New South Wales Court of Appeal CITATION : City Elevator Services Pty Limited v Burrows [2004] NSWCA 26 HEARING DATE(S) : 10 December 2003 JUDGMENT DATE : 19 February 2004 JUDGMENT OF : Santow JA at 1; Tobias JA at 65; Palmer J at 66 DECISION : 1. Appeal allowed; 2. Judgment of the trial judge of 28 February 2003 set aside and in lieu thereof judgment for the appellant; 3. The respondent to pay the appellant's costs of the trial and of the appeal and in respect of the letter, to have a certificate under the Suitors Fund Act, 1951. CATCHWORDS : NEGLIGENCE - liability in negligence - admissibility of expert's report - failure to make adjustments to lift mechanism prior to accident - was injury reasonably foreseeable - failure to address factors pertaining to duty of care in Wyong Shire Council v Shirt or by reference to industry standard. LEGISLATION CITED : Evidence Act s79 Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389 Giannarreli and Anor v the Queen (1983) 154 CLR 212 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 Mifsud v Campbell (1991) 21 NSWLR 725 CASES CITED : R v Meier (Court of Criminal Appeal, 21 May 1996 - BC9601936, unreported) Smith v Bagias (1978) 21 ALR 435 Stirland v Director of Public Prosecutions [1944] AC 315 The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 Wyong Shire Council v Shirt (1980) 146 CLR 40 PARTIES : City Elevator Services Pty Limited (Appellant) Suzanne Burrows (Respondent) FILE NUMBER(S) : CA CA 40197/03 COUNSEL : J E Maconachie, QC (Appellant) D J Russell, SC (Respondent) SOLICITORS : Deacons (Appellant) Shaw McDonald (Respondent) LOWER COURT District Court JURISDICTION : LOWER COURT DC 10116/00 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40197/03 SANTOW JA TOBIAS JA PALMER J 19 FEBRUARY 2004 CITY ELEVATOR SERVICES PTY LIMITED v Suzanne BURROWS Judgment 1 SANTOW JA: INTRODUCTION Suzanne Burrows, the plaintiff in the court below and now respondent, was injured on 15 December 1997 when the lift doors closed upon what she described as " my left side ", certainly including her left arm. She described herself as feeling pain in her left forearm and left shoulder. She sued the owner of the building (the first defendant in the court below) and failed; no appeal is brought from that finding. 2 She also sued the company which maintained the lifts in the building, being the second defendant in the court below and now the appellant in this court. Before Balla DCJ she was successful in proving negligence against that appellant, City Elevator Services Pty Limited. The trial judge dismissed an allegation of contributory negligence on her part and no appeal is brought from that finding. The trial judge assessed damages at $162,980.63 and no appeal from that assessment is brought. 3 The appeal brought by City Elevator Services Pty Limited against liability in negligence proceeds on various grounds set out below: "1. The learned trial judge erred by admitting into evidence the report of Farhad Shafaghi dated 8 November 2001 marked Exhibit A. 2. Alternatively to ground 1, the learned trial judge erred in giving any weight to the evidence of Farhad Shafaghi in Exhibit A. 3. the learned trial judge erred in finding that if the adjustments made in January 1998 had been made prior to 15 December 1997, the plaintiff would not have been injured (J6.2). 4. The learned trial judge erred in drawing the inference that Tsakos' (the resident lift mechanic) evidence would not have assisted the appellant (J5.17). 5. The learned trial judge did not find, and there was no evidence upon which he could have found, that any fault or defect in the lift doors existed for such a period of time as to permit reasonable inspection to locate the fault, isolate the lift and correct any such fault or defect. 6. The learned trial judge erred in finding that the appellant should have adjusted settings before the plaintiff's injury (J6.3). 7. The learned trial judge failed to give any adequate reasons for the decision and/or failed properly or at all to consider all of the evidence in the case and thereby failed to properly discharge her judicial function." 4 I should explain that the report of Dr Shafaghi was a report from the then plaintiff's expert. 5 The adjustments referred to in the third appeal ground are those referred to at Blue, 45 and in the judgment at Red, 27C. They were adjustments to the door's operation made by a Mr Hoogvliet. He was employed by the appellant at the relevant time in the role of Field Engineer providing mostly technical assistance. This he described as "to go in when the service people are having prolonged problems or unsolvable problems to them, then to add the technical support"; Black, 46W. I shall return to those adjustments as they are of some importance. Essentially they related to what were described as "door close force", "door slowing point" and "door closing speed". Those adjustments were evidently designed to reduce the force of any impact from the closing door and provide a longer time before the door closed. They are central to the trial judge's critical conclusion that, had those adjustments by Mr Hoogvliet been made before the time of the accident it would not have occurred. I set out the critical passage from the judgment (Red, 26-7) with my interpolations here (and later) in square brackets: "The second defendant did employ a full time lift mechanic [Tsakos]. However this does not discharge its duty to the plaintiff. Firstly that mechanic was not called to give evidence and there was no satisfactory explanation for his absence. I draw the inference that his evidence would not have assisted the second defendant. I infer that the settings found by Mr Hoogvliet on 22 January 1998 [see Blue, 45] were the same on 15 December 1997. In drawing this inference I have relied on the maintenance records which show that the lift was last checked by Mr Tzakos [misspelled – should be Tsakos] on 17 January 1998 when, I infer, he was satisfied with the settings found by Mr Hoogvliet five days later. There is no evidence to suggest that the settings could be changed by anything other than manual intervention. Counsel for the defendants submitted that even if the settings were changed by Mr Hoogvliet this did not mean that the settings used by Mr Tzakos were not within the operating guidelines for the lifts and safe. He took me to a document which described the settings used by Mr Hoogvliet as 'the absolute minimum'. I do not accept this submission. I accept the evidence of the plaintiff's expert who described the settings on the lift prior to adjustment by Mr Hoogvliet as a 'fault'. I am satisfied that the effect of the evidence of Mr Hoogvliet and the reasoning of the plaintiff's expert establish that if the adjustments made in January 1998 had been made prior to 15 December 1997 the plaintiff would, on the balance of probabilities, not have been injured. I am satisfied that a reasonable man in the second defendant's position would have foreseen that its failure to adjust those settings involved a risk of injury to the plaintiff and taking account all relevant factors should have adjusted them before the plaintiff's injury. I am accordingly satisfied that the plaintiff has established a breach of duty of care on the part of the second defendant." 6 It is convenient that I give a summation of the remaining critical findings in the judgment which underpinned the finding of negligence, before turning to the grounds of appeal and the competing contentions of the parties. 7 The trial judge's description of the actual accident commences with this description which is essentially uncontroversial. "On Monday 15 December 1997 the plaintiff was working in the Law Courts building as the associate to Justice Dowd. At around 3.00 p.m., when she was alone in chambers, she left to collect Court files from another building. It was the evidence of the plaintiff that as she entered one of three lifts the doors started to close, striking her on the left side. They continued to close until she was squeezed between the doors. The plaintiff said that she was terrified but tried to stay calm. She eventually was able to twist her body and enter the lift. Her left forearm just below the elbow and the outer edge of her left shoulder were very painful. [Red, 22] 8 However, later in her judgment the trial judge, while accepting the respondent's description of the accident did so with the qualification that there were two areas where her evidence was unclear and where ultimately the trial judge accepted what was put by counsel for the respondent: "On balance I accept the submission made by counsel for the plaintiff that while she ultimately conceded in cross examination that the doors were open when she was 1 cm away, the effect of the whole of her evidence was that she was not paying a lot of attention and that the doors could have commenced to close. Secondly the plaintiff told her expert that after she was fully in the lift the doors continued to close [that is, I interpolate, the word "continued" indicates that her account was that the doors did not first open before closing]. I accept the submission made by counsel for the plaintiff that the evidence is unclear as to whether, taking into account her preoccupation with her injury, the doors may have opened before closing." 9 Significantly, the trial judge "taking into account the evidence of Mr Hoogvliet" expressed herself satisfied merely that "the accident could have occurred in the manner described by the plaintiff". [emphasis added] She "also accepted the evidence of the plaintiff in relation to the circumstances of her injury". Here, there is no suggestion that the trial judge was relying upon Dr Shafaghi's expert report. 10 I can pass over the question of whether the plaintiff put her left arm between the lift doors as they were closing to keep them open as that did not feature in the submissions made by either party. What is significant is the trial judge was accordingly satisfied that "as the plaintiff approached the lift, the doors were open and as she entered the lift she was struck in the manner that she described and that she then was trapped for a short time by the doors. After she freed herself the lift continued its normal operation" (Red, 26). 11 The trial judge made the following further findings. These findings, in combination with the earlier findings ([5] above) provide the total of the judge's bases for concluding that the appellant had breached its duty of care to the respondent. This result was said to follow from application to those findings of the principles of Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 per Mason J. They are conveniently referred to as "the Shirt calculus", quoted at [12] below. The further findings are as follows: "I find that: 1. there was a 15 second delay from the time that the doors had fully opened to when they started to close. 2. the door opening time on the day the plaintiff was injured was 3 seconds. 3. the lift was fitted with two protection systems; 4. the first system was an electronic array of infra red beams that projected across the lift entrance when the doors were open. The array was mounted on the liftwell side of the lift doors. A passenger entering the lift would activate the system by entering 150 mm through the landing door. If a beam was interrupted the doors would either stay open or, if they were already closing, the doors would come to a stop and then reopen. 5. the second protection system [nudge system] was not enabled. It would have caused the doors to slowly close after a set time and 'nudge' a passenger out of the path of the beam/s. 6. the first defendant retained the second defendant to provide regular inspection and maintenance of the 16 lifts in the building. 7. in performance of that contract the second defendant employed a full time lift mechanic, Mr Tzakos [should be Tsakos], to maintain those lifts. In addition an independent organisation was retained once a year to check the lift system. 8. the lift doors were inspected approximately weekly in the period up to 21 November 1997 by Mr Tzakos. He next inspected them on 17 January 1998." 12 The principles applied from Wyong Shire Council v Shirt (supra) are as follows: "In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position." 13 Finally, the trial judge refers to Mr Hoogvliet's evidence and that of the other experts being Mr Bruce Oldham for the appellant and Dr Shafaghi for the respondent, in these terms: "The second defendant's field engineer, Mr Hoogvliet, who examined the lift on 22 January 1998 prepared a report (Blue, 45' which relevantly provides: 1. All micro scan units worked OK. 2. Nudging is disabled so doors cannot close if the beams are broken. 3. The door closing travel time was 3 sec. 4. The closing force was a bit high. 5. The door reversal reaction time was a bit slow due to the smooth operation of the doors. The following action was taken: 1. Door close force set to absolute minimum; 2. Door slowing point made earlier; 3. Door closing speed reduced to 4.5 sec closing time. The author of the document was called to give evidence. He explained that, as the lift doors start to close they travel more quickly and then, at the door slowing point, they slow down as they complete closing. The door close force is the force required to manually stop the doors from completing their close. The door closing time is the time taken for the doors to fully close from the open position. There is conflicting expert evidence. The first defendant's expert [Mr Bruce Oldham in report dated 8 April 2002, Blue, 77] considered that the records showed that maintenance and checking of the protection system was regularly carried out and that there was no record of any problem with the protection system in the period 16 May 1997 to 18 March 1998. The plaintiff's expert [Dr Shafaghi's report dated 8 November 2001 in Blue, 30, following inspection 4 years after the accident on 26 October 2001] considered that the records showed that there was a defect in the lift system which had allowed the injury to occur. That defect was not however consistent with the doors continuing to close after the plaintiff had fully entered the lift." 14 The appellant challenges for lack of specificity the reference in the final quoted paragraph above to "a defect in the lift system which had allowed the injury to occur". The appellant complains that this begs the question, what defect did so. The respondent contends, and I agree, that this must in context refer to the defect dealt with in the immediately preceding paragraphs. That defect was in the proper adjustment of the door closing control function, as distinct from any photo-electric light curtain. I agree with the respondent that the acknowledgment by the trial judge that the defect was not consistent with the doors continuing to close after Ms Burrows had fully entered the lift, can be reconciled with the trial judge earlier concluding that the "doors may have opened before closing"; Red, 25. However, the appellant's contentions go further than that and it is to these I now turn. COMPETING CONTENTIONS – RESOLUTION OF APPEAL 15 The starting point for the appellant's attack is that the report of Dr Shafaghi should not have been admitted into evidence. This was by reason of Dr Shafaghi failing "to demonstrate that, by reason of a specified training study or experience, he had become an expert in an identified aspect of a field of specialised knowledge relevant to the issue of the operation of passenger lifts". Reliance was thus placed upon s79 of the Evidence Act 1995 and the decision of Heydon JA in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705. In particular, it was contended that not only was objection taken to the admissibility of the document but that, whether objection was taken on that general basis or not, the trial judge should have rejected the report. This is more particularly as it was contended that Dr Shafaghi did not demonstrate "how any field of specialised knowledge in which he was relevantly expert provided a basis for application to facts proved in the evidence so as to lead to the opinion propounded; nor did his report demonstrate that, or how, any opinion was based on training, study or experience …" (Orange, 2). 16 To this the respondent first contends that no objection was taken to the report of Dr Shafaghi on what might be called a "Makita" basis. Rather objection was on the following four bases: "(a) The report was based upon an inspection carried out two years after the incident (Transcript 13/41, 16/18). (b) The author of the report purports to construe documents of the Second Defendant (Transcript 13/42). (c) At paragraph 5 of the report the author sets out facts and assumptions which he assumes the Plaintiff can prove (Transcript 13/54-14/49). (d) At paragraph 32 the expert gives an inappropriate or incorrect construction to the Second Defendant's document (Transcript 14/55-16/1). Note that the reference to Transcript above corresponds to the relevant references in the Black book. 17 A fair reading of the objections made indicate that no global objection to the whole report was made based upon the expertise of Dr Shafaghi. Indeed there was nothing on the face of the report or his qualifications that would, prima facie, cast doubt on his broad expertise in the area of lifts, whatever might be said about specific parts of the report. The real gravamen of the claimed objection, brought out at T, 1314, is that enumerated above by the respondent. It is coupled with an objection to the report being based "upon assumption upon assumption" and thus being "speculative in nature". I would however accept the respondent's argument that no objection was made to the report as a whole on Makita grounds. That still leaves the issue of whether, notwithstanding absence of an objection so framed, the trial judge should have of her own initiative rejected the report on such a ground. 18 It is well-settled that evidentiary rules such as the rule against hearsay may be waived by the parties. The principles are clearly expressed by McClelland J in The Ritz Hotel Ltd v Charles of the Ritz Ltd (1988) 15 NSWLR 158 at 170: The principal rule of law which denies to statements probative value which they might otherwise have is the rule against hearsay. The application of this rule may however be waived by the parties. Both parties must join in the waiver since a testimonial statement, properly admitted as such, is available to be used for or against either party; see, eg, Stunzi Sons Ltd v House of Youth Pty Ltd (1960) 60 SR(NSW) 220; 77 WN(NSW) 23; Allied Interstate (Qld) Pty Ltd v Barnes (1968) 118 CLR 581; R v Williamson [1972] 2 NSWLR 281; Cole v Evans (Court of Appeal 2 May 1975, unreported). The tender of a statement may amount to a waiver by the tendering party of the application of the hearsay rule to that statement, and the absence of objection to the tender may amount to such a waiver by the party against whom the tender is made, but only in my view where such a waiver on each side can reasonably be inferred from the circumstances, and this will occur only where there is no other apparent explanation of the tender and the absence of objection. The most obvious instance of this is where the statement, as original evidence (that is, otherwise than as evidence of the truth of assertions in it) could not be relevant to any issue. If however the statement would be (or is tendered on the basis that it is) relevant to an issue in the proceedings as original (that is, non-testimonial) evidence, then it is not possible to infer either from the tender or the absence of objection, a waiver of the operation of the hearsay rule." 19 Of course evidence may be so inherently unreliable that no weight should be attached to it, though no objection of that sort was taken to its admission; see Smith v Bagias (1978) 21 ALR 435. 20 Moreover, in the criminal context, as Viscount Simon LC explained in Stirland v Director of Public Prosecutions [1944] AC 315 at 327, other members of the House of Lords agreeing, there "cannot be a universal rule" to the effect that "a conviction cannot be quashed on the ground of the improper admission of evidence prejudicial to the prisoner". This is unless a timely objection was made by counsel, but subject to the proper role of the judge to intervene in such a situation: "It has been said more than once that a judge when trying a case should not wait for objection to be taken to the admissibility of the evidence but should stop such questions himself: see Rex v Ellis [1910] 2 KB 746. If that be the judge's duty, it can hardly be fatal to an appeal founded on the admission of an improper question that counsel failed at the time to raise the matter … The object of British law, whether civil or criminal , is to secure, as far as possible, that justice is done according to law, and, if there is substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at the trial is not necessarily conclusive." (at 327-8) [emphasis added] 21 Counsel for the appellant, Mr MacConachie, QC sought to derive from Viscount Simon's reference to civil or criminal law the notion that the obligation on the trial judge to intervene extended equally to the civil law. There is however no binding authority to that effect in a civil law context. Authorities following Stirland such as Giannarreli and Anor v the Queen (1983) 154 CLR 212 and R v Meier (Court of Criminal Appeal, 21 May 1996 – BC9601936, unreported) were all decided in a criminal context. There the importance of judicial alertness to intervene can readily be appreciated, otherwise unfairness to the accused would result from inadvertent admission of otherwise inadmissible evidence. 22 However, accepting that the evidence was originally admitted without general objection, that is not the end of the matter. There remains the question both of the weight to be given to Dr Shafaghi's report as compared to the weight actually given to it by the trial judge and the degree of reliance in her reasoning upon that report, in relation to the specific objections originally raised and again pressed. 23 I should start by proceeding on the premise that the author of the report had the necessary technical qualifications to give his opinion on the functioning of lift doors. As no point was taken at trial questioning his technical expertise in the area of lift mechanics, I would reject the contention that the report should be given little or no weight on the basis that his expertise had not been demonstrated. Moreover, a reading of the report indicates a degree of technical knowledge of the measurement of door closing force and the factors that could affect it; see in particular para 27 and following of the report (Blue, 37). 24 The report does not purport to be one made from observation at the time of the accident but some four years later. The author of the report had, it appears, inspected the 1997 and 1998 records and, in particular, "The Report of Findings and the Record of Service Calls"; see para 6 and Appendix A of the report. 25 Dr Shafaghi described visiting the site of the accident and inspecting the function of the elevator against a standard being AS 1735.2-1997. This was for "Passengers and Goods Lift" – "Electric Australian Standard", extracts from which are attached to his report as Appendix B. He described his inspection as "purposely limited to the design of the doors and their closing functions, overlaps, passenger protection devices and dimensions". 26 The appellant rightly observes that there was no evidence showing that the lift was operating outside the Australian Standard. That is a matter of some significance when it comes to considering the basis for contending that the adjustments made by Mr Hoogvliet were actually necessary to render the lift safe, as distinct from being done out of an abundance of caution following an accident as Mr Hoogvliet in his evidence asserted. It must be fundamental to establishing negligence in circumstances of the present kind to demonstrate not merely that the accident would not have occurred had the adjustments been made, but also that (a) the appellant's conduct by act or omission in neglecting to make such adjustments would have led a reasonable man in the appellant's position to have foreseen that such conduct involved a risk of injury to the respondent or to a class of persons including the respondent, (b) applying the Shirt calculus, making the adjustments must be what a reasonable person would do by way of response to the risk; that is to say, judging that risk according to its magnitude and probability "along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities the defendant may have". 27 There was before the trial judge no evidence of any other accidents at the relevant time, or over an extended period nor any evidence concerning those other factors pertaining to risk and its alleviation. The Shirt calculus calls for such evidence; for how else can one judge the response of "the reasonable man". That in turn requires consideration "of the magnitude of the risk" and "the degree of the probability of its occurrence". Here the argument of the respondent comes close to asserting that the mere fact of the accident coupled with the capacity to avoid it constitutes a kind of res ipsa loquitur pointing inevitably to liability. But that cannot be sufficient to create a presumption that those other critical factors in the Shirt calculus lead to liability. Nor can one ipso facto take it that a reasonable man would have made the adjustments in question prior to the accident occurring. Moreover they were not shown to be mandated by any standard. There is an absence of sufficient direct evidence pertaining to risk and its alleviation, though I need now to consider the report of Dr Shafaghi for such indirect evidence as it may provide. 28 The report of Dr Shafaghi continues with a statement of "My understanding of the Accident". The appellant seizes on para 11 of the Report which clearly indicates that Dr Shafaghi's understanding was that the lift had to be called by Ms Burrows and was not already there with the doors open or opening. In fact the trial judge found to the contrary; that "as the plaintiff approached the lift, the doors were open"; Red, 26D. 29 Second, para 14 of the Report states that, "the doors of the elevator did not stop closing or re-open even though her body was fully in the gap between the two doors". At para 16 it is stated that "she eventually managed to pull/push all her body into the elevator, the doors then fully closed and the elevator continued normal operation". 30 In fact the finding of the trial judge was, as conceded by Counsel for Ms Burrows, that "the evidence is unclear as to whether, taking into account her preoccupation with her injury, the doors may have opened before closing". This was in circumstances where the trial judge stated that she was satisfied that "as the plaintiff approached the lift, the doors were open and as she entered the lift she was struck in the manner that she described and … she then was trapped for a short time by the doors"; see Red, 26D. 31 However, I do not consider either of the discrepancies between the Report and the trial judge's finding as having of themselves any real significance. It must be taken that insofar as the trial judge relied on the reasoning of "the plaintiff's expert" this was merely as to the proposition that if "the adjustments made in January 1998 had been made prior to 15 December 1997 the plaintiff would, on the balance of probabilities, not have been injured"; Red, 27C. Experts not infrequently make assumptions which are refined in the course of evidence. The question is simply whether such refinement must necessarily undermine the Report or the trial judge's reliance upon it. In my view these discrepancies do not do so here, though that still leaves to be considered whether there was a proper basis for the trial judge to reach the conclusion she did. 32 Thus the Report is also attacked at a more critical point. At para 26 reference is made to "high closing force, high speed of the closing door and disabling of force closing functions" as being "the clues to the possible problems existing at the time of the accident". The conclusion reached by the expert was that "contrary to the content of the maintenance report the most probable cause was the malfunction [of the] passenger protection device (photo-electric light curtains)". 33 The immediate problem with that explanation of the accident is pointed out by the appellant. It is that nowhere in the expert's report does he identify any fact which would demonstrate the malfunction in the photo-electric light curtains or permit an inference that this occurred; that is to say, other than the fact of the accident itself, so begging the question as to whether it could have been caused instead by other factors. 34 To this the respondent responds that the trial judge did not rely upon that supposed malfunction of the photo-electric light curtains, so that the error had no significance. 35 I shall put aside for the moment the second basis for finding "fault" with the conduct of the respondent, namely, the need to adjust the door closing speed as was later done by Mr Hoogvliet. I come now to the third basis for finding "fault". That basis is that Mr Hoogvliet is cited as saying that "he decided to disable 'nudging'". Whereas the true position was that that protective device had, as the trial judge concluded, never been "enabled". I should explain that the so-called "nudging" device operates, when "enabled", to cause the doors slowly to close after a set time and thereby "nudge" a passenger out of the path of the beams (judgment, Red, 23L). That inaccuracy stems no doubt from Mr Hoogvliet's report. There he describes what he found on checking the lift, namely that "nudging is disabled so doors cannot close if the beams are broken", being he asserts, the state of affairs that pre-existed and applied at the time of the accident. 36 Again, however, the trial judge did not rely on that aspect of the report and indeed found to the contrary. 37 I return now to the so-called second basis for finding "fault", namely that by changing the door-closing speed, as did Mr Hoogvliet after the accident, from 3 seconds to 4.5 seconds "…the energy available to impart injury was reduced 2.25 times …"; para 31 of the expert's report. 38 The appellant objects to this as a sound basis for finding fault or demonstrating negligence in written submissions (Orange, 3): "But nowhere does he: (i) demonstrate what that means in absolute terms; (ii) show what, before the change of speed, the relevant energy factor was; (iii) establish whether the pre-change energy level was higher or lower than the Australian Standard AS7735.2; (iv) reason that the pre-change energy factor, having regard to principles of science, could have caused injury. He merely implies that a factor of 2.25 must be significant and must be causative. Indeed, at paras 29 and 30, he states that the material necessary to form any conclusion is unavailable." 39 Paragraphs 29 and 30 of the report state as follows: "29. The attached maintenance report refers to no measurement of maximum closing force other than saying that he had no way of measuring it and it seemed too high so he set it at minimum possible. 30. He [Mr Hoogvliet] also states that the door closure speed was reduced from 3 to 4.5 seconds. I am unaware of the mass of the elevator doors and the related fixed part, which is required to work out the kinetic energy of the closing doors. This mass measurement enables finding out whether the closing doors' kinetic energy met the requirement of standard or not." 40 I agree with the appellant's submissions. Essentially all the calculation at para 31 of the expert's report demonstrates is that if you slow the doors down by half you get more than a double reduction in the force of those doors, namely a reduction of 2.25 times. That of itself is relatively uninformative without further explanation. As the Shirt calculus explains, the perception of the reasonable man's response calls not only for an objective assessment of the magnitude of the risk and the degree of probability of its occurrence but also the difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the relevant defendant may have. The report says nothing as to this. 41 Here, one may accept that it is possible to reduce the speed of the lift doors closing to the point where there is a more than proportionate (2.25 times) reduction in force exerted, thus obviating any likely injury. It does not however answer whether a lesser reduction in speed would suffice to obviate any likely injury. Moreover, there needs to be some consideration not only of the relevant standard but also the effect this would have on effectively functioning lifts and the delay this would cause in carrying the passenger load in a bank of three lifts. There is simply no such evidence on that significant matter. It goes to the reasonableness of response and to potentially conflicting responsibility here to provide a reasonably prompt lift service. 42 This basis for finding "fault" needs to be considered with what is described as the fourth basis for so doing. That is the description given by Mr Hoogvliet as to what he saw on 22 January 1998. This is referred to in part at para 33 of the report where reference is made to Mr Hoogvliet finding "the doors' reversal reaction as 'a bit slow'". I should at this point quote the three actions that Mr Hoogvliet records himself as taking on 22 January 1998, the third being identical with what I describe as the second basis for finding "fault" to which I have earlier made reference. "(1) Door close force set to absolute minimum (2) Door slowing point made earlier (3) Door closing speed reduced to a 4.5 sec. closing time." 43 Importantly, when Mr Hoogvliet was questioned about Mr Tsakos whose job was to make the regular adjustments as a qualified lift engineer, the passage I quote below occurs. This makes it clear that if the reversal of the doors on the lifts was a bit slow he would not necessarily make appropriate adjustments. This was because it did not necessarily mean that it was too slow by industry standards. He did state that if it was too slow by his own standards he would make adjustments because "I err on the side of caution", though making it clear that this would be done by the service mechanic not himself. I quote (Black, 54 T54-5): "Q. Certainly if you happened to be, if I can put it for these purposes, a stand-in for Mr Tzakos [sic] you were asked to go and stand in for Mr Tzakos [sic] and do the work and you attended a lift and you saw that that lift, on your check that the lift was force or reaction for instance for the reversal of the lifts was a bit slow you would make appropriate adjustments? A. Not necessarily. Q. Why not? A. Because it doesn't necessarily mean that it is too slow by industry standards. Q. I'm just saying, if it was too slow by your standards, you've given me your standards, you would make the adjustments? A. Sir, I would. I err on the side of caution. Q. And if the lift appears to be closing a bit fast you'd also make the adjustments? A. Not the service mechanic, no. Q. You wouldn't do it? A. I'm a tuner and my expertise, field of expertise is in a different area and a further area than the standard mechanic. Q. I see, so, what can Mr Tzakos [sic] do, can he – he can't adjust the speed of the closing doors? A. Yes, he can. Q. That's what I'm asking. If he noticed that the doors were closing a bit too fast he has the ability, does he, to adjust them? A. He would if he saw that." 44 The expert's report having first erroneously referred to Mr Hoogvliet as having disabled the "nudging" device and attributed the accident possibly due to the nudging device having earlier been in operation when the accident occurred, all of which was incorrect though concededly not relied upon by the trial judge, the expert says the following regarding the "doors reversal reaction as 'a bit slow'" and the implications from that. I quote: "33. Alternatively the same effect can be traced in item 5 of the maintenance technician report that finds the doors' reversal reaction as "a bit slow". There is no measure for "a bit slow" in this context however the remedy the maintenance technician has found is the item 2 at the bottom of his report which is "door slowing points made earlier ". The combined effect of 'a bit high' closing force, delays in retraction and high closing speed (higher kinetic energy) could also cause the accident as reported by the plaintiff. This is except for the part where it states that after she pulled/pushed herself out of the jaws of the closing doors into the car, the doors closed and the elevator continued normal operation." 45 The fundamental problem with all of this is that, as the expert concedes, what is "a bit slow" suffers from the fact that there is no measure for that. "A bit slow" is imprecise even as a relative term. Similarly imprecise are the other factors referred to in the report, namely " 'a bit high' closing force, delays in retraction and high closing speed …". 46 There is at no stage any attempt to relate these observations to any industry standard or code. Nor is there any attempt to deal with factors of lift inconvenience if the retardatory steps summarised by Mr Hoogvliet in the earlier quoted report were in fact continued, not merely out of an abundance of caution immediately after an accident, but on a continuing basis. 47 When it comes to the final conclusion of the expert, the following is stated at para 34: "34. Based on the material set out above and the documents presented together with copies of the material annexed, I am of the opinion that: · the injury claimed was as the result of malfunction of the control System of the elevator. This is to say nothing other than correct adjustment of the door closing control function would have been required to prevent this injury. · The elevator was subject to frequent service checks (see attached records) and it is therefore reasonable to expect that the faults should have been detected prior to the accident even though these elevators are not subject to heavy use. · The faults detected and the maintenance actions taken shows that the fault in all probability existed for some time both before and after the accident but had apparently not caused an injury to others. Nevertheless this accident was foreseeable." 48 Here the appellant's attack starts with the first dot point. Thus it is said there was no evidence of any such malfunction which one would take to mean no evidence in relation to the photo-electric light curtain malfunctioning. However, confusingly there then follows the second sentence. This suggests that the expert may instead have been referring to the "correct adjustment of the door closing function", meaning that it had not been correctly adjusted and thus malfunctioned so that its correction would have prevented the injury. So construed, the first dot point relies on the evidence of Mr Hoogvliet. It is part of the basis for the trial judge's conclusion that the adjustments he made were such that if they had been made prior to 15 December 1997 "the plaintiff would, on the balance of probabilities, not have been injured"; see judgment Red, 27E. 49 This interpretation is consistent with the remaining two dot points of para 34 though the last dot point acknowledges yet again the difficulty in the way of finding negligence. It is that the faults in question "had apparently not caused an injury to others". Yet it is then followed by the assertion, without further substantiation, that "nevertheless this accident was foreseeable". That assertion simply begs the question whether the accident was not only foreseeable but reasonably foreseeable. 50 I should deal briefly now with other criticisms of the appellant concerning first the expert's report and second the underlying basis for the trial judge's conclusion. 51 The appellant in its written submission makes note of Dr Shafaghi's assumption that the plaintiff in fact called the lift. Whereas the evidence was that the lift was not called but was there and open when she arrived at the lift lobby. That, however, as I have said, did not affect the trial judge's reasoning. 52 Similarly, much is made of the evidence not supporting a finding that "the doors may have opened before closing" (judgment Red, 25). Again, I consider there is no particular significance in that matter as the trial judge clearly left open the possibility that the doors may have opened before closing. 53 Issue is taken about the inference that could properly be drawn from Mr Tsakos not being called, he being the lift mechanic employed by the appellant. However, the real problem about drawing a Jones v Dunkel inference from failure to call Mr Tsakos is whether the inference as drawn against the appellant could otherwise be drawn at all. If it could not, then no Jones v Dunkel inference could save the reasoning, for it is only available to strengthen an inference otherwise able to be drawn. 54 Then it is said as the respondent gave no evidence of any defect, fault or aberration in either the relevant lift, No. 15, or the adjoining lifts 13 or 14, as occurring prior to 15 December 1997 so that, given that the respondent had worked in the building for some four to six months, this seriously weakened her case. Indeed it was said that "the inference is open and should have been drawn that she saw no such problem prior to 15 December 1997". This relies on a kind of reverse Jones v Dunkel inference of the kind referred to by Handley JA in Commercial Union Assurance Company of Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389 at 418. 55 Then it is said that none of the service maintenance records suggest any such fault being inspection specific and this, coupled with no evidence of complaint before 15 December 1997, precludes an inference that the settings were at 15 December 1997 as observed on 22 January 1998. At para 11 of the appellant's written submissions, the following is said regarding the service maintenance records: "11. the absence of service maintenance records for either 28 November 1997, 5 December 1997 or 12 December 1997, unexplained, means nothing. The finding by Her Honour (J2 No 8) that the lift doors were "inspected approximately weekly in the period up to 21 November 1997" is correct as far as it goes but overlooks that there is a gap in the service maintenance records from 20 June 1997 to 26 September 1997. It was never suggested to Hoogvliet that the earlier gap was material. In those circumstances, the absence of records between 21 November 1997 and 17 January 1998 – a substantial part of which period was the law vacation – is at best a neutral fact." 56 I do not consider that these considerations are by themselves such as to require this Court to draw a different inference to that drawn by the trial judge consistent with the evidence of Mr Hoogvliet, namely that the settings as he observed them on 22 January 1998 were identical with the settings at the time of the accident on 15 December 1997. This is particularly as it is undisputed that adjustment manually would have been required to alter those settings. Moreover, counsel for the defendant (at Black, T78.20) at trial conceded that, "in any event on 21 November 1997 was the last inspection prior to the accident, possibly because it was near the end of court term, who knows, but the last inspection on 21 November 1997 according to the maintenance records was the annual inspection". That strongly supports the inference that no further inspection leading to manual adjustment occurred before the accident. I would therefore not place any reliance upon those matters raised by the appellant as contradicting the inference drawn by the trial judge. 57 However, the real problem which lies at the heart of this appeal is that the trial judge relied ultimately upon the proposition, correct but insufficient, that the accident would not have occurred had the adjustments been made which were subsequently made in January 1998. 58 Why insufficient? First, there was simply no evidence before the trial judge to conclude that the relevant Standards were not complied with. The evidence, such as it was, from the appellant's expert, Mr Bruce Oldham, suggests that the Standards were complied with; see Blue, 81 at para 25 and paras 29 and following. 59 Second, there was no suggestion that the lift did not have regular inspection, testing and maintenance, as again Mr Oldham confirms from his reading of the maintenance documentation. 60 Then there is no evidence of the kind required to satisfy the Shirt calculus in terms of the magnitude of the risk and degree of probability of its occurrence – we simply know that an accident occurred but have no knowledge of whether other accidents occurred or indeed did not in the year or so preceding. Finally, in terms of that calculus, there is no evidence of "the expense, difficulty and inconvenience of taking alleviating action", one way or the other. Nor is there evidence as to the conflicting responsibility which the respective defendants at trial had for providing a functioning lift system operating without unreasonable delays, consistent with reasonable safety. 61 One therefore cannot, on the limited evidence, conclude that the injury which occurred was reasonably foreseeable. But even were that not so, the question remains unanswered, what would a reasonable man do by way of response to this unquantified risk? That an accident occurred is indubitable. But that gives no guide as to either the probability or foreseeability of its occurrence. We do know that the respondent's own account of the accident is not entirely clear. That adds to the difficulties in the way of establishing liability by reason of any breach of a duty of care. 62 I therefore conclude that the appeal must succeed. I do so by reason of the matters earlier identified and particularly the failure of the plaintiff at trial to provide the evidence necessary to enable the trial judge properly to be satisfied that the elements of the Shirt calculus were made out so as to establish a breach of the duty of care by the party charged with maintenance of the lifts. 63 I put my reasons on the foregoing basis rather than accept the proposition that the trial judge failed to give adequate reasons in the sense of that obligation as articulated in Mifsud v Campbell (1991) 21 NSWLR 725 at 728. CONCLUSION and ORDERS 64 I consider that the appeal should be allowed and propose the following orders: 1. Appeal allowed. 2. Judgment of the trial judge of 28 February 2003 set aside and in lieu thereof judgment for the appellant. 3. The respondent to pay the appellant's costs of the trial and of the appeal and in respect of the letter, to have a certificate under the Suitors Fund Act, 1951. 65 TOBIAS JA: I agree with Santow JA. 66 PALMER J: I agree in the orders proposed by Santow JA for the reasons which his Honour gives. In my view, there was no evidence from which the trial judge could conclude that the injury to the respondent was caused by the lift doors closing with a force or at a speed which was inherently likely to cause injury. Further, and even more importantly, there was no evidence that prior to the accident the lift doors had been closing with a force or at a speed which was excessive by any industry standard or which was likely to cause injury. Absent any risk of injury which was observable prior to the accident, there was no basis upon which the appellant could be found liable in negligence for failing to prevent the respondent's injury. ********** Last Modified: 02/27/2004 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.