Gaskell v Denkas Building Services Pty Limited and Others [2006] NSWSC 632 | Case summary

Gaskell v Denkas Building Services Pty Limited and Others [2006] NSWSC 632 | Case summary | Zoe

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JUDGMENT 1 JOHNSON J: The Plaintiff, David Antony Gaskell, brings proceedings seeking damages in negligence and for breach of contract. 2 The Plaintiff alleges that, on 10 September 1998, he slipped on the floor of the men's toilet in a building at 35-37 Railway Parade, Engadine where he leased business premises. He alleges that the fall caused injuries, including a marked deterioration of an existing injury to his left knee. 3 The First Defendant, Denkas Building Services Pty Limited ("Denkas"), was one of the owners of the building in September 1998. The Third Defendant, Harding Rogers & Associates Pty Limited ("HRA"), was the real estate agent, trading as Richardson and Wrench, Miranda, responsible for managing the building between 1993 and 1998. 4 Relief is no longer sought against the Second Defendant, Durrusi Holdings Pty Limited ("Durrusi") which owned the building with Denkas in September 1998. Durrusi has been deregistered and proceedings against that entity have been discontinued. 5 A cross claim brought by HRA against Denkas was discontinued at the hearing, by consent. 6 Accordingly, the claims for relief which remain current in the proceedings are the claims for damages by the Plaintiff against Denkas and HRA. There is no issue that the Plaintiff experienced a fall in the premises on 10 September 1998. However, there is a significant controversy concerning the circumstances of that fall. A major question falling for resolution is whether the Plaintiff had observed pooling of water on the floor of the men's toilet on occasions prior to 10 September 1998 and, if so, whether he had ever complained to representatives of Denkas or HRA about this matter. 7 Both Denkas and HRA deny liability to the Plaintiff. In addition, if liability was established against one or other or both of these Defendants, contributory negligence is raised and significant issues exist with respect to quantum of damages. 8 The Plaintiff commenced proceedings in this Court by filing a Statement of Claim on 7 September 2001. It was common ground between the parties that the Civil Liability Act 2002 has no application to these proceedings.

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The Plaintiff's Business Activities from 1993 to 2000 20 In late 1993, the Plaintiff ceased working for Gaskell & Associates Pty Limited and conducted business using the corporate entity, Hydrofix Pty Limited ("Hydrofix") (T24). At the same time, the Plaintiff carried on business under the business name David Gaskell & Associates. According to the Plaintiff, "they were quite separate businesses" (T24.46). David Gaskell & Associates was a consulting engineering firm involved in the design of engineering structures and civil works and supervision of those works. Hydrofix carried on predominantly seasonal work undertaking repairs to swimming pools (T25.10). 21 As will be seen, the financial success or otherwise of the Plaintiff's business activities between 1993 and 2000 became a significant issue in the hearing. Counsel for Denkas and HRA submitted that the Plaintiff's businesses were financially unsuccessful in that period and that this operated adversely to the Plaintiff on the question of damages and, significantly, as to his credit given certain evidence he gave at the hearing. The Plaintiff's Pre-Existing Injuries 22 In April 1983, the Plaintiff suffered serious injuries to his left leg when he fell from an off-road motor cycle which pinned his leg to the ground (T19.40, T238.22). Prior to this accident, he had no problems with his left leg. 23 Three days after the 1983 accident, the Plaintiff underwent open knee surgery. Arthroscopic procedures were performed on his left leg again in May 1987. Both procedures were carried out by Dr Wilding. 24 At the time of the second round of surgery in May 1987, Dr Wilding informed the Plaintiff that he had degenerative changes present in this knee and that he would need to take care of it (T238.55 - 239.05). It was Dr Wilding's opinion that the Plaintiff would have required a total left-knee replacement as a result of the 1983 injury even if the September 198 fall had not occurred (Exhibit O, page 4). 25 The significant injuries to the Plaintiff's left knee required physiotherapy treatment in September and November 1996 (T240-244). From at least this time, the Plaintiff's left knee displayed some signs of recovery, with occasional set backs resulting from events which caused subsequent aggravation (T244-266).

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The Leased Premises 26 The premises at 35-37 Railway Parade, Engadine had been converted from a squash court complex to an office building at some time prior to 1993. According to the Plaintiff, the offices on the first and second floors were modified squash courts so that each office was the size of a squash court and the actual glass windows in the offices were the glass backs of the squash courts (T32.40). There were separate male and female toilets on the first and second floors for use by the tenants, their employees and clients. The toilets were located in a central area of the building around which the offices were spread (T33.14). The men's toilet on the first floor was diagonally opposite, but up three stairs from the entry to the Plaintiff's office (T33.20). A car park was located underneath the rear of the building (T32.33). 27 On 9 August 1993, Denkas and Durussi entered into a management agency agreement with HRA with respect to the premises (Exhibit 19). This agreement continued to govern the relationship between Denkas and HRA in September 1998 and beyond (Rogers, T517.7). 28 In December 1993, a written lease was entered into between Denkas and Durussi, as lessors, and Hydrofix, as lessee, with respect to Suite 6 on the first floor of the premises (Exhibit 21). The lease was for a term of three years with an option to renew for a further term of three years (Exhibit 21, clauses 1, 4). 29 According to the lease, Hydrofix was named as the lessee at the request of the guarantor who was identified as the Plaintiff (Item 4, Part II, lease). Clause 14.2 of the lease provided as follows: "The Guarantor and the Lessee acknowledge that by their execution this Lease has been granted by the Lessor at the request of the Guarantor on condition that the Guarantor should guarantee to the Lessor the Obligations." 30 Clause 5.1 of Part II of the lease provided for a basic rent of $8,797.50 per annum payable by equal monthly instalments in advance, with a rent review to be conducted in accordance with Part III of the lease. 31 The common seal of Hydrofix was affixed to the lease in the presence of the Plaintiff as director and his wife, Susan Gaskell, as secretary (Exhibit 21, page 19). In addition, the the Plaintiff executed the lease as guarantor (Exhibit 21, page 20).

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32 Accordingly, the lease was entered into with Hydrofix as the tenant at the request of the Plaintiff himself. He was a party to the lease as guarantor and acquired personal responsibilities as a result under the lease. 33 Clause 4.2 of the lease provided as follows: "If the Lessee continues to occupy the premises beyond the expiration of the term of this Lease with the consent of the Lessor otherwise than pursuant to a further Lease granted by the Lessor to the Lessee he shall do so as a monthly tenant only at a rental payable monthly in advance equal to one twelfth of the current rent from time to time payable during such monthly tenancy. Such tenancy shall be terminable at any time by either party giving to the other one (1) months notice in writing but otherwise shall be subject to such of the provisions hereof as are not inconsistent with a monthly tenancy." 34 The Lessee covenanted as follows in paragraph 6.14 of the lease: "To give to the Lessor prompt notice of any damage defect or deterioration affecting the premises or any accident to or defect in the water gas drainage or electrical installations appliances or fittings and the Lessor his servants and agents shall have the right but not the obligation to enter the premises at reasonable hours so often a [sic] may be necessary to attend thereto." 35 Clause 8.1 provided for the lessor's right to enter: "The Lessor shall have the right for itself its architects surveyors agents or other authorised servants or workmen to enter upon the premises to carry out any works or make any repairs alterations or additions including installation of telephone electricity or cable services to the premises PROVIDED THAT such works shall be carried out by the Lessor without undue interference with the occupation and use of the premises by the Lessee." 36 Clauses 10.7 and 10.8 of the lease related to the use of car spaces and common areas including toilets: "10.7 The Lessee will have the right to the exclusive use of two undercover car spaces with access it to [sic] and egress from in common with other occupiers of the Building.

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13.2 The Lessee will have the right to use in common with the Lessor and other persons the footways passageways toilets driveways and such other areas grounds pertinences [sic] and conveniences of and in relation to the building for the respective purposes for which they were designed and intended." 38 In March 1996, Hydrofix was deregistered (T110.25). Thereafter, Denkas as landlord, and HRA as managing agent, accepted rent from the Plaintiff and the Plaintiff continued to conduct his business from the premises (T37-38). This position maintained up to and, indeed, after the date of the Plaintiff's fall on 10 September 1998. The evidence indicates that no formal written tenancy agreement was entered into between 1996 and 1998. 39 The Plaintiff was the Senior Associate of David Gaskell & Associates. HRA managed the building at all relevant times. Correspondence between HRA and the Plaintiff at relevant times used the David Gaskell & Associates letterhead (T47.20). 40 In about March 1998, the Plaintiff's business moved from Suite 6 to Suite 4A, another area on the first floor of the building (T47.04). 41 The original tenant, Hydrofix, ceased to exist as a separate legal person. The Plaintiff, the guarantor under the Hydrofix lease, continued to occupy the office premises. Thereafter, the payment of rent by the Plaintiff and acceptance of rent by Denkas and HRA gave rise to a tenancy at will with the Plaintiff as tenant: s.127 Conveyancing Act 1919; Chan v Cresdon Pty Limited (1989) 168 CLR 242 at 248-249. The lease was terminable on one month's written notice expiring at any time. There was imported into that tenancy a covenant to pay rent in the terms of the covenant in the Hydrofix lease, as well as the other covenants in that instrument so far as they were consistent with such a tenancy: Chan v Cresdon Pty Limited at 249. 42 I accept, for present purposes, that the conditions of the lease continued to permit the Plaintiff, as tenant, access to the men's toilet and other common areas of the building, including entries and passageways, so as to enable him, his employees and clients to use the premises for the purpose for which they were leased. This is entirely consistent with the original written lease. If there be any question concerning the application of the provisions of the original written lease to this tenancy at will, then a sensible commercial operation ought be given to the commercial tenancy represented by the offer and acceptance of rent as between the Plaintiff on the one hand and Denkas and HRA on the other hand as between 1996 and September 1998: Glasshouse Investments Pty Limited v MPJ Holdings Pty Limited [2005] NSWSC 456 at paragraph 15. 43 I am satisfied that the Plaintiff was the tenant of the office premises, with a right to use the men's toilet, at the time of the incident on 10 September 1998. Events on and after 10 September 1998

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Q. So you had resolved in your mind from that very day that you would sue for damages; is that right? A. I knew that the incident was significant. I was lying in bed in extreme pain with the knee swollen up. I knew that the recovery process would not be quick, and I was you know, I'm an engineer. I tend to cover bases. It may have been something that was not required, but I knew that while it was fresh in my mind I should just make a notation of it." 53 The letter (part Exhibit D) stated: "Re: Public Liability - 35-37 Pde, Engadine Mr David Gaskell had an accident in the men's bathroom of above property at 1.25 pm 10/9/98 and has serious damage to his knee. Please provide provider for Public Liability." 54 In a facsimile sent by an employee of the Plaintiff to HRA on 30 September 1998, the following was said (part Exhibit D): "Re: Public Liability - 35-37 Pde, Engadine We wrote to you on the 11/9/98 and requested you advise us of the provider for Public Liability regarding David Gaskell's accident on the 10/9/98 1.25 pm in men's bathroom at above address. Toni Elsegood spoke to John on the 23/9/98 at 1.36 pm and he informed me that we would be receiving a letter with this information. As to date this has not happened. I also in formed [sic] him of the banging pipes (very loud noise) with in [sic] the building. He informed me that the plumber would be coming out to check. This has not happened either. Could someone please get back to me this week regarding the above information required." 55 In March 2000, the Plaintiff was involved in another incident, this time with a motor falling off its mounting onto his left leg. The Plaintiff had been working on the motor in his garage at home. He subsequently visited a physiotherapist where it was noted that he was suffering increased pain which had not settled down (T180.20 - 182.35). 56 The Plaintiff visited a physiotherapist for a back complaint in July 2000. This back complaint appears to be unrelated to the accident of 10 September 1998. 57 The Plaintiff also complained of an injury to his foot (T49.29). No evidence was presented to relate any foot injury to the accident. I am not satisfied that any foot injury is related to the accident of 10 September 1998.

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The Plaintiff's Physical Activities Before September 1998 58 The Plaintiff said that he had engaged in a range of outdoor activities and forms of exercise prior to his 1983 accident. Following the 1987 operation relating to the 1983 accident, the Plaintiff said that he did not return to recreational running (T21.47). However, his activities after 1987 included bicycle riding, car racing, surfing (both using flippers and with a wave ski) and, in particular, bush walking (T21.54). He recounted his bush walking activities prior to September 1998 including the carrying of a heavy backpack (T22). Bush walking involved journeys on both rough and smooth tracks (T22.31). The Plaintiff said that he would regularly undertake 14 kilometre bicycle trips between his home and Waterfall (T23.1). He said that, as at September 1998, he planned to undertake a bush walk on the Six Foot Track between Katoomba and Jenolan Caves, a 42 kilometre journey (T23.40). He said that, following his fall on 10 September 1998, he did not undertake this walk. 59 It was the Plaintiff's evidence in chief that, until the fall in September 1998, he assisted with household duties on a regular basis including vacuuming and floor sweeping of the family home (T28). He said that he would occasionally perform mopping and window cleaning and dishwashing (T28-29). He estimated the period during which he carried out these tasks prior to September 1998 as being about one-and-a-half to two hours per week (T30.31). 60 The Plaintiff said that he had a "bit of a passion" for cars and that he serviced the family vehicles and raced some vehicles, generally open-wheel buggies built on a Volkswagen base used for off-road racing (T29). The buggies were manual vehicles requiring clutch operation with gear changes undertaken during races (T30.1). The Plaintiff said that, prior to 10 September 1998, he was physically capable of manual gear changes in the context of racing these off-road vehicles (T30.6). 61 On 24 September 1998, the Plaintiff once again saw Dr Wilding, who had operated upon his left knee in 1983 and 1987 (T55.17). The Plaintiff stated that his pain levels reduced but continued at a lower level (T55.31). With respect to mobility, the Plaintiff stated that he was using crutches for a short time and there was short-term improvement in his mobility, but restriction in movement continued (T55.40). He noticed difficulty with walking, descending stairs, climbing ladders and kneeling (T55.54). He said that his left knee felt unsteady and was weaker following the September 1998 fall (T57.40). He said that he attempted a short bush walk about one year after the September 1998 fall using a light backpack. He took an extremely long time to complete the walk and felt severe pain in the leg as a consequence of the walk (T58.19). As a result, he felt that his hiking days were completely over (T58.13). 62 The Plaintiff stated that he had used a TENS machine on his left knee (T59.7). In August 1999, he was referred to Dr Rowden, Joint Replacement Specialist, who recommended a left-knee replacement (T59.42). The Plaintiff stated that he had not undertaken the knee replacement because of cost and the time required to remain away from work, but that he would do so if time became available and he received money to cover his wages (T59.53). He stated that he used Osteoeze, a non-prescription medication, which he purchased through pharmacies for about $26.00 a packet (T60.36). 63 The Plaintiff stated that he had no prior problems with his back before September 1998, but that he noticed some difficulty with his lower right back when he lifted weights. He stated that he received physiotherapy for his back (T60.53-61.16). He stated that he had some problems with his ankle for which he had not sought any specific treatment (T61.31).

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Q. Did you ever do it by any other means? A. I probably did refer to matters when talking to the agent on other occasions. I can't specifically recall what I said, though." 83 The Plaintiff's examination in chief was completed late in the day on 18 April 2005 and cross-examination commenced by counsel for Denkas. Because of a proposed amendment to the Defence of Denkas (which is no longer relevant), the Plaintiff had leave to inspect certain documents overnight which were referable to that amendment and to confer with his legal representatives concerning that topic (T80.46). 84 At the commencement of the second day (19 April 2005), counsel for the Plaintiff informed the Court that in the course of the Plaintiff's consideration of documents overnight relevant to the amendment, he had come across a file. Mr Elliott said (T82.22-25): "Following inspection overnight, the plaintiff has uncovered a file and I wish to take him through some documents from that file. It would be my application, your Honour, to reopen in chief." 85 There was no opposition to the Plaintiff having leave to re-open his examination in chief to give evidence concerning documents contained on a file. During the course of the further examination in chief, counsel for the Plaintiff informed the Court that his client had recalled conversations said to have occurred before 10 September 1998 relating to the pooling of water and that this recollection had been triggered by the Plaintiff's examination of documents overnight (T88). Counsel said that the Plaintiff was to allege that he met Mr Mark Kasunic with Mr Rogers at the site in about May 1998, that Mr Kasunic was introduced as the owner, that he and Mr Kasunic went up onto the roof to look at the airconditioning plant and that, thereafter, the Plaintiff took Mr Kasunic to the men's toilet on the first floor and pointed out the pooling of water to him (T90.91). Mr Gracie informed me that Mr Kasunic was one of the registered proprietors of Denkas (T93.26). 86 Counsel for Denkas and HRA objected to this evidence being adduced from the Plaintiff and submissions were made by reference to the letters providing further and better particulars (referred to above) which had not identified such a case, and to the evidence of the Plaintiff the previous day which had raised and discarded such a case. Towards the end of submissions, I said to counsel for the Plaintiff (T102.38): HIS HONOUR: … Your client is raising this not just at the 11th hour but at the 12th hour and you can see the issues it's raising with respect to him.

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Q. You have already agreed that what must have gone through your mind was something along the lines of, 'I told them about this problem and now I have really hurt my knee because of the very thing that I told them about.' That must have gone through your mind? A. Yes." 101 The Plaintiff was reminded of the absence in the further and better particulars provided prior to hearing of any assertion that there had been a complaint made by him to a representative of Denkas or HRA prior to 10 September 1998 (T327ff). The Plaintiff's evidence given in an attempt to reconcile his evidence at the hearing with the earlier further and better particulars provided on his instructions was, in my view, less than convincing. I shall return to this topic later in this judgment. 102 It was pointed out to the Plaintiff in cross-examination that the letter of 11 September 1998 (part Exhibit D) was silent concerning the alleged presence of water on the floor and any alleged earlier complaint about the pooling on the toilet floor (T337-338). The Plaintiff asserted that he had requested his secretary to write the letter and that he believed that he had not dictated the letter to her (T338.11). This evidence conflicts with the earlier evidence of the Plaintiff where he asserted that he had dictated the letter sent on 11 September 1998 (T178-21-T178.35). 103 Mr Catsanos put to the Plaintiff (T341.59): "Q. One would expect not only would you have said, as I put to you now a few times, 'Notwithstanding my complaint, nothing was done and I have been injured.' You would have expected, if you were on the subject of maintenance and defects, that the very defect that you allege caused your injury, and that you alleged you complained of, would have received at least some space in this letter; would they not? A. Whether the injury occurred before or after, even if, as you assumed, we had not told the agents before a fact which I deny even taking that as the case, there might be an argument to include in that follow up to say 'You haven't repaired the water on the floor.' That does not occur, so the mere reference of there being nothing about the reference to the water on the floor here has nothing to say whether it occurred before or after.

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Q. You weren't averse to making a threat and complaining in fairly strident terms if you felt it was appropriate? A. This is a letter that not only have I signed myself, but I recall actually typing myself, and it is a letter that is the second that I have signed but probably the first that I have actually physically typed, and it was after a period of nearly a month of inactivity and no answer from the agent." 105 The evidence demonstrates that the Plaintiff was ready, willing and able to raise issues concerning the state of the premises with the agent, some times in strident terms, if he considered that it was in his interests to do so. Against this background, it is difficult to understand that had he observed pooling in the manner alleged by him and had he complained about the pooling prior to 10 September 1998, that he would not have referred to this in writing after the fall. The absence of such contemporaneous written complaint after the fall is a telling factor against the Plaintiff's account of events allegedly preceding the fall. 106 There is a significant contrast between the Plaintiff's readiness to raise matters concerning the state of the leased premises in writing with HRA on other occasions, both before and after 10 September 1998, and the absence of any written complaint concerning alleged pooling of water on the men's toilet floor. In my view, this is most significant in considering the existence or otherwise of contemporaneous corroborative material supporting the Plaintiff's claim that he had complained to representatives of Denkas and HRA about the alleged pooling in about May 1998. 107 Having regard to the Plaintiff's left knee injury sustained in 1983, it might be thought that he would have a heightened sensitivity to any risk of slipping in any part of the leased premises. The absence of any written complaint by him concerning this matter prior to 10 September 1998 is significant. Tellingly, the absence of any written complaint from the Plaintiff after 10 September 1998 alleging, in terms, that he had slipped in a pool of water on the floor of the men's toilet and that this was a matter about which he had complained at an earlier time to representatives of Denkas and HRA, undermines his evidence on this point. 108 The position is further compounded by the matters which were alleged, and not alleged, by way of further and better particulars provided before the hearing, in his counsel's opening address and in his own evidence in chief of the first day of the trial. The sudden and somewhat dramatic change in the Plaintiff's evidence on the second day of the trial with respect to alleged earlier observations of pooling and complaints made to representatives of Denkas and HRA is difficult to accept. There are fundamental inconsistencies and contradictions in the evidence of the Plaintiff. His own statements expressed directly, or through his legal representatives, up to the end of the first day of the trial did not allege any direct complaint by him to any representative of Denkas or HRA prior to 10 September 1998. At its highest, there appears to have been an allegation of a hearsay account obtained through plumbers working at the premises in 2000 that a representative of Denkas was said to have some prior knowledge on this matter. This is far removed from the version ultimately given by the Plaintiff. 109 The Plaintiff's evidence on this issue is so unsatisfactory and unreliable that a finding ought not be made, on the balance of probabilities, that the Plaintiff complained about alleged pooling to representatives of Denkas and HRA prior to the fall in September 1998. The evidence of Mr Rogers and Mr Harding 110 The Plaintiff's position on these issues is worsened further by the sworn evidence of Mr Rogers and Mr Harding that no such complaint was ever made to them. This material fortifies my conclusion that the Plaintiff's evidence does not establish, on the balance of probabilities, that some prior complaint was made. 111 Mr Rogers gave evidence in HRA's case. During examination in chief, he was asked (T521.31): "Q. Right, so I want you to assume that Mr Gaskell has said (page 108 of the transcript) that there was an occasion, he believes probably around the middle part of 1998, when he had a conversation with either yourself or Mr Harding, you can't speak for Mr Harding, I am not asking you to do that, but just in relation to yourself I want you to assume he said he had had a conversation that may have been with you. This conversation (page 110) was along the lines that he had just, assuming we are speaking about you now, that he had seen you at the premises with a potential new tenant who you were apparently showing around the property for inspection purposes and that he took you, seeing you in that context it was in fact suggested, again assuming it was you, that you, having seen Mr Gaskell, were using him as some sort of referee, somebody who could speak about the premises for this new tenant, having been a long term tenant, that you were promoting Mr Gaskell as somebody who could provide some sort of recommendation so that in that context he then took you to the bathroom on the first floor and said, 'Here's a pool of water, its often there. Can it be fixed?' And you said something along the lines of 'I will address that with the owner'. So that is a conversation he says occurred in the middle part or thereabouts of 1998. Now I want you to carefully consider that evidence and tell me did any such conversation ever occur? A. No.

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127 The Plaintiff asserts that it was during the course of an examination by him of some of his own documents on the evening of the first day of the trial that he recalled that the quotation concerning air conditioning occurred in mid-1998 and that, in the course of dealings with Mr Kasunic concerning that quotation, he took Mr Kasunic down to the men's toilet and showed him the pooling of the water with Mr Kasunic saying that the matter would be attended to. What is the evidentiary consequence of the failure of Denkas to call Mr Kasunic? 128 In Manly Council v Byrne (2004) NSWCA 123, Campbell J (Beazley JA and Pearlman AJA agreeing) said at paragraph 51: "Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn." 129 Counsel for the Plaintiff submitted that it is the second type of inference which should occur in this case as a result of the failure of Denkas to call Mr Kasunic to give evidence. 130 Of course, the fact that Denkas has not called Mr Kasunic to give evidence does not entitle the Plaintiff to an automatic finding in his favour on this issue. It is necessary for the Court to assess the Plaintiff's evidence on this question to determine what findings should be made, on the balance of probabilities. It is reasonable for the first type of inference referred to by Campbell J in Manly Council v Byrne at paragraph 51 to be drawn in the circumstances of this case, namely that the evidence of Mr Kasunic, if called, would not have assisted Denkas. However, there remains a range of difficulties with the Plaintiff's evidence which have been referred to in the assessment of his evidence on these issues generally. 131 I accept that the Plaintiff had direct dealings with Mr Kasunic with respect to the air conditioning in 1998. However, to move to the next step and make a finding on the balance of probabilities, that the Plaintiff spoke to Mr Kasunic concerning the alleged pooling of water problem involves an assessment, on the probabilities, having regard to all the evidence. 132 It is pertinent to note the Plaintiff's propensity to complain in writing, as illustrated by Exhibits D and F, and his oral testimony (T86.31): "Q. Turning to the letter from Richardson & Wrench of 15 December 1993, that letter was received by you at about that time? A. That's right.

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Q. What problems were they, sir? A. There were mainly issues with the airconditioning and issues with car parking and we had also complained about dripping taps on one occasion. Those were all in writing. Generally in writing they followed up earlier verbal requests. So there were other requests made and invariably when the verbal requests weren't followed through, it went in writing." 133 No written complaint has been made about the water pooling before the fall. Nor is there any written complaint after the fall indicating that he had slipped in a pool of water about which he had made prior complaint. Bearing in mind the Plaintiff's propensity for written complaint, it is difficult to accept that he would have made no such written complaints, had the conversations about the water pooling occurred with Mr Kasunic. 134 The Plaintiff's failure to assert that such an event occurred in further and better particulars provided prior to the trial, the highly unsatisfactory nature of the Plaintiff's evidence given on the first and second days of the trial on this issue and the absence of any contemporaneous record of complaint that the very problem that he had allegedly complained about to Mr Kasunic had caused him to fall in the men's toilet and suffer injury, lead me to a finding that the Plaintiff has not discharged the civil burden of proof on this factual issue, even taking into account a Jones v Dunkel inference arising from the failure of Denkas to call Mr Kasunic. As stated earlier, the evidence of Mr Rogers and Mr Harding fortifies that conclusion. Even if the second type of inference referred to by Campbell J in Manly Council v Byrne was to be drawn in this case, I would still not be satisfied, on the balance of probabilities, that the Plaintiff complained to Mr Kasunic concerning the pooling of water. Some Other Issues Affecting the Plaintiff's Credit 135 Counsel for Denkas and HRA have submitted that a number of areas of evidence reflect adversely upon the Plaintiff's credit. There is force in these submissions and I have regard to the following matters as well in assessing what findings ought be made based upon the Plaintiff's evidence.

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Q. Tell us about the loan then, sir, so far as you recollect? Who was it by, what was it for, how did it relate to the business, was it for your personal use, things of that order? A. It was a repayment of an overdraft that we had had, so the business was not running with an overdraft but had paid off a previous overdraft." 141 A little later, the Plaintiff was asked (T137.34): "Q. You now have a situation where demonstrably for four years leading up to the June prior your accident the business is not earning an income, don't you? A. It's demonstrating a loss, yes." 142 The Plaintiff said that the taxation returns lodged in 2003 for the previous decade were truthful and confirmed that he had no other sources of income personally for the four-year period up to 1998 which he had not declared in his tax returns (T138). The Plaintiff was reminded that his solicitor had stated in a letter dated 26 March 2003 that "at the time of the accident, the plaintiff was in receipt of approximately $50,000.00". He maintained that he believed that information to be true at the time although he agreed that it was not a true representation of what was reflected in the income tax returns filed in December 2003 (T147.30-148.15). 143 The Plaintiff was asked (T149.11): "Q. Well, sir, doesn't it demonstrate this fact, that in truth your business was getting more money simply by reason of your activities after the accident? The documents self evidently show that, don't they? A. Yes, and that's what I had stated in the thing that you brought out earlier. We actually restructured again after the accident and for a short period of time, as is often the case, when you downsize then the profit increases." 144 It was submitted for Denkas and HRA that the Plaintiff's evidence concerning the profitability or otherwise of his businesses between 1993 and 2000 did not assist him both on issues of credit in the proceedings generally and specifically with respect to his claim for economic loss. 145 As the Plaintiff conceded ultimately under cross-examination, the picture presented by this evidence is one of continuous financial difficulty for the Plaintiff's businesses for a period of five years before the accident on 10 September 1998 and thereafter until the sale of the business in 2001. The letter from the Plaintiff's solicitor dated 26 March 2003 (T147-148) does not appear to have any objective foundation. The fact that the Plaintiff instructed his solicitor to provide such financial information at that time does not assist the Plaintiff's credit.

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The Evidence of Mr Giles 161 The Plaintiff called Mr Alan Giles to give expert evidence concerning the safety of the premises. Mr Giles holds a Masters Degree in Applied Science (Occupational Health and Safety) (T541). He holds a Graduate Diploma in Occupational Hazard Management (T541.57). Mr Giles provided a report dated 16 December 2002 (Exhibit B1) on the letterhead of Safety Audit Services Pty Limited. 162 Mr Giles conducted a site inspection on 28 November 2002, some four years and two months after the Plaintiff's fall. He was asked to make certain assumptions for the purpose of his report (Exhibit B1, page 5). The assumptions related to the Plaintiff's account of the fall on 10 September 1998 and his alleged observations after the fall. There was no reference in the assumptions provided to Mr Giles of any prior history of observations of water pooling by the Plaintiff nor of complaints allegedly made by him concerning the pooling of water. 163 Mr Giles described the tiles on the floor of the men's toilet as "untextured" (T548.42). He said that the more textured a tile is, the less slippery it will be (T548.46-549.17). 164 Mr Giles undertook wet testing of the floor using methodology contained in Australian Standard 4663:2002. He referred further to a publication of the WorkCover Authority of New South Wales issued in November 1998 entitled "Preventing Slips, Trips and Falls - Guidance Note". He undertook a pendulum swing test in accordance with Australian Standard 4663:2002. Using this methodology, Mr Giles concluded (Exhibit B1, page 10): "The writer is of the opinion that, based on the testing carried out, the physical characteristics of the ceramic tiled surface and the assumption of the presence of water/urine on the ceramic tiled surface at the material time, that with such a slippery non textured ceramic tiled surface any unsuspecting person stepping onto the floor as described would be at foreseeable risk of injury." 165 Mr Giles had regard to Australian Standards 3661.1:1993 entitled "Slip Resistance of Pedestrian Surfaces - Part 1: Requirements" and 3661.2:1994 entitled "Slip Resistance of Pedestrian Surfaces - Part 2: Reduction of Slip Hazards" (Exhibit U). Although there is no evidence as to the date when the subject building was transformed from squash courts into an office building, it seems clear that this process was undertaken at least several years before 1993. The Plaintiff commenced to occupy office premises as a tenant in 1993. 166 According to AS3661.1:1993 (paragraph 2), the Standard is intended as a test method to establish the slip resistance of a pedestrian surface in either the "wet" or the "dry" condition. The Standard states: "Unless otherwise stated, the method specified for the measurement of wet slip resistance is used for all wet areas. Wet areas are all external pedestrian areas plus those internal pedestrian surfaces that are normally wet during use." 167 AS3661.2:1994 was approved on behalf of the Council of Standards Australia on 10 December 1993 and was published on 21 February 1994. The Standard is said to be intended to give guidance on the selection, installation, care and maintenance of flooring and other surfaces in domestic, public and commercial areas for the purpose of reducing the slip hazard to pedestrians, including people with disabilities (paragraph 1). The Standard states (paragraph 4.4): "As a rule, textured surfaces provide better slip resistance than smooth, the extent depending on the type of texturing." 168 Mr Giles referred specifically in his report to paragraph 6.4 of the 1994 Standard: " Elimination of water Water is arguably the substance which most often makes floors slippery. Spills of tea, cleaning solution, rinse water and other liquids are too hazardous to leave until the cleaners arrive. Water on the floors is primarily the responsibility of the person who has spilt it and that person should remove the water immediately and signpost the hazard while attending to it. Large quantities of rainwater may be tracked inside on rainy days. Architects may sensibly provide foyers with adequate drainage and walking surfaces that are slip-resistant when wet. Failing this, carpet runners or mats can provide walkways with sufficient capacity to absorb water. Runners will need to be cleaned and dried after use." 169 Paragraph 7 of the 1994 Standard relates to reduction of slip hazards on existing floors. Paragraph 7.1 and Table 1 of the 1994 Standard suggests that suitable methods of improving the slip resistance of an existing ceramic tile floor include blasting (sandblast or captive blast), grind, paint and sand, groove (diamond saw), proprietary treatment or adhesive strip. Paragraph 7.2 provides for special precautions in the home environment. These include: "7.2.2 Bathrooms - Special precautions for bathroom areas include: (a) Using a slip-resistant mat or tapes in bath or shower. (b) Treatments to improve slip resistance are also available (refer to Note 6 of Table 1).

[211]

(i) correct the method of the drainage. 171 Mr Giles stated that anti-slip treatment of the type referred to in sub-paragraph (b) above was readily available in the 1990s (T553.33). 172 Mr Giles relied upon a publication of the WorkCover Authority of NSW issued in November 1998 and entitled "Preventing Slips, Trips and Falls - Guidance Note". Particular reference was made to the Appendix of that publication which stated (part Exhibit B1, page 40): "Legislation and standards on slip-resistant floor surfaces There is a specific regulation concerning floors. This is called the Occupational Health and Safety (Floors, Passageways and Stairs) Regulation 1990 and it calls up Australian Standard (AS) 1657 (in the 1985 version). The Standard states that all floors (or coverings) must have an even unbroken slip-resistant surface, free from holes or obstructions likely to cause a person to trip or stumble. The term 'slip-resistant' is not defined in AS 1657. However, there is an Australian Standard on the slip-resistance of pedestrian surfaces (AS/NZS3666.1-1993). This Standard requires that the Coefficient of Friction for floor materials shall be not less than 0.4 when measured by specified means (the Tortus floor friction tester for dry surfaces and a pendulum test for 'skid test' of wet surfaces). Accident investigations by WorkCover NSW have shown that slip and fall accidents are often associated with floors that do not meet this standard and sometimes occurs on floors that do. Employers would be well advised to ensure that floors meet the standard (preferably for both dry and wet conditions). The slip-resistance of floors should exceed the minimum requirements of AS/NZS3666.1-1993. … AS 1657 contains specifications for concrete floors, metal plate floors and grated floors. It recommends that concrete be wood-float finished or rendered slip-resistant by some other suitable means." 173 In cross-examination, Mr Giles agreed that he did not know how long the tiles on the floor in the men's toilet had been in place as at September 1998 (T555.21). Nor was he aware of any changes which may have occurred in the tiled surface between September 1998 and September 2002 (T555.40). Mr Giles was reminded of the Plaintiff's evidence that he had used the men's toilet two or three times on each working day while he was present over the five-year period between 1993 and 1998 (T556.22). Mr Giles was asked (T556.53): "GRACIE: Q. Now you would regard the fact that he himself did not slip over at all in that decade as indicative of one of two matters, would you not, either he was extraordinarily fortunate that would be one possibility, would it not? A. It's one possibility.

[222]

Prior Observations of Pooling by Plaintiff and Prior Complaint about Pooling by Plaintiff 183 I accept the evidence of the Plaintiff that he used the men's toilet on the first floor on two to three occasions a day on two or three days per week in the five-year period up to September 1998. On this basis, the Plaintiff entered the men's toilet on the first floor in excess of 1,000 times prior to the fall on 10 September 1998. Clearly, the Plaintiff was familiar with the area and was in a position to observe features of the men's toilet, including any pooling of water on the floor. 184 I am not satisfied that the Plaintiff observed pooling of the water on the floor on an intermittent basis in the manner alleged by him in his evidence. I have set out earlier in this judgment my reasons for this view flowing from an examination of the various accounts given by the Plaintiff prior to and at the hearing concerning this and related issues. 185 Put shortly, the Plaintiff was a tenant who frequently raised issues of concern in writing with the managing agent, HRA. There was no written complaint from the Plaintiff concerning alleged pooling prior to the fall. Tellingly, in the aftermath of the fall on 10 September 1998, there was no written or oral assertion by the Plaintiff that there had been a history of pooling of water in the men's toilet. It may be that the Plaintiff observed liquids on the floor on occasions prior to September 1998. However, I do not accept that any observation made by him was such that he felt the need to draw it to the attention of the managing agent or the lessor. 186 I am not satisfied that the Plaintiff drew any alleged pooling on the floor of the men's toilet to the attention of any representatives of HRA or Denkas prior to 10 September 1998. Again, my reasons for this conclusion appear earlier in this judgment and flow from an analysis of the various accounts given by the Plaintiff by way of particulars before trial and evidence at the hearing. 187 In my view, the evidence of the Plaintiff is inconsistent and contradictory on key issues. The first time he alleged a complaint by himself to representatives of HRA and Denkas was on the second day of the hearing in April 2005 against the background of a prior denial that this occurred. I am not satisfied that the evidence of the Plaintiff of prior complaint is credible or reliable. Again, the failure of the Plaintiff to assert in writing in or after September 1998 or orally (in his telephone conversation with Mr Rogers on 11 September 1998) that he had complained about pooling of water on earlier occasions and that, despite his complaint, the problem remained and had led to a fall causing him injury, supports a conclusion that no such complaint had been made by him. The evidence discloses that the Plaintiff would regularly write to the managing agents raising issues concerning the premises. Letters were written at his direction on 11 September and 30 September 1998 concerning the fall. Neither letter asserted that the fall occurred against the background of earlier complaints by the Plaintiff concerning pooling on the floor of the men's toilet. 188 The Plaintiff's evidence itself is internally inconsistent and unreliable on this issue. The evidence of Mr Rogers and Mr Harding denying that any such complaint had been made fortifies a conclusion that no such complaint had been made by the Plaintiff. The failure of Denkas to call Mr Kasunic enables the Plaintiff to call in aid the principle in Jones v Dunkel. The appropriate inference is that the evidence of Mr Kasunic would not assist Denkas' case. The difficulty for the Plaintiff is that his own evidence, on this issue, is seriously inconsistent and contradictory. In my view, it is not reliable or credible. Even with the benefit of a Jones v Dunkel inference concerning Mr Kasunic, I am not satisfied, on the balance of probabilities, that the Plaintiff made any prior complaint concerning alleged pooling on the floor of the men's toilet. 189 I accept the evidence of Mr Rogers and Mr Harding that they had not themselves seen any pooling of water in the men's toilet nor had they received any report of such pooling prior to 10 September 1998.

[224]

The Tiled Floor 193 At a time not specified in the evidence, but well before 1993, the building at 35-37 Railway Parade, Engadine was transformed from squash courts into an office building. The evidence does not reveal whether the floor of the men's toilet on the first floor was laid at the time of that transformation or at an earlier time. 194 The evidence of Mr Giles, following an inspection in November 2002, was that the tiles on the floor of the men's toilet were untextured. The less textured the tiles, the more slippery they would be when wet. 195 Prior to 1993, AS1657:1985 contained specifications for concrete floors, metal plate floor and grated floors. It appears that there was no specification for tiled floors. AS3661.1:1993 and AS3661.2:1994 made extensive provision with respect to slip resistance of pedestrian surfaces, including tiled floors. However, those standards were not in existence at the time when the subject tiled floor was constructed. 196 On the evidence, there had been no slip-and-fall incident in the men's toilet prior to the Plaintiff's fall on 10 September 1998. The evidence of Mr Rogers and Mr Harding, which I accept, was to this effect. Further, the Plaintiff himself who had been a tenant of the premises for five years prior to his fall had no knowledge of any slip-and-fall incident in the men's toilet. The evidence reveals that a number of offices were leased on the first floor of which the Plaintiff's business was one. The Plaintiff's evidence reveals in excess of 1,000 journeys by him into the men's toilet without incident prior to 10 September 1998. I infer a large number of other journeys were made by other males into the men's toilet prior to September 1998. There is no evidence before me that any slip-and-fall incident had ever occurred. 197 I accept the evidence of Mr Rogers and Mr Harding of the system used for cleaning the premises including the men's toilet on the first floor. The evidence reveals regular attendance by a cleaner. 198 In November 2002, Mr Giles conducted tests on the tiled floor of the men's toilet and determined that there was a significant level of slipperiness when wet. In my view, it is an open question as to whether the surface of the tiled floor was in a comparable state at that time as it had been in September 1998. I note that Denkas had sold the building in late 1998 and that HRA ceased as managing agents of the building in 1999. The involvement of those parties with the premises ceased at those times. They had no association with the building in November 2002. 199 Mr Giles acknowledged that he was in no position to say whether the tiled surface examined in November 2002 was comparable to the surface in September 1998. Assuming, for present purposes, that it was comparable, a most significant feature is the absence of any slip-and-fall incidents in the men's toilet in the years prior to September 1998 despite the large number of occasions on which persons, including the Plaintiff, used that facility. 200 On the evidence, there was no statutory or building requirement at the time when the tiled floor in the men's toilet was laid which required the use of tiles other than those used. However, it is necessary to keep in mind the actual circumstances prevailing in the premises in having regard to features of the 1993 and 1994 Australian Standards. In particular, the absence of any history of slip-and-fall incidents in the men's toilet and the absence of any complaint concerning pooling on the floor are very significant factors to be considered on the question of liability.

[227]

… [57] There is no ground in principle for imposing upon the respondents an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their prospective tenants and members of their household. The critical question is as to what is reasonable. The judgment of the Full Court, with which I agree, to the effect that there was no failure to take reasonable care, was a judgment of fact. It cannot be circumvented by an attempt to formulate the legal duty with greater particularity, in a manner which seeks to pre-empt the decision as to reasonableness." 206 Jones v Bartlett makes it clear that, in the absence of a contract supportive of a higher duty, the duty of a landlord in relation to the safety of premises does not in general require a landlord to commission experts to inspect premises to look for latent defects, nor is it a duty to make premises as safe as reasonable care can make them: Ahluwalia v Robinson [2003] NSWCA 175 at paragraph 23. In general terms, the duty of the landlord is to be determined by reference to foreseeable risk of harm and what a reasonable person would do in response to that risk. 207 An occupier is entitled to assume that most tenants will take care for their own safety: University of Wollongong v Mitchell [2003] NSWCA 94 at paragraph 33. 208 None of the justices in the majority in Jones v Bartlett went so far as to take any duty to repair beyond requiring the lessor to address defects of which he or she was aware or ought to be aware and each of their honours defined "defect" in this context to mean something more than a condition capable of causing injury: Sakoua v Williams [2005] NSWCA 405 at paragraph 8. 209 It is important to bear in mind that the circumstances of the present case are being viewed, in the words of Gleeson CJ in Rosenberg v Percival (2001) 205 CLR 434 at 441, "through the prism of hindsight". 210 In Jones v Bartlett, Gummow and Hayne JJ at 215 [171] observed that 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. In this case, the Plaintiff had a right to use the toilet as part of a tenancy of commercial office premises. 211 There is no duty to inspect premises for possible defects. Kirby J said in Jones v Bartlett at 240: "It is not always true that landlords are better able to detect defects in the demised premises than the tenants and their families and guests who occupy or visit them….. In terms of principle and logic, such inspections could not, in any case, be limited to examination of the possible defects of internal doors with glass panels. Inspections of gas, electricity, flooring, ceilings, balconies, railings and all aspects of the premises would be required by such a principle…. For a court to impose such obligations, involving duties of affirmative action, would be unusual. Necessarily, it would have a retrospective effect. In the great variety of tenancy arrangements that exist, it could work a serious injustice on particular landlords. Such landlords, until now, have been entitled to assume their duty was limited to that of taking reasonable care to avoid foreseeable risk of injury from defects of which they were on notice or of which (by appropriate inspection) they would reasonably become aware because they were obvious to a reasonable landlord or its agent." 212 Applying these statements to the present case, there is no ground in principle for imposing upon Denkas an obligation greater than an obligation to take reasonable care to avoid foreseeable risk of injury to their tenants, their employees and clients. The critical question is as to what is reasonable. This involves a judgment of fact. 213 Of importance to the resolution of this question, is the presence or absence of evidence of a history of slip-and-fall accidents in the men's toilet on the first floor at the premises. In the present case, the evidence reveals that the Plaintiff's fall was the only such accident which was known to have occurred. The Plaintiff was a long-standing tenant of the premises as at 1998. He was in a better position than most to know, directly or indirectly, of any slip-and-fall accidents which were said to have taken place in the men's toilet on the first floor of the premises. It was his evidence that he knew of no other fall except his own. 214 The evidence of Mr Rogers and Mr Harding was to the same effect. They had acquired knowledge of the premises in their capacity as managing agents and it might be expected that any falls would have come to their attention. 215 Accordingly, the evidence in the proceedings points to one fall in a five-year period, being the Plaintiff's fall on 10 September 1998. Evidence was adduced in cross-examination of the number of visits that the Plaintiff would have made to the men's toilet in the period of his tenancy between 1993 and 1998. More than one thousand trips were made by him to the area of the fall without any incident. The position is reminiscent of that in Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 at 750 where a slipping accident occurred on a staircase in circumstances where no prior accident had occurred despite a large number of uses of the relevant area by a number of persons. 216 All of this bears upon the question of foreseeability and reasonableness. In the circumstances of the present case, a factual determination is to be made as to the reasonableness of Denkas' position as landlord. There was a system for cleaning the leased premises including the men's toilet. There had been no other slip-and-fall incidents. No complaint had been made to the lessor or the agent of any pooling problem. No such problem had been detected by Mr Rogers and Mr Harding in the visits to the premises. In these circumstances, I am not satisfied, as a judgment of fact, that there has been a failure by Denkas to take reasonable steps with respect to the men's toilet.

[231]

(c) that Denkas warn the Plaintiff of any defect, disrepair, or unsafe condition that was or was likely to be dangerous, unsafe, or otherwise pose any risk of accident or personal injury or damage of any kind. 221 I have found that the Plaintiff was the tenant of Denkas at the time of the fall on 10 September 1998. The terms of the tenancy remained those clauses in the Hydrofix lease which were consistent with the tenancy-at-will between Denkas and the Plaintiff arising under s.127 Conveyancing Act 1919. I have referred earlier in this judgment to the clauses of the Hydrofix lease relating to the duties of the parties under the contract with respect to the state of the leased premises. In my view, the Plaintiff has not demonstrated any breach of contract on the part of Denkas in the circumstances of the present case. 222 In my opinion, the duty of Denkas under the contract was similar to the duty which it owed to the Plaintiff as tenant under the law of negligence. In circumstances where Denkas was unaware of any alleged pooling problem in the men's toilet and a system of cleaning was in place with respect to that facility, no basis has been demonstrated by the Plaintiff for a verdict under the claim in contract. There had been an accident-free history in the men's toilet for several years prior to 10 September 1998. The first slip-and-fall accident was that involving the Plaintiff. The premises were reasonably fit and safe for ordinary use as a men's toilet to be used by adult males in conjunction with commercial office premises: cf Jones v Bartlett at 178-180 per Gleeson CJ. 223 The Plaintiff has not demonstrated an entitlement to a verdict against either Denkas or HRA in these proceedings. 224 In my view, failure by Denkas to mop up a pool of liquid, of which it was unaware and could not reasonably be expected to have known, in the men's toilet of a building used by grown men, does not constitute a failure to take reasonable care to avoid foreseeable risk to the users of those toilet. 225 Denkas and HRA were not bound to make inspections of the premises. In any event, there was a system of cleaning which involved regular cleaning of the toilet area. The Plaintiff's alternative case against Denkas, based upon an alleged failure to have a system of inspection that would have picked up this alleged defect, is not made out in this case. 226 As I have set out in the facts above, Denkas was not aware of the pool of water in the men's toilet, nor could it be expected to have known of it. In addition to this, even if Denkas was aware of the pool of water, it did not render the property unfit for the purpose for which it was let. Gummow and Hayne JJ observed in Jones v Bartlett at 215-216: " 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 ." 227 The men's toilet was used by "quite a number of" men, several times a day (T349.49). The Plaintiff himself used the toilets where the accident occurred more than 1,000 times in the five years preceding the accident. Each of these 1,000 or so visits was incident free. No other man was injured, or even complained about the risk of injury, from any pool of water in the men's toilet. I am not satisfied that the liquid on the floor on 10 September 1998 ought be characterised as a dangerous defect. 228 The position is analogous to that described by Powell JA in Makita v Sprowles at 708 [10]: "the evidence of the lay witnesses - including that of the respondent herself - appeared to demonstrate that, notwithstanding that those of the appellant's staff who drove to work were, on a daily basis, accustomed to park on the roof-top car park and use the stairs as a means of access to the appellant's premises on the first and ground floors of the building, the only occasion upon which any of those employees was said to have slipped when doing so was that of which the respondent complained - that occasion being 2½ years after the respondent commenced to work for the appellant and almost 9 years before she left its employ - a fact which cast more than a shadow of doubt over any assertion that the stairs were slippery and that the respondent ought to have taken steps to obviate the risk of injury to its employees arising from that fact" 229 With respect to the expert evidence of Mr Giles concerning the slipperiness of the tiles, the following statements of Heydon JA in Makita v Sprowles at 750 [102] are apt: "The conclusions in Professor Morton's report ought not to be accepted uncritically. On examination, it is difficult to be convinced by them. The lay history of incident-free use of the stairs suggests that they were not slippery. That inference from that history is preferable to Professor Morton's conclusions. If the stairs were not slippery, the defendant was not in breach of its duty of care as occupier and employer. The appeal should be allowed on that ground." 230 The Plaintiff's arguments that the slippery toilet floor constituted a "concealed trap or hazard" is inconsistent with the incident free history of use of the men's toilet for several years before 10 September 1998. 231 There is a further difficulty for the Plaintiff in the way in which he puts his case. Either the Plaintiff knew of the risk of the presence of water on the bathroom floor (which he contends he did before the incident on 10 September 1998) or he was unaware of it and fell without warning. The Plaintiff says that he did not see the liquid on the tiles before he fell. It does not seem to me open to the Plaintiff to claim that he did know about the risk of the presence of liquid on the floor on the one hand, and yet claim that the pool of water was concealed such that it came as a surprise to him after he fell in it. The liquid on the floor was not, in my opinion, a concealed trap or hazard. 232 It is appropriate to consider the level of visibility of any liquid on the toilet floor. There was no obstruction to its visibility by the Plaintiff, a frequent visitor to the area. In Brodie v Singleton Shire Council (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ said (footnotes omitted): "As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ), or the surrounding area (as in Buckle , where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts." 233 In the present case, it seems to me that any liquid on the floor on 10 September 1998 ought to have been obvious to the Plaintiff. 234 Any factual enquiry as to whether the toilet floor constituted a dangerous defect and/or whether it was unreasonable not to repair it should have regard to the history of safe usage. Nothing in the history of the floor of the men's toilet suggested any hidden trap or dangerous defect in the sense discussed in Jones v Bartlett: Sakoua v Williams at paragraph 30. This was not a case where the landlord had knowledge or suspicion that made it unreasonable to fail to upgrade the floor or even to call in an expert for advice: Jones v Bartlett at 220 [188]; Sakoua v Williams at paragraph 31. 235 The alteration of building standards since the premises were built did not in itself impose a duty to upgrade the premises. Nor did such changes in standards establish in themselves that the men's toilet floor was defective in the sense of putting the lessor in breach of the duty of care within the scope recognised in Jones v Bartlett: Sakoua v Williams at paragraph 32. 236 Negligence is not established by pointing out that little expenditure might have been required to make the men's toilet floor safer. That is not the test of unreasonableness, especially in a context where any expenditure of this nature might be expected to find itself reflected in a higher rental: Sakoua v Williams at paragraph 34.

[233]

Assessment of Damages 241 It is appropriate that I address the question of damages in the event that an appeal is brought with respect to my findings concerning liability and any of those findings are overturned. I will shortly consider the issue of damages. 242 The most significant area of injury sustained by the Plaintiff relates to his left knee. The Plaintiff gave evidence of back pain and ankle pain following the fall. I accept that some back soreness and ankle soreness resulted from the fall. However, I am not satisfied on all the evidence, including that of the Plaintiff and Dr Mahony (T366.20), that the back and ankle gave rise to anything more than transient and passing pain. It is the left knee which forms the central part of the Plaintiff's claim for damages. 243 I have referred earlier in this judgment to the Plaintiff's 1983 accident and 1987 operation affecting the left knee. Although the Plaintiff said in evidence in chief that, in substance, the difficulties he had been experiencing with his left knee had settled in the 1990s, he admitted under cross-examination that he received physiotherapy in September and November 1996 complaining of pain in the left knee following prolonged standing and sitting for longer than an hour (T240-241). 244 X-rays of the Plaintiff's left knee taken on 11 September 1998 revealed moderate narrowing of the medial compartment due to osteoarthritic change. There was osteophytic lipping of the lateral compartment and degenerative change in the patella femoral joint (report of Dr Wilding, 6 March 2003, Exhibit O, page 3). 245 Dr Wilding reported that, by May 1987, there was already evidence of degenerative change in the Plaintiff's left knee (Exhibit O, page 4). The 1983 injury resulted in the development of premature degenerative change in the knee. Dr Wilding commented as follows with respect to the fall in September 1998 (Exhibit O, page 4): "When the fall occurred Mr Gaskell already had degenerative change in the left knee and even if the fall had not occurred the osteoarthritic process would have continued to progress and he would ultimately have required a total knee replacement. However the fall aggravated the underlying degenerative condition and accelerated the progression of symptoms. By what time frame the progression of symptoms was accelerated is difficult to state but on the balance of probabilities I would estimate that his symptoms were probably accelerated anywhere between 2-4 years. I can be no more specific than that." 246 The radiologist's report with respect to the x-ray of the Plaintiff's left knee taken on 11 September 1998 stated as follows (Exhibit 15): "Slight effusion in the joint space noted. There are gross osteoarthritic changes in the knee joint and patellofemoral [sic] articulation. small [sic] corticated fragments are present at the medial and lateral margins of the joint which are probably extra synovial. No convincing recent injury or other abnormality is seen." 247 The evidence points to an aggravation of a pre-existing injury to the left knee which had already demonstrated significant degenerative change. On the medical evidence, prior to the fall in September 1998, the Plaintiff was likely to require a left-knee replacement at some time. The requirement for physiotherapy of the left knee on more than one occasion in 1996 points to ongoing difficulties being experienced by the Plaintiff before September 1998. The Plaintiff's pre-existing left-knee injury and its degenerative state must be taken into account: Wilson v Peisley (1975) 50 ALJR 207 at 209, 212. The medical evidence in this case demonstrates, in accordance with the principles in Watts v Rake (1960) 108 CLR 158 at 159, that the Plaintiff's left knee was in an advanced degenerative state flowing from the 1983 accident and that further treatment, including knee replacement was inevitable without the September 1998 fall. 248 I accept that the Plaintiff undertook a range of outdoor activities prior to September 1998. By and large, he has continued these activities although with reduced levels of exertion. I accept that the Plaintiff's ability to engage in longer bush walks was reduced as a result of the September 1998 fall, but I consider that difficulties of this type were inevitable in any event. The Plaintiff's left knee had experienced significant degenerative change and a knee replacement, according to Dr Wilding, was inevitable. The reduction in the Plaintiff's ability to undertake a range of outdoor activities must be viewed in this light. 249 It is noteworthy that the Plaintiff was able to undertake a range of activities surrounding car racing, including climbing in and out of buggies and pushing vehicles. The images depicted in the video tape (Exhibit 17) demonstrate a range of movement on the Plaintiff's part in March 2005 and demonstrates a capacity to engage in vigorous activities of this type if the Plaintiff so chooses. It is true that the images of the Plaintiff in the video tape show some limping of the left leg. This is understandable. The Plaintiff had experienced a significant knee injury more than 20 years ago which had already undergone significant degenerative change. I accept that the fall of September 1998 contributed further to the Plaintiff's limp. There is an increased level of pain which the Plaintiff experiences when carrying out tasks involving exertion of the left leg. However, the Plaintiff is able to undertake these tasks. I do not accept that the Plaintiff is unable to perform a range of domestic tasks including vacuuming and lawn mowing. There is a broad similarity between those tasks and some of the tasks visible on the video tape, including pushing a motor vehicle. 250 With respect to general damages, counsel for the Plaintiff submitted that a significant award of general damages ought be made in this case. It was submitted that there was significant pain and suffering on the Plaintiff's part and significant interference with his ability to perform a range of functions affecting his work and recreational activities. 251 Counsel for HRA submitted that the Plaintiff at best makes out a claim for a moderate aggravation of pre-existing degenerative condition of the left knee giving rise to modest general damages of no more than $10,000.00. Counsel for Denkas submitted that general damages would be in the vicinity of $5,000.00 only, or nil if the de minimis principle was applied. 252 If the Plaintiff had established liability in this case, I consider that an award of general damages in the sum of $30,000.00 ought to have been made. This sum would reflect the level of pain and suffering and interference with the Plaintiff's ability to undertake a range of activities. However, I accept the submission of the Defendants that the Plaintiff's injury ought be characterised as a moderate aggravation of a pre-existing degenerative condition of the knee. The award of general damages would reflect that finding. 253 With respect to past economic loss, counsel for the Plaintiff submitted that the sum of $75,000.00 ought be awarded to the Plaintiff (T689.25). Although it was acknowledged that the evidence revealed a level of loss in the Plaintiff's business between 1993 and 2000, it was submitted that a finding was open on the evidence that the Plaintiff had sustained economic loss resulting from his fall of September 1998. It was submitted that he had reduced mobility on work sites which he was required to visit as an engineer and that this restricted his ability to earn income. Although the Plaintiff has moved into well-paid positions in the engineering field since 2001, it was submitted on his behalf that identifiable past economic loss ought be found. 254 Counsel for Denkas and HRA submitted that the Plaintiff had not established any basis for an award for past economic loss. It was submitted that the evidence revealed a history of losses sustained in the Plaintiff's business between 1993 and 1998 with the position only improving in 2000. Thereafter, the Plaintiff sold his business and took up employment in the engineering field receiving significant income in the positions which he has occupied. It was submitted for the Defendants that there is no evidence which ought satisfy the Court, on the balance of probabilities, that the Plaintiff suffered economic loss as a result of the fall in September 1998. Although the Plaintiff asserted that he experienced difficulty in visiting work sites after the fall, the evidence does not reveal any loss flowing from such alleged difficulty. 255 The Defendants' submissions have considerable force with respect to past economic loss. I accept that the Plaintiff may have experienced some greater difficulty in visiting work sites, especially on rough ground, following the fall. The difficulty, however, is translating that difficulty into any reliable figure by way of past economic loss. The Plaintiff's business was running at a loss before the fall and had done so for several years. He cannot point to a further loss on the part of the business following the fall of September 1998. Indeed, on the evidence, the financial position of the business improved in 2000. There is nothing in the documentary evidence provided from the Plaintiff's employers since 2000, namely Connell Wagner, Maunsell and Hyder, which indicates any practical difficulty experienced by him in the performance of his duties with those employers. Accordingly, the only evidence on this issue is the evidence of the Plaintiff. 256 Doing the best I can with the available evidence, I would allow a relatively modest sum for past economic loss. On the evidence, any award of damages under this head would not exceed $15,000.00. 257 As to future economic loss, counsel for the Plaintiff submitted that the sum of $50,000.00 should be allowed for future economic loss (T689.25). The submission in support of this figure pointed to the types of difficulties which I have referred to with respect to past economic loss, namely reduced mobility at work sites. Further, it was submitted that the Plaintiff will be off work for a period of time when any knee replacement operation takes place. 258 Counsel for Denkas and HRA submitted that no award should be made for future economic loss. It was submitted that the Plaintiff was in good employment as an engineer receiving a significant salary. There was nothing in the documentary evidence emanating from his employers since 2001 pointing to any difficulties with his employment which may be referable to the September 1998 fall. It was submitted that the Plaintiff would have required knee replacement in any event and that this aspect does not assist the Plaintiff on the question of future economic loss. 259 Once again, doing the best I can, I do not consider that any significant award of damages by way of future economic loss would have been made in this case if liability had been established. The Plaintiff has a reduced level of mobility arising from the September 1998 fall. In one sense, this may have an effect upon the length of his expected working life. However, a knee replacement was inevitable at some point and this is the major factor which could affect the Plaintiff's future employment. That operation was required in any event. If damages were to be awarded to the Plaintiff, I would make some allowance for future economic loss, but I would do so by way of a buffer in a sum not exceeding $30,000.00. 260 With respect to the claim for past and future care and assistance, counsel for the Plaintiff relies upon the evidence of the Plaintiff concerning his reduced capacity to perform domestic tasks including vacuuming, dishwashing, window cleaning and lawn mowing. It was the Plaintiff's evidence that, prior to 10 September 1998, he spent a period of one-and-a-half to two hours per week undertaking some of these activities. It was submitted that an award of damages should make allowance for this claim and reliance was placed upon the report of Adrianne Howard (Exhibit Q). 261 Counsel for Denkas and HRA submitted that any award of damages in favour of the Plaintiff should make no allowance for alleged past and future care and assistance. Particular emphasis was placed upon the video-tape evidence depicting the ability of the Plaintiff to undertake a range of vigorous activities surrounding car racing. The Defendants submitted that if the Plaintiff was able to perform these activities, then the domestic activities to which reference has been made were well within his capacity. 262 On the evidence, I am not satisfied that any allowance ought be made in any award of damages for past and future care and assistance. The evidence on this issue emanates from the Plaintiff only. I accept the submission of the Defendants that the video tape demonstrates that, as at March 2005, the Plaintiff had a physical capacity to perform a range of vigorous activities. I am not satisfied, on the balance of probabilities that any award should be allowed under this head of damages. 263 With respect to out-of-pocket expenses, the parties have agreed that, if any award was to be made, a sum of $3,662.00 ought be allowed. This figure encompasses general practitioner treatment expenses ($251.00) and physiotherapy treatment expenses ($2,160.00), together with travel expenses with respect to the general practitioner ($9.00) and the physiotherapist ($1,242.00) (Exhibit V). If an award of damages had been made in the Plaintiff's favour, I would have allowed this figure. 264 Counsel for the Plaintiff submitted that future out-of-pocket expenses ought include the cost of the knee replacement operation estimated at $21,550.00. I do not accept that this item ought be included in any award in the Plaintiff's favour. The evidence indicates that this operation was required in any event and, at the highest, the fall in September 1998 accelerated the time when the operation may be needed. In these circumstances, I do not consider that this item ought be included in any damages awarded to the Plaintiff. 265 With respect to other future out-of-pocket expenses, I accept the submission of counsel for Denkas that any allowance for this item ought not exceed $5,000.00.

Gaskell v Denkas Building Services Pty Limited and Others

At a glance

Court

Decision date

Before

Source

Judgment (236 paragraphs)

Parties

Cases Cited (16)

Cited By (2)