Knibbs v Sheteh, Sheteh, George Koolbanis t/as Lancelot Plumbing and Vlahos; George Koolbanis t/as Lancelot Plumbing v Vlahos - [2017] NSWDC 119

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Knibbs v Sheteh, Sheteh, George Koolbanis t/as Lancelot Plumbing & Vlahos; George Koolbanis t/as Lancelot Plumbing v Vlahos [2017] NSWDC 119
Hearing dates: 5, 6, 7 and 10 April 2017
Date of orders: 25 May 2017
Decision date: 25 May 2017
Jurisdiction: Civil
Before: Wilson SC DCJ
Decision:
1.    Verdict for the first and second defendants against the plaintiff;
2.    Plaintiff to pay the costs of the first and second defendants;
3.    Verdict for the third defendant against the plaintiff;
4.    Plaintiff to pay the costs of the third defendant;
5.    Verdict for the fourth defendant against the plaintiff;
6.    Plaintiff to pay the costs of the fourth defendant;
7.    The First Cross Claim is dismissed with no order as to costs;
8.    The Second Cross Claim is dismissed with no order as to costs;
9.    Liberty to apply within 7 days to vary any costs orders;
10. Exhibits retained by the Court for 28 days.

Catchwords: PUBLIC LIABIILTY – slip and fall on leased residential premises - liability of absentee landlord - content of duty of care – whether duty non-delegable
LIABILITY OF CONTRACTOR – relationship between contractor and sub-contractor – indicia of employment absent
CREDIBILITY – reliability of witnesses
JONES v DUNKEL – failure to call or explain absence of witnesses
EVIDENCE – use of photographs – business records
Legislation Cited: Civil Liability Act 2002; ss5B(2)(a)-(d), 5C, 5D, 5F, 5R(1), 5S and 15(2)(a)-(c),(3) and 16.
Cases Cited: ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532
Ahluwalia v Robinson [2003] NSWCA 175
Bellavista Pty Limited v Liberty International Insurance Company [2009] NSWCA 16 at [53]
Blacktown City Council v Hocking [2008] NSWCA 144 [170-[172]
Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29, 206 CLR 512 at [163]
Burnie Port Authority v General Jones (1984) 179 CLR 520
Cavalier v Pope [1906] AC 428
Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co-Operative Assurance Company of Australia Limited [1931] HCA 3; (1931) 46 CLR 41
Council of the City of Sydney v Hunter [2014] NSWCA 449
Fair Work Ombudsman v Ecosway Pty Limited [2016] FCA 296
Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21
Jones v Bartlett [2000] HCA 56; 205 CLR 166
Jones v Dunkel (1959) 101 CLR 298
Mamo v Surace [2014] NSWCA 58
Marshall v Whittaker’s Building Co (1963) 109 CLR 210
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313
Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10]
Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588
Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Texts Cited: Wigmore on Evidence (3rd Edition (1940) Vol 2 ss289,290)
Category: Principal judgment
Parties: Clinton Knibbs (Plaintiff)
Samir Sheteh (1st Defendant)
Samia Sheteh (2nd Defendant)
George Koolbanis t/as Lancelot Plumbing (3rd Defendant)
Nick Vlahos (4th Defendant)
Representation:
Counsel:
J Reimer (Plaintiff)
D Talintyre (1st and 2nd Defendants)
R Perla (3rd Defendant)
A Kostopoulos (4th Defendant)
Solicitors:
Brydens Lawyers (Plaintiff)
Sparke Helmore (1st and 2nd Defendants)
Moray and Agnew (3rd Defendant)
Russell C Byrnes (4th Defendant)

File Number(s): 2015/311718
Publication restriction: None

Judgment

The plaintiff was born on xxxxxxx 1986. On 31 December 2012, whilst visiting a property known as and situated at 14 Rutherford Road, Blacktown (“the Property”), the plaintiff claims to have suffered personal injury comprising an injury to his low back, left ribs and left elbow. At the time, the Property was occupied by the plaintiff’s mother (Ms Mallia). The plaintiff and his family were regular visitors to and were familiar with the Property.
Shortly prior to the plaintiff’s accident, works were undertaken to repair the gas line connected to the Property. The works were restricted to a narrow section of the front of the Property leading from the gas meter to the house. They involved the connection of a gas line from the gas meter to the house (“the Works”). The Works were performed in two stages and by different people. The third defendant fitted the gas line from the meter to the house on 5 December 2012 (Stage 1). The fourth defendant dug a trench in the lawn to bury the gas line and refill the trench with soil, dirt and rocks removed from it (Stage 2).
The plaintiff’s case is that he was walking across the lawn in the vicinity of the area where the work had been performed when he slipped on rubble, falling onto his lower back and left elbow.
The plaintiff claims damages against the owners of the Property (the first and second defendants), the plumber who performed Stage 1 of the Works (the third defendant) and the labourer who performed Stage 2 of the Works (the fourth defendant).

THE PLAINTIFf’S CLAIM

The plaintiff’s claim proceeded on a Further Amended Statement of Claim filed 21 March 2017 which contained the following principal allegations of fact:

7.    At all material times the third defendant and/or fourth defendant had dug a trench in the front yard, running parallel to the grass verge in the front yard and walking path to the Property.
8.   At all material times rubble and rocks and dirt and fill from the trench was lying on the grass verge at the front of the Property.
9.   On or about the late afternoon of Monday 31 December 2012 as the plaintiff was walking across the grass verge both feet slipped out from out in front of him and he fell heavily on clumps of clay and rock material sustaining injury, loss and damage.

The Further Amended Statement of Claim then sets out a number of allegations intended to engage the statutory requirements of the Civil Liability Act 2002 (“CLA”).
Curiously, the particulars of negligence raised against each of the defendants are identical, despite the differing relationships between each of the defendants and the plaintiff, the applicable duty of care and the content of that duty. The particulars of negligence are set out in paragraph 18 of the Further Amended Statement of Claim as follows:

failing to take reasonable steps for the safety of invitees and/or lawful visitors, including the plaintiff, to the property;

failing to provide a safe means of access and egress to lawful visitors to the property;

failing to provide a safe access and egress to the property that was free from hazards;

failing to take any or any adequate precautions for the plaintiff’s safety;

putting the plaintiff in a position of peril in the circumstances;

exposing the plaintiff to a risk of injury, which could have been avoided by reasonable care on the part of the defendants;

failing to provide a safe access and egress to the property that was clear of rubble and/or debris;

failing to devise or institute or maintain a proper and safe system of work that did not include the risk of rubble and debris remaining on the grass verge and causing a slip hazard;

allowing the hazard to remain on the grass verge;

permitting the hazard to get on the grass verge;

failing to warn the plaintiff of the presence of the hazard on the grass;

failing to cordon off the area of the hazard by means of reflective tape and/or bollards or similar;

failing to inspect the work to ensure the workplace was safe and free from risk of injury to the tenants and/or the lawful guest and invitees of the tenant, including the plaintiff;

failing to ensure that the area of the hazard was cordoned off by means of reflective tape and/or bollards or similar.

The particulars of negligence raise a number of factual matters which were disputed between the parties and to which I shall return. It is clear, however, that the relevant risk upon which the plaintiff relies was created by the way in which Stage 2 of the Works was completed. It is said to have left an uneven surface and rubble which caused the plaintiff to fall.
I will briefly outline the cases of the defendants as pleaded.

THE FIRST AND SECOND DEFENDANTS’ CASE

The first and second defendants rely upon the Defence filed 31 March 2017.
Those defendants admitted that they were the registered proprietors of the Property at the relevant time.
They admitted that they had engaged the third defendant to perform plumbing works at the Property. It was their belief that the plumbing works commenced on or about 20 December 2012.
The gravamen of the defence advanced on behalf of the first and second defendants was that by engaging an independent, competent and qualified plumber they had discharged the duty of care which they owed to the plaintiff.
The first and second defendants also raised matters relating to obvious risk under s5F of the CLA and contributory negligence.
On behalf of the first and second defendants, oral evidence was given by the second defendant. Plaintiff’s counsel declined to invite the Court to draw an adverse inference as to the absence of the first defendant.

THE THIRD DEFENDANT’S CASE

The third defendant was an independent, qualified and competent plumber who was retained by the first and second defendants to perform the Works on the Property relating to a defect in the supply of gas. In fact, he only completed Stage 1 himself and sub-contracted the performance of Stage 2 to the fourth defendant.
The third defendant raised the obvious risk provisions of the CLA and also pleaded contributory negligence against the plaintiff.
The third defendant relied upon an Amended First Cross Claim in which he sought indemnity and/or contribution from the fourth defendant. The cross claim essentially repeated the allegations of negligence raised by the plaintiff in the Further Amended Statement of Claim and also pleaded a breach of contract by the fourth defendant. The contract was said to be oral.

THE FOURTH DEFENDANT’S CASE

The fourth defendant admits that he performed Stage 2 of the Works but denies that he left it in an unsafe condition. The state of the trench and its immediate surroundings at the conclusion of Stage 2 was a matter of disputed fact which is determined below.
Further, the fourth defendant claims that he was working under the direction, supervision, management, care and control of the third defendant and maintained that the overall responsibility for the work performed by the fourth defendant rested with the third defendant.
The fourth defendant raised the defences relating to obvious risk under the CLA but did not plead contributory negligence against the plaintiff.
He relied upon a Second Cross Claim filed 27 March 2017 in which the fourth defendant sought indemnity and/or contribution from the third defendant. The cross claim was put essentially on the basis that the fourth defendant was working under the direct supervision and direction of the third defendant who had failed to ensure that the trench was left in a safe condition.
The Second Cross Claim pleads negligence and breach of contract against the third defendant. Again, the contract was oral.

FACTS NOT IN DISPUTE

There are some factual matters which were not contested between the parties or were not otherwise controversial. They include:

the first and second defendants were the registered proprietors or owners of the Property;

Ms Mallia occupied the Property pursuant to a lease agreement with the first and second defendants;

Ms Clarke was also noted as a tenant for the purposes of the lease and was a co-occupier of the Property;

there was regular contact between the first and second defendants and Ms Mallia in relation to the collection of rent and the undertaking of maintenance and repairs to the Property;

some time prior to 5 December 2012, Ms Mallia notified the second defendant that there was a problem with the gas supply to the house;

on a date prior to 5 December 2012, the second defendant (Mrs Sheteh) contacted the first defendant (Mr Koolbanis) and engaged him to rectify the defect in the supply of gas to the house;

that on or about 5 December 2012, Mr Koolbanis attended the Property for the purpose of undertaking Stage 1 of the Works;

that Mr Koolbanis was a qualified, experienced and competent plumber;

on that occasion, the third defendant installed a yellow temporary gas line running from the gas meter at the front of the Property to a point where it connected to an inlet in the vicinity of the front left hand side of the house (looking at the house from the street);

on that occasion, Mr Koolbanis did not bury the temporary gas line;

the temporary gas line ran along the pathway on the left hand side of the Property (again looking at the Property from the street);

that Ms Mallia was satisfied with the condition in which the Property had been left by Mr Koolbanis on 5 December 2012;

that on or about 29 December 2012, Mr Koolbanis attended the Property with the fourth defendant (Mr Vlahos);

on that occasion, Mr Koolbanis engaged Mr Vlahos to perform the excavation and backfilling work in order to facilitate the laying of the temporary gas line under the front lawn of the Property;

that Mr Vlahos had completed a builder’s course and was an experienced and competent labourer;

the work was performed by Mr Vlahos on 29 December 2012 using a shovel;

the temporary gas line was then placed into the trench;

Mr Vlahos then backfilled the trench;

In late December 2012, the plaintiff, together with his wife and children, were present at the Property;

that sometime in early January 2013, probably on 3rd January, the Property was visited by Mrs Sheteh, Mr Koolbanis and Mr Vlahos;

on that occasion, Ms Clark was also present;

on that occasion, the attending defendants were made aware of the assertion that the plaintiff had fallen.

DISPUTED FACTS

The following factual matters were in dispute between the parties:

the condition of the area of lawn where Stage 2 of the Works had been performed on 29 December 2012, following completion of that work;

whether the photographs said to be taken by the plaintiff’s wife (Mrs Knibbs) immediately after the accident (Exhibit B) depict the state of the lawn in the area where Stage 2 of the Works were undertaken after they were completed on 29 December 2012;

when those photographs were taken;

where the plaintiff slipped and fell;

when the alleged accident occurred;

when the plaintiff consulted Dr Farabi;

whether, on 29 December 2012, a phone call was made by Ms Mallia to the second defendant;

if so, the content of that conversation;

whether, on 29 December 2012, a phone call was made by Ms Mallia to Mr Koolbanis;

if so, the content of that conversation;

whether, as at the time of the plaintiff’s accident (whenever that may have been), the state of the Property in the area where Stage 2 of the Works had been performed presented a risk of injury.

THE EVIDENCE

Evidence was given by the following witnesses:

the plaintiff;

Mary Mallia;

Mrs Knibbs;

Jodie Clark;

Samia Sheteh;

George Koolbanis; and

Nick Vlahos.

I make the following observations as to the evidence of those witnesses on the question of liability. In the course of reviewing the oral evidence, I have made a number of findings as to the evidence as it relates to matters in dispute.

The Plaintiff

The plaintiff had a poor recollection, at one stage stating that he “can barely remember yesterday let alone then” [T39.31].
The plaintiff told the Court that he, his wife and children arrived at the Property a bit before lunch on the day of the accident, although qualified that answer by saying that he was not too sure [T16.11]. He was injured when leaving the Property to go out for dinner with his wife. He said that he walked down the front steps of the house and crossed the lawn to the vehicle parked on Rutherford Road. The vehicle was owned by Kevin Dyde, the plaintiff’s father-in-law, who was driving the plaintiff and Mrs Knibbs to dinner.
Mr Dyde was not called to give evidence and this is a matter which I deal with below.
The plaintiff said that he had no other means of leaving the Property as there were bins on the walkway and cars in the driveway. This evidence is at odds with that of Ms Mallia who told the Court there was just one car in the driveway and that the bins were located elsewhere. Ms Mallia’s evidence was contradicted by the photographs taken by Mrs Knibbs on the day of the accident (Exhibit B) and by the evidence of Ms Clark.
The plaintiff said that he slipped on rubble, although he was not too sure what to call it [T16.40]. His feet then came out from underneath him and he fell on a rock on the lower back bum type area [T16.40].
In evidence-in-chief, he was shown the photographs taken by Mrs Knibbs (Exhibit C), (the original prints of the photographs are Exhibit B). The plaintiff was asked whether the photographs depicted the area of his fall. His answer was confusing [T17.37] although he seemed to accept that the photographs did show how things were at the time that he was injured.
The plaintiff marked Exhibit C-1 with an asterisk surrounded by a circle depicting the place where he fell.
As the plaintiff was leaving the premises, Mrs Knibbs was walking ahead of him and Mr Dyde was also present. As Mrs Knibbs had her back to the plaintiff, Mr Dyde and Ms Clark (who was on the verandah), were the only eye witnesses to the accident. As mentioned previously, Mr Dyde was not called. In respect of Ms Clark, her evidence as to the circumstances and location of the plaintiff’s fall was unsatisfactory and will be dealt with below.
Furthermore, the plaintiff’s evidence as to the location of his fall illustrated by Exhibit C-1 was at odds with the evidence of Ms Mallia as to where she saw the plaintiff on the ground upon coming out of the house. That location is depicted with a red cross in Exhibit D-1.
The plaintiff then told the Court that, despite the fall, they “tried to carry on with the evening that we had planned” [T22.18]. He said that they went out for some dinner but were not able to stay out for the full night. This is inconsistent with Mrs Knibbs’ evidence. She made no mention of going to dinner, instead saying that they went straight to the doctor. No attempt was made to explain this discrepancy in the evidence.
The plaintiff also adopted an entry in the Chronology (Exhibit A) to the effect that he consulted Dr Farabi, General Practitioner, on 31 December 2012. When asked about that attendance, his evidence was far from convincing [T22.31]. He was unable to say whether it was on the day of the accident that he saw Dr Farabi on the next day.
The plaintiff’s evidence that the accident occurred on 31 December 2012 in the afternoon and sometime thereafter he consulted Dr Farabi is inconsistent with Dr Farabi’s computer-generated consultation notes which record that the plaintiff saw the GP on 30 December 2012 at approximately 10:08am (Exhibit 3-D3, page 25).
Those notes record that the plaintiff complained of lumbo-sacral back pain and, on examination, his presentation was consistent with muscular pain. He was prescribed Panadeine Forte and told to come back for review if the problem persisted. The record made no reference to an accident.
The plaintiff told the Court that he consulted Dr Farabi on many occasions after the accident. This is also contradicted by the consultation notes produced by Dr Farabi which reveal only one consultation. That fact is confirmed by a letter from Dr Farabi to the plaintiff’s solicitors in which Dr Farabi stated:

“I can confirm that Mr Knibbs came to see me for medical consultation on one occasion only 30/12/12.

I have attached the consultation notes for this visit. I do not have any further information on the file and have not had any further contact with this patient …”

(Exhibit 3-D3, page 24).

The records produced by Dr Farabi raise a number of troubling issues which bear upon the reliability of the plaintiff. First, the notes have the consultation occurring prior to the subject accident. Secondly, the consultation notes make no mention of the accident. Thirdly, the single consultation note is inconsistent with the evidence by the plaintiff that he attended on Dr Farabi on many occasions.

The consultation notes are a business record and ought to be afforded greater weight than the vague and unreliable evidence of the plaintiff. Whilst an attempt was made by the plaintiff’s solicitors by way of letter dated 14 December 2015 to seek clarification of the plaintiff’s attendance upon Dr Farabi, his reply of 1 March 2016 (Exhibit 3-D3, page 24) makes it plain that he adhered to the business record and that he saw the plaintiff on only one occasion and that was prior to the accident.
Dr Farabi was not called by the plaintiff nor was any attempt made to explain his absence or otherwise explain the inconsistencies referred to above. I raised this matter squarely with counsel for the plaintiff. The following exchange occurred [commencing at T420.11]:

His Honour:   If I find that the plaintiff consulted Dr Farabi on 30 December 2012 at 10:08am, what do you say the result of that finding would be?
Reimer:   Depends on when you find the accident occurred, if you find that the accident occurred on the 31st then the reality is that my case falls down. Because everything that you heard about the accident and the reason for the visit to the doctor falls away.
His Honour:   You have invited me to make a finding that the accident occurred on the 31st. Does that mean your case falls down?
Reimer:   No, my position is that the doctor is wrong and the witnesses are right about the date of the accident. My case certainly, unless there be any confusion, is that there was not a visit to the doctor the day before the fall in relation to the back …

I prefer the business record being the consultation note by Dr Farabi and, accordingly, find that the plaintiff consulted Dr Farabi on 30 December 2012 at approximately 10:08am. That is, prior to when the accident is said to have occurred. I will deal with the consequences of that significant inconsistency below.
Returning to the evidence of the plaintiff, he was cross-examined on liability by all three counsel for the defendants. He said that, as he was leaving the Property, he could clearly see the ground in front of him [T63.30], [T64.8]. He came down the stairs leading from the front of the house and went straight across the front yard towards the parked car, taking the most direct route. He accepted in cross-examination at [T67] that there was another route which he could have taken, namely, the path that he and his family had taken upon their arrival at the Property [T67]. His intention was to walk in the most direct line to the parked car [T71.25]. He was aware of the presence of the trench and could see it without any difficulty [T72]. On a number of occasions, the plaintiff accepted that he could have taken a different path [T77 and elsewhere].
In many respects, the plaintiff’s evidence on the question of the alternate path was vague and evasive (see for example [T80.20-24]).
Ultimately, the plaintiff accepted that upon his arrival at the Property he and his family were able to enter the house by following a path which placed them, “well away from the trench” [T89.46]. Not only was the plaintiff aware of the presence of the trench but he was also aware of the potential risk which it presented. He told the Court that when they arrived at the Property he told his children to stay away from the trench and to go straight inside [T90.15]. In fact, he said that because of the trench his children “weren’t allowed to play in the front yard” [T90.20].
Overall, I regarded the plaintiff as an unreliable witness.

Mary Mallia

She recalled the occasion on 5 December 2012 when George Koolbanis attended the Property to perform some plumbing work. She said that “he done [sic] a beautiful job, I couldn’t fault him”. [T103.15].
It was necessary for some digging to take place and that occurred on 29 December 2012 (elsewhere referred to as Stage 2 of the Works). Ms Mallia was not present when Mr Vlahos undertook that task. Ms Clark was at the Property that day. Ms Mallia told the Court that she arrived home between 2.24pm and 3.15pm and noticed “a great bit [sic] hole, there was clunks of dirt on the footpath, on the driveway, on the lawn.” [T103.40]. There is a dispute about the accuracy of that description, discussed below. It was also not pleaded that the rubble was other than on the grass verge.
Ms Mallia said that she telephoned Mr Koolbanis and told him about the condition of the yard. Apparently, Mr Koolbanis was in hospital but said that he would notify the owners. Ms Mallia also said that she spoke to Mrs Sheteh on 29 December 2012.
There is a dispute as to whether those two telephone calls were made.
The first that Ms Mallia knew of the accident was when she heard Mrs Knibbs and Ms Clark scream [T104.9]. She came outside and saw the plaintiff on the ground. The plaintiff was in a different location than where he claimed to have fallen.
In cross-examination, Ms Mallia said that clumps of dirt and rocks were on the pathway adjacent to the Property’s boundary. That is not readily apparent from any of the photographs in evidence. Ms Mallia could not recall whether there was anything else on the pathway at the time of the accident.
Ms Mallia was challenged about the conversation she claimed to have had with Mrs Sheteh on 29 December 2012. She maintained that it occurred and that Mrs Sheteh was at work at the time. The fact of the conversation and the statement that Mrs Sheteh was working on 29 December 2012 were the subject of challenge including evidence from the second defendant.
Curiously, not supported by any other evidence, Ms Mallia said a number of times that the plaintiff and his family were staying with her at the Property from 27 December 2012 to 31 December 2012. Neither the plaintiff nor Mrs Knibbs agreed with that. Whilst it is not necessary to determine this matter, it cast further doubt over the evidence of the plaintiff, Ms Mallia and Mrs Knibbs.
Mr Kostopoulos, counsel for the fourth defendant, showed a photograph (Exhibit 1-D4) to Ms Mallia. That photograph was taken on 29 December 2012 by the fourth defendant after completing the trench Works and prior to leaving the Property. When asked whether the photograph represented the state of the grass at the completion of the Works, Ms Mallia responded “it was worse than that” [T110.10]. Her evidence which followed on that topic was unconvincing. Her capacity to provide a forthright answer to those series of questions may have been affected by the poor quality of the photograph (Exhibit 1D-4).
In cross-examination by Mr Perla, counsel for the third defendant, Ms Mallia’s evidence about digging taking place during Stage 1 of the Works, was challenged. Ms Mallia maintained, however, that the digging did take place on that occasion. This gives rise to yet another dispute which is of perhaps no relevance as the witness had previously stated that the lawn was left in a safe condition on 5 December 2012. It does, however, raise further questions as to her reliability.
Ms Mallia denied that, at the completion of Stage 2 of the Works, the trench had been backfilled [T113.46]. In fact, she stated that her partner, Ronald Elliott, was asked by the owner to “refill the dirt” [T113.47].
On the question of digging taking place during Stage 1 of the Works, Ms Mallia later said that, in fact, the third defendant had used a jack-hammer and identified an area of bricks and concrete adjacent to the front left side of the house as the area which was affected by that excavation. If one looks at Exhibit C-5, there appears to be disturbed concrete or rubble adjacent to the lawn and under which the gas pipe was laid. In photograph Exhibit C-6, the yellow gas pipe can be seen running up along the bricks beside the house.
Ms Mallia stated that, on 2 January 2013, Mrs Sheteh asked Ms Mallia’s partner, Mr Elliott, to backfill the trench. I pause to note that Mr Elliott was not called to give evidence, a subject which I address below.
Ms Mallia sought to corroborate her account that the rectification Works on the trench were performed by Mr Elliott by stating that it was witnessed by her neighbours, Carol and Gwen. Again, neither Carol nor Gwen were called to give evidence, a matter which I address below.
The evidence of this witness continued that Mr Elliott grabbed a shovel and “was picking up the piles of dirt and rocks off the lawn and filling the hole in” [T128.11]. She stated that it took him two days and, on the second day, he was assisted by a friend by the name of Gregory Hunt. Mr Hunt was also not called to give evidence and no explanation for that failure was provided.
Ms Mallia was asked to identify where the plaintiff was located on his back on the ground when she came out of the house. She did so by reference to a photograph (Exhibit D-1). That position was identified by a red cross. That evidence was inconsistent with the evidence of the plaintiff and Mrs Knibbs. It was inconsistent in that it placed the plaintiff on the other side of the trench in a position closer to the house than that which was identified by the plaintiff in Exhibit C-1.
The inconsistencies are irreconcilable as, when Ms Mallia saw the plaintiff, he was still on the ground and there was no evidence from any witness that the plaintiff was moved after the initial fall other than to Mr Dyde’s car which was in the opposite direction to that position marked by Ms Mallia.
Overall, I found Mrs Mallia to be an unimpressive witness. I am reluctant to accept her evidence, unless it is supported by the evidence of a more reliable witness. One or more of the witnesses not called in the plaintiff’s case who are referred to above, may have fulfilled that role.

Christine Knibbs

The plaintiff and Mrs Knibbs separated after the accident prior to trial.
Mrs Knibbs told the Court that they had gone to the Property on the day of the accident as Ms Mallia and Ms Clark were babysitting. She thought that they arrived in the afternoon but before night and that the children were going to stay overnight. This is obviously inconsistent with the evidence of Ms Mallia that the plaintiff and his family had been staying at her house from 27 December 2012. Mrs Knibbs said they unloaded the vehicle and then she, the plaintiff and Mr Dyde left the premises to go out. She was walking in front and heard the plaintiff “say some cuss words” [T139.30]. She turned around and noticed that he had fallen. Mrs Knibbs said that the plaintiff was assisted from the ground by Mr Dyde and Ms Clark.
She told the Court that they got into her father’s car and “we literally we [sic] went around the corner to the doctor’s” [T141.10]. She told the Court that, before going to the doctor’s, she took the photographs which became Exhibit B.
By reference to photograph 1 of Exhibit C (duplicated in other Exhibits) Mrs Knibbs identified the position of the white car on the street as the exact position where her father had parked that car on the day of the accident.
In the same set of Exhibits, the witness was taken to photograph 6 and identified the front of the house with her car parked in the driveway.
The witnessed stated that it was her intention to approach the white car by passing between the gas meter and the bins shown in Exhibit C-1. As the plaintiff was following his wife, it might comfortably be inferred that it was also his intended path.
In cross-examination by Mr Talintyre, counsel for the first and second defendants, Ms Knibbs told the Court that when they first arrived at the Property on the day of the accident they accessed the house by walking alongside the car and to the bottom of the steps leading to the front door. She said that nobody had any problems doing that [T177.42].
It was then suggested to Mrs Knibbs that, rather than passing between the gas meter and the garbage bins, they could have taken the same path which they took on arrival at the Property. The witness became argumentative [commencing at T177.45 and following]. Ultimately, Mrs Knibbs accepted that it was available to them to exit the Property using the same route as they used upon arrival [T178.30].
Mrs Knibbs was presented with an unmarked version of Exhibit B and asked to identify the location where her husband fell, or, more particularly, where he was located after she first turned around. The witness marked photograph 4 of what became Exhibit 2-D1/2. By comparing Exhibit C-1 to Exhibit 2-D1/2-1, Mrs Knibbs identified an area generally consistent with that identified by the plaintiff.
Mrs Knibbs was cross-examined about her husband’s attendance upon Dr Farabi. It was put to her that he saw Dr Farabi on 30 December 2012. She denied that [T184.1]. She also maintained firmly that the plaintiff saw Dr Farabi on 31 December 2012. For reasons given above, I prefer the business records generated by Dr Farabi together with the letter which precedes it in Exhibit 3-D3 to any evidence to the contrary.
Mrs Knibbs was cross-examined about the series of photographs which became Exhibit B. A discrepancy arose in the sequence of photographs, said to be taken at the same time by Mrs Knibbs. The discrepancy related to the presence or absence of the white car in the background. There was no dispute that the car was owned by Mr Dyde. Although Mrs Knibbs maintained that all photographs were taken at the same time, she was initially unable to provide any explanation for why the car had moved.
The closest Mrs Knibbs came to providing any explanation was under cross- examination [T198.19 and following]. Although initially stating that the plaintiff and Mr Dyde were sitting in the car, she later attempted to explain the absence of the car in the sequential photographs on the basis that “he probably left”. She then went on to suggest that she separately walked to the GP which was a short distance from the Property.
In my opinion, this explanation provided by Mrs Knibbs should not be accepted. It is inconsistent with the evidence of the plaintiff that they went out to dinner before consulting the GP. Mrs Knibbs’ explanation seems improbable. If the photographs took such a short time to capture then leaving Mrs Knibbs behind for her to walk to the GP, albeit close by, seems unlikely.
This results in a finding that the photographs (the originals of which are Exhibit B) were not taken at the same time.
There was no explanation in the plaintiff’s case, other than that offered by Mrs Knibbs, as to this discrepancy which casts a significant shadow over the providence of the photographs and the time at which they were taken.
Mrs Knibbs gave further evidence in cross-examination about photographs taken six months after the accident. She appeared to suggest that even those photographs would confirm the state of the lawn at the time of the accident, notwithstanding the passage of time and the evidence of Ms Mallia that Mr Elliott had completed the rectification Works over two days in January 2012. Mrs Knibbs said that she would go through her camera that night. Although it was unclear, I took that as a reference to additional photographs. No such photographs were produced.
As to the knowledge Mrs Knibbs had of any risk associated with the condition of the front lawn, she agreed in cross-examination that they were all aware that “it was quite a mess outside” [T199.35]. Further, by reason of the condition of the front yard and the risk it presented, the children were not allowed out the front whilst the work was ongoing.
It was plain from her evidence that not only did she have knowledge of the risk created by the condition of the lawn but that her husband shared that knowledge.

Jodie Clark

At the time of the plaintiff’s accident, Ms Clark was on the front verandah. This would have afforded her an elevated and clear view of the plaintiff. She said that she saw the plaintiff fall onto his back and that she then raced over to him. She assisted Mr Dyde in lifting the plaintiff to his feet.
Notwithstanding that, she was unable to recall where the fall occurred.
In cross-examination, Ms Clark, said that she recalled Mr Koolbanis coming to the Property in early December 2012 to perform Stage 1 of the Works. He fitted a temporary yellow gas line which ran along the side of the fence bordering the property to the left (again, viewing the Property from the street).
Ms Clark recalled that some person other than Mr Koolbanis attended the Property to perform Stage 2 and carried out some digging of the grass. Ms Clark said that the pathway which ran adjacent to the trench was covered in dirt and rocks but that there was nothing else on the pathway on 31 December 2012, the date of the alleged accident. This contradicts with what appears in the photographic Exhibits (Exhibit B and others) which clearly show that there were at least two bins and several chairs on the pathway which would have made it impossible for the pathway to be used by pedestrians. This further raises the question as to when the photographs were taken.
When Ms Clark was asked in cross-examination about where the plaintiff fell, she reiterated that she could not recall ([T218.40] and following).
Ms Clark rejected the suggestion that there was a safer, alternate route which could have been taken by the plaintiff, closer to the driveway, away from the trench. She told the Court that there were rocks and dirt all the way up to the driveway [T219.32]. Again, this evidence is not consistent with the photographic Exhibits (Exhibit C and others) or the evidence of the plaintiff and Mrs Knibbs.
Ms Clark was so troubled by the condition of the front lawn that she did not even try to walk on that area of the Property at the time. Instead, she would jump out of a back window of the house, go through next door and walk out that way [T219.42].
I regard her evidence as lacking credibility. She plainly exaggerated the condition of the front lawn of the Property on the day the accident was said to have occurred and I do not accept that she opted to exit the premises through a rear window in order to avoid traversing the front lawn.
In further cross-examination, Ms Clark told the Court that she helped the plaintiff to his feet and asked if he was okay. He said that he was fine [T227.4].
Ms Clark did not give any evidence about the plaintiff’s attendance upon Dr Farabi, consistent with the plaintiff not attending Dr Farabi immediately following the accident.

Samia Sheteh

Whilst the evidence of Ms Sheteh was, at times, hard to follow, I am satisfied that she was doing the best she could to recall the events of more than six years earlier as to matters which, for her, were routine and about which she had no particular reason to remember.
What was clear, however, was that Mrs Sheteh was notified by Ms Mallia of a gas leak. In response to that complaint, Mrs Sheteh arranged for Mr Koolbanis to attend the premises to fix the gas leak.
The first and second defendants had retained Mr Koolbanis on prior occasions without any issue.
After completing the work, Mr Koolbanis contacted Ms Sheteh to tell her that the work had been completed.
Ms Sheteh recalled a subsequent telephone call with Mr Koolbanis regarding the Property at which time Mr Koolbanis advised her that he could not do the job but would arrange for somebody else to attend to it.
Without referring to a date, Mrs Sheteh gave evidence that she went out to the Property to inspect the work. She said that although she could see that a trench had been dug, it had been covered and fixed. She was not aware that there was any problem for the safety of anybody walking in or around that area (T233.30].
Mrs Sheteh told the Court that upon attending the Property, she noticed a yellow tape around the work area. Her evidence regarding the yellow tape was confusing [T233.45-T234.7 and also at T235] and was so imprecise as to not permit any reasonable finding to be made.
Mrs Sheteh is the only witness in the case who gave any evidence that there was any tape in the area where the Works were completed. Given that the gas line which ran from the metre to the house was yellow I conclude that what she in fact was referring to was the gas line not some type of barricade or guard.

In cross-examination, Mrs Sheteh said that when she attended the Property after 31 December 2012 in order to collect the rent, she was told that someone had fallen. She arranged for Mr Koolbanis to attend the Property with her. In terms of the safety or otherwise of the area where the work was performed, she did not see any problem.
Relevant to the suggestion made by Ms Mallia that she telephoned Mrs Sheteh on 29 December 2012 and was told by her that she was at work at the time, Mrs Sheteh told the Court that she ceased work in or about mid December and did not return until around the 10th or thereabouts of January [T245]. This was the usual holiday period for her employment.
Specifically, Mrs Sheteh denied that she received a telephone call from Mary to complain about the digging that had been done at the Property [T245.42].
Mrs Sheteh further denied that she was notified by Ms Mallia that there had been some digging work done to the Property and it was a mess [T246.31]. The witness specifically denied the fact and content of the conversation said to have occurred between Ms Mallia and herself on 29 December 2012 [T249].
In re-examination, Mrs Sheteh made it perfectly clear that she would never have been at work between Christmas and New Year’s Eve [T259.40].

George Koolbanis

Mr Koolbanis was a qualified plumber of some 15 or 16 years’ experience. He registered his own plumbing business called Lancelot Plumbing in about 2005 or 2006. The legal form of the business was a partnership with his wife.
Mr Koolbanis stated that, at all material times, he did not have any employees “on the books”. If additional assistance was required he would retain sub-contractors.
He recalled that in early December 2012, he attended the Property at the request of Mrs Sheteh. After an initial investigation, he determined that there was a gas leak and, in fact, the gas main had been shut down by the gas company.
When he attended in early December 2012, he decided the best approach to the situation was to restore gas to the Property straight away. He ran a temporary gas line along the fence to the house. The line was described as yellow [T263.40].
Mr Koolbanis engaged Nick Vlahos to perform the excavation work in order to bury the new gas line. Mr Vlahos was a builder and Mr Koolbanis had previously engaged him on other jobs. In fact, Mr Vlahos had, on occasions, engaged Mr Koolbanis to work for him [T264.40]. When Mr Koolbanis was asked about Mr Vlahos’ competency and skills, he described them as “perfect” [T264.44 and following].
In fact, the work which had previously been undertaken by the fourth defendant on behalf of the third defendant included excavation and backfilling. There had never been any problems with the work which he performed and, in the opinion of Mr Koolbanis, Mr Vlahos was competent and qualified to perform such tasks [T265.45].
Mr Koolbanis said Mr Vlahos was only ever engaged as a sub-contractor, not an employee. Mr Vlahos would submit an invoice which Mr Koolbanis would pay.
In relation to the work performed by Mr Vlahos at the Property, he explained that the job involved excavation from the gas meter to the house. Mr Koolbanis said that he told Mr Vlahos to “level it out” and “make it safe” [T266.38].
After explaining the job which was to be done, Mr Koolbanis left Mr Vlahos to complete it. Later that day, Mr Koolbanis asked Mr Vlahos “how did you go” and Mr Vlahos replied “perfect”. Mr Koolbanis then asked, “Did you make it safe” and Mr Vlahos replied, “Yeah, it’s flat mate, there’s nothing to worry about”.
Mr Koolbanis was then contacted by Mrs Sheteh in early January 2013. He was informed that somebody had fallen over the trench and he was asked to return to the Property. Mr Koolbanis then visited the Property with Mrs Sheteh. In respect of the condition of the front lawn of the Property when inspected by him with Mr Sheteh, Mr Koolbanis stated:

It looked good to me. It looked like – it didn’t look that, it didn’t look that bad at all.
[T267.48].

Mr Koolbanis said that the area looked safe to him.
Mr Koolbanis then gave evidence about further works which he undertook at the Property in January 2013. On one such occasion, a conversation took place between Mr Koolbanis and a person I find was Ms Clark in which the latter identified the location where the plaintiff fell. According to Mr Koolbanis, Ms Clark stated “he fell at the steps”.
In cross-examination, Mr Koolbanis was shown Exhibits B and D. He rejected the suggestion that those photographs illustrated the condition of the Property, when he returned to inspect it. Whilst accepting that the photographs revealed a dangerous situation, he denied that represented the condition of the front lawn when he saw it after the plaintiff’s accident was said to have occurred.
Mr Koolbanis was cross-examined by counsel for the plaintiff about a telephone call said to have been made by Ms Mallia to Mr Koolbanis on 29 December 2012. Whilst Mr Koolbanis acknowledged that he received many telephone calls from Ms Mallia, he denied he received a telephone call on 29 December 2012 about the state of the Property.
Although having no specific recollection of the alleged telephone conversation on 29 December 2012, Mr Koolbanis denied that it occurred. He stated that had he received such a call, he would have attended to rectify the problem at that time.
A feature of the conversation which allegedly took place between Ms Mallia and Mr Koolbanis on 29 December 2012 was that the latter stated that he was in hospital. Mr Koolbanis in fact denied that he was in hospital on 29 December 2012 and told the Court that he went to hospital before Christmas and came out on Christmas Eve. It would follow that, if the conversation took place between the two of them at a time when Mr Koolbanis was in hospital, then that conversation would have taken place prior to Christmas Eve. This evidence adds to the confusion and sheds further doubt upon the reliability of the evidence of Ms Mallia. There was no challenge to the evidence that Mr Koolbanis was in hospital prior to Christmas and came out on Christmas Eve.
Mr Koolbanis was cross-examined at some length by Mr Kostopoulos, counsel for the fourth defendant, in relation to other works which had been performed by the fourth defendant on behalf of Mr Koolbanis. This evidence was directed to establishing that the fourth defendant was an employee or deemed employee of the third defendant who was then, in turn, responsible vicariously for the negligence of the former. I do not intend to refer in any detail to that evidence but will determine the question of employment below.
Finally, Mr Koolbanis told the Court that he left Mr Vlahos at the Property in the morning to perform Stage 2 of the Works. Mr Koolbanis said that he then came back to lay the pipe before leaving Mr Vlahos to backfill the trench. There is a dispute as to whether it was Mr Koolbanis or Mr Vlahos who placed the pipe into the trench. I do not find it necessary to determine that question as it is a matter which is irrelevant to the occurrence of the accident. The evidence clearly established that it was the fourth defendant who dug and backfilled the trench and that is the work giving rise to the risk complained of by the plaintiff.

Nick Vlahos

Prior to the accident, Mr Vlahos had completed a course at the Master Builders Association and had worked for about two years as a labourer with a construction company.
He met Mr Koolbanis on a job and, after engaging in small talk, it became apparent that Mr Vlahos may have an opportunity to work for Mr Koolbanis as a labourer.
Some considerable evidence was given (commencing at [T304]) in an attempt to demonstrate that the relationship between Mr Vlahos and Mr Koolbanis gave rise to that of either employment, deemed employment, servant or agent. Mr Vlahos told the Court that he considered himself to be an employee. Mr Koolbanis denied that and said that Mr Vlahos was an independent sub-contractor. This factual and legal dispute is determined below.
On 29 December 2012, Mr Koolbanis telephoned Mr Vlahos and told him that there was a job to be done at the Property (Stage 2 of the Works). They agreed to meet out there. Mr Vlahos met Mr Koolbanis on site and the latter showed the former where the trench had to be dug from the gas meter at the front of the property to the bottom of the staircase. Mr Vlahos estimated a distance of 15 metres.
He told Mr Koolbanis that he did not have any tools with him as he was not expecting to work that day. Mr Koolbanis provided him with a shovel which he had in the car.
When asked what happened during the day, Mr Vlahos told the Court that he dug the trench, put the pipe into the ground and then backfilled it.
There was some evidence-in-chief given about the rubble or broken concrete at the base of the stairs adjacent to the Property. I do not intend to refer further to that evidence as the plaintiff’s case is that he fell at a different location to that where the concrete had been disturbed.
Mr Vlahos was asked in chief questions about the state of the front yard at the Property when the work was completed on 29 December 2012. He stated:

Well where the trench was I left it level, I stomped it down to make sure there was no, bumps and anything, no rubble in the way for anyone to trip over, but the rest of the yard had bikes and toys and everything all over it.
[T310.15].

Mr Vlahos went on to say that the surface of the lawn in the area where the trench had been dug was “pretty flat”.
He then telephoned Mr Koolbanis and told him that he had finished the job. He sent Mr Koolbanis a photograph of the area where the work had been performed (Exhibit 1-D4). Mr Vlahos then left the Property and did not return until 4 January 2013, after he was informed of the plaintiff’s accident.
On that occasion, Mr Vlahos recalled a girl coming out from the house (Ms Clark). He asked her, “where did they fall?” His evidence was that she pointed, indicating the bottom of the staircase [T311.35]. Mr Vlahos marked a photograph (Exhibit 1-D4) indicating the area where it was indicated by Ms Clark that the plaintiff fell.
Admitted into evidence were two photographs taken by Mr Vlahos on 4 January 2013 (Exhibit 3-D3, pages 2 and 3). They show the disturbed concrete at the bottom of the stairs and were presumably taken as that was the location of the fall identified by Ms Clark. Plainly that evidence is inconsistent with the evidence of the plaintiff, Ms Mallia and Mrs Knibbs.
Mr Vlahos gave some evidence-in-chief about a statement provided to an investigator for the third defendant. It was suggested by Mr Vlahos that he was told by Mr Koolbanis to tell the investigator that he (Mr Vlahos) dug the trench and then Mr Koolbanis buried the pipe before Mr Vlahos backfilled it. His response to that was:

I’ll them exactly what I did, that I dug it up, I put the pipe in the ground and that I backfilled it.
[T314.2].

The question of who placed the pipe into the trench was the subject of conflicting evidence between Mr Koolbanis and Mr Vlahos. As previously discussed, I do not consider this inconsistency relevant other than to the question of the reliability of the respective witnesses. It was not the placement of the gas pipe into the trench which caused the plaintiff to fall. The plaintiff’s case is that it was the condition of the Property after completion of Stage 2 of the Works that caused the fall. Mr Koolbanis and Mr Vlahos are at one as to who performed that work. That is, Mr Vlahos.
Mr Vlahos was then cross-examined. Initially, he was cross-examined as to the question of whether he was an employee or an independent contractor. As stated, I will deal with that question below.
He was then questioned about the statement which he provided in February 2016. I note that that statement was initially provided over the telephone to an investigator who presumably asked questions which were answered by Mr Vlahos. The question and answer series was transformed into a narrative which formed the statement. It is common knowledge that in the process of translating a question and answer record of interview into a narrative statement, matters can be misrepresented or not stated correctly. It is for that reason and also the fact that the statement was provided some three years after the event that I place no reliance upon it and draw no adverse conclusion as to the reliability of Mr Vlahos concerning any discrepancies between his oral evidence and the contents of the statement.
Having observed Mr Vlahos give evidence, I am satisfied that it was in fact he who dug the trench, laid the pipe and backfilled it. Such a finding is also consistent with evidence of other witnesses to the effect that Stage 2 of the Works was not done by Mr Koolbanis.
In cross-examination, Mr Vlahos described the process adopted by him in backfilling the trench. It is plain that his evidence establishes that he attempted to make the ground surface as level as possible. Having put the dirt back into the trench and compacting it as best he could, he jumped on it [T237.25].
Generally, I found Mr Vlahos to be an impressive witness. He conceded errors in his written statement but maintained that his evidence under oath was accurate. It is his evidence under oath which I prefer.
In cross-examination by counsel for the plaintiff, Mr Vlahos repeatedly denied that the front lawn of the Property was left in the state depicted by the photograph said to be taken by Mrs Knibbs (Exhibit B and others). Further, Mr Vlahos agreed that he was aware of the requirement to leave the premises in a safe state after he finished the work [T333.40]. The photograph which he took on 29 December 2012 and sent to Mr Koolbanis was sent in order to show that he left the premises in a safe state [T334.31].
When cross-examined about there being rubble remaining in the area where the trench was dug, Mr Vlahos said that it was level.
While he conceded that there was some disturbed concrete in the area of the pathway under which the pipe was fed and that was unsafe, that evidence has no bearing upon the plaintiff’s case. He said that he traversed that area of the Property (at the bottom of the stairs) without incident.
Mr Vlahos was shown the photograph said to be taken by Mrs Knibbs on 31 December 2012. He insisted that he did not leave the premises like that [T338.17]. When it was put to him that he had left the Property in that state, he denied it [T338.35 and 45]. I accept his evidence.
Mr Vlahos was also cross-examined about the conversation with Mr Koolbanis on 29 December 2012 in which the latter said that he would go back and “do it properly”. Mr Vlahos took that as a reference to the loop in the gas line in the vicinity of its connection to the gas meter which required tidying up [T341.5]. I accept that explanation.

finDINGS AS TO DISPUTED FACTS

In respect of the primary matters in dispute referred to above, I make the following findings:

(a) Condition of the Property on 29 December 2012

The plaintiff’s case relies upon the evidence of the plaintiff, Ms Mallia, Mrs Knibbs and Ms Clark in respect of this matter. I have raised above a number of matters which cause concern in accepting the evidence of those witnesses.
Ms Mallia claimed that the Property was a mess following completion of Stage 2 of the Works on 29 December 2012. She referred to clumps of dirt on the footpath, driveway and lawn as well as a big hole [T103.40]. This was inconsistent with the evidence of the plaintiff and Mrs Knibbs who safely managed to enter the Property.
Ms Clark gave evidence that, after the Works were completed on 29 December 2012, the pathway adjacent to the trench was covered in dirt and rocks and the condition of the front yard was such that she preferred to take a safer option of leaving the premises by jumping out of a back window and passing through the neighbouring property.
The third piece of evidence relied upon by the plaintiff as to the condition of the Property after the completion of Stage 2 of the Works are the photographs said to have been taken by Mrs Knibbs on 31 December 2012. The plaintiff’s case was that those photographs depicted the state of the Property at that time. Significant concern has arisen as to the providence of those photographs, including the date on which they were taken.
The defendants relied upon evidence from four sources.
First, the evidence of Mr Sheteh, referred to above.
Secondly, the evidence of Mr Koolbanis, referred to above.
Thirdly, the evidence of Mr Vlahos, referred to above.
Fourthly, the photograph taken by Mr Vlahos and sent to Mr Koolbanis after the completion of the Works on 29 December 2012 (Exhibit 1-D4).
The evidence of Ms Sheteh, Mr Koolbanis and the photograph are relied upon primarily to corroborate the oral evidence of Mr Vlahos that the Property was left in a safe condition. Mr Koolbanis did not return to the Property until early January 2013 so his personal observations of the condition of the Property were not made until after the plaintiff’s accident is said to have occurred. Even then, when the Property was in the same state as the date of accident, Mr Koolbanis said that the area looked safe.
In considering the photographic evidence, I am mindful of their limitation (see for example, Blacktown City Council v Hocking [20080] NSWCA 144 [170]-[172]. I do not use them as the sole source of evidence regarding the state of the Property. The weight attributed to them is determined by the reliability of other evidence both as to when they were taken and what they purportedly showed.
Whilst the photograph taken by Mr Vlahos (Exhibit 1-D4) is not as clear as it could have been, it is plain by comparison of that photograph to those taken by Mrs Knibbs (Exhibit B) that the latter series of photographs depict the condition of the Property in a different state to that which the earlier photograph shows.
There are plainly inferences available which might be drawn as to how the condition of the Property deteriorated between 29 December 2012 and 31 December 2012, I am of the view, however, that is not necessary to resolve that controversy, particularly given the concerns over the photographs taken by Mrs Knibbs.
Instead, I prefer the evidence of Mr Vlahos, corroborated by his own photograph, his conversation with Mr Koolbanis on the day the Works were completed and the observations of the Property made by Ms Sheteh, Mr Koolbanis and Mr Vlahos in early January 2013.
Accordingly, I find that the Property was left in a flat, level and safe condition upon completion of Stage 2 of the Works on 29 December 2012. In view of this finding, the plaintiff’s case must fail.

(b) Whether the photographs taken by Mrs Knibbs depicted the state of the lawn at the completion of Works on 29 December 2012

For the reasons above, I find that the photographs taken by Mrs Knibbs (Exhibit B) do not depict the state of the Property as at the completion of Stage 2 of the Works on 29 December 2012.
In view of this finding, the plaintiff’s case is uncorroborated by any objective or other evidence. All of the witnesses in the plaintiff’s case relied upon the photographs in recalling the condition of the Property.

(c) When those photographs were taken

For reasons discussed above, there is considerable doubt as to when the photographs relied upon in the plaintiff’s case (Exhibit B) were in fact taken. There is an obvious discrepancy in the photographs in that the white car owned by Mr Dyde appears in the background of some but not others.
For that reason and for other reasons given above, I cannot be satisfied as to when the photographs said to be taken by Mrs Knibbs were in fact taken. I find that the plaintiff has not discharged his onus of establishing that those photographs depicted the state of the Property on 31 December 2012.

Given this uncertainty and the earlier finding as to the state of the Property after the completion of Stage 2 of the Works, the plaintiff’s case cannot succeed.

(d) Where the plaintiff slipped and fell

There are competing versions as to this matter. The first is the evidence given by the plaintiff and best represented by the marking of photograph number 1 in Exhibit C.
To a large extent, the place of the fall identified by the plaintiff was corroborated by the evidence of Mrs Knibbs. When she was called upon to mark a copy of the same photographs with a red cross and a blue circle, Mrs Knibbs marked photograph number 4 in Exhibit 2-D1/2. That appears to be, in general terms, consistent with the area identified by the plaintiff.
The second possible location of the plaintiff’s fall arose from the evidence of his mother, Ms Mallia. Although she did not witness the fall, when she arrived at the front of the house, she saw the plaintiff lying on his back. Using photograph number 1 in Exhibit D, Ms Mallia marked with a red cross the point where the plaintiff was lying on his back after his fall. This is inconsistent with the evidence of the plaintiff and Mrs Knibbs as to where the fall occurred and there was no suggestion that the plaintiff had been moved prior to Ms Mallia’s arrival on the scene.
The third category of evidence came from what was said by Ms Clark. Although in evidence she said that she saw the fall, she was unable to recall where it occurred. There was evidence of the conversation she had with Mr Vlahos and Mr Koolbanis in early January 2013 at which time she stated that the plaintiff fell in the area of the disturbed cement at the base of the stairs to the house. This was marked on Exhibit 1D-4 with a black circle.
Unlike Mrs Knibbs and Ms Mallia, Ms Clark actually witnessed the fall. Whilst I have considerable concerns regarding her evidence, the discrepancy between what Ms Clark said to Mr Vlahos and Mr Koolbanis as to the location of the fall and the plaintiff’s evidence has not been explained and is irreconcilable. If I were to accept what was said by Ms Clark then the plaintiff’s claim would fail.
The only person who perhaps could have shed light on the question was Mr Dyde whom the plaintiff chose not to call. Whilst some explanation was attempted to be given for that fact, I regard Mr Dyde as an essential witness whose absence permits to an inference against the plaintiff that his evidence would not have assisted the plaintiff’s case. To be specific, I find that the evidence of Mr Dyde would not have assisted the plaintiff as to the location of his fall.
The significance of the evidence on this topic is substantial. It follows that the plaintiff failed to satisfy his onus of establishing the location of his fall by reference to credible evidence. That failure precludes the Court from making any assessment as to breach of duty of care by any of the defendants let alone what precautions ought to have been taken to minimise or avoid the risk of injury.

(e) When did the accident occur

Assuming that the accident did in fact occur, and accepting that the plaintiff consulted Dr Farabi after the fall, it follows that the accident must have occurred prior to the consultation.
For the reasons given above, I prefer the business record of Dr Farabi together with his recollection as revealed by correspondence with the plaintiff’s solicitor and find that if an accident did occur, it happened on or before 30 December 2012.
It follows, that again, the plaintiff failed to discharge his onus of proof.

(f) When did the plaintiff consult Dr Farabi

I find that the plaintiff consulted Dr Farabi on just one occasion being on 30 December 2012 at 10:08am. In making that finding, I rely upon Exhibit 3-D3 pages 24 and 25.
It was open to the plaintiff to attempt to displace that finding by calling Dr Farabi in an effort to explain this discrepancy. I find the plaintiff’s failure to call Dr Farabi gives rise to an inference that Dr Farabi’s evidence would not have assisted the plaintiff’s case which provides further support for the conclusions which I have reached.

(g) Whether a phone call was made by Ms Mallia to the second defendant on 29 December 2012

A prominent feature of the evidence of Ms Mallia in this respect is that the second defendant told her that she was at work when the phone call was made. The second defendant was adamant that she did not work between Christmas and the New Year. In addition, the second defendant also specifically denied, in terms, of the conversation put to her that was said to have taken place with Ms Mallia.
In respect of this disputed conversation, I accept the evidence of the second defendant and find that a phone call to the second defendant was not made on 29 December 2012.

(h) If so, the content of the conversation

Given the finding that the conversation did not occur, it is unnecessary to make any finding in relation to the content of same.

(i) Whether a phone call was made by Ms Mallia to Mr Koolbanis on 29 December 2012

Ms Mallia asserted that when that conversation took place, Mr Koolbanis told her that he was in hospital. The unchallenged evidence of Mr Koolbanis was that he was in hospital prior to Christmas, being discharged on 24 December 2012. It follows that Mr Koolbanis was not in hospital on 29 December 2012 which, together with Mr Koolbanis’ denial of the fact, casts considerable doubt over whether or not the phone call was in fact made.
I prefer the evidence of Mr Koolbanis to that of Ms Mallia. He was a more impressive witness with a better recollection of events. Accordingly, I find that Ms Mallia did not contact Mr Koolbanis on 29 December 2012 in relation to Stage 2 of the Works.

(j) If so, the content of that conversation

In view of the preceding finding, it is unnecessary to deal with this matter.

(k) Whether, at the time of the plaintiff’s accident, the state of the Property created a risk of injury

Having accepted the evidence of Mr Vlahos for the reasons provided above, I find that, after the completion of the Works on 29 December 2012, the Property was left in a safe condition. I find that there was no foreseeable, significant risk of injury.
The uncertainty as to the date of the plaintiff’s accident and the date that the photographs were taken by Mrs Knibbs (Exhibit C) creates a degree of uncertainty which does not permit the Court to resolve the question as to when the accident occurred.
I find that the condition of the Property in the area where the Works were performed was the same on 29 December 2012 as it was when it was re-visited by Mr Koolbanis and Mr Vlahos in early January 2013. For abundant clarity, I find that at all possible material times, the condition of the Property in the area where the Works had been completed did not give rise to a foreseeable or significant risk of injury such that a reasonable person in the position of the defendants would have taken precautions (s5B CLA).

Witnesses not called by the plaintiff

There were at least six witnesses who may have assisted the plaintiff’s case as to matters in dispute who were not called and whose absence was not satisfactorily explained. They are:

Dr Farabi, GP;

Mr Dyde;

Mr Elliott;

Mr Hunt;

Gwen (the neighbour); and

Carol (the other neighbour).

I am asked to draw inferences against the plaintiff by reason of the plaintiff’s failure to call those witnesses or otherwise satisfactorily explain their absence.
Drawing inferences adverse to a party ought to be approached with caution. It cannot be used to fill lacunas in a defendant’s case. I am mindful of what Kitto J said in Jones v Dunkel (1959) 101 CLR 298:

… It was right enough to point out, in effect, that the evidence given might be the more readily accepted because it had been left uncontradicted, and that the omission to call Hegedus as a witness could not properly be treated as supplying any gap which the evidence adduced for the plaintiff left untouched. But what should have been added, and not being added was in the circumstances as good as denied, was that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The jury should at least have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which, as I have explained, I consider was open on the plaintiff’s evidence. …

The use to which I put the plaintiff’s failure to call available witnesses is consistent with the observations in Wigmore on Evidence (3rd Edition (1940) Vol 2 ss289, 290) extracted by Windeyer in Jones v Dunkel (page 321). That is, that unless a failure to give evidence is explained then it may lead rationally to an inference that his/her evidence would not help the party’s case (see also Payne v Parkes (1976) NSWLR 191).
That is the extent to which the inference may be used. In practical terms where the defendants have led contrary evidence to the plaintiff’s case, the Court may more readily accept the defendants’ evidence where what may have been evidence supportive of the plaintiff was not called without explanation.
There is evidence in the plaintiff’s case (most significantly as to the state of the Property) which is directly at odds with evidence called by the defendants. To the extent that it is possible and rational to do so I draw inferences due to the failure to call or adequately explain the absence of witnesses whose evidence could have supported the plaintiff’s case.

Dr Farabi

I have dealt elsewhere in these reasons with the relevance of Dr Farabi’s evidence. The documentary material from Dr Farabi (Exhibit 3-D3, pages 24 and 25) permit a finding that the plaintiff consulted Dr Farabi on only one occasion, namely 30 December 2012 at 10.08am.
I infer that any oral evidence from Dr Farabi to overcome this discrepancy would not have assisted the plaintiff’s case and, for that reason, more comfortably accept Dr Farabi’s notes as evidence of the fact.
It follows then that the plaintiff saw Dr Farabi on one occasion (30 December 2012) and made no mention of the accident. In the words of plaintiff’s counsel, the plaintiff’s case falls down.

Mr Dyde

Mr Dyde was walking behind the plaintiff when the plaintiff fell. He could have given evidence as to a number of matters including the following:

where the fall occurred;

the condition of the surface of the lawn on the day of the accident;

the date of the accident;

the taking of photographs by his daughter, Mrs Knibbs; and

attending on Dr Farabi.

Evidence was led from Mrs Knibbs [T140.31] as to some memory problems from which Mr Dyde now suffers. Mrs Knibbs said that he was suffering from early stages of Alzheimer’s and when asked whether his memory was reliable her response was “depending on what day”.
The failure to call this important witness was raised with counsel for the plaintiff in addresses [T414.17]. It then became clear for the first time that Mr Dyde in fact attended Court for the purpose of giving evidence. Mr Reimer told the Court that he had no notice before the day of the hearing on which he proposed to call Mr Dyde that he would have any difficulty in giving evidence. This would suggest that any problems he had were not significant. The Court was told that a decision was made by the plaintiff’s solicitor not to call Mr Dyde [T414.45].
I do not regard the evidence of Mrs Knibbs nor the remarks from the Bar Table as sufficient to explain the absence of this witness. Medical evidence as to his unreliability ought to have been obtained or, alternatively, he ought to have been called and his memory either exhausted or demonstrated to be unreliable.
The plaintiff’s decision not to call Mr Dyde permits the Court to draw inferences adverse to the plaintiff as to those matters referred to above.
Accordingly, I find that the evidence of Mr Dyde would not have assisted the plaintiff’s case on matters in dispute and about which he could have provided evidence and I make findings as to those matters with greater ease.

Mr Elliott

Mr Elliott was Ms Mallia’s partner at the time of the incident. A dispute arose on the facts as to whether or not the second defendant asked Mr Elliott to complete the trench work in early January 2013. This was disputed as it was the defendants’ case that Stage 2 of the Works had been adequately and safely completed by Mr Vlahos on 29 December 2012. I have made a finding to that effect. I am comforted in making that finding by the plaintiff’s failure to call Mr Elliott, who presumably, could have contradicted the evidence of Mr Koolbanis, Mr Vlahos and Ms Sheteh.
In addition, Mr Elliott could have given evidence as to the state of the front lawn on or around the date of the accident. The plaintiff’s failure to call that witness permits the Court more readily to find that the front lawn was in the state described by Mr Vlahos, Mr Koolbanis and Ms Sheteh as depicted in the photographs taken by Mr Vlahos and not the state described by the plaintiff and his other witness or the photographs taken by Mrs Knibbs.

Mr Hunt

It is said that the remedial Works undertaken by Mr Elliott were performed over two days and on the second day he was assisted by his friend, Mr Hunt. Mr Hunt was not called. Again, this permits the Court more readily to reach the conclusions regarding the condition of the Property at all material times. I infer that Mr Hunt’s evidence would not have assisted the plaintiff’s case.

Gwen (Ms Mallia’s neighbour)

When it was suggested to Ms Mallia by counsel for the third defendant that her partner did not backfill the trench [T127.35] Ms Mallia’s response was that he did and there were witnesses to it. She then identified her two next door neighbours, Carol and Gwen as witnesses to that fact.
Gwen was not called to give evidence and no explanation was provided.
I find that the evidence of Gwen would not have assisted the plaintiff’s case, permitting, more comfortably, the Court to draw the inferences and make the findings that have been made as to the state of the premises at the completion of the work on 29 December 2012 and as to any work done by Mr Elliott.

Carol (the other neighbour)

For the same reasons, I draw an inference adverse to the plaintiff in relation to his failure to call Carol to corroborate that remedial Works were performed by Mr Elliott and generally as to the state of the Property at the completion of Stage 2 of the Works on 29 December 2012.
The plaintiff’s unexplained failure to call this witness adds to the weight of evidence against the plaintiff’s case. I find that the Property was safe after Stage 2 of the Works was completed and that neither Mr Elliott nor Mr Hunt performed any work.

LIABILITY OF THE DEFENDANTs

General Principles

The CLA applies to the determination of liability in the present case. It governs questions of breach of duty and causation leaving the question of the identification and scope of the duty a matter to be determined according to common law principles (Mamo v Surace [2014] NSWCA 58 at [48]).
The nature of the relationship between the plaintiff and each of the defendants is one of the most important features in determining whether a duty of care was owed and its content.
I am of the opinion that each of the defendants owed the plaintiff a duty of care. In respect of each of the defendants, I have identified and characterised the nature and extent of that duty.
In considering whether or not each of the defendants breached their respective duties of care to the plaintiff, I have had regard to the general principles set out in s5B of the CLA (extracted below).
For reasons which follow, I find that none of the defendants breached their duty of care to the plaintiff.

The First and Second Defendants

The plaintiff’s claim against the first and second defendants was brought in negligence. As observed earlier in these reasons, the plaintiff, somewhat curiously, pleaded the same particulars of negligence against all four defendants notwithstanding their differing relationships. An attempt was made in the course of the addresses to distil the cases brought and maintained against the respective defendants (see [T402-416]).
In relation to the duty of care owed by the first and second defendants to the plaintiff, the High Court has considered the content and extent of that duty in many cases but most notably in Northern Sandblasting Pty Limited v Harris [1997] HCA39; 188 CLR 313 (Northern Sandblasting). Northern Sandblasting of course overturned the previous position at common law as stated in Cavalier v Pope [1906] AC 428. The landlord was under no duty of care to persons by reason of the landlord’s failure to keep the premises in repair.
In Northern Sandblasting, Dawson J (with whom Gummow J agreed) stated (at [343]) that the landlord’s duty of care is:

That which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in a particular instance depends upon the circumstances of the case.

That statement was later adopted with approval by four members of the High Court in Jones v Bartlett [2000] HCA 56; 205 CLR 166 (Bartlett).
In Bartlett, three Justices of the majority favoured a duty expressed in terms of one “to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of duty to be governed by the circumstances of the case” (per Gleeson CJ 184 [56]-[58], per Gummow and Hayne JJ at 213 [168]-[169]). (see also Mason P in Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 at [4]-[5] (Sakoua)).
In Sakoua, Mason P quoted with approval (at [9]) a passage from the judgment of Hodgson JA (with whom Sheller JA and Bryson JA agreed) in Ahluwalia v Robinson [2003] NSWCA 175 at [23] as follows:

… Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises safe as reasonable care can make them. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. (Emphasis added).

The landlords in the present case did not dispute that a duty of care was owed. They argued that the nature and extent of the duty of care had to be determined by the circumstances of the case. This is not a case of latent defect or a question of inspecting rented premises before the commencement of the lease. This case is of a type where, it is said by the plaintiff, a hazard was created during the currency of the lease by the manner in which Stage 2 of the Works were performed.
Having regard to the circumstances which exist here, the duty owed by the first and second defendants to the plaintiff was a duty to take reasonable steps to ensure that the Works were completed safety and without creating a risk of injury to those who might enter upon the Property, such as the plaintiff.
Counsel for the plaintiff appeared to ultimately accept that the duty of care owed by the first and second defendants was delegable [T408.40].
It is plain from Northern Sandblasting that such a duty is delegable.
In Northern Sandblasting, Brennan CJ at [579] referred to with approval, a rule arising from comments made by Dixon J in Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co-Operative Assurance Co of Australia Limited [1931] HCA 3; (1931) 46 CLR 4:

when the plaintiff arrived at the Property on the day of the accident he noticed the trench and that is why he did not go over that side (of the front yard) but was trying to stay to the left of the trench [T81.22];

when they arrived at the Property, the kids were in the car [T89.32];

on arrival, the plaintiff was looking after the kids so that they wouldn’t fall into the trench [T89.35];

when they jumped out of the vehicle on arrival, they walked beside the vehicle and up onto the stairs “cause that’s the direction they needed to go, they were well away from the trench” [T89.45];

the plaintiff may have told the children to stay away from the trench [T90.10];

he told them to go straight inside (of the house) [T90.15];

he did not allow the children to play in the front yard because of the trench [T90.20];

he was worried about them tripping over and cutting themselves [T90.36].

Based upon that evidence, I make the following factual findings:

that from the moment the plaintiff arrived at the Property, he was aware of the Works that had been undertaken and the trench which had been dug and backfilled;

that, prior to the alleged accident, the plaintiff was aware of the risk created by the condition of the front yard in the area where the Works had been performed;

that it was apparent to the plaintiff that the trench and its immediate surrounds presented a hazard (accepting for the purposes of this analysis the case put by the plaintiff);

that the plaintiff left the house via the front steps and proceeded to walk along the front lawn in the area of and beside the trench with a view to leaving the Property at a point between the gas meter and the garbage bins, best illustrated by Exhibit C-3;

that there was an alternate route which the plaintiff could have taken and which would have avoided exposing himself to the risk of injury;

the alternate route is on or beside the driveway as best shown in Exhibit C-4;

that, rather than take that alternate route, the plaintiff chose the route which led most directly to the white car in which he was intending to travel;

that, in so doing, the plaintiff placed himself in a position where he was exposed to a risk which was foreseeable to him and, indeed, which he had foreseen;

that the plaintiff failed to take available precautions against that risk of harm;

In determining contributory negligence, it is necessary to have regard to s5R and 5S of the CLA.
For the purpose of 5R, I find that the plaintiff failed to meet the standard of care of a reasonable person in his position and that he was aware of both the risk and the danger which it presented.
The principles that are applicable in determining whether a person has been negligent also applies to determining contributory negligence (s5R(1)). In adopting that approach, and having regard to the provisions of s5B of the CLA, I find that the risk was not only foreseeable to the plaintiff but known to him, that the risk of injury was not insignificant and that a reasonable person in the position of the plaintiff would have taken the precaution of avoiding the area of disturbed earth in the vicinity of the trench.
I have had regard to the approach to be adopted in assessing contributory negligence as stated by the High Court in Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10].
Furthermore, I find that the plaintiff’s own negligence was a necessary condition of the occurrence of the harm so as to satisfy the test of causation provided by s5D.
It then follows that it is necessary to make a reduction of the plaintiff’s claim on account of his own negligence to the extent that it is just and equitable to do so. Having regard to the plaintiff’s knowledge and election to voluntarily expose himself to the risk of injury which eventuated I find contributory negligence at 100% so as to defeat the plaintiff’s claim entirely.

ASSESSMENT OF DAMAGES

In the event that I have erred in any of the findings leading to the orders I make on the question of liability, I now turn to the question of damages.

Background

The plaintiff was born on xxxxxxx 1986 and is currently 31 years of age. The accident occurred when he was 26 years old.
The chronology (Exhibit A) was prepared on behalf of the plaintiff. Prior to giving evidence he read and adopted it. There was reference in that document to a number of prior medical conditions. None of them were particularly significant.
Absent from the chronology was reference to prior low back complaints about which the plaintiff was cross-examined. The plaintiff denied any prior back complaint and said that he was in good health, however the evidence established the following matters:

on 6 August 2007, the plaintiff consulted Dr Parmar, GP, reporting a history of back pain and a history of a tender low back (Exhibit 3D-3, page 9);

on 7 March 2008, the plaintiff attended upon Dr Parmar, GP, complaining of pain in the right thoracic area (Exhibit 3D-3, page 10);

on 10 March 2008, the plaintiff again attended upon Dr Parmar, GP, complaining of pain in the right shoulder blade (Exhibit 3D-3, page 12);

on 7 August 2009, the plaintiff attended upon Dr Parmar, “brought in by his wife” and complained of lower back pain on the left more than the right after a history of heavy lifting. The pain on that occasion was also radiating down his left leg (Exhibit 3D-3, page 13). Like the plaintiff, Mrs Knibbs denied any knowledge of this attendance;

on 18 April 2011, the plaintiff was admitted to hospital for left sided chest pain after a bull riding accident. He had taken Panadeine Forte that morning. (Exhibit 3D-3, page 16);

on 23 January 2012, the plaintiff attended Hawkesbury Private Hospital with twitching on the left side of his face. He had taken Endone that morning (Exhibit 3D-3, page 20).

This evidence is uncontradicted and established that the plaintiff had suffered from a low back complaint prior to the accident. It also showed that the plaintiff had, prior to the accident, been taking Panadeine Forte and Endone.
This evidence is in stark contrast to that of the plaintiff and his wife that he was fit and healthy prior to the accident. This, again, causes me to question the reliability of the evidence called in the plaintiff’s case.
The plaintiff gave evidence that, following his accident, he went out for dinner with his wife and later consulted Dr Farabi, GP. That is, either on 31 December 2012 or 1 January 2013. As discussed above, the business record kept by Dr Farabi shows that the plaintiff consulted him on just one occasion being 30 December 2012 at 10:08am. There is no history of the accident or any fall. The notes simply recorded “Reason for visit: back pain, lumbo-sacral examination consistent with muscular pain” (Exhibit 3D-3, page 25). The fact of one consultation in the absence of any complaint regarding an accident is further confirmed by the letter from Dr Farabi to the plaintiff’s solicitors which appears at page 24 of that same Exhibit.
The plaintiff then went to Blacktown Hospital Emergency Department on 2 January 2013. The triage nurse recorded “Pt presents with LUQ pain post fall 2/7 ago”. I interpret that as meaning the plaintiff presented with left upper quadrant pain post a fall two days ago. In additional information, the triage nurse recorded “patient states pain to LUQ, mid thoracic and tail bone post falling over some dirt 2/7 ago”. Whilst this is generally corroborative of the plaintiff’s case, it alone does not displace the considerable body of evidence against the plaintiff. Pain was assessed as 7 out of 10 and the plaintiff was given Panadeine Forte.
On the same day, the plaintiff was referred to radiology at Blacktown Hospital where he underwent a CT scan of the abdomen and pelvis. There was no sign of significant intra-abdominal injury (Exhibit 3D-3, page 26).
In an addenda to the triage notes, it was recorded by a nurse that “guarding LUQ on movement, c/o pain the same post fall 2/7 ago … taken Panadeine Forte at home 1700 hours”. (Exhibit E, page 2).
The hospital clinical notes record the presenting complaint as being abdominal pain for two days (Exhibit E, page 3).
In the history of presenting complaint section, there is a recording that the plaintiff had a fall two days ago in which he slipped and landed on his bottom and then on to the left side of his chest. There was constant pain but increased today (Exhibit E, page 3).
In the Emergency Department Discharge Summary (Exhibit 3-D3, page 27) the reporting doctor referred to the fall and the fact that the plaintiff had landed on the left side of his chest/abdomen on a hard rock. The Discharge Summary makes no mention of low back pain, an omission which I consider to be an error by the hospital. Alternatively, the omission of back pain might be explained on the basis that the author considered that condition secondary to the others.
On 6 January 2013, the plaintiff consulted Dr Parmar, his usual GP. The clinical notes appear to refer to a problem with the left side of his neck after coughing (Exhibit 3-D1/2). Further, the notes appear to state “no spinal tenderness”. There is reference to an injury to left sided ribs for which he attended Blacktown Hospital but I am unable to discern from the handwritten clinical notes any reference to a low back complaint at that time.
The plaintiff returned to see Dr Parmar on 8 January 2013. I can make out references to the abdomen, the chest and neck pain. There appears to be no reference to the low back (Exhibit 3-D1/2) or any accident. These consultations occurred at a time when one would reasonably expect the plaintiff to make a complaint of low back/buttock pain referrable to the accident.
It appears from the clinical notes that it was not until the 2 April 2013 that the plaintiff told Dr Parmar about a lower back injury. The clinical note refers to slipping while walking in January 2013 and landing on his lower back. He appeared to have complained about pain radiating into his left leg. He was referred for a CT scan of his lumbar spine and later to consult Dr Al Khawaja, Neurosurgeon (Exhibit E, page 7).
In a report back to Dr Parmar, Dr Al Khawaja indicated that the plaintiff was having severe lower back pain and left gluteal pain. It was noted that he had had these symptoms for five months and that he was taking Panadeine Forte “which only takes the edge of the pain off”. The CT scan which Dr Al Khawaja examined showed a mild disc bulge. He referred him for an MRI scan.
The plaintiff returned to see Dr Al Khawaja on 8 July 2013 with the MRI imaging. Dr Al Khawaja recorded that the MRI of his lumbar spine “looks fine”. There was no note of any decompression or any disc injuries (Exhibit E, page 8).
That is the extent of the background material and the documents relating to his treatment post-accident. The plaintiff and the defendants (collectively) sought to rely upon a number of medico-legal reports.
None of the medical experts were required for cross-examination which leaves the Court in a position of having to make an assessment as to which of the opinions expressed by the experts is the more probable.

Plaintiff’s Schedule of Damages

The plaintiff’s counsel handed up and sought to rely upon a Schedule of Damages as at 10 April 2017 (MFI 12). That Schedule set out a claim for damages in the following terms:

(a) Non-economic loss $120,000.00

Said to be 30% of a most extreme case

(b) Past economic loss $44,600.00

Calculated at $200.00 pw from the

accident to date

Calculated at $250 pw to

age 67(multiplier 884.8) with a reduction

in vicissitudes of 15%

(d) Past economic expenses $1,679.00

This was agreed

(e) Future out of pocket $5,000.00

Assessed on a buffer basis

(f) Past domestic assistance $82,733.00

Calculated at 14 hrs pw at the

rate of $26.50 from the date of the

accident to date

(g) Past s15B claim $86,814.00

Said to be calculated at the rate of 18 hrs

pw at $26.50 from the date of the accident

to 1.7.16

(h) Future domestic assistance $65,760.00

Calculated at 2 hrs pw at the rate of $40 ph

for 30 yrs (multiplier 822.0)

Total $594,606.00

I will deal with each of these heads of damages in the order in which they have been raised.

Non-Economic Loss

The early treatment suggests that the plaintiff’s main injury was to his left upper quadrant area, more particularly, his left ribs. That condition resolved.
At the hospital, the complaints of low back pain were very much secondary to the primary complaint.
It is significant that the plaintiff consulted his regular GP, Dr Parmar, on 6 January 2013 and apparently made no mention of the accident or any low back complaint. The only complaints seem to have related to his left neck which was unrelated and rib pain.
When seen by Dr Parmar two days later on 8 January 2013, the neck pain had settled but it might be inferred that the thoracic or rib condition continued.
It was not until 2 April 2013 that the plaintiff made any complaints to his GP of low back pain or the accident. One would ordinarily expect that such information would have been conveyed when the plaintiff first saw his GP on 6 January 2013.
The plaintiff had a documented history of low back complaints prior to the accident. This is referred to above.
X-ray, CT scan and MRI scan examinations failed to demonstrate any abnormalities. Dr Barrett’s opinion that the plaintiff may have suffered an aggravation of a pre-existing asymptomatic degenerative change in his lumbar spine seems most probable. I also accept the uncontested opinion of Dr Barrett that, at the time of assessment in June 2016, the plaintiff had recovered from the effects of the injury and had no requirement for any further treatment.
In the plaintiff’s case, Dr Giblin’s opinion was that he suffered a soft tissue injury to his left buttock reasonably caused by the accident. That is an injury from which one would ordinary expect recovery.
The opinion of Dr Conrad (for the plaintiff) was flawed in that Dr Conrad gave a provisional diagnosis of a spinal injury and recommended that the plaintiff undergo an MRI scan. The MRI scan in 2014 which showed no abnormality was not provided to Dr Conrad and his opinion, therefore, must be treated with caution. No explanation was provided for why Dr Conrad was not provided with the imaging.
Overall, I prefer the opinion of Dr Barrett and find that the plaintiff has recovered from the aggravation of a pre-existing low back condition, for which he had, from time to time before the fall, sought treatment.
Furthermore, I accept the evidence from the plaintiff that his chest/rib injuries recovered without incident.
In view of those findings, I accept the tentative opinion expressed by the psychologist retained by the plaintiff, Ms Glancey (Exhibit E), that the plaintiff had adopted “the sick role” with little prospect of his functioning improving whilst his claim for damages remained on foot.

Damages for non-economic loss

This is to be assessed pursuant to s16 of the CLA. I would have assessed non-economic loss in the order of 20% which would have resulted in an award of $21,000.00.

Past economic loss

The plaintiff’s claim of $200.00 net per week is without any foundation whatsoever. The only income source which could have been measured with any degree of certainty are the payments received from Centrelink. The evidence established that the plaintiff has not lodged a tax return for many years prior to the accident. The inference arising from that is he had not received declarable income during that period. The Court, must, therefore, attempt to first, determine whether there has been an impairment of the plaintiff’s capacity to earn. Relying upon the opinion of Dr Barrett, I am of the view that any such impairment had ceased as the aggravation of pre-existing soft tissue injury had resolved. Secondly, the Court must ascribe a value to any lost capacity. In this case that cannot be done with any degree of certainty.
Had I been called upon to assess damages in this case, I would have assessed past economic loss including superannuation (if applicable) at approximately $10,000.00. I consider this generous to the plaintiff who failed to point to any evidence of earnings in the years before the accident.

Future Economic Loss

Again, the expert evidence which I have preferred (Dr Barrett) would not support any allowance for future economic loss.
Added to that, is the complication that if there is any impairment of the plaintiff’s capacity to earn, there is no evidence upon which the Court could rely in satisfying itself that any such incapacity would be productive of loss to the plaintiff. I accept the opinion of Dr Barrett and find that the plaintiff’s conditions arising from the subject incident have resolved without any incapacity with his ability to work. Accordingly, I make no allowance for future economic loss.

Past Out of Pocket Expenses

These are agreed at $1,679.00 which amount I would have allowed.

Future out of Pocket Expenses

The plaintiff claims a buffer for future out of pocket expenses of $5,000.00. Having accepted the opinion of Dr Barrett, it follows that there is no need for any future treatment and, accordingly, no allowance would have been made. This is further supported by the fact that the plaintiff has sought out very little treatment since the accident and none at all since 2014.

Past Domestic Assistance

In order to qualify for past domestic assistance on a gratuitous basis, the plaintiff must satisfy the Court as to the matters set out in s15 of the CLA.
The plaintiff’s evidence on this topic was exaggerated. Initially, he seemed to suggest that his wife now spends 24 hours a day doing things around the house which he used to do [T29.46]. This is plainly at odds with the evidence of Mrs Knibbs that her husband was working full time at the time of the accident. In cross-examination, the plaintiff appeared to suggest [T157-158] that he could still perform the same activities which he did around the house prior to the accident but at a slower pace. That evidence was similar to some of the plaintiff’s evidence in chief where he said that he “can do everything but smaller amounts” [29.26].
The plaintiff has failed to discharge his onus under s15. In particular, I am not satisfied that:

that there is (or was) a reasonable need for the services to be provided; or

that the need has arisen or arose solely because of the injury to which the damages relate; or

the services would not be or would not have been provided to the claimant but for the injury (s15(2)(a)-(c)).

Further, I am of the opinion that the plaintiff has failed to discharge his onus in establishing the statutory threshold provided by s15(3) in that the evidence does not permit a reasonable conclusion that the plaintiff has received gratuitous attendant care for at least six hours per week and six consecutive months.
This conclusion is consistent with the opinion of Dr Barrett that the plaintiff did not require domestic assistance. It is also consistent with the opinion of Dr Giblin (in the plaintiff’s case) that his need for domestic assistance was just one hour per fortnight, well below the threshold.

Past s15B Claim

In my opinion, this claim suffers from the same evidentiary lacuna which defeated the claim for past domestic assistance. I am not satisfied the plaintiff has made out the necessary components for an award of damages under s15B of the CLA. Accordingly, no allowance would have been made.

Future Domestic Assistance

Relying upon the preferred medical opinion of Dr Barrett and to a lesser extent the opinion of Dr Giblin, I am of the opinion that there is no reasonable need for future assistance. If I am wrong about that, then on the balance of probabilities, any such services would have been provided on a gratuitous basis and any such claim would fail to meet the threshold requirements provided by the CLA. That is, I find that any such need, if any such reasonable need exists, would not exceed six hours per week.

Accordingly, were I to assess damages for future domestic assistance, I would find that the plaintiff had no entitlement to same.

Summary of Assessment of Damages

(a)

Non-economic loss

$21,000.00

(b)

Past economic loss

$10,000.00

(c)

Future economic loss

$Nil

(d)

Past out-of-pocket expenses

$1,679.00

(e)

Future out-of-pocket expenses

$Nil

(f)

Past domestic assistance

$Nil

(g)

Past s15B claim

$Nil

(h)

Future domestic assistance

$Nil

Total

$32,679.00

ORDERS

I make the following orders:

Verdict for the first and second defendants against the plaintiff;

Plaintiff to pay the costs of the first and second defendants;

Verdict for the third defendant against the plaintiff;

Plaintiff to pay the costs of the third defendant;

Verdict for the fourth defendant against the plaintiff;

Plaintiff to pay the costs of the fourth defendant;

The First Cross Claim is dismissed with no order as to costs;

The Second Cross Claim is dismissed with no order as to costs;

Liberty to apply within 7 days to vary any costs orders;

The Exhibits will be retained by the Court for 28 days.

**********

Amendments

31 May 2017 - paragraphs 1 and 280 - removed date and month from birth date

Decision last updated: 31 May 2017

Medium Neutral Citation:	Knibbs v Sheteh, Sheteh, George Koolbanis t/as Lancelot Plumbing & Vlahos; George Koolbanis t/as Lancelot Plumbing v Vlahos [2017] NSWDC 119
Hearing dates:	5, 6, 7 and 10 April 2017
Date of orders:	25 May 2017
Decision date:	25 May 2017
Jurisdiction:	Civil
Before:	Wilson SC DCJ
Decision:	1. Verdict for the first and second defendants against the plaintiff; 2. Plaintiff to pay the costs of the first and second defendants; 3. Verdict for the third defendant against the plaintiff; 4. Plaintiff to pay the costs of the third defendant; 5. Verdict for the fourth defendant against the plaintiff; 6. Plaintiff to pay the costs of the fourth defendant; 7. The First Cross Claim is dismissed with no order as to costs; 8. The Second Cross Claim is dismissed with no order as to costs; 9. Liberty to apply within 7 days to vary any costs orders; 10. Exhibits retained by the Court for 28 days.
Catchwords:	PUBLIC LIABIILTY – slip and fall on leased residential premises - liability of absentee landlord - content of duty of care – whether duty non-delegable LIABILITY OF CONTRACTOR – relationship between contractor and sub-contractor – indicia of employment absent CREDIBILITY – reliability of witnesses JONES v DUNKEL – failure to call or explain absence of witnesses EVIDENCE – use of photographs – business records
Legislation Cited:	Civil Liability Act 2002; ss5B(2)(a)-(d), 5C, 5D, 5F, 5R(1), 5S and 15(2)(a)-(c),(3) and 16.
Cases Cited:	ACE Insurance Ltd v Trifunovski [2011] FCA 1204; (2011) 200 FCR 532 Ahluwalia v Robinson [2003] NSWCA 175 Bellavista Pty Limited v Liberty International Insurance Company [2009] NSWCA 16 at [53] Blacktown City Council v Hocking [2008] NSWCA 144 [170-[172] Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council [2001] HCA 29, 206 CLR 512 at [163] Burnie Port Authority v General Jones (1984) 179 CLR 520 Cavalier v Pope [1906] AC 428 Colonial Mutual Life Assurance Society Limited v Producers & Citizens Co-Operative Assurance Company of Australia Limited [1931] HCA 3; (1931) 46 CLR 41 Council of the City of Sydney v Hunter [2014] NSWCA 449 Fair Work Ombudsman v Ecosway Pty Limited [2016] FCA 296 Hollis v Vabu Pty Limited [2001] HCA 44; (2001) 207 CLR 21 Jones v Bartlett [2000] HCA 56; 205 CLR 166 Jones v Dunkel (1959) 101 CLR 298 Mamo v Surace [2014] NSWCA 58 Marshall v Whittaker’s Building Co (1963) 109 CLR 210 Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; 188 CLR 313 Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34 at [10] Sakoua v Williams [2005] NSWCA 405; 64 NSWLR 588 Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16
Texts Cited:	Wigmore on Evidence (3rd Edition (1940) Vol 2 ss289,290)
Category:	Principal judgment
Parties:	Clinton Knibbs (Plaintiff) Samir Sheteh (1st Defendant) Samia Sheteh (2nd Defendant) George Koolbanis t/as Lancelot Plumbing (3rd Defendant) Nick Vlahos (4th Defendant)
Representation:	Counsel: J Reimer (Plaintiff) D Talintyre (1st and 2nd Defendants) R Perla (3rd Defendant) A Kostopoulos (4th Defendant) Solicitors: Brydens Lawyers (Plaintiff) Sparke Helmore (1st and 2nd Defendants) Moray and Agnew (3rd Defendant) Russell C Byrnes (4th Defendant)
File Number(s):	2015/311718
Publication restriction:	None

(a)	Non-economic loss	$21,000.00
(b)	Past economic loss	$10,000.00
(c)	Future economic loss	$Nil
(d)	Past out-of-pocket expenses	$1,679.00
(e)	Future out-of-pocket expenses	$Nil
(f)	Past domestic assistance	$Nil
(g)	Past s15B claim	$Nil
(h)	Future domestic assistance	$Nil
Total	$32,679.00