New South Wales District Court CITATION: Elliot v Penrith Rugby League Club Ltd trading as Cardiff Panthers [2008] NSWDC 271 This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S): 11-12 November 2008 JUDGMENT DATE: 28 November 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ 1 Verdict and judgment for the plaintiff in the sum of $114,601.00. DECISION: 2 The defendant is to pay the plaintiff's costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument, if required. 3 The exhibits will be retained for 28 days. 4 Reasons are published. CATCHWORDS: TORT - slip and fall - inadequate lighting car park of large club - attendant and domestic care needs having regard to prior medical history PARTIES: Yvonne Marie Elliot Penrith Rugby League Club Limited trading as Cardiff Panthers FILE NUMBER(S): Newcastle 210/07 COUNSEL: T R Edwards - Plaintiff R Gambi - Defendant SOLICITORS: Bale Boshev Lawyers - Plaintiff HWL Ebsworth - Defendant JUDGMENT 1 Mrs Yvonne Marie Elliot fell as she left the Cardiff Panthers Club at about 6:30 pm on 4 September 2004. She fractured both of her wrists. She claimed that her fall was the result of negligence on the part of Penrith Rugby League Club Limited, the operator of the club premises. 2 The negligence complained of was that the car parking area in which she fell was inadequately lit and that the defendant's system of cleaning and maintenance was inadequate to remove accumulations of twigs or sticks that caused her to fall. The circumstances of the plaintiff's fall 3 The plaintiff attended the club on Saturday, 4 September 2004 with her son Benjamin and her daughter Kristie. They had lunch and stayed at the club until about 6:30 pm. The plaintiff did not drink alcohol. Ms Elliot left five minutes earlier than the plaintiff and Mr Elliot. 4 They left through what appeared to be a rear entrance to the club adjoining its car park. The car park was covered in asphalt. The plaintiff said that this was the first occasion on which she had left the club through this entrance after dark. There were at the time no lane markings to guide pedestrians through the car park. 5 The plaintiff said she felt her feet move on something as if they were on a roller and she fell forwards onto her hands and knees. The plaintiff estimated that she was about 4.6 metres from the door through which she exited the club when she fell. LIABILITY Lighting 6 The plaintiff said there was no lighting in the car park and she could not see the ground ahead of her. Mr Elliot was walking in front of her and she was able to see the silhouettes of persons who were walking towards her. She concentrated on staying out of their way. 7 After her fall Mr Elliot assisted her to a brick wall where she sat while she was treated by a club employee, Mrs Sharon McDonald, trained in first aid. According to the plaintiff, Mrs McDonald, while filling out an incident report form said she could barely see. Benjamin bought his car to a spot in the car park so that his headlights could provide some illumination. 8 Mr Elliot supported the plaintiff's evidence that it was dark in the car park at the time of her fall. He said visibility was very poor. He said after the fall he looked back and noticed there were two flood lights on the club building that were not turned on. He said he had used that entrance to the club on previous occasions and it was normally well lit. 9 He said the Mrs McDonald used a pad that she moved around and tilted towards the light. She leaned towards his headlights when he drove up his car so that it was parked directly in front of the plaintiff. 10 Mr Elliot rejected the proposition that, even without the floodlights, there was sufficient illumination of the car park provided by interior lighting of the club and lights on bollards situated just outside the entrance. 11 Mr Rodney Edwards was one of the persons seen by the plaintiff to be walking towards her just before her fall. He passed her before she fell but, hearing the noise of her fall, he turned to assist her afterwards. 12 Mr Edwards said that apart from light in the glazed foyer of the club it was very dark. He said he knew Mr Elliot from school but did not recognise him initially because it was too dark. He remembered that there was a light above the sliding doors at the entrance but said there was otherwise very little illumination. 13 Ms Elliot said that when she left the car park five minutes earlier than plaintiff it was very dark. She had used the car park on previous occasions and said that on those occasions the car park was clearly lit with good visibility. 14 Mrs McDonald said she provided first aid to the plaintiff and completed the incident report form. When she left the club to provide assistance to the plaintiff the lighting was fine. Had there been a problem with the lighting, she would have noted it in the incident report. 15 Mrs McDonald acknowledged that Mr Elliot told her that the lighting was not good. She did not recall whether she used the headlights from Mr Elliot's car to assist in completing the incident report form. She agreed that the level of lighting in the car park was not the same as it would have been inside the club. 16 Mrs McDonald agreed that work had been carried out on the car park since the time of the plaintiff's fall. The work included the provision of line markings in the car park to direct pedestrians to the areas in which they should walk, the installation of bollards with lights and the provision of additional lights on the top of the building. 17 Mr Robert Henry was the team leader of maintenance staff at the club at the time of the plaintiff's fall. He described lighting in the foyer of the club that extended one to two metres from the entrance. There were also two floodlights on the side of the building. They operated on a photo electric cell so that they switched on at sunset. The sensor was placed on the roof of the club. 18 Mr Henry said that at most one light would be inoperative at night either because a globe failed or because of vandalism. When he received a report that a globe was not operating he called in an electrical contractor to attend to the necessary repair. 19 A certificate issued by Geoscience Australia stated that on 4 September 2004 the sun set at 17.38 pm, civil twilight occurred at 18.03 pm and nautical twilight occurrent at 18.31 pm. The certificate described nautical twilight as the point at which, in the absence of moonlight, artificial lighting or adverse atmospheric conditions, it is dark for normal practical purposes. 20 A report prepared by Dr Watson at the defendant's request was unhelpful because it dealt with a lighting system that was upgraded after the plaintiff's accident and with lighting levels when all the lights were operating. It was agreed by Mr Adams who prepared a report at the plaintiff's request that, when operating fully, the lights at the club provided adequate illumination. The condition of the car park 21 The plaintiff said that she looked back at the point where she fell when she was sitting on the wall and noticed that there were some branches on the ground in that area. She described the branches as 2 feet in length with a thickness of the size of a 20 cent piece. It was her case that these branches were the cause of her fall. In cross-examination she agreed that these objects could be described as twigs although they were probably bigger. 22 Mr Elliot said that after the plaintiff fell he knelt on the ground to assist her and whilst there he noticed material at her feet that looked like small twigs and sticks, 8 to 10 inches long. 23 Mr Edwards said that, with Mr Elliot, he looked around the surface of the car park after the plaintiff fell in a search of the cause of her fall. He said he saw an indentation in the ground in the area where she fell. 24 Mrs McDonald said she walked with Mr Elliot to the point where he said the plaintiff fell. She saw one or two small sticks, twig sized, on the ground. She said she saw nothing else. 25 In the incident report Mrs McDonald wrote, referring to the plaintiff: She stated the lighting was fairly poor and also there was a couple of sticks (small) lying where she fell. In a subsequent typewritten report Mrs McDonald wrote, referring to Mr Elliot: Her son mentioned that he thought the lighting was bad and also there was a couple of sticks on the ground that she may have tripped on but when I asked Mrs Elliott about the sticks she said she just did not know. 26 Mrs McDonald maintained in the course of her evidence to the court that the plaintiff told her that she did not know what caused her to fall. This was denied by the plaintiff. 27 Mr Henry stated that the car park was cleaned by services staff of the club first thing every morning. The staff picked up rubbish and swept the car park. Any rubbish that accumulated during the course of the day remained until the car park was cleaned the following morning. 28 Mr Adams reported that he took into account obstacles in the car park that included: a pothole of significant size; a drain and some associated unevenness of the surface; loose gravel; and, sticks and twigs of types and sizes that could either catch the toe of a shoe, or roll beneath the sole of a shoe. 29 In the absence of evidence from the plaintiff to suggest that the fall was the result of unevenness in the surface of the car park, I have disregarded Mr Adams' comments on this aspect. Similarly there was no evidence that there was loose gravel in the area where she fell. 30 Mr Adams dealt with the presence of twigs as follows: Considering the fact that Mrs Elliott fell forwards it is most likely that she stumbled forwards after experiencing … a slip at the phase of walking referred to as " toe off" (ie. With the foot from which she was stepping off slipping backwards when only the sole of the foot, as opposed to her heel, was in contact with the surface). The presence of an unobserved round twig or branch beneath the front section of her foot could certainly have resulted in a backwards slip of that foot. 31 Mr Adams concluded that without adequate lighting the plaintiff was unable to perceive potential obstacles to safe movement within the car park. He suggested that the defendant failed to implement a hazard identification and risk assessment process and the need to address risks identified by the provision of adequate lighting and regular sweeping to remove temporary hazards such as sticks, twigs and branches. Findings 32 The Geoscience Australia certificate established that at 6:30 pm on 4 September 2004 it was dark at Cardiff. 33 It was agreed that the lighting was adequate when such illumination as was provided was operational. 34 The lighting system operated automatically. There was no evidence that the system provided a warning when it failed to operate or that any system was in place to check that the lights in fact operated at the programmed times. Mr Henry reacted to reports of malfunction. 35 All witnesses, except Mrs McDonald, described the lighting as poor. An immediate complaint of poor lighting by the plaintiff and Mr Elliot was recorded by Mrs McDonald. 36 The witnesses included Mr Edwards who was apparently independent although he acknowledged a casual acquaintanceship with Mr Elliot. I found no reason to reject his evidence. 37 I find that the lighting was inadequate for the dark conditions prevailing at the time of the plaintiff's fall. I find that the reason for this inadequacy was that the external lighting for the car park was not operating at the time of the plaintiff's fall. 38 Mr Edwards said nothing about the presence of twigs, sticks, branches or any other accumulations of material likely to cause the temporary hazards referred to by Mr Adams. 39 Mr Elliott and Mrs McDonald described the material they noticed on the ground as small twigs or sticks. Their evidence indicated that the plaintiff's description of branches of considerable size was overstated. 40 It was not disputed by the defendant that the absence of lighting created a foreseeable risk of harm. The defendant argued that the system of providing two floodlights which operated automatically on a photo electric cell, maintained when malfunction was reported, was reasonable. It was suggested that this was a one off incident and that it remained undetected for only about 45 minutes between sunset when the floodlights were set to operate and the time of the plaintiff's fall. 41 I do not accept that a system that depended upon the casual reporting of a malfunction was reasonable in the circumstances of pedestrian use of a large car park servicing in a major social club. There was no evidence that the system itself automatically alerted club staff to a malfunction or that any staff member was given responsibility to check the operation of external lights that functioned automatically. 42 I have concluded that a reasonable response to the foreseeable risk of harm would have been to provide a system of ensuring that the external lights that operated by means of an automatic system were in fact functioning by the time it was dark. 43 Had I been satisfied that the lights were functioning I would not have regarded the presence of small twigs or sticks on the surface of the car park as a significant hazard against which a more reasonable response from the defendant was required. The car park was cleaned daily. I do not accept that a more frequent system of sweeping or inspection would necessarily guarantee the absence of such materials within the car park. 44 In ordinary circumstances, however, when the car park was properly lit those materials would have been visible and avoidable by club patrons. 45 I find the defendant in breach of its duty of care to the plaintiff in failing to provide adequate lighting for the car parking area over which she was walking at the time of her fall. DAMAGES Non economic loss 46 After her fall the plaintiff was taken home and then to Belmont Hospital where x-rays revealed the fractures to her wrists. She was referred to Dr Kemp who admitted to her to Lingard Private Hospital on 10 September 2004 for bilateral open reduction, fixation and reconstruction of the wrists involving the use of plates and locking screws. The nature of the surgery involved indicated that the fractures were of considerable severity. 47 The plaintiff was discharged five days later with casts and fibreglass splints that remained in place until January 2005. Physiotherapy was provided for six months after surgery. 48 By the end of 2005 Dr Kemp reported that he was optimistic that the plaintiff's long-term result would be excellent. He reported to her general practitioner that she had full range of movement and good strength in her wrists with some burning discomfort in both wrists and irritability in the joints of the right wrist. Dr Kemp suggested that consideration be given to removing the plates at some future date. 49 The plaintiff complained that she has not achieved the long-term excellent result anticipated by Dr Kemp. She has not consulted him on the question of whether removal of the plates is by now warranted and whether this might relieve her ongoing discomfort. 50 The plaintiff complained of constant aching pain in both thumbs and wrists, aggravated by activity, and lack of strength in her wrists. She stated that these problems affected her activities significantly. 51 Prior to the accident she engaged in crafts such as beading, arts, crochet, knitting and card making. She now does little of this work although she is attempting to crochet in order to increase the range of movement in her hands. The plaintiff complained of problems with her handwriting. At times she uses splints on her wrists to relieve discomfort when driving. 52 The plaintiff had a pre-accident history of psychiatric illness involving depression, anxiety attacks and agoraphobia. She claimed that the symptoms of her illness were aggravated by the accident and the consequences of her continuing wrist discomfort. She said she was frustrated by the limits placed on her activities so that the level of depression increased, she lost confidence and her symptoms and agoraphobia are now more severe. Attendant and Domestic Care 53 The plaintiff stated that she needed considerable attendant and domestic care after surgery and the defendant did not dispute the validity of this part of the plaintiff's claim up to March 2005. 54 The plaintiff claimed however that her condition generated a continuing need for considerable assistance on a voluntary basis in the past and for which she will obtain assistance on a commercial basis in the future if funds are available. 55 The plaintiff said that between 2005 and 2007 she continued to obtain help in preparing food because she could not, for instance, cut vegetables or lift pots. She could not lift heavy shopping. She could not use a standard can opener or hang out heavy items of washing. She could not do heavy housework. 56 The plaintiff also claimed she continued to need assistance with matters of personal hygiene such as shaving her legs, pedicures and closing her bra. 57 In January 2007 the plaintiff was diagnosed with bowel cancer. After surgery in March 2007 and until August 2007 she was fitted with a colostomy bag that required regular cleaning and changing. The plaintiff said she had a number of accidents attending to this task because of the lack of dexterity in her hands. She was embarrassed by the need to involve Ms Elliott in this task. 58 The plaintiff acknowledged that prior to the accident she had been limited in the extent to which she was able to do heavy housework. This was because of a back injury that, after many years, resulted in surgery for excision of the L5/S1 disc in 1988. The plaintiff suffered injury to her neck in a motor vehicle accident in 1981. Medical evidence indicated that the plaintiff continued to have symptoms of some severity as a result of these injuries up to September 2004 and that by that date she had also developed thoracic pain. 59 Ms Elliott gave evidence that she provided considerable assistance to the plaintiff in the period of three months after her surgery. She said she continued to assist her for between two to five hours daily up until the time of the diagnosis of her cancer. She confirmed that she had assisted the plaintiff with the colostomy bag. She stated that she was currently providing help for between four and five hours a week. 60 In addition it was claimed that assistance was provided by the plaintiff's estranged husband. 61 Ms Elliott said that the work of that she undertook included vacuum cleaning, mopping and sweeping and cleaning the bathroom. Tested, she agreed that she had done some of this work prior to the accident but said that she was now doing more. She also agreed that she had assisted the plaintiff with pedicures prior to her fall. The tasks that she rarely or never carried out prior to the fall included cooking, lifting heavy pots and pans, laundry and mopping or sweeping the kitchen floor. Assessment 62 The defendant took issue with the plaintiff's complaints of significant ongoing pain and disability. It alleged that the plaintiff had overstated both the extent of her injuries and their consequences to her ability to undertake activity. Further it was claimed that her limitations predated her fall to a considerable extent. 63 Dr Beiers, examining the plaintiff in March 2007, recorded findings of decreased range of motion and weakness in both wrists which limited the plaintiff's capacity to do fine motor tasks and those involving grip strength. She said the prognosis for improvement was limited. 64 Dr Beiers provided an assessment of the plaintiff's needs for domestic assistance totalling six hours a week. She made no reference in her report to the plaintiff's pre-accident needs for assistance because she had not been provided with a history of prior back injury. Dr Beiers in a subsequent report made it clear that her estimate was based upon her understanding that the plaintiff coped with her house work prior to the fall. 65 Similarly Ms Walker assessed the plaintiff's needs on the basis that she had been fully capable and solely responsible for maintaining her home. She was informed of back and neck injuries as a result of which the plaintiff paced herself with her housework including vacuum cleaning and other heavy tasks. Ms Walker on that basis provided an opinion supporting a claim for a significant degree of assistance past and future. 66 Dr Wallace examined the plaintiff in March 2008. He noted some limited restrictions in the range of movement of the plaintiff's wrists and the plaintiff's complaints of ongoing pain. In his opinion the plaintiff required an ongoing home exercise program and intermittent use of simple analgesic medication. Dr Wallace similarly was not informed of the plaintiff's pre-accident requirement for domestic assistance and his assessment of her care was similarly affected. 67 The plaintiff received some counselling and the report of Dr Kennedy, psychologist, did establish that there was a period during which she suffered an aggravation of her pre-existing psychiatric conditions as a result of the wrist injuries. Dr Vickery who examined the plaintiff more recently was of the opinion that the plaintiff's psychiatric health was no longer affected by her wrist injuries. 68 The defendant tendered in evidence a DVD that recorded episodes of surveillance of the plaintiff in September 2008. The defendant claimed that this recording supported its contention that she overstated her condition. The content of the DVD did not, in my view, advance this contention. It showed the plaintiff undertaking a number of activities. 69 One episode, recorded through the net curtains of her kitchen window, showed the plaintiff moving around in her kitchen. The plaintiff agreed that at the time she was preparing food for herself and her husband. She said she was putting food on a bun. It was not possible to see from the recording precisely what the plaintiff did with her hands throughout this period of surveillance. 70 In another episode the plaintiff was seen using a light weight broom with her right hand for a matter of a few seconds. The third episode recorded the plaintiff at a supermarket carrying a plastic basket with the handle over her right arm. A package of toilet rolls or paper towels was tucked under her right arm and she carried a package in her left arm. The plaintiff denied absolutely that this package contained 12 x 600 ml bottles of soft drink and it was obvious from the way in which she was carrying the package that it was not of significant weight. 71 I have therefore attached little significance to the evidence on the DVD. I was satisfied however that the plaintiff attempted to overstate her condition and the needs for assistance that it generated. 72 The evidence of Dr Beiers and Dr Wallace did establish that the plaintiff continued to suffer some restriction in the range of movement of her wrists although they recorded different levels of restriction. Having regard to my finding of over statement by the plaintiff and noting that Dr Wallace's examination of her was at a more recent date, I prefer his opinions to those of Dr Beiers. 73 The result is that I find that the plaintiff suffered serious bilateral wrist fractures with ongoing moderate levels of pain and discomfort and restriction in the range of movement. 74 I find that this affected her capacity for much of her leisure activity and that during her recovery period it caused an aggravation of her pre-existing psychiatric condition. In the absence of any psychiatric opinion to the contrary, I accept the opinion of Dr Vickery that the plaintiff's injuries were no longer having an aggravating effect. 75 In assessing the plaintiff's claims for compensation it is also necessary to take into account the effect on her life expectancy by reason of the bowel cancer for which she was treated in 2007. There was no evidence that the cancer has recurred to date. The plaintiff's treating surgeon and Dr Page, oncologist, agreed that there is a prospect that the cancer will recur and that the plaintiff's life expectancy has therefore been affected. Dr Page quantified the loss by stating that the plaintiff's normal life expectancy has been reduced by 12 years. 76 Taking this into account and having regard to the plaintiff's pain and suffering following injury with gradual recovery both physically and psychiatrically to her present condition as already described I have assessed her non economic loss at 26% of the maximum sum. I have allowed her the sum of $36,000. 77 I accept that the plaintiff required considerable assistance in the period when both of her arms were splinted and plastered and to a diminishing extent thereafter. Having regard to Dr Wallace's opinion I have accepted that it would be appropriate to award the plaintiff compensation for voluntary care provided at significant levels for a period of seven months. 78 I find that Ms Walker's estimate was overstated but, having regard to evidence supporting the plaintiff's claim of total dependency for a considerable part of that period, I consider it reasonable to allow an average of 35 hours for 30 weeks at a rate of $20 per hour. I have awarded the plaintiff $21,000 for this period. 79 Thereafter, the evidence indicated that there was a pre-existing need for domestic assistance that was not generated by the injuries suffered in this accident. As a result I have not been satisfied that the requirement for assistance related solely to these injuries amounted to the minimum six hours per week and no allowance has been made. 80 The claim for future care is allowed to provide paid assistance for three hours per week to permit the plaintiff to secure some personal care and assistance with food preparation, cooking and grocery shopping. 81 At the rate quoted by Ms Walker of $24.67 per hour and reducing the plaintiff's life expectancy by 12 years I have allowed the plaintiff the sum of $47,825. Out of Pocket Expenses 82 Past out of pocket expenses are agreed in the sum of $2,335.50. 83 For the future the plaintiff claimed sums to provide for anti-depressant and pain relieving medication. It was apparent from the evidence that the plaintiff's future need for anti-depressant medication was not related to this injury. In addition the plaintiff agreed that she relied on pain killing medication to deal with her pre-accident back and neck pain and that her requirement for medication has been increased by the wrist injuries. 84 Her claim for future medical expenses is therefore allowed at one third of the cost of pain relieving medication allowing $5.50 per week, again with the appropriate reduction of her life expectancy. The sum allowed is $3,554. 85 The plaintiff claimed a significant number of items of equipment on the recommendation of Ms Walker. Her total claim was $7,773. It was readily apparent that some of these items would assist the plaintiff. It was also apparent that some of the items provided for by Ms Walker were based upon overstatement by the plaintiff of her condition and others related to the need to assist the plaintiff with household tasks that she did not undertake prior to the accident. 86 Taking these features into account together with the plaintiff's reduced life expectancy I have awarded one half of the amount claimed in the sum of $3886.50. Summary 87 Compensation is awarded on the following heads of damage as follows: Non economic loss $36,000 Past care $21,000 Future care $47,825 Past Out of Pocket Expenses $2,335.50 Future out of pocket expenses $3,554 Equipment needs $3,886.50 TOTAL $114,601.00 ORDERS 88 Verdict and judgment for the plaintiff in the sum of $114,601.00. 89 The defendant is to pay the plaintiff's costs of the proceedings. This order is suspended for seven days to allow the parties to list the matter for further argument, if required. 90 The exhibits will be retained for 28 days. 91 My reasons are published. ********** 24/12/2008 - Noting an error in the 26% non economic loss figure andapplying r 36.17 of the Uniform Civil Procedure Rules 2005 the judgment published on 28.11.08 amended by consent on 23.12.08 as follows:(i) In paragraphs 76 and 87 deleted $117,000 and inserted $36,000(ii) In paragraphs 87 and 88 deleted $195,601 and inserted $114,601(iii) Cover Sheet Order 1 deleted $195,601 and inserted $114,601 - Paragraph(s) 76, 87, 88 and cover sheet Order 1 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.