The plaintiff brought an action in negligence for damages for personal injuries sustained to her back, knee and hand in a fall as she descended a set of external steps on 17 June 2002.
The first defendant council owned the steps; the second defendant occupied premises to which the steps led, visited by the plaintiff on the day of the accident and on numerous occasions prior; the third defendant landlords owned the building and arranged regular cleaning of the steps. Both the second and third defendants retained the benefit of an easement in relation to the steps.
Director Insurance Litigation
At first instance judgment was awarded in favour of the plaintiff, in the sum of $295,350. This was significantly less than the damages sought by the plaintiff and less than an offer of compromise made by the defendants prior to trial. A finding of 20% contributory negligence against the plaintiff was also less than an offer made by the plaintiff prior to trial. Prior to the hearing on appeal the parties exchanged further offers, which transpired to be less than the damages awarded by the Full Court in the sum of $368,530. The finding on contributory negligence was not appealed.
Salient findings on appeal are as follows:
- The landlords: The trial judge was right to conclude that it was reasonably foreseeable that someone might slip on the stairs when they were wet. The duty of care that the landlords owed to users of the steps required them to undertake, or arrange to be undertaken, an inspection of the steps for the purpose of identifying any risk of injury that reasonably required preventative action. Although they had engaged cleaners for the steps, there was no evidence that any of the landlords had ever seen the steps, received information about their condition or about anyone slipping on the steps. However, this does not mean that the steps presented no foreseeable risk of injury.
- The occupier: Expert evidence had been given that there was a high risk of slipping on the steps when they were wet (although there was a very low risk when they were dry). There was also evidence of others having slipped on the steps previously. It was upheld that a reasonable person in the position of the occupier would have erected an
- appropriate warning sign. If he had done so then it was found more probable than not that the appellant, knowing that it had rained, would have adjusted the way in which she negotiated the steps, and not fallen.
- The Full Court acknowledged the findings made by the trial judge adverse to the appellant’s credibility and the conclusion that she was incapacitated by her injuries, but not to the extent she claimed.
- The Full Court referenced a number of cases over the last 25 years in which Tasmanian Judges have proceeded on the basis that the possible receipt of future social security benefits should be taken into account as a factor favouring the defendants when assessing damages for future loss of earning capacity. The appellant successfully argued that social security payments should be disregarded and the Full Court increased the appellant’s award for economic loss and loss of superannuation accordingly.
The Full Court judgment stands as Tasmanian precedent in respect to accounting for social security benefits in calculating damages. This is the sole basis for the increase in damages awarded. It remains to be seen what the outcome will be with respect to costs in these circumstances. Will complex costs orders made by Porter J be varied? Was it reasonable for the plaintiff to fail to accept the defendants' first offer, which was not bettered at first instance, given relevant factors at the time that offer was made? If the many arguments lost by the plaintiff are set off against those lost by the defendants what will be the outcome? This final step in these proceedings has the potential to significantly impact the end result for the parties.