Elliot James Lawrence Stone v The Owners - Units Plan 1214 and Nectaria Nominees Pty Ltd and Debra Nominees Pty Ltd and Hawkesbury Nominees Pty Ltd

[2012] ACTSC 164

ELLIOT JAMES LAWRENCE STONE v THE OWNERS - UNITS PLAN 1214 AND NECTARIA NOMINEES PTY LTD AND DEBRA NOMINEES PTY LTD AND HAWKESBURY NOMINEES PTY LTD
 [2012] ACTSC 164 (25 October 2012)

OCCUPIER’S LIABILITY- Alleged fall from unguarded retaining walls on property boundaries - inadequacy of evidence to establish cause of injury - negligence of defendants in failing to guard retaining walls - whether liability avoided in circumstances of no prior history of accident or where independent contractors engaged in design and construction of developments - extent of duty of care of defendants to intoxicated plaintiff - extent of contributory negligence of intoxicated plaintiff - assessment of damages

Civil Law (Wrongs) Act 2002 (ACT)

Cole v South Tweed Heads Rugby League Football Club (2007) 217 CLR 469
Francis & Ors v Lewis [2003] NSWCA 152
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506
NSW Department of Housing v Hume & Anor [2007] NSWCA 69
Roads and Transport Authority of NSW v Dederer (2007) 234 CLR 330
Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161
Wyong Shire Council v Shirt (1980) 146 CLR 40

No. SC 214 of 2008

Judge:             Sidis AJ           
Supreme Court of the ACT

Date: 25 October 2012

IN THE SUPREME COURT OF THE     )
  )          No. SC 214 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:ELLIOT JAMES LAWRENCE STONE

Plaintiff        

AND:THE OWNERS UNIT - PLANS 1214       

First Defendant

NECTARIA NOMINEES PTY LTD

Second Defendant

DEBRA NOMINEES PTY LTD

Third Defendant

HAWKESBURY NOMINEES PTY LTD

Fourth Defendant

ORDER

Judge:  Sidis AJ
Date:  25 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. Verdict and judgment for the defendants.

1. The plaintiff is to pay the defendants’ costs of the proceedings.  This order is suspended to allow any application for a special costs order to be listed in the week commencing 22 October 2012.

1. The exhibits will be retained for 28 days.

1. My reasons are published.

1. Mr Elliot James Lawrence Stone was very seriously injured on 22 March 2005, his 27th birthday.

1. An unknown person telephoned the Australian Federal Police and reported that the plaintiff was lying in a pool of blood in the driveway to a parking area within the property jointly owned by Nectaria Nominees Pty Ltd, Debra Nominees Pty Ltd and Hawkesbury Nominees Pty Ltd (referred to in these reasons as the second defendant).  The second defendant’s property comprised the commercial development known as Lakeview Square.

1. The first defendant, The Owners – Units Plan 1214, was the registered proprietor of the adjoining property known as Miramar Apartments. 

1. The plaintiff claimed that he suffered injury when he fell from a height of about 3.5 metres from the first defendant’s property onto the second defendant’s property. 

1. The plaintiff’s claim against the fifth defendant was resolved prior to the hearing of the action.

1. The claim raised the following issues:-

1.   Whether the plaintiff in fact fell in the manner claimed.

2.   Whether there was negligence on the part of either defendant arising out of the conditions that existed on the boundary of their properties at the time of the plaintiff’s injury.

3.   Whether there was contributory negligence on the part of the plaintiff and if so whether it was of such significance that it was effectively the sole cause of his injuries.

4.   The compensation, if any, to which the plaintiff was entitled in respect of his injuries. 

The plaintiff’s background

1. The plaintiff had an unfortunate background.  It was not my function in this action to judge his lifestyle.  I set out these background facts to provide the context in which the claim was made.

1. The plaintiff was born in New Zealand on 22 March 1978.  He did not do well at primary school in New Zealand, where he was asked to leave because he was uncontrollable.  After moving to Australia with his family, he was suspended and ultimately expelled from high school in Canberra.  He enrolled in college for years 11 and 12 of his high school education but dropped out after barely attending.

1. His criminal history commenced in 1992 in the Children’s Court.  He subsequently offended as an adult.  His crimes included theft, assault and on one occasion unlawful possession of fire arms.  He held no driver’s licence.  He committed multiple offences of driving without a licence. 

1. As is not unusual with troubled children, the plaintiff’s use of illicit substances commenced with marijuana whilst he was still at school.  He used heroin from his early 20s.  He also used cocaine and amphetamines, including ecstasy, speed, and crystal methamphetamine.  He sometimes mixed the drugs he used.  It was apparent that he was addicted, at least to heroin.

1. The plaintiff claimed that he gave up substance abuse during a three and a half year relationship with a girlfriend.  He resumed his use of illicit substances after the breakup of the relationship and he continued to do so until the date of his injury on 22 March 2005. 

1. The plaintiff denied that he suffered from alcoholism or that he had a drinking problem.  He agreed that at times he drank to excess but said that at the time of the incident he had moderated his intake of alcohol.

1. The plaintiff’s employment history was poor.  He held a number of unskilled jobs for short periods of time.  He disagreed that his employment history extended to only six months of the ten year period between leaving school and his 27th birthday.  He said it was more likely that he actually worked between one and two of those years.

1. At the time of the incident the plaintiff was unemployed.  His employment was terminated shortly prior to the breakdown of his relationship with his girlfriend and, according to the plaintiff, this was the reason for the breakdown.

1. The plaintiff had no permanent home at the time of the incident.

The Defendant’s Properties

1. Both properties had north facing frontage to Emu Bank.  Miramar Apartments were sited to the east of Lakeview Square.

1. Lakeview Square was the first of the sites to be developed.  It was constructed as a commercial development and car park in about 1990.  Miramar Apartments was a residential complex constructed in about 1994.  It comprised 72 one, two and three bed roomed apartments, having 152 bedrooms in total.

1. The driveway and car park area on Lakeview Square was excavated to the Emu Bank level.  The slope to the east was retained by a wall, referred to in evidence as wall A.  The wall was 2,070 millimetres high and approximately 0.44 millimetres to the west of the eastern boundary of Lakeview Square.  Drawings and photographs in evidence indicated that, at the time of construction of wall A, the site to the east was vacant.

1. Plans dated 1989 provided for the erection of a fence or balustrade on the top of wall A.  This proposal was varied by subsequent amendments in 1990 that removed the fence. 

1. The Miramar Apartments were built on a parcel of land that rose steeply to the south.  On its southern boundary was Chandler Street. 

1. The land on which Miramar Apartments were constructed was reshaped.  A second concrete retaining wall, referred in evidence as wall B, was built on the boundary between the two properties.  Wall B was 1,100 millimetres high from the top of wall A.  The western face of wall B was approximately 610 millimetres east of the western face of wall A.

1. A third retaining wall, referred to in evidence as wall C, was constructed within the Miramar Apartments site 1,920 millimetres from the boundary.  Wall C was of no relevance to the plaintiff’s claim. 

1. Pedestrian access was provided at various points within Miramar Apartments by way of steps and footpaths at descending levels between Chandler Street and Emu Bank.

1. Between the western most building on the Miramar Apartments site and its boundary were a staircase, footpath and a second staircase leading to Emu Bank.  To the west of this access was an area of landscaping planted with trees and shrubs. 

1. On each side of the two sets of steps was a balustrade and hand rail.  Between the steps was a concrete footpath 1,130 millimetres wide.  To the west of the path was the landscaped area.  The distance from the western edge of the footpath to the boundary and thus to wall B was 2.2 metres.  This area was level with the path for a distance of about 600 millimetres. 

1. The land then sloped to wall B, although the difference in levels between the flattened area to wall B was not apparent from the evidence.  The land was then terraced at the level of the top of wall A.

1. There was no fence or balustrade on wall A or on wall B on 22 March 2005.  There was no handrail on the western edge of the footpath.  A cyclone wire fence was erected on the top of wall A in about 2008.

1. The plaintiff claimed that he fell from the Miramar Apartments complex to the area of the car park in Lakeview Square and that this fall resulted in his serious injury.  He claimed that the unguarded changing levels between the two properties presented a hidden danger that the defendants failed to address by providing some form of barrier on the common boundary of the properties.

The Incident

1. The evidence of the events leading up to the incident was confused.  The plaintiff had little memory of those events and no party called any of the persons who were with the plaintiff in the hours prior to the incident.  Statements provided by those persons were at times contradictory.

1. The plaintiff’s version was as follows.

1. On 21 March 2005 he won a substantial amount of money, said to be between $1,000.00 and $1,400.00, playing poker machines at a club.  By the time he left the club, at 1.00 am, he retained about $1,000.00 of the win.  He was at the club with his stepbrother, Justin, and friends, Manoah and Jose. 

1. After leaving the club they went together to the Carotel and took a room for the night.  The plaintiff’s memory of arriving there was vague.

1. At some time on the following day Manoah drove the plaintiff to a shop where he purchased a clutch kit for his car.  This cost about $200.00, was packed in a directory-sized box and weighed about 10 kilograms.

1. At about lunchtime the four men went to a different club, where the plaintiff again played the poker machines.  He did not remember the result at this gaming but maintained that he was not surprised that police found only $50.00 in his wallet after his injury.

1. The plaintiff and his companions left the club and went to an apartment at Miramar Apartments occupied by a woman named Amanda.  The plaintiff did not remember the time at which they arrived but said it was after dark.  He had little memory of the events at the apartment. 

1. He said he remembered that he argued with Manoah and he remembered that he almost fell and knocked over an item of furniture.  He remembered that Amanda insisted that he leave.

1. The plaintiff left with Justin.  After leaving, they argued when they were standing on a walkway at the foot of some stairs.  The plaintiff told Justin to “piss off”.  He did not know how Manoah and Jose went home.  He remembered that the walkway lead to the main road, the lake and to the vicinity of the Hungry Jacks food outlet.

1. The plaintiff remembered nothing more until he recovered consciousness in hospital four days later.

1. In respect of his substance abuse that day, the plaintiff said he knew that he did “something like” injecting heroin with Manoah 24 hours or so before the incident.  He did not remember injecting heroin with Justin later in the afternoon.  The plaintiff remembered injecting amphetamines.  He remembered that he drank from a 750 millilitre bottle of vodka while at Amanda’s apartment.  He denied that he drank the full bottle.  He said it was shared by all of those at the apartment. 

1. As already noted, none of the plaintiff’s companions on 21 or 22 March 2005 were called to give evidence.  Statements that they provided to police were contained in the plaintiff’s bundle of documents, Exhibit C and in Exhibit 1D-5.  This evidence was unsworn and untested and represented the recollections of persons who, I inferred, self administered drugs and consumed alcohol in company with the plaintiff.  I therefore exercised caution when taking them into account. 

1. In an initial statement (Exhibit C.2.742) Manoah said that the plaintiff injected heroin at 5.00 am on 22 March 2005.  In a subsequent statement he said that the plaintiff “might” have used heroin at 5.00 am. 

1. He confirmed that he drove the plaintiff to purchase the clutch kit.  He confirmed that the four males went to a club, arriving at about 12.00 pm or 1.00 pm.  He said that each of them drank two schooners of full strength beer and they left the club at about 4.00 pm to go to Miramar Apartments.  He said the plaintiff lost almost all of his winnings at the club on the afternoon of 22 March 2005.  He also said the plaintiff had the clutch box with him when he left the club. 

1. Manoah said they initially stayed at the apartment for about an hour and then he and the plaintiff went to a liquor store where Manoah purchased a case of beer.  On returning to the apartment the four males drank one beer each.  Amanda said that she did not like beer. 

1. Manoah and the plaintiff left and went to Manoah’s home where he showered and changed and they ate some food.  On the way back to the apartment the plaintiff stopped to purchase a bottle of vodka.  On returning to the apartment Manoah offered everyone vodka and he poured shots for himself, Amanda and the plaintiff.  Manoah said that he did not like the vodka and so he drank no more.  He said Amanda had four shots.  Initially he said the plaintiff drank the remainder of the 750 millilitre bottle.  He subsequently said that by the end of the evening the bottle was three quarters empty. 

1. Manoah said that he and the plaintiff argued and he left and drove away in his car.  He did not see the plaintiff again that night. 

1. The plaintiff’s stepbrother, Justin, approached Detective Senior Constable Casey who was engaged in taking photographs of the area in which the plaintiff was lying.  Detective Senior Constable Casey arrived at the scene at about 12.15 am.  She recorded the following elements of a conversation with Justin:  

“He’s fucked, isn’t he? ... His back is pretty fucked and so is his neck ... How the hell did he fall through there, there is a fence there? ... You are not pinning this shit on me, I’m just the one that came back and found him ... When I left he was really drunk, I had an argument with him.”

1. After that conversation Justin was taken to Belconnen Police Station in the early hours of 23 March 2005.  He provided a statement there, in which he said the plaintiff had been using speed and heroin and he returned to drug use following the breakdown of his relationship.  He said the plaintiff purchased both drugs on 21 March 2005.  Justin said nothing of being with the plaintiff on 21 March 2005 or overnight.  He said he met the plaintiff, Manoah and Jose at 1.00 pm on 22 March 2005 and that at a club they drank beer and played poker machines.  He said the plaintiff lost $350.00.  He said they left the club at 5.00 pm and, after leaving, he and the plaintiff injected heroin. 

1. After purchasing food, they went to Amanda’s at Miramar Apartments.  The plaintiff and Manoah went to purchase alcohol and they brought back beer and vodka.  The plaintiff drank vodka and beer.  The whole bottle of vodka was consumed with Manoah and Amanda having some, but not much. 

1. He said the plaintiff and Manoah argued and Manoah left.  Eighty minutes later he, Jose and the plaintiff left.  At this time the plaintiff was unsteady, knocking over a wall unit containing a television.  He said the plaintiff could barely walk upstairs.  They went to the top of some stairs and walked towards the Labour Club, or the eastern end of the Miramar apartment complex.  There they discovered that Manoah’s car had gone.  He and the plaintiff argued.  He gave the plaintiff the clutch pad and then walked with Jose to Woolworths.  After purchasing some items he went back to look for the plaintiff, ultimately arriving at the car park where he saw police cars and the plaintiff. 

1. The plaintiff was disparaging of Justin’s capacity as a witness and, although Justin was available and under subpoena at the request of the second defendant, no party called him to give evidence. 

1. Amanda told police that the plaintiff and Justin argued at the apartment.  She asked them to leave.  She made no reference to the presence of Manoah or Jose at that time.  She said the plaintiff appeared to be extremely drunk, swaying as he stood.  It was unclear from her statement if it was the plaintiff or Justin who knocked over the TV cabinet. 

1. She said that 30 minutes later she went to bed and was woken by Justin, who knocked on a glass sliding door.  He told her that something had happened to the plaintiff.  She told him to leave. 

1. A woman named Rachael was staying temporarily at Amanda’s apartment.  She returned to the apartment at 9.00 pm and was introduced to the four males.  She went to bed.  At 11.00 pm she was woken by the sound of two shouting males, whom she identified as the plaintiff and Justin.  She said that they appeared to be intoxicated and she told them to leave.  She said they both left.  She also made no reference to the presence of Manoah or Jose at the time the plaintiff and Justin left the apartment.

1. There was no statement from Jose.

ISSUE 1 – Did the evidence establish that the plaintiff fell from the retaining walls?

1. The defendants contended that the plaintiff was unable to point to evidence that was sufficient to establish that he in fact fell from the retaining walls.  They pointed to police evidence that recorded that a doctor at The Canberra Hospital said that the plaintiff’s injuries were consistent with a fall, an assault or a motor vehicle accident.

1. Police made observations and took photographs of the area in which the plaintiff was found in an attempt to determine the cause of his injuries.  Forensic pathologists, Dr Collins and Professor Duflou, provided expert opinion concerning the potential causes of the plaintiff’s injuries.

1. Usefully, there were some features on which these experts agreed.  They agreed that the plaintiff’s injuries were the result of application of blunt force trauma to the left side of his head.  In Dr. Collins’ opinion, the skull fracturing was so extensive that it would require significant or severe force to produce the damage. 

1. Professor Duflou initially proposed that it was possible that the plaintiff was injured elsewhere and that he subsequently staggered to and collapsed at the place where he was located.  He ultimately accepted that this did not occur and agreed with Dr Collins that the plaintiff suffered injury at the place where he was found.

1. The experts agreed that the plaintiff suffered from the following injuries:

·     Extensive abrasion/grazing with associated bruising to the left side of the face, including the left cheek, left jaw, the left forehead, the pinna of the ear and the left side of the neck.

·     Fracturing of the left base of the skull, consisting of a fracture of the left petrous temporal bone extending into the left mastoid air cells and the middle cranial fossa.

·     Fracture of the left zygoma.

·     Fractures of the anterior and medial walls of the left maxillary sinus.

·     Bleeding from the left ear.

·     Fracturing of the right mandible.

·     Various cranial nerve palsies secondary to injuries.

The Involvement Of A Motor Vehicle

Accidental

1. Professor Duflou suggested that the plaintiff’s injuries might have been caused by impact with one of the many broad flat surfaces of a car, nominating potentially the windscreen, bonnet or side mirror.  He also said that it was possible the injury was the result of secondary impact with the ground following impact with a motor vehicle.

1. He said that this was consistent with the absence of injury to the plaintiff’s hands.  He proposed that the plaintiff’s injury could have been suffered if he had been struck by a motor vehicle travelling at between 20 and 50 kilometres per hour. 

1. He had not been to the car park where the plaintiff was found and therefore was unable to say in which direction the car would have travelled or the direction from which a car would have been capable of generating a speed of up to 50 kilometres per hour.

1. He agreed that, if the plaintiff had been standing upright or walking, it was likely that he would have been struck at waist level or on his legs, potentially injuring other parts of his body with a secondary impact from falling to the ground.  He said the area to which he was likely to have been thrown depended upon a number of variables, namely the part of the car park in which he was struck, whether he was thrown over the bonnet and the type of vehicle involved.  He agreed that if the vehicle was travelling at 50 kilometres per hour it might be expected that there would have been damage to the bonnet, the windscreen or the side mirror and that there would have been debris in the area.  No debris of this nature was observed by any of the police officers who investigated the site. 

1. While Professor Duflou said that a motor vehicle accident was not his favourite scenario, he maintained that it was entirely reasonable that there was a slow to moderate speed motor vehicle collision.  He accepted that it must be assumed that the driver of any vehicle involved did not stop after the impact. 

1. Dr. Collins agreed that the hypothesis of a motor vehicle accident could not be excluded.  He said that there was no evidence that the plaintiff was run over and he said that in theory it was possible that the plaintiff could have suffered the skull fractures as a result of being struck by a bumper bar.  He said that contact in this fashion would have been likely to cause injury to the plaintiff’s cervical spine and injuries to his shoulder when he was propelled onto the surface of the car park.  In addition, he said that, to have suffered the facial abrasions that were noted, it would have been necessary for the plaintiff to fall in a specific manner so that they coincided with the sites of the fractures.  He said that this was unlikely.  He agreed that whether the abrasions were caused on contact with the vehicle depended upon the surface of the vehicle.

1. I took account of Professor Duflou’s concession that impact with a motor vehicle was not his favoured hypothesis and of the number of substantial weaknesses in this hypothesis that were pointed out by Dr Collins.

1. I concluded that it was improbable that the plaintiff’s injuries were the result of impact with a motor vehicle.

Non-accidental

1. The principal feature on which the defendants relied for the proposition that a motor vehicle was involved was the police observation of the presence of bloodied tyre marks close to the position in which the plaintiff was located.  The defendants suggested that the plaintiff was driven to the car park, ejected from a vehicle and assaulted.

1. Police Constable Bailey, the first police officer to attend upon the plaintiff, described the presence of blood that was coming from the plaintiff’s head, nose and ears and that flowed in a rivulet to the west.  At the time Constable Bailey arrived, the blood was not congealed.  Photographs taken by Detective Senior Constable Casey also depicted this flow of blood but, by the time of her photographs, the blood was congealed.

1. There were two patches of blood bearing the pattern of tyre marks to the south of the rivulet of blood.  There were two further areas of blood described by Senior Scientific Officer Holmes as “small smears” to the south-east and one metre from the main pool of blood. 

1. The issue concerning the tyre marks and the smears of blood revolved around the question of when they were made.  The defendants claimed that, if it was established that the tyre marks were present prior to the arrival of police, an inference could be drawn that a motor vehicle was involved in the injuries suffered by the plaintiff.

1. I noted that Police Constable Hutcheson, who arrived with Constable Bailey, (Exhibit C.764) recorded the sequence of arrival of vehicles as follows:-

1.   0008hrs - Police Constables Bailey and Hutcheson

2.   0011hrs - A further police vehicle

3.   0013hrs - A further police vehicle

4.   0017hrs - An ambulance

5.   0025hrs - A second ambulance

6.   0034hrs - The ambulance left with the plaintiff

7.   0037hrs - A further police vehicle arrived

1. Constable Bailey said that he did not see any tyre marks when he arrived at the scene.  He also said that his focus of attention was on the plaintiff while Constable Hutcheson took photographs.  Constable Hutcheson’s photographs were not in evidence.  His case notes referred to, “four small tyre print marks in blood on ground from victim towards interior of car park”.  I assumed that his reference to interior to car park was a reference to the southern side of the car park.  Constable Hutcheson was not called to give evidence and it was therefore not possible to clarify with him the time at which he noted the tyre print marks.  However, the photographs taken by Constable Casey (Exhibit A.2 pages 8 and 9) and Officer Homes (Exhibit A.3 pages 3, 4, 18, 19 and 20) showed only two tyre print marks. 

1. Officer Holmes agreed that the position of the tyre marks suggested that a tyre passed through the rivulet of blood that flowed from the plaintiff’s head and turned one full circumference to leave the two equi-distant marks.

1. Officer Holmes’ observations were that the marks were left by a car, being too wide to have been left by a motor cycle and too narrow for a truck or larger vehicle. 

1. A number of questions were put to Officer Holmes concerning the manner in which the mark from only one wheel of a four wheeled vehicle was made.  I accepted that she was not qualified to answer these questions. 

1. Constable Casey was in a police vehicle that arrived at 0015am.  When she arrived there were other police vehicles at the southern end of the car park.  She did not know whether they entered from Emu Bank and drove past the plaintiff.  She agreed that the presence of the tyre marks suggested the possible involvement of another vehicle and it was improbable that police cars would have driven through the blood.  She also said that she was careful not to contaminate the scene.  She took photographs of matters that she considered to be relevant. 

1. Constable Casey’s photographs were not timed, but it was evident that they were taken both before and after the ambulances arrived.  Therefore from the time that Constable Casey commenced to take photographs and before Officer Holmes was present on the site at 1.00am, there were four police vehicles and two ambulances at the scene. 

1. Officer Holmes did not accept the description of the smaller area of blood to the south-east of the plaintiff’s position as a pool.  She said it was a smear and it was not a spray of blood.  She did not accept that this blood came from a blow to the plaintiff’s head.  She said this smear could have been present for a number of reasons.  One of those was that it occurred in the course of treatment or transfer by ambulance officers. 

1. Officer Holmes took swabs of the blood from the main pool and from each of the two areas of tyre mark.  It was not clear if the swabs were ever tested but, if they were, the results were not made available to the court.

1. The experts agreed that the tyre marks, assuming they were stained with the plaintiff’s blood, were deposited after he fell to the ground and after the rivulet of blood from his head extending sufficiently to the west to be picked up on one tyre.  They estimated this would have taken between 5 and 15 minutes.  They agreed, therefore, that the car that caused the marks could not have been responsible for the plaintiff’s injury.

1. While he accepted that the marks were the result of a tyre travelling through blood, Dr Collins said that no one knew what motor vehicle was involved and when and how the stains were deposited.  In addition, it was not known if the stains were those from the plaintiff’s blood.

1. Dr. Collins agreed that the two marks were consistent with two full circumference turns of one wheel of the vehicle.  He said that they were also consistent with a vehicle running over a droplet of blood closer to the rivulet coming from the plaintiff’s head.  He noted however that there was no evidence in the photographs that the extensive blood trail was disturbed by a car.

1. He did not agree that it could be assumed that the wheel was a passenger side wheel. 

1. He said that it was unlikely that the blood causing the tyre marks came from a blood spray because there was no spray noted in the area.  There was one blood drop 2cm in diameter on the plaintiff’s jacket. 

1. As to the smear of blood circled on one of Officer Holmes’ photographs, Dr. Collins agreed that there was no definite explanation for the position of this material.  He said it could have been deposited when the plaintiff exhaled or when he was moved by ambulance officers.  He accepted that it could not have been deposited in a position to the south of the plaintiff’s head when he was lying east-west with his face pointing north.

1. There were a number of reasons for my conclusion that the evidence concerning the source and manner of deposit of these blood marks was so speculative that it was of no assistance in determining the issues in this case.

1. Close analysis of the police evidence did not, as suggested by the defendants, establish that the tyre marks were present before the multiple police and ambulance vehicles arrived in the second defendant’s car park.  Nor did the evidence point conclusively, as contended particularly by the second defendant, to the proposition that a vehicle must have been stationary immediately after the plaintiff’s injury for the 5 to 15 minutes that the experts agreed it would have taken for the rivulet of blood to extend from the plaintiff’s head to the point where any vehicle waited.

1. A second possibility was that a vehicle approached from the south through the car park and that the front off side wheel ran into the rivulet of blood, leaving a tyre mark when the vehicle reversed.  The police evidence indicated that a number of police vehicles entered the car park from the south.

1. Finally, I concluded that the defendants’ hypothesis that the vehicle waited until the rivulet of blood extended from the plaintiff’s head to the point where it ran between the front and rear wheels of the vehicle so that the rear nearside wheel travelled over the blood and made those tyre marks was highly improbable.

1. I did not accept that this was an available rational inference from the scant evidence that was available in this case.  I considered it unlikely that, having driven the plaintiff to a public car parking area, ejected him from the vehicle, assaulted him with significant and severe force, the offender would stay for the 5 to 15 minutes before departing from the scene.

Assault/Fall

1. This left for determination the issue of whether the evidence established satisfactorily that it was more probable that the plaintiff’s injuries were the result of a fall from the retaining walls and not the result of some form of assault.

1. In dealing with these competing propositions, I noted that there were elements of the evidence that were of no assistance, elements that supported the plaintiff’s claim and others that did not.

1. Those that did not assist included the following.

1. The presence of blood smears:  There was no evidence that permitted any inference to be drawn, for or against the position of any party to the proceedings, concerning the presence of smears of blood to the south of the position in which the plaintiff was found.  It was equally possible that these smears were the result of blood deposited in the area before the plaintiff was found or that, as suggested by Dr Collins and police witnesses, they were deposited in the course of treatment or transfer by ambulance officers.  Although swabs were taken, no test results were available to establish that any of these deposits were of the plaintiff’s blood.

1. The missing clutch plate:  Dr. Collins said that the fact that the clutch plate was not found did not mean that it was not present on site.  He said the only relevance of the clutch plate was that it might have been used as a weapon.  This was inconsistent with the nature of the plaintiff’s injuries and therefore the fact that the clutch plate and its box were not found was irrelevant. 

1. Even if I accepted the untested evidence of the statement of Justin that the plaintiff had the clutch plate in his possession when the brothers separated, there was no evidence of what happened to it.  It was suggested that theft of the clutch plate might have provided the motivation for a vicious assault on the plaintiff.  Again, I considered this to be speculative and of no assistance.

1. The absence of other witnesses:  The defendants contended that adverse inferences followed as a matter of course from the failure of the plaintiff to call evidence from those who were his companions immediately before his injury. 

1. I did not accept that any such inference was available in this case.  The plaintiff put into evidence the written statements provided by these persons that established that none of them was present at the time of the plaintiff suffered his injuries.  They were therefore not in a position to assist in the determination of what happened to cause those injuries.

1. Their written statements all pointed to the fact, not denied by the plaintiff, that he injected heroin and amphetamines in the 24 hours prior to his misadventure and that he was substantially affected by alcohol.  I did not consider it necessary that the plaintiff call witnesses to confirm that fact.

1. The only area of potential concern arose out of the statements made by Justin to Constable Casey.  Aside from the suggestion that Justin denied any responsibility for the plaintiff’s injuries, those statements took the matter no further.  In my view, this did not place Justin in the plaintiff’s camp to the point where clarification was required.

1. Collapse at the scene by reason of intoxication:  The question of whether the plaintiff fell from an erect position because of his state of intoxication was discounted by Dr. Collins because the fall from such a position would have been insufficient to have caused the head fractures from which the plaintiff suffered.  Professor Duflou did not dispute this proposition.

1. Loss of consciousness before falling:  Dr. Collins accepted that he could not exclude that the plaintiff was already unconscious before he fell.  He said that in such a case he would expect evidence of injury sufficient to render him unconscious and that it would be necessary for the plaintiff to be precipitated in a manner that was similar to a falling process.

1. In response to the question of whether the plaintiff’s consumption of drugs and alcohol might have rendered him unconscious before his fall, Dr. Collins said that there was no evidence of the extent to which he was intoxicated by these substances. 

1. Professor White, pharmacologist, reported on the consequences of the consumption of alcohol and illicit substances in varying amounts.  He said that it was entirely possible that, if the plaintiff consumed virtually the entire 750 ml bottle of vodka, he would lose consciousness. 

1. Although there was evidence that the plaintiff was affected to the point where he was unsteady on his feet, it did not support a finding that he consumed virtually the whole of the bottle of vodka and thus did not provide any sufficient basis for concluding that he fell from the retaining walls because his consumption of alcohol rendered him unconscious. 

1. The following elements supported the plaintiff’s claim.

1. The position in which he was located:  The place where the plaintiff was found at the foot of the retaining walls and the position in which he was found were both factors that were consistent with a fall. 

1. The defendants argued that it was not established that the plaintiff was at any stage prior to his injury present on the walkway at the western end of Miramar Apartments and that it could, therefore, not be concluded that he suffered injury as a result of falling from the retaining walls.

1. The only admissible evidence of the plaintiff concerning his movements immediately prior to injury was that his last memory before waking in hospital four days later was that he was on a walkway within the Miramar Apartments complex.

1. The defendants also argued that there was evidence that indicated that the plaintiff came to be in the car park of the second defendant’s premises by some route other than falling from the retaining walls.  They pointed to Justin’s statement to police that he and the plaintiff left Amanda’s apartment and walked up a staircase on the eastern rather than the western side of Miramar Apartments.  The defendants’ also relied on the following material contained in the report, dated 12 June 2012, of Dr Casikar:

He remembers having an argument with his friends and he got out of the car and was standing by the wall.  He does not remember events after that. (Exhibit 2D-3)

1. I rejected these arguments for three reasons.

1.Justin’s statement that he and the plaintiff left with Jose was inconsistent with those of Amanda and Renee that the two stepbrothers left together without reference to Jose.  Justin did confirm the plaintiff’s evidence that they argued and separated.  There was no evidence to suggest that Justin knew anything about the path that the plaintiff took after they separated.

2.The defendants insisted that the plaintiff be restricted in his evidence to the history given in particulars and in virtually all of the statements made concerning the incident that he had no memory of how he suffered his injury other than that he was standing on a walkway.  I did not accept that I could restrict the plaintiff’s evidence concerning his last memory in the way demanded by the defendants but at the same time take account of the history reported by Dr Casikar, particularly when that history was given for the first time in June 2012, more than seven years after the incident and when it was entirely inconsistent with any other history provided.

3.If I accepted that there was sufficient other evidence from which to conclude that the plaintiff’s injuries were the result of a fall from a height, the place at which and the position in which he was found left open only the further conclusion that he fell from the retaining walls.

1. Topography:  Professor Duflou’s rejection of the fall from the retaining walls stemmed from the difficulty of envisaging the possibility that the plaintiff would fall over wall B in a manner that resulted in his clearing the 600 mm gap between wall B and wall A and continuing head long to the car park below.  He used the phrase a running leap to describe the manner in which this might have been achieved.

1. This phrase was relied on in particular by the first defendant to suggest that in order to fall from the walkway at the western end of Miramar Apartments onto the car park below it would have been necessary for the plaintiff to generate sufficient momentum to project two to three metres forward without touching or leaving any footprint within the foliage that covered the walls.

1. Alternatively, the first defendant submitted, the plaintiff would been required to walk 3.5 metres from the walkway through the foliage to the top of wall B, something that it was unlikely that any person would do in the darkness and with the obvious difference in levels between the two properties.

1. These arguments appeared to proceed on the basis that the topography between the edge of the walkway and wall B was uniform and level.  The unchallenged description of the topography contained in Mr Plaister’s report was that the distance between the walkway and wall B was 2.2 metres and that the area was level for a distance of only 600 mm from the edge of the walkway.  The surface sloped from that point to wall B.

1. Although there was much that was not known about the circumstances of the plaintiff’s fall, one fact that was clearly established was that he was significantly intoxicated by illicit substances and alcohol.  The makers of various statements described his difficulty in maintaining his balance.  In my view, the topography was such that it was entirely possible to envisage that the plaintiff, in his intoxicated condition, might have staggered or stumbled into the landscaped area and been unable to regain his balance before travelling the relatively short distance to the point where the land sloped towards wall B.

1. Thus, the evidence brought the plaintiff to the point where it was established that a fall from the retaining walls was possible.  Taken from this point it was necessary to consider the following features of the evidence that undermined his claim that his injuries were in fact the result of his falling from the retaining walls.

1. The plaintiff’s failure to extend his hands:  The plaintiff was found with his arms beside his body and with his palms facing up.  Professor Duflou said that he would expect to see injury to the plaintiff’s upper limbs as a result of an attempt to break his fall by extending his arms.

1. Dr. Collins agreed that in more than 90% of cases, persons extended their hands for protection when falling.  He accepted that it was reasonable to assume that the positions of the plaintiff’s arms at the time he was found were those in which he landed and that it was less likely that, having sustained blunt force trauma of sufficient force to cause skull fractures, the plaintiff’s hands would move from an extended position around to his side. 

1. Dr. Collins also accepted that police officers gave evidence of their observations of the plaintiff’s hands to the effect that there were no injuries apparent.  He pointed to photographs taken of the plaintiff’s hands at the hospital that he said showed clearly that there was injury to the plaintiff’s right palm and wrist.

1. He doubted the reliability of Constable Eggins’ note that she saw no sign of grazing on the plaintiff’s palms.  He said the police investigation at the scene was relatively cursory and lighting at the time was sub-optimal.  He also noted that the plaintiff’s hands were partially covered by his clothing.

1. Dr Duflou relied on the absence of evidence of injury to the plaintiff’s upper limbs that would be expected to result from his attempting to break his fall by extending his hands.  He said this action was likely to result in abrasions and possibly fractures.  He discounted the possibility that the plaintiff’s level of intoxication rendered him incapable of extending his hands. 

1. Professor Duflou referred to the Canberra Hospital note that recorded: UL - no obvious deformity lacs/bleeding.  He said the photographs that were taken after the plaintiff had been treated with surgery showed minor discolouration of the palm of the right hand and possible focal discolouration of the knuckles of both hands.  He said that these marks could have been the result of the vigorous struggle between the plaintiff and hospital staff at the time of the admission when Constable Eggins observed that the plaintiff’s legs and arms were being held down.  Alternatively he said they could have been the result of medical treatment. 

1. I reviewed those photographs, apparently taken by Constable Jennings on 26 March 2005.  They appeared in Exhibit C, pages 708, 710 and 711.  The photograph at page 710 shows a distinct bruise or graze mark at the base of the right palm extending to the plaintiff’s right wrist.  It was unclear whether there are other marks on the plaintiff’s hands and fingers shown in that photograph because of the poor quality of the photograph.  The photograph at page 711 appeared to show marks over the plaintiff’s knuckles on both hands and marks on the dorsal aspects of both hands. 

1. Professor White’s report dealt with the effects of methamphetamines, heroin and alcohol.  He noted that methamphetamine and heroin were present in a urine sample collected from the plaintiff at 4.34 am on 23 March 2005.  Although there was no evidence of when the plaintiff last used the substances prior to midnight on 22 March 2005, Professor White said their effects continued 4-6 hours depending upon the amount injected.  He pointed to evidence that indicated that the plaintiff continued to have heroin within his system at the time he was treated in the hospital.

1. Professor White described the effects of heroin and alcohol.  Those effects included confusion and the inability to think clearly as well as sedation, slowed reaction times, dizziness and confusion. 

1. There was no doubt that the plaintiff was highly intoxicated at the time he left the apartment.  It was apparent that, even if he was no longer affected by methamphetamines or heroin, the plaintiff’s alcohol consumption in itself was sufficient to affect his capacity to react if he fell from the Miramar Apartments complex to the Lakeview Square car park by extending his hands.

1. The only conclusion available was that, if the plaintiff did fall, he did not extend his arms.  One could envisage that, in his considerably intoxicated condition, there could have been confusion on his part.  Thus, I did not consider the absence of the ordinarily expected injury to his hands or arms to be conclusive evidence that he did not fall.

1. Ultimately, there were two aspects of the evidence that persuaded me that I could not accept that the plaintiff’s injuries were the result of a fall from the retaining walls.  They were the absence of evidence of other injuries and the mechanism by which it was necessary that he fall in order to limit his injuries to substantial head and facial fractures.

1. The absence of other injury:  Dr. Collins accepted that it was reasonable to expect that there would be evidence of bruising and other injury if the plaintiff had fallen in the manner he proposed. 

1. Both experts examined the hospital records and noted the absence of reference to injuries other than those to the plaintiff’s head.

1. It was apparent from the hospital notes that the doctors there examined and X-rayed a number of areas of the plaintiff’s body, aside from his skull to determine if there was further injury.  The notes recorded that medical staff examined the plaintiff’s thorax, abdomen, cervical spine and pelvis.  There were no rib fractures, the lung fields were clear, there was no pneumothorax and no abnormalities were detected on X-rays or CT scans.  These notes suggested a reasonably thorough examination by hospital staff. 

1. Dr. Collins suggested that the plaintiff might have been protected by his clothing.  He also said that in searching for injuries that required urgent medical intervention, hospital staff might not have recorded injuries regarded as minor or that might not have been apparent at the time of examination, such as abrasions or bruising.  Professor Duflou thought the notes were sufficiently comprehensive to indicate that even minor abrasions or bruising would have been recorded.  He said this in evidence to the court, but in his initial report (Exhibit 2D-5A) he agreed with Dr. Collins comment when he said that the documentation is suboptimal in that there is no detailed description of injuries, especially those on the surface of the body.

1. I accepted the proposition that it was likely that the hospital staff were less concerned to detail minor cuts and abrasions that might have been present on the plaintiff’s body.  The hospital records, however, demonstrated a rigorous and systematic examination of the plaintiff, both visually and through radiography.

1. There was no record that the plaintiff suffered injuries to his cervical spine, left shoulder, chest and rib cage or other injuries of the type that might be expected to result from a fall where the first point of impact was the base of the left side of his skull.

1. I required medical evidence in greater detail than was available in this case to persuade me that, on the balance of probabilities, a fall in the circumstances claimed by the plaintiff could result in injury of the limited nature that he suffered.

1. The mechanism of the plaintiff’s fall:   Dr. Collins was asked to explain the mechanism by which the plaintiff fell from wall B directly onto the car park with the left side of his head taking the full force of the impact with the surface of the car park. 

1. He said the plaintiff’s position on landing was reasonable in a scenario where he fell vertically at right angles to wall A.  He said he could not say more than that at the time of his fall the plaintiff was tending more to the horizontal than vertical.  He said he could envisage an erect individual going into the foliage at the top of wall B, stumbling through and falling from vertical to horizontal.  He thought it was likely that the plaintiff climbed from wall B and lost his footing. 

1. Dr. Collins accepted that grazing on the left side of the plaintiff’s face indicated that there was forward momentum at the time his head impacted with car park surface.  He also accepted that it was probable, in a broad sense, that the plaintiff would, therefore, have obvious signs of bruising and abrasions on other parts of his body. 

1. He rejected the proposition that it was highly improbable that his opinion was correct with cross examination by Mr Kelly on behalf of the first defendant proceeding as follows:-

“But for there to be – if you accept that there weren’t any injuries elsewhere on his body, no bruising, no anything else, that contact has to have been sufficient to absorb all the force and the forward momentum effectively causing his body to come to a stop, so that there is no real forward or downward motion whatsoever in his body when it rests on the ground.  Do you agree with that ? -------  Yes.  Yes.

That’s just highly improbable, is it not, ? ----  Not in my view.

But the way I described it is what, in effect you are saying;   for this to occur, for there to be no sign of other injury, he has to come down, his body hits the ground, effectively brings his body to a stop, the left hand side of his head brings his body to a stop ---- ? ----  within a short ----

----   and absorbs ---- ? -----  given a short distance.

Because that takes out any forward momentum ---- ? ---- Yes.

---- and absorbs all downward force ?  ----  Yes.

So the rest of his body hits the ground, there is virtually no speed at all? --- Yes.

(Transcript 243.37)

1. Professor Duflou said he struggled with the concept that the plaintiff could clear both retaining walls and land face first in the car park.  Although this part of his evidence was undermined by the fact that he did not inspect the conditions on either property, I had the benefit of a site inspection on the first day of the hearing.  This caused me to share Professor Duflou’s concerns.

1. I was not persuaded that a fall by the mechanism suggested by Dr Collins would have been the probable result of the plaintiff’s misadventure into the landscaped area and a stumble from wall B onto wall A.  I was not persuaded that, if a fall by that mechanism were possible, the plaintiff’s injuries would have been limited to head and facial fractures and abrasions.

1. Assault:  I considered that the evidence suggested that it was more probable that the plaintiff suffered injury when he was assaulted.  The police witnesses observed no indication of a violent struggle either within the landscaping on the first defendant’s property or in the car park of the second defendant’s property.  Their evidence of the absence of injury to the plaintiff’s hands indicated that the assault took place in circumstances where he had no opportunity to defend himself.

1. Professor Duflou agreed that the plaintiff’s injuries were consistent with the application of force with a blunt object. He said that the position where the plaintiff was found was coincidental.  He agreed that significant force would be required with a fist to cause the fractures that the plaintiff suffered and that this type of assault was therefore unlikely.  In addition, a blow from a fist would not have caused the abrasions that were seen on the plaintiff’s head.  Professor Duflou also agreed that it was possible, but unlikely, that the plaintiff was kicked by a foot bearing a boot, when he was on or near to the ground.  He agreed that there were no external injuries and therefore no blood spatter as a result of any such assault.

1. He agreed absolutely that the plaintiff’s injuries were consistent with his coming into contact with the bitumen surface of the car park where he was found.

1. Dr. Collins could not definitely exclude assault before the plaintiff fell.  He said there was no direct evidence to support this hypothesis.  He noted that there was no damage to the plaintiff’s clothing or injuries that might be expected from an assault. 

1. This left open the prospect that the plaintiff was assaulted with weapon of sufficient substance to generate the force necessary cause the injuries suffered by the plaintiff.  I accepted Dr Collins’ opinion that the plaintiff’s injuries were inconsistent with an assault involving the foam, directory sized box containing the 10 kg clutch plate.

1. I also accepted Professor Duflou’s opinion that a single blow of significant force from a weapon, such as a baseball bat, would have created sufficient ripped force to result in the skull fractures and sufficient momentum to result in abrasions following a fall to the surface of the car park.

1. I considered that the application of force of this nature was the more probable cause of the plaintiff’s injuries.

1. The result therefore was that the plaintiff’s claim failed.

1. I proceeded to deal with the other issues raised in the course of the hearing in the event that this matter proceeded further.

ISSUE 2 – Were the defendants negligent?

1. The defendants argued that, if the plaintiff established that he fell from the retaining walls, they were not liable for his damage because it could not be held that the requirements of ss 42 and 43 of the Civil Law (Wrongs) Act 2002 (ACT) had been met. They also claimed that they were absolved from responsibility because their buildings complied with all relevant standards and regulations and were designed and constructed by independent contractors for whose negligence they were not vicariously liable.

1. The Civil Law (Wrongs) Act provides:

Section 42

Standard of care

For deciding whether a person (the defendant ) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant's position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.

Section 43

Precautions against risk—general principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless—

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and

(b) the risk was not insignificant; and

(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.

(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):

(a) the probability that the harm would happen if precautions were not taken;

(b) the likely seriousness of the harm;

(c) the burden of taking precautions to avoid the risk of harm;

(d) the social utility of the activity creating the risk of harm.

Section 44

Precautions against risk—other principles

In a proceeding in relation to liability for negligence—

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk.

1. The defendants argued that the absence of any prior history of accident or injury arising out of the unguarded condition of the retaining walls established that they did not present a foreseeable risk of injury against which they, acting reasonably, ought to have taken precautionary action.  They relied on authorities such as Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305, NSW Department of Housing v Hume & Anor [2007] NSWCA 69 and Francis & Ors v Lewis [2003] NSWCA 152 in support of this argument.

1. These authorities all dealt with accidents that involved the use of steps or staircases.  The cases in which the plaintiffs failed involved steps, some of which did not comply with applicable standards, that were used over lengthy periods by many persons.  The result was that it could not be established that the stairs in themselves presented a risk of injury.

1. The authorities, however, recognised that the absence of prior history of accident did not always relieve an occupier from liability, even in a case involving steps.  In Francis v Lewis, although the staircase in question had been used without incident for very many years, the plaintiff succeeded in establishing negligence because the steps themselves were not the factor that created the risk of harm. The risk was created by the inadequacy in the balustrading of the staircase that failed to protect a user in the event of a slip or fall on the steps.  This risk was held to be foreseeable and to require the implementation of protective measures.

1. In my view, the facts in Francis v Lewis were clearly analogous to the present case.  The footpath and staircases on the western side of the Miramar Apartments were properly and adequately constructed.  What was overlooked was the need to provide protection in the event that a person departed more than one to two steps from the footpath whether or not inadvertently.

1. A person familiar with the area might be aware of the 3.5 metre difference in levels between the footpath and the adjoining car park.  A person not familiar with the area could not necessarily be expected to appreciate this substantial difference in levels.  In either case, the foliage and landscaping was such that it would not be immediately apparent to any user of the footpath that the land fell away at a point 600 mm from the edge of the footpath.

1. I concluded that there existed a hidden trap that presented a significant and foreseeable risk of harm to persons on the Miramar Apartments site.

1. On the question of whether this was a risk of which the defendants knew or ought to have known, the defendants rejected out of hand Mr Plaister’s proposition that they ought to have undertaken some form of assessment of the risks associated with their properties.

1. I did not accept the argument that, having completed construction of their properties, the occupiers of commercial, public or substantial residential developments to which members of the public had freely available access were under no continuing obligation to do what is required by law, that is, to take reasonable care to guard against harm arising from foreseeable risks of injury.

1. In my view, the need to identify and address risk is a positive obligation imposed on occupiers of premises used by members of the public by both the common law through the principles established in Wyong Shire Council v Shirt (1980) 146 CLR 40 and through statute in the provisions of the Civil Law (Wrongs) Act that I set out above. 

1. I therefore rejected this element of the defence.

Independent Contractors

1. Both defendants engaged architects and other consultants, as independent contractors, for the purposes of the design and construction of their respective developments.

1. They argued that the principles established in Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 applied so that they could not be held responsible for the negligence of those consultants.

1. There was a clear distinction between this case and the facts in Sweeney.  In that case it was clearly established that the negligence involved was that of the contractor in the performance of the task that he was contractually obliged to undertake.

1. In the current case, aside from referring to selected drawings and establishing that they were approved for the purposes of construction, the defendants produced no contract documents that dealt with the contractual obligations of their consultants, the identity of those consultants or the nature of the negligence alleged on the part of any particular consultant.

1. All the defendants could point to was the opinion of experts that the design and construction of their developments accorded with the requirements of the law.  There was no material before the court that established that any consultant was asked to consider risks associated with their developments or that they failed to identify any of those risks.

1. The second defendant faced the additional hurdle that, at the time of the construction of its development, the relevant risk was not present.  The risk in question was brought about by the subsequent development of the Miramar Apartments site.  The approved amendment that withdrew the requirement to fence wall A was irrelevant to the circumstances that arose when the adjoining site was developed.  The second defendant provided no evidence of action taken through any contractor to address any risk created on its property as a result of the development of the adjoining site.

1. I therefore rejected this element of the defence.

No Relevant Duty

1. This aspect of the defence was based on the argument that the defendants owed a duty of care only to persons who themselves acted reasonably and that the plaintiff failed to exercise reasonable care for his own safety in two respects.

1. The first was that he failed to note the obvious difference in the levels between the two properties.  Having inspected the site, I was not satisfied that a person who was not familiar with the first defendant’s premises would have appreciated that difference or that the level surface of the landscaped area in question extended only for a distance of 600 mm from the edge of the walkway.

1. Photographs of the first defendant’s property taken at the time of the incident depicted landscaping and foliage that was sufficiently substantial to obstruct the capacity to make out the difference in levels between the sites and the fall of the land a short distance from the edge of the walkway.

1. Further, a user of the walkway would not know that the substantial difference in levels was unguarded and provided no protection in the event of inadvertence.

1. The second basis for this argument depended upon authorities such as Cole v South Tweed Heads Rugby League Football Club (2007) 217 CLR 469 and Roads and Transport Authority of NSW v Dederer (2007) 234 CLR 330 as examples of circumstances in which defendants have been held not liable to persons who did not act reasonably.

1. Those cases, however, involved situations where it was held that there was no negligence on the part of the defendants.  In the case of Cole the defendant’s duty of care was found not to extend to the protection of the intoxicated plaintiff from harm after she left its premises.  In Dederer, the plaintiff deliberately took an obvious risk against which the High Court held that the defendant had no obligation to protect him.

1. I considered that this case was to be determined by reference to decisions such as March v Stramare (E & MH) Pty Ltd (1991) 171 CLR 506 that established the principle that having created a risk, a defendant was liable to persons harmed as a result and the extent to which the plaintiff’s conduct contributed to the harm suffered was to be dealt with by reference to the principles of contributory negligence.

1. I therefore rejected this element of the defence.

ISSUE 3 – Contributory Negligence

1. Had I accepted the plaintiff’s claim that he somehow lost his way and stumbled through the foliage and over the retaining walls, I would have been in no doubt that this was the result of his intoxicated condition.

1. The precise extent to which he was intoxicated was not known but those with the plaintiff immediately prior to the incident were consistent in their descriptions of the plaintiff’s condition as that of a person whose capacity to control his physical activities was significantly diminished.

1. Professor White logically explained the factor that supported his unchallenged opinion that the plaintiff also remained affected by heroin.

1. I concluded therefore that, had I accepted the plaintiff’s claim, I would have been satisfied that the cause of his stumbling away from the footpath was the extent to which he was intoxicated and that there was contributory negligence on his part.

1. I would not have accepted that the plaintiff’s contributory negligence was such that he should be held entirely responsible for the harm that he suffered.  Had the defendants addressed the unguarded difference in levels between their properties by the erection of some form of guard or fence, the plaintiff would have been protected from the risk of falling onto the second defendant’s car park.

1. In such circumstances, I would have assessed the plaintiff’s contributory negligence at 50%.

Apportionment

1. The risk to those using the first defendant’s site was created upon construction of Miramar Apartments and for that reason I considered that it had a greater degree of responsibility to address that risk.

1. This did not absolve the second defendant entirely from the responsibility to address any risk created by the development of the adjoining site.

1. I apportioned responsibility as between the defendants at 75% to the first defendant and 25% to the second defendant.

SUMMARY – Liability Issues

1. The facts did not support the plaintiff’s claim that he fell from the retaining walls on the defendants’ properties.  The plaintiff’s claim therefore failed.

1. The 3.5 metre difference in levels between the defendants’ properties presented a significant and foreseeable risk to persons using the Miramar Apartments site.  In failing to take steps to guard against this risk the defendants were negligent.

1. The defendants could not avoid liability by relying on principles relating to:

1       the absence of prior history of accident;

2       independent contractors; or

3       the unreasonable conduct of plaintiffs.

1. The plaintiff was also negligent.  His contributory negligence was assessed to 50%.

1. Liability between the defendants was apportioned as to 75% to the first defendant and as to 25% to the second defendant.

ISSUE 4 - Damages

General Damages

1. I have already listed the injuries suffered by the plaintiff at the time of the incident.

1. A burr hole was drilled into the plaintiff’s skull to relieve pressure and the mandible fracture was fixed with plates and screws and wiring.

1. The plaintiff was discharged from the Canberra Hospital on 11 April 2005.  At the time of discharge, the screws and wiring fixing the mandible fracture remained in place.  He was blind in his left eye and deaf in his left ear.  He was suffering from generalised headache and pain.

1. An infection developed in the mandible fracture and the plaintiff was re-admitted to the hospital on 13 May 2005 for treatment and discharged on 22 May 2005.  In the course of this admission, the jaw was re-wired and the bolts removed.  After about five weeks the wires were broken and the plaintiff said he cut them.  They were subsequently removed.

1. The plaintiff complained of continuing headaches since the accident.  He said he suffered back pain after one or two hours of gardening work and he had right shoulder pain for a period.  The symptoms affecting his left ear and left eye resolved after about six months.

1. He suffered two minor seizures more than one year after the incident for which he was prescribed Epilim.  He said he did not take this drug for any extensive period.  He was prescribed Valium for some years after the accident but he said he no longer used this medication.

1. He said that after the accident, he became depressed and his abuse of illicit substances continued and increased.  He underwent a period of rehabilitation at the Peppers Rehabilitation Centre at Wagga Wagga at the direction of the court but relapsed almost immediately upon completion of the six week course.  He said that at the time of the hearing he was taking a drug named as Suboxene, which he preferred to Methadone as a means of overcoming his addiction to heroin. 

1. He told the court that since the accident his memory was a bit stuffed (Transcript 52.28).  He had not driven a vehicle since the accident.  He relied upon his mother to drive him to various appointments.  He said he had become disorganised in his everyday life.  He said he spent his days sitting, lying around and watching television or hanging out with friends.  He occasionally visited his family and he ate mostly fast food. 

1. The plaintiff’s mother said that after the accident he was not the same.  She said he was listless and forgetful.  He was disorganised and unable to follow instructions.  She said she would not allow him to drive because of his confused state. 

1. The plaintiff’s sister said that the plaintiff had been a lot slower since the accident.  She said things did not register with him as quickly and he was forgetful.  The plaintiff’s sister acknowledged that she was aware that he continued to take heroin since the accident and that he was addicted to it. 

1. The plaintiff was examined by a number medico-legal experts.  He consistently reported to them symptoms of depression and headaches and back pain.  He reported the two seizures that he suffered, short term memory loss, poor motivation and fatigue. 

1. He was examined by neurological and neuropsychological experts who, in general, agreed within their areas of speciality.  Dr. Gordon Stuart was the only expert who did not accept that the plaintiff suffered traumatic brain injury.  This was against the weight of the medical opinion and neuropsychological testing.  I therefore disregarded his opinion.

1. Physical examination by the experts demonstrated that there were no abnormalities in the plaintiff’s cervical or lumbar spines and there was no apparent functional disability.  There appeared to be no neurological abnormalities.

1. Ms Ursula Jones and Dr. Wendy Roberts, neuropsychologists, agreed that testing established cognitive impairment with below average to average results in intellectual and memory functions and ability to learn new verbal information.  Speed of processing information was slower than expected. 

1. Dr. Brooder, Dr. Pascall and Dr. Roberts accepted that the plaintiff suffered a very severe head injury.  Dr. Brooder said damage was associated with the intracranial haemorrhage that affected his right frontal lobe.  He said this was an injury that could lead to memory problems and behavioural changes.

1. Dr. Pascall and Dr. Roberts both referred to hospital records of testing that indicated post traumatic and amnesia for a period of 17 days.  Both said that it was accepted that post traumatic amnesia of such a lengthy period indicated a severe head injury.

1. Dr. Pascall said that the heroin and alcohol that the plaintiff consumed immediately prior to his injury did not affect the duration of post traumatic amnesia and therefore it had to be accepted that there was significant cerebral trauma.

1. All the experts considered that the plaintiff would not improve further.

1. Having reached this point however, the dilemma that faced all of the medical experts was the extent to which the plaintiff’s cognitive impairment was the result of his injury or of his pre and post injury drug and alcohol abuse.

1. Dr. Casikar assessed them as equally responsible for his condition.  Dr. Pascall thought that most of the damage had been done by drugs and alcohol.  Ms Johns and Dr. Brooder offered no division of responsibility.  Dr Roberts suggested that she re-examine the plaintiff after he had been abstinent of drugs and medication for some months.  This opportunity was never made available to her.  She reported however that the severity of the head injury was such it was likely to result in cognitive impairment.

1. I accepted that post traumatic amnesia of 17 days indicated that the plaintiff suffered a serious head injury and that his immediate recovery period extended over a period of several months during which the plaintiff suffered from the physical consequences of his injury, being the healing of the fractures, the wiring of his jaw, the loss of sight in his left eye and loss of hearing in his left ear.

1. The plaintiff’s mother and sister provided evidence of the continued changes demonstrated by the plaintiff after his injury that rendered him disorganised and forgetful.  I accepted that these changes might also result from the plaintiff’s long term drug dependency but this evidence, coupled with the medical materials, persuaded me that the severity of the plaintiff’s injuries was such that in all probability he suffered a degree of cognitive impairment that was in part responsible for some of the deficiencies in intellectual functioning he now experienced.

1. I assessed his general damages at $130,000, allocating one half to past pain and suffering and one half to the future.

Loss of Income Earning Capacity

1. The plaintiff’s pre-accident working history has already been dealt with.  It was very poor.  At most he worked for two years out of the ten since he left school.  At worst, he worked for six months of that period.  He has not been employed since the date of his accident and he is currently in receipt of a disability pension.  The plaintiff said that he has not found any employment other than the gardening that caused his back problem.  He has not engaged in any study since the accident.  He said he would like to study photography, having taken photographs with his telephone.

1. The plaintiff’s mother said she could not think of any work he could do because he had difficulty following instructions.  She said that any study or retraining course would require him to be sufficiently organised to turn up. 

1. The plaintiff’s sister said she ran a small cleaning business.  Since the accident she had taken him with her but stopped doing so because she said he was a liability.  She said he could not follow instructions and he could not carry out the work she asked him to do.

1. All of the medical experts considered that the plaintiff was unemployable.  In addition to his cognitive impairments they referred to his poor work history, his criminal record and his substance abuse. 

1. There was no medical evidence of any physical constraint upon the plaintiff’s capacity for employment.  Ms Johns suggested that, if the plaintiff was successfully rehabilitated from his substance abuse, it might be possible for him to obtain work in supported employment with specialist supervision.

1. The plaintiff claimed past income loss at one half of the income he earned in the 2005 financial year.  This claim overlooked the evidence that the plaintiff worked between one and two years of the 10 years since leaving school, including the period of the three and a half year relationship.  His employment history indicated that he lacked the capacity to retain employment on a long term basis and that his likely future income earning capacity was limited to about 15% of that of a person employed on a full time basis.

1. On this basis, the plaintiff’s income earning capacity at the time of his injury, even if assessed by reference to published figures for average weekly earnings, was about $120 per week.  I accepted the contention of the first defendant that the plaintiff was never in a position where he earned income in an amount equal to average weekly earnings.  I also took into account the evidence that other aspects of the plaintiff’s history contributed to his unemployability.

1. Doing the best I could in such circumstances, I assessed his income loss as a result of the injuries suffered in the incident, averaged over the period from the time of his injury, at $100 per week.

1. I assessed the plaintiff’s past income loss at $36,400, allowing a further $1,192 for superannuation.

1. I applied the standard discount of 15% for contingencies and assessed his future income loss at $90,032, allowing a further $8,103 for superannuation.

Domestic Care

1. At the time of the hearing, the plaintiff lived alone in a Government provided apartment.  He said he tried to undertake housework but claimed that he was too disorganised to keep the apartment clean.  He said he rarely cooked for himself because he had been on heroin and a lot of the time he was disorganised in the spending of his money.  He said he did his own washing until his washing machine broke down.

1. He agreed that there was no physical or mental impairment that prevented him from looking after himself or from preparing meals, shopping, attending to banking and cleaning.  He said that with the qualification that he would do it when he became more organised. 

1. He agreed that he probably did not need domestic care or assistance. 

1. The plaintiff’s mother said that since the accident she had assisted in cleaning and tidying the plaintiff’s apartment, getting him to medical appointments and generally organising him.  She said he became muddled with dates and he probably would not know on which day he was supposed to go to various appointments. 

1. She said she helped the plaintiff by providing him with food, doing his washing, cleaning his bathroom and tidying his kitchen.  She was not cross examined on this evidence.  The plaintiff’s sister said that the plaintiff could clean his home but at times she took him food and helped him clean up the kitchen.  She said that she did this about twice a month. 

1. Most of the medical experts thought that the provision of assistance was unnecessary from a physical point of view.  Again they questioned the extent of the need that could be attributed to the head injury rather than the plaintiff’s substance abuse.

1. I accepted that for the 12 month period following his injury the plaintiff required assistance and that it was provided voluntarily by his family, mainly his mother.  I averaged the allowance for this service at 10 hours per week for the initial 12 months and allowed $13,000. 

1. I was satisfied that after this period the plaintiff’s injuries generated a need for continued assistance in domestic and personal management.  I considered that one hour per week was sufficient to meet this need.

1. I therefore allowed the sum of $7,800 for the remaining six years of past care.  I allowed the sum of $32,800 for future care.

Out of pocket expenses

1. Past out of pocket expenses were agreed in the sum of $1,494.40.

1. It was apparent that, since discharge from hospital, the plaintiff had little medical attention directed at the treatment of his injuries.  He said he had not seen many doctors because he did not like to go to doctors.  He said that he was not taking any significant medication.

1. Medical records indicated that the plaintiff was treated with Valium for a period.  He denied that this treatment was related to his drug use.  He said it was because he had been having problems sleeping after the accident.

1. All of the medical experts referred to the urgent need for rehabilitation for the plaintiff’s substance abuse problems.  The plaintiff, however, said he did not intend to commit to further rehabilitation.

1. Dr. Brooder recommended referral for brain injury management and the provision of vocational assistance.  The plaintiff claimed $15,000 to $20,000 for the cost of these services.

1. Regretfully, I considered that the provision of these services was likely to be of little benefit to the plaintiff.  He expressed disinterest in medical treatment and rehabilitation.  The medical experts agreed that the plaintiff’s recovery from his brain injury was unlikely to progress further.

1. In the circumstances, I made no allowance for future medical expenses.

ORDERS

1. Verdict and judgment for the defendants.

1. The plaintiff is to pay the defendants’ costs of the proceedings.  This order is suspended to allow any application for a special costs order to be listed in the week commencing 22 October 2012.

1. The exhibits will be retained for 28 days.

1. My reasons are published.

   I certify that the preceding two hundred and forty six (246) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.

   Associate:

   Date:      2012

Counsel for the plaintiff:  Mr F.J. Purnell SC and Mr Shillington
Solicitor for the plaintiff:  Blumers Personal Injury Lawyers
Counsel for the first defendant:  Mr Kelly
Solicitor for the first defendant:  Bradley Allen Lawyers
Counsel for the second defendant:                Mr Watson SC and Mr A Muller
Solicitor for the second defendant:               Moray & Agnew
Date of hearing:  17 July 2012
Date of judgment:  25 October 2012