New South Wales District Court CITATION: Websdale v Collins [2009] NSWDC 30 HEARING DATE(S): 02/02/2009; 23/02/2009; 24/02/2009 JUDGMENT DATE: 5 March 2009 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ 1. Verdict for the defendant DECISION: 2. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis to and including 17/10/2008 and on an indemnity basis thereafter 3. The exhibits are returned 4. My reasons are published CATCHWORDS: Foreseeable or significant risks – Plaintiff failing to act reasonably – Negligence and breach of statutory duty LEGISLATION CITED: Occupational Health & Safety Act 2000; Civil Liability Act 2002 CASES CITED: Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES: Amanda Websdale (Plaintiff) Jennifer Maree Collins (Defendant) FILE NUMBER(S): 71/08 COUNSEL: Mr. C. Hart (Plaintiff) Mr. R. Gambi (Defendant) SOLICITORS: Bale Boshev Lawyers (Plaintiff) Moray & Agnew (Defendant) JUDGMENT 1 Amanda Websdale fell backwards onto a glass topped coffee table in the business premises occupied by Mrs Jennifer Collins. The glass shattered and the plaintiff suffered a number of lacerations the most serious of which caused permanent injury to her left thumb. 2 She claimed that her fall was the result of negligence and breach of statutory duty on the part of the defendant. The issues to be determined were: 1 Whether the defendant was negligent in selecting the position at which a glass topped coffee table was located on the premises. 2 Whether the defendant was in breach of obligations imposed on her by the Occupational Health & Safety Act 2000 in selecting the position at which a glass topped coffee table was located on the premises. 3 Whether the plaintiff's injuries and their consequences were such that her non-economic loss damages exceeded the threshold set by the Civil Liability Act 2002 for the recovery of those damages. 4 Other damages, if any, to be awarded. The circumstances of the plaintiff's injury 3 In 2006 the plaintiff established a dog grooming business that she operated under the name Spunky Dogs. 4 The defendant with her husband, Mr Michael Collins, operated a printing business under the name Oasis Printing on premises at 417 The Entrance Road, Long Jetty. 5 The defendant's clients customarily attended to their business at a counter that faced the door providing entry to the premises. 6 The plaintiff attended the premises on a prior occasion to order business cards for her business. In late 2006 she ordered fridge magnets to be given to clients for Christmas gifts. 7 On 13 December 2006 she attended the defendant's premises believing that the magnets were available for collection. They were not ready but were being printed at the time she entered the premises. Mr Collins invited the plaintiff into the premises, to the left of and beyond the counter, so that she could see the printer producing the magnets. 8 The plaintiff then walked back to the front part of the premises and faced Mr Collins across the counter while she continued her conversation with him. Intending to leave the premises, she stepped backwards and fell onto the coffee table that was positioned behind her. 9 The plaintiff's evidence was that, having concluded her business, she took one step back from where she stood at the counter intending to turn to face the door through which she would leave. She said she stepped backwards with her left leg, her left heel came into contact with the coffee table and she fell. 10 Mr Collins was the only person to witness the incident. He said the plaintiff fell while she was walking backwards and continuing her conversation with him. He said she took several steps backwards before she fell. 11 The plaintiff conceded that she remained in conversation with Mr Collins as she moved backwards. 12 Evidence concerning the layout of the premises established: 1 The entrance door to the premises was on the right hand side of the shop front. 2 The counter was positioned about 4 metres from the door. 3 The counter extended part way across the premises commencing at the wall to the right on entering the premises. 4 The coffee table was located in the area between the counter and the door. 13 There was conflict in the evidence concerning the location of the coffee table both as to its distance from the wall and its distance from the counter. 14 The plaintiff said that the table was positioned in front of the lounge that was shown in the photograph marked Exhibit D3 and that this lounge was positioned against the wall to the right on entry to the premises. The result, on her evidence, was that the table was in the direct path of travel of customers entering and leaving the premises. 15 Mr Collins produced photographs that he said showed the position of the table at the time of the plaintiff's fall. The photograph marked Exhibit 3b showed the table in a position close to the wall and between a two seater cane lounge and a single seater cane chair. Mr Collins prepared a diagram, Exhibit 2, on which he indicated that the table was 800mm from the direct route between the door and the counter. 16 The defendant's evidence was similar to that of the plaintiff in that she agreed that a lounge was positioned against the wall and the coffee table was placed in front of it. She differed in her evidence from that of the plaintiff in stating that the lounge was the small cane model shown in Exhibit 3b. She said the table was in a position between 2 and 5 feet from the wall. 17 The plaintiff said that the closest edge of the coffee table to the counter was about 2 feet or 600mm from its side wall. Mr Collins said it was 2.3 metres from the counter and the defendant estimated that it was 6 feet from the counter. Factual findings 18 The similarity between the evidence of the plaintiff and the defendant concerning the distance of the lounge from the wall of the premises was such that I preferred their evidence to that of Mr Collins. I find that the table was placed in front of a lounge. The issue of which of the two lounges described was in the premises at the time was irrelevant to the outcome. 19 It follows that in this position the coffee table would be more than 800mm further to the left of the room and I find that it was in the path of travel from the door to the counter. 20 The plaintiff's evidence that she was unaware of the presence of the coffee table when she stepped back undermined her statement that it was positioned only 600mm from the side wall of the counter. Had the table been as close to the counter as she described, the plaintiff would have been required to navigate a path around it to stand at the counter facing Mr Collins. This estimate of its distance from the counter is therefore rejected. 21 Mr Collins' evidence concerning the position of the table has already proved to be unreliable. I had no reason doubt the estimate of 6 feet or 2 metres provided by the defendant. I find that the table was about 2 metres from the side wall of the counter. Issue 1 – Breach of Duty of Care 22 The result of these factual findings was necessarily that the table was in full view of persons entering the premises and that it was positioned at an adequate distance from the counter. 23 The plaintiff claimed that the coffee table was placed in a position within the defendant's commercial premises such that it constituted an unusual danger, that the defendant failed to warn her that the table was hazardous because it had a glass top and that the defendant ought to have provided a table that did not have glass as a part of its components. 24 She denied that she noticed the coffee table as she entered the premises, stating that she made eye contact with Mr Collins and that she walked towards him and to the left of the counter. This position was difficult to maintain in the light of the plaintiff's evidence, which I have accepted, concerning the distance of the table from the wall so that it would have been obvious to persons entering the premises. On the plaintiff's own evidence, it would have been necessary for her to walk around the table to meet with Mr Collins to the left of the counter. 25 The principles established in Wyong Shire Council v Shirt (1980) 146 CLR 40 and the provisions of s 5B of the Civil Liability Act 2002 require that, in deciding this issue, I consider whether there existed a foreseeable risk of sufficient significance that a reasonable person would consider that precautions should be taken against the risk. 26 The positioning of the table was of risk only to a person who was not behaving reasonably, for instance, a person who walked backwards. I did not think that it could be said that a reasonable person would regard as reasonably foreseeable or significant a risk that a person would walk backwards into an item of furniture that was placed in an obvious position. 27 The plaintiff's proposition would require the defendant's premises to be entirely unfurnished between the counter and the door in case a patron decided to walk backwards to the door when leaving. This was not a reasonable or rational proposition. 28 I did not consider that the additional element of the glass top of the coffee table added a further element of risk. There was no evidence to suggest that the glass top of the table of itself represented a risk or that it was an inherently unsuitable feature of furniture to be used in commercial premises. 29 The fact was that the accident occurred when the plaintiff, still in conversation with Mr Collins as she stepped backwards, overlooked the presence of the coffee table. She must have been aware of the presence of the table because its position was obvious on entry to the defendant's premises. 30 I find that there was no breach of duty by the defendant because the position of the coffee table did not represent a risk against which a reasonable person in the defendant's position would consider it necessary to take precautionary measures. Issue 2 – Breach of statutory duty 31 The plaintiff relied on s 10(1) of the Occupational Health & Safety Act 2000 and the Regulations made under that Act to claim that the defendant failed to recognise the risk to the plaintiff, to eliminate the risk and to ensure that the premises were free of risk of injury. 32 This part of the claim was not brought in negligence and therefore the provisions of Part 1A of the Civil Liability Act did not apply. 33 The obligation imposed by s 10(1) of the Act required a person who has control of premises, such as those occupied by the defendant, to ensure that they are safe and without risks to health. The defendant agreed that she had not undertaken any program of hazard or risk identification as required by the Act. 34 These provisions in themselves did not, in my view, result in liability on the part of the defendant. The fact that the plaintiff suffered injury on the defendant's premises did not lead automatically to a conclusion that the premises were unsafe or hazardous. The Regulations to which I was referred made it clear that there must first exist an identifiable and therefore foreseeable risk or hazard to the safety of persons on the premises. The Regulations required that the risk be controlled by eliminating it or, if that was not reasonably practical, by managing it. 35 I have already noted the absence of evidence suggesting that the glass top of the table presented a risk in ordinary circumstances. 36 In this case, assuming that any item of furniture on the defendant's premises represented a risk, the only means of eliminating the risk would be to remove the furniture. This would not be reasonably practical. The risk could be controlled by the appropriate positioning of the furniture. In my view, that was done in this case. 37 I find that there was no breach by the defendant of the statutory duty relied on by the plaintiff. 38 I proceed to deal with the issue of damages in the event that this matter goes further. Issue 3 – Non economic loss damages 39 The lacerations suffered by the plaintiff healed without ongoing consequences with the exception of that affecting her left thumb. 40 The plaintiff also claimed to have suffered shock and from a condition of reactive depression and anxiety. These claims were not dealt with in evidence and were not considered further. 41 The injury that was the basis for the damages claim was the laceration to the left thumb that resulted in nerve and tendon damage. The conflict in the evidence between the plaintiff and Mr Collins concerning the way in which the laceration occurred was of no consequence to the determination of the plaintiff's loss. 42 Mr Collins provided initial first aid to the plaintiff and then drove her to a nearby medical centre. The doctor there recognised the potential need for surgery and the plaintiff was taken to Wyong Hospital and later to Gosford District Hospital. 43 She was admitted overnight and surgery to repair the damage was undertaken on 14 December 2006. The plaintiff was discharged later that day with her hand in plaster. 44 After two weeks the plaster was replaced by a splint that remained in place for a further six weeks. During this period the plaintiff received physiotherapy. 45 After a necessarily uncomfortable period of recovery the plaintiff remained with a number of symptoms affecting her left thumb. She was right hand dominant. 46 Those symptoms included changed sensation in various areas of the thumb, in some places causing numbness and in others a sensitivity described as a feeling of pins and needles; restricted abduction of the first web space causing reduced thumb span on the left hand; stiffness in cold or humid weather; difficulty gripping with the left hand and reduced grip strength. 47 These symptoms affected the plaintiff's every day life by reducing her capacity to use her left hand to lift heavy items, do up buttons or clips on clothing, put on earrings, open cans or jars and play her guitar. 48 Dr Hicks and Dr Millons accepted that the plaintiff suffered the symptoms and restrictions of which she complained but they described them as minor or mild. Dr Hicks referred to a minor alteration in sensation in the plaintiff's thumb and restriction in abduction compromising her ability to do fine tasks. Dr Millons referred to a slight reduction in cutaneous sensibility and a mild restriction in abduction. 49 The plaintiff conceded that she continued to experience some slight improvement in her symptoms. 50 It was not suggested that the plaintiff qualified for damages for attendant care but there was evidence that immediately after the accident the plaintiff was cared for her by her partner. 51 The plaintiff claimed that her injury should be assessed at 20% of a most extreme case. 52 Without in any way suggesting that the plaintiff did not have ongoing symptoms, I could not agree that those symptoms affected her to the point where she exceeded the 15% threshold at which she qualified for an award of damages for non-economic loss. 53 Her continuing symptoms affected her non-dominant left hand, they were relatively mild and they continued to improve. In the circumstances I assessed her condition at 12% of a most extreme case. Other Damages 54 Out of pocket expenses: It was agreed that the plaintiff's past out of pocket expenses amounted to $105.50. There was no claim for future medical expenses. 55 Income Loss: At the time of the accident the plaintiff was establishing her dog grooming business. She also worked part time on a process line at Kellogs and studied part time for a degree to qualify her in early childhood education. 56 Six to eight weeks after the accident, the plaintiff returned to her dog grooming business, initially with assistance but later unaided. 57 She has not returned to work on a process line. The work at Kellogs' involved feeding food bars into a fast moving machine. The plaintiff said she could no longer do this type of work because the loss of feeling in part of her thumb and her concern not to bump its sensitive areas would not allow her to work at the speed required. 58 After the accident, however, the plaintiff decided to increase the number of subjects she studied with a view to completing her degree more quickly. She enrolled in fully time study and qualified for student benefits through Centrelink. She stated that she could have used extra funds that might have been available had she returned to the Kellogs' process line. She said she looked for alternative employment but not with a high degree of perseverance because she decided to put her efforts into completing her studies. 59 Those studies were completed in September 2008 with graduation taking place recently. Her capacity to work in her chosen field appeared not to be affected by the problems in her left hand and she has secured employment in that field. 60 The dog grooming business continued. The plaintiff said she did all the work that was available in this business and that it was still developing. She complained of some difficulties particularly in restraining larger dogs. There was no evidence that the proceeds of the business were affected by the plaintiff's injury and no claim was made in this regard. 61 Dr Millons' opinion was that the plaintiff was not incapacitated for any form of employment. Dr Hicks stated that the plaintiff was compromised to a mild degree in her ability to undertake her pre-injury employment. 62 I accepted the plaintiff's evidence that she could not return to the rigours of work on a process line. However, her claimed loss of work at Kellogs for the period commencing on 13 December 2006 to the date of the hearing clearly could not succeed even on the discounted basis proposed. She made a conscious decision to pursue full time study and she received income support from Centrelink as a consequence. The plaintiff made no concerted effort to secure alternative part time employment. She is now employed in early childhood education, apparently unimpaired by her injury. 63 The evidence indicated that Kellogs was unlikely to require the plaintiff's services in the Christmas period of 2006. I accepted that the plaintiff lost the opportunity to pursue this work in the 6 week period from mid-January 2007 until the end February 2007 when I estimated that the university term would commence. The amount involved, at the average rate of earning of $245 per week, was $1,470. 64 There was no evidence to support the claim of future income loss. ORDERS 65 Verdict for the defendant. 66 The plaintiff is to pay the defendant's costs of the proceedings. 67 The exhibits are returned. 68 My reasons are published. ********** 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.