Sibraa v Brown

Nature of the Case 2The Appellant and the Respondent were next-door neighbours. The Respondent injured herself on 8 May 2007 when, in the dark and barefooted, she tripped over some welded wire mesh that was lying on the front lawn of the Appellant's house. Following a trial in the District Court at Albury, his Honour Judge Neilson held that the Respondent's injuries arose from the negligence of the Appellant. He awarded damages. 3The Appellant appeals against the finding of negligence. Appeals against two elements of the judge's assessment of quantum, and against the judge's assessment of contributory negligence, were abandoned at the hearing of the appeal. 4Mr J Sexton SC and Mr D Priestley appeared for the Appellant. Mr RD Roberts SC and Ms K Oldfield appeared for the Respondent.

Facts 5The Appellant and the Respondent lived in Finley, near Albury in New South Wales. At the time of the accident, the Respondent was a widow aged sixty who lived alone. In the street in which they lived the Appellant's house was number 11, and the Respondent's house was number 13. By 2007, they had been neighbours for many years. 6The Appellant was the father of three children. In December 2006 the Appellant's partner left him, and went to live in Deniliquin. The three children went with her. In the early part of 2007, two of the children, Joel (then aged fourteen) and Shaylee (then aged thirteen) moved back to the Appellant's premises. About that time, a great niece of the Appellant, Brooke (then aged fourteen), also began to live in his premises. Brooke was the granddaughter of the Appellant's sister, Ms Norma Gowan. By April 2007, another of the Appellant's sons would stay at the house on Friday nights. 7The Appellant at that time worked for the RTA based in Narrandera, but working in West Wyalong. In the early part of 2007 it was his practice to leave Finley early on a Monday morning and return on the following Saturday afternoon. This meant that the children, including Brooke and Shaylee, were living alone in the premises during the week. After the children had moved back to live in the Appellant's house, Ms Gowan asked the Respondent if she could "keep an eye open for the children to make sure 'that there was nobody hanging around at night when they were there by themselves". The Respondent agreed to do this. 8In late March or early April 2007, two police officers came to the house in the evening. Ms Gowan also came there, and asked the Respondent to attend. Thereafter, the level of supervision that the Respondent gave to the children increased. She slept at the Respondent's house from either the Sunday or the Monday night until the Appellant returned on the succeeding Saturday. While she was there she carried out some domestic tasks, and supervised the children in their carrying out of other domestic tasks. On those occasions when she was sleeping at her own home on the Sunday evening, the Respondent would knock on her bedroom window around 4.30am as he was going to work, so that the Respondent could go to his house to commence the supervision of the children. 9On Saturday 5 May 2007, Shaylee told the Respondent, after they had had some differences of opinion, that they, meaning the children, did not wish the Respondent to come back to stay in their house. 10On the following Monday, the Respondent did not receive any knock at her bedroom window, and did not go next door. 11On Tuesday 8 May 2007, the Respondent heard Shaylee crying. She could not attract Shaylee's attention from her own yard, so went next door. 12At the entrance to the Appellant's house is both a glass door, and a security door. When the Appellant went to work each week it was his practice to lock the security door, and take the key with him. Thus, the only way of entering the Appellant's house was through the back door. When the Respondent heard Shaylee crying, she went to the back door of the Appellant's house and spoke to her. Shaylee said that Brooke was going to run away from home and was hiding from her mother. Shaylee asked the Respondent to go with her to pick Brooke up. 13The Respondent and Shaylee drove away in the Respondent's car, located Brooke, and brought her back to the Appellant's house. The judge found that during the trip back, "... there was a conversation between the plaintiff, Shaylee and Brooke about the two young teenage girls' running away. They proposed hitchhiking to Deniliquin. The plaintiff advised them not to do so because that was a very dangerous thing to do for two young teenage girls. The girls, when they arrived at number 13, told the plaintiff that they would let her know later what they intended to do. They suggested to the plaintiff that she went into her house and watched the 'soaps', of which she was a fond audience member, and that after that they would let the plaintiff know what their intention was. The plaintiff went into her home at number 13 from her car and Shaylee and Brooke went next door to number 11. At the end of watching 'Home and Away', at 7.30pm, the plaintiff went to number 11 and it is on that visit that she fell and sustained personal injury." 14The Appellant's house is a single storey bungalow. The fence at the front of the property has a gate in its centre, from which a path leads to the front door. Another path runs parallel to the front of the house. It goes from the path that leads from the gate to the front door towards the right hand side of the dwelling as one looks at it from the street. That path is cluttered by pot plants, a water feature, and various other objects. A palm tree is immediately adjacent to it. Another path then leads down the right hand side of the house. The house has no driveway, and the path down the right hand side of the house provides the only means of gaining access both to the backyard and the backdoor. As the judge found, "... if one entered the house through the front gate and wanted to go to the back of the house, it would be the quickest route to cut across the lawn, to take the hypotenuse of the right-angle triangle formed by the pathway to the front door, the path from the front door to the side passage and the shortcut." 15The Appellant kept his lawn extremely well, and his garden well tended. The judge observed that, "one could almost think that the defendant kept his lawns somewhat in the fashion of a greenkeeper towards a bowling green". 16On the day of the accident, a piece of wire mesh lay on the ground in the front yard of the Appellant's house. It lay quite close to the beginning of the path that leads down the right hand side of the house. The judge found that the mesh in question: "... appears to be concrete reinforcing mesh. It is certainly made of iron or steel and appears to be much thicker and much more durable than, for example, chicken wire." 17There was no explicit finding about the size of the mesh. The Respondent gave evidence that a piece of mesh depicted in a photograph of the Appellant's front lawn appeared to be the same size as the wire mesh she saw on 8 May. Mr Sexton submits that the piece of mesh was 1m x 0.5m. Mr Roberts did not dispute that estimate. Examination of the photograph does not provide any ground for believing it is wrong. I will proceed on the basis that, at least approximately, that submission is correct. 18The Respondent had previously seen either that mesh or a similar mesh on other parts of the Appellant's lawn, or on his nature strip. When she entered number 11 on the afternoon of 8 May to talk to Shaylee, she saw the mesh on the lawn in the location in which it was when she tripped over it that evening. She also noticed it when she and Shaylee left to return to number 13 in order to get into the Respondent's car to go to look for Brooke. She noticed grass seed lying underneath the mesh. 19The judge inferred that: "... the defendant had laid grass seed in the area underneath the mesh in order to try to get the grass to grow back, which had been eroded away by people using the shortcut." 20By 7.30pm on the day of the accident it was dark. At the time, there was an exterior light, described as a brass carriage lamp, by the side of the front door. It was turned off when the Respondent entered the property. She went to the front door, intending to talk to the girls. She knocked at the front door. The girls opened the front door, and turned on the outside light. The judge found: "The plaintiff did not tell me of any conversation but, if a conversation started, it was soon interrupted. Lights were seen either by the girls or by both the girls and the plaintiff. Those lights were of a car entering [name] Street. One of the girls or both of them said, 'Quick, quick, that could be Paula,' told the plaintiff to go around to the back of the house, shut the front door and turned off the light. Paula is, of course, Brooke's mother. Brooke had run away from home. No doubt the girls perceived that Brooke's mother was on the lookout for her daughter and it would appear that the girls wished to 'lay low' from her mother: hence the need to shut the door, to turn off the light, to pretend that, for example, no-one was home or that there was nothing untoward going on at number 11." 21The judge's finding about the mechanism of the Respondent's injury was that, after the girls had told the Respondent to go around to the back of the house, and had shut the door and turned off the light, the Respondent: "... did not use the concrete pathway but walked around on the lawn and, when she did so, she had forgotten that the steel mesh was on the lawn. She placed her right foot on the mesh and realised it was there. She could feel the mesh with her bare right foot. However, before she could do anything further, she started to fall. She told me that her left foot was caught on the mesh and that caused her to fall. She told me that she felt that her toes were caught in the mesh. As she was falling forward, the plaintiff put her hands out in front of her to try to stop the extent of her fall, to try to brace herself from the fall. However, her left shoulder struck the downpipe ... near the right hand edge of the front of the defendant's residence." 22The judge gave consideration to whether the medical evidence about some abrasions or scratches to the Respondent's feet cast any more light on the cause of the accident, but found they did not: "I do not know whether they were on the sole of a foot or the sole of each foot or whether they were on the dorsa of the feet or the dorsum of one of the feet, nor do I know if they were to the area of the foot between the metatarsal tarsal joints and the ankle or whether they were over the toes themselves. However, one would have thought that if the injury were only to a toe, the registered nurse who made the notes would have indicated the toe in question. The only finding I can positively make is that in some fashion the plaintiff's left foot, which was the trailing foot at the time, became caught on the mesh causing her to fall forward. Whether that was caused by her toes going between gaps in the mesh or by her left foot going under the mesh is extremely difficult to say. If one, for example, knew that there was a scratch or abrasion on the dorsum of her left foot, that would clearly indicate that her left foot went underneath the mesh. 23The judge also found: "... that the plaintiff was distracted by what occurred at the front door at 7.30pm on 8 May 2007. She had not put her shoes on and one therefore would infer it was only to be a short visit. She did not go around to the back as she normally did but knocked at the front door merely to speak to the girls through the front door and did not seek to enter the house. The girls and the plaintiff herself were then distracted by the lights of a car turning into [name] Street. The girls sought to lay low. They shut the door, turned out the light and told the plaintiff to go around to the back. She complied with their request, forgetting that the mesh was there. She herself told me that as she was heading towards the side passage, which would have been on her right as she traversed the lawn, she was looking to her left to look at the lights of the vehicle turning into [name] Street. She was distracted by what was occurring and failed to realise that the trap or danger was there." (The side passage was, in fact, on the plaintiff's left, and she was looking to her right, but nothing turns on this minor slip.) 24The plaintiff's evidence in chief about the mechanism of the fall was: "Q. As you cut across, did you feel something? A. I felt the wire under my right foot and the next thing I knew, I was falling. Q. Having felt the wire under your right foot, what, if anything, did you notice about your left foot? A. It was caught. Q. What was it caught on? A. The mesh. HIS HONOUR Q. You told me you didn't have shoes on-- A. Yes. Q. --did you have any socks on? A. No. Q. So you were barefooted? A. Yes. Q. When you said your foot was caught, what did you feel? Did you feel something underneath the sole of your foot or between your toes-- A. No, I felt-- Q. --or what did you feel? A. The - I felt the scratch, I felt the mesh between my toes. Q. This is of your left foot? A. Yes. Q. When you said your left foot was caught, you see, it had to catch some part of your foot. What part-- A. My toes. Q. --was it the sole, the top? A. My toes." 25That evidence was elaborated somewhat in cross-examination but not altered in substance: "Q. You stepped on it firstly with which foot? A. With my right foot. Q. Which foot do you say caught up? A. My left foot. Q. So when you placed your right foot on the mesh, you remembered that it was there then, is that right? A. Yes. Q. But you kept walking, correct? A. I was already in the process of falling. Q. And your toes caught up in it, is that right? A. I believe that's what happened because my feet were both scratched. ... Q. As you were walking in that area, were you looking down where you were walking or not? A. No, I was looking to see where the car was. Q. Could you even see the ground beneath your feet or was it too dark? A. It was too dark. ... Q. ... You're walking towards the path that goes down the side of the house, is that right? A. Walking across. Q. Right but you - if you - you're walking as if you're wanting to go to your left but you're looking as if you - to the right, is that right? A. I looked around to see where the car was. Q. So you looked to your right? A. Yes. Q. When you were intending to go left. A. Yes. Q. Were you looking for a car when you had your fall? A. No, I'd looked back around. Q. You don't seem too sure about it. A. I looked - as - I glanced around to see where the car was and then I looked back to go around the corner. Q. As you were walking in that area Ms Brown, you knew that you could trip on something at any minute because you couldn't see where you were walking. Isn't that right? A. I suppose it's right. I wasn't thinking."