Yogini v Eveille & Heritage [2006] ACTSC 13 (6 March 2006)

Last Updated: 6 April 2006

TRUDY YOGINI v BENJAMIN CHARLES EVEILLE &

MELISSA JACQUELINE HERITAGE

[2006] ACTSC 13 (6 March 2006)

NEGLIGENCE - personal injury - plaintiff fell over building material protruding onto footpath from residential building site -liability of occupier - whether duty of care - whether breach of duty of care - whether contributory negligence

DAMAGES - personal injury - injury to knee, hip shoulder and neck

Volman (t/as Volman Engineering) v Lobb [2005] NSWCA 348

Burwood Council v Byrnes [2002] NSWCA 343

Griffiths v Kerkemeyer [1977] HCA 45; [1977] 139 CLR 161

No SC 450 of 2004

Judge: Marshall J

Supreme Court of the ACT

Date: 6 March 2006

IN THE SUPREME COURT OF THE )

) No 450 of 2004

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TRUDY YOGINI

Plaintiff

AND: BENJAMIN CHARLES EVEILLE

First Defendant

AND: MELISSA JACQUELINE HERITAGE

Second Defendant

O R D E R

Judge: Marshall J

Date: 6 March 2006

Place: Canberra

THE COURT ORDERS THAT:

1. There be judgment for the plaintiff in the sum of $37,024.65.

2 The parties file and serve written submissions on the question of costs within 14 days.

3. There be liberty to either party to apply on not less than 48 hours notice in writing to the other party.

1. On the morning of 30 January 2003, Ms Yogini took her son's small Boston Terrier dog for a walk. She walked down her street, Hawdon Street, Ainslie, for a distance of about 50 metres from her home at 18 Hawdon Street. Ms Yogini commenced to walk past a block of land, from which a house had recently been removed, when she felt her loose-fitting shirt make contact with the upright end of a piece of reinforcing metal grid. She then tripped on the lower part of the metal grid which protruded onto the footpath from the land.

2. Ms Yogini sustained injuries in the fall. She injured her left knee, left hip, shoulder and neck. Until this incident, in recent times, Ms Yogini had been a fit woman in her mid fifties.

3. The property from which the metal grid protruded belonged to the defendants.

4. The following issues arise for determination:

* Did the defendants owe a duty of care to Ms Yogini?

* Did the defendants breach any duty of care owed to Ms Yogini?

* Was there contributory negligence on Ms Yogini's behalf?

* What is the appropriate sum of damages?

The building site

5. Ms Yogini fell on the footpath outside 34 Hawdon Street, Ainslie. At that time 34 Hawdon Street had no dwelling on it but the defendants subsequently erected a dwelling on the land. The materials on the land included some piles of builder's refuse.

6. The defendants had caused to be erected a temporary orange plastic mesh fence along part of the front boundary of the property. The orange mesh had been fastened to star pickets which had been hammered into the ground at regular intervals. The orange mesh did not reach over the driveway of the property. On the morning of 30 January 2003, a piece of metal reinforcing grid, 2 to 3 metres long and about 1.2 metres wide protruded from the defendant's property at an angle across the driveway onto the footpath. One end of the metal grid extended approximately half way across the footpath. The other end of the metal grid was folded so that it extended upwards at its end point in width. A brick nestled at a position on the grid at the base of the upward pointing protrusion, a few centimetres from the footpath.

7. Prior to 30 January 2003, the first defendant periodically checked on the state of the property at 34 Hawdon Street, usually when he drove past. On most occasions on which he did drive past the property he would not have been able to clearly observe what later confronted Ms Yogini as she walked down Hawdon Street towards the property.

A duty of care

8. The defendants owed a duty of care to members of the public, including Ms Yogini. The nature of the property was such as to involve an appreciable risk that it may become a source of public nuisance so that its occupiers should have taken reasonable steps to prevent or remedy any such nuisance; see Volman (t/as Volman Engineering) v Lobb [2005] NSWCA 348 at [44].

9. The evidence does not disclose that the defendants took reasonable steps to ensure that the footpath outside the property was not obstructed by materials on the property protruding onto the footpath. Such a reasonable step would have been to place a temporary safety fence around the property and/or a clearly visible sign warning pedestrians of possible danger.

Breach of duty of care

10. By not ensuring that the material on the property was securely fenced off or not otherwise contained on the land the defendants breached the duty of care which they owed to members of the public, including Ms Yogini. They also failed to properly warn members of the public of the danger posed by the protruding metal grid.

11. The presence of the metal grid, in its location when Ms Yogini approached, made the area adjacent to and on the footpath contain something unusual or unexpected which created a real danger for ordinary pedestrians; see Burwood Council v Byrnes [2002] NSWCA 343 at [29].

Contributory negligence

12. At the time of Ms Yogini's fall, the weather in Ainslie was fine. There was little, if any wind. The dog was a compliant walker. The upright point of the metal grid was visible for a reasonable time prior to Ms Yogini's approach. Gazing into the mid-distance and general inattentiveness seem to have been the causes of Ms Yogini not noticing the danger which was about to confront her. On the other hand she had a reasonable expectation that no danger would be present. Ms Yogini should have made a greater effort to be more aware of walking too close to the protruding metal grid. I assess the contributory negligence at 75%.

Quantum of damages

13. Ms Yogini damaged her left knee in the fall but medical reports going back as far as 1990 reveal an existing problem in that area. Ms Yogini's hips, in the words of Dr Gillepsie; " ... became acutely and significantly symptomatic because of this fall". The evidence also disclosed that Ms Yogini would have required hip replacements in the medium term future, in any event. The injury to the neck appears to be a flare-up of a pre-existing problem, dating back to a motor vehicle collision in 1992.

14. Ms Yogini remains physically unwell. Before her fall she walked mountain tracks on a holiday in Tasmania. She is now unable to engage in such an arduous activity. Her knee and, in particular, her hips continue to give her pain. The fall has taken away from her the chance that she may have lived pain-free in her hips for some years into the future. In that regard I consider that general damages should be assessed at $60,000. A sum of $2,040 for interest is to be added.

Expenses

15. Counsel for Ms Yogini claimed the following expenses which in the circumstances appear reasonable:

* Treatment expenses $ 2,964.60

* Hip treatment expenses (discounted by 20%) $21,714.00

* Future expenses - hip operation (discounted by 20%) $28,800.00

Griffiths v Kerkemeyer damages

16. Ms Yogini's daughter assisted her considerably after the incident and after her three consequent operations. Her counsel claimed $14,280 for past and future Griffiths v Kerkemeyer damages, consisting of five hours of assistance per day for eight weeks after three operations at $17 per hour. Counsel for the defendants did not contest the appropriateness of these figures except to indicate that most of this aspect of her claim arose from damage to Ms Yogini's hips and therefore should be discounted. Notwithstanding this, the figure proposed by counsel for Ms Yogini remains reasonable and I award $14,280 under this head of damages. The claimed interest component of $1,300 is also reasonable.

Economic loss

17. It is very difficult to quantify Ms Yogini's economic loss. But for the incident she would have continued with her modest business in which she engaged in yoga and massage teaching. It is unlikely that she could have made a living from that business given the modest amounts she had earned up to date. It is probable that she may have had to return to casual teaching in any event. In this context, it is noted that she retired, by choice, from full-time teaching in 2000 at about 50 years of age. I assess economic loss at $15,000. Past economic loss would be minimal having regard too her small pre-injury income. I assess it at $2,000.

Total damages assessment

18. The total damages assessment is as follows:

General Damages	$ 60,000.00
Interest	$ 2,040.00
Treatment expenses	$ 2,964.60
Hip treatment expenses	$ 21,714.00
Future expenses - hip operation	$ 28,800.00
Griffiths v Kerkemeyer	$ 14,280.00
Interest on past Griffiths v Kerkemeyer	$ 1,300.00
Economic loss	$ 17,000.00
TOTAL:	$148,098.60

19. As the damages must be reduced by 75% to reflect the contributory negligence, which I have imputed to Ms Yogini, there will be judgment in her favour in the sum of $37,024.65.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall.

Associate:

Date: 6 March 2006

Counsel for the plaintiff: Mr Mildren

Solicitor for the plaintiff: Pamela Coward & Associates

Counsel for the defendant: Mr Sharwood

Solicitor for the defendant: Meyer Vandenberg

Dates of hearing: 29 and 30 November 2005.

Date of judgment: 6 March 2006