Slip & fall on wet steps at a resort, consortium & claim by consultancy company

Corkery & Ors v Kingfisher Bay Resort Village Pty Ltd & Anor [2010] QSC 161

The plaintiff Mr Corkery was injured before the introduction of the Personal Injuries Procedure Act 2002 (Qld) and Civil Liability Act 2003 (Qld) when he slipped downstairs on the outside of his villa at the defendant’s resort, whilst it was raining.

The second plaintiff’s claim was in consortium. The third plaintiff was the company through which the plaintiff conducted his consultancy business and claimed economic loss.

There was as expected some debate as to the precise nature of the incident and its variations in the claim form and in the evidence given. Liability was further compounded by being a case of slipping on stairs in circumstances when it was raining. The plaintiff’s evidence which was ultimately accepted was he took some care going down the stairs but nevertheless slipped.

The defendant at paragraph 29 drew attention to the fact that nobody who was present at the time of the accident said that the stairs were slippery, and that it would have been simple to call evidence to that effect if it were true, and relied on “severe criticism” by the New South Wales Court of Appeal in Makita (Australia) Pty Ltd v Sprowles.[2] In that case, the plaintiff had fallen down some stairs at a workplace, and sued her employer in negligence. The trial judge adopted the opinion of an expert that the steps were slippery. That finding was overturned on appeal.

His Honour Lyons J responded:

[36] In Makita’s case, there was an abundance of evidence of repeated, incident-free use of the stairs, by the plaintiff and at least one other witness. There is no evidence in the present case of any significant use of the stairs in wet weather (or otherwise) by anyone. No attempt was made to show that the unit was regularly occupied; or the frequency with which guests stayed at the Resort in wet weather. It is likely that Resort staff serviced the unit, but no one was called to establish that they did so, in wet conditions, without incident; and in doing so, how frequently they used the stairs. In Makita, Priestley JA stated that for the stairs to be slippery in a sense relevant to that case, their condition would have to be such that “persons walking on them … with ordinary care, will from time to time, slip.”[7] There was an abundance of evidence to establish the contrary in Makita. That is not true in the present case. Indeed, it is not a test of universal application.[8]

[39] In addition, and unlike in Makita’s case, there is a not inconsiderable body of evidence relating to Mr Corkery’s fall. There was no dispute about the way in which Mr Corkery initially went down the stairs, prior to the fall. It is apparent that he was in the course of going down the steps, one at a time: that is to say, he placed one foot on a tread, then the other; and then commenced to move to the next tread.[12] Such a manner of moving suggests considerable caution, and Mr Corkery’s explanation for it was that “everywhere was wet, you take a bit of caution”. It seems to me that if a person was proceeding down stairs in that fashion, and that person fell in the manner described by Mr Corkery and Mark, the most likely explanation is that the stairs were slippery when wet.

His Honour considered the evidence and ultimately concluded the defendant did not lead evidence as to the state of the steps at the time or their change in condition and coupled with the limited evidence of Mr Armbruster’s observations in his report, allowed a conclusion the steps were slippery when wet.

As to negligence, it was a brief consideration in favour of the plaintiff:

[54] There can be little doubt that the defendants owed a duty of care to Mr Corkery. Its content was not explored in submissions. The duty may be said to be a duty to make the premises as safe for the purposes for which they are let as reasonable care and skill on the part of anyone can make them.[17] Alternatively, the defendants may have been under a duty to take reasonable care to avoid the risk of injury.[18] There will be cases where the difference in formulation does not matter.[19]

[61] Once Mr Armbruster’s evidence is accepted, and it is accepted that the stairs were slippery when wet, it is not difficult to conclude that Mr Corkery’s injuries were caused by the negligence of the defendants. The condition of the stairs suggests a lack of maintenance, in respect of a matter intended to prevent or reduce the risk of accidents. Their condition was apparent on visual inspection. While the probability of an accident with serious consequences may not be particularly high, it is nevertheless reasonably foreseeable that such an accident might occur. The stairs had been treated in the past in a way designed to ensure that they were not slippery. It seems likely that no extraordinary measure was required to reinstate them. The defendants have not attempted to show that they took reasonable steps to maintain the stairs in a safe condition. It is likely that, had they been maintained, the risk of falling would have been considerably reduced, and Mr Corkery’s accident would not have occurred.

Similarly, contributory negligence was easily disposed of:

[67] It will be recalled that the evidence established the manner in which Mr Corkery was descending the stairs. In my view, it is clear that he was doing so cautiously. He was descending the stairs, one at a time, placing both feet on a tread before moving one foot to the next tread. The allegation made on behalf of the defendants, therefore, is that he failed to take reasonable care by not taking the additional precaution of holding onto the rail. In my view, the defendants have failed to establish that the reasonable standard of conduct of a person in Mr Corkery’s position, taking care to prevent a fall, would require him to do more than he did.

Damages

Generals

[75] In September 2003, Dr Bodel expressed the view that Mr Corkery had a 5% overall impairment relating to the function of his neck; and a 15% overall impairment relating to the function in his back, of which 12% was a result of the accident. Another orthopaedic surgeon, Dr Meachin, assessed a 12% impairment of the back of which 8% was attributable to the accident. In August 2006, Dr Bodel assessed, under the AMA Guides, a 6% whole person impairment as a result of the injury to Mr Corkery’s back; and a 0% whole person impairment resulting from each of the shoulder injury and the injury to the cervical spine. He subsequently explained the difference between his assessments on the basis that the August 2006 assessment was based solely on the AMA Guides; whereas his earlier assessment related to functional impairment. The condition of Mr Corkery’s back had not changed between the two assessments.

[78] In the present case the plaintiff has plainly suffered a significant back injury, with high levels of pain initially. As will be discussed more fully, he has been unable to continue in one area of his profession, an area in which he seemed to enjoy working. He has ongoing problems with his back, and I am conscious of the effort he makes to manage them. In addition, he had a shoulder injury which may have well been a fractured shoulder, from which he seems to have recovered well. He also has problems associated with erectile dysfunction, and incontinence. I am conscious that there is a small degree of degenerative change present in Mr Corkery’s back, but there has been no suggestion that it has or would have become symptomatic, had the accident not occurred. Under the circumstances, it seems to me that an award of $60,000 for pain suffering and loss of amenities is appropriate. Interest on $30,000 for 8.3 years at 2% amounts to $4,980, which I award.

Economic Loss

 

[79] From the time of the accident Mr Corkery continued to be employed and paid by RW Corkery. There is no reason to think that the situation will not continue, for the balance of Mr Corkery’s working life. Nor is there any reason to think that the company will not continue to be successful. The medical evidence does not suggest a real risk that Mr Corkery’s injuries may lead to some deterioration of his physical condition, with some risk affecting his future employability. I am conscious that there are some tasks that he can no longer do, but in my view, the evidence demonstrates that this has had no significant effect on his personal capacity to earn income. It is conceivable that the availability of work in the area in which Mr Corkery continues to be employed (Environmental Investigation) will contract; and that the availability of work in the area where he can no longer work (Geological Investigation) will expand. However, there is no evidence to indicate that this would happen, at least to an extent which would directly affect Mr Corkery’s personal income, and it seems to me to be rather speculative.

[80] Accordingly, I do not award an amount to Mr Corkery for economic loss, past or the future. It follows that no amount is awarded in respect of superannuation.

 

Past care

 

[86] In all, Mr Corkery claims a total of $19,219.75 including the initial assistance. The defendant submits that the total should be a figure of $12,500. As a broad assessment, I would allow the sum of $15,000, including the amount previously referred to for the period up to Mr Corkery’s return to the family home in Orange. For this and a number of other instances where an allowance is to be made for interest, I have had the benefit of calculations agreed to by Counsel for the parties. The result of those calculations is that on the sum of $15,000, interest calculated at 5% for 8.3 years amounts to $6,225.

Future Care

[88] I accept that there is some ongoing restriction on Mr Corkery’s ability to do home cleaning and maintenance. I also accept that there is some restriction on his ability to do shopping. The effect of the injury on his capacity to drive is likely to be limited to longer trips, which occur less frequently. All in all, it seems to me that an allowance based on the need for assistance for about two hours per week is not unreasonable. By reference to the calculations provided on behalf of Mr Corkery, I assess this amount at $35,000.

 

Mrs Corkery’s claim

[95] Mrs Corkery claims damages for loss of consortium. No recent authority has been identified which would be of significant assistance in assessing the amount of this claim. In McDonnell & Anor v Mount Sugarloaf Forest Pty Ltd & Ors[25] the judgment records that the parties agreed that an amount of $25,000 should be allowed for loss of consortium, but the basis for that amount is not identified. In Lebon & Lebon v Lake Placid Resort Pty Ltd & Ors[26] an amount of $4,000 was allowed where a spouse had suffered incomplete tetraplega. However, the parties separated a little under seven years after the accident. In Martin v Nursing Staff Pty Ltd[27] an amount of $15,000 was awarded under this head, where the impacts were more significant than in the present case, though some improvement was anticipated on the conclusion of litigation.

[96] There is no evidence to suggest that Mr and Mrs Corkery would not continue to be married for many years; rather, the evidence suggests that the Corkery family is a close one. I do, however, accept the evidence of Mrs Corkery about the changes in the marital relationship after the accident.

[97] It seems to me appropriate to allow an amount of $12,000 for this claim. In respect of a past component of $6,000, the agreed calculation results in the sum of $996 for interest.

RW Corkery’s claim

[98] This claim is based on economic loss said to result from the injuries suffered by Mr Corkery. Four components of the claim have been identified: loss resulting from the discontinuance of geological work; loss of other work which it is alleged would have followed from the undertaking of geological work (flow-on work); costs of engaging assistants for Mr Corkery; and losses suffered while Mr Corkery was unable to work. While some parts of the claim are relatively uncontentious, there are major differences between the parties about much of this claim.

[107] Net profits have also increased. Thus in 2001, there was a loss of $65,286. In 2004, there was a profit of $36,702. In 2007, the net profit was $275,134. The picture these figures presents, however, is clouded by the fact that they are influenced by wages paid to Mr and Mrs Corkery, and superannuation contributions made on their behalf. Nevertheless, it is clear that the business of the company has become increasingly successful.

[108] Despite this, RW Corkery claims loss related to the fact that it has had to discontinue geological work, as a result of Mr Corkery’s injury. Its case, in essence, is that it has demonstrated that so far as environmental work is concerned, environmental consultants can be employed to perform work which the company is able to attract; whereas for geological work, that has not been so. The result is that the geological work has been lost; whereas if Mr Corkery had not been injured, he could have continued to do that work, and the environmental work which he now does in place of the geological work, could have been performed by an employed environmental consultant.

[109] In principle, I consider this approach to be correct. The evidence clearly demonstrates that an attempt was made to continue with geological work, employing a person qualified in this area, at the company’s own expense; but that that was unsuccessful. It would seem that Mr Corkery’s professional reputation in this area is particularly significant, and that clients were not prepared to retain the company unless the work was performed by him. On the other hand, the increase in the number of environmental consultants, and the continued growth in its profitability, demonstrate that this was not true in relation to the environmental work. There is, accordingly, a real reason to think that Mr Corkery’s injury has deprived RW Corkery of the opportunity to earn additional income from geological work. It does not follow that this element of its claim should be allowed in full.

[124] I am inclined to the view that Mr McDonald’s approach to the amount to be deducted for the cost of staff is likely to be correct, unless it can be demonstrated that some other person (such as someone providing some office support) would have been engaged in assisting him in this work, for whom no fee would have been charged. There was no suggestion that that would be the case. Mr Green’s calculation appears to include all staff other than Mr Corkery, regardless of whether, or to what extent, clients were charged for the hours for which they worked. It was the practice of RW Corkery to charge an hourly rate for the work of both professional and non-professional staff on individual projects. It seems to me that there is a real prospect that the ratio of wages paid to staff to the fees they earned might vary significantly from one staff member to another. Overall, it seems to me that Mr McDonald’s approach is to be preferred.

[125] Mr McDonald has calculated the loss to RW Corkery associated with the discontinuance of geological work to be $250,914 up to 30 June 2008. It seems to me to be appropriate, in view of the time which has passed since then, to calculate past loss up to the present, based on his figures. I would therefore allow an additional amount of $135,000 for the additional period of almost two years, resulting in a total loss calculated in accordance with Mr McDonald’s approach of $386,000.

[126] I have previously indicated the reasons why that figure may need to be reduced. Taking a broad approach to this question, it seems to me an appropriate amount to allow for past loss of this character as $250,000.

[127] This loss dates from 1 July 2004. The agreed calculation for interest on $250,000, at the rate of 2.875% for 6 years, is $43,125.

[128] For the future, I again start with Mr McDonald’s calculation. The period over which this loss should be allowed in the future should be reduced by approximately two years. On that basis, it seems that the total calculated by Mr McDonald should be reduced by approximately $94,000, resulting in an adjusted calculation of the net present value of that loss of approximately $380,000. Making a similar adjustment for the facts mentioned previously, I would allow $240,000 for this future loss.

[129] RW Corkery also makes a claim for loss of what is described as flow-on work, said to result from the fact that RW Corkery did not continue to undertake geological work after 30 June 2004.

[130] I have previously referred to Mr Corkery’s evidence about the significance of this type of work to the company. His evidence was supported by that of Mrs Corkery, who had been the business manager of a company for a period approaching 25 years. She also produced a document, included as an appendix to a report of Mr McDonald dated 9 September 2009, which gave information about the significance of this work to the company, particularly in relation to its capacity to lead to later engagements for other work.

[131] The history of the company’s activities, apparent from the evidence given by Mr and Mrs Corkery, tends to support the view that geological work has been important in generating other work. The fact that the company was prepared to attempt to continue the work after Mr Corkery’s injury, by engaging an assistant for whose time clients were not charged, and by attempting to have another geologist perform the work in place of Mr Corkery, in my view provides some objective support for the evidence given by Mr and Mrs Corkery. I therefore accept that this work, had it been continued, would have been likely to lead to the engagement of the company for other work. However, I am conscious that these benefits have not been entirely lost. The company has been able to subcontract work of this kind to others on some occasions, though the outcome has not always been satisfactory from the company’s point of view.

[132] The document prepared by Mrs Corkery identifies a number of instances where an initial engagement to undertake geological work led to a number of other engagements; and one where Mr Corkery’s inability to perform the work resulted in a very significant reduction in the fees generated by the company (Project 441).

[133] It appears from Mr McDonald’s report that his calculation of the amount to be attributed to this claim is based upon an estimate by Mrs Corkery of the value of this loss from 1 July 2004 until 2017 in the sum of $250,000. Mrs Corkery’s evidence was that the figure of $250,000 was simply the amount of gross fees lost in relation to one not particularly large project over a period through to 2017, being a figure which she considers she would be comfortable to claim as indicative of the loss suffered by the company.

[134] The submission made on behalf of the defendants was that, in effect, the company has been able to perform other work, in lieu of any lost flow-on work.

[135] In my view, at least in one instance, the loss of such work was identified in Mrs Corkery’s evidence. There is likely to have been a loss of net profits to the company as the result of some instances of the loss of such work. I am also conscious that such losses can occur entirely without the knowledge of the party suffering the loss. In those circumstances, I propose simply to make a global award of $50,000, of which I will attribute $20,000 to past loss. The agreed calculation of interest on this amount (at 2.875%, for 8.3 years) is $4,772.50.

[136] RW Corkery incurred costs of providing assistance to Mr Corkery during the period when he attempted to continue to undertake geological work. It subsequently made available one of the employed staff to assist Mr Corkery in his environmental work, on a much more limited basis. The defendants submit that these claims should not be allowed to any significant extent, because RW Corkery failed to prove the extent to which staff were engaged in these tasks.

[137] Mr Corkery’s evidence demonstrates that, in the early period after the accident, assistance was provided to Mr Corkery on average three days per week, by a person employed fulltime. This rather suggests that an allowance was made for time spent by that employee doing other work.

[138] For another employee, Mr Cooper, it would seem that the full amount of his wages for the period of employment has been included in the calculation, though other work was done. For Mr Hollamby, the claim seems limited to relatively small amounts, consistent with it being limited to times assisting Mr Corkery in a capacity for which fees were not charged. The claim includes an amount for an employee who had resigned, but who agreed to stay for an extra week if additional expenses were paid for her.

[139] This claim is, in total $108,590. The calculation of this amount by Mr McDonald was for the period to 30 June 2008. To allow for the time which has elapsed since then, it seems to me appropriate to add another $7,000. To some extent, the criticism made of the claim on behalf of the defendants has some justification. I therefore propose to allow an amount of $100,000 for past loss of this kind.

[140] The most significant part of this claim was incurred prior to 30 June 2004. I therefore propose to award interest on this amount for a period of six years. The agreed calculation of interest on this amount for this period, at a rate of 5.75% (the 10 year Treasury Bond rate at 1 April 2010) is $34,500.

[141] There is a claim for future expenses of this kind, based on the need for assistance for Mr Corkery one day a month in performing environmental work. Again, on behalf of the defendants, it is submitted that the claim is likely to be significantly overstated, and that there is no basis to assess the loss. It seems to me that an attempt was made by witnesses called on behalf of the plaintiff, particularly Mr Corkery, to assess the extent to which this will occur. The amount claimed which was calculated by Mr McDonald from 1 July 2008 until Mr Corkery would turn 65. It seems to me that this should be reduced, as a calculation of the present value of a future loss, by about $4,500, resulting in an adjusted calculation of this loss of about $18,000. Because some allowance should be made for contingencies, I would award the sum of $15,000 under this head.

[142] The final claim made on behalf of RW Corkery is a claim in respect of the time immediately following the accident, when Mr Corkery was not able to perform any work.

[143] The amount claimed initially was $41,418. It was calculated by reference to an average number of hours worked per week by Mr Corkery, and his then current charge out rate. As initially calculated, the amount was $41,418.

[144] There are a number of difficulties with this claim. First, it became apparent that the claim should have been made for a period of five weeks, rather than six weeks. That resulted in a reduction in the calculation to $34,515.

[145] The principal attack made upon this claim on behalf of the defendants was that, when he returned to work, Mr Corkery worked extra hours, to make up for time lost. In other words, there was no loss because Mr Corkery simply did the work at a later point in time.

[146] There is some substance in the submission made on behalf of the defendants. Nevertheless, it does not seem to me that the claim should be disallowed in full for this reason. It would logically follow that, had Mr Corkery not been injured, he would have had time after March 2002, in which to perform additional work and generate additional fees for the company, which in fact was spent catching up for the time when he did not work immediately after the accident.

[147] I also treat the calculation advanced with a little caution because it reflects a number of hours charged per month which is some what higher than the average in the years 2001, 2002 and 2003 (as shown in exhibit 18).

[148] Taking these factors into account, it seems to me appropriate to award a sum of $20,000 for this loss; and to allow interest on it for a period of eight years. The agreed calculation, at the rate of 5.75%, results in interest of $9,200.

Summary of damages awarded

Mr Corkery

General damages $60,000
Interest $4,980
Past expenses $22,000
Interest $3,746.41
Past care $15,000
Interest $6,225
Future care $35,000
Future pharmaceutical expenses $543.00
Total $147,494.41

Mrs Corkery

Damages $12,000
Interest $996
Total $12,996

RW Corkery

Past loss of income for geological work $250,000
Interest $43,125
Future loss of income for geological work $240,000
Loss of flow on work $50,000
Interest $4,772.50
Past additional wages $100,000
Interest $34,500
Future additional wages $15,000
Other lost income $20,000
Interest $9,200
Total $766,597.50

 

 

Brisbane Barrister – David Cormack

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