Hana v Juno Investments Pty Ltd [2003] NSWSC 551

New South Wales Supreme Court

CITATION : Hana v Juno Investments Pty Ltd [2003] NSWSC 551 HEARING DATE(S) : 05/05/03 and 06/05/03 JUDGMENT DATE : 24 June 2003

JUDGMENT OF : Newman AJ at 1 DECISION : Judgment for the Plaintiff for $840,229.25. Costs order deferred.

CATCHWORDS : Negligence - Contributory negligence - Assessment of damages CASES CITED : Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Reports 81-363 PARTIES : Adel Hana Juno Investments Pty Ltd FILE NUMBER(S) : SC 20847/01 COUNSEL : Pl: D Elliott Def: D O'Dowd SOLICITORS : Pl: Stephen Smart & Associates Def: Moray & Agnew

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Tuesday 24 June 2003

20847/01

ADEL HANA v JUNO INVESTMENTS PTY LTD

JUDGMENT 1 NEWMAN AJ: This is a claim made by the Plaintiff for damages for personal injuries which he suffered at the Defendant's premises on 20 January 2000. The Defendant denies liability and alternatively raises a defence of contributory negligence. 2 I find the following facts. 3 On 20 January 2000 and at all relevant times, the Defendant operated licensed premises at Railway Parade Carlton which were known as the Royal Hotel. Part of those licensed premises included a bottle shop at which customers from the hotel could purchase bottles of potable spirit and other liquids. The Plaintiff who owned and operated a hire car business was an occasional customer of the Defendant's business. Other than purchasing alcohol for his own consumption the Plaintiff purchased liquor for consumption by passengers in vehicles operated by him. 4 On 20 January 2000 the Plaintiff having visited the international terminal at Kingsford Smith Airport for the purpose of picking up a passenger, on finding that his passenger had not arrived on the flight for which he was scheduled to arrive left the airport to go home. On his way home (he then lived at Ruby Street Hurstville) he stopped outside the Defendant's premises at Carlton. He then entered the Defendant's premises. His purpose in visiting the Defendant's premises was firstly to buy beer to consume with his evening meal and second to see if there was any liquor available at a competitive price which he could use to stock his hire car for consumption by his passengers. 5 Whilst at the Defendant's premises he selected two bottles of beer from a refrigerator and was carrying them towards the shop's counter to pay for them. While walking towards the counter he was looking at the liquor on display to ascertain if there was any suitable liquor for sale for the purpose of stocking his vehicle. While so proceeding he stepped into an open manhole on the floor of the premises and fell some 2.5 metres to the concrete floor of the cellar to which the manhole gave access. He suffered substantial injuries in that fall. I shall return to the nature and effect those injuries had upon the Plaintiff later in these reasons. 6 There was no issue in the case that the manhole was in any way guarded by a barrier at the relevant time. Subsequently a barrier was erected but as I have said there was none at the time of the Plaintiff's accident. 7 In my view for the operator of a bottle shop to leave open a manhole on the shop's floor at a place where customers of the business would pass without providing a barrier to prevent customers from falling down the man hole is a clear breach of the duty of care owed by the operator of such premises to take care for the safety of customers. The reality in this case is that the only issue relating to liability is that of contributory negligence. 8 Essentially the Defendant contended that the Plaintiff was in breach of his duty to take care for his own safety by not looking where he was going when he was walking from the refrigerator to the shop's counter. In so contending the Defendant relied upon cases such as Dailly v Spot-On Investments Pty Ltd (1995) Aust Torts Reports 81-363 at 62,705. In that case the Court of Appeal considered a matter in which the trial judge had found for the Defendant. Dailly, the Plaintiff, had suffered injuries when she fell over a rack in a shop in which picture frames were displayed. The rack itself stood on the floor outside the service counter. It was the Plaintiff's claim that the Defendant had unsafely cluttered the shop floor by having the rack of frames where it was and that the rack accordingly was an unusual danger because it was below eye level and the person sufficiently distracted by the act of proceeding from a display cabinet to the counter could not be expected to notice the rack between the cabinet and the counter. 9 In delivering the judgment of the Court of Appeal Sheller JA at 62,709 said this: "In the present case relevant factors are that display stands are commonplace in shops, the display rack was obvious, the defendant could reasonably expect that people coming into the shop would proceed around the display rack so as to avoid it and the display rack was in such a position as would not appear to a reasonable person to create a situation of danger likely to cause serious injury to a visitor to the shop. With this, one can contrast an unfilled space between a false kerb and the permanent kerb and unexpected steep cement stairs in a stairwell a small distance to the side of a cement path. Like the example given by Mahoney JA in Phillis v Daly at Aust Torts Reports 68,474; NSWLR 74 a shopkeeper might have in place a chair at the counter for the convenience of persons like the plaintiff. It is reasonably foreseeable that a customer, whose attention is distracted by looking to the shop assistant or at an article displayed on the shelves, may fall over the chair and suffer the sort of injuries that the plaintiff suffered. It does not follow there must have been a breach of duty by the occupier of the shop notwithstanding that shopkeepers may trade in shops without chairs or display racks and these may be easily removed." 10 In that case the Court of Appeal held that the trial judge was correct in finding that the Defendant had not breached its duty of care to the Plaintiff. In this case the Defendant contended not that it was in breach of its duty of care but that the Plaintiff's failure to keep a proper lookout constituted a failure on his part to take care for his own safety and accordingly he was guilty of contributory negligence. It was in fact submitted that the contributory negligence could be assessed by the court at a percentage as high as 50%. 11 I disagree. In this case as I have already held for the proprietor of a shop to leave an open and unguarded manhole on the floor of his premises at a point where customers are going to pass constituted a foreseeable risk of injury which risk could have been easily obviated by the installation of a barrier. Photographs tendered in evidence as part of the expert report of Dr Neil D. Adams depicts the bottle shop as being typical of many in the Sydney metropolitan area. The shop contained liquor displayed in such a way as to attract attention of customers who were on the premises. In the instant case the Plaintiff deposed (and I accept his evidence) that at the time he was proceeding from the refrigerator to the service counter he was looking at the shelves of the shop to see if there was liquor available suitable for stocking his limousine. This in my view was an activity which the Defendant would hope that the Plaintiff like all its other customers would pursue. The last thing a customer would expect the proprietor to have done would be to leave an open manhole on the floor of the shop at a place where customers would be expected to pass. The Plaintiff was perfectly entitled in my view to look at the liquor displayed in the shop when he was moving about it and not to look carefully at the floor of the shop to see if there were any impediments to his progress around the premises. In these circumstances I am of the view that the Defendant has failed to discharge the onus upon it to establish that the Plaintiff was guilty of contributory negligence and in my view the defence should fail. Accordingly there should be a judgment for the Plaintiff in the matter without any discount for contributory negligence. 12 I turn then to the injuries suffered by the Plaintiff as a consequence of his fall. Following the accident the Plaintiff was taken to St George Hospital where clinical and radiological examinations revealed the following injuries: - 1. A burst fracture of the second lumbar vertebrae 2. Fractures of the processes of the first lumbar vertebrae and the third 3. A fracture of the base of his skull 4. The fracture of his scapular 5. Fracture of the shaft of his clavicle 6. Contusion and haematoma of the lung – this was associated with fractured ribs. 7. An open wound to his shoulder 8. Unspecified open wounds to part of his head, nose, external skin and scalp. 13 Following the accident the Plaintiff was unconscious for a period which was assessed by those who observed him of being less than 30 minutes. This coincides with the evidence the Plaintiff gave in chief. Of course following admission to St George Hospital he was sedated heavily thus the Plaintiff has little recollection of the first few days of his treatment. 14 Of these injuries the burst fracture of the second lumbar vertebrae was assessed as being the most serious. This is not in any way to belittle the seriousness of the Plaintiff's other injuries most of which were serious. In any event Dr Davies, neurosurgeon, undertook spinal surgery of the Plaintiff which consisted of posterolateral spinal fusion with laminectomy at two levels with bone grafts and internal fixation. The Plaintiff's spine was immobilised. 15 That immobilisation was achieved by the use of a device known as a turtle brace. This device which was made of fibreglass is so called because of its design. Effectively it had two sides to it the front and back being held together by straps attached to the sides attached to the two pieces. This device was fitted to the Plaintiff on the 31st January 2000 and he remained in it until approximately the 1st September that year. Not surprisingly the Plaintiff was regarded by all medical practitioners who saw him as being totally unfit for work during that time. 16 Indeed the Plaintiff has not returned to work from the time of the accident to the present. This is not only due (as I find) to the effects of his back injuries but also to other causes including a psychiatric condition of depression. 17 I should add that the physical disability which all medical practitioners agree results from the back injuries he suffered in the fall is despite the surgical treatment provided to him by Dr Davies. There is no suggestion that Dr Davies' surgery was other than skilfully performed and that the disability which the Plaintiff undoubtedly suffered because of his back injuries is to be expected despite the successful surgery engaged in by Dr Davies. 18 The other causes include hearing loss, which I find. I shall review the medical evidence in this regard and matters relating to the head injury which the plaintiff suffered in the fall. 19 In order to understand the effect of the multiple injuries suffered by the Plaintiff in the accident, I believe it is necessary for me to review the Plaintiff's pre and post injury history. The Plaintiff who is now 51 was born in Egypt on 16 August 1951. His family have a considerable history of achievement in that country and also in this one. Two of his brothers are lawyers in Egypt, one a High Court judge and one a solicitor. The third brother practices in this country as a pharmacist as well as conducting a business. His sister, who is still in Egypt, is in the civil service. 20 The Plaintiff himself completed his secondary education and then attended the university in Cairo known as the Eye of the Sun University, where he took a degree in accounting. He was then conscripted into the Egyptian army where he served for some three years eventually being discharged as a commissioned officer. Following his discharge from the army he worked for some two years with the prominent international accounting firm Touche Ross. 21 In September 1979 he migrated to Australia. He undertook English classes and obtained employment doing forming process work with a company known as Tuta Laboratories. There he worked night shift for some six months. At the same time he attended English classes to improve his skills in that language. 22 In 1980 he married his wife. He had known her in Egypt in his earlier life. She had in fact come to this country some years before he arrived. 23 In about November 1980 the Plaintiff commenced work with the STC group performing the duties of a storeman. At that time he also undertook a TAFE course in accountancy with a view to upgrading his accountancy qualifications. Unfortunately he found it was too difficult, in particular he had difficulty comprehending the concepts of the common law and company law which were part of the course. 24 He worked for STC for several years unfortunately suffering a back injury whilst lifting a box of cables from the floor. That caused him to stop working for a period of nearly three years. In the up shot he brought an action against his employer and received a settlement in the sum of $45,000 in 1985. 25 He used the proceeds of that settlement to buy a taxi plate. He then operated taxis employing drivers as well as driving himself, which meant that he was able to keep his taxi on the road for almost 24 hours a day. In 1993 he purchased a second taxi which was driven by drivers he employed. 26 In 1995 he sold the taxi plates and purchased a hire car. Originally he used a 1988 Mercedes Benz in the business but in August 1999 he upgraded that vehicle by acquiring a Holden Statesman sedan which he financed through Holden Finance. It was that car he was driving at the time of the accident. 27 Financial records tendered in evidence indicate that the business was a successful one. 28 While engaged in either the taxi or hire car business the Plaintiff was involved in a number of motor accidents. The unchallenged evidence is that none of those accidents gave rise to an injury to the Plaintiff of any great severity and they play no part in the Plaintiff's present disability. 29 In 1990 the Plaintiff was diagnosed as having a problem with his thyroid gland which resulted in him coming into the care of the late Dr John Segelov, neurosurgeon. Dr Segelov performed a thyroidectomy. The consequence of that operation is that since then the Plaintiff has been required to take the drug Thyroxin on a continuing basis. He also had two operations in the early 1990's to repair hernias he had suffered. However, the consequences of these surgical procedures did not prevent the Plaintiff driving and operating either taxis or hire cars up to the date of the accident the subject of these proceedings. 30 The Plaintiff's marriage to Georgette Hana has been a successful one. Six children have been born from the union. I accept both the Plaintiff and his wife as truthful and reliable witnesses. 31 I now turn to the medical evidence tendered on behalf of the Plaintiff. I have already summarised the early treatment received by the Plaintiff at St George Hospital. Since then he has been seen not only by his treating doctor, Dr Davies, and his general practitioner, Dr Iskander, but by a number of doctors qualified by his solicitors. The history he gave those doctors when seen is consistent with the evidence he gave in these proceedings. 32 On 15 May 2000 Dr Grahame Mahony, orthopaedic specialist, reported as follows:- "Patient has lacerations to the forehead and above the left eye with fracture involving right orbit…sustained an injury to the right ear…had symptoms referable to cervical strain with a occipital headaches referred from the neck. Has a history of multiple fractures to the ribs and a burst fracture at L2 with posterior displacement into the spinal canal and fractures to the transverse processes on the right side from L1 to L3. He has boney contusions to the region of the right SIJ and left hip and numbness of the thighs suggest a degree of tension within the low discs. He is required [sic] operative treatment and laminectomies of L1, L2, and L3 with bone grafting and metal fixation. He has symptoms requiring the opinion of an ENT re dizziness and ear problems." 33 On the same day the prominent Rehabilitation Medicine Physician, Dr Jill Middleton, reported as follows:- "Patient has sustained significant and serious injuries with multiple fractures inevitably associated with soft tissue injury, the most serious being a comminuted fracture at L2 treated with surgical internal fixations. He is permanently unfit for work involving heavy or repetitive lifting, bending, twisting or other movements, jarring or prolonged, unrelieved status posturing of the trunk or limb girdle structures. He is unfit to return to work as a storeman and likely to have significant limitations in his capacity to return to prolonged driving activities. In addition, the history suggests concussive head trauma with significant head injury with the scalp lacerations that resulted in scarring and the current clinical presentation which includes significant impairment of memory and cognitive function." 34 The Clinical Forensic Psychologist, Mr John Taylor, reported following seeing the plaintiff on 29 May 2000 as follows:- "Current level of intellectual functioning is within the low average range. This is somewhat inconsistent with his level of education which one would expect to indicate above average to superior functioning. This suggests a degree of deterioration in cognitive abilities. Neuro-psychological test results indicate some impairment within the area of short-term visual memory functioning. A number of the other tests results are of borderline significance. He has some borderline impairment in abstract reasoning and concept formation. He is presently significantly depressed related to both the pain he is experiencing as well as the deterioration in the quality of his life due to injuries suffered. Some improvement in cognitive impairment is likely over the next 9 to 12 months." 35 Dr Davies, who of course preformed the back surgery already referred to on the Plaintiff, reported to Dr Iskander, the Plaintiff's general practitioner, on 5 September 2000 as follows:- "Patient no longer uses brace, has commenced hydrotherapy which aggravates the pain at times. There is mild tenderness along the wound line and the major symptom is post-traumatic vertigo which he is seeing Drs Stylis and Pohl. X-ray on 05.09.00 shows relatively solid posteriolateral fusion with bridging callus of bone from L1 – L3 and no instrumentation failure. Further soft tissue recovery will occur over the next 12 months and he should continue hydrotherapy for at least another two months and begin a regular swimming program thereafter. He may return to light duties work later in the year, but his ability to work as a limousine driver may be limited due to the need to lift baggage." 36 Dr Stylis, an Ear Nose and throat Surgeon, reported on 26 November 2000 as follows:- "He complains of dizziness especially when his head is turned to the right. Diagnosed a benign positional vertigo thought to be due to some dislodgment of the otoliths in the organ of balance. He complains of headache and pressure in the right ear with whistling tinnitus in addition to pain in the hips, pain in the middle of the back, painful right shoulder and pain and stiffness in the neck. There is mal-occlusion of the teeth and injury could well have caused some damage to the TMJ which is not resolving because of the mal-occlusion. He was trialled on Rivotril and referred to Professor Gibson at RPAH to exclude a fistula or a retrocochlear problem. The dizziness was related to injury to the balance mechanism in the accident, perhaps contributed to by injuries to the neck which could affect the blood flow from the vertebral artery and perhaps other symptoms from the injury to the right jaw joint. The tinnitus and pressure in the right ear is most likely related to the jaw joint. A hearing aid was worth a trial as he may well be missing out on hearing the consonants thus reducing his discrimination for speech." 37 Dr Guirgis, Orthopaedic Surgeon, reported on 12 December 2000 as follows:- "Complains of constant feeling of tightness and stiffness in the sides of the neck. He has suffered a 25% permanent impairment of the neck, 60% permanent impairment of the back and a 10% permanent loss of the right arm and a 15% permanent loss of the left arm, and a 10% loss of the right leg by reason of post-traumatic headaches and vestibular dysfunction following the healing of the right occipital bone bruising to the right parietal bone, post-traumatic mechanical derangement of the cervical area of the spine and residual symptoms related to the right arm and shoulder following the fractures, multiple fractures to the ribs bilaterally with a collapsed right lung, elevation of the right hemidiaphragm and a burst fracture of the body of L2 with a displaced fracture of the right transverse processors of L1-L3. There are also fractures to the spinous process of T12 and L4 and also at the facet joints of L1, L3, and L4 treated by open operation." 38 On the 4 April 2001, Dr Davies reported as follows:- "Wound is well healed and non-tender, there are no abnormal masses, he has diminished sensation on the right L2 dermatome. He needs to progress from hydrotherapy to more aggressive swimming and structured rehabilitation and has been referred to Dr Bowring." 39 Importantly on the 12 April 2001 Dr Friend, Psychiatrist, reported as follows:- "Patient assessed on 02.02.01 and 06.04.01 on reference from Dr Mickhail, GP. Symptoms are consistent with Post Traumatic Stress Disorder and major depression. It is likely that the depression is secondary to the traumatic symptoms. He is suffering irritability, depression and poor concentration closely linked to his physical state. Any improvement in the mental symptoms will be slow and likely to require treatment over several years. If he were able to return to work with few physical symptoms then his mental symptoms would probably improve more rapidly. The accident has had a devastating effect on his life. The prognosis is quite poor." 40 I turn then to the medical reports tendered on behalf of the Defendant. Dr Waldman, an ENT Surgeon, while finding that the Plaintiff had a binaural hearing loss was of the view that that hearing loss was attributable to the Plaintiff's exposure to noise while serving in the Egyptian Army. It was his view that the benign positional dizziness which the Plaintiff had experienced following the accident had been cured by the procedure known as epley manoeuvre which had been carried out by Dr Stanley Stylus. Dr Waldman was of the view that in terms of his specialty of ear, nose and throat the Plaintiff was fit to resume work. Dr Waldman was careful not to make any diagnosis in relation to the Plaintiff's other injuries. 41 Dr Tim Anderson a Consultant Occupational Physician carried out an extensive examination of the Plaintiff. He summarised his findings as follows:- "Mr Hana was seriously injured when he fell through a manhole in January 2000. His main injuries were to the L2 vertebral body, which was literally shattered. He also experienced a lot of rib fractures on the right and a closed head injury. His clinical management included internal fixation and stabilisation of the spinal fracture site. He has achieved quite a good result from this. He continues to have some dysfunction of his vestibular system on the right. Recommendations for his further self-managed rehabilitation program are briefly outlined. This should give him some improvement. Unfortunately at the moment he seems to have lost a lot of self-confidence. He is not fit to return to his previous occupation as a hire car driver and it would seem most unlikely that he ever would be able to return to this. Nevertheless, he does have business skills and these could be used in the further development of such a business or, indeed, a different business. In addition to this he has excellent language skills and could easily (very easily) work as an interpreter. Mr Hana was a friendly and pleasant man. He gave the impression that he was keen to progress ahead although it was fairly obvious at today's assessment that he has lost a lot of confidence, particularly in his own capacity to do anything mostly of a physical nature. Nevertheless, with some advice and guidance he probably would play his reasonable part to try to improve his overall circumstances." 42 The Defendant also relied upon a report from Dr Mark Davies the Plaintiff's treating neurosurgeon of the 20 July 2001. Dr Davies concluded as follows:- "Mr Hana will not be able to return to work as a limousine driver, nor will he be likely to be able to successfully work full time as a taxi driver which was his occupation for ten years prior to this. It is possible however that he may be able to work in a part-time capacity as a taxi driver. The restrictive factor will be his inability to perform repetitive bending, twisting and lifting tasks. He would be advised to not lift objects not greater than 20 kilograms. Mr Hana is fit for full time work in administrative, clerical or supervisory positions. He is also fit to work in a position that requires at most light manual labour with the ability to change positions between a standing and sitting posture regularly. Prognosis and Future Treatment As previously indicated, the fracture has been successfully stabilised by the surgical procedure performed soon after the accident. Walking had improved significantly since the time of my last assessment, at the top of the report in June 2000, and there is no clinical evidence of any symptomatic lumbar spinal canal stenosis. In addition, the L2 neuropathy had resolved to the point where he had only objective numbness on pin prick examination in the thigh. The painful paraesthesiae had resolved. As indicated in my previous report there may be additional stressed placed upon the adjacent segmental levels with a 20% chance in the next two decades of this leading to the requirement for further surgical intervention. This may require an extension of his lumbar laminectomy, pedicle screw internal fixation and fusion. In today's costs this would be similar to this initial procedure. As indicated in my previous letter he had been referred to Dr Gregory Bowring at the Department of Rehabilitation Medicine at St George Hospital. He has referred him to the Commonwealth Rehabilitation Service, suggesting a neuropsychological assessment and MRI of the brain and a structured exercise/rehabilitation programme including swimming and walking. As such he will need access to a heated Olympic style swimming pool. From there this programme would be expected to run for more than one to two years. Subsequently he would be advised to continue swimming, approximately three days a week. This would supplant the need for hydrotherapy and be more beneficial if adhered to. Physiotherapy would be used in only short bursts for any acute exacerbations for back pain, and this is anticipated to be infrequent. I would anticipate Mr Hana would be left with a low grade level of back pain which is not likely to significantly restrict his capacity to work full time in the areas previously mentioned." 43 Finally the Defendant tendered a report from Dr David Bowers who described himself as a Specialist Rehabilitation Physician. He obtained the following history of the Plaintiff's current symptoms:- "Mr Hana complains of ongoing ringing in the ears and dizzy episodes once a week. He has a feeling of pressure in the right ear. He has ongoing low back pain radiating from the sacroiliac joints to the thoracolumbar junction. He has true sciatica. His pain is made worse with sitting for long periods. Coughing and sneezing aggravate the pain suggesting nerve irritation. The pain is decreased by walking, changing position and medications. He has no problem with bladder or bowel suggesting no major disc prolapse. He has numbness over the L3 dermatomes bilaterally. He has burning and allodynia over the buttocks. He has ongoing aches and pains at the occipito-cervical junction and stiffness of the neck. He has aches and pains of the right shoulder particularly when he abducts the right arm or attempts to perform overhead tasks. He has occasional pins and needles in the C8 dermatomes bilaterally. His mood has changed since subject incident in that he is now irritable and does not enjoy business negotiations as he would previously. Occasionally he forgets the name of a friend in the course of conversation, otherwise his short-term memory is reasonable. He is able to go to the shops independently." His report concluded as follows:- "The investigations confirm the above medical problems. Mr Hana's stated disabilities are consistent with all features of the medical case. Attributability I attribute all his complaints to subject incident.