that
treatment and that it may significantly reduce his symptoms.

  

   31. In all the circumstances
I award the plaintiff the sum of $40,000.00
for general damages. I allow a further sum of $2,330.00 for interest on the
component
of general damages awarded for past pain, suffering and disruption
of the amenities of life, which I have assessed as $25,000.00.

  

   32. Any estimation of the plaintiff's economic loss must necessarily be
attended by grave uncertainty. His evidence as to
when and where he had worked
was extremely vague and he was unable to say what his earnings may have been
in any given financial
year. There is evidence that during his employment with
the third party he earned $11,214.00 net during the year ended 30 June 1993
and that he may have earned slightly more in the following year. Mr Lunney
used these figures to support his submission that I should
use a figure of
$215.00 per week as a basis for an assessment of the plaintiff's past loss
subject, of course, to an allowance for
subsequent earnings. The plaintiff
continued with his employment with the third party for about 18 months after
the accident and
then had several further short periods of employment. M
Lunney submitted that his post accident earnings were about $28,500.00 but
that if he had remained in his employment with the third party he would have
earned about $53,000.00 during the period in question.

  

   33. As Mr Stretton pointed out the figure of $28,500.00 does not take into
account any income for the period between November
1997 and March 1998 when he
was apparently in employment but was unable to provide any information as to
his earnings. The comparison
also fails to take into account the fact that his
employment with the third party was on a casual basis and that given the
plaintiff's
past employment history, his disability, his limited education
and, perhaps, psychological vulnerability, it is by no means clear
that this
employment would have been sustained consistently throughout the period in
question.

  

   34. In the circumstances I
think it is appropriate to accede to Mr Lunney's
submission that there should be a buffer in respect of past economic loss but
it
must be less than that for which he contended. I allow the sum of
$10,000.00 and allow a further amount of $470 in respect of interest
on that
sum.

  

   35. The assessment of an appropriate allowance for future economic loss is
attended by even greater uncertainty.
I accept that the plaintiff is presently
unable to work but, as I have indicated, the evidence raises real doubts as to
the extent
to which the plaintiff would have sustained his employment even if
the accident had not occurred. Furthermore, there is a real prospect
that his
symptoms may be alleviated and that he may ultimately be able to return to the
workforce. I allow a buffer of $30,000.00.

  

   36. Out of pocket expenses have been agreed in the sum of $8,075.45.

  

   37. There will be judgment for the plaintiff
in the sum of $90,874.45.