District Court New South Wales Medium Neutral Citation: Stambolziovski v Nestorovic (No 2) [2014] NSWDC 292 Hearing dates: 18-22, 25 August; 15-19, 26 September 2014 Decision date: 30 September 2014 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Judgment in favour of the defendants against the plaintiff. (2) Plaintiff to pay the first defendant's costs of the proceedings. (3) Plaintiff to pay the second defendant's costs of the proceedings, those costs not to include any compensation for time spent by Carmelo or Margherita Dimarti in preparing and defending this case. (4) All cross-claims dismissed with no order as to costs. (5) I defer entry of any order in respect of costs for 14 days and thereafter until further order in the event that any party seeks to argue that a different costs order should be made. Catchwords: TORT - negligence - landlord - tenant - real estate agent - breach of duty of care - failure to fix leaking toilet - tenant fell Legislation Cited: Civil Liability Act 2002, s 5B, s 5D Cases Cited: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Everett v Neale [2012] NSWDC 73 Mason v Demasi [2009] NSWCA 227 Category: Principal judgment Parties: Blaga Stambolziovski (plaintiff) Lilly Nestorovic (first defendant/cross-claimant to second cross-claim) Camanaro Prestige Properties Pty Limited ACN 101 515 744 t/as Sydneyhome Real Estate Ramsgate Beach (second defendant) Sasha Stambolziovski (cross-defendant to second cross-claim) Representation: Counsel: Mr M Daley (plaintiff) Mr S C Ipp (first defendant/cross-claimant to second cross-claim) Solicitors: Brydens Compensation Lawyers (plaintiff) Gadens Lawyers (first defendant/cross-claimant to second cross-claim) File Number(s): 2011/401832 Judgment 1. INTRODUCTION 1. Blaga Stambolziovski ("Mrs Stambolziovski") slipped and fell in an external laundry connected to her place of residence, "number 47", rented by her son. She fractured her right femur. She attributes the fall to water leaking from an adjacent toilet. This is contested by the defendants, the owner, Lilly Nestorovic, and the real estate agent, Camanaro Prestige Properties Pty Limited, who allege that she fell while she was mopping the laundry floor. 2. THE FACTUAL CONTEST 1. The slip, fall and injury to Mrs Stambolziovski are not in issue. The centre of the dispute is whether the injury occurred in circumstances suggesting negligence. Since Mrs Stambolziovski was alone in the laundry at the moment of the fall, she is the primary witness of how it occurred. Her credit including her subsequent conversations and to a lesser extent conversations of her family members are crucial in determining whether she has discharged the onus of proof resting upon her. A. Mrs Stambolziovski's account 1. Mrs Stambolziovski testified that she came to use the external toilet, which she had never before used, because she was embarrassed to use one of the two internal toilets in the house whilst a Telstra technician was present in the house installing a new phone line. 2. She exited the house through the rear door, descended two steps and turned 90 degrees to the left to enter a laundry room with the intention of turning a further 90 degrees to the left to enter the adjacent toilet. As she took the first step into the laundry she simultaneously noticed water on the floor, and slipped and fell. Her left leg struck a small step at the entry to the adjacent toilet. Her head was in that room, she said, and she noticed and touched a little bit of water around the toilet. She felt that her right leg was broken. She called for help. 3. Shortly thereafter, the Telstra technician came to her assistance, an ambulance was called and she was transported to hospital where she was treated and commenced recovery, first at St George Hospital and subsequently Calvary Hospital. B. Challenges to this account 1. Ms Nestorovic, the owner, challenged this account on a number of bases. (i) Mrs Stambolziovski's address 1. In evidence-in-chief Mrs Stambolziovski said that she was living at number 47 in "August 2009" but she agreed that she did "attend" the property on 27 August 2009 because her son, Sasha Stambolziovski, had asked her to be present when a Telstra technician arrived. She did not engage in paid employment at that time or in the previous years. 2. In cross-examination Mrs Stambolziovski was again asked whether she was living at number 47 in August 2009 and answered, "I'm not sure. We might have, we might have not." 3. When asked about where she was living at the date of the accident, 27 August 2009, she said, "We were at home 78 Margate. That was the week when we moved, I'm not sure." 4. When pressed on this matter she said, "I think we lived at 47" and that before the accident she was living at number 47 "Two or three weeks or more." 5. Her daughter, Vera Stambolziovski, subsequently testified that Vera, Mrs Stambolziovski's husband, Simon Stambolziovski, and Mrs Stambolziovski moved to number 47 "roughly around a couple of weeks or so before the incident." 6. Mr Simon Stambolziovski was asked about when he and his wife moved to number 47 and he answered: "A. INTERPRETER: After about two weeks. What do you mean? Q. When did you move into 47-- A. INTERPRETER: Two weeks. Before or after? Two weeks before the accident." 1. The hospital records state that the address of Mrs Stambolziovski was number 47. 2. Mrs Stambolziovski's initial account of attending the premises on the date of the accident is reflected in a report of an expert she retained, Neil Adams, who was advised that she "attended" at the house of "her son - who resided in the house as a tenant". Mr Adams' instructions were that Mrs Stambolziovski "was not a resident at the house" although "she had visited the premises on a number of previous occasions". 3. This account of visiting her son's house is also reflected in the reports of the medico-legal experts retained by the plaintiff, Dr Raymond Wallace and Gerard Glancey, and in the report of Dr Roger Rowe, retained by the owner. Mrs Stambolziovski did not recall her answer to the experts although given the passage of time that might be expected. 4. The statement of claim somewhat equivocally alleged that Mrs Stambolziovski was "lawfully upon the premises having been granted permission by the tenant". 5. Whether Mrs Stambolziovski was living at number 47 at the time of the incident is a matter that is relevant to negligence. It may reflect upon her familiarity with the premises and with the outside laundry in particular. Her account during evidence-in-chief is not clear, but before then her account appears to have been that on 27 August 2009 she was a visitor to the premises. Her evidence in cross-examination and subsequent evidence in the trial from her family support her being an occupant of number 47 on 27 August 2009. 6. I do not view these apparently conflicting accounts as crucial but they do not serve to strengthen her credit. (ii) Reason for use of the external toilet 1. Mrs Stambolziovski gave evidence that she went to the outside toilet, not one of the two toilets inside the house, because of the presence of the Telstra technician, Jimmy Stojanovski. The Telstra technician was said to have been in the lounge room close to the back door and behind her when she stepped outside. 2. The Telstra technician gave evidence that he saw Mrs Stambolziovski, "She was just standing around tidying up … Tidying up - probably dusting and that. Cleaning up." After he completed working with the sockets he left for 15 to 30 minutes and journeyed down the street to locate the pillar "to find the signal and hook up the phone line". 3. When he returned to the house he heard screaming in the back, "opened the back door", saw Mrs Stambolziovski lying there in the laundry and called an ambulance. The plaintiff did not cross-examine him about his evidence that the plaintiff was lying in the laundry rather than largely or partially in the toilet room. Neither party asked the Telstra technician about the condition of the floor at the time he found Mrs Stambolziovski. 4. The owner submitted that the account of Mrs Stambolziovski should not be accepted, as the Telstra technician was absent and therefore could not have been the cause of any embarrassment. The evidence of the Telstra technician does not support Mrs Stambolziovski either in the precise location of her fall or in respect of his presence at the time she ventured outside. 5. I do not regard the testimony of Mr Stojanovski as of great weight. Mrs Stambolziovski's motivations for using the outside toilet do not seem to me to be so memorable that they would remain clear in her mind years after the event, and the Telstra technician's observations of her location after the fall might also be inaccurate after the lapse of time. Those observations were not clarified by further questions of either party. The failure by either party to ask questions of the Telstra technician about the condition of the floor surrounding Mrs Stambolziovski leads to the conclusion that his evidence on that matter could not help either party. (iii) The hospital records 1. One serious challenge to the credit of Mrs Stambolziovski concerned her activities at the time of the incident as stated in the hospital records. Although she attributes the slip to water on the floor as she entered the laundry, the contemporaneous hospital records contain the following entries: "27/8/09 ... States she slipped on the bathroom floor (which she was cleaning) onto [right] hip." "27.8.09 [3.25pm] ... Family assisting, ie translation." "28/8/09 ... Cleaning bathroom + slipped on wet tiles." "Slipped while cleaning bathroom ... 29/8/9." 1. The three references to slipping whilst cleaning the bathroom are each in different handwriting. 2. To describe the cause of the injury the hospital records also used the code "U731" which applies to an "injury ... occurring whilst engaged in other types of work" and which embraces "domestic duties such as ... cleaning". It is distinguishable from code U732 that covers "engaging in other vital activities [such as] personal hygiene". 3. Mrs Stambolziovski initially denied being interviewed by doctors at the hospital and subsequently denied any recollection of such an interview. She attributed this to the head injury she suffered and semiconsciousness due to a painkilling injection. When asked about the "slipped whilst cleaning" records, she said, "I don't think I said that, and nobody had asked me that", "I did not say anything to anyone, I don't remember. I slipped from the water that had leaked from the toilet, I was not cleaning" and "Nobody asked me about the accident." 4. The hospital records (and the ambulance records) did not support the claim of diminished consciousness. Those records make several references to her being "alert and orientated". A Glasgow Coma Score was at the maximum score for consciousness. I was not persuaded that at any time her consciousness was so affected as to cause her incorrectly to describe what had occurred. 5. The claim by Mrs Stambolziovski to a head injury was also problematic. The hospital records state that she "Did not hit head/lose consciousness". There is no reference to any head injury in the ambulance or hospital records. Mrs Stambolziovski did not recount any head injury when initially describing her fall in giving her evidence. Later she said her head came to rest "next to the wall" and later again in-chief the following leading question and exchange occurred: "Q. Anywhere else? You, in the accident bumped your head, I think you said, on the wall; is that right? A. INTERPRETER: I hit my head against the wall and I landed next to the wall, close to the wall, sorry, and I also landed on my left side - the left side of my body. Q. Did you have any problems with the left side of your body after the accident? A. INTERPRETER: I had a bit of bruising but it went away. Q. But your head, did you have any ongoing problems with your head after the accident? A. INTERPRETER: I hit my head because I went too close to the wall but because if regularly take my painkillers I don't feel the pain." 1. Mrs Stambolziovski marked where her head hit the wall when she fell. Given her direction of movement at the time she first stepped into the laundry and her small size compared to the distance from the laundry door to the far wall of the toilet, it seemed unlikely that a slip where she alleged could result in her head contacting that far wall. 2. I was not persuaded that her head came into contact with the wall. As I said, there was no record of any head contact or head injury, her evidence on the subject came after a leading (and it seems misleading) question, and the distance from the point of the slip to the wall seems too great. 3. However, so far as liability is concerned I do not think the evidence about Mrs Stambolziovski hitting her head is of great significance. There is no dispute that Mrs Stambolziovski was significantly injured in the fall. Hitting her head was part of an explanation she gave for the hospital records indicating that she fell whilst cleaning and is only significant to the extent that it contributed to any reduced consciousness. But Mrs Stambolziovski attributed being "semi-conscious" to a painkilling injection and "a mask", not to any head injury. 4. Accordingly, I am not satisfied that the physical injuries or medical treatment caused the references to "cleaning" in the hospital records. 5. The Court should be cautious about inconsistencies between oral testimony and hospital records: see Mason v Demasi [2009] NSWCA 227 at [2]. This need for caution is particularly apposite in the case of a witness, who, like Mrs Stambolziovski, has a limited understanding of English, even if, as was the case with Mrs Stambolziovski, she had the assistance of her family to translate. Also, the later references to "cleaning", although written by a different hand, may have been influenced by the earlier records. 6. On the other hand, this was not a case of a difference because of "florid expression and exaggeration" (see Mason at [4]) but rather the more prosaic matter of the activity engaged in by Mrs Stambolziovski at the time of the fall. 7. In my view, the hospital records were evidence of a possible alternative sequence of events. They had the advantage of being contemporaneous but the disadvantage indicated in Mason. They were part of the evidence that needed to be weighed in the balance. (iv) Other witnesses of the circumstances of the fall 1. The Telstra technician was the first person on the scene of the incident. As I said, he gave no description of the floor or matters that may have been probative of the reason for the presence of Mrs Stambolziovski in the laundry. The Telstra technician said that Mrs Stambolziovski was cleaning up when he arrived but this says little if anything about whether Mrs Stambolziovski was cleaning the external laundry some time later. The ambulance records referred to "slipped on wet tiles" which is, in the circumstances of this dispute, equivocal. (v) The plaintiff's evidence of mopping with a dry rag 1. Mrs Stambolziovski gave evidence that she, her husband and her daughter mopped the floors but she used a dry rag rather than a mop. She denied that she mopped the external laundry with a dry rag or otherwise. In view of the language challenges of Mrs Stambolziovski, I do not think this evidence assists the defendants to any material extent. (vi) The approach to the agent after the accident 1. Mrs Stambolziovski gave evidence that she went to the agent, the second defendant, to obtain a letter confirming that the toilet leaked. She said, "the solicitor was asking for" the letter. She said her visit occurred in the beginning of 2010 after she had recovered. Carmelo ("Charlie") Dimarti, the relevant representative of the agent, refused to provide that letter. Mrs Stambolziovski stated, "he [apparently Mr Dimarti] said to me - but I remember clearly because Sasha [her son] had told me on two or three occasions that there was a leakage from the toilet." 2. The meaning of this answer was unclear as to whether Mrs Stambolziovski was recounting the words of Mr Dimarti or was providing her recollection of what her son, Sasha, said to her. 3. The preferred construction of her testimony is, in my view, that Mr Dimarti was conceding to her that Sasha had told him two or three times that there was "leakage from the toilet" at the time that he, Mr Dimarti, (without explanation) refused to provide a letter. This apparently occurred at a time when the toilet had not been repaired. Mrs Stambolziovski gave clear evidence to this effect later in her evidence, suggesting that the construction I have given of the earlier answer was her intended meaning. 4. Mrs Stambolziovski also gave evidence that her visit was preceded by a visit by her son, Mr Sasha Stambolziovski, to the agent also requesting the letter. 5. The conversation between Mrs Stambolziovski and Mr Dimarti was corroborated by the daughter-in-law of Mrs Stambolziovski, Gordana Stambolziovski, who said she was present when the conversation occurred. She understood "Sasha's lawyer was requesting a letter about the leakage of the toilet." She stated: "We obviously spoke to Charlie [Dimarti] in regards to the letter, and Charlie obviously said to me that he was aware of Sasha's complaints about the - obviously the leakage of the toilet on many occasions and Charlie said to me that he had forgotten to lodge or record that particular issue for the leakage of the toilet." 1. Thus, both Mrs Gordana Stambolziovski and the plaintiff gave evidence that they attended the agent's office, both said it was because of "the solicitor" or "Sasha's lawyer" requesting a letter about this leakage of the toilet, and the plaintiff said it occurred at the beginning of 2010. Mrs Gordana Stambolziovski did not give a date for this event. 2. Mr Sasha Stambolziovski's evidence indicated that the visits to the agent occurred in late 2009 or early 2010 "about three or four months" after the fall. Mr Sasha Stambolziovski said that his mother, the plaintiff, asked him to visit the agent. He also referred to a letter from the solicitors "asking me to go to the real estate agent and get the letter." 3. The owner sought production of the solicitor's letter. Initially Mrs Stambolziovski and her solicitor said there was nothing to produce. Subsequently a letter dated 11 April 2011 was produced. The solicitors were not retained until mid-2010. The letter produced did not contain a request to visit the agent or obtain a letter from it. In those circumstances, I cannot conclude that the visit to the agent was a consequence of the solicitor's advice, either by letter or otherwise. 4. Mrs Stambolziovski's evidence in this regard was in error. Even if both Mrs Stambolziovski and Mr Sasha Stambolziovski (leaving aside the evidence of a similar date by the defendants' witnesses) were hopelessly wrong as to the date of the visit to the agent, still there is no letter that advises the plaintiff to visit the agent to obtain a letter or evidence confirming the leaking toilet. 5. Mrs Stambolziovski by her counsel ultimately submitted that the visits to the agent were later in time, in these terms: "Further if the purpose of the visit to the real estate agent was to seek a letter from the agent to evidence the fact that complaints had been made that the toilet be repaired then this would make a December 2009 request nonsensical. If the agent refused to provide the letter (as the defendants say they did), given that the toilet was not repaired on the plaintiff's case probably until about January 2010 or later, there were 2 simple solutions for the plaintiff at that point. Firstly she could have invited the agent around to inspect the still leaking toilet. Secondly given that the agent refused to provide the relevant letter at that point the plaintiff could have to obtain the relevant evidence (that apparently being on her mind at the time of the request) have taken photographs of the leak or video evidence of the leak and had it formally documented at that point. That fact that none of these steps were taken strongly suggests that the suggested date that the requests were made for the letter in about December 2009 cannot be right." 1. Mrs Stambolziovski went on to submit that the visit to the agent was "most probably sometime after April 2011". Of course this submission has validity only so long as Mrs Stambolziovski's account is accepted. It has no validity if there was no leaking toilet since Mrs Stambolziovski in those circumstances could not have invited the agent around to inspect the "still leaking toilet" or "taken photographs of the leak". 2. If that were the position - that there was no leaking toilet - then Mrs Stambolziovski was seeking a letter because there was no alternative method of proof of the leaking toilet. In view of the consistent evidence of Mrs Stambolziovski, Mr Sasha Stambolziovski, Mr Dimarti and Mrs Margherita Dimarti that the visits to the agent occurred in around late 2009 or early 2010, I am not persuaded that I should find that the request for a letter from the agent was prompted by advice or a request from solicitors. 3. This circumstance weakens the plaintiff's account of her visit to the agent and indicates I should be more cautious about accepting her evidence of what the agent said and his alleged admissions. 4. I found Mrs Gordana Stambolziovski's evidence to be of little value. She was unable to recount when the conversation occurred or what was said with any particularity, and she repeatedly used the term "obviously" which suggests that her evidence was based on reconstruction or conclusion from other material rather than her recollection of what occurred. 5. Natalie Dimarti, the daughter of Mr Dimarti, gave evidence that while she worked at the family's real estate business Mr Sasha Stambolziovski came to the office to ask for a letter but she did not hear that conversation. She said that a few days later Mrs Stambolziovski came to the agent's office with her husband, Mr Simon Stambolziovski. They had brought a box of beer and asked Mr Dimarti about the letter. Ms Natalie Dimarti heard Mr Dimarti say, "It's illegal and I'll go to gaol." 6. On two further occasions within a couple of weeks of Mr Sasha Stambolziovski's visit, according to Ms Natalie Dimarti, Mrs Stambolziovski came to the office and asked Ms Natalie Dimarti, "Is the letter ready?" to which Ms Natalie Dimarti responded, "There isn't a letter" or similar words. Mr Dimarti did not put these later conversations to the plaintiff in cross-examination, although, as Mr Dimarti acted for the second defendant and has no legal qualifications, the significance of that matter may be limited. 7. In cross-examination Ms Natalie Dimarti accepted that the occasion when the case of beer was provided was in December 2009 or December 2008. She kept no notes of these occasions when the letter was requested. 8. Mr Dimarti gave evidence that he and Mr Sasha Stambolziovski had known each other for a long time. Mr Sasha Stambolziovski came into the office three or four months after the accident. Mr Dimarti's evidence on this matter was as follows: "And all Sasha asked me, he said to me, 'Brother, I wanted to ask you for some help', and I said, 'Yes, what kind of help?' He said, 'My mum had an accident at the house, as you know, we need you to make a letter to say that - that there was a leakage in the toilet, that the accident happened. Will - you know, it cost you nothing to do that for us.' And I said, 'No, I'm sorry. I can't do that.'" 1. Further, Mr Dimarti recounted: "Sasha asked me you got nothing to lose and I said, 'No, look, I cannot do it. … I cannot do it because [it] was not legal [to do] it and I'm also Justice of the Peace' and I said 'I don't lie. I can't do things. I can't do fake letters. I cannot provide you with some evidence which I'm not entitled to. I mean, at the end of the day, this is something that doesn't exist.'" 1. Mr Dimarti further said: "Well, I didn't feel it was legal because I knew there have never been any leakage in the toilet. I knew has never been any water leakage…has never been any leakage, has never been any report of a leakage, has never been any water, so why should I go and lie to a letter to say, yeah, take a letter but Sasha said to me, 'It cost you nothing, brother. There' s nothing - nothing to do with you. It doesn't cost you anything. All you got to do is got to do the letter to us.'" 1. According to Mr Dimarti, about a week later Mrs Stambolziovski came to the office and said: "'Sasha told me you got a letter ready for me.' I said, 'What letter are you talking about?' She said, 'I don't know. Sasha told me to ask you for a letter.' I said, 'I don't have any letter for you, I'm sorry.'" 1. Mr Dimarti then recounted subsequently how Mr Simon Stambolziovski and the plaintiff came to the office with a box of beer. He testified: "They come along. They sit down. They brought me the beer. I said, 'Thank you very much.' Then we start to talk. Then Simon said to me, 'Mr Charlie' because they called me Mr Charlie. I said, 'Don't need to call me Mr Charlie.' 'Mr Charlie, do you like our family?' and I said, 'Of course.' 'Why don't you do the letter [that] my wife ask you. Sasha ask you. Why don't you do this letter for us?' But I said, 'But I can't, Simon. That's something illegal. You asking me to do something illegal. Why should I do it for you? I'm not - I'm not in a position to do any letter for anybody,' I said, 'Because that is not exactly what happened. If you ask me to do a letter to tell you what happened, I can do you a letter, but you asking me to say something that didn't happen.' …That's exactly my words. So anyhow, he got cranky with me, the both of them they walk out." 1. Mr Dimarti denied that Mrs Gordana Stambolziovski ever came to the office and asked for a letter. He denied that the box of beer was provided because Mr Dimarti had helped Mr Simon Stambolziovski to obtain a job. It was put that Mr Sasha Stambolziovski asked Mr Dimarti "for a letter for his solicitor." And that "you were aware that there was a leak in the toilet at the rental property". Mr Dimarti responded, "Do you have a letter with you, he says that?" 2. Mrs Dimarti gave the following evidence: "A. I was on the reception desk. Charlie walked towards the front desk, because he normally sits at the rear of the office. Sasha met him at the desk and said small talk, how are you, everything like that. Then he said, 'Can you help me with a letter, stating that we reported that the toilet was leaking but the owner didn't fix it? That way my mother can do a compo'. Q. What did you hear Charlie say in response? A. He said, 'Oh, no, I can't do that because you never reported a leaking, sorry, toilet.' Q. What did Sasha do after that? A. He continued to talk to Charlie for a couple more minutes. Then after a while he got angry and left. Q. After that incident, did Mrs Blaga Stambolziovski come into the office? A. Yes, about a week later. Q. What happened when she came into the office? A. She said, 'Sasha sent me to pick up the letter.' I was at the reception desk. She said to me, 'Sasha sent me to pick up the letter,' and I said, 'What letter?' She goes, 'Oh, the letter about the leaking toilet,' and I said, 'No, we're not doing any letter because you never reported a leaking toilet.'" 1. Mrs Dimarti also gave evidence of a subsequent occasion when Mrs Stambolziovski came to the office and spoke to her and Mr Dimarti: "She sort of addressed both of us, yes, and she said, 'Well, why didn't you give us the letter?' And Charlie got up and walked towards the front counter and he said, 'You know, you've got to be careful why - what do you want this letter for?' And she said, 'Oh, it's not my idea. It's Sasha's', something like that." 1. Mrs Dimarti also denies that Mrs Gordana Stambolziovski was ever present in these conversations. 2. There were difficulties with both sets of witnesses in respect of these conversations. Mrs Stambolziovski submitted that there was no reason for her to return as the request for the letter had been strongly refused by Mr Dimarti. That may point to a milder rebuff by Mr Dimarti than he gave in evidence, but I do not think it is of any real assistance in resolving the competing evidence. 3. Mr Dimarti's evidence was unsatisfactory in some respects. He gave evidence about not having a camera although he admitted that there was one on his iPhone. His explanation was that he did not know how to use it. 4. He gave evidence of producing the initial condition report to the Court. It was accepted that he did not. He was suspended for a period from being a director of the real estate company, the second defendant, because of the late banking of a trust account cheque, and it was submitted that he was less than frank in disclosing this. But when he was directly asked about it he did disclose it. Whether, as the plaintiff asserts, this was the reason he was not a director was not satisfactorily established, as there was no evidence to the effect that he was a director at the time of the suspension. 5. Mr Dimarti was not a careful witness. He often failed to focus on the meaning of the question and was inclined on occasion to voice his reaction to a question rather than to answer it, such as when he was asked about whether he had talked to his wife and daughter about the case. His response was: "A. This case is boring, Mr Daley, what's there to talk? This is a boring case. Extremely boring and fake. Two words to describe, boring and fake. Q. You've talked to your wife and daughter about it? A. I've talked about boring and I talk about fake. Two answers. No more than that. There's nothing to talk about it. It's boring. Q. But your daughter and wife know what you allege occurred with Sasha and with the plaintiff and her husband, don't they? A. Because they were present. Q. I'm suggesting to you because you've talked about it? A. No, no, because they were present. Q. So you say you haven't talked to them about it at all? A. No need to, boring." 1. Mrs Dimarti was also challenged in respect of her evidence that she did an initial inspection. As the expected record of this inspection is not available, her account is weakened. However, Mr Sasha Stambolziovski did sign an acknowledgement of receiving a condition report at the time of receiving the lease, and it was not disputed that a practice of carrying out an initial inspection existed. Thus, the absence of the document could have been because no inspection occurred, or no record of the inspection was made, or that the record has been lost. I was not inclined to find that no inspection had occurred but, similarly, was not inclined to find that the inspection had verified that no leaking occurred when the toilet was flushed, as Mrs Dimarti had testified. However, this matter, in my view, said little about the honesty of Mrs Dimarti's answers whilst giving her evidence. 2. It was not disputed that Mr Simon Stambolziovski came into the office bearing a box of beer in December 2009. It seems to me to be unlikely that this was a present for Mr Dimarti for finding him some work in 2008, as Mr Simon Stambolziovski asserted, especially when the accident had occurred in August 2009 and Mr Dimarti was the person who was said to have failed to act on complaints and effect repairs to the leaking toilet so as to cause a serious injury to Mrs Stambolziovski. The connection between the box of beer being provided and the request for a letter concerning the leaking toilet, which also occurred in about December 2009, (and on the defendants' evidence at the same meeting), seems more likely. 3. Mr Simon Stambolziovski's denials of requesting a letter at the time of the gift of the box of beer were also weakened because of one aspect of his demeanour. I raised with counsel the observation that Mr Simon Stambolziovski did not look at Mr Dimarti when Mr Dimarti in person put to him questions about Mr Simon Stambolziovski requesting a dishonest letter. It was submitted on behalf of the plaintiff that this was a result of a hearing problem Mr Simon Stambolziovski has and the involvement of the interpreter. That explanation has some force in respect of Mr Simon Stambolziovski's behaviour during the questions of Mr Dimarti but less force when he was giving his denials. However, I am not inclined to put much weight on Mr Simon Stambolziovski's demeanour because looking a person in the eye to rebut a false allegation may be in part a factor of one's personality, and the difficulty of assessing demeanour is magnified by the involvement of an interpreter. 4. One other matter in favour of the second defendant's account as to the request for the letter is that the detail of the conversation provided by Mr Dimarti was greater than that provided by the plaintiff or Mr Sasha Stambolziovski. I also think that the admissions attributed to Mr Dimarti and denied by him are unlikely to be made in circumstances where he is refusing to provide a letter. (vii) Evidence of complaints about the leak 1. Mr Sasha Stambolziovski gave evidence that "When I went sometimes to pay the rent I told Mr Charlie [Dimarti] that there's a leak in the loo." Curiously, subsequently, Mr Sasha Stambolziovski was asked about when he came in to see Mr Dimarti relative to when the accident occurred and he said, "No, I can't ask you to fix the toilet before the accident." In any event, according to Mr Sasha Stambolziovski, Mr Dimarti responded to his comment about there being a leak in the loo by saying, "[T]he owner's son lives at the backyard, don't tell me, tell him," to which Mr Sasha Stambolziovski said, "I've got nothing to do with the owner's son, you're the - I pay the rent here, and you're the one that I have to tell." 2. When asked how long after he had noticed the leak had this conversation occurred, Mr Sasha Stambolziovski said, "I don't know. I don't know, four, five weeks." Mr Sasha Stambolziovski said that on two or three further occasions, "every single time I used to go there to pay the rent" he would say to Mr Dimarti, "What's happening with the leak?" Mr Dimarti would say, "Don't worry about it. It'll get fixed." 3. Mr Sasha Stambolziovski did not mention speaking to either Mr Mladen ("Mick") or Mr Aleksandar Nestorovic about the leak. 4. After the accident Mr Sasha Stambolziovski had no further dealings with Mr Dimarti other than the request for the letter about three or four months after the fall, which was a day or a few days before the visit by Mrs Stambolziovski to Mr Dimarti described earlier. At no stage did Mr Sasha Stambolziovski close the door to the external laundry and toilet or do anything to prevent access. 5. Mr Simon Stambolziovski gave evidence that when he visited the house whilst Mr Sasha Stambolziovski was living there but before he and the plaintiff had moved in, he would commonly see Mr Aleksandar Nestorovic and sometimes Mr Mick Nestorovic. He said that the first time he met Mr Mick Nestorovic he told him, "There was some leakage." This occurred "approximately about a week before the case" which I understood to mean a week before the accident. Mr Mick Nestorovic is alleged to have responded that he should talk to the agent. 6. The only other conversation about the leaking toilet involving Mr Simon Stambolziovski, according to his account, was after the accident when he said to Mr Mick Nestorovic, "I told him, you see what happened, it's because the toilet was not fixed". Mr Simon Stambolziovski did not complain to the agent according to his account. 7. Although Mr Simon Stambolziovski gave no evidence of complaints to Mr Aleksandar Nestorovic during evidence-in-chief, in cross-examination the following exchange occurred: "Q. Mr Stambolziovski, you never told Alex Nestorovic that there was a leak in the toilet? A. INTERPRETER: My son and Alex were sitting and drinking something, I came out of the toilet and I said to him 'There's a leakage in the toilet'. I was not referring to just one person, I was talking to both of them, and I said, 'There's a leakage'." Mr Simon Stambolziovski said this conversation occurred prior to him moving into the house. 1. Each of Mr Aleksandar Nestorovic, Mr Mick Nestorovic and Mr Dimarti denied being the recipient of a complaint about the leaking toilet. Mrs Dimarti and Ms Natalie Dimarti were not asked about whether they received a complaint. 2. The agent's account of these conversations seeking the letter finds some support in the account of Mr Mick Nestorovic of a similar request from Mr Simon Stambolziovski. 3. Mr Mick Nestorovic prepared a statement for the owner's insurer, dated 28 December 2012. Paragraph 11 of that statement reads that about four or five months after the accident: "[Simon] Stambolziovski asked me to do him a favour. He asked me if I could say that the injury to his wife was our fault and make a statement to that effect so that they could claim insurance for his wife's fall. I asked him wasn't that too late but he told me that they had three years. I refused to sign something that wasn't [true]. I told him that he should talk to the Real Estate Agent." (viii) The leaking toilet 1. A matter relevant to the plaintiff's evidence and about the circumstances of the accident itself is the condition of and any repair to the toilet. 2. Evidence of a leaking toilet also turned largely on oral evidence. The plaintiff's husband, Mr Simon Stambolziovski, and her son, Mr Sasha Stambolziovski, gave evidence that the toilet leaked. 3. Mr Sasha Stambolziovski gave evidence that he noticed a leak from the external toilet about two or three weeks after he moved in. This equates to about May 2009. He also said that the leak occurred every time the toilet was flushed. 4. Mr Simon Stambolziovski gave evidence that "on occasions when I would visit my son, I would need to go to the toilet and I actually noticed that there was a - some water leaking." 5. The evidence of complaint to the agent is also relied on as evidence that the toilet leaked. 6. The owner's father, Mr Mick Nestorovic, and her brother, Mr Aleksandar Nestorovic, gave evidence that the toilet did not leak and that no repairs were effected to it. 7. Mr Mick Nestorovic lived on the premises with Mr Aleksandar Nestorovic until shortly before the lease to Mr Sasha Stambolziovski. Mr Aleksandar Nestorovic then moved into the granny flat. Mr Mick Nestorovic moved out but visited his son at the property once or twice a week, did maintenance work at the property on weekends and whenever he "had the time", and kept some tools in the external laundry. 8. Both Messrs Aleksandar and Mick Nestorovic regularly used the external toilet. Thus, although the house on the premises was rented to Mr Sasha Stambolziovski, the granny flat was not. It remained occupied by Mr Aleksandar Nestorovic. The external laundry and toilet and perhaps the rear yard generally were utilised by both the Stambolziovskis and the Nestorovics. Indeed, they occasionally had drinks together on the back patio. 9. There was no independent evidence of a leaking toilet. No photographs of the leak, no evidence from a repairer and no record of an inspection. Nor was there direct evidence that the water on the floor, on which Mrs Stambolziovski is said to have slipped, was occasioned by a toilet leak. 10. Mr Sasha Stambolziovski and Mr Simon Stambolziovski said the toilet leaked after it was flushed. But there was no evidence that it was used or flushed on the morning of 27 August 2010, or even of the last time it was flushed, or of the length of time that water remained on the laundry floor after it was flushed. Although there was evidence that "the men" used the external toilet, there was no evidence that they did not use either of the internal toilets; and, thus, no evidence that the external toilet was used in the period shortly before the fall or evidence on which such an inference should be drawn. Mr Simon Stambolziovski said, "I know that we were using the one outside and the one inside." 11. I am asked to infer that the water described by Mrs Stambolziovski was from the leaking toilet because the water was said to be present in both the toilet and the laundry. 12. The plaintiff tendered a flush cone, a rubber seal joining the pipe from the cistern to the rear of the toilet pan. Mr Simon Stambolziovski said he collected this flush cone from the external laundry toilet area shortly after Mr Mick Nestorovic was said to have replaced it in about May or June of 2010, about nine months after the fall, according to Mr Sasha Stambolziovski, or, "a while ... more than three or four months after the accident" and, "it could have been five or six months, I don't know exactly" according to Mr Simon Stambolziovski. 13. Mr Simon Stambolziovski said only he and the plaintiff were at home at the time the flush cone was replaced, whereas Mr Sasha Stambolziovski said that he had been in bed for three months at the time of the alleged repair. Mr Sasha Stambolziovski did not identify the dates when he was in bed for three months after an operation, other than that he had had his leg put in plaster for six months, and then in 2010 they put a plate in his leg. He gave evidence about the repair in these terms: "I had an operation, I was lying down in bed for three months, I don't know what they were doing outside. Then after when they changed it, my dad came inside and said, 'here - here it is, it's changed, it's fixed.'" 1. Thus, there is an inconsistency between Messrs Sasha and Simon Stambolziovski as to whether Sasha was present in the house at the time of the repair allegedly performed by Mr Mick Nestorovic. 2. Mr Simon Stambolziovski testified that he observed Mr Mick Nestorovic change the flush cone and put it "on the side". Mr Simon Stambolziovski subsequently took the used flush cone, retained it in a drawer in his bedroom and told his wife, the plaintiff, of it. Yet the flush cone was not provided to the plaintiff's expert who visited the premises to inspect the toilet and laundry to prepare a report on how the accident occurred. 3. As I said, the flush cone was tendered in evidence. There was no indication that the flush cone was defective or otherwise allowed the leak other than the oral evidence of Mr Simon Stambolziovski. No expert was called to give opinion evidence as to the integrity of the flush cone nor was the Court asked to inspect it or draw conclusions from its condition. If it was replaced by Mr Mick Nestorovic, that would be some evidence that it was defective. Again evidence of the replacement was the word of Mr Simon Stambolziovski against the word of Mr Mick Nestorovic, who denied he ever repaired the toilet or replaced the flush cone at number 47. 4. Mr Mick Nestorovic gave evidence that he was a handyman who had done a lot of plumbing - residential plumbing - for about 30 years. He gave evidence that he often replaced flush cones, that they were readily and cheaply (about $6) available from Bunnings and other stores and that he could observe no defect in the flush cone. 5. The evidence of Messrs Simon and Sasha Stambolziovski was to the effect that the flush cone was replaced after the conversations requesting a letter from the agent about the leaking toilet. The omission to gather evidence of the leaking toilet after the accident, whether by way of photographs or a plumber's report seems odd when evidence from the agent is being sought. 6. Also, if Mr Mick Nestorovic knew of the existence of a request for evidence of a leaking toilet, it might lessen the likelihood that Mr Mick Nestorovic would repair the toilet, at least in the presence of Mr Simon Stambolziovski, and leave behind the used flush cone. 7. Mr Simon Stambolziovski testified that he told Mr Mick Nestorovic apparently soon after the fall, "You see what happened, it's because the toilet was not fixed." If this occurred, the failure to have the toilet repaired for many months and the apparent lessening of (or absence of) complaints about the leaking toilet after the accident seem unlikely. 8. As stated earlier, Mr Mick Nestorovic prepared a statement for the owner's insurer dated 28 December 2012. In that statement at paragraph 10 he records that shortly after the accident he was at the granny flat with his son and he saw Mr Simon Stambolziovski: "I asked him how he was going and he said not very well. He then said, 'My Missus last week was mopping the floor in the external laundry when she slipped.'" 1. The reference in the statement by Mr Mick Nestorovic to Mrs Stambolziovski slipping whilst mopping is of some significance. It is consistent with the contemporaneous hospital and ambulance records that, read together, suggest Mrs Stambolziovski slipped on wet tiles whilst cleaning. To me, that the hospital records and Mr Mick Nestorovic's recalled conversation could each independently record that event in error seems unlikely. It seems more likely that the independent record being consistent with Mr Mick Nestorovic's statement results from the statement and the hospital record being a correct account. 2. Although a recollection of a conversation some years later would often be, at least to some degree, inaccurate, it was a conversation memorable in view of the conversation not long after where Mr Simon Stambolziovski sought from Mr Mick Nestorovic a letter stating facts contrary to the earlier conversation. This might be thought to have aided Mr Mick Nestorovic's memory of it. The plaintiff submitted that Mr Mick Nestorovic could have made up this conversation after reviewing the hospital records. That is theoretically possible, as Mr Mick Nestorovic appears to have received the medical records, some hundreds of pages, earlier in December 2012. But it does not seem likely. The hospital records do not mention "mopping" and the reference to "slipped whilst cleaning" in the records was not easily to be located especially by the untrained, such as a handyman like Mr Mick Nestorovic. 3. Mr Mick Nestorovic was challenged as being an advocate for a particular position because of his desire to give evidence of the two conversations with Mr Simon Stambolziovski. I do not see this as a proper basis to criticise Mr Mick Nestorovic or his evidence. If the first conversation was accepted, it was strong evidence against the plaintiff. It would not seem unnatural for a witness, particularly one having a close familial connection with the owner of the premises who was being sued in the proceedings, to have a desire to give that evidence. 4. Having heard his evidence, I accept Mr Mick Nestorovic as a witness of credit. He made concessions against his interests such as the danger of water on the floor. His account of these conversations in oral evidence was detailed and consistent with but not identical to the statements he had given to the insurer some two years earlier. 5. Mr Mick Nestorovic's credit was also challenged on the basis that he had avoided service. I am not persuaded that this occurred. As he was not a party, none of the documents were required to have been served on him. The content of the affidavit of service did not establish that he had been served with documents. Even if he was served in late September 2012, he appeared in court in December 2012. The circumstances of that service and his evidence about it do not assist me in assessing his credit. 6. I also note that the plaintiff has an obvious financial interest in the proceedings whereas the defendants both claim to have no interest in the outcome. Any financial interest of the owner is not obvious as she was covered by insurance. The real estate agent had no insurance but the business was conducted in the name of a company. Mr Dimarti dismissed the suggestion that a judgment against it would be costly as the company was a two-dollar company. 7. Bearing all these matters in mind, I do not accept the submission as to the falsity of the defendants' evidence about the requests by the Stambolziovskis for letters about a leaking toilet. Were it necessary, I would be inclined to favour the defendants' account of those conversations. However, it is likely that the recollection of all the parties with respect to the detail of the conversations has been adversely affected by the lapse of time. 8. If the toilet was leaking and the complaints were made, then the Stambolziovskis' account of the conversations in respect of the request for the letters is more persuasive. On the other hand, if the toilet was not leaking, not the subject of repair, and if no complaints were made, then the defendants' account must be accepted. 9. Ultimately, I am not inclined to decide this claim principally on the basis of the disputed conversations occurring sometime after the event when there is little objective evidence in favour of either account. 3. CONCLUSION 1. I am not persuaded on the balance of probabilities that the plaintiff slipped on water leaking from the toilet, as she alleges. The more likely cause of her fall was water on the floor as a result of her mopping the external laundry. The principal reasons for this conclusion are as follows. 2. First, the hospital records are inconsistent with her account and provide a contemporaneous record by as many as three different persons that she told the hospital people that she slipped whilst cleaning. The reference in the hospital records to the "bathroom" rather than the "laundry" is of no significance given the presence of the toilet room (for which "bathroom" is an alternative term). Nor does the absence of the word "mopping" assist the plaintiff in circumstances where the hospital records, record the presence of wet tiles in connection with cleaning. 3. Secondly, the plaintiff's account of her fall was weakened by her having initially reported to have been a visitor rather than a resident at the time of the fall. This evidence of a changing account could have been remedied by a statement of the plaintiff earlier than the dates of the expert reports, but no earlier account of the plaintiff was in evidence. 4. Thirdly, there was an absence of independent evidence that the toilet leaked. On the plaintiff's account, for many months after the accident the toilet continued to leak. But there was no evidence other than the oral testimony of her family to support this. The absence of independent evidence that the toilet was repaired is to the same effect. There were no photographs of the leak or of the repairs, no evidence that the flush cone was defective or evidence from a plumber to that effect. To the contrary, the evidence of Mr Mick Nestorovic was that it was not. 5. Fourthly, there was an absence of evidence of any real complaint about the leaking toilet after the accident, even when it remained unrepaired. Here the seriousness of the injury, if it was due to the leaking toilet, would be expected to have produced more serious, frequent, or recorded complaints. 6. Fifthly, the statement of Mr Mick Nestorovic in December 2012 that he was told by Mr Simon Stambolziovski that the fall occurred while Mrs Stambolziovski was mopping. This is consistent with the hospital records, and, in my view, is likely to be independent of them since it refers to "mopping" and "laundry," rather than "cleaning" and a "bathroom" and also because I was not persuaded that Mr Mick Nestorovic could realistically, or did, derive information from the hospital records to falsely invent this conversation. 7. My assessment of Mr Mick Nestorovic's credit was based on the detail of his evidence about conversations, upon the manner of his testimony, and upon his apparent lack of a financial interest in the result of the proceedings. These matters strengthen my view that his evidence should be accepted. 8. Sixthly, my view of Mr Mick Nestorovic fortifies my inclination to accept the evidence of the Dimartis rather than the Stambolziovskis as to the nature of the conversations requesting the letter about the leaking toilet. This is because Mr Mick Nestorovic received a similar request from Mr Simon Stambolziovski, and also because of the timing of the agreed provision of the box of beer. 9. However, I am disinclined to put substantial weight on these oral conversations subsequent to the accident for the reasons earlier given. 10. As a result of this conclusion, the plaintiff's claim for a breach of duty by the defendants failing to remedy the leaking toilet, and that this failure caused the plaintiff's injury, cannot be sustained, and the provisions of s 5B and s 5D of the Civil Liability Act 2002 cannot be satisfied. 11. In view of this finding, there is no utility in me considering the defendants' alternative submission that there was no breach of duty, even on the plaintiff's evidence, or in me making an assessment of the plaintiff's damages. 12. The second defendant, although a company, was either unrepresented or represented intermittently by Mr Dimarti. I decided in Everett v Neale [2012] NSWDC 73 at [147]-[150] on the authority of Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 that an unrepresented party is not entitled to costs associated with time spent preparing and defending their claim. Although the second defendant is a company, I think this rule should also apply to the second defendant to the extent that a qualified legal practitioner did not legally represent it. 13. The orders of the Court, therefore, are: 1. Judgment in favour of the defendants against the plaintiff. 2. Plaintiff to pay the first defendant's costs of the proceedings. 3. Plaintiff to pay the second defendant's costs of the proceedings, those costs not to include any compensation for time spent by Carmelo or Margherita Dimarti in preparing and defending this case. 4. All cross-claims dismissed with no order as to costs. 5. I defer entry of any order in respect of costs for 14 days and thereafter until further order in the event that any party seeks to argue that a different costs order should be made. ********** 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. Decision last updated: 05 March 2015