Spackman v Stevens & Anor [2010] QDC 118

The facts were fairly uncontroversial.  The plaintiff was a tenant via her husband of the first defendants. The second defendant was the builder of the decking. Several complaints were made by the tenants in respect of the condition of the decking culminating in a Notice to Remedy Breach some 2 months before the incident. The incident occurred when the decking cracked enough to catch her foot and causing her to twist and wrench her knee.

The controversy centred on what area of the decking was complained about and the nature of the complaint. The second defendant built the decking and also inspected the decking and conducted some repairs.

The claim was framed in negligence. However, it is interesting to note his Honour Robin QC DCJ’s comment that the claim would have been more forcefully made if it was framed in contract and/or breach of statutory duty, in this respect by reference to s.103(2) of the Residential Tenancies Act 1994 (Qld) . The claim was not amended. It seems it came precariously close to being lost:

[19] My mind has fluctuated in respect of the plaintiff’s proving a case in negligence. If the claim had been brought on a statutory basis, as in Gration, liability would have been clearly established. When addresses were completed, I had it in mind that judgment would be for the defendants. The matter was reserved to allow Mr Howe the opportunity to locate and inform the court of a decision pertinent to the damages claim in respect of whether anything could be included for future paid assistance, the practice being that it is convenient for a trial judge to assess the plaintiff’s damages even if the claim fails.

[20] Mr Pope’s response to the barrage of authority excusing owners/occupiers from liability was to rely on the closing paragraph of Wilson J’s reasons in Gration¸ which in my view, did not assist him, being a statement about the Act.

The first defendants case was not assisted by the fact they resided in the dwelling immediately before it was tenanted and were found to be in a position to know about the decking first hand.

His Honour placed much reliance on the expert Mr Hulles and his evidence as to obvious nature of the weakness in the timber around the ‘knots’ in the timber and cracking:

[33] References to cracked boards have a significance that did not become clear until Mr Hulles was in the witness box. Although his name was mentioned in Mr Pope’s opening, it was not opened what his evidence would be. The relevant timber failed, broke or cracked along the line of a knot which traversed the full width of the piece so that, in his opinion, it ought never to have been used. Cracking is a suitable description for what is depicted in Exhibit 9. It is a suitable description for the failure that happened leading to the plaintiff being injured. I accept from Mr Hulles that it was an obvious defect in circumstances where the soundness of the deck in general had been complained of (as the Spackmans say and as Ms O’Garey confirms – as does Mr Stevens’ supposed inspection of the whole deck). I cannot accept Mr Howe’s proposition that there was some onus on the plaintiff to identify the particular defective timber, or even its location within a few boards. Mr Howe’s authorities, which seemed so compelling during his address, relate to defendants who had notice of some particular deficiency in a balcony or deck which the court considered insufficient to constitute notice of some wider problem. In Emery it was considered that an isolated instance of rot in one bearer did not require the owner to have the entire deck thoroughly (and promptly) inspected by a qualified person: it was not considered negligence to fail to be sufficiently alarmed by the finding of a single slightly dropped bearer. In a case said to be Gregory Stewart Pty Ltd v Domira Pty Ltd Mr Black, whose visitor was injured in a balcony collapse gave evidence of its being as “solid as a rock (he saw nothing which caused him to think any closer inspection [of the underside joists] was required [other than what came in his field of vision when negotiating a spiral staircase]).” Short v Barrett [1990] NSWCA 164 emphasised Dr and Mrs Short’s entitlement to assume in the house was “perfectly safe unless and until they actually know it is unsafe or else receive a warning that it may be unsafe”. This is the burden of Mr Howe’s authorities, as set out by him:

(a) Emery & Anor v Foot & Anor[1]

(b) Johnson v Johnson[2]
(c) Baker v Gilbert[3]
(d) Stannus Graham[4]
(e) Short & Anor v Barrett[5]
(f) Australian Safeway Stores Pty Ltd v Zaluzna[6]
(g) Gove v Black[7]
(h) Gregory Stewart Pty Ltd v Domira Pty Ltd[8]
(i) Auluwalia v Robinson[9]

[34] Mr Howe’s supplementary written submissions of 26 February 2010 contain an additional reference bearing on the liability issue, Palmer v Finnegan (2010) QSC 64, a collapsing balcony railing case. Significant in the defendants’ avoidance of liability was a lack of warning. The legal principle applied in such cases (the relevant one here) is the dictum of Deane J in Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 reproduced in the headnote in Zaluzna:

“It is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or both of a special duty qua occupier and a general duty of care was owed. It is necessary to determine only whether, in all the relevant circumstances including the fact of the defendant’s occupation of premises and the manner of the plaintiff’s entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the entrant or to the class of person of which the entrant is a member. The measure of the discharge of the duty is what a reasonable man would do in the circumstances by way of response to the foreseeable risk.”

Conclusion

[38] I think the present circumstances are different. What went wrong here was not attributable to some hidden defect but a defect or weakness which (on Mr Hulles’ evidence) was obvious and something which came foursquare within the scope of the complaints/warnings of the Spackmans. Essentially, they wanted a safe surface to move about on. Deficiencies in the defendants’ inspection in my opinion are established by the supervening accident. Mr Hulles’ evidence is persuasive that the purported inspection missed an obvious source of foreseeable damage to users of the deck to whom the defendants had a duty of care. Unfortunately, the Spackmans’ assessment of the problems was shown to be correct.
[39] My conclusion is that the first defendants are not in the favourable position of the relevant defendants in such circumstances. They were in possession of multiple complaints or warnings, and most recently the Notice to Remedy Breach four months after the initial complaint, two months before the accident. The safety of the decking generally was called into question; it was not for the plaintiff to identify specific problem areas on pain of losing any entitlement to complain if some damage was caused by them. It does not appear that Mr Stevens had any difficulty in obtaining access for himself and Mr James whenever it might have been convenient, notwithstanding the limitations imposed in the Act upon a landlord’s access. The Spackmans’ complaint, of which Stevens was made aware, was about the walking surface of the deck; that is what failed in the accident. The case is unlike one in which a defendant is made aware of a complaint or problem regarding the walking surface but an ensuing accident is attributable to a failure elsewhere, in supporting structures or balustrades, for example. Here, the observations/complaints of “cracking” anticipating and covered the very incident that happened. If the defendants’ case as put to the Spackmans that the deck was inspected and worked on by them about September 2004 before the Notice to Remedy Breach was correct, their situation would be more difficult, as they would be on notice that what they had done was insufficient.
[40] In the circumstances, I do not think the first defendants can be heard to say that they took all reasonable steps to guard against foreseeable risk of injury to users of the deck so far as their liability to the plaintiff is concerned. They brought proceedings for contribution against the second defendant which were very little mentioned at the trial. Mr James filed nothing by way of defence, but it was accepted that he was free to contest the contribution/indemnity aspect. He never really put up any basis for contest. One may speculate that he could have done. Ms Spackman (T 1-27) said Mr James told her “he wasn’t sure how much the owners wanted to replace” – suggestive of Mr Stevens determining what trouble and expense ought to be gone to, rather than Mr James. The court has no basis for a full understanding of arrangements as between the defendants; in the ordinary course, assuming Mr James was the skilled person the first defendants turned to, to ensure that their duty of care towards the Spackmans (plaintiff in particular) was carried out, Mr James let them down. It seems Mr James (looked to as the expert) approved the state of the deck. It is mere speculation whether the Stevens’ failure to paint or seal the deck in accordance with Mr James’ advice had any relevant consequences. It follows that, if the first defendants want it, they ought to have a judgment against him entitling them to a full indemnity for the amount of damages and costs they have to pay to the plaintiff (who has established her entitlement against them in that regard), together with their own costs.

Quantum

In respect of General Damages his Honour was more persuaded by Dr Vertullo than Dr Boys :

[55] Although Dr Boys may be thought to have an advantage, in coming last, I prefer the opinion of Dr Vertullo, who specialises in the knee, who had more to do with the plaintiff, and who considered her situation had resolved when he last saw her. For the exercise of calculating general damages, for purposes of s 62 of the Civil Liability Act 2003, there is no suggestion from any party that the court ought to depart from a strict application of the injury scale of values stated in Schedule 4 of the Civil Liability Regulation, which s 2 requires the court to consider. For the purposes of s 7, I think there is some element of an existing condition (doubtless attributable to playing netball). I accept that, from the plaintiff’s point of view, after surgery in Western Australia, the problem settled down. There is no reason to think she ought to have had a recurrence of long-term problems with her knee but for the incident underlying this proceeding. Mr Howe submits there is an Injury Scale Value (ISV) of 7 under Item 139 in Division 12 of Schedule 4 – moderate knee injury. Mr Pope submitted for 24, at the top of Item 138 serious knee injury.

[57] An assessment of an ISV of 24 would plainly be excessive. On the other hand, the plaintiff had genuine persisting difficulties with instability in the knee which have been a matter of mystification for the various physiotherapists she has seen. Doing the best I can, I regard an ISV of 10 as appropriate. This works out in dollar terms at $9,800 ($5,000 plus $1,200, multiplied by 4).

Past Loss of Income

The plaintiff was in the position of earning more than “she has ever done” :

[46] The plaintiff is in fact earning more than she has ever done. She had work in a Doctor’s surgery in Western Australia which appears to have come to an end on 24 June 2004. She had got back to work once the children were old enough. The family’s move to Queensland appears to have disrupted employment in the West; it was likely to disrupt employment after the move, while the family settled in and suitable employment was found. That Mrs Spackman may have had a mind to work and to increase her hours beyond those worked in Perth does not mean she could have counted on getting the employment she wanted. She felt able to do a full shift by March 2006, but did not start with the Red Cross until late July; her first application to them was unsuccessful. The situation is too uncertain to permit of arithmetic calculation. I think there should be a global allowance (inclusive of interest) of $20,000. This amount takes account of lost superannuation entitlements.

 

Future loss of earnings

[47] So far as future economic loss is concerned a substantial claim is made on the basis of 20 years lost earnings as a Registered Nurse, which was pleaded to bring in an additional $215.00 per week and additional superannuation benefits of $28.00 per week compared with what the plaintiff now earns. It was disappointing to hear from her that in Queensland there is no possibility of a person who is not physically fit gaining the practical experience that is a prerequisite of qualification as a RN. If that is truly the situation, there must be lost to the higher echelon of the nursing profession many who could contribute in spheres not requiring ability to do heavy work or (pertinently to the plaintiff’s situation) ability to have confidence in the stability of one’s knee.
[48] There are academic requirements to be satisfied as well. The court cannot be satisfied that the plaintiff would for a certainty have the opportunity, ability and application to achieve that career change. Mr Howe accepted that there should be some global allowance made; that, I think, should be $40,000.

Griffiths v Kerkemeyer

 

Despite the plaintiff not satisfying a claim for past care pursuant to s.59(1)(c) of the CLA, a claim for future paid care was made:

[58] Apropos the claim for future paid services, Mr Howe referred to Xu v Thurgood [2008] QSC 288 at [45][46]. Ms Spackman’s case is no stronger in this regard than Ms Xu’s. Kriz v King [2006] QCA 351 establishes that if the threshold of s 59 of the Civil Liability Act is not met, there can be no recovery for past or future gratuitous services.

Brisbane Barrister – David Cormack

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