Nikoloudakis v Gilligan No. DCCIV-98-1593

NIKOLOUDAKIS V GILLIGAN
[2002] SADC 19
Judge Kitchen
Civil

In this action the plaintiff claims damages for injuries he allegedly sustained on 30^th January, 1996. The plaintiff’s case is that a ladder he was working from on that day in Morney Street, Adelaide was struck by the trailer attached to a vehicle being driven by the defendant causing the ladder to fall to the ground taking the plaintiff with it and he suffered injury.
The matter is before the court only for the trial and determination of the issue of liability.
Morney Street is aligned north/south between Grote Street on the south and Franklin Street on the north. On the western side of Morney Street, at the intersection with Grote Street, there is a building which at the time of the incident was occupied by the Department of Administrative Services (DAS); opposite that building on the eastern side of Morney Street there is a building which was then occupied by Beaumont Tiles. Morney Street, which is a two way street for traffic, is of sufficient width to permit vehicles to be parked on the western side and a lane of traffic to travel to the north on that side.
The plaintiff gave give evidence through an interpreter. He was born in 1955 in Crete. At thirteen years of age he obtained work as a painter, an occupation he continued with after he migrated to Australia in 1981. In Australia he sometimes worked on his own account and at other times he was an employee. In November 1995 he started work for Commercial Painting Contractors, a partnership, one of the partners of which is Mr Russell James Bryan. Beginning about one week before 30^th January, 1996 Mr Bryan and the plaintiff were both occupied in preparing the outside of the DAS Building for painting. That work involved scraping off loose or flaking paint and patching or filling cracks or other imperfections in the surface, some of which necessitated climbing and working from a ladder.
The plaintiff described that on 30^th January, 1996 he arrived for work at about 7.30 a.m.; Mr Bryan arrived shortly after. The preparatory work had begun on the Grote Street façade of the DAS Building, both men working their way around onto the Morney Street façade. To reach the higher parts of the building, the plaintiff said, he was using an aluminium ladder 3.5 to 4 metres in length which had been hired by his employer; the ladder, the plaintiff described, was equipped with rubber feet at the bottom of the stiles such that for the feet to be flat on the ground the ladder could be placed against a wall in only one orientation; as the plaintiff described it the ladder could be put up only one way.
The plaintiff related that his system was to work from the ground, scraping and patching, then use the ladder to reach higher parts of the walls, and in this way complete a section of the wall before progressively moving to the next section of the Grote Street façade and then around to the Morney Street façade. He said he moved the ladder about every 2 to 3 minutes.
The plaintiff said that while he was working in Morney Street vehicles had come and parked at the western kerb and then been driven away. He said he saw a four-wheel drive vehicle with a trailer attached drive up to a stop next to the western kerb. The driver, a lady, got out and went off on foot returning about forty or forty-five minutes later. He later said he must have misunderstood a question put to him; he did not see the vehicle/trailer combination arrive or see the driver alight from it and walk away - I accept there was some misunderstanding.
The plaintiff said a lady came to the combination about 40-45 minutes after he first saw it at the kerb; he related he was on the ladder which he had placed against the wall of the DAS Building, the foot of the ladder being on the footpath about 15-20 centimetres (a hand-span as he described) from the edge of the kerb forming part of the footpath which he estimated to be about one metre wide; referred to Exhibit P1, the report of Mr Peter Maddern a consulting engineer, the plaintiff said his ladder was in about the position of that shown in photograph number 2 of the report both in its position relative to Grote Street and its angle against the wall. He said at this point in the day Mr Bryan was working about 30 metres north from the plaintiff’s position.
The plaintiff described that he was working from the ladder, his feet about two to two and a half metres above the level of the footpath, gripping the left stile with his left hand and using a scraper with his right hand, his arm extended. He said the ladder was about one to one and a half metres (to the south I understand)from the rear of the trailer, that the trailer and the towing vehicle were “parked the right way” the wheels of the trailer being “before the start of the gutter, the lane of the gutter” and that no part of the trailer was overhanging the footpath; in cross-examination he agreed the vehicle/trailer combination was parallel to and not very far from the kerb. He thought there was a car, brown in colour, parked in front of the four-wheel drive but he did not know the distance between the two vehicles.
The plaintiff related that from his position on the ladder he saw that the lady (there is no dispute it was the defendant), on returning to the vehicle, came onto the footpath between the position of his ladder and the trailer, walked along the side of the trailer toward the front of the four-wheel drive – the plaintiff said it appeared to him she was looking at the side of the vehicle as though to see whether it had been “dirtied” by the work the plaintiff was doing – then passed across the front of the four-wheel drive to the driver’s door. The plaintiff said he heard the door open, then shut, the engine was started and a few seconds later “I felt an impact, a noise of the ladder and the next thing I knew I was on the ground, on the right side. Yes, I fell on the right side with the ladder – the car pushed the right side of the ladder” and he and the ladder fell to the left side. He said he did not see what had struck his ladder and the bang he heard and felt against the ladder he estimated to be at a point seventy to eighty five centimetres above the footpath.
The plaintiff said he does not recall how or where he landed, whether it was on the footpath or the road. He said he felt pain all over his body, more severe in his left ankle, he was dizzy and he thinks he lost consciousness when he hit the ground. He described his next memory was being in an ambulance. He was taken to the Royal Adelaide Hospital. He said that while he was at the hospital he “remembered what had happened … I remember the lady coming close to me. Again, she was examining the car. She got into the car. I heard the door open. Of course, I heard the door shutting. I heard her switching on the engine and then a few seconds later, I remember hitting me.” (Page 31).
The plaintiff said that when he was at the hospital he was examined by a doctor, x-rays were taken, he was given some Panadol Forte, provided with a pair of crutches, a taxi was called for him and he returned to the work site in Morney Street – his vehicle was nearby. He said he found Mr Bryan in Morney Street and spoke to him explaining “exactly what happened with this accident”. He then drove his vehicle home – in cross-examination he said he was not dizzy and although he had pain in his left leg he was mentally and physically capable of driving his vehicle which had automatic drive.
In cross-examination it was put to the plaintiff that the defendant held an umbrella to shade him after he had fallen on the ground, that she said to him “I didn’t cause this accident did I with my car” or words to that effect and he replied “No, no the ladder slipped and I fell”. The plaintiff said he does not remember that happening, or those things being said and he did not think it was possible “Because how could it be – I felt the push from the right and I fell with the ladder on the ground, on the left, of course. How could I say such a thing.” (Page 41). He said he does not remember Mr Bryan coming to him, after he fell to the road, and ask him how the accident happened and he replied to the effect that the ladder slipped and that that caused him to fall. In saying that he did not remember that exchange he added “My condition was such, I couldn’t remember anything. And of course, this combined with my English, my English was very poor at the time, and I couldn’t explain to him in detail. While I was down on the ground I feel dizzy and couldn’t explain it”.(p.46)
The plaintiff said he has no memory of giving to an ambulance officer, or officers his age, his address or telling them he was two metres up a ladder when it fell backwards causing him to jump, fall clear and land on his feet.
The plaintiff said he has no memory of any response from Mr Bryan when he, the plaintiff, after being at the hospital, returned to Morney Street and told him that the trailer and car knocked his ladder causing him to fall, and in particular, no memory of Mr Bryan replying that that was completely different from what the plaintiff had previously told him; and asking the plaintiff why he had not earlier said how it occurred to which the plaintiff responded to the effect that “I didn’t want to say that because the lady seemed very concerned and nice”. The plaintiff said:
“I don’t remember exactly saying this or to that effect but I was expecting that this lady would have already had explained to my boss what actually happened”.
The plaintiff said that beginning in August 1999 when he had trouble with his neck, which led to him being paralysed and confined to a wheelchair, he has had problems with his memory – he remembers a few things and cannot remember others.
The plaintiff agreed that if, in the course of working from the ladder scraping the wall, he were to over-extend to his right, lose his balance and start to fall to the right, he could pull with his left hand to recover his balance. He denied he did that on this day immediately before he fell. He said he only extended his arm “as far as I can work with ease”.
Taxed about the position of his ladder on the footpath, the plaintiff denied he had placed it so that the feet of the ladder were on the kerb as depicted in Exhibit D4 Photograph HSA 7. He said to place the ladder in that manner would be “very dangerous ... The ladder could slip outwards and you can fall on your face”. He agreed that were the ladder to be in that position it could pivot, lifting one of the feet which could drop down into the gutter.
The plaintiff identified Exhibit D5 to be a panorama of the eastern face of the DAS Building as he remembered it. He marked on the Exhibit a short vertical line which he said was the approximate position of his ladder on the wall when the accident occurred.
He related that as the defendant passed across the front of the four-wheel drive he turned his attention back to the wall he was working on and he did not see anything else concerning the movement of the defendant or her vehicle. He said he was not expecting the defendant to reverse her vehicle and he thought the noise of the engine to be normal immediately before he felt the ladder pushed and he fell with it to the ground.
Mr Bryan said the plaintiff was appointed to a full time position of painter with his firm on 12^th November 1995; the plaintiff had been employed by the firm on a casual basis for about one week approximately a month before he was taken on full time. Mr Bryan described the plaintiff to be a competent tradesman whom he had not observed to engage in unsafe practices when working on a ladder.
Mr Bryan said his firm’s contract concerning the DAS Building was to carry out some minor work inside and to repaint the entirety of the outside. He said he and the plaintiff embarked on the project about one week before 30^th January 1996, progressively working their way along the Grote Street frontage onto the Morney Street frontage preparing the walls for repainting by scraping off loose paint, using a handscraper and wire brush, and filling mortar cracks. He said the plaintiff was using a single ladder three metres in length, which he described to have rubber stops on each end and to be similar to that shown in Exhibit D4 photograph HSA 5, the rubber stops being designed so that the ladder could be erected against a wall in only one way.
Mr Bryan said that during the course of the morning of 30^th January 1996, after a “smoko” break ending about 10.30 a.m., he was working on the DAS Building at the alignment of the driveway entrance to it from Morney Street shown in Exhibit D5. He said the plaintiff was working on the eastern facade preparing the wall, using the ladder to reach to the height of the horizontal band coloured burgundy in D5. For work above that height, Mr Bryan said scaffolding was to be erected. He marked on D5 the plaintiff’s approximate position with a cross. He said there was very little pedestrian traffic along the street and he thought there were three or four cars, between his and the plaintiff’s respective positions, parked at the western kerb. Mr Bryan said he was in the driveway entrance working, from a six foot step-ladder, on the corner section and facing toward Grote Street in such a position that with a slight movement of his head he had a view to the south along the western footpath of Morney Street.
He described that he heard a loud crash consistent with an aluminium ladder falling over, a distinctive sound as he described it. He said he looked:
"AI saw the ladder – the ladder wasn’t where it was supposed to be; Tony and the ladder wasn’t there. I could see the ladder on the floor; I couldn’t see Tony. There was quite a few cars parked and I got an impression of a little bit of movement as I first turned my head. Then I realised what had happened and I stopped looking and looked down and got down off the ladder and sort ran down, so it was only very quick; I turned around saw what happened.
QYou described there seeing a little bit of movement, you said.
AYes.
QFrom what; did you get an impression of what it was that was moving.
AIt was a fairly large car. As it turns out, it was Mrs Gilligan’s car. I wasn’t aware of a trailer or anything at that stage.
QWhen you looked, as you described, and saw this movement, did you recognise it as a movement from a car.
AYes.
QAre you able to say whether you recognised the movement being in one direction or the other from the car.
ANo, I’m afraid not.” (page 101)
Mr Bryan said that he ran on the footpath past the parked vehicles to a position where he found the plaintiff on the roadway, the ladder lying on the footpath. He knelt next to the upper body of the plaintiff, whom he was very concerned about because he was making a lot of noise “almost screaming”. He saw the defendant was also kneeling on the roadway next to the plaintiff’s head – he was not sure whether she or he was the first to arrive there. He related that the defendant “seemed to be sort of apologising and saying ‘I’m sorry’ and just very concerned”. He said he was trying to find out from the plaintiff the extent of his injuries; the plaintiff pointed to different parts of his body (and may also have pointed to his head) and appeared to him to be dazed. Mr Bryan said he had to listen carefully to try to understand the plaintiff’s words – he described the plaintiff’s spoken English to be such that “the level of normal communication is very hard anyway”.
Mr Bryan telephoned for an ambulance after it was suggested to him that he do so by a woman whom he thought came from the DAS Building, appeared to him to have first-aid experience and took control. He said he called an ambulance about five minutes after he first saw the accident, and it arrived ten to fifteen minutes later. Mr Bryan said that after the ambulance was called the plaintiff quietened, appeared to have got over the initial shock, although “he still wasn’t bright, he wasn’t himself” and he asked the plaintiff what had happened. He said the plaintiff told him “the ladder had slipped, he felt that the ladder had slipped”. Mr Bryan described his own reaction to be a little bit incredulous, but that is what the plaintiff told him so he believed it to be the case. He said that when he first reached the plaintiff he had seen the four-wheel drive and its attached trailer “one metre or so” to the north of the plaintiff and that the kerbside wheel of the trailer “was hard into the gutter and slightly up off the ground and the corner of the trailer was hanging over the footpath a little” (page 107) the trailer being at an angle to the kerb, the overhang projecting about twenty centimetres; he said the combination was about one and a half to two metres behind a vehicle parked in front of it. He said he was unable to say what position the towing vehicle was in relative to the kerb but, referred to photographs HSA 24 and 25, he said that is how he remembered the trailer, the trailer he thought being “sort of slightly lower off the ground but slightly lower but much of a muchness”.
Mr Bryan, whom I accept to have had long experience with the use of ladders in the course of his work as a painter, expressed the opinion that modern well-maintained ladders do not slip. I accept his evidence to that effect. He also went on to speak of a conclusion he drew, from what he saw, concerning the position he had noted the trailer to be in and the plaintiff’s accident; what he said on that topic is the view of a layman and of no assistance to the court.
The plaintiff, Mr Bryan said, was taken away in the ambulance. About three hours later the plaintiff returned to Morney Street, moving with the aid of crutches; he appeared to be Mr Bryan to be “very much healthier than when he left”.
"AI said to him, you know, “what happened”, and he told me that the lady had reversed her trailer and it had knocked him off his ladder, which is what I had sort of thought happened, but he said that the ladder had slipped, and now he was saying that you know, fairly clearly, that the lady had knocked him off, and I said to him “Why didn’t you say this before, it is a really important thing?”, and he didn’t really have a good reason. He was saying that the lady was a nice lady and he didn’t want to cause any trouble. He still wasn’t himself at that stage, and what he was saying – yes, it is hard to form a strong opinion of it.
QCan you tell us any more detail of what account he had of being knocked off the ladder.
AHe said that the trailer had pushed the bottom of the ladder and that he had come down.” (page 114)
Mr Bryan understood from what the plaintiff told him that the plaintiff had been informed at the hospital he had not suffered any broken bones, but most likely a sprain, and the plaintiff had a “sick note” for two or three days.
Mr Bryan said he had earlier looked at the lower part of the stiles of the ladder the plaintiff had been working from; he did that for two reasons, first “to satisfy myself whether he had been knocked off, as I had first thought and, two, whether the hire company would be cross that we had sent back a damaged ladder”. He described the ladder to have scratches and nicks and to be spotted with concrete residue, all as he would expect to find on a ladder which “had been around for awhile”, but “there was no actual sort of big ding into it”.
Mr Bryan said that before the plaintiff fell from the ladder he observed the plaintiff’s feet were about two metres above the ground, that the angle of the ladder to the wall was “a normal angle and nothing out of the ordinary” and the foot of the ladder was on the footpath, fairly close to the gutter but not on the concrete kerb.
In cross examination Mr Bryan said the ladder the plaintiff was using had twelve rungs and that to reach, what Mr Bryan called, a fairly big crack at the window-sill level which the plaintiff was filling, the plaintiff’s chest would have been approximately level with the top of the ladder his feet on the fifth rung from the bottom. He could not say when it was he last noticed the plaintiff before he heard the crash of the ladder – it might have been ten minutes or one minute earlier. After the noise of the crash he saw the ladder lying on the footpath; he could not see the plaintiff whose position on the roadway was obscured by parked vehicles. He said he found the plaintiff lying on his back on the roadway, parallel to the kerb, with his head toward Grote Street. The plaintiff appeared to him to be conscious, his eyes were open, and Mr Bryan spoke with him. He agreed the plaintiff more than once, in answer to Mr Bryan’s question to the effect what had happened, told him the ladder had slipped causing him to fall. He said he also heard the plaintiff speak with the ambulance officers who came to the scene; he could not remember what was said. Shown Exhibit D13, a report compiled by an ambulance officer concerning the plaintiff, Mr Bryan said he has no memory of speaking to an ambulance officer and was sure he did not provide to an ambulance officer the information in the report setting out the plaintiff’s date of birth, his place of residence (he said neither of those things were known to him) or a description of how the plaintiff’s accident occurred.

Mr Bryan said the defendant remained at the scene until the plaintiff was taken away in the ambulance; because of what the plaintiff had told him had happened, Mr Bryan did not ask the defendant for her name or any other particulars.
Mr Bryan was taxed about where he saw the foot of the ladder to be when he saw the plaintiff on the ladder at some time before he heard the ladder fall. It was put to him that the foot of the ladder was on the kerb; he said “It’s highly unlikely but yes its possible” because he did not “specifically” see where it was. He agreed the following to be a series of questions and answers in a conversation between him and Mr G Kelly, a loss adjuster, on 29^th April 1996; these are from Exhibit D12 a transcript of an audio tape of the interview he had with Mr Kelly.
“QOkay now do you remember where the ladder was positioned or resting on the footpath or the roadway when Tony was working on it.
AIt was a fairly narrow footpath but he wasn’t very high. I didn’t actually see specifically where he had it but it would have been towards the edge of the footpath. On the road would have made the angle too obtuse and much closer would have made it too acute.
QSo the foot of the ladder would have been on the footpath area not onto the roadway.
ANo.
QOkay would the feet of the ladder have been close to the edge of the footpath like near where the kerbing would be.
AYes. Its a very narrow footpath so yes.”
Mr Bryan agreed that his memory of the events on 30^th January, 1996 would have been clearer on the day he spoke to Mr Kelly than at the time he gave evidence. He agreed he made no mention of the trailer to Mr Kelly; there was this exchange –
(p.159-160)
"Q“I put it to you that at least on 29 April 1996 you didn’t have a clear memory of what sort of vehicle was involved in this alleged accident that Tony told you about.
AThat’s correct.
QNor did you have a clear recollection of the trailer.
AThat’s correct as well, yes.
QWhen did your recollection about the trailer being, first of all, a metre or so from where Tony was first come to you.
AThat was with me all the time.
QWhy didn’t you tell Mr Kelly about it.
AHe didn’t ask me.
QWell, you agreed with me that you didn’t even mention the trailer.
AThat’s right.
QDo you agree with me that you were asked about the car and the trailer.
AWhere does it say that? What context is it?
QQuestion 65. Question ‘All right, now did you remember anything about the vehicle or the vehicle and trailer yourself, Russell, anything that stood out to you about it’.
AYes, nothing particularly stood out about the trailer and the vehicle.”
(p162)
"Q“I want to put this to you: after the accident you’ve told us that you observed the position of the trailer, and you’ve told us, as I understand, it was a metre or so north of Tony’s feet.
AYes.
QI’ve put it to you that it was approximately three car lengths north of his feet, and you’ve disagreed with that.
AThat’s right.
QI want to put to you that the trailer’s left wheel was close to the kerb but not necessarily on it.
ANo, I’ve got a clear recollection of the tyre being up the kerb.”
In re-examination he said he did not think Mr Kelly’s question, of whether there was anything distinctive about the vehicle and trailer, concerned the position of the trailer.
The plaintiff called Mr Peter Maddern, a chartered engineer and the author of the report Exhibit P1. Mr Maddern also prepared a second report dated 8^th August 2000 (Exhibit P14) which is a response to certain parts of a report dated 28^th June 2000 (Exhibit D4) prepared by Mr H. Aust, a chartered professional engineer; Mr Aust was called by the defendant. I will deal with those reports, and the evidence of the authors, later in these reasons.
The defendant, who is aged forty seven years, had held a drivers’ licence for about twenty six years at the date of the events of this accident; she said, at that date, she was living with her husband and children in Picadilly (in cross-examination she became unsure where she was living) on a block measuring about four and half acres in area. She said she first drove a vehicle and trailer combination approximately eighteen years ago and since then on about two or three occasions a year. In January 1996 the defendant and her husband owned a white Mitsubishi Pajero and a blue trailer. The defendant identified the trailer to be that shown in photograph number 29, and others, included in Exhibit D4. She said that on previous occasions she had driven the combination to or through the city and had parked it.
The defendant related that on 30^th January 1996 she coupled the empty trailer to the Pajero and drove from her home at Picadilly intending to go to Beaumont Tiles. She described that she travelled along Grote Street, turned right into Morney Street and seeing there were no cars parked on the western side of the street she parked the combination – “I was able to pull safely in to park the car”; she said that having got out of the car she checked its position as she always did and
(p.224)
"A... I saw that I was parked really well.
QWhat do you call ‘really well’.
AStraight
QWhat about the trailer.
AStraight, yes.
QAs best you can estimate, and you can indicate measurements if you like, how close was your front left wheel of your car to the kerb.
AI’d say a good four inches, three or four inches.
(INDICATES)
QWhat about the left wheel of the trailer.
AThe trailer was also – like I said, I had plenty of room to swing in straight and just pull up a good distance and have both of them straight.
QAt that stage are you able to tell his Honour whether or not there were any vehicles in front of you after you’d parked, facing the same direction as you were parked.
AThere could have been one, but it was further away from me.”
The defendant said it was before l.00 p.m. and there was no ladder in the vicinity of where she parked. She related she then went into the premises of Beaumont Tiles, returned later and saw:
(p.225)
"A... there was a ladder against the wall and a man on it, and I went to see if it was safe for me to pull the car out, and where his ladder was, it was near to the edge but it wasn’t near to – it wasn’t touching the car or anything, and I could see that there were no other cars in front of me and that I was able to drive straight and pull out away without harming the ladder.
QWhen you parked your car, did you notice whether or not there was a ladder in the vicinity of the parked car.
AYes.
QWhere was the ladder at that time.
AIt was in near proximity to the back of the trailer.
QThat’s when you first parked.
AWhen I first parked, sorry, there was no ladder there, no.
QBut when you came out of Beaumont Tiles, you did notice the ladder near the back of your trailer.
AYes, I did.”
She identified photograph number 7 in D4 to show the position of the ladder – she said she was present when Mr Aust took that and other photographs in Exhibit D4, directing him where to place the ladder so that the foot of the ladder was on the concrete kerb, which is her memory of where it was, and the ladder’s position in relation to the rear of the trailer when she returned to her vehicle. The defendant described that she walked between the ladder and the rear of the trailer, the distance between them being (she indicated) about two feet, and “... had a look and just assessed the situation and got in the car and left” (page 226).
The defendant said the feet of the man on the ladder were at about the level of her shoulder. The defendant is five feet six inches tall.
The defendant related that having concluded she could drive away without felling the ladder she got into her vehicle, wound down the windows because it was a very hot day and:
(p.228)
"A,,, at a very slow pace I pulled out to the right.
QAs you were pulling out, did something occur at some stage that attracted your attention.
AYes. I was about two car lengths away when I heard a crash and I looked in my rear-vision mirror and saw that the ladder had fallen and that the man wasn’t there. Obviously he had fallen off his ladder, so I just quickly pulled back in off the road and went to his aid.
QWhen you pulled back in, can you tell us whether or not you measured that parking operation off, or in what manner you pulled back in.
AI was clear to pull in because there were no other cars in front of me for a while, and I just pulled in. I didn’t, you know – I didn’t get out and check it and see that it was a wonderful park or anything. Yes, that’s what I did, I just quickly pulled it in off the road.
QWhen you pulled it in, was there a car in front of you.
ANo. There was, but not right directly in front of me. There were cars up ahead.
QDo you know how close the car in front of you would have been, or can’t you remember.
AMaybe about two cars ahead.”
The defendant described that the plaintiff was lying on the ground at an angle to the gutter holding his left leg and “making painful groans and moans”; she said she asked him whether he was alright and where he had hurt himself to which he replied he had hurt his left leg and then she said to him “That wasn’t my fault was it” to which the plaintiff responded “No, it wasn’t, I slipped”.
The defendant said that at the time of this exchange she was the only person by the plaintiff, and then a lady came to offer assistance, a carpet rug was placed under the plaintiff’s head to elevate it and then a man and another man came. One of the men was Mr Bryan. The defendant related “Every person who showed up at different times asked ‘what happened’ and the plaintiff answered them and said ‘I slipped’ each time” on four or five occasions. The plaintiff, the defendant said, did not appear to her to be unconscious at any stage, appeared to understand what was said to him and to respond, including when asked by ambulance officers what had occurred answering that he had slipped off the ladder. At some point the defendant went into Beaumont Tiles to obtain a dampened towel for the plaintiff and at some stage she took an umbrella from a bystander to shade the plaintiff.
The defendant described that the distance between the ladder and the trailer when she returned to her vehicle from Beaumont Tiles was a foot or two from the rear of the trailer. On Exhibit D5 she marked with a circle the position of the ladder against the wall of the DAS Building; the mark of an “X” on D5 is the position where Mr Bryan remembered the ladder to have been.
The defendant said that on returning to the parked combination she went to a point in the gutter between the ladder and the rear of the trailer, bent forward and looked along the side of the combination; she said “I would have put my foot up on the step just to have a look” but except for that she could not remember going onto the footpath; “I could have done, but looking at it now, there wouldn’t be any need to really walk up on the ground to the footpath, but my body was over the top end of the kerb” (page 233).
The defendant said that she was “not very confident at all” about reversing a vehicle and trailer combination and if she had thought it necessary to reverse she would have asked the plaintiff to move his ladder “because he was just too close”. On getting into her vehicle and driving away from the parked position, she said she did not feel the wheel of the vehicle strike the kerb.
In cross-examination the defendant at first said she drove straight from her home at Picadilly to Beaumont Tiles; then, she remembered, the trailer was loaded with a stove which she took to a business in Franklin Street so, she said, her husband must have hitched the trailer. She denied she was annoyed to find that, having gone into Beaumont Tiles, for whatever it was she intended to obtain there, the item was not ready, and rejected she was agitated when she returned to her vehicle parked in Morney Street.
The defendant later became unsure whether on 30^th January 1996 she was living at Picadilly or at Mount Barker (page 265).
The defendant repeated that on returning to the parked combination she stepped onto the footpath and bent forward “to see where everything was”. She denied she walked on the footpath along the side of the combination to go to the driver’s door – she said there is no reason she would have gone “all the way around… I don’t remember which way I went but I’m certain I wouldn’t have done it that way” (page 244). Her reason for looking along the side of the combination, as she described she did, was “to see whether I could pull out safely, because of where this ladder was next to my car”, and not on account of any concern she had that her vehicle might have been spattered with paint.
The defendant said she parked the combination parallel with the kerb “exactly how it is in photograph 7”, two to three car lengths behind a vehicle parked ahead of her and she “would have put the vehicle in first gear and applied the hand-brake” – she said she always did that; she denied she engaged the reverse gear.
The defendant related that when she returned from Beaumont Tiles she is sure that no other vehicle had parked in the space between “them” because “when I checked to see where I could drive I knew that I could drive out easily as well” (page 248). She said that on getting out of the parked fourwheel drive she had walked around to the rear of the trailer and onto the footpath and looked to see where the wheels of the combination were in relation to the kerb –they were “straight”, she described. There was this exchange:
(p.250-253)
"QSometimes when people park regularly on sloping ground, they have a habit of turning their wheels into the kerb. Are you one of those people.
ANo, No.
QYou paused there. Was that because sometimes you did that.
AMaybe. I think I just pull in and go straight, just always leave the tyres straight.
QYou think that’s what you usually do.
AYes.
QIs that why you think that’s what you did this day.
AI know that’s what I did this day, because I had enough room to pull in right round that corner and just make it all straight and ready to leave as well.
QCould you describe what you say you did when you drove off.
AI would have indicated and just drove straight off.
QYou would have indicated. Do you actually have a memory of actually indicating.
AI also indicate when I pull away from the road.
QDo I understand correctly that you were moving out to your right as you moved forward and out from the footpath, from your memory, on your account.
ANo, I would have driven forward a bit and pulled out, because I was aware of the ladder being there.
QWhat difference would it have made to have driven forward a bit before you started to go to the right, as opposed to going to the right from where you were.
AIt’s just because I could do it because there were no cars in front of me. There was no need to pull straight out to the right.
QAre you saying to the court that you have a clear memory of actually moving straight along for some distance before you attempted to move to your right to go out from the park.
AI didn’t immediately pull the wheel to the right, no. I went straight, just for a little bit. I remember that a hundred per cent.
QWhy did you do that.
ABecause I wanted the car to be straight as I pulled away.
QWhy did you want the car to be straight as you pulled away.
ABecause I could, because there were no cars in front of me.
QBut earlier you said it was something to do with the presence of the ladder.
AYes, and to be sure that maybe I didn’t – yes, just in case. I think that’s just how I would have thought, just in case.
QIn any event, at some stage after you commenced to move forward you started to move out to your right to, presumably, take up a place in the north-bound carriageway of Morney Street.
AThat’s right.
QYou say you moved forward some three car lengths, is that right, when you heard a noise.
AAbout two to three car lengths, yes.
QOn hearing the noise, what did you then do.
AI stopped and quickly looked in the rear-vision mirror and saw that the ladder wasn’t there any more, and knew that he must have fallen, so I pulled back in again.
QHow did you pull back in.
AJust very quickly, just got off the road.
QIn forward or reverse.
AIn forward.
QDoes that mean you steered the front wheels on your vehicle to the left.
AThat’s right, yes.
QWhere did you eventually stop.
AJust down the road, a few car spaces down from where the ladder was.
QWas your car a more than normal parking distance out from the kerb when you stopped.
ANo, it was safe enough. I pulled in just to get it in properly parked. When I say ‘properly parked’, I mean off the road.
QDoes that mean, Ms Gilligan, on what you’ve described to us, that you performed a sort of an arc – do you follow me – that you’ve come out and in a curving sort of way gone back in again towards the kerb of Morney Street.
AI would have pulled out, stopped, and then quickly gone back in again, yes.
QSo thereby making something of the order of a curve; do you follow me.
AYes.
QDo you say that you were able to get your car back into a position where it was fairly close to the kerb when you actually came to a stop.
AI can’t remember; it was all too quick. I just pulled it back into the parking side and then out of the road, and got out of the car.
QYour recollection is that it was safe enough, to use your words, that it was out of the traffic.
AThat’s right, yes.
QSo it must have been, on your recollection, fairly close to a park, if you like, a legal park.
AYes, it was just parked, it was out of the way of other cars, because I just did it so quickly, yes.
QIs it the situation that you were able to bring your car back in to near enough to an ordinary park despite there being another car up ahead of you.
ASorry, could you say that again?
QPreviously you described that there was a car up ahead of you, as I understand it, about three car lengths up.
AThat’s right.
QWhat you’ve described, you’ve travelled two to three car lengths, but you were still able to turn into your left and park the car. Do you understand what I’m putting to you.
AYes. I don’t think I travelled that far. I didn’t go down two to three car lengths.
QWhen you previously told us you travelled forward some two to three car lengths, that’s probably not right.
ANo, not if I was able to do that, you can see now that it wouldn’t have been right, no, it wouldn’t have been right. I can see now that I would have just pulled out and pulled straight back in again. It wouldn’t have been that far.
QYou don’t know how far you travelled forward, do you, Ms Gilligan.
AI know that it was far enough for me to be able to fit into the gap before those cars out the front. ”
It was put to the defendant that when she parked her vehicle she engaged reverse gear and on returning to the vehicle she inadvertently started the vehicle without putting the clutch in “causing it to reverse for a short distance” or it is possible she did that; she said she “would not have done that …I don’t usually turn the car off and put the car in reverse” and she did not think it was possible she did so. The defendant denied that the distance between her vehicle and that parked ahead of her was one to one-and-half metres, such that unless reversed a short distance her vehicle could not be driven from its parked position. The defendant denied she was reversing the combination when she heard the sound of the falling ladder and then stopped; she said “I’ve never had need to reverse a trailer (except) a little way, meaning just enough to straighten the car up or whatever… I never reversed down a driveway or had done a lot of reversing at all” and rejected the suggestion that she reversed the combination a “little way” on this day.

The defendant repeated that when she stopped, after completing the manoeuvre she described, the rear of the trailer was further from the plaintiff’s position on the roadway than one metre. She said that, on going to the plaintiff, she could tell he was Greek or Italian by his accent, that he was “just using short words so he could have been dazed or nervous or just in pain”. She denied she said anything to him about “being sorry”, or words to the effect “I did not knock you off the ladder did I”. Asked why she asked the plaintiff “That wasn’t my fault was it” the defendant said “It just seemed like a coincidence that after I pulled out, I heard the noise” and the words “just came out”; she rejected she either knew or suspected it was her fault: “I could see that there was no way I could have hit him by driving forward”.
Ms Tracey Hughes is a paramedic who, with Ms Marika Van Stekelenberg, both employees of S.A. Ambulance Service, attended the plaintiff in Morney Street on 30^th January 1996.
Ms Hughes identified Exhibit D13 to be a copy of a report the handwritten parts of which were written by Ms Stekelenberg. The report is required to be completed by employees of S.A. Ambulance Service called out to attend an incident such as that involving the plaintiff. Ms Hughes said she has no independent memory of the incident.
Ms Stekelenberg, at the time of the trial, resided in Wangaratta. It is agreed between counsel (pages 321-322) that Ms Stekelenberg if called would have deposed that she was the author of the written parts of Exhibit D13 and that the information (other than her own tests or observations) contained in the document was obtained from the plaintiff and, where possible, checked with bystanders.
I accept Ms Hughes’ reading of what appears in the report and I have no reason not to accept the accuracy of what is in the report unless there is a plain inconsistency between its contents, and other evidence in the case which I find credible and reliable.
I find that the Ambulance Service was summoned at 11.31 on 30^th January 1966 and arrived in Morney Street at 11.39. The plaintiff was supine on the ground, was found on examination to be conscious, alert and orientated and was reported either by the plaintiff or bystanders not to have been unconscious before the officers arrived, although bystanders observed he was initially dazed. It is more probable than not that the plaintiff provided the personal information (his name, address and date of birth) appearing in the report and the account to the effect he was “two metres up a ladder when it fell backwards causing (the plaintiff) to jump/fall clear, landing on his feet”; neither Mr Bryan nor the defendant (as I accept) saw by what sequence of events the plaintiff came to be lying in the roadway and there is no evidence any other person saw what happened.
Mr Maddern’s report dated 12^th May 1999 is Exhibit P1. The report commences with an introduction which includes “This report is prepared with the benefit of a conference with Mr Nikoloudakis. Photographs included in the report are supplied by Mr Nikoloudakis”. Three of the four photographs in the report show a ladder placed against the eastern façade of the DAS Building; the ladder is an extension ladder, not a single ladder which the plaintiff was using on the day. In the position in which the ladder is depicted in photograph 4, Mr Maddern’s opinion is it was “properly” placed, which he explained to mean that the distance between the foot of the ladder and the wall supporting it is approximately one quarter of the length of the ladder and therefore it complied with the regulations made under the Occupational Health, Safety and Welfare Act in that respect; the relevant regulation (Section 2.13.1(10)(d)) also requires that the ladder be:
“(ii) located on a firm footing and effectively secured in position to prevent slipping and sideways movement”
as to which Mr Maddern wrote:
“It is abundantly clear that the order of forces able to be generated by a reversing vehicle vastly exceed those likely to be applied in the use of the ladder to prevent it slipping and moving sideways. That it slipped then, does not suggest that it was not effectively secured”
Mr Maddern identified the report P1, and confirmed his opinion within it that if the defendant’s reversing trailer struck the northern stile of the ladder he would expect the force of the impact to move the top of the ladder “southwards in relation to the bottom”. Mr Maddern’s evidence and his cross-examination dwelt on the first report by Mr Aust which Mr Maddern canvassed in his own report Exhibit P14. I will therefore summarise Mr Aust’s reports first. Mr Aust remained in the courtroom during the time Mr Maddern gave evidence.
Mr Aust prepared two reports the first Exhibit D4 dated 28^th June 2000, the second Exhibit D15 dated 20^th August 2001. The second report concerned, firstly, Mr Aust’s observations and opinions concerning his use of a ladder to ascertain his and the ladder’s movement when he over-reached to his right while on the ladder and, secondly, what he as the driver sensed when a vehicle similar to the defendant’s was reversed, close to a kerb, such that the near side front wheel mounted the kerb.
On 18^th April 2000 Mr Aust carried out in Morney Street a series of manoeuvres involving a Pajero four door wagon similar to the defendant’s vehicle, to which the defendant’s Kessner trailer was coupled, the trailer being that which the defendant’s vehicle was towing on 30^th January 1996. The defendant’s Pajero vehicle had been disposed of after 30^th January 1996 and before Mr Aust’s experiments; he said, and I accept, it is unlikely that any differences between the defendant’s vehicle and that which he used would have significantly affected the outcome of his investigations – as I understand it the wheelbase of the vehicle he used was marginally longer (by approximately .005 metres) than the defendant’s vehicle.
Mr Aust measured the footpath on the western side of Morney Street to be 1,260 millimetres within which the concrete kerb accounted for 100 millimetres; the footpath sloped (it varied between 3° and 6.4°) from the building alignment to the roadside edge of the kerb; the kerb was 105 millimetres above the height of the concrete gutter which was 455 millimetres in width between the bitumen road surface and the kerb. Photograph number 2 in Exhibit D4 is a general view of the footpath.
The plaintiff judged the footpath to be of a narrower width than measured by Mr Aust: however I accept Mr Aust’s evidence that the condition of the pathway was such that it is unlikely there had been any change in its dimensions, position and surface since 30^th January 1996 to the date Mr Aust made his measurements.
Mr Aust said that photographs 4, 5 and 6 in exhibit D4 show the single aluminium ladder, (3.6 metres in length, 0.4 metres in width with step heights of 0.31 metres and equipped with rubber feet, which he used in his reconstruction), and the trailer, in the respective positions the defendant told him to place them, the foot of the ladder being on the kerb and the nearside wheel of the trailer (aligned parallel with the kerb) being 3-4 inches from the kerb; the rear of the trailer is approximately aligned with or very slightly north of the left (or southern) stile of the ladder. That is different from the positions the defendant described them to be in her evidence – she said the rear of the trailer was a foot or two from the nearest part of the ladder. However, Mr Aust said, and I accept that whether the rear of the trailer was positioned as shown in photograph 4 or about two feet to the north of the ladder, when the combination was driven forward, that is to the north (the manoeuvre the defendant described) the trailer did not and could not contact the ladder. That was the first “reconstruction” which Mr Aust carried out, the vehicle/trailer combination being driven by Mr Bob Mack who assisted him in that, and other manoeuvres to which I now turn.
Mr Aust then positioned the ladder against the DAS Building such that the foot of the ladder was approximately 20 centimetres west from the kerb, as shown in photographs 11 and 12, and reversing manoeuvres of the vehicle/trailer combination were carried out starting from a position parallel to the kerb, the nearside wheels of the combination being 70 millimetres (left front wheel) 103 millimetres (left rear wheel) and 80 millimetres (trailer wheel) from the kerb and the rear of the trailer 2 metres north of the ladder. The same manoeuvre was performed with the rear of the trailer l.5 metres north of the ladder, the nearside wheels of the combination being 60 millimetres, 35 millimetres and 25 millimetres from the kerb.
Mr Aust said that for the trailer to come into contact with the ladder it was necessary not only for the trailer to be travelling in reverse but also that the left rear corner move in a westerly direction (that is rotate clockwise) which could only occur if the front of the towing vehicle also moved to the west by rotating anti-clockwise. The combination was therefore put into reverse motion after the steering of the towing vehicle was turned about two thirds of a turn to the right for the manoeuvre commencing two metres from the ladder, and one full turn to the right for the manoeuvre commencing 1.5 metres from the ladder. In the first case photographs 19-29 show the combination in various successive positions in the course of the reversing manoeuvre in which the left hand front wheel of the towing vehicle and the left wheel of the trailer mount the kerb to, as Mr Aust described, bring the trailer into contact with the second rung of the ladder. The reversing manoeuvre commencing 1.5 metres from the ladder is shown in photographs 39-47 which also brought the rear of the trailer into contact with the second rung of the ladder.
Mr Aust described that on an hypothesis the protective structure surrounding the left rear light assembly of the trailer came into contact with the northern stile rather than the second rung of the ladder, the trailer was positioned to achieve that contact, he stood on the third rung of the ladder and the combination was slowly reversed (in a “creeping type motion”). Mr Aust observed that the top of the ladder moved in a southerly direction. The force applied to the stile of the ladder by the trailer also deposited a paint trace on and slightly indented the ladder at the point of contact which was at a height of 430 millimetres above the level of the footpath.
In his report Exhibit D4 Mr Aust summarised his opinion as follows:
“15.1In my opinion, if the ladder had been contacted by the reversing trailer, the top of the ladder would have moved in a southerly direction. As such, I agree with the opinion of Mr Maddern in this regard.
15.2On Ms Gilligan’s account, if the ladder had been positioned generally in line with the rear of the trailer, and if Ms Gilligan had simply driven forward and away from the kerb, contact between the trailer and the ladder would not have occurred.
15.3On Mr Nikoloudakis’ account, i.e. if the trailer had been reversed somewhere between 1.5 and 2 metres, it is my opinion that it is possible that contact between the trailer and the ladder could have occurred.
However, for this to have occurred a considerable amount of right hand steering lock (at least two-thirds of a turn) had to be applied as soon as reversing began. In addition, the left front tyre of the Mitsubishi had to mount the 105 mm hight (4”) concrete kerb, followed by the same behaviour from the left trailer tyre.
It is therefore my opinion that although the Mitsubishi and trailer could be reversed and steered in a manner which would cause the trailer to contact the ladder, the manoeuvre would be unusual in that the front left tyre would have had to have been deliberately steered (in reverse) up the concrete kerbing.
Such a manoeuvre is considered unusual on the grounds that if it is assumed that the Mitsubishi and trailer were parked close to and generally parallel to the kerb, i.e. with the front wheels generally straight ahead, then it would be expected that a driver who planned to reverse a short distance would simply reverse without turning the steering wheel to any great extent.
If an attempt was being made to simply reverse the Mitsubishi parallel to the kerbing then any front left tyre to kerb contact would be expected to be fairly light but at the same time would be likely to alert the driver that the desired path was not being following. In addition, it is considered likely that such contact would tend to straighten the steering and reduce the probability of the tyre mounting the kerb.”
As part of his activities in Morney Street, Mr Aust observed that the vehicle/trailer combination he used, when parked close to and parallel to the kerb with the steering of the vehicle turned to full right lock, required 2.5 metres of free space ahead of the vehicle “to enable the parking position to be left by simply driving forward”. In his evidence he said, and I accept, that the particular model Pajero being driven by the defendant was equipped with power steering which he commented would enable “even a lady driver” to turn the steering wheel to right full lock while the vehicle was stationary.
In his report Exhibit D15:
·Mr Aust postulated that were the plaintiff to have been positioned 2.4 metres above the ground on a ladder, the foot of which was on the kerb as shown in photographs 5 and 6 of Exhibit D4, leaning and stretching to his right using a scraper in his right hand and holding onto the ladder with his left hand, then if the plaintiff momentarily overbalanced to his right
“… it would appear possible that Mr Nikoloudakis would have attempted to regain his balance by pulling on the left leg of the ladder with his left arm.
As such, if Mr Nikoloudakis suddenly applied force to the left leg of the ladder it appears possible that he would rotate the ladder in an anti-clockwise direction (viewed from above) such that the top of the left leg of the ladder would move off the wall. In addition, the left foot of the ladder could move off the concrete kerbing towards the centre of the road.
Under this latter condition, if Mr Nikoloudakis’ action in pulling on the left leg of the ladder, managed to move his upper body to the centre of the ladder, the now unsupported left foot of the ladder would have moved downwards, thus causing the ladder and Mr Nikoloudakis to fall to the left, i.e. in a southerly direction.”
Mr Aust carried out a test in which he “leant out to the right such that the greater part of (my) bodyweight was carried by the right foot of the ladder. Force was then applied through the left arm to the left leg of the ladder. It was found that the ladder could be rotated in an anti- clockwise direction such that the left foot of the ladder moved outwards, i.e. away from the wall against which the ladder was resting. It is therefore my opinion that, if the feet of the ladder used by Mr Nikoloudakis were positioned on the edge of the concrete kerbing and Mr Nikoloudakis overbalanced to his right, then in recovering his balance the ladder could have become destabilised such that the ladder and Mr Nikoloudakis would have fallen to the left i.e. in a southerly direction”.
·Mr Aust described that in a Mitsubishi Pajero vehicle, he personally carried out a reversing manoeuvre: “With the engine running, the steering was turned to two thirds of a turn to the right and the vehicle was slowly reversed. It was found that the effort to hold the steering wheel increased as the kerb was mounted and it was observed that the left side of the vehicle was being raised. It was also found necessary to slightly increase the engine speed to avoid stalling. The test was repeated with the steering turned one turn to the right. The same effects were noted but with slightly greater pull on the steering wheel as the kerb was mounted. On the basis of these tests, it is my opinion that a driver parked close to the western kerbing and reversing with the steering on right lock would be aware that the left front tyre had mounted the kerbing.”
Having summarised the two reports prepared by Mr Aust I turn to the evidence of Mr Maddern.
Mr Maddern agreed that except where both the trailer and the foot of the ladder were on the roadway, or the trailer was so close to the kerb that portion of the trailer (the tray or the mudguard) projected over the footpath, the foot of the ladder being on the footpath, the trailer could not have come into contact with the ladder if the trailer vehicle combination had been driven forward.
Mr Aust was also taxed in cross-examination with the possibility of an “hooking” contact occurring between the trailer and the northern stile of the ladder were the trailer to have been driven forward after contacting the second rung of the ladder in the manner of the test carried out by, or for, Mr Aust. He said that were that to have occurred the effect would be to increase the load on the northern stile of the ladder causing the ladder to fall to the north. The plaintiff’s evidence is that the ladder fell to the south; that is the basis on which he conducted his case. There is no evidence that the ladder fell to the north; in my opinion the “hooking” hypothesis put to Mr Aust must be rejected.
As to each of the reversing manoeuvres with the vehicle/trailer combination which Mr Aust described in his report, Mr Maddern accepted Mr Aust’s observations, and what is shown in the photographs in Exhibit D4 relating to those manoeuvres. However he postulated that were the reversing movement to have been performed from a position where the trailer was approximately twenty centimetres further north from the ladder than the two metres reported on by Mr Aust, the trailer would have struck the northern stile of the ladder.
Mr Maddern also described, with the aid of his sketches comprising Exhibit P16, possible positions of the vehicle/trailer combination relative to the kerb, where both parts of the combination were not approximately parallel to the kerb at the commencement of a reversing manoeuvre, but one, or other, or both of them were at an angle to the kerb; in his opinion reversing the combination from each position could bring the trailer into contact with the ladder, without (as I infer) the front left wheel of the towing vehicle mounting the kerb. It is not clear to me whether a reversing movement beginning from each of the starting positions Mr Maddern described and sketched would cause the nearside wheel of the trailer to mount the kerb or that would occur in only some cases.
The alternative commencing stationary positions of the vehicle/trailer combination, postulated by Mr Maddern, were but examples of what he said were the “enormous possibilities of the trailer and car positions that end up with some sort of reversing manoeuvre in contacting the ladder”. Nevertheless, as I infer, each of them was predicated on both the trailer and towing vehicle not being approximately parallel to the kerb.
Mr Aust when directed to this particular topic said that when positioning the vehicle/trailer combination to carry out his tests he attempted to place it parallel to the kerb “in general terms” and very close to the kerb, “parallel to” and “very close to” the footpath being the plaintiff’s description of its position in the answer he gave to Question 11 in his answers to interrogatories (Exhibit D6). Mr Aust said “Unless you really get it a long way from parallel, at the end of the day you are going to come up with the same conclusion”, that is in a reversing movement of the combination to bring the trailer into contact with the ladder the left front wheel of the towing vehicle would mount the kerb. However he agreed that were the combination parked such that the front of the towing vehicle was angled away from the kerb and the rear of the trailer angled in toward the kerb, that is the two parts of the combination were in alignment each with the other but at an acute angle to the kerb, a reversing movement could bring the rear of the trailer to project over the kerb and he accepted the hypothesis that the greater the acute angle of the combination to the kerb the shorter the distance which would be traversed before the rear of the trailer protruded over the footpath. Mr Aust also agreed that if the combination were to be in a position such as that relative to the kerb and a right-hand lock were to be applied to the steering wheel while reversing there would be “a more rapid angulation of the trailer over the kerb than … if the vehicle and trailer were parked parallel when the same manoeuvre was carried out”. There was this exchange:
(p302)
"QCan I suggest that, depending on reasonably small variations in distance, you could get quite a marked change in how far you would be able to or how quickly the trailer would angle around, such that the rear of it would start to project over the kerb, the trailer was already started at an angle.
AThe trouble with – it is all a matter of degree, I think.”

The only direct evidence in the plaintiff’s case which bears upon whether or not the defendant reversed the combination is that of Mr Bryan who deposed that when he went to the plaintiff’s aid he saw the rear of the trailer about one metre or so to the north of the plaintiff’s position on the roadway, that it was at an angle to the kerb and the nearside wheel was “hard into the gutter and slightly up off the ground and the corner of the trailer was hanging over the footpath a little” projecting about 20 centimetres. That was his description. I do not place too much weight on his identification of photographs 24 and 25 of Exhibit D4 as depicting what he saw, except in the broadest way. It is the case, I think, that Mr Bryan had not seen those photographs before they were shown to him in the witness box, but I remind myself of the tendency for a photograph to, perhaps unconsciously, supplement or partly displace a memory.
Mr Bryan I find was a frank and honest witness. However he too laboured under the disadvantage of a lapse of many years between the time he gave his evidence and when he observed what he related. Mr Bryan said in effect that on hearing the plaintiff say the ladder slipped and caused him to fall he (Mr Bryan) “stopped looking or thinking about the vehicle” and concentrated on the plaintiff. When he was questioned by Mr Kelly (Exhibit D12) he did not mention the trailer and neither did he identify where “the green station wagon” (as he initially thought the defendant’s vehicle to be) was in relation to the plaintiff other than to say it was very close to the plaintiff. Mr Bryan agreed that when he spoke to Mr Kelly he had no clear recollection of the trailer, however he said it has always been in his memory that the trailer was a metre or so from the plaintiff’s position on the ground, he has a clear recollection of the trailer wheel being up on the kerb and he said he was “pretty sure” the rear of the trailer was much closer to the plaintiff than two or three car lengths.
I find it surprising that Mr Bryan did not tell Mr Kelly what he said he observed concerning the position of the trailer, and it’s nearside wheel, in relation to the kerb; in my view it was an important observation in the context of questions to him about an injury to the plaintiff in the course of his employment and the cause of it. I find puzzling his explanation that he did not think the questions to him about the vehicle and trailer concerned the position of the trailer, particularly in the context of an earlier answer in Exhibit D13 (answer 41) “The car was very close to him it was sort of in motion when I initially first looked then and my first thought was ‘the car has knocked him over’ and so I raced down to see what had happened” and his knowledge, at the time of his questioning, of an allegation that “the lady had reversed back with the trailer and you know bumped his ladder” (D13 answer 62).
The defendant I observed, particularly in cross-examination, did appear at times unsure about some matters and some of what she first said she changed – for example the distance she drove the combination from the parked position.
The defendant’s Pajero vehicle was about 4.53 metres in length (Mr Aust’s evidence as I accept). The defendant said her vehicle was parked 2-3 car lengths behind a vehicle ahead of it that is, using the defendant’s vehicle as the measure, 9-13.5 metres – 30-44 feet. That there was a vehicle parked in front of the defendant’s combination is something the plaintiff also observed although he could not say what was the distance between them, and Mr Bryan also saw, after the accident, a vehicle parked 1½ - 2 metres in front of the defendant’s vehicle. There was a distance of about 30 metres between Mr Bryan’s position and where the plaintiff was on his ladder.
The length of the tray of the defendant’s trailer was (Mr Aust’s measurement which I accept) 2.23 metres, so the overall length of the combination was 6.76 metres plus an unknown distance taken up by the coupling mechanism which, from paragraph 9.1 of Exhibit D4 and photograph number 4, I would estimate to be not less than 1.18 metres, say 7.94 metres or about 8 metres.
Consistent with Mr Bryan’s evidence that there were “vehicles” parked at the kerb between his position and the plaintiff’s ladder, there was more than sufficient distance to permit the front of the defendant’s vehicle to be up to three car lengths from the rear of the vehicle in front of it and to carry out a manoeuvre, such as that she described, to drive the combination back to the kerb after she heard the ladder fall.
I have accepted the plaintiff’s estimate of the distance between his ladder and the rear of the trailer. Were there to have been two or three car lengths between the defendant’s combination and the vehicle ahead of it, there is no obvious reason why the defendant would have thought the ladder might be endangered by her driving the combination forward into the northern carriageway; but if the distance to the vehicle ahead of the combination was not at least 2.5 metres the evidence is that the combination would have to be reversed before the defendant could drive out into the carriageway. Were that to have been the position, the driver of the combination, it is to be expected, would look carefully to see whether or not a reversing manoeuvre might endanger the ladder.
The defendant described a manoeuvre, when she drove away from her parked position, in which she moved out from the kerb, heard the noise of the falling ladder, stopped and then drove back toward the kerb where she left the vehicle and went to the plaintiff’s aid. My assessment of her evidence on the topic is that it was a hurried, untidy manoeuvre to the kerb but there is nothing in the defendant’s evidence from which it could be found that the trailer’s final position would be, in relation to the kerb, like that Mr Bryan described.
The defendant was adamant that there was a distance of 2-3 car lengths between her combination and the vehicle parked ahead of it when she returned to the combination. If I accept her evidence on that matter there is no reason why the defendant would need to reverse her vehicle; a clear space of 2.5 metres ahead of her vehicle would be sufficient to permit the defendant to drive away from the kerb into the north bound carriageway. The defendant said she was not practised in or confident about reversing the combination and that she looked at the positions of the trailer and the ladder to decide whether she could drive away without, in effect, endangering the ladder.
The defendant’s evidence of the distance over which she performed the manoeuvre she described was, as she was brought to agree, wrong. If the defendant did carry out that manoeuvre it is likely it would have brought the front of the vehicle to be a distance from the vehicle parked ahead of it in the order of that Mr Bryan said he observed it to be – one to one and a half metres, but the rear of the trailer would have been a considerably greater distance from the plaintiff than the metre or so Mr Bryan said it was. The distance of the trailer from the plaintiff, its angulation with and position in relation to the kerb and the distance between the defendant’s four-wheel drive and the vehicle ahead of it – all as described by Mr Bryan – is consistent with the defendant reversing the combination.
Earlier in these reasons I expressed surprise or puzzlement that Mr Bryan did not tell Mr Kelly what he saw concerning the position of the trailer relative to the kerb and to the plaintiff on the roadway. However, Mr Bryan impressed me as a thoughtful and careful witness and I accept the reason he gave for the omissions, that is he was not asked by Mr Kelly questions with such particularity – that is consistent with my own assessment of Mr Bryan in answering questions in the course of giving his evidence.
It is, one might suppose, always a possibility that by some train of events the plaintiff’s ladder became unstable and caused him to fall. One such possibility is the ladder pivoting. I have found that the plaintiff placed the foot of his ladder up to 20 centimetres from the kerb. The evidence of Mr Maddern and Mr Aust, I find, combines to make it so unlikely as to be improbable that the southern stile of the ladder pivoted and dropped into the gutter because of a movement of the ladder precipitated by the plaintiff in the manner canvassed by both engineers in their evidence, and which the plaintiff denied.
The only other possibility arising on the evidence is that the defendant’s combination reversed, the trailer struck the plaintiff’s ladder destabilising it and caused the plaintiff to fall to the roadway.
Although the observations of those who went to the plaintiff’s aid suggest it is unlikely the plaintiff was rendered unconscious by his fall, I accept he was dazed. In his dazed state he could well have been confused about what had happened, which could account for what he said at the scene. I accept his evidence that he was not expecting the defendant to reverse her combination and when the defendant reached the driver’s door he turned his attention back to his work remaining focussed on that when he heard the engine of the towing vehicle start. There is an apparent inconsistency in his evidence; at the scene his responses to questions as to what happened made no suggestion the defendant’s trailer had struck his ladder and, he said, in effect it was not until he was in hospital that he worked out what had happened. Yet (as I accept) he said to Mr Bryan about three hours later the reason why he had not earlier told Mr Bryan the defendant’s trailer struck his ladder was “(the defendant”) was a nice lady and he didn’t want to cause any trouble”. However I think it would be an error to make too much of the apparent inconsistency; it is not unlikely, because he was dazed, he was unsure, when at the scene, whether or not his ladder was struck and he later put his memory of events in order.
The manoeuvre the defendant described she carried out would have taken the combination, on her evidence, up to two car lengths further north from its stationary position and occupied a span of time to accomplish before the defendant got out of the vehicle and went to the plaintiff’s aid. She said she reached the plaintiff before Mr Bryan did. The effect of Mr Bryan’s evidence, as I find, is that on hearing the crash of the ladder he looked and, inter alia, saw a movement of the defendant’s vehicle then ran to the plaintiff’s position. In my opinion it is unlikely the defendant would have reached the plaintiff before him were she to have carried out the manoeuvre she described to finally stop up to two car lengths north (9 metres) from her previously stationary position; but if the rear of the defendant’s trailer was “a metre or so” north from where the plaintiff was lying on the roadway (and there is no evidence the plaintiff stumbled or rolled, for example, to the north of the position where he first landed on the roadway) then it is very likely the defendant would have got to the plaintiff before Mr Bryan did
I accept Mr Bryan’s evidence that when he went to the plaintiff’s aid he saw the trailer about a metre or so from the plaintiff, it was at an angle to the kerb, the nearside wheel was as he described up on the kerb and part of the trailer was projecting over the footpath. The manoeuvre that the defendant described could not, as I find, have brought the trailer to be in that position. Therefore I do not accept the defendant’s evidence that she manoeuvred the combination in the way she related. For the trailer to have been in the position, in relation to the kerb, Mr Bryan observed it to be I find the combination must have been reversed.
I have earlier said that both the plaintiff and the defendant described the combination to be parallel to the kerb. Nevertheless in the apparently careful and deliberate endeavour by Mr Aust and his helper (Mr Mack) to position the combination parallel to the kerb that was not precisely achieved. The plaintiff said (and I accept) he did not hear an increase in the engine noise before he felt the knock to his ladder, from which I infer there was no acceleration such as would be necessary to drive the front wheel of the towing vehicle on to the kerb, but rather the combination was reversed without that occurring. From that I find either the combination was not as close as three or four inches from the kerb, or more likely than not it was at an angle to the kerb (the position Mr Maddern showed in one of the sketches P16), the trailer being closer to the kerb than the front of the towing vehicle so that, on reversing the trailer was propelled (over a distance up to 1.5 metres) up on to the kerb to collide with the ladder; the defendant then drove forward by a short distance to stop in the position Mr Bryan saw the trailer.
The distance between the towing vehicle and the stationary vehicle ahead of it which Mr Bryan said he observed to be 1.5 metres to 2 metres when he reached the plaintiff (and I accept his evidence) is consistent with there being, or the plaintiff thought there to be, too little space for the defendant go forward from her stationary position into the carriageway without first reversing the combination. A need to reverse would explain why it was the defendant on going to the plaintiff inquired of him whether it was her fault he had fallen from the ladder.
I find that the combination under the control of the defendant reversed and caused the trailer component of it to strike the ladder destabilising the ladder which resulted in the plaintiff falling to the roadway. The defendant was negligent in either deliberately carrying out the reversing manoeuvre or inadvertently causing that to occur when she knew or should have known the trailer would likely collide with the ladder.
Counsel for the defendant expressly abandoned any claim that the plaintiff was guilty of contributory negligence.
There will be judgment for the plaintiff against the defendant on the issue of liability.

[2002] SADC 19

27 February 2002