Kim Glover v Rathwet Pty Limited t/as Liquid Lounge [2006] ACTSC 40 (11 April 2006)

Last Updated: 22 May 2006

KIM GLOVER v RATHWET PTY LIMITED t/as LIQUID LOUNGE [2006]

ACTSC 40 (11 April 2006)

EX TEMPORE JUDGMENT

No SC 11 of 2005

Judge: Crispin J

Supreme Court of the ACT

Date: 11 April 2006

IN THE SUPREME COURT OF THE )

) No SC 11 of 2005

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KIM GLOVER

Plaintiff

AND: RATHWET PTY LIMITED t/as LIQUID LOUNGE

Defendant

REASONS FOR JUDGMENT

Judge: Crispin J

Date: 11 April 2006

Place: Canberra

1. This is a claim for damages for personal injuries sustained on 4 December 1998 when the plaintiff had an accident at the Liquid Lounge nightclub in Canberra.

2. The plaintiff attended at the nightclub that evening in company with three friends, Mr Dean Heycox, Ms Lori Rayner and Ms Sonia Butler. There is some discrepancy in the evidence as to the time that they arrived and also as to the time that they eventually left after the accident, but it seems to me that nothing turns on that and the discrepancies are entirely understandable, having regard to the events that occurred during the evening and to the time that has passed since. The plaintiff gave evidence that they had taken her car and that she had not intended to drink any alcohol during the course of the evening, because she had been the designated driver for that night and had intended to get up and drive to Narooma on the next day, which she said involved some 3½ hours driving. Her recollection was that they got there at about 11.30 pm.

3. They sat near a table, and whilst the others apparently had an alcohol drink, the plaintiff had a bottle of water. At some stage after they arrived, the plaintiff and Ms Rayner got up to dance. The Liquid Lounge at that stage had a sunken dance floor that one descended into from one end by going down steps which ran across the breadth of the dance floor. At the other end was a raised podium or stage. The podium was 4,940 millimetres wide and 720 millimetres high. In front of the podium was a step which was semi-circular in shape and about 1,020 millimetres across at the widest part. Where it abutted the front of the podium, it was about 360 millimetres high. Mr Allan Lenon who had apparently constructed it, gave evidence that it had carpet on the bottom. It apparently sat on a vinyl-tiled floor.

4. When she finished dancing, the plaintiff attempted to descend from the podium. In her evidence-in-chief she explained what happened in these terms:

When I went to step down I put my left foot down and I felt - like, I felt the step there. It was very dark and smoky and I looked down to see if I could see it, and I - and I felt the step there, because I seen it. And then when I went to step it just - I don't know, like it just wasn't there, it - like, I felt - I felt something there, and then when I went to step it was like I was on the corner of the step and my foot - like, because I - I was such a large person back then my whole body weight just went with - and I fell on the ground.

5. The precise mechanism which caused the plaintiff to fall was further explored during the course of her evidence and, in cross-examination, she explained that she had not been able to see the step but had stepped from the podium to the step in the same way that she had gone up onto the podium. When asked whether she had seen the step before she stepped down, she said, "I seen - no, not really". In answer to further questions, she said she knew where the step was because she got up "there". Later, when the cross-examiner returned to this theme, she said she had known the step was there and that is why she had gone to step down. She also explained that she had felt the step with her left foot. She added:

Well, if the step had have been there, then I would have stepped down with my left foot, which I did, and then my right foot would have come next to it, and then I would have taken another step down, but it never did.

6. She later explained that, if the step had been where it had been earlier, then her left foot would have been in the middle of the step and her right foot would have made it onto the dance floor.

7. There was some cross-examination about this version of the events. The statement of claim had alleged that the accident had occurred when the step located in front of the podium had slipped out from beneath her as she was dismounting the podium and caused her to fall. As Mr Stewart, who appeared for the defendant, pointed out, the case had also been opened on that basis and that version appeared to have been given to at least one of the medical practitioners who had assessed her injuries.

8. Mr Stewart was also very critical of the complainant's credibility. He submitted that she was an unimpressive witness who had exaggerated the symptoms allegedly sustained as a consequence of injuries received in this accident and who had sought to avoid responsive answers to difficult questions. He pointed out that in a letter she had written to the hospital to which she had been taken in 2002, she had given a version of the events that was somewhat unclear and that did not precisely reflect what she had said in her evidence. That is true, though it seems clear that that letter was written to correct an impression apparently left with some hospital employee that she had been drinking on the night in question.

9. He also submitted that her evidence had not been entirely consistent with the account she had given to some medical practitioners during the early years after the accident and suggested that it was striking to note that she had sought little, if any, medical treatment, between about March 1999, which was only three or four months after the accident, and April 2002. He pointed out that she had been able to pursue, substantially successfully, a career as a chef that had required her to work some 70 hours or more per week during peak periods and to stand up for almost all of that time. Whilst the hours had not been so extensive at other times of the year, she had nonetheless been able to maintain full time employment in that capacity for an extended period. This, he submitted, was inconsistent with the level of disability and the painful symptoms from which she now claimed to suffer. He pointed out, for example, that she claimed to be unable to walk for more than 20 minutes without suffering pain in the knee, and suggested that this was entirely incongruous with her evidence that she was able to stand for as long as ten hours a day. She had also claimed to be unable to ride in a car for long periods of time and to vacuum the house. Mr Stewart submitted that it was simply incredible that she would be able to sustain such onerous duties at work and yet be unable to carry out such simple activities.

10. I have carefully considered Mr Stewart's submissions but, as Mr Pilkinton who appears for the plaintiff points out, there are countervailing considerations. My own impression of her was that she was an honest witness, though one who, as her initial explanation of the accident demonstrated, was not always able to explain things with complete precision on the first attempt. I did not draw adverse inferences as to her credibility from the inconsistencies identified in the evidence she gave as to the explanation for the precise mechanism of the fall.

11. I note that the medical practitioners who assessed her universally accept that her complaints are genuine. This is not a case in which there has been any film or other evidence of her acting in a manner inconsistent with her complaints. Nor has there been any other evidence to suggest deliberate exaggeration. That is not to say that that her history of the development and progress of her symptoms since this accident should be accepted without reservation. There are some contemporaneous statements to medical practitioners and other therapists which suggest that from time to time the plaintiff may have been doing better than she now recalls.

12. To take but one example, the notes of the physiotherapy which she had during April 2003 include the statement:

Leg improving able to stand at work for longer before pain?. Worked long hours & days over holidays w/o too much problem. Unable to squat for more than 30 seconds due to . . . (the rest is illegible)

13. The physiotherapist's notes also include the following statement made in May 2003:

Knee aching after sitting x-legged for long periods of time. Symptoms: Able to stand for full shift at work without leg pain. Only sore with prolonged squat & palpation.

14. These discrepancies, however, must be seen in the context of the overall medical evidence and her presentation to the medical practitioners in question as well as the impression that I have formed of her credibility and proclivity to provide imprecise answers.

15. The medical evidence is quite voluminous and I do not propose to refer to it all, if only because there appears to be no substantial disagreement amongst the medical opinions expressed.

16. Dr Speldewinde in a report of 13 June 2004, expressed the opinion that the plaintiff presented with chronic deteriorating right antero-medial knee and upper tibial pain for which there was no sign of fracture, inflammation, tumour or infection. The doctor said that the complaint had arisen directly as a result of a fall onto her right knee in December 1998, and noted that no other mechanism for the injuries had been made known to him and that there had been no pre-existing history of knee complaint. Accordingly, there appeared to have been a direct relationship between the plaintiff's knee complaint and the accident.

17. Dr Weaver, who saw her apparently at the request of the defendant, said in a report of 7 June 2004 that although her problem would not have been made "any better" by the level of obesity that she had apparently exhibited at the time of the injury, it was the fall itself that was almost certainly responsible for initiating the problem which she had described during her meeting with the doctor. In a subsequent report dated 30 June 2005, Dr Weaver said:

My attitude towards Mrs Glover's situation remains unchanged. I continue to regard this woman as being a genuine individual, although the actual diagnosis of her problem remains somewhat obscure. I can only raise once again the question as to whether or not an element of mild chondromalacia is present involving in the anterior compartment of the knee . . .

Under the circumstances, I can only suggest that the case might be made for Mrs Glover to undergo a diagnostic arthroscopy of the right knee . . .

18. Dr Weaver also said that the plaintiff had demonstrated a capacity to remain in active employment, but that the type of work she performed was almost certainly responsible for aggravating her problem:

She can thus argue that the effects of the original injury to her knee, as sustained back in December 1998, have continued to contribute to her ongoing knee problem.

19. He observed, in passing, that Dr Griffith, a consultant orthopaedic surgeon, had expressed the opinion that the plaintiff had suffered from a complex regional pain syndrome and that, whilst that diagnosis was "by no means absolute", he had suggested a 10% impairment, which Dr Weaver understood to refer to the right lower limb overall. Dr Weaver said, "In other words he seems to have provided an impairment figure which is identical to the one which I have already used".

20. In addition to her physical problems, there is evidence from Mr John Redman, a clinical psychologist, to the effect that the plaintiff has suffered from an adjustment disorder. He explained that:

She had a psychological response to an identifiable stressor, which was the likelihood of her leg not sustaining her ability to stand. She had become depressed by the limitations on her and had become anxious about the possibility of her leg giving way, which led to her stressful reactions. Thus she had an adjustment problem adjusting to the constant presence of her leg injury.

She did not appear to have clinically significant Posttraumatic Stress Disorder (PTSD) in that she was not exposed to a life threatening traumatic event. It was a traumatic incident, but not disturbing to the extent of causing extreme distress.

21. It is clear from the plaintiff's evidence that she feels that she has now come to a point where she is unable to continue with her current career. She embarked upon an apprenticeship as a chef sometime after the injury in March 1999 and completed it in November 2002. During the early part of the following year she became head chef at the Old Pub in Paynesville, Victoria, which is operated by a family company and the duties mentioned earlier were carried out in that capacity. She described being a chef as a "passion in life" but seems to have come to accept that, given her level of pain, she will be unable to sustain it in the future. No doubt, the comments Dr Weaver made as to the work-related aggravation of her symptoms relate to the duties carried out whilst she has held that position.

22. It is, I think, understandable that a person who has come to the point where they feel unable to sustain a career about which they had been very enthusiastic and who suffers from continuing pain and the psychological problems described by Mr Redman may, in retrospect, have come to see the earlier symptoms as part of an unending saga and, perhaps, failed to appreciate the extent to which her symptoms may have been alleviated from time to time. I formed the impression that some of the apparent incongruities in the plaintiff's evidence as to the course of her disabilities may have been explicable on this basis.

23. In any event, I accept her evidence as to the mechanism of the fall. I also accept Mr Pilkinton's submission that it was clearly negligent to allow patrons to use this semicircular step to gain access to the podium for dancing when the step, at its widest point, was only about 20% of the width of the podium that it abutted and when it was difficult to see due to subdued lighting and smoke emanating from a smoke machine that the defendants had chosen to use.

24. In my opinion it does not really matter whether the step was moved from its position whilst the plaintiff was still dancing on the podium. In fact, I am satisfied on the balance of probabilities that it was not in the same position when she attempted to descend from the podium. I found her evidence to that effect entirely plausible, having regard to the fact that the step had carpet underneath it and that it rested on vinyl tiles over a concrete dance floor which was quite crowded. However, as I have indicated, I do not think that this is a crucial finding. I would have made the same finding of negligence even if the steps had been nailed to the floor. In all the circumstances, the step was a wholly inadequate means of providing a passage to and from the podium for patrons intent on dancing on it in the subdued lighting to which I have referred. It may have been different had the stage only been used for musicians and had the lights been turned on at the end of their performance when they had to descend from the stage, but that is not a scenario with which I am concerned.

25. I also accept her evidence as to the manner in which the fall occurred. I accept that she was simply unable to see, or to clearly see, the step due to the dimmed lights and the smoke. Accordingly, I find that the accident was causally related to the breach of duty which the defendant owed to her as an occupier of the premises.

26. Mr Stewart submitted that she was guilty of contributory negligence. There is, however, no credible evidence that she had been drinking on the night in question and I accept her evidence that she had not done so. Nor, in my opinion, is there any creditable evidence that she failed to exercise due care. On the contrary, she said in her evidence that she looked down to see if she could see the step and then felt it with her left foot. It was only then that she proceeded to put her weight onto that foot and fell. It is theoretically possible to imagine that someone in that situation could have stood there with one foot hanging over the edge of the podium, feeling around and tapping different parts of the step to make absolutely sure it was beneath her, but it has to be remembered that this was a young woman who was not particularly tall and who apparently weighed about 110 kilograms at the time. She may well have lacked the physical dexterity of other dancers and been less able to sustain her weight on one leg in order to engage in exercises of that kind. Her weight may also have made it more easy for her to lose her balance and perhaps more difficult for her to recover. In any event, the onus of proof in relation to this issue rests upon the defendant and having considered the various passages of evidence carefully, I am not satisfied that contributory negligence has been established.

27. As previously mentioned, I do have some concern about the objective accuracy of her description of the symptoms which she claimed to have experienced in earlier years and, as I have mentioned, I think it is easy for someone who has come to a point where they feel frustrated in their life by their present level of pain and disability to look back to earlier years with a somewhat jaundiced view and subconsciously minimise their recollection of past periods of alleviation, especially if those periods had not been sustained. Viewed overall, the impact of the accident appears to have been substantial.

28. Now, some seven years after the accident, she experiences chronic pain at various times during the day and has to have massages to alleviate it. It limits her ability to walk long distances and has required her to forsake the sporting activities in which she had previously engaged. She now faces the abandonment of her chosen career and perhaps some further retraining, though she has already completed some courses with a view to forging a new career. On the one hand, this may tend to alleviate future symptoms. Socially, the future may not be as bleak as her present symptoms would otherwise suggest though, regrettably, the medical evidence as to the likely extent of any alleviation when she ceases to perform such onerous duties is less than enlightening. On the other hand, as Mr Pilkinton has pointed out, any alleviation of her symptoms will come at the cost of a career that has been her passion and the need to start a new career, perhaps after further training.

29. Mr Pilkinton has stressed the fact that she is still a young person. She was born on 12 June 1978 and hence was only 20 years old at the date of the accident. She is still only 27 years old. He submits that she is entitled to substantial general damages not only by reason of what she has suffered in the past, but by reason of the likelihood that the symptoms will continue, albeit perhaps with some abatement, for many years into the future and, according to at least some of the medical practitioners, permanently.

30. In all the circumstances I think it is appropriate to award the sum of $50,000 for general damages. In addition to that sum I allow interest at 2% per annum on the 7.4 years that have elapsed since the accident on the sum of $30,000, which is the component of general damages that I allocate to the period from the date of the accident to date. That comes to a figure of $4,400. I allow the sum of $3,045.10 for out-of-pocket expenses, including the cost of two courses at TAFE, apparently undertaken with a view to moving to a change of career in future.

31. It is also appropriate, I think, to make some small allowance for future medical expenses having regard to the medical evidence that she may require some massage and, perhaps physiotherapy in the future and that an arthroscopy has been suggested. It also seems to me likely that she may have to spend some money on analgesics. In the circumstances I allow the sum of $2,000.

32. No past wage loss has been claimed and hence there is no Fox v Wood component.

33. One further difficulty arises in relation to the assessment of an appropriate figure for future economic loss, Mr Pilkinton submits that the plaintiff is entitled to a buffer for future economic loss and that the buffer should be sufficient not only to compensate her for any loss during the period of retraining and any period in which she may be unemployed while seeking alternate employment in a different field, but also to compensate her for the loss of future prospects of advancement in her own field to the point where she may have been able to have her own restaurant. I accept that those are valid considerations. On the other hand, there may well be prospects of advancement in the career that she embarks upon in future and it seems to me to be impossible to compare these prospects, other than to observe that the relevant losses occurred in relation to an established career, and that whatever she may gain in substitution will arise in a career that she has not yet embarked upon. Doing the best I can in an area in which any precise calculation is plainly impossible, I allow the sum of $45,000.

34. There is a further claim under the principle in Griffiths v Kerkemeyer for assistance provided to her over the years since the accident and in the future. That assistance has consisted largely of work undertaken by her husband whom she married in 2002 and who has explained that he spends some 3 to 5 hours per week on housework. It seems to me that one would have to work on the assumption that they would have shared the housework equally in the ordinary course of events but that, having regard to the hours worked by the plaintiff, it might have expected that he would, in any event, have shouldered the lion's share of that work. It also seems to me that any allowance for other assistance, such as that provided by people in and around the kitchen carrying things, should be given minimal if any weight because those people were acting in the course of their employment. I am unable to be satisfied that she required extensive assistance in the years between the time of the accident, save perhaps for the first four weeks, and in 2002 when she began to return for further medical treatment. In the circumstances, I allow $4,000. The future remains uncertain and it is entirely unclear what her requirements may be for assistance in the future when she abandons the kind of work that she has been doing now. I allow a further sum of $2,000.

35. I think from the rough calculations I have been doing while speaking, that that comes to a total of $110,445.10 but I would be grateful if you would check my arithmetic.

MR STEWART: That accords with my calculations, your Honour.

MR PILKINTON: Yes. That is correct, your Honour.

HIS HONOUR: I order that there be judgment for the plaintiff in the sum of $110,445.10.

MR STEWART: May it please the court.

MR PILKINTON: I seek the usual order as to costs, if it please your Honour?

HIS HONOUR: No problem with that, Mr Stewart?

MR STEWART: No, your Honour.

HIS HONOUR: I order the defendant to pay the plaintiff's costs.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 4 May 2006

Counsel for the plaintiff: Mr S Pilkinton

Solicitor for the plaintiff: Slater & Gordon Lawyers

Counsel for the defendant: Mr J Stewart

Solicitor for the defendant: Sparke Helmore Solicitors

Date of hearing 27 October 2005, 10, 11 April 2006

Date of judgment 11 April 2006