New South Wales District Court CITATION: Kilbourne v McGuiggan [2006] NSWDC 103 HEARING DATE(S): 30, 31 October 2006, 1 November 2006 JUDGMENT DATE: 3 November 2006 EX TEMPORE JUDGMENT DATE : 11/03/2006 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1. Verdict for the defendant; 2. Plaintiff to pay the defendant's costs of the proceedings on an ordinary basis up to and including 20 March 2004 and on an indemnity basis thereafter; 3. Exhibits retained for 28 days CATCHWORDS: Fall on rented residential property LEGISLATION CITED: Civil Liability Act 2002 - ss 5B 5C Wyong v Shirt (1980) 146 CLR 40 Romeo v The Conservation Commission of Northern Territory (1998) 192 CLR 431 CASES CITED: Hill v Chiaverini [2004] NSWCA 265 Seiko Australia Pty Ltd v Da Rin [2001] NSWCA 84 Neindorf v Junkovic (2005) 222 ALR 631 Jones v Bartlett (2000) 205 CLR 166 PARTIES: Jody Kilbourne Graham McGuiggan FILE NUMBER(S): Coffs Harbour 42 of 2003 COUNSEL: Plaintiff E J Johnston Defendant J Guihot SOLICITORS: Plaintiff Harbour Law Defendant Moray & Agnew JUDGMENT HER HONOUR 1 The plaintiff, Jody Kilbourne, claims damages in respect of a significant injury to her left knee. Her claim is that the injury occurred when she fell on premises at 97 Fiddaman Road, Emerald Beach. Those premises are owned by the defendant and were occupied at the time of the plaintiff's fall by her as his tenant. 2 The plaintiff said that she fell on 28 October 2001, when she misplaced her footing at the edge of a concrete driveway providing for pedestrian and vehicular access to the property. She could not state the time at which she fell, but it was likely that it was late in the evening because the notes of the triage nurse indicate that she was seen at Coffs Harbour Base Hospital at fifty four minutes past midnight. 3 There was evidence that there was a difference in the levels between the edge of the recently constructed concrete driveway and the adjoining grass verge. The plaintiff said that upon placing her foot on the edge of the concrete slab, her leg twisted and she fell to the ground. 4 The issues which arose in respect of the plaintiff's claim were as follows. (1) the plaintiff's credit and the extent to which I accepted any or all of her evidence. (2) the circumstances in which she was injured and whether they pointed to negligence on the part of the defendant. (3) whether there was contributory negligence on the part of the plaintiff, and (4) the damages, if any, to which the plaintiff might be entitled. 5 As to the first issue, that is the plaintiff's credit, the defendant urged me not to accept the plaintiff's evidence of how her injury occurred. There were two basic reasons behind the submission. Firstly it was said that there were no eye witnesses to support her evidence of what had occurred. Mr Rendell was the plaintiff's partner at the time of the fall. The plaintiff gave evidence that was inconsistent as to whether he saw her fall, although he was in close proximity to the point at which she fell. Mr Rendell was not called to give evidence. The evidence was that the relationship between him and the plaintiff ended in circumstances of considerable conflict. 6 Ms Formosa was said to be a friend of the plaintiff at the time of the incident. She was also said by the plaintiff to have been in close proximity but, according to the plaintiff, Ms Formosa did not see her fall. Ms Formosa was called by the defendant. She said that she was not present at the Fiddaman Road premises at any time when the plaintiff complained of having fallen. She was not cross-examined in respect of this evidence. 7 The second matter raised by the defendant was to point to inconsistencies in the plaintiff's evidence in a number of areas. There were indeed a number of inconsistencies. I have taken little account of the discrepancies between the evidence of the plaintiff of how the accident occurred and the histories taken at the hospital immediately thereafter, and by her general practitioner shortly after the accident. It is not my practice to place great weight upon such histories. 8 In this case, the plaintiff was in significant pain and her report of how the accident occurred was clearly not given in anticipation of the need to meet the exacting standards of in court evidence. However, there were many other aspects of the plaintiff's evidence that were unsatisfactory. Examples were the incidences already given of her evidence concerning Ms Formosa's presence at the time of the incident, her overstatement in her claim and to medico-legal experts of the time for which she was out of work after the accident, the reasons for the termination of her employment with the Golf Club, her denial that other reasons prevented her from working when medical records indicated that her capacity for employment was substantially disrupted by her addiction to alcohol and her attempts at rehabilitation. 9 I do not accept, however, the submission that I should find that the plaintiff did not suffer injury in a fall on the driveway. This submission was based on the histories given and I have already stated that I base little weight on those discrepancies. I do agree with the submission of the defendant that where there is a matter in issue between the plaintiff and the defendant, I should prefer the evidence of the defendant, whose credit was not similarly tarnished. 10 In relation to issue (2) that is the circumstances of the accident, the plaintiff stated that she and Mr Rendell and Ms Formosa were present at dinner on the premises. After dinner an argument developed between the plaintiff and Mr Rendell, as a result of which he left the premises and went to his car which was parked on the grass verge outside the premises. The plaintiff said she followed him to continue the argument and she fell as she approached his car. 11 She indicated on a photograph in evidence that she fell at the junction of the new section of concrete driveway with the concrete apron in front of the premises. She said that at the time she fell she was focussed on the argument with Mr Rendell and was looking forward and towards Mr Rendell and his motor vehicle, rather than at the ground. 12 The plaintiff in cross-examination conceded the following matters. She said that at the time of her fall she was walking in an area which she knew was uneven. She agreed that she had been focussed on her argument with Mr Rendell and that she had taken no account of lighting conditions at the time. She agreed that she had not been looking where she was placing her feet, notwithstanding that she was aware of the difference in level. Asked if she could have seen it had she looked, she said that that was possible but she was unable to say, but in any event, she could still have misjudged her footing. 13 The consequence of my finding on credit as far as the plaintiff was concerned and of this evidence and that given by the defendant, is that I make the following findings of fact. (1) the premises which the plaintiff rented from the defendant comprised one half of the building at 97 Fiddaman Road, Emerald Beach. In front of the building was a concrete apron. In about mid 2001 the defendant and his son completed the driveway by constructing a further section of concrete in accordance with the local Council's approval. (2) I reject the plaintiff's assertion that the driveway was incomplete because it did not provide direct straight line access to the garage on her part of the premises. (3) I accept that she did complain to the defendant of the need to drive into her garage at an angle because of the position of the new driveway. (4) I reject her evidence that at the same time she complained to the defendant of unevenness between the new section of concrete and the adjoining grass verge. (5) I accept the evidence of the defendant that he was aware that there was some settlement in the adjoining grass verge after the construction of the new section of concrete slab and that he took measures to address this. (6) I accept the evidence of the defendant that he did not recognise this settlement as a risk to the safety of occupants of the premises and I accept that he was not on notice of any risk to the safety of occupants arising out of the difference in levels. (7) I reject the plaintiff's attempt to present a case that she was forced to walk towards the edge of the new concrete slab by the presence of cars parked upon it. Those cars she said belonged to herself and Ms Formosa. Her subsequent evidence was that her car had been parked on the concrete apron and that Ms Formosa's car had been parked on the driveway close to the mailboxes on the opposite side to where she fell. This evidence indicated that space remained on the driveway for her to walk on an adequate and even concreted area. (8) As to the discrepancy in height between the concrete slab and the adjoining grass verge, the plaintiff's evidence was that this measured about 5 inches or 125 millimetres. The defendant said 1 inch or 25 millimetres. The photograph exhibit H3 indicates that the discrepancy is in fact somewhere between those two dimensions. 14 The law of negligence places much emphasis on what is reasonable in the circumstances of a given situation. On the part of a defendant, there is the duty of care which requires that he or she take reasonable precautions to deal with a situation that, acting reasonably, he or she might foresee as a likely cause of injury or damage to another. The law does not extend the obligation to that of the provision of a guarantee of absolute safety. The law requires a plaintiff to act reasonably and taking care for his or her own safety. 15 The authorities that I rely upon in putting these propositions are Wyong v Shirt (1980) 146 CLR 40, Romeo v The Conservation Commission of the Northern Territory (1998) 192 CLR 431, Hill v Chiaverini (2004) NSWCA 265, Seiko Australia Pty Limited v Da Rin (2001) NSWCA 84, Neindorf v Junkovic (2005) 222 ALR 631, Jones v Bartlett (2000) 205 CLR 166 as well as the Civil Liability Act 2002, ss 5B and 5C. 16 In this case, consistent with the decisions in Seiko and Hill, I do not consider that the defendant was in breach of his duty of care, when: (1) he had recently replaced the dirt and gravel access to the premises with an even concrete slab. (2) he had not been notified prior to 28 October 2001 of any alleged risk arising from the differences in level. (3) the plaintiff, fully aware of the differences in levels, took her path across the area of unevenness, rather than using a more than adequate driveway and (4) in any event, the extent of the unevenness in my opinion was insufficiently significant to constitute a risk to safety in respect of which it would have been reasonable on the part of the defendant to take preventative action. 17 In the circumstances, there will be a verdict for the defendant. Also in the circumstances, it is not necessary for me to consider the issue of contributory negligence. 18 I proceed to deal with damages in the event that the matter goes further. 19 There was no dispute between the medical advisers that the plaintiff suffered a significant injury to her left knee. Dr Caldwell in his report of 21 July 2006 stated that she had suffered damage to the anterior cruciate ligament and the moderate medial collateral ligament as well as chondral damage. 20 The plaintiff, being financially disadvantaged, was only recently able to fund remedial surgery in Brisbane. The defendant's pleading of absence of mitigation in securing early surgery was not pursued in the course of the hearing. 21 The plaintiff gave evidence, which was not challenged, concerning the difficulties that she faced in her social and domestic activities as a result of the injury. Commendably, she has overcome her alcohol addiction. The first job that she obtained after rehabilitation was with the operators of the Kentucky Fried Chicken branch. This work involved standing, which the plaintiff said she managed with continuing pain and reliance upon painkillers. Again commendably, the plaintiff has studied and secured a qualification which has lead her to other employment but this employment still involves a large degree of physical activity. The plaintiff is continuing to study with a view to securing a degree in social work. She has ambitions to work in the field of social policy, involving persons who are aged, disabled or affected by drugs or alcohol. 22 The medical evidence was uncontroversial. Both parties rely upon Dr Caldwell's report already mentioned. He stated that the plaintiff requires further treatment in the nature of an anterior cruciate ligament reconstruction to stabilise the knee and reduce the speed of the progression of osteoarthritic changes in the lateral compartment. Associated with the ACL reconstruction would be a medial collateral ligament repair. The chances of stabilising the knee, according to Dr Caldwell, are greater than 95 per cent if the surgery is carried out by an experienced knee surgeon. 23 As to the plaintiff's capacity for employment, Dr Caldwell has stated that, after surgery, the plaintiff would be fit for pre-injury duties with unrestricted capacity for work. She would not be suitable for heavy labouring work or work on building sites. He indicated that she could develop premature osteoarthritis before the age of 55. Dr Caldwell stated that the plaintiff would be able to work notwithstanding the osteoarthritis but he did not state that her capacity for work in those circumstances would be unrestricted. 24 Applying the evidence to the assessment of the claim therefore, it was apparent that the plaintiff has experienced a considerable period of pain and discomfort, which continues, although somewhat diminished. She faces the prospect of further surgery and the prospect of premature osteoarthritis with accompanying discomfort and disability. 25 On this basis, I have assessed her non economic loss at 28 per cent of a worst case in the sum of $60,000. In respect of past economic loss, I have reviewed the claims made in the updated statement of particulars of 20 October 2006. I do not allow past economic loss for the period between employment with the Seaview Tavern and Kentucky Fried Chicken, this being the period during which it was conceded the plaintiff had been unable to work by reason of her addiction to alcohol. As a result, I have allowed of the amount claimed the sum of $4332.46 for past economic loss. 26 As to the future, the plaintiff's prospects are improved by reason of her studies and with her degree, the plaintiff will have the opportunity for work of a more sedentary nature. However, the consequences to her employment options of the prospective premature osteoarthritis, warrant a small buffer. In the circumstances, I have allowed the amount claimed for the period required for surgery and recovery from the surgery in the sum of $2891.16 and a buffer of $20,000 for the consequences to the plaintiff's employment options. 27 Out of pocket expenses have been allowed in the sum of $5448, being the amounts claimed for treatment and for medication. For the future, I have allowed the amount claimed for the surgery as quoted by Dr Caldwell in the sum of $12,620. 28 However, the result and the orders which I make are as follows. 1. There will be a verdict for the defendant. 2. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis up to and including 20 March 2004 and on an indemnity basis thereafter. 3. The exhibits will be retained for twenty eight days. ********** 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.