Trigas v The Owners - Strata Plan No. 10579 - [2019] NSWDC 473 - NSWDC 2019 case summary

District Court of NSW|2019-05-24

Introduction

The second plaintiff, Super Start Batteries, operates a battery supply business at one of the units on a strata title property at 76 Hume Highway, Lansvale. The first plaintiff, Mr Trigas, is a shareholder and director of Super Start and is the manager of its business. The defendant is the owners corporation for the strata plan in respect of the property and, as such, the common property is vested in it.
It is convenient to refer to the first plaintiff as Mr Trigas or the plaintiff and to the second plaintiff as Super Start.
In early July 2014 some of the trees along the boundary fence on the property were being removed by a contractor. At about 5:30pm on 9 July 2014 Mr Trigas was closing up the battery business and went out to look for a forklift belonging to the business. He knew that his brother, Arthur Trigas, had been using the forklift in connection with the tree-felling and had it on the common property. Arthur Trigas told the plaintiff that he would return it and the plaintiff turned to go back to the business unit. He then heard Arthur yell "tree". He could not see anything, but started running. He says he was struck by a branch of the tree as it fell and he fell to the ground.

Legislative regime

The legislation governing the defendant at the relevant times was the Strata Schemes Management Act 1996 (NSW) (SSMA). The SSMA provided that an owners corporation is established on registration of a strata scheme: s 8. The owners corporation consists of the owners from time to time of the lots in the scheme (s 11) and one of its key functions is to "properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation": s 62(1). The owners corporation may employ such persons as it thinks fit to assist in the exercise of its functions: s 13(1).
The owners corporation may be assisted in the carrying out of its management functions under the SSMA by the executive committee of the owners corporation established under Part 3 and by a strata managing agent appointed under Part 4: s 9.
An owners corporation is to appoint an executive committee (s 16) and, subject to irrelevant exceptions, decisions of that committee are taken to be decisions of the owners corporation: s 21.
The procedural requirements for meetings of the executive committee of a strata scheme are contained in pt 2 of sch 3 to the SSMA: s 20(2). Clause 6(2) in sch 3 provides: (2) An executive committee of a strata scheme that is not a large strata scheme must give notice of its intention to hold a meeting at least 72 hours before the time fixed for the meeting: (a) by displaying the notice on the notice board, or (b) if the owners corporation is not required by the by-laws to maintain a notice board, by giving written notice (which may be done by electronic means) to each owner and executive committee member.
Clause 6(3) provides that the notice must specify when and where the meeting is to be held and contain a detailed agenda for the meeting.
Clause 9(3) in sch 3 provides that the "quorum for considering and voting on a motion submitted at a meeting of an executive committee that has 2 or more members is at least one-half of the members".
Records and minutes must be kept by the executive committee (cl 12), all resolutions passed at a meeting must be recorded in the minutes (cl 15) and a copy of the minutes must be given to each owner and displayed (cl 16).

The relevant facts

An annual general meeting of the defendant was held on 8 September 2011. [1] It was resolved at the meeting that five of the owners, including Arthur Trigas, be appointed as members of the executive committee and that the committee could not decide anything over the value of $10,000 with the exception of the patching of the driveway and fencing which were then underway. [2]
On 24 January 2012, Sydney Tay, an employee of All Suburbs Strata Management, the strata managers appointed in respect of the strata plan, sent an email to Anthony Padjan, the strata title underwriter. [3] Mr Tay noted that the fencing works had been progressing nicely but that it had been "discovered that a number of trees had to be removed because of the roots proximity to the boundary." He said that they were awaiting Council approval. On 9 February 2012, Mr Tay wrote to the executive committee informing it that approval had been given for the removal of two trees. [4] He continued: "Please advise if the executive committee would like us to undertake the removal, or if the Executive Committee has a contractor in mind to complete this work. Please ensure all contractors are appropriately licenced to undertake the work concerned and that they have current insurances and ABN registration etc…"
One of the members of the committee, Ivan You, replied [5] suggesting that Mr Tay get a quote and compare it with one obtained by Arthur Trigas explaining, "I think we agreed at the last meeting that we should always have several quotes before proceeding".
Nothing appears to have happened in connection with the trees until June 2014. In the meantime, the process to be adopted when undertaking work on the common property was discussed at a meeting of the executive committee which was held on 27 June 2013. The minutes for that meeting record the following resolution: [6] "2. Quote and Invoice Process It was agreed:  that all future work conducted from 27/6/2013 onward has at least 3 committee member signatures authorising works to take place.  All quotes after they have been authorised by at least 3 committee member will be submitted to Strata Management who is responsible for doing the required background checks on the company.  All works that have a cost of $3000 and above must have a quote accompanied by a scope of works.  Invoices for payment must first be authorised by at least 1 exec committee member. The quote is then to be submitted to Strata management who is then responsible for checking the invoice matches with the authorised quote before payment is made.  Emergency situations where there is immediate business disruption may be handled by any single exec committee member." (Without alteration)
The minutes also recorded that "Al's Fencing" was the company responsible for the construction and installation of the gates and fencing.
The owners of the lots elected five members to the executive committee for the following year at an annual general meeting held on 20 August 2013: Johnny Tang, Theofanis (Theo) Trigas, Arthur Trigas, Raymond Wong and Ivan You. [7] It was resolved that there be no restrictions on the committee's decision making power "with a majority of Executive Committee to sign off on the work order." At the following meeting of the executive committee, Arthur Trigas was appointed to act as representative of the owners corporation for liaison with the strata manager. [8]
The processes actually followed by the executive committee in respect of works to be undertaken on the site were described in evidence by Arthur Trigas: [9] "Q. How were these discussions held? A. Well, I'll say like the committee will turn up, committee members. Sometimes it wasn't everybody, around about three of us will discuss what needed to be done and we look at quotes, we look at the job, they'll elect me project manager, go ahead and do it. So we usually walk around, we see the complex, like the concrete driveways the committee said, "Look, it's got problems with the forklifts going up the driveways, it's bouncing around, people are losing loads, what can we do here," we discuss what needed to be done, what can we do. Johnny from unit 14 he got a quote, I got concreters to come in, we looked at the quotes, we were introduced to people. You get the green light from the committee members, go ahead and do it. So, the committee was always - we're having meetings onsite concerning projects and relations to things like that. Q. This, as you described the meetings that were held onsite, were there any record kept? A. It was verbal, it was a lot of verbal."

Arthur Trigas also gave evidence about the process by which the trees finally came to be removed. First, he explained that there had been a quote for the work in 2012, but that it was only to cut down about six trees and stump grind them, not to remove the stumps entirely. [10] Next, he explained that in early July 2014 there was an onsite meeting of three members of the executive committee (Ivan You, Raymond Wong and Arthur Trigas) . [11] He also said that "Danny from unit 1" was there, but there was no Danny elected as a member of the executive committee. The only evidence of the identity of the owner of Lot 1 is in the minutes of the annual general meeting held on 22 August 2012. [12] There, a Hui Fang Chen is shown as the owner of that lot.
In addition to these people, Albert Darwiche of ABS Recycling was present with a Blake O'Brien. [13] Mr O'Brien was there as a potential contractor for the tree removal. He was asked questions by the members of the committee about his charge rate [14] and Arthur Trigas asked him about his experience, machinery, ABN and business name. [15]
There was then a discussion amongst the committee members [16] following which Danny said, "Arthur, you got to project manage this one", and the others said, "Yes, we agree to that". [17]
Mr Blake commenced the tree removal work on Saturday, 5 July 2014, shortly after the meeting of the committee members.
There were a number of defects in this procedure: first, there was no notice of any meeting or any agenda; secondly, there were no records or minutes kept of it (and consequently no minutes sent to the owners or displayed); thirdly, there was no signature of any member of the executive committee authorising the works, let alone three signatures.
The issue is whether those defects affect the "decision" of the members of the committee to undertake those works and, in particular, for Mr O'Brien to undertake the works. More particularly, the question is whether that was a "decision of the executive committee" within the meaning of s 21 of the SSMA so that it is taken to be a decision of the owners corporation.

Consideration

The question here is whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the conditions imposed on meetings of the executive committee: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]. In Owners Strata Plan No 57164 v Yau (2017) 96 NSWLR 587 the Court of Appeal held that the failure to adhere to the notice requirements in cl 6 of sch 3 of the SSMA did not invalidate a decision made at a meeting of an executive committee.
The defendant relied on Quarante Pty Ltd v Owners Strata Plan No. 67212 [2008] NSWCA 258, a case involving a dispute over the authority of a strata manager to engage a company to undertake work on the strata property. The owners corporation had delegated to the manager (DPS) the functions of the chairman, secretary and treasurer of the executive committee. The manager argued on that basis that this meant that it had the same authority as the executive committee. The executive committee consisted of one person, a Mr Standford. Sackville AJA (with whom Campbell and Bell JJA agreed) rejected that argument. His Honour said: "104 The delegation of authority to DPS was expressly made by reference to s 28(1)(b) of the SSM Act, which allows the owners corporation to delegate to a strata managing agent "any one or more of its functions specified in the instrument". The delegation of the functions of the chairperson, secretary and treasurer of OC to DPS was not effective to delegate the broader range of functions that could be exercised only by a duly convened and properly conducted meeting of the Executive Committee of OC. The mere fact that Mr Stanford, who occupied all the three individual offices, could have convened a meeting of the Executive Committee and caused it to pass a particular resolution, does not mean that the function of the chairperson, secretary and treasurer were co-extensive with those of the Executive Committee. They were not." (Emphasis added)
The highlighted part of this passage, taken at a general level, is inconsistent with the decision in Yau. However, in Quarante the Court did not consider the precise issue determined in Yau but considered the issue of what functions had in fact been delegated. In Quarante there was no meeting at all. For those reasons, Quarante is distinguishable and I am bound to apply Yau and must conclude that the failure of the executive committee to comply with the notice provisions in the SSMA did not affect the validity of the decision to engage Mr O'Brien to cut down the trees on the property.
The reasoning in Yau also extends to the failure of the executive committee to take notes and to record its decision in minutes, which are then distributed and displayed, and so those matters did not affect the validity of the decision of the executive committee.
Finally, although the executive committee did not follow the procedure it set for itself in its meeting of 27 June 2013 that was, again, a procedure rather than a limit placed on its authority to make decisions. The authority to engage contractors to undertake work on the common property was delegated to the executive committee by the owners corporation without any limitation.
For those reasons, the decision by the executive committee is taken to have been made by the owners corporation and the owners corporation is responsible for the consequences of the decision.

i. What was the duty?

In the amended statement of claim the plaintiff claimed that the: "… defendant, its servants or agents owed a duty of care to occupants and visitors to the premises to ensure that any individual or company it engaged to carry out potentially dangerous activities within the property, were carried out by skilled and competent people and in accordance with appropriate occupation health & safety standards."
This allegation was followed by the assertion that Mr Trigas' injuries were caused by two matters: first, the failure by the tree-felling individuals to have a safe system of tree-felling in accordance with competent occupational health and safety practice and, secondly, the negligence of the defendant, its servants or agents.
The particulars of the second asserted cause of the plaintiff's injuries, amongst others, was the failure by the defendant to engage individuals "to carry out tree lopping (sic) activities who were neither experienced or qualified to do such activities".
As the occupier of the common property, the defendant owed the plaintiff and other persons on the common property a general duty to take reasonable care to avoid a foreseeable risk of injury. The question whether that duty was breached must be determined by reference to ss 5B and 5C of the Civil Liability Act 2002 (NSW) (CLA). Before addressing those matters, it is necessary to deal with the defendant's contention that its duty of care was delegated to Mr O'Brien as the contractor engaged to undertake the tree felling operation.

ii. Was the duty of care delegated?

The delegation of a duty to take reasonable care to persons on a property was considered by the New South Wales Court of Appeal in Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16. Hodgson JA, with whom Gyles AJA and Nicholas J agreed in this respect, said: "53 There is no doubt also that this occupier's duty of care is "delegable", in the sense that it may be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier may escape liability."
This passage makes several matters clear. First, the relevant question is not whether there has been a delegation of a duty to take reasonable care. Rather, it is whether the duty to take reasonable care has been fulfilled by engaging another party to carry out a particular function. Secondly, the duty of care is not necessarily fulfilled in that way simply by taking reasonable steps to choose the contractor. It may be that something more must be done, such as to confirm "that the person does take appropriate steps." That point exposes the flaw in the defendant's delegation argument.
I accept the first part of the defendant's argument in this respect, namely, that the plaintiff has not established that reasonable steps were not taken to choose the tree-felling contractor. This was undertaken by Arthur Trigas with the authority of the committee: 1. Arthur Trigas knew that the insurance policy of the owners corporation required works done on the common property to be carried out by tradespeople who were appropriately qualified and insured; [18] 2. he asked the contractor about his qualifications and was told that he was qualified to do tree-felling work; [19] 3. he carried out inspections of the contractor's machinery in order to check his ability to do the work; [20] 4. he asked the contractor for his invoice books to confirm that he had an ABN and a business name and was given them; [21] 5. he discussed the contractor's experience with him. [22]
There was no evidence to suggest that the contractor was not suitably qualified.
Arthur Trigas also took steps to confirm that the contractor undertook the work in a safe manner. Indeed, his evidence was that he undertook at least some of the responsibility for that. He said that he did not discuss safety with the contractor and that a plan for ensuring the site was safe was left to him. [23] Initially, he had installed barriers and safety cones. They were mainly on the Hume Highway [24] (the main road from which the site is accessed) and these were removed on Tuesday, 8 July 2014 [25] when the site got "very hard to control." [26] This was because the barriers effectively prevented easy access to and from the site and was blocking traffic. There were no barricades to prevent people from coming near to where the trees might fall and no signs to indicate tree felling operations. [27] However, Arthur Trigas said that he was there to keep people away from the area where the work was going on. [28]
In his evidence, Mr Darwiche of ABS Recycling said that the safety barriers put up at the front of the complex consisted of plastic mesh and that there was a sign that said "No Entry". [29] In addition, there was a rope with plastic triangles that had been put up between two columns of the carpark. [30] Mr Darwiche said that he had seen a person walking under this rope.
Arthur Trigas said that the operations were obvious. Given the way in which it was being conducted that must be accepted as true. He explained that an excavator was used to push the trees over and then a chainsaw was used to cut them up. [31]
This evidence suggests that the responsibility for ensuring the safety of persons on the site during the tree-felling operation did not devolve to the contractor, but rather, that it was undertaken by Arthur Trigas. The defendant argued that he undertook that role without any authority. I reject that argument because he was expressly authorised to "project manage" the operation. The scope of that management was not clearly outlined, however that does not matter for two reasons. First, it is apparent that the committee authorised Arthur Trigas to take whatever steps were required to have the trees removed. This implicitly included any steps required towards the safety of people on the site. It did not matter if he did that by taking steps to see that the contractor undertook safety measures or whether he did that himself. Secondly, it does not matter because if the committee did not give Arthur Trigas this responsibility itself, then it took no steps to see that the works were undertaken safely; that is more likely to have been a breach of its duty of care than what was done by Arthur Trigas.
The real issue is whether the way in which Arthur Trigas acted was in breach of that duty.

iii. Was there a breach of duty of care?

The question of breach of duty is determined by reference to ss 5B and 5C of the CLA. They provide 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, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. (Emphasis in original)
The structure of these provisions makes it essential to determine the relevant "risk of harm". It is only once that is identified that it is possible to consider what precautions should be taken by a reasonable person in the defendant's position: Uniting Church in Australia Property Trust (NSW) v Miller [2015] NSWCA 320; 91 NSWLR 752 at [106].
The risk of harm here was the risk of a person being injured by a tree as it was being felled by persons working on the common property of the premises. There is no issue that that risk was foreseeable and that it was not insignificant.
The issue is what precautions a reasonable person in the position of the defendant would have taken against the risk of harm. The question is to be answered in a prospective way: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [126] (Hayne J). It must also be answered by reference to each of the matters in s 5B(2).
The plaintiff particularised the defendant's negligence as follows: "… i. Engaged individuals and/or a company to carry out tree lopping activities who were neither experienced or qualified to do such activities. ii. Failed to provide appropriate warnings to the first plaintiff that a tree or part thereof was about to fall. iii. Failed to ensure that warning signs were put in place at the area where the tree-felling activity was taking place. iv. Failed to ensure that the individuals or company engaged to carry out the tree felling activities had in place an appropriate system to ensure the safety of members of the public and tenants who may be in the area. v. Failed to ensure that tree felling activities taking place at the said industrial complex were carried out in a safe and proper manner. vi. Failed to have in place barriers or other methods to keep passers-by clear of the tree felling operations. vii. Failed to have in place any or any adequate staff to keep passers-by away from the tree felling operations. viii. Failed to have in place adequate supervision at the time of the tree felling operation and in particular when a tree branch struck the plaintiff. ix. Failed to ensure that the plaintiff did not enter in to the area where the tree-felling activity was taking place. x. Failed to request and or direct the plaintiff to leave the area where the tree-felling activity was taking place. xi. Failed to have cognisance of the unsafe area where the tree-felling operations were taking place."
There are difficulties with most of those particulars. First, there is no evidence that the tree-fellers were either inexperienced or unqualified. Secondly, the assertion that there were no "appropriate" warnings or systems, no "adequate" supervision or staff and that the contractors did not ensure that the work was conducted in a "safe and proper" manner all beg the question. They do so by looking back from the point of view of the accident rather than prospectively. That is not the correct approach.
The final particular, a failure to have cognisance is not only difficult to understand, but not established on the evidence.
On the other hand, the assertion that the defendant ought to have had in place barriers or other methods to keep passers-by clear of tree-felling operations or to have warning signs in place do not suffer from that problem.
The defendant had barriers and had used them early in the tree-felling process. These consisted of plastic mesh and a rope with plastic triangles. On Arthur Trigas' evidence it was a significant burden to move the mesh barrier from time to time. In addition, according to Mr Darwiche, both the rope and the mesh were tied between posts. There was no evidence that there were such posts in all of the areas in which tree-felling was taking place, or in a place sufficiently distant from each tree to create a barrier around the area in which that tree could land when felled. While it is hypothetically possible for such barriers to have been erected, that possibility depends on there being a pole or other vertical thing for the barrier to be attached to. The evidence was not sufficient to show that there was such a thing and so I cannot be satisfied that it was in fact possible to erect these barriers to minimise the risk of harm occurring as a result of the tree-felling operation.
However, the same could not be said about the safety cones which had also been used when the excavator was being moved and the warning sign that had been used earlier. Although it is difficult to judge the probability of harm arising in the absence of these cones and the sign, it was not insignificant given the traffic in and out of the premises (judged by the number of parked vehicles on the site shown in the photographs) and the likely seriousness of harm caused by a falling tree was very high.
In those circumstances, I conclude that a reasonable person in the position of the defendant would have placed safety cones in the area of the tree-felling, as well as a warning sign to alert pedestrians and vehicles to the area in which a felled tree could fall and to present at least a psychological barrier to entry into that area. The defendant failed to have any warning sign or cones in or around the tree-felling and that failure was a breach of its duty of care.

Did the first plaintiff suffer damage as a result of the defendant's breach of duty?

The plaintiff bears the onus of proving, on the balance of probabilities, that the defendant's failure to take reasonable care in respect of the tree-felling operations was a necessary condition of the occurrence of the harm suffered by him when he was hit by a tree: Strong v Woolworths Ltd [2012] HCA 5; (2012) 246 CLR 182 at [20]. The question here is whether the plaintiff has established, to the requisite standard, that he would not have entered the area in which he was injured if the defendant had erected barriers around that area or had erected a warning sign.
Although that question is a subjective one, the plaintiff could not have given evidence about what he would have done, or not done, except to the extent that what he said went against his interest: sub-s 5D(3)(b) CLA. The question of proof of this issue in light of sub-s 5D(3)(b) is explained in the following authorities.
In Neal v Ambulance Service of New South Wales [2008] NSWCA 346 Basten JA said: "[40] Whatever the real purpose of the provision, the issue for determination is how a court is now to identify what course the plaintiff would have taken, absent negligence. That assessment might include evidence of the following: (a) conduct of the plaintiff at or about the relevant time; (b) evidence of the plaintiff as to how he or she might have felt about particular matters; (c) evidence of others in a position to assess the conduct of the plaintiff and his or her apparent feelings or motivations, and (d) other matters which might have influenced the plaintiff. [41] Properly understood, the prohibition on evidence from the plaintiff about what he or she would have done is of quite limited scope. Thus, the plaintiff cannot say, "If I had been taken to hospital I would have agreed to medical assessment and treatment". Indeed, as the Negligence Review recognised, such evidence would be largely worthless. However, the plaintiff might have explained such evidence along the following lines: "I recall on the trip to the police station that I began to fell less well; my state of inebriation was also diminishing; I began to worry about the pain in my head …." [42] That evidence (entirely hypothetical in the present case) would not be inadmissible. If accepted, it might provide a powerful reason for discounting any inference as to future conduct drawn from the past refusal of treatment. It would constitute evidence as to the plaintiff's position, beliefs and fears. Because an inference would need to be drawn from that evidence, no doubt the court would take into account the likely response of a reasonable person in such circumstances. That is consistent with the Act requiring that the matter be determined "subjectively in the light of all relevant circumstances". …"
In Roads & Maritime Services v Grant [2015] NSWCA 138 Emmett JA said: "[179] The primary judge found that, with sufficient notice of the location of the nose of the median strip, Mr Grant would not have clipped it. That is a finding that, but for the absence of a "Keep Left" sign, Mr Grant's motorcycle would not have come into contact with the nose, thereby causing him to lose control of the motorcycle. While his Honour found that Mr Grant was negligent (by his exceeding the speed limit by some 20 km/hr), his Honour also found that, were it not for the negligence of the Authority, the accident would not have occurred. However, his Honour gave no reasons and referred to no facts for that ultimate conclusion. [180] In order that a fact may be regarded as established, the evidence should be such that it is more probable that it exists than it does not. A fact cannot be regarded as established unless its existence is at least a reasonable inference from some matter provided in evidence. It is not sufficient that there be some ground for conjecturing that the fact exists. There must be evidence affording ground for treating it as existing as a matter of inference, and not of conjecture. The existence of a fact may be inferred from other facts, when those facts make it reasonably probable that it exists. However, if they go no further than to show that it is possible that the fact may exist, the existence of the fact does not go beyond mere conjecture. If there is no piece of evidence that, taken at its highest, is more than equally consistent with the existence and with the non-existence of a fact, then it cannot be treated as established." (Citation omitted)
The Court must be affirmatively satisfied of what would have happened based on inferences drawn from the established facts and not simply rely on conjecture or a choice between available possibilities: Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305; Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [47].
There was no evidence here similar to the type of evidence referred to by Basten JA in Neal. However, there was other evidence from which inferences may be drawn as to what the plaintiff would have done had there been safety cones in place at the time of the incident.
First, as submitted by him, the plaintiff's history supports the view that he is driven, a high achiever and very hard worker. He takes great pride in his business, enjoys it and the success it has brought him and does not plan to stop working. The plaintiff takes great care of his business and exercises close control over it.
Secondly, there is evidence of the plaintiff's own conduct during the days preceding the incident. He was aware during the course of the week leading up to the incident that there was tree-felling going on. That much was not in dispute and, if it had been in issue, would have been resolved against the plaintiff as it was obvious. The footage of the incident reveals that there were fallen trees lying around the common area, an excavator had been used, a chain saw was used to cut up the trunks and branches and a forklift and truck had been used to move the cut up wood.
The plaintiff himself acknowledged that he knew his brother had used the plaintiff's forklift for the purposes of the tree removal. Knowing this, and knowing that there was tree-felling occurring, the plaintiff had, prior to the day of the incident, gone out to the yard to retrieve the forklift.
Thirdly, the footage of the incident is telling and deserves a detailed description.
The footage is taken from some height looking out from what I infer is the roof of one of the units towards the boundary of the property on the Hume Highway. In the foreground there is a bare, dirt yard in which there is a type of large bin. In the mid-foreground there is what appears to be a forklift, vegetation including a number of standing trees and a number of large logs or tree trunks lying on the ground. At the far part of the property there is an excavator situated right behind a tree and just on the inside of the boundary fence. The excavator has a large light on at the front of it shining in the direction of the camera by which the images were captured.
The time stamp shows 5:20 pm. It is getting dark but not yet dark. The sky in the background is clear and has some colour suggesting that it is around sunset. Given the date, I find that sunset had occurred or was about to occur.
The plaintiff is shown in the foreground walking across the yard in the direction of the excavator. The light on the excavator is shining directly towards him. The plaintiff then changes direction slightly and walks around what appears to be a large part of a tree lying on the ground. He then turns to his left towards the forklift.
The plaintiff's brother can be seen towards the boundary fence, about five metres to the left of the excavator. He then walks towards the forklift carrying what appears to be a heavy object. The shape of the object suggests that it is a chainsaw but it is unnecessary to reach any conclusion about that.
The two brothers then stand near each other next to the forklift for about 45 seconds. During this time, the tree immediately in front of the excavator starts to rock back and forth quite violently. Other trees are swaying as though blown by a fairly strong wind, but not to the extent of the tree in question. It is likely that, at this point, the tree is in contact with the excavator which is in the process of pushing it over. Given the position of the excavator, there was a high likelihood that, when the tree was pushed over, it would fall in the vicinity of the place where the plaintiff had just walked in order to reach the forklift.
The plaintiff's evidence was that he did not see the excavator. I do not accept that. He walked directly towards it; it had a large, bright light on facing towards him and it was in action. It is common experience that large earth-moving machinery such as that shown in the footage are noisy when in operation. Even allowing for the noise of the peak-hour traffic on the Hume Highway, in circumstances where there had been tree-felling on the property for a number of days, it is highly unlikely that the plaintiff did not hear the excavator and that he did not see it.
In spite of that, the plaintiff walked directly into an area in which there was clearly tree-felling activity. There were cut up tree trunks on the ground, he walked around one of them. The plaintiff did so to retrieve his forklift so that he could close up his business and go home.
Indeed, after talking to his brother for about 45 seconds, the plaintiff turns around and walks over the same area to return to his unit. When the tree that is being pushed by the excavator starts to fall, the plaintiff looks around and moves quickly to his right (towards the left of the image). He then dives over the log that is lying on the ground and appears to avoid being hit by the falling tree. On a close review of the footage it appears that he hits his leg on the tree that was lying on the ground. He then rolls on the ground and comes to a stop and remains still for some time.
In my view, this evidence suggests that the plaintiff was more likely to have ignored any warning device or barrier placed in the vicinity of the tree-felling operation and that he would have gone to get his forklift. Whatever be the case, it undermines the plaintiff's case that the defendant's negligence caused his injury and I find that he has not discharged his onus to prove causation. For that reason the plaintiff's case must be dismissed. As Super Start's case was reliant on the success of the plaintiff's case, its case too, must be dismissed.
Although this conclusion disposes of the proceedings, I will follow the usual course and go on to consider briefly the remaining issues including the question of damages: Chief Commissioner of State Revenue v Adams Bidco Pty Ltd [2019] NSWCA 34 at [3]; Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; Nevin v B & R Enclosures Pty Ltd [2004] NSWCA 339 at [74]-[75] and Wolfenden v International Theme Park Pty Ltd [2008] NSWCA 78 at [3]-[4] and [53].

Contributory negligence

The first of the other issues to resolve is whether the plaintiff failed to take care of his own safety and, if so, that failure contributed to the damage suffered by him. The same principles in s 5B CLA that are applicable to determining whether a person has been negligent also apply to this issue: s 5R; Gordon v Truong; Truong v Gordon [2014] NSWCA 97 at [14] - [16].
The defendant argued that the plaintiff failed to take reasonable care for his own safety in that he failed to wait until the excavator was no longer operational before approaching the area where his forklift was located. I accept that argument. The general operation of tree-felling itself presented an obvious risk of injury on the property. That risk was particularly present when the excavator was in operation. The trees were being pushed over by that machine. Further, the risk to any person or object was increased in proportion to the proximity of that person or object to the excavator. In those circumstances, any reasonable person who was aware that the excavator was in operation at the time would have taken the precaution of not approaching the excavator until it ceased operating. The plaintiff failed to do that and so failed to take reasonable care for his own safety.
I assess the plaintiff's contributory negligence at 30%.

What was the damage suffered by the first plaintiff?

The plaintiff claims that he suffered injuries to his left knee, his right shoulder and his lower back and that these injuries have had a psychological impact upon him.
There is no issue that the plaintiff in fact suffered an injury to his left knee and that much is evident from the CCTV footage I have described above. The issues between the parties in respect of the physical injuries suffered by the plaintiff are first, the extent of injury suffered in connection with the left knee; and secondly, whether the shoulder, back and psychological injuries were caused by the incident in question.
Although each of the parties relied upon a number of reports from expert witnesses, no expert was called to give oral evidence and there was no joint report by any of them. Regrettably that means that the Court is left to resolve conflict between different expert opinions with very little assistance.
The plaintiff also claims that as a consequence of his physical and psychological injuries he has suffered both non-economic and economic loss. The economic loss takes several forms. First, that he has suffered loss in the form of gratuitous domestic care provided for him by his nephew and his wife, Emily Trigas, in the period immediately following the incident; secondly, that he will incur ongoing care costs on a commercial basis; thirdly, that he has incurred certain out of pocket expenses in connection with his injuries; and finally that he will in the future continue to incur out of pocket expenses in that regard.
Super Start claims that as a result of the plaintiff's injuries, the plaintiff was unable to fulfil all of his duties as an employee of the business and so it was required to incur the expense of engaging another employee to fulfil those duties.
On consideration of the evidence as a whole, including the testimony of the plaintiff and his wife, I find that the plaintiff has significantly exaggerated the consequences of the incident. This undermines to a significant extent the weight that can be given to the medical reports relied upon by him. Further, this exaggeration undermines his claims in respect of domestic care, both past and future. As a consequence, I have assessed the extent of the plaintiff's injury in accordance with the CLA as 26% of a worst case scenario, rejected his claim for past gratuitous care and future domestic care and reject in its entirety the claim by Super Start. On the other hand, I am satisfied that most of the past expenses claimed by the plaintiff were reasonably incurred as a result of his injuries. I do not accept that the expenses relating to the plaintiff's mental health were reasonably incurred as a result of the accident, but otherwise accept the amounts claimed.

Diagnoses

The evidence reveals the following diagnoses of the plaintiff's injuries: 1. having a "left knee injury including grade 2 sprain injury of the anterior cruciate ligament and other discrete injuries" (Dr Thomson, Exhibit1, p 62); 2. development of low back pain with right sided sciatica (Dr Dan, Exhibit1, p 67); 3. injury to the left knee "resulting in fractures to the medial femoral condyle, lateral femoral condyle and lateral tibial condyle". Pain, stiffness, instability and weakness. Low back injury with symptoms in the right leg (Dr Assem, Exhibit1, p 73); 4. chronic left knee pain with undisplaced avulsion fracture of the medial femoral condyle posteriorly, chronic low back pain, post-traumatic stress disorder with depression, anxiety and insomnia (Dr Tran, Exhibit1, p 114); 5. major depressive disorder with the presence of trauma related anxiety symptoms such as flashbacks, palpitations, emotional numbness and breathing difficulties, together with chronic pain syndrome stemming from the accident (Dr Nguyen, Exhibit1, pp 133-134); 6. soft tissue contusion and bony contusion of the left knee, together with a sprain injury to the anterior cruciate ligament with a possibility of avulsion factures (Dr Maxwell, Exhibit 11, tab 2, p 18); 7. contusion of the left knee and sprain of anterior cruciate ligament with the course of progress complicated by the development of depression and anxiety (Dr Eikens, Exhibit 11, tab 3, p 33).
In order to determine the actual injuries and loss suffered as a result of the accident it is necessary to briefly examine some of the plaintiff's conduct after the accident.
The plaintiff continued to work after the incident using crutches to assist him with walking. He did not consult his general practitioner until 4 August 2014. His GP, Dr Tran, noted that at that time the plaintiff was in pain and limping with crutches for mobility.
On 5 August 2014 Super Start Batteries engaged David Cork in the full time position of National Sales Manager. Clause 1.3 of the letter engagement provided: "1.3 You will be required to perform these duties and assist in National Operations as directed by the Managing Director. You will also be required to carry out Trade Shows and any interstate travel required and any duties that the Managing Director cannot physically carry out due to injury"
This clause does not support the plaintiff's evidence that Mr Cork was engaged because the plaintiff himself was unable to carry out trade shows and interstate travel. It was not admitted to establish that fact; however, there appear to be three distinct sets of duties envisaged by the clause: first, to assist in national operations as directed; secondly, to carry out trade shows and interstate travel; and thirdly any duties the plaintiff cannot carry out due to injury.
The plaintiff's evidence was to the effect that he could no longer carry out trade shows or to travel interstate because of the difficulty he had in carrying batteries that could be up to 20kg in weight. Mr Cork's evidence however, suggested that he was travelling up to 80% of his time and that he always had a trolley to carry batteries. I find that Mr Cork was in fact engaged to carry out an expanded role that included, but went well beyond what the plaintiff had been doing, and that the real reason for this was that the plaintiff did not have the time to do it and to conduct the rest of the business. That finding effectively disposes of Super Start's claim.
After seeing Dr Tran the plaintiff undertook physiotherapy and chiropractic treatment and massage in respect of his left knee after having had an x-ray and MRI scan and advice from an orthopaedic surgeon, Dr Do, that he should undertake conservative treatment.
The plaintiff saw Dr Tran again in late August, mid-October, mid-November and mid-December of 2014 and then again not until the middle of August 2015. At that time, he reported to Dr Tran that he had left lower limb, thigh/leg pain and that he had just come back from a three week holiday in Alaska and the United States.
The plaintiff again saw Dr Tran in mid-October 2015 presenting with right lower back pain radiating to his right buttock and shooting down to his right foot. He reported similar pain when he saw Dr Tran in May 2016.
In May 2016 the plaintiff was on a business trip to China when he fell over.
On a number of occasions during October 2017 through to early 2018 the plaintiff complained to Dr Tran that he was suffering from low back pain with right sided sciatica.
In approximately September 2015 the plaintiff started exercising in a form known as cross-fit. Effectively, that involved resistance and cardio-vascular exercises under the supervision of a personal trainer. The records of each of the sessions attended by him over approximately 15 months were in evidence. [32] These sessions included the plaintiff performing exercises such as Bulgarian split squats and crab-crawls. There is no need for me to describe these exercises beyond saying that it is common experience that they are easier to say than to perform. The defendant made much of the plaintiff's ability to perform these exercises and I accept that, to some extent, this ability was inconsistent with his claims. For example, it would be difficult to perform a plated Russian twist if you could not rotate your lower spine without great pain. Similarly, the fact that the plaintiff was recorded as being able to "run" is inconsistent with his stated inability to walk without pain. I reject the plaintiff's oral evidence that this was no more than a fast walk or a jog, but even if I accepted it, it makes it difficult to accept that his injuries persisted into 2016.
On the other hand, the mere fact of performing some of these exercises does not mean that the plaintiff was not injured. He may well have performed dumbbell squats, for example, but the difficulty in the performance of that exercise must depend on the weight of the dumbbell. In any event, the fact that the plaintiff was exercising establishes, in my view, that he was making an effort to improve his ability rather than malingering.
There are a number of other inconsistencies and exaggerations in what the plaintiff said which weigh heavily against accepting his evidence of his injuries as accurate. These include: 1. He told Dr Eikens that he was in "excruciating pain" and that his "left leg was bent the wrong way" and his knee very swollen and that he went to see his GP the day after the accident (Exhibit 11, p 23). However, he only saw Dr Tran on 4 August 2014 and went to work every day after the accident. 2. The plaintiff said that it took him an hour and a half to two hours to flip a mattress at home (an unbelievable claim in itself) but conceded that it would only take a matter of minutes: T61.35-50; 62.1-11. 3. He included in his particulars of injury as at May 2019 that he was suffering the same problems from July 2014 and told Dr Assem in October 2018 that he had difficulty bending, kneeling, squatting or repetitively negotiating steps and that his left knee felt unstable when on uneven ground (Exhibit 1, pp 73-74) and that he had trouble carrying his work bag (Exhibit 1, p 70) and gave evidence that he does not walk on grass because of his concern for his left knee: T103.43-45. A surveillance video of the plaintiff in September 2018 shows that this was not true. Dr Eikens considered that the footage was inconsistent with the plaintiff's claims of ongoing injury and so do I. 4. The plaintiff told Dr Assem that he could no longer continue martial arts training (Exhibit 1, p 69). He had trained in karate and had been a state champion in his youth; however, he was no longer doing that at the time of the accident and, in any event, he admitted that he had unrelated injuries that would make such training difficult: T113.44-47.
The plaintiff's wife gave evidence about the plaintiff's condition and the help that she gave him as a result. Importantly, she gave no evidence to corroborate his claim that he suffered psychological injury including depression and I infer that her evidence would not assist him in that respect. Otherwise, her evidence was also exaggerated. It is difficult to imagine, for example, how it might have taken her half an hour to dry her husband after he had showered, or half an hour to dress him. Even if the plaintiff were completely comatose or bed-ridden those tasks would not take a fraction of that time. I give her evidence very little weight.
I have difficulty accepting much of the broader opinions given in the medical reports relied on by the plaintiff. The history on which they were based came from the plaintiff and was, to some extent, exaggerated, and in some cases, incorrect. I accept the opinion of Dr Maxwell, however, that was given after review of the surveillance video referred to above. Dr Maxwell considered, on the basis of the radiology and other reports that there was a soft tissue contusion and burning contusion of the left knee, together with a sprain injury to the anterior cruciate ligament with a possibility of avulsion factures, however, that this injury had resolved by September 2018.
I am not satisfied that the other injuries arose as a result of the accident in July 2014. The complaint of back pain did not arise until late in 2015 and appears in any event to have been focussed on the plaintiff's right side. The plaintiff had previously suffered an injury to his right knee which, according to the cross-fit records, was still causing him difficulty. In light of that, I accept Dr Maxwell's opinion that there was no relationship between the back complaint and the accident.
There is very little evidence about the right shoulder. I accept that there could have been some jarring of the shoulder (and elbow) as the plaintiff landed when he jumped to avoid the tree; however, significant doubt about the cause and extent of these complaints in the evidence of Dr Eikens leads me not to be satisfied that there was any significant injury at all caused by the accident.
The plaintiff's evidence about his psychological condition is also questionable. I accept that he sought treatment for his mental health but that was not until February 2017. While a delay in seeking treatment, or even a delay in the onset of psychological symptoms does not necessarily disprove causation, it is a matter for the plaintiff to establish the causal link between the accident and his mental health. Taking into account this delay, the fact that the plaintiff ceased treatment for some time in 2017 and that his physical injuries, on my findings, had more or less resolved by that time, together with the fact that there is no corroboration of the psychological symptoms, I am not satisfied that any mental health issues suffered by the plaintiff were caused by the accident.
After considering all of the evidence, and taking into account my view that the plaintiff exaggerated many of his complaints, I assess the injury suffered by the plaintiff as 27% of a most extreme case. That equates to $63,500.

Past out-of-pocket expenses

The claims for past expenses were itemised in Exhibit 20. The principal dispute in respect of the claim for past expenses involved the rehabilitation and exercise expenses. Those were in the amounts of $2,024 and $4,940 respectively. Even though I have found that the plaintiff has exaggerated his complaints, I do accept that it was reasonable for him to undertake the treatment claimed and to have engaged in the cross-fit training. While it is clear from the exercises performed that this training was aimed at whole body fitness rather than just rehabilitating the plaintiff's knee, I do not consider that it is unreasonable to take an holistic approach to rehabilitation. However, I do not accept that it was reasonable to engage in psychological treatment as I am not satisfied that the applicant's mental illness was caused by the accident. For that reason, I deduct the amounts of $200 and $120 from the amounts claimed and find that reasonable past expenses amount to $19,594.38.

Future out-of-pocket expenses

I have found that the plaintiff's injuries have resolved and so find that there will be no future out-of-expenses required as a consequence of those injuries.

Past gratuitous care

In order to be entitled to an award of damages in respect of past gratuitous care, the plaintiff must establish that there was a reasonable need for the services to be provided, that need arose solely because of the injury to which the damages related and that the services would not have been provided to the plaintiff but for the injury: s 15(2) CLA. In addition, the services must have been provided for at least six hours per week and for a period of at least six consecutive months: s 15(3). This cannot be established by guessing or averaging the number of hours provided: Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [91].
Here, the plaintiff claimed that he received assistance from his nephew and from his wife. The nephew did not give evidence and I cannot be satisfied that he did in fact provide any services to the plaintiff within the meaning of s 15 CLA.
The plaintiff's wife gave evidence that she assisted the plaintiff by driving him to and from work, his rehabilitation and medical appointments and that her nephew helped with heavy things such as carrying the shopping and lifting mattresses. She said that she provided between two and four hours assistance for up to eight months. [33] In cross-examination the plaintiff said that his wife drove him to work (25 minutes each way), bathed him at night (15-20 minutes), and drove him to hydrotherapy twice per week (45 minutes). [34]
In light of the gross exaggeration in some of the evidence discussed above, I do not accept the evidence of Emily Trigas except to the extent that she drove the plaintiff to work for a short period (and home again), helped him bathe at night and drove him to hydrotherapy once or twice per week. However, on any view, that assistance did not come to a total of six hours per week and even if I accepted that the plaintiff's nephew helped by flipping the occasional mattress and carrying shopping from the car, the threshold in s 15(3) is not met.
Accordingly, the plaintiff's claim for past gratuitous care must be rejected.

Future care

As I have found that the plaintiff's injuries have resolved, there is no need for future care. In any event, the plaintiff has not established two important matters: first, that gratuitous care was not available in the future; and secondly, he has not established any basis for the rate of commercial care claimed, namely, $45 per hour.
In summary, if the plaintiff's injuries were caused by the defendant's negligence, I would award the following by way of damages: Non-economic loss $63,500.00 Past out-of-pocket expenses $19,594.38 TOTAL $83,094.38
Rounding up to $84,000 and reducing the award to account for contributory negligence the plaintiff would be entitled to an award of $58,800.

Conclusion

The defendant was negligent in failing to place barriers and warning signs in the vicinity of tree-felling activity taking place on the common property of the property at 76 Hume Highway, Lansvale. However, the plaintiff has failed to establish that the injuries suffered by him when a tree fell near him on 9 July 2014 were caused by the defendant's negligence. As a consequence, his claim must fail and so too must the claim by the second plaintiff, Super Start. There will be a verdict for the defendant, and the plaintiffs will be ordered to pay the defendant's costs.

Endnotes

Exhibit 1, p3.
Exhibit 1, p4.
Exhibit 1, p29.
Exhibit 1, p25.
Exhibit 1, p25.
Exhibit 1, p14.
Exhibit 1, p16.
Exhibit 1, p19.
Transcript D2.153.34-49.
Transcript D3.191.13-21.
Transcript D3.192.50-193.15.
Exhibit 1, p8.
Transcript D3.193.15-50.
Transcript D3.200.41.
Transcript D3.201.43-202.15; 202.35-39.
Transcript D3.203.
Transcript D3.208.46-50.
Transcript 232.29-32.
Transcript 239.36-38.
Transcript 196.50; 197.1-7.
Transcript 202.2-4.
Transcript 202.35.
Transcript 216.10-14.
Transcript 211.10.
Transcript 209.45-50.
Transcript 215.41.
Transcript 211.20-24.
Transcript 210.50-211.2.
Transcript 273.29.
Transcript 273.33.
Transcript 210.35.
Exhibit 15.
Transcript 135.18.
Transcript 56-58. 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: 16 September 2019

Strata Schemes Management Act 1996(NSW)

Trigas v The Owners - Strata Plan No. 10579

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Judgment (18 paragraphs)

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Cases Cited (20)

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