Hunter Garth Lonsdale v Ian Smith [2000] ACTSC 15 (15 February 2000)

Last Updated: 29 February 2000

Hunter Garth Lonsdale v Ian Smith

[2000] ACTSC 15 (15 February 2000)

CATCHWORDS

NEGLIGENCE - personal injury - injuries to wrist, pelvis and rib from fall into car inspection pit - plaintiff invited to view garage by defendant - failure of defendant to provide sufficient warning of open pit - no issue of principle.

DAMAGES - injuries to wrist, pelvis and rib in 1995 - distorted wrist - previous injuries in 1989 and 1990 - almost complete recovery from earlier injuries - possibility of failure to have continued to be certified fit for employment as taxi driver.

John James Memorial Hospital Limited v Dulcie Beryl Keys [1999] FCA 678

Romel El-Sheik v Australian Capital Territory Schools Authority [1999] ACTSC 90

No. SC 702 of 1998

Judge: Miles CJ

Supreme Court of the ACT

Date: 15 February 2000

IN THE SUPREME COURT OF THE )

) No. SC 702 of 1998

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: HUNTER GARTH LONSDALE

Plaintiff

AND: IAN SMITH

Defendant

ORDER

Judge: Miles CJ

Date: 15 February 2000

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $177,425.00.

1. The plaintiff sues the defendant for damages for personal injuries which are alleged to have been caused by the defendant's negligence. The plaintiff was injured when he fell into an inspection pit in the garage of the defendant's home at Chifley in the early hours of 10 August 1995.

2. The particulars of negligence alleged are as follows:

"(a) Failing to warn the plaintiff of the existence of the inspection pit;

(b) Failing to cover the inspection pit;

(c) Failing to take any or any adequate precautions for the plaintiff's safety;

(d) Exposing the plaintiff to risk of injury of which the defendant knew or ought to have known;

(e) Failing to provide lighting or adequate lighting to illuminate the pit;

(f) Permitting the inspection pit to be or to become or to remain in an unsafe and dangerous state and a danger to the plaintiff;

(g) Failing to take any or any reasonable, timely or effective measures to make the inspection pit safe;

(h) Causing or permitting the plaintiff to enter the garage when he knew or ought to have known that it was in an unsafe condition and dangerous to enter in the circumstances."

3. In the statement of defence filed, the defendant denied the injury, but at trial the only issues were negligence and contributory negligence. Particulars of the latter were as follows:

"(a) Failing to act in a safe manner appropriate to the circumstances

(b) Failing to heed the defendant's warning

(c) Walking into an unilluminated space without listening to the warning of the defendant

(d) Failing to keep a proper lookout."

4. The plaintiff was employed as a taxi driver. He was working four shifts a week from about 2.30 p.m. to 3 a.m. At the beginning of his shift on 9 August 1995, he left his car at his employer's house at Curtin. At the end of the shift he collected his car and drove to the Canberra Southern Cross Club at Woden.

5. The defendant's wife dropped the defendant off at the Hellenic Club, also at Woden, sometime during the evening of 9 August. He had three or four schooners of beer there and walked across to the Southern Cross Club. When he was consuming another schooner of beer, he noticed the plaintiff and called him over. He knew the plaintiff as a taxi driver who had driven him home on previous occasions. The defendant had a practice of not driving when he intended to have a few beers at one or other of the clubs. He claimed in evidence that it was not his custom to get intoxicated, and that in fact he was not intoxicated on the night in question. However, I find that he was affected to some extent by the liquor he had consumed over several hours.

6. According to the plaintiff, he had consumed a cup of coffee and was drinking a small scotch whisky when greeted by the defendant. He had one more whisky whilst he and the defendant talked for a short while. The defendant asked for a lift home. On the way home the defendant invited the plaintiff to call in and see his new workshop. The plaintiff at first declined the invitation but the defendant insisted. The plaintiff was not really interested but thought it easier to do what he was asked. He drove into the defendant's driveway and up towards the back of the house.

7. The plaintiff's evidence continued. The driveway of the house was lit, but the backyard was in relative darkness. The two men walked across the backyard to what the plaintiff could make out to be a building with an open entrance. The plaintiff entered at about the same time as the defendant said something to the effect that he was going to turn on the light. By that stage the plaintiff had advanced, as he said, three or four steps into the comparative darkness of the interior and he fell into what turned out to be a vehicle inspection pit some six feet in depth.

8. The defendant's evidence was that he told the plaintiff about the inspection pit whilst they were in the club and further invited the plaintiff to use it if the plaintiff wanted to carry out lubrication work on his car. On the way to the defendant's home, the defendant said, "You might as well have a look at the inspection pit". At the house controlled sensor floodlights came on when the two men walked into the backyard. A plywood board which usually covered the inspection pit was not in place at the time. However, a child's playpen, unfolded, formed a barrier across the entrance to the garage. The floodlights illuminated the whole of the backyard as well as the playpen and the first few metres of the interior of the garage. The defendant stepped over the playpen and reached around to a switch inside the garage and said, "Hang on, I'll go and turn the lights on". He looked around and saw the plaintiff climb over the playpen and fall down the steps into the inspection pit just as he was switching on the light.

9. In cross-examination the plaintiff said that the driveway was lit by a light, but there was nothing lighting the backyard or the entrance to the garage. He did not deny stepping over a barrier, but could not remember doing so. According to the defendant, there were two floodlights set together over the garage entrance in such a way as to illuminate the whole of the backyard and one set in particular to illuminate the area near the driveway. The sensor was set to trigger the lights when there was movement near the back door of the house or near where the line of the back of the house met the driveway. The sensor and the lights were working efficiently. The playpen was fixed to the garage by wire or rope. Its purpose was to keep a dog and a young child out of the garage. The defendant's evidence was confirmed, so far as it might be confirmed, by photographs taken several months after the event.

10. In general, I prefer the evidence of the plaintiff where it conflicts with that of the defendant on matters within the plaintiff's knowledge. Apart from observation of each witness whilst giving evidence, it seems to me that there is a greater likelihood that the plaintiff's account of events leading up to the arrival at the house is correct. It is likely that the defendant's behaviour and his account of it was affected by his consumption of liquor. It is likely that the plaintiff was motivated by a mixture of courtesy and resignation to accede to the defendant's insistence that he inspect the defendant's garage, which did not hold any inherent interest to the plaintiff as far as he was concerned. However, the plaintiff did not pretend to be an accurate witness on some matters of detail. It may well have been that the defendant did mention something about an inspection pit, but if he did, he failed to impress it sufficiently upon the plaintiff for the plaintiff to be aware of it.

11. I think that the plaintiff was mistaken in his evidence about the lighting being in the driveway and not the backyard. The photographs are positive proof (unless the defendant was lying, which I do not think he was) of the state of the lighting and of the presence of the playpen barrier across the front of the garage. It is curious that the plaintiff does not remember the playpen since he must have stepped over it. However, nothing had been said or done by the defendant to put the plaintiff on notice that there was any danger whatsoever in entering the garage. From the plaintiff's point of view it promised to be an entirely unmemorable occasion, and the shock of the unexpected fall may well have affected his recollection of the seconds beforehand.

12. Photographs show that part of the extended framework of the playpen had a hinged section in it. It is not clear whether that section might be opened like a gate. If that was possible, and it was open on the night in question, howsoever that happened, it would explain the plaintiff's absence of memory of stepping over the gate. The position of the hinged section is such that unless the pit were covered, one would step over or through that section of the playpen and almost immediately into the pit. Indeed the photographs show the leading edge of the pit to be much closer to the playpen than suggested by the plaintiff's evidence that he took three or four steps into the garage before he fell.

13. I reject the evidence of the defendant that the floodlights gave some direct illumination into the garage, although I accept that it is likely that the general glow or reflection from light in the backyard would have had some effect in reducing the darkness of the interior of the garage. I also reject the evidence of the defendant that there was no glare from the floodlights for a person approaching the garage. On the contrary, since one of the floodlights was set to illuminate the driveway area, it is likely that for a person approaching the garage from the driveway, the glare would have been quite strong. The floodlights were strong, 120 watts each. Further, the effect of the contrast between the likely glare on the vision of that person and the comparative darkness of the interior of the garage made it likely that it would be difficult for the person to visually observe the state of the interior of the garage.

14. There is nothing on my findings to show that the defendant did anything to warn the plaintiff, until it was too late, of the very substantial and very unusual danger of an uncovered pit inside a suburban domestic garage. The defendant knowing that he had, for some reason he did not disclose, left the pit uncovered and in that very dangerous condition, should have taken effective steps to warn the plaintiff of that danger before the plaintiff entered the comparative darkness of the garage. The defendant is liable in negligence.

15. There was some conflict between the plaintiff and the defendant about a fence or gate at the end of the driveway where it joined the backyard. The defendant's evidence is more likely to be accurate on this than that of the plaintiff, but again I do not think that, in the circumstances, the inaccuracy of the evidence of the plaintiff affects his credibility or his reliability on the crucial matter of the lack of warning and the comparative darkness of the interior of the garage.

16. The defendant's wife was at home at the time and was on the scene very quickly. She helped the plaintiff into a car to go to hospital. One would expect that she would have been called by the defendant or on his behalf if she could have said anything to assist the defendant's case. There was no explanation for her absence and so I infer that she would have said nothing to assist.

17. As I said, the defendant's warning came too late. There was no failure on the part of the plaintiff to take reasonable care for his own safety.

Damages

18. The plaintiff was born on 6 September 1931. He followed a variety of occupations until he took up taxi driving in 1987. Until then he had been in good health and followed an active lifestyle. He had been a champion skier when a younger man. He continued to ski and to play golf on a low handicap. He worked long hours. On 19 January 1989 he was involved in a motor vehicle collision which left him with injuries to a degenerating spine which until then had been without symptoms. He was back to five shifts a week and a full range of activities some weeks at least before he suffered a further injury in February or March 1990. On that occasion he was assaulted by a passenger and received injuries to his head. The exact nature of the injuries are not clear. They were sufficient to put him off work for three or four months after which he resumed work, doing initially two and then three shifts a week. Gradually he worked up to four shifts a week for some several weeks prior to the injury on 10 August 1995. He had also resumed playing golf to the extent that he won a taxi drivers' tournament in March 1995 and he took two skiing trips with his son in the winter of that year.

19. The nature of the taxi business in which he worked was such that it is difficult to estimate the value of the loss of earnings that has flowed from the 1995 injury. For the several weeks during which he had worked the four shifts it is likely that his share of the net takings from the taxi averaged about $430 per week. Over a longer period, when he was working less frequent shifts following the earlier injuries, the average was naturally much less.

20. Immediately following his fall into the pit, the plaintiff was removed with assistance and taken in the defendant's car to hospital. He was dazed and in considerable general pain. X-rays revealed a fracture to the left wrist which was set under local anaesthetic and he was given pain-killing medication. It was not until he tried to leave hospital sometime later the same morning that further x-rays were taken and it was discovered that he had a fracture of the left pelvis. Later the same day he was discharged in a wheelchair. The plaintiff saw Dr Morris, an orthopaedic surgeon, within a few days. He said that Dr Morris manipulated the wrist and replaced the cast. After two weeks or so he consulted Dr Berenson, his local general practitioner, and has continued under his care, subject to reference to specialist opinion and surgery. At some stage it was discovered that he had a fracture of the second or third left rib which resolved itself reasonably quickly. The plaster on the wrist was finally removed on 10 September 1995 and the plaintiff was sent for physiotherapy for six weeks. During the first several weeks he was subject to particular pain and restriction of activities, being unable to get around except on his hands and knees. He was and remains separated from his wife or former wife and had the limited assistance of a teenage son.

21. The wrist in particular continued to give pain and concern. It was described by Dr Berenson as "very distorted". The plaintiff was referred to Dr Roberts, another orthopaedic surgeon, who first saw him on 23 November 1995. Dr Roberts noted considerable restriction of movement of the left wrist. He carried out an arthroscopy under general anaesthetic on 9 December 1996. There was no noticeable improvement either in function or in symptoms and Dr Roberts performed a second operation involving removal of a dorsal bony spur and an arthrotomy of the wrist. The plaintiff was in extreme pain for several weeks after the second operation. Dr Roberts advised against further surgery, although arthrodesis remains a possibility. In the meantime the plaintiff's medication was increased to include antidepressants.

22. The second operation achieved some improvement but it was not until some two years later that the plaintiff ceased to be affected by what he called "pain in static circumstances". However, use of the wrist even for relative minor tasks continues to bring on pain which can last for as much as a couple of days. There is also pain in the hip which is the result of the pelvis fracture. The plaintiff cannot drive for long without pain such that it forces him to stop. According to his evidence, this happens after about three quarters of an hour driving, but I note that in his report of 14 October 1999 Dr Roberts wrote that the plaintiff told him that it happened after a few hours driving. The plaintiff has tried playing golf, but is it clearly no longer open to him, similarly with skiing and boating. He tried a couple of shifts of taxi driving. There was the added problem of trying to help with passengers' luggage. Clearly he is unfit to work as a taxi driver and indeed, having regard to the additional factor of his age, in any remunerative employment. There is no question that his disabilities relate to the injury for which the defendant is responsible.

23. The only substantial issue on damages apart from the question of assessment of the figure under the various heads is whether there should be some sort of reduction or discount for the fact that the plaintiff had before the 1995 injury already suffered injuries which had been sufficient to put him off work for some months on each occasion. On the evidence, however, the effects of those injuries had all but ceased to be of any practical significance by August 1995. There was little evidence of the nature of the injury to the head in the assault in 1990 and the plaintiff must be regarded as having recovered completely from that. As to the effect of the motor vehicle accident, it is true that in proceedings arising from it, whether for damages or worker's compensation it is not clear, there was reliance on "pain and apparent neck weakness" in the years preceding a letter written by his employer on 5 September 1994. It claimed that his earning capacity had been "much reduced" because of his nervousness about undesirable passengers. However, the letter also acknowledged that "in recent months" he had been able to get back to something like a normal shift.

24. The plaintiff himself claimed in evidence in the present proceedings that he intended to work until the year 2001, when his son would have finished tertiary education. There is no need to disbelieve him on this score, but there is some justification for the submission on behalf of the defendant that with his pre-existing degenerative condition in the spine, and increasing asthmatic-type complications arising from his persistent heavy smoking, there was a substantial possibility that he would not have continued to work twelve hour shifts. There was indeed a substantial possibility that he might not have continued to be certified fit in the annual medical examinations that apparently are required of licensed taxi drivers.

25. On this basis, I approach the calculation on past loss of earning capacity at $400 net per week, which to the date of hearing gives a figure of about $92,000. I discount that figure for contingencies and round it out to $85,000.

26. Future loss of earning capacity for a period of no more than two years from the date of hearing on 2 November 1999 on the 3 percent discount tables may be calculated initially at $40,400 but discounted for contingencies to $35,000.

27. The plaintiff received the amount of $62,002 worker's compensation to the date of hearing, and the difference between that and the figure now assessed for the value of past loss of earning capacity, namely $85,000, is some $23,000 I award interest on that sum at $4,175.

28. The plaintiff's out-of-pocket expenses for medical treatment have been paid by the workers' compensation insurer or under social security programs. The former amount of $9,884.60 will be included in the damages. The latter amount is not claimed and will not be included. In addition there are probably other expenses which the plaintiff has had to pay himself. I am not convinced that they have exceeded or will exceed about $500 a year. Future cost of gardening, cleaning and the like is included in the award for general damages. The prospect of further surgery is too dim to be included under this head of out-of-pocket expenses. Doing the best I can on the material, and trying to exclude expenses for medication for the asthmatic condition, I award a total of $11,000 for out-of-pocket expenses in the past and $5,000 for out-of-pocket expenses in the future.

29. For pain and suffering and loss of enjoyment of life, I award $35,000, noting the decision of the Full Court of the Federal Court in John James Memorial Hospital Limited v Dulcie Beryl Keys [1999] FCA 678 and not repeating what I said in Romel El-Sheik v Australian Capital Territory Schools Authority [1999] ACTSC 90. I apportion $25,000 to the past and award interest on that component. I calculate the interest at $2,250.

30. In summary, the award is as follows:

Past loss of earning capacity $85,000.00

Interest thereon $ 4,175.00

Future loss of earning capacity $35,000.00

Past out-of-pocket expenses $11,000.00

Future out-of-pocket expenses $ 5,000.00

Pain and suffering and loss of enjoyment of life $35,000.00

Interest thereon $ 2,250.00

Total: $177,425.00

31. That appears to me to be an appropriate global award and the plaintiff is at liberty to recover judgment accordingly. Unless the parties wish to be heard, I order the defendant to pay the plaintiff's costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, the Chief Justice.

Associate:

Date: 15 February 2000

Counsel for the plaintiff: Mr R Mildren

Solicitor for the plaintiff: Vandenberg Reid

Counsel for the defendant: Mr C Whitelaw

Solicitor for the defendant: Blake Dawson Waldron

Date of hearing: 1 and 2 November 1999

Date of judgment: 15 February 2000