Insurance Litigation – Professional Indemnity & Liability: News and Commentaries: Edition 4

This edition includes:

If you have any queries or would like further information regarding this edition, please contact:

Mat Wilkins
Joint Managing Partner
M: 0419 106 417
E: mwilkins@pageseager.com.au

Bridget Wall
Senior Associate
T: (03) 6235 5187
E: bwall@pageseager.com.au
 

The grape cause of falls

(Click here to view the case)

On 14 May 2012, June Grimshaw (Grimshaw) slipped on a grape adjacent to the grape display whilst working at Woolworths (Woolworths) injuring her back. She brought an action in negligence for damages. The trial judge ordered Woolworths to pay Grimshaw $491,037.26 together with costs.

Woolworths appealed on the following ground that the trial judge erred in:

  • Credibility: Grimshaw was reliable and credible.
  • Liability: Admitting expert engineering evidence, finding that mats should have been placed adjacent to the grape counter and that it would have prevented Grimshaw’s fall and in applying Wyong Shire Council v Shirt 1.
  • Quantum: Grimshaw has failed to mitigate her loss and in applying Todorovic v Waller 2.
  • Contributory Negligence: Grimshaw failed to keep a proper look out.

Court of Appeal’s Decision

McMurdo P delivered the Queensland Court of Appeal’s (Court) judgment dismissing all of Woolworths’ grounds of appeal, bar one, with Applegarth and Flanagan JJ agreeing.

The Court did not accept Woolworths’ argument that the evidence of an expert engineer, Mr Kahler, should not be accepted because his opinion could not be independently verified for accuracy. Mr Kahler had not undertaken a slip test or taken measurements. McMurdo P found that any such test would have been pointless because the flooring and setup of the store had since changed. Woolworths therefore had failed to prove that the expert’s opinion should have been either rejected or given diminished weight. The Court concluded that had a mat been placed in front of the grape display, the fall probably would not have occurred.

Woolworths argued that whilst a means of avoiding the incident had been identified it did not mean that a breach of duty was established. Instead, the principles of Wyong Shire Council v Shirt needed to be properly applied with consideration given to the nature of the risk and what a reasonable person would do to respond to that risk. The Court pointed to a Woolworths Fact Sheet which discussed that grapes were a common cause of falls and that one of the recommended solutions was to place a mat in front of the display. Woolworths knew of the risk and how best to respond to that risk. As such, the Court agreed with the trial judge that liability had been made out.

Given the finding that the accident could have been avoided entirely if a mat was placed on the ground, the Court rejected any argument that Grimshaw should have been scanning the floor with every footstep for fallen grapes. This was an unrealistic expectation.

On quantum, the Court noted the trial judge’s comments that the failure to mitigate arguments by Woolworths were self-serving for litigation purposes rather than representing a genuine attempt to assist Grimshaw’s rehabilitation. The Court dismissed this ground of appeal. The only area in which Woolworths was successful was to reduce Grimshaw’s damages by $54,000. The Court found that the trial judge erred in failing to properly apply Todorovic v Waller when assessing future loss of earnings. The Court found that in accordance with that authority, wage increases and inflation should not be taken into account, save by applying the relevant discount to reach present value.

Conclusion

This case represents another example of the practical steps that a party is required to take to respond to a risk in line with the principles enunciated in Wyong Shire Council v Shirt.
 

Occupier found to be liable for slippery steps

(Click here to view the case)

On 28 October 2016, the Queensland Court of Appeal, comprised of Margaret McMurdo P, Gotterson JA and Atkinson J, dismissed an appeal against the decision of the trial judge that a home owner was liable in negligence for his ex-partner’s injuries after she slipped on wet stairs leading to the front door of his home.

Background

Kayleen Chandler (Respondent) was the mother of a two-week-old baby.  Clive Silkwood (Appellant) was the baby’s father.  On 9 September 2008, the Respondent contacted the Appellant by telephone and they agreed that she would bring the baby to the Appellant’s house.

The Respondent arrived at the Appellant’s house at around 8.30pm.  It was dark when she got out of the car and walked to the front door.  The outside light near the front door was not illuminated.  The concrete path from the driveway to the front door had an s-bend in it.  At the end of the s-bend is a small tiled area and then two tiled steps up to the front door which is made of glass.  Unbeknown to the Respondent, the Appellant had that afternoon hosed the wall next to the front door.  He did nothing to dry the area afterwards.

The trial judge found that the Respondent cut across to the steps from her car in a straight line rather than following the s-bend in the path.  The Respondent put her foot on the tiled area and then her right foot on the lower of the two steps. There was a factual finding that she placed her foot at an acute rather than a 90 degree angle to the steps.  When the Respondent put her right foot on the lower step, she felt herself slide forward.  In trying to stop herself from falling, she put her outstretched arms through the bottom panel of the door injuring her right arm.

The trial judge found that the risk of injury through the steps being in a wet and slippery state was foreseeable.  The risk of her falling on the stairs and hurting herself was not insignificant.  The risk was also compounded by the fact that the stairs were in darkness, which removed any possibility of perceiving the danger.

The Appellant appealed the decision of the trial judge on a number of grounds:

  • reasonable care and the use of hindsight;
  • was the cause of the slip the steps being wet; and
  • was the absence of lighting a cause of the accident.

On the first ground, the Applicant had owned the property for eight years and many people (including the Respondent) had used the steps under different conditions without problems. It was reasonable then for him to not be concerned that hosing the area would make the steps slippery and that the steps were not in fact slippery when wet at least when used in a way reasonably able to be anticipated or at least there was no reason for the Appellant to think that they would be.

On the second ground, the Appellant’s submissions were that the steps would only be slippery if the Respondent stepped longitudinally onto them and not if she stepped square on.

Finally, the Appellant submitted that the trial judge gave insufficient reasons for finding that he should have made sure the outside light was on and that doing so would have obviated a real prospect of serious harm to the Respondent.

Conclusions

The Court of Appeal found that the trial judge’s findings of fact were thoroughly explained and well justified.  They considered that had the Appellant thought about it, he would have realised that the steps were wet and slippery.  A reasonable response to that situation, it was held, was to dry the steps, to warn the Respondent of the risk, or at least to have illuminated the steps so the Appellant would have some prospect of seeing that they were wet and potentially slippery.

Applying section 9 of the Civil Liability Act 2003 (Qld) 3, the Court of Appeal concluded that the risk of a person slipping on the wet steps and being injured was foreseeable and not insignificant.  They said that a reasonable person would have taken precautions given the probability of slipping, the seriousness of the harm that could result from slipping and how easy it would have been to obviate the risk of harm.

Comment 

Whether or not an occupier of premises will be found to have breached their duty of care is clearly heavily dependent on the facts of each case.  What this case shows though is that even if the claimant has potentially been exposed to the type of risk previously, it does not obviate the duty of care on the part of the occupier.
 

Is there a proportionate relationship between legal costs and the quantum of a case?

(Click here to view the case)

Whilst not insurance related, in the recent case of McCarthy v Camil Holdings Pty Ltd heard in the Victorian Court of Appeal, the Court considered the need to continually examine the proportionate relationship between legal costs and the quantum of a case. Litigants must keep in mind the question of whether the quantum at stake warrants persisting with a claim where the pursuit of that claim inevitably incurs further and perhaps significant legal costs.

Background

On 28 September 2012, Camil Holdings Pty Ltd (Camil) lent Ms McCarthy $250,000.00 to purchase a town house off the plan from Camil. Ms McCarthy failed to pay both the principal and interest by the due date and defaulted in her payment. Camil brought a proceeding in the Victorian Supreme Court against Ms McCarthy for recovery of the debt owed by her. The proceeding was settled on the basis that Ms McCarthy would pay Camil $250,000.00 and interest, plus Camil’s costs which were assessed by a costs assessor at approximately $39,500.00. A dispute arose as to whether during settlement negotiations Camil’s counsel had represented to Ms McCarthy’s counsel that their costs were approximately $25,000.00 (a difference of approximately $14,500.00 between represented costs and assessed costs).

The issue of whether the representation was made proceeded to trial. The Associate Judge was not satisfied that it was made and found in favour of Camil. Ms McCarthy was ordered to pay Camil the sum of $24,518.52. The Associate Judge commented that Ms McCarthy’s counsel’s lack of recollection regarding the timing and circumstances in which the representation was made, made it difficult to assess whether the statement was made, but also if it was, whether it was promissory in nature.

Ms McCarthy sought leave to appeal on three grounds:

  • Whether correspondence between Camil’s counsel and Ms McCarthy’s counsel was wrongly excluded;
  • Whether there had been a wrong factual finding that the alleged representation had not been made; and
  • Whether the Court erred in finding that if that representation had been made, the appropriate remedy would have been to limit Ms McCarthy’s liability for costs to $25,000.00.

The Court’s Decision

On the first ground, Counsel for Camil objected to the email being adduced into evidence on the basis that it was protected by the Evidence Act 2008. The Court agreed that the communication was for the purpose of resolving the dispute and was privileged. On the second ground, the Court held that the Associate Judge correctly found that on the balance of probabilities no representation was made by Camil’s counsel as to the amount of Camil’s solicitor/client costs.  Finally, the Court held that it was not necessary to consider the third ground as it was no longer relevant.

The Supreme Court refused leave to appeal on the basis that the appeal did not have any real prospect of success. In addition, the Supreme Court held that this proceeding should provide an example to other litigants to keep in mind the question of whether the quantum at stake warrants persisting with a claim where the pursuit of that claim inevitably incurs further and perhaps significant legal costs. Further, the Court held that when considerable time and effort has been expended in pursuing a dispute over a modest sum this reinforces the need for practitioners to examine regularly, during the course of a proceeding whether there is a proportionate relationship between their endeavours and the quantum in dispute.
 

1 (1980) 146 CLR 40

2 (1981) 150 CLR 402

3 Almost identical to section 11 of the Civil Liability Act 2002 (Tas)

 

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