Connolly v Tweed Shire Council

[2022] NSWDC 29

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Connolly v Tweed Shire Council [2022] NSWDC 29
Hearing dates:	14 & 15 February 2022
Date of orders:	23 February 2022
Decision date:	23 February 2022
Jurisdiction:	Civil
Before:	Priestley SC, DCJ
Decision:	See [87-88]
Catchwords:	NEGLIGENCE — Breach — Duty of care
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Plaintiff (Ronald Connolly) Defendant (Tweed Shire Council)
Representation:	Plaintiff self represented. Hanna Counsel for the Defendant
File Number(s):	2019/00338994
Publication restriction:	Unrestricted

Judgment

1. Ronald Connolly, the plaintiff, seeks damages from the defendant, Tweed Shire Council, on the basis that the defendant breached a duty of care owed to the plaintiff. The statement of claim pleads that duty of care arises from the defendant having the exclusive care and control of a jetty (also referred to at the hearing as a wharf, and the term “wharf” is adopted in these reasons) located at Tweed heads. The statement of claim at paragraph 9 sets out the particulars of negligence. There are nine particulars. In essence, the allegation is that the defendant failed to adequately repair or maintain the wharf including by failing to ensure a gangway was adequately secured to the wharf.

2. The Council denies the allegation of negligence. It is admitted that the defendant owned the wharf including a floating pontoon and gangway/walkway (also referred to at the hearing as a catwalk) and which prior to the incident the subject of the plaintiff’s claim, connected the wharf to the pontoon.

3. The statement of claim was settled by counsel though at the trial the plaintiff was self represented. The Court gave leave for Mrs Noelene Connolly, the wife of the plaintiff, to assist Mr Connolly in the conduct of his own case. This included Mrs Connolly leading the evidence in chief from Mr Connolly. Mr Connolly was the only witness in his case.

4. In exchanges between Mrs Connolly and the court prior to the evidence commencing reference was made to photographs which became marked as MFI’s 1 through to 12. In evidence only two of those photographs were tendered. In addition, there were a number of receipts said to be evidence of out-of-pocket expenses which became exhibits.

The plaintiff's evidence

5. Before setting out the plaintiff’s evidence it assists by reference to exhibits A and B, two photographs, to set out the physical surroundings of the area the subject of the dispute.

6. Exhibit A is a photograph showing what appears to be what was referred to in evidence as a catwalk with one end submerged in the water and the other resting on what appears to be a pontoon. At the end of the catwalk (catwalk is the term adopted by the plaintiff) resting on the pontoon is what appears to be a plate which the evidence suggests is consistent with its appearance might normally rest on the end of the pontoon and be able to move up and down with the tide. The end of the catwalk that is submerged appears to be heading in the direction of what appears to be a wharf. The evidence of the plaintiff was that end was attached to the wharf and that in the way in which he described it set out below it came away from the wharf when he was standing on the catwalk leading to him falling into the water and allegedly suffering the injuries he is claiming damages for. Based on exhibit A it is difficult to make out the manner in which the catwalk was attached to the wharf. It is not clear whether it was somehow hooked onto the wharf or permanently affixed by means of screws or otherwise. There does not appear to be visible from exhibit A any point across the wharf showing signs of any breakage at the area it might be expected the catwalk would attach to it. There is in the photograph, which was allegedly taken the day after the incident the subject of the claim, a red and yellow cloth suggesting that is the entry to walk down the catwalk. That area does not appear to be damaged though there are two marks on the right-hand side of that space at ground level which might represent something that cannot be determined merely from the photograph.

7. Exhibit B is a Google Earth map which was objected to but which was allowed into evidence to assist in giving some greater clarity to what the plaintiff was saying. The plaintiff in his evidence was referring to a big pontoon and a little pontoon which was confusing because only one pontoon can be seen in exhibit A. By reference to exhibit B the wharf can be seen and the pontoon the Plaintiff referred to was identified by the plaintiff by a black mark. Exhibit B also shows on the other side of the wharf a larger pontoon. The gist of the plaintiff’s evidence was that he intended to go down onto the smaller pontoon immediately prior to the accident but because other people were in his way he turned and then went to go down to the bigger pontoon. According to the plaintiff it was when he was in the process of turning away from the top of the catwalk leading to the small pontoon so as to go to the big pontoon that as he described it “the jetty just went down”.

8. Having described that, the plaintiff then described how somebody had measured that it was 33 feet from the top to the bottom. It is not clear what that is a reference to and to my observation exhibit A clearly shows that to be wrong though it may be that at the time of the incident the tide was lower but the measurement of 33 feet still seems difficult to correlate to exhibit A.

9. The plaintiff went on to say he got pinned and kept rocking to get his foot out and that he was out of oxygen and he did not think he would make it. The plaintiff said that his foot got trapped and he gave evidence of seeing bicycles and other items, I infer under the water. He says the experience has given him nightmares which he still suffers today.

10. In further evidence he said that the night before the incident he had walked to that same wharf and this big plate sat up and he said to his wife who he was with that someone is going to get hurt here. It is not clear but it may be that his evidence amounts to saying that on the night before he walked around this plate.

11. On the day of the incident he had been wanting to take his two sons fishing but tired of waiting for them to get ready and walked onto the pontoon; that must be wrong [1] (or is at least inconsistent with his other evidence) for on his evidence he did not reach the pontoon and he then said he walked down the wharf thing with his rods and his gear and the next minute the whole thing went sideways and it went fairly deep 30 odd feet. He said he got pinned at the bottom and had nightmares about it. He said he got trapped down there. He said he got 1 foot out okay but the other foot was trapped and he was rocking till he got up. He went on to say that “you could see it was rotten”. He said it was the posts in the water; rotten on one side and that he got out of the water eventually onto one of them.

12. Pausing there the evidence of the plaintiff did not identify what it was said to be observably rotten [2]. By reference to exhibit A there does appear to be some discolouration of the underneath beam of the wharf but it is not clear whether that is simply the appearance of the timber or whether it is rot. It also does not appear that particular beam had any connection with the catwalk. This claim of something being rotten has no connection to the ultimate argument concerning any alleged negligence of the defendant, and has nothing to support it other than the plaintiff’s assertion.

13. The plaintiff mentioned that there were a number of people who were in the vicinity, some on a boat and that the police ended up coming. He said he had a psychiatrist for some years, but it was not clear on the plaintiff’s evidence whether this was both before and after or only after the incident. He said he used to be strong but after this incident frightened him he did not go fishing for some time. He had lost his fishing gear and said that it ruined his holiday.

14. He was asked if he did any inspections before walking onto the catwalk. He said he walked straight onto it and he turned left to go to the wharf with rods in his left hand and turned around onto it and went off sideways. He tried to pull up and then in his words “she really let go”.

15. I find that what was being said by that last piece of evidence is that the plaintiff walked down the wharf, turned left to actually be on the catwalk to go down to the small pontoon, decided because of other people being present to go to the larger pontoon and in the process of turning around from being on the catwalk to the small pontoon to move across the wharf and onto the catwalk leading to the larger pontoon, the catwalk leading to the small pontoon collapsed or came away for some reason from however it was attached to the wharf.

16. There was no issue taken by the defendant that the incident described by the plaintiff occurred at the location pleaded in the statement of claim.

17. After the incident the plaintiff went to hospital and had x-rays. There is a bundle of medical documentation in evidence via the defendant which I will refer to below so far as is necessary. In terms of the plaintiff’s injuries he said his left leg is the main problem and his nightmares. He also complained that his boys had gone against him and they could not understand what was wrong with him. When asked the age of his children he could not say, though he did indicate that one had been working for some years now and the other had just started working suggesting that they are in their late teens and early 20s so that they would have been in an age range of say 12 to 15 at the time.

18. He said he was healthy before the accident. In terms of ongoing disabilities he again said he cannot talk to his boys and they think he is a bit of a freak and referred to his nightmares.

19. The plaintiff made complaints about his treatment at the hospital following the incident, referring initially to a “young kid” asking him questions as if that “kid” was the doctor which I initially interpreted to mean that he was referring to the doctor as being very young and inexperienced and that he thought he was not much of a doctor. Later evidence suggested that he was in fact talking to a 14-year-old boy and had some complaints about that conversation. That evidence caused me to have some concerns as to the reliability of the evidence of the plaintiff. It bordered on irrational. [3] He then said that he was once wealthy and had gone broke because his vehicle had been stolen and because of the incident at the wharf. That also seemed a rather heightened and elaborate statement. [4]

20. Part of the claim is for domestic assistance and when evidence was sought to be led about that it was difficult to extract some meaningful information. He said that Jonathan and Andrew, his sons, had helped him at first and so too did people named Mark and Bernie. He was asked about his foot and he said it had been chopped off and they had to amputate it due to infection from the fish and said the injury occurred when he was jammed at the bottom of the ocean and the deep hole he went down when he was trapped. He said there was infection from barnacles. He did not know the date of amputation of his foot. As noted below this evidence is inaccurate; it was his little toe, not his foot, that was amputated, and for reasons set out below the cause of the amputation related to his diabetes, not the wharf incident. [5]

21. Returning to domestic assistance he said that his wife and the boys helped the first day afterwards which seemed to be a reference to the amputation though it may have been after the incident itself. He said his foot was blood red and he had a high temperature and was in bed all the time. He said he could not walk at the time which again suggests a possible reference to the time of amputation. He said there was not much more he could tell the court and that his mind was going. His ultimate evidence was that presently he gets no help from Bernie, Mark or his boys.

22. Even before considering the cross examination any claim for domestic assistance has difficulties as it cannot be determined that it has been provided for six hours per week for an initial period of six months, (as required by section 15 CLA) and is not presently being provided at all. Just when the assistance stopped is not established by this evidence.

23. In cross examination the plaintiff accepted that he had walked on the same wharf the night before and it did not collapse and that what he noticed about it was the plate at the pontoon end of the catwalk to the small pontoon. No abnormality was noticed elsewhere on the wharf or catwalk. He was asked whether he noticed the plate the next day and answered in an unresponsive way to say that he put his foot on the top plate and went straight down. It was in the course of the cross examination that he said he was going fishing on the big pontoon which was at odds with him walking on the catwalk to the small pontoon which led to him stating he was planning to go to the small pontoon and because of the kids in the way he turned to go to the big pontoon which is when the catwalk to the small pontoon gave way. In relation to the plate that he noticed the night before he said that it had got back to normal the next day suggesting it was no longer defective though nothing turns on this other than it may not have been defective in the first place, but may have been raised somewhat as is the nature of the plate with the rising and falling of the tide.

24. The plaintiff was challenged as to whether he had ever mentioned to the Council what he said was a defective plate the night before the accident and said he did tell the Council on a Monday after the accident.

25. He said he did not know whether an ambulance had shown up and said that his wife took him to the hospital. He agreed that he could walk in the hospital and had a painful left leg and a scratch on the lower left leg. He said he had some x-rays but could not recall whether he was told to take Panadol. He dismissed as rubbish the suggestion that he was told to get a review of the diabetic medication. This was when there was some very strange evidence, similar to that noted above as being in chief, about a young “kid” playing Doctor. The plaintiff volunteered his dissatisfaction with doctors numerous times; either by reference to their age, or to the plaintiff’s difficulties in being able to understand them due to their accents. [6]

26. It was put to him that he had diabetes for a very long time and he said yes. It was put to him that that was since 1996 after a previous motor vehicle accident with which he disagreed. He described the circumstances of that diagnosis of diabetes as occurring when he was picking up his sons and a young kid doctor thought he had diabetes and later this turned out to be really a reference to a young kid. [7]. Like similar evidence referred to above, this is odd evidence.

27. He was asked questions about his treating endocrinologist, a Dr Gowda. To this he said that he had sacked that doctor. He disagreed he had been on disability payments since 1994 saying he had resumed driving trucks in the 2000s.

28. There was some more odd evidence when he was asked about his left hip and leg pain in 2014 which he said he could not discuss as it was being investigated by police. He simply in my view totally closed down about this evidence. There was no evidence of any reason as to why he could not give evidence about this beyond the plaintiff’s say so. [8].

29. He agreed in May 2015 he was the victim of a coward punch to the back of the head. He was asked if he had suffered psychologically since then and said he did not know and that he would have to ask the psychologist. He then agreed to having recurring thoughts about it and it was why he was going fishing, presumably a reference to the date of this incident.

30. It was put to him that his driver’s license had been cancelled for his poorly controlled diabetes to which she replied “so they said” and added that he thought they were clowns. This I took to be a reference to the traffic authorities, though it may also have been a reference to doctors. [9]. Together with the plaintiff’s evidence concerning his dissatisfaction with doctors, the impression he gives is of a man who had difficulty accepting that things may not be as he wants them to be, highlighted best by his disregard, or at least less than reasonable regard, for his history of diabetes.

31. He agreed he had an injured right foot in early 2016. The evidence was varied on this topic but suffice to say he had some fractured bones in his right foot as a result of placing his foot on either dog bones or Bakelite debris. It was put to him that the doctor who ordered x-rays had said he was suffering badly from diabetes and told him as much and he denied that was ever said. [10]. The documentary evidence supports the defendant in this respect and contradicts the plaintiff. At page 76 of the defendant’s tender bundle 3 is the plaintiff’s GP’s notes, recording that on 25 October 2016, so prior to the accident:

“Patient with osteomielitis (sic) of his foot and most likely a diabetic foot - needs orthopaedic care ASAP TBH. Long discussion about this. Pt not willing or accepting the fact that he has diabetic neuropathy and saying its not true”.

32. He agreed that the doctor had told him someone had given him too much insulin. The note just referred to suggests he was in fact making that assertion to the doctor, so another contradiction [11].

33. At page 112 of the defendant’s tender bundle 3 is an imaging report dated 24 October 2016 referring to indicated osteomyelitis, and presumed diabetic neuropathy, and another report at p113 refers to a diagnosis of insulin diabetes in 1994 and to infection extending in his toes. Notably the report at p112 refers to the findings being in the right foot; the later amputation was of his left little toe. The point remains for the defendant that this is evidence of infection in a foot relating to diabetes.

34. Also in the patient notes, at p77, is reference to the cowards punch allegation. That note refers to the plaintiff stating that nobody believed him, that the police declined to reopen the case, and that he had missed out on “victims of crime money”. The defendant did not challenge the plaintiff’s assertion of the cowards punch incident, but this record suggests there are some doubts about it even occurring.

35. The plaintiff said he could not say who was his endocrinologist at the time his left little toe was amputated. He said he could not say whether it was at the end of 2018 that his left foot and toe had got bad. It was put to him that his left little toe was amputated in January 2019 due to diabetes according to Dr Gowda. He agreed with that but then said he did not agree with the doctor, though he disagreed that was why he sacked him. He said he was not a proper doctor and did not listen to his patients and that he gave him the wrong drugs. [12]. This evidence again supports a view of the plaintiff as disregarding views not consistent with his own.

36. He was then asked if he remembered saying in his evidence in chief that he was fit and healthy before the incident. Initially he said no but then said that yes he was fit. The 1994 crush injuries and the 1996 diabetes (the records suggest 1994) were put to him and he said they were not a problem. [13]. This is another illustration of the plaintiff disregarding matters which may well be relevant in assessing his current state of health.

37. Again he was asked about his license and he blamed Dr Gowda and it was put to him that he had already lost his license before he saw the doctor and he had no real answer to that though arguably steps could have been taken by the doctor to regain the license depending on what his opinion was as to his diabetes though that did not come out in evidence.

32. He denied that after July 2015 he was seeing an occupational therapist named Alex Donahue. It was put to him that he told Ms Donahue about the coward punch but never mentioned any problems with the wharf injury to which he said maybe it is none of her business. It was put to him that he did not tell her about the wharf and he said he did and it does not mean she did not write it down. [14]. This evidence suggests that the plaintiff may tailor his history depending on his audience.

33. The lead up to the amputation of the plaintiff’s left little toe was put to him as being that he had an ulcer under that toe and that at some stage possibly had a thumbtack go through his shoe. The ulcer did not improve. Tests showed he suffered cellulitis with which he agreed. For several months at the end of 2018 he took medication and had bandages applied and on his own evidence was bedridden with his wife looking after him. He disagreed that the ulcer under his toe was not detected until the thumbtack injury but did agree to the amputation occurring in January 2019.

34. His GP Dr Botha referred him to pathological services in Toowoomba and the record showed his main complaint was recurring thoughts as to the coward punch with which he agreed.

35. It was put to him that he had also fallen off a roof in August 2019 and in late 2019 had problems with his eyes. He said it was not a tall roof and that he was getting glasses done but not due to diabetes. He again said that he sacked Dr Gowda for not doing it right and saying the doctor was more interested in money. He said he was not going to make up stories just because he was in a courthouse. He went on to say that he believed in justice, supporting police and aged people and told counsel for the defendant that he had not asked the right questions. [14]. This evidence shows the plaintiff being non responsive.

36. It was put to him that he was seeing Dr Gowda for diabetes and he said yes and that he gave him (the doctor) a go. It was then put to him that he said he did not have diabetes and he said he was not saying he did not have it at the beginning, and that once he had medications he had to keep taking them. He went on to say that the Queensland government has changed everything. All diabetic people have gone. He said it was not good enough. He said the Queensland government had taken people away and put foreigners in which I took to mean a reference to the doctors consistent with his other remarks concerning accents. He said with foreigners they cannot understand “us”. He said people have to put up with rubbish. He said he knew what was coming up and that people were mad as in angry and he would back them. [15]. This was another example of the plaintiff being non responsive and raising matters of irrelevance to his case.

37. It was put to him that he was a patient of Dr Botha for a number of years and that she moved to another practice. He said he trusted her and agreed she had sent him to Dr Gowda. He agreed he still took diabetes medication and took out of his top pocket a syringe to demonstrate his medication.

38. He was asked about whether he still had problems with his right foot and said there was some tightness but it was okay. He denied wearing orthotics. He said his eyesight was now good and his wife looked after that and that he has glasses for reading. He said his left shoulder is sore. He said the only regular medication he takes is diabetes and no painkillers. He was asked about taking drugs with mental health and said that only his wife knew that.

39. In re examination he said he could move his right toe and gave evidence that in 2014 his regular doctor was Dr Bardsley. He gave evidence of a motor vehicle accident in 2014 which he said Dr Bardsley said was caused by diabetes. He said that Dr Bardsley helped him through his nightmares.

40. He described the motor vehicle accident which sounds severe with the car rolling and going into a ditch, catching fire and pinning him down. The plaintiff became notably upset at this time.

41. That concluded the plaintiff’s evidence. Apart from the tendering of the photographs which became A and B described above there was no documentary evidence including no medical evidence tendered by the plaintiff in the plaintiff’s case in chief.

42. In relation to the left little toe amputation, the plaintiff attributes the need for this to the wharf incident. The medical records show there was skin necrosis of his left little toe in November 2018; see p36 of tender bundle 3. That note records the plaintiff had a very infected and cellulitic left foot. The note goes on to record the doctor giving an explanation as to how this conditions arises, including the rubbing of the foot on a boot, and referring to diabetic neuropathy. The plaintiff’s response was to attribute it to the crush injury of months ago, which I take to be a reference to the wharf incident. Then at p15 of the defendant’s tender bundle 1, in the psychiatric report of Dr Vickery, reference is made to a letter of referral from Dr Botha dated the same date as the note just referred to, 19 November 2018, where it was said “Thank you for seeing Mr Ronald Connolly with a very infected diabetic ulcer with cellulitis of his left foot now as well”.

Defendant’s evidence

49. The Council called one witness, Matthew Laurence Lee, who is employed by the Council as a project officer-coastal. He holds a bachelor of Ocean engineering from the Australian Maritime College. In 2015 he was tasked with the job of updating the defendant’s register of maritime assets including public jetties and pontoons. His evidence was given by a combination of adopting a statement he had prepared and which was dated 10 March 2020, and which formed part of the defendant’s tender bundle. He said the contents of the statement were true. There was no real challenge to the contents of the statement other than as concerns the connection of the gangway to the wharf. I deal with that below.

50. He described the wharf as having two floating pontoons coming off it, the northern and southern pontoons. This case concerns the northern pontoon which is connected to the wharf by an aluminium gangway. In July 2016 he conducted a detailed inspection of the wharf in question and the pontoons and gangways. The report he prepared of that inspection was annexed to his statement. There was no inspection between that inspection in July and the date of the accident on 30 October 2016.

51. His report dealt specifically with the connection between the wharf and the aluminium gangway to the northern pontoon. The statement describes that the gangway is attached to the wharf with a metal bracket (in fact two metal brackets) which hold two pins to which the gangway is attached allowing the gangway to rotate, or rise and fall, with the tide. These gangway pins are secured in place with a nut and bolt. On page 10 of 57 of tender bundle 1 are two photographs showing these pins in situ in July 2016. By reference to the left-hand photograph at the bottom of that page one of the pins can be seen and there can be seen two dark spots behind the pin and on the right side of the bracket is a bolt with a nut. Dealing first with the two dark images the evidence was that only one of those dark spaces is in fact a bolt being the bottom one. A top dark spot is in fact an empty space, something that can perhaps be better seen by the right-hand photo showing the fitting on the other side (the riverside) of the gangway. That dark bolt in effect behind the pin attaches the bracket to the timber of the wharf as does the bolt that can be seen on top of the bracket on the right-hand side. The nut that is within the bracket on the right hand side of the left hand bottom photo, and just above the pin holds the pin in place and is not weight bearing. Close observation of the left-hand photograph can see a plate protruding on the right-hand side which is what the bolt is affixed to and with the nut being applied on the other side. The pin in fact forms part of this plate, that is, the manufactured fitting of the pin and the plate and the bolt forming one unit. This could be clearly seen from a photo the plaintiff introduced into evidence in the course of cross examination.

52. In Mr Lee’s report, he expressed the view that the connection to the timber wharf was secure but the bolts appeared inappropriate but secure. His oral evidence was that the bolts he was referring as inappropriate were the dark bolts securing the fitting to the wharf and not the bolt securing the pin. He thought it was inappropriate because there was only a single bolt connected to the bracket when there was space for two.

53. In relation to the nut and bolt securing the gangway pins Mr Lee said he did not manually check them to see how tight the securing nut and bolts were. It was his view that there was nothing inappropriate or not secure about them on the basis that the nuts were flush against the metal bracket and he could see sufficient thread on the bolts on the other side of the nuts.

54. Mr Lee attended the scene of the incident on the day after it occurred namely 31 October 2016. He saw the gangway to the northern pontoon disconnected and submerged as can be seen in exhibit A. He said that the pin was missing from the gangway and expressed the opinion that someone had removed the bolt on the right-hand side or land side of the gangway on the basis that both the pin and the bolt was gone. The bolt he is referring to was the bolt that could be seen at page 10 of the bundle just above the pin and within the bracket. Without the bolt the pin is not as secure as it would otherwise be. The evidence was that if the pin then becomes missing the gangway cannot rotate so it would jam and the cyclical action of the tide would eventually force it out of the connection causing it to fall. It was said that this would happen within a day or two of tide cycles. He also said there was no evidence of any sheering of the bolt.

55. The opinion of Mr Lee is that some person removed the nut holding the bolt in place to secure the pin. This resulted in the pin coming out of the bracket. The position would be that there would be a secured bolt and a nut on the other side. The evidence was that with the pin missing the gangway is unable to rotate and would then jam and the cyclical action would eventually force it out of the connection causing it to fail. There was no real challenge to this as being the mechanics of the gangway coming away from the wharf, though it does leave unexplained just why the riverside bracket failed. The inference I draw in these circumstances is that with the pressure caused by the nut being removed from the land side bracket, this in turn caused the riverside pin / bracket to also fail. It was not expressly stated in evidence, but it seems most likely that in order to allow the pin to rotate there is no attachment of it to anything at the other end of the pin, that end other than where the bolt and nut are located, or put another way, on the inner part of the bracket. Thus, if the plate / bolt / pin fitting comes away at the land side of the gangway, the gangway would slip away from the bracket on the river side.

56. When the plaintiff cross-examined Mr Lee photos were produced which became exhibits D1, D2 and D3. Mr Lee when shown the photograph which was D1 accepted that would appear to be the pin that was missing from the land side of the gangway. Thus the plaintiff had a photograph of what the plaintiff maintained and the defendant accepted was the missing pin and it had not been produced by the plaintiff prior to the cross examination. In the opinion of Mr Lee the photograph supported his opinion already expressed, as the entirety of the pin and the bolt was present without the nut and there was no sheering or overload but simply the nut missing. He said there was no obvious damage to the pin which would have caused the failure and that the only missing component is the nut used to retain the pin in location. He said the pin appears to be as it should be, not snapped off, and appears to be the correct width. He said there was nothing wrong but for the absence of the nut. This was precisely the substance of his opinion.

Findings

57. In setting out the evidence of the plaintiff above numerous references have been marked by a number in parentheses. For the reasons there expressed I find there were parts of the plaintiff’s evidence which gave significant reason to examine his evidence carefully before accepting it. The two most significant issues were the plaintiff’s state of health both before and after the wharf incident, and including to what extent his post wharf incident state of health is attributable to the wharf incident. The second is whether the plaintiff has established on the balance of probabilities that the cause of the gangway coming away from the wharf was the negligence of the defendant as alleged. This second issue does not turn on the evidence of the plaintiff.

58. As to the plaintiff’s health, in my view the position indicated by the contemporary medical records is to be preferred over the assertions of the plaintiff. This is particularly in relation to his alleged physical injuries and to the need for the amputation of his left little toe. In my view that amputation was due to his long standing diabetes, which dated from 1994, and not from the wharf incident. Prior to the wharf incident there was a similar difficulty with the right foot; and the contemporaneous records in 2019 clearly show the connection with diabetes, and the resistance of the plaintiff in accepting that view.

59. The plaintiff’s claim extends to suffering stress anxiety and depression, and this is dealt with below in connection with quantum.

60. As to the second issue, I find that the most likely cause of the gangway coming away from the wharf to be the absence of the nut from the bolt attaching the pin to the gangway. I accept the opinion of Mr Lee in this regard, namely that this would result over a period of 1 or 2 tidal cycles, or possibly 3, in the gangway working itself into a position where it may become detached as it did. The one reservation I have in that regard is that Mr Lee in his July inspection report stated that he did not test the tension of the nut holding in the bolt, and stated only that he observed that it abutted the bracket fitting. There is no evidence as to how or why a nut of that type may work itself free over time. I consider it not to be a fanciful suggestion based on common sense. That is if the nut was not properly tightened, and with the rotational movements inherent in the gangway, albeit not directly impacting on the bolt (ie it is not load bearing), there could well be a possibility of the nut working loose. At best for the plaintiff however that is one of the two possibilities, the other being that the nut was deliberately removed by persons unknown. If anything, the evidence favours the defendant theory because the nut was seen to be abutting the bracket, consistent with being tightened, and also because of the lack of any damage that could be seen on the bolt that was recovered, which is said to be consistent with the deliberate removal. There was no express evidence that some greater damage might show on the bolt if the cause was that it worked loose over time, but logically that seems likely. In any event, what is not more likely is the plaintiff case that the bolt came off for some reason other than being deliberately removed. Furthermore, on the basis that the nut was deliberately removed, I find that the removal occurred only in the one or two days preceding the date of the incident, again accepting the opinion of Mr Lee to that effect.

Liability

61. These proceedings are governed by the provisions of the Civil Liability Act (“the CLA”). The plaintiff needs to show that the defendant owed to him a duty to take reasonable care for his safety whilst he was lawfully upon the wharf, the gangway and the pontoon. On the pleadings it is admitted by the defendant that it is the owner of the wharf, gangway and pontoon. The allegation that it had exclusive care and control of the wharf was not admitted. The allegation of the owing of the duty of care is also not admitted. This aspect of the case was not really the subject of any submissions. The only evidence before me is of the defendant, through Mr Lee, of this wharf and pontoon being a maritime asset of the defendant consistent with the admission as to ownership. As to its exclusive control the evidence available is simply that the council attempts to complete a detailed inspection of such assets annually and did so in July 2016. Mr Lee also states that he was not aware of any customer complaints about the asset between July 2016 and 30 October 2016 from which I infer that the Council accepts that if there are to be complaints about the wharf in question the complaint would be made to the Council. There is no evidence suggesting that any other body has any responsibility for the wharf, gangway and pontoon in question. In those circumstances I find that the duty of care is established.

62. The major issue in this case is whether the defendant was in breach of that duty of care and therefore negligent, a question that needs to be considered in the light of requirements of section 5B of the CLAR.

63. The allegations of negligence in this case are as follows:

63.1. A failure to adequately repair or maintain the wharf:

63.2. Failing to ensure the gangway with adequately secured to the wharf:

63.3. Failing to ensure the wharf was safe to use:

63.4. Failing to adequately inspect the wharf for defects:

63.5. Failing to regularly inspect the wharf for defects:

63.6. Failing to notice the plaintiff was in a position of peril when using the wharf:

63.7. Failing to warn the plaintiff of the danger to which she was exposed:

63.8. Allowing members of the public to use the defective wharf:

63.9. Failing to event public access to the wharf.

64. By section 5D of the CLA where there has been shown to be a failure to exercise reasonable care and skill, a determination that that failure caused particular harm comprises two elements. Firstly that the negligence was a necessary condition of the occurrence of the harm (or factual causation), and secondly that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused.

65. Before needing to consider the question of causation there needs to be considered whether negligence or the failure to exercise reasonable care and skill has been established. In light of my finding above, that the more likely cause of the detachment of the gangway from the wharf was the result of the deliberate removal by a person or persons unknown within one or two days of the incident of the nut from the bolt holding the pin in place my view is that none of the particulars of negligence are made out. Dealing with the particulars alleged as set out above seriatem that is because:

65.1. But for one reservation the evidence supports the view that the wharf was properly maintained and repaired. That is because the only failure that occurred was due to the apparent deliberate removal of a nut. The evidence of Mr Lee which I accept was that the nut would not work its way off due to the fact that the bolt was not load-bearing. Thus an allegation of inadequate repair or maintenance depends really in this case on how frequently it is said that there should be inspections. There was no evidence on this point other than the fact of the inspection 3 to 4 months earlier. Crucially the evidence which I accept is that the failure would have occurred within two or three tidal cycles of the removal of the nut so within a day or so of the incident occurring. I accept the submission for the defendant that the likelihood is that an inspection once a month would not pick this up unless of course the inspection happened to fall on the day after the nut was removed. Really what the plaintiff is calling for is daily or each second day inspections of each wharf or other maritime asset of the defendant or even limiting it to simply of this particular asset. I do not consider either of those to be reasonable on the evidence before me which includes that there had not been any complaint about the safety or condition of the wharf between July and 30 October 2016, or indeed at any time prior 30 October 2016.

65.2. This particular is answered by the same considerations just carried out as are the particulars identified at sub paragraphs 63.3, 63.4 and 63.5 above.

65.3. As to the particular set out at subparagraph 63.6 above that would seem to suggest that there is to be somebody watching the wharf the entire time which in my view is plainly unreasonable.

65.4. There was no submission addressing the failure to warn that is alleged (63.7 above) and given it would be unreasonable for the defendant to know of the danger so as to be able to warn the plaintiff I consider this is not made out.

65.5. The same comments apply to the particulars set out at 63.8 and 63.9.

66. The result then is that there has not been established any failure to exercise all due care and skill on the part of the defendant.

67. A consideration of section 5D of the CLA confirms this. That section requires negligence, where established, to have caused the harm alleged. Here, the most probable cause of the collapse of the gangway and the fall of the plaintiff was the removal of the nut from the land side bracket in which rests 1 of the two pins. Once the bolt securing the pin in place had the nut removed the risk which eventuated arose. On my findings that nut was most likely removed within one or two days of the incident by persons unknown and not due to any failure to maintain or repair. There is nothing done by the defendant in the manner alleged by the defendant that was causative of the harm alleged.

Damages

68. By the plaintiff’s claim he seeks damages for his noneconomic loss, out-of-pocket expenses and domestic assistance. There is no claim for any wage or other income loss. The plaintiff offered no evidence in documentary form of any injury or special damages beyond a collection of receipts. The defendant did.

69. Dealing with noneconomic loss section 16 of the CLA applies. As recounted above the plaintiff was taken to a hospital by his wife. In the hospital notes of that attendance which were tendered by the defendant the presenting information is of a painful leg, and noting that he was able to walk. He was not assessed for pain. The only reference in respect of the triage to injury was of his lower limb. In the general notes of the emergency department assessment the chief complaint was of a left foot injury. He was able to weight bear and pain was recorded as 4/10 when sitting and 7-8/10 when walking. His medical history given included depression and taking insulin. The notes record that there was no bruising though variable sensation was recorded. There is also noted pain of the tibia and fibula but no swelling. It is not stated but I infer that is a reference to the left tibia and fibula. It is also noted that the calves were mildly tender to touch. It is not clear whether that is intended to also refer to the right calf.

70. As to the rest of the body the notes indicate small superficial scratches to the back, nil spinal tenderness and a superficial abrasion to the left elbow which had a full range of movement and not requiring washout or dressing. The plaintiff could weight bear and walk without significant limp or discomfort.

71. An x-ray of his tibia/fibula/ankle/foot was taken which on review showed no fracture evident. It was described as a soft tissue injury without fracture and no antibiotics were required. Panadol was prescribed. He was advised to see his GP in relation to the altered sensation of his left foot.

72. Of concern is that in his evidence in chief the plaintiff said that he had no health problems before this incident yet the history to the hospital shows otherwise and in the significant number of documents tendered in the bundle of the defendant which became exhibit D2 it is plain that the plaintiff had a number of considerable issues with his health before this incident. This includes a motor accident in July 2015, a diabetes diagnosis as long ago as 1994, the significance of which the plaintiff is apparently unwilling the wholly accept (see the medical notes referred to above for example). And there was also an occasion in 2015 when he alleges he was the victim of a coward punch, though the documents cast some doubt about this, albeit both parties proceeded on the basis that it happened. The plaintiff conceded to experiencing recurring thoughts about this incident, and the evidence supported, and I find, that he was counselled by Ms Donohue in relation to it.

73. The main thrust of the plaintiff’s evidence in this case was that it was psychological injury that he had suffered due to the wharf incident. Yet apart from his say so this is not supported by any evidence. As noted above, due to my concerns as to the plaintiff’s reliability, such evidence would need close consideration before being accepted, including a consideration of competing evidence of the defendant.

74. On this point the defendant relied upon a report of a psychiatrist Dr Graham Vickery dated 25 May 2020. In that report reference is made to a mental health history (at p3 of the report and p15 of defendant’s tender bundle1) commencing with a motor vehicle accident in 2011 which resulted in increased irritability and mood dysregulation. It is also noted that after the coward punch the plaintiff became progressively unwell and tried to kill himself twice. Following the coward punch he was treated for depression and suicidal ideation.

75. In the opinion section of his report Dr Vickery states that there are sporadic nightmares of the accident but no recognised psychological injury or psychiatric injury. It notes that he was referred to a psychologist in 2019 due to traumatic experiences in the past particularly with regards to a coward punch of 2015. The referral did not specifically refer to the wharf incident.

76. The report refers to the assessment of an occupational therapist Alex Donahue which notes as a medical history complex issues relating to 5 motor vehicle accidents the earliest being in 1981, a gas poisoning accident, spinal degeneration, diabetes and migraines. From the same source namely Ms Donahue it was said that therapy or counselling was in relation to cumulative stresses. Mood dysregulation was attributed to the coward punch. The assessment made no reference to the wharf incident.

77. In the assessment of Alex Donahue which postdates the wharf incident it states that he had nightmares for a while after the accident. Dr Vickery seems to assume that is a reference to the wharf incident although it is not expressly referred to. It said that the nightmares ceased for the last month. Dr Vickery concludes that means that they had substantially resolved by mid-2017.

78. With respect I consider Dr Vickery is perhaps overly emphatic in discarding any reference to the incident on the wharf. Rather I conclude that it is simply one of a significant number of life events that contribute to the psychological state that Mr Connolly is presently in. I do not accept that the absence of nightmares for one month means that they have substantially resolved by that time. Nor do I consider the failure to expressly refer to this event means that it has not played some part in his current condition. I do find however that of all the factors attributing or contributing to the current psychological condition of the plaintiff the wharf incident is not the most significant aspect of those contributing events. It is a minor event in a collection of more serious events contributing to his condition.

79. A significant matter adverse to the plaintiff is his willingness not only to say he was in good health as at October 2016, which I find he clearly was not, but also to attribute the later amputation of his little toe on his left foot as being a result of the wharf incident. As noted above, the short history of that event is that in July 2018 he had an ulcer on the left foot something that developed after he had reported a thumbtack going through his shoe. In October 2018 he presented to his GP with ulcer and cellulitis over his left fifth toe. The plaintiff was referred to hospital with what was described by his treating GP as “a very infected diabetic ulcer with cellulitis of his left foot now as well” and in January 2019 that toe was amputated. I find that this was the cause of the need to amputate the toe. It is not attributable to the accident that occurred in October 2016 when he reported to the Tweed Hospital with variable sensation to his left foot but with no evidence that there was any breaking of the skin causing any infection that might have somehow persisted unnoticed for more than two years.

80. Whether due to his psychological state or whether it was deliberate is perhaps neither here nor there. But the presentation of a case relying heavily on the amputation of this toe which plainly is unconnected to the incident the subject of the claim, taken together with his assertion that he was in good health at the time of the incident, result in very great caution being needed when determining a state of the plaintiff.

81. In terms of injuries suffered I am only satisfied that there was some injury to the left lower limb as set out in the contemporaneous notes of the Tweed Hospital and some addition to the stressful factors in his life that have contributed to his psychological state albeit that on the expert evidence before me there is no recognised psychological condition. I note that under the CLA a distinction is drawn between pure mental harm and consequential mental harm, with only the former requiring the proof of a recognised psychiatric illness. Although the self represented plaintiff did not express it this way, I treat his claim as being one for consequential mental harm.

82. The question then in terms of noneconomic loss is whether the severity of the noneconomic loss is at least 15% of a most extreme case. On the evidence it is difficult to assess the extent to which the stress and anxiety suffered by the plaintiff which I do accept that he suffers has been added to by the events of the wharf incident. The physical injury to the left lower limb on its own would in my view be insufficient to constitute 15% of a most extreme case. Doing the best that I can however I do consider there needs to be some finding favourable to the plaintiff that his degree of stress and anxiety has been added to as a result of the wharf incident. There is sufficient evidence referred to in the report of Dr Vickers which shows that even if the depression referred to is not considered a reference to a recognised psychiatric illness, it is an impact on the person’s mental condition, here the plaintiff. The evidence was that the plaintiff experiences recurring thoughts about the wharf incident, in the same way, though not I find to the same extent, as he does with the coward’s punch incident.

83. Taking that factor into account, I would assess the noneconomic loss as being 18% so that he is entitled under section 16 to 2.5% of a most extreme case. As at 1 October 2021 the maximum amount was $693,500. 2.5% of that is an amount of $17,500.

84. Next the plaintiff claimed out-of-pocket expenses including according to a statement of claim medical travel and other costs. The only evidence of this attributing some dollar amount was exhibit C which was a collection of receipts for what was really property damage suffered. The defendant did not really take any point against this and suggested a estimated $1000 though when it is actually added up the receipts total $2061.83 and I would allow that amount.

85. Lastly there was a claim for domestic assistance, or to adopt the term used in section 15 of the CLA, gratuitous attendant care services. By section 15(3) no such damages may be awarded unless the services are provided for at least six hours per week and for a period of at least six consecutive months. On the evidence as set out above it was conceded by the plaintiff that the evidence at its highest did not amount to care being provided for any more than four months. Furthermore, that appears to have been a broken period stretched over the immediate days after the wharf incident and then the immediate time after the amputation. As a consequence, there should be no allowance for this head of damages.

86. I have referred in these reasons to submissions made by the defendant. The plaintiff's submissions should be recognised for completeness. With respect they did not provide great assistance to the plaintiff for much of it was referring to matters that were not in evidence. The overall point was however that the Council should have maintained the wharf and did not do so and that it should have been inspected again between July and October. I have dealt with that submission above. It was also said in submissions that there was no railing on the catwalk yet a cursory glance at the exhibit A shows the catwalk to have a railing so that submission fails.

Orders

87. Judgment for the Defendant.

88. Unless there is filed within 14 days submissions by either the plaintiff or defendant seeking some other costs order, the plaintiff to pay the defendant’s costs in such amount as may be agreed within 28 days and if not agreed, than as assessed.

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Amendments

23 February 2022 - Amendment to defendant counsel surname. No other amendments.

25 February 2022 - 1. Paragraph 58 - Left and right switched around

2. Paragraph 83 - $17,500.

25 February 2022 - coversheet - corrected case name

Decision last updated: 25 February 2022