Mathews v USDD [1999] NSWSC 1141

New South Wales Supreme Court CITATION : Mathews v USDD [1999] NSWSC 1141 revised - 02/12/99 CURRENT JURISDICTION : Equity Division Admiralty List FILE NUMBER(S) : 6/1999 HEARING DATE(S) : 17/11/99, 18/11/99 JUDGMENT DATE : 30 November 1999

PARTIES : Fiona Amanda Squire Mathews - Plaintiff The United States Department of Defence - Defendant JUDGMENT OF : Rolfe J

COUNSEL : Mr C.C. Branson QC/Mr J.T. De Berg - Plaintiff Mr R.R. Stitt QC/Mr G.M. Watson - Defendant SOLICITORS : Keddies - Plaintiff Allen Allen & Hemsley - Defendant CATCHWORDS : DECISION : Judgment for the plaintiff against the defendant in the sum of $94,070.20

I N D E X

Page

Introduction 1

Negligence 6

Damages 14 (a) The Plaintiff's History And Complaints 14 (b) The Plaintiff's Cross-Examination 27

Conclusions 47

Damages For Pain And Suffering 51

Past Economic Loss And Future Loss Of Earning Capacity 53

Past Wage Loss 54

Loss Of Future Earning Capacity 61

The Griffiths v Kerkemeyer Claim 65

Amounts 67

Orders 68

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION ADMIRALTY LIST

ROLFE J

TUESDAY, 30 NOVEMBER 1999

6/1999 - MATHEWS v THE UNITED STATES DEPARTMENT OF DEFENCE

JUDGMENT

HIS HONOUR:

Introduction 1 On or about 2 May 1992 the "USS Independence", ("the vessel"), which was, at the time, probably the largest aircraft carrier in the world and which was owned by the defendant, The United States Department of Defence, for which Mr R.R. Stitt of Queen's Counsel and Mr G.M. Watson of Counsel appeared, and a number of other United States Navy vessels, arrived in Sydney Harbour. The occasion for the visit was the celebration of the 50th Anniversary of the Battle of the Coral Sea, and the vessel moored at Garden Island. 2 On the evening of 2 May 1992 the defendant, or those for whom it was responsible, arranged a cocktail party on the vessel to which, amongst a large number of others, the plaintiff, Ms Fiona Amanda Squire Mathews, for whom Mr C.C. Branson of Queen's Counsel and Mr J.T. De Berg of Counsel appeared, and her then husband, Mr Elbert Lynn Mathews, were invited. The reasonable inference is that all guests were invited and, accordingly, those, including the plaintiff and Mr Mathews, were boarding the vessel at the defendant's invitation. So much was not in issue. 3 The plaintiff and Mr Mathews travelled to the dock by car and proceeded to board by ascending a gangway basically in single file in a line of guests. The gangway ran parallel to the side of the vessel, to the point where guests could obtain access to her. The plaintiff was walking in front of Mr Mathews. 4 There was a platform at the top of the gangway, which, on the evidence I accept, was approximately several metres long and slightly shorter in width. It was covered with a blue type of carpet and persons boarding the vessel stepped from the gangway onto the platform and then turned left towards the vessel. The platform was above deck level and to move from it to the deck it was necessary to cross the platform and step down from it to the deck. The portion of the deck to which people stepped may also have been covered with the same type of carpet. 5 Although there was some dispute on the evidence, I am satisfied that there was a line of naval and other dignitaries on the deck, who were greeting guests as they arrived. The plaintiff has suggested, on several occasions, that this greeting line was on the platform. I am satisfied that it was not. I am, however, satisfied that sailors from the vessel were on the platform and on the deck adjacent to it, and that part of their duties involved assisting guests from the gangplank onto the platform and, more importantly for present purposes, from the platform to the deck. This involved walking down either one or, perhaps, two steps. There was no handrail or handgrip of which guests could take hold before stepping down from the platform to the deck. Nor was there any warning that the step was there. 6 The plaintiff stepped across the platform followed by Mr Mathews, and her evidence in chief as to what then happened appears in paragraphs 22 and 23 of her witness statement of 4 November 1999, Exhibit A:- "22. Upon arrival at the ship I walked up the gangplank in front of my husband. There was a step from the gangplank to a platform. I stepped off the gangplank onto the platform. I was not assisted by anyone. The platform was covered in blue synthetic artificial grass carpet. From that platform I had to step down to the next platform. I led with my left foot down the step to the next platform. I was not assisted. As I did this my right shoe heel got caught in the carpet on the top platform and I fell down. I fell as I had already commenced stepping with my left foot down to the next level when my right foot unexpectedly got caught. This caused me to lose my balance and I fell on to the lower level falling forward on my knees and landing on my right side. 23. The steps which I fell down were not fitted with any handrails, and situated immediately to the side of the steps was a sailor, however, I was not provided with any assistance or offer of assistance from this officer." 7 In his witness statement of 10 November 1999, Exhibit B, Mr Mathews described what happened in paragraphs 5, 7 and 8 thus:- "5. At the top of the gangplank there was a platform which was covered in blue grass matting. There was an officer on my left on the platform at the top of the gangplank. He was taking each guest's arms as they stepped off the gangplank onto the platform. When Fiona stepped off the gangplank, she was not assisted by the officer. I observed him to be distracted. He was talking to another officer. He did not take Fiona's arm as she stepped off the gangplank onto the platform. Fiona took another step forward on the platform and fell forward. I saw her heel had caught in the blue grass matting covering the platform. Fiona was near the edge of the platform. I lunged forward to try and stop her falling forward. The officer on my left noticed me lunging forward and grabbed me. This stopped me catching Fiona. … 7. Fiona fell forward onto her knees down the step from that platform onto her right side. The platform was not very wide until reached the next level. There was a line of officers on the deck. In falling, Fiona fell onto and down to the next level which was also covered in blue grass carpet. 8. There was no rail along the side of the blue grass carpet. The carpeted section was wider than the gangplank. The steps off the gangplank and from one level of the platform to the next were steep. Fiona fell to her knees. She tried to stand up and could not initially. I said to her, 'What happened?' She said, 'My heel caught'." 8 The basic facts asserted by the plaintiff and Mr Mathews were not, essentially, in issue. The defendant accepted that she was walking across the platform, which was covered with the blue carpet material; that Mr Mathews was walking behind her; that the heel of her right shoe caught in the carpet as she was stepping forward to descend the step or steps from the platform to the deck; that that caused her to fall forward; that sailors on duty to assist her descending did not do so; and that Mr Mathews was prevented from further assisting her by the action of a sailor in stopping his forward movement. It was not in issue that there were no handrails or supports available at this point. It was submitted by the defendant that reasonable care did not require any for the purpose of negotiating one step. 9 The issue is whether, in these circumstances, the defendant was guilty of negligence. The principal allegations of negligence were that the sailors, who were obviously on duty to assist guests move from the gangplank to the platform and thence to the deck, failed to initially assist the plaintiff, as they did other guests, and, having failed in that way did not observe the difficulty she encountered until it was too late to prevent or check her fall; whether there should have been a handrail or support in position; and whether a warning should have been given. 10 The defendant submitted that if, contrary to its primary submission, it was found to have been negligent, the plaintiff was guilty of contributory negligence by allowing her heel to become caught in the carpet. Although other allegations of contributory negligence, including the plaintiff's failure to seek assistance from the sailor on duty, were pleaded, none were argued in final submissions. 11 The parties accepted that the question of negligence was to be determined, in circumstances where the plaintiff was a lawful entrant on the vessel, by whether the defendant took reasonable care to avoid foreseeable risk of injury to her: Australian Safety Stores Pty Limited v Zaluzna (1987) 162 CLR 479 and Romeo v Conservation Commission of the Northern Territory (1988) 192 CLR 421.