Leslie Colin Casey v Amanda Dawn Robinson & Anor [2003] NSWSC 1155

New South Wales Supreme Court

CITATION : Leslie Colin Casey v Amanda Dawn Robinson & Anor [2003] NSWSC 1155 HEARING DATE(S) : 25/11/03 - 27/11/03 JUDGMENT DATE : 9 December 2003

JUDGMENT OF : Cripps AJ DECISION : (i) There will be a verdict and judgment for the plaintiff ; (ii) The defendants to pay the plaintiff's costs.

CATCHWORDS : NEGLIGENCE - duty of care - defendants/lessor's obligation to inform plaintiff/lessee of maintenance and/or upgrade works in progress to the leased property - defendants/lessor knew of plaintiff's regular use of the leased 52 acre property for motorbike riding - - DAMAGES - Civil Liability Act 2002 (NSW) ss 13, 15, regarding damages for non-economic loss and gratuitous services LEGISLATION CITED : Civil Liability Act 2002 Leslie Colin Casey - Plaintiff PARTIES : Amanda Dawn Robinson - 1st Defendant GIO Insurance - 2nd Defendant FILE NUMBER(S) : SC 20183/02 COUNSEL : B J Gross QC and H Bauer - Plaintiff G Parker - 1st and 2nd Defendants SOLICITORS : Carol & O'Dea - Plaintiff Ebsworth & Ebsworth - 1st and 2nd Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

CRIPPS AJ

9 December 2003

20183/02 – Leslie Colin Casey v Amanda Dawn Robinson & Anor

JUDGMENT 1 HIS HONOUR: On 24 November 1999 the plaintiff was injured when he fell from a motorbike while test riding it along a motorbike track. 2 The accident took place on a property occupied by the plaintiff and owned by the first named defendant. It was alleged that the second named defendant (the father of the first named defendant) was acting on behalf of the first named defendant when he dug up a portion of the motorcycle track in circumstances where the plaintiff was unaware of it until it was too late to avoid an accident. 3 The second named defendant Mr Jeffrey died in September 2003 and, by consent GIO General Limited has become the second named defendant as the public liability insurer of the first named defendant and the late Mr Jeffrey. 4 The plaintiff has claimed in negligence. He has also alleged, as against the first named defendant, breach of covenant for quiet enjoyment but that claim was abandoned at the hearing. 5 The plaintiff, his wife and two sons went into occupation of part of the first named defendant's fifty-two acre property at Collombatti in or about September 1998. It would seem that the plaintiff's occupancy was regulated by a written lease agreement which has been lost and no attempt has been made to describe the nature of the plaintiff's occupancy other than that he was a tenant of approximately two acres of the property. Included in his tenancy was a house in which the family lived and a driveway leading from Collombatti Road to the house. The driveway was approximately 150 metres long. After leaving Collombatti Road it travelled from north to south to the house in a gentle uphill gradient curving slightly to the west. 6 In or about October 1998 the Kempsey Shire Council was upgrading Colombatti Road. At the request of the late Mr Jeffrey it upgraded the driveway. When doing so it also made two dish-drains on the eastern side of the drive designed to carry water from the road. This case is concerned with the dish drain closest to Collombatti Road. When made it was approximately 10 metres long, 150mm deep and about 100 to 150mm wide. 7 The plaintiff and his two sons were trail bike enthusiasts. The evidence of the plaintiff's eldest son Timothy, which I accept, was that after the drive had been formed and the drains made, the late Mr Jeffrey told them they were not to ride their trail bikes on the newly made gravel drive but that if they wished they could ride their bikes down the western side of the drive, cross the drive near the entrance to Collombatti Road, and return on the eastern side. 8 The case for the plaintiff is that over a period between October 1998 and November 1999 the track (or loop as it came to be called) was used by the plaintiff, his sons and their friends. Over time and well before November 1999 the drain was filled in. It was compacted by the bike riders and was level with the loop. The loop was about the width of a tyre of a trail bike. 9 In November 1999 the loop (except where it crossed the drive) ran through grass upwards of a metre high with the result that any changes in the loop would not have been apparent to a bike rider until he or she came across it. 10 The plaintiff's case is that on the afternoon of 24 November 1999 and after he had serviced a motorbike belonging to his son-in-law he took it for a test drive. He went down the western side of the drive along the bike track, crossed over the drive near the gate and had covered about twenty metres on the eastern side when the front wheel of the bike reared up, threw him to the ground and fell on him. At the time of the accident he was travelling at about thirty kilometres per hour. 11 The plaintiff claims that the drain was dug up by the late Mr Jeffrey and no warning of it was given by him. 12 In his statement of defence the late Mr Jeffrey admitted he did not warn or advise the plaintiff "concerning the existence and location of the trench, but says that the plaintiff having resided at the premises since the construction of the premises in 1998, was aware of its existence and did not require any warning or advice as to its existence". He did not admit that he had dug the drain but did not, in terms, deny it. 13 A statement made by the late Mr Jeffrey on 19 July 2002 was tendered in evidence. In it he referred to the fact that he paid the Council $200 to re-form the drive and make the drains. He said he was not present at the time of the accident to the plaintiff but heard of it from Mrs Casey later. He said that Mrs Casey said that the plaintiff was trying to do a wheel-stand and that the accident was her fault because she had made him give up drinking. Mrs Casey has given evidence denying she made this statement to the late Mr Jeffrey and, as will be seen, I accept her evidence. 14 The late Mr Jeffrey was not clear about what he referred to as the "time frame" of the events. He said, however, that he recalled that the plaintiff resumed work collecting seeds in the summer following the incident which I think is unlikely bearing in mind the medial evidence as to the severity of the plaintiff's injury. He denies digging up the drain. 15 I think it appropriate at this time to mention that the credit of the plaintiff came under attack. I record that generally speaking I have little confidence in the accuracy of his testimony unless it is corroborated by evidence that I accept. I accept the evidence of the plaintiff's wife and his son Timothy. Timothy has said that the late Mr Jeffrey told them that they were not to ride their trail bikes on the newly made gravel drive but they could ride them on the side of the gravel driveway which they did. 16 The plaintiff was taken to hospital immediately after the accident and his wife went with him. Mrs Casey and Timothy Casey have given evidence that the day following the accident they inspected the site and saw that the drain, where it bisected the loop, had been dug up and was about 150mm deep and about 150mm wide over a length of a little over 2 metres. Later they said they noticed that the drain had been filled in and compacted. At the time of the accident the grass was, as I have said, upwards of a metre above the ground and the track of the loop was not much wider than the wheel of a trail bike.