Cartwright v Villamoss Pty Ltd

[2007] NSWDC 152

CITATION:	Cartwright v Villamoss Pty Ltd & Anor [2007] NSWDC 152
HEARING DATE(S):	25 June 2007, 26 June 2007, 27 June 2007, 28 June 2007, 29 June 2007, 2 July 2007 and 3 July 2007
JUDGMENT DATE:	3 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	Hungerford ADCJ
DECISION:	Verdict for plaintiff against first and second defendants in amount of $446,085.50. As to the cross-claims, first defendant entitled to contribution from second defendant in amount of $133,825.65 and second defendant entitled to contribution from first defendant in amount of $312,259.85. Parties to be heard on costs.
CATCHWORDS:	NEGLIGENCE - Personal injury - Leased residential premises - Injury to tenant - Accident on common passageway in home unit complex - Fall on a single step - Occupier's liability - Whether implied term in lease as to non-delegable duty of care owed by landlord to ensure safety of premises - Liability of architect/designer of premises - Contributory negligence of tenant - Apportionment of responsibility as between landlord and architect/designer - Damages - Contribution between defendants
LEGISLATION CITED:	Civil Liability Act 2002, ss 15(3) and 16(2) Law Reform (Miscellaneous Provisions) Act 1946, ss 5(1)(c) and 5(2)
CASES CITED:	Ahluwalia v Robinson [2003] NSWCA 175 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 Boral Transport Ltd v Whitehead [2001] NSWCA 395 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 Francis v Cockrell (1870) LR 5 QB 501 Francis v Lewis [2003] NSWCA 152 Griffith v Kerkemeyer (1977) 139 CLR 161 Jones v Bartlett (2000) 205 CLR 166 Maclenan v Segar [1917] 2 KB 325 New South Wales Department of Housing v Hume [2007] NSWCA 69 North Sydney Council v Plater [2002] NSWCA 225 Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 O'Meara v Domincan Fathers [2003] ACTCA 24 Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 Roads and Traffic Authority v McGregor [2005] NSWCA 388 Sheridan v Borgmeyer [2006] NSWCA 201 Vairy v Wyong Shire Council (2005) 223 CLR 422 Van Gervan v Fenton (1992) 175 CLR 327 Watson v George (1953) 89 CLR 409 Wilkinson v Law Courts Ltd [2001] NSWCA 196 Woolworths Ltd v Lawlor [2004] NSWCA 209
PARTIES:	Sandra Cartwright - Plaintiff Villamoss Pty Limited - First Defendant/Cross-Claimant on Second Cross-Claim/Cross-Defendant on First Cross-Claim Lino Mark Querin - Second Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim
FILE NUMBER(S):	Matter No 5264 of 2005
COUNSEL:	Mr DT Kennedy SC and Mr CJ Callaway (Plaintiff) Mr RJ Cheney (First Defendant/Cross-Claimant on Second Cross-Claim/Cross-Defendant on First Cross Claim) Mr IGB Roberts (Second Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim)
SOLICITORS:	Owen Hodge Lawyers (Plaintiff) DLA Phillips Fox (First Defendant/Cross-Claimant on Second Cross-Claim/Cross-Defendant on First Cross Claim) Kennedys (Second Defendant/Cross-Claimant on First Cross-Claim/Cross-Defendant on Second Cross-Claim)

JUDGMENT

1 A social lunch followed by a celebration with friends at a home unit at Abbotsford recently occupied by the plaintiff with her partner turned sour when she fell on a step in the passageway outside the unit. A severe injury to the right ankle and a twisting injury to the left ankle were sustained by her. The fall occurred as the friends were being farewelled. After surgery to the right ankle, consequent disabilities of a continuing nature were said to have affected the plaintiff’s personal, social and working life.

2 The unit complex was constructed in the year 2000 at 296-298 Great North Road at Abbotsford and on 9 April 2004 the plaintiff and her partner leased Unit 5; they moved into the unit on 14 April 2004. It seems that access to the unit was by a walkway from the front entrance or by an internal car park to the rear door – the plaintiff had used the front entrance on one occasion only while first inspecting the unit with the real estate agent and her practice thereafter was to use the rear entrance from the car park after parking her car. On 18 April 2004 at about 6.30pm, the plaintiff, in the company of four guests and her partner, used the front entrance and as she walked along the passageway just outside the unit she went down on her right ankle at a single step and was injured. The lighting in the area of the fall was described as “dull” or “poor” and it was said that the step was in shadow from the persons present with the colour of the terracotta floor tiles concealing the presence of the step. Those circumstances were alleged to have combined on the instant occasion so as to form a danger or trap for the plaintiff; the absence of a handrail adjacent to the step did not provide any means for her to steady herself. Since the accident, white strips have been placed along the nosing of the step and sensor switches have been installed to automatically activate the lighting on movement.

3 Surgery was performed to the plaintiff’s right ankle early the following morning at Concord Repatriation General Hospital and she was discharged on 23 April 2004. After about two months recuperation at home, a gradual return to work was made but continuing treatment as an out-patient at the hospital was received by the plaintiff, including from the hospital’s Multi-Disciplinary Pain Clinic, but with complications arising from the injuries further procedures were anticipated. Disabilities, not of an insignificant nature, were claimed as affecting the plaintiff’s pre-injury physical condition, lifestyle and working capacity. Damages were sought for non-economic loss, out-of-pocket expenses, domestic assistance or attendant care and economic loss as to future earnings and earning capacity; plus costs.

The claim, defences and cross-claims

4 The plaintiff, Sandra Cartwright, sued Villamoss Pty Limited, the first defendant, who was the owner of the unit complex and who, as such, had the care and control of the premises. The claim against the second defendant, Lino Mark Querin trading as Landstudio Landscape Design, was brought in his capacity as the designer and creator of the architectural plans, designs and drawings upon which the premises comprising the unit complex were constructed. It was alleged both defendants were involved at all material times in the design and construction of the premises. The action was brought in negligence against each defendant as joint tortfeasors for breach of the respective duty of care each owed to the plaintiff to take reasonable care for her safety. By way of defence, contributory negligence was pleaded by each defendant against the plaintiff for failure to take reasonable care for her own safety.

5 An additional count was brought by the plaintiff against the first defendant for breach of contract of an implied term of the lease agreement in that it failed to make the premises as safe for use by the plaintiff as reasonable care and skill on the part of anyone could make them. The first defendant denied the existence of the implied term and that there was any breach of contract.

6 In turn, each of the defendants sued the other by way of cross-claim for contribution and/or indemnity pursuant to s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 for their respective shares as joint tortfeasors of any liability found for the plaintiff.

7 The defendants denied liability and did not admit injury and damages to the plaintiff who herself resisted any contributory negligence; the cross-claims were also in issue on all counts. To the extent any of the claims made were successful, then damages and costs were sought.

8 The provisions of the Civil Liability Act 2002 apply to the determination of this matter.

Plaintiff’s background

9 The plaintiff was born on 6 June 1956 so that at the time of the accident she was age 47 years and age 51 years at the date of trial. On leaving school after completing the Victorian Leaving Certificate in 1973, the plaintiff undertook a receptionist course and undertook employment as a retail shop assistant in 1975 with an eventual promotion to a manager’s role. She was then employed as an accounts manager with various organisations in Melbourne from 1977 to 1999 in which positions she was concerned with customer relations and servicing their requirements. In 1997 the plaintiff and Garrie Lake commenced their relationship and a couple of years later they moved to Sydney. The plaintiff then obtained a sales executive position with a furniture company until she became an account manager from 2000 to 2002 with Spotless Services Pty Limited which was concerned with the supply of industrial uniforms. In August 2000, the plaintiff started employment with her present employer, Aladdin Laundry, as the sales and service manager in the laundering and provision of linen to upmarket restaurants in Sydney and to hospitals and all of the major hotels and motels.

10 The role and duties of the plaintiff, as described by her, were of a relatively important and senior nature with Aladdin Laundry as involving a long and active working day of 10 to 12 hours from about 6 or 6.30am to 7 or 8pm Monday to Friday. She performed office duties, including assisting the service and distribution manager in the despatch of 18 trucks in the early morning with linen for 300 customers, until about 10 or 10.30am when she left the premises by car to call on customers for the remainder of the day. Broadly, she was concerned with customer relations and any complaints they raised, herself delivering some laundry and liaison with the accounts department – it was indeed an active role, requiring walking, standing, driving a motor car and handling linen; and an appropriate disposition with customers and fellow employees was needed. The plaintiff said she enjoyed the work with Aladdin Laundry “absolutely” and got on well with the owner. Her intention was to continue that employment until normal retirement age of 65 years.

11 The arrangements of a domestic nature between the plaintiff and her partner, Mr Lake, were that she performed all of the household duties, including tending the garden in planter boxes, as she said, “I did everything. He would do some washing.” Mr Lake, who was an account manager for a fabric company, said the plaintiff was very much a houseproud person who did 80 to 90 per cent of the domestic chores and he gave general help cleaning toilets and sweeping.

12 In terms of health, the plaintiff did not identify anything of real significance as affecting her, other than earlier problems with her left shoulder and lower back; she had had her gall bladder surgically removed. The left shoulder was fractured in a snow skiing accident in 1986 and although it satisfactorily resolved she experienced pain from time-to-time when lifting at work. As to the lower back, which first became symptomatic in mid-2001, over-exertion now caused some pain for which medication was obtained from her general practitioner on an irregular basis. In any event, those conditions were said by the plaintiff not to affect her “very often at all.”

13 It seemed the plaintiff and Mr Lake enjoyed a quite active sporting, recreational and social life. The plaintiff said she played golf with him, walking the course, once every two weeks and Mr Lake said they had been doing this for some six to eight years. He added that they walked nearly every afternoon, swam and surfed at the beach; he said they “used to go away a lot…holidays, plus weekends.” Mr Lake described the plaintiff’s physical activities and level of energy as “high, she was very active” and who had perhaps “too much” enthusiasm and energy for her work – he did not observe her as having any physical disabilities or problems. Other witnesses in the proceedings, work colleagues and friends, also referred to the plaintiff’s demeanour and energy level. For instance, Ingrid Carolyn King described the plaintiff as having “a high level of energy, a very happy, bubbly person”; Bobbi Schuitemaker considered the plaintiff to be a “very nice person, a good person…fun-loving…very friendly with the customers…gets on very well with all the staff”; Deanna Margaret Dalziel said the plaintiff presented as “bright and bubbly and on the go and just forever running around, go, go”; and Ms Dalziel’s husband, Paul Anthony Dalziel, who had social contact with the plaintiff on a number of occasions, described her as a “very fun loving, life of the party, bubbly character” and who was energetic.

14 The picture of the plaintiff so presented was consistently to the same effect and, I accept, showed a person with a strong work commitment and job satisfaction but who engaged in regular recreational and social activities enabling overall contentment with her life. I discerned no challenge at all to the evidence in this respect.

Circumstances of the accident

15 The plaintiff and Mr Lake were seeking new accommodation and, during a lunch in early-April 2004, noticed an advertisement on the wall of the subject block of units for an apartment to rent. They were able after lunch to contact the owner of the property and thereupon, with the owner, inspected Unit 5 in the premises. They used the front entrance and in proceeding along the walkway to the unit the plaintiff recalled seeing a number of steps which “were all the same colour but didn’t take any more attention.” After inspecting Unit 5, the plaintiff and Mr Lake were happy with it and decided to rent; they left the unit from the front door along the same walkway but the plaintiff did not notice anything about the steps as they did so. A lease was entered into on 9 April 2004 and during the next week they took their belongings to the unit and actually occupied it from about 14 April 2004. In the moving-in process, they used the rear entrance to the unit from the undercover car park and not the front entrance along the walkway.

16 Mr Lake confirmed the events leading to the leasing of the unit, including that he did not take any particular notice of the step situated outside the front door of the unit; he said the inspection was during the daytime and the lighting outside the unit was “very bright” with one side of the walkway open to the outside over the top of planter boxes.

17 On Sunday 18 April 2004, Mr Lake conveyed in his car the plaintiff, Ms Dalziel, Ms King and Ms Schuitemaker to the Sydney Rowing Club at Abbotsford to have lunch at Dedes restaurant. The group of four ladies had lunch during which, as the plaintiff said, they drank one bottle of wine between them over a period of two and a half to three hours followed by a liqueur with the compliments of the restaurant’s owners as they sat around talking. By arrangement, Mr Lake collected the four ladies from the club at about 4.30 or 5pm and drove them to the unit complex to show the unit he and the plaintiff had just moved into; they entered by the car park and used the rear entrance to the unit. Apparently, Mr Lake had prepared some light refreshments and the group socialised with a bottle of wine or champagne. By about 6pm the three visitors were ready to leave and Mr Dalziel arrived to take them home; he used the front entrance to the unit by walking along the passageway. The four guests then departed the unit through the front doorway accompanied by the plaintiff and Mr Lake.

18 The plaintiff said she thought Ms Schuitemaker and Ms King led the group as they departed followed by Mr and Mrs Dalziel and then she and Mr Lake, generally in single file. At the time of leaving, the plaintiff said the lighting in the area outside her unit was “very dark”, although light was coming through the open doorway and through the open doorway of the next-door neighbour’s unit, being Unit 6 occupied by Carol Ann Hogan and her daughter. The plaintiff maintained she was looking where she was going as she proceeded behind the guests, and what then happened was described in this way:

As I came out at the front and then went to go to the second step, I automatically missed the step, fell over and then I landed on the ground near the planter box. Paul (Dalziel) and Garrie (Lake) then picked me up and put me on the planter box.

19 As it happened, Pritesh Karm Sharma was then visiting Ms Hogan’s daughter in Unit 6 next door to the plaintiff’s unit. He was playing chess and facing the open front door of Unit 6 about 10 metres away. On hearing voices outside, he looked up and saw:

…Sandra [the plaintiff] miss a – should I say miss a – she took a step as if she was stepping on the air and missed a step completely and she fell in a very awkward position…the step that happens from Sandra’s apartment down to Carol’s [Ms Hogan’s Unit 6]…she fell on that landing there…I can’t remember the exact foot that Sandra put forward or fell on, but her body was moving forward, I should say towards the right-hand side…She ended up on the landing, as I said, which is in front of the step that she had taken…leaning against [a planter box]…

20 Mr Sharma said that at the time the light above the Unit 5 front doorway was on and light was illuminating from Units 5 and 6 through the open front doorways; the light above the doorway to Unit 6 was not turned on. He identified two steps outside Ms Hogan’s unit which he had used before and commented that “in the evenings it was harder to recognise or to differentiate between these steps…they seemed to blend into the main pathway, because of the formatting of the tiles. It’s the colour…you could not distinguish if there was a step there or not.” Since the plaintiff’s fall, Mr Sharma said a fluorescent round domed light had been installed in the ceiling which was activated by a sensor from movement so that there was now a good level of lighting along the pathway. Mr Lake added that now there are two lights in the pathway, one at the Unit 5 end and one at the other end. Prior to that, the dome light could only be activated from inside Unit 6 and not from the plaintiff’s unit.

21 The plaintiff was closely tested on her evidence of the mechanics of the fall and her awareness of the existence of the step by counsel for both defendants, particularly in view of the fact that apparently the four guests about an arm’s length in front of her had successfully negotiated the step without mishap. Nevertheless, she maintained she was looking but simply didn’t see the step; as she said, “I wasn’t looking for the step, I was just looking where I’m going like I do every day.” She said her right foot did not land on the lower level of the step but, as she said, “I believe it was on the step. As I hit the step my foot just over-stepped the step.”

22 Mr Lake was behind the plaintiff as the group emerged from Unit 5 and he said, “she just disappeared in front of me…She fell over.” Mr Lake had difficulty seeing the steps in the passageway because of their colour so that “it just looks like it’s not there.” Ms King was in front of the plaintiff and could not recall the offending step. However, Ms Schuitemaker, also in front of the plaintiff, was carrying a cat box and because it was “quite dark outside, not enough light for me to see exactly where I was stepping” did not see the single step until she was about a foot away from it; then, on hearing a noise, she turned around and saw the plaintiff on the ground. Like Mr Lake, Ms Schuitemaker said, “the colours run into each other so that’s why I didn’t realise the step was there.” Similarly, Ms Dalziel commented that the peach colour of the tiles “seemed to marry as one, one level” so that “it didn’t appear there were [steps there].” Indeed, Ms Dalziel, after the plaintiff fell and she was then leaving the complex, had difficulty with the second set of steps outside Ms Hogan’s unit when she nearly tripped on them and said she “was shocked that there were other stairs there” due to the tile colour which made it seem like a flat area. Significantly, Mr Dalziel remembered the lighting in the area outside Units 5 and 6 to be “poor” and thought “you couldn’t see the step because the tiles all blended in together.” He confirmed the incident on the second set of steps, when his wife nearly tripped – he said she “just missed her footing…I grabbed hold of her just to correct her…”

23 All of the witnesses to the incident were questioned for the defendants as to their observations at the time of the events. They maintained their evidence. Ms Hogan, who had then been living in Unit 6 for about three years, confirmed the lighting arrangements in the passageway with a down-light directly above the door to each of Unit 5 and Unit 6 and a dome light in the ceiling about 4 metres along the walkway from the steps outside Unit 6. She personally had had no problems with the step in the walkway but said that visitors “had been uncomfortable on that step…It was an awkward step, everybody noticed it after they landed” and she “asked everybody to mind the step when they were walking out.”

24 Very many photographs of the walkway outside Units 5 and 6 were in evidence. They have been of much assistance in understanding the oral evidence of the witnesses and clearly depicted the layout and configuration of the steps, their colour and the nature and effect of the lighting. In particular, I am satisfied that the lighting in the area at the time of the plaintiff’s fall was poor and the colour of the tiles made the single step, and also the two steps nearby, appear to merge into the length of the walkway as a level surface. I accept the circumstances of the accident as detailed by the plaintiff, supported as it was by those present. The consistency of the various witnesses as to the situation is compelling.

Expert evidence on the occurrence in the prevailing conditions

25 A report dated 10 May 2006 on the occurrence was prepared by Ross Andrew Karp, an architect with Mellon Architectural and Building Services, who inspected the site on 8 July 2005 at 7pm at the request of the plaintiff. Mr Karp paid particular attention to the design of the area outside Units 5 and 6 in terms of the walkway with a series of steps or risers, including the single step just adjacent to the front door of the plaintiff’s unit on which she fell and the lighting existing at the time. As a general proposition, he expressed the view “as a practising architect, that the risk of injury due to tripping and/or missing the step, especially in low or no light, is too high, especially when there appears to be no reason for [not] omitting the single risers and incorporating them into the adjacent two riser stair as a third riser.”

26 Mr Karp reached conclusions which may be relevantly summarised as follows –

• The lighting was inadequate due to insufficient light sources to illuminate the area of access and egress to the units; there were insufficient controls to activate the lights by residents and visitors; and an absence of permanent and emergency lighting activated by a timer or photoelectric switch.
• The path along the passageway was dangerous because of the use of single steps or risers in the vicinity of each of the neighbouring units which would have been easily avoidable by incorporating in the landing the single riser with the two risers to make a three-riser flight.
• A handrail should have been installed on at least one side of each of the steps.
• Single risers should not have been included in a path of egress as it was bad architectural practice as being very dangerous.
• The situation with the single risers could be rectified, subject to a structural engineer’s analysis.
• Low voltage garden lights on a timer could be added to the planter boxes to provide light to the access terrace.

27 Mr Karp concluded also that the Building Code of Australia had not been complied with in respect of the single step, the flight of two steps and the lighting. He illustrated his opinion by reference to coloured photographs of the area concerned which showed how the colour of the floor tiles related to the steps and the shadows cast over the single step from persons standing in the doorway of Unit 5. Significantly also, one of the photographs gave an excellent view from the open front door of the plaintiff’s unit, with the light above the doorway turned on, around 90 degrees to the left to the subject step – the landing immediately outside the doorway was lit, obviously from the downlight above the door, the single step was only one tile distance from the doorway on turning left and it was wholly for its length of a duller appearance than the tiles just outside the doorway.

28 The first defendant relied on a report from John Richard Cooke, a consulting architect, dated 20 November 2006 and a supplementary report dated 11 April 2007 which reviewed Mr Karp’s report. Dr Cooke, like Mr Karp, took photographs of the walkway outside Unit 5 from both directions and they confirmed what I have said above as to the colour of the floor tiles, the shading of them from the light and, it is to be emphasised, the general dull lighting of the area. Additionally, Dr Cooke’s photographs showed the white nosing placed on the edge of each step since the plaintiff’s fall so as to enable a contrast to be made with the position without the white nosing – it does indeed clearly identify the change in level caused by the steps from the continuous peach colour of the floor tiles.

29 Dr Cooke inspected the site on 2 and 14 August 2006. He measured the level of illuminance on the nosing of the step on which the plaintiff fell in various situations. With no lights switched on the level was less than one lux from a streetlight outside the front entrance to the unit complex. With the lights switched on inside Unit 5, the light outside Unit 5 switched on and the light outside Unit 6 switched on and the door to Unit 6 left open the reading level was approximately 20 lux. However, it was common ground in the case that when the plaintiff fell the light outside Unit 6 was off; thus, on Dr Cooke’s readings the illuminance level must have been less than 20 lux. He said a level of 20 lux corresponded with the recommended minimum of 20 lux for external stairs in Australian Standard 1680.2.1 – 1993 Table E1. It is to be seen from the table in the standard that the illuminance level for “corridors, passageways, ramps” is recommended at 40 lux and for “stairs (internal)” at 80 lux. I have to doubt that the subject area could properly be described as “external stairs” as that refers also to “catwalks.” I consider the area here outside Units 5 and 6 to be only properly characterised as a “corridor, passageway.” It follows, therefore, that the illuminance level at the time of the fall at less than 20 lux was less than one-half of the recommended level in the Australian Standard for a passageway and, even on Dr Cooke’s approach, less than the minimum level for external stairs. Dr Cooke thought a level of 3 lux at the accident site as sufficient for the step to be seen if attention was paid. I will, in view of the lay evidence, return to this aspect.

30 The opinions expressed in Dr Cooke’s report were by reference to each of the various allegations of negligence pleaded for the plaintiff. It is unnecessary to take each and every one in turn, rather I think his opinions may be conveniently put in this way –

• The premises were not designed and constructed in compliance with the Building Code of Australia and lighting code in the Australian Standard in that the artificial lighting system was not controlled by sensibly located switches as required for passageways giving access to a stairway.
• A handrail is not required as the stair light does not exceed one metre.
• The single step is adequately lit provided the light outside Unit 5 is on. However, the lighting system did not ensure that the steps were adequately lit in all circumstances.
• A light switch or sensor should have been provided near the top of the main stairway to ensure adequate illumination for people approaching Unit 5.
• The use of single steps and isolated short flights of steps should be avoided if possible as they are a potential hazard. However, the steps outside Units 5 and 6 do not breach any code or standard as the lights above the door to each unit could be controlled from inside each unit.
• The step on which the plaintiff fell is a potential hazard unless illuminated, but it does not breach any code or standard. A light could have been activated by the provision of a movement sensor.
• The step nosings fitted since the accident are not required under any code or standard and the highlighting obtained does not adequately compensate for the low level of illuminance when the lights outside Units 5 and 6 are off.
• The use of single steps is not good practice and they could have been easily eliminated by a different layout.

31 The publication Hazard – Victorian Injury Surveillance & Applied Research System, produced by the Accident Research Centre of Monash University, in the edition No 59 for Summer 2005, focused on analysing the latest Victorian injury surveillance data on home fall injuries amenable to structural and design solutions. Mr Karp relied upon it in his evidence. The article reported that “fifty per cent of 40 stair falls investigated…occurred in stairs with four or fewer risers. Of those 20 cases, 60% were on stairways with only one or two risers…One leading cause of stair falls is the failure to notice a one or two-riser stairway in the path.” The report added that “proper lighting is required near stairways so that the user can see the treads easily” and “a substantial proportion of stair falls has been attributed to the lack of handrails.” The article made recommendations to the following effect –

• Avoid unnecessary changes in levels in homes wherever possible.
• Single steps should be avoided, as they are difficult to notice. Steps should be grouped for better visibility, with each group having at least three steps.
• Provide at least one handrail, preferably one on each side, throughout the length of each stairway flight, even when there are only one or two risers in the stairway.
• Automatic sensor lights, self-illuminating strips or other form of lighting should be provided to enable the user to see the stair treads easily.
• Educate architects, home builders and the community about safe deign guidelines for preventing falls and other home injuries.

32 It may be seen that the points made in the Hazard article were entirely consistent with the views of Mr Karp and Dr Cooke, only that in the instant case Dr Cooke did not think a handrail was necessary and that the single step was adequately lit.

33 The second defendant presented a report of May 2007 from Mark Christopher Bullen, an architect. Importantly, Mr Bullen had experience as a practising architect over 25 years and for 18 years he had lectured at tertiary institutions in architecture, including for five years as a lecturer in professional architectural practice at the Universities of New South Wales and Sydney and as a presenter of such courses at seminars for the Royal Australian Institute of Architects. He did not visit the subject premises at Abbotsford. He was retained to give an opinion on whether the architectural design of the second defendant was both rational and consistent with competent professional practice as is widely accepted in Australia by peer professional opinion and to answer comments made by Mr Karp.

34 Mr Bullen noted from his instructions that the second defendant was retained to undertake the architectural design of the premises for the purposes of achieving local government approval for a development consent and a building approval; detailed working drawings were not required for these purposes and came later in the process as to the detail for things such as the services for the premises, including lighting.

35 The investigation by Mr Bullen was restricted to the architectural design by the second defendant in the vicinities of Units 5 and 6 but excluding the lighting as he saw nothing in the drawings prepared by the second defendant as relating to lighting. Relevantly, therefore, Mr Bullen concentrated on the single step on which the plaintiff fell and concluded that the design was rational and consistent with competent professional practice. As to the single step, he said:

In my opinion, nothing in the BCA or other regulation prohibits the use of a single step. Therefore, I do not consider the use of a single step a failure to provide a safe means of access and egress. I agree with Dr Cooke and Mr Karp that a single step is less than ideal and in my experience building designers commonly arrange changes of level to avoid a single step. I also agree that it is important to delineate the location of a single step which can be more difficult to detect than a group of stairs, in my experience. In my opinion, the lighting of the access to Unit 5 was of importance to providing safe access and egress to and from the unit, especially given the presence of a single step…had the step been adequately lit then it would have presented no such danger…delineating steps aids in their detection but in any event this relies on adequate lighting…attended to at the working drawing stage…

36 In summary, Mr Bullen in effect concluded –

• The second defendant’s building design for the premises was in accordance with that commonly adopted by professional building designers in practice.
• The inclusion of a single step complied with the building code.
• The omission of a handrail complied with the building code.
• The single step required adequate illumination to minimise the risk of injury due to tripping and/or missing the step.
• As the second defendant was not retained to provide details of lighting or working drawings in respect of the design, he is not responsible for the lack of adequate lighting, the poor location of the light switch outside Unit 5 or the lack of delineation and/or highlighting to the single step.
• No duty on the second defendant to design the lighting of the subject area near the steps arises from council’s building approval.

37 Each of the three expert witnesses was intensely cross-examined but I did not perceive them to amend or modify to any real extent the opinions expressed. Some criticism was levelled by the defendants’ counsel at the evidence of Mr Karp as being merely designed to assist the plaintiff and as an advocate in her case. I do not agree with that. I found his evidence helpful in a practical sense and the criticism, such as it was, seemed to be based on his reluctance to agree with the cross-examiner’s view as to the meaning of the Building Code of Australia as to the use of single steps and the meaning of a “flight” of stairs. I think Mr Karp’s reaction was only supportive of maintaining his own professional opinion and, as I expressed during debate with counsel, the code is not all that clearly drafted and, in a sense, is tautologous to the point of being ambiguous. Overall, apart from the strict requirements of the building code, the experts had the common view in a practical way that single steps were to be avoided as potential hazards to safety and that adequate lighting of an area was necessary. Of course, the Hazard article reinforced those views.

38 The following cross-examination of Dr Cooke is instructive as to the single step in the circumstances here:

Q. You see, a single step is a potential hazard because people don't necessarily expect to encounter them, do they?
A. People who are not familiar with the setting, yes.
…

Q. What I'm getting at though, just by looking at that step it's a relatively short step compared with other steps that people might encounter?
A. Relatively short, yes.

Q. Of course that creates a difficulty as well in terms of the step being able to be observed. Isn't that correct?
A. Well it has some effect on that, yes.

Q. One of the other difficulties that you have with a single riser is that the top of the riser and the ensuing pathway can, depending upon the material used, merge together so the step is not sometimes seen?
A. Yes, that can happen.

Q. In this instance that is more of a problem in terms of being able to sight the step if you're proceeding down it rather than up it?
A. That's correct.

Q. Ways and means whereby the hazardous effects of a short step could be reduced would be to have white-coloured nosing on the nose of the step?
A. That's correct.
…

Q. Was that (white coloured nosing) to allow people to more clearly see the step and take appropriate action. Is that correct?
A. That's correct. Well it draws attention to the fact that there is a change of level.

Q. And very clear attention given the white strip. It's hard to miss it, a white strip?
A. That's right.

Q. The other thing that can be done is to provide a handrail to give people stability if they're proceeding in an area where there's a single step that they can hang on to and if something untoward occurs then they probably don't have an accident?
A. If they're using it.
…

Q. What I think you had suggested and what he'd (Mr Karp) suggested is that what they should have done was to have banked the steps together as three steps further down the pathway?
A. That could have been done, yes.

Q. The effect of that would be that you'd have a better chance of seeing it because they're not just one step it's three steps?
A. Yes, groups – numbers of steps are easier to see than single steps.

Injury to the plaintiff

39 In the process of farewelling guests when the fall on the step occurred, the plaintiff said “I could not believe it, could not believe it.” Mr Lake and Mr Dalziel picked her up and put her on the planter box as she felt “absolute pain” in her right ankle and in the left ankle which she thought to be sprained. After resting inside her unit for a short period with an ice-pack on the right ankle to reduce swelling, Mr Lake took her to Concord Hospital where x-rays showed the ankle had been fractured. The plaintiff was given injections of morphine for the pain and noticed that her toes and ankle were “very swollen and very red.” Early on 19 April 2004 she had surgery to the right ankle for fixation of the fracture and a plate and screws were internally inserted; a plaster cast was fitted. She was discharged on 23 April 2004 with the need to use a wheelchair and Mr Lake took her back to the unit.

40 The plaintiff used a wheelchair for about six weeks after discharge from the hospital and the plaster cast, which had to be refitted every five days or so, remained in place for eight weeks – during this period she said she had “terrible pain” in the right ankle which continued in a swollen state and medication was necessary for the pain. Crutches were used for mobility for a period of about four months after the wheelchair was abandoned and Mr Lake carried the plaintiff to their car in the car park to visit doctors. After the plaster cast was removed, the plaintiff reported numbness in the right ankle but the top of the foot became very sensitive to touch and the toes spread in a clawing manner; she said the colour of the ankle area was always red. The plaintiff said a concern had arisen with calcification occurring around the plate and screws in the ankle with protrusion of the hardware under the skin – observations in the witness box of the plaintiff’s ankle showed white spots on the skin and lumps where the metal was placed with discolouration and a spreading of her toes.

41 Medication for pain has been taken by the plaintiff since her hospitalisation, particularly to assist sleep and she expects to require that for the rest of her life. For about a year after the accident she took medication for anxiety and depression.

Consequences of the injury

42 A return to work at Aladdin was made by the plaintiff on 1 July 2004. She drove to her job but continued to use crutches. Limited duties were performed of about three or four hours per day, starting at 7 or 8am, for three days each week during the first month. If possible, she still called on customers but most of the work was at her employer’s premises. Gradually, her workload increased so that after one month she was working six hours a day and after a further two and a half months she was working six hours a day over the full five days a week. However, frequent occasions arose when she said the ankle pain was so bad that she went home and telephoned customers from there. The plaintiff acknowledged her employer was very tolerant of her situation and, although employment continued, there was a concern if business considerations changed her job security may be at risk. In any event, the plaintiff repeated in her present state that employment may only be possible to age 55 years and not 65 years as she intended.

43 Following her discharge from Concord Hospital, the plaintiff consulted a general practitioner, Dr Asha Nair, at the Leichhardt Medical Centre on 29 April 2004. She saw him regularly thereafter at intervals of one or two months complaining of paraesthesia in the right leg, foot drop on the right side, teariness and emotional vulnerability. She reported to Dr Nair constant throbbing pain and colour changes in her right foot, with sleep disturbance. Dr Nair prescribed Gabapentin for the pain and to assist sleep; he referred her to Dr Winnie Hong at the pain clinic at Concord Hospital but continued to see her from time-to-time, presently each month, as the specified complaints with the right ankle have persisted. In a report as late as 13 November 2006, Dr Nair stated “her condition is not stable…It is difficult to determine the prognosis and suitability to return to pre-injury occupation at this stage.”

44 The plaintiff was first seen by Dr Hong, a consultant specialist in anaesthesia and pain management, on 21 July 2004 and has continued under her treatment by seeing her every three months. Dr Hong referred the plaintiff to Dr John Ditton at the pain clinic of Royal Prince Alfred Hospital regarding the suitability of spinal stimulation to deal with the ankle pain and he saw her on 20 December 2006; caution about having this somewhat invasive procedure was felt by the plaintiff but she said she would have it if her symptoms did not substantially improve. Dr Robert Breit reviewed the plaintiff on 23 August 2006 in the orthopaedic clinic at Concord Hospital.

45 For herself at the present time, the plaintiff experienced pain in the right ankle and leg, with emotional difficulties and bouts of depression. The right ankle frequently gives way when walking and when using stairs; her foot swings to the right and she has a limp – a return to golf has been impossible. The right foot remains very sensitive to touch and even light things on her foot, such as a sheet in bed, cause discomfort “like knives going into your foot” and sleep interruptions with the pain occur so that only four to five hours per night are possible. Significantly too, the plaintiff and Mr Lake have slept in separate bedrooms and the ankle pain makes it “terrible having sex.”

46 Treatment for the plaintiff included physiotherapy until June 2004. From 29 July 2004 she received at the Concord Hospital intravenous nerve block injections under anaesthetic to relieve pain in the right ankle and lower back – the procedure, of which she has had five in the ankle and two in the lumbar spine, takes from one and a half to two hours and requires a recovery period of up to two days. Pain relief from these injections usually occurs but it varies and sometimes there is not much relief at all.

47 Domestically, the plaintiff received attendant care from Mr Lake for from two to three hours a day when she left hospital for about three months in terms of, as she said, “all of the duties around the house, as well as cooking and shopping…showering and bathing” which she had previously done. Since then, Mr Lake has continued for about one and a half hours a day to do “the cooking…shopping…picking up something on the floor…wiping benches I can do but anything that’s like scrubbing floors or baths…I can’t do.” Now, Mr Lake said he does “lots of things…a lot more of the cooking…all the ironing…all the cleaning, the toilets…the washing…help her with the shopping…” He proposed to continue doing those things. Overall, Mr Lake confirmed the plaintiff’s condition and the care he provided at home.

48 Ms King, Ms Schuitemaker and Ms Dalziel, the plaintiff’s work colleagues, and Mr Dalziel, gave evidence contrasting the plaintiff’s disposition after the accident with, as detailed earlier, what it was beforehand. The contrast was quite marked. For instance, Ms King related what the plaintiff was like during a holiday they shared in February 2007 at Forster when her physical limitations to engage in ordinary activities were manifest. Ms King added that “you don’t ring Sandra after about six…she’s resting, she has to turn her phone off, she’s taking the tablets and she’s in bed by eight.” The other witnesses referred to the plaintiff’s apparent distress with pain, lack of energy, increased emotion, frustration in trying to do things, walking with a limp, withdrawn and generally quieter in demeanour.

Negligence – duty of care and whether breached

49 The action claimed against both defendants negligence in breach of the respective duty of care each owed the plaintiff. The particulars of negligence alleged were common and focused upon the presence of the single step in the passageway outside the plaintiff’s unit in conditions of inadequate or poor lighting so as to mask the presence of the step and where, in any event, the colour of the floor tiles gave the impression of a continuous level surface. The absence of a handrail denied the plaintiff an opportunity to steady herself as she negotiated the step. It was further complained that the step was not sufficiently highlighted by paint, tape, or other means and there was no facility to activate the dome ceiling light other than a switch inside Ms Hogan’s unit. By reason of those specified defects and failures, it was put for the plaintiff that the defendants had thereby breached the duty of care owed to her thereby causing the injuries.

50 Having in mind the way the matter was argued and the different roles of each defendant, it is necessary to consider the position of each in turn. However, it is to be seen that there was no real issue that the defendants owed a duty of care to the plaintiff, rather the question was as to its nature and extent, including whether it had been breached.

51 First defendant: It was admitted that the first defendant was the owner of the unit complex concerned and, as such, had the responsibility for the care and control of the premises. It was the occupying landlord who leased Unit 5 to the plaintiff and Mr Lake. The subject accident occurred outside Unit 5 in the passageway which was common property.

52 In New South Wales Department of Housing v Hume [2007] NSWCA 69, McColl JA reviewed the authorities concerning the landlord’s duty of care and liability for personal injury. In the present case, the accident occurred not by any circumstance concerning the leased unit itself but by conditions existing on common property in an area available for access to and egress from the rented unit. Therefore, in my view, the duty owed by the first defendant was that of an occupier. As McColl JA observed in Hume (in para [58]) by reference to Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, “the occupier of premises is only required to take such care as is reasonable in the circumstances.” That proposition echoes what Gleeson CJ said in Jones v Bartlett (2000) 205 CLR 166 at 184-185 in paras [57]-[58] that the duty was “to take reasonable care to avoid foreseeable risk of injury” and that that was to be determined by “the standards of the reasonable person” involving “a factual judgment.”

53 The first defendant was not only the occupier of the premises as the owner. The evidence showed it developed the site in the late-1990s using the services of the second defendant for architectural design and documentation, including design development, council negotiations, engineering co-ordination, detailed building plans, landscape plan, site consultations and assessment. As such, I think those matters are to be considered as part of the factual mix in determining the standard of care to be attributed here to the first defendant as to what was “reasonable” – it is, in my view, higher than what might otherwise be accepted for a mere occupier of the premises because the first defendant was itself involved in the design and construction of the premises.

54 Second defendant: An admission was made by the second defendant that he created the architectural design of certain aspects of the premises for the purpose of achieving the necessary building approvals. However, he specifically pleaded that he was not required to provide detailed working drawings in respect of the design of the premises.

55 It was apparent from the drawings admitted into evidence that the second defendant designed the subject passageway outside Units 5 and 6, including as to the location of the single step. But there was no evidence, at least not as was discernible to me, that he designed or was in any way involved with the lighting or choice of floor tiles in the area. Indeed, Mr Karp agreed there was no document seen by him which represented a design or specification of the lighting or the floor finishes, including tiles, for the premises and he accepted that an architect such as the second defendant had an obligation only as to things for which he was engaged. The opinion of Mr Bullen was consistent with that view.

56 Accordingly, I find that the extent of the second defendant’s duty of care was limited to the existence and positioning of the single step and did not extend to the lighting or selection of the tile finishes in the building.

57 The second defendant’s duty to take reasonable care in designing the use of a single step in terms of the foreseeable risk of injury therefore falls to be determined in the light of that factual finding.

58 Whether breach of duty of care: I have earlier reviewed the circumstances of the accident and accepted what occurred as detailed by the plaintiff and as supported by those other persons present. I should in this respect mention a submission put for the second defendant that the versions given, as stated earlier, by the only persons who actually saw the mechanics of the fall, the plaintiff herself and Mr Sharma, were vastly different. On the plaintiff’s description, it was said she lost her footing before she even got to the step so that the step played no relevant role; on Mr Sharma’s description, she overshot the step by a whole stride so that, given she knew the step was there as she admitted, she cannot have been looking where she was going. The first defendant was content to rely on a submission that the plaintiff failed to keep a proper lookout.

59 I do not agree that the versions of the accident given by the plaintiff and by Mr Sharma were different. I think they represented an explanation of what occurred from a different perspective. They may reasonably be viewed together as describing the single incident. I am satisfied what occurred was that the plaintiff’s right foot was placed on the top of the riser but by partly extending beyond the edge to such an extent that the foot was caused to shoot forward into the air and, with the forward movement, she thereby lost balance and fell. The real issue, it seems to me, is why and how that occurred.

60 The plaintiff maintained she was looking where she was going and was aware of the existence of the single step but where she had only used it on the single occasion the unit was first inspected a few days before the accident. I accept that the plaintiff was properly attending as she walked along the passageway behind her guests so that she was looking where she was going.

61 The occurrence of the accident and the role of the defendants in it is to be seen in the context of the then circumstances which may, in my view, be summarised as follows –

• The single step was located immediately to the left of the front doorway to Unit 5 at 90 degrees as one exited the unit.
• There were six persons leaving the unit at the time, the plaintiff and Mr Lake being at the rear of the group, and there was approximately one pace between each of them as they proceeded in single file.
• The illumination of the passageway, on any view of the lay and expert evidence, was not good. Indeed, it was variously described as “dull”, “poor” and “dark” by the lay witnesses and, on Dr Cooke’s measurements, was about 18 lux at the time but where the Australian Standard for an area such as this was 40 lux. The view of Dr Cooke that 3 lux was sufficient to see the step may well be right, but only if, I think, one were deliberately pausing and looking at it rather than moving forward in the ordinary human way as one walked along a passageway.
• With the four guests in front of the plaintiff, the passageway outside the plaintiff’s unit near the step was crowded so that it would not have been clearly visible to the plaintiff as she exited through the doorway and turned left.
• With the down-light above the Unit 5 doorway turned on, shadows would have been cast over the step from the plaintiff as she exited the unit and turned left.
• The colour of the floor tiles gave the appearance of an uninterrupted level surface along the path of the passageway without the presence of the single step; the low illumination in the area added to this appearance.
• There was no handrail or other facility adjacent to the step to enable the plaintiff to steady herself as she negotiated the step.
• The single step was not otherwise highlighted or identified, such as by white tape on the “nosing” of the riser or by discrete lighting.
• The dome light in the ceiling of the passageway beyond Unit 6 was off and, in any case, could only be activated from inside Unit 6 and not from the plaintiff’s Unit 5.

62 I was referred by counsel to a number of decided cases concerning injury sustained by falling on steps. Like McColl JA in Hume (in para [68]), I have in mind the following comments by Gleeson CJ and Kirby J in Vairy v Wyong Shire Council (2005) 223 CLR 422 in para [2]:

…the issue of breach of duty in an action framed in negligence is one of fact, although its resolution involves the application of normative standards…[while] comparisons with similar cases will be made...decided cases in this area are fact-sensitive, and it is a sterile exercise, involving a misuse of precedent, to seek the solution to one case in decisions on the facts in other cases…[Nevertheless it was] understandable that, in a search for consistency, comparisons with similar cases will be made.

63 As a general proposition in circumstances such as the present, Heydon JA (with whom Meagher JA and Rolfe JA agreed) said in Wilkinson v Law Courts Ltd [2001] NSWCA 196 in para [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) Aust Torts Reports 81-297 at 61,566 per Handley JA.

64 In Francis v Lewis [2003] NSWCA 152 in para [41], Mason P (with whom Hodgson JA substantially agreed and Tobias JA agreed) observed that “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.” His Honour referred to Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 in para [12]; North Sydney Council v Plater [2002] NSWCA 225 in paras [43]-[44]; and Owners Strata Plan 30889 v Perrine [2002] NSWCA 324.

65 Given, as was submitted for the defendants and which I think to be correct, that the existence of a single step in itself could not constitute negligence, I regard the single step here in the mix of circumstances which existed as one factor to be taken into account in determining whether there was negligence by the defendants. Of course, as the three experts all agreed, a single step is to be avoided if at all possible because of the danger it posed and the Hazard article emphasised that view. Indeed, Mr Karp offered an alternative design of the passageway which eliminated the single step and made three risers instead of two in the flight of stairs just beyond the entrance to Unit 6; the result, if adopted at the design stage of the premises, would have been a level path along the passageway outside Units 5 and 6 and then the flight of the more acceptable three risers with a handrail adjacent to them for people to be able to steady themselves as they used the stairs. The evidence of Dr Cooke was relevantly significant in this respect as he agreed with a single step being a potential hazard, that the single step here was more of a problem in being seen due to the colour of the tiles, that white-coloured nosing on a single step would reduce its hazardous nature, that a handrail would provide stability and that Mr Karp’s proposal as to having a bank of three steps further down the passageway could have been done so that one would have a better chance of seeing a number of steps than a single step.

66 As against the first defendant, I am satisfied it breached the duty of care it owed the plaintiff in respect of the presence of the hazardous single step, the poor and inadequate lighting, the merging colour of the floor tiles and the absence of a steadying handrail adjacent to the step. In the circumstances as they occurred as the plaintiff was farewelling her four guests, those faults operated together, particularly having in mind the 90 degree left turn outside the doorway of Unit 5 when the single step was immediately met and the plaintiff’s unfamiliarity with the passageway, to cause the fall and injury to the plaintiff. The risk was readily foreseeable. The first defendant failed, in my view, to take reasonable care for the plaintiff’s safety in the manner outlined by her counsel as earlier recited, that is, the single step in the conditions obtaining constituted a trap or a concealed danger. Specifically, the alternative design of the passageway proposed by Mr Karp, adequate lighting of the area, a sufficiently delineated step or steps, a handrail and contrasting colour tiles where a step or a flight of stairs existed would have been appropriate measures to have taken to remove the danger.

67 As to the second defendant, the inclusion of the single step in the design of the area was the key failure. As Mr Karp found, a single riser should not have been incorporated in a path of egress as it was bad architectural practice as being very dangerous. And Dr Cooke considered the use of single steps was not good practice and could have been easily avoided by a different layout – Mr Karp suggested such an alternative. The Hazard article recommended against unnecessary changes in levels in homes and the avoidance of single steps, as they are difficult to notice, by grouping steps for better visibility with each group having at least three steps – Mr Karp’s suggestion. Further, the Hazard article urged the provision of a handrail throughout the length of a stairway flight even when there are only one or two risers in the stairway – again, Mr Karp’s suggestion. Mr Bullen agreed with Dr Cooke and Mr Karp that a single step was less than ideal and building designers commonly arrange changes of levels to avoid a single step. Given the existence of a single step in this unit complex, all three experts agreed that adequate lighting was important to provide safe access to and egress from Unit 5.

68 As I have said, the second defendant’s role was limited to the inclusion of the single step in the design of the area. Even so, it was at the core of what occurred to the plaintiff in the prevailing conditions. It was foreseeable as dangerous and as a risk and as bad architectural practice where, as here, it could have been avoided. The second defendant’s failure to avoid the single step was, in my view, therefore negligent. As his counsel emphasised, the second defendant had only designed the area with the single riser and that in itself did not give rise to any liability. However, that simply begs the question of what the second defendant was doing in the overall design and construction of this unit complex. He was certainly limited to the design and with no involvement in the detailed plans for the lighting and the tile selection. But, in my view, consistent with good architectural practice he was reasonably required to design the passageway area by avoiding the single step as there was a safer alternative. That he was not involved with the lighting or the tiles only serves, in my view, to increase the responsibility on him to create a design that was safe in a range of conditions. He did not do so and has thereby breached the duty owed to the plaintiff as a user of the passageway.

Contractual liability of first defendant

69 The plaintiff as against the first defendant relied additionally upon an action in contract on the basis of an implied term of the non-delegable duty of care that is owed by a landlord to a tenant to ensure that the premises are as safe as reasonable care can make them by any person. Support for this count was sought by the plaintiff’s counsel from Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313 and Maclenan v Segar [1917] 2 KB 325. Nevertheless, senior counsel conceded that the authorities dealing with this cause of action are, to say the least, somewhat confusing. For myself, having reviewed the cases referred to me by counsel, I am able to share that view. Reference was made too to Jones v Bartlett (2000) 205 CLR 166, O’Meara v Dominican Fathers [2003] ACTCA 24 and New South Wales Department of Housing v Hume [2007] NSWCA 69.

70 For the first defendant, its counsel resisted liability on the contractual basis claimed in that cll 12.1 and 12.2 of the residential tenancy agreement between it and the plaintiff (and as including Mr Lake) as express terms dealing with the condition of the premises excluded any possibility of an implied term. Reference was made to Jones v Bartlett, in paras [27], [34]-[37], [84], [87], [91], [225] and [280], Watson v George (1953) 89 CLR 409 at 423-424 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1981) 149 CLR 337 at 347. In the result, counsel submitted that there was no reason to impose a term as claimed in a residential lease.

71 It is clear that the contractual duty is stricter on the first defendant as a landlord than the ordinary common law duty on it in tort as an occupier. In a sense, in view of my findings on negligence, it is unnecessary to deal with this count in contract but it was fully argued and, therefore, I shall deal with it.

72 I think the answer against the contractual claim succeeding appears from the facts. The tenancy agreement was in respect of premises being Unit 5 and the lock up garage. It is true that for the plaintiff to enjoy the benefits of the premises she would be required to have access to and egress from them. However, in my view, the means of access and egress were not on premises covered by the tenancy agreement but rather they were common property for use by the plaintiff and other tenants, visitors and persons generally using the complex. The accident to the plaintiff occurred not on the “premises” the subject of the tenancy agreement but in the passageway outside Unit 5 in the common area. I am unable to imply the stricter contractual term of liability to an area where, for all other persons using it, the ordinary liability of an occupier would apply. It just so happens that the first defendant owned the whole unit complex, including the plaintiff’s Unit 5, but I do not see how that would impose contractual liability on it in respect of the common area not being premises covered by the tenancy agreement. This contractual count must fail.

73 If I be wrong in that view, I am not sure in any event that the contractual liability as stated for the plaintiff is available. As stated by McColl JA in Hume:

[66] The scope of an occupier’s duty of care in relation to the safety of premises, in particular in relation to the stairs in premises, has been considered in recent decisions of this Court of which only two, Wilkinson v Law Courts Ltd [2001] NSWCA 196 and Francis v Lewis [2003] NSWCA 152, appear to have been cited to the primary judge. Some have concerned leased residential premises, where the defendant was the landlord. None has distinguished between the duty of care the landlord owed to a tenant as opposed to a visitor.

74 The genesis of the contractual duty would appear to have come from comments by McCardie J in England in Maclenan v Segar [1917] 2 KB at 332-333, who effectively repeated passages of the judgment of Kelly CB in Francis v Cockrell (1870) LR 5 QB 510, to this effect:

Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of any one can make them. This rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises;…But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises.

75 In Watson v George (89 CLR at 424) his Lordship’s comments were said by Fullagar J (Williams ACJ and Kitto J agreeing) to be “a correct statement” and as representing “the general current authority.”

76 The standard of care so stated in contract was followed by the majority in Northern Sandblasting, albeit with varying reasoning, but that case concerned defects in the premises and the failure to properly repair an electrical fault. Gaudron J did not doubt (188 CLR at 358) that so far as concerns leased residential premises “the relationship between a landlord and those who constitute a tenant's household is one that gives rise to a duty on the part of the landlord to take reasonable care for their safety by putting and keeping the premises in a safe state of repair.” And in Jones v Bartlett (205 CLR at 192) her Honour explained:

[89] Neither the duty of care recognised by Brennan CJ in Northern Sandblasting nor that which I considered should be recognised in that case avails the appellant in this case. That is because the duty identified by Brennan CJ was confined to defects. And that which I thought should be recognised was simply a duty to put and keep the premises in a state of safe repair. The glass door in issue in this case was not defective and, not being defective, was not in need of repair.

[90] For the appellant to succeed in this case, there must now be recognised a duty on the part of a landlord of residential premises to ensure that those premises are as safe for residential use as reasonable care and skill on the part of anyone can make them.

[91] The nature of the relationship between a landlord and the members of his or her tenant's household is not such, in my view, as to require the imposition of a higher duty of care than that which I thought should be recognised in Northern Sandblasting. That relationship is contractual. Moreover it is a relationship that involves an element of choice. As the relationship is contractual, the parties can either stipulate as to the terms of the tenancy or elect not to enter into that relationship…

[92]…there is no basis for the imposition of a higher duty of care on a landlord than is cast on an occupier of premises. As the occupier of premises is only required to take such care as is reasonable in the circumstances (see Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479), 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.

77 In Hume, as I have earlier said, McColl JA analysed the development in the authorities on this contractual point of the implied duty of care on a landlord and concluded “that in Ahluwalia v Robinson [2003] NSWCA 175, the only authority in this Court decided since Jones v Bartlett which concerned a landlord’s duty of care to a visitor to leased residential premises, no distinction was drawn between the duty owed to a tenant and that owed to a visitor.” Recognising what Gummow and Hayne JJ said in Jones v Bartlett (205 CLR at 215 in para [171]), namely that “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”, her Honour added (in paras [87]-[88]):

[87] My researches do not reveal any decision of this Court in which Gummow and Hayne JJ’s views about a landlord’s duty of care to a visitor to leased residential premises have been accepted as authoritative. Accordingly, in my view the appellant’s submission that this Court should hold that its duty to the respondent was confined in the manner outlined by their Honours should not be accepted. Rather, in my view, the case should be approached on the basis agreed before the primary judge which, as I understand the authorities applied the duty of care which has been found to apply as between landlord and tenant.

[88] On that basis the appellant owed a duty to the respondent to take reasonable care to avoid foreseeable risk of injury, but did not have to make the premises as safe as reasonable care could make them…

78 For myself, I prefer the clear and unequivocal approach to the duty of a landlord to a tenant in leased residential premises to be that as stated in Maclenan v Segar, Watson v George and Northern Sandblasting, that is, the implication of a term that the premises are as safe as reasonable care can make them by any person. However, my view is not and cannot be determinative on this point, notwithstanding the apparent, at least to me, moving and differing approaches in the authorities over the years. It is sufficient to acknowledge that from cases like Jones v Bartlett and the very many cases in the Court of Appeal in this State, as so recently summarised and reviewed in Hume in the decision given on 28 March 2007, that the duty of a landlord to a tenant in respect of residential premises is not distinct from that of an occupier of premises. Perhaps the case of Australian Safeway Stores v Zaluzna (1987) 162 CLR 479 in abolishing the categories of invitee, licensee and the like in negligence cases heralded this development.

79 Accordingly, I find that the plaintiff’s count in contract against the first defendant should fail.

Contributory negligence

80 The defendants pleaded contributory negligence on the plaintiff’s part in failing to take care for her own safety. The particulars relied upon were identical for each defendant, as follows:

a) Failing to take any or any adequate precautions for her own safety.
b) Failing to keep a proper lookout.
c) Failing to accustom and acquaint herself with her living premises.
d) Failing to turn on a light switch before proceeding down the stairs.
e) Proceeding on the stairway without reasonable care in all of the circumstances.

81 I have already found that the plaintiff, as she said, was keeping a proper lookout so that particular (b) fails. Particular (c) falls to be considered where the plaintiff had occupied the premises for only a few days and, in a real sense, was still becoming familiar with the environs – I do not see this particular as having been made out. Particular (d) must also fail because the light referred to must have been the dome ceiling light in the passageway but for which the switch was located in the neighbour’s Unit 6. That leaves for consideration particulars (a) and (e) which may conveniently be considered together.

82 In the circumstances, the defendants sought a “hefty” finding by way of contributory negligence of not less than 40 per cent. Senior counsel for the plaintiff submitted that if her evidence be accepted then there was no scope for a finding of any contributory negligence. Given that every possible witness to what occurred was called for the plaintiff to give evidence, and where that evidence did not contradict but supported the plaintiff, then, so senior counsel put, the defendants had not discharged the onus on them to establish any contributory negligence.

83 In deciding whether the plaintiff was proceeding with reasonable care, the test was put in Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494 as “the making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage”; it was added that that involves “a comparison…of the degree of departure from the standard of care of the reasonable man…and of the relative importance of the acts of the parties in causing damage…”

84 Of course, and as King CJ observed in Fennell v Supervision and Engineering Services Holdings Pty Ltd and Santos Ltd (1988) 47 SASR 6 at 12, “misjudgement is not contributory negligence.” In Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301 at 310, Mason, Wilson and Dawson JJ distinguished contributory negligence as “negligence rendering [the plaintiff] responsible in part for the damage” rather than “mere inadvertence, inattention or misjudgement.”

85 The plaintiff was keeping a proper lookout. She was farewelling a group of guests in, according to the evidence, an unsurprising and expected manner in a social setting. I am satisfied that in balancing the respective roles of the parties the whole responsibility for this accident rested with the defendants. A situation was created by them with the single step, poor lighting and tile colour which all came together, as I have found, to expose the plaintiff to an unreasonable and foreseeable hazard. At most, she may have been momentarily inattentive and misjudged the step, but that is not negligence on her part.

86 The claims for contributory negligence are dismissed.

Cross-claims – apportionment and statutory contribution

87 The Law Reform (Miscellaneous Provisions) Act 1946 in s 5(2) requires the amount of contribution recoverable to be “just and equitable having regard to the extent of that person’s responsibility for the damage.” In making the assessment, the process involves a comparison of the relative culpability of the defendants for what occurred by reference to the extent to which there had been a departure from a reasonable standard of care: see Boral Transport Ltd v Whitehead [2001] NSWCA 395 in para [58] per Sheller JA, with whom Stein JA and Heydon JA agreed.

88 Counsel for the second defendant emphasised that his only involvement with the accident was as to the existence of the single step and with no concern in any of the other matters such as the lighting or the floor tiles. As such, if liability be found, then the apportionment should be 10 per cent for the second defendant and 90 per cent for the first defendant. For the first defendant, counsel submitted that the second defendant should fully indemnify it or, if some apportionment be thought appropriate, then it should be a contribution of 80 per cent by the second defendant and 20 per cent by the first defendant. Counsel based that approach on a submission that the provision of the single step, the responsibility of the second defendant as the design architect, was the most proximate cause of the accident and represented a “poor design.”

89 I have earlier, in considering negligence, made findings as to the nature and extent of the defendants’ respective responsibility for the accident caused to the plaintiff. I will not repeat those matters, except to say that the existence of the single step was at the core of what occurred in the prevailing conditions of poor lighting, colour of the floor tiles and lack of a handrail. But it is not only the existence of the step, rather that was compounded as a risk in the poor design of the passageway by being located at 90 degrees just to the left of the plaintiff’s doorway as one exited the unit. In balancing the appropriate contribution of each defendant, I think the primary and substantial liability should be that of the first defendant which, in any event, accepted the second defendant’s poor design of the area. The second defendant, however, contributed to a not insignificant and most relevant extent in the poor design of the area, when a reasonable and safer alternative was available. Without the single step the accident would not have occurred, but with it no provision was made for it to be highlighted and readily seen.

90 I conclude that the appropriate apportionment for responsibility of the defendants for the plaintiff’s injury would be 70 per cent for the first defendant and 30 per cent for the second defendant. As between the two defendants on their cross-claims, I am therefore of the view that it would be just and equitable for each to share liability for any damages found for the plaintiff by way of contribution according to the proportions of responsibility so assessed.

Medical evidence

91 Dr Robert Breit, an orthopaedic surgeon at Concord Hospital, performed the surgery on the plaintiff’s right ankle on 19 April 2004 to repair the fracture, including by internal fixation of a metal plate and screws. After initial reviews, he finally saw her on 23 August 2006 and in a report of September 2006 to Dr Hong recorded her continuing problems of pain which he said were “typical of sympathetic dystrophy” but where “the fracture is united and there are no untoward features.” He noted the hypersensitive nature of the foot and ankle with restricted movement and the need for pain medication. Dr Breit concluded, however, that “from my point of view there is nothing I can offer…I tend to remove the plate but it’s really not causing her any significant problems and…there is risk of making this whole situation worse with further surgery.” Even so, as the plaintiff demonstrated in the witness box at trial, the internal metal is pressing against her skin and showing white lumps (calcification).

92 Orthopaedically, the plaintiff was examined by Dr Raymond Wallace, an orthopaedic surgeon, for medico-legal purposes on 9 February 2006 and 21 September 2006. In his final report of 3 November 2006, Dr Wallace noted that the plaintiff’s right ankle and foot condition had failed to improve. He considered she would have difficulty in continuing pre-injury duties but she was best suited to do so on a light duties basis with no repetitive bending, squatting, crouching or kneeling, standing for prolonged periods, working in confined spaces, prolonged driving of a motor vehicle or prolonged periods of walking or stair climbing. The prognosis was for ongoing conservative treatment for pain management (medication, physiotherapy, massage and nerve block injections) but surgical intervention was not required. The ongoing complaint of interference from her condition in leisure activities, sleep disturbance and difficulty in doing household work was thought by Dr Wallace to be long term. He assessed her total whole person impairment as a result of the injuries to the right ankle as 8 per cent.

93 The plaintiff was examined by Dr David Bornstein, an orthopaedic surgeon, for the first defendant on 24 April 2006. He accepted a causal relationship of her foot problems to the subject accident with no pre-existing condition to account for her present symptoms. He considered she was “fit for work on the open labour market and is currently working in her pre-injury occupation.” Significantly, Dr Bornstein considered it reasonable to diagnose a complex regional pain syndrome, which generally implies injury to a specific nerve or nerves in the foot – such damage can be permanent. However, he thought the removal of the plate and screws ought resolve at least some of the pain in the ankle but removal could aggravate some of the underlying problems. The prognosis was regarded as static. He considered the plaintiff had suffered a whole person impairment of 10-11 per cent.

94 The principal treating specialist was Dr Hong who first saw the plaintiff at the Concord Hospital Multi-Disciplinary Pain Clinic on 21 July 2004. She provided regular treatment thereafter for the plaintiff’s symptoms of pain, including intravenous nerve blocks, heat, massage, physiotherapy and medication. Dr Hong provided regular reports of the plaintiff’s treatment and progress and currently reviews her every three months. In a report of 1 April 2005, Dr Hong diagnosed the plaintiff with complex regional pain syndrome, with injury to the right superficial peroneal nerve. After noting that “pain control has been fluctuating”, Dr Hong on 21 September 2006 referred the plaintiff to Dr John Ditton, a consultant in pain management at Royal Prince Alfred Hospital Pain Clinic, for consideration of spinal stimulation. The prognosis with the pain was considered to be “poor.”

95 The plaintiff consulted Dr Ditton on 20 December 2006 and he provided a report dated 30 January 2007. He noted symptoms consistent with a permanent injury to the superficial peroneal nerve resulting in the plaintiff’s main disability being the persisting pain from the nerve injury. The prognosis was for continued discomfort on an indefinite basis. Rather than manage the pain by medication, Dr Ditton considered the better long-term option would be a permanent epidural spinal cord stimulator, but with a trial electrode stimulator used externally before the permanent implant. Dr Ditton advised a cost of a trial for the hardware at $500 - $1,000 depending on the device used plus surgical fees of $1,800; the permanent device would cost $20,000 for the hardware plus surgical fees and hospitalisation for three days; replacement of the hardware would be required on average every 5 - 10 years at a similar cost as for the original surgery; and if the pain resolved in the future the device could be removed.

96 Dr Hong supported the use of the spinal stimulator but, as stated earlier, the plaintiff had yet to decide, but if the pain persisted she said she would have it.

97 Dr Hong gave oral evidence. She said she had taken treatment as far as it could be taken but it would be necessary to monitor the medication in future. As to fluctuations in the level of the plaintiff’s pain, Dr Hong said:

I have not seen her since the May [2007] visit but she has had improvement in the past, only to deteriorate further. At this late stage of the development of the syndrome, I believe her prognosis to be rather poor and any further improvement is, while not impossible, unlikely.

98 Dr Hong confirmed, without any doubt, her diagnosis of complex regional pain syndrome and that an appropriate treatment for this would be the spinal stimulator. However, she did explain the risk from the procedure of infection close to the spinal cord causing meningitis and, of course, the treatment may fail with any particular patient or there can be over-stimulation resulting in abnormal motor movements and requiring the adjustment of the device.

99 Cross-examination of Dr Hong focused very much on her diagnosis of complex regional pain syndrome, with the suggestion it was wrong and that the alternative diagnosis by Dr Stephen Potter, a rheumatologist, of a conversion reaction being the cause of the plaintiff’s symptoms was more likely. She strongly disagreed. It is to be noted that Dr Ditton also diagnosed complex regional pain syndrome and it was for that reason he recommended the spinal stimulation. In a sense, the plaintiff had the symptoms and from whatever cause would be of importance for medical treatment but of little relevance for present purposes, other than the cost of the stimulation device and procedure.

100 The plaintiff’s general practitioner, Dr Nair, provided reports dated 19 September 2005 and 13 November 2006. In them, he traced her medical history after the April 2004 accident. In general terms, Dr Nair’s comments confirmed the plaintiff’s evidence of her condition and of her complaints. He continues to see the plaintiff on a monthly basis and in the second of his reports noted “her condition is not stable…difficult to determine the prognosis.”

101 Dr Paul Teychenne, a neurologist, examined and tested the plaintiff on 14 December 2005 and 14 February 2006. He assessed her whole person impairment from the accident as to injury to the central nervous system as being 19 per cent. After noting the presence of a right foot drop, discolouration and swelling of the right ankle and sensitivity to touch, Dr Teychenne in his report of 14 February 2006 said the tests of muscle sampling were consistent with a lesion of the right lateral popliteal nerve, as Dr Hong and Dr Ditton had both found; he found also evidence of a lesion of the right posterior tibial nerve with a marked decrease of movement in the muscles. He diagnosed, again like Dr Hong and Dr Ditton, a complex regional pain syndrome in the right ankle but with a spread of symptoms to the right lower leg.

102 Dr Teychenne reviewed Dr Bornstein’s report of 24 April 2006 and, while agreeing with many of the comments, disagreed with Dr Bornstein’s assessment of whole person impairment and also thought that the level of complex regional pain syndrome was higher.

103 Dr Keith Mayne, a consultant psychiatrist, examined the plaintiff on 27 March 2006 and in a report of 28 March 2006 recorded “she remains in a state of severe and constant pain and disability.” Dr Mayne opined that the plaintiff “suffers from a chronic adjustment disorder with depressed mood” and recommended a course of anti-depressant medication and cognitive behavioural therapy. Although considering her fit for her current occupation, Dr Mayne said she was “only able to work for reduced hours, usually mornings only.” In a supplementary report of the same day, from the Psychiatric Impairment Rating Scale Dr Mayne assessed the plaintiff’s total whole person impairment as 13 per cent. He added the following limitations –

• Needs full-time support for shopping and food preparation; unable to prepare her own meals.
• Reduced contact with friends; unable to answer the telephone in the evenings.
• Can drive with difficulty.
• Irritable with her partner; no sexual relationship with him.
• Can only concentrate for 15 minutes at a time; significantly impaired for work tasks.
• Can only work in the mornings at reduced efficiency.

104 The plaintiff was examined by a psychiatrist, Dr Marilyn Moore, for the first defendant but no report has been served.

105 A consultant in rehabilitation medicine and pain medicine, Dr Clive Sun, first saw the plaintiff on 28 March 2006. In a report of the same day, Dr Sun diagnosed complex regional pain syndrome as developed following the fracture of the ankle in the accident. He considered, due to the chronicity of her condition, that she would continue to suffer from the right leg symptoms affecting her mobility and daily activities on a long-term basis. Provided suitable duties were available (no heavy lifting, no forceful pushing or pulling, no prolonged standing, limited walking and use of stairs), Dr Sun thought the plaintiff was fit to work 30 hours per week. He considered review by a general practitioner every 4-6 weeks for medications and pain review every three months by a pain specialist. He assessed her whole person impairment at a total of 26 per cent. As to work capacity, Dr Sun did not expect the plaintiff to remain in the workplace at her current job for more than five years from May 2007; in the meantime, she will require facilities to perform work mainly from home.

106 The second defendant’s counsel called oral evidence from Dr Potter who examined the plaintiff once on 20 September 2006 and who prepared reports on 22 September 2006, 3 November 2006 and 3 December 2006. The principal issue from Dr Potter’s opinion was that he considered the plaintiff had developed an abnormal pain response from the injury to the right ankle being a conversion reaction which is psychologically driven; Dr Potter said the diagnosis of complex regional pain syndrome was incorrect. However, he conceded he was not qualified to assess the plaintiff’s psychological status but only to define her musculoskeletal problems. Even so, during challenge in cross-examination to his diagnosis, Dr Potter said he did “nothing else but the study and care of people suffering pain and rheumatic disease. A conversion reaction is part and parcel of my daily life, it is what I see in clinical practice, it is not a psychiatric diagnosis.”

107 In the result from his diagnosis, Dr Potter was of the opinion that the plaintiff needed ongoing care of “a combination of home exercises and sensible analgesia, normal activities and counselling and reassurance.” He said she was “fit to work.” Nevertheless, he accepted that his diagnosis of conversion reaction instead of complex regional pain syndrome did “not minimise the suffering, merely explains the causation and mechanisms.” It followed, he said, that there was no justification for intervention by use of the spinal cord stimulator.

108 As to past and future domestic assistance due to her condition, Dr Potter accepted eight hours per week after the accident when she was in a wheelchair and using crutches was reasonable but that thereafter no home care was required. As to a prognosis, he considered the plaintiff’s complaint was stable and will continue.

Resultant condition of the plaintiff

109 Viewed overall, I consider the medical evidence supported the description by the plaintiff of her symptoms and complaints from the ankle injury. Specifically, in my view, it supported the present disabilities both at home and at work which she was experiencing. Putting aside the evidence of Dr Potter and Dr Bornstein, the picture of the plaintiff that emerged was one of a person who had suffered a relatively straightforward ankle fracture. It had been surgically repaired, albeit with a lengthy period requiring the use of a wheelchair and crutches as the right ankle was immobilised in a plaster cast, but the ongoing complication of severe pain had had major effects on her work, social, recreational and home life. She will require continued medical attention on a long-term basis for pain management from a specialist and general practitioner. Subject to the successful management of pain, the plaintiff will likely perform more of her work from home and will likely retire from work in about five years’ time. However, that, as I say, will depend on the management of her pain and that raises the issue of the spinal stimulation procedure which, in turn, concerns the conflicting diagnosis of complex regional pain syndrome or conversion reaction. On this question will also depend the nature and extent of continuing domestic assistance.

110 I accept the diagnosis of complex regional pain syndrome according to the findings of Dr Hong, Dr Ditton, Dr Teychenne, Dr Sun and Dr Bornstein. Dr Potter’s diagnosis of conversion reaction is rejected. I accept also that the condition, without appropriate medical treatment, will continue and, that being so, I accept the plaintiff’s evidence that she will undergo the spinal stimulation procedure.

Damages

111 In assessing damages, the context involves a healthy, middle-age lady who was physically active and regularly engaged in social and recreational activities and who had a high work ethic. The accident on 18 April 2004, during what should have been a pleasurable social experience with work colleagues and friends, instantly changed her life and the evidence was overwhelming that she has since become a changed person with the resultant pain and depressed moods from her condition.

112 The second defendant supported the submissions put for the first defendant on the quantum of damages. However, his counsel emphasised that the plaintiff’s injury had not affected her ability to earn an income and, indeed, she was now earning more than she ever did; in that respect, there was no evidence from her employer, who was clearly sympathetic and tolerant of the plaintiff’s condition as she had to perform a lot of the work from home, that her employment was in any way at risk. Further, counsel submitted that the division of work tasks at home appeared now to reflect a more equitable arrangement with her partner.

113 Non-economic loss: Counsel for the plaintiff claimed an appropriate assessment would be 35 per cent of a most extreme case. The first defendant suggested compensation for this element at no more than 27 per cent.

114 In light of the circumstances as I have outlined them above as to the nature of the accident, medical treatment and the resultant continuing condition of the plaintiff, I assess non-economic loss at 33 per cent of a most extreme case, for which the maximum amount under s 16(2) of the Civil Liability Act is $427,000. A severity of 33 per cent attracts an amount of $141,000. I will allow that amount.

115 Past out-of-pocket expenses: These were agreed, and which I will allow, in the amount of $2,630.60.

116 Future out-of-pocket expenses: In the amended statement of particulars a number of future expenses were identified. Some were not ultimately pressed by the plaintiff but, of those remaining, the first defendant challenged the cognitive behavioural therapy sessions as recommended by Dr Mayne, the frequency of attendances at Concord Hospital pain clinic, consultations with a pain psychologist and the procedure for the dorsal column stimulator implant; otherwise, no objection was raised.

117 In the result, medication into the future in the total sum of $58,368.34 was claimed, as to which the first defendant did not wish to be heard – I will, therefore, allow that amount. Ten visits to a general practitioner each year at $35 per visit for a life expectancy of 33.5 years (5% multiplier of 860.1) were claimed in the amount of $5,789.13 and not challenged. A claim of $9,924 in respect of specialist consultation, no doubt the pain clinic, every three months at $150 per visit for the life expectancy was claimed and not resisted – I will allow that. An amount of $2,250 was claimed for 15 sessions of cognitive behavioural therapy according to the report of Dr Mayne – there was no evidence that the plaintiff had or would engage in this, but, having in mind Dr Mayne’s opinion and recommendation as to the plaintiff’s condition, I think she will come to avail herself of this in conjunction with her continued pain management under Dr Hong; I will, therefore, allow $2,250 for this item.

118 That takes one to a consideration of the contentious spinal stimulation procedure. Dr Ditton set out in his report the costs of $20,000 plus surgical fee of $1,800 plus anaesthetist plus three days in hospital with renewal of the facility every 5-10 years. The plaintiff claimed $25,000 per procedure with four renewal procedures each seven years thereafter for life, in the total sum of $69,125. On the basis of my finding of a diagnosis of complex regional pain syndrome and of the opinions of Dr Hong and Dr Ditton, which I accept, and that the plaintiff will likely have the procedure to relieve the continuing pain, I think it only reasonable that some allowance be made for it. A period of seven years, on Dr Ditton’s evidence, is reasonable for repeat procedures. I propose to allow the claim in this respect on a likelihood of the plaintiff having the procedure of 80 per cent so that the resultant amount is that proportion of $69,125, namely $55,300. In doing so, I repeat my earlier comment that necessarily by this procedure successfully relieving the plaintiff’s pain, in whole or in part, then her claim for future economic loss as to wages and the need for domestic assistance will be relevantly affected.

119 Accordingly, I will allow for future out-of-pocket expenses the total sum of $131,631.47.

120 Past economic loss: I was informed that this element had been agreed in the amount of $7,838.48. However, it transpired that that amount was agreed in respect of wages loss from 18 April 2004 to 21 June 2004 and for seven days when the plaintiff had time off work due to nerve block procedures. Her senior counsel pointed out that a further period of seven days should be allowed, in the amount of $1,055.18, for the total period of 14 days off work from the seven procedures whereas the first defendant’s counsel thought she had had only two procedures. The plaintiff’s evidence supported that she had in fact had seven procedures with two days’ absence from work after each. Therefore, I will allow the extra seven days claimed. The total amount for past wages loss is, therefore, $8,893.66.

121 Future economic loss: The claim for this element of $210,097.90 was based on the proposition that the plaintiff would retire in five years’ time at age 56 years being nine years before normal retirement age of 65 years. Reliance for this was the evidence of the plaintiff and of Dr Sun. Given that she was presently in employment and would so continue for five years at a net weekly wage (amount agreed) of $830, the calculation was made of earnings loss from June 2012 to normal retirement in June 2021 and the resultant amount then deferred for the five-year period with a 15 per cent reduction for vicissitudes. This claim was sharply resisted.

122 Accepting, as I do, the plaintiff’s evidence in this respect and that of Dr Sun, if the plaintiff’s condition of pain were to continue at its present level and frequency then the likelihood is that she would retire in June 2012 and not obtain other work even on a part-time basis. The critical issue, however, is a continuation of the pain in light of the relief which may be obtained from the spinal stimulation procedure which will, on a high probability, be undertaken. The state of the evidence on this aspect was such that it is not of easy resolution.

123 Dr Ditton, after a physical examination of the plaintiff and carrying out a nerve block, noted that she had signs and symptoms consistent with permanent injury to the superficial peroneal nerve. That was found also by Dr Hong. His prognosis was for a continuation of the discomfort on an indefinite basis and, in recommending spinal stimulation, said it “would be a better long term option than to continue to manage the pain with regular medications.” Of course, the procedure may fail or, as Dr Ditton said, “it is possible the electrodes may move or break in future.” As I understood the position, the spinal stimulation would not necessarily remove all pain but act as a preferable means to assist the control of it. I have allowed already for pain medication an amount of $58,368.34, included in which was $43,666.62 for the primary medicinal relief of Gabapentin. Clearly, one needs to be careful not to over-compensate for the available treatments. Nevertheless, the various options available do not deny the fact of the plaintiff’s permanent nerve damage which will cause pain from time-to-time but will act as a means for such pain to be managed. In that sense, I consider that the plaintiff will retire from work earlier than at 65 years as she copes with the means available to so control and manage the pain.

124 Given the availability of the spinal stimulation and medication, I think it reasonable to find that the plaintiff will certainly continue work until age 60 years and then retire in June 2016. Assuming five years income (June 2016 to June 2021) at $830 net per week less 15 per cent for vicissitudes, deferred for nine years, I calculate future economic loss as $105,343.49.

125 Loss of superannuation benefits: There was no issue that the superannuation benefits on both past and future lost earnings should be calculated at the rate of 9 per cent. For the past, 9 per cent of $8,893.66 is $800.43; and, for the future, 9 per cent of $105,343.49 is $9,480.91 – the total for this component, which I will allow, is $10,281.34.

126 Domestic assistance: For the past, the plaintiff claimed 17.5 hours per week of domestic assistance from Mr Lake for the eight-week period from 23 April 2004 to 18 June 2004 at $18.79 per hour (rate agreed), in the total sum of $2,630.60; and for 10.5 hours per week at $19.98 per hour (rate agreed) for 153 weeks from 19 June 2004 to 25 June 2007 in the total sum of $32,097.87. The former period related to when the plaintiff was in a wheelchair and on crutches and the latter period when she still required care from Mr Lake for the domestic tasks she previously performed up to the time of trial.

127 For the future, the claim of 10.5 hours per week was maintained, based on a rate of $21.17 per hour (rate agreed) from 26 June 2007 for a life expectancy of 33.5 years in the total sum of $191,187.32.

128 The first defendant accepted two to three hours per day of domestic assistance was reasonable during the eight-week period when the wheelchair was used but thereafter only half an hour per day. In the result, as the threshold of six hours per week and for six months under s 15(3) of the Civil Liability Act had not been met then no amount for this element should be allowed.

129 For the plaintiff, senior counsel relied on her evidence and that of Mr Lake to the effect that prior to the accident she did most of the domestic chores with Mr Lake limited to some sweeping, dusting and washing; since the accident, by reason of the plaintiff’s continuing disabilities, there were significant areas of domestic work she was unable to do and Mr Lake now did them to the extent of one and a half hours per day, that is, 10.5 hours per week. Although the plaintiff and Mr Lake were in a domestic situation before the accident of mutual give and take, senior counsel submitted on the facts here that the plaintiff was precluded after the accident from providing any “countervailing services” to Mr Lake so that she was entitled to recover Griffith v Kerkemeyer ((1977) 139 CLR 161) type damages. Reliance was placed on Van Gervan v Fenton (1992) 175 CLR 327 at 344, where Deane and Dawson JJ said:

…such services will be taken out of the area of the ordinary give-and-take of marriage to the extent that the injuries to the wife or husband preclude her or him from providing any countervailing services. To that extent, the continuing gratuitous services provided by the spouse assume a different character and should be treated as additional services which have been or will be provided by that spouse to look after the accident-caused needs of the injured plaintiff.

130 Brennan J (at 340 – 341) reasoned to a similar effect.

131 The claim for gratuitous domestic care was dependent of the evidence of the plaintiff and Mr Lake. They were not seriously challenged in cross-examination on the arrangements for the performance of the household duties, either before or after the accident, or on the nature of the services provided by Mr Lake and the time involved. Overall, I accept their evidence in those respects. In doing so, however, and as senior counsel for the plaintiff conceded, I am required in determining the number of hours to have regard to those services provided solely for the benefit of Mr Lake as distinct from services provided to the plaintiff and him jointly: see Woolworths Ltd v Lawlor [2004] NSWCA 209 in paras [16] – [19].

132 On the evidence, I have no difficulty in accepting 17.5 hours per week of assistance provided by Mr Lake to the plaintiff in the eight-week period following her discharge from Concord Hospital. Similarly, on their evidence, I accept one hour per day, seven hours per week, for the period of 158 weeks from 19 June 2004 to date – I note that the evidence for this period ranged from one to one and a half hours a day and I have taken the lower one hour figure to acknowledge those services Mr Lake performed for his sole benefit. The issue, then, turns on the future domestic assistance required.

133 In the short term, I am satisfied that Mr Lake will continue to provide one hour per day or seven hours per week. However, as the plaintiff comes to control and better manage her pain by means of the spinal stimulation procedure, medication consultations with Dr Hong as to pain management and cognitive behavioural therapy sessions as recommended by Dr Mayne for depressed mood, I consider the plaintiff will perform more of the domestic services for herself. It is to be noted that even now she attends to her own personal care needs. It is difficult to be precise, but it would seem reasonable and as common sense to allow continued care by Mr Lake on the present basis of one hour per day for a period of three years into the future, reducing thereafter to half an hour per day or three and a half hours per week. As that latter amount does not exceed the six hours’ weekly threshold in s 15(3) of the Civil Liability Act, no damages may be awarded after the end of that two-year period: see Roads and Traffic Authority v McGregor [2005] NSWCA 388 in paras [171] – [174]; but compare Sheridan v Borgmeyer [2006] NSWCA 201.

134 It therefore follows that the award for gratuitous domestic assistance should be $2,630.60 for the period 23 April 2004 to 18 June 2004 (eight weeks); $22,097.88 from 19 June 2004 to date (158 weeks); and $21,576.46 for three years thereafter (seven hours per week at $21.17 per hour applying 5% multiplier of 145.6) – the total amount for this element is $46,304.94.

Summary of damages: The damages I allow as against both the first and second defendants in favour of the plaintiff comprise the following elements: non-economic loss of $141,000; past out-of-pocket expenses of $2,630.60; future out-of-pocket expenses of $131,631.47; past economic loss of $8,893.66; future economic loss of $105,343.49; loss of superannuation benefits of $10,281.34; and domestic assistance of $46,304.94. The total is $446,085.50.

Conclusion and orders

135 The plaintiff is entitled to a verdict against the first and second defendants in the amount of $446,085.50. As to the cross-claims, the first defendant is entitled to a contribution from the second defendant in the amount of $133,825.65 and the second defendant is entitled to a contribution from the first defendant in the amount of $312,259.85.

136 I will hear the parties on costs before making final orders.

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