Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd; AMP Office & Industrial Pty Ltd v AMP Capital Investors Ltd;

Judgment

1. The plaintiff claims damages for injuries which she alleges were sustained on 12 August 2008 when she tripped upon exiting a lift in a building known as Stamford House at 20 Loftus Street, Sydney. The lift had failed to level accurately at the floor upon which the plaintiff was alighting. She alleges that a small step was created and she tripped over it. The defendants to this action and their respective capacities are as described in the following paragraphs.
2. AMP Capital Investors Ltd ("Capital Investors") occupied the building at relevant times, subject to individual tenancies. In particular it occupied the lifts and the area on Level 1 immediately adjacent to the lift doors where the plaintiff suffered her accident. The registered proprietor of the property is Kent Street Pty Ltd ("Kent Street") but it is agreed between the parties that full care, control and management of the premises was delegated by that company to Capital Investors.
3. ThyssenKrupp Elevator Australia Pty Ltd ("ThyssenKrupp") has at all relevant times carried on a business which includes the servicing, maintenance and repair of lifts. Relevantly to the present case, in the period 2006 to 2008 inclusive ThyssenKrupp carried out the regular periodic inspection, testing and maintenance of the two passenger lifts installed at 20 Loftus Street. These services were carried out pursuant to a contract dated 20 March 2003 made between Capital Investors (under a former name) as Principal and ThyssenKrupp as Contractor ("the Comprehensive Maintenance Contract"). The term of this contract was initially five years. It is common ground between the parties to the proceedings that it continued in force beyond the five years and that Capital Investors and ThyssenKrupp respectively continued to perform it throughout 2008, at least.
4. ISS Integrated Services Pty Ltd ("ISS") in 2007 and continuing through 2008 carried on a business of managing and overseeing the performance of building maintenance contracts between other parties. With effect from 1 July 2007 ISS was engaged under a contract with Capital Investors, self-described as a "Soft Services Agreement". This Agreement related to numerous properties including 20 Loftus Street. By Clause 22.8 the Soft Services Agreement required that ISS appoint in respect of each property a Facilities Manager. ISS appointed Mr Peter Ray as Facilities Manager for 20 Loftus Street and for four other properties in the same city block. In broad terms the Soft Services Agreement required that ISS through Mr Ray would exercise day-to-day supervision of the performance of various "Managed Contracts" with respect to 20 Loftus Street including the ThyssenKrupp Comprehensive Maintenance Contract.
5. The plaintiff alleges that each of Capital Investors, ThyssenKrupp and ISS owed her a duty of care which was breached on 12 August 2008 as a result of Lift 1 failing to stop accurately at Level 1 of the building. The basis upon which a duty of care is sought to be attributed to each of these defendants will be considered later in these reasons.
6. By a separate Amended Statement of Claim the plaintiff has sued Kent Street for the same damage arising out of the same trip accident. The action against Kent Street is based upon pleaded allegations that it was at all material times the owner of the premises and owed a duty to the plaintiff to ensure that they were safe. That action was commenced in 2010 and the proceeding against the other three defendants was commenced in the following year. Both proceedings were instituted in the District Court, transferred to this Court and then heard together.
7. It appears that the plaintiff probably commenced her action against Kent Street upon the basis of a Real Property Act search and an assumption that the registered proprietor would be the occupier of common areas of the building. The common position now taken by the parties in this Court is that Kent Street is not the occupier and I consider that there is no capacity in which it owed a duty of care to the plaintiff.
8. At the time of the trip accident on 12 August 2008 Ms Schneider was employed by AMP Capital Office & Industrial Pty Ltd ("Office & Industrial"). This company was party to a Property Management Contract with Capital Investors which commenced on 1 July 2008. Although the written contract was not signed until March 2009 I infer that Office & Industrial performed the services described in the contract from its agreed commencement date and that it was paid in accordance with the contract from that time.
9. The Property Management Contract required Office & Industrial to provide services in respect of a large number of properties, including 20 Loftus Street. One category of service to be provided was financial management - invoicing tenants, collecting rent, paying outgoings, estimating tenants' share of outgoings and providing information to Capital Investors about income and expenditure, to facilitate budgeting, financial reporting and the preparation of tax returns.
10. A second category of Office & Industrial's services under the Property Management Contract was tenant management. This included the documentation of leases and managing physical (as opposed to financial) aspects of tenant occupancy - authorising fitouts, approving tenant signage, ensuring that premises would be made good upon tenants vacating and the like.
11. A third aspect of the Property Management Contract was building management. This was to include regular inspection of each property "to ensure that the required standard of presentation, cleaning, aesthetic repairs and operations are being maintained" (Schedule of Services, Part 1, Clause 3(c)). Office & Industrial's work is further described in Clause 3(d) in Part 1 of the Schedule of Services: "(d) Property operations, supervision and management of contractors delivering Hard Services maintenance and Soft Services."
12. "Hard Services" is defined in Clause 1.1 of the Property Management Contract to mean "a property's building structure and items relating to construction and installation as well as physical plant and equipment". "Soft Services" is defined to mean "non-trade based services such as cleaning, security, evacuation and landscaping etc".
13. Many more services are described in the Schedule of Services to the Property Management Contract and are therefore within the scope of Office & Industrial's obligations. However what has been described above is sufficient to show that, for 20 Loftus Street amongst many other buildings, Office & Industrial had obligations both with respect to the commercial management of the property (referred to by the witnesses as "property management") and with respect to the physical and operational management (referred to by the witnesses as "facilities management").
14. Since the plaintiff's trip accident of 12 August 2008 Office & Industrial has made substantial workers compensation payments to her. By a Statement of Claim filed 21 October 2014 Office & Industrial has claimed against Capital Investors, ThyssenKrupp and ISS recovery of these payments. This claim is made pursuant to s 151Z(1)(d), Workers Compensation Act 1987 (NSW). The recovery action has been heard together with the two proceedings brought by the plaintiff.

The plaintiff's employment in 2008

1. Number 20 Loftus Street is a nine storey commercial office building. By about mid 2008 most if not all of the leases in respect of the property had expired. The subdivisible lettable areas of the building were either vacant or occupied by tenants holding over pursuant to expired leases or otherwise on short term tenures.
2. In those circumstances Office & Industrial, as the entity which had contracted to Capital Investors to undertake commercial management of the property, wished to sign up tenants in respect of all lettable areas for terms which would continue to the end of 2010. The plaintiff was employed by Office & Industrial to assist with this for six months from 18 June 2008 to 19 December 2008. The letter describing her position, duties and terms of employment is dated 20 May 2008. Although it is on letterhead of "AMP Capital Investors" the opening sentence is an offer of "temporary full time employment with AMP Capital Office & Industrial Pty Ltd". The terms of this letter were evidently accepted by the plaintiff as she did commence the employment.
3. The letter describes the position offered to the plaintiff as that of "Property Manager, Level 4, in the AMP Capital Office & Industrial Business Unit". Duties were said to be those "set out in your annual Performance Agreement which you should enter into with your Manager shortly after the commencement of employment in your new position".
4. The evidence does not establish that any such document was entered into. The letter instructed that the plaintiff should "report to Gary Quig, Divisional Asset Manager". Mr Quig was the plaintiff's "Manager" within the meaning of that term as used in the employment letter. He gave evidence but did not identify any schedule or list of duties that the plaintiff was required to undertake.
5. By the time of accepting this employment the plaintiff had acquired some experience in real estate management. She completed her Higher School Certificate in 1990. She studied real estate management at a TAFE college at Crows Nest for two years, 1993 and 1994. In mid 1996 the plaintiff obtained a position as a receptionist in a business which involved real estate sales and investment. She continued with that until 1997 at which time she took employment with Ray White Commercial Real Estate in the central business district of Sydney. She was there concerned with sales of strata titled office space. Whilst in that employment the plaintiff undertook further study towards a Bachelor of Land Economics Degree. She ceased her employment in 2002 for the purpose of studying full time to complete the degree course. That had been achieved by the end of 2004.
6. The plaintiff then obtained employment with Jones Lang Lasalle Property Management in the Sydney central business district, from May 2005 to the end of 2006. With this firm she managed a property portfolio, including liaison and negotiation with tenants. From January 2007 she worked for another city real estate business, Savills, initially full time in early 2007 and later part time through to the first half of 2008. The work was that of a leasing agent for a portfolio of properties owned by the National Australia Bank.
7. Although Office & Industrial's employment letter of 29 May 2008 does not say so, the buildings in relation to which the plaintiff was employed as a property manager included 20 Loftus Street, an adjacent building and three further properties at the back of these buildings facing onto Young Street which is parallel to Loftus Street. Office & Industrial managed this entire group of five properties, comprising most of a city block, pursuant to its Property Management Contract with Capital Investors.
8. According to Mr Gary Quig the plaintiff "was responsible for the daily running of the properties", including 20 Loftus Street. She was "responsible for tenancy matters, administration and income issues and had daily if not weekly meetings with the ISS Building Supervisor, Mr Peter Ray". For the purpose of carrying out his duties as Facilities Manager, in discharge of ISS's obligations under the Soft Services Agreement, Mr Ray occupied an office on the first floor of 20 Loftus Street.
9. Mr Quig's evidence did not include any clear account of what the plaintiff was actually instructed to do with respect to 20 Loftus Street in performance of the job for which she had been employed. He said that the plaintiff was designated as property manager for the building and: "… would be responsible for … liaising with the …. tenants in regards to income, raising income, negotiating leases and then also the operational issues which I have discussed previously [ie. such as repairs, maintenance, cleaning, security, electricity, plumbing, lifts and air conditioning]. She would be the person on site that would deal with those issues, well, not on site but deal with those issues primarily from the facilities manager through to the asset management".
10. With respect to any responsibility the plaintiff may have had for what Mr Quig termed "operational issues", this answer, particularly the last sentence, does not describe any duties in a concrete or meaningful way. Moreover it is expressed in terms of practice (what the plaintiff "would" do) but no evidence was given of any course of conduct amounting to a practice which would establish the scope of the plaintiff's duties.
11. Later Mr Quig said that with respect to any breakdown or malfunction of the systems in the building it was the task of Mr Ray as the Facilities Manager appointed by ISS to call a contractor to assess the problem. In the case of a small value repair Mr Ray had authority to instruct the serviceman to undertake the work forthwith. If more substantial work was required Mr Ray would request that a quote be submitted to Office & Industrial. He also said that: "… depending on the … size of the … problem … [Mr Ray or ISS] would consult with the property manager, and if need be, the property manager may consult with the asset manager".
12. As Mr Quig identified the plaintiff as the property manager this answer suggests that she would have some involvement. But at its highest the answer only suggests that the plaintiff would become involved in a repair issue if the cost of repair was likely to be substantial and if Mr Ray or someone else on behalf of ISS raised it with her. There was no evidence to show that at any time during her employment up to the date of the accident the plaintiff had ever received a referral from Mr Ray about the need to attend to any maintenance item, whether minor or substantial and whether in relation to the lifts or any other aspect of the plant or machinery of the building. Further, there was no evidence to suggest that the plaintiff had ever received any instruction that she was required as part of her job to take any responsibility for seeing to the rectification of a maintenance item referred to her, if there should be such a referral.
13. In cross examination Mr Quig agreed that so far as what he termed "operational matters" were concerned the plaintiff was "there to an extent as someone who passed up the line to the assets management branch a request which might require the expenditure of substantial monies". He agreed that "Mr Ray was the man who was keeping an eye on the fact that the building was running alright". Mr Quig expressly did not recall what discussions he had had with the plaintiff in the first month of her employment. He did not claim to have instructed her that she had any responsibility for assessing the mechanical performance of the lifts at 20 Loftus Street or reporting on any perceived deficiency in them or any possible requirement that they be replaced or mechanically upgraded.
14. The plaintiff's evidence was that from when she commenced in the job on 18 June 2008 her task was "largely to negotiate one hundred leases in respect of the four buildings owned by [Capital Investors]". She said the role also required her "to look after the arrears of any rent outstanding, to liaise with [Mr Ray] and to prepare financial records of the income and expenditure of the four buildings". Although she referred to "four" buildings in this part of her statement, the Property Management Contract, the Soft Services Agreement and her own evidence at T 180 show that there were five relevant buildings.
15. In cross examination of the plaintiff by counsel for Capital Investors an attempt was made to establish that her duties had included some degree of oversight of the maintenance of the building, to the extent of informing herself about any deficiencies in their condition including in relation to plant and machinery such as lifts, and taking measures to have any such deficiencies rectified. The point of this questioning was to try to establish that the plaintiff was herself the person (or a person) bound by the obligations of her employment to exercise reasonable care to see that the lifts were kept in proper working order and did not fail to level and to make recommendations for replacement or upgrading if the lift equipment should not perform satisfactorily. I find that the plaintiff's employment carried with it no such responsibility. Nor did she assume any such role.

Plaintiff's description of her accident - in chief

1. The plaintiff signed an evidentiary statement on 15 March 2015 and adopted it at the commencement of her evidence in chief. She described the tripping incident on 12 August 2008 in these paragraphs (with emphasis added): "17. On the day of the accident, 12 August 2008, I walked from my office at 50 Bridge Street to 20 Loftus Street so as to speak with Peter Ray. At about 12:30pm I entered the building at Loftus Street from the ground floor. I pressed the call button on Elevator 1. The lift arrived and the two centre opening doors opened. The lift carriage was empty. I moved inside and pressed the destination button for Level 1. Upon arrival at Level 1 the lift carriage stopped and the doors opened. I attempted to exit. As I moved over the threshold, my left foot caught on an uneven part of the exit which, on later inspection, I saw that there was a raised portion of about 4cm higher than the floor of the lift carriage. As my foot caught, I lurched forward at about 70 degrees from the vertical. I jerked back in an attempt to save myself from falling and immediately felt a burning pain across my shoulders. I yelled out to Peter "Peter, I have tripped. Come out please." 18. As Peter arrived I said to him "We need to lock off the lift to prevent the lift moving any further." In response Peter used his special lift key to lock off the lift. 19. After the event, I moved into Peter Ray's office. We were there for about 3 minutes. During that time or shortly afterwards, Peter made a phone call to ThyssenKrupp to have them attend to fix the lift. The technician arrived at 1:00pm. I then had a cup of tea in the coffee shop next door with Peter Ray, then I returned to my office to resume work. After I returned to the office I met my boss, Gary Quigg. I informed him that I had just sustained an injury in a lift at 20 Loftus Street and mentioned to him that the lift had not levelled out properly and that the lift mechanics were called to make repairs. During the rest of the day I remained in the office. I was shocked, I was in pain and I was incapable of concentrating on any work matters. I left the office at 5:00pm."
2. Several features of this account are important for comparison with oral evidence given by the plaintiff and with the evidence of Mr Ray. First, the expression "on later inspection" in para 17 clearly conveys that the plaintiff did not see the relative levels of the lift car floor and of the fixed floor at the time she tripped. This may be readily accepted. The fact that the trip occurred at all is at least consistent with - and provides some circumstantial evidence of - her not having looked down and seen the difference in levels at the time when her left foot caught.
3. Secondly, there is no suggestion in these paragraphs that the plaintiff turned back to see the degree of difference in levels immediately after she recovered her stance following the trip. Nor does she suggest in this statement that she turned and walked back to the lift after recovering to a stable upright position or that she then pressed the lift call button on the wall to hold Lift No 1 at the floor upon which she had just alighted. The absence of any such assertions becomes significant in light of her later evidence in cross-examination, to be referred to shortly.
4. Thirdly the fact that the plaintiff says in para 17 that she "yelled out to Peter 'Peter, I have tripped. Come out please'" indicates that when she made the evidentiary statement she recalled Mr Ray not having been in the immediate vicinity of the lift doors but inside some other area from which he was summoned to "come out". During Mr Ray's evidence he drew a sketch, Ex 1.4, which showed that the foyer in front of the lifts was about 2 metres wide and 3 metres long (across the face of the lift doors). Past the lift doors the foyer extended another 3 metres to the left from the viewpoint of a person exiting the lifts, to a door which led in to a large ante room. This ante room was about 6 to 7 metres across. At the far side of it was a second door leading into Mr Ray's office in which he was seated at the time the plaintiff tripped. I accept Mr Ray's evidence about the floor layout and dimensions and concerning his position at relevant times.
5. Fourthly, para 18 of the witness statement also confirms that Mr Ray was not in the lift foyer when the plaintiff tripped and nor was he nearby, such as in or close behind the doorway which led off the lift foyer to the ante room. Paragraph 18 commences with the words "As Peter arrived…". I infer that when the plaintiff made her statement she recalled Mr Ray coming from some other place to her location, in response to her having "yelled out to him". I find that that other place was Mr Ray's office.
6. Fifthly, the plaintiff's statements in para 18 that she requested Mr Ray to "lock off the lift to prevent the lift moving any further" and that he "used his special lift key to lock off the lift" amount to an assertion that the lift had remained at Level 1 up to this point and that Mr Ray locked it off there. Mr Ray has said that this did not occur, in evidence which I will recount later in these reasons.
7. In evidence in chief the plaintiff described the tripping accident in answers partially extracted as follows (at T 111.41 - 114.12) "Q. Can you tell us what happened when you got to the first floor? A. The lift didn't align and it-- Q. What do you mean by the lift didn't align? A. It was below the floor level and I tripped. Q. What was below the floor level? A. The lift was below floor level and-- Q. I'm sorry, could I ask you to distinguish the floor level of the building and the floor level of the lift? [112.2] A. This is the lift and that's the floor level so. HIS HONOUR Q. You're indicating with your right hand the lift floor level is of lower level than your left hand which is the fixed floor level of the building. A. This is the fixed floor and the lift stopped below, below the level of the, the floor. TOOMEY Q. Are you able to give us an estimate of the distance below the building floor level that it stopped? [112.15] A. I'm not really sure but it might be, have been about that much. ... Q. Sorry, what do you think the distance was, Ms Schneider? [112.20] A. I'm not entirely certain but it was probably be about that much. Q. What do you think is the distance you're indicating there? [112.23] A. Probably about an inch and a half to 2 inches. … HIS HONOUR: Between 38 and 50 millimetres. ... Q. Did you notice at the time the lift stopped that there was that discrepancy between the floor of the lift and the floor of the building? [112.34] A. No. Q. Did you go to leave the lift? A. Yes, I did. Q. What happened? A. As I exited the lift, I tripped. Q. How did you trip? Tell us what part of your body contacted what part of? A. I went forward on one foot and was jerked back and forth. Q. I'm directing these questions to what part of your body struck what part of that gap? A. My, my foot. Q. Yes, which foot? A. My left foot, I believe. [113.1] Q. Yes, what was the result of that? A. I then - I tripped then. Q. What happened then? A. And then Peter Ray-- Q. I'm sorry, what happened when you tripped? A. I got a very - wishlap (as said). Q. I'm sorry. How did your body move when you were tripped? A. It went forward and then back. Q. Was it a conscious movement to pull yourself back or was it? A. It happened very quickly. Q. So you-- A. Yes, so I was - I wasn't in control, it just happened. I tried to save myself so obviously - and then I went forward and I went back. Q. Were you aware of anything about your body when you did that? A. Yes, my neck. Q. What were you aware of? A. I got an automatic burning and searing pain across my shoulders. Q. Had you ever experienced such a pain before? A. Never. Q. What did you do when you had tripped and you recovered yourself? A. Peter Ray was waiting for me. Q. What did you do? A. I, I screamed, I believe I screamed. I was in a lot of pain and I'd had a terrible fright. Q. Can you tell us what you said when you screamed? [113.38] A. I don't think I said anything, I just, I just screamed out ouch, that I was in pain, and then I tried - I then I got Peter Ray's attention, he came out and helped with me. Yes. Q. Did he come out and see you at the lift? [113.43] A. Yes. Yes, he looked at - he locked the lift off. Q. Did you tell him what had happened? A. Told him what had happened and he automatically I told him to lock the lift off so he - we locked - he, he, he just went and locked the lift off and then ..(not transcribable).. Q. Were you present when Mr Ray made a phone call to ThyssenKrupp? A. Yes, I was. Q. Did they arrive? A. Yes, they did. Q. Was that a Mister - we know his name, doesn't matter. They arrived at about 1 o'clock I think, did they not? A. Yes. Q. What was the time you think of your accident? A. Just after a quarter past 12."
8. In this passage the plaintiff made it explicit that she had not noticed the level discrepancy at the time the lift stopped: T 112.34. She did not assert that she had seen any level discrepancy let alone the height of the step created, as she tripped. She did not say when if at all she had made an observation upon which she could have based her estimate of the height difference at "an inch and a half to two inches" (T 112.23, being 38.1mm - 50.8mm). Notably the plaintiff said "I'm not really sure" (T 112.15) what the height difference was and with respect to a differential of one and a half to two inches, which she illustrated with her hands, she said "it might be, have been, about that much" (T 112.15) and later "it was probably about that much" (T 112.20).
9. The uncertain way in which the height differential was stated is to be considered together with the absence of nomination of any point in the whole sequence of events at which she made an observation upon which such an estimate could be based. In those circumstances, her estimate is for all practical purposes completely unsupported and not a basis upon which I could make a finding that the level differential was within that range or any range.
10. Consistently with her evidentiary statement the plaintiff in oral evidence in chief (as quoted at [36]) did not suggest that she had turned and walked back to the lift, to stop it at Level 1 by pressing the call button, after she recovered her stance following the trip. In this passage, when stating that after Mr Ray arrived on the scene he "went and locked the lift off", the plaintiff did not suggest that she had held it at Level 1 by depressing the call button on the wall in the meantime.
11. With respect to Mr Ray's location at the time the plaintiff tripped, her answer that she "got Peter Ray's attention, he came out and helped with me" (T 113.39, emphasis added) is consistent with Mr Ray having been in his office or, at least, not in the lift foyer and not in or behind any doorway off it, at the time the plaintiff alighted from the lift.

Plaintiff's description of accident in cross-examination

1. Counsel for Capital Investors cross-examined the plaintiff about the circumstances of the tripping incident at T 182.26 - 191.26. Omitting some questions and answers which I consider not material and omitting objections and repetitions the evidence was as follows: "[182.26] Q. You pressed level 1? A. Yes. Q. Then the doors opened? A. Yes. Q. You started walking out? A. Yes. Q. The next thing you know is that your left foot got caught? A. Yes, I tripped from the lift. Q. You didn't fall down onto the ground. A. No. Q. You tripped and in the process of falling you were able to stumble and regather your balance? A. Yes. I got, I got like a whiplash, thrown forward and then back. Q. So you've gone back and it's in the process of coming back up you've somehow got a whiplash, you say? A. Yes, I, I did get a whiplash. Q. You said that you were aware of immediate terrible pain in your neck and right across your shoulders. Is that correct? [183.1] A. Yes. Q. You immediately cried out for help? A. Yes. Q. Is that correct? A. That is right. Q. Do you say someone came out to help you? A. Peter Ray came. Q. You were asked some questions about the height differential between the floor of the lift and the outside floor. Do you remember that? A. Yes. Q. You weren't able to say with any certainty what sort of height differential there was. Do you remember that? … [183.25] HIS HONOUR Q. What counsel is doing is referring you to evidence that you gave this morning-- A. Yes. Q. --when you were asked about the height difference and he's put to you that when you answered those questions this morning you weren't able to state with accuracy or precision what the height difference in the floors was. A. Yes. Yes. POLIN Q. Is that right? Because you'd stumbled out of the lift. A. Yes. Q. And you'd recovered your balance and come back up and you were immediately in pain? A. Yeah. Q. Your first reaction was to call out to someone? A. Yes. Q. Is that right? A. Peter. Yeah, when I was - Peter Ray used to stand at the door waiting for me if he knew I was coming over, so he, he - I don't know if he saw me [184.1] stumble out, I have no idea. I don't, I don't believe he did, but he came very quickly and locked the lift off. Q. I want to suggest to you that in fact by the time you stumbled and got yourself up and realised you were in pain, the lift had actually shut behind you. A. No. That lift, that lift was locked off and there is a lift docket saying that of the call out time and the lift docket also says that it had - that it wasn't immediately meeting at floor level and there was, in fact, a gap between the floor level and the lift. Q. I want to suggest to you that the doors closed and you didn't actually ever see the difference in height between the level of the lift and the level of the floor. A. No. Q. That's right, isn't it? A. No. No, that's not right. It's not right. … Q. Peter Ray was in his office, wasn't he? A. I just said he was - he has a glass door and stands - he used to stand there and wait for me when he knew we were coming - when I knew - he was - I was coming because we'd always go downstairs and have a coffee. Q. I want to suggest to you on this particular day you went into his office and he was not standing at the door waiting for you? A. Well, I don't know. I don't believe that to be true at all. That's not how I remember it. Q. I want to suggest after you've reported the incident to him that he has to press the button to get the lift to come back up to level 1. A. I don't recall it being that, that way. Q. It's only after he did that that he was able to lock the lift off? A. No. The, the lift remained on level 1 and I, I instructed him to take it out of [184.38] action. I was pretty hysterical. … [185.34] POLIN Q. The lift arrived at level 1, you went to get out. Your left foot got caught and you stumbled or tripped forward. You attempted and, indeed, did regain your balance by bringing yourself back up. I think you said you got a whiplash doing that. You felt immediate pain in your neck and across your shoulders and you were hysterical, that Peter Ray was standing at his door, which I take it is close to the lift. You immediately gave him an instruction to shut down the lift and he was in possession of the key to the lift and before the lift doors closed he got into the lift and shut it down. Is that the way you say it happened? A. No. HIS HONOUR Q. What's different about it, Ms Schneider? What's counsel misunderstood in that? [186.1] A. Well, it's made - it's been made to made out that there wouldn't have been the time. Q. Don't worry about the impressions-- A. But that's not right. Q. --that might be gained from it or anything argumentative about it, but just concentrate on the-- A. It's only how I remember it. Q. --facts of the sequence. A. I remember that when I tripped Peter Ray - when - and I've already said this, I'm repeating myself I'm sorry, but he used to wait at the glass door, his glass door, and wait for me, so he knew there was something wrong because he heard me. Now, I can keep the lift on that floor by pressing the call button, [186.16] okay, and then it stays on the floor, so that's what I probably did and he comes out with the lift key and locks it off. Then we called ThyssenKrupp straight away and we went down to the downstairs foyer and we waited for them for half an hour to arrive and I waited until they fixed the lift. Now, the lift docket clearly states that there was a levelling issue that day and how much it [186.21] hadn't levelled by. … [187.5] HIS HONOUR Q. What did you say? Just explain what stop button you have spoken about in your earlier evidence. A. I said the call button on the outside of the lift stopped the lift from moving so Peter Ray had time to get out and lock the lift off. I never said I got back into the lift and I never said I pressed the stop button. It's not what I said. [187.12] [POLIN] Q. You never originally said that you got back up and went and pressed the call button to stop the lift leaving the floor? A. It wasn't a matter of getting back up. I was virtually knocked my face open on the, on the tenancy it was so close. So I could turn around and press the call button so the lift didn't go anywhere. And Peter Ray's office was from about here to that second - the bench behind where the girls are sitting. Q. I understand you could do that, but what I'm suggesting to you is you didn't do that. A. Didn't do what? Q. Press the call button. A. I - how do you - why are you saying I didn't do it? Q. Because I want to suggest to you that when you went into Peter Ray's office and came back out with him and the lift had already gone. [187.29] A. But that, but you're making up a story. I don't understand. … [188.49] Q. I'll just go back a step at a time so you're clear. It's not in your evidentiary statement, is it, that you pressed the call button-- A. No, it's not. Q. --to keep the lift on the level. A. No, it's not. Q. Mr Toomey asked you how the incident occurred, and you didn't say in answer to his questions that you went back and pressed the call button to keep the lift on the level, did you? A. No, I did not. Q. And when I first asked you how it actually happened, you didn't say that you went back and pressed the lift button to keep the lift on the floor, did you? A. No, because how I interpreted what you were saying is you were, you, you were trying to put words in my mouth, that I'd done this and I'd said this and I'd done that, when I hadn't at all. So I, that's why I didn't understand your, [189.16] your line of questioning. … [189.40] Q. All I'm suggesting to you is only after I put the long question to you and suggested how ridiculous that series of events would have been, that you for the first time said that you went back and pressed the call button to keep the lift on the floor. A. I don't agree. HIS HONOUR Q. When have you previously referred to that, if at all, Ms Schneider? A. I, I haven't-- Q. The fact that you pressed the call button? A. I, I haven't, I haven't, your Honour. [190.1] Q. And why hasn't that previously been referred to in your accounts? A. I'm not sure. We're going back seven years and it's really quite different and difficult, and I know that's - because I had to keep the floor on level till Peter Ray came to lock it off, lock the lift off, take it out of service. But I didn't go back into the lift and press the stop button and that's, that's not my - that's in, in my statement. I didn't enter the, I didn't re-enter that lift again to press the stop button, so-- POLIN Q. I want to suggest to you that in terms of the circumstances of your trip, you did not ever have the opportunity to observe and accurately identify the difference in level between the lift and the floor outside. A. That was confirmed when the lift, when the lift - ThyssenKrupp was called out to, to level - realign the lift, and it was in the lift service docket, how much it had not levelled to the floor. Q. So-- A. I believe there is a copy of that somewhere. Q. So when you're giving evidence about your estimate as to-- A. Yes. Q. --the difference in height between the lift-- A. Yes. Q. --floor and the-- A. Yes. Q. --level of the floor, you're basing that upon a document that ThyssenKrupp-- A. No. Q.--created that identified a difference in level. A. No, I, but I also - when, when the lift was locked off I was able to see as well. [190.41] Q. So I want to suggest to you that the lift was only locked off after Mr Ray called for the lift to come back to the floor. A. No, that's not correct. The lift remained on level 1. The lift remained on level 1. I've maintained that the whole time. That's what I'm trying to say. It remained on level 1. HIS HONOUR Q. With the doors opened? [190.51] A. With the doors open, your Honour. … [191.18] Q. You have said that you have always maintained that the lift remained there. A. Yes, yes. Q. And with the doors open. A. Yes. Q. Where have you previously said that? A. In, in here today, and I was trying to say it before when it was taken that I [191.26] said I got back in the lift and pressed the stop button, but I didn't do that."
2. This subject was returned to at T 201.5 - 201.22 and at 202.14 - .16: [T 201.5] "Q. Just going back to a couple of the matters I dealt with yesterday, I want to suggest to you at no stage were you able to accurately identify the difference in level between the lift floor and the outside floor. A. I believe it was about that much. Q. I know you believe that. A. Two inches. Q. I want to suggest to you that that is nothing more than a guess that you're making after the event? A. No. I saw, I saw the - it was about that much, but the lift docket from the call out to fix the levelling issue will say exactly how much it was on level 5. If you refer to that it will be on that, I believe. Q. Every time I ask you the question you refer back to that particular document and I want to suggest to you that the evidence you're giving about he (sic) height differential in the lift is based on your seeing that document? A. No. No. … [T 202.14] Q. You said yesterday you didn't look down and see the height differential before you walked out. That's what you told us yesterday. A. No. I wasn't aware until I'd tripped out of the lift."

Mr Ray's evidence concerning the day of the accident

1. The statement of Mr Peter Ray made 12 June 2015 contained these paragraphs regarding the tripping incident: "14. I remember that Eugenie came into my office one day and said words to the effect of, 'The lift didn't level. I've hurt myself'. 15. Eugenie was upset. I sat her down and then went and isolated the lift."
2. At T 369.35 and following Mr Ray gave evidence in chief that he was in his office "just after lunch" on the day of the incident, when the plaintiff entered the ante room (as described at [33]). He heard the outer door (leading off the lift foyer and into the ante room) being opened and he went out from his office to meet the plaintiff. She appeared to be "in some distress" and was about halfway across the ante room.
3. Mr Ray helped the plaintiff into his office and seated her in a visitor's chair. She said she had tripped coming out of Lift No 1. Mr Ray took his "independent lift key" and "went out and located the lift because the lift had left the floor [ie Level 1] at that stage". He went down the fire stairs to the Ground Floor, pressed the Lift No 1 call button on the wall and when it arrived locked it off and turned out its lights. When the lift was locked off the lift doors remained open.
4. Mr Ray gave evidence that Lift No 1 "appeared normal" with respect to levelling at the Ground Floor. He next contacted ThyssenKrupp to advise that there had been an incident of Lift No 1 not levelling correctly and to arrange attendance of a serviceman. He returned to his office. The plaintiff said she was alright and did not need to be assisted back to her office in another building. She left.
5. In cross-examination Mr Ray said that early in the plaintiff's employment, for the first "couple of times" when she came from her office to meet with him at 20 Loftus Street, she had phoned ahead to say she was coming and he waited for her at the door of his office. However he did not do so on this occasion, which was over seven weeks into her employment. During those seven weeks she had visited his office on average twice per week. Mr Ray denied that he had been waiting for the plaintiff near the door between the ante room and the lift foyer and that he went out to the plaintiff after hearing her call out in distress. He also denied that he had isolated the lift at Level 1.
6. It was not put to Mr Ray that the plaintiff was holding the lift at Level 1 by depressing the call button on the lift foyer wall at any time when he could have observed this. His account of events was directly contradictory of this proposition. He recalled first seeing the plaintiff nowhere near the Level 1 lift call button but, rather, halfway across the ante room and, therefore, several metres from the call button. Mr Ray had a specific recollection that he went down to the Ground Floor where the lift indicator board was located. Upon ascertaining where Lift No 1 was, he brought it down to the Ground Floor and isolated it there.
7. I accept Mr Ray's evidence. He gave a clear account of the plaintiff coming into the ante room and of his own action in then isolating the lift at the Ground Floor. He has no interest in the outcome of the proceedings and no reason to represent events otherwise than in accordance with his honest recollection. The occasion was evidently memorable to him because of the apparent distress of a young woman with whom he had a working relationship and because of the necessity for him to assume responsibility for having the faulty lift stopped and rectified.
8. The plaintiff's counsel suggested that Mr Ray's memory was poor and that this was evidenced by his lack of recollection of a Hazard and Risk Assessment of the lifts at 20 Loftus Street which Mr Ray had commissioned from ThyssenKrupp in October 2006 and which he had discussed with a ThyssenKrupp representative at that time ("the Assessment"). I do not consider that his lack of recollection of the Assessment demonstrates a general significant deficiency of recall. Mr Ray was no more than a conduit in relation to this Assessment, as between ThyssenKrupp and his superiors in the company which employed him in 2006, Resolve Engineering Pty Ltd trading as Resolve FM. Mr Ray was not the decision maker with respect to the findings and recommendations of ThyssenKrupp contained in the Assessment. He had no occasion to revisit it or think of it again in the nearly nine years between having received the document and the date when he gave evidence.
9. Similarly, I reject the plaintiff's criticism of Mr Ray's powers of recall based upon his lack of recollection of an asserted second fault report logged with ThyssenKrupp the day after the plaintiff's trip incident. For reasons stated at [62] by reference to the ThyssenKrupp service records I am not satisfied on the balance of probabilities that Mr Ray ever did make a second call to the lift service company on 13 August 2008. It is equally possible that the ThyssenKrupp documents merely record a second attendance pursuant to the original call on 12 August. In any event, Mr Ray had no particular reason to have retained a memory of having summoned a ThyssenKrupp serviceman a second time on the day after the plaintiff's accident, if that did occur. His failure to recall this event is not significant in my assessment of his general reliability.
10. Further, Mr Ray's evidence regarding the plaintiff entering the ante room and concerning him descending the stairs to the Ground Floor to lock off the lift is a positive recollection which in significant respects contradicts the version of events given by the plaintiff in cross-examination. For Mr Ray's evidence in these respects to be displaced it would require more than merely a demonstration that he has tended to forget some things and that he therefore may also have forgotten others.

Rejection of plaintiff's evidence concerning the aftermath of the trip

1. Having regard to the manner in which the plaintiff answered questions in cross-examination (see [41] - [42]) and the sequence in which aspects of her account of critical events emerged during that questioning, I do not accept her case that Peter Ray came out to her in the lift foyer so soon after she had tripped that, upon doing so, he was able to and did lock the lift off at Level 1. I reject the plaintiff's evidence that she held the lift on Level 1 by depressing the call button until he arrived. I do not accept that she would have had the presence of mind to do so, given that she was, in her own words, "pretty hysterical" (T 184.48) and, in Mr Ray's assessment, "in some distress" (T 370.4). In claiming to have detained the lift on Level 1 the plaintiff was at best tentative. She said that pressing the call button on the lift foyer wall was "what I probably did": T 186.16, quoted at [41].
2. The plaintiff's claim in this respect is rendered highly unreliable by the fact that she made no mention of having held the lift until Peter Ray arrived in her evidentiary statement or in her oral evidence in chief. Such an action on her part would surely have been mentioned in one or both of those places if she had a genuine recollection of it. The plaintiff could offer no explanation for not having described her supposed action in this respect at any time earlier than her cross-examination: T 190.4 - .10.
3. The plaintiff had a strong motive to embellish her recollection in this way during cross-examination because it was made clear to her that she was under challenge as to whether she had had any opportunity to observe the height of the step created by the lift having stopped out of level. Counsel put to her early in the cross-examination that the lift door had shut behind her: T 184.5. From my observation of her in the witness box and from her educational attainments I find the plaintiff to be an intelligent woman who would have well understood the difficulty for her case if she could not establish that the lift had remained at Level 1 where she could have observed the height of the step.
4. The only contemporaneous record of what occurred tends to confirm Mr Ray's evidence (that the lift was not held at Level 1 until he came out and locked it off there) and to rebut that of the plaintiff. At Ex D p 524 is an ISS Incident Report prepared by Mr Ray (T 371.50), signed by him and dated the day of the incident. The substance of the report reads as follows: "It was reported by the property manager (Eugenie Schneider) to Peter Ray that she tripped on the lift sill exiting the lift on Level 1. Eugenie has indicated that the lift did not stop level with the floor causing a trip hazard. Eugenie indicated that she has injured her neck in the incident. Peter Ray placed a service call to ThyssenKrupp Elevators for a technician to check and adjust lift N#1. Peter then removed the lift from service on the ground floor. The ThyssenKrupp technician arrived on site at 1300 and made adjustments to the lift. The lift was returned to normal operation at 1500. Service docket 352124. The lift was working ok when checked later in the afternoon."
5. The fact that Mr Ray recorded only what the plaintiff told him about the lift not having stopped level with the floor and did not record any observation of the degree to which Lift No 1 was out of level is a strong indication that Mr Ray did not see the lift held on Level 1 by Ms Shneider in the position in which it had caused her to trip. Further, the report notes that Mr Ray "removed the lift from service on the ground floor" - not by locking it off at Level 1 where the plaintiff claims to have held it.
6. My acceptance of the evidence of Mr Ray and rejection of the plaintiff's claim that she observed the height of the step upon Peter Ray locking the lift in the position from which it had caused her to trip means that the plaintiff has failed to establish on the balance of probabilities what it was she tripped on. This is fatal to her endeavour to prove breaches of duties of care alleged to have been owed to her by the defendants.

Findings of the ThyssenKrupp serviceman on 12 August 2008

1. ThyssenKrupp's contemporaneous reports following the investigation by its serviceman of the malfunction of Lift No 1 on 12 August 2008 do not assist the plaintiff to establish the height of the out of level step upon which she tripped. As I have found that the lift was not locked off in the position in which it had been when the plaintiff alighted, the Thyssenkrupp serviceman could not and did not make any record of how far out of level it was when the incident occurred. The serviceman's record for 12 August 2008 (incident number 256989 at Ex D p 493) records the customer complaint in these terms: "(Peter Ray) Lift 1 not levelling on any floors. See Peter on arrival. ETA required".
2. I find that this is an inaccurate record of Mr Ray's telephone request for service. I accept his evidence that the only knowledge he had of the lift not levelling on 12 August 2008 was what the plaintiff had told him, which referred to the position of the lift on Level 1. I accept his evidence that he did not have any opportunity to see the lift's accuracy of levelling at any other floor before he called it down to the Ground Floor and locked it off.
3. The service report summarises the findings and actions of the technician in these terms: "Replaced up levelling selector contact. Adjusted up and down levelling selectors. Checked operations and couldn't fault. Returned to service."
4. A further serviceman's call out report (No 257119) dated 13 August 2008 also appears at Exhibit D p 493. The request for service is recorded as: "(Peter) Lift 1 not levelling". As stated at [51] Mr Ray had no recollection of making a second request for service of the lift on 13 August 2008. The author of this record was not called. The evidence does not permit me to find on the balance of probabilities that a second call in these terms was made. It is just as likely that the same ThyssenKrupp serviceman (Mr Palanisamy) decided to return to the building on 13 August 2008 because he had been unable to find a fault on the preceding day and because the matter was of some significance in that a lift passenger had been injured. If that is what occurred it would be quite consistent with the circumstances that ThyssenKrupp's service record for the second visit should identify the call out request in the terms quoted above, intending thereby to refer to a single call out from Mr Peter Ray received the preceding day.
5. On 13 August 2008 the serviceman's finding was: "Adjusted levelling cam. Checked operations & returned lift back to service".
6. ThyssenKrupp prepared a third party accident report on or about 12 August 2008 (Ex 2.1 p 352 - 354). This recorded the manner in which the accident occurred (evidently having been related to ThyssenKrupp by Mr Ray) in these terms: "The lady tripped as she exited lift resulting in pain to the neck. It was stated that the lift was not level with the landing (exact difference from car to landing not mentioned)".
7. In the same report, the remedial action taken was described as follows: "Checked lift levelling on all floor (sic) in both directions (no level to be found in excess of 7mm). Replaced UP levelling brush and check of selector levelling and stopping brushes with minor adjustments made".
8. These records of ThyssenKrupp do not remedy the gap in the plaintiff's evidence in the fundamental respect of lack of proof of the degree of levelling inaccuracy on the day of the accident.

Characteristics and performance of the lifts at 20 Loftus Street

1. Both of the lifts in the building are of the same type and were installed in approximately 1972. This case concerns only Lift 1 and I will refer to its features in the singular, although they are equally applicable to the other lift which was side by side with it. The following description applies to Lift 1 as it operated from installation in 1972 up to the date of the accident and for some time after.
2. The lift mechanism was of a type known as "gearless traction". An electric motor at the top of the lift-well powered a winch which raised and lowered the lift car on cables. A composite piece of mechanical and electrical machinery at the top of the well, known as the selector, was able to regulate the stopping of the lift. It received and was activated by electrical signals from the floor selector buttons in the lift car and from the call buttons in the lift foyers. By these means passengers were able to call the lift to a floor and, once inside it, choose where it would stop.
3. Uncontested evidence given by a highly qualified and experienced lift consultant, Mr JE Thompson, has established that there are a number of features of a gearless traction type lift system such as that described above which may cause the lift car from time to time to stop in a position where the lift floor is not precisely level with the fixed floor of the building at the destination selected. First, any of a number of influences could cause the voltage of the electricity supply to the electric motor to vary. This would translate into a variation of the speed at which the hoist would raise or lower the lift and, in particular, the speed at which the lift would level in to a particular floor. Variants in the levelling-in speed could result in the lift overshooting or failing to reach its ideal position in the lift-well.
4. Secondly, wear on certain components of the selector (referred to as "cams" or "pie plates") could cause inaccuracy in the stopping position of the lift. Thirdly, weight sensors fitted under the lift-car floor could become inaccurate over time. This could cause the machinery to miscalculate the amount of power reduction required to allow the lift to slow in to a stop. The result would be, again, either overshooting or failure of the lift to reach its intended level.
5. In general terms Mr Thompson described the selector as "a mechanical device with electrical relays attached to it" and as being "mostly mechanical rather than electrical". As a result of these features Mr Thompson's opinion is that it was inherent in this type of lift that it would "from time to time provide poor floor levelling accuracy". The lift could at times stop 25mm to 30mm out of level and the incidence of such discrepancies could be quite "random and infrequent". He said that failure to level accurately would be unpredictable. Mr Thompson estimated that, given the characteristics of this lift, 90% of the time it would level to within plus or minus 10mm to 12mm. In Mr Thompson's experience a lift of this type could fail to level accurately (that is, there could be greater than 10mm to 12mm differential) even when brand new, immediately after installation. He considered that the incidence of out of tolerance levelling would increase with the age of the machinery.

October 2006 Hazard and Risk Assessment by ThyssenKrupp

1. In their endeavour to attribute fault and legal liability for Lift No 1 having stopped out of level on 12 August 2008, the plaintiff and ThyssenKrupp relied heavily upon the Assessment which had been carried out by ThyssenKrupp in October 2006 with respect to the 20 Loftus Street Lifts (referred to above at [50]). These parties both asserted that Capital Investors knew of the Assessment and knew from it that Lift No 1 was at high risk of inaccurate levelling.
2. The plaintiff contended that this knowledge on the part of Capital Investors should lead to a finding that it owed a duty to lift passengers such as the plaintiff to exercise reasonable care to prevent such levelling inaccuracy from causing injury. The plaintiff's case was that the scope of this duty of care extended so far as to require Capital Investors to replace the lift machinery with more modern components capable of greater levelling accuracy. ThyssenKrupp relied on the Assessment as showing that it had discharged its duty of care to the plaintiff by providing advice to Capital Investors of the risk that the lift would not level accurately and a recommendation that the machinery be upgraded.
3. The Assessment was prepared upon the basis of an inspection by one of ThyssenKrupp's employees, Daniel Lewin, on 13 October 2006. A letter from Mr Lewin to Mr Ray dated 20 October 2006 proves that this Assessment was carried out at the request of Mr Ray. Mr Ray did not recall having made the request. I do not find that surprising given that he was asked about this subject nearly 9 years after the event and that his role in relation to the Assessment would have been minimal. I have found at [50] that he was a mere conduit in relation to it, with no responsibility to evaluate the Assessment or to make any decision about whether its findings should be addressed by the commissioning of new lift equipment or by refurbishment of the existing lift machinery or otherwise: T 379.29 - 380.14; 391.21 - 394.
4. At the time of the Assessment Mr Ray was employed by Resolve FM. In 2006 and continuing up to 30 June 2007 Resolve FM fulfilled much the same role as that undertaken by ISS under the Soft Services Agreement from 1 July 2007 (see [4]). Mr Ray changed employment from Resolve FM to ISS at about 1 July 2007. He said that in relation to obtaining an assessment such as that of October 2006, although he does not recall the document specifically, he was "like, the messenger": T 390.40 - 391.17.
5. The author, Mr Lewin, is a qualified electrical lift mechanic. In 2006 he worked as a business development manager for ThyssenKrupp: T 457.5. In 2006 ThyssenKrupp had a practice of sending out an annual letter to its customers offering to carry out a Hazard and Risk Assessment of the kind that was done in October 2006 for 20 Loftus Street. Mr Lewin did "hundreds" of these reports in the course of his business development work: T 455.20. The reports were done for a small fee. Their evident purpose was to encourage building owners to make substantial capital investments in new lift equipment or significant upgrades.
6. The Assessment was written up on a pro forma document prepared by the Australian Elevator Association. The several components of lift machinery to be assessed were pre-printed, each followed by a list of possible alternative assessments. Small circles next to these alternatives enabled one of them to be selected for each component assessed, by checking a circle.
7. The Assessment of October 2006 has a coversheet to show that it relates to Lift No 2 at 20 Loftus Street. However the evidence is that the two lifts were identically equipped and it would have been apparent to any reader of the Assessment that it was equally applicable to Lift No 1. Mr Lewin confirmed that the report related to both lifts. The Assessment contained this entry, being No 5 of 83 entries, under the heading "Stopping/Levelling Accuracy": "Requirements to be checked: floor levels to be within +/- 10mm and levelling accuracy of +/- 20mm. Requirement fulfilled: No [selected by checking a circle] Level of risk: High Corrective action(s): 1. Change to regulated drive [selected by checking a circle.]
8. The word "High" against "Level of Risk" was pre-printed on the form. Mr Lewin explained entry No 5 at T 442.35 - .42 in these terms: "A. The floor level to be within plus or minus 10 millimetre is on stopping, so either within 10 mil tolerance above floor level, or 10 mil tolerance below the floor level, that's stopping. Now the 20 mil accuracy, of levelling accuracy, with that particular technology you can have a shift in weight through a number of people leaving a lift and the level could - the lift could potentially jump out of floor level. Now if it goes above 20 mil the lift would have to relevel back to floor level. Anything below 20 mil the lift would not relevel and then the doors would close and then the lift would take off."
9. At T 455.33 - .36 he gave this answer: "Q. As at 13 October 2006 the lift could well have been levelling perfectly at that time? A. That's correct, but that technology was, was - it was possible that the levelling could, could change at any, at any time, given time."
10. Mr Lewin could not recall whether he actually rode the lifts to all floors or to a sample of floors to spot check the levelling accuracy of Lift No 1 or Lift No 2 in the course of preparing the Assessment (T 448 - 449). He was certain that he would not have checked the re-levelling accuracy (as explained at [88]): T 448. With respect to his marking the "No" circle against the requirements for levelling and re-levelling he said at T 449.2: "A. I've put in the "no" circle because there's no way you can guarantee on that technology that the floors - the floor levelling will be within that tolerance."

Receipt of the Assessment by Mr Ray

1. The letter of 20 October 2006 from Mr Lewin to Mr Ray to which reference has been made at [74] is sufficient to show that Mr Ray received the Assessment. A further letter of 8 November 2006 from Mr Lewin records that he met with Mr Ray and discussed the Assessment with him at about that date. This second letter sets out quoted prices for some improvements to the lifts which Mr Lewin had recommended. I infer that Mr Ray had requested a quotation of prices for these selected items during his meeting with Mr Lewin.
2. Mr Ray agreed that if he had seen an assessment referring to a lift levelling issue such as item No 5 quoted at [78] he would have regarded it as significant because of the potential for a lift passenger to be injured "stumbling out of the lift": T 393. However he said that his opinion on the best way to deal with any such issue "may or may not have been asked" by his superiors: T 393.39.

Capital Investors' imputed knowledge of the Assessment

1. There is no direct evidence that Capital Investors ever received the Assessment. Nor is there definitive evidence that it did not. On the last day of the hearing Capital Investors tendered its verified list of discoverable documents as purported proof that the Assessment was not received: it was not one of the documents on the list. The admissibility of the verified list for this purpose was disputed. I have concluded that the list of documents should be received but that it is only evidence of what was and was not discovered. The list of documents does not exclude the possibility that the Assessment was received but was subsequently mislaid and that the facts of its initial reception and of its subsequently being mislaid are not known to personnel of the company amongst whom due search has been made for the purposes of discovery in these proceedings.
2. I consider that it is immaterial whether any employee or officer of Capital Investors actually ever received the Assessment. I find that it was certainly received by Resolve FM, through Mr Ray, and the knowledge of Mr Ray and of Resolve FM must be imputed to Capital Investors because Resolve FM obtained the Assessment in the course of acting as the agent of Capital Investors in circumstances in which it was Resolve FM's duty to pass on such information to Capital Investors: Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658. The facts relevant to the application of that principle are considered in the following paragraphs.
3. This case is not concerned with a principal who owed a duty of investigation and disclosure to a third party and who delegated the disclosure function to an agent, as in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in Liq) [2003] HCA 25; (2003) 214 CLR 514. It is clear that the agent's knowledge is attributed to the principal in cases of that type. Where the principal is not under such a duty to a third party to investigate a factual question and to make disclosure in relation to it, information received by an agent during the subsistence of the agency will likewise be attributed if it has been received in the agent's capacity as such and if the terms of the agency require that information of the kind should be provided to the principal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [126], [127]; El-Ajou v Dollar Land Holdings Plc (No 1) [1994] 2 All ER 685 per Hoffmann LJ at 703.
4. As referred to at [3], on 20 March 2003 Capital Investors as "Principal" entered into a Comprehensive Maintenance Contract with ThyssenKrupp, which continued in force in October and November of 2006 (Ex 2.1 at Tab 1). Clause 1 of this contract required ThyssenKrupp to perform the services described in Attachment B (Ex 2.1 pp 29 - 37). Clause 2 provided that Capital Investors nominated Resolve FM as "Superintendent" to "act on [Capital Investors'] behalf and exercise any of [Capital Investors'] powers and duties under this contract". Clause 2.2 required that ThyssenKrupp "must communicate directly with [Resolve FM] as the Principal Nominated Representative [of Capital Investors] in relation to all matters under this Contract unless otherwise notified to the Contractor under Clause 2.1". The Contractor's obligations, set out in Clause 5, included that ThyssenKrupp would "communicate with [Capital Investors] on all matters relevant to the Contract".
5. The effect Clauses 2.2 and 5 combined is that ThyssenKrupp was required to communicate with Resolve FM, which would suffice as communication with Capital Investors, in relation to all matters relevant to the contract.
6. It is apparent from the evidence of Mr Lewin regarding the circumstances in which he completed and provided the October 2006 Assessment (see [74] and [76] above) that this was not done pursuant to the Comprehensive Maintenance Contract of 20 March 2003 between Capital Investors and ThyssenKrupp. There is no clause of that contract which required the preparation of such an assessment. Nevertheless, in my opinion the provision of the Assessment was a communication with Resolve FM in relation to a matter under the Comprehensive Maintenance Contract. In particular item 5 of the Assessment, drawing Resolve FM's attention to the "high risk" that the lifts at 20 Loftus Street would not level to within plus or minus 10mm and that replacement of the controlling mechanism with a "regulated drive" would be required to address this, clearly related to "matters under this Contract".
7. I find that by virtue of Resolve FM's status as the "Superintendent" and "Principal Nominated Representative" under the Comprehensive Maintenance Contract, once information of this nature came into Resolve FM's hands from ThyssenKrupp, whatever the occasion, Resolve FM was bound to communicate it to Capital Investors. Capital Investors is therefore to be treated as having acquired the knowledge by operation of the principle in the cases cited at [85] and [86].

Capital Investors ought to have known of the limits of levelling accuracy

1. Even if knowledge of item 5 in the Assessment were not to be imputed to Capital Investors upon the basis outlined above, the limitation on levelling accuracy inherent in the mechanism of Lift No 1 was something of which Capital Investors, as the entity in control of the lifts and of the foyer spaces adjacent to them, ought to have known. A company occupying the position with respect to these lifts that Capital Investors did ought reasonably to have appreciated that levelling inaccuracy could be hazardous to lift passengers. It ought reasonably to have made enquiry of appropriately qualified people as to whether the lifts installed at 20 Loftus Street were adequately reliable with respect to levelling and with respect to the minimisation of hazard to passengers.
2. The entity to which such enquiry would obviously have been directed would have been ThyssenKrupp. It is apparent from the evidence of Mr Lewin given in these proceedings and from the contents of the October 2006 Assessment which he authored that, if asked, he would have readily informed Capital Investors of the propensity for unpredictable and intermittent out of level performance. These lifts were installed in the early 1970s (Ex 2.1 p 379). A reasonable occupier in the position of Capital Investors would, 30 to 35 years after installation, have made periodic enquiries of its service provider regarding whether the performance of the lifts was deteriorating and how their performance compared with that of more recent installations.

Limited significance of Capital Investors knowledge of levelling inaccuracy

1. Knowledge of item 5 in the Assessment, attributed to Capital Investors through the agency of Resolve FM from about October 2006, does not equate to knowledge in Capital Investors of a high risk of accident or injury. The high risk that was signified by item 5 was that of the lift stopping out of level by more than 10mm. Mr Lewin was not qualified to give any opinion as to the degree of risk to a lift passenger from any particular height of step created by the lift stopping out of level. Even an expert in biomechanics could only comment upon the degree of risk of a trip or fall by reference to each of the various possible step levels which might be created by inaccurate stopping of the lift. The Assessment did not convey and was not intended to convey that the out of level condition which might at times arise would pose a high risk of injury.
2. Similarly, that which I find Capital Investors ought to have known is that Lift No 1 might stop out of level but not that this would necessarily be dangerous to passengers irrespective of the degree of the levelling inaccuracy.

No contractual standard of lift levelling in the Comprehensive Maintenance Contract

1. Item B.2 of the services listed in Attachment B (at Ex 2.1, p 29) required that for the duration of the contract ThyssenKrupp would maintain the lifts and their performance "within the tolerances specified in the performance criteria endorsed 'Standard of Performance' in accordance with Clause B.7".
2. Clause B.7.1 (Ex 2.1 at p 32) stipulated that an initial survey "Check List" was to be prepared and endorsed "Standards to be Maintained". The document was required to be "signed and dated on the same day by an authorised officer of" Resolve FM and of ThyssenKrupp. Clause B.7.1 continued as follows: "These Check Lists shall be evidence of the condition and performance of the installation and within the tolerances specified in the Check Lists, shall be the condition and performance to be maintained throughout the Contract Period".
3. Clause B.7.1 further required that the endorsed Check List should be retained in duplicate, one copy by Resolve FM and one by ThyssenKrupp and included in Attachment D to the contract. There is such an initial survey check list in Attachment D (Ex 2.1 at pp 56 - 58). However this does not appear to have been signed and adopted by the parties as envisaged in Clause B.7.2, following upon the execution of the contract.
4. The initial survey check list provides (in item J at p 58) that the lifts' "Rated Levelling Accuracy" was "+ or - 12mm", that the "Allowable Tolerance" was "+ or - 5%" and that the "Measured" value was "+ or - 10mm".
5. I am not satisfied on the balance of probabilities that this check list was ever adopted as required by Clause B.7.2 in order for it to have contractual effect. Items B and C of the initial survey check list at p 56 make provision for signature by the representatives of Resolve FM and of ThyssenKrupp, respectively. No signatures have been affixed. Even if it was adopted contractually, the check list does not explain what is meant by "Allowable Tolerance". In particular, it does not explain what the value "+ or - 5%" means in relation to "Allowable Tolerance". It begs the question: 5% of what? The check list does not explain what, if anything, is the difference between the "Rated Levelling Accuracy" and the "Measured" value.
6. Further there is nothing in the initial survey check list to state whether any particular levelling accuracy is required to be achieved one hundred percent of the time, given the evidence of Mr Thompson about the limitations of this lift equipment (see [69] - [71]). This must be regarded as a significant uncertainty concerning the operation of the check list and therefore regarding the stringency of ThyssenKrupp's obligation. Levelling to within plus or minus 10mm or 12mm one hundred percent of the time was unachievable.

Measures required to improve the levelling accuracy of the lifts

1. Mr Lewin and Mr Thompson gave evidence that reliable levelling within a tolerance of plus or minus 10mm could only be achieved by completely changing the "driver" or controller of the hoist system and the selector system to more modern technology: T 490.24; Lift Technician's Conclave Report, Ex H, para 8; T 439.30, 440.35 - .46. This technology was first introduced for new and replacement lift installations from about 1983 (T 477.26, 482.48). The newer technology uses a variable frequency drive unit which controls an electronic motor for the hoist by electronic means. This system is quite different from that which controlled the hoist for these lifts as described at [67] to [71]: T 439.33, 477 - 478, 481.1 - .17.
2. Replacement of the drive units for these lifts would cost $100,000 each (T 485.15). Making this change would also require replacement of the gearless hoist of each lift, which would increase the cost "exponentially": T 485.30 - .40. The subject lifts were replaced after 2008 at a final tender price of $475,200: Ex 2.1 p 438. Even with this complete change of machinery levelling accuracy could not have been expected to be any greater than plus or minus 6mm (Ex H, para 8).

Performance and maintenance of lifts immediately prior to 12 August 2008

1. Mr Ray had occupied his office on Level 1, 20 Loftus Street for about 2 years prior to the accident. Before that he had had an office at 50 Bridge Street for a year and from there he visited the subject building every day. Thus for three years in total before the incident Mr Ray had daily opportunity to observe the performance of the two lifts and he "didn't find any issues" (T 373.25). He never saw either of the lifts stop on a floor out of level in any degree, let alone by one and a half to two inches. When he had seen a lift stop out of level in one of the other buildings nearby, for which he was also responsible, he had taken it out of service until a technician had been called to site and had corrected the lift's function.
2. Notwithstanding this evidence there are some records of ThyssenKrupp which show instances of levelling inaccuracy of one or other of the 20 Loftus Street lifts in the three years prior to the incident. These occurrences were very few.
3. On 16 August 2005 there was a report to ThyssenKrupp: "lift 1 jumping and not level on M lvl" (presumably the mezzanine level): Ex D, p 472. The serviceman checked the lift's operation and could find no fault. He returned it to service.
4. On 15 January 2008 Lift No 1 was reported by Mr Ray as "stuck on Level 9 and not levelling": Ex D, p 477. The technician found that a "shutdown selector" had to be adjusted.
5. Those are the only instances of an out of level problem being reported. From 29 September 2003 to July 2008, a period of nearly five years, there were 32 service calls for Lift No 1. That is, an average of one every seven and a half weeks. All but those on 16 August 2005 and 15 January 2008 involved faults other than levelling. Many of the other fault reportages resulted in a technician finding nothing wrong with the operation of the lift on arrival.
6. Similarly with Lift No 2 there were 36 callouts over a five year period from 27 August 2003 to 22 July 2008, an average of one every seven weeks. Again with the one exception of 16 August 2005 these concerned faults other than levelling and in many instances no deficiency of operation was found upon inspection. On 16 August 2005 Lift No 2 was reported as "jumping and not level on M lvl": Ex D, p 484.
7. These records show that despite the inherent limitations of the technology of these lifts, giving rise to a propensity to level inaccurately, faults of that nature occurred extremely rarely. The lifts did not malfunction with respect to levelling at a frequency which indicated a lack of adequate maintenance to keep them working to the best standard reasonably attainable.
8. The lift technical experts in this proceeding concluded that the cause of Lift No 1 stopping out of level on 12 August 2008 was "the selector required adjustment as detailed in the ThyssenKrupp service report of 12 August 2008". That is a reference to the service technician's report referred to at [59]. Mr Thompson explained in evidence at T 487 - 488 that although an adjustment was made to the selector (and, the next day, to a levelling cam) that "doesn't necessarily mean that was the problem". He noted that the technician recorded having run the lift to all floors and having found no levelling problem but that, having "taken at face value that there was a problem with the lift", as per the customer complaint, "he's just done some maintenance".
9. The experts agreed that the maintenance schedule under the Comprehensive Maintenance Contract of 20 March 2003 appropriately called for a reasonable frequency of maintenance inspections. Namely, 24 per annum. They also agreed that the nature and extent of the checks required to be made under that contract on each such visit was reasonable. A maintenance inspection was carried out on 30 July 2008. The experts agreed that this would only have revealed a defect or maintenance requirement which would affect levelling if the lift had exhibited levelling malfunction at the time of the inspection.

Meeting of ISS personnel on 14 July 2008

1. Minutes of a meeting of 14 July 2008 (Ex 2.1, p 300) record that six persons, including Mr Ray, discussed on that day amongst other things "KDP Lift Issues". The initials KDP (sometimes AKDP) referred to the group of buildings on Loftus and Young Streets owned by Capital Investors, including 20 Loftus Street. An entry in these minutes against the topic "KDP Lift Issues" stated: "Meeting was conducted by [Peter Ray] with Eugenie Schneider, Peter Dent, [Tim Wickman] and Koni to discussion lift issues. Lift levelling issues is noted as a trip hazard. Eugenie has advised Peter Ray verbally to take any lift out of action as soon as it is found to be not levelling correctly. All AKDP lifts will be reviewed by a lift consultant shortly".
2. Contrary to this entry, the plaintiff gave evidence that she did not attend, either prior to or around 14 July 2008, a meeting with Peter Ray and others and a representative of "Koni". I infer that this is a misspelling of Kone, which was the service company for lifts in a building at 9 - 13 Young Street. The plaintiff was examined (at T 116 - 119) and cross examined (at T 175 - 180) about this possible meeting but it appears to me to have been of no significance. At most it shows that the lifts in another building with which the plaintiff was concerned in her employment had levelling problems. But those were different lifts from the ones in 20 Loftus Street and they were maintained by a different lift contractor. This evidence has no bearing upon (a) whether the defendants knew of or should have known of levelling faults in the 20 Loftus Street lifts or (b) what the plaintiff knew or should have expected regarding levelling of the subject lift.

Plaintiff v Kent Street

1. For the reasons given at [6] and [7], in the plaintiff's proceedings against Kent Street (No. 2010/411126) there must be judgment for the defendant.

Plaintiff v Capital Investors - what the duty of care required

1. The plaintiff's only pleaded case against Capital Investors is in negligence for breach of a duty of care alleged to have been owed by this defendant as the occupier of the lifts and lift foyers at 20 Loftus Street and as the effective controller of the lifts. I hold that, arising from those capacities, Capital Investors owed to lift passengers as a class, including the plaintiff, a duty to exercise reasonable care for their safety: Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479. For the purpose of determining whether a breach of that duty occurred, the risk of harm to be considered in the present case is the risk that a lift passenger might trip and thereby be injured upon exiting the lift if instead of levelling accurately it should stop in such a manner as to create a step or sill.
2. This identification of the relevant risk of harm is an essential pre-requisite to consideration of what if any action was required of the defendant to discharge its duty of care (the scope or content of the duty), leading to ascertainment of whether there was breach by reason of such action not having been taken. Gummow J said in Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 at [59]: "It is only through the correct identification of the risk that one can assess what a reasonable response to that risk would be."
3. In Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 Mason J (as his Honour then was) recognised implicitly that identification of the relevant risk is a pre-requisite to evaluating the factors (now enacted in s 5B Civil Liability Act 2002 (NSW)) which bear upon what precautions a defendant may be required to take in order to discharge his or her duty of care: "[13] A risk of injury which is quite unlikely to occur, such as that which happened in Bolton v. Stone [1951] UKHL 2; (1951) AC 850, may nevertheless be plainly foreseeable. Consequently, when we speak of a risk of injury as being 'foreseeable' we are not making any statement as to the probability or improbability of its occurrence, save that we are implicitly asserting that the risk is not one that is far-fetched or fanciful. Although it is true to say that in many cases the greater the degree of probability of the occurrence of the risk the more readily it will be perceived to be a risk, it certainly does not follow that a risk which is unlikely to occur is not foreseeable. [14] In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position."
4. The considerations relevant to finding what the duty of care required Capital Investors to do with respect to the identified risk in this case (that is, the risk of a lift passenger being injured due to tripping upon leaving an inaccurately levelled lift) are primarily as follows: 1. Whether Capital Investors "ought to have" foreseen the identified risk, which is equivalent to whether a reasonable person in the position of Capital Investors would have foreseen it: s 5B(1)(a) Civil Liability Act. 2. The degree of likelihood of the risk coming to pass and, in particular, whether the risk was "not insignificant": s 5B(1)(b). 3. What if any precautions a reasonable person in the position of Capital Investors would have taken: s 5A(1)(c. 4. The probability that a trip incident would occur and that harm would be sustained by a lift passenger if reasonable care should not be taken: s 5B(2)(a). 5. The likely seriousness of the harm that might be suffered by a plaintiff: s 5B(2)(b). 6. The burden - cost and degree of difficulty - of Capital Investors taking precautions to avoid the risk of an out of level incident occurring and causing a passenger to trip: s 5B(2)(c). 7. The social utility of Capital Investors operating the lift.
5. It is established that the considerations which I have paraphrased at [118] from both sub ss (1) and (2) of s 5B bear upon the scope, or content, or requirements for discharge, of a duty of care. Hence they bear upon whether a breach has occurred. This is so notwithstanding that the heading "Division 2 - Duty of Care" appears immediately before s 5B: Adeels Palace Pty Ltd v Moubarak [2009] HCA 48 (2009); 239 CLR 420 at [13]; Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72 at [93] - [95].
6. I approach the question of what precautions were reasonably required of Capital Investors in discharge of its duty on a prospective basis, looking forward from before the plaintiff's accident occurred, not looking back with hindsight derived from the facts that an out of level event did in fact occur and that the plaintiff did trip on 12 August 2008: Vairy v Wyong Shire Council [2005] HCA 62 per Gummow J at [60] and per Hayne J at [126] - [129]; Adeels Palace Pty Ltd v Moubarak at [40]; Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341 at [93].
7. On a prospective view Lift No 1 might stop out of level at any floor by less than plus or minus 7mm (as was found to be its operating condition by the serviceman who responded on 12 August 2008) or by a greater vertical distance. At some low point in the possible range the resulting step would not give rise to any danger to a lift passenger using reasonable care for his or her own safety (see Roads and Traffic Authority of NSW v Dederer at [45]) because the height differential would be cleared by the raising of the passenger's foot when walking out of the lift at a normal gait. At some higher point on the scale of levelling inaccuracy the differential between the height of the lift floor and that of the fixed floor would, again, create no danger to an alighting passenger if he or she exercised reasonable care because the difference in height would be readily apparent, as a matter of spatial perception, to a person standing upon the lift floor and looking out into the foyer (compare Neindorf v Junkovic).
8. The evidence does not establish that there is a particular range of height differential within which out-of-level stopping would create a danger to passengers even if they should exercise reasonable care for their own safety. Therefore I do not find that Capital Investors' duty of care required that it should do whatever was necessary to prevent the lift stopping out of level within any particular range of height difference.
9. A levelling discrepancy of 6mm is within the best tolerance that could be achieved for a passenger lift of the most modern engineering design. That was the opinion expressed in the Conclave Report of two expert lift technicians: Ex H para 8. I therefore do not consider that Capital Investors' duty of care required it to eliminate all levelling discrepancies of the 20 Loftus Street lifts. Such a conclusion would amount to a finding that the operators of all lift systems in all buildings in Sydney are in breach of their duties of care owed to lift passengers because, according to the evidence, levelling discrepancies simply cannot be eliminated altogether.
10. A consideration affecting what if any action Capital Investors should have taken with respect to the identified risk is that it could reasonably expect a lift passenger, exercising reasonable care for his or her own safety, to take account of the fact that a lift is a dynamic moving conveyance as opposed to a physical feature having a fixed position relative to its surrounds. A passenger would reasonably be expected to pay attention to whether the machine had functioned correctly and stopped accurately - which would require no more than glancing in the direction in which a passenger would move his or her feet - before walking across the join between the lift floor and the fixed floor.
11. This is the same consideration as applies to any moving conveyance. The operator of a bus may reasonably expect (for the purpose of considering what precautions it may be necessary to take in order to discharge a duty of care for the safety of alighting passengers) that each passenger will look to see how closely the bus has been brought to the kerb (for example) before descending the last step. A passenger on a train may similarly be expected to look down to see how closely the carriage is aligned with the platform before stepping off.
12. Addressing the seven matters listed in [118], I find as follows: 1. Capital Investors ought to have known that the identified risk existed. It is a risk inherent in operating a mechanical lift in a multi-storey building. In particular, it was an inherent risk of operating a lift with the older mechanism which this lift utilised. Capital Investors either knew this from the October 2006 Assessment or ought to have known it because enquiry should have been made by the company as to the levelling accuracy of its equipment. Such enquiry would readily have yielded an answer such as that given in the October 2006 Assessment. 2. The likelihood of an out-of-level stopping of Lift No 1 at any floor causing a passenger to trip could reasonably have been regarded by Capital Investors as very low. Ordinary care of alighting passengers for their own safety would in all but a very small proportion of cases result in the out-of-level condition having no consequence whatever. I cannot presently envisage any degree of level differential or any combination of circumstances which would give rise to any significant prospect that an out of level stop would cause a trip notwithstanding reasonable care on the part of the alighting passenger. 3. The question of what precautions a reasonable person should take is the question which I am presently endeavouring to answer having regard to the other factors identified in s 5B(1) and (2). 4. With respect to the probability of harm occurring if care should not be taken, I have stated my conclusion at (2) above that the probability of a trip was very low and the probability of harm resulting from a trip would be even lower because not every trip would cause harm. 5. The likely seriousness of harm flowing to any passenger if he or she should trip was not great. A trip at the exit from a lift into any of the lift foyers of 20 Loftus Street would not cause a passenger to plunge down a set of stairs or smash into a pane of glass, for example. Tripping on a sill created at the junction of the lift floor and the fixed floor could result in a stumble or a fall to a hard surface, with the lift passenger moving at a slow speed when this occurred. 6. The precaution which the plaintiff has asserted Capital Investors should have taken was to upgrade these lifts, at a cost of $475,000. Even that would not have ensured that the lifts would never stop out of level but would give them a greater consistency of accurate levelling to a tolerance of plus or minus 6mm. 7. The social utility of the operation of the lifts was considerable. This high rise building would not have been functional without them.
13. I conclude that Capital Investors' duty of care required it to select with reasonable care an appropriately qualified and experienced lift servicing company with thorough knowledge of the type of machinery installed at 20 Loftus Street. Reasonable care required that the service company selected should be engaged to carry out regular periodic inspection and maintenance at a frequency and in a degree of detail approved by the service company itself. It was also necessary that Capital Investors should institute both a system of verifying that this regular maintenance was performed and a system of monitoring the operation of the lifts and of calling out the service company in the event of any malfunction.
14. For the reasons given at 126, Capital Investors' duty of care did not require that the lift machinery be replaced. The lifts as installed in the 1970s "were of a standard design and layout that appears appropriate for this period of installation": expert report of Mr Thompson, Ex D p 763. There is no evidence to suggest that the lifts did not comply with the then applicable industry standards and legislative requirements. To the contrary, I infer that they did comply. For about 25 years prior to the accident, technology capable of providing greater accuracy of levelling and with greater consistency was available. But there is no evidence that any standard for the elevator industry was promulgated or any statute passed or regulation adopted which would have required these lifts to be upgraded, as a matter of accepted industry practice, to the newer technology. The fact that the lift machinery could have been replaced to achieve more reliable levelling and less likelihood of a trip hazard did not mean that the lifts were dangerous or defective. "Safety standards imposed by legislation or regulation recognise a need to balance safety with other factors, including cost, convenience, aesthetics and practicality": Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 at [23].
15. Further, the evidence in this case did not show that upgrading of lifts to the newer technology was the norm in Sydney high-rise buildings or that it was a practice that had been so widely adopted as to engender an expectation on the part of the general public that all lifts would operate to the standard of levelling achievable with the post-1983 technology. No deception of lift passengers in this building was created by the circumstance that it continued to be serviced by lifts with the degree of unreliability that has been referred to earlier in these reasons.
16. Given the low probability of an out-of-level step being of such a nature as to go unnoticed by a reasonably careful alighting passenger, replacement of the entire lift machinery at a capital cost of $475,000 would be vastly beyond the requirements of Capital Investors' duty to exercise reasonable care to protect a passenger such as the plaintiff against the identified risk.

Failure of plaintiff to prove breach of duty of care

1. The duty as described at [127] was discharged by the making of the Comprehensive Maintenance Contract and by the arrangements which were put in place for performance of that Contract to be overseen by ISS through Mr Ray. See further [142], below.
2. Even if the evidence had established that Capital Investors' duty of care was so stringent as to require that it should ensure that the 20 Loftus Street lifts would never stop out of level by some definable height difference or range of height difference, which would be dangerous to lift passengers notwithstanding their exercise of reasonable care for their own safety, the plaintiff could not show breach of duty on her evidence in this case. That is because she has not shown what height differential occurred in the out-of-level incident on 12 August 2008. The following cases illustrate how a plaintiff's failure to prove what he or she tripped upon may be fatal to a claim in negligence.
3. In Rallis v Pang [2003] NSWCA 202 the plaintiff fell and was injured when walking on a footpath. She sued the owner of the adjoining property upon the basis that part of the footpath had been broken up in consequence of building work carried out on that owner's property. Trucks and bobcats had crossed the footpath in connection with the building works. The plaintiff also sued the public authority responsible for the footpath upon the basis that it had consented to the work being carried out on the adjoining property owner's land and had deferred repairing the footpath pending completion of the building work.
4. When walking on this broken-up footpath the plaintiff had stepped on a patch of grass but had lost her balance and fallen, injuring herself, because her foot landed on the edge of a hard object under the grass. She was not able to say what was the nature of the hard object she stood on or what were its dimensions. There was no other evidence as to the size of the object or as to whether it was loose on the surface or buried in some way.
5. Hodgson JA, with whom Beazley JA agreed said this: "[3] I would not myself assert a concluded view that the first opponent had no relevant duty of care. I would express the basic reason why the claimant is not entitled to succeed as follows. In the circumstances referred to by Tobias JA, it was not unreasonable for either opponent to leave the footpath in a state falling short of that to be expected of a normal paved footpath. In this situation, in order to show that the claimant was caused to fall by a hazard which should have been attended to by one or both opponents, there was required at least a more accurate identification of what this hazard was, how big it was, and where it was. Otherwise, it could not be found either that one or both opponents were or should have been aware of the risk it constituted, or that reasonable care would have required that they deal with that risk."
6. Tobias JA held at [26]: "[26] As to the third basis, there was no evidence that the object upon which the claimant stepped and which caused her to lose her balance was debris from the first opponent's building work. Nor in my opinion, could it be inferred that it was. In this regard, the evidence did not identify with any precision where and how the accident occurred to enable the primary judge to determine what, if anything, could have been done to avoid it. His Honour expressed misgivings with respect to the imprecision of the evidence on these important issues and, in my opinion, he was clearly justified in so doing. In a case such as the present, in order to assert a duty of care to avoid the risk of injury that she sustained, the claimant was required to establish with a degree of precision not only the location but also the manner and cause of her fall. That precision was conspicuously absent in the present case." The case for the plaintiff in the present proceeding would fail upon the same basis even if Capital Investors' duty of care were more demanding than I have judged it to be (at [127).
7. In Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512, Gaudron, McHugh and Gummow JJ considered the case of Ghantous v Hawkesbury City Council (which was heard as a concurrent appeal). At [160] their Honours said: "[160] In dealing with questions of breach of duty, while there is to be taken into account as a 'variable factor' the results of 'inadvertence' and 'thoughtlessness', a proper starting point may be the proposition that the persons using the road will themselves take ordinary care."
8. At [163] their Honours said this: "[163] The formulation of the duty in terms which require that a road be safe not in all circumstances but for users exercising reasonable care for their own safety is even more important where, as in Ghantous, the plaintiff was a pedestrian. In general, such persons are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces. As Callinan J points out in his reasons in Ghantous, persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia (1982) 56 ALJR 912; 43 ALR 465), or the surrounding area (as in Buckle v Bayswater Road Board (1936) 57 CLR 259 at 266, where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a 'trap' or, as Jordan CJ put it, 'of a kind calling for some protection or warning'. In Romeo v Conservation Commission (NT) (1998) 192 CLR 431 at 455 [52], Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises 'is generally entitled to assume that most entrants will take reasonable care for their own safety'. Each case will, of course, turn on its own facts."
9. In the absence of evidence from which I could find on the balance of probabilities what was the dimension of the level discrepancy when the plaintiff alighted from the lift, it is impossible for me to find, applying the principles in Ghantous v Hawkesbury City Council, there arose a hazard or danger in relation to which the plaintiff exercised reasonable care for her own safety.
10. In Neindorf v Junkovic two adjoining slabs of a concrete driveway differed in level by 10 to 12mm at their junction on an expansion joint. A pedestrian walking on the driveway to attend a garage sale rolled her foot on the height discrepancy, stumbled and sustained a fracture. Hayne J said (citations omitted): "[94] In the present case, the relevant danger was presented by the uneven surface of the appellant's driveway. Neither the fact that the driveway paving was uneven nor the degree of unevenness (a difference of about 12mm between two sections of the concrete) is or was at all uncommon in the driveways of suburban housing. Would it have been reasonable for the occupier to eliminate or reduce the risk of tripping or stumbling on or over the unevenness, or to warn all entrants to watch their step? [95] It may be that some means of reducing the danger could readily have been found. It was suggested that to paint a stripe along the lip of the concrete or to cover it over with a piece of carpet would have done so. Perhaps the danger could even have been eliminated by displaying the goods which were for sale in some different way. But would it have been reasonable for an occupier embarking upon a garage sale to take any of these measures? [96] When that question is examined from the proper perspective, without knowing what in fact happened to the respondent, the answer is no. Any suburban house presents many features that can lead to injury. In that sense any suburban house presents many dangers. The appellant, as occupier, was not required to reduce or eliminate the danger presented by an unevenness in the driveway that was no larger than, and no different from, unevenness found in any but the most recently installed suburban concrete driveway. Nor was the occupier required to give some warning to entrants by telling them: 'Be careful, the driveway upon which you are to walk is no different from most other driveways.' The fact that the appellant had invited the public to attend a garage sale, and displayed the goods for sale as she did, requires no different conclusion."
11. Just as some unevenness may be expected to be found in "any but the most recently installed suburban concrete driveway", some potential for unevenness in the levelling of a lift, a moving conveyance, must be expected by any passenger. It is simply inherent in the nature of such machinery that it may not level precisely with the fixed floor at which it arrives. Without evidence upon which to make a finding as to the dimension of the step over which the plaintiff tripped, I cannot find that it was beyond the range of what might reasonably be expected and negotiated by a lift passenger taking reasonable care.

Plaintiff v Capital Investors - particulars of negligence

1. The particulars of negligence given by the plaintiff in her amended statement of claim (under para 9) may be grouped as follows. Items (a) and (b) allege a failure to maintain and repair Lift No 1 and to carry out "remedial and other works so as to ensure the lifts were maintained in proper working order". These particulars are not made out. The evidence shows that the lifts were maintained in good working order, to the standard of operation of which they were capable. Capital Investors engaged a competent service entity under the Comprehensive Maintenance Contract. It provided for an appropriate maintenance regime, according to the expert evidence, and that regime was executed. The history of very few out-of-level incidents in either Lift No 1 or Lift No 2 over the five years preceding the accident shows that the lifts were kept operating to a standard which exceeded the expectations of the experts, having regard to the age and technical specifications of the machinery.
2. Particulars (d), (e) and (f) are as follows: "(d) exposed the plaintiff to a risk of injury of which it knew or ought to have known. (e) failed to observe that the plaintiff was in a position of peril in the circumstances. (f) exposed the plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care." These are not particulars of negligence or breach of duty at all - they are unhelpful generalities. Particular (k) ("the plaintiff relies on the doctrine of res ipsa loquitur") is in the same position. The facts of this case do not of themselves bespeak a failure on the part of Capital Investors to exercise reasonable care for the safety of lift passengers with respect to the risk of harm which I have identified.
3. Particulars (c), (g), (h), (i) and (j) all assert, in various and repetitive ways, that Capital Investors' breach of duty lay in failing "to heed advice of the condition of the lifts" (presumably referring to the October 2006 Assessment) and failing to "upgrade the lifts". This group of particulars constituted the case which the plaintiff principally ran at trial. I have found that Capital Investors' duty of care for the safety of lift passengers did not require that the entire system be replaced or "upgraded".
4. The plaintiff did not plead or argue a case that reasonable care required the placement of warning signs concerning the risk of erratic levelling of Lift No 1. If it had been raised I would have regarded the possibility of the lift stopping to some degree out of level as so obvious and the ability of an ordinary passenger to detect it as such a simple matter (for reasons given at [121] - [125]), that a warning sign would have been quite superfluous and unnecessary: Vairy v Wyong Shire Council at [7] and [40].

No proof that the alleged breach of duty caused the trip

1. The plaintiff's case against Capital Investors also fails on the issue of causation of harm because of her failure to prove what was the height of the step or sill upon which she tripped. Even if Capital Investors' duty of care required that it should have upgraded the lift machinery to the modern standard, as that would only achieve levelling to within a tolerance of plus or minus 6mm I would have to be satisfied that the sill over which the plaintiff tripped was greater than that in order to find that the failure to replace the machinery was the cause of her accident. For reasons given in [53] - [58] I do not find on the balance of probabilities that the step was any more than 6mm.
2. The plaintiff's claim against Capital Investors must be dismissed with costs.

Plaintiff v ThyssenKrupp

1. The plaintiff's claim against ThyssenKrupp was also pleaded solely in negligence. I accept that ThyssenKrupp owed the plaintiff a duty to exercise reasonable care in the performance of its work under the Comprehensive Maintenance Contract, to prevent malfunction of the lift which might cause injury to the plaintiff. The identified risk for the purpose of evaluating what was required of ThyssenKrupp to discharge this duty of care is of course the same as in the case against Capital Investors (see [115]). The scope of ThyssenKrupp's duty is necessarily different from that of Capital Investors. As ThyssenKrupp did not own the building or have any management control over it the plaintiff could not sensibly contend that ThyssenKrupp's duty of care required that it should upgrade the lift system.
2. Further, because ThyssenKrupp's relationship to the plaintiff (for the purposes of the law of negligence) arose only through it having assumed contractual obligations to Capital Investors under the Comprehensive Maintenance Contract, the terms of that contract established the nature of the activity upon which ThyssenKrupp entered with respect to these lifts and constitute a strong consideration in determining the content of ThyssenKrupp's duty: Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74 per Windeyer J at [11]; WB Jones Staircase and Handrail Pty Ltd v Richardson [2014] NSWCA 127 at [54].
3. Upon this approach, ThyssenKrupp's duty of care to the plaintiff required, with respect to the identified risk, that it exercise reasonable care to carry out the maintenance tasks which it contracted to perform and to warn Capital Investors of any noted deficiencies in the working of the lifts which might affect the likelihood of them stopping out of level and causing a trip accident. ThyssenKrupp discharged its duty of care in both of these respects. The conclave report of the lift technical experts and the report of Mr Thompson dated 19 April 2012 (Ex 2.1, pp 760 - 775) establish that ThyssenKrupp's maintenance work was executed with reasonable care and skill. Further, it provided the October 2006 Assessment which informed Capital Investors' agent (for the purposes of the Comprehensive Maintenance Contract) of the inability to ensure that these lifts would level within plus or minus 10mm.
4. The plaintiff's particulars of negligence alleged against ThyssenKrupp, as set out in the amended statement of claim, included at items (a) and (b) failure to inspect, maintain and repair the lifts and to keep them in proper working order. These particulars are unsubstantiated by the evidence. Particulars (d), (e) and (f) are in the same terms as Items (d), (e) and (f) alleged against Capital Investors (see [143] above). These generalities are as meaningless for the purpose of particularising breach of ThyssenKrupp's duty of care as they are in relation to Capital Investors.
5. Items (c) and (h) allege failures by ThyssenKrupp "to heed advice of the condition of the lifts, being that they needed upgrading" and failure "to properly warn (sic) the owner of the lifts of the need to upgrade them". There was no failure to warn because the October 2006 Assessment was delivered. There was no question of ThyssenKrupp heeding advice. It was the giver of advice with respect to upgrading. Any action in response to that advice would only be within the power of Capital Investors.
6. Lastly at Item (g) the plaintiff relies upon the doctrine of res ipsa loquitur against ThyssenKrupp. The facts most certainly do not speak for themselves in establishing negligence of this defendant.
7. In final submissions the plaintiff effectively abandoned its claim against ThyssenKrupp and rightly so. The claim must be dismissed.

Plaintiff v ISS

1. The plaintiff's claim against ISS is pleaded only in negligence, relying upon an allegation that at all material times ISS "was responsible for the day-to-day management of the premises located at 20 Loftus Street Sydney" as the foundation of a common law duty of care. In breach of this duty it is alleged that ISS "failed to ensure that the lifts in the premises were properly maintained, complied with relevant standards and were free of defects". On its face this allegation of breach fails because, whether through ISS ensuring this outcome or otherwise, the fact is that ThyssenKrupp did properly maintain the lifts. There is no evidence that the lifts did not comply with "relevant standards". They were "free of defects" in the sense that they performed within the capabilities of equipment of the relevant type.
2. Particulars (a) and (b) of the negligence alleged by the plaintiff against ISS are that the company failed to inspect, maintain and repair Lift No 1 and failed to carry out remedial and other works so as to ensure that the lifts were maintained in proper working order. The scope of ISS's obligations, in discharge of its duty of care, is necessarily limited by the terms of the contract by which it undertook its role with respect to the lifts: see authorities cited at [149]. ISS was never required to inspect, maintain or repair the lifts or to carry out remedial or other works. It was required to monitor the performance by ThyssenKrupp of that company's maintenance obligations under the Comprehensive Maintenance Contract. ThyssenKrupp did perform its contractual duties: see [150]. There was no default on the part of ISS in this respect.
3. Paragraph (c) of the particulars alleges failure of ISS "to heed advice of the condition of the lifts, being that they needed upgrading". Not being the owner of the building, it was not for ISS to "heed" this advice but to pass it on. The evidence does not permit me to find on the balance of probabilities that it failed to do so. As it was not within ISS's power to "heed" the terms of the October 2006 Assessment in the sense of carrying out the upgrade which was there recommended, it could not be held against ISS that it had breached its duty of care by failing to do something which it had no lawful authority or power to do.
4. Paragraphs (d), (e) and (f) of the particulars alleged against ISS are mere generalities about ISS's exposure of the plaintiff to risk of injury and failure to observe that the plaintiff was "in a position of peril". Formulaic allegations in these general terms do not advance the particularisation of the plaintiff's case and they cannot be usefully dealt with in the process of trying to identify whether any breach of ISS's duty of care occurred.
5. Particular (g) invokes the doctrine of res ipsa loquitur, which is no more applicable to the position of ISS in this case than it is to the positions, respectively, of Capital Investors and of ThyssenKrupp.
6. Paragraphs (h), (i) and (j) allege failures to take out of operation lifts which were not levelling correctly and to have known faults corrected by maintenance contractors, pursuant to a system of checking the operation of the lifts on a daily basis. In fact ISS did monitor the operation of these lifts on a daily basis through the observations of Mr Ray who used the lifts to get to and from his office on the first floor. The evidence shows that there was no known fault with the lifts on 12 August 2008 prior to the plaintiff's accident which could have or should have prompted ISS (through Mr Ray) to take Lift No 1 out of operation or to call a maintenance contractor to attend to it. These particulars are not made out.
7. Particulars (k) and (l) allege that ISS failed to warn the plaintiff and Capital Investors that the lifts were not operating correctly and similarly failed to warn "the lifts owners and operators". There was no indication of incorrect operation in Lift No 1 prior to the plaintiff's trip accident. There was nothing of which Mr Ray or anyone else within ISS could have or should have become aware or of which such a person could have or should have warned the plaintiff or Capital Investors.
8. Particulars (m) and (n) suffer from the same characteristic as referred to in relation to items (d), (e) and (f): generalities which do not particularise the plaintiff's case at all. Particular (r) is, again, of this type.
9. Particulars (o), (p) and (q) allege a failure on the part of ISS to implement an adequate risk management system in respect of the lifts at 20 Loftus Street and a failure to identify the defect or hazard which caused the plaintiff's accident. These particulars are rebutted by the evidence. There was an adequate risk management system in the regular frequent attendance of ThyssenKrupp's service personnel. The failure to identify any defect or hazard prior to the plaintiff tripping occurred because, so far as the evidence shows, there was no pre-existing defect or hazard.

First Cross-Claim: Capital Investors v ISS

1. By its First Cross-Claim Capital Investors claims against ISS that the latter owed a duty of care to the plaintiff "to ensure that it maintained the lifts in the premises and that the plaintiff was not exposed to any risks of injury"; that ISS negligently breached this duty and that, if the plaintiff is entitled to damages, then Capital Investors is entitled to apportionment against and or a complete indemnity from ISS. I reject this claim because ISS has not breached any duty of care owed to the plaintiff.
2. Secondly, Capital Investors alleges that ISS breached the Soft Services Agreement, in various respects particularised in para 13 of the First Cross-Claim, and has thereby become liable to Capital Investors in contract for damages to be measured in the amount of whatever liability Capital Investors may be found to have to the plaintiff. I am not satisfied that ISS breached the Soft Services Agreement in any of the respects particularised. Contrary to the way these particulars are formulated, the contract did not require ISS "to ensure… the safety and proper operation of the lifts" (cross-claimant's particular 13(a)(i)). It did require that ISS ensure defects or issues with the lifts were notified to ThyssenKrupp and rectified, that the building was monitored for the purpose of addressing recurring problems and that work required to be carried out on the lifts was appropriately undertaken (particulars 13(a)(i) - (vi)). There is no evidence that ISS did not fulfil its obligations in any of these respects.
3. Capital Investors asserts that ISS failed to inform it of a circumstance which adversely affected the safe working of the lifts or was likely to do so (particular 13(b)). This has not been proved. To the extent that limitations upon the levelling accuracy of the lift would affect safe working, I am not satisfied on the balance of probabilities that ISS failed to pass on the October 2006 Assessment.
4. Capital Investors asserts that ISS failed to ensure that requirements of Occupation, Health and Safety legislation would be met in relation to the lifts (particular (c)). There has been no citation to the Court of relevant provisions of legislation nor evidence tendered to show their breach. I dismiss this particular.
5. By particular 13(d) Capital Investors alleges that ISS failed to ensure that ThyssenKrupp attended "to all known issues and properly rectified any faults or defects with the lifts" and by particular 13(e) that it failed to undertake regular "walk-through inspections". These alleged breaches are contradicted by the evidence. Mr Ray of ISS "walked through" the building every day. There are ample records of ThyssenKrupp to show that "all known issues" were attended to and faults rectified.
6. Capital Investors has also particularised against ISS, as breaches of the Soft Services Agreement, all the particulars of negligence which the plaintiff asserted against ISS (particular (g)). I have rejected all of those particulars as between the plaintiff and ISS (see [156] - [163]) and I reject them as between Capital Investors and ISS.
7. The First Cross-Claim must be dismissed.

Second Cross-Claim: Capital Investors v ThyssenKrupp

1. Capital Investors' Second Cross-Claim against ThyssenKrupp follows the same pattern as its cross-claim against ISS. The claim for contribution or indemnity pursuant to s 5 Law Reform (Miscellaneous Provisions) Act 1946 (NSW), upon the basis that ThyssenKrupp as a tortfeasor liable to the plaintiff in respect of the same damage as that for which Capital Investors is alleged to be liable, is rejected because I have found that ThyssenKrupp did not negligently breach a duty owed by it to the plaintiff as a lift passenger.
2. I also reject Capital Investors' claim in contract against ThyssenKrupp. The evidence does not substantiate that ThyssenKrupp failed to perform its obligations under the Comprehensive Maintenance Contract in any of the respects alleged in particulars given under paragraph 14 of the Second Cross-Claim.

Third and Seventh Cross-Claims: ISS v Capital Investors and ThyssenKrupp

1. The first aspect of ISS's Third Cross-Claim against Capital Investors is a claim for indemnity, pursuant to clause 41 of the Soft Services Agreement, against any liability that ISS may incur to the plaintiff. As I have found that ISS has not incurred any liability to the plaintiff the claim for indemnity does not arise.
2. Secondly, ISS seeks contribution or indemnity from Capital Investors upon the basis that, if I should find ISS liable as a tortfeasor to the plaintiff, then Capital Investors is also liable as a tortfeasor in respect of the same damage. Because I have found that neither party is a tortfeasor liable in respect of any damage to the plaintiff, this contribution or indemnity claim does not arise. In the Seventh Cross-Claim ISS seeks contribution on indemnity from ThyssenKrupp as a tortfeasor liable to the plaintiff in respect of the same damage as is claimed by the plaintiff against ISS. Again, neither party to the cross-claim is a tortfeasor liable to the plaintiff and there is no occasion for ordering contribution or indemnity.
3. Accordingly, I will dismiss the Third and Seventh Cross-Claims.

Fourth and fifth Cross-Claims: ThyssenKrupp v Capital Investors and ISS

1. By the Fourth Cross-Claim, Thyssen Krupp claims contribution or indemnity against Capital Investors pursuant to s 4 Law Reform (Miscellaneous Provisions) Act. As I find that neither of these parties is a tortfeasor liable in respect of damage to the plaintiff the Fourth Cross-Claim will be dismissed.
2. The Fifth Cross-Claim, filed by ThyssenKrupp, is for contribution or indemnity against ISS, on the basis that it is a joint tortfeasor together with ThyssenKrupp. The premises of this cross-claim have not arisen and it will be dismissed.

Sixth Cross-Claim: Capital Investors v Office & Industrial

1. In the Sixth Cross-Claim Capital Investors alleges that if the plaintiff's allegations are sustained then Office & Industrial breached its duty of care owed to her as her employer and is liable in negligence for the same damage as that for which Capital Investors is liable. Contribution or indemnity is sought pursuant to the Law Reform (Miscellaneous Provisions) Act. I will dismiss this cross-claim as the premise of it - a liability in Capital Investors, for which contribution or indemnity might be ordered - has not arisen.
2. Further, negligence of Office & Industrial in the particulars alleged in paragraph 11 of the Sixth Cross-Claim has not been proved. Item (a) of those particulars repeats against Office & Industrial the plaintiff's allegations in paragraph 9 of her amended statement of claim. So far as this is intended to pick up the particulars under paragraph 9 it is unworkable because those particulars are specific to Capital Investors, ThyssenKrupp and ISS and are referable to the activities and relationships of these entities. But so far as the plaintiff's allegations in paragraph 9 may be adapted to allegations against Office & Industrial, the findings that I have made with respect to all of those particulars (in dealing, above, with the plaintiff's claim against each of the defendants) are applicable to dispose of the contention on this cross-claim that Office & Industrial was negligent in any of the respects mentioned.
3. Items (b) and (c) of Capital Investors particulars of negligence alleged against Office & Industrial assert failure under the Property Management Contract to have the lifts at 20 Loftus Street inspected and maintained and to undertake risk assessments in respect of them. This allegation is unsustainable in the face of the Comprehensive Maintenance Contract and the evidence of its implementation.
4. Items (d) and (e) of the particulars alleged by Capital Investors against Office & Industrial are that the latter failed to ensure that "appropriate requests for upgrade" were "escalated" to Capital Investors and failed "to take heed of the hazard… of which [Office & Industrial] was aware". I have found that the recommendation of ThyssenKrupp in the October 2006 Assessment came into the hands of Resolve FM which, at the relevant time, was Capital Investors' agent with respect to oversight of maintenance of the lifts. The evidence does not substantiate that the Assessment was ever in the hands of Office & Industrial in such a way as to make "escalation" of it a responsibility of that company. Even if there was some legal obligation, either contractual or pursuant to a duty of care, upon Office & Industrial to "escalate" the assessment, its failure to do so was not causative of any damage in circumstances where Capital Investors' agent, Resolve FM, obtained the Assessment in any event.
5. Contrary to Item (e) of the particulars, I find there is no evidence to establish that Office & Industrial was aware, at any relevant time, of a hazard to lift passengers constituted by any tendency of the lifts in 20 Loftus Street to stop out-of-level.
6. Item (f) of the particulars against Office & Industrial alleges that it failed to train and instruct the plaintiff in her work. The particular does not descend to a description of what aspect of her work required more training than she in fact received or how any such deficiency of training was to any extent causative of the accident and the plaintiff's subsequent injury. I cannot identify any evidence which substantiates a failure to train in any respect relevant to the issues in the case.

Office & Industrial's claim against the three defendants - No. 2014/308507

1. In support of its recovery action under s 151Z(1)(d) Workers Compensation Act 1987 (NSW) (see [14] above), Office & Industrial "repeats and relies upon" the plaintiff's allegations in her statement of claim regarding negligence of Capital Investors, ThyssenKrupp and ISS. As I find that those allegations by the plaintiff of negligence against the three defendants fail, Office & Industrial's recovery action must be dismissed.

Plaintiff's case on causation of injury by the tripping incident

1. As I have heard evidence and argument on causation of injury I will make findings on that subject although my conclusions on breach of duty and causation of the plaintiff's trip are sufficient to dispose of the amended statement of claim and all cross-claims.
2. In broad terms the plaintiff contends that the tripping incident on 12 August 2008 aggravated and accelerated pre-existing degeneration of discs in her cervical spine leading to severe pain in her neck and radiating into her arms, with numbness and other neurological symptoms particularly in the right arm. In her evidentiary statement, the plaintiff made these claims regarding the contrast between her pre- and post-accident medical condition: "[11] My employment was continuous until I took on a new position with AMP Capital Investors at 50 Bridge Street, Sydney. I had had to spend about four weeks away from work before I left Savills because of a heart condition, namely supraventricular tachycardia. This condition was treated at St Vincent's Hospital by way of angiogram and my condition is now completely stable. I have had no further symptoms. … [14] Before the accident I was an active person in good health. It was my invariable routine to walk every morning for about 1 hour. Whilst I did not play regular sports I used to ski, which I ceased in about 1997. In the early part of the 1990's I developed a condition in my neck which was controlled. I had in this respect taken some advice from Dr Garrick. I undertook no surgery. The condition was appropriately managed by taking analgesia and I was only troubled by the condition, on average, about twice a year. [15] Apart from the heart condition which I had earlier mentioned and the occasional neck discomfort, I had no other relevant health issues. … [21] Apart from physical problems associated with the accident, I have developed what I imagine to be a significant anxiety condition. I have had to deal with a lot of stress which in turn has affected my relationship with my partner. I have become depressed and am taken to periods of weeping and sleeplessness. [22] I had complained to my general practitioner, Dr Moore, about these mental health issues and Dr Moore referred me to Dr Simon Turmanis at Neutral Bay. I continue to see him. At the moment I am taking Lexipro. [23] In respect of my physiological health, I have pain and discomfort around my neck and shoulders. Pain radiates down my right arm to my hand and fingers. I have been under the care of Dr Ian Farey, a spinal surgeon. Dr Farey performed a cervical spinal fusion on 27 March 2012 in respect of the C5 to C7 disc spaces. I have an appointment to see Dr Farey on 09 March 2015 at which time further surgery will be discussed. As I understand it, Dr Farey may recommend a further fusion to the level above at C4. It is my present intention to accept Dr Farey's recommendation. [24] I have had physiotherapy in the past. I undertook physiotherapy between August 2012 and October 2012. On the advice of Dr Farey I have ceased the physiotherapy because it has produced too much discomfort. The physiotherapist I saw was Dr Helen Clare at Crows Nest."
3. In evidence in chief the plaintiff said that since the accident she has constant pain across her shoulders which she had not previously suffered "to this level" (T 119). She identified the only prior pain she had experienced "in that area" as "some bad neck pain" in 2000, about which she had consulted Dr Garrick, neurosurgeon. The plaintiff said that after the 2000 episode "I was fine" up to the date of the accident (T 119 - 120).
4. The plaintiff said that after the accident on 12 August 2008 neck and arm pain progressed until, by 2012, it was "unbearable and I couldn't lift my right arm" (T 121.6). Consequently, she had surgery performed by Dr Farey, orthopaedic surgeon, on 28 March 2012 to fuse the C5/6 and C6/7 vertebrae.

Medical records of the plaintiff's pre-accident neck and arm pain

1. When pre-accident medical records were tendered and when the plaintiff was cross-examined on them a picture emerged regarding her pre-accident medical history which was entirely at odds with her claim that up to 12 August 2008 she was "an active person in good health" and that her neck condition was "controlled". The dates and the substance of the principal events in this pre-accident medical history are summarised in the following paragraphs. In all cases, emphasis is added and square brackets enclose definitions and explanations obtained from elsewhere in the evidence.
2. 8 May 1997: Dr Sheehy, neurosurgeon, was consulted by the plaintiff on this date concerning "attacks that have occurred over the last couple of years with painful restriction of movement of her neck. This pain can be associated with a pain radiating into the occipital plate region and also a pain radiating along the thoracic spine. Following this recent attack there has been some right arm pain but no forearm or hand involvement. The arm symptoms have settled".
3. Dr Sheehy recorded the following observations upon examination: "Cervical movements were all restricted especially lateral rotation and lateral tilting. …All movements of the cervical spine caused a pain centred on the right side of the mid-cervical vertebrae. I have found no abnormality of tone, bulk or power in the limbs and the reflexes were quite normal. She attended with a plain x-ray of the cervical spine performed in March 1995 which demonstrated loss of the cervical lordosis [ie the naturally occurring concave forward curvature of the cervical spine, loss of which is consistent with disc degeneration]".
4. 7 July 2000: report of Dr R Garrick, neurologist, following the plaintiff's consultation with him on 5 July 2000. She gave a history of a recent "relapse of intense neck pain associated with severe brachalgia [scil. brachialgia - arm pain] and lower limb sensory change. She has a history of about six years of recurrent similar episodes which have occurred without obvious significant neck trauma. She recalls a minor skiing accident in the past but there was no definite neck injury or subsequent pain. Her first attack of symptoms occurred when she was working in a bar and she thought neck discomfort may have resulted from lifting. Other episodes have occurred spontaneously and always with significant pain and movement restriction of the neck with attempted flexion producing occipital and lateralised neck pain, brachalgia mainly in the right hand but sometimes in the left, and there is frequently distal paraesthesia involving both feet. The current episode occurred without provocation and is the most severe to date. … Each episode has subsided spontaneously but she feels that she is a little worse after each episode. Between episodes she is reasonably comfortable but in the last few months there has been a tendency to waken at night with a feeling of numbness in the arms, generally on the right side but on the last night this was on the left".
5. The results of Dr Garrick's examination of the plaintiff on 5 July 2000 and the results of Magnetic Resonance Imaging ("MRI") were recorded as follows: "Examination revealed significant restriction of cervical rotation and flexion with predominantly right sided posterior cervical tenderness… Her magnetic scans of 5/7/2000 show a moderate disc protrusion at C5/6 extending to the right and indenting the thecal sac. There is a minor kyphosis [reversal of the natural curvature of the cervical spine, to an outward curve as in a hunched back] due to muscle spasm at this level. There is no alteration in [spinal] cord signal. Eugenie undoubtedly has a significant disc lesion producing recurrent lesion episodes of discomfort. There is no clinical evidence of myelopathy [neurologic deficit related to the spinal cord, for example caused by arthritic changes resulting in narrowing of the spinal canal or stenosis] and the radicular signs [ie radiating from the nerve roots at the cervical spine into the arm] are of irritation rather than compression at present. There is a reasonable chance that this current relapse will settle with conservative treatment with a few days of steroid and analgesia. However, unless Eugenie achieves an adequate level of pain relief quickly the degree of compromise on MR scan and the recurrent nature of her episodes would suggest that surgical intervention by anterior approach would be appropriate".
6. The MRI report of 5 July 2000 to which Dr Garrick referred contained this conclusion "There is a moderate disc protrusion at the C5/6 level to the right of mid line indenting the thecal sac [ie the membrane containing fluid surrounding the spinal cord] with mild flattening of the cord which is kinked over this region. This has resulted in a minor kyphosis presumably due to a spasm over this region. The intra-substance of the cord signal is normal".
7. 31 August 2001: contrary to the plaintiff's claim in her evidence in chief (namely, that from 2000 up to the date of her accident she was "fine" with respect to her neck), she consulted Dr Garrick on 31 August 2001 concerning "intermittent paraesthesia [abnormal tingling sensation] in the arms and legs" with "shooting pains down the left arm to the thumb" and her left arm feeling "strange and vaguely weak". Dr Garrick found: "Eugenie's symptoms are of myalgic [ie muscle] character and probably do not represent myelopathy or specific neuromuscular disturbance. She does have significant cervical spondylosis [ie degeneration of intervertebral discs, producing narrowing of the space occupied by the discs] with persistent intermittent discomfort likely to be provoking a tension myalgic reaction."
8. A further scan at this time was reported upon by Dr Garrick on 24 September 2001. He said that it showed "essentially the same as previous studies with C5/6 disc more to the right but without encroachment on the spinal cord."
9. On 10 July 2003 and again on 22 April 2004 the plaintiff consulted Dr Garrick regarding sensory changes in her lower limbs, for which the doctor could find no causative structural change. The roots of the nerves of the lower limbs emerge from the lumbar spine. Therefore lower limb nerve impingement could not have been associated with the degenerative changes to the plaintiff's cervical spine.
10. 17 March 2008: in response to a further referral of the plaintiff, Dr Garrick recorded her history of past and current complaints as follows: "…a persistent neuropathic sensory disturbance which originally resulted from a right C5 nerve root irritation in mid-2000. At that time she had prominent brachalgia (sic) with minor focal radicular features. Scans did identify a C5/6 disc protrusion extending to encroach on the C6 nerve root. Subsequent scans showed slight resolution that persist in structural change. Over the last eight years Eugenie has tolerated a low level fibromyalgic [ie relating to pain in the fibrous tissue components of muscles] muscle and ligamentous discomfort pattern associated with a feeling of slight numbness in the right neck and arm generally at night. She has managed this with maintenance of physical fitness, occasional Voltaren and some past physiotherapy. There have been no new injuries and general health has been satisfactory. She has some life stresses which she copes with. There has been a recent increase in her discomfort and sensory symptoms over the last couple of months and greater discomfort in the last two weeks with sleep more disturbed than usual. She is aware of right-sided anterior and cervical low neck pain and some movement restriction. There has been an altered sensation over the back and extending to the right side of the face and brachalgia (sic) with numbness extending down the right arm particularly to the thumb. … I presume that there has been some recent further neural irritation. A progress magnetic scan is warranted to exclude any new structural pathology but it is highly likely that Eugenie's symptoms will settle with conservative management. Gentle physiotherapy should be helpful… ."
11. The parts of the above passages which I have highlighted satisfy me that from at least 1995 the plaintiff suffered recurrent episodic pain and altered sensation in her arms, particularly the right. She also suffered pain in her neck which was at times disabling. Both the neck pain and the arm symptoms became progressively worse with each episode. This contemporaneous evidence directly contradicts her assertions as quoted at [186] and [187].

Plaintiff's consultations with Cremorne Medical Practice from November 2005

1. The plaintiff's referrals to doctors Sheehy and Garrick in the period May 1997 to April 2004 had been from Drs Hardy and Berecry in Double Bay. From 10 November 2005 the plaintiff had commenced to see Dr Tony Andrew, General Practitioner, at the Cremorne Medical Practice. She continued to see Dr Andrew and Drs Liu, Tan and Moore in this practice up until at least August 2014.
2. Prior to the accident on 12 August 2008 the plaintiff consulted the doctors of this practice on average every four to six weeks with a range of health issues including intermittent fainting and dizziness from early 2006; symptoms of depression and anxiety from mid-2006 through to October 2013 (for which anti-depressant medication was prescribed); crushing chest pains and abdominal pain from August 2006 through to 2011; tachycardia in early 2007 (for which a catheter ablation was performed by a cardiologist, Dr Kuchar, on 26 April 2007); aching and painful hips from November 2007 and a pregnancy which was terminated on 21 August 2010.
3. On 16 May 2007 the plaintiff informed Dr Andrew that "for years she has developed numbness on the left side of her body when she is in bed at night". She complained of "aching all over especially the upper body and back of the neck".
4. On 1 March 2008 Dr Liu recorded this history from the plaintiff: "Long term cervical neck problems. Has seen Dr Garrick over the years and meant to have repeat MRI three years ago. Longstanding numbness and tingling in lower body, arms, legs. Now some new pains around C2 C3 dermatomes on the right side."
5. In response to this history and the plaintiff's then current complaints Dr Liu referred her to Dr Garrick who reported on 17 March 2008 as summarised at [198].
6. The consultation records of the Cremorne Medical Practice, which appear to have been maintained meticulously and comprehensively, do not indicate any consultation of the plaintiff with a general practitioner of that practice at the time of or shortly after the accident of 12 August 2008.
7. Even when the plaintiff saw Dr Andrew next after the accident, more than a year later on 11 September 2009, she made no mention of it to him. Her attendance was in relation to a cough. In more than 20 further consultations at this practice, from 11 September 2009 to 22 June 2011, the plaintiff did not inform any general practitioner of the accident or of any neck or arm pain said to have been caused by it.

First post-accident examinations: Avenue Road Medical and Dr Garrick

1. From 3 June 2008 the plaintiff had commenced to consult Dr Ranasinghe-Markus at the Avenue Road Medical Practice as her general practitioner. She had consulted this doctor on eight occasions between 3 June 2008 and the date of the accident: for gynaecological symptoms, for a breast examination, to obtain a certificate of unfitness for work due to sore throat and fever and for migraine. In these consultations, at the commencement of her professional relationship with Dr Ranasinghe-Markus, the plaintiff made no reference to her then 13 year history of cervical disc degenerative disease and neck and radicular arm pain.
2. On 26 August 2008 the plaintiff consulted Dr Ranasinghe-Markus about neck pain she had suffered since the accident of 12 August 2008. She gave a history in these terms: "Reason for visit: Fall has had neck problems since 1999, and been under Ray Garrick at [St Vincent's Hospital]. Has had steroid treatment in the past. Last saw Ray three months ago, and was told to get a repeat MRI, but didn't do it. Fell out of the lift at work, which was not level when it stopped. Had Voltaren at home, from another doctor, and took it on and off. In the last two days the pain has been severe since the Voltaren ran out".
3. Dr Ranasinghe-Markus diagnosed cervical disc herniation and referred the plaintiff to Dr Garrick. He reported on 25 September 2008, as follows: "[The plaintiff] has a long history of neck pain and movement restrictions. She originally saw John Sheehy 11 years ago after a history of at least three years of neck pain. Her father is an eminent senior spinal specialist physiotherapist so she has had careful conservative management in the past. There have been a number of episodes of significant neck pain with stiffness and several episodes of brachialgia with paresthesia (sic) extending to the hands. Her serial imaging over the last 10 years has shown moderate C5/6 disc degeneration with a slight degenerative slip. The current films show changes at C6/7 more prominently than the previous studies of 200 (scil. 2000). On her last examination most of her symptoms were of fibromyalgic character but I thought that her history warranted regular MR scan reviews. While the current report [ie an MRI report of 19 September 2008] is accurate, it needs to be considered in comparison with her older films and really there is not much change. Hopefully, we can continue with conservative management for a long time yet".
4. On the same date Dr Garrick wrote directly to the plaintiff regarding the MRI scan of 19 September 2008: "I think that your MR scans of 19.9.08 are not particularly different from the scans of eight years ago. The C5/6 disc is somewhat worn - 'the mild kinking of the spinal cord' reported is not of significance since there is plenty of spinal fluid around the cord at all levels. The current scans show some minor changes at C6/7 disc on the right side. This may well be the source of your previous sensory symptoms - the changes are quite mild on the scan and it is import (sic) to try to directly compare the old films with the new. If you still have the old films I would be grateful for the chance to directly compare them".
5. Through late 2008 and continuing until October 2013 the plaintiff consulted Dr Ranasinghe-Markus and other general practitioners in the Avenue Road Medical Practice regarding continuing pain in her neck and pains and other sensations radiating down her right arm which she attributed to the accident. I will briefly summarise these consultations before turning to the findings and opinions of Dr Farey, the orthopaedic surgeon to whom the plaintiff was referred in February 2009 and who became her treating specialist.
6. The plaintiff's consultations with Dr Ranasinghe-Markus and her colleagues with respect to neck and arm pain were interspersed with numerous other consultations for a variety of medical symptoms and complaints. A number of the consultations regarding the neck and arm pain were for the purpose of obtaining certificates of unfitness for work or to discuss the advice given by Dr Farey from time to time - with no up to date history being taken on many of these occasions. Consultations concerning the neck and arm pain occurred on average once every two weeks in late 2008, approximately every six weeks in 2009 and 2010, every four weeks in 2011, every eight weeks in 2012 and once in every four weeks during 2013 (up to October).
7. Dr Ranasinghe-Markus and her colleagues at the Avenue Road Medical Practice wrote certificates of unfitness for work for the plaintiff on the basis of her neck and arm pain and prescribed various anti-inflammatory and pain relief medications. Some of Dr Ranasinghe-Markus's reports to the Workers Compensation insurer of the plaintiff's employer provided opinions regarding the nature of the deterioration in the plaintiff's cervical spine. However those expressions of opinion were clearly derived from the specialist reports of Dr Farey and I will confine my consideration of the detail of orthopaedic and neurological issues, below, to the evidence given directly by the plaintiff's treating specialist and other specialists.
8. In October 2013 the plaintiff ceased to consult the doctors of the Avenue Road Medical Practice altogether. Dr Moore, a general practitioner at the Cremorne Medical Practice, took over her care with respect to neck and arm pain. From the date of the accident up until October 2013 the plaintiff had consulted doctors at the Cremorne Medical Practice about many other health issues but not the neck or arm pain or anything which she attributed to the accident of 12 August 2008.

Referral of plaintiff to Dr Farey in February 2009

1. The plaintiff was referred to Dr Farey in February 2009 by Dr Waks, a general practitioner of George Street Sydney whom the plaintiff's father consulted. The plaintiff's father took an active part in securing her first appointment with Dr Farey, on 16 February 2009.
2. On that occasion, as reported by Dr Farey on 18 February 2009, the only history given by the plaintiff of pre-accident pain associated with her cervical spine was that she had "experienced intermittent neck pain for a period of 10 years". No mention was made of the neurological symptoms in the right arm which she had described to Drs Sheehy and Garrick since 1997 (see [190] - [198]). The plaintiff told Dr Farey that since the accident she had experienced "a sudden increase in her symptoms", with "constant pain of variable intensity" in the neck and radiating from the cervical spine "to the shoulders and inter-scapular region" and to "the right thumb and index finger", with "numbness and paraesthesia particularly at night with lesser symptoms in the left upper limb".
3. Dr Farey conducted "provocative tests for upper limb nerve root compression". That is, he had the patient move her head so as to provoke any potential nerve impingement at the cervical spine. These tests were negative. The doctor found global hypoaesthesia (reduced sense of touch) in the right arm. There was no sign of myelopathy.
4. The MRI scan of 19 September 2008 (which Dr Garrick reviewed - see [209] and [210]) had revealed that "the C5/6 disc shows spondylotic changes with backward slip and kyphosis". The backward slip is referred to elsewhere in the evidence as retrolisthesis, meaning that a vertebra has slipped backwards relative to the subjacent vertebra. The MRI report stated that the spondylotic changes at C5/6 were associated with narrowing of the inter-vertebral space and osteophytes (bony projections from the vertebrae). The report noted "moderate reactive bone changes… in the end plates [ie of the C5/6 disc]" and encroachment in the foramina on both sides at the C5/6 level. That is, narrowing of the openings through which nerves pass to the arms.
5. From this MRI report Dr Farey noted that the plaintiff had "marked degenerative disc disease at the C5/6 level with retrolisthesis". He considered that slight disc protrusion and indentation of the spinal cord was not significant. He noted the stenosis (narrowing) of the foramina at C5/6, and accepted that this was caused by degenerative osteoarthritis or spondylosis. Dr Farey regarded the plaintiff's radiating right arm pain as being C6 radiculopathy - symptomatic of nerve root compression at C5/6, although the provocative tests had not demonstrated any nerve root interference. Dr Farey thought the C5/6 retrolisthesis seen on the MRI of 19 September 2008 was "the major cause of the symptoms". He required further investigation by X-ray and CT scan.

Arm pain intermittent before and after the trip - Dr Farey's reports to June 2009

1. Dr Farey concluded in his report of 18 February 2009 that the tripping incident had led to an exacerbation of the plaintiff's underlying condition and produced increased symptoms. However he was not provided with the reports of Drs Sheehy and Garrick summarised at [190] - [198]. He never saw those reports until they were shown to him during the trial of the action. Nor did he receive secondary information as to their contents before that time. He did not know when preparing his report of 18 February 2009 that the plaintiff had intermittently suffered radiating right arm pain since May 1997.
2. The sparse history given to Dr Farey by the plaintiff omitted the detail of symptoms she had reported to her previous neurosurgeon and neurologist. It omitted the findings of previous MRI scans, notably that of 5 July 2000 (see [193], [194]). I cannot rely upon Dr Farey's conclusion that the tripping incident exacerbated the plaintiff's underlying condition and produced increased symptoms in circumstances where he was not informed about a 13 year history of recurrent and worsening neck and arm pain. It is apparent that Dr Farey was quite unaware the plaintiff had ever suffered any arm pain at all and regarded the neurological sensations and deficits in her arm as symptoms which had only manifested themselves since the accident. He was misled.
3. Dr Farey obtained a report dated 6 March 2009 of the results of an X-ray of the plaintiff's cervical spine and of CT and MRI examinations of the spine. This showed "minor retrolisthesis of C5 on C6 which appears secondary to underlying degenerative disc disease. This is evidenced by fairly marked disc space narrowing and adjacent end plate osteophytes". The report identified mild reversal of the lordosis on CT examination which the radiologist considered was "probably secondary to patient positioning or possibly muscle spasm". The radiologist's conclusion was "mild disc desiccation in the lower cervical spine with most marked degenerative changes at C5/6. There is mild disc-osteophyte at this level, causing mild canal narrowing. There are also minor disc bulges/protrusions at C4/5 and C6/7 levels. There is however no focal cord signal abnormality or evidence of cord odema. There is mild to moderate narrowing of bi-lateral C5/6 exit foramina".
4. In a report of 6 May 2009 following receipt of the above radiological information, Dr Farey concluded that what he understood to be an aggravation of the plaintiff's symptoms had not ceased and that those symptoms "would not have reached this stage had it not been for the incident of 12 August 2008". This opinion on exacerbation and causation, to the same effect as that of 18 February 2009, was given on the basis of a materially incomplete history. I therefore cannot rely upon it.
5. Dr Farey reviewed the plaintiff on 30 June 2009 and reported these findings by letter to Dr Waks of 1 July 2009: "[the plaintiff] complains of persistent neck pain with significant exacerbation of pain since April which usually lasts for a few days. This has been treated with rest, analgesia and anti-inflammatory medication. She does not have any symptoms of nerve root compression nor does she have symptoms of spinal cord compression. She has occasional paraesthesia related to the right upper limb particularly during the day and has subjective weakness in her thighs when walking upstairs."
6. After referring to the radiological report of 6 March 2009 (summarised at [222] above), Dr Farey advised as follows: "Eugenie has symptoms of cervical spondylosis. I would not recommend surgery in the current circumstances as her dominant complaint is that of neck pain and there is no clinical evidence of spinal cord or nerve root compression. I have recommended that she have physiotherapy and anti-inflammatory medication. She should undertake daily range of motion exercises to prevent stiffness. I have discussed the symptoms of spinal cord compression with her and in the long term should she develop these symptoms, decompression stabilisation fusion would be indicated. Spinal fusion for predominant neck and shoulder pain rarely produces satisfactory results even in the presence of successful spinal fusion… In my opinion Eugenie is fit to undertake office duties or building inspections and could return to work in the commercial real estate field. I will review her condition in four months".
7. I conclude from this report that at 30 June 2009, almost 11 months after the accident, the condition of the plaintiff's cervical spine was not different from what it had been for approximately 13 years prior to the accident. Attacks of "painful restriction of movement of her neck" had been reported to Dr Sheehy in May 1997. The periodic "significant exacerbation of pain since April [2009] which usually lasts for a few days", as reported by the plaintiff to Dr Farey on 30 June 2009, had been a symptom of her long term cervical spondylosis noted by Dr Sheehy as early as 13 May 1997, and by Dr Garrick on 7 July 2000, 4 September 2001, 22 May 2004 and 17 March 2008 (see [190] - [198]).
8. The pre-accident reports demonstrate a degree of chronic underlying pain which had persisted "generally" at a sufficient level to disturb sleep on an ongoing basis and which, by March 2008, had increased over a period of at least two months and became still more acute for a period of at least two weeks. This is not a description of intermittent short term pain in the neck and the arms with complete relief and return to normality in between short episodes. It is a description of a chronic experience of pain in the neck and from the neck to the right arm, at varying levels. Just as the neck pain had from time to time prior to the accident flared up to greater intensity and then settled to its chronic level, so it flared up soon after the accident and then reverted to its chronic condition with, again, subsequent episodes of heightened pain. The continuance of the pattern, as evidenced in Dr Farey's report of 1 July 2009, is confirmed in the doctor's subsequent reports reviewed below.

No change in radiological appearance of the cervical spine following accident

1. The physical condition of the involved cervical vertebra, also, appears to have been unchanged in any significant respect following the accident. Dr Garrick so observed in his report addressed directly to the plaintiff dated 25 September 2008 (see [210]). Although the retrolisthesis identified in the MRI report of 19 September 2008 had not been referred to in the 5 July 2000 report, Dr Farey gave emphatic evidence, which I accept, that this feature had been present before the incident of 12 August 2008: T 625.33. He said it was the result of the degenerative condition and that it "develops over a number of years" (T 625.50). Dr Farey considered it "possible but unlikely" that the degree of retrolisthesis was affected by the accident (T 626.32 and, to similar effect, T 635.12 - .18). Dr Farey's evidence satisfies me that the posture of the patient when the earlier MRI scan was conducted may have caused any retrolisthesis which was then present not to have been picked up in the scan or to have appeared to be of a lesser degree than was in fact the case: T 635.35 - .42.
2. Three other significant aspects of the first two post-accident MRI scans showed no change from what had been found on the scan of 5 July 2000. First the MRI reports of 19 September 2008 and 6 March 2009 both refer to mild impingement on the spinal cord at C5/6, without effect on the normal cord signal. This had been present since the scan of 5 July 2000. Secondly both of the post-accident MRI reports noted that the foramina (nerve root exits) at C5/6 were encroached by osteophytes, the bony growths which were a concomitant of the plaintiff's degenerative spondylosis. In the report of 5 July 2000 these osteophytes were referred to as "anterior spur formation". In spite of them, it was then noted that "the foramina on either side appear to be adequate". Thirdly, the 17 September 2008 and 6 March 2009 reports identified a bulge or protrusion of the disc at C6/7 towards the right side. At 5 July 2000 this disc protrusion was not noted as impinging the spinal cord or nerve roots. On 19 September 2008 it was said to be "probably affecting the C6 nerve root with extension to the right foramina" but on 6 March 2009 only mild impingement on the spinal cord was observed, with no abnormality of cord signal, and there was "no significant foraminal narrowing".
3. Following an examination on 30 June 2009 Dr Farey reported (on 1 July 2009), "no evidence of nerve root compression". The plaintiff's complaints of "occasional paraesthesia [tingling] related to the right upper limb" were not, in the doctor's opinion, symptoms of nerve root compression. The plaintiff was advised against a spinal fusion at this time because there was no clinical evidence that altered sensation in her right arm was caused by the condition of her cervical spine. Whilst the variable pain in the neck itself might have been attributable to the clinically observable cervical spondylosis, surgery was not considered likely to relieve that area of pain.

Dr Farey's reports from October 2009

1. Dr Farey again examined the plaintiff on 26 October 2009 and reported (on 30 October) as follows: "She complains of neck pain. At night she experiences bilateral arm pain and paraesthesia on the C6 distribution. On occasion she does experience some paraesthesia in relation to the ulnar fingers of her hand. … Clinically, the cervical spine exhibited global restriction of motion. Neck pain was experienced at the limit of motion. … Provocative tests for upper limb nerve root compression produced neck pain but not upper limb symptoms. Neurological examination was normal. In particular there was no evidence of spinal cord compression. The symptoms experienced by Ms Schneider are secondary to nerve root compression. She does not have any symptoms or signs of spinal cord compression. She could undergo anterior decompression and fusion at the C5 - 6 level which in all likelihood would relieve her upper limb symptoms and reduce some of her neck pain but not completely eliminate it".
2. With respect to neck pain and the absence of spinal cord compression this report shows the position unchanged from that of 1 July 2009. I cannot reconcile Dr Farey's conclusion that the plaintiff's symptoms were "secondary to nerve root compression" with the balance of his report. The symptoms he refers to in that regard must be those of "bilateral arm pain and paraesthesia in the C6 distribution", as those are the only symptoms reported to which nerve root compression could be relevant. But at this date Dr Farey had no further radiological scan or report identifying such compression and the "provocative tests" (causing the patient to move her head in ways which might impinge the nerve roots of the cervical spine: T 646/27 - 36) did not produce upper limb symptoms.
3. However, assuming that the plaintiff was suffering some nerve root compression at this date, it had disappeared by the next examination in early February 2010. Dr Farey's report of 11 February 2010 concerning an examination on 5 February contains the following: "She experiences paraesthesia in her hands, particularly at night. She does not have any symptoms of nerve root or spinal cord compression at this time. She is not taking analgesia. … Clinically, the cervical spine exhibited restricted extension and rotation consistent with cervical spondylosis. … Lateral flexion precipitated neck and shoulder pain. Neurological examination was normal. In particular there was no evidence of nerve root or spinal cord compression. Magnetic Resonance Imaging [referring to a report of an image taken on 3 February 2010] … revealed the presence of degenerative disc disease at the C5 - 6 and C6 - 7 levels with retrolisthesis at the C5 - 6 level. However there was no evidence of spinal cord compression nor was there any evidence of foraminal stenosis causing nerve root compression".
4. Arm pain possibly attributable to interference with nerve roots emanating from the plaintiff's cervical spine, had been reported by the plaintiff since 1995: see [190] - [198]. C5/6 nerve root irritation had been inferred from her complaints of "numbness extending down the right arm particularly to the thumb" (report of Dr Garrick, 17 March 2008). When told of this in cross-examination Dr Farey agreed that these symptoms were "suggestive of nerve root compression": T 644.50. The plaintiff had not complained of any symptoms which could have been attributable to C5/6 nerve root compression after March 2008 up to the date of her accident. After the accident Dr Farey again found these symptoms present in his report of 18 February 2009 (see [216] - [219]) but by the date of the examination to which his report of 1 July 2009 relates they had resolved. Accepting Dr Farey's findings of 30 October 2009 at face value, symptoms which were "secondary to nerve root compression" resurfaced at that date, only to have faded away again by early February 2010.
5. Thus, right through to February 2010 there was no appreciable change in those of the plaintiff's reported intermittent symptoms which were possibly attributable to nerve root compression, relative to her condition prior to the accident. In both periods the symptoms which might indicate nerve root impact have come and gone. Certainly I cannot find a difference - of magnitude, frequency or type - between the plaintiff's pre- and post-accident intermittent symptoms such as could support on the balance of probabilities an inference that the accident had caused a difference by February 2010. There is no temporal relationship between (a) any changed pattern of the coming and going of reported symptoms which could possibly be indicative of nerve root compression and (b) the occurrence of the plaintiff's trip.

Dr Farey's opinion on causation invalidated

1. When Dr Farey was cross-examined upon this continuity of the symptom pattern before and after the accident (T 647.27 - .36) he simply asserted: "What I am saying is that she had a material exacerbation of the symptoms after that incident". When pressed to explain why he would say that, he agreed that "the natural history of these things is that they, they tend to come and go" (T 647.45). At T 648.43 - 649.10 the following evidence was given (emphasis added): "Q. …first of all you said you thought [the trip incident was a material cause of the plaintiff's condition post 12 August 2008 because it was only after this incident that she had presented with true nerve root compression or symptoms. That's what you initially said, didn't you? A. Yes. Q. That you thought that in the past it had always been localised to just neck pain, is that correct? A. Yes. Q. Then I've taken you to Dr Garrick's reports and you can see that that's not correct in terms of the history you were given. Then you said-- HIS HONOUR Q. Do you agree with that? You were nodding but are you agreeing? A. I, I - well according to Dr Garrick's history, there's a history of arm pain, that's not a history I obtained your Honour.
2. It is clear from other answers given by Dr Farey (at T 644.33 - .50) that he thought the plaintiff had presented to him with "symptoms significantly different at the time [he] first saw her to those that she was presenting to Dr Garrick with back in 2000 to 2008". That was because when he first saw her in February 2009 she had "specific C6 nerve compression symptoms" which he understood had not been presented to Dr Garrick. But he agreed at T 644.50 that Dr Garrick's report of 17 March 2008 does record such symptoms.
3. At T 628.32 Dr Farey was questioned as follows (emphasis added): "Q. …how would you describe the nature of the exacerbation was it minor or major or somewhere in between? That is, from the incident of 12 August 2008. A. It was significant in the fact that she hadn't experienced nerve compression symptoms before and it did persist. I, I wouldn't say its major - because it - not - it hasn't got neurological deficit but it is a very significant episode which persisted. Q. And… A. And did not respond to appropriate non-operative treatment."
4. The fundamental premise of this opinion about exacerbation caused by the incident of 12 August 2008 is false, through no fault of Dr Farey's, because he was not provided with Dr Garrick's reports at the time of his first consultation with the plaintiff or at any time thereafter in the course of preparing his own sequence of reports (T 623.25; 367.26). He had not read the entirety of Dr Garrick's reports even at the date of giving evidence. Nor was he given, orally or in any other form, the substance of the history and opinions set out in Dr Garrick's reports. He said that the most complete statement of the history that she did give is that set out in the second paragraph of his report of 18 February 2009, to the effect "that she reported she had experienced intermittent neck pain for 10 years": T 638.18 - .33.
5. At T 637.39 - 638.7 this evidence was given (emphasis added): "Q. But also she was complaining [in March 2008] of brachialgia with numbness extending down into the right arm, particularly down into the right thumb. Were you aware that she was giving a history of that sort of symptom only five months prior to this incident? A. That's not - I didn't obtain that history. She reported that she'd had neck pain and shoulder pain but she did not complain of pain in the arm. … A. Irrespective of that, your Honour, the fact of the matter is according to the patient I have to rely on the patient in this regard, prior to the incident she had not had any arm pain and symptoms in this distribution now after that [ie the accident] she did develop them."
6. Dr Farey himself acknowledged that his conclusions about exacerbation of the plaintiff's condition caused by the incident of August 2008 - increased duration of neck pain and commencement, for the first time, of C6 nerve root compression symptoms - are invalid if (as turns out to be the case) the pre-accident history which he was given by the plaintiff was materially incomplete. At T 636 - 637 he stated that symptoms of pain in the arm and particularly down into the right thumb, the C6 distribution, would be expected as a general rule within a month or two after an incident which caused them but that that would not always be the case. He gave these answers: "A. Within a month or two but sometimes, as I say you get this exacerbation of the underlying symptoms, and then several months later they develop the ongoing symptoms in the arm. It's not entirely predictable your Honour. Q. In terms of the symptoms, you're talking about not just neck pain but brachialgia with numbness extending down to, in this case, the right arm, particularly the right thumb I think you said? A. Thumb and index finger. That's… the distribution of the C6 nerve root. Q. So that's what you were looking for, and that's what you based your opinion [on] in relation to causation or the answer to causation you just gave to Mr Twomey? A. That's part of the causation, because she developed increased neck pain. Now she had, before the incident there was a history of intermittent neck pain, and then after the incident there was a history of constant neck pain and the development of the C6 nerve compression symptoms. Q. You've treated her, but in terms of causation you're very much dependent upon the earlier history being correct I take it? A. That's correct. Q. So if that's not correct, your opinion in relation to causation may also not be correct? A. That's correct."
7. In a number of reports, particularly addressed to the Workers Compensation insurer of Office & Industrial, Dr Farey expressed the opinion that the plaintiff suffered ongoing aggravation of the symptoms of her cervical spondylosis, attributable to the accident of 12 August 2008, continuing up to mid-2015. His oral evidence extended this to an opinion upon causation lasting right up to the date of trial. For example his letter of 6 May 2009 included the following opinions: "Ms Schneider has experienced an exacerbation of symptoms of cervical spondylosis as the result of a work related injury on 12 August 2008. In my opinion the aggravation has not ceased and I would expect her to continue to experience symptoms. …in my opinion Ms Schneider's symptoms would not have reached this stage had it not been for the incident of 12 August 2008."
8. Another letter to the insurer dated 20 January 2010 included the following: "In my opinion the symptoms experienced by Ms Schneider in relation to her cervical spine have been aggravated by her injury of 12 August 2008. Her symptoms have increased in intensity compared with those experienced prior to her injury. In my opinion the incident of 12 August 2008 is a substantial contributing factor to her current presentation. Following the injury she reported that she developed significant pain and required pain medication for her symptoms. Prior to the injury she did not require this medication. …in my opinion the aggravation of her pre-existing cervical spondylosis has not ceased and continues as she continues to have significant pain in relation to her cervical spine of a greater intensity than experienced prior to her injury."
9. I do not accept these opinions and cannot make findings in accordance with them because of the falsehood of the premises. Additionally to what I have already referred to, the letter of 20 January 2010 relied upon a premise that the plaintiff had not prior to 12 August 2008 required pain medication for her symptoms. In fact, the earlier reports show that Voltaran, sinequan, neurontin and NSAID had all been prescribed and/or used. Further, it was not possible for Dr Farey at the date of this report to compare the plaintiff's pre-accident and post-accident pain levels for the purpose of founding a conclusion as to whether they had increased. The doctor did not have the records of the plaintiff's reportage to the previous specialists. He was not in a position to assess what her pre-accident level of pain had been.
10. In a report of 3 August 2010 concerning examination of the plaintiff the preceding day, Dr Farey recorded a recent history of development of "numbness in her right upper limb while driving and… [subsequent] increased neck pain with associated inter-scapular, right shoulder and arm pain radiating to the elbow". The doctor found that extension of the plaintiff's neck combined with rotation "precipitated neck and proximal right arm pain as did lateral flexion". Although the opinion is not expressed in this report, consistently with evidence given elsewhere by Dr Farey this would suggest some degree of nerve root compression or irritation. He found that restrictions on extension and rotation of the plaintiff's neck were "consistent with her known degenerative change".
11. Similarly in a report of 20 May 2011 Dr Farey found that on recent examination the plaintiff had restricted extension and rotation of her neck, with pain at the limit of motion. Also, certain movements of the neck increased the right arm pain indicating C6 nerve root compression. On those indications Dr Farey opined that there were good indications for surgery to fuse her cervical vertebra.
12. Similar findings in a report eight months later, on 11 January 2012, resulted in the doctor recommending a C5/6 decompression and fusion. An MRI report of 13 January 2012 confirmed that at C5/6 there was "marked loss of disc height and degenerative plate changes". The report continued, with respect to C5/6: "There is an associated right uncovertebral osteophyte, the combination of which results in mild to moderate right-sided neural exit foraminal narrowing, which may be irritating the exit right C6 nerve root".
13. In the same MRI report the following was stated with respect to the C6/7 level: "at C6/7 there is some loss of disc height and a small to moderate diffuse posterior disc osteophyte complex. There are associated bilateral uncovertebral osteophytes. This results in mild bilateral neural exit foraminal narrowing and mild central canal stenosis".
14. The fusion of C5/6 and C6/7 was carried out by Dr Farey on 28 March 2012. The doctor's operation report confirms that he found narrowing of the foramina at both levels, with nerve root compression. At T 633 - 634 Dr Farey confirmed that the causes of the narrowing were threefold: loss of height in the disc due to the degenerative disease (which involves diminished hydrostatic pressure within the disc); retrolisthesis (which, as explained by the doctor elsewhere, is another aspect of progression of the cervical spondylosis) and uncovertable osteoarthrosis (being the enlargement of a joint immediately adjacent to the foramin which "thickens and … narrows the hole where the nerve comes out").
15. In further reports of 17 May 2012 and 16 August 2012 Dr Farey expressed the view that the plaintiff had obtained "complete resolution of her radicular pain". That is, pain in her arms radiating from the nerve roots at the neck and caused by nerve root compression at the exit foramina. The plaintiff nevertheless continued to complain of neck pain and "nocturnal numbness in her hands".
16. By December 2012 magnetic resonance imaging showed disc protrusion and retrolisthesis at C4/5, which was likely due to the progression of the plaintiff's cervical spondylosis and increased stress at this level resulting from fusion of the three subjacent vertebrae: T 629.32. No clinical evidence of further nerve root compression was found at C4/5 on subsequent examinations until September 2013.

Evidence of Dr Ian Sutton

1. Dr Ian Sutton, a consultant neurologist, was engaged on behalf of Capital Investors to provide an opinion on the plaintiff's medical condition. His report is dated 6 November 2013 and he gave extensive oral evidence. Unlike Dr Farey, Dr Sutton read and analysed numerous medical reports concerning the plaintiff dating from prior to the accident, including all of those quoted in these reasons. His own forensic report contains an extensive analysis of the reports of Dr Sheehy and Dr Garrick dating from May 1997 and of the radiological reports from 5 July 2000 onwards. Further, he considered Dr Garrick's post-accident report of 25 September 2008 and the reports of Dr Farey, commencing with that of 18 February 2009.
2. Dr Sutton examined Ms Schneider on 6 November 2013 and found that detailed neurological examination was "essentially normal". The only abnormality, a reduced sensation to pinprick over the right arm extending to the trapezius, was considered by Dr Sutton to be a "non-dermatomal distribution". That is, it does not correspond with compression or irritation of any particular nerve root.
3. Dr Sutton expressed the following opinion: "As outlined in the correspondence of Dr Garrick initial pain presentation may well have been due to a symptomatic disc protrusion, but there has clearly been a transition from chronic pain to a 'chronic widespread pain syndrome'. This syndrome is characterised by axial pain and pain in other body regions. It is recognised that 21 - 24.5% of individuals with chronic lumbar back pain or neck pain progress to a fibromyalgia syndrome or other types of chronic widespread pain. Risk factors for this transition include other co-morbidities such as irritable bladder syndrome and irritable bowel syndrome that have been experienced by Ms Schnneider. This disorder is considered to be a dysfunctional pain syndrome due to maladaptive plasticity within the central nervous system."
4. At T 500 - 501 Dr Sutton further explained his diagnosis of the plaintiff's condition, both before and after the incident of 12 August 2008, as "an idiopathic pain disorder". That is, pain that could not be explained in terms of trauma or degeneration sustained. He considered that it is pain the distribution of which is more widespread than would be expected from a particular insult or site of degeneration. At T 513.32 the doctor explained the plaintiff's perceptions of pain as recorded in the pre-accident reports, upon the basis that she was "perceiving pain from her cervical spondylosis in her brain and her brain is doing something that is causing referred pain elsewhere and referred sensory symptoms elsewhere. … This is a brain issue".
5. At T 515.5, with reference to Dr Garrick's report of 17 March 2008, Dr Sutton expressed the opinion that the descriptions in that report of sensory symptoms in the face, which could not be organically explained by reference to the condition of the cervical spine, indicates that "this is an evolving problem with the brain, and not necessarily with the spinal cord". As at March 2008 Dr Sutton was of the opinion that the plaintiff had "a relapsing progressive chronic widespread pain syndrome, which [was] idiopathic in nature. It may have been triggered by disc degeneration 12 years earlier, but there has been no clinical, by which I mean clinical examination or imaging, findings to support any significant pressure on the spinal cord or the nerve roots, and that the evolution of these symptoms are consistent with a cerebral aetiology that is poorly understood or not understood".
6. Dr Sutton's evidence in this respect is entirely plausible and I accept it. It is consistent with the descriptions of wide ranging pain and other sensations which the plaintiff gave to Drs Sheehy and Garrick over the years prior to the accident, which none of the specialists has been able satisfactorily to attribute to any organic cause. For example pain, discomfort and altered sensation in her legs has been intermittently complained of by the plaintiff. But in the absence of any alteration of the cord signal in the spine, these symptoms are not explicable as in any way organically or mechanically related to the progress of her cervical spondylosis. Similarly, the plaintiff has from time to time, both before and after the accident, given evidence of various distributions of pain, paraesthesia and other sensations in her arms which are non-dermatomal and/or have occurred in the absence of any evidence (either from an MRI scan, from clinical examination or from provocative testing) of nerve root irritation or compression. Dr Sutton describes a recognised condition of widespread chronic idiopathic pain which occurs in a significant proportion of patients who suffer insult or degenerative disease to the lumbar or cervical spine. I find there is ample evidence to support Dr Sutton's analysis that the plaintiff was such a patient up to the date of her accident and I accept his opinion in this regard.
7. At T 523.32 Dr Sutton expressed the opinion that it was not plausible that there had been any mechanical disruption caused by a trip of the nature described by the plaintiff which would contribute to the worsening of the symptoms which the plaintiff had described to her treating doctors up to the date of the accident. At T 524 - 525 Dr Sutton gave the opinion, in accordance with that of Dr Farey, that the retrolisthesis at C6/7 which was first noted in an MRI report post the accident would not have been caused by the accident. Dr Sutton did not identify anything in the post-accident MRI scans which indicated a physical deterioration or alteration that could be attributed to the trip. This also is consistent with Dr Farey's evidence.
8. In Dr Sutton's view all that occurred as a result of the trip on 12 August 2008 was a short-term aggravation of the plaintiff's chronic widespread pain syndrome: "…based on reports in the provided documentation it is apparent that Ms Schneider had at least a ten year history of a relapsing - remitting pain disorder [elsewhere referred to as a chronic widespread pain syndrome]. There was an aggravation of the condition by the trip that occurred on 12 August 2008, but symptoms and neurological signs did not alter appreciably as a result of the trip and the pain continued to vary in intensity."
9. Further, in supporting the view that the trip incident did not cause any injury or symptoms which necessitated the spinal fusion operation carried out by Dr Farey on 28 March 2012, Dr Sutton said this: "Surgery was performed based on symptoms and signs that had not altered appreciably in over ten years. There was no abnormality on clinical examination or MRI that suggested surgery was necessary and the distribution of symptoms and signs indicated a diagnosis of a chronic widespread pain disorder rather than a significant right C6 radiculopathy. Surgery has not resulted in any significant improvement in symptoms."
10. I do not express any opinion on the correctness of Dr Farey's advice to carry out the cervical spinal fusion on 28 March 2012 upon the basis of the history he was given. Medical diagnoses and recommendations for treatment, like any other form of professional advice, can only be judged having regard to the information given. The history given to Dr Farey was materially deficient in respects already noted. I accept Dr Sutton's evidence that when the entire picture of pre-accident symptoms is taken into account, the basis upon which Dr Farey formed his opinions and recommended treatment falls away.
11. I accept Dr Sutton's analysis, at T 526 - 529, that the histories taken by Dr Farey in his sequence of reports from 18 February 2009 onwards considered against the earlier reports of Drs Sheehy and Garrick show that there was no more than "a transient deterioration of symptoms in relation to the episode of 12 August 2008" and that thereafter the MRI imaging showed "minor changes… which may well be just age-related and degenerative". I accept Dr Sutton's conclusion that Dr Farey's reports record no evidence of nerve root compression at C5/6 at least up to February 2010. Dr Sutton disagrees with the conclusion in Dr Farey's report of 20 May 2011 that C6 nerve root compression was indicated by an increase in right arm pain upon extension combined with rotation and lateral flexion of the patient's neck. I accept Dr Sutton's evidence that, even accepting these clinical signs as sufficient evidence of nerve root compression, given the date of the finding - nearly three years after the incident - this could not be "connected back" to the trip on 12 August 2008 either "directly or indirectly" (T 530.40).
12. The fact that the plaintiff has received some amelioration of her arm pain since the fusion operation does not cause me to doubt or reject Dr Sutton's evidence that that pain, when experienced, was idiopathic. I accept Dr Sutton's opinion that the perceived improvement may well be purely psychological: T 532. The significance of Dr Sutton's diagnosis, based on the pre-accident reports, of a chronic widespread idiopathic pain syndrome is that this is not something which would likely be affected in a permanent way by a trip incident such as occurred. Also, this diagnosis explains the essential uniformity of the plaintiff's condition before and after 12 August 2008. In both periods, she has had widespread, "relapsing - remitting" pain, not organically explicable. Nothing has changed.
13. Dr Sutton took part in a conclave on 9 July 2015, together with Dr David Millons and Dr John Davis. Dr Millons is a surgeon who provided two expert reports for the plaintiff. Dr Davis is a specialist in occupational medicine who also provided reports for the plaintiff. In the report of that conclave Drs Millons and Davis recorded their agreement that there was a one-third contribution to the plaintiff's present medical condition from her pre-existing condition. In other words, two-thirds is attributable to the accident.
14. The report also states that "Dr Ian Sutton indicated that 10% was due to the incident and the majority was due to the pre-existing condition". His opinion was elaborated more fully as follows: "Dr Ian Sutton felt that the current condition reflected the pre-existing and other medical co-morbidities. He felt from the description of the injury that there would have been a temporary exacerbation of a pre-existing condition and did not feel that there was any mechanism that could explain why there had been a severe and progressive deterioration on the basis of minor mechanical trauma that would have been sustained at the subject incident. He noted that the fact she had got worse after surgery, when surgery should have been a curative condition, suggested that the presentation was typical of a number of patients who end up in a spiral of chronic widespread pain syndrome which cannot be directly attributed to such a minor mechanical injury."
15. In his oral evidence Dr Sutton was asked to reconcile the 10% attribution to the accident with the other views that he recorded in the report (at T 535). He said that he did not wish to adhere to the 10% attribution. At T 536 he said that he considered there was "a couple of weeks of aggravation" and that he did not attribute any proportion of her ongoing symptoms to the incident. At T 553 Dr Sutton explained that he thought it was his obligation in the conclave to be conciliatory towards the other experts and to try to arrive at a compromise position. I accept that Dr Sutton misapprehended his obligations in the conclave and the fact that he accepted a 10% attribution in the conclave and then withdrew it in oral evidence does not cause me to have any reservation about his evidence in that respect or generally.

Other expert reports in orthopaedic and neurological disciplines

1. As mentioned, Drs Davis and Millons attributed the plaintiff's post-accident symptoms and disabilities to the accident as to 66%. Dr Higgs, an orthopaedic consultant and biomedical and forensic engineer, provided a report under engagement by the plaintiff's solicitors. He attributed the plaintiff's symptoms and disabilities as to 90% to the accident. Dr Farey attributed 50% to the accident. Dr Wallace (an orthopaedic surgeon engaged by the Workers Compensation Insurer of Office & Industrial) and Dr Evans (an orthopaedic surgeon engaged by the solicitors for ISS) agreed with Dr Farey as to 50%. In view of this divergence of opinion I cannot take any of these percentages at face value. I must revert to the underlying reports of each expert to ascertain the basis of their respective views. I have already done this in relation to Dr Farey.
2. Dr Davis, in a report of 14 December 2011, recorded the results of his examination of the plaintiff on the preceding day and summarised radiological reports from 6 March 2009. His only reference to the long pre-accident history of the plaintiff's neck pain and wide-ranging complaints of pain in her limbs is as follows: "She also has a long history of suffering with cervical symptoms which commenced in early to mid-1990s. She reports these symptoms as being pain and stiffness with occasional accompanying tingling and numbness affecting both hands, although greater on the right side. Her symptoms are quite variable although there was a flare up in 2000, at which time she was referred to Dr Ray Garrick, a neurologist, who treated her with Prednisone and arranged MRI scanning. This treatment resolved her symptoms to a significant degree, and although she did suffer with some variable ongoing difficulties these were intermittent in nature and did not impact significantly on her day to day activities".
3. This is a materially understated reference to the pre-accident history. Dr Davis' report gives no indication that a full version of the report of Dr Sheehy of May 1997 or the numerous and detailed reports of Dr Garrick had been provided to him or reviewed and taken into account. Nor does Dr Davis' report contain any indication that he was informed of or took into account the course of symptoms identified to Dr Farey and the sequence of neurological and clinical indications which Dr Farey found during his post-accident examinations. Dr Davis' report of 14 December 2011 therefore does not address the important similarities between the plaintiff's pre-accident condition and her post-accident condition, as analysed by Dr Sutton.
4. In the absence of any reasoning from Dr Davis showing that he has considered and dealt with the entirety of this relevant data I cannot accept his conclusions that the plaintiff "suffered significant aggravation of her [lower cervical disc] injury when she jarred her neck when she tripped getting out of the lift on 12 August 2008". I do not accept Dr Davis' view that there has been "a considerable increase in intensity of her symptoms and in her degree of impairment associated with the neck where there is some instability at C5/6 with retrolisthesis and also disc injury at C6/7 with C6 nerve root impingement and clinical signs". Dr Davis was not in a position to express this opinion with any weight or persuasiveness in the absence of (a) recognition by him of the pre-accident and post-accident detailed histories, multiple MRI scans and reports of clinical examinations and (b) any reasoning to show where the difference in "intensity" lies.
5. The available detail of the course of the plaintiff's condition before the accident, including symptoms of arm and lower limb pain not explicable by reference to clinical signs or MRI scan results, coupled with the continuing intermittent nature of her arm pain after the accident in the absence of objective evidence of nerve root compression for most of the time, makes the issue of whether the accident contributed to the plaintiff's symptoms and disabilities and if so in what degree a complex one. It requires careful analysis of all available data with close attention to the chronology. I find Dr Davis' brief reference to the pre-accident condition, followed by an assertion of aggravation and of increased intensity of pain, inadequate and unconvincing. I consider that his conclusions have been refuted by Dr Sutton's more thorough methodology and analysis.
6. Dr Davis prepared a second report dated 29 October 2013. At that time he re-examined the plaintiff and was provided with reports of Dr Farey from 11 January 2012 onwards, but not with those of 2009, 2010 and 2011. His second report suffers from the same weakness as the first. I cannot rely upon the conclusions in it, which substantially repeat the conclusions expressed at 14 December 2011.
7. The final report from Dr Davis is dated 8 July 2015, taking into account a further examination of the plaintiff. He did not alter or retract his earlier expressed opinions. He added that it was "highly likely that she has also developed a chronic pain syndrome as well as severe depressive symptoms as a result of her continuing pain and inability of her medical practitioners' to afford her an acceptable degree of relief".
8. Absent a thorough consideration of the pre-accident reports Dr Davis could not appreciate that, as Dr Sutton has shown, the chronic pain syndrome was established well before the accident and the plaintiff's history shows no material change from the pre-accident symptoms and diagnosis. As for Dr Davis' attribution of 66% causation of the plaintiff's ongoing condition to the accident, no reasoning whatsoever has been provided to support this figure and I place no weight upon it.
9. Dr Millons' report of 27 March 2014 is affected by the same considerations as apply to the reports of Dr Davis. He considered reports of Dr Garrick of 2000 and of 17 March 2008 and radiological studies of 5 July 2000 and 20 September 2008 and later. He has undertaken no analysis of the full course of reporting of symptoms and clinical examinations, as set out in the pre-accident reports of Drs Sheehy and Garrick. He has not compared that course of reporting with the reports of Dr Farey's examinations post the accident. His bald conclusion that the plaintiff has "multi-level constitutionally based attritional changes in the cervical spine which appear to have been significantly aggravated by an incident at work in June 2008 (sic) with symptoms continuing thereafter" is in my view invalidated by what is in fact a continuity of the plaintiff's condition before and after 12 August 2008.
10. In light of the pre-accident history Dr Millons' statement that the "incident appears to have been a significant aggravation and the main cause of her ongoing pain thereafter" is no more than an unreasoned and unsupported assertion. Dr Millons' reports of 22 April 2014 and 3 May 2015 do not make up the deficiency of reasoning to support his views. As with Dr Davis, his support at the conclave for 66% attribution of symptoms to the accident is unexplained.
11. Dr Higgs' report of 23 June 2010 is expressly based upon his "objective findings" following examination of the plaintiff that day. He came to the following conclusion: "My consideration of all the evidence has caused me to form the conclusion the injury incident that occurred at work on or about 12/08/08 has been cause for Ms Schneider to suffer from permanent aggravation to pre-existing, and co-existing, cervical spinal degenerative pathology. The permanent aggravation that has been suffered has caused Ms Schneider to suffer from more severe neck pain and to suffer also from a continuing right sided C6 (predominantly) radiculopathy… My consideration of all of the evidence has caused me to form the conclusion that work is the substantial contributing factor to Ms Schneider's injury and to her present condition. However I have formed the conclusion that pre-existing, and co-existing, degenerative cervical spinal pathology is partly causal for any impairment of cervical spinal function. It is clearly evident that pre-existing, and co-existing, cervical spinal pathology has suffered aggravation and the injury incident that occurred on or about 12/08/08 can be considered as being causal for that aggravation."
12. In reaching this conclusion the only account taken of the plaintiff's prior history is the following: "The past history of this case is relevant. Ms Schneider has admitted that she has previously suffered from neck pain. The lady's history of neck pain extends for a little more than 10 years. The neck pain has at times required steroid therapy (Prednisone). The lady's neck pain has previously been associated with the suffering of upper extremity brachialgia that has been cause for her to experience sensations of numbness and tingling in the fingers of the right hand."
13. Dr Higgs had received copies of the reports of Dr Garrick of 7 July 2000, 4 September 2001, 17 March 2008 and 25 September 2008 (two reports of the last-mentioned date). He had also received copies of Dr Farey's reports of 18 February 2009, 30 October 2009, and 11 February 2010. However his own report does not address these in any detail and does not acknowledge the apparent continuity of the plaintiff's condition which the pre-accident and post-accident medical reports show. He has not provided any explanation of why he considers there to be a lack of continuity from before the accident to after it.
14. Subsequent reports of Dr Higgs do not make good this gap in reasoning and explanation. In examination-in-chief at T 594.31 - 596.19 Dr Higgs was referred, in a general way, to the fact that the plaintiff had been under the care of Dr Garrick between 2000 and 2008. He was reminded that the plaintiff had worked for most of that period albeit that she had returned to her doctor with neck pain from time to time, including in March 2008. Dr Higgs expressed the view that "one could question whether there is any persuasive evidence to support an opinion that this lady, in fact, suffered from any impairment prior to the accident" (T 595.13).
15. I reject that proposition. I am comfortably satisfied that the symptoms described in the reports of Drs Sheehy and Garrick from prior to the accident would have interfered with her capacity for work, given that they included painful and significant restrictions of movement of the neck, brachialgia, feelings of weakness in the legs, a tendency for the right deltoid and bicep muscles to give way and other like symptoms. Dr Garrick's report of 22 April 2004 recorded that "her desk and computer work is an aggravating factor". As recently before the accident as 17 March 2008 Dr Garrick recorded her symptoms as including "right sided anterior and cervical lower neck pain and some movement restriction", with "altered sensation over the back and extending to the right side of the face and brachialgia with numbness extending down the right arm particularly to the thumb".
16. Dr Higgs' answers at T 594 - 596 are expressed in terms of legal conclusions. He referred to "apportionment" and to the "permanent impairment guidelines" of WorkCover. At T 598.16 Dr Higgs proffered a consideration of the case "in light of that other legal doctrine that's represented by the eggshell skull case". Nowhere in his oral evidence did Dr Higgs descend to a careful comparison of the pre-accident reportage of symptoms with the post-accident reportage and results of clinical examinations as recorded in Dr Farey's reports. When cross-examined as to what material Dr Higgs had seen in relation to the plaintiff's condition prior to 12 August 2008 he replied: "I basically rely on what the client has told me at the interview" (T 598.24). This was reconfirmed at T 599.18 - .23. Regarding his understanding of an absence of impairment pre-accident I have taken into account his cross-examination at T 597.48 - 598.9; 600.10 - .15.
17. Although it was made apparent, from the tender of Exhibit J, that Dr Higgs was provided with pre-accident reports of Dr Garrick, he did not recall during his cross-examination having been provided with them and evidently did not pay them significant heed. He gave this answer at T 602.4: "Well all the lady advised me was that she saw Dr Sheehy in May 2009. Whether or not she saw 100 neurosurgeons in the past really is not of any great importance to me, because the matters I was presented with was the situation where a lady suffered injury in a trip and fall event coming out of a lift when the lift and the floor level were not at the same level and that she tripped and suffered a movement that was associated with an experience of neck pain".
18. This dismissal of the prior history appears to me unjustifiably cavalier. It flows from Dr Higgs effectively having simply assumed that an injury was sustained in the trip and that it caused subsequent symptoms, rather than looking to the mass of detailed evidence which was available to throw light upon whether the symptoms which followed the accident may have been no more than a continuation of what had been suffered for years before, without causative influence of the trip itself. Dr Higgs continued in the same vein at T 602.27: "It wouldn't have mattered whether she'd - how many people she'd seen. The point I'm making is that when she stepped out of that lift and tripped and fell and… suffered a sudden movement, the lady thereafter became symptomatic. Now, as far as I'm concerned or unless I'm living on another planet, … but for that incident this lady would not have suffered pain" (emphasis added).
19. The word "thereafter" in this answer introduces a false premise. With respect I find Dr Higgs' approach as reflected in these answers superficial and unhelpful.
20. Dr Higgs' report made no reference to the alternative analysis of the plaintiff's pre-accident symptoms by Dr Sutton, namely that it showed idiopathic widespread chronic pain disorder: T 600.10 - .15. When this conclusion was put to Dr Higgs for his comment, he was dismissive, referring to it as a "spurious sort of descriptive": T 600.23.
21. At T 602 - 608 counsel for Capital Investors put to Dr Higgs a number of the pain and altered sensation symptoms of which the plaintiff had complained prior to the accident which did not appear capable of explanation by reference to the physical condition of the cervical spine (as revealed by MRI scans or by clinical examinations). Counsel in effect put to Dr Higgs that these symptoms indicated, as Dr Sutton has opined, a chronic widespread idiopathic pain disorder, pre-dating the accident and capable of having continued thereafter so as to produce similar symptoms without supporting an inference that the accident itself had been causative of them. In broad terms Dr Higgs' response was that all symptoms of pain or altered sensation have to have an organic explanation and that "there's no such thing as this idiopathic pain disorder… pain is something that people may complain of, suffer from, that can, if we look far enough, be found to be associated with a cause".
22. I reject this evidence. I accept the opinion of Dr Sutton that there is a recognised phenomenon of idiopathic pain disorder which involves the patient feeling symptoms of pain or altered sensation as an artefact of brain activity which is not completely understood in medical science and where the symptoms cannot be associated with identifiable organic cause.
23. The report of Dr Wallace dated 18 November 2008 is based on examination of the plaintiff the preceding day. His view was that there was no more than a "temporary aggravation of pre-existing cervical spondylosis". He considered that this aggravation had continued up to the date of his report, a period of three months. I prefer Dr Sutton's evidence as to the length of the temporary aggravation, namely two weeks, because he had the benefit of reviewing the entire post-accident sequence of events as reported by Dr Farey whereas Dr Wallace's formation of opinion predated most of Dr Farey's sequential reports. Also, Dr Wallace has not provided any analysis of the extensive pre-accident specialist reportage, nor identified in any detail what was different and additional in the plaintiff's post-accident symptoms - whereas Dr Sutton has made that comparison. Dr Wallace's view expressed in the conclave report that the plaintiff's "past and future restrictions", post-accident, were 50% attributable to the incident on 12 August 2008 is not supported by any supplementary report from Dr Wallace or in any other way. He did not give oral evidence.
24. Dr Evans' report dated 23 November 2013 refers to Dr Sheehy's report of May 1997 and to the MRI scan reports of 5 July 2000, 20 September 2008 and 11 June 2013. He came to the following tentative conclusion: "Ms Schneider's complaints and symptoms are attributable to the accident by way of aggravation of a pre-existing condition. In this respect I note that although she had been having problems from about 1995 there appears to have been a significant deterioration in the MRI scans between 2000 and September 2008 following the accident. This is a long time of course but nevertheless there was an alteration and this could have been the result of the injury. It is often difficult to be sure however. … It is unusual for a condition to deteriorate to the extent that one requires major surgery and so I would have to say that although it is possible [that this occurred without influence from the incident of 12 August 2008] it is at least equally likely that her condition deteriorated because of the accident".
25. No other doctor, including Dr Farey has suggested that the differences between the MRI scan results for 5 July 2000 and 19 September 2008 could be relied upon as indicating that the intervening accident, on 12 August 2008, had caused physical deterioration which was observable in the scans. This is an inadequate basis for the expression of any view and Dr Evans' tentativeness with respect to his conclusions is understandable. However his subsequent adoption of 50% as the extent of contribution from the accident to the plaintiff's ongoing symptoms, as expressed at the conclave, is not understandable. No reasons for his view as to this quantum appear in the conclave report and he has given no supplementary written report or oral evidence to explain himself. I do not accept Dr Evans' opinions, in his report or as given in the conclave, as a foundation for a finding that the accident had any effect beyond the two week period of aggravation of symptoms which Dr Sutton has accepted.

Psychiatric evidence

1. The evidence tendered concerning the plaintiff's psychiatric state includes reports of Dr Peter Klug, Forensic Psychiatrist, dated 30 September 2013 and 8 July 2015 (obtained by the plaintiff); a report of Dr Alex Apler, Forensic Psychiatrist, prepared for Capital Investors and three reports of Mr Simon Turmanis, Clinical Psychologist dated 3 October 2013, 22 November 2013 and 15 April 2014. Mr Turmanis' reports had been provided on those dates to Dr David Moore, the plaintiff's general practitioner at the Cremorne Medical Practice.
2. Drs Apler and Klug took part in a conclave on 8 July 2015 and produced a report thereon dated 23 July 2015 which was also tendered. This commenced with a very useful summary of the medical records of the plaintiff's general practitioners and of the Royal North Shore and St Vincent's Hospitals, concerning consultations of the plaintiff with respect to psychiatric issues prior to the accident and concerning her admissions to hospital and treatment for acute anxiety and depression. In these records the causes of Ms Schneider's psychiatric disturbances were reported as "work and relationship stress on a background of characterological anxiety".
3. The conclave report also includes a summary of Mr Turmanis' findings which relate to the period after the incident of 12 August 2008. Mr Turmanis' reports commence five years later, in October 2013, when the plaintiff presented as "struggling to cope with her partner's alcoholism and its complications, as well as being stressed by her WorkCover claim and affected by neuropathic pain". Mr Turmanis had concluded that the plaintiff satisfied diagnostic criteria for Major Depressive Disorder and Generalised Anxiety Disorder.
4. In the conclave report Dr Apler concluded that it was likely the plaintiff "was affected by Generalised Anxiety Disorder and a Major Depressive Disorder". Prior to the accident he considered that the work and relationship stresses she was under at that time "while contributory, would not by themselves explain her chronic pattern of anxiety and the symptoms of depression she experienced from time to time. It is likely that she had a psychiatric disorder which was constitutional". Dr Klug was "reluctant to retrospectively diagnose a major psychiatric condition [pre-accident] such as a Generalised Anxiety Disorder". He nevertheless accepted Dr Apler's "rationale" and did "not discount the possibility that Ms Schneider has a tendency towards being excessively anxious".
5. Dr Apler said if the tripping incident had not occurred the plaintiff would "probably" have "remained affected by chronic, fluctuating psychiatric disorder". He considered that the plaintiff's documented refusal to accept psychiatric treatment had "contributed to the chronicity of her symptoms". Dr Klug also thought that it was "likely that Ms Schneider had a pre-disposition to anxiety-based symptoms". Although he found it difficult to know in retrospect whether the plaintiff had a full anxiety disorder prior to the accident, he expressed the opinion that if she did "then this is likely to be a recurrent condition unless successfully treated".
6. With respect to the effect of the incident, Dr Apler acknowledged that it was possible that any increase in pain and disability caused thereby could have exacerbated her pre-existing psychiatric disorder. However he laid stress upon the history of her having intentionally overdosed on 4 May 2008, whilst intoxicated. He considered this to be "evidence of an exacerbation in her psychiatric disorder prior to the incident of 12 August 2008". He noted that she had not consulted a psychiatrist before the incident of 12 August and that as there was no major change in her treatment it was "likely that she remained affected by her exacerbated condition at the time of this incident".
7. Hence, Dr Apler considered it "difficult to assess the extent to which this incident further exacerbated her symptoms" and, on the other hand, he identified that the psychiatric complaints for which she had consulted Mr Turmanis, commencing in mid-2013, had been provoked by "her partner's alcoholism and abusive, manipulative behaviour, and poor health affecting her partner and her mother". These matters were a "source of her chronic stress, which contributed to her depression and anxiety". Dr Apler noted that pain "although mentioned, does not figure in Mr Turmanis' notes as a major source of her stress". Dr Apler concluded that stress in her relationships became a more dominant factor affecting her mental health in 2013 and 2014.
8. Dr Klug stated in the conclave report that his opinion was unchanged from that which he had expressed in his report of 3 September 2013. Namely that "there is a clear clinical and temporal relationship between the injury and its consequences and Ms Schneider's chronic major depressive disorder with anxiety symptoms".
9. In view of my finding that the plaintiff has suffered only a temporary aggravation of her symptoms of pain as a result of the accident, lasting about two weeks, I am not satisfied that her psychiatric condition has been exacerbated by that cause or that the apparently severe development of her underlying psychiatric disorders, which was the subject of her consultations with Mr Turmanis from mid-2013, can be attributed to the accident to any extent.

Damages

1. As I have found that none of the defendants is liable to the plaintiff in damages, it is not necessary for me to make an assessment. Although I have proceeded to make findings on causation of injury, I do not consider it necessary or practical also to make an assessment of damages for the sake of completeness. If I am wrong with respect to liability and if one or more of the defendants is in law liable to compensate the plaintiff for such damages as have been sustained through the limited injury which I have found to have been caused by her trip on 12 August 2008, then those damages, on my findings as to causation, would be very small indeed. Assessment of them would be a simple exercise. The evidence does not disclose that the plaintiff lost any earnings during the brief period following 12 August 2008 in which I have found that her pain and other symptoms are likely to have been aggravated.
2. If my conclusions with respect to both liability and causation are in error, then the assessment of damages which would be required would turn upon substituted conclusions with respect to the extent of damage caused. I cannot usefully anticipate the possible alternative findings which might be made and which would dictate one of a range of possible alternative assessments.

Orders

1. In accordance with these reason, the judgment and order of the Court in proceedings No. 2011/260408 are: 1. Judgment for the defendants against the plaintiff. 2. Each of the first to seventh cross-claims is dismissed.
2. I will hear the parties as to costs when they have had an opportunity to consider these reasons. Subject to submissions and, perhaps, further evidence directed to the question of costs, prima facie the plaintiff should pay the defendants' costs of the proceedings on her amended statement of claim. There may have been no significant additional costs for any defendant of the cross-claims between the defendants. Office & Industrial would likely be entitled to its costs of defending the Sixth Cross-Claim.
3. In proceeding No. 2010/411126 the judgment of the Court is: 1. Judgment for the defendant.
4. Again, I will hear the parties as to costs. I am presently unaware of any reason why the plaintiff should not pay the defendant's costs.
5. In proceedings No. 2014/308507 the judgment of the Court is: 1. Judgment for the defendants.
6. Prima facie the plaintiff in this action, Office & Industrial, should pay the defendant's costs. I will hear the parties before making any order in that regard.

---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 April 2016