Smith v MEPC Australia Limited

[2001] NSWCA 438

CITATION:	SMITH V. MEPC AUSTRALIA LIMITED [2001] NSWCA 438
FILE NUMBER(S):	CA 40592/00
HEARING DATE(S):	5 November 2001
JUDGMENT DATE:	28 November 2001
PARTIES :	Elizabeth Smith - appellant MEPC Australia Limited - respondent
JUDGMENT OF:	Giles JA at 1; Hodgson JA at 13; Ipp AJA at 45

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	2523/98
LOWER COURT JUDICIAL OFFICER :	Naughton DCJ

COUNSEL:	Mr. W.P. Kearns SC with Mr. D. O'Dowd for appellant Mr. G. Grant for respondent
SOLICITORS:	Keddies, Redfern for appellant Connery & Partners, Sydney for respondent
CATCHWORDS:	JUDGMENTS AND ORDERS - Reasons for - On finding of fact - Primary judge says unable to make findings on certain matters - Whether appealable error. ND.
DECISION:	See end of judgment

CA 40592/00
DC 2523/98
GILES JA
HODGSON JA
IPP AJA

SMITH V. MEPC AUSTRALIA LIMITED

Judgment

1 GILES JA

: I have had the advantage of reading the judgments of Hodgson JA and Ipp AJA in draft. I will not repeat the facts appearing from those judgments.

2 The appellant’s principal challenge to the decision of Naughton DCJ was that his Honour had not provided adequate reasons for his decision, see Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 and cases there considered. That called for analysis of his Honour’s reasons in order to see whether the reasoning process and the basis for the material findings of fact were disclosed.

3 The respondent as occupier owed to the appellant as entrant a duty to take reasonable care for her safety in using the lifts. To escape the contention that the duty was satisfied by the engagement of the Otis company to service and maintain the lifts (see for example Northern Sandblasting Pty Ltd v Harris (1997) 188 CLR 313), the appellant’s case was relevantly that the respondent failed to take reasonable care because levelling problems with the lifts were reported to it, but it did not tell Otis of the problems so that attention could be given to them. If this were accepted, a causation question would remain. But his Honour did not accept it.

4 On the appellant’s case (a) the appellant and Mrs Morgante told Mr Botros of levelling problems with the lifts before the appellant’s accident; (b) the Otis record was a complete record of problems with the lifts of which Otis was told and did not include any levelling problems; (c) therefore Mr Botros had not told Otis of the levelling problems. To this was added that Mrs Hamilton-Barrett observed levelling problems with the lifts after the appellant’s accident and reported them to Mr Botros, apparently relied on together with (b) in order to bolster (c).

5 The respondent contested (a), at least initially agreed with (b), and because of the contest over (a) contested (c). It did not independently contest (c), because the evidence in chief of Mr Botros (whom it called) was that prior to the appellant’s accident he had not been told of levelling problems with the lifts. The waters were muddied when in cross-examination Mr Botros appeared to agree that there had been complaints about levelling problems with the lifts both before and after the appellant’s accident. Since he at all times maintained that he told Otis of whatever complaints he received, if it were found that complaints of levelling problems with the lifts had been made to Mr Botros the respondent would lose the contest over (a). If the respondent were to continue to contest (c), it would have to contest (b). It is not clear that the respondent did contest (b).

6 Naughton DCJ accepted Mr Botros’ evidence that he told Otis of whatever complaints were made to him. That evidence could not stand with finding that Mr Botros had been told of levelling problems with the lifts before the appellant’s accident unless it was also found that the Otis record was not a complete record of problems with the lifts of which Otis was told. Conversely, that evidence could not stand with finding that the Otis record was a complete record of problems with the lifts of which Otis was told unless it was also found that Mr Botros had not been told of levelling problems with the lifts before the appellant’s accident. The three were integrally related.

7 It was therefore important to find whether or not complaints of levelling problems with the lifts, as distinct from complaints of other matters, had been made to Mr Botros; and if it were in contest, to find whether the Otis record was a complete record of problems with the lifts of which Otis was told. His Honour did not specifically address complaints of levelling problems with the lifts. But he said that it was not possible on the evidence for him to make any finding as to whether, and if so to what extent, any of the three lifts failed to stop level with any floor prior to 18 April 1995. Implicit in this was that it was not possible to make a finding on whether Mr Botros had been told of levelling problems with the lifts. His Honour also said that he was unable to make any finding on whether the Otis record was a complete record of problems with the lifts of which Otis was told.

8 As a basic reasoning process, it can be seen why his Honour did not accept the appellant’s case. With a finding that Mr Botros told Otis of whatever complaints were made to him, and without favourable findings of fact on the other two matters, the case was not made out. But how could his Honour make the first finding without considering the significance to it of the other two matters? And why was his Honour unable to make findings as to the other two matters?

9 Sometimes acceptance or rejection of the evidence of a witness is susceptible of little explanation. But generally findings of fact should be explained in a manner appropriate to the circumstances. In the present case explanation called for regard to the significance to Mr Botros’ evidence of the evidence of complaints made to him of levelling problems with the lifts and, from the Otis record of the levelling problems with the lifts of which Otis was told, of evidence to the effect that he did not tell Otis of any levelling problems with the lifts. It was not appropriate to the circumstances simply to assert acceptance of the evidence of Mr Botros.

10 As to the complaints to Mr Botros, his Honour had the unexceptional task of deciding whether he should accept the evidence of the appellant and Mrs Morgante, and for the support it provided the evidence of Mrs Hamilton-Barrett, or the evidence of Mr Botros. In relation to the evidence of Mr Botros, he had to assess how the apparent acknowledgment in cross-examination affected his evidence in chief. No analysis of his Honour’s reasons discloses why it was “not possible on the evidence for [his Honour] to make any findings as to” levelling problems with the lifts. The words are direct: not that a finding in the respondent’s favour could not be made because she had failed to discharge the burden of proof she bore, but that no finding at all was possible.

11 As to the Otis record, it was amongst the documents tendered by the respondent and it appears to have been common ground, subject to any consequence of Mr Botros’ acknowledgment, that it was a complete record of problems with the lifts of which Otis was told. The report of Mr Campbell clearly treated it as a complete record. His Honour did not indicate that Mr Botros’ acknowledgment was an impediment to treating it in that way, and the only reason given was that no oral evidence was called on behalf of Otis. The report of Mr Campbell made such evidence unnecessary. Save for that unsatisfactory reason, no analysis of his Honour’s reasons discloses why his Honour was “unable to make any finding as to” the Otis record. Again the words are not those of failure by the respondent to discharge the onus of proof.

12 I do not think the reasons for the decision were adequate to inform the parties why the decision was as it was, or to enable appellate review. Regrettably, a new trial is necessary. I agree with the orders proposed by Ipp AJA.

: On 4th July 2000, Naughton DCJ gave a verdict for MEPC Australia Limited in proceedings brought against it by Elizabeth Smith, and ordered Ms. Smith to pay MEPC’s costs of the proceedings. Ms. Smith has appealed by leave from that decision.

CIRCUMSTANCES

14 The proceedings arose out of an accident involving the appellant that occurred on 18th April 1995. The appellant had been employed for about six months by Alectus Personnel Pty. Limited, a tenant of the respondent occupying office premises on the 10th floor of the building 280 George Street, Sydney. At about 9.55am on that day, the appellant travelled in a lift from the 10th floor of that building to the foyer in George Street. As she went to get out of the lift, her toe hit something, she stubbed her toe and she fell, and she suffered the injuries in respect of which she claimed damages.

15 The appellant brought proceedings against two Otis companies, which were responsible for maintaining the lifts, as well as against the respondent; but she settled her claim against the Otis companies prior to the hearing of the case against the respondent.

16 The appellant gave evidence that she had noticed that the lifts had failed to level with the floor on at least four occasions prior to the accident; and that she had reported this to the employer’s receptionist on the 10th floor.

17 A receptionist on the 10th floor, Mrs. Morgante, gave evidence that she had noticed that the lifts did not always stop level with the floor. She said that the problem had commenced shortly after she began working in the building in February 1995, and before the appellant’s accident, and that it occurred about once every few weeks. Mrs. Morgante said that she received complaints about this also. She said she always reported her observations and the complaints to Mr. Botros, the respondent’s building supervisor. In her evidence in chief, she said she had no doubt that she had made this observation and had reported this observation and complaints to Mr. Botros prior to the accident; but in cross-examination, she said that it was possible that the only complaints she made to Mr. Botros were after the accident.

18 Mrs. Hamilton-Barrett, who was employed as a receptionist on the 10th floor from September 1995, gave evidence that she noticed that the lifts did not stop level with the floors, and noticed people stumbling as they got out of the lift.

19 For the respondent, Mr. Botros said in his evidence in chief that, prior to the accident, he had not been notified of a problem with the lifts not levelling properly, although he went on to qualify this by saying “not that I can remember”. In cross-examination, after a question concerning complaints including complaints about levelling, he was asked whether “this” had happened before and after April 1995, and he said “yes”.

20 The respondent tendered in evidence a report by a lift consultant, Jim Campbell, which included the following statement under the heading “Callback Records”:

These are a record of all breakdowns which occurred on these lifts and the copy included here lists all breakdowns for each of these particular lifts between January 1994 and November 1995.

These records are a standard procedure in the lift industry , with all contractors keeping reliable records of lift breakdowns.

The number of breakdowns can be an indication of the quality of maintenance being performed, with the industry average for equipment of this type and age for a 12 month period being about 1.0 to 1.3 breakdowns per lift per month. A call rate over 1.3 per lift per month may be an indication that quality of maintenance is suspect, whilst a call rate below 0.8 per lift per month would indicate good maintenance.

In this particular case, the records show 76 callbacks for the period, 16 of which were not attributable to the lift equipment as they were either the result of interference, power failure or nuisance calls. On average then, the call rate here over the 3 lifts for the 22 month period is 0.91 calls per lift per month and this is indicative of a reasonably good level of maintenance.

The report also included the following comments:

For example the call records reveal that 75 malfunctions were recorded over the 3 lifts between January 4, 1994 and November 2, 1995 and not one of these malfunctions referred to incorrect levelling. This is not indicative of a lift with a history of levelling problems.

The Service Supervisor who attended the site on the 19th April 1995, the day after the accident, reported finding a loose connection on a particular contact on a particular relay, "which might cause the lift to stop at uneven heights on any floor" and we can confirm that a fault as described on the particular relay and contact concerned, would have the ability to cause the lift to level incorrectly.

The report annexed the record referred to in the first of those passages, being a document from Otis headed “Lift Breakdowns”; and it also annexed a record of the servicing that took place on 19th April 1995, which did not appear to have any record of any levelling problem.

21 After the report of Mr. Campbell was tendered and admitted without objection, the respondent closed its case, and the appellant in reply tendered a statement of one Luis Valezquez. The respondent objected to that document and there was argument concerning its admissibility. In the course of that argument, the following exchange occurred:

O'DOWD: Your Honour, would your Honour briefly hear me just on the issue of reasons?

HIS HONOUR: Yes, the document was tendered as a business record. In my opinion it hasn't been proved that it's a business record.

O'DOWD: No, your Honour. It's not tendered on that basis now, with respect. It's tendered on the basis of it being - and your Honour might recall, this is the first document. This a document that is tendered as one of the materials relied upon by Mr Campbell in the preparation of his report.

HIS HONOUR: Well, I reject it on the ground that that doesn't form a basis of relevance.

O'DOWD: Well, with respect, your Honour and I know I'm pushing your Honour's patience, but if Mr Campbell relied upon this document as one of the materials which he considered in preparing his report, then clearly it has some relevance because it's part of -it is explanatory of the matters that he - and indeed were it -I mean, that would have been - otherwise it would have been objectionable, but for the admission of the other documents and in the normal course, material which he's relied upon in preparing his report become relevant by virtue of the fact that my friend has tendered the report - in respect of which, he relied upon this and other materials.

HIS HONOUR: I've rejected the document and the ground of it is that it's irrelevant. Do you have anything else you want to tender?

PRIMARY JUDGE’S DECISION

22 The primary judge found that, on the occasion of the accident, the lift had in fact stopped between 20 and 40 centimetres below the floor level of the foyer of the building, causing the appellant to trip.

23 In relation to the “Lift Breakdowns” document, the primary judge said this:

A copy of a document headed "Lift Breakdowns" in the subject building from 4 January 1994 to 26 September 1995 both inclusive, and endorsed "Otis Building Technologies", was tendered as an annexure to a report dated 11 February 1999 by Mr J Campbell, the Managing Director of Jim Campbell and Associates, Lift Consultants. That report had been commissioned by the solicitors for Otis as expert evidence on its behalf. It was tendered on behalf of the first defendant. The report contained no record of any floor levelling problems.

I am unable to make any finding as to whether or not the document headed "Lift Breakdowns " contained a true and complete record of all relevant complaints concerning the lifts over the period, or any part of the period, which it covered. No oral evidence was called on behalf of Otis. Mr Botros was the only witness who gave oral evidence for the first defendant. He was the first defendant's building supervisor.

24 His Honour went on to discuss evidence given by the appellant and the two receptionists, and by Mr. Botros. The primary judge made some findings concerning the engaging of Otis, and the right of the appellant to use the lifts, and then continued:

I find that at appropriately relevant times Mr. Botros referred complaints about the lifts for attention by Otis, or its agent Boral Elevators. It is not possible on the evidence for me to make any finding as to whether and, if so, to what extent, any of the three lifts failed to stop level with any floor prior to 18 April 1995.

25 In relation to another submission made by the appellant in relation to the placing of a warning sign, the primary judge said this:

It was further submitted on behalf of the plaintiff that the accident could have been avoided by the placement in each lift of a warning sign stating that the lift might not stop level at any floor. That submission fails for three reasons. First, it, also, relates to breach of the duty of care owed by Otis not to the duty of care owed by the first defendant. Second, as Mr Botros explained, such a sign was not a practical solution. It would have been likely to deter most, if not all, people from travelling in the lifts at all. It was unrealistic to expect the first defendant to in effect advertise that its lifts were faulty. The problem needed to be fixed not advertised. Third, as the plaintiff was, and had been for six months prior to the accident, a regular daily user of the lifts, she already knew, to the extent that they may have been unsound, that that was so. The suggested warning sign would not therefore have told her anything which she did not already know.

GROUNDS OF APPEAL

26 The Notice of Appeal contained sixteen grounds, expressed at some length. However, there were in substance only two grounds pursued in oral submissions, and one further ground in written submissions which I need to mention.

REJECTION OF EVIDENCE

27 One ground raised in oral submissions by Mr. Kearns SC for the appellant was that the primary judge was in error in rejecting the tender of the statement of Mr. Valezquez. He submitted that the content of that statement was plainly relevant, so that the primary judge’s rejection of it on the grounds that it was irrelevant was an error; and if the primary judge had rejected it on the ground that it was hearsay, then the appellant would have had the opportunity to seek to call Mr. Valezquez to give oral evidence.

28 In my opinion, it is plain that the statement was never put to the primary judge as a tender of hearsay with the intention of proving the truth of the representations contained in the document. It was tendered, not as a business record, but as material relied on by Mr. Campbell in the preparation of his report, supposedly made relevant by the fact that Mr. Campbell’s report had been tendered. That amounted to an assertion that it was relevant that Mr. Valezquez had made this statement, irrespective of whether the representations in the statement were true or not. Looked at in that way, in my opinion the primary judge was correct in his ruling that the document was irrelevant.

29 It would have been otherwise if the document had frankly been tendered as hearsay with the intention of proving the truth of the representations contained in the document. Then, it would have been necessary to know whether it was objected to on the ground of hearsay, and, if so, whether any relevant exception to the hearsay rule was relied on by the appellant. If it had been rejected as hearsay, then it would have been a matter for the appellant whether or not to apply for an adjournment, if the appellant was not then in a position immediately to call Mr. Valezquez. That was not the basis on which the matter was dealt with.

INADEQUACY OF REASONS

30 The principal ground of appeal was that the primary judge did not give adequate reasons for his decision. In particular, Mr. Kearns submitted that the primary judge was in error in expressing himself as unable to make any finding as to whether or not the document headed “Lift Breakdowns” contained a true and complete record of all relevant complaints: the document had been put forward by the respondent as being a true and complete record, and no contrary submission was made by the appellant. In those circumstances, any failure to find the document to be a true and complete record required justification, which was not given. Furthermore, Mr. Kearns submitted that the primary judge was obliged to make a finding one way or the other as to whether or not the document did contain a true and complete record, and it was not open to him to simply state that he was unable to make such a finding.

31 Mr. Kearns made a similar complaint concerning the primary judge’s statement that it was not possible on the evidence to make any findings as to whether, and if so to what extent, any of the three lifts failed to stop level with any floor prior to 18th April 1995. Both the appellant and Mrs. Morgante had given evidence that there had been such incidents prior to 18th April 1995, and the primary judge was obliged to make a finding as to whether or not such incidents had occurred. If he were to reject the evidence of those witnesses, he should have given reasons, and he did not do so. This is particularly so when Mr. Botros had admitted in cross-examination that there were complaints about levelling prior to the appellant’s accident.

32 It is clear in my opinion that it was a necessary element in the case sought to be made by the appellant against the respondent that there were occasions, prior to the accident, when Mr. Botros had become aware of incidents when the lifts did not stop level with the floors, and had failed to notify Otis of that problem. In order to prove that aspect of the case, the appellant relied on evidence of complaints being made to Mr. Botros prior to the accident, and upon the record from Otis suggesting that no report of this problem had been made to Otis.

33 Mr. Botros’ evidence was to the effect that, whatever complaints he received, he always referred them to Otis. If that evidence was correct, then it must mean either that there were no complaints made to him about levelling prior to the accident, or that the Otis record was not a complete record of all the complaints that were referred to Otis. In my opinion, a fair view of the primary judge’s judgment is that what his Honour did was to find that Mr. Botros did refer whatever complaints he had about the lifts for attention by Otis, and accordingly that either the Otis record was not complete or there were no complaints about levelling prior to 18th April 1995; and that the primary judge was unable to say which one of those possibilities held good or indeed whether both of them were the case. On that approach, the primary judge’s assertion that he was unable to make a finding as to whether the Otis document contained a true and complete record of all complaints was not unsupported by reasons: rather, it was supported by the ensuing paragraphs of the judgment, including the finding that, at appropriately relevant times, Mr. Botros did refer complaints about the lifts for attention by Otis. I agree with Giles JA and Ipp AJA that the mere fact that no oral evidence was called on behalf of Otis would not of itself justify non-acceptance of the document as a full and complete record, when this appeared to be assumed in Mr. Campbell’s report tendered by the respondent. However, the absence of oral evidence was a relevant consideration, particularly since neither this Otis document nor the record of servicing of the lifts on 19th April 1995 made any mention of the levelling problem that was in fact addressed by Otis on 19th April 1995. And as I have said, in my opinion the primary judge did refer to other considerations supporting his assertion.

34 In my opinion, it was open to the primary judge to be satisfied that Mr. Botris did refer to Otis whatever complaints were made to him; and such a finding was fatal to the appellant’s case. (Indeed, a finding by the primary judge that he was not satisfied that Mr. Botros did not refer such complaints to Otis would have been fatal to the appellant’s case.) In making that finding, in my opinion it was not necessary for the primary judge to find specifically which of the two propositions relied on by the appellant was not made out: they were not themselves ultimate facts in issue, but merely facts relevant to an ultimate fact in issue. The primary judge was plainly not satisfied that both propositions together had been made out, that being what was necessary for the appellant to succeed.

35 I do not think the reasons for this finding as to Mr. Botros’s evidence are inadequate. The admission allegedly made by Mr. Botros as to prior complaints about levelling was in answer to an ambiguous question, and in my opinion the substantial effect of what the primary judge was saying was that he did not find the evidence of the Otis document and of the prior complaints, taken together, sufficient to justify rejection of Mr. Botros’s evidence that whatever complaints he received he passed on to Otis.

36 In my opinion, although it would have been preferable if the primary judge had been able to say that he was not satisfied that the Otis document was true and complete or that he was not satisfied that there were complaints about levelling prior to the accident, or both, and to give reasons specifically directed to these propositions, this is a case where insistence on that approach could in fact operate unfairly to the respondent. Let us suppose that the probability that the Otis document was true and complete was 0.6, and the probability that there had been prior complaints about levelling was 0.6: then, leaving to one side complications caused by the interdependence of these probabilities, the probability that both were true together would be only 0.36. The complications caused by the interdependence of the probabilities do not make this calculation misleading in the respondent’s favour, because the truth of one of the components would if anything tend to decrease the probability of the other.

37 It would also have been preferable if the primary judge had stated specifically why he had such doubts about each proposition that he was not satisfied that both were true; but in this case as in many cases there may be little more a judge can do than to set out the opposing considerations and express a preference for one view.

38 On the whole, I am not satisfied that there is such a deficiency of reasons as to require that this matter go back for a further trial. I think the reasons, although not ideal, are sufficient to indicate to the appellant and to this Court the basis on which the decision was made.

WARNING

39 The final ground of appeal I should deal with arises from a complaint made in the written submissions for the appellant concerning the primary judge’s finding in relation to warning. I accept the appellant’s submission that the primary judge’s first reason, namely that it related to a breach of duty by Otis, is not supportable, at least as an independent ground of relieving the respondent. However, where the primary judge had already held that any relevant complaints had been passed on to Otis, who apparently then dealt with them appropriately, it seems to me that there would be no basis for liability in the respondent on the basis of failure to warn. The primary judge’s comments about the effect of such a notice have some bearing on this question, confirming that the giving of such a warning would not be an appropriate step required of the respondent in these circumstances.

40 It was submitted by the appellant that it was wrong for the primary judge to act on the basis that the appellant knew there was a problem, in circumstances where he said he was unable to determine whether or not there was a problem prior to the accident; but in my opinion, that should be understood as being a view expressed on the assumption, which would necessarily have to be made if the plaintiff was to succeed at all, that there were indeed problems prior to the accident.

CONCLUSION

41 For those reasons, in my opinion the appeal should be dismissed with costs.

42 However, since the majority view is otherwise, I would make two further comments in relation to the new trial which is to take place.

43 First, the appellant cannot succeed unless the judge is satisfied, not merely that there was at least one complaint about levelling before the accident which Mr. Botros did not pass on, but also that, if he had passed on such complaints as were made, Otis would have so attended to the matter that the accident would not have occurred. This is a very doubtful proposition, when on the appellant’s case the levelling problems continued after the accident, and this was despite Otis being made aware of the levelling problem which caused the accident.

44 Second, it will be necessary for the appellant to disclose what if any benefit she received from the settlement with Otis, as this would have to either be deducted from any judgment against the respondent or treated as a partial satisfaction of it.

45 IPP AJA: The appellant was injured on 18 April 1995 when she fell while walking out of a lift that had carried her from the tenth floor to the foyer of the building at 280 George Street Sydney. The lift had stopped between 20 and 40 centimetres below the level of the floor of the foyer and this had caused the appellant to trip.

46 The respondent was the landlord of the building and the appellant was employed by a tenant of the respondent. The appellant sued the respondent for damages arising out of the personal injuries she suffered in her fall.

47 Two Otis companies were responsible for maintaining the lifts in the building. The appellant asserted that the respondent had failed to inform the Otis companies of the propensity the lifts had for opening at positions that were not level with the floors at which they stopped. She contended that the respondent was thereby negligent and that its negligence had caused the damages she had suffered by her fall.

48 The trial judge found for the respondent. Essentially, he held that Mr Botros, the respondent’s building supervisor, had “at appropriately relevant times … referred complaints about the lifts for attention by Otis, or by its agent Boral Elevators”. This finding meant that the appellant had failed to establish her case and his Honour dismissed her claim.

49 In my opinion the reasoning of the trial judge, leading to this finding, was erroneous.

50 Mr Botros testified that he always referred any complaints he received about the lifts to Otis. It was open to his Honour to accept that evidence. But there was evidence to the contrary, evidence that was highly probative.

51 The evidence relied on by the appellant to refute the evidence of Mr Botros fell into two categories. The first category comprised a document headed “Lift Breakdowns” which was an annexure to a report dated 11 February 1999 by Mr J Campbell, an expert retained on behalf of the respondent. The second category comprised the testimony of the appellant herself and Mrs Morgante, a receptionist on the tenth floor.

52 The respondent tendered Mr Campbell’s report, including the Lift Breakdowns document, and the report and the document were admitted without objection. According to the report the Lift Breakdowns document comprised part of the “Call Back Records”. Mr Campbell stated:

These are a record of all breakdowns which occurred on these lifts and the copy included here lists all breakdowns for each of these particular lifts between January 1994 and November 1995.
These records are a standard procedure in the lift industry, with all contractors keeping reliable records of lift breakdowns.

53 The respondent relied on the report of Mr Campbell and the Lift Breakdowns document in attempting to prove that no complaints had been made by users of the to the effect that lifts were stopping at levels different to the floor levels. The respondent asserted that, because the Lift Breakdowns document contained no record of complaints of the lift stopping at incorrect levels, it followed that no complaints to that effect were made. Importantly, therefore, the respondent’s position in regard to the Lift Breakdowns document was that it was an accurate record of complaints that had been made.

54 The appellant also accepted that the Lift Breakdowns document was a correct record of complaints that were made. She, however, attempted to use the document to show that Mr Botros had failed to report complaints of breakdowns to the Otis companies.

55 The trial judge, after referring to the Lift Breakdowns document, said:

I am unable to make any finding as to whether or not the document headed ‘Lift Breakdowns’ contained a true and complete record of all relevant complaints concerning the lifts over the period, or any part of the period, which it covered.
The literal meaning of this statement is that the judge considered that he was not in a position to make any finding as to whether or not the Lift Breakdowns document was an accurate record of all relevant complaints concerning the lifts. If that is what his Honour intended to say, it is plain that he was wrong. There was ample evidence that justified a finding that the document in question was a true and complete record of all relevant complaints. This was the basis on which it was tendered by the respondent and was accepted by the appellant.

56 Counsel for the respondent submitted that, by the remarks in question, the learned judge meant merely that he was not persuaded that the Lift Breakdowns document contained a complete record of all relevant complaints. I accept that, in context, the words in question are capable of bearing the meaning contended for by the appellant but, in my view, his Honour intended that the words used by him should bear their ordinary meaning.

57 Firstly, the judge’s statement that he was “unable to make any finding” that the Lift Breakdowns document contained a complete record of all relevant complaints was followed by observations that no oral evidence was called on behalf of Otis and Mr Botros, the building supervisor, was the only witness who gave evidence for the respondent. These observations amounted to an explanation for the inability to make any finding whatever. The explanation being that no person from the Otis companies had testified in that connection (I do not accept that explanation as it takes no account of the tender of the document by the respondent and its acceptance by the appellant).

58 Secondly, a decision to regard the Lift Breakdowns document as an inaccurate record of complaints would call for an explanation as to why the treatment of the document by the parties themselves and their acceptance thereof was not to be regarded as conclusive. The judge gave no such explanation.

59 In my opinion, the matters referred to in the preceding two paragraphs prevent an inference being drawn that the trial judge intended to hold that it was not proved that the Lift Breakdowns document was a complete record of relevant complaints. As I have said, I consider that the words used by his Honour should bear their ordinary meaning.

60 Accordingly, I conclude that the trial judge held that he was unable to make any finding as to whether the Lift Breakdowns document was a complete record of relevant complaints. I conclude further, for the reasons I have expressed, that his Honour erred in making that finding.

61 The conclusion that his Honour so erred undermines the judge’s finding that Mr Botros referred all relevant complaints to the Otis companies. That is because the latter finding was predicated on the assumption that the Lift Breakdowns document was not a complete record of all complaints.

62 The finding that Mr Botros did refer all complaints to the Otis companies is further open to serious question because the judge, in his reasons, did not explain why he rejected the evidence of the appellant herself and Mrs Mogante that at times lifts had not stopped at the proper levels and each had reported these incidents to the respondent’s office receptionist or Mr Botros himself. In essence, the case turned on whether Mr Botros’ testimony was to be preferred to the testimony of these witnesses. The judge, however, in accepting Mr Botros’ version, gave no reason for doing so and did not explain why he was not persuaded by the evidence of the appellant and Mrs Mogante. In my opinion, these omissions are fatal flaws in his Honour’s reasons.

63 In the circumstances, I conclude that the appeal should succeed, the orders made by the trial judge should be set aside and the matter should be remitted to the District Court for retrial. The respondent should pay the appellant’s costs of the appeal and the costs of the trial should be costs in the cause of the retrial. The respondent should have a certificate under the Suitors Fund Act if otherwise entitled.

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