Kone Elevators Pty Ltd v Shipton
[2021] ACTCA 33
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Kone Elevators Pty Ltd v Shipton Kone Elevators Pty Ltd v Massouras Kone Elevators Pty Ltd v Pattinson Kone Elevators Pty Ltd v Soesman |
Citation: | [2021] ACTCA 33 |
Hearing Date: | 8–9 February 2021 |
DecisionDate: | 5 November 2021 |
Before: | Murrell CJ, Loukas-Karlsson and Stewart JJ |
Decision: | See [312]–[316] |
Catchwords: | CIVIL LAW – NEGLIGENCE – Personal injury – appeal from Supreme Court – where persons injured by reason of intermittency of power to lift – where intermittency of power caused by broken wire – whether sufficient evidence to establish that cause of broken wire was a casual act of negligence by appellant’s employee – appeal dismissed |
Legislation Cited: | Administrative Appeals Tribunal Act 1975 (Cth) s 33 Civil Law (Wrongs) Act 2002 (ACT) s 100 WorkersCompensation Act 1951 (ACT) |
Cases Cited: | Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 |
Parties: | Kone Elevators Pty Ltd (Appellant) Alison Shipton (1st Respondent in ACTCA 29 of 2020) Kellie Maree Massouras (1st Respondent in ACTA 30 of 2020) Jane Angela Pattinson (1st Respondent in ACTCA 31 of 2020) Jessica Soesman (1st Respondent in ACTCA 32 of 2020) The Trust Company Ltd (2nd Respondent) Cromwell Corporation Ltd (3rd Respondent) Cromwell BT Pty Ltd (4th Respondent) Cromwell Property Securities Ltd (5th Respondent) Cromwell Property Services Pty Ltd (6th Respondent) Cromwell Funds Management Ltd (7th Respondent) Cromwell Project & Technical Solutions Pty Ltd (8th Respondent) Cromwell Property Group (9th Respondent) Cromwell Property Fund (10th Respondent) Cromwell Diversified Property Trust (11th Respondent) |
Representation: | Counsel J E Sexton SC with B K Nolan (Appellant) D Campbell SC with J Ronald (1st Respondents) N Polin SC with D Shillington (2nd to 11th Respondents) |
| Solicitors Moray & Agnew (Appellant) Ken Cush and Associates (1st Respondents) McCabe Curwood (2nd to 11th Respondents) | |
File Numbers: | ACTCA 29 of 2020; ACTCA 30 of 2020; ACTCA 31 of 2020; ACTCA 32 of 2020 |
THE COURT:
Contents
| Introduction | 4 |
| Grounds of appeal and notice of contention | 5 |
| Grounds 1–3: Insufficient evidence to conclude cause of poorly terminated wire | 7 |
| The primary judge’s reasoning | 7 |
| Submissions | 8 |
| Evidence | 9 |
| Consideration | 15 |
| Grounds 4–5: No breach | 18 |
| Submissions | 18 |
| Consideration | 18 |
| Grounds 6–9: Foreseeability of injury and causation | 19 |
| Submissions | 19 |
| The primary judge’s reasoning | 19 |
| Evidence | 20 |
| Consideration | 27 |
| Shipton damages | 29 |
| Grounds of appeal | 29 |
| Shipton appeal ground 10: Business records – s 69(3) of the Evidence Act | 30 |
| Shipton appeal ground 13: Past out-of-pocket expenses | 32 |
| Shipton appeal grounds 14–16: Past and future attendant care services | 33 |
| Shipton appeal grounds 17–18: Superannuation benefit | 37 |
| Pattinson damages: Past and future attendant care | 37 |
| Grounds of appeal | 37 |
| The primary judge’s reasons | 38 |
| The evidence | 38 |
| Consideration | 38 |
| Massouras damages: past and future attendant care | 39 |
| Grounds of appeal | 39 |
| The primary judge’s reasons | 40 |
| The evidence | 40 |
| Consideration | 41 |
| Pattinson: the limitation issue | 41 |
| Grounds of appeal | 41 |
| Consideration | 42 |
| Sanderson orders | 44 |
| Costs to the plaintiffs | 47 |
| Indemnity to Cromwell parties | 47 |
| Clause 28.1 of the Maintenance Contract | 48 |
| Clause 22 of the Maintenance Contract | 49 |
| Costs of the appeal | 49 |
| Disposition | 49 |
Introduction
These four related proceedings arise out of an incident of intermittent stoppages of lift number 2 in a high-rise office tower located in Woden, ACT, on the morning of 4 September 2013. The plaintiff in each proceeding (Mmes Shipton, Soesman, Pattinson and Massouras) was a passenger in the lift during the incident and each claimed damages in negligence against:
(a) Kone Elevators Pty Ltd (Kone), the company engaged by the building manager to conduct maintenance of the lifts in the building; and
(b) the Cromwell parties, comprised of The Trust Company Ltd (the building manager) and various Cromwell companies (the building owners).
Kone was the first defendant in each proceeding and is the appellant on appeal. The Cromwell parties were the second to eleventh defendants in each proceeding and are the second to eleventh respondents in each appeal.
In single reasons for judgment delivered on 3 April 2020, Massouras v Kone Elevators Pty Ltd [2020] ACTSC 66 (primary judgment), the primary judge found that the plaintiff in each proceeding was injured as a result of the stopping of the lift on two occasions during its descent, that Kone was vicariously liable in negligence for the injuries and ordered that there be judgment against Kone in the following sums (as corrected on 14 April 2020):
(a) In favour of Mrs Shipton: $2,140,246.48;
(b) In favour of Mrs Soesman: $24,194.35;
(c) In favour of Mrs Pattinson: $127,867.37; and
(d) In favour of Mrs Massouras: $98,232.95.
It is uncontroversial that the cause of the lift stopping on two occasions was an intermittency of power to the lift occasioned by a broken or detached wire connected to a transformer within the lift control unit. The critical issue insofar as liability is concerned is what caused the wire to be broken or detached.
The primary judge found that the wire was broken or detached during maintenance conducted by a technician employed by Kone and that it would not have been onerous for the technician to have taken the precautionary step of checking the wires connected to the control unit.
On 28 May 2020, the primary judge delivered a further judgment in relation to Mrs Shipton’s case (proceeding SC 400 of 2016) following submissions by the parties in respect of some aspects of his Honour’s quantum assessment: Shipton v Kone Elevators Pty Ltd [2020] ACTSC 129 (second judgment). Relevantly, the primary judge ordered that there be judgment for Mrs Shipton against the appellant in the sum of $2,181,073.17 (i.e., an increase of about $40,000).
On 13 July 2020, the primary judge delivered a further judgment in respect of costs and a cross-claim for an indemnity made by the Cromwell parties against Kone in each proceeding: Massouras v Kone Elevators Pty Ltd (No 2) [2020] ACTSC 181 (costs judgment). Relevantly, the primary judge ordered that:
(a) Kone pay the plaintiff’s costs of each proceeding as agreed or assessed at the ACT Supreme Court scale on a party and party basis save in the Shipton case where costs were ordered on a solicitor and client basis;
(b) Kone pay the Cromwell parties’ costs of each proceeding on an indemnity basis; and
(c) with regard to the notice of contribution or indemnity, that Kone indemnify the Cromwell parties for all losses suffered by them including legal fees and costs incurred in defence of the claim brought against them by the plaintiffs under the terms of a Maintenance Contract.
Kone appeals from the orders awarding judgment to the plaintiffs, all costs orders and the award of the indemnity to the Cromwell parties.
Unless otherwise indicated, references below to the judgment of the primary judge are references to the primary judgment.
Grounds of appeal and notice of contention
The notices of appeal filed in each proceeding identify between 19 and 28 independent errors said to have been made by the primary judge. The appeal was, however, argued by grouping the grounds of appeal as follows (the grounds being numbered in accordance with the Shipton notice of appeal unless otherwise indicated):
(a) Liability: grounds 1–3
The primary judge erred in finding that it was probable that the loosely terminated wire occasioning the intermittency in power was broken or disconnected because it was damaged by Kone’s staff, and ought to have found that the plaintiff failed to discharge her onus in relation to causation.
(b) Breach of duty: grounds 4–5
The primary judge erred in finding that Kone breached its duty of care and that if Kone had exercised reasonable care, it would have detected the loosely terminated wire.
(c) Foreseeability of injury and causation: grounds 6–9
The primary judge erred in accepting the evidence of one expert that it was well-accepted in the lift industry that sudden stops for lifts travelling at the speeds of the lift in question can easily cause damage to passengers, and should have accepted the uncontradicted findings of another expert that any sudden stop would have been “well below any possibility of injury” and that the plaintiffs had thus not discharged their onus to establish that their asserted injuries were in fact caused by the lift incident.
(d) Damages: grounds 11–18
There are a number of issues raised in relation to the primary judge’s quantification of damages in the Shipton, Massouras and Pattinson proceedings, with some differences between them. These will be identified in due course.
(e) Limitation: Pattinson grounds 10–12
Having found that Mrs Pattison’s injury was an aggravation or acceleration of a pre-existing injury, the primary judge erred by going on to find that the injury satisfied the requirements of s 16A of the Limitation Act 1985 (ACT) (Limitation Act). And, having found that s 16A applied, s 16B could therefore not, and the primary judge ought to have found that the claim, having been brought after 5 August 2016, was outside the required time for the purposes of s 16A.
(f) Costs: grounds 19–28
The primary judge erred in making a Sanderson order, in awarding costs to the plaintiffs, in awarding indemnity costs to the plaintiffs, in awarding the Cromwell parties their costs on an indemnity basis, in his construction of clause 28.1 of the Maintenance Contract and thus in ordering that Kone indemnify the Cromwell parties for their costs in defending the plaintiffs’ claims.
Some of the grounds of appeal are stated in general terms and no submissions, whether in writing or orally, were made expressly in support of them. In what follows, it is assumed that those grounds of appeal are either not pressed or are swept up in the specific submissions that were made.
In the Pattinson appeal, there is a notice of contention by Mrs Pattinson in relation to the limitation issue. The notice contends that the proceeding was maintainable as it was just and reasonable that the limitation period be extended to 3 September 2018 in accordance with s 36 of the Limitation Act.
In each appeal, there is a notice of contention by the Cromwell parties which contends that the order that Kone pay the Cromwell parties’ costs of the proceedings on an indemnity basis should be confirmed on the following grounds:
(a) The primary judge erred in allowing Kone to effectively re-open its case to serve and rely on the affidavit of Lauren Gail Smith dated 18 May 2020.
(b) The primary judge erred in not finding that Kone acted in breach of clause 22 of the Maintenance Contract in failing to effect the requisite policy of insurance required by that clause.
Grounds 1–3: Insufficient evidence to conclude cause of poorly terminated wire
The primary judge held (at [50]) that the incident was due to a poorly terminated wire causing an open circuit to the lift drive. This, in turn, caused the lift to intermittently lose power, stop and restart twice in quick succession.
This finding is not subject to challenge. Rather, what is challenged on appeal are the factual findings of the primary judge with respect to the cause of the poorly terminated wire.
The primary judge’s reasoning
After summarising the evidence in some detail, the primary judge concluded this part of his reasons as follows:
49. Mr Stevens plainly discounted the possibility that the screw had been overtightened. He discounted the possibility that the wire “hadn’t been put in properly”, saying “it must have been put in properly because we didn’t have this problem leading up to this event.” I find this to be a persuasive argument. In addition, as the person who actually observed the relevant wire and connector while it was damaged, a great deal of weight should be given to Mr Steven’s opinions.
50. Counsel for the plaintiffs submitted that I should find that the malfunction of the lift on 4 September 2013 was due to a “poorly terminated wire causing in turn an open circuit to the lift drive which caused the lift to intermittently lose… power and come to two abrupt and unexpected stops and restarts in quick succession.” This summation of the evidence is accurate, so far as it goes. It does not, of course, address the likely cause of the wire being poorly terminated. Bearing in mind the evidence of Mr Stevens that the possibility that the wire had not been “put in properly” was unlikely, and the unlikeliness of the possibility that the wire had broken because of overtightening of the screw, in my opinion it is probable that the wire broke or became disconnected because it was damaged by Kone staff performing maintenance checks. As Mr Stevens said, “we pulled on the wire a little bit too hard at some stage.” It was apparent from the evidence of Mr Stevens that a competent technician would be aware of the need to exercise care in the degree of force applied to wires in the process of checking whether they were soundly connected to the transformer. The clear inference is that the wire broke because of a failure by a Kone technician to exercise that care.
To summarise, the primary judge discounted the possibilities that the wire was disconnected because: (1) the screw had been overtightened, or (2) it had not been secured properly when the control unit was originally assembled. The primary judge did not make any express conclusion on possible cause (3), namely that vibrations over a long period of time had caused the wire to break. Prior to Mr Stevens giving evidence, that possible cause was considered by the experts at their first conclave to be the most likely cause of the wire becoming disconnected. Nevertheless, his Honour must be taken to have impliedly discounted that possibility because it is inconsistent with his ultimate finding.
Later, after considering Mr Stevens’s evidence, the experts agreed that the wire was disconnected because it had been poorly terminated. The two possibilities of what that entailed were that the wire was broken or that the terminal screw was overtightened. None of the experts said that he thought that the wire had been pulled loose by a lift maintenance technician.
His Honour concluded that the “clear inference” was that the wire broke because of the failure by “a Kone technician to exercise care”. That inference was said to arise from Mr Stevens having said “we pulled on the wire a little bit too hard at some stage” and his evidence that a competent technician would be aware of the need to exercise care in the degree of force applied to wires in the process of checking whether they were soundly connected to the transformer.
It should be observed that later in the judgment (at [80]), dealing with the plaintiffs’ case against the Cromwell parties, the primary judge concluded that “the evidence which finally emerged from Mr Stevens plainly put an end to any case, on behalf the plaintiffs, based upon vibration in the drive unit as the mechanism in the lift’s malfunction, or that the malfunction was connected with any fault in the lift motor which Kone had earlier recommended be replaced.” Also, his Honour stated the following:
82. Before considering damages, and for the sake of completeness, I make it clear that the evidence does not support the proposition that the lift maintenance regime adopted by Kone was deficient. The evidence satisfies me that the defect that caused the lift to malfunction was not the result of an inadequate service regime, but a single instance of carelessness. The records of the maintenance attendances by Kone staff in the month leading up to the 4 September 2013 do not support the proposition that the defect which caused the lift to malfunction was longstanding.
Submissions
Kone advances four primary submissions in relation to liability.
First, Kone submits, the circumstances that one of the many wires in the lift control unit breaks does not bespeak negligence. The very reason that Kone provides a service which responds to lift breakdowns is because lift components do fail from time to time, notwithstanding reasonably competent maintenance. Similarly, the principal reason that lifts are designed and constructed with “failsafe” stopping mechanisms is because faults can and do occur.
The primary judge gave a “great deal of weight” to a hypothesis for a broken wire proffered by Mr Stevens, a senior elevator technician for Kone, that the screw fastening the wire to the terminal was overtightened (primary judgment at [49]), despite Mr Stevens saying that he saw no evidence to support this hypothesis and absent an adverse credibility finding on this issue, or at all.
Secondly, Mr Stevens said that the wire must have been put in properly because the lift did not have the problem of intermittent stoppages leading up to the event. Therefore, it was necessary for the primary judge to consider that it was likely that the poorly terminated wire had not been present on the last occasion when a Kone technician, being Mr Stevens, conducted a maintenance check two days prior to the event and the probabilities were that the wire broke for some reason not associated with the maintenance.
Thirdly, the primary judge accepted Mr Stevens’s evidence that were he to have bumped the wires, he would, as a reasonable precaution, have physically checked all the wires to ensure that one was not damaged or loose: at [76]–[77]. The quality of Mr Stevens’s care was never put in question (at [82]). The absence of cross-examination on a matter “will often be a very good reason for accepting the witness’s evidence upon that matter”: Broughton v B & B Group Investments Pty Ltd [2017] VSCA 227 at [110] per Kyrou, Ferguson and McLeish JJA, cited in Lardis v Lakis [2018] NSWCA 113 at [48] per Meagher JA (Macfarlan and White JJA agreeing). Thus, there was no evidence upon which it was open to infer that the damage to the wire occurred on 2 September 2013.
Fourthly, it follows that there was no evidence upon which it was open to infer that the damage to the wire was capable of detection on 2 September 2013. The 4 September 2013 incident was the first occasion that the lift had run, stopped and reset itself in that fashion so as to suggest a poorly terminated wire was the cause. Therefore, the only available finding was that the loosely terminated wire could not be detected prior to 4 September 2013 using reasonable care and skill, even if it were loosely terminated prior to 2 September 2013.
The plaintiffs submit that the primary judge ultimately accepted Mr Stevens’s evidence that it was unlikely that the wire had been improperly inserted or that it had, through overtightening of the screw behind which it was placed, been broken. Instead, his Honour accepted that in the course of what Mr Stevens described as “pulling on the wire in a way that was a little bit too hard at some stage”, the wire had become disconnected by Kone staff at some point when they were doing maintenance checks: at [50].
Further, the plaintiffs submit there was no direct evidence available to establish what had caused the offending wire to become loose. It was thus necessary for the primary judge to look at the circumstantial evidence that was available, and to then seek to determine what inferences were available by reason of those circumstances: see Shepherd v The Queen (1990) 170 CLR 573 at 579 per Dawson J. The conclusion derived results from the proof of circumstances in which it was reasonable for the primary judge to find a balance of probabilities in favour of the conclusion reached: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw v McEwans) at 5 per Dixon, Williams, Webb, Fullagar and Kitto JJ.
The plaintiffs submit that there was no suggestion that on 2 September 2013, Mr Stevens conducted a full inspection of the wiring. The primary judge considered the weight to be given to the united force of all of the circumstances put together, then weighed up the possibilities settling on the drawn inference as the one having the greatest likelihood, as he was entitled to do: Palmer v Dolman [2005] NSWCA 361 at [41] per Ipp JA; MastersHome Improvement Pty Ltd v North East Solution Pty Ltd [2017] VSCA 88; 372 ALR 440 at [101] per Santamaria, Ferguson and Kaye JJA; Seeley International Pty Ltd v Jeffrey [2013] VSCA 288 at [45]–[48], [51] per Warren CJ, Nettle and Whelan JJA.
In response to Kone’s submission that the primary judge accepted Mr Stevens’s evidence that he would have checked the wires had he bumped them, the plaintiffs submit that this is misplaced. Instead, the plaintiffs submit, the primary judge was explaining what was required to avoid the risk at hand; no factual finding was made in those paragraphs. Accordingly, there was no requirement for the plaintiffs’ counsel to cross-examine Mr Stevens.
Evidence
Kone’s submissions draw on the totality of the evidence relevant to the question of liability. Given that, and the central contention that the evidence does not justify the primary judge’s conclusion, it is necessary to canvass the evidence at some length.
John Tibbitts
John Tibbitts, a consulting engineer, was retained by the solicitors acting on behalf of Mrs Shipton to provide an expert opinion on the way in which the lift operated and the likely cause of the incident.
Mr Tibbitts conducted a site inspection on 16 June 2016 (i.e., nearly three years after the incident) to determine the functioning of the lift during the incident and possibly the cause of the incident. This included inspecting the lift in question. In a report dated 17 August 2016, Mr Tibbitts concluded that the controller of the lift in question was experiencing excessive vibration due to the operation of some of the elements mounted within or on the controller.
Mr Tibbitts then went on to address the most likely cause of the incident, stating that the most likely cause of the perceived fall of the lift was the excessive vibration of the equipment mounted in the lift controller; the same vibration would be causing minor flexing of the wires connected to the drive transformer which in time could cause the wire to break.
Mr Tibbitts was asked to address the risks created by vibration generally, as well as excessive vibration, occurring in a lift controller. His view was that a wire that undergoes continual vibrations is being constantly bent, which will cause metal fatigue and eventual breaking of the wire.
Excessive vibration in the lift controller was said by Mr Tibbitts to likely cause either or all of the following:
(a)a wire connected to the drive unit in the controller to break;
(b)a terminal connection to the drive unit in the controller to become too loose; and
(c)a malfunction of the contactor of the drive unit on the controller.
Ian McWaters
In response to Mr Tibbitts’s report, Kone sought the opinion of Ian McWaters, a director of WSP Building Pty Ltd (a building consulting practice). On 12 May 2017 (i.e., more than three and a half years after the incident), Mr McWaters conducted a site inspection. This included inspecting the drive components of the lift in question.
In his report dated 21 September 2017, Mr McWaters addressed the possibility that various drive components of the lift could produce levels of vibration which were sufficient to cause the incident. Mr McWaters noted two sources of vibration: a large contactor mounted above the transformer, and an auto-transformer and filter choke installed in proximity to the lift controller. In respect of the latter, Mr McWaters concluded that:
[N]either these [sic] transformer/choke components would produce enough ‘movement’ of small wiring such as that associated with the incident, to cause the wire to fail due to long term exposure to low amplitude vibration.
In respect of the large contactor, Mr McWaters concluded that:
In my view the contactor may have produced sufficient vibration over time to cause a wiring fault, but other contributing factors such as accidental knocking of the wire or a poorly stripped and installed wire connection at the time of installation or during maintenance are more likely causes of a failure of the type that occurred.
…
I believe that whilst vibration is a possible cause, other factors such as disturbance and shortcomings are also relevant.
Peter Ward
The Cromwell parties sought the opinion of an expert, Peter Ward, a director of JCA Lift Consultants (a lift consultancy practice). In respect of vibration, Mr Ward noted that:
Many components in and around lift controllers such as relays, contacts and transformers when operating will generate some vibration as part of their normal function.
Mr Ward agreed with Mr Tibbitts and Mr McWaters that it was possible that vibration could have been a contributing factor to the incident, stating that:
The actual fault was acknowledged as a loose wire on a transformer that caused the lift to do an emergency stop when the connection open-circuited.
Vibration from the transformer or contactors may have been a contributing factor in causing the intermittent open circuit…
However, Mr Ward noted that at the time of his initial site visits in September 2013, there was no indication that vibration levels were excessive. Mr Ward went on to agree with Mr McWaters that vibration was not the only potential cause of the fault, stating:
In my opinion from our inspections and the Kone Elevators call report, the fault causing the incident was a broken wire which Kone Elevators rectified at the time. And all of the identified causes by Mr Ian McWaters it was reported possibly played a part in the fault occurring.
Experts’ joint report
An expert conclave, consisting of Mr Tibbitts, Mr McWaters and Mr Ward, was convened on 20 March 2019 (approximately a month before the hearing commenced). The conclave agreed that “the likely cause [of the incident] was vibration inside the control cabinet, causing either or all of a wire connected to the drive unit in the controller to break; a terminal connection to the drive unit in the controller to become too loose, or a malfunction of the contactor of the drive unit in the controller.” However, the conclave accepted that:
With respect to the cause of the incident being due to a broken wire because of vibration, we agree that the incident could have been caused for other reasons.
John Stevens
A senior elevator technician of Kone, Mr Stevens, was called by Kone to give evidence on day 14 of the hearing. As is customary in such proceedings, no affidavit, witness statement or brief of evidence giving notice of what Mr Stevens’s evidence would be was given in advance. Nevertheless, on 29 June 2016 Mr Stevens had provided a letter addressed “to whom it may concern” regarding his observations on the day of the incident on 4 September 2013. In the letter Mr Stevens said:
Upon checking the EMC (Monitoring Computer) in the High Rise Lift Motor Room at 9:45 am I found Lift 2 had performed 2 correction runs. This told me that the lift had stopped and then reset itself to the nearest floor.
I removed the lift from service and upon investigation found a broken wire to a Terminal connection on transformer 240 intermittently going open circuit.
Although there is some dispute as to whether Mr Stevens’s letter was provided to Mr Tibbitts before his first report, it is common ground that Mr Stevens’s letter was otherwise available to the experts for their reports and conclave.
Mr Stevens had been employed as an elevator technician, principally by Kone, for a period of 42 years. At the direction of his manager Mr Stevens would attend the site of the lift, Lovett Tower, several times per week to check on the operation of the lifts.
The area which contained control cabinets was only accessible to Kone personnel and the lift control cabinets themselves were kept locked.
Kone service records established that it was Mr Stevens who had performed all relevant maintenance on the lift in question between June and September 2013.
Mr Stevens performed several different types of maintenance. In a “system inspection and service”, also described as “routine maintenance”, Mr Stevens would perform a “general check of the elevator”. Among other things, this involved an inspection of the lift control cabinet. Mr Stevens’s preferred method of inspection used a screwdriver. He would:
put it on the terminals. I might tap the wires just to make sure the wires are secure, those sorts of things. I’m looking for discolouration in case that relay or contactor might be getting hot. I’m listening…for noise, buzzing, those sorts of things.
It was Mr Stevens’s evidence that he would not inspect every terminal during a system inspection and service. Instead, his practice varied depending on whether the lift being inspected had previous “problems and calls”. He stated that:
It can take up to 30 minutes or so to do a real thorough full check. I wouldn’t always do a check to that degree. So I would check the main contactors and the main things that I think would stop the lift.
An “Item 33” service was more detailed. It required that, among other things, the tightness of all connections be tested and all flexible leads and components be checked for deterioration. This again was performed using a screwdriver. Mr Stevens indicated that this type of service was performed approximately every six months.
Mr Stevens would also check the terminal connections if he was “fault-finding”. That is, he would:
[G]o through with a screwdriver…so that I can focus on each individual component and look and see if there’s anything wrong.
Although he could not state definitively how frequently the terminal connections were checked in this manner, he considered that they were checked at least every two months.
Mr Stevens attended Lovett Tower on 2 September 2013, i.e., two days before the incident in question. Kone Maintenance visit records reflect that Mr Stevens was performing a system inspection and service on the relevant lift. During cross-examination, Mr Stevens agreed that he was performing “routine maintenance” on this occasion.
Mr Stevens also attended Lovett Tower on 3 September 2013 between 6:00AM and 7:00AM. Mr Stevens acknowledged that this was before his ordinary starting time of 7:30AM. Mr Stevens could not recall what he was doing at Lovett Tower on that particular occasion. There were no maintenance records indicating the purpose of the visit. He stated that “perhaps he had a problem to fix”.
During cross-examination, it was put to Mr Stevens that the likelihood was that he was there because there had been a problem with the lift. He replied that he didn’t know. When asked about other possible reasons for his attendance, he stated:
Well, I don’t know. I might have been asked to go there because they needed someone to do a standby to move furniture or something. I don’t know why. I must have been instructed to go there early.
Mr Stevens again visited the site at 7:45AM on 4 September 2013. He gave evidence that he had not been called and that the visit was for a routine check. In the elevator control room he discovered that an alarm had activated on the elevator monitoring computer, indicating a problem with the lift.
Upon inspection of the lift controller, Mr Stevens identified a loose wire on the supply transformer. He was able to detect this because the wire moved out of its socket when force was applied to it with a screwdriver. This loose wire occasioned the loss of power to the lift intermittently, causing the electrical current to go into open circuit.
Mr Stevens observed that the screw which ordinarily connected the wire to the terminal was still tight. Mr Stevens considered that this was unusual and that it indicated that:
[E]ither the wire wasn’t terminated correctly, or it had broken for some reason.
By “not terminated correctly”, Mr Stevens meant that the wire was not properly behind the screw. He accepted that it was possible that the wire was “just sitting against the screw making contact with it”, particularly as it was curved around like a hook.
Based on his inspection on the date of the incident, Mr Stevens was unable to conclusively determine the reason why the wire had become loose. He did, however, hypothesise on possible ways by which the wire could have come loose, saying:
I was asked how could a wire come loose like this and I thought perhaps over tightening may have caused the problem. Or I also thought that maybe it had been bumped or damaged by us whilst doing our maintenance checks. Generally speaking, the screws for the terminals are designed so that if you get to a point where you’re trying to over tighten the screw, the screw head starts to strip.
During cross-examination, Mr Stevens was asked about that and said that it could be possible that the screw had been over tightened if a larger screwdriver had been used. In re-examination, Mr Stevens said that he did not observe anything on that day to suggest that the screw had been overtightened.
Mr Stevens was also asked in cross-examination about having said that “maybe it had been bumped or damaged by us whilst doing our maintenance checks”. This led to the following exchange:
So it’s just human error. Someone can bump the wire and it breaks? --- Well, we tap the wires with a little screwdriver. You give it a light—we pulled on the wire a little bit too hard at some stage. I don’t know.
Mr Stevens explained that he did not see anything during his inspection on 4 September 2013 which would suggest that the wire had been bumped. This notwithstanding, Mr Stevens still accepted that it was plausible that he might have bumped the wire during his maintenance checks.
It was not put to Mr Stevens during cross-examination that he was at fault in relation to the manner in which he had undertaken maintenance on the lift, or that he had pulled or bumped the wires and not then checked them.
During cross-examination it was put to Mr Stevens that “minimal vibration” could have caused the wire to move for a split second, causing a break in contact between the wire and the terminal. Mr Stevens did not assent to this proposition, stating that he did not believe that vibration “played any part”.
Mr Stevens was also asked about the level of vibration created by various lift components. While he accepted that there was componentry which created vibration, he stated that vibration had never been a “major issue” with this equipment, and he had never noticed any level of vibration that caused him concern that wires might become loose because of the vibration.
Mr Stevens also gave evidence which bore upon the possibility that the wire was not properly installed. He noted that the wire was installed into the terminal as part of the manufacturing process. Mr Stevens said that the wire could have failed but he discounted the possibility that the fault was caused by the wire not being inserted into the terminal at the time of manufacture, stating:
[I]t must have been put in properly because we didn’t have this problem leading up to this event.
It is to be observed that this is inconsistent with his evidence referred to at [59]–[60] above. He was not asked about the possibility of a poorly terminated wire becoming loose over time because of, for example, vibration.
It was established that the transformer had been installed as a pre-manufactured or pre-assembled unit in 1996 and that it was not supplied by Kone. It came from Finland. It was still in its original condition.
Experts’ second joint report
Mr Stevens’s evidence at trial was provided to the expert conclave, which then reconvened on 24 September 2019. The conclave was asked to assume that Mr Stevens’s evidence with respect to what he found on the day was correct. They were asked their opinion on what was the most likely cause(s) of the loose wire in the transformer in the drive unit. They concluded that:
The most likely cause of the loose wire was a poorly terminated wire.
The experts gave no reasons in their second report for that conclusion, or any explanation of what they meant by it.
Experts’ concurrent evidence
The three experts gave concurrent evidence on 24 September 2019 following the reconvened conclave. Each agreed that Mr Stevens’s practice of using a screwdriver to check the security of the connection of the outgoing wires in the transformer was a standard precaution expected of lift mechanics. That is the practice of “pulling” on the wires with a screwdriver to check that they are secure.
The conclave was also asked about what they meant by the term “poorly terminated wire”. Mr Tibbitts’s explanation was:
That the wire was not held in place by the screw that should be fastening it onto the terminal itself.
Mr McWaters, with Mr Ward agreeing, gave a similar explanation, saying that:
It’s likely—given that the wire was tested a number of times but came loose on this occasion—that the wire was secured partly by the screw but not sufficiently and at some point it decided to part company with the terminal.
In response to counsel for the Cromwell parties, Mr McWaters agreed that it was probable that either the wire was never put behind the screw such that the screw was tightened but did not actually secure the wire, or that the wire was broken, leaving a small piece of residual copper secured behind the screw. Messrs Tibbitts and Ward agreed that those were the two possibilities.
Consideration
As there was no direct evidence on what caused the wire to be or become disconnected, any conclusion on that question had to be reached on inferential reasoning from the circumstantial evidence. That directs attention to the terms of the task at hand.
In Luxton v Vines (1952) 85 CLR 352 at 358 per Dixon, Fullagar and Kitto JJ, with reference to Bradshaw v McEwans, it was said that in a civil case:
[W]here direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture. But if circumstances are proved on which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.
(Citations omitted.)
In Jones v Dunkel (1959) 101 CLR 298 at 305 (Jones v Dunkel), Dixon CJ referred to Holloway v McFeeters (1956) 94 CLR 470 at 480–481 (Holloway v McFeeters) and Bradshaw v McEwans. After setting out a passage from Bradshaw v McEwans, he said:
But the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.
Although Dixon CJ was in dissent, this passage can be taken to reflect the essential content of Holloway v McFeeters, and of the views of the justices in Jones v Dunkel: Jackson v Lithgow City Council [2008] NSWCA 312 at [10] per Allsop P, Basten JA and Grove J agreeing.
In Strong v Woolworths Ltd [2012] HCA 5; 246 CLR 182 at [34] per French CJ, Gummow, Crennan and Bell JJ, it was said that a plaintiff must prove their case on the balance of probabilities and it is no answer to the question whether something has been demonstrated as being more probable than not to say that there is a another possibility open; the determination of the question turns on consideration of the probabilities.
It also has to be borne in mind that a trial judge does not have to choose between competing possibilities if there is no reasonable basis to affirmatively draw a definite conclusion on which they can reasonably be satisfied. There is another possibility, which is that the burden of proof is not discharged:
[T]he judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden.
(Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948 at 955 per Lord Brandon of Oakbrook; quoted with approval in Kuligowski v Metrobus [2004] HCA 34; 220 CLR 363 at [60] per Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ.)
It is to be recalled that on the evidence the following possible causes of the wire breaking or becoming detached were proffered:
(a) Excessive vibrations (Tibbitts report);
(b) Vibration, accidental knocking or a poorly stripped and installed wire connection (McWaters report, and Ward agreeing);
(c) Vibration or “other reasons” (first joint report);
(d) Not terminated correctly, or broken for some reason, or overtightening, or bumped or pulled too hard (Stevens);
(e) Poorly terminated (second joint report); and
(f) Not put behind the screw or broken (McWaters, Tibbitts and Ward in oral testimony).
In this case, the primary judge, as mentioned, chose the alternative that a maintenance technician had applied too much force on the wires in the process of checking whether they were soundly connected to the transformer. That was on the basis of Mr Stevens’s evidence that “we pulled on the wire a little bit too hard at some stage”.
That statement by Mr Stevens needs to be understood in context. Various alternatives were being put to him. He agreed that “either the wire was not terminated correctly or it had broken for some reason”, he said that it “would be a possibility” that the screw was over-tightened and then this exchange took place:
And the other thing you said “or I also thought that maybe it had been bumped or damaged by us while doing our maintenance checks”?---Yes.
So it’s just human error. Someone can bump the wire and it breaks?---Well, we tap the wires with a little screwdriver. You might give a light—we pulled on the wire a little bit too hard at some stage. I don’t know.
That evidence, fairly read, puts the “wire was bumped or pulled” alternative no higher than one possibility amongst others, including that the wire broke. Mr Stevens’s statement “I don’t know” makes it clear that he was not saying that he thought that that is what happened. That was made clear in re-examination when Mr Stevens explained that the suggestion that the wire could have been bumped was made by him because he “was trying to think of things that may cause that wire to come loose”. He went on to agree with the proposition that “it’s plausible that in the course of doing your maintenance checks that you might bump wires”. In context, that meant no more than that that was a possibility, particularly as he had explained his practice of carefully checking that no wires had come loose.
By the end of the evidence, vibration as a possible cause had essentially fallen way. None of the experts favoured it, and Mr Stevens spoke against it. We consider that there is no error in the primary judge having rejected that as the likely cause. So the remaining possible causes were: (1) poor termination at the time of manufacture, (2) over tightening or (3) pulling or bumping. Poor termination at the time of manufacture would not have saddled liability on Kone because it was not responsible for assembling the control unit, but over tightening and pulling or bumping would have been Kone’s responsibility.
Given Mr Stevens’s evidence and the opinion of the experts, it can be accepted that the wire was poorly terminated. But, Mr Stevens also said that they had not had the problem before and the unit had been in place since 1996—some 17 years earlier. So, what caused the poorly terminated wire to break free? The only remaining causes are over tightening or bumping or pulling. Either would have been a casual act of negligence by a Kone technician.
It is necessary to consider the effect, if any, of the failure of anyone to put to Mr Stevens that he most probably pulled or bumped the wire loose.
The well-known rule of practice is that unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceeding: Browne v Dunn (1893) 6 R 67 (HL); Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 per Hunt J.
The rule applies not only to cross-examining counsel, but also to trial judges: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 at [75] per Heydon, Crennan and Bell JJ.
The consequence of not observing the rule of practice, which is really a rule of fairness both to the witness and to the party who called the witness, is that cross-examining counsel may be taken to accept the witness’s evidence and may not be permitted to ask the trial court, or the appeal court, not to accept it: Bale v Mills [2011] NSWCA 226; 81 NSWLR 498 at [46]–[47] per Allsop P, Giles JA and Tobias AJA; Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 318–319 per Knox CJ, Isaacs and Starke JJ.
There is also the consideration that the last time that a technician had visited the site was the previous day, on 3 September 2013 between 6:00AM and 7:00AM, when Mr Stevens was there for a reason or reasons that he could not later recall. If the cause of the wire being disconnected was that it was bumped loose by a technician who then did not realise that that had occurred, realistically that was most likely Mr Stevens—since he was the only technician who visited the site over the previous four months—and it was most likely that morning the day before. However, it was never suggested to him that it was him, and it was never suggested that he had done it that previous visit.
It is submitted on behalf of the plaintiffs that cross-examining counsel was not required to put to Mr Stevens that he must have dislodged the wire on his previous visit because Mr Stevens had said that he could not recall what he had been doing on site that morning. We do not accept that that is a valid or recognised exception to the important rule of practice. That is because if cross-examining counsel had put the point, whether as to that morning or the morning before (i.e., 2 September) or more generally, Mr Stevens would have been given the opportunity of explaining himself. There may have been a general explanation available to him that did not depend on him having remembered the reason why he was on site the previous morning.
However, for a different reason it was not necessary to put to Mr Stevens that it was likely that he bumped or pulled the wire loose. That is because in cross-examination he said that it was possible that he had done so and in answer to a question in re-examination he said that it was “plausible” that he did so. He thus had the requisite opportunity to explain himself, and there is little more that could have been put. It could have been put to him that it was more than merely “possible” or “plausible” that he had bumped or pulled the wire loose, and that it was likely that he had done so. Nevertheless, we do not consider that the failure to have put that caused any unfairness to Mr Stevens or to Kone, especially where the ultimate finding did not contradict his evidence but was rather entirely consistent with it.
In the circumstances, the primary judge was quite justified in drawing the inference that he did which is that the wire was broken loose by a casual act of negligence by a Kone technician. The ground of appeal in each appeal therefore fails.
Grounds 4–5: No breach
The primary judge held that the appellant breached its duty of care by performing maintenance on the connection to the drive transformer without due care, which resulted in the wire breaking, which in turn resulted in intermittent power loss to the lift (at [78]). Appeal grounds 4 and 5 assert that the primary judge erred in this respect.
Submissions
Kone advances a number of submissions in relation to these grounds.
First, Kone submits, in the context of the evidence of the testing that Mr Stevens did on the day of the incident, a failure to detect a loosely terminated wire did not amount to a breach; that is, the exercise of reasonable care would not have resulted in the loosely terminated wire being detected. In this respect, Kone submits that it is unimaginable what other precautions a reasonable person might otherwise have taken, and that the duty owed to the plaintiffs was only to exercise reasonable care and not a duty of absolute perfection in remedying all faults in the system.
Secondly, Kone submits that the primary judge erred by considering what measures could have prevented the injuries sustained by the plaintiffs and then to take that as the basis for determining the scope of the appellant’s liability. That is to say, that his Honour engaged in hindsight reasoning.
The plaintiffs submit that his Honour made no finding that Kone’s service regime was inadequate but rather that what caused the lift to malfunction was a single instance of carelessness (primary judgment at [82]).
Consideration
There is no substance to these grounds of appeal. As dealt with in relation to the cause of the wire becoming detached, the evidence sufficiently supported the primary judge’s finding that it was a casual act of negligence by a Kone technician that caused the purely terminated wire to become detached from its terminal. It was doubtless the very act of checking that the wire was attached which caused it to become detached. Mr Stevens said that it was “plausible” that that is what occurred. Once having caused it to become detached, it can be no answer to that act of negligence to say that he employed a proper system of checking whether it was attached.
This ground of appeal in each appeal therefore also fails.
Grounds 6–9: Foreseeability of injury and causation
Submissions
By these grounds of appeal, Kone submits that the primary judge erred:
(a) in accepting the evidence of Mr Tibbitts that it was well-recognised in the lift industry that sudden stops of lifts travelling at the speeds of the lift on the premises can easily cause damage to any passengers experiencing such sudden stop;
(b) in failing to be satisfied that the uncontradicted and unchallenged findings on the simulation conducted by Mr McWaters accurately reproduced the circumstances of the incident the subject of the proceedings or the forces to which each plaintiff was exposed in the incident;
(c) in failing to have accepted the uncontradicted and unchallenged findings of Mr Gibson that the forces that would have been exerted on the body of each plaintiff in any sudden stop by operation of the emergency brake would have been “well below any possibility of injury”; and
(d) in failing to find that each plaintiff had failed to discharge her onus that the injuries that she asserted she had sustained by reason of the lift incident were, in fact, caused by the lift incident.
In essence, Kone submits that Mr Tibbitts’s general statement as to it being known in the industry that the sudden stop of a lift travelling at a high speed can cause damage to passengers should not have been accepted over Mr McWaters’s tests of the actual lift in question which showed that it was subjected to a gradual stop which would have put forces on the body which Mr Gibson concluded would not have caused injury. On that basis, Kone submits that the plaintiffs testimony as to having been injured in the lift incident should not have been accepted
The primary judge’s reasoning
The primary judge identified the relevant risk that was required to have been foreseeable as the risk that passengers in the lift may be injured if the lift malfunctioned due to intermittent loss of power (at [58]). The primary judge then placed reliance on the statement in Mr Tibbitts’s first report that “within the lift industry it is recognised that sudden stops for lifts travelling at the speeds of the lifts in the subject building, can easily cause damage to any passengers experiencing that sudden stop.” His Honour noted that Mr Tibbitts was not cross-examined on that statement.
The primary judge described Mr McWaters’s inspection and tests of the lift in May 2017 and his finding that the rate of deceleration of the lift was about 1/3 of gravity whereas the applicable code allows a deceleration rate equal to 1 gravity or 9.8 m/s2 (at [59]). His Honour then referred to the opinion of Mr Gibson that Mr McWaters’s calculation for the rate of deceleration, or even twice that rate, would produce a load on the human body well below any possibility of injury (at [60]-[63]).
The primary judge noted that Mr McWaters did not take issue with the statement by Mr Tibbitts that it is recognised in the lift industry that a sudden stop of a lift can cause damage to passengers and that Kone did not lead any evidence to contradict that statement (at [64]). His Honour went on to say that the statement by Mr Gibson that the forces exerted on the human body would have been “well below any possibility of injury” must be approached with caution saying that it must be understood in the context of the claimed injuries in this case appearing to be the result of pre-existing conditions being exacerbated by the lift incident (at [65]).
The primary judge then dealt further with Mr Waters’ and Mr Gibson’s evidence in the following paragraph which attracted the most criticism by Kone ([66]):
In addition, the weight to be attributed to Mr Gibson’s opinions depends on the extent to which the simulation conducted by Mr McWaters accurately reproduced the circumstances which existed on 4 September 2013, and the resultant forces to which the plaintiffs were exposed. The simulation conducted by Mr McWaters involved an empty lift. On 4 September 2013, there were four adult females in the lift. There is no evidence of what additional weight this would have added to the lift, and how this may have affected the speed of the lifts descent. Mr Tibbitts referred in his report to the lift being equipped with “safety gear” intended to stop the lift in the event that it “over speeds” in its descent, but there was no evidence of the speed at which the equipment was to commence operation. I cannot assume that the additional weight carried by the lift on 4 September 2013 would not have significantly affected its rate of descent. In addition, for the simulation conducted by Mr McWaters to accurately reflect the situation which occurred on 4 September 2013 a number of assumptions must be made. It must be assumed that the means used by Mr McWaters when “tripping the brake” on the lift on 12 May 2017 produced the same result in terms of stopping the lift that was produced by the loss of power on 4 September 2013. In his report, Mr McWaters said that he tripped the brake “in a manner similar to what would have occurred in the incident”, but there is no indication in that statement that what he did was identical to what would have occurred with a loss of power. In addition, the comparability of the simulation conducted by Mr McWaters with what occurred on 4 September 2013 depends on the assumption that no relevant effect on the rate of descent of the lift, or the operation of the emergency brake, has occurred by reason of maintenance, use or deterioration of the equipment in the nearly four year period between the incident and Mr McWaters conducting his simulation.
The primary judge was not satisfied that the simulation conducted by Mr McWaters accurately reproduced the circumstances of the incident in which the plaintiffs were injured or the forces to which they were exposed (at [71]). On the basis of the evidence of Mr Tibbitts and Mr Stevens, the primary judge found that the risk of injury to a passenger in the lift by reason of the lift suddenly stopping in the course of a descent by reason of a loss of power caused by inadequate maintenance was clearly a foreseeable risk (at [72]). The primary judge rejected the contention that Mr Tibbitts’s statement should be afforded no weight, including because it had not been objected to and he was not cross-examined on it (at [75]).
The primary judge referred to the evidence of Dr Stephen Buckley, a consultant physician in rehabilitation medicine, who said that he did not believe it was possible to precisely calculate the axial load to which Mrs Shipton’s neck was exposed by the sudden stopping of the lift without knowing the precise position of the head and neck as the lift descended and stopped. His Honour regarded that to be “a sensible statement” (at [67]). The primary judge added that he was satisfied that the plaintiffs did suffer injuries as a result of the sudden stopping of the lift (at [69]).
Evidence
There was expert evidence admitted which addressed whether the incident was capable of causing the injuries complained of by the plaintiffs.
In his report of 17 August 2016, after describing the construction and operation of the lift, Mr Tibbitts stated:
Within the lift industry it is recognised that sudden stops for lifts travelling at the speeds of the lifts in the subject building, can easily cause damage to any passengers experiencing that sudden stop.
Mr Tibbitts then referred to portions of the Australian Standards for lifts which, in his view, indicate the concern for the effect of sudden stops on passengers. In particular, he noted that:
[O]n operation of the safety gear which stops the lift in the event that it over speeds in the down direction, it must apply progressive pressure to the guide rails thus bringing the lift to a gradual stop.
…
[W]hen the safety gear is operated, the retarding force must be such that the passenger is retarded by between 0.2 of the standard acceleration of free fall measured in m per sec squared and 1.0 of the standard acceleration of free fall measured in m per sec squared.
However, Mr Tibbitts was of the view that, where the cause of a lift stopping was due to the lift control system detecting a fault, the stop would not be a gradual one. This is because, where a fault is detected in the lift control system, it is considered urgent to stop the lift before serious damage to life or property can occur. There was, on Mr Tibbitts’s evidence, no requirement for a gradual stop in these circumstances. This opinion was not the subject of cross-examination.
Mr McWaters proffered a contrary view in his report dated 21 September 2017. Mr McWaters’s site inspection included, among other things, conducting a simulation with the lift in question. Mr McWaters noted that, based on his observations and advice received from Kone, it appeared that the lift equipment had not been substantially upgraded or altered between the date of the incident and the date of the inspection.
In relation to his methodology for conducting the simulation, Mr McWaters stated that he:
[S]imulated the incident by stopping the lift as it approached full speed, by tripping the break in a manner similar to what would have occurred…
This simulation was undertaken to determinate an approximation of the rate at which the lift would have stopped during the incident. Mr McWaters calculated the average rate of deceleration of the lift during the simulation as:
[O]f the order of 1/3rd of a “g” (gravity), whereas the code allows a deceleration rate of 1g (9.8m/s2) for buffers and safety gear.
On the basis of these calculations, Mr McWaters concluded that:
I do not agree that the Lift stopped more abruptly than would be the case for safety gear and buffers, as indicated by Mr Tibbitts…
I do not agree that the rate of deceleration that was experienced was outside the range anticipated by the Codes that Mr Tibbitts’ report references.
This opinion was also not the subject of cross-examination. It was also not put to Mr McWaters that the simulation did not accurately reproduce the circumstances which occurred on 4 September 2013.
Thomas Gibson, a biomechanical engineer, was also retained by Kone to express an opinion on, among other things, the likelihood of injury to a passenger riding in the lift when the emergency brake was activated. Informed by Mr McWaters’s calculations, Mr Gibson opined that (the symbol +GZ in the extract represents the vector of acceleration, being head to foot):
Mr McWaters in his Report dated 21 September 2017, measured the normal acceleration of the lift as 1 m/s2 (0.1 g), the duration of the emergency braking pulse to be 1 s and the peak deceleration to be 5.4 m/s2 (0.55 g). Based on human tolerance for +GZ this loading level is well below any possibility of injury.
Mr Gibson was provided with copies of medical records and reports relating to each of the plaintiffs. Mr Gibson was asked to express an opinion on whether the injuries and disabilities sustained by each of the plaintiffs were consistent with a lift decelerating at a rate of 3.4 m/s2 and stopping. Mr Gibson concluded that:
The plaintiff(s) had no specific injury recorded as a result of the incident on 4 September 2013. The medical opinion is that the claimed disabilities appear to be more likely the result of pre-existing conditions being aggravated by the incident in the lift. Based on human tolerance date for +GZ loading a lift decelerating at a rate of 3.4 m/s2 and stopping is well below any possibility of injury.
Mr Gibson was also asked to consider the possibility that the lift had been decelerating at twice the simulated rate (i.e., 6.8 m/s2). He reached the same conclusion—that it was still well below any possibility of injury.
The plaintiffs engaged a biomechanical expert, who attended the site, but no report was tendered.
This expert evidence has to be considered in light of the evidence of the plaintiffs, as well as various medical experts, addressing the cause of the plaintiffs’ injuries.
Shipton
Mrs Shipton gave evidence that she felt a sharp pain in her neck immediately following the incident and also experienced feelings of terror and shock. She stated that, during the day following the incident, she felt like every muscle in her body was hurting and her neck was very sore.
Mrs Shipton continued to experience neck pain. She also developed sharp pains and a burning sensation in her right arm, which she considered was getting weaker. She later developed pain in her left wrist.
Her general practitioner, Dr Ian Brown, referred Mrs Shipton to Dr Pik, a neurosurgeon. Dr Pik diagnosed Mrs Shipton with “fairly typical right C7 radicular pain due to the right C6/7 disc herniation and nerve root compromise.” He recommended that Mrs Shipton undergo surgery on her neck. This surgery was ultimately performed in February 2015. During the period leading up to the surgery, Mrs Shipton noticed clumsiness in her right arm. She also experienced a pain which she described as “like an electric shock, it’s pins and needles”.
Following the surgery, Mrs Shipton considered that there was no real improvement to the pain in her arm, but that she was not as clumsy as before.
On 12 January 2017, Dr Stephen Buckley, a consultant physician in rehabilitative medicine, assessed Mrs Shipton. Dr Buckley’s diagnosis was Mrs Shipton had a cervical fusion, complicated by a sensation of choking, which did not appear to be related to the cervical fusion. She also had bilateral shoulder traumatic capsulitis. While Mrs Shipton complained of right arm weakness, there was no other good evidence for radiculopathy following the operation. Dr Buckley presumed that, at the time Mrs Shipton saw Dr Pik, radiculopathy was present in the right C7 nerve root. With regard to prognosis, Dr Buckley stated that the fusion is permanent, and it was likely that her deficits in both shoulders would also be permanent.
Dr Buckley also addressed the matter of causation. In his view, MRI scans dated prior to the incident demonstrate that Mrs Shipton had a large C6-C7 disc protrusion. Accordingly, he was satisfied that Mrs Shipton had a pre-existing disc injury. He concluded that this pre-existing disc injury was asymptomatic prior to the incident. Dr Buckley went on to state that:
[I]t is well known that a rupture in annulus fibrosis (the tough outer covering of the disc) does not heal, and a consequent incident, such as sudden axial loading, in a falling lift which stops, might well cause re-extrusion of nucleus pulposis [sic] material.
As, on Dr Pik’s account, radiculopathy was present following the incident but prior to the surgery, he was satisfied that Mrs Shipton suffered exacerbation of this pre-existing intervertebral cervical disc injury which was attributable to the incident. He was also satisfied that, as a result of the extent of pain and radiculopathy, Mrs Shipton developed traumatic capsulitis of both shoulders.
During cross-examination Dr Buckley explained that it was not possible to determine with precision the axial load on Mrs Shipton’s neck during the incident, as it would be dependent on a number of variables such as the precise position of Mrs Shipton’s neck.
It was put to Dr Buckley that it was possible that Mrs Shipton was feigning pain. While Dr Buckley accepted that this was possible, he considered himself reasonably good at judging when this is occurring. It was also put to Dr Buckley that there was no objective evidence to support the proposition that the events of 4 September 2013 caused Mrs Shipton’s ongoing pain and disability. Dr Buckley responded:
We don’t have a video in her cervical spine which revealed that the nucleus pulposus material came out. We don’t—how can we know? All we know is that this lady was substantially okay with respect to her neck until that incident and pretty much immediately after that incident she’s trying to get more help because her neck is much worse. She gets a scan, she gets a referral to surgeons and ultimately gets an operation.
Pattinson
Mrs Pattinson gave evidence that following the incident she experienced neck pain, shoulder pain and headaches. Following consultation with her general practitioner, she underwent physiotherapy and chiropractic treatment. She would still experience intermittent neck pain after this treatment.
In September 2017, Mrs Pattinson stated that she developed numbness in her left thumb. She was referred to a neurosurgeon, Dr Justin Pik, who recommended surgery. This surgery was ultimately performed in February 2018 by Dr Rebecca Webb-Myers. Mrs Pattinson had been informed by both Dr Pik and Dr Webb-Myers that if she did not have the surgery, there was a possibility she could become a quadriplegic.
Dr Le Leu, an occupational physician, diagnosed Mrs Pattinson’s condition as:
Probable exacerbation of pre-existing cervical spondylosis made symptomatic by the subject incident; alternatively, due to the forces involved in the incident, she could have suffered neck trauma which has developed into cervical spondylosis over five years. Her left shoulder problems are more likely to be secondary to the neck rather than due to an intrinsic shoulder injury.
Dr Le Leu accepted that the lift incident, as described by Mrs Pattinson, “could quite possibly have resulted in sufficiently strong acceleration and deceleration forces to injure her neck and initiate the process which led to her needing a cervical decompression operation”.
During cross-examination, Dr Le Leu was questioned about his use of the word “possibly”. He stated that:
One cannot be 100 per cent certain about these things, because I wasn’t there at the time and I can’t look into the patient to see what’s happening inside their neck.
Dr Kathiravel Nadanachandran, a neurosurgeon and spine surgeon, also examined Mrs Pattinson. Dr Nadanachandran noted that the history provided by Mrs Pattinson indicated that she initially suffered with symptoms in the neck, with headaches occurring soon after the incident. He considered that:
The kind of rapid descent that she suffered twice during this incident could have caused some injury to the neck similar to a whiplash injury. This caused neck pain and headaches.
Dr Nadanachandran also noted that in September 2017, Mrs Pattinson developed symptoms of a neurological nature and was found to have quite marked disc protrusion at the C5/6 level, and a mild bulge at the C3/4 level. In respect of the cause of these symptoms, Dr Nadanachandran opined that:
The cause of the disc protrusion causing the spinal cord compression of major nature in September 2017 is unclear. From the history, there was probably no spinal cord compression soon after the accident. At that time she had neck pain and headaches. Unfortunately, there are no scans of either CT or MR done soon after that. The records indicate that she has seen the doctors with neck pain and headaches in 2013 twice. Prior to the incident in 2013, she claims to have had no symptoms in her neck.
…
It would therefore seem that the incident in September 2013 may have lead (sic) to an injury to the disc/discs causing the initial neck pain and leading to recurrent neck pain and headaches. The C5/6 disc then ruptured in September 2017 spontaneously or was aggravated by some unknown stress on the neck.
It is possible for a weakened disc to bulge or rupture when stressed by normal or heavy activities. The incident of 4 September 2013 in my view is possibly a contributing factor to the disc protrusion at C5/6 in 2017.
In a supplementary deport dated 8 October 2018, Dr Nadanachandran explained that he considered that it was more probable than not that Ms Pattinson’s disc was weakened in the incident of 4 September 2013.
During cross-examination, Dr Nadanachandran accepted that he could not be certain about whether Mrs Pattinson’s symptoms were due to an injury caused by the incident or degenerative disc disease related to her age. However, he clarified that it was not common to see the degree of Mrs Pattinson’s symptoms in a person of her age.
Dr Peter Bentivoglio, a neurosurgeon retained by Kone to assess Mrs Pattinson, provided a report dated 26 March 2019 in which he said:
My working diagnosis in (semble, “is”) Ms Pattinson is a lady with degenerative disease in her cervical spine with a significant C5/C6 disc prolapse, which was causing cord compression and cord changes. I do believe that the original jarring injuries back in 2013 started the problems in her neck, which progressed over the next four years, having recurrent bouts of chiropractic treatment for neck pain and then there was a sudden deterioration in 2017 simply brought on by lying in an inappropriate situation in bed, which indicates that the discs were quite unstable. The disc bulge resulted in a cord myelopathy, which required fairly urgent surgery.
During cross-examination, Dr Bentivoglio accepted that prior chiropractic treatment may have been the cause of Mrs Pattinson’s spontaneous disc rupture in 2017. However, he considered that this was “very hard to prove”.
Massouras
Mrs Massouras gave evidence that the description of her injuries contained in the WHS Incident Report Form was accurate. In that report, she said she had suffered injury to her neck and shoulders. She also recorded that she had experienced shock, by which she meant a difficulty forming words and breathing.
She consulted a chiropractor because she was experiencing pain and limited movement in her hip and lower back. At the date of the hearing, she was continuing to experience trouble with her neck and shoulders. She also reported that she had developed a chronic fear of using lifts.
Mrs Massouras accepted that she gave varying accounts of the lift incident to various medical practitioners who examined her for the purpose of the claim. These versions were more dramatic than the account of the lift incident contained in the WHS Incident Report Form.
During cross-examination Mrs Massouras denied the suggestion that she had deliberately exaggerated what had occurred in the lift to each of the medical practitioners to inflate her claim. She also denied suggestions that she had deliberately underperformed in medical examinations with the doctors who prepared reports for use in the current proceedings.
Dr Slesenger, a specialist occupational physician, examined Mrs Massouras on 20 December 2016. Dr Slesenger recorded that Mrs Massouras advised him that the incident occurred as follows:
[S]he entered the lift and the lift suddenly dropped from the 19th floor to the 11th floor, returned to the 19th floor and then dropped down to the ground floor. The lift came to a halt between floors and she and 3 others had to be assisted out of the lift by the security crew.
Mrs Massouras advised Dr Slesenger that she had immediately developed left hip and shoulder pain, but that she did not seek medical attention immediately because she was concerned about her job security. She did, however, attend a chiropractor the following day (i.e., 5 September 2013) and has been undertaking chiropractic care since.
Mrs Massouras complained of ongoing pain in her left shoulder, wrist, and left hip. She described the left hip pain as more severe and noted that her hip was prone to “giving way”. On the basis on the examination, as well as a review of documentation from Mrs Massouras’s chiropractors and general practitioner, Dr Slesenger concluded that there was evidence to support:
(a)Soft tissue injury to the left shoulder with possible ongoing left shoulder adhesive capsulitis;
(b)Soft tissue injury to the left hip with possible trochanteric bursitis; and
(c)Right wrist fracture.
As to the cause of these injuries, it was Dr Slesenger view that:
Based on the narrative, the workplace exposures are a plausible cause of Mrs Massouras’ left hip and left shoulder impairment. Clinical examination shows evidence of an ongoing impairment in the left shoulder and left hip. It would be useful for the treating chiropractor to provide a transcript of the records in order to identify a continuum link between the workplace exposures and her current impairment.
Dr Slesenger was also satisfied that, assuming that there is a causal link between the lift incident and Ms Massouras’s left hip and left shoulder impairment, there were ongoing restrictions affecting Mrs Massouras’s capacity for work. Owing to a lack of investigation and treatment, Dr Slesenger did not proffer any view on the nature, extent, or duration of any economic impairment. He recommended that Mrs Massouras undergo further assessment before these questions were addressed.
During cross-examination, Dr Slesenger accepted that the main basis of his opinion was what he had been told by Mrs Massouras and that he was primarily dependent on her narrative. However, he considered that the findings made during his clinical examination were consistent with this history and that there was no evidence of “overplay”.
Mrs Massouras was seen by Dr Zeeva Cohen, a consultant psychiatrist, on 23 March 2017. Dr Cohen provided a report dated 4 April 2017. Dr Cohen recorded that:
Ms Massouras is a 47-year-old woman who presents in the context of an incident in a lift some three years ago where according to her self-report the lift malfunctioned falling almost 19 floors and becoming dislodged between floors 3 and 4 where she and others were able to exit the lift. She reported ongoing pain and mobility problems related to her hip and arms since then as well as phenomena suggestive of posttraumatic stress disorder including avoidance of lifts, intrusive re-experiencing phenomena of nightmares and flashbacks, hyperarousal related to anxiety symptoms particularly on exposure to triggers and some general loss of resilience. She reported a move from Canberra to Melbourne shortly after the incident and adjusting to life in a new city.
Ms Massouras presents as a woman whose capacity to be independent, self-sufficient and ability to work forming an important part of her identity and feelings of vulnerability appear to have particular psychological significance for her. There appears to be short-term treatment for symptoms of anxiety and depression in approximately 2011 in the context of work-related difficulties, but having fully recovered. There also appear to have been some symptoms in the context of bullying and harassment in the workforce which she was less able to manage. There appears to be a positive family history for major mental illness; however, Ms Massouras herself does not appear to have demonstrated such illness at any time.
Dr Cohen concluded that Mrs Massouras met the criteria for post‑traumatic stress disorder due to symptoms of intrusive re-experiencing phenomena, avoidance and anxiety particularly related to using a lift. Her opinion was that this condition was related to the incident on 4 September 2013 as the psychiatric phenomenology particularly relates to lifts and there were no other traumatic events to account for the symptoms.
During cross-examination, Dr Cohen was questioned about the inconsistent account of the lift incident given to her by Mrs Massouras. It was Dr Cohen’s view that what was important was the person’s perception of the threat, rather than the actual detail itself.
Professor Richard Mattick, a clinical psychologist, also authored a report regarding Mrs Massouras. He disagreed with Dr Cohen’s diagnosis of Post-Traumatic Stress Disorder. He diagnosed Mrs Massouras with a lift or elevator phobia, which he considered consistent with the incident she had described.
Soesman
Mrs Soesman gave evidence that she experienced immediate pain in the neck and shoulders following the incident. She also considered that her lower back was aggravated. Following a visit to her general practitioner, she was referred to a physiotherapist, who treated her for neck and shoulder pain. At the date of the hearing, she continued to have some pain in her neck and shoulders.
Mrs Soesman was seen by an occupational physician, Dr Leon Le Leu, on 8 February 2017. Dr Le Leu observed evidence of a reduction in the range of movement of the neck which was unusual in a 28 year old, bilateral reduction in shoulder movement with posterior pain, and midline lumber tenderness. Dr Le Leu was satisfied that Ms Soesman had suffered a musculoligamentous injury to the neck, musculoligamentous injuries to both shoulders with possible rotator cuff injuries, and temporary exacerbation of previous mechanical lumbar back pain.
Dr Le Leu was subject to cross examination. He accepted that, at the time of his examination of Mrs Soesman, she presented with minimal symptoms in her neck and did not complain of any shoulder injury. He explained that, based on Mrs Soesman’s account and her medical history, it was his view that she had suffered a musculoligamentous injury to the neck attributable to the incident, but that it was resolved by the time he had examined her.
Ground of appeal 16 in Mrs Pattinson’s matter should therefore succeed with the result that the judgment in her favour should be reduced by $12,341.00.
Massouras damages: past and future attendant care
Grounds of appeal
In the Massouras appeal, the following grounds of appeal deal with the quantification of damages:
(10)The primary judge erred by failing to give adequate reasons for preferring, as he clearly did, the first respondent’s evidence on quantum, despite the adverse view he took to her credibility more generally.
(11)The primary judge’s findings on quantum ought properly to have been dependent, to a substantial degree, on the adverse credibility findings he made of the first respondent.
(12)The primary judge erred in making the findings as to quantum, despite his credibility adverse findings, by reason of the failure to use or palpable misuse of advantage and acting evidence, which was inconsistent with acts incontrovertibly established or which was glaringly improbable.
(13)Having found that the first respondent was in receipt of some gratuitous domestic assistance, the primary judge erred in awarding damages for past and future attendant care services on a buffer basis in the absence of evidence that the gratuitous domestic assistance was actually being provided.
(14)The primary judge ought to found that the first respondent had failed to discharge her onus that she was entitled to damages for past and future attendant care services on a gratuitous or commercial basis.
Kone submits that the damages awarded to Mrs Massouras warrant appellate intervention given how severely her credit was impugned. Kone submits that the primary judge’s “credit findings” are inconsistent with other evidence which he accepted. It is submitted that this justifies reversal of the decision on the basis that the primary judge “failed to use or has palpably misused his advantage” and whether findings are “glaringly improbable” and “contrary to compelling inferences” arising by reason of the credibility findings. Reference was made to a number of cases from where those quotes are extracted.
Kone also submits that it was incumbent on the primary judge to provide reasons why he came to the conclusion as to the soft tissue injury suffered, and his acceptance of a diagnosis as to psychological injury based on self-reporting. Kone submits that the requirement for future treatment is not explained nor are there reasons in support of the gratuitous care awarded.
In relation to grounds 13 and 14, which deal with attendant care services, Kone relies on the same submissions as it made in support of the equivalent grounds in the Shipton appeal, i.e., Shipton grounds 15 and 16.
The primary judge’s reasons
The primary judge noted (at [196]) that in March 2014, Mrs Massouras suffered a fall in which she fractured her right wrist. She had been cooking, and as she turned from the stove towards the sink her hip and left leg “gave out”. She had a plate inserted in the wrist and continues to have problems with arthritis. Sometime after the kitchen fall, she spent considerable time off work because she could not move due to pain and weakness in the hip and continues to have trouble with strength and pain in her hip.
The primary judge found (at [221]) it difficult to assess Mrs Massouras’s credibility. His Honour noted that she gave varying accounts of the lift incident to various medical practitioners who examined her for the purpose of her claim. These versions were more dramatic than the account of the lift incident given in the WHS Incident Report completed on 4 September 2013. After further discussing matters relevant to her credit, the primary judge then concluded as follows:
On balance, I accept that Mrs Massouras suffered soft tissue injuries to her hip and shoulder, as well as injuries to her lower back and neck as a result of the lift incident. I accept that she has some lingering minor problems with her neck, lower back and hips but she is able to cope with these through conservative treatment mainly by a chiropractor or a general practitioner.
The primary judge found (at [222]) that Mrs Massouras suffered a psychological injury in the lift incident, which was described by Dr Cohen as post-traumatic stress disorder. The primary judge reasoned that like many people, Mrs Massouras has encountered a number of stressors in her life, all of which undoubtedly contribute to her current condition. His Honour accepted that the lift incident is a contributor to that condition, particularly as her current condition includes a lift phobia.
The primary judge also found (at [223]) that there is no medical basis for concluding that Mrs Massouras will suffer any loss of earning capacity in the future, noting that she had continued to work on a full-time basis.
The primary judge observed (at [214]) that Dr Slesenger noted in his report that Mrs Massouras had told him that she has an ongoing disability affecting her capacity to function within the home and to perform activities of daily living.
Specifically with respect to attendant care, the primary judge reasoned as follows (at [225]):
Mrs Massouras gave evidence of being unable to undertake domestic duties because of the pain in her hip, back and shoulders. She claimed a buffer of $10,000 for past gratuitous assistance, and a buffer of $30,000.00 for future gratuitous assistance. These claims are based on a modest claim of one hour per week, with a reduction of the future component by reason of the possibility of improvement. I will allow these amounts.
The evidence
Mrs Massouras gave evidence at trial that she was particularly limited in respect of “housework and gardening”. The cause of this limitation was the pain she experienced in her lower back, hips and shoulders after performing these tasks.
It was Mrs Massouras’s evidence that, following the incident, these tasks were performed by her husband and daughter or not performed at all. Mrs Massouras said that the time spent by her husband and daughter (who lives with her parents) per week on domestic chores was a matter of hours rather than minutes, but could not give a more precise indication, stating:
They do the cooking and the washing and the cleaning so I guess however long it takes them to do it.
In his report of 27 December 2016, Dr Slesenger recorded that, during his examination of her on 20 December 2016, Mrs Massouras had told him that she was reliant upon her daughter for domestic tasks including shopping, cooking, cleaning, laundry, vacuuming, mopping, changing the bed linen and cleaning the shower enclosures although the evidence was subject to a s 136 limitation as not being admissible as proof of the assertions.
Dr Slesenger was asked to address in his report whether, in his opinion, Mrs Massouras’s social, leisure and any other activities have been impaired and, if so, his reasons “for same”. Dr Slesenger wrote that:
Mrs Massouras advised that she has ongoing disability affecting her capacity to function within the home and to perform activities of daily living.
Consideration
Kone appeal grounds based on inconsistency between the primary judge’s credit findings and his Honour’s acceptance of aspects of Mrs Massouras’s evidence rests on a misapprehension that the primary judge made adverse credit findings against Mrs Massouras. He did not. The primary judge set out in some detail the inconsistencies in what Mrs Massouras told different medical practitioners about the incident. It was those inconsistencies which apparently gave rise to his Honour stating, as mentioned, that he found it difficult to assess her credibility. There is, however, nothing inconsistent between that and accepting aspects of her evidence, as his Honour did, and for which he gave reasons. Those grounds of appeal accordingly fail.
Turning now to the question of attendant care assistance, neither in what she reportedly told Dr Slesenger or in her evidence did Mrs Massouras attempt to draw a distinction between the lift incident and her later fall while cooking in which she fractured her wrist as the sources of her limited capacity to function within the home. Since she was cooking when she fell, apparently she was not prevented from cooking by any injuries she suffered in the lift incident, although we note that she originally claimed damages also for her right wrist fracture.
On her evidence, it is simply not possible to say with any confidence at all what limitation she suffered in her ability to undertake domestic chores as a consequence of the lift incident. The primary judge made no particular findings in that regard, other than to allow the amounts claimed. There was no basis in the evidence or explanation in the reasons for such allowance. Kone’s appeal in respect of Mrs Massouras’s past and future gratuitous assistance should accordingly succeed.
The result is that Mrs Massouras’s damages should be reduced by the sum of $40,000.
Pattinson: the limitation issue
Grounds of appeal
The relevant grounds of appeal on the limitation issue in the Pattinson appeal are the following:
(10)Having found that the first respondent’s injury was an aggravation or acceleration of the injuries sustained on 4 September 2013, the primary judge ought to found that the relevant injury, for the purposes of the Workers Compensation Act 1951 (ACT) proceedings the subject of section 16A of the Limitation Act 1985 (ACT), was the injury found to have been sustained on 4 September 2013.
(11)The primary judge erred in going on to find that the injury satisfied the requirements of section 16A of the Limitation Act 1985 (ACT).
(12)Having found that section 16A of the Limitation Act 1985 (ACT) applied, section 16B of the Limitation Act could therefore not, and, the primary judge ought to have found that the claim having been brought after 5 August 2016, was without time for the purpose of section 16A of the Limitation Act.
Kone submits that the primary judge’s reasons on s 16A of the Limitation Act were erroneous as they misinterpret the reasons of the High Court in Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310 (Zickar) and Kennedy Cleaning Services v Petkoska [2000] HCA 45; 200 CLR 286. Kone submits that those cases stand for the proposition that a sudden or identifiable change constitutes an injury for the purpose of the WorkersCompensation Act 1951 (ACT) requirement that the injury occurred during the protected period of the injured person’s employment, even if it is an extension of an underlying pre-existing disease or condition.
Kone submits that on the primary judge’s analysis, the injury was the exacerbation of an underlying condition: it was an aggravation, acceleration or recurrence of a pre-existing injury. That occurred on the day of the incident: 4 September 2013, as the primary judge found. The time to bring that claim therefore expired on 5 September 2016: s 16A, Limitation Act. The claim was brought on 3 September 2018, nearly 2 years later.
Consideration
At the hearing of the appeal, senior counsel for Mrs Pattinson rightly conceded that the primary judge had erred in concluding that the case was not covered by s 16A of the Limitation Act. Being covered by s 16A, the claim was accordingly not covered by s 16B. It was brought nearly two years after time expired. It became common ground that the appeal on this point has to be decided with reference to Mrs Pattinson’s contention that although her action for damages was brought out of time, the relevant time period should be extended under s 36 of the Limitation Act to 3 September 2018 on the grounds that it is just and reasonable to do so. It was also common ground that the appeal court should itself deal with that question, rather than remitting the matter to the primary judge.
Section 36 of the Limitation Act is relevantly in the following terms:
36 Personal injuries
(1) This section applies to any action for damages if the damages claimed consist of or include damages in relation to personal injuries to any person.
(2) If an application is made to a court by a person claiming to have a cause of action to which this section applies, the court, subject to subsection (3) and after hearing such of the persons likely to be affected by that application as it considers appropriate, may, if it decides that it is just and reasonable so to do, order that the period within which an action on the cause of action may be brought be extended for the period that it determines.
(3) In exercising the powers given to it by subsection (2), a court shall have regard to all the circumstances of the case, including, for example, the following:
(a) the length of and reasons for the delay on the part of the plaintiff;
(b) the extent to which, having regard to the delay, there is or is likely to be prejudice to the defendant;
(c) the conduct of the defendant after the cause of action accrued to the plaintiff, including the extent (if any) to which the defendant took steps to make available to the plaintiff means of ascertaining facts that were or might be relevant to the cause of action of the plaintiff against the defendant;
(d) the duration of any disability of the plaintiff arising on or after the date of the accrual of the cause of action;
(e) the extent to which the plaintiff acted promptly and reasonably once he or she knew that the act or omission of the defendant, to which the injury of the plaintiff was attributable, might be capable at that time of giving rise to an action for damages;
(f) the steps (if any) taken by the plaintiff to obtain medical, legal or other expert advice and the nature of the advice the plaintiff may have received.
(4) The powers given to a court by subsection (2) may be exercised at any time notwithstanding—
(a) that the limitation period in relation to the relevant cause of action has ended since the cause of action accrued; or
(b) that an action in relation to such personal injuries has been begun.
The factual findings relevant to the exercise of the power under s 36(2) to extend time include the following:
(a)After the incident, Mrs Pattinson was initially off work by reason of the pain and headaches stemming from the incident for two and a half days, and then for “a few hours and days” over the next six weeks. After some initial treatment, her neck continued to bother her intermittently for which she used over-the-counter pain relief and continued working. (At [8].)
(b)In 2016, Mrs Pattinson was contacted by the firm of solicitors acting for the other plaintiffs in the proceedings. She was told that she could also bring a claim, but she did not act on that advice at that time because her symptoms had settled down and she decided she did not want to make a claim. (At [11].)
(c)In September 2017, Mrs Pattinson developed numbness in her left thumb. She was advised by a neurosurgeon that she had a compressed spinal cord. Although surgery was recommended, it was not undertaken at that time. Ultimately it was performed in February 2018. (At [10] and [15].)
(d)In July or August 2018, Mrs Pattinson was contacted by telephone by the solicitors representing Kone with a view to her being called as a witness. After that contact, Mrs Pattinson contacted the solicitors acting for the other plaintiffs and decided that she would make a claim. (At [12].)
(e)After Mrs Pattinson was contacted by the solicitors representing the other plaintiffs in 2016, she could have arranged to speak to them and have brought a claim at that time but did not do so because she did not think that there was much wrong with her (at [13]). She was also aware at that time that Kone “had been responsible for the behaviour of the lift” (at [14]).
(f)The medical evidence establishes, on a balance of probabilities, that Mrs Pattinson suffered an injury on 4 September 2013 by reason of the incident which weakened her cervical spine. In September 2017, Mrs Pattinson suffered a physiological change which may be described as a disc prolapse or rupture and which was either caused or contributed to by the injury on 4 September 2013. (At [15]–[16], [21].)
There are a number of considerations which support a conclusion that it is just and reasonable that time be extended to 3 September 2018 for Mrs Pattinson to have commenced her action against Kone.
First, it was known by Kone almost immediately after the incident that it had occurred, and it was known soon thereafter that claims might be brought. In particular, the claims of the other three plaintiffs were brought within the three-year period. The result is that there is no prejudice to Kone caused by the extension of time in the case of Mrs Pattinson with reference to any delay in investigating the cause of the incident or gathering or preserving evidence in relation to the incident itself.
Secondly, there is no suggestion that Kone is prejudiced by the extension of time with reference to investigating or gathering or preserving evidence in relation to Mrs Pattinson’s injury. The medical records from her various consultations and treatments over time were available, and the severity of her injury did not present until approximately four years after the initial incident so the occasion to investigate that deterioration did not arise until after the three years had elapsed.
Thirdly, until the deterioration of her condition in September 2017, Mrs Pattinson had no reason to commence an action—she admirably concluded that since her symptoms had settled down she should not commence an action. It was only after that deterioration of her condition, and subsequently surgery in early 2018, that Mrs Pattinson decided that it was worth bringing a claim. So, although she was aware before the expiry of the three-year time period that she could have brought a claim against Kone, it was not until well after the expiry of that time period that she learnt that her condition was such that it was worthwhile bringing a claim. She acted promptly and reasonably at that time.
Finally, there can be no question that a fair trial of Mrs Pattinson’s claim was possible and was not prejudiced by the delay.
In the circumstances and for the reasons identified, it is just and reasonable to extend time nunc pro tunc for Mrs Pattinson to bring her claim to the date on which it was brought. Mrs Pattinson’s notice of contention should therefore be upheld.
Sanderson orders
In the costs judgment, the primary judge made Sanderson orders, i.e., orders in each proceeding that Kone be directly responsible to the Cromwell parties for the unsuccessful (as against the Cromwell parties) plaintiffs’ liability to the Cromwell parties for costs. Kone appeals against these orders: see Sanderson v Blyth Theatre Co [1903] 2 KB 533 (CA).
The primary judge accepted (at [47]) that in order to justify the making of a Sanderson order it is not enough for the plaintiffs to demonstrate that it was reasonable for them to join the Cromwell parties in the actions; it must be demonstrated that the conduct of the unsuccessful defendant (Kone) was such as to make it just that it bears the plaintiffs’ costs owing to the Cromwell parties.
The primary judge reasoned (at [49]) that it is “simply inconceivable” that in the process of interviewing Mr Stevens “over the years” in preparation of the matter for trial Kone did not become aware of the nature of the evidence that Mr Stevens could give. That was identified by the primary judge as being that when he checked the terminal in question on 4 September 2013, the “wire was loose but the terminal was secure”.
The primary judge noted (at [50]) that there was never any attempt by Kone to call evidence that it was unaware of the evidence that Mr Stevens could give regarding the probable cause of the poorly terminated wire. He was also not re-examined or recalled with a view to establishing that the evidence he gave went beyond any statement that he had previously made to Kone’s lawyers.
The primary judge noted (at [53]) that by operation of s 5A of the Civil Procedures Act 2004 (ACT) (CPA), Kone had an obligation to assist the Court to achieve a just resolution of the real issues in dispute as quickly, inexpensively and efficiently as possible. His Honour reasoned that where a party “knowingly withholds information likely to be significant in the just resolution of a dispute, and as a consequence another party is put to increased inconvenience and expense, the party was holding the information may well be called to account to the other party in costs.”
Finally, the primary judge held (at [54]) that Kone knowingly withheld information given to it by Mr Stevens, effectively withholding information that would have made it the sole target of the plaintiffs’ claims. The primary judge was satisfied that had the plaintiffs been provided with a full account of the evidence that Mr Stevens could give, they would not have commenced or continued with proceedings against the Cromwell parties. For those reasons, his Honour made the Sanderson orders with regard to the costs each plaintiff would otherwise be required to pay to Cromwell.
By appeal grounds 19 to 21 (in the Shipton appeal), Kone asserts that the primary judge erred in making the Sanderson orders and that it was each of the plaintiffs who was responsible for having kept the Cromwell parties in each proceeding and that the plaintiffs should accordingly be liable to the Cromwell parties for the latter’s costs.
Kone accepts that in making the Sanderson orders the primary judge exercised a discretion which is subject to appellate review only on the grounds identified in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ, i.e., that the discretion was exercised upon a wrong principle, if extraneous or irrelevant matters guided or affected its exercise, or if it was exercised upon some mistake as to the facts or failing to take into account some material consideration.
In our view, the primary judge’s discretion miscarried.
First, the evidence in question, namely Mr Stevens’s evidence that the wire was loose but the terminal was secure, does not have the requisite character of being decisive. It is entirely consistent with the theory that the wire may have broken or come adrift on account of vibration. It is thus not the case (as reasoned by the primary judge at [49] of the costs judgment) that once poor termination of the wire at the time of assembly is discounted as a cause, on that aspect of Mr Stevens’s evidence any remaining cause lay at Kone’s door.
Insofar as Mr Stevens’s evidence that he or one of his colleagues may have “pulled” too hard on the wire is concerned, as explained, Mr Stevens was clearly hypothesising that as amongst a variety of other possible causes. It was only in re-examination that he agreed that that was a “plausible” cause, but even then he did not say that he thought that that was the cause. As mentioned, it was never even put to him that that was the most probable cause.
Moreover, all the experts agreed that Mr Stevens’s explanation as to how he and the other Kone technicians tested the wires, which included “pulling” them with a screwdriver, was commonplace and to be expected. Indeed, Mr McWaters had said in his report back in September 2017 that accidental knocking of the wire during maintenance may have caused it to part from the terminal, and Mr Ward in his report expressed agreement with that. There was thus nothing novel or unexpected in Mr Stevens saying that a possible cause of the wire having come adrift was that it was pulled too hard.
As is apparent from the discussion above of the question of liability, the question of what caused the wire to come apart from the terminal was by no means clear cut. Although we have concluded that the primary judge did not err in his conclusions on that question, there remains significant doubt as to just what the cause was and a conclusion that the plaintiffs failed to discharge their onus on the point may also have been open.
In short, Mr Stevens’s evidence was not decisive as to the cause and thus as to Kone’s liability and it cannot found a conclusion that had the plaintiffs known of it at an earlier time they would not have pursued the Cromwell parties.
Secondly, even if one was to conclude that the identified aspects of Mr Stevens’s evidence was decisive, there is no basis to conclude that Kone should itself reasonably have concluded that that evidence would be decisive. It would only be on the basis that Kone had itself appreciated the decisiveness of the evidence that a finding could then be made that it knowingly withheld that evidence and on that basis to justify a Sanderson order.
Thirdly, even after the plaintiffs had heard Mr Stevens’s evidence, including their cross-examination of him, and they amended their statements of claim to include for the first time the allegation that Mr Stevens or one of his colleagues was responsible for “bumping a wire connected to the transformer and dislodging it during maintenance”, they maintained their claim against the Cromwell parties.
Fourthly, there is no property in a witness. There was no evidence to suggest that the plaintiffs had sought to interview Mr Stevens before pleading a case against the Cromwell parties but had been frustrated by Kone preventing that from occurring.
Fifthly, the procedure by which the proceedings were conducted did not require Kone to give advance notice of the evidence that Mr Stevens would give, whether by way of affidavit, witness statement or brief of evidence. It was open to the plaintiffs to seek further information such as by applying for interrogatories or applying for case management orders that Kone give advance notice of the evidence that Mr Stevens would give.
In the circumstances, the Sanderson order made in each proceeding on 13 July 2020 that Kone pay the Cromwell parties costs of the proceeding should be set aside.
The Court’s discretion with regard to the question of the Cromwell parties’ costs accordingly requires to be exercised afresh. In the ordinary course, the plaintiffs would pay those costs. We do not see any reason why the ordinary rule should not apply.
Thus, there should be an order in each proceeding that the plaintiff pay the Cromwell parties’ costs on a party/party basis.
Costs to the plaintiffs
In the costs judgment, the primary judge awarded costs to each of the plaintiffs. Save in the case of Mrs Shipton where his Honour awarded costs on a solicitor and client basis, the costs awarded to the plaintiffs were on a party and party basis. The reason for the different award of costs to Mrs Shipton is based on Kone failing to accept two offers of compromise: see Civil Procedures Rules 2006 (ACT) (CPR) r 1010.
By appeal grounds 23 to 25 (in the Shipton appeal), Kone asserts that the primary judge erred in awarding costs at all to the successful plaintiffs and, in relation to Mrs Shipton, costs on the higher scale of solicitor and client basis.
Kone submits that the primary judge failed to have regard, first, to issues in respect of which each of the parties has been successful and, second, a late amendment to pleadings to include bumping the wire as a cause of the lift to malfunction.
These contentions can be dealt with briefly.
As to the first matter, there is no error in principle of the primary judge in failing to apportion costs in this way. By CPR r 1721, the costs of a proceeding are in the discretion of the Court. The ordinary rule is that costs follow the event. The Court’s power to apportion costs is expressly provided in CPR r 1705, the principles in respect of which were summarised in Lewis v Chief Executive Department of Justice and Community Safety (No 2) [2014] ACTSC 196. At [27]–[28], Refshauge J held that apportionment is only appropriate in the clearest of cases where the successful party has wholly failed on a separate and discrete issue. This is not one of those cases. Each of the pleaded possible causes went to the ultimate issue of breach of duty, an issue in respect of which the plaintiffs succeeded.
As to the second matter, the usual order for a late amendment to pleadings is that the amending party pay the costs thrown away by the amendment. However, as counsel for the plaintiffs rhetorically asked: what costs were thrown away? There was no adjournment and no raft of new evidence suddenly created as a result of the amendment. The amendment did not remove pleaded points such as vibration which, as previously mentioned, is a hypothesis consistent with Mr Stevens’s evidence. In this respect we repeat the observations made by this Court in Oliver v Roberts (No 2) [2018] ACTCA 44 (Oliver v Roberts (No 2)) at [11] per Murrell CJ, Loukas-Karlsson and Charlesworth JJ that:
Any personal injury litigation is a dynamic process in which perceived merits and capacity to predict outcome may fluctuate many times before the litigation concludes.
Finally, so far as costs on the solicitor and client scale in Mrs Shipton’s appeal is concerned, that is in accordance with the ordinary rule: r 1010. There is in our view no exceptional circumstance for the Court to order “otherwise”: see Oliver v Roberts (No 2) at [9].
Indemnity to Cromwell parties
In the costs judgment, the primary judge identified (at [55]–[56]) that the Cromwell parties relied on two bases to claim indemnity from Kone for its costs of defending the plaintiffs’ claims.
First, the Cromwell parties asserted a breach by Kone of cl 28.1 of the Maintenance Contract between Kone and Cromwell. That clause provides as follows, noting that the “Contractor” is Kone and the “Principal” is Cromwell:
The Contractor indemnifies, holds harmless and will defend the Principal from and against all suits, actions loss, damage, expense (including, but not limited to, legal fees and costs of defence and any GST thereon) and liability for injury or death of persons, or damage to property or other damage or loss resulting from, arising out of, or in any way connected with:
(a) the breach by the Contractor or its personnel of any of the provisions of this agreement; and
(b) the act, omission or negligence of the Contractor or its Personnel.
With regard to cl 28.1, the primary judge (at [72]) concluded that the clause required Kone to indemnify Cromwell against any loss occasioned to it in two circumstances. The first is where the losses are occasioned by a breach of the contract by Kone or its personnel. The second is where loss is occasioned by any act, omission or negligence of Kone or its personnel.
The primary judge found (at [74]) that the work undertaken by employees of Kone as described by Mr Stevens was maintenance work under the contract. Thus, the negligence that caused the failure of the lift was a breach of cl 28.1 giving rise to liability to indemnify the Cromwell parties for the consequences. On that basis, Kone was ordered to indemnify the Cromwell parties for all losses suffered by them including legal fees and costs incurred by them in defence of the claims brought against them.
Secondly, the Cromwell parties asserted a breach of cl 22 of the Maintenance Contract. That clause relevantly provided as follows:
22.1 The Contractor must keep current during the Term the following insurance:
(a)public liability insurance for not less than $20 million (or any other amount the Principal reasonably requires) …
22.2 The insurance policy is taken out under this clause 22 must:
(a)…
(b)note the Principal’s interest …
The primary judge held (at [73]) that on the basis of a late affidavit of Lauren Gail Smith which he received over Cromwell’s objection, Kone had taken out the requisite insurance. It was therefore held that Kone had not breached cl 22. It was also held that there was merit in Kone’s submission that there was no evidence that Cromwell had in any event ever sought to make a claim against the policy.
Kone appeals against the indemnity orders on the basis of the finding of a breach of cl 28.1 and the Cromwell parties rely on a notice of contention in relation to the primary judge’s rejection of their claim based on a breach of cl 22.
Clause 28.1 of the Maintenance Contract
With reference to the Shipton notice of appeal, the following grounds of appeal impugn the costs judgment insofar as cl 28.1 of the Maintenance Contract is concerned:
(22)The primary judge erred in his construction of clause 28.1 of the Maintenance Contract and in his finding that it was enlivened in the context of his factual findings in these proceedings, or otherwise.
…
(27)The primary judge erred in concluding that any monies, whether awarded by way of damages, costs or otherwise, were owing pursuant to the indemnity housed in Maintenance Contract, clause 28.1.
(28)Further and or, in the alternative to ground 27, the primary judge erred in failing to find that the indemnity clause entitled Cromwell only to party/party ordinary costs and that liability was met by an ordinary costs order made in their favour as against the [plaintiff].
It is to be noted that cl 13.1 of the Maintenance Contract required Kone to “carry out the Services in a good and workmanlike manner using best practice methods and with materials of a suitable quality and in conformity with the Contract Documents.” There is no dispute that the maintenance of the lift that was conducted by Mr Stevens was within the “Services” under the contract. In the circumstances, the negligence of Mr Stevens as found by the primary judge amounted to a breach of the contract. On that basis, the indemnity in cl 28.1 was enlivened. There is no error in the primary judge’s reasoning in that regard.
It is also to be noted that the indemnity in cl 28.1 in employing the wording of “damage to property or other damage or loss resulting from, arising out of, or in any way connected with” is very broad with reference to what enlivens it. Given the breadth, in particular, of the wording “in any way connected with”, there is sufficient causal connection between an act of negligence by Kone or its personnel leading to a reasonable albeit erroneous assertion of a claim against the Cromwell parties and the Cromwell parties thereby incurring costs in defending that claim.
Also, since the indemnity includes, but is not limited to, “legal fees and costs of defence”, it by its terms does not only require Kone to defend a claim brought against the Cromwell parties; if the Cromwell parties are required to defend a claim then Kone indemnifies them for their legal fees and costs of defence.
Since we have concluded that the plaintiffs should pay the Cromwell parties’ costs on a party/party basis, the indemnity will cover the difference between the party/party costs and the solicitor and own client costs. However, to the extent that a party/party costs are not recoverable from any one or more of the plaintiffs, then the indemnity will pick up that which is unrecoverable.
It follows that in our view these grounds of appeal must fail.
Clause 22 of the Maintenance Contract
Given our conclusion with regard to cl 28.1 of the Maintenance Contract, the notice of contention with regard to cl 22 falls away.
Costs of the appeal
Given the varying degrees of success of the parties on appeal and that the appeal court has not heard submissions on the costs of the appeal, the parties should be given the opportunity to make brief submissions in writing.
Disposition
In the result, in Mrs Shipton’s appeal we will make orders:
(a)Upholding appeal ground 14 in relation to past and future attendant care services;
(b)Setting aside the judgment for the plaintiff against the first defendant in the sum of $2,181,073.17 made on 3 April 2020 as corrected on 28 May 2020 and substituting it with judgment for the plaintiff against the first defendant in the sum of $1,913,960.17;
(c)Remitting the plaintiff’s claim for past and future attendant services for decision;
(d)Upholding appeal grounds 19 to 21 with regard to the Sanderson order;
(e)Setting aside the order on 13 July 2020 that the first defendant pay the second to eleventh defendants’ costs of the proceeding on an indemnity basis and substituting it with an order that the plaintiff pay the second to eleventh defendants’ costs.
In Mrs Massouras’s appeal, we will make orders:
(a)Upholding appeal grounds 13 and 14 in relation to past and future attendant care services;
(b)Setting aside the judgment for the plaintiff against the first defendant in the sum of $98,232.95 made on 3 April 2020 and substituting it with a judgment for the plaintiff against the first defendant in the sum of $58,232.95;
(c)Upholding appeal grounds 15 to 17 with regard to the Sanderson order;
(d)Setting aside the order on 13 July 2020 that first defendant pay the second to eleventh defendants’ costs of the proceeding on an indemnity basis and substituting it with an order that the plaintiff pay the second to eleventh defendants’ costs.
In Mrs Pattinson’s appeal, we will make orders:
(a)Upholding the notice of contention;
(b)Extending time nunc pro tunc for the plaintiff to commence her action to 4 September 2018;
(c)Upholding appeal ground 16 on past and future attendant care services;
(d)Setting aside the judgment for the plaintiff against the first defendant in the sum of $127,867.37 made on 3 April 2020 and substituting it with a judgment for the plaintiff against the first defendant in the sum of $115,526.37;
(e)Upholding appeal grounds 17 to 19 with regard to the Sanderson order;
(f)Setting aside the order on 13 July 2020 that first defendant pay the second to eleventh defendants’ costs of the proceeding on an indemnity basis and substituting it with an order that the plaintiff pay the second to eleventh defendants’ costs.
In Mrs Soesman’s appeal, we will make orders:
(a)Upholding appeal grounds 11 to 13 with regard to the Sanderson order;
(b)Setting aside the order on 13 July 2020 that first defendant pay the second to eleventh defendants’ costs of the proceeding on an indemnity basis and substituting it with an order that the plaintiff pay the second to eleventh defendants’ costs.
In each appeal we will make orders that:
(a)within 14 days of these orders the appellant file and serve written submissions of no more than 10 pages (with at least one and a half line spacing and 12 point font) on the costs of the appeal;
(b)within 14 days after service on them of the submissions referred to in Order (a), the respondents file and serve written submissions of no more than 10 pages (with at least one and a half line spacing and 12 point font) in response; and
(c)within 7 days after service on it of the submissions referred to in Order (b), the appellant file and serve written submissions of no more than 5 pages (with the same requirements as to line spacing and font size) in reply.
| I certify that the preceding three hundred and sixteen [316] paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Loukas-Karlsson and Justice Stewart. Associate: Date: |
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