Kitoko v Mirvac Real Estate Pty Ltd

The accident

1. The plaintiff described the accident as follows. He was walking towards the carpark which necessitated him going through a sliding glass door. The surface he was walking upon was a shiny tiled floor. He drew a sketch to show the direction that he was travelling (Exhibit B). The sketch is obviously, and understandably, rough. Detail can be seen in the CCTV footage that came into evidence during his cross-examination (Exhibit 2D1).
2. The plaintiff said that as he approached the glass doors they were open. Just before making a left turn, to go through the doors, his body moved forward so that his head struck the glass window in front of him. He put his hands up to cushion his fall. Nevertheless his head struck the glass with some force. His head was the first part of his body to hit the window.
3. The plaintiff felt himself go backwards at which time he observed a slightly transparent viscous material on the floor in the position marked on Exhibit B. He could not estimate the extent of the material but said it was not large.
4. The plaintiff said there were marks in the material that indicated he had slipped through it. The plaintiff said that as a result of him hitting the glass window it shattered from top to bottom. It was not displaced but was obviously broken. He likened the shattering to that of a motor car windscreen being hit by an object.
5. It is important to note that the plaintiff's evidence was that but for slipping he would have turned left to go through the open door. He denied simply walking into the window.
6. After the accident the plaintiff said he walked back into the shopping centre to find a security guard or a cleaner to report the event. He was unsuccessful. He returned to the carpark and went home.
7. The defendants effectively put their case to the plaintiff by showing him the CCTV footage. They suggested to him that the footage contradicted his version in the following ways: 1. He did not slip on any material. 2. A number of persons (5) had walked over the area where he alleges he slipped without difficulty. 3. The doors were not open before the accident; rather they opened after it. 4. Most significantly, the plaintiff walked into the glass window because he was not paying attention. 5. The plaintiff's face was not the first point of contact. Rather it was probably his left knee.
8. I should note here that it was not part of the plaintiff's case that the window did not have any stickers or markings indicating its presence. To the contrary he said it was covered in signs stating the word "Mirvac". These signs are not evident on the CCTV, although it may be said that the distance of the camera from the windows precludes a final conclusion being reached on this point. There certainly seem to be markings on the sliding doors.
9. I think what can be deduced with clarity from the CCTV is that, contrary to the plaintiff's version, he simply walked into the pane of glass. The use of photographs and other like material, including film, must be treated with a great deal of caution. Applying every measure of caution, however, I cannot reach any conclusion other than that I have just stated.
10. I note here that when Dr Blum gave evidence he referred to the possibility of two different CDs containing CCTV footage. I think Dr Blum was confused in the witness box. Having regard to his third report (Exhibit 2D3), and to the affidavit of Mr Conti (Exhibit 2D7), I am satisfied that he was sent the same footage on the two separate occasions. I cannot explain his comments in his first report, other than to say he has reached the proper conclusion on his second viewing of the footage.
11. I can well understand the plaintiff's 'suspicions' but there is simply no evidence to substantiate the conspiracy to hide material that he alleges.
12. The plaintiff in giving his evidence did not strike me as an overtly dishonest person. I would be very reluctant to regard him as having made up his story. Notwithstanding this his version cannot overcome the CCTV footage. I can only conclude, giving him the benefit of the doubt, that his version is a rationalisation on his part of what had occurred following him walking into the glass pane and then reacting with shock and surprise and searching for a plausible reconstruction of what may have happened.
13. In relation to the shattering of the glass, there is no evidence besides that of the plaintiff to suggest that this occurred. It does not appear to be the case in the CCTV footage, although I do not think I could necessarily exclude it without a closer view of the glass pane. I do however note that the person seen in the footage at the time of the accident does not seem to react in a manner consistent with having heard or seen a large pane of glass being shattered.
14. Repeating that it is no part of the plaintiff's case that the defendants (in particular the first defendant) should have placed a warning on the glass pane about its presence, the events as they unfold on the CCTV footage do not support the plaintiff's allegations of negligence, nor in fact are they suggestive of any other act of negligence on the part of either defendant.
15. My interpretation of the CCTV footage is such that further consideration of the allegations of negligence, and in particular the requirements of Section 5B of the CLA, is not necessary.
16. Accordingly there must be a verdict for the defendants.
17. There are other reasons why the plaintiff should fail. Other than his testimony, the plaintiff led no other evidence that would suggest negligence on the defendants' part even if his version was correct. For example, the plaintiff tendered no documents about the cleaning system, he tendered no documentary evidence, as might be produced under subpoena, suggesting the glass pane had been repaired. He did say he had taken a photograph of the glass pane but unfortunately the device on which the photograph was taken had broken.
18. At best the plaintiff said that an inference could be drawn that because there was a viscous material on the floor it followed that the system of cleaning was inept. Absent any evidence about any cleaning that may or may not have occurred, such as rosters or other documents that might have been produced under subpoena, this inference is not able to be drawn. He could draw no assistance from the contract (Exhibit 2D6). It is therefore likely that the plaintiff would not have succeeded even on his own version.
19. I should add at this stage that the defendants relied on the expert report of Associate Professor Mark Pickering (Exhibit 1D4). No objection was taken to the report nor was the author required for cross-examination. Associate Professor Pickering's main area of expertise is digital image processing. He examined the CCTV footage and concluded that when the plaintiff struck the window he was in a normal walking position. He says that his calculations show the plaintiff's feet did not slip immediately before contact with the window and there is no evidence of him moving "forward quickly" which would be expected if he had slipped.
20. I find the expert analysis a little difficult to rely upon, especially bearing in mind the absence of knowledge of the plaintiff's normal walking posture. I think a plain viewing of the CCTV footage is more helpful. I treat the expert report as corroborative of my view rather than formative of it.
21. In case my conclusion on liability is wrong I will move now to relate events following the accident and to assess the quantum of damages that I would have awarded had the plaintiff succeeded.

After the accident

1. The plaintiff said that when he arrived home his head was painful, as was his chest. He took Panadol tablets and went to bed. In the morning he still had pain in his head and chest. On 7 October he returned to the shopping centre where he reported the incident to a man he described as "S 10". He said this man told him that he had watched the CCTV footage and could now understand what had happened. I do not know what S 10 was referring to. It is possible there was some damage to the window. I note the title of the CCTV footage is "glass doors damaged". Unfortunately the plaintiff had not subpoenaed any records which might have assisted his case.
2. S 10 took the plaintiff's details, gave him his card and told him to contact management if he had any problems.
3. The following day the plaintiff saw a general practitioner, Dr Hsu, who sent him for a CT scan, I assume of his head, which revealed no significant abnormality.
4. The plaintiff returned to Dr Hsu some days later when he was prescribed anti-inflammatory medication. The plaintiff came back in January 2011 complaining of persistent headache. He returned in September and October 2011. He was subjected to various modalities of treatment and the diagnosis was "upgraded to nerve pain with the suspicion of trigeminal neuralgia". He was prescribed Tramil but the plaintiff said that this medication made him very drowsy.
5. In April 2012 the plaintiff was referred to Dr Lord at Concord Hospital. He referred the plaintiff for an MRI scan of his brain which revealed a "possible incidental tiny aneurism arising from the A2 segment of the right anterior cerebral artery".
6. Another MRI scan on 16 September 2013 showed the aneurism had not grown in size (Exhibit 2D2). Evidence from Dr Blum was that it is a very small aneurism, although it could grow to become a significant health risk. An increase in blood pressure could result in growth.
7. I note here that it is part of the plaintiff's case that this aneurism was caused by him striking his head on the window. The Statement of Particulars does not state this in terms, referring only to a head injury. The plaintiff applied for this, and other matters, to be added to his injuries. I allowed the application.
8. I took the view that the allegation should be included because it was plainly referred to in a number of the medical reports that had been served. Notwithstanding this, there is no expert opinion stating that the aneurism was caused by the accident. The word 'incidental' in the MRI report dated 8 May 2012 suggests no inference to this effect could be drawn. Dr Blum, in his oral evidence, said there was no relationship to the accident (from T 132.35).
9. The plaintiff, as I understood him, suggested that Dr Lord did not think there was any significance in the aneurism and thought there was little wrong with him that time and painkilling medication would not address. Ultimately, however, Dr Lord did send him for nerve conduction tests which were carried out on 16 October 2012 by Dr Corbett (Exhibit A). The results were not the subject of explanation in any separate medical report.
10. Dr Lord's reports are Exhibit 1D8. In his second report he comments on the aneurism which was revealed in the MRI scan of the plaintiff's brain. He says "My interpretation of that was that it was not a sinister lesion and did not warrant further action. Certainly, there was no hint of intracranial blood following this head injury."
11. It is trite to say the plaintiff must prove his case. There is no evidence upon which I conclude the aneurism was caused by the plaintiff's head striking the window. The only direct commentary was from Dr Blum in his oral evidence. It is against any connection. I therefore reject the allegation that the aneurism was caused by the accident.
12. The plaintiff said that because he was not making much progress with his medical condition, in fact it was getting worse, he changed general practitioners to Dr Lee. He was ultimately sent to Dr Saravanja who he first saw on 21 February 2013. This doctor is a spinal and orthopaedic surgeon.
13. By the time the plaintiff saw Dr Saravanja his pains had extended to his low back and also down to his feet. He explained to me that the aneurism was connected to the feet problems because, if I understood him correctly, the aneurism was causing a nerve impingement which radiated down to his feet. Dr Saravanja gave the plaintiff a selection of injections as well as sending him for spinal physiotherapy with a Dr Clare. None of the treatments were of any assistance.
14. The plaintiff currently has pain through his body. He has not followed all the treatment recommendations because he has been unable to afford them.
15. The plaintiff said that prior to the accident he would drive a taxi on a part-time basis on weekends usually for two twelve hour shifts. He drove a taxi for disabled persons which meant that he would keep the taxi for 48 hours, although this was treated as two 12 hour periods. When he drove the taxi before the accident he was able to do 12 hour shifts without any difficulty. He would earn between $800 and $1,000 gross for a weekend's work.
16. Since the accident the plaintiff could only manage eight hour shifts but still had to pay the $450 weekend rental fee. His gross earnings were now down to $500 to $600 gross per weekend.
17. The plaintiff was not able to produce any documents corroborating his earnings. He said he had not filed a tax return since 2009 and he did not, in answer to a subpoena, produce any tax returns at all. The plaintiff seemed to suggest he was free to file back tax returns whenever he chose.
18. The plaintiff said he continued working on his PhD thesis which he submitted at the end of 2014. It was a little difficult to understand the plaintiff's allegations about his supervisor other than to the extent that he seemed to be suggesting that his supervisor was somehow acting together with the first defendant to block his progress. Nevertheless he said the thesis was now before the university board and he was awaiting confirmation that it had been accepted. He seemed confident. He had provided certain further information in July this year.
19. As far as housekeeping was concerned the plaintiff said that his wife was now doing most of the housework because he was unable to do so. This was despite the fact that she had a blood pressure problem and was also raising three young children. He estimated that she spent about four to six hours a week carrying out duties such as vacuuming, cleaning the bathroom and making beds.
20. The plaintiff said that his ambition, but for the accident, was that after completing his PhD by the end of 2013 he would obtain a research position and then progress towards a position in academia. He still had this ambition but the delay in completing his PhD had held him up. He also had aspirations to enter politics, not necessarily standing for any particular position or seat but rather having an influence in community welfare. He said he was no longer physically up to the demands that this would involve.

Quantum

1. The plaintiff provided a Schedule of Damages exceeding $4m. He told me, however, that he recognised the limited jurisdiction of the District Court and would be satisfied with $750,000.
2. I have already stated my conclusion that the aneurism was not caused by the accident. The next task is to decide what was caused by the accident. As already mentioned Dr Hsu reached a diagnosis in October 2011 of nerve damage and possible Trigeminal Neuralgia.
3. Dr Saravanja was treating the plaintiff for neck and back complaints. The plaintiff said his back complaints did not begin until 2011. The history given to Dr Harvey (Exhibit 1D3, page 2) is that the pain in the neck and low back started in late 2012. Although the plaintiff's English was understandable it is his second language and I take into account the warnings given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) when placing reliability on histories in the medical reports. I do note that the plaintiff did not challenge Dr Harvey, when he cross-examined him, about this history but perhaps he should be excused for not being aware of the requirement to do so.
4. Returning to Dr Saravanja, he states in his most recent report (6 February 2015) that: "With regards to Mr Kitoko's current situation, I do not believe that at present he requires surgical intervention. He has significant aggravation of cervical and lumbar spine normal function as a result of his injury. He states quite unequivocally that he had no discomfort or problems prior to his injury."
5. Dr Saravanja's reasoning process seems to be that if he had complaints after the injury they are probably related to it because they did not exist before the injury. There is of course logic in this approach but the absence of any apparent injury to, at least the low back, in the accident seen on the CCTV footage does cause me some concern about the diagnosis.
6. The plaintiff made the good point that Dr Saravanja was not required for cross-examination so that his views should be taken to be accepted. The main difficulty with Dr Saravanja's opinion is that he has a history of the plaintiff having neck and back problems from the accident. This is not the case, especially in regard to the low back.
7. Dr Saravanja carries on to state that the plaintiff will need surgery in the future if his symptoms continue to deteriorate. He does not state what the surgery is, what it will cost or when it might occur.
8. Dr Harvey's report seemed to find considerable favour with the plaintiff, although he did challenge the doctor about his conclusion stated at page 10 in answer to question 5. The plaintiff suggested to Dr Harvey that if he had experienced pain during examination, while having his leg flexed, that confirmed nerve damage. Dr Harvey disagreed stating that the area where the plaintiff said he was in pain was not consistent with the type of damage suggested by the plaintiff.
9. Ultimately Dr Harvey concluded that the plaintiff had not suffered any physical musculoskeletal injury, that he did not have any objective evidence of permanent disability and he could not see any reason for further rehabilitation or limitation on employment. Dr Harvey did however point out that he was not qualified to comment on any head injury or injury to the plaintiff's left temporal-mandibular joint (page 8).
10. As far as Dr Blum is concerned, he did not seem to think there was much wrong with the plaintiff at all, stating that he did not "think the injuries and disabilities are consistent with the manner in which the accident occurred. There were no problems with his neck or back immediately after the incident and there were no fractures or even local problems with the skin, his nose or his eyesight".
11. There is no doubt that the plaintiff's head, or face, hit the window. It is not surprising that he immediately suffered headaches and that the headaches have continued as have problems with his jaw. The defendants conceded this conclusion.
12. I also could not exclude the possibility that the plaintiff suffered some soft tissue damage to his neck.
13. I do have great difficulty however in concluding that he injured his low back in the accident and that the 'whole body' symptoms of which he complains are related to it.
14. Stretching my discretion as far as I can allow it I think that the plaintiff has satisfied me that he suffered injury to his head (but not the aneurism) leading to persistent headaches, pain in his jaw and also a soft tissue injury to his neck. I do not think that the low back, bowel, urine and sexual problems can be attributed to the accident.
15. Based on their concessions the defendants suggested non-economic loss of 20%. This may be a somewhat generous assessment (on their submissions of injury). However if I add in a soft tissue injury to the neck I think the percentage should increase to 25%. It is now five years since the accident and the plaintiff still has the problems which I have found to be related and they are likely to continue.
16. Pursuant to Section 16 of the CLA 25% of a most extreme case equates to $37,000.
17. The defendants allowed $2,000 for medical expenses. They said there should be no allowance for any other head of damage.
18. Dealing now with past economic loss. The plaintiff suggested $243,860. There was no evidence of his earnings from any taxi owner, there were no tax returns and there were no indications of what he might earn as an academic. There was no evidence of any employer ever having paid superannuation benefits on the plaintiff's behalf.
19. As a result of prompting by me the plaintiff did produce some guidelines for Postdoctoral Research Fellowships at UTS in 2016 (Exhibit D). The document suggests an annual gross salary of about $95,000 plus superannuation at 17%. Not only are the positions predicated on having a PhD but I have no idea whether the plaintiff's chosen field would be of interest to UTS let alone what his chances of obtaining a position might be.
20. It is almost impossible to gauge the plaintiff's likely loss of income other than, in a very basic fashion based on him apparently losing about $200 per week due to reduced taxi driving. Any addition would be an over-speculative loss of chance. In any event the plaintiff said he was still pursuing his academic ambitions, albeit possibly delayed.
21. Based on the injuries that I have found the plaintiff suffered in the accident, and accepting that their effects have continued to the present day, I think the plaintiff should receive some past economic loss. I also however have to take into account that he has low back problems which would have affected his capacity to drive a taxi and perhaps sit at a desk doing his university work. There is the possibility that he has been, to a degree impaired in pursuing his paid charity work, although I have significant doubts about whether the revocation of the charity's registration (Exhibit C) has anything to do with the plaintiff's condition.
22. The only possible way I can approach the task is to allow the plaintiff a buffer reflecting the impairments to his economic capacity that I have mentioned above. I think a buffer roughly based on $100 per week is appropriate. This is $25,000. Although I have no idea whether the plaintiff ever received superannuation contributions as a taxi driver I think I should make an allowance at 11% because of the obligation on employers to make such payments. This is $2,750.
23. The Plaintiff assessed his future economic loss at $2,894,000. As already stated he did acknowledge the District Court's jurisdictional limit.
24. The calculation for the future can once again only be done as a buffer which is possibly even more speculative than the calculation for the past.
25. I do not think the plaintiff has established any likely career path whether as a research assistant or as an academic. For purposes of Section 13 of the CLA however I do accept that he would have worked in some field connected to his PhD, once he obtains it, and that he would have continued to do so until reaching 67 years of age. I also think that his future working career would have been subject to higher than normal vicissitudes, possibly in the order of 25%. This increase is to reflect the many unknown elements of his possible success as an academic.
26. In addition I take into account that he still intends to pursue his academic ambitions and I have no reason to believe that they are now significantly less attainable than they would have been but for the accident.
27. Taking all these factors into account I think an appropriate buffer for the future is $50,000 including lost superannuation benefits.
28. Turning to his claim for gratuitous domestic assistance, the plaintiff's evidence was vague and lacking the specificity required for success in this head of damages (as emphasised in Sampco Pty Ltd v Wurth [2015] NSWCA 117).
29. Firstly I do not accept that the plaintiff was sometimes spending 60 or 70 hours per week on domestic tasks (at the same time as 12 hours a weekday at university and 12 hours each day of the weekend driving a taxi). Secondly, the plaintiff's estimate was of his wife doing four to six hours of domestic work per week. Although perhaps an inference could be drawn that this had been occurring for more than six months it certainly could not be said that the threshold of six hours for six months had been met. Accordingly his domestic assistance claim, both past and future, would have failed.
30. The defendants agreed with the plaintiff's claim of $2,000 for past medical expenses. I will allow this sum.
31. The plaintiff claimed $300,000 for future medical expenses made up of surgery to the brain ($70,000), to the neck ($60,000), to the low back ($70,0000) plus "post operation treatments" ($100,000). None of these figures was derived from the evidence. The best I can do is to allow, say, $5,000 for assorted medication and consultations and medication which might be allowed over the coming years.
32. A summary of my assessment of quantum is as follows: Non-economic loss $37,000 Past economic loss $25,000 Past lost superannuation benefits $2,750 Future economic loss $50,000 Past medical expenses $2,000 Future medical expenses $5,000 Total $121,750

1. I make the following orders: 1. Judgment for the defendants. 2. The plaintiff is to pay the defendants' costs. 3. The exhibits are to be retained for 28 days and then returned to the parties unless the Registry is informed before that time that an appeal has been lodged.
2. I will hear the parties on any special costs orders.

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 August 2015