Agalidis v Topouzoglou
[2013] VCC 851
•27 June 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-03068
| TOM AGALIDIS | Plaintiff |
| v | |
| JOHN TOPOUZOGLOU | Defendant |
---
JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15, 16, 17, 20, 21, 22, 23 and 24 May 2013 | |
DATE OF JUDGMENT: | 27 June 2013 | |
CASE MAY BE CITED AS: | Agalidis v Topouzoglou | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 851 | |
REASONS FOR JUDGMENT
---
Subject: DAMAGES
Catchwords: Duty of care
Legislation Cited: Wrongs Act 1958, s14B(3)
Cases Cited:Adeels Palace v Moubarak (2009) 239 CLR 420
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M A Nightingale with Mr A E Hill | Shine Lawyers |
| For the Defendant | Mr C J Blanden SC with Ms E Hill | Hunt & Hunt |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks damages against the defendant for injuries suffered by him on 14 August 2010. In his Further Amended Statement of Claim, the plaintiff asserts that on the above date he sustained injury when, whilst he was on a ladder supplied by the defendant ( the ladder), the ladder collapsed, causing the plaintiff to fall heavily to the ground.
2 It is asserted by the plaintiff that his injury arose by reason of the breach by the defendant of the duty owed by him to the plaintiff as the occupier of the residential unit at 29 Golden Avenue, Chelsea where the accident occurred (the house), in that the defendant, when erecting the ladder so as to enable the plaintiff to gain access to a satellite dish which was located on the roof of the house, failed:
(i) firstly, to properly assemble the ladder by securing two safety clips which were fitted to the ladder;
(ii) secondly, to properly secure the ladder so as to prevent it from collapsing by footing the ladder.
3 There is no issue in this proceeding that on 14 August 2010, whilst in the course of removing a satellite dish which was affixed to the facia of the house, the plaintiff fell from a height onto his feet and suffered a number of injuries which included an avulsion fracture of the medial malleolus of the left ankle joint which required treatment in the form of an open reduction and an internal fixation of the fracture by the placement of two securing screws.
4 Neither is it in issue that, at the time at which the plaintiff suffered injury:
(i) the defendant was the occupier of the house;
(ii) the defendant owed to the plaintiff a duty of care pursuant to s14B(3) of the Wrongs Act 1958 with respect to the activity in which the plaintiff was engaged in at the house;
(iii) the plaintiff was employing the ladder to gain access to the satellite dish which was affixed to the facia of the house.
5 Considerable issues arise however as to:
(i) the circumstances in which the plaintiff came to be undertaking the activity in which he was engaged at the time at which he was injured, namely, the removal of the satellite dish;
(ii) whether it was the plaintiff or the defendant who had erected the ladder prior to the plaintiff’s injury;
(iii) the precise location of the satellite dish, and in particular whether, in removing the dish, the plaintiff:
§ could have done so by working from the ladder (which is the plaintiff’s position); or
§ was required to gain access to the area in which the dish was affixed by employing the ladder to gain access to the roof of the defendant’s garage and thereafter, walking along the roof to gain access to the satellite dish (which is the defendant’s position).
(iv) the precise circumstances in which the plaintiff came to suffer injury whilst at the house.
The design and operation of the ladder which the Plaintiff was using at the time of his injury
6 There is no issue between the parties that the Court ladder, which is Exhibit 4, is a ladder of identical shape and design to that which the plaintiff was using as at the time of his injury.[1]
[1]It is the defendant’s position that the Court ladder is the actual ladder in question the plaintiff’s position is to the contrary.
7 The Court ladder can be configured as an A-frame/stepladder or as a Straight ladder.
8 Exhibit B, Photograph 4, shows the ladder configured as a straight ladder;
9 Exhibit B, Photograph 7, shows the ladder configured as an A-frame stepladder.
10 When configured as an A-frame ladder, the ladder consists of two sections, one of which is longer than the other. For the purpose of convenience:
· the longer section of the ladder depicted in Exhibit B, Photograph 7, was described in the course of the trial as “Section A”;
· the shorter section of the ladder depicted in Exhibit B, Photograph 7, was described in the course of the trial as “Section B”.
I will employ these descriptions in the course of these reasons.
11 The ladder is fitted with two sets of securing clips, each set comprising of two clips.
12 The two longer clips (the X Clips) are designed to secure the ladder in its A-frame configuration
13 The two shorter clips (the Y Clips) are designed to secure the ladder in its straight configuration.
14 Each set of clips operates such that each clip hinges from Section A of the ladder and closes over a lug located on Section B of the ladder.
15 For the purpose of describing the ladder in the course of these reasons for judgment, I will refer to:
· the section of the ladder identified as Section A in Exhibit B, Photograph 7, as “Section A”;
· the section of the ladder identified as Section B in Exhibit B, Photograph 7, as “Section B”;
· the longer securing clips identified in Exhibit B, Photograph 7, as the “X Clips” and
· the shorter securing clips identified in Exhibit B, Photograph 7, as the “Y Clips”.
16 It is not in issue that the process of configuring the ladder from an A-frame/stepladder to a straight ladder, involves moving the legs of the ladder from an A-frame configuration to a position in which Section B is positioned so that it acts as an extension of Section A.
17 To achieve this purpose, Section B is rotated around a pivoting point located approximately 20 centimetres below the top of section A until it reaches a position where by reason of:
· the juxtaposition of the bracket through which the pivoting point for Section B is created; and
· the overlap which is created between the lower portion of Section B and the upper portion of Section A;
any further movement outwards between the two legs is prevented.
18 When the two sections are moved into this configuration, their position is secured by the positioning of the two Y Clips which each close over a lug located on each side of Section B.
The agreement that the Plaintiff would remove the satellite dish
19 The plaintiff is the defendant’s uncle.
20 Approximately two days prior to 14 August 2010, the defendant had moved from his previous residence at the house to a new house in Gerald Court. In the afternoon of 14 August 2010, the plaintiff, with his wife and two children, visited the defendant, his wife and their two children, at Gerald Court. It is not in issue that whilst there:
· A conversation took place between the plaintiff and the defendant as to the work to be completed before the house was vacated in which the defendant volunteered that the only thing which remained outstanding was the removal of a satellite dish which was located at the house, and thereafter its relocation at Gerald court;
· The defendant informed the plaintiff that the contractor had been engaged to undertake that work.
· In the course of this conversation the plaintiff advised the defendant that the plaintiff could remove the satellite dish and relocate it for the defendant, which would save the defendant the costs associated with the employment of a contractor to undertake the works.
21 A considerable dispute arises between the parties as to the circumstances in which the plaintiff thereafter came to attend the property for the purpose of removing the satellite dish.
(i) The plaintiff described the conversation which occurred between him and the defendant as to this issue as follows:
Q: “What was the suggestion that you made to him?---
A: That we could do it together. It wouldn’t be too hard to change the dish from one house to the other.
Q: What was the benefit of that for him?---
A: He would save $300.
Q: What was his response to your suggestion?---
…
A: Johnny agreed that he wanted to do that.
Q: So what arrangements were made?---
A: The arrangements were made that Johnny would get the ladder and tools out of the garage, and I had the vehicle parked in front of the house, and I got the vehicle to back it up to put the ladder into the station wagon.
Q: Where was the ladder?---
A: In the garage.
Q: Who got the ladder?---
A: Johnny.
Q: Where was the ladder put?----
A: In the rear of the station wagon.[2]
[2]The plaintiff was referring to his own vehicle
Q: Who laid the seats down for the ladder to go in?---
A: I did.
Q: Was there also tools?---
A: Yes.
Q: Whose tools were they?---
A: Johnny’s.
Q: Where did they come from?---
A: The garage.
Q: What tools did you decide to take?---
A: We took a number of tools in a black bag. There was spanners, socket set, pliers, screwdrivers.
Q: After packing the car then what did you both do?---
A: I drove with Johnny in the passenger seat to the house in Golden Avenue.”[3]
[3]Transcript (“T”) 43-44
(ii) Obilia Agilidis, described the conversation between the plaintiff and the defendant on this topic as evolving differently. She said:
A: We were having a general chit-chat and at some point in the conversation, John mentioned that he still had to collect a satellite dish from his other premises and it was going to be an expensive cost and could Tom help him, could they go together and bring it back.
…
Q: Who brought that up?---
A: John.
…
Q: What did Tom say?---
A: ‘Yeah’.
Q: What happened after that conversation?----
A: At that time, Tom was sitting next to me, John got up and left for a few minutes and then he came back and him and Tom left together, and at some point – I don’t remember who popped their head in and said ‘We’re going’ and that’s the last I saw of them at that premises.”[4]
[4]T344-345
Not withstanding this difference, both the plaintiff and his wife were consistent in their evidence that the defendant accepted the plaintiff’s proposal that the plaintiff would remove the satellite dish from the house
(ii) The defendant’s evidence as to the relevant discussion was as follows:
A: “We had a discussion with my uncle about what was remaining in the unit which was a satellite dish.
Q: And did you say anything to him about what was to happen with the satellite dish?---
A: Yes, I did explain to him that I had organised for a professional satellite man to come and remove it, put it in my house, and that’s about it.
Q: What occurred after you told your uncle that that’s what had been organised?---
A: He insisted telling me that he can do it for me, to save some money.
Q: Prior to this day, had your uncle ever done any domestic handyman type work for you?---
A: No.
Q: Did you, when the suggestion was made by your uncle that he do the removal of the dish, did you accept his suggestion or not?---
A: No, I did not. I tried to convince him not to go.”[5]
[5]T429
The defendant, in the course of further evidence as to the conversation, said:
(i) that he did not want the plaintiff’s assistance to remove the satellite dish;[6]
[6]T430
(ii) that he tried to convince the plaintiff that he should not undertake the work;[7]
[7]T510
(iii) that the conversation which involved the plaintiff insisting that he wanted to undertake the work and the defendant asserting that he did not want the plaintiff to undertake the work involved both parties raising their voice.[8]
[8]T514
(iv) The defendant’s evidence as to the conversation between and the plaintiff was supported by his wife, Aspaso Topouzoglou, who described the relevant conversation in the following terms:
A: “Basically, John didn’t want him to remove the satellite dish … .
…
A: John insisted that he didn’t want the job to be done by Tom Agalidis and Tom Agalidis believed that he could do it and he didn’t take – he didn’t listen to John when John said that he didn’t want the job to be done by Tom.
…
A: … there was a heated up discussion and that was – it’s not exactly word by word, it’s just what I remember … .[9]
…
Q: Was the conversation in more than one room, was it, or did it all take place in the room where you had been trying to set up the PlayStation for the children?---
A: The heated argument that I heard?----
Q: No, I mean just the conversations?---
A: Conversations? What I heard took place about – are you saying about the removal of the dish or other conversations?---”[10]
[9]T565
[10]T592
22 The parties agree that the ladder which was to be employed by the plaintiff to gain access to the dish was subsequently removed from the garage at Gerald Court and transported in the rear of the plaintiff’s station wagon to the house, the plaintiff driving his vehicle between the two properties, with the defendant seated in the front passenger seat.
23 There is an issue between the plaintiff and the defendant as to who loaded the ladder into the plaintiff’s car.
24 It was the plaintiff’s evidence that the defendant had removed the ladder from his garage, brought it out to the plaintiff’s vehicle, which the plaintiff had backed into the defendant’s driveway, from which position it was loaded into the defendant’s vehicle.[11]
[11]T44
25 The plaintiff said, having arrived at the house, the defendant took the ladder out of his vehicle and set it up as the plaintiff opened the bag of tools which had been supplied by the defendant “to look inside and see what I’ll need”.[12]
[12]T47
26 The plaintiff was questioned as to any discussion which preceded this activity, to which he replied:
“The substance of the discussion was that I would get the tools ready I needed to work up on the roof or up on the ladder for, Johnny was going to set up the ladder, he was going to go into the house and undo the striker plate that the coaxial cable was attached to while I worked up on the ladder to undo the dish.”[13]
[13]T47
27 In the course of cross-examination, it was put to the plaintiff that he had removed the ladder from the defendant’s garage and placed it into his vehicle, to which the plaintiff responded:
A:“I wouldn’t know where his garage – his ladder was Your Honour. I wouldn’t have a clue.
Q:You would have seen where his garage was when you had a look around the property upon arrival, hadn’t you?---
A:No, Your Honour. We looked in the house, inside the house, we didn’t go outside of the house Your Honour.
Q:Where would you normally keep a ladder?---
A:Well Your Honour, I keep mine around the back of the unit, at my parent’s unit Your Honour.
Q:If you had a garage, where would you keep a ladder? Would you keep it in the garage, do you think?---
A:Your Honour, I do not have a garage.
Q:Is it a logical place to keep a ladder, a garage?---
A:I can’t answer that Your Honour.
Q:Don’t know. You were aware he had a garage weren’t you?---
A:Yes, Your Honour.”[14]
[14]T196
28 Whilst the plaintiff was challenged in cross-examination upon the issue as to who had taken the ladder from the Gerald Court Garage, at no time was it suggested to the plaintiff by counsel on behalf of the defendant that the plaintiff had become aware of the location of the ladder within garage, by reason the fact that the defendant had earlier taken him upon a tour of the garage.
29 In the course of her evidence, Obilia Agilidis was asked as to the nature of the tour which she and her husband were given at the Gerald Court property.
Q:“Did you go outside when you were shown around?‑‑‑
A:Just out the back door.
Q:Did you go into the garage at any point?‑‑‑
A:No.”[15]
[15]T344
30 At no point in cross-examination was this evidence challenged on behalf of the defendant. Notwithstanding the above, the defendant described the plaintiff’s actions in obtaining the ladder from the Gerald Court garage in the following terms:
“… he just sort of raced off. Went to the back, I obviously followed him, because I already had done the guided tour with the house and all that, and went to the garage, picked up the ladder and put it in his car and off we went”[16]
[16]T430
and further:
Q:“The plaintiff and his family came to visit you. The guided tour around the new house only involved the inside of the house; is that not right?---
A:No, went outside as well. Showed outside, the garage and everything.
Q:Where’s the garage?---
A:Back of the house.
Q:How do you get into the garage?---
A:There’s a door and you open – there was a door going into the garage.
Q:Do you have – as at 14 August 2010?---
A:Yes.
Q:Do you have motor vehicles in the garage?---
A:No, Your Honour. We had already moved our stuff in so the garage had a lot of clutter inside, a lot of boxes and all that. We were still unpacking and doing, because we moved in on 12 August so we only had two days since the plaintiff came and saw it.
Q:And – so the cars were outside in the street or?---
A:I can’t recall. I can’t remember.
Q:And whereabouts was the ladder in the garage on that day?---
A:I can’t remember to be honest, Your Honour.
Q:You’d only been there for a few days so you wouldn’t have had a usual spot for it by then, I suppose?---
A:No, no.
Q:Was the garage – did it just have some things in it or was it pretty, as you described cluttered up?---
A:There were a few stuff in there (sic).”[17]
[17]T 506
The arrival at the house and the erection of the ladder
31 It is the plaintiff’s position that, having arrived at the house, he parked his car in front of the house and that it was the defendant who:
· erected the ladder in its straight ladder configuration; and
· positioned the ladder such that the feet of the ladder were located on the concrete driveway of the house, and the upper end of the ladder was supported against the front edge of the roof of the garage.
32 In contrast to this position, the defendant asserts that as he travelled with the plaintiff to the house, he continued to attempt to dissuade the plaintiff from undertaking the work to remove the satellite dish, and that it was the plaintiff who assembled the ladder, explaining:
A:“Up to the last minute, I tried to convince him, Your Honour. He wouldn’t listen. So I didn't take any more bother, I just went to the – I went into the unit and started doing some domestic cleaning inside. … .[18]
[18]T431
…
Q:“Are you able to time the removal – sorry, I withdraw that. Did you observe the ladder being removed from the back of the vehicle?‑‑‑
A:No, I didn't.
…
Q:Where did you go after you arrived at the unit?‑‑‑
A:I went into the unit to start cleaning, as I mentioned before.
…
Q:Where was your uncle at this time, as far as you were aware?‑‑‑
A:Probably outside. I don’t really know, to be honest with you. I don’t recall. Maybe he was outside.
Q:Had he come into the unit with you?‑‑‑
A:He only came in once to take out from the plugs underneath, for the satellite dish, to move – he asked me to do it, which I rejected. I didn’t want any part of it.
Q:When you said he came in once, how long after you entered the unit did he come in?‑‑‑
A:I can’t recall how long, maybe 10 or 15 minutes later.
Q:You mentioned the plug. Did he do anything in relation to the plug when he came inside?‑‑‑
A:I didn’t notice because I was cleaning the walls, so I was doing my own job.”[19]
[19]T431-432
33 My first impression of the defendants evidence that he had nothing to do with the erecting of the ladder, in either a supervisory or other capacity, given that it was the defendant who was familiar with the way in which the ladder should be assembled and not the plaintiff, is that this position is unlikely.
34 There are no witnesses to the happening of the incident in which the plaintiff was injured or any actions or activity undertaken by the plaintiff or the defendant from the time at which the plaintiff’s vehicle arrived at the house until the happening of the incident.
35 Evidence was adduced by the plaintiff as to alleged admissions made by the defendant that the defendant had been involved in the erection of the ladder. This evidence came from:
· Obilia Agilidis , the plaintiff’s wife
· Katina Agalidis, the plaintiff’s sister (who is the defendant’s aunt); and
· Despina Teodoridou the plaintiff’s mother (who is the defendant’s grandmother).
36 Obilia Agilidis said that after the accident, when she arrived at the house, the defendant was distressed, pacing, talking to himself and swearing in Greek.[20] When she asked him what had happened, his response was:
“I’m such an idiot. I got distracted and I didn’t – I didn’t put one of the clips on. He kept apologising. ‘I’m so sorry, I’m so sorry’.”[21]
[20]T364
[21]T347
37 Ms Agalidis said that the defendant made similar statements to her as they returned from the house to the Gerald Court property as occupants of the same car.
38 Despina Teodoridou, the plaintiff’s mother, said that she had asked the defendant what had happened and that the defendant had responded to her in Greek that he was a “dick head. … ‘I didn’t put the latch in the ladder and that’s why Tom fall down by the ladder.’ This is the truth.”[22]
[22]T417
39 Katina Agalidis, the plaintiff’s sister, described herself as having, prior to the accident, a very close relationship with the defendant. “We discussed anything and everything” and said that whilst she no longer saw the defendant, “That’s his doing not mine”.[23]
[23]T383
40 Ms Agalidis said that about two weeks after the incident, she had seen the defendant at her sister’s house (the house of the defendant’s mother), at which time:
“… We had discussed what had happened and talked about the fall and John had told me that he hadn't put the latch or the clasp onto the ladder.”[24]
[24]T382
41 Ms Agalidis said that she saw the defendant again a week later at the birthday party of one of the children of the plaintiff, at which time a discussion occurred in which the defendant was addressing a group of people of whom Ms Agalidis was one, and:
“In that discussion he had also said that he hadn’t put the latch on the ladder … .”[25]
[25]T382
42 The making of each of these admissions is denied by the defendant.
Finding as to –
(i) the discussion between the Plaintiff and the Defendant as to the removal of the dish
((ii)the loading of the ladder at Gerald Court and the assembly of the ladder at the house
43 In considering the dispute which arises between the plaintiff and the defendant as to:
· The nature of the conversation which preceded the loading of the ladder into the plaintiff’s vehicle; and
· Who erected the ladder at the house;
I prefer the evidence of the plaintiff as to each of these issues to that of the defendant for the following reasons:
(i) I find the defendant’s evidence that:
· a heated discussion arose between he and the plaintiff, in which the defendant effectively insisted that he did not wish the plaintiff to remove the satellite dish and notwithstanding the defendant’s protestations which occurred in the context of a heated discussion and continued in the car as the two drove to the house;
· that the plaintiff ignored the defendant’s protestations and would not be deterred from undertaking the work;
to be unlikely. This is particularly so in my opinion given the agreed position between the parties that the plaintiff had not on any previous occasion undertaken any handyman-type work on behalf of the defendant;
(ii) Further, if in fact the defendant was adamant that the plaintiff should not remove the dish, there seems to me to be no persuasive reason why the defendant could not simply have:
· told the plaintiff that it was not convenient for the defendant to carry out more work at the house or, alternatively
· placed an embargo upon the plaintiff carrying out the work and refused to accompany the plaintiff to the house.
(iii) It is the defendant’s position that it was the plaintiff who went to the defendant’s garage, removed the defendant’s ladder and placed it into his vehicle. The plaintiff’s position on this issue is the opposite of that of the defendant.
The evidence given by the defendant that the plaintiff had been shown the defendant’s garage in the course of the tour undertaken by the defendant of his property smacks, in my opinion, of evidence which was recently invented by the defendant, having regard to the fact that it was not put either to the plaintiff or to his wife in the course of their cross-examination.
(iv) Further, I find the assertion by the defendant that upon arriving at the house,
· he washed his hands completely of any activity to be undertaken by the plaintiff in removing the satellite dish and made absolutely no attempt to assist the plaintiff in any way; and
· he had absolutely no knowledge of anything the plaintiff did from the time they arrived at the house
to be most unlikely and to be unconvincing given that the plaintiff was to erect and use the defendant’s ladder, the method of erection of which the defendant was well familiar with.
(iv) Katina Agalidis and Despina Teodoridou struck me as being witnesses of truth when they gave evidence as to the admission made by the defendant as to his failure to securely latch the ladder, as did Olibio Agalidis.
(v) Finally, in my opinion the defendant adopted a position when giving evidence of making gratuitous statements, the purpose of which was to undermine the plaintiff’s position rather than giving an accurate account of the evidence to the best of his ability and recollection. Instances of the defendant’s evidence which lead me to making this statement include the following:
· The defendant’s criticism of the plaintiff for failing to ring him before visiting Gerald Court;[26]
[26]T439, L8-27
· The statement made by the defendant[27] to the effect that Obilia Agilidis had absolved the defendant of responsibility for the accident, commenting “John, don’t worry about it because Tom takes unnecessary risks at times”; which was volunteered by the defendant in non-responsive answer to the question which evoked it and was:
[27]T520, L3
§ a position which was never put to Obilia Agilidis; and
§ the antithesis of the evidence given by Obilia Agilidis as to the conversation which occurred between she and the defendant at the house following the accident;
· The defendant’s statement that whilst the plaintiff was in hospital he did not speak to the plaintiff but –
“I called him, through my mother, of course, because I didn’t want to speak to anybody. … Because I was very distressed, Your Honour, because what happened, everybody went against me, everybody thought it was my fault, which is – it’s not true, it’s not my fault, Your Honour. The plaintiff assured me when he fell and all this happened, nothing’s going to happen, and then a year later I got he mail from his lawyers and I got served as well. So what would I want to speak to the plaintiff for, Your Honour”[28]
[28]T529
44 For these reasons I prefer the plaintiff’s evidence on each of the issues as to the fact that:
(i) The defendant acquiesced to the plaintiff’s suggestion that he could remove and relocate the satellite dish for the defendant and thus save him the money associated with its relocation;
(ii) It was the defendant who retrieved the ladder from the defendant’s garage in Gerald Court and placed it in the plaintiff’s vehicle;
(iii) It was the defendant who assembled the ladder at the house and positioned it for the plaintiff’s use, and that in doing so, it was the defendant who was responsible for the fact that when the ladder was erected, only one of the two latches which were required to be secured when the ladder was to be used in its extended and straight position were secured appropriately
The evidence as to the circumstances in which the Plaintiff suffered his injury
45 The plaintiff gave evidence that in positioning the ladder, the defendant did so such that:
· It was sited on relatively flat and even, dry concrete;
· The feet of the ladder were securely positioned on the ground;
· The ladder was securely positioned leaning against the garage;
· The ladder was set at a correct angle and was not leaning to one side or the other; and
· There was no lack of solidity with the position of the ladder.[29]
[29]T114-116
46 The plaintiff said that at the time he descended the ladder he noticed no lack of solidity with the positioning of the ladder as he climbed it, but that he did not check whether the clips were affixed to the ladder.
47 There is no issue that the roof of the house is a sloping tiled roof and that the garage which abuts the house is fitted with a flat skillion-type roof. It was the plaintiff’s position that the satellite dish was affixed to the facia of the house at the premises.
48 It was the plaintiff’s evidence that the satellite dish was affixed to the facia of the house within half a metre or so of the front edge of the garage roof, against which the ladder which had been erected for his use by the defendant, was leaning.
49 The plaintiff said :
(i) that the j-bracket which supported the satellite dish was fixed to the facia by two coach bolts; that he could access those coach bolts either by standing on the roof of the garage or working from the ladder, but that he chose to work from the ladder;
(ii) that he took up a position on the ladder either upon the step which would form the top of the ladder if it was assembled in an A-frame position or the rung immediately above that (the ladder being assembled as a straight ladder). He said that from that position he unscrewed the coach bolt located closest to him and then commenced to unscrew the remaining coach bolt;
(iii) that at this time, the defendant, who had been assigned by the plaintiff the task of removing the facia plate to which the coaxial cable of the satellite dish was attached inside the house, came outside and advised him that he had been unable to undertake that task. The plaintiff gave the following evidence as the events which then followed;
“I told him just to wait and I’ll do it when I come down.
…
I had taken off the first bolt. Johnny was behind me to the right talking to me, we were having a conversation, and I just started working on the second bolt and then the ladder just collapsed from under me.
…
It just – it’s like the ground fell out from under me. It just collapsed. There was nothing. It was like all of a sudden. …
I went straight down without any warning at all. Because of the way I was working, Your Honour, laying against the gutter, as I came down my arms rubbed against the edge of the garage. I just managed to grab a little bit of the garage edge in the split second that I was falling, because I was laying a little bit to the left, Your Honour, I grabbed that and made me pull a little bit to the left, and the ladder went away to the right, down to the right, and I landed on the ground on my feet, Your Honour, very heavily.”[30]
[30]T53-54
50 In cross-examination, the plaintiff was asked:
Q:“… the ladder gave way. It just disappeared from underneath me, Your Honour.
…
Q:Are you saying by that description that the ladder did not slip along the facia of the garage to your right, for example, or to your left? Did not go either side of you, simply went straight down underneath you?‑‑‑
A:Yes.
Q:Right. It is not then, as far as you were able to observe, a matter of a lack of attachment of the top of the ladder to the garage? That was not, as far as you were able to see, anything to do with the accident?‑‑‑
A:No.
…
Q:… You are not saying, are you, that this accident occurred when the feet of the ladder, for some unknown reason, suddenly slipped out and the ladder slid down the front of the garage?‑‑‑
A:Again, Your Honour, it just disappeared from under me. Again, that’s all I could describe it as. Just suddenly it was just falling.”[31]
[31]T127-128
51 It is the defendant’s position that at the time at which the plaintiff fell from the ladder, the defendant was not present and, accordingly, was not a witness to the event.
52 Whilst the plaintiff asserts that the defendant was in fact present and witnessed his fall, the only evidence as to the circumstances in which the plaintiff came to be injured on the day in question comes from the plaintiff.
Is the Court ladder the ladder which the Plaintiff used to access the satellite dish?
53 Exhibit 4 comprises a Bailey’s ladder which, throughout the course of the proceeding was described for convenience as being the Court ladder.
54 It is the defendant’s position that the Court ladder is the ladder which had been erected at the house to allow the plaintiff access to the satellite dish.
55 It is the plaintiff’s position that the Court ladder could not be the ladder which he was using at the time at which he suffered his injury. The assertion of the plaintiff in this regard is based upon his evidence that when he saw the ladder immediately after he had suffered his injury, the upper part of the ladder was bent and twisted in a manner which might be described as follows: if the ladder is erected in its extended position the bottom edges of the ladder are located at an angle of approximately 180 degrees, such that the upper section of the ladder adopts a position which is effectively an extension of the lower section of the ladder. In that position the angle between the point where the upper and lower sections of the ladder meet is 180 degrees. Following his fall, the plaintiff described this angle as being greater that 180 degrees:
“It buckled greater than 180 degrees”[32]
[32]T110
56 It Is clear that in employing this description, the plaintiff was describing the ladder as being bent and twisted, such that Section B (the upper section of the ladder) had effectively been hyper-extended, the plaintiff explaining:
“… imagine that there was a big hole there around the ladder, as if somebody jumped right in the middle of it [the ladder] and pushed it down and made it bend into itself … .”[33]
[33]T58
57 It was the evidence of both the plaintiff and his wife that the ladder appeared to be distorted in this manner after the accident. It was for this reason that both the plaintiff and his wife gave evidence that the Court ladder could not be the ladder involved in the accident.
58 The defendant asserts that the Court ladder is the actual ladder which the plaintiff was using at the time at which he was injured. The defendant’s position that the Court ladder is the actual ladder which the plaintiff was using as at the date of his injury is supported by the evidence of Aspaso Topouzoglou.
59 In the course of cross-examination, the plaintiff made it clear that there was no contact between his body and the ladder as he fell, which could have resulted in the ladder becoming twisted and misshapen immediately following the plaintiff’s fall.
60 Further, in my opinion, there is no aspect of the plaintiff’s description as to the mechanism of his injury, be it his movement or that of the ladder, which affords any insight or explanation as to the reason for which the upper section of the ladder could have become misshapen or damaged in the course of the process which involved the plaintiff’s fall, which commenced with the plaintiff standing at or slightly above the midpoint of the extended ladder in a position in which he felt no concern as to:
· his security; or
· the stability of the ladder as a working platform
at any time before the ladder suddenly collapsed.
61 The Court ladder, which the parties agree is either the ladder which the plaintiff was using at the date of his injury or a ladder of identical type to the one which the plaintiff was using at the date of his injury, is a ladder which appears to be of a physically robust construction.
62 The upper section of the ladder in its extended position consists of five steps which are securely inserted within the ladder such that they would appear to provide the ladder with considerable structural integrity.
63 No expert evidence was adduced by the parties as to the force required to cause the ladder to become deformed in the manner described by the plaintiff and his wife or mechanism by which such a result could eventuate. Neither is there any evidence as to the whether the ladder is, in fact, as robust as its appearance suggests. These issues must fall into the realm of impression formed by me as to the strength of the ladder upon which I place no reliance.
64 In the absence however of any explanation as to how the ladder could become deformed in the manner described by both the plaintiff and his wife, I am not satisfied on the balance of probabilities that the plaintiff has established his position that the ladder did deform in the manner described by he and his wife, or that the Court ladder is not the actual ladder which he was using as at the time of his injury and that the defendant has failed to produce the subject ladder to the Court.
The position of the satellite dish
65 The defendant takes issue with the plaintiff’s description as to the position of the satellite dish.
66 Aspaso Topouzoglou gave evidence upon this issue. She said that she was well familiar with the position of the satellite dish, having positioned herself on numerous occasions on the roof of the garage in order to clean the gutters of the house at the house.[34] She said that the satellite dish was located towards the rear of the roof of the garage, well away from the front of the garage, and in a position which was impossible to reach from a ladder which had been erected such that it was being supported against the front edge of the garage roof.
[34]T591
67 Ms Topouzoglou:
(i) Gave evidence as to her presence on the garage roof when a number of photographs were taken which identified the location of the satellite dish. She described the presence of two holes in the fascia of the house at the house and two holes located in the fascia which confirmed her recollection as to the position in which the satellite dish was erected prior to the happening of the accident.[35]
(ii) Said that access to the area depicted in the photographs was gained by lifting the front edge of the roof tiles of the house which were supported upon the fascia and that the satellite dish was mounted on the fascia below the roof tiles but above the highest point of the side of the guttering which was also affixed to the fascia.
[35]See defendant’s Exhibit 3, Photograph 33
68 It was the plaintiff’s position that not only was the satellite dish attached to the fascia of the house a short distance from the front edge of the roof of the garage, but that it was affixed in this position by a j-bracket which had been secured to that part of the fascia which was immediately below the gutter.
69 Ms Topouzoglou said that after the accident, she had examined the fascia in the area in which the plaintiff had described the satellite disc as being fixed and that there were no fixing holes located in that area or in the immediate vicinity of the area.
70 Alajandra Acola, the resident of a property located adjacent to the house, gave evidence on behalf of the defendant as to the position of the satellite dish.
71 Ms Acola said that the rear of her property shared a common fence with the side of the house; that she had lived at that address since 2001; that from the back of her house she had been able to see the satellite dish which had been affixed to the defendant’s fascia and that the dish was affixed in the vicinity of the area described by Ms Topouzoglou.
72 Whilst on a strict analysis of the evidence given by Ms Acola there might be some discrepancy between the position in which she asserted the satellite dish was located and the position described by Ms Topouzoglou, it is clear that each of these witnesses describe the satellite dish as being located in a position such that it would have been impossible for the plaintiff to access the coach bolts supporting the satellite dish if he was standing on a ladder erected in the position described by him in his evidence. Rather, to access the coach bolts, it is clear that the plaintiff would have been required to climb onto the roof of the garage and then walk some distance along the roof in a direction away from the position of the ladder and towards the back of the garage.
73 Ms Acola was cross-examined at some length as to the location of the satellite dish but maintained her position that the dish was located well towards the rear of the property when compared with the location of the dish as described by the plaintiff in his evidence.
74 I found Ms Acola to be an impressive witness; there was no suggestion that she was doing anything other than giving a true account of her recollection as to the position of the satellite dish or that her relationship with the defendant was such that her reliability as a witness of truth should be questioned.
75 Whilst it might be argued that the relationship between Ms Topouzoglou and her husband was such that she would be inclined to be supportive of the defendant and for that reason, her evidence as to the position of the satellite dish should be closely scrutinised,[36] I find the similarity in the description by Ms Acola and Ms Topouzoglou as to the position of the satellite dish to be compelling when considered in the context of the photographic evidence contained in the defendant’s Exhibit 3, and I can not be satisfied, given:
[36]I make no finding to this effect however
· the conflict which exists between the evidence of these two witnesses as to the position of the satellite dish; and
· the evidence given by the plaintiff as to the location of the satellite dish;
that the plaintiff has made good his onus of establishing that the satellite dish was located in the position contended for by him.
76 It follows that:
(i) I am not satisfied that the location of the satellite dish was such that the plaintiff could undertake the work which he was performing at the time at which he was injured from a position in which he was standing on and being supported by the ladder whilst unscrewing the coach bolts which affixed the satellite dish to the fascia of the house; and
(ii) I am satisfied that the latter activity could only have been undertaken by the plaintiff adopting a position in which he gained access to the coach bolts by climbing onto the roof of the garage of the property and walking some distance towards the rear of the garage of the property
The duty of care owed by the Defendant to the Plaintiff
Analysis as to the defendant’s duty of care duty of care
(i) The duty of the Defendant to secure both of the Y Clips when erecting the ladder
77 In assessing whether, when erecting the ladder in its upright position the defendant had a duty to secure both Y Clips, I am satisfied given:
· the design of the ladder, in that it was fitted with two clips which were to be secured when the ladder was being used as an open ladder;
· the risk that the plaintiff might suffer a serious injury were he to fall from the ladder;
· the fact that the defendant was aware that the plaintiff would be required to climb from the ladder to the roof of the garage to gain access to the satellite dish and at some stage step from the roof of the garage back onto the ladder in order to descend from the roof (the latter activity potentially being complicated by the plaintiff’s requirement to bring down from the roof of the garage the satellite dish once it had detached from the fascia);
· the fact that the securing of each of the Y Clips was a simple task which could be undertaken in a matter of seconds;
· the fact that the ladder was owned by the defendant, that its design and intended method of assembly when used as a straight ladder was well known to the defendant;
· the fact that the defendant had no knowledge as to whether the plaintiff was familiar with the ladder or the way it should be assembled when it was being employed as a straight ladder;
that the risk that the plaintiff may suffer injury if the ladder was not safely configured as recommended in its straight position by the securing of both Y Clips was one which:
(i) was foreseeable;
(ii) was not insignificant, in that it was not far fetched or fanciful;
and that the ease associated with the securing of both of the Y Clips gave rise to circumstances in which a reasonable person would have taken the precaution of securing both of the Y Clips when erecting the ladder in its straight ladder position.
78 In the circumstances, I am satisfied that the evidence establishes that in erecting the ladder, the defendant owed to the plaintiff a duty to assemble the ladder such that both of the Y Clips were securely fixed and that the defendant failed to do so.[37]
[37]I undertake this analysis taking into account each of the matters listed in s14B(4) of the Wrongs Act and applying due weight to each of the factors insofar as they have relevance to the circumstances of the present case.
79 I am not satisfied however, even accepting the plaintiff’s position at its highest as to the circumstances in which the ladder was erected in this instance and the evidence as to how it collapsed, that there is any evidence which establishes to the requisite degree of certainty that affixing both rather than only one of the Y Clips, created a more stable platform from which the plaintiff could gain access and egress from the area from which he was required to work. [38]
(ii) The duty of the Defendant to foot or hold the ladder whilst it was being used by the Plaintiff
[38]See my analysis commencing at paragraph 95 of these reasons.
80 In undertaking the analysis above, I do so on the basis of my finding that the defendant was aware that he had secured only one of the Y Clips when erecting the ladder.
81 The ladder, when configured in its extended position, has a total length of approximately 3.3 metres when erected vertically.
82 No evidence was led as to the height of the roof of the garage against which the ladder was leaning at the time at which the ladder was erected by the defendant nor was any evidence led as to the precise angle at which the ladder was positioned away from the perpendicular.
83 The plaintiff gave evidence that he was standing on a rung of the ladder located approximately 1.8 metres above ground level or the rung located immediately above this rung. In this position, the plaintiff described the roof of the garage being located between his beltline and nipple line and the highest point of Section B of the ladder being located in the vicinity of his eyes.
84 Having regard to the uncertainty by the plaintiff as to the rung of the ladder upon which he was standing at the time at which he was injured, I am satisfied that I should assess the existence of any obligation upon the defendant to hold or foot the ladder whilst the plaintiff was using it on the basis that the plaintiff has established, on the balance of probabilities, that he was standing on the ladder at a height in the vicinity of 1.8 metres.
85 There is no evidence to support the position that the plaintiff considered either:
(i) the way in which the ladder was positioned; or
(ii) the height at which he was working upon the ladder;
to be such that it required the defendant to secure or foot the ladder.
86 Further, having regard to the fact that the plaintiff had assigned the defendant a job to undertake inside the house whilst the plaintiff was using the ladder to gain access to the satellite dish, it is clear that the plaintiff accepted that the defendant would not be present to foot the ladder whilst the plaintiff was using it and that he did not consider this position as being unsafe or inappropriate.
87 The plaintiff’s description of a ladder:
· Sitting with its feet squarely positioned on concrete;
· Located at a safe angle from the perpendicular;
· Supported against a solid structure in the form of the roof of the garage;
· Located such that a considerable length of Section B extended above the roofline of the garage against which it rested;
· Erected such that the plaintiff did not notice any “lack of solidity with the positioning of the ladder”[39] as he climbed it, such that –
[39]T116
Q:“It was all as it should have been, correct?
A:Yes”[40]
In my opinion, provides no support for the assertion that a reasonable person in the defendant’s position would have taken the view that the ladder should be footed or held.
[40]T116
88 I am satisfied that the burden placed upon the defendant at that time to either foot the ladder or hold it, is appropriately described as being minimal.
89 Equally however, I am satisfied that the level of appreciable risk occasioned to the plaintiff in using a ladder erected in the manner established by the evidence is appropriately described as being low given:
· the plaintiff’s description as to the manner in which the ladder had been erected; and
· the fact that the plaintiff was comfortable to employ the ladder without the defendant footing it.
90 I am satisfied that the ability of both the plaintiff and the defendant to appreciate any danger associated with the defendant failing to secure or hold the ladder is weighted against the defendant who erected that ladder without securing both Y Clips but that the absence of the fixing of the second securing clip was readily detectable by the plaintiff.
91 As I have previously commented, I am not satisfied that there is any evidence which establishes to the requisite degree of certainty that affixing both rather than only one of the Y Clips was implicated in the collapse of the ladder.
92 Whilst the potential gravity of the injury which might have been occasioned to the plaintiff if he fell whilst using the ladder was considerable, I am satisfied that it is appropriate to grade the likelihood of probable injury associated with the ladder providing unstable access to the roof which as being low given the way the ladder had been assembled such that the juxtaposition of the overlapping lengths of Section A and Section B, together with the angle at which the ladder was located against the roof of the garage;
(i) prevented the ladder from opening any further in an outward direction and
(ii) most probably made it unlikely that the ladder would move to close in an inward direction when the position of the ladder is considered in context of the fact that one of the Y clips had been secured
93 Whilst I am satisfied that it was foreseeable that the defendant’s failure to hold and foot the ladder might expose the plaintiff to a risk of injury by the ladder moving in such a way as the plaintiff climbed onto or from the ladder which would have been avoided had the ladder been footed and held and that such a risk was neither far fetched nor fanciful, I am not satisfied for the reasons previously mentioned, that a reasonable person in the defendant’s position would have taken the precaution of footing the ladder given the findings I have made.
94 I make this finding taking into account the fact that ladders of this type are used every day by householders configured in a straight position and that it could not, in my opinion, be said that it was usual or expected that ladders used in these circumstances are either footed or held.
Approach as to Analysis as to Causation
Section 51 of the Wrongs Act 1958 provides as follows:
“General principles
51. General principles
(1) A determination that negligence caused particular harm comprises the following elements-
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the negligent person had not been negligent, the matter is to be determined subjectively in the light of all relevant circumstances.
(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
95 It is clear that:
(i) the issue of factual causation is to be determined by the application of the “but for” test;[41] and
(ii) in considering the issue of causation, the fact that the damage sustained by the plaintiff was eminently foreseeable in that it was the “very kind of thing” which the relevant duty required the defendant to take reasonable steps to prevent, whilst relevant to “scope of liability” issues, does not provide an answer to factual causation.[42]
[41]Adeels Palace v Moubarak (2009) 239 CLR 420
[42]Adeels Palace v Moubarak at [51]
96 It is also clear that in meeting its obligation to establish factual causation, the plaintiff must do more to identify a change in circumstances which would have occurred had the defendant not breached its duty of care and which might have prevented the occurrence of the event which gave rise to the plaintiffs’ loss, but that it is incumbent upon the plaintiffs to prove with the requisite degree of certainty that this change in circumstance would have prevented the loss.[43]
[43]Adeels Palace v Moubarak at [51]
97 I approach my analysis as to causation on the basis of the principles which I have set out above.
The effect of the Defendant’s failure to secure both Y Clips when erecting the ladder in its open position
98 No expert evidence was adduced by either of the parties as to the operation of the Y Clips or the effectiveness of those clips in maintaining the position adopted by Section B of the ladder, vis-à-vis, Section A of the ladder, when the ladder was configured as a straight ladder.
99 In the course of cross-examination, the plaintiff accepted that when the ladder was configured as a straight ladder, Section B could only “swivel out to an angle of 180 degrees”, vis-à-vis, Part A, and not passed that point[44] and that this situation arose by reason of the overlap between Section A of the ladder and Section B of the ladder which arose when the ladder was configured in its extended position, having regard to the junction point at which Section B of the ladder swivelled with respect to Section A of the ladder.
[44]T109-110
100 It was put to the plaintiff:
Q:“What are the clips going to do to stop the accident occurring as you have described it? How are the clips going to stop the top part of the ladder in its extended form bending backwards as you have described it, that is, past 180 degrees?---
A:I can’t answer that Your Honour, I’m not an engineer on the ladder.”[45]
[45]T118
…
Q:“Because on your version of events, the clips are completely irrelevant, are they not? Whether they are done up or not done up makes no difference to whether you fall off.
A:No, Your Honour.
Q:What difference do they make?---
A:I don’t know Your Honour, I’m not an engineer with ladders.
Q:All right, so you do not know. I am not talking about engineering. You do not know what difference the clips make, is that what you are saying?---
A:I’m saying I don’t know how the ladder collapsed, that’s what I’m saying.
Q:Right. But you say it collapsed. Not that it unfolded or it slid off the roof or somehow something happened in a fashion that caused the ladder to topple over, but it literally collapsed underneath you, is that what you are saying?---
A:Yes.
Q:Without any warning whatsoever?----
A:Yes.
Q:It was a failure in the ladder that caused you to fall?---
A:I don’t know that, Your Honour.”[46]
[46]T125
101 In the absence of any expert evidence and merely from my observation of the configuration of the ladder, I do not see how, when the ladder is configured in its extended position, the juxtaposition of Section A with Section B would allow the ladder to hyper-extend. Neither am I satisfied that the operation of Y Clips would operate in any way relevant to the prevention of that process. It is readily apparent to me that the fixing of Y Clips would prevent the ladder, when configured in its extended position, from moving so that Section B moved from its extended position towards the position it would occupy when the ladder was assembled as a stepladder. It seems to me however that any movement of Section B in the opposite direction to this, when the ladder is configured as an open ladder, would not necessarily be assisted by the engagement of Y Clips, but rather would be prevented by the overlap between Sections A and B which is created by reason of the location of the point at which Section B pivots with respect to Section A.
102 For these reasons, I am not satisfied that the plaintiff has established that the defendant’s failure to secure more than one of the Y Clips at the time at which the ladder was erected was a cause of the injury suffered by him, in that the plaintiff has failed to establish that the injury would not have occurred but for the defendant’s alleged failure.
103 I make this finding, notwithstanding the description of the ladder as being fitted with heavy duty locking hooks in the product literature associated with the ladder, which is Exhibit L, and the concessions made by the defendant in the course of cross-examination that the purpose of the Y Clips was to stabilise and secure the ladder when configured as a straight ladder as I consider those concessions being largely made on a theoretical basis rather than in circumstances in which they were opposite to the position which pertained in the circumstances in which the ladder was being used at the time of the plaintiff’s injury.
Has the Plaintiff established that the Defendant’s negligence was a cause of the plaintiff suffering injury?
104 The starting point of this process involves my finding as to the location of the satellite dish, namely, that it was not in a position such that it could be accessed by the plaintiff whilst working from the ladder positioned against and supported by the front edge of the garage roof.
105 It follows that I am not satisfied that the plaintiff could have, at the time at which he suffered his injury, been engaged in a process in which he was standing on the ladder unscrewing a coach bolt which secured the satellite dish to the fascia to which it was attached
106 I am satisfied that:
(i) The plaintiff was injured on 14 August 2010 when he fell from a height to the concrete driveway in front of the garage of the house and in that fall, the plaintiff sustained the injuries the subject of this proceeding;
(ii) That following the plaintiff’s fall, the ladder, which had been positioned by the defendant in the manner which I have previously described, was lying on the footpath in front of the garage and that it is probable that it was dislodged from the position which it had previously occupied in the course of the plaintiff’s fall.
107 Whether, however, the plaintiff’s fall occurred whilst the plaintiff was:
(i) Standing on the ladder;
(ii) Stepping from the ladder onto the roof of the garage;
(iii) Stepping from the roof of the garage onto the ladder;
and
· What caused the plaintiff to fall;
· What caused the ladder to collapse;
· Whether any lack of stability in the way the ladder was erected is implicated in the cause of the plaintiff’s fall;
· Whether not the plaintiff’s fall and subsequent injury would not have occurred but for the failure by the defendant to fix both of the Y securing Clips; or
· Whether any failure by the defendant to foot and hold the ladder was implicated in the cause of the plaintiff’s fall or would have prevented the plaintiff’s fall (assuming I were to be satisfied that such an obligation was imposed upon the defendant by reason of the provisions of the Wrongs Act, which I am not);
all remain matters of mere speculation in my opinion.
108 In the circumstances, I am not satisfied that the plaintiff has made good his obligation to satisfy me, on the balance of probabilities that, but for the breach by the defendant of any statutory duty imposed upon him by reason of the provisions of the Wrongs Act 1958, the plaintiff’s injuries the subject of this application would have been avoided.
109 For these reasons I am not satisfied that the plaintiff has established that any breach by the defendant of the duty of care owed by him to the plaintiff in this instance was a cause of the injuries suffered by the plaintiff the subject of the present claim.
110 I will hear the parties as to the order which should be made in this proceeding.
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