Wyatt v M R & R C Smith Pty Ltd - [2010] WADC 178

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WYATT -v- M R & R C SMITH PTY LTD [2010] WADC 178

CORAM: WAGER DCJ

HEARD: 2- 12 FEBRUARY, 21 JUNE-2 JULY &
17-20 AUGUST 2010

DELIVERED : 30 NOVEMBER 2010

FILE NO/S: CIV 562 of 2006

BETWEEN: ROBERT WYATT
Plaintiff
AND
M R & R C SMITH PTY LTD (ACN 082 025 670)
First Defendant
ROKLEN INVESTMENTS PTY LTD (ACN 082 025 670)
Second Defendant
ULTRA TUNE AUSTRALIA
Third Party

Catchwords:

Torts - Personal injury - Plaintiff tripped on stair at workplace - Duty to provide a safe system of work - Negligence - Occupiers liability - Occupational health and safety - Whether stair was safe - Causation - Contributory negligence - Whether third party had an obligation to insure under lease - Construction of lease - Whether franchisee had an obligation to insure - Damages - Past and future loss of earning capacity

Legislation:

Building Code of Australia 1988
Occupational, Safety & Health Act 1984
Occupiers Liability Act 1985
The Australian Standard 1657-1985

Result:

Judgment for the plaintiff against the first defendant for $1,142,353.50
Plaintiff's claim against second defendant dismissed
Second defendants claim against third party dismissed
Third party claim against first defendant dismissed
First defendant's claim against second defendant dismissed
Second defendant's claim against first defendant dismissed

Representation:

Counsel:

Plaintiff:     Mr B Nugawela
First Defendant            :     Ms B Mangan
Second Defendant        :     Mr D Clyne
Third Party                  :     Mr T R Stephenson

Solicitors:

Plaintiff:     P J Griffin
First Defendant            :     Lavan Legal
Second Defendant        :     SRB Legal
Third Party                  :     Albert Chong Lawyer

Case(s) referred to in judgment(s):

Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424
Beer v Duracraft Pty Ltd [2004] WASCA 192
Burgiel v Barminco Investments Pty Ltd [2009] WADC 145
Chappel v Hart (1998) 195 CLR 232
Clambake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52
Francis v Lewis [2003] NSWCA 152
Geroheev Pty Ltd v Wheare [2004] WASCA 206
Hacai Pty Ltd v Rigil Kent Pty Ltd (Unreported, WASCA, Library No 960450, 16 August 1996)
Husher v Husher (1999) 197 CLR 138
Jones v Bartlett (2000) 205 CLR 166
Kschammer v R W Piper & Sons Pty Ltd [2003] WASCA 298
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Remath Investments No 6 Pty Ltd v Chanel (Australia) Pty Ltd (Unreported, NSWCA; 24 December 1992)
Sungravure Pty Ltd v Meani (1964) 110 CLR 24
Tobiassen v Reiley [2009] WASCA 26
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52
Watts v Rake (1960) 108 CLR 158
Westina Corp Pty Ld v BGC Contracting Pty Ltd [2009] WASCA 213
Wilkinson v Law Courts Ltd [2001] NSWCA 196
Wyong Shire Council v Shirt (1980) 146 CLR 40

WAGER DCJ: The plaintiff Mr Wyatt was employed as a manager/mechanic by the first defendant M R and R C Smith Pty Ltd that owned and managed the Osborne Park Ultra Tune franchise.
The second defendant Roklen Investments Pty Ltd and Ashley Gerrard Mijat and Nina Sherie Blakeney are the owners of the Ultra Tune Osborne Park workshop premises.
Mr Wyatt claims that on 17 September 2003 he slipped in the Ultra Tune Osborne Park workshop when his heel caught on the edge of a stair and he stumbled forward pushing himself backwards and hitting the ground thereby injuring both knees.
Mr Wyatt claims that the stair was too short and that it required the addition of a hand rail in order to be safe. He claims that he had brought the potential danger of the stair and the need for repair to the attention of both the first defendant and the second defendant prior to his fall. The second defendant denies knowing anything about Mr Wyatt's concern until after the date of his fall.
The first defendant and the second defendant did not consider that there was anything wrong with the stair. The stair had been installed over 10 years prior to the fall and although it was used very regularly being part of the Ultra Tune Osborne Park workshop no other employee had ever had a problem with it or had fallen from it.
The first defendant and the second defendant do not accept that Mr Wyatt fell as he described and challenge his evidence in its entirety for reasons including:
(a)No‑one witnessed the fall.
(b)Mr Wyatt sought medical treatment after the date of the fall but it did not relate to his knees.
(c)Mr Wyatt had a further fall in the workplace when he fell off a chair in January 2004 and the histories noted by medical experts recorded different dates, time periods, sequences and events in respect of both falls bringing Mr Wyatt's credibility into question.
(d)Mr Wyatt has had a chequered past in relation to employment, injuries at work, criminal convictions and multiple marriages. Mr Wyatt failed to fully disclose his history to medical experts.
(e)The pain state and level of disability suffered by Mr Wyatt is inconsistent with the findings of some of the medical experts.
The second defendant joined Ultra Tune Australia Pty Ltd, the national Ultra Tune company from whom the first defendant obtained its franchise, as a third party because Ultra Tune Australia had leased the Osborne Park workshop premises from the second defendant and had obligations to the second defendant under the lease including a clause relating to an obligation to obtain public liability insurance.
The first defendant had obligations to Ultra Tune Australia as a result of its franchise agreement. The interpretation of the lease as between the third party and the second defendant and the franchise documentation as between the first defendant and Ultra Tune Australia are issues that need to be determined.

The circumstances of the fall

Mr Wyatt's evidence is that he went to the workshop at about 7.30 am to open up and he slipped from the landing on the top of the stair when his heel caught on the edge of the stair. As a consequence he stumbled forward and in the process of trying to save himself from hitting the hoist or other things in the workshop he pushed himself backwards. His legs folded under him because he was unsteady at the time. His backside hit the ground with his feet behind him and his head went back and hit the concrete floor. Mr Wyatt describes that there was a popping sensation in his knees. He says (ts 26):
I sort of laid on the floor for a couple of seconds, a couple of minutes. I sort of gathered myself. I felt sore. I got up and went back into the office and sat down. Then I thought I had better get some ice because they (knees) were painful … and (I) waited until other staff members attended.
Mr Wyatt says that the mechanics turned up within 5 or 10 minutes and that the office administrator Sue Ellis (nee Preece) turned up at 9.30 am. Mr Wyatt made a complaint to Mrs Ellis about the fall and later that day made a complaint to the Smiths. Mr Wyatt kept working on the day of the fall and continued with his duties as usual apart from caring for his sore knees with ice. When recalled to give evidence Mr Wyatt accepts that he must have attended the Ballajura Physiotherapy Clinic after work on the day of the fall as a result of the soreness to his knees. He cannot comment on why pain to his right knee was not recorded by the physiotherapist.
Mrs Smith's evidence is that when she arrived at work at about 8 am she was told by one of the mechanics that Mr Wyatt had fallen on the stair and Mr Wyatt complained to her of painful knees but kept working that day. Mrs Smith noted the date of the fall in her work or personal diary and accepts that the fall occurred on 17 September 2003 consistent with the notation however the diaries have now been destroyed. Mr Smith was not at work that day and believes that his wife later told him about Mr Wyatt's fall.
Mrs Ellis' evidence is that she was not at work on the day of the fall and that she believed the day was a Friday because she had swapped work with Mrs Smith. In fact, 17 September 2003 fell on a Wednesday. Mrs Ellis acknowledges that her memory of events is not clear seven years after the event. Despite giving evidence that she was not present on the day of the fall Mrs Ellis acknowledges that she witnessed the workers compensation form completed by Mr Smith and Mr Wyatt dated 10 December 2003 (exhibit 3) that notes in relation to the first report of injury 'On 17 September 2003 at 9.30 to Sue Preece … Sue was not here until 9.30 am'. Ms Ellis says that she was in the habit of signing documents without reading the content. In evidence she says that she does not agree with the content of the document she witnessed.
The workers compensation form also notes that the reason why Mr Wyatt did not seek immediate medical attention was because he 'tried ice packs and physio'.
None of the mechanics employed by Ultra Tune Osborne Park in 2003 were called as witnesses. I do not consider that the evidence of the mechanics would have taken the matter much further because it is not suggested that there were any eyewitnesses to the fall because it occurred when Mr Wyatt was alone and in the process of unlocking the workshop and turning the lights on.
I do not accept Mrs Ellis evidence in relation to her non‑attendance at the workshop on the day of the fall. She was incorrectly referring to a Friday. She had not been asked to remember specific details for a period of seven years.
Mrs Smith's evidence is consistent with Mr Wyatt's version of events and consistent with the workers compensation form that was completed three months later.
I accept that the fall occurred on the date and in the manner described by Mr Wyatt in his evidence.

The plaintiff's credibility

Although I accept that Mr Wyatt fell on the stair on 17 September 2003 I need to determine whether I accept that any injuries to his knee were sustained as a result of the fall, whether the severity of his injury is consistent with his description to doctors and medico‑legal experts and whether he is disabled to the degree that he asserts.
In relation to the history given to doctors and medico‑legal experts I accept that the following information was omitted or stated inaccurately:
1.Dr Poli's note dated 10 November 2003 that Mr Wyatt had slipped and fallen on the stairs three weeks previously. This would mean that he had fallen in mid October as opposed to 17 September 2003.
2.Dr Poli did not know that Mr Wyatt continued to play cricket until April 2004.
3.Mr Robinson in his initial report stated that the history of the injury was that the plaintiff sustained a twisting injury to the right knee and a direct blow to the anterior aspect of the left knee when a chair collapsed at work on 17 September 2003. Mr Wyatt's evidence is that the injury was sustained as a result of the fall on the stair on 17 September 2003 and that a fall from a chair in January 2004 did not cause the injury.
4.Mr Robinson was not provided with any history in relation to the period from the date of the fall on 17 September 2003 until assessment on 10 May 2004.
5.Mr Robinson was unaware that Mr Wyatt had had physiotherapy between June 1998 and May 2004.
6.Dr Kennedy was unaware that Mr Wyatt had fallen from a chair on 27 January 2004 and that Mr Wyatt had continued to play cricket until April 2004.
7.Dr Proud recorded a history of prior marriages inconsistent with Mr Wyatt's history, listing two or three marriages as opposed to four.
Given the incorrect dates and times provided by Mr Wyatt I accept that he is a poor historian in relation to dates and sequences.
Mr Wyatt omitted to disclose full details of his service in the army and his medical condition during the course of service. Mr Wyatt says that he was first in the army for six months in 1983. In fact he was first in the army in 1980 for a period of approximately four to five weeks, a period that was not disclosed in interrogatories sworn by Mr Wyatt on 25 November 2006.
Mr Wyatt re‑enlisted in the army in August 1987 and was discharged from service on October 1989. Mr Wyatt was discharged from his first army service because he experienced headaches that dissipated quickly once he was discharged. Mr Wyatt attributes the headaches to immaturity, other health problems and the effect of fumes. Following re‑enlistment in August 1987, Mr Wyatt was admitted to sick bay in November and required medical assistance on an almost monthly basis thereafter. Symptoms included dizzy spells and nausea. On 5 December 1988 left foot pain was noted. Mr Wyatt was still suffering foot pain nearly one year later on 17 October 1989 when he was discharged from the army. The diagnosis relevant to the foot pain was of Morton's neuroma, a condition that made wearing army boots very painful. Mr Wyatt had two operations to his foot but continued to experience pain because he was required to wear army boots under orders contrary to the medical notes that recorded that he was allowed to wear soft shoes until June 1989. Mr Wyatt agrees that he wore soft sand shoes from June 1989 until his date of discharge in October 1989, being a period of approximately four months and that he needed two crutches to walk. His reliance on crutches stopped him from carrying out any work for the period of five or six months prior to discharge. Following discharge Mr Wyatt recovered rapidly and obtained employment as a truck mechanic (a position requiring him to wear work boots), within one or two months of the discharge date. Notably Mr Robinson, Mr Wyatt's orthopaedic surgeon, considers the scenario of suffering Morton's neuroma and requiring crutches for seven months and then returning to work within a month as a truck driver in work boots is 'not normal'.
Mr Wyatt has been cross‑examined extensively about a criminal charge of altering a Golden Casket Lotto ticket when he was stationed in Townsville and thereby pretending that he had six numbers consistent with a win in the sum of $642,857.15. Mr Wyatt did not remember the charge nor did he accept that there was a warrant for his arrest in relation to his non‑appearance in respect of the charge because he had subsequently obtained police clearances that did not disclose the existence of a warrant. On a second day of cross‑examination in relation to this issue Queensland police documents were provided to the court. When the Queensland police documents were shown to Mr Wyatt he acknowledged that his signature appeared on the documents and agreed that he remembered some of the facts so it must have been him.
Mr Wyatt also admits that he was convicted of assaulting his third wife in 2002, convicted of deprivation of liberty in respect of his first wife and admitted having breached violence restraining orders. Mr Wyatt attempted to justify his criminal conduct in the context of it occurring at the time of breakdown of marriage.
I find that Mr Wyatt has failed to remember incidents in his life that are serious and that are factually unusual. In contrast Mr Wyatt remembers the conversations he says he had with Mr and Mrs Smith and with Mr Mijat in relation to the condition of the stair verbatim and provides lengthy and descriptive, although not always accurate, histories to doctors and medico‑legal experts. I accept that in his evidence Mr Wyatt tends to overinflate and embellish matters that place him in a favourable light but he omits or fails to remember some evidence adverse to his character.
Counsel for the first defendant cross‑examined Mr Wyatt in relation to his ability to drive a car as a result of injuring his knees. Mr Wyatt's evidence was that he stopped driving after surgery in November 2006 because he was fined for speeding after not having proper control of the pedals as a result of the injury to his knees. He had, however, driven on rare occasions when his wife was unwell. Witnesses were called in relation to surveillance footage of Mr Wyatt obtained in 2006 and 2009, however the footage was not shown in evidence. I cannot assess Mr Wyatt's state of disability as shown in the surveillance footage because I have not seen it. There is no evidence that he drove on occasions other than when his wife was unwell requiring him to drive. The evidence in respect of surveillance without footage carries very little weight. The surveillance evidence does not contradict the evidence given by Mr Wyatt.

The condition of the plaintiff's knees prior to 17 September 2003

Consistent with the history given to Mr Robinson, orthopaedic surgeon, in 1998 Mr Wyatt says that he slipped on the floor at Caltex in Joondalup where he was working on two occasions, being 5 February 1998 and 9 February 1998, injuring his left knee. On 16 February 1998 Mr Robinson performed a left knee arthroscopy and found a torn outer lateral meniscus requiring a lateral meniscectomy. The medial was intact. Mr Robinson shaved osteoarthritis that he located and addressed the joint damage to the kneecap. Mr Robinson considered that the osteoarthritis discovered was more significant than he would have expected in a man of Mr Wyatt's age (being 36 years old at the time). In 1998 Mr Robinson noted the level of arthritis as '3 osteoarthritis'. Mr Robinson did not believe the osteoarthritis was connected with Mr Wyatt's falls.
Mr Wyatt says that he had a further fall in May 1998. Mr Robinson saw him on 3 June 1998 and noted as a result of Mr Wyatt's self-report that his condition had not improved as much as Mr Robinson thought it should have over a four-month period. Mr Robinson attributed the lack of progress to muscle wasting because Mr Wyatt had limped and favoured the right side in February 1998 thereby not allowing the protected muscles to improve. Mr Wyatt was referred to a physiotherapist for exercises to rectify the muscle wasting and Mr Robinson did not see him again until 10 May 2004.
Mr Wyatt says that between mid 1998 and September 2003 he did not experience any problems with his knees. He was able to play cricket, go jogging and lead a very active life. He chose to strap both knees before playing cricket more as a precautionary measure than because of any pain.
Ballajura Physiotherapy notes showed that on 23 September 2002 Mr Wyatt had complained of 'several weeks history of medial knee pain, worsening over the last day, worse with cricket and end of the day at work'. The presenting complaint was recorded as knee pain (ts 866). Mr Rabin, physiotherapist, says that the presenting complaint is recorded as a result of the patient's description of the injury and is not a record of a clinical diagnosis. Ms Croniak, the physiotherapist who dealt with Mr Wyatt on 23 September 2002 noted that Mr Wyatt was tender on palpation over adductor magnus and hamstring and adductor tubercle. Mr Rabin describes the adductor magnus as being a major part of the hamstrings and the adductor tubercle as being where the adductor magnus inserts. As a result of Ms Croniak's assessment, exercises directed at adductor strengthening were recommended. Mr Rabin clarifies that none of the treatments recorded on 23 September 2002 related to the knee. A follow‑up reference to the right leg appears in the physiotherapy file, however there was no other reference to the lower limbs in the physiotherapy notes until 17 September 2003.
Despite Mr Robinson's finding of osteoarthritis in the left knee in 1998, there is no evidence of symptomatic left or right knees from mid 1998 until September 2003.

Treatment received by the plaintiff on and after 17 September 2003

Mr Wyatt did not seek medical treatment on the day of the fall and dealt with his knees by applying ice packs and using over‑the‑counter anti‑inflammatory medication. Ballajura Physiotherapy notes were disclosed after Mr Wyatt completed his evidence. On 17 September 2003 Mr Rabin had noted a new episode for Mr Wyatt requiring physiotherapy, being:
Gradually increasing left anterior knee pain, intermittent crepitus, swelling, no instability, pain with squatting, kneeling, prolonged knee flexion would aggravate. No locking … On the objective examination Mr Wyatt had a positive left patella femoral joint dysfunction. The treatment then involved soft tissue massage to the lateral structures, mobilisation with movement to the patella femoral joint, taping of the patella femoral joint and prescribed exercise. (ts 869)

There is no complaint recorded in relation to the right knee.
Mr Rabin says that from the presentation and symptoms it was possible that there was some meniscal injury to the left knee and that it would be quite difficult to diagnose the medial meniscal injury exclusively without conducting sophisticated imaging. In 2003 the physiotherapy clinic opened at about 7.30 am to 8 am with the last patient attending up to 7 pm. The physiotherapy notes do not disclose whether 'gradually increasing left anterior knee pain' relates to pain that had increased on the day of 17 September 2003 or related to a longer period of time. The notes do not refer to a sudden onset of the trauma nor is there any reference to how the pain came to be caused. Mr Rabin could not say what had caused the patella maltracking in Mr Wyatt's case.
When recalled to give evidence in relation to his attendance at physiotherapy Mr Wyatt could not remember attending the appointment on 17 September 2003, however he accepted that he had attended the clinic on that date and says that he must have attended the clinic after work because he would not have had time to attend in the morning and still be at the workshop in time to open it up.
Mr Wyatt did not attend a general practitioner in relation to knee pain until 10 November 2003 when he consulted Dr Poli. The records show that he had consulted Dr Poli after 17 September 2003 on 22 September 2003 in relation to a chest infection being a long consultation of five to 15 minutes but there is no reference made to any complaint being made in relation to the knees. Dr Poli says that even if knee pain was mentioned on that date, he may not necessarily have written the complaint down on the notes. Mr Wyatt did not recall seeing Dr Poli on 22 September 2003, five days before his wedding to Shirella Wyatt, but asserts that he was suffering knee pain at the time.
On 10 November 2003 Dr Poli prepared the first medical certificate in respect of the fall at the workshop. The notes relevant to the certificate state:
Knee examination right/left. Non-tender. Both knees painful on stressing the medial ligaments. The left knee clicks when doing (meniscal test).
Dr Poli noted a query in relation to bilateral knee medial cap muscle sprain, bilateral medial ligament sprain and bilateral medial cartilage injury or both. The notes record that the injury was sustained three weeks earlier, however the note has been amended to seven weeks earlier. 'Query misunderstanding' is written on the notes, however Dr Poli does not recall the circumstances that led to the amendment of the date and cannot recall a misunderstanding.
The history noted by Dr Poli was that Mr Wyatt was walking down the steps when he slipped and landed heavily on bent adducted knees (that is, knees apart). Dr Poli also noted that 'Mr Wyatt develops suddenly medial knee pain just superior to the joint line. Attended physio'. Dr Poli states that 'obviously he did that (attending physio) off his own bat' (ts 696). The physiotherapy notes were not available at the time when Dr Poli gave evidence yet he refers to a history of physiotherapy being sought. I accept that Dr Poli's notes accurately reflect the history given to him by Mr Wyatt in 2003 including that Mr Wyatt told him that he had been to the physiotherapist after the fall.
The next medical practitioner seen by Mr Wyatt in relation to knee pain was Dr Dorovich on 18 November 2003. Mr Wyatt's evidence is that he attended Dr Dorovich's surgery rather than Dr Poli's surgery because Dr Dorovich's surgery was near to Ultra Tune Osborne Park, whereas Dr Poli's surgery was nearer to his home address. Dr Dorovich's notes indicate that Mr Wyatt reported the accident and the pain in his knees and also raised the question of gout. On 24 November 2003 Dr Dorovich noted that Mr Wyatt had elevated levels of uric acid consistent with gout. Although Mr Wyatt said he had fallen down the stairs six to eight weeks before Dr Dorovich did not exclude gout as a cause of pain. Haematology tests gave results that were within range and accordingly gout was ultimately excluded. Dr Dorovich placed Mr Wyatt on preventative gout medication in the interim that improved Mr Wyatt's ankle pain but did not improve his knee pain. Dr Dorovich's notes of 24 November 2003 recorded 'fell down stairs, pain in knees worsened after this'. Dr Dorovich could not explain why the notes were expressed in this way and did not recall a reference to a history of knee pain but Dr Dorovich considered the continuing pain in the knees was not consistent with gout, indicating another cause.
Mrs Shirella Wyatt says that Mr Wyatt had pain in his knees at the time of their wedding on 27 September 2003 and that he did not dance at the wedding. It was clarified in cross‑examination that she is not a keen dancer. The couple's activities were limited on their honeymoon in the week following the wedding because of Mr Wyatt's knee pain. Mrs Wyatt, as Mr Wyatt's wife, is not an independent witness but I accept her unchallenged evidence in relation to Mr Wyatt's conduct at the time of the wedding.
Mr Paice was a friend who lived with Mr Wyatt just prior to the wedding from March to September 2003. Mr Wyatt's gait in the period from March to September 2003 appeared normal to Mr Paice who had known Mr Wyatt for two years and had played cricket with Mr Wyatt at the same club where he seemed fine. Between 17 September 2003 and the wedding on 27 September 2003 Mr Wyatt complained of soreness to his knees and did not assist Mr Paice when Mr Paice moved out of the home on 24 September 2003, stating that he did not wish to aggravate anything in the context of his knee pain. Mr Paice's contact with Mr Wyatt has been limited since September 2003. Mr Paice's evidence is not challenged in cross‑examination.
In light of the evidence I accept that Mr Wyatt attended the Ballajura Physiotherapy Clinic after work on 17 September 2003 because he would not have had time to attend an appointment in the morning before opening up the workshop. Although there has been no notation of pain to the right knee and details of the cause of knee pain are not recorded in the physiotherapist's notes and there is variation in the evidence as to whether the pain improved or escalated during the course of the day, I accept that the presentation and the diagnosis was consistent with the fall as described by Mr Wyatt. Mr Wyatt attempted to address the pain with ice packs and anti‑inflammatory medication because he believed he was dealing with bruising. His movements were restricted and limited as a result of pain and he attempted to take things easier at work and at home. Mr Wyatt also describes his right knee getting worse over time consistent with his failure to report the right knee on 17 September 2003. Home treatment following physiotherapy is consistent with Mr Wyatt's reports on the workers compensation certificate (exhibit 3) and to Dr Poli.
I do not accept that a failure to raise knee pain with Dr Poli in September 2003 (or a failure by Dr Poli to note the issue of knee pain) is inconsistent with knee injury being sustained on 17 September 2003 given that Mr Wyatt had chosen to deal with the matter through physiotherapy, ice packs, non‑prescription medication and reduction of activity.
Dr Dorovich's prescription of gout medication did not improve the pain to the knee. Dr Dorovich's note on 24 November 2003 'fell down stairs, pain in knees worsened after this' cannot be explained after seven years, but it is equally as consistent with a worsening in pain from 17 September 2003 until the appointment date of 24 November 2003 as with a pre‑existing injury prior to 17 September 2003. I accept that Mr Wyatt damaged both his left knee and his right knee when he fell at Ultra Tune Osborne Park on 17 September 2003.

Injury on 28 January 2004

On 28 January 2004 Mr Wyatt fell from a chair in the lunchroom at Ultra Tune Osborne Park aggravating the pain in his left knee that he had experienced since 17 September 2003. Mr Smith was present at the time of the fall and did not think it was a serious matter. Mr Wyatt saw Dr Poli soon after the fall when Dr Poli issued a first medical certificate consistent with the 24 January 2004 incident being reported as a separate incident rather than an additional injury being diagnosed. On 27 May 2004 on examination after surgery by Mr Robinson Dr Poli noted:
Prior to 17 September 2003 no previous right knee injuries. Had a previous left knee injury 1998 but made a full recovery. Injury of 28 January 2004 is a flare-up of 17 September 2003 injuries. Knee looks reasonable post-op. To have braces on knees tomorrow. Fit for light duties on Monday. (ts 700)
The fall on 28 January 2004 caused Mr Wyatt's left knee to flare up aggravating the injury he sustained on 17 September 2003. It had no effect on the right knee.

Cricket

Following surgery in 1998, Mr Wyatt returned to playing cricket and was captain of his team. He strapped both knees as a precautionary measure and did not experience pain in the knee from 1998 through until 2003. Although he needed physiotherapy in relation to a cricket related injury between 1998 and 2003, the treatment did not relate directly to his knees.
Mr Wyatt continued to play cricket in the season that commenced after September 2003 and then joined the Bunbury cricket team for the 2004/2005 season. Mr Wyatt says that he was able to play because he did not play actively. He did not run and was ineffective as a player. Gradually he was forced to drop out of cricket because of knee pain.
Mr Gairdner, who was the captain and a team player for the Bunbury cricket team in 2004/2005 recalls Mr Wyatt joining the team. The team could play with 12 people so that Mr Wyatt could bat but was not required to field. When he did field it would not be for a very long time and, Mr Gairdner recalls that Mr Wyatt could not get much more speed than anyone trying to walk when he had to go and chase down a ball. Mr Wyatt would take time to strap his knees before a game and only played for three quarters of the season telling Mr Gairdner that he stopped playing because his knees made him feel uncomfortable.
Although Mrs Smith says that she had never seen Mr Wyatt play cricket, she recalls him saying that he was a bowler, a position that concerned her, given his knee injury. Mr Wyatt was never cross‑examined about the position that he played in and the only suggestion that he was a bowler came from Mrs Smith's evidence. I do not conclude that Mr Wyatt was a bowler when playing cricket after September 2003.
Consistent with Mr Gairdner's evidence, I accept that although Mr Wyatt continued to play cricket his game was substantially affected by the injury and the pain he experienced from his knees.

The Ultra Tune Osborne Park workshop – Did the workshop stair comply with the regulations relevant to its construction?

The workshop and office of Ultra Tune Osborne Park is part of a larger complex owned by the second defendant who rebuilt the workshop in approximately August/September 1991 although a building licence was not issued until 13 February 1992.
As constructed the workshop stair consisted of a landing that was over two metres wide (level with Mr Smith's office and the lunchroom) and approximately 340 mm above the workshop floor.
The single stair is an intermediate step constructed of bricks laid side by side with a riser of 170 mm and a tread width of 241 mm so it was effectively the length of a brick plus the mortar or concrete used in its installation.
The actual tread was approximately 9 mm shorter than the tread of 250 mm shown on an undated plan for the building that named the architect and engineers. A hob that is the same height as the landing bordered the stair on one side and the stair was enclosed by a wall on the other side. The stair was 2,200 mm wide from the wall to the hob. There was no handrail nor any non-skid slip surface installed.
The Building Code of Australia (BCA) relevant to the stairs' construction is the 1988 Code. The Australian Standard (AS) 1657‑1985 is the relevant standard. BCA table D2‑13 requires that a stair riser be less than 180 mm. The two risers on either side of the stair are 170 mm and they therefore comply with the BCA.
Pursuant to the BCA the tread is required to be greater than 240 mm if the stair is a private stair but greater than 280 mm if the stair is a public stair. Accordingly with a tread of 241 mm the stair complied with the BCA if it was a private stair but not if it was a public stair.
The BCA defines a class 6 building as a shop or other building for the sale of goods by retail or the supply of services direct to the public including a service station.
Service station is defined as a garage which is not a private garage and is for the servicing of vehicles other than only washing, cleaning or polishing. A private garage is defined in the context of a single storey class 6 building that is capable of accommodating not more than three vehicles. I accept the evidence of Mr Brand the architectural expert called by the plaintiff, that, given the configuration of hoists, the workshop area provided room to service four vehicles. The workshop comes within the definition of a public garage or a service station.
However, it does not follow that because the workshop is defined as a public garage it will inevitably contain public stairs. Although there is no definition of public stairs, BCA table D2‑13 defines private stairs as:
(a)Stairs in a class 1 ‑ 10 building;
(b)…; and
(c)in any building, stairs which are not part of a required exit and to which the public do not normally have access.
The Ultra Tune Osborne Park premises are comprised of a workshop that is next door to a reception/front office area.
Customers bringing their cars in for a service would normally go to the front reception because the main glass door with the Ultra Tune logo on it leads directly into the reception area. Mrs Smith and Mrs Ellis who carried out reception duties in 2003 would instruct customers to take their cars next door to the area adjacent to the workshop for repairs but the customers would conduct their business in the main reception area. This meant the customers would not enter the workshop nor use the stair.
Further, not long after Mr Wyatt commenced employment he requested that the first defendant purchase signs indicating dangers or procedures. One of the signs requested and erected prior to the fall was a 'no admittance/restriction' type sign that was placed on the outside of the workshop near the roller doors being on the garage side not on the main reception side. It was intended that by placing the sign at the roller doors to the workshop customers would go to the main reception area and would not walk through the workshop. Customers were forbidden entry given that the workshop contained complex machinery that could have been potentially dangerous and customers may have interfered with the mechanic's ability to work in the workshop.
The workshop stair led from the back of the workshop floor up to Mr Smith's office and the staff room. If a customer was in the workshop contrary to the no admittance sign then the customer would have to walk up the stair and then walk through Mr Smith's office in order to access the main reception area. The alternative route of walking 10 metres from the workshop roller doors to the main reception office was the route encouraged by the first defendant. Despite the clear directions given to customers not to enter the workshop, the first defendant accepts that on occasion customers would end up in the workshop and would walk up the stair however this was not the normal route. I accept that it was not the normal route and that customers were discouraged from entering the workshop. The public did not normally have access via the stair. I find that the stair is a private stair and, as such, its tread length complied with the BCA.
Counsel for the plaintiff also submits that the stair was part of the required exit for the building. Mr Brand in his report (exhibit 26.5) states in the context of exit requirements under the BCA:
In my opinion the (workshop) has two exits at ground level … through the roller shutters and one exit by way of the steps and landing through the showroom. The steps and landing are not a required fire exit in the BCA and do not have to be fire isolated.
Evidence was not specifically led in relation to how each and every member of staff exited the building however it is clear that initial entry was gained through the main reception area and I accept that Mr Wyatt entered in this way when he was in the process of opening the workshop and fell on the stair. The stair is not part of the required exit for the building.
Although the tread and riser of the stair complied with the BCA, the product of the riser and tread does not comply with the AS. A product calculation is performed to ensure that the proportion of riser to tread is appropriate, that is, that a high step does not have a tread that is too narrow nor a low step have a tread that is too wide.
The AS states that the product of the stair is to be not less than 45,000 nor greater than 48,000. The product of the stair is only 40,970. I accept Mr Brand's calculation that the stair required an additional tread of 23 mm in order to comply with the AS product calculation and that the tread was too narrow given the riser height.
Although there is only one stair in the workshop and the landing height is 340 mm the stair still comes within the definition of a stairway in the BCA because it is joined by two risers. BCA D2.17ii provides that a handrail is required along each side of a stairway if the total width of the stairway is two metres or more. Given that the width of the stair was 2.2 m, a hand rail was required. Consistent with the BCA, the relevant AS in respect of guardrails and handrails (s 4.6) states:
Every stairway shall be provided with at least one handrail and when the width of the stairway exceeds 1,000 mm, a handrail shall be provided on each side.
Adopting the definition of 'stairway' in the BCA a guard or handrail from the top of the landing to the workshop floor was therefore required. I accept Mr Brand's evidence that a central position for a hand rail would have been appropriate given the width of the stairs.
Mr Brand also gives evidence about the desirability of using non‑slip strips on stairs however neither the BCA nor the AS required the use of strips at the time of construction. Mr Wyatt did not give evidence of slipping on the stair at the time when he fell.
I accept the evidence that the stair was repainted by Mr Wyatt in December 2003. No evidence has been led as to the appearance of the exposed surface of the brick/paint combination of the stair in September 2003, nor is there any evidence as to whether non‑slip products had been added to the paint used on the stair prior to December 2003, consistent with the non‑skid additive that was applied when the stair was repainted. There is no evidence that the stair's surface was slippery before the fall from which I could conclude that a non‑slip strip should have been installed.
Mr Wyatt fell when he was unlocking the workshop and had yet to turn on the lights in the workshop. Counsel for the plaintiff submits that the lack of contrast between the stair and the workshop floor, given that both were painted in the same grey colour, may have contributed to the dangerous state of the stair. I do not have any evidence of the appearance of the stair in 2003 however a photograph of the stair taken after it had been extended and repainted in 2004 (exhibit 10) shows shadowing in the undulations between the bricks where either concrete or mortar have been used to join the bricks thereby providing a visual edge to the stair.

On the very limited evidence in relation to the appearance of the stair in 2003 I accept that the stair would have had undulating shadows on its edge providing a degree of contrast. There is no evidence that uniformity of colour contributed to the dangerous nature of the stair.
Ms Miller, ergonomist and physiotherapist, gives evidence of the bio‑mechanics involved in descending stairs based on anthropometric studies, that is, the study and analysis of the size of human beings. Counsel for both the first defendant and the second defendant objected to Ms Miller's evidence on the ground that it was not expert evidence. Counsel submits that how Mr Wyatt went down the stair was a matter of fact for the court to determine because how a person descends a stair is not an issue requiring expert testimony. However Ms Miller clarified her area of expertise and gives evidence that a person will usually impact on a stair with the ball of the foot first and that a longer leg will lead to the ball of the foot impacting further out on the stair than a shorter leg because the leg is like a pendulum. Ms Miller says that at a height of 1.79 m, the ball of Mr Wyatt's foot would extend further out from the step than the ball of a shorter person's foot would. Analysis upon which the BCA and AS are based would take into account varying sizes of foot consistent with Mr Wyatt's size 10 work boot. In Ms Miller's opinion the tread was too short and a hand rail should have been installed in order to make the stair safe.
I accept Ms Miller's expertise and experience as an ergonomist and a physiotherapist and I accept that the studies upon which her findings are based are sound.
Factually however the conclusion that she reaches is self evident, that is, a taller man with a bigger foot takes up more room on a stair and has a longer stride. I accept her expert opinion however her evidence on descending of stairs carries very little weight.
More relevantly, Ms Miller notes that had she been asked as an ergonomist to look at the situation and had she known that a report of a hazard in respect of the stair had been made, then she would have looked at the problem very closely leading to the recommendations that she ultimately made. Mr Brand similarly would have advised that the stair tread was too narrow and that a handrail was required. Mr Airey, the architectural expert called by the first defendant, acknowledges that under the relevant BCA and AS the stair did not comply although his report and evidence was directed at a different BCA. I prefer the evidence of Mr Brand who considered the correct BCA and AS and I accept that had expert evidence been obtained prior to September 2003, the stair would have been deemed unsafe.

Ultra Tune Osborne Park

Mr and Mrs Smith had purchased the Ultra Tune Osborne Park franchise and had run the workshop for a period of five years before Mr Smith took up a part‑time employment opportunity, resulting in the need to employ someone at Ultra Tune Osborne Park who could be a mechanic, run the workshop and fill in when Mr Smith was away.
The Osborne Park business involved sophisticated diagnostics as well as the servicing of old and new cars and all sorts of repairs.
Mrs Smith performed clerical duties for the second defendant however she could not cope with all of the office work in her husband's absence and wanted a manager/mechanic who could also assist her. Mr Wyatt was employed by the second defendant in the manager/mechanic role commencing on 1 May 2003. Mr Wyatt's job included dealing with customers who wanted involved information, answering questions, ordering parts and coordinating and running the workshop.
Both Mr Smith and Mrs Smith were happy with Mr Wyatt's work performance. Mr Wyatt was interested in the turnover of the business and the first defendant noted that turnover increased whilst he was employed. Mr Smith confirms that the turnover only fell after Mr Wyatt resigned in August 2004 during a period when Mr Smith was overseas. When first employed, Mr Wyatt was very much into the safety side of the business and requested signs indicating dangers within the workplace that Mrs Smith bought immediately. Mr Smith's evidence is that Mr Wyatt was a fairly good employee who basically ran the business as he himself would have. Mr Smith assessed Mr Wyatt as being fairly conscientious and believed that most of the customers appeared happy with him.
Mrs Smith says that Mr Wyatt complained about the safety of the stair soon after he commenced employment. Mr Smith cannot remember the date but he too recalls that Mr Wyatt complained about the safety of the stair.
Although the Smiths recall a complaint, neither of the Smiths recall Mr Wyatt's complaint being raised at a formal meeting. In contrast to the Smiths' recollection, Mr Wyatt says that a formal meeting was held after he had been employed for approximately one week during which he raised a number of management issues including the issue of the safety signs. Mr Wyatt says that the stair was the most important issue that he raised. Mr Wyatt describes the alleged meeting in this way (ts 29):
I complained to Mike Smith and Robin Smith the very first week I was there. We had an initial meeting because I wasn't happy with the way things were with the site after I'd been there for a week and there were things I wanted to instigate to make the workshop run a lot smoother and be a lot more efficient and be more profitable. At that point that was one of the things – the main things that I pointed out to them was the step was inappropriate … I told them the step was not safe. I showed them … 'Look, this is too small'. I showed with my hands. I'm pointing at it and going 'This is too small'. When you step down you – you're going to slip off. I've already slipped off a couple of times. Fortunately at this point no-one had been hurt and Mike said to me 'Well, show me what's going on'. So we went out there and I showed him. He goes 'Yeah', he goes 'I've always thought it was a bit small' and I – as I sort of showed him how I went down he goes 'Yes, it is dangerous. Yeah, well get a look at it. I'll take that in hand and I'll ring the agent' and that's where the conversation went and – and that's where we left it.
Mrs Wyatt recalls picking her husband up after a meeting soon after he commenced employment. She was not present at the meeting and relied on her husband's description of what had occurred as being a meeting.
Both Mr Smith and Mrs Smith say that to the best of their knowledge no‑one had slipped on the stair or complained about the stair in the first five years that they had run the Osborne Park workshop. The stair was used very regularly, Mr Smith estimates that he and Mr Wyatt probably used the stair 50 times per day and Mrs Smith estimates the use to be about 100 times a day.
Neither Mr Smith nor Mrs Smith considered the stair to be dangerous however Mr Smith was not familiar with the building codes and once he received a complaint he wanted an expert to have a look at the stair to determine if any work or structural changes were required to it in order to make sure that it was safe. It is for this reason that Mr Smith says he contacted Ashley Mijat on behalf of the second defendant on at least two occasions to request that the stair be examined. Mr Smith acknowledges that he was not an expert in relation to the safety of the stair nor were any of the mechanics. He accepts that just because people in the workplace did not think that the stair was dangerous did not mean that an expert would agree. Despite being aware of the need to have an expert assessment, Mr Smith did not instruct his workers to avoid using the stair by taking a deviation and going around to the front of the building, nor did he give any other direction in relation to avoiding the stair until an expert assessment could be made.
Mr Smith agrees that he carried out his own risk assessment and determined that the bricks of the stair were sound and that nobody had ever fallen on the stair. As a result of his assessment, he did not consider the lengthening of the stair nor construction of a handrail was required. Mr Smith made the assessment despite being aware that he lacked expertise to know precisely what (if anything) was required to make the stair safe.
Mrs Smith recalls that Mr Wyatt had mentioned that he had had a few slips on the stair before the date of his fall however she had not witnessed any slip or fall. Mrs Smith had fallen from the landing above the stair in March 2003 but she had never fallen from the stair itself. The only complaint in relation to a fall from the stair had come from Mr Wyatt.
Although Mrs Smith denies that there was a need to fix or change the stair in any way, she accepts that in a record of interview with Mr Chilvers recorded 1 March 2005 (exhibit 49) she had been recorded as saying (in the context of the stair being fixed) (ts 1191):
There's a wider portion at the bottom? And you said: 'Yes, a lot safer'? – Yeah. Well, it's wider, there's more room. But I didn't have any problems before.
Why did you say: 'A lot safer'? – Well, because it – Rob said it was better for him. So obviously it was wider. So we had no concern then that anyone else would ever have a problem.
But until that was done it was less safe? – Well, we didn't think so. Not until he started complaining that he was having problems did we think, 'Well, we'd better get it looked at' ‑ ‑ ‑
… The investigator asked you did you think it was a lot safer and you said, 'Yes, a lot safer'? – Yeah.
The pre‑recorded record of interview questions and answers were further put to Mrs Smith (ts 1192 ‑ 1193):
How did you find them [the stair] since the repairs have been carried out? You said: 'Better. Better. I didn't particularly have a problem, but I could see what the problem was. But, yes, much better'. What did you mean when you say you can see what the problem was? – Well, Rob pointed it out to us that when he put his foot on the second thing he didn't feel as though it was wide enough. Other than – before then I haven't even thought about it because I've never had a problem so ‑ ‑ ‑
… And after it was widened you could see that the problem was fixed? – Why – why he – why he had a problem. Yeah.
The Smith's had never personally experienced problems with the stair prior to receiving Mr Wyatt's complaint however Mrs Smith acknowledged that she could see why Mr Wyatt had a problem with the stair once the stair had been fixed and Mr Smith acknowledged that he should have sought expert advice in relation to the safety of the stair because he himself was not an expert. I find that the first defendant should have acted on the complaint made by Mr Wyatt in relation to the safety of the stair once Mr Wyatt's complaint was received.

The second defendant's position

Both Mr Lenard Mijat and Mr Ashley Mijat give evidence on behalf of the second defendant. The second defendant through Roklen Investments Pty Ltd manages commercial and real estate property, the main complex being the King Edward Commercial Centre in Osborne Park that houses the Ultra Tune Osborne Park workshop.
Roklen Investments commenced stage one of the redevelopment of the Osborne Park property in 1991 when an architect, engineer and builder were involved in the development processes relevant to the Ultra Tune workshop.
Stages 2, 3 and 4 of the development then proceeded. Mr Mijat's son Ashley (who also had an interest in the Osborne Park property) had the co‑ordinating role of the construction from Stage 3 onwards (2002 to 2006). Ashley Mijat also dealt with the day to day running of the Osborne Park complex.
Mr Lenard Mijat recalls that in November 2003 Ashley advised him that as part of the management process he had had enough of receiving Mike Smith's complaints in relation to the Ultra Tune workshop premises. Ashley told his father that Mr Smith complained about everything and that no other tenant in the complex complained to the level that Mr Smith did. Ashley said that Mr Smith had complained to Ashley that a step in the workshop was not wide enough. Ashley told his father that he had disagreed with Mr Smith's assessment, however Ashley had nevertheless arranged to have the stair repaired in order to stop Mr Smith from complaining further. Ashley had also told his father that it was difficult to carry out the requested repair to the stair because it was to occur over the Christmas period. Mr Mijat did not ask his son to clarify whether Mr Smith had ever raised the issue of the stair with him prior to November 2003.
Mr Ashley Mijat (Mr Mijat) says in evidence that he commenced as assets manager with Roklen Investments in 1993 and became manager of the Osborne Park complex in 1998 or 1999. Mr Mijat oversaw three of the four stages of redevelopment of the Osborne Park complex that increased the complex size from 800 m² to 7,300 m².
Mr Mijat describes the role of assets manager for the Osborne Park complex as overseeing the property management and the leasing and having a macro overview of the complex. Mr Mijat estimates that in the course of carrying out his role he would see Mr Smith at the Osborne Park complex approximately once each month and see Mrs Smith approximately once every three months, an estimate that is lower than the number of contacts referred to by Mr Smith in his evidence being, he says, a weekly contact. Mr Mijat describes that although there were 16 tenants in the Osborne Park complex in 2003, Mr Smith and the Ultra Tune workshop took up more of his time than the other 15 tenants combined. If Mr Smith asked him to do something then Mr Mijat jumped twice as high because if he did not it was just painful (ts 1307).
Mr Smith would always contact Mr Mijat directly even when he was directed to contact the managing agent, CB Richardson Ellis. Mr Mijat would attend to Mr Smith's complaint personally or direct Mr Smith back to the managing agent depending on what the issue was, however if the managing agent did not carry out Mr Smith's request immediately then Mr Mijat would receive calls from Mr Smith until the issue was dealt with.
It is for this reason that Mr Mijat took on maintenance issues relevant to Ultra Tune Osborne Park that, in his own assessment, would be described as micro issues that would normally have been dealt with by a managing agent rather than by the assets manager.
Mr Mijat had had experience working in shopping centre management prior to taking on the role of assets manager. As a result of his experience in shopping centre management he was familiar with the ramifications of complaints. In evidence he assesses that a report that someone had fallen at the Osborne Park complex would not have been a micro matter because of the potential of an insurance claim being involved. Mr Mijat agrees however that if the issue of widening a step had been raised without reference to a fall on the stair (there being no potential ramifications of an insurance claim raised) then he may have considered the complaint to have been a micro issue only.
As a result of the relationship between Mr Mijat and the first defendant, Mr Mijat took on the responsibility for issues such as reticulation, air‑conditioning and minor repairs. Consistent with Mr Mijat's evidence, Mr Smith states that the managing agents CB Richardson Ellis did not carry out his requests for repairs and accordingly he would turn to Mr Mijat directly in relation to building maintenance.

Was the second defendant aware of Mr Wyatt's complaint about the stair before 17 September 2003

Both Mr Wyatt and Mr (Ashley) Mijat give very detailed evidence of a meeting between them in relation to the condition of the workshop stair.
Mr Wyatt's evidence is that he met Mr Mijat on three occasions, twice before he fell on the stair and once after the fall.
Mr Mijat however is emphatic that he only met with Mr Wyatt once when Mr Wyatt demonstrated the danger of the stair to him and that the meeting was in November 2003. Mr Mijat denies that there was any discussion or notification to him or his agents before November 2003 in relation to a complaint about the stair.
Mr Wyatt says that he first complained to Mr Smith and Mrs Smith about the stair in his first week of employment and demonstrated his concern in respect of the width of the stair. He says that after making the initial complaint to the Smiths he saw Mr Smith talking to a man outside of the workshop. Mr Smith introduced the man to him as Ashley Mijat the owner of the premises. Mr Wyatt's evidence is that he specifically recalls meeting Mr Mijat at that time because he was flattered that Mr Smith chose to introduce him as the new workshop manager. Mr Wyatt says that he himself then led Mr Mijat into the workshop telling him to be careful of the cars and that he guided him to the stair where he told Mr Mijat what he thought was wrong with the stair and physically demonstrated his concerns to Mr Mijat by going up and down the stair and then asking Mr Mijat to repeat the same actions.
Mr Wyatt says that Mr Mijat agreed with him that the stair was dangerous and said that he would get it looked at and sorted out.
Mr Wyatt says that the second meeting occurred in late August 2003 when he spoke to Mr Mijat again who told him that he had received a quote for the stair repair from a builder who had attended at the workshop two to three weeks earlier. Mr Wyatt says that on this occasion he again raised with Mr Mijat that the stair was dangerous and again physically showed him the danger.
Mr Wyatt says that he spoke to Mr Mijat for a third time in November 2003 after the fall when he raised with Mr Mijat that nothing had been done about fixing the stair. Mr Wyatt says that Mr Mijat advised that another builder whose name Mr Wyatt cannot recall would look at the stair. The builder turned up in late December 2003 but did not carry out the repairs until February or March 2004. Mr Wyatt says that it was at this time in 2004 that an additional course of bricks was added to the stair by the bricks being placed sideways in front of the existing row of bricks and secured in place. Mr Wyatt says that in his view the addition of the bricks was not a sufficient repair because he had also told Mr Mijat about the need for a handrail and for safety edging at the first meeting. Mr Wyatt says that Mr Smith was present when he spoke to Mr Mijat and that it was soon after he commenced employment. In Mr Wyatt's view a handrail and safety edging was still required.
Mr Mijat's evidence is inconsistent with Mr Wyatt's evidence because he says that the first he knew about a complaint in respect of the stair was in November 2003. Mr Mijat recalls that he attended the Ultra Tune Osborne Park premises in November because of a complaint that had been made by Mr Smith over the mobile phone in relation to the reticulation. It was when Mr Mijat attended to look at the reticulation that Mr Wyatt came out of the workshop and said to Mr Mijat that Mr Mijat's father should provide a plate separator to deal with oil spills at the workshop because the provision of a plate separator for oil was not Ultra Tune's responsibility. Mr Wyatt then made mention of the fact that he had fallen over and he took Mr Mijat into the workshop in order to raise the issue of the stairs with him.
Mr Mijat remembers that he felt that the complaint about the stair was a bit strange because he had gone to the premises in relation to a complaint about the reticulation. Mr Wyatt had gone up and down the stairs while mentioning that he had issues with his knees and that he had had prior knee operations and that he also raised something to do with his work previously at a Caltex workshop up at Joondalup:
He was going up and down with a lot of ease having not tripped there in front of me. He expressed the opinion that the step was too short (ts 1306).
Mr Mijat says that he had never received a complaint in respect of the stair before and was completely dumbfounded as to why Mr Wyatt thought there was an issue. No‑one had raised the stair in the 10 year period he had been involved with the complex and the installation of the stair had been passed through the council, through strata inspection and by an architect and builder. Mr Smith had never mentioned the stair to Mr Mijat and Mr Mijat felt, given the way the issue was raised, that he was being set up for an insurance claim.

During the course of its case the third party called evidence from Mr Chong who is the in‑house counsel for the third party. In cross‑examination by counsel for the second defendant it became apparent that Mr Chong was referring to files that were held by the third party in respect of the other parties that had never been disclosed to the other parties. The second defendant successfully applied for the cross‑examination to be adjourned midway through the cross‑examination of Mr Chong so that disclosure could occur. The trial was therefore adjourned on 2 July 2010 and did not recommence until 17 August 2010 when Mr Chong was recalled.
Counsel for the third party submits that because the parties did not seek to rely on any document that was in a file that had not been disclosed the third party should not bear the costs of the adjournment or the costs of reconvening the court in respect of Mr Chong's evidence and that, in any event, no additional court time was required to complete Mr Chong's evidence. I do not accept this submission.
The third party had an obligation to disclose by discovery. Had disclosure occurred at the appropriate time then a significant part of the cross‑examination of Mr Chong by counsel for the second defendant would not have proceeded. In that event it would have been possible to complete Mr Chong's evidence on 2 July 2010.
It is also submitted by counsel for the third party that I should consider the making of a Bullock order or a Sanderson order in respect of the third party costs. The third party's claim against the first defendant was unsuccessful and there is no basis upon which the court would properly exercise its discretion to make an order of that type between the second defendant and the third party.
Counsel for the second defendant submits that the third party should pay at least two‑thirds of the second defendant's costs in relation to the third party proceedings if a costs order between the parties is to be made. I do not accept that an order in respect of two‑thirds of the costs is appropriate.
The time taken in court in relation to the construction argument raised by the third party was approximately equal to the total of the time taken in respect of the third party's argument in relation to impossibility together with the delay caused by non‑disclosure.
I therefore order that there be no order as to costs in relation to the third party proceedings between the second defendant and the third party.
The third party was unsuccessful in its argument in relation to the first defendant's obligations. There is no order as to costs between the third party and the first defendant.

Plaintiff's application for special costs against the first defendant

By application dated 21 December 2010 heard on 18 February 2011 the plaintiff applies for an order that the costs scale limits be removed in respect of the following items on a party to party taxation:
1.Item 6(b) giving further particulars of pleading.
2.Item 9(b) answers to interrogatories.
3.Item 16 getting up for trial.
4.Item 19(a) counsel fee on brief – first day of trial and preparation (and after 1 July 2010) 20(b).
5.Item 19(b) counsel fee at trial for second and subsequent days and specifically the taxing officer have discretion to allow the plaintiff's counsel a 'refresher' fee for each of the first days after any break in this trial – this is 21 June 2010 and 17 August 2010 be treated as first days of trial pursuant to item 19(a) of the Supreme Court Costs Scale 2008 and item 20(a) of the Supreme Court Costs Scale 2010 respectively and there be a certificate for the written closing submissions prepared by counsel.
The plaintiff's application is made pursuant to s 280(2) Legal Profession Act 2008 that was proclaimed to come into operation on 1 March 2009. By s 616(1) the current provisions in relation to costs contained in pt 10 of the Act only apply where the client first instructs the law practice on or after the commencement day. Otherwise as in this case, pt 13 of the Legal Practice Act 2003 will continue to apply as will the provisions of legal cost determinations made under s 210 of that Act. In relation to contentious business the Legal Practitioners (Supreme Court) (Contentious Business) Determination 1996 that operated at the relevant time applies. In this case the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2010 apply to the remuneration of practitioners based on the costs incurred during the period of their operation: see generally Cifuentes v Fugro Spatial Solutions Pty Ltd [2009] WASC 316 (S) [17] (Murray J).
Pursuant to s 215(1) of the Act the taxation of bills of costs of legal practitioners, as between legal practitioner and client and party; and any other aspect of the remuneration of legal practitioners the subject of a determination is regulated by legal costs determination (s 210 of the Act).
Section 215(2) sets out that if the court is of the opinion that the amount of costs allowable in respect of the matter under a legal costs determination is inadequate because of the unusual difficulty, complexity or importance of the matter, the court may –
(a)order the payment of costs above those fixed by the determination;
(b)fix higher limits of costs than those fixed in the determination;
(c)remove limits on costs fixed in the determination; or
(d)make any order or give any direction for the purposes of enabling costs above those in the determination to be ordered or taxed.
In dealing with s 215(2) in the supplementary costs decision of Heartlink Ltd v Jones as Liquidator for HL Diagnostics Pty Ltd(in liq) [2007] WASC 254 (S) Martin CJ said [12] – [15]:
The question posed to the court under s 215(2) will almost always arise before taxation has occurred. It is of course the responsibility of the taxing officer to tax the bill and identify with precision the amount that should be allowed in respect of the particular claim for costs. Section 215(2) also falls to be construed in the context of the well-known principle that at least in respect of costs as between party and party, the principle is that the successful party should be compensated by the unsuccessful party for their costs (see O 66 r 1, Rules of the Supreme Court 1971 (WA)).
Those two considerations provide a guide to the proper approach to be taken to the question posed to a court when an application is made under s 215(2). The policy considerations that should guide a court when addressing an issue under s 215(2) are, firstly, that the court should not usurp the role of the taxing officer and, secondly, that at least where party and party costs are concerned, the court should make an order that would give effect to the general principle of allowing the successful party to be compensated for their costs by the unsuccessful party, where appropriate.
There are two alternative ways in which one might approach the question of inadequacy posed by s 215(2). The first would be to require an applicant for an order under that subsection to satisfy the court that the bill to be taxed will, on the balance of probabilities, tax at an amount that is greater than the limit that would be imposed by the item in the relevant costs determination, which is therefore inadequate. The alternative approach would simply be to require an applicant for an order under the section to satisfy the court that there is a fairly arguable case to be put before a taxing officer to the effect that the bill to be taxed should tax out at more than the limit that would be imposed by the costs determination.
On this alternative view of the section, the court could arrive at the conclusion that the limit was inadequate because the maintenance of the limit would preclude the applicant from presenting a fairly arguable case to the taxing officer. The considerations to which I have referred, and in particular the view that the court should not, under this section, usurp or anticipate the role of the taxing officer, lead me to conclude that the latter of those two alternatives is the preferred approach to an application under s 215(2).
And further [16] – [19]:
… The second question is whether that inadequacy arises because of the unusual difficulty, complexity or importance of the matter.
It is common ground between the parties that the word "unusual" qualifies only the expression "difficulty" and does not qualify the words "complexity" or "importance". Another issue was, however, raised in argument in relation to those words, and that concerns the meaning to be given to the word 'importance'. Heartlink submits that the criterion of importance cannot be met having regard to the interests of the parties only, but must, in order to be satisfied, import an element of importance to the community.
I cannot see any reason in policy or principle why the word "importance" should be construed in this way. If it had been the intention of the legislature to require the court to give consideration to an issue of community or public importance, then I think it would have been reasonable to expect the legislature to use words that would connote that meaning, such as the well-known phrase "public importance" which is found in a number of other legislative provisions.
It seems to me that by reference to "importance" in this context, the legislature is allowing the court to have regard to the question of whether the work done was appropriate to the significance of the issues that arose in the litigation. Significance can arise either because of the significance of the issues to the parties or because of the significance of the issues to other prospective parties or to the public or to the community generally. In this case, the issues raised were of considerable significance to the liquidators in the practice of their profession, and in respect of whom serious allegations were made.
I adopt the analysis of Martin CJ in my assessment of the plaintiff's application.

Was the plaintiff's case of unusual difficulty or complexity or importance?

The plaintiff relies on the following in support of this application:
(a)affidavit of the plaintiff sworn 16 December 2010 (first Wyatt affidavit);
(b)affidavit of the plaintiff sworn 11 February 2011 (second Wyatt affidavit) annexing Peter J Griffin & Co's itemised account for professional services in the sum of $173,834.17; and
(c)affidavit of David Griffith Lang sworn 11 February 2011 (Lang affidavit) annexing a copy bill from counsel to the plaintiff in the sum of $150,381.
The pleadings relevant to the case relied on at trial were:
(a)statement of claim dated 3 February 2010;
(b)the first defendant's defence dated 15 September 2009;
(c)the second defendant's defence dated 12 January 2010.
All proceedings are important to the litigants involved, however, in this case the plaintiff had been unable to work for a number of years and was impecunious. The findings at trial were that the plaintiff had a significant disability that had severely limited if not extinguished his opportunity for future employment or retraining and that the disability would continue to mar his enjoyment of life and his ability to function independently. I accept that the matter is of importance because of the significant effect the trial outcome had on the plaintiff.
Counsel for the plaintiff has also submitted that the issues at trial were of importance to the community because of the legal issue in relation to the nature of the step from which the plaintiff fell. For the purposes for this application the issue in respect of the step and its ramifications did not make this trial a matter of importance.
The issues pleaded relevant to the plaintiff's case do not disclose any unusual difficulty however I accept that the trial itself did not run smoothly. The plaintiff was cross‑examined for four days by counsel for the first defendant and by counsel for the second defendant. Although the cross‑examination did not, of itself, increase the level of complexity in the trial, I accept that the cross‑examination added to the length of the trial. I also accept that the cross‑examination of the plaintiff on issues of credibility and the cross‑examination of medical experts by counsel for the first defendant and the second defendant did lead to the plaintiff calling Mr Rabin, physiotherapist, on the plaintiff's behalf in the second listing of the trial. The calling of a further witness would not alone have added to the complexity of the trial.
'Unusual' refers to whether the case can be considered as unusual compared to the 'usual run of civil cases' in the Supreme and District Courts and this involves a value judgment: see O'Rourke v P & B Corporation Pty Ltd [2008] WASC 36; (2008) 36 WAR 197 [22] – [25] (Martin CJ).
The unusual aspect of the presentation of the plaintiff's case was the large gap between the first listed period in February 2010 and the second period in June 2010 combined with the trial running significantly longer than had been anticipated. I accept that the length of the gap required both the solicitor for the plaintiff and counsel for the plaintiff to do more than simply refresh the matter prior to recommencement in June 2010. The plaintiff's case was prepared on two occasions being in February and June 2010.
The third period of trial in August 2010 related to the third party proceedings. Counsel for the plaintiff submits that following the closure of the third party's case lengthy and detailed closing submissions had to be presented on the plaintiff's behalf and that, given that the submissions were presented in the third part of the trial period after the third party's case closed an additional getting up component should be allowed in respect of the third listing. Although I accept that the plaintiff was required to prepare its case prior to the third period of trial in August 2010 because of the length of the trial and the gaps between the trial dates, the preparation was in relation to closing submissions and not in relation to the third party's case. Consistent with the decision of Murray J in Cifuentes v Fugro Spatial Solutions at [35] an additional allowance for counsel's closing submissions is, in an appropriate case, a proper exercise of judicial discretion.
Counsel for the plaintiff also submits that the closing submissions prepared in respect of the first defendant's case contained inaccuracies and did not properly reflect the evidence that had been led at trial. I reject this submission. The first defendant's submissions were professionally and competently prepared and presented and were lengthy and detailed. It would be very unusual in any proceedings to have submissions of one party reflect the summary and argument put by another party.
It is not disputed that a transcript was required in this case. I accept that a special allowance should be made for the costs of the plaintiff in acquiring the transcript: Michael Aaron James (by his next friend Rhonda Dawn James) v Grant [2009] WADC 201 (S2) [44] (Mazza DCJ).
A special order in respect of costs to be made in respect of the expert witness architect called by the plaintiff is also sought. Mr Brand gave expert evidence in relation to the safety and the compliance of the stair from which the plaintiff fell. No expert architectural evidence was called on behalf of the first defendant however the second defendant called evidence from an architectural expert Mr Airey. Although the first defendant ultimately relied upon some of the evidence given by Mr Airey, this, in my view, does not entitle the plaintiff to benefit from an order against the first defendant in respect of the evidence of Mr Brand in this case.
For the reasons that I have outlined, I order that the plaintiff's costs against the first defendant be taxed without regard to the limits of the Legal Practitioners (Supreme Court) (Contentious Business) Determinations 2008 and 2010 with respect to the following items:
(1)16 Getting up for trial.
(2)19(a) Counsel fee on brief – first day of trial and preparation.
(3)19(b) the taxing officer have discretion to allow the plaintiff's counsel a 'refresher' fee for 21 June 2010.
(4)The plaintiff is entitled to a certificate for the preparation of written closing submissions by counsel.
The plaintiff is entitled to a certificate for his costs of obtaining a transcript of the trial, such costs to be paid by the first defendant.
I also order that the first defendant pay the plaintiff's costs of this application to be taxed and paid if not agreed including the costs of conferral.
In making these orders I note that it remains a matter for the taxing officer to conclude, after considering the bill in detail, whether the amount to be allowed on taxation is less than the limit. The effect of these orders is to free the taxing officer of the constraint that would otherwise be imposed upon them: Heartlink Ltd v Jones as Liquidator of HL Diagnostics Pty Ltd (in liq) [27].