Dimitrelos v 14 Martin Place Pty Limited & 3 Ors

Bill Dimitrelos (Appellant) 14 Martin Place Pty Limited (First Respondent) PARTIES: Rebel Property Group Pty Ltd (Second Respondent) KONE Elevators Pty Ltd (Third Respondent) Chersteron International (NSW) Pty Limited (Fourth Respondent)

Ms S Norton SC / Ms M Fraser (Appellant) COUNSEL: Mr D Cutler (1st, 2nd and 4th Respondents) Mr C Locke (3rd Respondent)

Brydens Law Office (Appellant) SOLICITORS: Abbott Tout (1st, 2nd and 4th Respondents) Goldrick Farrell Mullan (3rd Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40256/06

HODGSON JA YOUNG CJ in Eq BELL J

Tuesday 5 June 2007 Bill Dimitrelos v 14 Martin Place Pty Limited & 3 Ors Judgment 1 HODGSON JA: I agree with Bell J. 2 YOUNG CJ in EQ: I have read in draft the judgment of Bell J in this matter and I agree with what her Honour says, but wish to make some additional comments of my own. 3 The case is unusual in that her Honour, the trial judge, accepted that the accident happened in the way that the plaintiff said it happened, that is, he was in lift No 6 in the first defendant's building, the lift ascended to level 19 but the doors failed to open. He then heard noises above him which sounded like loud whipping, the lift started to moan and jolt and then jerk. He heard a sound which he said was like cables hitting the lift, the lift then moved downwards swiftly. It went to the lower ground floor, moved to the ground floor and came to an abrupt stop. The plaintiff also said that as the lift was moving downwards his feet went up towards the ceiling and when he came to rest he landed against the side of the lift on the left side of his neck and left shoulder. 4 However, her Honour also accepted the only expert evidence given by Mr Thompson on behalf of the third respondent. He could not explain the plaintiff's description of the lift movements nor the noises the plaintiff heard. He suggested that the probable scenario was that the lift lost its position in the shaft, that it programmed to reset itself by travelling to the lower ground floor, that it levelled out at the ground floor, and that, in the heat of the moment, the plaintiff believed the lift was travelling at a higher speed than normal. 5 Of course, this does not explain why, as the lift descended, the floor indicator continued to operate, nor does it explain how the plaintiff came to be injured as he was. 6 Indeed, this case has a number of peculiarities. The first is that although her Honour accepted that the lift descended swiftly and caused the injuries about which the plaintiff complained, she also accepted Mr Thompson's evidence that it could not have been travelling at a higher speed than normal. Secondly, she accepted the plaintiff's evidence even though she also accepted Mr Thompson's evidence that lifts do not have recuperative powers. Third, her Honour seemed to accept that the probabilities were that when lift malfunctions were suggested to the third respondent and its engineer called at the premises and found nothing wrong, that therefore there was nothing wrong. 7 However, in a lot of litigation, a judge has to make up his or her mind as to the probabilities even though there appear to be some inexplicable facts pointing the other way. A judge just has to do the best with the available evidence. 8 A prime thrust of the argument of Ms Norton SC for the appellant, was that her Honour should have applied a notion in the nature of res ipsa loquitur. 9 I have some sympathy with this. I do not consider, with respect, that it is correct to say that merely because what is involved is a complex piece of machinery that res ipsa loquitur or principles akin to res ipsa loquitur are ruled out, and I do not consider that cases such as Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 are authority for that proposition. 10 If there is a situation where one can say that what has occurred does not ordinarily occur without negligence, then if it is unexplained it is possible to infer negligence. This is merely an aspect of the inferential reasoning processes of a tribunal of fact; see Schellenberg at 133. 11 It is possible that one can have a case of res ipsa loquitur or a situation akin to res ipsa loquitur even though the injury happened as a result of complex machinery. Thus, in Swan v Salisbury Construction Company Ltd [1966] 1 WLR 204, the Privy Council held that the doctrine applied in the case of the collapse of a crane which was being used to drive piles for the foundation of a building. 12 However, in the instant case, her Honour said at [18]: "I am not persuaded that this accident was of a kind which does not ordinarily happen without negligence."

Although that finding seems to be intertwined with an assumption that one does not make out a case of res ipsa loquitur where complex machinery is involved, it seems to me that her Honour's reference to "despite the submissions by Mr Lidden" (Mr Lidden was counsel for the plaintiff) shows that her Honour took into account more than that particular factor in reaching a decision on the facts which was well within her mandate to reach, and it has not been shown in this appeal to be a finding that can be set aside. 13 Indeed, even if the trial judge accepted that lifts do not fall 19 floors without negligence, when taken into the factual mix with the evidence of Mr Thompson, her Honour would still have been justified in coming to the view that, on the whole of the evidence, the plaintiff had not proved negligence. 14 The other matter about which I wish to make an observation is the idea that if a building owner and occupier contracts with a reputable lift company to service the lifts that that is necessarily the end of the matter so far as that person's responsibility for accidents is concerned. 15 In Haseldine v C A Daw and Son Ltd [1941] 2 KB 343, 356, Scot LJ gives the impression that it is always sufficient for the occupier of a building to discharge its duty so far as providing proper lifts by choosing a first class firm of lift engineers to superintend the lifts. 16 I would respectfully suggest that in this 21st century that may not be a sufficient statement. The duty to keep lifts maintained means more than a duty to attend to cases where there has been a malfunction of the lifts and also extends to taking such preventative measures as will ensure that the lifts will not malfunction; see Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Ltd (1989) 18 NSWLR 33, 40. 17 There may well be cases where despite some form of maintenance contract with a reputable lift engineering company, the terms of the contract are such that the occupier has not discharged his duty. 18 However, in the instant case, despite the fact that the occupier opted for a cheaper maintenance contract than one might have thought was appropriate, and despite the fact that there were a considerable number of malfunctions of lift No 6 (including a couple of occasions where the lift was alleged to be "lost"), the judge was not satisfied on the facts that there was a failure to maintain. That, again, was a matter entirely within her mandate. 19 I cannot see how her Honour did not conduct the fact finding exercise committed to her in a competent and proper manner and I cannot see any error that she made which would call for review on appeal. 20 Accordingly, I agree with the orders proposed by Bell J. 21 BELL J: The appellant was working as a security guard at the Colonial Mutual building located at 14 Martin Place, Sydney (the building) in the early hours of 7 January 2004 when he suffered injury in an incident involving a lift, which malfunctioned and descended rapidly from the 17th floor to the lower ground floor. 22 The appellant brought proceedings in the District Court claiming damages for negligence against the owner of the building, 14 Martin Place Pty Limited, the first respondent, and the managing agent of the building, which was at the relevant time either the second respondent Rebel Property Group Pty Ltd (Rebel), or the fourth respondent, Chesterton International Property Consultants Pty Limited (Chesterton). These three respondents had a common interest and were jointly represented. When referring to them collectively in these reasons I will describe them as "the building respondents". The third respondent, KONE Elevators Pty Ltd (KONE), was responsible for the maintenance of the lifts in the building. 23 The incident occurred at around 2.00 am. The lift returned to the ground floor after its unusual descent and the appellant was able to get out of it. A KONE technician attended not long after the incident and did not discover any fault in the mechanism of the lift. 24 The trial came on for hearing before Truss DCJ on 15 March 2006. At the trial a central issue was whether the event had happened in the way the appellant said that it had. The trial Judge resolved this issue in favour of the appellant. She found the following facts concerning the incident.

25 The appellant entered lift six and travelled to level 19. Nothing unusual occurred on the way up. The lift stopped abruptly at level 19 and the doors failed to open. The appellant pressed the "door open" button several times. He then used his swipe card to access another floor, but the card was not acknowledged. He heard loud whipping noises above him and the lift started to jolt. He attempted unsuccessfully to contact KONE using the emergency button in the lift. The lift started to jerk and the appellant was lifted off his feet. The third time he pressed the emergency button someone answered the call, but the line kept breaking up. The appellant identified himself and his location, saying that he was stuck in lift six which was making strange noises. He asked the person to telephone him back. He waited for a couple of minutes and the lift started to jerk and move downwards. He heard a sound, which was like the sound of cables hitting the lift. He started to panic. He telephoned his employer, Mr Lind, and asked him to contact KONE and then to call him back on his mobile telephone. Mr Lind did so and at the time of the second telephone conversation the movement of the lift had become more violent. The indicator showed the lift was located on level 17. From here it commenced to descend swiftly to the lower ground floor. The appellant was in fear for his life. 26 During the descent the appellant was thrown off his feet and he landed against the wall of the lift on the left side of his neck and shoulder. The lift moved down to the ground floor and came to an abrupt stop. The appellant crawled out of it. He felt numb down the left side of this body and he had dislocated his left little finger. About 15 to 20 minutes later a KONE mechanic arrived. The appellant told the mechanic what had occurred and the mechanic told him that it was not possible. They travelled to level 19 in another lift, in order to turn off lift six. 27 Mr Lind gave evidence, which was supportive of the evidence given by the appellant. He heard the appellant swearing and screaming and he heard the sounds of the appellant's mobile telephone bouncing in the lift. He heard a loud thud and a scream. 28 The trial Judge found the evidence of the appellant and Mr Lind to be compelling. The case in negligence 29 The respondents admitted that they owed a duty of care to the appellant. The building respondents acknowledged the content of the duty imposed on them was to provide a reasonably safe system of lift operation for entrants to the building. KONE acknowledged that it was subject to a duty to take reasonable care for the safety of persons using the lift. The issues were whether one or more of the respondents was in breach of its duty and, if so, whether its negligence was causative of the appellant's injury. 30 The appellant's particulars of negligence pleaded against all four respondents included: (a) Res Ipsa Loquitur ; (d) failing to maintain or adequately maintain the number six lift; (g) failing to ensure that the automatic stopping mechanism of the lift was operative; (h) having on the premises a lift which was capable of dropping more than 17 floors rather than only a few inches; (i) failing to ensure that the automatic stopping mechanism on the lift would bring it to a halt within a few inches after cable or mechanical or electrical failure. 31 There were six lifts in the building. All were around 30 years old and they had exceeded their economic life. They had been installed by a firm named EPL that had been brought out by KONE, which had maintained them thereafter. The adequacy of the maintenance of the lift, given its age and history of reported faults was a central issue.

32 The contract that was current at the date of the incident was entered into between Rebel and KONE on 1 July 2002 and provided for the maintenance of the six lifts in the building for a period of three years; the KONE Select Service Agreement, exhibit K (the service contract). It was a performance-based contract, which did not require KONE to make maintenance inspections at stated intervals.

33 Before entering the service contract KONE advised Rebel, by letter dated 17 October 2001, (exhibit M) as follows: Further to our telephone conversation on the 17.10.2001 regarding the above described matter, we confirm the following. The Current Maintenance price is $83,295 (Eighty Three Thousand, two hundred and Ninety Five Dollars) per annum excluding GST. The price is based on the fact that the contract is currently in monthly rollover following the expiration of the original 5-year agreement. We advise that our company installed the lifts in this premises and have maintained them for the last 26 years. We are pleased to be able to offer a reduction on current charges for a 3 (three) year contract and a further reduction for a 5 (five) year contract. Based on an agreement which allows for a comprehensive range of services to you and your tenants including: · Full comprehensive maintenance in accordance with KONE Elevators recommended periodic and run counter based time intervals. · Full parts replacement. · Electrical fusion. · 24 hour emergency call-out facility. · KONE software releases. · No elevator usage limits. · Regular client meetings at mutually agreed time intervals. · Dedicated account manager. · Annual operational reports. Our price to provide these services in accordance with our standard terms and conditions would be: Fortnightly maintenance · $79,230 (Seventy nine thousand, two hundred and thirty dollars) per annum excluding GST based on a 3-year term. · $77,684 (Seventy seven thousand, six hundred and eighty four dollars) per annum excluding GST based on a 5-year term. Monthly Maintenance · $67,430 (Sixty seven thousand, four hundred and thirty dollars) per annum excluding GST based on a 3-year term. · $66,108, (Sixty six thousand, one hundred and eight dollars) per annum excluding GST based on a 5-year term. Please note that contract options may be tailer made (sic) to suit individual building and client needs. Due to the age of the equipment, KONE Elevators would recommend that the lifts be comprehensively maintained with a minimum of fortnightly visitations. However we understand that significant savings can be made if your choose to self-insure for major repairs, electrical fusion and by paying for spare parts separately. 34 Significant emphasis in the appellant's case against the building respondents was placed on KONE's advice that due to their age the lifts should be comprehensively maintained with a minimum of fortnightly visitations. 35 During the currency of the service contract KONE wrote to Chesterton, on 26 September 2003, advising: The lifts at 14 Martin Place Sydney were installed in the early '70's and have ECL Control (Elevators CompuLogic). This is a very early transistor logic control system, and as each year passes, it is becoming increasingly more difficult to maintain due to the lack of components and spare parts. Module boards are integral components of the controllers and at any time they become faulty, they are repaired rather than replaced. This situation can only be completely addressed by an upgrade of the controls, and advisedly within the next 5 year period. Bearing the above comments in mind, it may prudent to plan for a full upgrade of the lifts to AS 1735.2.2001 (in this way you are managing your risk) rather than waste a great portion of the owner's expenditure in eliminating a particular risk which would become cost affective in the event of an upgrade (exhibit L). 36 At the date of the incident the upgrade to the controls of the lifts had not been carried out. 37 None of the mechanics responsible for servicing the lifts, or any other KONE employees, were called. The evidence of the service history of the lifts was contained in two documents produced by KONE. The first described as a "Schedule of service records and call and fault reports (lift six) updated 3 August 2004" (exhibit N) was tendered in the appellant's case. It recorded the following: Service Records Call Reports 30 January 2003 12 February 2003 - Lifts Stopped (faulty FSD Module) 14 February 2003 - Not responding to certain level 17 February 2003 - Lift Stopped 27 February 2003 6 March 2003 7 March 2003 - Lift Stopped 7 March 2003 - Lift Stopped (Electrical Burning Smell from lift) 23 April 2003 - Doors wont close/close slowly (Door sensor not working) 24 April 2003 - (x2) - Not respondent to certain level (Moving erratically-missing floors going up and down shaft) 24 April 2003 - Lift Stopped (Blowing FDO fuse suspect faulty door) 1 May 2003 2 May 2003 6 May 2003 - Lift Stopped (Jamming Doors) 12 May 2003 12 May 2003 - Lift Stopped 4 July 2003 9 July 2003 16 July 2003 - Lift Stopped (Doors closed upon arrival at ground floor) 25 July 2003 - Lift Stopped 31 July 2003 - Lift Stopped 12 August 2003 13 August 2003 - Lift Stopped 25 August 2003 - Lift Stopped 29 August 2003 - Lift Stopped 10 September 2003 - Lift Stopped (Doors not closed fully on 10th Floor) 29 September 2003 13 October 2003 - Lift Stopped (Doors opening and closing at level 9) 16 October 2003 - Lift Stopped 20 October 2003 23 October 2003 - Lift Stopped 28 October 2003 - Lift Stopped (Doors opening and closing at level 9) 31 October 2003 - Doors opening and closing at level 9 13 November 2003 18 November 2003 - Lift going to incorrect floor (Lift keeps arriving at Plant Room level) 21 November 2003 - Doors won't open (Doors opening and closing on level 9) 26 November 2003- Doors open and close quickly (Doors opening and closing on level 9) 7 December 2003 Lift making loud noise and shaking constantly 7 January 2004 - Lift Stopped/Lift dropped from level 17 19 January 2004 - Lift stopped with passengers 6 February 2004 9 February 2004 - Vandalism - Access Panel damaged 19 February 2004 23 March 2004 - Lift Stopped 24 March 2004 - Stopped with passengers 24 June 2004 - Lift Stopped (Car Calls not latching for 10-15 minutes even with manual key) 25 June 2004 - Lift Stopped (Car Calls not latching) 12 July 2004 - Lift Stopped (Lift stopped on ground floor and level 19) 20 July 2004 - Lift Stopped with passengers

38 KONE also produced a computer printout titled "Maintenance and calls detail report" for the period 1 January 2003 to 1 March 2004 (exhibit 5), which contained a brief description of the maintenance carried out by mechanics on the lifts in the building.

39 John Thomson, an electrical engineer with long experience in the lift industry, gave evidence in KONE's case. Mr Thomson prepared a report, which is dated 6 December 2004 (exhibit 4). Prior to writing the report he conducted a brief inspection of the lift machinery, the shaft and the pit of lift six. Mr Thomson was supplied with copies of the service records and call reports (exhibit N), the computer maintenance records (exhibit 5), KONE's Hazard Risk Analysis for Lifts, the letter of 26 September 2003 (exhibit L), the service contract (exhibit K), the statements made by the appellant and Mr Lind, and a copy of the ordinary statement of claim. 40 Mr Thomson said that the service contract was a typical standard industry maintenance contract, which included some performance guarantees. He noted that one of the contract requirements was an annual survey report and that he had not seen such a report. Counsel for the appellant called for the annual survey reports in the course of the trial and none were produced. It appears that a subpoena issued at the request of the appellant had been served on KONE. The subpoena was not in evidence. 41 Mr Thomson reviewed the maintenance history of lift six for the period 30 January 2003 to 5 March 2004, which he said showed that it was being regularly maintained. He reviewed the history of reported faults in the operation of the lift for the period 30 January 2003 to 19 January 2004, which showed 28 reports. He said of this history: At first glance this appears high but a breakdown of the individual faults show that if we exclude faults that were out of the control of KONE (material being trapped in door tracks), lift operating correctly when the service mechanic arrived on site and no fault can be found, etc the total number is reduced to 12. I would expect a reasonable fault rate for lifts of this age, type and usage would be 12 to 18 per year. 42 There was only one reference in the KONE records to the report of a fault on the day of the incident (call no. 353764 logged in at 02:45). This record did not show the cause of the fault, nor did it show that any repair had been carried out as a result of it. 43 Mr Thomson referred to the appellant's description of the behaviour of the lift during the incident. Mr Thomson was unable to provide a possible explanation for the lift behaving in the fashion described. He said that if the electrical power to the motor, and all of the braking and safety devices failed, with only one person in the lift it would have travelled upwards due to the effect of the counterweight. The fact that the lift descended meant that the motor was driving it. 44 Mr Thomson gave this opinion concerning the cause of the incident (Blue 483.D-I): It is my opinion that for some reason the lift developed a fault (clipped a door lock, lost its position in the lift shaft, lost power momentarily, something interrupted the lift's safety mechanism, etc) and the lift came to a stop. If the fault were to be cleared the lift will try to "reset" itself by travelling to the lowest floor and then returning itself back to normal service. When this lift does a "reset" it will travel directly to the lowest floor, normally at a reduced speed, but it may appear to be travelling faster than normal due to the long distance (i.e. travelling from level 19) and as you cannot see out of the lift car there are no points of reference to tell how fast the lift may be travelling. The lift may come to a stop more abruptly than in normal position but not at a rate that would cause injury to a passenger. 45 Mr Thomson said that he had seen no evidence to suggest that KONE could have known of, or could have prevented, the happening of the incident on 7 January 2004. Many of the items identified in KONE's Hazard and Risk Assessment (which had been carried out in August 2003) could have been effected before that date but nothing identified in the Assessment would have prevented or reduced the likelihood of the incident occurring. He observed that if the controls of the lifts had been upgraded it would have removed the need of the lift to reset itself. 46 In summary, Mr Thomson concluded that the lift had apparently been operating reliably prior to the incident as detailed in the KONE service records. Appropriate maintenance had been carried out on it before the incident and there was an appropriate maintenance contract in place at the time of the incident with a reputable lift maintenance company. The contract complied with the requirements of the Occupational Health and Safety Regulations and satisfied the requirements of the lift code AS 173.2. The Judge's findings 47 The Judge held that the doctrine of res ipsa loquitur did not apply in the circumstances of this case. 48 The appellant's case against KONE was that the incident was caused by the failure of one of the lift's commutators, being a fault for which KONE was responsible or, alternatively, that it was the result of inadequate servicing and maintenance. 49 Her Honour rejected commutator failure as a probable cause of the accident. The mechanic who inspected the lift shortly after the incident found no fault in it. There was no subsequent report of a fault in the commutator. Her Honour considered that if the commutator had failed the fault would not have corrected itself. 50 At trial counsel for the appellant was critical of KONE for its failure to call the mechanics who had serviced the lift and for its reliance on unexplained records. Her Honour noted that the appellant bore the onus. Mr Thomson was the only expert to give evidence and he had adhered to the opinion expressed in his report; according to KONE's service records the lift was apparently operating reliably and there was an appropriate maintenance contract in place. Her Honour found a verdict in favour of KONE. 51 The building respondents did not adduce any evidence. The appellant's case against them was that they were aware that the lift had a high level of reported faults and their failure to act on KONE's advice (to implement fortnightly maintenance inspections or to upgrade the controls of the lift) breached their duty and was causative of the appellant's injury. 52 Her Honour did not find that there was any causative link between the failure to upgrade the controls of the lift and the appellant's injury. She held that the duty owed by the building respondents was delegable and that they were entitled to rely on KONE's expertise. Her Honour accepted Mr Thomson's evidence that the maintenance contract with KONE was appropriate. Her Honour found verdicts in favour of each of the building respondents.

53 The appellant challenged the judgment on liability on 13 grounds. A number of them overlap and not all were pursued on the hearing of the appeal. Grounds one and two contended that the Judge's findings were contrary to the evidence. Neither ground, as framed, was pressed. The central challenge was to her Honour's finding that the maintenance of the lift was adequate. This is the subject of ground six. 54 Ground three challenged the Judge's rejection of res ipsa loquitur as a basis of liability against each of the respondents. 55 Her Honour referred to the principles relating to the doctrine of res ipsa loquitur explained in Schellenberg v Tunnel Holdings Pty Limited [2000] HCA 18; 200 CLR 121 per Gleeson CJ and McHugh J at 134 [25]: Piening v Wanless (1968) 117 CLR 498 and Anchor Products Ltd v Hedges (1966) 115 CLR 493 as well as other cases in this Court make it clear that a plaintiff may rely on res ipsa loquitur even though he or she has also pleaded particular acts or omissions of negligence on the part of the defendant provided that the tribunal of fact concludes that (see Balkin and Davis, Law of Torts , 2nd ed (1996), pp 287-296; and Fleming, The Law of Torts , 9th ed (1998), pp 35-359): 1. there is an "absence of explanation" of the occurrence that caused the injury;

2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and

3. the instrument or agency that caused the injury was under the control of the defendant.

Her Honour also noted the judgment of Barwick CJ in Piening v Wanless (1968) 117 CLR 498 at 508: If the occurrence is to provide evidence, it can only be that, within the common knowledge and experience of mankind, that occurrence is unlikely to occur without negligence on the part of the party sued. By that very statement, the occurrence is unlikely to provide evidence except in connexion with machines or machinery of whose working and use the ordinary man has knowledge and experience. I do not think that the mechanical make-up of, and the forces operating on or with, the steering mechanism of a car are within such knowledge or experience.

56 Her Honour approached the matter on the basis that lifts are complex machines the operation of which is beyond the knowledge and experience of ordinary persons. She did not find that the incident was of a kind which does not ordinarily occur without negligence. 57 The Judge correctly stated the principles governing liability based on the doctrine of res ipsa loquitur and concluded that the doctrine did not have application to the appellant's case against any of the respondents.

58 On the hearing of the appeal Ms Norton SC, who with Ms Fraser appeared for the appellant, did not challenge the Judge's finding that the unexplained failure of the lift was not an occurrence of a kind that is unlikely to occur without negligence. Ground 3 as framed was not pressed. Rather, Ms Norton submitted by a process of reasoning analogous to the doctrine of res ipsa loquitur, that the common experience of ordinary persons is that lifts do not continuously malfunction if they are being properly maintained: the lift's history of reported faults required KONE to carry out more extensive maintenance than it had done and required the building respondents to implement a regime of greater maintenance or to upgrade the lift. These submissions were developed in support of grounds 6, 8, 9, 11-13 and I will return to them.

59 Grounds 4 and 5 challenged the Judge's rejection of commutator failure as the probable cause of the lift's failure.

60 Mr Thomson gave evidence about the operation of commutators. The electrical power to each of the lift's two motors is received through a commutator. The commutators are made of round brass segments and have carbon brushes inside them. When the brushes become worn the electrical power can arc across the commutator, interfering with the performance of the motor. If the problem is not too bad the commutator can be fixed by cleaning the brushes. 61 There had been a fault in one of the lift's commutators which caused the lift to malfunction on 7 December 2003. On that occasion the commutator was reported to be arcing. Mr Thomson said that a major commutator fault would ordinarily result in a lift being shutdown for a number of days. It would depend on how badly the commutator was damaged. 62 The records relating to the lift's failure on 7 December included a number of entries in the logbook, which was maintained by security staff employed by Lind Security, the appellant's employer (exhibit O). The logbook was kept in the security control room of the building, and the building manager, John Askwith, had access to it. Security staff recorded incidents of note in it including lift faults. The entries concerning the lift failure in December 2003 are as follows: 6 December John, in regards to lift No. 6, from LG to L9 whilst in lift, there was a terrible vibration in lift. 7 December Lift 6 - lift rocking badly and making loud noises. Tech: noisy during operation. Motor commutator arcing, shut down for repairs. Technicians arrived at 19.50. Lift back in service 20.20. Contact John Askwith to let him know about the problem with lift No. 6. 8 December 2003 record KONE Lift Services was on site at 19.38. I went with him to R 3 - lift motor room and switched off lift No. 6. We both left at the same time. Not charged to you. I was next door when they came. That's okay by me. Let's hope they fix the lift today. Thanks Tevita. Thank you for the info about lift # 6. It will be out of action till at least 9/12/2003. 63 KONE's computer service records show that the lift was shut down for repair on 7 December, that it was noisy during operation, that it was rocking badly and making loud noises. KONE's schedule of service call-out records "lift making loud noise and shaking constantly". 64 In the appellant's submission, a number of features of the commutator failure recorded on 7 December were consistent with the appellant's account of the behaviour of the lift on 7 January. Aspects of this theory were raised with Mr Thomson in cross-examination. Mr Thomson agreed that if the commutator had failed it was possible that this could have contributed to the lift's jerky and jolting movements. He agreed that a faulty commutator may affect the power to the motor, which would affect the speed of the lift and that a faulty commutator could cause a lift to over speed. 65 It was not put to Mr Thomson, in terms, that the probable cause of the incident was commutator failure. Mr Thomson said that there was nothing in the records to indicate that any repairs had been carried out to the commutator of either of the lift's motors in the period after 7 December 2003.

66 In explaining why she rejected commutator failure as a probable cause of the incident the Judge observed that, "Mr Thomson said in evidence that lifts do not have recuperative powers" [38]. Mr Thomson did not use the expression that lifts do not have recuperative powers. He did say that he did not expect that a fault in the electronic control system of the lift would fix itself. The Judge's reference is to the summary of Mr Thomson's evidence given by the appellant's counsel in the course of closing submissions: It's not the fact that they heal themselves even though Mr Thomson liked to use phrases to indicate this lift is thinking. It's not thinking at all it's just following electronic processes, so it's got no recuperative powers. (Black 209.I-K). 67 It was open to the Judge to draw the inference that if the commutator had failed, in the absence of repair, the fault would continue to manifest itself and to find that it was unlikely that commutator failure was the cause of the incident.

68 The principal challenge advanced on the appeal was to the Judge's acceptance of Mr Thomson's evidence that the service contract provided an appropriate regime of maintenance for a lift of this age and that the maintenance carried out on the lift had been adequate. 69 The Judge's findings in each of these respects was dependent on her acceptance of the evidence of Mr Thomson. Central to the criticism of her acceptance of this evidence was that Mr Thomson's report was based on the history of faults recorded in the KONE documents, exhibit N and exhibit 4. There was evidence that a greater number of faults had been reported but not passed onto KONE. These were recorded in the security logbooks. Mr Thomson's attention was directed to these additional reported faults in the course of cross-examination. In light of his acknowledgment that the industry standard for average reliability in lifts was seven to 10 faults per annum, his adherence to the opinion expressed in his report was submitted to be insupportable.

70 Mr Thomson's attention was directed to the contents of KONE's letter (exhibit M), which predated the service contract. He agreed that two maintenance regimes were being offered; one fortnightly and one monthly and that the costings suggested that the option accepted by Rebel was based on monthly inspections. He went on to say that the service contract which was entered was based on performance outcomes and not on frequency of visits and that this was in accordance with industry practice. It was put to Mr Thomson that he had an insufficient basis for his conclusion that the lifts were being maintained since the service records did not disclose the work that had been carried out. Mr Thomson said that these were old lifts getting considerable use and, "if they weren't getting regular and appropriate maintenance the fault records would have been much higher than they were" (Black 129.E). 71 In his report Mr Thomson said that 12 to 18 reported faults per annum were reasonable for this lift. In evidence he put the figure at 12 faults per annum. This figure was appropriate (rather than the range seven to 10) because of the age of the lifts and their use of old technology.

72 At the trial, and on the appeal, varying estimates as to the number of reported faults in the lift over the 12 months prior to the incident were advanced. It was suggested to Mr Thomson that the number may have been as high as 50 reported faults over the period. In submissions at the trial counsel for the appellant put the number of reported faults at 41 or 42 (Black 224.E). The Judge appears to have accepted the submission that the security logbook disclosed some 13 or 14 faults that had not been reported to KONE in the year prior to the incident (Red 38.J). In cross-examination it was put to Mr Thomson that at a rough count there had been somewhere between 40 and 50 reported faults in the operation of the lift over the period. Mr Thomson responded that "if the lift had 40 odd faults, that's too many faults yes" (Black 160.F). In Ms Norton's submission, Mr Thomson's adherence in re-examination to the opinion expressed in his report as to the adequacy of the maintenance of the lift was hard to reconcile with this concession. This submission needs to be assessed by reference to an examination of the matters that were put to Mr Thomson and accepted by him.

73 The evidence of the number of reported faults in the lift came from three sources: (i) the computer records maintained by KONE of service and maintenance visits to the building, which covered the period 30 January 2003 to 7 January 2004 (exhibit 5); (ii) the Schedule of service visits and call-outs, which covered the period 30 January 2003 to 20 July 2004 (exhibit N); and (iii) the security logbook entries, which covered the period 18 November 2002 to 1 May 2003 (exhibit O). 74 Attached to the appellant's written submissions filed with the appeal is a chronology that includes details of six reports of faults recorded in the security logbook which are not recorded in the KONE records: · 25 April lift six could not be found; · 28 April lift six could not be found;

· 18 October lift six was going up and down all night with no one in it; · 2 November lift six was going up and down all night and stopping at level nine; · 28 November security staff had contacted KONE to repair lift six which was "still giving us problems"; · 6 December 2003 there was a terrible vibration in lift six. 75 The entry for 6 December can be discounted for present purposes, since it would seem to be associated with the commutator fault of which Mr Thomson was aware.

76 Mr Thomson was cross-examined about discrepancies between the service calls recorded in exhibit N and the computer records, exhibit 4. His attention was directed to two occasions when a service call recorded in exhibit N did not appear in the computer records. Nothing turns on this since Mr Thomson had access to both sets of records at the time of his report. 77 Mr Thomson was cross-examined on the reports of faults recorded in the security logbooks. He agreed that the records that he had did not show reported faults on 25 and 28 April. The security logbook recorded that on 1 May lift six was going up and down all night. Mr Thomson agreed that he did not have a record of this fault. The KONE records showed that there had been a service call on 1 May but did not record any report of a fault. Mr Thomson agreed he did not have a record of the reported faults recorded in the security logbooks on 18 October and 28 November. He said the entry relating to the report of vibration in the lift on 6 December could possibly have been the same fault as the entries relating to the fault on 7 December, which was a fault that involved a "shut-down" of the lift.

78 As I read the cross-examination Mr Thomson agreed that there were six reports of faults in the operation of the lift over the relevant period contained in the security logbooks, which he had not taken into account at the time he prepared his report. 79 Ms Norton acknowledged, the need for some "give and take" in analysing the records of the number of faults, since it is not always clear whether entries relate to one or more than one event. Relevant to the submission that Mr Thomson's evidence must be taken to be significantly undermined by his acknowledgment that he had been unaware of a number of the faults reported about the lift in the relevant period is the fact he was not cross-examined on the 12 - 22 additional faults that were posited in some of the questions put to him. Mr Thomson's opinion in his report was based on information which included that the lift had been subject to 28 reported faults in a 12 month period. In cross-examination he was made aware of a further six reported faults in the period. This did not cause him to depart from his earlier opinion. It is not clear that the evidence did establish that the lift had been the subject of 40 or more reported faults in the 12 months prior to the incident. Mr Thomson's evidence "if the lift had 40-odd faults, that's too many faults yes" does not appear to be a concession that this lift had been subject to "too many" faults.

80 Mr Thomson said that the approach that he adopted was to analyse the records concerning each fault. He put to one side call-outs in which the difficulty did not relate to the mechanism of the lift (foreign material in the door track) and instances when, following a reported fault, a mechanic had attended at the site and found nothing wrong with the mechanism. Ms Norton submitted that the reasoning in the latter respect was logically flawed: Mr Thomson appeared to have entirely discounted possibilities including that the mechanic was incompetent or that the fault was intermittent. In her submission, as a matter of common sense, people do not report faults unless at the time of the report the lift is not operating properly. A similar submission was put by counsel at the trial. In cross-examination the matter was touched on with Mr Thomson; it was suggested that one reason for a mechanic not finding any fault in a lift which had been reported to have a fault is that the mechanic may be incompetent. Mr Thomson accepted that, "there are incompetent service people around, yes" (BLACK 155.I). The point that counsel went onto develop with Mr Thomson related to the fact that he had relied on the accuracy of the KONE records (BLACK 155.M). He was not invited to deal with the suggestion that his approach of analysing the reported faults and discounting those in which no fault was evident on inspection was flawed.

81 In the alternative to the grounds, which in different ways challenged the Judge's findings based on Mr Thomson's evidence, Ms Norton submitted that her Honour's reasons were an insufficient explanation of her acceptance of his opinion in light of the evidence of the history of this lift. 82 The challenge to the sufficiency of the Judge's reasons had two aspects to it. The first depended on the absence of analysis of the impact of the cross-examination on the assessment of Mr Thomson's evidence in re-examination in which he adhered to his earlier opinion. 83 I will set out that part of her Honour's judgment in which she deals with the expert evidence (RED 31): [27] It emerged that the plaintiff's solicitors had qualified an expert, John Inglis who Mr Thomson said is a lift consultant and is president of the Lift Engineers of Australia. In the absence of any evidence from the plaintiff to suggest otherwise, I consider that the court is entitled to infer that he provided at least an oral report and further that his evidence would not have assisted the plaintiff's case. [28] The third defendant relied upon a decision of the Supreme Court of South Australia in Banco, Packer v Cameron (1989) 54 SASR 246 where Cox J stated that whilst limiting the number of expert witnesses may keep a trial within reasonable bounds it cannot be used by a party as a shield against a justifiable criticism that he is deliberately keeping his less favourable witnesses out of the witness box. [29] This left the plaintiff in the position of having to rely upon Mr Thomson's evidence and the defendants' documents to establish his case in liability. Mr Lidden sought to rely upon some parts of Mr Thomson's evidence whilst at the same time asking the Court to reject other parts on the grounds that to an extent he was being an advocate for the third defendant for example in relation to the reported faults for the year prior to injury which, it was submitted, he tried to explain away. [30] Exhibit N contains details of 27 callout reports in relation to the lift between 12 February 2003 and 7 December 2003, the last before the plaintiff's accident. In addition, the plaintiff relies upon the entries of lift malfunction recorded in the security log book (exhibit O) between 27 March and 8 December 2003 about 15 of which were apparently not reported to the third defendant. Mr Thomson said in cross-examination that he considered that 12 callouts per annum to be standard and that he had discounted those callouts where the fault was not due to any malfunction such as where an object was obstructing the door or where the mechanics were unable to find any fault. [31] Mr Lidden urged the Court to accept only those parts of Mr Thomson's evidence which were contrary to the defendants' interests. I do not consider it proper to approach his evidence in this way. I considered him to be a very fair witness who I am satisfied approached the matter with an open mind and who was prepared to make concessions against the interests of those who called him. [32] Mr Thomson said in his report that he was unable to explain the plaintiff's description of the lift movements and the noises he heard. On page 8 he suggested a possible scenario about which he also gave evidence namely: · The lift lost its position in the shaft. · It is programmed to reset itself by travelling to a terminal floor, either the top or the bottom, in this case the bottom, then resetting itself at the base floor, in this case the ground. · In the heat of the moment, and given that people often become distressed when trapped in lifts, the plaintiff believed that the lift was travelling at a higher speed than normal and also believed that it came to a harsher stop. He did however express surprise that the halt was sufficiently harsh to cause the plaintiff to fall over. [33] One respect of his evidence which is a contra indication of this scenario is plaintiff's evidence that as the lift descended the fall indicated continued to operate whereas Mr Thomson said that if the lift were in reset mode he would not expect there to be any indication of the floors. 84 This was not a case in which there was competing expert evidence, which gave rise to the need for a detailed explanation of the process of reasoning that led to the acceptance of Mr Thomson: cf Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816 per Hayne J at 1835-1836. The only expert evidence concerning the adequacy of the maintenance of the lift and of the service contract was Mr Thomson's evidence.

85 The second basis for the criticism of the sufficiency of the Judge's reasons relates to a suggested inconsistency between her acceptance of Mr Thomson's opinion about the adequacy of the maintenance of the lift but the asserted rejection of his opinion about the cause of the incident. The Judge accepted that the incident occurred in the way that the appellant said it did. The appellant's account in evidence did not depart from the account that he had given in the statement, which was supplied to Mr Thomson. Mr Thomson said in his report that he did not believe that the lift behaved in the way the appellant described in his statement.

86 Her Honour did not address this suggested inconsistency, although it is plain that she was mindful that Mr Thomson was not able to explain the lift's behaviour. As counsel for KONE noted, in the appellant's statement (which formed part of the materials with which Mr Thomson was briefed) the appellant described hearing noises in the elevator shaft like cables snapping. He pleaded in his particulars of negligence that one or more of the cables had snapped. Such a claim was not maintained at the trial. Mr Thomson's rejection of the appellant's account needed to be read in this context. 87 Mr Thomson was not able to explain the erratic behaviour of the lift on this occasion. That circumstance did not require that the Judge reject his opinion concerning the maintenance of the lift and the appropriateness of the service contract. I do not consider that the omission of a fuller explanation of her reasons for accepting Mr Thomson's evidence notwithstanding the suggested inconsistency constituted error.

88 The Judge assessed Mr Thomson as a very fair witness who had approached the matter with an open mind and who was prepared to make concessions against the interests of KONE. Her Honour found that the appellant's solicitors had qualified an expert whom she inferred had at the least supplied them with an oral report. He had not been called and the inference that she drew was that his evidence would not have assisted the appellant's case. This was an inference that it was open to draw. 89 Mr Thomson's opinion, that the lift was adequately maintained, was based on his analysis of its service history and the nature of the reported faults. The documents detailing the service and fault history, including the security logbook entries, are not such as to suggest that acceptance of his opinion was contrary to compelling inferences to be drawn from the documents: Fox v Percy [2003] HCA 22; 214 CLR 118. 90 In my opinion, the grounds, which variously assert error in the failure to find that the accident was due to inadequate maintenance or in the failure to place sufficient weight on the evidence relating to the history of reported faults, are not made good.

91 A number of grounds challenge the judgment with respect to the case against the building respondents (grounds seven, eight, nine and twelve). 92 The appellant complains that the Judge erred in failing to draw "the proper adverse inference" against the respondents by their failure to call Mr Askwith (ground seven). It will be recalled that Mr Askwith, the building manager of the building, had access to the entries recorded by security staff in the logbook and that a number of reported faults in the operation of lift six had not been passed onto KONE.

93 The ground is not clearly stated. It was not developed in the course of the hearing. In the written submissions filed on the appellant's behalf it is explained in this way: In cross-examination of the expert Mr Thomson, it became apparent that not all of the faults which were recorded in the log books were passed onto the third respondent. Instances of failure to inform the 3rd respondent are noted in the annexed chronology and occur at BLACK 156-158. No explanation was forthcoming as to why Mr Askwith failed to pass on this information. It is submitted that the trial judge failed to draw the appropriate inference that such evidence as Mr Askwith could give would not have assisted the case for the first, second and fourth respondents.

94 The Judge did draw an inference that Mr Askwith's evidence would not have assisted the building respondents' case (RED 38.M). Her Honour proceeded on an acceptance that not all faults had been reported to KONE (RED 38.Q-R). What she did not do was draw the further inferences that the appellant's counsel had invited her to draw being those she referred to in paragraph 50 of her reasons (RED 38.D-F): These defendants did not adduce any evidence. The plaintiff in submissions made much of the unexplained absence of witnesses and submitted that the only inference to be drawn from that is that they not wish to pay [sic] have the lift properly serviced and maintained and did not wish to upgrade it.

(Counsel's submission is recorded at BLACK 203 -204). There was no basis for inferring that the building respondents did not wish to pay to have the lift properly serviced or maintained or that they did not wish to upgrade it from the fact that they chose not to call evidence from Mr Askwith. 95 It was necessary for the appellant to establish on the balance of probabilities any fact relevant to the issue of causation. Her Honour found that the appellant had not established that any failure to report all the faults to KONE caused or materially contributed to the appellant's injury (RED 38.R).

96 Grounds eight and twelve complain of the Judge's failure to find a causative link between the failure to upgrade the lifts and the appellant's injury. The Judge dealt with this at RED 39.I-O. She noted that the appellant had not pleaded his case on the basis of the failure to upgrade the lifts, but that submissions had been advanced on his behalf in this respect. The Judge's first finding was that the upgrade recommended by KONE in August 2003 was to take place over the next five years. She went on to find that no causative link had been established between the failure to upgrade lift six and the appellant's injury. In this respect she took into account the observations of McHugh J in Chappel v Hart [1998] HCA 55; 195 CLR 232 at 244-245 [27] and [28]. Ms Norton submitted that her Honour erred in this conclusion. She pointed to Mr Thomson's comment in this report that the upgrade to the controls of the lift would have eliminated the need for it to reset itself. That is so. However, the evidence did not establish that the appellant's injury was the result of the lift resetting itself. Mr Thomson's account of the behaviour of the lift when resetting itself was not consistent with its aberrant behaviour on this occasion. Mr Thomson said that none of the recommendations made by KONE in August 2003 if implemented would have prevented or reduced the risk of the happening of the incident of 7 January 2004 (BLUE 486.G). In my opinion no basis for disturbing her Honour's finding in this respect has been established.

97 Ground nine contends that the Judge erred in finding that the duty of care owed to the appellant by the building respondents was delegable or, in the alternative, that there had been a proper delegation of that duty to KONE. Counsel for the appellant at trial did not submit that the building respondents' duty was non-delegable. Ms Norton did not press ground nine to the extent that it challenges the finding that the duty was delegable. She maintained the balance of the ground; contending that given the incidence of reported faults in this old lift, the Judge erred in finding that the building respondents had discharged their duty by engaging KONE under the terms of the service contract. The service contract made provision for a regime of maintenance that was less rigorous than that which KONE recommended. Ms Norton pointed to Mr Thomson's acknowledgment that KONE, as the designer and maintainer of the equipment, was in the best position to determine what lifts of this age required by service intervals (Black 142.P).

98 The Judge found that the service records maintained by KONE indicated that there had been a considerable amount of maintenance on the lifts. She found that the lift was an old one with a succession of faults to which KONE attended when required. Her Honour took into account the submission made on behalf of the appellant that because of the age of the lifts they needed to be serviced fortnightly. She observed that the only expert evidence was to the effect that the maintenance program was appropriate. 99 In the course of submissions the appellant's many grounds of appeal tended to be distilled to the single contention that this was an evidently "sick lift" with a long history of reported faults, and that it defied logic to find that it had been adequately maintained. The history of repeated faults was said to point inevitably to KONE's failure to take reasonable care in servicing the lift, and to the building respondents' failure to take reasonable steps to secure an appropriate maintenance regime for such an old lift. The difficulty with the challenge is that there was credible expert evidence to the contrary and it was the only evidence. 100 In my opinion none of the grounds challenging the judgment on liability succeed.

101 The trial Judge assessed damages. The assessment is the subject of challenge in grounds 14 to 17. In light of the conclusion to which I have come, it is not necessary to deal with this aspect of the appeal. 102 For these reasons the orders that I propose are: 1. Dismiss the appeal;

2. The appellant is to pay the respondents' costs.

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