Dunn v Commissioner for Housing for the ACT [2002] ACTSC 6 (1 March 2002)

Last Updated: 12 April 2002

Alicia Dunn v Commissioner for Housing for the Australian Capital Territory [2002] ACTSC 6 (1 March 2002)

CATCHWORDS

NEGLIGENCE - landlord - failure to repair worn carpet on stairs - breach of duty to tenant

CONTRIBUTORY NEGLIGENCE - tenant falls on stairs - aware of defective carpet

DAMAGES - personal injury - assessment - soft tissue injury - no issue of principle

Fry v McGufficke [1998] FCA 1499

Jones v Bartlett [2000] HCA 56, (2000) 176 ALR 137

Wilson v Peisley (1975) 7 ALR 571

No. SC 183 of 1997

Coram: Master T. Connolly

Supreme Court of the ACT

Date: 1 March 2002

IN THE SUPREME COURT OF THE )

) No. SC 183 of 1997

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ALICIA DUNN

Plaintiff

AND: COMMISSIONER FOR HOUSING FOR THE AUSTRALIAN CAPITAL TERRITORY

Defendant

ORDER

Coram: Master T. Connolly

Date: 1 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment for the plaintiff in the sum of $38.834.40

2. Costs reserved

1. This is a claim for damages for personal injuries arising from a fall which the plaintiff claims occurred on the stairs of her residential premises, which were leased from the defendant, on or about October 1995. It is the plaintiff's case that she tripped on worn carpet on the stairs of the premises, and that the defendant was negligent in allowing the premises to be tenanted in circumstances where worn carpet on the stairs represented a foreseeable risk of injury to a person using the stairs.

2. The plaintiff was born in 1966 in Canberra, and attended local schools to School Certificate level. She then worked for about twelve months as a shop assistant in a discount department store, and was then unemployed for a period until the birth of her first child in 1984. She continued at home caring for her four children, the last of which was born in 1993. She says it would have been her intention to return to work when her youngest child began school, and the only work she has otherwise undertaken was a brief period as a cleaner in 1993 when she cleaned a persons house to pay off a debt.

3. Her case was pleaded on the basis that the fall caused injury to her lower back, and also aggravated a pre existing back problem. It was her evidence, however, that the prior back problem, which she attributed to a fall on wet stairs in about 1985, had not been causing ongoing difficulties. She denied that her back problems had ever caused leg problems.

4. Liability was strongly in issue in this case, with the defendant urging that I could not be satisfied that the accident had ever happened, and putting the proposition that the plaintiff could not be accepted as a witness of credit. The plaintiff acknowledged in cross-examination that she had not been truthful in certain aspects of her evidence in relation to pre existing injuries, and in her presentations to doctors examining her for medico legal purposes, and I will address this in due course.

5. The plaintiff and her family took possession of the premises from ACT Housing in September 1994. In evidence before me was the Condition Report form used by ACT Housing at the time to record comments both by the housing inspector and the tenant as to the condition of the premises. The comments by the housing trust inspector, which I am satisfied from the oral evidence were made by Mr Quodling on 27 September 1997, was in relation to the carpets "carpets throughout marked in places and have been cleaned". Mr Quodling gave oral evidence that it was his responsibility to undertake inspections of properties before a tenant moved in to ensure the safety of the premises, and to record the state of the premises at the commencement of the tenancy.

6. Mr Quodling gave evidence that he recalled that he walked up the stairs during the inspection, and said `the carpet on the stairs was in reasonable condition, but slightly worn." He was shown photographs tendered in the plaintiffs case which showed the condition the plaintiff says the carpet was in, and which clearly showed the carpet as being worn through. The plaintiff's evidence was that the photographs were taken some time after the accident, perhaps in 1996, but that they showed the condition of the carpet at the time she moved in to the premises, and at the time of the accident. Mr Quodling was asked in his evidence in chief whether he observed the carpet in that condition, and stated that he had not. He said that if he had he would have had the carpet removed and replaced, because it would have been a safety issue.

7. It is common ground that in July 1996 the premises were put up for sale and the pre-sale assessment undertaken by ACT Housing recorded that work that had to be done to prepare the premises for sale included "remove carpet on stairs and entry where hazardous". I note however that there is also an inspection report following the ending of the Dunn's tenancy in June 1996, and on this occasion the housing trust report states that the carpets were "worn" but also there was the annotation NSVD which Mr Quodling said meant "no sign of visual damage". It is hard to reconcile this with the photographs, which it was conceded were taken before the Dunn's left the premises, and the defendants decision to remove the carpet in July because it was "hazardous". I am satisfied that the carpet was in the state it is shown in the photographs before the Dunn's tenancy ended. The real issue between the parties, it seems to me, is thus the state of the carpets at the time the Dunns entered the premises, and at the time of the accident. Mr Quodling agreed that the state of the carpet on the stairs indicated by the photographs was hazardous, and should have resulted in the carpet being replaced.

8. I was impressed with Mr Quodling's evidence, and accept him as a witness of truth, and as a thorough and conscientious officer. He acknowledged, however, that his duties would have involved him the inspection of thousands of properties in the course of the seven years since he undertook this inspection. He said that he was asked to attend on the ACT Government Solicitor only recently and shown the Condition Report that bears his signature as well as the photographs in evidence, and was asked to make a statement, which was the basis of his evidence.

9. He says in his statement "I prided myself in being very thorough in doing inspections and raised more work than was strictly necessary to ensure that the property was in an absolutely safe condition. I would not have left the carpet on the stairs had I considered that it was a potential danger- I would have arranged for it to be replaced or removed. I certainly would not have let the property be tenanted in the state as depicted by the photographs produced by the plaintiff."

10. He agreed in cross examination with the following proposition "Can I put it to you squarely that that statement by you does not indicate that you have a recollection of the nature of those stairs at that time, but instead you are relying on what you believe to be the way you carried out your job". I am satisfied that Mr Quodling does not have a precise recall of these premises.

11. The condition report document also provides for the tenant to make a comment, and I am satisfied that the plaintiff on 29 September 1994 wrote in her own hand on the report-"carpet on stairs worn right through". This contemporaneous note, which was not disputed as having been made on that date, provides strong support for the plaintiffs' case. Mr Quodling says that it was not his responsibility to respond to tenant complaints on the condition report, but that another officer in the agency should have responded to these complaints. He has no knowledge of what if any action was taken, but the form does bear an annotation in an unknown hand saying "all faults reported."

12. The plaintiff's credit was substantially tested by counsel for the defendant, and if it was only her evidence against Mr Quodling, I would not have been satisfied that the carpet on the stairs was worn through to an unsafe state at the time she moved in to the premises. The plaintiff's evidence as to the state of the carpet was supported by her husband and her mother, but most significantly, by the contemporaneous note, which does satisfy me that she did report to the Housing Trust that the carpet was "worn right through". This should have alerted the defendant that the carpet was in an unsafe condition, even where this had not been noticed by the conscientious inspector who had been through the premises some days previously. I am satisfied that the carpet on the stairs was worn right through, at least on 29 September 1995 when the plaintiff made this report to the defendant, and I am satisfied that the defendant as landlord was in breach of its duty as a landlord, as understood following the decision of the High Court in Jones v Bartlett [2000] HCA 56, (2000) 176 ALR 137, in failing to appropriately remedy the complaint. I am satisfied that a report of a carpet on a stairway being "worn right through" would amount to a report of a fault in the premises that should alert a reasonable landlord to a potential hazard, and that the defendant failed to take reasonable steps to make the premises safe by replacing the carpet, which Mr Quodling agreed would have been appropriate if the carpet was worn right through.

13. I therefore find that liability is established. The defendant pleaded contributory negligence, alleging that the plaintiff failed to take adequate care for her own safety. I have found liability primarily on the evidence that the plaintiff herself made a formal record on the condition report that the carpet on the stairs was "worn right through". I must find from this that Ms Dunn was aware of the condition of the stairs throughout the tenancy, and this indeed was accepted by the plaintiff. She agreed in cross-examination that it was necessary to take special care because of the hazardous nature of the carpet. She agreed that when she had the fall she "probably" was not looking, and said that this was because she was carrying her daughter. It was put to her that she should have taken more care because she was carrying a child, to which she agreed, but then said that she did not look on the day of the fall because she "just thought I'd be used to going up and down with her."

14. The defendant also tested the plaintiff on the extent to which she made further complaints to ACT Housing as to the state of the carpet, and it was her evidence that she had been told that her complaints would be attended to. I am not satisfied that absence of further complaint amounts to contributory negligence, but I am satisfied that the plaintiff was well aware of the nature of the stairs, and aware that they were hazardous, and that care should be taken.

15. It seems to me that I should find that the plaintiff was herself negligent in failing to take due care for her own safety in using the stairs when she knew that the carpet was worn right through and presented a hazard. In accordance with the apportionment legislation I should now proceed to assess damages, and then consider the extent to which the award should be reduced due to contributory negligence.

16. Mrs Dunn says that the accident occurred as her right heel became caught in the hole in the carpet at the top of the stairs as she was carrying her infant daughter down stairs just before lunchtime in October 1995. She does not recall which day. She says that she fell down backwards, still holding her daughter, on her bottom and back, and fell about three or four stairs. She says that no one else was home, and after the fall she went and sat for a while in the lounge room, and noticed pain in her lower back. She described the pain as intense and continual, but she did not see her general practitioner to make any complaint about the pain until some two months later.

17. Mrs Dunn agreed that when she saw Dr Fonseka in December 1995 she told her that she had lower back pain radiating down the right leg, and that she had had a two year history of recurrent episodes of similar pain at intervals. There is no mention in this consultation of the fall. She also saw a Dr Kwan, another general practitioner, on 12 December 1995, and he took a history of "Long history of LBP". She agreed that she told him of a long history of lower back pain since 1985 with pain radiating into her right leg. Dr Kwan's notes also make no mention of the fall in October 1995.

18. She was referred to physiotherapy and prescribed Naprosyn and Panadine Forte. Her general practitioner referred her to Dr Chandran, a neurosurgeon, for an opinion in July 1996. His report to the general practitioner records that Mrs Dunn presented "with a ten year history of intermittent back pain usually coming on every twelve months. Since October 1995 when she fell down the stairs at home there has been constant pain extending into the right leg". Dr Chandran took a history of a motor vehicle accident in May 1996, in which he took a history of neck pain, but no increase in back pain. The motor vehicle accident resulted in an action for damages by the plaintiff.

19. The plaintiff gave a similar history to other doctors, but it is clear that in the personal injuries claim which was litigated to a settlement in this court she claimed that the motor vehicle accident aggravated her pre-existing lumbar spine problems, and caused pain radiating to the leg, particularly the right leg. This pleading further goes to the credibility of the plaintiff, who has denied any history of prior back pain to various doctors, despite acknowledging in cross-examination her prior history.

20. The plaintiff in this case has clearly not been fully truthful in presenting her medical history to the various doctors that have examined her in these proceedings. This much was acknowledged by her in cross examination, and is also apparent from a report of her own expert, Dr Steinweg, who had the earlier medicine referred to him in October 2001 following the preparation of his report of 12 October 2001. In his letter to the plaintiff's solicitors of 24 October 2001 he said that the reports of Drs Chandran and Kithchen which do refer to pre-existing back pain differ significantly from the history that he had been give, and he accordingly adjusted his view on the attributability of her lumbar condition.

21. There seems to be a general agreement in the expert medical reports, once the various histories are taken into account, that the plaintiff suffers from ongoing lower back pain. In his report of 30 June 1998 Dr Chandran said "In the lumbar spine, this patient has ongoing symptoms which are causing some restrictions in lumbar flexion, causing some right lower limb pain and are attributable probably to an L5/S1 disc degeneration and disruption. The symptoms she experiences now were worsened by the fall of October 1995. A lumbar CT scan done in May 1996 showed then degenerative changes and disc bulge a L5/S1. There is also a history of episodes of lumbar back pain prior to the accident of October 1995. In my view therefore, the fall of October 1995 onto her buttocks has probably aggravated the underlying L5/S1 disc disorder."

22. Dr Steinweg, who had no history of prior back pain, took the view in his report of 12 October 2001 that the fall of October 1995 caused disc injuries to her lower back at L5/S1. He assessed this as amounting to a permanent impairment of the back of 15%. In his clarification he said that, due to the pre-existing condition he would now regard the accident as being responsible for two thirds of her back condition only.

23. Dr Cairns reported for the defendant on 6 September 2001. He had a history of no prior back pain, and concluded that the plaintiff sustained injury to her lumbar inter-vertebral discs at L5/S1 and L4/5 as a result of the fall. In a clarification of 1 November 2001 after he had access to a more accurate history, he said that he would apportion 50% of her present lumbar condition to the fall and 50% to the pre existent condition.

24. These doctors accept, on the basis of the plaintiff's history, that the motor vehicle accident of May 1996 did not affect the plaintiff's back condition. I note, however, that in a report to her then solicitor in August 1996 Dr Kwan says that when he examined her on the day of the motor vehicle accident she complained of "burning pain in her neck, headache and low back pain after the accident".

25. I find that the fall on the stairs in October 1995 the plaintiff aggravated a previously symptomatic degenerative low back condition. Where the action of a tortfeasor renders symptomatic a latent or degenerative condition that was previously asymptomatic, or aggravates a previously symptomatic degenerative condition, the tortfeasor will be held liable for that condition, but the fact that the condition was present prior to the accident must be taken into account. In Wilson v Peisley (1975) 7 ALR 571 Barwick CJ said at 575

"The trauma of the accident for which the appellant was responsible no doubt made a present reality of that which was ever a real possibility. Thus, whilst the appellant must pay for bringing out that condition, what he must pay must, in my opinion, justly reflect the fact that that condition was not merely latent in the respondent but that events, not of an unusual or unlikely kind, could and might in the ordinary course of life have evoked that condition had not the appellants negligence intervened."

26. In the present case I am satisfied that the plaintiff had a prior degenerative back condition which had been present for some ten years before the fall, and that this had produced intermittent but persistent symptoms, including pain radiating to the leg, indicative that the apparently long standing disc irregularities observed on scans had been present before the accident. It seems from my reading of the medicine that this much is common ground. Dr Steinweg for the plaintiff takes the view that one third of the condition is attributable to her underlying condition, while Dr Cairns, who reported for the defendant, attributes the responsibly equally between the accident and the underlying degenerative condition.

27. Taking all of the evidence into account I prefer Dr Cairn's views, and assess the plaintiff on the basis that her back pain is attributable equally between this fall and the underlying condition. I note also that the motor vehicle accident of May 1996, on the evidence of her general practitioner, also resulted in back pain, which she has consistently denied, but which was a basis of her claim for compensation in respect of that accident, which has been settled in this court.

28. The principle to be applied at common law in determining compensation in personal injuries cases 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 in if he had not sustained the wrong for which he is now getting his compensation'."

29. In respect of general damages, I would assess the plaintiffs damages, on the basis set out above, at $30,000, for which I attribute $20,000 to past loss generating interest of $2543 for a total award of $32,543.

30. The plaintiff's claim for economic loss was put, on the plaintiff's counsel's closing submission, on the basis of a small buffer. The claim was particularised, however, in some detail, on the basis of a loss of 20 hours per week for the past and the future at the rate of pay applicable to cleaners or shop assistants. This amounted to a past claim of some $52,000, including superannuation, and a future loss claim for the balance of her working life of some $241,000 including superannuation.

31. It was put to the plaintiff in cross examination that this type of claim was similar in structure to the claim particularised in the motor vehicle claim, where the wage loss was put at 15 to 20 hours per week as a cleaner for the balance of her working life. The plaintiff responded by saying that she did not think that she had made a wage loss claim for this fall.

32. A plaintiff is not to be penalised for showing a less than perfect knowledge of the state of the pleadings, as even the plain English form of pleading a case used in this Territory can often have language that is hard for persons other than a lawyer to follow. But in this matter the defendant points out, correctly, that the same economic loss claim has been put, in respect of back pain which is at least partly due to degenerative conditions, for both the motor vehicle accident and the fall. The plaintiff's evidence that she did not know that there was a wage loss claim does go, it seems to me , to the real nature of the claim here.

33. I am not satisfied that the plaintiff has sustained significant economic loss as a result of this injury. She had not engaged in any form of paid employment since 1983, and had in fact only worked for a relatively short period of about one year after completing her education. I would not be satisfied that, but for the accident, she would be working for the type of hours set out in the statement of particulars.

34. I am also not satisfied that it was the fall which has prevented her from taking up any form of paid employment. There is evidence of prior complaints of back pain, and I have assessed this injury on the basis of an aggravation of a previously symptomatic degenerative condition. It does not seem to me on the evidence that 20 hours a week as a cleaner is realistic. I accept her evidence that she did do some cleaning work in order to discharge a debt, but this is the only evidence her engagement in this type of activity.

35. A buffer type of claim has been recognised as being appropriate in this jurisdiction (Fry v McGufficke [1998] FCA 1499). It seems to me on all of the evidence that this injury generates, at most, a modest buffer. I have accepted that the plaintiff did sustain an aggravation of a back injury. I find also however that she sustained a further aggravation of that injury in the motor vehicle accident. I take into account that that injury was the subject of a claim in this court that has settled on the basis of a global sum of $50,000 plus agreed costs. I would award the sum of $15,000 as a global sum, inclusive of interest, for the loss of earning capacity caused by this accident for the past and the future.

36. Out of pocket expenses were particularised for the past in the sum of $1865.85 being $1751.85 by way of expenses paid by the Health Insurance Commission and $114 to Ms Kellett, a physiotherapist. This latter sum was also claimed in respect of the motor vehicle accident, and I consider this to have been dealt with, and indeed Mr Sainty conceded that this should not be claimed. An updated HIC liability certificate was tendered showing the total repayment to be $2033.45, but it was conceded that this would also include payments in respect of the motor claim. There is insufficient evidence to allow me to fully attribute these claims between the two accidents, but it seems to me that I would not err if I award the sum of $1000, being slightly less than one half of this amount, in respect of this accident. I award $1000 by way of past out of pocket expenses.

37. I am not satisfied that there is any ongoing liability in respect of medical expenses from this fall.

38. This amounts to a total award of $48,543, which I must however allocate as between the defendant's negligence and the plaintiff's contributory negligence. Counsel for the defendant conceded that any attribution would properly consider the defendants negligence to have been the greater cause of the plaintiff's loss, and suggested a figure for contributory negligence in the range of 20%-25%. Mr Sainty submitted that contributory negligence in the range of 10% to 20%. It seems to me taking all of the evidence into account that an appropriate apportionment is to consider the plaintiff's negligence, being well aware of this fault in the carpet, to be 20%. This amounts to an award of damages of $38,834.40 which I award.

39. I will hear the parties as to costs.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly

Associate:

Date: 1 March 2002

Counsel for the Plaintiff: Mr J R Sainty

Solicitor for the Plaintiff: Scott Sheils and Glover

Counsel for the Defendant: Mr S Pilkinton

Solicitor for the Defendant: ACT Government Solicitor

Date of hearing: 3 & 4 December 2001

Date of judgment: 1 March 2002