James v Coffs Harbour City Council

[2007] NSWDC 34

CITATION:	JAMES v COFFS HARBOUR CITY COUNCIL [2007] NSWDC 34
HEARING DATE(S):	7-9 March 2007
EX TEMPORE JUDGMENT DATE:	13 March 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $5,902.45. 2. Defendant to pay the plaintiff’s costs of the proceedings on an ordinary basis suspended for 7 days to allow the defendant to make an application should it so wish. 3. Exhibits released.
CATCHWORDS:	Roads authority - Notice of defect at appropriate Council officer level - Overstatement of claim by plaintiff.
LEGISLATION CITED:	Civil Liability Act 2002
CASES CITED:	Leichhardt Municipal Council v Montgomery [2007] HCA 6
PARTIES:	Robert Mark JAMES by his Tutor Lauren Marelle KAY COFFS HARBOUR CITY COUNCIL
FILE NUMBER(S):	Newcastle 251/04
COUNSEL:	C A W Hart - Plaintiff S Glascott - Defendant
SOLICITORS:	Michael Evers & Co - Plaintiff Phillips Fox - Defendant

JUDGMENT

HER HONOUR:

1 In this matter the plaintiff, Robert Mark James, on 26 July 2001 stepped onto the grass at the side of Arthur Street Coffs Harbour after running across the road. Beneath the grass was a drainage pit. The cover of the pit collapsed when Mr James stepped on it.

2 He claims to have suffered significant injuries and disabilities as a result of fall into the pit. He claims that he suffers from pain and disability in his left leg, his left hip, his left ankle and his lower back as a consequence.

3 Mr James holds Coffs Harbour City Council responsible for his injuries.

4 The Council has admitted that it is a roads authority and that it was the roads authority at 26 July 2001 in respect of the drainage pit. The Council has also admitted that on that date the pit was covered by grass.

5 The issues for determination were as follows:

(1) The extent of the Council’s liability for the condition of the lid of the pit having regard to:

(a) S 5B of the Civil Liability Act 2002.

(b) The limits on its financial and other resources.

(c) The extent of its knowledge of the defective nature of the lid of the pit.

(d) The extent of its knowledge that the defects, if any, presented a risk to Mr James as a pedestrian.

(e) To the extent not already dealt with by the other issues, matters arising from sections 42, 44 and 45 of the Act.

(2) The damages, if any, to be awarded to the plaintiff in respect of his claimed injuries.

ISSUE 1 - LIABILITY

6 In the 1980s Arthur Street Coffs Harbour was extended as part of the development of the site of the Park Beach Shopping Centre at Coffs Harbour. In the course of the extension of Arthur Street the drainage pit into which Mr James fell was constructed.

7 The road and the pit were constructed by a contractor on behalf of the shopping centre developer. There was no evidence that the Council itself was directly involved in any part of the construction work. This is therefore not a case of defective workmanship undertaken by the Council or its employees.

8 The recent decision of the High Court in Leichhardt Municipal Council v Montgomery [2007] HCA 6 27 February 2007 makes it clear that the Council cannot be held liable for any negligence of the contractor that undertook the work on the pit.

9 The extension of Arthur Street was dedicated as a public road on registration of a plan of subdivision on 7 March 1982. On 21 October 1980, prior to registration of the plan, Mr A J Mulhearn of Alan Mulhearn and Associates Pty Limited, consulting engineers, wrote to the Shire Clerk of the Council as follows:

10 We wish to confirm with you verbal conversations between members of your engineering staff and Mr G Slattery of our office in relation to the above works.

11 The two kerb inlet pits on the Arthur Street access have not been constructed by the civil contractor to Council standard and accordingly, following discussions with your staff, we have directed that new pit tops and kerb lintels be constructed to conform with Council standard.

12 There was no evidence before the Court to indicate that new pit tops and kerb lintels were constructed to conform with Council standards or that Council officers inspected or in any other way obtained confirmation that this was done.

13 Mr Slattery, referred to in that letter, provided a report to the plaintiff’s solicitor on 24 August 2006 in which he stated that Council procedure in 1980 was to inspect and approve of all works on public road reserves. He said that all work had to be complete prior to acceptance by the Council or in some cases a bond was required to cover incomplete items. If bonded the funds were held until the outstanding work was complete and accepted.

14 He said that at the time of construction in 1980 the Council’s inspection procedure was very strict and rigorous. Mr Slattery did not believe that Council could have overlooked the completion of the pits identified in Mr Mulhearn’s letter. On this basis he concluded that the pit lids must have been completed to the Council standards and must have been inspected and accepted by the Council.

15 His explanation for the collapse of the lid of the pit which was stepped upon by Mr James was that the lid had been damaged after initial construction. In this respect he noted that there was damage to the lintels over the inlet drain which had been repaired at some later stage after the work had been transferred to Council. Alternatively, he said, the lid had not been correctly fitted to the pit top but that a lid with incorrect dimensions had been used.

16 Contrary to Mr Slattery’s explanation, investigations undertaken after Mr James’ fall indicated that, as claimed by Mr James, at the time he fell the pit was not covered by any form of concrete lid, rather the pit was covered by timber planks which had been obscured by grass which had grown over them.

17 Mr Mulhearn advised the Council’s insurer on 8 July 2004 that his firm had been unaware that the rectification work identified in the letter of October 1980 had not been carried out. He stated that his firm had not in fact instructed the subcontractor to undertake the rectification work. He stated that his firm had advised the Council’s inspecting officer and had confirmed that advice in the letter of October 1980. This does not appear to represent precisely what was stated in the 1980 letter.

18 However, in a report to Council solicitor, Mr Clark of Jackson Clark Pty Limited noted that inspection by Council staff after it received advice of the plaintiff’s accident had revealed that grass turf had been laid over the pit and that no concrete cover was present. The cover in fact comprised timber laid over the opening with turf laid over the timber.

19 It appeared to Mr Clark, contrary to what was stated by Mr Slattery, that the cover for the pit top referred to in the Mulhearn letter of October 1980 had not been constructed. Mr Clark stated that the pit had been left with timber formwork covering the opening. The turf laid over the timber had hidden the absence of the concrete cover. Mr Clark was of the opinion that in the 21 years, to the date of the plaintiff’s accident it was Quite probable that the timber deteriorated to the stage where it could no longer support the weight of a person stepping on it.

20 Mr Clark rejected Mr Slattery’s conclusion that Mr James fall had been the consequence of a broken or ill-fitting concrete cover. This conclusion, he said, assumed that a concrete cover had been present, contrary to the observations of Council staff.

21 Mr Slattery’s statement that the pit repairs referred to in the Mulhearn letter of October 1980 were completed and accepted by Council was described by Mr Clark as conjecture based upon Mr Slattery’s view of Council’s inspection procedures at the time. Mr Clark stated that he had seen no record of inspection or acceptance of the work.

22 This material leads to the following findings of fact:

(1) As at October 1980 the lid of the pit into which Mr James fell had not been constructed to Council standards. The Council had been informed of this fact through and by letter to the Shire Clerk.

(2) The concrete cover required by that standard was never constructed.

(3) The pit was covered with wooden planks and turf was laid over the planks.

(4) The implementation of the rigorous inspection procedures referred to by Mr Slattery would have revealed to the Council the defective nature of the lid.

(5) It is highly probably therefore, that although it was on notice that the lid did not conform, the Council failed to inspect the lid to ensure that it met its standards before registration of the subdivision plan in 1982 and the passing of the road and its associated works to the Council as the roads authority.

23 The result is that there was a foreseeable risk of harm arising out of the fact that the pit lid had not been constructed to Council standards but had been left covered with timber. The risk was not insignificant and was one against which a person in the Council’s position would reasonably have taken precautions. This, of course, was the very purpose of the standard for construction of the pit lids and the post construction inspection rigorously imposed by the Council. There was no evidence to suggest that compliance with this system imposed an undue economic burden on the Council or other burden its services.

24 The remaining issue is whether there was actual knowledge of the risk arising from the substandard pit cover. The letter from Mr Mulhearn of October 1980 provides that notice to the Shire Clerk. This information was also verbally notified to the Council officer responsible for inspection at that time.

25 I am left without doubt that notice was given to Council at the appropriate level of seniority. In the circumstances, I find the Council liable to the plaintiff in respect of the circumstances in which he fell into the pit.

ISSUE 2 – DAMAGES

26 I note that at the time of his fall Mr James was 27 years old, he is now 32. He claimed that he has never recovered from the injuries suffered in the fall.

27 He stated that the timber over the pit gave way beneath his right leg which went into the pit injuring the front of his right shin. He said he suffered also injury to his left ankle, knee and hip when the left leg folded underneath him as the right leg descended into the pit. This injury has been described in the medical evidence as a hyperflexion injury involving the left hip.

28 Mr James said he hobbled to his home and crawled up the steps to the house. He said he thought he would recover and had a bath but during the day pain developed. His partner drove him to Coffs Harbour Base Hospital where he was kept waiting for a lengthy period and went home without treatment.

29 The next day he went to his general practitioner, Dr Duguid complaining of pain. The plaintiff said he complained of pain in his left hip and knee. The doctor’s records indicated that he complained only of a strain in his left ankle. He was told to rest and to take painkilling medication.

30 Mr James has since consulted a number of doctors and undertaken treatment and investigative procedures. He says he has had no relief from the pain and discomfort resulting from the fall and that he relies upon considerable quantities of painkilling medication as well as illicit substances for pain relief. He complained that he could place no weight on his left leg. He was noted on entering and leaving the witness box to walk with the left leg stiff at the knee with a hobbling gait and placing little weight on his left leg.

31 Investigations have failed to identify the cause of the ongoing pain. This has caused him considerable psychological concern because he believed that he has been regarded as a hypochondriac.

32 Mr James said he engaged in martial arts, he ran, he cycled and he body surfed prior to the accident. He said he can no longer undertake any of these activities. He is also unable to participate in activities with his young child. His injuries, he said, affect his enjoyment of his sexual activities and they affect many other aspects of his life.

33 As far as his income earning capacity is concerned, Mr James pre-accident work history was of intermittent unskilled work. At the time of his accident he was working with Woolworths as a storeman, apparently for three hours a week only. There was no evidence that he had any other work at that time.

34 Tax returns in evidence indicated that his income was very limited with the greatest proportion of income derived from Social Security benefits.

35 Mr James said that prior to the accident he had planned to join the police force. He had attended an information session through which he had become aware that his income as a police officer would have been in the region of $30,000 to $40,000 per annum.

36 He has worked on only one occasion since the accident, that is on 5 August 2001 with Woolworths for a period of three hours. Mr James evidence was that he stopped working for Woolworths because his injuries rendered him unable to do the work. The Woolworths document in evidence, part of Exhibit FF, indicated that casual work was no longer available to him.

37 The plaintiff therefore presented as very considerably disabled as a result of his fall with little prospect of securing employment.

38 The plaintiff’s claims have little support from the medical evidence. I have already noted the discrepancy between the plaintiff’s evidence and his general practitioner’s notes as to the way in which he presented on the day after the accident. There is no record in that note of any complaint of hip pain.

39 By August 2001 the general practitioner recorded that the ankle was improving and that the plaintiff had experienced a minor twinge in his mid thigh which was also improving. There was no swelling at that consultation although there was slight tenderness over the ankle.

40 In October 2001, because of complaints of continuing pain Mr James was referred to xray. The xray report noted no fracture or dislocation and no soft tissue swelling. In November 2001 there is a record of the plaintiff attending his doctor after having been assaulted. He said that in the course of this assault the assailant targeted his knee deliberately because he had been aware of the injury suffered in the fall. This, he said, considerably increased his symptoms which subsequently reverted to their pre-assault level.

41 Clinical notes of the many other general practitioners and doctors consulted by the plaintiff from time to time, with the results of referrals for various investigative procedures, indicate that no abnormalities were detected except for a minor abnormality in the lower lumber spine at the L5/S1 level.

42 Dr Laycock referred the plaintiff to a physiotherapist at the Royal Newcastle Hospital in September 2003 with complaints of low back pain and left lower limb pain likely to be the result of the abnormality at the L5/S1 disc. Dr Laycock said that there was no evidence of nerve root compression and that she expected improvement with physical activity.

43 Dr Laycock reported in September 2003 to the general practitioner at the time, Dr Smith, in relation to the complaints of back pain and clicking from the left hip. The plaintiff had physiotherapy in September and October 2003 on three occasions. He said the physiotherapist had pushed him too harm and had caused him pain. He said that if he were funded he would seek physiotherapy from a private therapist, appearing to assume that this would be less demanding.

44 In November 2003 Mr James consulted Dr Russo who diagnosed musculo-ligamentous injury. Dr Russo did not state to what part of his body, but I have inferred that he was referring to Mr James’ left hip. Mr James had complained to Dr Russo of left groin, buttock and ankle pain with left knee pain commencing in the last couple of months. Dr Russo made no record of any complaint of back pain, notwithstanding that he had been complaining of this to Dr Laycock two months before and had received physiotherapy for it.

45 Dr Russo reported that Mr James was overwhelmingly focusing on his pain which was amplifying his symptomology. He said that Mr James’ high degree of litigation focus was a poor prognostic factor for early recovery. Dr Russo recommended cognitive behavioural therapy through a pain management program.

46 Mr James was sent to Dr Hopcroft in December 2003.

47 Mr James reported to Dr Hopcroft that as a result of his injury he had suffered pain to his left ankle, knee and very severe pain into his hip and that the fingers of his left hand had become swollen and tender. There was no reference of any such complaint in the general practitioner’s notes of 27 July 2001. Dr Hopcroft also reported that the plaintiff complained that his left ankle had swelled immediately.

48 At the time of his consultation with Dr Hopcroft Mr James complained of left groin pain, left wrist swelling and pain radiating downwards towards his left knee. He said that stretching of the left hip joint aggravated his pain. There was no record of complaint of back pain or of ankle pain.

49 Dr Hopcroft said that on examination there was full range of movement in the left knee joint and the left ankle without apparent problems. There was also a full range of movement in the left wrist. He diagnosed that the plaintiff was suffering from the residual effects of a major force flexion injury to the left hip with marked left hip pain. He recommended physiotherapy and muscle strengthening exercises through hydrotherapy. Dr Hopcroft made no reference to the unusual gait with which Mr James presented to the court and to Dr Watson who examined him for the defendant.

50 Dr Verheul examined the plaintiff in July 2004. He stated that there were no mechanical problems attributable to Mr James’ hip and that there was no surgery that would benefit him.

51 In July and August 2004 further physiotherapy was provided by Royal Newcastle Hospital. The notes refer to a lack of success in introducing programs to increase Mr James exercise tolerance because he complained of pain. There was a reference also to a lack of motivation on Mr James’ part.

52 In June 2005 the general practitioner, Dr Smith, diagnosed a chronic pain condition requiring pain management in the terms suggested by Dr Russo.

53 Dr Bentivoglio saw the plaintiff in March 2006. At that stage the plaintiff stated that he had developed right knee pain six months before the consultation and that this was the area that was troubling him most of all. He also complained of symptoms in his left buttock and hip, left ankle and left knee.

54 On examination Dr Bentivoglio reported no objective signs of injury and no muscle wasting. His diagnosis was of chondromalacia patellae in the left and right knees, a soft tissue hip injury and a jarring injury to the left ankle. He referred to psychological stress secondary to the injury.

55 For the defendant the plaintiff was seen by Dr Watson in July 2005, to whom he complained of symptoms in the left hip, knee and ankle. No reference was made to back pain.

56 Dr Watson recorded that Mr James told him that he was taking no medication but that he was using marijuana. He referred to several instances of inconsistent and apparently bizarre behaviour in answers to his questions. He referred to Mr James gait in the following terms:

He walked with a bizarre swinging, stopping gait with the left hip flexed, the left knee flexed and the leg externally rotated and the foot also in a slightly externally rotated position. It was a wobbly, swinging, bizarre gait that did not fit any organic pattern.

57 He said that on the whole the examination had been unsatisfactory because the plaintiff had declined to undertake many of the tests that he requested.

58 Dr Watson said he could determine no clinical signs suggesting pathology in the lumber spine, the left hip, the knee or the ankle. He said it was difficult to co-relate the mechanism of the injury with the symptoms with which Mr James had presented. He said there were many inconsistencies for which he, Dr Watson, could not determine any organic pathology.

59 He said that no treatment was required and that Mr James could work in occupations to which he was suited by reason of his limited education and training.

60 Dr Machart, in October 2006, had even greater difficulty dealing with the plaintiff. He said that Mr James appeared to him to be agitated, he used many expletives and he refused to be examined. He told Dr Machart that he had suffered injuries to his left ankle, knee, hip and that he had developed low back pain one year ago. He stated that he was taking Digesics and Panadeine Forte and illicit drugs.

61 Dr Machart proceeded to express an opinion, in the absence of examination, based upon his instructions and on xray materials. His opinion was that he had been unable to establish any trauma related condition referrable to the accident. The only positive finding was of disc degeneration and protrusion at the L5/S1 level but that the current symptoms reported by Mr James were not specific of trauma to the disc.

62 Dr Machart said that even if an injury in the nature of disc protrusion had occurred in the fall it should have healed significantly in the five years since the accident. He said there were no work limits placed upon the plaintiff related to any injury suffered in July 2001.

63 Dr Machart was of the view that the disc protrusion might limit Mr James lifting capacity, although it had not been established that the protrusion was the result of injury from the accident. Dr Machart suspected that the plaintiff suffered from psychiatric disorders of schizophrenia or personality disorder which impacted upon his perception of ongoing physical ailments.

64 This statement by Dr Machart encapsulates the problem with which I have to deal, namely whether Mr James complaints of ongoing symptoms are manufactured or whether they are the product of some form of psychiatric disorder. There is no psychiatric evidence before the court.

65 There is a report of Dr Dragutinovich dated 9 March 2006 in which he deals with Mr James background and childhood difficulties of having been made a ward of the State at the age of seven, having lived on the streets for a period of time and having very little formal education and no work skills. Dr Dragutinovich diagnosed a chronic pain disorder associated with both psychological factors and his general medical condition.

66 He said the major psychological components comprise moderate anxiety reactive to re-injury fears and concerns about clinical prognosis and depression reactive to pain related physical activity limitations and inability to permanently escape persistent multi regional aversive stimulation. Dr Dragutinovich also diagnosed exacerbated substance, that is cannabis, abuse disorder.

67 In favour of the proposition that the plaintiff’s current condition is the result of some form of psychiatric disorder is the material dealing with his unfortunate background history and Dr Dragutinovich’s reports and partial diagnosis of chronic pain disorder. I have already noted the same diagnosis was put forward by the general practitioner, Dr Smith. Against that proposition are the following factors:

(1) the absence of any objective clinical findings to support the claimed significant disabilities;

(2) the inconsistency in symptoms reported at various times to various doctors;

(3) the inconsistencies in presentation at various times to various doctors;

(4) the impossibility of determining, on the evidence, the extent to which substance abuse contributes to the symptoms of which Mr James complains, whether they be actual or perceived; and

(5) the absence of evidence of any psychiatric examination or diagnosis.

68 In the absence of psychiatric evidence I am able to accept a diagnosis only of soft tissue injuries resulting from the fall which ought to have resolved within a relatively short period after the accident.

69 I have declined to accept the diagnosis of chronic pain disorder because my impression of Mr James was that he was a most unimpressive witness.

70 My conclusion on the evidence as presented and on the probabilities is that he significantly and deliberately overstated the extent of his injuries and disabilities. My assessment of his claim is made on that basis and it leads to the following.

71 I have assessed Mr James non economic loss as zero on the basis that he does not reach the threshold imposed by the Act.

72 Past out-of-pocket expenses are allowed in the agreed sum of $4, 402.55.

73 I make no allowance for the future on the basis of my conclusion that the soft tissue injuries ought to have resolved within a moderately short period after the accident. I am not persuaded that any assistance is required in relation to Mr James domestic care.

74 As far as economic loss is concerned, as noted the documents indicated that in the months prior to the accident Mr James was working three hours a week only and his weekly income averaged about $20. Prior to this he was working about ten hours, taking home between $150 and $200 per week. There was no explanation for the drop in the number of hours. Doing the best that I can and allowing Mr James a period for recovery, I have allowed the sum of $1,500 for past income loss during the recovery period. I have made no allowance for income loss in the future on the basis, that the reason he is now not working, whatever it may be, is not because of injuries following the fall in July 2001.

75 The result is:

1. Verdict and judgment for the plaintiff in the sum of $5,902.45.

2. The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis. That order is suspended for seven days to allow the defendant to make any further application should it see fit.

3.The exhibits may be returned.

76 Mr Evers I wanted to commend you for your assistance to the court in this difficult matter and volunteering to help Mr James.

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