New South Wales District Court CITATION: SKIMMINGS v SAVINS & SAVINS (No 1) [2007] NSWDC 175 HEARING DATE(S): 10, 13-14 August 2007 EX TEMPORE JUDGMENT DATE : 17 August 2007 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: Stood over to Newcastle at 9.30 on 30 August 2007 for final orders. CATCHWORDS: Occupiers' liability - Duty of care of owners of residential premises LEGISLATION CITED: Civil Liability Act 2002 Jaenke v Hinton [1995] QCA 484 CASES CITED: Jones v Bartlett (2000) 205 CLR 166 Neindorf v Junkovic (2005) 222 ALR 631 Taber v New South Wales Land and Housing Corporation [2001] NSWCA 182 Murray Leigh SKIMMINGS PARTIES: Kenneth Reginald SAVINS Joan Patricia SAVINS FILE NUMBER(S): Coffs Harbour Plaint 48 of 2006 COUNSEL: R Harrington - Plaintiff J Sharpe - Defendants SOLICITORS: Lee James Egan - Plaintiff Thompson Cooper Lawyers Pty Ltd - Defendants JUDGMENT 1 The plaintiff suffered injury to his left wrist on 28 September 2005. He claims his injury was the result of negligence of the defendants. 2 At the time of the injury the plaintiff lived with his parents at 4 Duke Street, Goonellabah, a suburb of Lismore. The defendants resided at 6 Duke Street. The relationship between the defendants and the plaintiff and the plaintiff's parents was that of very close neighbours. They visited each other's homes on a regular basis. To facilitate these visits a path was constructed between the dwellings, the plaintiff assisting in its construction. 3 In September 2005 the plaintiff's father became seriously ill. Friends were to visit and stay at the home at 4 Duke Street on the night of 28 September 2005 and their car was to occupy the driveway of that property. 4 By arrangement with Mrs Savins the plaintiff was permitted to park his car on the grass in front of the defendants' house at 6 Duke Street. 5 In accordance with this arrangement, at 7 o'clock on 28 September 2005 the plaintiff parked his car on the grass and took the path that had been specially constructed to provide access between 6 Duke Street and 4 Duke Street.It was dark. The plaintiff said he tripped on a bale of wire mesh placed in his path of travel on the defendants' property. The dimensions of the bale of wire, he said, were one metre in height and 30 centimetres in radius. 6 There are a number of features of the evening that were agreed between the parties and many that were not. It was agreed that the fencing wire had been given to Mr Savins by Mr Errol Skimmings the plaintiff's father, although at the time of his fall the plaintiff did not know this. It was agreed that the bale of wire was on the defendants' property on the night of 28 September 2005. It was agreed that the wire had been used at times when Mr Savins bought lambs from the farm which he worked at Inglewood in Queensland to prevent them from straying into 4 Duke Street. The wire was placed on the boundaries of the properties for this purpose. It was agreed that the security light attached to the front of the defendants' property was not switched on. 7 It was not agreed that the wire was on the footpath providing access between the two dwellings. 8 According to Mr Savins it had been placed on a pile of discarded timber to be taken to the farm when he left at 5am on 29 September 2005. 9 According to Mrs Savins it had been placed on timber brought from the farm by Mr Savins for the purpose of construction of an extension at the rear of their house. She agreed that it had been placed there to be taken to the farm the next morning. 10 The area of the property identified by Mr and Mrs Savins as the resting place for the wire overnight was not on the footpath used by the plaintiff. 11 There was evidence which was not contested that Mr Savins spent a month at a time at his farm at Inglewood followed by about four days at the dwelling at 6 Duke Street. The defendants now live at Inglewood. LIABILITY 12 There are two issues arising out of the question of liability. The first relates to the credit of the parties, that is the determination of which of the versions of events of 28 September 2005 I accept. The second is whether, if I accept the plaintiff's version, there was negligence on the part of the defendants. Issue 1 - Credit 13 There were a number of areas of disagreement between the parties which they asserted would assist in determining the credit issue. I will deal with each of those issues separately. 14 The plaintiff said that after his fall he had moved the wire on to his parents' property At that stage he had been unaware that Mr Skimmings had given the wire to Mr Savins. Half an hour after his fall, he returned to 6 Duke Street to ask Mr Savins to drive him to hospital so that he could obtain medical attention to his injured wrist. On his return he noticed that the wire had been moved onto the defendants' property. Garbage bins which, at the time of his fall were adjacent to the path, had also been moved. There was evidence that the garbage was collected the following morning. 15 The defendants agreed that Mrs Savins was responsible for moving bins for garbage collection but she said that she did this at 5am the next day when Mr Savins left to return to Inglewood. The defendants denied having moved the wire at any stage. 16 There was disputed evidence concerning conversations alleged to have taken place after the accident. The plaintiff said he told Mr and Mrs Savins that he fell over the wire and that he had hurt his wrist. He said that Mrs Savins told him that Mr Savins had put the wire there to take back to the farm the next day. 17 This was denied by both defendants. Their version was that the plaintiff when asked by Mrs Savins how he had injured his wrist told her that he had tripped near the garbage bins but said nothing about the presence of the wire. 18 Mr Savins said that the plaintiff had said nothing about how he fell and he had not asked the plaintiff how he fell. 19 Mrs Savins said the next day she went to see Mrs Skimmings who told her that the plaintiff was in great pain and that he had told her that he had tripped on wire on the footpath. She said that she had responded that Ken had put the wire with the other things to load on to the truck. 20 Both Mr and Mrs Savins had provided a statement to an insurance investigator. Those statements are in evidence as Exhibit 5 in respect of Mr Savins and Exhibit 6 in respect of Mrs Savins. 21 Mr Savins was confused about the time at which he learned that the plaintiff was claiming that he had fallen on wire. In his statement he stated that it was one month after the accident, that is when he returned from his one month period at his farm. To the court he said it was two months after the incident. 22 Mrs Savins in her statement at paragraph 14 referred to a conversation with Mr and Mrs Skimmings in which she said they told her what had happened. She said nothing of her alleged response. 23 There was conflicting evidence from Mr and Mrs Savins concerning the precise location of the wire on 28 September 2005. Mr Savins said he had placed it on a stack of wood which he was to take back to the farm and which he did in fact take back to the farm when he left at 5am on 29 September. He said that the wood had been unloaded from the truck on the afternoon of 28 September, that it was 10 to 11 feet long and had been intended to be used for the extension at the rear of the house. He said he had placed the wood in the area of the lawn shown in photograph Exhibit 4A. Having unloaded the truck, which contained not only this wood but other items including sheep and a pen, he said he put the truck in the garage and went upstairs to the living quarters of the house. 24 At an unspecified time he rolled up the wire and placed it on top of the wood and he went back inside the house. By this time, he said, it was dark. When he loaded the truck the next morning with the wood and other items the wire was still on top of the wood where he had placed it. 25 In his statement he said that his practice on arriving at 6 Duke Street after one month at his farm was to take items from his truck and put them on the lawn and later put them away. His practice when returning to the farm was to leave the items to be loaded onto the truck in the same area of the lawn and to place them on the truck immediately before leaving. There was no reference in the statement to the stack of wood. 26 He was tested in cross-examination because his evidence had indicated that he had simply unloaded the wood for the extension to the house, placed the wire on it and reloaded the same wood when leaving. At this point Mr Savins changed his evidence and said that the wood on which the wire had been placed had been off-cuts of timber that had been used for the construction of the proposed extension and that it was wood of various lengths. 27 Mrs Savins said nothing of this stack of wood in her statement. To the Court she said that she recalled seeing Mr Savins unload the timber and three fuel drums. She said he definitely did not bring sheep on that occasion. Mrs Savins described the timber as two stacks, each of two planks of wood, 4 feet by 2 feet by 18 feet. This wood she said was placed on the lawn in the area identified on photograph Exhibit 4A. 28 It appeared from Mrs Savins' evidence that the wood remained there, rather than being put away as was Mr Savins' stated general practice. According to Mrs Savins, Mr Savins loaded the truck with the drums and wire and drove off leaving the timber on the lawn. 29 Mrs Savins gave evidence that she had visited Mrs Skimmings at 5.30 to 5.45pm on 28 September 2005 to check if it was still necessary for the plaintiff to park on her lawn because she had not seen the visitors arrive. 30 She said it was twilight at this time. She said there was nothing on the footpath when she did this, in particular, there was no wire there. She said Mr Savins at this time was in the house taking a shower. Mrs Skimmings did not recall this visit. 31 There was nothing of this visit in Mrs Savins' statement. 32 This is an important piece of evidence because, if true, it established that there was no wire on the footpath just over one hour prior to the plaintiff's fall. However, the statement reads in paragraph 12: On 28 September 2005 the friends that the Skimmings were expecting had not arrived by nightfall and Murray had not parked his vehicle on our lawn. I never thought any more about it. 33 I have already referred to the claims and counter-claims concerning what was said or not said by the parties immediately after the incident. These are of little assistance in determining the credit issue since each party mostly denied the other's claims. 34 Mr Savins did agree with one proposition concerning the conversation at the time the plaintiff entered their home and asked him to drive him to the hospital. He agreed that at this time the plaintiff told him that he had tripped on the wire and that Mrs Savins had responded that Mr Skimmings had given them the wire so that it could be taken to the farm. I asked that the question be put to Mr Savins a second time because I was unsure if he understood its precise terms. He agreed a second time that this response had been made. 35 There was evidence of some animosity by the defendants towards the plaintiff after the accident. Although they denied that this existed, they did not act on his request for details of their insurance company, the reasons for which were unexplained. When he pressed for details of their insurance company Mr Savins ordered him from the property and asked him not to return. 36 There was evidence that the plaintiff at the time of his fall was suffering from a psychological condition and that he had also taken medication on the day of the incident. In the few days prior to the incident he had committed some acts of self-mutilation affecting his left arm. He agreed that on 28 September 2005 he had taken eight Panadeine Forte tablets, four in the early hours of the day and four at 12.30pm. It was suggested that his psychological condition coupled with this medication had rendered the plaintiff unsteady on his feet causing his fall and causing him to be less than accurate in his recollection of how the fall occurred. 37 It was contended that I should accept the plaintiff because his evidence was straightforward and consistent throughout. I accept that this was so and I also noted that on a number of occasions he made concessions against his interest and he downplayed rather than overstated the consequences of his injury. For this reason I do not accept that his psychological condition or the medication affected him to the point where his evidence should be regarded as unreliable. 38 Similarly Mrs Savins' evidence was given in a straightforward fashion. 39 Mr Savins' evidence was confused and inconsistent. I was urged for the defendants to disregard his evidence entirely and to decide the credit issue solely on the basis of the facts related by Mrs Savins. In my view it would be inappropriate to do so. Both of them were called in defence of the claim. 40 Further, the core of their evidence was essentially the same, namely that the wire had been placed on wood situated on the lawn. There were significant problems from that point with the evidence of the defendants which diverged significantly in the detail. Mr Savins referred to off-cuts of timber; he said nothing about drums of fuel. Mrs Savins talked about full length pieces of timber that were unloaded and left on the lawn and not put away, as was stated by Mr Savins to be his usual practice. They were not taken back to the farm. 41 There was no reference in Mrs Savins' statement to her twilight visit to Mrs Skimmings. This absence leads me to conclude that this visit did not in fact take place. If it did take place, it was at twilight. Mr Savins said that by the time he rolled up the wire and placed it on the timber it was dark and therefore this task would have been carried out after the alleged visit. 42 The concession by Mr Savins indicated that the plaintiff did in fact tell the defendants at the outset that he had tripped on wire on the footpath. This is contrary to their denials and those denials are not accepted. I have already referred to their animosity towards the plaintiffs. 43 For these reasons I prefer the plaintiff's evidence. Findings 1.Either Mr and Mrs Savins, most likely Mr Savins placed the bale of wire on the footpath providing access between the two dwellings. 2.The security light was not operating because it had not been turned on. 3.The plaintiff fell when he tripped on the wire. 4.At least Mrs Savins of the defendants was aware that the plaintiff would be using the footpath on the night of 28 September 2005. Issue 2 - Negligence 44 It was argued that there was no neglect by the defendants. It was stated that the plaintiff should fail because, unable to see in the darkness, he should have taken greater care when walking on the pathway. 45 In making these submissions the defendants relied on decisions such as Jones v Bartlett (2000) 205 CLR 166, Taber v New South Wales Land and Housing Corporation [2001] NSWCA 182, and Jaenke v Hinton [1995] QCA 484. The decisions of Jones v Bartlett and Taber dealt with the principle that occupiers of a residential premises owe a duty of care to entrants upon their properties but that they are not required by that duty to maintain their properties in a condition that would render them totally risk free. 46 In other words, the authorities established that it must be expected that, as a fact of every day ordinary life, the physical condition of domestic premises may contain some defects which their occupiers are not obliged to search out or to remedy, even though they may present a foreseeable risk to entrants. 47 To the authorities relied upon by the defendants may be added the decision of the High Court in Neindorf v Junkovic (2005) 222 ALR 631 which confirmed this principle. 48 In this case the plaintiff does not complain of a defect in the physical condition of the defendants' property. He complains that they had carelessly left a bale of wire in his path and that they did turn on the security light on the property. 49 In this respect the claim bears some resemblance to the facts in Jaenke v Hinton where the plaintiff a milk vendor stepped on a hose on the lawn of the defendants' home. There was evidence that the plaintiff in that case had entered the property via a concrete driveway, delivered milk and returned by crossing the grassed area in the front yard when she stepped on a hose. The facts were that she was familiar with the property, she had seen the hose on the lawn from time to time and she was aware that hoses and sprinklers and other obstacles were to be found on premises to which she delivered milk. There was no evidence that the defendants knew that the plaintiff took this particular route on their property. 50 In the circumstances the Queensland Court of Appeal held that there was no breach by the defendants of their duty of care to the plaintiff. 51 The facts in this case are entirely different. The defendants were aware that the plaintiff used the pathway at the very least daily. The defendants were aware, because Mrs Savins had given him permission to do so, that the plaintiff was to park his car on the front lawn overnight on 28 September 2005. The defendants did not turn on the security light. This light was movement activated and would have been activated by the plaintiff's approach. It would have illuminated his path. Findings 1. In placing the bale of wire in this area the defendants created a foreseeable risk of injury to the plaintiff. 2.The risk was significant because the wire was placed in an area of darkness and was likely to impede the plaintiff's path of travel and cause injury to him. 3.Simple alleviating action was available which would have cost the defendants nothing. 4.As to what a reasonable person in the defendants' position would have done in response to the risk, in my view it would have been to remove the wire to a safe place and to turn on the security light. 5. I find the defendants in breach of their duty of care to the plaintiff and liable to him in damages. 6. In arriving at this conclusion I have rejected the contention that there was no breach of the duty of care because the accident was entirely a consequence of the plaintiff's failure to take care for his own safety. 7.For the same reasons I reject that part of the defence which claimed contributory negligence on the part of the plaintiff. I do not accept that it was an incident of the plaintiff's ordinary everyday life that he would find obstructions in the path that he used with such frequency. As such he had no reason to exercise the special care that would have been needed to deal with the bale of wire obstructing his path of travel. 8. I find that there was no contributory negligence on the part of the plaintiff. DAMAGES 52 The plaintiff claimed non-economic loss, out of pocket expenses past and future, and compensation for domestic assistance past and future. No claim is made for loss of income earning capacity. Non-economic loss 53 At the time of the accident the plaintiff had a significant medical history. There were three features of particular significance. 1. The plaintiff suffered a crush injury to his right hand in 1977. The injury left him with restrictions in movement of the hand and fingers and on-going disability. He is right hand dominant. Because of the injury to his right hand he developed greater reliance upon the left hand. The injury to the right hand and its results were described by Dr Gallagher in Exhibit D in November 1997 as a severe crushing injury of the right hand which had recovered fairly well, although there was residual disability with scarring, contusion and loss of power. The residual permanent disability of the right hand was assessed at approximately 45 percent. 2. The plaintiff suffered from psychological disorders which involved a breakdown in 1991-1992 and a further break down in 2002 when his marriage failed. As a result there were a number of voluntary admissions to hospital. I have already referred to the plaintiff's continuing habit of self-harm and to the reference in medical records which indicated that he had inflicted wounds to his left arm shortly before the accident on 28 September 1995. The plaintiff was medicated for these disorders. He also suffered from continuing insomnia for which he took medication. 3. The plaintiff suffered from migraine headaches for which he received medication, including Pandeine Forte. 54 The plaintiff's evidence was that after the fall he suffered from immediate pain and swelling. At Lismore Hospital he was provided with pain relief and surgery was undertaken on 1 October 2005, when a plate was inserted to fix the fracture which he had suffered as a result of his fall. 55 He suffered from continuing pain and discomfort and was referred to Dr Ryan, an orthopaedic surgeon in Brisbane, who undertook further surgery in June 2006 for the removal of the plate. This did not improve the plaintiff's condition and in October 2006 further surgery was undertaken to fuse the bones of the wrist, the donor site being the left hip. 56 The plaintiff said that after this surgery there was some improvement but he has ongoing disability. His wrist is fixed, he has discomfort over his knuckles and on the back of his hand. He has pain lifting even moderately heavy items. He finds gardening difficult and he cannot use secateurs or a screwdriver. He has problems turning the steering wheel of his car at roundabouts. He said he had ceased certain pre-accident activities such as weight lifting and jogging, and restoration of furniture and French polishing. He did concede that he could probably now resume jogging following the surgery to fuse his wrist. 57 As far as the French polishing was concerned he agreed that he had undertaken part of a course in French polishing after the accident but said he could not complete it because of the discomfort it caused to his left wrist. 58 He wears a wrist brace from time to time. 59 He complains that his psychiatric condition has been impacted because he now has a further disability. 60 The plaintiff was taken in cross-examination to medical records which indicated that he had a condition affecting his left knee. He agreed that he had suffered problems with his left knee but denied that it prevented him from jogging prior to the accident. 61 He agreed that at the time of the accident he had been taking medication for his psychiatric condition and for his migraine headaches. 62 Dr Searle in Exhibit M1 noted the fusion of the left wrist joint and noted that it had left the plaintiff with a significant loss of function of his left hand and wrist, so that he was permanently unfit for activity involving rapid or repetitive movements or loading of the left hand. 63 Dr Searle referred to the compounding effect of this functional disability having regard to the pre-existing disability of the right hand and wrist. 64 Dr Smith reported for the defendants in Exhibit 1B that the plaintiff's wrist had been fused in a less than satisfactory position. He otherwise accepted the loss of function in the left hand that was the result of the injury. Dr Smith concentrated on the left hand and wrist, regarding the right hand injury as a pre-accident condition of no relevance to his opinion. 65 Having regard to the evidence that I have set out relating to the injury which the plaintiff suffered, his on-going pain and disability the compounding effect of that injury upon his functional capacity by reason of restrictions in both the left and right hand and the obvious impact that it has had on his psychiatric condition, I have assessed the plaintiff's general damages at 40 percent of the worst case, awarding him the sum of $171,000 for non-economic loss. Domestic assistance 66 The amount sought by the plaintiff for domestic assistance varied according to his condition. 67 There were three periods when he claimed that the degree of care required was greater. They were the periods after the initial injury and surgery and those following the two further surgical procedures. The plaintiff said the period of greatest need was that following the surgery for fusion because the bone graft from the hip caused him hip pain and loss of mobility. 68 His claim for past care is set out in Exhibit X and is based on the report of the occupational therapist Ms McHugh (Exhibit U). For the past he claims three hours a day or 21 hours a week after each period of surgery and one hour a day or seven hours a week in other periods. 69 For the future, alternative claims are made ranging from 11-1/2 hours a week to four hours a week. 70 The defendants assert that aside from those periods following surgery that the plaintiff requires no domestic assistance. 71 The plaintiff's position is complicated by his receipt of a pension for the care he provides to his 84 year old mother. He stated that he has used the pension to pay for occasional household assistance. 72 The law requires that a tort feasor must meet the need generated by an injury caused to the claimant. I do not think that obligation can be diminished to the extent that the need is met by social security benefits. It may be that the award that I make will affect the plaintiff's entitlements to social security but that is a matter for the relevant government departments. 73 It is clear from the provisions of the Civil Liability Act 2002 that the plaintiff is entitled to recover to the extent necessary to meet his own needs and the care that he was providing to his mother as her carer. 74 It was contended for the defendants that the plaintiff had not established that care had actually been provided in the past. I reject this contention. There was evidence from Mrs Skimmings that she and her late husband provided assistance. Mrs Skimmings said that she continues to do what she can. There was also evidence that the plaintiff's brothers and sisters had provided assistance and there was evidence of paid assistance with housework and lawn mowing. 75 I was referred to Dr Smith's report which suggested that the plaintiff was in no particular need of domestic assistance. I have already noted that Dr Smith dealt only with the left hand injury and he concluded that there was no requirement for domestic assistance because of the functional disabilities of the left hand only. He specifically did not take into account the compounding effect of the injuries to each of the plaintiff's hands. 76 In respect of the periods immediately after surgery there was evidence that the plaintiff required assistance not only with his everyday housework and house maintenance but with personal care, such as showering, toileting, dressing and eating. In the third period there were further difficulties with mobility. 77 I have therefore allowed, for the first two periods, 14 hours a week for ten weeks each and, for the third period, 21 hours per week for a period of ten weeks. 78 The plaintiff agreed with the evidence of Mrs Savins that in periods between surgery he had the capacity to undertake some landscaping work on her behalf. However taking account of the restricted capacity of both of his hands, I am satisfied that a need has been generated for assistance with heavier aspects of his household obligations, both internally and externally. 79 Having regard to the plaintiff's obligations of care for his mother, I consider that seven hours per week, as claimed, for past care is reasonable. 80 As regards the future, the plaintiff will continue his responsibilities to Mrs Skimmings for a regretfully limited future period. For the future, therefore, I will allow seven hours for ten years, and after that period the amount allowed will be five hours per week. The hourly rates which Ms McHugh set out were not challenged and therefore domestic care will be allowed at the various rates stated in her report. Out of pocket expenses 81 The schedule of past out of pocket expenses (Exhibit V) was not addressed by the defendants in their submissions. I proceed therefore on the assumption that they are agreed. In this respect I refer in particular to a claim of $13,663.22 referred to as payback to the Teacher's Health Federation. Since this is a substantial sum I will allow a period of seven days for the defendants to address me in respect of this sum should they require. 82 I have deducted items 23 and 25 from the out of pocket expenses, as I regard them as having been covered by the award made for past domestic services. 83 As for the future, the plaintiff claims for items of equipment listed in Ms McHugh's report. I do not propose to allow these items of equipment as separate items of expenditure. The smaller items I regard as having been covered by the award made for domestic services. There was no evidence from the plaintiff himself in respect of the need for a dishwasher, refrigerator or gymnasium membership and those claims are therefore rejected. 84 There was no claim for ongoing medical expenses. 85 I therefore make no award in respect of future out of pocket expenses. 86 I am happy for the parties to calculate the amount of the award for domestic services and to come back to me today if that can be done and also to clarify whether the defendant wishes to address me on past out of pocket expense. If this cannot be done, I will stand the matter over to Newcastle for short minutes. ********** 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. 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