Georges v State of Victoria
[2013] VCC 1235
•19 September 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
GENERAL DIVISION
Case No. CI-10-03312
| FREDON GEORGES | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22, 23, 26, 27 March 2012, 11, 12 April 2012, 4 May 2012 and 17 October 2012 | |
DATE OF JUDGMENT: | 19 September 2013 | |
CASE MAY BE CITED AS: | Georges v State of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1235 | |
REASONS FOR JUDGMENT
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Subject: OCCUPIER’S LIABILITY
Catchwords: Injury caused by falling down stairs – whether defendant breached any duty of care – contributory negligence – quantum of damages
Legislation Cited: Wrongs Act 1958 (Vic), PART IIA and PART X; Residential Tenancies Act 1997 (Vic), s28, s68; Victorian Building Regulations 1983; Victorian Building (Amendment) Regulations 1984 No 1; Building Code of Australia 2006; Uniform Building Regulations; County Court Civil Procedure Rules 2008; Expert Witness Code of Conduct
Cases Cited:Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412; Central Goldfields Shire v Haley & Ors (2009) 24 VR 378; Complete Scaffold v Adelaide Brighton Cement [2001] SAS CI99; AD & S McLean v Meech (2005) 13 VR 241; Jones v Bartlett (2000) 205 CLR 166; Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Luxton v Vines (1952) 85 CLR 352; Holloway v McFeeters (1956) 94 CLR 470; Jones v Dunkel (1959) 101 CLR 298; Wilkinson v Law Courts Ltd [2001] NSWCA 196; Hilas v Todbern Pty Ltd [2007] NSWCA 315; New South Wales Department of Housing v Hume [2007] NSWCA 69; Jones v Bartlett (2000) 205 CLR 166; Vairy v Wyong Shire Council (2005) 223 CLR 422; Neindorf v Junkovic [2005] HCA 75
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr G Pierorazio | L N Christie & Co |
| For the Defendant | Mr J P Gorton SC with Mr D McWilliams | Moray & Agnew |
HIS HONOUR:
1 Fredon Georges, who I shall refer to as “the plaintiff”, sues the Director of Housing, who I shall refer to as “the defendant”, seeking damages for injuries suffered by him when he “slipped and fell” when walking down stairs on or about 12 November 2007 (“the incident”). In particular, the plaintiff claims general damages and special damages agreed and fixed in the sum of $1,500.00.
2 There is no issue that the defendant owned and occupied a building situated at 90 Dight Street, Collingwood consisting of various public housing units (“the premises”). Furthermore, there is no issue that the defendant offered the plaintiff a lease of a ground floor unit in the premises and that the plaintiff accepted such offer and commenced occupation of Unit 2 at the premises on or about 20 October 2005 (“the Collingwood unit”).
3 A laundry situated on the first floor of the premises, and accessible by a flight of stairs (“the stairs”) from the ground floor to the first floor, was available for the use of the plaintiff. There is no issue that the plaintiff fell down such stairs on 12 November 2007.
4 Again, there is no issue that in or about 2003, the plaintiff was diagnosed with a malignant fibrous histiocytoma of the right anterior thigh, following which he underwent excision of the right thigh soft tissue mass on 17 June 2003 and insertion of an intramedullary nail on 5 August 2003 (“the pre-existing injury”).
5 The plaintiff alleges that he was required to climb “approximately 15 stairs” to access the laundry and that the defendant knew of the pre-existing injury when the plaintiff took up occupation of the unit in October 2005. In particular, the plaintiff alleges that he was walking down the stairs when he “slipped and fell”, which caused the injuries.
6 It is alleged by the plaintiff that as a result of such fall, he suffered the following injuries:
“(1)fracture of the right femur requiring the removal of an intramedullary nail and the insertion of a new one, together with bone grafting and plating of the femoral fracture;
(2)4-centimetre shortening of the right leg, resulting in a significant limb and resultant pain in the back, hips and left leg;
(3)scarring and disfigurement; and
(4)anxiety and depression.”
7 Initially, the plaintiff, pursuant to an Amended Statement of Claim, relied on the following causes of action:
(a)That the defendant, as the landlord of the premises, owed a duty to the plaintiff pursuant to s28 of the Residential Tenancies Act 1997 (Vic) to take reasonable steps to ensure that the common areas of the premises were maintained in good repair. It is alleged that the incident and resultant injuries suffered by the plaintiff were caused by a breach by the defendant of its obligations pursuant to such Act;
(b)Further, and in the alternative, the defendant breached implied terms of the tenancy agreement between the plaintiff and the defendant, and such breaches were a cause of the injuries suffered by the plaintiff. This cause of action was ultimately abandoned by the plaintiff;[1]
[1]Transcript (“T”) 530, L12-21
(c)Further, and in the alternative, the defendant breached its obligations as an owner or occupier of the premises pursuant s14B(3) of the Wrongs Act 1958 (Vic). The particulars relied on of such breach are as follows:
“(a)failure to take any or any proper care for the safety of the Plaintiff;
(b)requiring the Plaintiff to climb down the stairs which were unsafe;
(c)requiring the Plaintiff to climb down the stairs which were slippery;
(d)requiring the Plaintiff to climb down the stairs which did not have any or any adequate tread;
(e)requiring the Plaintiff to climb down the stairs which did not have any or any adequate scribing of the tread;
(f)requiring the Plaintiff to climb down the stairs which did not have any or any adequate slip proofing of the nosing;
(g)requiring the Plaintiff to climb down the stairs which did not have any or any adequate abrasive material placed on the nosing;
(h)requiring the Plaintiff to climb down the stairs which did not have any or any adequate slip resistance on the nosing;
(i)failing to ensure the stairs were inspected and/or maintained and/or cleaned adequately or at all;
(j)requiring the Plaintiff to climb down the stairs when it knew or ought to have known that to do so was dangerous;
(
h)[k] allowing and/or permitting the Plaintiff to use the premises when the Defendants knew or ought to have known of the risk of injury to the Plaintiff;(
i)[l] failing to warn the Plaintiff that the stairs were unsafe;(
j)[m] …(
k)[n] failing to take reasonable care for the safety of the Plaintiff in the circumstances.”(sic).
8 The defendant, by way of its Defence to the Amended Statement of Claim, admits it had knowledge of the plaintiff’s pre-existing injury to his right leg. The defendant denies it breached any duty (which is not admitted) pursuant to s68 of the Residential Tenancies Act 1997 (Vic); denies any breach of implied terms of the tenancy agreement, and denies that it breached any duty established under s14B(3) of the Wrongs Act 1958 (Vic).
9 Furthermore, the defendant asserts that it entered into an agreement with GJK Facility Services Pty Ltd (“GJK”) for the cleaning of the premises and in particular, the stairs on which the plaintiff fell, and thereafter, reasonably relied on GJK to perform such general cleaning work. A term of such agreement between the defendant and GJK provided that GJK would inspect the stairs daily for offensive material such as urine, faeces, blood and drug paraphernalia, and clean the offensive material and clean, including mopping the stairs, on a fortnightly basis. Furthermore, no complaint had been received by the defendant from the plaintiff about the lack of cleanliness on the stairs prior to the incident.
10 Furthermore, the defendant asserts that if it is liable to the plaintiff in respect of his injuries, there was contributory negligence on the part of the plaintiff. The particulars of contributory negligence are:
“(a)failing to watch where he was placing his feet;
(b)using the stairs whilst holding a basket in both hands, knowing that he had difficulty using the stairs;
(c)failing to hold on to or use the hand rail;
(d)failing to take additional care knowing that he had difficulty using the stairs;
(e)failing to ask for assistance with the use of the stairs;
(f)using the laundry on the first floor, rather than hand washing his clothing in the safety of his apartment, or asking family members helping to look after him to do his laundry;
(g)failing to implement interim measures to launder his clothing, instead of using the first floor laundry;
(h)failing to consider suitable ground floor accommodation that was not within his desired geographical locations, and therefore increasing the length of time on the waiting list for suitable accommodation.”
11 Initially, this matter proceeded as a jury trial and a view was undertaken of the premises and the stairs on 22 March 2012. Evidence was given by the plaintiff; Mr Kenneth Brearley, who medico-legally examined the plaintiff on 6 March 2009 at the request of the solicitors for the plaintiff, and Dr Basman Marcus, the treating general practitioner of the plaintiff. Furthermore, Senior Counsel for the plaintiff read to the jury a report from the orthopaedic surgeon, Mr Clive Jones, who medico-legally examined the plaintiff on 5 May 2011 at the request of the solicitors for the defendant.
12 At midday on 27 March 2012 – the fourth day of the jury trial – I was advised by Senior Counsel for the defendant that on making contact with the organisation, Advanced Technology Testing and Research (“ATTR”), counsel were advised that there was a second “expert report” dated 5 April 2011, authored by ATTR (“the second report”), in addition to a report by ATTR of the same date served in a timely way prior to the commencement of the hearing (“the first report”). The second report from ATTR had been made available to those acting for the plaintiff that morning. In general terms, the first report from ATTR details various testing of the stairs for slipperiness, whereas the second report deals with the physical dimensions of the stairs. Subsequent evidence established that ATTR attended the premises on one occasion and initially prepared one report, but at the request of solicitors acting for the defendant, broke such report into two parts, one of which was served in a timely way and one which came to light on the fourth day of the trial.
13 After hearing argument, I ruled that the defendant could rely on such report. However, in order for the plaintiff to study the report and obtain, if appropriate, further expert material in answer to such report, I discharged the jury without verdict and proceeded as a cause.[2] To this end, the matter was adjourned part heard as a cause to resume on 11 April 2012.
[2]See ruling dated 27 March 2012
14 I should also point out that I caused the matter to be mentioned on 17 October 2012 to raise the issue that recent authority indicated that PART IIA of the Wrongs Act 1958 (Vic) – that part which deals with occupier’s liability – does not create a statutory duty, the breach of which sounds in damages at the suit of the injured person. Rather, PART IIA of the Wrongs Act 1958 (Vic) redefines the common law duty owed by an occupier of premises setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.[3] At that time, it was agreed between the parties that the reference to the cause of action under PART IIA of the Wrongs Act 1958 (Vic) would be treated as a cause of action based on negligence (without the need for formal amendment).
[3]Refer VWA v Jones Lang Lasalle (Vic) Pty Ltd [2012] VSC 412 at paragraph [5]; see also Central Goldfields Shire v Haley & Ors (2009) 24 VR 378 at paragraphs [4] – [6] per Neave JA
The evidence of the Plaintiff
15 The plaintiff is a fifty-three-year-old[4] married man who was born in Baghdad, Iraq. He attended school to the end of high school, during which time he assisted and worked in the family business of goldsmithing.
[4]Born November 1959
16 He was conscripted into the army at the age of eighteen and remained in the Iraqi Army for some eight-and-a-half years. During that period of service, and particularly from 1980, Iraq was at war with Iran. During the War, he was sent to the frontline because, he believes, he was part of a Christian Assyrian minority in Iraq.
17 In 1986, he tried to escape from army service to Iran but was captured by the Saddam Hussein regime and tortured for some eight months. After his release, he was again sent to the frontline but could not cope, because one of his brothers was killed in the War.
18 He then escaped with his first wife and daughter to Turkey and later moved to Canada in 1988. When in Canada, his first wife gave birth to a second daughter. He separated from his first wife in 1992 and divorced in 1994. His first wife lives in Canada with his two daughters, aged approximately 28 and 20 years old.
19 He migrated to Australia in September 1995 and from 1996 until the early 2000s, he worked as a process worker in various factories.
20 He commenced living in a privately rented first floor flat in Thornbury, he thinks in 1996, and continued to live there for a number of years. To reach that flat, it was necessary to go up approximately 15 steps.
21 In 2003, he was diagnosed to be suffering a cancerous growth in the right leg – in particular, a malignant fibrous histiocytoma of the right thigh – which was initially treated with radiotherapy, and later with surgery.
22 The surgery consisted of taking out most of the tissue from the right thigh, which included three or four muscles, and on 5 August 2003, there was inserted a rod known as an intramediary nail.
23 After the surgery inserting the rod, he needed to use a stick for a while, after which he was walking “normally”, but had difficulty going up stairs. In particular, the following evidence was given:
Q:“Just tell us in your own words after the operation and the insertion of the rod, what was the state of your mobility initially in 2003?---
A:Was slow, okay, but day after day my – I have just one muscle, was cramped and the cramp is open because of the massage, I went to massage, physiotherapy and they make me, like, much better.
Q:You said earlier that after initially recovering you didn’t have difficulty walking?---
A:Yes.
Q:Was there anything you did have difficulty with?---
A:Actually I was walk – like after that I was walking normally, I used – I was using walking stick for short time and after that I was walking normally.
Q:What about in relation to where you were living, did that present any difficulties, the Thornbury apartment?---
A:Yes, because it was upstairs.
Q:And how many stairs approximately did you need to climb to get to the Thornbury apartment?---
A:I think like was 15 steps.
Q:Yes. And as a result of that did you - - -.”
HIS HONOUR:
Q:“Excuse me, Mr McGarvie, before you go there. What was the difficulty, Mr Georges?---
A:I can’t climb down, I have to – it’s very hard for me to climb down the stairs.
Q:How about going up, what is that like?---
A:Going up too is very hard, I have to struggle because I don’t have enough muscles.”[5]
[5]T41, L5-31
24 The plaintiff loosened some clothing in order for observation to be made of his right thigh, which clearly demonstrated a vast loss of muscle tissue and shaped in a vastly different way to his other thigh. In particular, the plaintiff gave evidence that the two procedures that he underwent in relation to his right thigh condition had no effect on the length of either leg.
25 In 2003, after the surgery to his right leg, he commenced to make applications to the defendant to obtain a unit on the ground floor, as he was finding that it was taking him “more than ten minutes” to get up or down the stairs situated at his Thornbury unit. In response to a query from the Court, the plaintiff described how he did walk up and down stairs.
HIS HONOUR:
Q:“Yes, just one thing; when you walk up or down the stairs, you know how people put one foot on the step, then the next foot on the step?---
A:Yes.
Q:Could you do that or was it one step at a time?---
A:Can’t do it properly, I have to struggle because if I show you here, it’s very hard to – especially this one, to push on it, to put all my body on the right leg.
Q:All your body, all your weight?---
A:Yes.
Q:Yes, I see.”
MR McGARVIE:
Q:“Arising out of that, at that time early after the operations in 2003, would you go up with alternating steps in a normal way or did you climb steps in a different way, from one to one?---
A:No different way.
Q:In what way was it different?--- Like, you have to put the left one and after that, the right one?---.”
HIS HONOUR:
Q:“And the right one next to the left one?---
A:Yes.
Q:Was that the same situation going down as going up?---
A:Yes.”[6]
[6]T44, L9-26
26 Various applications to the defendant were supported by his then physiotherapist, Ms Jenny Meyers, and by his then general practitioner, Dr Mostafa, and later, Dr Marcus.
27 The plaintiff gave evidence of the following applications:
(a)Medical Care Assessment form dated 24 September 2003 signed by the plaintiff, together with a document headed “Appendices” filled out by Dr S Mostafa.[7] In that document, the plaintiff states, in part:
[7]See exhibit 1 – Plaintiff’s Court Book (“PCB”) at pages 58-59
“Due to my right leg and after two operations, I have lost three muscles of my thigh and as I live on the 1st floor I am unable to climb the 15 steps. It takes me approx 1 hour to climb those steps.”
(b)Letter dated 25 September 2003 signed by Ms Jenny Meyers, physiotherapist.[8] In that letter, Ms Meyers states that the plaintiff was considerably disabled due to lack of control of his right knee, severe pain in the right knee, thigh and leg cramping;
[8]See exhibit 2 – PCB at page 53
(c)Medical Care Assessment form signed by the plaintiff dated 7 October 2003, together with a further document headed “Appendices” signed by Ms Jenny Meyers, physiotherapist, dated 7 October 2003.[9] In that document, Ms Meyers states, in part:
[9]See exhibit 3 – PCB at pages 54-55
“Fredon does not have active control of his right knee, making it very difficult to negotiate steps. In addition he has a lot of thigh pain. It is uncertain at this stage how much knee function will improve. To negotiate 15 steps is untenable for Fredon on a regular basis. One or two steps would be acceptable.”
(d)Letter from Dr Mostafa to the Officer of Housing of the defendant dated 16 October 2003.[10] Dr Mostafa states, in part:
“Mr Fredon Georges had surgical removal of malignant tumour from the right thigh which also required resection of a big portion of a big portion of the right thigh muscles. Consequently [due] to his medical condition he suffers from persistent weakness and pain in the right lower limb. Also he suffers from post-traumatic syndrome in the form of anxiety and depression for many years and his condition was aggravated by the development of cancer in his right thigh.
His current residence has 15 steps and he has real difficulties climbing these and it takes him up to one hour to reach his flat and he is in need, of ground floor accommodation.
Mr Fredon Georges is unable to look after himself is in need to be relocated in Coburg, Brunswick or the Thornbury area to be close to his relatives to enable them to look after him.
He has occasional periods where his leg pain and post traumatic disorder become very overwhelming and leave him unable to care for himself. On such occasions he requires a member of his support network to act as a live in carer until the episode subsides. It is therefore critical that Mr Georges have a second bedroom for the carer on these occasions.
It is imperative you can help this man, as his present accommodation is not suitable for his medical condition and he has lost his balance on numerous times and he has nearly fallen down the stairs.”
[10]See Exhibit 4 – PCB at page 66
28 The plaintiff gave evidence that his psychiatric condition and in particular, his Post-Traumatic Stress Disorder was initially caused by his years of war service and also in part by the “cancer scare”.
29 The plaintiff gave evidence that there has been no return of the cancer after his initial treatment. Approximately twelve months after surgery to his right thigh, he moved to a private house owned by a friend in Coburg and such residence did not have any steps to negotiate. When queried as to the state of his medical condition some twelve months after the surgery to his right thigh, the following evidence was given:
Q:“While you were at Coburg, what was the state of your leg, was it getting better or getting worse or staying the same?---
A:No, getting better.
Q:So in what way was it getting better, say 12 months after the operation?---
A:Physiotherapy make me, like, a lot better.
Q:And what did it improve, movement or pain or what did it assist?---
A:Like, after a while the pain is gone because the muscles, they kill the muscles, yes, and at the beginning of the operation it took me three or four months to five months, the pain was very painful, after that because of the healing the pain is gone.
Q:And you described earlier how initially the leg was very bent and the muscle had shrunk and you cramped?---
A:Yes.
Q:Did that stay the same or get worse or get better?---
A:Get better.
Q:In what way did it get better, say, by the time you were in Coburg, 12 months after the operation?---
A:They teach me how to make an exercise at home to build the muscles, I have one muscle so I have to build it up to make my leg straight, you know.
Q:Did that help straighten your leg or not?---
A:Yes, help a lot.
Q:So 12 months after your operation were you able to straighten your leg?---
A:Yes.
Q:And did you have any ongoing pain?---
A:No, the pain is gone.
Q:Were you able to walk?---
A:Yes.
Q:Were you able to walk without a stick?---
A:Yes, without a stick, yes.
Q:And did you have any limitation on how far you could walk?---
A:I can walk more than five minutes but in pain.
Q:So you can walk more than five minutes without pain?---
A:Yes.”
HIS HONOUR:
Q:“I think it was the other way around, ask the question again, please?”
MR McGARVIE:
Q:“We’re talking about the time you were in Coburg, not now?---
A:Without pain, yes.
Q:So in Coburg after your cancer operation you were granted a disability pension?---
A:Yes.
Q:Have you been living on that disability pension since?---
A:Yes.
Q:When you were in Coburg what sort of activities would you engage in on a daily basis, what would you do during the day?---
A:Doing exercise, reading, like, walking.
Q:How far could you walk in Coburg?---
A:I was walking like normal, like any person.
Q:Was there any limit to how far you could walk?---
A:More than one hour.
Q:Did you have any pain after walking for an hour?---
A:No.
Q:Did you have at any pain any other time?---
A:No.
Q:Did you have any cramping when you were in Coburg?---
A:The cramp is gone.
Q:Were you taking any medication to control pain?---
A:No.
Q:You said that your depression and your anxiety was made worse by the cancer scare?---
A:Yes.
Q:Did your depression and anxiety, did that stay the same or get better or worse by the time you were in Coburg?---
A:After one year like, I feel a little bit better.
Q:So what state of mind were you in, say from late 2004 up to late 2005 when you moved to Collingwood what was your state of minds (sic) like?---
A:I was better because of the MRI and nuclear medicine, they show like nothing, nothing is shown and the doctor has given me like moral support, you know.”[11]
[11]T55, L27 – T57, L21
30 The plaintiff gave evidence that it was more than three weeks after moving into the Collingwood unit that he attended the Office of Housing Centre at the premises, making an enquiry as to where the laundry was situated. He gave the following evidence:
Q:“Do you remember who you spoke to?---
A:I can’t remember the name but it was woman.
Q:What did you, as best you recall, say to the woman?---
A:I said I can’t find a place for washing machine even around the flat and she said the laundry is upstairs, and I said I have a problem with my right leg and you know that I can provide all my medical reports. She said, ‘This is on the first floor, if you don’t want it just leave it’.”[12]
[12]T59, L14-22
31 The plaintiff gave evidence that initially, when living in the Collingwood unit, he would drive to Lalor to give his laundry to his mother for washing, and this occurred for almost one year. Because of the advancing age of his mother, he then attended a public laundromat in Collingwood which he went to “a lot of times”.[13] He did not like taking his clothes over to the laundromat at night as he found Collingwood a “very dangerous area”.
[13]T60, L18
32 He estimated that he commenced using the laundry at the premises about a month before the incident. In particular, he described that he would get his dirty clothes in a basket, put it in his left hand and then used his right hand on the handrail to get up the stairs. He identified various photographs taken by his then fiancée (now wife) taken from the top of the stairs and some photographs taken by him from the bottom of the stairs shortly after the incident.[14] Furthermore, further photographs were tendered, taken by Mr Lightfoot, an engineer to be relied on by the plaintiff.[15]
[14]See exhibit 5 – photographs numbered 9, 10 and 11
[15]See exhibit 6 – photographs numbered 1 to 8
33 The plaintiff described using the stairs in the Collingwood unit on two occasions prior to the incident and when descending such stairs, he denied using alternating steps, but rather, left leg, then right leg, left leg, then right leg, but he comments it was “very dangerous”.[16] Furthermore, the plaintiff gave evidence that the depiction of the stairs in the photographs was different to the stairs on the day of the incident. In particular, he describes the stairs to be “wet and messy and there was urine on it”.[17]
[16]T63, L25
[17]T63, L9-10
34 Shortly before the incident, the plaintiff described taking the washing basket upstairs with his dirty washing and after completing the washing, he held the washing basket in front of him with two hands as it was “very heavy” because such clothes had been taken from the washing machine with no drying, as the drying machine was not “good during that time”.
35 He gave evidence that, to his observation shortly prior to the incident, he observed the steps to be “dirty”. In particular, the following evidence was given:
Q:“And what did you see on the steps on that day you fell?---
A:On the steps?
Q:Yes?---
A:Was wet and messy and looked like Pepsi, urine, something like that.
Q:And whereabouts, do you recall where on the stairs you saw this wet section?---
A:Yes, afternoon.
Q:Whereabouts?---
A:Afternoon.
Q:Afternoon?---
A:Yes.
Q:But looking at the first photograph, does that show the steps?---
A:Yes.
Q:Whereabouts approximately was the wet patch that you saw?---
A:Different, like not just on one or two, like different steps.
Q:All right. So do you remember was it on the upper portion or the lower portion or the middle?---
A:In the middle and up here, like three or four steps.
Q:So it was three or four steps from the middle to about three quarters of the way up?---
A:Yes.
Q:And you said it was like Pepsi or like urine, Pepsi smells very different from urine?---
A:Yes.
…
Q:Was this unusual for the steps to be in that state?---
A:No, actually.
Q:So you lived there by then for a couple of years?---
A:That’s right, yes.
Q:What state were the steps typically in?---
A:Like always dirty.”[18]
[18]T65, L13 – T66, L11
36 The plaintiff was referred to photographs numbered 6 and 7 and identified the shoes that he was wearing at the time of the incident. He accepted that such shoes seemed to have a leather sandal-type upper but was unsure as to the make up of the sole.
37 Immediately prior to his fall, he was carrying the laundry basket with the wet laundry in front of him with two hands. He then described what happened:
Q:“So you approached the stairs, just then describe what
happened?---
A:Yes, I’m trying just to get down, I put the first leg and second leg and first leg, but the left, then the second and I fell down.”
HIS HONOUR:
Q:“You said that before, when you say you put your left leg onto the first step and then your right leg came next to your left leg, it was like that, was it?---
A:Yes.
Q:You weren’t stepping down like that, it was left leg, right leg, left leg?---
A:Yes, like left and the right, left, right.
… .”
MR McGARVIE:
Q:“The shoes that you wear, what size are they?---
A:Between 10 and a half and 11.
Q:And do these shoes fit on to one of the steps or do they overhang?---
A:No, the steps are tight.
Q:Do the shoes fit on to the steps or do they overhang the end of them, when you put the shoes on is all the shoe on the step or is part of it?---
A:No, both.
Q:Then describe as best you recall, you’re going left foot, right foot, left foot, right foot?---
A:That’s right, yes.
Q:At best you recall how many steps had you gone down before the accident happened?---
A:I can’t remember exactly but I remember two, two or three like two, maximum two.
Q:Then what happened next?---
A:I fell down.
Q:Before you fell what happened to cause you to fall? Going back a couple of steps, you’re going left foot, right foot, left foot, right foot?---
A:Yes.
Q:What happened then?---
A:I think I slipped, I slipped and I feel like myself unbalanced and I fell down, yes.
Q:When you slipped, did you recall which foot it was or you are not sure?---
A:I’m not sure, yes.
Q:You said when you slipped you felt unbalanced?---
A:Yes.
Q:What happened next?---
A:Next I fell down and I fracture my leg.
Q:When you fell down, how did you fall, did you fall forwards, backwards, sideways?---
A:Like that.
Q:When you say like that, what are you describing, did you fall backwards or forwards?---
A:I fall like that, I fell like I slipped, okay because of the bones is weak from the radiation, what they call broke, okay, and I can’t control myself. I fell on my face okay, but thank God like, I didn’t break my neck because I hold, like, on what they call it, on the rail on the wall. I’m trying just to hold because my body is heavy just not to break my neck or something happened to my face or my back.
Q:So after you fell forward were you still holding the washing basket?---
A:No, I lost it.
Q:Where did you end up after you slipped and fell?---
A:On the ground floor.”[19]
[19]T67, L8 – T68, L27
38 After the incident, he experienced pain in his right leg, back, neck and hands, and his elbow was bleeding. An ambulance was called and he was conveyed to St Vincent’s Hospital, where a diagnosis was made of a fracture of the right leg – more particularly, a periprosthetic fracture of the right femur. He remained in hospital for about five days after the incident, during which time a cast was placed on his right leg, which was very swollen, and he was administered painkillers.
39 He was referred to the Peter MacCallum Clinic and because the fracture of the femur was slow to heal, he had a bone graft performed at the site of the fracture and also had a device called a bone stimulation device inserted.
40 In particular, the plaintiff described about three or four months after the incident, he underwent a bone graft and the pin in his right thigh was changed and also a plate was inserted into that area. For approximately five months, he was on crutches and experiencing strong pain, for which he required medication.
41 Initially, the plaintiff was very concerned that the incident which caused his leg to swell may have a role in re-activating his previous cancerous condition. According to the plaintiff, it was “many months” after the incident that he was told that tests showed that the cancer had not recurred. During this period of time, he describes his state of mind as “very bad”.[20]
[20]T71, L 17
42 After being told that the cancer had not recurred, he gave the following evidence in relation to the state of health following the incident:
Q:“What was your state of health then?---
A:It was bad because there is not one hundred per cent the cancer is going to be gone because the cancer I got was separate, what they call separate.
Q:I understand but when they said you’re still in remission was it then that they inserted the plate and the pins?---
A:M’mm.
Q:And the bone graft?---
A:Yes.
Q:So after the surgery was carried out what was your leg like
then?---
A:Like very bad.
Q:In what way?---
A:Very bad, I got short leg and very in pain, until now very in pain and having got a plate the plate makes me nervous and when I’m walking it’s what they call this scratching my leg inside.
Q:So the plate scrapes the inside of your leg?---
A:Yes, because it’s moved.
Q:And you said it makes you nervous, what is it?---
A:I’m nervous of the pain and my leg is not going straight, it’s going – like this straight, this one is going like that, I can’t make it straight properly after operation.
Q:After your operation is your right-hand leg some 4 centimetres shorter than your left-hand leg?---
A:Yes.
Q:Do you wear a pad or a booster inside your right foot to compensate for the shortening of that leg?---
A:That’s right, yes.
Q:Since the fall and since the operations do you walk with a limp or without a limp?---
A:Before?
Q:Since the operations?---
A:Since, like, after, yes.
Q:Have you walked with a limp or without a limp?---
A:No, with a limp.
Q:You said you were initially on crutches after you had a[n] operation?---
A:Yes.
Q:And that was for quite some time?---
A:Yes.
Q:After that did you begin to use a stick?---
A:Yes.
Q:And initially did you use the stick all the time?---
A:Initially yes.
Q:And what’s the situation now, you haven’t got your stick today, but your stick, do you use it sometimes or occasionally?---
A:I use it sometimes, I’m walking – like I’m walking but, like I can’t walk more than five minutes but in pain, like even my wife give me moral support, said if you’re walking with a walking stick you are not like old man, you have to force yourself and I’m forcing myself to be fit but I feel like very in pain but I can’t handle it.”[21]
[21]T73, L13 – T74, L27
43 The plaintiff gave evidence that prior to the incident, he made a number of applications to the defendant seeking a transfer from the Collingwood unit to alternative accommodation. He identified the following applications:
(a)Application for a special accommodation requirement signed by him on 30 April 2006;[22]
(b)Application for a special accommodation requirement signed by him on 24 April 2006.[23]
[22]See exhibit 7 at pages 56-62 PCB
[23]See exhibit 7 at pages 24-30 PCB
44 The last application was supported by Dr Marcus, who ticked the box that the plaintiff needed a handrail and grab rails on stairs.
45 On 4 October 2006, the plaintiff was advised by the defendant that his application for housing on the ground floor with one to four entrance steps or lift access had been approved.[24]
[24]See exhibit 9 letter from Department of Human Services addressed to the plaintiff dated 4 October 2006 at page 159 PCB
46 The plaintiff also made further applications after his application had been “approved”, and I refer to the following:
(a)Application for a special accommodation requirement signed by the plaintiff on 3 September 2007;[25]
(b)Further application for special accommodation requirement signed by the plaintiff on 21 September 2007.[26]
[25]See exhibit 10 at pages 70-76 Defendant’s Court Book (“DCB”)
[26]See exhibit 11 at pages 77-83 DCB
47 The plaintiff describes himself being presently in pain and taking Endone, although he has been warned by his doctor to avoid becoming addicted to such Endone because it is morphine based. He stated that he takes Endone once or twice a day when he is in very much pain and on a “good day” when he does not take Endone, he would take almost eight Panamax tablets daily. He states that he does not sleep well and gets like an “electricity shock” through his leg at night and this could happen sometimes three or four times during the night.
48 He continues to be treated by a psychiatrist, Dr Ibrahim, and receives tablets from him.
49 The plaintiff gave evidence that he had a fall prior to the incident, which he described as occurring after the “first operation”. Since the incident, he described that he has like been living in a “nightmare”. In particular, he gave the following evidence:
Q:“Before you fell down the stairs were you able to run?---
A:No.
Q:But you said you were able to walk an unlimited distance, this is before you fell?---
A:Yes, before I can walk but I can’t run, just walk, yes.
Q:Since you fell down the stairs how far can you now walk
without - - -
A:No, I can walk more than five minutes but in pain.
Q:And how long before you fell were you able to stand in one position?---
A:I can stand properly, stand up, like?
Q:I mean, before you fell how long could you stand?---
A:I can stand for long time.
Q:You can?---
A:Yes, I can, yes.
Q:What about since the fall, how long can you stand?---
A:Five minutes because I feel like imbalanced and I feel pain in my back.
Q:Before the fall how long could you sit?---
A:Can sit properly.
Q:You can?---
A:Yes, can sit, yes.
Q:What about since the fall, do you have any difficulties with sitting?---
A:Since the fall.
Q:Yes, after the fall?---
A:I’m sitting properly but like in pain like, now I have pain.
Q:Before the fall you said you could walk for an unlimited time before you fell?---
A:No limited before, yes.
Q:What about since the fall?---
A:Since, yes, limit time but I force myself to walk.”
HIS HONOUR:
Q:“Do you still drive a car?---
A:I’m driving a car, yes.”
MR McGARVIE:
Q:“In relation to driving a car is there any limitation on the distance you can drive?---
A:Yes, I’m not driving like too far, I drive to Lalor to my family and come back like from where I am living, it takes me ten minutes.
Q:And you said that you have inserts or insoles inside your shoe, you have a booster inside your shoe?---
A:Right now, yes.
Q:Why do you wear those?---
A:Because I have, like my leg is short, I put it to make my - what they call it, it’s a little bit high.”[27]
[27]T81, L20 – T82, L26
50 At the time of the incident, he was engaged, and on 10 August 2008, he remarried and his wife has continued to live with him. Since October 2011, he has been living in Broadmeadows in a ground-floor flat operated by the defendant.
51 Under cross-examination, the plaintiff accepted that when he was offered the Collingwood unit by the defendant, he was not forced to take up occupation in such unit. Furthermore, he agreed that when he moved to the Collingwood unit, he continued to have a painful leg from the cancer condition and had trouble with stairs because of the leg.
52 In particular, the following evidence was given:
Q:“So you thought whilst you were in the Collingwood property you thought that if you tried to use the stairs you might fall?---
A:Yes.
Q:And that’s just because they were stairs?---
A:Yes.
Q:And you had real trouble with stairs?---
A:Yes.
Q:What you were concerned about was, was it, that your leg would give way causing you to fall?---
A:Yes.
Q:Because when you walk up or down stairs there’s moment (sic) you have to have all your weight on one leg?---
A:Yes.
Q:If you lost your balance or started to do something like that with your bad leg you would have had difficulty recovering your balance?---
A:Yes.
Q:And that’s why when you did try to use the stairs you held on tight to the handrail?---
A:Yes.
Q:So the position before this fall is that you knew that you knew that you were at real risk of falling down stairs because your leg might give way?---
A:Okay, yes.
Q:That is right?---
A:Yes.
Q:Don’t just say okay, I want you to agree?---
A:Okay.
Q:Is that what happened on this occasion, that you were coming down the stairs, your bad leg gave way causing you to fall?---
A:Yes.
Q:That’s what happened?---
A:Yes, when I came.
Q:That’s what caused you to fall as you came down these stairs was that you had to put all your weight on your bad leg, it gave way underneath you?---
A:Like I explained, I put the left and the right, left and the right, and the floor was slippery, the steps were slippery and I lost my balance and slipped.
Q:Did you lose your balance, you see you don’t know whether you slipped before you lost your balance or whether you lost your balance, or whether your leg gave way, is that correct?---
A:I said I slipped, I lost my balance.
Q:Before you slipped or after you slipped?---
A:I lost my balance when I slipped.”[28]
[28]T84, L14 – T85, L17
53 The plaintiff could not recall which foot he had put down at the time of him “slipping” on the staircase. He agreed that on the previous two occasions, he had been able to come down the stairs without holding onto the handrail.
54 When queried about the position of any liquid on the steps (Pepsi or urine et cetera), he stated it was “here and here” but accepted that it was not on every step, just like “some here, some here, some here”.[29] Later in his cross-examination, he confirmed that the damp patches that he saw on the stairs went no higher than about three-quarters of the way up the stairs. He also confirmed that he could not remember exactly how far down the stairs he had come, but a maximum of two steps from the top when he commenced to fall.
[29]See generally T87, L22 – T88, L1
55 In particular, the following evidence was given:
Q:“So it follows then that the damp patches you say were no higher up the stairs than about three quarters of the way up?---
A:Yes.
Q:And you fell on about the second step on the way down?---
A:Yes.
Q:So what I was trying to then to put to you, the conclusion that follows is that the area where you fell was not an area of the stairs that you identified as having damp patches on?---
A:I can’t remember.
Q:You are unable to say to the jury today that there was any dampness at the steps where you fell, you’re not just able to say that?---
A:Can you repeat the question?
Q:You are not able to say to the jury that there was dampness on the steps where you fell?---
A:Yes, I told you, I can’t remember.
Q:You can’t remember, and your best memory is that the dampness extended no further than three quarters of the way up the
stairs?---
A:Yes.
Q:And you fell at the first or second or perhaps the third step from the top?---
A: Yes.
Q:And that’s more than three quarters of the way up?---
A:I can’t remember.”[30]
[30]T124, L1-L22
56 The plaintiff was also cross-examined as to the way he put his feet on the stairs when descending the stairs. In particular, the following evidence was given:
Q:“When you were going down the stairs did you put your feet down flat onto the stairs?---
A:Yes, one, left, right, left, right.
Q:So you put them down carefully flat, altogether?---
A:Yes.”[31]
[31]T124, L23-26
57 The plaintiff gave evidence that his mother arrived in Australia in about 2005 or 2006 and that a brother and sister had been in Australia since before the incident. The plaintiff also confirmed that prior to the incident, that emotionally he felt “good” and was taking Avanza for flashbacks of the War. When taking such tablet, he was “fine”. He also confirmed that prior to the fall, he was not having any pain in his right leg.
58 The plaintiff confirmed his earlier evidence that prior to the incident, although he needed some help at home, he did not have a problem emotionally; his right leg was not in pain, and he was able to walk and drive without any pain in the leg. When pushed about the need for such help, the plaintiff effectively said he just wanted “companionship”.
59 The plaintiff described that he commenced treatment with the psychiatrist, Dr Ibrahim, more than nine years ago and certainly before the advent of his cancer condition. Furthermore, he continues to see Dr Ibrahim every two to three months. The plaintiff accepted that he made an application for a disability pension on 13 September 2003 on the basis that his psychiatric condition – the Post-Traumatic Stress Disorder – was so bad that he was unable to get a job or hold a job.[32]
[32]See exhibit 8 headed “Treating Doctor’s Report” signed by the plaintiff and Dr Ibrahim dated 13 September 2003
60 Furthermore, he accepted that his general practitioner, Dr Mostafa, also supplied a report countersigned by the plaintiff on 17 September 2003 in support for his disability pension.[33] In particular, he accepted that Dr Mostafa stated:
“History of torture in Iraq, he was in prison, his depression was aggravated by developing cancer in his right lower limb.”
[33]See exhibit B, further “Treating Doctor’s Report” signed 17 September 2003
61 He accepted as correct that as at October 2003, his psychiatric state related to what had happened to him in Iraq and was still a very great problem for him, requiring treatment from Dr Ibrahim.
62 The plaintiff also referred to exhibit 3 (tendered by the plaintiff) which application was supported by his then physiotherapist, Ms Jenny Meyers, who stated that the plaintiff:
“… does not have active control of his right knee making it very difficult to negotiate the steps. In addition he has a lot of thigh pain.”[34]
[34]T135, L16-19
63 The plaintiff accepted that as at April 2006, he needed, on occasions, urgent psychiatric treatment and personal assistance from his brother and sister.
64 In particular, he accepted that in April 2006, he was having severe flashbacks; insomnia causing sleep disturbance; nightmares of torture; depression and suicidal tendencies. Furthermore, he accepted that in April 2006, he was seeing doctors or people like doctors, such as physiotherapists, two to three times a week.
65 When queried about his documentation suggesting that he “needs continuous support and sharing cleaning, washing, ironing and shopping”, the plaintiff essentially said he could not remember. He did accept that as April 2006, his psychiatric condition was such that he needed someone sleeping in the same house as him.
66 He was taken to his application dated 3 September 2007[35] (some two months prior to the incident), and he agreed that the document stated that the author declares that all the information provided is true and correct. The plaintiff accepted there as correct the history given by Dr Marcus that the Collingwood unit was too far from his other family members and social supports. In particular, Dr Marcus refers to medical providers for his health problems such as a general practitioner and specialist and also there is a reference to the plaintiff being unhappy at the Collingwood unit because of disturbances at night and drug users being in the area.
[35]See exhibit E
67 He also accepted the history given by Dr Marcus as at September 2007 that he attends the general practitioner and the psychiatrist every few weeks and at times needs urgent appointments and more frequent visits. He also accepted that his siblings were providing care and assistance on a regular basis five times a week – although he could not remember exactly.
68 Again, he accepted that as at September 2007, he was unable to drive as a result of side effects from the psychiatric medication.
69 He was taken to the document stamped 27 September 2007[36] which he accepted was signed by him. In that document, he states:
“I’m very sick and living under medication. [W]here I’m living right now it’s a very bad and dangerous area, I’m surrounded by dangerous drugs people day and night, I can’t sleep … .”[37]
[36]See exhibit E
[37]PCB 153
70 When queried as to what he meant when he said “I’m very sick”, he stated:
“Like I’m taking tablets, like flashbacks, that’s what.”[38]
[38]T163, L20-21
71 In the same document, he talks about needing “major help and care from my family” which he explained to mean “moral support”. Furthermore, he makes reference to thinking of killing himself. When queried whether or not he had suicidal ideation in September 2007, he responded “I can’t remember”.
72 He denied that he was attempting to mislead the jury as to his emotional state leading up to the incident when he gave his evidence-in-chief.
73 He accepted that in the letter dated 27 September 2007, he did not make mention of any unsafe stairs leading up to the laundry.[39]
[39]See exhibit E, letter dated 27 September 2007
74 The plaintiff gave evidence that his now wife has been his carer. When queried as to whether:
(a)he told the general surgeon, Mr Kenneth Brearley[40] whether he had suffered any psychological condition and in particular, a Post-Traumatic Stress Disorder prior to the incident;
(b)whether he had told Mr Brearley that he had no pain “to speak of” in his leg before the incident;
(c)whether he told Mr Brearley about needing family members to help with his daily activities prior to the incident;
(d)whether he told Mr Clive Jones, orthopaedic surgeon,[41] that he had a Post-Traumatic Stress Disorder for some time prior to the incident;
(f)whether he told Mr Brearley or Mr Jones that he had slipped on a foreign substance on the stairs;
the plaintiff answered “I can’t remember”.[42]
[40]Mr Brearley examined the plaintiff on 6 March 2009
[41]Mr Jones examined the plaintiff on 5 May 2011 at the request of his solicitors
[42]See generally T175, L4 – T176, L5
75 Furthermore, when queried as to the frequency of taking the medication, Endone, the plaintiff stated that he would take such medication when the pain is bad, but could give no other indication as to the frequency.
76 The plaintiff confirmed that when he was coming down the stairs immediately prior to the incident, he had the basket in both hands, and when it was suggested to him that he could not see the stairs because of the basket, the plaintiff replied “I can’t remember”.[43]
[43]T179, L30-31
77 The plaintiff confirmed he stopped taking his washing to the laundromat because Collingwood was not a “safe place to be at night time”. The following evidence then ensued:
Q:“You weren’t working?---
A:What was that?
Q:You weren’t working at the time you were on a disability
pension?---
A:Yes.
Q:Did you have anything in particular you had to do during the day time?---
A:No.
Q:Was there anything that would have stopped you getting your washing done at a laundromat during the day time?----
A:Day time.
Q:The reason you gave for stopping going to the laundromat was because you felt uncomfortable going there at night?---
A:That’s right.
Q:If the stairs were such an issue why didn’t you go to the laundromat during the day?---
A:Just didn’t go.”[44]
[44]T180, L21 – T181, L2
78 Furthermore, the plaintiff was cross-examined as to why he did not employ some other type of bag for the carriage of his laundry up and down the stairs. In particular, the following evidence was given:
Q:“Did you think of using a different sort of container or something to carry the washing so that you were able to hold it in one hand and grab onto the rail?---
A:When I go up?
Q:When you’re coming down or both?---
A:No, when I go up it’s easier, when you come down because the clothes and the basket I can handle in one hand because it’s not heavy.”
HIS HONOUR:
Q:“But going down or - - - ?---
A:When I go up, I get up the rail with my right-hand but if I want to come down it’s very, very difficult because the clothes are wet and it’s going to be very heavy, I can’t handle in my hand.
Q:Did you think of making two trips so you could go downstairs holding onto the rail?---
A:I can’t handle the rail.
Q:But if you had half the washing you would be able to?---
A:I can’t remember, I can’t see anything.
Q:Did you think about using a bag that you could put over your shoulder with your washing, so that you could hold onto the rail as you went up and down the stairs, some other bag other than this basket to carry your washing?---
A:Bag?
Q:So you were able to hold onto the hand rail when you were coming back down the stairs?---
A:I want to descend the stairs, I can’t hold the rail, okay, because my clothes is very heavy and wet.
Q:But did you ever think of using something other than the washing basket to carry your clothes?---
A:No.”[45]
[45]T181, L3-30
79 The plaintiff also gave evidence when questioned about:
§ coming down the stairs with only half a load at a time so that he could hold the basket with one hand and use the other hand to hold the rail;
§ using a different type of bag to hook over his shoulder so he could hold onto the rail;
§ requesting members of his family who came on a regular basis to help him;
that he did not think of it or he would not force anyone to help him.
80 Under re-examination, the plaintiff gave evidence as to what he meant when he described the stairs as being “very tight”. In particular, the following evidence was given:
Q:“What did you mean by saying that they were very tight?---
A:Very tight, I think everybody saw the steps, it’s a small one, it’s not enough for my foot, I have a big foot, I’m wearing 11, between ten and a half and 11, okay, when you put your feet on it, it’s quarter of the feet going like on the space, you know what I mean? Okay, even if I don’t have any operation or bad leg, it’s not safe to go up or to come down.”
HIS HONOUR:
Q:“When you use the word tight, you’re referring to the flat part of the stair, are you?---
A:Yes, I mean, Your Honour, the small step and what they call it, it’s tight for maybe my English is no good, that’s why.
Q:Do your best?---
A:Small, like it’s not enough for the foot.”[46]
[46]T193, L13-27
The evidence of Mr Kenneth Brearley
81 Mr Kenneth Brearley gave evidence on behalf of the plaintiff. He described himself as a legally qualified medical practitioner with various surgery fellowships. He practices as a trauma surgeon.
82 He consulted with the plaintiff on 6 March 2009, at the request of the plaintiff’s solicitors.[47] At the time, he obtained a history, made an examination and formed opinions as to the diagnosis and prognosis.
[47]See report dated 16 March 2009 at pages 76-83 PCB
83 In particular, he obtained a history of the incident in these terms:
“He states one day in late October 2007 (he was unable to recall the exact date) he slipped on a step in the block of flats where he lived. He had been in the laundry washing his clothes and as he descended the steps he lost his balance and slipped and fell 15 steps to the bottom of the stairwell. In the fall he suffered a fracture of the right femur which had previously been internally fixed with an intramedullary rod.”[48]
[48]T196, L20-29
84 After the fall, he was admitted to St Vincent’s Hospital, where he remained for approximately one week. On 19 February 2008, he was re-admitted to hospital and underwent surgery, where a new intramedullary rod was inserted into the fight femur. Post-surgery, he noted that the right leg was shorter than his left. Mr Brearley noted that such shortness of the leg was not made good by the bone graft undertaken by the plaintiff.
85 In particular, Mr Brearley informed the Court that he obtained a history from the plaintiff that prior to the incident, he was not having any pain in the leg “at all” but since the incident, he has constant discomfort or pain in the thigh and has to take strong analgesics, including Endone. Furthermore, Mr Brearley obtained a history that the plaintiff has been “seriously depressed” since the incident and has attended a psychiatrist regularly on a monthly basis.
86 On examination, Mr Brearley observed effusion into the right knee and tenderness over the knee. In particular, there was marked shortening of the femur, resulting in a 4-centimetre difference between the right leg compared to the left.
87 In particular, Mr Brearley gave the following evidence in relation to the shortening of the leg.
Q:“If I could stop you there for a minute, could you explain to the members of the jury where in the bone is that shortening?---
A:Around the fracture site.
Q:How is that there is a 4 centimetres - - -?---
A:Must have been some absorption of bone, I presume absorption of bone is responsible for the shortening, there was a definite shortening of the thigh bone from 91, it was 91 compared to 95 for the side so that’s what I made anyway.
Q:What symptoms could that result in, a shortening of 4 centimetres?---
A:It’s beyond what is acceptable.
Q:What should [be] acceptable?---
A:Up to about 2 centimetres.
Q:And thereafter?---
A:Thereafter it becomes symptomatic and he would be walking with a limp and be putting a strain on the hip and putting a strain on the lumbar spine too because that becomes slightly curved to compensate for the shortening so it’s a significant shortening.
Q:If you could continue, there is a 15 degree from your report?---‘There is a 15 degree external rotation deformity of the right femur too.’
Q:Is the shortening of the femur something can be treated or operated on?---
A:Not easily, no.”[49]
[49]T202, L7-28
88 When requested to give a specific diagnosis to all injuries suffered by the plaintiff, Mr Brearley stated:
“This is complex. In 2003 he was diagnosed with a malignant fibrous histiocytoma of the right anterior thigh. This was treated at the Peter MacCallum by preoperative irradiation followed by radical surgery involving a wide excision of the tumour mass in the thigh with resection of the three large muscles of the anterior thigh. Prophylactic nailing of the right femur was performed to prevent pathological fracture. Despite this he did in fact suffer a fracture. This occurred in October 2007 when he had a heavy fall down a large flight of stairs at his accommodation centre. Treatment for this fracture involved removing the intramedullary nail, inserting a new one and carrying out a bone graft and plating of the femoral fracture.
…
He made a very inadequate recovery from this procedure, and he has severe symptoms now which were not present prior to the fall. He has constant pain in the thigh, he has shortening of the leg as a result of the fracture and accordingly he walks with a severe limp and has to use a stick constantly now. Prior to the fall of October 2007 he says he was not using a stick and he was walking without a limp and he was having no significant pain.”[50]
[50]T203, L17 and T204, L9-17
89 Mr Brearley expressed the opinion that the incident has “severely exacerbated and worsened his pre-existing condition”[51] and, in particular, requires Endone regularly for his severe pain and regular psychiatric management for his depression. He is of the opinion that the shortened leg was not amenable to further surgery and should be treated by simply wearing a shoe with a built up heel. He did note that union does appear to have occurred in the right femur.
[51]T204, L28-30
90 Under cross-examination, Mr Brearley explained that resection of three vastus muscles in the right thigh means that such muscles have been removed from the thigh. Mr Brearley confirmed that such muscles are involved in all movements of the knee. The following evidence was then given:
Q:“If someone has their vastus muscles resected to the extent that Mr Georges has had, does that create difficulties for them in getting up and down the stairs?---
A:It certainly would, yes.
Q:And what is the difficulty that is created by having those muscles cut away from the leg?---
A:You would have difficulty in flexing his thigh, flexing his knee.
Q:Flexing, that’s?---
A:Bending.
Q:What about taking the weight on his leg as he moves down or upstairs?---
A:That would be difficult for him too, his whole knee is compromised, his whole leg seriously compromised by the removal of all those muscles.
Q:And compromised in its ability to get out and about, go up and downstairs and so forth and strength and stability?---
A:Yes.
Q:So it wouldn’t be at all surprising that somebody with a leg that’s had these muscles cut out might fall as they are going up or downstairs?---
A:No, it would be quite likely yes, he would fall.
Q:So it’s not necessary to posit some other cause for the fall such as a slippery bit of stairs or inadequate stairs, with this leg there’s every chance someone will fall down as they go down an ordinary set of stairs?---
A:More likely than anyone else, yes.
Q:I just want to take that further, given Mr Georges’ pre-existing condition with his leg that might be a sufficient explanation for the fact that he fell down these stairs, the stairs might be perfectly safe stairs?---
A:Yes.
Q:So someone with this leg there is every chance they can fall downstairs even if the stairs are otherwise perfectly ordinary, safe, every day stairs?---
A:They are more likely as I say than a normal person to fall.
Q:It wouldn’t surprise you someone with Mr Georges’ condition in his leg fell down a set of stairs even if the stairs were ordinary safe stairs?---
A:No.”[52]
[52]T210, L6 – T211, L10
91 Mr Brearley understood the sequence of the events giving rise to the incident was that the plaintiff “lost his balance, maybe he missed the step in some way, lost his balance, slipped further and fell to the bottom of the stairwell”.[53] Mr Brearley gave evidence that the plaintiff gave no history of “slipping on a puddle of urine or Pepsi or some other slippery substance”.[54]
[53]T212, L10-12
[54]T212, L20-21
92 Mr Brearley accepted that the plaintiff conveyed to him the impression that he had had no psychiatric symptoms of any consequence prior to the incident, nor did he convey to Mr Brearley that he was regularly getting help from his family in his activities and daily living in the months prior to the incident. In this respect, Mr Brearley noted that it was his “understanding” that the plaintiff was having no pain and was coping moderately well with the significant disability he had prior to the incident.
The evidence of Dr Basman Marcus
93 Dr Basman Marcus gave evidence on behalf of the plaintiff. He described himself as a duly qualified medical practitioner carrying on general practice at the Settlement Road Clinic, Thomastown.
94 In particular, Dr Marcus gave evidence that he is of Iraqi background and he speaks the same native language as the plaintiff, which is Assyrian or Akkadian language.
95 Dr Marcus gave evidence that he first consulted with the plaintiff on 13 April 2005 when the plaintiff was complaining of right leg pain as a result of falling on his right leg the day before. At that time, Dr Marcus became aware of the pre-existing loss of muscle bulk in the right thigh as a result of the previous surgery. At that time, he prescribed rest, analgesia and suggested a review after x-ray.
96 On review on 29 April 2005, pain in the right leg and knee had settled.
97 During his evidence-in-chief, Dr Marcus was taken to various consultations as detailed in his notes, including:
(a)30 January 2006 – when it was reported that the plaintiff was attending the “Peter Mac” for a follow up of his tumour undertaken by his treating surgeon, Mr Powell.
Dr Marcus confirmed that the plaintiff, at that time, was attending a consulting psychiatrist, Dr Ibrahim, who had diagnosed a Post-Traumatic Stress Disorder with Major Depression resulting from the plaintiff’s experiences back in Iraq. Dr Marcus also noted the plaintiff had been prescribed Avanza, which is an anti-depressant.
(b)15 March 2006 – when it is noted that the plaintiff had an appointment with Dr Ibrahim, and while waiting for him, felt unwell and vomited. It was noted that the plaintiff does not sleep well, and Dr Marcus noted that there was stress-induced sleep deprivation and nightmares. On 27 March 2006, Dr Marcus noted the plaintiff “feels better”.
(c)19 April 2006 – when it is noted that the plaintiff lives in a unit at Collingwood and which is small and far from a medical centre and other facilities. Also, it was noted that, according to the plaintiff, there were social problems in the area, and he was not acclimatising to the area because of psychological problems.
(d)24 April 2006 – when Dr Marcus filled in a form for public housing accommodation. In that form, under the heading “Client medical history”, Dr Marcus accepted that he stated:
“The current accommodation is far from his family members whom he needs to constantly to provide help and home assistance to him. They all live in the northern suburbs, Coburg, Lalor. He is also too far from the out clinic, his psychiatrist whom he sees in Bundoora, he also need to attend Peter Mac Institute for treatment.”[55]
[55]T232, L23-29
Dr Marcus also agreed that later in that document under the heading “personal care”, that:
“His brothers and sisters provide personal assistance at home and home help four times a week. Also he requires help with transport because he’s unable to drive due to his psychiatric medication’s side-effects.”[56]
[56]T233, L1-5
Also later in that document, Dr Marcus states:
“He has been suffering from depression for a long time even before arriving in Australia. He’s been prescribed Avanza tablets three a day, these medications can cause drowsiness and other side-effects.”[57]
[57]T233, L17-21
(e)8 May 2006 – wherein Dr Marcus notes that the plaintiff was to see Dr Ibrahim on 16 May 2006 and that the sister of the plaintiff, Rita, was his “carer”.
(f)14 March 2007 – wherein Dr Marcus obtains a history that the plaintiff was suffering headaches and dizzy episodes and foggy vision. Furthermore, the plaintiff was at home and did not go out and feels “down and depressed”.
Dr Marcus confirmed that insomnia has “always” been a problem for the plaintiff.
(g)24 July 2007 – when the plaintiff complained of “cold feet after his surgery” and “headache and light-headedness”. It was noted that the plaintiff continues to see Dr Ibrahim once a month.
Dr Marcus accepted that the reference to the cold feet after surgery was the reference to the initial surgery for the resection of the thigh muscle. Dr Marcus gave evidence that he considered that it was “possible” that the light headedness was a side-effect of Avanza.
(h)3 September 2007 – when Dr Marcus recorded that the plaintiff was having a lot of problems coping at his residence from people who are residing in the premises who use drugs, threaten and abuse him. It was noted that he continues to see Dr Ibrahim, who “added Zyprexa, 500 milligrams a few weeks ago”.
Dr Marcus gave evidence that such drug is an anti-psychotic medication. Dr Marcus also confirmed that he completed a form, dated 3 September 2007, wherein he stated, amongst other things, that the plaintiff was unable to drive at present due to his psychiatric condition and the side-effects of his medication. Furthermore, he again stated that the plaintiff required a personal carer and assistance on a regular basis five times a week.
(i)16 January 2008 – when Dr Marcus obtained the history of the incident and the plaintiff was going to undergo further surgery at St Vincent’s Hospital on 12 February 2008. At that stage, Dr Marcus obtained a history that the plaintiff experiences “dizziness” on changing positions and was not sleeping well. Furthermore, he continued to see Dr Ibrahim.
(j)3 March 2008 – when Dr Marcus obtained a history that the plaintiff underwent right leg surgery on 19 February 2008 at St Vincent’s Hospital. At that time, he was still having pain and had been prescribed Keflex, which is an antibiotic. Dr Marcus noted on that day, that the surgery involved a further nail for the right femur involving bone graft and a bone stimulator.
On that day, Dr Marcus prescribed Endone for the plaintiff, and in his evidence, stated that such drug is an opiate and can be addictive.
98 On 3 March 2008, Dr Marcus prescribed the plaintiff Endone, and thereafter, on 21 April 2008, 16 Endone, and thereafter, on 21 April 2008, 16 June 2009, 28 June 2011, 11 January 2012 and 22 February 2012. According to Dr Marcus, his records would suggest that the prescription of Endone only occurred after the incident.
99 When queried as to the effects that the incident would have had on the plaintiff’s social, domestic and recreational activities, Dr Marcus stated:
“Fredon’s mobility and leg function were already restricted because of the previous surgery to his right thigh due to removal of a malignant tumour of skeletal muscle. The injury and facture of femur further restricted his activities and function of the leg. This in turn affected his activities of daily living, domestically and also socially. In addition, this injury had a significant negative impact on his psychological condition. His depressive symptoms worsened during the period of the injury and following his surgery due to the increasing pain, intensity, anger and frustration.”[58]
[58]T245, L27 – T246, L7
100 Dr Marcus gave evidence that he has continued to see the plaintiff since 2008, during which time he has received “regular reports” from the treating surgeon, Mr Powell. In particular, reference was made to the following notes from Mr Powell:
(a)23 July 2008 – wherein Mr Powell noted that the plaintiff continued to be free of any cancer and that the plaintiff was now walking without the use of crutches.
(b)28 January 2009 – wherein Mr Powell noted that after review on that day, the plaintiff developed some mild discomfort in his right thigh at the site of his previous surgery and also noted the right leg is shortened. According to Mr Powell, his current x-rays show that there has been approximately a one-centimetre shortening of the femur, although the bone seems to have united in a satisfactory position.
(c)1 July 2009 – wherein Mr Powell noted that the plaintiff continues to be cancer-free and noted that the plaintiff “will likely be cured of his disease”. Mr Powell also notes that the fracture of the right femur continues to heal radiographically, although it is not “yet fully united”. Mr Powell notes that because the fracture is healing slowly, he was organising for the plaintiff to be seen in the Orthotics Department at the hospital to have an ischial bearing brace made, which will include a heal piece and a knee hinge.
(d)28 April 2010 – wherein Mr Powell notes that current x-rays reveal that the fracture is uniting soundly and that clinically, the plaintiff no longer had much discomfort and is walking without aids.
101 In answer to a question from the Court, Dr Marcus stated that when he prescribes Endone, it is only for one packet of Endone which, to his knowledge, contains 20 tablets.
102 Under cross-examination, Dr Marcus confirmed that he halved the dosage of Zyprexa on 16 January 2008, being the date he consulted with the plaintiff after the incident. Dr Marcus halved such dose in part because one of the side-effects can include dizziness and he wished to reduce the risk of dizziness. When seen by Dr Marcus on 16 January 2008, or at any time, no history was given that the plaintiff slipped on a pool of liquid or some foreign substance on the stairs. He was also queried as to whether or not he understood the fall to be consequential upon his weak right leg. Dr Marcus stated:
“Possible but I don’t know exactly how, he just told me he fell on the stairs and broke his leg and it was a few months after when I saw him and he’s already being managed so I didn’t go to the really more details of that.”[59]
[59]T260, L21-25
103 Dr Marcus also gave evidence that he accepted the validity of Mr Powell’s assessment in April 2010 that the bone was uniting soundly and that the plaintiff no longer had much discomfort. Furthermore, Dr Marcus was referred to his note on 4 August 2010 when he recorded that the plaintiff had been seen by Mr Powell one week ago and “all good”.
104 Dr Marcus was cross-examined about applications he signed in April 2006 and September 2007 supporting the plaintiff in seeking alternative accommodation. In particular, Dr Marcus confirmed that in the document in September 2007, he advised, under personal care, that:
“His siblings provide personal care and assistance on a regular basis five times a week.”[60]
[60]T264, L4-6
105 When queried about the nature of the personal care, Dr Marcus advised that such care involved:
“House duties, transport getting help with shopping, washing, cooking, because I understand his accommodation, he didn’t have a lift so he had to go up and down the stairs every day.”[61]
[61]T264, L16-21
106 Later, when queried about the reference to using stairs every day, Dr Marcus clarified that by saying that the reference was to a laundry which had to be used often.
107 In particular, Dr Marcus gave the following evidence:
Q:“So it is your understanding again based on what Mr Georges has told you, as at September 2007 he was psychiatrically or emotionally so affected that he needed regular assistance?---
A:Yes.
Q:And also that his leg was a sufficient problem that he was not capable of engaging in the physical activities of every day life and he needed assistance?---
A:Yes, he needed assistance, that’s right.
Q:Isn’t it entirely possible then, doctor, that Mr Georges fell down these stairs because he has a weak leg that made it difficult for him to get downstairs?---
A:It’s possible but he fell because his leg was weak, that’s right.”[62]
[62]T267, L23 – T268, L4
108 Dr Marcus accepted that the frequency of prescription for Endone of more recent times had increased (16 June 2009, 28 June 2011 and 11 January 2012).
The evidence of Mr Clive Jones
109 With the consent of the defendant, Senior Counsel for the plaintiff read a medical report from Mr Clive Jones to the jury. Mr Jones, in his report, described himself as a legally qualified medical practitioner with specialist surgery qualifications. He practised as an orthopaedic surgeon and examined the plaintiff on 5 May 2011 at the request of the defendant’s solicitors.
110 Mr Jones obtained a history from the plaintiff, made an examination and expressed various opinions.
111 Mr Jones obtained a history from the plaintiff that prior to the incident, that he was “largely pain free” in relation to his pre-existing condition and there had been no tumour recurrence. The plaintiff stated that he was “contemplating a return to work” prior to the incident.
112 Furthermore, Mr Jones obtained a history that the plaintiff “was coming down stairs carrying a basket full of washing. The stairs were narrow and rather slippery. He fell, fracturing his right femur around the previously inserted nail.”[63]
[63]T279, L31 – T280, L4
113 At the time of the examination, the plaintiff made complaints of significant levels of pain in the right thigh generally, and in the right groin, for which he was treated with Panamax and Panadol. Furthermore, he informed Mr Jones that he “constantly” needs a stick to get about and is no longer able to climb stairs. In particular, the plaintiff gave a history that he was conscious of an external rotation deformity of the right leg brought about by significant shortening of such leg.
216 For example, Lightfoot referred to the Building Regulations which provide, amongst other things, that steps at that time “be provided with a non-slip finish throughout or with an approved non-skid strip near the nosing”. When pointed out to him that the Standard did not require steps that are otherwise adequate in their slip resistance to have scribing, Lightfoot stated:
“Well, as we’ve just quoted the standards, there’s an ‘or’ there, yes.”[97]
[97]T424, L28-29
217 In such circumstances, Lightfoot ultimately accepted that what he was really saying was that even if stairs had adequate slip resistance, they can be “improved” by having scribing on them.
218 Such evidence should be compared to that given by Langdon, who I found to be an impressive witness and who was prepared to make reasonable concessions throughout his cross-examination. Understandably, much was made by those acting for the plaintiff of the service of the second report from ATTAR four days into the trial. Langdon gave evidence that he and another employee of ATTAR attended the premises on 14 December 2010 on instructions to make an examination of the stairs involving the slipperiness of the stairs, and to take various measurements of the stairs and evaluate such stairs against the appropriate Standard or Code.
219 The result of such attendance was a report dated 17 December 2010 which was tendered ultimately in evidence. Langdon gave evidence that he was informed by a higher officer in ATTAR that the solicitors acting for the defendant requested that the report be split into two and thus the creation of the first and second reports. Although not totally clear why this was requested by the solicitors for the defendant, I have assumed that the thrust of the case by the plaintiff as initially pleaded was that the stairs were “slippery” which gave rise to the fall by the plaintiff. In such circumstances, I have assumed that the solicitors forwarded the first report in defence of that allegation. The second report, which deals with the measurements, does give rise to other shortcomings in the stairs which arguably may have played some role in the incident – for example, the slightly lower balustrade at the area of the stairs where the fall commenced. Presumably, those acting on behalf of the defendant did not wish to effectively arm the plaintiff with further allegations.
220 Of course, the difficulty with such a course puts the expert into a difficult position, bearing in mind the Expert Witness Code of Conduct requires that the expert accepts the following:
“… all of the inquiries we believe are desirable and appropriate, and no matters of significance that we regard as relevant have, to our knowledge, been withheld … .”
221 The creation of the two reports wherein in each report, there is no reference to the other, has the potential to offend such Code.
222 Leaving aside whether such a course of action undertaken by the solicitors for the defendant was appropriate (an issue which is not the subject of this judgment), I do reflect that such a course of action would almost always lead to the situation which happened in this trial – reference sooner or later would have to have been made to the other examination findings by ATTAR.
223 In any event, I do find that Langdon bona fide believed that he complied with such Code and gave frank evidence about his examination findings and his opinions based on his expertise. I might add, there was no attack or submission by Senior Counsel for the plaintiff on the expertise of Langdon.
224 After a consideration of all of these matters, I formed the view that Lightfoot was more disposed to highlight the purported stronger aspects of the plaintiff’s case rather than expose the weaker aspects of the plaintiff’s case. When evaluating the expert evidence, I take this into account.
Factual findings relevant to the issue of liability
225 After a consideration of all of the evidence, I make the following findings of fact relevant to issues of liability:
(i) Consistent with the evidence of Lightfoot, the stairs were constructed of concrete and were angled at approximately 37.5 degrees and consisted of fifteen risers. The stairs were 1.025 metres wide and had riser heights at the bottom of the steps of 175 millimetres, with the average riser height being between 190 to 199 millimetres. The going distance of the stairs varied from 270 to 275 millimetres. There was a handrail located on the outside of the stairs on the balustrade side, which was approximately 40 millimetres wide with a curved top, and 15 millimetres deep;
(ii) The nosing of the stairs was made of concrete with a minimal radius, and the treads did not have any grooving across the nosing or any slip-resistance treatment on the surface;
(iii) Consistent with the evidence of Lightfoot and later, Langdon, the applicable Regulations in relation to the construction of the stairs was the Victorian Building (Amendment) Regulations 1994 No 1, which related to the Victorian Building Regulations 1983;
(iv) Consistent with the evidence of Langdon, I find that the stairs did not comply with such Regulations in relation to the following matters:
(x) The third and fourth steps from the bottom of the stairs had risers slightly above (1 millimetre) the maximum allowable height for a stairway riser. Given the position of the stairs, such slight variation has no relevance to any issue in this matter;
(y) A difference in the riser height between the first and second step was noted, where a 9-millimetre change in the section was measured between the going on the top most step and the level 1 concourse. Langdon notes that although there is no strict tolerance for these items as specified in the Code, these measurements are outside the recommendations of plus or minus 5 millimetres;
(z) The handrail-balustrade in the area of the top four steps of the steps was approximately 845 millimetres, which did not comply with the requirement of such handrails being not less than 865 millimetres. Accordingly, the handrail-balustrade at that point was 20 millimetres lower than the required standard;
(v) Consistent with the evidence of both Langdon and Lightfoot, the stairs were well lit;
(vi) Consistent with the testing undertaken by Langdon, which was accepted by Lightfoot as being undertaken pursuant to the relevant Standards, the dry slip-resistance test gave rise to a finding that the risk of slipping in dry conditions was “moderate to very low” and that the risk of slipping under wet conditions was considered “low”;
(vii) The Victorian Building Regulations 1983, as amended, provided, in part:
“(3) The treads of a flight of stairs in a stairway shall—
(a)be constructed within the limits of shape and size illustrated in Figure 24.25 and specified in Table 24.25; and
(b)be provided with a non-slip finish throughout or with an approved non-skid strip near the edge of the nosings.”
Langdon accepted and ultimately when pressed, Lightfoot accepted that the Regulation did not require an approved non-skid strip near the edge of the nosings if the treads had a non-slip finish throughout. The disjunctive nature of such Regulation would seem clear enough;
(viii) Consistent with the evidence of Langdon and ultimately with the evidence from Lightfoot, I do find that the application of inbuilt carborundum on the nose of steps is for industrial applications mainly, and not known to be used in domestic or situations where there are stairs in units;
(ix) I do accept, consistent with the evidence of both Langdon and Lightfoot, that the absence of any grooving across the nosing of the step or any slip-resistant treatment on the surface step, made it more difficult for a person to determine the exact location of the treads. I also find, consistent with the evidence of Langdon, that if a person steps forward onto the ball of their foot and the ball of such foot was resting on the nosing with no slip-resistant treatment or with the presence of foreign material, this increases the likelihood of slippage;
(x) That although I accept that there is an angle of repose whereby a foot at that particular angle would commence to slide down the nosing of a step, I do not accept the angle of repose as put by Lightfoot when he initially suggested it was 30 degrees and after cross-examination, he varied that to approximately 32 degrees. In this respect, I accept the evidence of Langdon that the approach by Lightfoot does not apply to the situation at hand because:
(a) Lightfoot has utilised (as he accepted) the dynamic coefficient of friction rather than the static coefficient of friction; and
(b) has assumed that the coefficient of friction obtained between a rubber and a concrete step can be applied to a leather shoe or any type of shoe on the step.
The cleaning regime
(i) I do find that the defendant entered into an agreement with GJK, which first began to perform cleaning services for the defendant at the premises in or about 2003 and that such contract was in operation at the time of the incident;
(ii) I do find that pursuant to the contract, GJK contracted to have operatives collect any hard rubbish or offensive material such as syringes, faecal matter, clean up urine or slip hazards on a daily basis, and that every fortnight, the common areas, including the stairs, are cleaned down by mop. Furthermore, there was an “at call” cleaning service operating from 8.00am to 4.00pm and an emergency after hours service;
(iii) I do find that the cleaning regime set out in the contract between the defendant and GJK is reasonable. In particular, I find:
(x) that consistent with the evidence of Dimmick, the contract manager of the defendant, the contract between the defendant and GJK had been “informed” by the outcome of various tender processes over the years, together with specifications supplied initially by a consultant specialist in the area of cleaning;
(y) there was no suggestion during cross-examination that GJK was a disreputable company or that it was otherwise unreasonable for the defendant to retain GJK to perform cleaning services. Further, no suggestion was put to Dimmick that the cleaning regime was inadequate, or was not in fact being followed or that he knew or ought to have known of this and done something about it;
(s) there was no evidence of previous falls on these stairs to give rise to any suggestion that further cleaning was necessary;
(iv) Accordingly, bearing in mind the defendant only has to act reasonably, and this would ordinarily involve delegating things such as cleaning to expert cleaning companies, I do consider the regime of cleaning was appropriate and reasonable.[98]
[98]The duty of an occupier (or landlord) is not a non-delegable duty (see, for example Complete Scaffold v Adelaide Brighton Cement [2001] SAS CI99 at [41] – [43]; AD & S McLean v Meech (2005) 13 VR 241; Jones v Bartlett (2000) 205 CLR 166)
The fall by the Plaintiff
226 Although having found that the regime of cleaning was reasonable and appropriate in the circumstances, I do find, consistent with the evidence of Dimmick, that it was “not uncommon to find syringes, urine, faeces, cigarette butts, drink containers” and the like in the common areas of the premises, including the stairs;
227 In particular, based on the evidence of the plaintiff, I do find:
§ that shortly prior to commencing his decent of the stairs on the day of the incident, the plaintiff observed the stairs to be “dirty” and were “wet and messy and looked like Pepsi, urine something like that”;
§ the wet patches that he observed were on different steps but extending from three or four steps from the middle of the steps to about three-quarters of the way up the steps;
§ that he was wearing shoes of a leather sandal-type but was unsure as to the makeup of the sole;
§ that his method of decent was to put his left foot down onto a step and then bring the right foot down next to the left foot and then place the left foot down on the next step and bring the right foot down to the left foot;
§ that the fall commenced probably two steps and at the very most three steps from the top of the stairs;
§ when he put down his feet on the stairs, he put them down “carefully flat”;
§ that, as shown on the view and described by the plaintiff, his foot, when flat on the step, overhung the edge of the step;
§ he thinks he slipped and felt himself unbalanced, causing him to fall down;
§ that when descending the stairs shortly prior to the incident, he was carrying a basket of damp washing in both hands and accordingly, had no hand on the balustrade;
§ that it is probable that he was unable to see the stairs in front of his feet because of the carriage of the washing basket.
228 In his oral submissions, Senior Counsel for the Plaintiff submitted that a reasonable inference should be drawn by the Court that the plaintiff did slip on some type of foreign substance, notwithstanding that the plaintiff had no knowledge on what, if anything, he slipped on.
229 After a consideration of all of the evidence, I consider that it is inappropriate to draw such an inference. I am not prepared to make such an inference for the following reasons:
(a) In relation to the operation of inferences, it perhaps should be noted initially that, when consideration is given as to whether an inference can be drawn, it is the totality of the evidence which must be considered.[99] I refer to the Transport Industries Insurance Co Ltd v Longmuir,[100] a decision of the Victorian Court of Appeal, wherein Tadgell JA stated:
[99]See Hardchrome Engineering Pty Ltd v Kambrook Distributing Pty Ltd [2000] VSC 359 at paragraphs [173] – [174]
[100][1997] 1 VR 125, a decision of the Victorian Court of Appeal
“… That aside, it should be said that, to assess the evidence in a case like this by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”[101]
[101](op cit) at page 141
(b) In a civil case where there is no direct evidence of a fact that a party bearing the onus of proof seeks to prove, it has been noted that “it is not possible to obtain entire satisfaction as to the true state of affairs”.[102] However, the law does not require proof to the “entire satisfaction” of the tribunal of fact. I refer to the unreported High Court case of Bradshaw v McEwans Pty Ltd,[103] wherein a definition of the sufficiency of circumstantial evidence in a civil case to support proof by inference from the directly proved facts was given and in particular, the Court stated:
[102]Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 155 at page 169 per Mason J
[103](1951) 217 ALR 1
“…Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. ...
But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”
The passage in Bradshaw has been repeatedly adopted by the High Court in Luxton v Vines;[104] Holloway v McFeeters;[105] Jones v Dunkel[106] and Girlock (Sales) Pty Ltd v Hurrell.[107]
[104](1952) 85 CLR 352 and 358
[105](1956) 94 CLR 470 at 480 – 481
[106](1959) 101 CLR 298 at 304 – 305
[107](op cit) at 161 and 168
(c) After a consideration of all of the evidence, I consider the likelihood is that the plaintiff fell because his leg gave way. I note that there has never been a suggestion made by the plaintiff to any doctor, or indeed to Lightfoot, that he slipped on some foreign substance, causing him to fall. Furthermore, Mr Brearley, the trauma surgeon relied on by the plaintiff, accepted that it would be “quite likely” that someone with the pre-existing condition of the plaintiff, to fall as they are going up or down stairs. Also, Dr Marcus, the treating general practitioner, also accepted as a possibility that the plaintiff fell down because of his weak leg, or perhaps even as a result of dizziness as a consequence of medication he was placed on, and later taken off.
Of course, this must also be seen in the context that immediately prior to the fall, the plaintiff was not holding onto the balustrade, carrying a clothes basket in two hands and, as I have found, unlikely to be able to sight stairs in front of him.
Even the plaintiff gave evidence, at least initially, that his bad leg gave way, causing him to fall.[108]
[108]T85, L2
The plaintiff also had an earlier fall on stairs (although not these stairs) as reported to Dr Marcus when he first consulted with the plaintiff in April 2005.[109]
[109]T229, L28-31
Further, as submitted on behalf of the defendant, it has been recognised that stairs are inherently dangerous and the fact that someone falls is not necessarily suggestive of negligence on the part of others.[110]
[110]See Wilkinson v Law Courts Ltd [2001] NSWCA 196 per Heydon JA at paragraph [32], Meagher JA and Rolfe AJA agreeing; Hilas v Todbern Pty Ltd [2007] NSWCA 315 per Hislop J at paragraph [10(c)], McColl JA and Handley AJA agreeing; New South Wales Department of Housing v Hume [2007] NSWCA 69 per McColl JA at paragraph [93], Basten JA agreeing
There was also no evidence whatsoever that the plaintiff’s shoes or clothes had any foreign substance on them after the fall, and when properly analysed, the plaintiff’s evidence was that the spilt liquid and the damp areas were not at the location where he fell.
The case of the Plaintiff
230 As stated earlier in this judgment, there is no issue that the defendant was the occupier of the premises and relevantly controlled the stairs. Furthermore, there is no issue that the defendant owed a duty of care to the plaintiff to take care, as in all the circumstances was reasonable, to see that the plaintiff would not be injured by reason of the state of the premises and in particular, the state of the stairs.
231 Part IIA of the Wrongs Act 1958 (Vic) redefines the common law duty owed by an occupier of premises, setting out matters to be taken into account in determining the scope of the duty and whether the duty has or has not been discharged in a particular case.
232 Part IIA of the Wrongs Act states, relevantly:
“14A Definitions
In this Part—
(a)a reference to the occupier of premises includes a reference to the landlord of premises let under a tenancy (including a statutory tenancy not amounting in law to a tenancy) who—
(i)is under an obligation to the tenant to maintain or repair the premises; or
(ii)…
(b)…
14B Liability of occupiers
(1)The provisions of this Part apply in place of the rules of the common law which before the commencement of the Occupiers' Liability Act 1983 determined the standard of care that an occupier was required to show towards persons entering on his premises in respect of dangers to them.
(2)Except as is provided by subsection (1) the rules of common law are not affected by this Part with respect to the liability of occupiers to persons entering on their premises.
(3)An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that any person on the premises will not be injured or damaged by reason of the state of the premises or of things done or omitted to be done in relation to the state of the premises.
(4)Without restricting the generality of subsection (3), in determining whether the duty of care under subsection (3) has been discharged 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 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;
(fa)whether the person entering the premises is intoxicated by alcohol or drugs voluntarily consumed and the level of intoxication;
(fb)whether the person entering the premises is engaged in an illegal activity;
(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.
(5)Nothing in this section affects any obligation to which an occupier of premises is subject by reason of any other Act or any statutory rule or any contract.
14C …
14D …
14E … .”
233 The issue becomes as to whether or not, on the facts so found, the defendant breach its undoubted duty of care to the plaintiff. In considering such issue, it is inappropriate to consider the reasonableness or not of the conduct of the defendant in hindsight, knowing now that the plaintiff in fact fell on the steps.[111]
[111]See Jones v Bartlett (2000) 205 CLR 166 at paragraph [186]; Vairy v Wyong Shire Council (2005) 223 CLR 422 at paragraphs [124]-[130]
234 The plaintiff submits that:
· factor (a) – the gravity and likelihood of the probable injuries;
· factor (b) – the circumstances of the entry into the premises;
· factor (c) – the nature of the premises;
· factor (d) – the knowledge which the occupier has or ought to have of the likelihood of persons … being on the premises;
· factor (e) – the age of the person entering the premises; and
· factor (g) – the burden on the occupier of eliminating the danger or protecting the person or anyone on the premises from the danger as compared to the risk of the danger to the person
are all relevant to the circumstances of this matter.
235 Furthermore, consistent with the dicta of Neave AJ in Central Goldfields Shire v Haley & Ors[112] and that of Kirby J in Neindorf v Junkovic,[113] it is appropriate to start the analysis of a legal liability of parties affected not with the pre-existing common law but with the statutory prescription.
[112](op cit)
[113][2005] HCA 75
236 Of course, it is to be stressed that the content of the duty of care owed by the defendant to the plaintiff is to take such care “as in all of the circumstances of the case is reasonable” to see that any person on the premises will not be injured.
237 The plaintiff stresses, and indeed there is no issue that the defendant did know that the plaintiff had a disabled leg, as this was the basis on which application was originally made to have a ground-floor unit.
238 Also, the plaintiff gave evidence that approximately three weeks after taking possession of the Collingwood unit, he made enquiry as to where a washing machine was situated and was informed that the laundry was on the first floor. Furthermore, the plaintiff asserts that he informed such officer that he had a problem with his right leg, to which he was told effectively “if you don’t want it just leave it”.
239 It is to be noted that in the ensuing period after that point up until the incident, there were various applications to move to other premises – however, the thrust of such applications is that the plaintiff wanted to be closer to relatives and treating doctors. Furthermore, there was reference to him not liking the Collingwood environment because of the drug culture and the people living around him. In particular, there was no complaint about the stairs, either in the sense that he had difficulty with them or that they were dirty or that was the basis on which he wished to transfer to another unit.
240 The plaintiff submits that the defendant has breached its duty of care to the plaintiff on one or more of the following bases:
(a) The non-conforming height of the handrail/balustrade in the area where the plaintiff slipped was a “likely cause” of his injury, together with other causes. I have found that the balustrade was approximately 2 centimetres lower in the area where the plaintiff fell. I have also found that at the time of the fall, the plaintiff was not holding onto the balustrade because he was carrying a washing basket with both hands. The only evidence given by the plaintiff in relation to the balustrade was:
“I fall like that, I fell like I slipped, okay because of the bones is weak from the radiation, what they call broke, okay, and I can’t control myself. I fell on my face okay, but thank God like, I didn’t break my neck because I hold, like, on what they call it, on the rail on the wall. I’m trying just to hold because my body is heavy just not to break my neck or something happened to my face or my back.”[114]
[114]T68, L16-20
There was no other evidence, and certainly no evidence that the fall would have been prevented had the balustrade been 2 centimetres higher. Clearly enough, by not holding the balustrade, the balustrade was not a factor in the causation of the fall. I reject such submission;
(b) It was submitted that the 9-millimetre variation back from the top of the steps gave rise to a “lack of rhythm of a person who was approaching those steps unsighted”. There was no evidence whatsoever from the plaintiff that, as he approached the stairs, he stumbled or had any loss of rhythm which may have been a contributing factor to any fall that he ultimately had. It is to be stressed that the plaintiff gave evidence that his fall occurred at about the second step or at the very most, the third step down. Furthermore, as submitted by the defendant, the first three downwards steps are remarkably consistent in dimension, with a variation of no more than 1 millimetre. I reject such submission;
(c) It was submitted that because there was no scribing or the like on the stairs, there was a lack of a visual cue which was a cause of the fall. As I have found, because the plaintiff was carrying the washing basket with two arms in front of him, he was unable to see the steps where he had to place his feet and the absence of a visual cue could not be a cause of the fall. I reject such submission;
(d) It was submitted that the lack of substance curling around the extreme edge of the nose was a cause of the fall. Leaving aside any issue as to whether it be reasonable for the defendant to put some type of substance over the nosing of each stair to make them more slip resistant, I reject the submission that the lack of any slip-resistant material on the noses was a cause of the fall. In particular, as I have found, the plaintiff was placing his feet flat on the steps, bringing the left down, followed by the right to the same step, and there is no evidence whatsoever that the foot of the plaintiff was angled over the edge of the nose of the step at the time of the fall. Furthermore, as I have already found, it is unclear in any event what would be the angle of repose to which the foot would have to reach before slippage would begin;
(e) Although I have found that a reasonable inference is not open to be drawn that the plaintiff slipped on some type of foreign substance, it was submitted that the defendant had knowledge that foreign substances such as urine, Pepsi and the like could be on various parts of the stairs. In such circumstances, it was submitted that it would have been appropriate for the defendant to have slip-proof strips on such steps, knowing that such steps are prone to spillages, such as urine, soft drink and the like. I reject such submission for the following reasons:
(i) It is by no means clear that the plaintiff did “slip”;
(ii) It must be steadily borne in mind that the step complied with the relevant Regulations, save for those three matters identified by Langdon, which have no relevance to this issue. Furthermore, the steps had been tested for slipperiness in both wet and dry conditions and were not found to be “slippery”. Pursuant to the relevant Regulation, it provided that there be a non-slip finish throughout or with an approved non-slip strip near the nosing. As Langdon contended, and I accept, the disjunctive nature of such Regulation did not require that there be a non-skid strip where the stairs have a non-slip finish;
Although logic dictates that further non-slip material may increase the slip-resistance of the stairs, there was no evidence establishing that the lack of this additional slip-resistance was a cause of the fall, or as submitted by the defendant, “that if such additional slip-resistance had been added, the fall would have been prevented”.
Lightfoot ultimately accepted that, consistent with the Regulations, it could only be said that the addition of non-skid material on the stairs would improve the slip-resistance of the stairs. It is to be noted that an occupier is only obliged to take such care as is reasonable in all of the circumstances. In this sense, I do refer to the comments of Gleeson CJ in Jones v Bartlett,[115] where he stated:
[115]op cit
“The fact that a house could be made safer does not mean it is dangerous or defective.”
(f) I should add for completeness, that even if I found that the plaintiff fell because of the presence of some foreign or slippery object on the stairs or some feature to do with the structure of the stairs, the plaintiff must still establish fault on the part of the defendant. In terms of the structure of the stairs, this requires the plaintiff to identify an action the defendant could have taken that would have avoided the fall and establish that it was unreasonable in all the circumstances for the defendant not to have taken that action.
In terms of the presence of some foreign slippery object on the stairs, this requires the plaintiff to prove that the system for the cleaning of the stairs was unreasonable. The plaintiff has not done that. I also refer to the submission that the defendant should have treated the stairs specially, because it knew that the plaintiff had difficulty with stairs and was, so it was said, required to use them. However, on the evidence before me, the plaintiff was not, as I have already indicated, identifying a need to use these stairs as a reason for which the Collingwood unit was inappropriate but was rather, limiting his concerns to the distance to his doctors and family and the effect that the location was having on him given his concerns about drug users and the like. Furthermore, even on his own evidence, the plaintiff was not regularly using the stairs (about two times prior to the event). This is also in the context that the plaintiff had a paid carer, who presumably was able to assist him with tasks such as washing, had access to an external laundromat and was asserting to the defendant (in his correspondence) that he had assistance from family members several times a week with the activities of daily living.[116]
[116]See Exhibit 10 – “His siblings provide personal care and assistance on a regular basis five times a week”; and Exhibit 8 – “His brother and sister provide personal assistance and home help four times a week”.
In such circumstances, I do not accept that the plaintiff has demonstrated that it was unreasonable in any event, for the defendant not to have either refitted the particular stairs, or more properly, more stairs, with either appropriate nose covering or indeed, non-slip material on the steps.
Conclusion
241 After a consideration of all of the evidence, I conclude that the defendant has not breached its duty of care to the plaintiff, and the application must be dismissed.
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