Houghton v Potts & Anor.

Introduction

1. On 28 December 2014 the Houghton family (Darren, Joanne and their daughter Martha) invited the Long family (Christopher, Karen and their children Bethany and Zachary (or 'Zach')) to their unit in Fairlight, NSW for some "nibbles and drinks". The families were close, and they had celebrated Christmas Day that year together.
2. The Long family arrived at the Houghton's unit at around 4 pm. Shortly before 8 pm, an accident occurred. Mr Houghton and Bethany Long fell over a balcony wall - some 2 metres to a carport roof below, with tragic consequences: Mr Houghton suffered injuries that have resulted in incomplete quadriplegia.
3. Mr and Mrs Houghton each commenced proceedings for damages alleging that the accident was due to the negligence of Anthony and Julie Potts - a liability that is alleged to derive from their ownership of the premises - and, in the case of Mr Houghton, he pursues a claim for damages for breach of contract (being the lease entered between him and Mr and Mrs Potts). Mr Houghton's claim is for the damage and loss he has suffered in consequence of the injuries he sustained, whereas Mrs Houghton's claim is for "nervous shock".
4. The proceedings were heard together, and I made an order that the evidence in one be evidence in the other.
5. How the accident occurred is the principal issue in the proceedings. The competing versions are stark. Shortly stated, Mr Houghton says that the fall occurred as a consequence of a mishap following his attempt to try and lift Bethany Long away from the balcony wall. On the other hand, Bethany Long says that the fall occurred because Mr Houghton picked her up and jokingly held her out over the balcony wall "like a baby", but he then overbalanced causing them both to fall onto the carport roof below.
6. These reasons address liability and contributory negligence only - damages having been agreed: in Mr Houghton's case at $7,875,000 (exclusive of legal costs), and in Mrs Houghton's case at $150,000 (inclusive of legal costs).
7. For the reasons that follow, I consider that each claim fails, and should be dismissed.

Background

1. A considerable number of the background facts are either admitted, or uncontroversial. In what follows I set out those matters, and they reflect my findings. (There are, however, a confined number of contested issues or issues that require further discussion, and they are separately resolved or addressed: see [46]ff, below).
2. The premises where the fall occurred are located at 67 Lauderdale Avenue, Fairlight, NSW ('the premises' or 'the property'). It is one of 3 units in the complex which form strata plan 15255.
3. At the time of the accident, the owners of the property were Anthony and Julie Potts.
4. The evidence did not establish when the strata plan was registered. However, the parties agreed upon when it was constructed: the premises, including lot 3, "was constructed between 7 November 1978 and 28 December 1979" (Joint Agreed Fact).
5. At all relevant times the strata plan was managed by Robinsons Strata Management, and they had been appointed prior to 2003.
6. Prior to purchasing the property, the defendants inspected it in early May 2014 when it was open for inspection. They also undertook a second inspection after that time.
7. At around this time, Julie Potts arranged for a strata inspection report for the strata plan by Northern Beaches Strata Inspections ('the strata report'). Northern Beaches Strata Inspections prepared a report dated 19 May 2014, and it was based upon "inspection results compiled from the records made available by the Managing Agent". The report addressed expenses that were likely to be incurred in the near future which would deplete the funds available in the administrative and/or sinking fund - namely, the replacement/resurfacing of a concrete path in the garden areas, and also work involving the removal of "old corrugated iron formwork and timber in the subfloor area of each unit". (The plaintiffs place some reliance upon this report in their arguments on breach, so the further content is addressed separately: see [52], below).
8. There is no evidence about when contracts for the purchase of the property were exchanged, but settlement took place on 4 July 2014.
9. By agreement that commenced on 3 July 2014, the defendants appointed Cunningham's Real Estate ('Cunningham's') to undertake the management of the premises on their behalf.

Issues for specific consideration

1. In addition to the above matters, there are six other matters or issues of fact that require more detailed consideration or are contested - being: (1) some further detail of the content of the strata report; (2) the terms of the lease; (3) the balcony wall; (4) the events leading up to the fall; (5) how the fall occurred; and (6) the consumption of alcohol by Mr Houghton.
2. Before I address these matters, I will identify some important principles that apply to resolving contested issues of fact. I set these out in what follows.

General principles and approach to fact finding

1. First, ordinarily the process to determine facts involves consideration of "contemporary materials, objectively established facts and the apparent logic of events": Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ). Where witnesses are recalling events from some time ago, a court will, if possible, "place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence": Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).
2. Secondly, it is appropriate as well to recall what was said in Watson v Foxman (1995) 49 NSWLR 315, 319; [1995] NSWCA 497: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
3. Thirdly, it is clear that each of the adults who were present at the time of the fall, or in the period immediately leading up to it (Mr and Mrs Houghton and Chris Long), had each consumed a quantity of alcohol and each were, to a degree, affected by it. In my view that impacts upon the reliability of their respective versions, and I have approached what they have said with a measure of caution.
4. Fourthly, evidence of independent witnesses - viz., persons who have no reason to be partisan - can be important in resolving the conflicting evidence of interested parties. That is the case here where two important witnesses can each be said to be 'independent': Senior Constable Townsend and Tracy Scott.

The strata inspection report dated 19 May 2014

1. I have earlier noted, and made findings about, the strata report: see [14], above. There are other parts of that report that are relied upon by the plaintiffs, or to which reference should be made to enable a full understanding of it. They are as follows: 1. The owners of each of the three lots were represented on the executive committee. 2. In relation to the issue of whether the scheme was compliant in relation to "Fire Safety and Work, Health & Safety Matters", the report records that it was noted in the minutes of the meeting on: 28/5/13 that no items of fire safety equipment were installed at the property therefore, annual fire safety statements were not required to be issued. It was noted also that the Owners chose not to have a safety audit undertaken. 1. The report set out a history "of major building repairs and maintenance" which included "2011/2012 - Deck and handrail works - $8,638", although there was no detail about the nature, extent and location of these works. 2. The report concluded with the following: We recommend that an inspection of the subject lot and common areas be carried out by a suitably qualified Professional to assess structural adequacy including an inspection for evidence of concrete spalling, magnesite flooring problems, water penetration and any other major building faults/defects which may not be evident in the Owners Corporation records. It should be noted that many new or near new buildings contain defects requiring rectification, details of which are not always disclosed in the records made available. An inspection should also be carried out for evidence of Termites/Borers by a suitably qualified/registered Pest Control Agent. We recommend also that appropriate enquiries be lodged with the local Government authority to determine whether there are any outstanding fire orders which may not be apparent in the records. All liability is disclaimed in respect of any third-party places reliance upon this report unless approved by Northern Beaches Strata Inspections in writing. (Underlining added, italics in original).

The terms of the lease

1. As I mentioned earlier (see [18], above), Mr Houghton entered into the lease in relation to the premises by agreement commencing on 8 August 2014. The term of the agreement was for 12 months, and so was to end on 7 August 2015. (Mrs Houghton was not a party to the lease, and so the claim in contract was only advanced by Mr Houghton).
2. The plaintiffs' written closing submissions made brief reference to three clauses within the lease (the submissions are contained par 36 and they repeat the terms of the plaintiffs' opening submissions - see par 13). Those clauses were: cll 18.1, 18.3 and 18.5 of the lease. They are in the following terms: LANDLORD'S GENERAL OBLIGATION FOR RESIDENTIAL PREMISES 18. The landlord agrees: 18.1 to make sure that the residential premises are reasonably clean and fit to live in, and 18.2 … 18.3 to keep the residential premises in a reasonable state of repair, considering the age of, the rent paid for in the prospective life of the premises, and 18.4 … 18.5 to comply with all statutory obligations relating to the health or safety of the residential premises.
3. These terms, or particular provisions within the Residential Tenancies Act 2010 (NSW), are argued by Mr Houghton to confer upon him an entitlement to sue for damages independently of the provisions of the CLA. (I deal with this issue later - see [215]ff, below: 'The claim in contract').

The balcony wall

1. When the hearing commenced, there was confined evidence about the dimensions of the balcony wall. The defendants relied upon measurements taken by Dr Thomas Gibson, consultant mechanical and biomedical engineer (the plaintiffs agreed that he is the principal engineer and director of a consulting firm Human Impact Engineering, and has a Bachelor of Mechanical Engineering degree and a Doctor of Philosophy and Biomedical Engineering degree). No evidence was served by the plaintiffs directed to this issue. (It should be noted that each plaintiff, in the statement of claim they filed, alleged that the height of the balcony wall was 820 mm: Mr Houghton's statement of claim, par 13; Mrs Houghton's statement of claim, par 14).
2. Dr Gibson undertook a measurement of the balcony wall during an inspection he undertook of the premises, including the balcony area, on 16 March 2020. The measurements taken by Dr Gibson were: the balcony wall was 860 mm high and 230 mm wide. At the base of the wall, on the inside of the balcony there is a small lip, which Dr Gibson measured as: 30 mm wide and 100 mm high. The measurements Dr Gibson took were at a location "in the vicinity of the centre of the balustrade and to the immediate left of the third vertical from the left depicted in the photograph" that was attached to his statement. In relation to the measurements, Dr Gibson said he took "3 measurements of the height and width of the balustrade including the 'lip' at the bottom of the balustrade".
3. When Mrs Houghton was called to give evidence, Mr Campbell SC sought to cross-examine Mrs Houghton to adduce evidence of measurements of the balcony that she had taken, a course that the defendants opposed. Each plaintiff sought leave to adduce further evidence from Mrs Houghton to prove that, in January 2015, she had measured the balcony wall with a tape measure, and what those measurements were. The defendants, as I have said, objected to that evidence being adduced, as no notice had been given that there was an issue about Dr Gibson's measurements nor had any notice being given by the plaintiffs that they intended to adduce this evidence from Mrs Houghton.
4. I provisionally allowed the evidence to be led, reserving the defendants' position in connection with it. Ultimately, the defendants took no objection to this evidence (it being later accepted by the plaintiffs that there was no need for there to be cross examination of Mrs Houghton about this, nor any submission made that there had been a failure to do so), and so I allowed the evidence.

The events leading up to the fall

1. In this section, I deal with, and make findings about, the evidence relating to the events leading up to the incident: the incident itself is dealt with separately in the following section: see [144]ff, below.
2. Before I do so, I consider it is appropriate to say something about the estimations of time given by some of the witnesses in and around (and about) the critical events.
3. In my view, all estimates given by the witnesses were simply that: estimates, and no more. To rely upon them as involving a degree of precision is unrealistic and does not reflect the fact that most of those involved had been consuming alcohol, the occasion was social and no particular regard was being had by any individual to the time. Thus, when it came to providing time estimates they inevitably involved an element of reconstruction in light of these matters. None of my findings on any contested issue of fact are anchored in, or based upon, any estimate of time - be it the time something might have occurred, or the time that elapsed between particular events, and matters of that kind - and to the extent that any party relied upon evidence of that kind to support a finding, I do not accept the submission(s) for those reasons.
4. To recap, slightly. There is, as I have earlier found, no issue about who was on the balcony at the time of the fall (Mr Houghton and Bethany Long), and who was not (Mrs Houghton and Chris Long). Karen Long had, at around 6 pm, left the premises as she was required to babysit the children of her neighbours at 7pm. To the extent that the plaintiffs argued (it was not entirely clear), during closing submissions, that she left at or close to 7 pm, I do not accept the submission - essentially for the reasons expressed above. My finding is that Karen Long left the premises closer to 6 pm than 7 pm. In my view, bearing in mind the accident occurred in the minutes prior to 7:59 pm, nothing turns on the precise time at which Karen Long left the premises: at a minimum she left well over one hour prior to the fall.
5. In relation to Mrs Houghton and Chris Long, the evidence varied as to what precisely they were doing at the time of the fall - but there is no doubt, and I find, that they were not present on the balcony in the moments leading up to the fall, but were inside the premises.
6. As I later explain, I find they were in the kitchen at the time of the fall: see [105], below. Following on from what I have said about "time", and the estimates of time given during evidence, above, I do not think the evidence permits a precise finding about how long it was between the time Chris Long went inside to the kitchen and the accident. In my view, having regard to the surrounding evidence, it was likely to be brief, and most likely less than a minute.

The discussion about the telescope

1. Bethany Long's evidence, in her evidentiary statement dated 28 June 2020, was that Mrs Houghton was inside "packing up and washing" and that for a period of time, present on the balcony were herself, Mr Houghton and Chris Long. During this time the three of them were discussing Mr Houghton's telescope, and the fact that they could see "ladies on the boats". Bethany Long gave a similar version to the plaintiffs' investigator, Mr Maher, in April 2015, about having such a discussion: Exhibit 3, par 7. She gave that version when cross-examined: He - before my dad left from the balcony, we were joking about the telescope, then, my dad left and Darren - we - me and Darren were joking about the telescope and the question - the statement, as I should say - was intended towards my dad, as he was joking with us previously about the telescope and Jo - throwing me off the balcony.
2. The version of Chris Long, contained in his evidentiary statement dated 28 June 2020, was that himself, Mr Houghton and Bethany Long were on the balcony "having a bit of a joke", and there was some discussion about the telescope that Mr Houghton had received and that "he could see into a lady's house across the harbour. The exchange between myself and [Mr Houghton] was not inappropriate given Bethany was present, but it was boyish".
3. Mr Houghton's evidence, contained in his evidentiary statement, was that quite "early Bethany may have been looking through my telescope", but nothing else was said by Mr Houghton about what might have been discussed. Mr Houghton said that he was "alone on the balcony", and that Bethany Long "came from inside", and she went to the balcony wall.
4. I do not accept Mr Houghton's evidence that Bethany Long "came from inside" in the way he described, but prefer (and accept) the evidence of Bethany Long and Chris Long. My finding is that Bethany Long was, and in the period leading up to the accident had always been, on the balcony and did not come from inside. I make that finding not only because I accept the evidence of Bethany Long and Chris Long, but because their evidence, and the finding that I have made, is consistent with other evidence, including: (a) Mrs Houghton's evidence that she gave in her evidentiary statement - which was to the effect that, once she left the balcony with Chris Long they "left Darren and Bethany together on the [balcony]"; and (b) with what Mrs Houghton told police which was to similar effect.

The discussion about "chucking" Bethany Long over the balcony

1. Following on from using the telescope, and discussing (and joking about) what they could see, Bethany Long said (in her evidentiary statement) that at that point she recalled Mr Houghton calling out to Chris Long "in a joking manner": "Let's chuck Bethany over the balcony." I recall Dad calling back also in a joking manner: "Yeah go ahead and throw her off." (Italics in original).
2. After this conversation, Bethany Long's evidence was that she "continued joking" with Mr Houghton after Chris Long had gone inside: and it was in the course of this exchange that the events occurred.
3. Bethany Long gave a similar version - about what Mr Houghton said - when interviewed by the investigator Mr Maher in April 2015 (Exhibit 3, par 8): Darren stood up from the chair, picked me up and called out, "Let's chuck Bethany over the balcony". He stood up from his chair and leaned over and held me like a baby and turned around and walked over to the balcony holding me like a baby over the balcony - his arms and me. Darren lost his balance and fell face first with me.
4. The plaintiffs cross-examined Bethany Long over discrete parts of a statement that she made in 2017, and tendered four paragraphs only - pars 14, 15, 21 and 22: Exhibit D. It is convenient to set that evidence out in full, albeit that it touches upon other issues of fact as well as the present one: 14. Darren's wife, Jo, then went into the kitchen to put away some plates or clean up or something. Dad left a little bit after Jo to go inside, I think to help her clean up but I was not sure where Jo was at the time. 15. Darren jokingly said to Dad words to the effect "Let's chuck Bethany over the balcony". I cannot recall if Dad said anything to Darren. 21. Dad and Jo reached down to help pull me up to the balcony and Jo called the Ambulance. 22. When Jo was on the phone to the Ambulance, Dad asked me "What happened?" I cannot recall exactly what I said but I told him that Darren had held me over the wall and then we fell. (Italics in original).
5. The cross examination was directed to establishing that her recollection of matters was imperfect. For present purposes, it need only be noted that the statement that she attributes to Mr Houghton was confirmed. I accept her evidence, which she has consistently given since when she was interviewed first by the plaintiffs' insurance investigator, Mr Maher, in April 2015.

A final comment by Chris Long

1. The third "strand" of evidence relevant to how the fall occurred raised two issues, being: 1. whether Chris Long was present on the balcony area in the short period of time leading up to the accident; and, 2. relatedly, whether he participated, or even heard, the conversation that I have found occurred that included Mr Houghton saying: "Let's chuck Bethany over the balcony".
2. I will therefore give consideration to these issues separately.
3. In essence, the position argued by the plaintiffs is that Chris Long was not present at all on the balcony in the time prior to the fall and that he had, with Mrs Houghton, been in another part of the house tending to Zach and Martha. That was, in effect, the evidence of Mrs Houghton: see her evidentiary statement at [13]-[17]. Mr Houghton's evidence was to similar effect - "Jo and Chris had gone out the back where Martha and Zach were playing …". It followed, so the plaintiffs argued, that if Chris Long was not on the balcony then, at a minimum, it negated the possibility that he was a participant in any conversation in the short period of time leading up to the accident. As a corollary, this then undercut - and caused a doubt about - any suggestion (or evidence) to the contrary. I do not accept the evidence from Mr and Mrs Houghton, nor the submissions.

Summary of findings on this 'topic'

1. By way of summary, my findings in connection with the issues presented are: (a) Chris Long was present on the balcony in the short period of time prior to the accident; (b) Chris Long then assisted Mrs Houghton in cleaning up and went into the kitchen area for that purpose, and to get another bottle of wine; (c) as he walked from the balcony towards the kitchen, Chris Long heard Mr Houghton say: "Let's chuck Bethany over the balcony"; and (d) after hearing Mr Houghton say this, again as he walked from the balcony towards the kitchen, Chris Long responded, saying: "yeah why don't you?".
2. My reasons for making these findings follow.
3. I will deal first with where Chris Long was in the short period of time leading up to the fall because resolution of that issue of fact will go some way towards disposing of the issue - viz., if Chris Long was in another location of the premises with Mrs Houghton, tending to Zach and Martha, then it would render less likely Chris Long overhearing, or participating, in the conversation that included Mr Houghton saying: "Let's chuck Bethany over the balcony".

Where was Chris Long in the moments leading up to the fall?

1. The first question, therefore, is: where was Chris Long in the short period of time leading up to the fall?
2. The evidence of Bethany Long, in her evidentiary statement dated 28 June 2020, was that Chris Long had "got up and went to go inside", and that Mrs Houghton was already inside. That is also what Bethany Long essentially said in the version she gave to the investigator in April 2015: it is not identical but sufficiently like, in my view: "Daddy and Jo went inside to clean up". And, finally, in the select parts of Bethany Long's 2017 statement that the plaintiffs tendered, Bethany Long said that Chris Long went inside "to help" Mrs Houghton clean up and, importantly, Mr Houghton said to Chris Long the words that I found that he did - viz., "Let's chuck Bethany over the balcony".
3. Bethany Long was cross-examined on this particular issue, and she gave the basis for believing that Chris Long went into the kitchen because "he brought dishes out to the kitchen"; she observed him take "maybe a beer"; and "he went from the balcony into the kitchen area, which is directly from the balcony".
4. Thus, put simply, Bethany Long has given a consistent version of where Chris Long was - viz., he was present on the balcony in the short period of time leading up to the fall - and what he went to do as the reason for him leaving.
5. I add here the following. I do not regard the difference between Bethany Long "thinking" that Chris Long went inside to help clean up, whereas Chris Long's evidence that he intended to go and fetch another bottle of wine as significant or inconsistent: there is no evidence that Chris Long expressed his intent to collect another bottle of wine, as opposed to simply forming that intent and keeping it to himself - and I do not find that he announced or said what he was intending to do in relation to getting more alcohol; my finding is he did not.
6. I have set out Chris Long's evidence, as contained in his evidentiary statement, on this issue: see [88], above. In short, his evidence was that he was present when Mr Houghton suggested that he should "chuck" Bethany over the balcony and indeed says that he, playfully and jovially, suggested that he do so.
7. According to Chris Long, after going inside, he heard Bethany Long call out "Dad!" - and he went outside onto the balcony and saw Bethany Long and Mr Houghton on what he believed to be the roof of the unit below. I am satisfied that this occurred: there was no issue raised about these facts, and they are in line with what Bethany Long described in her evidentiary statement.

Did Chris Long respond to Mr Houghton?

1. Having made the finding about where Chris Long was, the second part of this issue is whether or not Chris Long responded to the comment that I found Mr Houghton made - viz., "Let's chuck Bethany over the balcony".
2. Specifically, the question is: did Chris Long respond to what Mr Houghton said by saying (playfully) words to the effect: "yeah why don't you?".
3. I will start with the evidence in the plaintiffs' case.
4. Mrs Houghton was not, of course, in the area - so her evidence did not touch upon this issue. In relation to Mr Houghton, his evidence was largely silent about the events leading up to the fall and, when cross-examined, did not accept that there was any conversation at all involving "chucking" Bethany Long over the balcony, or anything remotely like that.
5. I turn now to address the evidence in the defendants' case.
6. Bethany Long's evidence, as contained in her evidentiary statement, was that her father responded to what Mr Houghton said - by more or less agreeing, jokingly, with Mr Houghton's suggestion that he throw Bethany Long off the balcony: see [82], above. She confirmed that evidence (about what Chris Long had said, responding to the statement made by Mr Houghton) when cross-examined.
7. In the version that she provided to Mr Maher, in April 2015, although setting out key parts of the version of events that I have found occurred, she did not refer to Chris Long responding to what I have found Mr Houghton said. Bethany Long was cross-examined about this, and it was put to her that she had no memory, as at April 2015, of Chris Long responding to what Mr Houghton said, but she rejected the proposition stating that she did "remember it happening".
8. Further, in those parts of Bethany Long's 2017 statement that the plaintiffs tendered, Bethany Long said: "[15]. Darren jokingly said to Dad words to the effect "Let's chuck Bethany over the balcony". I cannot recall if Dad said anything to Darren".
9. Chris Long's evidence, as contained in his evidentiary statement, I have earlier set out: see [88], above. Simply put, his evidence was that not only did Mr Houghton say the words I have found that he did, but that he responded to them. The select parts of what Chris Long told Mr Maher, in April 2015, is set out in [113], above, but they do not concern this particular issue. (To be clear, the plaintiffs did not seek to tender the complete version of that draft statement which was provided to the solicitors for the plaintiffs, as noted in Exhibit 8, but only these three paragraphs which were put into a statement of Mr Maher dated 12 October 2022).

How the fall occurred

1. This issue is, as I have said, the critical issue of fact in the case.
2. There are competing versions: one by Mr Houghton, the other by Bethany Long. Put simply, Mr Houghton says that the fall occurred as a consequence of a mishap following an attempt by Mr Houghton to try and lift Bethany Long away from the balcony wall. On the other hand, Bethany Long says that the fall occurred because Mr Houghton picked her up and jokingly held her out over the balcony wall "like a baby", but he then overbalanced causing them both to fall onto the carport roof below.
3. In my view, for the reasons which are set out in what follows, I consider the explanation for the accident is that Mr Houghton held Bethany Long over the balcony wall, and he lost his balance in the process - causing him, and Bethany Long, to fall onto the carport roof below. In short, I accept the version given by Bethany Long and I find this is how the accident occurred.
4. By way of summary, and as explained in more detail in the reasons that follow, I accept her version because: (a) it was provided contemporaneously, and thereafter consistently; (b) there are no reasons - at least none that I accept - which might tend to suggest that her recollection is erroneous; (c) I regard the evidence to be supported by the findings that I have made in relation to the events leading up to the fall (see [68]ff, above); (d) I regard the evidence, and the competing version given by Mr Houghton, as quite unlikely and I consider his evidence on this topic to be unreliable; and (e) I consider that Mr Houghton was affected to some degree, at least moderately, by alcohol that he had consumed that afternoon and that provides some explanation for the way he behaved. (I deal with intoxication later: see [191], below. That topic is also addressed in the context of the defence under s 50 of the CLA: see [257], below).
5. I will explain my reasons for the finding that I have made in this order. (The first three are dealt with in my consideration of the version of Bethany Long; the fourth and fifth are dealt with in my consideration of the version of Mr Houghton).

The version of Bethany Long

1. The version of Bethany Long provides a different, and inconsistent, explanation of how Mr Houghton came to fall over the balcony wall (summarised in [145], above, but set out and dealt with in [179]ff, below).
2. Bethany Long's version of how the accident occurred is set out in pars 13-15 of her evidentiary statement dated 28 June 2020. There she said: [13] I continued joking with Darren after Dad had gone inside. Darren then picked me up like a baby in a cradle and jokingly held me out over the balcony wall. My head was near his right shoulder as he held me with his arms cradling my shoulders/neck and legs. [14] Darren was facing the harbour and I recall I looked at him as he held me over the balcony. Darren then said "ooh ooh!". I realised that something was wrong. We then both fell onto the roof below the balcony wall. [15] The next thing I recall was standing up with Darren lying beside me on the roof below the balcony.
3. Bethany Long also gave evidence, in her evidentiary statement, that she provided this version following the accident to the police who attended. Her evidence, relating to the fact that she gave her version to police and what in fact she told the police when they attended, was as follows: [20] When I was on the couch I spoke to the Police Officers. There was more than one Police Officer and one was female. Tracy [Scott] was with me when I spoke to the Police. I told them what had happened. I told them that Darren had held me over the balcony as a joke and had fallen while holding me.
4. Senior Constable Townsend spoke with Bethany Long about how the accident occurred when he arrived at the premises. His evidence was that Bethany Long was sitting on the lounge, being attended to by ambulance officers. He took part in a conversation with Bethany Long, which included the following: [7]. …I took part in the conversation with Bethany in which she also disclosed that her dad (Christopher) and Joanne were clearing the table and had gone inside. She informed us that Darren had picked her [up] in a friendly/playing gesture and carried her towards the balcony edge as a joke. The next thing she knew she was over the edge and had fallen onto the carport… [8]. My understanding from what Bethany described was that Mr Houghton was holding her in his arms in a baby like fashion just before they fell.
5. When called to give evidence, Senior Constable Townsend expanded upon this evidence. He said that through her words or actions, or possibly a combination of them, he understood the manner in which Mr Houghton held Bethany Long to be "like you would a baby, with two outstretched arms", which he demonstrated as both arms outstretched, with his palms facing up, with the head up one end and the feet at the other. Senior Constable Townsend was not cross-examined about any of this evidence to which reference has been made in this and the preceding paragraph.

The version of Mr Houghton

1. Mr Houghton's version of how the accident occurred is set out in par 9 of his evidentiary statement dated 19 July 2017. Mr Houghton says that in the moments before the accident, Bethany came outside onto the balcony and walked towards the balcony wall. At that point, according to Mr Houghton, she had both her hands on the top of the balcony wall and was: facing the outside…leaning over the wall toward the harbour. She may have had her head over the [balcony] wall. I said to her in a friendly way, 'Don't lean over the balcony'. I got up from my chair and moved, not quickly, towards her. She turned slightly towards me and I picked her up, she facing me, by the rib cage. I was turning around towards where I came from holding Bethany still by the rib cage facing me. It was all jovial and happy, then suddenly, within a split second, I had a slight trip on the lip at the bottom of the wall and my lower left side went against the wall while I was twisting. I went over the [balcony] wall holding Bethany in my arms...
2. Mr Houghton was cross-examined about how the accident came about. There are two parts to his evidence on this topic that require consideration: (a) first, the explanation for picking up Bethany Long; and (b) secondly, the "biomechanical" explanation for how he says he (and Bethany Long) came to fall over the balcony wall.
3. It was submitted that Mr Houghton's explanation as to why he picked up Bethany should be accepted as it was plausible. In my view, it is difficult to accept why Mr Houghton apparently "picked up" Bethany Long even if she was close to the balcony wall, and possibly leaning - to some unknown degree - "over" the balcony. Mr Houghton did not give any evidence about the degree to which, apparently, Bethany Long may have been leaning over the balcony. In the evidence, set out in [179], above, no attempt was made by Mr Houghton to explain the degree to which Bethany Long may have been leaning over the balcony - all that is said is that her "head" may have been over the balcony wall. No attempt was made to clarify this when Mr Houghton gave evidence. In light of the fact that Mr Houghton spoke to Bethany Long "in a friendly way", and the way he says that he walked over to her, it does not suggest that how she was standing created an urgent imperative to act or an obvious risk of danger requiring immediate intervention by him.

The events around, and including, the accident: a summary of the findings made

1. The findings that I have made relating to the events leading up to the fall, and how the fall occurred, may be summarised as follows: 1. Bethany Long was, and in the period leading up to the accident had always been, on the balcony and did not come from inside. 2. During the afternoon, Mr Houghton, Chris Long and Bethany Long were looking through Mr Houghton's telescope and discussing, and joking about, what they could see (imaginary or otherwise). 3. Mr Houghton, Chris Long and Bethany Long were discussing and joking about these matters in the short period of time leading up to the accident - a period of time that is most likely to be measured in minutes, but it extended to (and included) the moment that Chris Long went inside to the kitchen. 4. As Chris Long moved from the balcony to go to the kitchen, Mr Houghton did, in a friendly and joking way, say the words: "Let's chuck Bethany over the balcony". 5. Chris Long responded to this by saying (playfully) words to the effect: "yeah why don't you?". 6. Chris Long had gone inside to the kitchen, most likely to clean up and to collect another bottle of wine for consumption. 7. At the time of the accident, Mrs Houghton and Chris Long were in the kitchen of the premises. 8. The kitchen was just off the balcony. 9. From the kitchen, Chris Long could not see Mr Houghton or Bethany Long, although he could hear them - still joking and laughing. 10. In a short period of time from when Chris Long went inside, measured in less than minutes, Mr Houghton picked up Bethany Long "like a baby" - with his arms outstretched in front of him, palms upwards and with her head up one end and her feet at the other - and jokingly held her over the balcony wall. 11. In the course of Mr Houghton doing so, he lost his balance resulting in he and Bethany Long falling over onto the carport roof below.

The consumption of alcohol by Mr Houghton

1. There was confined evidence given by Mr and Mrs Houghton about the consumption of alcohol on the afternoon and evening of the accident.
2. Mr Houghton's evidence was that the "plan" was to have some food and "some wine". Mr Houghton also said that "some drinks were on the table and this is where we mainly sat whilst eating and drinking" but there is no particular mention of the quantity of alcohol consumed, generally, or how much Mr Houghton consumed himself.
3. When cross-examined, Mr Houghton agreed that the type of alcohol they had consumed was as Chris Long had said in his evidentiary statement. He also said that he did not know exactly how much wine he had consumed, but he presumed "around sort of four glasses". Following that evidence the following exchange occurred: Q. When you say you presume around four glasses, does that mean you can't remember how many glasses you drank? A. Yeah, I wasn't counting.
4. In my assessment Mr Houghton, when giving evidence, sought to downplay the alcohol he had consumed and I do not consider that he is able to accurately assess how much he had consumed.
5. Mrs Houghton's evidence was also confined. She said that, when the Long family arrived, the adults "drank a bottle of Prosecco", albeit that Karen Long "drank only a small amount". After that time Mrs Houghton said that herself, Mr Houghton and Chris Long "also drank white wine".
6. When Mrs Houghton spoke with Senior Constable Townsend she told him that Mr Houghton had consumed "heaps more" alcohol than her. When cross-examined about this issue, I found Mrs Houghton's evidence to be unconvincing and particularly defensive. She sought to give a range of explanations as to what she meant by the phrase "heaps more", which I found to be implausible. I do not accept her evidence. In my view she sought to downplay the alcohol that had been consumed by Mr Houghton. Her evidence, when cross-examined, was that Mr Houghton had consumed possibly "four or five" glasses of wine.
7. The fact that I have not accepted Mr Houghton's evidence as reliable, and rejected Mrs Houghton's evidence, does not, of course, establish the opposite: Gauci v Commissioner of Taxation (Cth) (1975) 135 CLR 81, 87; [1975] HCA 54; Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640, 684 and 694; [1975] HCA 63.

Further findings about the witnesses

1. As is apparent from the above analysis, I have focused carefully upon the objective evidence and contemporaneous materials etc (Fox v Percy at [31], and the authorities referred to at [48], above) to resolve the contested issues of fact.
2. I have, where appropriate, made findings about the individual witnesses, and their reliability and, where necessary, their credibility.
3. Nevertheless, having done so, I should add that I have considerable reservations about Mrs Houghton's evidence. I was not prepared to act on her evidence unless corroborated (and I specifically accepted that other evidence) or it was against interest. That is for the following reasons. First, without intending to be unduly critical, she impressed as someone who was, when giving evidence, actively seeking to support her own case, and Mr Houghton's case. By way of illustration, this was particularly so in connection with her evidence about the statement she made to police, on the evening of the accident, that Mr Houghton had consumed "heaps more" alcohol than her. I found her evidence to be quite unsatisfactory, and the product of a person who fully understood the importance of the issue in the litigation between the parties. Secondly, I considered her to be overly adamant about any matter upon which she sought to give evidence and she was particularly convinced about the way in which the accident could not have occurred. In this sense, I consider, in line with what McLelland J said in Watson v Foxman, that the intervention of litigation, self-interest and her perceptions have intruded, even if only subconsciously. Thirdly, she was, immediately following the incident, described as "stressed" and "tearful" - both perfectly understandable responses to the situation that had unfolded - but I consider that it makes her recollections unreliable. Fourthly, on the particular issue relevant to the sequence of events leading to the accident - what she and Chris Long were doing at the time of the incident - her evidence was inconsistent with what she had told police on the evening, as I have found.
4. It is apparent, from the preceding analysis, that I have accepted Bethany Long's evidence. She was a most impressive witness, and was inherently credible and believable. Attempts were made to establish that Bethany Long's version was inaccurate and unreliable, and to impugn her evidence, which I have dealt with earlier in my reasons. One other challenge was to the effect that her evidence may have been the product of import from one or other or both of her parents: yet it is clear from Bethany's evidence, as well as her mother's evidence, that each prepared their evidence separate from the other. It should be noted that no proposition, to the contrary effect, was ultimately put to either of them, or to Chris Long.

Introductory matters

1. The plaintiffs did not seek, during submissions, to argue that if I were to find the accident occurred in the way described by Bethany Long, that the claims could succeed. The written submissions dealing with the contract claim and the claim in negligence were both based "on acceptance of Mr Houghton's version of events": plaintiffs' written closing submissions at [31] and [50]. That is, the case for each plaintiff was argued on an "all or nothing" basis.
2. In my view, based on how I have found the accident occurred, I consider the claims must fail.
3. Shortly stated, and within the analytical framework of the claim in negligence for (the alleged) breach of a duty owed to Mr Houghton as a tenant, that is because: (a) the scope of any duty of care does not extend to preventing harm of this kind; (b) no breach of duty, or want of due care by the defendants, has been demonstrated; (c) causation is absent, even assuming a breach of duty; and (d) Mr Houghton was not only himself negligent, but solely responsible for the accident.
4. Notwithstanding the conclusions that I have reached - and the way the case was argued by the parties - I will address a number of the issues under the liability "umbrella", on the basis of the facts as I have found them and (where possible to do so) on the basis of assumed (alternate) findings: Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7]; PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 at [15].
5. Mr Houghton pleaded the claim in both negligence and in contract. The conduct said to amount to a breach of duty (or argued to demonstrate the breach of contract) was threefold: first, the balcony wall was required to be 865 mm high, but was not - it was only 840 mm high; secondly, at the time of entry into the lease, the defendants should have raised the balcony wall to a height of 1 metre, but they did not; thirdly, the lip, located at the base of the balcony wall, was a tripping hazard and should have been removed. I deal with these cases (see 'Breach of duty', at [233]ff, below), but what I have identified suffices for introductory purposes.

The claim in contract

1. In relation to the claim in contract, Mr Houghton submitted that, having entered into the lease, he was entitled to advance a contractual claim (and recover damages) unaffected by the provisions of Part 1A of the CLA because, he argued, "his claim in contract is not one for damages for harm resulting from negligence". The submission, which partly picked up the language of s 5A(1) of the CLA, was not further developed and no authorities were cited to support it.
2. The nature and extent of a duty of care owed to a contractual entrant has been discussed in cases such as Watson v George (1953) 89 CLR 409; [1953] HCA 41 and Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33; [1991] HCA 23, albeit that in State Rail Authority of NSW v Schadel [2001] NSWCA 394 at [7], the Court doubted whether there were any practical differences between the claim for personal injury based in contract rather than in negligence. However, it was not argued that there was a higher - or different - duty; no submissions were made on the topic. Rather the point "raised" was merely that Part 1A of the CLA did not apply because, as I noted above, it was said that Mr Houghton's claim was "not one for damages for harm resulting from negligence".
3. In view of the limited submissions put by Mr Houghton, and the way that I have resolved the primary facts (I have found no liability of any kind arises), I will express my reasons concisely.
4. The starting point is s 5A(1) and the definition of 'negligence' in s 5 - "negligence means a failure to exercise reasonable care and skill". Negligence is thus "not a reference to the tort, but to a category of conduct, which may be an element of a cause of action in tort, in contract, under statute or otherwise…": Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 at [40]. The effect of s 5A "is that Part 1A of the Act applies uniformly to a class of claims for damage, irrespective of how the cause of action has been formulated, so long as the damage results from a failure to exercise reasonable care and skill": Paul v Cooke at [41].
5. Although, as I have said, I found that no liability arises, if liability did arise for any one or more of the alleged omissions of the defendants, then in my view the proper characterisation, having regard to what was alleged (by way of illustration), by Mr Houghton in par 20 of the statement of claim and how the case was put (see [214], above and [233], below), was that there was a "failure to exercise reasonable care and skill" (s 5 of the CLA). That is, what was put by the plaintiffs was that the defendants were obliged to make modifications to the balcony wall (and the lip), but they failed to do so.

The duty of care owed

1. The defendants accepted that, as the owners, they had sufficient control so as to owe Mr Houghton a duty of care to take such care as is reasonable to avoid foreseeable risk of injury: Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479, 488; [1987] HCA 7, whereas the plaintiffs submitted that the duty and scope was as identified in Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 at [173]-[174]. Issues relating to the scope of the duty owed by a landlord were discussed in Sakoua v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405 ('Sakoua'), particularly at [3]-[8] (Mason P, Brownie A-JA agreeing). It is unnecessary for the purposes of addressing the issue of liability in this case to undertake any detailed analysis of the scope of the landlord's duty of care, but to proceed on the basis that the duty is to take reasonable care to avoid foreseeable risk of injury, leaving the practical content of the duty to be determined by the case: Sakoua at [4].
2. The defendants submitted that any duty owed was "delimited by the expectation that users will exercise reasonable care for their own safety": Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 at [53] ('Hennessey'), citing Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45] ('Dederer'). See also Russell v Carpenter [2022] NSWCA 252 at [14].
3. In my view, and as the defendants submitted, Mr Houghton was not taking reasonable care for his own safety given the way in which I have found the accident to have occurred. As I have found, the accident occurred solely because he failed to do so (see [253], below). In those circumstances no breach of any duty arises nor does the scope of any duty of care extend to preventing harm of this kind: Hennessey at [53].

Introduction: general principles

1. On the question of breach of duty, this involves a consideration of ss 5B and 5C of the CLA, informed by some common law principles that feed into the statutory criteria.
2. By those provisions, breach of duty of care occurs unless the defendants knew or ought to have known of the risk, the risk was not insignificant, and the defendants failed to take precautions which a reasonable person in its position would have taken: s 5B(1) of the CLA. The reasonableness of precautions depends on the probability that the harm would occur if care were not taken, the likely seriousness of the harm, the burden of taking precautions to avoid the risk of harm, and the social utility of the activity that creates the risk of harm: s 5B(2) of the CLA.
3. A number of general, well-established, principles should also be noted. First, the question of breach arises only after identifying the risk of harm that materialised. It is only once the risk has been correctly identified that the Court can assess, in accordance with s 5B of the CLA, what a reasonable response to it would be: Dederer at [59]-[61] (Gummow J); Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 at [126] (Hayne J). More recently, it "has been said that the formulation of risk of harm should identify the 'true source of potential injury' … and the 'general causal mechanism of the injury sustained'…": Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183 at [22]; Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 at [43]. Here, in my view the risk was of a person suffering injury by falling over the balcony wall. That is what the defendants submitted, and that characterisation is not dissimilar to the way that Mr Houghton identified it in his statement of claim (there it was alleged that the risk of harm was of him "falling over the balcony wall": par 26 (a)).
4. Secondly, the exercise to be undertaken in determining whether the defendants have a liability to the plaintiffs is one of foresight, not hindsight. The reason for the focus being a prospective one was explained by Hayne J in Vairy v Wyong Shire Council (at [128]) in the following way: If, instead of looking forward, the so-called Shirt calculus is undertaken looking back on what is known to have happened, the tort of negligence becomes separated from standards of reasonableness. It becomes separated because, in every case where the cost of taking alleviating action at the particular place where the plaintiff was injured is markedly less than the consequences of a risk coming to pass, it is well nigh inevitable that the defendant would be found to have acted without reasonable care if alleviating action was not taken. And this would be so no matter how diffuse the risk was - diffuse in the sense that its occurrence was improbable or, as in Romeo, diffuse in the sense that the place or places where it may come to pass could not be confined within reasonable bounds.

The case for the plaintiffs

1. The case for the plaintiffs was that the defendants were in breach of the duty of care owed to the plaintiffs in the following ways: 1. First, there was a requirement for the balcony wall to be 865 mm high, and it was not. 2. Secondly, at the time of entry into the lease with Mr Houghton, the defendants should have raised the balcony wall to a height of 1 metre. 3. Thirdly, the lip (located at the base of the balcony wall) was a tripping hazard, and should have been removed.
2. I do not accept that breach of duty has been established in any of these ways.
3. It is a requirement, in order to establish negligence, for a plaintiff to demonstrate that a defendant either knew, or ought to have known, of the risk of harm; a risk that is either known, or is a risk which the defendant ought to have known, is foreseeable: s 5B(1)(a) of the CLA.
4. In this case I am satisfied that the defendants did not know of any risk of harm associated with, or arising out of, the balcony wall (including the lip). Although they are the owners of the property, their involvement with it, prior to it being leased to the Mr Houghton, was limited. As I have earlier found, they visited the property, prior to purchasing it, on two occasions only and, following settlement, on only one occasion with the leasing manager from the managing agent. The evidence of Mr Potts, which I accept, was that he did not consider the balcony wall at any time to be a hazard. The evidence of Julie Potts, which I also accept, was to the same effect. (Neither of them, I should add, were cross-examined).
5. Furthermore, I do not consider that, acting reasonably, they ought to have known of any risk associated with, or arising out of, the balcony wall (including the lip). I make this further finding for the following reasons: 1. First, there was nothing that self-evidently suggested that the balcony wall, by reason of its height, was defective. That is, there was nothing in the condition of the balcony wall that, in my view, would be sufficient to put an individual on notice that further action is or may be required, or that it constituted a danger. On one view of it, it was 5 mm lower than what is alleged to have been required at the time of construction. A difference of that kind is, I find, imperceptible. I add: even if I were to accept that the height of the balcony wall was 840 mm (which, to be clear, I have not) my finding is still the same. 2. Secondly, Mr Houghton himself did not consider the balcony to pose any particular risk: "I had no reason to suspect the balcony or any other part of this townhouse apartment presented any unusual risks". Having regard to the fact that Mr Houghton resided at the premises for nearly five months, he was well-placed, in my view, to make that assessment. And he was better placed than the defendants were - having lived there for nearly five months, whereas the defendants had only attended the premises on limited occasions. 3. Thirdly, the conduct of the plaintiffs, the Long family and the defendants is, in my view, inconsistent with any of them being on notice about a risk created by height of the balcony wall, or that it constituted in some way a danger: each of these families had entertained on the balcony or, in the case of the Long family, attended there on multiple occasions. 4. Fourthly, Senior Constable Townsend, who attended the premises on the evening shortly after the accident, gave evidence, which I accept, that the balcony wall "looked like an average balcony wall"; that is, to his observation it looked unremarkable. In my view this evidence is significant because I considered Senior Constable Townsend to be an impressive witness based upon the way and manner in which he gave evidence (as well as being independent). Furthermore, the evidence given by him was in response to a leading question put to him when cross-examined - a cross examination that sought to elicit a concession by Senior Constable Townsend that he considered the balcony wall to be "very low" - to be clear, a concession that Senior Constable Townsend did not make. 5. Fifthly, it was not suggested that there were well-known or notorious guidelines relating to "balcony walls" that evidence what, acting reasonably, the defendants should have known.

Specific statutory defence: ss 5G, 5H and 5I of the CLA

1. The defendants have raised a number of statutory defences under Part 1A of the CLA: namely, ss 5G, 5H and 5I.
2. The defendants have pleaded that the risk of harm alleged, was an obvious one within ss 5F and 5G of the CLA. Where the risk of harm is obvious, there is no duty to warn a person of it: see s 5H(1) of the CLA. Put another way, it provides a defence to any claim based on a failure to warn where the risk of harm was an obvious risk. Thus, even if the defendants established the risk of harm was obvious, it would only negate a duty to warn of that risk. The plaintiffs do not, however, advance a case based upon a failure to warn. In those circumstances it is unnecessary to address the provisions further and both parties accepted that this was so.
3. The defendants also raised s 5I ('No liability for materialisation of inherent risk'), but that defence was not pressed during final submissions.

Contributory negligence

1. Section 5R of the CLA deals with the 'standard of contributory negligence' and the principles applicable.
2. Under s 5R of the CLA, the question is whether Mr Houghton's conduct in the circumstances giving rise to the accident constituted a departure from him exercising a reasonable standard of care for his own safety: T and X Company Pty Ltd v Chivas [2014] NSWCA 235 at [4]. The Court applies an objective test to the facts and circumstances of the case (s 5R(2)(a)), including what the plaintiff knew or ought to have known at the time: s 5R(2)(b); Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 at [217]; Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 at [269]. If contributory negligence is established, then the Court is obliged to apportion liability under s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW): Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 at [47]-[48]; Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No.2) [2016] NSWSC 1123 at [99]; Libra Collaroy Pty Ltd v Bhide at [272].
3. On the facts as I have found them, I consider Mr Houghton's conduct to constitute a significant and overwhelming departure from him exercising reasonable care: it was he who picked up Bethany Long, held her over the balcony wall and lost his balance in doing so.
4. I consider, and find, Mr Houghton to be solely responsible for the accident, with the result that the claim (and that of Mrs Houghton) is defeated: s 5S of the CLA.

The statutory regime

1. Section 50 of the CLA deals with the consequence of a person being intoxicated at the time that the person sustained their injury. Intoxication is defined, relevantly, as a "reference to a person being under the influence of alcohol...": s 48 of the CLA.
2. Relevantly, s 50 provides as follows: "(1) This section applies when it is established that the person whose…injury…is the subject of proceedings for the recovery of damages was at the time of the act or omission that caused the…injury…intoxicated to the extent that the person's capacity to exercise reasonable care and skill was impaired. (2) A court is not to award damages in respect of liability to which this Part applies unless satisfied that the…injury….is likely to have occurred even if the person had not been intoxicated. (3) If the court is satisfied that the…injury…is likely to have occurred even if the person had not been intoxicated, it is to be presumed that the person was contributorily negligent unless the court is satisfied that the person's intoxication did not contribute in any way to the cause of the…injury… (4) When there is a presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced on account of contributory negligence by 25% or a greater percentage determined by the court to be appropriate in the circumstances of the case. (5) …".
3. The defence under s 50 is applicable to "civil liability of any kind for personal injury damages (as defined in Part 2)…": s 47(1) of the CLA.
4. The plaintiffs submitted that s 50 was inapplicable by reason of the fact that Mr Houghton advances the claim in contract (which I have earlier dealt with); and, further, it was submitted that the provisions were simply not engaged - if I found that the accident happened in the way that Mr Houghton said it did. (The plaintiffs, it should be noted, made no submissions directed to what findings I should make in connection with the claim if Mr Houghton's version of how the accident occurred was not accepted).
5. It is, in my view, clear that irrespective of how Mr Houghton seeks to advance his case (that is, whether he seeks to pursue a claim in contract or in negligence), the provisions of Part 6 of the CLA do apply. That is the consequence of s 47(1) of the CLA. The focus of that section is upon civil liability "of any kind for personal injury damages (as defined in Part 2)…". The provisions of Part 2 of the CLA plainly apply because the claim by Mr Houghton is for "personal injury damages" (s 11), and, further, the Part "applies regardless of whether the claim for damages is brought in tort, in contract, under statute or otherwise": s 11A(2) of the CLA.

The report from Dr Dauncey dated 6 August 2017

1. In the report from Dr Helen Dauncey (consultant pharmacologist and toxicologist) dated 6 August 2017, Dr Dauncey expressed opinions essentially directed to establishing two broad propositions: first, the likely blood alcohol concentration of Mr Houghton based upon the toxicology report dated 28 December 2014 (Exhibit 8); and, secondly, the likely symptoms of intoxication that would have been experienced by a person with that blood alcohol concentration.
2. The key opinions expressed by Dr Dauncey were as follows: 1. Mr Houghton's plasma alcohol concentration at 10:50 pm (referred to in the toxicology report as: "Collected Time") was "32 mmol/L (ethanol level 0.15)". 2. Mr Houghton's blood alcohol concentration (BAC) at 10:50 PM "would have been 0.13%g". 3. Allowing for the delay in blood collection, Mr Houghton's "blood alcohol content when he fell was likely to have been about 0.187g% but it is possible it was as low as 0.157g% or as high as 0.205g%". 4. If Mr Houghton's BAC at 10:50 pm was 0.13%g, then it was estimated that Mr Houghton "would have consumed alcohol between 3 pm and 7:30 pm equivalent to about 18 standard drinks or about 2 bottles of wine". 5. Mr Houghton, with a BAC that reached a peak of "about 0.187g% would have impaired his memory to some extent and he would probably have been unable to recall with any precision what he'd consumed". 6. A person with a BAC of "about 0.187g%" would be "expected to have caused serious impairments", including significant cognitive impairment, diminished ability to concentrate, and impairment of motor coordination and balance. 7. Mr Houghton was likely to have been "severely impaired physically, mentally and behaviourally by alcohol when he fell".
3. Dr Dauncey largely confirmed these opinions in her oral evidence. I accept them. In my view, based upon Dr Dauncey's evidence, Mr Houghton was most likely significantly impaired by his alcohol consumption. Dr Dauncey gave evidence about why it would not be necessarily apparent to those around him to have observed symptoms of intoxication, and they include: (a) that the adults around him - specifically Mrs Houghton and Chris Long - had also been consuming alcohol, which tends to diminish the likelihood about either of them necessarily observing anything; (b) the evidence did not suggest that Mr Houghton moved significantly from being seated on the balcony area at any time, or at any times, during the course of the afternoon and early evening leading up to the fall - which tended to diminish, according to Dr Dauncey, any outward sign of intoxication, as next explained; and (c), as Dr Dauncey noted, the physical symptoms of intoxication only become apparent once "a task becomes complex", and that visible impairment due to intoxication may not be apparent, for those that are tolerant, or in connection with "simple tasks".

Discussion and consideration

1. As is apparent from s 50(1) of the CLA, there is a need to establish intoxication - as defined - so as to connect the cause of the injuries to the person's impairment of their capacity to exercise reasonable care and skill; and if it is so demonstrated, then the section applies.
2. The section has been construed as referring to "the act or omission that directly caused the" injury, and that the word "directly", should be "equated with 'proximate'": Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 at [40]. Thus, as Brereton JA explained in State of NSW v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 at [123]: …as s 50(1) makes clear, it directs attention to the act or omission that caused the injury, being the direct (or proximate) cause of the injury, and so is concerned with the effect of intoxication at the time of the act or omission that caused the injury, rather than antecedent intoxication which may have resulted in the plaintiff being in the circumstances in which the injury occurred.
3. In my view, accepting that the accident occurred in the way that I have found and based upon the evidence of Dr Dauncey (and the findings I have made in relation to her evidence), this section is satisfied. That is because, the level of intoxication (and its consequent effect on Mr Houghton) can readily explain, not only the engagement by Mr Houghton in the very act of holding Bethany Long over the balcony wall, but his subsequent loss of balance when he had done so.
4. If it is established - and I have found that it is so established - that there is 'intoxication' in the relevant sense, and s 50(1) is satisfied, the next step involves consideration of whether or not the injury is likely to have occurred "even if the person had not been intoxicated": s 50(2) of the CLA. If the Court does not make this finding, then the Court is "not to award damages".
5. The plaintiffs made no submissions in connection with the findings that should be made, in relation to s 50, if the finding was that the accident occurred in the way described by Bethany Long, but only on the basis of the version propounded by Mr Houghton (submissions at [49]). Coupled with the evidence from Dr Dauncey, what Mr Houghton did was not the act of a person exercising control. In my view, as the defendants submitted, but for the intoxication this act would not have occurred. I am satisfied it would not. This was, as the defendants argued, what Mr Houghton more or less agreed.

The plaintiffs' objections to Dr Dauncey's report

1. It is appropriate at this point to address the objection taken by the plaintiffs to the report from Dr Dauncey. The plaintiffs submitted that the "totality of the report should be rejected", because it was argued (a) that it was not shown that Dr Dauncey was an "expert" with "specialised knowledge"; and, (b) the report failed to comply with rule 31.27(1)(a) of the Uniform Civil Procedure Rules (the 'UCPR').
2. Following argument during the trial on 13 October 2022, I admitted into evidence, subject to any particular part of the report over which objection was taken, Dr Dauncey's report. At that time, I indicated that I would give my reasons in the final judgment. These are those reasons.

The plaintiffs' argument

1. The plaintiffs argued that the report was inadmissible because it was not apparent from the report that Dr Dauncey had specialised knowledge and, relatedly, there had been a failure to comply with rule 31.27(1) of the UCPR which, so the plaintiffs argued, was "fatal" to its admissibility.
2. The admissibility of Dr Dauncey's opinion is governed by s 79 of the Evidence Act. By s 79(1), if "a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge". The phrase "specialised knowledge" is not defined in the Evidence Act, but the phrase is not restrictive: Adler v Australian Securities & Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131 at [629]. It is "knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience": Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [21].
3. On the plaintiffs' application that the report be rejected, the defendants tendered Dr Dauncey's CV (Exhibit VD 1). That CV ultimately became an exhibit in the proceedings (Exhibit 9). The plaintiffs did not seek to cross-examine Dr Dauncey on the voir dire or indeed to challenge her expertise in any way. Furthermore, it is important to note that, the defendants having tendered her CV, the plaintiffs did not make a submission that Dr Dauncey did not have "specialised knowledge". I find that she undoubtedly does. As the CV states: 1. Dr Dauncey is a consultant pharmacologist and toxicologist. She has a Bachelor of Pharmacy Degree and a Doctor of Philosophy Degree in pharmacology. Dr Dauncey's PhD research "investigated the effects of alcohol and marijuana, alone and in combination, on psychomotor performance and mood". 2. Dr Dauncey has evaluated the effects of "known dose of alcohol on behaviour, performance ability and mood changes in more than 750 people" and has also carried out "several studies which measured the blood alcohol concentrations achieved after known doses of alcohol and the rate of elimination of alcohol from the body, including a study of the factors which may influence this rate". 3. Dr Dauncey has published papers describing her findings, and presented that data at international conferences. 4. Dr Dauncey's experience "covers the effects of alcohol and drugs, both legal and illegal, on skilled performance, driving skills, mood and behaviour and their role in accidents of all kind". 5. Dr Dauncey's expertise extends to the ability to "interpret drug concentrations found in body fluids and provide an expert opinion on pharmacological issues such as drug effects, side-effects, rational use…".

Consideration

1. Even if the rule operated in the way that the plaintiffs argued that it did, I regard it as a clear case where I would give whatever leave necessary to dispense with compliance with the rule (and I do so), for the following reasons. First, Dr Dauncey is plainly an expert with specialised knowledge in the area of pharmacology and toxicology with particular expertise, and specialised knowledge, in connection with the effects of alcohol on, inter alia, mood and behaviour of individuals and in interpreting scientific data in connection with these matters. And her report self-evidently is directed to issues that relate to her specialised knowledge. I do not accept that the plaintiffs could, in any way - irrespective of whether they had her CV or not - reasonably have formed the view that this was not her area of expertise. She did after all, identify herself as a pharmacologist with a PhD, and then gave a range of opinions on the various issues relating to alcohol and the role that it may have played in the accident causation. In fact, as I have noted above, the plaintiffs did not in fact contest the proposition that she did have "specialised knowledge" in the ways that I have identified. Secondly, the report was served in September 2017 and, some five years later, the plaintiffs raised the objection for the first time: the usual order for hearing required objections to be notified by each side, but the plaintiffs did not serve any objections (nor did they comply with my directions to do so) - it was explained that to do so might allow the defendants to "fix it up". I regard it as quite unjust, and inconsistent with the requirements under ss 56 and 58 of the Civil Procedure Act 2005 (NSW), to raise the objection in those circumstances. Thirdly, and related to the second matter, I regard the point taken by the plaintiffs to be inconsistent with the modern way in which litigation is required to be conducted in this Court, as explained over 20 years ago in Nowlan v Marson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [23]-[31]. Finally, the plaintiffs were offered an opportunity to consider securing their own expert, during the course of argument dealing with this objection, but elected not to do so. No possible injustice arises as a consequence of having made a considered decision not to secure their own expert once I had ruled as I did.

Introduction: general principles

1. Mr Houghton is required to prove causation and bears the onus of proving any fact relevant to the issue of it: ss 5D and 5E of the CLA. The causation enquiry requires Mr Houghton to prove factual causation (s 5D(1)(a) of the CLA) and scope of liability (s 5D(1)(b) and s 5D(4) of the CLA).
2. Factual causation is determined by the 'but for' test; that is, "but for the negligent act or omission, would the harm have occurred?": Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [45]. As French CJ, Hayne and Kiefel JJ explained in Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, causation is "to be approached by applying common sense to the facts of the particular case" (at [43]). It may also be "useful" to apply the "but for" test - that is, to ask whether Mr Houghton's injury would have occurred "but for" the breach of duty of care (at [56]). Or, in other words, whether compliance with the duty of care would have prevented the injury.
3. Turing to normative causation (ss 5D(1)(b) and 5D(4) of the CLA), in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14] the High Court explained that a: determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.
4. The defendants submitted that neither factual, nor normative, causation was established.

Causation: discussion and consideration

1. In relation to normative causation, the defendants argued that normative causation is absent because the injury is not "fairly to be regarded as within the risk created by the negligence": Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 at [106]. The plaintiffs did not address the issue at all, presumably on the basis that the case was argued by them as "all or nothing".
2. Given the way in which I have found the accident has occurred, I do not consider that causation of any kind (including, if it be required in connection with any claim in contract, causation at law) has been demonstrated. In relation to normative causation, the facts presented (and found) fall outside any 'established class' (Wallace v Kam at [22]) and thus application of precedent does not support normative causation. Further, the purpose and policy of the law in this area is to hold those in control of premises responsible for their condition and for any reasonably foreseeable injuries to those entering them. It is not to hold those to account for acts of the kind that I have found occurred.
3. In any event, I am not satisfied that factual causation is demonstrated. On the findings that I have made, the plaintiffs did not put any submission that causation could be established. In my view it is not. Even on the plaintiffs' case, in my view the plaintiffs have not demonstrated causation.
4. In relation to factual causation, the defendants further argued that in relation to the balcony wall, there is no evidence that raising the height of the balcony wall "would have made any difference" - such that factual causation has not been demonstrated. These submissions are directed to the case as advanced by the plaintiffs, and on the version of Mr Houghton - which I will next consider.
5. In a case where it is alleged there has been a failure to act - relevantly here to alter the height of the balcony wall - the factual causation enquiry involves consideration of a counterfactual hypothesis - viz., how the taking of the action would have averted the loss or damage which Mr Houghton in fact suffered: Hennessey at [93]-[96].
6. In my view, Mr Houghton (again, assuming for present purposes that the accident occurred in the way that he said it did) has failed to demonstrate causation, for the following reasons.

The limitation defence and Part 3 of the CLA: Mrs Houghton

1. A limitation defence was pleaded by the defendants, but no submissions (written or oral) were directed towards it. The defence was not pressed by the defendants in final submissions.
2. The parties confirmed, during oral submissions, that no issue arose in connection with the provisions in Part 3 of the CLA ('Mental harm'), and Mrs Houghton's claim.

Orders

1. In proceedings 2016/144762, I make the following orders: 1. Judgment for the defendants. 2. Order the plaintiff to pay the defendants' costs of the proceedings.
2. In proceedings 2019/75534, I make the following orders: 1. Judgment for the defendants. 2. Order the plaintiff to pay the defendants' costs of the proceedings.

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