Bye v Hend

1. On 18 February 2020 Ms Jennifer Bye, the plaintiff, leased a house at Dunlop, ACT, from Mr Steven Hend, the first defendant. The second defendant, LJ Hooker, had been retained by Mr Hend as the managing agent of the house.

2. Ms Bye says that, on 25 June 2020, she sustained an electric shock when she turned on a light switch in the property. She claims damages from the defendants.

3. The defendants do not admit liability or that Ms Bye was injured on that day and, in the alternative, say that Ms Bye herself was negligent.

Evidence

4. Ms Bye and her friend Ms Carolyn Marshall gave evidence and were cross examined.

5. Ms Julie Neal, the property manager of LJ Hooker, gave evidence and was cross examined.

6. Drs Todman and Fitzsimons prepared reports and were cross-examined.

7. There was also voluminous documentary evidence tendered by the parties.

The reliability of the evidence of Ms Bye

Summary

8. By way of summary, Ms Bye says that, when she arrived at the house on 18 February 2020, she noticed that there were a lot of defects. She had received a Condition and Inventory Report (the Report) prepared by Ms Neal. It consisted of notes made and photographs taken by Ms Neal as to the condition of each area of the property at the commencement of the tenancy.

9. Over the weekend Ms Bye inspected the house and made notes on the Report. There was no place in the Report for light switches or power points. She went to the office of LJ Hooker on 21 February 2020 to return the annotated Report. What occurred at the LJ Hooker office on that day is in dispute.

10. Ms Bye says that she noticed a damaged power point in the laundry before she returned the annotated Report. It is not mentioned in her annotations to the Report. There were many emails between Ms Bye and Ms Neal from 20 February 2020 to the date on which Ms Bye says she sustained an electric shock, 25 June 2020. It is conceded that light switches and power points were not mentioned by Ms Bye in any of those emails. Ms Bye says it was not mentioned in the Report or emails because she was intending to raise the issue when Ms Neal called her in response to a message she had left at the office on 21 February 2020 or at one of the two or three inspections of the house by Ms Neal and Mr Hend which were arranged but did not occur. This is also in dispute.

11. Ms Bye also says that on several occasions she raised the issue of broken power points and light switches with Ms Neal. This is denied by Ms Neal who says the issue was never raised with her before 28 June 2020.

12. Ms Neal denies that there was any defect to any light switch or power point when she took the photographs attached to the Report on 11 February 2020.

13. In relation to the incident which Ms Bye says occurred on 25 June 2020, she said she came home after finishing work and went into a bedroom. She came out to go into the linen cupboard and pressed a light switch. She believes that her finger went through the switch, which was already loose, and touched the wires. She identified the location of the switch on a diagram in evidence. She was knocked unconscious for, she estimates by the difference in the level of light outside at the time she fell and the time she regained consciousness, 30 minutes. When she regained consciousness her dog was licking her face.

Review of the evidence Up to 25 June 2020

14. Ms Bye is 68. She described herself as a double graduate nurse, although she is no longer registered. She has post graduate qualifications in behavioural science, counselling and research. She commenced but did not complete a PhD.

15. In early 2020, when Ms Bye was living in Queensland, she accepted a job offer from Converge International which meant she had to move to Canberra. She called several real estate agents while she was still in Queensland and, after viewing the property online and speaking to LJ Hooker, she decided to rent the three bedroom house which is the subject of these proceedings. She did not see the house before she signed the lease as she stayed in Queensland to finalise the packing up of her own house. She arranged for a removalist to bring her belongings from Queensland.

16. Ms Bye’s friend, Ms Marshall, came to Canberra on 18 February 2020, collected the keys, went to the houe and started unpacking.

17. Ms Bye arrived late in the afternoon on 18 February 2020. She found that the kitchen cupboards had hardly any doors, the stove did not work and there were cockroaches. She could not shut a door properly in the ensuite bathroom and the drawers in the ensuite and main bathrooms were stuck to each other so that she couldn’t open the bottom one. Ms Bye described the laundry socket as “absolutely smashed” and she believed that it was “dangerous”.

18. Ms Marshall said that she had noticed on the day she had arrived that the electrical switch in the laundry had caved in, and some of the other switches were loose in their casings. It was not clarified whether she meant the light switch which Ms Bye says caused her injury. Ms Bye has admitted, pursuant to a Notice to Admit, that the light switch relevant to her claim was not observably damaged as at 11 or 21 February 2020.

19. On 20 February 2020 Ms Bye sent an email to Ms Neal listing what she described as a few minor issues being cockroaches, the removal of items from the garden shed, issues with opening and locking the garden shed door, a dangerous hole at the front of the house, issues with locking a garage door and a broken water grate.

20. I note that there is no mention of any issue with electric switches or power points in the email.

21. Ms Bye made handwritten comments on the Report in relation to the following items: (a) The front door. (b) A floor tile. (c) The windows in the lounge room. (d) The curtains in the lounge room. (e) The smoke detector in the main bedroom. (f) The walk-in robe. (g) The ensuite ceiling. (h) The ensuite door. (i) The ensuite floor. (j) The hallway ceiling. (k) The bathroom cupboard doors. (l) The painting of the door in the toilet. (m) The smoke detector in bedroom two. (n) The middle shelf in the cupboard in bedroom two. (o) The door in bedroom three. (p) The ceiling in bedroom three. (q) The walls in bedroom three. (r) The curtains in bedroom three. (s) The ceiling in the laundry. (t) The walls in the laundry. (u) The external door in the laundry. (v) The floor in the laundry. (w) The cupboard in the laundry. (x) The tub in the laundry. (y) The doorstep in the laundry. (z) The floor in the dining room. (aa) The door in the dining room. (bb) The frames in the dining room. (cc) The vent in the kitchen. (dd) The cupboards in the kitchen. (ee) The range hood in the kitchen. (ff) The oven in the kitchen. (gg) The ceiling in the garage. (hh) The bins in the garage. (ii) The external doors. (jj) Below the cornice in the garage. (kk) The garage had not been cleaned.

22. At the end of the document Ms Bye handwrote: Additional items – As discussed with Julie: - Pest control required • cockroaches, ants inside the home - Garden shed • Garden shed door/lock to be fixed - can't open or close door • Garden shed to be emptied - RHS garage (coming up driveway) can't lock from inside or outside • Water grate broken on the outside patio area, • Address holes on RHS from front door (around corner in front of black covered pipe) Above points - photos provided to Julie requesting attention, please.

23. I note that there is no mention of the “absolutely smashed” power point in the laundry. Ms Bye said that she had not included that in her list of additional items at the end of the Report because she thought there would be a proper page that would cover every power point in the house.

24. It is the evidence of Ms Bye that on 21 February 2020 she returned the annotated Report to LJ Hooker. Ms Neal was not in the office. Ms Bye left a message, asking Ms Neal to contact her because she wanted to tell her that there was nowhere on the Report where she could indicate that there was an issue with the power points. She said she left her name and phone number with the reception at LJ Hooker, but she never heard back.

25. Ms Marshall accompanied Ms Bye to the office of LJ Hooker on 21 February 2020. She thought they had gone there because Ms Bye had to sign for the keys and drop off some papers, but she did not remember what the papers were and she was not a part of any conversation at the LJ Hooker office. Ms Marshall was not asked how long they had stayed at the office.

26. Ms Neal says she could recall meeting Ms Bye when she came into the office on 21 February 2020 to sign the lease. Ms Neal said the meeting would have taken between half an hour and an hour during which she explained to Ms Bye the lease agreement and a package of other documents.

27. I prefer the evidence of Ms Neal to that of Ms Bye in relation to whether they met on Friday, 21 February 2020 for the following reasons: (a) By email dated 20 February 2020 Ms Neal asked Ms Bye what time they should meet the next day (Friday) offering any time between 8.30 am and 10.30 am. Ms Bye replied “See you at 8.30 in your office”. (b) Ms Bye’s email to Ms Neal dated Sunday 23 February 2020 commences “Julie it was lovely to meet & speak with you last Friday”. (c) The lease was signed by Ms Bye on 21 February 2020 and her signature was witnessed by Ms Neal.

28. Accordingly, I am satisfied that they did meet, and that Ms Bye did not leave a message for Ms Neal to call her. This finding significantly impacts on the reliability of the evidence of Ms Bye because in her evidence she repeatedly relied on Ms Neal’s failure to reply to her message and send her a Condition Report for power points and light switches as part of the reason for not complaining about the power points and light switches in her emails.

29. By email dated 22 February 2020 Ms Neal advised Ms Bye that she had asked Canberra Pest Control to contact Ms Bye for access.

30. In the email dated 23 February 2020 which I have already mentioned, Ms Bye listed a number of matters needing attention – vermin inside and outside the house, a toilet leaking and overflowing, the broken and dangerous grate in the backyard pergola, the dangerous hole at the front of the house, a broken latch, one defective fence paling, an issue with a tap in the laundry, a dripping shower, a broken window lock, items in the garden shed, overgrown trees (photos of which were attached) and the concerns which she had raised in her last email.

31. I note that in this lengthy email there is no mention of any issue with electric switches or power points. Nor did Ms Bye attach a photograph of a power point or light switch. Ms Bye said that was because “there was so much damage in the house … it was just a matter of sorting through it and going through one by one. But I did make a special reference at the LJ Hooker office when Julie wasn’t there and asked the reception to ask Julie to ring me back. And I left my name and number and Julie never rang back.” I have found that Ms Bye did not leave a message for Ms Neal on 21 February 2020.

32. Ms Bye sent another email to Ms Neal on 26 February 2020 asking to have the “internal repairs” done that week while Ms Marshall was there to let in tradesmen. In that email Ms Bye mentioned that she could not access half the cupboards in the kitchen, knobs were missing on doors and there was no access to cold water in the laundry. She also referred to the matters specified in an earlier email which Ms Bye confirmed was a reference to her email dated 23 February 2020. Ms Bye again said she was waiting on Ms Neal to provide her with a document for setting out the condition of all of the power points and light switches as she had requested in the message left at Ms Neal’s office. As I have found that Ms Bye did not leave a message for Ms Neal on 21 February 2020, I do not accept this explanation.

33. As I have already said, Ms Bye also says that she was intending to discuss the issue of the broken power point in the laundry when she met with the landlord. She said that the first of these meetings was to take place on the Saturday of the long weekend in March 2020 which the parties have agreed would have been 7 March 2020. The following email chain sets out the discussions concerning the meeting.

34. On 4 March 2020 Ms Neal asked whether she and Mr Hend could come to the house “next Tuesday” at 5:30 pm to look at any maintenance issues which Ms Bye thought still required attention. That would have been Tuesday 10 March 2020.

35. On 4 March 2020 at 8:33 pm Ms Bye replied that, as she had stated previously, she was working as an emergency responder and might not be able to get home by 5.30 pm. She suggested they come on Saturday morning (which would have been 7 March 2020). Ms Bye listed her complaints saying she had been living in the house for over two weeks with minimal access to kitchen cupboards, a malfunctioning stove top for which she had to buy matches, the hole in the front yard, the broken grate, the missing door knobs, the kitchen cupboard doors scraping the fan, windows which were difficult to open, an inability to access the garden shed, the loose fence paling and a broken latch. She acknowledged that some repairs had been done.

36. I note that in this lengthy email there is no mention of any issue with electric switches or power points.

37. In an email sent on 6 March 2020 at 5:34 pm, Ms Neal advised Ms Bye that the meeting could not take place on Saturday 7 March 2020 as Mr Hend was not available and she was working for the leasing team. She also offered to have her partner come around to look at the cupboard doors.

38. Ms Bye says there had been an agreement in place for the meeting to occur on 7 March 2020 at either 9 or 10 o'clock. She said she had: … waited and waited and waited. No-one turned up. I rang the LJ Hooker office and I was advised that the owner had gone away down the coast for a long weekend with his family and that Julie Neal wasn't available but no-one bothered to ring me.

39. In cross examination Ms Bye conceded that there was an email addressed to her advising that Ms Neal and Mr Hend were not available to attend the meeting. She said that if she hadn't opened her email or it wasn't accessible she wouldn't have known about it. That was why she had called LJ Hooker.

40. I am satisfied that this evidence, in which Ms Bye is suggesting that she was not aware of the contents of Ms Neal’s email telling her that she and Mr Hend were not available to attend a meeting on 7 March 2020, is inconsistent with and cannot be reconciled with the following: (a) Ms Neal had sent her email to Ms Bye on 6 March 2020 at 5:34 pm. Ms Bye replied on the same day at 7:17pm. Ms Bye accepted Ms Neal’s offer for Ms Neal’s partner to come over to do some work. I am satisfied that this means Ms Bye had been able to open Ms Neal’s email and had read it. (b) Ms Bye sent an email to Ms Neal on Saturday, 7 March 2020 at 10:57 am. In her evidence, Ms Bye said the inspection had been arranged for 9 or 10 am that day. However this is not mentioned at all in the email. Ms Bye did not mention that she had waited and waited for them nor that she had called LJ Hooker to find out where they were. Instead, Ms Bye thanks Ms Neal for the work which had been done at the house that day and said that many of the inside issues of the house had been addressed. The email concludes “once again, thank you for taking action. Please extend my appreciation to Sharkie for his time & effort today”.

41. I decline to find that Ms Neal and Mr Hend failed to attend at an agreed inspection on 7 March 2020.

42. This finding significantly impacts on the reliability of the evidence of Ms Bye because she repeatedly relied on Ms Neal’s and Mr Hend’s failure to attend at agreed inspections as part of the reason for not complaining about the power points and light switches in her emails.

43. By email dated 21 March 2020 Ms Neal told Ms Bye that “Pat” was going to come that day to attend to the outstanding maintenance issues. She asked Ms Bye to tell her if anything remained outstanding after the visit.

44. Ms Bye sent a lengthy email in reply on the next day, 22 March 2020. She said, “the following remains outstanding to be rectified”. She mentioned the garden shed, the hole in the front yard, the back patio, the fence paling, the over-grown tree and an arrangement with Pat to commence replacing the pergola. She also asked questions about the rent and the bond.

45. The effect of these two emails is that Ms Neal asked Ms Bye for a list of outstanding issues and in her lengthy reply, Ms Bye did not mention any issue with electric switches or power points. In cross examination she said that while those issues may not have been mentioned in her email, she had contacted Ms Neal. Ms Neal denies that Ms Bye complained to her before 28 June 2020, about defective power points or light switches.

46. By email on 5 May 2020 Ms Bye informed Ms Neal of an “emergency” - the hot water system was not hot, it was lukewarm.

47. I observe that in cross examination Ms Bye agreed that the electrical issues she alleged were an emergency concern or an emergency situation.

48. Ms Neal replied later that day advising that LJ Hooker had experienced an overwhelming increase in work due to COVID 19. She advised that a plumber would attend that afternoon. It is common ground that some repairs were done that day.

49. One week later Ms Bye told Ms Neal that the water was cold. In the ensuing correspondence Ms Neal told Ms Bye that if she did not have hot water over the weekend, she would be free to contact someone from the Emergency Trades List.

50. In cross examination Ms Bye denied having ever received an Emergency List from Ms Neal on 21 February 2020 when she signed the lease. I do not accept this evidence for the following reasons: (a) It is inconsistent with Ms Bye’s email to Ms Neal dated 11 May 2020 in which she did not deny having the Emergency List but said she had received a letter from LJ Hooker stating that, unless Mr Hend authorised the work, she was not permitted to contact a tradesperson on the Emergency List. (b) As I have said, Ms Neal gave evidence of her usual procedure when leasing a property. It included having tenants sign a document entitled “Tenancy Checklist”. A copy of this document is in evidence. Ms Bye confirmed that it was her signature on the document. The effect of the document is that Ms Bye confirmed that she had received an item described as “Emergency Authorised Tradespersons” on 21 February 2020.

51. This finding impacts on the reliability of the evidence of Ms Bye.

From 25 June 2020

52. This was the description of the injury which Ms Bye gave in her evidence in chief: All right. Now, you’ve marked that with a double X. That’s about the location of the light switch that you’re talking about? ---Yes. All right. Just tell her Honour what happened when you went to activate that light switch?--- When I was walking back I just put my finger up to turn the light switch on. Which finger? --- My index finger. On which hand? --- Right hand. I was walking back and when I went that – because the light switches were already loose, I put my finger on it and I honestly don’t know, because I – it all happened so quickly. But I must have put my finger on it and went through onto the wires, which it was, and I got knocked out. I can’t tell you anymore after that. All right. What was the next thing you recall? --- Well, I don’t know how long I was knocked out for, but I woke up --- I understand, but what was the next thing you recall? --- My little girl – my little Maltese terrier licking me on the face trying to get me to wake up a bit. Okay. Was there anything about the light around you that told you what time of the day it was? --- It was dark when I woke up, I know that. All right. And what was the light like when you went to activate the light switch? --- You could still have a little bit of daylight, but it was getting dark. Okay. Are you able to say how long you were unconscious for? --- Look, I honestly don’t know, but I reckon it was probably about 30 minutes. I don’t know really.

53. Ms Bye said she felt very disorientated, very nauseous and had a massive headache. Her body was twisted. After lying on the floor for 20 to 30 minutes, she pulled herself up, she thought, by holding onto the bathtub or the shower. She then walked, with both her hands on the wall for balance, with small steps shuffling out of the bathroom area into her bedroom. She was still holding the wall but she managed to put her backside on the bed and got into her bed. She was nauseous, disorientated, sweating, and didn’t trust herself to stand up. A few hours later she realised she had a lump on her head.

54. The next morning she went into her ensuite bathroom, filled up her water bottle and drank some water. She did not eat until Sunday morning, three days later.

55. Ms Bye said she could not recall how long she had stayed in bed and thought she had not gone to work on Friday, which was the day after the electric shock.

56. Ms Bye said she had called her general practitioner but could not remember on which day. Her general practitioner tried to get her straight into an Intensive Care Unit at a hospital in Belconnen. She called the hospital and was told there was a two to four hours wait. She felt too sick to wait that long, so she stayed in bed.

57. Ms Bye said her doctor called to see if she was okay. Eventually she went to the hospital a couple of days later and was put into intensive care at the Belconnen Mater Hospital to be monitored.

58. Ms Bye said she was not able to go to work for a few days. She had informed her supervisor, whose name she could not recall by email and by phone. The supervisor wanted her to return to work as soon as possible. She thought she had had about another three or four days off work. When she tried to go back to work, about a week later, she did not cope well, was vomiting, had nausea, blurred vision, had difficulty recalling and processing information and was very tired.

59. This evidence is inconsistent with other evidence in these proceedings which I have discussed below.

Emails

60. Three days later after the date on which Ms Bye said she sustained the electric shock, Sunday, 28 June 2020, Ms Bye sent a very lengthy email to Ms Neal. It is headed “Without Prejudice”. Ms Bye expressed her concerns with health and safety issues at the house since 18 February 2020. She said a couple of the issues had been fixed but others had been ignored with Ms Neal just saying “Your emails are too long”. She listed the outstanding issues and asked for an adjustment to her rent.

61. Ms Neal denied ever telling Ms Bye that her emails were too long. There is no such statement in any email sent by Ms Neal.

62. Ms Bye did mention in this email that the power switch in the laundry was halfway out of the wall as it had not been positioned properly in the first place. Under the heading “Living area” she listed “Again power point issues” and under “Linen cupboard area” she said, “Power point switch comes out of socket”.

63. Relevantly for these proceedings, Ms Bye did not mention in this email that she had sustained an electric shock three days earlier which had rendered her unconscious for half an hour and that she had fallen to the floor, nor that she was writing the email from bed as she was recovering from that electric shock. I am satisfied that these omissions significantly impact on the reliability of Ms Bye’s evidence.

64. The email concluded: Further to your (2) cancelled scheduled appointment with the Landlord wishing to attend the proposed tentative appoints Moving forward are: Saturday 4/7/2020 @ 11.30 a.m. Or Saturday 11/7/202 @ 11.30 a.m. I look forward to your response, please confirm preferred appointment time as stated herein. Kind regards Jenny Bye C.c. JP Lawyers

65. Despite the final line in this email, in cross examination Ms Bye conceded that she had not sent a copy of the email to a lawyer, but said she had unofficially spoken to a friend, Jason Powell, who was a solicitor, on an informal basis. He was not a lawyer in Canberra, and she did not believe he had a firm called JP Lawyers. She denied she wanted to intimidate Ms Neal with legal action but did concede she had done it to try and get her complaints resolved.

66. On Monday 29 June 2020 Ms Neal retained an electrician and informed Ms Bye that the electrician would contact her.

67. Ms Bye replied on Monday, 29 June 2020. In another lengthy email she provided her availability to attend a meeting with Ms Neal and Mr Hend and again asked for a rent reduction. She said her legal counsel had advised that an agenda should be provided stating the points open for discussion before the meeting.

68. Ms Bye again did not mention having sustained an electric shock four days earlier as a result of which she had been rendered unconscious.

69. Ms Bye was cross examined in relation to the “legal counsel” she had referred to in her email. She said she had called the ACT Civil and Administrative Tribunal and they had given her the areas she could research. She conceded that she had not retained legal counsel. Ms Bye said she had included the reference to legal counsel “just [to] get some action”.

70. I also accept the submission made by counsel for the first defendant that, inconsistently with having sustained a severe injury, Ms Bye did not treat the issue with the light switch as urgent. On 29 June 2020 at 2:09 pm, the electrician told Ms Neal: The tenant said she refuses to book for any day other than a Saturday. I have made a booking for this Saturday at 9am, I should be able to get someone there that day.

71. Later that day Ms Neal replied suggesting a time for the meeting and sending a form for Ms Bye to complete to obtain a rent reduction.

72. Ms Bye’s reply at 2:46 pm on Monday, 29 June 2020 was again headed “without prejudice” and again said her legal counsel had asked for an agenda. She said that if they could not reach a compromise she would be left with no alternative but to escalate the matter.

73. Again, Ms Bye did not mention having sustained an electric shock as a result of which she had been rendered unconscious.

74. In her emails after Monday, 29 June 2020, Ms Bye did not mention to Ms Neal that she had sustained an electric shock in the house. LJ Hooker was first notified when it received a letter from Ms Bye’s then solicitor dated 10 August 2020. Employer

75. Ms Bye sent the following email to her employer on Thursday 2 July 2020 at 11.24 am: Thought I would share with you the switches throughout the ‘crap’ rental property I have just been thrown to the floor as a result of a live wire- hence Dr’s appointment this p.m. What did you say you thought I could be in a state of during our call this am? Thank you for your support … .

76. The words “I have just been thrown to the floor” on 2 July 2020 are inconsistent with Ms Bye’s evidence that the electric shock occurred one week earlier on 25 June 2020.

77. In addition, the employer has provided its records for around 25 June 2020. They show that Ms Bye attended at work on 26 June 2020 (which was a Friday) and in the following week.

78. This is inconsistent with Ms Bye’s evidence that she stayed in bed all day on Friday 26 June 2020, only drinking water.

79. Ms Bye thought that the document was unreliable because it showed she had attended one face-to-face appointment on 26 June 2020 at a time when her employer had ceased face-to-face appointments because of COVID-19. However, the documents in evidence show that staff had been required to return to the office on 15 June 2020 with no face-to-face appointments on that day but from 16 to 30 June 2020 there would be a small number of face-to-face appointments being a transition to normal work arrangements from 1 July 2020.

80. In addition, in proceedings brought by Ms Bye against her employer in the Fair Work Commission, one of her complaints was that this directive to commence face-to-face appointments had put her in danger.

81. I am satisfied that Ms Bye did work all day on 26 June 2020 and had driven herself, in accordance with her usual practice, to and from work, a trip which took 25 – 30 minutes each way.

Medical records

82. Ms Bye said she had not called 000 after she regained consciousness because she was confused and didn’t even register to do it. She agreed that, as a nurse, she was aware of the impact of an electrical current passing through the human body.

83. As mentioned in her email to her employer, Ms Bye did attend her general practitioner on Thursday 2 July 2020. This was her first attendance at the practice since 25 June 2020. There is no note in the records of the doctor having spoken to Ms Bye about the incident by phone.

84. The entry says (with typing errors corrected): Thursday July 2 2020 17:00:04 Dr Shruthi Damannagari* History: had a ? electricshock on 25/6/2020 – after coming from work has ill fitted switches in the house – spoke to real estate agent before – nil fix she loc after that for 15-30 minutes was woken up by her dog issues with cognition severe headache irregular heart rate and bp and pr fluctuating fell on her head – head sore – had lump – improving tingling numbness over rb/l arms didn’t go to hospital as it was 6-8 hr wait and didn’t call 000 too but she doesn’t seem well Examination General … oriented place, time and person delay response and speech slightly slurred eyes – pearl mild deviation of mouth to rt side c- spine tenderness – nil movements done -left leg and foot pain – bruises – very tender Advise: go to ED for further evaluation … she will go now …

85. There is a reference to a lump on the head. I am satisfied that this was the history given by Ms Bye to the doctor for two reasons – it appears under the heading “history” and it is expressed in the past tense.

86. I do not consider that this record establishes that Ms Bye attended her general practitioner with symptoms which must have been caused by an electric shock. That was not stated in the general practitioner’s referral to Calvary Hospital. Various medical records establish that Ms Bye had several longstanding medical issues as at June/July 2022. These included hypertension since 2015, coronary artery disease for which a stent was inserted in 2018, severe degenerative changes in her right foot so that it appeared fused on radiological investigation, osteoarthritis in one hip necessitating a hip replacement and operations for cancer in 2019. The general practitioner did not give evidence to explain whether he saw symptoms which had been caused by an electric shock when he saw Ms Bye on 2 July 2020.

87. Ms Bye went to Calvary Public Hospital Emergency almost 24 hours later where she was triaged at 4:02 pm on 3 July 2020. She was admitted to the short stay unit, not intensive care as Ms Bye has stated. She gave a history of having been electrocuted one week earlier. The history records “Fell back onto R) hip with head strike; burns to R) arm and bruising to L) lower leg”. On examination the hospital staff was unable to identify any burns on the arms or legs and did not find an entry or exit site. A CT brain scan and an angiogram were normal except for a reversal of normal cervical lordosis which could have been caused by a soft tissue injury. Ms Bye was discharged at 9:30 pm.

88. Ms Bye agreed that she had driven her car to and from the hospital.

89. I note that Ms Bye told Dr Fitzsimmons that she was essentially bedridden for 3 days and Dr Hatcher that she had been hospitalised in ICU for 4 days.

Other matters Photographs

90. There are two sets of photographs in evidence.

91. Ms Bye says that the photograph of the defective switch which caused her injury is in the first set of photographs which was tendered in Ex A (liability tender bundle), at page 238. She said she took it herself in the first week after she moved in in February 2020. She said she had tried to send it and other photographs to Ms Neal. The metadata which would have disclosed the date it was taken is not available, Ms Bye says, because Telstra lost her phone.

92. The second set of photographs, Exhibit 1D5, provided to the first defendant by Ms Bye’s former solicitor, was served with the metadata attached.

93. I am satisfied that, on the balance of probabilities, the photograph of the light switch which Ms Bye said gave her an electric shock at page 20 of Ex 1D5, is the same photograph as the photograph at page 238 in Ex A.

94. The metadata shows that the photograph was taken on 29 June 2020. The photograph is attached to these Reasons as Annexure A.

95. This finding impacts on the reliability of the evidence of Ms Bye.

Inspections

96. Ms Bye said on several occasions that she had not mentioned the issues with power points and light switches in her emails because she had intended to raise them at the two or three inspections which Ms Neal and Mr Hend failed to attend.

97. I have discussed the email correspondence concerning the proposed meeting on 7 March 2020. I have declined to find that a meeting had been arranged for that day.

98. In early June, Ms Bye advised Ms Neal that she was available for an inspection of the house on 11 June 2020. On 8 June 2020 Ms Neal told Ms Bye that Mr Hend wanted to come to the inspection so that any outstanding matters could be addressed. He was only available on a Saturday and she (Ms Neal) would come too although she didn’t usually work on Saturdays. They were flexible for date and time – she asked Ms Bye to suggest a Saturday “say 13th or 20th or 27th and a time and I am sure both the Owner and I will be happy to accommodate”. There is no reply to that email in evidence. On 13 June 2020 Ms Neal informed Ms Bye that she (Ms Neal) would not be available on 20 and 27 June 2020. In her reply dated 28 June 2020 Ms Bye suggested Saturday 4 or 11 July 2020.

99. There are later emails concerning inspections, but they were sent after the date on which Ms Bye said she was injured.

100. There was an inspection on 19 October 2020.

101. I decline to find that Ms Bye and Ms Neal arranged any inspection of the house between the date on which Ms Bye entered into the lease and the date on which Ms Bye says she sustained the electric shock.

102. This finding impacts on the reliability of the evidence of Ms Bye.

Findings

103. I have made several separate findings about the reliability of the evidence of Ms Bye.

104. I do not accept Ms Bye’s evidence in these proceedings unless it is corroborated by independent contemporaneous evidence.

105. Ms Neal, as apparent from the email correspondence, was extremely diligent in trying to attend to all of the defects in the property reported by Ms Bye, several of which had been caused by a recent hailstorm. There were also issues in obtaining tradesmen during COVID-19 restrictions. Counsel for the plaintiff described her as “a woman who is committed to her career and advancement”. I do not consider that there was any basis for this submission. Ms Neal is no longer employed by LJ Hooker and has moved away from Canberra. I prefer the evidence of Ms Neal, which was consistent with the contemporaneous documents, where it conflicts with the evidence of Ms Bye.

106. I: (a) Decline to find that, at any time up to and including 27 June 2020, Ms Bye made any complaint to LJ Hooker or Mr Hend about a defective light switch in the house. (b) Find that Ms Bye has failed to establish that she sustained an electric shock on 25 June 2020.

107. In making these findings I have taken into account the following: (a) My finding that I do not accept the oral evidence of Ms Bye unless it is corroborated by reliable contemporaneous evidence. (b) I do not consider the medical records made in the ten days following the accident to be corroborative reliable contemporaneous evidence as the notes of the general practitioner and the hospital notes only record Ms Bye’s complaints and do not document an objective injury or disability caused by an electric shock. (c) I have accepted the evidence of Ms Neal. (d) The fact that Ms Bye did not sustain an electric shock on 25 June 2020, is the most plausible explanation for Ms Bye's failure to mention having sustained an electric shock in her emails to LJ Hooker after 25 June 2020. (e) Ms Bye’s failure to call 000, her delay in seeking medical attention and Ms Bye's return to work on the following day, are all inconsistent with Ms Bye having sustained an injury of the severity described by Ms Bye.

108. I would add that the defendants have submitted that Ms Bye’s evidence did not actually describe her receiving an electric shock but rather that she said she put her finger on the light switch and then she said, “I honestly don’t know, because I – it all happened so quickly. But I must have put my finger on it and went through onto the wires, which it was, and I got knocked out. I can’t tell you anymore after that”. This, they submitted, was supposition or speculation which could not raise a more probable inference in her case so that Ms Bye’s claim would fail. In circumstances where I have not accepted Ms Bye’s uncorroborated oral evidence, I do not take this submission into account in making my decision. However I consider that this would have been another difficult hurdle for Ms Bye to overcome, as I discuss later in these Reasons, if I had not made that finding.

Ms Bye’s case

109. If I am wrong in my determination that Ms Bye has not established that she sustained an electric shock, I have set out below some other findings I would have made if it had been necessary to do so.

110. Counsel for Ms Bye summarised Ms Bye’s case as follows: 16 Liability for the incident is in issue. The standard of care required of the Defendants in this case is set out at s. 42 CWA. It incorporates the knowledge had at the time, but it also contemplates the information that it ought reasonably to have had. While the Plaintiff is unable to point to any evidence relating to a state of knowledge that the Defendants had at the time she entered the property as a resident pursuant to a residential tenancy, it is respectfully submitted that there is evidence of information the Defendants ought to have had at the time of the incident that gave rise to the harm. 17 It is respectfully submitted that the risk of harm to which the Plaintiff was exposed in the circumstances was foreseeable, was not insignificant, and was a risk which, in the circumstances, a reasonable person in the position of the Defendants should have taken steps to guard against. So much is evident from the time that elapsed between the notification of electrical issues and the resolution of such issues. It is also apparent from what appears from the evidence of Ms Neale. 18 It is respectfully submitted that: (a) There was a probability of harm being suffered by the Plaintiff as a result of electric shock if precautions were not taken. So much is evident from the evidence of Ms Neale and the manner in which the Plaintiff was cross examined in the course of the hearing. The photographs are consistent with this proposition; (b) The risk of the Plaintiff suffering an injury by way of electric shock constituted serious harm; (c) The burden of taking precautions against such a risk was not great. A sum of several hundred dollars corrected the defects that gave rise to the harm. The defects could be corrected simply in terms of arrangements and relatively quickly in terms of time. 19 It is further submitted that the risk of suffering injury was not insignificant. Both doctors agreed that an electric shock may have devastating consequences including death. The PM referred to the urgency with which electrical issues are treated from her perspective as a PM. It is respectfully submitted that the seriousness of this risk is not in dispute. 20 While liability is governed by the terms of s. 168 CWA, it is clear that other sections of the CWA are relevant though they do not present a barrier to the Plaintiff’s success in this case. The Characteristics of the light switch 21 The notion of the risk presented by the electric switch is a relevant consideration. The condition of the switch at the time of the electric shock is noted in the photograph which appears at numerous locations in the material before the court. In so far as the photographs of the switch is concerned, there is some uniformity in the photographs with meta data dated 29 and 30 June 2020. Those photographs are relied upon due to the fact there is metadata attaching to them. They depict defects in the switches that is consistent with an electric shock being delivered to the Plaintiff. 22 The Plaintiff gave evidence that she was not trained or qualified as an electrician. It is respectfully submitted that she should not be fixed with any awareness that the switch may have given rise to an electric shock when she activated it. It is likely a move that she undertook on numerous occasions prior without incident between February 2020 and June 2020. The switch was located at a place in the house upon the property that was part of a thoroughfare between bedrooms and a living area. This means that it was likely used regularly. 23 The switch alleged to have been the source of the risk presented as one that might give rise to such a shock. It was replaced by an electrician. 24 The Plaintiff seeks findings as to the characteristics of the light switch at the time she suffered the electric shock. That the switch was in the condition depicted in the photograph.

111. I understand that Ms Bye says: (a) As admitted, the light switch was not observably damaged when she signed the lease. (b) The photograph of the light switch shows its condition on 29 June 2020. (c) The light switch gradually deteriorated between 21 February 2020 and 29 June 2020. (d) The defendants ought to have been aware before 25 June 2020 that the light switch was dangerous and had it fixed.

112. Putting to one side the defendants’ submission that Ms Bye has failed to identify the risk of harm, I do not consider that there is any persuasive evidence of a number of other matters where the onus is on Ms Bye – (a) what is meant by the expression that the light switch had gradually deteriorated, (b) when did the deteriorated state of the light switch become apparent to Ms Bye, and (c) why and when ought the defendants have become aware of the dangerous condition of the light switch.

113. The fundamental proposition that the light switch deteriorated over time is contradicted by the photograph which Ms Bye said was taken of the light switch in the first week being exactly the same as the photograph taken on 29 June 2020.

114. When she was asked, in cross examination, to explain the deterioration in view of the photographs being the same, she said they had deteriorated by normal use. I do not consider this to be an explanation of how the two photographs could be the same.

115. In my view this would mean that Ms Bye’s action would have, in any event failed.

116. Even on the assumption that, on the basis of Ms Bye’s admission, there would be a finding that the light switch was not observably damaged on 11 or 21 February 2020, I also would not have accepted, in the absence of expert evidence, that the state of the light switch shown in the photograph could have been the result of gradual deterioration in less than four months caused only by normal use.

117. Even if there had been a finding that there had been a gradual deterioration from an undamaged light switch to the light switch shown in the photograph, there is no evidence as to when such deterioration could first be seen.

118. Even if that finding could be made, Ms Bye would still have to show the date or time from which the defendants ought to have known of that gradual deterioration. As I understand it, this submission rests solely on the proposition that if the defendants had not cancelled the inspections, they would have seen it for themselves. I have already reviewed the evidence in relation to the proposition and decline to find that there were any such cancelled inspections between 21 February 2020 and 25 June 2020, nor was there any evidence or submission that there should have been such an inspection. Accordingly, there would have been no basis on which to find that the defendants ought to have known of any defect. Orders

119. Accordingly, I make the following orders: (1) A verdict for each of the defendants against the plaintiff. (2) The plaintiff is to pay each of the defendants’ costs. (3) Liberty is granted to all parties to seek an alternative order in relation to costs by filing and serving written submissions and any evidence within 21 days of the date of this judgment. (4) The First and Second Defendants to have seven days to agree on the Orders to be made in relation to each of their Notices Claiming Contribution or Indemnity. If such agreement is reached the defendants are to file proposed Orders within 14 days of the date of this judgment. If such agreement cannot be reached, the defendants are to file and serve written submissions as to the Orders they say should be made within 21 days of the date of this judgment.

I certify that the preceding one-hundred and nineteen [119] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Balla. Associate: Date:

Annexure A