ss5B(2)(a)-(d), 5C, 5D, 5F, 5R(1), 5S and 15(2)(a)-(c),(3) and 16.
Cases Cited: ACE Insurance Ltd v Trifunovski [2011] FCA 1204
(2001) 207 CLR 21
Jones v Bartlett [2000] HCA 56
188 CLR 313
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10]
Sakoua v Williams [2005] NSWCA 405
Source
Original judgment source is linked above.
Catchwords
ss5B(2)(a)-(d), 5C, 5D, 5F, 5R(1), 5S and 15(2)(a)-(c),(3) and 16.
Cases Cited: ACE Insurance Ltd v Trifunovski [2011] FCA 1204(2001) 207 CLR 21
Jones v Bartlett [2000] HCA 56188 CLR 313
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10]
Sakoua v Williams [2005] NSWCA 405
Judgment (14 paragraphs)
[1]
Background
The plaintiff was born on xxxxxxx 1986 and is currently 31 years of age. The accident occurred when he was 26 years old.
The chronology (Exhibit A) was prepared on behalf of the plaintiff. Prior to giving evidence he read and adopted it. There was reference in that document to a number of prior medical conditions. None of them were particularly significant.
Absent from the chronology was reference to prior low back complaints about which the plaintiff was cross-examined. The plaintiff denied any prior back complaint and said that he was in good health, however the evidence established the following matters:
1. on 6 August 2007, the plaintiff consulted Dr Parmar, GP, reporting a history of back pain and a history of a tender low back (Exhibit 3D-3, page 9);
2. on 7 March 2008, the plaintiff attended upon Dr Parmar, GP, complaining of pain in the right thoracic area (Exhibit 3D-3, page 10);
3. on 10 March 2008, the plaintiff again attended upon Dr Parmar, GP, complaining of pain in the right shoulder blade (Exhibit 3D-3, page 12);
4. on 7 August 2009, the plaintiff attended upon Dr Parmar, "brought in by his wife" and complained of lower back pain on the left more than the right after a history of heavy lifting. The pain on that occasion was also radiating down his left leg (Exhibit 3D-3, page 13). Like the plaintiff, Mrs Knibbs denied any knowledge of this attendance;
5. on 18 April 2011, the plaintiff was admitted to hospital for left sided chest pain after a bull riding accident. He had taken Panadeine Forte that morning. (Exhibit 3D-3, page 16);
6. on 23 January 2012, the plaintiff attended Hawkesbury Private Hospital with twitching on the left side of his face. He had taken Endone that morning (Exhibit 3D-3, page 20).
This evidence is uncontradicted and established that the plaintiff had suffered from a low back complaint prior to the accident. It also showed that the plaintiff had, prior to the accident, been taking Panadeine Forte and Endone.
This evidence is in stark contrast to that of the plaintiff and his wife that he was fit and healthy prior to the accident. This, again, causes me to question the reliability of the evidence called in the plaintiff's case.
The plaintiff gave evidence that, following his accident, he went out for dinner with his wife and later consulted Dr Farabi, GP. That is, either on 31 December 2012 or 1 January 2013. As discussed above, the business record kept by Dr Farabi shows that the plaintiff consulted him on just one occasion being 30 December 2012 at 10:08am. There is no history of the accident or any fall. The notes simply recorded "Reason for visit: back pain, lumbo-sacral examination consistent with muscular pain" (Exhibit 3D-3, page 25). The fact of one consultation in the absence of any complaint regarding an accident is further confirmed by the letter from Dr Farabi to the plaintiff's solicitors which appears at page 24 of that same Exhibit.
The plaintiff then went to Blacktown Hospital Emergency Department on 2 January 2013. The triage nurse recorded "Pt presents with LUQ pain post fall 2/7 ago". I interpret that as meaning the plaintiff presented with left upper quadrant pain post a fall two days ago. In additional information, the triage nurse recorded "patient states pain to LUQ, mid thoracic and tail bone post falling over some dirt 2/7 ago". Whilst this is generally corroborative of the plaintiff's case, it alone does not displace the considerable body of evidence against the plaintiff. Pain was assessed as 7 out of 10 and the plaintiff was given Panadeine Forte.
On the same day, the plaintiff was referred to radiology at Blacktown Hospital where he underwent a CT scan of the abdomen and pelvis. There was no sign of significant intra-abdominal injury (Exhibit 3D-3, page 26).
In an addenda to the triage notes, it was recorded by a nurse that "guarding LUQ on movement, c/o pain the same post fall 2/7 ago … taken Panadeine Forte at home 1700 hours". (Exhibit E, page 2).
The hospital clinical notes record the presenting complaint as being abdominal pain for two days (Exhibit E, page 3).
In the history of presenting complaint section, there is a recording that the plaintiff had a fall two days ago in which he slipped and landed on his bottom and then on to the left side of his chest. There was constant pain but increased today (Exhibit E, page 3).
In the Emergency Department Discharge Summary (Exhibit 3-D3, page 27) the reporting doctor referred to the fall and the fact that the plaintiff had landed on the left side of his chest/abdomen on a hard rock. The Discharge Summary makes no mention of low back pain, an omission which I consider to be an error by the hospital. Alternatively, the omission of back pain might be explained on the basis that the author considered that condition secondary to the others.
On 6 January 2013, the plaintiff consulted Dr Parmar, his usual GP. The clinical notes appear to refer to a problem with the left side of his neck after coughing (Exhibit 3-D1/2). Further, the notes appear to state "no spinal tenderness". There is reference to an injury to left sided ribs for which he attended Blacktown Hospital but I am unable to discern from the handwritten clinical notes any reference to a low back complaint at that time.
The plaintiff returned to see Dr Parmar on 8 January 2013. I can make out references to the abdomen, the chest and neck pain. There appears to be no reference to the low back (Exhibit 3-D1/2) or any accident. These consultations occurred at a time when one would reasonably expect the plaintiff to make a complaint of low back/buttock pain referrable to the accident.
It appears from the clinical notes that it was not until the 2 April 2013 that the plaintiff told Dr Parmar about a lower back injury. The clinical note refers to slipping while walking in January 2013 and landing on his lower back. He appeared to have complained about pain radiating into his left leg. He was referred for a CT scan of his lumbar spine and later to consult Dr Al Khawaja, Neurosurgeon (Exhibit E, page 7).
In a report back to Dr Parmar, Dr Al Khawaja indicated that the plaintiff was having severe lower back pain and left gluteal pain. It was noted that he had had these symptoms for five months and that he was taking Panadeine Forte "which only takes the edge of the pain off". The CT scan which Dr Al Khawaja examined showed a mild disc bulge. He referred him for an MRI scan.
The plaintiff returned to see Dr Al Khawaja on 8 July 2013 with the MRI imaging. Dr Al Khawaja recorded that the MRI of his lumbar spine "looks fine". There was no note of any decompression or any disc injuries (Exhibit E, page 8).
That is the extent of the background material and the documents relating to his treatment post-accident. The plaintiff and the defendants (collectively) sought to rely upon a number of medico-legal reports.
None of the medical experts were required for cross-examination which leaves the Court in a position of having to make an assessment as to which of the opinions expressed by the experts is the more probable.
[2]
Plaintiff's Schedule of Damages
The plaintiff's counsel handed up and sought to rely upon a Schedule of Damages as at 10 April 2017 (MFI 12). That Schedule set out a claim for damages in the following terms:
(a) Non-economic loss $120,000.00
Said to be 30% of a most extreme case
(b) Past economic loss $44,600.00
Calculated at $200.00 pw from the
accident to date
(c) Future economic loss $188,020.00
Calculated at $250 pw to
age 67(multiplier 884.8) with a reduction
in vicissitudes of 15%
(d) Past economic expenses $1,679.00
This was agreed
(e) Future out of pocket $5,000.00
Assessed on a buffer basis
(f) Past domestic assistance $82,733.00
Calculated at 14 hrs pw at the
rate of $26.50 from the date of the
accident to date
(g) Past s15B claim $86,814.00
Said to be calculated at the rate of 18 hrs
pw at $26.50 from the date of the accident
to 1.7.16
(h) Future domestic assistance $65,760.00
Calculated at 2 hrs pw at the rate of $40 ph
for 30 yrs (multiplier 822.0)
Total $594,606.00
I will deal with each of these heads of damages in the order in which they have been raised.
[3]
Non-Economic Loss
The early treatment suggests that the plaintiff's main injury was to his left upper quadrant area, more particularly, his left ribs. That condition resolved.
At the hospital, the complaints of low back pain were very much secondary to the primary complaint.
It is significant that the plaintiff consulted his regular GP, Dr Parmar, on 6 January 2013 and apparently made no mention of the accident or any low back complaint. The only complaints seem to have related to his left neck which was unrelated and rib pain.
When seen by Dr Parmar two days later on 8 January 2013, the neck pain had settled but it might be inferred that the thoracic or rib condition continued.
It was not until 2 April 2013 that the plaintiff made any complaints to his GP of low back pain or the accident. One would ordinarily expect that such information would have been conveyed when the plaintiff first saw his GP on 6 January 2013.
The plaintiff had a documented history of low back complaints prior to the accident. This is referred to above.
X-ray, CT scan and MRI scan examinations failed to demonstrate any abnormalities. Dr Barrett's opinion that the plaintiff may have suffered an aggravation of a pre-existing asymptomatic degenerative change in his lumbar spine seems most probable. I also accept the uncontested opinion of Dr Barrett that, at the time of assessment in June 2016, the plaintiff had recovered from the effects of the injury and had no requirement for any further treatment.
In the plaintiff's case, Dr Giblin's opinion was that he suffered a soft tissue injury to his left buttock reasonably caused by the accident. That is an injury from which one would ordinary expect recovery.
The opinion of Dr Conrad (for the plaintiff) was flawed in that Dr Conrad gave a provisional diagnosis of a spinal injury and recommended that the plaintiff undergo an MRI scan. The MRI scan in 2014 which showed no abnormality was not provided to Dr Conrad and his opinion, therefore, must be treated with caution. No explanation was provided for why Dr Conrad was not provided with the imaging.
Overall, I prefer the opinion of Dr Barrett and find that the plaintiff has recovered from the aggravation of a pre-existing low back condition, for which he had, from time to time before the fall, sought treatment.
Furthermore, I accept the evidence from the plaintiff that his chest/rib injuries recovered without incident.
In view of those findings, I accept the tentative opinion expressed by the psychologist retained by the plaintiff, Ms Glancey (Exhibit E), that the plaintiff had adopted "the sick role" with little prospect of his functioning improving whilst his claim for damages remained on foot.
[4]
Damages for non-economic loss
This is to be assessed pursuant to s16 of the CLA. I would have assessed non-economic loss in the order of 20% which would have resulted in an award of $21,000.00.
[5]
Past economic loss
The plaintiff's claim of $200.00 net per week is without any foundation whatsoever. The only income source which could have been measured with any degree of certainty are the payments received from Centrelink. The evidence established that the plaintiff has not lodged a tax return for many years prior to the accident. The inference arising from that is he had not received declarable income during that period. The Court, must, therefore, attempt to first, determine whether there has been an impairment of the plaintiff's capacity to earn. Relying upon the opinion of Dr Barrett, I am of the view that any such impairment had ceased as the aggravation of pre-existing soft tissue injury had resolved. Secondly, the Court must ascribe a value to any lost capacity. In this case that cannot be done with any degree of certainty.
Had I been called upon to assess damages in this case, I would have assessed past economic loss including superannuation (if applicable) at approximately $10,000.00. I consider this generous to the plaintiff who failed to point to any evidence of earnings in the years before the accident.
[6]
Future Economic Loss
Again, the expert evidence which I have preferred (Dr Barrett) would not support any allowance for future economic loss.
Added to that, is the complication that if there is any impairment of the plaintiff's capacity to earn, there is no evidence upon which the Court could rely in satisfying itself that any such incapacity would be productive of loss to the plaintiff. I accept the opinion of Dr Barrett and find that the plaintiff's conditions arising from the subject incident have resolved without any incapacity with his ability to work. Accordingly, I make no allowance for future economic loss.
[7]
Past Out of Pocket Expenses
These are agreed at $1,679.00 which amount I would have allowed.
[8]
Future out of Pocket Expenses
The plaintiff claims a buffer for future out of pocket expenses of $5,000.00. Having accepted the opinion of Dr Barrett, it follows that there is no need for any future treatment and, accordingly, no allowance would have been made. This is further supported by the fact that the plaintiff has sought out very little treatment since the accident and none at all since 2014.
[9]
Past Domestic Assistance
In order to qualify for past domestic assistance on a gratuitous basis, the plaintiff must satisfy the Court as to the matters set out in s15 of the CLA.
The plaintiff's evidence on this topic was exaggerated. Initially, he seemed to suggest that his wife now spends 24 hours a day doing things around the house which he used to do [T29.46]. This is plainly at odds with the evidence of Mrs Knibbs that her husband was working full time at the time of the accident. In cross-examination, the plaintiff appeared to suggest [T157-158] that he could still perform the same activities which he did around the house prior to the accident but at a slower pace. That evidence was similar to some of the plaintiff's evidence in chief where he said that he "can do everything but smaller amounts" [29.26].
The plaintiff has failed to discharge his onus under s15. In particular, I am not satisfied that:
1. that there is (or was) a reasonable need for the services to be provided; or
2. that the need has arisen or arose solely because of the injury to which the damages relate; or
3. the services would not be or would not have been provided to the claimant but for the injury (s15(2)(a)-(c)).
Further, I am of the opinion that the plaintiff has failed to discharge his onus in establishing the statutory threshold provided by s15(3) in that the evidence does not permit a reasonable conclusion that the plaintiff has received gratuitous attendant care for at least six hours per week and six consecutive months.
This conclusion is consistent with the opinion of Dr Barrett that the plaintiff did not require domestic assistance. It is also consistent with the opinion of Dr Giblin (in the plaintiff's case) that his need for domestic assistance was just one hour per fortnight, well below the threshold.
[10]
Past s15B Claim
In my opinion, this claim suffers from the same evidentiary lacuna which defeated the claim for past domestic assistance. I am not satisfied the plaintiff has made out the necessary components for an award of damages under s15B of the CLA. Accordingly, no allowance would have been made.
[11]
Future Domestic Assistance
Relying upon the preferred medical opinion of Dr Barrett and to a lesser extent the opinion of Dr Giblin, I am of the opinion that there is no reasonable need for future assistance. If I am wrong about that, then on the balance of probabilities, any such services would have been provided on a gratuitous basis and any such claim would fail to meet the threshold requirements provided by the CLA. That is, I find that any such need, if any such reasonable need exists, would not exceed six hours per week.
Accordingly, were I to assess damages for future domestic assistance, I would find that the plaintiff had no entitlement to same.
[12]
Summary of Assessment of Damages
(a) Non-economic loss $21,000.00
(b) Past economic loss $10,000.00
(c) Future economic loss $Nil
(d) Past out-of-pocket expenses $1,679.00
(e) Future out-of-pocket expenses $Nil
(f) Past domestic assistance $Nil
(g) Past s15B claim $Nil
(h) Future domestic assistance $Nil
Total $32,679.00
[13]
ORDERS
I make the following orders:
1. Verdict for the first and second defendants against the plaintiff;
2. Plaintiff to pay the costs of the first and second defendants;
3. Verdict for the third defendant against the plaintiff;
4. Plaintiff to pay the costs of the third defendant;
5. Verdict for the fourth defendant against the plaintiff;
6. Plaintiff to pay the costs of the fourth defendant;
7. The First Cross Claim is dismissed with no order as to costs;
8. The Second Cross Claim is dismissed with no order as to costs;
9. Liberty to apply within 7 days to vary any costs orders;
10. The Exhibits will be retained by the Court for 28 days.
[14]
Amendments
31 May 2017 - paragraphs 1 and 280 - removed date and month from birth date
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: 31 May 2017
Cases Cited (23)
General Principles
The CLA applies to the determination of liability in the present case. It governs questions of breach of duty and causation leaving the question of the identification and scope of the duty a matter to be determined according to common law principles (Mamo v Surace [2014] NSWCA 58 at [48]).
The nature of the relationship between the plaintiff and each of the defendants is one of the most important features in determining whether a duty of care was owed and its content.
I am of the opinion that each of the defendants owed the plaintiff a duty of care. In respect of each of the defendants, I have identified and characterised the nature and extent of that duty.
In considering whether or not each of the defendants breached their respective duties of care to the plaintiff, I have had regard to the general principles set out in s5B of the CLA (extracted below).
For reasons which follow, I find that none of the defendants breached their duty of care to the plaintiff.
The First and Second Defendants
The plaintiff's claim against the first and second defendants was brought in negligence. As observed earlier in these reasons, the plaintiff, somewhat curiously, pleaded the same particulars of negligence against all four defendants notwithstanding their differing relationships. An attempt was made in the course of the addresses to distil the cases brought and maintained against the respective defendants (see [T402-416]).
In relation to the duty of care owed by the first and second defendants to the plaintiff, the High Court has considered the content and extent of that duty in many cases but most notably in Northern Sandblasting Pty Limited v Harris [1997] HCA39; 188 CLR 313 (Northern Sandblasting). Northern Sandblasting of course overturned the previous position at common law as stated in Cavalier v Pope [1906] AC 428. The landlord was under no duty of care to persons by reason of the landlord's failure to keep the premises in repair.
In Northern Sandblasting, Dawson J (with whom Gummow J agreed) stated (at [343]) that the landlord's duty of care is:
That which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in a particular instance depends upon the circumstances of the case.
That statement was later adopted with approval by four members of the High Court in Jones v Bartlett [2000] HCA 56; 205 CLR 166 (Bartlett).
In Bartlett, three Justices of the majority favoured a duty expressed in terms of one "to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of duty to be governed by the circumstances of the case" (per Gleeson CJ 184 [56]-[58], per Gummow and Hayne JJ at 213 [168]-[169]). (see also Mason P in Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 at [4]-[5] (Sakoua)).
In Sakoua, Mason P quoted with approval (at [9]) a passage from the judgment of Hodgson JA (with whom Sheller JA and Bryson JA agreed) in Ahluwalia v Robinson [2003] NSWCA 175 at [23] as follows:
… Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. (Emphasis added).
The landlords in the present case did not dispute that a duty of care was owed. They argued that the nature and extent of the duty of care had to be determined by the circumstances of the case. This is not a case of latent defect or a question of inspecting rented premises before the commencement of the lease. This case is of a type where, it is said by the plaintiff, a hazard was created during the currency of the lease by the manner in which Stage 2 of the Works were performed.
Having regard to the circumstances which exist here, the duty owed by the first and second defendants to the plaintiff was a duty to take reasonable steps to ensure that the Works were completed safety and without creating a risk of injury to those who might enter upon the Property, such as the plaintiff.
Counsel for the plaintiff appeared to ultimately accept that the duty of care owed by the first and second defendants was delegable [T408.40].
It is plain from Northern Sandblasting that such a duty is delegable.
In Northern Sandblasting, Brennan CJ at [579] referred to with approval, a rule arising from comments made by Dixon J in Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co-Operative Assurance Co of Australia Limited [1931] HCA 3; (1931) 46 CLR 4:
In most cases in which a tort is committed in the course of the performance of work for the benefit of another person, he cannot be vicariously responsible if the actual tortfeasor is not his servant and he has not directly authorised doing of the act which amounts to a tort. The work, although done at his request and for his benefit, is considered as the independent function of the person who undertakes it, and not as something which the person obtaining the benefit does by his representative standing in his place and, therefore, identified with him for the purpose of liability arising in the course of his performance. The independent contractor carries out his work, not as a representative but as a principal.
In considering that rule, Brennan CJ stated:
In such a case, there is no basis for sheeting home to the defendant either liability for the independent contractor's tort or responsibility for the independent contractor's act or omission.
Northern Sandblasting related to injuries suffered as a result of electrical works performed at rented premises arising from the need to repair an electric stove. In the context of that arrangement, the Chief Justice stated (at [582]):
The repair of the stove does not carry any inherent risk of injury unless it was negligently done. There was no want of due care on the part of the landlord in selecting Mr Briggs to repair the stove. Apart from the landlord's duty to exercise reasonable care in the selection of a licensed electrician to repair the stove, no further duty in respect of the repair of the stove arose from the circumstances.
It is to be noted that the present case is not one in which there was dangerous or potentially dangerous activities or substances involved so as to give rise to a non-delegable duty according to the principles in Burnie Port Authority v General Jones (1984) 179 CLR 520 (Burnie).
Since the introduction of the CLA, courts must have regard to general principles regarding duty of care set out in Part 1A Division 2.
Section 5B identifies general principles as follows:
5B General principles
1 A person is not negligent in failing to take precautions against a 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 those precautions.
2 In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
the likely seriousness of the harm,
(b) the burden of taking precautions to avoid the risk of harm,
(c) the social utility of the activity that creates the risk of harm.
Having regard to all of those matters, I am of the opinion that the first and second defendants' duty of care for the plaintiff was discharged by the appointment of a competent and experienced plumber, namely Mr Koolbanis, to undertake and perform the Work. Counsel for the plaintiff accepted that proposition [T409.30]. He then sought to enlarge the duty of care owed by the landlords by reason of a telephone conversation which is said to have occurred between Ms Mallia and Ms Sheteh on 29 December 2012. I have already found that that telephone conversation did not take place and, therefore, any residual duty does not arise.
I also have regard to the remarks made by Brennan J in Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR16 at [3]).
If I am wrong about that then it was put by plaintiff's counsel in addresses that the additional duty of care would have been discharged by the first and second defendants notifying the plumber (Mr Koolbanis) of the risk created by Stage 2 of the Works performed on 29 December 2012.
The difficulties with that submission are two-fold. First, I have found that the Works on 29 December 2012 do not give rise to a hazard or a relevant risk within the meaning of s5B, and secondly, a failure on the part of the landlord to contact the plumber was causally impotent as the plumber, on the plaintiff's case, was already on notice of the complaint made by Ms Mallia.
Accordingly, whilst I find that there was a duty of care owed by the first and second defendants to the plaintiff, I am not satisfied the plaintiff has demonstrated any breach of that duty of care.
Accordingly, I find that the first and second defendants were not negligent.
The Third Defendant
The duty owed by the third defendant was limited. In respect of Stage 1, he had a duty to perform the work safely and in a workmanlike manner taking all steps to avoid any foreseeable, significant risk of injury. Stage 2 of the Works was not performed by Mr Koolbanis. He did, however, accept responsibility for arranging for those Works to be done. In that case, the duty of care extended to engaging a person who was able and competent to perform the Works safely. He discharged that duty in retaining Mr Vlahos.
Again, it was only in addresses that counsel for the plaintiff was able to identify with some specificity the claim made against the third defendant [T411-413]. As I understand the case, it is that the third defendant, as the contractor engaged by the landlords, had an "absolute liability" [T411.21]. It seems to have been put that, by reason of the nature of their relationship, the third defendant was vicariously liable for the acts and/or omissions of the fourth defendant.
If it were to be found that no such liability arose, then the plaintiff's case proceeded on the basis of there being "a residual obligation to supervise the work" of Mr Vlahos [T412.4].
In exchanges between counsel for the plaintiff and the Court, it was put that because the work involved the placement of the gas line into a trench, there was a particular duty owed by the third defendant which was non-delegable in much the same way as was considered by the High Court in Burnie. Mr Reimer, counsel for the plaintiff, stated:
It wasn't a matter of something dangerous per se, such as fire, giving rise to a dangerous fire involving very flammable substances, but it was somewhere between the common place and dangerous. It was a question of the danger having been created by the way in which the work was carried out as opposed to anything inherent in the work. [T412.27-31].
I do not accept that analogy. The present circumstances are quite different to those which existed in Burnie and, in any event, the dangerousness of the premises was a factor relevant to the duty owed by the landlord not by a contractor. When counsel for the plaintiff referred to "the danger" I understood him to be referring to the risk of injury. In this particular case, the risk of injury, on the plaintiff's case, was created by the failure to adequately compact the trench after it had been refilled, that is, Stage 2 of the Works.
Given my earlier finding that the Property in the area where the Works were performed was left in a safe condition, there was no risk created or "danger" arising from the manner in which the Works were completed.
If I am wrong about that, I am of the opinion that the third defendant is not vicariously liable for any acts or omissions on behalf of the fourth defendant. The nature of their relationship was such that it did not give rise to a relationship of employment. The ordinary indicia of employment were absent. In reaching that conclusion, I have had regard to matters referred to by the High Court in Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21.
Alternative ANALYSIS re liability
If I am wrong in the foregoing analysis and if I erred in finding that the Property was not in the state as depicted by Mrs Knibbs' photographs (Exhibit B) then, having regard to the provision of the CLA, I maintain that the plaintiff has failed to demonstrate breach of duty on behalf of the defendants.
Relevant to the duty owed by the defendants is consideration of the plaintiff exercising reasonable care for his own safety (see, for example, Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29, 206 CLR 512 at [163]).
The evidence clearly established that the plaintiff, Mrs Knibbs and their children were able to safely navigate their way from their parked car to the house without any incident. It established that a person taking reasonable care for himself or herself would have no difficulty at all in traversing the front of the Property in order to gain access to the house.
I have considered the decision of Council of the City of Sydney v Hunter [2014] NSWCA 449 (19 December 2014) (Hunter) wherein the plaintiff tripped on a tree root. In that case, the Council was sued by the plaintiff who was injured when walking on a bitumen footpath disturbed by tree roots. The Court of Appeal stated:
33. The evidence indicates that a pedestrian taking reasonable care for himself or herself would have no difficulty at all in walking along the bitumen path that passes through a small park and then turning right onto the bitumen of the Catherine Street footpath. If Mr Hunter tripped and fell on tree roots on 25 November 2011, it can only be because he was failing to take reasonable care for his own safety. There was no breach of duty on the part of the Council in failing to repair the bitumen path damaged by the tree roots in circumstances were it was clearly open for a pedestrian to pass by without treading on the roots and disrupted bitumen. …
In the circumstances of the present case, I find that if the plaintiff tripped or slipped on disturbed rubble as is his case, then it was only because he failed to take reasonable care for his own safety. I deal with the effect of this in terms of contributory negligence below, however, it is also relevant to the question of duty and breach on the part of the defendants.
Following the decision in Hunter, I find that there was no breach of any applicable duty on the part of the defendants in failing to ensure a flat surface in the area of the trench following Stage 2 of the Works, in circumstances where:
1. the plaintiff was aware of the Works;
2. the plaintiff was aware of the potential risk of injury arising therefrom;
3. had the plaintiff exercised reasonable care the accident would not have occurred; and
4. it was clearly open for the plaintiff to exit the Property without walking near the trench or disturbed earth.
CONTRIBUTORY NEGLIGENCE
In case I have erred in my findings on primary negligence, I now consider contributory negligence.
The plaintiff left the house occupied by his mother with the intention of being driven by his father-in-law (Mr Dyde) to a venue for dinner. The plaintiff, his wife and children had previously arrived at the Property he thought a bit before lunch time [T16.11]. The children were to be babysat by Ms Mallia when the plaintiff and his wife went out.
The following evidence was given in chief:
"Q. What happened please?
A. Well, we left the children there with mum, we were leaving the premises to go out with the wife and then I was walking from the front steps across the lawn to the vehicle.
Q. Why were you doing that?
A. It's the only access to pretty much to get across and …
Q. What was preventing any other means of access?
A. There were bins in the walkway and cars in the driveway. It was the only access directly straight across to where the car was so …
Q. What happened please?
A. I was walking, I slipped on a rubble if you want to call it, I'm not too sure what you call it, and my feet had come out from underneath me and I fell on a rock on my lower back, bum type area. [T16.28-43].
Using Exhibit C-1, the plaintiff then marked a photograph showing the area where he fell. In that area, there appears to be a combination of grass, lawn and disturbed earth. One can also see the white car in the background being the car owned by Mr Dyde in which the plaintiff and his wife were intending to travel. The plaintiff went on to say that he tried to carry on with the evening that had been planned and went to dinner [T22.17-24].
Under cross examination, the plaintiff gave the following evidence:
1. that, as he was leaving the premises, he could see the ground in front of him [T63.30];
2. he could see the ground in front of him clearly [T63.45];
3. there was nothing obstructing his view [T63.47];
4. he could see the area that was dug up [T63-64];
5. he could see there was rubble and rocks in the vicinity of the area (that had been dug up) [T64.5];
6. he was walking towards Kevin's car [T65.20];
7. he was watching where he was going [T65.50];
8. when he arrived at the Property he took a different route to that which he took when leaving [T67.21];
9. when asked if he could have taken another path to get to the road the plaintiff said that he could not say as "I never sussed out the whole area" [T67.29];
10. the plaintiff's wife drove the car to the Property and he alighted the vehicle on the passenger's side before walking towards the house along part of the lawn "but right up away from the trench" [T67.31-42];
11. when it was suggested to him that he could have left the Property using the same route, the plaintiff rejected that proposition on the basis that he was not getting into that car [T67.49];
12. instead, the plaintiff said that he was "just walking straight ahead" [T68.3];
13. when he left the Property it was his intention to walk in as direct a line as he could to where Kevin's car was parked outside the neighbour's place on the right hand side [T71.25];
14. as the plaintiff was walking towards Kevin's car, he could see a trench that had been dug up next to the pathway [T71.47], [T72.10], [T72.17], [T72.21];
15. the rubble did not extend right up to the side of the driveway but was right near the corner of the house [T73.25];
16. when it was put to the plaintiff in cross examination that he could have walked across an area of the front yard where there was no danger, he said, "I was walking straight across and I wasn't walking on the trench" [T75.76];
17. if Mrs Knibbs' vehicle had not been parked in the driveway they could have walked from the bottom of the stairs along the path and down the driveway [T77.25];
18. he could have walked along the side of the driveway around the back of his car to leave the Property [T80.35];
19. when the plaintiff arrived at the Property on the day of the accident he noticed the trench and that is why he did not go over that side (of the front yard) but was trying to stay to the left of the trench [T81.22];
20. when they arrived at the Property, the kids were in the car [T89.32];
21. on arrival, the plaintiff was looking after the kids so that they wouldn't fall into the trench [T89.35];
22. when they jumped out of the vehicle on arrival, they walked beside the vehicle and up onto the stairs "cause that's the direction they needed to go, they were well away from the trench" [T89.45];
23. the plaintiff may have told the children to stay away from the trench [T90.10];
24. he told them to go straight inside (of the house) [T90.15];
25. he did not allow the children to play in the front yard because of the trench [T90.20];
26. he was worried about them tripping over and cutting themselves [T90.36].
The evidence of Mr Koolbanis and Mr Vlahos failed to make out a relationship of employment. The relationship of contractor was also illustrated by the invoice dated 29 December 2012 issued by Mr Vlahos to Lancelot Plumbing (Exhibit F). That document contains Mr Vlahos' ABN number, a description of the work performed, the amount charged and details as to how payment (including GST) could be made.
I also note the observations made by Justice White of the Federal Court in Fair Work Ombudsman v Ecosway Pty Limited [2016] FCA 296 in which his Honour stated:
[71] The law has not been able to identify a single test to be applied in determining whether a given relationship is one of employment or one for the provision of services. It adopts instead a multi-factorial approach. Perram J summarised the position in ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532, at first instance, at [29]:
[F]irst, the distinction between an employee and an independent contractor is "rooted fundamentally in the difference between a person who serves his employer in his, the employer's business, and a person who carries on a trade or business of his own (Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21 at 39 [40] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ citing Marshall v Whittaker's Building Co (1963) 109 CLR 210 at 217 per Windeyer J); secondly, the answers to that question are to be determined by reference to the 'totality' of the relationship (Hollis at 33 [24]); thirdly, a number of indicia have accreted over time in the authorities which are thought to throw light to varying degrees on the outcome without being determinative: the terms of the contract; the intention of the parties; whether tax is deducted; whether sub-contracting is permitted; whether uniforms are worn; whether tools are supplied; whether holidays permitted; the extent of control of, or the right to control, the putative employee whether actual or de jure; whether wages are paid or instead whether there exists a commission structure; what is disclosed in the tax returns; whether one party 'represents' the other; for the benefit of whom does the goodwill in the business inure; how 'business-like' is the alleged business of the putative employee - are there systems, manuals and invoices; and so on -the list is either exhaustive nor short: see Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16 at 24 per Mason J and 36-37 per Wilson and Dawson JJ; for application see Hollis at 42-45 [48]-[57] per Gleeson CJ, Gaudron, Gummow, Kirby and Hayne JJ".
In my opinion, having regard to the totality of the relationship between Mr Koolbanis and Mr Vlahos, I find that Mr Vlahos was a person who carried on a trade or business of his own for which Mr Koolbanis was not vicariously liable.
It was then said against Mr Koolbanis by the plaintiff that there was a "residual obligation to supervise the work of the independent contractor". Having regard to the principles of duty of care set out in ss5B and 5C of the CLA, I reject the submission that the third defendant was negligent in failing to supervise the work of the independent contractor as:
1. Mr Vlahos was qualified, experienced and competent;
2. there was no foreseeable risk, particularly as Mr Vlahos told Mr Koolbanis that the job had been safely completed and sent him a photograph of the Work once completed;
3. any risk was insignificant. In making this finding, I note that there were other alternate routes to the house which were safely navigated by the plaintiff and others prior to the accident and there was nothing to raise the awareness of the third defendant as to any significant risk; and
4. that, in all of the circumstances, a reasonable person in the position of the third defendant would not have taken the precaution of supervising the work of Mr Vlahos. In determining that matter, I have regard to the considerations set out in ss5B(2)(a)-(d) and 5C of the CLA.
I find that Mr Koolbanis exercised reasonable skill and care in the selection of Mr Vlahos and in confirming that he would take appropriate steps (see Hodgson JA in Bellavista Pty Limited v Liberty International Insurance Company [2009] NSWCA 16 at [53]).
The third defendant owed the plaintiff a duty to take reasonable care in the performance of Stage 1 of the Works. I find that this duty was discharged. Accordingly, in respect of the plaintiff's claim against the third defendant, I find that the third defendant was not negligent.
Accordingly, I find that, even on the plaintiff's case at its highest, his case fails as breach of duty of care has not been made out.
Based upon that evidence, I make the following factual findings:
1. that from the moment the plaintiff arrived at the Property, he was aware of the Works that had been undertaken and the trench which had been dug and backfilled;
2. that, prior to the alleged accident, the plaintiff was aware of the risk created by the condition of the front yard in the area where the Works had been performed;
3. that it was apparent to the plaintiff that the trench and its immediate surrounds presented a hazard (accepting for the purposes of this analysis the case put by the plaintiff);
4. that the plaintiff left the house via the front steps and proceeded to walk along the front lawn in the area of and beside the trench with a view to leaving the Property at a point between the gas meter and the garbage bins, best illustrated by Exhibit C-3;
5. that there was an alternate route which the plaintiff could have taken and which would have avoided exposing himself to the risk of injury;
6. the alternate route is on or beside the driveway as best shown in Exhibit C-4;
7. that, rather than take that alternate route, the plaintiff chose the route which led most directly to the white car in which he was intending to travel;
8. that, in so doing, the plaintiff placed himself in a position where he was exposed to a risk which was foreseeable to him and, indeed, which he had foreseen;
9. that the plaintiff failed to take available precautions against that risk of harm;
In determining contributory negligence, it is necessary to have regard to s5R and 5S of the CLA.
For the purpose of 5R, I find that the plaintiff failed to meet the standard of care of a reasonable person in his position and that he was aware of both the risk and the danger which it presented.
The principles that are applicable in determining whether a person has been negligent also applies to determining contributory negligence (s5R(1)). In adopting that approach, and having regard to the provisions of s5B of the CLA, I find that the risk was not only foreseeable to the plaintiff but known to him, that the risk of injury was not insignificant and that a reasonable person in the position of the plaintiff would have taken the precaution of avoiding the area of disturbed earth in the vicinity of the trench.
I have had regard to the approach to be adopted in assessing contributory negligence as stated by the High Court in Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10].
Furthermore, I find that the plaintiff's own negligence was a necessary condition of the occurrence of the harm so as to satisfy the test of causation provided by s5D.
It then follows that it is necessary to make a reduction of the plaintiff's claim on account of his own negligence to the extent that it is just and equitable to do so. Having regard to the plaintiff's knowledge and election to voluntarily expose himself to the risk of injury which eventuated I find contributory negligence at 100% so as to defeat the plaintiff's claim entirely.