Houghton v Potts & Anor. (No 2) - [2022] NSWSC 1778

Supreme Court

New South Wales

Medium Neutral Citation: Houghton v Potts & Anor. (No 2) [2022] NSWSC 1778
Hearing dates: 10-14 October; 7, 8 and 15 December 2022
Date of orders: 22 December 2022
Decision date: 22 December 2022
Jurisdiction: Common Law
Before: Chen J
Decision:
In proceedings 2016/144762:
(1)   Judgment for the defendants.
(2)   Order the plaintiff to pay the defendants’ costs of the proceedings.
In proceedings 2019/75534:
(1)   Judgment for the defendants.
(2)   Order the plaintiff to pay the defendants’ costs of the proceedings.

Catchwords:
TORTS - Negligence – Fall over balcony wall – Reasonable foreseeability – Foreseeability of harm
NEGLIGENCE – Duty of care – Leased premises –– Landlord’s duty of care – Whether landlord breached duty of care
TORTS – Negligence – Contributory negligence – risk of harm – Formulation of risk of – Whether defendants knew or should have known of risk of harm
NEGLIGENCE – Causation – Onus of proof - Factual causation – Scope of liability
NEGLIGENCE — Defences — Intoxication

Legislation Cited:
Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
Residential Tenancies Act 1987 (WA)
Residential Tenancies Act 2010 (NSW)
Uniform Civil Procedure Rules

Cases Cited:
Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48
Adler v Australian Securities & Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131
Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No.2) [2016] NSWSC 1123
Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149
Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146
Blacktown City Council v Hocking (2008) Aust Torts Rep 81-956; [2008] NSWCA 144
Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139
Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; [1938] HCA 34
Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33; [1991] HCA 23
Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183
DovuroPty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gauci v Commissioner of Taxation (Cth) (1975) 135 CLR 81; [1975] HCA 54
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311
Gulic v Boral Transport Ltd [2016] NSWCA 269
Hawkesbury Sports Council v Martin [2019] NSWCA 76
Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29
Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255
Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10
Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Sakoua v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405
Kassam v Hazzard [2021] NSWSC 1320
Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75
Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, 215; [1975] HCA 9
New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20
Nowlan vMarson Transport Pty Ltd (2001) 53 NSWLR 116, [2001] NSWCA 346
Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407
Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253
Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311
PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312
Ridis v Strata Plan 10308 (2005) 63 NSWLR 449; [2005] NSWCA 246
Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42
Russell v Carpenter [2022] NSWCA 252
Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19
State of NSW v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225
State Rail Authority of NSW v Schadel [2001] NSWCA 394
Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640; [1975] HCA 63
T and X Company Pty Ltd v Chivas [2014] NSWCA 235
Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35
Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19
Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62
Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19
Watson v Foxman (1995) 49 NSWLR 315; [1995] NSWCA 497
Watson v George (1953) 89 CLR 409; [1953] HCA 41

Category: Principal judgment
Parties:
Proceedings 2016/144762
Darren Houghton (Plaintiff)
Anthony Potts (First Defendant)
Julie Anne Potts (Second Defendant)
Proceedings 2019/75534
Joanne Houghton (Plaintiff)
Anthony Potts (First Defendant)
Julie Anne Potts (Second Defendant)
Representation:
Proceedings 2016/144762 & 2019/75534

Counsel:
Mr D Campbell SC (Plaintiffs)
Mr E Anderson (Plaintiffs)

Mr N Polin SC (Defendants)
Solicitors:
Beston McManis Lawyers (Plaintiffs)
Wotton + Kearney (Defendants)

File Number(s): 2016/144762 & 2019/75534

JUDGMENT

Introduction
Background
Issues for specific consideration
General principles and approach to fact finding
The strata inspection report dated 19 May 2014
The terms of the lease
The balcony wall
The events leading up to the fall
The discussion about the telescope
The discussion about “chucking” Bethany Long over the balcony
A final comment by Chris Long
Summary of findings on this ‘topic’
Where was Chris Long in the moments leading up to the fall?
Did Chris Long respond to Mr Houghton?

How the fall occurred
The version of Bethany Long
The version of Mr Houghton

The events around, and including, the accident: a summary of the findings made
The consumption of alcohol by Mr Houghton

Further findings about the witnesses
Liability
Introductory matters
The claim in contract
The duty of care owed
Breach of duty
Introduction: general principles
The case for the plaintiffs
Specific statutory defence: ss 5G, 5H and 5I of the CLA

Contributory negligence
Intoxication: s 50 of the CLA
The statutory regime
The report from Dr Dauncey dated 6 August 2017
Discussion and consideration

An objection to the report from Dr Helen Dauncey
The plaintiffs’ objections to Dr Dauncey’s report
The plaintiffs’ argument
Consideration

Causation
Introduction: general principles
Causation: discussion and consideration

The limitation defence and Part 3 of the CLA: Mrs Houghton
Orders

JUDGMENT

Introduction

On 28 December 2014 the Houghton family (Darren, Joanne and their daughter Martha) invited the Long family (Christopher, Karen and their children Bethany and Zachary (or ‘Zach’)) to their unit in Fairlight, NSW for some “nibbles and drinks”. The families were close, and they had celebrated Christmas Day that year together.
The Long family arrived at the Houghton’s unit at around 4 pm. Shortly before 8 pm, an accident occurred. Mr Houghton and Bethany Long fell over a balcony wall – some 2 metres to a carport roof below, with tragic consequences: Mr Houghton suffered injuries that have resulted in incomplete quadriplegia.
Mr and Mrs Houghton each commenced proceedings for damages alleging that the accident was due to the negligence of Anthony and Julie Potts – a liability that is alleged to derive from their ownership of the premises – and, in the case of Mr Houghton, he pursues a claim for damages for breach of contract (being the lease entered between him and Mr and Mrs Potts). Mr Houghton’s claim is for the damage and loss he has suffered in consequence of the injuries he sustained, whereas Mrs Houghton’s claim is for “nervous shock”.
The proceedings were heard together, and I made an order that the evidence in one be evidence in the other.
How the accident occurred is the principal issue in the proceedings. The competing versions are stark. Shortly stated, Mr Houghton says that the fall occurred as a consequence of a mishap following his attempt to try and lift Bethany Long away from the balcony wall. On the other hand, Bethany Long says that the fall occurred because Mr Houghton picked her up and jokingly held her out over the balcony wall “like a baby”, but he then overbalanced causing them both to fall onto the carport roof below.
These reasons address liability and contributory negligence only – damages having been agreed: in Mr Houghton’s case at $7,875,000 (exclusive of legal costs), and in Mrs Houghton’s case at $150,000 (inclusive of legal costs).
For the reasons that follow, I consider that each claim fails, and should be dismissed.

Background

A considerable number of the background facts are either admitted, or uncontroversial. In what follows I set out those matters, and they reflect my findings. (There are, however, a confined number of contested issues or issues that require further discussion, and they are separately resolved or addressed: see [46]ff, below).
The premises where the fall occurred are located at 67 Lauderdale Avenue, Fairlight, NSW (‘the premises’ or ‘the property’). It is one of 3 units in the complex which form strata plan 15255.
At the time of the accident, the owners of the property were Anthony and Julie Potts.
The evidence did not establish when the strata plan was registered. However, the parties agreed upon when it was constructed: the premises, including lot 3, “was constructed between 7 November 1978 and 28 December 1979” (Joint Agreed Fact).
At all relevant times the strata plan was managed by Robinsons Strata Management, and they had been appointed prior to 2003.
Prior to purchasing the property, the defendants inspected it in early May 2014 when it was open for inspection. They also undertook a second inspection after that time.
At around this time, Julie Potts arranged for a strata inspection report for the strata plan by Northern Beaches Strata Inspections (‘the strata report’). Northern Beaches Strata Inspections prepared a report dated 19 May 2014, and it was based upon “inspection results compiled from the records made available by the Managing Agent”. The report addressed expenses that were likely to be incurred in the near future which would deplete the funds available in the administrative and/or sinking fund – namely, the replacement/resurfacing of a concrete path in the garden areas, and also work involving the removal of “old corrugated iron formwork and timber in the subfloor area of each unit”. (The plaintiffs place some reliance upon this report in their arguments on breach, so the further content is addressed separately: see [52], below).
There is no evidence about when contracts for the purchase of the property were exchanged, but settlement took place on 4 July 2014.
By agreement that commenced on 3 July 2014, the defendants appointed Cunningham’s Real Estate (‘Cunningham’s’) to undertake the management of the premises on their behalf.
At around this time, the defendants had planned an overseas trip. They attended the property with Erin Morton, the leasing manager from Cunningham’s. Ms Morton took photographs and undertook an inspection of the premises. Following that inspection, Ms Morton advised that the smoke detectors required replacement prior to leasing the property, and Mr Potts arranged for an electrician to undertake this work. There was no discussion at all about the balcony wall, nor any mention of it by any of those who attended.
On 8 August 2014 the defendants entered into a residential tenancy agreement (‘the lease’) with Mr Houghton for the premises. The lease commenced on that day, and was for a period of 12 months. (Mr Houghton places some emphasis upon the terms of the lease – it is argued that it confers a juridical advantage to him, entitling him to sue the defendants unrestrained by the provisions of the Civil Liability Act 2002 (NSW) (‘CLA’) – and is discussed further: see [222]ff, below).
In the period following the commencement of that tenancy, the defendants were notified by Cunningham’s about some minor issues, including that a door lock was not working properly. When contacted and advised of a problem, the defendants authorised Cunningham’s to do what was necessary to have the item fixed.
On 25 November 2014 an inspection of the premises was conducted by Cunningham’s, and during that inspection they took a number of photographs that were included in a report that Cunningham’s prepared. This included photographs of the balconies at the premises. The original report was not available – only a photocopy (hence the photographs are ‘black and white’ photocopies). Nevertheless, by the description (on page 2 of the report) and the photographs of the balconies that form part of the report, it is clear that the inspections undertaken extended to the balcony where the fall occurred, and photographs were taken of it. In the inspection report, the relevant balcony is described as: ‘Balcony 3’. The report did not make any reference to any issue relating to the safety of the premises, and no mention is made of any requirement to perform any work – maintenance or otherwise – in relation to any of the balconies.
There is confined evidence about the layout of the premises. No plan of them is in evidence. The premises have three balconies. The balcony where the accident occurred is located on the eastern side of the premises. That balcony runs in a north-south direction. There is no evidence about the dimensions of that balcony. There is a photograph of the balcony, which shows the balcony wall (which is attachment ‘B’ to the evidentiary statement of Mr Houghton). As can be seen from that photograph (and as noted in the evidence from Dr Gibson), the floor of the balcony is tiled.
The kitchen area of the premises is directly off the balcony but otherwise, as I have said, little is known about the layout of the premises.
On the southern end of the balcony is a balcony wall (hereafter, ‘the balcony wall’): this is the balcony wall over which Mr Houghton and Bethany Long ‘fell’ on 28 December 2014 (The detail of, and my findings about, how the fall occurred is addressed as a separate issue – ‘How the fall occurred’: see [144]ff, below).
Beneath the balcony, at its southern end, was a carport with a sheet metal roof.
Chris and Karen Long, and their children, like the plaintiffs, are English. The Houghton and Long family met when the Long family moved to Australia in 2011, and they became close friends.
The families, and the parents in particular, socialised together including attending gatherings at the premises.
The families celebrated Christmas together in 2014. On 28 December 2014 the plaintiffs invited Chris and Karen Long, and their children Bethany and Zach, to the premises for a get-together. Bethany Long was born on 16 November 2003, and was thus 11 years old on the day of the accident.
The Long family arrived at the premises at around 4pm. The adults spent most of their time on the balcony area – specifically, that is where Mr Houghton and Chris Long spent their time, except in the period shortly prior to the fall when Chris Long went to the kitchen area.
Mr and Mrs Houghton, and Chris Long, consumed alcohol during the course of the afternoon, leading up to the accident. Karen Long, aside from a “few sips of champagne” did not consume any alcohol: she was driving, and due to look after the children of their neighbours from 7pm. (There is an issue about how much alcohol Mr Houghton had consumed, and I address this later: see ‘The consumption of alcohol by Mr Houghton’ [191]ff, below).
Karen Long was not at the premises at the time of the fall: she “had left prior to 7pm to babysit the kids of our neighbours at Freshwater”.
At the time of the fall, the only two people on the balcony were Mr Houghton and Bethany Long. Mrs Houghton had gone inside, as had Chris Long. (There is an issue about precisely what they were doing when they went inside, and the timing of when Chris Long in particular left the balcony – an issue that I address, and resolve, later: see [92], below).
At around 8 pm, the fall occurred. As I note below at [35], the ambulance was called at 7:59 pm, so the accident is likely to have occurred in the minutes before that time.
There is no doubt that Mr Houghton and Bethany Long fell from the balcony on to the carport roof below. There was, however, no precise evidence about the position on the balcony wall from which they fell, and it is not possible to make a finding about that particular matter. (Nothing, in my view, turns upon this and no party submitted that it did). What initiated the fall is the principal factual issue in dispute. I separately deal with this: see [144]ff, below.
There is no precise evidence about the distance of the fall, but it was recorded in the COPS report as “approximately two mtrs below”. This was also the estimate that Chris Long gave to the investigator appointed by the solicitors for the plaintiffs, when interviewed in April 2015.
Following the fall, the ambulance and police were called. The ambulance was called at “19:59” and arrived on scene at “20:15”.
Once the emergency services were contacted, Mrs Houghton contacted Karen Long and told her of the accident. Karen Long then contacted a mutual friend, Tracy Scott, and asked her to go to the property as Mrs Houghton was “not coping”, and she was “not sure how serious things were”.
Tracy Scott belonged to a group of friends – essentially ‘ex pats’ from the UK – that included Mr and Mrs Houghton. She had been friends with them for around three years prior to the accident.
Tracy Scott, having been contacted by Karen Long, attended the premises. The police and ambulance were already there when she arrived. She spoke with Bethany Long about what had occurred, and she was also present when the police spoke with Bethany Long. (The detail of these conversations are dealt with later: see [156]ff, below).
The police officers that attended that evening were Senior Constable Michael Townsend and Constable Madden. By the time they arrived, ambulance and rescue personnel were already in attendance.
Following their attendance on the premises, the police officers spoke with Bethany Long, Chris Long and Mrs Houghton.
Mr Houghton was treated at the scene and taken by ambulance to hospital. Bethany Long, although not significantly injured (she had injured her back), was taken to hospital by ambulance. Accompanying her in the ambulance was her father, Chris Long.
Bethany Long, following observation at hospital, was discharged. She was taken home by Tracy Scott.
In April 2015 the plaintiffs sought, and were granted, an early release from the lease.
On 18 June 2015 the defendants moved into the premises.
In 2019, the tubular stainless steel rail was added to the top of the balcony wall, but otherwise the balcony wall was not altered in any way. This is shown in the photographs taken by Dr Gibson (a consultant mechanical and biomedical engineer retained by the defendants) in March 2020. There is no evidence about the height of the tubing – that is, how high the rail sits above the top of the balcony wall.

Issues for specific consideration

In addition to the above matters, there are six other matters or issues of fact that require more detailed consideration or are contested – being: (1) some further detail of the content of the strata report; (2) the terms of the lease; (3) the balcony wall; (4) the events leading up to the fall; (5) how the fall occurred; and (6) the consumption of alcohol by Mr Houghton.
Before I address these matters, I will identify some important principles that apply to resolving contested issues of fact. I set these out in what follows.

General principles and approach to fact finding

First, ordinarily the process to determine facts involves consideration of “contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ). Where witnesses are recalling events from some time ago, a court will, if possible, “place primary emphasis on the objective factual surrounding material and the inherent…probabilities, together with the documentation tendered in evidence”: Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] (Gleeson CJ, Gaudron, Kirby and Hayne JJ).

Secondly, it is appropriate as well to recall what was said in Watson v Foxman (1995) 49 NSWLR 315, 319; [1995] NSWCA 497:

“… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Thirdly, it is clear that each of the adults who were present at the time of the fall, or in the period immediately leading up to it (Mr and Mrs Houghton and Chris Long), had each consumed a quantity of alcohol and each were, to a degree, affected by it. In my view that impacts upon the reliability of their respective versions, and I have approached what they have said with a measure of caution.
Fourthly, evidence of independent witnesses – viz., persons who have no reason to be partisan – can be important in resolving the conflicting evidence of interested parties. That is the case here where two important witnesses can each be said to be ‘independent’: Senior Constable Townsend and Tracy Scott.

The strata inspection report dated 19 May 2014

I have earlier noted, and made findings about, the strata report: see [14], above. There are other parts of that report that are relied upon by the plaintiffs, or to which reference should be made to enable a full understanding of it. They are as follows:

The owners of each of the three lots were represented on the executive committee.

In relation to the issue of whether the scheme was compliant in relation to “Fire Safety and Work, Health & Safety Matters”, the report records that it was noted in the minutes of the meeting on:

28/5/13 that no items of fire safety equipment were installed at the property therefore, annual fire safety statements were not required to be issued.
It was noted also that the Owners chose not to have a safety audit undertaken.

The report set out a history “of major building repairs and maintenance” which included “2011/2012 – Deck and handrail works – $8,638”, although there was no detail about the nature, extent and location of these works.

The report concluded with the following:

We recommend that an inspection of the subject lot and common areas be carried out by a suitably qualified Professional to assess structural adequacy including an inspection for evidence of concrete spalling, magnesite flooring problems, water penetration and any other major building faults/defects which may not be evident in the Owners Corporation records. It should be noted that many new or near new buildings contain defects requiring rectification, details of which are not always disclosed in the records made available. An inspection should also be carried out for evidence of Termites/Borers by a suitably qualified/registered Pest Control Agent.
We recommend also that appropriate enquiries be lodged with the local Government authority to determine whether there are any outstanding fire orders which may not be apparent in the records.
All liability is disclaimed in respect of any third-party places reliance upon this report unless approved by Northern Beaches Strata Inspections in writing. (Underlining added, italics in original).

The terms of the lease

As I mentioned earlier (see [18], above), Mr Houghton entered into the lease in relation to the premises by agreement commencing on 8 August 2014. The term of the agreement was for 12 months, and so was to end on 7 August 2015. (Mrs Houghton was not a party to the lease, and so the claim in contract was only advanced by Mr Houghton).
The plaintiffs’ written closing submissions made brief reference to three clauses within the lease (the submissions are contained par 36 and they repeat the terms of the plaintiffs’ opening submissions – see par 13). Those clauses were: cll 18.1, 18.3 and 18.5 of the lease. They are in the following terms:

LANDLORD’S GENERAL OBLIGATION FOR RESIDENTIAL PREMISES
18. The landlord agrees:
18.1   to make sure that the residential premises are reasonably clean and fit to live in, and
18.2   …
18.3   to keep the residential premises in a reasonable state of repair, considering the age of, the rent paid for in the prospective life of the premises, and
18.4   …
18.5   to comply with all statutory obligations relating to the health or safety of the residential premises.

These terms, or particular provisions within the Residential Tenancies Act 2010 (NSW), are argued by Mr Houghton to confer upon him an entitlement to sue for damages independently of the provisions of the CLA. (I deal with this issue later – see [215]ff, below: ‘The claim in contract').

The balcony wall

When the hearing commenced, there was confined evidence about the dimensions of the balcony wall. The defendants relied upon measurements taken by Dr Thomas Gibson, consultant mechanical and biomedical engineer (the plaintiffs agreed that he is the principal engineer and director of a consulting firm Human Impact Engineering, and has a Bachelor of Mechanical Engineering degree and a Doctor of Philosophy and Biomedical Engineering degree). No evidence was served by the plaintiffs directed to this issue. (It should be noted that each plaintiff, in the statement of claim they filed, alleged that the height of the balcony wall was 820 mm: Mr Houghton’s statement of claim, par 13; Mrs Houghton’s statement of claim, par 14).
Dr Gibson undertook a measurement of the balcony wall during an inspection he undertook of the premises, including the balcony area, on 16 March 2020. The measurements taken by Dr Gibson were: the balcony wall was 860 mm high and 230 mm wide. At the base of the wall, on the inside of the balcony there is a small lip, which Dr Gibson measured as: 30 mm wide and 100 mm high. The measurements Dr Gibson took were at a location “in the vicinity of the centre of the balustrade and to the immediate left of the third vertical from the left depicted in the photograph” that was attached to his statement. In relation to the measurements, Dr Gibson said he took “3 measurements of the height and width of the balustrade including the ‘lip’ at the bottom of the balustrade”.
When Mrs Houghton was called to give evidence, Mr Campbell SC sought to cross-examine Mrs Houghton to adduce evidence of measurements of the balcony that she had taken, a course that the defendants opposed. Each plaintiff sought leave to adduce further evidence from Mrs Houghton to prove that, in January 2015, she had measured the balcony wall with a tape measure, and what those measurements were. The defendants, as I have said, objected to that evidence being adduced, as no notice had been given that there was an issue about Dr Gibson’s measurements nor had any notice being given by the plaintiffs that they intended to adduce this evidence from Mrs Houghton.
I provisionally allowed the evidence to be led, reserving the defendants’ position in connection with it. Ultimately, the defendants took no objection to this evidence (it being later accepted by the plaintiffs that there was no need for there to be cross examination of Mrs Houghton about this, nor any submission made that there had been a failure to do so), and so I allowed the evidence.
Mrs Houghton gave evidence that in early 2015 she undertook a measurement of the balcony wall. According to her, she measured the vertical height of the balcony wall, in January 2015, at 820 mm.
The plaintiffs were also granted leave to call evidence from an insurance investigator, Michael Maher, on this issue. Mr Maher was retained by the solicitors for the plaintiffs to interview them as well as members of the Long family. His evidence was contained in a statement dated 11 October 2022 that was served during the course of the hearing. His evidence was that he had measured the height of the balcony wall as 840 mm, and that he measured “the edging/shelf at the base of the wall/balustrade to be very close to 76 mm high and 50 mm wide”.
There was no cross examination by the plaintiffs or defendants of any of the witnesses on this issue.
I do not accept the evidence given by Mrs Houghton on this issue. Although I appreciate that, generally speaking, the measurement of a dimension is not necessarily complex, the evidence sits uneasily with the measurements taken by Mr Maher and Dr Gibson. Secondly, there is no evidence that Mrs Houghton made a contemporaneous note or record of the measurement she undertook; hence, it appears that this evidence (which, to be clear, was not contained in her evidentiary statement dated 9 December 2020) is evidence of a recollection of a measurement that she took over seven and a half years ago. That fact, of itself, tends to cast some considerable doubt over it. Thirdly, the plaintiffs did not seek a finding that the height of the balcony wall was in line with Mrs Houghton’s evidence; rather, the plaintiffs submitted that the evidence of Mr Maher should be accepted and the finding made that the balcony wall was, as at the date of the accident, 840 mm.
The defendants submitted that I should accept the measurements taken by Dr Gibson because he is an expert; he kept records of his measurements; and that Mr Maher, despite the defendant issuing a subpoena to him for his notes (which Mr Maher accepts would have contained records of the measurements that he obtained), they were not produced to the Court but to the solicitors for the plaintiffs and they were never made available, or produced to the Court, before they were destroyed in March 2022 (by storm damage).
The plaintiffs argued that I should not accept Dr Gibson’s measurements because they were not taken until March 2020 – at which time “renovation work had been undertaken on the balcony”. I do not accept this submission because the unchallenged evidence of Mr and Mrs Potts was that the modification to the balcony wall only extended to the “placement of a small metal fabricated balustrade on top of the brick balcony wall”. I find that to be the only modification that was made involving the balcony wall.
The plaintiffs also argued that Dr Gibson’s measurements should not be accepted because “the manner in which they were taken is undisclosed” and “the opacity surrounding the manner in which they were taken” should result in Mr Maher’s evidence being accepted, over Dr Gibson’s. I do not accept this submission. In my view, Dr Gibson explained what he did in his statement: he measured the balustrade and recorded those measurements which are set out in par 7 of his statement dated 11 October 2022.
I accept the evidence of Dr Gibson on this issue, and find the dimensions of the balcony wall, and what he described as the ‘small lip’, to be as he measured them, for these reasons: first, he is an expert with qualifications in mechanical engineering and biomedical engineering – and I regard it being inherently more likely that a person with those qualifications and expertise would accurately measure the dimensions of the balcony wall; secondly, he attended the premises to specifically investigate the accident and report on it in light of the fact that proceedings for damages had been commenced – which I accept adds to the likelihood that he would have attended upon the measurements with some degree of care; thirdly, he repeated his measurements to ensure their accuracy; and, fourthly, there is at least a doubt in my mind about the manner in which Mr Maher performed his measurements, and the accuracy of them – for example in relation to “the edging/shelf at the base of the wall/balustrade to be very close to 76 mm high and 50 mm wide” (underlining added), which is, in my view, a surprising way of expressing a measurement of a fixed object that can readily be precisely obtained and suggests a degree of approximation in the manner in which he was measuring the dimensions of the balcony wall. That there was a degree of approximation involved by Mr Maher, may well explain the differences between the measurements of the ‘lip’ made by Dr Gibson and Mr Maher.

The events leading up to the fall

In this section, I deal with, and make findings about, the evidence relating to the events leading up to the incident: the incident itself is dealt with separately in the following section: see [144]ff, below.
Before I do so, I consider it is appropriate to say something about the estimations of time given by some of the witnesses in and around (and about) the critical events.
In my view, all estimates given by the witnesses were simply that: estimates, and no more. To rely upon them as involving a degree of precision is unrealistic and does not reflect the fact that most of those involved had been consuming alcohol, the occasion was social and no particular regard was being had by any individual to the time. Thus, when it came to providing time estimates they inevitably involved an element of reconstruction in light of these matters. None of my findings on any contested issue of fact are anchored in, or based upon, any estimate of time – be it the time something might have occurred, or the time that elapsed between particular events, and matters of that kind – and to the extent that any party relied upon evidence of that kind to support a finding, I do not accept the submission(s) for those reasons.
To recap, slightly. There is, as I have earlier found, no issue about who was on the balcony at the time of the fall (Mr Houghton and Bethany Long), and who was not (Mrs Houghton and Chris Long). Karen Long had, at around 6 pm, left the premises as she was required to babysit the children of her neighbours at 7pm. To the extent that the plaintiffs argued (it was not entirely clear), during closing submissions, that she left at or close to 7 pm, I do not accept the submission – essentially for the reasons expressed above. My finding is that Karen Long left the premises closer to 6 pm than 7 pm. In my view, bearing in mind the accident occurred in the minutes prior to 7:59 pm, nothing turns on the precise time at which Karen Long left the premises: at a minimum she left well over one hour prior to the fall.
In relation to Mrs Houghton and Chris Long, the evidence varied as to what precisely they were doing at the time of the fall – but there is no doubt, and I find, that they were not present on the balcony in the moments leading up to the fall, but were inside the premises.
As I later explain, I find they were in the kitchen at the time of the fall: see [105], below. Following on from what I have said about “time”, and the estimates of time given during evidence, above, I do not think the evidence permits a precise finding about how long it was between the time Chris Long went inside to the kitchen and the accident. In my view, having regard to the surrounding evidence, it was likely to be brief, and most likely less than a minute.
There were essentially three strands of evidence that were emphasised during submissions that went to explain – and give important context to – the evidence of Bethany Long about how the fall occurred. They were:

there was discussion involving Mr Houghton, Chris Long and Bethany Long, whilst they were on the balcony, about Mr Houghton’s telescope, and what could be seen when looking through it (see: ‘The discussion about the telescope’, at [77]ff, below);

there was “jovial” discussion, involving Mr Houghton, Chris Long and Bethany Long, with Mr Houghton jokingly stating words about “chucking” Bethany Long over the balcony (see: ‘The discussion about “chucking” Bethany Long over the balcony wall’, at [82]ff, below); and,

that although Chris Long left the balcony area, a short period of time prior to the fall occurring, there was a further interaction with him whilst he was in the process of leaving (see: ‘A final comment by Chris Long’ at [92]ff, below).

These matters thus gave important context to the events which immediately followed: on the version given by Bethany Long, Mr Houghton held her over the edge of the balcony, and in doing this they fell to the carport roof below.
I will next address each of the strands of evidence identified in [74], above. In doing so, it must be recognised that because the issues are intertwined there is necessarily a degree of overlap in the analysis that follows.

The discussion about the telescope

Bethany Long’s evidence, in her evidentiary statement dated 28 June 2020, was that Mrs Houghton was inside “packing up and washing” and that for a period of time, present on the balcony were herself, Mr Houghton and Chris Long. During this time the three of them were discussing Mr Houghton’s telescope, and the fact that they could see “ladies on the boats”. Bethany Long gave a similar version to the plaintiffs’ investigator, Mr Maher, in April 2015, about having such a discussion: Exhibit 3, par 7. She gave that version when cross-examined:

He - before my dad left from the balcony, we were joking about the telescope, then, my dad left and Darren - we - me and Darren were joking about the telescope and the question - the statement, as I should say - was intended towards my dad, as he was joking with us previously about the telescope and Jo - throwing me off the balcony.

The version of Chris Long, contained in his evidentiary statement dated 28 June 2020, was that himself, Mr Houghton and Bethany Long were on the balcony “having a bit of a joke”, and there was some discussion about the telescope that Mr Houghton had received and that “he could see into a lady’s house across the harbour. The exchange between myself and [Mr Houghton] was not inappropriate given Bethany was present, but it was boyish”.
Mr Houghton’s evidence, contained in his evidentiary statement, was that quite “early Bethany may have been looking through my telescope”, but nothing else was said by Mr Houghton about what might have been discussed. Mr Houghton said that he was “alone on the balcony”, and that Bethany Long “came from inside”, and she went to the balcony wall.
I do not accept Mr Houghton’s evidence that Bethany Long “came from inside” in the way he described, but prefer (and accept) the evidence of Bethany Long and Chris Long. My finding is that Bethany Long was, and in the period leading up to the accident had always been, on the balcony and did not come from inside. I make that finding not only because I accept the evidence of Bethany Long and Chris Long, but because their evidence, and the finding that I have made, is consistent with other evidence, including: (a) Mrs Houghton’s evidence that she gave in her evidentiary statement – which was to the effect that, once she left the balcony with Chris Long they “left Darren and Bethany together on the [balcony]”; and (b) with what Mrs Houghton told police which was to similar effect.
I am also satisfied (and find) that, during the afternoon, Mr Houghton, Chris Long and Bethany Long were looking through Mr Houghton’s telescope and discussing, and joking about, what they could see (imaginary or otherwise). I further find that they were discussing and joking about these matters in the short period of time leading up to the accident. The “short” period of time that I refer to is most likely to be measured in minutes, but it extended to (and included) the moment that Chris Long went inside to the kitchen. (I make some further, related, findings about the “discussion” and Chris Long’s moving from the balcony to go to the kitchen, in what follows).

The discussion about “chucking” Bethany Long over the balcony

Following on from using the telescope, and discussing (and joking about) what they could see, Bethany Long said (in her evidentiary statement) that at that point she recalled Mr Houghton calling out to Chris Long “in a joking manner”:

“Let’s chuck Bethany over the balcony.”
I recall Dad calling back also in a joking manner:
“Yeah go ahead and throw her off.” (Italics in original).

After this conversation, Bethany Long’s evidence was that she “continued joking” with Mr Houghton after Chris Long had gone inside: and it was in the course of this exchange that the events occurred.
Bethany Long gave a similar version – about what Mr Houghton said – when interviewed by the investigator Mr Maher in April 2015 (Exhibit 3, par 8):

Darren stood up from the chair, picked me up and called out, “Let’s chuck Bethany over the balcony”. He stood up from his chair and leaned over and held me like a baby and turned around and walked over to the balcony holding me like a baby over the balcony – his arms and me. Darren lost his balance and fell face first with me.

The plaintiffs cross-examined Bethany Long over discrete parts of a statement that she made in 2017, and tendered four paragraphs only – pars 14, 15, 21 and 22: Exhibit D. It is convenient to set that evidence out in full, albeit that it touches upon other issues of fact as well as the present one:

14. Darren’s wife, Jo, then went into the kitchen to put away some plates or clean up or something. Dad left a little bit after Jo to go inside, I think to help her clean up but I was not sure where Jo was at the time.
15. Darren jokingly said to Dad words to the effect “Let’s chuck Bethany over the balcony”. I cannot recall if Dad said anything to Darren.
21. Dad and Jo reached down to help pull me up to the balcony and Jo called the Ambulance.
22. When Jo was on the phone to the Ambulance, Dad asked me “What happened?” I cannot recall exactly what I said but I told him that Darren had held me over the wall and then we fell. (Italics in original).

The cross examination was directed to establishing that her recollection of matters was imperfect. For present purposes, it need only be noted that the statement that she attributes to Mr Houghton was confirmed. I accept her evidence, which she has consistently given since when she was interviewed first by the plaintiffs’ insurance investigator, Mr Maher, in April 2015.
Bethany Long was also cross-examined to the effect that she did not make any reference to the police about Mr Houghton saying: “Let’s chuck Bethany over the balcony”. Her response, which impresses as entirely plausible and which I accept, is that she did not do so because she was asked by the police about “what happened with the fall, not the conversation prior” and because the conversation with the police was “about Darren picking me up and holding me over the balcony”. (I have later addressed and explained the limited nature of the enquiries made by the police (and the reason for it), and that reasoning applies equally here: see [134], below – in short, there was likely only confined questioning by police).
Chris Long’s evidence, contained in his evidentiary statement, was that “just before the accident”, he “got up and went inside to get another bottle of wine”. Before he did so, the following occurred:

Before I went inside, Bethany was being cheeky to Darren and they were exchanging banter. As I was going inside, Darren said to me words to the effect of:
“I should chuck her over the balcony”
This was said as I was on my way inside to get the next bottle of wine. I said jovially back to him words to the effect of:
“Yeah why don’t you?” (Italics in original).

As I have set out, above, Mr Houghton, in his evidentiary statement, gives a different version: in effect that version is that none of these discussions took place, and he denied that they did. I do not accept that evidence.
In my view, the probabilities favour (and I find) that Mr Houghton did say: “Let’s chuck Bethany over the balcony”, and that this statement was directed to Chris Long. I am satisfied that this is so because: (a) that was the evidence of Bethany Long, and I accept her evidence which she has given consistently since she was first interviewed following the accident in April 2015 by Mr Maher; (b) she gave, as I have said, an entirely plausible explanation for why she did not tell the police on the evening about what Mr Houghton said; (c) I accept the evidence of Chris Long; and (d) the finding is consistent with the surrounding circumstances – viz., how the “events” leading up to the incident unfolded, and how I found the accident, in fact, occurred.
In relation to Chris Long’s evidence, although, as I have later found, his recollection of events had dimmed somewhat, I accept his evidentiary statement set out his best recollections of the events of that day, and his evidence which generally accords with the other evidence that I have accepted and findings that I have made.

A final comment by Chris Long

The third “strand” of evidence relevant to how the fall occurred raised two issues, being:

whether Chris Long was present on the balcony area in the short period of time leading up to the accident; and,

relatedly, whether he participated, or even heard, the conversation that I have found occurred that included Mr Houghton saying: “Let’s chuck Bethany over the balcony”.

I will therefore give consideration to these issues separately.
In essence, the position argued by the plaintiffs is that Chris Long was not present at all on the balcony in the time prior to the fall and that he had, with Mrs Houghton, been in another part of the house tending to Zach and Martha. That was, in effect, the evidence of Mrs Houghton: see her evidentiary statement at [13]-[17]. Mr Houghton’s evidence was to similar effect – “Jo and Chris had gone out the back where Martha and Zach were playing …”. It followed, so the plaintiffs argued, that if Chris Long was not on the balcony then, at a minimum, it negated the possibility that he was a participant in any conversation in the short period of time leading up to the accident. As a corollary, this then undercut – and caused a doubt about – any suggestion (or evidence) to the contrary. I do not accept the evidence from Mr and Mrs Houghton, nor the submissions.

Summary of findings on this ‘topic’

By way of summary, my findings in connection with the issues presented are: (a) Chris Long was present on the balcony in the short period of time prior to the accident; (b) Chris Long then assisted Mrs Houghton in cleaning up and went into the kitchen area for that purpose, and to get another bottle of wine; (c) as he walked from the balcony towards the kitchen, Chris Long heard Mr Houghton say: “Let’s chuck Bethany over the balcony”; and (d) after hearing Mr Houghton say this, again as he walked from the balcony towards the kitchen, Chris Long responded, saying: “yeah why don’t you?”.
My reasons for making these findings follow.
I will deal first with where Chris Long was in the short period of time leading up to the fall because resolution of that issue of fact will go some way towards disposing of the issue – viz., if Chris Long was in another location of the premises with Mrs Houghton, tending to Zach and Martha, then it would render less likely Chris Long overhearing, or participating, in the conversation that included Mr Houghton saying: “Let’s chuck Bethany over the balcony”.

Where was Chris Long in the moments leading up to the fall?

The first question, therefore, is: where was Chris Long in the short period of time leading up to the fall?
The evidence of Bethany Long, in her evidentiary statement dated 28 June 2020, was that Chris Long had “got up and went to go inside”, and that Mrs Houghton was already inside. That is also what Bethany Long essentially said in the version she gave to the investigator in April 2015: it is not identical but sufficiently like, in my view: “Daddy and Jo went inside to clean up”. And, finally, in the select parts of Bethany Long’s 2017 statement that the plaintiffs tendered, Bethany Long said that Chris Long went inside “to help” Mrs Houghton clean up and, importantly, Mr Houghton said to Chris Long the words that I found that he did – viz., “Let’s chuck Bethany over the balcony”.
Bethany Long was cross-examined on this particular issue, and she gave the basis for believing that Chris Long went into the kitchen because “he brought dishes out to the kitchen”; she observed him take “maybe a beer”; and “he went from the balcony into the kitchen area, which is directly from the balcony”.
Thus, put simply, Bethany Long has given a consistent version of where Chris Long was – viz., he was present on the balcony in the short period of time leading up to the fall – and what he went to do as the reason for him leaving.
I add here the following. I do not regard the difference between Bethany Long “thinking” that Chris Long went inside to help clean up, whereas Chris Long’s evidence that he intended to go and fetch another bottle of wine as significant or inconsistent: there is no evidence that Chris Long expressed his intent to collect another bottle of wine, as opposed to simply forming that intent and keeping it to himself – and I do not find that he announced or said what he was intending to do in relation to getting more alcohol; my finding is he did not.
I have set out Chris Long’s evidence, as contained in his evidentiary statement, on this issue: see [88], above. In short, his evidence was that he was present when Mr Houghton suggested that he should “chuck” Bethany over the balcony and indeed says that he, playfully and jovially, suggested that he do so.
According to Chris Long, after going inside, he heard Bethany Long call out “Dad!” – and he went outside onto the balcony and saw Bethany Long and Mr Houghton on what he believed to be the roof of the unit below. I am satisfied that this occurred: there was no issue raised about these facts, and they are in line with what Bethany Long described in her evidentiary statement.
In my view, Chris Long was on the balcony in the short period of time leading up to the fall, and had gone inside to the kitchen, most likely to clean up and to collect another bottle of wine for consumption, and I so find. I have made that finding for the following reasons.
First, the starting point must be the contemporaneous records (Fox v Percy at [31]), limited though they are. In this respect, the COPS report contains a version based upon discussions that were had by the police (Senior Constable Townsend) with Bethany Long, Chris Long and Mrs Houghton. As to the movements of Chris Long in the short period of time leading up to the fall, the following is recorded in the COPS report:

About 8 pm Sunday, 28 December 2014 [Darren Houghton] was having drinks with family friends at LOC. His wife… and friend (NOK2 [defined in the COPS report as Christopher Long]) went inside for a moment as they had started clearing the table. (Underlining added)

In my view this is significant contemporaneous evidence, which I accept, recording the likely movements of Chris Long immediately prior to the accident.
Secondly, there was also evidence from Senior Constable Townsend, and he gave similar evidence (to what was recorded in the COPS report) in his evidentiary statement dated 26 September 2020. On this issue his evidence, in relation to Bethany Long, relevantly was:

I took part in the conversation with Bethany in which she also disclosed that her dad (Christopher) and Joanne were clearing the table and had gone inside…

In relation to Mrs Houghton, his evidence relevantly was that when he attended the premises he “first spoke to Mrs Houghton”, and she said: “… Chris and I went inside as we were cleaning the table”. And, in relation to Chris Long, Senior Constable Townsend’s evidence was that he spoke to him “briefly who provided me with the same information as Mrs Houghton”.
I accept this evidence. It should be noted that there was no cross examination of Senior Constable Townsend upon any of it.
Thirdly, I accept the evidence of Bethany Long and Chris Long on this issue – versions that are consistent with (a) what is recorded in the COPS report, and (b) what each told Senior Constable Townsend when he spoke to them on the evening of the accident. In particular it is supportive (as is the other evidence to which reference has been, or shortly will be, made) of their evidence that Chris Long was not, as Mr and Mrs Houghton suggested, tending to children in another of the premises, but present on the balcony broadly in the way that he described in his (and Bethany Long described in her) evidentiary statement.
Fourthly, Bethany Long’s evidence is consistent with Tracy Scott’s evidence of what Bethany Long said to her when she first arrived and prior to Bethany Long speaking with police: “Daddy went into the kitchen…”. This evidence from Tracy Scott, which I accept, was not challenged during cross examination.
Fifthly, there is other evidence, which I accept, which supports the finding that I have made about the location of Chris Long. Michael Maher, in his evidentiary statement dated 12 October 2022, said that on 16 April 2015 he interviewed Chris Long and Bethany Long in relation to the events surrounding Mr Houghton’s fall. In relation to Chris Long, Mr Maher asked him a series of questions, and he was provided answers which he converted into a document he described as a ‘statement’. The plaintiffs, although in possession of that document, did not produce it or seek to tender it. Rather, they sought to prove select parts of it through Mr Maher’s statement. (Mr Long, it should be added, was cross-examined not upon any draft statement but based upon propositions of what he is alleged to have told Mr Maher when interviewed). Mr Maher’s statement recorded that pars 6-8 of the ‘statement’ of Chris Long were (relevantly) as follows:

Paragraph 6 of the ‘Statement’: We had been on the balcony facing the Harbour for much of the time and after Karen left Jo and I started to clean up, taking the remnants of the food, plates and whatever was left of the wine and empty bottles to the kitchen. (Underlining added).
Paragraph 7 of the ‘Statement’: As far as I recall, that Zac and Martha were playing together in probably her room, Jo and I were in the kitchen area and Darren and Bethany were still on the balcony, but I could not see them from where I was and did not take too much notice of what noises were coming from them, other than it sounded like they were having fun with laughter and giggles.
Paragraph 8 of the ‘Statement’: I’m not too sure if I heard a bang or Bethany scream or call out, but I rushed out to the balcony and realised they were not there and immediately looked over the balcony and saw Bethany standing up next to Darren…

This evidence (notably what is contained in pars 6 and 7) is, as I have said, supportive of the version given by Chris Long. In particular it supports findings, which I have made, that Chris Long was not in another part of the premises tending to Zach and Martha or walking back from having done so (as Mr and Mrs Houghton said in their evidence), but was assisting in removing the food and plates from the table on the balcony area and taking it to the kitchen ie “cleaning up”; that Mrs Houghton and Chris Long were in the kitchen area at the time that the fall occurred; and that although when in the kitchen area he could not see Mr Houghton and Bethany Long on the balcony, he could hear them.
As to the above evidence, it should be noted that Chris Long was affirmatively cross-examined on what he told Mr Maher on this issue – and he accepted that if this is what he had told Mr Maher, that would have been his recollection at that time and, furthermore, assisting in cleaning up in the moments prior to the events in question was “consistent” with his “normal practice” to help with the cleaning up and “that sort of thing”.
I note that, having cross-examined to this effect, Chris Long was later cross-examined to suggest that although he accepted that he “could’ve been inside helping Jo clean up”, he did not have “an independent memory of that”. I accept that, through the passage of time, Chris Long’s recollection of this matter of detail had faded somewhat, but I am satisfied that what he said in his evidentiary statement is correct: it is, as I have pointed out, amply supported by the evidence to which reference has been made, including what he told the police on the evening of the accident, and is consistent with what he told Mr Maher when interviewed by him in April 2015.

Did Chris Long respond to Mr Houghton?

Having made the finding about where Chris Long was, the second part of this issue is whether or not Chris Long responded to the comment that I found Mr Houghton made – viz., “Let’s chuck Bethany over the balcony”.
Specifically, the question is: did Chris Long respond to what Mr Houghton said by saying (playfully) words to the effect: “yeah why don’t you?”.
I will start with the evidence in the plaintiffs’ case.
Mrs Houghton was not, of course, in the area – so her evidence did not touch upon this issue. In relation to Mr Houghton, his evidence was largely silent about the events leading up to the fall and, when cross-examined, did not accept that there was any conversation at all involving “chucking” Bethany Long over the balcony, or anything remotely like that.
I turn now to address the evidence in the defendants’ case.
Bethany Long’s evidence, as contained in her evidentiary statement, was that her father responded to what Mr Houghton said – by more or less agreeing, jokingly, with Mr Houghton’s suggestion that he throw Bethany Long off the balcony: see [82], above. She confirmed that evidence (about what Chris Long had said, responding to the statement made by Mr Houghton) when cross-examined.
In the version that she provided to Mr Maher, in April 2015, although setting out key parts of the version of events that I have found occurred, she did not refer to Chris Long responding to what I have found Mr Houghton said. Bethany Long was cross-examined about this, and it was put to her that she had no memory, as at April 2015, of Chris Long responding to what Mr Houghton said, but she rejected the proposition stating that she did “remember it happening”.
Further, in those parts of Bethany Long’s 2017 statement that the plaintiffs tendered, Bethany Long said: “[15]. Darren jokingly said to Dad words to the effect “Let’s chuck Bethany over the balcony”. I cannot recall if Dad said anything to Darren”.
Chris Long’s evidence, as contained in his evidentiary statement, I have earlier set out: see [88], above. Simply put, his evidence was that not only did Mr Houghton say the words I have found that he did, but that he responded to them. The select parts of what Chris Long told Mr Maher, in April 2015, is set out in [113], above, but they do not concern this particular issue. (To be clear, the plaintiffs did not seek to tender the complete version of that draft statement which was provided to the solicitors for the plaintiffs, as noted in Exhibit 8, but only these three paragraphs which were put into a statement of Mr Maher dated 12 October 2022).
It is appropriate, at this point, to say something about Chris Long’s evidence. In my view, although Mr Long’s recollection about the events on the evening had understandably dimmed somewhat, I accept he was genuinely attempting to give evidence about what he could recall. The plaintiffs argued that I should approach his evidence on the basis that, in effect, he had no recollection of anything. I do not accept that submission. In my view the challenge to his evidence was in exceedingly general terms – indeed the defendants submitted that there had not been a direct and fair challenge to his evidence. In my view, Chris Long accepted that, outside of what was contained within his evidentiary statement, he did not have any independent memory of the events. That is the way in which I consider the evidence was left following his cross examination and, to be clear, I do not consider that, having listened carefully to the cross examination and his responses, that it was anything other than that. I accept the version he gave in his evidentiary statement on this issue, and the other issues such as where he was shortly prior to, and in the moments leading up to, the fall, and what was said in and around these times.

I should emphasise, however, that Chris Long’s evidence, in context, was narrow. His evidence was relevant to: (a) the events that occurred on the balcony (I have found he was on the balcony); (b) whether he heard, and said anything in response to, the comment made by Mr Houghton about “chucking” Bethany Long off the balcony (I have found that he did hear it and did respond to it); and (c) what he recalls, if anything, Bethany Long told him whilst they were travelling to hospital in the ambulance (I have accepted that Bethany Long told him that, in effect, that Mr Houghton held her over the balcony wall).
The plaintiffs submitted – in relation to Bethany Long’s evidence that Chris Long responded by saying: “yeah why don’t you?” – that the Court should not accept Bethany Long’s evidence because: (a) she did not tell the police of this matter when they attended; and (b) she did not give this version when she was interviewed by Mr Maher in April 2015; and (c) she had no recollection of this when she made the statement in 2017.
I am satisfied, and find, that Chris Long responded to the statement that I found was made by Mr Houghton, to the effect: “yeah why don’t you?”. My reasons for that finding are as follows: (a) first, I consider a response to Mr Houghton’s statement to be likely having regard to the jovial and joking way in which these events played out and involved those on the balcony at that time; (b) secondly, the fact that what I found Mr Houghton said was directed to essentially Chris Long, makes it more likely that Chris Long responded to it; (c) I accept the evidence of Bethany Long; (d) I accept the evidence of Chris Long; and (e) I do not accept the evidence of Mr Houghton.
I expand upon these matters in what follows.
First, the likelihood of a response being provided by Chris Long is enhanced by the earlier findings that I have made – viz., I have found that Chris Long was present during the start of the events (the joking around) and was present when Mr Houghton made the statement that I find he did. Those matters favour a response being made by Chris Long.
Secondly, I am satisfied, and find, that the statement made by Mr Houghton was essentially directed to Chris Long. I consider a response to Mr Houghton’s statement by Chris Long to be likely bearing in mind it was directed to Chris Long. Further, even if what was said by Mr Houghton was said (or directed) to Bethany Long and Chris Long, then, in my view, a response is still likely. It fits with the “joking around”.
Thirdly, I accept the evidence of Bethany Long – unequivocally – and that evidence supports the response that was given by Chris Long. To be clear, I do not regard any omission of this detail in the draft statement provided to Mr Maher to be significant, or to detract from this. The statement was never reviewed by Bethany Long, nor adopted by her and, importantly, in my view, common experience suggests that (particularly when dealing with a person of her then age) the content of the statement would very much depend upon the nature and degree of questioning undertaken by the investigator. In this respect, although Mr Maher was called to give evidence, it was not suggested by him (nor was any attempt made to elicit this evidence in chief), by way of illustration, that he specifically asked this question of Bethany Long and the fact that it does not appear in the “draft” does not mean that she had no recollection of it or had then said that Chris Long had not responded. Rather, in my view, the more rational explanation for this, is that Mr Maher simply did not ask the question of Bethany Long at the time and hence the matter was not pursued by her.
The plaintiffs next argued that Bethany Long’s evidence on this topic should not be accepted because – shortly stated – she omitted to tell these things to the police when interviewed immediately after the accident. The plaintiffs submitted that the failure to “report” these matters to the police, when they spoke to her immediately after the accident, was suggestive of the fact that (a) the statement by Mr Houghton that I found was said, was not and (b) the version she gave to them about what did occur, did not occur and was most likely the product of embellishment by Bethany Long.
I do not accept these submissions.
I have previously made a finding that I accept Bethany Long’s evidence, and I do not accept there has been any embellishment of any kind.
The premise of each submission was that the event itself was a serious matter (plainly it was) and involved the potential of criminal conduct; therefore, so it was argued, inevitably the police were investigating the interactions of the various people with a keen eye for detail – which undoubtedly extended to probing Bethany Long about such a matter or matters. In my view this submission is unrealistic, particularly in light of what occurred and, in any event, is contrary to the evidence of a Senior Constable Townsend, and the way the plaintiffs cross-examined him.
In my view it is quite likely (and my finding is) that there was not any detailed questioning of Bethany Long by Senior Constable Townsend, or the police more generally. That is because the police considered that the “event” was simply a tragic accident: the version that was taken by Senior Constable Townsend was that Mr Houghton picked up Bethany Long “in his arms and as a friendly joke went to the end of the balcony pretending to hold her over the edge”, and that Mr Houghton had lost his balance causing them to tumble “over the balcony edge”. Senior Constable Townsend then expressed the following in the report he prepared: “This appears to be a tragic accident and Police are not investigating any person for any offence in relation to this matter”.
In those circumstances, it is entirely explicable, in my view, for detail of this kind not to be raised. Indeed, there cannot seriously be any doubt about this, because that was the way in which the plaintiffs cross-examined Senior Constable Townsend. That is, Senior Constable Townsend was cross-examined on the basis that he had made a decision that the accident was not going to require ongoing police investigation which explained why Mr Houghton had not been interviewed. Further, during the course of that cross examination, Senior Constable Townsend said that he formed the view on the evening of the accident, that “it didn’t appear to be a criminal matter”. Thus, the plaintiffs’ submission is inconsistent with not only the evidence, but the way in which they cross-examined Senior Constable Townsend.
There can be no suggestion, in my view, that Senior Constable Townsend was anything other than an entirely independent witness, and I formed a favourable impression of him. His evidence was not materially challenged by the plaintiffs. (I note in this respect that he had participated in an interview with the investigator that the plaintiffs’ solicitors had appointed – thereby confirming his independence: it should be added that the plaintiffs did not submit that I should not accept Senior Constable Townsend’s evidence).
Finally, it is true that the paragraphs of the 2017 statement, that Bethany Long made, record that she could not remember whether Chris Long responded to the statement that I have found that Mr Houghton made. Bethany Long was cross-examined about this, and she said that she did not recall providing the statement and, in relation to the “response” made by Chris Long, she maintained that there was a response by him to the effect. I accept Bethany Long’s evidence on this issue (and I have accepted her evidence for reasons explained elsewhere) and, to be clear, I do not consider that what was said in 2017 demands a contrary finding. I regard it is somewhat inevitable that there will be variations between versions given; the issue is, in context, not of decisive significance – it is a strand of evidence; and, overall, I consider this aspect of the evidence is consistent with what I have found occurred. (I add: even without a positive finding on this issue, it would not alter the other findings that I have made).
Fourthly, I accept the evidence of Chris Long. I have earlier addressed the challenges that were made to his evidence by the plaintiffs – and rejected them.
Finally, I do not accept the evidence of Mr Houghton. My acceptance of the other evidence explains why I do not accept his evidence. In relation to his version of events, it has been demonstrated to be, at least one critical respect, contrary to contemporaneous, and objective, evidence – being the evidence relating to what Chris Long was doing immediately prior to the fall. That finding, based on that, and other, evidence undercuts Mr Houghton’s evidence in my view.

How the fall occurred

This issue is, as I have said, the critical issue of fact in the case.
There are competing versions: one by Mr Houghton, the other by Bethany Long. Put simply, Mr Houghton says that the fall occurred as a consequence of a mishap following an attempt by Mr Houghton to try and lift Bethany Long away from the balcony wall. On the other hand, Bethany Long says that the fall occurred because Mr Houghton picked her up and jokingly held her out over the balcony wall “like a baby”, but he then overbalanced causing them both to fall onto the carport roof below.
In my view, for the reasons which are set out in what follows, I consider the explanation for the accident is that Mr Houghton held Bethany Long over the balcony wall, and he lost his balance in the process – causing him, and Bethany Long, to fall onto the carport roof below. In short, I accept the version given by Bethany Long and I find this is how the accident occurred.
By way of summary, and as explained in more detail in the reasons that follow, I accept her version because: (a) it was provided contemporaneously, and thereafter consistently; (b) there are no reasons – at least none that I accept – which might tend to suggest that her recollection is erroneous; (c) I regard the evidence to be supported by the findings that I have made in relation to the events leading up to the fall (see [68]ff, above); (d) I regard the evidence, and the competing version given by Mr Houghton, as quite unlikely and I consider his evidence on this topic to be unreliable; and (e) I consider that Mr Houghton was affected to some degree, at least moderately, by alcohol that he had consumed that afternoon and that provides some explanation for the way he behaved. (I deal with intoxication later: see [191], below. That topic is also addressed in the context of the defence under s 50 of the CLA: see [257], below).
I will explain my reasons for the finding that I have made in this order. (The first three are dealt with in my consideration of the version of Bethany Long; the fourth and fifth are dealt with in my consideration of the version of Mr Houghton).

The version of Bethany Long

The version of Bethany Long provides a different, and inconsistent, explanation of how Mr Houghton came to fall over the balcony wall (summarised in [145], above, but set out and dealt with in [179]ff, below).
Bethany Long’s version of how the accident occurred is set out in pars 13-15 of her evidentiary statement dated 28 June 2020. There she said:

[13] I continued joking with Darren after Dad had gone inside. Darren then picked me up like a baby in a cradle and jokingly held me out over the balcony wall. My head was near his right shoulder as he held me with his arms cradling my shoulders/neck and legs.
[14] Darren was facing the harbour and I recall I looked at him as he held me over the balcony. Darren then said “ooh ooh!”. I realised that something was wrong. We then both fell onto the roof below the balcony wall.
[15] The next thing I recall was standing up with Darren lying beside me on the roof below the balcony.

Bethany Long also gave evidence, in her evidentiary statement, that she provided this version following the accident to the police who attended. Her evidence, relating to the fact that she gave her version to police and what in fact she told the police when they attended, was as follows:

[20] When I was on the couch I spoke to the Police Officers. There was more than one Police Officer and one was female. Tracy [Scott] was with me when I spoke to the Police. I told them what had happened. I told them that Darren had held me over the balcony as a joke and had fallen while holding me.

Senior Constable Townsend spoke with Bethany Long about how the accident occurred when he arrived at the premises. His evidence was that Bethany Long was sitting on the lounge, being attended to by ambulance officers. He took part in a conversation with Bethany Long, which included the following:

[7]. …I took part in the conversation with Bethany in which she also disclosed that her dad (Christopher) and Joanne were clearing the table and had gone inside. She informed us that Darren had picked her [up] in a friendly/playing gesture and carried her towards the balcony edge as a joke. The next thing she knew she was over the edge and had fallen onto the carport…
[8]. My understanding from what Bethany described was that Mr Houghton was holding her in his arms in a baby like fashion just before they fell.

When called to give evidence, Senior Constable Townsend expanded upon this evidence. He said that through her words or actions, or possibly a combination of them, he understood the manner in which Mr Houghton held Bethany Long to be “like you would a baby, with two outstretched arms”, which he demonstrated as both arms outstretched, with his palms facing up, with the head up one end and the feet at the other. Senior Constable Townsend was not cross-examined about any of this evidence to which reference has been made in this and the preceding paragraph.
The COPS report prepared by Senior Constable Townsend records:

[Darren Houghton] picked [Bethany Long] up in his arms and as a friendly joke went to the end of the balcony pretending to hold her over the edge.
It appears [Darren Houghton] has for some reason lost balance with [Bethany Long] in his arms and both have tumbled over the balcony edge…

It is apparent the evidence of Senior Constable Townsend does not say – expressly – that the statement made to him was that Mr Houghton held Bethany Long over the balcony wall edge. He says: pretending. Nevertheless, that is the clear import of it, in my view. In any event, to the extent there is any difference between the version – I am unpersuaded there is – I accept the version given by Bethany Long. I consider it important, in particular, to note the following in relation to what Senior Constable Townsend said: he noted the sequence as Chris Long going inside; that Mr Houghton had “picked her up…and carried her towards the balcony edge as a joke”; and that Mr Houghton was holding Bethany Long in his arms in a “baby like fashion just before they fell”, which he explained to mean with two outstretched arms, palms facing upwards with a head up one end and the feet at the other. This evidence is significantly corroborative of what Bethany Long has said.
Bethany Long also gave evidence, in her evidentiary statement, that she spoke with Tracy Scott after she had arrived and “told her what had happened” and, as I have noted above, Tracy Scott was present when Bethany Long spoke with the police. Neither Bethany Long nor Tracy Scott’s evidence on this issue was challenged.
Tracy Scott’s evidence, in relation to these two issues, as contained in her evidentiary statement, was as follows. In relation to Bethany Long’s description of what had occurred, Tracy Scott’s evidence was that Bethany Long said words to the following effect:

[TS] Are you okay? Are you upset about Darren?
[BL] I went over the balcony too. Daddy went into the kitchen and Darren was messing around and tickling me. Darren then picked me up like a baby and held me over the balcony.
He was messing around going “oh oh oh” and then he went “ohhhhhh”.
I knew then that he knew we were going to go over the balcony. We then fell over the balcony. I landed and stood straight up.

Tracy Scott then said that Bethany Long “held her hands out in front of her to demonstrate how Darren had been holding her like a baby”. Tracy Scott’s evidence on this issue was not challenged during cross examination.
Tracy Scott was also present when the police asked to speak to Bethany Long, and was present when they did. Her evidence was that following the request made by the police to speak to Bethany Long, Tracy Scott told Bethany Long to “absolutely tell the Police the truth…”. Tracy Scott was, as I said, present when Bethany Long spoke to police, and her evidence was that Bethany Long “told the Police exactly what she had told me”. It should also be noted that this part of her evidence on this issue was not challenged during cross examination. I found Tracy Scott to be a most impressive witness, and I accept her evidence.
It is also convenient, at this point, to address the evidence of Tracy Scott. There was no substantive cross examination of her at all. In particular it was not suggested to her, when cross-examined, that her evidence was wrong in any respect and there was no challenge to the key parts of the evidence by cross examination. Rather, the cross examination established that her statement contained the conversations which she recalls occurred between her and Bethany Long and the conversations that occurred between Bethany Long and the police. She was also, as I have earlier found, friends with both families and it was not suggested, by way of example, in any way that her evidence was, because of some connection to the Long family, somehow slanted towards them rather than the truth. I accept her evidence entirely.
I pause here in the setting out of the evidence to note the following. There is other evidence about what Bethany Long told police on the evening of the accident: Mrs Houghton was present when Bethany Long gave her version to police – a version that involved Bethany Long stating (in short) that Mr Houghton had held her like a baby in his arms out “over the edge of the balcony” wall. Mrs Houghton accepted that she heard Bethany Long giving that version to police. I accept, and find, that this is what Bethany Long said and, further, that Mrs Houghton heard Bethany Long tell police this on the evening of the accident when spoken to by them.
Further, Mrs Houghton also agreed that she received Bethany Long’s ‘statement’ that resulted from the interview that Bethany Long had with Mr Maher, and she accepted that Bethany Long had told Mr Maher that the accident occurred exactly the same way that she told the police.
Bethany Long, as I have earlier noted, was taken to hospital by ambulance. Chris Long accompanied her. Her evidence was that, whilst being conveyed to hospital, he asked her what had happened. Her evidence, as contained in her evidentiary statement, was as follows:

[22] I was taken to the Royal North Shore Hospital by Ambulance. Dad came with me. This was the first time I got to talk to Dad about what had happened. He asked me:
“What happened?”
I cannot recall exactly what I said but I told Dad words to the effect of:
“Darren was holding me over the balcony wall and then we fell”.

Bethany Long was not cross-examined about this evidence.
Chris Long also gave evidence, in his evidentiary statement, about these matters. His evidence was as follows:

25. I then went to the hospital with Bethany in the Ambulance. This was the first time she told me how the accident had happened. Bethany told me that Darren had picked her up in a cradle-like fashion and held her over the balcony wall.

There was no direct cross examination of Chris Long about this evidence.
Bethany Long was interviewed by Mr Maher in April 2015. The draft statement prepared following that interview is Exhibit 3. After setting out some of the events (relating to the telescope etc.), she gave the following version about the event, saying that she was “on a chair facing on to the sea”, then continued:

Dr Dauncey largely confirmed these opinions in her oral evidence. I accept them. In my view, based upon Dr Dauncey’s evidence, Mr Houghton was most likely significantly impaired by his alcohol consumption. Dr Dauncey gave evidence about why it would not be necessarily apparent to those around him to have observed symptoms of intoxication, and they include: (a) that the adults around him – specifically Mrs Houghton and Chris Long – had also been consuming alcohol, which tends to diminish the likelihood about either of them necessarily observing anything; (b) the evidence did not suggest that Mr Houghton moved significantly from being seated on the balcony area at any time, or at any times, during the course of the afternoon and early evening leading up to the fall – which tended to diminish, according to Dr Dauncey, any outward sign of intoxication, as next explained; and (c), as Dr Dauncey noted, the physical symptoms of intoxication only become apparent once “a task becomes complex”, and that visible impairment due to intoxication may not be apparent, for those that are tolerant, or in connection with “simple tasks”.
The plaintiffs were critical of Dr Dauncey for having “ignored” the evidence of those that attended, and for Dr Dauncey preferring to anchor her reasoning in the toxicology report to which reference has been made. I do not accept this submission. Dr Dauncey’s evidence was that she did not ignore it, but gave it little weight and preferred to base her reasoning in the toxicology report and her specialised knowledge, based upon her training study and experience, that permitted her to express an opinion on the likely symptoms to be experienced by a person with the level of intoxication disclosed by the toxicology report and blood alcohol concentration. In my view, that approach, and reasoning, is sound. It is particularly relevant where – as I have found – Mr Houghton did not in fact move from a chair on the balcony during the course of the afternoon. In that situation, much of what Mr Houghton would likely to have been doing (eating, drinking, and talking) required no coordination or tasks of any complexity and would therefore not have potentially yielded some outward sign of intoxication to those that might be observing him.
For the purposes of this defence, I am satisfied, based upon Dr Dauncey’s evidence, as I explain in what follows, that Mr Houghton was intoxicated and that his intoxication was the cause for him suffering the injuries that he did (s 50(1)).

Discussion and consideration

As is apparent from s 50(1) of the CLA, there is a need to establish intoxication – as defined – so as to connect the cause of the injuries to the person’s impairment of their capacity to exercise reasonable care and skill; and if it is so demonstrated, then the section applies.
The section has been construed as referring to “the act or omission that directly caused the” injury, and that the word “directly”, should be “equated with ‘proximate’”: Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 at [40]. Thus, as Brereton JA explained in State of NSW v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 at [123]:

…as s 50(1) makes clear, it directs attention to the act or omission that caused the injury, being the direct (or proximate) cause of the injury, and so is concerned with the effect of intoxication at the time of the act or omission that caused the injury, rather than antecedent intoxication which may have resulted in the plaintiff being in the circumstances in which the injury occurred.

In my view, accepting that the accident occurred in the way that I have found and based upon the evidence of Dr Dauncey (and the findings I have made in relation to her evidence), this section is satisfied. That is because, the level of intoxication (and its consequent effect on Mr Houghton) can readily explain, not only the engagement by Mr Houghton in the very act of holding Bethany Long over the balcony wall, but his subsequent loss of balance when he had done so.
If it is established – and I have found that it is so established – that there is ‘intoxication’ in the relevant sense, and s 50(1) is satisfied, the next step involves consideration of whether or not the injury is likely to have occurred “even if the person had not been intoxicated”: s 50(2) of the CLA. If the Court does not make this finding, then the Court is “not to award damages”.
The plaintiffs made no submissions in connection with the findings that should be made, in relation to s 50, if the finding was that the accident occurred in the way described by Bethany Long, but only on the basis of the version propounded by Mr Houghton (submissions at [49]). Coupled with the evidence from Dr Dauncey, what Mr Houghton did was not the act of a person exercising control. In my view, as the defendants submitted, but for the intoxication this act would not have occurred. I am satisfied it would not. This was, as the defendants argued, what Mr Houghton more or less agreed.
It follows, therefore, that the defence of intoxication under s 50 of the CLA is made out, and no liability arises in the defendants.

An objection to the report from Dr Helen Dauncey

The plaintiffs’ objections to Dr Dauncey’s report

It is appropriate at this point to address the objection taken by the plaintiffs to the report from Dr Dauncey. The plaintiffs submitted that the “totality of the report should be rejected”, because it was argued (a) that it was not shown that Dr Dauncey was an “expert” with “specialised knowledge”; and, (b) the report failed to comply with rule 31.27(1)(a) of the Uniform Civil Procedure Rules (the ‘UCPR’).
Following argument during the trial on 13 October 2022, I admitted into evidence, subject to any particular part of the report over which objection was taken, Dr Dauncey’s report. At that time, I indicated that I would give my reasons in the final judgment. These are those reasons.

The plaintiffs’ argument

The plaintiffs argued that the report was inadmissible because it was not apparent from the report that Dr Dauncey had specialised knowledge and, relatedly, there had been a failure to comply with rule 31.27(1) of the UCPR which, so the plaintiffs argued, was “fatal” to its admissibility.
The admissibility of Dr Dauncey’s opinion is governed by s 79 of the Evidence Act. By s 79(1), if “a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge”. The phrase “specialised knowledge” is not defined in the Evidence Act, but the phrase is not restrictive: Adler v Australian Securities & Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131 at [629]. It is “knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may acquire specialised knowledge by experience”: Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 at [21].
On the plaintiffs’ application that the report be rejected, the defendants tendered Dr Dauncey’s CV (Exhibit VD 1). That CV ultimately became an exhibit in the proceedings (Exhibit 9). The plaintiffs did not seek to cross-examine Dr Dauncey on the voir dire or indeed to challenge her expertise in any way. Furthermore, it is important to note that, the defendants having tendered her CV, the plaintiffs did not make a submission that Dr Dauncey did not have “specialised knowledge”. I find that she undoubtedly does. As the CV states:

Dr Dauncey is a consultant pharmacologist and toxicologist. She has a Bachelor of Pharmacy Degree and a Doctor of Philosophy Degree in pharmacology. Dr Dauncey’s PhD research “investigated the effects of alcohol and marijuana, alone and in combination, on psychomotor performance and mood”.

Dr Dauncey has evaluated the effects of “known dose of alcohol on behaviour, performance ability and mood changes in more than 750 people” and has also carried out “several studies which measured the blood alcohol concentrations achieved after known doses of alcohol and the rate of elimination of alcohol from the body, including a study of the factors which may influence this rate”.

Dr Dauncey has published papers describing her findings, and presented that data at international conferences.

Dr Dauncey’s experience “covers the effects of alcohol and drugs, both legal and illegal, on skilled performance, driving skills, mood and behaviour and their role in accidents of all kind”.

Dr Dauncey’s expertise extends to the ability to “interpret drug concentrations found in body fluids and provide an expert opinion on pharmacological issues such as drug effects, side-effects, rational use…”.

The essential matters that she was asked to address in her report were the likely blood alcohol concentration, and likely physiological effects of a blood alcohol concentration of that level, based upon the toxicology report prepared on 28 December 2014 (see [262], above). Dr Dauncey, I find, plainly has specialised knowledge – across her training, study and experience – that enables her to express an opinion on those matters.
The plaintiffs’ next objection was that because the CV of Dr Dauncey was not attached to her report, rule 31.27(1)(a) of the UCPR had the effect that the report could not be admitted into evidence. That rule, relevantly, provides as follows:

(1) An expert’s report must (in the body of the report or in an annexure to it) include the following:
(a) the expert’s qualifications as an expert on the issue the subject of the report…

The submission put by the plaintiffs was that the failure to conform with this provision meant that the report was inadmissible, and that any non-conformity could not be cured by tendering the CV of the expert (a submission which sits inconsistently with the approach adopted in Kassam v Hazzard [2021] NSWSC 1320 at [181]). The plaintiffs argued that the qualifications as an expert had to be in the report itself or in an annexure to it, and that her CV (and any other qualifications) could not even be contained within supplementary report, or even served subsequently (logically, by the submission, even serving the CV at the same time would be insufficient). No authority was cited to support any of these propositions; the outcome was said to be simply a matter of construction. That is where the matter was left by the plaintiffs.
In my view this rule is not concerned or “to be construed as rules of admissibility of expert opinion evidence, but instead, they form a code of conduct designed to improve the quality of expert opinion evidence”: Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149 [333]. I therefore do not accept the rule operates as the plaintiffs contend.

Consideration

Even if the rule operated in the way that the plaintiffs argued that it did, I regard it as a clear case where I would give whatever leave necessary to dispense with compliance with the rule (and I do so), for the following reasons. First, Dr Dauncey is plainly an expert with specialised knowledge in the area of pharmacology and toxicology with particular expertise, and specialised knowledge, in connection with the effects of alcohol on, inter alia, mood and behaviour of individuals and in interpreting scientific data in connection with these matters. And her report self-evidently is directed to issues that relate to her specialised knowledge. I do not accept that the plaintiffs could, in any way – irrespective of whether they had her CV or not – reasonably have formed the view that this was not her area of expertise. She did after all, identify herself as a pharmacologist with a PhD, and then gave a range of opinions on the various issues relating to alcohol and the role that it may have played in the accident causation. In fact, as I have noted above, the plaintiffs did not in fact contest the proposition that she did have “specialised knowledge” in the ways that I have identified. Secondly, the report was served in September 2017 and, some five years later, the plaintiffs raised the objection for the first time: the usual order for hearing required objections to be notified by each side, but the plaintiffs did not serve any objections (nor did they comply with my directions to do so) – it was explained that to do so might allow the defendants to “fix it up”. I regard it as quite unjust, and inconsistent with the requirements under ss 56 and 58 of the Civil Procedure Act 2005 (NSW), to raise the objection in those circumstances. Thirdly, and related to the second matter, I regard the point taken by the plaintiffs to be inconsistent with the modern way in which litigation is required to be conducted in this Court, as explained over 20 years ago in Nowlan vMarson Transport Pty Ltd (2001) 53 NSWLR 116; [2001] NSWCA 346 at [23]-[31]. Finally, the plaintiffs were offered an opportunity to consider securing their own expert, during the course of argument dealing with this objection, but elected not to do so. No possible injustice arises as a consequence of having made a considered decision not to secure their own expert once I had ruled as I did.

Causation

Introduction: general principles

Mr Houghton is required to prove causation and bears the onus of proving any fact relevant to the issue of it: ss 5D and 5E of the CLA. The causation enquiry requires Mr Houghton to prove factual causation (s 5D(1)(a) of the CLA) and scope of liability (s 5D(1)(b) and s 5D(4) of the CLA).
Factual causation is determined by the ‘but for’ test; that is, “but for the negligent act or omission, would the harm have occurred?”: Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48 at [45]. As French CJ, Hayne and Kiefel JJ explained in Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10, causation is “to be approached by applying common sense to the facts of the particular case” (at [43]). It may also be “useful” to apply the “but for” test – that is, to ask whether Mr Houghton’s injury would have occurred “but for” the breach of duty of care (at [56]). Or, in other words, whether compliance with the duty of care would have prevented the injury.
Turing to normative causation (ss 5D(1)(b) and 5D(4) of the CLA), in Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 at [14] the High Court explained that a:

determination in accordance with s 5D(1)(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused is entirely normative, turning in accordance with s 5D(4) on consideration by a court of (amongst other relevant things) whether or not, and if so why, responsibility for the harm should be imposed on the negligent party.

The defendants submitted that neither factual, nor normative, causation was established.

Causation: discussion and consideration

In relation to normative causation, the defendants argued that normative causation is absent because the injury is not “fairly to be regarded as within the risk created by the negligence”: Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 at [106]. The plaintiffs did not address the issue at all, presumably on the basis that the case was argued by them as “all or nothing”.
Given the way in which I have found the accident has occurred, I do not consider that causation of any kind (including, if it be required in connection with any claim in contract, causation at law) has been demonstrated. In relation to normative causation, the facts presented (and found) fall outside any ‘established class’ (Wallace v Kam at [22]) and thus application of precedent does not support normative causation. Further, the purpose and policy of the law in this area is to hold those in control of premises responsible for their condition and for any reasonably foreseeable injuries to those entering them. It is not to hold those to account for acts of the kind that I have found occurred.
In any event, I am not satisfied that factual causation is demonstrated. On the findings that I have made, the plaintiffs did not put any submission that causation could be established. In my view it is not. Even on the plaintiffs’ case, in my view the plaintiffs have not demonstrated causation.
In relation to factual causation, the defendants further argued that in relation to the balcony wall, there is no evidence that raising the height of the balcony wall “would have made any difference” – such that factual causation has not been demonstrated. These submissions are directed to the case as advanced by the plaintiffs, and on the version of Mr Houghton – which I will next consider.
In a case where it is alleged there has been a failure to act – relevantly here to alter the height of the balcony wall – the factual causation enquiry involves consideration of a counterfactual hypothesis – viz., how the taking of the action would have averted the loss or damage which Mr Houghton in fact suffered: Hennessey at [93]-[96].
In my view, Mr Houghton (again, assuming for present purposes that the accident occurred in the way that he said it did) has failed to demonstrate causation, for the following reasons.
First, if, as I have found, the balcony wall was 860 mm, and assuming that it was “required” to be a height of 865 mm, then I do not think it could sensibly be said that that the addition of 5 mm to the balcony wall would have made any difference to him falling over it. In my view it would not. The position is not different, in my view, even if the height was as Mr Maher had identified (namely, 840 mm), and the difference was 25 mm. I do not think in those circumstances it could sensibly be said that the difference is material. I am not satisfied that it is.
Secondly, even if I assume the balcony wall was required to be 1 metre high, but was only 860 mm high, then I am not satisfied that Mr Houghton has demonstrated the alleged difference – essentially the length of an average pen – would have prevented his fall. I have earlier found, and commented upon, the lack of evidence about the additional height provided by the balustrade installed in 2019. Thus, if I were to assume and infer that the balustrade sat 14 cm above the balcony wall, I remain unsatisfied that factual causation has been demonstrated. This is particularly where, as I have earlier noted, the plaintiffs did not tender any of the biomedical engineering evidence which was available. No attempt was made to elicit evidence that might permit an inference of causation; as the evidence was left, I consider it would be an exercise in speculation to infer causation.
Thirdly, to the extent that the plaintiffs’ case was that an expert report of some kind should have been obtained following the receipt of the Northern Beaches Strata Inspections report dated 19 May 2014, there is no evidence about matters including: (a) what expert, or experts, should be retained; (b) what any inspection report would have revealed; and (c) what recommendations – if any – might have been made. In particular there is no evidence about what any report might have said in relation to the balcony wall. Further even if, somehow, it is to be inferred that a recommendation would have been made to deal with the balcony wall, I am not satisfied that whatever steps were needed to have the owners corporation undertake the work to raise the height of the balcony wall would have been performed before 28 December 2014: even following notification of Mr Houghton’s accident no work was performed until 2019: see [45], above.

The limitation defence and Part 3 of the CLA: Mrs Houghton

A limitation defence was pleaded by the defendants, but no submissions (written or oral) were directed towards it. The defence was not pressed by the defendants in final submissions.

The parties confirmed, during oral submissions, that no issue arose in connection with the provisions in Part 3 of the CLA (‘Mental harm’), and Mrs Houghton’s claim.

Orders

In proceedings 2016/144762, I make the following orders:

Judgment for the defendants.

Order the plaintiff to pay the defendants’ costs of the proceedings.

In proceedings 2019/75534, I make the following orders:

Judgment for the defendants.

Order the plaintiff to pay the defendants’ costs of the proceedings.

**********

Decision last updated: 22 December 2022

Medium Neutral Citation:	Houghton v Potts & Anor. (No 2) [2022] NSWSC 1778
Hearing dates:	10-14 October; 7, 8 and 15 December 2022
Date of orders:	22 December 2022
Decision date:	22 December 2022
Jurisdiction:	Common Law
Before:	Chen J
Decision:	In proceedings 2016/144762: (1) Judgment for the defendants. (2) Order the plaintiff to pay the defendants’ costs of the proceedings. In proceedings 2019/75534: (1) Judgment for the defendants. (2) Order the plaintiff to pay the defendants’ costs of the proceedings.
Catchwords:	TORTS - Negligence – Fall over balcony wall – Reasonable foreseeability – Foreseeability of harm NEGLIGENCE – Duty of care – Leased premises –– Landlord’s duty of care – Whether landlord breached duty of care TORTS – Negligence – Contributory negligence – risk of harm – Formulation of risk of – Whether defendants knew or should have known of risk of harm NEGLIGENCE – Causation – Onus of proof - Factual causation – Scope of liability NEGLIGENCE — Defences — Intoxication
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) Residential Tenancies Act 1987 (WA) Residential Tenancies Act 2010 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420; [2009] HCA 48 Adler v Australian Securities & Investments Commission (2003) 179 FLR 1; [2003] NSWCA 131 Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No.2) [2016] NSWSC 1123 Australian Safeway Stores Pty Limited v Zaluzna (1987) 162 CLR 479; [1987] HCA 7 Australian Securities and Investments Commission v Rich (2005) 190 FLR 242; [2005] NSWSC 149 Avopiling Pty Ltd v Bosevski (2018) 98 NSWLR 171; [2018] NSWCA 146 Blacktown City Council v Hocking (2008) Aust Torts Rep 81-956; [2008] NSWCA 144 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393; [2014] NSWCA 139 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362; [1938] HCA 34 Calin v The Greater Union Organisation Pty Limited (1991) 173 CLR 33; [1991] HCA 23 Coles Supermarkets Australia Pty Limited v Bridge [2018] NSWCA 183 DovuroPty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gauci v Commissioner of Taxation (Cth) (1975) 135 CLR 81; [1975] HCA 54 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 Gulic v Boral Transport Ltd [2016] NSWCA 269 Hawkesbury Sports Council v Martin [2019] NSWCA 76 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Hudson Investment Group Limited v Atanaskovic [2014] NSWCA 255 Hunt & Hunt v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613; [2013] HCA 10 Jones v Bartlett (2000) 205 CLR 166; [2000] HCA 56 Sakoua v Williams (2005) 64 NSWLR 588; [2005] NSWCA 405 Kassam v Hazzard [2021] NSWSC 1320 Libra Collaroy Pty Ltd v Bhide [2017] NSWCA 196 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 Neindorf v Junkovic (2005) 80 ALJR 341; [2005] HCA 75 Nelson v John Lysaght (Australia) Ltd (1975) 132 CLR 201, 215; [1975] HCA 9 New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 Nowlan vMarson Transport Pty Ltd (2001) 53 NSWLR 116, [2001] NSWCA 346 Origin Energy LPG Pty Ltd v Bestcare Foods Ltd [2012] NSWCA 407 Patrick Stevedores Operations (No 2) Pty Ltd v Hennessey [2015] NSWCA 253 Paul v Cooke (2013) 85 NSWLR 167; [2013] NSWCA 311 PPK Willoughby Pty Ltd v Baird [2021] NSWCA 312 Ridis v Strata Plan 10308 (2005) 63 NSWLR 449; [2005] NSWCA 246 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 Russell v Carpenter [2022] NSWCA 252 Russell v Edwards (2006) 65 NSWLR 373; [2006] NSWCA 19 State of NSW v Ouhammi (2019) 101 NSWLR 160; [2019] NSWCA 225 State Rail Authority of NSW v Schadel [2001] NSWCA 394 Steinberg v Commissioner of Taxation (Cth) (1975) 134 CLR 640; [1975] HCA 63 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35 Thompson v Woolworths (Q'land) Pty Ltd (2005) 221 CLR 234; [2005] HCA 19 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Wallace v Kam (2013) 250 CLR 375; [2013] HCA 19 Watson v Foxman (1995) 49 NSWLR 315; [1995] NSWCA 497 Watson v George (1953) 89 CLR 409; [1953] HCA 41
Category:	Principal judgment
Parties:	Proceedings 2016/144762 Darren Houghton (Plaintiff) Anthony Potts (First Defendant) Julie Anne Potts (Second Defendant) Proceedings 2019/75534 Joanne Houghton (Plaintiff) Anthony Potts (First Defendant) Julie Anne Potts (Second Defendant)
Representation:	Proceedings 2016/144762 & 2019/75534 Counsel: Mr D Campbell SC (Plaintiffs) Mr E Anderson (Plaintiffs) Mr N Polin SC (Defendants) Solicitors: Beston McManis Lawyers (Plaintiffs) Wotton + Kearney (Defendants)
File Number(s):	2016/144762 & 2019/75534