New South Wales District Court CITATION: Hilditch v Dhasmana & Ors [2009] NSWDC 27 HEARING DATE(S): 02/02/2009 - 04/02/2009 EX TEMPORE JUDGMENT DATE : 11 February 2009 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ Orders 1. Verdict for the defendant on the plaintiff's claim. 2. Verdict for the cross-defendant on the cross-claim. - DECISION: Further orders made in relation to costs on 18/02/2009 are as follows: 3. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis up to and including 28 November 2007 and on an indemnity basis thereafter. 4. The cross-defendant is to pay the defendant's costs of the cross-claim on an ordinary basis. 5. The plaintiff is to indemnify the cross-defendant in respect of the order for costs made against it. 6. The exhibits are returned. CATCHWORDS: Slip and Fall – Allegedly in bathroom of rented premises – Credit of plaintiff and witness – Liability as between owners and managing agent Carol Hilditch (Plaintiff) PARTIES: Paramtma Dhasmana (Defendant / Cross Claimant) Richard Walkom Linehans Real Estate Pty Ltd trading as Walkom Linehans Real Estate (Cross Defendant) FILE NUMBER(S): 141/07 Mr Cummings (Plaintiff) COUNSEL: Mr Sheldon (Defendant / Cross Claimant) Mr Priestley (Cross Defendant) Thomas Mitchell Solicitors (Plaintiff) SOLICITORS: Henry Davis York (Defendant / Cross Claimant) Thomson Playford (Cross Defendant) JUDGMENT 1 Carol Hilditch claimed that there were defects in the bathroom of the home unit at Adamstown that she rented from the defendant. She claimed that those defects caused her to slip on the wet tiled floor and injure her left leg. She claimed that the defendant was negligent in failing to respond to multiple complaints made by her and Mr Andonovski who also lived in the unit. Those complaints were said to have been made to the defendant's managing agent. The defendant cross-claimed against his managing agent seeking contribution or indemnity. 2 The issues to be determined were as follows: 1. The circumstances in which the plaintiff's injury occurred. 2. Whether any complaint made concerning the condition of the bathroom was made. 3. Whether the circumstances as described by the plaintiff involved a breach of duty of care on the part of the defendant. 4. Liability as between the defendant and the cross-defendant, and 5. The damages, if any, to be awarded to the plaintiff. Issue 1 – The circumstances of the injury 3 The plaintiff claimed that she was injured on 17 November 2005 when she ruptured the Achilles tendon in her left leg. She also claimed back injury, pain and shock and the development of a psychiatric or psychological condition. She claimed that the injury occurred when she slipped in the bathroom of the two-bedroom home unit in Adamstown that she occupied at the time and that she rented from the defendant. The rental of the property was managed under contract between the defendant and the cross-defendant. 4 The plaintiff's evidence concerning her fall was as follows. The floor was wet because there were leaks of water through ineffective seals around the shower screen and its door and cracks and gaps in the grout in the tiles surrounding the shower recess. This allowed the water to leak onto the bathroom floor in excessive quantities so that it was necessary to place up to three towels on the floor when taking a shower to soak up the water and to avoid slipping on the wet floor. 5 On 17 November 2005 this arrangement did not assist in preventing the plaintiff from slipping. On this occasion she stepped from the shower onto her right foot and then placed her left foot onto a wet towel. She heard a crack as her left foot slipped backwards on the towel. The plaintiff was unsure if her foot also struck the hob around the shower. 6 The plaintiff shared the unit with Mr Terry Andonovski for whom she is a carer. He at the time was seated in the lounge room of the unit. He said he heard the plaintiff scream while in the bathroom. The plaintiff made her way to the lounge room and told him of her injury. 7 Mr Andonovski supported the plaintiff's evidence concerning the condition of the bathroom and her evidence that she made her way from the bathroom to the lounge room after she was injured. He took her to John Hunter Hospital for treatment. 8 At John Hunter Hospital the plaintiff was treated by a triage nurse, Narelle Kesh. Ms Kesh was a registered nurse with considerable experience in accident and emergency work. Ms Kesh recorded the following in the Emergency Department triage notes: Patient states got up from lounge and felt crack in back of left foot. 9 After the plaintiff was seen by the attending medical officer a handwritten record was added to the Emergency Department triage notes stating: Stood up and possibly hit foot on lounge, heard crack. 10 The plaintiff denied that she provided this information to Ms Kesh or to the attending medical officer. She said that at the time she was in great pain and was seated in a wheelchair. She said Mr Andonovski responded to the question when asked what had happened. She denied that Mr Andonovski gave the history recorded in the hospital notes. Mr Andonovski said that he did not really talk to Ms Kesh. He said the plaintiff told Mr Kesh that she slipped when she came from the shower. He denied that she told the nurse of subsequently the medical officer that she was injured when she stood from the lounge or that she hit her foot on the lounge. 11 Ms Kesh was tested by the suggestion that her record was made under pressure or towards the end of a long and arduous shift. She denied any possibility that she was mistaken in what was recorded or that she was confused by Mr Andonovski's broken English or that her priority was to ensure the plaintiff's comfort rather than to identify with precision the mechanism by which she was injured. 12 Ms Kesh said it was not her practice to attend in the consultation room when the plaintiff was treated. She denied that she provided the history of injury that was handwritten on the notes. She agreed that the version she typed was provided to the attending medical officer when the notes themselves were delivered to the consultation room. 13 The plaintiff was also questioned about a history recorded by Dr Tarrant that: she was getting out of the shower, it seems, and struck her foot against the shower tiles or possibly the shower hob. 14 She was questioned about the history recorded by Mr Campbell, psychologist, that she slipped on cracked tiles and tripped over a shower hob while exiting the shower recess. The plaintiff said she told both Dr Tarrant and Mr Campbell that she slipped and that they incorrectly recorded the history of injury that she gave to them. 15 Dr Tarrant was asked to comment on whether it was more likely that the plaintiff's injury was suffered when she slipped on the bathroom floor or when she struck her foot against a lounge. His response predictably was that rupture of the Achilles tendon typically does not involve conduct(as said) and in fact is almost never related to trauma. Issue 2 – Evidence of Complaint 16 The plaintiff said that she complained many times to the cross-defendant about water leaking onto the bathroom floor. She said she complained to Vanessa and another female twenty or thirty times by telephone calls to the cross-defendant's office. She also named Sonia and a person on the counter at the defendant's office as persons to whom she complained when she attended to pay her rent. She said she heard Mr Andonovski ring up and make complaints also and that he made many complaints. 17 Her complaint was to the effect that the shower was leaking water onto the floor and needed to be fixed. She said her first complaint was made about two months after she moved into the unit in December 2004. 18 The response to her complaints was always that the cross-defendant would send someone to attend to the problem. In April 2005 a plumber attended the premises to fix the leaking toilet. The plaintiff said she asked him about the leaks to the shower and he looked at the problem, but said that it was not his job. 19 Mr Andonovski said that he rang a few times to complain. He subsequently stated that he rang thirty or forty times. The first complaint he said was made within two weeks of moving in. Mr Andonovski said he spoke to Sue and two other women on separate occasions when he attended the cross-defendant's office. Mr Andonovski was present in April 2005 when the plumber came to fix the toilet. He asked the plumber about the shower. The plumber's response was that he had been told nothing about the shower and it was not his job to fix it. Mr Andonovski agreed that the plaintiff also rang a few times to complain about the shower but he said that she did not ring as many as twenty times. 20 Against this evidence there was the following material. A residential premises condition report was completed, according to the plaintiff, about seven days after they moved into the unit. It noted a number of unsatisfactory features in the unit including a dirty kitchen. In respect of the bathroom it noted that grout was missing in places but made no reference to water leaking from the shower enclosure. The plaintiff agreed that she had noticed the leaks from the shower by the time the report was completed. She could not explain why this was not recorded in the residential premises condition report. Mr Andonovski said that he noticed the leaks after a couple of weeks and that he rang to complain within this period. 21 The plaintiff wrote two letters to the cross-defendant. The first related to a tree branch striking the window, the leaking toilet and defects in the stove. She said she wrote the letter at the suggestion of an employee of the cross-defendant because her complaints concerning the stove were not being responded to. The matters raised in the letter were fixed after the letter was written. She said she did not consider mentioning the shower problem because she had been told by cross-defendant's employees that they would attend to repairing it. As to the date of this letter, I have noted that the toilet was fixed in April 2005 and thus it appears that the letter was written prior to that date. 22 The second letter was written on 14 February 2006 when the plaintiff and Mr Andonovski vacated the premises. She referred to her broken leg and to difficulty with steps to the unit. The letter made no reference to a leaking shower. The plaintiff said that she was uneducated and not good at writing letters. It was apparent from the letters in evidence that this evidence was correct and that the plaintiff's level of literacy was poor. 23 The plaintiff was challenged concerning the number of complaints alleged. The plaintiff said she complained between twenty and thirty times by telephone. Mr Andonovski said he complained thirty to forty times. The claims, they said, were made through the landline phone connected to the unit. A phone record produced indicated that there were twenty-six telephone calls in the relevant period from the unit to the cross-defendant's office. There was evidence that the telephone conversations involved topics other than the bathroom floor. Those topics included rent payments, a complaint concerning a noisy tenant on a lower floor and complaints relating to the hotplates on the stove. 24 Finally, there was an absence of evidence concerning the complaints alleged to have been made. The cross-defendant could produce no written record that referred to any complaint concerning the shower by the plaintiff or Mr Andonovski. 25 The cross-defendant called a number of witnesses. They were former staff members who were employed by the cross-defendant at the time of the plaintiff's occupation of the home unit. All denied any recollection of complaints by the plaintiff or Mr Andonovski of a leaking shower. Some recall dealing in particular with Mr Andonovski concerning some of the complaints he made but did not recall a complaint about a leaking shower. Some recalled speaking with the plaintiff about the payment of rent but did not recall a complaint about a leaking shower. 26 Evidence was given by a number of the cross-defendant's witnesses concerning the computer program used to record complaints and to log the responses made to those complaints. There was no record of any complaint by the plaintiff or Mr Andonovski of a leaking shower, whether pending or completed, in the print-outs produced by this computer program. There were records that complaints made both verbally and in writing concerning other matters were made and were responded to. Issues 1 and 2 – Findings 27 I deal first with the issue of the complaint because it affected my view of the credit of the plaintiff and Mr Andonovski generally. 28 The evidence of the plaintiff and Mr Andonovski in my view was contrary to any concept of commonsense that a complaint made on the same topic between twenty and seventy times would not be recorded somewhere in the office of the cross-defendant. The plaintiff criticised the cross-defendant for not calling all of the employees referred to by the plaintiff and Mr Andonovski as those to whom they complained. It was suggested that an appropriate inference should be drawn. Those missing were unnamed receptionists. 29 I do not propose to draw any inference contrary arising from their absence. The particulars provided to the cross-defendant named only "Sonia" as the person to who the complaint was made. The defendant called Ms Sonia Walkom, the only person named Sonia who was involved in the cross-defendant's business at the time of the plaintiff's occupation of the unit. The cross-defendant called those persons for whom first names were provided in the course of evidence and those responsible for the management at the time of the plaintiff's occupation of the unit. They were unanimous in their evidence that they record no complaints concerning the leaking shower. Their evidence was supported by the absence of written record of complaint. 30 I do not accept therefore that any complaint was made, let alone the multiple complaints claimed to have been made by the plaintiff and Mr Andonovski. 31 As to the mechanism of the injury, in ordinary circumstances I approach records of hospital notes made immediately after injury with some caution. In this case the plaintiff was in pain and Mr Andonovski's English was spoken with a strong accent so that one might expect some discrepancy in the account given and the account recorded. In this case the accounts of the mechanism of injury were entirely different. 32 I do not accept that an experienced triage nurse misinterpreted the account given by the plaintiff or Mr Andonovski that she slipped on the wet floor of a bathroom so badly that she confused it with an injury suffered when the plaintiff got up from a lounge. 33 Dr Tarrant's opinion was of limited assistance because he was asked to address an injury caused when the plaintiff struck her foot against the lounge. This was not the history taken by Ms Kesh. Further, the handwritten notes repeated the record that the plaintiff stood up and referred only to a possibility that she struck her foot on the lounge. Dr Tarrant did not state, as claimed in submissions, that the mechanism of the injury was inconsistent with standing from the lounge. He was not asked to address this proposition. 34 I was therefore not satisfied that any complaint was made and I reject the evidence to that effect. 35 I was not satisfied that the plaintiff suffered injury in the manner that she claimed and I reject the evidence to that effect. 36 For these reasons the plaintiff's claim failed. 37 I proceed to deal with the remaining issues in the event that this matter goes further. I do so on the basis of the circumstances of injury described by the plaintiff and on the basis that she complained about the condition of the shower to the cross-defendant as claimed. Issue 3 – Duty of Care and Breach 38 Those complaints were received by the cross-defendant as agent for the defendant and a question remained as to whether the defendant was in breach of his duty of care to the plaintiff. 39 A report of Peter Shepherd dated 10 February 2006 after assessing the condition of the tiles and the shower enclosure indicated that water did in fact leak from a number of locations through ineffective seals and that it ran across the floor of the bathroom in excessive quantities. That assessment was confirmed when Dagwell Plumbing Pty Limited in August 2006 also identified missing grout and gaps between the shower screen and wall tiles. 40 Dr Cook tested the floor and noted that the tiles were not non-slip when wet and they presented a risk that a person with bare feet would slip on the wet surface. Dr Cook did not consider the risk was increased by the presence of greater than usual quantities of water. He suggested that the risk could be managed by the use of commonsense precautions. He appeared to consider the plaintiff's use of towels an appropriate precaution because although he was unable to perform a formal test, his tactile test indicated that a wet towel produced a more slip resistant surface than the wet tiled floor. He pointed out that there was no building code requirement or standard applying to the floor of a domestic bathroom and that the tiles used on the floor were typical of those found in domestic bathrooms. 41 In my view the purpose of a shower enclosure and screen is to minimise both the quantity of water falling on the bathroom floor and the area over which it falls. In this case they did not fulfil that function so that even if excess water did not increase the risk of slip, the area of the floor that became wet was greater than might normally be expected. The plaintiff was therefore put at increased risk and attempted to manage that risk by the use of multiple towels to cover the floor. 42 In my view the plaintiff acted reasonably. The defendant did not. He did not respond to complaints and with the knowledge through his agent of the increased risk he did not respond reasonably by authorising the repairs necessary to render the shower enclosure watertight. 43 If those circumstances had existed, then I would have held the defendant to be in breach of his duty to the plaintiff and liable to her in damages. Issue 4 – Liability of the Cross-Defendant 44 The managing agency agreement was dated 14 November 1990. Clause 16 which specifically provided an for indemnity in favour of the cross-defendant was deleted. 45 The defendant's evidence was that he left all matters concerning management of the unit to the cross-defendant. He received no notice of complaints and there was no evidence from the plaintiff or Mr Andonovski to suggest that they made any complaint directly to the defendant. 46 In the circumstances in my view the cross-defendant would have been held one hundred per cent responsible for the plaintiff's injury and would have been required to indemnify the defendant to the extent of the whole of the damages awarded to the plaintiff. Issue 5 – Damages 47 In assessing the plaintiff's claim I noted the injuries claimed in addition to the rupture of the Achilles tendon in the left leg. They included a back injury, pain and shock and the development of a psychiatric or psychological condition. There was no evidence presented to the court that addressed a back injury. There was evidence that the plaintiff was unhappy at the consequences to her of the leg injury. This evidence in my opinion was insufficiently strong to support the conclusion of Mr Campbell, psychologist, that the plaintiff suffered a chronic adjustment disorder with anxiety and depressed mood. I preferred, therefore, the opinion of Dr Vickery that the plaintiff was unhappy about her situation but that she had not suffered any psychiatric or psychological injury as a result of the injury to her leg. 48 I do not doubt that the rupture of the Achilles tendon caused the plaintiff considerable shock and pain. There was evidence that her initial treatment was inappropriate and that she was not properly treated until after she was referred to Dr Tarrant who undertook surgical repair of the tendon. There followed an extensive period of recovery and rehabilitation during which the plaintiff was required to use crutches and then a walking stick. 49 At the time of the injury she was forty-eight years old. She is now fifty-one. She remains with a slight limp and she can no longer walk the long distances that were formerly her means of exercise. She was no longer able to dance. She has extensive scarring on her lower left leg and the leg continues to cause her pain and to swell. She suffers discomfort at night that interferes with her capacity to sleep. The condition of her leg affects her capacity to provide care for her grandchildren and she had difficulty negotiating stairs and slopes. Dr Tarrant was initially optimistic of full recovery. However, both he and Dr Cummine accepted the plaintiff's ongoing symptoms as reasonable and consistent. I regarded the claim for general damages at thirty per cent of a worst case to be reasonable. 50 As far as out-of-pocket expenses were concerned, the plaintiff claimed for the cost of pain killing medication stating that she used Panamax for this purpose. She also said that she used Deep Heat cream to relieve her discomfort. She claimed to recover amounts paid for these medications both past and future. These claims were challenged by the cross-defendant, but it appeared to me that the plaintiff has had and remains with substantial symptoms and that she needed reasonable at some provision for relief. The modest sums proposed were considered allowed as claimed; for the past, $473.25 for the past and $4,870.80 for the future. Orders 51 Verdict for the defendant on the plaintiff's claim. 52 Verdict for the cross-defendant on the cross-claim. ********** JUDGMENT ON COSTS MADE ON WEDNESDAY 18 FEBRUARY 2009 53 In this matter the proceedings were heard over three days commencing on 2 February 2009 and an oral judgment delivered on 11 February 2009 in which I ordered a verdict for the defendant on the plaintiff's claim and a verdict for the cross-defendant on the cross-claim. The proceedings were adjourned to today's date to deal with issues of costs. On that date the plaintiff indicated that she wished to say nothing on the issue of costs and she was excused. 54 The defendant has tendered today a copy of an offer of compromise served on the plaintiff on 28 November 2007 and asks for an order against the plaintiff for ordinary costs up to and including 28 November 2007 and for costs on an indemnity basis thereafter. Having heard nothing from the plaintiff to suggest that this would be an inappropriate order, I propose to proceed on that basis. 55 I have heard argument between the defendant and the cross-defendant concerning the costs of the cross-claim, each arguing that they should have costs partly on an ordinary basis and partly on an indemnity basis. Their arguments arise out of an exchange of letters that took place between them. The cross-defendant on 6 June 2008 offered to settle the cross-claim for the payment of a sum of $10,000 and costs. In response the defendant offered to accept an indemnity from the cross-defendant and to allow the cross-defendant to assume the conduct of the proceedings on behalf of the cross-claimant. 56 The cross-defendant argued that in bringing the cross-claim the defendant took a commercial risk in the sense that if the claim against it by the plaintiff failed, it was at risk as far as the cross-defendant's costs were concerned on the basis of rule 42(1) to the effect that the ordinary rule is that costs follow the event. 57 This is certainly a valid proposition; however, in this case it was apparent that the only basis upon which the defendant might have been held liable was that the cross-defendant, as its managing agent, had not performed its obligations of managing the property which the plaintiff rented from the defendant. As the case developed, the plaintiff named a number of persons who were said to have received complaints from her concerning the condition of the premises. The cross-defendant was in a position to call a number of those persons. The cross-defendant was in a position to provide records of the cross-defendant concerning the registration of complaints. This course would not have been available to the defendant had it been before the court defending the claim in isolation from the managing agent. 58 I have decided that it is appropriate that the cross-defendant pay the defendant's costs on an ordinary basis for the reason that it was apparent, as I have already said, that if there was to be liability, the liability would have been found to have arisen through the neglect of the cross-defendant and the defendant would clearly have been entitled to complete indemnity as proposed in the letter of 2 July 2008. I limit the order to ordinary costs having regard to the exchange of letters between the two opponents which in my view ought to have resulted in some form of commercial arrangement so that only one of the parties remained before the court. FURTHER ORDERS 59 The following further orders are as follows: 60 The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis up to and including 28 November 2007 and on an indemnity basis thereafter. 61 The cross-defendant is to pay the defendant's costs of the cross-claim on an ordinary basis. 62 The plaintiff is to indemnify the cross-defendant in respect of the order for costs made against it. 63 The exhibits are returned. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.