Le v Rawson

Gett v Tabett [2009] NSWCA 76 CASES CITED: Harris v Perry [2009] 1 WLR 19 Jones v Bartlett [2000] HCA 56; 205 CLR 166

PARTIES: Hoa Anh Thi Le (Appellant) Debra Rawson (Respondent)

COUNSEL: J E Maconachie QC and S Gray (Appellant) P Webb QC, G Hickey and H Maarraoui (Respondent)

SOLICITORS: HWL Ebsworth (Appellant) Keddies Litigation Lawyers (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40237 of 2008 BEAZLEY JA HODGSON JA YOUNG JA

The appellant (second defendant at trial) was the owner of premises in Sanctuary Point, New South Wales. The respondent (plaintiff at trial) was the tenant of those premises who sustained injuries after allegedly falling through missing struts on a first floor balcony on the premises. At trial, the respondent sought damages from the appellant as a result of those injuries.

The trial judge found that the appellant knew about the damage to the struts on the balcony caused by wood rot and that the appellant's failure to fix/replace those struts, or otherwise remove the risk of harm caused by their absence, constituted a breach of the appellant's duty of care to the respondent. There was conflicting evidence before the trial judge as to how the respondent came to leave the balcony. The trial judge rejected the evidence of two witnesses who suggested that the respondent left the balcony intentionally or fell from the railing, preferring the respondent's evidence that her fall was not intentional. The respondent gave evidence that she was pacing up and down the balcony then may have tripped or otherwise lost her balance, though the respondent did not know, and then fell through the gap to the ground below.

The appellant appealed the trial judge's findings of fact (as to how the respondent left the balcony and that she fell through the gap left by the missing struts) relating to causation, liability and award of damages. The appellant's principal submissions were that the trial judge erred in rejecting evidence that the respondent left the balcony intentionally and therefore erred in finding a causative link between the appellant's breach of duty and the injury suffered because there was no evidence or not sufficient evidence to prove what caused the respondent to leave the veranda and that it was not open to the trial judge to infer it.

Young JA (with whom Beazley and Hodgson JJA agreed) upheld the trial judge's findings of fact and dismissed the appeal. The trial judge was correct in his assessment of the evidence, properly rejecting evidence suggesting the respondent intentionally left the balcony. The respondent did not have to prove what caused her to fall only that she fell and had it not been for the decayed slats, she would not have fallen from the balcony to the ground and become injured. The appellant did not discharge the onus of proving contributory negligence despite the respondent's knowledge of the missing slats as there was nothing to suggest that a reasonable person would think that there was a real risk of an adult falling over and passing through the gap. The trial judge's assessment of damages for past and future economic loss and gratuitous care was also upheld.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40237 of 2008 BEAZLEY JA HODGSON JA YOUNG JA

1 BEAZLEY JA: I agree with Young JA. 2 HODGSON JA: I agree with Young JA. 3 YOUNG JA: This is an appeal from a decision of Judge McLoughlin in the District Court of 15 May 2008. 4 The appellant, Hoa Anh Thi Le, was the second defendant at trial and the owner of premises in McLeans Point Rd, Sanctuary Point, New South Wales ("the premises") which she leased, through real estate agents trading as "Coastal Independent Agents" (the first defendant at trial), to the respondent, Debra Rawson. The respondent was the tenant of the premises and the plaintiff at trial who claimed damages from Le as a result of injuries she allegedly sustained in a fall from the Eastern balcony on the premises on 17 December 2004. 5 Judge McLoughlin found the appellant negligent and awarded the respondent total damages of $694,814 plus costs. The appellant appeals from the learned trial judge's findings of fact, liability and damages. 6 At trial, the respondent claimed that at about 1:05pm on Friday 17 December 2004, she tripped or otherwise lost her balance whilst walking on the balcony of the premises and fell through the "gap" left by several missing upright balcony struts. She alleged that she fell more than three metres to the ground below and consequently sustained severe injuries, loss and damage. The respondent's claim that the appellant's failure to take reasonable steps to either fix/replace the missing struts, or otherwise remove the risk of harm caused by their absence, was negligent was successful at trial. 7 The trial proceeded only against the appellant, who was the second defendant in the proceedings below, because the first defendant, the real estate agents, had been released from the proceedings. 8 The appellant at trial denied negligence and did not admit loss or damage. The appellant also pleaded contributory negligence as an alternative should the plaintiff succeed in proving negligence. 9 There were some agreed facts. The appellant and the respondent entered into a residential tenancy agreement for the premises on 23 August 2003. 10 The condition report for the premises, prepared as part of the residential tenancy agreement between the appellant and the respondent entered into in August 2003, indicates loose wood and dry rot on the Eastern balcony. 11 In January 2004, in a property inspection report, the appellant was alerted, by her agents, to the problem of dry rot on the veranda and recommended to attend to it. The appellant was again told of the dry rot problem and recommended to attend to it in a property inspection report of 25 May 2004. On this occasion, the appellant was advised by the real estate agents that the dry rot problem was causing the veranda to be "dangerous". 12 Again, in a property inspection report dated 13 October 2004, the appellant was alerted to dry rot, specifically, that "some wood panels [had] fallen off" the veranda and that the "veranda is dangerous with the dry rot situation". 13 On 19 November 2004, the agents sent a fax to Mr Le (who, it was agreed acted as the appellant's agent) recommending that he attend the premises to arrange for the wood rot damage to be repaired. 14 On 15 December 2004, Mr Le was again told by the agents of the dry rot situation. On 16 December, Mr Le directed the agents to give notice to terminate the lease to the respondent in order to repair those and other defects on the premises. 15 It was agreed that there were five struts or slats missing at the time of the incident, that wood rot had caused the slats to deteriorate to the point where they broke up and/or fell off. It was also agreed that when the respondent took possession, she was aware of some missing slats however, at that time, there weren't as many as five missing from the spot in question. It was agreed that, gradually, as more of the slats had deteriorated, the gap grew to five missing slats, the state of the gap on the date of the incident. 16 The respondent's evidence that, before her departure from the balcony, she was agitated and had been, for thirty to forty minutes, walking up and down on the balcony, chain smoking, appears to have been accepted by both parties. However, one witness, Allan Oxley, says he heard "running". This is unlikely as the amount of space for a person to move on that veranda was limited, particularly in width and there was considerable amount of impedimenta on it. 17 There was considerable dispute at the trial as to other matters of fact, particularly that there was little direct evidence as to how the respondent came to depart from the veranda and impact with the ground below. 18 There was conflicting evidence given as to whether she tripped and fell or whether she left the balcony intentionally. The respondent's evidence was that she did not know how she came off the balcony. Her evidence was that she was pacing up and down the balcony and then she suggests that she may have tripped or otherwise lost her balance or footing and fell through the gap created by the missing struts so that she was "in mid air". There is thus a gap in her recollection between when she was pacing up and down the balcony and when she was in "mid air". 19 Evidence was also given at trial that, on one occasion prior to the incident on 17 December in about October 2004, Mr Le and the appellant attended the premises to inspect the premises. The trial judge accepted the evidence of the respondent and her then partner, Mr Summers, that on that occasion Mr Le replaced a piece of wood on the Western balcony, inspected the missing slats on the Eastern balcony and said that he would return in two weeks to replace the several slats that were missing on the Eastern balcony. The trial judge did not accept Mr Le's evidence to the extent that it was inconsistent with that version of events. 20 At trial, an expert's report of architect, Dr John Cooke, was tendered that indicated that the respondent had arranged, from time to time, for friends to attempt to repair the damage to the slats caused by wood rot. This expert's report was accepted by the trial judge including that the dimensions of the gap left by the missing five slats was 890mm in height and 855mm in width. 21 It is necessary to give a brief description of the veranda. It was narrow, 12 floorboards wide, and extended along the whole of the front of the upper storey of the house. Looking from the front yard, there were sliding doors at the left hand end, then the kitchen window, a semi opaque orange glass window over the internal stairs, the bathroom window, the toilet window and what I will call a French window at the right hand end. 22 The photograph at Blue Appeal Book 470 shows the veranda, the missing slats under the orange window, a barbeque on the veranda about 16 slats to the right of the missing slats underneath the bathroom window and the blue front door on the lower level directly underneath the bathroom window. 23 At the time of the incident, three other people were present at the premises. Mr John Summers, Ms Angela Oxley, the respondent's then friend, and Allan Oxley, Angela's 13 year old son. 24 Ms Oxley and her son had been staying at the premises. Angela and Allan Oxley gave evidence to the effect that they had witnessed the respondent either standing or crouching on the railing of the balcony or that they had seen her jump off the railing. 25 The trial judge did not accept their evidence that the respondent's fall from the balcony had been intentional and preferred the respondent's evidence and that of Mr Summers that she fell from the balcony. On that assessment of the evidence, his Honour found that the respondent's departure from the balcony was not intentional. 26 The appellant appealed on ten grounds, though three of these, were abandoned, the appellant accepting that she owed a relevant duty of care and that there had been a breach of that duty. 27 The principal issue on liability on the appeal was the question of causation, challenges to the primary judge's consideration of the evidence, contributory negligence and the quantum of damages for past and future economic loss and for domestic assistance. 28 The appeal was heard on Monday 1 June 2009. Mr J E Maconachie QC and Mr S Gray appeared for the appellant and Mr P Webb QC, Mr G Hickey and Mr H Maarraoui appeared for the respondent. 29 Mr Maconachie submitted, at the hearing of the appeal, that the "main thrust" of the appeal was the issue of causation, that is, how the accident happened. 30 Mr Maconachie submitted that, by erring in his findings of fact as to "how the respondent separated from the balcony", the trial judge erred in his findings as to causation. 31 After reviewing the evidence, the primary judge said (Red 72L): "It is impossible for the court to determine exactly what caused the plaintiff to be projected through the absent five slats. However, I am of the view, and find that it was not intentional on behalf of the plaintiff. Whether she tripped or whether she lost balance; whatever it may be, it occurred when she was in an agitated condition and was not able to prevent herself from going through that hole created by the absence of the five slats, which were in that condition because of the deterioration that had occurred to the balcony because of the existence and continuance of the wood rot." 32 The primary judge then considered the submission by the appellant's counsel that without evidence as to what caused the respondent to leave the veranda, she must fail. 33 The primary judge rejected this submission, saying (Red 72 T): "I do not accept this as so. This is not a case which is a straight slipping case, where the plaintiff must establish the exact cause of her slip. The plaintiff lost balance, for whatever reason, whether it was through tripping, slipping, turning too quickly, or whatever, and because of the defendant's negligence in allowing the veranda to be in the condition that it was that that loss of balance caused her then to fall through the hole that had been left by the absent five slats and then fall to the ground below." 34 It is now necessary to set out the relevant evidence, the primary judge's assessment of it and appellant's counsel's submissions as to why that assessment was in error. 35 As noted above, there were four principal witnesses. In addition there was evidence as to objective facts, principally as to where on the ground the respondent landed in relation to the missing slats. 36 The respondent's evidence in chief (Black 26) was simply: "I just remember pacing and I fell through the slats, went forward and I was in mid air…I put my arms out and remember thinking that 'This is going to hurt' and I didn't have time to scream….I landed basically in front of the door, straight down on the grass, head first." 37 She did not know and gave no evidence as to what caused her fall. 38 In coss-examination (Black 75-6) the following was said: "Q. There's a gap in your recollection isn't there? A. Yes there is. … Q. You say you can remember pacing? A. Yes. Q. And then you say you can remember being in thin air, is that right? A. Yes. Q. And there's a gap between that pacing and being in thin air isn't there? A. Yes there is." 39 The primary judge accepted the respondent's evidence-in-chief (Red 64T). He did not refer to the cross-examination. I will return to this point. 40 The respondent was probably affected by liquor when she fell. On her own evidence, she had been drinking that morning. However, the primary judge accepted her evidence that her last drink had been at noon. She said that the reason for this unusual drinking pattern was that she knew that she had to be completely sober by 6pm for reasons that will appear below. 41 There is no doubt that the respondent was agitated on that day. There was evidence from Mr Summers, which the primary judge accepted, that, about one hour before the incident, he had taken a knife off the respondent and indeed had taken the whole knife drawer downstairs away from her. 42 This evidence was used by the appellant's then counsel to favour a suicide impulse being suffered by the respondent, an impulse that shortly later led her to jump off the veranda. The primary judge seems to have considered that the respondent may instead have intended to use the knife on Ms Oxley with whom she had had an argument and whom she wished to leave her premises forthwith. 43 Again, it is common ground that the respondent had been sentenced to weekend detention apparently for driving under the influence of liquor and knew that she had to be on the prison bus leaving Nowra Police Station at 6pm that day to serve the fourth weekend of her gaol sentence. 44 This fact was thought to be significant by both sides, the appellant because it increased the likelihood of suicide, the respondent because she knew that she would be in big trouble and probably have to serve the remainder of her sentence in full time custody if she failed the breathalyser test that was used to examine prisoners before they boarded the prison bus. 45 The respondent was strongly cross-examined. She said that the weekend detention as such did not cause her stress, but she was concerned about leaving the children under the care of Ms Oxley while she was away. 46 It would seem that the evening before there was an unpleasant incident during which the respondent was alleged by Ms Oxley to have sought sexual activity with her. Ms Oxley told Mr Summers of this. The respondent told Mr Summers that she wanted Ms Oxley out of her house. 47 The respondent said that she was agitated pacing up and down the veranda and chain smoking. She had her cigarettes on the railing of the balcony roughly in the position above the missing slats. 48 As she was doing this, Ms Oxley and Mr Summers were in conversation and she heard Ms Oxley "start again". I assume this meant that the respondent thought that Ms Oxley was in the course of repeating some complaint. This increased the respondent's stress. 49 This scenario might be thought to have increased the likelihood of the respondent wanting to jump off the balcony and be rid of her stress and troubles. 50 However, it was put in cross-examination to the respondent that she climbed up on to the railing of the veranda and then fell from there. She rejected that suggestion and was never shaken on it. She repeated on a couple of occasions, "I did not jump off the balcony". 51 At the time of the incident, Mr Summers was standing near the sliding doors, that is, near the left hand side of the veranda as viewed from the front lawn. 52 Mr Summers was either talking to Ms Oxley or had just concluded doing so. He did not see the respondent leave the veranda as he was facing Ms Oxley with his back to the respondent. 53 His evidence was that he heard a click and an "uh" sound, he turned around and saw the respondent in the air. He said that her body was "more or less flattish but at a slight angle" with her arms outstretched in front of her about to hit the ground. Her head hit the ground and bounced back. He thought that the area of the missing five slats was about where she fell. 54 Mr Summers called out to Ms Oxley, "Ange, ring the ambulance straight away. Deb's gone off the veranda". 55 Ms Oxley said she was looking out on to the veranda from the kitchen area and she saw the respondent on the railing of the balcony and saw her jump off. The respondent jumped from a point closer to the kitchen than the five missing slats. 56 Ms Oxley had been drinking heavily and was not in full possession of her faculties. 57 Ms Oxley rang 000, but she was unable to complete giving the operator the required information and Mr Summers completed the call. 58 The judge admitted a record of that telephone call. There was objection to its admissibility below, but not before us. 59 The formal record of the 000 conversation shows that the operator was told that Debra Rawson jumped off a balcony two storeys high and landed on her face; she was going to gaol so she jumped off the balcony: (Blue 273). 60 The transcript of the call shows the following (AO=Ms Oxley, Man=Mr Summers, 000 Op=operator):

"AO She just jumped off, a bird just attempted suicide off the balcony…..She's jumped, yes she's jumped because she's in jail, so she jumped.

AO She fell flat on her face off the balcony, two floors up." 61 Mr Maconachie conceded that because he could not escape from the primary judge's finding that Ms Oxley's evidence should be rejected and because the 000 operator's information came from Ms Oxley, this conversation did not have the impact it might otherwise have had. 62 Allan Oxley gave evidence that, at the relevant time, he was using a computer up against the living room wall side on to the veranda. The balcony was on his right hand side and between him and it was a semi-opaque orange glass window. 63 Allan Oxley said he remembered the respondent holding a knife and it being taken off her. 64 Later, he saw a shadow through the orange window climb up onto the railing of the veranda, putting first one leg up and then the other and then jump off. 65 The primary judge said that he accepted the evidence of the respondent and Mr Summers that people had tripped on the veranda because the flooring had become loose. 66 The judge said that Mr Summers was the best witness. He was sober and he was in the situation where he was able to observe. 67 The judge rejected Ms Oxley's evidence on a number of grounds including that her various statements to police and others were inconsistent. Mr Maconachie concedes that it was open to the judge to do so. 68 The judge also rejected Allan Oxley's evidence. He did so because he considered that Allan Oxley was playing on the computer without paying much attention to what was going on and that his evidence was contaminated with what he had heard his mother say to various people. 69 The primary judge's actual words were (Red 70): "The next question is what did in fact Allan Oxley see? I accept he made a mistake in relation to whether he thought what he saw was through the bathroom window, and it was not the bathroom window but the window above the stairwell. However, he did describe such window as being orange, and the window immediately opposite where the five slats were missing was in fact orange. His view through that orange window would have been restricted: One, he was concentrating on the computer; two, he would not have been able to see some of the matters which he has described, and further that his attention was probably drawn to movements of the plaintiff when she had lost control, for whatever reason, at the time she fell from the balcony to the ground below. I have no doubt that he, having heard his mother make a comment, formed a view and has given his evidence of that which he believes. The difficulty I have in accepting Allan Oxley's evidence is my acceptance of Mr Summers evidence and the contemporaneous records recording the plaintiff's conversation to the ambulance, police and hospital personnel, and that as described by Allan is unlikely to have occurred, and I do not accept that it did." 70 The judge's conclusion was (Red 72) that he did not accept that there was "any intentional act on behalf of the respondent to push herself off the veranda or through the absent five slats or that she fell from the veranda railing". 71 Mr Maconchie's UCPR Part 51.36 statement challenges a number of the judge's findings of fact. 72 First, the appellant puts that the primary judge's finding that the respondent did not put herself onto the ledge and project herself down to the ground below is wrong. 73 This submission is principally based on the judge's alleged wrongful rejection of Allan Oxley's evidence. 74 As Hodgson JA identified during argument, which was accepted by the appellant, there are two aspects of the causation issue. The first aspect is whether the trial judge was justified in rejecting the particular evidence of Allan Oxley. The second aspect is how, even if the court is satisfied that the trial judge was so justified in rejecting that evidence (or, really, preferring the evidence of the respondent and Mr Summers), the trial judge came to a rational explanation of how the accident could have happened without some intent by the plaintiff because there isn't really any suggestion of any incident that could have directed her through the slats - the problem is having a rational scenario that explains how she could have gone through these slats. That second aspect is at the heart of the appellant's submissions on the causation issue. 75 As to the first aspect, Mr Maconochie made four principal points, viz:

(a) There is no support in the evidence that Allan Oxley's attention was only drawn to the respondent's movements after she lost control;

(b) The assertion that Allan Oxley's evidence was contaminated by what he heard his mother saying cannot stand;

(c) The expressed preference against Allan Oxley's evidence is illogical;

(d) Allan Oxley's evidence is not inconsistent with the evidence of the respondent or Mr Summers. 76 These points and the evidentiary material behind them overlap and thus I will deal with them together though endeavouring to focus on the significance of the points in the order I have stated. 77 As to (a), counsel referred to Allan Oxley's evidence when he said that the computer he was operating was in a position where the orange window was to his right. He saw the shadow in the orange window and stopped playing at the computer when he saw it. He turned his head and saw the shadow get up very quickly onto the balustrade, bend its knees and just sort of push outwards. He got the impression of a forceful jump, feet first. 78 Allan Oxley did not depart from this evidence despite strong cross-examination. 79 Subject to what I say below at paras [93]-[100], there is some force in the submission that the evidence does not support the view that Allan Oxley's attention was only drawn to the respondent after she lost control. It would be proper for a judge to take that view based on his common experience of people concentrating on working at their computers, but only if the other evidence was silent. 80 Here, the primary judge accepted Allan Oxley as an honest witness who believed that he saw what he said in the witness box. There was no reason for the judge to reject Allan's testimony for reasons of demeanour. 81 Seeing a figure mount a veranda rail is an unusual sight and would be remembered. However, there is no doubt that Allan Oxley's view was obscured, if not only by his attention to his computer, by the fact that he was seeing life through a semi opaque orange window. 82 There was variation in the evidence as to the point from which the respondent departed the veranda. The respondent said she thought she fell straight down which would put the point of departure from about level with the toilet window. Mr Summers, and inferentially Allan Oxley, put the point near the missing slats. Ms Oxley marked "Deb" on the photograph at Blue Book p 466 just to the right of the kitchen window as the point of the respondent's jump. 83 The evidence from Mr Summers (whose evidence was accepted below) was that the respondent was pacing from right to left at the time of her fall. 84 Mr Maconachie puts that if the respondent became unbalanced when she was pacing from right to left and fell through the gap in the slats, she must descend to a point under the missing slats or to the left. The primary judge did not make a finding as to where the respondent landed. However, the evidence may be considered as suggesting that she landed to the right of the gap. 85 It must be remembered, however, that most of the people giving evidence on this issue were in no position to see things clearly or indeed were in no position to see what happened. 86 The only significant evidence concerning where the respondent landed was the respondent's own evidence that she "landed basically in front of the door" and that "the front door leading to the property was behind my feet" (Black 26). 87 Looking from the front yard, the left-side of the front door (which was at ground level) was about 1 metre to the right of the right-side of the orange window (which was at the balcony level), while at the ground floor level, to the left of the front door, there was uninterrupted brickwork extending about four metres to another window; that is, extending well beyond the orange window (Blue 470). Three of the five missing slats were in front of the orange window (which was about 60 centimetres wide) and the other two were to the right of that window (Blue 468), the total width of the gap being 85.5 cm (Red 58). 88 In those circumstances, I see no inconsistency in the respondent's case that she went through the gap, fell straight down and landed "basically in front of" the front door: falling straight down from the gap, she would have been less than a metre to the left of the front door, and about three metres to the right of the next opening in the wall. 89 This point has significance when considering Allan Oxley's evidence as if the respondent's departure from the veranda took place well to the right of the orange window, Allan Oxley would not have a decent view of what was happening. 90 It was put to Mr Maconachie during oral argument that his submissions that Allan Oxley's evidence should be accepted and his submission that the evidence of where the respondent landed were inconsistent. 91 Mr Maconachie denied this suggestion and submitted that there was no precise evidence as to the line of vision from where Allan Oxley was sitting. The hypothesis that Allan Oxley saw the respondent climb up onto the veranda rail and jump with her landing near the front door was more consistent with the evidence as a whole than the hypothesis accepted by the primary judge. 92 Mr Maconachie was also not slow to remind us that the onus of proof of each fact necessary to establish causation was on the respondent. 93 I was initially attracted to Mr Maconachie's submission that the judge was not justified in saying Allan Oxley's attention was only drawn to the respondent's movements after she lost control. 94 However, it must be remembered, and it is significant that the primary judge accepted the evidence of Mr Summers that Ms Oxley was sitting on a sofa inside the house, and therefore was in a position where she could not have seen the respondent leave the balcony; and this was accepted by Mr Maconachie (appeal transcript at p 12). 95 Thus, not only did the primary judge find Ms Oxley's evidence unreliable, but also he found that she could not have seen what happened; so that her statement in the triple-0 call to the effect that the respondent had jumped was not merely unreliable but was made without any possibility of any foundation. 96 This in my opinion has further significance in relation to the evidence of Allan Oxley. In a statement given to an investigator on 4 September 2006, which Allan Oxley signed (Blue 303-304), Allan Oxley asserted: "I was still in the living room playing a golfing game on her computer when I heard, mum and Johnny call out 'don't do it'. I looked through the bathroom window which was orange coloured glass. I then saw Deb standing on the veranda railing with her arms out from her side. I think she was there for about 5 seconds when I saw her take a small step forward and then she was gone." 97 The misidentification of the orange window as the bathroom window in this statement is of no consequence. Much more important is that evidence accepted by the primary judge, and not challenged on appeal, meant that Allan Oxley's mother did not and could not have seen the respondent leave the balcony, and that "Johnny" (Mr Summers) did not see this because he was looking towards Ms Oxley. In those circumstances, neither of them could have called out "don't do it". 98 Even more significant, perhaps, is that the assertion that he saw the respondent standing on the railing, following his attention being drawn by these words, is inconsistent with his evidence at the trial that he saw a shadow (that is, the respondent) climb onto the railing, putting first one leg up and then the other. 99 Mr Maconachie submitted that this inconsistency was not squarely put to Allan Oxley; and in my opinion, it would have been preferable that this had been done. However, Allan Oxley's evidence was strongly challenged and he was cross-examined on his earlier statement. In my opinion, this is an important inconsistency that this Court can take into account. 100 Having regard to this matter, while I agree that there is no direct inconsistency between the evidence of Mr Summers and the evidence that Allan Oxley gave at the trial, this inconsistency between the evidence of Mr Summers and the earlier statement by Allan Oxley is damaging to Allan Oxley's evidence, giving some answer to Mr Maconachie's points (a) and (d). 101 Mr Maconachie submits that there was no evidence of influence/contamination from Ms Oxley with respect to Allan Oxley's evidence. 102 Both Allan Oxley and Ms Oxley denied that Allan's evidence was in any way influenced by what Ms Oxley had said. Indeed Allan said that on the day of the incident he actually told the respondent's son, Dean, that he had seen Dean's mother jump off the balcony. Dean did not give evidence. 103 In his closing address, counsel for the respondent drew the primary judge's attention to Allan Oxley's evidence about the knife incident which counsel claimed was clearly derivative from his mother's evidence. 104 To my mind, there is some justification in this submission. There is also considerable similarity, though certainly not complete correspondence, in Ms Oxley's evidence and Allan Oxley's. 105 There was evidence which suggested that Allan Oxley had had a conversation with his mother about the incident and that, in that conversation, Allan said that the respondent had jumped. However, he strongly maintained that he had never said how the respondent jumped. 106 Mr Webb says that the primary judge's rejection of Allan Oxley's evidence did include some demeanour based findings and should not be lightly cast aside. 107 I do not accept the proposition that there was no evidence that Allan Oxley's evidence was contaminated: the degree of contamination is a matter of debate. 108 However, whilst it may be that if it were necessary to find on the balance of probabilities that Allan Oxley's evidence was contaminated, when the trial judge has the combination of circumstances that Allan Oxley's view was obscured, there is a possibility of contamination, the witness was only 13 years old at the time of the incident, and possible influence of demeanour, I find it difficult to say that the primary judge's assessment of Allan Oxley's evidence was wrong or that I would be justified in taking a different view on appeal. 109 Indeed, even if the trial judge rejected the whole of Ms Oxley's evidence, that would not have permitted him to find the contrary fact. 110 As to (c), although the appellant does not seek to rely on the evidence given by Ms Oxley, counsel submits that the trial judge did not give due consideration to the fact of the apparent "gap" in the respondent's recollection. 111 Mr Maconachie submitted that because the respondent says that there is a gap in her recollection, because of the fairly narrow gap in the slats with no suggestion of "new damage" (arising from the incident) to the surrounding slats, and the position in which the respondent was found and the difficulty of her reaching that position if she fell through the slats, it was illogical to reject Allan Oxley's evidence for the reasons he gave, or any reasons. 112 It is important in relation to the gap in the respondent's recollection to identify just what that gap was. Her evidence-in-chief was "I just remember pacing and I fell through the slats, went forward and I was in mid-air". The question in cross-examination "there's a gap between that pacing and being in thin air isn't there?" (following two preparatory questions set out in para [38] above), coupled with the respondent's affirmative answer, was not in my opinion sufficient to significantly damage the respondent's evidence-in-chief that between pacing and being in mid-air she fell through the slats. 113 If the respondent was to be challenged on her evidence that between pacing and being in mid-air she fell through the slats, this point should have been raised with her more fairly (that is, stating accurately the effect of her evidence-in-chief) and/or at least more directly. In my opinion, this consideration removes much of the force from Mr Maconachie's point (c). 114 I now turn to the second matter noted by Hodgson JA during the oral argument, that is, whether it can properly be said that the trial judge came to a rational explanation of how the accident could have happened without some intent by the plaintiff. 115 There is no doubt that the fall occurred. There would appear to be only three possibilities as to how it occurred namely:

(a) The respondent fell over and then fell through the gap in the slats;

(b) The respondent climbed up on to the veranda railing and fell off;

(c) The respondent climbed up on to the balcony railing and jumped off. 116 All three possibilities have some aura of unreality about them. 117 As to the mode of the respondent's fall and where she landed, the respondent prefers (a) and the appellant prefers (b) or (c). 118 Mr Summers' observation that the respondent was falling in a flattish position tends to show that she was not jumping. However, it does not preclude the respondent climbing and then falling. The position where the respondent landed tends to show she did not fall through the slats. 119 However, experience in the law tells one that it is not unusual to find that some parts of the evidence tend in different directions. 120 In the circumstances, I do not find that the judge's hypothesis as to how the respondent sustained her injury to be irrational. 121 I now turn to consider the primary judge's assessment of the whole of the evidence. 122 Mr Maconachie puts that it was incumbent on the primary judge to say why he rejected the apparent disavowal of the respondent's evidence in cross-examination that there was a gap in her memory between the time that she was pacing and being in mid-air. A disavowal that meant that she did not remember how she came to be in mid-air. 123 Counsel referred us to what the English Court of Appeal said in Harris v Perry [2009] 1 WLR 19. There, the trial judge had accepted part of the evidence of a boy, Simon, who was with the injured child at the time of his injury on an inflatable castle. At [24] p 26 the court said: "In that the judge primarily relied on Simon's evidence in relation to events on the castle after his arrival there with the claimant, we consider that it was incumbent on the judge at least to refer to Simon's contrary evidence and to explain his rejection of it before making any such finding." 124 Mr Maconachie puts that not only did the judge not explain why he rejected the respondent's evidence given in cross-examination, also he failed to consider the undisputed evidence of disturbance, anxiety and turmoil. 125 The respondent conceded (Black 54) that at the time, she was "majorly distressed over the events over the several days" preceding her injury. The judge does not refer to this evidence. 126 Thus, it is put that, even apart from the problem with Allan Oxley's evidence, the fact-finding exercise miscarried and there was no sufficient material on which the judge could have found that the appellant's breach of duty with respect to the state of the balcony was causative of the respondent's injury. 127 Mr Webb sought to refute these suggestions by putting that the respondent's evidence in cross-examination was not inconsistent with her evidence-in-chief. Further, it was never directly put to the respondent that there was any such inconsistency. To the extent indicated in paras [111]-[112], I accept this submission. 128 Mr Webb says that the turmoil etc was common ground and the judge clearly had it in mind from what he said in his reasons. I believe that this is correct. 129 The appellant submits that, on the basis of this analysis of the evidence, the trial judge based his findings on a "controlling fact, an important objective fact" that the plaintiff did not jump from the balcony and that she fell through the gap created by the missing slats. The appellant submits that there was no direct evidence proving that the plaintiff passed through the gap and that his Honour appears to have inferred it. The appellant submits that that inference was not available to the judge on the evidence before him. 130 As to the respondent's evidence, as I have said, the primary judge accepted what she said in chief and did not refer to the cross-examination. 131 However, the judge noted that his conclusion was reinforced by:

• what the respondent had told the triage nurse at Shoalhaven Hospital. ("falling through balcony railing height appox 4m"): (Blue 84) also; * the police incident report ("The victim has slipped on the wet surface from the rain and has slid through a gap in the ballistrades on the veranda"): (Blue 340);

• the ambulance report ("Patient lying prone on grass, patient having fallen approx 4 metres from a first floor balcony"): (Blue 82). 132 It should be noted that there is no certainty as to who actually supplied this information to the triage nurse, the police or the ambulance officers. Indeed, Mr Maconachie submits with some logic that it may well be that at least some of these people merely surmised what might have occurred. 133 Appellant's counsel say that the duty of this Court to review the findings of fact is as stated by this Court in Gett v Tabett [2009] NSWCA 76 at [14]: "…on an appeal by way of rehearing, the Court is not restricted to correcting errors of law. Rather, and subject to an important qualification, the Court is required to assess the evidence, inferences and evaluative judgments required to be made to determine the case." 134 Appellant's counsel suggest that when this Court is approaching the evidence in the light of the primary judge's alleged errors, the Court's obligation is to find that the respondent has not made out her case on causation. 135 The crucial question of fact is, "Did the respondent fall or did she leave the balcony intentionally or climb up onto the balcony rail and fall from it?" Probably it is better put, "Did the respondent show on the evidence that the balance of probability favoured the view that she fell through the slats rather than the competing view that she climbed up onto the balcony rail and fell or jumped?" 136 If one goes back to basics, what the respondent had to establish, on the balance of probabilities, was that she fell and had it not been for the decayed slats, she would not have fallen to the ground and become injured. 137 A most significant matter is that the respondent did have a recollection of most of what happened before the fall, though she cannot say what caused the fall. She categorically rejected the assertion put to her in cross-examination that she had climbed up onto the veranda rail. 138 The judge accepted the respondent's evidence and there is no reason why he should not have done so. 139 The respondent's basic position is that the evidence to be weighed is that of the respondent and Summers against that of the Oxleys. Once the Oxleys' evidence is properly rejected, and the respondent's evidence is accepted, the most probable scenario is that the respondent fell and did not jump. 140 Thus, in my view, despite the valid criticisms that may be made about some of the judge's consideration of the evidence, the material justified a finding that the respondent fell through the gap in the slats. 141 There was some debate before us that, even on this view of the evidence, the cause of the fall was not a result of any breach of duty in letting the house. 142 Mr Maconochie referred us to the High Court's decision in Jones v Bartlett [2000] HCA 56; 205 CLR 166 and in particular what Gummow and Hayne JJ said at [173] 216, viz: "The duty [of a landlord] with respect to dangerous defects will be discharged if the landlord takes reasonable steps to ascertain the existence of any such defects and, once the landlord knows of any, if the landlord takes reasonable steps to remove them or to make the premises safe. This does not amount to a proposition that the ordinary use of premises for the purpose for which they are let must not cause injury; it is that the landlord has acted in a manner reasonably to remove the risks." 143 The appellant put that the primary judge misstated the scope of the duty. There may be some truth in this, but if it were so, it does not affect the result of the case as the landlord knew of the defective slats and, on the preferred version of the incident, the missing slats meant that there was nothing to prevent the respondent's fall resulting in her descending 3-4 metres instead of being retained on the balcony. 144 As to contributory negligence, the appellant says that the judge applied a subjective test notwithstanding that s 5R of the Civil Liability Act 2002 prescribes an objective test. 145 This submission is correct. 146 However, that means that we must ask whether, by the standard of a reasonable person in the position of the respondent on the basis of the respondent's knowledge, the respondent failed to take precautions against the risk of harm. 147 The appellant says that there are four matters which indicate that, had the primary judge applied the objective test, he would have found contributory negligence. These are:

ii She reduced her capacity to care for herself by:

(a) consumption of a significant quantity of alcohol; (b) having insufficient sleep; (c) failing to take prescribed medication to control and manage her stress

iii She increased the risk of falling off the veranda by placing her cigarette on the railing above the missing slats;

iv She failed to rope off or otherwise block the area of the missing slats. 148 The appellant puts that any contributory negligence short of 50% would be unreal. 149 The respondent points to the alleged fact that, at the trial, contributory negligence was only mentioned in a perfunctory manner. 150 The respondent admits that she knew that the slats were missing and took precautions so that children did not fall through. However, her counsel points out that there is nothing to suggest that a reasonable person would think that there was a real risk of an adult falling over and passing through the gap. 151 I accept that submission and do not consider that the appellant has discharged the onus of proving contributory negligence. 152 I finally come to deal with the appellant's submissions that his Honour's assessment of damages was flawed. 153 The attack on damages is in two parts: (a) the primary judge's award of damages for past and future economic loss; and (b) his award for gratuitous care. 154 As to (a), the primary judge awarded the respondent $350 per week from 1 March 2006 up until judgment and thereafter $600 per week for 12 months and an ongoing $350 per week until she attained the age of 65. His Honour then capitalised and discounted by 20% for vicissitudes. 155 The appellant puts that the judge underrated the respondent's capacity to work and to re-train and did not appreciate that any difficulty in her finding work may be a reflection on her lifestyle rather than loss of ability. 156 As to (b), the primary judge awarded 40 hours a week for two months post-discharge from hospital and thereafter 16 hours per week for the next six months, 12 hours per week for the next nine months and then eight hours per week to the date of trial. In respect of future gratuitous care he awarded eight hours per week for 30 years. 157 The appellant says that the fact that the respondent cannot do certain work is accepted. However, the respondent's need for domestic assistance was dramatically reduced from about February 2005. The assistance needed to compensate is shown by the evidence to be more than 4½ hours per week from then onwards. 158 In both (a) and (b) the appellant focuses on the fact that the respondent accepted work as a deckhand in February 2006. This, it is said, illustrates that the respondent was capable of real work. 159 However, the respondent was not able to fulfil the job as a deckhand. The respondent says that all this means is that she hoped that she would be able to do this work, tried it and found, to her disappointment, that she could not. I accept this view. 160 The respondent's counsels' response was that the above submissions were put to the trial judge, considered by him and may have resulted in an award less than that for which the respondent contended and that no valid reason has been put forward as to why he was in error in reaching the result he did. 161 I consider that the respondent's submissions are correct. 162 Accordingly, I would propose that the appeal be dismissed with costs.

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