Ayyoub v BC Services & Maintenance Pty Ltd

The Issues

1. The matter can be resolved by reference to the following issues: 1. Duty of care/risk of harm 2. Breach of duty of care 3. Contributory negligence 4. Causation 5. Damages 6. The insurance issues
2. I will deal with each matter in turn.

Duty of care

1. As I said at the outset, the claim is governed by the provisions of the Civil Liability Act. The structure of that Act is now well understood. It commands that before the provisions of s 5 are considered, there first must be identified and pleaded a relevant risk of harm. That is so because s 5B(2) lists a series of reasons why a person will not be negligent in failing to take particular precautions against a "risk of harm".
2. The authorities make clear that it is critical to first accurately identify the relevant risk of harm before considering whether any breach of duty has been established and before considering whether any of the exceptions set in 5B are engaged.
3. As Leeming J observed in Uniting Church of Australia Property Trust (NSW) v Miller 91 NSWLR 752, at para 118, the "risk of harm" is not confined to the precise set of circumstances which are alleged to have occurred, although it may encompass those circumstances.
4. This point was also made by the High Court recently in Tapp v The Australian Bushmen's Campdraft & Rodeo Associations [2022] HCA 11, at para 106.
5. Turning then to the plaintiff's claim as pleaded in the amended statement of claim, filed 5 August 2022. Relevantly, the pleading is as follows: 4. At all material times the First Defendant, its servants and/or agents had a duty to ensure that the premises were kept in a state of repair so as not to expose persons such as the Plaintiff to a foreseeable risk of injury. 5. The First Defendant through its servants or agents had a duty to ensure that it performs the services that it was providing in such a manner so as to not expose persons such as the Plaintiff to a foreseeable risk of injury… … 11 The First Defendant and/or its servants and/or agents was negligent in that it … (a) exposed the Plaintiff to a risk of damage and/or injury in which it knew or ought to have known … (b) failed to take any or any adequate precautions for the safety of the Plaintiff …"
6. The only reference in the pleading to "risk of harm" is paras 5 and 11 set out above (if one reads "risk of injury" as risk of harm) and para 9, which, after pleading that the proceedings are brought pursuant to s 5B of the Civil Liability Act 2002, says: "The plaintiff asserts that the defendant, its servants, and or agents were negligent, in that it failed to take precautions against a risk of harm which was foreseeable and not insignificant, particulars of which are specifically outlined below".
7. What is then outlined below are the particulars of the alleged negligence of the first defendant.
8. It seems to me that the pleading is defective, in that it does not use as a starting point for consideration of whether a breach of duty under the legislation has been proved by identifying a risk of harm. I do not make this observation as some arid pleading point. The plaintiff's counsel's submissions, also, so it seemed to me, failed to properly grapple with this threshold question. Absent focus on a properly framed risk of harm, it becomes close to impossible to sensibly consider the operation of s 5B.
9. The second defendant accepts there is a relevant risk of harm, being that someone might trip over a lopped tree branch in the backyard of the plaintiff's premises, and thus suffer injury. Counsel for the plaintiff adopted this concession in final submissions. I will proceed upon the basis of that risk of harm, albeit it is couched at a very high level of abstraction. It is against that risk of harm that I then turn to the balance of the act.

Section 5B(1)

1. This provision is in the following terms: "A person is not negligent in failing to take precautions against the risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known) and (b) the risk was not insignificant and (c ) in the circumstances a reasonable person in the person's position would have taken the relevant precautions."

Section 5B(2)

1. Section 5B(2) then provides a non-exhaustive list of what can be taken into account when considering whether a reasonable person in person's position would have taken those precautions.

The alleged breach

1. Relevantly, the pleading asserts; 1. "A failure to take "adequate precautions for the safety of the plaintiff", a failure to "take any or any adequate measures to prevent the injury to the plaintiff", and "failed to have in place any proper system of inspection so as to ascertain the tree trimmings had bene properly removed from the premises."" 2. "Failed to remove the numerous branches that were present in the backyard of the premises that had been left on the ground after being trimmed." 3. "Failing to heed the prior warnings of the plaintiff to remove the branches from the premises." 4. "Expose the plaintiff to a risk of injury which could have been avoided with the exercise of reasonable care."

The problem with the pleading

1. For the purpose of my analysis of whether negligence has been made, and, in particular, to make the evaluative judgments required by s 5B as to whether the risk was foreseeable, not insignificant, and whether a reasonable person would have taken those precautions, it seems to me that, fundamentally, the pleading boils down to a suggestion that the breach of duty was the depositing of the tree branches into the plaintiff's backyard per se. A different case of failure to warn as to the presence of the tree branches was floated in final submissions, but not persisted with.
2. There is no issue that the first defendant put the tree branches in the backyard, but I think the circumstances under which the tree branches got into the backyard and the plaintiff's knowledge of their presence needs to be considered so as to properly apply a s 5B(1) of the Act to all the circumstances. I therefore need to make findings as to what occurred and the knowledge of the plaintiff as to the risk.

Events leading up to 28 November 2017

1. The owner of number 10 is a body corporate. Some time shortly prior to 29 November, there was some discussion between the owner of number 10 and the first defendant which culminated in the first defendant being retained by the owner of number 10 to do some work. There is in evidence a work order dated 14 October 2017 from the owners of number 10 to the first defendant, (p 154 of the plaintiff's bundle), wherein the job description is as follows: "Please attend on site to investigate 1.00 pm today and provide quotation. TH1 cracks Trees to be trimmed Gutters broken next to TH4 Holes on roof TH4 Thank you" "TH" is obviously shorthand for "townhouse".
2. A second work order of 2 November 2017 (p 155) contains the job description, "Please attend onsite to cut, remove, all bushes and trees at the front".
3. There is then an invoice dated 26 November 2017 (p 156) from the first defendant to the owner of number 10 reciting the following work: "19/11/2017 General maintenance, bushes cut removed and disposed. SP57061 8-10 Shadforth Street Wiley Park, cutting removing and disposing bushes covering the front of TH1 and front of the building. 19/11/17 Bushes around 8 m high and stretch of the frontage of the building, 12 metres, also large trees shedding the building in total around 12 tons branches and bushes. 19/11/17 Three trips to the tip."
4. At pages (157) and (158), there is a subsequent work order and invoice from the first defendant to the owner of number 10, dated 29 November 2017, relating to "fixing some guttering". There is a note on the invoice at p (156) recording that that invoice was paid on 20 November 2017. There is a note on the invoice at p (158) recording payment of the second invoice on 29 November 2017.
5. The plaintiff's evidence was that sometime in November, Mr Chahine, a director of the first defendant, introduced himself to the plaintiff and indicated that he needed to do the work for the owners of number 10. The discussion was in friendly terms and seems to have culminated in an agreement by the plaintiff that his backyard could be used for the purpose of some of the work. This makes sense, because the large tree referred to was actually growing in the plaintiff's property, but its branches were overhanging the building in number 10. I infer those overhanging branches were causing the problems with the gutters and roof at number 10, which were the subject of the original quote.
6. The plaintiff then noticed that the first defendant was taking longer than expected. He became concerned to the point of angry that the first defendant was doing an unprofessional job and was, to use his words, "using my backyard as his workshop".
7. By this, the plaintiff meant that he was irritated, because the first defendant was apparently lopping the branches off the tree, putting those branches over the fence into his property, then using a chainsaw to make them into smaller items. Then, after removing some panellings in the fence between number 12 and number 14, putting them through that boundary fence into number 14, so that a truck could come down the driveway of that property and take the timber away.
8. He felt that all of this was inappropriate and at some point said that he told Mr Chahine that he did not want him to do it anymore, and their relationship became fractured.
9. The main reason he was irritated is clear. He did not like the fact that there were branches in various states of disrepair lying around in his backyard. One of his reasons was that they were unsightly and messy. Another was obviously that they might get in his way and be a trip hazard.
10. On the evening of 29 November 2017, the plaintiff says that he heard what he considered to be a suspicious noise in his backyard. He suspected it was Mr Chahine and went outside with a view to, as he described it, "catching him red-handed".
11. By this, the plaintiff meant that he wanted to catch Mr Chahine effectively trespassing onto his property in the act. The plaintiff went outside in the dark, wearing thongs and using his iPhone as a torch. It was clear from his evidence that he was fixated on locating a person in his backyard.
12. However, eventually, he determined that the noise had come from a possum (another version reported to one of the doctors was that perhaps it was coming from another neighbour who was working in his garage). Having satisfied that he had not captured Mr Chahine "red-handed", the plaintiff was returning to his house when he says he tripped and fell over one of the tree branches left in his backyard by the first defendant.
13. I find the following facts. 1. The first defendant did place lopped tree branches into the backyard of the plaintiff's premises. 2. The first defendant then using a chainsaw was in the process of reducing the size of the pieces of timber in the backyard so as to then transport them via the driveway at 14 Shadforth Street, so they could be put into a truck and taken away. 3. The plaintiff was well aware that this was all happening and was very unhappy about it. 4. As at 29 November, the plaintiff knew that in his backyard, there were tree branches, which obviously enough would pose a danger to anyone walking around in the backyard who might trip over them. He also knew those items were coming and going and being moved about and worked on. 5. That danger (or to use the words of the Act "risk of harm") would be acute, if people did not know that the timber was there, but to my mind, would not be particularly significant at all, if a person actually knew that the timber was there and presented as a hazard. This was the position of the plaintiff.

Applying those facts to the pleaded case

1. the gist of the case insofar as breach of duty is concerned is that the first defendant failed to take adequate precautions to protect the plaintiff from the risk of falling over a branch in his backyard, because the branches were left in the premises. The fundamental problem with that case is that the circumstances were such that the plaintiff knew the branches were there. Mr Purdy, for the second defendant, puts it this way: "16. In applying the s.5B criteria the focus is on the plaintiff, not on anyone else. It is relevant to the enquiry that, from the first defendant's prospective standpoint:- • the plaintiff was, to the knowledge of Mr Chahin, a resident of the house and knew the layout of the backyard; • the plaintiff, to Mr Chahin's knowledge, knew what the first defendant was doing in the backyard; • the sections of branches, cut by chain saw, were of substantial girth and clearly visible in daylight to anyone in the backyard; and • the plaintiff could be expected to exercise care for his own safety in and around the backyard at night by using whatever illumination was available. 17. The risk of harm to the plaintiff, albeit foreseeable, was therefore at a low level of significance and did not, on a realistic and prospective appraisal, warrant the first defendant taking any particular precautions against the risk. 18. The plaintiff's particulars of negligence are entirely "generic", and do not address reasonable precautions that the first defendant could or should have taken in any event, other than removing the branches from the backyard rather than leaving them in situ. 19. CGU submits that the plaintiff has therefore not discharged the onus of proving breach of duty of care."
2. I agree. The difficulty confronting the plaintiff is that whilst the risk was foreseeable, I think insofar as the plaintiff was concerned that the risk was insignificant. In any event, in the circumstances, a reasonable person in the first defendant's position would not have taken the alleged precautions, viz not putting the branches there at all.
3. By reference to s 5B(2), the relevant factor is 5B(2)(a). That is, in my judgement, the probability that the harm to the plaintiff would occur, if the relevant care was not taken, was not great. A reasonable person in the second defendant's position would have expected someone who knew the branches were there would keep a good eye out for them if walking around at night. On that assumption, the risk becomes insignificant.
4. Accordingly, I have formed the view, taking a very broad and generous approach to the plaintiff's pleaded case, that the circumstances of the alleged failure to take precautions are such that no breach of any duty of care to avoid risk of injury has been made out. I should add that even if a failure to warn case was being propounded, which it is not, that case would also fail for the reason that the plaintiff did not need to be warned about the risk, because he knew about it.

Factual breach

1. All of the above assumes that the plaintiff did fall on the tree branches as alleged. Mr Purdy, for the second defendant, has submitted with some force that I ought not be satisfied of that fact. He accepts that there was probably a fall but does not accept a tree branch was the cause and does not accept the immediate onset of significant symptoms over and above what the plaintiff was already experiencing, other than perhaps a short term exacerbation of those symptoms.
2. This is because, firstly, immediately following the incident, the plaintiff wrote a scathing letter to his real estate agent complaining about the conduct of the first offender. He did so on 30 November 2017, i.e. the day after the incident (exhibit E). In that letter, he makes all sorts of complaints as to the inconvenience caused to him as a result of the conduct of the first defendant and the mess in his backyard, but no mention of the incident, let alone any injury.
3. Secondly, the plaintiff, who at the time was suffering considerable, ongoing back pain from a pre-existing injury suffered some 20 years previously, was receiving regular treatment as at 29 November from a number of medical practitioners. There is a paucity of any complaint in the contemporaneous medical notes made by either the acupuncturist, the chiropractor, or the general practitioner, all of whom the plaintiff was seeing regularly, both before and after the incident, for, amongst other things, back pain, to the effect that there had actually been a fall, which had exacerbated the symptoms for the very matter that the plaintiff was being treated for at the time. I accept there is a referral to radiology in December 2017, which refers to a fall. So I do accept there was some exacerbation to his back pain around that time caused by a fall.
4. Thirdly, the plaintiff's wife gave evidence. She was there on the night in question but gave no evidence corroborating the instance of the fall. Perhaps more importantly, nor did she give any evidence corroborating the immediate onset of significant injury or symptoms.
5. A finding that the plaintiff did not fall at all in the way he describes would be a very serious matter. It would amount to me finding that he is deliberately lying, not only in his evidence before me, but in relation to the case as a whole, and to the many histories he has given to at least some medical practitioners (albeit these histories only start to emerge sometime after the incident).
6. On balance, I am not prepared to make the finding contended for by Mr Purdy, and I am, but I should say, only just satisfied on the balance of probabilities that on the night in question, the plaintiff did fall, most likely as a result of tripping on one of the pieces of tree in his backyard.

Causation

1. However, that is not the end of the matter. The second question bound up with the first, which I have already referred to, is whether the fall caused any significant ongoing injury and is the cause of the plaintiff's symptoms, in particular, lower back pain, as is now alleged by the plaintiff. I am not persuaded that it did.
2. That is because of the contemporaneous medical records to which I have already referred and to the letter written to the real estate agent the very next day, none of which refer to any increase in symptoms. I shall return to the consequence of that finding later in this judgement, but I should immediately observe that such a finding is fatal to most of the plaintiff's claim for damages, even assuming that I am wrong on the question of liability.

Contributory negligence

1. Even If I am wrong in my analysis of breach of duty of care, I should observe that I would have found a very significant component of whatever injuries the plaintiff has suffered were as a direct result of him failing to take proper care for his own safety, in particular, walking around in the dark in thongs, apparently with a torch and tripping over some timber, which, whilst he might not have known precisely where it was, he certainly knew was lying around in his backyard.
2. In those circumstances, it seems to me obvious that the plaintiff failed to keep a proper lookout for trip hazards, which he knew were in his backyard. I think he did this because he was fixated on apprehending Mr Chahine "red‑handed". This was a significant direct cause of what happened. I assess the plaintiff's contribution to causation at 50%.

Damages / causation

1. The plaintiff claims the following ongoing disabilities, which he says are a result of the accident: 1. Musculoligamentous strain and musculoskeletal injury to the cervical spine. 2. Musculoligamentous strain and musculoskeletal injury to the lumbar spine. 3. Musculoligamentous strain and musculoskeletal injury to the left foot and left ankle. 4. Disc protrusion at L5/S1. 5. Subsequent psychological symptoms including depression. 6. Ongoing pain, discomfort, restriction of movement and symptoms in the cervical spine and lumbar spine. 7. Aggravation of symptoms by walking, sitting, and standing. 8. Radiating pain to the bilateral calves together with increased back pain.
2. There is no issue but that the plaintiff is seriously disabled. He suffers the following medical conditions at the moment: 1. He is morbidly obese (approximately 170 kilograms). 2. He has diabetes. 3. He has a significant enlarged liver. 4. He has profound kidney failure, which requires daily home dialysis which takes approximately 7‑8 hours per day. 5. He has hypertension. 6. He has been diagnosed with cardiovascular disease (although he does not seem to accept this diagnosis). 7. He suffers from backpain. 8. He has a disc lesion at L5/S1, and; 9. He is no doubt suffering from some form of depression as a result of all of the above and is undoubtedly profoundly compromised in his ability to undertake daily tasks.
3. There is no suggestion that the cardiovascular disease, the hypertension, the liver disease, the diabetes, the kidney failure or the obesity is in any way, shape or form related to anything that happened on the evening of 29 November 2017. The plaintiff does suffer from significant ongoing lower back pain, however he was suffering significant lower back pain for at least 20 years prior to the incident. Undoubtedly, his backpain is aggravated by walking, sitting and standing, and undoubtedly it radiates down his legs and finally, he does have a lumbosacral disc lesion.
4. Dr Dryson, in a medicolegal report dated 14 December 2022, reviewed the various scans undertaken of the plaintiff's spine on 4 and 9 December 2017.
5. He notes that those scans show at L5/S1 "a large posterior disc prolapse indenting the thecal sac". He also notes significant degenerative changes throughout the plaintiff's spine. Dr Dryson took a history of an earlier injury the plaintiff sustained to his lower back in 1993, whereupon he was off work for 2 years. He says that the history that the plaintiff told him was that "following that accident, the backpain never completely resolved … and that prior to the subject accident, he did have moderate backpain but not to the extent it is now." Dr Dryson concludes: "It is clear from the CT scan of 9 December 2017 that Mr Ayyoub suffered an L5/S1 disc protrusion on the occasion of the subject accident. Although there is radiological evidence of pre-existing lumbar spondylosis and Mr Ayyoub does report moderate back pain prior to the subject accident, it is clear from the history that this has been significantly worse since that time. It is my opinion that this protrusion at L5/S1 did occur on the occasion of the subject accident."
6. The problem with Dr Dryson's opinion is that it does not accord with my assessment of the plaintiff's symptomology in the year before the accident or in the year immediately following the accident. The plaintiff described his backpain prior to the incident as giving him moderate backpain, for which he was treated consistently with regular acupuncture and chiropractic treatment, but which, "Whenever I did something silly", would be aggravated.
7. The histories that the plaintiff gave to his various medical practitioners following the incidents are to my mind inconsistent with there really being any particular new injury as a result of the incident. Rather, I think they are consistent with an aggravation of a preexisting problem.
8. Whatever happened, it is tolerably clear to me, from reviewing the medical records, that his symptoms proceeded for most of the following year, very much as they had before. They then became progressively worse in late 2018.
9. Another problem with Dr Dryson's opinion is that it is diametrically opposed to the opinion of Dr Geoffrey Rosenberg, who is an orthopaedic surgeon to whom the plaintiff was referred by his general practitioner in October 2020. I set out below Dr Rosenberg's reports: Dr Rosenberg's report dated October 7 2020: "Thank you for referring Ismael Ayyoub. He has suffered with back pain for 20 years. It became far worse after a fall in the backyard 3 years ago. Symptoms are worse with standing and walking. At times it has radiated into his groin and at times can radiate down the backs of his legs to his knees. Overall the back pain troubles him more than the leg pain. He relies on Panadol and alcohol to control his symptoms. He has had a variety of non operative treatments which at best offer a short term limited benefit. To examine he is a very large fellow weighing at least 160 kgs. He is tender in the lower spine and quite stooped. He forward flexes slowly to his knees and has trouble extending. At rest, he has reasonable strength and his reflexes are diminished by symmetrical. I do note he has received lumbosacral facet join injections in the past which have provided short term relief. Standing x-rays showed a very degenerate lumbosacral disc. I sent him for a CT scan and this shows degeneration at the lumbosacral segment through disc and facet join disease. Above at L4/5, his facet joints are widened, indicating that he is about to slip forward. He suffers from a combination of dynamic compression and degenerative change and this is what is causing his problems. The only surgical fix for him involves a combination of decompression and fusion. The only reasonable way to perform this on him is posteriorly. I have discussed weight as a problem both technically for me and medically for him in the peri-operative period. He assures me, with a certain diet, he is able to shed weight. I have suggested he start immediately and he will see me in the next few weeks so I can keep an eye on his hopeful significant weight loss." Dr Rosenberg's report dated October 20, 2020: "I reviewed Ismael Ayyoub today. Despite his claims, he has barely lost 5 kgs. According to his wife he continues to eat, a bit less. I did my best to explain to him that despite his disabling symptoms it still is largely elective surgery. It is too fraught with danger performing an extended spinal operation on him in the prone position. I will arrange for him to see my anaesthetist. I understand that it is difficult, but really he does need to lose at least 20 if not 40 kgs. He needs to go on an Opti fast diet. Unless he can take some responsibility for himself, I really am not comfortable operating on him.
10. I also think it is important to set out the radiology results Dr Rosenberg organised. I have emphasised the relevant finding concerning L5/S1: "CT LUMBAR SPINE History: Chronic low back pain. Scans were performed from T11 to S3. There is image degradation due to patient body habitus. There is widespread degenerative disc disease. There is evidence of canal narrowing at L3/4 due to broad based disc building and some flaval thickening. There is similar change at L4/5 and L5/S1. At L5/2\S1, there is evidence of a disc lesion posteriorly and to the left compressing the left S1 nerve root. There is bony compression of both lumbosacral neural foraminae. There is degenerative change present throughout the lumbar spine fact joints and the sacro-iliac joints. There is no bony lesion. There are no other specific features. Electronically signed by Dr Carl Bryant."
11. Dr Rosenberg, as a treating orthopaedic surgeon, examined the plaintiff in 2020, took a history from him, and I infer (contra to counsel for the plaintiff's submissions) reviewed the CT scan and concluded that "he suffers from a combination of dynamic compression and degenerative change, and this is what is causing his problems." Dynamic compression, to my understanding, is to be contrasted with traumatic compression.
12. In other words, as I read Dr Rosenberg's reports, which were tendered by the plaintiff, his diagnosis was that the back pain being experienced by the plaintiff in 2020 was a consequence of long‑term degenerative change to his spine and not related to any particular trauma that took place in 2017 and was not the consequence of the disc lesion/protrusion.
13. In circumstances where there is obviously disagreement between Dr Rosenberg's and Dr Dryson's opinion, both of which opinions were tendered by the plaintiff, I prefer the contemporaneous opinion of the treating surgeon to the medical legal report of Dr Dryson, which is, I have said, seems to proceed on what I think is an erroneous assumption as to the relevant history.
14. Accordingly, I do not feel I can accept Dr Dryson's opinion that the disc protrusion at L5-S1 is a result of the incident, nor do I accept that the disc protrusion is the cause of the plaintiff's ongoing back problems. Rather, I think it is much more probable that the disc protrusion was caused by the 1993 incident, and the consequences of any fall on 29 November 2017 was no more than a short term exacerbation of his previous condition. This is what Dr Rosenberg thought in 2020. The plaintiff's current symptoms are, in my opinion, a result of that injury and the considerable degeneration that has occurred to his spine, no doubt contributed to and exacerbated by his morbid obesity.

Claim for damages

1. I will consider the claim against the possibility that my findings as to liability are wrong, but on the basis that my findings of causation are correct. The plaintiff's particulars of damage are as follows: 1. Following the subject incident which occurred on 29 November 2017, the Plaintiff has received treatment from at least the following: 1. General Practitioner Dr Aladdin Matter of Greenacre NSW. 2. General Practitioner Dr Patrick Wong of Campsie Medical Centre. 3. Consumption of Lyrica 75mg. 4. Clinical Psychologist Dr Joseph D'Silva of Green Oaks Medical Centre in Revesby. 5. Physiotherapist at Inner Health in Belmore NSW where the Plaintiff undertook over 20 sessions. 6. Laser acupuncture. 7. CT guided steroid injection into lumbar spine on 28 March 2018. 8. Orthopaedic Surgeon Dr Geoffrey Rosenberg of Kogarah NSW (4 consultations at a cost of $300 per consultation). 1. A claim is made for any valid Medicare notice of charge/past benefits. The Plaintiff is not in possession of a valid Medicare notice of charge at this stage. The Medicare charged is estimated at $5,000, and a future claim for $3,040 is made for general out of pocket expenses including medication and travel expenses, which is calculated at $10 per week for the elapsed 304 weeks. The claim for past out-of-pocket expenses is therefore $8,040. 2. Dr Rosenberg has proposed a spinal decompression together with fixation of motion segment with vertebral body alongside a spinal fusion and anterior column together with spine, posterior and/or posterolateral bone graft with an approximate cost of $11,148.75 plus the fees of the anaesthetist and private hospitals and post operative care. 3. A claim is made in the sum of $20,000 for the surgery proposed by Dr Rosenberg. 1. The said surgery in the sum of $20,000. 2. Consultations with a general practitioner with an allowance of 6 consultations per annum at a cost of $110 per consultation. 3. $12.69 per week x 5% multiplier (822) equates to $10,433.07. 4. 12 consultations with a physiotherapist per annum at a cost of $90 per consultation. 5. $20.76 per week x 5% multiplier (822) equates to $17,072.30. 6. Annual review by an orthopaedic surgeon at a cost of $300 per consultation for the next 10 years. 7. $5.76 per week x 5% multiplier (822) equates to $4,742.30. 8. An allowance for two MRI scans to the cervical and lumbar spine every three years for the next 12 years at a cost of $650 per scan. 9. $650 x 2 ($1,300) x 4 equates to $5,200. 10. Analgesia at a cost of $25 per month. 11. $6.25 per week x 5% multiplier (822) equates to $5,137.50. 12. Total claim for future treatment: $62,585.17. 1. The claimant was born on 16 November 1996 in Jordan. In 1975, at the age of 9, he immigrated to Australia. 2. He attended Matraville Public School, South Sydney Boys' High School and thereafter Meadowbank Boys' High School until grade 9. 3. The Plaintiff then obtained the equivalent of a TAFE diploma in a course which enabled him to work as a medical laboratory technician. The Plaintiff then completed two years of compulsory military service in Jordan. 4. At the age of 23, the Plaintiff returned to Australia and studied lithographic printing at Ultimo TAFE and worked as a printing machinist in Lakemba NSW for approximately 10 years. 5. The Plaintiff married his first wife born in Fiji and named Gulnaz Hussein on 9 April 1994. Together they had no children, and they were married for approximately 1 year. 6. The Plaintiff married his second wife Sophie Abu-Lawi on 27 December 1995 and together they have 5 children. The first child was born on 1 October 1996 and the last was born on 19 September 2007. 7. The Plaintiff's current and third partner is named Farida Awik and their relationship was celebrated on 15 January 2012 in Indonesia. 8. The Plaintiff has also obtained a degree in health science and complimentary medicine from Charles Sturt University and has also worked as a licenced private investigator, debt collector and a certified NAATI interpreter. 9. The Plaintiff's medical history includes an injury to his lower back in 1993 whilst lifting a box, a motor vehicle accident in 1989 in which there was a crush injury to his ribs and he attended the Royal Prince Alfred Hospital together with diagnosis of type II diabetes and gout. The Plaintiff also has been diagnosed with hypertension together with hyperlipidaemia. 10. Prior to the subject incident, the Plaintiff regularly swam for leisure and would regularly ride his bicycle with one of his daughters. The Plaintiff also enjoyed cooking. 11. The Plaintiff weighed approximately 150 kilograms prior to the subject accident and as at April 2021, his weight was 190 kilograms. 12. Following the subject incident, the Plaintiff has sought the said treatment however, he still experiences significant difficulty in undertaking tasks around the home together with travel and shopping. 13. Since January 2021 until various months later, the Plaintiff resided at unit 2, 63 Ferguson Avenue, Wiley Park NSW. Prior to that, the Plaintiff resided at unit 2, 6 St Jude Crescent, Belmore NSW and prior to that, the Plaintiff resided at 12 Shatwell Street, Wiley Park NSW for approximately 7 years. 14. The Plaintiff currently resides in Darwin, Northern Territory. 15. Whilst residing at the said locations, the Plaintiff has received gratuitous assistance from his partner in cooking, cleaning, laundry, and shopping. 16. At the Shatwell residence, the Plaintiff paid for commercial assistance from an individual by the name of Deon Bremnor who attended his home and mowed the grass on an on needs basis. 17. A claim is made for gratuitous assistance received at not less than 8 hours per week from the date of the subject incident until the date of the hearing at a rate of $27.27 per hour. 18. Calculation: 8 hours x $27.27 = $218.16 per week. $218.16 x 218 weeks = $47,558.88 19. The gratuitous assistance received and being provided to the Plaintiff may no longer be available and therefore, an introduction of future commercial assistance ought to be made at a rate of 3 8 hours per week costing $54.14 per hour. 20. Calculation: 3 hours x $54.14 = $162.42, x 5% multiplier (822) = $133,509.24, less 15% for vicissitude of life, total: $113,482.85 21. Calculation: 8 hours x $54.14 = $433.12, x 5% multiplier (822) = $356,024.64, less 15% for vicissitude of life (-53,403.69), total: $302,620.95
2. The plaintiff's schedule of damages at the start of the hearing was: 1 General damages $162,000.0 (30% most extreme case) 2 Past out of pocket $10,000. 3 Future out of pocket $10,000. 4 Past economic loss Not claimed 5 Future economic loss Not claimed 6 Past domestic assistance $66,320.64 (8 hrs per week) 7 Future domestic assistance $345,023.40 (8 hrs per week)

1. Most of the above was abandoned, reduced, or modified by the plaintiff's counsel in final submissions.

Resolution as to damages

1. In the circumstances of my finding as to causation, I am not satisfied that the plaintiff suffered anything like an injury amount into a 15% of the most extreme case, as required by s 16 of the Civil Liability Act 2002 (NSW). Accordingly, I would award no amount for non-economic loss, even assuming that there was some short term exacerbation of a pre-existing condition.
2. I would allow a moderate amount for past and future out of pocket expenses. I think a buffer of $50,000 is appropriate and indeed, generous.
3. As to past and future gratuitous care, I find the plaintiff has not satisfied the threshold for past gratuitous assistance. As to future gratuitous care, again, I do not think the threshold has been anywhere near satisfied.
4. There is also a claim for future care on a commercial basis. This claim depends on the proposition that the plaintiff's wife does not want to, or perhaps at some point in the future will not be able to provide the care she is providing at the moment. However, the evidence in support of this claim is, to my mind, close to hopeless. There is a one sentence statement by Dr Dyson in his report that in his opinion, domestic care relating only to the back injury of the plaintiff sustained in the incident and not related to any of the other disabilities from which the plaintiff suffers would amount to eight hours a week. There is no reasoning or underlying facts set out by Dr Dryson to allow me to assess that statement. I very much doubt that he has the expertise to give opinion evidence of that type, but if he did, I would give it no weight on the basis of the way it has been presented.
5. It is obvious to me that the plaintiff does need ongoing care. Apart from everything else, he is receiving dialysis for eight hours a day. If his wife will not be able to do it in the future (and both she and he tell me that she will not be able to do it), then obviously enough, he will need someone else to care for him. How much of that is related to any condition in his back is entirely unclear to me. In any event, on my findings as to causation, none of his current back problems, let alone any of his other problems, are related to the incident. Accordingly, I would allow nothing for future domestic care.
6. As to the client for future surgery by Dr Rosenberg, the problem with that claim is that Dr Rosenberg, who examined the plaintiff in 2020, said the following in relation to surgery: "…it is too fraught with danger, performing an extended spinal operation on him in the prone position. I understand that this is difficult, but really, he does need to lose at least 20, if not 40 kilograms. He needs to go on an Optifast diet. Unless he can take some responsibility for himself, I'm really not comfortable operating on him".
7. The plaintiff tells me he wants to go back and see Dr Rosenberg, but he has not lost any weight. It seems to me inevitable that Dr Rosenberg's advice will not have changed. I have built into the out of pocket assessment a consultation or two with a specialist. Again, I think this is generous in light of my findings on causation, but nothing for an operation. There will be no future operation, because it is extremely unlikely the plaintiff will lose any weight, having regard to his history of obesity. In any event, on my finding as to causation, the operation would not be connected in any way with the incident.
8. I have concluded that even if I am wrong in relation to liability and causation, I would allow no more than $50,000, which I would reduce by 50% for contributory negligence.

The insurance claim

1. Finally, I turn to the claim against the second defendant. Again, against the prospect that I am wrong as to the plaintiff's claim against the first defendant, I will deal with it. As I have said, there is in place a business insurance policy between the second defendant and the first defendant covering the relevant period. There is in evidence the endorsement schedule, exhibit A, and the relevant policy, exhibit B. The relevant provisions are as follows - emphasis added.
2. The relevant provisions are as follows [emphasis added]: COVER Subject to the limits of indemnity stated in the schedule and the terms and conditions of this cover section we will pay all sums that the insured person shall become legally liable to pay for compensation in respect of . personal injury …. happening during the period of insurance within the territorial limits as a result of an occurrence in connection with your business or products. The word "business" is defined as Business means for the purpose of this cover section only your business shown in the schedule and all other activities incidental to the conduct of your occupation including ….
3. The business shown in the schedule is "residential builder, building/domestic dwelling, apartment, flat and unit construction".
4. This is a slightly different description than one might glean from the name of the first defendant itself, which at the relevant time was "BC Service and Maintenance trading as Excel Construction and Electrical".
5. There are two questions. First, was the tree lopping in question "incidental" to the building business? Second, is the occurrence (the plaintiff's fall) "in connection with the business"? By reference to the work orders and the invoices, it seems to me that what happened is that the first defendant was asked to quote to do some building maintenance work and also some tree lopping. I am not sure what happened in relation to all the building maintenance work, but in the end, the tree lopping work was done. And then some gutter repair was done shortly after.
6. If I am wrong in my findings and liability, it is the tree lopping that was the cause of the injury suffered by the plaintiff. To put that in the context of the policy, "the occurrence: (the fall) was "in connection" with the tree lopping. The question boils down to whether the task of tree lopping can sensibly be described as "incidental to the operation of the business described in the schedule". That is the building business. If it was, the occurrence was in connection with that incidental activity and so the policy would respond. There are a number of cases that deal with similar provisions in similar, but not identical terms - in similar, but not identical policies by reference to similar, but not identical factual situations.
7. In particular, I have considered what was said Horsell International Pty Ltd [2013] NSWCA 368, and also by the High Court in BHP Billton Iron Ore Pty Ltd v National Competition Council [2008] 236 CLR 145, where the Court said that an exhaustive definition indicates that its object is the whole of its subject, where in a non-exhaustive definition enlarges what otherwise are the contents of the class which have been so identified.
8. In that case, the insured business was described as "scuba diving" and "recreational scuba diving". The Court observed that it was tolerably apparent that the sentence was intended to incorporate activities which might be regarded as directly or incidentally related to scuba diving. The Court said: "It may suffice if the sightseeing trip was undertaken for business purposes and a business asset used".
9. The Court also said that the definition might be satisfied as long as the activities are consistent with "the essential nature of the business". The ultimate conclusion was: [168] "Accordingly, it is not to the point that sightseeing is not specifically referred to in the insuring clause. It is my view an activity which could be regarded as incidental to scuba-diving or the other activities expressly referred to in the definition… It may be sufficient, for example if the sightseeing trip was undertaken for business purposes and the business asset (the boat) was used for the expedition, however, on the findings of the Court below that is not what occurred."
10. That case, in the end, is not overly helpful, because in the policy which I am considering, the word, "incidental", is expressly part of the provision. That is in the definition of business itself ("all other activities incidental…"). Moreover, under the heading, "Cover", the relevant occurrence has to be something "in connection with the business".
11. The plaintiff puts it this way: "63. In El Hayek v Vasic [2010] NSWSC 634 at [31] to [34], Garling J provided the following with respect to the principles of construction applicable to policies of insurance: [31] In McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 at 589, in [22] Gleeson CJ said: "A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure." (cited with approval by Gleeson CJ, McHugh, Gummow and Kirby JJ in Wilkie v Gordian Runoff Limited (2005) 221 CLR 522 at 529 [15]). 64. In QBE Insurance (Australia) Limited v Wesfarmers General Insurance Limited [2010] NSWSC 855, Garling J provided the following at [88]: Although it must depend on the context, the phrase "in connection with" is one of broad meaning and wide connotation requiring merely a relationship between one thing and another: Selected Seeds Pty Ltd v QBEMM Pty Ltd [2009] QCA 286 at [22]; Drayton v Martin (1996) 67 FCR 1 at 32 per Sackville J; Our Town FM Pty Ltd v Australian Broadcasting Pty Ltd (1987) 16 FCR 465 at 479 per Wilcox J. 65. With respect to "occurrence" and the connection of activity, the plaintiff relies upon paragraphs [57] to [63] of El Hayek v Vasic. [58] The disagreement and debate between the parties arises when considering the effect which the balance of the content of the coverage clause has when interpreting the clause as a whole, namely, "… in connection with the insured's activities of allowing licensed shooters on their properties for the purpose of hunting only." [59] The cross claimants submit that the words " … in connection with .." are well understood to be words of wide import: Derrington & Ashton, Law of Liability Insurance, 2nd Ed, para 3-122, p 226. They further submit that this phrase is sufficient to encompass anything which is reasonably incidental to the defined activities. [60] The Insurers submit that a narrow construction is warranted. They submit that the coverage does not include accommodation or any event outside the activity of hunting. They submit that the word " … only …" after the word " … hunting … " is a significant word of limitation with the result that unless the occurrence is causally and temporally related to hunting, then it is not within the coverage clause. [61] I do not accept that the submissions of the Insurers are correct. The coverage clause is not as narrow as they submit. [62] The coverage clause concentrates on coverage of an occurrence in connection with the defined activity. It is important to note that the defined activity relates to the conduct of the cross claimants in allowing licensed shooters on their properties for the expressed purpose. It does not relate to the particular conduct or activity of the licensed shooters whilst they are on the property. [63] In my opinion, once it is established that the licensed shooters attend the property with the subjective purpose of hunting only, then there is no reason to limit coverage by reference to the activities of the licensed shooters rather than the activity of the cross claimants in allowing them onto the property. 66. Whilst the facts of the plaintiff's claim differ, the plaintiff submits the following can be extracted from the above for application in the subject plaintiff's claim: a. A reasonable person would construe the meaning of the policy and the terms therein as applicable to the defendant's business. b. The defendant's activity was in connection with his business. c. A narrow approach cannot and should not be taken with respect to coverage. d. The coverage of the defendant's activity responds to the plaintiff's claim."
12. I think the question boils down to this, as a mixed question of fact and construction, was the activity of tree lopping being carried out by the first defendant, which I infer was a consequence of the first defendant having been asked a quote for some building maintenance and tree lopping work "incidental to the conduct of the business" and thus "in connection with the business as described in the schedule to the policy".
13. Whilst I think the matter is evenly balanced and reasonable minds might come to different conclusions, I have decided that if the plaintiff is otherwise entitled to recover from the first defendant in any amount, then the second defendant is liable to pay that amount pursuant to the policy, and thus, in the context of the claim by the plaintiff, would be liable to pay the plaintiff any amount of damages which I might otherwise award. This is because I think that the factual circumstances allow me to conclude that the tree lopping was incidental to the conduct of the business. On that basis, the plaintiff's fall was in connection with the conduct of that business.
14. My reasoning is as follows: 1. The concept of "any activity incidental to" is obviously expansive. The word, "incidental", does connote a connection between the thing under consideration and the business of residential building. But to my mind, the usual meaning of incidental requires that connection to be not overly strong. This is reinforced by the word, "any". 2. To be "incidental" to something, the thing might be expected to be subservient or ancillary to that other thing. 3. It is important not to lose sight that the primary thing that is to be considered is not the building business, but rather the "conduct of that business"… In that regard, I think the word, "occupation", was intended by the parties to be synonymous with the defined term of business. 4. I do not think that there will ever be any bright line as to the proper construction of this sort of contractual provision in specific factual circumstances. Its meaning can only really be judged by reference to particular facts relating to a particular occurrence. 5. I do not accept Mr Purdy's submission that what might generally be described as "building maintenance" or "handyman" type activities, such as fixing gutters, fixing holes in roofs, fixing leaks, is necessarily not caught by the concept of something that is incidental to the conduct of a residential building business. Whilst it is not necessary for a person carrying out building maintenance type work to have a builder's licence, it is obvious that builders are entitled to do such work, and common experience tells me that they often do. When they do so, they will often, as I infer incurred here, use the assets and staff of the building business, and the income generated will go to the benefit of that business. 6. I also think that there will be circumstances where what might otherwise be described as gardening type activities might be incidental to building work, or, again, more specifically, to the conduct of a residential building business. The answer in every case will be fact specific. 7. Mr Purdy submits that there needs to be an actual contract for building work in place or at least in contemplation before anything can be considered as incidental to that building. 8. I reject that submission. Moreover, I think, for reasons I have tried to explain that building maintenance work, absent a formal building contract, to do building work being in place or contemplated, would still be caught by the description of the conduct of a residential building business. 9. In the factual circumstances, as I have found them to be, I think that what has happened here is that the first defendant gave a quote to do some work which could be broken up into home maintenance type work together with some tree lopping. It then performed the tree lopping for which it had quoted under one work order and did some of the building maintenance work (gutter cleaning) under a second work order. I infer the assets, including the staff of the same business, were used to lop the trees, as were used to do the building maintenance work. 10. I also think it is highly unlikely that the tree lopping work have ever had been performed by the first defendant unless he was quoting to do the handyman work as well. 11. Finally, it is not insignificant that all of the work was invoiced by the first defendant, and I have no doubt was accounted for and treated as being income for the purpose of the one business.
15. For those reasons, I have come to the conclusion that the tree lopping, in the circumstances that it occurred, was incidental to the operation of the business described in the schedule to the policy, which means that if I was otherwise satisfied that the plaintiff's case against the first defendant ought succeed, I would have found the occurrence was "in connection" with that business and ordered the second defendant to pay any damages I might have assessed to the plaintiff.

Conclusion

1. In summary, I have concluded: 1. That no breach of duty has been made out by the plaintiff against the first defendant. 2. If I am wrong on that, I would make a finding of contributory negligence of 50%, as I think the accident was largely a direct consequence of the plaintiff's own failure to look after his own safety. 3. If I am wrong as to breach, I think the fall is not the cause of most of the plaintiff's ongoing significant disabilities. I think, at worse, it caused some short-term exacerbation of his ongoing and preexisting back problems. I would award no more than $50,000 damages, less 50% for contributory negligence. 4. However, if I am wrong as against the first defendant, I would have held that the insurance policy responds, and the second defendant would be liable to pay any damages payable to the plaintiff.
2. In those circumstance, the appropriate orders are, 1. Plaintiff's claim dismissed. 2. The plaintiff to pay the costs of the first and second defendants. 3. I will allow either party to apply to vary the costs orders, so long as notice of such application is received by email in my chambers by 4pm on Monday 9 October 2023. 4. The exhibits can be returned after 28 days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2023