New South Wales District Court CITATION: LUCAS v IMPACT BUILDING Pty Ltd & ANOR J&P EMPLOYMENT v IMPACT BUILDING Pty Ltd & ANOR [2007] NSWDC 44 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 15-16 March 2007 EX TEMPORE JUDGMENT DATE : 3 April 2007 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. Stood over to 9.30 on 5 April 2007 in order to make final orders. CATCHWORDS: Obvious hazard - Contractors' cross claims. LEGISLATION CITED: Workers Compensation Act 1987 CASES CITED: Fox v Wood (1981) 148 CLR 438 Vicki Jean LUCAS IMPACT BUILDING Pty Ltd PARTIES: ADMAC PLUMBING SERVICES Pty Ltd J&P EMPLOYMENT & TRAINING IMPACT BUILDING Pty Ltd ADMAC PLUMBING SERVICES Pty Ltd FILE NUMBER(S): Newcastle 746/05; Newcastle 72/06 C A W Hart - Plaintiff COUNSEL: N J Polin - 1st Defendant D S Weinberger - 2nd Defendant Bale Boshev - Plaintiff SOLICITORS: Henry Davis York - First Defendant Maccallum Lawyers - 2nd Defendant JUDGMENT HER HONOUR 1 What I am doing is giving a judgment really in respect of Mrs Lucas' claim, and I am going to leave it to the parties to bring in short minutes as far as the cross claims and the s 151Z recovery matter is concerned. It seemed to me to be the sensible thing to do rather than trying to work my way through the jungle myself. 2 Vicki Jean Lucas went to lunch with her daughter on 27 May 2003. She was returning to her office when she walked east on Hunter Street, Newcastle and stumbled in an area of the footpath that had been disturbed in the course of fitting out work at 101 Hunter Street. She claims to have suffered a significant injury to her right leg as a consequence. 3 The claim is brought against Impact Building Pty Limited as the head contractor on the fit-out work and Admac Plumbing Services Pty Limited, the subcontractor responsible for work which required that part of the footpath be excavated. Each of the defendants denied negligence and each claimed contributory negligence against the plaintiff. It was also alleged by Impact Building that the disturbed area of the footpath was an obvious hazard. 4 Cross claims were brought by each defendant against the other, in which if liability was established, each held the other responsible. 5 The second set of proceedings related to the claim brought by J & P Employment & Training against Impact Building and Admac to recover workers compensation paid to Mrs Lucas. The claim is brought pursuant to the provisions of section 151Z of the Workers Compensation Act 1987. 6 The issues to be determined in respect of both claims were as follows: 1. Whether either or both of the defendants was negligent and, if both, the proportions in which they should bear responsibility for the damage suffered by the plaintiff. 2. The extent to which the plaintiff was injured and the extent to which she continues to be disabled by her injury particularly as regards employment. 7 Issues of contributory negligence were not pressed by the defendants in submissions and have not therefore been further considered in these reasons. ISSUE 1 - LIABILITY 8 The plaintiff's evidence was that on 27 May 2003 she was employed by J & P Employment & Training as a call centre supervisor in premises at 45 Hunter Street, Newcastle. Her daughter, Melissa, was also employed at the call centre. In their lunch break the plaintiff walked with Melissa two blocks west on Hunter Street to a food court in the Hunter Street mall. Having eaten lunch, they were returning, walking east on the southern side of Hunter Street. The plaintiff's evidence was that it was raining and windy and that Hunter Street was busy with pedestrians during the lunch hour break. She said many pedestrians were carrying umbrellas. 9 The plaintiff and Melissa crossed Newcomen Street and approached the property at 101 Hunter Street. Surrounding this property was a white hoarding which extended one metre from the property boundary onto the footpath. The plaintiff said she walked close to the hoarding to avoid the rain. She stepped to one side to avoid oncoming pedestrians and stepped into the area of the disturbed footpath. She said her right foot tipped to one side and her right leg went from under her. She struck the hoarding with her shoulder but did not fall to the ground. The plaintiff described the area where she fell as unpaved, slushy and pebbly and grey in colour. Photographs which were said to have been taken later on the same day were identified by the plaintiff as the area in which she lost her footing. 10 The plaintiff was cross examined as to the obvious nature of the hazard prevented by the disturbed area. She denied that it was obvious because the area was crowded with up to twenty pedestrians at the time, many of them carrying umbrellas. Melissa was walking behind the plaintiff at the time that she stumbled. She confirmed the plaintiff's evidence concerning the circumstances of her fall. Evidence that it was wet and windy at the time was confirmed by data from the Bureau of Meteorology included in Dr Cubitt's report (Exhibit N). 11 Neither of the defendants argued that the situation was not hazardous to pedestrians. Indeed the opinion of Mr Clark who was retained by Impact Building was that without barricades, the works on the footpath were left in a condition that was hazardous to pedestrians. 12 Neither defendant argued that the risk presented by the hazard was not sufficiently serious to warrant the implementation of steps to safeguard members of the public from injury. 13 The evidence of Mr Vujic, the principal of Impact Building, was that steps were taken by Admac Plumbing by placing barricades around the disturbed area of the footpath. 14 The issues raised by the defendants were whether the hazard was obvious to pedestrians and which of the defendants was responsible for safeguarding members of the public against the risk of injury created by the hazard. This involved consideration of their contractual arrangements and their conduct after the excavation had been backfilled. Obvious hazard 15 It was apparent from material before the court that the disturbance of the footpath might well have been obvious to the plaintiff if she had had an open view of it. I have already referred to the evidence of the plaintiff, of the circumstances of the weather, the crowding on the footpath and the use of umbrellas. Having regard to this evidence, I find that the disturbed area and uneven area of the footpath was not obvious to her prior to the accident. Contractual arrangements 16 Impact Building was the head contractor on the fit-out of the Oporto Chicken Shop at 101 Hunter Street, Newcastle. It was acknowledged by Mr Vujic that through him, this company controlled the site. Admac Plumbing was the subcontractor engaged by Impact Building to carry out plumbing work. There was no contract in evidence. 17 It appears that the excavation of the footpath was undertaken after acceptance by Impact Building of a quotation (Exhibit S) provided by Admac Plumbing on 3 April 2003. The quotation clearly envisaged the need to disturb the pavers of the footpath because it stated: This quote does not include making good of front pavers. 18 Mr Vujic said that he discussed this qualification with Mr McCallum, the principal of Admac Plumbing. According to Mr Vujic, Mr McCallum said that he would need to pull up the pavers, store them to one side and that Newcastle City Council would reinstate the pavers. There was no evidence from Admac Plumbing to the contrary and this evidence is therefore accepted. 19 The evidence established that before undertaking any work on a public road, the definition of which extends to a footpath, it was necessary to obtain from Newcastle City Council a road opening permit. The conditions upon which such permits were issued by Newcastle City Council were attached to Dr Cubitt's report. Those conditions required, amongst things, that the opening be barricaded by the person responsible for it, and that on completion of the work, the opening be backfilled and finished with a 40 millimetre deep layer of 10 millimetre cold mix asphalt. The backfilling was required to sustain traffic in a safe manner for twenty eight days. 20 The evidence established that no road opening permit was obtained. There was no evidence of any contractual term allocating responsibility for obtaining and complying with the conditions of the permit. Mr Vujic acknowledged that he had been aware of the requirement to obtain the permit. He stated that responsibility for this rested with whoever was to undertake the excavation. No evidence to the contrary was provided by Admac Plumbing and this evidence is therefore accepted. 21 Mr Vujic denied any knowledge of the conditions upon which a permit, if obtained, would have been issued, except that he knew that Newcastle City Council would reinstate the pavers and that pending reinstatement, the excavation was to be backfilled and made safe. He stated that his direction to Admac Plumbing was that the excavated trench be filled to its previous level so that work could be carried out over the top of it. No direction was given to finish the backfilling with cold mix asphalt or to fill it so that it could sustain traffic in a safe manner for twenty eight days. 22 Mr Vujic said he was satisfied that the excavation outside the hoarding had been filled by Admac Plumbing to the level of the surrounding pavers. Mr Vujic agreed that it was probable that Admac Plumbing completed all of its work at 101 Hunter Street by 23 May 2003, this being the last date upon which Impact Building received an Admac Plumbing invoice. 23 The dates upon which the footpath was excavated and backfilled are not clear from the evidence. It was accepted by Mr Vujic that this was probably done at around the time an invoice was rendered on 13 April 2003, that is more than twenty eight days prior to the plaintiff's accident. 24 As to barricading, according to Mr Vujic, the area was barricaded by Admac Plumbing and the barricading remained in place after Admac Plumbing had left the site. He said it was present whenever he was on site. He said that, had he noticed that the barricading had been removed, he would have telephoned Mr McCallum or would himself have placed barricades or witches hats around the area. 25 It was clear from the plaintiff's evidence and from photographs taken in the afternoon of her accident that the barricades were not present for a good portion of the day on 27 May 2005. Mr Vujic did not produce his diary so as to establish whether or not he was on site on 27 May 2003. He stated that it was most likely that he was present if that was a week day, which it was. 26 There was no evidence as to which of Impact Building or Admac Plumbing was responsible for notifying Newcastle City Council that the road opening work had been completed so the footpath could be restored. There was no evidence that the City Council had been notified of this fact prior to the plaintiff's accident. 27 Mr Vujic agreed that the area of the footpath was uneven. He did not agree with Mr Clark's assessment that it was unsafe. Findings - Liability 28 I find as follows: 1. Impact Building was the head contractor with overall responsibility for the site. 2. Admac Plumbing excavated the trench which partially extended onto the footpath on or about 13 April 2003. 3. Admac Plumbing probably finished all work on the site by 23 May 2003. 4. Admac Plumbing backfilled the trench so that it was initially level. It did not cover the trench with cold mix asphalt. 5. Whether the Admac Plumbing barricades remained in place after 23 May 2003 was irrelevant because there was evidence that the barricades were not there on 27 May 2003, a working day. They were not there at the time of the plaintiff's fall and they were not there later in the day when the photographs were taken. 29 This, in my view, having regard to the acknowledged hazard, represented evidence of neglect both on the part of Impact Building and Admac Plumbing. 30 In the absence of evidence to the contrary for Admac Plumbing, I accept the evidence of Mr Vujic that Admac was responsible for obtaining the road opening permit and for complying with its conditions. 31 The excavation was not left safe for pedestrians. There were various ways of doing this, none of which were unduly expensive or inconvenient. They included the use of barricades or witches hats. The most obvious, however, was compliance with the requirement to prevent unevenness through settlement of the backfill by laying the cold mix asphalt. 32 Admac Plumbing was therefore negligent in leaving the site when the excavation was not safe for pedestrians and failing to ensure that the barricades remained in place, failing to obtain the road opening permit and failing to comply with the conditions that would have been attached to the road opening permit had it been obtained. 33 Impact Building was the head contractor with control of the site and having a representative on site on a daily basis. Its negligence arose out of its failure to ensure that the road opening permit had been obtained, in failing to familiarise itself with the conditions that would have been imposed had the permit been obtained, in particular, the requirement to lay a cold mix asphalt surface, and failing to ensure that barricades were in place on 27 May 2003. 34 As the party primarily responsible for the creation of the hazard, Admac Plumbing must be held liable to a greater extent, and I hold it liable to the extent of 60% for the loss and damage suffered by the plaintiff. 35 Impact Building is held liable to the extent of 40%. ISSUE 2 - DAMAGES 36 The issues were: 1. The precise nature of the injury and the cause of the claimed extensive ongoing disability. 2. The extent of the plaintiff's income loss. 3. The extent of her requirements for assistance with domestic care. Injuries and disabilities 37 The plaintiff complained of immediate pain in her right knee and ankle and swelling on the side of her right calf. Xrays indicated that no fracture had been involved but the plaintiff said she was unable to bear weight on her right leg and she relied on crutches until September 2003. Treatment has involved physiotherapy, hydrotherapy and pain blocking injections. None of this treatment has resolved her pain. 38 In March 2005 her knee was manipulated under anaesthetic, after which it was placed in a brace. This treatment is reported to have allowed a small amount of further extension in the knee joint but the plaintiff remains unable to straighten the right leg fully. As a consequence, she walks with a limp. She said that sitting puts pressure on the back of her leg and causes her instant pain. She claimed to be unable to drive in heavy traffic because of the need to move her right foot from the accelerator to the brake. 39 In respect of her complaints of ongoing pain and discomfort, the plaintiff was challenged only as to whether she had exaggerated the claimed difficulty in driving. 40 Medical experts disagreed as to the cause of her ongoing disabilities. 41 The plaintiff was treated by her general practitioner and by Dr Harrington, an orthopaedic specialist to whom she was referred in June 2003. Dr Harrington arranged for an MRI scan which he said indicated no abnormality in the knee. He also noted on first consultation that the plaintiff's knee was stable but that she was reluctant to straighten it. Early in his treatment, Dr Harrington stated that the plaintiff was the type of person who could develop a reflex sympathetic dystrophy. 42 In July 2003 Dr Harrington referred the plaintiff to the Newcastle Pain Clinic. In September 2003 he reported observations of quadriceps wasting and swelling in the plaintiff's right foot. Some improvement was noted in February 2004 and Dr Harrington expressed the hope that further improvement could be obtained. This was not forthcoming however. In a lengthy report to the plaintiff's solicitors in February 2007, Dr Harrington described ongoing symptoms and his observations which included quadriceps and calf muscle wasting and absence of full extension. He stated that the prognosis for the plaintiff was poor. 43 Dr Best examined the plaintiff for the workers compensation insurer in March 2006. He accepted that she was suffering from a chronic regional pain syndrome of a fair degree of severity and he stated that her condition was not likely to change in the foreseeable future. 44 Dr Pillemer, examining the plaintiff in November 2004, did not accept the diagnosis of reflex sympathetic dystrophy or regional pain syndrome. He suggested that the plaintiff was suffering from a neuroma which required investigation. The diagnosis of reflex sympathetic dystrophy was rejected because it had not been supported by a bone scan. 45 Dr Smith, in March 2006, in contrast to observations reported by Dr Harrington, said that he observed no wasting in either thigh and no evidence of reflex sympathetic dystrophy. He said that this condition resolved with time, leaving no disability and that activity was the best form of treatment for it. He accepted that it was possible that the plaintiff had developed the reflex sympathetic dystrophy, or alternatively that she had suffered a soft tissue injury to her lower leg and had developed a type of misuse disorder. However, he said, based upon his examination of the plaintiff, she had recovered from any such disorder, and her ongoing knee problems were likely to be the result of degenerative changes affecting her right knee. Like Dr Pillemer, he considered that the right knee had not been properly diagnosed. 46 He repeated this opinion in January 2007. He stated that the aggravation of the osteoarthritis in the plaintiff's right knee was causing the plaintiff some disability but said it was unrelated to any injury suffered in her fall. He said he was unable to offer a prognosis in the absence of an accurate diagnosis. 47 Dr Kerridge was also not persuaded by the diagnosis of reflex sympathetic dystrophy. He did, however, in August 2006 accept that the plaintiff was suffering a severe disability by reason of the limits on movement of the right leg. He made some suggestions for further investigation. Like Dr Smith, he declined a prognosis because the plaintiff's condition had not been completely diagnosed. He referred to reflex sympathetic dystrophy as involving abnormal pain behaviour and he said that he had no doubt that the plaintiff did have a true physical disability and that she also had abnormal pain behaviour. 48 The result is that all medical experts appear to accept that the plaintiff suffers from the symptoms and disabilities of which she complains. Only Dr Smith suggested a cause unrelated to the fall in May 2003. In this respect, although the plaintiff conceded a pre-accident medical history in respect of injuries she suffered to her right shoulder in 1990, there was no evidence to indicate that prior to the accident she suffered from any symptoms in either knee. 49 The result is that I find that the plaintiff suffers from an ongoing disabling condition affecting her right knee. The diagnosis is unclear from the medical evidence, but it is alternatively a reflex sympathetic dystrophy, abnormal pain behaviour of some kind or an aggravation of pre-existing arthritis in the knee joint. I find that her condition was caused by the wrenching injuries suffered when she stumbled in May 2003. 50 Aside from Dr Kerridge and Dr Smith who were not prepared to give a prognosis, the other medical experts indicated that the prognosis for recovery was poor, having regard to the period of time for which the plaintiff's symptoms have continued. I accept that it is unlikely after nearly four years that there will be any further substantial recovery. 51 I have thus assessed the plaintiff's general damage on the basis that she suffers from a permanent but stable condition at 30% of a worst case, awarding her general damages in the sum of $98,000. Income Loss 52 The evidence was that the plaintiff returned to work on crutches after some rehabilitation. She said her work prior to the accident involved moving around to supervise staff who were making telephone calls from a row of desks. She also attended client meetings. She said that much of her time was spent on her feet and after the accident, not only did she have difficulty concentrating on her work, but she had difficulty moving in confined spaces using crutches and sitting for extended periods. For some time she did filing work which was brought to her home. 53 She resigned from her position with J & P Employment & Training in November 2003. Between November 2003 and February 2004 she worked without pay for her former husband who was attempting to establish a canteen business at Vales Point Power Station. The plaintiff said that she worked between two and four hours a day and that she could do the work because she was able to sit and stand at will. 54 The rehabilitation providers indicated that she was in fact working six hours a day, five days a week. 55 The plaintiff has not worked since this business failed. She complains of difficulties in securing employment because sitting places pressure on the back of her right leg and she is unable to drive in the Newcastle central business district because of the heavy traffic and the need to move her foot from the accelerator to the brake of her vehicle. 56 The plaintiff stated that she does undertake some voluntary work for a local football club providing first aid. She says she does this by hobbling onto a football field. The ages of the players in the teams involved are between five and sixteen years. Her role is to assess the injury and to call an ambulance if necessary, or alternatively, to treat the injured party on the sideline. 57 The plaintiff agreed that the job that she had at the time of her fall was suitable and she could do it except that she could not drive through traffic from her home at Dora Creek to Newcastle and she could not sit for long periods. She denied that she was exaggerating the extent of her driving limitation and she agreed that it would be ideal if she could find work of this nature in an area where driving in traffic was not required. She said there were two call centres in her area, but the work provided there was purely on a commission basis. 58 She agreed that she had other job options. Questioned concerning reception work and filing, she said she had not previously done this type of work and therefore could not offer an opinion as to whether it would be suitable. 59 The plaintiff received a carer's pension in the latter part of 2005 whilst caring for her aged mother. Her mother has since been placed in a nursing home because the plaintiff is not able to care for her in her subsequently deteriorated condition. 60 Payslips (Exhibit P) indicated that the plaintiff was earning about $400 a week net at the time of her injury. Her past loss is claimed on this basis. 61 There are a number of factors to be considered in dealing with the past loss: 1. The plaintiff was capable of and did work for at least two to four hours a day from November 2003. Her evidence was that this work ceased because the business closed and not because she was hampered by her injuries. If I apply the rate paid to her at the time of her injury, I assess her income earning capacity for this work at around $200 per week net. 2. Aside from the statement of difficulty of driving in traffic, there was no evidence of what attempts had been made by the plaintiff to secure employment. 3. For an unspecified period, the plaintiff received a pension to compensate for her loss of income while caring for her mother. 4. The plaintiff's work history prior to her accident had been limited. She was in casual employment at the time of her injury. 62 Taking these factors into account, I have assessed past loss on the basis of a full loss for one year from the date of injury and on the basis of $200 per week for the balance to 3 April 2007. The sums involved are $20,800 and $31,800 respectively. I round this figure off to $50,000 to allow for the exigencies of casual employment. 63 Superannuation is allowed at 9% in the sum of$4,500 . 64 As to the future, $450 per week is claimed on the basis of total incapacity. I do not accept that the plaintiff is totally incapacitated for employment. I have allowed a partial loss of $200 per week with a 20% provision for vicissitudes to take account of future contingencies and to recognise the intermittent and casual nature of her likely future employment prospects, having regard to her pre-accident history. 65 No evidence was given of the plaintiff's likely date of retirement. On the basis that this will be between the ages of sixty and sixty five, the loss of income for the future has been rounded out to $100,000. 66 Superannuation is allowed at 9% in the sum of $9,000. Domestic care 67 A substantial claim is made for domestic care. At the time of her injury, the plaintiff was a single parent, her household comprising herself, her two younger children then aged ten and eight years and her mother, then seventy nine years old. The evidence was that the plaintiff undertook all household duties without restriction. She also did her own gardening and small jobs. 68 Immediately after the accident, there was evidence of substantial assistance from Melissa who lived with her own family on a nearby property. There was evidence that Melissa helped in the morning for 45 minutes a day and in the afternoon for one and a half hours, and that she provided assistance at weekends. The defendants conceded that the required minimum of six hours a week of care was provided until November 2003. I have therefore allowed for that period, an average of 20 hours per week at a rate of $25 per hour, amounting to $26,000, appreciating that at the commencement of the period more care was provided and that the requirement reduced towards the end of that period. It was apparent from the evidence that after this period the requirement for assistance was less than six hours a week. 69 The plaintiff has paid $20 for lawn mowing once a week in summer and once every two weeks in winter. She rejected the suggestion that this was excessive because of the drought. I have accepted the claim and allowed $1,500. 70 The plaintiff said she currently receives assistance with lawn mowing and also with gardening, shopping, housework and house maintenance, pool maintenance and stacking wood for the wood fire in her home. 71 Ms Walker in June 2006 estimated the plaintiff's need for care at six hours a week. She also provided an assessment of the cost of providing the plaintiff with a number of aids to assist with her disability. Dr Kerridge was critical of Ms Walker's assessment and suggested that a certain level of activity would aid the plaintiff's rehabilitation. Dr Smith considered that no assistance was required. I do accept however that some assistance with the plaintiff's domestic obligations is necessary, having regard to her disabilities. 72 In assessing the future need for paid assistance with domestic care, I recognise that there will be a greater need to provide for care associated with the plaintiff's continuing obligations to her children who are now fourteen and twelve years old. I have therefore allowed for four years, that is, until the youngest is sixteen years of age, the amount I consider necessary being five hours at the rate of $30 per hour for services as listed by Ms Walker. The amount for the first four years is therefore $28,440. Thereafter I have allowed three hours a week at the same rate on the basis that this amount is deferred for four years. I have calculated the sum at $62,071. 73 Ms Walker, as I mentioned, recommended some items of equipment which I consider to be reasonable, having regard to the plaintiff's condition, and they are allowed in the sum of $5,639. There was no evidence to support an amount claimed for home modifications. 74 Past out of pocket expenses have been agreed and allowed in the sum of $11,469.93. 75 For the future, the plaintiff claims medication and medical review by her general practitioner and orthopaedic specialist. 76 There was no evidence from the plaintiff concerning the medication that she takes except that she is no longer taking Panadeine Forte. Medical evidence refers to pain killing medication and I accept that some will be required from time to time, as will some medical services related to her condition. In the absence of evidence concerning her precise current needs, I have done my best and estimated future requirements at a value of $20,000. 77 The Fox v Wood component is allowed in the agreed sum of $1,284.29. 78 The total of those sums is $417,904.22. 79 I will stand the matter over to 9.30 on Thursday 5 April to make final orders. ********** 11/09/2008 - Formatting in short case title and parties as to P/L - Paragraph(s) short case title and parties 11/09/2008 - Formatting short case title and parties as to P/L - Paragraph(s) Short case title and parties DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.