Patricia Lyons v Fondi Investments Pty Limited, The National Library, and Hih Casualty and General Insurance Limited (Third Party) [1998] ACTSC 271 (7 August 1998)

  
  
  
  

  
   

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   CRISPIN J

   Personal Injuries - fall due
to ice on ramp leading down to entrance of
building where plaintiff worked - liability of employer - liability of
occupier.

   Indemnity
Claim - contractual obligation for employer to extend workers
compensation including common law liability to cover liability of occupier
-
whether warrants indemnity for breach of duty as an occupier - construction of
clause requiring contractor to take measures to
protect people using adjoining
streets or footpaths.

   Workers Compensation Act 1951

   Cervellone v Besselink Bros Pty Ltd & Anor (1984) 55 ACTR 1

   Jurjevic v Tereel Pty Ltd t/a Celtic Plastering Co &
Anor (unreported,
SCACT, 17 October 1986)

   Steele v Twin City Rigging Pty Ltd & Ors (1993) 114 FLR 99

   Canberra Formwork
Pty Ltd v Civil and Civic Ltd & Anor (1982) 41 ACTR 1
at 23

   Alderslade v Hendon Laundry Ltd [1945] KB at 192

   Canada Steamship
Lines Ltd v The King [1952] AC 192 at 208

   Smith & Anor v South Wales Switchgear Co Ltd (1978) 1 WLR 165 at 172
and 178


 

  

   CANBERRA, 20 and 22 July 1998 (hearing), 7 August 1998 (decision)

   Date judgment reserved: 22 July 1998

   #DATE 7:8:1998

   Counsel for the Plaintiff: Mr R Williams QC with Mr B Meagher

   Instructing Solicitors: Scott Sheils & Glover

   Counsel
for the First Defendant: Mr D Mossop

   Instructing Solicitors: Clayton Utz

   Counsel for the Second Defendant: Mr S Pilkinton

   Instructing Solicitors: Australian Government Solicitor

   Counsel for the Third Party: Mr J McConaghy

   Instructing Solicitors:
Ken Cush & Associates

  

  

   THE COURT ORDERS THAT:

   1. There be judgment for the plaintiff against both defendants in
the sum
of $98,195.00.

   2. The first defendant indemnify the second defendant in respect of any
monies paid by that defendant
in satisfaction of the judgment in excess of the
sum of $73,646.25.

   3. The second defendant indemnify the first defendant in
respect of any
monies paid by that defendant in satisfaction of the judgment in excess of the
sum of $24,548.75.

   4. There be
judgment for the first defendant against the third party in the
sum of $24,548.75.

  

  

   CRISPIN J

   1. This is an action
for damages in respect of personal injuries sustained
by the plaintiff in an accident on 16 July 1993. The plaintiff was employed
by
the first defendant as a cleaner and was required to clean in the building
known as the National Library at Barton in the Australian
Capital Territory
which as the name suggests was occupied by the second defendant.

   2. The plaintiff normally started work at
5.00 am. It was her practice to
park her car in the rear car park and walk down the left hand side of a ramp
to an entrance at a
lower level which was manned by a security guard. On the
morning in question she arrived at the car park 10 or 15 minutes prior to
her
normal commencement time of 5.00 am. It was quite dark and, whilst the lights
in the car park were on and some light could be
seen emanating from the
security office, it was very hard to see the ramp. She was walking quite
quickly because a new cleaner had
been due to start work that day and as
'leading hand' it had been her responsibility to show her around the premises.
She gave evidence
that when she was about one third of the way down the ramp
she slipped and fell. In cross-examination it was suggested that she had
subsequently given a history of having been injured when she stepped down off
a large dark step. The plaintiff said that she could
not recall giving such a
history and it would have been at odds with other accounts which she had given
of the accident. Indeed,
the contemporaneous records maintained by the
security service includes an account which she apparently gave to the security
officer
at 5.00 am of having "slipped as she was coming down the driveway near
the first bump". In any event, having had the opportunity
to assess the
plaintiff's credibility in the witness box I am satisfied that her account was
both truthful and accurate.

   3. After
the accident the plaintiff noted what appeared to be black ice on
the pavement. A report from the Bureau of Meteorology reveals that
the ambient
temperature would have been -2[infinity]C. I am satisfied that the plaintiff
did slip on ice which had formed as a result
of the cold atmospheric
conditions.

   4. A number of photographs of the relevant area were tendered. They
revealed a relatively
steep asphalt ramp with a concrete footpath on one side.
I am satisfied that the gradient of the ramp was such that it would have
been
hazardous for pedestrians to attempt to walk down it whilst frost or ice was
present. That hazard was compounded by the absence
of adequate lighting or any
railings.

   5. Mr Williams QC who appeared on behalf of the plaintiff relied upon a
report by Mr Alex
Tiplady, a consulting engineer, to the effect that
there were a number of measures which might have been taken to alleviate the
risk
of injury caused by the state of the ramp. Those precautions were as
follows:

   (a) a mixture of salt and sand could have been
laid on the area designated
for pedestrian traffic in order to prevent or inhibit the formation of ice;

   (b) a handrail could
have been erected against the left hand side of the
ramp to assist people seeking to negotiate it in slippery conditions;

   (c)
a bus shelter type of awning could have been erected over the pavement
on the other side of the ramp in order to prevent the formation
of "black"
ice;

   (d) a notice could have been displayed warning pedestrians of the possible
hazard posed by slippery conditions.

   6. In my view there were other obvious precautions which might have been
taken. First, and most obviously, adequate lighting
could have been provided
for the ramp area. Secondly, whilst this aspect was not explored in evidence
there was no apparent reason
for requiring cleaning staff to continue to use
the ramp in the early hours of winter mornings when access could have been
provided
through the front of the building.

   7. It was submitted on behalf of the first defendant that the evidence did
not establish any
negligence on its part. It had no right to alter the
gradient of the ramp, erect handrails, shelters or notices, apply substances
to prevent the formation of ice or install adequate lighting. Furthermore,
whilst Mr Matruglio, a principal of the first defendant,
may have told the
plaintiff to use the rear entrance he had done as a result of having been so
directed by a security officer apparently
acting on behalf of the second
defendant.

   8. All that may be true but the first defendant had a non-delegable duty to
take any
steps reasonably required to protect employees such as the plaintiff
from foreseeable risks of harm. It was obviously dangerous for
the plaintiff
to have to gain access to the building by means of an unlit ramp which was
likely to become slippery due to the presence
of frost or ice which might
reasonably have been anticipated at that hour of a Canberra winter in July.
Yet Mr Matruglio had directed
her to use the rear car park and enter the
building via the rear entrance. He had walked down the ramp with her and, in
effect, directed
her to use the ramp. The first defendant had not warned her
of the danger nor, apparently made any approach to the second defendant
with a
view to alleviating it. Whilst the plaintiff may have been aware of the risk
of frost or ice forming in Canberra during winter,
that cannot absolve the
first defendant from any responsibility for its failure to assess the
particular risk created by a combination
of the gradient of the ramp, the
likely presence of ice and the absence of adequate light and warn her of the
particular hazard that
might be so created.

   9. It was also submitted that the first defendant owed the plaintiff no
duty of care in relation to her
use of the ramp because she had not yet signed
on and commenced work. Whilst an employer may not have any common law duty to
protect
his or her employees from the normal hazards of travelling to and from
work that submission cannot be accepted in the circumstances
of this case. It
was common ground that the ramp is part of the property occupied by the second
defendant and facilitates access
to the rear entrance to the building in which
the plaintiff was to work. She was using the ramp because she had been
directed to
enter the building through that entrance and was required to sign
on at a security desk immediately inside. An employer's duty to
his or her
employees extends to the provision of a safe means of access to and egress
from the place of work. Whatever may be the
ambit of that duty it clearly
covers a situation in which an employee has entered the relevant property and
is proceeding by the
route which her employer has directed her to follow to
the area in which she is required to commence work.

   10. I am satisfied
that the first defendant breached its duty to take
reasonable care to protect the plaintiff from a foreseeable risk of injury in
negotiating the ramp.

   11. I am also satisfied that the second defendant was negligent in failing
to take reasonable steps to
protect people entering the building from injury
due to the dangerous state of the ramp.

   12. The nature of the duty of care owed
to the plaintiff by the second
defendant as occupier of the building was not the same as that owed to her by
the first defendant
as her employer. However, the ramp was within the control
of the second defendant and only it would have been entitled to alleviate
the
risk of harm by modifying it in the manner suggested by Mr Tiplady or by
installing adequate lighting. It was also the second
defendant which had
apparently determined that cleaners such as the plaintiff should use the rear
entrance and had stationed a security
guard inside that entrance to authorise
their entry. In short the second defendant was primarily responsible not only
for the dangerous
state of the ramp but for the fact that the plaintiff had
been directed to use it. In contrast, the first defendant was negligent
only
in failing to warn her of the danger and, perhaps, failing to remonstrate with
the second defendant about the need to provide
a safer means of access.

   13. Subject to the contractual claims brought by the second defendant
against the first defendant, I
am satisfied that the second defendant bears a
significantly greater responsibility for the accident and the injuries which
the plaintiff
sustained as a result.

   14. Contributory negligence was raised by the second defendant but Mr
Pilkinton, who appeared for that
party, did not cross-examine the plaintiff
with a view to establishing any breach of failure to take due care for her own
safety.
Mr McConaghy, who appeared for the third party, cross-examined the
plaintiff not only on behalf of his own client but, by arrangement
with Mr
Mossop who appeared for the first defendant, also on behalf of that party. Mr
McConaghy suggested to the plaintiff that if
she had stepped off a high step
onto the ramp she would have known that such a course was dangerous. She
readily acceded to that
proposition but maintained that the accident had not
occurred in that manner. As previously mentioned, I accept her evidence as to
the circumstances in which the accident occurred.

   15. It was also suggested that the plaintiff had otherwise failed to take
due
care for her own safety by walking down the asphalt portion of the ramp
rather than the footpath. However the footpath followed the
same gradient and
there was no evidence that it would have been less slippery in the frosty
conditions prevailing. The plaintiff
did say that she had seen ice to her left
but there is no evidence that she saw any at the location of the accident or
even that
the light would have permitted her to do so.

   16. I am not satisfied that contributory negligence has been established.

   17.
It was accepted by the first defendant that insofar as it may be liable
to the second defendant by reason of its failure to effect
insurance cover as
required by the contract between them, it would not be entitled to any
indemnity from the third party. Conversely,
it was accepted by the third party
that insofar as the first defendant may be held liable to the plaintiff for
breach of its common
law duty as pleaded in the Statement of Claim, it was
entitled to be so indemnified.

   18. The second defendant sought an indemnity
or contribution from the first
defendant for any liability which it may have to the plaintiff by reason of
the duty it owed to her
as occupier of the building. In addition to the usual
reliance upon the statutory provisions governing joint tortfeasors, that claim
was put on two bases. First, it was contended that the first defendant
breached its contractual obligation to effect policies of
insurance which
protected the second defendant from any liability to the public or to
employees of the first defendant including,
of course, the plaintiff.
Secondly, it was contended that the first defendant breached its contractual
obligation to take effective
measures for the protection and safety of persons
using the street, road lane or footpath adjoining or adjacent to the premises.

   19. The contract contained two clauses imposing obligations upon the first
defendant to effect policies of insurance providing
cover for the second
defendant. These clauses were in the following terms:

   3.4.1 "Prior to the commencement of Cleaning Services
under this agreement
the Contractor will be required to effect a Public Liability Insurance policy
in the names of the Library and
the Contractor to the value of $5,000,000 with
an Insurer and in terms approved in writing by the Library. The policy is to
be maintained
during the currency of this Contract. The Library may at any
time during the currency of this Contract increase the sum insured and
the
Contractor is obliged to comply with any such requirements."

   3.4.5 "The Contractor shall ensure his liability (including
common law
liability) as required under any applicable Worker's Compensation Statute or
Regulation thereunder against any loss, damage,
action, suit or proceedings,
costs and expenses whatsoever as a result of personal injury or death to any
person employed by the
Contractor in, or in connection with, the performance
of the Cleaning Services. The insurance effected by the Contractor pursuant
to
this condition shall be extended to cover all liabilities of the Library at
common law and under any applicable statute or other
legislative provision.
The insurance cover in respect of the liabilities of the Library at common law
shall be for an amount not
less than the sum approved by the Library and the
policy shall be effected with an Insurer, or Insurers approved in writing by
the
Library, which approval shall not be unreasonably withheld. The policy is
to be maintained during the currency of the Contract."

   20. It was common ground that, whilst the first defendant had effected a
public liability insurance policy in the sum of $5,000,000
and also had a
workers' compensation policy, neither provided any cover for the second
defendant.

   21. Mr Pilkinton submitted
that the provisions contained in paragraphs
3.4.1 and 3.4.5 gave rise to straightforward obligations to effect policies of
insurance
which would protect the second defendant from any claims which might
be made by members of the public or employees of the first defendant.
Since it
failed to fulfill its contractual obligation to effect such insurances the
first defendant was liable to the full extent
for any loss which the second
defendant might sustain as a result of the present action. He drew support for
this proposition from
the decision of Kelly J in Cervellone v Besselink Bros
Pty Ltd & Anor (1984) 55 ACTR 1 and submitted that the subsequent
decisions
of Gallop J in Jurjevic v Tereel Pty Ltd t/a Celtic Plastering Co
& Anor (unreported, ACT Supreme Court, 17 October 1986) and
Higgins J in
Steele v Twin City Rigging Pty Ltd & Ors (1993) 114 FLR 99 should be
distinguished on the basis that the contract
between the defendants in the
present case contain no words of limitation.

   22. In my view it is appropriate to construe paragraph
3.4.5 as requiring
the first defendant to obtain insurance cover in respect of any workers
compensation or common law liability which
it might have in relation to its
employees and to extend such cover to the second defendant, and to construe
paragraph 3.4.1 as requiring
the first defendant to insure the second
defendant against claims by members of the public other than those employees.
A similar
approach was taken by Blackburn CJ in Canberra Formwork Pty Ltd v
Civil and Civic Ltd & Anor (1982) 41 ACTR 1 at 23.

   23.
In addition to these paragraphs relating to insurance paragraph 3.4.4
contained certain covenants of indemnity. That paragraph is
in the following
terms:

   "(a) In accordance with 3.4.1 the Contractor shall indemnify and keep
indemnified the Library, its officers,
servants and agents from and against
all claims, demands, actions, suits or proceedings whatsoever that may be made
by any person
in respect of loss, injury or damage, whether to any person, or
property, cause, or alleged to have been caused, by the Contractor,
any
sub-Contractor of the Contractor or their respective servants, employees or
agents or for any other person for whose negligence
or wrongdoing the
Contractor is vicariously liable. This indemnity is to also cover any
negligence or other wrongful act or wrongful
omission of the visitors,
invitees or licensees of the Contractor or any sub-Contractor (sic).

   (b) The Contractor shall, as between
the parties Contract be liable for
loss or damage (including injury whether or not resulting in death) suffered
by the Library, its
officers, servants or agents as per 3.4.4 (a) to the
extent that the loss or damage does not result from the fault or negligence
of
the Library, its officers, servants or agents."

   24. It may be noted that the clause exempting liability for damage
resulting
from the fault of the second defendant Library or its servants or
agents is expressed to qualify only paragraph (b) of the clause
which deals
with loss or damage sustained by the second defendant or its servants or
agents. However, paragraph (a) provides a right
of indemnity only in respect
of loss, injury or damage caused by the contractor, in this case the first
defendant or by other people
having a relationship to the first defendant of
the kind therein specified. Accordingly, it seems clear that despite the
apparently
unlimited terms of clause 3.4.1 any right of indemnity which might
be implied from those terms should be limited in this manner.
In particular,
clause 3.4.1 should not be taken to require the first defendant to indemnify
the second defendant in respect of any
liability to the public caused by its
own negligence or that of its servants or agents. For these reasons paragraph
3.4.1 does not
support the second defendant's claim.

   25. Paragraph 3.4.4 adverts specifically to paragraph 3.4.1 but not to
paragraph 3.4.5.
Nonetheless the last mentioned paragraph falls to be
determined in the context of the contract as a whole including paragraphs
3.4.1
and 3.4.4.

   26. The principles governing the interpretation of clauses said to exempt
one party to a contract from liability for
its own negligence were stated by
Lord Greene MR in Alderslade v Hendon Laundry Ltd [1945] KB 189 at 192 and
were referred to with
approval by Lord Morton of Henryton in Canada Steamship
Lines Ltd v The King [1952] AC 192 at 208 where he summarised them in the
following terms:

   (1) "If the clause contains language which expressly exempts the person in
whose favour it is made (hereafter
called "the proferens") from the
consequence of the negligence of his own servants, effect must be given to
that provision . . .
(2) If there is no express reference to negligence, the
court must consider whether the words used are wide enough, in their ordinary
meaning, to cover negligence on the part of the servants of the proferens. If
a doubt arises at this point, it must be resolved against
the proferens . .
.(3) If the words used are wide enough for the above purpose, the court must
then consider whether "the head of
damage may be based on some ground other
than that of negligence", to quote again Lord Greene in the Alderslade case,
the "other
ground" must not be so fanciful or remote that the proferens cannot
be supposed to have desired protection against it; but subject
to this
qualification, which is no doubt to be implied from Lord Greene's words, the
existence of a possible head of damage other
than that of negligence is fatal
to the proferens even if the words used are prima facie wide enough to cover
negligence on the part
of his servants."

   27. This passage was quoted by Lord Fraser of Tullybelton and Lord Keith of
Kinkell in Smith & Anor v South
Wales Switchgear Co Ltd (1978) 1 WLR 165
at 172 and 178 respectively. Lord Wilberforce, Viscount Dilhorne and Lord
Salmon expressed
agreement with the speeches of their Lordships. As Lord
Fraser of Tullybelton observed, at 172, the principles are equally applicable
to the interpretation of clauses of indemnity which in many cases are merely
the obverse of clauses of exemption. Furthermore, whilst
neither the Court of
Appeal nor the Privy Council addressed this issue, the same principles would
seem to be applicable to any determination
of whether a clause which may
provide limited protection against the negligence of a proferens' servants
should be construed to provide
a broader basis of protection covering
negligence in other circumstances.

   28. Insofar as the first of these principles is concerned
his Lordship also
said that he could not see how a clause could "expressly" exempt or indemnify
the proferens against his own negligence
unless it contained the word
"negligence". In the present case clause 3.4.5 does not use the word
"negligence" and I do not accept
that the phrase "all liabilities of the
Library at common law" should be construed as a necessarily embracing term in
this context.

   29. On the other hand, when one turns to the second principle referred to
by Lord Morton, it does seem to me that these words
are wide enough, in their
ordinary meaning, to cover negligence on the part of the servants of the
proferens.

   30. Accordingly,
the issue falls to be determined in accordance with the
third principle which requires consideration of whether the head of damage
for
which protection is to be provided might be based upon some other ground. In
my view it is significant that the clause does not
require the contractor to
take out a fresh insurance policy in favour of the second defendant but to
extend the insurance effected
by the contractor pursuant to its obligation
under the same clause. That obligation is an obligation to ensure "his
liability (including
common law liability) as required under any applicable
worker's compensation statute or regulation thereunder against any claims
for
loss, damage, action, suit or proceeding, costs or expenses whatsoever as a
result of personal injury or death" to any of the
contractor's employees. The
requirement that the insurance effected by the contractor be extended to cover
liabilities of the second
defendant suggests that what was contemplated by the
parties was that the second defendant would be added as a further insuree
under
the same policy and receive insurance cover of the same character. An
insurance policy of the kind required under workers' compensation
legislation,
(albeit including common law liability) is quite different from the type of
policy normally obtained to cover liability
by occupiers of buildings to
members of the public or other entrants.

   31. It is true that any liability under worker's compensation
legislation
would fall upon the employer, in this case the first defendant, and that
liability of that kind would not normally extend
to a person in the position
of the second defendant. However, in my view a body such as the second
defendant might reasonably wish
to be indemnified in relation to any risk that
it may ultimately incur liability of that kind. Such a risk might arise
because, for
example, it has presumed to direct the employee to carry out the
work in a particular manner and that exposed the employee to a foreseeable
risk of injury. In an extreme case the services of the employee might be
regarded as having been "temporarily lent or let on hire"
to the second
defendant and the second defendant might be construed as an employer within
the meaning of section 6(1) of the Workers Compensation Act 1951. There might
also be some concern that a statutory provision or further legislation which
might be enacted during the currency of
the contract might make a body in the
position of the second defendant responsible for any liabilities which the
contractor may have
owed to its employees but was unable to meet due to
insolvency. In my view, these risks cannot be dismissed as so fanciful or
remote
that the proferens could not be supposed to have desired protection
against them.

   32. The existence of another ground of potential
liability to which the
relevant obligation may relate might of itself be fatal to the proferens.
However in the present case that
ground of liability is the one naturally
suggested by the language of paragraph 3.4.5 and the contention that it
required the first
defendant to insure the second defendant against his own
breach of duty as occupier of a particular building would require a somewhat
strained construction of that language. Furthermore, it is difficult to see
what utility there would have been in requiring a cleaning
contractor to take
out insurance in the name of the second defendant which would have protected
it from liability as an occupier
only in relation to any claims made by
cleaning staff and not by any other member of the public.

   33. The contractual obligation
of the first defendant to take measures to
protect people using adjoining streets, roads, lanes or footpaths must again
be construed
in accordance with the contract as a whole. It must also be
construed in the light of the circumstances that might reasonably be
supposed
to have been in the contemplation of the parties. In my view it could not have
been contemplated that the first defendant
would have carried out structural
modifications to thoroughfares over which it had no lawful control or to
regulate the activities
of third parties over whom it had no lawful control.
The clause should be construed as requiring the first defendant to take
effective
measures to protect people using adjoining thoroughfares from any
hazards posed by the cleaning or other activities undertaken by
the first
defendant. Even if this obligation extended to the protection of the first
defendant's own employees the evidence does
not establish that it had been
breached. I do not accept that the first defendant's failure to warn the
plaintiff or remonstrate
with the second defendant over the state of its own
property should be so regarded. In any event, even if the first defendant's
failure
could be seen as a breach of contract that would not warrant a greater
apportionment of liability than that which would be justified
by the same
failure in tort.

   34. Having regard to the extend of their responsibility for the plaintiff's
injuries I think it
is appropriate that the first defendant bear 25% and the
second defendant bear 75% of the sum recoverable by the plaintiff.

   35.
I accept the plaintiff's evidence as to the pain and disabilities which
she suffered following the accident. I also accept her evidence
as to the
onset of lower back pain. Mr McConaghy strenuously argued that I should reject
her evidence on this point because there
was no contemporaneous record of
complaint concerning these symptoms until September 1993 and that it was
unlikely that she would
remember precisely when these symptoms commenced given
the time that had elapsed since. Whilst I appreciate the force of this
argument
I formed the impression that the plaintiff was a stoical person who
had gone back to work notwithstanding the pain caused by her
various injuries
because her husband was disabled and she was the sole breadwinner. Having
regard for the need to return to work,
and the fact that she was then required
to do manual work for 12 hours per day there is nothing inherently implausible
about her
evidence to the effect that she was conscious of the pain in her
back notwithstanding the other symptoms from which she was then
suffering. It
also seems likely that upon her return to work her duties as a cleaner would
have required her to bend or otherwise
move in a manner likely to give rise to
pain from the back injury.

   36. On the other hand, it seems clear that she now has a significant
injury
to her shoulder and that this is unrelated to the accident. That injury seems
to have become progressively more painful. Furthermore,
her husband died in
August 1996. The plaintiff explained that she had been "pushing herself" to
support her husband and could not
see why she should hurt herself by
continuing to work thereafter. Whilst I accept that her evidence to the effect
that she intended
to work well into her sixties was genuinely given, I do
entertain some doubt as to whether that resolve would have been maintained
once the need for her to maintain her husband had passed and she had begun to
develop significant pain in her shoulder. Furthermore,
the plaintiff had
ceased working at the Stromlo High School in September 1994 and had thereafter
worked only 8 hours per day. Whilst
I accept that this decision was influenced
by the pain she was then experiencing I am obliged to take into account the
possibility
that she would in any event have reduced her hours of work as her
husband's condition continued to deteriorate and he presumably
required more
care and attention. Furthermore, whilst the plaintiff's general health seems
unremarkable and she was obviously a conscientious
worker there was obviously
some reasonable chance that she would ultimately become unable to sustain work
of that kind at least on
a full time basis.

   37. In the circumstances I propose to allow a figure of $30,000.00 for past
economic loss. For the purpose
of calculating interest that sum needs to be
reduced by $7,712.65. being the gross value of weekly payments made to her
under the
Workers Compensation legislation and I have assessed interest at
$2,229.00 on the residual figure. The plaintiff has also lost the
superannuation entitlement which she would have had in respect of those loss
earnings and I allow the sum of $2,100.00 together with
interest on this
amount in the sum of $210.00.

   38. The evidence suggests that the pain in her shoulder presently makes it
difficult
for her to carry out housework at her daughter's house and I think
it is most unlikely that she would be able to sustain full time
work as a
cleaner in the future. Nonetheless, she would have had some residual earning
capacity and I propose to allow a further
sum of $20,000.00 as a buffer for
the future.

   39. Out of pocket expenses are agreed in the sum of $8,184.81 and the Fox v
Wood
component is agreed at $3,071.17.

   40. There is no evidence as to the likely quantum of any future medical or
pharmaceutical expenses
but it does seem likely that she will continue to
experience pain as a result of the injuries which she received as a result of
the
accident though, as Mr McConaghy was quick to point out, perhaps also
as a result of the unrelated shoulder condition. I allow
the plaintiff the sum
of $1,000.00.

   41. I assess general damages in the sum of $30,000.00 and add a further sum
of $1,500.00
for interest on the component referable to the period prior to
trial which was $15,000.00.

   42. That amounts to $98,194.98 and
I round this sum off to $98,195.00.

   43. Whilst the plaintiff is entitled to succeed against both defendants in
respect of this
sum, as between the defendants, the first defendant should
contribute an amount of $24,548.75 and the second defendant an amount
of
$73,646.25.