Yildirim v Ford [2004] NSWCA 128

New South Wales Court of Appeal

CITATION : Yildirim v Ford [2004] NSWCA 128 revised - 10/05/2004 HEARING DATE(S) : 20/4/04 JUDGMENT DATE : 30 April 2004

JUDGMENT OF : Ipp JA at 1; Stein AJA at 2; Bell J at 25 DECISION : The appeal be dismissed with costs.

CATCHWORDS : Appellant injured by falling brick wall while unloading truck in adjacent street- Challenge to judicial findings of fact- whether patent defect in wall- whether wall had outward lean-Res ipsa loquitur Cafer Yildirim: Appellant PARTIES : Simon Ford: First Respondent Andrew Phillip Ford: Second Respondent FILE NUMBER(S) : CA 40132/03 COUNSEL : J.E Rowe/ J.A Darvall for the Appellant R.Seton SC/M. Avenall for the Respondents SOLICITORS : Coleman & Greig for the Appellant Abott Tout for the Respondents

LOWER COURT District Court JURISDICTION : LOWER COURT 7540/01 FILE NUMBER(S) : LOWER COURT Freeman DCJ JUDICIAL OFFICER :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40132/03 DC 7540/01

IPP JA STEIN AJA BELL J

30 April 2004 CAFER YILDIRIM –v-SIMON FORD & ANOR JUDGMENT 1 IPP JA: I agree with Stein AJA. 2 STEIN AJA: The appellant, Cafer Yildirim, appeals from a judgment of Freeman DCJ dismissing his claim for damages for personal injury. On 18 August 1998 he was badly injured when a brick wall fell on him at the rear of premises in Experiment St Pyrmont. The brick wall formed the rear fence of premises owned, but not occupied, by the defendant (respondent). 3 The facts are recited in detail by the trial judge but briefly they are as follows. The appellant was driving a tabletop truck loaded with large boilers to be delivered to a construction site nearby the respondents' premises. He parked partly on the footpath with the driver's side of the tray adjacent to the subject brick wall. The truck was about a metre or less from the wall. 4 The appellant made two attempts to move one of the boilers on the truck tray to make it more easily accessible to a forklift. First, the appellant pushed the boiler with his feet, with his back up against the brick wall. This was not successful so he tried pulling the load. This did not work either. The appellant again tried to push the boiler with his arms and back braced against the wall and with one foot braced against the load. He pushed to the utmost of his strength but to no avail. He stopped and stayed in the position between the truck and the wall when the wall collapsed onto his back. 5 The wall was around 20 years old. It had an unsupported span between piers of a little more than 2 metres. It was a single thickness brick, about 2 metres or a little higher and 2.4 metres in length. At each end was an engaged pier. 6 According to the expert evidence the wall failed at between two and three brick courses above the ground. In its fall upon the appellant it rotated around this plane. 7 The appellant's case was encapsulated in the evidence of his expert, a Mr Burn. He made two criticisms of the wall. First, that there was insufficient mortar in the joint along the plane of failure. Second, that the wall was not constructed in accordance with the relevant Australian Standard. 8 His Honour was critical of a number of aspects of Mr Burn's evidence and preferred the evidence of Mr Koch, the defendant's engineer, where there was disagreement between them. 9 His Honour did not accept the theory of the absence of the mortar, nor the relevance of the Standard. Rather, he preferred Mr Koch's opinion that the wall, when built, was not in breach of any standards and was built of adequate workmanship. 10 The defendant only purchased the property in early 1997 (the accident occurred in August 1998) and had a tenant in occupation. The defendant was not aware of any fault in the wall, and on Mr Burn's opinion, the defect in the mortar would likely not be obvious by a layman, assuming it existed contrary to the judges' conclusion. 11 His Honour's judgment then continued: