Liability and quantum – especially whether the plaintiff fell because of water on the floor; duty of care; causation and future economic loss.
The plaintiff was a prisoner who at the time of the incident was on crutches because of surgery to a previously fractured ankle, which had become infected. The plaintiff fell heavily on his hip whilst mobilising on his crutches away from a table he was sitting at in the kitchen area. There was some significant dispute about the presence of water on the floor and how obvious it was. McGill DCJ was to some extent assisted by video surveillance of the incident  and found that the incident occurred because of water being on the floor and the crutches slipping out from underneath the plaintiff.
McGill DCJ applied the principle in New South Wales v Bujdoso (2005) 80 ALJR 236 as to the relevant duty of care for prisoners at :
The position in England is well summarized in Halsbury’s Laws of England:
“The duty on those responsible for one of Her Majesty’s prisons is to take reasonable care for the safety of those who are within, including the prisoners. Actions will lie, for example, where a prisoner sustains injury as a result of the negligence of prison staff; or at the hands of another prisoner in consequence of the negligent supervision of the prison authorities, with greater care and supervision, to the extent that is reasonable and practicable, being required of a prisoner known to be potentially at greater risk than other prisoners; or if negligently put to work in conditions damaging to health; or if inadequately instructed in the use of machinery; or if injured as a result of defective premises.
The prison authorities also owe a duty of care to members of the public, and an action will lie where property is damaged by prisoners which results from negligence on the part of the authorities, but a wide latitude will be allowed the authorities in determining proper ways of dealing with inmates before liability is imposed.”
In applying s.9 of the Civil Liability Act 2003 (CLA), McGill DCJ found the risk was not insignificant and accordingly, it required relevant precautions . His Honour distinguished the usual shopping centre and other public place ‘slip and fall’ cases  – . Crucial in finding that the defendant was required to inspect the floor for such water or contaminants was McGill DCJ’s finding that the content of the duty of care was higher because the plaintiff was on crutches  – . Whilst His Honour found the spillage inconspicuous so that it would not be ordinarily detected, it was nevertheless incumbent on the defendant in this circumstance, because the risk of harm to the plaintiff was greater, to have a system for careful inspections to specifically look for inconspicuous contaminants,  –  & . The dilemma for the defendant was there was no real system for inspections of spillages, other than the usual inspections of prisoners and their activities.
McGill DCJ applied Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem  HCA 48  in respect of the test for causation – sections 11 and 12 of the CLA . In respect of the difficulty in slipping type cases of establishing a causal connection when it is not known when the slippery substance was deposited, McGill DCJ applied Strong v Woolworths Ltd  HCA 5  and determined the difficulty can be resolved by “reference to the relative lengths of time involved” . Applying Strong’s decision McGill DCJ found the reasonable period of time for inspections was every 2 hours and found such (or no system) lacking. On this basis McGill DCJ found factual causation made out and the second limb of legal causation was not applicable and furthermore not argued by the defendant and hence did not negative it.
Contributory negligence was not made out on the basis the plaintiff was found to be looking where he was going and nevertheless did not see the contaminant.
McGill DCJ preferred Dr Pentis to Dr Tuffley in respect of the likely deterioration of the hip in particular. Ultimately, Item 127 applied and an ISV 20 – $20,600.00 was awarded.
As far as lost income having regard to the prospect of obtaining work whilst in prison and modest pay rate an award of $1,200.00 was made.
Appreciably, the more contentious component was future loss of earning capacity having regard to his pre-existing ankle injury, lengthy custodial term and uncertain parole date. His Honour considered it was likely the plaintiff would be released in 2014 and that the relevant period was 10 years. McGill DCJ took judicial notice of the industrial gazette award for painters ($25,000.00 per annum) as contrasted against his practical ability to earn in the order of $80,000.00. Having regard to his substantial other difficulties including his ankle, age and to a lesser degree his criminal convictions, His Honour considered this loss to be in the order of $50,000.00 from which he further discounted the award to $40,000.00 for such considerations as he may not obtain parole and release by 2014.
Brisbane Barrister – David Cormack
Nb: set aside on appeal –