Dimitrelos v 14 Martin Place Pty Limited & 3 Ors

Dimitrelos v 14 Martin Place Pty Limited & 3 Ors - [2007] NSWCA 85 - NSWCA 2007 case summary — Zoe

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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."

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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.

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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.

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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

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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.

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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.

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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.

At a glance

Court

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Before

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Judgment (47 paragraphs)

Parties

Cases Cited (9)

Cited By (1)