Swindells v Hosking and Anor [2012] QDC 6

Issues: s.59 PIPA, risk of the property on sale, liability (obvious risk) and quantum

Background:

The limitation considerations flowed from the late commencement of proceedings and the ambiguity concerning the first s.59 of the Person Injuries Proceedings Act 2002 (“PIPA”) order extending compliance with the pre-proceedings.

The property was under contract and the defendant argued that the “risk” which passed with the contract, included the injury sustained by the plaintiff.

The plaintiff claimed to have injured his ankle on inspecting the property under contract from the defendant. The injury was stated to have occurred because the saw dust from the saw mill in close proximity covered off-cuts of wood, which the plaintiff did not see and rolled his ankle on.

The injuries which flowed were complicated by the plaintiff’s significant pre-existing health and disabilities.

Dorney QC, DCJ:

s.59 PIPA

His Honour explained the facts giving rise to allowing a second s.59 PIPA application during the trial and it being made as nunc pro tunc, as very unusual.

Chronology –

(a) the Part 1 Notice of Claim given by the plaintiff pursuant to PIPA was accepted as a “complying” Notice of Claim by the defendants, through their then solicitors, by letter dated 24 April 2006 (which was received on 26 April 2006);

(b) on 23 May 2008 Dodds DCJ ordered:

(i) that the plaintiff (then the applicant) have leave to “commence” proceedings pursuant to s 59(2)(b) of PIPA; and

(ii) that such proceedings be stayed pending compliance with the requirements of PIPA;

(c) on 25 June 2010 Robertson DCJ ordered that, pursuant to s 36(5)(a) of PIPA, a compulsory conference be scheduled for 8 July 2010;

(d) that compulsory conference was held on 8 July 2010;

(e) the plaintiff’s Claim and Statement of Claim were filed on 25 August 2010.

 

The order did not stipulate a time of when to commence proceedings. His Honour allowed 6 months by reference to the intent of s.59 as being reasonable, however, even this period fell short of when proceedings were commenced:

[14] But even given a six months time frame, it is clear that the starting of the proceeding on 25 August 2010 is way beyond what the order could, on its terms, properly contemplate. Further, it is difficult, in light of that interpretation, to know what to make of the later order of 25 June 2010, even given the unlikely interpretation that the claimant/plaintiff did have leave, “subsequent to” compliance with the requirements of PIPA, to start the proceeding.

[15] Accordingly, by either path of analysis, the application made during trial for a “further” order pursuant to s 59(2) of PIPA must be understood as an application brought for a second time under the same provision, either required by noncompliance by the claimant/plaintiff with the order of 22 May 2008 or by being of no effect.

His Honour noted there was no decision regarding such a circumstance, but relied on Morrison-Gardiner v Car Choice Pty Ltd [2005] 1 Qd R 378 as authority for allowing an extension after the 3 year limitation period had expired and relying on Chesterman J: “clearly meant to ameliorate the plight of a claimant who is unable to comply with requirements of the Act in time to commence proceedings and who, if justice is to be done, should be given the extension”: at 402 [82].

His Honour at [16] noted the categories cited by Chesterman J: first, that “claims which are allowed to lie dormant for long periods have more of cruelty than of justice”; secondly, a realization the defendant may lose evidence necessary to disprove a stay or claim, notice of which comes very late; and, thirdly, and the “least persuasive reason”, that persons with good causes of action should pursue them “with reasonable diligence”: at 401-402 [79].

On consideration, Dorney QC DCJ found [19] the discretion should lie with the plaintiff “despite the seemingly incredibly long time between May 2008 and August 2010.”

Risk under the contract

The risk issue was easily disposed of by Dorney QC DCJ by reference that it applied to the property and personal injuries. [21]-[32].

Liability

Much was made of the date of the incident, but ultimately it was settled on that it was 24 May 2005 and that there was no other incident before this date. It did however cause His Honour to conclude:

[47] In the absence of any contemporary documentary evidence as to time, the reason that I make this conclusion is: that I take the evidence of Mr Ferguson to show a very vague recollection to the events of that day, particularly noting that his “statement” (read to him in evidence) contained a reference to the plaintiff stepping in a “large hole”, whereas his actual evidence was that there was no such “hole” on the property on the day in question; that I generally found the evidence of the plaintiff to be one of a self-serving kind, ready to reinterpret events in a way which fell favourably towards establishing his case; that the evidence of the female defendant was honestly given, conceding difficulties where they existed; and that the male defendant, while clearly ready to interpret documents to favour his version of events, was generally honest, if not always accurate, in his actual recollections…

His Honour’s assessment of the plaintiff was fatal to his claim.

[59] As earlier indicated, I do not accept that Mr Ferguson was an accurate recounter of what occurred. This is not only because of the inconsistent assertion in his earlier witness statement about the existence of a “large hole” but also because of his inconsistency between the injury sounding “like a loud crack” and his admission, in cross-examination, that the Lucas mobile sawmill was “very loud” and was being used at that time, especially where he was some distance from the plaintiff and that he did not see what happened. It is not consistent that a “large hole” is equivalent to a cavity created by sawdust covering off-cuts, particularly given that Mr Ferguson neither saw the incident nor examined the area later, and given that he expressly denied in his trial evidence that he saw any hole (after doubting that there would really be a hole). To give him his due, he readily conceded that his memory was “not that good, being so far down the track”. Therefore, when Mr Ferguson described the area generally as containing “rubbish and sawdust”, I am unable to discern any assistance on his part as to the depth of that sawdust. More generally, and consistently with what can be detected from Photograph 3 in Exhibit 6, Mr Ferguson stated that there was a fair bit of timber that was in a round shape, which he stated was actually called a burl off the side of the tree, lying around, and that it was all broken up and just mixed in with the rubbish.

His Honour found the facts against the plaintiff as:

[64] I conclude that, on balance, the plaintiff did roll his ankle in an area which was at, or at least not far from, that depicted by the mark that the male defendant made on photograph 3 in Exhibit 6. Assisted in slight part only by that photograph, I accept that what were, essentially, in that area were scattered off-cuts from trees which had been milled, including off-cuts of a small branch size (that might be generally described as a “stick”) which were approximately circular in dimension. I do not accept that the sawdust was of a kind which hid such an off-cut but that, rather, the plaintiff did not direct his attention to the ground immediately in front of him where he was about to walk and rolled his left boot – and therefore the enclosed left ankle – on that “stick” that would have been easily visible to an ordinarily aware person taking the path he did. I accept that the plaintiff was wearing boots which were appropriate for the occasion; but I do not accept that the male defendant gestured with his arm towards the plaintiff and Mr Ferguson.

His Honour reviewed the usual authorities as to duty of care and noted requirement of the purpose of a warning to be given. Dorney QC DCJ then considered the question of “obvious risk” under ss.13, 15 and 16 the Civil Liability Act (“CLA”).

Obvious risk

[81] Nevertheless, the only concern here is with the effect of s 15 of the CLA. Thus, the focus here is more narrow than that which would apply should the full effect of Division 3 of Part 1 of Chapter 2 of the CLA have applied.

[82] The plaintiff in this case objectively (as a reasonable person) would have been aware that he was entering onto a rural property upon which milling of trees had been, and was being, conducted. There was nothing in his subjective unawareness that precluded the risk – identified earlier – from being obvious. The conclusion is not displaced by the risk not being patent or not a matter of common knowledge. It was patent in the sense that it was manifest in its status as a risk and was a matter of common knowledge because it can be taken to be common knowledge that an offcut of the type described would be within that ambit of general community understanding. Furthermore, even though the risk had a low probability of occurring, that is not a statutorily defined negativing feature and the same can be said for any lack of prominence, conspicuousness or physical non-observability (although I have found in this case that it was so physically observable).

[83] Having reached that conclusion, before considering the impact of the common law, I find that s 15(1) of the CLA does apply and that, therefore, the defendants did not owe a duty to the plaintiff to warn of that risk.

[84] To the extent that the common law is inconsistent with s 15(1) of the CLA it is, necessarily, excluded from operation in a case such as here.

His Honour then considered if this were incorrect that the plaintiff failed at common law because of his factual finding that:

[87] Given my finding about the existence of the visibility of the small branch off-cut because of the absence of any covering of sawdust, it is very difficult to discern what the content of such “signage”, or otherwise, should have been. There was no evidence led at trial as to that detail.

Furthermore, he considered the plaintiff contributed a 100% towards his own injury.

Quantum

The plaintiff found no joy in the assessment of damages either.

Despite the lack of medical evidence called by the defendant, his Honour considered the aggravation of the pre-existing knee condition by the severe ligament and avulsion fracture (Dr Cook 15% whole limb and 6% whole person) of the ankle did not provide a basis to uplift the injury and applied an ISV of 8 – $8,600 (item 143).

 

The lost income for both the past and future suffered from the plaintiff having being on the disability pension for a myriad of other health and injuries, together with a casual break of his son’s management of the business, culminating in bankruptcy. On a global basis, referable to a loss of $250 per week not being improbable, but unlikely, his Honour allowed $25,000 for the past and only $40 per week for the future for 3.5 years and discounted to $2,000.

 

Brisbane Barrister – David Cormack

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