Bamber v Hartman Pacific Pty Ltd

[This headnote is not to be read as part of the judgment.] On 8 January 2012, the appellant, Mr William Bamber, suffered a serious injury to his ankle when he fell to the ground as he was descending a ladder. The respondent, Hartman Pacific Pty Ltd (Hartman), was the manufacturer of the ladder and supplied the ladder to a retailer. In November 2011, Mr Bamber had purchased the ladder from the retailer and claimed that the ladder had not been used prior to the day of the accident. Mr Bamber commenced proceedings against Hartman in the Supreme Court alleging that there was a safety defect in the manufacture of the ladder and that the defect caused his injury. Mr Bamber sought damages under s 138 of Sch 2 - Australian Consumer Law of the Competition and Consumer Act 2010 (Cth) for his injury. Hartman denied that the ladder had a safety defect and asserted that, if it did, Mr Bamber was partly responsible for the fall because of his failure to check that the safety mechanism on the ladder was properly engaged before he ascended it. The primary judge dismissed Mr Bamber's claim. Her Honour was satisfied that Mr Bamber had not proven that his fall was the result of a defect in the ladder. The primary judge concluded that the evidence did not establish that the defects in the ladder occurred during its manufacture. Her Honour nevertheless concluded that she would have found Mr Bamber contributorily negligent for failing to check that the locking mechanism was engaged before extending the ladder. The primary judge determined that Mr Bamber was not a witness of truth and that, unless corroborated by someone other than his wife, Mrs Barbara Bamber, Mr Bamber's evidence did not provide a sound basis for finding in his favour. Her Honour did not accept Mr Bamber's evidence as to the consequences of his injury, including his ability to work. Mr Bamber appealed and argued that the primary judge erred in finding: (i) that Mr Bamber was not a witness of truth and that his evidence must be rejected unless otherwise corroborated by someone other than Mrs Bamber; (ii) that there was insufficient evidence to prove that the ladder was defective at the time of manufacture and at the time of supply, in circumstances where the expert witnesses agreed that the faults identified were manufacturing defects; (iii) that Mr Bamber was contributorily negligent; and (iv) by failing to consider all relevant evidence, concerning non-economic loss, past and future economic loss, future medical expenses and domestic assistance in her assessment of damages.

Held (appeal allowed) (Emmett AJA, Macfarlan and Gleeson JJA agreeing)

Credibility

1. While the primary judge may not have referred to each and every piece of medical evidence, her Honour engaged with the medical evidence and exposed her reasoning process in finding that Mr Bamber's evidence was inaccurate, exaggerated and implausible: at [73].
2. There were various inconsistencies between Mr Bamber's evidence and the documentary and oral evidence of other witnesses, and the primary judge was therefore entitled to find that those inconsistencies reflected adversely on Mr Bamber's credit: at [74]-[77].

Causation and contributory negligence 3. Expert evidence revealed that the hauling rope was tighter than it was designed to be, such that it had the tendency and capacity to prevent the safety mechanism from locking fully. It is more likely than not that the excessive tautness of the hauling rope was present when the ladder was supplied by Hartman to the retailer, and that that defect had a causal connection with Mr Bamber's injury: at [91], [94]. 4. Mr Bamber failed to follow the warning displayed on the ladder that the user should ensure that all "locking functions" were secure. That was an omission on his part, within the meaning of s 137A of the Competition and Consumer Act 2010 (Cth). Both the safety defect and Mr Bamber's omission caused the loss and damage suffered by Mr Bamber: at [97]. 5. Mr Bamber's damages should be reduced by 30 percent, in accordance with the primary judge's assessment of Mr Bamber's contribution to the accident: at [98].

Damages 6. The primary judge did not err in her assessment of damages: at [101]-[117]. 7. There should be a verdict for Mr Bamber against Hartman in the sum of $73,531.47, which includes the reduction of 30 percent for Mr Bamber's contribution to the accident: at [117].

Judgment

1. MACFARLAN JA: I agree with Emmett AJA.
2. GLEESON JA: I agree with Emmett AJA.
3. EMMETT AJA:

Introduction The primary question in this appeal is whether a "Gorilla EL12/21-1" aluminium extension ladder (the Ladder), which was manufactured by the respondent, Hartman Pacific Pty Ltd (Hartman), had a safety defect when it was supplied by Hartman to a retailer and, if so, whether the injury suffered by the appellant, Mr William Bamber (Mr Bamber), when he fell while descending the Ladder, was because of the safety defect. It is common ground in the appeal that, in November 2011, Mr Bamber bought the Ladder from the retailer to whom Hartman had supplied it and that, on 8 January 2012, Mr Bamber suffered quite serious injury to his ankle when he fell some six metres to the ground as he was descending the Ladder. Hartman denies that the Ladder had a safety defect and asserts that, if it did, Mr Bamber was partly responsible for the fall because of his failure to check that the safety mechanism on the Ladder was properly engaged before he ascended it.

1. Mr Bamber commenced proceedings in the Common Law Division of the Supreme Court. Although a case in negligence was pleaded in a fashion, ultimately that case was abandoned, and Mr Bamber relied solely on a claim under s 138 of the Australian Consumer Law [1] . The claim under the Australian Consumer Law was reduced in scope, in that Mr Bamber abandoned so much of it as complained about the Ladder's design. Thus, the case was confined to a complaint of defect in the manufacture of the Ladder by Hartman. The pleading of the claim under the Australian Consumer Law was curious, in so far as it was alleged that Mr Bamber "suffered damage as a result of the defect in manufacture" of the Ladder, without any prior allegation that the Ladder suffered from a "safety defect". Nevertheless, the case proceeded on the basis that the issue was whether the Ladder was manufactured with two alleged "safety defects" and the extent to which any such safety defect caused Mr Bamber's injury.
2. Mr Bamber's wife, Mrs Barbara Bamber (Mrs Bamber), who saw her husband fall, also claimed damages for mental harm in separate proceedings brought by her in the Common Law Division. The two proceedings were heard together and, on 29 September 2017, for reasons published on that day, a judge of the Common Law Division (the primary judge) ordered that both Mr Bamber's proceedings and Mrs Bamber's proceedings be dismissed with costs. By Amended Notices of Appeal filed on 22 March 2018, each of Mr Bamber and Mrs Bamber appealed from the orders made by the primary judge in their respective proceedings. Mrs Bamber's appeal was settled on the day before the hearing and it is not necessary to say anything further about her claim or her appeal.
3. Section 138 of the Australian Consumer Law relevantly provides that a manufacturer of goods is liable to compensate an individual if the manufacturer supplies the goods in trade or commerce, the goods have a safety defect and the individual suffers injury because of the safety defect. Such an individual may recover from the manufacturer the amount of the loss or damage suffered by the individual because of the safety defect. For the purposes of s 138, goods have a safety defect if their safety is not such as persons generally are entitled to expect. In determining the extent of the safety of goods, regard is to be given to all relevant circumstances.
4. In its defence to Mr Bamber's claim, Hartman relied on s 137A of the Competition and Consumer Act 2010 (Cth) (the Consumer Act). Under s 137A, if the loss or damage to which an action under s 138 of the Australian Consumer Law relates was caused by both an act or omission of the individual who suffers the injuries referred to and a safety defect of the goods to which the action relates, the amount of the loss or damage is to be reduced to such an extent, which may be to nil, as the court thinks fit, having regard to that individual's share in the responsibility for the loss or damage.

The Evidence before the Primary Judge

1. Before dealing with the findings and reasons of the primary judge, it is desirable to say something about the evidence. Each of Mr Bamber and Mrs Bamber gave evidence before her Honour. Evidence was also given by Ms Judith Ball, an employee of Mrs Bamber in connection with the "Oxygen" studio gym business conducted by Mrs Bamber in Wagga Wagga (the Gym Business). In addition, Mr Gavin Rundle, the managing director of Hartman, gave evidence on behalf of Hartman.
2. The evidence before the primary judge also included opinion evidence by Mr Philip Xeros, a consulting engineer, and Mr Hugh Stark, a mechanical and structural engineer (together, the Consultants). Mr Xeros was retained on behalf of Mr Bamber to carry out an investigation and measurements and operational checks on the Ladder to determine whether it functioned correctly and whether there were any defects or malfunctions that might have contributed to the collapse of the Ladder. Mr Xeros first inspected the Ladder on 1 February 2013 and provided a report of 5 February 2013 (the Xeros Report). Mr Stark was retained on behalf of Hartman and was asked several questions in relation to the Xeros Report. He first inspected the Ladder on 7 July 2015 and provided a report of 5 August 2015 (the Stark Report). The Consultants jointly inspected the Ladder some 5 years after the accident and produced a joint report dated 2 February 2017 (the Joint Report). No objection appears to have been taken to the opinion evidence contained in any of the Reports.
3. Following the production of the Joint Report, Hartman provided to Mr Bamber and to the primary judge a statement of the issues in dispute. Relevantly, the statement formulated the issues as follows:

• whether Mr Bamber's fall from the Ladder occurred as alleged by him and, if not, how it occurred;
• whether the fall occurred as the result of any negligence on the part of Hartman in the design, manufacture, inspection or labelling of the Ladder;
• whether the fall occurred as the result of any safety defect in the Ladder within the meaning of s 138 of the Australian Consumer Law;
• whether Mr Bamber caused or contributed to the fall through his own negligence;
• whether Mr Bamber read and paid adequate heed to the instructions affixed to the Ladder prior to the incident;
• whether Mr Bamber failed to ensure the locking mechanism of the Ladder was secure before climbing it; and
• whether Mr Bamber inspected the Ladder before use. The statement also put in issue what injury, loss and damage, if any, was suffered by Mr Bamber as a consequence of his fall.

The Opinion Evidence

1. The Xeros Report explained the setup and operation of the Ladder. The Ladder consists of two sliding sections and can only be used with one side set at an angle to a wall, with the upper section on top. The instructions on the side of the Ladder specify the angle at which the Ladder should be set. The Ladder can be extended by means of a rope and pulley and rocking lock mechanism. The rope is a continuous piece and its length cannot be adjusted. The default position of the locking mechanism should be in the failsafe position of lock. When the Ladder is set in position, the underside rope is pulled to extend the Ladder to increase its length. When the desired extended length has been reached, the upper section of the Ladder is lowered back down so that the locking mechanism engages the next lowest rung.
2. The Ladder also contained a warning on its side as follows: "ENSURE ALL LOCKING FUNCTIONS ARE SECURE" The instructions also state that slip resistant footwear be used and that the Ladder should be inspected for any damage before use.
3. When he inspected the Ladder, Mr Xeros observed damage in the form of two bent rungs at the bottom of the Ladder. He also observed that the rope was partly damaged. Apart from the bent rungs and damaged rope, Mr Xeros did not observe any other damage to the Ladder.
4. The Xeros Report stated that excessive tension of the rope made the Ladder very difficult to use and unsafe. It said that, because the tension in the rope of the Ladder was too great, the locking mechanism was not completely released such that the pressure on the locking mechanism did not allow it to drop back under gravity to engage fully and lock over the lower rung. The Xeros Report also said that there appeared to be excessive friction in the movement of the Ladder up and down, which required that quite a large force be applied to the rope to get the Ladder to move upwards by way of extension.
5. The Xeros Report stated that partial locking can occur, whereby the locking mechanism sits on top of the rung but is not properly latched. When the locking mechanism is pushed back, it sits behind the rung and is firmly locked in. The Xeros Report said that it was extremely difficult to get the locking mechanism on the ladder to do that, which required considerable manipulation of the rope tension. It also said that the rope tension on the front needed to be released to allow the locking mechanism to rock back to engage a rung fully. However, reducing the tension at the front automatically increased the tension on the back rope and prevented the Ladder from moving downwards and engaging the rung. Even when the Ladder was manipulated up and down several times to engage the rung, it would not engage. The Xeros Report concluded that the Ladder was in a dangerous condition, in so far as the locking mechanism was riding on top of the rung and could slip off outward, causing the upper section of the Ladder to slide back down, resulting in the collapse of the ladder.
6. The Xeros Report also addressed the question of whether a user of the Ladder could determine whether the locking mechanism was properly engaged. It expressed the opinion that, when the upper section of the Ladder is three or four rungs from the top of the lower section of the Ladder, it is difficult for an average user to tell whether the locking mechanism is properly engaged. It also stated that, when the pressure is released off the rope, the upper part of the Ladder moves back down, after some manipulation, and stops, and the locking mechanism appears to be engaged. The Xeros Report asserts that, at that point, it is not clear to an observer that the locking mechanism is not engaged correctly and that it would be reasonable for a user to assume that the Ladder could be used. The Xeros Report expressed the opinion that the locking mechanism may appear to an average user to be engaged, as there was no clear instruction on how the locking mechanism was intended to work. It said that it was difficult to ensure that all locking functions were secure since, when the Ladder is extended to the greater lengths, it is difficult to see the locking mechanism clearly. However, it says, the locking mechanism would be easy to see if access was gained to the Ladder but it would be unsafe until the locking mechanism was properly engaged.
7. The Xeros Report referred to Australian Standard 1892.1 (the Standard), which deals with "Portable Metal Ladders". The Standard is applicable to the Ladder. The objective of the Standard is to provide designers, manufacturers and regulatory authorities with the minimum performance and dimensional requirements for portable metal ladders in order to minimise the risk to the health and safety of users. The Standard contains a section dealing with "latching devices", which states that Ladders in which the upper section is raised or lowered by rope are to be fitted with "latching devices" that operate to engage automatically should the rope break or be released. The locking device of the Ladder is a latching device within the meaning of the Standard.
8. The Xeros Report stated that tests carried out by Mr Xeros confirmed that, because the locking device did not engage automatically when the rope of the Ladder was released, the Ladder did not comply with the Standard. It stated that, when the Ladder was tested, the locking device did not re-engage during free fall or at all, such that the upper section of the Ladder fell all the way to the ground. The Xeros Report concluded that the Ladder had defects that caused it to collapse during usage, in that the locking mechanism did not operate correctly in that it did not engage under normal usage and manipulation. It concluded that one of the main problems with the Ladder was that the fixed rope had too much tension and did not allow the locking mechanism to "rock" under gravity loads and fully engage.
9. The Stark Report stated that its author was broadly in agreement with the general thrust of the Xeros Report but took issue with two matters. The first was the statement that there was excessive friction between the sections of the Ladder requiring excessive force to raise the upper section. While Mr Stark fully agreed that excessive force was required to raise the upper section of the Ladder, he had no doubt that that was a result of distortion or damage to the stiles of the Ladder caused by Mr Bamber's fall. That was damage in addition to the bent rungs and damaged rope observed by Mr Xeros.
10. The second matter concerned Mr Xeros' statement that it was difficult for the average user to tell if the locking mechanism was engaged. Mr Stark considered that the greatest danger existed when the user of the Ladder applied weight to the locking mechanism, after climbing past it onto the upper section of the Ladder. To get to the upper section of the Ladder, the user would have to pass over the protruding, partly engaged locking mechanism, which would be less than an arm's length from the eyes of the user. He said that, since Mr Bamber was on a rung towards the top of the Ladder when the fall occurred, he must have climbed over the protruding, partly engaged locking mechanism on his way up. Mr Stark expressed the opinion that a modicum of care and understanding of what is a very simple mechanism should cause a user to see the latching problem before passing over it, and so retreat to the ground. Mr Stark expressed the opinion that the Ladder would not have collapsed had Mr Bamber ensured that the locking mechanism was fully engaged.
11. Mr Stark also expressed the opinion that the Ladder complied with the Standard in respect of the latching device test. However, he considered that the Ladder itself did not appear to be in compliance with the Standard because of two "manufacturing faults" in the Ladder. First, the hauling rope loop was too short and, consequently, resting tension applied by it to the locking mechanism was sufficient to impede its ability to drop automatically into the fully engaged position under the action of gravity. Secondly, the four bolts that fix the two latch hinge brackets to the stiles of the Ladder appeared never to have been fully tightened.
12. Mr Stark found nothing to indicate that the Ladder had been modified between purchase and Mr Bamber's accident, and concluded that the two faults evident in the Ladder were present when it was purchased by Mr Bamber, and the Ladder was therefore defective. He found nothing to indicate that the damage to the Ladder resulted from anything other than Mr Bamber's accident itself. He concluded that "the essence of the problem" appeared to be an inoperative locking, or "latching", mechanism. He expressed the opinion that there was no design problem with the locking device employed with the Ladder, which he considered complied with the Standard.
13. Mr Stark expressed the opinion that, even if careless erection of the Ladder resulted in the locking mechanism not being fully engaged on a rung, such that it slipped off that rung in use, the mechanism would engage the next rung down. He said that, if the Ladder has been correctly erected, not upside down or back to front, and at the appropriate angle, there should be no circumstance possible that would cause the locking mechanism to stay out of engagement, allowing the upper part of the Ladder to fall further than the next lower rung. Mr Stark expressed the opinion that Mr Bamber contributed to the problems by not ensuring that the locking mechanism was fully engaged.
14. The Consultants were asked to provide joint answers to several questions in relation to the Ladder. In response to a question as to how the Ladder is extended, the Consultants explained that, with the unextended Ladder leaning against a wall, the hauling rope loop, which is attached to a stile on the upper section of the ladder, is pulled down. That downwards tension is redirected by means of a pulley attached to the top of the lower section of the Ladder, to pull up the upper section of the Ladder. Assuming no tension at the other end of the hauling rope loop and a freely pivoting locking mechanism, the locking mechanism will pivot outwards on passing each rung of the lower section of the Ladder and then return under gravity to the engaged position after passing the rung. While it is possible to extend the Ladder while lying on the ground, it is difficult to raise it against a wall in the extended state. Thus, it is generally more practical to extend the Ladder after it is placed against a wall.
15. The Consultants also explained the mechanism by which the Ladder is locked into place once extended. During the raising of the upper section of the ladder, the locking mechanism should, after passing each rung, drop automatically under gravity into the engaged position to prevent the upper section falling back down. To lower the upper section of the Ladder, tension is applied to the end of the hauling rope, which is attached to the locking mechanism. That holds the mechanism in the disengaged position, allowing the lowering of the upper section. As viewed from the bottom of the Ladder, a disengaged locking mechanism is not particularly obvious after the upper section has been raised. However, a partly disengaged locking mechanism is readily visible from the side and is obvious to a climber on the Ladder, such that it is necessary to climb over it.
16. The Consultants stated that a user of the Ladder should ensure that the locking mechanism hinges freely without impediment. A locking mechanism properly so operating will typically bang noisily against each of the rungs on the way up as it rides over them, and swings back into the engaged position after passing each rung. Were the locking mechanism to be quiet on the way up, one would investigate the possibility of it being stuck in the disengaged, or partly disengaged, position, or at least not freely swinging back into the correct engaged position.
17. The Consultants also said in the Joint Report that a user of the Ladder, before each use, could take several steps to check the state of repair of the Ladder, including checking that all rotating surfaces are lubricated; that bolts and rivets are all present and secure; that the feet are present and not excessively worn; that ropes are not worn, frayed or rotted; that there are no broken, bent or missing parts; and that rung to stile connections are not loose. They said that any defect in that regard should be repaired competently or the Ladder should be destroyed.
18. The Consultants said in the Joint Report that there were no defects in the design of the Ladder. However, their examination of the Ladder disclosed that the locking mechanism was not operating freely, in that it had a propensity to stay in the disengaged, or partly disengaged, position, rather than freely and automatically falling back into the fully engaged position on passing each rung. They expressed the opinion that that was the result of two manufacturing faults in the Ladder. The first fault was that the hauling rope loop was too short and resulted in sufficient resting tension to the locking mechanism to impede its ability to drop automatically into the fully engaged position under the action of gravity. The second fault was that the four bolts that fixed the two latch hinge brackets to the stiles of the Ladder appeared never to have been fully tightened. They are the faults identified by Mr Stark.
19. The Consultants expressed the opinion that the faulty locking mechanism contributed to the Ladder collapsing under Mr Bamber, by not freely, fully and automatically dropping back into the fully engaged position on passing each rung during raising of the upper section. By not fully returning to the fully engaged position, the locking mechanism was able to rest in the partly engaged position, thereby enabling unexpected, complete disengagement, which resulted in the fall of the upper section of the Ladder with Mr Bamber on it. They expressed the opinion that, as a consequence of those matters, the locking mechanism of the Ladder was defective and was non-compliant with the Standard. They also expressed the opinion that those matters caused or contributed to the Ladder collapsing while Mr Bamber was using it on 8 January 2012.

The Lay Evidence

1. The primary judge had very considerable reservations in relation to Mr Bamber's evidence, which her Honour considered was not only inaccurate in some respects but also exaggerated in other respects. Her Honour found that some aspects of Mr Bamber's evidence were implausible. Her Honour came to the conclusion that Mr Bamber did not give his evidence consistently with the requirements of his oath and was satisfied that, unless corroborated by someone other than Mrs Bamber, Mr Bamber's evidence did not provide a sound basis for conclusions favourable to the cases that either of them advanced.
2. On the day of the accident, Mrs Bamber asked Mr Bamber to attend to a finial on the roof of their home, which had rotted through. In his oral evidence-in-chief, Mr Bamber said that the Ladder had not been used prior to the day of the accident and that, on that day, he got the Ladder from the internal garage at his home and manoeuvred it around to the west gable of the house, where there was a large lawn area. He and Ms Ball, who was lunching with Mr and Mrs Bamber on the day, laid the Ladder on the ground, removed the plastic covering that was present when Mr Bamber bought the Ladder, and proceeded to assemble it to the point where it had engaged at least one, maybe two, rungs. Ms Ball then assisted Mr Bamber to take the Ladder to the front of the house, where Mr Bamber went through the procedure of raising the upper section of the Ladder. He said that he observed that the locking mechanism "seemed brand new" and that there was "a bit of resistance to the Ladder as it was going up but it just seemed new". Mr Bamber said that he then ascended the Ladder, looking up the Ladder as he did so, watching where he was putting his hands. He did not notice anything about the locking mechanism on the way up.
3. Mr Bamber carried a small hand tool with him. When he reached a point where he could safely stand with his body resting against the wall of the house, which he said was probably two, maybe three, rungs from the top of the Ladder, he used the hand tool to remove the finial on the roof with two hits and it flew off into the garden. He then threw the hand tool down into the garden.
4. Mr Bamber said that he then put his hands back on the Ladder and started to descend. He heard Ms Ball shout something and at the same time he felt the Ladder start to disappear from underneath him, as though it was folding in on itself. He was concerned at the possibility of his fingers and hands being trapped in the mechanism as he was going down because the mechanism slides into itself.
5. In cross-examination, Mr Bamber said that he could not recall seeing the locking mechanism of the Ladder when it was lying on the ground. He said that it "went up a couple of rungs and kicked in so". He said he believed that the locking mechanism was properly engaged while the Ladder was on the ground although he agreed that he did not have a very clear recollection. He said that his recollection was that, after he cut the plastic off the Ladder, he looked at how the locking mechanism clicked in before he manoeuvred it.
6. Mr Bamber agreed that he understood absolutely the importance of making sure that the locking mechanism was locked in before he went up the Ladder. He said that "only an outright idiot" would climb a Ladder to the height proposed without checking the locking mechanism first and that he was not an idiot. He asserted that he checked and rechecked that the locking mechanism was safe while he was still at ground level. He said that, when he and Ms Ball took the Ladder to the front of the house, they initially positioned the top just above the lower floor window and did a quick physical check that everything was fine. They then moved the Ladder off the wall to make it easier to pull the rope to raise the Ladder to its full height. After they did that, they repositioned the Ladder back against the wall just above the upper floor window and checked that the Ladder was stable and on stable ground. Mr Bamber said that, at that point, he stamped on the bottom rung of the Ladder and observed that everything was fine with the Ladder from what he could see. Mr Bamber agreed that he looked up towards where the locking mechanism was and "it just looked like a fine ladder to climb. There wasn't anything untoward". Mr Bamber said that he did not notice that the locking mechanism was poking out from the rung.
7. Mr Bamber agreed that, on ascending the Ladder, he went past the level where the locking mechanism was positioned, using his hands and feet, looking up as he went. He said that he was looking fairly closely to where his hands were going and he did not notice that the locking mechanism was poked out at an angle as he past the level where the locking mechanism was. He agreed that he would probably have glanced at the locking mechanism as he passed over it but that he was looking at where his hands were going. When he passed the locking mechanism, he did not notice anything untoward. He said that, if he had noticed anything untoward, he would have come down.
8. Mr Bamber would not agree that he had not looked carefully at the locking mechanism as he went up and past that level. He would not agree that, if he had looked at the locking mechanism carefully, he would have noticed that it was sticking out. Rather, he said, he went up the Ladder and, as he did so, he was always looking where he was positioning his hands.
9. Shortly before the hearing before the primary judge, Ms Ball was subpoenaed to give evidence and before giving evidence, she had discussed with Mr Bamber what had happened on the day that he fell. However, she denied that her recollection of what had happened had been affected by their discussion. Given the conclusions that her Honour reached about Mr Bamber, her Honour considered that Ms Ball's view, while genuinely held, must be approached with some caution.
10. Ms Ball said that she was at Mr and Mrs Bamber's home for lunch on the day in question and that Mrs Bamber wanted Mr Bamber to repair a finial on the roof of the house. Ms Ball said that she went to the garage with Mr Bamber to get the Ladder. They took the plastic off then and there, and then carried the Ladder around to the other side of the house. There they put it on the ground and Ms Ball read the instructions. She said that she wanted to make sure that she knew what they had to do to set the Ladder up correctly. She said that they pulled the Ladder up one or two rungs and it "looked fine". She also said that the rope was intact and she observed a locking mechanism. She said that the locking mechanism was working when the Ladder was on the ground.
11. Ms Ball said that she and Mr Bamber then carried the Ladder around to the front of the house, it being too heavy for one person to carry. She said that they first set up the Ladder just above the height of a lower window at the front of the house. Mr Bamber then used the rope to pull up the upper section of the ladder so that it went beyond the upper window at the front of the house. She said that, when that was completed, the locking mechanism went into place and they made sure that the Ladder was stable on the ground. She said that Mr Bamber proceeded up the Ladder, while she positioned herself at the base of the Ladder.
12. Ms Ball said that Mr Bamber got towards the top of the Ladder but not to the last rung, stopping a couple of rungs from the top so that he could get the finial down. She had no recollection of how Mr Bamber got the finial down but she remembered that he got it down. Ms Ball said that Mr Bamber then proceeded to descend the Ladder and, as he made his first step down one rung, she noticed "the locking mechanism coming up outwards". She said that she yelled at him but that, by that time, the Ladder was falling down itself and Mr Bamber fell. She said that the first thing she noticed was that the locking mechanism "gave way - came forward or up". She agreed that she noticed the locking mechanism "come up" and that the Ladder then just gave way, "coming back down itself, slipping straight down".
13. In cross-examination, Ms Ball agreed that, when the Ladder was on the ground, she looked specifically at the locking mechanism. She said that, when the Ladder was laid flat, she saw that the mechanism "was completely locked in" and that she was certain that it did not "remain out". She agreed that, when Mr Bamber was specifically looking at the locking mechanism, she may have said "it's locked in". She said that, based on what Mr Bamber said to her, she understood that he saw that the mechanism "was locked in" and she was certain that it was not "sticking out" or "extending out". Ms Ball said that, just as Mr Bamber was getting ready to move down the Ladder, she yelled out that she thought the Ladder, or words like "the locking mechanism", had "given way" but that by that stage, Mr Bamber was falling.
14. At some time after Mr Bamber's accident, Mr Michael Roberts, the New South Wales manager of Hartman, examined the Ladder at Mr Bamber's home and made a report of his inspection (the Roberts Report). The Roberts Report said that Mr Roberts observed that the second and third rungs from the bottom of the Ladder were both bent and that the rope attached to the Ladder was tighter than usual. When he raised the Ladder, the locking mechanism was in a half locked position such that, when he lowered the Ladder, it would not lock back in. He was not sure whether that was because it was damaged in the fall or was caused by the rope being tight. The Roberts Report said that further testing would help to determine whether the rope had been damaged in the fall.
15. The Roberts Report said that Mr Bamber told Mr Roberts that he had started to climb down the Ladder and that, while taking his first step, the Ladder gave way. Mr Bamber told him that the Ladder was being supported by Ms Ball and that, as he fell, he landed on the second and third rungs from the bottom before landing on his hip on the ground. The Roberts Report also stated that Ms Ball told Mr Roberts that she was supporting the Ladder and that, as he took his first step down, she saw the locking mechanism give way and the upper part of the Ladder slide down. She said that, as Mr Bamber fell, he landed on the second and third rungs from the bottom.
16. The Roberts Report recorded that Mr Bamber had subsequently telephoned Mr Roberts saying that he had received legal advice and was not willing to give the Ladder to Hartman for testing. Mr Bamber said that he had been advised to have the Ladder independently tested by a structural engineer.
17. Mr Rundle gave evidence as to how Hartman manufactured ladders in its factory in China, where the Ladder was manufactured. He also explained a video of the manufacturing process that was in evidence. Mr Rundle's evidence was effectively unchallenged. The effect of his evidence is as follows.
18. Since 2005, Hartman had sold in Australia some 211,500 ladders in its extension range, of which the Ladder was one. Hartman receives about five complaints a year, after people fall off ladders. While Hartman had received warranty claims for transport damage since 2005, it had received no other complaints of ladder malfunction, including in relation to the latching mechanism. Hartman's protocol for dealing with such complaints involves gaining access to the ladder for inspection and, if the issue is unclear, professional x-ray. However, as indicated above, Mr Bamber refused to permit such testing until the Ladder had been examined by Mr Xeros.
19. Ladders of the Ladder's type are produced in batches of about 300. The ropes used in the manufacture of the ladders are cut to the same length, in bundles of 30 to 50, on a bed using a friction cutter. There was no evidence that any other ladders that Hartman manufactured had been assembled with ropes shorter than the designed length.
20. Hartman's quality assurance program during manufacture involves inspection of all parts of each ladder, including the locking mechanism and its rope and their operation. Checking rope length is a part of the normal quality control process. Thus, even if a rope was cut too short, with the result that the mechanism was tight, that would be identified on assembly and, even if missed then, that would be identified during quality control. The locking mechanism locks with gravity, so the inspection of the ladders includes the range of motion, to make sure that it is free and easy. Once inspected, each ladder has a sticker with a date stamp attached to it. Another sticker, which explains the function of the ladder and warns the user to "make sure all the locking devices are fully functional", is also then applied. A randomly selected ladder from each batch is also subjected to critical strength testing in a laboratory, as well as side sway, and on extension ladders, a permanent set test. The makeup of the aluminium is also analysed.
21. Mr Rundle gave evidence that the bolts on each side of the Ladder are another part of each ladder that is inspected by a member of the quality control team. He explained that the bolts were designed to be done up by hand, using a pneumatic wrench, which is set to a prescribed pressure. That part of the manufacturing process is undertaken by two people at the same time, one on each side of the ladder, using two pneumatic wrenches. Mr Rundle explained that the pneumatic wrenches are set to tighten the bolts to the same tension.
22. Mr Rundle agreed in cross-examination that, if a rope was cut too short, the mechanism could not be locked. He accepted that, if Mr Bamber's evidence as to how he came to fall was accepted, there would have been a defect in the locking mechanism, which could have been a manufacturing issue, or transport damage. He also said that ladders could be damaged in a fall but accepted that, in the case of an unused ladder in Hartman's warehouse, a rope being tighter than normal would be a manufacturing defect. Mr Rundle also accepted that, if the mechanism, when raised, was in a half locked position, such that when lowered it would not lock back in, that would be a defect in the Ladder, provided it was not due to outside forces.

Conclusions of the Primary Judge as to Causation

1. The primary judge observed that the Consultants agreed that the locking mechanism was not freely able to go fully in and could not freely fall into place. They also agreed that, when the Ladder was run up and down, the upper section did not drop properly into place. Her Honour found, however, that the Consultants agreed that the mechanism could be locked although locking required a specific movement on the rope in order to release the tension, which involved deliberate effort. Her Honour considered that that was consistent with the evidence of Mr Bamber that he tested the Ladder before he climbed on it and that the locking mechanism was then "stiff", but functioning.
2. The primary judge appears to have erred in saying that Mr Bamber found the mechanism "stiff". Mr Bamber said of the locking mechanism and its positioning on the stiles that "everything seemed appropriate" and that he thought it "just looked like a fin[e] ladder to climb, there was nothing untoward." His evidentiary statement was to similar effect. Ms Ball, likewise, said nothing in her oral evidence that suggested she encountered any resistance when she checked, twice, the locking mechanism. On the contrary, she too confirmed it was working appropriately, after she took the time to "look specifically" at the locking mechanism. The primary judge cited Ms Ball's evidence as to her observations. Her Honour may have had in mind something said in opening by senior counsel for Mr Bamber, although even that reference did not characterise the locking mechanism as "stiff".
3. The primary judge also observed that the Consultants agreed that, if the mechanism had been fully engaged when the Ladder was extended, it could not possibly have "popped out" when a person was as high up the Ladder as Mr Bamber was when he fell, because of the weight then applying to the locking mechanism. In that situation, the upper section of the Ladder could not move upwards, which was necessary to permit the mechanism to rotate out of the fully engaged position. Her Honour found that that was contrary to the evidence given by Mr Bamber as well as the evidence given by Ms Ball as to what she observed when the Ladder collapsed as Mr Bamber was descending it.
4. The primary judge found that what Ms Ball said she had observed was not physically possible. Her Honour found that, with manipulation of the rope, the Ladder's locking mechanism could be fully locked, despite the shortness of the rope, and that, if the mechanism was fully locked when the Ladder was extended before Mr Bamber climbed it, it was not physically possible for the mechanism "to have popped out" while Mr Bamber was still standing on the Ladder above the locking mechanism.
5. The primary judge did not consider that Ms Ball was an untruthful witness and therefore concluded, in the light of the Joint Report, that Ms Ball was mistaken both as to what she and Mr Bamber did to lock the mechanism before Mr Bamber climbed the extended Ladder, and as to what she saw before Mr Bamber fell. That is to say, the mechanism could not have been locked, as Ms Ball and Mr Bamber said it was, before Mr Bamber climbed the extended Ladder since, if the mechanism was locked, with Mr Bamber's weight above it, it was not physically possible for it to have "popped out" in the way described by Ms Ball.
6. The primary judge concluded that, while conceivable, it was quite unlikely that, in Hartman's manufacturing process, the rope used on only one of a batch of 300 ladders could have been cut shorter than the design length. In the unlikely event that that occurred, with the result that one ladder was then assembled with a rope that was too short, so that the proper functioning of the locking mechanism would be impeded, it was likely that such a defective ladder would be detected and pulled off the line during the inspection process. Her Honour considered that, given the way in which the rope is cut to the same size in batches, the possibility that, in the manufacture of the Ladder and no other, the rope was separately cut to a length that was too short, was improbable, as was the possibility that that defect was not identified, either during assembly, or quality control. That would have involved human error on the part of the person who cut the rope, the person who assembled the locking mechanism and the person who inspected the ladder. Mr Rundle accepted that members of the quality assurance team work six days a week in the factory and that, being human beings, they could be tired and from time to time could miss things. Her Honour concluded that it was conceivable, therefore, although unlikely, that a defective ladder could be missed during inspection. Her Honour concluded that the hauling rope on the Ladder was not shorter than it was designed to be as the result of manufacture.
7. The primary judge considered that, if the bolts on the Ladder were not tightened up on either side during manufacture, that would have involved two different people involved in its assembly, one on each side of the conveyor line, having made the same mistake, at the same time, using two separate pneumatic wrenches, both not having been set to the prescribed pressure. Those who worked in quality control must also have failed to detect those errors. Her Honour observed that there was no evidence that any other ladders were assembled without the bolts being tightened as they were designed to be. Her Honour characterised as exceedingly unlikely the possibility that two people made different, but identical, mistakes during the manufacture of the Ladder. Her Honour concluded that it was quite improbable that those defects were not identified during quality control.
8. In the light of the above, the primary judge concluded that it had not been established, on the balance of probabilities, that the defects in the Ladder identified in the Joint Report occurred during its manufacture. Her Honour concluded that, when all of the above was considered, and in light of the fact that no other complaints of such manufacturing problems had been received by Hartman since 2005 in relation to other ladders that it had manufactured, Mr Bamber had not met the onus that fell upon him to prove the factual basis on which his case depended. Her Honour was therefore not satisfied that Mr Bamber had established that Hartman was liable for the consequences of the collapse of the Ladder.
9. The primary judge nevertheless considered contributory negligence. Had her Honour reached conclusions favourable to Mr Bamber's claims, she would have made a deduction for Mr Bamber's contributory negligence. Her Honour observed that Mr Bamber said that the locking mechanism was tight when he tested it while the Ladder was on the ground. Her Honour referred to the evidence of the Consultants that, although it required effort, the rope could be manipulated, such that the mechanism could engage. Her Honour found that Mr Bamber must have managed that effort if his evidence, and that of Ms Ball, was to be accepted that they checked the operation of the locking mechanism while the Ladder was on the ground. They both said that the mechanism locked at that stage. Her Honour found that the Ladder could only have collapsed because the same effort was not applied when the Ladder was extended. Her Honour considered that the result would have to be a deduction for contributory negligence, which her Honour assessed in the order of 30%.

Conclusions of the Primary Judge as to Damages

1. Although not strictly necessary, the primary judge made findings in relation to the quantum of the claims made by Mr Bamber. There was no dispute that Mr Bamber's ankle injury was serious, requiring repeated surgical treatment and impacting his ability to engage in activities that he had previously enjoyed. However, there was a question before her Honour as to what work Mr Bamber actually performed both before and after the fall and what he was then capable of performing. Hartman disputed that the consequences of Mr Bamber's fall were such as to preclude him from either performing the work of the kind he was previously performing at the Gym Business immediately before the fall or managerial work of the kind that he had performed in the past and to which he eventually returned. Hartman also disputed that Mr Bamber was not able to resume driving after his fall and that the consequences of the fall had an impact on the decision made by Mr and Mrs Bamber to sell the Gym Business. Her Honour did not reach conclusions favourable to Mr Bamber on any of those matters.
2. The primary judge concluded that, in so far as Mr Bamber's evidence departed from what was recorded in the medical records described by her Honour, it could not be accepted. Her Honour considered that those records provided much more reliable evidence as to the true state of Mr Bamber's recovery at particular times, than did Mr Bamber's evidence.
3. The primary judge concluded that, had Mr Bamber succeeded, his non-economic loss would have been assessed at 30% of a worst case, given his age of 58 years, the evidence of the serious injury to his ankle, the subsequent surgeries that he required and the ongoing consequences of the injury that her Honour accepted existed, albeit significantly less serious than Mr Bamber claimed. Her Honour did not accept Mr Bamber's evidence that he could not drive at various times and cannot do so now. Her Honour did not accept Mr Bamber's evidence as to the impact of his ankle injury on his ability to perform work at the Gym Business, other than as to demonstrating exercises to clients, or that the physical consequences of his fall had an adverse impact on the financial performance of the Gym Business or influenced the decision made by Mr and Mrs Bamber to sell the Gym Business. While her Honour was satisfied that Mr Bamber had been left with the consequences of injuries that affected his former active lifestyle, her Honour was not satisfied that they were as severe as he claimed or that they ever precluded him from performing managerial work, other than for short periods of time immediately after surgery.
4. The primary judge recorded that Mr Bamber's past economic loss was quantified at $100,750 and his future economic loss to age 70 at $304,677, based on an assumption that his economic capacity to earn should be assessed at approximately $90,000 per annum. However, her Honour was not satisfied that the evidence provided a proper basis for concluding that, but for the injury to his ankle, Mr Bamber would have earned $90,000 per annum, given that the financial records established that neither of the businesses conducted by Mr and Mrs Bamber was ever profitable. Further, her Honour considered that what Mr Bamber had in fact earned from time to time would have to be taken into account in the calculation of any damages for past economic loss.
5. Hartman accepted that, from 8 January 2012 to 24 February 2012, Mr Bamber was significantly restricted in his ability to work but he was not earning any income from the Gym Business. Her Honour concluded that there was no basis for concluding that that position would have altered whilst Mr Bamber worked in the Gym Business, which was eventually closed in January 2013. Her Honour referred to the absence of evidence that Mr Bamber earned any income while working in the Gym Business. Her Honour rejected the submission that, but for his fall, Mr Bamber had a reasonable expectation of obtaining substantial income from the Gym Business. Her Honour referred to evidence that, in the three months during which Mr Bamber worked in Wagga in 2013, he earned the sum of $32,944.50, which meant that he was better off than when he worked in the Gym Business.
6. The primary judge referred to positions held by Mr Bamber after his injury and concluded that, given what he earned in those positions, he was better off than while he was working in the Gym Business. Her Honour considered that what he earned in those positions would have to be taken into account in the calculation of his damages. Her Honour was not satisfied that any basis for an order for past economic loss had been established. Her Honour was not satisfied that Mr Bamber had established any diminution in his earning capacity. Her Honour considered that the evidence established not only that Mr Bamber was fit for managerial work soon after the fall, when he chose to pursue it, but that he obtained such employment and that, even at the time of the trial, he was pursuing such employment in the United Kingdom. Her Honour considered that, in light of Mr Bamber's education and prior experience, any ongoing consequences of his ankle injury did not preclude him from obtaining or performing managerial work, even though he no longer had the capacity that he had before the injury to undertake the work involved in taking gym classes.

The Appeal

1. In his Amended Notice of Appeal, Mr Bamber asserts that the primary judge erred in finding:

• that there was not sufficient evidence to satisfy the Court that defects found in the Ladder occurred during manufacture and, in doing so, failed to refer to all significant relevant evidence and made findings that were glaringly improbable in the face of incontrovertible evidence and contrary to compelling inferences;
• that the Ladder was not defective at the time of manufacture and at the time of supply, in circumstances where the Consultants agreed that the faults identified were manufacturing defects; and
• that Mr Bamber was contributorily negligent, by making a finding of 30% contributory negligence and by failing to consider all relevant evidence and give adequate reasons for such finding.

1. Mr Bamber's Amended Notice of Appeal also asserts that, in the primary judge's findings in relation to the quantification of his claim, her Honour erred:

• in her findings for non-economic loss, by failing to consider all relevant evidence, failing to provide adequate reasons for such finding and awarding damages that were manifestly inadequate;
• in not awarding damages for past and future economic loss, by failing to take into account all significant relevant evidence, failing to give adequate reasons and in finding that Mr Bamber's evidence in relation to the conduct of the Gym Business was inaccurate or incorrect or exaggerated;
• in respect of the award for future medical expenses, by failing to take into account all significant relevant evidence and failing to give adequate reasons; and
• in failing to award damages for domestic assistance, by failing to take into account all significant relevant evidence and failing to give adequate reasons.

1. Mr Bamber's Amended Notice of Appeal also asserts that the primary judge erred in rejecting Mr Bamber's evidence on the basis of credibility unless otherwise corroborated. It asserts that her Honour failed to refer to or identify the evidence that provided corroboration and the evidence that did not provide corroboration, failed to give adequate reasons for such findings and failed to consider all significant relevant evidence. Since Mr Bamber contends that there should be a new trial, it is preferable to deal first with the ground concerning credit findings.

Credit Ground

1. In his written submissions, Mr Bamber contended that the primary judge was required to engage with the entirety of the evidence and the case presented by him in circumstances where there was a finding that he was not a witness of truth [2] . He complained that her Honour failed to engage in a detailed review of his injury and its consequences. However, having regard to her Honour's credit-based findings, the relevance of much of the medical evidence relied upon by Mr Bamber was diminished because the medical opinion evidence was based on an acceptance of Mr Bamber's account of his history and complaints.
2. The primary judge found that Mr Bamber suffered severe bruising to the right side of his body and underwent surgery to his right foot and ankle on the day after the accident. Her Honour said that, five to six weeks later, he was diagnosed as having a fracture of the right femur and had surgery later in 2012 and again in 2013. Mr Bamber complains that that observation was not accurate because he had surgery in 2014. However, while that may be so, her Honour made a specific finding that Mr Bamber had further surgery to his ankle in April 2014, from which he agreed that he obtained benefit, his ankle becoming improved, feeling more secure, with reduced pain and improved mobility. Accordingly, the reference to ankle surgery in 2013 must be understood as no more than a typographical error. Clearly, her Honour did not overlook the surgery in April 2014. The assertion made in Mr Bamber's original submissions that the only reference to the procedures in 2014 by her Honour was when she referred to his evidentiary statement is unsupportable.
3. In his written submissions, Mr Bamber also asserted that a proper view of the medical evidence made it clear that he had continuing significant problems with his ankle after February 2012, leading to two further operations. He asserted that the primary judge failed to refer to any of that medical evidence when assessing his credit. Her Honour considered that it was apparent from the records of accounts that Mr Bamber had given in the past to those who treated him as to the improvement that he obtained from treatment, which he denied in his evidence.
4. While the primary judge may not have referred to each and every piece of medical evidence, her Honour engaged with the medical evidence and exposed her process of reasoning in making the following explicit findings:

• Mr Bamber's evidence was not only inaccurate in some respects but also exaggerated in others;
• Mr Bamber disagreed with the record of histories he had given of his symptoms and recovery after surgery, as evidenced by various medical reports;
• Aspects of Mr Bamber's evidence were implausible, particularly his evidence as to the physical consequences of his ankle injury, which he claimed were considerably more severe than contemporaneous records suggest;
• There was no issue that Mr Bamber's ankle injury was serious, requiring repeated surgical treatment and impacting his ability to engage in activities that he had previously enjoyed;
• Notwithstanding the assertion in Mr Bamber's written submissions that her Honour failed to refer to medical evidence of Dr Hatfield when assessing Mr Bamber's credit, her Honour clearly engaged with Dr Hatfield's clinical notes before finding expressly that, where Mr Bamber's evidence departed from what is recorded in the medical records, it could not be accepted, since the records provided much more reliable evidence as to the true status of Mr Bamber's recovery at particular times than did Mr Bamber's evidence; and
• While there was evidence of serious injury to Mr Bamber's ankle, requiring subsequent surgery, the ongoing consequences of that injury were significantly less serious than he claimed.

1. In his written submissions, Mr Bamber identified several medical reports and occupational therapy reports that he asserts were not referred to by the primary judge in her reasons. Mr Bamber also complained that the primary judge erred by making adverse credit findings based on his evidence as to domestic assistance, his inability to work for a period of 12 weeks after the accident and the discrepancy between his oral evidence and his evidentiary statement concerning the name of the business in which he was engaged. However, Mr Bamber ultimately accepted that there were large periods of time during 2013 where Mrs Bamber, for whose assistance he claimed, did not provide internal domestic assistance because she was overseas. Her Honour found that that reflected adversely on Mr Bamber's credit. That is not surprising.
2. The primary judge did not accept that the inconsistency between Mr Bamber's oral evidence and his evidentiary statement was simply a mistake, or that there were errors in the evidentiary statement as the result of "representative errors", as he asserted. Mr Bamber conceded that this evidence was incorrect and contradicted by the evidence of Ms Ball. His evidence was proved in part to be inconsistent with that given by both Mrs Bamber and Ms Ball. Such a finding was clearly open to her Honour, who was entitled to give weight to that inconsistency in assessing Mr Bamber's credit.
3. Mr Bamber also complained about the failure of the primary judge to refer to a forensic accountant's report relating to the financial position of the businesses in which Mr Bamber and Mrs Bamber were engaged. Mr Bamber did not take this Court to specific provisions of the report to which it is suggested her Honour should have had regard. In any event, her Honour had regard to the financial position of the businesses and the matters referred to in the report did little to advance Mr Bamber's case. In the course of cross-examination, Mr Bamber made various concessions in relation to the financial records when his evidence was shown to be inconsistent with the records, which showed that the businesses in question had been unprofitable. Tax returns, which may have shed further light on Mr Bamber's evidence, were not produced, despite calls for them.
4. Mr Bamber's evidence was that, for a considerable time, the injury to his ankle prevented him from pursuing management work of a kind that he had successfully performed before he became involved in the Gym Business. When that evidence was considered in the light of Mr Bamber's other evidence as to precisely what that work involved and the histories that he gave to medical practitioners at various times as to the state of his recovery, his evidence was exposed as being considerably exaggerated.
5. The primary judge did not accept that Mr Bamber was unable to perform managerial tasks in a health and fitness centre in a general manager's job in February 2012. Mr Bamber gave evidence to the effect that the decision to sell the Gym Business had been made because he could not perform physical work of the type that he had been performing. Her Honour did not accept his evidence that, by January 2013, he could not have undertaken managerial work. Her Honour did not accept his evidence that he could not apply for many available jobs in the management of health centres because he could not carry out the inherent duties required.

Causation Grounds

1. Mr Bamber's first two grounds of appeal impugn the findings that the alleged defects in manufacture of the Ladder were not made out. Hartman contends that, contrary to the suggestion tentatively expressed in Mr Bamber's submissions, the primary judge did not accept that the two faults identified by the Consultants were present at the time of the accident, or that they were "causative of injury". It asserts that the reasoning process by which her Honour ultimately determined that she could not be satisfied that the defects identified by the Consultants occurred during manufacture was informed by the fact that, on Mr Bamber's own account of his actions before his fall, corroborated by Ms Ball, the Ladder could not have been defective as alleged.
2. Thus, two questions appear to be raised. One question is whether the Ladder had a safety defect when Hartman supplied the Ladder to the retailer from whom Mr Bamber purchased it. The primary judge clearly concluded that Mr Bamber had not established that it was more likely than not that the Ladder suffered from the two defects described above, namely, a hauling rope that was too tight and loose bolts holding on the locking mechanism. The other question is whether Mr Bamber suffered his injuries because of any defect that was present when the Ladder was supplied by Hartman. That question is tied in with the question of contributory negligence. Her Honour's finding in relation to causation is not entirely clear. It is convenient to deal first with the questions as to the cause of the collapse of the Ladder.

Mechanism of the Collapse

1. The primary judge referred to the evidence of Mr Bamber and Ms Ball that, before Mr Bamber ascended the Ladder, they laid and extended the Ladder on the ground, checked that the locking mechanism was operational before placing it at an angle against the wall of the house and extending it to the required height, and checked the locking mechanism again with the extended Ladder leaning against the wall. Next, her Honour recorded that the Consultants agreed that, if the two faults they identified had been present at the time of supply to Mr Bamber, "the locking mechanism would have been resistant to going fully in." Given their agreed position described above, the evidence of Mr Bamber and Ms Ball pointed only to the conclusion that, whatever its state when inspected years later by the Consultants, the Ladder could not have suffered from the defects at the time of the accident.
2. Hartman contends that it follows that, on the agreed position of the Consultants, and taking into account the evidence of Mr Bamber and Ms Ball, to the effect that the locking mechanism was working appropriately, the only conclusion open to her Honour was that the Ladder could not have been in a defective state at the time as alleged. It says that her Honour's conclusion is fortified by two incongruities between the Consultants' opinion evidence, on the one hand, and the evidence of Mr Bamber and Ms Ball, on the other. First, the Consultants agreed that, if the mechanism was fully engaged as Mr Bamber and Ms Ball asserted, it could not possibly have popped out when a person was higher up the ladder, as Mr Bamber was when he fell. Secondly, Ms Ball's evidence, to the effect that she noticed that as Mr Bamber started to descend, the locking mechanism came "up outwards" and "came forward or up", was, on the opinion evidence as to the manner in which the locking mechanism engaged and moved, "not physically possible" as a person descended the ladder from a position above the locking mechanism, as did Mr Bamber. Hartman says that, in circumstances where her Honour was confronted with lay accounts, from witnesses of dubious credit, which the opinion evidence exposed as defying the laws of physics, it is little wonder she rejected those accounts. That is to say, the locking mechanism was not fully in place.
3. It is clear enough that, if the locking mechanism was effectively in place, the upper part of the Ladder could not have fallen in the way that it did when Mr Bamber suffered his injury. The primary judge found that, if the mechanism was fully locked when the Ladder was extended, before Mr Bamber climbed it, it was not possible for the mechanism "to have popped out" as Mr Bamber descended while still on the Ladder above the locking mechanism. Thus, her Honour found that Ms Ball must have been mistaken when she said that the mechanism was fully locked before Mr Bamber began to climb the Ladder. If it was locked, with Mr Bamber's weight above the mechanism, it was not physically possible for it to have "popped out" as Ms Ball described.
4. It follows that there can be little doubt as to the actual mechanism of the fall. Thus, the locking mechanism had not engaged completely but must have been only partly engaged when Mr Bamber began to ascend the Ladder. The question, therefore, is why the mechanism did not engage fully. That question raises the extent to which Mr Bamber's own actions, as well as any safety defects present when the Ladder was supplied by Hartman to the retailer, contributed to his fall.

Source of the Defects

1. Hartman contends that the unchallenged evidence of Mr Rundle leads to the conclusion that, when the Ladder was removed from its plastic wrapping, the two defects later identified by the Consultants were not present. The import of Mr Rundle's evidence was: 1. Hartman manufactured the Ladder; 2. The locking mechanism was mandated by the Standard to be, and was, a "gravity engagement"; 3. The Ladder's design was such that, in the event of the locking mechanism not engaging because of operator error, the upper half of the Ladder can only descend some 300mm to the next rung, at which point it will, absent the operator intervening, engage on that rung; 4. Ropes were cut to length in batches "multiple strands at one time … 30, 40 , 50 in a bundle", so that if one were cut short, the entire bundle would suffer that flaw; 5. The locking device was held in position by four bolts, the nuts for which were pneumatically tensioned to a prescribed limit, using machines set to a certain torque, by two production workers, one either side of the ladder, so that for a ladder to leave the factory with unsecured bolts on both sides would require those flaws to have escaped the attention of the two workers and the post-production quality control personnel; 6. The manufacturing process included a quality assurance regime that sees "a hundred percent" of ladders subjected to checking of, relevantly, the rope and latching mechanism and the ladder screws, ladders with any misbehaving componentry, or a too short rope, "pulled off the line", and functional ladders affixed with a stamp demonstrating they have passed the quality assurance inspection; 7. The locking mechanism on the Ladder was the same as that deployed on every ladder in Hartman's range, and had been since 2005; and 8. More than 211,500 ladders configured with the locking mechanism in issue had been sold by Hartman since 2005, about which no complaint about the locking mechanism had been received.
2. Hartman suggests that the primary judge correctly drew from Mr Rundle's unchallenged evidence the following propositions:

• The quality assurance regime rendered it "quite unlikely that the rope used on only one of a batch of 300 ladders could have been cut shorter than the design length";
• The improbable event that a ladder was manufactured with a short rope would involve "human error on the part of the person who cut the rope, the person who assembled the locking mechanism and the person who inspected the ladder, it not being suggested that there had been any deliberate sabotage";
• In such an unlikely event, it is likely a defective ladder would be detected and pulled off the production line;
• A ladder leaving the factory with untightened bolts would require the two operators on either side of the ladder tasked with tightening the bolts, and the subsequent quality control inspectors, to have missed the defect; and
• There is no evidence that any other ladders suffered from that defect.

1. The question is whether the defects that were observed by the Consultants many months after Mr Bamber's accident were present at the time of the accident. It is ultimately for Mr Bamber to establish whether it is more likely than not that the defects were in the Ladder at the time when he bought it. It is not incumbent upon Hartman to demonstrate that they were not. However, the Consultants' evidence was that they saw nothing to suggest that the defects were not present at that time. That, of course, is not conclusive. Further, there has been no evidence as to anything that might have happened to the Ladder after Mr Bamber's accident and before it was inspected by the Consultants. Hartman proffered no evidence as to the possible cause of the defects if they were not present when the Ladder was supplied by Hartman to the retailer from whom Mr Bamber bought the Ladder several months before his accident.
2. In the circumstances, a judgment must be made as to which of two inferences should be drawn. From the evidence of the Consultants, one might conclude that the defects were present when Mr Bamber purchased the Ladder. From the evidence as to the practices of Hartman in its Chinese manufacturing plant, one might conclude that the defects were not present when the Ladder was supplied to the retailer. That evidence is compelling for the reasons explained by the primary judge. That is to say, the lengths of rope are cut in lots of 30 to 50 and the mechanism of cutting is such that it is unlikely that one length would be shorter than all the others and there has been no complaint of any other incident of a short rope loop.
3. Hartman asserts that the primary judge was not required to make a finding as to an alternative case as to how the Ladder came to have those defects when inspected later, or to make express findings exculpatory of Hartman. A trial judge is not bound always to make a finding one way or the other. Rather, in appropriate cases the judge can, and should, decide on the basis that the party bearing the burden of proof has failed to discharge it. A particular finding requires satisfaction on the evidence that the matter found to have occurred is more likely than not to have occurred, and that requirement is not met where a judge bases a finding on the less improbable of two extremely improbable possibilities. [3] Hartman contends that her Honour was plainly alive to that principle. The trier of fact in a civil case is not required to make, and commits no error in refraining from making, positive findings as to how an accident occurred. The task of the primary judge was to determine whether, on the balance of probabilities, the accident occurred in the manner alleged, such that, in the language of s 138(1)(c) of the Australian Consumer Law, Mr Bamber was an individual who suffered injuries "because of the safety defect".
4. It is quite apparent that, if the rope loop was too tight when the Ladder was supplied by Hartman, it had the potential to prevent the mechanism from locking fully, by the operation of gravity, as it was designed to do. It is also clear enough that, when the Ladder was examined by the Consultants, the rope loop was tighter than it was designed to be, such that it had the tendency and capacity to prevent the mechanism from fully locking.

Quantum Grounds

1. The original written submissions filed on behalf of Mr Bamber in support of his appeal did not adequately address the issues concerning the assessment of damages. In particular, Mr Bamber did not comply with Uniform Civil Procedure Rules 2005 (NSW), rr 51.36(2) and 51.36(3), which relevantly provide that submissions raising any challenges to findings of fact must include a statement in narrative form setting out the findings challenged and the findings contended for, together with supporting references. In addition, where damages for bodily injury are in issue, the appellant's submissions must state the manner in which the damages were assessed, the heads of damage that are in issue in the appeal, the basis of the challenge and the alternative assessment contended for. In the light of the inadequacies in the appellant's submissions, directions were given for Mr Bamber to file supplementary submissions, for Hartman to file supplementary submissions in response and for Mr Bamber to file supplementary submissions in reply. The Court indicated that it would deal with the supplementary submissions on the papers without any further oral argument.
2. Mr Bamber contends that the primary judge's failure to deal with all of the evidence denied him both the fact and the appearance of justice having been done. As indicated above, his primary contention is that the matter should be remitted to the Common Law Division for a new trial. No basis has been established for the adoption of that course. Accordingly, it is necessary to consider the further grounds raised by Mr Bamber concerning the assessment of damages. In that regard, as indicated above, Mr Bamber accepts that, in the light of the findings on credit and credibility made by her Honour, it is only to the extent that Mr Bamber's claims are corroborated by someone other than Mrs Bamber that the conclusions reached by her Honour are challenged.

Non-Economic Loss

1. Mr Bamber challenges the finding by the primary judge that he exaggerated his complaints and her Honour's failure to accept alleged restriction of his ability to drive. He asserts that her Honour erred in:

• failing to consider all of the medical evidence, including a report as to the progressive degeneration of his foot and need to undergo further surgery;
• failing to consider Ms Ball's evidence in relation to the provision of domestic assistance for 12 months;
• rejecting evidence specifically addressing his ability to drive; and
• relying on clinical notes in discounting the entirety of his medical evidence. He says that, had the primary judge considered the whole of the evidence and not restricted her consideration to three specific clinical notes, significantly greater damages would have been awarded such that the appropriate award would be 45% of the worst case.

1. Having regard to the credit-based findings of the primary judge, the relevance of much of the medical opinions relied on by Mr Bamber was diminished because the medical opinions were based on acceptance of Mr Bamber's account of his injury and complaints [4] . Her Honour engaged with the medical evidence and exposed her process of reasoning. Mr Bamber's complaints must be rejected in the light of the credit findings made by her Honour. It was clearly open to her Honour to reject Mr Bamber's assertion as to his difficulty with driving in circumstances where she had already made a number of adverse credit findings about him. All of his work activities since January 2014 involved driving.
2. Furthermore, the primary judge set out in some detail the basis upon which she concluded that 30% of a worst case for non-economic loss was appropriate, rather than 45% claimed by Mr Bamber. In arriving at a figure of 30%, her Honour expressly found that Mr Bamber suffered a serious injury to his ankle and was suffering from ongoing consequences. However, her Honour did not accept that the consequences were as serious as Mr Bamber claimed. That was not an erroneous conclusion.
3. Hartman points out in its supplementary submissions that the parties incorrectly proceeded at the trial on the basis that damages should be assessed under the Civil Liability Act 2002 (NSW) (Civil Liability Act). Mr Bamber now accepts that non-economic loss damages should be assessed under the Australian Consumer Law and that the trial proceeded on the basis that damages under the Civil Liability Act would apply. That may have a bearing on the question of costs.
4. If Hartman is found to be liable solely on the basis of s 138 of the Australian Consumer Law, damages ought to be assessed under the Australian Consumer Law. Section 87E(1) of the Consumer Act expressly provides that Part VIB of the Consumer Act applies to personal injury proceedings taken under s 138 of the Australian Consumer Law. Under s 87L, a court must not, in a proceeding to which Part VIB applies, award, as personal injury damages for non-economic loss, an amount that exceeds the amount (if any) permitted by Division 3 of Part VIB. Under s 87R of the Consumer Act, 30% of the most extreme case equates to $79,180.

Economic Loss

1. The primary judge's assessment of economic loss was heavily influenced by her Honour's adverse credit findings, which significantly diminished the relevance of the medical opinion evidence relied on by Mr Bamber. As indicated above, her Honour made no error in the assessment of Mr Bamber's credit.
2. Mr Bamber asserts that he was unemployed but actively seeking work from 1 February 2015 to 29 March 2016. He obtained employment in the United Kingdom but subsequently ceased that work on 27 October 2016 because of difficulties with driving. He later commenced other work on 3 January 2017 in the United Kingdom. His claim for past economic loss is limited to the period from his return to England, from 1 February 2015 to 29 March 2016 and from 3 January 2017 and continuing.
3. The primary judge made a number of factual findings that were open on the evidence before her as follows:

• while Mr Bamber has been left with the consequences of injuries that have affected his former active lifestyle, those injuries are not as severe as he claimed and have not ever precluded him from performing managerial work, other than for short periods of time immediately after surgery;
• the financial records established that neither of the businesses in which Mr Bamber and Mrs Bamber were engaged were ever profitable; and
• while Mr Bamber was significantly restricted in his ability to work from 8 January 2012 to 24 February 2012, he was not then earning any income from the Gym Business and there was no basis in the evidence that that position would have altered while he worked in the Gym Business, which eventually closed in January 2013.

1. In the light of those findings, the primary judge concluded that there was no basis for any award for past economic loss. In so doing, her Honour relied not only on the adverse credit findings but on the financial position of the two businesses, which were not earning any income, together with the fact that Mr Bamber managed to obtain employment in a managerial position after his accident earning as much as $95,000 per year in August 2014. Her Honour considered that he was capable of undertaking such work had he chosen to do so. That did not involve any error.
2. The primary judge dismissed Mr Bamber's claim on the basis that any diminution in earning capacity was not productive of economic loss because he was fit for managerial work soon after his fall. Mr Bamber complains that her Honour erred in circumstances where she recognised that he does not have the capacity to undertake work involving gym lessons. Rather, he says, her Honour was bound to award something for future economic loss if he demonstrated a loss of earning capacity, unless it could be confidently said that he will not in fact suffer any future economic loss because of lack of capacity. Mr Bamber contends that the primary judge's finding of 30% of worst case is inconsistent with her conclusion that there was no loss of earning capacity [5] .
3. Mr Bamber also complains that the primary judge made no allowance for prospects of deterioration in his condition and the possibility of early retirement and failed to take into account the wide range of management positions that he would not be able to undertake, as demonstrated by his numerous job applications. Mr Bamber was 60 years of age. He contends that it was appropriate to allow for 10 years. He contends that an allowance should also be made for future loss of superannuation on the basis that he may return to Australia.
4. However, Mr Bamber does not point to any specific error on the part of the primary judge in her application of relevant authorities. Further, there is no general principle that mandates that an award should be made for loss of earning capacity simply because an injured person is entitled to an award for non-economic loss.

Future Medical Expenses

1. Mr Bamber complains that he is unsure as to what the primary judge allowed. Her Honour appears to have allowed the entirety of his claim of $38,705 but then separately considered that the cost of future surgical treatment would be allowed in the sum of $9,270. He asserts that, in that award, her Honour failed to give any proper reasons for the basis of the award. He contends that, in so far as her Honour simply relied on Hartman's submissions, she erred and was required to undertake her own reasoning process and not simply adopt the unextracted reasoning of one of the parties.
2. Hartman responds that there was agreement at the trial in relation to past out-of-pocket expenses but no such agreement in relation to future out-of-pocket expenses. Mr Bamber made oral submissions on future out-of-pocket expenses and also made written submissions in relation future out-of-pocket expenses. Hartman made oral submissions as to a very modest allowance for future out-of-pocket expenses and made similar written submissions. Hartman conceded in its written submissions that the appropriate allowance for the cost of future surgical treatment was $6,770 (being $10,000 deferred for eight years) plus $2,500 for occasional medication. It is clear enough that her Honour's reference to $38,705 was a poorly expressed acknowledgement that that was the sum claimed by Mr Bamber. That is evidenced by the fact that her Honour in fact only allowed the sum of $9,270 on the basis that that was the sum conceded by Hartman. It is apparent that her Honour accepted Hartman's submission that Mr Bamber had not established a reasonable need for any other treatment. No error has been demonstrated in the amount assessed for future out-of-pocket expenses.

Domestic Assistance

1. Mr Bamber complains that the primary judge did not allow a claim for periods when Mrs Bamber was not living with him. Whilst Mrs Bamber was away, friends and neighbours provided assistance for four hours per week and the claim therefore did not meet the threshold. Mr Bamber complains that her Honour's finding that he was no longer in need of care after the removal of a cast wrongly equated personal care with general domestic assistance.
2. Mr Bamber complains that the primary judge failed to consider reports by Ms Ravagnani and Ms Garside. While her Honour did not refer to those reports, any opinions expressed in them depended upon the reliability of accounts given by Mr Bamber and Mrs Bamber. Those opinions were therefore necessarily diminished in the weight that should be afforded to them in the light of her Honour's adverse credit findings about Mr Bamber and Mrs Bamber. Her Honour found that any assistance needed by Mr Bamber had persisted in the past only for a relatively short period after his surgeries. That finding underlay her Honour's assessment of any need for domestic assistance.

Overall assessment

1. On the basis of the conclusions outlined above, the primary judge did not err in her assessment of the quantum of damages to which Mr Bamber would have been entitled had her Honour found in his favour on the question of liability to the extent indicated above. On that basis, the damages would be as follows: Non-economic loss assessed as 30% under the Australian Consumer Law $79,180.00 Past and future economic loss Nil Past out-of-pocket and treatment expenses $16,594.95 Future out-of-pocket and treatment expenses $9,270.00 Past and future domestic assistance Nil Total $105,044.95

On the basis of the conclusion as to Mr Bamber's responsibility for the accident, that sum would be reduced by 30% to $73,531.47.

Costs

1. Mr Bamber accepts that, if the ultimate verdict is $500,000 or less, there would be no order as to the costs of the trial unless the Court was satisfied that the commencement and continuation of the proceedings in the Supreme Court, rather than the District Court, was warranted. He contends that the proceedings were complex in the assessment of the approach to damages. Although no leave was sought by Mr Bamber to rely on further evidence in relation to the assessment of costs, Mr Bamber placed reliance on an affidavit of Mr Campbell Jeremy sworn 22 August 2018. Mr Jeremy was the solicitor who had carriage of the proceedings on behalf of Mr Bamber. He outlined in his affidavit the steps taken for the purpose of assessment of damages.
2. Hartman contends that there should be no order as to the costs of the trial because, despite what is asserted by Mr Jeremy, the proceedings were within a reasonably narrow compass. The liability question was largely factual and was not complicated. Further, there was no significant or complex medical issue raised by the ankle injury sustained by Mr Bamber. There were no complexities in relation to causation or damage. The fact that Mr Bamber was self-employed does not constitute a matter of any great complexity. Such a matter is likely to be commonplace and routinely dealt with in proceedings in the District Court.
3. Ultimately, it was in large part Mr Bamber's lack of credit together with the fact that he subsequently engaged in remunerative, managerial employment both in Australia and the United Kingdom that resulted in the modest assessment of damages. Such factors must have been apparent to Mr Bamber at all times and must be taken to have indicated that the damages would not be substantial if Mr Bamber succeeded on liability. On the material before the Court, it appears that there was no real prospect of Mr Bamber obtaining damages in excess of $500,000 and the proceedings ought to have been commenced in the District Court.
4. Mr Bamber has been partially successful in his appeal, in so far as this Court has concluded that the primary judge erred in directing a verdict for Hartman. However, Mr Bamber has been unsuccessful in relation to the question of the extent of his responsibility for his injury and on the question of assessment of damages. In the circumstances, therefore, the appropriate order is that Hartman pay 50% of Mr Bamber's costs of the appeal.

Conclusion

1. It follows that the appeal should be allowed and the orders made by the primary judge should be set aside. In lieu of the orders made by the primary judge, there should be a verdict for Mr Bamber against Hartman in the sum of $73,531.47. There should be no order as to the costs of the proceedings before the primary judge. Hartman should be ordered to pay 50% of Mr Bamber's costs of the appeal. ********** h

Endnotes

1. Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law.
2. See Whalan v Kogarah Municipal Council (2007) 71 NSWLR 150; [2007] NSWCA 5 at [41].
3. See J D Heydon, Cross on Evidence (8th ed, 2010, LexisNexis Butterworths) at [9015].
4. See Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 at [60], [105].
5. See Joukhador v Donnelly [1999] NSWCA 468 at [32]-[36]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2018