Scott Lawrence v Giang Thanh Liem Nguyen

Accident

1. The Plaintiff's evidence was that, in the morning in question, he awoke at approximately 5:30am and was preparing to go to Manly Hospital for a tuberculosis vaccination which was required as he had, on the previous day, commenced work at Taronga Zoo.
2. At 6am the Plaintiff ascended the stairs from the bottom level of the property to go to the kitchen to make a cup of tea which he placed into a travel mug. He then made his way down the stairs at approximately 6am. The purpose of this was to collect the remainder of items needed in order to ready himself for work. As the Plaintiff approached the bottom of the stairs on his descent, he believed that he was on the bottom step and proceeded to step off from the stairs. He mistook his location and was actually on the step which was second from the bottom. As he stepped out he landed on his left foot occasioning injury. His evidence was that he did not hold the bannister with his left hand but he held his beverage in his right hand.
3. The stairs which he navigated had two sources of potential illumination. One was a candelabra light which the Plaintiff claimed was not working. A photograph of it was Exhibit B in the proceedings and its location can be seen in photos 3 and 4 of Exhibit 6. The evidence was that the photo of Exhibit B was taken the day after the accident. The evidence disclosed that the candelabra could only be turned on upstairs, at a location to the left hand side of the front door. This switch is shown in figure 5 of Exhibit G. The Plaintiff gave evidence that he did not attempt to switch this light on. He stated that it was not working and, had he turned it on, there was no way that it could be turned off at the bottom of the stairs even if it were working, as there was not a two way switch. The Defendant acknowledged that this light had, at times, only one light globe active. He stated that he had more light globes in the candelabra in the past; however, it was too bright. He was not aware that the light was not working, stating that if it were out that he would change it straight away as it was not a big job.
4. In addition to the candelabra light, the evidence disclosed some down lights in the area at the bottom level that could be activated by two switches on a light panel, the location of which was marked in Exhibit 2 with a pink circle. The lights were activated in two sets; one which the Defendant claimed would illuminate two to three lights while the other would illuminate four to five lights. The Defendant's evidence was that the lights at the front of the lounge, depicted in photographs 11, 12 and 13, were not operating in order to provide improved television viewing conditions. These lights were not proximate to the staircase. The other lights, which were closest to the stairs, were not activated by the Plaintiff. The Plaintiff's evidence, however, was that two of those lights, which were marked in Exhibit 1 with black pen markings, were not working at the time of the accident. The Defendant denied this and maintained that in any event there were other down lights on the side closest to the stairs, on the left hand side of Exhibit F, which the Plaintiff did not mark and which could have provided illumination had they been activated.
5. The Defendant's evidence was that, if one were to go up the stairs, one would turn on the down lights and they would remain on before one came back down the stairs and could then turn them off. There was evidence of a balloon sensor light at the top of the stairs but the Defendant claimed that this was installed after the accident. There was also a sensor light installed at the base of the stairs, although this was also installed after the accident. The Defendant stated that he did this to accommodate situations where persons were too lazy to turn lights on. At the time of the accident there was also a sensor light adjacent to the kitchen. This light was not activated and in any event because of its position, could not have illuminated the area where the Plaintiff miss stepped.
6. The Plaintiff's contention was that he did not turn on the lights at the base of the stairs for effectively three reasons. First, it was claimed as noted above, that some lights in the immediate vicinity were not functioning. It was submitted that, bearing in mind the operative lights on the occasion, any or sufficient illumination could not have been provided at the base of the stairs. Secondly, it was claimed that any illumination (to the extent available) would have disturbed the person who was sleeping on the sofa in the downstairs living area. Thirdly, it was claimed that the Defendant had instructed against turning lights on and leaving a room.
7. In the Defendant's case, Mr Gavin Windsor was subpoenaed to give evidence. He was an occupant at the subject property between January 2013 and September/October 2013. His evidence was that, from time to time, he used the internal stairs and activated the light switch downstairs, to the left hand side, when ascending the stairs. In activating that light switch, his evidence was that the lights came on. He stated that the living room was downstairs and the stair case was adequately illuminated. He did not recall an occasion when the downstairs lights failed during his stay. He stated that there was a candelabra light upstairs and there was a switch near the front door. In the period in which he used that switch, he stated that the lights then came on. He did not recall an occasion when the lights did not come on. He stated that he was a resident at the property on the day that the Plaintiff occasioned his fall although he did not witness it. He did have a conversation with the Plaintiff subsequent to the accident but not in any great detail. He stated that while he lived at the premises, he regularly saw Mr Nguyen carry out maintenance duties including mowing, cleaning the upstairs kitchen and ensuring overall cleanliness. He also recharged solar lights, taking the sensor panels and placing them in the sun. Mr Windsor did not recall the Defendant checking the light switch, however, he recalled that, on an occasion when the light globe blew in his room, the Defendant changed that light.
8. Overall Mr Windsor did not give any evidence indicating shortcomings with the lighting at the premises. This is the case notwithstanding that the Defendant conceded that he took lights out in the living room to make viewing television more comfortable, took some heat lights out of the bathroom because of energy consumption and took some globes out of the candelabra because it was too bright. While he did not recall an event when the light switches did fail to activate the lights, Mr Windsor stated that, at the very least, if the Plaintiff activated all switches that some of the lights would come on.

Standard of Illumination

1. One of the issues which emerged in this case was the relevant standard of illumination required over the subject staircase. The Plaintiff's expert report of Mr Fogg, which was Exhibit G, expressed the view that the subject premises was a class 3 type of building, being:- "A residential building which is a common place of long term or transient living of a number of unrelated persons."
2. In these circumstances, Mr Fogg drew attention to the fact that clause F4.4 of the Building Code of Australia ('BCA') for class 3 buildings stated that:- "Artificial light must be provided for class 3 buildings to all rooms which are frequently occupied, all spaces are required to be accessible and all corridors, internal stairways, other circulation paths of egress and states that artificial lighting must comply with the Australian Standard AS 1680 Interior Lighting."
3. Dr John Cooke, consultant architect, was engaged on behalf of the Defendant and his report was Exhibit 6 in the proceedings. Dr Cooke stated that, in his opinion, based on his instructions, the subject property had not been converted to a class 3 building under the BCA, however, noted that this was a matter for legal submissions. At [29] of his report, dated 17 February 2015, Dr Cooke opines as follows:- "If the BCA applies, the minimum level of luminance for buildings is 20 lux, by reference to BCA cl. 4.4(b) which requires compliance with AS/NZS 1680.0 (Appendix B). Cl. 6.1 of AS/NZS 1680.0:1998 Interior Lighting Part 0: Safe Movement recommends a minimum of 20 lux (Appendix C)."
4. It seems that, at least in part, the justification for that level of luminance was to provide lighting suitable for those persons with partial sighting. This is detailed in Annexure A to Dr Cooke's report.
5. In case of emergency, Dr Cooke at [30] stated as follows:- "In the case of an emergency (when normal stair lighting is extinguished) BCA cl. E4.4 (see Appendix B) requires compliance with AS/NZS 2293.1:1998 Emergency Evacuation Lighting In Buildings Part 1: Design and Installation, which specifies a minimum of 1.0 lux (cl. 5.5.3 Appendix D)."
6. Dr Cooke then concludes at [31]-[33] as follows:- "31. A level of 1.0 lux is sufficient for stair users in an emergency when they have commenced descent of a stair or are entering a stairwell to escape in an emergency. 32. I have not made any measurements of lighting levels after dark. However, in my opinion, the level of illuminance would have been far in excess of 1.0 lux and therefore sufficient for the stair to have been used without risk to safety. All that was required was for the plaintiff to have turned on the stair light and/or the lower level lights near the base of the stair, using the switches provided. 33. Mr Fogg has not made any measurements of lighting levels or any visual appraisal of the level of illuminance provided by the lighting that was available to the plaintiff at the time of the incident, if he had turned on some of the lights. Mr Fogg's opinion that there was a breach of the lighting provisions in the BCA is based on instructions from the plaintiff (page 14) and his inspection in daylight. Those instructions are not reliable, based on my instructions and inspection."
7. In Francis v Lewis, [1] Mason P (with whom Tobias JA agreed) made favourable reference to the following comments of Wood CJ at in Lanza v Codemo:- "169 Mere compliance with a Standard, or even with common practice, does not solely or even primarily determine whether negligence exists or not: Florida Hotels v Mayo [1965] HCA 26; (1965) 113 CLR 588 at 593; Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 487; Mercer v Commissioner for Road Transport & Tramways [1936] HCA 71; (1936) 56 CLR 580 at 589. Evidence as to practice, or as to the existence of a Standard remains relevant, and it may help in determining what proper care and skill requires to be done in a particular context. However, in the end it is for the Court to adjudicate upon what is the appropriate standard of care: Ainsworth v Levi NSWCA 30 August 1995 unreported; Shead v Hooley [2000] NSWCA 362; and The Council of the Shire of Muswellbrook v Lettice [2000] NSWCA 359." [2]

Findings

1. I am satisfied that the Defendant acted to conserve electricity wherever he could and Mr Windsor's observations are not comprehensive as to the state of the lighting generally. [3] Nevertheless, Mr Windsor did live at the property at the time and, bearing in mind the significance of the stairs to daily use of the premises, I am satisfied that if the lights offering illumination to the stairs were not operative or did not provided any or sufficient illumination he would have noticed and brought it to the Defendant's attention. His evidence was that when lights in his room needed replacement, he asked the Defendant who would attend to it. The Defendant also confirmed that he resided in the property from time to time and visited the property on a regular basis. Despite the shortcomings referred to overall on the evidence of Mr Windsor and the Defendant I am not satisfied that the lights capable of illuminating the staircase in question were not working at the time of the accident. I accept that the only complaint made by the Plaintiff about the premises was after the subject accident by text message when a dispute arose in relation to payment of rent. The precise details of this complaint were not disclosed in evidence. The Plaintiff's evidence indicated that he usually ascended and descended without turning the lights on in the morning.
2. In the circumstances I am satisfied that the Plaintiff descended that stairs in question without turning the lights on and using the hand rail as a matter of choice. The Plaintiff's contention, that he did not turn the lights on because of some instructions from the Defendant, seems to me to be implausible and I do not accept it. The Defendant was not present at the time of the accident. I accept that the Defendant sought to conserve the use of electricity as this was a cost he would ordinarily incur. I do not accept that he gave instructions that extended to requiring tenants (including the Plaintiff) to walk around in darkness on the staircase in question.
3. At its highest, the Plaintiff's case is that the candelabra light was not working and two of the down lights to the right of the stairs were not working. However, Exhibit F indicates a number of other lights in the vicinity of the stairs which he did not assert were not functioning. Dr Cook's evidence was that the lighting was adequate in the circumstances. The level of illumination coming from those lights, on the occasion in question, was non-existent because of the fact that the light switch had not been activated. In this regard it appears to me that Dr Cooke's contention at [33] of Exhibit 6 has force.
4. There was only one practical way of illuminating the stairs in question in the circumstances that the Plaintiff was presented with and that was to activate the downstairs switch on ascent and turn it off after decent. Bearing in mind that there were two switches to the downstairs lights it is not clear to me to what extent activating the switch controlling the lights covering the stairs would have disturbed the person sleeping on the couch although the Defendant conceded that it would.
5. On p 8 of Exhibit G, Mr Fogg reports, in relation to the lighting in the downstairs lounge area at the time of the accident:- "The Plaintiff stated that while the lights towards the rear of the lounge were on, they only provided a low level of light."
6. It is not clear whether this referred to the state of the lighting at the time of the accident, however, these were not lights near the stairs.

Duty of Care

1. The Defendant concedes that he owed a duty of care to the Plaintiff and that the correct exposition of that duty was as set out in Jones v Bartlett [4] . In that case, Gummow and Hayne JJ said at [171]:- "… The relationship between landlord and tenant is so close and direct that the landlord is obliged to take reasonable care that the tenant not suffer injury. In considering the degree of care which must be taken, and the means by which a tenant may be injured, must be borne in mind, as already discussed, that ordinarily the landlord will surrender occupation to the tenant. Thus, the content of any duty is likely to be less than that owed by an owner-occupier who retains the ability to direct what is to be done, upon and with the premises. Broadly, the content of the landlord's duty to the tenant will be conterminous with a requirement that the premises be reasonably fit for the purposes for which they are let, namely, habitation as a domestic residence."
2. Then at [174], Their Honours stated:- ".What constitutes the taking of reasonable steps will, as Dawson J noted in Northern Sandblasting, depend on all the circumstances of the case. What is reasonable for premises let for the purpose of residential housing may be less demanding than for premises let for such purposes as the running of a school, or the conduct of a hotel or club serving liquor. Moreover, the reasonableness of steps to be taken will be affected by the terms of the lease, including the level at which the rental is pitched, the obligations the parties allocated inter se and any specification of limited purposes to which the premises be put. It will also be affected by the terms of any applicable statutes, such as residential tenancy statutes. In some jurisdictions, there may be statutory requirements which supplant any common law duty or which impose a higher duty than the common law."
3. The Plaintiff has submitted that the duty upon the Defendant was higher than that specified in Jones v Bartlett. In this respect the Plaintiff relies upon the decision of the High Court in Calin v Greater Union Organisation Pty Limited [5] . Specifically the Plaintiff draws attention to [9] where the Court referred to the position where an occupier of a premises agrees, for reward, to allow persons to enter that premises for some purpose, the occupier impliedly warrants that the premises are safe for that purpose to the extent that exercising reasonable skill and care can make them so. Drawing an analogy to that case, the Plaintiff submitted that, as the Plaintiff's arrangements with the Defendant were contractual involving payment as reward, the Plaintiff is entitled to a higher duty of care, being:- "A duty to the Plaintiff to make the premises as safe as reasonable care and skill can make them." [6]
4. The concept of a higher duty was rejected by the High Court in Jones v Bartlett (supra). [7] At [92] Gaudron J specifically stated:- "...As the occupier of premises is only required to take such care as is reasonable in the circumstances, a landlord should not be subjected to a higher duty to make premises as safe for residential use as reasonable care and skill on the part of anyone can make them. And given that the parties to a tenancy can stipulate as to its terms, there is no reason, in my view, why the duty of landlord should extend beyond a duty to put and keep the premises in safe repair."
5. There was no evidence as to the full written terms of the tenancy in this case. In my view, the duty of care owed by the Defendant to the Plaintiff was analogous to that described by Macfarlan JA (with whom Tobias JA and Hanley AJA agreed) in Laresu Pty Ltd v Clark. At [38]-[39] His Honour stated:- "In these circumstances the Owner owed to Mr Clark a duty to take reasonable care to avoid a foreseeable risk of injury to him (Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1986-1987) 162 CLR 479 at 488). The extent of the obligation of an occupier is that of an occupier exercising reasonable care to prevent injury to an entrant "using reasonable care on his part for his own safety" (Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; (2007) 234 CLR 330 at 345 - 346 [45] quoting Indermaur v Dames (1866) LR 1 CP 274 at 288). As indicated in the plurality judgment in Thompson v Woolworths (Q'Land) Pty Ltd [2005] HCA 19; (2005) 221 CLR 234, "the weight to be given to an expectation that the other [person] will exercise reasonable care for his or her own safety is a matter of factual judgment. It may depend on the circumstances of the case" (at [35]). The Owner submitted that the primary judge made the error identified in RTA v Dederer (at [49] - [51]) of treating the relevant duty as effectively a strict one "to prevent harm occurring" to Mr Clark as distinct from one to exercise reasonable care to avoid a foreseeable risk of injury to Mr Clark. There is no clear statement of the relevant duty of care in his Honour's judgment but, reading the judgment as a whole, it seems to me that he was correctly treating the Owner's obligation as one to exercise reasonable care rather than as one of, in effect, strict liability."

Breach of Duty

1. To establish a breach of the duty of care that the Defendant owed to the Plaintiff it is necessary to demonstrate that the three preconditions set out in s 5B(1) of the Civil Liability Act 2002 (NSW) ('2002 Act') have been met. S 5B of the 2002 Act reads as follows:- "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm."
2. I will consider the three requirements of s 5B in turn. Bearing in mind my findings, I consider that the risk of harm is the risk of the Plaintiff occasioning a misstep by whilst navigating the stairs in darkness.

Foreseeability of Risk (s 5B (1) (a))

1. On p 15 of Exhibit G, being the report of Mr Robert Fogg, consultant engineer, from Total Risk Solutions Pty Ltd, it is stated:- "Based on the information made available to me, and confirmed in my on-site inspection, I am of the opinion that the absence of suitable lighting was the primary causation of the Plaintiff's accident. The Plaintiff failed to distinguish between the bottom step and the floor level at this location as he descended the stairs. I also advise that had effective delineation of the step edges been installed in the form of a non-slip strip this may have assisted the plaintiff in deterring the height differential under the conditions as described to me. I consider that the risk of injury in these circumstances would have been reasonably foreseeable and that eventually a user of the stairs, such as the Plaintiff, would suffer injury under the conditions as described. I make this statement solely based on the information made available to me."
2. Dr John Cooke, consultant architect, in his report dated 17 February 2015 relevantly states at [37]-[38]:- "On page 15, Mr Fogg discusses foreseeability and reasonable means of removing or reducing the risk of injury. My opinion is that the defendant provided any appropriate stair and appropriate lighting. It was up to the plaintiff to assess whether or not there was sufficient lighting from daylight or other sources for him to use the stair without risk of a fall; and it was up to him to turn on the available lighting if he decided that was necessary." On the basis of my instructions and observations, my opinion is that the type of fall sustained by the plaintiff was not an event that could have been prevented by the defendant's actions. Accordingly, it was not a foreseeable occurrence over which the defendant had any control."
3. I accept that, based on Mr Fogg's report, it is foreseeable that a person who may misstep in darkness and occasion injury in the way that the Plaintiff claims that he did.

Whether the Risk was "not Insignificant" (s 5B (1) (b))

1. I accept that the risk in the circumstances of this case was "not insignificant" in light of what was said by Macfarlan JA in Laresu Pty Ltd v Clarke [8] where, he stated:- "Again, the primary judge did not make a clear finding on this point. However, my view is that the foreseeable risk here was "not insignificant". As stated by Heydon JA (as he then was) in Wilkinson v Law Courts Ltd [2001] NSWCA 196 "[s]tairs are inherently, but obviously, dangerous" (at [32]). Where, as here, the stairs are internal ones that are not lit at times that it should be expected that persons may use them (see [21] - [22] above), the risk of someone missing a step in the dark and falling must in my view be regarded as a "not insignificant" one. The danger resulting from the absence of lighting of steps was recognised by this Court in Penrith Rugby League Club Ltd trading as Cardiff Panthers v Elliot [2009] NSWCA 247 (see [25]) and Stojan (No 9) Pty Ltd v Kenway [2009] NSWCA 364 (see [129], [133])."

In the Circumstances, a Reasonable Person in the Person's Position would have taken those Precautions (s 5B(1)(c))

1. In considering this principle it is necessary to have regard to s 5B(2) of the 2002 Act. The evidence in the case disclosed that there had been no previous accident on these stairs, notwithstanding that a number of tenants who lived in the premises would have used that facility in order to access the kitchen at times when there was insufficient natural light. This suggests that "the probability that the harm would occur if care were not taken" (s 5B(2)(a)) was low, even though it was "not insignificant." On the other hand, however, if an accident did occur there was a prospect that it would result in someone who was descending on the stairs missing a step with his or her foot before grasping, or attempting to grasp, the handrail that the person would fall down with substantial risk of serious injury being suffered (s 5B(2)(b)). [9]
2. The Plaintiff has contended that the actions which could have been taken were:- 1. Refraining from removing two of the three light bulbs from the candelabra; 2. Replacing the faulty globe in the candelabra; 3. Directing light onto the stairs themselves rather than relying on ambient light from the rooms at the top and bottom of the stairs; 4. Not pressing tenants to restrict their usage of electricity; 5. Installing three-way light switches at the top and bottom of the staircase; and 6. Proactively inspecting the lights to insure that they were fully functioning rather than simply reacting to tenants' complaints.
3. In the report of Mr Fogg, which was Exhibit G in the proceedings, at p 16, a number of factors were identified in the nature of precautions in order to avoid the risk of harm. These included the installation of high-visibility, non-slip nosings along the edge of each step for the purpose of providing clear delineation of each step to a lower level. This, however, was not advanced at the hearing by the Plaintiff.
4. I accept that, following the accident, the Defendant did install sensor lights at various locations near the stairs to provide movement based illumination. Pursuant to s 5C(c) of the 2002 Act this cannot be considered as evidence of a failure to exercise reasonable care although it may be evidence of the practicability of taking such action. [10]
5. I am satisfied that the burden of taking action of the kind described by the Plaintiff was not significant in the circumstances of the subject accident, resulting in serious injury to the Plaintiff. I also accept the views expressed at [58] in Laresu Pty Ltd v Clark relating to the social utility of the activity that creates the risk of harm.
6. The duty of care however is not a duty to prevent harm. [11] It is a duty to take reasonable care on the basis of a person "using reasonable care, on their part, for their own safety." [12] In Francis v Lewis Mason P (with whom Tobias AJA agreed) stated: "40… The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Limited v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]). 41 In recent years, this Court has emphasised that no stairs are perfectly safe and that it is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action (see Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at[12], North Sydney Council v Plater [2002] NSWCA 225 at [43]- [44], Owners Strata Plan 30889 v Perrine [2002] NSWCA 324). In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe AJA agreed, said at [32]: 'Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: "persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety": Stannus v Graham [1994] HCA 46;(1994) Aust Torts Reports 81-297 at 61,566 per Handley JA.'" [13]
7. In my view, the risk of miss stepping on the steps in darkness was one which should have been obvious to someone in the position of the Plaintiff. I am not satisfied that that there was inadequate lighting available on the occasion in question in the vicinity of the stairs. Many of the precautions which have been identified earlier were prefaced on the basis that the Plaintiff was unable to facilitate any illumination of the subject staircase. I have found otherwise. The Plaintiff has in my view failed to establish inadequate illumination. Whilst the Defendant did have arrangements with tenants regarding electricity usage as stated earlier I do not accept that this extended to not illuminating the stairs when traversing in darkness. The risk of injury was open to the Plaintiff to avoid by turning on the lights when he ascended and turning them off when he descended by use of the downstairs switch. The facts of this case are not analogous to those in Frances v Lewis. [14] The state of darkness into which the Plaintiff ascended and descended was as a consequence of his own actions. He came down the stairs carrying a beverage and without using the handrail. Whilst using the handrail may not have been sufficient to prevent the injury, his failure to illuminate the stairs was.
8. I do not consider that the Defendant's duty to take reasonable care extended to taking precautions in circumstances where a tenant declined to activate the functioning downstairs lights in preference to interfering with the comfort of another tenant sleeping on the sofa as opposed to taking reasonable care for his own safety.
9. Consistent with the application of the calculus, referred to by Mason J in Wyong Shire Council v Shirt, [15] as expressed in s 5B (2) of the 2002 Act, I am not satisfied that a reasonable person in the Defendant's position would have taken the precautions proposed by the Plaintiff against the risk of harm. In particular I note the contents of the report of Dr Cooke at [39]-[40], where he states:- "My comments on Mr Fogg's Suggestions for preventative measures on page 16 are as follows: A two way switch is note necessary. The plaintiff could have turned on the lights at the base of the stair before ascending the stair and/or could have turned on the stair light before descending the stair. My instructions are that the stair light was functioning. In addition, the lights in the lower level ceiling near the base of the stair were functioning. The plaintiff could have avoided missing the bottom step if he had used some of the available lights."
10. Accordingly, there must be a verdict for the Defendant.
11. This is sufficient to dispose of the case. However, I note that in the event I am wrong neither party submitted that in the event that breach was established, causation would not be established pursuant to the principles in s 5D of the 2002 Act.

Damages

1. In considering the question of damages, the Plaintiff's pre-accident history included, according to the report of Dr Champion of 18 March 2014, a work-related injury to the left knee. There was no left foot disorder and no treatment for the left knee for a considerable period before the accident. The Plaintiff had injuries to the right thumb and abdominal bleeding, concussion and soft tissue injuries from a car accident as a teenager. Neither party suggested that anything significant flowed from the Plaintiff's pre-accident history.
2. Following the accident, the Plaintiff drove himself to Manly Hospital on 28 September 2013, where he presented with pain in his left lower-limb and hip, particularly the left foot. He has complained of difficulty walking since. The attending doctor noted tenderness and swelling over the fifth metatarsal head. The Plaintiff received an x-ray. This revealed an oblique fracture of the distal shaft of the fifth metatarsal with slight separation and angulation and minor commutation. The Plaintiff was provided with Panadol and Nurofen and referred for Physiotherapy review. Thereafter he was provided with crutches as well as a Can-Boot. He was referred to his general practitioner for further care.
3. The Plaintiff commenced a new job the day before the accident on 27 May 2013. At the time of the accident, he was to attend Manly Hospital in any event for a tuberculosis vaccination.
4. As a consequence of his injuries, he remained off work until 14 June 2013. He had been paid 5 days sick leave from 28 May 2013 to 3 June 2013 before going on sick leave without pay.
5. On 14 June 2013, the Plaintiff came under the care of his general practitioner, Dr Wee-Kiat Soh, and returned in a sedentary capacity, mainly working in the office on a computer.
6. Approximately one month after the fracture, the Plaintiff became aware of pain in his left calf. This led to investigations of Deep Vein Thrombosis. Apparently on 28 June 2013 Dr Dyer reported that there was a 9 centimetre segment of occlusive thrombus in the left lateral gastrocnemius vein, extending from 19 centimetres to 10 centimetres below the knee crease.
7. Dr Chan saw the Plaintiff at the request of his solicitors on 18 March 2014. He was of the opinion that, in light of the fact that earlier thrombosis associated with the left calf had cleared, the evidence pointed to the probability that the venus thrombosis on this occasion had occurred acutely as a complication of the Plaintiff's left foot injury.
8. Dr Powell, who examined the Plaintiff on behalf of the Defendant on 24 November 2014, opined in his report (Exhibit 7):- "The left DVT represents a recurrent problem, having suffered a similar condition after the ACL surgery in 2010. Immobilisation does not represent a risk factor and I would consider that the subsequent development of DVT is directly related to the injury involving the left foot."
9. Dr Champion noted that, following the DVT, the Plaintiff had Clexane injections for anti-coagulation for a couple of weeks and then went on oral Warfaron for six months. He reported that progress ultra-sonagraphy, by Dr Truong on 30 October 2013, showed an interval resolution of the gastrocnemius thrombosis with no evidence of left lower-limb thrombosis.
10. Dr Soh then referred the Plaintiff to an orthopaedic surgeon, Dr Carmody. He arranged for an x-ray referral to a Dr Truong, whose radiographs were dated 20 August 2013, who noted that the fracture union was incomplete. Dr Carmody advised a further month of non-weight bearing and then to upgrade to one crutch (right arm), making a gradual return to weight-bearing.
11. It appears that in late September and October 2013, the Plaintiff was considered fit to commence his horticultural work and normal duties at Taronga Zoo. As he was still on anti-coagulants, he performed light duties such as weeding, watering and planting.
12. In November 2013, he came off anti-coagulants and was upgraded to unrestricted duties and full hours.
13. When seen by Dr Champion on 18 March 2014, he noted that in recent months the soreness of the left lateral fore foot continued without resolution. He noted that Dr Carmody was not in favour of internal fixation of the fracture. Dr Champion noted that Dr Carmody felt that the Plaintiff could continue to work. He noted emotional reaction, being a sense of disappointment with frustration. He was wary of running due to the pain it caused the foot. Otherwise, he noted that the Plaintiff was not taking any medication and had gained weight since the accident.
14. The Plaintiff's pain is described by Dr Champion as a "dull, burning, aching feeling." He noted no overt abnormality and gait within normal limits. He noted that, subjectively, the Plaintiff was tending to bear more weight medially in the left foot. As a result of the abnormal pattern of pressure on the base of his left toes, he has minor but obvious bunion bursitis. Dr Champion also noted that the Plaintiff continues to experience discomfort and pain in the left foot, laterally, especially after a day of work or if he were to walk further than usual and especially if he were to run. Dr Champion concludes that there is a reasonable long term prognosis, the Plaintiff is fit for normal duties, however, may require time for management of his condition.
15. Dr Champion stated that the Plaintiff's left foot would probably not return to normal comfort and function but should see him through a normal working life in his occupation as a horticulturalist or a similar job.
16. Dr Maniam, whose letterhead shows that he performs shoulder and knee arthroscopic surgery, examined the Plaintiff on the 12 December 2014. He noted that the Plaintiff complained of pain after long periods of walking, running, climbing or work. He noted in Exhibit K:- "His fracture is well healed and there are only minor deformities. The movements in all joints were satisfactory, except in his left metatarsal phalangeal joint. There appears to be a chronic synovitis which will be the forerunner to the development of traumatic arthritis."
17. Dr Maniam stated that the Plaintiff was capable of continuing his current role with only minimal complaints after using his foot for the whole of the day. He stated that the Plaintiff was capable of working until retirement age.
18. In his report of 30 April 2014, Dr Maniam further finds a loss of 10% of efficient use of the left leg at or below the knee.
19. Dr Powell noted the Plaintiff had a 5% estimated loss of efficient use of the left leg at or below the knee. He noted the following in terms of prognosis:- "Mr Lawrence's overall prognosis is excellent. The fracture has clinically united. He has regained normal function in the left foot and demonstrated an ability to continue to perform his pre-injury duties. His left foot may continue to represent a source of intermittent symptoms in the future. Clinically he was also noted to have some lateral ligament laxity and this may become an issue in the future.
20. Later, in his report, Dr Powell stated:- "I would not anticipate the need for future surgery in relation to his left foot fracture. Clinically he has evidence of some lateral ligament instability and should this become symptomatic and fail to respond to conservative treatment approach, then surgery may be an option."
21. This appears to have accorded with the view of Dr Champion, contained at p 16 of Exhibit J.
22. Considering non-economic loss, the Plaintiff has had a period of treatment which has included treatment for the fracture and thrombosis. He was non-weight bearing for a period of time, during which he was on crutches and in a Can-Boot. He was required to take anti-coagulants before returning to full-duties in November 2013. He is now wary of running but experiences pain and discomfort in his left foot.
23. In evidence before me, the Plaintiff stated that his left foot was weaker than his right; he particularly experiences pain when he is on a slope or if he extends himself. Otherwise, he is not in receipt of any active treatment.
24. The Plaintiff says that he is entitled to non-economic loss based on 30% of the most extreme case. The Defendant asserts that the Plaintiff does not meet the threshold. The determination is to be made pursuant to s 3 of the 2002 Act not the estimated loss of effectiveness of the left leg. In my view, this case falls into the category of being 15% of the most extreme case and accordingly I would propose the sum of $5,500.00.
25. Insofar as treatment is concerned, I do not accept Dr Maniam's analysis of 2 general practitioner visits per month, nor Dr Champion's view on orthopaedic care. I accept that the Plaintiff may benefit from the care of a podiatrist and occasional analgesic medication. Both Dr Champion and Dr Powell express the view that it is unlikely that the Plaintiff will require surgery but cannot rule out the possibility. [16] No quantification has been provided of the cost in the evidence. Nevertheless a small allowance should be made for the possibility consistent with Malec v J.C. Hutton Pty Ltd. [17] Dr Champion has suggested the purchase of orthotic boots but there was no evidence that the Plaintiff would necessarily wear these. Bearing in mind all the factors and making some small allowance for the future, I would propose a buffer of $5,000.00.
26. Regarding economic loss, the Plaintiff claims two weeks at $700.00 plus past superannuation on this amount. The claim for two weeks is, in my view, well supported by Exhibit H and I would allow a sum of $1,400.00. I would further allow superannuation on the past at 11% being $154.00.
27. The evidence overall does not support that the Plaintiff will suffer a loss of earning capacity as a consequence of his injuries. Dr Champion in particular states that the Plaintiff should see through a normal working life in his active roles as a horticulturalist or similar job. [18] Dr Maniam describes minimum constraints at the end of the working day and a capability of working through to retirement. [19] Dr Powell describes the Plaintiff is fit to pursue all forms of employment. [20] Accordingly I decline to make an award under this head.
28. Dr Maniam proposes four hours of domestic assistance. It is not clear what Dr Maniam's qualifications are to make such an assertion, which is incidentally not supported by the balance of the evidence. Consistent with the approach taken by Basten JA in Boral Bricks v Cosmidis, [21] I give no weight to Dr Maniam's opinion and I would have declined to make an award under this head.
29. Accordingly, the damages which I would have awarded in this case, had the Plaintiff succeeded, would have been in the sum of $12,054.00.

Orders

1. For these reasons there will be a verdict for the Defendant.
2. I order the Plaintiff to pay the Defendant's costs.
3. I grant liberty to the parties to relist the matter in respect of any other costs orders that may be sought within 14 days.
4. The exhibits are to be retained for 28 days.

Endnotes

1. [2003] NSWCA 152 at [43]
2. [2001]NSWSC 845 at [169]
3. See [15] herein
4. (2000) 205 CLR 166
5. (1991) 173 CLR 33
6. See Plaintiff's submissions at [4]-[5]
7. See Gleeson CJ at [57]; Gaudron J at [90]-[93]; Kirby J at [252]-[253]
8. [2010] NSWCA 180 at [48]
9. (supra) at [54]
10. Roads and Traffic Authority (NSW) v Refrigerated Roadways Pty Ltd (2009) 77 NSWLR 360 at [297]
11. Sullivan v Moody (2001) 207 CLR 562
12. Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
13. Francis v Lewis [2003] NSWCA 152 at [40]-[41]
14. [2003] NSWCA 152 at [53]-[54]
15. (1980) 146 CLR 40 at [47]-[48]
16. Exhibit J, p 16 and Exhibit 7, p 6
17. (1990) 169 CLR 638
18. Exhibit J, p 16
19. Exhibit J, p 20
20. Exhibit 7, p 6
21. [2013] NSWCA 443 at [93] 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: 27 April 2015