Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd; AMP Office and Industrial Pty Ltd v AMP Capital Investors Ltd; (“Schneider v AMP Capital Investors Ltd”)

[2016] NSWSC 333

Supreme Court

New South Wales

Medium Neutral Citation:

Schneider v AMP Capital Investors Ltd; Schneider v Kent Street Pty Ltd; AMP Office & Industrial Pty Ltd v AMP Capital Investors Ltd; (“Schneider v AMP Capital Investors Ltd”) [2016] NSWSC 333

Hearing dates:

17-25 August 2015 and 29 October 2015

Date of orders:

06 April 2016

Decision date:

06 April 2016

Jurisdiction:

Common Law

Before:

Fagan J

Decision:

Schneider v AMP Capital Investors Ltd, No. 2011/260408
1. Judgment for the defendants against the plaintiff.
2. Each of the first to seventh cross-claims is dismissed.

 

Schneider v Kent Street Pty Ltd, No. 2010/411126
1. Judgment for the defendant.

 AMP Office & Industrial Pty Ltd v AMP Capital Investors Ltd, No. 2014/308507
1. Judgment for the defendants.

Catchwords:

TORT – negligence – lift stopping out of level with fixed floor – failure of plaintiff to prove dimension of trip hazard – duty of care owed by a building management company which operated the lifts and occupied the lift foyers – content of the duty – requirement to institute maintenance regime – no breach established

  PERSONAL INJURY – trip accident alleged to have caused permanent exacerbation of pre-existing cervical spondylosis – incomplete pre-accident history given to post-accident treating specialist – competing diagnosis of unchanged idiopathic pain disorder – permanent exacerbation not proved

Legislation Cited:

Civil Liability Act 2002 (NSW)
Law Reform (Miscellaneous Provisions) Act 1946 (NSW)

Cases Cited:

Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; (2009) 239 CLR 420
Australian Safeway Stores Pty Ltd v Zaluzna [1987] HCA 7; (1987) 162 CLR 479
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
El-Ajou v Dollar Land Holdings Plc (No 1) [1994] 2 All ER 685
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Grills v Leighton Contractors Pty Ltd [2015] NSWCA 72
Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166
Neindorf v Junkovic [2005] HCA 75; (2005) 80 ALJR 341
Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in Liq) [2003] HCA 25; (2003) 214 CLR 514
Rallis v Pang [2003] NSWCA 202
Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; (2007) 234 CLR 330 at [45]
Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Voli v Inglewood Shire Council [1963] HCA 15; (1963) 110 CLR 74
WB Jones Staircase and Handrail Pty Ltd v Richardson [2014] NSWCA 127
Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Eugenie Schneider
Kent Street Pty Ltd (“Kent Street”)
AMP Capital Investors Ltd (“Capital Investors”)
AMP Capital Office & Industrial Pty Ltd (“Office & Industrial”)
ThyssenKrupp Elevator Australia Pty Ltd (“ThyssenKrupp”)
ISS Integrated Services Pty Ltd (“ISS”)

Representation:

Counsel:
Mr Barry Toomey QC/Mr Howard Halligan (Eugenie Schneider)
Mr Nicholas Polin SC (Kent Street, Capital Investors)
Mr Andrew Hourigan (Office & Industrial)
Mr Henry Neal (ThyssenKrupp)
Mr Ivan Griscti (ISS)

  Solicitors:
Mr Scott Hall-Johnston, Beilby Poulden Costello (Eugenie Schneider)
Mr Stuart Windybank, McCabe Terrill Lawyers (Kent Street, Capital Investors)
Ms Joanna Apostolopoulos, HWL Ebsworth (Office & Industrial)
Mr Gavin Creighton, Colin Biggers & Paisley (ThyssenKrupp)
Mr Andrew Saxton, DibbsBarker (ISS)

File Number(s):

2011/260408; 2010/411126; 2014/308507

Publication restriction:

Nil

Judgment

1. The plaintiff claims damages for injuries which she alleges were sustained on 12 August 2008 when she tripped upon exiting a lift in a building known as Stamford House at 20 Loftus Street, Sydney. The lift had failed to level accurately at the floor upon which the plaintiff was alighting. She alleges that a small step was created and she tripped over it. The defendants to this action and their respective capacities are as described in the following paragraphs.

2. AMP Capital Investors Ltd (“Capital Investors”) occupied the building at relevant times, subject to individual tenancies. In particular it occupied the lifts and the area on Level 1 immediately adjacent to the lift doors where the plaintiff suffered her accident. The registered proprietor of the property is Kent Street Pty Ltd (“Kent Street”) but it is agreed between the parties that full care, control and management of the premises was delegated by that company to Capital Investors.

3. ThyssenKrupp Elevator Australia Pty Ltd (“ThyssenKrupp”) has at all relevant times carried on a business which includes the servicing, maintenance and repair of lifts. Relevantly to the present case, in the period 2006 to 2008 inclusive ThyssenKrupp carried out the regular periodic inspection, testing and maintenance of the two passenger lifts installed at 20 Loftus Street. These services were carried out pursuant to a contract dated 20 March 2003 made between Capital Investors (under a former name) as Principal and ThyssenKrupp as Contractor (“the Comprehensive Maintenance Contract”). The term of this contract was initially five years. It is common ground between the parties to the proceedings that it continued in force beyond the five years and that Capital Investors and ThyssenKrupp respectively continued to perform it throughout 2008, at least.

4. ISS Integrated Services Pty Ltd (“ISS”) in 2007 and continuing through 2008 carried on a business of managing and overseeing the performance of building maintenance contracts between other parties. With effect from 1 July 2007 ISS was engaged under a contract with Capital Investors, self-described as a “Soft Services Agreement”. This Agreement related to numerous properties including 20 Loftus Street. By Clause 22.8 the Soft Services Agreement required that ISS appoint in respect of each property a Facilities Manager. ISS appointed Mr Peter Ray as Facilities Manager for 20 Loftus Street and for four other properties in the same city block. In broad terms the Soft Services Agreement required that ISS through Mr Ray would exercise day-to-day supervision of the performance of various “Managed Contracts” with respect to 20 Loftus Street including the ThyssenKrupp Comprehensive Maintenance Contract.

5. The plaintiff alleges that each of Capital Investors, ThyssenKrupp and ISS owed her a duty of care which was breached on 12 August 2008 as a result of Lift 1 failing to stop accurately at Level 1 of the building. The basis upon which a duty of care is sought to be attributed to each of these defendants will be considered later in these reasons.

6. By a separate Amended Statement of Claim the plaintiff has sued Kent Street for the same damage arising out of the same trip accident. The action against Kent Street is based upon pleaded allegations that it was at all material times the owner of the premises and owed a duty to the plaintiff to ensure that they were safe. That action was commenced in 2010 and the proceeding against the other three defendants was commenced in the following year. Both proceedings were instituted in the District Court, transferred to this Court and then heard together.

7. It appears that the plaintiff probably commenced her action against Kent Street upon the basis of a Real Property Act search and an assumption that the registered proprietor would be the occupier of common areas of the building. 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.

8. At the time of the trip accident on 12 August 2008 Ms Schneider was employed by AMP Capital Office & Industrial Pty Ltd (“Office & Industrial”). This company was party to a Property Management Contract with Capital Investors which commenced on 1 July 2008. Although the written contract was not signed until March 2009 I infer that Office & Industrial performed the services described in the contract from its agreed commencement date and that it was paid in accordance with the contract from that time.

9. The Property Management Contract required Office & Industrial to provide services in respect of a large number of properties, including 20 Loftus Street. One category of service to be provided was financial management – invoicing tenants, collecting rent, paying outgoings, estimating tenants’ share of outgoings and providing information to Capital Investors about income and expenditure, to facilitate budgeting, financial reporting and the preparation of tax returns.

10. A second category of Office & Industrial’s services under the Property Management Contract was tenant management. This included the documentation of leases and managing physical (as opposed to financial) aspects of tenant occupancy – authorising fitouts, approving tenant signage, ensuring that premises would be made good upon tenants vacating and the like.

11. A third aspect of the Property Management Contract was building management. This was to include regular inspection of each property “to ensure that the required standard of presentation, cleaning, aesthetic repairs and operations are being maintained” (Schedule of Services, Part 1, Clause 3(c)). Office & Industrial’s work is further described in Clause 3(d) in Part 1 of the Schedule of Services:

“(d) Property operations, supervision and management of contractors delivering Hard Services maintenance and Soft Services.”

12. “Hard Services” is defined in Clause 1.1 of the Property Management Contract to mean “a property’s building structure and items relating to construction and installation as well as physical plant and equipment”. “Soft Services” is defined to mean “non-trade based services such as cleaning, security, evacuation and landscaping etc”.

13. Many more services are described in the Schedule of Services to the Property Management Contract and are therefore within the scope of Office & Industrial’s obligations. However what has been described above is sufficient to show that, for 20 Loftus Street amongst many other buildings, Office & Industrial had obligations both with respect to the commercial management of the property (referred to by the witnesses as “property management”) and with respect to the physical and operational management (referred to by the witnesses as “facilities management”).

14. Since the plaintiff’s trip accident of 12 August 2008 Office & Industrial has made substantial workers compensation payments to her. By a Statement of Claim filed 21 October 2014 Office & Industrial has claimed against Capital Investors, ThyssenKrupp and ISS recovery of these payments. This claim is made pursuant to s 151Z(1)(d), Workers Compensation Act 1987 (NSW). The recovery action has been heard together with the two proceedings brought by the plaintiff.

The plaintiff’s employment in 2008

15. Number 20 Loftus Street is a nine storey commercial office building. By about mid 2008 most if not all of the leases in respect of the property had expired. The subdivisible lettable areas of the building were either vacant or occupied by tenants holding over pursuant to expired leases or otherwise on short term tenures.

16. In those circumstances Office & Industrial, as the entity which had contracted to Capital Investors to undertake commercial management of the property, wished to sign up tenants in respect of all lettable areas for terms which would continue to the end of 2010. The plaintiff was employed by Office & Industrial to assist with this for six months from 18 June 2008 to 19 December 2008. The letter describing her position, duties and terms of employment is dated 20 May 2008. Although it is on letterhead of “AMP Capital Investors” the opening sentence is an offer of “temporary full time employment with AMP Capital Office & Industrial Pty Ltd”. The terms of this letter were evidently accepted by the plaintiff as she did commence the employment.

17. The letter describes the position offered to the plaintiff as that of “Property Manager, Level 4, in the AMP Capital Office & Industrial Business Unit”. Duties were said to be those “set out in your annual Performance Agreement which you should enter into with your Manager shortly after the commencement of employment in your new position”.

18. The evidence does not establish that any such document was entered into. The letter instructed that the plaintiff should “report to Gary Quig, Divisional Asset Manager”. Mr Quig was the plaintiff’s “Manager” within the meaning of that term as used in the employment letter. He gave evidence but did not identify any schedule or list of duties that the plaintiff was required to undertake.

19. By the time of accepting this employment the plaintiff had acquired some experience in real estate management. She completed her Higher School Certificate in 1990. She studied real estate management at a TAFE college at Crows Nest for two years, 1993 and 1994. In mid 1996 the plaintiff obtained a position as a receptionist in a business which involved real estate sales and investment. She continued with that until 1997 at which time she took employment with Ray White Commercial Real Estate in the central business district of Sydney. She was there concerned with sales of strata titled office space. Whilst in that employment the plaintiff undertook further study towards a Bachelor of Land Economics Degree. She ceased her employment in 2002 for the purpose of studying full time to complete the degree course. That had been achieved by the end of 2004.

20. The plaintiff then obtained employment with Jones Lang Lasalle Property Management in the Sydney central business district, from May 2005 to the end of 2006. With this firm she managed a property portfolio, including liaison and negotiation with tenants. From January 2007 she worked for another city real estate business, Savills, initially full time in early 2007 and later part time through to the first half of 2008. The work was that of a leasing agent for a portfolio of properties owned by the National Australia Bank.

21. Although Office & Industrial’s employment letter of 29 May 2008 does not say so, the buildings in relation to which the plaintiff was employed as a property manager included 20 Loftus Street, an adjacent building and three further properties at the back of these buildings facing onto Young Street which is parallel to Loftus Street. Office & Industrial managed this entire group of five properties, comprising most of a city block, pursuant to its Property Management Contract with Capital Investors.

22. According to Mr Gary Quig the plaintiff “was responsible for the daily running of the properties”, including 20 Loftus Street. She was “responsible for tenancy matters, administration and income issues and had daily if not weekly meetings with the ISS Building Supervisor, Mr Peter Ray”. For the purpose of carrying out his duties as Facilities Manager, in discharge of ISS’s obligations under the Soft Services Agreement, Mr Ray occupied an office on the first floor of 20 Loftus Street.

23. Mr Quig’s evidence did not include any clear account of what the plaintiff was actually instructed to do with respect to 20 Loftus Street in performance of the job for which she had been employed. He said that the plaintiff was designated as property manager for the building and:

“… would be responsible for … liaising with the …. tenants in regards to income, raising income, negotiating leases and then also the operational issues which I have discussed previously [ie. such as repairs, maintenance, cleaning, security, electricity, plumbing, lifts and air conditioning]. She would be the person on site that would deal with those issues, well, not on site but deal with those issues primarily from the facilities manager through to the asset management”.

24. With respect to any responsibility the plaintiff may have had for what Mr Quig termed “operational issues”, this answer, particularly the last sentence, does not describe any duties in a concrete or meaningful way. Moreover it is expressed in terms of practice (what the plaintiff “would” do) but no evidence was given of any course of conduct amounting to a practice which would establish the scope of the plaintiff’s duties.

25. Later Mr Quig said that with respect to any breakdown or malfunction of the systems in the building it was the task of Mr Ray as the Facilities Manager appointed by ISS to call a contractor to assess the problem. In the case of a small value repair Mr Ray had authority to instruct the serviceman to undertake the work forthwith. If more substantial work was required Mr Ray would request that a quote be submitted to Office & Industrial. He also said that:

“… depending on the … size of the … problem … [Mr Ray or ISS] would consult with the property manager, and if need be, the property manager may consult with the asset manager”.

26. As Mr Quig identified the plaintiff as the property manager this answer suggests that she would have some involvement. But at its highest the answer only suggests that the plaintiff would become involved in a repair issue if the cost of repair was likely to be substantial and if Mr Ray or someone else on behalf of ISS raised it with her. There was no evidence to show that at any time during her employment up to the date of the accident the plaintiff had ever received a referral from Mr Ray about the need to attend to any maintenance item, whether minor or substantial and whether in relation to the lifts or any other aspect of the plant or machinery of the building. Further, there was no evidence to suggest that the plaintiff had ever received any instruction that she was required as part of her job to take any responsibility for seeing to the rectification of a maintenance item referred to her, if there should be such a referral.

27. In cross examination Mr Quig agreed that so far as what he termed “operational matters” were concerned the plaintiff was “there to an extent as someone who passed up the line to the assets management branch a request which might require the expenditure of substantial monies”. He agreed that “Mr Ray was the man who was keeping an eye on the fact that the building was running alright”. Mr Quig expressly did not recall what discussions he had had with the plaintiff in the first month of her employment. He did not claim to have instructed her that she had any responsibility for assessing the mechanical performance of the lifts at 20 Loftus Street or reporting on any perceived deficiency in them or any possible requirement that they be replaced or mechanically upgraded.

28. The plaintiff’s evidence was that from when she commenced in the job on 18 June 2008 her task was “largely to negotiate one hundred leases in respect of the four buildings owned by [Capital Investors]”. She said the role also required her “to look after the arrears of any rent outstanding, to liaise with [Mr Ray] and to prepare financial records of the income and expenditure of the four buildings”. Although she referred to “four” buildings in this part of her statement, the Property Management Contract, the Soft Services Agreement and her own evidence at T 180 show that there were five relevant buildings.

29. In cross examination of the plaintiff by counsel for Capital Investors an attempt was made to establish that her duties had included some degree of oversight of the maintenance of the building, to the extent of informing herself about any deficiencies in their condition including in relation to plant and machinery such as lifts, and taking measures to have any such deficiencies rectified. The point of this questioning was to try to establish that the plaintiff was herself the person (or a person) bound by the obligations of her employment to exercise reasonable care to see that the lifts were kept in proper working order and did not fail to level and to make recommendations for replacement or upgrading if the lift equipment should not perform satisfactorily. I find that the plaintiff’s employment carried with it no such responsibility. Nor did she assume any such role.

Plaintiff’s description of her accident – in chief

30. The plaintiff signed an evidentiary statement on 15 March 2015 and adopted it at the commencement of her evidence in chief. She described the tripping incident on 12 August 2008 in these paragraphs (with emphasis added):

“17.    On the day of the accident, 12 August 2008, I walked from my office at 50 Bridge Street to 20 Loftus Street so as to speak with Peter Ray. At about 12:30pm I entered the building at Loftus Street from the ground floor. I pressed the call button on Elevator 1. The lift arrived and the two centre opening doors opened. The lift carriage was empty. I moved inside and pressed the destination button for Level 1. Upon arrival at Level 1 the lift carriage stopped and the doors opened. I attempted to exit. As I moved over the threshold, my left foot caught on an uneven part of the exit which, on later inspection, I saw that there was a raised portion of about 4cm higher than the floor of the lift carriage. As my foot caught, I lurched forward at about 70 degrees from the vertical. I jerked back in an attempt to save myself from falling and immediately felt a burning pain across my shoulders. I yelled out to Peter “Peter, I have tripped. Come out please.”

18.   As Peter arrived I said to him “We need to lock off the lift to prevent the lift moving any further.” In response Peter used his special lift key to lock off the lift.

19.   After the event, I moved into Peter Ray’s office. We were there for about 3 minutes. During that time or shortly afterwards, Peter made a phone call to ThyssenKrupp to have them attend to fix the lift. The technician arrived at 1:00pm. I then had a cup of tea in the coffee shop next door with Peter Ray, then I returned to my office to resume work. After I returned to the office I met my boss, Gary Quigg. I informed him that I had just sustained an injury in a lift at 20 Loftus Street and mentioned to him that the lift had not levelled out properly and that the lift mechanics were called to make repairs. During the rest of the day I remained in the office. I was shocked, I was in pain and I was incapable of concentrating on any work matters. I left the office at 5:00pm.”

31. Several features of this account are important for comparison with oral evidence given by the plaintiff and with the evidence of Mr Ray. First, the expression “on later inspection” in para 17 clearly conveys that the plaintiff did not see the relative levels of the lift car floor and of the fixed floor at the time she tripped. This may be readily accepted. The fact that the trip occurred at all is at least consistent with – and provides some circumstantial evidence of – her not having looked down and seen the difference in levels at the time when her left foot caught.

32. Secondly, there is no suggestion in these paragraphs that the plaintiff turned back to see the degree of difference in levels immediately after she recovered her stance following the trip. Nor does she suggest in this statement that she turned and walked back to the lift after recovering to a stable upright position or that she then pressed the lift call button on the wall to hold Lift No 1 at the floor upon which she had just alighted. The absence of any such assertions becomes significant in light of her later evidence in cross-examination, to be referred to shortly.

33. Thirdly the fact that the plaintiff says in para 17 that she “yelled out to Peter ‘Peter, I have tripped. Come out please’” indicates that when she made the evidentiary statement she recalled Mr Ray not having been in the immediate vicinity of the lift doors but inside some other area from which he was summoned to “come out”. During Mr Ray’s evidence he drew a sketch, Ex 1.4, which showed that the foyer in front of the lifts was about 2 metres wide and 3 metres long (across the face of the lift doors). Past the lift doors the foyer extended another 3 metres to the left from the viewpoint of a person exiting the lifts, to a door which led in to a large ante room. This ante room was about 6 to 7 metres across. At the far side of it was a second door leading into Mr Ray’s office in which he was seated at the time the plaintiff tripped. I accept Mr Ray’s evidence about the floor layout and dimensions and concerning his position at relevant times.

34. Fourthly, para 18 of the witness statement also confirms that Mr Ray was not in the lift foyer when the plaintiff tripped and nor was he nearby, such as in or close behind the doorway which led off the lift foyer to the ante room. Paragraph 18 commences with the words “As Peter arrived…”. I infer that when the plaintiff made her statement she recalled Mr Ray coming from some other place to her location, in response to her having “yelled out to him”. I find that that other place was Mr Ray’s office.

35. Fifthly, the plaintiff’s statements in para 18 that she requested Mr Ray to “lock off the lift to prevent the lift moving any further” and that he “used his special lift key to lock off the lift” amount to an assertion that the lift had remained at Level 1 up to this point and that Mr Ray locked it off there. Mr Ray has said that this did not occur, in evidence which I will recount later in these reasons.

36. In evidence in chief the plaintiff described the tripping accident in answers partially extracted as follows (at T 111.41 – 114.12)

“Q. Can you tell us what happened when you got to the first floor?

A. The lift didn't align and it--

Q. What do you mean by the lift didn't align?

A. It was below the floor level and I tripped.

Q. What was below the floor level?

A. The lift was below floor level and--

Q. I'm sorry, could I ask you to distinguish the floor level of the building and the floor level of the lift?

[112.2] A. This is the lift and that's the floor level so.

HIS HONOUR

Q. You're indicating with your right hand the lift floor level is of lower level than your left hand which is the fixed floor level of the building.

A. This is the fixed floor and the lift stopped below, below the level of the, the floor.

TOOMEY

Q. Are you able to give us an estimate of the distance below the building floor level that it stopped?

[112.15] A. I'm not really sure but it might be, have been about that much.

...

Q. Sorry, what do you think the distance was, Ms Schneider?

[112.20] A. I'm not entirely certain but it was probably be about that much.

Q. What do you think is the distance you're indicating there?

[112.23] A. Probably about an inch and a half to 2 inches.

…

HIS HONOUR: Between 38 and 50 millimetres.

...

Q. Did you notice at the time the lift stopped that there was that discrepancy between the floor of the lift and the floor of the building?

[112.34] A. No.

Q. Did you go to leave the lift?

A. Yes, I did.

Q. What happened?

A. As I exited the lift, I tripped.

Q. How did you trip? Tell us what part of your body contacted what part of?

A. I went forward on one foot and was jerked back and forth.

Q. I'm directing these questions to what part of your body struck what part of that gap?

A. My, my foot.

Q. Yes, which foot?

A. My left foot, I believe.

[113.1] Q. Yes, what was the result of that?

A. I then - I tripped then.

Q. What happened then?

A. And then Peter Ray--

Q. I'm sorry, what happened when you tripped?

A. I got a very – wishlap (as said).

Q. I'm sorry. How did your body move when you were tripped?

A. It went forward and then back.

Q. Was it a conscious movement to pull yourself back or was it?

A. It happened very quickly.

Q. So you--

A. Yes, so I was - I wasn't in control, it just happened. I tried to save myself so obviously - and then I went forward and I went back.

Q. Were you aware of anything about your body when you did that?

A. Yes, my neck.

Q. What were you aware of?

A. I got an automatic burning and searing pain across my shoulders.

Q. Had you ever experienced such a pain before?

A. Never.

Q. What did you do when you had tripped and you recovered yourself?

A. Peter Ray was waiting for me.

Q. What did you do?

A. I, I screamed, I believe I screamed. I was in a lot of pain and I'd had a terrible fright.

Q. Can you tell us what you said when you screamed?

[113.38] A. I don't think I said anything, I just, I just screamed out ouch, that I was in pain, and then I tried - I then I got Peter Ray's attention, he came out and helped with me. Yes.

Q. Did he come out and see you at the lift?

[113.43] A. Yes. Yes, he looked at - he locked the lift off.

Q. Did you tell him what had happened?

A. Told him what had happened and he automatically I told him to lock the lift off so he - we locked - he, he, he just went and locked the lift off and then ..(not transcribable)..

Q. Were you present when Mr Ray made a phone call to ThyssenKrupp?

A. Yes, I was.

Q. Did they arrive?

A. Yes, they did.

Q. Was that a Mister - we know his name, doesn't matter. They arrived at about 1 o'clock I think, did they not?

A. Yes.

Q. What was the time you think of your accident?

A. Just after a quarter past 12.”

37. In this passage the plaintiff made it explicit that she had not noticed the level discrepancy at the time the lift stopped: T 112.34. She did not assert that she had seen any level discrepancy let alone the height of the step created, as she tripped. She did not say when if at all she had made an observation upon which she could have based her estimate of the height difference at “an inch and a half to two inches” (T 112.23, being 38.1mm – 50.8mm). Notably the plaintiff said “I’m not really sure” (T 112.15) what the height difference was and with respect to a differential of one and a half to two inches, which she illustrated with her hands, she said “it might be, have been, about that much” (T 112.15) and later “it was probably about that much” (T 112.20).

38. The uncertain way in which the height differential was stated is to be considered together with the absence of nomination of any point in the whole sequence of events at which she made an observation upon which such an estimate could be based. In those circumstances, her estimate is for all practical purposes completely unsupported and not a basis upon which I could make a finding that the level differential was within that range or any range.

39. Consistently with her evidentiary statement the plaintiff in oral evidence in chief (as quoted at [36]) did not suggest that she had turned and walked back to the lift, to stop it at Level 1 by pressing the call button, after she recovered her stance following the trip. In this passage, when stating that after Mr Ray arrived on the scene he “went and locked the lift off”, the plaintiff did not suggest that she had held it at Level 1 by depressing the call button on the wall in the meantime.

40. With respect to Mr Ray’s location at the time the plaintiff tripped, her answer that she “got Peter Ray’s attention, he came out and helped with me” (T 113.39, emphasis added) is consistent with Mr Ray having been in his office or, at least, not in the lift foyer and not in or behind any doorway off it, at the time the plaintiff alighted from the lift.

Plaintiff’s description of accident in cross-examination

41. Counsel for Capital Investors cross-examined the plaintiff about the circumstances of the tripping incident at T 182.26 – 191.26. Omitting some questions and answers which I consider not material and omitting objections and repetitions the evidence was as follows:

“[182.26] Q. You pressed level 1?

A. Yes.

Q. Then the doors opened?

A. Yes.

Q. You started walking out?

A. Yes.

Q. The next thing you know is that your left foot got caught?

A. Yes, I tripped from the lift.

Q. You didn’t fall down onto the ground.

A. No.

Q. You tripped and in the process of falling you were able to stumble and regather your balance?

A. Yes. I got, I got like a whiplash, thrown forward and then back.

Q. So you’ve gone back and it’s in the process of coming back up you’ve somehow got a whiplash, you say?

A. Yes, I, I did get a whiplash.

Q. You said that you were aware of immediate terrible pain in your neck and right across your shoulders. Is that correct?

[183.1] A. Yes.

Q. You immediately cried out for help?

A. Yes.

Q. Is that correct?

A. That is right.

Q. Do you say someone came out to help you?

A. Peter Ray came.

Q. You were asked some questions about the height differential between the floor of the lift and the outside floor. Do you remember that?

A. Yes.

Q. You weren’t able to say with any certainty what sort of height differential there was. Do you remember that?

…

[183.25] HIS HONOUR

Q. What counsel is doing is referring you to evidence that you gave this morning--

A. Yes.

Q. --when you were asked about the height difference and he’s put to you that when you answered those questions this morning you weren’t able to state with accuracy or precision what the height difference in the floors was.

A. Yes. Yes.

POLIN

Q. Is that right? Because you’d stumbled out of the lift.

A. Yes.

Q. And you’d recovered your balance and come back up and you were immediately in pain?

A. Yeah.

Q. Your first reaction was to call out to someone?

A. Yes.

Q. Is that right?

A. Peter. Yeah, when I was – Peter Ray used to stand at the door waiting for me if he knew I was coming over, so he, he – I don’t know if he saw me

[184.1] stumble out, I have no idea. I don’t, I don’t believe he did, but he came very quickly and locked the lift off.

Q. I want to suggest to you that in fact by the time you stumbled and got yourself up and realised you were in pain, the lift had actually shut behind you.

A. No. That lift, that lift was locked off and there is a lift docket saying that of the call out time and the lift docket also says that it had – that it wasn’t immediately meeting at floor level and there was, in fact, a gap between the floor level and the lift.

Q. I want to suggest to you that the doors closed and you didn’t actually ever see the difference in height between the level of the lift and the level of the floor.

A. No.

Q. That’s right, isn’t it?

A. No. No, that’s not right. It’s not right.

…

Q. Peter Ray was in his office, wasn’t he?

A. I just said he was – he has a glass door and stands – he used to stand there and wait for me when he knew we were coming – when I knew – he was – I was coming because we’d always go downstairs and have a coffee.

Q. I want to suggest to you on this particular day you went into his office and he was not standing at the door waiting for you?

A. Well, I don’t know. I don’t believe that to be true at all. That’s not how I remember it.

Q. I want to suggest after you’ve reported the incident to him that he has to press the button to get the lift to come back up to level 1.

A. I don’t recall it being that, that way.

Q. It’s only after he did that that he was able to lock the lift off?

A. No. The, the lift remained on level 1 and I, I instructed him to take it out of

[184.38] action. I was pretty hysterical.

…

[185.34] POLIN

Q. The lift arrived at level 1, you went to get out. Your left foot got caught and you stumbled or tripped forward. You attempted and, indeed, did regain your balance by bringing yourself back up. I think you said you got a whiplash doing that. You felt immediate pain in your neck and across your shoulders and you were hysterical, that Peter Ray was standing at his door, which I take it is close to the lift. You immediately gave him an instruction to shut down the lift and he was in possession of the key to the lift and before the lift doors closed he got into the lift and shut it down. Is that the way you say it happened?

A. No.

HIS HONOUR

Q. What’s different about it, Ms Schneider? What’s counsel misunderstood in that?

[186.1] A. Well, it’s made – it’s been made to made out that there wouldn’t have been the time.

Q. Don’t worry about the impressions--

A. But that’s not right.

Q. --that might be gained from it or anything argumentative about it, but just concentrate on the--

A. It’s only how I remember it.

Q. --facts of the sequence.

A. I remember that when I tripped Peter Ray – when – and I’ve already said this, I’m repeating myself I’m sorry, but he used to wait at the glass door, his glass door, and wait for me, so he knew there was something wrong because he heard me. Now, I can keep the lift on that floor by pressing the call button,

[186.16] okay, and then it stays on the floor, so that’s what I probably did and he comes out with the lift key and locks it off. Then we called ThyssenKrupp straight away and we went down to the downstairs foyer and we waited for them for half an hour to arrive and I waited until they fixed the lift. Now, the lift docket clearly states that there was a levelling issue that day and how much it

[186.21] hadn’t levelled by.

…

[187.5] HIS HONOUR

Q. What did you say? Just explain what stop button you have spoken about in your earlier evidence.

A. I said the call button on the outside of the lift stopped the lift from moving so Peter Ray had time to get out and lock the lift off. I never said I got back into the lift and I never said I pressed the stop button. It’s not what I said.

[187.12] [POLIN]

Q. You never originally said that you got back up and went and pressed the call button to stop the lift leaving the floor?

A. It wasn’t a matter of getting back up. I was virtually knocked my face open on the, on the tenancy it was so close. So I could turn around and press the call button so the lift didn’t go anywhere. And Peter Ray’s office was from about here to that second – the bench behind where the girls are sitting.

Q. I understand you could do that, but what I’m suggesting to you is you didn’t do that.

A. Didn’t do what?

Q. Press the call button.

A. I – how do you – why are you saying I didn’t do it?

Q. Because I want to suggest to you that when you went into Peter Ray’s office and came back out with him and the lift had already gone.

[187.29] A. But that, but you’re making up a story. I don’t understand.

…

[188.49] Q. I’ll just go back a step at a time so you’re clear. It’s not in your evidentiary statement, is it, that you pressed the call button--

A. No, it’s not.

Q. --to keep the lift on the level.

A. No, it’s not.

Q. Mr Toomey asked you how the incident occurred, and you didn’t say in answer to his questions that you went back and pressed the call button to keep the lift on the level, did you?

A. No, I did not.

Q. And when I first asked you how it actually happened, you didn’t say that you went back and pressed the lift button to keep the lift on the floor, did you?

A. No, because how I interpreted what you were saying is you were, you, you were trying to put words in my mouth, that I’d done this and I’d said this and I’d done that, when I hadn’t at all. So I, that’s why I didn’t understand your,

[189.16] your line of questioning.

…

[189.40] Q. All I’m suggesting to you is only after I put the long question to you and suggested how ridiculous that series of events would have been, that you for the first time said that you went back and pressed the call button to keep the lift on the floor.

A. I don’t agree.

HIS HONOUR

Q. When have you previously referred to that, if at all, Ms Schneider?

A. I, I haven’t--

Q. The fact that you pressed the call button?

A. I, I haven’t, I haven’t, your Honour.

[190.1] Q. And why hasn’t that previously been referred to in your accounts?

A. I’m not sure. We’re going back seven years and it’s really quite different and difficult, and I know that’s – because I had to keep the floor on level till Peter Ray came to lock it off, lock the lift off, take it out of service. But I didn’t go back into the lift and press the stop button and that’s, that’s not my – that’s in, in my statement. I didn’t enter the, I didn’t re-enter that lift again to press the stop button, so--

POLIN

Q. I want to suggest to you that in terms of the circumstances of your trip, you did not ever have the opportunity to observe and accurately identify the difference in level between the lift and the floor outside.

A. That was confirmed when the lift, when the lift – ThyssenKrupp was called out to, to level – realign the lift, and it was in the lift service docket, how much it had not levelled to the floor.

Q. So--

A. I believe there is a copy of that somewhere.

Q. So when you’re giving evidence about your estimate as to--

A. Yes.

Q. --the difference in height between the lift--

A. Yes.

Q. --floor and the--

A. Yes.

Q. --level of the floor, you’re basing that upon a document that

ThyssenKrupp--

A. No.

Q.--created that identified a difference in level.

A. No, I, but I also – when, when the lift was locked off I was able to see as well.

[190.41] Q. So I want to suggest to you that the lift was only locked off after Mr Ray called for the lift to come back to the floor.

A. No, that’s not correct. The lift remained on level 1. The lift remained on level 1. I’ve maintained that the whole time. That’s what I’m trying to say. It remained on level 1.

HIS HONOUR

Q. With the doors opened?

[190.51] A. With the doors open, your Honour.

…

[191.18] Q. You have said that you have always maintained that the lift remained there.

A. Yes, yes.

Q. And with the doors open.

A. Yes.

Q. Where have you previously said that?

A. In, in here today, and I was trying to say it before when it was taken that I

[191.26] said I got back in the lift and pressed the stop button, but I didn’t do that.”

42. This subject was returned to at T 201.5 – 201.22 and at 202.14 – .16:

[T 201.5] “Q. Just going back to a couple of the matters I dealt with yesterday, I want to suggest to you at no stage were you able to accurately identify the difference in level between the lift floor and the outside floor.

A. I believe it was about that much.

Q. I know you believe that.

A. Two inches.

Q. I want to suggest to you that that is nothing more than a guess that you’re making after the event?

A. No. I saw, I saw the – it was about that much, but the lift docket from the call out to fix the levelling issue will say exactly how much it was on level 5. If you refer to that it will be on that, I believe.

Q. Every time I ask you the question you refer back to that particular document and I want to suggest to you that the evidence you’re giving about he (sic) height differential in the lift is based on your seeing that document?

A. No. No.

…

[T 202.14] Q. You said yesterday you didn’t look down and see the height differential before you walked out. That’s what you told us yesterday.

A. No. I wasn’t aware until I’d tripped out of the lift.”

Mr Ray’s evidence concerning the day of the accident

43. The statement of Mr Peter Ray made 12 June 2015 contained these paragraphs regarding the tripping incident:

“14. I remember that Eugenie came into my office one day and said words to the effect of, ‘The lift didn’t level. I’ve hurt myself’.

15. Eugenie was upset. I sat her down and then went and isolated the lift.”

44. At T 369.35 and following Mr Ray gave evidence in chief that he was in his office “just after lunch” on the day of the incident, when the plaintiff entered the ante room (as described at [33]). He heard the outer door (leading off the lift foyer and into the ante room) being opened and he went out from his office to meet the plaintiff. She appeared to be “in some distress” and was about halfway across the ante room.

45. Mr Ray helped the plaintiff into his office and seated her in a visitor’s chair. She said she had tripped coming out of Lift No 1. Mr Ray took his “independent lift key” and “went out and located the lift because the lift had left the floor [ie Level 1] at that stage”. He went down the fire stairs to the Ground Floor, pressed the Lift No 1 call button on the wall and when it arrived locked it off and turned out its lights. When the lift was locked off the lift doors remained open.

46. Mr Ray gave evidence that Lift No 1 “appeared normal” with respect to levelling at the Ground Floor. He next contacted ThyssenKrupp to advise that there had been an incident of Lift No 1 not levelling correctly and to arrange attendance of a serviceman. He returned to his office. The plaintiff said she was alright and did not need to be assisted back to her office in another building. She left.

47. In cross-examination Mr Ray said that early in the plaintiff’s employment, for the first “couple of times” when she came from her office to meet with him at 20 Loftus Street, she had phoned ahead to say she was coming and he waited for her at the door of his office. However he did not do so on this occasion, which was over seven weeks into her employment. During those seven weeks she had visited his office on average twice per week. Mr Ray denied that he had been waiting for the plaintiff near the door between the ante room and the lift foyer and that he went out to the plaintiff after hearing her call out in distress. He also denied that he had isolated the lift at Level 1.

48. It was not put to Mr Ray that the plaintiff was holding the lift at Level 1 by depressing the call button on the lift foyer wall at any time when he could have observed this. His account of events was directly contradictory of this proposition. He recalled first seeing the plaintiff nowhere near the Level 1 lift call button but, rather, halfway across the ante room and, therefore, several metres from the call button. Mr Ray had a specific recollection that he went down to the Ground Floor where the lift indicator board was located. Upon ascertaining where Lift No 1 was, he brought it down to the Ground Floor and isolated it there.

49. I accept Mr Ray’s evidence. He gave a clear account of the plaintiff coming into the ante room and of his own action in then isolating the lift at the Ground Floor. He has no interest in the outcome of the proceedings and no reason to represent events otherwise than in accordance with his honest recollection. The occasion was evidently memorable to him because of the apparent distress of a young woman with whom he had a working relationship and because of the necessity for him to assume responsibility for having the faulty lift stopped and rectified.

50. The plaintiff’s counsel suggested that Mr Ray’s memory was poor and that this was evidenced by his lack of recollection of a Hazard and Risk Assessment of the lifts at 20 Loftus Street which Mr Ray had commissioned from ThyssenKrupp in October 2006 and which he had discussed with a ThyssenKrupp representative at that time (“the Assessment”). I do not consider that his lack of recollection of the Assessment demonstrates a general significant deficiency of recall. Mr Ray was no more than a conduit in relation to this Assessment, as between ThyssenKrupp and his superiors in the company which employed him in 2006, Resolve Engineering Pty Ltd trading as Resolve FM. Mr Ray was not the decision maker with respect to the findings and recommendations of ThyssenKrupp contained in the Assessment. He had no occasion to revisit it or think of it again in the nearly nine years between having received the document and the date when he gave evidence.

51. Similarly, I reject the plaintiff’s criticism of Mr Ray’s powers of recall based upon his lack of recollection of an asserted second fault report logged with ThyssenKrupp the day after the plaintiff’s trip incident. For reasons stated at [62] by reference to the ThyssenKrupp service records I am not satisfied on the balance of probabilities that Mr Ray ever did make a second call to the lift service company on 13 August 2008. It is equally possible that the ThyssenKrupp documents merely record a second attendance pursuant to the original call on 12 August. In any event, Mr Ray had no particular reason to have retained a memory of having summoned a ThyssenKrupp serviceman a second time on the day after the plaintiff’s accident, if that did occur. His failure to recall this event is not significant in my assessment of his general reliability.

52. Further, Mr Ray’s evidence regarding the plaintiff entering the ante room and concerning him descending the stairs to the Ground Floor to lock off the lift is a positive recollection which in significant respects contradicts the version of events given by the plaintiff in cross-examination. For Mr Ray’s evidence in these respects to be displaced it would require more than merely a demonstration that he has tended to forget some things and that he therefore may also have forgotten others.

Rejection of plaintiff’s evidence concerning the aftermath of the trip

53. Having regard to the manner in which the plaintiff answered questions in cross-examination (see [41] – [42]) and the sequence in which aspects of her account of critical events emerged during that questioning, I do not accept her case that Peter Ray came out to her in the lift foyer so soon after she had tripped that, upon doing so, he was able to and did lock the lift off at Level 1. I reject the plaintiff’s evidence that she held the lift on Level 1 by depressing the call button until he arrived. I do not accept that she would have had the presence of mind to do so, given that she was, in her own words, “pretty hysterical” (T 184.48) and, in Mr Ray’s assessment, “in some distress” (T 370.4). In claiming to have detained the lift on Level 1 the plaintiff was at best tentative. She said that pressing the call button on the lift foyer wall was “what I probably did”: T 186.16, quoted at [41].

54. The plaintiff’s claim in this respect is rendered highly unreliable by the fact that she made no mention of having held the lift until Peter Ray arrived in her evidentiary statement or in her oral evidence in chief. Such an action on her part would surely have been mentioned in one or both of those places if she had a genuine recollection of it. The plaintiff could offer no explanation for not having described her supposed action in this respect at any time earlier than her cross-examination: T 190.4 - .10.

55. The plaintiff had a strong motive to embellish her recollection in this way during cross-examination because it was made clear to her that she was under challenge as to whether she had had any opportunity to observe the height of the step created by the lift having stopped out of level. Counsel put to her early in the cross-examination that the lift door had shut behind her: T 184.5. From my observation of her in the witness box and from her educational attainments I find the plaintiff to be an intelligent woman who would have well understood the difficulty for her case if she could not establish that the lift had remained at Level 1 where she could have observed the height of the step.

56. The only contemporaneous record of what occurred tends to confirm Mr Ray’s evidence (that the lift was not held at Level 1 until he came out and locked it off there) and to rebut that of the plaintiff. At Ex D p 524 is an ISS Incident Report prepared by Mr Ray (T 371.50), signed by him and dated the day of the incident. The substance of the report reads as follows:

“It was reported by the property manager (Eugenie Schneider) to Peter Ray that she tripped on the lift sill exiting the lift on Level 1. Eugenie has indicated that the lift did not stop level with the floor causing a trip hazard. Eugenie indicated that she has injured her neck in the incident.

Peter Ray placed a service call to ThyssenKrupp Elevators for a technician to check and adjust lift N#1. Peter then removed the lift from service on the ground floor. The ThyssenKrupp technician arrived on site at 1300 and made adjustments to the lift. The lift was returned to normal operation at 1500. Service docket 352124. The lift was working ok when checked later in the afternoon.”

57. The fact that Mr Ray recorded only what the plaintiff told him about the lift not having stopped level with the floor and did not record any observation of the degree to which Lift No 1 was out of level is a strong indication that Mr Ray did not see the lift held on Level 1 by Ms Shneider in the position in which it had caused her to trip. Further, the report notes that Mr Ray “removed the lift from service on the ground floor” – not by locking it off at Level 1 where the plaintiff claims to have held it.

58. 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.

Findings of the ThyssenKrupp serviceman on 12 August 2008

59. ThyssenKrupp’s contemporaneous reports following the investigation by its serviceman of the malfunction of Lift No 1 on 12 August 2008 do not assist the plaintiff to establish the height of the out of level step upon which she tripped. As I have found that the lift was not locked off in the position in which it had been when the plaintiff alighted, the Thyssenkrupp serviceman could not and did not make any record of how far out of level it was when the incident occurred. The serviceman’s record for 12 August 2008 (incident number 256989 at Ex D p 493) records the customer complaint in these terms:

“(Peter Ray) Lift 1 not levelling on any floors. See Peter on arrival. ETA required”.

60. I find that this is an inaccurate record of Mr Ray’s telephone request for service. I accept his evidence that the only knowledge he had of the lift not levelling on 12 August 2008 was what the plaintiff had told him, which referred to the position of the lift on Level 1. I accept his evidence that he did not have any opportunity to see the lift’s accuracy of levelling at any other floor before he called it down to the Ground Floor and locked it off.

61. The service report summarises the findings and actions of the technician in these terms:

“Replaced up levelling selector contact. Adjusted up and down levelling selectors. Checked operations and couldn’t fault. Returned to service.”

62. A further serviceman’s call out report (No 257119) dated 13 August 2008 also appears at Exhibit D p 493. The request for service is recorded as: “(Peter) Lift 1 not levelling”. As stated at [51] Mr Ray had no recollection of making a second request for service of the lift on 13 August 2008. The author of this record was not called. The evidence does not permit me to find on the balance of probabilities that a second call in these terms was made. It is just as likely that the same ThyssenKrupp serviceman (Mr Palanisamy) decided to return to the building on 13 August 2008 because he had been unable to find a fault on the preceding day and because the matter was of some significance in that a lift passenger had been injured. If that is what occurred it would be quite consistent with the circumstances that ThyssenKrupp’s service record for the second visit should identify the call out request in the terms quoted above, intending thereby to refer to a single call out from Mr Peter Ray received the preceding day.

63. On 13 August 2008 the serviceman’s finding was:

“Adjusted levelling cam. Checked operations & returned lift back to service”.

64. ThyssenKrupp prepared a third party accident report on or about 12 August 2008 (Ex 2.1 p 352 – 354). This recorded the manner in which the accident occurred (evidently having been related to ThyssenKrupp by Mr Ray) in these 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)”.

65. In the same report, the remedial action taken was described as follows:

“Checked lift levelling on all floor (sic) 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”.

66. 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.

Characteristics and performance of the lifts at 20 Loftus Street

67. Both of the lifts in the building are of the same type and were installed in approximately 1972. This case concerns only Lift 1 and I will refer to its features in the singular, although they are equally applicable to the other lift which was side by side with it. The following description applies to Lift 1 as it operated from installation in 1972 up to the date of the accident and for some time after.

68. The lift mechanism was of a type known as “gearless traction”. An electric motor at the top of the lift-well powered a winch which raised and lowered the lift car on cables. A composite piece of mechanical and electrical machinery at the top of the well, known as the selector, was able to regulate the stopping of the lift. It received and was activated by electrical signals from the floor selector buttons in the lift car and from the call buttons in the lift foyers. By these means passengers were able to call the lift to a floor and, once inside it, choose where it would stop.

69. Uncontested evidence given by a highly qualified and experienced lift consultant, Mr JE Thompson, has established that there are a number of features of a gearless traction type lift system such as that described above which may cause the lift car from time to time to stop in a position where the lift floor is not precisely level with the fixed floor of the building at the destination selected. First, any of a number of influences could cause the voltage of the electricity supply to the electric motor to vary. This would translate into a variation of the speed at which the hoist would raise or lower the lift and, in particular, the speed at which the lift would level in to a particular floor. Variants in the levelling-in speed could result in the lift overshooting or failing to reach its ideal position in the lift-well.

70. Secondly, wear on certain components of the selector (referred to as “cams” or “pie plates”) could cause inaccuracy in the stopping position of the lift. Thirdly, weight sensors fitted under the lift-car floor could become inaccurate over time. This could cause the machinery to miscalculate the amount of power reduction required to allow the lift to slow in to a stop. The result would be, again, either overshooting or failure of the lift to reach its intended level.

71. In general terms Mr Thompson described the selector as “a mechanical device with electrical relays attached to it” and as being “mostly mechanical rather than electrical”. As a result of these features Mr Thompson’s opinion is that it was inherent in this type of lift that it would “from time to time provide poor floor levelling accuracy”. 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 Thompson 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 Thompson’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.

October 2006 Hazard and Risk Assessment by ThyssenKrupp

72. In their endeavour to attribute fault and legal liability for Lift No 1 having stopped out of level on 12 August 2008, the plaintiff and ThyssenKrupp relied heavily upon the Assessment which had been carried out by ThyssenKrupp in October 2006 with respect to the 20 Loftus Street Lifts (referred to above at [50]). These parties both asserted that Capital Investors knew of the Assessment and knew from it that Lift No 1 was at high risk of inaccurate levelling.

73. The plaintiff contended that this knowledge on the part of Capital Investors should lead to a finding that it owed a duty to lift passengers such as the plaintiff to exercise reasonable care to prevent such levelling inaccuracy from causing injury. The plaintiff’s case was that the scope of this duty of care extended so far as to require Capital Investors to replace the lift machinery with more modern components capable of greater levelling accuracy. ThyssenKrupp relied on the Assessment as showing that it had discharged its duty of care to the plaintiff by providing advice to Capital Investors of the risk that the lift would not level accurately and a recommendation that the machinery be upgraded.

72. The Assessment was prepared upon the basis of an inspection by one of ThyssenKrupp’s employees, Daniel Lewin, on 13 October 2006. A letter from Mr Lewin to Mr Ray dated 20 October 2006 proves that this Assessment was carried out at the request of Mr Ray. Mr Ray did not recall having made the request. I do not find that surprising given that he was asked about this subject nearly 9 years after the event and that his role in relation to the Assessment would have been minimal. I have found at [50] that he was a mere conduit in relation to it, with no responsibility to evaluate the Assessment or to make any decision about whether its findings should be addressed by the commissioning of new lift equipment or by refurbishment of the existing lift machinery or otherwise: T 379.29 – 380.14; 391.21 – 394.

73. At the time of the Assessment Mr Ray was employed by Resolve FM. In 2006 and continuing up to 30 June 2007 Resolve FM fulfilled much the same role as that undertaken by ISS under the Soft Services Agreement from 1 July 2007 (see [4]). Mr Ray changed employment from Resolve FM to ISS at about 1 July 2007. He said that in relation to obtaining an assessment such as that of October 2006, although he does not recall the document specifically, he was “like, the messenger”: T 390.40 – 391.17.

74. The author, Mr Lewin, is a qualified electrical lift mechanic. In 2006 he worked as a business development manager for ThyssenKrupp: T 457.5. 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: T 455.20. 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.

75. The Assessment was written up on a pro forma document prepared by the Australian Elevator Association. The several components of lift machinery to be assessed were pre-printed, each followed by a list of possible alternative assessments. Small circles next to these alternatives enabled one of them to be selected for each component assessed, by checking a circle.

76. The Assessment of October 2006 has a coversheet to show that it relates to Lift No 2 at 20 Loftus Street. However the evidence is that the two lifts were identically equipped and it would have been apparent to any reader of the Assessment that it was equally applicable to Lift No 1. Mr Lewin confirmed that the report related to both lifts. The Assessment contained this entry, being No 5 of 83 entries, under the heading “Stopping/Levelling Accuracy”:

“Requirements to be checked: floor levels to be within +/- 10mm and levelling accuracy of +/- 20mm.

Requirement fulfilled: No [selected by checking a circle]

Level of risk: High

Corrective action(s): 1. Change to regulated drive [selected by checking a circle.]

79. The word “High” against “Level of Risk” was pre-printed on the form. Mr Lewin explained entry No 5 at T 442.35 - .42 in these terms:

“A. The floor level to be within plus or minus 10 millimetre is on stopping, so either within 10 mil tolerance above floor level, or 10 mil tolerance below the floor level, that’s stopping. Now the 20 mil accuracy, of levelling accuracy, with that particular technology you can have a shift in weight through a number of people leaving a lift and the level could - the lift could potentially jump out of floor level. Now if it goes above 20 mil the lift would have to relevel back to floor level. Anything below 20 mil the lift would not relevel and then the doors would close and then the lift would take off.”

80. At T 455.33 - .36 he gave this answer:

“Q. As at 13 October 2006 the lift could well have been levelling perfectly at that time?

A. That's correct, but that technology was, was - it was possible that the levelling could, could change at any, at any time, given time.”

81. Mr Lewin could not recall whether he actually rode the lifts to all floors or to a sample of floors to spot check the levelling accuracy of Lift No 1 or Lift No 2 in the course of preparing the Assessment (T 448 – 449). He was certain that he would not have checked the re-levelling accuracy (as explained at [88]): T 448. With respect to his marking the “No” circle against the requirements for levelling and re-levelling he said at T 449.2:

“A. I’ve put in the “no” circle because there’s no way you can guarantee on that technology that the floors - the floor levelling will be within that tolerance.”

Receipt of the Assessment by Mr Ray

82. The letter of 20 October 2006 from Mr Lewin to Mr Ray to which reference has been made at [74] is sufficient to show that Mr Ray received the Assessment. A further letter of 8 November 2006 from Mr Lewin records that he met with Mr Ray and discussed the Assessment with him at about that date. This second letter sets out quoted prices for some improvements to the lifts which Mr Lewin had recommended. I infer that Mr Ray had requested a quotation of prices for these selected items during his meeting with Mr Lewin.

83. Mr Ray agreed that if he had seen an assessment referring to a lift levelling issue such as item No 5 quoted at [78] he would have regarded it as significant because of the potential for a lift passenger to be injured “stumbling out of the lift”: T 393. However he said that his opinion on the best way to deal with any such issue “may or may not have been asked” by his superiors: T 393.39.

Capital Investors’ imputed knowledge of the Assessment

84. There is no direct evidence that Capital Investors ever received the Assessment. Nor is there definitive evidence that it did not. On the last day of the hearing Capital Investors tendered its verified list of discoverable documents as purported proof that the Assessment was not received: it was not one of the documents on the list. The admissibility of the verified list for this purpose was disputed. I have concluded that the list of documents should be received but that it is only evidence of what was and was not discovered. The list of documents does not exclude the possibility that the Assessment was received but was subsequently mislaid and that the facts of its initial reception and of its subsequently being mislaid are not known to personnel of the company amongst whom due search has been made for the purposes of discovery in these proceedings.

85. I consider that it is immaterial whether any employee or officer of Capital Investors actually ever received the Assessment. I find that it was certainly received by Resolve FM, through Mr Ray, and the knowledge of Mr Ray and of Resolve FM must be imputed to Capital Investors because Resolve FM obtained the Assessment in the course of acting as the agent of Capital Investors in circumstances in which it was Resolve FM’s duty to pass on such information to Capital Investors: Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 658. The facts relevant to the application of that principle are considered in the following paragraphs.

86. This case is not concerned with a principal who owed a duty of investigation and disclosure to a third party and who delegated the disclosure function to an agent, as in Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in Liq) [2003] HCA 25; (2003) 214 CLR 514. It is clear that the agent’s knowledge is attributed to the principal in cases of that type. Where the principal is not under such a duty to a third party to investigate a factual question and to make disclosure in relation to it, information received by an agent during the subsistence of the agency will likewise be attributed if it has been received in the agent’s capacity as such and if the terms of the agency require that information of the kind should be provided to the principal: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [126], [127]; El-Ajou v Dollar Land Holdings Plc (No 1) [1994] 2 All ER 685 per Hoffmann LJ at 703.

87. As referred to at [3], on 20 March 2003 Capital Investors as “Principal” entered into a Comprehensive Maintenance Contract with ThyssenKrupp, which continued in force in October and November of 2006 (Ex 2.1 at Tab 1). Clause 1 of this contract required ThyssenKrupp to perform the services described in Attachment B (Ex 2.1 pp 29 – 37). Clause 2 provided that Capital Investors nominated Resolve FM as “Superintendent” to “act on [Capital Investors’] behalf and exercise any of [Capital Investors’] powers and duties under this contract”. Clause 2.2 required that ThyssenKrupp “must communicate directly with [Resolve FM] as the Principal Nominated Representative [of Capital Investors] in relation to all matters under this Contract unless otherwise notified to the Contractor under Clause 2.1”. The Contractor’s obligations, set out in Clause 5, included that ThyssenKrupp would “communicate with [Capital Investors] on all matters relevant to the Contract”.

88. The effect Clauses 2.2 and 5 combined is that ThyssenKrupp was required to communicate with Resolve FM, which would suffice as communication with Capital Investors, in relation to all matters relevant to the contract.

89. It is apparent from the evidence of Mr Lewin regarding the circumstances in which he completed and provided the October 2006 Assessment (see [74] and [76] above) that this was not done pursuant to the Comprehensive Maintenance Contract of 20 March 2003 between Capital Investors and ThyssenKrupp. There is no clause of that contract which required the preparation of such an assessment. Nevertheless, in my opinion the provision of the Assessment was a communication with Resolve FM in relation to a matter under the Comprehensive Maintenance Contract. In particular item 5 of the Assessment, drawing Resolve FM’s attention to the “high risk” that the lifts at 20 Loftus Street would not level to within plus or minus 10mm and that replacement of the controlling mechanism with a “regulated drive” would be required to address this, clearly related to “matters under this Contract”.

90. I find that by virtue of Resolve FM’s status as the “Superintendent” and “Principal Nominated Representative” under the Comprehensive Maintenance Contract, once information of this nature came into Resolve FM’s hands from ThyssenKrupp, whatever the occasion, Resolve FM was bound to communicate it to Capital Investors. Capital Investors is therefore to be treated as having acquired the knowledge by operation of the principle in the cases cited at [85] and [86].

Capital Investors ought to have known of the limits of levelling accuracy

91. Even if knowledge of item 5 in the Assessment were not to be imputed to Capital Investors upon the basis outlined above, the limitation on levelling accuracy inherent in the mechanism of Lift No 1 was something of which Capital Investors, as the entity in control of the lifts and of the foyer spaces adjacent to them, ought to have known. A company occupying the position with respect to these lifts that Capital Investors did ought reasonably to have appreciated that levelling inaccuracy could be hazardous to lift passengers. 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.

92. The entity to which such enquiry would obviously have been directed would have been ThyssenKrupp. It is apparent from the evidence of Mr Lewin given in these proceedings and from the contents of the October 2006 Assessment which he authored that, if asked, he would have readily informed Capital Investors of the propensity for unpredictable and intermittent out of level performance. These lifts were installed in the early 1970s (Ex 2.1 p 379). A reasonable occupier in the position of Capital Investors 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.

Limited significance of Capital Investors knowledge of levelling inaccuracy

93. Knowledge of item 5 in the Assessment, attributed to Capital Investors through the agency of Resolve FM from about October 2006, does not equate to knowledge in Capital Investors of a high risk of accident or injury. The high risk that was signified by item 5 was that of the lift stopping out of level by more than 10mm. Mr Lewin was not qualified to give any opinion as to the degree of risk to a lift passenger from any particular height of step created by the lift stopping out of level. Even an expert in biomechanics could only comment upon the degree of risk of a trip or fall by reference to each of the various possible step levels which might be created by inaccurate stopping of the lift. The Assessment did not convey and was not intended to convey that the out of level condition which might at times arise would pose a high risk of injury.

94. Similarly, that which I find Capital Investors ought to have known is that Lift No 1 might stop out of level but not that this would necessarily be dangerous to passengers irrespective of the degree of the levelling inaccuracy.

No contractual standard of lift levelling in the Comprehensive Maintenance Contract

95. Item B.2 of the services listed in Attachment B (at Ex 2.1, p 29) required that for the duration of the contract ThyssenKrupp would maintain the lifts and their performance “within the tolerances specified in the performance criteria endorsed ‘Standard of Performance’ in accordance with Clause B.7”.

96. Clause B.7.1 (Ex 2.1 at p 32) stipulated that an initial survey “Check List” was to be prepared and endorsed “Standards to be Maintained”. The document was required to be “signed and dated on the same day by an authorised officer of” Resolve FM and of ThyssenKrupp. Clause B.7.1 continued as follows:

“These Check Lists shall be evidence of the condition and performance of the installation and within the tolerances specified in the Check Lists, shall be the condition and performance to be maintained throughout the Contract Period”.

97. Clause B.7.1 further required that the endorsed Check List should be retained in duplicate, one copy by Resolve FM and one by ThyssenKrupp and included in Attachment D to the contract. There is such an initial survey check list in Attachment D (Ex 2.1 at pp 56 – 58). However this does not appear to have been signed and adopted by the parties as envisaged in Clause B.7.2, following upon the execution of the contract.

98. The initial survey check list provides (in item J at p 58) that the lifts’ “Rated Levelling Accuracy” was “+ or – 12mm”, that the “Allowable Tolerance” was “+ or – 5%” and that the “Measured” value was “+ or – 10mm”.

99. I am not satisfied on the balance of probabilities that this check list was ever adopted as required by Clause B.7.2 in order for it to have contractual effect. Items B and C of the initial survey check list at p 56 make provision for signature by the representatives of Resolve FM and of ThyssenKrupp, respectively. No signatures have been affixed. Even if it was adopted contractually, the check list does not explain what is meant by “Allowable Tolerance”. In particular, it does not explain what the value “+ or – 5%” means in relation to “Allowable Tolerance”. It begs the question: 5% of what? The check list does not explain what, if anything, is the difference between the “Rated Levelling Accuracy” and the “Measured” value.

100. Further there is nothing in the initial survey check list to state whether any particular levelling accuracy is required to be achieved one hundred percent of the time, given the evidence of Mr Thompson about the limitations of this lift equipment (see [69] – [71]). This must be regarded as a significant uncertainty concerning the operation of the check list and therefore regarding the stringency of ThyssenKrupp’s obligation. Levelling to within plus or minus 10mm or 12mm one hundred percent of the time was unachievable.

Measures required to improve the levelling accuracy of the lifts

101. Mr Lewin and Mr Thompson gave evidence that reliable levelling within a tolerance of plus or minus 10mm could only be achieved by completely changing the “driver” or controller of the hoist system and the selector system to more modern technology: T 490.24; Lift Technician’s Conclave Report, Ex H, para 8; T 439.30, 440.35 – .46. This technology was first introduced for new and replacement lift installations from about 1983 (T 477.26, 482.48). The newer technology uses a variable frequency drive unit which controls an electronic motor for the hoist by electronic means. This system is quite different from that which controlled the hoist for these lifts as described at [67] to [71]: T 439.33, 477 – 478, 481.1 – .17.

102. Replacement of the drive units for these lifts would cost $100,000 each (T 485.15). Making this change would also require replacement of the gearless hoist of each lift, which would increase the cost “exponentially”: T 485.30 – .40. The subject lifts were replaced after 2008 at a final tender price of $475,200: Ex 2.1 p 438. Even with this complete change of machinery levelling accuracy could not have been expected to be any greater than plus or minus 6mm (Ex H, para 8).

Performance and maintenance of lifts immediately prior to 12 August 2008

103. Mr Ray had occupied his office on Level 1, 20 Loftus Street for about 2 years prior to the accident. Before that he had had an office at 50 Bridge Street for a year and from there he visited the subject building every day. Thus for three years in total before the incident Mr Ray had daily opportunity to observe the performance of the two lifts and he “didn’t find any issues” (T 373.25). He never saw either of the lifts stop on a floor out of level in any degree, let alone by one and a half to two inches. When he had seen a lift stop out of level in one of the other buildings nearby, for which he was also responsible, he had taken it out of service until a technician had been called to site and had corrected the lift’s function.

104. Notwithstanding this evidence there are some records of ThyssenKrupp which show instances of levelling inaccuracy of one or other of the 20 Loftus Street lifts in the three years prior to the incident. These occurrences were very few.

105. On 16 August 2005 there was a report to ThyssenKrupp: “lift 1 jumping and not level on M lvl” (presumably the mezzanine level): Ex D, p 472. The serviceman checked the lift’s operation and could find no fault. He returned it to service.

106. On 15 January 2008 Lift No 1 was reported by Mr Ray as “stuck on Level 9 and not levelling”: Ex D, p 477. The technician found that a “shutdown selector” had to be adjusted.

107. Those are the only instances of an out of level problem being reported. From 29 September 2003 to July 2008, a period of nearly five years, there were 32 service calls for Lift No 1. That is, an average of one every seven and a half weeks. All but those on 16 August 2005 and 15 January 2008 involved faults other than levelling. Many of the other fault reportages resulted in a technician finding nothing wrong with the operation of the lift on arrival.

108. Similarly with Lift No 2 there were 36 callouts over a five year period from 27 August 2003 to 22 July 2008, an average of one every seven weeks. Again with the one exception of 16 August 2005 these concerned faults other than levelling and in many instances no deficiency of operation was found upon inspection. On 16 August 2005 Lift No 2 was reported as “jumping and not level on M lvl”: Ex D, p 484.

109. These records show that despite the inherent limitations of the technology of these lifts, giving rise to a propensity to level inaccurately, faults of that nature occurred extremely rarely. The lifts did not malfunction with respect to levelling at a frequency which indicated a lack of adequate maintenance to keep them working to the best standard reasonably attainable.

255. At T 500 – 501 Dr Sutton further explained his diagnosis of the plaintiff’s condition, both before and after the incident of 12 August 2008, as “an idiopathic pain disorder”. That is, pain that could not be explained in terms of trauma or degeneration sustained. He considered that it is pain the distribution of which is more widespread than would be expected from a particular insult or site of degeneration. At T 513.32 the doctor explained the plaintiff’s perceptions of pain as recorded in the pre-accident reports, upon the basis that she was “perceiving pain from her cervical spondylosis in her brain and her brain is doing something that is causing referred pain elsewhere and referred sensory symptoms elsewhere. … This is a brain issue”.

256. At T 515.5, with reference to Dr Garrick’s report of 17 March 2008, Dr Sutton expressed the opinion that the descriptions in that report of sensory symptoms in the face, which could not be organically explained by reference to the condition of the cervical spine, indicates that “this is an evolving problem with the brain, and not necessarily with the spinal cord”. As at March 2008 Dr Sutton was of the opinion that the plaintiff had

“a relapsing progressive chronic widespread pain syndrome, which [was] idiopathic in nature. It may have been triggered by disc degeneration 12 years earlier, but there has been no clinical, by which I mean clinical examination or imaging, findings to support any significant pressure on the spinal cord or the nerve roots, and that the evolution of these symptoms are consistent with a cerebral aetiology that is poorly understood or not understood”.

257. Dr Sutton’s evidence in this respect is entirely plausible and I accept it. It is consistent with the descriptions of wide ranging pain and other sensations which the plaintiff gave to Drs Sheehy and Garrick over the years prior to the accident, which none of the specialists has been able satisfactorily to attribute to any organic cause. For example pain, discomfort and altered sensation in her legs has been intermittently complained of by the plaintiff. But in the absence of any alteration of the cord signal in the spine, these symptoms are not explicable as in any way organically or mechanically related to the progress of her cervical spondylosis. Similarly, the plaintiff has from time to time, both before and after the accident, given evidence of various distributions of pain, paraesthesia and other sensations in her arms which are non-dermatomal and/or have occurred in the absence of any evidence (either from an MRI scan, from clinical examination or from provocative testing) of nerve root irritation or compression. Dr Sutton describes a recognised condition of widespread chronic idiopathic pain which occurs in a significant proportion of patients who suffer insult or degenerative disease to the lumbar or cervical spine. I find there is ample evidence to support Dr Sutton’s analysis that the plaintiff was such a patient up to the date of her accident and I accept his opinion in this regard.

258. At T 523.32 Dr Sutton expressed the opinion that it was not plausible that there had been any mechanical disruption caused by a trip of the nature described by the plaintiff which would contribute to the worsening of the symptoms which the plaintiff had described to her treating doctors up to the date of the accident. At T 524 – 525 Dr Sutton gave the opinion, in accordance with that of Dr Farey, that the retrolisthesis at C6/7 which was first noted in an MRI report post the accident would not have been caused by the accident. Dr Sutton did not identify anything in the post-accident MRI scans which indicated a physical deterioration or alteration that could be attributed to the trip. This also is consistent with Dr Farey’s evidence.

259. In Dr Sutton’s view all that occurred as a result of the trip on 12 August 2008 was a short-term aggravation of the plaintiff’s chronic widespread pain syndrome:

“…based on reports in the provided documentation it is apparent that Ms Schneider had at least a ten year history of a relapsing – remitting pain disorder [elsewhere referred to as a chronic widespread pain syndrome]. There was an aggravation of the condition by the trip that occurred on 12 August 2008, but symptoms and neurological signs did not alter appreciably as a result of the trip and the pain continued to vary in intensity.”

260. Further, in supporting the view that the trip incident did not cause any injury or symptoms which necessitated the spinal fusion operation carried out by Dr Farey on 28 March 2012, Dr Sutton said this:

“Surgery was performed based on symptoms and signs that had not altered appreciably in over ten years. There was no abnormality on clinical examination or MRI that suggested surgery was necessary and the distribution of symptoms and signs indicated a diagnosis of a chronic widespread pain disorder rather than a significant right C6 radiculopathy. Surgery has not resulted in any significant improvement in symptoms.”

261. I do not express any opinion on the correctness of Dr Farey’s advice to carry out the cervical spinal fusion on 28 March 2012 upon the basis of the history he was given. Medical diagnoses and recommendations for treatment, like any other form of professional advice, can only be judged having regard to the information given. The history given to Dr Farey was materially deficient in respects already noted. I accept Dr Sutton’s evidence that when the entire picture of pre-accident symptoms is taken into account, the basis upon which Dr Farey formed his opinions and recommended treatment falls away.

262. I accept Dr Sutton’s analysis, at T 526 – 529, that the histories taken by Dr Farey in his sequence of reports from 18 February 2009 onwards considered against the earlier reports of Drs Sheehy and Garrick show that there was no more than “a transient deterioration of symptoms in relation to the episode of 12 August 2008” and that thereafter the MRI imaging showed “minor changes… which may well be just age-related and degenerative”. I accept Dr Sutton’s conclusion that Dr Farey’s reports record no evidence of nerve root compression at C5/6 at least up to February 2010. Dr Sutton disagrees with the conclusion in Dr Farey’s report of 20 May 2011 that C6 nerve root compression was indicated by an increase in right arm pain upon extension combined with rotation and lateral flexion of the patient’s neck. I accept Dr Sutton’s evidence that, even accepting these clinical signs as sufficient evidence of nerve root compression, given the date of the finding – nearly three years after the incident – this could not be “connected back” to the trip on 12 August 2008 either “directly or indirectly” (T 530.40).

263. The fact that the plaintiff has received some amelioration of her arm pain since the fusion operation does not cause me to doubt or reject Dr Sutton’s evidence that that pain, when experienced, was idiopathic. I accept Dr Sutton’s opinion that the perceived improvement may well be purely psychological: T 532. The significance of Dr Sutton’s diagnosis, based on the pre-accident reports, of a chronic widespread idiopathic pain syndrome is that this is not something which would likely be affected in a permanent way by a trip incident such as occurred. Also, this diagnosis explains the essential uniformity of the plaintiff’s condition before and after 12 August 2008. In both periods, she has had widespread, “relapsing – remitting” pain, not organically explicable. Nothing has changed.

264. Dr Sutton took part in a conclave on 9 July 2015, together with Dr David Millons and Dr John Davis. Dr Millons is a surgeon who provided two expert reports for the plaintiff. Dr Davis is a specialist in occupational medicine who also provided reports for the plaintiff. In the report of that conclave Drs Millons and Davis recorded their agreement that there was a one-third contribution to the plaintiff’s present medical condition from her pre-existing condition. In other words, two-thirds is attributable to the accident.

265. The report also states that “Dr Ian Sutton indicated that 10% was due to the incident and the majority was due to the pre-existing condition”. His opinion was elaborated more fully as follows:

“Dr Ian Sutton felt that the current condition reflected the pre-existing and other medical co-morbidities. He felt from the description of the injury that there would have been a temporary exacerbation of a pre-existing condition and did not feel that there was any mechanism that could explain why there had been a severe and progressive deterioration on the basis of minor mechanical trauma that would have been sustained at the subject incident. He noted that the fact she had got worse after surgery, when surgery should have been a curative condition, suggested that the presentation was typical of a number of patients who end up in a spiral of chronic widespread pain syndrome which cannot be directly attributed to such a minor mechanical injury.”

266. In his oral evidence Dr Sutton was asked to reconcile the 10% attribution to the accident with the other views that he recorded in the report (at T 535). He said that he did not wish to adhere to the 10% attribution. At T 536 he said that he considered there was “a couple of weeks of aggravation” and that he did not attribute any proportion of her ongoing symptoms to the incident. At T 553 Dr Sutton explained that he thought it was his obligation in the conclave to be conciliatory towards the other experts and to try to arrive at a compromise position. I accept that Dr Sutton misapprehended his obligations in the conclave and the fact that he accepted a 10% attribution in the conclave and then withdrew it in oral evidence does not cause me to have any reservation about his evidence in that respect or generally.

Other expert reports in orthopaedic and neurological disciplines

267. As mentioned, Drs Davis and Millons attributed the plaintiff’s post-accident symptoms and disabilities to the accident as to 66%. Dr Higgs, an orthopaedic consultant and biomedical and forensic engineer, provided a report under engagement by the plaintiff’s solicitors. He attributed the plaintiff’s symptoms and disabilities as to 90% to the accident. Dr Farey attributed 50% to the accident. Dr Wallace (an orthopaedic surgeon engaged by the Workers Compensation Insurer of Office & Industrial) and Dr Evans (an orthopaedic surgeon engaged by the solicitors for ISS) agreed with Dr Farey as to 50%. In view of this divergence of opinion I cannot take any of these percentages at face value. I must revert to the underlying reports of each expert to ascertain the basis of their respective views. I have already done this in relation to Dr Farey.

268. Dr Davis, in a report of 14 December 2011, recorded the results of his examination of the plaintiff on the preceding day and summarised radiological reports from 6 March 2009. His only reference to the long pre-accident history of the plaintiff’s neck pain and wide-ranging complaints of pain in her limbs is as follows:

“She also has a long history of suffering with cervical symptoms which commenced in early to mid-1990s. She reports these symptoms as being pain and stiffness with occasional accompanying tingling and numbness affecting both hands, although greater on the right side. Her symptoms are quite variable although there was a flare up in 2000, at which time she was referred to Dr Ray Garrick, a neurologist, who treated her with Prednisone and arranged MRI scanning. This treatment resolved her symptoms to a significant degree, and although she did suffer with some variable ongoing difficulties these were intermittent in nature and did not impact significantly on her day to day activities”.

269. This is a materially understated reference to the pre-accident history. Dr Davis’ report gives no indication that a full version of the report of Dr Sheehy of May 1997 or the numerous and detailed reports of Dr Garrick had been provided to him or reviewed and taken into account. Nor does Dr Davis’ report contain any indication that he was informed of or took into account the course of symptoms identified to Dr Farey and the sequence of neurological and clinical indications which Dr Farey found during his post-accident examinations. Dr Davis’ report of 14 December 2011 therefore does not address the important similarities between the plaintiff’s pre-accident condition and her post-accident condition, as analysed by Dr Sutton.

270. In the absence of any reasoning from Dr Davis showing that he has considered and dealt with the entirety of this relevant data I cannot accept his conclusions that the plaintiff “suffered significant aggravation of her [lower cervical disc] injury when she jarred her neck when she tripped getting out of the lift on 12 August 2008”. I do not accept Dr Davis’ view that there has been “a considerable increase in intensity of her symptoms and in her degree of impairment associated with the neck where there is some instability at C5/6 with retrolisthesis and also disc injury at C6/7 with C6 nerve root impingement and clinical signs”. Dr Davis was not in a position to express this opinion with any weight or persuasiveness in the absence of (a) recognition by him of the pre-accident and post-accident detailed histories, multiple MRI scans and reports of clinical examinations and (b) any reasoning to show where the difference in “intensity” lies.

271. The available detail of the course of the plaintiff’s condition before the accident, including symptoms of arm and lower limb pain not explicable by reference to clinical signs or MRI scan results, coupled with the continuing intermittent nature of her arm pain after the accident in the absence of objective evidence of nerve root compression for most of the time, makes the issue of whether the accident contributed to the plaintiff’s symptoms and disabilities and if so in what degree a complex one. It requires careful analysis of all available data with close attention to the chronology. I find Dr Davis’ brief reference to the pre-accident condition, followed by an assertion of aggravation and of increased intensity of pain, inadequate and unconvincing. I consider that his conclusions have been refuted by Dr Sutton’s more thorough methodology and analysis.

272. Dr Davis prepared a second report dated 29 October 2013. At that time he re-examined the plaintiff and was provided with reports of Dr Farey from 11 January 2012 onwards, but not with those of 2009, 2010 and 2011. His second report suffers from the same weakness as the first. I cannot rely upon the conclusions in it, which substantially repeat the conclusions expressed at 14 December 2011.

273. The final report from Dr Davis is dated 8 July 2015, taking into account a further examination of the plaintiff. He did not alter or retract his earlier expressed opinions. He added that it was

“highly likely that she has also developed a chronic pain syndrome as well as severe depressive symptoms as a result of her continuing pain and inability of her medical practitioners’ to afford her an acceptable degree of relief”.

274. Absent a thorough consideration of the pre-accident reports Dr Davis could not appreciate that, as Dr Sutton has shown, the chronic pain syndrome was established well before the accident and the plaintiff’s history shows no material change from the pre-accident symptoms and diagnosis. As for Dr Davis’ attribution of 66% causation of the plaintiff’s ongoing condition to the accident, no reasoning whatsoever has been provided to support this figure and I place no weight upon it.

275. Dr Millons’ report of 27 March 2014 is affected by the same considerations as apply to the reports of Dr Davis. He considered reports of Dr Garrick of 2000 and of 17 March 2008 and radiological studies of 5 July 2000 and 20 September 2008 and later. He has undertaken no analysis of the full course of reporting of symptoms and clinical examinations, as set out in the pre-accident reports of Drs Sheehy and Garrick. He has not compared that course of reporting with the reports of Dr Farey’s examinations post the accident. His bald conclusion that the plaintiff has “multi-level constitutionally based attritional changes in the cervical spine which appear to have been significantly aggravated by an incident at work in June 2008 (sic) with symptoms continuing thereafter” is in my view invalidated by what is in fact a continuity of the plaintiff’s condition before and after 12 August 2008.

276. In light of the pre-accident history Dr Millons’ statement that the “incident appears to have been a significant aggravation and the main cause of her ongoing pain thereafter” is no more than an unreasoned and unsupported assertion. Dr Millons’ reports of 22 April 2014 and 3 May 2015 do not make up the deficiency of reasoning to support his views. As with Dr Davis, his support at the conclave for 66% attribution of symptoms to the accident is unexplained.

277. Dr Higgs’ report of 23 June 2010 is expressly based upon his “objective findings” following examination of the plaintiff that day. He came to the following conclusion:

“My consideration of all the evidence has caused me to form the conclusion the injury incident that occurred at work on or about 12/08/08 has been cause for Ms Schneider to suffer from permanent aggravation to pre-existing, and co-existing, cervical spinal degenerative pathology. The permanent aggravation that has been suffered has caused Ms Schneider to suffer from more severe neck pain and to suffer also from a continuing right sided C6 (predominantly) radiculopathy… My consideration of all of the evidence has caused me to form the conclusion that work is the substantial contributing factor to Ms Schneider’s injury and to her present condition. However I have formed the conclusion that pre-existing, and co-existing, degenerative cervical spinal pathology is partly causal for any impairment of cervical spinal function. It is clearly evident that pre-existing, and co-existing, cervical spinal pathology has suffered aggravation and the injury incident that occurred on or about 12/08/08 can be considered as being causal for that aggravation.”

278. In reaching this conclusion the only account taken of the plaintiff’s prior history is the following:

“The past history of this case is relevant. Ms Schneider has admitted that she has previously suffered from neck pain. The lady’s history of neck pain extends for a little more than 10 years. The neck pain has at times required steroid therapy (Prednisone). The lady’s neck pain has previously been associated with the suffering of upper extremity brachialgia that has been cause for her to experience sensations of numbness and tingling in the fingers of the right hand.”

279. Dr Higgs had received copies of the reports of Dr Garrick of 7 July 2000, 4 September 2001, 17 March 2008 and 25 September 2008 (two reports of the last-mentioned date). He had also received copies of Dr Farey’s reports of 18 February 2009, 30 October 2009, and 11 February 2010. However his own report does not address these in any detail and does not acknowledge the apparent continuity of the plaintiff’s condition which the pre-accident and post-accident medical reports show. He has not provided any explanation of why he considers there to be a lack of continuity from before the accident to after it.

280. Subsequent reports of Dr Higgs do not make good this gap in reasoning and explanation. In examination-in-chief at T 594.31 – 596.19 Dr Higgs was referred, in a general way, to the fact that the plaintiff had been under the care of Dr Garrick between 2000 and 2008. He was reminded that the plaintiff had worked for most of that period albeit that she had returned to her doctor with neck pain from time to time, including in March 2008. Dr Higgs expressed the view that “one could question whether there is any persuasive evidence to support an opinion that this lady, in fact, suffered from any impairment prior to the accident” (T 595.13).

279. I reject that proposition. I am comfortably satisfied that the symptoms described in the reports of Drs Sheehy and Garrick from prior to the accident would have interfered with her capacity for work, given that they included painful and significant restrictions of movement of the neck, brachialgia, feelings of weakness in the legs, a tendency for the right deltoid and bicep muscles to give way and other like symptoms. Dr Garrick’s report of 22 April 2004 recorded that “her desk and computer work is an aggravating factor”. As recently before the accident as 17 March 2008 Dr Garrick recorded her symptoms as including “right sided anterior and cervical lower neck pain and some movement restriction”, with “altered sensation over the back and extending to the right side of the face and brachialgia with numbness extending down the right arm particularly to the thumb”.

280. Dr Higgs’ answers at T 594 – 596 are expressed in terms of legal conclusions. He referred to “apportionment” and to the “permanent impairment guidelines” of WorkCover. At T 598.16 Dr Higgs proffered a consideration of the case “in light of that other legal doctrine that’s represented by the eggshell skull case”. Nowhere in his oral evidence did Dr Higgs descend to a careful comparison of the pre-accident reportage of symptoms with the post-accident reportage and results of clinical examinations as recorded in Dr Farey’s reports. When cross-examined as to what material Dr Higgs had seen in relation to the plaintiff’s condition prior to 12 August 2008 he replied: “I basically rely on what the client has told me at the interview” (T 598.24). This was reconfirmed at T 599.18 – .23. Regarding his understanding of an absence of impairment pre-accident I have taken into account his cross-examination at T 597.48 – 598.9; 600.10 – .15.

281. Although it was made apparent, from the tender of Exhibit J, that Dr Higgs was provided with pre-accident reports of Dr Garrick, he did not recall during his cross-examination having been provided with them and evidently did not pay them significant heed. He gave this answer at T 602.4:

“Well all the lady advised me was that she saw Dr Sheehy in May 2009. Whether or not she saw 100 neurosurgeons in the past really is not of any great importance to me, because the matters I was presented with was the situation where a lady suffered injury in a trip and fall event coming out of a lift when the lift and the floor level were not at the same level and that she tripped and suffered a movement that was associated with an experience of neck pain”.

284. This dismissal of the prior history appears to me unjustifiably cavalier. It flows from Dr Higgs effectively having simply assumed that an injury was sustained in the trip and that it caused subsequent symptoms, rather than looking to the mass of detailed evidence which was available to throw light upon whether the symptoms which followed the accident may have been no more than a continuation of what had been suffered for years before, without causative influence of the trip itself. Dr Higgs continued in the same vein at T 602.27:

“It wouldn’t have mattered whether she’d – how many people she’d seen. The point I’m making is that when she stepped out of that lift and tripped and fell and… suffered a sudden movement, the lady thereafter became symptomatic. Now, as far as I’m concerned or unless I’m living on another planet, … but for that incident this lady would not have suffered pain” (emphasis added).

285. The word “thereafter” in this answer introduces a false premise. With respect I find Dr Higgs’ approach as reflected in these answers superficial and unhelpful.

286. Dr Higgs’ report made no reference to the alternative analysis of the plaintiff’s pre-accident symptoms by Dr Sutton, namely that it showed idiopathic widespread chronic pain disorder: T 600.10 – .15. When this conclusion was put to Dr Higgs for his comment, he was dismissive, referring to it as a “spurious sort of descriptive”: T 600.23.

287. At T 602 – 608 counsel for Capital Investors put to Dr Higgs a number of the pain and altered sensation symptoms of which the plaintiff had complained prior to the accident which did not appear capable of explanation by reference to the physical condition of the cervical spine (as revealed by MRI scans or by clinical examinations). Counsel in effect put to Dr Higgs that these symptoms indicated, as Dr Sutton has opined, a chronic widespread idiopathic pain disorder, pre-dating the accident and capable of having continued thereafter so as to produce similar symptoms without supporting an inference that the accident itself had been causative of them. In broad terms Dr Higgs’ response was that all symptoms of pain or altered sensation have to have an organic explanation and that “there’s no such thing as this idiopathic pain disorder… pain is something that people may complain of, suffer from, that can, if we look far enough, be found to be associated with a cause”.

288. I reject this evidence. I accept the opinion of Dr Sutton that there is a recognised phenomenon of idiopathic pain disorder which involves the patient feeling symptoms of pain or altered sensation as an artefact of brain activity which is not completely understood in medical science and where the symptoms cannot be associated with identifiable organic cause.

289. The report of Dr Wallace dated 18 November 2008 is based on examination of the plaintiff the preceding day. His view was that there was no more than a “temporary aggravation of pre-existing cervical spondylosis”. He considered that this aggravation had continued up to the date of his report, a period of three months. I prefer Dr Sutton’s evidence as to the length of the temporary aggravation, namely two weeks, because he had the benefit of reviewing the entire post-accident sequence of events as reported by Dr Farey whereas Dr Wallace’s formation of opinion predated most of Dr Farey’s sequential reports. Also, Dr Wallace has not provided any analysis of the extensive pre-accident specialist reportage, nor identified in any detail what was different and additional in the plaintiff’s post-accident symptoms – whereas Dr Sutton has made that comparison. Dr Wallace’s view expressed in the conclave report that the plaintiff’s “past and future restrictions”, post-accident, were 50% attributable to the incident on 12 August 2008 is not supported by any supplementary report from Dr Wallace or in any other way. He did not give oral evidence.

290. Dr Evans’ report dated 23 November 2013 refers to Dr Sheehy’s report of May 1997 and to the MRI scan reports of 5 July 2000, 20 September 2008 and 11 June 2013. He came to the following tentative conclusion:

“Ms Schneider’s complaints and symptoms are attributable to the accident by way of aggravation of a pre-existing condition. In this respect I note that although she had been having problems from about 1995 there appears to have been a significant deterioration in the MRI scans between 2000 and September 2008 following the accident. This is a long time of course but nevertheless there was an alteration and this could have been the result of the injury. It is often difficult to be sure however.

…

It is unusual for a condition to deteriorate to the extent that one requires major surgery and so I would have to say that although it is possible [that this occurred without influence from the incident of 12 August 2008] it is at least equally likely that her condition deteriorated because of the accident”.

291. No other doctor, including Dr Farey has suggested that the differences between the MRI scan results for 5 July 2000 and 19 September 2008 could be relied upon as indicating that the intervening accident, on 12 August 2008, had caused physical deterioration which was observable in the scans. This is an inadequate basis for the expression of any view and Dr Evans’ tentativeness with respect to his conclusions is understandable. However his subsequent adoption of 50% as the extent of contribution from the accident to the plaintiff’s ongoing symptoms, as expressed at the conclave, is not understandable. No reasons for his view as to this quantum appear in the conclave report and he has given no supplementary written report or oral evidence to explain himself. I do not accept Dr Evans’ opinions, in his report or as given in the conclave, as a foundation for a finding that the accident had any effect beyond the two week period of aggravation of symptoms which Dr Sutton has accepted.

Psychiatric evidence

292. The evidence tendered concerning the plaintiff’s psychiatric state includes reports of Dr Peter Klug, Forensic Psychiatrist, dated 30 September 2013 and 8 July 2015 (obtained by the plaintiff); a report of Dr Alex Apler, Forensic Psychiatrist, prepared for Capital Investors and three reports of Mr Simon Turmanis, Clinical Psychologist dated 3 October 2013, 22 November 2013 and 15 April 2014. Mr Turmanis’ reports had been provided on those dates to Dr David Moore, the plaintiff’s general practitioner at the Cremorne Medical Practice.

293. Drs Apler and Klug took part in a conclave on 8 July 2015 and produced a report thereon dated 23 July 2015 which was also tendered. This commenced with a very useful summary of the medical records of the plaintiff’s general practitioners and of the Royal North Shore and St Vincent’s Hospitals, concerning consultations of the plaintiff with respect to psychiatric issues prior to the accident and concerning her admissions to hospital and treatment for acute anxiety and depression. In these records the causes of Ms Schneider’s psychiatric disturbances were reported as “work and relationship stress on a background of characterological anxiety”.

294. The conclave report also includes a summary of Mr Turmanis’ findings which relate to the period after the incident of 12 August 2008. Mr Turmanis’ reports commence five years later, in October 2013, when the plaintiff presented as “struggling to cope with her partner’s alcoholism and its complications, as well as being stressed by her WorkCover claim and affected by neuropathic pain”. Mr Turmanis had concluded that the plaintiff satisfied diagnostic criteria for Major Depressive Disorder and Generalised Anxiety Disorder.

295. In the conclave report Dr Apler concluded that it was likely the plaintiff “was affected by Generalised Anxiety Disorder and a Major Depressive Disorder”. Prior to the accident he considered that the work and relationship stresses she was under at that time “while contributory, would not by themselves explain her chronic pattern of anxiety and the symptoms of depression she experienced from time to time. It is likely that she had a psychiatric disorder which was constitutional”. Dr Klug was “reluctant to retrospectively diagnose a major psychiatric condition [pre-accident] such as a Generalised Anxiety Disorder”. He nevertheless accepted Dr Apler’s “rationale” and did “not discount the possibility that Ms Schneider has a tendency towards being excessively anxious”.

296. Dr Apler said if the tripping incident had not occurred the plaintiff would “probably” have “remained affected by chronic, fluctuating psychiatric disorder”. He considered that the plaintiff’s documented refusal to accept psychiatric treatment had “contributed to the chronicity of her symptoms”. Dr Klug also thought that it was “likely that Ms Schneider had a pre-disposition to anxiety-based symptoms”. Although he found it difficult to know in retrospect whether the plaintiff had a full anxiety disorder prior to the accident, he expressed the opinion that if she did “then this is likely to be a recurrent condition unless successfully treated”.

297. With respect to the effect of the incident, Dr Apler acknowledged that it was possible that any increase in pain and disability caused thereby could have exacerbated her pre-existing psychiatric disorder. However he laid stress upon the history of her having intentionally overdosed on 4 May 2008, whilst intoxicated. He considered this to be “evidence of an exacerbation in her psychiatric disorder prior to the incident of 12 August 2008”. He noted that she had not consulted a psychiatrist before the incident of 12 August and that as there was no major change in her treatment it was “likely that she remained affected by her exacerbated condition at the time of this incident”.

298. Hence, Dr Apler considered it “difficult to assess the extent to which this incident further exacerbated her symptoms” and, on the other hand, he identified that the psychiatric complaints for which she had consulted Mr Turmanis, commencing in mid-2013, had been provoked by “her partner’s alcoholism and abusive, manipulative behaviour, and poor health affecting her partner and her mother”. These matters were a “source of her chronic stress, which contributed to her depression and anxiety”. Dr Apler noted that pain “although mentioned, does not figure in Mr Turmanis’ notes as a major source of her stress”. Dr Apler concluded that stress in her relationships became a more dominant factor affecting her mental health in 2013 and 2014.

299. Dr Klug stated in the conclave report that his opinion was unchanged from that which he had expressed in his report of 3 September 2013. Namely that “there is a clear clinical and temporal relationship between the injury and its consequences and Ms Schneider’s chronic major depressive disorder with anxiety symptoms”.

300. In view of my finding that the plaintiff has suffered only a temporary aggravation of her symptoms of pain as a result of the accident, lasting about two weeks, I am not satisfied that her psychiatric condition has been exacerbated by that cause or that the apparently severe development of her underlying psychiatric disorders, which was the subject of her consultations with Mr Turmanis from mid-2013, can be attributed to the accident to any extent.

Damages

301. As I have found that none of the defendants is liable to the plaintiff in damages, it is not necessary for me to make an assessment. Although I have proceeded to make findings on causation of injury, I do not consider it necessary or practical also to make an assessment of damages for the sake of completeness. If I am wrong with respect to liability and if one or more of the defendants is in law liable to compensate the plaintiff for such damages as have been sustained through the limited injury which I have found to have been caused by her trip on 12 August 2008, then those damages, on my findings as to causation, would be very small indeed. Assessment of them would be a simple exercise. The evidence does not disclose that the plaintiff lost any earnings during the brief period following 12 August 2008 in which I have found that her pain and other symptoms are likely to have been aggravated.

302. If my conclusions with respect to both liability and causation are in error, then the assessment of damages which would be required would turn upon substituted conclusions with respect to the extent of damage caused. I cannot usefully anticipate the possible alternative findings which might be made and which would dictate one of a range of possible alternative assessments.

Orders

303. In accordance with these reason, the judgment and order of the Court in proceedings No. 2011/260408 are:

1. Judgment for the defendants against the plaintiff.

2. Each of the first to seventh cross-claims is dismissed.

304. I will hear the parties as to costs when they have had an opportunity to consider these reasons. Subject to submissions and, perhaps, further evidence directed to the question of costs, prima facie the plaintiff should pay the defendants’ costs of the proceedings on her amended statement of claim. There may have been no significant additional costs for any defendant of the cross-claims between the defendants. Office & Industrial would likely be entitled to its costs of defending the Sixth Cross-Claim.

305. In proceeding No. 2010/411126 the judgment of the Court is:

1. Judgment for the defendant.

306. Again, I will hear the parties as to costs. I am presently unaware of any reason why the plaintiff should not pay the defendant’s costs.

307. In proceedings No. 2014/308507 the judgment of the Court is:

1. Judgment for the defendants.

308. Prima facie the plaintiff in this action, Office & Industrial, should pay the defendant’s costs. I will hear the parties before making any order in that regard.

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Decision last updated: 06 April 2016