WCRA: ‘trap’ created by variation in millimetres

Covey v State of Queensland [2017] QSC 23 

The plaintiff was injured at work (prior to the 2010 amendments) ascending stairs in fire escape at the Charters Towers Hospital when she stumbled on the nose of the stair and in the process injured her shoulder. The stairs connected the first and second floors of the hospital and while there was a lift, it was common for the stairs to be used.

Both Dr Grigg and Mr Kahler provided expert reports and agreed that there was a variation in the height of the risers of the stairs, but the measurements were different. Following the incident black and yellow nose capping tape was added to the stairs and the experts agreed this would have assisted in where to place your foot.

The defendant argued that the difference in height was a matter of millimetres and no Australian standard applied: Foresti v Ace Ceramics Pty Ltd[47] because it was a fire escape. The defendant argued the plaintiff was not looking properly as she ascended the stairs.

North J accepted the credibility of the plaintiff and the version of the event. His Honour was fortified in this because the step the plaintiff alleged caused her fall was one where both engineers agreed that variation in the riser height was the greatest. His Honour found that this risk was one that was well recognised by engineers. In applying the common law authorities on foreseeability and breach of duty, North J found:

[19] The compelling conclusion based upon the evidence of both Mr Kahler and Dr Grigg is that the flight of stairs was more dangerous for those descending or ascending than it might have been if built or constructed with consistent riser heights and it constituted a danger because of the trap inherent in any inconsistency making it difficult for someone walking up or down to judge the placement of feet. Further that this danger had been recognised decades ago leading to the stipulations found in the various standards and codes. The inference I draw from both engineers is that if, in the years or decades prior to this incident, someone of their experience (or for that matter an architect or a competent building surveyor) had been consulted, they would have drawn this danger to the attention of the employer. There is no evidence the employer, through its servants or agents, turned its mind to the safety of the stairway or sought advice.

[20] Measures designed to reduce the risk crated by the variation in riser height were available, not expensive and not inconvenient. These include the non-skid strips subsequently placed on the noses or ridges of the steps. This measure would have assisted with the accurate judgment of where to place feet when ascending or descending. Another measure available is the capping of the steps to make the height of the risers uniform. I accept the evidence of both engineers about this measure. While it would not eliminate the inherent risk of a slip or fall when on the stairway, one that is known because of the nature of stairs, it would have eliminated the risk of a trip, stumble or fall as a result of the trap caused by riser height variation. Further, the evidence is that this measure was not expensive and there is no suggestion the implementation would have been unduly burdensome.

[21] The danger I have been discussing was, to some extent aggravated in the circumstances by the lighting. I do accept that there is no evidence the lighting available did not comply with relevant standards. The engineers’ evidence is that at the time of their inspections the lighting did comply with standards. But I do accept that by that time it was noticeably brighter than at the time of the incident. I do not find that at that time the available illumination was so poor as to itself constituted a danger rather the evidence of both the plaintiff and Ms Guinane persuades me that it could have been brighter (and presumably without much expense or inconvenience) thus assisting a user to make an accurate judgment about the placement of feet.

[22] The plaintiff had used the stairway before. Ms Guinane used it. It is likely other employees did. There is no evidence the employer prohibited its use by employees or warned of any risk if using it. It is likely the employer (being those persons in authority and management) knew that employees used the stairway regularly. The evidence of the 10,000 step campaign and the distribution of pedometers is evidence of changing social standards and increasing awareness in the community, at workplaces and in government of the health benefits in walking and exercise. An attentive employer would have known not only that the stairway had and was being used by employees but that its use might increase.

[23] There is no evidence of any accident on the stairwell before the incident the plaintiff complains of. Nor is there evidence of any complaints to the employer concerning the stairwell before this incident. The frequency of use and the absence of accidents can, in certain circumstances speak eloquently for the safety of a stairway[53] but this is not such a case. The evidence here is that there was a danger latent in the stairways. So the question becomes, in light of High Court authority quoted above, what should have been done by the employer acting reasonably albeit in the absence of any accident or complaint before the plaintiff’s injury? This inquiry and the related inquiry of breach must be judged prospectively and not simply retrospectively.[54]

[24] Here the plaintiff has not persuaded me that any of the codes or standards referred to in reports applied to the subject stairway. In this respect I follow Foresti v Ace Ceramics Pty Ltd[55] but note the approach of Dutney J in Campbell v CSR Ltd & Anor[56] where notwithstanding reservations concerning the applicability of codes or standards, his Honour’s approach was guided by the authorities bearing upon the liability of the employer.[57]

[25] The risk of a fall or stumble on the stairs was foreseeable and it was the obligation of the defendant as employer to “establish, maintain and enforce” a safe place at work as part of the system of work. One of the responsibilities was accident prevention. In this context the standard of reasonable care may change “with changing ideas of justice and increasing concern with safety in the community”. The routine ascent of a flight of stairs at the workplace which has been used without incident in the past can be the occasion of thoughtlessness, inadvertence, carelessness, inattention or misjudgement. In my view well before 31 May 2010 an employer in the position of this defendant was obliged as part of its duty of care to employees to “turn its mind” to the safety of the stairway being used by its employees. An inspection by an intelligent layman would have suggested the installation of the strips at the nose of the stairs and good lighting at the very least. But the exercise of care in this case would have suggested that the stairway be examined by a competent expert, the risk of falls on stairs being obvious, and in the absence of any prior examination. If this had been done by a competent, skilled expert, the defects in the stairway I have mentioned would, in all likelihood, have been identified and could without great expense been rectified. In all these circumstances including the known use of the stairway, the likelihood of its use increasing with time and in the absence of any evidence the employer turned its mind to the safety of the stairway, I find that the defendant breached the duty of care it owed the plaintiff.

[26] The duty owed to the plaintiff and other employees to ensure the safety of the stairway to the extent reasonably possible, required the capping of the stairs in the stairwell so that dimensional inconsistency was minimised in accordance with, as Dr Grigg said, “recommended practice”. It also required the installation of the strips on the nose of the stairs and lighting of the brightness observed by the engineers. Consistent with my findings earlier[58] I find that the plaintiff’s trip and stumble was caused by the defendant’s breach of duty and its failure to identify and remedy the trap created by the variation in riser height. This finding, to my mind is an inference reasonably open on the evidence particularly in light of the evidence of Mr Kahler and Dr Grigg and one open without impermissibly considering the matter with simplistic “post hoc” reasoning.[59]

North J declined to find the plaintiff contributed to her injuries because the variation caused a “trap” and if anything, her conduct amounted to “inadvertence, inattention or misjudgement” not negligence.

Damages:

The plaintiff was 27 years of age when injured and at trial 32 years. She was employed as a physiotherapist. The plaintiff endeavoured to continue to work as a physiotherapist after the injury and surgery to relieve her ‘frozen shoulder, but ultimately ceased work. The plaintiff developed a psychiatric condition as well. The plaintiff had a pre-existing claim for a back injury when working for Coles and secondary psychiatric claim.

While North J expressed some caution in relation to evidence of the plaintiff because of her failure to give a full and frank answer to Dr Ng in relation to her past psychiatric condition, his Honour was reassured by the preponderance of medical evidence in support of her shoulder injury, the pain associated with it and development of headaches.  General damages of $90,000 was awarded.

North J accepted the plaintiff was an intelligent and resourceful person who had demonstrated a capacity to obtain an Honours degree in law. His Honour also took into account the plaintiff may have transitioned into other areas within the health sector in later life. Having regard to these matters, North J nevertheless allowed a global award of $650,000.00 for future loss of earning capacity. Superannuation for the past and future was allowed at the rate paid by the plaintiff’s employer of 12.75%.

The defendant conceded the plaintiff’s entitlement to gratuitous care. An allowance of $32/hour was made. Future care was discounted by 20% having regard to increased likelihood it would be required because of the plaintiff’s prior back injury.

In summary:

General damages for pain & suffering $90,000.00

Interest $5,400.00

Special damages $106,132.84

Interest $19,084.63

Past loss of earnings $375,000.00

Interest $90,000.00

Past superannuation loss $47,812.50

Interest $16,136.67

Future loss of earnings $650,000.00

Future superannuation loss $82,875.00

Past care and assistance $38,406.49

Interest $12,962.19

Future care and assistance $110,000.00

Future special damages $83,500.00

Fox v Word $30,966.00

Subtotal $1,758,276.32

Less Refund to Work Cover Queensland $150,690.12

TOTAL $1,607,586.20

David Cormack – Brisbane Barrister & Mediator

 

 

 

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