Hoffmann v Boland

LEGISLATION CITED : Civil Liability Act 2002 Uniform Civil Procedure Rules 2005

Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 CASES CITED : Nguyen v Cosmopolitan Homes [2008] NSWCA 246 Peyton v Harting (1873) LR 9 Wickstead v Browne (1992) 30 NSWLR 1

Molly Erica Hoffmann Boland by her tutor Jason Mark Boland (Plaintiff) Hannelore Hoffmann (First Defendant / Cross Claimant) Richard Grahame Roberts trading as R Grahame Roberts (First Cross-Defendant) PARTIES : Rodney David Rowe (Second Defendant / Second Cross Defendant) David Thomas Spicer (Third Defendant / Third Cross Defendant) Vicky Anne Butler (Fourth Defendant / Fourth Cross Defendant)) Karin Brueggemann (Fifth Defendant / Fifth Cross-Defendant) Clemens Alwin Brueggemann (Sixth Defendant / Sixth Cross-Defendant)

M. Joseph SC/ R Okeefe (Plaintiff) S. Campbell SC / B. Kelleher (Defendant) COUNSEL : R. A. Cavanagh (First Cross Defendant) M. Gollan (Second Defendant / Second Cross Defendant) L. D'Alessandri (Sol) (Third to Sixth Cross Defendants)

Alex Stuart & Associates (Plaintiff) Moray & Agnew Solicitors (Defendant) SOLICITORS : Thompson Cooper Lawyers (First Cross Defendant) Hicksons (Second Defendant / Second Cross Defendant) Rankin Nathan Lawyers (Third to Sixth Cross Defendants)

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

09/297331 Molly Erica Hoffmann Boland BHT Jason Mark Boland v Hannelore Hoffmann & Ors

JUDGMENT 1 HER HONOUR: Molly Bolland sustained a traumatic brain injury as a baby when her grandmother fell whilst carrying her down some stairs. Molly is now aged four and has been left severely disabled as a result of that incident. She has brought these proceedings against her grandmother, Mrs Hannelore Hoffmann, claiming damages for Mrs Hoffmann's alleged negligence in respect of the fall. This judgment deals with three interlocutory applications in the proceedings.

Claims against Mr Roberts 2 In November last year, Mrs Hoffmann filed a cross-claim against various parties who participated in the design and construction of the relevant staircase. The cross-claim pleads three discrete cases against, respectively, an architectural designer, a builder and the timber joiners who manufactured the staircase. 3 The first application before the Court concerns the case pleaded by Mrs Hoffmann against the architectural designer, Mr Richard Roberts. Mr Roberts has moved the Court for an order under rule 13.4 of the Uniform Civil Procedure Rules 2005 dismissing the cross-claim as against him on the grounds that it discloses no reasonable cause of action. Mr Roberts accepts that the determination of that application will, in effect, also dispose of the second matter before the Court, an outstanding application by Molly Boland to join Mr Roberts as a defendant to her claim. The other parties brought into the proceedings by Mrs Hoffmann's cross-claim have already been added as defendants to Molly's claim (see my earlier judgments given 25 February 2010 and 5 March 2010). 4 It was submitted on behalf of Mr Roberts that, assuming the facts pleaded against him can be established, the claim has no prospects of success and is doomed to fail. Mr Roberts was content to assume for the purpose of his application that the existence and breach of a duty of care are reasonably arguable. Mr Roberts contends, however, that Mrs Hoffmann has no prospect of establishing that any negligence on his part was a cause of her fall. 5 It may readily be accepted that Mr Roberts' conduct does not loom as the obvious cause of Mrs Hoffmann's fall. Mr Roberts was retained as the architectural draftsman for renovations at the house in question and did provide an architectural design for an internal staircase for the house. However, it is not alleged that his was the design ultimately used when the house was built. For reasons explained below, the staircase was built to an alternative design, and it is not alleged in the pleadings that Mr Roberts had any role in the drawing of the alternative design. 6 So far as the claims against the builder (the second cross-defendant) and the timber joiners (the third to sixth cross-defendants) are concerned, the case on causation is relatively clear. The cross-claim specifically alleges that those parties were responsible for the design, construction and installation of the staircase down which Mrs Hoffmann fell. 7 Photographs of the staircase tendered at the hearing show that it is constructed of smooth timber. There is a square landing towards the top of the staircase and two ordinary steps leading down from that landing. Below those are two triangular steps (known as "winders") at which point there is a 90 degree turn in the staircase. 8 The precise mechanism of Mrs Hoffmann's fall is not specifically pleaded in the cross-claim. However, the particulars of negligence pleaded against the builder and the timber joiners disclose that the case sought to be put against those parties at trial will be that Mrs Hoffman's fall was contributed to by a number of factors including the smooth surface of the stairs, the absence of nosings or other non-slip resistance on the stairs, the presence of the winders and the absence of any handrail for at least part of the descent. 9 The case pleaded against Mr Roberts is more obscure. As already noted, he is not alleged to have drawn the design used for the staircase that was ultimately installed. Rather, it is alleged that Mr Roberts' retainer was to provide drawings suitable for the relevant construction and that he negligently designed a staircase that was not so suitable, in that the design he provided did not comply with the requirements of the Building Code of Australia. It is further alleged that the builder correctly formed the belief that the staircase as drawn by Mr Roberts was not suitable for construction, which in turn led to the installation of a staircase constructed according to an alternative design. 10 The cross-claim does not articulate the alleged causal significance, in those circumstances, of Mr Roberts' earlier provision of an allegedly deficient design. The pleading simply makes the broad allegation that Mrs Hoffmann's fall, which led to Molly's injuries, was "caused, or materially contributed to" by Mr Roberts' alleged negligence in respect of the original design.

11 For the purpose of bringing the present application, it appears to have been assumed on Mr Roberts' behalf (not unreasonably) that the case is put as follows: that, but for Mr Robert's alleged negligence in providing a non-compliant design, a staircase incorporating winders would never have been built. 12 It appears also to have been assumed on Mr Roberts' behalf that the winders caused Mrs Hoffmann's fall. It was contended in written submissions prepared on behalf of Mr Roberts that "the plaintiff's case [presumably a reference to Mrs Hoffmann] is quite specifically that she fell at the point of the winders and that the cause of her fall was the winder on which she fell". It is by no means clear to me that Mrs Hoffmann's case is confined in that way. Mr Roberts' submissions (prepared before the hearing) were based on the contents of expert reports served on him but those reports were not ultimately admitted into evidence on the present application.

13 Following my rejection of those reports, Mr Roberts was left to argue his application on the strength of the case disclosed on the pleadings. As already noted, the contention on the pleadings appears to be that the presence of the winders was but one of several features of the stairs that are alleged to have contributed to the fall. 14 Interestingly, some of the deficiencies in design alleged in the cross-claim are common to the claim against Mr Roberts and the claims against the other cross-defendants. For example, it is alleged as to each design that it failed to include slip-resistant nosings and a continuous handrail. It appears also to be alleged that each design provided for an insufficient number of risers. 15 The significance of those common allegations, in circumstances where it is not alleged that Mr Roberts' design was in fact the design to which the stairs were built, is unclear. In particular, it is not clear whether it is intended to allege that the common deficiencies are due to the adoption of aspects of Mr Roberts' design in the design ultimately used by the builder. Although the apparent commonality between the claims is intriguing, it is difficult to know what to make of those allegations in the absence of a clear articulation of their causal significance as against Mr Roberts. 16 Assuming Mrs Hoffmann's claim rises no higher than the contention that, but for Mr Roberts' alleged negligence in drawing a design that was unsuitable for construction, a staircase incorporating the features that contributed to her fall would never have been built, the case could not be described as being strong. I do not think, however, that it is liable to be dismissed summarily at this stage. 17 It is well established that the Court's jurisdiction to terminate an action summarily is to be exercised sparingly and only where the absence of a cause of action is clearly demonstrated. In bringing such an application, a defendant undertakes the burden of establishing that there is no triable issue as to some essential element of the claim: Wickstead v Browne (1992) 30 NSWLR 1 at 11F. 18 There are at least two reasons, in my view, why the claim against Mr Roberts, although it may appear weak, should not be terminated summarily. The first is that, as submitted on behalf of Mrs Hoffmann, questions of causation, apart from being notoriously complex, are best determined in the context of a comprehension of all of the surrounding facts. 19 Molly's injuries were sustained in January 2006 and her claim is accordingly governed by the Civil Liability Act 2002. It will therefore be necessary for Mrs Hoffmann to establish the two elements of causation defined in s 5D of the Act, "factual causation" and "scope of liability". 20 The first would require Mrs Hoffmann to establish that any negligence on the part of Mr Roberts was a necessary condition of the occurrence of the harm to Molly. The second would require Mrs Hoffmann to establish that it is appropriate for the scope of Mr Robert's liability to extend to the harm so caused.

21 The Court of Appeal has expressed the view that the principles embodied in s 5D are in accord with the common law: Nguyen v Cosmopolitan Homes [2008] NSWCA 246 per McDougall AJA at [70]; McColl and Bell JJA agreeing; Coastwide Fabrication & Erection Pty Ltd v Honeysett [2009] NSWCA 134 per McDougall AJA at [59]; Ipp and Young JJA agreeing.

22 I do not think the element of factual causation is manifestly unarguable in the present case. In my view, it is at least arguable that Mr Roberts' alleged failure to provide a suitable design was among the causal events that were each necessary, and together sufficient, to bring about the result that Mrs Hoffmann fell. 23 If factual causation were established, the imposition of liability would then require a process of normative evaluation which, in the case of claims governed by the Civil Liability Act, is embodied in the "scope of liability" test: Nguyen at [68]. That is a process that is critically dependent on a thorough understanding of the relevant facts. I do not mean to suggest that it could never be concluded that causation was manifestly unarguable under the Civil Liability Act but I do not think that conclusion can be reached at this stage in the present case.

24 The second difficulty facing Mr Roberts is the fact that there are other defendants to the cross-claim. Accordingly, it is necessary to have regard to the principle stated in Wickstead v Browne that "one of a number of defendants cannot be entitled to summary dismissal before trial because of evidentiary deficiencies in the plaintiff's case": at 11G. In Wickstead, the Court explained that the reason for that principle is that, at the close of the plaintiff's case, any gaps in the case against one defendant may be filled when the others go into evidence. 25 Having regard to the common alleged deficiencies in the design prepared by Mr Roberts and the design against which the staircase was ultimately built, there appears at least the possibility in the present case that another cross-defendant may put a case that reveals a stronger case on causation than is presently known to Mrs Hoffmann. 26 For those reasons, Mr Roberts' application for summary dismissal of the cross-claim against him should be dismissed. As acknowledged on behalf of Mr Roberts, it follows that Molly Boland's application to join Mr Roberts as a defendant should be allowed.

Mrs Hoffmann's answers to interrogatories 27 The third application before the Court is an application by Molly Boland for an order requiring Mrs Hoffmann to re-answer certain interrogatories. The application presumably invokes rule 22.4 of the Uniform Civil Procedure Rules 2005 (UCPR), which gives the Court power to order a party to make a further answer to an interrogatory that has not been answered "sufficiently". 28 The plaintiff's specific complaints in respect of the answers given are set out in a letter from the solicitor for the plaintiff to the solicitor for Mrs Hoffmann. Counsel for the plaintiff noted that the sufficiency of the answers objected to is to be measured by reference to the plaintiff's entitlement under rule 22.6 to tender individual answers at the hearing. The plaintiff complains that some of Mrs Hoffmann's answers defeat that entitlement in that they fail to provide a clear and direct statement in a form that can appropriately be tendered. As to others, the complaint is that Mrs Hoffmann has failed to provide an answer to the question. 29 The first complaint relates to the substance of Mrs Hoffmann's answers to interrogatories 2 and 4, which it is said do not answer the questions properly. Answer 2 is as follows: "Q2: What was the source of such lighting of the stairwell when you commenced carrying Molly Erica Boland down the stairs at the said time? A2: I had asked my daughter Susan Hoffmann to leave the light on in her room located just off the said stairs. As it was around 5.30am it was still quite dark." 30 The clear implication of the answer is that Susan Hoffmann did leave the light on as requested. Although that is not expressly stated in answer 2, so much is clear from answers 4 and 5, as follows: "Q4: What was the source of such lighting in reference to interrogatory 3 above? A4: Light from my daughter's room and early morning light through the window and glass door. Q5: When you commenced to descend the said stairs at the said time, were there any electric lights on that illuminated the stairwell? A5: Only the one from my daughter's room." 31 That being so, the question is whether the Court should enforce a more punctilious approach. 32 Although rule 22.4 is directed in terms to the sufficiency of an answer to an individual interrogatory, it is not inappropriate, in my view, to consider the sufficiency of an individual answer by reference to the form and content of all of the proffered answers. So much is effectively acknowledged in rule 22.6(2), which reflects the simple and common sense proposition that the content of one of a series of answers may sometimes be informed by the content of other answers in the series. In my view, without derogating from the entitlement of a party to tender individual answers, the task of determining the sufficiency of an individual answer may require the Court to construe the answers as a whole. 33 In determining this matter, I am also required to have regard to the overriding purpose of the rules of facilitating the just, quick and cheap disposal of the real issues in the proceedings. Although the answer to question 2 leaves an important matter to inference, I see little utility in putting a party to the expense of providing a further answer when the position is made explicit in a later answer. I see no prejudice to the plaintiff in being required to tender both answers, should she choose to rely on them. 34 I am not satisfied that further answers are required to interrogatories 2 and 4. 35 The next category of complaint relates to questions in response to which Mrs Hoffmann has given what may be characterised as an explanatory answer. The complaint is, in effect, that the answer includes more information than is permitted by the question. 36 It has previously been accepted that an answer must not include an explanation that introduces irrelevant or superfluous material such as to prevent use of the answer at trial. The authority cited in support of that principle in the annotations to rule 22.3 in Ritchie's Uniform Civil Procedure is Peyton v Harting (1873) LR 9. In that case, the Court accepted that a proper answer might be rendered "insufficient" by the inclusion of additional and irrelevant matter or impertinent excess "using the term 'impertinent' in the sense in which it is applied to Chancery proceedings". The rationale for the principle is that the additional material is such as to destroy the benefit obtainable by the other side from the interrogatory. 37 As acknowledged in the annotations in Ritchie, the principle may now be qualified by the rule that permits a party to tender part only of an answer (the reference in Ritchie at 22.3.15 is to the old rule; the present rule is rule 22.6(1)(b)). In the face of that rule, the utility of strictly enforcing the approach approved in Peyton v Harting may be doubted. Rather, in my view, the test should be whether, disregarding any "impertinent excess", the answer is unobjectionable. If so, rule 22.6 provides adequate protection for the party wishing to obtain the benefit of the answer, and the overriding purpose militates against the alternative course of making an application of the present kind. 38 Further, in my view, a complaint as to the inclusion of unnecessary explanatory material will be less compelling in the case of proceedings to be heard without a jury. 39 The first complaint alleging the inclusion of irrelevant material relates to answer 5, repeated here for convenience: "Q5: When you commenced to descend the said stairs at the said time, were there any electric lights on that illuminated the stairwell? A5: Only the one from my daughter's room." 40 The plaintiff requests that Mrs Hoffmann re-answer that interrogatory on the basis that the answer is either "yes" or "no", again invoking the principle that she is entitled to a clear and direct answer in a form that is suitable to be tendered. I do not think that Mrs Hoffmann's answer 5 does any disservice to that principle. In my view, the answer is a succinct statement of information relevant to the question posed. A bare "yes" answer would have required further explanation. I am not satisfied that a further answer is required to interrogatory 5. 41 The next complaint relates to question 7, which asks a series of questions following from the answer to interrogatory 5. On the assumption that the source of illumination of the stairs was electric lighting, question 7 asks, first, who switched on such lights. Further information is then sought as to the lights in question by reference to a diagram of the stairwell. 42 Mrs Hoffmann's answer as to who switched on the lights is simply to refer back to her answers 2 and 4, from which it is clear that the only electric light illuminating the stairs was the light left on in Susan Hoffmann's bedroom. The remaining questions decline to provide the further information sought, apparently on the basis that the light left on by Susan Hoffmann was not within the area depicted in the diagram. 43 In my view, the plaintiff's questions were not confined to any light within the area depicted in the diagram but were directed to such lights as, according to earlier answers, were said to have illuminated the stairs at the relevant time. Mrs Hoffmann should (to the extent she is able) make a further answer to question 7 by reference to the light in Susan Hoffmann's bedroom to which she has referred in answer 2. 44 The next objection is to answer 8 (and consequently answers 9 to 13). Answer 8 is as follows: "Q8: If there were no electrical lights illuminating the stairwell or stairs prior to the fall, stumble or trip at the said time, did there exist at the time of the fall, stumble or trip electric lights which had the capacity to illuminate the stairwell, or stairs, but which where (sic) not on at the time of the fall, stumble or trip? A8: My focus was on Molly and as I did not wish to disturb other members of my family, I did not look for lights in the stairwell. I adjudged the light to be sufficient." 45 The plaintiff complains that the answer to the question is "yes" or "no". The gist of the exchange is that, if there were other lights that could have been turned on, Mrs Hoffman did not attempt to find them. It is difficult to understand why the plaintiff is unhappy to have received such an answer. In any event, there is a measure of ambiguity in that and subsequent questions (9 to 13) as to whether they are directed to Mrs Hoffmann's knowledge at the relevant time or to the issue whether such lights in fact existed (see especially interrogatory 10, which assumes prior awareness of any relevant light). For that reason, I am not inclined to direct a further answer to those questions. 46 The next objection is to answer 15 (and consequently answer 17), as follows: "Q15: Throughout the time during which you were carrying Molly Erica Boland down the said stairs at the said time, did you hold onto the handrail of the stairs? A15: Yes except when I needed to let go around the Newell Post." 47 The plaintiff contends that this question had to be answered "yes" or "no". I disagree. In my view, the answer is responsive to the question. 48 Objection is taken on the same basis to answer 18 (and consequently answers 19 to 23), as follows: "Q18: Did you immediately prior to falling, stumbling or tripping down the said stairs at the said time have hold onto (sic) the handrail of the stairs? A18: I was feeling for the continuing handrail after the Newell Post." 49 It is implicit in that response that the answer to the question is "no". I do not think that the additional information was unreasonably included. However, there is force in the plaintiff's contention that she was entitled to an explicit answer "yes" or "no" in response to the question. The answer should not have omitted it. Since the answer given necessarily implies a negative answer, on balance I do not think it is necessary to order that a further answer be given, but I accept that the matter should not have been left to inference. 50 The next objection is to answer 32, as follows; "Q32: Did any of your feet slip on the stairs immediately prior to your fall, stumble or trip? A32: I have a body memory of my left foot tipping over the edge of the shortest step located in the 90 degree turn." 51 Again, the complaint is that the answer should have been "yes" or "no". I disagree. The content of the answer discloses that Mrs Hoffmann is unable definitively to say whether her foot slipped. On that basis, in my view, the question has been answered sufficiently. 52 The next objection (in relation to interrogatory 37) is another complaint that the answer should have been "yes" or "no". Answer 37 is as follows: "Q37: Whilst descending the said stairs at the said time, immediately prior to you falling, stumbling or tripping were you looking at where you were placing your feet? A37: Not specifically. I was walking downstairs slowly and carefully carrying my granddaughter as I have described, looking where I was going, and feeling for the continuation of the handrail interrupted by the Newell post. I could not do this by focussing on one aspect to the neglect of the others." 53 I do not agree that the question was necessarily amenable to a yes or no answer. However, in this case, I accept that the answer includes additional material (of the kind that might have been described as "impertinent excess" in 1873). The question is whether part of the answer is unobjectionable and able appropriately to be tendered. Although (or perhaps because) the matter is open to reasonable disagreement, in my view there should be further answer to the question. 54 The "yes or no" objection is also taken to answer 38 as follows: "Q38: Whilst descending the said stairs at the said time, immediately prior to you falling, stumbling or tripping, were you walking: (a) Quickly (b) Slowly (c) Normally A38: None of these alternatives adequately describes my manner of walking. I rely on my previous answers as a whole and in particular A36." 55 In my view, the vice in that instance was with the question, which did appear to be expressed as a multiple choice. I do not think that further answer is required. 56 The same objection is taken to answer 49, as follows: "Q49: As you descended the said stairs at the said time with the Plaintiff, were you able to see the outline of each stair before you fell, stumbled or tripped? A49: Refer A37. When it was appropriate to look at a step I could see its outline." 57 Whether or not that question is fairly amenable to a yes or no answer, I do not think the answer is a sufficient response. The answer implies that, whenever it was "appropriate" to look at a step, Mrs Hoffmann did so. However, no content can be given to that assertion, since the term "appropriate" is one of indeterminate and subjective reference. A further answer should be given to questions 49 and 50. 58 The next objection is to answer 53, as follows: "Q53: At any time prior to the fall, stumble and (sic) trip with the Plaintiff at the said time, did you ever complain to anyone concerning the safety of the stairwell? A53: Objection. The interrogatory does not relate to any matter in issue between the parties." 59 It is contended on behalf of the plaintiff that the question goes to foreseeability and duty. On that basis, the question might more appropriately have been directed to any prior knowledge or belief rather than any prior complaint. Nonetheless, I accept that the interrogatory does relate to an issue in the proceedings. A further answer should be given. It follows that interrogatory 54 should also be answered. 60 The next objections relate to interrogatories 56 and 57, as follows: "Q56: As you descended the stairwell at the said time, before you fell, stumbled or tripped, at what were you looking? A56: Objection, Oppression. Repetition. Q57: Immediately (sic) to you falling, stumbling or tripping at the said time, were you looking at the stair upon which you were about to place your foot? A57: Objection, Oppression. Repetition." 61 The plaintiffs contend that the interrogatories are not repetitious. 62 As to question 56, although it is not in the same terms as any previous question, I do not think there is any utility in requiring a further answer to the question having regard to answer 37 and the requirement to provide further answer to question 49. In my view, however, question 57 raises a discrete issue and should be answered. 63 The next objection is to answer 59. It is necessary also to consider answer 58: "Q58: What happened to the Plaintiff immediately after you fell, stumbled or tripped at the said time? A58: As I fell I clutched Molly even more tightly against me. We fell together with me holding her. I did not drop her. Molly was still securely in my arms when we landed at the bottom of the stairs but on impact my arms flew open and Molly kept going striking her head on the doorframe behind us. Q59: During your descent of the said stairs at the said time, did the Plaintiff in any way move before you fell, stumbled or tripped which caused you to lose hold of her? A59: Refer A58." 64 The plaintiff contends that answer 59 does not answer the interrogatory. The difficulty is with the ambiguity in the word "move". In my view, it is clear from answer 58 that Mrs Hoffmann and the plaintiff moved in the sense that they fell together, while Mrs Hoffmann was holding Molly. It is implicit in answer 58 that Molly did not otherwise move within Mrs Hoffmann's arms. I do not think any further answer is required. 65 Objection was also taken to answers 30, 35 and parts of 61. Those questions required answers to be given by reference to photographs. I did not understand the plaintiff to press those objections at this stage. I will hear the parties further as to those questions if necessary. 66 I make the following orders:

(1) The first cross defendant's notice of motion dated 18 March 2010 is dismissed. (2) I grant leave to the plaintiff to join Mr Roberts as a defendant to her claim. (3) In respect of the application of the interrogatories I direct the parties to bring in orders to reflect my reasons. **********

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