French v Van Der Giezen - [2013] WADC 173

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: FRENCH -v- VAN DER GIEZEN [2013] WADC 173

CORAM: SCOTT DCJ

HEARD: 22-26 APRIL & 3 MAY 2013

DELIVERED : 8 NOVEMBER 2013

FILE NO/S: CIV 2122 of 2011

BETWEEN: EDMUND FRENCH
Plaintiff
AND
ADRIAAN VAN DER GIEZEN
DELYS ARNA VAN DER GIEZEN
First Defendants
J M & E D MOORE PTY LTD (Formerly Charlotte Holdings Pty Ltd)
Second Defendant

Catchwords:

Plaintiff injured falling down stairs -Liability of occupier and builder - Turns on own facts

Legislation:

Occupiers' Liability Act 1985 s 4, s 5, s 8
Civil Liability Act 2002 s 5

Result:

Plaintiff's claim dismissed

Representation:

Counsel:

Plaintiff:     Mr D M Bruns
First Defendants           :     Mr D R Clyne
Second Defendant         :     Mr J R B Ley

Solicitors:

Plaintiff:     Shine Lawyers
First Defendants           :     SRB Legal
Second Defendant         :     Jackson McDonald

Case(s) referred to in judgment(s):

Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479
Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33
Department of Housing and Works v Smith [No 2] [2010] WASCA 25
Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181
Fisher v Stapley [2005] WASCA 16
Fitzpatrick v Job [2007] WASCA 63
Gannon v Gannon (1971) 125 CLR 629
Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540
Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174
Husher v Husher (1999) 197 CLR 138
M R & R C Smith Pty Ltd T/as Ultra Tune (Osborne Park) v Wyatt [No 2] [2012] WASCA 110
Maclenan v Segar [1917] 2 KB 325
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254
New South Wales Department of Housing v Hume [2007] NSWCA 69
New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19
Onetech Pty Ltd v Shaw [1999] WASCA 289
Owners Strata Plan 30889 v Perrine [2002] NSWCA 324
Phillis v Daly (1988) NSWLR 65
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Shoalhaven City Council v Pender [2013] NSWCA 210
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45
Stannus v Graham (1994) Aust Tort Reports 81‑0293
The Town of Port Hedland v Hodder [2012] WASCA 212
Voli v Inglewood Shire Council (1962‑1963) 110 CLR 74, 84
Watson v George (1953) 89 CLR 409
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1980) 146 CLR 40

SCOTT DCJ:

Introduction

The first defendants were at all material times the registered proprietors of 279 Pinjarra Road, Mandurah (premises) and carried on business as electrical contractors as proprietors of Peel Electrical Services.
The second defendant was a registered builder.
During 1996 and 1997 the second defendant constructed alterations to the premises (works) which included three offices on the first floor and a staircase comprising 14 stairs from the ground floor to the first floor (staircase).
In or about early June 2010 Elm Park Investments Pty Ltd t/as Ed French and Associates (Elm Park) of which Mr French was a director agreed to lease the middle of the three offices being unit 5 (office) as and from 1 July 2010.
On 28 June 2010 Mr French was moving items into the office and whilst descending the staircase he fell and suffered significant injuries (accident).
In this action he claims damages for personal injuries as a result of the alleged negligence of the defendants.

Determination

For the reasons below I am not satisfied that either of the first defendants or the second defendant were in breach of the duty of care owed to Mr French and were thereby at fault.
In any event I am not satisfied even if there was fault on the part of the first and/or second defendants, that such fault was causative of harm to Mr French. In the premises Mr French's claim is dismissed.

Issues between the parties on the pleadings

Between plaintiff and first defendants

As between Mr French and the first defendants the issues arising on the pleadings as argued at trial are:
(a)The nature of the duty of care owed by the first defendants to Mr French. That is, whether the duty was to ensure that the premises were safe for visitors to the premises (asserted by Mr French) or was a duty to take reasonable care in respect of foreseeable risks (asserted by the first defendants).
(b)Whether the accident was caused by the negligence of the first defendants in:
(i)failing to ensure that there was a handrail on both sides of the staircase or alternatively a central handrail in accordance with sD2.17 of the Building Code of Australia (BCA); and/or
(ii)failing to ensure adequate slip resistance on the top of the step.
(c)Whether any injury, loss and damage sustained by Mr French was the result of:
(i)an inherent risk arising from the nature of stairs (s 5P of the Civil Liability Act 2002) (CLA); and or
(ii)an obvious risk arising from the nature of stairs (s 5F and s 5N of the CLA).
(d)If Mr French suffered injury loss and damage due to the negligence of the second defendant whether the provisions of s 6 of the Occupiers' Liability Act 1985 (OLA) applied.
(e) If the first defendants were liable whether Mr French was contributorily negligent.

Between plaintiff and second defendant

(a)The nature of the duty of care owed by the second defendant to Mr French.
(b)Whether the accident was caused by the negligence of the second defendant in:
(i)failing to ensure that there was a handrail on both sides of the staircase or alternatively a central handrail in accordance with s D2.17 of the relevant BCA and/or Plan D95-026 prepared by Drafting and Design Den dated 14 December 1995 and approved by the City of Mandurah (approved plan) and/or the building contract; and/or
(ii)failing to ensure adequate slip resistance on top of the step.

(b)If the second defendant was liable, whether Mr French was contributorily negligent.

Contribution proceedings – first defendant against second defendant

(a)The terms of the building contract and relevantly
(i)whether the second defendant was obliged to construct the staircase in accordance with the approved plan and in compliance with the relevant Australian Standards and/or BCA;
(ii)whether the second defendant installed the handrail; and
(iii)whether the second defendant was obliged to undertake the tiling works.

(b)Whether the second defendant breached the building contract by failing to construct a handrail on both sides of the staircase or a balustrade down the middle of the staircase in accordance with the approved plan and/or in accordance with the BCA.
(c)If the first defendants were liable to Mr French whether the first defendants are entitled, as against the second defendant to:
(i)damages for breach of the building contract; or
(ii)an indemnity against the first defendants' liability to Mr French alternatively contribution.

Contribution proceedings ‑ second defendant against first defendant (notice of contribution and indemnity dated 18 June 2012)

If the second defendant was liable to Mr French whether the second defendant is entitled as against the first defendants to an indemnity against the second defendant's liability to Mr French alternatively contribution.

The premises - Alterations to the premises – contract between first defendants and second defendant

The first defendants purchased the premises in November 1987. There was an old house on the property which was demolished and they built an office with a house attached. Their business was operated from the premises.
When the zoning changed to commercial in or about 1996 they decided to extend the premises to incorporate additional offices.
They had plans drawn up by Mr Campbell of Drafting and Design Den. Mr Van der Giezen said that there were about three or four plans drawn.
In about 1996 he had a conversation with Mr Moore of the second defendant with whom he had dealt in the course of business, over about three to four years.
Mr Van der Giezen said that Mr Moore was a reputable builder and he was quite happy with the way he conducted his business. He said that he went to see Mr Moore, gave him plans drawn by Drafting and Design Den and asked him for an indication of costs. Mr Moore said he could build it for around $220,000 and Mr Van der Giezen told him to go ahead. No formal contract was entered into.
The alterations included the addition of a first floor comprising three offices to which access was gained by the staircase from the foyer.
The landing at the top of the staircase, the staircase and the foyer were to be tiled.
In addition there was a single staircase on the first floor to the kitchen and toilets and between the landing and the car park.
He said that he gave Mr Moore the latest plan which was the approved plan (exhibit 13). He said he did not retain a copy of that plan.
He said that he did not submit plans to the City of Mandurah. The approved plan bore indorsed approval dated 24 July 1996 in the following terms:
Approved subject to issue of Council building permit and compliance with Health Building Regulations and the Building Code of Australia.
He was referred to the approved plan in which there was reference to 'railing' on both sides of the staircase and 'balustrade' in the middle.
He said that he was not aware that that plan showed railings because he did not keep a copy of it.
He said that Mr Moore told him that it was the builder's responsibility to obtain the building licence.
During the course of the works Mr Van der Giezen said he liaised with Mr Rogers and later Mr Chaytor of the second defendant.
Mr Van der Giezen said that in the early states when the second defendant was doing ground works and footings Mr Rogers told him that he had lost the plans and asked him if he had another plan.
He said he gave Mr Rogers a plan (exhibit 18) and told him that it was not a current plan.
During the course of the works he and his wife occupied an office at the front of the premises and were on site all the time.
He said that towards the end of the works Mr Chaytor told him that there were no handrails shown on the plan and that in order to pass the shire and BCA requirements it needed handrails in respect to which he told Mr Chaytor to: 'Do what needed to be done to make it comply'.
When the works were completed there was a single handrail on each of the staircases.
The staircase from the foyer comprised 14 tiled steps bounded by a wall on either side. There was a handrail constructed on the right hand wall as one ascended.
There was no handrail on the other wall. The width of the staircase, wall to wall, was 2.240 m.
Photographs of the premises including the foyer, the staircase, the landing and the three offices are included in the report of Dr Ludcke (exhibit 10). On entering the front door of the premises the stairway is to the right and the three offices are at the top of the landing.
Mr Van der Giezen said that he purchased the floor tiles from Mandurah Slate and Tile and they were a commercial grade tile. The second defendant arranged for the tiles to be laid.
He said he received a facsimile dated 11 June 1997 from the City of Mandurah which was addressed to Mr Chaytor and which related to the final inspection (exhibit 16) which detailed the items to be attended to before handover.
There was no reference in that list of items to any further handrails being required.
He said that the three offices on the first floor were numbered 4, 5 and 6 although on the approved plan those offices were numbered 1, 2 and 3.
He said that he did not do a thorough inspection of the works on completion because he relied on the builder.
He did not recall having inspected the staircase from the foyer to the first floor because he had no reason to think that there was anything untoward.
He agreed that there had been a change in the approved plan from exhibit 18 with respect to the staircase being the inclusion of two railings and a balustrade. He said he did not notice that and said that he only looked at the alterations he had asked Mr Campbell to make.
Mr Van der Giezen said that he employed the second defendant to build the building and the draftsman to draw the building.
He said that there were various things that he wanted changed, which he asked to be changed and he gave close attention to those changes. But anything other than what he asked to be changed he assumed would remain the same.
Mr Van der Giezen said that he was not aware of the BCA because he was doing electrical works. He said he knew it existed but did not know the technicalities of it. He said he knew that there were regulations about such things as stairs.
Mr Moore said that he was the sole director of the second defendant which had carried on business as a building contractor for approximately 22 years.
He said he was first registered as a builder on 27 September 1979 and had worked as a builder since then.
When he initially spoke to Mr Van der Giezen he said that he would be interested in the work. They had a good working relationship and he offered to do the work on effectively a cost plus contract.
He said that he was provided with a set of drawings for a double storey extension at the rear of the premises.
He identified exhibits 13 and 18 as plans which were similar to what he had seen with respect to the project.
He said that there was no agreement, as he recalled it, with respect to who would do the tiling works. Those works were not, he said, shown on the plans.
From the job cost reports (exhibit 17) he was able to say that the last invoice, which was for maintenance work after the council's inspection, was that of 18 June 1997.
He was referred to an entry in the job cost reports (exhibit 17) to an invoice from Dougherty and Bilal Tiling Service dated 1 May 1997 in respect to which he said he was unable to say whether the tiling work referred to related to the tiling of the staircase.
He accepted that as a builder, he had responsibilities to make sure buildings erected were safe. He said he knew that members of the public were going to be using commercial buildings.
He was asked whether building practice was to have two handrails if the width of a staircase was 2 m or more to which he responded that that width would be 2 m or more between the handrails not the width of the stair tread.
When asked whether in circumstances where there was an area without a handrail of 2 m or more it was usual practice to have a handrail, he said 'that would be how you interpreted the Building Code of Australia'. He said in his experience that was not the normal practice in those days.

Findings as to contract between first defendants and second defendant

Neither Mr Chaytor nor Mr Rogers were called to give evidence by the second defendant. In addition no evidence was given by Mr Campbell. There was no explanation as to why they were not called and no evidence as to when and why the plans were amended so as to include the two handrails and the balustrade on the staircase.
Mr Moore did not play a hands‑on role in the building works. Mr Moore was not privy to the discussions which Mr Van der Giezen said he had with Mr Rogers and Mr Chaytor. It is reasonable to draw the inference that when Mr Van der Giezen had the conversation with Mr Chaytor about the lack of handrails to staircases being shown on the plan, Mr Chaytor must have been referring to a plan other than the approved plan - likely exhibit 18.
I found Mr Van der Giezen's evidence to be credible and I accept it. I accept that he had the conversations with Mr Rogers and Mr Chaytor to which he referred, that the second defendant submitted the approved plans to the City of Mandurah and sought and obtained the building licence. I accept Mr Van der Giezen's evidence that it was the second defendant which affixed the handrail on the staircase and caused the floor tiles purchased by the first defendants, to be laid.
In the second defendant's defence in the contribution proceedings the second defendant admitted that:
(a)It agreed with the first defendants to construct the works in accordance with building plans provided to it by the first defendants (par 4(b)).
(b)The building plans provided to it by the first defendants showed a staircase from the ground floor of the building to the second storey (par 5(b)).
(c)On 24 July 1996 the City of Mandurah issued Building Licence 39477 in which it authorised the alteration of the building on the premises in accordance with plans and specifications approved by the building surveyor at the City subject to the provisions of (inter alia) the BCA.
I am satisfied that pursuant to the building contract, as between the first and second defendants the second defendant was obliged to undertake the building works in accordance with the approved plan and the relevant BCA.

Alterations after mid‑1997

Mr Van der Giezen said they moved into unit 4 in August/September 1997. He said that there were further renovations to the premises in 2000, 2005 and 2006 which were approved by the City of Mandurah.
None of these renovations related to the staircase and surrounds.

Occupation of offices after completion of works

Mr Van der Giezen said that they operated their electrical business from unit 4 for about four years whereafter they moved into the undercroft car park where further offices were added.
He said that when he and his wife occupied unit 4 there were tenants in the other two units.
After they left unit 4 that unit was occupied by a school tutor who tutored children after hours. The tutor occupied that unit for about 10 years.
After completion of the works property valuers occupied the office (unit 5) for about four years and thereafter a weight loss business occupied that office for a number of years.
Unit 6 was occupied by a communications company, then a property valuer and then a semi‑government business.
He said that after the completion of the works Peel Electrical Services was the only tenant for a short time and after that the three offices were continuously occupied.

Entry of Mr French on premises - offer to lease and lease

In or about late May 2010 Mr French decided to lease the office.
In June he met with the agent Mr Matthews who told him that the office had been vacant for some time, it was nearly the end of the financial year so the lease could commence from 1 July 2010 but Mr French could have access to the office free of charge a couple of weeks before hand to move things in, in an orderly manner.
Mr French said that he signed an offer to lease in the first or second week of June and then got the keys from Mr Matthews to have access to the office. He paid a cheque for about $7,500 ‑ $8,000 pursuant to the offer to lease.
Subsequently, he said that he signed a lease agreement which was dated 29 June 2010 but it was signed by him before that date. He said that he would have signed the lease (exhibit 3) in or about the third week of June, perhaps the 15th or 16th.
He said that over the 10 days or so after he got the keys, he and his associate, Ms Curry progressively moved things into the office. The accident happened during the course of doing that.

Accident

On 28 June 2010 he and Ms Curry were finishing moving in and then left the premises at the end of the day. He went home and then realised that he had left his wallet at the office and so he told his wife he was going back to the office to get his wallet. He put his dog in the car and drove back to the office. He said this would have been about 6 – 6.30 pm.
Mr French said that when one walked through the front doors of the building there was a foyer and to the right was the staircase to the first floor on top of which was a landing. Then to the left there was the office.
He said that he opened the entry door to the premises and went up the right hand side of the stairs where there was a handrail. He said he went up the right side of the staircase because it was the closest point of entry.

He said that when he got to the top of the stairs he walked diagonally to the office. He went in, got his wallet and then locked the two office doors.
He said that he then walked across on an angle to the right hand side of the stairs which was the closest point from the office to the stairs.
He said:
I remember distinctly going to the right hand corner. I remember falling down the stairs. I don't remember how I slipped but I remember falling forward and trying to grab hold of something to stop me from falling.
He was asked whether he remembered where he was on the staircase when he began to fall:
Do you remember where you were on the staircase when you began to fall?‑‑‑Yes I was standing alongside the wall.
And were you at the top of the stairs or half way down or ‑ ‑ ‑?‑‑‑I was at the top of the stairs and I just – I suddenly slipped, lost my footing. I fell forward. I was trying to grab hold of something.
He said that he remembered he hit the floor. He said he was not quite unconscious. He tried to ring his wife on his mobile phone but he could not do so because it was full of blood. So he opened the front door (to the premises) and got out, locked the door, got into his car and drove home.
He said the last thing he remembered was that he was in the car and his wife said that they were going to the hospital and when he woke up he was in hospital.
In describing the accident I have, at this juncture, only referred to the examination‑in‑chief of Mr French.
I will consider his evidence and other evidence in detail when considering the issue of causation.

Liability – first defendants

Occupiers' liability – interaction of common law principles, the OLA and the CLA

OLA

The preamble to this Act states:
An Act prescribing the standard of care owed by occupiers and landlords of premises to persons and property on the premises.
4. Application of sections 5 to 7
(1)Sections 5 to 7 shall have effect, in place of the rules of the common law, for the purpose of determining the care which an occupier of premises is required, by reason of the occupation or control of the premises, to show towards a person entering on the premises in respect of dangers —
(a)to that person; or
(b)to any property brought on to the premises by, and remaining on the premises in the possession and control of, that person, whether it is owned by that person or by any other person,
which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier of premises is by law responsible.
(2)Nothing in sections 5 to 7 shall be taken to alter the rules of the common law which determine the person on whom, in relation to any premises, a duty to show the care referred to in subsection (1) towards a person entering those premises is incumbent.
5. Duty of care of occupier
(1)Subject to subsections (2) and (3) the care which an occupier of premises is required by reason of the occupation or control of the premises to show towards a person entering on the premises in respect of dangers which are due to the state of the premises or to anything done or omitted to be done on the premises and for which the occupier is by law responsible shall, except in so far as he is entitled to and does extend, restrict, modify or exclude by agreement or otherwise, his obligations towards that person, be such care as in all the circumstances of the case is reasonable to see that that person will not suffer injury or damage by reason of any such danger.
…
(4)Without restricting the generality of subsection (1), in determining whether an occupier of premises has discharged his duty of care, consideration shall be given to —
(a)the gravity and likelihood of the probable injury;
(b)the circumstances of the entry onto the premises;
(c)the nature of the premises;
(d)the knowledge which the occupier of premises has or ought to have of the likelihood of persons or property being on the premises;
(e)the age of the person entering the premises;
(f)the ability of the person entering the premises to appreciate the danger; and
(g)the burden on the occupier of eliminating the danger or protecting the person entering the premises from the danger as compared to the risk of the danger to the person.

CLA

The relevant provisions of the CLA are:
5A. Application of Part
(1)Subject to sections 3A and 4A, this Part applies to any claim for damages for harm caused by the fault of a person unless this section states otherwise.
(2)This Part extends to a claim for damages for harm caused by the fault of a person even if the damages are sought to be recovered in an action for breach of contract or any other action.
Division 2 of Pt 1A is headed: 'Duty of Care'. Section 5B is in the following terms:
5B. General principles
(1)A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless —
(a)the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known);
(b)the risk was not insignificant; and
(c)in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) —
(a)the probability that the harm would occur if care were not taken;
(b)the likely seriousness of the harm;
(c)the burden of taking precautions to avoid the risk of harm;
(d)the social utility of the activity that creates the risk of harm.
In Department of Housing and Works v Smith [No 2] [2010] WASCA 25, Buss JA gave consideration to whether the provisions of the OLA or the CLA reflect, supplant or modify the common law.
His Honour observed that at common law an occupier owes a duty of care to any person whose presence on the premises, either individually or as a member of a class, is reasonably foreseeable in respect of risks of physical injury arising out of the condition of the premises and cited Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479, 488; Phillis v Daly (1988) NSWLR 65, 76; Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 [17] and [102].
His Honour considered that despite the heading 'Duty of Care', s 5B of the CLA relates to a breach of a duty of care and does not modify or supplant the common law principles which determine whether a duty of care exists or not. See also Shoalhaven City Council v Pender [2013] NSWCA 210 [55] and Murphy JA in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [No 2] [2010] WASC 45 [456] – [458]
His Honour concluded that by s 4 of the OLA, s 5 has effect in place of the rules of the common law, for the purpose of determining the standard of care applicable to an occupier of premises. The criteria being embodied in s 5(1) and s 5(4).
In addition his Honour said that the criteria in s 5(1) and s 5(4) of the OLA must be read with s 5B of the CLA. In Smith [No 2] his Honour said that there was no relevant inconsistency between the criteria in these sections. That is, in my view, the position in this case.
In Smith at [87] his Honour said:
In my opinion, some well-established propositions concerning the notion of a 'reasonable person' and the standard of 'reasonableness' generally, under the common law of negligence, remain relevant in considering cases of alleged breach of duty by an occupier or lessor. First, the determination of what, if anything, a reasonable person in the occupier's or lessor's position would have done involves an assessment of what would have been reasonable and practicable for the occupier or lessor to have done. Secondly, this inquiry is not to be undertaken in hindsight. It is necessary to look forward to identify what a reasonable person would have done, not backward to identify what would have avoided the particular injury. Thirdly, contemporary standards within the community are relevant in determining what is reasonable in the circumstances of a particular case. Fourthly, reasonableness may require no response to a foreseeable risk that is not insignificant. Fifthly, the occurrence of a foreseeable risk, that was not insignificant, does not establish unreasonableness.
The other judges in Smith [No 2] (Pullin JA and Newnes JA) did not consider it necessary to decide this issue.
Whilst I do not know of a Court of Appeal decision in this state directly on point I respectfully adopt the rationale articulated by Buss JA in Smith [No 2].

Scope of duty owed by first defendants – Watson v George

Counsel for Mr French submits that by reason of the provisions of s 8(1) of the OLA the duty of care given by the common law to contractual visitors is preserved.
Section 8(1) provides:
8. Preservation of higher obligations
(1)Nothing in this Act relieves an occupier of premises in any particular case from any duty to show a higher standard of care than in that case is incumbent on him by virtue of any enactment or rule of law imposing special liability or standards of care on particular classes of persons including, but without restricting the generality of the foregoing, the obligations of common carriers and bailees.
That duty, counsel says, is to ensure that the premises are as safe as reasonable care and skill on the part of anyone can make them, relying on Watson v George (1953) 89 CLR 409, 415.
That is not the duty pleaded in the statement of claim (par 1(c)) in which Mr French alleges that the first defendants owed him a duty of care to ensure the premises were, at all material times, safe for visitors to the premises.
Mr French pleaded (statement of claim par 1(d)) that the first defendants, as lessors, entered into a verbal agreement with Mr French allowing him access to the premises prior to the commencement of the lease of the office to enable him to set up and prepare for commencement of his business. Counsel for Mr French submitted that the lease of the office was partly in writing and, to the extent of this verbal agreement, partly oral.
Counsel contended that he was thereby a contractual entrant.
In Watson v George the court accepted as a correct statement of the law what was said by McCardie J in Maclenan v Segar [1917] 2 KB 325 in which his Honour said:
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. … But … 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 … .
In Zaluzna the High Court held by majority that in an action for negligence against an occupier, it was necessary to determine only whether, in all the relevant circumstances, including the fact of the defendant's occupation of the premises and the manner of the plaintiff's entry upon them, the defendant owes a duty of care under the general principles of negligence.
Counsel for the first defendants submitted that following Zaluzna it was not necessary to consider whether a special duty was owed to a particular class of entrant and s 8(1) of the OLA has no application and said that the duty owed to Mr French is that prescribed by s 5(1) of the OLA.
That submission may be at odds with the decision in Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 in which the court said, with respect to the decision in Zaluzna:
However, the court had no occasion to examine, and did not examine, the principles of the common law governing the liability of an occupier of premises who agrees for reward to allow a person to enter the premises for some purpose. In this situation, it would not be right to treat Zaluzna and the decisions which preceded it … as authorities which overruled the principle established in Watson v George.
I know of no decision in which the effect of Zaluzna on the principle referred to in Watson v George has been finally determined.
However, even if the principle enunciated in Watson v George survived the decision in Zaluzna I do not consider that it applies in this case for the following reasons.
(1)The principle referred to in Watson v George does not relate to the nature of a tortious duty owed by an occupier to a contractual entrant. Rather, the proposition is that contractual entrants can rely upon a warranty implied into the contract with the occupier to the effect that reasonable care has been taken to ensure the premises are safe for their intended use. Because the basis of liability is contractual, the obligation falls upon the contracting party such that the nature of the relationship between the occupier and others upon whom the occupier may have relied to discharge the contractual responsibility would be irrelevant: The Town of Port Hedland v Hodder [2012] WASCA 212 [90].
(2)Neither the offer to lease or lease provides for early access to the office. In addition Mr French does not plead the express or implied term of any contract giving rise to any warranty in respect of which the first defendant is alleged to have been in breach.
(3)In any event I do not consider that Mr French was when the accident occurred, a contractual entrant. The lease was not an agreement which was partly in writing and partly oral. The arrangement for early access was merely a gratuitous licence for that limited purpose. It did not constitute a term of any contract which could give rise to an implied warranty of the nature to which Watson v George refers.
The standard of care owed by the first defendants to Mr French is that prescribed by s 5(1) of the OLA namely a duty to exercise reasonable care to avoid a foreseeable risk of injury arising out of dangers to the person due to the state of the premises or anything done or omitted to be done on the premises: Zaluzna (488); Smith [No 2] [55].

The risk of harm

It is necessary for Mr French to identify accurately the actual risk of injury he faced as it is only through the correct identification of the risk that this court can determine what a reasonable response to that risk would be. See Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330 [18], [59] (Gummow J); Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 [192].
The risk of harm in the case against the first defendants is the inherent danger posed to users of the staircase. Stairs, even properly constructed stairs inherently pose some degree of danger: Hanna‑Pauley v AMP Shopping Centres Pty Ltd [2007] WASCA 174 [29].
Having regard to s 5B(1) of the CLA that risk of harm was foreseeable and it was not insignificant.

Whether a reasonable person in the position of the first defendants would have taken the precautions asserted by the plaintiff in response to the risk of harm

In the statement of claim Mr French alleges that the first defendants failed:
(a)to ensure that there was a handrail on both sides of the stairwell or alternatively a central handrail in accordance with s D2.17 of the BCA; and
(b)to ensure adequate slip resistance on the top of the step.
Section 5(4) OLA and s 5B(2) CLA set out the factors to be considered when determining whether a reasonable person would have taken precautions against a risk of harm.
Liability is required to be determined prospectively, not retrospectively: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Bou Najem (2009) 239 CLR 420 [31]; Smith (No 2] [34] (Pullin JA); [87] and [88] (Buss JA).
In M R & R C Smith Pty Ltd T/as Ultra Tune (Osborne Park) v Wyatt[No 2] [2012] WASCA 110 Pullin JA observed 'it is unquestionably foreseeable that if a person falls down steps, he or she may be injured but the more important question in this case was whether the appellant exposed the respondent to an unnecessary risk of injury. Furthermore, not every foreseeable risk of injury requires some response to overcome it' [43].
In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA (Meagher JA and Rolfe AJA agreeing) said:
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.
In Wyong Shire Council v Shirt (1980) 146 CLR 40, Mason P said:
Foreseeability of risk of injury is not determinative of breach of duty of care … The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves to act reasonably and take care for their own safety when determining what is reasonable … .

BCA/Australian Standards

BCA

The parties agree that extracts from the BCA (exhibits 20.1 and 20.2) are applicable to the works. That is made clear by an excerpt from the relevant website (exhibit 20.3) which shows that these exhibits reflect the BCA in force during the works.
The statutory status of the BCA was considered by Pullin JA in Smith v Wyatt [59] – [68].
His Honour held that s 433 and s 433A of the Local Government (Miscellaneous Provisions) Act 1960 (WA) authorised the making of building regulations.
Those regulations were the Building Regulations 1989 (WA) in which reg 5(1) stated 'Subject to these regulations, the Building Code applies to and in relation to any building that can be classified according to use under Pt A 3 of that Code'.
Regulation 5(2) states:
Any alteration, addition, restoration or repair to a building should conform with the regulations'.
Regulation 3(2) provided that the expression 'the Building Code' meant the Building Code of Australia 1988 as amended from time to time.
The preface to the BCA is in terms that it provides a uniform set of technical standards for the design and construction of buildings and other structures throughout Australia.
His Honour observed that the BCA had statutory force and reflected the combined wisdom of a great many experts, representatives of statutory authorities and private organisations concerning building construction methods which provide for the amenity and safe use of buildings.
Of particular relevance to this case is s D2.17 of the BCA (relevant BCA) which, at the time the works were undertaken provided as follows:
…
Handrails
(a)Suitable handrails must be provided where necessary to assist and provide stability to persons using a ramp or stairway.
(b)Except for handrails referred to in (d), handrails satisfy (a) if they are –
…
(ii)located along each side if the total width of the stairway or ramp is 2 m or more; and
(iii)not more than 2 m apart in the case of intermediate handrails.
That provision was amended in the 1996 ed of the BCA (exhibit 21.1) (effective as and from 1 July 1997) in the following manner:
D2.17
Handrails
(a)Except for handrails referred to in D2.18, handrails must be —
…
(ii)located along each side if the total width of the stairway or ramp is 2 m or more; and
(iii)not more than 2 m apart in the case of intermediate handrails.
This amendment post‑dated the works in this case.
Compliance with the BCA may provide a guide to, but cannot dictate, the standard of reasonable care required in the circumstances: Smith v Wyatt [171] (Murphy JA) and the cases there cited.

Australian Standards

The provisions of AS/NZS 3661.1: 1993 and AS/NZS 4663: 2004 are to be considered in this action with respect to the adequate slip resistance of the tiling.
The Australian Standards do not have statutory force. Nonetheless, they are of evidentiary value.
To that end it has been regularly held that an Australian Standard comes to represent a consensus of professional opinion and practical experience as to sensible safe precautions and a standard of reasonable conduct: Fitzpatrick v Job [2007] WASCA 63 [94] citing with approval Onetech Pty Ltd v Shaw [1999] WASCA 289 [17];New South Wales Department of Housing v Hume [2007] NSWCA 69 [96] – [98].

Additional handrail or central handrail

There was no mandatory requirement in s D2.17 of the relevant BCA for the provision of handrails on each side of a stairway where the total width was 2 m or more or intermediate handrails.
The requirement in that section was to provide suitable handrails 'where necessary' to assist and provide stability to persons using a stairway. So the determination to be made pursuant to s D2.17 is whether a second handrail was 'necessary'.
In Smith v Wyatt, Pullin JA said [82]:
There are many reasons why a handrail might be necessary. In a retirement village or a hospital, it might be 'necessary' to provide handrails on certain stairs. If there was something about a set of stairs which made them dangerous, for example, if they were exposed to the weather and consequently slippery, then a handrail may be 'necessary'.
The particulars of negligence alleged by Mr French are intertwined. In considering the issue of 'necessity', and what may constitute a reasonable response to the risk of harm the adequacy of the slip resistance of the tiled surface on the top of the stairway is a relevant matter.

Dr Ludcke – additional handrail

Mr French placed reliance on the evidence of Dr Justin Ludcke who compiled a report dated 18 October 2011. Dr Ludcke is a qualified engineer and a member of the Ergonomic Society of Australia and was experienced in dealing with issues of engineering and ergonomics.
For the past 11 or 12 years he had worked as a consultant for InterSafe in which he had investigated incidents where people had been injured in public places and work places including on stairways.
In addition he had been involved in the audit of many work places so as to manage work place risks and to enable insurers to understand and appreciate risks of premises in respect to which insurance was contemplated.
He referred to texts, particularly a United States publication Templar J (1992) 'The Staircase Studies of Hazards Falls and Safer Design' in respect to which he described the use of handrails to provide security and to alleviate risks of injury.
I did not find myself assisted by Dr Ludcke's evidence in that regard. I am, as the fact finder, able to draw on my ordinary experiences of life from which I am aware of the utility of handrails in public places.
Primarily in my view, Dr Ludcke's evidence pertained to the steps which could be taken to make staircases as safe as possible – consistent with, for example, a safety audit of premises. Many measures might be taken to make stairs as safe as human skill could possibly make them. But that is not the issue.
That evidence did not assist me in determining the questions as to whether, with respect to this staircase, an additional handrail was necessary in accordance with s D.17 or was a reasonable response to the identified risk of harm.

Adequate slip resistance

Mr French contends that the co‑efficient of friction of the floor tiles at the top of the staircase was inadequate. To that end Mr French relies on the evidence of Dr Ludcke who advanced the opinion that the co‑efficient of friction measured by him was inadequate.

Evidence of Dr Ludcke as to slip resistance

He attended the site on 23 September 2011 and held discussions with Mr and Mrs French.
On site he took measurements of the traction or friction characteristics of the stairway and the tiled foyer on the first floor and compiled his report, a redacted version of which is exhibit 10.
In his report he made reference to the Australian Standards which related to the co‑efficient of friction of various surfaces. Excerpts of AS/NZS3661.1:1993 and AS/NZS4663:2004 are exhibits 23.1 and 23.2.
Dr Ludcke said that international research undertaken by him suggested that a static co‑efficient of friction of 0.5 should provide an adequate margin of safety over and above the grip demands required for normal walking on horizontal surfaces and that a static co-efficient of friction of 0.6 is said to be required for activities such as stopping, turning and changing levels.
He said that the relevant Australian Standards were AS/NZS366.1:1993, AS/NZS4586 (which was not exhibited) and AS/NZS4663. He said that AS/NZS3661.1:1993 defined an acceptable surface as one having a mean co-efficient of friction of not less than 0.4 with no specimen in the sample less than 0.35 when tested in accordance with the prescribed methodology.
Be that as it may, he said that the introduction of that Australian Standard 'has not quelled debate and confounding results can still be obtained'. Part of the debate, he said, focused on the specific level of dynamic co-efficient of friction of 0.4 as being too low, in an absolute sense, but also on the failure of the test (in the Australian Standard) to take into account the wide range of contaminants and shoe soles/floor combination encountered.
Dr Ludcke said in his report that there were several factors that determined what frictional forces were available:
•Surface roughness of the titles;
•Type of material of the sole of Mr French's shoe;
•The angled approach to the stairway being the direction of travel of Mr French.
He said in his report that a wet or dry test in accordance with AS/NZS4663:2004 was not conducted by him as it was unknown whether a wet contaminant was present at the time of the incident. Nonetheless a pull test using the shoes worn by Mr French at the time of the incident was conducted.
For the test that he did, he put a weight on one of the shoes which Mr French said he had worn. The weight he put in that shoe was his inspection kit case which weighted 2.4 kg.
He said the test was not intended to replicate Mr French's body weight. He said the co-efficient of friction was a ratio of the normal force to the perpendicular that is the force parallel to the surface. So if the co‑efficient of the friction was 0.2 and 100 kg was applied it should take 20 kg to pull it.
So he put a 2.4 kg weight on the shoe and pulled it sideways for the purposes of understanding the co-efficient of friction of that surface with that shoe sole material.
He said that the pull test was a static friction test. He said a static test was the test required to commence movement of an object on the surface.
Mr Ludcke in his report said that the result of the dry pull tests conducted at the time of inspection indicated that the static co-efficient of friction between the rubber soled shoes worn by Mr French at the time of the accident and the ceramic tiles ranged from 0.29 – 0.36 (average 0.335). He said based on the previously described requirements of a slip resistance (0.4 dynamic and 0.5 – 0.6 static) that provided a lower than recommended level of traction for pedestrians.
In his evidence he said that his reason for choosing the dry pull method was that in his view the Tortus test had very little ability to be applied to the Australian Standards material to give some understanding of what the result really meant.
He said that the pull test, even though it was not a test recommended in the Australian Standards, gave an understanding of what friction the actual footwear worn by Mr French provided in the interaction with that particular surface. He said that was the reason why he did that test.
Dr Ludcke said that his opinion was that the slip resistance of the tiled surface was not up to a suitable standard. When he was asked what acceptable standard he was referring to, his response was 'suitable standards'. When asked how he reached that conclusion he said that was reached as a consequence of and in comparison with research quoted in his report which proposed that static tests of 0.5 to 0.6 were suitable values to prevent people slipping on surfaces.
He said his criticism of the Tortus test, being the test conducted by Mr Mansour, was that in undertaking 22 to 23 tests and then considering them as one bulk test actually provided an averaged result rather than specific results for particular areas that may be higher and lower having regard to the presence of contaminant. To that end he referred to the range of results achieved by Mr Mansour using the Tortus test which stretched from 0.38 to 0.62. He said for that device it was a very significant range and demonstrated to him that there were problems with the test because of very different contaminants present if it was the same tile or the same type of tile that was being tested.
He said that a moderate risk of slipping where a stairway was considered to be maintained dry is acceptable.
He said that falls resulting from slipping most often occurred at heel strike and that typically resulted in a backwards fall but not always. He said that the points of high requirement for traction on the surface appeared at heel strike and toe-off – where the foot pushed off.
He said that in his opinion although a co‑efficient of friction of 0.4 was in the Australian Standards, it was a conservative view having regard to the research and debate over many years about this through the US, UK and Australia suggesting that 0.4 is potentially on the low side of what should be accepted. He did not agree with the proposition that anything above 0.4 would be acceptable.
He said that if a Tortus test came up with 0.4 there would not be too many people with his expertise in this area who would accept it as a reasonable surface in his opinion.
He considered that although 0.4 was in the Australian Standards it was a conservative view having regard to the research to which he referred, but agreed however that there had been controversy about that issue for a number of years.

Tony Mansour

He gave evidence that he was a qualified geologist with a post‑graduate in geotech and pavement engineering. He had 35 to 40 years experience.
He said that over the last 16 years he had worked on managing material testing, pavement testing and pavement design which included slip testing and skid testing.
He attended the premises and undertook an inspection and testing on 4 August 2011. The testing was undertaken to the landing on the top of the staircase and the first to fourth steps from the landing.
He used the Dry Floor Friction Tester Tortus 1 apparatus. He said that the floor co-efficient of friction results were then compared with the classification limits 'for the interpretation of dry floor friction results' in table 2 of AS/NZS4663:2004 for [sic] conformance to the risk of slippage.
He said that the Tortus apparatus was the only recommended equipment by the Australian Standards and measured the co-efficient of friction. That is the resistance of how rough the surface was and gave a co-efficient. His report is dated 12 September 2011 and is exhibit 11.
He said that the Tortus apparatus he used was calibrated on 17 June 2011 and the calibration and test certificate appeared at appendix 2 of his report.
It is clear that the instructions given to Mr Mansour were incorrect. In accordance with his instructions the tiles tested by him were those commencing at the handrail to approximately the middle of the staircase, rather from the wall on the other side.
He said that the tiles were 320 mm wide and the Tortus was about one and a half the length of a tile.
He said that the Tortus was electrically operated. It had a probe that touched the floor. The probe is mounted with a rubber which was calibrated resulting in a certain weight which pushed the rubber on the floor. When the machine travelled the prescribed distance the rubber provided friction.
There was then a digital read‑out which gave the co-efficient of friction on the surface.
The test requirement was to measure 800 mm away from the railing. It was tested both ways that is 800 mm from and away from the railing and 800 mm from and towards the railing.
The test did not involve going right across to the other side of the stairway. Appendix 4 to his report detailed the results. Appendix 3 detailed the average results. He said that the overall mean floor friction co‑efficient was 0.59.
In cross-examination he said that the photograph in plate 2 in his report was the start of the test and that the Tortus moved 800 mm or so to the left. The test was then stopped, the machine was rotated, reset and tested in the opposite direction to take an average of both. The Tortus was going over the same tiles when travelling in the opposite direction but was shifted so that where it touched, the floor was not the same as in the first test.
He said that the distance tested was 1.2 m from the wall.
He said two people operated the machine. He said that he would do the read out and the other person would write the results down which are the figures appearing in the spreadsheet in appendix 4. A copy of the spreadsheet is reproduced on the following page.

He said that no figure appeared in R 3 and R 6 on the spreadsheet likely because there were anomalies. That was because the reading just did not seem right likely because the surface had roughness and that was normal.
He had not seen Dr Ludcke's report. He said he was not familiar with the dry pull test.
His description of 'moderate to very low' in his report was in accordance with AS/NZ4663:2004 – in which reference to 0.4 is classified as moderate to very low at or greater than 0.4.
In making his assessment he relied on that Australian Standard.

Relevant provisions of the Australian Standards

AS/NZS3661.1: 1993 and AS/NZS4663:2004

Excerpts from each standard were exhibited. Both refer to the measurement of slip resistance of pedestrian surfaces.
In each standard appendix B sets out a method for the in situ measurement of the co‑efficient of friction of existing pedestrian surface materials using a floor friction tester – being the Tortus apparatus.
There was no relevant difference in the provisions of each of these Australian Standards.
AS/NZS4663:2004 provided that the test methods in that standard were specified to be used for existing pedestrian surfaces. Under the heading 'Test Methods' the co-efficient of friction of dry surfaces was to be measured in accordance with the method set out in appendix B.
Under the heading 'Interpretation of Test Results' the following table appears:
Table 2
Interpretation of Dry Floor Friction Results

Floor friction tester mean value *Notional contribution of the floor surface to the risk of slipping when dry

>.40

Moderate to very low

<.40

High to very high

*The term 'notional' has been used to highlight the need to consider all potential contributing factors to a slip incident.
NOTE: for a 'moderate to very low' interpretation each individual test result shall be equal to or greater than 0.35).

Mr Mansour gave evidence that the test undertaken by him of the tiled surface was undertaken in accordance with AS/NZS4663: 2004. I accept that evidence. His evidence reflects the testing procedure contained in each Australian Standard.
Dr Ludcke's opinion that a co‑efficient of .4 provided a lower than recommended level of traction for pedestrians and that the appropriate requirement for adequate slip resistance would be between .5 ‑ .6 static is based (inter alia) upon research suggesting that .4 is on the low side of what ought to be acceptable.
He recognised however that there had over a considerable period of time been significant debate in the US, UK and Australia in that regard.
The recommendations in the Australian Standards constitute in my view more persuasive evidence as to acceptable or recommended practices referable to slip resistance of surfaces.
The measurements undertaken by Dr Ludcke utilising the pull test are not measurements resulting from a test recommended by the Australian Standards.
An appropriate method for the purposes of the Australian Standards is the test undertaken utilising the Tortus equipment which was used by Mr Mansour.
True it is that Mr Mansour did not measure the co‑efficient of friction of the tiles from the wall where there was no handrail but over a distance of about 1.2 m from the wall to which the handrail was affixed.
The evidence of Mr Van der Giezen, which I accept, was that he purchased the tiles as commercial tiles. I do not consider it unreasonable to draw the inference that the tiles were likely of uniform quality.
That inference is supported by the evidence, which I accept, that between the date upon which the works were completed to the date of the accident, approximately 13 years, there was no complaint that there was any difficulty encountered by users of the staircase.
To that end the first defendants continued in occupation of the premises between the completion of the works undertaken by the second defendant and the date upon which Mr French was injured.
Mr Van der Giezen gave evidence that after the works were completed he used the staircase many, many times before the accident and had never had a problem with or a complaint about the stairs.
Mrs Van der Giezen said that she worked in the business between 2 ‑ 5 days per week. She said she went up and down the staircase as she came and went during the day and she had never had any difficulties with the stairs and nor were there any complaints made to her by other tenants or customers as to the stairs.
Mr McLeod – Miller said that he was engaged as a cleaner for the premises from the middle of 2009 and would clean the premises on Tuesday morning and Friday morning of each week for about an hour and a half each day.
He cleaned the tiled areas with soapy water, a mop and then a brush. He said he never had any difficulty going up and down the staircase and had never received any complaints about the stairs.
I am satisfied that the slip resistance on the top of the step of the staircase was not at any time, inadequate.
In so far as the tiling on the top of the step to the staircase was concerned there was in my view no response required of the first defendants to any identified risk of harm.

Additional handrail

For the following reasons I do not consider that an additional handrail was 'necessary' pursuant to s D2.17 of the relevant BCA. Nor am I satisfied that a reasonable person in the first defendants' position would have responded to any identified risk of harm by taking the precaution asserted by Mr French, namely the installation of an additional handrail. Those reasons are:
(a)The first defendants engaged the second defendant as the builder to undertake the works in accordance with the terms of the building contract to which I have already referred.
(b)The second defendant was a builder in whom the first defendants had confidence and with whom they had dealt in the past. They had no reason to expect that the second defendant would not construct such handrails as may be necessary pursuant to the relevant BCA.
(c)Mr Chaytor of the second defendant informed Mr Van der Giezen that with respect to the staircases constructed as part of the works, of which there were three, there was a need for handrails in response to which Mr Van der Giezen told him in effect to do what was necessary.
(d)The second defendant submitted the plans which were approved by the City of Mandurah and applied for the building licence.
(e)The correspondence facsimiled from the City of Mandurah following the completion of the works which detailed the items requiring attention did not contain any reference to inadequate handrails.
(f)The first defendants occupied an office on the first floor of the premises for a period of four years or so and the offices were generally tenanted continuously to the date Mr French was injured. They used the stairs regularly. The evidence from the first defendants, supported in part by Mr McLeod‑Miller the cleaner since 2009, was that in the period from the completion of the works in mid‑1997 to the date of the accident in mid‑2010 there was no complaint made by any person with respect to the stairway from which I infer that there was no incident worthy of complaint. The lack of any previous accident corroborates the conclusion that the staircase did not constitute a danger which required a response from the first defendants. See Smith v Wyatt [101], [171].
(g)The tiles on the top of the stairs did not have inadequate slip resistance.
(h)There was a handrail for use by any person who felt a need to use it. That handrail was readily accessible for those wishing to ascend or descend the staircase. The width of the staircase was marginally over 2 m (2.24 m) – with the existing handrail within a couple of steps for any user of the staircase.
(i)This was a modest commercial development in which there were only three offices on the first floor in respect to which the staircase provided access to and from that floor. A reasonable person would expect that the persons who might use the stairway at any one time would not be significant in number such as to prevent or impede any user from having ready access to the existing handrail if that person wished to use it.
(j)The staircase was not exposed to external elements which might render the surface slippery.
(k)There was nothing about the staircase that presented any danger above the everyday risks which were inherent in staircase use.
(l)At the date of the accident Mr French was 69 years of age and an active business person. He was well able to appreciate the inherent danger in descending a stairway without taking care for his own safety in circumstances where there was ready access to a handrail which he chose not to use.
(m)The use of stairways in commercial buildings was commonplace. There is a social utility in an occupier taking reasonable steps to risks of danger not obvious to likely users about everyday risks inherent in stairway use. But in this case there was no such danger or risk of danger which was not obvious.

It is the case that after the writ was served the first defendants installed an additional handrail on the other wall.
That does not however, result in a reasonable inference being drawn that it was necessary or was a reasonable response to identifiable harm: New South Wales Land and Housing Corporation v Watkins [2002] NSWCA 19 [78].
Mr French's claim that the first defendants were in breach of their duty of care to him and thereby at fault is not made out.

Liability – second defendant

Scope of duty

The duty owed by the second defendant to Mr French is a duty to take reasonable care in carrying out the building works to avoid a foreseeable risk of injury to any person: Voli v Inglewood Shire Council (1962‑1963) 110 CLR 74, 84. It is not the duty which is pleaded by Mr French in the statement of claim namely a duty towards users of the staircase to ensure the staircase was safe for its intended purpose and complied with the relevant BCA.

Risk of harm

The risk of harm in the case against the second defendant is the same as that in the case against the first defendants. That is the inherent danger posed to users of the staircase.

Whether a reasonable person in the position of the second defendant would have taken the precautions asserted by the plaintiff in response to the risk of harm

In the statement of claim the plaintiff alleges against the second defendant that the accident was caused by the negligence of the second defendant in that it:
(a)failed to ensure there was a handrail on both sides of the staircase, or alternatively a central handrail, in accordance with:
(i)section D2.17 of the relevant BCA;
(ii)the approved plans; and/or
(iii)the building contract
(b)failed to ensure adequate slip resistance on top of the step.
I have earlier articulated the basis for finding that I am not satisfied that the slip resistance on the top of the step to the staircase was inadequate.
Further, the evidence which I accept is that the first defendants purchased the tiles and although the second defendant caused them to be laid there is no evidence that the work in laying the tiles was defective such as to pose a risk for which the second defendant is liable.
I have also found, earlier in these reasons, that pursuant to the building contract the second defendant was obliged to undertake the building works in accordance with the approved plan and the relevant BCA.
The terms of the building contract between the first defendants as occupier and the second defendant as builder, in so far as they relate to Mr French, are not determinative but are not irrelevant in considering the duty of care owed by the second defendant to Mr French: Drexel London (a firm) v Gove (Blackman) [2009] WASCA 181.
The obviousness of the risk is relevant in determining whether any response is required in relation to that risk. See Smith v Wyatt [162].
In considering what is reasonable it is relevant to take into account that users of a staircase are expected to act reasonably and take care for their own safety: Stannus v Graham (1994) Aust Tort Reports 81‑0293, 61,566.
Plans drawn by Drafting and Design Den before the approved plan did not include handrails on any of the staircases (see exhibit 18).
I accept Mr Van der Giezen's evidence that the approved plan was not submitted to the City of Mandurah by him from which I infer it was submitted by the second defendant.
It would seem that when Mr Chaytor told Mr Van der Giezen that there were no handrails shown on the plan and that there was a need for handrails, he must have been referring to one of the plans predating the approved plan – likely exhibit 18.
By then the second defendant had the approved plan which depicted the handrails and a central balustrade on the staircase.
There is however no evidence as to why it was that the draftsman drew two handrails and a balustrade on the approved plan.
Mr Van der Giezen said he gave no instruction to the draftsman to do so and I accept that. There is no evidence from which I could conclude that the second defendant did so.
It is mere speculation as to why the draftsman incorporated the two handrails and a central balustrade on the approved plan.
It might be he had incorrectly construed the provisions of s D2.17 of the relevant BCA to require two handrails and a central balustrade. Or he may have determined there to be a need for them. Or it might be that he was being overly cautious. I simply do not know.
However, the mere fact, without more, that the draftsman prepared a plan which was approved by the City of Mandurah which incorporated two handrails and a central balustrade says nothing about what may have been a reasonable response by the second defendant to the risk of harm in all of the prevailing circumstances.
Indeed Mr French, in the statement of claim, does not assert that there ought to have been a handrail on both sides of the staircase and a central balustrade – rather the contention is that there ought to have been either.
That in my view recognises, by applying common sense, the likely impracticality of there being two handrails and a central balustrade on this staircase.
That configuration would leave less than a metre either side of a central balustrade on a staircase which provided the only access to the first floor offices on which users may need to negotiate the stairs carrying bulky items.
Save for s D2.17 of the relevant BCA there is no other evidence in this case as to the recommended building practices in 1996/1997 for the installation of handrails in staircases such as this one.
Having regard to the matters referred to in s 5B(1) and s 5B(2) of the CLA, I am not satisfied that the installation of another handrail on the other wall or a central handrail was necessary pursuant to s D.17 of the BCA.
Further, in my view a reasonable person in the second defendant's position would not respond to the identified risk of harm by installing either handrail.
My reasons for that conclusion are primarily the same, with some necessary factual differences, as those to which I have referred in dealing with the liability of the first defendants. The reasons are:
(a)there was no obvious danger apparent with respect to the staircase of which the second defendant was or could reasonably have been aware above the everyday risks inherent in stairway use which members of the public avoid by taking care for their own safety;
(b)there was a handrail available for any person who felt a need to use it. That handrail was readily accessible for those wishing to ascend or descend the staircase.
(c)This was, as I say, a modest commercial development in which there were three offices on the first floor in respect to which the staircase provided access to and from that floor. A reasonable person in the position of the second defendant would expect that the persons who might use the stairway at any one time would not be significant in number such as to prevent or impede any of them from having ready access to the existing handrail if he or she wished to use it.
(d)The staircase was not exposed to external elements which might render the surface slippery.
(e)The tiles on the top of the stairs did not have inadequate slip resistance.
As a consequence Mr French's claim that the second defendant was in breach of its duty of care to him and thereby at fault is not made out.

Causation

By reason of my finding that neither the first or second defendants were liable for the harm to Mr French it is not strictly necessary to deal with causation. However, for completeness I do consider it to be appropriate that I make a finding on that matter.
The relevant statutory provisions are those contained in div 3 of pt 1A of the CLA comprising s 5C and s 5D which read:
5C. General principles
(1)A determination that the fault of a person (the tortfeasor) caused particular harm comprises the following elements —
(a)that the fault was a necessary condition of the occurrence of the harm (factual causation); and
(b)that it is appropriate for the scope of the tortfeasor’s liability to extend to the harm so caused (scope of liability).
(2)In determining in an appropriate case, in accordance with established principles, whether a fault that cannot be established as a necessary condition of the occurrence of harm should be taken to establish factual causation, the court is to consider (amongst other relevant things) —
(a)whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor; and
(b)whether and why the harm should be left to lie where it fell.
(3)If it is relevant to the determination of factual causation to determine what the person who suffered harm (the injured person) would have done if the tortfeasor had not been at fault —
(a)subject to paragraph (b), the matter is to be determined by considering what the injured person would have done if the tortfeasor had not been at fault; and
(b)evidence of the injured person as to what he or she would have done if the tortfeasor had not been at fault is inadmissible.
(4)For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether and why responsibility for the harm should, or should not, be imposed on the tortfeasor.
5D. Onus of proof
In determining liability for damages for harm caused by the fault of a person, Mr French always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.
Causation is determined by the 'but for' test.
In the statement of claim Mr French pleads that when the accident occurred his foot slipped from the top step of the staircase resulting in him falling forward and tumbling down the stairs (par 3(c)).

Mr French's evidence as to his routine and use of the stairway prior to the accident

Mr French said that at his home he had five levels of stairs. There were two levels of eight stairs where there was no balustrading.
He said that his routine over eight or nine years had been to hang onto the balustrading as he went up and down the stairs. He said that he did that to steady himself and for safety or support and had always done that.
He then said whether he used a balustrade when it was available depended on from where he approached the stairs by which he meant that if there was a balustrade at the closest point at which he approached the stairs then he would use it. If there was no balustrading there, he would not use it.
He said that over the 10 days before the accident he would have used the staircase maybe 10 or 12 times. He said that if he used the right hand side of the stairs going down, when he got to the bottom he would walk to his left to the door of the building.
He said that when he came to the office in that 10 days or so he always used the handrail going up and he always walked down the other side 'alongside the wall, on the wall side anyhow'.

Accident - cross-examination

Mr French said that when he went back to the office to get his wallet he remembered turning on the lights which lit up the foyer and said there was enough light for the stairs.
He said he remembered going up the staircase on the side with the handrail. He said he remembered hanging onto the handrail and pulled himself up. He remembered reaching the top of the stairs.
After getting his wallet he remembered walking from his office to the staircase with the direction of travel being the closest point to the right hand side of the stairs.
In response to the question that if he ordinarily used a handrail why did he not walk one or at most two steps and use the handrail going down the staircase he said that when he left the office he had gone over to the closest point, which was on the right hand side from leaving the office, to descend the stairs and that that was the way he had always approached stairs. That is, he had always gone up or down stairs at the closest point.
He said he walked diagonally across to the stairs and as he approached the stairs, he stopped for a second or a half a second and then slipped by losing his footing and fell forward. He said the fall happened very fast.
He said it took him over the top steps. He remembered falling forwards at that point of the stairs but he did not remember what part of his body struck the stairs.
He said that he remembered trying to grab hold of something to arrest his fall but he couldn't and ended up on the floor. He said he did not know how he slipped.
When asked where he ended up at the bottom of the stairs he said that he had to crawl across to the (front) door, to try and get the door open and tried to ring his wife but could not ring her because the phone was full of blood.
He said he did not know where he landed or how he landed. He said he was on the ground and had to move over to the stairs to get out the door.
He was asked how long he lay there and said that he couldn't know how many seconds. He said he would think that he would have been there for about a second or so because he wanted to get out of there.

Answers to interrogatories

The first defendants administered interrogatories for examination of Mr French dated 2 November 2011.
Mr French swore answers to those interrogatories on 20 March 2012 (exhibit 9).
Counsel for the first and second defendants contended that there were significant inconsistencies between Mr French's answers to the interrogatories and his evidence.
They submitted that as a matter of public policy parties should not be permitted to resile from sworn answers to interrogatories in the form of admissions, without there being cogent evidence explaining how and why an error in the answers had been made. They contended that evidence of Mr French which was inconsistent with any admissions in the answers to the interrogatories ought be ruled inadmissible. To that end counsel relied on Gannon v Gannon (1971) 125 CLR 629.
In my view Gannon is not authority for that broad proposition. Menzies J observed in that case that answers to interrogatories are no more than admissions of fact and an admission in an answer to interrogatories is not on the same footing as an admission in a pleading. His Honour further observed that an answer to an interrogatory is no more than evidence of a fact in issue and he saw no reason why it should be regarded as exclusive and exhaustive evidence of that fact (639, 640). That approach is consistent with the judgment of McLure J in Fisher v Stapley [2005] WASCA 16 [9].
Mr French was comprehensively cross‑examined about the circumstances in which the interrogatories were answered and the answers.
The relevant interrogatories and answers were as follows:
INTERROGATORY 14
Describe with particularity the manner in which you slipped and then fell providing details of the parts of your body which made contact with the steps, ground, objects and/or structures in the immediate vicinity.
ANSWER 14
I do not have a recollection of the incident that I fell, or the duration of the fall.
INTERROGATORY 15
Prior to the accident, had you ascended/descended the steps and if so, when on approximately how many occasions.
ANSWER 15
Yes, I had ascended and descended the steps on numerous occasions over a period of approximately 10 days.
INTERROGATORY 16
Prior to the accident, did you notice that there was a handrail adjacent to the steps and if so, on what side of the steps was the handrail located?
ANSWER 16
Yes, when ascending the steps the handrail was on the right hand side.
INTERROGATORY 17
If yes to the previous interrogatory, state whether you had used the handrail to ascend or descend the steps on any occasions prior to the accident.
ANSWER 17
To the best of my recollection, no.
INTERROGATORY 18
If no to interrogatory 17, why did you not use the handrail?
ANSWER 18
I did not use the handrail as:
18.1The majority of times I was traversing the steps I was carrying items as I was in the process of moving into the premises;
18.2I would ascend and descend the stairs on the side that did not have a handrail as in my opinion this was the logical path given the office I was leasing was on the left hand side at the top of the stairs;
18.3Further, I never felt any requirement to hold on to the handrail whilst traversing the steps.
To counsel for the first defendants Mr French said that his understanding was that when he answered the interrogatories it was at his solicitors' office at which time he was suffering pretty badly, his head injuries had not settled down properly and he was [in] a lot of confusion and didn't really know where he was. He said he could not even remember going to the meeting.
He said that he was not in a well position and place, his brain was settling down and he honestly did not know what he was saying and doing at that time and he did not recall any of it. He said he was in a sad place and his brain has not settled down. He said that it [his brain] was only just starting to get any sense of normality.
As to his answer to interrogatory 14, it was put to him by counsel for the first defendant that he still did not know what happened in the fall to which he said that he did and that he was very clear.
He said that he fell forward, he was trying to reach out and grab hold of something and that he first recalled that when he was in hospital.
Counsel cross‑examined Mr French with respect to his answers to interrogatories 17 and 18. There was this exchange concerning Mr French returning to get his wallet from the office.
Did you go to the right-hand side, and did you use the hand rail?‑‑‑I may have, I think. I may have, I don't know. I might have run my hands up it, like I usually do, or I might have pulled myself up. I probably did.
Well, I thought your evidence was that if there was a hand rail there, you would use it?‑‑‑yes, I usually do, that's what I’m saying. I use it, so I probably would have pulled myself up – yeah, up, but – like I usually do. I grab it, and pull myself up ‑ ‑ ‑
Yes?‑‑‑‑ ‑ ‑ or I run my hand up it. If I'm going downstairs, I run my hand down the rail.
Counsel referred him to his answer to interrogatory 17. Mr French agreed with the proposition that the answer was different to what he had just said in evidence. There was then this exchange:
Well, what's accurate? What's right?‑‑‑I'm – I'll try and tell you. I – I – I – I only wish that I could – I mean, I'm not a neurologist, or whatever it – for my head, but at – when this was taken, I don't believe that I was in a fit and proper place to have this all done. But I've done it, and I agree with what I've said there, but I always [sic] the hand rails.
The answer to interrogatory 18 was then put to him:
So that would suggest that you used the left-hand side going up, all the time you went up, and the same side when you were coming down?‑‑‑No. No, that's not right.
Well, that's what you've told us?‑‑‑Well, it's not how it's meant to be, because when I've gone up, I've gone up at the closest point, where the hand rail is, because it's closest to the entry point of the door. And then when I've come down, I've walked across on diagonal, to the wall to descend the stairs on the right‑hand side, where – that's the closest point, and that's what I do, and I always go to the closest point, and that's what I've done. And I go down that – that – descend down that – that side.
His answer to interrogatory 18.2 was put to him:
So it [18.2] says that whenever you're going up and or down, you were on the left‑hand side where there was no hand rail. Is that true?‑‑‑It's not. I always use the hand rail – well, I use the hand rail going up, when I come to the office, and I always walk down the other side, alongside the wall, on the wall side anyhow.
In cross‑examination Mr French agreed that in early November 2011 his solicitors received the interrogatories.
To the question whether he and his wife read through the various questions to see what they were and how he would answer them he said 'yes, probably, yes'.

He agreed that he had meetings with his solicitors to tell them what his answers would be to the questions and his solicitors drafted up answers based on what he had told them at the meeting.
And that was in a form, he agreed, that he would eventually have to swear before a justice of the peace on his oath.
He was asked when they first sent the document to him whether he amended the draft to make changes to how he wanted to answer the questions and he said that he did not because he was not in a fit and proper state at the time mentally.
There was then the following exchange:
Well, what did you do then?‑‑‑I – I – I answered questions. I vaguely recall – I don't recall a meeting that I went to with the solicitors.
I thought you said a moment ago that you did?‑‑‑True, but ‑ ‑ ‑
Well, which is it, Mr ‑ ‑ ‑?‑‑‑Well this is some ‑ ‑ ‑
Did you remember or do you not?‑‑‑What I'm saying is that the time we went to see the solicitors and that is sometime after the accident. And ‑ and from – from my accident and – my medication and recuperating my – my process has been changing. I – my mood, my brain has been adjusting and at that time it was not a good time. I had medication changed after that that helped me a lot more. And that – that's – that's where it's at. It was very hard to explain but the truth of the matter is that I was very, very vague at that time.
Do you remember your solicitors drafting up answers to the interrogatories and sending them to you and you checking them?‑‑‑We – she did, yeah, they did, they sent them ‑ ‑ ‑
And when you – when you got a draft – when you got a draft from the solicitors?‑‑‑My wife handled all those. I didn't – I didn't read all these. I didn't read these. My wife read them and ‑ ‑ ‑ ‑
Sorry, you said you didn't read any?‑‑‑Well, I didn't because I didn't understand what it was all about. My wife read them and – and – because the thing is that I wasn't fit and proper to – to make those decisions for myself.
Later there was this exchange:
But you said you didn't read documents, your wife did?‑‑‑No. I don't even remember the meeting that I went to but I obviously went to a meeting to the solicitors with my wife. She took me and we had a meeting and my wife was telling me that I forgot my solicitor's name. I didn't even know my solicitor's name at that time. But she did, she ‑ ‑ ‑
He was asked whether he read the questions and he said that he would have read them but he wouldn't have understood what it was. As to the answer to interrogatory 14 that he did not have a recollection of the incident that he fell he said that at that time he didn't.
Mr French did not give any evidence as to when he gave his solicitors instructions about the answers to the interrogatories.
There was also no evidence as to time frame over which he maintained that his state of mind changed and/or his medication was altered and, if it was, to what effect.

Mrs French

Mrs French gave evidence concerning receipt of the interrogatories and the provision of answers.
She said that she vaguely remembered that she first saw the interrogatories. She opened all the mail because if Mr French opened it he tended to put it somewhere or other and then she did not get to see it.
She said that she would have discussed the interrogatories with Mr French to make sure that he filled in each bit and to go through it with him because sometimes he did not comprehend things very well.
She said that she remembered going to a solicitor and talking to the solicitor about that document. The solicitor was Jennifer Craig.
She said that she remembered answers being prepared and sent back to them although she said she could not actually remember 100% getting the document.
She said that her husband just scurried off to the pharmacy and got the document witnessed. She said that she did not really remember having any discussion with him about the contents of the document before it was signed.
She said, if she remembered rightly, he wasn't having a very good day and so she backed off. She said that what she meant by him not having a very good day was that her husband could get very, very agitated and get very nasty and some days she just had to back off and let him get on with it.
In his report of 27 June 2011, Professor Foster a neuropsychologist, examined Mr French on 10 June 2011. Professor Foster said that Mr French's performance in recognition memory placed him at a somewhat lower level than anticipated relative to someone of his estimated pre‑morbid functioning but that there was no evidence of impaired performance in his working memory.
Ms Jodrell is an occupational therapist. She wrote a report dated 27 May 2011. She saw Mr French once in 2011 and once in 2013. She reported in May 2011 that she assessed Mr French on a mini‑mental state examination (MMSE) in which he scored 22/30 with difficulty in areas of attention, calculation and recall.
Dr Edwards‑Smith, a consulting psychiatrist, examined Mr French for the first time on 15 November 2011 and provided a report of that date.
She said that she conducted an MMSE in which Mr French scored 24 out of 30. She noted defects in orientation and recall in that he was able to recall only one out of three objects at five minutes and had difficulty repeating a sentence and displayed inaccurate copying of a complex drawing. She did not say that Mr French did not have the mental capacity to understand the interrogatories so that he could provide instructions to his solicitors.
There is no doubt that as a result of his injuries Mr French suffered cognitive impairment.
I am not however satisfied that Mr French's cognitive state at the time that he considered the interrogatories and provided instructions to his solicitors and swore the answers to them was such that he could not understand the questions asked and provide instructions to his solicitors with respect to the answers.
Some of the answers to these interrogatories contained detail which must have come from Mr French after considering the nature of the question asked. The answers to interrogatory 18 is a good example.
Answers to interrogatories are an important part of the litigation process. I would have expected Mr French's solicitors to be acutely aware of the importance of ensuring that the answer he was to give to each interrogatory was accurate.
If, when taking instructions from Mr French, his mental state was such that he was unable to understand the interrogatories or the answers and was then very vague as he described I would have thought that would likely have been obvious to the solicitor taking instructions given the content of the answers which were then prepared.
If those circumstances were apparent to the solicitor taking instructions I would expect that she would have ensured that Mr French was capable of providing accurate instructions before the answers were sworn.
Further there has been no attempt to withdraw any answer. I do not accept Mr French's evidence that he was unable to understand the questions and answers.
Counsel for the first and second defendants contended that on its proper construction answer 14 is in terms that Mr French had no recollection at all of the incident and that was inconsistent with his evidence that he clearly remembered what happened. I do not agree. The first part of interrogatory 14 is in these terms: 'Describe with particularity the manner in which you slipped and then fell …'. The answer was: 'I do not have a recollection of the incident that I fell …'.
Whilst the answer is somewhat inelegant I consider that Mr French's reference to his recollection can fairly be construed as relating to the manner in which he slipped.
In his evidence Mr French said that he could not remember the manner in which he slipped. In my view the answer to the interrogatory is not different to his evidence.
There is however a marked inconsistency between his evidence and his answers to interrogatories 17 and 18.2.
The substance of his evidence was that in the 10 days prior to the accident when he ascended the stairs, in accordance with his routine he always used the handrail and likely did so on the occasion when he was retrieving his wallet shortly prior to the accident. His evidence is inconsistent with these answers.
He said that when descending the staircase he always walked down the side without the handrail because that was the closest point to his approach from the office. That evidence is consistent with answer 18.2.
Not all inconsistencies are material or affect the reliability of a witness. However the 'routine' described by Mr French is sought to be the basis on which I can be satisfied that had there been an additional handrail he would likely have used it to support him in his descent of the stairs. This inconsistency and answer 18.3 are relevant to that consideration.
In considering the question of causation there would seem to be two questions:
(a)whether Mr French would likely have held or had his hand on a handrail as he descended the stairs; or
(b)whether Mr French would likely have been able to grasp hold of a handrail as he fell to prevent and/or arrest his fall.

Whether Mr French would have had hold of an additional handrail

From the photographs included in Dr Ludcke's report, the location of the office was in the middle of the three offices and there appears to be a fairly direct line from that office to the staircase where there is a handrail on the left side. The door to exit the premises is to the left of the bottom of the staircase. And yet Mr French not choose to use that handrail for safety or security when descending. He made a conscious decision in the days preceding the accident and when the accident occurred not to use a handrail to steady or support himself.
His answers to interrogatories17, 18.2 and 18.3 make clear that he had turned his mind to the need to hold onto the existing handrail when descending. He chose not to do so because he never felt any requirement to hold onto it.
Given these answers to the interrogatories I do not find his evidence that he always used the handrail when ascending in accordance with his routine, to be reliable. No reasonable inference can be drawn from it that if there was an additional handrail he would have held onto it when descending the staircase on the occasion of the accident.
I am not satisfied that had there been a handrail on the other wall Mr French would have held onto it as he descended for security or support in accordance with his asserted routine.
Further, I am not satisfied that he would have held onto a central handrail given his evidence that his practice over that period of 10 days was to descend the stairs near the wall being the point closest to his approach from the office.
In the premises I am not satisfied on the balance of probabilities that had there been an additional handrail Mr French would have held it or had his hand on it as he descended.

Whether had there been a handrail Mr French would likely have been able to grasp it

Dr Blasco D'Souza

Dr D'Souza is a consultant ophthalmologist with whom Mr French consulted. Dr D'Souza prepared reports dated 23 February 2009, 2 October 2009 and 14 April 2011.
In his report of 23 February 2009 Dr D'Souza said that automated visual field testing of Mr French had unexpectedly shown a nearly homonymous right inferior quadrantanopia which he said should be investigated with a CT scan of the head with contrast.
He explained in evidence that quadrantanopia is a condition in which a person loses a quarter of their vision. Homonymous quadrantanopia means that it appears in both eyes. He said that for both of Mr French's eyes, the bottom right hand corner has some damage within it which would interfere with his ability to look at things that are down and to his right.
He said that a CT scan was undertaken on 26 February 2009 and then subsequently on 2 October 2009.
Dr D'Souza said that the results of the CT scans confirmed the extent of the homonymous quadrantanopia. He explained that there were fairly obvious changes affecting the right bottom quadrant of each eye which resulted in difficulty seeing and perceiving objects down and to the right.

Manner in which Mr French fell

It is necessary to make a finding as to the mechanics of Mr French's fall because that finding will necessarily impact upon a determination as to whether I am satisfied that he likely would have grasped an additional handrail to prevent or arrest his fall.
Mr French said that he walked from the office to the right hand side of the stairs and as he approached the stairs he stopped momentarily and then slipped and fell forward. He said that he slipped by losing his footing and that took him over the top steps. He said his fall happened very fast.
He said, and I accept, that he did not remember how he slipped. In that regard there was no evidence that there was any substance on the landing at the top of the steps which could have caused Mr French to slip.
In addition, I have already made a finding that I am not satisfied that the co‑efficient of friction of the top of the steps was inadequate.
From a common sense perspective I find it inherently unlikely that Mr French, from a standing start, could have slipped and then fallen forward as he described. He was wearing rubber soled boots, the soles of which from the photographs in Dr Ludcke's report, appeared to have significant tread.
On his evidence he stopped momentarily and then slipped but there is no evidence as to what movement he made which resulted in him slipping from that stationary, albeit momentary, position.
I am not satisfied that he slipped as he said. It is at least equally likely in my view that he tripped or overstepped, or simply missed his footing at the top of the stairs which may be consistent with the homonymous quadrantanopia with which Dr D'Souza said Mr French suffered.
In view of the evidence the manner in which Mr French fell involves mere speculation.
A finding as to the mechanics of Mr French's fall is important in considering whether I can be satisfied on the balance of probabilities that 'but for' the lack of an additional handrail Mr French would not have suffered injury.
For example whether he stumbled which might have given him an opportunity to grasp a handrail or whether he tumbled head first down the stairs in a free fall which likely would not have afforded him that opportunity.

Where Mr French was when he fell

In his evidence Mr French said that when he slipped and fell forwards he was alongside the wall. He said that he flung his arm out trying to grab hold of something but he couldn't and ended up on the floor.
He did not say that in flinging his arm out it made contact with the wall. That in my view is important. If he was in a position alongside the wall when he slipped and fell forward as he said and he flung his arm out at a level commensurate with the proximity of a handrail I might reasonably infer that he would inevitably have made contact with the wall. But he did not say that he did so.
In the circumstances I am not satisfied that Mr French was alongside the wall when he fell. Other than I accept that he was to the right side of the staircase when he fell, I can make no more specific finding.
In addition he gave no evidence as to what height or in what direction he flung his arm out which may be relevant to a consideration as to whether he would have been able to grasp a handrail if one was there.
Mr French described the fall as happening very fast. That one can readily imagine. That is consistent with what may be described as a free fall.
In Owners Strata Plan 30889 v Perrine [2002] NSWCA 324 Santow JA, with whom Sheller JA and Davies AJA, agreed said:
Accepting that the respondent would not have used the stair‑rail save as a possible means of breaking her fall, her description of the accident and its suddenness at the first step strongly militates against the possibility that she would have had the opportunity to stop that 'free fall' in time; that is by reaching for a railing even if she were close enough to it.
These observations reflect, in my view, this case. Even if he was within reach of an additional handrail I am not satisfied that in falling forward and tumbling down the stairs at speed as he asserts he would have had any opportunity to grasp a handrail to prevent or arrest his fall.
In all of the circumstances I am not satisfied that but for the absence of an additional handrail Mr French would not have suffered injury.
Consequently even if the first defendants and/or the second defendant were at fault as alleged I am not satisfied that such fault was a necessary condition of the harm suffered by Mr French.
Finally, with respect to s 5C(2) of the CLA counsel for Mr French does not contend in the event I determine that a fault cannot be established as a necessary condition of the harm that there is any reason appropriate for the scope of the liability of the first defendants and/or the second defendant to extend to the injury and damage suffered by Mr French.

Provisional assessment of damages

Mr French – effects of accident

Mr French said that he was in Royal Perth Hospital intensive care for two weeks and was then transferred to Shenton Park Rehabilitation Hospital for nine weeks. He had a brace, a halo screwed into his head, he was strapped down on his back because had a broken neck and back and the doctors could not operate. He was in tremendous pain and did not know where he was.
He complained in hospital that he had a stomach problem and could not eat properly. Twelve months after coming out of hospital he was still only about 73 kg whereas before the accident he was 91 kg. He said he could not eat and said that the doctors subsequently found that he had ruptured his diaphragm in the fall such that his stomach went through the rupture and jammed against his heart. He had an operation in November 2012 to rectify that condition. He said that at trial he weighed about 83 kg.
He said he cannot do any physical exercises. He can only walk up and down in the pool.
He said that his life is monitored by the pain he has. He is unable to have anything stronger to assist pain.
He said that he just sits around reading the paper. He is antisocial because with his head injury he has a problem in a group of people differentiating the voices and conversations. One on one he was a lot better.
He also says things that are inappropriate and can embarrass others so he apologises beforehand to alert those to whom he is speaking. He feels he has been in limbo for three years.
He is on antidepressants which have helped him a bit which he started about 12 months ago. He has memory problems.
He is getting used to his medication which has changed from time to time so that he can be more coherent.
For the first 12 or 18 months to two years after the accident he was like a zombie. His wife took him everywhere and steered him wherever he wanted to go. He could not fill out forms properly. He used to be very competent but he had no executive skills anymore.
He said that he drives short distances around Mandurah and after about 20 minutes he gets very fatigued and his wife takes over. He used to be very fit and worked 55 to 60 hours a week.
He said that he needs assistance in dressing. His wife helps him put on elasticised stockings which he wears because of thrombosis he developed as a result of burns he sustained in 1973. She assists him with putting on his shoes and socks because he does not have a lot of movement in his right arm.
He has a shower chair to sit in and his wife sits on the bed and talks to him whilst he is in the shower in case there is a problem.
He has short‑term memory difficulties and so preparing meals is a danger because he is easily distracted. For example, if he turns on the gas or the oven he would forget it is on.

Mrs French – effects of accident

She said that before the accident Mr French would help her with the gardens, mow the lawns and trim the hedges. She mowed the lawns for about 12 months and then it became too much for her in summer and since then she employed a lawnmower man at $20 a fortnight.

As to home management skills, Ms Jodrell said that Mr French was restricted in the tasks he could engage in. She said that he made breakfast of porridge every morning but he relied on his wife to prepare other meals and if his wife was not available she recommended Meals on Wheels service.
He was able to do light housework but other tasks such as changing bed linen, vacuuming, hanging out the laundry and mopping floors should be avoided. If Mr French were to live alone she said that he would require weekly domestic support.
He was able to undertake shopping. He is able to undertake some gardening and maintenance tasks light in nature.
Due to back, neck and hip pain, stiffness and high level balance problems, Mr French was restricted in participating in gardening and yard care.
In managing his personal and financial affairs, she said that he was aware of his financial responsibilities but when his pain levels were high Mr French reported to her that other things became too difficult and he preferred his wife to help him or at least double-check what he was doing.
She reported that Mr French was not then engaging in any therapy but in her view an ongoing swimming pool programme would be an advantage.
Ms Jodrell said that Ms French was his prime carer but in completing the Caregiver Strain Index Ms French's responses demonstrated that life was impacted significantly by caring for her husband, identifying disturbed sleep, increased demands on her time, upsetting behaviour due to Mr French's cognitive impairments, and adjusting to his changes compared to his former self.
Ms Jodrell considered it would be appropriate for Ms French to have at least four weeks respite a year in order that she could have a break from providing support to her husband.
In appendix C to her report, Ms Jodrell sets out the approximate cost and life of items of equipment which she considered are and will be required by Mr French.
By that schedule, the total price for equipment immediately required is $3,020 in respect to which the approximately life of the majority of the items was between 5 - 10 years.
As to future equipment, she recommended a motorised scooter at a cost of $3,800 with an approximate life of 5 - 7 years with maintenance including batteries to cost $300 per year.
In appendix C, she set out the domestic assistance, heavy cleaning and yard care and maintenance costs on an annual basis which she said would total $6,565.20 per year.

Medical reports – admitted by consent (exhibit 8)

A number of medical reports were admitted into evidence by consent. A summary of these reports is as follows.

Dr Sophie Fletcher (Resident – RPH)

In her report of 27 August 2010, Dr Fletcher reported that the spinal team took him to theatre on 6 July 2010 for the application of a Halo and he was then transferred to Shenton Park Hospital on 13 July 2010 for further management and rehabilitation.
He was in the Halo plus traction (max 2 kg) for 6 weeks with the Halo pin tightened weekly. He was then to an Aspen brace for 6 weeks.

Dr Thomas Berrigan (consultant in pain medicine and anaesthesia)

Dr Berrigan said he saw Mr French on 10 May 2011 and reported that Mr French had chronic pain and was then on Oxynorm.
He said that Mr French told him that whilst the Oxynorm was effective to reduce his pain, he was having some side effects from the medication and wished to come off it.
As a consequence, Dr Berrigan prescribed Norspan 10 but said that that could be increased to Norspan 20 if there were no side effects.
Dr Berrigan reviewed Mr French on 3 June 2011, and reported that Mr French had ceased his oral Oxynorm and was doing quite well with the Norspan.
He said that Mr French had reported that he still had some pain and he advised him to take Panadol Osteo as well.

Clinical Professor Foster (neuropsychologist)

On 10 June 2011, Professor Foster attended on Mr French for a neuro‑psychological assessment and report. Mr French's wife was present. Professor Foster provided a report dated 27 June 2011.
Professor Foster summarised his findings as follows.
With respect to the objective neuro-psychometric assessment that was undertaken on 10 June 2011, there was evidence of significant loss of intellectual capacity relative to anticipated levels of functioning. In addition, Mr French manifested slow processing with respect to elements of concentration and attention on some of the tasks administered. Further, there was some evidence of lower levels of memory functioning than anticipated and his psycho‑motor coordinator also appears to have been adversely affected bilaterally since the accident. There was evidence of visuospatial (pertaining to the ability to comprehend visual representations and their spatial relationships) difficulties in Mr French. Based on his wife's ratings, Mr French is manifesting clinically significant features of executive dysfunction with respect to his every day behaviours.
Qualitatively, Mr French appeared to have difficulties comprehending task instructions with regard to a range of the tasks that were used.
He said that recognition memory was evaluated and that Mr French's performance placed him at a somewhat lower level than anticipated relative to someone of his estimated pre‑morbid function. He said that on an evaluation of Mr French's working memory, there was no evidence of impaired performance.
He recommended that a further neuro-psychological assessment be undertaken in 18 - 24 months when he anticipated that the point of maximum medical improvement will have been approximated and more definitive opinion with respect to Mr French's ongoing neuro-cognitive profile could be offered by him.

Dr Desmond Williams (orthopaedic surgeon)

Dr Williams provided reports dated 13 July 2011 and 11 April 2013. It is convenient to refer to the later report which, relevantly, recited matters in the earlier report.
Dr Williams said that in his follow up review in February 2013, Mr French complained of ongoing neck pain and stiffness which was quite marked and there was an odd clunking on movement, particularly evident at the cervico-thoracic junction.
Dr Williams said that Mr French had ongoing lumbar back pain felt in the upper lumbar area and reported deep breathing created pain radiating to his lower thoracic spine and to his lower sternal area.
He said that an x-ray of Mr French's right wrist and hand showed a degree of right thumb carpometacarpal joint basal thumb arthritic change. Moderately severe osteoarthric change at the base of the thumb was confirmed with a CT scan.
With respect to Mr French's right and left shoulders, Mr French reported persisting ache and that he could not lift his right arm greater than 90 degrees. His left arm elevated to a better arc to 60 - 170 degrees. There was ache and stiffness in his right shoulder.
At clinical review of the cervical spine, Dr Williams reported there to be a jog of flexion/extension in motion range and rotation was half range with the right arc of rotation more restricted.
He said that Mr French's right shoulder showed abduction 70 degrees, forward flexion 110 degrees and extension 10 degrees. Internal rotation allowed the hand to reach the lumbar area. External rotation was 30 - 40 degrees.
The left shoulder abducted 160 - 170 degrees and forward flexion was 170 degrees.
Mr French's right and left hips were very stiff in rotation with just a jog of internal and external rotation and this, Dr Williams said, related to pre‑existing dysplasia of longstanding.
An MRI of Mr French's right shoulder was undertaken on 12 March 2013 which Dr Williams said showed a moderate grade bursal surface tear of the supraspinatus and minor rotator cuff pathology and moderate tendinopathy in the intra-articular portion of the long head of biceps.
The supraspinatus tendon showed a bursal surface tear extending 60 ‑ 70% of the tendon thickness. The subscapularis had some bursal frame and some tearing of the posterior labrum.
Dr Williams said that the MRI study was in keeping with Mr French's clinical presentation.
As to Mr French's head injury Dr Williams referred to an earlier CT scan arranged by him and a cranial MRI study which showed extensive changes of brain trauma, constituting a major head injury.
Dr Williams said that Mr French's prognosis was poor, in that Mr French has had a major head injury with significant cerebral damage. In the cervical spine, Mr French has a fracture dislocation injury and in the thoracic spine, a major burst fracture injury. In the lumbar spine an exacerbation of symptoms from degenerative change and disc protrusion was evident.
The dysplastic hip symptoms were unrelated but had been exacerbated by the fall with pain and restriction. He said that in Mr French's right thumb there was an aggravation of basal thumb degenerative change which was asymptomatic prior to Mr French's fall. He said in Mr French's right shoulder there was glenohumeral and acromioclavicular joint arthritic rotator cuff and bursal pathology with persisting pain and restriction in motion, range and significant inference with functional capacities.
As to ongoing treatment Dr Williams said that he believed Mr French would choose a conservative path involving the use of appropriate anti‑inflammatory and pain relief medication.
As to physical rehabilitation he said that Mr French required access to a located heated pool twice weekly to maintain some strength about his spine, hip and shoulder girdle area with access to an appropriate water aerobics programme.
He did not believe surgical intervention was indicated.
Finally, Dr Williams reported the following levels of disability:
•25% disability in the cervical spine.
•20% disability in the thoracolumbar spine.
•10% in the disability and the lumbar spine.
•20% disability in the right shoulder.
•In the right thumb, with the exacerbation of symptoms from the pre‑existing arthritis, a 10% disability.
•In the right and left hip he has an aggravation of symptoms from the pre‑existing hip arthritis with the disability at 10%.

Mr Krishna Epari (surgeon)

Mr Epari compiled a number of reports culminating in his report of 20 December 2011. Mr Epari reported that as a consequence of Mr French's fall down the stairs he suffered a giant para-oesophageal hiatus hernia with all of his stomach up in his chest with some degree of gastric volvulus.
On 21 November 2011, Mr French underwent laproscopic hiatus hernia repair at St John of God Hospital, Murdoch.

Dr Ross Goodheart (consultant neurologist)

Dr Goodheart provided two reports dated 2 November 2011 and 21 February 2013.
At his examination of Mr French on 16 August 2011, Dr Goodheart said that he performed a MMSE in which Mr French scored 26 out of a possible 30 points. There were errors with recall but also with orientation.
An MRI scan was performed on 29 August 2011 which Dr Goodheart said showed extensive evidence of trauma which particular affected the right cerebral hemisphere. He reported the radiologist's conclusion which was
… there are extensive changes of brain trauma involving the right cerebral hemisphere, at the frontal lobe. There are extensive zones of signal abnormality in both cerebral hemispheres which are most likely traumatic in origin. There is volume loss in the corpus collousum and moderate enlargement of the subacronoid spaces and ventricular system in keeping with the effects of trauma resulting in generalised neuronal loss.
In his report of 21 February 2013, Dr Goodheart said that Mr French did not describe any major change in symptomology. He said that Mr French continued to experience cognitive dysfunction on the basis of defuse cortical damage and particularly to include the right frontal lobe resulting in significant behavioural and personality changes.
His opinion was that Mr French's cognitive dysfunction will persist for the foreseeable future as well his spinal and chest discomfort.

Dr Gemma Edwards-Smith (consultant psychiatrist)

Dr Edwards-Smith provided two reports dated 15 November 2011 and 18 December 2012.
In her first report, Dr Edwards-Smith concluded that Mr French suffered from specific cognitive defects including a loss of overall intellectual functioning in addition to other defects, particularly with respect to short-term memory, impaired concentration and attention and visuospatial difficulties, in addition to which she said that there has also been emergence of features of frontal lobe dysfunction.
Her diagnosis was of dementia due to head trauma caused by the accident.
Primarily, Dr Edwards-Smith report of 18 December 2012 was directed towards Mr French's capacity to understand the nature of claim and make decisions with respect to it.

Dr Rodger Clarnett (consultant physician)

Dr Clarnett saw Mr French and his wife at his office on 5 January 2013 and provided a report dated 13 January 2013.
He said that Mr French told him that his overall physical and mental status was better then than it was in the previous year. He said that Mr French said that the antidepressant he had been taking had helped his mood and a switch from Oxyconton to Norspan in the previous year had improved his mental state. Mr French said that he still suffered from poor memory manifested by poor recall of recent events and conversations and had persistent fatigue. He said Mr French reported that his musculoskeletal pain was better controlled on Norspan with the main issue being back pain.
Dr Clarnett said that he considered that Mr French had a good life expectancy but less than a male of good health of similar age because of his depression and disability level. He considered however any diminution in life expectancy was minimal and believed that Mr French's life expectancy was 10 ‑ 15 years, given the absence of cardio respiratory or renal disease at the time of review.

Provisional assessment of damages

On 2 May 2013 the solicitors for Mr French filed a schedule of damages in respect to which reference was made to agreed items and those remaining in issue.

Agreed items

(a)Travel rate 43 cents per kilometre
(b)Past gratuitous assistance rate  $       28.80
(c)Future gratuitous assistance rate  $       31.10
(d)Plaintiff's life expectancy 12.5 years
(e)6% multiplier for 12.5 years 463.1
(f)Cost of lawn mowing per visit  $       20.00
(g)Special damages including past
treatment expenses and medication of
which sum $3,953.40 is for out of pocket
expenses incurred by Mr French  $ 29,452.50

(h)Past travel expenses $ 5,349.01
(i)Past gratuitous services for the period to
1 May 2013$72,576.00

(j)Interest on past loss and expenditure to be
calculated over 2.75 years

(k)Future treatment
(1)Future medical expenses $ 5,858.22
(2)Future GP appointments
(to be bulk billed) no claim

(3)Future counselling treatment  $   2,640.00
(4)Future hydrotherapy expenses  $   5,344.17
(5)Future travel  $   3,500.00

Not agreed items

(a)Past and future economic loss
(b)Past paid expenses – lawn mowing costs
(c)Future assistance
(d)Aids and appliances

Non-pecuniary loss

I have considered counsel's submissions and reviewed the relevant comparable case law. An assessment of damages for pain and suffering and loss of amenities of life and enjoyment is to an extent necessarily intuitive. In my view the appropriate award for non-pecuniary loss is $110,000.

Past and future economic loss

Expert evidence – accounting

Mr French called evidence from Mr Michael Lee who provided reports dated 11 April 2012, 16 January 2013 and 22 April 2013 (exhibits 7.1 - 7.3).
The first defendant called evidence from Mr Trevor Williams dated 28 November 2012, 5 April 2013 and 17 April 2013 (exhibits 19.1 - 19.3).
The business was conducted by Elm Park. Mr French and his wife were the sole directors and shareholders. The parties agreed that for the purposes of assessing past and future economic loss, it was appropriate to determine the figures on the basis of the income which Mr French had and would have expected to have had under his control and at his disposal as his earning capacity: see Husher v Husher (1999) 197 CLR 138.
Mr French said that after re‑employing Ms Curry in February 2010 and securing a lease of the premises, his intention was to work on a full‑time basis for approximately two years after moving into the premises. In that two year period he intended to build up the business and train Ms Curry to take over his role and to purchase. He then intended to work on a part‑time basis for approximately 10 years. I accept his evidence in that regard.
Having accepted Mr French's evidence as to his intention, past and future economic loss (subject to contingencies) ought to be based on the income to be derived by him:
(a)working in a full‑time capacity in the business until 30 June 2012; and then
(b)working in a part‑time capacity to 30 June 2022.
To that end the parties each relied on calculations equating Mr French's work in a part‑time capacity to 50%.
Mr French was born on 1 November 1941. His 70th birthday is 1 November 2011 and his 80th birthday is 1 November 2021. I note in Mr Williams' reports he has undertaken his calculations based on the premise that Mr French intended to work in a full‑time capacity until 1 November 2012 which Mr Williams mistakenly calculated to be the date of Mr French's 70th birthday and thereafter in a part‑time capacity to his 80th birthday, namely 1 November 2021.
Nonetheless the schedule appearing in the second defendant's closing submissions accurately reflect the correct dates.
It is common ground that the business ceased in or around December 2010 after the training materials of the business were sold to Wilsons Security for $60,000 and, by reason of the injuries sustained by him on 28 June 2010, Mr French was thereafter permanently unable to return to the workforce.

Past economic loss

(a)For the period 1 July 2010 – 31 December 2010, by which date the business had ceased and the training materials sold, Mr Lee and Mr Williams were in agreement that there ought to be a calculation of the notional gross profit from which figure the actual gross profit for this period, factoring in cost savings and lease and outgoings savings, could be calculated.
Both were in agreement that the true gross profit, reflected in the accounts, for the 2008, 2009 and 2010 financial years was $162,692 (2008), $251,009 (2009) and $238,467 (2010).
The difference between them was:
(i)Mr Lee contended that in order that these figures could be adjusted to 2011 values, each of these figures ought to be increased by movements in the Average Weekly Earnings (AWE). Mr Williams disputed that any such adjustments should be made; and
(ii)Mr Lee contended that the notional gross profit ought to be calculated by reference to an average over the 2009 and 2010 financial years whereas Mr Williams contended that the average ought to be over the 2008, 2009 and 2010 financial years.

(b)For the period 1 January 2011 – 3 May 2013 the calculation of past economic loss was agreed by Mr Lee and Mr Williams to be referrable to a calculation of the true net profit, being the net profit in the accounts for each year to which would be added director's fees drawn by Mr and Mrs French and from which there would be deducted the notional value of Mrs French's labour.
There would then be a deduction for the return on capital generated by the sale of training materials in the sum of $60,000 which the parties agreed was to be calculated at $3,300 per annum, and lease and outgoing savings resulting in the loss of net profit (before tax)
Again, Mr Lee adjusted the movements in the AWE and reflected the notional net profit having regard to an average over the 2009 and 2010 financial years whereas Mr Williams disputed any adjustment by reference to AWE and calculated the notional net profit by reference to an average over the three financial years.

(c)As to future loss of earning capacity, both Mr Lee and Mr Williams calculated that sum between 3 May 2013 and 30 June 2022 by reference to a weekly loss (after tax) extrapolated over that period using the appropriate multiplier.

Exhibit 5 is Mr French's book of financial documents incorporated in which is a business plan as at 28 March 2008 which, Mr French said, had been updated from time to time.
Whilst Mr French gave evidence that the business was building and he anticipated that it would continue to grow and would be more prosperous, there was an absence, in evidence, of any documentation or other independent material relating to any degree of certainty of ongoing contracts or income stream in the future which would independently support Mr French's outlook.
Exhibit 5 contains notices of assessment of taxable income for Mr French and some for Mrs French for the financial years ending 30 June 2005, 30 June 2007 - 2010 and also financial statements for Elm Park for the financial years ended 2008 and 2011.
Relevant extracts are as follows.

Year end 30 June 2005

Mr French received directors fees of $12,500 and his taxable income (after deductions) was $9,350. In evidence he said that his wife was in the same position.

Year end 30 June 2007

Mr French received $10,500 in directors fees which was his taxable income and Mrs French declared a taxable income of $7,000.

Year end 30 June 2008

Mr French received director's fees of $20,000 as did Mrs French.

Year end 30 June 2009

Mr French received $32,541 in director's fees as did Mrs French.

Year end 30 June 2010

Director's fees of $104,484 in total were paid to Mr French and Mrs French.

Notional gross profit

Both Mr Lee and Mr Williams agreed that the notional gross profit (before any adjustment referrable to movements in the AWE) in the financial years ended 30 June 2008 – 30 June 2010 was as follows:

Year ended	Notional gross profit
30 June 2008	$162,692
30 June 2009	$251,009
30 June 2010	$238,467

Application of AWE movements

Mr Lee gave evidence that in his view it was appropriate, when considering past and future economic loss calculations, to increase the notional gross profit in each year by the relevant movements in AWE in order to determine the notional gross profit each year at a 2011 value.
In that regard, he said he adopted the movements in AWE rather than the consumer price index on the basis that Mr French was essentially selling his services, rather than selling goods.
On that basis, he increased the notional gross profit for each year as follows:

Year ended	Notional gross profit	AWE adjustment	2011 value
30 June 2008	$162,692	1.152	$187,354
30 June 2009	$251,009	1.100	$276,077
30 June 2010	$238,467	1.045	$249,279

He said in evidence that if one was going to use an average of gross profit and net profit over a number of years for the purposes of projections of future economic loss, one would need to consider the value of those earnings at a current date. Not to do so would result in the use of outdated earnings.
Mr Williams, on the other hand, said that there ought not be an adjustment to AWE. He said that might be an appropriate adjustment in the event that one was considering wages in respect to which an AWE adjustment might be relevant.
He said that in his view the actual trading results of the business on a year by year basis would automatically include inflationary increases in both income and expenses.
Further, he said if it was appropriate to apply such an adjustment to reflect value at any particular date, one would have expected that there would have been, as a fact, an increase in the income of the business from the financial year ended 2009 to the financial year ended 2010 but there was not - there was a decrease.
He said that in his opinion, other factors influenced the turn over of a business.
In my view the evidence of Mr Williams ought to be preferred to that of Mr Lee in this regard. I do not consider that in reaching a notional gross profit and notional net profit on the basis of averaging over years, be it two or three, there should be an arbitrary adjustment of the nature referred to by Mr Lee.
Accordingly for the purposes of assessing the notional gross profit as a benchmark, the following 'true' gross profit figures will be relevant:
•30 June 2008          $162,692
•30 June 2009          $251,009
•30 June 2010          $238,467

Average to reach notional gross profit/net profit

Mr Lee contended that the notional gross profit figure to be used as a benchmark in estimating economic loss ought to be the average for two years being the 2009 and 2010 financial years.
On that basis the notional gross profit (excluding AWE movements) would be $244,738.
Mr Williams, on the other hand, contended that the average ought to be over the three years. That average would result in a notional gross profit of $217,389.
Mr Lee advanced the view that although ordinarily a longer term average would be preferable, Mr French was expanding the business immediately prior to sustaining injury and as a result earlier trading results may not be reflective of the future operations of the business.
To that end, he said that he relied to a significant degree on the instructions he received from Mr French who he understood to have been the driving force behind the business.
He said that in his opinion if there was a change in business circumstances where a business had operated in a particular way and then decided to change focus, the more recent results were more likely to be representative of what would go forward into the future as opposed to results from prior years.
He said that it was his understanding that there was a change in emphasis for the business and in his view using those two years that appeared to be when the business was doing those things going forward was appropriate.
He said that on that basis the 2008 financial year was not going to be reflective of what could happen in the future. He also said that in doing so he had not taken account of Mr French's assertion that he would have made substantially more than the business made in the 2009/2010 financial years.
He said that the effect of taking an average over three years where one year was significantly less profitable than the other two would result in an implicit assumption that for two years the business would achieve the 2009 and 2010 levels and then for one year revert back to the 2008 level as an ongoing cycle.
In those circumstances he considered having regard to Mr French's instructions that the focus of the business had changed, the two year average was appropriate.
On the other hand Mr Williams said that in his view given the nature of the business, two years was too short a period for the purposes of future projection. He said that in predicting future income it was appropriate to use a longer trend, that is to get a more accurate average trending of the business.
In that regard, he referred to the financial progression of the business since it commenced in 1997 reaching, in 2002, a level of eight employees.
He said his experience with training type businesses was that turnover from year to year was erratic and fluctuated because it largely depended on the number of contracts which were being written at any particular point in time. He said that he had seen such businesses have very good years and very poor years.
He said this business showed in his view an up and down cycle over time.
As I have previously noted, there was no evidence in this case as to the existence or nature of ongoing term contracts or other evidence which might provide support for an approach that demonstrated with any reasonable likelihood the continued progression or at least maintenance of the increased income and profit generated in the 2009 and 2010 financial years.
Further, it is common ground that Mr French was the driving force in the business. He had re‑engaged Ms Curry in February 2010 only four months before he was injured.
The mutual intention of Mr French and Ms Curry was for her to be involved in the business for approximately two years and for her then to take over the business with Mr French working part-time for approximately 10 years which would take Mr French into his 81st year. There was therefore to be a significant change in the structure of the business going forward.
It seems to me that the future business was intended to be driven by Ms Curry with Mr French working part‑time in his twilight years. The abilities of Ms Curry to assume a number of the attributes which Mr French afforded the business may be required. To that end those abilities were untested.
In all the circumstances my view is that a cautious approach to an average of gross and net profit of the business in the future was warranted.
Both accountants agreed that whether the average was two or three years was a matter of judgment. In my view, the appropriate judgment in all the circumstances was that an average of three years notional gross profit and net project was appropriate.
That average is, as I have said, $217,389.

Notional value of Mrs French's contribution

Mr Lee assessed Mrs French's contribution to the business as commensurate with that of a receptionist/clerical and office support worker and to that end he assessed the value of her labour to be $30,298 (2008), $30,497 (2009), $30,810 (2010) and $33,968 (2011).
Mr Lee said that if she was integral to the business particularly in marketing, he would agree that the commercial value placed on her services could be higher than he proposed.
He said that in order to properly and accurately assess the commercial value of Mrs French's contribution he would need a lot more information than he had.
He said that his instructions were that Mrs French was undertaking some administrative duties in the business including assisting with marketing tasks and answering all after hours phone calls.
He said that it was not relevant that Mrs French was described by Mr French as the best marketer in WA. He said that it was his understanding that it was Mr French who was the person who had the skills to provide the training services. He said that he placed a value on Ms French's services based on what he understood she provided to the company, that being primarily administrative services.
He accepted that if she was a person integral to the business as a marketing person he would have difficulty in saying what the specific value would be but she may be factored in on the cost of engaging a marketing consultant of the same degree of expertise and ability. He said marketing is a very interesting thing to put a cost on. He said that in his organisation they would pay a person about $45,000 a year to do marketing and administration.
Mr Williams said that he adopted, in his figures, Mr Lee's calculations as to the notional wages of Mrs French but accepted that he did not have any independent evidence of what it was that she did in the business.
He said that if the role she played in the business was as the marketing person that could make a difference as to how he valued her labour in the business and he would assume that the notional wage would increase.
He said that he assumed that she was some sort of administrative assistant and it was on that basis that he accepted Mr Lee's calculations.
He said that he was not in a position to give any indication of the amount by which that notional wage may increase by reason of her marketing contribution without other evidence.
The evidence of Mr French was that from the beginning of the business his wife was his marketing person. He said that she would be the best marketer in WA in security training.
In her evidence Mrs French said that her role in the business was that she handled the marketing side of it, the phone enquiries, mailing out enquiries and handling the phones generally.
Mr Williams accepted Mr Lee's figure as being reasonably based on his acceptance of Mr Williams' description of the role which Mrs French played.
Both Mr Lee and Mr Williams accepted that if Mrs French played a pivotal role in the business by way of a marketing contribution then it might be that the notional wage ought to better accommodate that role.
Even allowing for what might be an enthusiastic description of his wife, it is my view that Mrs French did play a more pivotal role in this business than a receptionist or administrative support person. Mr French gave evidence that he wanted to 'crank up the business' and I am satisfied that a person with marketing ability was an important contributor.
Whilst Mr Lee said that in his opinion primarily, from his experience, the best marketing comes from the performance of the fee earner the fact is that in this business that was a role which was left by Mr French to his wife as being a necessary contribution.
I consider that the notional wage which was calculated by Mr Lee is, in the circumstances, too low. I am surprised at his evidence that his organisation would pay only $45,000 for a person undertaking a marketing and administration role. Nonetheless, that is the only evidence before me.
In my view the appropriate notional annual wage attributable for Ms French's role is $45,000.

Allowance for contingencies

It is appropriate to make an allowance for contingencies with respect to future loss of earning capacity. In my view the appropriate allowance is 10%.
Based on my findings the past and future economic loss is calculated as follows:

Calculation of past and future economic loss

TRUE GROSS PROFIT

2008	2009	2010	2011
Income	$171,724	$273,702	$265,904	$ 86,444
Less: Proceeds of sale of training materials:	($60,0000)
$171,724	$273,702	$265,904	$ 26,444
Less cost of goods sold	$ 9,032	$ 22,693	$ 27,437	$0
Total	$161,692	$251,009	$238,467	$26,444

PAST ECONOMIC LOSS

07.7.10 – 31.12.10

Notional gross profit (three year average):	$217,389
Six monthly:	$108,695
Actual gross profit in period:	($26,444)
Cost savings (Lee):	($50,000)
Lease and outgoings savings:	($2,500)
Loss of gross profit (before tax):	$29,751
Less: income tax:	$3,563
Total loss of gross profit after tax:	$26,188

PAST ECONOMIC LOSS

1.1.11 – 30.6.11	1.7.11 – 30.6.12	1.7.12 – 3.5.13 (part‑time)
Notional net profit: Alternate return on capital: Lease and outgoings savings	$20,225 ($1,650) ($7,238)	$40,449 ($3,300) ($14,475)	$17,011 ($2,776)
Loss of net profit (before tax):	$11,337	$22,674	$14,239
Less: income tax:	$801	$2,501	nil
Loss of net profit (after tax):
$10,536	$20,173	$14,239
TOTAL LOSS OF NET PROFIT (AFTER TAX):	$44,950

CURRENT WEEKLY LOSS

Notional net profit (working part time)	$20,225
Alternate return on capital:	($3,300)
Loss of net profit:	$16,929
Income tax:	Nil
Annual loss of net profit (after tax)	$16,929
Weekly loss (after tax)	$325.56

LOSS OF FUTURE EARNING CAPACITY

3.5.13 – 30.6.22
Weekly loss:	$325.56
Multiplier:	334
Loss of future earning capacity:	$108,737
Less 10% for contingencies:	$10,873
Total:	$97,863.30
Rounded up to:	$98,000

Summary
30.6.10 – 31.12.10  $26,188
1.11.11 – 3.5.13  $44,950
4.5.13 – 30.6.22  $98,000
$169,138

There may need to be an adjustment for income tax. I have not independently assessed the tax figures proposed in closing submissions because I do not know the basis of those calculations and given that this is a provisional assessment it is not appropriate to require further input from counsel.

Past paid expenses – lawn mowing

Mrs French gave evidence that she was mowing the lawns for just over 12 months from the accident and found that it was too much for her and engaged a lawnmower man who mowed the lawns every fortnight at a cost of $20.
Counsel for the second defendant submitted that because lawn mowing during the winter months was not required as frequently as it was during the summer months lawn mowing once a month was more realistic.
The only evidence was that of Mrs French. I consider the claim of fortnightly mowing to be reasonable.

Future assistance

In her report of 11 March 2013 Ms Jodrell particularised in appendix D Table 4 the nature of the assistance which she considered Mr French will require during the course of the remainder of his life.
Mr French submitted that the annual allowance of $6,565.20 recommended by Ms Jodrell ought to be accepted.
Counsel for the first defendants and the second defendant in oral and written submissions did not advance a positive case against the adoption of Ms Jodrell's assessment. Having regard to the contents of her report I am of the view that her assessment as to future assistance is reasonable.
In the premises the sum of $58,466.37 being $126.25 (per week) x the agreed multiplier (463.1) is allowed.

Aids and appliances

Again counsel for the first defendants and the second defendant did not in oral or written submissions advance a positive case against the assessment made by Ms Jodrell in appendices C and D of her report of 11 March 2013. The substance of her opinion was reflected in the plaintiff's schedule of damages at par 9 in which Mr French claimed the sum of $14,847.57.
Upon a consideration of Ms Jodrell's report and the evidence of Mr and Mrs French I am of the view that that figure constitutes a reasonable sum and will be allowed.
As a consequence my provisional assessment of Mr French's claim is $493,528.79 calculated as follows:
1.Non‑pecuniary loss  $110,000.00
2.Loss of earning capacity:
2.1Past economic loss  $ 71,138.00
2.2Future economic loss  $ 98,000.00
3.Special damages (including $3,953.40
incurred by Mr French)  $ 29,342.59
4.Past travel  $   5,349.01
5.Past gratuitous services  $ 72,576.00
6.Past paid services  $     780.00
7.Interest (3% 1.7.10 – 8.11.13 say 3.4 years)
7.1Interest on past economic loss
($71,138 x 3% x 3.4 years)                  $   7,256.08
7.2Interest on out of pocket expenses        $     403.24
7.3Interest on travel expenses                   $     545.60
7.4Interest on past gratuitous services       $   7,402.75
7.5Interest on paid expenses  $       79.56
8.Future treatment
8.1Medication   $   5,858.22
8.2Counselling  $   2,640.00
8.3Hydrotherapy  $   5,344.17
9.Future assistance  $ 58,466.00
10.Aids and appliances  $ 14,847.57
11.Travel  $   3,500.00
Total$493,528.79

Floor friction tester mean value	*Notional contribution of the floor surface to the risk of slipping when dry
>.40	Moderate to very low
<.40	High to very high