Dwight v Supljeglav

Judgment

1. The Plaintiff brings proceedings against the Defendant, Milos Supljeglav, alleging an accident, which occurred on 23 June 2010 at the house known as xx Alexandra Drive, Menora, Western Australia, in which it is claimed that she fell due to an unilluminated staircase, occasioning injury. The Defendant owned the premises and its rooms were rented out to students. The Plaintiff's daughter Hayley Dwight [1] had been a student at the Western Australian Academy of Performing Arts [2] and was returning to Sydney after staying at the Defendant's property.
2. On the day before the accident the Plaintiff gave evidence that she and her husband, Dean Dwight [3] had travelled from Sydney to Perth for the purpose of assisting her daughter with her departure back to Sydney on the Indian Pacific on 23 June 2010.

THE ACCIDENT

1. The Plaintiff's evidence was that on arrival in Perth she and her husband were picked up by Ms Dwight and taken to the Defendant's house. The Plaintiff had stayed at that house overnight and stated that she had been up and down the stairs in the afternoon on the day of her arrival. She claimed that no functioning light was present in order to illuminate the stairs. She ascertained this as her daughter had told her that the lights were not working. She stated that when she went upstairs in the evening it was dark, there was minimal lighting although she thought that her daughter might have left the lounge room lighting on as she walked up the stairs.
2. On the morning of the accident, the Plaintiff stated that she got up early between 5 -6am, had a shower and clothed, before taking a carry bag and proceeding to make her exit down the stairs. She claimed that she had turned on the light switch, which was outside the bathroom, but no light came on. In cross-examination, the Plaintiff conceded that she could not recall turning on the lights for the main stairwell in light of the advice given. She proceeded down the stairs in darkness with the bag in her right hand. As she got to the end of the banister she thought that she was at the end of the staircase. She stepped out and her foot was met by nothing but air. She let go of the bag and fell down onto the floor.
3. The Plaintiff denied that the accident happened because she misjudged where to place her foot. [4] When this was put to her she stated: - "No, no, the light- if I could have turned the lights on and the lights were working, which they weren't and I couldn't turn the lights on, I wouldn't have fallen." [5]
4. The Plaintiff conceded that the stairs were not well lit [6] but stated that she had to descend the stairs in order to get out of the house. [7]
5. Mr Dwight gave evidence that he awoke first, went out of the front door of the house, pulled the door and went outside. Although the front door was closed, it was not locked. He did not hear anything. He claimed that, when he came back into the house after going to his car, he pushed the door inwards and saw the Plaintiff on the floor in front of him and towards the left. At that time there was enough light for him to see her.

What Time did the Accident Occur?

1. The Plaintiff denied that the accident happened during daylight hours between 8am and 11am, and denied that she was carrying a box down the stairs. She conceded that there was a frosted window through the front door and a streetlight across the road. When it was put to her that she was assisted in her vision by the presence of natural light she stated: - "Well, I fell when it was dark. So what natural light there was, was very dark natural light. It wasn't, light as if it were sunny…" [8]
2. Mr Dwight gave evidence in relation to the stairs was as follows: - "There was no lights on the stairs that were working so Hayley had advised us, I don't actually remember when, whether it was the day before or the night, exactly when, but they weren't working. I never tried them because I was obviously under the impression of what I was told, so therefore I just went down. I held onto the banister and missed the last step, just stumbled. I didn't fall or anything, it was fine." [9]
3. Mr Dwight was adamant that the accident could not have occurred later in the morning than between 7 and 9am because he had to have his daughter's car on the train between 7 and 7.30am.
4. Mr Ben Kirkham [10] was another tenant in the Defendant's property. He gave evidence that he recalled the incident involving the Plaintiff. He stated that he heard a noise. At that point he was in his bedroom. He walked to the top of the stairs and asked the Plaintiff if she was okay by yelling down. He was asked whether he could see her at that point and he stated that he could not. He recalled that the incident occurred in the morning, perhaps between 8am and 11am, during daylight. It was put to him in cross-examination as to whether it could have been at 5.30am. He was adamant that it was later, because he was not awake at that time. He conceded, however, that his calculation of the time between 8 and 11am was made on the basis that he would have been asleep before then.
5. The Plaintiff denied that she saw or spoke with Mr Kirkham in the house during her stay.
6. Mr Dwight denied, to his knowledge, ever meeting Mr Kirkham and was definite that he did not appear at any stage when he and his wife were at the house between 22 to 23 June 2010.
7. Ms Dwight gave evidence that Mr Kirkham returned to the house on 15 June 2010 [11] having left in the second week in February 2010 after having lost his job in Perth. The return date accords with his Mr Kirkham's evidence although in Exhibit E at [12] Mr Kirkham stated that he left Perth around 11 March 2014. Ms Dwight stated however that she did not see Mr Kirkham whilst her parents were visiting her. To use her words: "Ben sort of flitted in and out. You never really knew where he was." [12]
8. Mr Kirkham stated that he had seen the Plaintiff at the premises during the week that they were there, about four days earlier. When it was put to him that Mr and Mrs Dwight had arrived the previous day, he did not disagree with that. He conceded that he could have been wrong, although in his assessment it was roughly four days. In cross-examination he conceded that it might not have been four days; it might have been less than 24 hours. Nevertheless he recalled seeing the Plaintiff, both in Ms Dwight's bedroom, in the lounge room and downstairs. He thought this had occurred the day before the accident.
9. Mr Kirkham asserted that the Plaintiff did not stay at the house in the period before the accident but rather had been staying elsewhere. [13] He further gave evidence that he understood that the Plaintiff was carrying a box downstairs at the time of the accident. In evidence he stated that this understanding was derived from a conversation that he had had with the Plaintiff in which she told him that she was carrying a box. [14] However, in his statement of 7 August 2013, [15] he stated that he "came out to see what happened" and the Plaintiff "standing and picking up a box." The Plaintiff denied carrying a box. [16] Mr Dwight confirmed that the only item on the floor near where the Plaintiff fell was a red small carry bag. [17] Ms Dwight did not see a box, just a red carry on suitcase. [18]
10. In the circumstances, while I am satisfied that Mr Kirkham had returned to the house at the time of the accident, I do not accept that his version of events as accurate. His evidence before me varied significantly not only with the Plaintiff's case but also with statements given by him, which were Exhibits D and E in the proceedings. Specifically I do not accept that the accident occurred between 8am and 11am as Mr Kirkham stated. His evidence in this regard was based on when he claims he awoke. The evidence of the Plaintiff, Mr Dwight and Hayley Dwight was that they had a specific time slot to load Ms Dwight's car onto the train before boarding that train. [19]
11. I am further satisfied that the accident occurred around 5.30am when there was minimal natural light. The evidence of Ms Dwight was such light coming through the frosted front door was insufficient to make out the stairs [20] . To use her words 'it was pretty dark" [21] and "pretty pitch black." [22] These observations were made after the accident when Ms Dwight awoke came down the stairs and the Plaintiff was already in the lounge room. [23] Mr Kirkham conceded that at 5.30 in the morning there would not have been any light at the bottom of the stairs. [24]

What were the Arrangements with the Landlord?

1. Ms Dwight was attending the Academy from 2008 to 2010 to complete an Advanced Diploma in Performing Arts. At the end of 2009, she was able to arrange to take a room at the premises from a friend named Jess, as a tenant of the subject property.
2. Ms Dwight gave evidence that she was told that she had to pay $100.00 per week into a bank account and was given the details by Mr Kirkham. She stated that she understood Ben Kirkham was the 'go-to person' "if you ever wanted to live in the house." He had apparently lived there for as long as she knew and was given a piece of paper by him, which was Exhibit C in the proceedings. That paper identified the bank account details of the owner, his name and the sum of money to be deposited. Mr Torrington, who appeared on behalf of the Defendant, indicated that the slip came with deposit slips for the bank account. However, these were not tendered in the proceedings. The Plaintiff's evidence was that she did not meet the Defendant landlord. The Defendant confirmed this.
3. In February 2010, Ms Dwight formally moved into her room upstairs next door to her roommate 'Jackie.' Ms Dwight remained in the property until the day of the accident. A copy of the building layout can be found at Tab 19, P 252 - 3 of Exhibit 'B'. The stairs leading from the bottom floor to a landing at the top can be seen in Tab 18, P 251 of Exhibit 'B'. There were in fact two flights of stairs and after the landing on the left, there were another four steps to the hallway, then a right turn and at the end of the house was Ms Dwight's bedroom. [25] Ms Dwight stated that there were three sets of lights near the stairs: - 1. At the bottom near the long flight of stairs; 2. At the top of the long flight of stairs above the platform; 3. A light outside the bathrooms on the top floor. 4. These are marked in Tab 19, Exhibit 'B'

Were the Lights Working ?

1. Ms Dwight stated that when she arrived in February, the downstairs light in the area just inside of the front door, which is at the bottom of the long flight of stairs, was not working. The light in the landing-platform at the top of the long flight of stairs was working. However, she stated that she would turn on the light near the bathroom and that it would provide some illumination in the immediate vicinity. She further stated that the lights at the bottom of the stairs were not operating, so it was dark when you got to the bottom, unless there was a roommate that turned on another light. The other light was the kitchen light, which shone through the door just to the entrance. [26]
2. Coming down the long stairs on the left side, there was a banister, which stopped three steps before the ground level. In that area, Ms Dwight stated that the area was pretty dark and there were no functioning light illuminating it. She stated that to try to assist herself in descent from time to time she would hold on to the wall instead of the banister, so she would walk down with her right hand along the wall and curve around because she was always going into the kitchen or lounge room. She stated that if she was going down at night she would use her mobile phone, turn it on and it would shine it like a light, but it was not a torch. [27]
3. Ms Dwight stated that she recalled telling Mr Kirkham when coming home from a performance on an earlier occasion that it was very dark when opening the door and he said, "Yes, the light doesn't work". Ms Dwight replied "Well that's annoying because it's really dark when we come home at night." Ms Dwight stated that she understood that Mr Kirkham knew about it, but he did not seem fussed. She stated, "He wasn't worried. He just said, 'Yeah, it will get fixed one day,' or he just wasn't worried. He sort of ignored my comment." [28] Ms Dwight also stated that she probably also told Mr Kirkham in passing about getting the lobby light fixed in February. [29]
4. Ms Dwight gave evidence that on 22 March 2010 there was a storm following which the three aforementioned lights were claimed to be not working. Ms Dwight stated: - "On the day and night of the storm, there was water dripping from the one at the top of the long flight of stairs, the light had water damage around it and it was sort of dripping water. "Like my room floor was all wet and sort of upstairs was all a little bit damp." [30]
5. Ms Dwight claimed that she took photographs of the room and sent them to her mother. She stated that the photos depicted her room where she had pulled blankets off and had towels on the ground. She did not take photos of the window because her roommate Jackie had already cleaned it up.
6. The photos were not produced to the court, it being unclear if they were still available. [31] Ms Dwight said that she had lost contact with her roommate Jackie and did not know her whereabouts. [32]
7. Ms Dwight stated that two days after, she had come home with her friend Jackie, walked upstairs and noticed a "strange man" near the bathroom. Ms Dwight replied, "Hello" and asked what the stranger was doing in the house. He replied that he was just fixing the windows. Ms Dwight claimed that the man had a foreign accent, grey hair, workman clothes and a tee shirt. She said, ""Is it possible to fix the light at the top of the flight of stairs? It's dripping water" and then said, "The one above as well", a comment which I interpreted as referring to the light outside the bathroom. She stated that she could not remember what the man said but that he did mumble and sort of nod his head. Ms Dwight stated that she did not mention the light at the bottom of the stairs but did mention, "Our lights were not working." [33]
8. The incident involving the repair to the window was challenged in cross-examination but Ms Dwight was sure the storm broke the window. Ms Dwight's gave evidence that her diary entry from 22 March states, a storm and no power. [34]
9. Ms Dwight stated that she rang Mr Kirkham afterwards because she assumed he would know who the man was having previously lived there. [35] She recounted her conversation, stating that she asked Mr Kirkham "who is the strange man who looks sort of like this" to which Ben Kirkham replied, "it was the owner's father and he comes around to fix the house." Hayley then said "okay. Also, the lights are still out. Do you reckon he would fix them or did I need to call someone to fix them?" Mr Kirkham is said to have responded that he would look after it. [36]
10. Ms Dwight was asked questions at TP 68. 15 as follows- Q. When you rang Ben - what, was he in Sydney when you rang him? A. Yes. I assumed he was in Sydney because that's where I last heard he was, so yes, I rang Ben as if he was in Sydney. Q. When Ben came back on the 15th and a few days before the accident occurred, did you see anything happen in relation to the lights at this stage? A. No, nothing. Q. Do you believe that the lights were not functioning as at the date your mother fell? A. Yes. They were not working. Q. By, "the lights" you mean the three lights that we referred - A. The three lights, yeah; all of them in the roof, the ones around the stairs. Q. Could you reach the lights to change the light bulb yourself? A. No. They were really tall. The roof was really high. I would have definitely needed a ladder.
11. Mr Torrington for the Defendant at TP 78. 9 questioned Ms Dwight as follows: - Q. You said on a number of occasions the lights weren't working. Can I suggest to you, when you did make a complaint to Ben, there was action done to get the lights working? A. I can't guarantee there was, no, as I didn't hear back from Ben that anything like, there was an electrician coming. Q. And was it the case that you didn't, so to speak, test the lights to find out one way the other, you made complaints to Ben. Is that a fair statement? A. I did test the ones upstairs. Q. But not the lower two lights. A. No HIS HONOUR: Sorry, the lower two? TORRINGTON. Q. Well, how many - the lower one? A. The one, yeah, just the one. HIS HONOUR: Sorry, I'm confused. Can you say that again? I tested the ones upstairs, because they were near my light switch, like it was all in my - close - -- Q. When did you test those? A. - - Q. When did you do that? A. I would test them probably once every two weeks, just flick them on and flick them off, but nothing happened. TORRINGTON Q. See, what I want to suggest to you is that contrary to that the lights when the complaint was made were fixed up. Do you agree? A. I don't understand, sorry. Q. You're saying the lights weren't repaired, or when the complaint was made, they weren't repaired. I'm suggesting that if you made a complaint, they were in fact repaired. A. No, not that I know of, no. HIS HONOUR: Sorry, when are we talking about Mr Torrington? TORRINGTON: At the time of the complaint. Q. At any time you made the complaint, action was taken? A. No, nothing. I would complain and then two days later, try and flick them on and they wouldn't come on. Q. So the last time you tested these lights was about a week before, and that was only the upstairs one? A. Only the upstairs one. Q. And I think the evidence was that the lower, the downstairs one, a month before. Is that correct? A. Yes. I was told by Ben that the downstairs never worked and none of us - I don't think anyone ever tried. It was just known that it didn't work. Q. So did you in fact ever try it? A. Yeah, I did.
12. In his evidence Ben Kirkham stated that he lived at the subject premises for some time. [37] The Defendant asserted that it had been a period of eight years. [38] As noted at [14] of these reasons Mr Kirkham returned to the property on 15 June 2010 and he was previously absent from it at least since 11 March 2010.
13. In chief, Mr Kirkham was asked if there were any lights near the stairs and the foyer area. He said, " Yeah there's one right at the front and there is one switch for it. There was another light at the landing at the top and there were two switches for it, one at the bottom of the stairs and one outside the bathroom upstairs." He stated that there was another light near the bathroom and there was one light, which was outside the bathroom. [39] He stated that in respect of the lights outside the bathroom, the landing and downstairs, he had previously changed the lights. [40]
14. Then when asked whether he was able to be specific as to which one was or was not working, he replied, "No". When asked if one had not been working what would have occurred: - "Changing the light globe" [41] He stated that if he were there he would have done it. [42]
15. In cross-examination, Mr Kirkham conceded that he had made a statement to NRMA dated 10 April 2014, which was tendered as Exhibit E in the proceedings. In that statement Mr Kirkham said: - "10. I also continued to reside at the property located at xx Alexandra Drive, Menora 11. At the time of the storm on 22 March 2010, I was temporarily residing between NSW and Victoria for about 3 months and only heard about it on the news. 12. I had left Perth around 11 March 2010 and returned mid June 2010. 13. I am not aware of what damage, if any, was sustained to the house as a result of the storm. 14. With regard to the lobby light not working since Hayley Dwight moved in, this is correct due to me not having bothered to change the globe. As far as I am aware this fitting still works. 15. I don't recall if Hayley ever complained to me about the lobby light not working. 16. I am not aware of water having dripped from the lights above the stairs or outside the bathroom. 17. Similarly, I do not recall Hayley ever complaining to me about there being no light on the stairs, however, there were occasions when this light had been blown and as it difficult to replace there have been times when the light has not been replaced for a period."
16. In chief Mr Kirkham stated that in respect of minor repairs such as light globes the position was "Personal change. So by myself or others of the house." [43] In cross-examination he conceded that it was his job to change the light bulb himself. [44] He further conceded that it was quite possible that on the morning of the accident the lobby light was not working but stated that the light at the landing may also not have been working. [45]
17. He further conceded that there was a light outside the bathroom up another set of stairs and along a hallway. He stated that, that light was where there was not a complete closed wall over the stairwell and the light could go over but he has no recollection as to how far that light goes. [46]
18. It was not put to Mr Kirkham that the light outside the bathroom was not working on the day of the accident. However, in re-examination he stated that the "three lights would never be out at the same time because he couldn't live without a bit of light in the house." [47]
19. I accept the Plaintiff's evidence to the effect that she attempted to activate the light outside the bathroom however it was not working at the time of the accident. Ms Dwight also gave evidence that she attempted to activate the two upstairs light switches probably every two weeks but nothing happened. [48] She stated that the last time she tested the upstairs lights was a week before the accident. [49]
20. On the evidence, I am also satisfied that the downstairs lobby light was not working at the time of the Plaintiff's accident. This is acknowledged by Mr Kirkham in his statement to the insurer [50] Ms Dwight stated that she last tested the lobby light a month before the accident. [51] Mr Kirkham returned to the premises the week before the accident and there is no evidence that he or anyone else changed any bulbs at any time following the storm.
21. So far as the landing light is concerned, the evidence of Ms Dwight was that there was a storm on 22 March 2010, and the water was dripping from the top of the long flight of stairs and the light had water damage around it. Ms Dwight's evidence as to previous complaints to Mr Kirkham about that light is referred to in [24] of these reasons.
22. In considering this evidence and the phone call with Mr Kirkham described earlier in these reasons it is not at all clear as to what his response meant. At the time, Mr Kirkham had left Perth and there was so far as I am aware no immediate prospect of his returning to the house. Ms Dwight's request was a fairly broad one, which could have encompassed her taking action to call someone to fix the lights. Mr Kirkham's response could be interpreted as him taking the responsibility to get someone to fix the lights. Indeed this appears to have been the Plaintiff's assumption [52]
23. The Plaintiff gave evidence that Ms Dwight had told her that a storm had occurred on the 22 March 2010 in Perth and that this was common knowledge and broadcasted on the news. She stated that her daughter, Hayley, had advised her that the bathroom window had been broken and that the bedroom had flooded because of water leaking through the roof. [53]
24. Mr Kirkham gave evidence that he did not recall Hayley ever complaining about there being no lights on the stairs but he conceded that he was not saying that she did not complain, just that he could not specifically recall. [54] He acknowledged, that on the day of the accident, the light on the lobby and the light on the stairs were quite possibly not working. [55] It was not put to him as to whether he contacted the Defendant to inform him of what occurred and to get someone to come and fix the lights.
25. Mr Kirkham nevertheless did concede that from news reports and contact from friends he was aware of a big storm that had knocked out a lot of electricity out in Perth. He was not aware however that it had knocked out the power at the Defendant's property. [56]
26. The Defendant's evidence was that, as far as he was aware, as at June 2010 the lights were operational and he received no complaints about the light globes not working or that the lights were out at around June 2010. [57] When asked what he would have done if informed, he stated: - "I would have certainly arranged my father to go have a look to ascertain whether he could attend to it, if not we would have arranged for my brother, who is an electrician, to attend to what ever was required and if he was not able to then obviously a tradesperson or a relevantly qualified person." [58]
27. The following emerged during cross-examination of the Defendant: - 1. He did not specifically recall a large storm on 22 March 2010; 2. The Defendant stated that he did not recall damage to the bathroom window; 3. He did not recall any repairs being done to the house in March 2010; 4. He would pay for any repairs and he had no knowledge that any were done to the property; 5. If the bathroom window needed repairing, it would be his father who would ascertain what was required and he would get a professional person to do it; 6. The reason his father would go was that he was retired and was more easily available; 7. The Defendant's father could not generally change light bulbs as this was something that the tenants would generally do; 8. He accepted that, generally speaking, the maintenance issues of the tenants amongst other things would come to him from Ben Kirkham primarily but not always; 9. He accepted that if a tenant did not know his number or had a problem with something, they would go to Mr Kirkham; and 10. The Defendant acknowledged that he went to the property from time to time for inspections.
28. The Defendant stated that he had never met Mrs Dwight (presumably meant to refer to Ms Hayley Dwight) and as far as he knew, he thought she had to speak to Mr Kirkham. [59]
29. Ms Dwight was a reasonably impressive witness and I accept her evidence. I found Mr Kirkham confusing and unreliable in his recollection as to what had occurred. I accept Ms Dwight's account as to the occurrence of the storm and its impact as described above. I further accept based on her evidence that she saw the Defendant's father at the premises shortly after the storm and raised with him changing the light at the top of the flight of stairs. The Defendant's father was not called to give evidence even though the Defendant said he was available. [60] I am also satisfied that Ms Dwight raised the issue with Mr Kirkham as described in her evidence and that no action was taken to replace the lights by the time of the Plaintiff's accident. I am supported in this finding by the evidence as to the difficulty in changing the lights, Mr Kirkham's absence from the property between the time of the storm and a week before the accident, his concessions as to periods when the light bulbs remained unchanged, the Defendant's account of lack of any knowledge and Ms Dwight's evidence described above.
30. In all, I am satisfied that the three lights over the landing, outside the bathroom and in the lobby were not operational at the time of the accident and had been so at least since 22 March 2010. The lobby light was probably not operational since the time Ms Dwight moved in February 2010.

DUTY OF CARE

1. The Plaintiff submits that the common law duty of care owed by a landlord requires the court to follow the general principles in relation to duty of care set out in s 5B Civil Liability Act 2002 (WA) informed by statutory provisions referred to later in these reasons.
2. In Department of Housing and Works v Smith (no.2) [61] Pullin JA with Newnes JA concurring held that it was unnecessary to decide whether the Civil Liability Act 2002 (WA) or the Occupiers Liability Act 1985 (WA) reflect, supplant or modify the common law. Pullin JA stated: - "[11] The High Court in Adeels did not expressly consider the question whether in New South Wales the common law relating to duty of care, standard of care or causation continued to apply or whether the relevant Civil Liability Act provisions modified the common law or entirely supplanted the common law. However, the impression I gain from the reasons is that the High Court regarded the relevant provisions of the New South Wales Act as supplanting the common law. [12] The trial judge's view that s 5B in the CLA is "exclusionary" might be understood to mean that the common law continues to operate in Western Australia in relation to duty of care and standard of care (and causation), and that once common law principles determine liability then s 5B of the CLA is applied and if the factors referred to in s 5B(1) and (2) are met the person will then be "not liable". If, on the other hand, s 5B supplants the common law, then it will mean that the courts cannot make incremental changes to the law to meet new circumstances. Instead, only Parliament will be able to make changes. [13] No submissions were made by the parties about the trial judge's opinion and for the reason given below I will not express any concluded views about the subject. ……."
3. Buss JA differed in his response stating at [71]-[74]: - "[71] In Sheehan v State Rail Authority [2009] NSWCA 261, Beazley JA (Giles JA agreeing) observed that the New South Wales Act does not define when a duty of care is owed at [55]. Her Honour then said: [55] … That determination remains subject to the common law. Section 5B deals with breach. [72] Similarly, in Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 53 MVR 502; 168 LGERA 357 ; [2009] NSWCA 263, Campbell JA (McColl JA agreeing and Sackville AJA agreeing generally) examined and applied s 5B of the New South Wales Act in the context of the legal test for breach of duty, and not in the context of whether a duty of care existed at [172]-[177]. This approach was also adopted by McColl JA (Ipp JA agreeing) in Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 at [89]-[90], [118]-[119], [125]-[140]. [73] In Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 ; 260 ALR 628 ; [2009] HCA 48 (Adeels), the High Court held, relevantly, that the appellant, who carried on a reception and restaurant business at premises that were licensed under the Liquor Act 1982 (NSW), owed each of the respondents, who were patrons of the business, a duty to take reasonable care to prevent injury to them from the violent, quarrelsome or disorderly conduct of other persons on the premises. [74] The joint reasons of French CJ, Gummow, Hayne, Heydon and Crennan JJ do not give the impression that s 5B of the New South Wales Act has modified or supplanted the common law principles for determining whether a duty of care exists or not. This is readily apparent from the following. First, their Honours said that although ss 5B (and 5C) of the New South Wales Act appears beneath the heading "Duty of care", that heading is apt to mislead: at [13]. Second, their Honours said that both of those provisions are evidently directed to questions of breach of duty: at [13]. Third, their Honours said that ss 5B, 5C, 5D and 5E are central to questions of breach of duty and causation: at [15]. Fourth, their Honours addressed the question of whether a duty of care was owed, in the case before them, solely by reference to the common law and the Liquor Act…"
4. The leading authority on the duty of care owed by a landlord is Jones v Bartlett. [62] In that case, Gummow and Hayne JJ said at [171]:- "[171]........Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely habitation as a domestic residence.
5. Further, at [173]-[174] their Honours stated:- "[173] Premises will not be reasonably fit for the purposes for which they are let where the ordinary use of the premises for that purpose would, as a matter of reasonable foreseeability, cause injury. The duty requires a landlord not to let premises that suffer defects which the landlord knows or ought to know make the premises unsafe for the use to which they are to be put. The duty with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. This does not amount to a proposition that the ordinary use of the premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks. [174] What constitutes the taking of reasonable steps will, as Dawson J noted in Northern Sandblasting, depend on all the circumstances of the case. What is reasonable for premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor. Moreover, the reasonableness of steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched,114 the obligations the parties allocated inter se and any specification of limited purposes to which the premises be put. It will also be affected by the terms of any applicable statutes, such as residential tenancy statutes. In some jurisdictions, there may be statutory requirements which supplant any common law duty or which impose a higher duty than the common law."
6. The Defendant has not contended that the Plaintiff was not owed a duty of care in the circumstances. The precise content of that duty was not the subject of submissions.
7. I accept that the duty of care that exists in relation to a landlord remains that established by common law principles as set out in Jones v Bartlett as cited at [55] above. In my view s 5B of the Civil Liability Act 2002 (WA) deals with breach. Nevertheless regard should be had to ss 5 and 9 of the Occupier's Liability Act 1985 (WA), which read as follows:- "5. Duty of care of occupier (1) Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger. … (4) Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to - (a) the gravity and likelihood of the probable injury; (b) the circumstances of the entry onto the premises; (c) the nature of the premises; (d) the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises; (e) the age of the person entering the premises; (f) the ability of the person entering the premises to appreciate the danger; and (g) the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person. 9. Duty of care of landlord (1) Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it shall be the duty of the landlord to show towards any persons who may from time to time be on the premises the same care in respect of dangers arising from any failure on his part in carrying out his responsibilities of maintenance and repair of the premises as is required under this Act to be shown by an occupier of premises towards persons entering on those premises. (2) ………. (3) Nothing in this section shall relieve a landlord of any duty which he is under apart from this section. (4) This section applies to tenancies created before the commencement of this Act as well as to tenancies created after its commencement."
8. Regard should also be had to the provisions of s 42 of the Residential Tenancies Act 1987 (WA) which impose a duty on any landlord pursuant to a lease (written or otherwise) in the following terms:- "42. Lessor's responsibility for cleanliness and repairs (1) In this section - premises includes fixtures and chattels provided with the premises, but does not include - (a) any fixture or chattel disclosed by the lessor as not functioning before the agreement was entered into; or (b) any other fixture or chattel that the tenant could not reasonably have expected to be functioning at the time the agreement was entered into. (2) It is a term of every residential tenancy agreement that the lessor - (a) …………; and (b) must maintain the premises in a reasonable state of repair having regard to its age and character and must conduct any repairs within a reasonable period after the need for the repair arises; and (c) …………."
9. In the present case, the tenants on the Defendant's property effectively rented rooms and tenants had joint use of the remainder of the house with "other roommates." The rent paid for the use of the room by Ms Dwight was $100.00 per week. This was not a case where a tenant had sole exclusive possession of the property. The tenancies involved casual, periodic use by a changing population of students (and their visitors), some such as Ms Dwight coming from interstate. It seems reasonable in the circumstances that the Defendant would have anticipated that tenants might bring in visitors to the property who might not have as much familiarity with the property and its condition. The arrangements were also such that the Defendant carried out maintenance duties using his father; including fixing leaking taps, lawn mowing and otherwise ascertaining what needed to be done. It was acknowledged that the Defendant did from time to time inspect the premises as described in [73] below.
10. Two sets of light bulbs were difficult to replace; in particular, that the light affixed to the ceiling above the landing was some 3.1 metres from the floor and, from the bottom of the stairway, was 2.9 metres from the floor.
11. In the circumstances I am satisfied that the use of the staircase by Ms Dwight and her parents was authorised and necessary in order to traverse the house and to make their exit on the occasion in question. I am also satisfied, bearing in mind the statutory provisions and cases referred to, the Defendant did have a duty to take reasonable care to avoid a foreseeable risk of injury to the Plaintiff. In my view the landlord's duty bears closer analogy with an occupier of common property in a strata plan than one where the property is leased granting a tenant exclusive occupancy.

BREACH OF DUTY

1. S 5B(1) of the Civil Liability Act 2002 (WA), requires three considerations:- 1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and 2. the risk was not insignificant; and 3. in the circumstances, a reasonable person in the person's position would have taken those precautions.

Breach-The Risk Was Foreseeable

1. It is clear that the Defendant did know that there would be difficulty in walking down the subject stairs in the dark. When he was asked that, if the railing were not there, then there would be a risk that a person descending the stairs could lose their balance as they would have nothing to hold on to that would prevent them from falling, the Defendant responded by stating "well, there is a wall on the side of the stairs." Subsequently, the following question was put to him at TP 123.50-124.3:- "Q. If you are in the dark, you are coming down the stairs and using the railing to provide security, there is no way that you can hold on to a corner of a wall, I suggest to you. Well, if you can't see the wall, then no."
2. At P194 of Exhibit B, being the report prepared by Chong Ngai Chew on behalf of Westralian Technical Consultants Pty Limited, dated 4 March 2014, it is stated as follows:- "(115)…The night-time illuminance measurements I performed at the bottom of the subject staircase with the three abovementioned lamps switched-off, yielded a zero lux reading. In my opinion, zero lux illuminance would not have provided a lighting condition which was conducive to the safe movement of people on the subject staircase." … (120) The handrail on the subject staircase does not extend over the two bottom steps. Omission of the hand rail over those two steps would place a person descending those two steps at risk of falling down in the event he/she starts to fall on either of those two steps, for example, due to slipping on a step or misjudging a step."
3. In my view the risk was foreseeable in the circumstances.

Breach-The Risk Was Not Insignificant

1. The risk posed combination of the banister not covering the full length of the stairs and an unilluminated staircase was one which should have been obvious to a reasonable occupier in the position of the Defendant. In Laresu Pty Limited v Clark [63] Macfarlane JA (with whom Tobias JA and Handley AJA agreed) stated:- "[48] ……. As stated by Heydon JA (as he then was) in Wilkinson v Law Courts Ltd [2001] NSWCA 196 "[s]tairs are inherently, but obviously, dangerous" (at [32]). Where, as here, the stairs are internal ones that are not lit at times that it should be expected that persons may use them (see [21] - [22] above), the risk of someone missing a step in the dark and falling must in my view be regarded as a "not insignificant" one. The danger resulting from the absence of lighting of steps was recognised by this Court in Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 (see [25]) and Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 (see [129], [133]). [49] Whilst the danger of falling on the steps was one that should have been obvious to someone, such as Mr Clark, returning from the toilet when the relevant area was unlit, it was a danger with which Mr Clark had only limited means of dealing, that is, by shuffling across the landing in the manner he did or perhaps by following the wall around with his hands. Further Mr Clark 's evidence did not suggest that when he ascended the stairs, having then enough light to locate the handrail at the bottom of the flight of stairs, he appreciated, or should reasonably have appreciated, the extent of the difficulty he would have in seeing the handrail at the top of the flight of stairs when he entered the landing from the corridor door on his return. This is especially so given that he had apparently not previously visited the bathroom when the area was unlit (see [6] above). [50] The danger presented by the unlit stairs was one that should have been obvious to a reasonable occupier in the position of the Owner. The fact that the danger of the unlit stairs would have been obvious to persons returning from the toilet did not in my view absolve the Owner from taking precautions because users of the unlit stairs could not, for the reasons just given, reasonably avoid the danger facing them (see Francis v Lewis [2003] NSWCA 152 at [53] - [54])."
2. The fact that Ms Dwight had ascended the stairs with some illumination on the previous evening would not have given her an appreciation of the difficulties of descending the stairs without any illumination on the morning in question. In my view, there was not an insignificant risk that a person, in Ms Dwight's position, even being careful, might miss a step and fall as she did.

Breach- In the Circumstances, would a Reasonable Person in the Person's Position have taken those Precautions

1. In this respect, I am required by s 5B(2) of the Civil Liability Act 2002 (WA) to consider a number of factors. In doing so, I take account of the fact that there was no evidence of previous cases of harm if care were not taken (although I do note that Mr Dwight himself stumbled as he came down the stairs earlier in the morning in question). This may be a product of the fact bedrooms of the tenants that were upstairs and visitors might be less likely to use the stairs in darkness. However the evidence also was that the lobby light had been not operational since Ms Dwight arrived in February 2010 and the light over the landing had been not operational since 22 March 2010. In my view the probability of harm occurring was elevated in such circumstances. Moreover, there was a real prospect that if an accident did occur as a result of someone descending and missing a step, then the person would fall down a number of steps with the substantial risk of serious injury (s 5B(2(b)). The burden of taking precautions to avoid the risk (s 5B(2)(c)) was not great. The Defendant's system of inspection did not include checking light bulbs itself but rather relying on advice form Mr Kirkham who was relevantly absent as described earlier. [64] Even accepting that the lights were placed at a significant height, if this did require engaging professional assistance, it could not be regarded as a significant cost.

Social Utility

1. Finally, s 5B(2)(d) requires consideration of the social utility of the activity which creates the risk of harm. In this respect, Macfarlan JA stated in Laresu Pty Limited v Clark at [58]:- "[58] Section 5B(2)(d) requires consideration of the "social utility of the activity that creates the risk of harm" (see [40] above). The only possible social utility of not lighting the stairs would be the saving of the electricity required to power a light. Whilst economy in the use of electricity is to be encouraged, any saving of this nature is not of significance in the present context, involving, as it did, the risk of serious injury ……..."
2. I accept that a reasonable person in the position of the Defendant was required to have a system of inspection and maintenance, which included the changing of light bulbs in common areas. Even bearing in mind the views of Buss JA in Department of Housing and Works v Smith No 2 at [87] to which the Defendant has drawn my attention, I am not dissuaded in this view.

Delegation of Duty

1. The Plaintiff contends that the Defendant did not check the home to see if everything was being done in terms of maintenance, including that light bulbs were being changed. [65] The Defendant's evidence was that he did not have any written agreement with the tenants and that any contact that he had was generally went through Ben Kirkham. [66] At TP 120.39-121.45 this exchange takes place. "Q. He [Mr Kirkham]was the person through whom tenants maintenance issues, amongst other things, would be conveyed to you? A. Not always, but primarily so, yes. Q. And so if a tenant who didn't know your number, may have your bank account details, but didn't know your telephone number or something and had a problem then they would go to Ben Kirkham? A. Yes. Q. So you didn't go and inspect the property to check the light bulbs were free, did you? A. What period are we talking about? Q. 2010. A. Did I go to the property in 2010 to inspect light bulbs? Q. Yes. A. No. Q. And so you would rely on somebody else to make sure that one of the maintenance issues that there were lights around so people could see n the common area, you would rely on somebody else, would you? A. Generally, but of course I went to the property on occasions. So you know I obviously had the ability to see whether the light was on or not, but generally, yes. Q. You understood that you had a duty to provide a premises that was reasonably safe. You understood that, didn't you? A. Yes. Q. And that may need from time to time either you or somebody else having an inspection> A. Yes. Q. You understood that? A. Yes. Q. So that if a lot of light bulbs are out that you would discover that and do something about it? A. Again, I'm not sure that light globes are entirely my problem. Q. You hadn't had an agreement with anybody in a written agreement. Is that correct? A. No that, but there certainly is an arrangement in place. Q. Okay, what was the arrangement? Whose province was it for the changing of the light bulbs if they were defective? A. The tenants. Q. Did you convey that to the tenants? A. Well, certainly, initially, yes, because when first leased out the property there were rental agreements in place, and then subsequent to that Mr Kirkham, from memory, has been in occupation of the property for about eight years and over that time he has generally been the one to convey to other tenants that he is the one responsible, to ensure that anything is reported to me so that I can action whatever is required."
2. It appears that in practice, responsibility in relation to changing light bulbs rested with the tenants although the Defendant conceded that he went to the property on occasions and had the ability to see whether the light was on or not. [67] However, he stated that he did not go to the property in 2010 to inspect light bulbs. [68] This responsibility appeared to be accepted by Mr Kirkham and was further implicit in Ms Dwight's request to Mr Kirkham in the phone call referred to in her evidence.
3. The Plaintiff in his submissions drew attention to the fact that the Defendant had effectively delegated his duties in relation to the light bulbs to Mr Kirkham. At [27]-[29] of the Plaintiff's submissions, the case was put as follows:- "(27) In the current case, the landlord has not notified the tenant and has not put in place any effective system for the maintenance of the house. In particular, the Defendant was of the view that the changing of light bulbs was a matter for the tenants, albeit that it was accepted that the lights in the hallway, at the bottom of the stairs and in the landing required ladders to change the light bulbs. (28) The only person who would change the lights accepts that the lights were out for some time because it was difficult to change and the relevant light (lobby light) was not working because he had not bothered to change the globe (see Exhibit E at [14]). There is no evidence to suggest that any arrangement was in place regarding the changing of light bulbs that were difficult to change. (29) The landlord did not have a system in place from mid-February 2010 to mid-June 2010 because Mr Kirkham was not a tenant at the premises and indeed he was not in the state. There was no one in place for the changing of the light bulbs."
4. Effectively, the Plaintiff's submission was that Mr Kirkham was the agent of the landlord. [69] The Defendant on the other hand contended that Mr Kirkham was not the Defendant's agent but rather the 'go to man' in the sense that, if there were a complaint, someone would tell him and he would go to the owner. [70] In evidence, the Defendant stated that if he received some information from Mr Kirkham, he would generally ring his father within an hour or two of receiving the notification. After that his father would ascertain the situation and make a decision as to what was required. Specifically the Defendant contended that Mr Kirkham had no authority to bind the Defendant. On this basis the suggestion that Mr Kirkham was the agent of the Defendant was resisted.
5. Mr Kirkham acknowledged that his role at the premises was as contended by the Defendant stating, "If there was something wrong with the house, they would come to me and then I would contact the landlord." [71] If the repairs were minor in nature, such as changing light globes, he stated he would personally change them by himself or others at the house would do so.
6. When asked if there were a repair perhaps greater than a light globe or something that he did not do himself what would he do in respect of a repair if there were a complaint. Mr Kirkham stated that he would contact the landlord and that his father would normally come out to fix it. His experience in respect of repairs taking place after he had made a complaint was prompt. [72]
7. In Bevillesta Pty Limited v Liberty International Insurance Co (2009) NSWCA 16, Hodgson JA (with the concurrence of Giles AJA and Nicholas J) stated at [53] as follows:- "[53] There is no doubt also that this occupier's duty of care is "delegable", in the sense that it May be discharged in whole or in part by the occupier's exercise of reasonable skill and care in engaging someone else to take steps to keep the property safe either generally or in particular respects. Discharge of the duty in this way requires reasonable skill and care in the selection of the other person, in arranging the terms of engagement of that person, and in confirming that the person does take appropriate steps. If it is reasonable for an occupier to seek to discharge or partly discharge the occupier's duty in this way, and the occupier does exercise reasonable skill and care in all these respects, then if a person coming on to the property is injured due to the failure of the other person engaged to exercise reasonable skill and care to keep the property safe, the occupier May escape liability."
8. In the circumstances of the present case, I do not accept that the Defendant discharged his duty by using Mr Kirkham to change the light s or act as the so-called 'go-to man.'
9. Consistent with the decision in Bevillesta Pty Limited v Liberty International Insurance Co, there is no evidence that reasonable skill and care was exercised in the selection of Mr Kirkham for the purposes of any delegation of duty. Nor were there any terms of engagement or confirmation that Mr Kirkham was taking the appropriate steps. In particular it appears that there were no alternative arrangements made during his absence from the subject property which on his account was between 11 March 2010 and 15 June 1010. The evidentiary onus of establishing the reasonableness of any delegation rested with the Defendant. [73] In my view it has not been discharged. The Defendant, at paragraph 52 of his written submissions, stated as follows:- "The Defendant gave evidence that he was unaware of the suggestion that any inadequacy of the lighting or any complaints in respect of the premises. This accords with Mr Kirkham's evidence that he was the 'go-to man.' Accordingly, no negligence can be brought home to the Defendant. On this basis of his knowledge, or on the basis of any failure in respect of a system, nor in respect of the state of the premises at the time."
10. For reasons previously mentioned, this submission is rejected.

OBVIOUS RISK

1. The Defendant next contends that, in the alternative, the risk of injury was obvious and even if the Plaintiff was not aware she is presumed to be aware and therefore presumed to undertake that activity without the need for warning and undertook the activity voluntarily. [74] The Defendant's submissions go to the duty of the Defendant to warn in the circumstances. [75]
2. The Plaintiff resists this submission citing Carey v Lake Macquarie City Council, [76] In that case McClelland CJ at CL stated: [65] There are obvious difficulties in describing a risk as obvious when the level of risk may vary depending on the time of day or the person who must confront it. During the day, a bollard in a pathway would be obvious to any sighted person who was keeping an appropriate lookout. However, a bollard in a pathway at night is unlikely to present an obvious risk except to someone, who, from having seen it during the daylight, is conscious of its presence. Accordingly, a risk will be obvious when it is capable of being readily appreciated at the time that a person comes upon it.
3. I accept that the risk presented by the shortness of the banister and the length of the staircase would not have been obvious to someone in the Plaintiff's position in the circumstances that she attempted to traverse the staircase. Apart from this however I do not accept that an obvious risk arises in the circumstances such as to absolve the Defendant as the Plaintiff could not have avoided the danger in the circumstances. [77]

CAUSATION

1. The Defendant submitted that the Plaintiff failed to establish causation on the basis that she failed to turn the light switch on. Had she done so, the accident would not have occurred.
2. Bearing in mind my finding at [51] of these reasons, this submission is rejected. In my view but for the Defendant's failure to have in place a proper system of inspection and maintenance for lights the Plaintiff's injury would not have occurred.

CONTRIBUTORY NEGLIGENCE

1. The Defendant contends that by reason of the Plaintiff's failure to turn the lights on there ought to be a finding that this was the sole cause of the accident and consequently a finding of contributory negligence assessed at 100%. In light of my finding at [51] of these reasons, the notion of contributory negligence pursuant to s 5K of the Civil Liability Act 2002 (WA) cannot be sustained.

DAMAGES

1. Following the accident, the Plaintiff decided to proceed back to Sydney on the train from Perth. An icepack was applied to her ankle and she was able to elevate the leg although she stated that she was in pain.
2. The Plaintiff stated that on her return to Sydney she went to Wyong hospital and had her leg placed in a back slab. As there was no orthopaedic surgeon on duty, the Plaintiff then went to Manly Hospital emergency department on 29 June 2010. X-rays were ordered which did not reveal any fracture. The ankle was, however, swollen and the Plaintiff was noted as having difficulty weight bearing. The resident medical officer diagnosed a moderate-severe ankle sprain with likely calf muscle tear. Also noted was a possible Achilles tendon injury. The ankle was strapped and the Plaintiff was advised not to weight bear. She was given crutches and was told to take regular analgesia. An appointment was arranged for an ultra sound scan and the Plaintiff was advised to make arrangements for private physiotherapy.
3. On 30 June 2010, the ultra sound was taken which revealed an Achilles Tendon Rupture at the musculotendinous junction. Orthopaedic surgeons at Manly Hospital, reviewed her, placed her in a plaster cast, and surgery was scheduled for 1 July 2010. On this latter date, Dr Walter carried out the repair. It was noted that the following day the Plaintiff was mobilising independently on crutches at discharge. She was prescribed paracetamol and Oxychodone.
4. The Plaintiff next saw Dr Roberts (fellow to Dr Walter) on 15 July 2010. Dr Roberts noted that the Plaintiff was doing well, the pain had settled and the wounds were healing. He arranged for the Plaintiff to be placed in a below-the-knee cast with her ankle in plantar flexion. He advised Mrs Dwight to remain non-weight bearing for a further one month.
5. On 11 August 2010, Dr Walter saw the Plaintiff and removed the cast. He noted that the Achilles tendon appeared to be well healed and as was the wound. He indicated that the Plaintiff would be mobilised by partial weight bearing with a heel raise and further that she could start physiotherapy.
6. On 7 September 2010, Dr Walter saw the Plaintiff again and noted that the wound had broken down, that the foot and ankle were very swollen and the wound had an opening of about one centimetre with discharge of puss and showing the Necrotic tendon underneath. He debrided the wound and took a wound swab. Dr Walter started the Plaintiff on Keflex and asked her to attend hospital for dressing to the wound.
7. On 21 September 2010, Dr Walter noted that the wound appeared to be slowly healing. He advised persevering with the current treatment. However, on 7 October 2010, Dr Chris Fougere (fellow to Dr Walter) noted that the wound was not going anywhere and discussed debridement and vacuum dressing. The Plaintiff was admitted for this purpose on 15 October 2010 and was discharged from Manly Hospital on the 19 October 2010. Dr Fougere noted that the Plaintiff had made a good recovery post-operation and was discharged home with Vac therapy and prophylactic antibiotics.
8. The Plaintiff started physiotherapy at Narabeen Sports and Physiotherapy Clinic on 15 November 2010. It appears she received some relief from soft-tissue massage and treatment. In addition, she continued home rehabilitation to maintain flexibility and strength around her ankle and foot stop.
9. On 6 January 2011, the Plaintiff was seen by a general practitioner, Dr Singh-Panwar. Dr Singh-Panwar noted a concern by the Plaintiff's physiotherapist that her leg was not responding to the treatment and was still swollen. He referred the Plaintiff for a Doppler and ultrasound of the right Achilles tendon on 6 January 2011 with Dr Geier. The Doppler suspected a DVT in one of the Plaintiff's veins. Although the Plaintiff was referred to see Dr Walter for orthopaedic follow-up, it appears the Plaintiff did not see him. [78]
10. On 30 May 2011, the Plaintiff was seen by Dr Roberts for the performance of an MRI which noted:- "Widespread subcutaneous oedema and a mottled appearance to the bone marrow? Reflex sympathetic dystrophy. Anterior-Talofibular ligament appearing intact superiorly but absent inferiorly suggest a partial ankle injury joint effusion but no loose body. Chronic Achilles Tendinosis."
11. On 8 June 2011, Dr Sue Reid referred the Plaintiff to see Dr Peter Lam for a second opinion. That referral is to be found in Exhibit B at Tab 9. The report of Dr Lam was not in the tendered material, however, Dr Endrey-Walder noted in his report dated 25 June 2013, [79] that Dr Lam's report acknowledged that "the scar is very sensitive especially within the area along the prominent scar where there is significant loss of subcutaneous fat" and that "swelling is not an uncommon sequelae following an infection after an Achilles tendon repair." Dr Lam apparently recommended desensitisation and low-impact exercises.
12. A further MRI report was obtained from Dr Roberts on 24 February 2014 which noted:- "Persistent Achilles tendonopathy. Decreased marrow oedema and subcutaneous oedema. Partial deficiency of the anterior talofibular ligament and peroneus brevis tear."
13. The Plaintiff saw Dr Endrey-Walder at the request of her solicitors on 25 June 2013 and 8 October 2014. [80] In his report of the 25 June 2013, Dr Endrey-Walder lists the Plaintiff's complaints relating to her right ankle, including the ankle being stiff, a dull aching pain, tightness, permanent divot along the scar, swelling, an inability to walk long distances, having to hold on while walking down stairs, inability to squat fully or run. The second report of 8 October 2014 notes an analogous list of complaints. She apparently wears slide-in shoes with no back on them. So far as her daily living activities are concerned, the Plaintiff's evidence was that she relied on her husband significantly in the period following the accident. This was not only for the purpose of transporting her to various appointments but for carrying out household duties which, previously, she would have performed. In order to carry out these duties, it appeared that Mr Dwight made arrangements through his employer to work from home. The Plaintiff's estimate was that her husband was doing twenty hours per week of household duties, including driving. In December 2010, she said that she possibly went onto one crutch and eight months following the accident (March 2011) she had come off both crutches and had started to drive. [81]
14. The Plaintiff was challenged in relation to the amount of time that her husband assisted her during the eight-month period following the accident. [82] In particular the Plaintiff was challenged on her estimate of her husband providing domestic assistance of four to six hours and it was put to her that this was a "guess as to how much time was actually needed." [83] Mrs Dwight conceded that six hours would be a guess but she stated that he was doing at least four hours added up over a day. Mr Dean Dwight, the Plaintiff's husband, gave evidence that during the eight or nine-month period following the accident, the Plaintiff was "out of action." He confirmed that he did many of the household tasks, including driving Mrs Dwight to medical appointments.
15. On the evidence I am satisfied that, for a period of eight months following the accident, the Plaintiff did depend on her husband and, to a lesser extent, her daughter Hayley for domestic assistance for an average of twenty hours per week. Thereafter it appears the Plaintiff was able to take up many of the household tasks and indeed returning to driving, increased activity cooking meals, some washing, vacuuming, shopping and cleaning. She conceded that by the time the eight months had passed, she was able to return to a lot of the activities for which she had previously relied upon her husband. [84] This increased further by July 2012 although the Plaintiff maintained she still couldn't do heavier tasks such as lifting heavy loads of washing, making and lifting beds, heavy grocery shopping and climbing ladders. [85]
16. Dr Endrey-Walder, in his report of 25 June 2013, [86] noted that during the period of eight months when the Plaintiff was on crutches she would have needed at least two to three hours of help and assistance per day, seven days per week. Dr Noll who examined the Plaintiff on behalf of the Defendant did not specifically comment on past assistance.
17. In my opinion the Defendant's submission that the Court would not be satisfied that there is sufficient basis to make any allowance under s 12 Civil Liability Act (2002) (WA) cannot be accepted. The amounts proposed by the Plaintiff for hourly rates have not been disputed by the defendant and appear to me to be within the calculations provided for in s12(7) Civil Liability Act (2002) (WA). Doing the best I can on the evidence, I propose to allow twenty hours per week for a period of 32 weeks at $25 per hour, being an amount of $16,000. Thereafter I propose for a period of four years to allow for an average of four hours per week at a rate of $25 per hour being an amount of $20,800. The total amount for past gratuitous assistance is $36,800.
18. So far as the future is concerned, Dr Noll, who saw the Plaintiff for the Defendant on 16 January 2014, referred to the fact that the Plaintiff managed most of her normal activities of daily living including her share of household chores. He noted that the Plaintiff's husband maintained the outdoor area including doing her share of the household tasks. I have also noted the comments of Dr Endrey-Walder in his report dated 8 October 2014 [87] where he stated:- "There is little doubt of a relative incapacity in relation to various household related chores, especially those which require her to perform cleaning low down, squat or crouch, activity which she would normally be able to cope while stepping up on a chair or ladder. She certainly has no capacity to perform yard work, heavier duty household maintenance and repair. I have previously recommended one hour of help per day, seven days per week in this regard, and I would confirm that opinion following today's assessment."
19. My own assessment, however, based on the evidence referred to is that the Plaintiff's has been able to progressively increase the activities which she was able to perform and indeed has returned to a lot of the activities that she had previously relied upon her husband. On balance, it appears to me to be reasonable allow one hour per week for the future at $30 per week as claimed being an amount on a multiplier of 860.8 of $25,824 for the future.

Out of Pocket Expenses

1. So far as out of pocket expenses are concerned, the parties have agreed arithmetically on a total of $6,368.55 for the past. I am satisfied that it is reasonable to award this sum to the Plaintiff.
2. Further, in respect of future out of pocket expenses, the Plaintiff claims 24 physiotherapy treatments per year, three visits to a general practitioner per year and one visit to an orthopaedic specialist per year. An additional amount of $5,000.00 is sought as a possible requirement of a peri operative anti-coagulation, on the basis of the opinion expressed by Dr Endrey-Walder. [88]
3. On the basis of the out of pocket expenses schedule provided by the Plaintiff, it appears that the Plaintiff last saw a doctor in 2011, although she did have an MRI on 24 February 2014. Dr Noll stated in his report [89] that there was no indication for any further investigations or any further specific treatment and that the Plaintiff was unlikely to benefit from any further passive treatment such as physiotherapy. His view is that it is possible that she could benefit from further self-directed stretching and strengthening exercises, which do not require any further instructions from a physiotherapist.
4. In my view, the Plaintiff has had extensive investigations and treatment from medical practitioners. Dr Endrey-Walder noted in his report of 25 June 2013 [90] that the Plaintiff saw Dr Artinian following obtaining a second opinion from Dr Lam on 14 June 2011, where Dr Artinian said "but there is nothing much he can do." Dr Endrey-Walder further noted that the Plaintiff's physiotherapy treatment had been reduced to one session per month. He noted that the Plaintiff should be encouraged to continue with physiotherapy and her current casual work as a swimming instructor, as hydrotherapy would probably be even more helpful in maintaining her current level of functionality than physiotherapy would be. In his report of 8 October 2014, [91] Dr Endrey-Walder states that the Plaintiff should continue to rely on physical therapy on a regular basis to at least maintain her current level of functionality of the ankle.
5. The Plaintiff's evidence was that she continued to have physiotherapy approximately once per month, although she possibly should have gone every fortnight, however, her physiotherapy allowance from her medical fund was limited. [92] She indicated that the purpose of the physiotherapy was to get massage and relieve some of the pressure inside the joint. She also does exercises at home. [93]
6. In the circumstances, I propose to allow 12 physiotherapy treatments per year at $80.00, multiplied by 860.8, being an amount of $15,892.00. I will allow a further buffer of $2000.00 on account of over the counter pain medication, which the Plaintiff gave some evidence of. In my view the Plaintiff's condition has reached a plateau and I am not persuaded on the evidence that any further medical treatment or therapy is reasonable or will be required.

Non-Economic Loss

1. The Plaintiff is aged 55. The injury suffered by her was a significant one. It was sustained in circumstances where it was difficult for her to obtain immediate treatment but ultimately resulted in surgery, infection, immobilisation and an extended period of physiotherapy. Her home and work lives were disrupted as indicated in these reasons. In addition the Plaintiff gave evidence of previously enjoying recreational pursuits such as walking, running and bike riding. [94] Whilst her condition has in my view stabilised she gave evidence of still suffering from swelling, cramps and pain in respect of which she obtains relief by physiotherapy, Panadol and Voltaren. Nevertheless she has returned to many of her household tasks including driving although the evidence is that she needs assistance with heavier tasks. In all of the circumstances I propose to allow $100,000.00 for non-economic loss in accordance with s9 of the Civil Liability Act (2002) (WA).

Economic Loss

1. The Plaintiff was employed from approximately 2009 with Terry Hills Golf Club, earning $40,000.00 gross per annum managing the golf club. She was made redundant after two years just prior to the accident. At the time of the accident, she had not found a job although she claims that she was looking for one. The evidence that she gave was that following the accident that she applied and obtained three interviews. [95] In cross-examination, the Plaintiff stated that two of the jobs were at the Royal Golf Course in the city in an administrative role, sitting down, and the other was at the East Lakes Golf Course of a similar vein. [96] She stated that she applied for these positions in the first eight months of her injury and had crutches at the time. Her evidence was that she felt mentally that she could do the jobs but physically she did not know. She stated at that at the time of applying she felt that she could do the job, the problem was getting to the job because she could not drive. [97] The third interview, which the Plaintiff attended, was with IBM and was an administration position. The Plaintiff's husband had apparently suggested this position however she was unsuccessful.
2. In July 2012, the Plaintiff obtained qualifications teaching children how to swim and was working at Mosman Ezyswim. Her evidence was that she worked Wednesday afternoons, Thursday and three hours on a Saturday as a fill-in. She gave evidence that on average she worked four hours a week and claimed that she would not work long hours as she gets cramps in her legs. She did not work on holidays because of the demands. She confirmed her earnings were $21.00 per hour. The Plaintiff's evidence was that following eight months of the injury, in July 2012 when she commenced at Ezyswim, she could carry out an administrative type role, depending upon where it was. At the time when she commenced at Ezyswim in July 2012, her evidence was that she was capable of full-time administrative assistant duties. [98]
3. Dr Endrey-Walder, in his report dated 8 October 2014, [99] stated:- "I would consider her fit to perform some part-time clerical/administrative work if she were lucky enough to obtain a position, and if so, one would recommend a maximum of four hours, five days per week. Alas, she has not been lucky so far."
4. Dr Noll, however, in his report dated 16 January 2014, [100] stated:- "In my opinion, Mrs Dwight would be capable to resume office-based work activities if she chose to do so. It is noted that she currently works as a swimming teacher and, in my opinion, she would be able to continue with this work activity for the foreseeable future. Given the nature of her work activities, it is unlikely that the injuries sustained would result in any impairment of her future earning capacity."
5. The Plaintiff seeks the sum of $650.00 for the past less earnings from Ezyswim said to be $105.00 per week (from July 2012). The Defendant claims that there is no basis to conclude that at the time of the accident the Plaintiff would have been immediately able to obtain employment and accordingly, the Plaintiff's past economic loss should comprise a small buffer to compensate for the period from the time of the accident to February 2011, or from the time of the accident to July 2012. I found this aspect of the claim most difficult.
6. On her evidence the Plaintiff, has had education to secondary level. Her chronology Exhibit A states that she has a Diploma in Information Technology and has completed a real estate course. Whilst Exhibit A refers to her having been employed doing administrative work after her marriage on 6 February 1982 and before her daughter's birth on 31 May 1990 there are no details of this. The only pre injury job that the Plaintiff gave evidence of was for a period of two years at the Terry Hills Golf Club. After she ceased that job in June 2010, she had not found another job at the time of the accident. Since the accident, she also has had no other position apart from that at Ezyswim. She did give evidence however of having attending three interviews referred to earlier. When she was asked whether she enjoys her current job, she stated, "It's alright." [101] She stated that she was still applying for positions.
7. The Plaintiff's main concern about resuming working was driving. Her evidence was she recommenced driving after eight months. Bearing in mind the circumstances of adjustment so as to being able resume driving to work after eight months I have allowed an extra 3 weeks making a total of 35 weeks from the time of the accident to February 2011 at $650.00 net, less 10% to take into account the fact that the Plaintiff may not have been employed in any event. This equates to an amount of $20,475.00. Loss of superannuation has been claimed although not included in the loss schedule. In the circumstances I will allow 11% for past superannuation loss being an amount of $2252.25. For the four-year period from 20 February 2010 to date, I consider the Plaintiff could have worked in an administrative role, such as the role, which she had previously performed, based on her own evidence. I am not persuaded that she has sought employment as actively as she could in that time. Despite her concession I am not persuaded even if she did work, that she would be able to maintain any such employment uninterrupted for the balance of her working life. In my view any such disruption is likely to have been relatively more pronounced in the past than in the future particularly before July 2012 when she commenced at Ezyswim. In all, I consider that a buffer should be awarded of $20,000 for the past four years and $40,000 for the future. This would account for any time that she may have (or have had) off and time during which she may also have (or have had) occasional difficulty driving to work for a short period. I have taken account of loss of superannuation in these amounts.

Summary of Damages

1. In summary the damages awarded are as follows: Past Damages for the Provision of Home Care Services $ 36,800.00 Future Damages for the Provision of Home Care Services $ 25,824.00 Past out of pocket expenses (agreed) $ 6,368.55 Future out of pocket expenses $ 17,892.00 Non Economic Loss $100,000.00 Past Economic Loss from 23 June 2010 to 19 February 2011 (35 weeks) $ 20,475.00 Past Economic Loss (buffer) from 20 February 2011 to date $ 20000.00 Superannuation for past economic loss of $20,475 @ 11% $ 2252.25 Future Economic Loss (buffer) $ 40,000.00 Total $269,611.80

1. Rounded off there will be a verdict and judgment for the Plaintiff in the sum of $269,612. I will hear the parties as to costs.

Endnotes

1. Hereinafter referred to as Ms Dwight
2. Hereinafter referred to as the Academy.
3. Hereinafter referred to as Mr Dwight
4. TP 53.30-.40
5. TP 54.22
6. TP 55.38
7. TP 56.8
8. TP 47.32
9. TP 85.47
10. hereinafter referred to as Mr Kirkham
11. TP 67.39
12. TP 70.43
13. TP 109.45-110.5
14. TP 111.42
15. Exhibit D.
16. TP 44.11.
17. TP 87.50.
18. TP 82.16-82.15
19. TP 42.20, 69.50 and 92.35.
20. TP 77.6.
21. TP 77.25.
22. TP 77.25.
23. TP 77.45.
24. TP 112.27.
25. Photograph of the stairs near the landing are to be found on P179, Tab 17, Exhibit B- No. 4.
26. TP 64.20
27. TP 64.45
28. TP 65.5
29. TP 71.10
30. TP 65.40
31. TP 65.47
32. TP 66.13-66.25
33. TP 66.47-67.7
34. TP 67.46
35. TP 67.10
36. TP 67.18.
37. TP 98.16
38. TP 121.40
39. TP 98.40-99.21
40. TP 99.27
41. TP 99.42
42. TP 99.25
43. TP 98.34.
44. TP 113.45.
45. TP 114.44.
46. TP 115.17-.24
47. TP 114.48.
48. TP 78.41
49. TP 79.15
50. Exhibit E [14].
51. TP TP 79.20
52. TP 78.13
53. TP 57.44 - 58.8.
54. TP 114.29.
55. TP 114.40.
56. TP 113.6.
57. TP 118.18.
58. TP 118.10.
59. TP 121.48.
60. TP 119.20.
61. Department of Housing and Works v Smith (No 2) (2010) 265 ALR 490.
62. (2000) 207 CLR 166.
63. [2010] NSWCA 180 at [48]-[50].
64. See [73]-[81] below
65. TP 122.12.
66. TP 120.21-.25.
67. TP 121.13.
68. TP 121.2.
69. TP 135.50.
70. TP 144.36.
71. TP 98.30.
72. TP 101.10-.17.
73. Laresu Pty Ltd v Clark [2010] NSWCA 180 at [69].
74. [51] Defendant's written submissions.
75. Vairy v Wyong Shire Council (2005) 223 CLR 422 per Gummow J at [45]-[46] and Hayne J at [162]-[163].
76. [2007] NSWCA 4. at [49]-[50]
77. Macfarlane JA in Laresu Pty Ltd v Clark at [49]-[50]
78. According to a report of Dr Endrey-Walder, Exhibit B, Tab 16 at P160.
79. Exhibit B, Tab 16 at P160.
80. Exhibit B, Tab 16.
81. TP 34.35.
82. TP 34.40-37.10.
83. TP 37.5.
84. TP 37.45.
85. TP 37.50-38.10
86. Exhibit B, Tab 16 at P163.
87. Exhibit B, Tab 16 at P169.
88. Exhibit B, Tab 16 at P168.
89. Exhibit 1 at P5.
90. Exhibit B, Tab 16 at P160.
91. Exhibit B, Tab 16 at P168.
92. TP 22.5.
93. TP 21.35.
94. TP 22.50-23.2
95. TP 18.15.
96. TP 30.23.
97. TP 30.38.
98. TP 33.24.
99. Exhibit B, Tab 16 at P168.
100. Exhibit 1, P6.
101. TP 21.22.

Amendments 10 March 2015 - replaced word "Defendant's" with "Defendant" in paragraph 48 replaced the reference to "[57] above" with "[55] above" in paragraph 58 deleted the word "respect" in the 2nd sentence of paragraph 67 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 March 2015