District Court New South Wales Medium Neutral Citation: Joanne Denny v Yamba Shores Tavern Pty Ltd T/as Yamba Shores Tavern [2012] NSWDC 240 Hearing dates: 19 November 2012- 22 November 2012 Decision date: 23 November 2012 Before: Murrell SC DCJ Decision: Judgment for the defendant. Catchwords: TORTS- negligence- proof of negligence- weight and credibility of evidence- passenger on courtesy bus- passenger standing- passenger intoxicated- sudden acceleration- wrist injury- economic loss- domestic care Category: Principal judgment Parties: Joanne Denny (plaintiff) Yamba Shores Tavern Pty Ltd (defendant) Representation: David Elliot (plaintiff) William Fitzsimmons (defendant) Gerard Malouf & Partners (plaintiff) Holman Webb Lawyers (defendant) File Number(s): 2010/00376905 Judgment 1The plaintiff alleges that, on 27 February 2009, she was travelling as a standing passenger on the Yamba Shores Tavern courtesy bus. When the bus accelerated suddenly, she fell and fractured her left wrist. The Tavern concedes that, if the plaintiff's allegations are true, then the Tavern was negligent. In the circumstances alleged, the Tavern permitted intoxicated passengers to stand when the bus was not designed to carry standing passengers, and the standing passengers had no warning of the impending lurch. However, the Tavern disputes the plaintiff's allegations. 2The success of the plaintiff's claim depends upon the Court accepting her evidence and that of her husband. They gave evidence to the effect that, on 27 February 2009, they drank for several hours at the Tavern. The plaintiff became moderately intoxicated. They decided to travel home on the Tavern's courtesy bus. Mr Koolloos, a Tavern employee, drove the bus. The bus was full. The plaintiff and her husband were obliged to stand in the aisle, as were four to eight other passengers. There were no handgrips for standing passengers. After dropping the first passenger, the courtesy bus accelerated or jerked forward suddenly, causing the plaintiff to fall backwards. She tried to break the fall with her left (dominant) hand. Mr Koolloos stopped the bus and asked after the plaintiff's welfare. The plaintiff and her husband stated that she was "okay" or "in a bit of pain". The plaintiff sustained a displaced fracture to the left distal radius with probable articular involvement. 3Mr Koolloos gave evidence that he always enforced the Tavern's policy that patrons must be seated when the courtesy bus was moving. If seats were unavailable, patrons were required to wait for a later drop off. On the night in question, the plaintiff was seated towards the rear of the bus. As he stopped the bus to permit the plaintiff and her husband to disembark, his attention was drawn to the rear of the aisle, where the plaintiff had fallen backwards onto her buttocks. Her legs were parted inelegantly. The plaintiff made no complaint of injury. Issues (1)Liability: Was the plaintiff injured in the circumstances that she described? (2)What is the plaintiff's economic loss? (3)What other compensable damage has the plaintiff suffered? Liability 4Mr Smith, the licensee/manager of the Tavern, confirmed that it was Tavern policy that courtesy bus passengers were to be seated when the bus was moving. If the number of passengers exceeded the number of available seats, the extra passengers had to wait for the next bus or take a taxi home. Several Tavern employees were authorised to drive the courtesy bus. 5I accept that the bus seating policy was breached occasionally. Two Tavern patrons gave evidence that, on occasions, a driver permitted passengers to stand. When Ms Marsh, the assistant manager, drove the bus and there were more patrons than seats, she did not allow the excess patrons to stand but she did allow them to sit on the steps or the motor, or to sit three abreast across two seats. However, the evidence of occasional breaches of Tavern policy by drivers who (apart from Ms Marsh) were not identified is of little assistance in relation to the events of 27 February 2009. 6The evidence of Mr Koolloos and Ms Roberts contradicted that of the plaintiff and her husband. Mr Koolloos said that, when he drove the bus, he always adhered to the Tavern policy regarding standing patrons and, on the evening in question, the plaintiff was seated. The plaintiff submitted that Mr Koolloos was an unreliable witness. I found him to be a quiet and nervous witness, but I did not disbelieve him. Ms Roberts, a regular Tavern patron, frequent courtesy bus user and acquaintance of the plaintiff, was a relatively independent witness. She gave her evidence in a straightforward manner. I have no doubt that she gave an honest account of what she recalled. In critical respects, her evidence corroborated that of Mr Koolloos. In her experience, if a bus passenger stood while the bus was in motion, the driver would stop the bus and require the passenger to be seated. Ms Roberts was adamant that, on the night in question, she was a passenger on the courtesy bus, the bus had spare seats and no one was standing in the aisle. 7The plaintiff and her husband asserted that, after the accident, the Tavern installed handles on the back of the courtesy bus seats and erected a "no standing on bus" sign. The plaintiff adduced no photographic evidence substantiating these assertions. Mr Smith, the only defence witness who was asked about these matters, denied that the alleged changes were made. Mr Smith was an apparently credible witness. The plaintiff herself considered him to be a likeable person with whom she had a good relationship. I am not satisfied that the alleged changes were made. 8For the following additional reasons, I am not satisfied that the plaintiff and her husband gave reliable evidence regarding the circumstances in which the plaintiff was injured. 9First, the plaintiff made several relatively contemporaneous statements to the effect that, while intoxicated on the night of 27 February, she fell at home and injured her left wrist, and the plaintiff's husband made one such statement. 10At 9:05 am on 28 February 2009, the plaintiff presented at the MacLean District Hospital and gave the following history: "Presents with painful swollen deformed left wrist after falling up some stairs last night onto outstretched hand. Had a few drinks ..." 11Mr Smith said that, when he asked the plaintiff why her arm was bandaged, she told him that she had broken it when she "fell up the step on the (pergola/ verandah) at home". Some time later, he learned of the allegation regarding the courtesy bus. 12Ms Marsh gave evidence that, when she inquired as to why the plaintiff was wearing a half cast or plaster, the plaintiff told her "I fell off the back porch". 13Mr Koolloos gave evidence that the plaintiff's husband said that the plaintiff had fallen off the back deck on the previous night. 14I accept the evidence of Mr Smith, Ms Marsh and Mr Koolloos as to the statements made by the plaintiff and her husband. The statements were consistent with the history that the plaintiff provided to the Hospital early on 28 February, and they were recorded in handwritten statements made by each witness relatively soon after the incident (inferentially, in mid 2009). The plaintiff asserted that she could not recall whether she had made such statements (although she could recall providing an incorrect history to the Hospital). 15If, as the plaintiff asserts, she did not fall and injure herself at home, then the question arises as to how both the plaintiff and her husband came to provide the same incorrect account of the circumstances leading to the plaintiff's injury. 16A second additional reason for doubting the plaintiff's reliability as a witness is her explanation of why she gave a false history to the Hospital. The plaintiff said that she did so because she was new in Yamba and was embarrassed at the prospect that local people would discover that she had fallen on the courtesy bus. She was embarrassed that she had been "so careless" and that the fall had occurred "in a public place". This begs the questions: How can it be more embarrassing to fall through the fault of a bus driver than it is to fall up stairs through one's own inadvertence? Why would Hospital staff in MacLean inform Yamba residents about the history provided? The plaintiff's explanation lacked credibility. 17Interestingly, Ms Roberts gave evidence that, although she was one of the last passengers to be dropped off on the night of 27 February, she did not observe the plaintiff to fall on the bus. However, about a week later when she saw the plaintiff wearing a sling, the plaintiff told her: "I fell on the bus and hurt myself". If the plaintiff fell in the manner alleged by Mr Koolloos, it is possible that Ms Roberts did not see the incident because it was fleeting. It is also possible that the plaintiff was embarrassed by the incident because, according to Mr Koolloos, she fell in such a way as to display her underwear. 18Third, I doubt the plaintiff's reliability because she repeatedly asserted that it was the wrist injury that had caused her to terminate her employment with the Culburra Bowling Club (see, for example, the Accident Notification Form dated 4 June 2009 and the Motor Accident Personal Injury Claim Form dated 10 June 2009, and statements made to Doctors Prior and Conrad, parts of Exhibit B). On 12 December 2008 the plaintiff had taken long service and holiday leave from her employment with the Culburra Bowling Club. Her leave entitlements extended to 24 March 2009. In December 2008, she had told her general practitioner that she was moving to Yamba and leaving work (Exhibit 10). Her husband was living and working in Yamba. In Term 1 2009, the plaintiff commenced her daughter at a Yamba school. I find that, when the plaintiff moved to Yamba in January 2009, she was strongly committed to resettling there, although she intended to live in Yamba for some time before making a final decision. Consequently, her repeated assertions that it was the incident of 27 February that governed her decision to resettle in Yamba were, at best, significant overstatements. 19Finally, the plaintiff and her husband said that there were witnesses to the fall whom they knew by first name ("Antoinette", "Pete", "Jacquie" and "Bronwyn"). I infer that these witnesses could have given evidence about whether the bus was full and patrons were permitted to stand while the bus was in motion. The Tavern called Ms Roberts ("Jacquie"). The plaintiff failed to explain the absence of the other witnesses. I infer that the witnesses would not have assisted the plaintiff. However, the inference that I draw in this regard is not critical to my decision. 20It is not up to the Tavern to establish the manner in which the plaintiff sustained a left wrist injury. Given the inherent unreliability of the plaintiff's evidence and the fundamental differences between her evidence and apparently credible evidence called by the Tavern, on the balance of probabilities I am not satisfied that the plaintiff was permitted to travel as a standing passenger, or that she sustained her left wrist injury in the manner alleged. Disabilities 21The plaintiff is 47 years old. At the date of the accident, she was 43 years old. 22Between 28 February and 9 March 2009, the plaintiff rested at home. On 12 March 2009 she underwent an open reduction and internal fixation of the distal left radial fracture with a volar plate and screws. She was discharged with her left arm in a three - quarters plaster cast, which she wore for six or eight weeks. 23The plaintiff complains of chronic discomfort in the left wrist, worsened by activity. She now drives an automatic car rather than a manual vehicle. She cannot lift heavy weights. She cannot fully rotate her left wrist. She would like to have the plate and screws removed. The estimated cost of such removal is about $6000. 24In February 2012, Dr Bye found that the range of movement in the plaintiff's left wrist and elbow was restricted. 25Prior to the accident, the plaintiff was a keen bike rider and tennis player. Since the accident, she has been unable to enjoy these activities because they place pressure on her left wrist. 26Commencing in June 2009, the plaintiff had six physiotherapy sessions. Initially, the physiotherapist assessed the strength of the plaintiff's left hand as 50% normal. The plaintiff ceased physiotherapy because of the cost. She would like to resume occasional physiotherapy as she found that it eased her left wrist pain. 27The plaintiff is embarrassed about a 5 - 6 cm scar on the inside of her left wrist. She is concerned that people may think that she has attempted to slit her wrist. She wishes to have plastic surgery to correct the scarring. However, the plaintiff called no evidence as to the cost or likely success of such surgery. 28In 2004, the plaintiff was prescribed medication in relation to a complaint of inability to sleep. She did not appreciate that it was antidepressant medication. In 2006 or 2007, she was prescribed antidepressant medication for "stress". From mid 2007, she was depressed because her mother was very ill. In December 2007, the plaintiff's mother died. The plaintiff continued taking antidepressant medication. She gave evidence that, after the incident, her dose of antidepressant medication increased. She had always been employed, and the enforced rest and inability to pursue normal activities made her feel depressed. Recently, the plaintiff's medication has been changed and her psychological health has improved. However, she continues to experience low self-esteem, low self - confidence, reduced concentration, forgetfulness and a tendency to become frustrated and depressed. She tends to dwell on the accident and its impact on her life. She would like to be able to afford psychological treatment. 29Since February 2009, the plaintiff has experienced two very traumatic incidents. In late 2009, she was assaulted. In April 2010, there was an "incident" at a casino (Exhibit 4). The plaintiff was arrested and detained. She has commenced proceedings against the police and the casino, claiming inter alia that their conduct caused elbow injury and depression. When giving evidence about the assault and the casino incident, the plaintiff was visibly distressed. 30Although the plaintiff's ongoing left wrist problems are relatively mild (discomfort, restricted rotation and inability to lift heavy weights), because they affect her dominant arm, the problems have a significant impact on her lifestyle and work capacity. The plaintiff's depression also impacts on her lifestyle and may have a limited impact on her work capacity. However, little if any of that impact is attributable to the subject accident. The condition is chronic. Any ongoing exacerbation caused by the February incident is insignificant and overshadowed by the traumatic events of late 2009/ early 2010. Economic Loss 31Until 2008, the plaintiff lived on the South Coast of New South Wales. Between 1997 and December 2008, she worked as a permanent part-time bar attendant at the Culburra Bowling Club. Her duties included serving drinks, stocking shelves and servicing gaming machines. As at December 2008, she earned $509 net plus superannuation. 32In 2008, the plaintiff's husband began to work on the mid-North Coast. In December 2008, the plaintiff took long service leave from her employment. In January 2009, she moved to Yamba with her daughter. She wanted to permanently settle there but had not made a final decision to do so. 33On 10 March 2009, the plaintiff resigned from her employment with the Culburra Bowling Club. Between 24 March and 11 December 2009, the plaintiff was unemployed. In early June (prior to the commencement of physiotherapy), the plaintiff's general practitioner found that she was unfit to work for two months (until 4 August 2009). In October 2009, Dr Conrad found that movement of the plaintiff's left wrist was restricted in all directions. 34The plaintiff said that, but for the accident, in early 2009 she would have found full-time bar work in the Yamba area. 35On 11 December 2009, the plaintiff began to work as a casual contract cleaner on a team that serviced holiday apartments. She worked 15 to 18 hours a week. The work hours and requirements were flexible. She was able to cease work when left wrist pain caused discomfort. In September 2012, she stopped working as a cleaner because her wrist "was hurting a lot more" and she wanted to retrain as an aged carer. In addition, she wanted to seek work that was less menial and more personally rewarding than that of a cleaner. The plaintiff's husband said that, when she worked as a cleaner, the plaintiff often complained about her wrist, but the level of complaint has lessened since she stopped working. His evidence in this regard is consistent with medical reports and I accept it. For example, in November 2010, Dr Kendall found that the plaintiff was permanently unsuited for work requiring heavy use of her left hand. He opined that she should not work more than twenty hours a week. 36For the financial years 2009 - 2012, the plaintiff's average net weekly earnings were $275. The average net weekly earnings for a comparable Cullburra Bowling Club employee over that period were $555, and a comparable employee now earns $590 net. 37The plaintiff said that she was capable of undertaking "light duties". In the Yamba area, there was ample employment in the aged care field. She believes that she is capable of undertaking the home care of aged people for 28 to 30 hours per week. 38I accept that, but for the injury to her left wrist, the most likely scenario is that the plaintiff would have sought and found part - time bar work in the Yamba area and would have earned an amount that was comparable to that of a similar employee at the Culburra Bowling Club. I am not satisfied that she would have sought full - time work. She had not worked full - time for many years and she was settling into a new environment. While I am satisfied that bar work was readily available on a part - time basis (there were several clubs and hotels in the area and the plaintiff was a very experienced worker), I am not satisfied that such work was available on a full - time basis (generally, such work tends to be part - time). It is likely that the plaintiff would have continued to work as a bar attendant until retirement. 39It was reasonable for the plaintiff to work as a part - time cleaner from December 2009, and it was reasonable for her to leave that work because it was causing too much discomfort to her left wrist. It is reasonable that she wishes to retrain as an aged care worker. Employment in regional areas is notoriously limited. Bar work is heavy and unsuitable for someone with a significant disability to the dominant arm/wrist. The earnings of an aged care worker are not known. The plaintiff's physical capacity to undertake such work is untested. I consider that the best approach is to allow a cushion for loss of earning capacity and associated loss of superannuation. Domestic Assistance 40The plaintiff claims that she just reaches the threshold of requiring domestic assistance for a period of more than six months from 27 February to late August 2009. 41The plaintiff said that, after the accident, her husband, daughter and neighbours helped her with household activities such as cooking, ironing and mowing the lawn, for an average of an hour a day. Her husband said that, in the period February to November 2009, he assisted for a couple of hours a day. At the time, he was working at Coffs Harbour. Instead of staying overnight at Coffs Harbour, he returned home each night to assist with the plaintiff's daughter. He assisted with the washing and shopping. He continues to do so. 42Given the nature of the plaintiff's injury and Dr Conrad's opinion of 16 October 2009 that, at that stage, the plaintiff needed help with heavier housework, I am satisfied on the balance of probabilities that the threshold is met and I allow this aspect of the claim. Damages 43Had the plaintiff succeeded on liability, I would have awarded damages as follows: Economic Loss $18,324 1/4/09- 10/12/09 (36 weeks x $509) $40,040 11/12/09- 13/09/12 (143 weeks ($555-$275= $280) $5,900 14/09/12- 23/11/12 (10 weeks x $590) $64,264 Superannuation $7,069 ($64,264 x 11%) Future economic loss $100,000 Future out of pocket expenses $11,000 Removal of plate and screws ($6000) Occasional physiotherapy etc($5000) Domestic care $3,588 (6 months x 6 hours per week x 23 hours per hour) $186,090 44I order the plaintiff to pay the defendant's costs. 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. Decision last updated: 24 January 2013