Partridge, Moira Kathleen v Hobart City Council

Court:Full Supreme Court
Docket Number:20/2011
Judge:Crawford CJ, Blow J, Wood J
Judgment Date:27 Jul 2012
Jurisdiction:Tasmania

[2012] TASFC 3

[2010] TASSC 62

SUPREME COURT OF TASMANIA (FULL COURT)

Crawford CJ, Blow and Wood JJ

20/2011

Partridge, Moira Kathleen
and
Hobart City Council
Michael Trezise t/as Trezise Lawyers
Behrakis, Peter
Behrakis, Victoria Ann
Behrakis, Dennis
Behrakis, Maria

National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 ; Redding v Lee (1983) 151 CLR 117, applied.

Muscat v Statewide Industries Pty Ltd [1988] 1 Qd R 637 ; Renehan v Leeuwin Ocean Adventure Foundation Ltd (2006) 17 NTLR 83, followed.

Sorenson v Woolnough [1989] Tas R (NC) 15 ; A32/1989; [1989] TASSC 36; Burbury v Sievers A83/1994; [1994] TASSC 132, overruled.

Aust Dig Damages [52]

Aust Dig Damages [61]

Damages — Measure and remoteness of damages in actions for tort — Measure of damages — Deductibility of specific benefits and amounts — Pensions and superannuation benefits — Disability support pension.

Damages — Particular awards of general damages — Tasmania — Back, knee and hand injuries — General damages $40,000 not set aside as inadequate.

REASONS FOR JUDGMENT
Crawford CJ Blow J Wood J
1

On 17 June 2002 the appellant, Moira Partridge, went to see her solicitor, Michael Trezise, the second respondent to this appeal, at his office in Salamanca Place in Hobart. His office was upstairs, above the premises of the Salamanca Fruit Market. As she was leaving that office, Mrs Partridge fell down some external steps that she was using to descend to ground level. The steps stood on land owned by the Hobart City Council. They were open to the elements. Mr Trezise's office was rented by two service companies from four landlords – Peter Behrakis, Victoria Ann Behrakis, Dennis Behrakis and Maria Behrakis (‘the landlords’). Mrs Partridge sued the council, Mr Trezise, and the landlords for damages for negligence in respect of her injuries. Her action went to trial. She was successful against all defendants. Porter J held that they were all negligent; assessed damages in the sum of $409,019.09; reduced that figure by 20% because of contributory negligence on the part of Mrs Partridge; made further adjustments in relation to workers compensation payments and income tax; and ordered that judgment be entered for Mrs Partridge against all the defendants for $295,350:Partridge v Hobart City Council [2010] TASSC 62.

2

Mrs Partridge has appealed. She contends that the learned trial judge made various errors in the course of assessing her damages, and that the judgment sum should be increased. The council, Mr Trezise, and the landlords have all cross-appealed. Mr Trezise and the landlords contend that the learned trial judge erred in holding that they were negligent, and that Mrs Partridge's fall resulted from their negligence. They contend that her claims against them should have been dismissed. All of the respondents, including the council, contend that the learned trial judge made errors in assessing damages that resulted in the judgment sum being excessive, and that it should be reduced.

3

Most of the grounds of the appeal and cross-appeals involve challenges to findings of fact made by the learned trial judge. The principles relevant to such grounds of appeal have been explained by the High Court in a number of cases, includingJones v Hyde (1989) 63 ALJR 349 at 351 – 352, 85 ALR 23 at 27 – 28; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 – 483; Fox v Percy (2003) 214 CLR 118 at pars[23] – [31]. We do not think it necessary to restate the relevant principles.

The liability of the landlords
4

The landlords contend that the learned trial judge made errors in two respects – in finding that the appellant's fall was caused by her slipping on the steps, and in finding that it was reasonably foreseeable by the landlords that someone would be injured as a result of using the steps when they were wet.

The finding that the appellant slipped
5

The steps were tiled. The front edge of each step was rounded. As the steps were outdoors, they got wet whenever it rained. At the trial, the appellant contended that she slipped on one of the steps when it was wet, after rain. However the respondents contended that all the evidence wasconsistent with her stumbling and losing her footing, without slipping, and that the evidence failed to establish on the balance of probabilities that she had slipped at all.

6

The learned trial judge accepted evidence from a professional consulting engineer, Mr Dohrmann, that there was a high risk of slipping on the steps when they were wet, but a very low risk of slipping when they were dry. He found that the steps were wet at the time of the appellant's fall. He was satisfied on the balance of probabilities that she ‘slipped on the first step as she was descending the stairway, that step being wet with rainwater at the time’: par[99] of his reasons. In making that finding he accepted evidence from the appellant's husband to the effect that she essentially ‘fell flat on her back and slid for a distance’. A paralegal who worked in Mr Trezise's office, Christine Webster, was called as a witness for the appellant at the trial, and gave a somewhat different description of the appellant's movements as she fell.

7

Grounds 6 and 7 in the landlords' notice of cross-appeal relate to the issue as to whether the appellant slipped or not. Those grounds read as follows:

‘6 Having correctly identified (at [95]) the onus on the plaintiff to prove that she slipped as alleged by her, the Learned Trial Judge erred in finding that the probability that she slipped was greater than the possibility that she did not.

7 The Learned Trial Judge erred in his treatment of the evidence of Ms Webster (at [98]) by rejecting her description of the manner in which the plaintiff fell:

  1. (a) notwithstanding that Ms Webster's evidence about that went unchallenged and was not inherently inconsistent with other evidence that the plaintiff came to land on her back on the steps; and

  2. (b) on the basis of an assumption, unsupported by any evidence or any effective challenge to Ms Webster's evidence, that she would have had difficulty appreciating the nature and extent of the plaintiff's forward movement from the position from which she viewed the fall.’

8

The appellant's description of her fall, as it appears in the transcript of her evidence-in-chief, was as follows:

‘… and I just went to proceed down the stairs, and my leading foot when it hit the first step just didn't seem to have any traction, any grip whatsoever, and I committed myself to descending at that point.

Well you'd better tell us what you mean by that…….Well I couldn't – I couldn't reverse. I have a memory of that foot going through the air in front of me, or both feet, and as I'm left-handed, left-hand dominant, I lashed out to grab at something to prevent a fall, but there was no rail there and I smacked the back of my hand against the brick wall that was there. I had a sensation of being airborne and of going past a window. When I landed there was a time when I couldn't feel anything at all. … I was on my back and my left leg was fairly straight but my right leg was a bit skewed.’

9

A little later she said that she stepped off the landing at the top of the stairs, and that her foot connected with the first step below the landing. She said, ‘And to me it was like stepping on ice, there was just no traction at all and my foot just went straight off the step and up into the air.’

10

The appellant's husband gave evidence that he was going down the stairs in front of her. He gave a description of her overtaking him as she fell, and landing in front of him. He said that the first parts of her body that he saw were her feet, and indicated by gestures that they came out horizontally. He said:

‘… her head was at one end but the other end were her feet and she was level in between, although I couldn't see her head then.’

He gave unchallenged evidence that the steps were wet.

11

The only other eye witness to give evidence of the fall was Christine Webster, the paralegal who worked in Mr Trezise's office. She said that she was sitting at the reception desk, in a position where she could see through the front door of the office and out to the stairs. Her description of the fall was as follows:

‘Moira's gone out first, she's gone to the left of the stairs, which has got the sandstone wall on it, she's gone to go down the stairs, she's gone down on either one or two stairs, then I saw her go forwards and I thought, 'Shit, she's fallen', then she – she held out her right – no, her left hand – left hand towards the sandstone wall and then as she went forward and had her hand out then she started going backwards and then as she started going backwards she had her right hand and she had her right hand right behind her – right behind there as if she was just trying to break the fall from falling backwards, and then she went down and the position that I saw her go down on the stairs I could see that she'd – she'd crunched her back on the stairs. So she'd gone directly back onto – onto one of the stairs.’

12

In his reasons, the learned trial judge took into account some evidence that the appellant had had a recent history of dizziness, unsteadiness on her feet, and nausea. He observed that the notes of her general practitioner, Dr Edwards, suggested a diagnosis of labyrinthitis on 9 May 2002, which was less than six weeks before the fall. His Honour observed that the notes did not suggest any treatment. He also took into account some evidence that the appellant suffered a blow to the head at the end of May 2002, and reports of associated giddiness, nausea, ongoing disorientation, and some clumsiness. The appellant was not cross-examined about any of those medical problems. In particular, she was not cross-examined as to what symptoms, if any, she had up to the day of her...

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