Than v Galletta

[2019] NSWDC 9

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Than v Galletta & Ors [2019] NSWDC 9

Hearing dates:

9, 10, 11 July, 16 & 17 August 2018, 1 February 2019

Date of orders:

08 February 2019

Decision date:

08 February 2019

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Verdict and judgment for the plaintiff against each of the defendants, in the sum of $333,006.65;

 

2. On the first cross-claim, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the sixth and seventh defendants are to bear one hundred per cent of the plaintiff's damages and the first, second, third, fourth and fifth defendants are to bear zero per cent of the plaintiff's damages;

 

3. The second cross-claim is dismissed;

 

4. The defendants are to pay the plaintiff's costs of her action;

 

5. The sixth and seventh defendants are to indemnify the first, second, third, fourth and fifth defendants for costs liability those defendants have to the plaintiff;

 

6. The sixth and seventh defendants are to pay the costs of the first cross-claim brought by the first, second, third, fourth and fifth defendants;

 

7. The sixth and seventh defendants are to pay the costs of the first, second, third, fourth and fifth defendants on the second cross-claim;

 

8. All costs payable are to be assessed on the ordinary basis unless a party can show an entitlement to some other costs order;

 

9. The exhibits are to be returned;

 10. Liberty to apply on 7 days notice if further or other orders are required, including as to costs.

Catchwords:

TORTS – negligence – occupier’s liability – plaintiff fell whilst descending an unlit stairwell in common area of residential rental premises – proceedings against owners and managing agents – whether there was inherent risk of harm within the meaning of s 5I of the Civil Liability Act 2002 – whether there was an obvious risk within the meaning of s 5F of that Act – whether defendants were negligent – whether plaintiff was contributorily negligent – apportionment of liability between defendants on cross-claims pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946; DAMAGES – assessment of claimed heads of damage

Legislation Cited:

Civil Liability Act 2002, Pt 1A Div 2, s 5B, s5C, s 5D, s 5E, s 5F, s 5G, s 5I, s 5R, s 5S, s 13
Evidence Act 1995, s 60
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Residential Tenancies Act 2010, s 63

Cases Cited:

Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Amoud v Al Batat [2009] NSWCA 333
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7
Avopiling Pty Ltd v Bosevski [2018] NSWCA 146
Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16
Bonitto v Fuerst Bros & Co Ltd [1944] AC 75
Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA139
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker (1961) 106 CLR 340; [1961] HCA 48
Hall v State of New South Wales [2014] NSWCA 154
Laresu Pty Ltd v Clark [2010] NSWCA 180
Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5
Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711
Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61
Penrith City Council v Parks [2004] NSWCA 201
Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42
St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480
State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133
Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5
Vairy v Wyong shire Council (2005) 223 CLR 442; [2005] HCA 62

Category:

Principal judgment

Parties:

Karen Than (Plaintiff)
Sheila Elizabeth Galletta (First defendant)
Joan Maria Ghisla (Second defendant)
Margaret Rachel Stanton (Third defendant)
Kathryn Anne Calabrese (Fourth defendant)
Josephine Gloria Lombardo (Fifth defendant)
Adrian Tesoriero t/as LJ Hooker Bondi Beach (Sixth defendant)
AP Tesoriero t/as LJ Hooker Bondi Beach (Seventh defendant)

Representation:

Counsel:
Mr K Andrews with Mr R Brown (Plaintiff)
Mr P Nolan (Defendants 1 – 5, First cross-claimants)
Mr J Sheller (Defendants 6 – 7, Second cross-claimants)

  Solicitors:
Slater & Gordon (Plaintiff)
Barry Nilsson (Defendants 1 – 5, First cross-claimants)
Gilchrist Connell (Defendants 6 – 7, Second cross-claimants)

File Number(s):

2017/205701

Publication restriction:

None

Judgment

Table of Contents

Factual background and nature of case	[1] – [3]
Parties	[4] – [5]
Issues calling for decision	[6]
Credibility and reliability of testimony	[7] – [20]
The plaintiff	[8]
Ms Galletta	[9]
Mr Tesoriero	[10] – [18]
Mr Jacobson	[19]
Dr Cooke	[20]
Facts	[21] – [69]
(1) Plaintiff’s background circumstances	[22] – [26]
(2) Description of premises where accident occurred	[27] – [31]
(3) History of fault with the lighting	[32] – [44]
(4) Accident circumstances	[45] – [49]
(5) Injuries	[50] – [51]
(6) Course of treatment	[52] – [54]
(7) Chronology of subsequent medical reviews	[55] – [56]
(8) Disabilities that remain	[57] – [63]
(9) Work effects	[64] – [66]
(10) Domestic effects	[67]
(11) Mitigation of losses	[68] – [69]
Issue 1 – Relevant risk of harm	[70] – [72]
Issue 2 – Whether there was an inherent risk of harm	[73] – [80]
Issue 3 – Whether there was an obvious risk of harm	[81] – [91]
Issue 4 – Duty of care owed	[92] – [100]
Issue 5 – Whether there were breaches of duty of care	[101] – [168]
Issue 6 – Whether causation has been established	[169] – [173]
Issue 7 – Alleged contributory negligence	[174] – [187]
Issue 8 – Apportionment between defendants	[188] – [225]
Issue 9 – Assessment of damages	[226] – [259]
Actuarial factors	[227]
Non-economic loss	[228] – [234]
Past economic loss	[235] – [238]
Future economic loss	[239] – [247]
Superannuation losses	[248]
Past domestic assistance	[249] – [250]
Future domestic assistance	[251] – [253]
Future out-of-pocket expenses	[254] – [257]
Past out-of-pocket expenses	[258]
Summary of damages assessment	[259]
Disposition	[260]
Costs	[261] – [266]
Orders	[267]

Factual background and nature of case

1. The plaintiff, Ms Karen Than, brings these proceedings alleging negligence and claiming damages for personal injury against two groups of defendants. She alleges breaches of the duty of care by the owner occupiers, and by the managing agents, concerning the state of the lighting in a stairwell in the common area of residential rental premises situated at 46 Hall Street, Bondi Beach, NSW. The respective groups of defendants dispute the plaintiff’s claims and they have exchanged cross-claims, which are also disputed.

2. At about 6.00am on Sunday 2 August 2015, in conditions of relative darkness, whilst holding a handrail, the plaintiff misplaced her footing whilst she was descending a flight of unilluminated internal stairs in a common area within the defendants’ premises. The lighting in that location had a history of malfunction. She fell down the stairs and sustained a Lisfranc fracture to her left foot.

3. The plaintiff’s proceedings are governed by the provisions of the Civil Liability Act2002 (NSW) (the “CL Act”). The defendants’ cross-claims are also governed by that Act and by s 5 of the Law Reform (Miscellaneous Provisions) Act 1946.

Parties

4. The first group of five defendants, Ms Sheila Galletta (the first defendant), Ms Joan Ghisla (the second defendant), Ms Margaret Stanton (the third defendant), Ms Catherine Calabrese (the fourth defendant) and Ms Josephine Lombardo (the fifth defendant), own the premises as tenants in common in equal shares, which they acquired by inheritance. They are the occupiers of the premises.

5. The second group of two defendants, Mr Adrian Tesoriero (the sixth defendant), and Mr Angelo Tesoriero (the seventh defendant), who are unrelated, and who trade as LJ Hooker Bondi Beach, are, pursuant to a management agency agreement in force since 26 February 1999, the managing agents whom the owners and their predecessors had contractually engaged to manage the letting, inspection, maintenance and repair of the premises. In those circumstances, according to the agency management agreement, the owners had retained a significant degree of control, but absent their own inspections, they relied upon the agents for the provision of relevant information.

Issues calling for decision

6. Apart from assessing the credibility and the reliability of testimony, and determining relevant factual matters, the issues calling for decision in this case may be conveniently identified as follows:

1. The identification of the relevant risk of harm underpinning any duty of care owed by the respective defendants. My findings on this issue appear between [70] to [72] of these reasons;

2. Whether the identified risk of harm constituted an inherent risk within the meaning of s 5I of the CL Act. My findings on this issue appear between [73] to [80] of these reasons;

3. Whether the identified risk of harm constituted an obvious risk within the meaning of s 5F of the CL Act. My findings on this issue appear between [81] to [91] of these reasons;

4. The scope and content of the duty of care owed by the respective defendants. My findings on this issue appear between [92] to [100] of these reasons;

5. Whether the respective defendants had negligently breached the duty of care that they owed to the plaintiff in the circumstances. My findings on this issue appear between [101] to [168] of these reasons;

6. Whether the plaintiff’s injuries were, within the meaning and application of s 5D of the CL Act, relevantly caused by the negligence of the respective defendants. My findings on this issue appear between [169] to [173] of these reasons;

7. Whether the plaintiff had, by alleged contributory negligence, relevantly caused or contributed to her own injuries. My findings on this issue appear between [174] to [187] of these reasons;

8. In the event of the plaintiff establishing an entitlement to damages from both defendants, the relative apportionment of monetary liability to the plaintiff as between defendants, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act. My findings on this issue appear between [188] to [225] of these reasons;

9. The assessment of the elements of the plaintiff’s entitlement to damages. My findings on this issue appear between [226] to [259] of these reasons.

Credibility and reliability of testimony

7. In my assessment, to varying degrees, all the witnesses did their best to give truthful evidence of the facts as they recalled them. In the paragraphs that follow, I record the substance of their respective testimonies and my impressions of the credibility and the reliability of their testimony.

The plaintiff

8. In my assessment, the plaintiff was an impressive and truthful witness. She gave her evidence in a careful, straightforward, and unembellished manner. In my view, she stoically understated the effects of her injuries when she described them. Those matters will be identified in my findings of fact. No doubts arose concerning the credibility or the reliability of her evidence. I accept her evidence in its entirety.

Ms Galletta

9. The first defendant, Ms Maria Galletta gave oral evidence. She had no prior dealings with the plaintiff. The essence of her evidence was that, subject to the terms of an applicable management agency agreement that remained in force, matters of inspection and maintenance of the premises, including regarding the lighting, were left to be determined by the managing agents. Her evidence was primarily directed at the cross-claim between the respective groups of defendants. She made fair and due concessions when it was appropriate for her to do so. Her evidence will be analysed in conjunction with the issues of duty of care and alleged breach, including on the cross-claims. No issues of credit or reliability of testimony arose from her evidence.

Mr Tesoriero

10. The sixth defendant, Mr Adrian Tesoriero, gave oral evidence. In my view, his recollection was limited and was vague in parts. It was also guarded on some critical matters in dispute. His oral evidence contradicted his email correspondence to the owners on an important matter of fact concerning whether or not he had received a previous report about faulty stairwell lighting. On behalf of the owners, it was submitted that Mr Tesoriero’s evidence was either evasive, not entirely forthcoming, or aimed at self-exculpation. I accept the force of that submission.

11. Mr Tesoriero has worked for LJ Hooker Bondi Beach since 1993. At the time of the events giving rise to this claim his role was that of a senior property manager. At the time his agency managed some 1200 leased properties in the area: T143.9. That portfolio was divided between four property managers including himself. This meant that they each took responsibility for managing 300 properties: T156.25 – T156.32. He carried out routine rental property inspections on a daily basis, so that each of the properties he was managing was inspected at about 3 monthly intervals, or at an average rate of three inspections per day: T157.8 – T157.20.

12. Mr Tesoriero explained that as the managing agent he had an arrangement with a local maintenance electrician, Mr Justin Jacobson, for electrical repairs and electrical maintenance work to be carried out on the property when required. The maintenance and repair arrangements between Mr Tesoriero and Mr Jacobson seem to have varied according to the circumstances. He said that sometimes formal work orders were issued to Mr Jacobson in writing, and sometimes informal verbal requests were made to Mr Jacobson by Mr Tesoriero either by telephone or in face-to-face meetings. Mr Tesoriero’s recollections concerning his actual contact with Mr Jacobson, concerning the testing of the lighting on the premises, was limited: T154.35 – T154.47; T158.10 – T158.48.

13. Mr Tesoriero agreed that in the period between May and August 2015, there was a likelihood that he may not have inspected the common areas of the subject property, notwithstanding that he made regular visits as the premises were a block away from his office: T155.44 – T156.17; T157.25. That evidence is of particular relevance in view of particular complaints made by a tenant on 12 May 2015 and again on 10 July 2015, to the effect that the stairwell lighting was not working. The first of those complaints informed Mr Tesoriero that walking in the stairwell at night posed a danger.

14. According to Mr Tesoriero’s evidence, the sequence of events seems to have been that whenever he received reports as to the stairwell lights not working, he had asked Mr Jacobson to attend and fix the lighting: T144.7. This led to Mr Jacobson intermittently changing light globes or tubes for the light fittings, until in September 2015, when the actual light fittings were all changed: T144.50 – T145.20. That changeover occurred after consultation with the manufacturer of the light fittings concerning the suitability of the light fittings to the stairwell because of a combined sensor and switch operation: T145.10 – T145.45.

15. Mr Tesoriero acknowledged that on 10 July 2015, the tenant of Flat 4, the plaintiff’s flatmate, had complained to him that the stairwell lights in the premises were not working: T147.48. That evidence was in stark contradiction to an email he had sent to the owners on 17 August 2015, in which he had stated there had been no such complaints between 12 May 2015 and the time of the plaintiff’s fall on 2 August 2015. He acknowledged that if the stairwell lighting was not working, that problem would be seen as requiring urgent rectification: T147.25 – T147.32.

16. Mr Tesoriero acknowledged that if the prevailing circumstances were that the stairwell lights were known to be not working, this necessarily meant that in the evening and early morning hours, the stairwell would be in darkness: T148.30. He acknowledged that although it would be good practice to use a warning sign to notify tenants of that situation if a prompt repair could not be effected, he did not do that: T148.44. The only measure he took in response to the tenant’s complaint of the lights not working was to notify the electrician: T148.49. There was no documentary evidence that he had done so following the 10 July 2015 email that he had received from the tenant of Flat 4.

17. Mr Tesoriero denied that he had done nothing in response to the tenant’s complaint: T150.26 – T150.40. He said that he had responded to that communication by telling the electrician “to go back and fix the light again”, but in giving that answer, he acknowledged that there was no written work order supporting that request: T150.47 – T151.10. There was no evidence that Mr Tesoriero had acknowledged or had responded to the tenant of Flat 4 to provide feedback information on that complaint. There is no evidence of what if anything Mr Tesoriero did to follow that matter up with Mr Jacobson and to satisfy himself that the work he was referring to had in fact been carried out.

18. Mr Tesoriero’s evidence will be examined more closely in relation to factual findings on the question of whether or not there were breaches of the duty of care owed, and in connection with the cross-claims.

Mr Jacobson

19. Mr Justin Jacobson, the electrician engaged by Mr Tesoriero, gave oral evidence. He is not a party to the proceedings. His evidence was based on only limited records and a faded recollection. Whilst I am satisfied that he gave his evidence to the best of his recollection concerning his maintenance and repairs of the lighting in the premises, that evidence, which was not supported by documentary evidence after May 2015, was limited, vague and imprecise as to dates. His memory of the events had obviously faded. He had only been told about the plaintiff’s injury some time in about 2016: T174.14. His evidence raised questions of probability and improbability concerning aspects of his testimony relating to the remedial work that Mr Tesoriero claimed had been carried out by Mr Jacobson. Those matters will be identified in my fact findings that relate to his evidence.

Dr John Cooke – Plaintiff’s liability expert

20. The plaintiff tendered an expert liability report dated 16 July 2018 from Dr John Cooke, an architect. Dr Cooke was not required to attend the hearing for cross-examination on the opinions he had expressed in his report. The salient features of his report will be referred to in connection with the consideration of the liability issues. No issues of credibility or reliability arose from the opinion of Dr Cooke, which stand to be analysed according to the factual assumptions upon which his report was based.

Facts

21. Unless otherwise qualified, in the paragraphs that now follow, I identify my findings of fact concerning relevant topics, namely: (1) the plaintiff’s background circumstances; (2) a description of the premises where the plaintiff fell; (3) the history of fault and replacement of the stairwell lighting; (4) the accident circumstances; (5) the plaintiff’s injuries; (6) the course of treatment; (7) the chronology of subsequent medical reviews; (8) her remaining disabilities; (9) work effects; (10) domestic effects; and (11) mitigation of loss.

(1) - Plaintiff’s background circumstances

22. The plaintiff is presently aged 40 years. She has degrees in Law and Commerce. She works for Transport NSW, for which she has consulting duties with regard to auditing of risk, compliance, and risk management matters between shared services involving different transport agencies.

23. Before the subject accident the plaintiff was in good general health. In 1996 she had suffered a right knee injury in a motorcycle accident. After her recovery from that accident, she was left with occasional pain and discomfort in that knee in cold weather conditions. She found that her right knee would hurt if she walked for about 20 minutes.

22. Before the subject accident, the plaintiff had led an active life. She occasionally engaged in bushwalking activities with friends. She had no restrictions from her previous right knee injury, other than as described in the preceding paragraph.

23. The plaintiff no longer lives in the premises where she sustained her injury. She now lives independently in her own home. She has a 9 month old son and a two year old daughter. He parents are available to assist her with the needs of her children if she requires help in that regard. She works full-time and she intends to continue doing so. She has a number of property investments for which she must continue to service mortgages. She bought one of those properties with the strategy of ensuring that her children had access to school enrolments in the locality where she wanted them to be schooled.

24. Although the plaintiff intends to continue to work full-time in her present position, she has concerns about the security of her continued future employment in that position because she has become aware of some foreshadowed workplace restructuring that is anticipated to occur in the not too distant future.

(2) - Description of the premises where the accident occurred

27. For a period of about 8 months before her injury, the plaintiff was sharing Flat 4 which was located on the first floor of the premises, which comprised two residential floors. Her flatmate had a formal lease from the owners of the premises. There was an internal stairwell linking and providing access between floors within the premises. The walking surfaces of the treads of the stairs comprised trowelled cement, which was painted black. The vertical risers on the stairs comprised plain glossy white tiles which provided a degree of reflection in conditions of darkness.

28. During daylight hours the stairway received screened natural lighting through a ceiling skylight but that light was deceptive and of diminishing effect on descending the stairs: T13.35 – T13.36. During the hours of darkness, the stairway was normally capable of being illuminated by overhead fluorescent lighting that was operated by wall-mounted switches when those lights were working. When working correctly, those lights would stay on for a minute or two: T13.18.

29. The following photograph extracted from Exhibit “B” at page 36, provides a perspective view from the top of the stairs and in the foreground it also shows the position of what were described in the evidence as reflective white rise tiles:

[Exhibit “B”, p 36]

30. The following photograph extracted from Exhibit “B” at page 38, provides a perspective view of the type of light fittings over the stairwell:

[Exhibit “B”, p 38]

31. Before the plaintiff’s injury, and since about May 2015, the light fittings located in the stairwell of the premises had a history of periodically not functioning. The reasons for this malfunction remained uninvestigated and did not become known to the defendants until after the plaintiff’s injury.

(3) - History of fault with the lighting

32. Before the plaintiff’s accident, her perception was that there were recurrent episodes when the stairwell lights were not working, following which the lights received maintenance and repair attention from an electrician, now identified as Mr Jacobson.

33. At 4.12pm on Tuesday 12 May 2015, the plaintiff’s flatmate, who was the tenant of Flat 4, sent an email to Mr Tesoriero in the following terms:

“The light in the stairwell is out again. It’s dangerous walking through the stairwell at night as we can’t see anything.

If you can get this sorted today that would be great.

Thank you”

[Exhibit “B”, p 136]

34. Following receipt of that email, on the same day, Mr Tesoriero instructed Mr Jacobson to go to the premises and attend to the identified lighting problem. Mr Jacobson did so. Mr Jacobson’s 12 May 2015 invoice described his remedial work as having comprised replacement of some lighting components listed in that invoice: Exhibit “1”.

35. At 5.42pm on 10 July 2015, 23 days before the plaintiff’s injury, the same tenant of Flat 4 sent another email to Mr Tesoriero advising that an additional person would be moving into that flat. That email also advised Mr Tesoriero of some changes in the bank account details for the payment of rent. Relevant to the stairwell lighting on the premises, that email went on to state:

“Whilst I think of it, the sensor light in the stairwell is out, yet again. I did see the electrician assessing the problem a few weeks ago but the light seems to work for a few days after being fixed and then stop working again.

Thank you”

[Exhibit “B”, p 137]

36. The reference in that email to a few weeks ago was not further defined by reference to the work that Mr Jacobson had carried out on 12 May 2015. That email indicates there had been a recurrent problem with the stairwell lighting.

37. There is no documentary evidence of Mr Tesoriero ever having issued work orders to Mr Jacobson to attend to the stairwell light fittings following receipt of the 10 July 2015 email. No records were produced through the evidence of Mr Jacobson to suggest or to indicate if, or when, he attended the premises after 10 July 2015 pursuant to any verbal request that might have been issued by Mr Tesoriero in relation to a need to give remedial attention to the stairwell lights for the problem identified in the email cited in [35] above.

38. After the plaintiff’s fall, Mr Tesoriero gave some consideration to lighting issues. This is evidenced by a statement that was prepared after the plaintiff’s injury became known to him. Paragraphs 20 to 24 of that statement set out his explanation of subsequent events, as follows:

“20.   After the incident, we had the electrician look at why the globes/tubelights were fusing within 3 months of being last repaired. He informed that all the wiring was fine but there was issues with the backup battery with diffuser double tube fluoro lights. He informed that the tube lights in the light fittings needed to be replaced.

21.   I contacted the light fitting manufacturer Clevertronics on the 18 August 2015 informing them that the tubes were blackening and blowing off after very little time.

22.   On 14 September 2015 Finesse Electrical replaced the light fittings. We have had no issues since the replacement of the Unit.

23.   On the 17 August 2015, I received a detailed email from Karen Than describing her injuries and the sequence of how it occurred. Until this time I did not know the severity of her injuries.

24.   Since the replacement of the tube lights there have been no issues with the lights. I am not sure what kind of footwear she was wearing at the time of the incident.”

[Exhibit “5”]

39. Following the plaintiff’s fall, Mr Tesoriero and the owners had some discussions about the premises’ stairwell lights not working. At 2.45pm on Thursday 6 August 2015, Mr Tesoriero emailed the owners in the following terms:

“We had the electrician have another look. He replaced the tubes again and the lights are now working fine. There is no charge for his return visit.

He has reported that the wiring to the light fittings seem fine because all the other building lighting was working fine, it's just these 2 x 60cm back up battery with diffuser double tube fluoro lights. These 2 light fittings must be faulty if they are rapidly burning the tubes a few weeks later, this was not normal.

He has quoted $220.00 per fitting to replace them. However the lights are reasonably new and shouldn't need replacing.

I'm investigating the matter further, I called up the light fitting manufacturer Clevertronics. After some investigations it seems that there may be a manufactures (sic for manufacturer’s) fault with these 2 fittings that was causing the tubes to blow out so rapidly. I met a representative from Clevertronics there today at 11.30am to show him.

I'm requesting we get 2 replacement fitting's [sic]. He said he would speak to his superior and let us know asap.

I'll keep you posted.”

[Exhibit “2”]

40. It appears that all Mr Jacobson did immediately after the plaintiff’s fall was to replace the tubes. At that time it was postulated that the light fitting in question might be faulty. No evidence was introduced to demonstrate there had been a manufacturing fault with the light fittings. Instead, it seems the type of light fitting and its use with sensors was problematic.

41. At 12.16pm on Monday 17 August 2015, Mr Tesoriero sent a further email to the owners in the following terms:

“Please see below, an email received on Sat 15/8/15 concerning an incident where a tenant in unit 4 has injured herself on the staircase.

Unit 4 emailed our office on 12/5/15 advising the lights were not working, it was repaired that same day, see copy of the invoice attached.

No further complaints have been received until I received a call on Monday 3/8/15, the electrician returned that same day and repaired the lights again. He has not charged for this repair.

Please see a copy of my email 6/8/15 concerning the stairwell lights and our request to have the manufacturer replace these lights that seem to be faulty because they are burning out the tubes very quickly. To date the manufacturer has yet to confirm if this would be done. [redacted name] [redacted mobile telephone number] from Clevertronics was the contact, I spoke to him this morning. He advised that the existing 2 staircase lights are not ideally suitable for this buildings situation being that there was a sensor and push button activations. The sensor light activation can burn the tubes rapidly. There was a (sic) another model light fitting with a2 (sic) activation that was better suited to a sensor light situation.

He was awaiting instructions from the NSW Manager for approval to replace the light fittings, he will let me know asap.

Our electrician has quoted $220.00 per light fitting for replacements.

We should contact the building Insurer GIO to advise of this incident.

Please let me know if you have any questions.”

[Exhibit “4”]

[Emphasis added]

42. The emphasised text within the above extract, which stated that Mr Tesoriero had received no further complaints after 12 May 2015 and to the time of the plaintiff’s injury was plainly wrong. This conclusion is evident from the tenant’s email dated 10 July 2015.

43. I construe the statement at paragraph 24 of Mr Tesoriero’s statement cited at [34] above, to the effect that there have been no issues with the lights since the replacement of the tube lights to be reference to the events before the plaintiff’s accident, as the actual light fittings were not replaced until 14 September 2015: Exhibit “5”, par 22; T144.50 – T145.20.

44. There was no contemporaneous record or documentary evidence to show that the electrician had attended to the stairwell lighting after 12 May 2015 and until the time of the plaintiff’s injury on 2 August 2015. I infer from those circumstances that there was no attendance by him in that period. In drawing that inference I have not overlooked the alternative possibility that he attended and made no charge for such attendance. I consider that possibility to be an improbable occurrence.

(4) - Accident circumstance

45. In the early hours of Sunday 2 August 2015, the plaintiff became aware of noise apparently emanating from somewhere within the building. She opened the front door of Flat 4, which was located on the first floor landing in the stairwell. She did so in order to investigate the source of very noisy loud music that could be heard from within the flat. As she did so, a neighbour from an adjoining flat had also opened his door in order to investigate the source of that noise. That neighbour ascended the stairs and the plaintiff followed him.

46. At that time, the stairway was in relative darkness. Attempts by the plaintiff to operate a wall-mounted switch located in the stairwell near her door had failed to operate to illuminate the overhead fluorescent lights in the stairwell. The failure of the switch to turn on the lighting in that location had been a problem that had been evident over many months before the plaintiff’s injury. The problem was that the fluorescent tubes had a history of repeatedly “blowing” or fusing and failing.

47. As the plaintiff ascended the stairs she was able to discern where she should place her footing on the treads of the steps because she was able to see the reflected juxtaposition of the white riser tiles on the stairs that faced her as she ascended the stairs.

48. In those circumstances, the plaintiff and her neighbour from the adjoining flat had failed to locate the source of the noise. As the plaintiff proceeded to descend the stairs to return to her flat, the dark conditions in the stairwell made it difficult for her to accurately or reliably discern the stair nosings and to differentiate between the surface of one black stair tread from the next one that was below. To accommodate that circumstance, the plaintiff maintained a hand hold on the adjacent handrail. She then slowly proceeded to descend the stairs.

49. As the plaintiff carefully continued her descent, mid-way down the stairs T14.17), due to the darkened conditions, she was unable to see the step nosing, and she misperceived the depth or the level of the next tread as her descending foot stepped out in anticipation of weight bearing onto the stair tread below. She then experienced an overbalancing movement, and an involuntary lurch forward. She then stumbled or tumbled down the stairs. In those events, her left foot struck the tiled landing area that was located a few steps below. When this occurred she continued to lurch forward. She then somehow landed on her feet, and she then rolled further over onto her right side, and onto her bottom. She attempted to demonstrate that sequence of events by making some bodily movements to that effect whilst she was in the witness box.

(5) - Injuries

50. The immediate result of the plaintiff’s fall was that she incurred painful and significant swelling to her left ankle and foot. She travelled by taxi to St Vincent’s Hospital for an assessment of her injury. At the hospital, she was examined, and she had an x-ray examination of her left foot. She was then assessed and sent home to await a reduction in the degree of her ankle swelling. It was not until the swelling went down that she could be operated upon.

51. During an operation performed on 11 August 2015, the plaintiff’s treating orthopaedic surgeon, Dr Tim Small, identified a fracture dislocation of the Lisfranc ligament and the medial / intermediate cuneiform joints of the plaintiff’s left foot.

(6) - Course of treatment

52. The plaintiff’s ankle dislocation was reduced during the open reduction and internal fixation operation carried out by Dr Small. Two screws were inserted into the ankle to stabilise the fracture. She then required a short stay in hospital and was discharged with a cast and crutches.

53. The plaintiff initially went to live with her parents to recuperate. She found it uncomfortable to use crutches, and she spent a significant period of time being bedridden at her parents’ home. Her parents provided her with the personal care that she required at that time. Her restricted mobility at that time was assisted with the aid of a knee trolley or scooter because she initially needed to avoid weight bearing on her left leg. She made an early return to work aided by that scooter, which meant that she had minimal time off work. In that time her recovery was periodically reviewed by Dr Small.

54. On 17 December 2015 Dr Small removed the fixation screws from the plaintiff’s left foot. The plaintiff periodically took pain-killing medication but she needed to cease taking Panadeine Forte because she later found that she had become pregnant. She has had extensive physiotherapy to her left foot. An indication of the frequency and the extent of that treatment appear in the schedules comprising Exhibit “E”.

(7) - Chronology of subsequent medical reviews

55. Before identifying my findings concerning the plaintiff’s accident-related disabilities I set out and review the chronology of medical assessments and treatment the plaintiff received, as follows:

1. On 4 August 2015, Dr Small initially issued an interim certificate of unfitness for work pending further treatment: Exhibit “B”, p 140;

2. On 11 August 2015, Dr Small performed an open reduction and internal fixation procedure on the plaintiff’s left mid-foot to treat the Lisfranc fracture dislocation of the left mid-foot. An intra-operative x-ray was performed: Exhibit “B”, p 149. He ordered non-weight bearing on the left leg for 6 weeks and arranged for a follow-up review 10 – 14 days post-surgery: Exhibit “B”, p 141;

3. On 24 August 2015, Dr Small issued the plaintiff with a continuation certificate of unfitness for work: Exhibit “B”, p 142;

4. On 31 August 2015, Dr Small conducted a review two weeks post-surgery and placed the plaintiff in a fibreglass cast. He suggested touch weight bearing on the left leg, and he suggested a review in four weeks’ time: Exhibit “B”, p 143;

5. On 28 September 2005, Dr Small reviewed the plaintiff six weeks post-surgery. He ordered removal of the cast and repeat x-rays, to be followed by the provision of a removable boot so as to permit weight bearing as tolerated: Exhibit “B”, p 144;

6. On 20 November 2015, Dr Small reviewed the plaintiff three months post-surgery. He suggested a procedure for screw removal in the third trimester of her pregnancy, and that procedure was then scheduled to take place as a day procedure on 17 December 2015: Exhibit “B”, p 145;

7. On 17 December 2015, Dr Small performed the above procedure as planned, and indicated his opinion that the plaintiff would be unfit for work for two days. He arranged for a two week follow-up review to assess the result of the procedure, and to remove the surgical sutures: Exhibit “B”, pp 146 – 147;

8. On 18 January 2016, Dr Small reviewed the plaintiff and he noted healing of the surgical scarring, but that the plaintiff was continuing to be concerned about minor irritation in the left mid-foot limping and mid-foot pain. He recommended continuation with physiotherapy to focus upon proprioception, range of motion, and lower limb exercises: Exhibit “B”, p 148;

9. On 20 February 2017, at the request of the solicitor for the plaintiff, Dr Small provided copies of his historical reports and operation notes as summarised above. He also identified the plaintiff has having a high chance of developing post-traumatic degenerative changes at the site of her injury in the ensuing years, which may require further surgery, but which would first require ultrasound guided injections of anaesthetic and steroid before considering a fusion procedure. He also predicted that the plaintiff may experience difficulty standing for prolonged periods, which would make her unsuited for employment involving excessive walking or standing for prolonged periods: Exhibit “B”, pp 138 – 139;

10. On 19 June 2017, at the request of her own solicitor, the plaintiff was examined by Dr P Endrey-Walder, a consultant surgeon: Exhibit “B”, pp 1 – 6. He conducted a review of the plaintiff’s history, her symptoms, and after examining her left foot and noting her surgical scarring, he considered that the plaintiff’s complaint of being on her feet for prolonged periods and aggravation of her symptoms would be something that would remain with her. He encouraged her to obtain bespoke orthotics. He agreed (at p 5), with Dr Small’s opinion that in the long term, it was more likely than not that the plaintiff would eventually come to a surgical fusion of her left mid-foot because of the high risk of developing post-traumatic mid-foot degenerative changes;

11. On 11 December 2007, at the request of the solicitor for the defendants, the plaintiff was examined by Associate Professor Paul Miniter, a consultant orthopaedic surgeon: Exhibit “B”, pp 7 – 15. After taking a history from the plaintiff and considering the documentary material provided to him, he examined her and set out his assessment. He suggested (at p 9), that a standing x-ray and a CT scan be undertaken to determine the presence or otherwise of developing degenerative changes. He assessed the plaintiff’s complaints as genuine, and (at pp 11 – 12), he associated her ongoing symptom complex, which included inability to walk for more than 10 minutes, and issues with negotiating stairs, directly to the subject accident. He considered (at p 11), that the prognosis for the plaintiff’s expected ongoing disabilities to be guarded, and requiring further investigation. He considered (at pp 13 – 14), that it would be unsurprising if she developed osteoarthritic changes in the left mid-foot which may require future treatment which he could not elaborate upon without the results of further investigations, and he considered that eventually the plaintiff’s capacity for employment would be affected, particularly if there was to be deterioration in the condition of her left foot.

1. On 11 May 2018, an x-ray of the plaintiff’s left ankle was reported as showing an in situ metal pin at the third / fourth metatarsal base, with mild degenerative change noted to be present in the talar tibial and sub-talar joints: Exhibit “B”, p 150;

2. On 17 June 2018, at the request of Dr Small, the plaintiff underwent and x-ray and CT examination of her left foot and ankle. The findings which were reported by Dr Cathy Nicholas, included a widening of the first inter-metatarsal space in the left foot and evidence of the presence of a tract following previous screw removal. No other abnormality was reported. It was not clear from the resultant report of that imaging as to whether the x-ray and the CT scans were examined and reported upon separately. The report seems to be a combined and undifferentiated report: Exhibit “B”, p 151.

56. There were no recent reports from Dr Small. The difference in descriptions between the reports of x-rays of the left ankle taken on 11 May 2018 and 17 June 2018 remained unexplained.

(8) - Disabilities that remain

57. As I have found the plaintiff to be a credible witness, and since I have accepted her evidence in its entirety, I propose to treat the histories she gave of medical matters, as summarised in the reports of the examining doctors, as evidence of the plaintiff’s post injury problems and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, at [70]; s 60 of the Evidence Act1995.

58. As an aftermath of her injuries and her subsequent surgical treatment, the plaintiff has been left with considerable ongoing disabilities, which she has obviously understated in her oral evidence. There was no suggestion that she was anything other than truthful in her account of her post-accident problems, either when describing them to the examining doctors, or when giving her oral evidence. My impression of her evidence was that she understated the effect that those problems have had upon her.

59. The plaintiff has been left with two residual pigmented surgical scars to the left foot, one scar measuring 7cm on the dorso-medial aspect, and the other measuring 3 cm on the medial aspect. These scars embarrass her and they undermine her confidence. Their presence limits her choice of footwear, both because she does not like to expose the scars to view, and because some shoes tend to rub on the scars. The plaintiff became tearful when describing those matters: T97.2 – T97.16. Some coloured photographs of those scars were tendered: Exhibit “F”.

60. The plaintiff’s other physical disabilities comprise reduced standing and walking tolerance of the order of 10 to 30 minutes depending upon the circumstances, difficulty carrying weights, increasing difficulty carrying her young children, difficulty weight bearing on the left foot, difficulty negotiating stairs, embarrassment at the unusual manner in which she must negotiate stairs, inability to wear high heeled shoes, pain and discomfort in the left foot after walking 200m – 300m, earlier onset of pain and discomfort in cold weather conditions, limping, a feeling of tension and discomfort in her left foot, and aggravation and exacerbations of discomfort on prolonged walking, such as walking between work meetings. By midday on a typical working day, after having walked between meetings and moving about, she feels that her left foot has become worn out.

61. As a result of her injuries, the plaintiff is now at a high risk of developing post-traumatic degenerative changes in the form of osteoarthritis in her left ankle. She described her left ankle as being a troublesome nuisance to her. At the plaintiff’s relatively young age, having already developed mild degenerative changes in part of her left ankle, as seen on a recent x-ray dated 24 May 2018, she is at a significant risk of requiring mid-foot fusion surgery to her left ankle as foreshadowed by Dr Small. If the need for that surgery were to materialise, she would then be left with a further restricted range of movement, and she would then be further impaired in her mobility, and she would also be left with even more surgical scarring.

62. The plaintiff requires intermittent medical and orthopaedic monitoring at uncertain intervals, and at some stage she will most probably need invasive ultrasound guided injections into her left foot to infiltrate a combination of local anaesthetic and steroid to treat her condition. She continues to take Celebrex at night and every second day, as prescribed by Dr Small. With her work and child care responsibilities she finds it difficult to make time to pursue further physiotherapy treatment, but she intends to do so.

63. The plaintiff’s problems and disabilities as described in the preceding paragraphs will be permanent, and will therefore significantly continue to adversely affect the plaintiff for the remainder of her years.

(9) - Work effects

64. As already observed, the plaintiff has had minimal periods of time away from her work as she returned to work with the assistance of mobility aids. She initially returned to work using her knee scooter for mobility. The periods during which the plaintiff has spent time away from work due to her injures, and the consequential economic loss that she has incurred have been the subject of agreement between the parties. Consequently, there is no need to analyse those periods for the purpose of calculating economic loss.

65. The nature of the plaintiff’s disabilities as described in the preceding paragraphs will have an adverse impact on her future work activities because of the restrictions she must accept, observe and accommodate. Accordingly, she claims damages for past and future loss of earning capacity. Even though at present there is no discernible recurring weekly loss. This does not mean she has not suffered a loss of earning capacity.

66. The foreshadowed plans for restructuring in her workplace raises questions about the permanency of her continued employment in her present position. This is a matter that must also be taken into account and reflected in any assessment of future loss of earning capacity.

(10) - Domestic effects

67. One of the immediate adverse effects of the accident on the plaintiff was that it impacted on her ability to care for herself and to manage her domestic life and related requirements. She therefore returned to live with her parents for a time, and they provided her with personal services that she was unable to perform for herself. That was not a long term arrangement as it was impractical. She makes a claim for the value of those past services, and for the future incidence of such services. Those matters will be the subject of further analysis in the course of my damages assessment.

(11) - Mitigation of losses

68. There is nothing from within the evidence or submissions of the parties to suggest the plaintiff has not taken reasonable steps to mitigate her losses. There is no suggestion that the plaintiff has in any way exaggerated her post-injury problems or claimed losses.

69. I now turn to consider the issues calling for decision, as identified at [26] above.

Issue 1 – Relevant risk of harm

70. The starting point of the liability analysis required in this case is to identify the relevant risk of harm: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, at [92], following Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [59].

71. The relevant risk of harm in this case was that of a person being injured when falling down the internal stairway during the hours of relative darkness at times when it was known to the owner occupiers and to the managing agents that the stairwell was available to be used by a range of people at random. This was in circumstances where it was likely that at night time the stairs might be unlit or lack reasonable lighting due to faulty lighting equipment, and where persons descending the stairs in the area of the plaintiff’s fall, would not be able to easily visually discern or differentiate the step nosings or treads due to the absence of lighting in the stairwell.

72. In those circumstances, especially where the tread surface of the stairs was black, or of a dark colour, without any discernible differentiation from each other in conditions of relative darkness, I accept that persons such as the plaintiff could foreseeably misplace their footing and fall whilst attempting to descend the stairs, even whilst holding onto an adjacent handrail.

Issue 2 – Whether there was an inherent risk of harm

73. It becomes necessary at this point to give consideration to the pleaded defence of inherent risk before considering matters such as duty of care and any alleged breach thereof.

74. Section 5I of the CL Act defines inherent risk as follows:

5I No liability for materialisation of inherent risk

(1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill.

(3) This section does not operate to exclude liability in connection with a duty to warn of a risk.

75. It is beyond controversy that the activity of descending stairs in reduced or absent lighting conditions carries with it the attendant risk of incurring a fall due to misplacing a foot in the course of descent. The relevant context was that the plaintiff had never had cause to use those stairs before: T62.40.

76. In my assessment, in the factual circumstances of this case, that risk should not been seen to represent an inherent risk within the meaning of s 5I of the CL Act. This is because first, it is something that could have been addressed and avoided by the exercise of reasonable care and skill, including by the provision of appropriate lighting maintained in working order (s 5I(2) of CL Act), and secondly, it was a risk about which those responsible for the safety of the premises should have issued a suitably worded and placed warning sign: s 5I(2) of CL Act.

77. The task or the burden of exercising reasonable care and skill against the risk of harm from falling on the stairs in darkened conditions could have involved first, the provision of adequate illumination to enable a lookout to be maintained whilst descending the stairs, and secondly, the provision of a suitably placed and worded warning sign as to the deficiency of lighting in the area.

78. In this case, whilst there was an inherent risk of falling when using the stairs in conditions of darkness, that risk was avoidable on an ascent of the stairs by the plaintiff being able to observe where to place her foot aided by the observable reflection of the white tiles of the riser portion of the stairs.

79. In those circumstances, when the plaintiff ascended the stairs, it would have been reasonable for her to assume, until it became otherwise known to her, that a similar means of reflective guidance from the white tile risers would also be available for her when descending the stairs. However, in this instance, the view was different on the way down. The reflective guidance on ascent was not available to assist her on descending the stairs because of the darkened conditions that prevailed and the different angle of observation available to the plaintiff on her descent: T32.48; T66.4 – T67.7.

80. In this case, that inherent risk of falling whilst descending the stairs could have been avoided by those responsible for the safety of the premises exercising reasonable care and skill either by the provision of lighting or by the provision of a suitable means of warning to users of the stairs that the lights were not functioning. The aptness of that view becomes apparent when comparatively considering what precautions would have been required to address the possibility of a need for an emergency evacuation of the building.

Issue 3 – Whether there was an obvious risk of harm

81. Before giving consideration to matters concerning the duty of care owed by the defendants, it is necessary to first give consideration to the pleaded defence of obvious risk. This is because, if obvious risk was found to exist, it may provide a statutory shelter for the defendants from the prospect of a liability finding being made against them. Section 5F of the CL Act defines an obvious risk as follows:

5F Meaning of “obvious risk”

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

82. Section 5G of the CL Act provides:

5G Injured persons presumed to be aware of obvious risks

(1) In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2) For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

83. In this case, for the reasons that follow, I do not accept as applicable the statutory defence of obvious risk as relied upon by the defendants pursuant to s 5F and s 5G of the CL Act.

84. The relevant risk in this case related to the activity of descending the stairs in conditions of relative darkness so that it was not possible to discern where the plaintiff should place her feet.

85. In contrast, at the time the plaintiff was ascending the stairs, it would not have been obvious to a reasonable person in the position of the plaintiff that the reflective vertical surface of the white riser tiles would not offer the same reflective guidance to stair users whilst descending the stairs. I consider that a reasonable person in the position of the plaintiff would have experienced the same problem the plaintiff had experienced, of an inability to discern the surface treads and nosing of the stairs, this being a latent and not a patent problem.

86. In this case, I consider that the question of obvious risk cannot be entirely quarantined from questions of duty of care and breach. This is because the duty of the occupier included the duty to ensure reasonable care was taken to maintain the lighting in the stairwell in the premises.

87. Although the stairwell lights were known to have previously malfunctioned at various times, followed by instances of remedial attention by the electrician, the timing of such remedial attention was, on the evidence, not made known to the plaintiff. Before her injury, she was not to know that on the evening or early morning in question, the lights would not be working. The recurrence of that problem had been random. The plaintiff’s attempt to operate the landing switch near the entrance to Flat 4 suggests that she was expecting the lighting to be working, although as events turned out, the lights were not in working order at that time.

88. In those circumstances, the defective lighting could not reasonably be considered to have been a static condition of the premises that constituted an obvious risk within the meaning of s 5F or 5G of the CL Act. For a risk to be obvious it must have been known or at least capable of being known to the plaintiff. Neither of those propositions applied in this case.

89. The plaintiff was not cross-examined concerning any familiarity on her part of the stairs remaining unlit during the hours of darkness despite the existence of light fittings in the stairwell.

90. When the plaintiff ascended the stairs she was able to differentiate the stairs one from the other. At that time she was therefore entitled to assume, reasonably, that the same would apply on a descent of those steps. The effect of the darkened conditions only became patent to her when the white tile risers were no longer visible to her on descent due to the different viewing angle, which was when she fell.

91. I find that on the balance of probabilities, at the time of the plaintiff’s fall, and beforehand, neither the plaintiff, nor a reasonable person in her position, on descending the stairs, would have been aware of the risk that she could fall because of the inability to differentiate between the step nosings and tread surfaces, having in contrast, been able to do so on her ascent of those stairs a few minutes earlier: s 5G(1) of the CL Act.

Issue 4 – Duty of care owed

92. The context of the duty of care owed by the respective defendants was in relation to the physical state of the premises over which the defendants had knowledge and control: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61, at [13], [18]; Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, at [45].

93. As owners and occupiers of the premises, the first, second, third, fourth and fifth defendants owed a duty to the plaintiff to take reasonable care. The existence of that duty presupposed that for her part, the plaintiff would also take reasonable care for her own safety: Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479; [1987] HCA 7, at p 488.

94. As the managing agents, the sixth and seventh defendants should also be regarded as occupiers of the premises at the time of the plaintiff’s injury because they had a sufficient degree of control over the inspection, maintenance and repair of the premises to justify that conclusion: Laresu Pty Ltd v Clark [2010] NSWCA 180, at [82] – [83], following Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [54].

95. The managing agents of the premises also had a duty of care to the tenants and the users of the stairwell in the building. That duty required the agents to take reasonable care against foreseeable risks of harm. The content of that duty and its extent was also informed by the terms of the management agency agreement between those defendants and the owners of the premises.

96. The management agency agreement between the owners and the agent was dated 18 January 1999. It came into force on 26 February 1999. Clause 10 of that agreement is in the following terms:

“10. The Agent is authorised to arrange and pay for repairs and maintenance to be done in accordance with the Principal’s obligations or as otherwise instructed provided that any expenditure in excess of $ NIL* for any item shall not be incurred without prior approval of the Principal except in an emergency or where the repairs are urgently required.

The Agent is authorised and instructed to pay the following from monies received on behalf of the Principal:

*(a) council, water, sewerage and drainage rates; *(b) insurance premiums; *(c) body corporate levies; (d) maintenance costs of *caretaking/ cleaning/gardening plus such other outgoings as the Principal may authorise.

…

* MAINTENANCE & REPAIRS REFER TO OWNER FOR APPROVAL”

[Exhibit “B”, p 153]

97. Although the terms of that agreement clearly gave the managing agents authority to identify and to arrange urgent or emergency repairs without the prior approval of the owners, it was plain that the agents had to refer proposed non-urgent and non-emergency expenditure for maintenance and repair to the owners for their prior approval.

98. Accordingly, both sets of defendants should be taken to have been occupiers of the premises as a consequence of the degree of control they each had in relation to the premises.

99. Notwithstanding the described practice that Mr Tesoriero had adopted in connection with arranging maintenance and repairs to the premises, clause 10 of the agreement, an applicable contractual term, required him to obtain the prior approval of the owners for all non-urgent and non-emergency repairs. The force of that contractual obligation was not lessened by time or circumstances, although it seems to have been in part observed in the breach. It governed Mr Tesoriero’s responsibilities and actions on questions of maintenance and repairs to the premises.

97. It would have been most unusual, if after any urgent or emergency repairs had been undertaken at the direction of the agents without the prior approval of the owners, that the agents would not have informed the owners of that fact as this would have involved likely expenses requiring either payment or reimbursement. As the agents were in control of that process, this served as a focal point of their duty of care.

Issue 5 – Whether there were breaches of duty of care owed

101. The assessment of whether or not the respective defendants were in breach of the duty of care they respectively owed must proceed by first identifying the relevant legislative provisions and the particularised case sought to be made by the plaintiff, identifying the content of the factual and the expert evidence, and having regard to the requirements of Pt 1A Div 2 of the CL Act.

Legislative provisions

102. Section 5B of the CL Act provides:

5B General principles

(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.

103. Section 5C of the CL Act provides:

5C Other principles

In proceedings relating to liability for negligence:

(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and

(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and

(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

104. Section 63 of the Residential Tenancies Act2010 provides as follows:

63 Landlord’s general obligation

(1) A landlord must provide and maintain the residential premises in a reasonable state of repair, having regard to the age of, rent payable for and prospective life of the premises.

(2) A landlord’s obligation to provide and maintain the residential premises in a reasonable state of repair applies even though the tenant had notice of the state of disrepair before entering into occupation of the residential premises.

(3) A landlord is not in breach of the obligation to provide and maintain the residential premises in a reasonable state of repair if the state of disrepair is caused by the tenant’s breach of this Part.

(4) This section is a term of every residential tenancy agreement.

105. Whilst a breach of any obligations arising under the Residential Tenancies Act does not in itself constitute a statutory cause of action, those obligations and their context are relevant to a determination of whether or not the owners or their agents had been negligent.

106. The assessment of the particularised claims must proceed in light of the plaintiff’s particularised case and the found facts.

Plaintiff’s particularised case

107. The plaintiff’s amended statement of claim filed on 19 February 2018 pleaded that the defendants were under a duty to take reasonable precautions against a risk of harm to the plaintiff which was foreseeable, not insignificant and which in the circumstances reasonable persons in the defendants’ position would have taken: 5B(1) of the CL Act. The plaintiff made the following allegations of negligence against the defendant owners:

1. Failure to properly inspect the said premises;

2. Failure to regularly inspect the said premises;

3. Failure to provide appropriate lighting to the stairs of the common area of the said premises;

4. Failure to repair the lights within the common area of the said premises;

5. Failure to inspect and repair the lights of the said premises after complaints by tenants within the said premises;

6. Failure by the sixth and seventh defendants to advise the first, second, third, fourth and fifth defendants of the defects within the said premises and/or to seek permission to rectify the defects;

7. Failure by the first, second, third, fourth and fifth defendants and/or by the agents of the first, second, third, fourth and fifth defendants being the sixth and seventh defendants to maintain the residential premises in a reasonable state of repair pursuant to s 63 of the Residential Tenancies Act;

8. Failure to provide warnings as to the condition of the stairs of the said premises.

9. Failure to highlight the stairs and/or nosings of the said stairs by way of non-slip nose capping and/or materials; and

10. Failure to engage experts to find out the cause of the regular light failure within the premises and/or to ensure that such light failure was repaired.

108. The inclusion in that pleading, of what has been referred to as the bastard conjunction “and/or” introduces an element of vagueness and confusion: St Clair v Timtalla Pty Ltd and Anor (No 2) [2010] QSC 480, at [11]; following Bonitto v Fuerst Bros & Co Ltd [1944] AC 75, at p 82. The use of that conjunction could wrongfully lead the reader to assume it involves causation when all it achieves is obscurity: Moage Ltd (in liq) v Jagelman [1998] 153 ALR 711, at p 716.

109. The plaintiff further claims that the defendant agents should have taken a number of available precautions against the risk of harm, as cited below:

1. Failure to properly inspect the said premises;

2. Failure to regularly inspect the said premises;

3. Failure to provide appropriate lighting to the stairs of the common area of the said premises;

4. Failure to repair the lights within the common area of the said premises;

5. Failure to inspect and repair the lights of the said premises after complaints by tenants within the said premises;

6. Failure by the sixth and seventh defendants to advise the first, second, third, fourth and fifth defendants of the defects within the said premises and/or to seek permission to rectify the defects; and

7. Failure by the first, second, third, fourth and fifth defendants and/or by the agents of the first, second, third, fourth and fifth defendants being the sixth and seventh defendants to maintain the residential premises in a reasonable state of repair pursuant to s 63 of the Residential Tenancies Act.

110. Before giving consideration to those claims it is necessary to undertake a further evaluation of some of the relevant facts.

Factual evidence relevant to the negligence arguments

111. In the paragraphs that follow I set out my factual findings on the evidence that touches upon matters concerning the duty of care owed and the alleged breach thereof.

Evidence of the plaintiff

112. In November 2014 the plaintiff had moved into the building to share the occupancy of Flat 4: T30.3. Referring to the stairwell light, she said “there’s usually always a problem with the light”: T30.22. She agreed that it was about once per month or something like that: T30.25. Before her accident she had traversed up and down the stairs both when the lights were working and not working: T30.43 – T30.38. Before her injury on 2 August 2015, she had no cause to use the stairs to the upper level as she did on the occasion she was injured: T30.50 – T31.2.

113. The plaintiff was unable to recall for how long before her accident the lights were not working: T31.24. The lights were fixed as a regular occurrence on a variable basis on the first or second or third day after they failed to operate: T14.35 – T14.40. She could not recall the lights ever being fixed between 10 July 2015 and the day she was injured: T31.28. All she could say was that on a general basis, when the lights went off, they were usually fixed either the next day or within a week: T31.29. She agreed it was possible that interval could have been longer than a week: T31.43. On behalf of the agents, it was conceded that a delay of one week was not acceptable: T178.37.

114. Despite earlier experience of historical malfunction of the stairwell lighting, there is no reliable evidence that the plaintiff either knew or ought to have known that the stairwell lights were not working on the morning in question when she decided to investigate the source of the noise in the building. She only came to realise the stairwell lights were not working when she unsuccessfully operated the manual switch just before she started to ascend the stairs. In those circumstances she had a legitimate interest in going up the stairs to investigate the noise: T36.8.

115. As earlier observed, when the plaintiff ascended the stairs she was able to see sufficient reflection from the vertical white tiled risers to guide her way up the stairs: T32.46. At that time it was reasonable for her to continue to ascend the stairs. It was not until shortly after she had started to descend part of the way down the stairs that the lack of visibility of the stair treads and nosing became problematic for her: T64.50. This caused her to use the handrail. The actual step on which she had fallen is immaterial. Her footwear was not raised as an issue in the proceedings.

Evidence of Ms Galletta

116. The managing agency arrangements between the owners and the sixth and seventh defendants as agents had been in existence since 1999: T106.46 – T107.7. The manner in which the agents observed the requirements of that agreement was that they would not call the owners for minor things: T107.40. The owners relied on the managing agents to report to them about works to be carried out (T111.16), but in those circumstances, the owners would not necessarily know about tenants having reported things such as failure of lights and the stairwell being in darkness at various times: T111.46.

117. The expectation of the owners was that the agents would rectify such problems immediately once they became known: T111.50 – T112.2. That evidence did not derogate from the terms of the agreement that placed a responsibility on the agents to keep the owners informed of relevant matters and to obtain approval from the owners for maintenance and repair work.

118. That said, I accept the submission made on behalf of the agents that the owners did not delegate all of their inspection and maintenance responsibilities to the agents. The owners retained sufficient control to continue to engage a duty of care to users of the stairway on the premises.

119. The stairwell was completely and adequately visible in daylight hours because of a very large skylight over the stairs, but at night, the lighting was operated by a combination of a push button switch system located near the apartment doors, and movement sensors: T112.30 – T112.47. The owners’ expectation of the agents was that if there was a delay in repairing lighting for whatever reason, there should be suitable warnings given about the stairs being in an unlit state: T112.27.

120. In May 2015, due to recurring problems with the stairwell lights, Mr Jacobson, was engaged by the agents as the electrician to change the sensors, the light fittings and the light globes in the stairwell: T113.1 – T113.12; T116.40. The agents duly informed the owners of those circumstances and Mr Jacobson was paid for that work.

121. Ms Galletta’s belief was that after May 2015, and before the plaintiff’s fall, the fluorescent tubes of the stairwell light fittings had been repeatedly replaced after having been “constantly blowing out”, leading to the electrician replacing them “again”, and on each occasion, the lights were then working again but circumstances had not been drawn to the attention of the owners until after the plaintiff’s injuries: T113.33 – T115.25.

122. Ms Galletta’s assumption that the lights had been fixed on occasions between 12 May 2015 and the date of the plaintiff’s injury is not supported by any documentary evidence from the electrician or from the agents. A proper reading of the evidence of Mr Jacobson, who was the electrician engaged by the agents, did not support the proposition that the lights had been fixed in the period 12 May 2015 and August 2015: T173.35 – T173.37; T192.7 – T192.25.

123. The cause of recurrent failure of the light fittings only came to the attention of the owners after the plaintiff’s accident, and it was following those events that Ms Galletta and another co-owner had been told by the agents that the tubes were not compatible with the light fittings. That issue was left to the agents to investigate and to pursue: T115.21 – T115.30.

124. The circumstances were that the owners had become aware and concerned that further expense was anticipated beyond the $268.40 that was the subject of Mr Jacobson’s invoice dated 12 May 2015: Exhibit “1”; T116.14.

125. In the period between 12 May 2015 and the plaintiff’s accident on 2 August 2015, neither the agents nor the owners had incurred any expenses for remedial electrical work: Exhibit “3”. This raises a question as to whether Mr Jacobson’s evidence on certain matters to do with light fitting inspection and maintenance after 12 May 2015 and before the plaintiff’s accident (at T170 – T172) should be accepted.

126. The owners had not been informed of the email dated 10 July 2015 from the tenant of Flat 4 complaining about the non-functioning stairwell lighting before the plaintiff’s accident: T118.50 – T119.5. That was consistent with Mr Tesoriero’s email to the owners on 17 August 2015, where it was asserted that no further complaints had been received until the plaintiff’s injury on 2 August 2015: Exhibit “4”.

127. In contrast, Mr Tesoriero had emailed Ms Galletta after the plaintiff’s accident, and in that email he had stated that between May 2015 and the plaintiff’s injury on 2 August 2015, no further complaints had been received about the lighting: T118.37. That statement attributed to the agent was not correct, and it was inconsistent with the content of Exhibit “B” at p 137, which comprised an email dated 10 July 2015 addressed to Mr Tesoriero from the plaintiff’s flatmate, the lessee of Flat 4.

128. In cross-examination, Ms Galletta conceded that the blowing of the lights had been a constant problem well prior to 2 August 2015: T120.49 – T121.6. She said she had assumed, prior to the plaintiff’s accident, that the electrician had fixed the problem by changing the lights: T121.11. Her evidence in that regard was based on assumption rather than a precise understanding of the facts and the sequence of those facts.

129. Although Ms Galletta and the other owners had from time to time inspected the common areas of the property this was apparently limited to daylight hours: T133.5 – T133.12. In those circumstances, the malfunctioning state of the stairwell lighting would not have been apparent to them. She did not claim to have inspected the operational status of the lighting nor did she claim to have carried out inspection or testing of the stairwell lights at night time.

130. Ms Galletta stated that once the electrician had attended to the lights in May 2015, her understanding from the agents was that the problem with the lights in the stairwell had been fixed: T137.9.

131. That evidence needs to be compared with that of Mr Adrian Tesoriero.

Evidence of Mr Adrian Tesoriero

132. Mr Adrian Tesoriero’s evidence has already been summarised at [10] to [16] above. As indicated at [18] above Mr Tesoriero’s evidence requires further evaluation which now follows.

133. Mr Tesoriero stated that in the main, his practice was to notify the owners of major repairs: T140.49. That evidence demonstrated either Mr Tesoriero’s incomplete understanding of the effect of the management agency agreement he had with the owners, or that he was disregarding an essential term of that agreement: Exhibit “B”, p 153.

134. The plaintiff submitted that key aspects of Mr Tesoriero’s evidence, such as his claim of having regularly inspected the premises, and that the faulty lights were attended to by the electrician whenever required before the plaintiff’s accident should not be accepted: T193.33 – T193.39.

135. I accept the force of that submission as apt in this case. Mr Tesoriero did not have a sufficient basis for that evidence as summarised above, to be accepted. He could not recall the relevant dates of his inspections and testing of the lights: T154.36 – T154.41. He claimed that he would walk past and make “pop in” visits and have a look around and undertake a general inspection: T154.23; T157.25. He said this occurred in daylight hours: T154.34. He did not suggest he undertook any testing of the stairwell lights in the hours of darkness. He stated that one could detect the working order of the lights in daylight hours because on walking into the foyer past the front door those lights would activate during the day: T156.45 – T157.4.

136. I find it improbable that he inspected the lights and found them in working order as he claimed given the evidence of the plaintiff as to the pattern of frequency of malfunction. If he had found the lights not to be working, and in need of maintenance or repair, I consider it improbable that he would have arranged repairs without keeping business records of his inspections at which times malfunction was detected, and of the arrangements made with the electrician for remedial attention to occur.

137. I consider that Mr Tesoriero has mis-recalled the sequence of events concerning his inspections, testing and attention to the stairwell lighting. This has made his evidence unreliable. I do not accept his evidence that between May 2015 and August 2015 “the light went off and it was repaired” and that after 11 July 2015 he spoke to the electrician to go back and have another look at the lights: T142.19; T143.48 – T144.8. The source of his knowledge that the lights had been fixed on that occasion remained unstated: T144.10.

138. I cannot accept his evidence given the effect of his correspondence to the owners misrepresenting that there had been no further complaints about the lighting received between 12 May 2015 and the plaintiff’s accident in August 2015. The fact of the tenant’s email dated 10 July 2015 to the contrary, which must have been within his knowledge, indicates to me that Mr Tesoriero’s evidence should not be accepted on critical matters of fact in dispute. He ultimately acknowledged that his email to the owners containing that representation was not correct: T151.30.

139. Furthermore, I do not accept Mr Tesoriero’s explanation for not having sent Mr Jacobson a formal work order because the arrangements were casual: T151.48. His evidence on that matter revealed a degree of frustration, in the context where he acknowledged a lack of recollection as to relevant dates.

140. Mr Tesoriero’s explanation on a critical matter was almost incoherent, as is evident in the following extract of his cross-examination:

“Q. After this complaint in July of 2015 are you suggesting, or are you saying that you engaged Justin to go out to fix the lights?

A. Yes.

Q. No work order?

A. No work order.

Q. Who paid for it?

A. Well, he didn't charge because he fixed it recently, like he even like I said, there was he mentioned it earlier that he'd been back after and didn't charge because he'd already $268 in May and he didn't charge for new globes when he did it a few weeks later, in July.”

[T151.5 – T151.16]

141. I have concluded that Mr Tesoriero’s evidence was unreliable on the identified key matters in dispute.

Evidence of Mr Justin Jacobson

142. Mr Jacobson had been carrying out domestic and rental electrical maintenance and repair work on call 24 hours per day for the agency for about 5 – 6 years: T165 – T167. Mr Jacobson was somewhat unclear as to dates of the timing of certain events that took place at the property in question: T174.20.

180. In those circumstances, the plaintiff was, as best she was able to do looking where she was placing her feet. In my assessment, she did not fail to keep a proper lookout. It was the darkened conditions and the unrevealed position of the stair treads and nosings due to those darkened conditions which had caused her to overstep or misstep during her descent of the stairs, and to then fall.

181. The plaintiff plainly had a good enough reason for investigating the source of noise in the building. In those circumstances, it was reasonable for her to ascend the stairs to try and ascertain the source of the noise, albeit in darkened conditions. The reflection from the white riser tiles aided her progress in that regard. It was not until she started to descend the stairs that she misplaced her footing due to the darkness of the stairs without other sources of available illumination. She had to negotiate her way back down the stairs which could not have been otherwise illuminated until daylight occurred.

182. On her descent, she was holding the handrail. In my view, she had taken whatever reasonable precautions were available to her in the circumstances.

183. The fact that the plaintiff was able to see the reflected white tiles of the risers on her ascent of the stairs did not necessarily suggest it was foreseeable that she would not be able to see that guiding reflection on descending the stairs. The defendants have therefore failed to establish the first precondition for a contributory negligence finding: s 5B(1)(a) of the CL Act.

184. The precaution that the defendants assert the plaintiff should have taken against the risk of falling was to not use the stairs at all. I do not accept that a reasonable person in the position of the plaintiff would have refrained from using the stairs. The plaintiff could see the stairs sufficiently to ascend them. The inability to see them on the descent did not require that she remain upstairs until there was sufficient daylight to descend, particularly as there was no obstacle located on the stairs. The plaintiff acted reasonably. The defendants have failed to establish a further essential precondition for a contributory negligence finding: s 5B(1)(c) of the CL Act.

Conclusion on contributory negligence

187. In my view, for the above reasons, the defendants have failed to discharge the burden of showing there was contributory negligence on the plaintiff’s part. There was no contributory negligence on the part of the plaintiff.

Issue 8 – Apportionment between defendants

188. Section 5 of the Law Reform (Miscellaneous Provisions) Act enables a just and equitable determination of apportionment of liability between tortfeasors in respect of damage suffered by persons in the position of the plaintiff.

189. On 29 March 2018, pursuant to that Act, the first, second, third, fourth and fifth defendants served a cross-claim against the sixth and seventh defendants (the first cross-claim) claiming a complete indemnity from those defendants in respect of any liability they may have to the plaintiff. On 3 April 2018, also pursuant to that Act, the sixth and seventh defendants issued a cross-claim against the first, second, third, fourth and fifth defendants (the second cross-claim). The respective cross-claims are defended.

190. The first cross-claim, by the owners against the agents, is framed in breach of contract and in negligence. The contract relied upon by the owners comprised the management agency agreement that was still on foot at the time of the plaintiff’s fall.

191. The owners claim that contrary to an express term in the agreement, the agents failed to inform the owners that on 10 July 2015, the tenant of Flat 4 had reported that the sensor light in the common area of the stairwell was not working and required repair.

192. In that first cross-claim, the owners also claim the agents were negligent because they had failed to arrange repairs of the light in the common area of the stairwell. In that regard, in their cross-claim, the owners repeat as against the managing agents, the particulars of negligence relied upon by the plaintiff. In their defence to the first cross-claim, the agents deny all pleaded claims of alleged liability on their part.

193. In the second filed cross-claim, the agents seek contribution or indemnity from the owners for any liability that might be found against them for the plaintiff’s damages. The basis of that claim for indemnity arises from the terms of clause 12 of the management agency agreement, which provides as follows:

“The principal undertakes to indemnify and keep indemnified the Agent against all actions, suits, proceedings, claims, demands, costs and expenses whatsoever which may be taken or made against he (sic for the) Agent in the course of or arising out of the proper performance or exercise of any of the powers duties or authorities of the agent under this agreement.”

194. The owners have refused to indemnify the agents for any liability to the plaintiff arising from that contractual provision.

195. In my view, in this case clause 12 of the management agency agreement does not operate to protect or indemnify the agents from liability for the plaintiff’s damages at either the suit of the plaintiff or the owners. This is because that kind of protection is only engaged if the agents had properly performed their obligations. In this case, I have found that they did not do so.

196. Following receipt of the email dated 10 July 2015 from the tenant of Flat 4, the agents took no steps to undertake their own contemporaneous inspection of the problem even though it was a short walking distance from their office. This was in circumstances where the problem needed urgent remedial attention, or at least the consideration of issuing suitable warnings, before the next nightfall if immediate remedial attention was not possible before nightfall. Instead, Mr Tesoriero said he simply contacted the electrician to seek to have the problem addressed.

197. In those circumstances, he did not investigate with the electrician the nature or cause of the problem, which was a recurrent problem rather than an isolated incident. He did not bring the problem to the attention of the owners for the purpose of them deciding what they wished to have done in the circumstances. He did not appear to have responded to the tenant’s email reporting the problem. He did not appear to have followed the issue up with the electrician in order to ascertain the cause of the problem and to ascertain what remedial steps had been taken in circumstances where the problem had been a recurrent one.

198. In my opinion, the series of omissions identified in the preceding paragraph were not in conformity with the contractual precondition of “proper performance” that would otherwise engage the indemnity contemplated by clause 12 of the management agency agreement. Accordingly, in this case, that clause is inapplicable and does not operate to provide the agents with the protection of an indemnity that they seek to enforce as against the owners. A failure on the part of the agents to properly perform the identified aspect of their contractual duty renders the indemnity clause inoperative: Laresu Pty Ltd v Clark [2010] NSWCA 180, at [89] – [91].

199. I do not regard the evolved practice as adopted by the agents in determining when there should be reporting to the owners of matters of maintenance and repair of the premises to have had the effect of abandoning the applicability of the proper performance provision within clause 12. Nor did that evolved practice negate the requirement that matters of maintenance and repairs be referred to the owners. The agents observed clause 12 by breach, not fulfilment.

200. Furthermore, insofar as Mr Tesoriero might have inspected the functioning of the stairwell lighting in the premises from time to time, it is difficult to see how a daylight inspection of the functioning of sensor lighting, which had a history of problematic functioning, could have been at all adequate in the circumstances.

201. As I have found both the owners and the agents to have been negligent, and in breach of the duty of care they respectively owed to the plaintiff, it becomes necessary to evaluate the respective cross-claims for apportionment. That evaluation which must proceed according to what is just and equitable in the circumstances having regard to an assessment of the respective culpabilities of the two sets of defendants in terms of causative potency of the harm occasioned to the plaintiff: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529, at [10].

202. The evaluation of the question of causative potency is guided by the provisions of s 5D of the CL Act.

203. The liability of the owners arises because of the failure to inspect and maintain the stairwell lighting in working order. That liability arises in circumstances where the owners knew that there had been a history of malfunction of the lighting but in substantial part, they relied upon the agents to inspect and to respond reasonably and promptly to any known need to take prompt remedial action when repairs were necessary.

204. In this case, that analysis might be too simplistic because the owners had, for a commercially bargained fee, in a material way, delegated the inspection, maintenance and repair obligations as occupiers to the managing agents. This cloaked the agents with the burden of those duties of the occupier save as to the making or approving of decisions on the cost of such work: Bevillesta Pty Ltd v Liberty International Insurance Co [2009] NSWCA 16, at [53].

205. In response to that delegated duty, the agents, who had a considerable portfolio of managed rental properties, failed to keep a contemporaneous record of what was actually done to discharge that duty. Without such contemporaneous records, such as occurred with the 12 May 2015 repairs, I do not consider that the evidence of Mr Tesoriero and Mr Jackson is a reliable source of evidence for concluding that duty had been properly discharged.

206. Although there was no evidence as to the rate of rent for the premises, I infer from the tenant’s email dated 10 July 2015 that a commercial rate of residential rent was being paid to the owners as landlords. That inference also arises from the long-term engagement of the agents on a commercial basis. The evidence suggests that although the premises were not new, they were let in a reasonable state of repair.

207. In those circumstances, the owners had an obligation to maintain the premises in a reasonable state of repair, including in respect of the stairwell lighting for night time use: s 63 of the Residential Tenancies Act.

208. Whilst that provision places a burden on the owners as landlords, it does not give rise to an absolute liability, it does require that the owners exercise reasonable care and skill. That duty may be in part delegated to managing agents, as occurred in this case, but with the proviso that the owners retained control over matters of remedial and maintenance work, and the related expenditure.

209. The retention of that degree of control exposed the owners to an ongoing duty to make assessments and continue to exercise reasonable skill and care. The evidence indicates that the owners made no enquiry of the agents as to the cause of the lighting problem as at 12 May 2015. That was a passive approach which was an insufficient discharge of the more active duty required of them to maintain the premises, including the lighting, in a reasonable state of repair.

210. Those failures must be balanced against the failures of the agent in respect of the condition of the lighting.

211. In the paragraphs that now follow, the respective culpabilities are assessed and balanced.

212. The failure of the agents was that they did not inspect the lighting at night to ascertain whether it was functioning correctly at any time after the tenant’s email dated 10 July 2015 which informed the agents of that fact. This failure occurred where the managing agent was in a position which controlled the knowledge that was conveyed to the owners as to the state of the premises, because the owners had in effect delegated to him the task of inspecting and supervising maintenance of the premises. That was a sentinel circumstance which influences the apportionment. The owners argued this operated against the agent as estoppel by conduct, especially where the owners had no specific knowledge of the faulty lighting and had put their faith in Mr Tesoriero to manage the property.

213. In my view, the deficiency of the management by the agents was that there was no record of any remedial work undertaken by Mr Jacobson, either from Mr Tesoriero or on the part of the agency. In those circumstances, I do not accept that the remedial work was carried out between 10 July 2015 and 2 August 2015 as suggested by the agent and by Mr Jacobson. If it had been carried out, this would have involved significant expense, as is evident from Mr Jacobson’s prior work and the related earlier invoice dated 12 May 2015. I consider it was unlikely that Mr Jacobson would not have rendered an invoice for that type of work and for that level of expense. There was no reply to the email dated 10 July 2015 from the tenant to suggest that the identified problem had been fixed. The owners were not told of the content of the email dated 10 July 2015 from the tenant on an important safety issue.

214. In undertaking the required balancing exercise, it is difficult to see how there could have been a relevant failure on the part of the owners when they had not been made aware of the specific problem that gave rise to the need to take the reasonable care that was required in response to the 10 July 2015 notification by the tenant of the existence of that problem. That is particularly so in circumstances where the owners had delegated that aspect of their duty to the agents in a reasonable, businesslike, and commercial manner, for a fee.

215. In evaluating the causative potency of the respective failures, I consider that the agents should bear the entirety of the burden of the plaintiff’s damages because the owners were not on site or near the premises, and were entirely reliant upon the agents to inform them of, and to manage issues concerning safety on the premises. This is so particularly as the agents were the only point of contact with tenants, and in this case, the agents had the knowledge of a specific lighting problem drawn to their attention by the tenant’s email dated 10 July 2015 and that matter was not communicated to the owners. This information was controlled by the agent. The agent had the last opportunity to avoid the adverse outcome.

216. From 10 July 2015 to 3 August 2015, the agents were aware of a problem with the stairwell lighting. From the agents’ familiarity with the managed premises, they should also be taken to have been aware that the lighting problem notified to them on 10 July 2015 required urgent remedial attention. In my view, they must also be taken to have known that for so long as the stairwell lighting was not re-instated to working order, both with regard to the sensors and to the manual switches, there was a foreseeably dangerous condition during the hours of darkness when tenants and other lawful entrants onto the premises would be likely to use the stairwell linking the upper and lower levels of the premises.

217. Mr Tesoriero said he responded to the 10 July 2015 email notification by asking his preferred electrician, Mr Jacobson to attend to the problem. No written work order was issued to support that request. No specific instructions were given other than to fix the problem. No confirmation was obtained from Mr Jacobson as to when the work would be completed. Mr Tesoriero seems to have assumed, without further enquiry or inspection, that the work had in fact been carried out satisfactorily. This was despite Mr Tesoriero’s obligation to refer such matters to the owners for their approval. In light of the absence of any repair records from Mr Jacobson concerning the period from 12 May 2015 to 2 August 2015, on his evidence and the evidence of Mr Tesoriero, I am not persuaded that the remedial work described by Mr Tesoriero was carried out on the stairwell lighting in that period.

218. On 10 July 2015 the agents needed to be satisfied that prompt and effective remedial action had been completed by the electrician before the next nightfall. Absent that remedial work being reasonably achievable before the next nightfall, the agents needed to ensure that other prudent safety measures were undertaken.

219. The only such measures that seemed practicable in those circumstances would have been to either install temporary lighting that remained on to keep the stairs illuminated at night, as identified by Dr Cooke, or if that was not practicable or achievable by the next nightfall, then suitable warning signs should have been placed at the entrance to the premises, and the tenants should also have received warnings that the lighting was not working.

220. In my view, the remedial responsive steps described above involved relatively little burden on the managing agents. The cost would have been payable by the owners. The taking of those steps was consistent with the management responsibilities of the managing agents without reference to the owners. This was because of the need for those steps to be undertaken urgently in the interests of safe stair use at night.

221. The agents were also obliged, as soon as was practicable on or after 10 July 2015, to inform the owners of the existence of a safety issue with the lighting. They did not do so. I consider that if the agents had done so, the owners would most probably have acted promptly, in line with the commonsense suggestions identified in the evidence of Dr Cooke, as summarised at [154] above. The evidence of Ms Galletta confirms that she would have acted appropriately had she known of the problem: T112.18 – T112.25.

222. The failure of the agents to implement those steps satisfied the requirements of s 5B, s 5C and s 5D of the CL Act in terms of a negligence finding against them. Those failures were also in breach of clause 10 of the management agreement that subsisted between the owners and the agents.

223. The agents were in a far better and effective position than the owners to take effective action against the relevant risk of harm where, if the lighting problem was left unresolved by nightfall, this would leave the stairwell in a dangerous state.

224. In those circumstances, in my assessment, this is an appropriate instance where the “but for” test of causation should be applied to the omissions of the managing agents on the cross-claims: s 5D(1)(a) of the CL Act. In viewing the events from the perspective of an apportionment, the agents had the last opportunity to influence a different outcome. Furthermore, given the commercial arrangements that subsisted between the owners and those agents, I consider that the scope of the agents’ liability should extend to indemnify the owners: s 5D(1)(b) of the CL Act. No exceptional circumstances have been identified: s 5D(2) and (4) of the CL Act.

225. In the described circumstances, I consider that the owners would have responded promptly and correctly if they had been notified of the content of the tenant’s email dated 10 July 2015 concerning the state of the lighting: s 5D(2) of the CL Act. Had this occurred, the plaintiff would not have misplaced her footing in darkened conditions and fallen down the stairs. Accordingly, in my assessment, the agents should bear 100 per cent of the responsibility for the harm occasioned to the plaintiff.

Issue 9 – Assessment of damages

226. In the paragraphs that now follow, I set out my assessment of the plaintiff’s entitlement to damages.

Actuarial factors

227. At the plaintiff’s present age of 40 years, she has a statistically estimated remaining median life span of 48.42 years. The 5 per cent projection multiplier for 48 years is 966.6. There is no suggestion from within the medical or other evidence to suggest that the plaintiff’s estimated life span should be in any way discounted. The plaintiff identifies a future working life of 30 years to age 70. The 5 per cent projection multiplier for 30 years is 822.0.

Non-economic loss

228. On behalf of the plaintiff, it was initially submitted that damages for non-economic loss should be assessed at 32 per cent of a most extreme case pursuant to s 16 of the CL Act. In final submissions, the range was identified as being between 32 and 34 per of a most extreme case. In my view, those percentages are towards the upper end of the range for such damages.

229. The defendants initially submitted that there should not be any monetary assessment for non-economic loss as the 15 per cent threshold for such damages had not been reached. During the course of the hearing the defendants revised their position on s 16 damages. The first five defendants revised their submission to 20 per cent of a most extreme case: MFI “7”. Ultimately, the revised position of the sixth and sevenths defendants made an allowance of 20 per cent for this head of damage.

230. In my view, the respective submissions of the defendants, as cited in the preceding paragraph, seek to unreasonably minimise, understate, and do not adequately reflect the extent to which the plaintiff’s injuries, and the sequelae of those injuries have adversely impacted upon the amenity of her life and her reduced ability to enjoy that amenity because of her consequential pain and suffering.

231. In undertaking the required assessment I have taken into account the guiding principles, namely the need to make a factual determination of the representative percentage compared to a most extreme case, rather than arrive at a discretionary evaluation: Hall v State of New South Wales [2014] NSWCA 154, at [31]–[32].

232. In my view, having regard to the plaintiff’s injuries as described in the medical evidence summarised at [26] above, and having regard to the plaintiff’s disabilities as summarised at [28] to [34] above, including the cosmetic and functional effects, as well as the work and domestic effects as described at [35] to [38] above, a much higher percentage assessment of damages for non-economic loss than as submitted on behalf of the defendants is called for to adequately compensate the plaintiff for her pain, suffering and the loss of the amenity of her life.

233. This is because those matters will continue to adversely affect the plaintiff for her remaining life span, with the real prospect for deterioration and for degenerative changes to occur, which would give rise to an associated need for surgery. In my view, those matters, and the fact that the plaintiff has been left with multiple cosmetically disfiguring surgical scars on her left foot, call for a significant assessment of s 16 damages.

234. Accordingly, I consider that a reasonable assessment of those matters that is both fair to the plaintiff and not unfair to the defendants, in the terms required by s 16 of the CL Act, is 32 per cent of a most extreme case. I therefore assess the plaintiff’s damages for non-economic loss at 32 per cent of a most extreme case, which is the monetary equivalent of $190,500.

Past economic loss

235. On behalf of the plaintiff it was initially submitted that damages for past economic loss should be assessed at $5,542. In contrast, the first five defendants submitted that damages for past economic loss should be assessed at $3,000. The sixth and seventh defendants submitted that there should be no assessment for such damages.

236. In view of the plaintiff’s time away from work due to the immediate effects of her injury and the monetary loss that followed, I am unable to accept the submission made by the sixth and seventh defendants that there should be no damages awarded for past economic loss.

237. I consider the submission made on behalf of the first five defendants for the plaintiff’s past economic loss to be assessed at $3,000, represents an artificial and arbitrary reduction in the loss submitted on her behalf. I find that loss is reasonably and conservatively calculated since the plaintiff made significant mitigatory efforts by her early and stoic return to work.

238. I therefore assess the plaintiff’s damages for past economic loss in the amount of $5,542.

Future economic loss

239. On behalf of the plaintiff it was initially submitted that damages for future diminution in earning capacity should be in the form of a lump sum buffer amount assessed at $100,000. It was subsequently submitted the appropriate range was $100,000 to $150,000. In contrast, the defendants submitted that there should be no assessment for such damages.

240. The plaintiff earns $95,000 gross in her present employment. This equates to $1125 per week net. Whilst her position is regarded as being permanent, she has described some anticipated restructures in her workplace which may have the effect of changing that continued earnings assumption.

241. If the plaintiff were to be made redundant, as is possible, she would have to compete with more able-bodied persons for employment on the open labour market. Whilst prospective employers are not permitted to discriminate in that regard, when assessing damages, courts are not blind to the obvious preferential factors that are at play in such circumstances. The plaintiff faces the prospect of being vulnerable to being disadvantaged by such potential factors. That is a significant potential vicissitude that could well operate adversely to the interests of the defendants in this case.

242. For damages regarding future loss of earning capacity to be monetarily assessable, it is not only necessary to show that the plaintiff has suffered an impairment in her earning capacity, but it is also necessary to show that such impairment also has the ongoing deleterious effect of causing her to suffer financial loss: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5; Graham v Baker (1961) 106 CLR 340; [1961] HCA 48.

243. Ordinarily, in this type of case it is necessary to identify the assumptions concerning the plaintiff’s most likely circumstances but for her injury as a precursor to assessing damages for future economic loss: s 13 of the CL Act. The defendants argued that the two-stepped process of determining what the plaintiff’s most likely circumstances would have been but for her injury, and the extent to which those circumstances would have arisen in any event, do not enable a finding of loss of future earning capacity in this case: Amoud v Al Batat [2009] NSWCA 333, at [15]. On the proper understanding of the operation of s 13 of the CL Act, that submission is inapt in this case: Amoud v Al Batat [2009] NSWCA 333, at [22].

244. In this case, it is not possible to identify an assumption to the effect that the plaintiff is suffering a weekly loss capable of projection on the 5 per cent discount tables. However, that is not to say that the plaintiff will not suffer a diminution in her earning capacity. That much is clear from the medical evidence as to the plaintiff’s future and disadvantageous work restrictions concerning prolonged standing and walking. In such cases, as difficult as the task might be, an assessment must nevertheless be undertaken, even if only in the form of a lump sum economic buffer: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133; Penrith City Council v Parks [2004] NSWCA 201; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13.

245. In my view, having due regard to the plaintiff’s disabilities and related matters as outlined at [28] to [38] above, and the medical expenses cited at [26] above, the plaintiff’s impairment of earning capacity as summarised and cross-referenced at [119] above, call for an assessment of a significant buffer amount to compensate the plaintiff for the impairment of her earning capacity.

246. In my view, in that regard, the amount that is both fair to the plaintiff and not unfair to the defendants is in the amount of $75,000. In assessing that amount I have included an element of discount to reflect the fact that the impairment of the plaintiff’s earning capacity is unlikely to have an immediate monetary impact upon her because the anticipated restructure at her work would be likely to not occur immediately. In making the required assessment I have also taken into account the factor that the plaintiff’s disadvantage as a competitor on the open labour market is a relevant consideration. I also take into account the fact that such disadvantage now arises so as to restrict the ability of the plaintiff to exercise her right of mobility or change in her employment, should see the need to do so, as happens frequently in employment.

247. I therefore assess the plaintiff’s damages for diminution in her future earning capacity in the amount of $75,000.

Superannuation losses

248. Applying a commercial approach to the assessment of future superannuation losses at 11 per cent of the economic loss buffer of $75,000, I therefore assess the plaintiff’s damages for future loss of employer funded superannuation contributions in the amount of $8,250.

Past domestic assistance

249. On behalf of the plaintiff it was initially submitted that the plaintiff’s damages for gratuitous past domestic assistance should be assessed in the amount of $40,687. That amount was calculated in respect of two periods. The first period was between 2 August 2015 and 2 December 2015, for 29 hours per week at $27 per hour, namely $14,094. The second period was from 3 December 2015 to date, for 7 hours per week at $29 per hour, namely $26,593. The total of those amounts is $40,687. In contrast, the defendants submitted that there should be no assessment for such damages.

250. In final submissions, the plaintiff conceded that the statutory threshold for awarding such damages has not been met: s 15 of the CL Act. I therefore make no award for damages for past domestic assistance.

Future domestic assistance

251. On behalf of the plaintiff it was initially submitted that damages in respect of her future need for domestic assistance on a paid basis should be assessed in the amount of $48,858. That amount was calculated on the basis of $30.15 per hour for 7 hours per week for the next 5 years. At the conclusion of the hearing the plaintiff revised this submission to $75,000. In contrast, the defendants submitted that there should be no assessment for such damages.

252. In my view, it is not reasonably possible to assess an amount for precise projection in the amount submitted on behalf of the plaintiff. Instead, having regard to the extent of the plaintiff’s’ ongoing disabilities, which are likely to increase in the sense of a further reduction in her mobility and agility, especially after the contemplated surgery, accuracy is not reasonably achievable. Instead, I consider a buffer which incorporates discounts for deferral of intensity of the contemplated assistance, is a more reasonable approach: Avopiling Pty Ltd v Bosevski [2018] NSWCA 146, at [128]–[138].

253. I therefore assess the plaintiff’s damages for future domestic assistance in the amount of $25,000.

Future out-of-pocket expenses

254. On behalf of the plaintiff it was initially submitted that the plaintiff’s claim for future out-of-pocket expenses for orthoses, ultrasound guided injections, orthopaedic reviews, general practitioner consultations, possible surgical fusion of the left mid foot, and medication, should be assessed in the amount of $28,441. In contrast, the defendants submitted that such damages should be assessed in the amount of $5000.

255. I consider the submission made on behalf of the defendants in respect of this head of damage to be unrealistically low in view of the plaintiff’s need for professional attention along the lines referred to in the preceding paragraph.

256. Whilst I accept that the plaintiff will need the assessments and treatments identified, the variable consideration which affects quantification of those matters is the likely intensity and timing involved in such treatment. Those are imponderable matters of uncertainty that are best reflected in a discounted approach to the sum identified by the plaintiff. I consider the appropriate discounted sum to be $15,000.

257. I therefore assess the plaintiff’s damages for future out-of-pocket expenses in the amount of $15,000.

Past out-of-pocket expenses

258. The plaintiff’s out of pocket expenses have been identified in Exhibit “E”. I therefore assess the plaintiff’s damages for past out-of-pocket expenses in the agreed amount of $13,714.65.

Summary of damages assessment

259. My assessment of the plaintiff’s damages is summarised as follows:

(a) Non economic loss	$190,500
(b) Past economic loss	$5,542
(d) Future loss of earning capacity	$75,000
(f) Future loss of superannuation	$8,250
(g) Past domestic assistance	$Nil
(h) Future domestic assistance	$25,000
(i) Future treatment expenses	$15,000
(j) Past out-of-pocket expenses	$13,714.65
Total	$333,006.65

Disposition

260. The plaintiff is entitled to a verdict and judgment in her favour as against both sets of defendants in the amount of $333,006.65. On the cross-claims as between the defendants, for the reasons outlined at [188] to [225] above, the apportionment of the judgment in favour of the plaintiff as between the defendants is that the sixth and seventh defendants should equally bear one hundred per cent of that judgment and the first, second, third, fourth and fifth defendants should bear zero per cent of that judgment, so that the first five defendants should have a complete indemnity from the sixth and seventh defendants. The second cross-claim should be dismissed.

Costs

261. The plaintiff has succeeded in her claims against both sets of defendants. Accordingly, the ordinary consequence of those findings should be that the plaintiff’s costs of the proceedings should be paid in equal proportions by the two sets of respective defendants. However, in this case, that position must be subject to the result of the respective cross-claims.

262. The first, second, third, fourth and fifth defendants have succeeded in their cross-claim against the sixth and seventh defendants. As such the first, second, third, fourth and fifth defendants should have their costs of the first cross-claim paid by the sixth and seventh defendants.

263. On a dismissal of the second cross-claim, the sixth and seventh defendants should pay the costs of that unsuccessful cross-claim.

264. As a consequence of these findings, the sixth and seventh defendants should indemnify the first, second, third, fourth and fifth defendants for their liability for the plaintiff’s costs.

265. The above costs should be paid on the ordinary basis unless a party is able to show an entitlement to some other costs order.

266. I will hear the parties on due notice being given if they wish to agitate for a different costs outcome.

Orders

267. I make the following orders:

1. Verdict and judgment for the plaintiff against each of the defendants, in the sum of $333,006.65;

2. On the first cross-claim, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946, the sixth and seventh defendants are to bear one hundred per cent of the plaintiff’s damages and the first, second, third, fourth and fifth defendants are to bear zero per cent of the plaintiff’s damages;

3. The second cross-claim is dismissed;

4. The defendants are to pay the plaintiff’s costs of her action;

5. The sixth and seventh defendants are to indemnify the first, second, third, fourth and fifth defendants for costs liability those defendants have to the plaintiff;

6. The sixth and seventh defendants are to pay the costs of the first cross-claim brought by the first, second, third, fourth and fifth defendants;

7. The sixth and seventh defendants are to pay the costs of the first, second, third, fourth and fifth defendants on the second cross-claim;

8. All costs payable are to be assessed on the ordinary basis unless a party can show an entitlement to some other costs order;

9. The exhibits are to be returned;

10. Liberty to apply on 7 days notice if further or other orders are required, including as to costs.

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Amendments

12 February 2019 - Coversheet amendment - representation of the plaintiff

Decision last updated: 12 February 2019