Edwards v Curtis

[2020] NSWDC 926

District Court

New South Wales

Medium Neutral Citation:

Edwards v Curtis [2020] NSWDC 926

Hearing dates:

5, 6, 7 February and 13 May 2020

Date of orders:

15 May 2020

Decision date:

15 May 2020

Jurisdiction:

Civil

Before:

P Taylor SC DCJ

Decision:

(1)   Judgment for the defendant.

(2)   Plaintiff to pay the defendant’s costs, subject to any application made by email to my associate in the next 14 days.

Catchwords:

NEGLIGENCE – personal injury – unit complex – tenant – fall - stairs – lighting – handrail - knee

Legislation Cited:

Civil Liability Act 2002, s 5B, s 5D

Limitation Act 1969, s 50C, s 50D

Category:

Principal judgment

Parties:

William Edwards (plaintiff)
Kerry Frances Curtis (defendant)

Representation:

Counsel:
Mr M McAuley (plaintiff)
Mr S E McCarthy (defendant)

Solicitors:
Paul A Curtis & Co Solicitors (plaintiff)
McCabe Curwood (defendant)

File Number(s):

2018/93137

Publication restriction:

None

Judgment

A. Introduction

1. William Edwards fell down some stairs in the unit complex where he lived in December 2013. He attributes this fall to defective lighting and the absence of a second handrail. He sues the owner, Kerry Curtis, for damages.

B. Issues

2. The issues that arise in the proceedings are:

1. What was the cause of Mr Edwards’ fall.

2. Was the stairwell lighting defective in December 2013.

3. Did Ms Curtis breach a duty of care in respect of the lighting, or the handrail, or in any other respect.

4. Was the claim statute-barred.

5. What is the extent of Mr Edwards’ injury, disabilities and damages.

C. Background

3. Mr Edwards became a tenant of a residential apartment in Allawah pursuant to a Residential Tenancy Agreement dated 24 October 2013. The Agreement included a secure car space in the basement garage to the building. Access to the garage from Mr Edwards’ apartment involved about a 10-metre walk outside from the front door of the apartment to a door that opened to a landing and stairwell leading down to the garage. The stairwell had a handrail on the right-hand side as one descended a flight of stairs comprising 11 steps to a landing, then to the right a further 4 steps to the garage floor. The handrail continued from the top, around to the right to the bottom of the steps.

4. Above the upper landing was a circular light fitting as well as a white and green exit light displaying a green running man. The garage door, about three car spaces away from the foot of the stairs, was made of a “largely transparent” ^[1] material that allowed light to enter the garage during daylight. ^[2] There was also garage lighting, including adjacent to the bottom of the stairs and a light near the garage door. ^[3] So far as the evidence reveals, the lights, and in particular the round light above the stairwell, were permanently on when Mr Edwards had previously travelled down the stairs; he did not need to “switch the light on”. ^[4] Mr Edwards at least daily travelled this route to access the garage where his car was parked. ^[5]

   1. T103/19-24.

   2. T102/46.

   3. Exhibit F, 25/6/19, p 4, Figure 9; Plaintiff’s Court Book (PCB), p 140.

   4. T36/43-37/2.

   5. T36/36-41.

5. On 21 December 2013 Mr Edwards left his apartment to go to the garage. After entering the external door, and walking across the one metre landing, he commenced to descend the stairs. The door closed behind him. Whilst descending the first section of stairs, Mr Edwards fell, injuring his left knee and hitting his head.

6. After being dazed and making a partial recovery, he struggled back up the stairs by means of the handrail, made his way to a nearby hotel ^[6] where he called a taxi and was taken to St George Hospital.

   6. T38/38-39/20.

7. The hospital notes recorded an account of the incident to which I will return. Mr Edwards had an x-ray of his left knee, and the radiology report indicated the likelihood of a “patellar tendon disruption”. Mr Edwards was discharged the same day.

8. On 10 January 2014 Mr Edwards saw Dr Brett Gooley and had an MRI of his left knee indicating a “[f]ull thickness tear of mid patellar tendon” and a “[p]artial thickness tear of proximal lateral collateral ligament”. ^[7] It also noted “[s]evere degenerative PF compartment joint disease”. ^[8] At about this time or shortly after, Mr Edwards had two steroid injections into his left knee. ^[9]

   7. Exhibit C, p 15; PCB, p 70.

   8. Ibid.

   9. T41/11-21.

9. On 7 October 2014 Dr Gooley referred Mr Edwards to Dr Bradley Seeto, orthopaedic surgeon. Mr Edwards had another MRI on 19 December 2014 showing “patellar tendon repair with diffuse scarring”.

10. On 14 January 2015 Dr Seeto reported:

“I reviewed William today with the repeat MRI scan of his knee. The patellar ligament has amazingly healed with marked thickening. Since my last review, William is actually experiencing much less patellofemoral instability with uneven ground. He is happy to persist with nonoperative treatment. I have asked him to represent at any time in the future, should his symptoms deteriorate to discuss knee replacement surgery” ^[10]

10. Exhibit C, p 42; PCB, p 97.

11. Mr Edwards did not again complain of a problem with his left knee until 2018, and shortly thereafter these proceedings were commenced.

D. The cause of Mr Edwards’ fall

12. Mr Edwards gave oral evidence that as he entered the stairwell to go down to the carpark, as was his usual practice he went to the left-hand side. He said, “I was going down the stairs and the door just closed. And as I went to step, it just seemed like everything was in darkness, and the next thing I was - I felt my body heading towards the bottom”. ^[11] Mr Edwards said his “arm cushioned the blow” of going “headfirst into the wall down the bottom” but that he was “dazed after that”. He then used the handrail on the left to ascend the stairs.

    11. T37/22-24.

13. Mr Edwards gave further evidence of the darkness in cross-examination:

“Q. Again, look at the green and white light. Do you know one way or another whether or not the green and white light was illuminated at the time you had your fall?

A. I - look, I - all I know is that when that door closed, I was in darkness. And that's the main reason why I overstepped around about the second - second rung down. I don't - I didn't - I don't really look up and see whether or not the light's on. The light's on, you just - you just walk down the stairs, you know.

Q. After it had occurred - and you described yesterday, crawling back up the stairs to see your mother - did you observe one way or another whether the green and white

A. No, I didn't.

Q. light was on?

A. I didn't. I - I wasn't looking. No.” ^[12]

12. T102.

14. The cross-examination continued:

“Q. Mr Edwards, I need to formally put this to you that contrary to your recollection of what happened over six years ago, the lights in the stairwell were in fact operational at the time you had your accident.

A. I don't know how you can say that 100% because you know, was - was - was there - there was no one else there except me.

Q. I want to suggest to you also, sir, that at the time you descended the stairwell on the day of your accident that there was ample illumination for you to see where you were going.

A. (No verbal reply)

Q. Do you accept that?

A. No, I don’t.” ^[13]

13. T110-111.

15. Mr Edwards gave the following evidence in re-examination:

“Q. Mr Edwards, you were asked by Mr McCarthy a question, or questions, suggesting that you blacked out and your recollection of the lack of lighting was due to you having been unconscious. When you are going back upstairs after you recovered from your fall, what did you notice about the lights?

A. I’ll be honest. I didn’t even look at the lights.

…

Q. What did you - were you able to see as you were returning

A. Yeah. Oh, yeah. Yeah. I was able to - yeah. I wasn’t

Q. No. I

A. unconscious.” ^[14]

“Q. but before you got to the door, was there any light to your observation?

A. I - I honestly can’t recall. I don’t think there was but - I’m not absolutely certain. I - well, I pulled myself up along the rail, so I guess there had to be something there. It might have been just the little man running

Q. No, I’m not asking you to speculate. I’m just asking you about your

memory. What do you remember?

14. T111-112.

…

A. Yeah, I - I really didn’t look - look up at the light, I’m sorry.” ^[15]

15. T112-113.

16. Accordingly, Mr Edwards’ account was that being in darkness was the reason he overstepped at about the second step, although he did not look up at the lights. He accepted that he could not recall if there was any light as he made his way back up the stairs using the handrail.

17. Mr Edwards was unable to provide any evidence to corroborate his account of the darkness. The most contemporaneous record of the event is that contained in the St George Hospital notes, which reads:

“1400 today was hurrying down a flight of stairs when he skipped a stair and when he landed on his left leg it gave way causing him to fall forward into a wall. He broke his fall with outstretched hands and rebounded into the adjacent wall, hitting his head.

On the ground for a minute or so feeling confused.

Then mobilised to shop nearby to get ice.” ^[16]

16. Exhibit C, p 10; PCB, p 65.

18. Mr Edwards implicitly accepted that he did not tell the hospital about the darkness. When asked in cross-examination about the hospital note, the following evidence resulted:

“Q. You didn’t tell anyone at the hospital, did you, that the accident had occurred in circumstances where you were plunged into darkness and couldn’t see where you were going.

A. I don’t think they asked me.” ^[17]

17. T110/1-4.

19. Mr Edwards was asked if he accepted that he was in a hurry. Again, inferentially, he accepted. He responded:

“The word hurry, it - the way you’re saying it means that I was running down the stairs. If that’s - if that’s what you’re saying, no.” ^[18]

18. T110/21-22.

20. The following exchange occurred:

“Q. I want to suggest to you that in your haste to descend the stairs, you missed a step.

A. The darkness was the - was what - what caused the step.

Q. I want to suggest

A. There’s no way - there’s no way that - there’s no way that the hurry substitutes for the darkness, let me tell you.” ^[19]

19. T110/29-35.

21. Mr Edwards was asked about his loss of consciousness. He said:

“What I can remember is floating in the air and heading towards the stairs, and - and that - that - that’s something that - that’s in my mind, was in my mind then and it’s in my mind now. That - that doesn’t change.”

22. Mr Edwards accepted that light came into the carpark from the large grated carpark door, but disagreed that as a result the stairwell had some natural light. ^[20] He accepted that there was no problem with light as he walked through the door and he could see clearly as he walked across the one-metre landing. ^[21] He said it went dark when he was about “three or four” ^[22] stairs down.

    20. T103.

    21. T104.

    22. T105/41.

23. Mr Edwards met with Dr Gooley and Dr Seeto in the period from the day following the accident until early 2015. Neither doctor recorded an account of the incident.

24. Mr Edwards recounted that the owner of the apartments, Bill Curtis, the deceased husband of the defendant, Kerry Curtis, was someone he “used to have a drink with … at the Allawah Hotel”. He continued:

“So, I would always wait if there was a problem, but - the only problem I ever had was my mother getting locked because there was a dead latch on the inside, and she had dementia. So, at - that was the only reason I’ve ever - ever, ever contacted him.” ^[23]

23. T107/19-24.

25. Mr Edwards accepted that he never contacted the agent about the lighting, saying “Well, it was - well, always on before”. ^[24] And after his fall, Mr Edwards “had other things on my mind”. ^[25] He accepted, again inferentially, that he never told anyone about a problem with his left leg until he told his solicitor, Paul Curtis, in 2018 saying:

“A. I didn’t - I didn’t think it was my - my duty of care, quite frankly. You know, I’m - I’m just - I’m just a person renting a flat.

Q. Is this the case, Mr Edwards, that you didn’t actually bring to the fact, as you saw it, that the light has been defective on 21 December 2013 to anyone’s attention until you saw Mr Curtis, in 2018?

A. What - why - why was it my responsibility?” ^[26]

24. T107/45.

25. T107/49.

26. T108/20-26.

26. Mr Edwards also swore two affidavits. The affidavits related to the limitation period, to which I will come, but they were read without objection, and became evidence in the proceedings.

27. Mr Edwards’ first affidavit dated 18 March 2019 recounts under the heading “Injury”:

“I was injured on 21 December 2013. I suffered a fall down a set of stairs in a unit block at…and did not feel on planet earth. Immediately following the injury, I could not walk with my left knee, and when I tried to, I had pain.”^[27]

27. At [7].

28. In a second affidavit dated 19 December 2019, Mr Edwards said:

“On the day of the injury, namely 21 December 2013, I went to the left-hand side of the stairs because I have been accustomed all my life when walking along a footpath, or down a set of stairs, to go to the left-hand side.

After I fell down the stairs on 21 December 2013, and when I was at the bottom of the stairs and managed to gather my wits sufficiently to be able to get up, I noticed that there was no light in the area.

With great difficulty I went up the stairs and went out the door.” ^[28]

28. At [3]-[5].

29. In a request for particulars, in evidence, Mr Edwards was asked:

“Please clarify whether the Plaintiff alleges that there was no source of light provided in the stairwell or that lights were available although the lights were no on, or that the lights were not working?” ^[29]

29. Exhibit C, p 47; PCB, p 102 at [1.5(e)].

30. His particulars in response record that Mr Edwards:

“did not notice that the safety light was on until about one third down the stairway when the automatic door seemed to accelerate towards the later stage of closure, leaving the plaintiff in total darkness”. ^[30]

30. Exhibit C, p 54; PCB, p109 at [1.5(e)].

31. The reference to the safety light being on and the plaintiff being in total darkness appears inconsistent and leaves open the possibility of the safety light being on.

32. In these circumstances, I have Mr Edwards’ account in the witness box of the darkness. It was not a compelling account because he concedes he did not look at the lights, he says he fell on the second step but did not notice darkness until the third or fourth step, his particulars appear to imply that the safety light was on, his first affidavit makes no mention of the darkness and his second indicates that he only noticed the absence of light after he got himself up after his fall.

33. Against Mr Edwards’ account I have his concession that he never mentioned the darkness to the landlord with whom he would have a drink, or to anyone else, including his two treating doctors until 2018. And the account recorded in the hospital notes indicates a different reason for this fall, namely his hurrying down the stairs and skipping a step.

34. I also note that it seemed to be common ground that the closing of the door behind Mr Edwards as he entered the stairwell would significantly diminish the light.

35. Each party retained experts to examine the lighting. There was little difference between them. Mr Edwards’ expert, Mr Burns, reported that “with the lighting operational there is excellent illumination of the stairs at the top landing” and Dr Cooke, retained by the defendant, agreed and found this quality of lighting extended to all the stairs. Dr Cooke found the lighting to be 15 times that required by the standard. ^[31] Mr Burns did not conduct tests of the stairwell with the lights out whereas Dr Cooke did have the power turned off, although this produced immediate emergency lighting. There was no evidence of whether this emergency lighting was in place in 2013.

    31. Exhibit 1, p 8 at [22].

36. Mr Edwards accepted that the lights were operating at all times before his fall, including on the day before his fall ^[32] and the week after. ^[33] As he said, “It was only that particular day when…it just went dark, and that was it.” ^[34]

    32. T101/20-28; T106/18.

    33. T106/31.

    34. T108/30.

37. Taking all these matters into account, I am not persuaded by Mr Edwards’ account. In particular, I am not persuaded that:

1. the lights were out where Mr Edwards was in the stairwell;

2. there were some defects in the stairwell lighting; or

3. Mr Edwards’ fall was caused by sudden darkness in the stairwell.

38. I accept that caution must be exercised in relying too heavily on hospital notes. But those notes are corroborated by Mr Edwards’ implied acceptance of them, that he was hurrying and did miss a step and that he did not complain of the absence of lighting. The absence of such a complaint by Mr Edwards for three years after the fall, in the context of the less than compelling evidence of Mr Edwards, causes me to conclude that the more likely cause of the fall was Mr Edwards hurrying down the stairs. Whether Mr Edwards’ recollection of darkness was because of the diminished direct sunlight when the door closed, because he was dazed or semiconscious immediately following his fall, or because of the imperfection of his memory after several years, is a matter I need not determine.

E. Breach of duty

39. As I was not persuaded that there was some defect in the stairwell lighting at the time of the fall, there could be no breach or unreasonable failure to remedy a broken, inoperative or defective light. Mr Edwards submitted that there was an unreasonable failure to regularly inspect the lighting.

40. Section 5B of the Civil Liability Act 2002 precludes a finding of negligence unless the risk was foreseeable, not insignificant and a reasonable person would take the suggested precaution.

41. Whilst I accept that a lighting failure would increase the risk of injury in the stairwell, the evidence did not enable me to conclude that a risk of lighting failure was foreseeable. Of course light bulbs can fail, but there was no evidence that the particular lighting had the capacity to fail, or that both lights in the stairwell (and any emergency lighting) could simultaneously fail in circumstances where a person was descending the stairs and without using the handrail would continue to descend the stairs in darkness. The risk of the light failing, especially as there were two or three separate lights does not indicate that the risk was other than insignificant. There is no suggestion that weekly inspections, the level of regularity suggested to be reasonable care in Mr Edwards’ submissions, would make any measureable difference to the likelihood of lights going out whilst someone is descending the stairs and thus lessen the probability of harm.

42. There can be no factual causation as required by s 5D of the Civil Liability Act 2002 by the absence of lighting if the lighting was present. Further, even if I am wrong on the presence of lighting, factual causation remains a problem. Since the lights were operational the day before the incident, ^[35] the failure to conduct weekly inspections is likely not to have detected any lighting defect that occurred in the 24 hours or less before the incident. If the failure to inspect has likely had no impact on the harm, s 5D is not satisfied and causation could not be established.

    35. T101/25-28.

43. As to the absence of a second handrail, neither expert attributed this as a reasonable step to prevent the incident. ^[36]

    36. See e.g. Exhibit F, 25/6/19, p 12 at 5.0; PCB, p 148.

44. The stairwell was about 1250mm wide. A second handrail in such a stairwell was not required by any relevant standard. Its installation would lessen the width of the stairs impacting on their practicality for matters such as the installation and removal of furniture. In those circumstances, I am not persuaded that a reasonable person would install a second handrail in this stairwell.

39. Mr Edwards gave evidence to the effect that: “From what I can recollect, I tried to grab on the left-hand side the wall or whatever”. I find this recollection less than convincing in circumstances where Mr Edwards had used the stairwell at least 60 times before and knew that there was no handrail on the left. But had there been a handrail on the left he may have reached for it, providing some support for the factual causation finding required in s 5D.

40. On the other hand, Mr Edwards knew of the existing handrail to his right and might be expected to use it to secure his descent. That he chose not to even when hurrying only indicates the inutility of another handrail that he could similarly choose not to use. His evidence of that “I felt my body heading towards the bottom” is probably not probative either way.

41. In these circumstances, I reject the claim based on the absence of a second handrail as a breach of duty, rather than by reason of factual causation.

42. Mr Burns also opined that the accident could have been prevented by having glowing stair nosing, and LED and sensor activated lighting in the stairwell. None of these matters add safety to the stairs if the lights were operational as I have found. Nor was there any evidence to establish the s 5B considerations in respect of them. In particular, there was no evidence that the lighting suggested had any greater reliability than that installed.

43. For all these reasons, Mr Edwards has not established that there was any breach of duty by the landlord or that any alleged breach caused the injury.

44. Mr Edwards also relied on the residential tenancy agreement. ^[37] It imposed contractual obligations in respect of reasonable safety:

“18. The landlord agrees:

18.1 to make sure that the residential premises are…fit to live in, and

18.2 to make sure that all light fittings on the residential premises have working light globes on the commencement of the tenancy, and

18.3 to keep the residential premises in a reasonable state of repair…

18.5 to comply with all statutory obligations relating to the health or safety of the residential premises.” ^[38]

The substantive obligations upon the defendant in respect of these lights in this stairwell are not changed by the Agreement, and my finding of an absence of a causative breach remains.

37. Exhibit A.

38. Page 4.

F. Was the claim statute-barred?

51. Mr Edwards hit his left arm and head against the wall. He was “dazed”, ^[39] but made his way back up the stairs using the handrail, as he “couldn't stand” ^[40] on his left leg. He said he also “had a headache” and “was a bit sore around the [left] shoulder”. ^[41]

    39. T37/40.

    40. T38/18.

    41. T38/22-26.

52. I have earlier referred to how Mr Edwards was treated at the hospital and by two doctors in the period from December 2013 to early 2015. Thereafter, he took no steps to litigate until 2018.

53. By October 2014, Mr Edwards saw Dr Seeto and told him he “had no problems [on] the flat” but had “minor problems” on “[t]he incline part”. ^[42]

    42. T41/35-38.

54. In the period October 2014 to January 2015, Mr Edwards saw Dr Seeto three times and discussed a possible knee replacement ^[43] and decided to “have no further treatment”. ^[44] He thought he would get better. ^[45] He did not see Dr Seeto again for three years ^[46] by which time he was having “trouble” with “continuous pain”. ^[47] Not until in early 2018, when a friend told him to seek legal advice and recommended a lawyer, did he concern himself with legal proceedings.

    43. T41/42.

    44. T42/6.

    45. T42/9.

    46. See T42/10-20.

    47. T42/20-25.

55. The defendant relied on an entry in Dr Golley’s notes early in March 2018 before Mr Edwards saw his solicitors. The entry states “PUBLIC LIABILITY CLAIM FROM 4 YRS AGO FELL STAIRS. HOUSING COMMISSION APPLICATION FOR HOUSING”. ^[48] Mr Edwards denied any recollection of this entry or an earlier contemplation of a claim ^[49] and on this I accept his evidence. The entry might indicate earlier unexplained knowledge of a right to a claim, but, in view of Mr Edwards’ evidence, I would not rely upon it.

    48. Exhibit 1, p 262.

    49. T67/16-18.

56. By s 50C of the Limitation Act 1969, a claim must be commenced within three years, although this period is extended if some element of the claim is not discoverable. A claim against the owner of the unit complex after a fall in darkness was obvious and discoverable, and there was no fact discovered by Mr Edwards in 2018 that was not plain to him in 2013.

57. Mr Edwards asserts that he expected his injury to resolve. The evidence indicated that it did. If his injury had resolved, but reappeared later in 2018 and manifesting itself in a more substantial disability, then Mr Edwards may satisfy s 50D(1)(c) because he would in 2018 perhaps first “[know] or ought to know…that the injury was sufficiently serious to justify the bringing of an action on the cause of action”. As is indicated by my reasons below, I am not satisfied that the injury was of this type, and so in view of this finding s 50C does not assist Mr Edwards.

58. Mr Edwards also said^[50] that until 2018 he did not realise his injury was the fault of the owner of the units. If this is so, there is no explanation for it, other than he did not think there was anything defective in the stairwell until 2018. But he did not learn anything more about defects in the stairwell in 2018, on the evidence. This explanation militates against there being darkness in the stairwell. I do not accept that the defective lighting was something that could be regarded as discoverable in 2018, especially in view of s 50D(2), which provides:

“A person ought to know of a fact at a particular time if the fact would have been ascertained by the person had the person taken all reasonable steps before that time to ascertain the fact.”

50. Affidavit of William Edwards, 18/3/19, at [36].

59. In those circumstances, on the findings I have made about the circumstances of the fall and the injury, I accept that the action is statute-barred under the Limitation Act.

G. Injury and damages

60. There is no dispute that Mr Edwards did fall in the stairwell, and that he injured his left knee. He had treatment which extended over a period of about 12 months and his disability persisted for most of that time. By October 2014 at least he had no pain in the knee ^[51] which caused Dr Seeto in December 2014 to be reluctant to recommend a knee replacement ^[52] and by January 2015, just after the first anniversary of his fall, Dr Seeto reported that Mr Edwards’ knee “has amazingly healed”, ^[53] noted earlier.

    51. Exhibit C, pp 37-43; PCB, pp 92-98.

    52. Exhibit C, p 40; PCB, p 95.

    53. Exhibit C p 42; PCB, p 97.

61. In the following three years, Mr Edwards made no complaint about his knee. The reports indicate that he has many other challenges, as this exchange in cross-examination demonstrated:

“Q. So is this the summary of things? You’re 74. You’re nearly 75, is that

A. Yeah, yeah.

Q. 75 in April.

A. In April, yes.

Q. You were a very active man in your younger years, weren’t you?

A. Yeah.

Q. Played lots of sport?

A. Yeah, football and pro athletics.

Q. But this current situation, regrettably, for you is that you’ve got two bad knees.

A. Yeah.

Q. Two crook shoulders?

A. Yeah.

Q. One hip the causes you problems?

A. Yeah.

Q. A stiff neck?

A. Yeah.

Q. A bad back and is

…

WITNESS: Sorry, yes. Yes.

MCCARTHY

Q. And on top of all that, … knocked around a bit by this cancer problem, haven’t you?”

A. I - my - my ex-wife, God bless her, who passed away 16 years ago, when she went through chemo she went through hell. Chemo is a lot easier these days than what it was 16 years ago. And so, yeah, it knocks you around, yeah.” ^[54]

54. T96/14-97/2.

62. It is accepted that none of the other problems have any causal connection with the fall.

63. Mr Edwards attributed both his current right and left knee problems to the fall – the right knee because of favouring his left knee. There was no evidence to support this conclusion ^[55] and by the 2018 MRI of the left knee there was “no [patella] tendon tear”. ^[56] Mr Edwards' right knee in 2019 had “severe patella femoral arthritis”. ^[57]

    55. Cf Exhibit C, p 28; PCB, p 83.

    56. Exhibit C, p 21; PCB, p 76.

    57. Exhibit C, p 44; PCB, p 99, see also Exhibit 1, p 145.

64. Mr Edwards’ retained occupational physician, Dr Andrew Porteous, did not in clear terms attribute any ongoing problems to the fall although he does not deny it. His diagnosis is:

“The diagnoses are aggravation of degenerative change in the cervical spine, left shoulder and left knee.

There was also degenerative change in the left shoulder and left knee aggravated by the subject accident.” ^[58]

58. Exhibit C, p 6; PCB, p 61.

65. He says the patellar ligament tear “actually healed itself” ^[59] and thereafter the accident “[d]espite treatment, his symptoms continue”. ^[60] His report of 21 August 2018 gives a history up to 14 January 2015. Although he notes that “as his symptoms continued that [sic] he could see Dr Seeto again” ^[61] but there ended the history and no comment was made about the period from January 2015 until August 2018. He says there remains a 25% loss of the maximum use of the left knee, and implicitly asserts that Mr Edwards has a substantially reduced work capacity (not a head of damage claimed by Mr Edwards) and domestic capacity since the accident.

    59. Exhibit C, p 6; PCB, p 61.

    60. Exhibit C, p 5; PCB, p 60.

    61. Exhibit C, p 4; PCB, p 59.

66. As the recorded history demonstrates, Dr Porteous was uninformed about the three-year hiatus in complaints about the left knee. At least, he makes no reference to it in the history. Mr Edwards’ condition overall had worsened by 2018, as he stated in his affidavit,^[62] but not due to his fall.

    62. 18/3/19, at [18].

67. Associate Professor Michael Shatwell, who was retained by the defendant, concluded that Mr Edwards’ “ongoing problems are due to the degenerative joint disease in his hips, knees and shoulders and not due to the effects of the accident described” ^[63] even though the fall “exacerbated symptoms of underlying arthritic change in the knee”. ^[64] He thought Mr Edwards will require joint replacement surgery, starting with his right hip ^[65] and has a reasonable good prognosis. ^[66]

    63. Exhibit 1, p 152.

    64. Exhibit 1, p 150.

    65. Exhibit 1, p 151.

    66. Exhibit 1, p 152.

68. Associate Professor Shatwell reported that “the effects of the injury would have settled within a matter of a few weeks”. I am not persuaded that this is correct. It was a period of months, perhaps because of Mr Edwards’ age or propensity to engage in physical activity, but, in any event, it concluded before January 2015. So far as the consequences of the fall, Mr Edwards had recovered by January 2015.

69. In these circumstances, Mr Edwards’ damages for non-economic loss do not reach the 15% threshold under the Civil Liability Act, nor, in view of my finding on negligence and the cause of Mr Edwards’ disabilities, can there be any award for future medical expenses or domestic assistance. The past medical expenses are agreed at $2,625.65. This would be the amount of damages I would award if liability were established.

H. Orders

1. Judgment for the defendant.

2. Plaintiff to pay the defendant’s costs, subject to any application made by email to my associate in the next 14 days.

**********

Endnotes

Decision last updated: 18 November 2021