Yildirim v Ford

[2004] NSWCA 128

CITATION:	Yildirim v Ford [2004] NSWCA 128 revised - 10/05/2004
HEARING DATE(S):	20/4/04
JUDGMENT DATE:	30 April 2004
JUDGMENT OF:	Ipp JA at 1; Stein AJA at 2; Bell J at 25
DECISION:	The appeal be dismissed with costs.
CATCHWORDS:	Appellant injured by falling brick wall while unloading truck in adjacent street- Challenge to judicial findings of fact- whether patent defect in wall- whether wall had outward lean-Res ipsa loquitur
PARTIES :	Cafer Yildirim: Appellant Simon Ford: First Respondent Andrew Phillip Ford: Second Respondent
FILE NUMBER(S):	CA 40132/03
COUNSEL:	J.E Rowe/ J.A Darvall for the Appellant R.Seton SC/M. Avenall for the Respondents
SOLICITORS:	Coleman & Greig for the Appellant Abott Tout for the Respondents

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	7540/01
LOWER COURT JUDICIAL OFFICER :	Freeman DCJ

- 1 -

CA 40132/03
DC 7540/01

IPP JA
STEIN AJA
BELL J

30 April 2004

CAFER YILDIRIM –v-SIMON FORD & ANOR

JUDGMENT

1 IPP JA: I agree with Stein AJA.

2 STEIN AJA: The appellant, Cafer Yildirim, appeals from a judgment of Freeman DCJ dismissing his claim for damages for personal injury. On 18 August 1998 he was badly injured when a brick wall fell on him at the rear of premises in Experiment St Pyrmont. The brick wall formed the rear fence of premises owned, but not occupied, by the defendant (respondent).

3 The facts are recited in detail by the trial judge but briefly they are as follows. The appellant was driving a tabletop truck loaded with large boilers to be delivered to a construction site nearby the respondents’ premises. He parked partly on the footpath with the driver’s side of the tray adjacent to the subject brick wall. The truck was about a metre or less from the wall.

4 The appellant made two attempts to move one of the boilers on the truck tray to make it more easily accessible to a forklift. First, the appellant pushed the boiler with his feet, with his back up against the brick wall. This was not successful so he tried pulling the load. This did not work either. The appellant again tried to push the boiler with his arms and back braced against the wall and with one foot braced against the load. He pushed to the utmost of his strength but to no avail. He stopped and stayed in the position between the truck and the wall when the wall collapsed onto his back.

5 The wall was around 20 years old. It had an unsupported span between piers of a little more than 2 metres. It was a single thickness brick, about 2 metres or a little higher and 2.4 metres in length. At each end was an engaged pier.

6 According to the expert evidence the wall failed at between two and three brick courses above the ground. In its fall upon the appellant it rotated around this plane.

7 The appellant’s case was encapsulated in the evidence of his expert, a Mr Burn. He made two criticisms of the wall. First, that there was insufficient mortar in the joint along the plane of failure. Second, that the wall was not constructed in accordance with the relevant Australian Standard.

8 His Honour was critical of a number of aspects of Mr Burn’s evidence and preferred the evidence of Mr Koch, the defendant’s engineer, where there was disagreement between them.

9 His Honour did not accept the theory of the absence of the mortar, nor the relevance of the Standard. Rather, he preferred Mr Koch’s opinion that the wall, when built, was not in breach of any standards and was built of adequate workmanship.

10 The defendant only purchased the property in early 1997 (the accident occurred in August 1998) and had a tenant in occupation. The defendant was not aware of any fault in the wall, and on Mr Burn’s opinion, the defect in the mortar would likely not be obvious by a layman, assuming it existed contrary to the judges’ conclusion.

11 His Honour’s judgment then continued:

Perhaps in tacit recognition of the fact that liability in respect of the construction of the wall could not be sheeted home to the defendants, counsel for the plaintiff developed in his written submissions an ingenious proposition that the wall had a patent defect prior to its collapse in that it was leaning over into Experiment Street.
The wall must have been leaning, at the very least, at a ratio of 1 in 14 so the submission goes. This is based, it is said, on the report of Mr Koch in which he opined that “if the wall was to collapse without any appreciable force being applied, the wall would have had to have had an appreciable outward lean (more than 1 in 14 approximately)”.
This calculation was done on the basis that there was no mortar at the line of failure. If there was mortar at that level (as I found there was) then the angle at which the wall would have had to have been leaning would have to have been greater. This, so the argument runs, would have represented a significant and obviously patent defect in the wall. It was immaterial, in this context, that the defendant had no recollection of seeing the wall leaning and irrelevant that the plaintiff had not noticed the lean. “Patent” means “observable” not necessarily “observed”. If the lean was patent (as at that degree it surely would have been) then the defendants should have taken steps to repair the wall or warn the plaintiff and other passers by. Failure to do so would be a breach of their duty of care.

12 This submission was raised for the first time after the trial and oral addresses had concluded and in written submissions requested by the appellant’s counsel, Mr Rowe. In his submission in reply the respondent objected on the basis that no such case was included in the pleadings, the evidence or in final addresses. The defendant was obviously prejudiced.

13 His Honour said that there was substance in the submission. The case was never run on the basis that the wall was leaning out and presented a patent defect. The judge said that the defendant would be entitled to re-open his case. However, his Honour did not think the argument warranted this because it was made out in any case. His Honour said:

Consider this:-
The plaintiff, a professional truck driver, drove his 4-tonne truck onto the footpath so that it ended up with the tray adjacent to the defendant’s wall. The plaintiff must have driven past this wall by approaching it from the side or end on, as it were. His truck was not more than one metre from the wall. The defendant’s wall was preceded by another brick wall about which no complaint has been made and which appears in the photographs in Exhibit 2 to be vertical. The defendant’s wall was succeeded, in the direction in which the plaintiff was travelling, by a paling fence and another stretch of brick wall. Each of these appear to be vertical.
If the defendants’ wall was leaning to the extent suggested it would be, at its top, some 15 to 16 cm out of plumb at the very least . It would accordingly, protrude from the line of adjacent walls in a very dramatic fashion. It will be remembered that the plaintiff had driven his truck partially up onto the footpath and had driven in such a way that his driver’s side was closest to the wall. The plaintiff in his driver’s seat would not be more than a metre from an obviously leaning wall. Indeed the wall at its upper reaches would have represented nothing less than a traffic hazard to his driver’s side wing mirror.
Whilst it is possible, as plaintiff counsel submits, to accept that the plaintiff may not have noticed the wall leaning towards him when viewed from the front, it is inconceivable that he would not have noticed so obvious a defect when he was manoeuvring his truck so close to it and along its length. Its lack of conformity with the adjacent vertical walls would have made the lean glaringly obvious. The plaintiff himself said that he noticed nothing untoward about the wall and, given his angle of approach, he must have been able to notice any such lean. He agreed that he would not have leant against the wall himself had he seen anything untoward with it.

14 On the appeal the appellant raised precisely the argument raised before his Honour in his written submission, viz the leaning wall theory. The respondent countered that the appellant ought not be permitted to allege a failure by him to detect the presence of a lean in the wall.

15 In my view, there is merit in the respondent’s opposition. The leaning wall theory was in fact an entirely new case. It was not included in the pleadings. It did not in truth form part of the plaintiff’s case. Mr Burn put forward no such theory. Neither the plaintiff, nor the defendant noticed any lean in the wall, and the theory was never put squarely to either of them. The only appearance of the leaning wall in the case was a reference in the report of the respondent’s expert Mr Koch, which was in the context of criticising the veracity or accuracy of the appellant’s account of the accident.

16 In addition, if the leaning wall theory had been part of the appellant’s pleaded or particularised case, the defendant would have had lines of inquiry to the tenants, neighbours and occupiers and builders of the nearby construction site, as to the lean or its absence in the wall.

17 The prejudice to the respondent is manifest and the appellant ought not now be permitted to raise the issue on the appeal. Given the concession of the appellant’s counsel that the leaning wall theory is also necessary to the res ipsa loquitur argument, this submission must also fail.

18 It follows that the appeal should be dismissed. However, the falling wall theory should be rejected in any event for at least two reasons. First, his Honour found, and was entitled to find, that there was no lean in the wall. There was no evidence that anyone saw the wall to be leaning and the report of Mr Koch does not provide any evidence that it was leaning outwards. The finding of fact was not only open for his Honour to make it was the only possible finding on the evidence before the court. There simply was no evidentiary basis upon which the court could have found that the wall had an appreciable outward lean.

19 The appellant’s response to this is to say that for the accident to occur the wall must have been leaning and that this was the theory expounded by Mr Koch. This submission should be rejected. The context of Mr Koch’s remarks must be heeded.

20 In discussing the appellant’s explanation as to how the accident occurred, Mr Koch stated:

Further, consider the following.
The wall actually collapsed outwards and there was a delay of “approximately 10 minutes” (HL Burn Section 1.0) after application of this force until the wall collapsed outwards.
Initially, the wall would have had to have been pushed ‘inwards’ if the Plaintiff only used his body to push against the wall, which is as it is explained variously in reports.
A significant lateral force would need to have been applied outwards to the wall to cause it to collapse outwards. Nowhere in the records can we identify any reference which suggests any significant lateral force was applied outwards to the wall. The plaintiff pushed ‘inwards’.
If the wall was to collapse without any appreciable force being applied, the wall would need to have had an appreciable outward lean (more than 1 in 14 approximately). No comment is made in the reports suggesting the wall, which collapsed, had any significant lean to it.
I cannot reasonably conceive that had the plaintiff applied inward force to the wall that this would have left an appreciable outward lean so that the wall would later collapse without any appreciable force being applied.
I currently identify inconsistency in the information describing the actions of the plaintiff and my conclusions drawn based upon the application of engineering principles and my experience. On balance, I believe there is reason to doubt the accuracy of the description provided by the plaintiff of the events leading up to the collapse of the wall, the subject of this report.

21 In his evidence the appellant readily conceded that his assumption of a 10 minute delay between the pushing and the collapse was wrong. It was a “short period, a short time, a very short time”. His “guestimation” of 10 minutes was revised to “one or two minutes”.

22 When the proper context of the portion of Mr Koch’s report seized on by Mr Rowe is understood, it is plain that the engineer was not saying that the wall in fact would have had an outward lean of 1 in 14.

23 The negligence specified by the appellant’s counsel, of the respondent failing to observe a patent defect in the wall and taking steps to protect people in the street from the risk of injury from a falling wall, must be rejected. There simply was no evidence of a patent defect.

24 The appeal should be dismissed with costs.

25 BELL J: I agree with Stein AJA.

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Last Modified: 09/24/2007