Furst v Ross [2003] NSWSC 420

New South Wales Supreme Court

CITATION : Furst v Ross [2003] NSWSC 420 HEARING DATE(S) : 28/04/03 - 01/05/03 JUDGMENT DATE : 20 May 2003

JUDGMENT OF : Burchett AJ at 1 DECISION : Verdict for the Plaintiff in the sum of $30,977 plus costs.

CATCHWORDS : Negligence - failure to repair leaking roof after severe storm damage - effect of Defendant's reliance on agent to investigate complaints - Plaintiff slipping on wet stairs - question of fact - no contributory negligence PARTIES : Nicola Louise Furst Briar Ross FILE NUMBER(S) : SC 020584/99 COUNSEL : Pl: B. Hughes Def: R Seton SC SOLICITORS : Pl: McLaughlin & Riordan Def: Carroll & O'Dea

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ACTING JUSTICE BURCHETT

Tuesday 20 May 2003

020584 of 1999

NICOLA LOUISE FURST (Plaintiff)

v

BRIAR ROSS (Defendant)

JUDGMENT 1 BURCHETT AJ: On the evening of 14 April 1999, parts of the Eastern Suburbs of Sydney were struck by a storm of quite exceptional magnitude. Hailstones were officially recorded as being of a diameter of 6.3 centimetres at Woollahra near Paddington and up to 9 centimetres, falling over a period of a quarter of an hour, at Surry Hills, not far away. Widespread and severe damage was caused to roofs of buildings and to motor cars in the streets. This case is brought as a consequence of a leak that developed in one corrugated iron roof heavily hit by hail. The Plaintiff, a young woman who was a tenant of a semi-detached house at 142 Paddington Street, Paddington, claims damages for negligence against her landlady in respect of injuries suffered some months later when she slipped on water on the stairs. It was the landlady's failure to have the leaking roof repaired, she says, which led to her fall. 2 The case was fought on the precise circumstances, the Defendant denying much of the Plaintiff's evidence directed to the question of the Defendant's awareness of the existence and persistence of the leak, and also asserting contributory negligence on the basis that the Plaintiff was holding a cat in both hands at the time, thus being unable to save herself by gripping a newel post or such handrail as there was; in any event was not steadying herself with either hand; and also, it was suggested, had not turned on a light that might have revealed the presence of the water. No defence was raised of any exculpatory clause in the lease, or pursuant to any aspect of landlord and tenant law that might have been protective of the landlord in such a situation. There was some appeal to a clause under which the tenant could have notified the leak to a particular person, but the Plaintiff's evidence was that the relevant information was given to the Defendant herself and to a Dr Smidlin, while the Defendant's own evidence indicated Dr Smidlin was acting on her behalf in respect of the hail damage. 3 The house in question was of the familiar style of terrace houses in Paddington, consisting of three storeys and sharing a roof with the semi-detached house next door, occupied by Dr Smidlin, a medical practitioner who had retired in 1996, and is now aged 71 years. On the top floor, the Plaintiff had two bedrooms; on the intermediate floor (which was at the Paddington street level), a lounge-dining room and kitchen, and at the basement level a third bedroom and a bathroom and laundry. An upper stairway ascended from the ground floor towards the top floor, bifurcating at some point so that one branch of it led to the main bedroom and another to the second bedroom. Directly beneath the upper stairway, steps also led down to the basement floor. It was on the lower stairway that the accident happened, so I shall describe it in a little more detail. Part way down, it turned to the left at a right-angle, the steps tapering towards the inside of the turn in the usual way, where there was a newel post. The stairs were narrow and the steps were worn wood, which had been varnished or coated in some way. There was a light at the turn in the stairs, which, I am satisfied, was not very bright. On the evidence and the probabilities, I find that light was on when the accident occurred, during the evening in winter. Going down, there was a wooden handrail on the left hand side which ended some short distance before the newel post; a further short distance beyond that, the rail was renewed, but at least that lower section of it was flush against the side wall, and thus it would have been impossible to get a hand around it. 4 It is the Plaintiff's case that on 19 July 1999, over three months after the storm, when she was descending those stairs carrying her cat and wearing ordinary leather shoes, at a point about half-way down and approaching the turn to the left, her foot slipped on water on one of the wooden steps, and she fell heavily. In falling, she struck her left elbow, and then the rest of her body made contact with the stairs. She naturally looked to see what might have caused her to slip, and both saw and felt water on four or five of the steps. The next day, the left arm was swollen and painful; the Plaintiff had soreness in her neck and back; and there were swollen veins on the left side of her neck, which also felt "tight". However, as will appear when I discuss her pre-accident activities, the Plaintiff must have been a very fit young woman, and she thought she would get over it without requiring medical attention. She went to work as a primary school teacher throughout the rest of the week, the evening of her fall having been on a Monday, enduring the pain from her left arm and neck. On the Sunday of the following week-end, she saw a doctor at Chatswood Medical Centre, who does not appear to have diagnosed anything of significance, although he did note that she was complaining of pain in the left shoulder and had slight swelling of the upper arm. The note refers to the fall down the steps and makes some further illegible comment, but the most important thing about it, in the light of the Plaintiff's subsequent medical history, is perhaps that swelling of the upper arm was confirmed by a medical practitioner at this early date after the injury was sustained. 5 I do not think the Plaintiff's lack of concern about any possible injury of severity was other than real, for at no time did she pursue medical treatment with enthusiasm. Her brother was a psychiatric registrar at Nepean Hospital, near the school where she taught. However, it was not for medical treatment, but for a cup of coffee with him, that she went to the hospital at the end of the school day on Friday 20 August 1999, a month after her fall. He insisted on her immediate admission to the hospital, a diagnosis being made of thrombosis in the left subclavian vein. She remained there under care until 28 August 1999, when, apparently characteristically, she discharged herself against medical advice. She did continue on the prescribed medication (Warfarin) for six months, with regular medical reviews. 6 I have explained at some length the Plaintiff's attitude to her injuries, both at the time of their occurrence and for some time thereafter, because it casts light on the documents which constitute some of the evidence on the issues that must determine liability in this case. 7 In the first place, it should be said that no claim was made against the Defendant, nor was she even notified of the incident when the Plaintiff fell, until after 20 August 1999. While the Plaintiff was in hospital, a letter to the Defendant (who, at all relevant times, lived in Auckland, New Zealand) was typed on her behalf, and was signed by her. The Defendant, however, was on holidays in Australia at the time, so a copy was sent some days later by facsimile, as I infer, by one Adam Davis, with whom the Plaintiff had been living. He had remained on close terms with her, and he visited her in hospital. His name appears, as the sender, on the facsimile. This letter, dated 26 August 1999, omitting formal parts, reads as follows: "You will recall that following the hailstorm in Sydney in early May of this year, the property sustained damage to the roof causing the roof to leak. I informed you of this leak during a telephone conversation we had in the week following the storm. Since that time the leak has become substantially worse. Despite being informed on two subsequent occasions as to the extent of the damage to the roof, no attempt was made by you to repair the damage and the roof is still leaking every time it rains. There are at least two leaks in the roof covering the stairwell, causing water to accumulate on the top flight of stairs. From here it runs down the stairs and through to the bottom flight of stairs. This has caused the bedroom on the lower level to remain constantly damp and unusable. The water has continued to cover the stairs despite my efforts to continually soak it up with towels. There are further leaks in the small upstairs bedroom and the water from these leaks through the floorboards and into the kitchen, which is directly below. There is also a leak in the master bedroom upstairs. As a result of the damage to the property and the resulting leaks large parts of the property are unusable and extremely dangerous. I request that you attend to these leaks immediately. Until such time as the property has been rendered livable and safe I intend to pay rent in the sum of $200 per week. On the 19th of July, 1999 I slipped on the water at the top of the stairs and fell down the stairs injuring my shoulder and my neck. I am currently in a serious condition in Nepean Hospital, Penrith, NSW where I am being treated for a blood clot in my neck, which developed as a direct result of the injuries sustained by the fall. As soon as I am able I shall be seeking legal advice in regard to an action for damages against you for the injuries I have sustained."