Jankovic v Owners - Strata Plan 21894 - [2017] NSWDC 199 - NSWDC 2017 case summary

District Court of NSW|2017-07-17

Judgment Introduction Part A - Liability The Plaintiff's Case as Pleaded The Plaintiff's Case as Opened The Plaintiff's Case in Final Addresses The Defendant's Case Facts Not Disputed The Evidence The Plaintiff Zvjezdan Arcaba Slavka Cupac Boris Arcaba (Boris) Elvis Tavares The Plaintiff's Submissions The Defendant's Submissions General Principles re Liability The CLA Provisions Burden and Onus of Proof Analysis The Pleaded Claim (a) Inspecting the subject flight of steps (b) Illuminating the subject flight of steps (c) Inspecting the state of illumination of the subject flight of steps (d) Inspecting such of the lights and light fittings as illuminated the subject flight of steps (e) Repairing such of the lights and light fittings as illuminated the subject flight of steps (f) Replacing such of the light bulbs as illuminated the subject flight of steps (g) Warning the plaintiff of the state of illumination of the stairwell The Broader Claim of Breach Contributory Negligence Part B - DAMAGES Past Treatment Expenses Future Treatment Expenses Past Domestic Assistance Future Domestic Assistance Summary of Assessment of Damages ORDERS

The Plaintiff's Case as Pleaded

The plaintiff alleged that she was walking down a flight of stairs between the third and second floors of the Premises when she was injured.
In paragraph 5 of the Statement of Claim filed 18 March 2016, the plaintiff stated: 5. Some of the lights positioned near the subject flight of steps were missing and/or not functioning and/or were faulty and accordingly the illumination was inadequate for the purpose of enabling a person to safely walk from the third floor to the second floor of the premises.
This was said to give rise to a hazard, creating a risk of harm, namely, stumbling down the steps in the dark.
It was further pleaded that the plaintiff left unit 66 (on the third floor) on 3 April 2013 and proceeded to walk down the flight of steps. Paragraph 11 of the Statement of Claim reads: 11. As the plaintiff was walking down the subject flight of steps, a light went out and she stumbled in the darkness and fell and she was thereby injured.
It was pleaded by the plaintiff that the injury was caused by the negligence of the defendant in its failure to take precautions set out in paragraph 12 of the Statement of Claim namely: Particulars of precautions (a) inspecting the subject flight of steps; (b) illuminating the subject flight of steps; (c) inspecting the state of illumination of the subject flight of steps; (d) inspecting such of the lights and light fittings as illuminated the subject flight of steps; (e) repairing such of the lights and light fittings as illuminated the subject flight of steps; (f) replacing such of the light bulbs as illuminated the subject flight of steps; (g) warning the plaintiff of the state of illumination of the stairwell.
It was said that a reasonable person in the position of the defendant would have taken those precautions.
It is sufficient, for present purposes, to note that the defendant denied that it was liable and raised a number of matters under the Civil Liability Act. Contributory negligence was also pleaded by the defendant on the following bases: 1. failing to take any or any reasonable case for her own safety; 2. exposing herself to an obvious risk; 3. attempting to negotiate the stairs in the absence of adequate lighting (which is denied); 4. failing to keep a proper lookout.

The Plaintiff's Case as Opened

Counsel for the plaintiff told the Court that the plaintiff had visited her mother-in-law in a block of units at the Premises. He stated that the plaintiff had collected her infant daughter from the mother-in-law's unit, Unit 66. It was dusk. It was getting dark. The plaintiff was escorting her daughter down the first flight of steps from the third level down to the second level. The plaintiff's case was that there was only one light functioning on level 3, although there were two fitted to the ceiling.
Counsel for the plaintiff said that the plaintiff's evidence would be that neither of the lights on the middle level (level 2) were working but that she was unable to say whether the lights below level 2 were operating or not.
As the plaintiff was descending the steps between level 2 and level 3, the bulb fitted to the only light which was illuminating her path blew and she was plunged into darkness. She stumbled and fell, suffering injuries.
The Court was told that the plaintiff would be calling evidence from several witnesses who would describe the state of the stairs. "It is the plaintiff's case that they were chronically poorly lit and had been for a considerable time and that it was only since the accident that steps had been taken to remedy the problem in the stairs" [T6.15-18].

The Plaintiff's Case in Final Addresses

Counsel for the plaintiff began by restating part of his opening in final addresses concerning the chronically poorly lit premises.
Further, in final addresses, the following exchange took place: His Honour: So your primary submission on liability is that the defendant was liable by reason of its failure to inspect and repair the lighting system in the common area of Block 6? Thompson: Yes, your Honour. His Honour: That's the only basis upon which you would put the case? Thompson: Yes, and that is evidenced by the fact that there was a chronic failure to maintain those lights. [T218.5-14].

The Defendant's Case

The defendant's case was that the lighting system in place was adequate and the most likely cause of the plaintiff being on the staircase without lighting was that the lights had turned off automatically. There were two switches on each level which, when pressed, turned the lights on for five minutes.
In terms of the allegation of negligence against the defendant, its position is that its duty as an occupier was discharged by putting in place a system of maintenance and repair which was reasonable so as to ensure the proper operation of the lighting system.
As for the operation of the lights in the common area, the defendant's position is that a period of five minutes after activation is sufficient and, in any event, there was no evidence in the plaintiff's case which would contradict such a finding.

Facts Not Disputed

The following facts were either not in dispute or inarguable on the evidence. I make the following factual findings: 1. the plaintiff was born in 1975 and is currently 42 years of age; 2. the plaintiff's first daughter, XX, was born in January 2005 and is currently 12 years of age; 3. the plaintiff's second daughter, XX, was born in mid-2009 and is currently approximately eight years of age; 4. as at 3 April 2013, the plaintiff's mother-in-law lived in Unit 66 at the Premises; 5. she lived there with her husband (now deceased) and her son, Zvjezdan Arcaba, the plaintiff's brother-in-law; 6. the Premises was one of six blocks of units located at 142 Moore Street, Liverpool; 7. unit 66 was located on the third floor; 8. the Premises were accessed via a door at ground level depicted in Exhibit B, photograph B; 9. there was a short set of stairs which led to the first floor; 10. there were three levels of apartments, each floor containing four apartments, there being two apartments at each end of a corridor which contained the staircase joining each of the three floors; 11. on 3 April 2013, the plaintiff's youngest child was visiting her grandmother in unit 66; 12. sometime late in the afternoon, the plaintiff returned to the Premises to collect her daughter; 13. she was driven to the Premises by her husband to whom I will refer to as Boris, to avoid confusion with his brother, also a witness; 14. the plaintiff left unit 66 in the company of her youngest child and her brother-in-law, Mr Arcaba; 15. Mr Arcaba was leaving the unit to take garbage downstairs; 16. When they left unit 66 the common area on level 3 was lit; 17. Mr Arcaba and the plaintiff's daughter were walking ahead of the plaintiff; 18. after the plaintiff began descending the flight of stairs from level 3 to level 2, the light located between the two doors to enter the units opposite unit 66, went out; 19. after that light went out, the plaintiff fell down the remaining stairs; 20. at the same time as the plaintiff was descending the stairs at the Premises, the sister of her father-in-law (Slavka Cupac) was ascending the stairs having arrived at the Premises to visit her brother; 21. after the fall, the plaintiff was assisted by at least Mr Arcaba and Ms Cupac to the ground level; 22. upon reaching the ground level, the plaintiff was placed in the company of her husband and they left the Premises; 23. other features of the Premises relevant to the question of liability include: 1. a fluorescent light is fitted externally and above the main entrance door on the ground level. This is shown in Exhibit B, photograph B; 2. that, before reaching the main set of stairs, there are two smaller sets of stairs leading from the ground level to the landing on level 1. These are shown, in part, in Exhibit B, photograph 1; 3. on each floor there were two light switches located between the doors of each of the units at either end of the floors; 4. for level 1, for example, the light switches can be seen in photographs 3 and 4 of Exhibit B. Photograph 3 shows the light switch between units 55 and 56. Photograph 4 shows the light switch between units 57 and 58; 5. this pattern of the placement of the switches between unit doors carries through the building on all three levels; 6. by pressing on the light switch, all of the lights in the common area of the Premises turn on; 7. that meant that if all lights were operational the light switch would turn on the lights at the ground level, two lights on each of the first, second and third levels.
There was considerable dispute as to whether the lights at the Premises were working and indeed whether there were light switches in place. To the extent necessary, those issues will be determined below.

The Evidence

In the course of analysing the evidence, I have made comments about any inconsistencies or other factors which caused concern regarding reliability when giving reasons below. The comments are emphasised by italics. Those are the matters I have relied upon in my findings as to reliability.

The Plaintiff

The plaintiff told the Court that her mother-in-law had lived in unit 66 at the Premises from 2009 to 2016. Surprisingly, the plaintiff had only visited her mother-in-law on two occasions at that location. Once when they moved in 2009 and the next when the accident occurred in 2013.
The plaintiff had taken her daughter to visit her mother-in-law and had left her daughter there with other children. When she returned to collect her daughter, the plaintiff told the Court that it was still daylight and "it was sort of in between afternoon and evening". She agreed with the proposition that it was dusk. The plaintiff was at the unit for about 30 minutes before leaving.
The management of the photographic evidence was initially confusing. Ultimately, the photographs in Exhibit B were substituted with a different set of photographs, a sub-set of the photographs initially relied upon. The 18 photographs which ultimately formed part of Exhibit B (under tab 7) were taken on 2 September 2015, although there was considerable confusion even as to that matter. In the end, the photographs were limited in use to demonstrate the physical layout of what was depicted in the photographs. They were not evidence of the state of the Premises at the time of the plaintiff's fall.
The plaintiff identified unit 66 by reference to a photograph which became MFI 2. It is the same photograph as is marked 17 in Exhibit B.
Unit 66 is entered by the doorway on the left hand side, through a screen door.
The photograph also depicted a flight of stairs on the left hand side which led from the third level to the second level at the Premises.
The plaintiff gave evidence that the light closest to unit 66 (depicted in the photographs) was not working on the day of her accident. When asked what other lights were available on the 3rd floor, the plaintiff stated that there were two others. "One was already not working and the other had basically turned off" [T16.21]. The use of the words "turned off" is at odds with the plaintiff's evidence that the light bulb blew and more consistent with the light simply switching off in accordance with the time mechanism.
As the plaintiff left the unit, Mr Arcaba and her daughter were walking about 1 to 2 metres in front of her. The plaintiff was asked as to when she was proceeding down the stairs whether she remembered whether there was any light functioning on the second level. Her answer was confusing. She stated: The one behind me wasn't working and the one in front of me wasn't working. This one down below wasn't working. [T16.45].
She was then again asked whether she recalled whether any of the lights down below her were working. Her response was "down below, yes. The entry is right down at the bottom" [T16.49].
Clarification was sought by the questioner with the effect that the plaintiff's evidence as I understood it was that the light at the base of the stairs from level 3 to level 2 was not working and as for the rest of the lights, she did not know [see T17.10].
The plaintiff was asked what happened as she was going down the stairs. Her response was "so basically the light had died and I fell down the stairs because it was all dark, because it all became dark" [T17.19]. She said that the light above her "had basically burst" [T17.22] and there was no other electric lighting illuminating the stairs that she was walking upon as "they weren't working" [T17.26]. It is not clear what other lights she had in mind.
The plaintiff said that "I fell because it became suddenly dark and … "[T17.36]. She fell from the middle of the staircase towards the end of the staircase hitting the right side of her face on the hand rail. She came to rest towards the end of the staircase and was unable to stand. She collapsed. The plaintiff said that it was an "extremely heavy fall and everything was hurting me" [T18.25].
The plaintiff said that she was assisted by Mr Arcaba and a lady who came to assist. That turned out to be Ms Cupac, a family member with whom the plaintiff, Mr Arcaba and Boris were not acquainted. There were also quite a few other people gathering. The plaintiff sat on the staircase and was then taken to her husband's car. She said that "everything was hurting me, I had a lot of difficulties with walking".
The plaintiff was cross-examined about the accident. She told the Court that her daughter was with her mother-in-law all day, seemingly at odds with her evidence-in-chief. She stated that she dropped her daughter off at dusk and when she returned to collect her daughter "it was already night" [32.16]. That was clarified, in part, by a subsequent answer when she stated that when she arrived at the Premises it was dusk, by the time she left it was night [T32.20].
The plaintiff stated that she left her daughter there "because there were also other children there as well. So there was, there were children from the other sons, so she wanted to stay with them" [T32.31]. Mr Arcaba, who also lived in unit 66, said that the plaintiff's daughter was the only child there that day.
When the plaintiff first went to the Premises on the day of the accident to drop her daughter off, it was not necessary to activate any lighting because it was during the day and light. There was enough daylight to see the stairs as she took her daughter up to unit 66.
When she returned, it was dusk, just before evening. She said that the other children had left the Premises before the plaintiff returned to collect her child.
Again, in a somewhat inconsistent response, the plaintiff said that when she returned to collect her daughter it was not necessary to turn on the lights in the common area "because it was still daylight" [T34.6]. When questioned, she stated "yeah, but night comes around quite quickly" [T34.9]. The plaintiff said that she was at her mother-in-law's place for just a short time and was not there too long.
She then gave the following evidence: Q: They were walking in front of you. And when you were walking behind them, was the light already on? A: INTERPRETER: Yes. Q: You didn't turn the light switch on yourself? A: INTERPRETER: Yes, I did, right away. The light was turned on but not all the lights were working. (Comment: this positive assertion is contradicted by other evidence, below). Q: Did you press the light switch for the lights to turn on or were they already on? A: INTERPRETER: Yes. Zvjezdan would have turned them on before, before we left the Unit. (Comment: this answer is inconsistent to the unequivocal answer given to the previous question). Q: So I understand from that that you didn't press the light switch on yourself? A: INTERPRETER: Yes, we already pressed it before leaving. How would we be able to see anything in the dark? Q: You could see clearly when you walked from Unit 66 to the top of the stairs? A: INTERPRTER: Not really all that well. Q: You could see clearly enough to walk without any difficulty to the top of the stairs. That's right, isn't it? A: INTERPRETER: Only one, so basically only one light was working and one had basically burst so there was total darkness. Because, because two weren't working at the time, one behind me and one in front of me. Q: I want you to concentrate on the question and answer the question. You could see where you were walking clearly from the unit, your mother-in-law's unit, towards the top of the stairs before you walked down the stairs, couldn't you? A: INTERPRETER: So this is the staircase. Yeah, it's quite a long, it's quite a long walk and there was a light just above me that burst. And at that time when it burst, I was already making my way down the stairs. Q: The light that burst, was that near the top of the stairs of near your mother-in-law's unit? A: INTERPRETER: It was actually close to the steps. Q: The light outside your mother-in-law's unit was working, wasn't it? A: INTERPRETER: No. No, that light, the one in front was not working. [T34.35].
Later, in cross-examination, the plaintiff agreed that when she left Unit 66 she could see where she was walking to the top of the steps. She described how her mother-in-law came out of unit 66 to farewell them. When it was put to the plaintiff that she did not see Mr Arcaba turn on the light switch, in the common area, the plaintiff's response was "we always turn them on". He turns them on, my children turns them on; you automatically just turn them on" [T38.30]. This does not permit a finding as to who it was that turned on the lights to the common area.
She was then asked whether when she left Unit 66, the lights were on in the stairwell to which she agreed. When she walked outside the unit into the stairwell the light was on. This suggests that some person other than the plaintiff turned the lights on. She agreed that she was able to see where she was walking until about half way down the stairs. She was not holding onto the handrail as "I could walk up until the time the lights went out; once the lights went out, that's when I fell" [T39.9].
She said that she fell because it was suddenly dark. I take this to mean that she fell because the light above her went out and she continued to descend the stairs, lost her footing and fell. At odds with earlier evidence, the plaintiff said that she was closer to the lower part of the stairs and that Mr Arcaba and her daughter were on the flat surface of level 2.
Again, seemingly inconsistent with an earlier answer, the plaintiff then stated that when she left unit 66 the light at the front of that Unit did not work. That evidence became clear by reference to photograph 18 which showed just that one light.
On further questioning, the plaintiff confirmed that she turned on the light on leaving the unit and agreed that the light would automatically go off after about five minutes or so after they were switched on [T32.35]. When asked whether it was possible that the lights had been turned off automatically prior to her fall, the plaintiff agreed that it was possible but maintained that the light behind her had burst.
As for level 2, the plaintiff said that there was not a light turned on below the stairs and "nor was there any place to be able to turn on the light" [T43.10]. When it was put to the plaintiff that there were light switches on each level, she said they were not all working. How she would have had knowledge of that fact without trying to turn the light on was not explained.
When the plaintiff was reminded of her evidence that there was a light working down below, the plaintiff stated that there was one working but she did not know exactly where down below it was.
In a contradictory answer, the plaintiff was asked whether any of the passers-by turned on a light and the plaintiff stated "yes, I'm sure, but there was no, but there was no light bulb" [T44.31]. How she could be sure of that fact and which light bulb she was referring to was not explored.
Further, when asked whether it was fair to say that she could not recall if both or any lights were not working on level 2, the plaintiff said that once she fell she was not well enough to remember.
The plaintiff's evidence as to the lighting was confusing and often inconsistent. That inconsistency undermined the evidence which she gave making it impossible to make factual findings on her evidence alone. Unfortunately, the situation did not much improve with the evidence of the other witnesses.

Zvjezdan Arcaba

Mr Arcaba is the plaintiff's brother-in-law and lived in unit 66 with his parents at the time of the incident. He confirmed that there were two lights in the common area on level 3 of the Premises and the same configuration existed on levels 2 and 1.
Mr Arcaba was taking the garbage out in the company of his sister-in-law and niece when the incident occurred. There was adequate lighting for him to see where he was going without any apparent difficulty.
Contrary to the evidence of the plaintiff, Mr Arcaba stated that as they were proceeding along level 3, there were not any lights on. When asked what happened to the plaintiff that night, Mr Arcaba stated "what happened is that she fell". In an attempt to shed some clarification on this part of the witness' evidence, the following exchange took place: Q: As you were taking the garbage out, you said that Biljana was behind you? A: INTERPRETER: Yes. Q: Were you aware of how far behind you she was? A: INTERPRETER: She wasn't too far away from me. Q: As you were proceeding along, you said that Biljana fell? A: WITNESS: Yes. A: INTERPRETER: Yes. Q: What makes you say Biljana fell? A: INTERPRETER: It wasn't - the steps and the conditions were not good. (Comment: this witness' first answer as to why the plaintiff fell referred to the steps and conditions in a general way). Q: Did you perceive her fall somehow? A: INTERPRETER: She fell as I was walking in front of her. Q: Where was she from your observations when she fell? A: INTERPRETER: She was behind me. HIS HONOUR: Q: How did you know that she fell? A: INTEPRETER: Because I turned around and I saw that she had fallen. (Comment: this witness made this observation without any apparent difficulty from the landing at the bottom of the steps). THOMPSON: Q: What did you see when you turned around? A: INTERPRETER: She - Biljana had fallen down the steps. Q: Where were you at the point where you turned around? A: INTERPRETER: I was down the stairs when she fell. HIS HONOUR: Q: So down which stairs, where were you in the building? A: INTERPRETER: On the third, on the third floor. [T76-77].
The morning tea adjournment interrupted this witness's evidence-in-chief. Upon resumption, the following exchange took place: Q: Now, you've said to us his Honour that Biljana fell as you were going down the stairs. A: INTERPRETER: Yes. Q: Did any event occur prior to Biljana falling on the stairs? A: INTERPRETER: No, no. Q: What was the lighting like as you were descending the stairs - sorry, as you began to descend the stairs? (Comment: it was only after being referred specifically to the lighting by the questioner that he related it, for the first time, to the fall). A: INTERPRETER: Terrible. Q: Did anything change with regard to the lighting as you were descending the stairs. A: INTERPRETER: It burst. (Comment: this is at odds with the witness' earlier evidence that the lights on level 3 were not on). Q: What burst? A: INTERPRETER: The light bulb. Q: Are you talking about a light bulb on level 3, level 2 or level 1 or somewhere else? A: INTERPRETER: No. On the third level. [T77-78].
By reference to photograph 15 in Exhibit B, the witness drew a circle in red ink around the light which he said blew. He also stated that the light in the foreground in that same photograph, close to unit 66, was not working.
Mr Arcaba told the Court that there had been problems with the lights in the Block ever since he moved in. He stated "the actual lights were never working regularly" [T80.30]. Apparently, he complained to neighbours who were owners of units in the Block. Those witnesses were not identified and not called.
Mr Arcaba was cross-examined about this experience with the lighting at the Premises. In relation to the light switches, he acknowledged that they were there "but it was almost as though we didn't have them" [T86.5]. The following exchange then occurred: Q: On the day of the accident, those light switches were on every level between the doors of the units, weren't they? A: INTERPRETER: But none of them worked. Q: When you turned on the switch or pressed the switch, you had seen the light come on on all of the levels within that unit block? A: INTERPRETER: The moment you turn it on, it turns off quite quickly. … Q: When you press the switch, the lights usually come on don't they? A: INTERPRETER: As I said before, they come on but then they go off because they weren't done properly. Q: What do you mean by that is that after a period of time the lights go off automatically. Is that right? A: Yes. Q: That's what happened when you and Biljana were walking down the stairs on the date of her accident? A: INTERPRETER: Yes. Q: The light went off. A: INTERPRETER: The light had turned off and the light bulb had burst. It burst like a bomb. [T86 - 87]. (Comment: this last answer from Mr Arcaba has the events occurring simultaneously. The random event of the bulb on level 3 blowing and the lights to the common area going off, after having been switched on).
Mr Arcaba was also critical of the hand rail adjacent to the stairs which he described as "old and it wasn't proper, it needed to be changed" [T88.7]. The relevance of that evidence is unclear as it is not said that the hand rail contributed to the fall.
Mr Arcaba was unable to say who turned on the lights as they were leaving level 3. He stated "I don't know exactly who turned it on, all I know is that in that minute and that second, it burst" [T88.45].
The following exchange then occurred in further cross-examination: Q: … sir, when as you say the light burst, did everything appear to you to go dark? A: WITNESS: Yes? A: INTERPRETER: Yes. Q: And you say there were no lights on, on level 2 when the light burst? A: INTERPRETER: Yes, that's right. Q: And there were no lights on level 1 on when the light burst? A: INTERPRETER: Yes. [T89.10-19].
The degree of coincidence required to achieve these events simultaneously raises further doubt as to the reliability of this evidence.
Mr Arcaba then told the Court that Boris came up to level 2 where she was sitting and assisted in moving the plaintiff to the car. That was done by Mr Arcaba, Boris and the other lady who, it transpired, was the aunt of Mr Arcaba and Boris. The evidence as to the involvement of Boris is at odds with the evidence of the plaintiff, Ms Cupac and Boris himself.
Mr Arcaba maintained that as they moved the plaintiff from level 2 to the ground level, they did so in complete darkness. He described carrying the plaintiff in conditions which he described as pitch black. When asked why he didn't turn the lights on, he said "they weren't working properly so they were bursting" [T93.20] (emphasis added). Further, he stated that "so the moment you press it, it automatically turns itself off". This evidence suggests that more than one light bulb burst or, alternatively, the reference to any light bursting simply means that it turned off.
Again, contrary to the evidence of the plaintiff, Mr Arcaba told the Court that Anna was the only child who visited his mother that day and that he was present at that time.
Again, contrary to the evidence of the plaintiff, Mr Arcaba said that when the plaintiff arrived at the Unit it was totally dark outside and that she stayed for about 10 or 15 minutes.
Mr Arcaba said that prior to the light bursting on level 3, there were no lights on level 1 "it was totally dark there" [T95.24]. He then stated "so basically once the light over on the third floor had burst, there was total darkness because the lighting in that whole building wasn't done properly". What this meant was never sought to be clarified.
When questioned about the automatic switch-off of the lights, Mr Arcaba maintained that "it turns off right away" [T95.45] and so the lights would stay on for "about one second" [T95.49]. This evidence is at odds with Boris who agreed that they would stay on for five minutes. This level of exaggeration was such as to render the whole of the evidence given by Mr Arcaba virtually worthless.

Slavka Cupac

Ms Cupac was the sister of the plaintiff's father-in-law, Mr Arcaba Snr. He resided with his wife in Unit 66 with their son, Mr Arcaba. Curiously, however, Ms Cupac was not known to Mr Arcaba or Boris (his brother) and they were not known to her.
On the day of the incident, she was attending the Premises to visit her brother, Mr Arcaba Snr.
She agreed that when she visited the Premises on that day, something happened. When asked what, she stated "I went forward and from what I can remember, there was a light bulb" [T99.20]. When asked where she was at the time of that event, she stated "I was already at the middle" [T99.25]. She was referring to the second level.
Ms Cupac was asked what happened when she was on the second level of the building and she stated "the light wasn't working properly. It was dark and all at once something just went boom" [T99.46]. She stated that after hearing that sound it was dark and she heard somebody say "oh my God" [T100.2].
When asked how close she was to that person when she heard those words said, she stated "not far. Maybe a couple of steps" [T100.12]. This places her in virtually the same position as Mr Arcaba and the plaintiff's daughter.
To add further confusion to the state of the evidence the following exchange occurred: Q: Before you heard the sound, do you recall that there were any lights functioning on level 2 of that building? A: INTERPRETER: Basically I saw initially was flickering and flickering and then all of a sudden it had - all at once the light was no longer there. I can't really remember but all I know is that it just went out. [T100.14-18].
No other witness gave evidence of the lights flickering.
Ms Cupac said that she and a man (unbeknown to her to be her nephew) went to the aid of the plaintiff and slowly tried to help her down. When asked where the plaintiff was when Ms Cupac first reached her, she stated "in the middle of the stairs" [T101.4]. It appeared that she thought that the plaintiff was on the stairs leading from the second floor to the first floor when Ms Cupac found her [see T101].
When clarification was sought the witness stated "I can't really remember too well". I really can't remember [T101.20].
Ms Cupac then described that she assisted the plaintiff by holding her under one arm when the other gentleman (Mr Arcaba) had got her by the other arm and they slowly took her down. She was in a seated position when first discovered by Ms Cupac. Upon reaching ground level, Ms Cupac left her with Mr Arcaba and then left the Premises without visiting her brother. She did not go back inside the Premises as "I was afraid for myself as well" [T103.1].
In cross-examination, Ms Cupac admitted that she knew Mr Arcaba but stated "I did know that man but it came to a time when I no longer recognised that man, neither him nor his mother nor his children, no one" [T104.22].
As for the lighting, the witness was asked whether she had turned on the lights on other occasions when she visited her brother. Her reply was "no I didn't feel it was necessary because there was a light on the first floor. This is the first time that it actually happened to me" [T106.15].
She then stated that "there was another light that was turned on but by the time I got to the middle of the stairs, the light had turned off" [T106.23].
Contrary to the evidence of Mr Arcaba, Ms Cupac told the Court that it was just the two of them who assisted the plaintiff down the stairs. When asked whether she saw Boris Arcaba she said that she did not.
This contradicts the evidence of both Mr Arcaba and Boris, who apparently was waiting downstairs. One would expect that they would have at least seen each other at that time.
In cross-examination, Ms Cupac confirmed that the lights on level 2 were flickering prior to going off.
Ms Cupac's evidence was confusing and inconsistent with other evidence called in the plaintiff's case.

Boris Arcaba ("Boris")

Boris attended the Premises at the time the incident occurred. Contrary to the evidence of the plaintiff as to what he did upon arriving at the Premises, he told the Court that his wife went to pick up the child and he went to Coles to buy some groceries. The plaintiff had said that Boris was in the car engaged in a long telephone conversation. She made no mention of him leaving the Premises or going shopping.
Nevertheless, he said that he first saw the plaintiff after the event right away "because I was parked right near the entrance and I could actually see the entrance and I knew something had happened" [T111.26].
Boris explained that his car was parked about five metres away from the entrance to the building so that as soon as they came out, he went to the aid of the plaintiff.
After taking his wife home, at about 10pm on the day of the incident, Boris went back to the building "to see exactly what had happened and what went wrong" [T118.35]. He also returned in the morning, the day after the incident. He said that the purpose in returning was to see why the lights were not working [T118.45].
He said that upon returning he discovered that there was a light at the entrance and on the first floor but that on the second floor nothing was working and on the third floor there was a light on the left hand side but it wasn't illuminating properly [T118-119]. Although not clear, it seems that this is a reference to the light which is said to have blown.
Boris was shown two photographs which he took the morning after the incident. They became Exhibit C. They showed a light without a cover on the second floor in between the doors to enter units 61 and 62. Later, it transpired those photographs were taken in September 2015.
He was then shown a series of 16 photographs which were duplicates of some of the photographs in Exhibit B. He said that they were taken the following day, the following morning [T119.48].
His evidence then changed and became quite confusing as to when the photographs were taken. A number of the photographs were dated 2 September 2015, more than two years after the accident.
Initially, the evidence of Boris was that photographs 2, 10, 15, 16, 17 and 18 were taken on 2 September 2015.
As I now understand his evidence, all of the photographs in Exhibit B were taken on 2 September 2015.
All of the photographs in Exhibit B were admitted on a limited basis. That is, to demonstrate the physical layout of the building on 2 September 2015. The state of the evidence would not permit any reliable inference to be drawn as to the condition of the lights or switches as at the time of the accident.
Boris was asked whether he had ever noticed any problems with the lighting in the unit block. He replied: Yes, yes, there were at times problems with the lighting, if one wasn't working, another one would be working, I didn't know exactly which ones were working and which ones weren't but in all there were problems with the lighting. [T130.31].
He was then asked whether the condition of the lighting in the unit block improved and in an answer which made little sense, Boris stated: Yeah, so although if, for example, one light bulb had died, it would be replaced but I felt like it wasn't, although it was properly serviced, it wasn't maintained properly. There were just different problems. [T130.40].
Notwithstanding the vagueness of his evidence generally, Boris was able to recall that electrical work was performed on 23 August 2014. It was a Saturday and he had gone to his parents' place to pay some bills and saw two young men working on the electrical system.
The only relevance of that evidence is that the work was undertaken about a year prior to the photographs (Exhibit B) taken by Boris in September 2015.
In cross-examination, Boris told the Court that he visited his mother on a weekly basis and was familiar with the building.
In contradiction of the evidence given by his wife, he said that on the day of the incident, they arrived at the Premises other than in daylight. He explained that when he left their house he needed to turn his car lights on. When asked whether it was about 6pm, Boris indicated that it was possibly even 7pm. When they arrived at the Premises, there was no daylight whatsoever.
Boris confirmed the lighting set up at the Premises and stated that if you pressed the button down below then all the lights (in the common area of the building) come on.
In further contradiction of the evidence by Ms Cupac, Boris stated that when he inspected the Premises the day after the accident, there was only a light on the ground floor downstairs, a left light on the first floor and a left light on the third floor and nothing else [T155.5]. That evidence also appears inconsistent with the suggestion that the left light on the third floor blew at the time of the incident.
In further cross-examination [T166] the following exchange occurred: Q: Do you recall I asked you that when you pressed the light switch all the lights in the unit block come on? A: WITNESS: Yes. Q. They stay on for five minutes. A: INTERPRETER: I, I really don't know how long they last. I guess it's according to Australian Standards. Q: You found that when you visited your mother, you pressed the light upon entering the building and were able to walk to your mother's unit without the lights going on? A: INTERPRETER: Yes.
This evidence is consistent with the evidence called by the defendant but utterly irreconcilably different to the evidence of Mr Arcaba that the light would come on and then go straight off again.
In re-examination on that question Boris was asked whether he ever had any problems with the lights turning off as he was ascending or descending the stairs in the Block and Boris denied that to be the case if he had actually pushed it (the switch).
Overall, the evidence of Boris was extremely confusing and, in many respects, inconsistent to all of the other witnesses called in the plaintiff's case.

Elvis Tavares

Mr Tavares was called in the defendant's case. He is the proprietor and director of the company called ET Strata Cleaning Pty Limited. He carries out cleaning and maintenance for different properties in the Liverpool area. He has been supplying cleaning services to the premises for about 20 years. When he first started out, his wife would occasionally come and assist. She has not assisted for some time, however, as she has a full time job.
Mr Tavares was asked how he carried out the work at the Premises. He answered: I'd go there once a week on - and do, like, vacuuming the stairwells, we checked for the lights and then foyer area down the bottom, clean the windows, and after all that's done, we just, like, go around pick up papers off the ground and, blow the driveway for leaves and all that. [T183.40].
In answer to a later question he stated: … it's exactly what we do every week, it's how it is, like, weekend and, except for like if we need to do like lawns or something then it's, it's different but everything's is exactly the same, just, we just vacuum, check the lights, and then if there's anything happens that's not normal like we can't fix, then we tell the strata to, to do something about it. [T184.20].
He went on to describe how he would enter the Block, plug in the vacuum cleaner and turn on the lights. The lights were turned on so as to see properly the job that was being done. He would activate the lights at the switch on the entry level inside the foyer.
He was asked to describe the lighting system in Block 6 (the Premises). He said that there were two buttons on every level and that once he switched it on, the lights would stay on for five minutes. That is, all of the lights from the bottom to the top. He said that if he took longer than five minutes then there are buttons which could be pressed along the way. There were two on each level.
His duties included replacing lights which were faulty. He kept lights in a garage that had been provided to him. He would take a ladder and the globes, remove the old globe and insert the new globe.
Mr Tavares had a set routine which included the inspection of light bulbs in order to determine the need for replacement. He attended the premises on a weekly basis at the time of the incident.
In cross-examination, Mr Tavares, said that if the light fittings were damaged, as might be the case after the moving of furniture, then he would notify the Strata Manager. His job did not include changing light fittings or fixing light switches. That work would be done by electricians either the day of the complaint or the next day [T188.17].
When cross-examined specifically about faulty light switches, Mr Tavares said that one switch was damaged about once in a year. He was shown Exhibit E and asked whether he had seen switches in that condition in Block 6. He denied that he had.
The evidence of Mr Tavares established that the system in place at the time of the incident involved the cleaner looking for faulty or blown light bulbs and replacing them at that time. It was not put to Mr Tavares that there was a more general problem with the condition of the electrical system in Block 6 and he was challenged about the fact that the lights would remain on for five minutes after being activated. Further, it was not put to him that the system in place was inadequate.

The Plaintiff's Submissions

The plaintiff's submissions were by way of oral address. Counsel for the plaintiff commenced his address by stating that it was the plaintiff's case that the stairs were chronically poorly lit and had been for a considerable time. He submitted that it was only since the accident the steps had been taken to remedy the problems with the stairs. It is a little unclear precisely what he was referring to in that regard, as the only remedial works done to the lighting system would appear to have been carried out before the photographs in Exhibit B were taken.
In support of the submission that the staircase was poorly lit, counsel for the plaintiff relied upon the evidence of Mr Arcaba. He did not seek to address the differences on this point between Mr Arcaba, on the one hand, and Ms Cupac and Boris on the other.
Counsel for the plaintiff was critical of the defendant's counsel for not putting to the plaintiff's witnesses that the lighting was inadequate. It was also submitted that the defendant elected not to call any evidence to say that there was nothing wrong with those lights. This is not altogether accurate. Mr Tavares gave evidence about a system which, if implemented, would see a blown globe replaced within no longer than seven days.
Counsel for the plaintiff stated "if your Honour is not satisfied as to the evidence of Boris and Mr Arcaba then the plaintiff must fail because that is the evidence of the defect in the lighting" [T216.26]. For reasons exposed below, the Court is far from satisfied as to the evidence of those witnesses.
It was submitted that "there's no issue that there was a defect in the lights that had been chronic for some time". Again, that does not fairly represent the evidence. Both Ms Cupac and Boris gave evidence that the lights would remain on for five minutes when activated. Mr Tavares gave evidence about the system of maintenance which would lead comfortably to an inference that the lights were generally operative and reasonably well maintained.
Counsel for the plaintiff then submitted: In the absence of any serious challenge to the core point around which the plaintiff's case revolves, your Honour will have no difficulty being satisfied of that, there was a chronic problem with those lights. [T216.41].
With the greatest respect, I do not agree. It is open to the Court to make its own assessment of the witnesses and their reliability. In this case, I find both to be unreliable. In particular, I consider Mr Arcaba's account to be utterly implausible. In this regard, I have in mind, amongst other things, his evidence that, when switched on, the lights would remain on for just one second.
It was submitted for the plaintiff that the failure of the single light on level 3 was not negligent except that it occurred in circumstances where the remainder of the lights in the common area to the building were not operating. Plaintiff's counsel urged the Court to find that there were no operative lights on level 2. This would require rejection of the evidence of Ms Cupac as to the one matter upon which she seemed to have a clear recollection. It may also require a rejection of the plaintiff's evidence but given her confusion this is unclear.
The plaintiff's counsel sought to dismiss the evidence of Mr Tavares on the basis that he had no recollection as to the state of the lighting at the time. Again, this misrepresents his evidence. There was an exchange between the bench and counsel for the plaintiff [at T218 - 209] as to the system in place for the inspection of the lights and the replacement of defective light bulbs. Counsel for the plaintiff was critical of Mr Tavares on the basis that he did not state in his evidence the frequency with which he would replace light bulbs. That is not consistent with the evidence as I understood Mr Tavares to say that he would inspect for faulty light bulbs whilst carrying out the cleaning of the Premises and replace any defective bulbs that day.
Finally, counsel for the plaintiff conceded that there were inconsistencies in the evidence called on the plaintiff's case which he described as "not favourable". Mr Thompson submitted that "despite the inconsistencies and the inadequacies of the evidence, your Honour, I say on balance should accept it for the reason there's just, no one challenges it at any stage".
The Court is not compelled to accept unchallenged evidence of witnesses especially where the evidence of all of the witnesses, read as a whole, bear marked inconsistencies. Another example is where the evidence is simply glaringly improbable. In the context of this case, it might be considered glaringly improbable that the bulb on level 3 blew at precisely the same moment that the other lights switched off. It is also improbable that none of the lights in the common area of the Premises operated properly.

The Defendant's Submissions

Counsel for the defendant prepared Written Submissions (MFI 9). They are quite detailed and some of the general principles referred to in that document are extracted in the reasons below. In the Written Submissions, counsel referred to some of the inconsistencies which I have identified above in the analysis of the evidence. He submitted and I agree, that those inconsistencies have the potential to render the evidence unreliable.
Counsel for the defendant invited the Court to conclude that the lights in the common area to the Premises went off automatically after the time following their activation had elapsed. I make that finding and in so doing, accept the evidence of Mr Tavares and Boris as to that matter.
As to the plaintiff's case, the defendant's counsel replied: 54. The plaintiff's hypothesis is highly improbable. It would mean the light outside unit 63 at the top of the stairs on level 3 blew or exploded, at the same time as a flickering light on the level 2 was observed by Ms Cupac to explode. Given they say there was no light from level 1 on their way to the entrance while assisting the plaintiff, it is most likely that the lights have simply turned off automatically.
I find that submission compelling for reasons which I will develop below.
The defendant's ultimate submission was that it had discharged its onus as occupier by engaging a competent contractor to undertake the task of maintenance of the light bulbs at the Premises. To the same effect but in the alternative, it is submitted that there is no proof of negligence in the maintenance of the lighting.

General Principles re Liability

The general principles of liability set out in Part 1A of the Civil Liability Act 2002 ("the CLA") apply to this case.

The CLA Provisions 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Burden and Onus of Proof

At common law, on all questions relating to the question of the liability of the defendant the burden of proof remains with the plaintiff. The CLA does not alter that position.
In the context of the facts here, the plaintiff's onus was to prove, on the balance of probabilities, that there was an act or omission committed by the defendant which, after applying legal principles, gives rise to a breach of duty of care.
The principles regarding what is required to discharge a duty on the balance of probabilities are well known. The evidence called must render a fact contended for more likely than not. As for the standard of proof required, s140 of the Evidence Act 1995 states: 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
This does not represent a departure from the general approach at Common Law, save for the articulation of the non-exhaustive list of consideration in s140(2).

Analysis

In this case, there is no issue about duty. The defendant, as the corporate entity which owned the premises and had responsibility for the care, control and maintenance owed a duty of care to the plaintiff, a lawful entrant to the Premises.
The defendant was entitled, however, to expect the plaintiff to exercise reasonable care for herself (Nepean Blue Mountains Local Health District v Starkey [2016] NSWCA 114 at [91].
The issue then is what is the act or omission relied upon by the plaintiff and does the evidence permit factual findings which makes out that matter, on the balance of probabilities.
I set out above the plaintiff's case at various stages. It started by specific allegations in the Statement of Claim and then broadened as the hearing commenced and proceeded. I have assessed the evidence on both bases.
I repeat below the "precautions" which it is alleged in the Statement of Claim the defendant should have taken: 1. inspecting the subject flight of steps; 2. illuminating the subject flight of steps; 3. inspecting the state of illumination of the subject flight of steps; 4. inspecting such of the lights and light fittings as illuminated the subject flight of steps; 5. repairing such of the lights and light fittings as illuminated the subject flight of steps; 6. replacing such of the light bulbs as illuminated the subject flight of steps; 7. warning the plaintiff of the state of illumination of the stairwell.
The plaintiff's primary case based on the pleadings is that the defendant failed to take the precautions referred to above. There was no evidence called in the plaintiff's case as to what was the system, if any. The only evidence arises from that of Mr Tavares. Boris acknowledged that there was some system in place for the replacement of light bulbs. It is clear from the evidence of Mr Tavares that the following system was in place: 1. the defendant provided Mr Tavares with a list of specifications of work required [T183.26]; 2. Mr Tavares attended the premises on a weekly basis; 3. apart from cleaning the windows, vacuuming the stairwells, picking up litter and blowing the driveway for leaves, the system also required Mr Tavares to inspect the lights [T183.40]; 4. that had been the system since he commenced work for the defendant, close to 20 years ago; 5. Mr Tavares would turn on the lights to the common area of the Premises upon arrival [T185.1]; 6. the lights would stay on for about five minutes [T185.11]. This was not challenged; 7. if there was a light out then he would come and change it [T185.41].
In cross-examination, Mr Tavares was asked questions about light fittings and light switches. It was important to draw the obvious distinction between light fittings and light bulbs, one providing illumination and the other merely a cover. In respect of damage to light fittings or light switches, Mr Tavares told the Court that he would report back to the Strata Manager and "they would normally send somebody out either that day or a day after" [T188.15].
Also in cross-examination, he was asked about damage to light covers being caused by moving and the like about which he made appropriate concessions. The mere fact that a light fitting might be damaged of course does not mean that the light bulb is not functioning.
He was also asked in cross-examination about the light switches and said that damage may occur to them maybe once a year [T191.30].
That is the evidence as to the system which the defendant had in place to provide the precautions pleaded and to guard against the risk of injury to those attending upon the Premises. There is no reason to find that the system described by Mr Tavares was not in place and followed at the time of the accident. No such proposition was put to him. In fact, in cross-examination, he confirmed that he would check that the lights were working on a weekly basis [T189].
Mr Tavares was shown a number of photographs from Exhibit B which are now known to have been taken in 2015. This evidence in relation to those matters can have no bearing upon the findings made in this case.
Against the evidence of Mr Tavares there was really no other evidence as to the system or lack thereof.

The Pleaded Claim

His evidence permits the Court to make findings in respect of the "particulars of precautions" pleaded in paragraph 12 of the Statement of Claim.

(a) Inspecting the subject flight of steps

It is clear from the unchallenged evidence of Mr Tavares that this occurred on a weekly basis. I find this to be reasonable in the circumstances.

(b) Illuminating the subject flight of steps

It is apparent from the photographs in Exhibit B that there were two lights at either end of the corridor at each level of the common property at the Premises. They were situated so as to provide illumination at the top and bottom of each of the flights of steps. I find those precautions to be reasonable.

The unchallenged evidence of Mr Tavares permits the Court to find that the lighting was inspected on a weekly basis. I accept that evidence and find that the system of inspection was reasonable.

(d) Inspecting such of the lights and light fittings as illuminated the subject flight of steps

Again, the evidence of Mr Tavares answers this complaint entirely.

(e) Repairing such of the lights and light fittings as illuminated the subject flight of steps

The unchallenged evidence of Mr Tavares is that if he found that a light was not working, upon weekly inspection, it would be replaced that same day. In relation to light fittings, they would be reported to the Strata Manager and repaired either that day or the next. I find this system of repair to be reasonable.

(f) Replacing such of the light bulbs as illuminated the subject flight of steps

Mr Tavares' evidence permits a finding that this would occur within a relatively short time of discovering that the light bulbs were not functioning. I find this system of bulb replacement to be reasonable.

(g) Warning the plaintiff of the state of illumination of the stairwell

Given the evidence referred to in respect of (a) to (f) above the need to provide any warning to the plaintiff would not arise.
Based upon this analysis of the evidence, I make the following findings: 1. that all reasonable precautions were taken to ensure that the Premises were inspected, repaired and maintained so as to ensure safety for those who visited them, including the plaintiff; 2. given the precautions taken by the defendant against a risk of harm, any such risk was not foreseeable; 3. for the same reason any such risk was insignificant; 4. I find that a reasonable person in the position of the defendant company would have taken the same precautions as those taken by the defendant or, to put in another way, would not have taken any additional precautions.
Applying the general principles concerning negligence set out in s5B of the CLA, I find that the plaintiff has failed to satisfy the Court that, on the pleaded case, the defendant breached its duty of care.
The plaintiff's claim is, however, not limited to the specifics of the pleaded case.

The Broader Claim of Breach

In both the opening and closing of the case, counsel for the plaintiff did not limit his client's prospects to the specific matters alleged. In a sense, they were truly particulars of a broader claim of breach. Counsel for the plaintiff stated "it is the plaintiff's case that they were chronically poorly lit and had been for a considerable time and that it was only since the accident that steps had been taken to remedy the problem in the stairs" [T6.15-18].
Whilst there is evidence, which in a general sense might permit the finding contended for in the broader claim of breach, the success or otherwise of the case turns very significantly upon the reliability of the plaintiff's witnesses and value to be ascribed to that evidence.
The only witnesses whose evidence advanced the case into the territory of the broader claim came from Mr Arcaba and Boris. The former lived in unit 66 and the latter visited his parents and, therefore, the Premises, on a weekly basis in the year before the accident.
The other occupants of unit 66 (Mrs Arcaba and Mr Arcaba Snr) were not called. It was apparent from the evidence of Ms Cupac that her brother (Mr Arcaba Snr) was deceased at the time of trial. The mother-in-law, Mrs Arcaba, was not called and no explanation was provided for the plaintiff's failure to do so. Leaving aside the question of any adverse inference, the failure to call Mrs Arcaba invites caution in the consideration of the evidence of Boris as to this matter.
The evidence of Mr Arcaba as to the broader case was: 1. that ever since he moved in to the Premises the lighting - "the actual lights were never working regularly" [T80.30]; 2. the light switches "weren't any good" [T86.10]; 3. in reference to the light switch, when turned on, the lights "come on but then go off because they weren't done properly" [T87.1]; 4. after a period of time the lights go off automatically [T87.5]; 5. he did not press the light switch [T93.13] because "the moment you press it, it automatically turns itself off" [T93.25]; 6. "the lighting in that whole building wasn't done properly" [T95.35]; 7. the lights would stay on for about one second after you turned them on [T95.49].
Before turning to the evidence of Mr Arcaba's brother, Boris, my view of Mr Arcaba's evidence is that it was grossly exaggerated. The manner in which he answered questions was also problematic. Rather than answer any straight forward questions in a direct manner, he was evasive and argumentative.
The only part of his evidence which I accept is: Q: What do you mean by that is it after a period of time the lights go off automatically. Is that right? A: INTERPRETER: Yes. Q: That's what happened when you and Biljana were walking down the stairs on the date of her accident? A: INTERPRETER: Yes. [T87.4 - 10].
This is also consistent with the concession made by the plaintiff in her evidence that: Q: The lights would automatically go off after about five minutes or so after you switched them on? A: INTERPRETER: Yes. Q: It's possible on the date of your accident that the lights simply turned off automatically? A: INTERPRETER: Yeah, that is possible, however I do know that the light behind me had burst. [T42.34-41].
Turning now to the evidence of Boris as to the plaintiff's broader case, he said: 1. that he visited his mother at the Premises from 2009 to 2015 [T130.24]; 2. during that time "there were at times problems with the lighting, if one wasn't working, another one would be working, I don't know exactly which ones were working and which ones weren't but in all there were problems with the lighting" [130.31]; 3. he first noticed those problems in 2012 and 2013; 4. on 23 August 2014, he noticed two electricians working at the Premises. "I saw them working on the light bulbs, I saw them working on the light switches of the whole complete electrical work" [T131.10]; 5. as to the use of the light switch, the following evidence was given: Q: Do you recall I asked you that when you pressed the light switch all the lights in the unit block come on? A: Yes. Q: They stay on for five minutes? A: INTERPRETER: I, I really don't know how long they last. I guess it's according to Australian Standards. Q: You found that when you visited your mother, you pressed the light upon entering the building and were able to walk to your mother's unit without the lights going on (this should read "off")? A: INTERPRETER: Yes. [T166.15-27]; 1. And in re-examination: Q: Did you ever have any problems with lights turning off as you were ascending or descending those stairs in that unit block? A: INTERPRETER: If I actually pushed it, no. [T166.30].
That is the extent of the evidence on the broader case. Before turning to the reliability of the evidence, I first note that in many respects the evidence was often inconsistent. In the analysis section above, those inconsistencies have been clearly identified by the use of italics. Such matters instantly raise questions as to the reliability of the evidence called by the plaintiff.
In my opinion, both Mr Arcaba and Boris were unsatisfactory witnesses. The manner in which they gave evidence, generally, was confusing. In relation to Boris, the evidence about the photographs defied any rational understanding.
In respect of the photographs, he told the Court that he took photos on three occasions, viz.: 1. at or about 10pm on the night of the accident - these were not in evidence. Some photos were produced by the plaintiff in answer to a call from the defendant but neither party sought to tender them. I do not draw any inference from that decision but I do note that the Court was deprived from having the photographs taken at the time most contemporaneous to the accident; 2. the morning after the accident in daylight - initially, Boris identified these photos as being the photos without the 2015 date on the back. This evidence as to when these photos were taken changed, however, and my best understanding of his evidence is that none of the photographs in Exhibit B were taken the morning after the accident. Again, the Court was deprived of the photos second most contemporaneous to the accident; 3. on 2 September 2005. These photos were admitted on a limited basis. That is, to show the layout of the common areas of the Premises. In the beginning, this category of photo was limited to those photographs with the date of 2 September 2005 noted on the back. By the end of his evidence, Boris told the Court, by going through the photos one by one, that all of the photos taken in Exhibit B were taken on 2 September. Their use in the proceedings was, therefore, limited by the ruling on admission. That is they are admitted only to show the layout of the common area.
In initially giving his evidence as to when the photographs were taken, Boris was quite certain. No doubt was expressed. In fact, at one point, the witness stated that he was as certain about his evidence concerning the photographs as he was about his own date of birth. The complete about-face as to this matter irreconcilably undermined Boris' reliability. I do not regard him as a reliable witness. He was careless in considering whether the evidence he gave was truthful.
Another odd aspect of his evidence was that electricians repaired the lights and switches on 23 August 2014. The effect of that evidence was: 1. it meant that the repairs took place before the photos in Exhibit B were taken; 2. the condition of the lights and switches in those photos seemed to show disrepair (although not admitted into evidence for that purpose).
I do not understand why Boris took any photos at all in September, 2015 more than two years after the accident and after the repairs had been carried out in 2014.
This caused the Court to have even further doubt as to the reliability of this witness. It also raises questions about his motive in giving evidence.
In respect of the evidence relied upon for the plaintiff's broader case, I find: 1. that it was not pleaded in terms and seemed to arise on the run. This, however, would not be fatal to the case if the evidence was otherwise persuasive; 2. it was based on the evidence of Mr Arcaba and Boris; 3. both witnesses were completely unreliable. Very little weight can be given to their evidence; 4. there were other witnesses who would have had better knowledge of the facts relied upon to support the case who were not called without explanation (Mrs Arcaba).
Another piece of evidence, although unsatisfactorily produced as to form, were the documents produced by the Strata Manager, Independent Unit Management Pty Limited (Exhibit 5). I should note that I do not place conclusive weight upon these documents given their form, however, it is possible to discern from so much of the document as has been reproduced the complaints made to the management company in respect of the property around the time of the accident. There were no complaints noted which would support or otherwise be consistent with the plaintiff's broader case of chronic failure of the lights in the common area of the Premises.
Accordingly, I find that in respect of the plaintiff's "broader" case, the evidence called has failed to discharge the onus of proof necessary to establish the essential factual basis for the allegation, on the balance of probabilities.
In considering the question of onus, the evidence on liability adduced in the plaintiff's case failed, on the balance of probabilities, to establish that the plaintiff's harm was caused by the fault of the defendant.
I accept the preponderance of the evidence that lights in the common area were on and went off when the plaintiff was descending the stairs.
In the end, were a number of possibilities for the lights going off, including: 1. the switch timed out; 2. all of the lights in the common area of the Premises turned off for some other reason, such as malfunction; 3. the light above the staircase on level 3 blew and there was no other light in the common areas by reason of (a) or (b).
The fact that the light on level 3 blew is a feature of the plaintiff's case. The plaintiff gave evidence to that effect as did Mr Arcaba and Ms Cupac. Had that occurred, then it would be expected that the light at the bottom of the stairs on level 2 would continue to throw illumination on the plaintiff's path.
Choosing between the possible causes leads to speculation. To add into that determination of cause the suggestion that the light on level 3 blew adds to the degree of conjecture.
The court is left in a position where the evidence does not permit a finding as to which of the possibilities occurred. That is, timing out or failure through poor maintenance. The High Court considered this predicament in Luxton v Vines [1952] HCA 19. As here, there was no direct proof of what had occurred. The evidence was circumstantial. In the present case, the evidence, such as it is, does not even rise that high.
In Luxton, there were a number of possibilities of the cause of the plaintiff's injuries based on a generally consistent body of evidence. The Court stated: "The test to be applied in determining in cases like this whether circumstantial evidence suffices to support a finding that negligence for which the defendant is responsible vicariously or otherwise occasioned the injury complained of was restated recently by this Court in Bradshaw v. McEwans Pty. Ltd. (1), and for the purposes of this case it is enough to set out the following passage from the judgment : "Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference; they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture; see per Lord Robson, Richard Evans & Co. Ltd. v. Astley (2). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise : cf. per Lord Loreburn (3) ". (Emphasis added).
In my opinion, the circumstances arising from the evidence in the present case do not give rise to conflicting inferences of equal degrees of probability. To decide the case as put by the plaintiff and on the evidence led by the plaintiff would be mere conjecture or surmise, at best. In fact, properly analysed and having regard to all of the evidence, the most likely cause of the plaintiff being on the stairs in darkness was because the lights timed out. It is, however, not necessary to determine that matter. It is sufficient to conclude that the evidence does not permit the Court to draw a reasonable and definite inference giving rise to a finding of breach of duty of care by the defendant. In the result, the plaintiff's case fails for want of proof at the required standard.
Accordingly, I find: 1. that the evidence does not establish that the system of inspection and replacement of light bulbs was in any way inadequate; 2. that the evidence fails to establish that there was any "chronic" problem with the system by which light was supplied to the common area of the Premises; 3. that the defendant knew or ought to have known of any deficiencies or defects in the lighting.
Ordinarily, a trial judge might consider causation in case findings about breach contained in error. In the circumstances of this case, it is not or possible to undertake the exercise required by s5D of the CLA as an assessment of whether the negligence (or breach) was a "necessary condition of the harm" cannot be determined. That requires a specific finding as to the operative breach.

Contributory Negligence

In the event that I have erred on the issue of breach and causation is otherwise proved, it is necessary to consider the question of contributory negligence.
It was pleaded in the Defence, as follows: 1. failing to take any or any reasonable care for her own safety; 2. exposing herself to an obvious risk; 3. attempting to negotiate stairs in the absence of adequate lighting (which is denied); 4. failing to keep a proper lookout.
The duty was to take such care as is reasonable in the circumstances (Sakoua & Anor v Williams [2005]) NSWCA 405 at [63]). It was submitted by the defendant and I accept that the exercise of reasonable care obliged the defendant to take such reasonable steps to prevent such a risk (Penrith Rugby League Club Ltd v Elliott [2009] NSWCA 247 at [23]) not to ensure that a person did not stumble when the lighting suddenly failed.
On the question of contributory negligence, I find that the plaintiff was causatively negligent in the manner in which she negotiated the stairs. Whilst I accept that the light behind the plaintiff (on the third floor to the left) ceased to illuminate the stairs as she was descending them, it is not necessary to determine whether this was as a result of the natural switching mechanism of the lights on a timer or as a consequence of the light bursting.
Applying the usual principles regarding the apportionment between the parties, I have considered the statement of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 (29 May 1985). In the joint judgment, the Court stated (authorities and citations omitted): 10 The making of an apportionment as between a plaintiff and a defendant of their respective shares and responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjective to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relevant importance of the acts of the parties in causing the damage will be of little, if any, importance.
I also apply the standard of contributory negligence required by the CLA (s5R) and take into account the general principles re liability under the CLR (s5B) (Stojan No 9 v Kenway [2009] NSWCA 364. In particular, I find: 1. that the risk to the plaintiff of continuing down the stairs in darkness was foreseeable in that it has a risk which she knew or ought to have known; 2. the risk of injury was not insignificant; 3. that, in the circumstances, a reasonable person in the plaintiff's position would not have continued to descend the stairs in darkness but would have either waited for some light to be restored or continued, using the hand rail and with great caution.
It is always difficult for a trial judge to make an assessment of contributory negligence in circumstances where a finding of breach has not been made. If, on appeal, the Court is persuaded that the defendant breached its duty of care to the plaintiff for failing to maintain the Premises such that upon the bursting of a single light, the entire Premises were placed into darkness then that breach is to be weighed against the plaintiff's negligence in the manner in which she negotiated the stairs in those circumstances. In my opinion, a reasonable and prudent person would either have remained still or proceeded in a gingerly and cautious fashion.
Another failing on behalf of the plaintiff ought to sound in a reduction of damages for her own negligence was failing to ensure that the light switch was activated before she descended the stairs. This would have provided light from bulbs (save for the one that may have blown) for five minutes, sufficient time to leave the Premises safely.
After careful consideration, I would assess the plaintiff's contributory negligence at 25%.

part b - DAMAGES

The plaintiff's Schedule of Damages (MFI 1) was refined in final addresses.
Again, in the event that I have erred on breach, I am required to assess damages. The plaintiff sought damages under the following heads of damage: 1. non-economic loss (under the CLA); 2. past treatment expenses; 3. future treatment expenses; 4. past domestic assistance; and 5. future domestic assistance.
The pleaded claim for future economic was not pressed.
In respect of the damages claimed, I make the following findings and assessment, by reference to each head of damage.

Non-Economic Loss

The plaintiff's counsel has put forward a claim based upon 26% of a most extreme case, calculated under the Civil Liability Act. That amount is $48,500.00.
The medical evidence relied upon by the plaintiff is affected by the fact that the experts had not been provided with a full history of the plaintiff's medical condition. Further, proper consideration was not given to the fact that the plaintiff did not complain of back symptoms until about one year after the accident, following the MRI scan of 16 April 2014. The context within which that MRI scan was obtained is also relevant.
The other factor which looms large in this case is that the plaintiff was suffering from multiple sclerosis prior to the accident. The investigations into her lower back condition arose in that context. The history given to Dr Julia Thompson of the MS Clinic on 8 April 2014 refers to relatively recent onset of symptoms which were largely sensory in nature.
Further complicating the determination of the plaintiff's injuries in the subject accident is that, when the plaintiff consulted Vladimir Colovic, Physiotherapist, in early April 2014, it was reported back to Dr Todorovic "she complained of an onset of lower back pain three days ago. She states that she injured her lower back whilst twisting to the left side. She reports difficulty sitting, walking and getting up out of the chair … she presents with a limp to the right."
The other objective evidence which contradicts the plaintiff's claim and raises significant questions as to causation is the Disability Support Pension Form completed on 25 March 2015 by Dr Todorovic. He identified two conditions. They were MS, which was first diagnosed before the accident and an L4/L5 posterior disc bulge for which Dr Todorovic provided the date of onset as being 16 April 2014. The history provided was "had a fall outside her home - landed on her bottom area and hitting the left side of the body - pain on the left side of the neck, left shoulder and elbow".
Unfortunately, Dr Conrad's opinion has not taken into account these factors. He has simply accepted the plaintiff at face value and prepared a report in disadvantaged circumstances.
The defendant relied upon reports from Dr Stephen and Dr Mellick. Dr Mellick considered any injury to be of a soft tissue nature and did not believe that the plaintiff was still suffering from any effects of the fall.
Dr Stephen found that there was no ongoing shoulder pathology but there were minor symptoms in relation to soft tissue injuries to the low back.
Another matter of concern is that, the plaintiff was less than frank in providing her medical history to the doctors who examined her in respect of this claim.
I find that, as a consequence of the subject accident, the plaintiff suffered soft tissue injuries to both shoulder and to her low back. I also find that her condition pails into relative insignificance when compared to other competing conditions, notably multiple sclerosis which was considered to be the geneses for the worsening of the plaintiff's condition in 2014.
In my opinion, non-economic loss ought to be assessed at 20% of a most extreme case. That is $21,000.00.

Past Treatment Expenses

The plaintiff claims to have been referred to a physiotherapist but did not attend. The only form of treatment which she has obtained since the accident, apart from consulting her GP which she would have done in any event, is taking medication. Her evidence seems to be that she takes Panadeine Forte at a cost of about $13.00 per month [T25]. Apparently, her husband also purchased Panadol for her on occasions. Plainly, these medications would have been directed to treating conditions unrelated to the accident.
In any event, there was no documentary evidence in support of the claim and I decline to make any allowance for it. I, therefore, allow nothing for past treatment expenses.

Future Treatment Expenses

The claims for specialist care, counselling and future surgery were abandoned. This left only consultations with her General Practitioner and medication. The plaintiff regularly attended her General Practitioner prior to the accident and I do not propose to make any allowance in respect of that.
Absent any precise evidence as to the cost of future treatment expenses and the overlap between the condition caused by the accident and, other more significant conditions, I propose to allow $1,000.00 on account of future treatment expenses.

Past Domestic Assistance

This is put on a gratuitous basis and, therefore, the plaintiff must meet the threshold provided under the CLA. In addresses, counsel for the plaintiff, pressed a claim for gratuitous assistance of eight hours per week comprising the following: 1. half an hour a day after work or 2 ½ hours per week; 2. 4 hours on Saturday; and 3. a bit more (an hour and a half) on Sunday.
I have given careful consideration to the evidence of the plaintiff, Mr Arcaba and Boris in respect of the care they claim to have provided to the plaintiff. Overall, I found that the evidence exaggerated and unconvincing. An example is in the evidence of Mr Arcaba, as follows: Q: Since Biljana's accident, have you ever provided her with any form of assistance? A: INTERPRETER: Yes I have. Q: What assistance have you provided to her? A: INTERPRETER: Chores around the house, shopping, looking after the children, driving the children. Q: How regularly do you do these types of activities? A: INTERPRETER: Every second day. Q: Doing the best you can, how much time do you spend on every second day doing these types of activities? A: INTERPRETER: I basically stay there till dusk. Q: Doing the best you can, how many hours per day is it? On each occasion is it that you attend to these various activities? A: INTERPRETER: I am almost there 24 hours. [T81.3-20].
That is a gross exaggeration which has the effect of incurably undermining the plaintiff's claim for domestic assistance and irretrievably damaging the credibility of this witness. As it turned out, Mr Arcaba had not provided any assistance whatsoever for some time prior to the hearing as he was studying.
I find that in the event that any gratuitous assistance was provided to the plaintiff following the accident, it failed to meet the requisite statutory threshold and accordingly, no allowance ought to be made.

Future Domestic Assistance

Counsel for the plaintiff pressed a claim of 8 hours per week.
In view of my comments above in relation to the claim for the past, I approach the claim for the future with great scepticism.
In the context of considering the plaintiff's capacity for work (she did not work) Dr Stephen stated that he did not believe the plaintiff had suffered any serious incapacity for work as a result of the accident.
In a supplementary report, Dr Stephen expressed the opinion that she may have required domestic assistance for a few hours per week for about four to six weeks after the accident but none thereafter.
My impression is that there is no real need for assistance. The evidence in the plaintiff's case was exaggerated. In the alternative, I find that if there is a need for assistance then such need would be met by the provision of gratuitous assistance (see ECS Group (Australia) Pty Ltd v Hobby [2014] NSWCA 193 re application of s15 of CLA) which would fall below the requisite statutory threshold. Accordingly, no allowance is made for future domestic assistance.

Summary of Assessment of Damages (a) Non-economic loss $21,000.00 (b) Past treatment expenses $Nil (c) Future treatment expenses $1,000.00 (d) Past domestic assistance $Nil (e) Future domestic assistance $Nil Total $22,000.00 Less 25% for contributory negligence $16,500.00

oRDERS

I make the following orders: 1. verdict for the defendant; 2. the plaintiff to pay the defendant's costs; 3. liberty to apply to vary the order regarding costs, if necessary; 4. the exhibits to be retained by the Court for 28 days and then returned to the parties.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 August 2017

Jankovic v Owners - Strata Plan 21894

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Judgment (38 paragraphs)

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Cases Cited (6)