State Rail Authority of New South Wales v Wynn [2003] NSWCA 209 (5 August 2003)

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State Rail Authority of New South Wales v Wynn [2003] NSWCA 209 (5 August 2003)

Last Updated: 5 August 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: State Rail Authority of New South Wales v Wynn [2003] NSWCA 209 revised - 05/08/2003

FILE NUMBER(S):

40465/02

HEARING DATE(S): 18 June 2003

JUDGMENT DATE: 05/08/2003

PARTIES:

State Rail Authority of New South Wales (Appellant)

Grace Wynn (Respondent)

JUDGMENT OF: Handley JA Sheller JA Davies AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 4857/00

LOWER COURT JUDICIAL OFFICER: Balla DCJ

COUNSEL:

H Marshall (Appellant)

M Williams SC/M Ward (Respondent)

SOLICITORS:

Gillis Delaney Brown (Appellant)

McLachlan Chilton (Respondent)

CATCHWORDS:

NEGLIGENCE - occupier's liability - defect in stairs at railway station

DAMAGES - personal injuries - past and future care - must be properly proved

LEGISLATION CITED:

DECISION:

1. Appeal allowed in part; 2. Set aside the judgment of the District Court except as to liability and costs; 3. In lieu thereof substitute judgment for the plaintiff for $99,538.35 with effect from 24 May 2002; 4. The respondent is to pay one half of the appellant's costs and to have a certificate under the Suitors Fund Act.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40465/02

HANDLEY JA

SHELLER JA

DAVIES AJA

5 AUGUST 2003

STATE RAIL AUTHORITY OF NEW SOUTH WALES v GRACE WYNN

CATCHWORDS

NEGLIGENCE - occupier's liability - defect in stairs at railway station

DAMAGES - personal injuries - past and future care - must be properly proved

FACTS

The plaintiff fell on steps leading to No. 1 platform at Maitland Railway Station and was injured. She brought an action to recover damages for her personal injuries. The trial Judge found a verdict in her favour, rejected a defence of contributory negligence, and assessed damages at $151,757.69. The authority appealed on liability and damages challenging the Judge's findings on negligence, causation and contributory negligence, and her awards for general damages and past and future care.

HELD:

(1) The authority had been negligent in failing to rectify a defect in the stairs which created a height differential between adjacent slabs in the same step; (2) The height differential had caused the plaintiff to lose her balance and fall; (3) The plaintiff was not guilty of contributory negligence because the defect in the step was not obvious to someone descending the stairs; (4) The assessment of general damages could not be disturbed; (5) The awards of $36,263.34 for past care and $33,000 for future care had not been proved; (6) The Court was entitled and bound to reassess, and $8,068 would be awarded for past care and $8,976 for future care.

ORDERS

(1) Appeal allowed in part.

(2) Set aside the judgment of the District Court except as to liability and costs.

(3) In lieu thereof substitute judgment for the plaintiff for $99,538.35 with effect from 24 May 2002.

(4) The respondent is to pay one half of the appellant's costs and to have a certificate under the Suitors Fund Act.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

40465/02

HANDLEY JA

SHELLER JA

DAVIES AJA

5 AUGUST 2003

STATE RAIL AUTHORITY OF NEW SOUTH WALES v GRACE WYNN

Judgment

1 HANDLEY JA: The Authority has appealed from the judgment for $151,757.69 entered by Balla DCJ in favour of the plaintiff in a slipping case. The accident occurred on the steps leading to No. 1 platform at Maitland Railway Station about 2 pm on 28 June 1997. It was a fine sunny day. The plaintiff, then aged 68, was descending the steps with three of her grandchildren when she lost her balance and fell, sustaining significant injuries. She had lived in the area for 11 or 12 years and had frequently used those steps.

2 The Judge found that there were 20 steps leading down to a landing and then further steps to the platform. The steps had been properly constructed some 35 years or so before the accident. Each step comprised three concrete slabs, each 910 mms in width and 330 mms in depth. Thus the steps were wide enough to accommodate pedestrian traffic three abreast. Suitable handrails had been provided on either side, but there was no handrail in the middle. The plaintiff, who was very active for her age, playing tennis and jogging several times a week, was walking down the middle of the steps.

3 The Judge accepted her evidence that a few steps from the top she put her weight on her right foot, felt some unevenness, her ankle twisted and she rolled to the right and fell. She did not know at the time what had caused her to fall. She went back a few days later and noticed that the forward edge of the centre slab on the sixth step from the top was higher than the adjacent slab to the right as one descended. She took photographs of the step (55) and of the stairs (56). She estimated the height differential between the two slabs at the forward edge was 1". Mr Simpson, an expert who was qualified in her case, said that in April 2001 there was a misalignment of between 16 and 20 mms between two of the concrete slabs at the fifth and sixth steps. This is broadly consistent with the plaintiff's estimate. The plaintiff said that the steps were in the same condition at the date of trial in May 2002, although the leading edges had been painted yellow.

4 The Judge accepted the plaintiff's evidence and found that she fell after placing her right foot at the point where there was a height difference of around 1" on the sixth step. The appellant submitted that the plaintiff's evidence on this issue was an impermissible reconstruction, and that she could have fallen for a number of reasons on a number of steps. I cannot accept that submission.

5 The plaintiff did not know at the time why the surface was uneven but could describe what happened to her. When she visited the site a few days later she found a significant height differential in adjacent slabs in more or less the right place, which she identified as the unevenness which caused her fall. The inference drawn by the plaintiff and by the Judge was available, and indeed was the obvious inference which I would myself draw from the evidence. Causation in fact was therefore established between the condition of the step and the plaintiff's fall.

6 The height differential is shown in close up photographs taken some years later (113), but the Judge found that they sufficiently represented the condition of the step at the time the plaintiff fell. The photographs showed that the concrete in the centre slab had expanded and spalled because the reinforcing steel had rusted. The expert evidence established that the expansion would have developed over time but the process was a slow one because there had been practically no change in the five years up to the trial.

7 The Judge said that the expansion of the slab and the height differential must have been obvious to employees of the Authority working at the station. It is evident from its internal records (114-5) that employees of the Authority, including the stationmaster, used the steps in the course of their duties whenever a train arrived and left platform 1.

8 The three slabs per step in the stairs leading to platforms 2 and 3, shown in photographs (106-7), had been replaced not long before the accident with single concrete slabs which eliminated height differentials on those steps. The obvious inference is that the original concrete slabs on those steps had also begun to spall, creating potential hazards, and for that reason had been replaced. The further inference is also available that the steps leading to platform 1 were inspected at the same time and for the same purpose.

9 There was expert evidence from Mr Simpson, which the Judge accepted, that the defect in this step could have been rectified by replacing the spalled centre slab with a new one. He said that such slabs were probably held in stock by the defendant at its railway stations as they are a common design used in many railway stations all over New South Wales. This evidence was neither challenged nor contradicted. The Judge found that this action would have been a reasonable response to the risk and inferred that it would be relatively inexpensive. She concluded that a reasonable person in the defendant's position would have rectified the defect by replacing the slabs on at least the sixth step. For my part I would have thought the defect could probably have been rectified by replacing the centre slab alone.

10 It is apparent from photographs taken at the top of these steps that they are quite steep (56, 106-7, 179), and since the upper flight leading to platform 1 has 20 steps down to the first landing, a fall near the top was likely to have serious consequences. The height differential at the leading edge of this step was not a hazard for pedestrians coming up the stairs, and pedestrians descending on the outside slabs would have ready access to the handrails.

11 However pedestrians on the centre slab would not have ready access to a handrail. A significant height differential on the leading edges of the centre slabs would therefore constitute a real hazard. A person walking down will often have all or most of his or her weight on their front foot. If, as the Judge found, a pedestrian lost his or her balance on their weight bearing front foot a fall would be inevitable, and the foreseeable consequences serious.

12 Mr Marshall, counsel for the Authority, submitted that the height differential was obvious to any pedestrian keeping a proper lookout and taking reasonable care for their own safety. This is so for pedestrians walking up the steps, and a height differential would not be a hazard for them anyway. The Judge was not satisfied that the hazard would be obvious to a pedestrian walking down the steps, and the photographs taken from the top of the steps looking down support this view (106-7, 179). The Judge's finding that this hazard would not be obvious to a person in the position of the plaintiff cannot be disturbed.

13 In my judgment the foregoing analysis, which in substance was that adopted by the trial Judge, demonstrates that the Authority breached its duty of care to persons such as the plaintiff by leaving this spalled slab in place on this step. I would confirm the Judge's finding on the liability of the Authority.

14 Mr Marshall submitted that the Judge had wrongly rejected the Authority's defence of contributory negligence. Pedestrians were invited to walk down to platform 1 in the middle of these steps where the handrails would not be within reach. The plaintiff's decision to walk down in the middle of the steps cannot possibly constitute contributory negligence, and the finding that the hazard was not obvious disposes of any other basis for such a finding. The plaintiff was with three of her grandchildren at the time with the youngest, a grandson, in front of her. They must have been some distraction, but the use of these steps by parents or guardians distracted by the presence of young children must have been a common occurrence. I would therefore confirm the finding that contributory negligence was not established.

15 The Authority challenged the Judge's awards for general damages and past and future care. She awarded $60,000 for general damages to the plaintiff who was 68 at the date of the accident and 73 at the date of the trial. The award was undoubtedly high, but the question is whether it was outside the range of a sound exercise of the Judge's discretion.

16 The Judge's basic findings were not challenged. The plaintiff sustained a severe injury to her right wrist and right shoulder and was left with disabilities affecting the use of her right arm and shoulder. She was right hand dominant. As a result she had a restricted range of movement particularly at or above the shoulder and experiences pain. The injury to her right knee has also left her with ongoing problems and the Judge accepted the evidence of Dr Johnson that she had lost between 25 and 30 percent of its effective function, two thirds of which was attributable to the accident. He assessed the disability in her right shoulder as a 35 percent loss of the function of her right upper limb, with a further 10 percent loss due to the fracture of her right wrist. Further surgery was likely involving the arthroscopic debridement of her right knee, and she had a 20 to 30 percent chance of a shoulder replacement.

17 The Judge referred to the plaintiff's back problems but said that their relationship with her fall was less clear. The medical evidence was given in report form, and the evidence about the plaintiff's back was given by Dr Johnson and Professor Dan in the plaintiff's case, and by Professor McLeod in the Authority's case. Dr Johnson first saw the plaintiff after her fall on 15 September 1997 on referral from her general practitioner. He recorded a history of low back pain immediately after the fall and continuing pain and symptoms since. She had considerable restriction of back movement and was tender at the lumbar sacral region. There was radiological evidence of degenerative changes in her spine which had been asymptomatic before her fall and had not stopped her playing tennis and squash.

18 On 18 October 1999 Dr Johnson reported that since September that year the plaintiff had increasing pain in her left hip with some restriction of hip abduction and rotation. From then on she experienced increasing pain and disability in her back and left hip (95-6). In 1999 Dr Johnson had referred her to Professor Dan for her back condition. Her x-rays, a CT scan and a MRI, revealed a right L4/5 disc protrusion and other changes which Professor Dan considered were related to her problems and a direct result of her fall (116-7).

19 Professor McLeod saw the plaintiff on 14 November 2000 and reported the same day. He recorded that she had pain radiating to her left leg, that her back pain kept her awake at night, she limped on her left leg and could not walk for more than 20 minutes. She was tender over the L5/S1 region and lumbar spine. Flexion and extension and lateral flexion in the lumbar spine were also restricted.

20 He diagnosed a pre-existing lumbar spondylosis and considered that there may have been "some aggravation of back pain due to the fall ... but no permanent disability has resulted to her back as a direct result of her accident" (140). He had recorded a history of the plaintiff playing competition tennis and regular swimming and squash before the accident. This was supported by her evidence and by the clinical notes of her general practitioner which pre-dated the fall. It is strange therefore that Professor McLeod should refer to "some aggravation of back pain" when there had been none before the fall. On all the medical evidence I would accept the opinion of Professor Dan and find that the plaintiff's back, left hip and left leg symptoms were causally related to her fall.

21 The Judge found that before her fall the plaintiff was living an active and independent life. She looked after her household and helped her husband, who is a diabetic. Her general practitioner's records do not suggest any significant disability after her recovery from the 1996 surgery to her right knee.

22 Since the accident the plaintiff cannot run or play sport, her wrist aches and is very sore, and her knee hurts most of the time. She also had pain and soreness in her right shoulder and back. She had previously done the gardening and the lawn mowing but could no longer do so.

23 The plaintiff's life expectancy at the date of the accident was about 19 years and at the date of the trial was 14.67 years. Injuries such as these, suffered by a person aged 68, might not ordinarily support an award of general damages as high as $60,000, but this is a case of a very active, healthy, busy woman who had an invalid husband. It would appear that her social life revolved around her tennis and squash and she could have looked forward to many more years of tennis, at least, but for her fall. All this has now been taken from her and she has been rendered a semi invalid who is partially dependent on care provided by others. In these circumstances I would not disturb the award of general damages.

24 The Authority also challenged the awards of $36,263.34 for past care and of $33,000 for future care. The evidence from the plaintiff on her need for care, which was given in chief, was as follows:

"Q. Did you do the maintenance and gardening prior to 1997?

A. Yes.

Q. Since that time have you had help from a number of people?

A. Yes.

Q. How many hours per week on average do you say people have been helping you since the accident?

A. 8 hours per week".

25 She was not directly cross-examined on this topic, but Dr Johnson said (96):

"She is going to need help at home both inside the house and in the garden to maintain it as this has fallen upon her as her husband is invalided with multiple medical problems. Paid assistance is necessary and will be so for the rest of her life".

26 Dr Johnson did not express any view as to the amount of such care that was required or the rate at which it could be secured in Maitland.

27 We were furnished with copies of the plaintiff's schedule of damages submitted to the Judge. Under the heading of "Domestic Assistance" it particularised John Coombes 6 hours per week @ $22 per hour $132 per week, Suzanne Perfrement 1½ hours per week @ $22 per hour $33 per week, lawns 18 attendances per year at $28.60 per attendance $515 per year $10 per week, and handyman 120 hours per year @ $17.50 $2,110 per year or $40 per week, making a weekly total of $215. The claim for the past based on 253 weeks was $54,395, which was discounted by one third to give the figure of $36,263.34 awarded by the Judge. The claim for the future was for 7 years at the same rate converted on the 3% tables to a present value and reduced by the usual 15% allowance for contingencies. This gave a figure of $60,289.22, and the Judge awarded $33,000.

28 A report by Dawn Piebenga, an occupational therapist retained on behalf of the Authority, went into evidence (the report), and she was not required for cross-examination. She interviewed the plaintiff at her home on 4 October 2001 to make her assessment. She had been provided with copies of the medical reports of both parties that had been served.

29 Ms Piebenga identified the domestic chores the plaintiff had previously undertaken and noted the areas where she now required assistance. These comprised the general and heavier cleaning, including the heavier vacuuming, cleaning the bathroom and cleaning the windows, sweeping out the garage and surrounding areas, gardening and lawn mowing. The plaintiff provided details of the persons doing the work and its extent.

30 The general and heavier cleaning was done by her daughter who visited every six weeks and did two to three hours work each time. Her brother did the external sweeping and washed their car once a month and a fair estimate based on the contents of the report in that this took two hours a month. Mr Bruce Webb, a friend, was their handyman and the plaintiff told Ms Piebenga that as her husband's condition had deteriorated they had become reliant on Mr Webb who used to assist with handyman tasks before the injury and continued to do so. His work involved minor repairs, changing washers and light globes, pruning and the like. The plaintiff estimated that Mr Webb assisted for 8 hours a month, but this estimate appears far too high for these tasks and was queried by Ms Piebenga (156 N-P), who thought that two hours a month would be reasonable. However this work was done by Mr Webb before the accident and does not reflect a tort caused need and the costs should not be allowed.

31 Lawn mowing was done by VIP Lawn Mowing, who also did weeding and any spraying required for the lawn. Ms Piebenga sighted the plaintiff's records of payments made to VIP Lawn Mowing between September 1997 and September 2001 which totalled $1,819.40. The lawns were mowed on average every three weeks at a cost of $28.60 a visit. There was a further visit each year for spraying the lawn at a cost of $50 in the past and $60 in future. The lawn mower contractor comes seventeen times a year at an annual cost of $486.20 plus the visit to spray for a total of $536.20 for the past and $546.20 for the future. The daughter's visits every six weeks for three hours give a total of nine visits and twenty-seven hours a year. The brother's visits every month for two hours gives twenty-four hours a year. The annual cost for the brother and daughter at the agreed rate of $22 per hour is $1,122 and with the annual cost of lawn mowing and spraying ($536.20 for the past and $546.20 for the future) gives a weekly total of $31.89 for the past and $32 for the future.

32 Mr Williams SC, who appeared for the respondent, submitted that the Authority should not be allowed to rely on the report to attack the awards for care when the plaintiff had not been cross-examined on this issue. However the plaintiff had been cross-examined (47 I-L) and agreed that she had answered Ms Piebenga's questions to the best of her recollection and truthfully. The report had been served in time, and its contents were within the knowledge or means of knowledge of the plaintiff's advisers. Any failure to further cross-examine the plaintiff was matched by the plaintiff's failure to object to the report or require Ms Piebenga for cross-examination. The Authority's failure to further cross-examine and its tender of contrary evidence may have been a breach of the rule in Browne v Dunn (1893) 6 R 67 HL, but the objection was not taken. The plaintiff could have been recalled in reply to deal with the conflict between her evidence-in-chief and the report, but this did not occur. In any event counsel for the plaintiff may not have been entitled to do this without requiring Ms Piebenga to be called for cross-examination lest there be a further breach of the rule in Browne v Dunn.

33 In my judgment therefore there is nothing in the conduct of the trial which prevents the Authority relying on the report in this Court. The Court is therefore faced with the conflict between the plaintiff's brief and general evidence-in-chief and the report which, on its face, appears to be thorough, detailed and comprehensive, and to address all the types of care identified in the plaintiff's schedule of damages.

34 The Judge said that the plaintiff claimed for a complicated regime of care which was not the subject of evidence, but this was not entirely correct because the types of care in the schedule were those identified in the report. The Judge gave brief reasons for allowing the claim for past care in full and allowing a little over half of the claim for future care. As to the past she said that the plaintiff has significant ongoing disabilities in both her arm and her leg and continued: "I am satisfied that the basis on which the claim is made is reasonable and generally accords with the evidence". She said that the plaintiff claimed $33,000 for the future based on $215 per week "for years" on the 3% tables, with the reduction for vicissitudes and "a further ? reduction". The claim as made was limited to seven years, although the plaintiff had a life expectancy of 14.67 years at the trial but there was no reduction of one third. The plaintiff's claim as presented was for $60,289.22, but the Judge only allowed $33,000, and the reduction is much more than one third.

35 The reasons of the trial Judge on this issue amount to little more than a ritualistic incantation. Although brief, they contain a number of errors which have already been identified. Once the report went into evidence without being tested in cross-examination or challenged in reply the Judge had to deal with it. She clearly rejected the report but failed to note that the plaintiff's schedule was based on its structure. She said that Ms Piebenga assessed the plaintiff's needs at 2.5 hours a week but counsel were unable to explain how she arrived at that figure. I have calculated the figure at 1 hour per week plus lawn mowing. She did not give any reasons for rejecting the views of Ms Piebenga, and did not explain why she reduced the claim for the future from $60,289.22 to $33,000. Her statement in relation to each claim that it "generally accords with the evidence" cannot be supported. However it appears that the parties did agree at the trial on the hourly rate of $22 in the schedule.

36 I would therefore set aside the assessment in respect of past and future care. Since no question of credit arises the Court is bound to reassess and should not order a new trial on this issue. I would accept the substance of the report but adopt the higher figures in each case. This, for the reasons already given, produces a figure of $31.89 per week for the past and $32.08 for the future. On this basis the allowance for the 253 weeks for the past should be $8,068. The plaintiff's claim for the future at the trial was limited to 7 years, presumably to acknowledge the inevitability of a move to retirement housing where she would be relieved of the need for assistance for heavy cleaning and maintenance in the house and garden. $32 per week for 7 years on the 3% tables, discounted by 15%, gives $8,976 for future care and I would allow this amount and substitute these figures for the awards made by the trial Judge. To that extent the appeal should be allowed.

37 The Authority has failed on the issues of negligence, contributory negligence and general damages but has succeeded on the awards for care. In these circumstances the respondent should be ordered to pay one half of the appellant's costs.

38 The following orders should be made:

(1) Appeal allowed in part.

(2) Set aside the judgment of the District Court except as to liability and costs.

(3) In lieu thereof substitute judgment for the plaintiff for $99,538.35 with effect from 24 May 2002.

(4) The respondent is to pay one half of the appellant's costs and to have a certificate under the Suitors Fund Act.

39 SHELLER JA: I agree with Handley JA.

40 DAVIES AJA: I agree with Handley JA.

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LAST UPDATED: 05/08/2003