Riley v The Owners - Strata Plan 73817

Judgment 1MACFARLAN JA: I agree with Ward JA. 2BARRETT JA: I agree that the orders proposed by Ward JA should be made. I also agree with her Honour's reasons. 3As Ward JA makes clear (at [25]), it has been unnecessary to come to any concluded view on whether Dr Edwards' note could be used as evidence not only of the words Ms Riley spoke to him about the state of the ramp and how she fell but also of the truth of what the note records her as having said. The Court has therefore had no occasion to address the effect, in the circumstances, of the hearsay rule in s 59(1) of the Evidence Act 1995, the applicability of exceptions to that rule (including those created by s 64(3) and s 69) or the significance of any status that Ms Riley's oral statement may have as part of the res gestae. 4WARD JA: This is an appeal pursuant to s 127(c)(i) of the District Court Act 1973 (NSW) from the dismissal of claims brought by the appellant (Ms Riley) consequent upon an accident that occurred in November 2009. Ms Riley fell when walking down an external tiled area (referred to consistently by the parties as a ramp) that formed part of a strata title property owned by the first respondent (the Owners Corporation) at Charlestown. Proceedings below 5There is no dispute that part of the ramp was directly exposed to the weather and that, at or about the time of the accident, it was raining. Ms Riley claimed that she had slipped on a lubricant (water) causing her to fall and that she suffered injury, including to her left foot, left heel, left ankle and lower back. Ms Riley brought proceedings against the Owners Corporation in negligence and for breach of statutory duties (arising under s 61(2)(a) and s 62 of the Strata Schemes Management Act 1996 (NSW)). The Owners Corporation cross-claimed for breach of contract against the second respondent (Abigroup), the builder engaged in 2003 in relation to construction works on the property. Ms Riley then amended her claim to include a claim in negligence against Abigroup. Ms Riley claimed past and future economic loss, out of pocket expenses and various other amounts. 6Amongst the particulars of negligence alleged by Ms Riley against Abigroup (in para [4A(q)]), was that it had installed (or allowed to remain) external tiles which, at the time of their construction, did not meet the requirements of a specific Australian and New Zealand Standard for slip resistance classification of New Pedestrian Surfaces. (By its cross claim, the Owners Corporation had alleged that Abrigoup was responsible for the installation and specification of the tiles and the ramp.) Abigroup denied liability (contending that it had not been responsible for the specification of the tiles) and brought a strike-out application in respect of the claims made against it (a ruling on which was deferred until the close of the hearing). 7The primary judge dismissed the whole of Ms Riley's claims. The primary judge found Ms Riley to be an extremely unreliable witness (and rejected her evidence on every occasion where it was contradicted by contemporaneous records). What her Honour did accept was Ms Riley's evidence (given repeatedly) in cross-examination that the area of the ramp where Ms Riley slipped was dry. (Her Honour went on to note that, on one view, it did not matter which version given by Ms Riley as to the state of the ramp was true because the inherently contradictory nature and unreliability of her evidence was such that if her Honour could not be satisfied as to what, if any, of the plaintiff's evidence was true, then Ms Riley had failed to discharge her onus of proof.) 8The primary judge further found that (far from the extent of the injury claimed to have been suffered) the injury sustained by Ms Riley in the fall was a sprained left foot for which Ms Riley had taken one day off work and from which injury she had fully recovered about three months after the accident. Had Ms Riley succeeded on the liability issue, her Honour would have held that her compensable damages were nil. Application for leave further to amend the grounds of appeal 9At the outset of the hearing of the appeal, leave was sought for the filing of a Further Amended Notice of Appeal. The grant of leave was opposed by both respondents (although it was conceded for the Owners Corporation that it could point to no prejudice it would suffer if leave were to be granted). The decision on the application for leave was reserved, to be dealt with in the course of judgment on the appeal. 10The amendments for which leave was sought include, as against the Owners Corporation, that the primary judge had erred in failing to find that the Owners Corporation knew or ought to have known that the ramp was slippery when wet (and had caused Ms Riley's fall), relying on Indigo Mist Pty Ltd v Palmer [2012] NSWCA 239 and Bathurst Regional Council v Thompson [2012] NSWCA 340 ([11]-[12]). As against Abigroup, the amendments sought to be included were that the primary judge erred: in finding (implicitly) that the area where the appellant fell was an external colonnade, walkway or pedestrian crossing rather than a ramp (relevant when considering the classifications used in the relevant building standard); in relying on a particular wet slip resistance test and in failing to find that the relevant standard at the time of construction required the tiles to be a particular class (V); in failing to find that Abigroup was negligent in that it knew the tiles in question did not meet the relevant standard for slip resistance when wet; and in failing to find that Abigroup's negligence caused the fall ([13]-[17]). An additional ground of appeal sought to be raised (presumably against both respondents) was that there was an error in finding that there were gross exaggerations in the history given by the appellant to her doctors and that those gross exaggerations destroyed the weight of the doctors' opinions ([18]). 11In relation to the fresh grounds of appeal sought to be maintained against Abigroup, it is said that, contrary to the primary judge's findings, the tiles as installed failed the relevant Australian building standard and that the primary judge had misconceived the documents and relied upon a test for a different tile (the ground foyer tile) to the tile that was in fact installed on the ramp. Abigroup's knowledge that the ramp tiles failed the relevant standard by a significant margin is said to be established by the fact that the sub-contractor who installed the tiles had rejected other tiles as not meeting the requirements of the standard in March 2004. 12In light of the conclusion I have reached on the central issue in the appeal (the "wet/dry issue") northing turns on whether leave should be granted for the filing of the Further Amended Notice of Appeal. Had that not been the case I would have granted leave for the amendment to include the additional grounds sought to be raised against the Owners Corporation but not as against Abigroup on the basis that Abigroup would have been prejudiced by the lateness of the application. Up until shortly prior to the hearing of the appeal the only appeal ground relevant to Abigroup's position related to which of the other parties should pay its costs (a matter on which Abigroup's Counsel, Mr Weinberger, frankly acknowledged Abigroup had little to say). As it is, I would reject the application for leave further to amend the Notice of Appeal. Appeal Grounds Grounds 1-7 - the wet/dry issue 13Grounds 1-7 (the platform for which was identified as the 'wet/dry issue') focus on the finding that the tiles on which Ms Riley slipped were dry (and that the compensable damages had she succeeded on the liability issue amounted to nothing - a finding said to have been affected by the wrong finding that the surface was dry). It was accepted that if Ms Riley did not succeed on the wet/dry issue then the appeal would fail in its entirety. (Grounds 11-12, had they been the subject of leave, would also broadly have gone to the wet/dry issue.) 14It is contended for Ms Riley that the finding that where she slipped the ramp was dry was against the weight of the evidence and was inherently or glaringly improbable. It is also contended that her Honour's assessment of this issue was affected by various incorrect credit findings (which in turn are said to have infected the finding that Ms Riley had suffered no compensable damage). 15The facts which it is said were against such a finding (or made such a finding glaringly or inherently improbable) were identified as being that it was raining heavily on the day (as supported by a Bureau of Meteorology extract); that the ramp (or, more precisely, part of it) was directly exposed to the rain; that the tiles (whatever their correct classification in accordance with the relevant standard) had been tested and reported as being safe when dry; and (a matter on which much emphasis was placed on appeal) that within a short time of the accident Ms Riley had been examined by a general practitioner (Dr Edwards) who had recorded in his medical notes the words "Slipped on wet ramp coming into clinic - twisted left foot". This medical note was relied on as evidence not only as to what Ms Riley had told her doctor shortly after the accident but also as to the truth of the statement that the ramp was wet (on the basis that it was within the doctrine of res gestae evidence) and it was submitted that the primary judge had failed to take this evidence into account. Senior Counsel for Ms Riley, Mr Curtin SC, also pointed to the accounts given by Ms Riley to subsequent doctors (and her solicitors) as supportive of her initial account that the ramp was wet. 16It was submitted that the evidence given by Ms Riley in cross-examination as to the ramp being dry was so conspicuously inconsistent with her case that it invited scrutiny as to whether that could possibly have been what Ms Riley had there intended to convey. (Mr Curtin emphasised Ms Riley's limited level of education in that regard.) Ms Riley's evidence 17Ms Riley's evidence in chief did not provide clear support for her claim that she had slipped on a lubricant (water) on the ramp and the evidence she first volunteered in cross-examination was that where she slipped the ramp was dry. In chief, Ms Riley said that the ramp "was wet. There were wet patches" (T 58.22); she agreed that the ramp was exposed to the elements (T 59.1); she said that it was raining very heavily (T 59.8), that "parts" of the ramp were very wet (T 59.12) and that there were puddles of water on the ramp (T 59.41). In cross-examination, Ms Riley confirmed that her evidence was that parts of the ramp were very wet (T 89.34-36). However, when asked as to whether it might have been prudent to use the hand-rail, knowing that tiled ramps when wet could be slippery, Ms Riley volunteered that the place on the ramp where she slipped "wasn't wet at that time" (T 90.10). In the course of the ensuing cross-examination, Ms Riley said no less than six further times (T 90.14, 90.17, 90.20, 90.33, 90.39 and 90.47) either that the ramp was dry or that it was not wet, including in response to a direct question from her Honour as to "where you slipped, wet or dry?" where Ms Riley gave the equally direct answer "where I slipped it was dry". 18Mr Curtin submitted that a review of the transcript revealed that Ms Riley was distinguishing between slipping in a puddle of water and slipping on a wet ramp. On the contrary, it seems to me that in the passage of cross-examination referred to above Ms Riley was drawing a clear distinction between the part of the ramp that was wet and the part that was dry (the latter being where she said she had slipped). 19When taken in re-examination to that evidence, Ms Riley said that the evidence she had given about walking where it was dry was not correct and said that "It was wetter on the side where the rain was coming in from ...[than on the left-hand side]". Ms Riley then went on to proffer what appeared to be other explanations (not previously given by her) for the fall including that the tiles were "damp" on which she fell, that her shoes were wet, and that the tiles were gritty or there was grit on them (T 138.1-9). 20Her Honour noted that there was no explanation given for the repeated evidence by Ms Riley in cross-examination that the area where she was walking was dry. The primary judge formed the view that the "re-examination" version of a wet ramp "[was] a fabrication raised at the heel of the hunt in an attempt to revive a moribund claim". 21Pausing there, the critical evidence given by Ms Riley in cross-examination does not appear to have been (and it was not suggested that it was) extracted by forceful cross-examination nor did it appear that Ms Riley had any confusion about the concepts of "wet" or "dry". Her Honour seems to have been careful to clarify what Ms Riley's evidence was as to the state of the ramp where she had slipped. While the context in which Ms Riley first said that the ramp was not wet where she was walking may be seen to have been one in which she was concerned to avoid a suggestion that she had been careless of her own safety, the answer given at T 90.39 could not have been clearer. Ms Riley herself distinguished between making a statement as to the state of the ramp as a whole and saying (as she was) that the part of the ramp where she was walking was dry (T 90.33). Clearly, this was evidence against Ms Riley's interest (and the manner in which that evidence was given in the witness box was something that the primary judge was uniquely in a position to observe). 22Mr Curtin sought to characterise the evidence in cross-examination as a clumsy attempt by Ms Riley to explain why she had chosen not to walk near to the right-hand side rail and emphasised that in re-examination Ms Riley had said that "It was wetter on the side where the rain was coming in from" (which would suggest that the left hand side was also, but not as, wet). However, it is difficult to read Ms Riley's earlier evidence in cross-examination as other than an admission that the area on which she was walking was not wet compared with other parts of the ramp (on which there were puddles of water and which were very wet). Dr Edwards' notes 23Mr Curtin submitted that Ms Riley's oral evidence needed to be (and that it was not) judged objectively against the balance of the evidence and, in particular, Dr Edwards' medical notes (and that before it was found that her re-examination evidence was a fabrication the inconsistency with those medical notes should have been put to her). Mr Curtin emphasised that it was not put to Ms Riley in cross-examination that the account of her accident as recorded in the medical notes was false. He conceded, however, that there was no submission made at trial to the effect that Dr Edwards' medical notes supported Ms Riley's evidence in chief (and in re-examination) as to the wetness of the ramp. 24Statements or observations recorded in the medical notes (or at least those taken by Dr Edwards) are said to form part of the res gestae of the accident, being a record of the account given by Ms Riley immediately after the accident. Reliance was placed on the analysis of the doctrine of res gestae in Cross on Evidence (7th ed, 2004), reference there being made (at [37010]) to the difference in the approaches to that issue of Starke and Dixon JJ in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 530; 531; [1940] HCA 44 as to the test of contemporaneity and as to whether Dixon J's reasons support the view that the res gestae statements in that case were evidence of the truth of the matters asserted. 25Accepting for present purposes that the statement "slipped on wet ramp coming into the clinic" is evidence not only that Ms Riley said words to that effect (that caused Dr Edwards to make the note) but also evidence of the truth of the matter there asserted, the difficulty here is the summary nature of the note. It is by no means clear that any distinction was being drawn by Ms Riley when she described her fall to Dr Edwards between the state of the ramp in general and that part of the ramp where Ms Riley slipped (the distinction that emerged clearly for the first time when Ms Riley was cross-examined). The shorthand description "slipped on wet ramp" in Dr Edwards' notes would be equally consistent with a statement as to the general state of the ramp as with a statement as to the state of the ramp in the precise location where Ms Riley fell. The very caution that, in the context of medical notes recording the complaints made by her of her physical injuries, Mr Curtin submits should be accorded to histories contained in medical reports of this kind is applicable here when weighing Dr Edwards' note against Ms Riley's recollection in the witness box, notwithstanding that the latter was after a passage of time. Subsequent histories given by Ms Riley of the event 26Further, although reference was made to the subsequent giving of consistent histories as to the wetness of the ramp, at least some of those accounts do not support the conclusion that Ms Riley had consistently asserted that the ramp was wet where she had slipped. There was no reference to the circumstances of the fall in the notes of 11 November 2009 and the notes of 18 January 2010 simply referred to a "fall on slippery surface outside this clinic". Subsequent histories given for the purpose of medico-legal reports were given in contemplation of litigation but in any event they tend to refer in very general terms to matters such as it raining heavily and to Ms Riley slipping when entering the medical centre (such as Ms Warner's report at 1.1) or to Ms Riley sitting in the rain (Dr Champion) but not to her slipping on a part of the ramp that was wet at the time. Slip resistance testing of tiles when dry 27Mr Curtin submits that it is inherently improbable that Ms Riley fell on a dry section of the ramp, having regard to the evidence accepted by her Honour in relation to the slip resistance testing carried out on the tiles originally installed in about 2004 that the ramp tiles were safe when dry. However, the contention that those tests amount to evidence that supports the conclusion that Ms Riley slipped on something wet seems to me to involve more than a little circularity of reasoning. It assumes that there was no other possible cause for the slip if the tiles were dry, yet Ms Riley herself postulated various other causes when referring in re-examination to grit on the tiles or to her shoes already being wet. (There must also be the possibility that the cause of the fall was wholly unconnected with the weather). 28The existence of other possibilities for the fall, taken with Ms Riley's clear confirmation in cross-examination that the area on which she slipped was not wet (or was perhaps damp but not the wetter part of the ramp in which there were puddles of water), makes the finding by the primary judge not glaringly improbable. Credit findings 29Mr Curtin's attack on the finding that the tiles in question were dry also focuses on the adverse credit findings made by her Honour. It is contended that those were unwarranted on the evidence and had coloured her Honour's view of the wet/dry issue (presumably on the basis that it made her Honour more willing to accept the version of events given in cross-examination than that given in chief and in re-examination). Mr Curtin pointed to various matters in this regard. Inconsistencies of little moment 30First, her Honour's criticism of the inconsistent evidence as to when Ms Riley's prior knee surgery had taken place. This was something that her Honour herself said was of little moment save to demonstrate that Ms Riley was an unreliable historian. I see nothing objectionable in that observation and in any event nothing in her Honour's reasoning appears to have turned on this. 31Second, what her Honour described as the historically inaccurate evidence as to when Ms Riley commenced work at the nursing home where she was employed at the time of the accident and thereafter. Her Honour said this was less readily explained than the chronology of her arthroscopic procedure other than by "a disinterest in accuracy and carelessness". Her Honour considered that Ms Riley's failure to check detail against records was demonstrative of a general lack of reliability. I accept that the evidence of Ms Riley on this issue made it clear that she was only giving an approximate time on this line of questioning, but that does not itself gainsay the conclusion that Ms Riley's recollection of the timing of events was likely to be less reliable than contemporaneous records. Again, nothing in her Honour's reasoning appears to have turned on this. 32Third, Her Honour suggested that the evidence by Ms Riley as to her earlier work aspirations had not been entirely frank (on the basis that her Honour considered that a frank answer to the relevant question would have made reference to the fact that Ms Riley had (later) completed certain design qualifications). While I accept that this criticism seems somewhat harsh, it does not seem to me that anything turned on this issue in the ultimate findings by her Honour. More significant inconsistencies 33Of more relevance, was her Honour's view as to various aspects of the evidence going to Ms Riley's work history. First, there was an apparent inconsistency between Ms Riley's evidence that she had been working 37-40 hours a week at the nursing home prior to the accident and a letter from her employer that had set out the terms of her part-time employment and stated that working hours were 50.2 per fortnight. Ms Riley's explanation was that the employer's letter set out the working hours that she had been offered but that those were not in fact the hours that she was working. 34The primary judge described Ms Riley's evidence (as to the 37-40 hours issue) as wrong and said that this had been conceded in cross-examination. With respect, it seems to me that the concession made by Ms Riley was simply a concession that the letter stated certain working hours, not that those were in fact Ms Riley's working hours. Further, although her Honour said that there was no simple and innocent explanation for that error, there was an explanation proffered (whether true or otherwise), namely that Ms Riley had not in fact worked those hours. (For whatever reason it seems that there were no relevant work records to which her Honour could have been taken to clarify this issue.) Mr Curtin notes that it was not put to Ms Riley that her explanation was either inaccurate or untrue (and he submits that her answer was consistent with the basis on which some of the cross-examination was predicated). Nevertheless, what her Honour was there left with was an assertion by Ms Riley, unsupported by any contemporaneous record, as to her working hours that was inconsistent with the employer's letter of offer, as to which a degree of scepticism was not unwarranted. 35The second of the matters relating to Ms Riley's work history was the evidence as to an increase/decrease in the number of night shifts that Ms Riley had worked after the accident. In chief, Ms Riley gave evidence that a few months after her accident (probably in the first half of 2010) she had dropped two nightshifts (T 67.27-45) and replaced them with afternoon shifts but that she did not stop doing night shifts altogether (saying "No, I still do two night shifts a fortnight" - at T 67.48). (The relevance of that evidence, for the purposes of Ms Riley's claim, was that the night shifts were more lucrative than the afternoon shifts.) 36Relevantly, in her evidence in chief Ms Riley confirmed that before she made that adjustment (down to two night shifts) she was working four night shifts a fortnight (and that she ended up doing the same number of shifts per week as she had before the accident but that she was working less of the more lucrative shifts). Ms Riley did not specify at what point she had commenced working the four night shifts. The logical conclusion to be drawn from Ms Riley's evidence in chief in my view was that before the accident she was working four night shifts and that after the accident she had been forced to drop two of those shifts and substitute them with less lucrative afternoon shifts ending up with the same overall number of shifts before and after the accident (T 68.2; T 68.10-15; T 68.38). (There was some inconsistency between her evidence and that of her co-worker, Ms Hamson as to which of the night or afternoon shifts was the most demanding, but that ultimately is of no moment and may simply be a matter of personal perspective.) 37In cross-examination, Ms Riley was taken to a letter dated 19 February 2010 in which she had applied for two extra night shifts. Ms Riley had confirmed in cross-examination that her evidence in chief had been that she worked four night shifts and dropped back to two (T 99.34). Faced with the February letter Ms Riley said that she had obviously got her dates wrong and suggested that the two night shifts she had dropped were the two additional shifts for which she had applied in February 2010 (T 99.38-44). Her evidence by this point was that she was working two night shifts before the accident, that she applied for additional shifts and went up to four at some time in 2010, and then she went back to two shifts. 38There was much debate during the appeal as to the significance of that evidence and what her Honour could properly have drawn from it in relation to the night shift issue. What the primary judge concluded was that Ms Riley's working hours had not changed since the accident and that there was a "degree of fabrication" in the exaggeration of her pre-accident hours (the 37-40 hour issue) "which was matched by her evidence about the 'loss' of night shifts relied upon to substantiate her claim". Her Honour found that the evidence as to the loss of night shifts was "just plain false" relying on the fact that Ms Riley had in fact applied (unsuccessfully) in February 2010 to increase the number of night shifts that she had worked. 39The application for additional night shifts in February was seen by the primary judge as supporting the conclusion that by then the sequelae of the accident had been exhausted. Mr Curtin suggested that one could not conclude, by reference to the application in February 2010 for additional night shifts that, by then, Ms Riley had recovered from the injuries sustained in the fall because it did not take into account the possibility of stoicism on her part (a factor recognised in Whalan v Kogarah Municipal Council [2007] NSWCA 5) or Ms Riley's need to support her family. 40As to the finding that the evidence of a decrease in night shifts (from four) to two was a fabrication, Mr Curtin submitted that the February 2010 application for additional night shifts (which it is clear that the employer rejected) did not preclude the possibility that at some time after February 2010 Ms Riley had applied again for (and this time obtained) additional night shifts, which she had later been unable to continue. He maintained that there was a strong inference that the increase to four and then back to two had occurred at some time after February 2010 but during the 2010 year (though it is not clear from what such an inference would be drawn). 41In any event, Mr Curtin maintained that the finding that the night shift evidence was a fabrication was an unfair finding because Ms Riley was not challenged on the proposition advanced by her at the end of cross-examination on this topic that, after the initial rejection of her February 2010 application, Ms Riley did obtain two extra night shifts that she subsequently dropped. It had, however, earlier been put to Ms Riley that her evidence in relation to the need to drop two night shifts because of her injuries was an attempt to deceive the Court as to the true position in respect of her work (T 97.25) and the two-four-two explanation was not given by Ms Riley at that stage. 42In terms of Ms Riley's credit, as I read the transcript of her evidence in chief there was no suggestion that the two night shifts that she said had been dropped and replaced with afternoon shifts were ones that she had only taken on some time after February 2010 (or, indeed, that there was any increase to four night shifts at any stage, as opposed to four being the number of nightshifts she had worked prior to the accident and later reduced). The evidence that Ms Riley had applied for the four night shifts after the accident did not emerge (or did not emerge clearly) until after Ms Riley had been faced with the evidence of her application for additional shifts in February 2010 that suggested she considered herself capable of working those shifts at that time. While the finding that the two to four to two scenario was a fabrication was something not put to Ms Riley, the state of the evidence by that point raised obvious concerns as to the reliability of Ms Riley's recollection of events. 43Apart from relying on the application for extra night shifts in the conclusion that Ms Riley had recovered from the accident by that stage, the significance drawn her Honour from the night shift evidence is that the primary judge described it as the "final piece of evidence" leading to the conclusion that the explanation for Ms Riley's persistent errors in her history of events was fabrication. 44Her Honour also referred to inconsistencies in the evidence as to the number of days that Ms Riley had taken off work after the accident. Ms Riley said in chief that she had three or four days off work and in cross-examination that she "took a few days off work". Various of the doctors' reports also made reference to her taking a few days off work after the accident. Ms Riley was challenged in cross-examination as to this evidence (by reference to a document that Mr Curtin notes was not tendered) and Ms Riley ultimately accepted that it was probable that she had only had one day off as a result of the accident and that this was the day of the accident (T 103.14). (The employer's records showed that no sick leave had been taken at the time other than for the day of the accident.) 45Mr Curtin submits that the finding of fabrication on this issue is unfair because it would have been possible for there to have been a swapping of shifts, as a result of which it could have been correct for Ms Riley to say that she had taken a few days off even though there was no actual sick leave taken or recorded (a possibility not put to, or raised by, Ms Riley). 46(In that regard, adverse credit findings were also made in relation to the evidence of Ms Riley's daughter, who said that Ms Riley had been off work for 2 to 3 days and that she knew this because she had watched her mother stay at home but, when challenged, said that she had just been guessing - T 160.30 - and who had also given evidence about the discolouration of Ms Riley's foot after the fall that her Honour considered, as her mother's evidence had also been, to be exaggerated.) Findings of fabrication 47Mr Curtin submitted that the primary judge was not entitled to make the fabrication findings that she did (it not having been put to Ms Riley that she had been dishonest) and therefore that the trial had miscarried. Mr Curtin supplied, after the appeal, transcript references as to the instances where it was (or was arguably) put to Ms Riley that she was not telling the truth. In summary, those relate to the evidence as to the dropping of the night shifts (though not as to the particular two-four-two scenario) because of physical problems (T 97.22-27; T 96.27); as to the time taken off work (T 103.16); as to the claim of back pain since May 2010 (T 113.46; T 114.46); and as to the wet-dry evidence given in re-examination (T 138.35-40). Clearly, it was being put to Ms Riley that she was fabricating her claim in a number of respects. 48The circumstances in which findings based on credibility assessments may be found to be erroneous are well established (Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [28]; as further explained by Kirby J in CSR Ltd v Della Maddalena (2006) 224 CLR 1 at [19]-[21]). More recently, Beazley JA in Nominal Defendant v McLennan [2012] NSWCA 148 at [141] confirmed that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside simply because an appellate court thinks that the probabilities of the case are against (or even strongly against) that finding of fact; it being necessary for it to be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" (her Honour there citing Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 at 479). 49I do not accept that her Honour's findings as to the wet/dry issue were so glaringly or inherently improbable, or inconsistent with incontrovertible evidence, as to support the proposition that there was a misuse of (or failure to use) the advantage her Honour had in assessing the witnesses before her. Nor do I consider that the findings of dishonesty (in circumstances where there were numerous inconsistencies in Ms Riley's evidence, a number of which were directly relevant to matters going to the strength of her claim and therefore might understandably be seen as giving rise to doubts as to her credibility in general) give rise to a conclusion that the trial miscarried. 50While there is some force to the criticism that it was not necessary for them to be made (particularly having regard to the difference between the rejection of a person's evidence and a finding that he or she deliberately lied and the admonition by the plurality in Smith v New South Wales Bar Association (1992) 108 ALR 55 to the effect that unless it be truly necessary for the purpose of disposing of the particular case a specific finding that deliberately false evidence has been given should ordinarily not be made), the evidence before her Honour could have sustained a finding (without any necessary finding as to dishonesty) against Ms Riley as to the matters on which findings of fabrication were made. Therefore, whether or not there was a proper basis for the findings of fabrication does not mean that the factual findings made by her Honour were incorrect. 51Leaving aside the inaccuracies that her Honour herself noted were of little moment, the significant issue on which her Honour based the ultimate finding of fabrication was the night shift evidence. Ms Riley's evidence in chief on that matter (as was her evidence as to the time taken off work as a result of the accident) was inconsistent. Her explanation in cross-examination of the night shift evidence (seemingly to accommodate the difficulty of the inconsistency in her application for extra shifts in February 2010) was something of which her Honour could understandably be sceptical. (Similarly, the possibility that Ms Riley was making an unstated distinction between taking time off work on paid sick leave and simply not working due to roster changes (of which there was no evidence) is by no means compelling.) The fact that the inconsistencies in her work history went to matters relevant to the quantum of Ms Riley's damages claim was again something of which her Honour could well be sceptical. 52In that light, although it was not necessary for findings of fabrication to have been made in order to dispose of the issues in dispute, I do not consider that those findings infected the finding of fact on the central wet/dry issue. Ms Riley's evidence was quite clear on that issue in cross-examination and the finding that she fell where the ramp was dry (or comparatively dry) is not in my opinion so glaringly improbable as to warrant the overturning of the judgment in the respondents' favour. Mr Curtin made clear that at the heart of the appeal on the wet/dry issue was the reliance placed on Dr Edwards' medical notes. Her Honour cannot fairly be criticised for not placing weight on that particular entry in this context when it does not appear that the significance now sought to be attributed to the notes was raised at the hearing. In any event, I do not agree that the summary note made by Dr Edwards goes so far as to make the wet/dry finding inherently improbable or unavailable on the evidence. Her Honour could, in my view, have reached the same conclusion on the facts before her without making any findings of dishonesty. 53I do not consider this to be a case of the kind that was before this Court in Whalan where it was found that the grounds on which trial judge had considered there to be serious doubts about the plaintiff's evidence were in several respects wrong (and in other respects unconvincing) and that the trial judge's reasons had not engaged with the case presented by the plaintiff. Here, the primary judge did engage with the evidence put before her and accepted the admissions made by Ms Riley in her evidence in cross-examination (which were not objectively inconsistent with incontrovertible evidence). 54Therefore, even accepting that the findings of fabrication may have been overstated and should probably not have been made, I am not satisfied that an inference can be drawn that there was a failure by her Honour to give proper consideration to the evidence before her nor am I satisfied that those findings have worked a substantial miscarriage of justice. (I note that Rule 51.53 of the Uniform Civil Procedure Rules 2005 (NSW) provides that a new trial must not be ordered on any ground unless it appears to the Court that some substantial wrong or miscarriage has been occasioned.) 55Strictly speaking, this disposes of the appeal in the respondents' favour without the need to consider whether (as Mr Curtin contends) the finding as to damage was infected by the adverse credit findings (and without going on to consider the remaining grounds of appeal). However, for completeness, I address those matters briefly. Finding as to injury sustained by the fall 56It was accepted by Mr Curtin that the only significant adverse credit finding was as to whether the aggravation caused by the injury had ceased in February 2010 (when Ms Riley made the application for extra nightshifts that came to light only during the course of her cross-examination). Mr Curtin relied upon the unchallenged evidence of Ms Hamson (who had worked with Ms Riley at the nursing home) to the effect that after the accident Ms Riley's gait had altered; that Ms Riley had limped until the end of 2010; and that she (Ms Hamson) had given Ms Riley painkillers at work over that period, as supporting the claim by Ms Riley that she continued to suffer from the effects of the accident after February 2010. 57Ms Hamson's immediate answer when questioned as to the pain she had observed was to identify that by reference to Ms Riley's knee (T 170.34), though she did go on to add a reference to Ms Riley's foot. To the extent that the matters referred to by Ms Hamson might have been referable largely if not wholly to the pre-existing knee injury, then the fact that her evidence was not challenged in that regard does not establish that the damages finding was incorrect nor that the hearing miscarried unless the causal link was established between the knee pain and the injury. 58The primary judge held that the claim of injury to the left knee (for aggravation of a pre-existing injury) as a result of the accident was defeated by the combination of Ms Riley's lack of credit and "the absence of a contemporaneous record of any complaint to a treating doctor about her knee until 2011". As to the latter, Mr Curtin noted the caution advocated by Basten JA in Mason v Demasi [2009] NSWCA 227 (and acknowledged in McGlen-McLeod v Galloway [2012] NSWCA 368) in approaching inconsistencies between the testimony of a plaintiff and accounts given to health professionals. (As adverted to earlier, this also suggests that caution needs to be shown when considering the "wet ramp" note of Dr Edwards, who was not cross-examined about the circumstances of the consultation; the manner in which the history was obtained; the period of time devoted to that exercise, or the accuracy of his notes.) 59Mr Curtin referred to the evidence given by Ms Riley (though not recorded in the brief notes made by Dr Heard) that after she returned to work she had complained to Dr Heard about the aggravation to her knee. (In that regard, the unreliability of other aspects of her recollection from a chronological perspective would permit a degree of scepticism as to the proposition that it was Dr Heard who had failed to record a complaint made to her by Ms Riley rather than that Ms Riley had not raised this at that time.) While Mr Curtin pointed to the medical evidence that showed gross degenerative changes to the knee and the opinions of Dr Champion (a rheumatologist) and Professor Ehrlich and Dr Bentivoglio (both orthopaedic specialists) that the aggravation of Ms Riley's knee injury would accelerate the need for a total knee replacement in the future, the relevance of those opinions depends on there being a link between the fall and the aggravation of the knee injury in the first place. 60Mr Curtin submits that the only reason the primary judge did not accept those opinions was the inaccurate history of how many days Ms Riley had taken off work after the accident. Certainly, her Honour made reference to the giving of exaggerated and incorrect histories to the medico-legal specialists (this being the subject matter of the proposed final ground of appeal - ground 18). However, in rejecting the claim for injury and disability to Ms Riley's knee and back, the primary judge also referred to the absence of any record of sick leave taken after the date of the accident until December 2009 and the fact that Ms Riley had been referred to a couple of specialists but did not see them (and, in her Honour's view, had given less than credible explanations for that conduct). I am not persuaded that her Honour's finding on the damages issue was against the weight of the evidence. (Insofar as there is criticism now sought to be made of the finding that "gross exaggerations" in the history recorded in the doctors' reports destroyed the weight of those reports, the appellation "gross" may be unduly sweeping but it is the case that the doctors proceeded on a history of events that overstated the initial effect of the fall.) Ground 8 61The appellant contends that the primary judge erred in failing to accept and act upon the report of the expert engineer called by Ms Riley (Mr Fogg) and thus to find a breach of the duty of care against the Owners Corporation. Mr Fogg's report was admitted into evidence without objection and he was not required for cross-examination. It was contended that (at least on the assumption that the tiles were wet where Ms Riley slipped) there was no proper basis advanced by the primary judge for not accepting that report. Mr Curtin noted that the primary judge had been taken to the dicta of Samuels JA in Ellis v Wallsend Hospital (1989) 17 NSWLR 553,587 to the effect that in many cases it may be wrong, unreasonable or perverse to reject unchallenged evidence. Nevertheless, as apparent from the approach in Vella v Permanent Mortgagee Pty Ltd [2008] NSWSC 505 expert evidence must be considered in the context of all the relevant evidence and there may be circumstances where the court may properly refuse to accept even unchallenged expert evidence in favour of other evidence. 62The breaches of duty alleged against the Owners Corporation were of both a common law duty of care and of its statutory duties under the relevant legislation and the particulars of negligence (at least in relation to the latter) seemed to extend to the installation of the tiles and not simply a failure, after their installation, to maintain them or rectify defects with them. 63Hence, the slip resistance of the tiles was relevant to consider both at the time of installation and at the time of the fall. This is significant insofar as there was evidence of testing of tiles (which may or may not in all cases have been the relevant tiles) at different times and the tests carried out by Mr Fogg could not have been relevant to the question of slip resistance at the time of installation. The various slip resistance tests 64The tests to which her Honour had regard included stock tests in 2002 of tiles that her Honour inferred were the main "body tiles" on the ramp (said to have passed the test for class X moderate risk when wet with a British Pendulum Number, or BPN, of 35); stock tests in 2003 of border tiles that had a BPN of 49 (low risk of slipping); a report as to slip resistance testing carried out in August 2003 by Grebnet Engineering for the purpose of the sub-contractor's certification of the tiles (which report referred to the testing of tiles from six different areas and which included a table containing recommendations for minimum pendulum "or ramp recommendations" for specific locations - including "W" for external colonnade, walkways and pedestrian crossings; "V" for external ramps", "X" for entry foyers hotel, office, public buildings - wet and "Z" for those areas when dry); as well as the tests carried out by Mr Fogg in 2010. 65Of the Grebnet report, it was submitted that the most likely tile to be referable to the ramp area was the external entry body tile (tested as being class "X", BPN 35, moderate risk of slipping when wet - assuming the handwritten annotation on the relevant report was correct) and that her Honour erroneously accepted the test referable to the ground floor foyer tile (again assuming the handwritten annotation was correct) being a "W" classification with a BPN of 46 with a low risk of slipping) for "external colonnades walkways and pedestrian ways". 66Her Honour referred to the existence of different standards (those including the building standard for new pedestrian surfaces as well as standards applicable to existing surfaces). Her Honour made clear her opinion that Mr Fogg's report had been unhelpful in providing no specific details about the specifications (such as when they applied and to what; and whether any were applicable) and had simply used the bare words of the titles. That criticism was well-founded. The precise classification of the various pedestrian surfaces for the purposes of the wet pendulum test into categories "V"-"Z" was not the subject of expert evidence before her Honour (and on appeal was the subject of the tender of a single page extract from the AS/NZS 4586:1999 standard showing the BPN ratings for the alphabetical classifications but without clarification of what were comprised therein). The Grebnet report attributed alphabetical classifications to locations but without identification of the particular locations by reference to the property in question. 67The uncertainty as to how the tiled area where Ms Riley fell would be classified for the purposes of determining compliance with the new pedestrian surface standards for slip resistance was something that persisted on appeal. In those circumstances, the suggestion that the primary judge should have found the ramp area to fall within any one or other of the particular designations based simply on the descriptions in the Grebnet report or elsewhere cannot be maintained. Finding as to compliance on installation 68The primary judge accepted that there was evidence that the tiles complied with the relevant standard at the time of installation (by reference to the 2003 certification report). The contention that the ramp tiles did not comply with that standard at the time depends not only on the inference to be drawn from the identification of the particular test report as relating to the ground floor foyer tiles but also that this would not be the correct classification of the ramp area. I am not satisfied that the evidence permits a conclusion to be drawn as to those matters (in which case Ms Riley cannot be said to have met the onus of establishing her claim that the tiles when installed were not suitable or that there was any breach of a duty of care owed by the Owners Corporation in relation to the installation of the tiles). Suitability of tiles at time of the accident - Mr Fogg's report 69What Mr Fogg's report did, however, demonstrate was that the tiles he tested (said to be a representative sample from a location on the ramp identified in the photograph in his report) had a wet slip resistance of around 25-27 BPN. On the classification table (Ex A on the appeal) that would put the tiles in the class "Y" category of tiles with a high contribution of the floor surface to the risk of slipping when wet. (Thus even if those tiles were compliant with the standards for new pedestrian tiles when installed there would be a question as to their present suitability.) 70It was conceded that there was no expert evidence as to the manner in which the tiled area where Ms Riley fell would properly be classified according to that standard, nor was there any express finding as to which of these classification applied to the relevant tiles. Mr Curtin explained that what was argued at the hearing in this regard (by the Owners Corporation) was that the standard required installation of ramp tiles with a classification of "V" and noted that in the course of submissions, the primary judge had queried whether it should be assumed that the relevant standard or classification was for the external entry body tile (classification "X", moderate risk of slipping when surface wet). It seems that no one was in a position to assist her Honour as to the applicable standard and there was no expert evidence that would enable a finding as to what was required by the applicable standard. Insofar as there is criticism that her Honour applied the test referable to class "X" rather than "W", I do not accept that this can fairly be maintained given the lack of assistance given to her Honour on this point. 71It was contended on appeal by Mr Curtin that the relevant tiles should have been slip resistant to the level indicated for external ramps (class "V") (to which a BPN of greater than 54 applied) rather than slip resistant to the level tested in the Grebnet report (which seems to have been recorded as class "X" or a BPN of 35). Whether or not that is correct, it is relevant to note that even if the area in question was properly classified as one to which the "W" classification applied there was still a disparity in the testing by Mr Fogg. 72The basis on which her Honour considered Mr Fogg's opinion to be unhelpful was that Mr Fogg said that he had undertaken "representative slip tests" of the flooring proximate to what he identified as the location of the fall. Her Honour considered that there was nothing to match his testing to the location of the fall and that his photographs suggested that the tests were on the opposite side of the ramp to that where Ms Riley fell. (Her Honour also noted that the testing carried out by Mr Fogg showed that there was a difference in the readings between two sites less than half a tile width apart.) Her Honour also considered that the irrelevance of his report was illustrated by his recognition that after installation factors such as pedestrian traffic, cleaning systems, applied coatings and patterns of wear would affect the characteristics of the surface (though this would not make the report irrelevant on the question of negligence arising from a failure to maintain the tiles). 73While the criticism of the report based on the imprecision of the testing location might be seen as unduly harsh, with the uncertainty even now as to the proper classification (for the purpose of the building standard) of the ramp area I do not accept that it has been shown that her Honour erred in finding no negligence by the Owners Corporation at the time of installation of the tiles and the only question then is as to whether there was a breach of the duties owed by the Owners Corporation as occupier in relation to the maintenance of the tiles. (In that regard it was noted by Mr Curtin that Abigroup had pleaded that if the surface was wet it was an obvious risk as defined in s 5F of the Civil Liability Act 2002 (NSW) - [14] of its defence.) Breaches of duty alleged 74Here a clear distinction needs to be drawn between the respective duties alleged to have been breached by the Owners Corporation. At the hearing below it was submitted that the Owners Corporation had no duty to inspect the tiles for the purpose of determining whether maintenance was required. Her Honour seems to have accepted that submission. On appeal, it was submitted that her Honour was in error in relying on the passages extracted from the judgment of McColl JA in Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 in order to reach the conclusion that there was no duty on the part of the occupier to inspect the tiles. 75Insofar as Mr Curtin suggested in argument that there was a statutory duty to do so having regard to the judgments of Hodgson and Tobias JJA in that case (and that, the Owners Corporation having adduced no evidence of a system for the inspection and maintenance of the tiles, it was established that it was in breach of that duty), I do not read the judgments of their Honours as supporting the contention that there is a statutory duty of inspection of that kind. In Ridis, the question addressed by this Court was whether or not the statutory obligation (recognised as being an absolute obligation - Seiwa Australia Pty Limited v Owners SP 35042 [2006] NSWSC 157) to maintain the common property was one that informed a common law duty of care. The issue was not whether there was a statutory duty to have in place a system to inspect such areas. Rather, the question was whether the occupier's duty of care at common law (as informed by its statutory duty) required strata plans to put in place a system of regular inspection for issues that might require maintenance or rectification. 76While their Honours in Ridis considered that a common law duty of care of some kind existed, the majority (Hodgson and McColl JJA, Tobias JA dissenting) held that the duty did not impose an obligation to obtain an assessment of the premises by specialist experts to ascertain whether any of the materials of which the common property were constructed could be made safer. However, as made clear in Seiwa, as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty. 77Thus, if the tiles as tested showed that (whether as a result of wear and tear after installation or otherwise) the wet slip resistance of the tiles had deteriorated or was at a level inappropriate for the ramp area, then there would be a breach by the Owners Corporation of its statutory duty (and it would be obliged to take proper steps to rectify the situation) for which it would be liable for any damage occasioned by the failure to comply with its statutory duty (irrespective of whether that breach might also have sustained a claim in negligence at common law). 78The primary judge did not clearly distinguish between the two bases on which the claim against the Owners Corporation seems to have been put. I accept that the tests carried out by Mr Fogg, assuming they were of tiles sufficiently proximate to where Ms Riley fell to enable an inference as to the tiles on which she fell, support the conclusion that there was a breach of the statutory duty to maintain the common property as those tests showed a high risk of slipping when wet. However, the difficulty for Ms Riley is that she failed in establishing that she had in fact suffered damage as a result of any such breach of duty so nothing turns on any error in this respect. Ground 9 79As I understand the submissions raised on appeal, this ground is raised only in the event that it were to be found that Ms Riley succeeded in her appeal against the Owners Corporation but the judgment in favour of Abigroup remained in place. It was submitted that, the Owners Corporation having first joined Abigroup (contending that, by reason of a breach of contract, Abigroup was solely liable for the accident), it was "appropriately cautious" for Ms Riley also to join Abigroup as a second defendant. The hearing proceeded on the basis that Ms Riley's claim against Abigroup relied upon evidence in the command of the Owners Corporation. Hence it seems to be argued that if the Owners Corporation's evidence did not sustain a finding against Abigroup, then it should have contributed to the costs awarded in Abigroup's favour. 80I see no basis for such a conclusion but in any event the premise on which this ground is based has not been made out. Ground 10 81Ground 10 of the Grounds of Appeal (namely that the primary judge erred in determining that Ms Riley's claim against Abigroup should have been struck out) relates to the finding made by her Honour (and recorded in the orders made on 18 October 2011) that the proper outcome of a strike-out application that had earlier been made by Abigroup in respect of the plaintiff's claim prior to the commencement of the hearing (but deferred to be dealt with as a preliminary matter at the hearing) should have succeeded. It seemed to be accepted that the relevance of that determination went no further than in relation to costs. 82Abigroup had brought its strike-out application in respect of both Ms Riley's claim and the cross-claim by the Owners Corporation. It contended that those claims disclosed no reasonable cause of action. Mr Weinberger submitted to her Honour that there was no nexus between a contractual obligation arising under the design and construction contract to which Abigroup was a party and an obligation on its part (the source of which had not been identified in the pleading) to rectify a structural defect. (The relevant allegation against Abigroup was that it had been negligent in the design and installation of the tiles.) The primary judge formed the view that it was difficult to deal in a pre-emptory fashion with the cross-claim and therefore that it was pointless to deal with the like application in relation to the plaintiff's claim (T 15.45) and deferred a ruling on the respective strike-out applications until the end of the hearing. 83It was submitted for Ms Riley, on appeal, that there should have been a similar ruling on the strike-out application against her claim as that made in respect of the Owners Corporation's cross-claim against Abigroup and that at the conclusion of the hearing her Honour should not have held that Abigroup's strike-out application against her should have succeeded at the outset. Whether the strike-out application in respect of Ms Riley's claim against Abigroup should or should not have been acceded to at the outset of the hearing is beside the point. On the findings made by her Honour the claims against Abigroup failed. Nothing turns on the fact that, with hindsight, the primary judge found that Abigroup's notice of motion filed on 29 September 2011 (which sought to have Ms Riley's claim struck out) should have succeeded. Conclusion 84For the reasons set out above, I would dismiss the application for leave further to amend the Notice of Appeal and I would dismiss the appeal from her Honour's judgment with costs.