Sarri v The Owners - Strata Plan 1260 [2006] ACTSC 83 (18 August 2006)

Last Updated: 13 February 2007

BARBARA JEAN SARRI v THE OWNERS - STRATA PLAN 1260

[2006] ACTSC 83 (16 August 2006)

EX TEMPORE JUDGMENT

NEGLIGENCE - duty of care - occupiers' liability - duty of body corporate to resident unit holder - units plan lease boundary

NEGLIGENCE - breach of duty - hidden hazard - plaintiff stepping from nature strip onto path - tripped on edge of path - soil had subsided - grass had grown to cover height differential - maintenance carried out by units plan members - quarterly inspections by agent

Real Property (Unit Titles) Act 1970

No. SC 556 of 2003

Judge: Master Harper

Supreme Court of the ACT

Date: 16 August 2006

IN THE SUPREME COURT OF THE )

) No. SC 556 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: BARBARA JEAN SARRI

Plaintiff

AND: THE OWNERS -

STRATA PLAN 1260

Defendant

ORDER

Judge: Master Harper

Date: 16 August 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the defendant.

2. The plaintiff pay the defendant's costs up to and including 20 July 2005 as between party and party, and after that date as between solicitor and client.

1. The plaintiff and her husband are the owners of a townhouse in a development of ten units at Nicholls. They purchased their unit about twelve months prior to an incident on 9 January 2002 when the plaintiff tripped and fell and suffered injuries. She brings this action against the statutory corporation which came into being under the Real Property (Unit Titles) Act 1970 on registration of the units plan in respect of the development.

2. The plaintiff's evidence is that at about 6.00 or 6.15 am on that date she woke up, went to the toilet and then went outside to take some rubbish to a wheeled rubbish bin on the grass verge or nature strip outside the units, along their street frontage with Freda Bennett Circuit. The plaintiff walked from her unit along a concrete driveway, onto the grass to her bin, where she deposited the rubbish.

3. On the edge of the front boundary of the development there was a brick wall about three metres long, which had set into it the letterboxes for each of the units. In front of that wall facing the street was a concrete platform or apron about a metre in width and three metres in length, extending from the driveway to the end of the wall. I am satisfied that the purpose of the apron, which had been in place since before the plaintiff and her husband bought their unit, was to provide a platform for residents to access their letterboxes.

4. The plaintiff walked from the bin back towards her unit. She noticed what appeared to be some junk mail protruding from her letterbox, which was at the end of the wall closest to the driveway. She made a decision to collect the junk mail. She walked towards the letterbox. She was wearing a nightgown, dressing gown and sheepskin slippers with rubber soles.

5. As she got close to the letterbox, she tripped and fell onto her outstretched right arm and the right side of her body. She was not immediately aware what had caused her to trip. She was shaken up by the incident. After a time she got up and was able to walk back to her unit. She woke her husband and told him that she had fallen and injured herself. She said that she was in considerable pain, and her husband's observation confirmed this.

6. There was some confusion in the evidence as to what precisely she said to her husband to describe how she had hurt herself. The confusion was compounded by the fact that the records of Calvary Hospital, where her husband drove her, contained a note by a nurse in the following terms, "This am woke up to go to the toilet and accidentally tripped and landed on her arm." The notes also contained another note apparently made by a doctor, "patient fell onto outstretched hand on floor at 6.59 am." I interpolate that 6.59 am was clearly a mistake, that being the time that the patient presented at the hospital.

7. The use of the word "floor" can in part be explained by the fact that when giving her oral evidence the plaintiff said that she had fallen to the floor, by which she clearly meant the ground or the apron in front of the letterboxes. I found the plaintiff generally an honest and credible witness and a very frank woman, though her memory was not entirely reliable. I accept her sworn evidence in preference to any inference that might be drawn from the hospital notes or any confusion in her husband's evidence. I am satisfied that she tripped and fell, as she said she did, on the apron of the letterboxes.

8. X-rays were taken at the hospital. An undisplaced fracture of the shoulder end of the right humerus, not involving the joint, was detected. The plaintiff was discharged with her right arm in a sling. She is naturally left-handed. The plaintiff conceded that she had suffered from low back pain for a lengthy period prior to the fall. She said that the fall had aggravated the low back pain, which was much worse than it had previously been and which remained, and remains, worse.

9. The plaintiff had her arm in a sling for about six weeks. I am satisfied that the shoulder fracture made a slow recovery but that after about six months she had generally recovered from that injury, with the exception that she has been left with some restriction of movement. This has the effect that she is unable to reach up above her head with her right arm, and restricts her in a number of previous activities.

10. The plaintiff had been in poor health for at least twenty years before the accident. She had heart disease which had led to bypass surgery in 1980 and again in 1999. By the time of her fall she was still on an array of medication for her heart condition and for blood pressure.

11. The plaintiff was born in July 1929 and is now seventy-seven years of age. She was seventy-two at the time of the fall. She migrated from the United Kingdom in the 1950s with her husband who had been a chef. The plaintiff worked in Australia as a waitress. She retired about twenty years before the fall. Her husband worked for most of his working life in Australia as a commercial real estate agent.

12. The day after the accident, the plaintiff's husband took her to the doctor. On the way there she pointed out to him where she had fallen, though I take it in general rather than precise terms. The plaintiff's husband took photographs, some before the precise position had been pointed out to him and some after. It is not clear which are which. The plaintiff's husband has marked on one of the photographs the letterbox in question, and marked with a cross the point at which he says his wife told him she fell. That point is consistent with her evidence as to her path from the rubbish bin to the letterbox.

13. The plaintiff's husband checked the surface of the path and the grass. He noticed that, apparently due to subsidence of soil, the soil level of the grassed area was some distance below the surface level of the path or apron. The husband's oral evidence was that he measured this drop as between 7 and 9 centimetres, which I find is a mistake, perhaps in his recollection; it cannot be correct. I accept that he did find a differential in levels and I find that it is likely to have been of the order of 2½ to 3 centimetres.

14. It is apparent from a photograph taken from a position on the grass facing the wall and apron that, for some of its length, the apron was visibly above ground level, by a margin of the order of 3 centimetres as far as one can tell from the photograph. It is also apparent from the photographs in evidence that at the point indicated as being where the plaintiff crossed the line between the grass and the path the differential in level was not visible, being covered by grass.

15. The case now put on behalf of the plaintiff is that the front of her slipper must have struck the edge of the path at about the point indicated, causing her to trip and fall forward. It seems to me that that is more probably than not the mechanism and cause of the fall.

16. The case against the body corporate is that it was or should have been aware of the height differential, and owed a duty to persons in the plaintiff's position to fix the defect or at least warn of it. There is evidence that within a relatively short time of the fall action had been taken to remove the grass, raise the level of the soil to the same level as the apron and reseed the soil.

17. The evidence was that the members of the body corporate met annually and that there was no smaller council or executive committee which met during the year. That would be consistent with the small number of members of the body corporate.

18. Evidence was given by Ms Denise Thomas, a resident of the unit opposite to the plaintiff's unit and closest to the wall and apron in question. Ms Thomas had lived in her unit since 1995 when it was new and she had been involved with the body corporate ever since then. At some time in the early days of the development, before the plaintiff and her husband had moved in, the members of the body corporate made a decision not to engage a gardener or handyperson but to do the lawnmowing, gardening and other necessary tasks themselves as they arose. As part of that arrangement, Ms Thomas mowed the area of lawn adjoining the apron.

19. Her evidence was that she did not notice any danger or hazard, and I infer that in the course of mowing the grass in that area, she had not noticed the height differential. I can infer that the subsidence of the soil was a natural process of settlement that had taken place slowly over the period of six or seven years since the development was built.

20. There were also in evidence two documents described as property inspection sheets which establish that inspections were carried out by a person arranged by Canberra Units Plan Services, who provided administrative services to the body corporate, one during September 2001 and another during December 2001. I infer from this that the body corporate had made arrangements for such inspections to take place quarterly. The sheets do not allow for any particular detail but they have a number of headings in relation to which brief comments can be made. One of those headings is "Lawns, Gardens, Nature Strips". The comment for the September 2001 inspection under that heading is "Okay", which, I should add, is the same comment for the other four items of inspection. In December 2001 the comment for all five, including Lawns, Gardens and Nature Strips is "Good".

21. I am satisfied that a genuine inspection took place each time and that where it was necessary to note an item needing attention this was done. I am confirmed in that view by an entry in the December 2001 report under the heading "Fire Extinguishers, Letterboxes, Signage," which reads, "Letterbox of unit 1 is loose in brickwork, needs fixing". That is consistent with the photographs taken after the accident which show the number 1 letterbox to be at something of an angle by comparison with the other letterboxes. I am satisfied that inspections took place in September and December 2001, including an inspection of the lawns and nature strips, and that the body corporate received a report that all was in order in relation to that item.

22. Counsel for the defendant submits that the case is outside the usual range of occupiers' liability cases because the fall took place outside the leased area for the unit plan. This is apparent from a copy of a survey report in evidence, prepared in March 2003, showing the wall and apron as they were at the time of the fall. I am satisfied that the wall is within the leased area but that the boundary of the leased area runs parallel to the wall along the apron such that about a quarter to one-third of the apron is within the leased area and the balance of it is outside the boundary of the leased area and, in effect, on the nature strip, and that the edge of the apron on which the plaintiff caught her foot is on the nature strip and not in the leased area. To the extent that it is of any significance, it seems to me that the body corporate was relevantly the occupier of the area which included the point where the plaintiff caught her foot.

23. Counsel have not referred me to any legislation requiring an occupier or lessee to maintain the nature strip outside a property, nor to any requirement in the relevant Crown lease to that effect. Nevertheless I am satisfied that it is generally accepted in the Australian Capital Territory that it is the responsibility of a leaseholder to maintain the nature strip between the front property line and the street and that for that purpose at least, the lessee is an occupier of the nature strip: the more so in this case, where the bulk of the apron is situated on the nature strip. For that reason I am satisfied that any duty of care owed to a person in the position of the plaintiff is the same in these circumstances as if the injury had happened within the boundaries of the lease.

24. I am satisfied that there was a duty of care owed by the body corporate to the plaintiff. It is submitted by counsel for the defendant that any duty is of a lower order than would be owed to a member of the public by reason of the fact that the plaintiff is a joint owner of one of the ten units, but I am not satisfied that that is the case. It seems to me that the duty of care owed is the same, whether the person injured is a joint owner or resident of the development or an outsider.

25. The remaining question is whether there was a breach of the duty. I am satisfied that there was a hidden hazard. I am also satisfied that no individual was specifically aware of it. I infer from Ms Thomas's evidence that she was not aware of it, and there is no suggestion that any other resident was. Indeed, if Ms Thomas was unaware of it, it is very unlikely that anyone else was.

26. I am also satisfied that over the seven years or so from the construction of the development until the fall, no one else had tripped and fallen, and there had been no other incident from which the body corporate did or should have become aware of the hazard.

27. It seems to me that by arranging quarterly inspections of the property, including specific inspections of the lawns, gardens and nature strips, the body corporate was behaving reasonably and doing as much as would ordinarily be expected of a body corporate to keep itself informed of potential hazards so that they could be put right if identified.

28. I take account of the fact that this was a small development and that the body corporate had a small budget, about $5000 a year, although I make the obvious point that this was a decision made by the owners themselves. They were the ones who set the budget, set the levies and decided what to spend the money on. It was their decision to attend to routine gardening and maintenance work themselves rather than to employ tradespeople to do it.

29. Counsel for the plaintiff submits that Ms Thomas, the resident who accepted responsibility for the mowing of the grass on the nature strip, should have detected the differential in height and taken appropriate steps, and that her failure to do so should be regarded as negligent. I am not satisfied that that submission should be accepted. It seems to me from a perusal of the photographs that it is entirely consistent with the evidence of Ms Thomas and all of the other evidence that she mowed the grass on the nature strip in such a way as not to have become aware of the differential in height at the point where the plaintiff tripped. She would probably have noticed that there were other areas along the length of the apron where there was a visible differential, but it was not, it seems to me, incumbent upon her to do anything about that because she might reasonably have come to the view, if she thought about it at all, that those parts of the edge of the apron were visible so that a person approaching the letterboxes across the grass, as the plaintiff did, and keeping a proper lookout, could reasonably be expected to see the hazard and to act with due regard to it.

30. In the circumstances I am satisfied that the body corporate had no actual knowledge of the differential in height at the point where the plaintiff tripped. I am not satisfied that any negligence, either direct or through an agent, can be imputed to the body corporate. The plaintiff has not established negligence.

31. In case I am found to be wrong about that, I will proceed to deal with contributory negligence and damages. I am not satisfied that the plaintiff, had she succeeded, was guilty of any contributory negligence. It seems to me that from the direction in which the plaintiff was walking the hazard which caused her trip was not visible. Counsel for the defendant makes a good deal of the plaintiff's concession in her oral evidence that she was looking forward at the letterbox and not looking at the ground. That seems to me irrelevant, taking account of the fact that even if she had been looking at the ground, she would not have seen the hazard. I am not satisfied, in those circumstances, that any failure on her part to keep a proper lookout was in any way causative of her fall.

32. As to damages, the plaintiff is an elderly lady and in poor health. She suffered a very nasty experience and a serious injury to the shoulder. I am satisfied that her pre-existing low back condition was aggravated by the fall, causing her continuing low back symptoms. I accept on the medical evidence that to some degree her low back condition remains worse than it would have been if it had not been for this fall.

33. The plaintiff unfortunately has suffered at least one and perhaps two subsequent falls, suffering wrist and rib injuries and again aggravating her back condition. There is a claim for assistance provided by her husband, children and grandchildren. In that regard it should be said that prior to the fall they had a home-help person coming in to help in the house, and that this has continued. However, I do accept that the plaintiff required considerable additional help from her husband for six months after the accident, and that thereafter she has required some assistance from him from time to time because of her difficulties in using her right arm above shoulder level and in vacuuming.

34. The injury was a serious one and I accept the plaintiff's evidence about it. I thought that the evidence of her husband was, no doubt understandably and through a sense of concern for his wife, somewhat exaggerated. I accept that whilst the shoulder injury, not involving the joint, will not lead to arthritis of the joint, the plaintiff's restriction of movement will be permanent. I accept that some degree of aggravation of her low back condition will also be permanent.

35. I would have awarded general damages of $30,000, of which I would have apportioned $20,000 to the past and $10,000 to the future. The past component would attract interest of $2,000. Past treatment expenses are agreed at $2,408.70. I accept that there will be some additional future treatment expenses because of this fall, although the amount involved is difficult to arrive at with any precision because of the plaintiff's other treatment, her pre-existing backache and her subsequent injuries. I note that it is some four and a half years since the fall, and in that time the plaintiff's treatment has cost some $2,400, more of which should be apportioned to the period immediately after the fall. For the future I allow $500 for treatment expenses.

36. In respect of the past Griffiths v Kerkemeyer component, I allow two hours a day for the first six months after the accident at $18 an hour, which comes to just on $6,500. For the period from the end of that six months to date I allow a further $1,000, and a further $1,000 for the future. The past Griffiths v Kerkemeyer component attracts interest at commercial rates, the prescribed rate being 9%, and for that interest I allow $2,500.

37. The total of those damages is $45,908.70, and that is the amount I would have awarded had I found in the plaintiff's favour.

38. The defendant seeks a special order for costs on the basis of a Calderbank letter sent by its solicitors to the plaintiff's solicitors on 22 June 2005, in which it offered to bear its own costs to that date in return for judgment in its favour. The offer was open for twenty-eight days. Having heard counsel for both parties on this issue, I order that the plaintiff pay the defendant's costs up to and including 20 July 2005 as between party and party, and after that date as between solicitor and client.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 4 September 2006

Counsel for the plaintiff: Mr S H Pilkinton

Solicitors for the plaintiff: Blumers

Counsel for the defendant: Mr G J Parker

Solicitors for the defendant: Bradley Allen

Date of hearing: 15, 16 August 2006

Date of judgment: 16 August 2006