McKenzie v Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management)
[2024] VCC 429
•18 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-22-04598
| ALAN BERNARD McKENZIE | Plaintiff |
| v | |
| CHARLES STEWART & COMPANY PROPRIETARY LIMITED (trading as COLAC RENTAL MANAGEMENT) (ACN 004 230 102) | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6, 7, 8, 12, 13, 14 and 15 December 2023 | |
DATE OF JUDGMENT: | 18 April 2024 | |
CASE MAY BE CITED AS: | McKenzie v Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 429 | |
REASONS FOR JUDGMENT
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Subject:OCCUPIER’S LIABILITY
Catchwords: Claim for damages by tenant against managing agent for injury suffered when ascending steps at rented residential premises – negligence – breach of occupier’s duty – causation – contributory negligence
Legislation Cited: Wrongs Act 1958 (Vic), Part IIA, s14A, Part X, s47, s48, s49, s56, s62, s281A; Evidence Act 2008 (Vic)
Cases Cited:Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200; Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160; Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123; Onassis v Vergottis [1968] 2 Lloyd’s Rep 403; Jones v Dunkel (1959) 101 CLR 298; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 412; Wilkinson v Law Courts Limited [2001] NSWCA 196; Gould v Mount Oxide Mines Ltd (In Liq) (1916) 22 CLR 490; Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279; Wyong Shire Council v Shirt (1980) 146 CLR 40; Jones v Bartlett (2000) 205 CLR 166; Ahluwalia & Ors v Robinson [2003] NSWCA 175; Neindorf v Junkovic (2005) 80 ALJR 341; March v E and MH Stramare Pty Ltd (1991) 171 CLR 506; Strong v Woolworths Ltd (2010) 246 CLR 182; Victorian Stevedoring Pty Ltd v Farlow [1963] VR 594; Yeung v Santosa Realty Co Pty Ltd & Anor (2020) 60 VR 161; Howe v Zuchowski [2024] VSCA 56
Judgment: Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram KC with Mr M Seelig | Slater and Gordon |
| For the Defendant | Mr P J Hayes KC with Mr A Kleiman | HBA Legal |
HER HONOUR:
Introduction
1The plaintiff, Mr Alan McKenzie, claimed that on 27 September 2019, he slipped and fell from a concrete step at the rear of a house he rented at 1 Scott Street, Colac (“the house”), injuring his left ankle.
2The defendant, Charles Stewart & Company Proprietary Limited (trading as Colac Rental Management) (“Charles Stewart & Company”), was the managing agent of the house from some time prior to 2008.
3Mr McKenzie alleged that his injuries were caused by the negligence and/or breach of occupier’s duty of care of Charles Stewart & Company. He claimed damages for his injuries.
4A jury of six was empanelled on 29 November 2023, but was discharged without verdict on 6 December 2023. A new jury was empanelled later that day and the trial started again.
5On 11 December 2023, the parties jointly sought, and the Court granted, an application to discharge the second jury without verdict. The parties agreed that the matter should continue without a jury.
6For reasons that follow, I find there was no breach of duty by Charles Stewart & Company. If Mr McKenzie had established that Charles Stewart & Company breached its duty of care, he has not satisfied his onus to establish any breach of duty was a cause of the incident. Mr McKenzie’s claim is therefore dismissed.
Background
7The following background facts are uncontroversial. Where any part was contested, these are my findings save where indicated.
8The house is a modest three-bedroom weatherboard house built in the early 1900s. It was extended sometime in the 1950s by way of a skillion roofed extension to the rear which provided an internal bathroom and laundry, and a central mud room.
9
Patio doors in the mud room led out to a covered alfresco area with a concrete veranda and the two concrete steps in issue in this case (“the steps”), as shown in the photograph below.[1]
[1]Joint Court Book (“CB”) 741
10It was not clear on the evidence when the steps were constructed, but the parties proceeded on the basis that they had been present for decades.[2] There was a concrete path leading from the veranda to a washing line and garage.
[2]Plaintiff’s outline of submissions dated 15 December 2023, paragraph [5], and Transcript (“T”) 709
11In the period 2008 to 2017, the house was let to several different tenants.
12Mr McKenzie tendered documents, discovered from Charles Stewart & Company’s property management system, relating to repairs and maintenance undertaken at the house in 2012,[3] 2015 and 2016.[4] On each occasion Charles Stewart & Company reported an issue to the owner, the recommended repairs were authorised by the owner. None of those repair or maintenance issues concerned the steps.
[3]CB 1558, CB 1559, CB 1557 and CB 1567
[4]CB 642-645
13On 2 March 2017, Mr McKenzie, his daughter, and her boyfriend, signed a Residential Tenancy Agreement for the house.
14On 6 March 2017, Charles Stewart & Company completed a condition report for the house.[5] This noted, relevantly, that the porch, staircases, back undercover and paving/BBQ areas of the house were in good condition.[6]
[5]CB 491
[6]CB 499
15On 6 March 2017, Charles Stewart & Company provided two copies of the condition report to Mr McKenzie, his daughter, and her boyfriend.[7]
[7]CB 517; T529
16There was no evidence of any dispute as to the content of the condition report.[8]
[8]T532
17On 27 March 2017, Mr McKenzie’s daughter contacted Charles Stewart & Company in relation to three issues at the house:[9]
(a) three floorboards in the lounge were “spongey”;
(b) she sought permission to put a garage door on the garage in place of the shade cloth that was there;
(c) the shower and bath were slow to drain, and the toilet was running all the time.
[9]CB 630; CB 629
18These requests, and Charles Stewart & Company’s actions in relation to them, were recorded in Charles Stewart & Company’s property management system.
19Charles Stewart & Company, with the approval of the owner, arranged for a handyman to repair the floorboards in the lounge, and a plumber to attend to the bathroom drainage issues. The tendered documents did not identify whether permission was sought from, or given by, the owner regarding the installation of a garage door.
20In this proceeding, Mr McKenzie claimed, and Charles Stewart & Company denied, that he made complaints about defects in the steps prior to the incident.
21Further, Mr McKenzie claimed, and Charles Stewart & Company denied, that he had complained about the absence of a handrail in the vicinity of the steps prior to the incident.
22On 8 June 2017, three months after Mr McKenzie moved into the house, Charles Stewart & Company conducted a routine inspection of the house, recorded in a report of the same date.[10]
[10]CB 521
23On 14 December 2017, Charles Stewart & Company conducted a further routine inspection of the house, recorded in a report of the same date.[11] The report included various photographs of the inside and outside of the house, including the alfresco area.[12]
[11]CB 525
[12]CB 529
24Mr McKenzie’s daughter and her boyfriend moved out of the house at the end of 2017. After that, Mr McKenzie lived there alone.[13]
[13]T87
25Charles Stewart & Company conducted further inspections of the house on 21 June 2018,[14] 18 January 2019[15] and 18 July 2019.[16] The 18 July 2019 inspection noted that the house was in an unclean condition, and a follow-up inspection was to be made.[17] It is not clear on the evidence whether that happened.
[14]CB 531
[15]CB 536
[16]CB 542
[17]CB 543
26The incident occurred during the evening of Friday, 27 September 2019.
27Mr McKenzie said that at dusk, he was bringing a basket of washing in from the washing line, when he fell and injured his left ankle because of defects in the bottom step.
28There were no witnesses to the fall.
29There was no dispute that Mr McKenzie fell and injured his left ankle on 27 September 2019. The circumstances of the fall, and its cause/s, were in dispute.
30On 19 October 2019, Mr McKenzie’s brother, Murray McKenzie, attended the house to help Mr McKenzie move out. Whilst there, Mr McKenzie’s brother recorded two short videos of Mr McKenzie explaining the circumstances of the incident.[18] These were tendered by agreement between the parties, together with an agreed transcript.[19] Both parties submitted that the videos supported their case.
[18]Exhibit P39 and P40
[19]Exhibit P41
The issues
31The following issues arise for determination:
(a) What was the state of the steps on 27 September 2019?
(b) What did Mr McKenzie know about the state of the steps?
(c) What did Charles Stewart & Company know about the state of the steps?
(d) Has Mr McKenzie established what happened in the incident?
(e) What duty of care did Charles Stewart & Company owe Mr McKenzie?
(f) Did Charles Stewart & Company breach its duty of care?
(g) Was any breach of duty, a cause of injury, loss or damage to Mr McKenzie?
(h) Was Mr McKenzie contributorily negligent? And, if so, by what percentage?
(i) If damages are to be assessed, in what amount should damages be awarded?
Overview of the evidence
32The following witnesses gave evidence:
(a) In Mr McKenzie’s case – Mr McKenzie; his parents, Alan and Lorraine McKenzie; his brother, Murray McKenzie; his son, Alan McKenzie; Mr Russell Miller, orthopaedic surgeon, and Dr Andrew Short, human biomechanical engineer;
(b) In Charles Stewart & Company’s case – former property managers, Kaylene Callahan and Sharon Judd; former assistants, Carla Edwards and Leanne Storer, and Mr Michael Dooley, orthopaedic surgeon.
33The parties each tendered various documents, photographs, and answers to interrogatories.
34Mr McKenzie also tendered a pair of steel-capped work boots similar to those he was wearing at the time of the incident.
35Mr McKenzie tendered a report of Dr David Kennedy, sports and industrial physician.[20]
[20]CB 110
36Charles Stewart & Company tendered the records of the Colac Hospital in respect of Mr McKenzie’s attendances on 27 and 28 September 2019, and a clinical record of Mr McKenzie’s general practitioner (“GP”), Dr Anne Pushparajah, dated 3 October 2019.[21]
[21]CB 764-765
What was the state of the steps on 27 September 2019?
37Approximately 25 photographs were tendered which showed the steps at various times between 2016 and 2023.
38The top step was the width of the patio doors.
39The bottom step was significantly larger than the top step.
40There was no dispute between the parties that the steps were unchanged between 2008 and 2019. On the evidence, the steps remain in the same condition to the present time.
41The steps appeared to have been added to and/or repaired over time. Apart from the fact that this occurred prior to 2008, there was no other evidence as to when this happened.
42The steps were uneven in places, and cracked, as illustrated in the following photographs.[22]
[22]CB 1449
43Relevantly, the bottom step had unevenness on the top surface and face. The height disparity between each side of the crack on the bottom step was measured to be about 25 millimetres.[23] Those features are illustrated in the photographs below:[24]
[23]T405
[24]CB 197; CB 589
44There was no handrail.
What did Mr McKenzie know about the state of the steps?
45Mr McKenzie said that he believed the concrete steps were cracked, disjointed and unsafe. He said that he complained to Charles Stewart & Company in those terms “once or twice” prior to the incident.[25]
[25]T89
46Mr McKenzie said:[26]
“It was obvious to me that there was add-ons right throughout the whole steps: there was variations in colour, the joins didn’t join properly, there was ridges and unevenness on the top step and the first step and cracks. It was unsafe.”
[26]T90
47Mr McKenzie said that his parents were regular visitors to the house whilst he lived there.[27] Mr McKenzie said that he spoke to his parents about the steps “[b]ecause they’re elderly and, basically, the steps didn’t have any safety rails”.
[27]T120
48I find that Mr McKenzie was familiar with the state of the steps at all relevant times.
What did Charles Stewart & Company know about the state of the steps?
49Charles Stewart & Company conducted regular inspections of the house between 2008 and 2019. During each tenancy, a condition report was prepared at the start, then a three-month inspection performed, and thereafter six-monthly inspections.
50Ms Callahan or her assistant conducted the inspections of the house between 2008 and March 2017. After that, Ms Judd took over as the property manager and conducted the inspections of the house between June 2017 and the end of Mr McKenzie’s tenancy.
51The contemporaneous documents evidencing those inspections did not note any relevant issue with the steps.
52Mr McKenzie’s case at trial was that he complained to Charles Stewart & Company about defects in the steps and the absence of a handrail prior to the incident.
53In his evidence-in-chief, Mr McKenzie said the following regarding his complaint/s about the steps:[28]
[28]T89-90
Q:“Did you raise any issues about the matters that are relevant to this case?---
A:Yes, I did.
Q:What did you say in relation to the steps at the rear of the premises?---
A:That they were cracked, disjointed and unsafe.
Q:And do you remember the frequency with which you raised those issues with Sharon Judd?---
A:I’d mentioned it prior to this injury/accident occurring.
QOnce or more than once?---
A:Once or twice prior to the incident, yes.
QAnd what was the nature of your complaint?---
A:That I felt unsafe ascending the steps into the backdoor.
QDid you make any request of Sharon Judd as to any remedial action that you were seeking?---
A:I wanted it fixed, yes. I have elderly parents.
QAnd by using the word ‘fixed’, what precisely were you seeking, or did you not tell her what, precisely, you were seeking?---
A:I asked that there be a handrail and I asked that the steps be made more acceptable to ascend.”
54During cross-examination, Mr McKenzie was asked to identify when he complained about the steps to Ms Judd. He thought it was closer to when he started living at the house. He said:[29]
“It was prior to the accident and it would have been after my parents would have visited and there was a near miss then, so that’s when it did occur. …
… it was prior and it was not long after we moved in there.”
[29]T277-278
55I found Mr McKenzie’s evidence about the complaint/s he made somewhat unsatisfactory.
56First, his evidence was vague as to timing.
57Second, Mr McKenzie thought he complained after a visit from his parents during which there was a “near miss”. I took him to mean some sort of near accident involving the steps and one or both of his parents. Neither of his parents gave evidence of any “near miss”.
58Third, if Mr McKenzie literally felt “unsafe” using the steps, it does not accord with ordinary human behaviour to make just one, or possibly two, requests for those perceived safety issues to be resolved, and not follow up thereafter.
59During closing submissions, I asked Senior Counsel for Mr McKenzie, whether an inference was open from Mr McKenzie’s evidence that he had asked for a rail of some sort to be added in the vicinity of the steps for the benefit of his parents because they had mobility issues. That is, an adaptation because of their mobility issues. Counsel accepted the inference was open.
60However, having carefully considered Mr McKenzie’s evidence in the context of the whole of the evidence, I am not persuaded that he made any complaint about the steps or the absence of a handrail, or any request for the installation of a handrail prior to the incident.
61Each of Charles Stewart & Company’s witnesses described Charles Stewart & Company’s system for recording maintenance complaints and requests.
62No document was tendered recording any complaint to Charles Stewart & Company from Mr McKenzie or any other person regarding the steps and/or the absence of a handrail prior to the incident.
63No document was tendered recording any request by Charles Stewart & Company to the owner regarding repair of the steps and/or the installation of a handrail.
64Charles Stewart & Company asked the Court to infer that if there had been such a complaint, particularly a complaint about safety, it would have been documented. Thus, the absence of a record supported the view that no such complaint was made.
65I bear in mind that Mr McKenzie carries the onus of proof in respect of each material fact relevant to his claim.
66Charles Stewart & Company does not carry the onus to prove that a complaint was not made.
67Mr McKenzie raised several other issues during his tenancy. These included matters best described as maintenance or repair, as well as the garage door query, which is better characterised as a sought-after improvement. Each of these issues was documented.
68Apart from his alleged complaints about the steps and/or handrail, Mr McKenzie did not suggest that he raised any other issue that Charles Stewart & Company did not document. That is, Mr McKenzie’s evidence did not support an inference that Charles Stewart & Company’s record keeping as to maintenance or repairs was deficient.
69I find that if Mr McKenzie had complained about the safety of the steps or the need for a handrail, Ms Judd, or the Charles Stewart & Company employee to whom it was reported, would have recorded the complaint or request. The absence of such a written record tells against the alleged complaint/s or request/s having been made.
70Further, I find that if Mr McKenzie had complained about the safety of the steps or the absence of a handrail, Ms Judd, or the Charles Stewart & Company’s employee to whom it was reported, would have contacted the owner to report the issue. The absence of a written record of such a report tells against the alleged complaint/s having been made.
71Additionally, the absence of any quotes for repair of the steps or for the installation of a handrail prior to the incident tells against the alleged complaints having been made.
72Further, Ms Callahan, Ms Edwards, and Ms Storer each said they could not recall Mr McKenzie making a complaint about the steps or the absence of a handrail. I accept that evidence. However, such acceptance allows for the possibility that they had forgotten about the complaints, or the complaints were made to another/others.
73Senior Counsel for Mr McKenzie submitted that Ms Judd “confirmed in frank terms” that Mr McKenzie had requested a handrail.[30] Given that submission, I must separately address the evidence of Ms Judd relevant to this issue.
[30]T713
74Ms Judd could not recall speaking to Mr McKenzie at Charles Stewart & Company’s office, but believed she spoke to him at routine inspections.[31] She had no recollection of Mr McKenzie complaining about the steps.[32] I accept that this lack of recollection admits of the possibility that it may have happened but was not remembered.
[31]T590
[32]T603
75Ms Judd said that if there was a maintenance request or complaint about a property, the procedure was that the owner would be contacted, and quotes obtained.[33] It would be documented in the relevant file for the property. Ms Judd said that she would always follow up maintenance issues.[34] Ms Judd said that if such a request was made, there would likely be a record of it.[35] I accept her evidence in that respect, which was not challenged.
[33]T600
[34]T607
[35]T614
76I found Ms Judd’s evidence as to whether Mr McKenzie raised an issue about a handrail confusing. At one point during cross-examination, it appeared that Ms Judd had a memory of Mr McKenzie raising an issue about the installation of a handrail.[36] Upon further clarification it became apparent that the witness and cross-examiner were at cross purposes.[37]
[36]T613
[37]T614
77Counsel for Mr McKenzie referred to the following evidence that Ms Judd gave towards the end of cross-examination in support of a submission that “Ms Judd confirmed that there was a request made for a handrail at the back”.[38] I find the evidence, set out below, does not support the submission:[39]
[38] Plaintiff’s outline of closing submissions dated 15 December 2023, paragraph [57]
[39]T649
Q:“Was there ever any consideration, as a result of any inspection you took at these premises, to install a railing on these steps?---
A:I would have – I’m sure I sent something to the landlord in regards to the property and the back step but I can’t remember what happened because I don’t know whether I was still there after that time. So - - -
Q:So can I take it from that that – and, again, this is not at all a criticism of you in any way – you did recognise that these two steps did require a railing to render them safer for use by pedestrians?---
A:Possibly, yes.
Q:When you say ‘possibly’, in these courts - - - ?---
AI’m not a professional with that kind of thing, so - - -
Q:No, I understand that, and I’m not suggesting you are. I want to deal with something. The word ‘possibly’, is a fraught one. When you say ‘possibly’, does that mean more likely than not?---
A:Yeah, probably.”
[emphasis added]
78I pause to note that the fact that a house could be made “safer” does not mean that it is dangerous or defective.[40]
[40] Jones v Bartlett (2000) 205 CLR 166, at paragraph [23]
79As to the above passage of evidence, the cross-examiner did not seek any clarification from Ms Judd about the communication to the owner, whether as to timing or otherwise.
80I find that the fact that Ms Judd questioned whether she was “there”, and what “happened” with that communication, supports an inference that if a request was made it was near the end of her time managing the property. On the evidence, she was still managing the property when Mr McKenzie moved out (as revealed by Murray McKenzie’s email to her dated 24 October 2019).[41] The more probable inference on the evidence is that if any such request was made of the owner, it was after the incident.
[41]CB 596
81I do not find that the more probable inference from Ms Judd’s evidence was that, prior to the incident, Mr McKenzie asked for a handrail, whether because the steps were unsafe or otherwise.
82Considering the whole of the evidence, I am not persuaded that Mr McKenzie complained to Ms Judd, or any other employee of Charles Stewart & Company, regarding the steps or the absence of a handrail at any time prior to the incident.
83I accept the evidence of Ms Callahan and Ms Judd that they each inspected the house on a number of occasions. They walked around the house, inside and outside, assessing its condition. They were looking for any damage, and if anything needed fixing.[42] They took photographs of each room and the outside of the house.
[42]T594
84They each used the patio doors and the back steps when they went out the back of the house. They each believed the house was in a habitable condition.
85Ms Judd said the step was “fine” and “solid” to her.[43] She said, “they were a bit of a weird step but they … seemed to be solid, to me …”.[44]
[43]T611
[44]T618
86Ms Callahan gave evidence to similar effect.[45]
[45]T540-541 and T558-560
87Neither Ms Callahan nor Ms Judd had any difficulty using the back steps when they inspected the house.
88I accept the evidence of Ms Callahan and Ms Judd that at no time prior to the incident, did they form the view that the steps posed a safety issue or required repair.
89I accept the evidence of Ms Callahan and Ms Judd that at no time prior to the incident, did they form the view that the steps required a handrail for safe use.
90Counsel for Mr McKenzie placed significant reliance upon certain answers to interrogatories sworn by Mr McDonald on behalf of Charles Stewart & Company. Ms Callahan and Ms Judd said that Mr McDonald had not consulted them before swearing the answers. Neither of them knew if he had inspected the premises himself.
91Mr McDonald answered “Yes” to Interrogatory 2(d)(ii):[46]
“… did the servant or agent make any observations in respect of the Back Steps’ condition, levelness, whether they were safe to walk on and/or constituted a tripping hazard?”
[46]Exhibit P22
92The follow-up Interrogatory 2(e) asked:
“If yes [to] any part of the previous subpart (d)(ii) of this Interrogatory, give the Usual Details and Usual Particulars of any such observation(s).”
93Mr McDonald answered, “Safe to walk on”.
94Those answers aligned with the evidence of Ms Judd and Ms Callahan that the steps were assessed as safe for use during the periodic visual inspections.
95I find that at all material times, Charles Stewart & Company was of the view that the steps had some unevenness but were solid, stable, reasonably safe to use and did not require repair.
Has Mr McKenzie established what happened in the incident?
96As I have said, there was no dispute that Mr McKenzie fell and injured his left ankle at the house on 27 September 2019. The circumstances of the fall, and whether the fall was related to the state of the steps was in issue.
97Counsel for Charles Stewart & Company submitted that Mr McKenzie had not satisfied his onus to establish that the incident occurred in the manner he alleged.[47]
[47]Defendant’s outline of closing submissions dated 15 December 2023, paragraph [3]
98Counsel for Mr McKenzie submitted:[48]
“… The precise time and mechanism of the fall is not heavily in dispute. Whether the Plaintiff slipped or tripped, the nature, extent and consequences of his injury are clear.”
[48]Plaintiff’s outline of closing submissions dated 15 December 2023, paragraph [3]
99That submission does not reflect what was in issue between the parties. There was a dispute as to:
(a) the time and mechanism of Mr McKenzie’s fall;
(b) whether Mr McKenzie slipped, tripped, or fell in some other way;
(c) the nature, extent, and consequences of Mr McKenzie’s injury.
100The incident occurred more than four years prior to the hearing.
101Whatever happened in the incident, it took mere seconds.
102Necessarily, Mr McKenzie has had to recount and discuss the circumstances of the fall many times since 2019.
103The evidence to be evaluated to determine whether Mr McKenzie has satisfied his onus as to the circumstances of the fall comprises primarily:
(a) the uncontested evidence regarding the state of the steps;
(b) Mr McKenzie’s oral evidence;
(c) the near contemporaneous accounts of the incident reportedly given by Mr McKenzie to the staff at the Colac Hospital, and to his GP;
(d) the near contemporaneous account of the incident recorded in the two videos.
104Charles Stewart & Company made a sustained attack on Mr McKenzie’s credibility and reliability. This centred upon alleged differences in the accounts given by Mr McKenzie regarding the circumstances of the incident.
105Counsel for Charles Stewart & Company submitted that Mr McKenzie’s evidence as to the circumstances of the fall was unreliable and unbelievable. It was submitted that the Court ought not to be satisfied that the incident occurred in the manner alleged by Mr McKenzie and that such a finding was dispositive of the proceeding.
106Counsel for Mr McKenzie submitted that he was a straightforward witness who did not prevaricate or exaggerate. It was submitted that the accounts given as to the happening of the incident were only slightly different. Counsel submitted that the challenge to Mr McKenzie’s reliability was “both illusory and irrelevant”. Counsel submitted that the videos gave the “best description of what happened on the subject night”, and “wherever he has referred to slipping and/or tripping they are in fact the one event”.[49] For the reasons discussed below, I do not accept those submissions.
[49]Plaintiff’s outline of closing submissions dated 15 December 2023, paragraph [18]
Mr McKenzie’s oral evidence
107I understood from Mr McKenzie’s evidence that the set up at the rear of the house on the day of the incident was similar to that shown in the following photograph taken by Charles Stewart & Company at its inspection on 18 July 2019:
108On the day of the incident, Mr McKenzie said that he left home to go to work at about 5.00am. He returned home at about 4.00pm.
109He said that he fell asleep on the couch, still wearing his work boots. He said that he woke up later and listened to some music.
110At about dusk, he went into the kitchen to make a cup of coffee and put pies in the microwave. As he did so, he noticed his washing hanging on the line in the garden. He decided to bring it in.
111Mr McKenzie went out of the patio door at the back of the house, took the washing off the line and put it into a washing basket. He then walked back towards the house carrying the washing basket in front of him using two hands.
112Mr McKenzie was unsure whether the porch light over the veranda was on or off but said that there was sufficient light to see where he was going.[50]
[50]T120
113When Mr McKenzie reached the veranda at the rear of the house, he said he did not step onto it. He said that because Wheelie Bins were on the veranda, he walked on the fake turf area next to the veranda until he was level with the patio door.[51]
[51]T107
114Mr McKenzie said that when he was level with the patio door, he turned to face the patio door. He was then directly facing the patio door and positioned so that when he stepped up with his left foot, his left foot stepped onto the crack in the bottom step. Mr McKenzie said that he did not take the steps at an angle, but square on.
115In his evidence-in-chief, Mr McKenzie explained what happened: [52]
[52]T93-94
Q:“Where did you put your foot and which foot and what happened when your foot landed on wherever it landed on the step, in your own words?---
A:I put my foot on top of the step, where the crack – the uneven jointed crack was.
Q:Which foot was that Mr McKenzie? Left foot or right foot?---
A:My left foot.
Q:And as your left foot landed on the crack of the step, what happened?---
A:It slipped back and slipped down and I fell forward.
…
Q:And what happened as you fell?---
A:As I fell forward, I twisted my ankle and I heard a cracking noise of my – what I was told was fractures, where the bone pulls away from the tendons in my ankle.
Q:The basket itself, what happened to the basket as you began to fall?---
A:It didn’t break my fall. It went down and I came forward into the actual door.
Q:Had a handrail been present on the steps, what, if any, use would that handrail have been to you?---[53]
…
A:As I dropped the washing basket, I had nothing to grab hold of. If there had have been a handrail, I probably would have tried to grab hold of it to save my fall and stop my twisting of my ankle.”
[53]Counsel for Charles Stewart & Company objected to the last question extracted above, but the objection was not upheld
116Later in his evidence-in-chief, Mr McKenzie further elaborated on the circumstances of the incident:[54]
Q:“When you put your foot on the step on the night you fell, where did your foot hit, in relation to this photograph? Or strike or land; whatever?---
A:It actually hit on the uneven pitch of that actual crack itself. It landed on that which caused me to – unsafe.”
[54]T98
117Towards the end of that answer, Mr McKenzie gestured with his hand to mimic a sideways roll of his foot, just before saying “unsafe”.
118His evidence then continued:[55]
[55]T98-99, T104, T112
Q:“That’s my next question. What was the effect of your balance when your foot or your boot landed on that particular section of the step?---
A:I believe that actually caused the accident.
Q:I think you demonstrated to the jury before that your boot moved slightly backwards and under the step?---
A:My foot was on top of that pitched crack and it slipped sideways and off it and then down. But my momentum came forward, still on the concrete, and basically my full body weight crunched and popped all the tendons as I came forward into the doorway, dropping the basket.
…
Q:So you’ve got a forward momentum, carrying the basket in front of you, you land on the step, your foot goes down under the edge of the step?---
A:Yeah, but it didn’t touch the ground.
…
Q:And before when you described to the members of the jury your fall, your foot landed on the cracked area?---
A:Stepped onto the crack and it gave way.
Q:It slipped back slightly in that crack area?---
A:It slipped – my foot was on the crack, the raised part. My foot then wobbled and twisted, it slipped off it and then down the step, but because I was going forward with the washing basket, I landed up here (indicating).
Q:So your foot never hit the ground surface?---
A:It never hit the ground, no.
…
Q:On the night in question, as you were entering the house, what care were you taking as you placed your foot on the concrete surface?---
A:I was carrying the washing basket along the grass – the fake turf, because that was a flatter surface, and I turned to walk up the steps and, basically, as I put my foot on that raised crack there, it slipped and then the accident occurred from this unsafe and inadequately constructed steps.
Q:To the best of your belief, save for the unsafe and inadequately constructed steps, was there any other cause for you falling in the manner in which you fell?---
A:No, there wasn’t.”
119Later in his evidence-in-chief, Mr McKenzie marked a photograph of the bottom step with an X to represent the front edge of his boot when he placed it on the step, and drew the position of the outside of the front edge of his boot:[56]
Exhibit P1
[56]T115 and Exhibit P1. This photograph was taken by Dr Short on 8 February 2023. The white device is a computer mouse-sized light reading device.
120During his evidence, Mr McKenzie was shown the following photograph (taken by Dr Short on 8 February 2023)[57] and was asked whether his placement of his own left foot was consistent with what was shown. Mr McKenzie said that he thought he put his foot “a little” further onto the step than was shown in the photograph.[58]
Exhibit P21
[57]Exhibit P21
[58]T230
121Mr McKenzie is over six foot tall. His work boots were US size 14 – that is, larger than the shoe shown in the photograph above, Exhibit P21.
122It was not controversial that the incident happened quickly and unexpectedly.
123I find that it is unlikely that Mr McKenzie was paying particular attention to precisely how far forward he was placing his left foot on the step, or where along the width of the step he was placing his left foot prior to the happening of the incident.
124If the front of Mr McKenzie’s boot was on the step in the approximate location he marked on the photograph above (Exhibit P1), somewhat more of the lateral side of the sole of his boot was on the step than the medial side. This was because the face of the step was uneven as can be seen in the photograph below.[59]
[59] CB 197
125Further, the sole of the medial side of Mr McKenzie’s left boot would have been on the slightly higher part of the step. Yet, Mr McKenzie said his foot twisted inwards (eversion) and back off the step.
126Mr Dooley’s evidence was that Mr McKenzie suffered an inversion injury to his left ankle. That evidence was unchallenged. In other words, Mr McKenzie’s injury was consistent with his foot twisting outwards towards the little toe, not inwards towards the big toe.
127There was no expert engineering, biomechanical or ergonomic evidence as to the mechanism of the fall or the defects in the step which might have caused Mr McKenzie’s foot to twist inwards and back off the step as he alleged.
128I find that there were several unsatisfactory aspects to Mr McKenzie’s oral evidence regarding the circumstances relevant to the happening of the incident.
129First, Mr McKenzie’s account of his path of travel from the washing line to the patio door with a turn in line with the patio door, and the crack in the step, does not accord with normal human behaviour. The steps were wide. Having passed alongside the veranda, the bottom step was of sufficient width to enable Mr McKenzie to step onto it in an oblique manner to reach the patio door. Common experience suggests that it is more likely that a person would take an oblique path across the steps, which was the shortest route.
130Second, knowing the condition of the steps and the location of the crack, and being able to see what he was doing, it does not accord with common sense that Mr McKenzie would deliberately choose to take a less direct route and step directly on the crack.
131Third, it was different to the mechanism of injury recorded in other evidence tendered by Mr McKenzie; Dr David Kennedy recorded in November 2021 that Mr McKenzie “tripped onto a step and cracked concrete”[60]; Mr Miller recorded in November 2022 that Mr McKenzie “tripped on a concrete step”.[61]
[60]CB 111
[61]CB 119
132Fourth, there were also some other unsatisfactory aspects to Mr McKenzie’s oral evidence. For instance:
(a) Mr McKenzie gave inconsistent times for the happening of the incident.[62] At other times, Mr McKenzie was non-responsive to questions about the time of the incident;[63]
(b) It took several questions for Mr McKenzie to accept that he was keen to get some medical attention as soon as possible after the incident;[64]
(c) Mr McKenzie was not willing to provide an approximate estimate of how long the taxi took to get to him;[65]
(d) Mr McKenzie was non-responsive when asked questions about the mobility he displayed in the videos of 19 October 2019;[66]
(e) The videos were played to Mr McKenzie and the Court several times, but Mr McKenzie did not accept that he said in the short video “No, and I bloody clipped here”. He responded by repeating that he had no recollection of re-enacting his fall for his brother. This was in circumstances where the parties subsequently agreed a transcript of the videos that noted Mr McKenzie said those words;[67]
(f) Mr McKenzie was asked whether in the video re-enactment he “lined up” square with the crack in the bottom step, indicating the path travelled in the incident. Mr McKenzie was non-responsive, saying “I don’t recall participating in a re-enactment and I only seen this video now for the second time in this court”.[68]
[62]8.15pm in his Answers to Interrogatories, Exhibit D5, and 6.15pm in his oral evidence – T216
[63]Both parties agreed that the incident occurred after sunset. Mr McKenzie contended it was dusk, and Charles Stewart & Company submitted it was nighttime
[64]T218
[65]T219
[66]T244
[67]T246-T247
[68]T248
133I formed the view that there were occasions where Mr McKenzie answered as he did as he perceived that a responsive answer to the question would not assist his case.
134It appeared to me that aspects of Mr McKenzie’s evidence were reconstructed.
135Mr McKenzie also gave inconsistent evidence about how much of his foot landed on the step. During re-examination, he was asked to describe, by reference to the sole of his work boot, where his boot contacted the step. Mr McKenzie described a diagonal line extending from above the second chevron on the medial side of his left boot down to the second chevron on the lateral side. When he was subsequently asked to draw that line on the sole of the boot, Mr McKenzie drew the line going down to the third chevron on the lateral side.[69] That is, with more of his foot landing on the step than he previously described.[70]
[69]T337-339
[70]As Mr McKenzie said he stepped up square, not on an oblique angle, the angle of the line represented Mr McKenzie’s approximation of the difference in the top surface of the step on either side of the crack. During closing submissions, counsel for Mr McKenzie accepted there was a difference between the angle of that line and the surface of the step; T709-710
The near contemporaneous accounts of the fall reportedly given by Mr McKenzie
136Charles Stewart & Company’s primary attack on the reliability of Mr McKenzie’s account of the happening of the incident centred upon an alleged disconformity between the account Mr McKenzie gave in his oral evidence and the more contemporaneous accounts given by Mr McKenzie.
137The records of Colac Hospital in respect of Mr McKenzie’s attendance on 27 September 2019 included notations as to the circumstances of Mr McKenzie’s fall. There was also an account given to Mr McKenzie’s GP on 3 October 2019, and an account recorded by Mr McKenzie’s brother in two short videos on 19 October 2019.
138I make four overarching observations about the accounts noted in the hospital records and the GP clinical notes:
(a) there was no dispute that Mr McKenzie suffered a soft-tissue injury of significance in the incident. He was in pain when he attended the hospital, and was prescribed strong analgesia, some of which disagreed with him;
(b) such records necessarily contain only a limited description of the circumstances of a fall, sufficient for medical assessment and treatment;
(c) the notes are a nurse or doctor’s interpretation of what was said by a patient. They are not the notes of the patient;
(d) contemporaneous, or near contemporaneous, documents can provide valuable evidence unaffected by the passage of time or attempts at recollection of facts by persons with an interest in the outcome of litigation.[71] If such documents are prepared by a person with no reason to misstate those facts, they can be a “safer repository of reliable fact”.[72]
[71]Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, per Jagot J at paragraph [1247]
[72]Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160, per Kenneth Martin J, at paragraph [157]
139I bear the above matters steadily in mind when considering the alleged inconsistencies between the accounts given of the circumstances of Mr McKenzie’s fall in the medical records with the account given by Mr McKenzie in his oral evidence.
140In summary, the relevant accounts recorded in the Colac Hospital records on 27 September 2019 were:
(a) At 21:28 to triage nurse – “Fell over step at home”;[73]
(b) At 21:52 to nurse – “Was walking outside to get the washing off the line, tripped on a concrete step and foot twisted”;[74]
(c) At 23:08 to doctor – “had few drinks with friends; walking on concrete twisted left foot; ? inversion foot injury”.[75]
[73]CB 1156
[74]CB 1159
[75]CB 1158
141On 3 October 2019, Mr McKenzie’s GP recorded the mechanism of injury as “Accidentally tripped and fell on to his L/lower leg on Friday night”.[76]
[76]CB 765
142Mr McKenzie said he could not recall what he said to the nurses and doctors at the Colac Hospital.[77] He said that the strong narcotics which were administered caused “severe memory loss”.[78]
[77]T235
[78]T127
143Mr McKenzie agreed that tripping was different to the account he had given to the jury regarding the incident.[79] Mr McKenzie accepted that an explanation that he tripped was not a descriptor which conformed with his oral evidence of the circumstances of the incident. I pause to note, that admission was contrary to the submissions made by counsel on his behalf.
[79]T235-236
144Mr McKenzie was asked whether it was possible that he might have told a triage nurse that he tripped on a concrete step. He did not accept that was possible.[80]
[80]T235
145An explanation for Mr McKenzie refusing to agree that it was possible he had given that account was that he perceived that doing so would not assist his case. Another explanation is that whatever his level of pain and how it affected him, Mr McKenzie could not now conceive he would have given that account, as his current recollection is different.
146In circumstances where Mr McKenzie said he did not remember what he said at the hospital, and where he believed his thinking at that time was affected by reason of strong analgesia, he was not in a position to deny the possibility that he gave an account of tripping whilst being treated at the Colac Hospital.
147Likewise, Mr McKenzie said he could not recall what he had told his GP on 3 October 2019. Yet, Mr McKenzie was unwilling to accept that a possible explanation for her notation as to the circumstances of the fall was that it was the history he had given to her.[81]
[81]T241
148The videos taken by Mr McKenzie’s brother on 19 October 2019 (about three weeks after the incident) contained an account from Mr McKenzie as to the circumstances of his fall. As I have said, the videos were tendered by agreement between the parties.
149Counsel for Mr McKenzie submitted the videos were a re-enactment. Counsel for Charles Stewart & Company effectively submitted they contained prior inconsistent statements. Neither party addressed the issues that arose under the Evidence Act 2008 from the agreed tender.
150Mr McKenzie said that he had no recollection of his brother taking the videos.[82]
[82]T242
151During cross-examination, Mr McKenzie was asked whether he would agree, that on 19 October 2019, his recollection as to the circumstances of the incident was fresh. Mr McKenzie twice responded to this question by saying that he could not remember the video being taken.[83] That is, he gave non-responsive answers to the questions. He then said that he would not agree with the proposition, and he was “under medication”.[84]
[83]T243
[84]T244; I understood Mr McKenzie was referring to 19 October 2019 as opposed to while giving evidence
152Mr McKenzie agreed that he appeared to be “pretty coherent” in the videos.[85]
[85]T244
153This evidence from Mr McKenzie was given in circumstances where his Senior Counsel opened the videos to the jury on the basis that they contained a “reconstruction” as to what had occurred within three weeks of the incident.[86]
[86]T26
154I have watched the videos again with the aid of the agreed transcript. I have been careful to avoid parsing the transcript.
155I am not persuaded that in the videos, Mr McKenzie was describing the incident occurring by means of his foot stepping onto but slipping and/or twisting back off the bottom step.
156In the videos, I find Mr McKenzie described and demonstrated his foot failing to step up onto the bottom step and clipping it, thereby causing his fall. I find the account Mr McKenzie gave and demonstrated in the videos is more consistent with him tripping or mis-stepping. I am fortified in my conclusion that Mr McKenzie’s account of the incident in the videos is different to his oral evidence by the fact that Mr McKenzie was unwilling to accept the content of the videos during his oral evidence.
157I find that the nurses and doctor at the Colac Hospital recorded their understanding of the mechanism of injury that Mr McKenzie conveyed to them. I find that the recorded accounts that “fell over step at home”; “was walking outside to get the washing off the line, tripped on a concrete step and foot twisted” and “had few drinks with friends, walking on concrete twisted left foot” are each inconsistent with the account given by Mr McKenzie in his oral evidence.
158I further find that it is more likely than not that on 3 October 2019, Mr McKenzie told his GP that he had tripped on a step in the incident. I find that account is also inconsistent with Mr McKenzie’s oral evidence.
Conclusion
159I am required to determine whether Mr McKenzie has satisfied the onus he carries to prove his case on the balance of probabilities.
160When proof of a fact is required, the Court must feel an actual persuasion of the occurrence or existence of that fact before it can be found. That is not a state of mind independent of the nature and consequences of the fact to be proven.[87]
[87]Warner v Hung, in the matter of Bellpac Pty Limited (Receivers and Managers Appointed) (In Liquidation) (No 2) [2011] FCA 1123 at paragraph [48]
161I have been assisted by the following passage in the dissenting speech of Lord Pearce in Onassis v Vergottis:[88]
“Credibility involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly, and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness, and motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process and the in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
[88][1968] 2 Lloyd’s Rep 403 at 431
162Senior Counsel for Mr McKenzie submitted that the defendant did not “directly or frankly put” to Mr McKenzie or his witnesses that that fall did not occur as he said it did.[89] During closing submissions, Senior Counsel submitted that it was not a submission the Court “could accept”, and that it was “just not available on the evidence”.[90] I do not accept those submissions.
[89]T707
[90]T708
163Given my findings above, I am not persuaded that the incident occurred in the manner alleged by Mr McKenzie in his oral evidence. That is, I am not satisfied that Mr McKenzie placed his foot onto the bottom step at the point of the crack, and his foot twisted and/or slipped back off the step. I find that it is just as likely that Mr McKenzie simply mis-stepped or tripped whilst using the steps.
164I will deal with the effect of these findings when I consider issues of causation below.
Other oral evidence relevant to liability
165Before turning to the remaining issues, I will consider the other oral evidence relevant to liability.
Alan McKenzie senior
166Alan McKenzie senior, Mr McKenzie’s father, is a retired police officer. He is 87 years of age. He was accustomed to using a walking stick because of certain health problems and was also in the habit of using steps “side-on”.
167Mr McKenzie senior and his wife were regular visitors to the house whilst Mr McKenzie lived there. Initially they visited approximately weekly helping clear the outside area.[91] The frequency of visits then reduced.
[91]T313
168Mr McKenzie senior recalled that his son told him to be careful of the step.[92]
[92]T314
169Mr McKenzie senior said that he noticed a crack in the bottom step at the rear of the house. Mr McKenzie senior used the steps on many occasions.
170Mr McKenzie senior did not give evidence of having a “near miss” at any time whilst using the steps.
171Mr McKenzie senior was not cross-examined.
172I accept his evidence.
Lorraine McKenzie
173Lorraine McKenzie is Mr McKenzie’s mother.
174Mrs McKenzie gave evidence to similar effect to that of her husband. She recalled that the patio door was the only entrance because there was no key to the front door.[93]
[93]The plaintiff did not give evidence to that effect. That evidence was also inconsistent with the evidence of Ms Sharon Judd and Ms Kaylene Callahan, who described entering the property using the front door.
175Mrs McKenzie remembered Mr McKenzie warning her to be careful of the steps.
176Mrs McKenzie said she approached the steps with care.
177As with Mr McKenzie senior, Mrs McKenzie did not give any evidence of having a “near miss” at any time whilst using the steps. She noted there was no handrail and said she would have used one if it had been there.
178Mrs McKenzie was not cross-examined.
179I accept her evidence.
Alan McKenzie junior
180Alan McKenzie junior is Mr McKenzie’s son. He is a disability support worker.
181Mr McKenzie currently lives with his son, having moved in with him in early 2023.
182Between March 2017 and September 2019, Mr McKenzie junior visited his father at the house once or twice a week. He noticed the uneven and cracked steps at the rear of the house.
183Mr McKenzie junior recalled that his father or sister told him to watch his step on the steps.[94]
[94]T441
184Mr McKenzie junior was not challenged on the above evidence.
185I accept his evidence.
Murray McKenzie
186Murray McKenzie is a secondary school teacher, and Mr McKenzie’s younger brother. He first visited the house on 19 October 2019, after the happening of the incident, to help Mr McKenzie move out. On that day, he took the two videos in which Mr McKenzie described the incident.
187Murray McKenzie liaised with Charles Stewart & Company regarding Mr McKenzie’s departure from the house. Those communications included an email dated 24 October 2019 to Sharon Judd, which attached five photographs of the steps taken in October 2019.[95]
[95]CB 596, Exhibit P20
188Murray McKenzie was a talkative witness who needed to be reminded to simply answer the questions he was asked.
189During cross-examination, Murray McKenzie agreed that he traversed the steps about 30 times on 19 October 2019. He said that he took care whilst using them because of the crack, height variation and the absence of a handrail.
190Murray McKenzie initially did not agree that he videoed his brother to obtain a record of what had happened whilst the incident was reasonably fresh in his brother’s mind. Curiously, he said:[96]
“I filmed my brother because I wanted to find out what had happened, right, and I also wanted to find out, you know, why that step hadn’t properly been fixed before.”
[96]T383
191When further pressed as to the reason, Murray McKenzie said:[97]
“There was probably several reasons. One may have been for a future medical - if a doctor had asked how he fell, there’s a video. Roll up and shown the doctor, ‘This is how Alan said he fell’; right?”
[97]T384
192Ultimately, Murray McKenzie agreed that he made the recording to have a reasonably fresh account from his brother as to what happened in the incident.[98] That account was that he had “tripped on that defective step”.[99]
[98]T385
[99]T386; T389
193I found Murray McKenzie’s evidence somewhat unsatisfactory. He appeared to want to advocate for his brother.
Dr Andrew Short, human biomechanical engineer
194On 9 February 2023, Dr Short attended the house, together with Mr McKenzie, his solicitor and junior counsel. Dr Short took photographs and some measurements of the steps. Some of those photographs were tendered.[100]
[100]Exhibit P21
195Dr Short was called to give evidence, and cross-examination commenced but was not completed. It became apparent during his evidence, and on a voir dire, that Dr Short had changed his opinion about the circumstances of Mr McKenzie’s fall in the days prior to giving evidence. He had not provided a supplementary report in accordance with his obligation in the Expert Witness Code of Conduct. Further, Dr Short had spoken to Mr McKenzie about at least one aspect of his evidence in circumstances where there was an order for witnesses to be out of Court.
196The parties agreed that most of Dr Short’s evidence was inadmissible and only very limited parts were admissible.
197The relevant admissible aspects of Dr Short’s evidence were that he noted a crack in the bottom step and measured a height disparity of about 25 millimetres between the right side of the crack and the left side.[101]
[101]T405
198Dr Short opined that the two “slabs” of concrete were laid at different times, and one had possibly subsided, or they may have been made that way. Dr Short agreed with Dr John Culvenor, engineer, that “a handrail is required but is not present”.[102]
[102]T418
Kaylene Callahan
199Ms Callahan currently works in the accounts payable department of Charles Stewart & Company.
200Between 2008 and late 2017, she was the property manager with responsibility for the house.
201Ms Callahan visited the house on several occasions while she managed it between 2008 and 2017. She managed the house when Mr McKenzie first rented it.
202She gave evidence as to the systems in place for inspecting properties and for dealing with maintenance. In short, maintenance requests would be directed to the relevant person managing that property.[103] Ms Callahan said that her assistant at the time, Ms Sharon Judd, was responsible for maintenance of the properties in her portfolio. Her assistant undertook the routine inspections, and Ms Callahan performed the other inspections.
[103]T532-534
203Charles Stewart & Company’s internal system used for recording such matters was known as RP Office.[104] Ms Callahan was not sure when Charles Stewart & Company had moved from hard copy files to the RP Office system but believed that was the system in use when Mr McKenzie was a tenant at the house.[105]
[104]T535
[105]T536-537
204Ms Callahan could not recall receiving any maintenance requests or complaints from Mr McKenzie in relation to the house.[106]
[106]T537
205Ms Callahan said that the normal fee for managing a property was 8.8%. Regardless of the size of fee, Charles Stewart & Company provided the same service.[107]
[107]T539
206During cross-examination, Ms Callahan was shown various close-up photographs of the steps. Ms Callahan said that she did not recall observing any fault line, crack, ragged edging, or colour differential in the step during her property inspections.[108] She said that she would have walked in and out of the house on several occasions in the course of her inspections, but never observed any issue with the steps.[109] To her observation, the condition of the back steps was “good”.[110] She believed they were safe to use, and did not observe any defect.
[108]T539-540
[109]T541-542 and T559
[110]T560
207Ms Callahan said that she was performing visual inspections and was not an expert. If she had noticed something that she thought was serious, she would have remembered.[111] Ms Callahan accepted that if she had noted that there was a height differential on the surface of the step of up to an inch, she would have reported it.[112]
[111]T541
[112]T544
208Ms Callahan was asked many questions in cross-examination regarding her training in conducting property inspections. She said she was trained by her predecessor.[113] An aspect of her training was to be aware of safety to tenants. She said if a safety issue was noted, the owner would be notified.
[113]T547
209On the various occasions that Ms Callahan attended the house to perform inspections between 2008 and 2017, she did not observe any issue with the steps. If she had noted a hazard, she would have reported it.
210Ms Callahan agreed that if she had been given an instruction to inspect concrete surfaces on steps for cracks or unevenness or other defects, that would have been an instruction that would have been relevant to the performance of her work.[114] She also agreed that if she had been instructed to look for defects of that kind, she would have done so.[115] Further, that in looking, she would have seen a defect such as a one-inch lip.[116]
[114]T564
[115]T565
[116]T565
211Ms Callahan agreed that if her training had entailed looking for the type of defects that counsel had shown her in the various close-up photographs of the steps, she would have followed her training, noted the defects and acted upon them.[117] She agreed with the proposition that such training would have assisted in the execution of her duties.[118]
[117]T567
[118]T572
212Ms Callahan said that she was not trained to determine whether steps should have rails installed.[119] She agreed with the proposition that such training would have assisted in the execution of her duties.[120]
[119]T570
[120]T572
213I found Ms Callahan to be a straightforward witness and accept her evidence.
Sharon Judd
214Ms Judd was employed by Charles Stewart & Company between 2010 and 2020. Initially she was an assistant property manager to Ms Callahan. She became a property manager in early 2018, and the house was part of her portfolio.
215Since the events relevant to this proceeding occurred, Ms Judd suffered injury in a fall and suffers from memory difficulties, other mental processing difficulties, and headaches.
216Ms Judd found the process of cross-examination difficult. She found some of cross-examining counsel’s questions confusing. She seemed willing to agree with propositions put to her in cross-examination, even when she was not sure.
217For instance, at one point during cross-examination, Ms Judd agreed that when she went out the patio door of the house, she did not step on the bottom step and always turned to her left to take a photograph of the veranda area from the corner of the house nearest the washing line. Contrary to that evidence were reports Ms Judd authored which included photographs taken from the back of the house depicting the side of the house furthest from the washing line. That is, contemporaneous evidence tending to contradict Ms Judd’s concession.[121]
[121]CB 524, CB 534, CB 535 and CB 540
218Ms Judd had completed a property management course and received on-the-job training from Ms Callahan.[122]
[122]T616
219Unsurprisingly, Ms Judd did not have any specific recollection of the various inspections of the house she undertook between June 2017 and 2019.
220She said that her usual practice was to enter the house through the front door, and work her way through the house, photographing each room as she went. She would be looking at the condition of the house, seeing if there was any damage, or if anything needed fixing.[123] There was no specific timeframe for undertaking an inspection – it depended on what was needed. Ms Judd said that she would ensure she had ample time to complete an inspection.
[123]T594
221Ms Judd said that she did not observe any issue with the steps during her inspections. She did not have any difficulty using the steps.[124] Ms Judd’s view was that the steps were fine. They were solid to her inspection.[125] Ms Judd said the steps appeared to be safe to her and she assessed them to the best of her ability.[126] Ms Judd acknowledged that she is not an expert,[127] or a “professional cementer”.[128]
[124]T594; T615
[125]T611; T615
[126]T638-639
[127]T616
[128]T636
222Ms Judd was shown various close-up photographs of the steps by Senior Counsel. When shown photographs of the crack in the bottom step, Ms Judd agreed it was a significant crack in the surface of the step.[129] She agreed it was possible that if someone put their foot on it, they could slip or trip or fall because of it. She said that she did not see “the damage that you’ve showed me today”.[130]
[129]T618
[130]T639
223Ms Judd agreed during cross-examination that if Ms Callahan was not given training “in the detection of a fault such as this”, she also probably did not receive such training.[131]
[131]T621; T626
Carla Edwards
224Ms Edwards was employed by Charles Stewart & Company between about 2018 and 2023 as a receptionist.
225Ms Edwards had contact with Mr McKenzie when he attended Charles Stewart & Company’s office to pay his rent in cash.
226Ms Edwards said that if a tenant made a maintenance request to her, the procedure she adopted depended upon the identity of the property manager for that property. If the property manager was Ms Judd, she would either ask her to come to the reception desk or take notes and pass them on.
227Ms Edwards could not recall receiving any maintenance requests from Mr McKenzie. She said that she dealt with hundreds of maintenance requests over her five years with Charles Stewart & Company. She conceded that it was possible that Mr McKenzie made a maintenance request that she was unable to recollect.[132]
[132]T654
228I accept Ms Edwards’ evidence.
Leanne Storer
229Ms Storer was working part time for Charles Stewart & Company as an administration officer/property manager assistant for most of the period between March 2017 and October 2019. Between February and October 2018, she was an administration assistant.
230Part of her role was to man Charles Stewart & Company’s reception area. Ms Storer had contact with Mr McKenzie when he attended Charles Stewart & Company’s office to pay his rent in cash.
231Ms Storer said that if a tenant raised a maintenance request for a property that Sharon Judd managed, she would either ask Ms Judd to come to reception and talk to the tenant or note the issue and pass it on to Ms Judd.
232Ms Storer could not recall receiving a maintenance request from Mr McKenzie. However, she acknowledged that he could have made a request that she could not now recall.
233I accept Ms Storer’s evidence.
Witnesses not called
234Counsel for Mr McKenzie submitted that there was an unexplained failure by Charles Stewart & Company to call Anthony McDonald as a witness.
235Mr McDonald was employed by Charles Stewart & Company as the rental manager/livestock auctioneer at the times relevant to this proceeding. He was the deponent of Charles Stewart & Company’s Answers to Plaintiff’s Interrogatories sworn on 22 September 2023.[133] Mr McDonald was the manager of Ms Callahan and Ms Judd.
[133] CB 72
236Counsel for Mr McKenzie submitted, in the broad, that the Court ought to infer that Mr McDonald’s evidence “would have been adverse to … [Charles Stewart & Company] … the Court can more readily accept the evidence called in support of … [Mr McKenzie’s] case”.[134] That submission misstates the rule in Jones v Dunkel[135] and its application.
[134]Plaintiff’s outline closing submissions dated 15 December 2023, paragraph [31]
[135](1959) 101 CLR 298
237The rule in Jones v Dunkel[136] was restated in Kuhl v Zurich Financial Services Australia Ltd,[137] as follows:
“63.The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. That is particularly so where it is the party which is the uncalled witness. The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn. …
64.The rule in Jones v Dunkel permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party. … .”
[emphasis added]
[136]Ibid
[137](2011) 243 CLR 361, paragraphs [63]-[64]
238I am unable to determine on the evidence whether Mr McDonald ever attended or inspected the house. I infer that, given his position with Charles Stewart & Company, he would have been able to cast light on Charles Stewart & Company’s systems and procedures for inspections.
239Counsel for Mr McKenzie did not identify the inferences said to be unfavourable to Charles Stewart & Company which the Court ought to draw with greater confidence because of the failure to call Mr McDonald.
240In light of the unexplained failure to call Mr McDonald, I draw the inference that his evidence would not have assisted Charles Stewart & Company’s case. However, I am unable to identify the inferences adverse to Charles Stewart & Company’s case that I could or should more readily draw, save with regard to Charles Stewart & Company’s systems and procedure for inspections.
241Charles Stewart & Company did not make any submission in relation to Mr McKenzie’s failure to call his daughter or her boyfriend to give evidence (both of whom had lived at the house).
242I will now turn to consider the remaining issues for determination.
What duty of care did Charles Stewart & Company owe Mr McKenzie?
243Charles Stewart & Company admitted it was an occupier of the house as defined by s14A of the Wrongs Act 1958 (“the Act”).[138]
[138]Defendant’s outline closing submissions dated 15 December 2023, paragraph [30]
244Part IIA of the Act operates to modify the common law duty owed, setting out matters to be considered in determining the scope of the duty and whether it was discharged in a particular case.[139]
[139]Victorian WorkCover Authority v Jones Lang Lasalle (Vic) Pty Limited [2012] VSC 412, paragraph [5]
245The duty Charles Stewart & Company owed to Mr McKenzie at common law, as informed by the Act, was to take such care as was reasonable in all the circumstances of the case to ensure that Mr McKenzie was not injured by reason of the state of the premises or of things done or omitted to be done in relation thereto.
246An occupier is required to take reasonable care to avoid foreseeable risk of injury.
Was a risk of harm foreseeable?
247On one view, every set of steps presents a foreseeable risk of harm. As was said in Wilkinson v Law Courts Limited:[140]
“… Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: ‘persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety’. … .”
[140][2001] NSWCA 196, paragraph [32]
248The question of foreseeability must be determined objectively and on a prospective basis.
249Counsel for Mr McKenzie submitted that the steps presented a not insignificant risk of harm which Charles Stewart & Company knew or ought to have known because of the various features of the steps identified above.
250Counsel for Charles Stewart & Company submitted that the steps were unremarkable and, in the circumstances, ought not to be considered a “risk”.
251I find that during Mr McKenzie’s tenancy of the house, the steps had the various features identified above.
252I am satisfied that the features of the steps presented a risk of harm, which was not insignificant, that a person going up or down the steps might fall due to the uneven surface of the steps. I find the risk of harm was foreseeable in the sense that it was not far-fetched or fanciful.
253I am further satisfied that, as is the case with all steps, there was a foreseeable risk that a person using the steps might trip, slip, or otherwise lose their footing whilst using the steps. The absence of a handrail adjacent to any part of the steps added to the foreseeable risk of harm, in the sense that there was no handrail to use, or to grab in the event of mishap.
Did Charles Stewart & Company breach its duty of care?
254The Second Further Amended Statement of Claim dated 1 December 2023 contained 20 particulars of negligence/breach of duty. However, the case run by Mr McKenzie at trial[141] was that Charles Stewart & Company failed to exercise reasonable care by not:
(a) inspecting the steps to assess their condition, “levelness”, whether they were safe to walk on, and whether they constituted a tripping hazard; and/or
(b) training their staff to detect abnormalities in steps, including surface irregularities, and defects; and/or
(c) noticing that the steps were in a significant state of disrepair; and/or
(d) training their staff to assess whether a handrail was required for steps; and/or
(e) inspecting the steps to assess whether a handrail was required; and/or
(f) having a policy, procedure, practice, or training for inspecting steps.
[141]Gould and Birbeck and Bacon v The Mount Oxide Mines Limited (In Liquidation) (1916) 22 CLR 490 at 517, per Isaacs and Rich JJ; Banque Commerciale SA, En liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 296-297, per Dawson J
255The case put in respect of each of the above breaches was that, if Charles Stewart & Company had not breached their duty in that way, it would have:
(a) noticed the state of the steps and/or the absence of a handrail;
(b) a reasonable person in Charles Stewart & Company’s position would have notified the owner about the state of the steps and/or the absence of a handrail;
(c) the steps would have been repaired and/or a handrail installed.
256On that basis, it was submitted Mr McKenzie would have avoided injury.
257I infer from the history of maintenance and repair of the house, that if Charles Stewart & Company had identified, and then notified the owner, that the steps reasonably required repair and/or the addition of a handrail or handhold, the owner would more likely than not have authorised those works to be performed.[142]
[142]During the trial, some suggestion was made that Charles Stewart & Company ought to have undertaken repairs of the steps and/or installation of a handrail pursuant to its authority to undertake urgent repairs up to $1,800. That was not pursued.
258Mr McKenzie did not allege that Charles Stewart & Company knew or ought to have known of any building regulation requirements for the steps or that Charles Stewart & Company knew or ought to have known that the condition of the steps was in breach of any building regulation.[143]
[143]T51-T52
259There was evidence that two expert engineers formed the view that a handrail was required for the steps. However, that evidence is of no relevance to the issues I must determine as Mr McKenzie did not allege that Charles Stewart & Company knew or ought to have known of any building regulation requirements regarding the need for a handrail or that the absence of a handrail was in breach of any building regulation.[144]
[144]T51-T52
260Mr McKenzie made no criticism of the frequency with which Charles Stewart & Company conducted its inspections of the house.
261Sections 48, 49 and 56 of the Act provide as follows:
“48 General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a) the probability that the harm would occur if care were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
369Murray McKenzie was not challenged regarding his “before” and “after” evidence, but I treat it with some circumspection given my findings about Murray McKenzie’s adoption of the advocacy role for his brother.
Alan McKenzie junior
370Mr McKenzie junior confirmed that his father “hobbles”, struggles with steps, and takes daily over-the-counter analgesia. They no longer go scuba diving together as Mr McKenzie has discomfort if he walks more than a kilometre or so.[181]
[181]T441-442
371In his evidence-in-chief, Mr McKenzie junior was asked about Mr McKenzie’s claim for gratuitous attendant care. He said as follows:
Q: “Do you do anything for him around the house on a day-to-day basis?---
A:Well, as it’s my house, I do all the cleaning, washing. I do the gardening, cooking, all that sort of stuff, mowing the lawn.
Q:Does your dad help with the cooking or the dishes or the washing?---
A:He does his own washing, but I usually cook, clean, do all the stuff around the house.
Q:Has he ever tried to do any cooking or cleaning around the house, that you’re aware of?---
AYeah, he tries.
Q:Have you noticed if he’s able to do it or why do you do it instead of him?---
A:I don’t know. I just do it.”
HER HONOUR:
Q:“You don’t know?”
A:“Well, I just do it. It’s a part of everyday life: you cook, you clean, you get up, you go to work.
…
Q:When you say he tries to do these things, is he successful in trying to do the vacuuming, cleaning, mopping, whatever else, around the house?---
A:It’s my house, so – I don’t know. I like it done my way. He might like it done the other way. I don’t know. I just do it.
Q:Is there anything that you have to do for your dad now on account of his disability or inability to move around and function?---
A:Not really, no.
…
Q:In terms of your time each week, how much time – how much of your time is spent in assisting your dad with things around the house or things that he may need?---
A:An hour daily, between cooking, cleaning, mowing the lawn, regular garden work.”
372Mr McKenzie junior was not cross-examined.
373Mr McKenzie junior struck me as a straightforward witness, and I accept his evidence. However, it does not support the contention that he provides any domestic assistance to his father solely because of Mr McKenzie’s injuries.
Medical evidence
374Mr McKenzie tendered a report of Dr David Kennedy, sports and industrial physician, dated 30 November 2021,[182] and two reports of Mr Russell Miller, orthopaedic surgeon, dated 28 November 2022 and 27 June 2023. Mr Miller gave evidence and was cross-examined.
[182]CB 110
375Charles Stewart & Company tendered a report of Mr Michael Dooley, orthopaedic surgeon, dated 22 August 2023. Mr Dooley gave evidence and was cross-examined.
376Aside from the notes of the Colac Hospital dated 27 and 28 September 2019, and clinical records of Mr McKenzie’s GP dated 3 October 2019, no reports or notes were tendered from any treating medical practitioner. The reports of the various scans of Mr McKenzie’s left ankle were not tendered.
Dr David Kennedy, sports and industrial physician
377Dr Kennedy “remotely assessed” Mr McKenzie on 27 July 2021 to perform an impairment assessment for the purposes of the Act.
378Dr Kennedy noted that Mr McKenzie reported developing problems in his left hip region within six months of the incident because of his altered gait pattern. He reported that he was working but had significant discomfort in his left hip joint and left ankle joint.
379Dr Kennedy was provided with reports of the imaging of Mr McKenzie’s left ankle undertaken in September and October 2019.
380Dr Kennedy was unable to examine Mr McKenzie in person as he was conducting a remote assessment. But, within those confines, he noted a 50 per cent reduction in the active range of motion on flexion and extension of the ankle joint and inversion and eversion at the subtalar and midtarsal joints. He noted some slight swelling in the left ankle joint.
381Dr Kennedy also noted a restricted range of motion in Mr McKenzie’s left hip compared to the right.
382Dr Kennedy opined:[183]
“Mr McKenzie has sustained significant injuries to the left ankle and hindfoot, with subsequent radiological investigations at the Geelong Hospital revealing multiple fractures in the … [left] ankle joint, requiring immobilisation in a moon boot for almost 10 weeks, following which Mr McKenzie had extensive physiotherapy and rehabilitation until the COVID lockdown. The injuries sustained to the left ankle and hindfoot and the secondary problems that have developed in the left hip joint as a result of his altered gait pattern are consistent with the description of the incident that occurred on or about 27 September 2019 and there are no obvious discrepancies between his current symptoms on presentation and the clinical findings on examination.”
[183]CB 113
383Dr Kennedy recommended a continuing exercise regime for Mr McKenzie’s left ankle and hip. He noted that Mr McKenzie was at increased risk of developing post-traumatic osteoarthritic change in his left ankle.
Mr Russell Miller, orthopaedic surgeon
384Mr Miller examined Mr McKenzie in person on 22 November 2022 for the purpose of his first report. He did not re-examine him thereafter.
385Mr Miller is an experienced orthopaedic surgeon, whose surgical speciality includes “hips, knees and shoulders” in private practice and more general “trauma-based” surgery in his public practice at The Alfred Hospital. During his oral evidence, Mr Miller acknowledged that he had only performed approximately 20 ankle fusion surgeries in his career, but he said he was “entirely comfortable” with the opinions he gave.[184]
[184]T202
386Mr Miller was provided with the reports of the left ankle CT scan dated 28 September 2019, left ankle ultrasound dated 1 October 2019, and left ankle MRI scan dated 7 October 2019.
387Mr McKenzie reported to Mr Miller that his left leg was his major problem. He was reported to describe his symptoms as follows:[185]
“… He has ache, discomfort and pain in the left ankle and foot. The ‘ankle feels sore and swollen’.
He has developed a more diffused pain involving the buttocks, groin, thigh and knee, with associated numbness and tingling in the left leg. These symptoms create difficulty with kneeling, squatting, stairs, uneven ground and footwear, causing him to walk with a limp. He felt the symptoms have no pattern towards improvement and are slowly deteriorating, causing sleep disturbance and difficulty with activities of daily living, including difficulties in putting on his shoes.”
[185]CB 119
388Mr Miller noted that Mr McKenzie was taking a range of over-the-counter analgesia for his leg pain. He did not have ongoing physiotherapy or hydrotherapy. Mr McKenzie reported that he had been reviewed by Mr Graeme Brown, orthopaedic surgeon, in relation to his left leg but there were no plans for surgery.
389Mr Miller performed a physical examination. He noted Mr McKenzie walked with a marked limp on the left leg. He found diffuse swelling and tenderness in the left ankle, a reduced range of movement, and irritability during ankle and subtalar movement. In his oral evidence, Mr Miller described Mr McKenzie’s range of movement as two thirds of the normal range.[186]
[186]T176
390Mr Miller noted diffuse tenderness in the left hip, with a reduced range of motion and mild irritability during hip movement.
391Mr Miller also noted a small effusion in Mr McKenzie’s left knee, reduced flexion and patellofemoral joint crepitus and pain on patellar compression.
392Following his assessment of Mr McKenzie, Mr Miller opined that it was appropriate “on clinical and medico legal grounds” that further imaging be undertaken, in light of Mr McKenzie’s “severe protracted symptoms”. Mr Miller requested an MRI scan of Mr McKenzie’s left ankle and foot, and an x-ray of his left hip and left knee.
393Mr Miller opined that Mr McKenzie suffered a fracture of the fibula and tear of the lateral ligament in his left ankle in the incident. He noted Mr McKenzie had developed tenosynovitis affecting the peroneal and tibialis tendons. During his oral evidence, Mr Miller said that Mr McKenzie suffered a soft-tissue injury to his left ankle.[187] He said it was a Grade 3 ankle sprain with possible involvement of the joint.[188]
[187]T178
[188]T196
394Mr Miller further opined that there was likely early degenerative disease in Mr McKenzie’s left hip and knee. He was of the view that Mr McKenzie suffered –
“… an adverse mental state reaction with problems with anxiety and depression and probable development of a chronic regional pain syndrome which will complicate the assessment and management of his condition. This requires additional assessment by a psychiatrist.”[189]
[189]CB 122
395Mr Miller described the relationship between the incident and Mr McKenzie’s left hip/knee condition as complex and multifactorial, given Mr McKenzie’s pre-existing disease, significant physical work over a protracted period, the left ankle injury, chronic gait disturbance and subsequent development of a Chronic Regional Pain Syndrome. In his oral evidence, Mr Miller elaborated upon this. He described how the body compensates for injury by trying to make adjacent joints do more work. He said:[190]
“I hasten to add that that’s a minor consideration in this case but it’s a consideration.”
[190]T179
396Following Mr Miller’s recommendations, further imaging was undertaken.
397On 24 May 2023, Mr McKenzie underwent an MRI scan of his left ankle. He also underwent an x-ray of his left hip and left knee the same day. Mr Miller reviewed the images of those investigations in preparation for his further report dated 27 June 2023.
398In his supplementary report dated 27 June 2023, Mr Miller opined that the left ankle MRI revealed:[191]
“… significant arthritis and chondro pathology in the posterior aspect of the ankle joint and significant arthritis in the medial aspect of the sub-talar joint. There is also evidence of previous injury to the bifurcate ligament and lateral ligament.”
[191]CB 125
399The results of the left ankle MRI scan led Mr Miller to conclude that Mr McKenzie had suffered a severe injury to his left ankle and foot in the incident. He opined that there was “now” evidence of arthritic disease in the ankle joint and subtalar joint. He was of the view that there was a likelihood that Mr McKenzie would ultimately come to an ankle or subtalar fusion. Mr Miller opined this was likely to occur within a ten-year timeframe. In his oral evidence, Mr Miller said that hind foot fusion would likely have only a fair result and would leave Mr McKenzie with limited function.
400During cross-examination, Mr Miller agreed that a plain x-ray is an important examination for assessing arthritic change and that he did not have an x-ray of Mr McKenzie’s left ankle.[192] However, Mr Miller said that an x-ray would not add to what was revealed by the MRI scan.
[192]T201
401Mr Miller opined as follows regarding the x-ray of Mr McKenzie’s left hip:[193]
“This revealed severe arthritic disease with sub-chondral sclerosis and minimal joint space. There is also some flattening of the femoral head. …”
[193]CB 125
402Mr Miller said that there was a likelihood that Mr McKenzie would require a left hip replacement within five years. In his oral evidence, Mr Miller described hip replacement, where it works, as a very successful procedure, which leads to a pretty good result and good function.[194]
[194]T181
403In his supplementary report, Mr Miller opined that the total cost of each proposed surgical procedure (hip replacement and ankle fusion) would be in the order of $30,000.
404During his evidence-in-chief, Mr Miller noted that the initial MRI scan of Mr McKenzie’s left ankle did not report much in the way of arthritis,[195] whereas the May 2023 MRI demonstrated arthritis. He opined that arthritis had either developed or progressed since the incident. During re-examination, Mr Miller said that on the available evidence, there was no arthritis in the ankle and subtalar joint in 2019.[196]
[195]T175
[196]T208
405The additional imaging caused Mr Miller to form the view that the contribution of any Chronic Regional Pain Syndrome was diminished, as Mr McKenzie’s reported pain was satisfactorily explained by the arthritis demonstrated.[197]
[197]T179
406Mr Miller said that Mr Dooley’s examination findings of Mr McKenzie’s left ankle and left hip were not in conflict with his own findings.[198] He acknowledged that Mr Dooley was at a slight advantage as his examination was undertaken on 21 August 2023 whereas Mr Miller examined Mr McKenzie on 22 November 2022.[199]
[198]T189-190
[199]T194
407In re-examination, Mr Miller indicated that if degeneration continued in Mr McKenzie’s body functions as the years progressed, it was likely that his requirement for domestic assistance would increase.[200]
[200]T208
Mr Michael Dooley, orthopaedic surgeon
408Mr Dooley examined Mr McKenzie in person on 21 August 2023.
409Mr McKenzie complained of constant pain in his left ankle. He said he struggled to walk more than 400 metres, struggled to perform his work duties, and required assistance from his son with domestic activities. He said he had difficulty putting on his socks and shoes. Ankle pain interfered with his sleep.
410On examination, Mr Dooley noted Mr McKenzie had a limp that related to his left hip. He walked and stood with the left lower limb externally rotated. The left ankle was swollen. Mr McKenzie was reluctant to move the ankle actively. Mr Dooley found a good range of motion, passively.[201]
[201]CB 130
411On examination of Mr McKenzie’s left hip, Mr Dooley noted a reduced range of motion and some pain in the groin when stressing the hip.
412Mr Dooley was provided with reports of imaging of Mr McKenzie’s left ankle in September and October 2019, and the reports of imaging of Mr McKenzie’s left ankle and hip in May 2023.
413Mr Dooley opined that Mr McKenzie sustained a significant soft-tissue injury to his left ankle in the incident, namely a Grade III sprain. It was most likely from an inversion mechanism. The tearing of ligaments involved small fragments or ossicles of bone being avulsed.
414Mr Dooley opined that most patients progressively recover from a Grade III ankle sprain over a six-to-eight-week period. Over time, most patients note intermittent ankle pain, and some will note difficulty negotiating uneven or sloping ground. A small percentage note a tendency for the ankle to give way.
415Based primarily on his finding that there was a good range of motion passively, Mr Dooley said that “there were no clinical signs of significant advanced osteoarthritic change”.[202]
[202]CB 130
416Mr Dooley agreed during cross-examination that with underlying arthritis, surgery could be “in the offing” if the patient complaints of pain, clinical examination findings and plain x-ray findings correlate.[203] The indication would be severe, consistent pain that can be correlated with the clinical findings and x-rays and weight-bearing x-rays showing no joint space, bone on bone, arthritic change.[204]
[203]T473
[204]T474
417Mr Dooley noted the onset of left groin and thigh pain around six months after the incident, relating to osteoarthritis in the left hip. He opined that the degenerative osteoarthritis was constitutional, and the radiological reports noted it was mild.
418As to the issue of a connection between the onset of left hip symptoms and Mr McKenzie’s left ankle injury, Mr Dooley opined as follows:[205]
“… While I accept that it is possible that Mr McKenzie’s left ankle injury could have played a part in precipitating symptoms in relation to his underlying hip osteoarthritis, I believe that on the balance of probabilities the symptoms developed naturally in this regard. If one is proposing that the left ankle injury and a period of altered gait precipitated symptoms, then overall this would be a minor contribution to the evolution and progression of the underlying hip osteoarthritis. … .”
[205]CB 130
419The stated bases for Mr Dooley’s opinion, were:
(a) that it was not uncommon for patients with constitutional degenerative hip arthritis to present with the spontaneous onset of gradually increasing symptoms in their mid-fifties;[206]
(b) if there was a causative link, he would have expected symptoms to have occurred earlier than six months or so after the incident.[207]
[206]CB 130
[207]CB 132
420Mr Dooley further explained in his oral evidence that after the ankle injury, the likelihood was that Mr McKenzie placed less load on his left leg rather than more.[208]
[208]T455
421Mr Dooley agreed during cross-examination that Mr McKenzie had significant degenerative osteoarthritis in his left hip and some arthritis in his right hip.[209] He also noted that once an osteoarthritic hip becomes painful and deteriorates, it causes constant pain and major disability.[210] Mr Dooley opined that Mr McKenzie was likely to come to a left hip replacement in two years rather than five.
[209]T470
[210]T471
422During cross-examination, Mr Dooley was asked the cost of hip replacement surgery and an ankle fusion. He agreed that a hip replacement would cost in the order of $30,000.[211] He opined that an ankle fusion would be in the order of $20,000, but accepted he could be “out” on that.[212]
[211]T477
[212]T478
Findings relevant to damages
423Neither party made submissions about the report of Dr Kennedy. I find that it is of very limited probative value, given his examination of Mr McKenzie took place in 2021, was conducted remotely, and was solely for the purpose of an impairment assessment. Further, Dr Kennedy is a sports and industrial physician rather than an orthopaedic surgeon.
424Counsel for Mr McKenzie submitted the Court ought to prefer the opinion of Mr Miller over the opinion of Mr Dooley for the following reasons:
(a) Mr Dooley did not commission “contemporaneous radiological imaging”;
(b) Mr Dooley did not offer “any cogent explanation” to reject the opinion of Mr Miller;
(c) Mr Dooley was not prepared to concede what was described by counsel as a “compelling conclusion to be drawn from the evidence in this case” and made “equivocal statements”.
425I will address those matters in turn.
426Mr Miller examined Mr McKenzie on 22 November 2022, and sought further imaging, as the most recent imaging report with which he was then provided was dated 7 October 2019. He sought up-to-date imaging because the imaging he was provided with was more than three years old. Mr Dooley examined Mr McKenzie for medico-legal purposes on 21 August 2023. He was provided with the reports of imaging undertaken in September and October 2019 as well as May 2023. There is no merit in the criticism of Mr Dooley that he did not commission “contemporaneous radiological imaging”.
427Mr Dooley offered what I find to be, cogent reasons for forming different views as to Mr McKenzie’s conditions based upon a consideration of the history with which he was provided, the radiological reports and his clinical findings. Indeed, he had the slight advantage of having conducted the most recent examination of Mr McKenzie.
428Mr Dooley maintained his opinions regarding Mr McKenzie’s conditions during cross-examination. This included his opinion that Mr McKenzie’s left ankle symptoms were not wholly explained by the organic injury. Mr Dooley acknowledged that it was “possible” or a “feasible proposition” that Mr McKenzie’s ankle pain was solely attributable to an organic injury caused in the incident. I find this was measured evidence, which acknowledged other possibilities but explained why such a conclusion was only possible rather than probable in his opinion. There is nothing in that stance which detracts from my assessment of Mr Dooley’s evidence. To the contrary, it enhances it. The so-called “equivocal statements” were not otherwise identified in counsel’s submissions.
Left ankle
429I accept that imaging of Mr McKenzie’s left ankle reveals that he has arthritis. However, advanced arthritic change was noted in the CT scan of his ankle on 28 September 2019.
430I find Mr Miller’s evidence regarding the arthritic change in Mr McKenzie’s left ankle was unsatisfactory.
431First, I note that in his reports, he did not reproduce that part of the report of the CT scan dated 28 September 2019 that referred to advanced arthritic change existing at that time. Given that Mr Miller did not view the actual scan, there could be no question of a difference in interpretation being the reason for that omission.
432Second, Mr Miller referred to the possibility that the arthritis was caused by the incident.[213] That possibility required explanation, given the imaging findings of pre-existing arthritis. An explanation was not offered.
[213]T175
433By contrast, Mr Dooley acknowledged the presence of pre-existing asymptomatic arthritis in Mr McKenzie’s left ankle and accepted that the significant ankle sprain with ligamentous avulsion could have aggravated the underlying osteoarthritis.
434As I have said, there was no dispute Mr McKenzie suffered a significant left ankle sprain in the incident.
435I find that Mr McKenzie’s ankle sprain aggravated the pre-existing asymptomatic degenerative change in his left ankle.
436Mr Miller and Mr Dooley agreed, and I accept, that findings on imaging are simply part of the picture. Diagnosis rests on a clinician evaluating the history, making clinical findings and considering any relevant imaging. Arthritic change on a scan could produce no symptoms, lots of symptoms and everything in between.[214]
[214]T200 and T474-475
437Mr Miller said that his clinical findings were similar to Mr Dooley’s.[215] However, clinically, Mr Dooley opined that he did not find signs of significant or advanced osteoarthritic change.
[215]T189-190
438Finally, there is an issue as to whether Mr McKenzie will likely require a left ankle fusion consequent upon the injury he sustained in the incident.
439Mr Miller’s opinion that Mr McKenzie will likely come to an ankle fusion in approximately ten years is based on his view of the progression of degenerative change in the past and therefore the likely progression in the future, and a correlation between progression of that change and decreased function/increased symptoms.
440I find that Mr Miller has not adequately explained the basis for his opinion that the future progression of the arthritis would more likely than not lead to a fusion in ten years. I make that finding because Mr Miller did not discuss the nature or extent of the advanced degeneration which was reported in the CT scan of Mr McKenzie’s left ankle on 27 September 2019. When that omission is coupled with Mr Miller’s reference to arthritic change being possibly caused by the incident, it causes me to doubt the opinion he gives.
441In other words, Mr Miller has not explained whether or how he accounted for the pre-existing degenerative change when opining on past progression and therefore likely future progression.
442Mr Miller and Mr Dooley agreed that the ‘bar’ for recommendation of an ankle fusion was a high one, given the less reliable outcomes of such surgery.
443Mr Dooley opined that an ankle fusion was unlikely. He had never seen a patient require a fusion of the ankle or hindfoot after a single Grade III ankle sprain. I accept that evidence.
444I am not persuaded that it is probable that Mr McKenzie will require an ankle fusion in approximately ten years. Doing the best I can on the evidence, I find that there is a small possibility of this being required.
445Mr McKenzie had a previously asymptomatic left ankle. He suffered a significant soft-tissue injury in the incident.
446I find that Mr McKenzie experiences ongoing pain in his left ankle. That pain requires regular simple analgesia.
447Mr McKenzie also has some restriction in the range of motion of his left ankle, to about two thirds of normal.
448I accept Mr Dooley’s opinion that Mr McKenzie’s antalgic gait is a function of his externally rotated left hip rather than his ankle injury.
449I accept that Mr McKenzie’s left ankle condition causes him some difficulty walking on uneven ground, and some difficulty negotiating steps.
450Prior to the incident, Mr McKenzie was a keen recreational scuba diver. During the season he would regularly dive for lobster and abalone. He no longer scuba dives as he finds it too difficult to carry heavy equipment to difficult to reach beaches. Mr McKenzie still snorkels and fishes but does so less than before. This is partly due to the left ankle injury, but primarily due to Mr McKenzie’s left hip condition.
451I accept that Mr McKenzie’s ankle injury has some impact on his sleep.
452I am not persuaded that Mr McKenzie’s difficulty with putting on his socks and shoes or cutting his toenails is related to his left ankle injury. Those difficulties with reaching and bending appear to be more likely due to Mr McKenzie’s hip problem.
Left hip
453Mr Miller was of the view that it was likely that Mr McKenzie’s altered gait played a part in the development of symptoms in Mr McKenzie’s previously asymptomatic left hip although he described that as a “minor consideration” in this case.[216] Whereas Mr Dooley was of the view that such a relationship was only “possible”.
[216]T179
454I prefer Mr Dooley’s opinion on this issue.
455First, because I found Mr Dooley’s evidence to be more measured generally.
456Second, Mr Dooley’s explanation that a period of immobility, and less use of the left leg was not likely to aggravate pre-existing change in the left hip makes more sense. That is, that it was more likely that a condition in the right hip would have been aggravated in those circumstances by more pressure being put on the right leg.
457Third, the fact that Mr McKenzie’s left hip symptoms came on five or six months after the incident is equally explained by spontaneous onset in a man in his 50s who had previously been very active in sport, particularly football.
458I am not persuaded that it is more likely than not that Mr McKenzie’s left ankle condition was a cause of the onset of symptoms in Mr McKenzie’s left hip.
459In my view, the appropriate award of general damages for Mr McKenzie’s left ankle injury is $170,000.
460I make no award for the future cost of left hip surgery.
461As I have found that there is a small possibility that Mr McKenzie may come to a left ankle fusion in ten years’ time, I make some allowance for the future cost of that surgery. Doing the best I can, I allow a discounted figure of $5,000 to account for the risk.
462I make a “Farlow” allowance of $20,000 against the risk of future unemployment, time off by reason of deterioration in the left ankle, and the small risk of fusion surgery.
Gratuitous attendant care
463Mr McKenzie made a substantial claim for future gratuitous attendant care.
464Section 28IA(1) of the Act provides:
“28IA Limitation on damages for gratuitous attendant care
(1) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that-
(a)there is (or was) a reasonable need for the services to be provided; and
(b) the need has arisen (or arose) solely because of the injury to which the damages relate; and
(c)the services would not be (or would not have been) provided to the claimant but for the injury.”
465Mr McKenzie was living alone at the time of the incident and continued to live alone until about January 2023 when he moved in with his son. He said that his son provided gratuitous care in the order of seven hours a week.
466Counsel for Mr McKenzie submitted that there was uncontested evidence from Mr Miller that Mr McKenzie required gratuitous care. In his first report, Mr Miller noted that Mr McKenzie had difficulty with domestic activities and opined that he “will have a reduced capacity for heavy domestic and gardening activities as a result of the described left leg injury”.[217]
[217]CB 123
467I must, however, consider the whole of the evidence.
468I am not persuaded that Mr McKenzie has received or requires gratuitous attendant care services from his son that meet the requirements of s28IA of the Act.
469First, I prefer the evidence of Mr McKenzie junior that he performs the domestic tasks because it is his house, rather than due to any incapacity his father has.
470Second, I am not satisfied that the need for any such care that could be established has arisen solely because of Mr McKenzie’s ankle injury as distinct from his left hip condition.
471Third, Mr McKenzie performed domestic activities after the incident whilst living alone. He continued to work full time and perform overtime. He is required to, and does, lift boxes weighing up to 37-42 kilograms at work from time to time. [218] That level of activity is not consistent with a present need for daily domestic assistance with cooking, washing and household chores.
[218]T306
472I am not persuaded that Mr McKenzie will require future gratuitous care for his left ankle injury.
473If it had been necessary for me to assess damages, the total assessment would have been:
(a) General damages $170,000.00
(b) Past special damages $12,507.47 (as agreed)
(c) Future medical and like expenses $5,000.00
(d) Future economic loss - “Farlow” $20,000.00
__________
Total $207,507.47
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474The total figure would be reduced by 70 per cent for contributory negligence. Had it been necessary to award damages, the total award would have been $62,252.24.
Conclusion
475The proceeding is dismissed.
476I will hear the parties on the appropriate orders and costs.
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