Written by Peter CarterMarch 10, 2011
A 42-year-old bus driver attacked by an unknown assailant with a piece of timber at 7 p.m. in June 2006 at a Balmoral bus stop when returning from a toilet break, was awarded more than $100,000 damages in a December district court ruling.
The 50-meter track between the bus stop and the restroom facilities was poorly lit and shrubs along its length were overgrown. The toilet facilities were locked for use by council bus drivers who were required to carry their cash in when leaving the bus on because no lockable safe was provided on buses.
The BCC defended personal injury claims basis that there was “no reasonably practicable means of obviating the risk” because the cost of retro-fitting all buses with lockable safes and installing additional lighting at all bus termini would be unreasonable.
Secondly, alleged that counsel, expert evidence was required to establish a causal link between the alleged breach of duty and the assault and none had been called.
His Honour found in favour of the plaintiff on both points.
As to the first, His Honour reminded the defendant that its duty was not to eliminate all risks, but to take reasonable steps to provide a safe workplace. The council had in fact carried out relatively quickly after the attack, “works including trimming trees and further lighting”.
As to the second: “It would offend common sense to conclude that expert evidence was required to establish that such works would be likely to achieve a real reduction (even if not elimination) of the risk to the plaintiff”, said His Honour.
The counsel contended that the plaintiff’s loss was less than $70,000 on the basis that the psychological injury complained of all related to pre-existing events. His Honour agreed that it was no “specific psychiatric disorder such as to post-traumatic stress disorder”.
But, said his Honour, “as a consequence of the assault the plaintiff suffered from emotional symptoms and some mild post-traumatic stress disorder like symptoms and also prominent mood symptoms”. On this basis, he was prepared to increase general damages by one third to $40,000.
The plaintiff’s emotional instability also contributed to a global award of future loss of earning capacity of $55,000.