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Supreme Court of the ACT |
Last Updated: 24 October 2008
REBECCA MARGARITA SKERBIC v PATRICK McCORMACK & ORS
[2007] ACTSC 93 (23 November 2007)
NEGLIGENCE – product liability – garage roller door
– adequacy of installation instructions
TRADE PRACTICES –
consumer protection – supply of goods – defect – garage roller
door – collapse of door causing personal
injury – whether inadequacy
of installation instructions capable of constituting defect
DAMAGES
– personal injury – head and neck injury – myofascial pain
dysfunction syndrome – no issue of principle
Trade Practices Act 1974 (Cth), ss 75AC, 75AD
No. SC 120 of 2001
Judge: Master Harper
Supreme Court of the ACT
Date: 23 November 2007
IN THE SUPREME COURT OF THE )
) No. SC 120 of
2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: REBECCA MARGARITA SKERBIC
Plaintiff
AND: PATRICK McCORMACK
First Defendant
AND: GLIDEROL INTERNATIONAL P/L formerly GLIDEROL GARAGE DOORS
Second Defendant
AND: BRYAN JOHN SHERIDAN t/as SHERIDAN GARAGE DOORS
Third Defendant
ORDER
Judge: Master Harper
Date: 23 November 2007
Place: Canberra
THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff against the second defendant in the sum
of $84,000.
2. Judgment be entered for the first and third defendants in the
action.
3. Judgment be entered for the third defendant in the second
defendant’s claim for contribution.
4. The action be stood over to a
date to be fixed for submissions as to costs.
1. This is an action for damages for personal injury. At about 8.15 am on
Wednesday 8 December 1999, the plaintiff and her
then husband were getting
ready to go to work. They were living at unit 57, Belmont Apartments, located
on the corner of Heard Street
and Wilkins Street, Mawson. The plaintiff and her
husband had been living there as tenants of the first defendant for about a
year.
The tenancy area included a double garage. The garage was one of a row
of garages with roller doors opening onto a driveway. They
went into the garage
and the plaintiff’s husband unlocked the roller door and raised it. The
plaintiff was standing in the
open doorway under the roller door, waiting for
her husband to drive the car out of the garage, after which, in accordance with
their
usual practice, she intended to lower and lock the roller door. While she
was standing under it, one of the brackets supporting it
came away from the
surrounding brick wall. The roller door fell and struck her on the
head.
2. The plaintiff commenced these proceedings against the first
defendant as her landlord. A year later, after changing solicitors,
she joined
the second defendant, Gliderol International Pty Ltd, the manufacturer and
supplier of the roller door. The second defendant
subsequently joined the
installer, Sheridan Garage Doors (the present third defendant) as a third party,
claiming contribution or
indemnity. Still later, the plaintiff joined Sheridan
Garage Doors as a defendant. By the time the action came to trial the claim
against the first defendant had been withdrawn, although he remains a party. The
action was heard as a claim in negligence and also
a product liability claim
under the Trade Practices Act 1974 (Cth) against the manufacturer, and as a
claim in negligence against the installer. The manufacturer, if found liable,
seeks contribution
or indemnity from the installer.
3. Although initially
pleaded more widely, the case against the manufacturer as presented at trial was
based not on any fault in the
design or manufacture of the garage door, but on
the adequacy of the instructions provided with the door to distributors and
installers,
and specifically to the third defendant.
4. Both the
plaintiff’s and the manufacturer’s case against the installer is
that it held itself out as having experience
and expertise in the installation
of roller doors for garages, and should have known that the system it adopted
for fixing to the
brickwork the brackets which held the door up was inadequate
and unsafe.
5. The manufacturer, Gliderol International Pty Ltd, is based in
Adelaide, with branch offices around Australia though not in Canberra.
The third
defendant, Sheridan Garage Doors, is, and was at the time of installation, the
sole distributor in the Canberra region
for Gliderol.
6. Mr Sheridan,
although he has no formal qualifications, has had experience in the installation
of garage roller doors since 1979.
By 1992 he had brought his sons into the
business and was no longer personally engaged in the physical work of
installation, but
remained the principal of the business. He trained his sons
and passed on his skills to them.
7. The Belmont Apartments at Mawson
constitute a large medium-density development of 104 units. I assume, in the
absence of any specific
evidence about it, that each of the units had an
allocated garage with its own roller door. The apartments were built during
1997.
Mr Sheridan was the successful tenderer for installation of the garage
doors. Having won the tender, he arranged for the purchase
and site delivery of
the doors from Gliderol.
The installation instructions
8. Each garage door
was delivered with two steel brackets; a small bag of hardware including coach
screws, nuts, U-bolts and washers;
and a four-page printed set of installation
instructions. In the years since the installation of the garage doors at the
Belmont
Apartments, Gliderol has made some major changes to the installation
instructions, but the instructions which accompanied roller
doors on delivery in
1997 had been in substantially the same form for many years. This is confirmed
by two documents in evidence:
a copy of a document headed “Specification
and Installation Instructions” provided by Gliderol in May 2001 to Mr
Andrew
Montgomery, an engineer qualified as an expert witness on behalf of the
first defendant; and a document headed “Step-by-Step
Installation
Instructions” tendered by counsel for Gliderol which is undated but is
clearly much older: the contact details
for Gliderol include a telex address and
a seven-digit telephone number, suggesting that it dates from the 1980s. Apart
from the
title of the document and the Gliderol contact details, the content and
layout of the two documents appear identical. Much of the
case of the plaintiff
against Gliderol, and of the defence of the third defendant Sheridan Garage
Doors, turns on the wording and,
to a lesser extent, the layout of the
document.
9. The first page of the instructions includes the following
wording:
Your Gliderol roller door is designed to highest engineering
standards and manufactured from high quality materials. If it is installed
in
accordance with the instructions given in this folder it will give many years of
service with a minimum of maintenance.
This wording reads as thought it is
addressed to the consumer or individual end-purchaser, rather than to a
retailer, distributor
or installer.
10. The folder then opens out to
approximately A3 size. The centre pages set out six steps (headed ‘step
1, step 2’ etc).
Each step is set out in a box with a diagram or
illustration, and verbal instructions.
11. Step 1 gave directions about
measuring the overlap of the door on each side of the opening, and marking the
overlap on the wall
to facilitate the fixing of brackets and guides. Step 2
commenced:
12. The directions went on to deal with the positioning of the second bracket
and, in step 3, the placing of the rolled-up door
on the brackets, and the
manner of securing the axle running through the middle of the door to the
brackets with U-bolts. Steps
4, 5 and 6 dealt in detail with other aspects of
the installation. At the foot of the right-hand page of the step-by-step
instructions,
in a separate box, there appeared the following wording:
Coach
screws are the standard fitting supplied with the Gliderol roller door. If
masonry fitting is required the use of 10 mm Loxins
(or similar): Use 16 mm
masonry drill and 60 mm x 10 mm Hexagon Head Bolts are recommended for the
brackets. For the guides use
No 20 Fibre Rawl Plugs (10 mm masonry drill) with
8 mm coach screws supplied.
13. The brackets for the door in question, and
indeed the brackets for all of the garage doors in the Belmont complex, were
affixed
by the third defendant using 10 mm diameter bolts screwed into
plastic plugs inserted into 12 mm diameter holes drilled
into the
brickwork. Mr Sheridan’s evidence was that this was the method he
had always used to fix brackets to brickwork
when installing roller doors over
many years, indeed ever since 1979. Until the present case, he had never had a
complaint, nor
had he ever been made aware of any problem with a garage door
installed in that manner. He estimated that by 1997 his business was
installing
about 1,000 garage doors a year, and that over prior years he had been
responsible for the installation of many thousands
of Gliderol doors.
14. Mr
Richard Mons, employed by Gliderol for more than twenty-five years in a number
of technical roles including national technical
manager, gave evidence that
plastic plugs as an anchor for a bracket bearing the weight of a roller door
would be quite inadequate,
and that he would never have suggested or recommended
the use of plastic plugs. Plastic plugs in his view were adequate to secure
the
vertical guide rails which held each side of the door in place in the closed
position, which were not load-bearing. His evidence
was that the correct fixing
device for the brackets, which were load-bearing and indeed bore the entire
weight of the roller door
when in the open position, was a steel mechanical
anchor such as a Loxin or Dynabolt, proprietary names for similar devices. Such
a metal anchor would be vastly stronger than a plastic plug.
15. Mr Mons
said that Gliderol had more than 400 distributors around Australia. He was
familiar with Mr Sheridan, and recalled that
Gliderol had a distribution
relationship with Mr Sheridan when he commenced his employment there in 1981.
Mr Mons explained that
in South Australia, Gliderol dealt direct with members of
the public on a retail basis, but that in other parts of Australia, including
Canberra, sales were generally through distributors such as Mr
Sheridan.
16. Mr Mons confirmed that the earlier version of the installation
instructions had been in the same form for the whole of his time
with the
company. In about 2000 the format was revised to change the company logo and
addresses. He said that Gliderol had probably
supplied about half a million
roller doors around Australia, and that he was unaware that there had ever been,
prior to the present
case, a complaint or report of an incident or accident
arising from the way in which brackets had been fixed.
17. Mr Mons was
asked whether Gliderol had ever conducted any checks to ensure that its
distributors were installing doors correctly.
His answer was that Gliderol had
conducted training but did not have any facilities for on-site inspection. He
had spent five years
as an installer earlier in his career, and thought that he
had probably installed about 6,000 doors. He had become aware only a
few days
before giving evidence of the fact that Mr Sheridan had for many years been
using plastic plugs in brickwork rather than
metal anchors. Until then he had
assumed that all of Gliderol’s distributors had followed what he regarded
as the correct
method of installation. He said that since he had become aware
of Mr Sheridan’s practice, alarm bells had been raised within
Gliderol.
The expert engineering evidence
18. Independent expert evidence
was given by Mr Andrew Montgomery and Dr Kevan Heathcote. Both are professional
engineers. Mr Montgomery
was initially qualified on behalf of the first
defendant but was called on the plaintiff’s case. Dr Heathcote was called
on
behalf of the second defendant.
19. Mr Montgomery attended the scene of
the accident on 18 May 2001 in the presence of the plaintiff and her then
husband. He had
the opportunity to look at three garage roller doors (out of a
total of 103 at the Belmont apartments). He inspected the doors for
the garages
of units 52, 55 and 57, unit 57 being the plaintiff’s unit.
20. He
observed that the top bolt of one of the brackets supporting the double roller
door for unit 52 had pulled out about 20 mm
from the wall. Part of the plastic
plug can be seen in a photograph which he took at the time. Mr Montgomery
thought that this
bolt was in imminent danger of failure.
21. One of the
brackets supporting the single roller door of unit 55 was loose but the bolt had
not pulled out from the wall.
22. It was apparent that both brackets for
the door for unit 57 had been removed and replaced a few millimetres further out
from the
door on both sides, using three rather than two screws or bolts, though
again using plastic plugs.
23. Mr Montgomery obtained some information by
telephone from Gliderol, and looked at a number of industry publications by
manufacturers
of masonry anchor systems, including plastic and metal anchors.
He carried out some calculations of pull-out forces for brackets,
using two-bolt
and three-bolt configurations. He concluded that none of the plastic anchors
available had the capacity to cope with
the pull-out forces on the upper bolt or
screw of a bracket bearing the weight of a garage roller door, and that only
metal anchors
such as Loxins had the necessary capacity.
24. Mr Montgomery
expressed the opinion that the installer appeared to have followed the
manufacturer’s instructions, but it
does not seem to me that this is an
opinion within his expertise as an engineer. The interpretation of the
instructions is a matter
for the court.
25. Mr Montgomery made the point,
which I do accept, that the rectification work carried out on the brackets for
the garage of unit
57 demonstrated that the person who did the work did not
understand which bolts were in tension (being pulled out of the wall) and
which
were in compression (being pushed into the wall). He explained that the effect
of the weight of the door on top of the bracket
is to pull the upper bolt out of
the wall but to push the lower bolt or bolts into the wall. The third bolt used
in the rectification
work on each bracket was in compression and its addition
would do nothing to reduce the tendency of the upper bolt to pull out over
time.
26. Dr Kevan Heathcote is an expert engineering witness associated with
Expert Link, a group provider of expert witnesses in a number
of fields. He was
engaged by the solicitors for Gliderol, and attended the premises in June 2003.
He agreed with Mr Montgomery’s
conclusion that the plastic plugs used
to fix the brackets to the brick wall were inadequate, although he took issue to
a minor degree
with some of Mr Montgomery’s force calculations. For
what it is worth, he disagreed with Mr Montgomery’s interpretation
of
the instruction leaflet. He noted that there had been no specific Australian
standard relating to garage doors at the time of
the construction in 1997. A
standard (AS/NZS 4505:1998) had been issued in relation to domestic garage doors
in 1998, which included
the following statement:
Installation instructions shall be provided, including a table of recommended fasteners for common building materials and a table of imposed loads on the building with force diagrams.
This had, however, not been in force at the time of the original installation.
27. Dr Heathcote also made the point that it would be difficult to comply with
that portion of the standard in any event when fastening
to brickwork because of
additional factors such as whether the bricks were solid or hollow, and the
proximity of the bolt to the
edge of the brick. For this reason, he said,
manufacturers of anchoring devices were reluctant to publish anchor capacities
in brickwork.
28. Dr Heathcote thought that the fact that the top bolt of the
bracket which fell had been placed close to the edge of a brick might
have been
a critical factor. The process of screwing in the bolt or screw would have
created expansive forces which could have cracked
the brick, leading to loss of
tensile capacity of the fastener. He strongly recommended that the fixing of
all double doors in the
development be reviewed by an engineer. He was less
concerned about the single doors. He also expressed the opinion that the
installer
should have engaged his own engineer or requested assistance from
Gliderol, in the absence of detailed information relating to fastening
of
brackets to various materials. My feeling about this is that whilst it is
something which might reasonably occur to a professional
engineer, it is a
counsel of perfection with the benefit of hindsight, and not something to be
expected of a skilled tradesman such
as a subcontract installer of garage doors.
29. Dr Heathcote concluded that the accident had been caused by inadequate
fixing of the roller door brackets to the brick wall.
If steel Loxins had been
selected and correctly installed, it was unlikely that the accident would have
happened.
Were the instructions adequate?
30. It is apparent from the evidence of Mr Mons that Gliderol supplied the
instructions with garage doors to purchasers. In some
cases the purchasers were
consumers, who may have been buying the doors with the intention of installing
them without expert assistance.
The instructions should have been clear and
intelligible to persons without any relevant trade qualifications or experience.
In
fact, the door which collapsed was one of about a hundred supplied by
Gliderol to Mr Sheridan’s firm for installation in a
large medium-density
residential development, in the knowledge that Mr Sheridan had installed
thousands of Gliderol doors in
the past. Despite this, there is no suggestion
that anyone from Gliderol had ever told Mr Sheridan that he should use steel
anchor
plugs in brickwork rather than plastic ones. To the extent that anyone
on either side thought about it, it seems that the technical
people at Gliderol
regarded it as common knowledge in the industry that metal anchors should be
used in brickwork: it never occurred
to anyone at Gliderol that Mr Sheridan
might use any other method. At the same time, Mr Sheridan had always used
plastic plugs in
brickwork, in the installation of thousands of doors over many
years. He had never been informed that the method had shortcomings,
and none of
his installations had ever failed or malfunctioned so as to put him on notice
that the system might be inadequate.
31. The instructions in step 2
stipulate the use of masonry anchor plugs in brick, without going into any more
detail about the kind
of anchor plug to be used. In another part of the
directions, not under step 2 where one might expect to find it but at the foot
of the next page, after the final step, there appeared the wording “If
masonry fixing is required the use of 10 mm Loxins (or
similar): Use 16 mm
masonry drill and 60 mm x 10 mm Hexagon Head Bolts are recommended for the
brackets”. This portion of
the instructions is not in a place where one
would expect to find it and is poorly worded and a little difficult to follow.
It is
argued on behalf of Gliderol that an installer in the position of the
third defendant would have read it as requiring metal rather
than plastic plugs
in masonry.
32. Mr Montgomery obtained from Hilti Australia, a major
Australian manufacturer of building equipment and materials, a 2000-2001
catalogue. The catalogue runs to some 150 pages, and includes 30-page section
headed “Anchors”. The section has a contents
page with headings
being adhesive anchors, metal anchors, plastic anchors, insulation fasteners,
software and accessories. The plastic
plug which was used by Mr Sheridan in
installing the brackets for the doors at the Belmont Apartments was identified
in evidence
as being, or at least being very similar if not identical to, a
particular Hilti plug, described in the catalogue as the HUD-1 universal
anchor.
This is illustrated in the catalogue and described as a versatile high quality
plastic anchor for a wide range of fastenings
in various base materials.
Applications are listed as extending to a variety of base materials including
concrete, stone and brick.
The plug came in five sizes, the largest being
identified as the one used by Mr Sheridan. For each of the sizes the catalogue
gave
the dimensions of the plug, recommended screw gauge, and a table of
permissible loads in kilonewtons in both concrete and solid brick,
each with two
columns, one for “tension” and the other for “shear”.
These expressions were not explained
in the catalogue or in the
evidence.
33. The evidence of Mr Mons was that it was perfectly in order to
use plastic plugs in brickwork to secure the guides or railings
at each side of
the garage door. That is to say, it is not Gliderol’s case that plastic
plugs should not be used in brick
in any circumstances.
34. The permissible
load table is, I have no doubt, meaningful to Mr Montgomery and
Dr Heathcote; and perhaps also to Mr Mons.
It was not suggested to Mr
Sheridan that he should have been familiar with it, and it was clear from his
evidence that the technical
detail, including the concept of kilonewtons, is
entirely foreign to him.
35. No expert evidence was called as to the practice
of other installers of roller doors. This is not something which one would
expect
professional engineers like Mr Montgomery or Dr Heathcote to be in a
position to give expert evidence about. However, Gliderol
has some 400
distributors around Australia and one might have expected evidence from one or
more experienced distributors and installers
of roller doors if such evidence
was available and likely to assist Gliderol’s case. For example, one
might have expected
evidence that the method adopted by Mr Sheridan, of using
plastic plugs in brickwork for brackets, departs from general practice
in the
industry and is regarded by his peers as falling short of standards in the
industry generally. No such evidence was called.
Mr Mons made it clear that
Gliderol never undertook quality control on site to the extent of checking that
its contract installers
are using proper methods. For all I know, many other
accredited Gliderol installers may always have used the same method as Mr
Sheridan.
36. It seems to me that if Gliderol had intended to convey to
installers that metal anchor plugs rather than plastic anchor plugs
were to be
used in brickwork to secure the brackets, it would have been a very simple
matter to say so in the wording for step 2.
It would have been less effective,
but could have been argued to be adequate, if wording to the same effect had
been included in
the box I have quoted from the foot of the third page of the
instruction leaflet. It does not seem to me adequate to use the expression
“Loxins (or similar)” if one intends to convey that it is essential
that metal rather than plastic anchor plugs be used.
It follows that I am
satisfied that the instruction leaflet in use in 1997 was inadequate to the
extent that its wording did not
make clear that metal anchor plugs rather than
plastic anchor plugs were to be used in brickwork to secure the
brackets.
37. It does not seem to me to be any answer to the
plaintiff’s claim for Gliderol to submit, as it does, that Mr Sheridan and
his sons did not read the instruction leaflet each time they installed a door.
It is clear from Mr Sheridan’s evidence that
he had read the instruction
leaflet and was familiar with its contents, and that he was generally familiar
with changes in the leaflet
over the years. I am satisfied that if the leaflet
had contained adequate instructions, Mr Sheridan and his firm would have
followed
them.
38. I am satisfied that Gliderol, as a manufacturer and
supplier of garage roller doors, owed a duty of care to members of the public
such as the plaintiff to provide installation instructions with its product
which, if followed, would ensure safe operation. There
was a foreseeable risk
that the supply of inadequate instructions might result in garage doors being
installed in an unsafe manner,
and that this might lead to the collapse of a
door causing injury. The duty extended to any member of the public who might be
vulnerable
to injury upon the collapse of a door. It did not and does not depend
upon the injured person having any particular status such as
purchaser of the
door, tenant or resident. The inadequacy of the instructions amounted to a
breach of Gliderol’s duty of care
to the plaintiff.
39. The plaintiff
also relies upon a statutory cause of action under s 75AD of the Trade Practices
Act. Section 75AD is in the following terms:
75AD Liability for defective goods causing injuries – loss by injured individual
If: (a) a corporation, in trade or commerce, supplies goods manufactured by it; and
(b) they have a defect; and
(c) because of the defect, an individual suffers injury;
then:
(d) the corporation is liable to compensate the individual for the amount of the individual’s loss suffered as a result of the injuries; and
(e) the individual may recover that amount by action against the corporation; and
(f) [not relevant for present purposes]
40. There was no defect, as that word is generally understood, in the door as
supplied, but the concept of goods having a defect
is given a wider meaning
under the Act. Section 75AC provides that goods have a defect if their safety
is not such as persons generally are entitled to expect. In determining the
extent
of the safety of goods, regard is to be given to all relevant
circumstances, including the manner in which, and the purposes for
which, they
have been marketed; and any instructions for doing anything with or in relation
to them.
41. The present case might be seen as a little outside what the
legislature had in mind in its reference in s 75AC to instructions. One
suspects that the intended reference was to instructions to consumers as to how
the goods were to be used.
In the present case, there was no issue about the
manner in which the garage door was to be used. The problem was with the
instructions
as to how it was to be installed. Nevertheless, it seems to me
that the inadequacy of the instructions falls within the words of
s 75AC. The
safety of the garage door, in its everyday use, was compromised by the fact that
the manufacturer supplied it with inadequate
installation instructions. An
inadequately installed garage door represented a danger to the safety of persons
using it or standing
under it. It seems to me that the garage door must be
taken to have had a defect for the purposes of s 75AC and s 75AD of the Act. It
follows that the plaintiff is entitled to succeed against Gliderol on the
statutory count. In the absence of any
authority to the contrary, it seems to
me that the measure of damages will be no different to the damages recoverable
for negligence
under the general law.
Was the installer
negligent?
42. As to the third defendant, clearly Mr Sheridan’s firm
owed a duty of care to members of the public to install the door in
accordance
with the manufacturer’s instructions and with due care and attention.
Having regard about the findings about the
adequacy of the installation
instructions, I am not satisfied that the conduct of the third defendant fell
short of what was required
or expected of it. There is no suggestion of any
conduct on the part of the third defendant which was less than satisfactory,
other
than the use of plastic rather than metal anchor plugs for the
installation of the brackets. I accept the Hilti 2000-2001 catalogue
as
indicative of the information provided by the suppliers of anchor plugs to trade
purchasers in the late 1990s. There is nothing
I can see in the catalogue
capable of putting someone in the position of the third defendant on notice that
there was any risk arising
from the use of plastic anchor plugs in masonry to
secure garage roller door brackets. It may be that a person with greater
technical
background would glean this from the load tables, but Mr Sheridan and
his staff did not have that degree of technical knowledge and
nor would trade
purchasers of anchor plugs generally.
43. The plaintiff has not established
negligence on the part of the third defendant. For the same reasons, the claim
by the second
defendant against the third defendant for contribution
fails.
44. The blow to the plaintiff’s head was a moderately severe one. She was
off work from the day of the accident, 8 December
1999, until after Christmas
that year. She saw her then general practitioner, Dr Tanya Robertson at
Yarralumla, a couple of hours
after the injury. She had reduced range of
movement of her neck in all directions, tenderness at the C3-4 level and a
haematoma
on her skull at the site of the blow. Dr Robertson prescribed
physiotherapy, x-rays, medication and rest. Predictably, the
plaintiff
developed increasing immobility and pain in the neck region, with particular
limitation in flexion and rotation. Dr Robertson
saw her again in mid-January
2000 and certified her fit to work half a day five days a week. By February
2000 her symptoms and mobility
had improved, though she continued to have muscle
spasm in the neck.
45. In March 2000 the plaintiff commenced to see Dr Ian
Brown at Mawson, closer to where she lived. He diagnosed her as suffering
from
post-concussion headaches, both migraine and tension headaches at different
times. By July 2000 he reported that her pain seemed
focused at about the left
C 5-6 facet joint, and the muscles on both sides of the spine from C2 to C4.
Throughout 2000 she continued
with physiotherapy. Dr Brown said in
February 2001 that it was not clear to him whether the garage accident had
simply unmasked
an underlying tendency to migraines and tension headaches or
whether the soft tissue effects of the accident were the primary cause.
In
either situation, there was no evidence that the plaintiff had suffered from
such headaches before the accident and he accordingly
attributed the headaches
to the head injury.
46. In March 2001 the plaintiff’s solicitors
referred her to Professor John Norman, a surgeon with expertise in jaw
dysfunction
and its treatment. Professor Norman diagnosed myofascial pain
dysfunction syndrome. He was unable to be sure whether there had
been any signs
of this condition prior to the accident, but said that at the very least the
accident would have aggravated the condition.
(The plaintiff’s own
evidence is that she had no signs or symptoms of the condition prior to the
accident, and she was not
challenged about this). Physically the range of
movement of her jaw was significantly reduced, to a level which Professor Norman
described as unsatisfactory. He recommended that she consult Dr Michael Cooper,
oral and maxillofacial surgeon in Canberra, to consider
getting her a maxillary
splint to be worn every night for twelve weeks. Further investigations should
include MRI studies of the
cervical spine and the temporomandibular joints,
nerve conduction studies of both arms and an examination by an orthopaedic
surgeon.
47. The plaintiff duly saw Dr Cooper who confirmed Professor
Norman’s recommendation and referred her to her dentist to arrange
manufacture of a splint. The plaintiff did not go ahead with this because she
said she could not afford it at the time, although
her evidence was that she did
intend to proceed with the recommendation in the future, after her case was
over. Those recommendations
were made more than six years ago, and the
plaintiff, it seems to me, could have afforded to proceed with the treatment
during that
time, even if some short-term financial help from her parents had
been necessary. The fact that she has not done so causes me to
doubt whether
her temporomandibular symptoms have remained of great significance to her over
the years and whether she is now likely
to go to the expense and trouble of
having the splint made and wearing it for three months.
48. Dr Brown also
sent the plaintiff to see Dr Gytis Danta, neurologist, in August 2001, to
investigate her headaches and spinal pain.
Dr Danta saw her once in that year,
and again in 2003 on referral from her solicitors. He accepted that her
headaches were a complication
of her head injury. He saw her as suffering from
a soft tissue injury of the cervical spine accompanied by post-traumatic
headaches
which seemed to be adequately controlled by Neurofen and Panadeine
Forte.
49. The solicitors for the defendants had the plaintiff seen by Dr A
Bhattacharyya, orthopaedic surgeon; Dr R A Smith, oral and maxillofacial
surgeon; and Dr G Stuart, neurosurgeon.
50. Dr Bhattacharyya saw the
plaintiff in September 2002 and again in February 2006. He agreed with the
diagnosis of soft tissue
injury to the cervical spine and injury to the left
temporomandibular joint. He thought that the prognosis for the cervical spine
was good. The plaintiff was coping with her work as an IT business analyst with
the Commonwealth Public Service and was able to
do most things she wanted to
do.
51. When he saw the plaintiff again in 2006, he was a little less
optimistic about her eventual recovery. She presented with continuing
symptoms
related to the cervical spine injury, including headaches, tenderness and some
tightness in the neck on occasions. He thought
it unlikely that her condition
would change in the near future.
52. Dr Smith saw the plaintiff in 2004. He
cited the well-known association between serious whiplash injuries of the neck
and jaw
joint problems, and accepted that the accident had caused the
plaintiff’s jaw condition. He agreed with Professor Norman that
a splint
would be the appropriate treatment. He said that the jaw problems did not seem
to be of a disabling nature and did not
seriously interfere with the
plaintiff’s life. Rather, it was a minor social inconvenience which
caused some discomfort on
eating hard foods such as apples.
53. Dr Stuart saw
the plaintiff on one occasion, in February 2005. Her headaches were improving.
She still had neck pain radiating
to the shoulder blades, and symptoms in the
jaw. The intensity of her pain was variable, requiring Panadol from time to
time. She
found massage beneficial. Effects on recreational and social
functioning were moderate. She was able to perform most household
tasks,
although she did not mow the lawn or do any gardening. She was able to drive a
motor vehicle. He thought that her prognosis
was good. Somewhat
inconsistently, he expressed the opinion “that her symptoms are now
resolved”.
54. None of the medical practitioners gave oral
evidence.
55. I invited counsel to put a range for general damages for pain
and suffering and loss of enjoyment of life. Counsel for the plaintiff
put a
range of $60,000.00 to $65,000.00. Counsel for the third defendant suggested a
range of $50,000.00 to $60,000.00, and this
was adopted by counsel for the
second defendant. Having had the advantage of observing the plaintiff in the
witness box, it seems
to me that $60,000.00 is an appropriate figure to
compensate her by way of general damages. The plaintiff was 25 years old at the
time of the accident and is now 33. It is eight years since the accident. I
think it likely that the plaintiff will be left with
some symptoms referable to
her injury permanently, but that these are now relatively mild and will not get
any worse. On that basis
it seems reasonable to apportion half of the general
damages to the past and half to the future. The past component attracts
interest
at the Gogic rate. The component should be weighted somewhat more
heavily towards the early period after the accident. I award
interest of
$6,000.00.
56. Treatment expenses were agreed at the time of trial at
$3,502.37. There will have been some increase since then. I allow $3,700.00.
As that amount has been paid for by the plaintiff, from time to time over the
years since the accident, I allow interest at the
prescribed commercial rate of
9 % per annum, of $1,300.00.
57. There is a claim for Griffiths v Kerkemeyer
damages for the commercial value of the time spent by the plaintiff’s
mother
looking after her during the weeks immediately after the accident, and
for time spent by her present partner over the years. For
at least a month
after the accident the plaintiff stayed with her mother during the day. Her
then husband drove her from Mawson
to her parents’ home at Yarralumla on
his way to work, and picked her up again on his way home. The plaintiff’s
mother
gave evidence. She was frank about the fact that apart from being there
for her daughter if needed, she was not called upon to do
a great deal for her
during that time.
58. The plaintiff’s present partner massages her
neck fairly regularly, and this provides some relief. The evidence does not
satisfy me that he does a great deal more for her, and the balance of any such
activities can reasonably be described as a rearrangement
of household
responsibilities. The award under this head of damage should be a modest one.
I allow $3,000.00 for the past, plus
interest of $1,500.00, and $1,000.00 for
the future.
59. For future treatment expenses, including the possibility that
the plaintiff may choose to have some treatment for her mandibular
symptoms, I
allow $2,500.00.
60. As to loss of earning capacity, the plaintiff has not
lost any income to date. All of her absences from work have been covered
by
sick leave credits, which she has continued to accrue. The evidence was
equivocal as to precisely how much time the plaintiff
has taken off work which
ought to be attributed to her injuries since the months immediately after the
accident. It is clear from
the records produced by her general practitioners
that she has had time off over the years for unrelated illnesses, in some cases
associated with her chronic asthma. She has suffered no loss to date referable
to impairment of earning capacity. She may suffer
a loss in the future, if she
needs to take sick leave, whether or not related to her injuries, and if she
runs out of sick leave
credits because of the credits she has used by reason of
her injuries. There is no medical evidence on which I could find positively
that she is likely to lose time from work in the future because of those
injuries. In the circumstances, I allow $5,000.00 for the
loss of her sick
leave credits due to the accident, to the extent that that loss is likely to be
productive of actual financial loss
to her in the future.
61. The total of
the individual components is as follows:
Interest thereon $6,000.00
Treatment expenses – past $3,700.00
- Interest $1,300.00
- Future $2,500.00
Griffiths v Kerkemeyer – past $3,000.00
- Interest $1,500.00
- Future $1,000.00
Loss of earning capacity $5,000.00
TOTAL $84,000.00
62. That amount appears to me to represent a proper reflection of the effects of
the accident upon the plaintiff. There will be
judgment for the plaintiff
against the second defendant for $84,000.00.
63. There will be judgment for
the first defendant. There will also be judgment for the third defendant, both
in the plaintiff’s
action and in the claim for contribution by the second
defendant.
64. I shall hear the parties as to appropriate orders in relation
to costs.
Additional Observations
65. At the conclusion of closing
addresses by counsel, I expressed concern that evidence had been given of the
following:
(a) All of the roller garage doors for the 103 units at Belmont
Apartments, Mawson, had been installed using brackets fixed to brickwork
with
bolts into plastic plugs rather than metal anchors.
(b) It was the opinion of
the two professional engineers who gave expert evidence after inspecting the
premises, and also of a former
national technical manager employed by the
manufacturer of the doors, that the plastic plugs were inadequate for the
task.
(c) One of the engineers had looked at two other doors in the complex,
and found that in one case a bracket was loose and in the other
that a bolt had
pulled out some 20 mm from the brickwork. The engineer described the condition
of that door as “an accident
waiting to happen”.
My concern was
that whilst all of this evidence was known to the parties, the owners and
residents of the other units at Belmont Apartments
could be assumed to be
completely unaware of the potential problem. It occurred to me that it would
seem to be in the interests of
the manufacturer and the installer, as well as
the owners and the residents, that they be informed of these matters, and that
it
be suggested to them that they might think it worth the effort and expense of
having their garage doors inspected. Counsel for the
manufacturer and for the
installer both said that they would pass these concerns on to their clients. I
am unaware whether the matter
has been taken further. I take the opportunity, in
publishing these reasons, to express my concerns again, and this time in a
manner
which may be more likely to bring them to the attention of those
potentially affected. Although the courts are open to the public,
the hearing
of civil actions such as this one is not generally reported in the media, and to
my knowledge there has been no publicity
thus far about this case.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
Associate:
Date: 23 November 2007
Counsel for the plaintiff: Mr RJ Mildren
Solicitors for the
plaintiff: Higgins Solicitors
Counsel for the first defendant: Mr RD
Coen
Solicitors for the first defendant: Pamela Coward &
Associates
Counsel for the second defendant: Mr RA Cavanagh
Solicitors for
the second defendant: Holman Webb
Counsel for the third defendant: Mr GJ
Lunney SC
Solicitors for the third defendant: Moray & Agnew
Date of
hearing: 28, 29, 30 May 2007
Date of judgment: 23 November 2007
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