Denis Johnston v State of New South Wales

[2015] NSWDC 46

District Court

New South Wales

Medium Neutral Citation:	Denis Johnston v State of New South Wales [2015] NSWDC 46
Hearing dates:	26-27 March and 30 March 2015
Decision date:	17 April 2015
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict and Judgment for the plaintiff. For orders see [74]
Catchwords:	Torts; scope of duty of care of landlord; breach of duty; contributory negligence, assessment of damages.
Legislation Cited:	Civil Liability Act 2002
Cases Cited:	Adeel’s Palace Pty Limited v Moubarak (2009) 239 CLR 420 Allard v Jones Lang La Salle (Vic) Pty Limited [2014] NSWCA 325 Cavalier v Pope [1906] AC 428 Harris v Northern Sandblasting Pty Limited(1997) 188 CLR 313 Miller v Galderisi [2009] NSWCA 353 Shoalhaven City Council v Pender [2013] NSWCA 210 State of NSW v Fuller-Lyons [2014] NSWCA 424
Category:	Principal judgment
Parties:	Denis Johnston (Plaintiff) State of New South Wales (Defendant)
Representation:	Counsel: C Hart (Plaintiff) W Reynolds (Defendant) Solicitors: Bilbie Dan Solicitors Norton Rose Fulbright Australia
File Number(s):	13/272371
Publication restriction:	Nil

Judgment

1. The plaintiff claims damages for personal injuries suffered by him on 8 September 2010 at premises at Stockton. There is no issue that the defendant, via the Department of Housing (“the Department”, also referred to as “Housing NSW”) owned the relevant property and had leased it to the plaintiff pursuant to a residential tenancy agreement.

2. The plaintiff alleges that he sustained an injury whilst attempting to fit a light globe in an exterior light fitting at the premises. To do that task, he was standing on a chair, and as he fitted the globe into its socket, the globe exploded, causing him to twist and suffer a severe injury to his right knee.

3. By an Amended Statement of Claim the plaintiff pleads the following particulars of negligence:

“Particulars of Negligence

1. By its servants and/or agents, failing to take reasonable steps to ensure the light fitting was safe for use by the plaintiff.

2. By its servants and/or agents, instructing the plaintiff to fit a light globe in the fitting, when it was unsafe to do so, due to the fitting being damaged by lack of maintenance of the premises.

3. By its servants and/or agents, causing the electrical power to be turned onto to the fitting when the plaintiff was attempting to fit the glove, such action being contrary to a written warning sign placed over the switch by the plaintiff, alternatively, failing to ensure the electrical power was switched off.

4. By its servants and/or agents, failing to provide any warning to the plaintiff of the danger to which he was exposed.

5. By its servants and/or agents, failing to carry out such inspections as were reasonably required to ensure the elimination of the risk of the light fitting being unsafe and likely to cause injury when used.

6. By its servants and/or agents, directing the plaintiff to stand on a chair to fit a globe to the fitting, such direction being likely to cause a risk of injury to the plaintiff insofar as the defendant, through its servants, was aware that the plaintiff suffered significant mobility problems and should have known that the activity posed a significant risk of the plaintiff being injured.”

The Defendant’s Defence

4. The defendant denies that it was negligent and pleads that the injury, loss or damage suffered by the plaintiff was caused by the plaintiff’s own fault and contributory negligence. The particulars of that allegation are contained in paragraph 11 of the Defence as follows:

1. “failure to have regard for his own safety;

2. placing himself in a position of peril when he knew or ought to have known that his actions may cause injury;

3. placing himself in a position of peril when he knew or ought to have known that standing on a chair and attempting to change a light bulb without any instruction, assistance or supervision may result in injury.”

5. The trial occurred on 26, 27 and 30 March on circuit at Newcastle District Court. This judgment is delivered without the benefit of a transcript of the proceedings, however, the oral evidence is summarised below. The plaintiff relied also on a bundle of documentary evidence.

The Plaintiff’s Evidence

6. The plaintiff was a 63 year old disability pensioner who had a good work record until he suffered a back injury at work in 1988. He had rented the relevant premises for a period of 10 years, however, there was a history of complaints by him to the Department about the derelict condition of the house. In 2008 an inspection of the premises had been conducted by an officer of the Department, a Mr Merritt.

7. No repairs were carried out following that inspection and the plaintiff made an application to the Consumer, Trader & Tenancy Tribunal (“CTTT”) seeking orders for a complete inspection of all necessary repairs and maintenance to the house, an order to facilitate the repairs required and an order for compensation for the “mistreatment and suffering” caused by Housing NSW over a 10 year period.

8. The proceedings were listed for hearing on 3 September 2010, at which time the CTTT made an order by consent that the landlord, Housing NSW, would undertake a thorough inspection of the premises on or before 10 September 2010 at a time arranged with the plaintiff, for the purpose of assessing any necessary repairs. The matter was then stood over for a new hearing date to be allocated.

9. A letter was sent by the Department to the plaintiff dated 3 September 2010, arranging for an inspection to take place on 8 September 2010 between 10am and 12pm. The plaintiff did not receive that letter until after two officers employed by the Department visited him on the morning of 8 September 2010. They were Ms Therese Luschwitz and Mr Stephen Clarke. The plaintiff gave evidence that the officers came inside the premises into the kitchen and observed a sign that the plaintiff had placed over a light switch, adjacent to an exterior door, which read “Don’t use light switch!”. That sign is shown in a photograph on page 34 of exhibit A.

10. The plaintiff gave evidence that he had placed the sign over the switch because of electrical faults in the house which had been caused by water in the ceiling. According to the plaintiff, when the lights were switched on it tripped the fuses in the fuse box and caused the power in the house to cut out. He had told Mr Merritt of that problem in 2008.

11. The plaintiff gave evidence that he observed Mr Clarke to ignore the sign and switch the light switches on. That caused an internal light in the premises to flicker inside and the plaintiff said to Mr Clarke, words to the following effect:

“Now that you have disregarded the sign and that light has worked, would you like me to get a light globe to check the outside light?”

Mr Clarke said:

“Yes, go ahead.”

12. At the time this conversation took place, Ms Luschwitz was in the kitchen. The plaintiff obtained a new light globe and gave evidence that he went through the exterior door and positioned a chair under the light fitting on the eave and stepped up on the chair. At that time, Ms Luschwitz was in the kitchen with a camera and Mr Clarke was outside the premises standing beside the plaintiff. The plaintiff had the new globe in his left hand. He reached up and put it into the light fitting, or “batten”, at which point it shattered and exploded. He then said:

“I whipped around. I rotated my upper body to the right and heard a huge ‘snap’. The remnants of the light globe were in my left hand. I bent down to grab the chair and tried to stop myself falling. I was holding the back of the chair with both my hands. When I heard the ‘snap’ I had a tremendous pain in the right side of my knee.”

13. At this point, the plaintiff gave evidence that he heard Ms Luschwitz scream out loudly, “Are you alright, are you alright?”. He observed Mr Clarke to have “a very alarmed look on his face”.

14. The plaintiff gave evidence that he cleaned up the mess with a dustpan and brush and he observed the two officers to go to the side of the house to look at the power box. They left approximately five minutes later.

15. For the rest of that day the plaintiff gave evidence that he was in terrible pain. After approximately three hours a swelling developed on the right side of his knee. He had no phone and could not call an ambulance. The following morning he travelled by bus, ferry and taxi to see his local medical officer, Dr Norman Low, at Mt Hutton and was sent for an x-ray. The plaintiff was referred to an orthopaedic surgeon, Dr Gill, but as a public patient he had to wait first for an MRI, which was undertaken on 27 March 2012. That MRI revealed:

“1 Chronic rupture of the anterior cruciate ligament. No definite evidence of a meniscal tear.

2 Thinning of the articular cartilage over the medial aspect of the medial femoral condyle with early sub-articular cystic change. Signal changes at the proximal tibio fibular joint.

3. Thinning of the articular cartilage over the medial facet of the patella.”

16. The plaintiff underwent an arthroscopy of his right knee on 25 May 2012, and was found to have a ruptured ACL and degenerative changes of his medial meniscus with no frank tear.

17. Following the accident the plaintiff was not able to manage at home and was given assistance by his brother Terry. Terry Johnston was called to give evidence about the level of care provided, following which, the plaintiff abandoned his claim for past gratuitous care and assistance. It was clear that the evidence did not support a claim that would pass the threshold in s 15 of the Civil Liability Act 2002 (“CLA”). The plaintiff maintained a claim for commercial care and assistance into the future.

18. The plaintiff also maintained a claim for future treatment including the cost of a knee replacement procedure. He gave evidence that if offered such a procedure he would undertake it in a private hospital. He also gave evidence that he had increased his medications for pain including Codalgin Forte and Mobic, however, he was taking those medications for his pre-existing back injury and he was careful about the amount of medications he consumed. He was also required to see Dr Low a little bit more often than he otherwise had.

19. In cross-examination the plaintiff said that the sign over the light switches in the kitchen had been in place for between 6-12 months. When asked why he put it there, he gave evidence that when they were used, the switches cut off power in the power box due to an electrical fault and that it was unsafe to use the switches. He had experienced the power cutting out on many occasions and had therefore put the sign up. The plaintiff could not remember who took the globe out of the exterior light fitting under the eave. He had no idea of whether he took it out, but said that he had suffered many years of problems with electrical damage to the house. When he had moved into the premises there was not one light in the whole place and he had to get it checked out by the Department. That inspection had taken place some 15 years beforehand and a number of light fittings had to be replaced. He very rarely replaced the light fittings with new globes. He gave evidence that he had no idea that the light globe would shatter when he tried to put it in.

20. It was put to the plaintiff that the conversation referred to above with Mr Clarke did not occur, with which he disagreed. It was put that Mr Clarke did not accompany the plaintiff outside, to which he replied “he most certainly did. He stood beside me.” He then said:

“Mr Clarke was right next to me when I was on the chair.”

21. It was suggested to him that Mr Clarke did not turn on the light switches behind him, to which he replied

“He most certainly did. Very abruptly.”

22. It was also suggested to the plaintiff that Ms Luschwitz did not call out “Are you alright, are you alright?” The plaintiff said that she did. He agreed that he lowered himself off the chair.

23. The plaintiff agreed that before this accident he had a need for a carer. He had a live-in carer at one stage, however, that arrangement ceased when he accused her of being a thief. He had not replaced her because the house was not in good enough condition for another person to live in. The reason for that was that the Department would not carry out the necessary repairs. The plaintiff agreed that he had had a back problem for 20 years and gave evidence that physical activities aggravated his back pain occasionally. These included lifting and bending. He denied that Mr Clarke had looked at the sign in the kitchen over the light switch and said “What is that for?” He also denied that Mr Clarke had told him that he should phone and report it to the maintenance section of the Department.

24. It was put to the plaintiff that he said “I’m not going to do that. It is costly and it will take too much of my time.” The plaintiff denied saying those words.

Other Evidence in the Plaintiff’s Case

25. The plaintiff relied on a report from Mr Duncan Kerr, a licensed electrician with 30 years electrical experience in domestic and commercial electrical installations, service and support. The report was dated 6 February 2015, and referred to an inspection of the premises by Mr Kerr, and set out a number of assumptions which were established by the plaintiff’s evidence, if it was to be accepted. Mr Kerr opined that the cause of the light globe exploding was not entirely clear. As it was an exterior fitting and exposed to weather, it was his opinion that the light fitting “would have been compromised and unsafe for use without repair, and it would not be advisable for someone to change the globe in that fitting unless that person was a licensed electrician who had turned off the mains power to the premises and had satisfied themselves of the safety of the fitting”.

26. He also stated that it was “unadvisable to fit a light globe unless the power to a fitting is switched off, otherwise there would be a risk of electrocution or explosion as in this case”. Further, accepting the plaintiff’s evidence, he was delegated the task of fitting the light globe by Mr Clarke and in doing so, an unsafe system of work was used by having the plaintiff stand on a chair. An alternative or safer course of action would have been to use a stable ladder. Thus, there was a foreseeable risk of injury to the plaintiff which could have been prevented by checking the safety of the light fitting by a licensed electrician and the use of a ladder to perform the work. Mr Kerr was not required for cross-examination.

27. The balance of the bundle comprised documents concerning the proceedings in the CTTT, communications between the plaintiff and the Department, departmental records, the photographs taken on inspection and the medical evidence upon which the plaintiff relied.

The Defendant’s Evidence

28. The defendant called Ms Therese Luschwitz, who was an administrative clerk in the Department of Housing. She went to the plaintiff’s home on 8 September 2010 with a technical officer, Mr Stephen Clarke, as a result of the proceedings in the CTTT. She had with her a camera, a notebook and a pager. She gave evidence that she arrived at approximately 10am, following which, she and Mr Clarke met the plaintiff. She took the photo of the sign over the light switch but did not touch it. She did not see Mr Clarke touch it, nor did she see Mr Johnston touch it. She had commenced their inspection on the outside of the premises and then walked through the laundry door. Once inside, she went to the kitchen. At no stage did she see the plaintiff do anything with a chair and she did not see him standing on a chair. She denied calling out to the plaintiff “Are you alright?” Ms Luschwitz said she was present with Mr Clarke and the plaintiff most of the time she was there and overheard a conversation in which Mr Clarke advised the plaintiff to contact the Housing Department maintenance section. She heard the plaintiff say “that light switch is broken you cannot touch it.”

29. Mr Clarke responded “How long has it been broken? Have you contacted the Housing Contact Centre to get them to fix it?” The plaintiff then said “I’ve called them so many times, they’re not going to fix it.” Mr Clarke then said “You need to contact the Housing Contact Centre and register the maintenance issue and they will organise someone to come up and fix it.” She and Mr Clarke left the premises together.

30. In cross-examination Ms Luschwitz agreed that she was there to take photos to accompany Mr Clarke’s inspection notes. She understood that the Department had been directed by the CTTT to inspect and she was there to photograph the complaints the plaintiff made regarding maintenance of the premises. Those photographs were in evidence.

31. It was put to her that her evidence that Mr Clarke advised the plaintiff to contact the maintenance section was a lie because the very reason she and Mr Clarke were there was to do a building inspection to ascertain what repairs were required. She agreed that it would be incredible for Mr Clarke to use those words when they were there for that very purpose.

32. Ms Luschwitz was cross-examined about an email she had sent to Catherine Quinn on 17 September 2010 (exhibit A, pg 42) in which she had stated:

“I do remember, that during our inspection inside he started to bend over and walk with a limp and when asked what had happened he said that he has a bad back, again at NO time did I witness a fall or trip.”

33. That answer was given in response to an email from Catherine Quinn in which she asked Ms Luschwitz “Did he fall in your presence?”

34. Ms Luschwitz was also asked about a report she had prepared (exhibit A, pg 47) in answer to the question “Is electricity connected and working?”. She had answered “Yes.” She denied that Mr Clarke had turned on the switch in the laundry and when asked whether she was told by the plaintiff “I’ve had difficulty with these switches because they switch the circuit breaker”, she said “I don’t know.”

35. Ms Luschwitz was asked about a letter from Marsh Pty Limited written on behalf of the Department of Housing dated 2 June 2011. In that letter, the author stated:

“We have been informed that a staff member from the Department of Housing advised you against changing the light bulb at the time of the incident.”

36. Ms Luschwitz did not have any idea where that information had come from. It was totally incorrect. It was put to her that that letter demonstrated that the evidence she gave was a lie, which she denied.

37. She denied also the plaintiff’s version of the accident when it was put to her in detail.

38. The defendant called Stephen Clarke who was a Senior Client Service Officer employed by the Department of Housing. He visited the premises on 8 September 2010, following the agreement of the Department of Housing in the CTTT. He gave evidence that the inspection of the premises started inside and they then went outside, to the back of the house and then back inside. Ms Luschwitz was with him all of the time, the plaintiff was present, but not with him all of the time. He went outside for “a couple of seconds”.

39. Mr Clarke gave evidence that he saw the sign over the light switches in the laundry. He said that he did not touch, lift or interfere with it at all. The reason was that he was not an electrician.

40. He denied ever seeing a chair on the landing outside the laundry door or seeing the plaintiff standing on a chair. He did not see anyone lift up the sign on the light switch or anyone activate the light switch. He did not turn on the light switches in the house, nor did he see anyone else do that. He did not see any lights flickering in the house. He denied the conversation alleged by the plaintiff in his evidence, namely, that he said words to the effect to Mr Clarke, “Now that you have disregarded the sign, do you want me to insert a new light globe?”, to which Mr Clarkes responded “Yeah go ahead.” That conversation was denied.

36. Mr Clarke gave evidence that when he left the property he was not aware that the plaintiff had “fallen off a chair”. He did not hear Ms Luschwitz call out “Are you alright?”, and nor did he ever see Mr Johnston take a chair out through the laundry door.

37. Mr Clarke’s said that he had asked the plaintiff about what was wrong with the light and why had he not called the Maintenance Centre about it, to which the plaintiff had replied “That’s a waste of bloody time. I’d be on the phone for hours and get nowhere.” Mr Clarke then said to the plaintiff “You need to call the call centre. That needs to be fixed.” When asked whether the plaintiff had said to him, “The light outside keeps blowing because of it”, he had a vague memory of it only.

38. In cross-examination, it was put to Mr Clarke that his evidence concerning the conversation with the plaintiff when he asked why he hadn’t call the service centre was a lie, which he denied. It was put to him that that was the exact purpose for which he was at the premises and that it was unbelievable that he would say that to the plaintiff, which he denied. The reason was that it was Mr Clarke’s evidence that the plaintiff was obliged to report the electrical fault to the call centre.

39. Mr Clarke was asked whether the light switch had become part of the schedule of works. A schedule had been created on 14 September 2010 by him. He was asked whether item 60 on the schedule (exhibit A, pg 25) related to the light fitting outside the laundry. It read:

“ELE 007 00 remove & dispose of existing & supply & fix batten holder. White or colour to match.”

45. Mr Clarke said he was not exactly sure where that item related to. It was put to him that it could only relate to the light fitting outside the laundry as that was the only photograph taken of an electrical fault. It was put to him that the plaintiff had shown him the light fitting outside, to which he said “No.” He did not recall discussing with Ms Luschwitz any email received by her from Catherine Quinn.

46. The plaintiff’s version of the inspection and accident was put to Mr Clarke, which he denied. He also denied that the plaintiff was limping quite badly before he left the premises. When put to him that the light switch and batten were the only electrical items on the schedule of works and that there were no other electrical issues with the premises, Mr Clarke said “I can’t remember.”

47. When the letter from Marsh Pty Limited dated 2 June 2011 was put to Mr Clarke, namely, that a staff member from the Department advised the plaintiff against changing the light bulb at the time of the incident, he denied telling anyone that.

Legal Principles

48. In determining liability, the CLA applies here. The duty of care owed by a landlord to a tenant has been identified as a duty to take reasonable care to avoid foreseeable risk of injury – see Harris v Northern Sandblasting Pty Limited (1997) 188 CLR 313. In that case, the High Court held that the landlord was responsible for a defect in premises of which it knew or ought to have known. In so doing, it did not follow the House of Lords decision in Cavalier v Pope [1906] AC 428. In the High Court decision, the Justices gave separate and differing reasons for the existence of a duty of care and its breach. The plurality agreed that the landlord had discharged its duty of care in the circumstances in that case by engaging a qualified contractor to fix an electrical problem whose competence it had no reason to doubt.

49. At page 343 of the judgment, Dawson J said:

“However, that duty of care was that which arises under the ordinary principles of the law of negligence, namely, a duty to take reasonable care to avoid foreseeable risk of injury to the respondent. The nature and extent of the duty in the particular instance depends upon the circumstances of the case.”

50. Here, the plaintiff has not pleaded the duty of care relied on, only pleading that the defendant was negligent. However, the defendant did not deny that it owed a duty of care to the plaintiff, and the trial was conducted on the basis that it did owe such a duty. The defendant submitted that the duty owed by a landlord to a tenant is either:

“(a) A duty to take such reasonable care as the circumstance dictate for those persons who, themselves, were taking reasonable care for their own safety (authorities and citations omitted), or

(b) A duty to take reasonable care to avoid foreseeable risk of injury. On this statement of principle, the owner/occupier does not owe a higher duty to make the premises as safe as reasonable care could make them (see New South Wales Department of Housing v HumeBHNF Donna Hume & Anor [2007] NSWCA 69 per McColl JA at [88]).” (sic).

51. In New South Department of Housing v Hume, all three Justices of Appeal agreed on the characterisation of the duty of a landlord by McColl JA at [88] as follows:

“… 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 (observing that the latter phrase appears to have been intended to adopt Gaudron J’s test (Jones v Bartlett at [92])), that the occupier of premises is only required to take such care as is reasonable in the circumstances.” and “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”, a test applied in this court in Wilkinson v Law Courts Limited and Owners Strata Plan 30889 v Perrine.”

52. The defendant submitted on the facts here, there was no breach of any relevant duty and further that the injuries, loss or damage suffered by the plaintiff, if any, were caused by the plaintiff’s own contributory negligence. Given the vulnerability of the plaintiff as a disability pensioner, and the background of a long lease of the premises where an inspection had been carried out by the defendant at the commencement of the lease and in 2008, and it was aware of the allegation of numerous defects in the property as a result of the CTTT proceedings, it was clear that the defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury to the plaintiff.

53. The scope of that duty of care extended to ensuring that the plaintiff was not exposed to a risk of harm during the inspection of the premises for the purpose of complying with the orders made by the CTTT requiring NSW Housing to inspect the property and to effect necessary repairs. It must have been clear to those carrying out the inspection on behalf of the defendant, that the electrical system operating the exterior light was defective given the sign that the plaintiff had placed over it and the fact that the light fitting was missing. The determination of whether there was a breach of that duty of care is a factual determination for which findings have to be made on the conflicting evidence given on behalf of the plaintiff and Ms Luschwitz and Mr Clarke on behalf of the defendant, as to the critical factual matters.

54. In an action for negligence, the plaintiff bears the onus of proof of establishing negligence on the balance of probabilities. In State of NSW v Fuller-Lyons [2014] NSWCA 424, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) said at [31]:

“In an action for negligence, the plaintiff fails unless the evidence supports a positive inference implying negligence. This inference must arise “as an affirmative conclusion from the circumstances proved in evidence (Jones v Dunkel (1959) 101 CLR 298 at 304). The facts proved ‘must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is mere matter of conjecture” (ibid at 304-5 citing Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 at 5). The Court is not authorised ‘to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied’ (Jones v Dunkel at 305; see Luxton v Vines [1952] HCA 19; 85 CLR 352 at 359-360 and recently Minogue v Rudd [2013] NSWCA 345 at [66]; Curtis v Harden Shire Council [2014] NSWCA 314 at [18]; McLennan v Nominal Defendant [2014] NSWCA 332 at [86] and Coote v S & P Jackson Pty Ltd [2014] NSWCA 385 at [22].”

55. Thus, to establish that the defendant was negligent, the plaintiff has to adduce evidence supporting a positive inference implying negligence on the part of the defendant, an inference which could be said to arise as an affirmative conclusion from the evidence and which was established to the reasonable satisfaction of the judicial mind. In Shoalhaven City Council v Pender [2013] NSWCA 210, McColl JA said at [47]:

“The evidence had to rise above the level of conjecture, could not be based on possibilities but had to be established as a matter of probability, and had to do more than give rise to conflicting inferences of equal degrees of probability (referring inter alia to Luxton v Vines (1952) 85 CLR 352 and Jones v Dunkel (1959) 101 CLR 298 at [304]).”

Findings of Fact

56. Based on all of the evidence, I make the following findings of fact:

1. The plaintiff had lived for approximately 10 years in the property which was leased by the defendant which had inspected the premises at the commencement of the lease and in 2008. No repairs had been carried out.

2. The property was defective in numerous ways and the plaintiff was forced to make an application to the CTTT in 2010 to have the Department carry out an inspection to assess what repairs were required to be carried out.

3. The hearing in the CTTT in 3 September 2010 was adjourned on the plaintiff and the Department coming to an agreement that the Department would inspect the premises on or before 10 September 2010 for the purpose of assessing any necessary repairs.

4. On 8 September 2010 Ms Luschwitz and Mr Clarke from the Department visited the plaintiff’s premises to carry out that inspection without notice to the plaintiff.

5. That inspection was carried out for the purpose of assessing the necessary repairs. That led to Ms Luschwitz taking the photographs of those parts of the house requiring repair and Mr Clarke preparing the schedule of works, including the exterior light batten.

6. The schedule of works dated 14 September 2010 included item 60 which was the electrical work required for repair of the exterior light outside the laundry door and the light switch.

7. I find that on 8 September 2010 the plaintiff was injured in the way in which he gave evidence, namely, in the course of inserting a light bulb into the batten under the eave of the premises, outside the exterior laundry door. The reasons for that finding are as follows. First, on the following day, when the plaintiff was examined by Dr Low, he told Dr Low what had happened to him. Dr Low’s report dated 5 March 2010 (exhibit A, pg 83) records the history as follows:

“On 9/9/2010 I first saw Mr Johnston with a history that on 8/9/10 two technical officers from the Department of Housing came to his rental residence for an inspection. According to the Johnston the dwelling was in an extreme state of disrepair despite his various attempts to get some work done by the Department of Housing on many occasions. On inspecting an outside light fitting with no light globe fitted, one officer said to Mr Johnston to try the outside light fitting. Mr Johnston took his advice and managed to obtain a new curly light globe kept in his kitchen and attempted to insert a new light globe into the fitting himself. Whilst standing and inserting this curly light globe into the fitting he experienced a sudden shattering of the light globe in many pieces in his left hand resulting in his loss of balance, twisting his upper body and impacting his whole body weight on to his stationary right leg with a loud crack emanating from his right knee.”

This history is entirely consistent with the plaintiff’s evidence. Secondly, I do not accept the evidence of Mr Clarke, and the evidence of Ms Luschwitz, to the extent that she corroborated this part of Mr Clarke’s evidence, to the effect that he told the plaintiff “You should report the defective light switch to the maintenance section of the Department.” The reason I do not accept that evidence, is that the very reason for Mr Clarke’s inspection of the premises, by order of the CTTT, was for him to assess the premises and to ensure that necessary repairs were carried out. It was for that reason he drafted the works schedule on 14 September 2010 which included item 60. Further, I do not accept Mr Clarke’s evidence that he was not aware of what part of the premises item 60 related to. It clearly related to the exterior light fitting outside the laundry door, and he must have known that. I find that Mr Clarke was generally an unreliable witness who was not doing his best to assist the court.

8. I accept the plaintiff’s evidence of the conversation that he had with Mr Clarke during the inspection. I accept the plaintiff as a witness of truth who was doing his best to give his evidence in a forthright manner. On page 39 of exhibit A is a copy of a letter written on the plaintiff’s behalf by Dr Low dated 9 September 2010. That letter was for the purpose of advising that the plaintiff required respite care, but would be attending the resumed hearing in the CTTT on 12 October 2010. It recorded that on 8 September 2010 the plaintiff sustained a serious knee injury in his attempt to replace a light globe at the premises.

9. On that letter the plaintiff had written to the Area Director of Housing NSW and had set out what had happened on 8 September 2010 during the inspection of his home by Mr Clarke and Ms Luschwitz. The plaintiff wrote:

“’The surprise’ inspection was totally inadequate and NOT thorough. Otherwise ladders would have been brought along and I would NOT have suffered my right knee injury.

I have a sign at a light switch ‘Not to use because of water in the ceiling, shorting out power, but Stephen insisted on using switches’.

10. I accept that the plaintiff believed that Mr Clarke was advising him to fit the new globe after Mr Clarke had used the switch. The plaintiff did so by taking a chair outside and standing on it.

11. Dr Low’s letter dated 9 September 2010, and the plaintiff’s notation on it, was forwarded to the Department by the plaintiff, together with a letter dated 17 September 2010 (exhibit A, pg 41). In that letter the plaintiff advised the department that he had suffered a serious knee injury on 8 September 2010 at 10.30 – 11am, and that he was holding Housing NSW responsible for the injury. It was that letter that gave rise to the emails referred to above from Catherine Quinn to Therese Luschwitz on 17 September 2010 and Ms Luschwitz’s reply (see exhibit A, pgs 42-43).

12. I find that the plaintiff’s injury occurred whilst Ms Luschwitz and Mr Clarke were at the premises. The concession made by Ms Luschwitz that she saw the plaintiff limping, was consistent with the injury to his knee (and on the balance of probabilities, consistent with her saying to him “Are you alright?”)

13. The plaintiff had also provided a consistent version of his injury in his Incident and Claims Report completed on 15 November 2010 (exhibit A, pg 5).

14. Further, I find that someone from the Department had advised the insurance broker, Marsh Pty Limited, that the plaintiff had changed the light bulb against their advice. That information, contained in the letter dated 2 June 2011 (exhibit A, pg 69), could only have come from either Ms Luschwitz or Mr Clarke. No other officer of the Department was present at the time. It confirms also that the injury resulted when the light bulb broke and the plaintiff moved suddenly, consistent with the plaintiff’s version of events.

Determination

57. I am satisfied that the defendant owed the plaintiff a duty to take reasonable care to avoid foreseeable risk of injury. The defendant did not take issue with that. Rather, the defendant’s case was based on first, that the injury did not occur as the plaintiff alleged, based on the evidence of Ms Luschwitz and Mr Clarke, and secondly, that the injury was not foreseeable.

58. In applying ss 5B and 5C of the CLA, I find that the risk of harm here was the risk of injury to the plaintiff in fitting a light globe to the batten shown in the photographs in exhibit B, under the eaves of the premises, outside the exterior laundry door. The premises were clearly defective, and the plaintiff had sought relief from the CTTT to have the defendant inspect and rectify the necessary repairs, including the light fittings. The plaintiff had placed a sign over the exterior light switches in the laundry clearly prohibiting their use because of an electrical problem which short circuited the power to the house. The defective power supply gave rise to a risk of harm that he would suffer injury by attempting to install a new light fitting. I find that he was encouraged to do so by the departmental officer, Mr Clarke.

59. In applying s 5B of the CLA, I find that that risk of harm was foreseeable and was clearly not insignificant. The question to be determined is whether a reasonable person in the position of the defendant would have taken precautions against that risk of harm. Section 5B(2) of the CLA provides as follows:

“5B(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

1. The probability that the harm would occur if care were not taken,

2. The likely seriousness of the harm.

3. The burden of taking precautions to avoid the risk of harm, and

4. The social utility of the activity that creates the risk of harm.”

60. In the circumstances here, where the plaintiff had identified an electrical problem with the light in question and its switch, which caused the fuse to trip, thereby cutting off power to the rest of the house, there was a high probability that harm would occur if care was not taken in relation to the light fitting. The plaintiff had gone to the trouble of placing a sign over the switches themselves, warning not to use the switch. The likely seriousness of the harm that may arise was also quite high given that electricity was involved. The burden of taking precautions to avoid the risk of harm on the Department was therefore relatively low, and the social utility involved in the Department providing the accommodation concerned would also not sound against determining that a reasonable person in the defendant’s position should take precautions against that risk of harm. Having regard to all of those matters, and the factual findings that I have made, I find that the defendant did breach its duty of care to the plaintiff.

61. The onus is on the plaintiff to establish causation pursuant to s 5E of the CLA. Pursuant to s 5D that involves two matters, namely, factual causation and also whether it comes within the scope of liability – see Strong v WoolworthsLimited (2012) 246 CLR 182 and Adeel’s Palace Pty Limited v Moubarak (2009) 239 CLR 420. The relevant test for factual causation is whether “but for” the breach of duty of the defendant the plaintiff would have suffered injury. In the circumstances here, I am satisfied that factual causation is made out. I am also satisfied that it lies within the scope of the defendant’s liability as landlord of the premises.

Contributory Negligence

62. The defendant owed a duty of care to the plaintiff to avoid foreseeable risk of injury. In determining contributory negligence the court has to determine whether the plaintiff acted in disregard for his own duty of care to take care for his own safety. Given the findings made above, I find that the plaintiff attempted to change the light globe by standing on a chair on the advice of the departmental officer. The plaintiff had long experience with the defective state of the premises and had installed the sign over the light switch prohibiting their use. However, when Mr Clarke switched the light switches, and the power did not cut off, the plaintiff was led to believe it was not defective. It was clearly a spur of the moment decision by the plaintiff to offer to insert the globe and in the course of doing so it shattered, thereby causing him to react and suffer the injury to his right knee. In those circumstances, the plaintiff’s actions were akin to momentary inadvertence or inattention. However, he should have ensured that the light switch was off in carrying out that task, given his knowledge of the defective nature of the switches. For that reason, I find him to be 25% liable for his injuries by way of his own contributory negligence.

Damages

63. The medical evidence supports the contention that the plaintiff suffered a serious injury to his right knee. On examination by Dr Low on 9 September 2010, the plaintiff’s right knee was quite swollen with reduced range of movement and extreme pain on movement. Notwithstanding than an urgent referral was made to an orthopaedic consultation at Royal Newcastle Centre on 29 September 2010, as the plaintiff was a public patient, he had to wait until 9 March 2012 to be eventually seen by Dr Gill, orthopaedic surgeon. He then underwent the MRI scan referred to above and an arthroscopy of his right knee was performed by Dr Gill on 25 May 2012. Dr Low reported that Dr Gill has commented that the plaintiff may need a full joint replacement in the foreseeable future, and the plaintiff gave evidence that he would undertake that procedure.

64. The plaintiff was examined by Dr Pillemer, orthopaedic surgeon, on behalf of the defendant, however, no report was served. It may therefore be inferred that any opinion of Dr Pillemer would not have assisted the defendant’s case. I therefore accept the opinions expressed by Dr Low in his report dated 5 March 2014. It is clear that the plaintiff has suffered since this injury a painful and disabled right knee and that his condition is deteriorating. I also accept that the total right knee reconstruction is now urgently needed as expressed by Dr Low.

65. In assessing the plaintiff’s damages for non-economic loss pursuant to s 16 of the CLA, it is clear that the plaintiff, who is on a disability pension in respect of a back injury suffered at work, had a number of other medical problems. He had a history of post-traumatic stress disorder and a delusional disorder engendered by excessive alcohol use. However, the plaintiff had overcome his alcohol addiction and had been sober for a period of some 10 years. He had therefore suffered no further delusional disorder since 2005.

66. The effect of his knee injury, given his pre-existing back injury, has been significant in restricting the plaintiff’s mobility in all of his life’s activities. The plaintiff relied on the following amended schedule of damages (MFI 4):

Non-economic loss – 28% of most extreme case	$69,000.00
Past out of pocket expenses – HIC charge	$2,721.00
Future out of pocket expenses @ $5 weekly recurrent expenses	$3,735.00
Knee replacement	$27,980.00
Future care and services – 2 hours per week @ $30 per hour	$44,820.00
Total	$148,256.00

67. The defendant submitted that the plaintiff should be assessed for damages for non-economic loss at no greater than 23% of the most extreme case, given the pre-existing arthritic changes in his knee.

68. The defendant did not dispute the amount claimed for past out of pocket expenses, nor did it dispute the cost of the knee reconstruction, however, the defendant submitted that such procedure would be unlikely to be undertaken immediately and therefore the amount should be discounted, as it was unclear when the procedure would occur.

69. In respect of the claim for future paid commercial care, the defendant submitted that there was a paucity of evidence adduced to support that claim. Prior to the alleged accident, the plaintiff had been in need of full time care and was in receipt of a disability pension. The defendant submitted that the only reason the plaintiff did not have a full time carer at the time of the accident was because she had been dismissed because of dishonesty and he had not engaged another carer because he considered his home unfit for a carer to co-habitat with him. However, the need for full time care had been established and therefore no additional care could be created by the subject accident. In the meantime, the plaintiff’s past and current care needs have been fulfilled by his brother and there was no evidence that such care would not continue into the future, relying on Miller v Galderisi [2009] NSWCA 353 and Allard v Jones Lang La Salle (Vic) Pty Limited [2014] NSWCA 325.

Assessment of Damages

70. Given the seriousness of the plaintiff’s injury, notwithstanding the pre‑existing degenerative condition of his knee joint, and his constellation of other pre‑existing factors which led him to be on a disability pension, the injury to the plaintiff’s right knee has had a significant impact on all of his life’s activities, limiting his mobility. Having regard to his age, and those pre‑existing factors, which I have taken into account, I assess the injury at 26% of a most extreme case. Applying the Table in s 16, that leads to an award of damages of $46,000.00.

71. I accept that the plaintiff had treatment expenses of $2,721.00. For the future, I do not accept the plaintiff should be awarded a weekly amount for the rest of his life for the increased cost of medications and supervision by Dr Low. Rather, that can be provided by way of a lump sum, added to the cost of the reconstructive surgery the plaintiff requires as a matter of urgency. I therefore award the plaintiff the sum of $30,000.00 for future treatment expenses.

72. With respect to the plaintiff’s claim for future paid care, I find that the plaintiff’s need for such care has been established by the evidence given by his brother, Terry Johnston. Whilst that has been provided gratuitously, his brother is of a similar age and has other commitments. Whilst I am satisfied that the plaintiff’s need for commercial care is established, I find that he would have come to need that care eventually as part of his overall regime for care. I therefore find that the plaintiff is entitled to 2 hours of paid care per week at $30 per hour and have discounted the award to approximately half of life expectancy and rounded it out to $25,000.00. I therefore find the plaintiff is entitled to the following damages:

Non-economic loss	$46,000.00
Treatment expenses	$2,721.00
Future treatment expenses	$30,000.00
Future care	$25,000.00
Total	$103,721.00

73. As I have found, the plaintiff was guilty of contributory negligence to the extent of 25% of his award of damages. The damages will be reduced by 25%, and there will be a verdict and judgment for the plaintiff in the sum of $77,790.00.

Orders

74. I make the following orders:

1. Verdict and Judgment for the plaintiff in the sum of $77,790.00.

2. Defendant is to pay the plaintiff’s costs of the proceedings.

3. The exhibits are to remain with the file for 28 days.

4. If the parties are to apply for a special costs order, such application is to be made by way of Notice of Motion and affidavit in support in accordance with the UCPR on 7 days notice to the other side.

**********

Decision last updated: 23 April 2015