Foti v Biordi

[2021] NSWDC 496

District Court

New South Wales

Medium Neutral Citation:

Foti v Biordi [2021] NSWDC 496

Hearing dates:

8-10 September 2021

Date of orders:

16 September 2021

Decision date:

16 September 2021

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Order:

(1)   Judgment for the defendants.

(2)   Costs reserved, with liberty to apply.

(3)   Exhibits retained until further order.

Catchwords:

TORT – personal injury – trip and fall

Legislation Cited:

ss 5B, 5C, 5D and 5S of the Civil Liability Act 2002 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 42.35

Cases Cited:

Angel v Hawkesbury City Council [2008] NSWCA 130; 2008 ATR 81-955

Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146

Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443

Bunnings Group Ltd v Giudice [2018] NSWCA 144

Container Terminals Australia v Huseyin [2008] NSWCA 320

Davis v Council of the City of Wagga Wagga [2004] NSWCA 34

Dovuro v Wilkins (2003) 215 CLR 317; [2003] HCA 51

Ferguson v McDonalds [2005] NSWCA 401

Gulic v O'Neill [2011] NSWCA 361

Hill v Richards [2011] NSWCA 291

Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366

Mason v Demasi [2009] NSWCA 227

Mastronardi v State of New South Wales [2009] NSWCA 270

Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95

Miller v Galderisi [2009] NSWCA 353

Prouten v Chapman [2021] NSWCA 207

Sibraa v Brown [2012] NSWCA 328

Tchen v Nominal Defendant [2010] NSWCA 245

Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198

Category:

Principal judgment

Parties:

Plaintiff:
Mr Nazzareno Foti

Defendants:
First Defendant: Mr Mario Biordi
Second Defendant: Ms Rosaria Biordi

Representation:

Counsel:
Plaintiff: Mr C Stewart
Defendants: Mr B Hull

Solicitors:
Plaintiff: MacElbing Mednis & Associates
Defendants: Holman Webb Lawyers

File Number(s):

2020/00260839

Judgment

The plaintiff’s claim

1. The plaintiff brings proceedings for damages after he suffered an inversion injury to his right ankle whilst walking beside the fence on premises he rented from the defendants.

2. The statement of claim, at paragraphs 2, 3 and 8, sets out the circumstances of injury and the breach of duty of care as follows:

“2. On or about 10 September 2017, at circa 11.30 p.m., the Plaintiff was returning to the premises when he stepped into a hole adjacent to his premises formed by the excavation for, and insertion of, a concrete base whereupon he lost his footing and fell, suffering injury.

3. The area of the fall was unlit and so was, in the circumstances, a hidden hazard. The Plaintiff was not affected by alcohol as he does not drink it.

…

8. The Defendants breached their duty of care to the Plaintiff in that they:

(a) Had created uneven ground by undertaking some construction work that caused the area in which the Plaintiff fell to become dangerous and hazardous to people walking about it;

b) Failed to install adequate lighting which could be used by the Plaintiff and others to safely access that area without the hidden hazard that the lack of lighting created …”

3. The circumstances of when, where and how the accident occurred were all in contest. The defendants rely upon ss 5B, 5C and 5D of the Civil Liability Act 2002 (NSW) (“the Act”) and additionally plead contributory negligence (s 5S).

4. Issues of duty of care were agreed by the parties to be those of a landlord to a tenant.

The evidence concerning the plaintiff’s fall

5. The plaintiff leased a “granny flat” on rural property owned by the defendants for $600 per week. It was part of a bigger property containing one or two other dwellings and housing farm animals. There was a gravel driveway leading from the road to the rented flat and the other buildings.

6. The rented premises consisted of a bedsit (or “granny”) flat with a separate bathroom. Outside the flat on one side, there was a concrete slab for parking, big enough for two cars. On the other side, another building shared a common wall. There was a colourbond fence along the property and a small garden.

7. At the time the plaintiff moved into the granny flat, the colourbond fence running past his flat included a pair of lockable gates. However, the unchallenged evidence of Mr Biondi (the first defendant) is that, some months after the plaintiff moved in, he removed the gates, as they had been damaged by the plaintiff and his girlfriend driving in to park. To accommodate their ease of access to the parking area beside the flat, the gates were not only taken off but remained off for the duration of the plaintiff’s tenancy. This meant that there was an open space in the colourbond fence which permitted persons driving to the property to drive straight in without having to stop outside to unlock a gate.

8. At the edge of the colourbond fence, on the left side of fence outside the granny flat, there was a drain inside a culvert. This is the “hole” where the plaintiff says he fell.

9. The plaintiff’s evidence about what was in place at the asserted accident site at the time of his accident was inconsistent. His case was opened on the basis that there was a concrete slab but he acknowledged this was wrong. He then agreed that there was a metal plate or grate over the culvert (T 64 - 65), but, when asked why he would fall on a metal grate, asserted that this grate (which he said weighed either 15 or 50 kilos: T 58, T 64) had been removed by Mr Biondi, possibly because cats might get in it (T 65). Mr Stewart’s closing submissions were to the effect that there must have been some unevenness between the grate and the gravel pathway for the plaintiff to have fallen. However, the degree to which the grate was at the same level as the gravel road (as opposed to being above or below it, or otherwise uneven) has not been measured and the only evidence of what it looked like is a grainy photo (CB:39) which gives no indication as to the level of unevenness (if any).

10. The plaintiff, in chief, said that the accident occurred on 11 September 2017, at or shortly after 11 pm, when he returned home from a night spent at the Marconi Club. Arriving at the location of his granny flat, he parked his car on the side of the gravel road leading to his rental property and proceeded to walk along this private road to his home, approximately 18 - 20 metres away (T 12). As it was dark and there was no lighting along the roadway, he could not see his way, so he felt his way along with one hand on the fence, before coming to the locked gates in the middle. As he edged his way along the colourbond fence with his left side, his right foot was caught on either a hole or uneven ground in the spot next to the fence and he fell. He managed to open the gate and go into the flat and, on the afternoon of the following day, his girlfriend Mrs Penny Ingram took him to the hospital (T 16).

11. However, the plaintiff agreed that the gates had in fact been removed before he was injured (T 56, T 64). When asked why, in those circumstances he had not driven up to park beside his front door, he said that the first defendant had asked him not to park there because it stained the concrete slab (T 68). At other times, he insisted that the gates were still there and that he had had to unlock them after his injury (T 16, 69). As the transcript numbering shows, the plaintiff vacillated between these two descriptions during his cross-examination.

12. The first defendant, who kept chickens, rabbits and pigeons on the property of which the granny flat formed part, visited the premises almost daily to feed them. He confirmed the gates had been removed several months after the plaintiff’s tenancy commenced and was not cross-examined either about the date of removal of the gates or about asking the plaintiff not to park on the concrete parking slab. The first defendant said that he observed the plaintiff or his girlfriend’s parked cars many times, and that the place where they parked was on the concrete slab adjoining the front door of the granny flat. This description was not challenged in cross-examination.

13. The plaintiff said in his evidence in chief that he was taken to Fairfield Hospital on the following day (12 September 2017) by his girlfriend, where he was given a cam boot and later released. In cross-examination, the plaintiff denied being taken to hospital by ambulance on the afternoon of 11 September 2017. He denied telling the ambulance officers, the triage nurse and the Fairfield Hospital staff on the three separate dates and time that they treated him, that he had rolled his ankle on Friday 8 September 2017 while getting down from his vehicle. On 28 September 2017, he told another doctor at Fairfield Hospital that he had a fall in a “gutter” with a “rough surface” and that he wanted to “start an insurance claim” against his landlords.

14. The plaintiff sustained a distal fibular fracture (Weber 8) and his treatment consisted of a cam boot, rest and analgesics. He continued to wear the cam boot for six weeks. X-rays performed on 8 November 2017 and 15 January 2018 showed the bones were in alignment. By 14 November 2017 his general practitioner, Dr Ochs, described him as “walking w/o boot” and “normal gait” (CB:77). However, Dr Ochs noted that the plaintiff had “multiple issues” in terms of health problems, listing ten other significant medical issues requiring consideration in her consultation with him of 14 November 2017. The plaintiff was cross-examined about these and either denied them (such as chronic back pain) or minimised them.

15. The plaintiff complained of ongoing pain with mobility up until April 2019 (CB:204) and took analgesics over this period. Thereafter he did not seek further medical assistance about his ankle for about a year.

The issues in the proceedings

16. The issues in the proceedings are:

1. The mechanism, nature and cause of the plaintiff’s fall.

2. The knowledge of the plaintiff and the defendants concerning the safety of the area where the plaintiff stated he had fallen, including foreseeability of risk and obvious risk.

3. Whether the plaintiff has discharged the onus of establishing that he fell in the circumstances he claimed had occurred.

4. Assessment of damages. The plaintiff’s non-economic loss has been more or less agreed between the parties, in that the defendants accept the assessment set out by Dr Lee in his medico-legal report for the plaintiff dated 20 May 2019 (CB: 114 – 119), namely 18%.

The plaintiff’s evidence and credit

17. The plaintiff’s credit was an important factor in these proceedings, as his account of how the accident happened has changed on at least four occasions. These occasions are:

1. His account of how the accident happened to the ambulance officers and triage nurse when he was taken to Fairfield Hospital on 11 September 2017. His explanation for the accounts of the ambulance and hospital staff was that they were lying and that he had not been taken to hospital by ambulance at all.

2. His initial claim of construction work and a concrete base in the hole (which was the case opened on his behalf), which was abandoned during the evidence.

3. His account to a doctor at Fairfield Hospital of having tripped in a “gutter” on 28 September 2017.

4. His description, during his evidence, of having slipped on the uneven surface between a grate and the gravel path and/or in a hole caused by the removal of that grate.

18. The plaintiff’s credit was challenged on the following bases:

1. The plaintiff’s evidence about where, when and how he fell was not merely inconsistent but implausible, given the removal of the gates to enable him to drive in onto the property and the placement of the grate, which he could not have struck with his right foot as claimed.

2. The plaintiff’s evidence of injury and disabilities was not only inconsistent but exaggerated. The plaintiff minimised the constellation of health problems he had (which included diabetes, cancer, chronic lower back pain and testicular problems), for some of which (but not for his ankle problems) he had been assessed after the accident by ACAT as requiring home help. As to home care, he asserted that his girlfriend had to provide home care for him six to seven hours a day for five to six times a week as a result of his ankle injury (T 27). However, the plaintiff’s girlfriend’s evidence was that she did less for him after the accident than before (T 99 – 103) and that, before the accident, he had been a very sick man, and still was.

3. Although the plaintiff had resided in Australia for 53 of his 74 years, he had required the services of an interpreter for his evidence. This is relevant as he sought to undermine the reliability of hospital and ambulance records by claiming that these errors arose because of his English difficulties. The defendants submit that the plaintiff is well able to speak English and to understand questions in English and noted his many responses to questions before these had been translated.

19. These submissions are relevant to determination of the disputed issues of fact in dispute between the parties. The main issue is whether the plaintiff fell at the spot he indicated and, whether or not he in fact parked his vehicle next to his flat, whether or not he rolled his ankle getting out of the vehicle in the manner described by the ambulance officers and triage nurse. Why, if the plaintiff was able to drive in to the property and park his car next to his front door, would he be walking 18 – 20 metres along a gravel path in the dark, feeling his way along the fence?

20. The plaintiff was a poor witness who repeatedly had to be asked to answer the question. The plaintiff’s evidence not only contradicted factual material set out in medical records but, was internally contradictory.

When did the plaintiff fall and how did he get to hospital?

21. The following dates for the accident are referred to in evidence for the plaintiff:

1. 10 September 2017 (statement of claim);

2. 11 September 2017 (the plaintiff’s evidence);

3. Friday 8 September 2017 (ambulance report prepared on 11 September 2017, after ambulance staff came to the plaintiff’s home);

4. 17 September 2017 (the plaintiff’s girlfriend’s evidence).

22. A difference in the date of the accident is a minor matter. More serious is the plaintiff’s denial that he was taken to the hospital by ambulance at all (T 41). The rationale for this denial appears to be, from my observation of the plaintiff’s general response to questions, that, by denying there was an ambulance, the ambulance notes can be disregarded, which is effectively what he said at T 70:

“Q. Yes, all right. I want to make it perfectly clear to you that what I suggest to you is that you did not injure your right foot by stepping into a hole. Rather, as you told several people on many occasions you injured your right foot when you got out of the driver's sea of your Landcruiser Toyota, that's what happened, isn't it?

A. INTERPRETER: Who is this person who saw me at midnight doing that?

HER HONOUR

Q. What Mr Hull is referring to is what you told the people at the hospital and the ambulance driver?

A. INTERPRETER: That is not true. The ambulance does not exist. What ambulance?” (T 70)

23. The plaintiff became angry when it was put to him that an ambulance took him to the hospital, saying the ambulance officers and the defendants were “lying” (T 46). The fact that he associates the defendants with the ambulance officers suggests his denial of the ambulance coming to his home enables him to deny what is written in the ambulance report.

24. Dr Och’s notes for her 28 September 2017 with the plaintiff record that he was brought in by ambulance to the hospital and kept overnight. Mr Hull repeatedly asked the plaintiff if he told the doctor this (T 47- 48) but he did not answer the question, eventually saying “Jesus Christ did not take me to the hospital, Penny did” (T 48).

25. The plaintiff’s girlfriend was of limited assistance on this issue, as she says that she drove him to the doctor and then to the hospital on 17 September 2017:

“STEWART: Yes, she did, your Honour.

Q. What did you do that day?

A. 17?

Q. The 11th of--

A. I take Nemo and ask Nemo--

Q. --September 17.

A. Yes, September 17, I took Nemo to, to GP, to doctor.” (T 94)

26. Ms Ingram described what happened to the plaintiff after she drove him first to the doctor and then to the hospital:

“Q. How long was he at the doctors?

A. Three hours, we were waiting for two, two hours, yes.

Q. Did you take him anywhere after that?

A. And then yeah after we take him to the Fairfield Hospital then we Kristena.

HER HONOUR

Q. I'm sorry, what did you say about Kristena?

A. His daughter - the doctor in the hospital.

Q. So the doctor in the hospital was Dr Kristena, is that what you said?

A. Yes.

STEWART

Q. Do you remember how long he was there or not?

A. We were waiting three hours.

Q. And then how long did he take to be treated, if you know?

A. About half an hour, half an hour.

Q. Right.

A. Yeah, half an hour.

Q. Then where did you take him after that?

A. And then after I take him to Marconi Club.

HER HONOUR

Q. Marconi Club?

A. Yeah.

Q. Thank you.

STEWART

Q. How long was he there?

A. ..(Not transcribable)..yeah, the time I'm, I'm going back to work, but he, he wait there.

Q. Right.

A. Yeah.

Q. So you didn't take him home?

A. No, I didn't take him home.

Q. Did he go there in a boot--

A. Yeah.

Q. --an orthopaedic boot?

A. Yes. (T 94 – 95)”

The description of the plaintiff’s accident in ambulance and hospital records

27. The Ambulance Electronic Medical Record dated 11 September 2017 stated:

“CT 72 YO M WITH ANKLE AND LOWER LEG PAIN. OA PT FOUND LAYING DOWN IN BED AND WAS ALERT, WELL PERFUSED AND ORIENTATED. PT STATE ROLLED ANKLE AND FELL ON FRIDAY NIGHT, DENIES HEARING A CRACK OR POP AT TIME. PT TRIED RESTING ANKLE AND PLACING ICE ON IT WITH NIL EFFECT. PT STATE'S PAIN HAS SLOWLY BEEN GETTING WORSE IN THE LAST 1/7. OE PT AFEBRILE, HAEMODYNAMICALLT STABLE, NIL CHEST PAIN, SOB, ABDO PAIN OR RECENT GU/Gl SYMPTOMS. PT HAS PAIN TO ANKLE AND LOWER LEG, WITH PITTING OEIDEMA, REDNESS, PAIN AND WARMTH TO THE LOWERR RIGHT LEG AND ANKLE, PT HAD GOOD PERIPHERAL PULSES AND CAP REFILL NIL

SYMPTOMS ON THE LEFT LEG. PT HAS NO HISTORY OF PERIPHAL OEDEMA OR CELLULITIS. PT STATES PAIN IS SHARP IN NATURE. PT WAS OFFERED PAIN RELIEF ON NUMEROUS OCCASIONS HOWEVER PT REFUSED. PT HAD PARACETAMOL AT 1600. PT REMAINED ALERT AND WELL PERFUSED

ENROUTE AND ON ARRIVAL AT HOSPITAL. DELAYS AT FAIRFIELD HOSPITAL WITH NO BED. DOCTOR ADVISED THAT PT NOT FIT TO BE PLACED IN THE WAITING ROOM DUE TO POSSIBILITY OF COMPARTMENT SYNDROME (CB 471)”

28. At the hospital, the plaintiff was seen by Registered Nurse Ms Lilly Money on 11 September 2021 at 17:55pm, who noted the following:

“Had an inversion injury to R ankle 2days ago while getting down from the vehicle (CB 474)”

29. There was no information in the Ambulance Report about “getting down from the vehicle”, so this fresh information must have come from the plaintiff.

30. The plaintiff attended outpatients, and a progress note for Allied Health from Fairfield Hospital dated 26 September 2017 reported the cause of the accident as follows:

“Referral received from ASET PT on 14 August 2017[*] for FIT f/u post [presentation] to ED with # (R) distal fibula.

…

72 y.o Italian speaking male, twisted ankle when getting out of car, unable to put weight on LL, increased swelling and (P) presented to ED. # lateral malleolus. Camboot applied and pt d/c. (CB 174)”

31. It should be noted that the date “14 August 2017” (which I have emphasized with an asterisk) is obviously incorrect. Mr Stewart relies on this error to demonstrate that the hospital records are unreliable. I agree that hospital records can be unreliable and have errors, but this does not mean that the consistent description of the plaintiff’s fall in these three documents is an error.

32. The plaintiff told a different story to Dr Kristen Ochs, as she notes from her notes of interview in the GP Unit of Fairfield Hospital dated 28 September 2017:

“Italian man with known R ankle fracture.

11/9/17 - had fall in gutter, rough surface, mechanical trip. Occurred at his rental property (granny flat) on a farm in Kemps Creek. Twisted R ankle/inversion injury. Pain and swelling +++ --> ambulance _ _ .

Brought to FFH ED - kept in overnight then d/c home with physio phone follow up but no services.” (CB 86-86)

33. I am prepared to assume that this is a reference to the grate over the drain beside the colourbond fence. However, Mr Hull points out that the plaintiff also told Dr Ochs that he wanted to sue his landlord, which she notes as follows:

“3. Pt wants to start insurance claim vs landlord.” (CB 86-86)

34. Mr Hull submits that this major change in the description of the circumstances of the accident is attributable to the plaintiff’s decision to bring proceedings for damages.

35. The case history notes from Fairfield Hospital Emergency Department date 28 September 2017 repeat the version of events given by the triage nurse and ambulance staff, although it is likely to be derived from that material:

“72 yo male presents to the ED with increased swelling right lower limb.

Recent presentation (11/9) with right distal fibular fracture (Weber B)

Inversion injury after getting out of car. Placed into CAM boot (CB 120)”

36. There are also additional Progress/Clinical Notes dated 28 September 2017 at 13:30pm but these notes do not refer to the mechanics of the accident:

“Nursing: Pt presented to RD with mild swelling to lower limb, referred by GP. R Angle post mechanical fall on 11 September 2017. Lives alone, acopeic, non compliant with camp boot (CB 182)”

37. Finally, there is the admission summary from Fairfield Hospital dated 16 April 2019:

“Ankle pain (Discharge)

Summary of Progress

74yo M presents with right ankle pain

September 2017- distal fibular fracture (Weber 8) sustained when getting out of car, treated with camboot (CB 204)”

The reliability of medical records

38. The medical evidence setting out the circumstances of the injury was challenged on the following bases:

1. Caution must be exercised with reports prepared by busy hospital staff whose focus is on treatment rather than accurately recording how the accident happened. Hospitals and paramedics can, and do, make mistakes, as the 14 August 2017 date in the entry referred to above indicates; clearly that is a wrong date.

2. The likelihood was that the authors of these documents were simply copying from other sources rather than asking the plaintiff how the accident occurred.

3. The plaintiff’s English is poor and as he had no translator the likelihood of his being misunderstood, or misunderstanding the question, was high.

39. As to the first of these, inconsistencies in accounts of the circumstances of injury, particularly in relation to histories given to medical practitioners, are common and the Court of Appeal has warned trial judges not to be unduly concerned by apparent inconsistencies: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; Ferguson v McDonalds [2005] NSWCA 401; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366; Container Terminals Australia v Huseyin [2008] NSWCA 320; Mason v Demasi [2009] NSWCA 227; Mastronardi v State of New South Wales [2009] NSWCA 270; Tchen v Nominal Defendant [2010] NSWCA 245; Hill v Richards [2011] NSWCA 291; Gulic v O'Neill [2011] NSWCA 361. I accept that caution must be exercised when determining the reliability of accounts of an accident, particularly where the person injured is elderly and does not have English as a first language.

40. However, the mechanics of how an accident happened form an important part of the treatment process. Although hospital and paramedic staff are busy people and can make mistakes in entries such as dates, they do not skimp time on details such as how the injury occurred and what the symptoms complained of are. Ascertaining how the accident happened is a central part of diagnosis and treatment.

41. While the Discharge Summary was clearly prepared from other documents, the source of the information provided to the ambulance officers and triage nurse is clearly the plaintiff himself. These accounts were contemporaneous with the accident and can be regarded as reliable reports of what the plaintiff said.

42. The plaintiff did tell Dr Ochs, the GP at the hospital, on 28 September 2017 that he fell on a “gutter”, but in circumstances where he was considering bringing a claim. The difficulty is, however, that his description of the trip hazard changed again, namely to a hole with a concrete base, a hole covered with a grate and (when challenged as to why he would trip on a grate) an open hole in the ground.

43. I am satisfied that the plaintiff did tell the ambulance officers and triage nurse that he fell while he was getting out of his car. The fact that he did so is, however, only one factor in terms of establishing what occurred. Evidence about the presence (or absence) of a grate, an ungrated hole and gates in the fence, as well as the mechanics of the plaintiff’s fall, are of equal if not greater importance in terms of establishing what happened.

Was there a hole?

44. The case was opened for the plaintiff on the basis of him “placing his right foot into a cavity or a hole as he called it” (T 4). A photograph was tendered of a “concrete slab” (T 15). The plaintiff said “I put my leg there and I got damage to my leg” and that it was very dark and “I fall down” (T 15). No explanation of what aspect of the concrete slab caused him to fall was given.

45. The plaintiff was cross-examined about the description of a concrete slab given in the statement of claim and initially he denied that there was a metal plate:

“Q. Which is exactly three years after the Friday night, 8 September 2017. Now in that statement of claim in paragraph 2, it says that you were returning to the premises when you stepped into a hole adjacent to your premises formed by an excavation for and insertion of a concrete base. Now there is no hole formed by an excavation or the insertion of a concrete base there, is there?

A. INTERPRETER: There was a hole but they mend to the concrete on it. Now they’ve done the driveway nicely but not at the time.

Q. What I am suggesting to you is that you knew on 8 September 2017 that that metal plate was there, covering a hole which was a drain. You knew that then didn’t you?

A. INTERPRETER: Yeah the metal plate was not there.” (T 59)

46. He was then shown photographs of the grate and admitted that there was no concrete slab:

“Q. What I want to suggest to you is that that is not a concrete slab. It is a metal plate weighing about 50 kilograms?

A. INTERPRETER: Yes.

Q. Do you agree with me?

A. INTERPRETER: Yes I admit it.” (T 58)

47. When it was put to him that he could not have put his foot into a hole if it was covered by a heavy grate, he attempted to withdraw this admission:

“Q. Mr Foti, the transcript records your answer a ,"I admit it." I thought I heard you say in English, "I remember it now." Is that what you said yesterday when I put to you that there was a metal cover weighing about 50 kilograms? Didn't you say, "I remember it now?"

A. INTERPRETER: Yes.” (T 64)

Was the grate removed?

48. The plaintiff acknowledged that there was a grate next to the colourbond fence when he moved in, but his descriptions of when and why the grate was removed, and for how long, varied greatly.

49. First, there was the question of why the grate would have been removed in the first place. The description of work on the premises (as pleaded in the statement of claim) was never mentioned. Instead, when asked why the defendants would have removed the grate over the drain, the plaintiff first suggested that Mr Biordi had removed the plate because cats might get into it (T 65 line 46).

50. Then there was the question of when the grate was removed. The plaintiff said that the metal grate was removed at about the same time as the gates in the fence, which he said was within a few months of his commencing to live there, and that there was no grate after that time:

“Q. So we know you've moved in there in March of 2016. Was the metal plate removed at about the same time as Mr Biordi removed the gates?

A. INTERPRETER: I don't remember exactly, but it is possible that Mr Biordi was at times moving the metal plate - you know - to clean the drain. And it wasn't 50 kilo. It couldn't have been that heavy.

Q. Mr Foti, we are suffering the same problem we had yesterday. You're not listening to the question. My question was did Mr Biordi remove the metal plate because Penny was driving on it at the same time as he removed the gate because Penny was driving into the gates?

A. INTERPRETER: That's possible, but also in May when he, he was moving the metal plate over to clean the drain.

Q. So you think that it's possible that the metal plate was removed by Mr Biordi at the same time as he removed the gates. Is that what you're saying today?

A. INTERPRETER: It's likely, yes, and..(not transcribable)..no, I do not remember.

Q. Well, Mr Foti, if he had removed it at the same time as he removed the gates, then that would have been months after you moved in. That's right, isn't it? That's when he removed the metal gates: months after you moved in.

A. INTERPRETER: Yes.

Q. So, if that were the case, Mr Foti, you would have known for more than 12 months that there was a hole next to the Colorbond fencing. That's right, isn't it?

A. INTERPRETER: That is not true to me. I - when I was driving ..(not transcribable)..I was trying to avoid driving over the metal gate [sic] and - but, most of the time, Penny was doing the driving. I don't know whether the metal gate [sic] was there or not.” (T 66)

51. Mr Hull put to the plaintiff:

“Let me put it to you this way then, Mr Foti. Whether or not the metal plate was covering the hole or not, you knew for more than 12 months that at the base of the left-hand side of the Colorbond fencing there was either a hole or a metal plate. You knew that for more than 12 months, didn't you?

A. INTERPRETER: The hole was there - I do not know, I cannot say when the metal plate was there or when Mr Biordi would remove it to clean the drain.

Q. Mr Foti the point I'm making to you, the question I'm asking you is this: you knew for more than 12 months, possibly as long as 18 months, you knew that at the base of the Colorbond fencing there was either a hole or a metal plate. That's right, isn't it?

A. INTERPRETER: Yes.

Q. And you knew for 18 months that there was no light shining on the area where the gates used to be. You knew that from the time you moved in, didn't you?

A. INTERPRETER: No, no lights.” (T 66 – 67)

52. However, according to Mr Biordi the metal plate had, by reference to when he first purchased the property “been there all the time” (T107 line 43). Apart from moving it to lay bitumen in 2021, he had never removed the metal plate since he bought the property (T108 line 4). He was not cross-examined about this.

53. The plaintiff’s grainy photograph is of no assistance in determining what was present and I decline to draw any inferences from it: Angel v Hawkesbury City Council [2008] NSWCA 130; 2008 ATR 81-955. The photographs provided by the defendants (especially CB:468) are clearer, but do not demonstrate any kind of hole of the type described by the plaintiff.

54. Mr Biordi was not cross-examined about removing the grate for cleaning, or because of cats, or for any other reason.

55. I am satisfied that there was a heavy grate in place, and not a hole, and that the plaintiff was well aware of its presence at the time of his fall.

When were the gates in the fence removed?

56. The plaintiff initially agreed that the first defendant, Mr Biordi, had removed the gates some months after he first started to live at the premises:

Q. Mr Foti, you agreed with me yesterday that because Penny had run into the gates that led into the concrete drive outside the granny flat, that Mr Biordi had removed the gates some months after you first started to live there, do you remember that?

A. INTERPRETER: Yes.

57. However, when it became apparent that the removal of the gates to permit easy access to the premises made his account of walking along in the dark implausible, he said that although the gates had been removed, Mr Biordi was not happy with him parking there because of stains on the concrete which Mr Biordi wanted him to wash down:

“Q. I want to suggest to you that your usual practice at that time was to park your Toyota Landcruiser inside the Colorbond fencing near your front door to the granny flat, that's where you normally parked it wasn't it?

A. INTERPRETER: I used to go, I used to go - yes, I used to drive in with the car and park it right next to the, to the front door, the door to the, to the house. But Mr Biordi not happy about that and kept telling me to park next to the shed outside.

Q. You see, why would Mr Biordi take the gates off to enable you and Penny to drive into the concrete next to your front door to the granny flat if he didn't want you to park there? Why would he—

A. INTERPRETER: He removed part of the, of the gate to make it easier to get in but he was very unhappy, was never happy with Penny and Penny parking there and ordered her to park next to the shed. He wasn't happy that we drive the car in because it would stain the concrete and he wanted to hose the..(not transcribable)..but allowed us to, to clean up and wash.” (T 69 – 70)

[Emphasis added]

58. The key words are that Mr Biordi removed the gate “to make it easier to get in”. The fact that Mr Biordi asked them to hose the concrete and “allowed” the plaintiff and his girlfriend to do so as part of their use of it merely confirms that they were in fact using the slab, albeit with reminders from Mr Biordi to clean up any stains from the vehicles (which would have included the plaintiff’s girlfriend’s car when she came to visit him, which she did very frequently).

59. The difficulty for the plaintiff was how to explain why he was feeling his way along the colourbond fence to unlock the gate if the gates had been removed months beforehand:

“Q. Well, you've heard the question because I've repeated it twice. I suggest that your answer was, "But the gate is the same as the fence itself, so I was following with my hands to get to - following from fence to gate, and that's when I fell." Do you remember that question in that way yesterday, do you remember that, yes or no?

A. INTERPRETER: Yes.

Q. So the first thing about that answer is there was no gate there, so how could you be following with your hands along the fence to get to the gate if the gat wasn't there?

A. INTERPRETER: Only mean that the gate was not there. The gate was there most of the time, all this time--

Q. You agreed with me yesterday that Mr Biordi removed the gate some months after you moved in, because Penny had hit the gate?

A. INTERPRETER: When they were - Penny was not hitting the gate, she hit the, the post and maybe dented a bit of Colorbond.

Q. You told the Court yesterday that Mr Biordi removed the gates some months after you moved in because Penny had hit the gates. Is that true what you told the Court yesterday or not?

A. INTERPRETER: I don't remember.” (T 68)

60. I am satisfied that Mr Biordi removed the gates for ease of access so that the plaintiff, who regularly went out in the evenings to play cards at the Marconi Club, could get into and out of his flat at night. That means that there was no gate to unlock on the night of the accident.

The mechanics of the plaintiff’s fall

61. The next difficulty for the plaintiff is how, when he was going from left to right, following the fence with his hands to the gate, he came to put his right foot, rather than his left, in a grate which was right beside the fence on the left hand side.

62. The plaintiff’s initial description was of walking along feeling his way on the Colourbond fence for the 18 – 20 metres that he had to walk. That description of walking along the left side and coming to the area of the fall was difficult to reconcile with an injury to the right leg. Mr Hull asked the plaintiff:

“Q. When the gates were there, they were the same width each. The left hand side gate was the same width as the right-hand side gate. That’s right isn’t it?

A. INTERPRETER: Yes.

Q. So to open the gates, you would have to walk into the middle of the opening that’s shown in the photograph at 468?

A. INTERPRETER: Yes but it was dark, I wouldn’t have seen whether it was in the middle or side. Q. If you were walking towards the middle of the gap between the Colorbond fencing shown in 468 how could your right leg possibly have gone through a hole that’s in the left-hand corner of the area that we’re talking about?

A. INTERPRETER: It’s not in lighting, I didn’t see where I walked because it was dark and when I got there, wherever it was I put my, my leg into it and I fell. That’s all I said in Court.

Q. Can I suggest to you that in order to put your right foot into a hole that you say was where that metal plate is now. You would have had to have walked into and hit your face against the Colorbond fencing that exists there?

A. INTERPRETER: The Colorbond fence is a continuation, Colorbond there is a continuation of the Colorbond fence. I wouldn’t have realised where I was when I fell.

Q. I’m suggesting to you that if and I’m not suggesting there was a hole there that wasn’t covered by a metal plate. But I’m saying if the metal plate was not there and there was a hole, in order for your right foot to go into that hole, your body would’ve had to hit the Colorbond fence?

A. INTERPRETER: But the gate is the same as the fence itself so I was following with my hands to get to, following from fence to gate and that’s when I fell.

Q. So are you now saying that you were walking along the left-hand Colorbond fence holding onto it with your hand. Is that what you’re now saying?

A. INTERPRETER: That’s not what I’m saying. My car was parked across. So I walked in front of me and I was trying to get to the gate, but because it was dark I might have turned to the wrong direction and as a matter of fact, my left leg hit the edge it hit the plate.” (T 59 – 60)

63. However, the plaintiff’s car was not parked “across”; it was parked 18 – 20 metres back, and his evidence had been that he followed the fenceline by touching the colourbond fencing up to the area in which he fell. In those circumstances, if he had turned in the wrong direction, he would have been heading backwards, or alternatively across to the other side of the pathway, as opposed to going straight ahead and encountering the grated area where he claimed he fell.

64. The plaintiff’s description of how he came to injure his right leg, as opposed to his left, in circumstances where he was walking along the colourbond fence to get to the gate, is wholly implausible. For the plaintiff to walk to the gated area from his car, he had to walk on the left side and would have caught his left foot.

65. The plaintiff’s explanation for his fall is also dependent upon his description of putting his foot into a “hole” (T 60) and there being gates that he needed to unlock. As is set out above, I am satisfied that there were no gates and that at all relevant times there was a grate over the drain, not a concrete slab, and not a hole.

Has the plaintiff discharged the burden of proof?

66. The question is whether the plaintiff has established that he was injured in the circumstances he described.

67. Where all that is established are conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture, the plaintiff has not discharged the onus of proof: Westbus Pty Ltd (Administrators Appointed) v Ishak [2006] NSWCA 198.

68. However, I am satisfied from the evidence that the plaintiff did not fall in the circumstances or location he has described. First, I am satisfied that the gates to the rented premises were removed some months after the plaintiff commenced residing in the granny flat, to facilitate ease of onsite parking, and that there was no need to unlock gates in order for the plaintiff to park. Second, I am satisfied that on the evening of Friday 8 September 2017, the plaintiff drove into the rented premises and parked beside his front door, as was his general practice, and that he rolled his ankle getting out of the vehicle. Third, I am satisfied that he was taken to hospital by ambulance in the late afternoon on Monday 11 September 2017, and was admitted into hospital after seeing the triage nurse at about 5.55 pm and that he told them truthfully how he had fallen while getting out of the car. While I note that two weeks later he told Dr Ochs he fell in a “gutter”, I am satisfied that his claims of falling in a gutter and/or in a hole beside the fence are motivated by his wish to bring what he told Dr Ochs was an “insurance claim” against the defendants.

66. In those circumstances, I am satisfied that the plaintiff did not suffer his injury in the manner described but in circumstances where it was his own fault entirely, and not as a result of any act or omission by the defendants.

67. However, if I have erred in this regard, I am consider that, even on the version of events given by the plaintiff, the defendants’ claim would fail by reasons of the operations of ss 5B, 5C and 5D of the Civil Liability Act 2002 (NSW). I have approached the factfinding exercise for these provisions on the basis that the plaintiff can in fact establish that he was injured in the circumstances in which he claimed to have parked his car, walked 18 – 20 metres up towards the gates in the dark, and then fallen.

The relevant provisions of the Civil Liability Act 2002 (NSW)

71. Sections 5B and 5C provide:

“5B 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 determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a) the probability that the harm would occur if care 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 that creates the risk of harm.

5C Other principles

In proceedings relating 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 the thing 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 respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

72. Section 5D provides:

“5D General principles

(1) A determination that negligence caused particular harm comprises the following elements—

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.

(3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent—

(a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and

(b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.

(4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”

73. The question posed by s 5B(1)(b) is whether the risk “was not insignificant”. While this is a more demanding standard than one that is far-fetched or fanciful (Bunnings Group Ltd v Giudice [2018] NSWCA 144 at [53]-[54]), it takes into account common experience of human behaviour. In Dovuro v Wilkins (2003) 215 CLR 317; [2003] HCA 51 at [34], McHugh J observed that the law of negligence must ordinarily reflect the foresight, reactions and conduct of ordinary members of the community, and that “[t]o hold defendants to standards of conduct that do not reflect the common experience of the relevant community can only bring the law of negligence, and with it the administration of justice, into disrepute.” The formulation of the risk must take into account a plaintiff having reasonable care for his or her own safety: Prouten v Chapman [2021] NSWCA 207.

74. The likelihood that the plaintiff, whether or not the gates were removed to make ease of access to his parking spot accessible, would elect to park 18 – 20 metres away and walk along a gravel pathway in the dark without availing himself of any form of lighting was so low as to be fanciful. Mr Biordi’s unchallenged evidence was that he saw the plaintiff’s car parked on the concrete slab beside the front door on a regular basis and that he had removed the gates to facilitate parking occurring there. He had no notice of the likelihood of the plaintiff walking along a gravel roadway without any kind of lighting assistance.

75. This is a case where the reasonable response to such a fanciful risk was to do nothing, given the expense and inconvenience of having lighting along an internal driveway on a property with other places of residence and farm animals. A reasonable householder or landlord would feel no more need to place lighting along internal driveways than they would to take precautions against harm from the presence of objects lying on their lawns, even though these might present hazards: Sibraa v Brown [2012] NSWCA 328.

76. Even if the defendants had not removed the gates, the expectation that the plaintiff would use the lighting available to him from his car’s headlights or some other readily available source of light in order to enter the premises safely, as opposed to parking a distance away and walking in the dark in circumstances where he knew there was a grate beside the fence, would lead to the same conclusion.

Contributory negligence

77. Even if there were still gates in the colourbond fence, there was no need for the plaintiff to have walked 18 – 20 metres in the dark, holding on to the colourbond fence, when he could have stopped his car in front of the gates with the car lights on so that he could see his way to unlock the gate. Even if he did not intend to drive in to the property’s car park spot, he could still have stopped his vehicle outside the gate area so that he could see to unlock the gate. He had no need to walk anywhere near the grate on the left side of the fence (the existence of which he was well aware), as the gates locked in the middle.

78. Walking in complete darkness on a gravel driveway in a rural area without obtaining any kind of light (such as headlights or a mobile phone torch) would be a dangerous activity even for a young person in good health. The plaintiff knew it was dark and that there was a grate on the left side, but elected not to take any precautions such as driving up to the gate with his lights on. Accordingly, if there were still gates on the property, I would assess contributory negligence at 90%.

79. If, however, the gates had been removed to make driving onto the property easier (as I have found to be the case) then the plaintiff had no reason at all to park outside and walk 18 – 20 metres in the dark. In those circumstances, I would assess contributory negligence at 100%.

Conclusions concerning liability

80. The defendants are entitled to judgment as the plaintiff has failed to establish that the accident occurred as he described and, alternatively, that if it did occur as described, the defendants breached their duty of care to him. I have also made alternative findings as to contributory negligence.

81. I make brief observations as to quantum in the event that I have erred in my findings on liability.

Quantum

82. The plaintiff seeks damages for non-economic loss, plus out of pockets (past agreed at $1,875; future in a lump sum of $35,000) as well as home care for the future. A claim for past home care was effectively abandoned during submissions.

Non-economic loss

83. Dr Lee assessed the plaintiff at 18% and this figure was accepted by Mr Hull. That amounts to $17,000.

Past and future economic loss

84. Past out of pockets are agreed at $1,875.45.

85. The cushion of $35,000 for future out-of-pocket expenses is excessive. The plaintiff does not require any further active treatment, according to Dr Lee, and I interpret his remarks to this effect to include no further need for physiotherapy (CB:45).

86. The plaintiff sees doctors regularly for his other conditions, but did not see his own general practitioner about his ankle for a period of a year (between April 2019 – March 2020). Although he took paracetamol following the accident, he did not give evidence of taking any over-the-counter medication now for any problems with his ankle, and he has not been prescribed any medication for it by any of the practitioners he has consulted in recent times.

87. There is no evidence of osteoarthritic changes (Dr Smith: CB:51) or other conditions requiring medication. Although the plaintiff tendered photographs of his leg to show it was discoloured, there is no medical evidence linking this to the fracture; Dr Lee’s report of 26 April 2021 refers (CB:45) to redness due to a skin infection.

88. In practical terms, apart from occasional visits to his general practitioner, the plaintiff would be unlikely to incur any future expenses.

89. I also note that the estimate does not take into account the necessary discount referred to in Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] NSWCA 146 at [153] and [166].

90. A small allowance should be made for visits to the general practitioner two or three times a year, although the likelihood is that he would be visiting his doctor in any event, given his other medical conditions.

91. In the circumstances, I propose to allow for a small sum and round up the total of past and future out of pocket expenses to $3,000.

Past and future care

92. Mr Stewart effectively abandoned the claim for past care during submissions,, but sought a cushion for future care.

93. There are a number of problems in terms of a cushion for future care:

1. There is no evidence from an occupational therapist identifying what expenses and needs are related to the plaintiff’s ankle problems: Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443.

2. There is no evidence that the plaintiff would pay for such services: Miller v Galderisi [2009] NSWCA 353.

3. The plaintiff has in fact been assessed by ACAT for home care arising from his other injuries and disabilities which include knee and back problems and diabetes. No allowance has been made for overlap.

4. The evidence of the plaintiff’s girlfriend is that she does less for him now than she did before his injury and there is no reason to assume that this will change in the future.

5. No allowance has been made for the impact of the plaintiff’s general ageing: Metaxoulis v McDonald’s Australia Ltd [2015] NSWCA 95.

94. Accordingly no allowance for future care should be made.

Damages and costs

95. The total of $20,000 for non-economic loss and out of pocket expenses would be subject to reduction for contributory negligence as set out above.

96. I have reserved the issue of costs with liberty to apply. I note that, if the plaintiff had been successful, the provisions of Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 42.35 would have had to be considered.

Order:

1. Judgment for the defendants.

2. Costs reserved, with liberty to apply.

3. Exhibits retained until further order.

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Decision last updated: 22 September 2021