Prouten v Chapman & Anor

Supreme Court of NSW|2019-08-29|Before: Button J

Solicitors: JWK Lawyers (Plaintiff) McCabe Curwood (First and second defendants) File Number(s): 2018/4610

Introduction

The claim for damages founded on negligence made by Ms Michelle Prouten (the plaintiff) against Mr Darren Chapman and Mrs Megan Chapman (unless greater differentiation is required, the defendants) is based on the following assertions.

Rejection of claim

The nub of this judgment is that I do not accept that the plaintiff has established the claim that is summarised above on the balance of probabilities. That is so for the following three separate but related reasons.
First, I am not satisfied as a matter of fact that the accident occurred as the plaintiff claims.
Secondly, even if it did, I am not satisfied that negligence - in the sense of a wrongful breach of a duty of care - on the part of the defendants has been established as a matter of law, in particular in light of the commands of the relevant statute.
Thirdly, even if that proposition has been so established, I am not satisfied on balance that the asserted injuries suffered by the plaintiff were caused by the accident.
It is also convenient to state at this stage that, regrettably, an overarching concern about the credibility of the plaintiff suffuses the first and third determinations summarised above.
I proceed to detail each of those adverse findings in turn.

First rejection - what actually occurred?

As I have recounted, the claim of the plaintiff is founded upon the proposition that she rounded the north-western corner of the caravan on the postie bike, and was unexpectedly confronted by the presence of the extended bed. That led to the loss of control of the small motorbike, and the jolt. All of that must have occurred on the northern side of the bed that was extended to the west of the caravan, between the bed and the southern gutter of the street. But documents brought into existence soon after the accident paint a completely different picture of what had allegedly happened.
Analysing those documents in strict chronological order: the details of the accident were first recorded in a document of 16 January 2015, nine days after its occurrence. That was in a WorkCover certificate seemingly prepared by Dr Kulasekara, a general practitioner consulted by the plaintiff. It became Exhibit 8 before me.
The following appears in the certificate: "while delivering post, trying to prevent the bike falling onto her - hurt her back (due to no proper access to the post box due to parking of a caravan - postal delivery hazard)".
The document speaks of the plaintiff in the third person. There is no reason not to infer that that narrative was based upon what its author had been told by the plaintiff; having said that, I accept that it may not be an absolutely verbatim record of her words. Even so, it is immediately noteworthy that the document says nothing about an unexpectedly extended caravan bed, nor of a collision or near-collision with such a bed.
Counsel for the plaintiff submitted that that account should be seen as generic, and implicitly encompassing the specifics of the claim. In particular, he submitted that the reference to "delivering post" should be understood as encompassing the general process of approach, riding on the postie bike, to the mailbox of the defendants, and not just the specific physical act of placing mail in the mailbox.
Senior counsel for the defendants submitted that the account is adverse to the plaintiff because, as I have said, there is no mention of the extended bed, nor of its unexpected presence causing the loss of control leading to the jolt.
It is true that, on its own, this first document in time placed before me setting out the version of the plaintiff of the accident, could be thought of as generically encompassing the asserted circumstances of the jolt. Seen in isolation, therefore, I could accept the reading of the document for which counsel for the plaintiff contended. But in my opinion, interpretation of the WorkCover certificate must be informed by the subsequent documents.
Three days after that report, the incident was described separately by Mr Peter Weedon, in the form of an Australian Post incident form dated 19 January 2015. Mr Weedon was an employee of Australia Post. In the document, the type of injury was described as a "minor injury". The incident was summarised as "attempting to stop M/cycle falling I strained my lower back". The detailed description was "while delivering post, trying to prevent the bike falling - hurt back."
The details of the work process undertaken at the time of the incident were described as: "delivering mail to [the address of the defendants] after negitating [sic] past an "expander" caravan which had the sides open. While reaching forward to place mail in mail box I fell to the left. I attempted to stop M/cycle from falling and in doing so felt pain in my lower back. I received a minor burn to my right calf muscle from the exhaust pipe. I was wearing 3/4 pants on this day."
In a section headed "contributing factors", it was recorded that an "open expander type caravan which restricted access to the mail box" was one of those factors.
Importantly, there was no indication in this written incident report of a collision or near collision with the extended bed having occurred. Indeed, in my opinion the focus of the version is plainly upon the act and time of "[w]hile reaching forward to place mail in mailbox" after having ridden passed the caravan.
Mr Weedon was not called by either party. The document prepared by him was tendered by the defendants, and became Exhibit 1. In the absence of any cross-examination of Mr Weedon, the thesis of counsel for the plaintiff was that there must have been a "crossed wire" between Mr Weedon and the plaintiff, and that as a result he mistakenly wrote down a version of the accident that was markedly inconsistent with what he was actually being told by her. Counsel relied upon the evidence of the plaintiff (at TT 90-91) as supporting that thesis. In a nutshell, she gave evidence that she "did not actually write this report". His submission in short was that it is not inconceivable that there was a misunderstanding between the plaintiff and Mr Weedon.
That submission is not easy to accept. In my opinion, on its face Exhibit 1 is a detailed recording of what the plaintiff was telling Mr Weedon. It is noteworthy that it uses the first person singular pronoun, strongly suggestive of a contemporaneous written recording of what the plaintiff was saying to him. Two further factors supportive of that thesis are its level of detail known only to the plaintiff, and the fact that events are recounted in strict chronological order. Finally, it is not something casual or informal scribbled on a scrap of paper; rather, to the extent that it records something having allegedly gone wrong in a workplace shared between the two of them, it is a document of some significance.
In the absence of any application to cross-examine Mr Weedon on behalf of the plaintiff, or any other evidence that effectively undermines the credibility of the document, I consider that I am entitled to infer that Mr Weedon was indeed contemporaneously recording what the plaintiff was telling him, in quite some detail, about the accident, 12 days after it occurred.
Separately, there was no evidence placed before me that, at the time of speaking to that person, the accuracy of what the plaintiff was saying was affected by some inability to recall the details of what had happened, or by some other innocent reason not to be accurate about it.
In short, in my opinion it is very significant that in the first document that recounts in detail what the plaintiff was saying had happened to her, an account is recorded that is starkly at odds with the account that is the foundation of the claim. Indeed, if the mechanism of which the document speaks is what happened - that is, the plaintiff safely negotiated around the extended bed, but subsequently lost her balance whilst stationary and in the process of placing mail in the mailbox, thereby becoming injured - that is fatal to the establishment of the claim of the plaintiff.
The next event in time with regard to reconstructing by way of documents the circumstances of the accident is the taking of a photograph of the plaintiff, sitting on the postie bike besides the mailbox of the defendants. The photograph was taken on 19 January 2015. It became Exhibit 2. The photograph was taken by an employee of Australia Post, Ms Burroughs.
The submission for the plaintiff was that it was created for the purpose of making a report that identified the caravan as a motorcycle hazard so that the defendants could be informed that it should be removed (TT 577.31).
Counsel for the plaintiff further submitted that this particular piece of evidence is of no great moment; it is simply a photograph of the plaintiff bestride the postie bike at the mailbox of the defendants, and provides no further explanation as to the circumstances of the accident (TT 578.3).
To the contrary, I think that the photograph is important. In my opinion, the taking by Ms Burroughs of the photograph of the plaintiff astride the postie bike and placing mail in the mailbox of the defendants, combined with the absence of evidence of any photograph taken on the same occasion of the plaintiff astride her postie bike near the southern gutter of the street, some distance diagonally east of the letterbox (in other words, where the jolt must have occurred, on the case for the plaintiff), and further combined with the document prepared by Mr Weedon, strongly supports the following thesis. At the time the photograph was taken, the complaint of the plaintiff conveyed to Ms Burroughs was that she had been injured whilst performing the action of attempting to place mail in the mailbox, and not as a result of any collision or partial collision with the extended bed.
The third of the initial documents that records the accident is entitled "Root Cause Analysis - Gathering Facts", dated 23 January 2015. The document was also created by Mr Weedon. It became Exhibit 3. It is to be noted that the document recorded "failed to anticipate hazard Caravan parked in front of letterbox, lost balance and over-stretched trying to hold bike from falling onto the caravan". Having said that, it does record as a "key learning" the proposition that "Stretching to reach mailbox will expose delivery staff to risk". That latter statement is, in my opinion, certainly more consistent with the proposition that the plaintiff was claiming that she had suffered an injury while placing mail in the mailbox, as opposed to as a result of a collision or near collision with the extended bed.
Even so, I am prepared to accept that that document is broadly consistent with the claim of the plaintiff. On the other hand, it was created 16 days after the accident, and preceded by the documents and photographs of which I have spoken in some detail.
Reflecting in summary on the entirety of the records created shortly after the accident, in my opinion, taken as a whole, the first documents and other items created in the period after the accident do not support the proposition that the accident occurred as claimed by the plaintiff. To the contrary, they support a completely separate factual mechanism.
It is true that Mrs Sandra Prouten, the mother of the plaintiff ("Mrs Prouten"), gave evidence before me that, on the night of the accident, her daughter told her that she had collided with an extended bed of a caravan and sustained some injuries (TT 345.15). To be weighed against that is the fact that the evidentiary statement of Mrs Prouten was created on 5 June 2019, more than four years after that evening. She gave evidence before me on 9 August 2019, a couple of months later. Mrs Prouten gave no evidence of relying upon any written contemporaneous record of the conversation. Inevitably, in the intervening years she has been told of, and thought about, the version of the accident subsequently proffered by the plaintiff on countless occasions. The clear documentary evidence in the form of Exhibits 1, 3, and 8 must be preferred to the evidence of Mrs Prouten, even accepting, as the basis of this analysis, that she was being entirely honest as to her recollection.
I apply the same analysis to the evidence to similar effect of Mr Green, the evidentiary statement of whom was created in June 2019.
It is separately true that over the years, since those earliest versions were recorded, the plaintiff has spoken repeatedly of the near collision with the extended bed as constituting the accident. And it is also true that she firmly spoke in that way in her evidentiary statement (Exhibit F), dated 6 August 2018. In that statement, she certainly asserted that she turned the front wheel of her postie bike sharply to the right in an attempt to avoid the extended bed, and in doing so, the bike slid on the grass, she attempted to lift it back upright, but managed to twist her back and neck in the process. But in my opinion the earliest version, given quite close to the time of the accident and recorded in reasonably solemn and quite detailed form, must be given more weight than a version that has surely become imprinted upon the mind of the plaintiff.
Finally, for reasons set out separately below with regard to the last topic sketched above at [22], regrettably I have serious concerns about the credibility of the plaintiff. That concern certainly informs this primary determination of the claim.
To summarise this first basis of rejection: on its own, the very earliest written record of the accident is, I accept, ambiguous, and could accommodate both the claim of the plaintiff or the alternative. But the second earliest written version of the accident is not ambiguous: it is clearly speaking of an event that is quite different from that which underpins the claim before me. There is no basis for impugning that version. In particular, I reject the proposition that there was some extraordinary, unexplained, and unexplored crossed wire between the interlocutors. Combining that with other evidence to which I have referred - not least the photograph that corroborates the alternative version as being the one that was being given by the plaintiff - the result is that I am not satisfied on the balance of probabilities that the accident occurred as the plaintiff claims it did.
That is not to say that I am satisfied of the alternative thesis of an alleged injury suffered while leaning over to place mail in a letter box to the civil standard. It is simply to say that I am not affirmatively persuaded on the balance of probabilities that the plaintiff was indeed injured as she rounded the caravan and was confronted by the extended bed.
That rejection of the basal facts underpinning the claim is, I consider, sufficient to dispose of it adversely to the plaintiff. But, as I have said, I do so on other bases as well.

Second basis of rejection - elements of negligence?

I turn contingently now to consider whether even if, for the sake of argument only, the accident occurred precisely as the plaintiff claims, she has established the elements of negligence against either or both defendants. (The element of causation necessary for negligence is analysed separately later in this judgment.)
I turn then to analyse the questions of duty of care, evaluation of risk of harm, and, in light of that evaluation, whether the defendants breached that duty.

Duty of care?

The starting point is that, in my opinion, each of the defendants owed a duty to other persons to take reasonable care to avoid those persons being injured by items within the ownership or possession of the defendants in and around the curtilage of their home. That would include, I think, items that they may leave for a time on the nature strip outside their home. I did not understand the formulation of the duty at that level of generality as being in dispute between the parties.

Risk of harm?

In order to assess whether the defendants breached that duty, it is next necessary to assess the risk of harm that arose from the state of affairs of the caravan being left with its bed extended on the nature strip outside a suburban home. I proceed to do my best to analyse the risk with a focus that is neither unduly specific nor unduly generic: see Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320.
The risk of harm was characterised by counsel for the plaintiff as having a postal delivery worker colliding with the caravan unexpectedly, or more appropriately, the caravan bed, which was parked on the nature strip, while undertaking their daily duties of riding along the defendants' street and delivering the mail.
Counsel for the defendants described the risk of harm as being the risk of the plaintiff colliding with the caravan or needing to take evasive action to avoid the caravan.
Thinking about the risk of harm that arose here: it will be recalled that the caravan and its extended bed in no way protruded onto the roadway. They each sat contained within the nature strip, extending parallel with it. In other words, there was no risk of harm to any person using this suburban road by way of a motor vehicle, a bicycle (or any other unpowered item), or even on foot. The risk was confined entirely to persons occupying a suburban nature strip.
Secondly, the nub of the claim of the plaintiff is not the presence of the caravan on the nature strip (although that is a necessary precondition to it). What the plaintiff relies upon is the bed without warning having been left extended after a period of it having been tucked away, and it being shielded from view by the bulk of the caravan itself, with the result that she was confronted by the extended bed unexpectedly.
In other words, the risk of harm under consideration here arose only to persons travelling along the nature strip from the east, because a person approaching the extended bed from any other point of the compass must have readily seen it.
Thirdly, the claim of the plaintiff is that she was approaching on the postie bike at about walking pace. But I think that any person approaching from the east at a literal walking pace would have had time to stop or easily avoid the extended bed without incident when confronted with it, having travelled past the north-western corner of the caravan, whether on foot, a postie bike, or anything else. As a (contingent) finding of fact, I think that she was travelling something beyond walking pace on the postie bike. And, speaking generally, it is very unusual and inherently dangerous for persons to travel, by any means, at anything other than a very low speed on a nature strip.
In other words, the risk of harm in the circumstances only arose with regard to persons travelling on the nature strip (as opposed to the road), from the east (as opposed to any other direction), during the period in which the bed was admittedly extended by the defendants (as opposed to at any other time), and at a pace at least somewhat above walking pace (as opposed to any lesser pace).
In other words, to consider a number of negative hypothetical examples: there was no risk of harm to a person strolling from east to west along the nature strip. Nor was there any such risk to a young child riding his or her tricycle at necessarily low speed in that direction along that generally level street. Nor was there any danger to an athlete sprinting along the nature strip from west to east. The risk only presented itself to persons who were travelling at some pace from a particular direction and on a small portion of the landscape that did not encompass the roadway: for example, a person jogging reasonably quickly, or sprinting, or a teenager riding his or her bicycle reasonably fast, or a postal worker who was riding his or her postie bike on the nature strip, as opposed to the road.
Fourthly, the risk of harm was even more circumscribed in terms of the path taken by a putative traveller, as follows. Even if one was travelling from east to west - either on the northern side of the caravan or the southern side - the extended bed would only present a risk of harm if one proposed to "round the corner" of the caravan, having passed it. That is because a person who did not do so would travel straight past the extended bed without incident as he or she proceeded along. In other words, a person travelling in generally a straight line would not be exposed to the risk of harm under consideration.
Fifthly, it is apparent from all of the photos that became Exhibits A, B and C that, speaking generally, this suburban street was not a main thoroughfare, or even a busy street (though one might think that it was busier, perhaps, in the mornings and afternoon, when commuters may have been beginning and ending their journeys to work by private motor vehicle or bus). It is to be recalled that the accident occurred at about 11:40 am on a weekday, and in the middle of the Australian summer holidays: Wednesday, 7 January 2015. In other words, the configuration of the caravan and the extended bed in relation to the nature strip and the southern gutter of the street cannot be seen in physical isolation; it must also be considered in the context of the kind and degree of the use of the thoroughfare itself. In my opinion, the geographical setting was surely neither crowded nor busy nor otherwise inherently remotely dangerous or risky at the time of the accident.
Sixthly, as can be seen from the photographic exhibits, the extended bed was made partly of metal, and had, I infer, some weight to it. But other than its presence, shielded from one point of the compass by the bulk of the caravan, it possessed no other risk-creating attribute. Indeed, it is apparent that a significant proportion of it was made of fabric, presumably attached to a metal frame. For example, it was neither dangerously hot, nor razor sharp, nor spiky, nor capable of falling heavily on any person. And it was, of course, entirely stationary. The risk it presented did not go beyond the simple attribute of its hidden bulk.
In summary: the risk of harm was that a person travelling only from east to west, and only on the nature strip, and only at a speed at least somewhat above walking pace, and only following a route that led him or her around the caravan as opposed to past it, could collide or nearly collide with the stationary bed, and suffer some injury as a result.
I respectfully think that that risk of harm was an extremely low one.

Breach of duty of care, in light of risk of harm?

Having formulated the duty of care, and having evaluated the risk of harm, and having characterised the latter, I now turn to the question of establishment on balance of breach of duty of care. In particular, I consider whether the defendants breached their duty of care by failing to take precautions against the risk that I have discussed. And I undertake that exercise bearing in mind the various strictures of the central statute.
Turning immediately to the application of the provisions of the Civil Liability Act 2002 (NSW) (the CLA) to my findings, I consider first the question of whether the risk of harm that I have identified was "foreseeable", in that either or both of the defendants knew of it, in accordance with s 5B(1)(a).
It is true that, in her evidentiary statement tendered by the plaintiff, and which became Exhibit 4B, the defendant Mrs Chapman spoke of the caravan having been parked on the grass verge for a couple of days prior to the accident, on a street where it was not unusual for cars to be parked on the grass. She also said that, on the morning of the accident, she pulled the extended bed out for ease of packing the caravan, and retracted it later that evening. Significantly, she also spoke of being aware that postal delivery workers would ride along her street, and that the plaintiff would have likely passed the caravan on at least one prior occasion.
But that latter statement is hardly evidence that she or her husband knew of the risk that a person travelling on the median strip, at a pace somewhat above walking pace, from the east, could veer around either the north-western or south-western corner of the caravan, and suffer injury either as a result of colliding with the extended bed, or as a result of a jolt inflicted whilst avoiding such a collision.
In short, I do not accept that either defendant knew of the risk of harm that I have identified.
As to whether they "ought to have known" in accordance with the same subsection of the CLA, it is true that this contingent analysis is being undertaken on the working assumption that the accident did indeed occur as claimed by the plaintiff. But, resisting the temptation to engage in analysis with the benefit of hindsight, I do not accept that the course of events that transpired here was something that the defendants "ought" to have known. In terms of the normative judgment encapsulated in that English word, I think that the accident under (hypothetical) discussion must be thought of as an extremely unlikely event, and that it was not something that "should" have been within the awareness of suburban householders.
Separately, reflecting upon s 5B(1)(b) of the Act, self-evidently there was a risk that what did happen (putatively, for the purpose of this discussion) would happen. But in my opinion, because of all the circumscribing factors that I have set out above, I consider that the risk must indeed be characterised as insignificant, if not remote.
Turning now to s 5B(1)(c), and its reference to the chapeaux of that section, the thesis of counsel for the plaintiff was that reasonable persons in the position of the defendants would have taken precautions against the risk of harm in a number of ways, as follows. (For convenience, I express things in terms of what "should" have been done, whilst not forgetting that the analysis is based upon reflection upon what reasonable persons in the position of the defendants would have done.)
First, the caravan itself should not have been left on the nature strip. The point was made that, in fact, householders are not entitled as a matter of law to clutter up or impede in that way what, is after all, public property.
Secondly, the bed should not have been left extended as it was until the evening on the day in question. I understood the proposition to be that it should only have been extended, if at all, once the defendants were present and actually in the process of packing the caravan (TT 582.28).
Thirdly, it certainly should not have been left in that state without persons present who could, as necessary, bring it to the attention of anyone who may have been approaching on the nature strip from the east at a reasonable pace, whether on foot or otherwise.
Would in those circumstances, a reasonable person in the position of the defendants have taken those precautions? That is the question that I am asked to reflect upon by s 5B(1)(c) of the Act. And that reflection is of course informed by the entirety of s 5B(2), and its enumerated factors.
Reflecting on those factors briefly in turn: I think that here there was a very low probability indeed that physical injury could occur as a result of the bed being extended from the caravan that was parked on the nature strip: s 5B(2)(a). I say that because of all the objective circumscriptions that applied to the scene and that I have detailed above in discussing my evaluation of the risk of harm.
Even if injury did occur, I think that the likely seriousness of a collision, or near collision, or closely avoided collision, could be assessed as being relatively minor. For example, one could theoretically posit a teenager, travelling at a reasonably slow pace on grass, rounding the caravan on his or her pushbike, colliding with the extended bed, bouncing off it, tumbling to the grass, dusting himself or herself off, and continuing on to the west. Later, he or she might discover a bent spoke on the bicycle and a sore ankle. In contrast, I think that the extensive and permanent physical and psychological harm alleged to have arisen here as a result of what I have called a jolt must be assessed as having been unlikely in the extreme. To express my analysis in terms of the relevant statutory paragraph, I consider that the likely seriousness of the harm arising from the risk of harm that this state of affairs presented was very much towards the less serious end of the spectrum: s 5B(2)(b) of the CLA.
As for the burden of taking precautions spoken of in s 5B(2)(c) of the CLA, in my respectful opinion it borders on the preposterous to suggest that there should have been, in all the circumstances, a sign at the eastern end of the caravan, created and placed there by the defendants, to the effect of "Caution! Extendable bed protruding on the other side." (I hasten to add that counsel for the plaintiff did not suggest otherwise.)
Other steps, I agree, could have been more sensible, with the undoubted benefit of hindsight: packing the caravan in the rear of the premises, even though that was more difficult and inconvenient because the ground was less even there; not leaving the bed extended, even for a moment; if the bed was to be left out, having someone there during that time to keep an eye on it and any persons proceeding from the east along the nature strip. Still and all, in my opinion the risk of harm occurring as the plaintiff asserts it did was so remote that it would be unreasonable - and in that sense, burdensome - to expect any suburban householder to undertake any such precautions.
In saying that, I have not forgotten the conceded unlawfulness of parking a caravan on a nature strip. But that is more in the nature of a regulatory prohibition, and would hardly be thought of by many members of Australian society as something illegal, let alone criminal. In my opinion, it is the kind of rule that is "honoured in the breach" by countless thousands of Australian suburban households every day. That everyday reality is part of my assessment of this normative question. And in any event, there is no specific rule to which the plaintiff invited attention that speaks of when one can and cannot extend a bed on stationary caravan. And yet it is not the parking of the caravan on the nature strip that is the nub of the claim, and the nub of the risk of harm; to repeat: it is the leaving of the caravan bed extended in such a way that it was obscured when one approached on the nature strip from a particular direction.
Finally, as for s 5B(2)(d) of the CLA, counsel differed in the tightness of their focus as to what was the relevant activity for analysis as to social utility. Senior counsel for the defendants suggested that it is the undoubtedly socially useful activity of persons enjoying the refreshment of a holiday that needs to be considered. Conversely, counsel for the plaintiff spoke of there being no social utility in persons packing a caravan in a particularly dangerous way.
I think the position is somewhere in between those two extremes: there is a social utility in members of Australian society packing a caravan so that they can have a well-prepared and well-provisioned, independent and affordable holiday. Of course, there is no social utility in doing that in a dangerous way. To give a hypothetical example, just to illustrate my thinking, there is no social utility in preparing for a holiday by leaving a caravan, whilst it is being prepared for travel, with its door ajar and with an interior gas jet open, unbeknown to a suburban stroller who might be smoking a cigarette, or to playing children who could perhaps clamber inside and shut the door. But that posited picture is very many steps away from what is alleged to have happened here.
In short, I do not believe that reasonable persons in the position of the defendants would have taken precautions against the risk of harm that I have identified.
Finally, I should say that I have not neglected to reflect on the three statements to be found in s 5C of the CLA, and the fact that they may inform one's consideration of s 5B. But none of them, in my opinion, is particularly pertinent, and indeed the submission of counsel for the plaintiff that none of them really applies to this case has some force.
Even so, as for the second, of course I have not taken the view that simply because the caravan could have been packed in a different way by the defendants means that they are liable, or their putative liability is affected: s 5C(b).
As for the third, there was no evidence of the defendants subsequently adopting a different method of packing their caravan before a subsequent holiday: s 5C(c).
And as for the first, I have reflected on the proposition that, if indeed there is to be an expectation that caravans are not to be packed on nature strips with an internal bed extended without some form of precautions, one would need to factor into that assessment the inherent burden of that proposition being applied more generally. I believe that that sort of reflection is also adverse to the establishment of a breach of duty of care: s 5C(a) of the CLA.
Separately, senior counsel for the defendants made passing reference to s 5F and following sections of the CLA, and suggested that it could be said that here was an obvious risk. But I do not believe that that proposition needs to be pursued for the purposes of this contingent analysis; after all, the underpinning assumption of this analysis is that the extended bed was indeed not obvious to a person proceeding along the nature strip from east to west.
As a third step then, reflecting upon whether the defendants have, by failing to take precautions against the extremely circumscribed risk of harm that I have identified, breached the duty of care that they owed to others that I have assessed at a level of generality, and applying to that the relevant portions of the CLA, along with my own assessment of the norms of Australian suburban life, I answer the question in the negative.
In short: because it has not been established on balance that the defendants breached their duty of care, the claim, even if it were proven as a matter of fact, cannot succeed.

Third basis of rejection - injuries caused by the accident?

I have already rejected the claim on the basis that I am not satisfied on the balance of probabilities that it occurred as alleged. I have also contingently rejected it on the basis that I am not satisfied that it has been proven on balance that either of the defendants breached the duty of care that he or she owed to the plaintiff.
I turn now to a further contingent basis of rejection; that is, my failure to be satisfied on balance that the injuries allegedly suffered by the plaintiff were caused by what I have called the jolt. Because it is a second contingent analysis, I shall be briefer.
Analysis of this contingent question proceeds, of course, on the assumption for the sake of argument, not only that the accident did occur as the plaintiff claims, but also that the defendants were negligent. And it proceeds with the statutory reminder to be found in s 5E of the CLA that the plaintiff "always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation" firmly in mind. (I interpolate that I did not understand senior counsel for the defendants to place any reliance, in either written or oral submissions, upon the strictures in s 5D of the CLA with regard to causation.)
It is to be recalled that, at its highest, the plaintiff suffered a significant jolt when she unexpectedly came across the extended bed and struggled to maintain stability of the postie bike. (She also, of course, suffered a burn to her leg, but there is no suggestion that that failed to resolve, and it became no part of the ongoing claim.) Thereafter, she delivered mail to the mailbox of the defendants and completed her mail run. Subsequently, she attended medical experts, although she did not end up seeing a physiotherapist until 4 February 2015, a few days short of a month afterwards.
Later again, she suffered a further accident while fulfilling her duties on the postie bike on 31 August 2015, after which she has never worked again. But the parties seemed to be agreed that, whatever injuries the plaintiff has suffered, they cannot wholly or even partly be sheeted home to that subsequent event, and its effects must be approached as merely the exacerbation of any previously existing condition. I approach it in that way, and shall not discuss that subsequent accident further.
From that jolt, according to the claim, the plaintiff has suffered injuries that, years later, have left her gravely physically incapacitated, with concomitant psychological injury.
For the purposes of this contingent analysis, the claim as it currently stands need not be recounted in detail. In a nutshell, the statement of particulars placed before me speaks of muscular damage and strains, periodic headaches and migraines, chronic back pain, and disability to the extent that the plaintiff has received extensive daily care and is simply unable to perform any sort of work. It is no exaggeration to say that the claim is that the accident has had a devastating effect upon the quality of life of the plaintiff.
A number of aspects of the evidence lead me to exercise significant caution in accepting those claimed consequences of the accident.
First, as a matter of common experience, it is not easy to accept that a jolt such as that relied upon could readily cause that panoply of grave problems. That is not to say that that would be impossible, and I appreciate that the complexity of the human body means that seemingly reasonably minor events can have very major physical consequences. I also appreciate that different human bodies respond differently to different trauma. Even so, the extent of the physical injuries said to have developed solely from a single jolt experienced whilst riding a comparatively light postie bike on a grass surface at near or something above walking speed can only be assessed as remarkable, if not extraordinary.
Secondly, the plaintiff has not been entirely consistent in the accounts of her injuries and their mechanisms that she has given to the many medical professionals she has seen. That is not to say, of course, that one should expect a distressed and injured person who is called upon to see countless doctors over a number of years for treatment and assessment to be absolutely consistent in his or her narrative. Again, that would be to adopt an inflexible analysis that is contrary to human experience. Even so, the following two examples play some role in my approach.
The claim has come over the years to include a tearing or forcible separation of tendon or muscle from a shoulder blade of the plaintiff. In support of that, the plaintiff spoke to Dr Coughlan, a neurosurgeon, on 1 August 2016. He reported that the medical history of the plaintiff involved a fall with significant force which "sustained a lot of soft tissue injuries with marked bruising down the side of her body". However, Dr Coughlan found that there was no evidence of a previous fracture and, rather, opined that the accident most likely represented "an avulsion type injury related to direct trauma", and for which there were no surgical cures.
And yet, patently, that sort of trauma could not have arisen from the jolt that is the nub of the claim. In particular, the suggestion of extensive bruising down one side of the body of the plaintiff is fundamentally inconsistent with the jolt that I have summarised early in this judgment. Not only that, but there was no complaint of injury to the shoulder blade - however it was said to have been inflicted - of the plaintiff until many months after the accident.
In relation to another treating professional, psychologist Dr Mason, the plaintiff informed her of a "right-sided hip problem" having arisen from the accident. That was in June 2018, almost 3 ½ years after the date of the accident. Again, that was not spoken of in the period shortly after the accident. On the case for the plaintiff, it must be something that had developed subsequently. Again, the question of causation arises.
In short, a possible phenomenon of the injuries allegedly caused by the accident having "grown" in the reports made by the plaintiff to medical professionals is, I think, a concerning aspect of this matter. So is the suggestion that the allegedly immediate consequences of the jolt have "grown" as well. And so is a lack of clarity as to whether the accident said to have caused those injuries was a jolt, or allegedly something more.
Thirdly, the injuries allegedly suffered are very largely devoid of objective corroboration, in the form of some observable and unmistakable physical sign that demonstrates their mechanism.
Yet again, I am not being so simplistic as to demand that a hypothetical person who is undoubtedly suffering a very sore elbow must produce an x-ray showing that he or she has broken a bone, otherwise he or she must not be believed. Nor is it to deny that a blindingly painful headache can be experienced without any objective sign of it being able to be detected in the brain of the sufferer, or anywhere else. But it is to note, as a matter of practical reality as the tribunal of fact, the absence of objective signs for this constellation of consequences, except for two, as follows. (I interpolate that I respectfully do not classify as an objective observation responses by the plaintiff to sensory testing.)
The first objective finding relied upon by counsel for the plaintiff was said to have been seen by Dr Pillemer, the orthopaedic surgeon who gave evidence in her case. He spoke of muscle wastage in the vicinity of the little toe of her right foot, which showed, in his opinion, that the plaintiff had suffered nerve root irritation (TT 490.30). That was observed in February 2017, over two years after the date of the accident.
The second objective finding, which was observed through the administration of a radioactive liquid that was injected into the body of the plaintiff, was of a mild increased uptake of the radiotracer in, most significantly, "the spine of the right scapula" (the phenomenon was said to be observable at other locations as well). That was said by her counsel to be an objective indication of injury to the shoulder blade of the plaintiff, and the muscle attached to it (see generally TT 589). Those findings were originally recounted in an imaging report based upon a consultation of 29 July 2016, and which became Exhibit LL.
Those signs, I agree, must be taken into account. In particular, I appreciate that Dr Cummine, the orthopaedic surgeon qualified by the defendants, did not undertake the examination of which Dr Pillemer spoke, namely closely observing the feet of the plaintiff, which is said to have permitted Dr Pillemer to find the muscle wastage that Dr Cummine had not observed (TT 505.37). Rather, Dr Cummine only made observations of the calves of the plaintiff (TT 508.33).
To recount the submissions about the significance of these findings briefly: while counsel for the plaintiff argued that Dr Pillemer's findings should be preferred over those of Dr Cummine's, on the basis that there was a more comprehensive examination undertaken by the former doctor, senior counsel for the defendants resisted that, on the basis that the latter doctor had only been informed of complaints about pain in the plaintiff's buttocks and right calf (TT 510.18).
With respect to the findings from the injection, senior counsel for the defendants acknowledged that the plaintiff may have experienced some pain in her shoulder or scapula, and indeed injury there. But his straightforward reply was that any injury to that part of the body of the plaintiff simply could not be sheeted home to the accident. This proposition was supported, he submitted, by the absence of any complaint about a shoulder-related issue before September 2015, almost eight months after the accident.
Resolving those submissions: in my opinion, the observation of Dr Pillemer as to the state of the muscles near one of the little toes of the plaintiff may be accepted, as far as it goes. Even so, I think that as a matter of simple human experience the disjunction between (on the one hand) the number and intensity of the disabilities of the plaintiff claimed to have been caused by what would ordinarily be in itself a very minor accident, and (on the other hand) the paucity of physical signs supportive of them is a factor that I am entitled to regard as important.
Separately, I also accept that there was indeed a physical sign of injury to the shoulder of the plaintiff. But the deeper underlying question about that objective sign is how that injury can safely be sheeted home, on balance, to the accident.
Fourthly, when thinking about possible aetiologies other than a physical jolt, it is true that, as at the day of the accident, the plaintiff was physically fit and well. But there had been some signs of psychological problems that may, I think, not be irrelevant to this claim (of course, I do not recount them in any sense pejoratively).
As I have earlier recounted, the plaintiff had, some four years before the accident, left a much more demanding and remunerative position, because of the psychological distress that she had suffered arising from the death of her father, and because of her desire to be closer to her family.
She had, between approximately May 2011 and October 2011, been medicated with antidepressants.
At the time of the accident, she was working only 25 hours a week, despite her physical fitness.
She was also performing a set of duties that were relatively undemanding intellectually, despite her tertiary education, and undoubted intelligence demonstrated in the witness box.
Although I accept on balance that she had taken some preparatory steps to returning to the pharmaceutical industry, she remained content as at the date of the accident to fulfil a role that was significantly less mentally and emotionally demanding. It was also far less remunerative than her previous employment.
None of that, of course, is to say that I am affirmatively satisfied that the plaintiff was, at the date of the accident or at the time of the hearing before me, suffering from some unspecified emotional or psychological difficulty. But it is to say that her previous psychological issues, not grossly removed in time from the accident, and bound up in some senses in the employment in which she was still engaged at that time, do play a role in my analysis of the question of causation.
In summary then, as a second contingent finding, I am not satisfied on the balance of probabilities that all of the injuries claimed by the plaintiff arise from the jolt. I should make clear that I accept on balance that she believes that she has suffered (to use that term very broadly) over the past many years, and that she herself may ascribe that suffering to the events of 7 January 2015. But I am not satisfied on balance that the jolt is the basis for all of its claimed consequences. And, even for the purposes of this contingent analysis, it is impossible with any clarity safely to ascribe some proportion of them to the event that underpins the claim, for the purposes of s 5E of the CLA.
In short, even if the plaintiff had established that the accident occurred as she claimed, and even if she had established a breach of duty of care, I would nevertheless dismiss the claim on the basis that causation, as a factual matter, has not been established on the balance of probabilities.

Overarching adverse factual matter

Having set out the primary basis and two contingent bases upon which I have rejected the claim of the plaintiff, I now compendiously refer to a factual matter that informs the first and third bases. I am discussing it globally and incorporating it into each of them now, simply in order to avoid unnecessary repetition.
In a nutshell, it is no exaggeration to say that the claim of the plaintiff is that she is terribly disabled. Evidence was given of the severe limitations under which she has lived for many years, and the very significant pain and suffering that she endures. Her romantic partner and her mother gave written and oral evidence to similar effect. That position was firmly put forward, and firmly maintained. In oral evidence, the plaintiff was asked whether she wished to change or update any aspect of her evidentiary statement, and she did not. More specifically, she was also asked repeatedly in cross-examination whether she had engaged in "travel[ling] long distances" (TT 151.41 and following). The proposition was denied, as one would entirely expect in conformity with this claim of gross disability.
In fact, over the past several years, the plaintiff has engaged in a great deal of overseas travel. Indeed, it is an amount of overseas travel that, I believe, an absolutely well person based in Australia would find quite physically and emotionally taxing. To go further: in the year 2018 she spent almost as much time travelling overseas as she did at home, despite the proffered proposition that she was someone whose physical activity, well-being, and enjoyment of life had been grossly curtailed by the consequences of the accident.
And yet none of that was conveyed in any of her evidentiary statements, almost none of it was revealed to treating or evaluating medical professionals, and none of it was spoken of spontaneously in cross-examination until it was revealed by questioning by senior counsel for the defendant. The same may very largely be said of her partner and her mother.
Furthermore, some domestic travel - including a holiday in the Snowy Mountains during which skiing was attempted - was undertaken in the months after the accident, at a time when the evidentiary statements of the plaintiff and her partner spoke of her requiring rest and recuperation. And yet none of that material either was spoken of, let alone detailed, until it was revealed in cross-examination.
Separately, the psychiatrist called by the plaintiff, Dr Dinnen - who opined that the plaintiff suffered from a persistent depressive disorder rendering her unfit for work - was not informed of the extensive overseas travel that the plaintiff had embarked on weeks prior to her seeing him, nor that she was intending to engage in more travel again, shortly after that appointment.
Senior counsel for the defendants submitted that that was an undoubtedly important lapse on the part of the plaintiff that could have influenced his expert medical opinion. Resisting such a proposition, counsel for the plaintiff pointed to the consultation of the plaintiff with Dr Zeman on 14 May 2018, and the fact that the plaintiff did disclose her previous trip to Qatar in October 2016. And any consequence arising from an adverse assessment of the credibility of the plaintiff was further resisted by her counsel on the basis that the medical experts were ultimately provided with the evidence of overseas travel at the hearing before me, and they nonetheless very largely maintained their positions as to her level of disability.
Resolving those competing submissions: it is true, as counsel for the plaintiff submitted, that the plaintiff has mentioned to some medical professionals whom she has seen some measure of domestic and overseas travel. Even so, the paucity of references, and the glaringly incomplete picture that was presented not only to those medical professionals but also to me by way of her evidence-in-chief, is, inevitably, a matter of serious concern.
Separately, I appreciate that overseas travel can, at one hypothetical extreme, involve climbing Mount Everest; at the other, it may involve spending languorous days at a luxurious spa. And of course there are countless permutations in between those two extremes.
Nor have I forgotten that there was evidence placed before me that travel was suggested by a psychologist consulted by the plaintiff, as a way of bringing some enjoyment back into her life.
Even so, in my respectful opinion, looking at the picture as a whole, the logistics of the sheer quantity and duration of the travel undertaken by the plaintiff - it is not necessary to descend to any further level of detail here, because all of it was ultimately not disputed as having taken place - simply cannot be "squared away" with the level of disability of which she and those who love her have spoken.
I regret to say that the question of the credibility of the plaintiff - and to a lesser extent, those who love and support her - must inevitably be assessed to some degree adversely in these proceedings. To do otherwise would fly in the face of the ultimately conceded evidence that was revealed in cross-examination, and not before. And as I have written, that adverse evaluation plays an important role in my failure to be satisfied that the accident occurred as the plaintiff claims, and that she has suffered injuries as she claims.

Further contingent analysis?

Other contingencies, such as the question of possible contributory negligence pursuant to s 5R of the CLA, the true availability of a return to work in the pharmaceutical industry, and the question of the effect of the CLA upon any compensation based upon the need for care of the plaintiff, were also helpfully placed before me by counsel. But I respectfully think that my analysis - featuring as it does a primary basis for rejection, two bases for contingent rejection, and an overarching adverse assessment of credibility of central concern - has proceeded sufficiently.
And speaking more generally about contingent findings, I appreciate that it would usually be incumbent upon me to make a contingent assessment of damages, in case my failure to be satisfied of liability is incorrect. But in the unusual circumstances of this case - my failure to be satisfied that the accident occurred as the plaintiff claimed, my failure to be satisfied of the proposition that her injuries were caused by the (putative) accident, and my significant negative finding about her credibility, based on objective matters that are simply inconsistent with the claim - I am unable to see how I can sensibly do so.

Conclusion and orders

In short, for the foregoing reasons, I am not satisfied on balance that the claim of the plaintiff against either defendant has been established. Accordingly, my first order is: 1. Verdict and judgment for the defendants.

Subsequent determination of costs as necessary

I propose that any dispute about the question of costs be determined in Chambers, unless either party submits that an oral hearing is required. My associate will be in touch with each of the legal teams to propose a concise timetable for the filing and serving of written submissions about that topic as necessary.
In accordance with my first order, my very preliminary thought - spoken of now merely for the assistance of the parties - is that the plaintiff must pay the costs of the defendants on the ordinary basis.
For the time being my further order is: (2) Costs reserved.

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: 17 July 2020

Civil Liability Act 2002(NSW)ss 5B, 5C, 5D, 5E, 5F, 5R

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