Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd

[2017] NSWCA 40

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2017] NSWCA 40

Hearing dates:

1 March 2017

Decision date:

10 March 2017

Before:

McColl JA at [1];
Basten JA at [2];
Leeming JA at [69]

Decision:

(1)   If leave to appeal is required, grant leave to appeal from the judgments of Fagan J in matter 2010/411126 (Kent Street) and matter 2011/260408, in relation to the first defendant (AMP Capital).

 

(2)   Dismiss each appeal.

 (3)   Order that the appellant pay the costs of the respondents Kent Street and AMP Capital in this Court.

Catchwords:

APPEAL AND NEW TRIAL – appeal – general principles – right of appeal – direction to file affidavit explaining amount in issue exceeded $100,000 – whether affidavit set out material facts showing that leave to appeal not required – UCPR r 51.22

 

TORTS – negligence – occupier’s liability – causation – purported failure of elevator to stop level with floor – plaintiff injured on stumbling when exiting lift – whether occupier liable for plaintiff’s injuries – whether trial judge erred in dispositive finding rejecting plaintiff’s evidence as to circumstances of injury – whether error in failure to consider alternative inferential reasoning

  TORTS – negligence – occupier’s liability – scope of duty of care – whether trial judge erred in finding duty of care did not extend to replacing lift mechanisms

Legislation Cited:

Civil Liability Act 2002 (NSW), s 5B
Uniform Civil Procedure Rules 2005 (NSW), r 51.22

Cases Cited:

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (In liq) (2003) 214 CLR 514; [2003] HCA 25
Sargent v ASL Developments Ltd (1974) 131 CLR 634

Category:

Principal judgment

Parties:

2016/133764:
Eugenie Schneider (Appellant)
Kent Street Pty Ltd (Respondent)

  2016/134197:
Eugenie Schneider (Appellant)
AMP Capital Investors Ltd (Respondent)

Representation:

Counsel:
Mr D Hooke SC/Mr H Halligan/Mr D P O’Dowd (Appellant)
Mr N Polin SC (Respondents)

  Solicitors:
Beilby Poulden Costello Lawyers (Appellant)
McCabes (Respondents)

File Number(s):

2016/133764; 2016/134197

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2016] NSWSC 333

Date of Decision:

6 April 2016

Before:

Fagan J

File Number(s):

2010/411126; 2011/260408

Judgment

1. McCOLL JA: I agree with Basten JA.

2. BASTEN JA: On 12 August 2008 the appellant, Eugenie Schneider, stumbled as she stepped out of a lift on level 1 of 20 Loftus Street, Sydney. The building was occupied by the respondent, AMP Capital Investors Ltd (“AMP Capital”). In regaining her balance, she wrenched her neck, exacerbating a pre-existing degenerative condition.

3. In 2010, the appellant commenced proceedings in the District Court claiming damages for personal injury against the owner of the building, Kent Street Pty Ltd. A year later, she commenced separate proceedings in the District Court against AMP Capital and two further defendants, ThyssenKrupp Elevator Australia Pty Ltd (“ThyssenKrupp”) and ISS Integrated Services Pty Ltd (“ISS”). Because of the quantum of the damages particularised by the appellant, both matters were transferred to the Supreme Court. The trial proceeded in the second half of 2015 before Fagan J in the Common Law Division. On 6 April 2016 Fagan J delivered judgment for the defendants. [1]

   1. Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd [2016] NSWSC 333 (“Schneider”).

4. On 6 July 2016 the appellant filed notices of appeal in relation to each proceeding. The principal appeal was brought against AMP Capital, ThyssenKrupp and ISS. However, on 31 August 2016, the appellant consented to the appeal against ThyssenKrupp being dismissed. On 22 September 2016 a similar order was entered by consent with respect to ISS. It will be necessary to refer to the roles of those companies in relation to the management of the building, but there are no extant proceedings against them.

5. At trial the claims against Kent Street Pty Ltd were dismissed summarily, the trial judge noting:[2]

“The common position now taken by the parties in this Court is that Kent Street is not the occupier and I consider that there is no capacity in which it owed a duty of care to the plaintiff.”

After addressing the facts and making relevant findings, the judge returned to Kent Street only to say that for the reason noted above, there must be a judgment for the defendant. [3]

2. Schneider at [7].

3. Schneider at [114].

6. Nothing was said in the course of the appeal, either in written submissions or orally, to challenge that conclusion. Accordingly the appeal with respect to Kent Street Pty Ltd must be dismissed. As it was represented by the same solicitors and counsel as AMP Capital, its separate costs in this Court are likely to be limited. The appeal should be dismissed with costs.

7. It remains to consider the appeal in relation to AMP Capital. For the reasons given below, that appeal must also be dismissed.

Presentation of appeal

8. The notice of appeal identified 14 separate grounds and sought specific findings in relation to 13 specified facts. The four final grounds (grounds 11-14) sought to challenge findings made by the trial judge with respect to the nature and extent of the appellant’s injuries, consequential upon her accident.

9. The trial judge took a jaundiced view of the appellant’s medical evidence for reasons which he explained in some detail. The reasoning underlying this approach was justifiable. In an evidentiary statement made on 10 March 2015 the appellant stated:

“Before the accident I was an active person in good health. It was my invariable routine to walk every morning for about one hour. Whilst I did not play regular sports I used to ski, which I ceased in about 1997. In the early part of the 1990s I developed a condition in my neck which was controlled. I had in this respect taken some advice from Dr Garrick. I undertook no surgery. The condition was appropriately managed by taking analgesia and I was only troubled by the condition, on average, about twice a year.”

Her evidence of her post-accident condition, which formed the basis for a claim of $2.5m, sought to demonstrate a dramatic deterioration.

10. The trial judge noted that the appellant had seen a neurosurgeon, Dr Sheehy, in May 1997 and a neurologist, Dr Garrick, in July 2000, at which time an MRI scan had been undertaken. She consulted Dr Garrick again in August 2001, September 2001, July 2003 and April 2004. Importantly, there was a further referral to Dr Garrick on 17 March 2008, some five months before the accident. The judge also set out the extensive history of her consultations with general practitioners from November 2005 until August 2008. Following the accident, she was again referred to Dr Garrick and a further MRI scan was obtained in September 2008. Dr Garrick was not able to identify significant changes in comparing reports of the earlier scans.

11. The physiological evidence relied upon at trial was primarily given by Dr Farey, a neurosurgeon, who was given an extremely limited history of pre-accident pain, without mention of significant features (including radiating pain in the arms) which had predated the accident.

12. The trial judge was dismissive of Dr Farey’s opinions:[4]

“The fundamental premise of this opinion about exacerbation caused by the incident of 12 August 2008 is false, through no fault of Dr Farey’s, because he was not provided with Dr Garrick’s reports at the time of his first consultation with the plaintiff or at any time thereafter in the course of preparing his own sequence of reports …. He had not read the entirety of Dr Garrick’s reports even at the date of giving evidence.”

4. Schneider at [239].

13. This is but a sample of the findings with respect to injury sought to be challenged on the appeal. Apart from stating in the final sentence of the written submissions, dated 10 October 2016, that “[a]ny findings made by the Primary Judge as matters relating to damages ought to be set aside”, nothing was said to identify error. Indeed, the materials before this Court did not contain the plaintiff’s medical reports (of which there were 71) or the defendant’s medical reports (of which there were seven listed in the index to the appeal books).

14. The respondent’s written submissions, filed on 8 December 2016, noted the absence of challenge to the findings of the trial judge in relation to the appellant’s injuries. [5] Those submissions also noted the finding that “the [appellant] has suffered only a temporary aggravation of her symptoms of pain … lasting about two weeks”[6] and the further conclusion that any damages, had liability been upheld, “would be very small indeed.”[7]

    5.    Respondent’s written submissions, par 76.

    6. Schneider at [300].

    7. Schneider at [301].

15. Unless the finding of the trial judge that any damages awarded would be “very small indeed” could be dismissed as unsupportable, the appellant would have needed leave to appeal. The Registrar directed on 31 August 2016 that an affidavit be filed setting out the material facts on which the appellant relied. To justify her appeal as of right she filed an affidavit purporting to explain why the amount in issue exceeded $100,000 and accordingly leave was not required. The affidavit stated that “[t]he economic loss and out-of-pocket expenses claimed by the Appellant exceeds [sic] $100,000.” Schedules of the worker’s compensation payments and the damages claimed at trial were attached. However, given the findings made by the trial judge, absent some basis to set aside those findings, the affidavit did not set out “the material facts” on which the appellant relied to show, even on an arguable basis, that the restriction did not apply. [8]

    8. UCPR, r 51.22(3).

16. The material which might have allowed the Court to consider whether there was error on the part of the trial judge in making the factual findings as to the appellant’s injuries not being available, grounds 11–14 must be dismissed.

17. In these circumstances it would appear that the appellant needs leave to appeal. As the challenges to the judgment on liability are almost entirely directed to the judge’s findings of fact, and certainly raise no issue of principle, it may be doubted that leave would have been granted. However, as no point was taken as to the competence of the appeal, there should be a grant of leave to the extent it is required.

18. The other grounds in the notice of appeal, and the proposed findings of material facts, were addressed with a broad brush in the written submissions filed for the appellant. The argument relied on at the hearing of the appeal adopted a somewhat different approach, rendering it unnecessary to consider the individual grounds and material facts, or the detail of the written submissions. Rather, counsel for the appellant raised three separate issues, two of which were closely related, the third issue being dependent upon the first.

19. The first issue asserted error in a particular passage of the reasoning of the trial judge, identified by the appellant’s counsel as a “dispositive finding”. [9] That finding involved a rejection of the appellant’s evidence as to how her trip and stumble had occurred. That finding formed the basis of the judge’s rejection of her claim that the accident was caused by the negligent conduct of AMP Capital. These were the first and third points addressed at the hearing of the appeal.

    9.    CA Tcpt, 01/03/17, p 2(3).

20. The second point challenged the judge’s finding as to the scope of the duty owed by AMP Capital to the appellant.

21. It was necessary for the appellant to succeed on both grounds in order to succeed on the appeal. As will be explained, she fails on both grounds.

Inadequacy of dispositive finding

22. The premise on which the appellant’s case rested was that when she took the lift to level 1 of the building, and the doors opened allowing her to step out, there was a discrepancy between the level of the floor of the lift and the level of the foyer into which she was stepping. The discrepancy formed a step which she was not expecting and on which she stumbled.

23. Two matters were not in dispute: first, there was no doubt that she tripped as she left the lift; secondly, it was accepted on her part that a degree of difference in the floor levels was to be expected. A third factor which appears to have been accepted, although it did not receive express attention, was that the lift stopped short of the level 1 floor, rather than overshooting. The case thus concerned what was described as “levelling”, being the function of the lift or elevator in stopping level with the external floor at its destination.

24. The evidence supported the view that a discrepancy of 10-12mm (or about 1cm) was acceptable and that the lift in question was of an age and fitted with a mechanism which did not allow a greater level of precision when levelling. Accordingly, the appellant sought to establish that the step between the lift floor and the external floor level was between 30mm and 50mm (or in her words, 1½ to 2 inches).

25. The difficulty for the appellant was to identify how she could know the height of the step. If she had seen it before she tripped, she probably would not have tripped; in any event, she did not suggest that she had seen it before her foot caught. The alternative was that she had recovered her balance and turned around to view the position of the lift, before the doors closed and it departed. She did give evidence at the trial that that was what happened, but she went somewhat further and claimed to have held the lift until the person she was visiting on that floor came out with a key and locked the lift so that it could not move. That person, Mr Peter Ray, gave evidence which the judge accepted that she called out to him, but by the time he had come out of his office the lift had gone. He had gone down to the ground floor in order to lock the lift (with the doors open) so that it could not be used until it had been inspected by a mechanic.

26. There was ample ground for the trial judge to reject the appellant’s evidence as to the height of the step on which she tripped, based on her claim to have seen it before the lift doors closed. That finding was not challenged. Rather, it was said that, in making such a finding, the trial judge had wrongly rejected the possibility of reaching a finding as to the height of the step by inferential reasoning, based on other known circumstances. The passage in which the judge was said to have made this error read as follows:[10]

“My acceptance of the evidence of Mr Ray and rejection of the plaintiff’s claim that she observed the height of the step upon Peter Ray locking the lift in the position from which it had caused her to trip means that the plaintiff has failed to establish on the balance of probabilities what it was she tripped on. This is fatal to her endeavour to prove breaches of duties of care alleged to have been owed to her by the defendants.”

10. Schneider at [58].

27. The second and related passage was to be found in the finding as to causation, expressed in the following terms:[11]

“The plaintiff’s case against [AMP Capital] also fails on the issue of causation of harm because of her failure to prove what was the height of the step or sill upon which she tripped. Even if [AMP Capital’s] duty of care required that it should have upgraded the lift machinery to the modern standard, as that would only achieve levelling to within a tolerance of plus or minus 6mm I would have to be satisfied that the sill over which the plaintiff tripped was greater than that in order to find that the failure to replace the machinery was the cause of her accident. For reasons given in [53]–[58] I do not find on the balance of probabilities that the step was any more than 6mm.”

11. Schneider at [146].

28. The appellant complains that, in describing the rejection of her evidence as “fatal to her endeavour to prove breaches of duties of care” the trial judge foreclosed a finding based on other material. Thus, the submission proceeded, it was not in dispute that the appellant had tripped at the point of egress from the lift on level 1 and that it was probable that she had tripped because of a levelling error.

29. To that basic proposition (which might lead to no more than speculation as to the height of the step thus caused), was to be added evidence that there had been levelling problems with that lift on other occasions, that the type and mechanism of that class of lift were known to give rise to levelling problems, and that these included discrepancies of more than 20mm and up to 30mm-50mm. Had the trial judge had proper regard to such evidence, the submission proceeded, he should have formed the view on the probabilities that the height of the step exceeded that which constituted an acceptable level of risk.

30. In order to evaluate this submission it is necessary to explain the structure of the judgment.

31. After identifying the parties and the pleadings at [1]-[14], the judge considered the nature of the appellant’s employment in 2008. In doing so, he addressed an argument that it was actually the appellant’s responsibility, as an employee of a company which undertook property management on behalf of the respondent, to see that the lifts were kept in proper working order. The judge rejected that proposition. [12]

    12. Schneider at [29].

32. The judge then turned to the description of how the accident occurred and its immediate aftermath, dealing with the evidence of the plaintiff and of the person she was visiting at 20 Loftus Street, Mr Peter Ray. Mr Ray was the ISS building supervisor for 20 Loftus Street and occupied an office on level 1 of the building. It was the assessment of the evidence of Mr Ray and the appellant which led to the “dispositive finding” at [58], set out above. [13]

    13. See [26] above.

33. The next section of the judgment dealt with reports prepared by ThyssenKrupp, which responded to a call from Mr Ray and sent one of its staff to check the operation of the lift. ThyssenKrupp was the contractor responsible for maintenance, servicing and repairs to the lifts at 20 Loftus Street. Amongst the documents to which the judge referred was a “Third Party Accident Report” prepared by ThyssenKrupp which described how the accident occurred in the following terms:

“The lady tripped as she exited lift resulting in pain to the neck. It was stated that the lift was not level with the landing (exact difference from car to landing not mentioned).”

The report identified the remedial action taken in the following terms:

“Checked lift levelling on all floor[s] in both directions (no level to be found in excess of 7mm). Replaced UP levelling brush and check of selector levelling and stopping brushes with minor adjustments made.”

34. In setting out this material, it was clear that the judge was aware that information as to the height of the step on which the appellant tripped might be obtained otherwise than from her evidence and that of Mr Ray. He concluded:[14]

“These records of ThyssenKrupp do not remedy the gap in the plaintiff’s evidence in the fundamental respect of lack of proof of the degree of levelling inaccuracy on the day of the accident.”

14. Schneider at [66].

35. The next section of the judgment was headed “Characteristics and performance of the lifts at 20 Loftus Street”. The section dealt primarily with the evidence of an expert on the operation of elevators, Mr John Thomson. The judge concluded with this summary of his evidence: [15]

“The lift could at times stop 25mm to 30mm out of level and the incidence of such discrepancies could be quite ‘random and infrequent’. He said that failure to level accurately would be unpredictable. Mr [Thomson] estimated that, given the characteristics of this lift, 90% of the time it would level to within plus or minus 10mm to 12mm. In Mr [Thomson’s] experience a lift of this type could fail to level accurately (that is, there could be greater than 10mm to 12mm differential) even when brand new, immediately after installation. He considered that the incidence of out of tolerance levelling would increase with the age of the machinery.”

15.    Schneider at [71]; the judgment wrongly referred to him as “Mr Thompson”.

36. Although counsel for the appellant said that this evidence was uncontroversial and unchallenged, there was a degree of ambiguity in Mr Thomson’s report, which was not resolved by his evidence at the trial. Taken literally, if the lift failed to level within 10mm-12mm in 10% of all stops, it could not be said that the incidence of greater discrepancies was “infrequent”; rather, there would be multiple such failures on a daily, if not hourly, basis. Leaving that difficulty to one side, the appellant submitted that, the lifts having been installed in 1972, 36 years before the accident, this evidence provided a firm basis from which to infer that the step over which she tripped was in excess of 10mm-12mm. However, the submission continued, there was no reference to this reasoning in the judgment, even to reject it.

37. The following sections of the judgment, from [72]-[113], dealt with matters relevant to the performance of the lift which may not have assisted greatly in determining the height of the step on which the appellant tripped. They were, in any event, not considered in that context, but rather in determining what AMP Capital knew or ought to have known and what steps it should have taken to reduce the risk of injury from tripping.

38. The last topic addressed as a factual matter concerned the historical performance of the lift. That exercise involved a review of the records obtained from ThyssenKrupp identifying complaints over the three years prior to the incident which required the attendance of a technician. The judge noted that there were 32 service calls for the No 1 lift over the previous five years, but only two involved levelling faults. [16] It was said on appeal that there were three [17] other reports which could have been described as falling within the same category, though each was part of a “maintenance record”, under the heading “monthly checks”. However, there was no record of complaints that the lift stopped short of a particular level, or by how much. In most, if not all, cases, the technician who attended the call undertook routine checks, or replacement of parts, without in fact identifying any fault.

    16.    Schneider at [105]-[107].

    17.    Counsel said “five” – Tcpt, p 20(16) – but identified only four, of which one made no reference to levelling.

39. Before addressing the substance of the ground of appeal, one further point should be noted arising from the finding at [146]. In referring back to his dispositive finding at [58], the trial judge said, dealing with causation, “I do not find on the balance of probabilities that the step was any more than 6mm.” In circumstances where the accepted tolerance level for the existing lift was 10mm-12mm, the reference to 6mm may seem curious. However, the lower figure was the degree of precision which might be expected of a lift installed in 2006-2008, with technology which was not available prior to about 1985. This evidence will be addressed in considering the submission that the relevant duty of care owed by AMP Capital required the upgrading of the lifts in 2006-2008.

40. There are two difficulties facing the challenge to the “dispositive finding” at [58]. First, it is clear from the fact that the judge referred to the ThyssenKrupp report as not remedying the gap in the plaintiff’s evidence that he did not ignore the possibility of inferential reasoning based on material other than direct evidence by an observer of the step on which the appellant tripped. The second difficulty is that, to the extent that the judge did not expressly deal with the circumstantial evidence on that basis, with one possible exception, the circumstantial evidence did not support a finding as to the height of the step on which the appellant tripped. The possible qualification to that statement requires reference to the evidence of Mr Thomson. Before addressing that material, it is convenient to note a third difficulty, namely that the appellant’s case at trial on this issue was based squarely upon her evidence that she had observed the step after she saved herself from the stumble and was therefore able to give an estimate of the height of the step. Neither the plaintiff’s written submissions at trial, nor the oral submissions put by senior counsel on her behalf, sought support in the circumstantial evidence for a finding as to the height of the step on which she tripped. Nor was there any contrary suggestion in the course of the appeal. Accordingly, one would not expect the trial judge to sift through the evidence looking for support for an inference where it had not been sought by the appellant.

41. The critical passages in Mr Thomson’s evidence were as follows: [18]

“These particular lifts … do from time to time provide poor floor leveling accuracy. I would suggest a leveling accuracy of plus or minus 10 to 12 mm would be an acceptable amount for 90% of the time but the leveling can be 25 to 30mm out of floor level at other times. This can be random and infrequent. This variation is not an indication of the standard of maintenance but rather the age and type of technology of this particular type of lift equipment.

… The [report of Jim Campbell & Associates dated 18 September 2008] said the lifts only had 15 logged calls over the last 12 months, which I suggest is an acceptable number. The next paragraph does say the building manager said the lifts operated erratically and users preferred not to use them. I suggest this is common of older lifts as the ride quality can be poor and noisy. The building manager did not appear to comment on poor leveling of the lift car.”

18.    Report, 29 April 2012 on the happenings of August 12, 2008 at 20 Loftus Street, Sydney, p 6.

42. One reading of this material is that of all trips taken in the lift, one would expect the acceptable tolerance for levelling at a particular floor to be achieved in 90% of cases. If that were correct, an unacceptable event occurred in one in every 10 trips. As noted above, that would seem to be inconsistent with the suggestion that events were “infrequent”.

43. A second question is whether the 10% of cases in which acceptable levelling was not achieved all involved errors of 25mm-30mm, or whether those cases involved the lift stopping at up to 25mm-30mm from the floor level. The latter seems more plausible, because no reason was proffered why the lift would never stop in the distance between 12mm-25mm.

44. Mr Thomson gave evidence at the trial, but not in a way which addressed these ambiguities. However, when asked whether the other 10% of cases were “unacceptable” he agreed and also said that “the further it’s out of floor level, then obviously the greater chance of a trip hazard.” [19] The following exchanges then took place: [20]

“Q. So that’s the relevance of the levelling being 25 to 30 millimetres out of floor level?

A. Yes, I have seen it – yeah, I’ve seen it happen yes.

Q. I’m sorry I am not making myself clear, but I am asking you is the 10 per cent of unacceptable levelling related to the size of the trip [hazard?] created?

A. Yes. Well it’s just that 10 per cent is – the 10 per cent I’m talking about is more than the acceptable 10 to 12 millimetre.

Q. I understand, and you have seen it up to 30 millimetres?

A. Yes.”

19.    Tcpt, p 484(22)-(31).

20.    Tcpt, p 484(33)-(43).

45. Unless the appellant were to succeed on the basis that the lifts should have been replaced, she needed to establish that the step on which she tripped was greater than 12mm and in the range from 12mm-30mm. Mr Thomson’s evidence was inconsistent with the proposition that the step was likely to have been in the range described by her, namely 1.5-2 inches or 38-50mm.

46. In these circumstances, the missing reasoning which was required for the appellant to succeed was along the following lines, namely (a) it was possible, but improbable, that she would have tripped on a step which was no more than 10mm-12mm high; (b) there was evidence that, albeit on infrequent occasions, the lifts tended to miss the floor level by between 12mm and 30mm; (c) it is possible, if unlikely, that the step was higher than 30mm; (d) on the probabilities, the judge should have been satisfied that the step was at least between 12mm and 30mm.

47. It does not appear that this form of reasoning was put forward at the trial; nor, in those terms, was it so articulated on the appeal. Furthermore, even in this form the reasoning proposed was by no means self-evidently correct. First, the reliance on Mr Thomson in this manner was inconsistent with the way the case was run at trial, Mr Thomson having been called by ThyssenKrupp. The primary purpose of the evidence appears to have been to support recommendations by ThyssenKrupp as to the desirability of replacing the operating mechanisms of the lifts. This is confirmed by the omission to put such a case to Mr Ray. In his written statement, Mr Ray said that he did not recall there being any particular problem with the lifts at 20 Loftus Street not levelling. In oral evidence, Mr Ray confirmed he had not found “any issues” as to levelling over three years prior to the appellant’s accident. [21] He did not recall such problems arising at the time of the ThyssenKrupp report. [22] Although in cross-examination by counsel for the appellant Mr Ray was directed to this part of his statement, [23] it was not suggested to him that, in fact, there was a one in ten chance that every time the doors opened the lift floor would be more than 10mm above or below the adjacent floor of the common property.

    21.    Tcpt, p 373(15)-(25).

    22.    Tcpt, p 380(20).

    23.    Tcpt, p 418(5)-(35).

48. Secondly, there was no ergonomic evidence to support the distinction sought to be drawn between the first and third propositions, namely that it was not probable that a person would trip on a step of less than 12mm, but it was probable that a person would trip on a step of between 12mm and 30mm. In effect, the trial judge implicitly accepted that the appellant tripped on a step, but found himself unable to say that, on the probabilities, it was at least 6mm, (or perhaps 12mm) high. The case was run on the basis of the appellant’s own evidence and, once that was rejected, it is by no means clear either that some alternative basis of calculation was available, or that it demonstrated a particular height on the balance of probabilities.

49. In these circumstances, the argument set out above, which was undoubtedly open to criticism, may not have been run for good reason. On the submissions which were put forward, the appellant cannot succeed. In short, the trial judge did not eschew the drawing of inferences from circumstantial evidence; rather, he failed to identify circumstantial evidence which would have assisting in resolving a critical issue in the appellant’s case. There was no error in that regard.

Scope of duty of care

50. In circumstances where a plaintiff in negligence proceedings identifies a critical element in the cause of action as the failure by the defendant to take a particular action, it is possible to describe the exercise as (a) determining the scope of the defendant’s duty of care or (b) determining whether the failure involved a breach of a duty, identified at a level of generality. In the present case, the trial judge dealt with the critical issue under the heading “What the duty of care required”. The judge held that the respondent “owed to lift passengers as a class, including the plaintiff, a duty to exercise reasonable care for their safety”. [24] The reasoning continued:

“For the purpose of determining whether a breach of that duty occurred, the risk of harm to be considered in the present case is the risk that a lift passenger might trip and thereby be injured upon exiting the lift if instead of levelling accurately it should stop in such a manner as to create a step or sill.”

24. Schneider at [115].

51. In addressing these questions, the trial judge expressly identified the factors to be taken into account under s 5B of the Civil Liability Act 2002 (NSW). [25] The judge then stated his conclusion at [127] in the following terms:

“I conclude that [AMP Capital’s] duty of care required it to select with reasonable care an appropriately qualified and experienced lift servicing company with thorough knowledge of the type of machinery installed at 20 Loftus Street. Reasonable care required that the service company selected should be engaged to carry out regular periodic inspection and maintenance at a frequency and in a degree of detail approved by the service company itself. It was also necessary that [AMP Capital] should institute both a system of verifying that this regular maintenance was performed and a system of monitoring the operation of the lifts and of calling out the service company in the event of any malfunction.”

25.    Schneider at [118] and [126].

52. The appellant did not cavil with the conclusions set out in the last paragraph; rather her submission was that the duty of care extended to an obligation to replace the lift mechanisms, if so advised by the independent contractor which had been engaged to monitor the operation of the lifts. This advice, it was submitted, was given in 2006, but was not implemented. That failure involved the breach of duty on which the appellant relied.

53. There are three factors which militate against acceptance of this challenge to the reasoning of the trial judge. The first is that the judge did in fact consider whether the failure to replace the lift machinery involved a breach of duty. The second is that the relevant contractor, ThyssenKrupp, did not in terms advise that the machinery needed to be replaced. Thirdly, the judge found that even updated machinery had a levelling tolerance of plus or minus 6mm and, as already explained, the judge did not accept that the appellant had established that the step on which she tripped was greater than 6mm.

54. While the difficulty for the appellant in establishing that the step was greater than 12mm has been discussed in the preceding section of these reasons, it may be accepted that the appellant had a stronger case in favour of a finding that the step in fact exceeded 6mm. However, this issue can be put to one side for present purposes, because the appellant’s case fails on the first and second issues.

55. The trial judge rejected the proposition that the duty required the replacement of the lift machinery, having regard to a number of considerations. The first was expressed in the following terms: [26]

“The precaution which the plaintiff has asserted [AMP Capital] should have taken was to upgrade these lifts, at a cost of $475,000. Even that would not have ensured that the lifts would never stop out of level but would give them a greater consistency of accurate levelling to a tolerance of plus or minus 6mm.”

26.    Schneider at [126(6)].

56. The judge then noted that the lifts were of an appropriate standard at the time of their installation. Although technology had, from about 1983, provided for more precise levelling and with greater consistency, there was no evidence that any regulatory requirement, industry standard or accepted industry practice required the lifts to be upgraded; nor that there was any expectation on the part of the public that lifts in high rise buildings in Sydney would operate to a standard achievable by post-1983 technology. Further, although more reliable levelling could be achieved, the lifts should not be described as dangerous or defective. The judge concluded:[27]

“Given the low probability of an out-of-level step being of such a nature as to go unnoticed by a reasonably careful alighting passenger, replacement of the entire lift machinery at a capital cost of $475,000 would be vastly beyond the requirements of [AMP Capital’s] duty to exercise reasonable care to protect a passenger such as the plaintiff against the identified risk.”

27. Schneider at [130].

57. This reasoning was challenged on the basis that ThyssenKrupp had, in October 2006, carried out a “hazard & risk assessment for existing lifts”, in accordance with an industry code of practice, which had identified a level of risk requiring the replacement of the operating machinery.

58. The assessment was undertaken on a standard form prepared by the Australian Elevator Association “for exclusive use of member companies” of which ThyssenKrupp Elevator was one. The form had 83 items of which only one was presently relevant, namely item 5 “stopping/leveling accuracy”. The requirement specified under this item was somewhat obscurely stated in the following terms:

“Floor levels to be within +/‑ 10mm & leveling accuracy of +/‑ 20mm.”

The form indicated that the requirement was not fulfilled and that the accompanying level of risk was “high”. The proposed “corrective action” was “change to regulated drive”.

59. The accompanying letter, addressed to Mr Ray at Resolve FM, the predecessor to the contractor ISS, stated that the assessment had been carried out at “your request” and noted relevant areas of non-compliance by reference to “Passenger Lift No’s 1, 2 & 3”. The assessment related specifically to the building at 20 Loftus Street, which only had two lifts. Item 5 was one of the items said to require attention. The letter contained the statement:

“Whilst there are areas of non-compliance when compared to the current lift code AS 1735 2001, this by no means affects the day to day operation of your lifts.”

The letter was sent over the name of Mr Daniel Lewin, whose position with ThyssenKrupp Elevator was described as “business development manager”.

60. Mr Ray was asked about the request for the assessment, his receipt of the document and what he did with it, and whether a meeting was held to discuss its contents. Nine years after the event, he was unable to recall the assessment or any of the surrounding circumstances. However, the records show that on 8 November 2006 Mr Lewin wrote again to Mr Ray with a quotation for certain items of work. Those items were identified by reference to the assessment; they did not include item 5.

61. Mr Lewin gave evidence at the trial. Mr Lewin was asked in chief to explain the two different figures in item 5; his answer appeared to indicate that the first figure of 10mm tolerance related to the lift stopping at a particular level, whereas the 20mm measure related to any change in weight which might occur when persons enter or leave the lift. Whether he in fact tested the individual lifts was unclear, particularly in circumstances where his letter referred to three lifts on premises in which there were only two. The trial judge said of Mr Lewin:[28]

“In 2006 ThyssenKrupp had a practice of sending out an annual letter to its customers offering to carry out a Hazard and Risk Assessment of the kind that was done in October 2006 for 20 Loftus Street. Mr Lewin did ‘hundreds’ of these reports in the course of his business development work …. The reports were done for a small fee. Their evident purpose was to encourage building owners to make substantial capital investments in new lift equipment or significant upgrades.”

28. Schneider at [76].

62. The judge also referred to answers indicating that the failure of the lifts to comply with the requirement of item 5 was based upon the technology available in lifts of that age, and was not necessarily based on any measurement of a particular lift on a particular day. (Mr Thomson had described the expected levelling errors as occurring randomly.)

63. For the purpose of determining whether there was a breach of duty on the part of the respondent, the trial judge held that the knowledge of its management agent (which in 2006 was Resolve FM) and in particular the agent’s employee (Mr Ray) was the knowledge of the principal. There was no challenge to that finding and there is no need to consider whether the principles derived from cases dealing with the state of mind of an agent acting in accordance with its authority require that the relevant knowledge of the agent is to be ascribed to the principal in determining whether the principal was liable in tort for a breach of its own duty of care. [29]

    29. See Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658-659 (Mason J); Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (In liq) (2003) 214 CLR 514; [2003] HCA 25; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [126]–[127].

62. In any event, nothing turned on this finding because the judge was satisfied that the respondent ought in any event to have known of the limitations on the accuracy of the levelling mechanism in the lift. [30] The judge stated:

“It ought reasonably to have made enquiry of appropriately qualified people as to whether the lifts installed at 20 Loftus Street were adequately reliable with respect to levelling and with respect to the minimisation of hazard to passengers.”

30. Schneider at [91].

65. The judge further concluded:[31]

“A reasonable occupier in the position of [AMP Capital] would, 30 to 35 years after installation, have made periodic enquiries of its service provider regarding whether the performance of the lifts was deteriorating and how their performance compared with that of more recent installations.”

The judge expressly held, however, that the possibility of levelling inaccuracy, of which the respondent ought to have known, did not include knowledge that “this would necessarily be dangerous to passengers irrespective of the degree of the levelling inaccuracy”, contrary to the terms of item 5 in the ThyssenKrupp assessment, which automatically classified the risk arising from non-compliance with its levelling standard as “high”. [32] Further, the judge accepted Mr Thomson’s evidence as to the inherent limitations of the equipment, which was consistent with that of Mr Lewin, to the effect that the lift mechanism was not capable of achieving levelling within a tolerance of plus or minus 10mm on all occasions.

31. Schneider at [92].

32. Schneider at [94].

66. It follows that the trial judge did not disregard any obligation of the respondent extending beyond the appointment of reliable contractors; nor did he disregard the “advice” given by its own contractor, ThyssenKrupp, with respect to the levelling mechanism. On appeal, the appellant contended that the respondent ought reasonably to have acted upon that advice and replaced the lift mechanism in 2006. However, as the trial judge held, properly understood item 5 did not convey any such advice, nor did it contain information which went beyond a general understanding of the limitations on the lift mechanism. The judge gave detailed reasons why that knowledge, assessed in the context of industry practice in relation to an older generation of lifts, did not demonstrate a breach of duty on the part of the respondent. That reasoning was not shown to be erroneous on the evidence. This ground must be rejected.

Orders

67. Once the whole of the reasoning of the trial judge is analysed, and taking into account the evidence upon which the analysis depended, the errors identified by the appellant are not established. There being no breach of duty on the part of the respondent, the appeal must be dismissed.

68. The Court should make the following orders:

1. If leave to appeal is required, grant leave to appeal from the judgments of Fagan J in matter 2010/411126 (Kent Street) and matter 2011/260408, in relation to the first defendant (AMP Capital).

2. Dismiss each appeal.

3. Order that the appellant pay the costs of the respondents Kent Street and AMP Capital in this Court.

69. LEEMING JA: I agree with Basten JA.

**********

Endnotes

Decision last updated: 10 March 2017