O'Rourke v Johnston

[2009] NSWDC 317

CITATION:	O'Rourke v Johnston [2009] NSWDC 317
HEARING DATE(S):	6, 7, 8, 9 and 12 October 2009
JUDGMENT DATE:	28 October 2009
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendants 2. The plaintiff is to pay the defendants’ costs 3. Judgment for the cross-defendants 4. The cross-claimants are to pay the costs of the respective cross-defendants 5. Leave to apply in relation to costs orders, within 7 days
CATCHWORDS:	TORTS - claim by a tenant against his landlords and their managing agent for injuries received on the rented premises - whether a duty of care arose - whether any duty of care was breached - causation - contributory negligence - DAMAGES - non-economic loss - past and future medical expenses - economic loss - domestic care and assistance - other costs and expenses
LEGISLATION CITED:	Civil Liability Act 2002 Residential Tenancies Act 1987
CASES CITED:	Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114 Lever v Goldsby [1964-5] NSWR 1833 Northern Sandblasting Pty Ltd v Harris [1997} HCA 39; (1997) 188 CLR 313 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34 Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19
PARTIES:	Patrick James O’Rourke (Plaintiff) Craig Johnston (First Defendant) Melodie Vesna Johnston (Second Defendant) Dowling Real Estate (Wallsend) Pty Ltd (Third Defendant)
FILE NUMBER(S):	2986/08
COUNSEL:	Mr G Walsh (Plaintiff) Mr J Stewart (First and Second Defendants) Mr N Chen (Third Defendant)
SOLICITORS:	CMC Lawyers (Plaintiff) HWL Ebsworths (First and Second Defendants) Torquil Murray (Third Defendant)

JUDGMENT
The proceedings and the issues

1. The plaintiff claims damages in respect of injuries received on 13 August 2007 when he fell one night from a raised patio at premises in which he was living as a tenant with his wife and daughter. The first and second defendants were the owners of the premises and the plaintiff’s landlords. The third defendant company was their managing agent.

2. The plaintiff contends that his fall occurred under circumstances in which there was complete darkness. It was alleged that an overhead fluorescent light that had previously illuminated the unfenced patio at night had ceased to function, thus creating a hazard and a danger, with a foreseeable risk of the plaintiff, as tenant, falling from the patio at night.

3. The plaintiff sued in contract, in tort and for breach of statutory duty. The claim for breach of statutory duty was not pressed. Nor did the plaintiff maintain his case that the landlords should have erected a balustrade around the patio, or that the managing agent should have recommended that they do so before letting the premises. Because the patio was less than one metre high, there was no obligation to fence it, either by way of a handrail, a balustrade or otherwise. At the point of the plaintiff’s fall, the patio was in fact only some 69 cm high. The plaintiff’s case, as finally pressed, was that his fall was caused by the failure of the defendants to promptly attend to the non-functioning fluorescent light notwithstanding various complaints to the third defendant, as the managing agent.

4. The defendants denied liability. They contend that neither the plaintiff nor his wife made any complaint about the patio light; but even if it were to be accepted that there had been any complaints, they owed no duty of care to the plaintiff. Alternatively, the defendants deny any breach of contract or breach of duty, either by way of negligence or otherwise. They also say that there was no causal relationship between any failure to attend to the non-functioning light and the plaintiff’s fall. Finally, the defendants allege contributory negligence by the plaintiff.

5. The defendants brought cross-claims. The landlords say that if the plaintiff succeeds against them, it can only be by reason of a breach of duty by their managing agent, for which they seek to be indemnified. The managing agent says that if found liable to the plaintiff, it is entitled to a contractual indemnity from the landlords as provided for by a term in the management agreement. Alternatively, the defendants seek an apportionment of liability between them.

6. The principal issues for determination are:

· Was there a defect in the patio light that requiring repair?
· Did the plaintiff and his wife complain about the patio light?
· The state of visibility on the patio at the time of the plaintiff’s fall.
· Did the defendants breach any duty or other obligation that caused the plaintiff’s accident?
· Whether the plaintiff failed to take reasonable care for his own safety.

The plaintiff’s case

7. The plaintiff and his wife, Jennifer O’Rourke, rented a house owned by Melodie and Craig Johnston at 8 Spencer Street, Rankin Park, pursuant to a Residential Tenancy Agreement entered into on 19 May 2006 (Exhibit D). The O’Rourkes were introduced to the tenancy by Mr Robert English, a real estate agent in the employ of Dowling Real Estate (Wallsend) Pty Ltd, which had entered into a Management Agency Agreement with the Johnstons (Exhibit K).

8. When the O’Rourkes moved into the house with their daughter it was in a state of significant disrepair and in a filthy condition, so much so that Mrs O’Rourke burst into tears. An arrangement was entered into whereby a week’s rent was credited in lieu of an undertaking by Mr English that the premises would be professionally cleaned. The O’Rourkes say that they constantly complained to Mr English about the condition of the premises and items requiring attention and repair. They say Mr English was unresponsive, evasive and dilatory and things only got done after repeated requests and long delays. Nevertheless, a number of tradesmen attended at the premises over the course of the tenancy and various items were repaired, including the kitchen stove, the hot water service and the front blinds. They say, however, that the kitchen window drapes remained in a poor condition throughout, and all attempts to have them repaired or replaced during the course of the tenancy were unsuccessful. That the circumstances surrounding the condition of the premises caused distress to the O’Rourkes, and that their dealings with Dowling Real Estate were strained, is unfortunate but they had no relevance to the substantive issues in this dispute and were only admitted into evidence as going to the credit of Mr English. I will come to questions of credit in due course.

9. On one side of the house there was an external, elevated, quadrilateral, concrete patio leading off the dining room to the side yard and barbecue area (see Exhibits 5 and 6). The patio was some 385cm long and varied in width from 102cm at the dining room door end to 239cm at the other end where there was a set of 3 steps leading down into the garden. The patio was 69cm high. The outside edges of the patio were unfenced, either by way of a balustrade or railing. There was a fluorescent light in the soffit of the eaves overhanging the patio that was functioning at the commencement of the tenancy. There was a similar fluorescent light in the soffit further down the eaves towards the back of the house that seems not to have been functioning for the duration of the tenancy.

10. The plaintiff was in the habit of going out onto the patio to smoke, particularly in the evenings and he was, therefore, familiar with the patio and its features.

11. Over a year later, on Friday 8 June 2007 there were some violent electrical storms in the area. The adjacent creek flooded, with water reaching the lower step, causing two bins to be washed away. The O’Rourkes say that in the evening three lights failed to operate, one in the dining room, one in the hall (see Exhibit 6) and the external patio light. The plaintiff said they went out. Mrs O’Rourke said they failed to come back on after a power failure at about 8.00pm. The two internal lights were standard socket lights with conventional globes. The patio light, as already indicated, was a fluorescent light. The nearby fluorescent light in the kitchen was unaffected.

12. The plaintiff said that the next day, with a view to changing the bulbs, he stood on a chair and inspected the two internal lights. His evidence-in-chief as to precisely what he did was laconic and inexplicit. He said he observed “burn marks” and what he described as “metal on metal”, the metal base of the bulbs having broken off the glass bowls and “fused to the sockets”. Greater detail emerged in cross-examination, when he conceded that he tried to remove the globes, but the glass bulbs snapped out of their sockets as he tried to rotate them. The burn marks were inside the sockets and the metal was fused together. As a result, he considered that there was a significant electrical problem with those two lights and made no further attempt to do anything to them. His case is that the lights fused. This assertion, however, was never positively established as a fact.

13. So far as the external patio light is concerned, however, he never inspected that light, but merely tried the light switch and when the light did not go on he assumed it had fused like the other two lights. There was, therefore, no evidence that the patio light, or the switch, was defective or requiring any form of repair.

14. The O’Rourkes gave evidence that they made a number of complaints to Dowling Real Estate about the non-functioning lights prior to the plaintiff’s fall from the patio.

15. The first such complaint is alleged to have been made by Mrs O’Rourke on the Monday or Tuesday following the power failure, when she telephoned Mr English and told him that two inside lights were not working and one outside light was not working. She also told him that two bins had been washed away. He replied that he was very busy and due to the storms there were people with more urgent problems, and that it may take some time for him to get something done. Ironically, the two bins were replaced within a week. Mr English had no recollection of any complaint by Mrs O’Rourke about the lights, including a complaint after the storms in June 2007. He did say, however, that he would not have arranged to replace the missing bins and not organise an electrician for the lights, if there had been such a complaint. He therefore assumed there was no complaint about the lights at that time.

16. A second complaint is alleged to have been made by the plaintiff in late June 2007, when he rang Dowling Real Estate and spoke to Mr English and asked what progress had been made in relation to the lights. He said he was forceful in his complaint, putting his point across, saying words to the following effect: “We’ve waited long enough - it’s not good enough.” But Mr English merely said he would get back to him. Mr English, however, was positive that Mr O’Rourke had never complained about the lights. He said something along the lines of, “It’s possible I received one phone call from Mrs O’Rourke that I didn’t act on. But it is not possible that I would have missed more than one.”

17. A third complaint is alleged to have been made by the plaintiff in mid July 2007, when he rang Dowling Real Estate and because Mr English was out was put through to another employee, Ms Probert, to whom he made a further similar complaint. Ms Probert gave evidence in which she said she did not recall such a conversation. She said she only remembered ever having a conversation with Mrs O’Rourke, about arrears in rent and on another occasion about plumbing problems, but Mrs O’Rourke had never complained about any problem with lights.

18. A fourth complaint is alleged to have been made by Mrs O’Rourke in early August 2007, when she went to the offices of Dowling Real Estate. Her evidence was that after waiting half an hour for Mr English to return, she saw him in his office and said things like, “We are tired of being in the dark. Can we get the lights fixed? We are eating in the dark.” She then said, “Can we get the patio light fixed? It’s really dark outside.” She says Mr English replied, “I haven’t had any correspondence from the owner.” Mr English denied this conversation. He said that if there was a problem like that which put a tenant at risk he would have done something about it. It was put to him that in saying this he had acknowledged that the patio was dangerous and he replied, “I look like I shot myself in the foot.”

19. The O’Rourkes say they had to put up with the absence of lighting in the dining room, where they ate their evening meal in the dark, and in the hallway and on the patio, for over two months. However, they made no attempt to fix the inside lights themselves, or to check the fluorescent tube in the patio light. Nor did they seek to call the electrician designated by the agent for urgent repairs directly, and simply waited for Mr English to do something. The absence of a patio light, however, did not deter the plaintiff from using it, and he was in the habit of going out on the patio to smoke two or three times every evening. There was a front porch, which was lit, where he could also have gone to smoke had he wished, but it was his preference to smoke on the side patio, notwithstanding he knew the patio was unfenced and dangerous in the absence of a functioning light.

20. This situation apparently continued until 13 August 2007. That evening, the plaintiff came home from work about 5.30pm and proceeded to cook dinner for his family. During the course of doing that, he decided to go out onto the patio to smoke. When he had finished his cigarette he went to flick the butt over the nearby fence, but as he moved forward he stepped off the edge of the patio and fell to the ground below. He was asked by his counsel why he fell and said, “I thought I knew my way around the patio.” In cross-examination it was put to him that he didn’t look where he was putting his feet and he said that he walked towards the edge of the patio to flick his cigarette butt and, that he “wasn’t really thinking about having a look about”.

21. The plaintiff’s case is that it was dark; completely dark. But when asked if he could see his feet he said yes. He also told a doctor that he had been able to see his daughter’s face when she came out onto the patio. He was asked why he didn’t open the kitchen blind, which was adjacent to the point he fell, to let some light out, and gave an unconvincing answer to the effect that the blind was kept closed for privacy reasons. With that blind closed, the light emanating outside from the kitchen was “minimal”, and all you could see was “a glow”.

22. There was no contact with Dowling Real Estate following the plaintiff’s fall until three weeks after the accident, on 4 September 2007, when Mrs O’Rourke went to their offices and met with Mr English and asked for the blinds and the lights to be fixed. Her evidence about her husband’s accident was somewhat diffident. She said she mentioned that he had fallen off the verandah and that the outside light also needed fixing. Mr English expressed his sympathy and said he would contact the owners again, but not to expect a quick response. But the note he recorded in the rent roll log was as follows: “Mrs O’Rourke in to office on other matters, but mentioned in passing that husband had slipped over in BBQ area.”

23. Mr English then arranged for an electrician to attend at the premises. On 6 September 2007 he sent a fax authorising electrical repairs to the agency’s preferred tradesman, Mr Moon of C & J Moon Electrical Services (Exhibit 8). The terms of that authorisation assumed some importance:

“Job description:
(1) Attend and replace faulty light fittings as needed
(2) Check operation of smoke alarm
(3) Check operation of oven door (new, not closing fully)

24. Mr Moon, the electrician, attended at the premises the next day. Mrs O’Rourke was present. The work performed involved the following (Exhibit 9):

- Replaced two batten holders and five globes for lights.
- Replaced two battery type smoke detectors.
- Replaced tube and starter for fluorescent light in kitchen.
- Repairs to stove oven door hinges.

25. The curious thing is, however, that the electrician did nothing to the patio light. According to Mrs O’Rourke, after Mr Moon had fixed the two inside lights, she spoke to him about the outside light, but that he said, “It’s not on my job sheet. I’ll have to run it by Bob (English).” And it wasn’t fixed. Indeed he didn’t even look at it. Mr Moon gives a different version. He did not recall being asked to go outside, but said if a tenant asked him to look at a light, he would do so. The instructions from Mr English were to replace faulty light fittings as needed. In fact, in addition to the two internal lights he replaced various other globes, and even replaced the tube and starter for the fluorescent light in the kitchen, which he would only have done that if it wasn’t working.

Was there a defect in the patio light requiring repair?

26. The first issue for determination is whether there was any defect in the patio light requiring repair. There is no direct evidence that there was. The simple fact is that no-one ever looked at the light to see if there was a problem. Not even after Mr Moon’s visit and presumably it never worked for the balance of the tenancy.

27. The plaintiff’s case is that he reasonably assumed the light was fused, like the other two lights, on the night of the storms. It was submitted that I should infer that the patio light was fused. There are a number of difficulties with drawing such an inference. Firstly, it is not the only available inference. There was no expert evidence, for example, that might make the drawing of that inference the only available inference, or even the more probable inference. Second, there was in any event no satisfactory evidence that the two internal lights had fused. There was no expert evidence about the causes of fusing or whether there was anything to support an assumption that what the plaintiff observed was indicative of fusing. The electrician recalled no signs of fusing, and merely replaced the bulbs and the batten holders. Nor was there any evidence as to other factors that might be indicative of fusing, such as what was discovered at the fuse box. Nor was there evidence, for example of what other lights were on the same circuit as the lights that failed.

28. I am not satisfied, therefore, that there ever was a defect in the patio light that required any repair, either by an electrician or otherwise. It is equally likely that all that was required was to replace the fluorescent tube.

29. For these reasons alone, the plaintiff’s case fails.

Did the plaintiff and his wife complain about the patio light?

30. The second issue for determination is whether the plaintiff and his wife complained about the patio light. It was submitted for the defendants that at no time did they regard the non-working fluorescent light on the patio as incommoding or inconveniencing.

31. Counsel for the plaintiff contended, however, that there should be a finding that requests were made to fix the patio light, and that if Dowling Real Estate had promptly responded to any of these complaints, the risk of injury would have been averted. It was submitted that the plaintiff and his wife were witnesses of truth, but that Mr English’s evidence was unreliable, and that he was lacking in credit. Counsel suggested he came to Court to defend his actions and coloured his evidence accordingly. Further, that as a former insurance officer he had a “damage control” approach, as evidenced by his notation in the rent roll log for the meeting of 4 September 2007 with Mrs O’Rourke: “Bob expressed his sympathies but gave NO ADMISSION of any level of liability…”

32. Mr English was less than scrupulous in his completion of the Premises Condition Report (Exhibit E) at the commencement of the tenancy. He also said some strange things in evidence, including the reference to shooting himself in the foot, and that he may have missed one call but would not have missed two. It may also be accepted that there were occasions when things did not happen quickly and that his attention to complaints by tenants was often dilatory. However, I did not perceive him to be a person who would prevaricate in the witness box. Indeed, he had checked the records before doing so to ensure the accuracy of his evidence, and made concessions as appropriate when he had no direct memory of events. I did, however, perceive Mr English as someone who was discerning as to matters of consequence, who did act quickly when situations requiring prompt attention arose.

33. Whatever view one may form as to the credibility of Mr English’s evidence about the alleged complaints by the O’Rourkes, in my view their evidence on this subject was even less convincing. The plaintiff’s evidence about the outside light failing and his subsequent testing of it was implausible. And in my view it is improbable that on the day he went to the house to effect a variety of repairs Mr Moon would have refused to even look at the patio light if in fact Mrs O’Rourke had asked him to fix it. He certainly would not have said it wasn’t on his job sheet because the written instruction he had been given was to fix lights as needed. Mr Moon was a most credible witness, who was straightforward and honest in his answers. His recollection was based on immaculate records. He made concessions as appropriate where he had no direct recollection of relevant events. I am simply unable to accept that he would not have inspected the patio light if asked. I had misgivings, therefore, as to the credit of both Mrs O’Rourke and the plaintiff.

34. Taking into account these misgivings as to the credit of the O’Rourkes and the various other unsatisfactory features of the evidence about the alleged complaints, the way in which it was said the complaints before the accident were made, the lack of any immediate and direct complaint after the plaintiff’s fall, and the absence of any attempt to render the patio light operable for the balance of the tenancy, I prefer the evidence of Mr English and Ms Probert and am not satisfied that the O’Rourkes ever complained about the external patio light at any time prior to the plaintiff’s accident.

35. For these reasons as well, the plaintiff’s case fails.

The state of visibility on the patio at the time of the plaintiff’s fall

36. The next issue for determination is the state of visibility on the patio at the time of the plaintiff’s fall. It was submitted that due to the complete nature of the darkness the plaintiff missed his footing because he was unable to see the edge of the patio. His evidence was, however, that he stepped off the patio because he misjudged where the edge was. His case is that the darkness was virtually complete. In addition to the evidence of the plaintiff and his wife, reliance as to the state of visibility is placed on the opinions of experts called in his case.

37. The experts qualified on the plaintiff’s behalf expressed the opinion, based on observation and the lux illuminance testing carried out, that the state of illuminance on the patio at the time of the plaintiff’s fall was at best a little more than zero. It was submitted that these opinions, which were unchallenged and remained uncontradicted, supported the evidence of the plaintiff and his wife as to the state of total darkness that prevailed at the time of the accident. However, I place no weight on these opinions because of the uncertainty surrounding the conditions under which the testing was carried out and the comparability with the conditions prevailing on the night of the accident. There was, for example, no meteorological evidence about the absence of moonlight. More importantly, the testing proceeded in both cases on the assumption that there was no illumination, ambient or otherwise, emanating onto the patio from inside. The testing was carried out in conditions under which the internal lights, including the kitchen light, were switched off (see for example Mr Fogg’s report at page 8.)

38. The best evidence as to the state of visibility at the time of the fall comes from the O’Rourkes themselves, in particular the plaintiff’s concession that he could see his feet when standing on the patio, and could see his deformed foot when lying on the ground after his fall. I therefore reject the evidence that visibility at the relevant time was virtually zero and I find that more probably than not the light was sufficient for the plaintiff to see the edge of the patio, had he been looking.

Did the defendants breach any duty or other obligation?

39. The plaintiff’s case, as I have indicated, is that his fall was caused by the failure of the defendants to promptly attend to the non-functioning fluorescent light on the patio notwithstanding various complaints made to the third defendant, as the managing agent, as a result of which he misjudged the edge of the patio and fell.

40. The evidence, however, does not support a conclusion that any breach of duty or breach of agreement by the defendants was causally connected with his injuries. This proposition holds good irrespective of the degree of darkness that prevailed at the time of the plaintiff’s fall. I have already found that there was sufficient light to enable the plaintiff to see the edge of the patio, had he been looking. But even if it were to be found that the edge of the patio would not have been visible, assuming he had looked, his claim still fails, for the reasons that follow.

41. The plaintiff had ventured onto this patio to smoke at night, in conditions of darkness, the variability of which were never specified, on over a hundred occasions prior to this fall. On this occasion, under circumstances in which he concedes that he wasn’t thinking about having a look, he stepped off the edge. Accordingly, it cannot be concluded that even if it be assumed the darkness was complete, the result would have been any different if it had been lit.

42. I find, therefore, that there was no breach of duty or of contract on the part of any of the defendants that caused the plaintiff’s injuries.

43. For these reasons as well, the plaintiff’s case fails.

44. But there are further considerations that militate against a finding of liability on the part of the defendants. Because of the views already expressed, I need only refer to some of these further matters in summary. They include the consideration that the plaintiff could have avoided any risk presented by smoking on the front porch. And, if indeed there was a defect in the patio light requiring more than a new fluorescent tube, it was open to the O’Rourke’s to have urgent repairs effected by calling the designated electrician direct, as provided for in the lease agreement, just as Mrs O’Rourke had previously done when she called the plumber, Mr McGovern, direct when the plumbing needed attention.

Contributory negligence

45. It is not necessary to determine the issue of contributory negligence. However, if it were to be considered that the defendants or any of them are liable, I do not think this is a case in which it would be just and equitable to determine that the plaintiff’s damages should be reduced by 100%, with the result that the claim for damages should be defeated: s 5S of the Civil Liability Act 2002. In considering the issue of an appropriate reduction, taking into account the relative culpability of the plaintiff in comparison to that of the defendants, I would assess the required reduction at 90%: Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34; (1985) 59 ALR 529.

The case against the first and second defendants

46. For the reasons I have given, the plaintiff’s case against all the defendants fails. But even if the plaintiff had succeeded against the third defendant, his case against the second and third defendants would still fail, for the following reasons.

47. The case against the second and third defendants was, firstly, that the failure by the landlords to effect repairs to the patio light breached their contractual duty to the plaintiff under the lease. Secondly, it was asserted that as landlords they owed a non-delegable duty of care to the plaintiff. Thirdly, it was contended that they would be vicariously liable to the plaintiff for any breach of duty by the third defendant, as their managing agent.

48. It was submitted for the plaintiff that the failure to repair a non-functioning light on a patio that had no fence or balustrade constituted a breach of Clause 12 of the Residential Tenancy Agreement, which reads:

“The landlord agrees:
12.1 to make sure the residential premises are reasonably clean and fit to live in; and
12.2 to keep the premises in reasonable repair, considering the age of, the amount of rent paid for and
the prospective life of the premises.”

49. For the reasons I have already given, it was not established that even if there had been a breach of this clause, that such a breach was causative of the plaintiff’s injuries.

50. But even if the landlords had been made aware of a non-functioning fluorescent light on the patio, I would not be satisfied that any failure to repair the light by the landlords amounted to a breach of the lease. As submitted by their counsel, the imperative of sub-clause 12.1, which is based on s 25(1) of the Residential Tenancies Act 1987, is directed at cleanliness, and there is no reference to safety. And, a non-functioning fluorescent light would not, in my view, render premises into a state of unreasonable repair. Furthermore, the lease provided a mechanism for urgent repairs at the instance of the tenants, including any fault that caused the premises to be unsafe, for which the landlords agreed to make payment (see Clause 17).

51. The next submission was that the statutory scheme created by the Residential Tenancies Act 1987 was intended to protect the right of tenants to live in premises fit for habitation, with the duty to repair imposed on landlords. The landlords’ duty to the tenants remained personal to them as required by the legislation. The appointment of managing agents “as a conduit” to discharge their obligations did not allow them to “escape” their obligations by “delegating it out”. The contention was, therefore, that the landlords’ obligations were non-delegable:

“It could not have been intended that if as alleged, Dowling did not perform its function as property manager they could wash their hands under principles applying to independent contractors. That construction would defeat the purpose of the scheme.”

52. But it is not the law that a landlord owes a tenant a non-delegable duty of care: Northern Sandblasting Pty Ltd v Harris [1997] HCA 39; (1997) 188 CLR 313. Nor do I see any basis for a non-delegable duty somehow to be imposed upon the landlords in contract.

53. Nor is it the law that in the circumstances of this case that the landlords are vicariously liable for any breach of any duty owed by the managing agent owed to the plaintiff. As was submitted by their counsel, his is not a case where the agent stood in the shoes of the principal: Sweeney v Boylan Nominees Pty Ltd [2006] HCA 19.

The cross claims

54. Having found that none of the defendants is liable to the plaintiff, each of the cross-claims fails.

55. Assuming, however, success on the plaintiff’s part, it would be necessary in the first instance to determine the claim by Dowling Real Estate as the managing agent for contractual indemnity from the landlord defendants. Reliance was placed on Clause 8.1 of the Management Agency Agreement (Exhibit K), which provides:

“The (Landlords) will keep the (Agent) indemnified against all actions, claims and demands brought against, and all costs, losses and liabilities incurred by the (Agent) in the course of or arising from the exercise or performance of the (Agent’s) authorities or duties under this Agreement.”

56. It was submitted for Dowling Real Estate that the ordinary and natural meaning of the words in the clause are such as to entitle it to an indemnity from the landlord defendants in respect of any liability to the plaintiff. In my view, however, Clause 8.1 is indistinguishable from the clause under consideration in Erect Safe Scaffolding (Australia) Pty Limited v Sutton [2008] NSWCA 114 at [6]. In my view, any liability attaching to the managing agent would only arise through its failure to perform its obligations under the Management Agency Agreement, not in the course of or arising from its exercise or performance of its authorities or duties. Accordingly, any such liability would fall outside the operation of the indemnity clause.

57. The claim for contractual indemnity having failed, it is necessary to consider whether the cross-claim against the landlords would also fail on general principles. For the reasons I have already given, if the plaintiff had succeeded, it could only be on the basis of a breach of duty by the managing agent, there having been no breach of contract by the landlords, and no liability on their part either pursuant to a non-delegable or the principle of vicarious liability. In those circumstances, there would be no basis for any contribution on their part to the managing agent.

58. Conversely, for the same reasons, if the landlords were to be held liable under the principle of vicarious liability, they would be entitled to a 100% contribution from the managing agents. If they were to be held liable for breach of a non-delegable duty, or for a breach of the lease, I would assess any contribution required from them to the managing agent at 10%.

59. Here, however, the cross-claims fail because the plaintiff has failed in the substantive claim, and judgment should be entered in favour of the respective cross-defendants. The usual order in those circumstances is that the costs should follow the event: Lever v Goldsby [1964-5] NSWR 1833.

Assessment of damages

60. Notwithstanding the findings I have made on liability I am required to provide an assessment of the damages I would award to the plaintiff in the event of a verdict in his favour. That the plaintiff suffered significant injuries is undoubted. In my view, however, some aspects of the consequences of those injuries were exaggerated.

61. Any damages to be awarded fall to be determined and assessed under the general law as modified by the Civil Liability Act 2002.

62. The plaintiff was born on 13 May 1966 and is now 43 years old. At the time of the accident he was 41. It is not disputed that as a result of his fall he sustained a serious pilon type fracture to the right ankle, involving a comminuted fracture of the lower quarter of the tibia and a transverse fracture of the fibular, involving extension into the articular surface, requiring an open reduction and an internal surgical fixation procedure involving screw-plate fixation. As a result of this injury he was immobile for a significant period and non-weight bearing for some 16 weeks. He was unable to return to work until January 2008, but since then has performed his normal duties as a butcher.

63. I find that he also sustained a rotator cuff soft tissue injury of the right shoulder, and continues to suffer tendonitis with bursitis, which is productive of symptoms of discomfort. That may be so, but having regard to the video surveillance film of the plaintiff at work, it cannot be accepted that there is any restriction of movement or other significant ongoing disability in the shoulder. Nor am I satisfied that there will be a need for future surgery to repair a torn rotator cuff.

64. There was an allegation of an injury to the lumbar spine, but I did not take that to be pressed as something productive of continuing symptoms or disabilities. In any event I am satisfied that it isn’t.

65. The plaintiff also asserts an ongoing psychological condition categorised as an adjustment disorder with depressed mood. He claims that his injuries and their consequences have resulted in reduced motivation and energy levels, an increased consumption of alcohol, and even the use of marijuana to cope with the pain he suffers. It may be accepted that the plaintiff has suffered depression, but I prefer the medical opinion tendered on behalf of the defendants on this issue, specifically that of Dr A White to the effect that the plaintiff does not suffer from any psychiatric disorder as a result of his accident.

66. The main dispute so far as the assessment of damages is concerned relates to the onset of osteoarthritis in the right ankle and the effect that will have on the plaintiff’s future earning capacity and the need for future commercial assistance. There is also a claim that future ankle surgery will be required.

67. The preponderance of the medical evidence supports the plaintiff’s contention that he will suffer from the early onset of osteoarthritis that will seriously impact on his long-term mobility and ability to weight bear. That he has a disability in the ankle was borne out by the video surveillance film which demonstrates that he suffers from a limp which is more marked at the end of a day of prolonged standing and walking.

68. I do not accept, however, that he will ultimately become totally incapacitated for any form of gainful employment, or require major commercial assistance in relation to his domestic situation, or suffer the major interference to his activities of daily living for which he contends.

Out-of-pocket expenses

69. The plaintiff claims past out-of-pocket expenses totalling $7,740.00 (Exhibit M). The arithmetic was agreed. I am satisfied that the claim is reasonable and I would have allowed it.

70. Turning to the future, the plaintiff makes various claims for future medical expenses, as detailed in his Statement of Particulars, consisting of ongoing medication, medical treatment, physiotherapy and travel for medical purposes. In addition he seeks damages for the cost of probable future surgery, orthotics, vocational rehabilitation, occupational therapy, cognitive behavioural therapy, counselling, gym membership and programs such as the “Active Maintenance Program”, and the “Back to Life Programme” at Westmead Hospital.

71. The claim is excessive even if his complaints were to be given full weight, which in my view they should not. There are also elements of duplication. I would make the following allowances in respect of future out-of-pocket expenses:

Removal of the internal fixation devices $ 5,000.00
Orthotics $ 5,000.00
Analgesic medication and anti-inflammatories $ 10,000.00
Additional visits to a general practitioner $ 10,000.00
Orthopaedic treatment $ 10,000.00
Physiotherapy $ 10,000.00
Additional travel $ 5,000.00
Arthrodesis or ankle joint replacement $ 30,000.00 Buffer for miscellaneous expenses $ 15,000.00
Total $100,000.00

Economic loss

72. The plaintiff claims economic loss for the past and for the future. There is no doubt that he has lost earnings by reason of his injuries, and that his future earning capacity is permanently diminished, at least from a physical perspective. The dispute is as to the extent of the loss and diminution.

73. The defendants concede past economic loss for the 20 weeks he was off work at $11,400.00, which exceeds the plaintiff’s claim as detailed in the Statement of Particulars.

74. Taking account of lost superannuation, I would allow a sum of $12,700.00 for past economic loss.

75. The claim particularised in respect of future economic loss amounts to over $200,000.00. This is predicated on the assumption that he will probably cease work at the age of 55, a proposition that I have rejected. In my view the plaintiff has sustained a general diminution in his earning capacity which is unlikely to sound in any actual loss for the next 15 years, but which is to be compensated on the basis of a buffer against him being at a disadvantage on the open labour market. I am satisfied, however, that beyond that period his earning capacity will gradually deteriorate due to the onset of osteoarthritic changes, such that he will not be able to engage in full-time heavy work involving prolonged standing, including work as a butcher. He will not, however, be totally incapacitated, and will retain a significant degree of earning capacity, which I assess at 50%.

76. I am satisfied that the following assumptions about the plaintiff’s future earning capacity accord with his most likely future circumstances but for his injury: he would have worked till the age of 67 in the same or similar employment, at a similar level of base wage: s 13(1) of the Civil Liability Act 2002.

77. The amount of the award of damages for future economic loss that would have been sustained by the plaintiff would in the ordinary course be adjusted by reference to a possibility that the events concerned might have occurred but for his injury: s 13(2) of the Civil Liability Act 2002. There should, therefore, be a 15% reduction for vicissitudes.

78. Having regard to these considerations, I would allow a rounded up amount of $85,000.00 for future economic loss on the following basis:

A buffer for the next 15 years, taking into account a reduction for vicissitudes: $25,000.00.

A 50% loss deferred for 15 years, calculated on the basis of present nett weekly earnings, for the final years of the plaintiff’s working life until retirement at the age of 67, and taking into account a reduction for vicissitudes: $50,000.00.

An allowance for future loss of superannuation: $8,250.00.

Attendant care and other assistance

79. The plaintiff makes a claim for care and assistance in the past and as to the future. In my view the plaintiff does not satisfy the threshold requirement for an award of damages for past domestic assistance.

80. For the future, a buffer is appropriate to compensate the plaintiff for the heavier domestic tasks he would otherwise have undertaken but will be precluded from doing so in later life by reason of the impact of osteoarthritic changes. The award reflects the cost of commercial assistance at present rates. I allow an amount of $10,000.00 for the future.

Equipment and additional requirements

81. In the Statement of Particulars, the plaintiff made a claim for some $26,000.00 for future equipment. In my view the plaintiff is unlikely to require most of the items specified, if any, but I allow a buffer against the need for items to assist him in later life by reason of the impact of osteoarthritic changes.

82. I allow an amount of $5,000.00 for future equipment and aids.

Non-economic loss

83. The final head of damages to be considered and assessed is non-economic loss. Counsel for the plaintiff submitted that the severity of the non-economic loss as a proportion of a most extreme case should be assessed in a range between 30% to 35%.

84. In my assessment the appropriate proportion is 30%. That produces a statutory amount of $108,905.00: s 16(3) of the Civil Liability Act 2002.

Total damages

85. The calculations as to the damages are set out in the Table below. The table sets out the total amounts for each individual head of damages as I would find them, in summary form, together with the total damages assessed.

Table

Heads of Damage	Amount
Past out-of-pocket expenses	$ 7,740.00
Future medical and pharmaceutical expenses	$100,000.00
Past economic loss (including superannuation)	$ 12,700.00
Future economic loss (including superannuation)	$ 85,000.00
Past care	Nil
Future care	$ 10,000.00
Future equipment and aids	$ 5,000.00
Non-economic loss	$108,905.00
Total damages	$329,345.00

Costs

86. Orders for costs are to be made in accordance with r 42.1 and r 42.2 of the UCPR, unless some other order or orders are appropriate. There is nothing before me, at this point, to indicate that some other order is appropriate, but I will reserve leave to either party to apply in that regard.

Disposition

87. There will, therefore, be verdicts for the defendants.

88. I direct the entry of judgment for the defendants against the plaintiff.

89. I direct the entry of judgment for the cross-defendants on the cross-claims.

90. I order the plaintiff to pay the defendant’s costs, on the ordinary basis.

91. I order the cross-claimants to pay the costs of the respective cross-defendants, on the ordinary basis.

92. I give leave to the parties to apply for some other costs order or orders provided any such application is notified to the other party and the court within 7 days, in writing, specifying the order sought.