Gaskell v Denkas Building Services Pty Limited and Others

[2006] NSWSC 632

CITATION:	Gaskell v Denkas Building Services Pty Limited and Others [2006] NSWSC 632
HEARING DATE(S):	18 April 2005, 19 April 2005, 20 April 2005, 21 April 2005, 22 April 2005, 27 July 2005, 28 July 2005, 29 July 2005
JUDGMENT DATE :	23 June 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	1. Verdict for First and Third Defendants against the Plaintiff; 2. Plaintiff ordered to pay costs of First and Third Defendants
CATCHWORDS:	NEGLIGENCE - slip and fall in common area (toilet) of leased commercial office premises - claim for damages by tenant against owner and managing agent - whether breach of duty of care - whether breach of contract entitling tenant to damages
LEGISLATION CITED:	Conveyancing Act 1919 Evidence Act 1995
CASES CITED:	Chan v Cresdon Pty Limited (1989) 168 CLR 242 Glasshouse Investments Pty Limited v MPJ Holdings Pty Limited [2005] NSWSC 456 Jones v Dunkel (1959) 101 CLR 298 Manly Council v Byrne (2004) NSWCA 123 Jones v Bartlett (2000) 205 CLR 166 Wilkinson v Law Courts Limited [2001] NSWCA 196 Barrett v Dubbo City Council [2006] NSWCA 65 Makita (Aust) Pty Limited v Sprowles (2001) 52 NSWLR 705 Wyong Shire Council v Shirt (1980) 146 CLR 40 Ahluwalia v Robinson [2003] NSWCA University of Wollongong v Mitchell [2003] NSWCA 94 Sakoua v Williams [2005] NSWCA 405 Peter A Simon Real Estate Pty Limited v Ghabash [2004] NSWCA 467 Brodie v Singleton Shire Council (2001) 206 CLR 512 Rosenberg v Percival (2001) 205 CLR 434 Wilson v Peisley (1975) 50 ALJR 207 Watts v Rake (1960) 108 CLR 158
PARTIES:	David Antony Gaskell (Plaintiff) Denkas Building Services Pty Limited (First Defendant) Durussi Holdings Pty Limited (Second Defendant) Harding Rogers & Associates Pty Limited (Third Defendant)
FILE NUMBER(S):	SC 20763/01
COUNSEL:	Mr DW Elliott (Plaintiff) Mr JA Gracie (First Defendant) Mr J Catsanos (Second Defendant)
SOLICITORS:	GH Healey & Co - Chatswood (Plaintiff) Vardenega Roberts (First Defendant) Vardenega Roberts (Third Defendant)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

23 June 2006

20763/01 David Antony Gaskell v Denkas Building Services Pty Limited and Others

JUDGMENT

1 JOHNSON J: The Plaintiff, David Antony Gaskell, brings proceedings seeking damages in negligence and for breach of contract.

2 The Plaintiff alleges that, on 10 September 1998, he slipped on the floor of the men’s toilet in a building at 35-37 Railway Parade, Engadine where he leased business premises. He alleges that the fall caused injuries, including a marked deterioration of an existing injury to his left knee.

3 The First Defendant, Denkas Building Services Pty Limited (“Denkas”), was one of the owners of the building in September 1998. The Third Defendant, Harding Rogers & Associates Pty Limited (“HRA”), was the real estate agent, trading as Richardson and Wrench, Miranda, responsible for managing the building between 1993 and 1998.

4 Relief is no longer sought against the Second Defendant, Durrusi Holdings Pty Limited (“Durrusi”) which owned the building with Denkas in September 1998. Durrusi has been deregistered and proceedings against that entity have been discontinued.

5 A cross claim brought by HRA against Denkas was discontinued at the hearing, by consent.

6 Accordingly, the claims for relief which remain current in the proceedings are the claims for damages by the Plaintiff against Denkas and HRA. There is no issue that the Plaintiff experienced a fall in the premises on 10 September 1998. However, there is a significant controversy concerning the circumstances of that fall. A major question falling for resolution is whether the Plaintiff had observed pooling of water on the floor of the men’s toilet on occasions prior to 10 September 1998 and, if so, whether he had ever complained to representatives of Denkas or HRA about this matter.

7 Both Denkas and HRA deny liability to the Plaintiff. In addition, if liability was established against one or other or both of these Defendants, contributory negligence is raised and significant issues exist with respect to quantum of damages.

8 The Plaintiff commenced proceedings in this Court by filing a Statement of Claim on 7 September 2001. It was common ground between the parties that the Civil Liability Act 2002 has no application to these proceedings.

The Hearing

9 Mr DW Elliott of counsel appeared for the Plaintiff. Mr JA Gracie of counsel appeared for Denkas and Mr J Catsanos of counsel appeared for HRA at the hearing of the matter.

10 The following witnesses were called in the Plaintiff’s case:

(a) The Plaintiff, David Antony Gaskell, engineer - the Plaintiff was the principal witness in the proceedings - his examination in chief occupied some 88 pages (T17-75, 82-111) with cross-examination occupying some 260 pages over five sitting days (T76-81, 111-359, 398-405), and re-examination for 12 pages (T406-418) - a substantial and sustained challenge was made during cross-examination to the reliability and credibility of the Plaintiff;

(b) Dr GG Mahony, Orthopaedic Specialist (T360-394), was qualified to give opinion evidence for the Plaintiff for the purpose of the proceedings - he examined the Plaintiff in March 2002 and subsequently - a number of reports of Dr Mahony were tendered - Dr Mahony was challenged in cross-examination with respect to his opinions concerning the severity of the injuries said to have been suffered by the Plaintiff on 10 September 1998 and his prognosis;

(c) William Alexander Black, Operations Manager (T418-432) - Mr Black met the Plaintiff in 1997 and his evidence related to his observations of the Plaintiff before and after 10 September 1998;

(d) Ross William Girdler, Rehabilitation Consultant (T458-484) - Mr Girdler was qualified by the Plaintiff to give opinion evidence concerning the Plaintiff’s degree of impairment and issues of rehabilitation and vocational assessment - the evidence of Mr Girdler was strongly challenged during cross-examination with the tenor of the challenge being that his opinions concerning the Plaintiff’s prognosis were not based upon the true facts surrounding the Plaintiff’s employment since 1998 and involved a somewhat academic and fanciful approach confining his assessment of the Plaintiff’s likely future employment;

(e) Alan Murray Giles, Consultant (T541-601) - Mr Giles was qualified by the Plaintiff to give opinion evidence concerning the safety of premises which he inspected in November 2002 - counsel for the Defendants challenged a number of Mr Giles’ conclusions and contended that his evidence was of very limited assistance to the Plaintiff in this case.

11 In addition to the abovementioned witnesses, the Plaintiff relied upon reports of the following witnesses who were not required for cross-examination:

(a) Report dated 1 July 2004 of Sak Siow, Forensic Accountant, concerning the cost of past and future care and assistance of the Plaintiff - the Defendants challenged the assumptions made for the purpose of this report which emanated from the Plaintiff;

(b) Report dated 19 December 2003 of Mariano Rossetto, Accountant, concerning the Plaintiff’s economic loss - again, the Defendants challenged the assumptions made in this report which emanated from the Plaintiff;

(c) Report dated 12 February 2003 of Dr Robert Favaloro, the Plaintiff’s treating doctor;

(d) Report dated 6 March 2003 of Dr Kalev Wilding, Orthopaedic Surgeon, concerning treatment provided to the Plaintiff for injury to his left knee following a motor cycle accident in 1983 and the examination of the Plaintiff following the incident on 10 September 1998;

(e) Report dated 12 March 2003 of Judith Barnett, Physiotherapist, concerning examination of the Plaintiff on 10 September 1998 and physiotherapy provided to him after that date;

(f) Report dated 16 June 2004 of Adrianne Howard, Occupational Therapist, concerning an assessment made of the Plaintiff and his domestic activities - the Defendants challenged many of the factual assumptions relied upon by Ms Howard which emanated from the Plaintiff.

12 No oral evidence was called on behalf of Denkas. A number of documents were tendered in its case including medical reports and documents produced on subpoena.

13 The following witnesses were called in HRA’s case:

(a) Peter John Rogers, a former principal of HRA trading as Richardson & Wrench Real Estate Agency, Miranda (T516-539);

(b) John Phillip Harding, a former principal of HRA trading as Richardson & Wrench Real Estate Agency, Miranda (T603-619).

14 In addition to these witnesses, a number of documents were tendered in HRA’s case including medical reports and other documents obtained on subpoena.

The Plaintiff

15 The Plaintiff was born on 27 February 1951. He was 47 years old at the date of the incident.

16 The Plaintiff is married and has resided for a number of years at Engadine with his wife and children. His family comprises three daughters and a son. The Plaintiff’s youngest child was 18 years old as at April 2005 (T27.35).

17 The Plaintiff was awarded a Diploma in Technical Engineering (Civil) in 1980, followed by a Degree in Structural Engineering in 1989. He completed two years of a four-year MBA at the University of Technology between 1987 and 1989.

18 The Plaintiff occupied a number of positions in private industry in the engineering field during and after his university studies (T19.15).

19 In and after 1988, the Plaintiff conducted business using the corporate entity, Gaskell & Associates Pty Limited.

The Plaintiff’s Business Activities from 1993 to 2000

20 In late 1993, the Plaintiff ceased working for Gaskell & Associates Pty Limited and conducted business using the corporate entity, Hydrofix Pty Limited (“Hydrofix”) (T24). At the same time, the Plaintiff carried on business under the business name David Gaskell & Associates. According to the Plaintiff, “they were quite separate businesses” (T24.46). David Gaskell & Associates was a consulting engineering firm involved in the design of engineering structures and civil works and supervision of those works. Hydrofix carried on predominantly seasonal work undertaking repairs to swimming pools (T25.10).

21 As will be seen, the financial success or otherwise of the Plaintiff’s business activities between 1993 and 2000 became a significant issue in the hearing. Counsel for Denkas and HRA submitted that the Plaintiff’s businesses were financially unsuccessful in that period and that this operated adversely to the Plaintiff on the question of damages and, significantly, as to his credit given certain evidence he gave at the hearing.

The Plaintiff’s Pre-Existing Injuries

22 In April 1983, the Plaintiff suffered serious injuries to his left leg when he fell from an off-road motor cycle which pinned his leg to the ground (T19.40, T238.22). Prior to this accident, he had no problems with his left leg.

23 Three days after the 1983 accident, the Plaintiff underwent open knee surgery. Arthroscopic procedures were performed on his left leg again in May 1987. Both procedures were carried out by Dr Wilding.

24 At the time of the second round of surgery in May 1987, Dr Wilding informed the Plaintiff that he had degenerative changes present in this knee and that he would need to take care of it (T238.55 – 239.05). It was Dr Wilding’s opinion that the Plaintiff would have required a total left-knee replacement as a result of the 1983 injury even if the September 198 fall had not occurred (Exhibit O, page 4).

25 The significant injuries to the Plaintiff’s left knee required physiotherapy treatment in September and November 1996 (T240-244). From at least this time, the Plaintiff’s left knee displayed some signs of recovery, with occasional set backs resulting from events which caused subsequent aggravation (T244-266).

The Leased Premises

26 The premises at 35-37 Railway Parade, Engadine had been converted from a squash court complex to an office building at some time prior to 1993. According to the Plaintiff, the offices on the first and second floors were modified squash courts so that each office was the size of a squash court and the actual glass windows in the offices were the glass backs of the squash courts (T32.40). There were separate male and female toilets on the first and second floors for use by the tenants, their employees and clients. The toilets were located in a central area of the building around which the offices were spread (T33.14). The men’s toilet on the first floor was diagonally opposite, but up three stairs from the entry to the Plaintiff’s office (T33.20). A car park was located underneath the rear of the building (T32.33).

27 On 9 August 1993, Denkas and Durussi entered into a management agency agreement with HRA with respect to the premises (Exhibit 19). This agreement continued to govern the relationship between Denkas and HRA in September 1998 and beyond (Rogers, T517.7).

28 In December 1993, a written lease was entered into between Denkas and Durussi, as lessors, and Hydrofix, as lessee, with respect to Suite 6 on the first floor of the premises (Exhibit 21). The lease was for a term of three years with an option to renew for a further term of three years (Exhibit 21, clauses 1, 4).

29 According to the lease, Hydrofix was named as the lessee at the request of the guarantor who was identified as the Plaintiff (Item 4, Part II, lease). Clause 14.2 of the lease provided as follows:

“The Guarantor and the Lessee acknowledge that by their execution this Lease has been granted by the Lessor at the request of the Guarantor on condition that the Guarantor should guarantee to the Lessor the Obligations.”

30 Clause 5.1 of Part II of the lease provided for a basic rent of $8,797.50 per annum payable by equal monthly instalments in advance, with a rent review to be conducted in accordance with Part III of the lease.

31 The common seal of Hydrofix was affixed to the lease in the presence of the Plaintiff as director and his wife, Susan Gaskell, as secretary (Exhibit 21, page 19). In addition, the the Plaintiff executed the lease as guarantor (Exhibit 21, page 20).

32 Accordingly, the lease was entered into with Hydrofix as the tenant at the request of the Plaintiff himself. He was a party to the lease as guarantor and acquired personal responsibilities as a result under the lease.

33 Clause 4.2 of the lease provided as follows:

“If the Lessee continues to occupy the premises beyond the expiration of the term of this Lease with the consent of the Lessor otherwise than pursuant to a further Lease granted by the Lessor to the Lessee he shall do so as a monthly tenant only at a rental payable monthly in advance equal to one twelfth of the current rent from time to time payable during such monthly tenancy. Such tenancy shall be terminable at any time by either party giving to the other one (1) months notice in writing but otherwise shall be subject to such of the provisions hereof as are not inconsistent with a monthly tenancy.”

34 The Lessee covenanted as follows in paragraph 6.14 of the lease:

“To give to the Lessor prompt notice of any damage defect or deterioration affecting the premises or any accident to or defect in the water gas drainage or electrical installations appliances or fittings and the Lessor his servants and agents shall have the right but not the obligation to enter the premises at reasonable hours so often a [sic] may be necessary to attend thereto.”

35 Clause 8.1 provided for the lessor’s right to enter:

“The Lessor shall have the right for itself its architects surveyors agents or other authorised servants or workmen to enter upon the premises to carry out any works or make any repairs alterations or additions including installation of telephone electricity or cable services to the premises PROVIDED THAT such works shall be carried out by the Lessor without undue interference with the occupation and use of the premises by the Lessee.”

36 Clauses 10.7 and 10.8 of the lease related to the use of car spaces and common areas including toilets:

“10.7 The Lessee will have the right to the exclusive use of two undercover car spaces with access it to [sic] and egress from in common with other occupiers of the Building.

10.8 The Lessee may use in common with the Lessor and other persons entitled to use them the footways passageways toilets driveways and other common areas and grounds for the respective purposes for which they were designed and intended.”

37 Curiously, clauses 13.1 and 13.2 refer again to car parking and common areas:

“13.1 The Lessee will have the right to the exclusive use of two car spaces with access thereto in common with other occupiers of the said building.

13.2 The Lessee will have the right to use in common with the Lessor and other persons the footways passageways toilets driveways and such other areas grounds pertinences [sic] and conveniences of and in relation to the building for the respective purposes for which they were designed and intended.”

38 In March 1996, Hydrofix was deregistered (T110.25). Thereafter, Denkas as landlord, and HRA as managing agent, accepted rent from the Plaintiff and the Plaintiff continued to conduct his business from the premises (T37-38). This position maintained up to and, indeed, after the date of the Plaintiff’s fall on 10 September 1998. The evidence indicates that no formal written tenancy agreement was entered into between 1996 and 1998.

39 The Plaintiff was the Senior Associate of David Gaskell & Associates. HRA managed the building at all relevant times. Correspondence between HRA and the Plaintiff at relevant times used the David Gaskell & Associates letterhead (T47.20).

40 In about March 1998, the Plaintiff’s business moved from Suite 6 to Suite 4A, another area on the first floor of the building (T47.04).

41 The original tenant, Hydrofix, ceased to exist as a separate legal person. The Plaintiff, the guarantor under the Hydrofix lease, continued to occupy the office premises. Thereafter, the payment of rent by the Plaintiff and acceptance of rent by Denkas and HRA gave rise to a tenancy at will with the Plaintiff as tenant: s.127 Conveyancing Act 1919; Chan v Cresdon Pty Limited (1989) 168 CLR 242 at 248-249. The lease was terminable on one month’s written notice expiring at any time. There was imported into that tenancy a covenant to pay rent in the terms of the covenant in the Hydrofix lease, as well as the other covenants in that instrument so far as they were consistent with such a tenancy: Chan v Cresdon Pty Limited at 249.

42 I accept, for present purposes, that the conditions of the lease continued to permit the Plaintiff, as tenant, access to the men’s toilet and other common areas of the building, including entries and passageways, so as to enable him, his employees and clients to use the premises for the purpose for which they were leased. This is entirely consistent with the original written lease. If there be any question concerning the application of the provisions of the original written lease to this tenancy at will, then a sensible commercial operation ought be given to the commercial tenancy represented by the offer and acceptance of rent as between the Plaintiff on the one hand and Denkas and HRA on the other hand as between 1996 and September 1998: Glasshouse Investments Pty Limited v MPJ Holdings Pty Limited [2005] NSWSC 456 at paragraph 15.

43 I am satisfied that the Plaintiff was the tenant of the office premises, with a right to use the men’s toilet, at the time of the incident on 10 September 1998.

Events on and after 10 September 1998

The Fall

44 The Plaintiff told the Court that he had been in the field on the morning or 10 September 1998, but had returned to the office. He had a meeting scheduled at Caringbah at 2.00 pm that day. Before leaving his office to set out on the journey to Caringbah, he went to the men’s toilet on the first floor of the premises.

45 The Plaintiff entered the men’s toilet at about 1.30 pm that day (T48.28). He described the floor as comprising a glazed-tile surface with a “sort of a light colour, sort of an aqua, like a blue, bluey-grey” (T48.39). The Plaintiff said that the tiles had remained the same since he commenced his tenancy in 1993(T48.44). The Plaintiff gave the following account of the fall in his evidence in chief (49.13):

“Q. Sir, when you went to the bathroom, what happened?
A. I went to the bathroom and I flushed the toilet. I turned to step down, as I would normally do. I stepped down with my right foot and placed the area of the foot where there was some water and, without warning, that foot slipped extremely forward very quickly and I fell slightly to the left and as my leg went forward, my left leg sort of basically remained where it was and just ran down a little from the step and I fell back onto it with my head backwards and my buttocks were pinning my ankle and my foot.

Q. Which ankle?
A. My left ankle.

Q. Did you notice any pain in any part of your body?
A. I noticed severe pain both in my foot and in my knee.

Q. Which foot, sir?
A. In my left foot.

Q. Which knee, sir?
A. My left knee.

…


Q. Did you notice while you were there on the floor the water that you described earlier?
A. Not as I entered or as I stepped down I didn't.

Q. When you were on the floor did you notice it?
A. Oh, yes, when I was on the floor, because I was now actually lying partly in that water.

Q. What did you notice about your clothing?
A. It was damp.

Q. Had you noticed this water previously on your way to the urinal?
A. No, I hadn't.

Q. Had water spilled from the urinal onto the floor while you were there?
A. No.

Q. Had you noticed water in that area previously?
A. Yes, I had seen water in that area previously.

Q. On how many occasions had you seen it there previously?
A. On many occasions.”

46 Shortly after, the Plaintiff was asked (T51.33):

“ELLIOTT: Q. Sir, how long were you on the floor for before you got off it?
A. Couple a minutes. I couldn't move to start with. I couldn't move my leg out from underneath me. I called out, but because of the location of the bathroom and the other offices there's no sort of direct sort of hearing you know, no one heard me, so I stayed there until I worked out to roll over onto my side to release my leg.

Q. Was there any reason why it took you a while to work out that you could get to your feet by rolling to your side?
A. Well, I was particularly worried about the knee. I had had a previous accident on the knee and I had not been able to bend the knee anything close to the amount that it had been bent. It was actually a full flexure, so I was in a full squat, and that movement hadn't occurred I hadn't ever attempted that movement since 1983. So I was concerned that I had really, you know, torn major parts in my leg.

Q. When you rolled to your side were you able to then get to your feet?
A. Yes.

Q. How did you do that?
A. I used the hand basin and lifted myself up to my feet.
…

ELLIOTT: Q. When you got to your feet did you notice anything about pain in your body?
A. Yes. I had pain in my lower back and my ankle and, in particular, in my knee.

Q. Did you make your way out of the bathroom?
A. Yes. I made my way out of the bathroom and down to my office.

Q. You had to descend the stairs?
A. I descended the stairs, yes.

Q. How was that, sir?
A. With difficulty. I used the wall to support myself. There's only three stairs.

Q. Did you make your way back to your office?
A. Yes.

Q. What sort of condition was your clothing in?
A. I was damp on my right side, on my right buttock.”

47 The Plaintiff accepted that he would have used the men’s toilet two or three times a day for every day he was in the office (T350.1). He said that he would be in the office two to three times a week on average (T350.12).

48 The Plaintiff said that he did not believe he had fallen in urine (T352.50). He was cross-examined concerning Mr Rogers’ account of the conversation with him soon after the fall (to which later reference will be made) in which Mr Rogers states that the Plaintiff said that he had a fall and the floor had been “wet with urine or something” (T352.25).

49 The Plaintiff was asked (T353.9):

“CATSANOS: Q. So after you had this fall it is likely that you thought to yourself you had slipped in urine, or something?
A. If you are asking me the question a second time, it is possible that it was urine; it is possible that it was water and urine. At the time I was a little focused on other things and didn't take note of it, except for the fact that I know I didn't wash my clothes and that I went out with the clothes wet. So if I had really thought it was urine, I probably would have washed my clothes out.

Q. Could it be, sir, that when you spoke with Mr Rogers, if you accept from me that you did, in the days immediately after this fall you said absolutely nothing to him about any defect in the bathroom resulting in a pooling of water?
A. I'm not saying that the conversation didn't take place. I can't recall the conversation at all, so how could I recall what I said?

Q. Well, I'm putting it to you, sir, that you had a conversation with Mr Rogers in the terms that I have suggested to you and that you said to him the things that I have just put to you?
A. As I said before, I cannot recall that conversation.”

Events After the Fall

50 The Plaintiff said that, once he regained his feet, he was driven to the site meeting by one of his staff members (T53). After the site meeting, the staff member drove him to the physiotherapist and then the Plaintiff’s wife picked him up from there (T54.13). He experienced pain on the evening of 10 September 1998 in his knee and lower back (T54.21). The following day, he saw Dr Karmel, an associate of his usual doctor, Dr Favaloro (T54.27). X-rays were taken that day. The Plaintiff saw Dr Favaloro on 15 September 1998 and received a number of physiotherapy sessions. The pain level was quite high in the period between 10 and 15 September 1998 and he was taking pain killers (T54.55).

51 The Plaintiff stated that he carried on his business by telephone until the following week when he made a partial return to work (T55.1).

The Plaintiff’s Letters Concerning the Fall

52 On 11 September 1998, the Plaintiff dictated a letter to HRA concerning the fall. He was asked in cross-examination (T178.21):

“Q. Did you dictate any letters to your staff?
A. Yes.

Q. What were those letters about?
A. I really couldn't recall. I recall I was in bed and for me to actually take time off from work was extremely rare. I probably dictated letters I know I gave one to Toni Elsegood, a very short letter to send off to the agent.

Q. That very short letter concerned your wishing to know the public liability insurer of Denkas; is that right?
A. Yes.

Q. So you had resolved in your mind from that very day that you would sue for damages; is that right?
A. I knew that the incident was significant. I was lying in bed in extreme pain with the knee swollen up. I knew that the recovery process would not be quick, and I was you know, I'm an engineer. I tend to cover bases. It may have been something that was not required, but I knew that while it was fresh in my mind I should just make a notation of it.”

53 The letter (part Exhibit D) stated:

“Re: Public Liability - 35-37 Pde, Engadine
Mr David Gaskell had an accident in the men’s bathroom of above property at 1.25 pm 10/9/98 and has serious damage to his knee.
Please provide provider for Public Liability.”

54 In a facsimile sent by an employee of the Plaintiff to HRA on 30 September 1998, the following was said (part Exhibit D):

“Re: Public Liability - 35-37 Pde, Engadine
We wrote to you on the 11/9/98 and requested you advise us of the provider for Public Liability regarding David Gaskell’s accident on the 10/9/98 1.25 pm in men’s bathroom at above address. Toni Elsegood spoke to John on the 23/9/98 at 1.36 pm and he informed me that we would be receiving a letter with this information. As to date this has not happened. I also in formed [sic] him of the banging pipes (very loud noise) with in [sic] the building. He informed me that the plumber would be coming out to check. This has not happened either.
Could someone please get back to me this week regarding the above information required.”

55 In March 2000, the Plaintiff was involved in another incident, this time with a motor falling off its mounting onto his left leg. The Plaintiff had been working on the motor in his garage at home. He subsequently visited a physiotherapist where it was noted that he was suffering increased pain which had not settled down (T180.20 – 182.35).

56 The Plaintiff visited a physiotherapist for a back complaint in July 2000. This back complaint appears to be unrelated to the accident of 10 September 1998.

57 The Plaintiff also complained of an injury to his foot (T49.29). No evidence was presented to relate any foot injury to the accident. I am not satisfied that any foot injury is related to the accident of 10 September 1998.

The Plaintiff’s Physical Activities Before September 1998

58 The Plaintiff said that he had engaged in a range of outdoor activities and forms of exercise prior to his 1983 accident. Following the 1987 operation relating to the 1983 accident, the Plaintiff said that he did not return to recreational running (T21.47). However, his activities after 1987 included bicycle riding, car racing, surfing (both using flippers and with a wave ski) and, in particular, bush walking (T21.54). He recounted his bush walking activities prior to September 1998 including the carrying of a heavy backpack (T22). Bush walking involved journeys on both rough and smooth tracks (T22.31). The Plaintiff said that he would regularly undertake 14 kilometre bicycle trips between his home and Waterfall (T23.1). He said that, as at September 1998, he planned to undertake a bush walk on the Six Foot Track between Katoomba and Jenolan Caves, a 42 kilometre journey (T23.40). He said that, following his fall on 10 September 1998, he did not undertake this walk.

59 It was the Plaintiff’s evidence in chief that, until the fall in September 1998, he assisted with household duties on a regular basis including vacuuming and floor sweeping of the family home (T28). He said that he would occasionally perform mopping and window cleaning and dishwashing (T28-29). He estimated the period during which he carried out these tasks prior to September 1998 as being about one-and-a-half to two hours per week (T30.31).

60 The Plaintiff said that he had a “bit of a passion” for cars and that he serviced the family vehicles and raced some vehicles, generally open-wheel buggies built on a Volkswagen base used for off-road racing (T29). The buggies were manual vehicles requiring clutch operation with gear changes undertaken during races (T30.1). The Plaintiff said that, prior to 10 September 1998, he was physically capable of manual gear changes in the context of racing these off-road vehicles (T30.6).

61 On 24 September 1998, the Plaintiff once again saw Dr Wilding, who had operated upon his left knee in 1983 and 1987 (T55.17). The Plaintiff stated that his pain levels reduced but continued at a lower level (T55.31). With respect to mobility, the Plaintiff stated that he was using crutches for a short time and there was short-term improvement in his mobility, but restriction in movement continued (T55.40). He noticed difficulty with walking, descending stairs, climbing ladders and kneeling (T55.54). He said that his left knee felt unsteady and was weaker following the September 1998 fall (T57.40). He said that he attempted a short bush walk about one year after the September 1998 fall using a light backpack. He took an extremely long time to complete the walk and felt severe pain in the leg as a consequence of the walk (T58.19). As a result, he felt that his hiking days were completely over (T58.13).

62 The Plaintiff stated that he had used a TENS machine on his left knee (T59.7). In August 1999, he was referred to Dr Rowden, Joint Replacement Specialist, who recommended a left-knee replacement (T59.42). The Plaintiff stated that he had not undertaken the knee replacement because of cost and the time required to remain away from work, but that he would do so if time became available and he received money to cover his wages (T59.53). He stated that he used Osteoeze, a non-prescription medication, which he purchased through pharmacies for about $26.00 a packet (T60.36).

63 The Plaintiff stated that he had no prior problems with his back before September 1998, but that he noticed some difficulty with his lower right back when he lifted weights. He stated that he received physiotherapy for his back (T60.53-61.16). He stated that he had some problems with his ankle for which he had not sought any specific treatment (T61.31).

The Plaintiff’s Employment After 10 September 1998

64 On about 15 January 2001, the Plaintiff ceased trading as David Gaskell & Associates. He did not work again until August 2001.

65 On 27 August 2001, the Plaintiff commenced employment as a senior engineer (water and environment) with Connell Wagner Pty Limited (“Connell Wagner”) for an annual salary of $85,000.00 (Exhibit 9). Following a remuneration review, the Plaintiff’s total remuneration increased to $88,250.00 per annum from 1 July 2002 with a further increase to $91,000.00 from 6 January 2003 (Exhibit 11). On 10 March 2003, the Plaintiff gave notice of his resignation from his position of Senior Project Manager at Connell Wagner with his last day of employment to be 4 April 2003 (Exhibit 11). Documents which were tendered in evidence concerning the Plaintiff’s employment with Connell Wagner did not indicate that he experienced physical difficulties in the performance of his duties as a result of any injury or disability.

66 On about 14 April 2003, the Plaintiff commenced employment as a principal engineer with Maunsell Australia Pty Limited (“Maunsell”). His annual remuneration was $120,00.00 gross inclusive of superannuation. The Plaintiff remained in that employment until 2 June 2004 when his employer terminated his services with one month’s notice (Exhibit H). Again, documents which were tendered in evidence concerning the Plaintiff’s employment with Maunsell do not indicate that he experienced physical difficulties in the performance of his duties as a result of any injury or disability (Exhibit H).

67 On 13 July 2004, the Plaintiff commenced employment as a consulting engineer with Hyder Consulting Pty Limited (“Hyder”) at North Sydney. Following a salary review, his total salary package from 1 April 2005 was $125,000.00 (Exhibit J). The Plaintiff remained in this employment at the time of the hearing before me.

The Plaintiff’s Case Concerning Prior Observations of Water Pooling and Complaints About that Pooling

68 A significant issue in the proceedings concerns the Plaintiff’s prior knowledge of water pooling on the floor of the men’s toilet and action taken by him, if any, to bring such pooling to the attention of others. This question bears upon the liability of Denkas and HRA and has significance to the assessment of the credibility and reliability of the Plaintiff. It is necessary to refer in some detail to events prior to the hearing and the manner in which the Plaintiff’s evidence unfolded at the hearing on these issues.

69 Following the commencement of the proceedings on 7 September 2001, the solicitors for HRA sought further and better particulars from the Plaintiff’s solicitors by letter dated 29 October 2001 (Exhibit 28). The request for particulars included the following question:

“12. With respect of paragraph 15 of the Statement of Claim;


(i) What was the cause of the water pooling under and on the tiled floor near the urinal?

(ii) When was the Plaintiff first aware of the water pooling under and on the tiled floor near the urinal?

…

(iv) Is the plaintiff aware of any prior notice being given to our client of water pooling on the floor of the men’s toilets, either on the day of the Plaintiff’s fall or previous? If so, who gave this notice and to whom?”

70 By letter dated 11 March 2002, the Plaintiff‘s then solicitors (BE McCann & Co) replied in the following terms (Exhibit 28):

“12.(i) The Plaintiff was subsequent to the incident advised by the Plumber contracted by Denkas Pty. Limited to conduct repairs that the cause of the water pooling under and onto the tiled floor near the urinal was a leaking water pipe under the tiles . The Plaintiff was furthermore informed that the plumbers contracted to Denkas had been aware of the problem prior to the 10th September 1998 and had so informed Denkas Pty Limited of their concern.

(ii) The plaintiff was unaware of water pooling prior to the incident on 10th September, 1998 though was aware that there was water on the tiled floor near the urinals from time to time.

(iii) The plaintiff does not know.

(iv) Yes, ‘Bruce’ of Engadine Plumbing to ‘Mark’.”

71 On 28 March 2003, the solicitors for Denkas sought the following particulars (Exhibit 30):

“2. In respect of warnings alleged at paragraph 19(b) of the Ordinary Statement of Claim:
(a) By whom were the warnings made?

(b) To whom were the warnings made?


(c) When was each warning made?

(d) What was the substance of each warning made?

(e) If any of the warnings were in writing, please provide copies.

(f) If the plaintiff kept any written record of any warning, please provide a copy.”

72 By letter dated 26 August 2003, the Plaintiff’s solicitors (GH Healey & Co) provided the following response (Exhibit 30):

2(a) The plaintiff advises that the warnings were made by a man whose first name is Bruce , last name currently unknown. Bruce was the maintenance contractor/plumber contracted to Denkas Building Services P/L.

(b) The warnings were made to the First Defendant.

(c) Approximately one year prior to 10 September 1998.

(d) The Plaintiff instructs that he was told that Mark (from Denkas Building Services P/L) had been told by either Bruce or Bill Stainer that he had been warned about the situation.

(e) A subpoena and notice to produce will be issued against the First Defendant for the provision of any such written material. Please confirm, however, that you will voluntarily provide copies of all repair quotes within seven (7) days.

(f) The plaintiff has no such documentation.”

73 By letter dated 22 September 2003, the new solicitors for HRA sought the following particulars from the Plaintiff’s solicitors (Exhibit 29):

“We note from our predecessor’s file that previous requests have been made however we renew the Third Defendant’s request for you to provide the following:

1. A copy of the lease agreement as between your client’s company and the First/Second Defendants.

2. Details of the plumber identified by your client as having knowledge of the defect in the premises prior to your client’s alleged injury.

3. The facts, matters or circumstances upon which your client alleges that our client was aware of the alleged defect prior to your client’s fall on 10 September 1998.”

74 By letter dated 17 November 2003, the Plaintiff’s solicitors responded in the following terms (Exhibit 29):

“With respect to items 1, 2 and 3, we say as follows -

(1) The writer understands that the lease agreement would have been held by your client. In any event, a further copy is now provided.

(2) Engadine Plumbing, Mr Bill Stainer.

(3) Whilst this is a matter of evidence, we are instructed by the Plaintiff that -

(i) the warnings were made by a man, whose first name is ‘Bruce’, (last name currently unknown). Bruce was apparently the maintenance contractor contracted to Denkas Building Services P/L.

(ii) He was told that ‘Mark’ (last name currently unknown) from Denkas Building Services Pty Limited had been warned by either Bruce or Bill Stainer about the situation.”

75 In opening the Plaintiff’s case on 18 April 2005, Mr Elliott did not submit that there had been any complaint made by the Plaintiff to any person about alleged pooling in the men’s toilet prior to 10 September 1998. Nor did he refer to any prior observations of pooling by the Plaintiff in that area. Counsel referred shortly to the Plaintiff’s account of the fall on 10 September 1998 (T1.35-44). Counsel for the Plaintiff said (T2.10-17):

“He will also tell you that in August 2000 he saw Engadine Plumbing attending to some repairs in the bathroom and he paid close attention to what was going on and what he saw was a plumber remove the hob from the urinal and replace a copper pipe which the plaintiff could see was leaking. That pipe, the plaintiff will tell you, was a high pressure pipe and following that repair the urinal no longer leaked.”

76 The Plaintiff was called as the first witness in the case. In evidence in chief, he was asked (T39.36):

“ELLIOTT: Q. Did you at any time prior to your accident in September 1998 have a conversation with anybody on behalf of the agent or the owners about the condition of the premises?
A. Yes.

Q. Do you know when it was that you had that conversation or conversations?
A. I can't recall.

Q. Do you know who it was that you had the conversation or the conversations with?
A. I believe the conversation was with Mr Rogers, again, when he was showing people through the building.

Q. Mr Rogers is a representative of the agent?
A. Yes.”

77 Counsel for HRA objected at that point because this evidence took him by surprise. After submissions, I allowed the Plaintiff’s counsel to adduce further evidence from him. The Plaintiff was asked (T41.5-37):

“ELLIOTT: Q. Why do you believe that, sir, as opposed to know it?
A. I know it was either Mr Harding or Mr Rogers. I can't recall which of the two it was. I know when he identified himself he was one of the two principals, as opposed to one of his other agents.

Q. Doing the best you can, what was the conversation that you had with him, insofar as you can using the words that were used on the day?
A. I actually physically took him into the men's toilets.

Q. Sorry, before that happened, sir. I really was looking at the introductory issue at this stage an identification introduction?
A. I probably walked up as far as I can recall, I said, ‘Excuse me, who are you?’ They identified themselves as I believe it was Mr Rogers. He was showing some prospective tenant through the building at the time. I recall that he introduced that person to me as well. I have no recollection as to who that was.

We then had a short conversation about the building. I was probably at that time the longest continuous tenant in the building and so the agent was trying to demonstrate that I had been there and I had been satisfied with the building, and that was the nature, initially, of the conversation.

Q. Did questions of maintenance and the condition of the premises come up in the conversation?
A. It did. I raised the question.”

78 Further objection was taken by counsel for HRA and the Plaintiff’s counsel took the opportunity during the luncheon adjournment to take instructions from the Plaintiff on this question.

79 Upon resumption, I raised the issue with counsel for the Plaintiff (T43.15-29):

“HIS HONOUR: What happened to the objection that was being debated at lunchtime? Can that be put to one side for the moment?

ELLIOTT: That is not going to be a problem, your Honour. With respect to the question I asked, the plaintiff and I were at cross purposes and the conversation which I was going to discuss was after the event. I don't think that …

HIS HONOUR: That can be put to one side.

ELLIOTT: I don't think it goes anywhere. There are some related questions I wish to ask but they don't go to any conversations as such.”

80 When the Plaintiff resumed his evidence in chief, he was asked by his counsel (T44.51-58):

“Q. Sir, before lunch there were some objections. I asked you about conversations I hadn't made this clear that I understood were directed to situations passing between you and the agent and the representatives of the owners before your accident. Did you understand my questions to be directed to a situation after your accident?
A. Yes.”

81 Counsel for the Plaintiff then moved to questions about the Plaintiff’s observations of any system for cleaning the bathrooms in the premises prior to September 1998.

82 Mr Elliott asked the Plaintiff a general question concerning reporting of defects by him (T46.35-43):

“Q. Did you ever have occasion to report any defects in the building to the lessors or their representatives before your accident?
A. Not in writing.

Q. Did you ever do it by any other means?
A. I probably did refer to matters when talking to the agent on other occasions. I can't specifically recall what I said, though.”

83 The Plaintiff’s examination in chief was completed late in the day on 18 April 2005 and cross-examination commenced by counsel for Denkas. Because of a proposed amendment to the Defence of Denkas (which is no longer relevant), the Plaintiff had leave to inspect certain documents overnight which were referable to that amendment and to confer with his legal representatives concerning that topic (T80.46).

84 At the commencement of the second day (19 April 2005), counsel for the Plaintiff informed the Court that in the course of the Plaintiff’s consideration of documents overnight relevant to the amendment, he had come across a file. Mr Elliott said (T82.22-25):

“Following inspection overnight, the plaintiff has uncovered a file and I wish to take him through some documents from that file. It would be my application, your Honour, to reopen in chief.”

85 There was no opposition to the Plaintiff having leave to re-open his examination in chief to give evidence concerning documents contained on a file. During the course of the further examination in chief, counsel for the Plaintiff informed the Court that his client had recalled conversations said to have occurred before 10 September 1998 relating to the pooling of water and that this recollection had been triggered by the Plaintiff’s examination of documents overnight (T88). Counsel said that the Plaintiff was to allege that he met Mr Mark Kasunic with Mr Rogers at the site in about May 1998, that Mr Kasunic was introduced as the owner, that he and Mr Kasunic went up onto the roof to look at the airconditioning plant and that, thereafter, the Plaintiff took Mr Kasunic to the men’s toilet on the first floor and pointed out the pooling of water to him (T90.91). Mr Gracie informed me that Mr Kasunic was one of the registered proprietors of Denkas (T93.26).

86 Counsel for Denkas and HRA objected to this evidence being adduced from the Plaintiff and submissions were made by reference to the letters providing further and better particulars (referred to above) which had not identified such a case, and to the evidence of the Plaintiff the previous day which had raised and discarded such a case. Towards the end of submissions, I said to counsel for the Plaintiff (T102.38):

HIS HONOUR: … Your client is raising this not just at the 11th hour but at the 12th hour and you can see the issues it's raising with respect to him.

ELLIOTT: Indeed, your Honour. He is going to have to face all of that.”

87 I ruled that the Plaintiff ought be allowed to adduce this evidence. In giving short reasons for this ruling, I said (T102.48):

“These proceedings have been on foot since 2001. Particulars have been sought and provided in March 2002 to the solicitors for the third defendant and August 2003 to the solicitors for the first defendant with respect to the question of whether any warning was given to either of the defendants with respect to the pooling of water on the floor of the toilet.

The answers that were given in particulars did not indicate that there had been any warning given by the plaintiff personally to anyone in relation to those matters or that they did assert, on a type of hearsay basis, that the defendants were said to be on notice of this problem.”

88 From that time, it was apparent that this issue was to be a most significant one in the case touching upon the credibility and reliability of the Plaintiff and impacting directly upon his ability to establish liability against Denkas and HRA.

89 Upon resumption of his examination in chief, the Plaintiff was taken to a letter dated 27 May 1998 on Hydrofix letterhead sent by facsimile to HRA. The letter said (part Exhibit F):

“We are writing to you with regards to the above properties [sic] air conditioning, which is not working and has not been working for the past several days.
Unit has structurally failed and currently is placing higher than designed loads on the existing roof structure.
It cannot be safely operated in its current condition without replacement of structural support beams.
Please arrange for urgent repairs. Alternatively we could repair the support beams for a sum of $1,240.00 .
We feel this is a matter of urgency for your attention.”

90 Mr Elliott then asked the Plaintiff (T106.21-54):

“Q. Turning to the letter on the Hydrofix Civil Contractors facsimile header sheet of 27 May 1998
A. Yes.

Q. Do you recall the events that gave rise to that letter?
A. Yes, I do.

Q. Would you please tell us, sir, what those events were?
A. We were initially requested by the agent or the owner to inspect the airconditioning plant on the roof of the building which we did do and it was with respect to the support of the main airconditioning plant which was rusted and subsequent to that we then sent this letter and gave them a quotation to repair that work. At or about the time of sending this I met with the owner, Mark, or one of the owners, Mark, and we inspected the roof together.

Q. Was anybody else present?
A. There was probably a third person present but I believe it was a worker from Mark.

Q. Right.
A. And while we were discussing the airconditioning, I took him from the roof down to the bathroom and specifically showed him the water on the floor in the bathroom.

Q. When you took Mark down to the bathroom and showed him the water, what was visible on the floor that day?
A. There was a small pool of water on the floor between the drain and the urinal.”

91 Counsel for the Plaintiff returned to the topic soon after (T107.14):

“ELLIOTT: Q. Doing the best you can, what was it that you said and did with Mark in the bathroom?
A. I particularly took him down there to look at the water to complain.

Q. Just tell us what happened, sir?
A. What happened I took him down and said, ‘Mark, I want you to have a look at something else while we're here.’ We went downstairs and walked into the bathroom and the pool of water was on the floor and I said, ‘This is always here. We need to, you know, fix it.’

Q. What did he say, if anything?
A. I cannot recall any positive answer.

Q. Do you recall a negative answer or any answer at all?
A. It was probably something like, ‘I'll look into it.’

Q. Did anything else occur in respect of that trip to the bathroom with Mark?
A. On a separate occasion I had also taken the agent to the same area.

CATSANOS: I object to this. …

HIS HONOUR: You should seek to adduce this evidence without leading and try to identify, with as much precision as possible, when it occurred.

ELLIOTT: Q. Sir, I think you said something about another occasion with the agent?
A. Yes.

Q. Who was the agent?
A. I cannot recall whether it was Peter Rogers or John Harding, but it was on an occasion when they were inspecting the property with a potential new rentee, a person to rent the property. I can recall whereabouts in the building that we actually first met.

Q. Where was that, sir?
A. That was immediately outside our office.

Q. Which office was that, sir, because you've had suite 6 on two occasions?
A. Yes.

Q. And suite 4.
A. Right. This was outside suite 4.

Q. When did you first take up residence in suite 4?
A. We first took up residence in suite 4 in about April 1998.

Q. Was that the only time you were in occupation of suite 4?
A. Yes.

Q. You continued in suite 4 until you vacated the building?
A. No, we continued in suite 4 until the new owner took over the building and at about the time that the new owner took over the building, he asked us to move to another suite.

Q. By reference to the fall, which I would ask you to assume was 10 September 1998 …
A. Yes.

Q. … can you tell us by reference to the fall when this conversation with the agent took place?
A. I've thought hard about this question

Q. Leaving that to one side, sir, can you tell us?
A. Okay. Yes, I can tell you the conversation took place prior to the fall.

Q. Do you know when prior to the fall?
A. Probably about the same time that I had taken Mark down which is about May, or early 1998.”

92 Counsel for the Plaintiff returned to the alleged discussion between the Plaintiff and the agent concerning the pooling (T109.51):

“Q. You told us about the tenant, when you met the agent and the prospective tenant, and you have done your best to fix it in time. Is there anything else that has occurred to you which would help us to fix this in time or to identify the occasion?
A. The closeness to the occurrence of showing the owner Mark is my only recollection.

Q. Sir, what happened on that second occasion?
A. I believe the agent said that he would take it up with the owner.

Q. That might be the completion of the matter, but what actually happened leading up to that remark or indication from the agent?
A. I took him to the bathroom and said, ‘Here's a pool of water. It's often there. Can it be fixed?’ And he said something along the lines of, ‘I will address that with the owner’.”

93 The further examination in chief of the Plaintiff, by leave, concluded soon after. It will be seen then that the Plaintiff had changed his position dramatically since his evidence on the previous day and the further and better particulars preceding the hearing. His evidence on the second day of the trial alleged specific occasions on which he informed Mr Rogers or Mr Harding from HRA of the alleged pooling problem and a separate occasion when, having met Mr Kasunic in the company of Mr Rogers, he took Mr Kasunic to the men’s toilet and pointed out the pooling problem to him. For the first time, on the second day of the trial, the Plaintiff was alleging direct communication by him to representatives of Denkas and HRA prior to 10 September 1998 that a pooling problem was said to exist on the floor of the men’s toilet and that this problem required attention.

94 The Plaintiff was subjected to substantial challenge under cross-examination concerning this account.

95 Counsel for Denkas asked the Plaintiff (T221.36):

“Q. Sir, you assert in your case this week that you had a conversation with Mr Kasunic some time around May of 1998, don't you?
A. Yes.

Q. You understood then that he may have been the owner of the building in that sense; is that right?
A. That's how he was identified to us.

Q. You told him certain words in relation to the state of the premises, did you not?
A. Yes.

Q. You, in fact, warned him about them, didn't you?
A. I showed him, physically showed him, water on the floor.

Q. Had you forgotten that completely until last Monday night, that conversation?
A. No. As I have said before, I had, in briefings prior to the case, identified that particular incident but when questioned by my counsel I was unable to put a time on it. But I particularly related the incident where we'd been up I mean, it is quite an easy thing to remember where we'd actually gone up physically onto the roof probably the only time I've ever been to the roof with the owner and at the time that I had the owner, I then took the opportunity to actually show him this item.

Q. If it was easy to remember last Monday night, why wasn't it easy to remember when you armed your solicitors with instructions to answer the requests for particulars?
A. I was unaware of this particular document.

Q. But, sir, you just said it is easy to remember it's the first time you've been up on the roof with the owner; certain facts and circumstances which make it come to mind.
A. I was.

Q. Why wasn't it easy to remember that when you solemnly provided information to your solicitors so as to cause them to write a letter on your behalf in response to that specific question?
A. This letter was written by somebody else.

Q. It was written with your instructions, wasn't it?
A. It may have been written with information from one of the men who worked for me who actually worked out the quote.

Q. Sir, you have actually sworn an affidavit in relation to these particulars. You are well aware of that, aren't you?
A. I certainly had seen this document before, but I hadn't written it.

Q. It is a bit more sophisticated than that, sir. You have sworn an affidavit in this court to say that you were the one who provided the material within the particulars for the purpose of this case?
A. Well, I the words here actually, as I read it, ‘The unit has structurally failed and has currently placed higher than designated loads on the roof structure.’ That is certainly in my words. I don't recall actually working out the cost for the …

Q. Let me read out your affidavit, sir:

‘I confirm that I have attended upon my solicitors to provide all information relating to the defendants' solicitors requests for further and better particulars.’

Was that a false statement in an affidavit?
A. I had given them everything that I was aware of at that time.”

96 Shortly after, Mr Gracie asked the Plaintiff (T224.54):

“Q. Sir, I want to suggest to you that what is in fact happening here in this case during this week is that you are trying to reconstruct something about which you have absolutely no accurate recollection?
A. Well, maybe you could ask my solicitor whether I accurately briefed him on this event but was unable to give the date prior to getting up into the witness box.”

No evidence was given by Mr Healey or any other solicitor for the Plaintiff explaining the course of events whereby instructions were obtained from him generally, or specifically for the purpose of replying to requests for further and better particulars.

97 The Plaintiff said that he did not see any pooling of water on the floor when he entered the toilet on 10 September 1998 even though he must have stepped over it in the relatively narrow space leading up to the urinal (T228.16). He said that the puddle was somewhere between four and six inches (100-150 mm) in size (T228.45). He observed the pooling on the floor after his fall (T232.50).

98 The Plaintiff agreed that his letter of 11 and 30 September 1998 made no reference to water on the floor of the men’s toilet (T233.24). Counsel for Denkas put to the Plaintiff that he had written to the agents on a number of occasions raising defects or problems in the premises (T234.24):

“Q. Would you agree with this, sir, that whether they are dictated by you or whether they were typed by you or signed by you, you had no inhibition in writing to the agents about small peculiar things like dripping taps and other matters; is that right?
A. We had been particular I mean, this all these letters are after the event.

Q. So are the two letters that you have just been asked questions about, sir.
A. Yes.”

99 By reference to a folder of documents (Exhibit F), the Plaintiff agreed that there were a number of examples of problems with the leased premises which he took up in writing with HRA in 1994, 1995, 1997, 1998 and 1999 (T105).

100 Counsel for HRA cross-examined the Plaintiff concerning his assertion that he had complained to the agent concerning the pooling of water on the men’s toilet floor. Given his most recent evidence asserting that complaints have been made by him about pooling prior to the accident, the Plaintiff was asked (T326.19):

“As Callinan J points out in his reasons in Ghantous , persons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course, some allowance must be made for inadvertence. Certain dangers may not readily be perceived because of inadequate lighting or the nature of the danger (as in Webb v South Australia ), or the surrounding area (as in Buckle , where the hole was concealed by grass). In such circumstances, there may be a foreseeable risk of harm even to persons taking reasonable care for their own safety. These hazards will include dangers in the nature of a ‘trap’ or, as Jordan CJ put it, ‘of a kind calling for some protection or warning’. In Romeo , Toohey and Gummow JJ noted in a different context that the care to be expected of members of the public is related to the obviousness of the danger. Kirby J pointed out in the same case that even an occupier of premises ‘is generally entitled to assume that most entrants will take reasonable care for their own safety’. Each case will, of course, turn on its own facts.”

233 In the present case, it seems to me that any liquid on the floor on 10 September 1998 ought to have been obvious to the Plaintiff.

234 Any factual enquiry as to whether the toilet floor constituted a dangerous defect and/or whether it was unreasonable not to repair it should have regard to the history of safe usage. Nothing in the history of the floor of the men’s toilet suggested any hidden trap or dangerous defect in the sense discussed in Jones v Bartlett: Sakoua v Williams at paragraph 30. This was not a case where the landlord had knowledge or suspicion that made it unreasonable to fail to upgrade the floor or even to call in an expert for advice: Jones v Bartlett at 220 [188]; Sakoua v Williams at paragraph 31.

235 The alteration of building standards since the premises were built did not in itself impose a duty to upgrade the premises. Nor did such changes in standards establish in themselves that the men’s toilet floor was defective in the sense of putting the lessor in breach of the duty of care within the scope recognised in Jones v Bartlett: Sakoua v Williams at paragraph 32.

236 Negligence is not established by pointing out that little expenditure might have been required to make the men’s toilet floor safer. That is not the test of unreasonableness, especially in a context where any expenditure of this nature might be expected to find itself reflected in a higher rental: Sakoua v Williams at paragraph 34.

Summary of Findings on Liability

237 I have set out my factual findings earlier in the judgment. Denkas and HRA were unaware of the alleged defect and could not reasonably have been aware of it.

238 Applying the test of reasonableness referred to by Gleeson CJ in Jones v Bartlett, I am not satisfied that the Plaintiff has demonstrated any breach of duty on the part of Denkas. The claim in negligence against Denkas ought be dismissed.

239 I am not satisfied that the Plaintiff has demonstrated any breach of contract on the part of Denkas.

240 I am not satisfied that the Plaintiff has demonstrated liability in tort or contract on the part of HRA.

Assessment of Damages

241 It is appropriate that I address the question of damages in the event that an appeal is brought with respect to my findings concerning liability and any of those findings are overturned. I will shortly consider the issue of damages.

242 The most significant area of injury sustained by the Plaintiff relates to his left knee. The Plaintiff gave evidence of back pain and ankle pain following the fall. I accept that some back soreness and ankle soreness resulted from the fall. However, I am not satisfied on all the evidence, including that of the Plaintiff and Dr Mahony (T366.20), that the back and ankle gave rise to anything more than transient and passing pain. It is the left knee which forms the central part of the Plaintiff’s claim for damages.

243 I have referred earlier in this judgment to the Plaintiff’s 1983 accident and 1987 operation affecting the left knee. Although the Plaintiff said in evidence in chief that, in substance, the difficulties he had been experiencing with his left knee had settled in the 1990s, he admitted under cross-examination that he received physiotherapy in September and November 1996 complaining of pain in the left knee following prolonged standing and sitting for longer than an hour (T240-241).

244 X-rays of the Plaintiff’s left knee taken on 11 September 1998 revealed moderate narrowing of the medial compartment due to osteoarthritic change. There was osteophytic lipping of the lateral compartment and degenerative change in the patella femoral joint (report of Dr Wilding, 6 March 2003, Exhibit O, page 3).

245 Dr Wilding reported that, by May 1987, there was already evidence of degenerative change in the Plaintiff’s left knee (Exhibit O, page 4). The 1983 injury resulted in the development of premature degenerative change in the knee. Dr Wilding commented as follows with respect to the fall in September 1998 (Exhibit O, page 4):

“When the fall occurred Mr Gaskell already had degenerative change in the left knee and even if the fall had not occurred the osteoarthritic process would have continued to progress and he would ultimately have required a total knee replacement.
However the fall aggravated the underlying degenerative condition and accelerated the progression of symptoms.
By what time frame the progression of symptoms was accelerated is difficult to state but on the balance of probabilities I would estimate that his symptoms were probably accelerated anywhere between 2-4 years.
I can be no more specific than that.”

246 The radiologist’s report with respect to the x-ray of the Plaintiff’s left knee taken on 11 September 1998 stated as follows (Exhibit 15):

“Slight effusion in the joint space noted. There are gross osteoarthritic changes in the knee joint and patellofemoral [sic] articulation. small [sic] corticated fragments are present at the medial and lateral margins of the joint which are probably extra synovial. No convincing recent injury or other abnormality is seen.”

247 The evidence points to an aggravation of a pre-existing injury to the left knee which had already demonstrated significant degenerative change. On the medical evidence, prior to the fall in September 1998, the Plaintiff was likely to require a left-knee replacement at some time. The requirement for physiotherapy of the left knee on more than one occasion in 1996 points to ongoing difficulties being experienced by the Plaintiff before September 1998. The Plaintiff’s pre-existing left-knee injury and its degenerative state must be taken into account: Wilson v Peisley (1975) 50 ALJR 207 at 209, 212. The medical evidence in this case demonstrates, in accordance with the principles in Watts v Rake (1960) 108 CLR 158 at 159, that the Plaintiff’s left knee was in an advanced degenerative state flowing from the 1983 accident and that further treatment, including knee replacement was inevitable without the September 1998 fall.

248 I accept that the Plaintiff undertook a range of outdoor activities prior to September 1998. By and large, he has continued these activities although with reduced levels of exertion. I accept that the Plaintiff’s ability to engage in longer bush walks was reduced as a result of the September 1998 fall, but I consider that difficulties of this type were inevitable in any event. The Plaintiff’s left knee had experienced significant degenerative change and a knee replacement, according to Dr Wilding, was inevitable. The reduction in the Plaintiff’s ability to undertake a range of outdoor activities must be viewed in this light.

249 It is noteworthy that the Plaintiff was able to undertake a range of activities surrounding car racing, including climbing in and out of buggies and pushing vehicles. The images depicted in the video tape (Exhibit 17) demonstrate a range of movement on the Plaintiff’s part in March 2005 and demonstrates a capacity to engage in vigorous activities of this type if the Plaintiff so chooses. It is true that the images of the Plaintiff in the video tape show some limping of the left leg. This is understandable. The Plaintiff had experienced a significant knee injury more than 20 years ago which had already undergone significant degenerative change. I accept that the fall of September 1998 contributed further to the Plaintiff’s limp. There is an increased level of pain which the Plaintiff experiences when carrying out tasks involving exertion of the left leg. However, the Plaintiff is able to undertake these tasks. I do not accept that the Plaintiff is unable to perform a range of domestic tasks including vacuuming and lawn mowing. There is a broad similarity between those tasks and some of the tasks visible on the video tape, including pushing a motor vehicle.

250 With respect to general damages, counsel for the Plaintiff submitted that a significant award of general damages ought be made in this case. It was submitted that there was significant pain and suffering on the Plaintiff’s part and significant interference with his ability to perform a range of functions affecting his work and recreational activities.

251 Counsel for HRA submitted that the Plaintiff at best makes out a claim for a moderate aggravation of pre-existing degenerative condition of the left knee giving rise to modest general damages of no more than $10,000.00. Counsel for Denkas submitted that general damages would be in the vicinity of $5,000.00 only, or nil if the de minimis principle was applied.

252 If the Plaintiff had established liability in this case, I consider that an award of general damages in the sum of $30,000.00 ought to have been made. This sum would reflect the level of pain and suffering and interference with the Plaintiff’s ability to undertake a range of activities. However, I accept the submission of the Defendants that the Plaintiff’s injury ought be characterised as a moderate aggravation of a pre-existing degenerative condition of the knee. The award of general damages would reflect that finding.

253 With respect to past economic loss, counsel for the Plaintiff submitted that the sum of $75,000.00 ought be awarded to the Plaintiff (T689.25). Although it was acknowledged that the evidence revealed a level of loss in the Plaintiff’s business between 1993 and 2000, it was submitted that a finding was open on the evidence that the Plaintiff had sustained economic loss resulting from his fall of September 1998. It was submitted that he had reduced mobility on work sites which he was required to visit as an engineer and that this restricted his ability to earn income. Although the Plaintiff has moved into well-paid positions in the engineering field since 2001, it was submitted on his behalf that identifiable past economic loss ought be found.

254 Counsel for Denkas and HRA submitted that the Plaintiff had not established any basis for an award for past economic loss. It was submitted that the evidence revealed a history of losses sustained in the Plaintiff’s business between 1993 and 1998 with the position only improving in 2000. Thereafter, the Plaintiff sold his business and took up employment in the engineering field receiving significant income in the positions which he has occupied. It was submitted for the Defendants that there is no evidence which ought satisfy the Court, on the balance of probabilities, that the Plaintiff suffered economic loss as a result of the fall in September 1998. Although the Plaintiff asserted that he experienced difficulty in visiting work sites after the fall, the evidence does not reveal any loss flowing from such alleged difficulty.

255 The Defendants’ submissions have considerable force with respect to past economic loss. I accept that the Plaintiff may have experienced some greater difficulty in visiting work sites, especially on rough ground, following the fall. The difficulty, however, is translating that difficulty into any reliable figure by way of past economic loss. The Plaintiff’s business was running at a loss before the fall and had done so for several years. He cannot point to a further loss on the part of the business following the fall of September 1998. Indeed, on the evidence, the financial position of the business improved in 2000. There is nothing in the documentary evidence provided from the Plaintiff’s employers since 2000, namely Connell Wagner, Maunsell and Hyder, which indicates any practical difficulty experienced by him in the performance of his duties with those employers. Accordingly, the only evidence on this issue is the evidence of the Plaintiff.

256 Doing the best I can with the available evidence, I would allow a relatively modest sum for past economic loss. On the evidence, any award of damages under this head would not exceed $15,000.00.

257 As to future economic loss, counsel for the Plaintiff submitted that the sum of $50,000.00 should be allowed for future economic loss (T689.25). The submission in support of this figure pointed to the types of difficulties which I have referred to with respect to past economic loss, namely reduced mobility at work sites. Further, it was submitted that the Plaintiff will be off work for a period of time when any knee replacement operation takes place.

258 Counsel for Denkas and HRA submitted that no award should be made for future economic loss. It was submitted that the Plaintiff was in good employment as an engineer receiving a significant salary. There was nothing in the documentary evidence emanating from his employers since 2001 pointing to any difficulties with his employment which may be referable to the September 1998 fall. It was submitted that the Plaintiff would have required knee replacement in any event and that this aspect does not assist the Plaintiff on the question of future economic loss.

259 Once again, doing the best I can, I do not consider that any significant award of damages by way of future economic loss would have been made in this case if liability had been established. The Plaintiff has a reduced level of mobility arising from the September 1998 fall. In one sense, this may have an effect upon the length of his expected working life. However, a knee replacement was inevitable at some point and this is the major factor which could affect the Plaintiff’s future employment. That operation was required in any event. If damages were to be awarded to the Plaintiff, I would make some allowance for future economic loss, but I would do so by way of a buffer in a sum not exceeding $30,000.00.

260 With respect to the claim for past and future care and assistance, counsel for the Plaintiff relies upon the evidence of the Plaintiff concerning his reduced capacity to perform domestic tasks including vacuuming, dishwashing, window cleaning and lawn mowing. It was the Plaintiff’s evidence that, prior to 10 September 1998, he spent a period of one-and-a-half to two hours per week undertaking some of these activities. It was submitted that an award of damages should make allowance for this claim and reliance was placed upon the report of Adrianne Howard (Exhibit Q).

261 Counsel for Denkas and HRA submitted that any award of damages in favour of the Plaintiff should make no allowance for alleged past and future care and assistance. Particular emphasis was placed upon the video-tape evidence depicting the ability of the Plaintiff to undertake a range of vigorous activities surrounding car racing. The Defendants submitted that if the Plaintiff was able to perform these activities, then the domestic activities to which reference has been made were well within his capacity.

262 On the evidence, I am not satisfied that any allowance ought be made in any award of damages for past and future care and assistance. The evidence on this issue emanates from the Plaintiff only. I accept the submission of the Defendants that the video tape demonstrates that, as at March 2005, the Plaintiff had a physical capacity to perform a range of vigorous activities. I am not satisfied, on the balance of probabilities that any award should be allowed under this head of damages.

263 With respect to out-of-pocket expenses, the parties have agreed that, if any award was to be made, a sum of $3,662.00 ought be allowed. This figure encompasses general practitioner treatment expenses ($251.00) and physiotherapy treatment expenses ($2,160.00), together with travel expenses with respect to the general practitioner ($9.00) and the physiotherapist ($1,242.00) (Exhibit V). If an award of damages had been made in the Plaintiff’s favour, I would have allowed this figure.

264 Counsel for the Plaintiff submitted that future out-of-pocket expenses ought include the cost of the knee replacement operation estimated at $21,550.00. I do not accept that this item ought be included in any award in the Plaintiff’s favour. The evidence indicates that this operation was required in any event and, at the highest, the fall in September 1998 accelerated the time when the operation may be needed. In these circumstances, I do not consider that this item ought be included in any damages awarded to the Plaintiff.

265 With respect to other future out-of-pocket expenses, I accept the submission of counsel for Denkas that any allowance for this item ought not exceed $5,000.00.

Contributory Negligence

266 If liability had been established, the question of contributory negligence would have arisen. It was the Plaintiff’s case that he was aware of the pooling problem but that, on 10 September 1998, he did not notice that the floor was wet. The Defendants contend that the Plaintiff did not notice the wet floor because he was not keeping a proper lookout. In my view, a finding of 30% contributory negligence would have been appropriate if this point had been reached in the case.

Conclusion

267 I am not satisfied that the Plaintiff has established liability on the part of Denkas or HRA. In these circumstances, there will be a verdict for the First and Third Defendants against the Plaintiff. I order the Plaintiff to pay the costs of the First and Third Defendants.

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